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1840 deaths in judicial custody, 100 in police custody between 2020-21: Centre

Monetary compensation has been provided in only 593 cases since 2018 to 2021

04 Aug 2021

Judiciary

In a written answer provided by the Ministry of Home Affairs (MHA) on custodial deaths, Minister Nityanand Rai has stated that between 2020 to 2021, as many as 1,840 deaths in judicial custody have been recorded across all states and Union Territories, and 100 deaths have been recorded in police custody.

The state with the highest tally of judicial custody deaths is Uttar Pradesh (443), followed by West Bengal (177), Bihar (156) and Madhya Pradesh (155). Gujarat has reported the highest number of police custodial deaths between 2020 and 2021 at 17, followed by Maharashtra (13) and Madhya Pradesh (8).

The number of judicial custodial deaths have been increasing over the years as 1,797 cases were recorded between 2018 and 2019, and 1,584 cases were reported between 2019 and 2020. As per the details provided by the Home Ministry, Ladakh, Lakshadweep, Puducherry, Daman and Diu, Dadra and Nagar Haveli and Andamans have not reported any cases of deaths in judicial custody between 2020 and 2021.

At the same time, Himachal Pradesh, Manipur, Mizoram, Nagaland, Sikkim, Chandigarh, Daman and Diu, Puducherry, Ladakh, Andamans, Dadra and Nagar Haveli have had no cases of police custodial deaths in the last one year.

Rai’s answer also stated that monetary compensation has been provided in only 593 cases since 2018 to 2021 and only 4 public servants have been pulled up for disciplinary action. His answer read, “NHRC has recommended Rs.15,90,74,998/- as monetary compensation in 593 cases of custodial deaths (Police & Judicial) during the period from 01.04.2018 to 30.06.2021. NHRC recommended disciplinary action in four cases of deaths in judicial custody, against the erring public servants. The disciplinary action against the erring public servant is to be taken by the respective state government as per extant rules and procedures.”

On the question of whether the Government is planning to ratify the United Nation’s Convention on Torture any time soon, it provided a half-baked answer with no conclusivity. The answer read, “In a Court case M.A. No. 2560/2018 in W.P. (C) No. 738/2016 filed by Dr. Ashwani Kumar Vs UOI, in the Hon’ble Supreme Court to implement the Prevention of Torture Bill, the Hon’ble Court stated that in order to ensure that India is in a position to efficiently discharge all obligations emanating from treaties/agreements, such ratifications should be undertaken only after relevant domestic clauses have been amended and the enabling legislations enacted when there is absence of domestic law on the subject. Amendment in the criminal law is a continuous process that has to be in line with social needs. The Ministry of Home Affairs has already initiated a comprehensive review of the criminal laws in consultation with all stakeholders.”

The answer may be read here: 

Related:

Why has India still not ratified UN Convention against torture?
Prevention of torture Bill - the forgotten law

1840 deaths in judicial custody, 100 in police custody between 2020-21: Centre

Monetary compensation has been provided in only 593 cases since 2018 to 2021

Judiciary

In a written answer provided by the Ministry of Home Affairs (MHA) on custodial deaths, Minister Nityanand Rai has stated that between 2020 to 2021, as many as 1,840 deaths in judicial custody have been recorded across all states and Union Territories, and 100 deaths have been recorded in police custody.

The state with the highest tally of judicial custody deaths is Uttar Pradesh (443), followed by West Bengal (177), Bihar (156) and Madhya Pradesh (155). Gujarat has reported the highest number of police custodial deaths between 2020 and 2021 at 17, followed by Maharashtra (13) and Madhya Pradesh (8).

The number of judicial custodial deaths have been increasing over the years as 1,797 cases were recorded between 2018 and 2019, and 1,584 cases were reported between 2019 and 2020. As per the details provided by the Home Ministry, Ladakh, Lakshadweep, Puducherry, Daman and Diu, Dadra and Nagar Haveli and Andamans have not reported any cases of deaths in judicial custody between 2020 and 2021.

At the same time, Himachal Pradesh, Manipur, Mizoram, Nagaland, Sikkim, Chandigarh, Daman and Diu, Puducherry, Ladakh, Andamans, Dadra and Nagar Haveli have had no cases of police custodial deaths in the last one year.

Rai’s answer also stated that monetary compensation has been provided in only 593 cases since 2018 to 2021 and only 4 public servants have been pulled up for disciplinary action. His answer read, “NHRC has recommended Rs.15,90,74,998/- as monetary compensation in 593 cases of custodial deaths (Police & Judicial) during the period from 01.04.2018 to 30.06.2021. NHRC recommended disciplinary action in four cases of deaths in judicial custody, against the erring public servants. The disciplinary action against the erring public servant is to be taken by the respective state government as per extant rules and procedures.”

On the question of whether the Government is planning to ratify the United Nation’s Convention on Torture any time soon, it provided a half-baked answer with no conclusivity. The answer read, “In a Court case M.A. No. 2560/2018 in W.P. (C) No. 738/2016 filed by Dr. Ashwani Kumar Vs UOI, in the Hon’ble Supreme Court to implement the Prevention of Torture Bill, the Hon’ble Court stated that in order to ensure that India is in a position to efficiently discharge all obligations emanating from treaties/agreements, such ratifications should be undertaken only after relevant domestic clauses have been amended and the enabling legislations enacted when there is absence of domestic law on the subject. Amendment in the criminal law is a continuous process that has to be in line with social needs. The Ministry of Home Affairs has already initiated a comprehensive review of the criminal laws in consultation with all stakeholders.”

The answer may be read here: 

Related:

Why has India still not ratified UN Convention against torture?
Prevention of torture Bill - the forgotten law

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Report of PP need not be served upon accused when seeking extension of detention: Bom HC

The court also stated that the substance was more important than the form, and reiterated the apex court’s observations that even if prosecutor does not submit report, there should be material to show that he has indeed scrutinized the material on record

04 Aug 2021

Nagpur BenchImage Courtesy:livelaw.in

The Nagpur Bench of Bombay High Court stressed that substance was more important than form, when meeting the mandatory requirements under section 43-D(2)(b) of Unlawful Activities Prevention Act (UAPA) for seeking extension of detention. The single-judge bench of Justice Manish Pitale found no error in the manner in which the Sessions Court decided upon the application seeking extension of detention, and held that a copy of the report of the public prosecutor is not required to be served upon the accused as the investigation is still in progress.

The applicant (accused), Sanjay Avathare challenged two orders passed by the Sessions court, Gadchiroli; one allowing extension of detention beyond 90 days and the other rejecting default bail application of the accused. The case against the accused was that he was caught carrying Rs. 1.2 crore in cash and he claimed that he was a Manager and that the cash was meant for distribution amongst labourers. Hence, an FIR was lodged under UAPA. Investigation revealed that the cash was meant for payment to Naxalites.

When the period of 90 days from detention was about to expire, an application for extending the detention of the accused was moved, under section 43D of UAPA. The applicant and another accused were put to notice in respect of the said application, and they were heard through their counsel. The Sessions Court allowed the application seeking extension of detention for another 90 days, hence, the application for default bail moved by the applicant was rejected.

Arguments

The counsel for the applicant argued that the mandatory requirement of section 43-D(2)(b) was violated in as much as a proper report indicating satisfaction of the public prosecutor, indicating progress of the investigation and specific reasons for further detention of the accused, was not on record. Further, he contended that report of the public prosecutor was not served upon the accused and that the application was allowed in a mechanical manner. He stated that the applicant was not given a fair opportunity to contest the application for extension of detention.

He also argued that a joint application seeking extension of detention of the applicant and the other accused Lumaji Waghare was defective, as separate applications ought to have been filed enumerating independent grounds while seeking extension of detention of each of the accused. He also contended that the affidavit of the Investigating Officer was not on record supporting the application seeking extension of detention.

The APP for the state, Sagar Ashirgade submitted that the mandatory requirements of law were duly followed and that a report satisfying the requirements of proviso to section 43-D(2)(b) of UAPA. He submitted that a joint application was justified since allegations against both were identical. He also argued that the applicant was not entitled to the copy of the report of public prosecutor because the investigation was still under way.

The court’s observations

The court stated that it shall examine whether mandatory requirements under section 43-D(2)(b) of UAPA were followed, since, if they were not complied with, the applicant would certainly be entitled to consequential relief of default bail. The section states as follows:

“43-D. Modified application of certain provisions of the Code. —

(2) Section 167 of the Code shall apply in relation to a case involving an offence punishable under this Act subject to the modification that in sub-section (2),—

(b) after the proviso, the following provisos shall be inserted, namely:—

“Provided further that if it is not possible to complete the investigation within the said period of ninety days, the Court may if it is satisfied with the report of the Public Prosecutor indicating the progress of the investigation and the specific reasons for the detention of the accused beyond the said period of ninety days, extend the said period up to one hundred and eighty days…”

The court cited Hitendra Vishnu Thakur and ors v. State of Maharashtra and ors, (1994) 4 SCC 602 whereby a similar provision under Terrorist Destructive Activities (Prevention) Act, 1987 came up for consideration before the Supreme Court. The court had held that the report of the public prosecutor is not merely a formality but a very vital report, because the consequence of its acceptance affects the liberty of an accused and it must, therefore, strictly comply with the requirements. “The request of an investigating officer for extension of time is no substitute for the report of the public prosecutor,” the court held and if no such report is filed, the accused shall be granted default bail upon application.

Further, in State of Maharashtra v. Surendra Pundlik Gadling and others, (2019) 5 SCC 178 the Supreme Court had emphasised on “substance over form” when complying with mandatory requirements under section 43-D(2)(b) of UAPA. In this case, the Investigating Officer had submitted an application seeking extension of detention and after referring to such an application, the public prosecutor had in turn moved an application before the Court. The court held that “even if technically there was absence of a “report” of the public prosecutor, yet the prayer for extension of detention of the accused deserved to be granted because there was sufficient material to show that the public prosecutor had indeed scrutinized the material…” the court had thus, allowed extension of detention in this case.

Coming back to the present case, the court stated that the public prosecutor had submitted a report as per proviso to section 43-D(2)(b) of the UAPA stating the progress of investigation and the reasons for extension of detention. A reference was also made to the manner in which the Investigating Officer had proceeded in the matter. The court thus held that the mandatory requirement of a report of the public prosecutor stating reasons for extension of detention is very much satisfied.

The court pointed out that a detailed application was filed which was served upon the applicant and he was represented before the court during the hearing. The court reiterated the Supreme Court’s observations in the Hitendra Vishnu Thakur case that purpose of provisos added to section 43-D(2)(b) of the UAPA, is to ensure that the public prosecutor applies his mind to the reasons put forth by the Investigating Officer while seeking extension of detention.

The substance of the report and the application moved for extension of detention takes precedence over the form of such a report or application, the court held. The court perused the said application and found that it states in detail the progress of the investigation and the reasons for seeking extension of detention. Also, records showed that the public prosecutor had indeed submitted a report before the Sessions Court and that the same was considered by the court. The court thus concluded that the mandatory requirements of law were satisfied.

Copy of report not furnished to accused

The court refused to accept the contention of the applicant’s counsel that the order stood vitiated because the report of the public prosecutor was not furnished to the accused. The court held that such a requirement cannot be read into proviso to section 43-D(2)(b) of the UAPA, since the investigation is still in progress.

"The mandatory requirement of the said proviso is that there should be a report of the public prosecutor indicating the progress of investigation and the specific reasons for further detention of the accused and satisfaction of the Court with such a report. It is crucial that the stage when such an application is moved by the public prosecutor, the investigation is still under progress and it is for the Court to be satisfied with the report submitted by the public prosecutor. Thus, requirement of service of copy of the report to the accused cannot be read into the said proviso to section 43-D(2)(b) of the UAPA,” the court held.

The court further held that since the applicant was served upon the copy of the application and was represented by a counsel during the hearing of the application, no prejudice was caused to the accused persons in the facts and circumstances of the present case for opposing the prayer for extension of detention moved by the public prosecutor.

Joint application justified

The court also accepted the submission made by the APP regarding moving a joint application for extension of detention of both accused. The court concurred with the APP that the progress of the investigation had demonstrated the role of the said two accused persons being identical and the reasons for seeking the extension of their detention were also identical and hence there was no error in submitting joint application.

The court’s decision

The court concluded by stating that the Sessions Court had referred to the reasons put forth by the public prosecutor seeking extension of detention and also perused the case diary for ascertaining the progress of the investigation. Thus, the court found no reason to interfere with the court’s order granting extension of detention and the rejection of default bail to the applicant was only consequential. The court, thus dismissed the application for being without merit.

Recent case in J&K High Court

In a recent case, the Jammu and Kashmir High Court held that the request of an Investigating Officer for time extension for detention under UAPA, cannot be a substitute for the report of the public prosecutor. In this case, the public prosecutor had not filed any report which is contrary to the facts in the above case, where the report was indeed found to be on record before the Sessions court. Yet, the Nagpur bench of Bombay High Stressed upon “substance over form” when meeting the mandatory requirement of the prosecutor’s report.

The requirements under section 43-D(2)(b) of the UAPA mandating report by the prosecutor is to ensure that the prosecutor does not merely forward the Investigating Officer’s request for extension of time to complete investigation and indeed applies his mind. The prosecutor has an option to agree or disagree with the reasons given by I.O. for seeking extension of time and thus, the report of the public prosecutor has been given due significance in the legislation. Yet, the Supreme Court in the Surendra Gadling case has dissolved this proviso and given importance to “substance” over form, negating the intent of the legislation and its mandatory requirements.

The complete judgement may be read here:

Related:

Detention order of accused already in custody must justify preventive detention: MP High Court
NIA court failed to take humanitarian approach: Bom HC grants temporary bail to Surendra Gadling
PP must submit report giving specific reasons for detention under UAPA: J&K and Ladakh HC

Report of PP need not be served upon accused when seeking extension of detention: Bom HC

The court also stated that the substance was more important than the form, and reiterated the apex court’s observations that even if prosecutor does not submit report, there should be material to show that he has indeed scrutinized the material on record

Nagpur BenchImage Courtesy:livelaw.in

The Nagpur Bench of Bombay High Court stressed that substance was more important than form, when meeting the mandatory requirements under section 43-D(2)(b) of Unlawful Activities Prevention Act (UAPA) for seeking extension of detention. The single-judge bench of Justice Manish Pitale found no error in the manner in which the Sessions Court decided upon the application seeking extension of detention, and held that a copy of the report of the public prosecutor is not required to be served upon the accused as the investigation is still in progress.

The applicant (accused), Sanjay Avathare challenged two orders passed by the Sessions court, Gadchiroli; one allowing extension of detention beyond 90 days and the other rejecting default bail application of the accused. The case against the accused was that he was caught carrying Rs. 1.2 crore in cash and he claimed that he was a Manager and that the cash was meant for distribution amongst labourers. Hence, an FIR was lodged under UAPA. Investigation revealed that the cash was meant for payment to Naxalites.

When the period of 90 days from detention was about to expire, an application for extending the detention of the accused was moved, under section 43D of UAPA. The applicant and another accused were put to notice in respect of the said application, and they were heard through their counsel. The Sessions Court allowed the application seeking extension of detention for another 90 days, hence, the application for default bail moved by the applicant was rejected.

Arguments

The counsel for the applicant argued that the mandatory requirement of section 43-D(2)(b) was violated in as much as a proper report indicating satisfaction of the public prosecutor, indicating progress of the investigation and specific reasons for further detention of the accused, was not on record. Further, he contended that report of the public prosecutor was not served upon the accused and that the application was allowed in a mechanical manner. He stated that the applicant was not given a fair opportunity to contest the application for extension of detention.

He also argued that a joint application seeking extension of detention of the applicant and the other accused Lumaji Waghare was defective, as separate applications ought to have been filed enumerating independent grounds while seeking extension of detention of each of the accused. He also contended that the affidavit of the Investigating Officer was not on record supporting the application seeking extension of detention.

The APP for the state, Sagar Ashirgade submitted that the mandatory requirements of law were duly followed and that a report satisfying the requirements of proviso to section 43-D(2)(b) of UAPA. He submitted that a joint application was justified since allegations against both were identical. He also argued that the applicant was not entitled to the copy of the report of public prosecutor because the investigation was still under way.

The court’s observations

The court stated that it shall examine whether mandatory requirements under section 43-D(2)(b) of UAPA were followed, since, if they were not complied with, the applicant would certainly be entitled to consequential relief of default bail. The section states as follows:

“43-D. Modified application of certain provisions of the Code. —

(2) Section 167 of the Code shall apply in relation to a case involving an offence punishable under this Act subject to the modification that in sub-section (2),—

(b) after the proviso, the following provisos shall be inserted, namely:—

“Provided further that if it is not possible to complete the investigation within the said period of ninety days, the Court may if it is satisfied with the report of the Public Prosecutor indicating the progress of the investigation and the specific reasons for the detention of the accused beyond the said period of ninety days, extend the said period up to one hundred and eighty days…”

The court cited Hitendra Vishnu Thakur and ors v. State of Maharashtra and ors, (1994) 4 SCC 602 whereby a similar provision under Terrorist Destructive Activities (Prevention) Act, 1987 came up for consideration before the Supreme Court. The court had held that the report of the public prosecutor is not merely a formality but a very vital report, because the consequence of its acceptance affects the liberty of an accused and it must, therefore, strictly comply with the requirements. “The request of an investigating officer for extension of time is no substitute for the report of the public prosecutor,” the court held and if no such report is filed, the accused shall be granted default bail upon application.

Further, in State of Maharashtra v. Surendra Pundlik Gadling and others, (2019) 5 SCC 178 the Supreme Court had emphasised on “substance over form” when complying with mandatory requirements under section 43-D(2)(b) of UAPA. In this case, the Investigating Officer had submitted an application seeking extension of detention and after referring to such an application, the public prosecutor had in turn moved an application before the Court. The court held that “even if technically there was absence of a “report” of the public prosecutor, yet the prayer for extension of detention of the accused deserved to be granted because there was sufficient material to show that the public prosecutor had indeed scrutinized the material…” the court had thus, allowed extension of detention in this case.

Coming back to the present case, the court stated that the public prosecutor had submitted a report as per proviso to section 43-D(2)(b) of the UAPA stating the progress of investigation and the reasons for extension of detention. A reference was also made to the manner in which the Investigating Officer had proceeded in the matter. The court thus held that the mandatory requirement of a report of the public prosecutor stating reasons for extension of detention is very much satisfied.

The court pointed out that a detailed application was filed which was served upon the applicant and he was represented before the court during the hearing. The court reiterated the Supreme Court’s observations in the Hitendra Vishnu Thakur case that purpose of provisos added to section 43-D(2)(b) of the UAPA, is to ensure that the public prosecutor applies his mind to the reasons put forth by the Investigating Officer while seeking extension of detention.

The substance of the report and the application moved for extension of detention takes precedence over the form of such a report or application, the court held. The court perused the said application and found that it states in detail the progress of the investigation and the reasons for seeking extension of detention. Also, records showed that the public prosecutor had indeed submitted a report before the Sessions Court and that the same was considered by the court. The court thus concluded that the mandatory requirements of law were satisfied.

Copy of report not furnished to accused

The court refused to accept the contention of the applicant’s counsel that the order stood vitiated because the report of the public prosecutor was not furnished to the accused. The court held that such a requirement cannot be read into proviso to section 43-D(2)(b) of the UAPA, since the investigation is still in progress.

"The mandatory requirement of the said proviso is that there should be a report of the public prosecutor indicating the progress of investigation and the specific reasons for further detention of the accused and satisfaction of the Court with such a report. It is crucial that the stage when such an application is moved by the public prosecutor, the investigation is still under progress and it is for the Court to be satisfied with the report submitted by the public prosecutor. Thus, requirement of service of copy of the report to the accused cannot be read into the said proviso to section 43-D(2)(b) of the UAPA,” the court held.

The court further held that since the applicant was served upon the copy of the application and was represented by a counsel during the hearing of the application, no prejudice was caused to the accused persons in the facts and circumstances of the present case for opposing the prayer for extension of detention moved by the public prosecutor.

Joint application justified

The court also accepted the submission made by the APP regarding moving a joint application for extension of detention of both accused. The court concurred with the APP that the progress of the investigation had demonstrated the role of the said two accused persons being identical and the reasons for seeking the extension of their detention were also identical and hence there was no error in submitting joint application.

The court’s decision

The court concluded by stating that the Sessions Court had referred to the reasons put forth by the public prosecutor seeking extension of detention and also perused the case diary for ascertaining the progress of the investigation. Thus, the court found no reason to interfere with the court’s order granting extension of detention and the rejection of default bail to the applicant was only consequential. The court, thus dismissed the application for being without merit.

Recent case in J&K High Court

In a recent case, the Jammu and Kashmir High Court held that the request of an Investigating Officer for time extension for detention under UAPA, cannot be a substitute for the report of the public prosecutor. In this case, the public prosecutor had not filed any report which is contrary to the facts in the above case, where the report was indeed found to be on record before the Sessions court. Yet, the Nagpur bench of Bombay High Stressed upon “substance over form” when meeting the mandatory requirement of the prosecutor’s report.

The requirements under section 43-D(2)(b) of the UAPA mandating report by the prosecutor is to ensure that the prosecutor does not merely forward the Investigating Officer’s request for extension of time to complete investigation and indeed applies his mind. The prosecutor has an option to agree or disagree with the reasons given by I.O. for seeking extension of time and thus, the report of the public prosecutor has been given due significance in the legislation. Yet, the Supreme Court in the Surendra Gadling case has dissolved this proviso and given importance to “substance” over form, negating the intent of the legislation and its mandatory requirements.

The complete judgement may be read here:

Related:

Detention order of accused already in custody must justify preventive detention: MP High Court
NIA court failed to take humanitarian approach: Bom HC grants temporary bail to Surendra Gadling
PP must submit report giving specific reasons for detention under UAPA: J&K and Ladakh HC

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SC draws distinction between disturbance of law & order, and disturbance of public order

he court quashed detention order, and held that Preventive Detention Order can only be passed if the activities adversely affect or are likely to adversely affect the maintenance of public order

04 Aug 2021

Public OrderImage Courtesy:livelaw.in

On August 2, the Supreme Court quashed a detention order passed against a man booked for duping people for money promising high returns, while observing that mere contravention of law cannot be said to affect ‘public order’, unless it affects the community or the public at large. The bench of Justices RF Nariman and Hrishikesh Roy cited several relevant judgements to point out the difference between disturbance to law and order and disturbance to public order.

Background

The appellant, Banka Sneha Sheela (wife of the detenu) had filed an appeal against the March 31 judgement passed by Telangana High Court dismissing the writ petition challenging the preventive detention under Telangana Prevention of Dangerous Activities Act. There were 5 FIRs filed against the detenu related to a case of cheating by soliciting money from the complainants promising high returns. The detention order mentions that the detenu had been granted anticipatory bail in all the FIRs registered against him but having regard to his involvement in series of criminal activities, the court was satisfied that free movement of an offender like him is not safe in the interest of the society as there is an imminent possibility of him indulging in similar prejudicial activities with another set of innocent youth and cheat them on the pretext of providing good profit.

The detention order said, “Further your acts have been adversely affecting the maintenance of public order and creating feeling of insecurity among young people, thus disturbing peace and tranquillity in the area. It is imperative to prevent you from acting in any manner prejudicial to the maintenance of public order. I feel that recourse to normal law may not be effective deterrent-in preventing you from indulging in such further activities prejudicial to the maintenance of public order in the area, unless you were detained…”

The detention order was passed on October 31, 2020, and was confirmed by the Advisory Board on November 11, 2020; the detention was to continue for one year. The impugned judgement of the high court noted that since the detenu was already granted bail the contentions in the detention order that the detenu would disturb the even tempo of life of the community which makes it prejudicial to the maintenance of the public order and there is imminent possibility of the detenu again indulging in similar prejudicial activities, cannot be brushed aside.

The judgement stated thus,

“Since the detenu got bail in all the five cases relied upon by the detaining authority, there is nothing wrong on the part of the detaining authority in raising an apprehension that there is every possibility of the detenu committing similar offences, which would again certainly affect the public order. The quick succession of commission of alleged offences by the detenu makes it amply clear that there is every possibility of detenu committing similar offences in future, which are prejudicial to the maintenance of public order.”

Arguments

The counsel for the appellant pointed out that the FIRs were filed in December 2019, while the detention order was passed in October 2020. Therefore, there was no proximate or live connection between the acts complained of and the date of the Detention Order. He further argued that at best only a law and order issue would arise based on the facts of the case and not a ‘public order’ problem. He further argued that the Detention Order was totally perverse in that it was passed only because anticipatory bail was granted, and the State should have instead moved the court to cancel the bail instead.

The counsel for the State, Ranjit Kumar, argued that the Detenu was a habitual fraudster who had therefore created fear amongst the gullible public, and since he was likely to commit similar offences in future, it was important to preventively detain him, as the ordinary law had no deterrent effect on him. He also argued that the detenu had disturbed the even tempo of life of persons who were cheated by him, and were likely to be cheated by him.

The court’s observations

The court firstly analysed the definition of “public order” under the Act where it was stated that “public order shall be deemed to have been affected adversely or shall be deemed likely to be affected adversely inter alia, if any of the activities of any of the persons referred to in this clause directly, or indirectly, is causing or calculated to cause any harm, danger or alarm or a feeling of insecurity among the general public or any section thereof or a grave wide-spread danger to life or public health”.

The court held that while it cannot seriously be disputed that the Detenu may be a “white collar offender” as defined under Section 2(x) of the Telangana Prevention of Dangerous Activities Act, yet a Preventive Detention Order can only be passed if his activities adversely affect or are likely to adversely affect the maintenance of public order.

The court cited Ram Manohar Lohia v. State of Bihar (1966) 1 SCR 709 whereby the court had set out the distinction between a mere law and order disturbance and a public order disturbance. The judgement had stated that, “Disorder is no doubt prevented by the maintenance of law and order also but disorder is a broad spectrum which includes at one end small disturbances and at the other the most serious and cataclysmic happenings. Does the expression “public order” take in every kind of disorders or only some of them? The answer to this serves to distinguish “public order” from “law and order” because the latter undoubtedly takes in all of them. Public order if disturbed, must lead to public disorder. Every breach of the peace does not lead to public disorder…The contravention of  law always affects order but before it can be said to affect public order, it must affect the community or the public at large.”

The court adopted this precedent verbatim and stated, “There can be no doubt that for ‘public order’ to be disturbed, there must in turn be public disorder. Mere contravention of law such as indulging in cheating or criminal breach of trust certainly affects ‘law and order’ but before it can be said to affect ‘public order’, it must affect the community or the public at large.”

The court held that what is alleged in the FIRs pertains to the realm of ‘law and order’ but the reason for detention is not any apprehension of widespread public harm, danger or alarm but is only because the Detenu was successful in obtaining anticipatory bail. “The mere successful obtaining of anticipatory bail/bail orders being the real ground for detaining the Detenu, there can be no doubt that the harm, danger or alarm or feeling of security among the general public spoken of in Section 2(a) of the Telangana Prevention of Dangerous Activities Act is make believe and totally absent in the facts of the present case,” the court said.

The court refused to take a liberal meaning of the expression of public order. It also pointed out that preventive detention must fall within the four corners of Article 21 read with Article 22 and the statute in question.

“Considering that preventive detention is a necessary evil only to prevent public disorder, the Court must ensure that the facts brought before it directly and inevitably lead to a harm, danger or alarm or feeling of insecurity among the general public or any section thereof at large,” held the court.

The court also emphasised upon the role of courts in scrutinising preventive detention orders. The court cited Vijay Narain Singh v. State of Bihar (1984) 3 SCC 14 whereby it was held that, “It is not intended for the purpose of keeping a man under detention when under ordinary criminal law it may not be possible to resist the issue of orders of bail, unless the material available is such as would satisfy the requirements of the legal provisions authorising such detention. When a person is enlarged on bail by a competent criminal court, great caution should be exercised in scrutinising the validity of an order of preventive detention which is based on the very same charge which is to be tried by the criminal court.” In the concurring judgement, Justice O Chinappa Reddy had stated, “Preventive detention is considered so treacherous and such an anathema to civilised thought and democratic polity that safeguards against undue exercise of the power to detain without trial, have been built into the Constitution itself and incorporated as Fundamental Rights…the courts are required to examine, when demanded, whether there has been any excessive detention, that is whether the limits set by the Constitution and the Legislature have been transgressed. Preventive detention is not beyond judicial scrutiny.”

In Union of India v. Yumnam Anand (2007) 10 SCC 190, the court had held, “No law is an end itself and the curtailment of liberty for reasons of State's security and national economic discipline as a necessary evil has to be administered under strict constitutional restrictions. No carte blanche is given to any organ of the State to be the sole arbiter in such matters.”

In Rekha v. State of Tamil Nadu, (2011) 5 SCC 244, the court had deemed Article 22 to be an exception to Article 22 of the Constitution and held that Article 22 cannot be read in isolation. The court further made a very important observation about legality of a detention order, “Whenever an order under a preventive detention law is challenged one of the questions the court must ask in deciding its legality is: was the ordinary law of the land sufficient to deal with the situation? If the answer is in the affirmative, the detention order will be illegal.”

In Mungala Yadamma v. State of A.P. (2012) 2 SCC 386, the court held that the offences therein were of a nature which can be dealt with under the ordinary law of the land and that taking recourse to preventive detention is contrary to the constitutional guarantees enshrined in Articles 19 and 21 of the Constitution.

The court’s decision

The court held that at the most, “a possible apprehension of breach of law and order can be said to be made out if it is apprehended that the Detenu, if set free, will continue to cheat gullible persons,” the court stated that this can be a ground for appealing against the bail granted but “certainly cannot provide the springboard to move under a preventive detention statute”.

The court, thus, quashed the detention order and set aside the high court’s judgement as well, while also directing the release of the detenu.

The complete judgement may be read here:

Related:

Detention order of accused already in custody must justify preventive detention: MP High Court
NIA court failed to take humanitarian approach: Bom HC grants temporary bail to Surendra Gadling
PP must submit report giving specific reasons for detention under UAPA: J&K and Ladakh HC

SC draws distinction between disturbance of law & order, and disturbance of public order

he court quashed detention order, and held that Preventive Detention Order can only be passed if the activities adversely affect or are likely to adversely affect the maintenance of public order

Public OrderImage Courtesy:livelaw.in

On August 2, the Supreme Court quashed a detention order passed against a man booked for duping people for money promising high returns, while observing that mere contravention of law cannot be said to affect ‘public order’, unless it affects the community or the public at large. The bench of Justices RF Nariman and Hrishikesh Roy cited several relevant judgements to point out the difference between disturbance to law and order and disturbance to public order.

Background

The appellant, Banka Sneha Sheela (wife of the detenu) had filed an appeal against the March 31 judgement passed by Telangana High Court dismissing the writ petition challenging the preventive detention under Telangana Prevention of Dangerous Activities Act. There were 5 FIRs filed against the detenu related to a case of cheating by soliciting money from the complainants promising high returns. The detention order mentions that the detenu had been granted anticipatory bail in all the FIRs registered against him but having regard to his involvement in series of criminal activities, the court was satisfied that free movement of an offender like him is not safe in the interest of the society as there is an imminent possibility of him indulging in similar prejudicial activities with another set of innocent youth and cheat them on the pretext of providing good profit.

The detention order said, “Further your acts have been adversely affecting the maintenance of public order and creating feeling of insecurity among young people, thus disturbing peace and tranquillity in the area. It is imperative to prevent you from acting in any manner prejudicial to the maintenance of public order. I feel that recourse to normal law may not be effective deterrent-in preventing you from indulging in such further activities prejudicial to the maintenance of public order in the area, unless you were detained…”

The detention order was passed on October 31, 2020, and was confirmed by the Advisory Board on November 11, 2020; the detention was to continue for one year. The impugned judgement of the high court noted that since the detenu was already granted bail the contentions in the detention order that the detenu would disturb the even tempo of life of the community which makes it prejudicial to the maintenance of the public order and there is imminent possibility of the detenu again indulging in similar prejudicial activities, cannot be brushed aside.

The judgement stated thus,

“Since the detenu got bail in all the five cases relied upon by the detaining authority, there is nothing wrong on the part of the detaining authority in raising an apprehension that there is every possibility of the detenu committing similar offences, which would again certainly affect the public order. The quick succession of commission of alleged offences by the detenu makes it amply clear that there is every possibility of detenu committing similar offences in future, which are prejudicial to the maintenance of public order.”

Arguments

The counsel for the appellant pointed out that the FIRs were filed in December 2019, while the detention order was passed in October 2020. Therefore, there was no proximate or live connection between the acts complained of and the date of the Detention Order. He further argued that at best only a law and order issue would arise based on the facts of the case and not a ‘public order’ problem. He further argued that the Detention Order was totally perverse in that it was passed only because anticipatory bail was granted, and the State should have instead moved the court to cancel the bail instead.

The counsel for the State, Ranjit Kumar, argued that the Detenu was a habitual fraudster who had therefore created fear amongst the gullible public, and since he was likely to commit similar offences in future, it was important to preventively detain him, as the ordinary law had no deterrent effect on him. He also argued that the detenu had disturbed the even tempo of life of persons who were cheated by him, and were likely to be cheated by him.

The court’s observations

The court firstly analysed the definition of “public order” under the Act where it was stated that “public order shall be deemed to have been affected adversely or shall be deemed likely to be affected adversely inter alia, if any of the activities of any of the persons referred to in this clause directly, or indirectly, is causing or calculated to cause any harm, danger or alarm or a feeling of insecurity among the general public or any section thereof or a grave wide-spread danger to life or public health”.

The court held that while it cannot seriously be disputed that the Detenu may be a “white collar offender” as defined under Section 2(x) of the Telangana Prevention of Dangerous Activities Act, yet a Preventive Detention Order can only be passed if his activities adversely affect or are likely to adversely affect the maintenance of public order.

The court cited Ram Manohar Lohia v. State of Bihar (1966) 1 SCR 709 whereby the court had set out the distinction between a mere law and order disturbance and a public order disturbance. The judgement had stated that, “Disorder is no doubt prevented by the maintenance of law and order also but disorder is a broad spectrum which includes at one end small disturbances and at the other the most serious and cataclysmic happenings. Does the expression “public order” take in every kind of disorders or only some of them? The answer to this serves to distinguish “public order” from “law and order” because the latter undoubtedly takes in all of them. Public order if disturbed, must lead to public disorder. Every breach of the peace does not lead to public disorder…The contravention of  law always affects order but before it can be said to affect public order, it must affect the community or the public at large.”

The court adopted this precedent verbatim and stated, “There can be no doubt that for ‘public order’ to be disturbed, there must in turn be public disorder. Mere contravention of law such as indulging in cheating or criminal breach of trust certainly affects ‘law and order’ but before it can be said to affect ‘public order’, it must affect the community or the public at large.”

The court held that what is alleged in the FIRs pertains to the realm of ‘law and order’ but the reason for detention is not any apprehension of widespread public harm, danger or alarm but is only because the Detenu was successful in obtaining anticipatory bail. “The mere successful obtaining of anticipatory bail/bail orders being the real ground for detaining the Detenu, there can be no doubt that the harm, danger or alarm or feeling of security among the general public spoken of in Section 2(a) of the Telangana Prevention of Dangerous Activities Act is make believe and totally absent in the facts of the present case,” the court said.

The court refused to take a liberal meaning of the expression of public order. It also pointed out that preventive detention must fall within the four corners of Article 21 read with Article 22 and the statute in question.

“Considering that preventive detention is a necessary evil only to prevent public disorder, the Court must ensure that the facts brought before it directly and inevitably lead to a harm, danger or alarm or feeling of insecurity among the general public or any section thereof at large,” held the court.

The court also emphasised upon the role of courts in scrutinising preventive detention orders. The court cited Vijay Narain Singh v. State of Bihar (1984) 3 SCC 14 whereby it was held that, “It is not intended for the purpose of keeping a man under detention when under ordinary criminal law it may not be possible to resist the issue of orders of bail, unless the material available is such as would satisfy the requirements of the legal provisions authorising such detention. When a person is enlarged on bail by a competent criminal court, great caution should be exercised in scrutinising the validity of an order of preventive detention which is based on the very same charge which is to be tried by the criminal court.” In the concurring judgement, Justice O Chinappa Reddy had stated, “Preventive detention is considered so treacherous and such an anathema to civilised thought and democratic polity that safeguards against undue exercise of the power to detain without trial, have been built into the Constitution itself and incorporated as Fundamental Rights…the courts are required to examine, when demanded, whether there has been any excessive detention, that is whether the limits set by the Constitution and the Legislature have been transgressed. Preventive detention is not beyond judicial scrutiny.”

In Union of India v. Yumnam Anand (2007) 10 SCC 190, the court had held, “No law is an end itself and the curtailment of liberty for reasons of State's security and national economic discipline as a necessary evil has to be administered under strict constitutional restrictions. No carte blanche is given to any organ of the State to be the sole arbiter in such matters.”

In Rekha v. State of Tamil Nadu, (2011) 5 SCC 244, the court had deemed Article 22 to be an exception to Article 22 of the Constitution and held that Article 22 cannot be read in isolation. The court further made a very important observation about legality of a detention order, “Whenever an order under a preventive detention law is challenged one of the questions the court must ask in deciding its legality is: was the ordinary law of the land sufficient to deal with the situation? If the answer is in the affirmative, the detention order will be illegal.”

In Mungala Yadamma v. State of A.P. (2012) 2 SCC 386, the court held that the offences therein were of a nature which can be dealt with under the ordinary law of the land and that taking recourse to preventive detention is contrary to the constitutional guarantees enshrined in Articles 19 and 21 of the Constitution.

The court’s decision

The court held that at the most, “a possible apprehension of breach of law and order can be said to be made out if it is apprehended that the Detenu, if set free, will continue to cheat gullible persons,” the court stated that this can be a ground for appealing against the bail granted but “certainly cannot provide the springboard to move under a preventive detention statute”.

The court, thus, quashed the detention order and set aside the high court’s judgement as well, while also directing the release of the detenu.

The complete judgement may be read here:

Related:

Detention order of accused already in custody must justify preventive detention: MP High Court
NIA court failed to take humanitarian approach: Bom HC grants temporary bail to Surendra Gadling
PP must submit report giving specific reasons for detention under UAPA: J&K and Ladakh HC

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Inform prisoners about rights, parole provisions: Rajasthan HC

Prison Watch: Court reminds Prison Superintendent of the duty to inform all eligible prisoners of their right to be considered for being released on parole as soon as their cause becomes ripe

03 Aug 2021

Rajasthan HCImage Courtesy:livelaw.in

The Rajasthan High Court has stressed upon the need to inform convicts of the provisions of parole that can be availed by them as per the Rajasthan Prisoners Release on Parole Rules, 2021. The court was dealing with a petition filed by a life convict who had sought parole after 14 years in prison and the court was dismayed to have learnt that it took so long for the convict to seek parole.

This seemingly indicated that the prisoner was not aware of this right to parole that was bestowed upon convicts and thus the court gave specific direction to display the same in prisons so that prisoners are aware of the same.

The bench of Justices Sandeep Mehta and Manoj Kumar Garg was dealing with a petition of convict Rakesh undergoing life imprisonment at the Open Air Camp, Barmer who has undergone more than 14 years of his sentence. He had applied for parole in February which was accepted by the District Parole Advisory Committee with some recommendations. Citing poor family conditions and other impediments as reason, the convict petitioner has forwarded this writ petition from jail praying that the requirement of furnishing surety bonds imposed in the recommendations be relaxed as he has no means to pay surety and continues to languish in custody.

Upon receiving a report about the family condition of the petitioner, it was found that he has no moveable or immoveable property. The court observed that this was a “pathetic state of affairs”, as the convicts after serving 14 years in prison were being considered for parole for the first time. The court then stressed upon the need for a reformative theory of punishment that will ensure convicts’ reintegration into the society.

The court highlighted that as per Rule 10 of the Rajasthan Prisoners Release on Parole Rules, 2021, every prisoner, who has served a particular part of his sentence (with the maximum being 5 years for life convicts) earns a right to be considered for release on parole. “We have come across numerous cases wherein, the convicts languishing in jails for prolonged periods unable to avail the facility of parole because of poverty/ illiteracy and other trivial thereby, frustrating the spirit of the welfare legislation i.e. the Rules of 2021 (previously Rules of 1958),” the court observed.

The court was disturbed to learn that the petitioner after serving 14 years was being granted parole for the first time, thus it directed the Member Secretary, Rajasthan State Legal Services Authority in coordination with the Director General of Prison to prepare a computerised database of convicts lodged in the prisons all over the State of Rajasthan which may include the broad details viz. date of arrest of the convict; sentence served by him/her; jail punishment, if any; period of abscondence, if any; paroles granted, if any and submit the details by September 14.

The court further directed, “A prominent sign board shall be installed at the entries of all Central Jails in the State of Rajasthan displaying in Hindi the gist of Rule 10 of the Rajasthan Prisoners Release on Parole Rules, 2021.” The court also cast upon the Superintendent of the prison the duty to inform all eligible prisoners of their right to be considered for being released on parole as soon as their cause becomes ripe.

The court thus waived off the surety and instead imposed a personal bond to the tune of Rs. 1 lakh to the satisfaction of the Superintendent, District Jail, Barmer. The court also directed the petitioner to submit an undertaking to the Superintendent that he shall keep peace and good behaviour during the period of parole and shall not try to abscond failing which, his future opportunities of getting parole/ permanent parole/ staying in the Open Air Camp shall stand forfeited/ curtailed. The court gave the superintendent the liberty to impose other adequate and reasonable conditions to ensure return of the convict to the prison.

This judgement also brought to fore the issue of surety that may be imposed by the district committee considering parole. More often than not, convicts serving their sentences in prisons belong to marginalised communities and cannot afford to find a surety of any amount. Further, there are prisoners who have not been in contact with their families for years either due to their economic condition or due to being lodged in prisons far away from their homes. Thus, finding a surety that will enable them to come out on parole is next to impossible. This probably leads to convicts languishing in prisons even if they are granted parole or it might also discourage some others from applying for parole due to their inability to procure surety for their temporary release. Certainly, surety is being imposed to ensure that a convict returns to prison and does not violate parole conditions. However, the necessity of surety in some cases needs to be reviewed seriously by the concerned authority granting parole, which includes doing an assessment of the convict's assets as well as assets of his family members and whether they will be able to stand as surety for him.

https://ssl.gstatic.com/ui/v1/icons/mail/images/cleardot.gifParole, as the court stated, is a matter of right for a convict. Certainly, some convicts who have committed much serious offences against the state like terrorism and serious sexual offences or offences like murder are not privy to the freedom that comes with parole. That leaves us with convicts who have committed other kinds of crimes and deserve their chance at reformation and reintegration into society once their complete sentence is concluded. Parole as a concept is from the positivist school of thought and is a correctional process aimed at social rehabilitation. Also, parole proves to be an incentive to a convict who really wishes to transform and reform oneself. This is evident from the provisions of parole that do not allow a subsequent parole if any former parole condition has been violated. This motivates prisoners to be on good behavior and truly transform themselves which is the goal of correctional homes or prisons in the long run.

Thus, it becomes important that prisoners are made aware of such provisions by displaying them in prison premises and such a move is welcome, for being adopted in prisons all across the country.

The complete judgement may be read here:

Related:

Detention order of accused already in custody must justify preventive detention: MP High Court
NIA court failed to take humanitarian approach: Bom HC grants temporary bail to Surendra Gadling
Release remaining Bhima Koregaon accused: CJP writes to Maharashtra CM

Inform prisoners about rights, parole provisions: Rajasthan HC

Prison Watch: Court reminds Prison Superintendent of the duty to inform all eligible prisoners of their right to be considered for being released on parole as soon as their cause becomes ripe

Rajasthan HCImage Courtesy:livelaw.in

The Rajasthan High Court has stressed upon the need to inform convicts of the provisions of parole that can be availed by them as per the Rajasthan Prisoners Release on Parole Rules, 2021. The court was dealing with a petition filed by a life convict who had sought parole after 14 years in prison and the court was dismayed to have learnt that it took so long for the convict to seek parole.

This seemingly indicated that the prisoner was not aware of this right to parole that was bestowed upon convicts and thus the court gave specific direction to display the same in prisons so that prisoners are aware of the same.

The bench of Justices Sandeep Mehta and Manoj Kumar Garg was dealing with a petition of convict Rakesh undergoing life imprisonment at the Open Air Camp, Barmer who has undergone more than 14 years of his sentence. He had applied for parole in February which was accepted by the District Parole Advisory Committee with some recommendations. Citing poor family conditions and other impediments as reason, the convict petitioner has forwarded this writ petition from jail praying that the requirement of furnishing surety bonds imposed in the recommendations be relaxed as he has no means to pay surety and continues to languish in custody.

Upon receiving a report about the family condition of the petitioner, it was found that he has no moveable or immoveable property. The court observed that this was a “pathetic state of affairs”, as the convicts after serving 14 years in prison were being considered for parole for the first time. The court then stressed upon the need for a reformative theory of punishment that will ensure convicts’ reintegration into the society.

The court highlighted that as per Rule 10 of the Rajasthan Prisoners Release on Parole Rules, 2021, every prisoner, who has served a particular part of his sentence (with the maximum being 5 years for life convicts) earns a right to be considered for release on parole. “We have come across numerous cases wherein, the convicts languishing in jails for prolonged periods unable to avail the facility of parole because of poverty/ illiteracy and other trivial thereby, frustrating the spirit of the welfare legislation i.e. the Rules of 2021 (previously Rules of 1958),” the court observed.

The court was disturbed to learn that the petitioner after serving 14 years was being granted parole for the first time, thus it directed the Member Secretary, Rajasthan State Legal Services Authority in coordination with the Director General of Prison to prepare a computerised database of convicts lodged in the prisons all over the State of Rajasthan which may include the broad details viz. date of arrest of the convict; sentence served by him/her; jail punishment, if any; period of abscondence, if any; paroles granted, if any and submit the details by September 14.

The court further directed, “A prominent sign board shall be installed at the entries of all Central Jails in the State of Rajasthan displaying in Hindi the gist of Rule 10 of the Rajasthan Prisoners Release on Parole Rules, 2021.” The court also cast upon the Superintendent of the prison the duty to inform all eligible prisoners of their right to be considered for being released on parole as soon as their cause becomes ripe.

The court thus waived off the surety and instead imposed a personal bond to the tune of Rs. 1 lakh to the satisfaction of the Superintendent, District Jail, Barmer. The court also directed the petitioner to submit an undertaking to the Superintendent that he shall keep peace and good behaviour during the period of parole and shall not try to abscond failing which, his future opportunities of getting parole/ permanent parole/ staying in the Open Air Camp shall stand forfeited/ curtailed. The court gave the superintendent the liberty to impose other adequate and reasonable conditions to ensure return of the convict to the prison.

This judgement also brought to fore the issue of surety that may be imposed by the district committee considering parole. More often than not, convicts serving their sentences in prisons belong to marginalised communities and cannot afford to find a surety of any amount. Further, there are prisoners who have not been in contact with their families for years either due to their economic condition or due to being lodged in prisons far away from their homes. Thus, finding a surety that will enable them to come out on parole is next to impossible. This probably leads to convicts languishing in prisons even if they are granted parole or it might also discourage some others from applying for parole due to their inability to procure surety for their temporary release. Certainly, surety is being imposed to ensure that a convict returns to prison and does not violate parole conditions. However, the necessity of surety in some cases needs to be reviewed seriously by the concerned authority granting parole, which includes doing an assessment of the convict's assets as well as assets of his family members and whether they will be able to stand as surety for him.

https://ssl.gstatic.com/ui/v1/icons/mail/images/cleardot.gifParole, as the court stated, is a matter of right for a convict. Certainly, some convicts who have committed much serious offences against the state like terrorism and serious sexual offences or offences like murder are not privy to the freedom that comes with parole. That leaves us with convicts who have committed other kinds of crimes and deserve their chance at reformation and reintegration into society once their complete sentence is concluded. Parole as a concept is from the positivist school of thought and is a correctional process aimed at social rehabilitation. Also, parole proves to be an incentive to a convict who really wishes to transform and reform oneself. This is evident from the provisions of parole that do not allow a subsequent parole if any former parole condition has been violated. This motivates prisoners to be on good behavior and truly transform themselves which is the goal of correctional homes or prisons in the long run.

Thus, it becomes important that prisoners are made aware of such provisions by displaying them in prison premises and such a move is welcome, for being adopted in prisons all across the country.

The complete judgement may be read here:

Related:

Detention order of accused already in custody must justify preventive detention: MP High Court
NIA court failed to take humanitarian approach: Bom HC grants temporary bail to Surendra Gadling
Release remaining Bhima Koregaon accused: CJP writes to Maharashtra CM

Related Articles


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Kaimur Police firing: 15 Adivasi-activists get bail for lack of evidence

During a sit in protest for forests and lands, the Bihar Police open fired, lathi charged and even arrested some of them in 2020 and 2021

31 Jul 2021

Adivasi

A sessions court in Kaimur, Bihar has granted bail to 15 Adivasis protestors who had staged a peaceful sit-in protest demanding rights over forest land and resources last year in September.

The accused- Kailash Urawan, Mahendra Singh, Jawahar Singh, Ramlal Singh, Ramlayak Singh, Mohan Singh, Sunil Kumar, Fulmatiya Devi, Vijay Shankar Singh, Balkeshwar Singh, Parikha Singh, Rupnarayan Ram, Lal Bihari Singh, Dinanath Singh and Mehaki Devi were arrested and made to spend 2 weeks in jail.

They were booked under sections 147 (punishment for rioting), 148 (Rioting, armed with deadly weapon), 149 (unlawful assembly), 323 (Punishment for voluntarily causing hurt), 307 (attempt to murder), 353 (Assault or criminal force to deter public servant from discharge of his duty), 332 (Voluntarily causing hurt to deter public servant from his duty), 188 (Disobedience to order duly promulgated by public servant), 427 (Mischief causing damage to the amount of fifty rupees), 342 (Punishment for wrongful confinement.) of the Indian Penal Code and section 27 (use of arms or ammunition) of the Arms Act.

The State’s allegations

The additional public prosecutor argued that the allegations were serious in nature and eight policemen have received injuries in the hurling of brick bats by the mob which included the 15 Adivasi protestors. He further contended that some circumstances where policemen are not seriously injured, should also not be taken lightly as it directly affects the “maintenance of law and order by the police and leniency will send a wrong message to the society that law breakers can take on the police with impunity.”

The Station House Officer at the Adhaura Police Station had recorded that on September 10, 2020, the members of an organisation Kaimur Mukti Morcha (KMM) had organised a two days sit-in protest in the proximity of Adhaura Block Head Office “without any permission in which they locked the block office and the exit of office of Forest Department illegally which was force opened with the help of police force.”

On September 11, some KMM members blocked the main and branch road, sat there and made provocative speeches on a loudspeaker. 400-500 men and women were participating in this sit-in demonstration. The proceedings were going on peacefully but, in the afternoon, the mob entered the block office and ransacked it which was prevented by the use of force. The Police alleged that the protestors locked the main gate of the block office which was broken open by the police later.

Thereafter, this alleged unruly crowd ran towards the office of Forest Department, entered the barrack and damaged the computer set, photocopy machine, table, chair, Almirah and many official documents, patrolling vehicle and the doors of the range office. The police and forest officers present tried to exhort them but to no avail, the prosecutor alleged. Further, the protesters were accused of setting these premises on fire and hurling brick bats on the police and forest officials. To disperse the mob, the prosecutor argued that the police resorted to use of ‘mild force’ and also fired in the air to defend themselves but the mob kept on hurling brick bats in which six police persons and two personnel of the forest department received injuries. Close to 30 people were identified as being part of the mob, including the 15 activists.

Court finds no evidence

The Additional Sessions Judge, however, found no merit in the State’s case. The court found that in the case diary, no specific role has been assigned to them nor it is mentioned in what manner they had participated in the occurrence. The order also read, “The period during which the petitioners could have been taken for interrogation in police remand is over and no TIP (test identification parade) of them has been conducted despite them being in custody for more than 15 days. In my opinion their continued custody will not serve any purpose. Further, from the material available on the record so far, no case for offence u/s 307, 333 of IPC is being made out against the petitioners even if they have been made accused by resorting to section 149 IPC as the injuries on the persons of the injured are simple and generally on non-vital part of the body. The case of these petitioners stands on similar footing to the accused who have already been granted regular bail by this court.”

The accused here are- Seepahi Singh, age 65 years from Goiyan, Dharmender Singh, age 25 years from Bardihya, Pappu Paswan, age 23 years from Jharpa, Lallan Singh Kharwa, age 45 years from Baraap, Kailash Singh, age 62 from Bardiha, Ram Shakal Singh Kharwar, age 52 years from Goiyan and Haricharan Singh, age 65 from Sarainar who were granted bail on October 16, as per the fact-finding report co-published by CJP, along with All India Union of Forest Working People and the Delhi Solidarity Group.

Fact-finding report contravenes the State’s accusations

CJP, SabrangIndia’s sister publication, has co-published a fact-finding report with All India Union of Forest Working People and the Delhi Solidarity Group on this incident. The teams of AIUFWP and DSG visited the Adhaura Block, Kaimur District of Bihar from September 23 to 27, 2020. The entire report may be read here:

What came to light was that some seven activists were not just fired upon and injured in the firing and lathi-charged but were also picked up by the police on trumped up charges. On October 16, all seven were released on bail. Two days later, in response to the ‘boycott election call’ given by the Kaimur Mukti Morcha (KMM), an organisation formed in the 1990s to democratically struggle for the land rights of the people of Kaimur, political heavyweights including the central minister of state for home, Nityanand Rai, air dropped into the far reaches of Kaimur, pleading with the protesters to lift the boycott call.

The protest had started on September 10, where thousands of Adivasis including women, men, youths and children from 108 villages of Adhaura Block mobilised themselves in front of the forest department office at Adhaura. They were demanding for the implementation of Forest Rights Act 2006 and Panchayats (Extension to Scheduled Areas) Act, 1996. They were also demanding to declare Kaimur as a Scheduled area as per the Fifth Schedule of the Constitution Panchayats, implement the Chota Nagpur Tenancy Act and abolish the proposed Kaimur Forest Wildlife Sanctuary and Tiger Reserve.

Since there was no response from the administration, their protest continued. When the delegated representatives went inside the forest department office to negotiate some dialogue, they were abused and man-handled by officials and later on, and quite suddenly, more police poured in, along with CRPF personnel, and unleased a brutal assault on the Adivasi demonstrators. The police opened fire and lathi-charged the protesters.

On September 12, Kaimur Mukti Morcha’s office in Adhaura was ransacked by the police. Dozens of activists affiliated with Kaimur Mukti Morcha were arrested on false charges by the police, but were granted bail on October 16.

CJP-AIUFWP’s complaint to NHRC

On September 30, CJP and AIUFWP had complained to the Human Rights Commission (NHRC) about this brutal incident. The complaint had pointed out how the protestors had asked prior permission for the protests, something that the State has alleged was not done.

A letter dated September 13, 2020 was addressed to Shri Manoj Jha, member of Rajya Sabha in India Parliament in relation to the firing at Adivasis at the protest in Kaimur, Bihar on September 11, 2020 by AIUFWP. The same letter mentions the aforementioned incidents and also that activists of Kaimur Mukti Morcha had circulated ten thousand pamphlets informing the villagers, Gram Sabha, Police and Forest Department about the protests of September 10 and 11, 2020 one month prior to fight for their rights. Another letter dated September 15, 2020 was addressed to the Director General of Police, Patna Bihar in relation to the firing at Kaimur Activists and forest dwellers by the AIUFWP on the same issues. Both letters attached the copy of the pamphlet that was circulated to inform people about the protests. The pamphlets call for unity against the fight for their rights to water, forest and land. The entire complaint may be read here:

The bail order dated July 28 may be read here:

Related:

CJP-AIUFWP move NHRC against firing on peaceful Adivasi protesters in Kaimur
Kaimur Firing: Fact-finding report released

Kaimur Police firing: 15 Adivasi-activists get bail for lack of evidence

During a sit in protest for forests and lands, the Bihar Police open fired, lathi charged and even arrested some of them in 2020 and 2021

Adivasi

A sessions court in Kaimur, Bihar has granted bail to 15 Adivasis protestors who had staged a peaceful sit-in protest demanding rights over forest land and resources last year in September.

The accused- Kailash Urawan, Mahendra Singh, Jawahar Singh, Ramlal Singh, Ramlayak Singh, Mohan Singh, Sunil Kumar, Fulmatiya Devi, Vijay Shankar Singh, Balkeshwar Singh, Parikha Singh, Rupnarayan Ram, Lal Bihari Singh, Dinanath Singh and Mehaki Devi were arrested and made to spend 2 weeks in jail.

They were booked under sections 147 (punishment for rioting), 148 (Rioting, armed with deadly weapon), 149 (unlawful assembly), 323 (Punishment for voluntarily causing hurt), 307 (attempt to murder), 353 (Assault or criminal force to deter public servant from discharge of his duty), 332 (Voluntarily causing hurt to deter public servant from his duty), 188 (Disobedience to order duly promulgated by public servant), 427 (Mischief causing damage to the amount of fifty rupees), 342 (Punishment for wrongful confinement.) of the Indian Penal Code and section 27 (use of arms or ammunition) of the Arms Act.

The State’s allegations

The additional public prosecutor argued that the allegations were serious in nature and eight policemen have received injuries in the hurling of brick bats by the mob which included the 15 Adivasi protestors. He further contended that some circumstances where policemen are not seriously injured, should also not be taken lightly as it directly affects the “maintenance of law and order by the police and leniency will send a wrong message to the society that law breakers can take on the police with impunity.”

The Station House Officer at the Adhaura Police Station had recorded that on September 10, 2020, the members of an organisation Kaimur Mukti Morcha (KMM) had organised a two days sit-in protest in the proximity of Adhaura Block Head Office “without any permission in which they locked the block office and the exit of office of Forest Department illegally which was force opened with the help of police force.”

On September 11, some KMM members blocked the main and branch road, sat there and made provocative speeches on a loudspeaker. 400-500 men and women were participating in this sit-in demonstration. The proceedings were going on peacefully but, in the afternoon, the mob entered the block office and ransacked it which was prevented by the use of force. The Police alleged that the protestors locked the main gate of the block office which was broken open by the police later.

Thereafter, this alleged unruly crowd ran towards the office of Forest Department, entered the barrack and damaged the computer set, photocopy machine, table, chair, Almirah and many official documents, patrolling vehicle and the doors of the range office. The police and forest officers present tried to exhort them but to no avail, the prosecutor alleged. Further, the protesters were accused of setting these premises on fire and hurling brick bats on the police and forest officials. To disperse the mob, the prosecutor argued that the police resorted to use of ‘mild force’ and also fired in the air to defend themselves but the mob kept on hurling brick bats in which six police persons and two personnel of the forest department received injuries. Close to 30 people were identified as being part of the mob, including the 15 activists.

Court finds no evidence

The Additional Sessions Judge, however, found no merit in the State’s case. The court found that in the case diary, no specific role has been assigned to them nor it is mentioned in what manner they had participated in the occurrence. The order also read, “The period during which the petitioners could have been taken for interrogation in police remand is over and no TIP (test identification parade) of them has been conducted despite them being in custody for more than 15 days. In my opinion their continued custody will not serve any purpose. Further, from the material available on the record so far, no case for offence u/s 307, 333 of IPC is being made out against the petitioners even if they have been made accused by resorting to section 149 IPC as the injuries on the persons of the injured are simple and generally on non-vital part of the body. The case of these petitioners stands on similar footing to the accused who have already been granted regular bail by this court.”

The accused here are- Seepahi Singh, age 65 years from Goiyan, Dharmender Singh, age 25 years from Bardihya, Pappu Paswan, age 23 years from Jharpa, Lallan Singh Kharwa, age 45 years from Baraap, Kailash Singh, age 62 from Bardiha, Ram Shakal Singh Kharwar, age 52 years from Goiyan and Haricharan Singh, age 65 from Sarainar who were granted bail on October 16, as per the fact-finding report co-published by CJP, along with All India Union of Forest Working People and the Delhi Solidarity Group.

Fact-finding report contravenes the State’s accusations

CJP, SabrangIndia’s sister publication, has co-published a fact-finding report with All India Union of Forest Working People and the Delhi Solidarity Group on this incident. The teams of AIUFWP and DSG visited the Adhaura Block, Kaimur District of Bihar from September 23 to 27, 2020. The entire report may be read here:

What came to light was that some seven activists were not just fired upon and injured in the firing and lathi-charged but were also picked up by the police on trumped up charges. On October 16, all seven were released on bail. Two days later, in response to the ‘boycott election call’ given by the Kaimur Mukti Morcha (KMM), an organisation formed in the 1990s to democratically struggle for the land rights of the people of Kaimur, political heavyweights including the central minister of state for home, Nityanand Rai, air dropped into the far reaches of Kaimur, pleading with the protesters to lift the boycott call.

The protest had started on September 10, where thousands of Adivasis including women, men, youths and children from 108 villages of Adhaura Block mobilised themselves in front of the forest department office at Adhaura. They were demanding for the implementation of Forest Rights Act 2006 and Panchayats (Extension to Scheduled Areas) Act, 1996. They were also demanding to declare Kaimur as a Scheduled area as per the Fifth Schedule of the Constitution Panchayats, implement the Chota Nagpur Tenancy Act and abolish the proposed Kaimur Forest Wildlife Sanctuary and Tiger Reserve.

Since there was no response from the administration, their protest continued. When the delegated representatives went inside the forest department office to negotiate some dialogue, they were abused and man-handled by officials and later on, and quite suddenly, more police poured in, along with CRPF personnel, and unleased a brutal assault on the Adivasi demonstrators. The police opened fire and lathi-charged the protesters.

On September 12, Kaimur Mukti Morcha’s office in Adhaura was ransacked by the police. Dozens of activists affiliated with Kaimur Mukti Morcha were arrested on false charges by the police, but were granted bail on October 16.

CJP-AIUFWP’s complaint to NHRC

On September 30, CJP and AIUFWP had complained to the Human Rights Commission (NHRC) about this brutal incident. The complaint had pointed out how the protestors had asked prior permission for the protests, something that the State has alleged was not done.

A letter dated September 13, 2020 was addressed to Shri Manoj Jha, member of Rajya Sabha in India Parliament in relation to the firing at Adivasis at the protest in Kaimur, Bihar on September 11, 2020 by AIUFWP. The same letter mentions the aforementioned incidents and also that activists of Kaimur Mukti Morcha had circulated ten thousand pamphlets informing the villagers, Gram Sabha, Police and Forest Department about the protests of September 10 and 11, 2020 one month prior to fight for their rights. Another letter dated September 15, 2020 was addressed to the Director General of Police, Patna Bihar in relation to the firing at Kaimur Activists and forest dwellers by the AIUFWP on the same issues. Both letters attached the copy of the pamphlet that was circulated to inform people about the protests. The pamphlets call for unity against the fight for their rights to water, forest and land. The entire complaint may be read here:

The bail order dated July 28 may be read here:

Related:

CJP-AIUFWP move NHRC against firing on peaceful Adivasi protesters in Kaimur
Kaimur Firing: Fact-finding report released

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Detention order of accused already in custody must justify preventive detention: MP High Court

The High Court set aside detention order deeming that the same was passed by non-application of mind as the detention of the person already in custody did not apprehend his possible release, and did not state he must be detained in order to prevent him from indulging in prejudicial activities

31 Jul 2021

Detention OrderImage Courtesy:indialegallive.com

The Madhya Pradesh High Court declared the detention of a person accused of hoarding oxygen cylinders and selling them at higher price, to be invalid due to non-application of mind by the District Magistrate. The bench of Justice Prakash Shrivastava and Vishal Dhagat held that the detention order failed to take note of the fact that the petitioner was already in custody when the detention order was being passed, and it was required that his detention is justified with cogent materials that there is likelihood of his release and in view of his antecedent activities, he must be detained in order to prevent him from indulging in such prejudicial activities.

The petitioner, Rajeev Kumar Jain, challenged the order of his detention passed by the District Magistrate, Satna under section 3(1) of the Prevention of Black Marketing and Maintenance of Supplies of Essential Commodities Act, 1980, as also the state government’s order approving the same.

The petitioner was booked on the basis of the written complaint of Drug Inspector, Satna, alleging that the petitioner who is the Manager of M/s Vindhya Engineering Company had illegally stocked oxygen cylinders in his warehouse and was selling oxygen cylinders at higher price to the general public. The police submitted that the petitioner did not have a valid licence for possession of non-metal oxygen (medical grade) and oxygen cylinders were seized from his godown. Accordingly, he was detained and the Advisory Board confirmed his detention for 3 months until August 3.

The counsel for the petitioner argued that when the detention order was passed, the petitioner was already taken into custody, and he could have been eligible for release on regular bail had he not been detained. “The fact that the petitioner was in custody and his likelihood of release on bail has not been considered by the detaining authority, therefore, the order of detention suffers from nonapplication of mind,” the counsel submitted. He also contended that the petitioner’s representation was not considered by the state government and was not placed before the Advisory Board. He has also submitted that the petitioner has no criminal antecedents and all oxygen cylinders were empty and oxygen cylinders are not the essential commodities.

The state’s counsel argued that oxygen is covered in the Schedule 1 of the National List of Essential Medicines, 2015 and that the use of liquid oxygen was allowed by the Government only for medical purposes keeping in view the Covid 19 Pandemic. He also submitted that a complaint was received against the petitioner that he was selling the oxygen at an exorbitant rate, therefore, the raid was conducted and oxygen cylinders were seized and that only 20 LPG cylinders were empty, rest were all filled.

Court’s findings

The court observed that a minute perusal of the detention order as also the grounds of detention clearly reveal that there is no mention of the fact that the petitioner was in custody and that he had applied for bail or there is his possibility of being released on bail.

In Rameshwar Shaw Vs. District Magistrate, Burdwan and anr AIR 1964 SC 334, the petitioner was detained under Preventive Detention Act, 1950, while he was already in custody and he court held that in such a case the satisfaction that it is necessary to detain a person for the purpose of preventing him from acting in a prejudicial manner was clearly absent.

In Vijay Kumar Vs. State of Jammu & Kashmir and others, (1982)2 SCC 43, it has been held that if the detenu is already in jail for an alleged criminal offence when detention order was passed then the order must have clear mention of this fact and indicate that such detention was not sufficient to prevent the detenu from the prejudicial activities covered by the preventive detention law.

In Binod Singh Vs. District Magistrate, Dhanbad, Bihar and others, (1986)4 SCC 416 the court had held that if the prospects of the detenu’s imminent release are not considered then the continued detention is illegal on the ground of non-application of mind to the relevant factors.

The court inferred from these judgements and few other relevant judgements reiterating these observations, that “if the detenu is in custody at the time of passing the detention order then it is necessary for the Detaining Authority to mention this fact in the detention order and also consider the prospects of release of the detenu on bail and apprehension that the detenu would indulge in prejudicial activities in case of his release on bail”. The court took the view that if the detenu is in jail then the compelling necessity justifying the detention must be reflected to sustain the detention order.

The court found that the detention order suffered non-application of mind by the Detaining Authority as it had not stated its awareness of the fact the petitioner was already in custody, and also had not applied its mind to the possibility of the petitioner being released on bail.

The court thus allowed the petition and set aside the detention order and the state government order affirming the same.

The complete judgement may be read here:

Related:

PP must submit report giving specific reasons for detention under UAPA: J&K and Ladakh HC
Centre justifies withholding names of UAPA detainees citing "national interest"
No detention centres inside jail premises: Patna HC

Detention order of accused already in custody must justify preventive detention: MP High Court

The High Court set aside detention order deeming that the same was passed by non-application of mind as the detention of the person already in custody did not apprehend his possible release, and did not state he must be detained in order to prevent him from indulging in prejudicial activities

Detention OrderImage Courtesy:indialegallive.com

The Madhya Pradesh High Court declared the detention of a person accused of hoarding oxygen cylinders and selling them at higher price, to be invalid due to non-application of mind by the District Magistrate. The bench of Justice Prakash Shrivastava and Vishal Dhagat held that the detention order failed to take note of the fact that the petitioner was already in custody when the detention order was being passed, and it was required that his detention is justified with cogent materials that there is likelihood of his release and in view of his antecedent activities, he must be detained in order to prevent him from indulging in such prejudicial activities.

The petitioner, Rajeev Kumar Jain, challenged the order of his detention passed by the District Magistrate, Satna under section 3(1) of the Prevention of Black Marketing and Maintenance of Supplies of Essential Commodities Act, 1980, as also the state government’s order approving the same.

The petitioner was booked on the basis of the written complaint of Drug Inspector, Satna, alleging that the petitioner who is the Manager of M/s Vindhya Engineering Company had illegally stocked oxygen cylinders in his warehouse and was selling oxygen cylinders at higher price to the general public. The police submitted that the petitioner did not have a valid licence for possession of non-metal oxygen (medical grade) and oxygen cylinders were seized from his godown. Accordingly, he was detained and the Advisory Board confirmed his detention for 3 months until August 3.

The counsel for the petitioner argued that when the detention order was passed, the petitioner was already taken into custody, and he could have been eligible for release on regular bail had he not been detained. “The fact that the petitioner was in custody and his likelihood of release on bail has not been considered by the detaining authority, therefore, the order of detention suffers from nonapplication of mind,” the counsel submitted. He also contended that the petitioner’s representation was not considered by the state government and was not placed before the Advisory Board. He has also submitted that the petitioner has no criminal antecedents and all oxygen cylinders were empty and oxygen cylinders are not the essential commodities.

The state’s counsel argued that oxygen is covered in the Schedule 1 of the National List of Essential Medicines, 2015 and that the use of liquid oxygen was allowed by the Government only for medical purposes keeping in view the Covid 19 Pandemic. He also submitted that a complaint was received against the petitioner that he was selling the oxygen at an exorbitant rate, therefore, the raid was conducted and oxygen cylinders were seized and that only 20 LPG cylinders were empty, rest were all filled.

Court’s findings

The court observed that a minute perusal of the detention order as also the grounds of detention clearly reveal that there is no mention of the fact that the petitioner was in custody and that he had applied for bail or there is his possibility of being released on bail.

In Rameshwar Shaw Vs. District Magistrate, Burdwan and anr AIR 1964 SC 334, the petitioner was detained under Preventive Detention Act, 1950, while he was already in custody and he court held that in such a case the satisfaction that it is necessary to detain a person for the purpose of preventing him from acting in a prejudicial manner was clearly absent.

In Vijay Kumar Vs. State of Jammu & Kashmir and others, (1982)2 SCC 43, it has been held that if the detenu is already in jail for an alleged criminal offence when detention order was passed then the order must have clear mention of this fact and indicate that such detention was not sufficient to prevent the detenu from the prejudicial activities covered by the preventive detention law.

In Binod Singh Vs. District Magistrate, Dhanbad, Bihar and others, (1986)4 SCC 416 the court had held that if the prospects of the detenu’s imminent release are not considered then the continued detention is illegal on the ground of non-application of mind to the relevant factors.

The court inferred from these judgements and few other relevant judgements reiterating these observations, that “if the detenu is in custody at the time of passing the detention order then it is necessary for the Detaining Authority to mention this fact in the detention order and also consider the prospects of release of the detenu on bail and apprehension that the detenu would indulge in prejudicial activities in case of his release on bail”. The court took the view that if the detenu is in jail then the compelling necessity justifying the detention must be reflected to sustain the detention order.

The court found that the detention order suffered non-application of mind by the Detaining Authority as it had not stated its awareness of the fact the petitioner was already in custody, and also had not applied its mind to the possibility of the petitioner being released on bail.

The court thus allowed the petition and set aside the detention order and the state government order affirming the same.

The complete judgement may be read here:

Related:

PP must submit report giving specific reasons for detention under UAPA: J&K and Ladakh HC
Centre justifies withholding names of UAPA detainees citing "national interest"
No detention centres inside jail premises: Patna HC

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NIA court failed to take humanitarian approach: Bom HC grants temporary bail to Surendra Gadling

The court held that the judgement in the NIA Vs. Zahoor Ahmad Shah Watali case can be applied for regular bail, and Gadling’s circumstances needed a humanitarian approach, considering his mother had passed away. Even at this point NIA opposed the bail stating that the rituals can be carried out by other family members.

31 Jul 2021

Bombay HCImage Courtesy:barandbench.com

The Bombay High Court has granted temporary bail to Surendra Gadling, a lawyer and accused in the Bhima Koregaon case, on humanitarian grounds to complete rituals related to his deceased mother. Gadling’s mother died in August 2020 but his plea for bail was denied then by the Special NIA court and the last rites and other rituals could not be conducted due to the Covid-19 pandemic. 

The bench of Justices SS Shinde and NJ Jamadar held that the Special court had not taken a humanitarian approach towards Gadling’s plea for bail last year and had merely denied him bail on merits under section 43D of the Unlawful Activities (Prevention) Act (UAPA). Gadling has been in prison since June 2018 in the Bhima Koregaon case, the trial for which is still pending. He submitted to the high court that the family had decided to carry out the last rites and other rituals on his mother’s first death anniversary and hence, prayed that he be granted temporary bail.

Gadling had filed this appeal against the September 11, 2020 order by the special NIA court whereby temporary bail was denied to him to join his family members in performing the last rites of his mother. His bail request was rejected by the special court as the court was of the opinion that as his regular bail had been rejected “the prayer for temporary bail also deserved to be negatived as the considerations for grant of temporary bail and regular bail are one and the same”. Further, the fact that at the time of the consideration of the prayer for bail, three weeks’ time had already elapsed from the date of death, also became a ground for rejecting his temporary bail.

Hence, this appeal was filed by Gadling asserting that in view of the adverse circumstances, in which his mother died, funeral, rites, rituals and condolence meeting etc. could not be held and remained pending till date. Thus the family has decided to hold funeral rituals on the first death anniversary, i.e. August 15, 2021.

Arguments

This plea was also opposed by NIA while pointing to the seriousness of the allegations and the role attributed to the appellant. NIA also assailed the tenability of the prayer as the very reason for which the grant of temporary bail was sought, does not survive any more. NIA also contended that the new reasons cited by the appellant are untenable as the rites and rituals can be performed by any other family member.

Senior Advocate Indira Jaising appeared for Gadling and argued that the NIA Special Court approached the prayer of the appellant for release on temporary bail from a completely incorrect perspective. She contended that in the impugned order, the special court judge “committed a manifest error in importing the considerations which weigh in granting the bail on merits, to an application for grant of bail to participate in the funeral and last rites of the mother of the appellant”.

She further argued that since the appellant has explained in the affidavit filed before the high court “the onerous circumstances which prevented the family from performing the last rites and rituals of the deceased mother, the prayer of the appellant to release him on temporary bail to participate in the rituals proposed to be held on the first death anniversary of his mother, cannot be resisted”.

Jaising also cited cases where temporary bail was granted on humanitarian grounds to Sudha Bhardwaj, one of the many accused in the Bhima Koregaon case to attend her father’s final rites in 2019.

She also argued that the appellant was not a “flight risk” as the Pune Police had raided his home on April 17, 2018 and yet the appellant did not avoid to co-operate in the investigation and was arrested 40 days later during which period he did not make himself scarce.

Sandesh Patil appearing for NIA contended that the appellant cannot be permitted to urge a new ground for release on temporary bail.

Court’s findings

The court found NIA’s objection that the bail ought to be rejected since due to passage of time the cause does not survive, to be untenable on a humane consideration. The claim of the appellant that the rites, rituals and condolence meeting, which have been kept in abeyance, are to be performed and held on the first death anniversary of his mother, cannot be said to be impracticable or untenable, the court observed.

The court pointed out that the special court had denied the bail in the impugned order under section 43D of the UAPA and the issue was not approached from the perspective of humanitarian consideration.

“In our view, the NIA Court misdirected itself in importing the considerations which bear upon grant of regular bail to a prayer for release on humanitarian ground. Reliance placed on behalf of the respondent-NIA on the judgment in the case of National Investigation Agency Vs. Zahoor Ahmad Shah Watali, which governs the grant of a regular bail, therefore, does not seem well founded in the context of the consideration of the prayer for temporary bail to participate in the last rites/rituals of the deceased mother of the appellant,” the court observed.

The court held that the judgement in the Watali case governs regular bail and cannot be applied for a circumstance such as the appellant’s who wished to participate in the last rites and rituals of his mother. In Watali, the apex court had delved into the expression ‘prima facie true’ as part of section 43D (5) of the UAPA and held that ‘prima facie true’ would mean that the materials/evidence collated by the investigating agency must prevail until contradicted and overcome or disproved by other evidence, and on the face of it, revealed the complicity of such accused.

The court took into consideration the nature of the prayer and peculiar facts of the case and decided to take cautious cognizance of the developments in the intervening period.

“In the prevailing social construct, the first death anniversary of an immediate family member has an element of religious, personal and emotional significance. Admittedly, the appellant has not been able to participate in any of the rites/rituals in connection with the death of his mother. Viewed through this prism, we do not find the prayer of the appellant unjustifiable,” the court held.

The court also observed that Jaising’s argument about the appellant not being a flight risk, also carried substance and said, “Having regard to the situation in life of the appellant, as borne out by the record, we do not find that there is a reasonable ground to believe that the appellant may abscond.”

The court thus granted temporary bail to Gadling from August 13 to August 21 purely on humanitarian grounds, to attend the last rites/rituals and family condolence gathering of his deceased mother, on furnishing a PR bond in the sum of Rs. 50,000/-, with one or two sureties in the like amount. The court also directed that upon release Gadling must inform Nagpur police of his whereabouts and made it clear that no prayer of extension of bail beyond August 21 will be entertained on any count whatsoever.

Background of the arrest

Gadling was arrested 3 years ago on June 6, 2018, and was charged under various Indian Penal Code sections for hate speech and sections 13 (punishment for unlawful activities), 16 (punishment for terrorist act), 17 (punishment for raising funds for terrorist act), 18 (punishment for conspiracy), 18-B (punishment for recruiting people for terrorist act), 20 (punishment for being member of a terrorist gang) of the UAPA.

He along with 15 other activists have been arrested in this alleged conspiracy case. The 16th person to be arrested in this case was Father Stan Swamy, who passed away on July 5, awaiting medical bail. The NIA has accused them of plotting to overthrow the Government, and being active members of the banned CPI (Maoists).

recent report by American digital forensics firm Arsenal, has unearthed evidence that 14 key files mentioned in the chargesheet against lawyer-activist Surendra Gadling were planted on his hard drive using Netwire, the very same malware that was used to plant false evidence on a laptop belonging to Rona Wilson, another accused in the case.

The complete judgment may be read here:

Related:

Bhima Koregaon: Surendra Gadling gets interim bail to perform mother’s death anniversary rituals
Bail under UAPA: Does the new SC judgment offer a ray of hope?
Another bullet from Arsenal pierces through NIA’s Bhima Koregaon case!
Why was Dr. Anand Teltumbde denied bail by the NIA court?

NIA court failed to take humanitarian approach: Bom HC grants temporary bail to Surendra Gadling

The court held that the judgement in the NIA Vs. Zahoor Ahmad Shah Watali case can be applied for regular bail, and Gadling’s circumstances needed a humanitarian approach, considering his mother had passed away. Even at this point NIA opposed the bail stating that the rituals can be carried out by other family members.

Bombay HCImage Courtesy:barandbench.com

The Bombay High Court has granted temporary bail to Surendra Gadling, a lawyer and accused in the Bhima Koregaon case, on humanitarian grounds to complete rituals related to his deceased mother. Gadling’s mother died in August 2020 but his plea for bail was denied then by the Special NIA court and the last rites and other rituals could not be conducted due to the Covid-19 pandemic. 

The bench of Justices SS Shinde and NJ Jamadar held that the Special court had not taken a humanitarian approach towards Gadling’s plea for bail last year and had merely denied him bail on merits under section 43D of the Unlawful Activities (Prevention) Act (UAPA). Gadling has been in prison since June 2018 in the Bhima Koregaon case, the trial for which is still pending. He submitted to the high court that the family had decided to carry out the last rites and other rituals on his mother’s first death anniversary and hence, prayed that he be granted temporary bail.

Gadling had filed this appeal against the September 11, 2020 order by the special NIA court whereby temporary bail was denied to him to join his family members in performing the last rites of his mother. His bail request was rejected by the special court as the court was of the opinion that as his regular bail had been rejected “the prayer for temporary bail also deserved to be negatived as the considerations for grant of temporary bail and regular bail are one and the same”. Further, the fact that at the time of the consideration of the prayer for bail, three weeks’ time had already elapsed from the date of death, also became a ground for rejecting his temporary bail.

Hence, this appeal was filed by Gadling asserting that in view of the adverse circumstances, in which his mother died, funeral, rites, rituals and condolence meeting etc. could not be held and remained pending till date. Thus the family has decided to hold funeral rituals on the first death anniversary, i.e. August 15, 2021.

Arguments

This plea was also opposed by NIA while pointing to the seriousness of the allegations and the role attributed to the appellant. NIA also assailed the tenability of the prayer as the very reason for which the grant of temporary bail was sought, does not survive any more. NIA also contended that the new reasons cited by the appellant are untenable as the rites and rituals can be performed by any other family member.

Senior Advocate Indira Jaising appeared for Gadling and argued that the NIA Special Court approached the prayer of the appellant for release on temporary bail from a completely incorrect perspective. She contended that in the impugned order, the special court judge “committed a manifest error in importing the considerations which weigh in granting the bail on merits, to an application for grant of bail to participate in the funeral and last rites of the mother of the appellant”.

She further argued that since the appellant has explained in the affidavit filed before the high court “the onerous circumstances which prevented the family from performing the last rites and rituals of the deceased mother, the prayer of the appellant to release him on temporary bail to participate in the rituals proposed to be held on the first death anniversary of his mother, cannot be resisted”.

Jaising also cited cases where temporary bail was granted on humanitarian grounds to Sudha Bhardwaj, one of the many accused in the Bhima Koregaon case to attend her father’s final rites in 2019.

She also argued that the appellant was not a “flight risk” as the Pune Police had raided his home on April 17, 2018 and yet the appellant did not avoid to co-operate in the investigation and was arrested 40 days later during which period he did not make himself scarce.

Sandesh Patil appearing for NIA contended that the appellant cannot be permitted to urge a new ground for release on temporary bail.

Court’s findings

The court found NIA’s objection that the bail ought to be rejected since due to passage of time the cause does not survive, to be untenable on a humane consideration. The claim of the appellant that the rites, rituals and condolence meeting, which have been kept in abeyance, are to be performed and held on the first death anniversary of his mother, cannot be said to be impracticable or untenable, the court observed.

The court pointed out that the special court had denied the bail in the impugned order under section 43D of the UAPA and the issue was not approached from the perspective of humanitarian consideration.

“In our view, the NIA Court misdirected itself in importing the considerations which bear upon grant of regular bail to a prayer for release on humanitarian ground. Reliance placed on behalf of the respondent-NIA on the judgment in the case of National Investigation Agency Vs. Zahoor Ahmad Shah Watali, which governs the grant of a regular bail, therefore, does not seem well founded in the context of the consideration of the prayer for temporary bail to participate in the last rites/rituals of the deceased mother of the appellant,” the court observed.

The court held that the judgement in the Watali case governs regular bail and cannot be applied for a circumstance such as the appellant’s who wished to participate in the last rites and rituals of his mother. In Watali, the apex court had delved into the expression ‘prima facie true’ as part of section 43D (5) of the UAPA and held that ‘prima facie true’ would mean that the materials/evidence collated by the investigating agency must prevail until contradicted and overcome or disproved by other evidence, and on the face of it, revealed the complicity of such accused.

The court took into consideration the nature of the prayer and peculiar facts of the case and decided to take cautious cognizance of the developments in the intervening period.

“In the prevailing social construct, the first death anniversary of an immediate family member has an element of religious, personal and emotional significance. Admittedly, the appellant has not been able to participate in any of the rites/rituals in connection with the death of his mother. Viewed through this prism, we do not find the prayer of the appellant unjustifiable,” the court held.

The court also observed that Jaising’s argument about the appellant not being a flight risk, also carried substance and said, “Having regard to the situation in life of the appellant, as borne out by the record, we do not find that there is a reasonable ground to believe that the appellant may abscond.”

The court thus granted temporary bail to Gadling from August 13 to August 21 purely on humanitarian grounds, to attend the last rites/rituals and family condolence gathering of his deceased mother, on furnishing a PR bond in the sum of Rs. 50,000/-, with one or two sureties in the like amount. The court also directed that upon release Gadling must inform Nagpur police of his whereabouts and made it clear that no prayer of extension of bail beyond August 21 will be entertained on any count whatsoever.

Background of the arrest

Gadling was arrested 3 years ago on June 6, 2018, and was charged under various Indian Penal Code sections for hate speech and sections 13 (punishment for unlawful activities), 16 (punishment for terrorist act), 17 (punishment for raising funds for terrorist act), 18 (punishment for conspiracy), 18-B (punishment for recruiting people for terrorist act), 20 (punishment for being member of a terrorist gang) of the UAPA.

He along with 15 other activists have been arrested in this alleged conspiracy case. The 16th person to be arrested in this case was Father Stan Swamy, who passed away on July 5, awaiting medical bail. The NIA has accused them of plotting to overthrow the Government, and being active members of the banned CPI (Maoists).

recent report by American digital forensics firm Arsenal, has unearthed evidence that 14 key files mentioned in the chargesheet against lawyer-activist Surendra Gadling were planted on his hard drive using Netwire, the very same malware that was used to plant false evidence on a laptop belonging to Rona Wilson, another accused in the case.

The complete judgment may be read here:

Related:

Bhima Koregaon: Surendra Gadling gets interim bail to perform mother’s death anniversary rituals
Bail under UAPA: Does the new SC judgment offer a ray of hope?
Another bullet from Arsenal pierces through NIA’s Bhima Koregaon case!
Why was Dr. Anand Teltumbde denied bail by the NIA court?

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Gyan Vapi mosque and Kashi Vishwanath temple exchange land

Mosque authority's general secretary SM Yasin rubbishes rumours of handing over more land

30 Jul 2021

Varanasi temple corridorImage Courtesy:thecognate.com

Just three months after a Varanasi court permitted a survey of the Gyan Vapi Mosque – Kashi Vishwanath Temple complex by the Archaeological Survey of India (ASI), the committee that runs the mosque, has handed over a piece of land to the trust that runs the temple for a temple corridor project.

Speaking to SabrangIndia, S M Yasin, general secretary of the Anjuman Intizamiya Masjid (AIM) said, “The piece of land (plot no. 8276) that we have given the temple trust was originally owned by the UP Sunni Central Waqf Board and was one of the three plots under the AIM. It measures approximately 1,700 sq feet and is located at a distance of 15 meters from the mosque.”

He further explained, “We had originally handed over this plot on lease to the administration in 1993 to build a police booth after the Babri Masjid demolition. But now that booth has been demolished for the temple corridor project.” In exchange for this piece of land, the Shri Kashi Vishwanath Mandir Trust (KVMT) that runs the temple has handed over a piece of land measuring 1,000 sq ft to the mosque. “This was an amicable exchange. We accepted a smaller piece of land as it is a commercial property and has equal value,” he clarified.

Previously, Sunil Verma, who is the CEO of KVMT had also clarified the nature of the exchange to the Indian Express saying, “Because this land could not be bought as it is Waqf property, we exchanged it, which was done on the basis of value. The land handed over to the mosque was under the control of the Shri Kashi Vishwanath Special Area Development Board till now.”

However, SM Yasin rubbished media reports of another piece of land to be handed over to the temple. “The other two plots are the one on which the mosque stands (plot no. 9131) and one on which there is a common passageway (plot no. 8263),” Yasin told SabrangIndia. “A newspaper, without even speaking to us published a story saying that we are in talks with the temple trust to also give them plot no. 8263. This is not true,” clarified Yasin adding, “We wonder what their objective was for publishing this news item.”

Unverified news about a sensitive matter related to land upon which two religious structures of two different communities stand, can cause unnecessary panic and even communal conflagration.    

The land exchange is also significant given that a court is hearing the land dispute case between the Kashi Vishwanath temple and the Gyan Vapi mosque. The Allahabad High Court had reserved judgment in the matter earlier this year, and now Yasin hopes that the matter can be finally put to rest at the next hearing on August 2, 2021 when the judgment is expected.

Brief background of the dispute

It is alleged that Mughal emperor Aurangzeb had razed the temple in 1664 and the mosque was built on its ruins using the temple’s debris. Hostilities simmered over time and the dispute went to court when the title suit was filed in 1991. The two parties in this case were Kashi Vishwanath Mandir Trust (KVMT) and the Anjuman Intazamia Masjid (AIM). But back then, the Allahabad High Court had imposed a temporary stay on hearings in the case via an order dated October 13, 1998.

However, on February 4, 2020, a local court decided to commence hearings in the case stating that the HC’s order had not been extended within six months with a separate order, and that therefore the stay was deemed to have been vacated. In March 2020, the Allahabad High Court had stayed the Varanasi court’s order to commence hearing and ordered that the stay be maintained.

Multiple petitions filed

It may be recalled that on February 18, 2021, a suit seeking “restoration of performance of rituals at the principal seat of an Ancient Temple at the Gyan Vapi mosque area” was filed before a district court. The suit stated that every citizen has a fundamental right to perform pooja, worship and rituals according to the tenets of his religion within the ambit of Article 25 and any obstacle created before January 26, 1950 has become null and void by virtue of Article 13(1). The plea stated, “An idol worshipper cannot complete his pooja and gain spiritual advantages without having objects of worship. Any hindrance/ obstacle created in performance of pooja, is denial of right to religion guaranteed under Article 25 of the Constitution of India”. This suit has been filed by ten individuals acting as next friends of deities claimed to be existing in the mosque precincts including Maa Shringar Gauri, Lord Ganesh and Lord Shiva.

It is also noteworthy that on March 11, the court of Civil Judge (Senior Division) Kumud Lata Tripathi had issued notice to Central government, UP government, Varanasi District Magistrate, Senior Superintendent of Police, Varanasi, UP Muslim Personal Law Board, mosque management- Anjuman Intazamia and Board of trustees of Kashi Vishwanath Temple. The court had also fixed April 2 as the date for filing written statements and April 9 for framing of issues.

Meanwhile, on March 13, BJP leader Ashwini Upadhyay filed a petition before the Supreme Court challenging the constitutional validity of the Places of Worship (Special Provisions) Act 1991 as it bars remedies against illegal encroachment on the places of worship and pilgrimages prior to August 15, 1947.

According to Section 3 of the Places of Worship Act, “No person shall convert any place of worship of any religious denomination or any section thereof into a place of worship of a different section of the same religious denomination or of a different religious denomination or any section thereof.”

The petition by Upadhyay asserts that the law has created an arbitrary, irrational retrospective cut-off date and in the process has legalised the illegal acts of invaders who encroached upon religious institutions back in the day. The plea submits that the provisions of the law, particularly, section 2,3 and 4 take away rights of Hindus, Jains, Buddhists, and Sikhs to reclaim their places of worship through Courts. A bench of CJI SA Bode and Justice AS Bopanna issued notice to the Ministry of Home Affairs, Ministry of Law and the Ministry of Culture.

Then on March 18, the court of Civil Judge (Senior Division) Mahendra Kumar Singh admitted a new petition related to the case. The new plea demands that an area of the Adi Vishweshwar temple, that is currently deemed ‘occupied’ by the petitioner, be freed, and that the portion of the temple that was demolished on the instructions of Mughal emperor Aurangzeb, be rebuilt. The court then issued notice to the Union of India, Uttar Pradesh Government, the district administration, Varanasi SSP, UP Sunni Central Waqf Board, Anjuman Intezamia Masjid Committee and Kashi Vishwanath Mandir Trust making them respondents in the case.

Permission for ASI survey

On April 8, 2021, a Varanasi civil judge (senior division) Ashutosh Tiwari allowed ASI to conduct a survey, the cost of which is to be borne by the Uttar Pradesh government. The order was passed in connection with a plea filed by local lawyer VS Rastogi in December 2019, who demanded that the land upon which the mosque was constructed be returned to Hindus.

The permission for an ASI survey brought back memories of a similar survey that was carried out in connection with the Ram Janmabhoomi dispute. Speaking to SabrangIndia, AIM general secretary SM Yasin had at that time said, “The Allahabad High Court had given a stay order, meaning a hearing could not be conducted in the case. But the lower court still conducted hearings in the case. The judge also shot down our request for the case to be presented before the Waqf tribunal.”

“Between January 18 and March 12 arguments were on in the High Court in connection with the stay order case by all parties including the Sunni Central Board and the Anjuman Intazamia Masjid. The judgment was reserved and was expected after April 5, but there was a lockdown due to Covid,” he explained. “On April 6, we moved another application before the High Court requesting that the lower court be restrained from delivering any order in the case while the High Court judgement remained reserved and this application was to be heard on April 9. But the hearing could not take place, perhaps due to Covid. Meanwhile, the lower court went ahead and passed its order,” he said.

The Uttar Pradesh Sunni Central Waqf Board then moved an urgent petition before the Allahabad High Court against the order of the trial court. The Waqf Board’s counsel Puneet Kumar Gupta argued that the trial court passed the order illegally and without its jurisdiction as the matter is in the High Court and Justice Prakash Pandia reserved its order on March 15.

Another application has been moved by Anjuman Intezamia Masjid Varanasi contending that the Civil Judge acted in the "most arbitrary manner" while passing the order to allow the ASI for undertaking a survey at the disputed site and has acted against the spirit of judicial discipline. The application states that by passing orders despite the High Court reserving judgment in the case, the lower court acted “against the spirit of complete justice as well as the challenge to the entire suit proceeding and its authenticity.”

The next hearing of the case is scheduled to take place on August 2, 2021 at the Allahabad High Court.  

Related:

Gyan Vapi case: New petition admitted, notice issued
Gyan Vapi well becomes part of Kashi-Vishwanath temple
Gyan Vapi mosque case: Suit filed in Varanasi court for restoration of temple

 

Gyan Vapi mosque and Kashi Vishwanath temple exchange land

Mosque authority's general secretary SM Yasin rubbishes rumours of handing over more land

Varanasi temple corridorImage Courtesy:thecognate.com

Just three months after a Varanasi court permitted a survey of the Gyan Vapi Mosque – Kashi Vishwanath Temple complex by the Archaeological Survey of India (ASI), the committee that runs the mosque, has handed over a piece of land to the trust that runs the temple for a temple corridor project.

Speaking to SabrangIndia, S M Yasin, general secretary of the Anjuman Intizamiya Masjid (AIM) said, “The piece of land (plot no. 8276) that we have given the temple trust was originally owned by the UP Sunni Central Waqf Board and was one of the three plots under the AIM. It measures approximately 1,700 sq feet and is located at a distance of 15 meters from the mosque.”

He further explained, “We had originally handed over this plot on lease to the administration in 1993 to build a police booth after the Babri Masjid demolition. But now that booth has been demolished for the temple corridor project.” In exchange for this piece of land, the Shri Kashi Vishwanath Mandir Trust (KVMT) that runs the temple has handed over a piece of land measuring 1,000 sq ft to the mosque. “This was an amicable exchange. We accepted a smaller piece of land as it is a commercial property and has equal value,” he clarified.

Previously, Sunil Verma, who is the CEO of KVMT had also clarified the nature of the exchange to the Indian Express saying, “Because this land could not be bought as it is Waqf property, we exchanged it, which was done on the basis of value. The land handed over to the mosque was under the control of the Shri Kashi Vishwanath Special Area Development Board till now.”

However, SM Yasin rubbished media reports of another piece of land to be handed over to the temple. “The other two plots are the one on which the mosque stands (plot no. 9131) and one on which there is a common passageway (plot no. 8263),” Yasin told SabrangIndia. “A newspaper, without even speaking to us published a story saying that we are in talks with the temple trust to also give them plot no. 8263. This is not true,” clarified Yasin adding, “We wonder what their objective was for publishing this news item.”

Unverified news about a sensitive matter related to land upon which two religious structures of two different communities stand, can cause unnecessary panic and even communal conflagration.    

The land exchange is also significant given that a court is hearing the land dispute case between the Kashi Vishwanath temple and the Gyan Vapi mosque. The Allahabad High Court had reserved judgment in the matter earlier this year, and now Yasin hopes that the matter can be finally put to rest at the next hearing on August 2, 2021 when the judgment is expected.

Brief background of the dispute

It is alleged that Mughal emperor Aurangzeb had razed the temple in 1664 and the mosque was built on its ruins using the temple’s debris. Hostilities simmered over time and the dispute went to court when the title suit was filed in 1991. The two parties in this case were Kashi Vishwanath Mandir Trust (KVMT) and the Anjuman Intazamia Masjid (AIM). But back then, the Allahabad High Court had imposed a temporary stay on hearings in the case via an order dated October 13, 1998.

However, on February 4, 2020, a local court decided to commence hearings in the case stating that the HC’s order had not been extended within six months with a separate order, and that therefore the stay was deemed to have been vacated. In March 2020, the Allahabad High Court had stayed the Varanasi court’s order to commence hearing and ordered that the stay be maintained.

Multiple petitions filed

It may be recalled that on February 18, 2021, a suit seeking “restoration of performance of rituals at the principal seat of an Ancient Temple at the Gyan Vapi mosque area” was filed before a district court. The suit stated that every citizen has a fundamental right to perform pooja, worship and rituals according to the tenets of his religion within the ambit of Article 25 and any obstacle created before January 26, 1950 has become null and void by virtue of Article 13(1). The plea stated, “An idol worshipper cannot complete his pooja and gain spiritual advantages without having objects of worship. Any hindrance/ obstacle created in performance of pooja, is denial of right to religion guaranteed under Article 25 of the Constitution of India”. This suit has been filed by ten individuals acting as next friends of deities claimed to be existing in the mosque precincts including Maa Shringar Gauri, Lord Ganesh and Lord Shiva.

It is also noteworthy that on March 11, the court of Civil Judge (Senior Division) Kumud Lata Tripathi had issued notice to Central government, UP government, Varanasi District Magistrate, Senior Superintendent of Police, Varanasi, UP Muslim Personal Law Board, mosque management- Anjuman Intazamia and Board of trustees of Kashi Vishwanath Temple. The court had also fixed April 2 as the date for filing written statements and April 9 for framing of issues.

Meanwhile, on March 13, BJP leader Ashwini Upadhyay filed a petition before the Supreme Court challenging the constitutional validity of the Places of Worship (Special Provisions) Act 1991 as it bars remedies against illegal encroachment on the places of worship and pilgrimages prior to August 15, 1947.

According to Section 3 of the Places of Worship Act, “No person shall convert any place of worship of any religious denomination or any section thereof into a place of worship of a different section of the same religious denomination or of a different religious denomination or any section thereof.”

The petition by Upadhyay asserts that the law has created an arbitrary, irrational retrospective cut-off date and in the process has legalised the illegal acts of invaders who encroached upon religious institutions back in the day. The plea submits that the provisions of the law, particularly, section 2,3 and 4 take away rights of Hindus, Jains, Buddhists, and Sikhs to reclaim their places of worship through Courts. A bench of CJI SA Bode and Justice AS Bopanna issued notice to the Ministry of Home Affairs, Ministry of Law and the Ministry of Culture.

Then on March 18, the court of Civil Judge (Senior Division) Mahendra Kumar Singh admitted a new petition related to the case. The new plea demands that an area of the Adi Vishweshwar temple, that is currently deemed ‘occupied’ by the petitioner, be freed, and that the portion of the temple that was demolished on the instructions of Mughal emperor Aurangzeb, be rebuilt. The court then issued notice to the Union of India, Uttar Pradesh Government, the district administration, Varanasi SSP, UP Sunni Central Waqf Board, Anjuman Intezamia Masjid Committee and Kashi Vishwanath Mandir Trust making them respondents in the case.

Permission for ASI survey

On April 8, 2021, a Varanasi civil judge (senior division) Ashutosh Tiwari allowed ASI to conduct a survey, the cost of which is to be borne by the Uttar Pradesh government. The order was passed in connection with a plea filed by local lawyer VS Rastogi in December 2019, who demanded that the land upon which the mosque was constructed be returned to Hindus.

The permission for an ASI survey brought back memories of a similar survey that was carried out in connection with the Ram Janmabhoomi dispute. Speaking to SabrangIndia, AIM general secretary SM Yasin had at that time said, “The Allahabad High Court had given a stay order, meaning a hearing could not be conducted in the case. But the lower court still conducted hearings in the case. The judge also shot down our request for the case to be presented before the Waqf tribunal.”

“Between January 18 and March 12 arguments were on in the High Court in connection with the stay order case by all parties including the Sunni Central Board and the Anjuman Intazamia Masjid. The judgment was reserved and was expected after April 5, but there was a lockdown due to Covid,” he explained. “On April 6, we moved another application before the High Court requesting that the lower court be restrained from delivering any order in the case while the High Court judgement remained reserved and this application was to be heard on April 9. But the hearing could not take place, perhaps due to Covid. Meanwhile, the lower court went ahead and passed its order,” he said.

The Uttar Pradesh Sunni Central Waqf Board then moved an urgent petition before the Allahabad High Court against the order of the trial court. The Waqf Board’s counsel Puneet Kumar Gupta argued that the trial court passed the order illegally and without its jurisdiction as the matter is in the High Court and Justice Prakash Pandia reserved its order on March 15.

Another application has been moved by Anjuman Intezamia Masjid Varanasi contending that the Civil Judge acted in the "most arbitrary manner" while passing the order to allow the ASI for undertaking a survey at the disputed site and has acted against the spirit of judicial discipline. The application states that by passing orders despite the High Court reserving judgment in the case, the lower court acted “against the spirit of complete justice as well as the challenge to the entire suit proceeding and its authenticity.”

The next hearing of the case is scheduled to take place on August 2, 2021 at the Allahabad High Court.  

Related:

Gyan Vapi case: New petition admitted, notice issued
Gyan Vapi well becomes part of Kashi-Vishwanath temple
Gyan Vapi mosque case: Suit filed in Varanasi court for restoration of temple

 

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ISRO espionage case: Kerala HC grants protection from arrest to R.B Sreekumar

Sreekumar was the deputy director with Intelligence Bureau when the spy case surfaced, and was later deputed to assist the Kerala police in the matter

30 Jul 2021

ISRO caseImage Courtesy:indianexpress.com

Justice K. Haripal of the Kerala High Court has granted interim protection to former Gujarat DGP R B Sreekumar from arrest in a case being probed by CBI into an alleged conspiracy to implicate former ISRO scientist Nambi Narayanan in the 1994 espionage case. 

Sreekumar has been booked under sections 120B (punishment for criminal conspiracy), 167 (Public servant framing an incorrect document with intent to cause injury), 218 (Public servant framing incorrect record or writing with intent to save person from punishment or property from forfeiture), 330 (Voluntarily causing hurt to extort confession), 323 (Punishment for voluntarily causing hurt), 348 (Wrongful confinement to extort confession), 477A (falsification of accounts) and 506 (punishment for criminal intimidation) of the Indian Penal Code.

Justice Haripal ordered that Sreekumar shall not be arrested till August 2, and also tagged his plea with two other anticipatory bail applications pertaining to the same case, filed by two former Kerala Police officers and a former IB official, which had been posted for hearing on August 2 before Justice Ashok Menon.

The Gujarat High Court, on two occasions, had ordered the CBI to not arrest the 75 year old former Director General of Police till July 29 until he had obtained anticipatory bail from the Kerala court.

 

Background

This espionage case, goes back to 1994, wherein allegations of transfer of certain confidential documents on India’s space programme to foreign countries by two scientists and four others, including two Maldivian women, surfaced in the media. 

Nambi Narayanan, the then director of the cryogenic project at ISRO, was arrested along with the then ISRO Deputy Director D Sasikumaran by the Kerala Police. The former scientist, who was eventually given a clean chit by the CBI, had alleged that the Kerala police had “fabricated” the case and falsely accused him.

Nambi Naryanan reportedly accused the former DGP, Gujarat, of torturing him and falsifying records to implicate him. The CBI had named him in its FIR and charged Sreekumar, along with several other officials under the abovementioned IPC sections.

According to some media sources, the Additional Solicitor General (ASG) S.V. Raju, appearing for the CBI, argued before the Kerala High Court yesterday that the case was a serious matter involving national security and that Sreekumar must not be granted anticipatory bail. He contended that CBI strongly believed that Pakistan was involved in the case and that it was done to derail ISRO's programme to develop a cryogenic engine. ASG Raju stated that the scientists were arrested, humiliated and tortured.

He also referred to the Supreme Court-appointed committee which found that Sreekumar was allegedly responsible for cooking up false charges against the former ISRO scientists. But on July 26, the Supreme Court Bench of Justices AM Khanwilkar and Sanjiv Khanna have made it clear that the Central Bureau of Investigation should collect materials independently to proceed against the accused persons and cannot rely only on the Justice DK Jain committee report.

Furthermore, before the Kerala High Court, the advocate appearing for S. Sreekumar submitted that he was not even present when Nambi Narayan was interrogated. He submitted that Narayan had already become an accused in the espionage case before Sreekumar became privy to the matter.

The lawyer further apprised the court that the investigation was handled by a special investigation team and that Sreekumar was not part of the SIT and only assisted them on the request of the Kerala Police.

It is noteworthy that R.B Sreekumar, a 1971 batch IPS officer remains one of the key whistle-blowers blowing the lid of high-level state complicity behind the Gujarat carnage of 2002. He was at various times, Assistant Superintendent of Police, Deputy Inspector General, Deputy Director General DIG (Central Investigation Bureau), Joint Director (IG), and Additional Director General of Police. In 1999, he was even awarded the President’s medal for meritorious service.

(To be updated with Kerala High Court order)

Related:

Former DGP RB Sreekumar of Gujarat speaks to Communalism Combat-Newsclick about the fresh challenges he faces.
Days of Agony and Despair: former DGP, Gujarat, RB Sreekumar on How the Mob Ruled during the Gujarat Carnage of 2002

ISRO espionage case: Kerala HC grants protection from arrest to R.B Sreekumar

Sreekumar was the deputy director with Intelligence Bureau when the spy case surfaced, and was later deputed to assist the Kerala police in the matter

ISRO caseImage Courtesy:indianexpress.com

Justice K. Haripal of the Kerala High Court has granted interim protection to former Gujarat DGP R B Sreekumar from arrest in a case being probed by CBI into an alleged conspiracy to implicate former ISRO scientist Nambi Narayanan in the 1994 espionage case. 

Sreekumar has been booked under sections 120B (punishment for criminal conspiracy), 167 (Public servant framing an incorrect document with intent to cause injury), 218 (Public servant framing incorrect record or writing with intent to save person from punishment or property from forfeiture), 330 (Voluntarily causing hurt to extort confession), 323 (Punishment for voluntarily causing hurt), 348 (Wrongful confinement to extort confession), 477A (falsification of accounts) and 506 (punishment for criminal intimidation) of the Indian Penal Code.

Justice Haripal ordered that Sreekumar shall not be arrested till August 2, and also tagged his plea with two other anticipatory bail applications pertaining to the same case, filed by two former Kerala Police officers and a former IB official, which had been posted for hearing on August 2 before Justice Ashok Menon.

The Gujarat High Court, on two occasions, had ordered the CBI to not arrest the 75 year old former Director General of Police till July 29 until he had obtained anticipatory bail from the Kerala court.

 

Background

This espionage case, goes back to 1994, wherein allegations of transfer of certain confidential documents on India’s space programme to foreign countries by two scientists and four others, including two Maldivian women, surfaced in the media. 

Nambi Narayanan, the then director of the cryogenic project at ISRO, was arrested along with the then ISRO Deputy Director D Sasikumaran by the Kerala Police. The former scientist, who was eventually given a clean chit by the CBI, had alleged that the Kerala police had “fabricated” the case and falsely accused him.

Nambi Naryanan reportedly accused the former DGP, Gujarat, of torturing him and falsifying records to implicate him. The CBI had named him in its FIR and charged Sreekumar, along with several other officials under the abovementioned IPC sections.

According to some media sources, the Additional Solicitor General (ASG) S.V. Raju, appearing for the CBI, argued before the Kerala High Court yesterday that the case was a serious matter involving national security and that Sreekumar must not be granted anticipatory bail. He contended that CBI strongly believed that Pakistan was involved in the case and that it was done to derail ISRO's programme to develop a cryogenic engine. ASG Raju stated that the scientists were arrested, humiliated and tortured.

He also referred to the Supreme Court-appointed committee which found that Sreekumar was allegedly responsible for cooking up false charges against the former ISRO scientists. But on July 26, the Supreme Court Bench of Justices AM Khanwilkar and Sanjiv Khanna have made it clear that the Central Bureau of Investigation should collect materials independently to proceed against the accused persons and cannot rely only on the Justice DK Jain committee report.

Furthermore, before the Kerala High Court, the advocate appearing for S. Sreekumar submitted that he was not even present when Nambi Narayan was interrogated. He submitted that Narayan had already become an accused in the espionage case before Sreekumar became privy to the matter.

The lawyer further apprised the court that the investigation was handled by a special investigation team and that Sreekumar was not part of the SIT and only assisted them on the request of the Kerala Police.

It is noteworthy that R.B Sreekumar, a 1971 batch IPS officer remains one of the key whistle-blowers blowing the lid of high-level state complicity behind the Gujarat carnage of 2002. He was at various times, Assistant Superintendent of Police, Deputy Inspector General, Deputy Director General DIG (Central Investigation Bureau), Joint Director (IG), and Additional Director General of Police. In 1999, he was even awarded the President’s medal for meritorious service.

(To be updated with Kerala High Court order)

Related:

Former DGP RB Sreekumar of Gujarat speaks to Communalism Combat-Newsclick about the fresh challenges he faces.
Days of Agony and Despair: former DGP, Gujarat, RB Sreekumar on How the Mob Ruled during the Gujarat Carnage of 2002

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Bhima Koregaon: Surendra Gadling gets interim bail to perform mother’s death anniversary rituals

In September last year, Special NIA Court had rejected his emergency bail application to perform the final rites of his mother

30 Jul 2021

Bhima KoregaonImage Courtesy:livelaw.in

The Bombay High Court has granted interim bail to Advocate and Bhima Koregaon accused Surendra Gadling from August 13 to 21 to perform his mother’s death anniversary rituals. Today’s verdict also coincides with his birthday.

Gadling had filed an appeal before the Bombay High Court against a special National Investigation Agency (NIA) court order of September last year, which rejected his temporary bail plea to attend the final rites of his mother, who had died in August. After hearing the parties, the Bombay High Court had reserved its verdict on July 26.

Senior Advocate Indira Jaising, appearing for Gadling, reportedly argued before the High Court that since his family members were either hospitalised with Covid or under home isolation in August 2020, his mother’s funeral rites (cooling of ashes), rituals, and condolence meetings are pending. Gadling’s family has decided to perform these on her first death anniversary on August 15, 2021.

According to some media sources, the NIA opposed Surendra’s bail plea stating that the special court’s order was passed nearly ten months ago, and the reasons for bail sought at that time do not exist today. The agency referred to the Unlawful Activities (Prevention) Act offences he has been booked under, arguing that they are very serious in nature.

But Jaising submitted that Gadling could be granted interim bail on “humanitarian grounds”, and the same was valid under section 43D of UAPA. She also referred to co-accused Sudha Bharadwaj, who was granted interim bail to attend her father’s final rites in 2019. She also contended that Gadling had been in jail since 2018 and not being allowed to grieve the loss of his mother with his family members deeply affected his mental health. But the NIA vehemently opposed his plea at every stage.

The Indian Express quoted Advocate Sandesh Patil, representing NIA, saying, “The appellant (Surendra Gadling) says that he wants to join the family for the last rituals, but the cremation is over. He has an elder brother and eight other family members who can perform those rituals on his behalf and new reasons given by him seeking interim bail do not stand today. The appeal should be dismissed.”

Gadling was arrested 3 years ago on June 6, 2018, and was charged under various Indian Penal Code sections for hate speech and sections 13 (punishment for unlawful activities), 16 (punishment for terrorist act), 17 (punishment for raising funds for terrorist act), 18 (punishment for conspiracy), 18-B (punishment for recruiting people for terrorist act), 20 (punishment for being member of a terrorist gang) of the UAPA.

He along with 15 other activists have been arrested in this alleged conspiracy case. The 16th person to be arrested in this case was Father Stan Swamy, who passed away on July 5, awaiting medical bail. The NIA has accused them of plotting to overthrow the Government, and being active members of the banned CPI (Maoists).

recent report by American digital forensics firm Arsenal, has unearthed evidence that 14 key files mentioned in the chargesheet against lawyer-activist Surendra Gadling were planted on his hard drive using Netwire, the very same malware that was used to plant false evidence on a laptop belonging to Rona Wilson, another accused in the case.

(To be updated with order)

Related:

Another bullet from Arsenal pierces through NIA’s Bhima Koregaon case!
Why was Dr. Anand Teltumbde denied bail by the NIA court?
Bhima Koregaon case: Anand Teltumbde, Gautam Navalakha, Vernon Gonsalves seek interim bail
Jailed Father Stan Swamy dies ahead of his bail hearing

Bhima Koregaon: Surendra Gadling gets interim bail to perform mother’s death anniversary rituals

In September last year, Special NIA Court had rejected his emergency bail application to perform the final rites of his mother

Bhima KoregaonImage Courtesy:livelaw.in

The Bombay High Court has granted interim bail to Advocate and Bhima Koregaon accused Surendra Gadling from August 13 to 21 to perform his mother’s death anniversary rituals. Today’s verdict also coincides with his birthday.

Gadling had filed an appeal before the Bombay High Court against a special National Investigation Agency (NIA) court order of September last year, which rejected his temporary bail plea to attend the final rites of his mother, who had died in August. After hearing the parties, the Bombay High Court had reserved its verdict on July 26.

Senior Advocate Indira Jaising, appearing for Gadling, reportedly argued before the High Court that since his family members were either hospitalised with Covid or under home isolation in August 2020, his mother’s funeral rites (cooling of ashes), rituals, and condolence meetings are pending. Gadling’s family has decided to perform these on her first death anniversary on August 15, 2021.

According to some media sources, the NIA opposed Surendra’s bail plea stating that the special court’s order was passed nearly ten months ago, and the reasons for bail sought at that time do not exist today. The agency referred to the Unlawful Activities (Prevention) Act offences he has been booked under, arguing that they are very serious in nature.

But Jaising submitted that Gadling could be granted interim bail on “humanitarian grounds”, and the same was valid under section 43D of UAPA. She also referred to co-accused Sudha Bharadwaj, who was granted interim bail to attend her father’s final rites in 2019. She also contended that Gadling had been in jail since 2018 and not being allowed to grieve the loss of his mother with his family members deeply affected his mental health. But the NIA vehemently opposed his plea at every stage.

The Indian Express quoted Advocate Sandesh Patil, representing NIA, saying, “The appellant (Surendra Gadling) says that he wants to join the family for the last rituals, but the cremation is over. He has an elder brother and eight other family members who can perform those rituals on his behalf and new reasons given by him seeking interim bail do not stand today. The appeal should be dismissed.”

Gadling was arrested 3 years ago on June 6, 2018, and was charged under various Indian Penal Code sections for hate speech and sections 13 (punishment for unlawful activities), 16 (punishment for terrorist act), 17 (punishment for raising funds for terrorist act), 18 (punishment for conspiracy), 18-B (punishment for recruiting people for terrorist act), 20 (punishment for being member of a terrorist gang) of the UAPA.

He along with 15 other activists have been arrested in this alleged conspiracy case. The 16th person to be arrested in this case was Father Stan Swamy, who passed away on July 5, awaiting medical bail. The NIA has accused them of plotting to overthrow the Government, and being active members of the banned CPI (Maoists).

recent report by American digital forensics firm Arsenal, has unearthed evidence that 14 key files mentioned in the chargesheet against lawyer-activist Surendra Gadling were planted on his hard drive using Netwire, the very same malware that was used to plant false evidence on a laptop belonging to Rona Wilson, another accused in the case.

(To be updated with order)

Related:

Another bullet from Arsenal pierces through NIA’s Bhima Koregaon case!
Why was Dr. Anand Teltumbde denied bail by the NIA court?
Bhima Koregaon case: Anand Teltumbde, Gautam Navalakha, Vernon Gonsalves seek interim bail
Jailed Father Stan Swamy dies ahead of his bail hearing

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