Security Breach: HC Directs Not To Deploy Punjab Police For Security Of Judge Known For Exposing "Large- Scale Lapses Of Punjab Police"

The Punjab & Haryana High Court has directed not to deploy Punjab Police for security of a sitting HC judge who exposed "large-scale lapses on the part of investigating agencies" of Punjab and whose security was compromised in a recent incident.

The division bench of Chief Justice Sheel Nagu and Justice Anil Kshetarpal has ordered deployment of officers of a "neutral" police force and not Punjab Police, for securing the movement of the Judge. It observed,

" It is well known that large-scale lapses on the part of investigating agencies in the State of Punjab were exposed by various judicial orders passed by the learned Judge since last 12/24 months. This Court, thus, deems it appropriate that the security personnel dealing with security of the learned Judge ought not to be members of Punjab police force, but either of UT Administration or of State of Haryana. Deployment of a neutral police force but not of State of Punjab for securing the movement of the learned Judge shall certainly assuage the feeling of insecurity perceived by the learned Judge. "

The development comes in light of a September 22 incident where a man pulled out the gun of Judge's Personal Security Officer (PSO) at Golden Temple and ran towards entrance of the Golden Temple "with possible intent to harm the Judge". His advancement was thwarted by the PSO and in the scuffle that followed, the miscreant shot himself in the head.

The bench thus directed, "the personnel manning security of the learned Judge within and outside Chandigarh shall immediately be changed from Punjab Police to police personnel belonging to either UT Administration or the State of Haryana..."

In pursuance of a previous order, the Punjab Government had submitted a status report with regard to the nature and stage of investigation being conducted into the incident.

UT administration, Chandigarh also apprised the Court on enhancement of security of the Judge.

"From the stand taken by the State of Punjab with regard to progress in investigation, this Court finds that the same though lies within the exclusive domain of the State, but the threat perception has to be assessed as perceived by the learned Judge," the Court observed.

On investigation, the Court sought suggestion from UT Administration and Haryana Government for appropriate investigating officers not below the rank of Superintendent of Police of a district to conduct investigation in the incident.

The Court also impleaded Union of India through Secretary, Home Affairs and State of Haryana through its Home Secretary as parties to the petition.

ASG Satya Pal Jain assured the Court that all possible assistance within "four corners of law" will be provided.

The matter is listed for October 01, for further consideration.

Notary's Omission To Make Entry In Notarial Register Misconduct : Supreme Court

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In a case where a Notary was alleged to have notarized affidavit of the petitioner in his absence, and the petitioner denied filing the special leave petition, the Supreme Court recently observed that an act or omission on part of a Notary in violation of Rule 11 of the Notaries Rules 1956 would amount to misconduct, and such Notary would be unfit to be a Notary.

"...the Notaries Act 1952 regulates the profession of Notaries. The functions and duties of Notaries are enumerated in Section 8 thereof. The transaction of business by a Notary is contained in Rule 11 of the Notaries Rules 1956. Any acts or omissions thereof, on the part of the Notary would tantamount to misconduct, and the person complained against would be unfit to be a Notary", said the bench of Justices Bela M Trivedi and Satish Chandra Sharma.

For context, Rule 11 of the Notaries Rules stipulates how a Notary shall conduct his business. As per Rule 11(2), every notary shall maintain a Notarial Register in the prescribed Form.

In the present case, the concerned Notary did not make an entry regarding attestation of the petitioner's affidavit in the Notarial Register. The same was sought to be explained as follows:

"That the Deponent has attested the Affidavit dated 19.04.2024 of one Bhagwan Singh only after identifying the signature of Bhagwan Singh by an Advocate of this Hon'ble Court...However, the attested Affidavit was taken away by the Lawyer...and he did not turn up again, and that is why, the Deponent was not able to make entry in the Notarial Register.” 

Deeming it a misconduct on the Notary's part, the Court directed that the Registry send a copy of its order to the Bar Council of India and to the Government of India for appropriate action.

The Court was dealing with the case where the petitioner denied filing the SLP and claimed ignorance of advocates who represented him. The respondents had told the Court that the order impugned in the SLP put an end to criminal proceedings against the only witness in the 2002 Nitish Katara Murder case, and the SLP was filed in an attempt to continue the false case against him (without the petitioner's knowledge).

While the matter was being heard, the concerned Notary entered appearance and admitted the mistake of attesting the petitioner's affidavit in his absence, based on identification of his signatures by an advocate. Represented by Senior Advocate Sanjay Hegde, the Notary also tendered an apology to the Court.

On the day when the orders were reserved in the case, Hegde urged that the bench consider that there was no malice involved on the Notary's part. However, Justice Trivedi shot back that there was "clear dereliction of duty".

After going through the material, the Court observed in the judgment that the affidavit of the petitioner was notarized by the concerned Notary without the former being present before him and the same was submitted before the Court along with the SLP memo. Accordingly, it directed the Registry to forward a copy of the order to BCI and Govt. of India for appropriate action.

Other reports about the judgment can be read here.

Storage Of Child Pornography Without Deletion Or Reporting Indicates Intention To Transmit, Constitutes POCSO Act Offence :Supreme Court

Watching, Storing Child Pornography Is an Offence Under POCSO Act: Supreme Court

Setting aside a Madras High Court judgment which held that mere storage of child pornographic material without any intention to transmit the same was not an offence under the Protection of Children from Sexual Offences Act (POCSO Act), the Supreme Court on Monday (September 23) held that the storage of such material, without deleting or without reporting the same, would indicate an intention to transmit.

Observing that the High Court committed an "egregious error" in quashing the criminal proceedings, the  bench comprising CJI DY Chandrachud and Justice JB Pardiwala set aside the decision set it aside and restored the criminal prosecution.

Intention must be gathered from the circumstances

Justice Pardiwala read out the conclusions of the judgment as follows "

Section 15 of the POCSO provides for three distinct offences that penalise either the storage or possession of any child pornographic material when done with any intention to transmit, diplay etc as specified in sub-sections of the Section.

It is in the nature and form of an inchoate offence, which penalises the mere storage or possession of any pornographic material involving a child when done with the specific intent prescribed thereunder without requiring any actual transmission, dissemination etc.

Sub-section (1) of Section 15 penalises the failure to delete, destroy or report any child pornographic material that has been found to be stored or in possession with any person with an intention to share or transmit the same. The mens rea for the intention required under this provision is to be gathered from the actus reas itself, that is it has to be determined from the manner in which such material is stored or possessed and the circumstances under which the same was not deleted, destroyed or reported. To constitute an offence under this provision, the circumstance must sufficiently indicate the indication on the part of the accused to share or transmit such material.

As regards sub-section (2) of Section 15, the Court noted that to constitute an offence under section 15(2) of POCSO, apart from mere storage, there must be something more to show that the actual transmission or distribution of such material or facilitation etc. The mens rea for this offence has to be found from the manner in which the pornographic material was found to be stored or in possession.

Regarding Section 15(3), the Court noted that it penalised storage of child pornographic material for commercial purposes. To establish an offence under this provision, besides the storage, there must be some additional material to indicate that such storage was done with an intent to derive an economic gain or benefit. To constitute an offence under this Section, there is no requirement to establish that such gain or benefit actually was realised.

The Court held that sub-sections (1), (2) and (3) of Section 15 are independent of each other. If a case is not falling within one sub-section, that does not mean that it does not fall within the entire Section 15.

The judgment authored by Justice Pardiwala contains various guidelines and suggestions regarding the enforcement of the POCSO Act.

The Court also suggested the Parliament to amend the term 'child pornography' with the term 'child sexual exploitative and abusive material' and requested the Union to bring an Ordinance to bring about the amendment. The Court has directed the Courts to not use the term 'child pornography'.

The decision comes in a plea filed by Just Rights for Children Alliance. The coalition of NGOs has raised concerns over the potential impact of such a ruling on child welfare. 

Citizens Have 'Right To Free Speech', Not State's Burden To Ensure That They Only Know Truth: Bombay HC On IT Amendment Rules

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Summary of Legal Proceedings on Rule 3(1)(b)(v)

• The validity of Rule 3(1)(b)(v) of the Rules of 2021, amended in 2023, was upheld.
  
• Concerns were raised about the vagueness of terms like "fake," "false," and "misleading."
  
• The Supreme Court emphasized that due diligence by intermediaries is reasonable.
  
• The rule does not infringe on constitutional rights as it targets offensive information, excluding political satire and criticism.
  
• The court noted that restrictions on speech must align with Article 19(2) of the Constitution.
  

What was the conclusion regarding the validity of Rule 3(1)(b)(v) of the Rules of 2021 as amended in 2023?

The conclusion regarding the validity of Rule 3(1)(b)(v) of the Rules of 2021 as amended in 2023 was that it was upheld and not liable to be struck down. The court found that the rule met the necessary legal standards and did not violate constitutional rights. However, there were differing opinions on its implications and potential vagueness.

Follow-up questions

What was the conclusion regarding the validity of Rule 3(1)(b)(v) of the Rules of 2021 as amended in 2023?

The conclusion regarding the validity of Rule 3(1)(b)(v) of the Rules of 2021 as amended in 2023 was that it was upheld and not liable to be struck down. The court found that the rule met the necessary legal standards and did not violate constitutional rights. However, there were differing opinions on its implications and potential vagueness.

The Bombay High Court's 'Tie-Breaker' Judge Justice Atul Chandurkar, while opining that the amendments to the Information and Technology Rules, 2021 are 'unconstitutional' held that the citizens only have the 'right to free speech and expression' but not a 'right to truth' and thus the State cannot claim to have a responsibility to ensure that citizens know only 'truth' and not 'fake or false information.'

Justice Chandurkar has given his opinion on a bunch of petitions led by comedian Kunal Kamra, challenging the amendments to the IT Rules, 2021, more specifically Rule 3(1)(b)(v), based on which the Central government could establish 'Fact Check Units' (FCUs) to identify "fake and misleading" information about its business on social media platforms.

The petitions were initially heard by a division bench of Justices Gautam Patel and Dr Neela Gokhale, however, the two judges, delivered a split verdict in January this year, due to which Justice Chandurkar was assigned the matter for a third opinion so that the issue could be finally decided.

In his opinion, pronounced on Friday, Justice Chandurkar agreed with the views of Justice Patel on almost all the points and differed with what Justice Gokhale held. The 'tie-breaker' judge held that the amendment was ultra vires to Articles 14 (right to equality) and 19(1)(a) (right to free speech).

"I would agree with the view of Patel, J that under the right to freedom of speech and expression, there is no further 'right to the truth' nor is it the responsibility of the State to ensure that the citizens are entitled only to 'information' that was not fake or false or misleading as identified by the FCU. Rule 3(1)(b)(v) seeks to restrict the fundamental right guaranteed under Article 19(1)(a) by seeking to place restrictions that are not in consonance with Article 19(2) of the Constitution," Justice Chandurkar observed in his order.

Amendment infringes right to equality on digital platforms

Further while holding that the amendment is against the 'right to profession' the judge noted that a piece of information that is not subjected to the rigors of Rule 3(1)(b)(v) of the Rules of 2021 when in the print media but is subjected to those rigors when in the digital form.

"There is no basis or rationale for undertaking the exercise of determining whether any information in relation to the business of the Central Government is either fake or false or misleading when in the digital form and not undertaking a similar exercise when that very information is in the print form," the judge held.

The judge while referring to the very aspect, held that the amendment would also infringe the right to equality of digital platforms as the amendment would not apply to information put on digital media but not when published in a newspaper.

In his 99-page judgment, Justice Chandurkar criticised the Central government for attempting to become an 'arbiter' in its own case.

The FCU, the judge noted, is to decide whether any information with regard to the business of the Central government is either fake or false or misleading and the Central government is the aggrieved party, the FCU constituted by it is required to decide which piece of information with regard to its business, is either fake or false or misleading.

"Taking into consideration all aspects including that the basis on whinse is the arbiter in its own cause. By contending that the decision of the FCU can be subjected to challenge before a constitutional Court, the same cannot be treated as an adequate safeguard and it would not be of much consequence. I am therefore inclined to agree with the view of Patel J that as the Central Government itself would constitute the FCU, it is an arbiter in its own cause," the judge observed.

No guidelines to be followed by FCUs

The judge further noted that the FCUs will identify information which is fake or false with regard to the business of only the Central government and not of the State governments.

Moreover, the judge found that there were no guidelines to be followed by the FCUs to ascertain or declare certain pieces of information as false or fake news.

"Absence of sufficient safeguards against the abuse of the Rules that tend to interfere with the fundamental rights are shown to be absent. Having found that the validity of the impugned Rule cannot be saved by reading it down as urged, the contention raised on behalf of the Union of India of having adopted the least restrictive mode to prevent the spread of 'fake or false or misleading information' in that regard cannot be accepted. I therefore find that even on the ground of proportionality, the impugned Rule cannot be sustained as observed by Patel J," the bench opined.

With these observations, Justice Chandurkar agreed with Justice Patel on almost all the issues before him and has now ordered the instant matter to be kept before a division bench so that the matter can be disposed of with a new and fresh opinion on the issues involved.

Motor Accident Claims - Contributory Negligence Of Driver Can't Be Vicariously Attached To Passengers Of Vehicle: Supreme Court

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The Supreme Court observed that the legal heirs of the deceased who died in the road accident can't be denied their rightful compensation on the ground that the driver of the car contributed to the accident.

Referring to a precedent, the Court observed, "The contributory negligence on the part of a driver of the vehicle involved in the accident cannot be vicariously attached to the passengers to reduce the compensation awarded to the passengers or their legal heirs as the case may be."

As regards the present case, the Court said that no fault could be attributed to the driver of the car while colliding with the offending truck which was parked in the middle of the road without any parking lights being switched on and without any markers or indicators being placed around the stationary vehicle to warn the incoming vehicular traffic. 

In the present case, the appellant and four other persons (including her husband) were travelling in a four-wheeler that collided with an offending truck that was abandonly lying on the road without any whereabouts. Resultantly, except the appellant, other passengers died on the spot leading to the filing of a claim petitions under the Motor Vehicle Act, 1988 by the appellant and legal heirs of other deceased passengers. 

The Motor Accident Claims Tribunal (“MACT”) directed the owner of the offending truck and its insurer to jointly indemnify the appellants, however, reduced the compensation by 50% on the ground that the driver of the car had contributed to the accident because he failed to take appropriate preventive measures to avoid collision with the offending truck which was parked in the middle of the road. 

Being aggrieved by the High Court's decision to uphold the MACT's finding of a 50% reduction in the compensation awarded, the appellants preferred the appeal before the Supreme Court. 

Setting aside the concurrent findings of the High Court and MACT, the bench comprising Justices PS Narasimha and Sandeep Mehta observed that it would not be justifiable to reduce the compensation based on the fact that the driver contributed to the accident. 

Upon placing reliance on the case of Union of India v. United India Insurance Co. Ltd. 1997),( the Court said that “the contributory negligence on the part of a driver of the vehicle involved in the accident cannot be vicariously attached to the passengers to reduce the compensation awarded to the passengers or their legal heirs as the case may be.” 

Moreover, the Court noted that the below courts committed an error upon holding that the driver of the vehicle involved in an accident had contributed to the accident. The court said that since the offending vehicle was parked on the road without taking due care and caution where there was not even the slightest possibility that the road would be illuminated by moonlight at the time of the accident therefore it would be improper to hold the deceased driver guilty for contributory negligence. 

“it is established beyond the pale of doubt that the offending truck was parked in the middle of the road without any parking lights being switched on and without any markers or indicators being placed around the stationary vehicle so as to warn the incoming vehicular traffic. This omission by the person in control of the said truck was in clear violation of law. The accident took place on a highway where the permissible speed limits are fairly high. In such a situation, it would be imprudent to hold that the driver of a vehicle, travelling through the highway in the dead of the night in pitch dark conditions, would be able to make out a stationary vehicle lying in the middle of the road within a reasonable distance so as to apply the brakes and avoid the collision.”, the judgment authored by Justice Sandeep Mehta said. 

According to the court, the courts below erred in concluding that it is a case of contributory negligence because to establish contributory negligence, some act or omission that materially contributed to the accident or damage should be attributed to the person against whom it is alleged. 

“Thus, the conclusion drawn by the Courts below that the driver of the car could have averted the accident by applying the brakes and hence, he was equally negligent and contributed to the accident on the application of principle of last opportunity is ex-facie perverse and cannot be sustained. Hence, it is a fit case warranting exercise of this Court's powers under Article 136 of the Constitution of India to interfere with the concurrent finding of facts.”, the court said. 

Accordingly, the court allowed the appeal and ordered as follows: 

“As a consequence, the deduction of 50% of compensation awarded to the appellant-claimants on account of contributory negligence, as directed by the Tribunal and affirmed by the High Court, cannot be sustained. The finding recorded by the Courts below on this issue is reversed as being perverse and unsustainable in the facts as well as in law. Resultantly, it is directed that there shall be no deduction from the compensation payable to the appellant-claimants who shall be entitled to the full compensation as assessed by the Tribunal and modified by the High Court by the impugned judgment.”

Anticipatory bail in NDPS matter? …In the NDPS matter, the grant of anticipatory bail is unheard of." SC

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The Petitioner requests bail based on the co-accused receiving anticipatory bail.  The court issues a notice that is returnable in four weeks. The state was directed to consider filing for cancellation of co-accused bail.

The Supreme Court today expressed surprise at the grant of anticipatory bail in a case under the Narcotic Drugs and Psychotropic Substances Act,1985 and asked the State of West Bengal to consider filing applications seeking the cancellation of pre-arrest bail granted to the accused.

The bench of Justices B.R. Gavai, Aravind Kumar and K.V. Viswanathan directed: "Grant of anticipatory bail in an NDPS matter is a severe issue. We therefore direct the State to consider if it proposes to apply for the cancellation of Anticipatory Bail granted to the accused.”

The accused sought bail for the accused based on parity with the co-accused who got bail. He apprised the bench that apart from the 4 accused persons who have been granted anticipatory bail, 1 other accused has been granted regular bail by the Calcutta High Court. He also informed the Court that the accused person has been in custody for approximately 11 months now.

On being told that anticipatory bail was granted in NDPS matter, Justice Gavai remarked: “Anticipatory bail in NDPS matter? …Who are the other persons who have been granted anticipatory bail? In the NDPS matter, the grant of anticipatory bail is unheard of."

In this case, the narcotics substances were allegedly found in the possession of the accused person in the scooty and he had named the other co-accused in his deposition, who were granted anticipatory bail.

SC seeks explanation from Notary & Registry over alleged attestation of fake signatures and inclusion of names of non-appeared advocates:Supreme Court

In a criminal special leave petition before the Division Bench of Bela M. Trivedi and Satish Chandra Sharma, JJ. it was pointed out by the petitioner, present in person before the Court that he did not know either of the advocates/ AORs who were representing him and that he came to know about the present proceedings filed in his name only when the Police Station of his area came to serve Court notice upon him. The Division Bench of Bela M. Trivedi and Satish Chandra Sharma, JJ. expressed utter shock in the matter, which disclosed notarisation of fake signatures, the inclusion of names of advocates/AORs who did not appear and allegations of conspiracy against a witness in a famous case. The Bench directed the Notary to file an affidavit explaining the procedure of notarizing any document and also explaining why he attested the signatures.

The Court also sought an explanation from the Registry as to on what basis and why the names of so many Advocates were shown in the Order Sheets who did not appear as AOR nor as arguing/ Senior Counsel.

Genesis

The present petitioner/ minor’s father had lodged an FIR on 28-06-2013 alleging that his minor daughter aged 12 years was kidnapped by her cousin brother A, A’s sister, A’s son-in-law and A’s brother. Subsequently, a criminal petition was filed before the High Court and vide order dated 31-07-2013, the arrest of the accused persons therein, was stayed. Later, the said writ petition was dismissed as infructuous, when chargesheet was filed against A for kidnapping a minor girl. The minor’s statement under Section 161 of the Code of Criminal Procedure, 1973 (‘CrPC’) disclosed that she was in love with A, so they got married him in a temple and ran away to Ghaziabad. There she met ‘B’, who was accused of raping her.

An application was moved under Section 482 by ‘B’ for quashing the summoning and cognizance order of the Trial Court for offences under Sections 363, 366, 376 of the Penal Code, 1860 (‘IPC’). The High Court noted that no date and time of the alleged rape was disclosed by the girl. The High Court on consideration of the all material and circumstances allowed the application of B and quashed and set aside the impugned orders.

SLP before Court

The Advocates in question had stated that vakalatnama signed by the petitioner was received by him from an Advocate practicing in the Allahabad High Court. To this, the petitioner’s reply was that he did not either of these Advocates. In view of the above submissions, the Court directed the Registry to issue notice to the Advocate practicing in Allahabad High Court. The Advocate from High Court submitted that he received the papers of the case along with signed vakalatnama from his client/ A, who is son-in-law of the present petitioner. It was stated that this Advocate appeared before the High Court in the recall application filed on behalf of petitioner’s daughter/ wife of A, in which it was prayed to recall the order dated 16-12-2019 passed by the High Court in the Application under Section 482. However, when the said recall application was dismissed, A wanted to file an SLP before the Court, hence, he was asked to get the vakalatnama signed from either his wife or father-in-law/ petitioner. Thereafter he had handed over all the papers along with signed vakalatnama to the Advocate practicing in the Court.

At this stage, the petitioner submitted that since his daughter had eloped and married A in 2013 he has not met them, and therefore, he could not have signed the vakalatnama in question or the papers of the SLP.

On one of the previous hearings, the Court noted the submission of the AOR and Advocate who prepared the Memo of SLP and got it attested through a Notary who sits in front of the UCO Bank, Supreme Court Compound. Hence, the Court directed this Notary, to remain present before the Court for being involved in notarizing and attesting the papers and signatures of the petitioner, even though he was not personally present before him. The Court had also directed all the advocates concerned in the matter to remain present before the Court.

Order

The Court directed the Notary to file an affidavit explaining the procedure of notarizing any document and explaining why and under what circumstances the petitioner's affidavit in the present case was attested by him in his absence. Further, the Court had directed A to file an affidavit explaining the whole incident, the circumstances he had met his father-in-law/ present petitioner, and the chronology of dates and events when he met his father-in-law.

The Court also sought an explanation from the Registry as to on what basis and why the names of so many Advocates were shown in the Order Sheets/Record of Proceedings though, they would be neither appearing as an AOR nor as arguing/ Senior Counsel in the order dated 09-08-2024, who are also advocates in order dated 10-06-2024 in SLP(Crl.) No.7893/2024 which was filed against Delhi High Court’s decision, wherein, the present respondent ‘B’ was the only witness. The counsel for ‘B’ submitted that B had deposed against the convicted- petitioner in SLP(Crl.) No.7893/2024 and for that reason a false case was sought to be made out against the B in the present proceedings.