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SC grants extension for investigation and prolongs judicial custody of accused in terrorism case

Title: STATE OF NCT OF DELHI v RAJ KUMAR @ LOVEPREET

Citation: CRIMINAL APPEAL (ARISING OUT OF SLP(CRL.) NO.2503 OF 2021)

Dated on: 3.1.2024

Corum:  HON’BLE JUSTICE VIKRAM NATH, J.

Facts of the case

In the present case between state of NCT Delhi (appellant) and Raj Kumar (Respondent), the respondent was faced a series of charges, which included offences under unlawful prevention and arms act due to which he was arrested immediately. The case stared off with respondent being held by police in custody for 3 days followed by a transfer to the judicial custody. Later the respondent was moved to Mandoli Jail, New Delhi where he was made to stay for 90 days during which investigation was allocated.

The period framed for investigation lapsed after 90 days due to which the investigating officers sought extension for a period of two months siting multifaceted reasons and the trial court grated the extension for the same However, the operative part of the order highlighted that the extension was primarily sought due to pending mandatory sanction from the GNCT (Government of National Capital Territory) Delhi. Aggrieved by this decision the respondent filed for a bail application in the trial court where it was rejected. Undeterred, the respondent filed an appeal in the high court where his appeal relying upon precedents.

Legal provision

The present case involves various legal provisions a from different statues which are Sections 13/18/20 from unlawful activates and prevention act (UAPA): These sections charge the respondent with a number of charges including conspiracy, engaging in illegal activity, and belonging to a terrorist group.

Section 43D(2)(b) of (UAPA): Given the circumstances of the case, this section is essential. It contains clauses that allow the investigation period to be extended past the deadline set by the Code of Criminal Procedure. The justifications for the extension of investigation.

Sections 45(1) and 45(2) deal with getting approval for a prosecution. The State highlights the necessity of obtaining the outstanding section 45(2) sanction from the Government of the National Capital Territory of Delhi (GNCT Delhi).

Section 167(2) (CrPc): The High Court granted default bail to the respondent in accordance with this section. When the inquiry is not finished in the allotted period, it deals with the accused person’s release. Section 482: The High Court granted default bail based on a petition filed by the respondent under this provision to set aside the orders pertaining to the extension of the investigation term.

Issue

Whether the extension of the period of investigation beyond 90 days was valid and justified under section 43D(2)(b) of UAPA?

Court analysis and judgement

In the present case the Hon’ble SC after reviewing the matter held that the extension was allowed for legitimate reasons in accordance with section 43D(2)(b) of the UAPA and that the inquiry was finished within the extended term, setting aside the High Court’s ruling and restoring the Trial Court’s. in spite of providing several justifications for the request for an extension, including impending sanctions and an FSL report. The Supreme Court concludes that the High Court erred in relying on a TADA judgment, which had provisions that differed from those of the UAPA. The terrorist acts had an impact on both India and other countries, and the Supreme Court acknowledges the seriousness and magnitude of the offence and set aside the order of HC and allowed the appeal.

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Written by- Namitha Ramesh

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Bharaitya Sakshya Bill, 2023 : Major changes as regards to documents and electronic record

Introduction :

 

The union government of India in August 2023 proposed three bills which plan to change the criminal laws of the country. It also includes the Indian Evidence Act, 1872 which is now likely to be the Bharatiya Sakshya Adhiniyam, 2023.

The new bill introduces the ambit of electronic evidence and secondary evidence in a court of law. The definition of secondary evidence is expanded, including written evidence.

Following are the major changes made in the new bill.

S.NO Nature Indian Evidence Act Bharatia Sakshya Abhiniyam
1 Short title The Indian Evidence Act, 1972 – S(1) Bharatiya Sakshya Adhiniyam, 2023 – S(1)
2 Application Whole of India – S(1) Applies to all judicial proceedings before any court except cases in front of an arbitrator. – S(1)
3 Documents S(3) – Means any matter expressed or described upon any substance by means of letters, figures, or marks, or by more than one means. The document is inclusive of electronic and digital records. – S(2)(1)
4 Evidence All statements the court permits including electronic record which is called as documentary evidence – S(3) Evidence is inclusive of statements or any information given electronically or digitally -Section 2(1)
5 IT Act definitions Omitted – S(3) Whatsoever terms used as per the IT act will be referred to the Act itself. – S(2)
6 Confessions S(28) and S(29) were omitted which spoke about confessions made under coercion or promise of secrecy. Proviso clause which amalgamated both S(28) and S(29) together – Section 22
7 Relevancy of statements Colonial references were removed – S(37) Courts can now form opinions of a public fact based on electronic records or digital information. S(31)
8 Relevancy of statements with respect to any information contained in law books The law book should be published or printed under the authority of the Government – S(38) Addition of law books in e-form or digital form which the court can take into consideration. – S(32)
9 Facts of which court must take judicial notice Colonial references such as acts passed by the Parliament of the UK, Proceedings of the parliament of UK, accession and the sign manual of  the sovereign of UK or Ireland were omitted – S(57)

 

The court shall take notice of such as law including territorial operation, international treaties, conventions, parliament or state legislatures included – S(52)
10 Primary evidence Section 62 – The scope of primary evidence was widened Section 57 :

1. If an electronic or digital record is stored, and multiple copies are made of such files, each such copy would be regarded as primary evidence, provided there is an uniformity with the original document.

2. If electronic evidence is produced through custody, it will be considered as a primary evidence

3. Video recording which is recorded and transmitted is primary evidence

4. Temporary files are primary evidences if they are electronic in nature.

12 Secondary evidence Certified copies, copies from the original, oral documents were secondary evidence – S(63) Oral admissions, Written admissions, evidence of a person who has examined a document and is also skilled to examine such documents was added to the already existing scope of secondary evidence – S(58)
13 Admissibility of electronic record or digital signature N/A Treats electronic evidence as part of the documentary evidence- they have the same legal effect, validity and enforceability as paper records.
14 Admissibility of electronic record S(65B)(3) – storage of documents in multiple devices – omitted 1.     Information contained in Semiconductor memory which is produced by a communication device or recorded in any other form was added in Section 65B(1), subsequently renamed as Section 63

2.     The information can be stored in standalone mode, on a computer system or computer network or a computer resource or an intermediary.

15 Public and private documents Covered under S(74) – Public documents which are publicly available such as records forming the sovereign, tribunals, public officers etc and any other documents are private documents as per S(75) Public and private documents were covered in one Section – S(74)
16 Gazette publication in electronic form The court shall presume genuineness of every gazetter publication in electronic form Included digital record in its scope

Conclusion :

 

The major changes done in the Bill was in the format of the Act itself, such as numbering and clubbing redundant provisions together. Another major change done was the inclusion of digital records, electronic signatures and electronic records under the scope of documents which are admissible.

It is primitive to note that the Bill is in line with the Information Technology Act which presupposes the electronic record as a document itself.

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Written by- Sanjana Ravichandran

References :

 

  1. The Bharatiya Sakshya Bill, 2023: An Overview of the changes to Indian Evidence Act, 18721 (3/3) – https://www.lexology.com/library/detail.aspx?g=8ca4eb70-8e3f-4da8-a3a9-61b28e6e2aaa
  2. Major Changes Made in the Bharatia Sakshya Act, 2023, as regards Documents – https://indianlawlive.net/2024/01/17/major-changes-made-in-the-bharatia-sakshya-act-1923-as-regards-documents/
  3. Bharatiya Sakshya Bill: Implications of Proposed Changes to the Indian Evidence Act, 1872 – https://www.nls.ac.in/blog/bharatiya-sakshya-bill-implications-of-proposed-changes-to-the-indian-evidence-act-1872/

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SEBI to continue investigation on volatility of Adani shares: SC

Title: Vishal Tiwari v UOI

Citation: Writ Petition (C) No. 162 of 2023

Dated on: 3.1.2024

Corum:  HON’BLE MS. JUSTICE DR DHANANJAYA Y CHANDRACHUD, CJI

Facts of the case

In this present case the writ petition was filed by a bunch of petitioners before the supreme court under Article 32 of the Indian Constitution – To seek enforcement of Fundamental Rights. The petition raised concern over the decrease in the number of investors volatility and wealth in the present share market due to fall in the share prices of the Adani Group companies. It was alleged that the Adani group manipulated their share price and violated the SEBI regulations and provisions of securities legislation.

In this contention, the petitioners contended that the SEBI overlooked upon the securities and exchange in India and failed to conduct a verified investigation into the market manipulation by the Adani Groups. Due to the mishandling of SEBI’s investigation the petitioners urged the transform of case to special investigation team or to an alternate agency.

Additionally, the petitioners have also raised concerns to the Supreme court about the composition of the opinion of expert committee in this matter. They alleged that certain members of this expert committee have a conflict of interest and may be predisposed to bias, thereby questioning the impartiality in the proceeding. Their claim also emphasis on the importance of the unbiased and objective evaluation of the allegation made against the Adani group.

 Legal Provision

In the present case the petitioners filed a writ in the supreme court under the article 32 of the Indian constitution Article 32 of the Constitution: This article grants the right to constitutional remedies to the citizens of India, allowing them to approach the Supreme Court for the enforcement of their fundamental rights.

Issues

1.Whether there was a regulatory failure by SEBI?

2.Whether the members of the Expert Committee had a conflict of interest?

3.What are the recommendations of the Expert Committee?

 Court analysis and Judgement

The hon’ble court after analysing the merits of the case came to the conclusion that the SEBI did not fail in following the regulatory procedure and it acted promptly in conducting the investigation and took up appropriate actions and the court ordered for a restrictive time frame for the SEBI to complete its investigation and not extend it indefinitely. The court also observed that it cannot transfer the investigation from SEBI to another agency or a special investigation team as there is no strong evidence indicating that SEBI has portrayed inadequacy or bias in the investigation. The allegation against the expert committee and their conflict of interest is unsubstantiated and the court suggests to the government of India and SEBI to consider the suggestions made by the expert committee. Lastly the court disposed off the petition.  

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SC Quashes prosecution charges on public servants in alleged forgery case

Title: SHADAKSHARI v STATE OF KARNATAKA

Citation:  CRIMINAL APPEAL NO.256 OF 2024

Dated on: 17.1.2004

Corum:  HON’BLE MR. JUSTICE ABHAY S. OKA, HON’BLE MR. JUSTICE UJJAL BHUYAN

Facts of the case

Shadakshari, the appellant, filed a complaint alleging that Mallikarjuna (defendant No. 2) and that respondent No.2 and another were irregularly creating documents of property in the name of dead person despite knowing the fact that those were fake documents, such as, death certificate, family tree of the original successor of land of the appellant etc. for illegal gain. The said first information was received and registered by Haleebedu Police Station, Belur an additional party had illegally created fictitious property papers, such as family trees for their own personal benefit. The Haleebedu Police Station in Belur filed the complaint, citing many provisions of the Indian Penal Code (IPC). In Criminal Appeal No. the Supreme Court of India handed down a major ruling concerning Shadakshari, the appellant, and the State of Karnataka & Another. The issue concerns the quashing of a chargesheet and complaint that Shadakshari filed against Mallikarjuna, a Karnataka village accountant, alleging irregularities in the creation of false property papers.

Legal Provision

Respondent No.2 filed a petition under Section 482 Section 482 of the Code of Criminal Procedure (CrPC) is a provision that empowers the High Court to quash any criminal proceeding or complaint or FIR if it finds that it is an abuse of the process of law or that the ends of justice require it. It is a discretionary power that has to be exercised with caution and care by the High Court. High Court, in its initial order dated 05.01.2018, acknowledged the serious allegations against respondent No.2 but refrained from interference, citing the need for a proper investigation. Subsequently, a chargesheet was filed, leading respondent No.2 to approach the High Court again.

Issue

The main point of contention in this legal dispute is whether Section 197 Cr.PC. sanction is required in order to prosecute a public worker who is alleged to have committed crimes while performing official responsibilities. But the Respondent No. 2, a village accountant, requested immunity from prosecution, arguing that criminal proceedings are barred by the competent authority’s denial of sanction.

Court analysis and judgement

The Supreme Court examined the interpretation of Section 197 Cr. PC, stressing that the acts covered by it are only those carried out in the course of carrying out official responsibilities. Citing prior decisions, the court made it clear that Section 197 does not protect every action or inaction by a public worker, highlighting the requirement for a plausible link between the claimed behaviour and official duty and based only on the refusal of sanction, the court found that the High Court erred in quashing the complaint and chargesheet. It remitted the case for trial, ruling that the creation of false papers might not be regarded as an official obligation. The ruling makes it clear that a public worker is not always immune from prosecution just because they choose not to accept a reprimand and allowed the said appeal and ordered for the HC order to be set aside.

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Defence representative for a workman is not permissible under inquiry proceedings : Bombay HC

Lawyer shows the scales of justice in hand on a blurred background.

TITLE : Ajit Bhagwan Sawant V M/s Parveen Industries Pvt Ltd.

CORAM : Hon’ble Justice Sandeep V Marne

DATE :  8th January 2024

CITATION : WP No. 11801 Of 2023

FACTS

The primary issue in the petition is about right of a workman to avail services of a legal practitioners to defend himself in the inquiry process by the labor officer. The appeal is on the basis of the industrial court rejecting the application for permission to defend the workman. The petitioner is working in the defendant company and has been subjected to domestic inquiry. The inquiry officer is a person practicing law and is a qualified advocate. The petitioner claim that the inquiry officer hurried the proceeding without granting enough opportunity to defend him. The petitioner had filed for an interim application under Section 30(2) of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971.

LAWS INVOLVED

Bombay Industrial Employment (Standing Orders) Rules 1959 gives the power to another workman or trade union member to defend a workman under enquiry.

Section 21 of the MRTU and PULP act, no workman shall be allowed to appear or act or allowed to be represented in any proceedings relating to unfair labour practices.

ISSUES

Whether the employee can be permitted to engage services of a legal practitioner as a defence representative?

JUDGEMENT

Under the Model Standing Orders imposes a restriction on the right of the workman to choose his defence representative. The court held that the employer has the right to impose such restriction. Further, it was held that as per the provisions of Clause 25 of the Model Standing Orders the defence representative can only be a workman working in the same department or an office-bearer of trade union of which he is a member.

The advocate is not appointed by the company and not an employee of the respondent company.

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