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If any soldier’s whereabouts are unknown or who has not been heard of from the last ten years will be presumed “dead”. The Jammu & Kashmir High Court presided over by Hon’ble Justice Sanjay Dhar in the case of Madhu Devi V/s Union of India & Ors., [OWP 1440 of 2017].

Desertion is an act of abandonment of military duty without permission and with an intention of not returning back for more than 10 years.

In the instant case, it was found that husband of Madhu devi (Petitioner), serving as Head constable in 16 Battalion CRPF went missing in June 2010. Petitioner was being informed by the Company Commander Unit about the missing of her husband. Both respondent and petitioner tried to contact the soldier, but were unable to do so. As a result, on September 6, 2010, petitioner’s husband was declared as ‘Deserter’ from CRPF by the court.

Later on, Petition was being filed by the petitioner asking to declare her husband as ‘Dead’ and not ‘Deserter” on the grounds that from the last 7 years since she’s been trying to find her husband and has also issued notices on different media platforms but all her efforts went in vain. Petitioner also argued that respondents themselves couldn’t trace her husband’s whereabouts in the last more than 7 years i.e, w.e.f 3-06-2010.

The court relied on the case of N. Pankajam V/s State of Tamil Nadu (Writ Petition No. 5480) where Madras court dealt with somewhat similar circumstances.

The Court after hearing the arguments of both the parties came to a conclusion that since it’s been more than 7 years from the day soldier went missing and none of the parties have been able to trace and prove if the soldier is still alive, he’s no more to be considered as ‘Deserter’ and must be presumed ‘Dead’ according to Section 108 of Indian Evidence Act.

The HC stated that “Section 108 of Indian Evidence Act casts burden of proving that a person is alive, who has not been heard of for seven years upon the person who affirms it”.

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A compensation for Rs 50,000 each was granted to the two petitioners that were illegally detained in the jail. The two Petitioners are ex-military persons and were illegally detained by the Police authorities and the executive magistrate for six days. The Bombay High Court presided over by J. T.V. Nalawade & J. M.G. Sewlikar laid this ratio in the case of Arun Tagad & Anr. Vs. State of Maharashtra & Ors., [Criminal Writ Petition No. 574 of 2013].

In January 2013 35-year-old women, had lodged an FIR against the Petitioners that during a quarrel they had assaulted her. The reason for the quarrel was because her family did not allow them to use bullocks and carts for fetching water. The Petitioners were later arrested on the basis of the relevant section of the India Penal Code i.e. Section 323, 324, 504 & 506 of the Code. However, they were released on furnishing a personal bond and surety. Later, as per the report they were arrested again outside the court campus by the same police and were taken before the Executive Magistrate. The Executive Magistrate ordered them to furnish interim bond with two sureties of Rs. 25,000 each. The Petitioners pleaded to accept cash security instead of surety bond as it would take some time. The Executive Magistrate rejected their plea and only after 6 days they could get bail.

The Petitioner submitted that the acts of the Police authority and Executive Magistrate are mala-fide and the arrest was illegal which also violated their fundamental rights under the Constitution. The Respondent submitted that the acts were taken as a preventive measure against the Petitioners.

The Division bench of the Bombay High Court was of the opinion that, “The order of the Executive Magistrate asking the present Petitioners to execute interim bonds of aforesaid nature is illegal. The bond was involving onerous condition, two sureties having solvency certificates of Rs.25,000 each for each opponent. These circumstances show that there were mala fides and the intention of the police was to see that the Petitioners are arrested and they are kept behind bars for a few days. The record and circumstances show that the Executive Magistrate acted as per such desire of police and he did not apply his mind. The Executive Magistrate ought to have gone through the aforesaid provisions which show that he had no such jurisdiction.”

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The court said that in the case of a rape victim who has not attained the age of majority, the medical termination of pregnancy can happen even after the gestational period of 26 weeks by Hon’ble Justice Justice P.V.Asha of High Court of Kerala in the case ABC vs. State of Kerala and Ors. [Civil Writ Petition No.29209 of 2020 (A)]. 

This decision was made in furtherance of a writ petition filed which is also associated with a criminal case of rape. The case involves a 15-year-old minor rape victim who is carrying about 23 weeks of pregnancy Her parents assert that the continuation of her pregnancy would be contrary to her interest as she was not mentally prepared to accept it. Further, she was also traumatized by the sexual assault done to her.

An interim order was passed by the court for constituting a medical board that included specialists in the matter. Their opinion was of utmost importance to the court under Section 5 of the Medical Termination of Pregnancy Act, 1971. The relevant provisions mentioned by the court state that the existence of this exception concerning the length of the pregnancy is allowed as long as medical specialists are in favor of MTP.

The opinions read that the continuation of pregnancy of teenage girls, in general, has a high risk of developing serious medical conditions. Also, the failure to conduct MTP may result in excessive blood loss and thereby be a threat to her life.

The court took note of past judgment where the Supreme Court permitted termination even though the gestational age was 25-26 weeks in the case of A.V Union of India (2018) 4 SCC 75. Another aspect to be dealt with was with the age of the minor and for this the court referred to Murugan Nayakkar v Union of India: 2017 SSCC online SC 1092 where termination of pregnancy of a 13-year-old child was allowed when the gestational age was 26 weeks.

The court also ordered to take proper care of the child if the baby was born alive. For this, it took the help of the judgement laid down in  XYZ v. Union of India and Others [2019(3) Bom, CR 400)] where it was held “In case a child is born alive, despite attempts at the medical termination of pregnancy, the parents, as well as the doctors, owe a duty of care to such child. The best interests of the child must be the central consideration in determining how to treat the child. “

After taking into consideration the aforementioned judgments, the court concluded that the child was unprepared in light of the trauma that she had gone through. Moreover, the opinion that was given by the medical professionals also gave weightage to the judgement of the court.

The court allowed the petition and directed the respective authorities to take action accordingly with immediate effect.

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Offences under the Negotiable Instrument Act can be proved even when the source of income from the complainant is not disclosed in matters of debt repayment. This was decided by Hon’ble Justice P.N Desai of the High court of Karnataka in Mohan Kumar vs. Syed Mohd Ali [Criminal Appeal 200033 of 2014].

In this case of appeal, the appellant is the actual complainant of the case decided in Trial Court. There existed a fiduciary relationship between the appellant and the defendant. The appellant advanced a loan of about Rs.10 Lakhs to the accused, on account of good friendship. However, after multiple reminders and sending a legal notice, the accused failed to repay the debt. Therefore complaint was filed against the accused under Section 136 of the Negotiable Instruments Act, 1881. The lower courts acquitted the accused because the source of payment of the amount and presence of any person during the said payment by the appellant was not proved. The Trial court also found that it was violative of Section 269 of the Income Tax Act.

In the instant case, the accused took the defense that there is no legally enforceable liability on him. He used the absence of any security documents for the transaction to validate this contention. The defense also accused the appellant of running a chit business and that the blank check issued was misused by him.

The counsel for the defense, on the other hand, stated that presumption under Section 114 of the Indian Evidence Act and 139 of the Negotiable Instruments Act was available to the appellant. Further, the appellant produced documents of plot ownership thereby suggesting the capacity of the appellant to lend a loan of a huge amount to the defendant. Reliance mas also made on recent cases of Supreme Court like the AIR 2020 SC 945 APS Forex Services Pvt. Ltd., vs. Shakti International Linkers and others.

The court categorically stated when there are insufficient funds then there is a statutory presumption in favour of the holder of the cheque that it is dishonoured. The burden to rebut is on the accused and not on the appellant. It further stated that an Issue of debt is no precondition to remove the presumption under section 139 of the Negotiable Instruments Act.

It referred to the landmark judgment of the Supreme Court with a similar set of facts that is AIR 2012 SC 1876 Rohitbhai Jivanlal Patel vs State of Gujurat and another. Here, it was held here that “the trial court suffered from perversity and fundamental error of approach. The observations of the Trial Court that there was no documentary evidence to show the source of funds with the respondent to advance loan would have been relevant if the matter was to be examined beyond a reasonable doubt.”

The Court finally decided in favor of the appellant saying that the observation made by lower courts do not nullify the presumption existing in favor of the complainant by virtue of Sections 118 and 139 of the NI Act.

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Identity of the rape survivors is not be disclosed in the proceedings and judgments. Further, all the health professionals are strictly directed to desist from practicing the “two finger test” or “pre-vaginum examination” on the rape survivors. The Jammu & Kashmir high court presided over by C.J. P. Mithal & J. Sanjay Dhar laid this ratio in the case of State of J&K Vs. Mohd. Imran Khan, [SLA No. 38/2018].

The brief facts of the case are that the Prosecution sought a leave to appeal against the judgment passed by the Principal judge of the Trial Court whereby the Respondent was acquitted of the charge for offence under Section 376 of IPC. The Prosecutor contended that the Prosecutrix was a minor and had been kidnapped and a FIR was filed by the maternal grandfather later it was found that the Respondent had kidnapped and raped her. Hence a charge sheet for rape was filed against the Respondent. The Trial Court acquitted the Respondent on the basis of technicalities of the statement of the prosecutrix and for several other flimsy reasons.  Hence, the leave to appeal was filed.

The High Court allowed the leave to appeal against the impugned judgment. The Division bench of the Court also observed that the victims name was repeatedly mentioned in the proceedings and the judgment. The Court with respect to this matter stated that, “Although, prohibition contained in Section 228A may not strictly apply to the judgment of a Court, yet the Courts must avoid disclosing the name(s) of prosecutrix in their orders and judgments, so as to avoid embarrassment and humiliation to a victim of rape. Rape is not merely a physical assault but it is destruction of the personality of the victim. Therefore, Courts have to act responsibly and with sensitivity while dealing with the cases of rape, particularly, while referring to the prosecutrix.” The court also relied on a few landmark judgments like the State of Punjab v. Gurmeet Singh, (1996) 2 SCC 384 & Bhupinder Sharma v. State of Himachal Pradesh (2003) 8 SCC 551, that state that “the bar imposed under Section 228A IPC did not in term apply to the printing or publication of judgments of the High Courts and the Supreme Court because of the explanation to the said provisions, yet keeping in view the social object of preventing the victims or ostracizing of victims, it would be appropriate that in judgments of all the Courts i.e. trial Courts, High Courts and the Supreme Court the name of the victim should not be indicated.”

The Court also took note of the fact that the “two finger test” had been used by the medical professionals in this case, which has been held as an unconstitutional practice by the Supreme Court as it violates the right of rape survivors to privacy, physical and mental integrity and dignity. The court further observed that, “The International Covenants on Economic, Social and Cultural Rights, 1966, United Nations Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, 1985 provide that rape survivors are entitled to medical procedures conducted in a manner that respects their right to consent. As per these Covenants, State is under an obligation to make such services available to survivors of sexual violence and that proper measure should be taken to ensure their safety and there should be no arbitrary or unlawful interference with their privacy.”

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