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Delhi High Court’s Jurisdiction Limited to Cases of Perversity in Industrial Tribunal Decisions

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Case title: Director General, Delhi Doordharshan Kendra v. Mohd. Shahbaz Khan, Tej Pal Manohar Paswan, Danvir Hans Raj.

Case no: LPA 242/2024, LPA 243/2024, LPA 244/2024, LPA 245/2024, LPA 246/2024,

Dated on: 22nd March, 2024

Quorum: Hon’ble Justice Rekha Palli and Hon’ble DR. Justice Sudhir Kumar Jain.

Facts of the case:

Appeals filed under Clause X of the Letters Patent LPA 242/2024 & other connected appeals to assail five similar orders dated 12.12.2023 passed by the learned Single Judge in a batch of Writ Petitions. Vide the impugned order dated 12.12.2023, the learned Single Judge has rejected the Appellant’s challenge to the award dated 15.10.2007 passed by the learned Industrial Tribunal (Tribunal), wherein the learned tribunal after holding that the termination of the respondents’ service by the Appellant was illegal, has directed the Appellant to reinstate them with 25% back wage.

Contentions of the appellant:

The learned Tribunal as also the learned Single Judge have failed to appreciate that the respondents were never employed with the Appellant but had in fact, been engaged by one M/S Navnidh Carriers who was engaged by the appellant on 31.07.1998, to provide manpower services as and when required. The learned Tribunal has not examined as to whether the Respondents had completed 240 days of continuous service in the year immediately preceding their termination, which aspect the learned Single Judge also over looked. Instead of placing the onus to prove the existence of an employer-employee relationship on the respondents, the learned Single Judge has wrongly shifted the said onus on the Appellant.

Contentions of the respondent:

The learned Tribunal has, as a matter of fact, found that the respondents had been working with the Appellant/Organization much prior to 31.07.1998, i.e; the date when the appellant had, with malafide intention, engaged M/S Navnidh Carriers for providing manpower services and therefore, it was evident that the respondents had initially been engaged by the appellant itself. The experience certificate dated 13.07.1999 issued by the appellant to one of the respondents wherein it has been categorically stated that he had been working with the appellant as a casual labourer since July 1997 and was an honest and hardworking worker. The appellant admittedly does not have any licence to engage workmen through a contractor as is mandated under the Contract Labour (Regulation and Abolition) Act, 1970 (the CLRA Act), it is evident that the respondents were to be treated as employees of the appellant itself. He, therefore, prays that the appeals be dismissed.

Legal provisions:

Contract Labour (Regulation and Abolition) Act, 1970 (the CLRA Act)- regulated the employment of contract labor in certain establishments and provides for its abolition in certain circumstances. Article 226 of the Constitution- gives the High court the power to issue orders, directions and writs to any person or the authority including the Govt for the enforcement of Fundamental rights.

Issue:

Whether Respondents were engaged by the Appellant and were illegally terminated? When can Writ Court interfere with the factual findings of fact of Labour/Industrial Tribunal?

Courts judgement and analysis:

The learned Tribunal as also the learned Single Judge, after taking into account the gate passes as also experience letter dated 13.07.1999 issued by the appellant to one of the respondents have come to a conclusion that the respondents were employed with the appellant/ organisation and had been illegally terminated. Both the learned Single Judge as also the learned Tribunal found upon appreciation of evidence that the purported contract by the appellant in favor of M/s Navnidh Carriers was sham and an attempt to conceal the engagement of the respondents with the appellant. The learned counsel for the appellant has not been able to give any explanation whatsoever for the issuance of the said experience certificate if the respondent namely Mohd. Shahbaz Khan was not their employee. The Appellant did not have any license, as mandated under the CLRA Act, 1970, to engage workmen through a contractor, hence it is evident that they were directly engaged by the appellant. In the light of these categoric factual findings by the learned Tribunal, which cannot, in any manner, said to be perverse or contrary to the evidence lead before the learned Tribunal, we are of the view that it was neither open for the learned Single Judge to interfere with these findings in exercise of its writ jurisdiction nor is it open for this Court to examine these questions of fact. In Dinesh Kumar v. Central Public Works Department, 2023 SCC On-Line Del 6518, wherein the co-ordinate Bench after examining various decisions of the Apex Court held that writ Court can interfere with the factual findings of fact recorded in the industrial award only if the same are perverse or are entirely unsupported by evidence. The jurisdiction of the High Court in such matters is quite limited. In Management of Madurantakam Coop. Sugar Mills Limited v. S. Viswanathan, (2005) 3 SCC 193, the Apex Court, held that the Labour Courts/Industrial Tribunals as the case be is the final court of facts, unless the same is perverse or not based on legal evidence, which is when the High Courts can go into the question of fact decided by the Labour Court or the Tribunal.  The Hon’ble Supreme Court in State of Haryana v. Devi Dutt, (2006) 13 SCC 32, has held that the writ Court can interfere with the factual findings of fact only if in case the Award is perverse; the Labour Court has applied wrong legal principles; the Labour Court has posed wrong questions; the Labour Court has not taken into consideration all the relevant facts; or the Labour Court has arrived at findings based upon irrelevant facts or on extraneous considerations. In the present case, the Labour Court has arrived at a conclusion based upon the evidence adduced by the parties and the learned Single Judge has affirmed the findings of fact again after minutely scanning the entire evidence, and therefore, the question of interference by this Court does not arise. In the light of the aforesaid, we find absolutely no reason to interfere with the concurrent findings of fact arrived at by the learned Tribunal and the learned Single Judge to hold that the respondents were engaged by the appellant and were illegally terminated. The appeals being meritless are, along with all pending applications, dismissed.

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Accused presumed to be innocent unless proved to be guilty- burden lies on the prosecution: SC

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Case title: C. Bala Malleshwar Rao, G Chandrashekhar, Syed Anwar Hussain, G. Damodar, K.L. Rama
Rao, V. Satyanarayana.
Case No: Criminal appeal No.729 of 2007, Criminal Appeal No.737 OF 2007, Criminal Appeal No.793 OF
2007, Criminal Appeal No.828 OF 2007, Criminal Appeal No.850 OF 2007.
Dated on: 16th April,2024.
Quorum: Hon’ble Sri Justice K. Surender.
Facts of the case:
The Registrar of Osmania University addressed a letter dated 03.12.1993 in the form of complaint to the Director General, Anti -Corruption Bureau alleging that: there was large scale embezzlement in payment of over time allowances contrary to the financial rules and procedure; Printing material purchased by Director-A1 along with other employees resulted in misappropriation of funds; Purchase of press equipment by A1 along with other employees deliberately without usage to gain illegally. Accordingly, the case was registered on 01.01.1994 and investigation was taken up. During 1990-91 to 1992-93, A1 issued self-cheques amounting to Rs.28,99,343.43ps. The said cheques were encashed by A2 and A4. The said amount meant for overtime allowances to the employees were disbursed to an extent of Rs.11,13,339.59 ps and misappropriated the balance of Rs.17,86,003.84 ps punishable under Section 13(1) (c ) and 13(2) of Prevention of Corruption Act. A1, for the very same orders issued self-cheques and third-party cheques to an extent of Rs.54,71,964.18ps to A2, A3, A7 to A11, who have encashed the cheques. It was shown that printing material worth Rs.36,55,560/- was purchased. However, the remaining amount of Rs.18,16,404-18 ps was not accounted, punishable under Section 13(1)(c)and Section 34 of IPC. A1 has issued self-cheques amounting to Rs.5,08,502.50ps and A2, A5 and A6 encashed the said cheques. An amount of Rs.25,470/- was given for private orders and the remaining amount of Rs.4,83,032.50 ps was misappropriated, punishable under Section 13(1)(c) of Section 34 of IPC. A1, A3 to A5 and A7 to A11 have entered into criminal conspiracy while discharging their duties and misappropriated the amounts to an extent of Rs,17,86,003.84 PS, Rs.18,16,404.18 PS, Rs.1,18,10,000.26ps and Rs.4,83,032.50 PS for purchase of printing material, punishable under Section 409 A1, A3 to A5 and A7 to A11 have falsified accounts willfully with an intention to defraud the institution and caused wrongful loss to the printing press, Osmania University, Hyderabad to an extent of Rs,17,86,003.84 PS, Rs.18,16,404.18 PS, Rs.1,18,10,000.26ps and Rs.4,83,032.50 PS, punishable under Section 477-A 120-B The ACB, during the course of investigation, having collected documents and examining witnesses filed charge sheet for the offences under Sections 13(1)(c ) r/w 13(2) Section 13(1)(d)(1) & (ii) r/w 13 (2) of the Prevention of Corruption Act, under Section 409 r/w 120-B IPC and Section 477A r/w Section 120-B IPC. Learned Special Judge convicted A3 to A5 and A7 to A11 and sentenced to undergo rigorous imprisonment for a period of one year each under Sections 13(1) (c), 13(1)(d) (1) & (ii) r/w 13(2) of the Prevention of Corruption Act, 1988 r/w 34 IPC, Section 409 r/w 120-B IPC, Section 277-A r/w 120-B IPC. Aggrieved by the conviction recorded by the Principal Special Judge, City Civil Court at Hyderabad vide judgment in C.C.No.17 of 2000 dated 15.06.2007 for the offences punishable under Sections 13(1)(c ) r/w 13(2) Section 13(1)(d)(i) & (ii) r/w 13 (2) of the Prevention of Corruption Act, under Section 409 r/w 120-B IPC and Section 477A r/w Section 120-B IPC, these Criminal Appeals are filed.
Contentions of the appellant:
The learned Special Judge has relied heavily on the enquiry conducted by P.W.2 against A1, A3 and A4 and the enquiry report Exs.P15, 16 and 17 respectively. The findings in the enquiry report were made without examining the witnesses. The documents Exs.P1 to P14, P22 to P247 which are overtime bills, cash books, bank statements, cheques and registers were all marked through P.W.1, who was Assistant Registrar, Osmania University. Merely marking the said documents cannot form basis for the Court to rely upon the gist of all the documents. The prosecution ought to have exhibited before the Court as to how the misappropriation was done by the appellants herein. Enquiry was conducted only against A1 to A4 and there is no enquiry against any of the other accused. Merely on the basis of conclusions drawn in the enquiry, all the accused were convicted. It was A1 who had the cheque power, drawing and disbursing power and responsible for the accounts of the Osmania University press. It was A1 who had informed and acknowledged that the amounts received were in fact paid to the persons who had executed job work which are the outside agencies. Learned counsel for A5 and A7 submits that enquiry was not conducted against A5 and A7. That itself reflects that even the department did not have any doubt about the alleged involvement of A5 and A7. It was specifically stated by investigating officer that A3 to A11 were not concerned with purchase of printing material. Learned counsel appearing for A4 argued that A4 was not entrusted with any amounts and whatever amounts were asked to be disbursed by A1, was disbursed. The allegation that A4 was maintaining overtime allowance register and other record were not proved by the prosecution. The Learned Special Judge had relied on the alleged confession of A4 before the enquiry officer/P.W.2 that he had withdrawn amount and was also maintaining the records pertaining to overtime allowances, which formed basis for conviction, which is incorrect.
Contentions of the respondent:
It is not in dispute that amounts were entrusted to A1 as the Director for the purpose of disbursing overtime allowances and also purchase of stationery and other material. The amounts that were withdrawn by A1, who had the power to disburse amounts and make payments for purchase of stationery, has to account for the same. In the absence of giving details of payments made after withdrawing the amounts, would clearly reflect that A1 along with other accused have misappropriated the amounts that were entrusted to them. The entire documents that were collected during the course of investigation and examined by PWs.1
to 4 during enquiry that was conducted against A1 to A4 can be looked into by the criminal Court for the purpose of adjudicating upon the criminal acts committed by these public servants. In the said circumstances, learned Special Judge was right in convicting the accused.
Legal provisions:
Sections 13(1) (c) of the Prevention of Corruption Act: states that a public servant is guilty of an offence if he dishonestly converts property for his public use. Section 13(2) of the Prevention of Corruption Act: any public servant who commits a misconduct will be sent for a rigorous punishment for a year. Section 13(1)(d) (1) & (ii) of the Prevention of Corruption Act: obtaining pecuniary advantage by corrupt means. Section 409 IPC: criminal breach by a servant or the banker. Section 120-B IPC: being a part of a criminal offence with death penalty or imprisonment. Section 477A IPC: falsification of accounts. 
Issue:
Whether the statements that were prepared on the basis of the documents available in the department can form basis to infer misappropriation and falsification of accounts, without there being any independent witnesses examined to support the allegation of drawing or
disbursing amounts in the names of individuals and Firms, or that such persons have not received amounts; Whether such statements prepared on the basis of enormous documents that were examined by witnesses can form basis to conclude guilt in the absence of proving each and every document before the Court below; Whether the learned Special Judge was right in invoking Section 106 of Indian Evidence Act on the basis of statements prepared by P.Ws.1 to 7 to convict the accused on the ground that the accused failed to discharge burden shifted on to them.
Courts judgement and analysis:
Appellants have totally denied the allegations leveled against them regarding any kind of misappropriation. Not a single witness is examined by the investigating agency to show that amounts were drawn, or cheques issued in favor of an individual or a firm and such amounts were not paid. Learned Special Judge believed the version of the prosecution witnesses regarding statements that were prepared and concluded that under Section 106 of Indian Evidence Act, the burden is on the accused to explain regarding the amounts that were withdrawn as such withdrawals and usage was to the exclusive knowledge of the accused. It is not in dispute and admitted that. The entire basis of P.W.2 finding A1, A3 and A4 guilty of the charges of misappropriation are the statements that were prepared under Exs.P1 and P35. The Court and the Investigating 30 Officer/P. W 8 heavily relied on Exs.P15 to P19 enquiry reports of P.W.2. The accused denied execution of any of the documents that were placed by the prosecution to show entrustment of the funds to them by A1.
Departmental enquiry conducted by any enquiry officer, who is appointed will conduct enquiry on the basis of preponderance of probabilities and inferences or conclusions will be drawn on the basis of the evidence that is placed before him and/or collected. However, in criminal cases, the principle of proof is beyond reasonable doubt, contrary to the procedure followed in the departmental enquiry. The Hon’ble Supreme Court in the case of Balvir Singh v. State of Uttarakhand held that when the prosecution has offered evidence which can be believed by the Court and convincing regarding the accused guilt beyond reasonable doubt, then the burden shifts on to the accused to present evidence regarding the facts peculiarly which are within the knowledge of the accused. The approach of the learned Special Judge in shifting the burden on to the accused to explain the opinion and inferences drawn during departmental enquiry is incorrect and it does not fall within the purview of Section 106 of Indian Evidence Act to draw adverse inference against accused and convict the accused. In view of above discussion, in the absence of any proof and direct evidence against the accused apart from the inferences drawn by P.Ws.1 to 3 and P.W.38, on the basis of the record found in the office, there cannot be any conviction for the offences alleged. The factum of entrustment to the appellants herein are assumptions on the basis of the withdrawals from Banks and payments made by A1 through cheques. Admittedly, self cheques were drawn and signed by A1. Not a single bank
witness is examined to show that at any point of time, self-cheques or the cheques of others were encased in the bank by any of these appellants.
The prosecution ought to have produced witnesses from the Bank to prove that cheques signed by A1 were withdrawn by the appellants herein. In the absence of any such proof, the question of these appellants abetting A1 in committing alleged misappropriation of the funds entrusted to A1 would not arise. The Hon’ble Supreme Court in the case of R. Sai Bharathi v. J. Jayalalitha held that entrustment has to be proved for establishing an offence of criminal misappropriation. The case is one of circumstantial evidence. The burden is on the prosecution to prove the circumstances of the case by admissible and legal evidence. All such circumstances cumulatively should form a complete chain pointing unerringly towards the guilt of the accused. The Hon’ble Supreme Court in the case of State of Uttar Pradesh v.  Suhasi, Haricharan v. State of Rajasthan held that where if there are missing links in the chain of evidence adduced by the prosecution, benefit of doubt should go to the accused.
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Interim relief cannot be seeked for an International Arbitration Case: SC

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Case title: Ilwohnibrand Co. Ltd. V. Mahakali Food Pvt.Ltd and Ors.

Case no: Arbitration case No.of 2023

Dated on: 3rd April, 2024

Quorum: Hon’ble Justice Sushrut Arvind Dharmadikhari  and Hon’ble Shri Justice Devnarayan Mishra

Facts of the Case:

The petitioner had business relationship with the respondent no.1 to 3. A sale contract was entered into between the petitioner and the respondents on 18.09.2019 for supply of 2014 MT ‘ Full-Fat Soya Grits’. However, respondents committed a breach of contract wherein there was neither the quantity supplied according to the contract nor the quality. Even for the sub-standard material supplied by the respondent, the authorities conducted raid and sealed the premises of the petitioner. Petitioner notified the respondent about the breach. Respondent though admitted the supply of substandard quality under the contract and promised to compensate the petitioner but no such compensation was ever paid. Another contract was entered into between the petitioner and the respondent wherein respondent insisted for enhanced rate and issued proforma invoice and payment was duly made by the petitioner. However, respondent again committed breach of contract by not supplying the material as per the timeline mandated in the contract and in fact only supplied goods worth $1,42,500 despite receiving advance payment of $375,000 and thereafter respondent did not make any supply and stopped answering the calls. Again, with malicious intent, respondents communicated that it shall pay the balance amount to the petitioner, but no heed has been paid. Efforts to resolve the dispute failed since the respondent did not want to and stopped making communication with the petitioner. Since, the contract between parties provides for resolution of dispute by way of arbitration to be conducted in India, the petitioner filed petition under the Section 9 (1)(i) of the Conciliation Act of 1996 before the Commercial Court which was dismissed for want of jurisdiction with liberty to the petitioner to approach appropriate forum. Hence, the present petition had been filed. Shri Aniket Naik, appointed as Amicus Curiae submitted that petitioner has already approached the Commercial Court under Section 9 of the Act of 1996 seeking interim protection. However, learned Commercial Court dismissed the application filed by the petitioner holding the same as not maintainable for want of jurisdiction as the matter pertains to international commercial arbitration and not domestic arbitration.

Contentions of the Appellant:

Learned counsel for the petitioner submitted that evidence of breach committed by the respondent are available and, therefore, an order of interim protection securing the amount involved in the arbitration is required to be passed since despite sending several reminders, respondent kept making false promises, but neither exported the balance shipment nor compensate for the delivery of sub-standard quality of products thereby putting the petitioner to suffer irreparable loss. In terms of section 2(e) and (f) of the act of 1996, the petition can by heard by this court being the jurisdictional court and the present arbitration being an international commercial arbitration. In an identical situation the apex court , in S.D. Containers V. Mold Tek Packaging Ltd., had remanded the case to the court to be tried under its original civil jurisdiction where the court held that while invoking its powers under clause (9) of the letter patent read with rule 1(8) of chapter IV of the rules of the exercise its extra ordinary civil jurisdiction. Hence, the petition which is made under Section9 of the Act 1996 is exclusively triable by this court, therefore, the present petition to be deleted from the category of  the arbitration case and be listed under  the relevant category before appropriate single bench.

Contentions of the Amicus Curiae:

Petitioner has already approached the commercial court under Section 9 of the Act of 1996 seeking interim protection. But the court dismissed saying that the same is not maintainable as it pertains to international arbitration. Thereafter,

Petitioner has preferred the present application under section 9 (2)(1)(f) of the act of 1996 which is not maintainable in the view the fact that as per the Chapter 2 Rule 3 of Rules, 2008 an application under section 11 of the act of 1996 shall be registered as arbitration case which deals with the appointment of the arbitrator.  Court to sub-rule 8 Rule 10 Chapter 2, of the High Court rules 2008 which says that these cases can be considered as a  Miscellaneous Civil Case and also to be registered as a Miscellaneous Civil Case if they do not fall under the ambit of the first seven clauses which is not interlocutory to any proceedings. It is submitted that petitioner can very well file Miscellaneous Civil Case in terms of sub-rule 8 of Rule 10 of Chapter 2 of Rules of 2008, which can be entertained and appropriate orders can be passed.

Legal Provisions:

Section 9 of the Arbitration and Conciliation Act-  Seeking interim reliefs before, or during the arbitral proceedings, or at any time after the passing of the award but before it is enforced.

Section 11 of the Arbitration and Conciliation Act- Appointment of the arbitrator.

Sub-rule 8 of Rule 10 of Chapter 2 of the High Court of Madhya Pradesh rules of 2008- Filing miscellaneous civil cases.

Issues:

Whether the petitioner is entitled to seek interim measure of protection and securing the amount involved in the arbitration   under section 9 of Arbitration act 1996 and section 10 of the commercial courts act,2015?

Courts Judgement and Analysis:-

The present petition itself is not maintainable on twin grounds:

(i) Firstly , the petitioner resorting to the liberty granted by the Commercial Court has filed present petition under Section 9 r/W Section 2(1)(f) of the Act of 1996 seeking interim protection before this Court which cannot be entertained by this Court.

(ii) Secondly, as rightly pointed out by Amicus Curiae, in terms of Chapter 2 Rule 3 of the Rules of 2008, an application Section 11 of the Act of 1996 shall be registered as an arbitration case which deals with appointment of Arbitrator which is not the case herein.

In the considered opinion of this Court, looking to the nature of case and the relief as sought for by the petitioner, the same does not fall within the category of an Arbitration Case. Rather the same ought to have been filed as a Miscellaneous Civil case falling within the ambit and scope of any other application of civil nature, not falling under any of the specified categories in terms of sub-rule 8 of Rule 10 of Chapter 2 of Rules of 2008. In view of the above   discussion, its hereby rejected. Accordingly, the present petition is hereby dismissed with liberty to the petitioner to file miscellaneous civil case in terms of sub-rule 8 of Rules of 2008.

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“Women in Prison: Understanding Female Incarceration”

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Introduction

Women who have committed crimes and are housed in correctional facilities are known as female inmates. The experiences of female and male inmates may differ due to a variety of circumstances, including gender-specific requirements, vulnerabilities, and obstacles encountered within the criminal justice system. To successfully meet the needs of women inmates and maintain their well-being throughout their incarceration, it is imperative to take into account the unique conditions of this population.625,000 women and children were jailed in correctional facilities worldwide as of 2013, and the number of women incarcerated was rising on all continents.The primary table with a column for the historical and present percentage of female inmates is part of the list of nations ranked by incarceration rate. Men make up the great bulk of those behind bars worldwide. Around the world, criminal justice systems have handled incarcerated women differently from the beginning of the process until the end, including during sentencing and the application of punitive measures. This discrepancy is mostly caused by real demographic differences in the seriousness of crimes committed by the prison populations of men and women, as well as the enduring notion in society at large that female offenders are more rehabilitee than their male counterparts. Despite making up a smaller percentage of all prisoners worldwide, the number of women behind bars is increasing at a rate double that of men. The most majority are detained in China, Russia, and the United States. of persons behind bars worldwide, including women. The increasing number of women incarcerated worldwide can be partially attributed to changes in sentence and parole regulations for female offenders. The global trend of gender-blind sentencing in criminal justice systems has led to a marked rise in the imprisonment rate of women. Women’s incarceration rates are further increased by high rates of re-entry and re-offending, which are also caused by the concurrent abolition of parole and harshening of punishments for parole violations in many parts of the world.

Crimes by women

Almost 3 lakh women are detained every year for offenses against the Special and Local Laws (SLL) and the Indian Penal Code (IPC). Many of these women are detained for offenses including rioting, abuse by husband’s family members, and Prohibition Act violations. Combining statistics for both convicted and pending cases reveals that 37% of women are serving jail sentences for murder, with 15% of them being incarcerated for dowry deaths.

According to the State List in the Seventh Schedule of the Indian Constitution, State Governments are in charge of all matters pertaining to prisons, reformatories, borstals, and other similar institutions, as well as the people housed there. They also handle agreements with other States regarding the sharing of prisons and other facilities. The following laws provide the guidelines for imprisonment:

• Indian Penal Code, 1860

• Prison Act, 1894

• Prisoner’s Act, 1900

• Identification of Prisoner’s Act, 1920

• Exchange of Prisoner’s Act, 1948

• Transfer of Prisoner’s Act, 1950

• Prisoner (Attendance in Court) Act, 1955

• Probation of Offenders Act, 1958

• Code of Criminal Procedure, 1973

• Repatriation of Prisoner’s Act, 2003

• Model Prison Manual, 2003

• Model Prison Manual, 2016

In 2007, a National Policy on Prison Reforms and Correctional Administration was formulated, outlining several guidelines pertinent to female inmates, such as safeguarding their human rights and preventing the prolongation of pending cases. “Women prisoners shall be protected against all exploitation,” the statement adds. Work and treatment plans must be developed for them taking into account their unique requirements.

National Model Prison Manual, 2016

The 2016 Model Prison Manual has been updated with a focus on computerization in prisons, special provisions for women inmates, after-care services, prison inspections, the rights of death row inmates, repatriation of foreign prisoners, and a greater emphasis on correctional staff.

Special procedure for arrest of women

The Criminal Procedure Code (CrPC) has specific provisions pertaining to the arrest of women. Specifically, it is forbidden to arrest women after sunset or before sunrise, unless the Judicial Magistrate First Class has granted permission beforehand. Additionally, only female officers must conduct searches on female arrestees, taking into account their dignity. Ideally, the arresting police officer should not be wearing their uniform when making the arrest of the woman in order to lessen the stigma attached to being incarcerated. Additionally, arrangements for the woman’s minor children’s custody at the time of her arrest should be arranged. She needs to put her requests in writing, including the name and contact information of the person she wants her minor children to stay with while she is incarcerated. Be closely adhered to. If the child cannot accompany the mother to prison and no family or friends are available to care for him or her, the youngster should be placed in a child care institution.

Addressing violence

Body searches need to be carried out in accordance with established protocols. The least invasive method should be used when searching female inmates if it is deemed suitable under the circumstances. The type of search that will take place and the rationale behind it should be made evident to the prisoner. To prevent total nudity at a given time, strip searches should be carried out in two separate processes, with the top and lower bodies being searched sequentially. Searches of the body cavities should be avoided wherever possible. CCTV cameras ought to be utilized with consideration for the privacy and dignity of female detainees. For each prisoner, a documented record detailing the nature and frequency of searches should be maintained and be open for inspection by representatives. Human rights, sexual misconduct, and gender issues must be made clear to all employees that handle, hold, or question prisoners.

Living arrangements

Three changes of clothes, two towels, and three sets of their usual undergarments should be provided to female inmates serving sentences of no more than six months in jail. For women serving sentences longer than six months, this amount will rise to five sets of clothes, three towels, and five sets of the usual undergarments. Prisoners ought to have the freedom to select their preferred style of dress from a selection of possibilities. These should, at the at least, consist of light-colored—not necessarily white—sarees with blouses and petticoats, kurtas with salwar and dupattas, and shirts with trouser/long skirts.

For a year following birth, women in the post-natal phase must live apart from other people in order to uphold a specific level of hygiene and shield the unborn child from infections and other illnesses. Furthermore, In addition, it is necessary to keep sick female inmates apart for their own health.

Improvement of health and nutrition

Women must undergo thorough health screenings upon admission, taking into account their rights to confidentiality, privacy, and dignity, as well as their ability to decline screening. This will assist in determining any health concerns, provide appropriate care, and creating a customized food and health plan for the prisoner. Testing needs to be done routinely after that. Comprehensive medical examinations should be performed annually, on a monthly basis, and inmates should always have access to a female medical officer for examinations, tests, treatments, and other needs. Women should have regular papanicolaou testing and screening for gynecological and breast cancers. Should the female medical officer not be available, the inmate will be moved to the closest hospital with a female physician on staff. Rather than being held in prison, women with mental health concerns should be moved to appropriate institutions. Female psychologists and counselors should be available to prisoners at least once a week, or more often if necessary. Particularly, first-time offenders need to receive counseling upon admission in order to reduce recidivism. Women incarcerated should be provided with free, maximum-quantity, sterilized sanitary pads based on their needs. It is necessary to provide information about HIV, STD, and other gender-specific disease prevention strategies. To efficiently handle crises and minor concerns, jail staff members are required to complete mandatory training in gender-specific needs of women, first aid, and basic medicine.

Children of women prisoners

If the woman has a kid, consideration should be given to her caregiving responsibilities when choosing the jail, and the woman should be given the option to choose the prison as much as possible. It is imperative that children incarcerated are not made to feel like criminals. It is the responsibility of the administration to make sure that the facilities are suitable for the children in their care. To make sure that kids incarcerated have access to the necessities of education, daycare, entertainment, and a healthy lifestyle, NGOs, schools, and pediatricians can get involved. Prison administration will make every effort to establish an environment that is as similar to home as feasible for youngsters. As close as feasible to that of an incarcerated child. For example, spacious rooms with enough natural light, minimal security measures, an outdoor play area, the chance to interact with peers outside of prison if it isn’t possible within, etc. Regular inspections of these facilities are required by the Board of Visitors. The greatest amount of time permitted for female inmates to spend with their children while they are incarcerated must be given to these women. In order to track their physical development and state of both physical and mental health, children should be fed a particular diet and see a Lady Medical Officer on a monthly basis. Depending on their needs, they ought to be able to contact a Lady Medical Officer. Whether they are visiting or incarcerated, children should never handled like a prisoner. When searching youngsters, prison staff members must act with dignity, compassion, and respect. Children should never be subjected to body cavity searches.

Conclusion

In order to assist women inmates in making a successful transition back into society after serving their sentences, rehabilitation and reintegration programs must be the primary focus. Offering mental health care, counseling, vocational training, and educational opportunities can help lower the recidivism rates of incarcerated women. Furthermore, fostering a secure and encouraging environment in correctional facilities is essential to inmates’ wellbeing and a smooth transition back into society. Mental health issues among inmates are a global phenomena that affects nearly every country in the world. “Compared to women in the general population, women incarcerated have a five-fold increased risk of mental health disorders”. Psychological illnesses, including poor mental health, depression, stress, aggression, and psychological illness, are common among women incarcerated Among female inmates, psychotic disease, bipolar disorder, personality problems, and substance dependence are also quite prevalent .Women who are incarcerated face more particular health issues than men do, as well as restricted access to prison health services . According to a national survey carried out in the United Kingdom, there were significant challenges in providing care for inmates with mental diseases and comparable degrees of impairment among those with psychiatric morbidity. Inmates frequently enquire. Prisoners require instruction and preparation. Teaching them to read and write is just one aspect of this; another is developing and imparting skills that they will need when they are released from prison . This is consistent with research , which indicates that women incarcerated should get appropriate training to prepare them for whatever challenges they may encounter upon release. The greatest need identified by multiple lists of needs for female convicts is skill training (coping, interpersonal, regulatory influence, and anger management), in addition to drug misuse therapy. This has to do with past drug misuse, worries, and terrible situations that inmates have gone through. Recidivism rates were successfully decreased, and prisoner employment chances increased as a result of the training program .

References

1.https://vikaspedia.in/social-welfare/women-and-child-development/women-development-1/women-in-prisons

2.https://www.researchgate.net/publication/377305628_A_Socio-Legal_Study_on_the_Condition_of_Women_Prisoners_and_Their_Children_in_India#:~:text=Several%20empirical%20studies%20have%20been,existing%20laws%20in%20this%20regard.&text=Content%20may%20be%20subject%20to%20copyright.

3.https://prisonreformtrust.org.uk/project/women-the-criminal-justice-system/

4.https://womenalliance.org/the-situation-of-women-in-prison/

5.https://www.aclu.org/news/womens-rights/heres-how-prison-and-jail-systems-brutalize-women

6.https://academic.oup.com/book/34697/chapter-abstract/296170490?redirectedFrom=fulltext

7.https://www.ncbi.nlm.nih.gov/pmc/articles/PMC10113576/

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Judgement Analysis Written by – K.Immey Grace

 

 

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Words said in a fit of rage do not amount to abetment of suicide: Supreme Court.

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CASE TITLE: KUMAR @ SHIVA KUMAR V. STATE OF KARNATAKA

CASE NO: SLP CRIMINAL APPEAL NO. 1427 OF 2011

DECIDED ON: 1.03.2024

QUORUM: HON’BLE JUSTICE UJJAL BHUYAN

FACTS OF THE CASE

The appellant has filed a special leave petition against the judgment passed by the trial court, and the high court dismissed the criminal revision petition. The trial court had convicted the appellant under section 306 of the IPC, sentencing him to undergo rigorous imprisonment for three years. It imposed a fine of Rs. 2000. If the appellant fails to pay the fine, he shall undergo strict punishment for four months.

The appellant was a tenant living in the deceased’s house. However, on the day of the incident, he was residing elsewhere since the term of his tenant agreement had ended. On 5.7.2000, when the deceased was returning home after dropping her sister’s kids at school, she saw the appellant waiting for her near Canara Bank. The appellant eve teased her, asking her to marry him. When the deceased did not respond, the appellant threatened to destroy her sister’s family, outraging their modesty and causing death. Upon arrival at the house, the deceased informed her sisters of the same and ingested poison. The neighbours saw the deceased lying on the floor in pain from the window and rushed to help. They opened the house door, and during this time, one of her sisters had also arrived with her husband. The deceased was taken to Nirmala Devi Hospital, after which she was relocated to Mission Hospital. She died on 06.07.2000 at 7:30 pm. Raju, the dead’s father, lodged an FIR on 07.07.2000 at 6:30 pm, alleging the appellant was liable for his daughter’s death. During the investigation, post-mortem was done, and the viscera of the deceased was sent for chemical analysis to the Forensic Science Laboratory, Bangalore. The doctor who did the examination stated that the death was caused by respiratory failure due to the consumption of a substance having Organophosphate. After the investigation, the police submitted the chargesheet, where the appellant was the accused.

The prosecution examined eleven witnesses and produced eleven documents as exhibits. The trial court gave its verdict after hearing both sides. The prosecution, beyond any reasonable doubt, had proved that the appellant was responsible for abetting the suicide of the deceased. Hence, the trial court convicted the appellant. As previously stated, the appellant had filed an appeal in the High Court of Karnataka, which upheld the judgement passed by the trial court and dismissed the petition. Following that, the aggrieved filed a special leave petition. The appellant was also granted bail contingent on the trial court’s satisfaction.

LEGAL PROVISIONS

Section 107 of the IPC deals with abetment of a thing.

Section 306 of the IPC deals with abetment of suicide.

Section 309 of the IPC deals with attempt to commit suicide.

Section 161 of the CRPC deals with examination of witnesses by police.

Section 313 of the CRPC deals with power to examine the accused.

Section 374 of the CRPC deals with appeals from convictions.

APPELLANTS CONTENTIONS

The counsel for the appellant contends that the evidence produced by the prosecution has not been interpreted and analysed correctly since it does not aid the appellant’s conviction under section 306 of the Indian Penal Court. There are inconsistencies in the witness statements and the evidences produced by the prosecution which cannot be overlooked. It can be inferred that no case of instigation, abetment or conspiracy can be drawn against the appellant in this scenario.

The statements made by Prosecution Witness (PW) No. 1, 2, 3, 4 and 12 are highly unreliable. The gaps in their testimony prove that they have improved and changed their story. The counsel for the appellant also revealed that the front of the right wrist of the deceased had a partially healed superficial linear incised injury. The prosecution has not explained the same. Since the injury was only partially recovered, it suggests it happened before the appellant teased her. This shows the appellant did not instigate her suicidal nature, and it might be something else. Although the deceased was hospitalised on 05.07.2000, the FIR was only lodged on 07.07.2000 at 6:30 pm. Additionally, the deceased had not told anyone about the appellant allegedly harassing her. Moreover, the appellant had gotten married two months before the incident took place so there was no reason for him to threaten, he was deceased making the accuracy of the prosecution’s case questionable.

 

RESPONDENT CONTENTIONS

The respondent asserts that the appellant has been convicted rightfully. The prosecution has proved his liability without any reasonable doubt before the trial court. Even the high court has upheld the impugned order. Hence, the question of credibility does not arise. There is no such rule in any legislation that a conviction cannot be made on the statements given by the family members. A simple reading of the witness statements of PW 1, 2 and 4 which is further substantiated by the testimony of PW 13 the doctor will point towards the appellant’s conviction. Hence, there is no substance in the case presented by the appellant.

 

COURT ANALYSIS AND JUDGEMENT

The Court has thoroughly analysed the evidence in this case, and the revelations have been astounding. It has only served to weaken the case of the prosecution. The accused had lived on the ground floor of his house for five years till the tenancy period was over. The deceased used to take the children of Raju’s other daughter to school daily. During that time, the accused used to ask for her hand in marriage and, upon her refusal, threatened to murder her family. Upon further examination of PW 1, 05.07.2000 was corrected to 06.07.2000. This very day, the accused had threatened to pour acid on the deceased and her sisters and murder them. Raju was informed about the accused’s marital status only after the death of his daughter. He was unaware of his whereabouts after he left his house.

Meena, PW 2, is the deceased’s sister residing with her. She stated that she saw her father in the hospital the next day at around 5:00 pm. Additionally, her father resided with some other woman outside marriage. Meena’s testimony contradicts the claims made by her father about living in the same house and reaching the hospital by 1 pm. The behaviour of Raju, whose daughter had been admitted to the hospital because of the consumption of poison, is very abnormal.

According to PW 4, Shantha, the second daughter of Raju, the deceased, had telephoned her and told them that she had consumed poison because of the incident that took place earlier that day. They rushed to her residence and took her to the hospital with the help of neighbours who were already there. This again contradicts PW 1’s statement that he had come home at 10 am and received the news that his daughter had already been taken to the hospital. PW 8 and 9, who were amongst the neighbours who saw the deceased in an unconscious state through the window while the telephone was ringing, turned out to be hostile witnesses. Only PW 8 and 9 were examined among all the neighbours present, and the reasons for not examining the others are unknown. Both the neighbours turned out to be hostile witnesses, stating that they didn’t know the reason behind the girl’s death. They also stated that the police hadn’t recorded their statements. It is also pertinent to note that if the telephone receiver hung, how could it keep ringing? In addition to the inconsistencies and loopholes that have already dented the prosecution case, the court stated that the credibility of the evidence produced cannot be trusted.

The court referred to the case M. Mohan v. State[1] to look into the meaning of suicide. In this case, it was observed that since “Sui” means self and “cide” means killing, a clear inference can be drawn that suicide means self-killing. In the case of Ramesh Kumar v. State of Chhattisgarh[2], it was held that instigation refers to an act of provocation and encouragement. When someone is provoked to perform an act, it is instigation. It is immaterial whether the words are spoken or unspoken. The accused’s act must indicate the resultant circumstance or situation. However, words said in a rage will not be considered as instigation.

Thus, the court, in this case, has laid down essentials that need to be proved to convict an accused for the offence of abetment of suicide. They are as follows:

  • the accused constantly irritates and annoys the deceased with spoken words, actions, deliberate omissions and deliberate silence to provoke and compel the deceased to take action swiftly
  • it is very important to establish mens rea of the accused in doing the aforementioned acts, which goes hand in hand with instigation.

Another point which is pertinent to note is that when a person dies by the consumption of poison, traces of poison must be discovered in such cases. PW 13 testified that there were injection marks on the front of both elbows of the deceased, including a partially healed wound on the wrist of the deceased. When he received the final chemical analysis, he opined that the death was caused by respiratory failure due to the consumption of the compound organophosphate. In the instant case, the doctors who treated the deceased were not called upon by the court for their testimony. It would have been crucial since they could have given information regarding the compound’s amount and way of consumption. No evidence pertaining to the bottle or the container from which the deceased had consumed poison or any syringe or needle used to inject was retrieved by the police.  

The court said that there can be a plethora of reasons as to why a person can commit suicide. It can be due to societal pressures or some mental illness. Hence, suicide is not always abetted. In the present case, the appellant cannot be convicted of abetment to suicide when suicide itself has not been proven. Considering the defaults in the prosecution case, the Hon’ble Court quashed the order given by the trial court and subsequently upheld by the High Court. The appellant’s conviction under section 306 has been set aside, hereby acquitting him of all the charges. The appellant is already out on bail, so the bail bonds shall no longer be in effect.

[1] 1 (2011) 3 SCC 626

[2] (2001) 9 SCC 618

Judgement Written by-Rashi Hora

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