SCC Online Weekly Rewind | Episode 37 with Devika Sharma
SCC Online Weekly Rewind ft. Episode 37 Devika Sharma, Senior Editorial Assistant is out now. The written episode along with the video episode can be watched and read below.
Supreme Court
- POCSO | “Touch”, “physical contact” can’t be restricted to “skin to skin contact”; “sexual intent” is the key. SC reverses Bombay HC’s “dangerous precedent”
In an important ruling on POCSO Act, a 3-judge bench of the Supreme Court has set aside the Bombay High Court judgment that had acquitted the accused under Section 8 of the POCSO Act, 2012 on the ground that no direct physical contact i.e. skin to skin with sexual intent without penetration would not amount to ‘sexual assault’.
Bombay High Court’s Nagpur Bench had expressed that the act of pressing of the breast of the child aged 12 years, in the absence of any specific detail as to whether the top was removed or whether he inserted his hand inside top and pressed her breast, would not fall in the definition of ‘sexual assault’. The said judgment had caused a huge uproar in January 2021, especially since the “shocking” opinion had come from a woman judge.
When the matter reached before the Supreme Court, Justice Bela Trivedi, writing for herself and Justice UU Lalit, held that “The most important ingredient for constituting the offence of sexual assault under Section 7 of the Act is the “sexual intent” and not the “skin to skin” contact with the child.”
Justice S. Ravindra Bhat, in his concurring opinion said that,
“The reasoning in the High Court’s judgment quite insensitively trivializes – indeed legitimizes – an entire range of unacceptable behaviour which undermines a child’s dignity and autonomy, through unwanted intrusions.”
- 5-year-old raped, killed, thrown into a stream: SC commutes death sentence to life imprisonment
In a case where a death row convict subjected a 5-year-old girl to rape, killed her by strangulation, and then disposed of her body, tied in a gunny bag, into a stream, the 3-judge bench of L. Nageswara Rao, Sanjiv Khanna* and BR Gavai, JJ has, finding hope for reformation and rehabilitation of the appellant, commuted his death sentence to that of life imprisonment.
The trial court had recorded that the death sentence was awarded on the ground that “the crime was committed in an extremely diabolical manner and that it was cruel, barbaric and revolting.” The High Court has noted that there are no mitigating circumstances at all.
While the Court noted that the appellant has committed an abhorrent crime, it said that, considering the mitigating circumstances like his young age, weak socioeconomic background, absence of any criminal antecedents, etc.; there was hope for reformation, rehabilitation, and thus the option of imprisonment for life was certainly not foreclosed.
- HC quashes proceedings based on “draft charge-sheet” yet to be placed before Magistrate! Clear abuse of S. 482 CrPC, holds SC
In a case where the Gujarat High Court had quashed criminal proceedings at the behest of persons who were not named in the FIR purely on the basis of their names appearing in the draft charge-sheet, the bench of SC has found it to be a “clear abuse” of High Court’s jurisdiction under Section 482 of the CrPC. The Court noticed that the High Court cannot place reliance on a “draft charge-sheet” which is yet to be placed before the Magistrate to quash the criminal proceedings under Section 482.
The Court said that the course followed by the High Court was unusual, if not extraordinary.
High Court Updates
Kerala High Court
- Swap Kidney Transplantation between on relatives: HC removes legal hurdles
In an important decision, the Kerala High Court has allowed swap kidney transplant between on relatives. Opening that law prescribing procedure for organ transplantation should satisfy the test of reasonableness, the Court remarked:
“When Section 9(3) of the Transplantation of Human Organs and Tissues Act, 1994 permits transplant of organs to persons being relative, with the prior approval of the authorisation committee, there is no logic or rationale to say that swap transaction will not be allowed when members of each pair are not near relatives, even if the authorisation committee approves search transaction.”
https://www.scconline.com/blog/post/2021/11/18/ker-hc-swap-kidney-transplantation-between-non-relatives-hc-removes-legal-hurdles/
- “Child molestation is a shame on society; but if the allegations are false, it is lethal to the life of the accused”; HC acquits father accused of raping his minor daughter
The Kerala HC acquitted the father accused of raping his own minor daughter. Considering the contention that the allegation was raised due to instigation by the stepmother, observing discrepancies in statements of victim and her stepmother and failure to prove age of the victim by the prosecution, the Court remarked that,
“Forensic and semantics apart, the child molestation is a shame on society. But If the allegations are false, it is lethal to the life of the accused, more so if the accused is a parent; even if he is eventually acquitted.
Delhi High Court
- Where can a petition under S. 125 CrPC be filed? HC discusses law on territorial jurisdiction
Discussing the law on territorial jurisdiction of courts to entertain a petition under Section 125 CrPC, the Delhi High Court said that ” while deciding the matter of maintenance, it is important for the court to bear in mind that technicalities such as jurisdiction should not impede the object that is sought to be achieved by a provision such as Section 125 CrPC which is essentially social welfare legislation.” On facts, the Court held that parents of the wife head to houses, one in Faridabad and mother in Vasant Kunj, Delhi, the territorial jurisdiction can be conferred in both faridabad as well as delhi.
https://www.scconline.com/blog/post/2021/11/17/territorial-jurisdiction-2/
- Can wife claim maintenance under S. 125 CrPC where she as well as husband had spouses at the time of alleged marriage? Del HC decidesIn another case, the Delhi HC reversed the order of the family Court which had granted maintenance to the wife under Section 125 CrPC. The Court noted that the petitioner husband and claimant wife, both were already married two other individuals when there a legend marriage took place. It was held that second wife whose marriage is void on account of survival of the first marriage would not be a legally wedded wife, and therefore would not be entitled to maintenance under this provision.
Jammu and Kashmir and Ladakh High Court
- J&K and Ladakh HC holds higher qualification than the maximum qualification prescribed is not suitable qualification
https://www.scconline.com/blog/post/2021/11/18/neither-irrational-unreasonable-nor-arbitrary/
Allahabad High Court
- If arbitrator becomes functus officio, can provisions under Ss. 14 and 15 of A&C Act to appoint substitute arbitrator be invoked?
Disposing of an application seeking the appointment of an independent arbitrator under Section 11 of the Arbitration and Conciliation Act, 1996, the Allahabad High Court held that if the arbitrator had been rendered functus officio, there existed no occasion to invoke the provisions of Sections 14 and 15 of the Act for appointing a substitute arbitrator.
https://www.scconline.com/blog/post/2021/11/17/substitute-arbitrator/
Uttaranchal High Court
- Relief under S. 9 of A&C Act: Can it be granted to a party who is not party to arbitration agreement?
In another case, the Uttaranchal High Court emphasized on the purpose and object of Section 9 of the Arbitration and Conciliation Act, 1996 and held that a person not a party to an arbitration cannot invoke jurisdiction of the court for interim relief under Section 9. The court added that Section 9 was enacted with the intention of preserving and protecting the subject matter of the arbitral proceedings, hence for invoking the jurisdiction of the court under Section 9, the person should be a party to an arbitration agreement.
Madhya Pradesh High Court
- “To err is human and to forgive is divine”; Court directs advocate to plant and take care of saplings as punishment for contempt of female judge after unconditional apology
The MP HC decided a petition which was in reference under Section 15(2) of the Contempt of Courts Act and directed an advocate to plant and take care of 20 saplings as punishment for contempt of a female judge after unconditional apology. The Court said that,
The learned judge was a female Judge and it was expected from the bar members that they will appreciate the multitasking performed by a lady judge while taking care of her home, family as well as work front and therefore, more thoughtfulness and sensitivity is required in this regard. Read the full report on SCC Online Blog.
https://www.scconline.com/blog/post/2021/11/15/to-err-is-human-and-to-forgive-is-divine/
Legislation Updates
- Delhi Special Police Establishment (Amendment) Ordinance, 2021
- Central Vigilance Commission (Amendment) Ordinance, 2021
The President has promulgated Delhi Special Police Establishment (Amendment) Ordinance, 2021 and Central Vigilance Commission (Amendment) Ordinance, 2021 to extend the tenure of Director of CBI and Enforcement Directorate upto five years.
- RBI introduces internal ombudsman mechanism for select Non-Banking Financial Companies (NBFCs)
The Reserve Bank has directed Deposit-taking NBFCs (NBFCs-D) with 10 or more branches and Non-Deposit taking NBFCs (NBFCs-ND) with asset size of Rs.5,000 crore and above having public customer interface to appoint Internal Ombudsman (IO) at the apex of their internal grievance redress mechanism within a period of six months from the date of issue of the direction.
- IFSCA clarifies minimum holding period on sale or transfer of loan assets
The International Financial Services Centres Authority has notified that the Authority does not mandate any Minimum Holding Period (MHP) requirement with respect to sale or transfer of loan assets (by any means) by/to IFSCA banking unit (IBU).
- Delhi Shops and Establishments (Amendment) Rules, 2021
The Labour Department, Delhi has issued Delhi Shops and Establishments (Amendment) Rules, 2021 to further amend the Delhi Shops and Establishments Rules, 1954.
SCC ONLINE QUIZ
In this week’s SCC Online Quiz, we had asked How many points of law have been extracted for Kesavananda Bharti and Golak Nath cases?
Kesavananda Bharati: 151
Golak Nath: 120
Winners are:
Tanishq Aggarwal and Pulkit Agarwal