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This is a clear instance of day light custodial death- The High Court of Delhi expresses disappointment over negligence of police.”

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Case Title: Setara Bibi v. State of NCT of Delhi & Ors. 

Case No.: W.P.(CRL) 1224/2024 

Dated: April 23, 2024 

Quorum: Justice Jyoti Singh 

 

FACTS OF THE CASE:  

The case’s facts revolve around In pursuance of Section 482 Cr.P.C. and Article 226 of the Indian Constitution, the petitioner has filed this writ suit on their behalf, requesting the following reliefs.  

a Writ/Order/Direction in the nature of Mandamus and/or any other Writ/Order/Direction in the nature of any other appropriate Writ was in effect, directing the Respondent to file a First Information Report (FIR) in accordance with Sections 166, 302, 325, 331, 352, 34 of the Indian Penal Code, 1860 against the Chief Investigating Officer, the SHO, and the other negligent police officers of Police Station Subhash Place.  

In brief, the case’s facts state that the husband of Setara Bibis died while in the custody of the respondents as a result of their simple carelessness. The petitioner is the deceased person’s 22-year-old widow, who has been circling the courts in the hopes of getting justice. The FIR has not yet been filed, and the application under Section 156(3) Cr.P.C. is still pending.  

 

CONTENTIONS OF THE PETITIONER: 

According to directions, Ms. Rebecca John, the Petitioner’s experienced Senior Counsel, limits the relief to requests. It is argued that the current case is related to the tragic passing of late Sheikh Sahadat on July 23, 2023, while he was purportedly in the custody of Subhash Place Police Station officers.  

Additionally, it is argued that the petitioner is a 22-year-old widow of the deceased who has been circling the legal system in an attempt to obtain justice. It is requested that the magistrate’s investigation into the death of the petitioner’s husband while in custody be opened on July 23, 2023, and that it remain open to this day, almost nine months later, with no indication of when it will be concluded. However, the application made in accordance with Section 156(3) Cr.P.C. is still waiting, and the FIR has not yet been filed.  

Furthermore, the petitioner is alleged to be a 22-year-old widow of the dead who has been recurrently involved in the court system in an effort to seek justice. It is requested that the inquiry into the petitioner’s husband’s death while in police custody be launched by the magistrate on July 23, 2023, and that it continue to be open now, nearly nine months later, without providing a timeline for completion. 

According to an order annexed to the petition and dated December 22, 2023, the learned Chief Metropolitan Magistrate of the North West District of the Rohini Courts stated that a FIR is not being filed until the Magisterial inquiry’s conclusion and the FSL report is received.  

The learned Senior Counsel states that this demonstrates the State’s total insensitivity to a grave situation in which a 32-year-old man was discovered dead while allegedly under police custody, with black and blue bruise marks covering his back and chest and swellings on his hands and legs. The family of the deceased captured this on camera when they visited the mortuary where the body was being held.  

 

LEGAL PROVISIONS: 

  • Section 482 Cr.P.C- Saving of inherent power of High Court. Nothing in this Code shall be construed as restricting or affecting the High Court’s inherent authority to issue orders as may be required to carry out any directive made pursuant to this Code, to stop misuse of the legal system, or to further further the goals of justice. 
  • Section 166 of IPC- Public servant disobeying law, with intent to cause injury to any person. Any public servant who willfully disobeys legal instructions regarding how they should conduct themselves in that capacity with the intent to cause harm to others or knowing that it is likely that they will, will be punished with either simple imprisonment, a fine, or both. This punishment can last up to a year.  
  • Section 302 of IPC- Punishment for murder. Anyone found guilty of murder faces a mandatory life sentence in prison or the death penalty, in addition to a fine.  
  • Section352 of IPC- Punishment for assault or criminal force otherwise than on grave provocation. Anyone found to have attacked or used unlawful force against another person without that person’s serious and unexpected provocation faces a maximum sentence of three months in prison of any kind, a maximum fine of five hundred rupees, or both. 

 

COURT’S ANALYSIS AND JUDGMENT: 

That court held that the following is directed that the Magisterial inquiry into the death of late Sh. Sheikh Sahadat be completed as soon as possible and no later than three months from today, taking into account the case’s facts and circumstances, the fact that the inquiry began on July 23, 2023, and is still pending, and the fact that the learned CMM is not moving forward with the application under Section 156(3) Cr.P.C. because of the pendency of the inquiry. 

Additionally, it was held that the learned CMM was instructed to move quickly with the matter, including giving the Director of FSL a directive to provide the report right away, in the case of a pending application under Section 156(3) Cr.P.C. It was requested of the Director, FSL to investigate the situation and make sure the FSL report is delivered to the relevant Court as soon as possible.  

This Court expressed optimism and hopes that the concerned magistrate handling the investigation and the knowledgeable CMM handling the application under Section 156(3) Cr.P.C. will investigate the matters with the necessary seriousness, empathy, and diligence and will act quickly.  

 

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Judgment reviewed by Riddhi S Bhora. 

 

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Delhi HC: The accused’s “arrest” or “custody” is a prerequisite for the application of Section 439 of the Cr.P.C.

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Case Title : Serious Fraud Investigation Office v. Dura Line India Pvt. Ltd. (DIPL) & Ors.

Case No: CC No. 272/2022

Quorum: Honorable Justice Navin Chawla

Facts of the case:-

Taking a look at the case’s facts, the criminal complaint mentioned above stems from an order issued by the Ministry of Corporate Affairs, Government of India (abbreviated as “MCA”) on December 5, 2018, pursuant to Section 212 (1)(c) of the Act, which commands the respondent to conduct an investigation into the business dealings of the accused company, M/s Dura Line India Pvt. Ltd. (DIPL). The respondent gave the MCA the inquiry report dated 25.03.2020 and a corrigendum dated 19.07.2021 after the inquiry was finished. The MCA granted the required instructions and directions to the respondent to file and begin the complaint against the accused parties, including the applicant(s) herein, via Order dated 19.03.2021, passed under Section 212 (14) of the Act. As a result, the complaint in this case was filed.

Legal Provisions:-

The above complaint has been filed by the respondent herein under Section 439(2) read with Section 436 (1)(a), (d) and Section 436 (2) read with Section 212 (6) and Section 212(15) of the Companies Act, 2013 (hereinafter referred to as the ‘Act’) read with Section 193 of the Cr.P.C., on which, by an order dated 16.07.2022 passed by the learned Trial Court, the Applicant(s) herein has been summoned as an accused for offence under Sections 447 and 448 read With Sections 447, 449, 96 read with Section 99; Section 135 read With Section 450 of the Act as far as applicants Abraham George and Mahendra Gambhir are concerned, and Sections 447 and 448 read With Section 447 of the Act as far as the applicant Yogesh Sudhanshu is concerned.

Appellant Contentions:-

On the other hand, the learned counsel(s) for the applicant(s),setting dependence on the judgments of the preeminent court in Bharat Chaudhary & Anr. V. State of Bihar & Anr., (2003) 8 SCC 77;Ravindra Saxena v. State of Rajasthan, (2010) 1 SCC 684; and of the division seat of this court in P.V. Narsimha Rao v. State (CBI),ILR (1997) I Del 507; and of the facilitate seats of this court in P.V. Narsimha Rao v. State (CBI), 1997 SCC Online Del 19, and Deepak Anand v. State & Anr. 2018 SCC Online Del 11875; and of The Tall Court of Uttrakhand in Saubhagya Bhagat v. State of Uttarakhand & Anr., (Judgment dated 24.08.2023 passed in expectant safeguard application No. 76/2021) yield that, just since a complaint/charge-sheet has been recorded, it cannot be said that an application beneath area 438 of the Cr.P.C. will now not be viable or that there will be no sensible premise for an trepidation within the charged that he should be captured or taken into guardianship once he shows up some time recently the learned trial court in compliance with the summons issued to him. They advance yield that the accommodation of the learned guide for the respondent that the candidates, on their appearance some time recently the learned trial court in reply to the summons, will be taken into ‘custody’ and not ‘arrested’, is misleading, because as ‘custody’ takes after ‘arrest’, as has moreover been clarified within the judgment of the preeminent court in Deepak Mahajan (Supra), depended upon by the learned advise for the respondent.

On the uncommon conditions to be met for being discharged on safeguard beneath area 212(6) of the Act, the learned counsel(s) for the applicant(s) submits that, as within the show case, the candidates were not captured amid the course of examination by the respondent, in terms of the judgment of the Supreme Court in Satender Kumar Antil (Supra) examined along with arrange dated 21.03.2023 within the same procedures, detailed as 2023 SCC Online SC 452, the common standards overseeing safeguard are to be similarly connected to the allow of expectant safeguard and, so, as the applicant(s) were not captured amid the period of examination, they are entitled to allow of expectant safeguard from this court. On the reason for the trepidation of the applicant(s) that they may be taken into guardianship in case they show up some time recently the learned trial court, the learned counsel(s) for the applicant(s) have placed reliance on the judgments of this court in Suman Chadha v. Genuine Extortion Examination Office, 2023 SCC Online Del 4174; Dr. Bindu Rana v. Genuine Extortion Examination Office, 2023 SCC OnLine Del 276; and, Taranjeet Singh Bagga v. Genuine Extortion Examination Office, 2023 SCC Online Del 893, to submit that people against whom comparable complaints were recorded by the respondent some time recently the same learned trial court, they were taken into care, in show disdain toward of them not being captured during the course of examination by the respondent, and they could get safeguard as it were from this court after a prolonged period of imprisonment.

They yield that, subsequently, the dread of the candidates, that they may be captured once they show up some time recently the learned trial court in reply to the summons, cannot be said to be whimsical or without any premise. They encourage yield that there are no affirmations of the applicant(s) being a flight chance or likely to alter with prove or impact witnesses. The learned guide for the candidate in safeguard Appln. 3739/2022-Sh. Yogesh Sudhanshu Kumar assist submits that the Candidate has joined the examination, the trial is likely to require long, the applicant has clean forerunners, may be a senior citizen and may be a Resident of Pune, Maharashtra, having multiple sicknesses.

He submits that the candidate was allowed intervals security vide arrange dated 15.12.2022. There’s no affirmation of him abusing the relief so allowed by this court. He submits that the fabric charges within the complaint relate to period after the candidate had surrendered.

Respondent Contentions

The learned advise for the respondent raised a preparatory protest on the practicality of the show applications. He submits that as the applicant(s) has been summoned on a complaint recorded by the respondent some time recently the learned trial court, an application beneath segment 438 of the Cr.P.C. by the applicant(s) would not be viable; the as it were cure accessible to the applicant(s) is to apply for safeguard beneath segment 439 of the Cr.P.C. The learned direct for the respondent submits that an application beneath segment 438 of the Cr.P.C. is viable as it were where the individual has reason to accept or an trepidation that he may get captured on the allegation of having committed a non-bailable offence. He submits that, in fact, the applicant(s) was not captured some time recently the recording of the complaint.

Once a complaint has been recorded, the learned trial court, after looking into the nature of the allegations that have been made within the complaint and upon hearing the applicant(s), may take the candidate into ‘custody’. He submits that there’s a distinction within the lawful meaning and suggestions of the terms ‘arrest’ and ‘custody’, as has been clarified by the preeminent court in its judgments in Directorate of Requirement v. Deepak Mahajan,(1994) 3 SCC 440 and Sundeep Kumar Bafna v. State of Maharashtra & Anr., (2014) 16 SCC 623.Setting dependence on the judgment of the Preeminent Court in Satender Kumar Antil v. Central Bureau of Examination & Anr. (2022) 10 SCC 51, he submits that the give of safeguard in case of a complaint beneath segment 212 (6) of the Act, is circumscribed by the uncommon conditions endorsed in that and the common rules for thought of an application for safeguard cannot be connected.

Putting dependence on the judgment of the preeminent court in Gurbaksh Singh Sibbia v. State of Punjab (1980) 2 SCC 565, he submits that for allowing expectant safeguard to any individual, it is vital for him to appear that he has reasons to accept that he may get captured. He yield that, in the present case, as the applicant was not captured amid the course of the examination by the respondent. He does not have any reason to accept that he may get captured once. He shows up some time recently the learned trial court in reply to the summons issued to him. He submits that just since the learned trial court.

Few cases, has rejected the application recorded by the denounced in that for being discharged on safeguard, it cannot moreover donate rise to such a conviction within the applicant(s) that in the event that they apply for safeguard some time recently the learned trial court. The same should be rejected and they might be taken into guardianship.

Court Analysis and Judgement:-

In the entire process of investigation leading to the filing of the complaint, the applicant(s) were never arrested by the respondent and it is not disputed that the applicant(s) have cooperated in the investigation. Applying the test as laid down by the Supreme Court in Satender Kumar Antil (Supra), therefore, in my view, the applicant(s) are entitled to grant of anticipatory bail. Needless to state, that nothing in this judgment should be taken to detract from the position that economic offences are serious in nature, and the allegations against the applicant and other co-accused, if proved at the trial, must be met with requisite punishment.

However, that punishment must follow conviction, and the severity of the allegations, by itself cannot be a justification for pre-trial incarceration. It is, therefore, ordered that in case of arrest, the applicant(s) be released on bail in CC No. 272/2022 titled Serious Fraud Investigation Office v. Dura Line India Pvt. Ltd. (DIPL) & Ors. Pending before the learned trial court, subject to furnishing a personal bond in the sum of Rs.50,000/- each, with one local surety each of the like amount to the satisfaction of the learned trial court, And further subject to the following conditions:

i .The applicant(s) shall appear in the trial unless otherwise exempted from personal appearance by the learned trial court.

 ii. The applicant(s) shall not contact, nor visit, nor offer any inducement, threat or promise to any of the prosecution witnesses or other persons acquainted with the facts of case. The applicant(s) shall not tamper with evidence nor otherwise indulge in any act or omission that is unlawful or that would prejudice the proceedings in the pending trial;

iii. In addition to the above conditions, it is specifically directed that the applicant(s) shall also not, whether directly or indirectly, contact or visit, or have any transaction with any of the officials/employees of the banks or financial institutions, companies, entities, etc., who are concerned with the subject matter of the case, whether in India or abroad;

The bail applications are disposed of in the above terms. The pending applications are disposed of as infructuous.

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Bombay High Court Appoints Paternal Aunt as Legal Guardian with Visitation Rights in Guardianship Case: considering the child’s best interest

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Title: ABC v. XYZ

Citation: Guardianship Petition No. 9 of 2023

CORAM: Hon’ble R.I. Chagla J. 

Introduction

This case revolves around a guardianship petition filed before the Bombay High Court. The court was tasked with determining the legal guardian of a four-year-old boy while also considering the rights of the child’s parents to have frequent visitation. The court’s decision aimed to strike a balance between the child’s best interests and the rights of the parents.

Facts of the Case

The petitioner, identified as ABC, filed a guardianship petition seeking legal guardianship of a four-year-old boy.

The child, referred to as XYZ, is the son of the petitioner’s late brother and his wife.

The child’s mother had expressed her inability to care for the child, given her personal circumstances and other responsibilities.

The petitioner, being the paternal aunt, expressed her willingness and capability to provide a stable and loving environment for the child.

The child’s father initially opposed the petitioner’s petition for guardianship.

Court’s Analysis and Decision

The paramount consideration of the court in guardianship matters is the best interests of the child. The court examined the child’s age, emotional well-being, and potential future prospects. The court recognized the inherent and fundamental rights of parents in the upbringing of their child. The child’s father had initially opposed the petitioner’s guardianship, which the court duly considered. The court took into account the mother’s expressed inability to care for the child. Her willingness to entrust the child to the petitioner’s care was an important factor in the court’s analysis. The court evaluated the petitioner’s living situation, financial stability, and emotional preparedness to provide a suitable environment for the child. The petitioner demonstrated a strong commitment to the child’s well-being. Depending on the child’s age and maturity, the court may consider the child’s expressed wishes. While the child was relatively young, the court took into account his comfort and emotional connection with the petitioner.

After a comprehensive review of the facts and circumstances, the court arrived at the following decision: The Bombay High Court, in Guardianship Petition No. 9 of 2023, ruled in favor of the petitioner, ABC. The court appointed the paternal aunt as the legal guardian of the four-year-old boy, XYZ. This decision was reached after considering the child’s best interests, the mother’s inability to care for the child, the father’s initial opposition, and the petitioner’s commitment and suitability to provide a loving and stable environment.

The court also recognized the importance of the child’s relationship with his parents and ordered that XYZ’s parents be granted the right to visit him frequently. This decision aimed to balance the child’s best interests with the rights of the parents and ensure his overall well-being and development.

In summary, the court’s decision granted legal guardianship to the paternal aunt while preserving the child’s relationship with his parents through frequent visitation.

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Written by- Tarishi Verma

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Delhi High Court Upholds Mother’s Custody Right: Balancing Work and Welfare in Custody Battles 

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 Case Title: Tirpat Singh Bansal v. Jagwant Kaur 

Date of Decision: September 26, 2023 

Case Number: MAT.APP.(F.C.) 32/2023 

Coram: Hon’ble Mr. Justice Suresh Kumar Kait and Hon’ble Ms. Justice Neena Bansal Krishna 

 

Facts 

   

  • The appellant, Tirpat Singh Bansal, challenged an order dated 17.01.2023 passed by the Family Court, Delhi, in a case titled “Jagwant Kaur vs. Tirpat Singh Bansal.” The order granted interim custody of their minor daughter to the respondent-wife, Jagwant Kaur.  
  • The parties were married on 01.11.2017, and they had a daughter born on 08.01.2019.  
  • The appellant alleged that the respondent-wife, a geologist with the Geological Survey of India, had a demanding work schedule, which led to their separation. He claimed that she left the child with him and subsequently wanted a divorce and custody of the child.  
  • Various legal proceedings were initiated, including guardianship petitions, virtual visitation orders, and interim custody orders. 

 

Issues 

   

  1. Whether the Family Court’s order granting interim custody of the minor child to the respondent-wife was correct? 
  2. How should the visitation rights of the appellant-husband be determined for the welfare of the child?

 

Contentions 

 

  • The appellant alleges that the respondent-wife, who works as a geologist, often travels to remote areas for work, making it difficult for her to provide proper care and education to the child. He claims that he is better equipped to care for the child as he works from home. The appellant also asserts that he has borne all the expenses related to the child’s upbringing. 
  • The respondent-wife, on the other hand, argues that she should be granted custody based on Section 6 of the Hindu Minority & Guardianship Act, 1956, which typically favors the mother’s custody for children under the age of five. She states that she has been the primary caregiver since the child’s birth and that her work commitments should not be held against her. She also points out that she has good financial stability and access to medical facilities. 

 

Observation of the Court 

 

The court observed that the primary consideration in such cases is the welfare of the child. It noted that the child had been in the custody of her mother since birth, with brief exceptions due to official obligations. The court also discussed the provisions of Section 6 of the Act and cited relevant Supreme Court precedent in the case of Githa Hariharan Vs. Reserve Bank of India, (1999) 2 SCC 228 regarding the definition of “natural guardian.” 

 

Legal Principles Applied 

   

  • Section 6(a) of the Hindu Minority & Guardianship Act, 1956, stipulates that the interim custody of a child below the age of five years should ordinarily be with the mother.  
  • The welfare of the child is the paramount consideration in custody disputes.  
  • Courts may consider deviating from the mother’s custody only for strong reasons, and it can be replaced by another guardian if it is in the child’s best interest. 

 

Decision of the Court 

 

The court upheld the Family Court’s decision to grant interim custody to the respondent-wife, considering the child’s age, the mother’s capability, and the fact that the child had been primarily in her care. The court modified the visitation rights of the appellant-husband to ensure the child’s welfare. 

 

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Written by – Ananya Chaudhary 

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