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A casual remark that is likely to cause harassment in ordinary course of thing, made against the applicants would not fall within the term ‘instigation’: Gujarat High Court

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Pravinbhai Jivrambhai Deria vs State Of Gujarat on 23 May, 2023

Bench: Honourable Justice Ilesh J. Vora

R/CRIMINAL MISC.APPLICATION NO. 11161 of 2016

Facts

In the instant case, the second respondent had filed a complaint on behalf of the deceased(his brother) who committed suicide at his village. The deceased was driving a rickshaw for his livelihood. He had borrowed Rs.6 lakh from accused Nos.1 to 10 and was paying unbearable amount of interest. The deceased, however could not repay the principal amount as well as the interest, as a result, he was under tremendous pressure and distress. Before he could commit suicide, he wrote a letter addressed to PSI, Gadh Police Station, mentioning therein the harassment meted out to him by the accused, on the issue of borrowed money. He mentioned that the accused did not extend the time to repay the money and threatened him to take away his rickshaw and did not allow him to do his business.

In this circumstance, the deceased Hasmukhbhai consumed poisonous substance and committed suicide. Being in critical condition, he was taken to Palanpur Civil Hospital where his statement in the form of dying declaration was recorded by the Executive Magistrate, Palanpur, wherein, he disclosed the facts of borrowed money allegedly taken from persons named in the statement. The investigating officer had also recorded the statement of the deceased on the same day under Section 161 of the Cr.P.C., wherein, the reasons for his suicide having been disclosed before the police and subsequently, he died at Civil Hospital. Under section 161, an investigating officer may orally examine any witness where such person is acquainted with the facts of the case.

The second respondent based on the input gathered by him at the hospital, lodged an FIR against 10 persons, including the applicants. After completion of investigation of the case, the IO filed a chargesheet against the accused for the aforesaid offences.

The applicants have instituted the case to quash the petition mainly on the ground that the charge against them under Section 306 of Indian Penal Code is not sustainable and the continuation of the proceedings against them is nothing, but a sheer abuse of process of law and Court.

The learned counsel appearing for the applicants contended that the FIR lacks the ingredients of section 306 of IPC(Abetment of suicide) as there is an absence of any sort of instigation or any positive move on the part of the applicants, causing the deceased to commit suicide

On the other hand, the counsel for the informant contended that since material evidence like the suicide note, dying declaration has been recovered, there is a prima facie case made out against the applicants.

Judgement

The honourable judge, after going through the facts and circumstances of the case held that the accusations of harassment and preventing the deceased in doing his business of rickshaw driving seem to be general in nature and vague. There are no specific allegations made against the applicants that they individually subjected mental harassment on the issue of finance advanced by them. In such circumstances, prima facie it appears that the deceased was in depression as he could not repay the handy loan obtained from various persons, as a result, he decided to end his life.

The contents of the suicide note and the statement of the deceased does not anyway disclose any incriminating information in the nature of instigation, provocation or compelling the deceased to commit suicide. Due to these reasons, the Court quashed the FIR against the applicants

JUDGEMENT REVIEWED BY AMIT ARAVIND

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“PRIME LEGAL is a full-service law firm that has won a National Award and has more than 20 years of experience in an array of sectors and practice areas. Prime legal fall into a category of best law firm, best lawyer, best family lawyer, best divorce lawyer, best divorce law firm, best criminal lawyer, best criminal law firm, best consumer lawyer, best civil lawyer.”

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Mens rea and Intention are two crucial elements to invoke the provision of Section 306 of IPC(abetment of suicide): Gujarat High Court quashes charges against the applicants

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Ashwinbhai Mansukhbhai vs State Of Gujarat

Bench: Honourable Justice Ilesh J. Vora

R/CRIMINALMISC.APPLICATION NO. 2749of 2021

JUDGMENT DATED: 24/05/2023

Facts

In the instant case, the deceased Ashok Chavda, employee of Rajkot Municipal Corporation committed suicide by hanging himself in Hotel Miracle at Ahmedabad. He was recruited as a labourer and work charge employee. On 10.11.2012, deceased along with other employees of the same cadre were transferred from Malaria branch to Drainage branch at Bedinaka, Rajkot. The applicant – Chirag Pandya being a City Engineer of RMC was in control and management of Drainage Department of Rajkot, whereas, the other applicants – Jitendrasinh Zala and Ashvin Kanjaria were serving on the post of Dy. Engineer and Asst. Electrical Engineer, RMC respectively. The deceased person was dissatisfied with his transfer posting and was irregular in attending the office. After resuming the duty at the drainage branch, he remained absent for 72 days.

He committed suicide on 4.7.2012. Before the incident of suicide, he wrote a letter addressed to Police Commissioner, Rajkot, alleging therein that the applicants intentionally insulted and intimidated him in front of other employees with an intent to humiliate and harass him as he belongs to a scheduled caste

After the suicide, the father of the deceased lodged an FIR against the applicants to get them behind bars. In view of the registration of the offence, the applicants have approached this Court, seeking quashing of the FIR mainly on the ground that the applicants hold higher posts in the establishment of Rajkot Municipal Corporation and any act done in discharge of their legal duty without there being any intention on their part to abet the commission of suicide by class IV employee, no ingredients of Section 306 of Indian Penal Code are satisfied. Section 306 deals with abetment of suicide.

The advocate for the applicants contended that the plain reading of the FIR and the suicide notes cannot satisfy the ingredients required to convict a person on the basis of section 306.

The advocate for the respondent held that the allegations levelled in the FIR and facts disclosed in the suicide notes, constitute a cognizable offence and based on this, the FIR was registered and still investigation is not completed due to interim order passed by this Court. Thus, it was urged that at this stage, the criminal proceedings cannot be quashed when the allegations made in the FIR and suicide notes disclosed the commission of offence

Judgement

The Court after hearing the contentions of both the parties held that there is no allegation that the deceased was continuous harassed and insulted deliberately without justifiable cause or reason. A simple act of issuing notice or memo for the irregular attendance of the deceased, for which he was otherwise duty bound to serve the department, would definitely not amount to abetment of things as defined under Section 107 of Indian Penal Code.

Thus, considering the aforesaid aspects as discussed hereinabove, the applicants had no intention to drive the deceased to commit suicide and they could not anticipate the same. To bring home the applicants for the charge under Section 306 of Indian Penal Code, the intention and mens rea are main ingredients of the offence of abetment and they are lacking in the present case.

For these reasons, the Court was confident that a case of abetment of suicide fails to sustain and hence quashed the charges against the applicants

JUDGEMENT REVIEWED BY AMIT ARAVIND

click here to view judgement

“PRIME LEGAL is a full-service law firm that has won a National Award and has more than 20 years of experience in an array of sectors and practice areas. Prime legal fall into a category of best law firm, best lawyer, best family lawyer, best divorce lawyer, best divorce law firm, best criminal lawyer, best criminal law firm, best consumer lawyer, best civil lawyer.”

 

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A Public information officer is not liable to disclose personal information if it warrants a clear breach of privacy of the individual: Gujarat High Court

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High Court Of Gujarat vs Gujarat Information Commission on 17 January, 2023

Bench: Honourable Justice Biren Vaishnav

R/SPECIAL CIVIL APPLICATION NO. 18152 of 2016

FACTS

The respondent no: 2 who is a Judicial Officer submitted an application seeking information in reference to

  • Details of Home town, place of practice, personal data form, relation with any Judicial Officer/Advocate
  • Decisions of Hon’ble High Court of Gujarat on the representations for transfer submitted by the judicial officers of his batch
  • Certified copy of representations for transfer submitted by the judicial officers of his batch

Among other things.

The application along with the money order was received by the Public Information Officer. Thereafter, the Public Information Officer initiated a correspondence with the concerned department for collecting the information as sought for by the respondent that involved a considerable time. He provided all the information requested by respondent no: 2 except the above mentioned information sought by the respondent. Aggrieved by the action of the Public Information Officer, the respondent filed First Appeal No.37 of  2014  on  11.04.2014 before the Appellate Authority. He contended  that information with regard to certain items viz. items had not been provided. On hearing the parties, the Public Information Officer addressed a reply to the respondent providing the details of the information sought by him. In reference to some of the points for which the information was not provided, the public information officer stated that the information was highly personal and hence he could not provide it.

The Appellate Authority after examining the case rejected the appeal of the respondent. While rejecting  the appeal the Appellate Authority observed that since some of the information was personal in nature, it could not be provided

Aggrieved by the order of the First Appellate Authority, the respondent no: 2 filed an appeal before the respondent no.1. By the impugned order dated  23.06.2014, the Appellate Authority has passed a judgement directing  the Public Information Officer to provide the remaining information available to the respondent no.2 within 15 days from the receipt of the order. It is on this ground that the petition has been filed.

The advocate for the petitioner submitted that the Information Commission could not direct the respondent to  provide the information which it itself could not provide as it pertained to third party and in view of the embargo imposed in Section 8(1)(j) of the Act, it was rightly not provided. Section 8(1) (j) of the RTI Act, 2005 encapsulates that information which relates to personal information the disclosure of which has no relationship to any public activity or interest, or which would cause unwarranted invasion of the privacy of the individual, unless the CPIO or SPIO or the Appellate Authority is satisfied that the larger public interest justifies the disclosure of such information should be exempted from disclosure

Judgement

The Gujarat High Court after considering representation from both the parties held that the above mentioned information sought by respondent no: 2 was evidently personal and the appellate authority rightly rejected such information under section 8(1)(j) of the RTI Act.

The Honourable judge also held that any information between the employer and employee solely governed by the service rules and falls within the ambit of ‘personal information’ and the disclosure of which would cause unwarranted intrusion of privacy need not be disclosed.

The Court held that since the above mentioned information is highly personal and warrants a clear breach of privacy, it is not liable to be disclosed.

JUDGEMENT REVIEWED BY AMIT ARAVIND

click here to view judgement

“PRIME LEGAL is a full-service law firm that has won a National Award and has more than 20 years of experience in an array of sectors and practice areas. Prime legal fall into a category of best law firm, best lawyer, best family lawyer, best divorce lawyer, best divorce law firm, best criminal lawyer, best criminal law firm, best consumer lawyer, best civil lawyer.”

 

 

 

 

 

 

 

 

 

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The Gujarat High Court declares G-DOT Guidelines requiring a domicile certificate for registration as a recipient on the State list for cadaveric organ transplantation to be unlawful and unconstitutional

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Vidya Ramesh Chand Shah v. State of Gujarat

R/SPECIAL CIVIL APPLICATION NO. 18056 of 2022

Presided by: HONOURABLE MR. JUSTICE BIREN VAISHNAV

Date: 21/11/2022

Facts

One of the petitioners is both an Indian national and a Canadian citizen. She was told to get an organ transplant after receiving a diagnosis of a kidney with reduced functionality. The petitioner must register as a recipient under the Transplantation of Human Organs and Tissues Act, 1994, and its Regulations in order to undertake such a transplant. However, her application for registration was turned down on the grounds that she would need a residence certificate. The police authorities have denied a request for such a certificate in the contested correspondence on the grounds that the petitioner is a Canadian citizen, not an Indian citizen.

Similar plight was highlighted by other petitioners-
A person’s registration under the 1994 Act was denied because she was registered on the non-domicile list citing paragraphs 13.1 and 13.10(C)(2) of the G-DOT Guidelines was a resident of Madhya Pradesh and of Gujarati ancestry. According to the resolution from 14-03-2019, inhabitants of the domicile are given priority, and only after that list is used up will non-domicile list members be granted the organ. Another petitioner, a permanent resident of Gujarat since 2015, whose application for a domicile certificate was denied by the appropriate authorities on the grounds that the petitioner does not qualify for a domicile certificate because they are from the State of Jharkhand and have only lived in Ahmedabad since 2015, which is less than 10 years.

It was discovered that a donor can consent to the removal of their organs after death if they wish to donate after passing away. Living donors who wish to make a donation prior to passing away might do so by making it to a close relative or a close relative who is a foreign national. After receiving the Authorization Committee’s previous consent, this must be done. Gujarat Deceased Donor Organ and Tissue Transplantation Guidelines were also mentioned in relation to cadaver transplants. The Court ruled that the argument to back the requirement of a domicile certificate to link a total ban on organ donation by an Indian donor to a foreign individual is ineffective since, even then, the requirements of a necessary requirement ownership of a domicile certificate are not related to the concept of a living donor.

Judgement

The Court noted that Section 7-B(2) of the Citizenship Act, 1955 provides or enumerates such rights which an Overseas Citizen of India cardholder shall not be entitled to in comparison to the rights granted to an Indian Citizen with regard to denial of registration under the 1994 Act to an Overseas Citizen of India. However, under Articles 14 and 21 of the Constitution, such rights cannot be interpreted to limit the availability of rights to a “person.” The State authorities’ argument that only those rights other than those listed under Section 7B (2) will be available if so notified is therefore misguided. When it comes to the “Right to Life” as defined by Article 21, this cannot be upheld.

The Court observed that Art. 21 is at the heart of the Constitution, a Fundamental Right, available to all persons. According to the court, when interpreting Article 21, the Supreme Court has held that the “Right to Health” is an integral part of the “Right to Life” and that the State has a constitutional obligation to provide health facilities. The court cited significant cases dealing with the significance of Art. 21 and its accessibility to all people. It is unlawful and unconstitutional to deny the petitioners who do not reside in Gujarat medical care. The State has attempted to enact a new requirement of a domicile certificate for registration of a patient for enrollment on the State List for organ transplant through Paragraphs 13(1) and 13(10)(C). The introduction of such criteria by a guideline, in the nature of executive instructions is in colourable exercise of powers

JUDGEMENT REVIEWED BY AMIT ARAVIND

click here to view judgement

“PRIME LEGAL is a full-service law firm that has won a National Award and has more than 20 years of experience in an array of sectors and practice areas. Prime legal fall into a category of best law firm, best lawyer, best family lawyer, best divorce lawyer, best divorce law firm, best criminal lawyer, best criminal law firm, best consumer lawyer, best civil lawyer.”

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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No mercy will be extended to someone who violates the POCSO Act: Gujarat High Court denies the request for bail

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NIHAR RANJITBHAI BARAD V STATE OF GUJARAT

PRESIDED BY: HONOURABLE MR. JUSTICE SAMIR J. DAVE

R/CRIMINAL MISC.APPLICATION NO. 18985 of 202

Date: 30/11/2022

Facts

The victim in this instance is 12 years old, and the accused is accused of violating Sections 10 and 18 of the POCSO Act as well as Section 354-A of the Penal Code, 1860.  Section 10 of POCSO Act deals with punishment for aggravated sexual assault which is not less than 5 years but may extend to 7 years. Section 18 of the POCSO Act states that whoever attempts to commit an offence shall be punished with imprisonment of any description provided for the offence, for a term which may extend to one-half of the imprisonment for life or, as the case may be, one-half of the longest term of imprisonment provided for that offence or with fine or with both. Section 354-A of IPC deals with sexual harassment and punishment for sexual harassment.

The accused submitted an application under Section 439 of CrPC to get standard bail.  Section 439 states confers special powers on the Court of Sessions as well as the High Court where either court may direct to release a person on bail.

Judgement

The court held that the POCSO Act was passed to protect children from sexual assault, sexual harassment, and pornographic offences and to establish special tribunals for the trial of such crimes. A clear message that anyone who violates the POCSO Act will be held accountable for their actions must be sent to society at large by imposing a penalty that is proportionate to the act of sexual assault or sexual harassment.

The Court stated that, “Cases of sexual assault or sexual harassment on the children are instances of perverse lust for sex where even innocent children are not spared in pursuit of such debased sexual pleasure. It is to be noted that children are precious human resources of our country; they are the country’s future. The hope of tomorrow rests on them. But unfortunately, in our country, a girl child is in a very vulnerable position. There are different modes of her exploitation, including sexual assault and/or sexual abuse. The exploitation of children in such a manner is a crime against humanity and society. Therefore, the children and more particularly the girl child deserve full protection and need greater care and protection whether in the urban or rural areas. Children need special care and protection and, in such cases, responsibility on the shoulders of the Courts is more onerous to provide proper legal protection to these children. A minor who is subjected to sexual abuse needs to be protected even more than a major victim because a major victim being an adult may still be able to withstand the social rationalization and mental harassment meted out by society, but a minor victim will find it difficult to do so. Most crimes against minor victims are not even reported very often, the perpetrator of the crime is a member of the family of the victim or a close friend. Therefore, the child needs extra protection.”

 The Court further observed that the victim was a 12-year-old child, and the offender was a teacher.. Protective behaviour from the teacher is expected. Instead of providing the child with fatherly love, affection, and protection from the vices of society, the accused made her a victim of lust. The victim will be affected psychologically and emotionally for the rest of her life by the accused’s awful actions. When a trustworthy individual commits crimes like this, children begin to view life more pessimistically. In this instance, social values have been compromised and trust has been betrayed. As a result, the accused is not deserving of mercy or compassion.

The Court further opined that practice of amicable settlement is unwarranted when such a serious and heinous crime is committed. It also amounts to tampering with the witness or evidence by the accused. Such a heinous crime affects the entire society, and the relation between ‘Guru’ and ‘Disciples’ should be viewed very strictly. 

Hence, the Court held that the prima facie case has been clearly established against the accused and rejected the bail application. 

JUDGEMENT REVIEWED BY AMIT ARAVIND

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“PRIME LEGAL is a full-service law firm that has won a National Award and has more than 20 years of experience in an array of sectors and practice areas. Prime legal fall into a category of best law firm, best lawyer, best family lawyer, best divorce lawyer, best divorce law firm, best criminal lawyer, best criminal law firm, best consumer lawyer, best civil lawyer.”

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