Guidelines for Recording of Evidence of Vulnerable
Witnesses, 2024
Objectives and Purpose
· Enable vulnerable witnesses to depose freely in a safe and secure environment
· Minimize harm or secondary victimization during participation in the justice system
· Ensure effective implementation of rights for all parties - accused's right to fair trial, victim's right to participate effectively, and vulnerable witness protection
34. Furthermore, as a sequitur to the above, this court issues the following directions:
34.1. It is directed that the Registry must carefully scrutinise all filings relating to sexual offences, to ensure that the anonymity and confidentiality of the prosecutrix/victim/survivor is strictly maintained;
34.2. To be more specific, in order to maintain confidentiality as aforesaid, the following must be done :
34.2.1. The name, parentage, address, social media credentials and photographs of the prosecutrix/victim/survivor must not be disclosed in the filings made in court, including in the memo of parties;
34.2.2. Though, if the foregoing direction is scrupulously followed, the identifying particulars would not appear in the cause-list, by way of abundant caution, the Registry must ensure that such particulars do not get reflected in the cause-list of the court in any manner;
34.2.3. The name, parentage and address of family members of the prosecutrix/victim/survivor - through whom the prosecutrix/victim/survivor could be identified - must not be disclosed in the filings, including in the memo of parties, even if they are accused in the case, since this may indirectly lead to the identification of the prosecutrix/victim/survivor;
34.2.4. Since redaction of the identifying particulars of the prosecutrix/victim/survivor from the FIR, chargesheet, proceedings before the trial court and other similar records, is the duty and obligation of the authorities/court that prepare such documents; and insofar as the proceedings before this court are concerned, making complete redaction in each of those documents may not be feasible, it is also directed that the files/paper-books/e-portfolio of matters relating to sexual offences filed in this court must not be provided to any person other than the parties to the litigation, to the prosecutrix/victim/survivor and their respective counsel, after due verification of the identity credentials of such persons;
34.2.5. At the stage of scrutiny of the filings, in the event the Registry finds that the identity credentials of a prosecutrix/victim/survivor are disclosed in the memo of parties or anywhere else in the filings, such filings must be returned to counsel who have filed the same, to undertake requisite redactions, before the filings are accepted;
34.2.6. To obviate the dissemination of identifying particulars to any other person or agency even within the High Court, it is further directed that all service to be effected upon the prosecutrix/victim/survivor shall only be through the Investigating Officer in accordance with Practice Directions dated 24.09.2019 and not through the process serving agency, though a copy of the petition or application must be served upon the prosecutrix/victim/survivor;
34.2.7. In effecting service as aforesaid, the Investigating Officer must remain in 'plain clothes' so as to avoid any unwarranted attention;
34.2.8. Furthermore, the Investigating Officer must also inform the prosecutrix/victim/survivor that they have the right to free legal-aid/representation in accordance with the mandate of the Supreme Court in Delhi Domestic Working Women's Forum vs. Union of India & Ors; MANU/SC/0519/1995 : (1995) 1 SCC 14 cf. para 15
34.2.9. If the parties wish to cite in court any identifying particulars of the prosecutrix/victim/survivor, including photographs or social media communications etc., such party may bring the same to court in 'sealed cover'; or file the same in 'sealed cover' or in a 'pass-code locked' electronic folder and share the pass-code only with the concerned Court Master.
34.3. The foregoing directions are not intended to be exhaustive; and at the stage of scrutiny, the Registry is expected to apply its mind to any peculiarities of a given case, with the aim and intent of scrupulously applying the directions of the Supreme Court in Nipun Saxena (supra).
IN THE HIGH COURT OF DELHI
Bail Appln. 3635/2022
Decided On: 19.04.2023
Saleem Vs. The State of NCT of Delhi and Ors.
Hon'ble Judges/Coram:
Anup Jairam Bhambhani, J.
Citation: 2023:DHC:2622,MANU/DE/2515/2023.
Read full Judgment here: Click here.
In view of this discussion, the questions referred to us are answered as follows :
(1) The 'proceedings' under Section 15-A(10) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act 1989 would cover all proceedings including a 'judicial proceeding' as contemplated under section 2(i) of the Code of Criminal Procedure, 1973.
(2) It would be necessary to video record any proceeding relating to the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act 1989 even though the proceedings are held in open court.
The objective to be achieved is effective implementation of the Amended Chapter IV-A of the Atrocities Act, which is meant to protect the rights of victims and witnesses.
(3) Hearing of a bail application under section 14-A of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act 1989 is a 'judicial proceeding' as contemplated under section 15-A of the Atrocities Act.
(4) Section 15-A (10) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act 1989 can be implemented in the absence of rules framed under the Act or formulation of a scheme for implementation. {Para 34}
35. Having answered the reference thus, the question would arise regarding the fate of the matters which are already decided wherein the proceedings were not video recorded. We are holding in this judgment that Section 15-A(10) of the Atrocities Act is mandatory. This judgment answering the reference will not affect the past proceedings which are not recorded. Effect of this judgment would be prospective.
36. It is also to be kept in mind that as of today all the Courts are not equipped with the facility of video recording. As mentioned earlier, as per Section 21 of the Atrocities Act it is the duty of the State Government to provide these facilities. Therefore, we direct the State Government to provide the facility of video recording in all the Courts in the State of Maharashtra wherever the proceedings under the Atrocities Act are to be taken up. This shall be done at the earliest. However, till the time such facilities are provided, the Courts where the facilities are not provided, may proceed without video recording the proceedings especially when the personal liberty of an accused is at stake.
IN THE HIGH COURT OF BOMBAY
Criminal Appeal No. 911 of 2019
Decided On: 13.03.2024
Hema Suresh Ahuja and Ors. Vs. The State of Maharashtra and Ors.
Hon'ble Judges/Coram:
D.K. Upadhyaya, C.J. and Sarang V. Kotwal, J.
Author: Sarang V. Kotwal, J.
Citation: MANU/MH/1654/2024.
Print Page26. Considering all the above factors, with the intention to safeguard the interest of the victims/claimants and to ensure that the victims/claimants get full compensation, less the legal costs, certain directions need be issued to the Tribunals to scrupulously follow. The following directions are issued for the benefit of the victims/claimants.
"PROCEDURE BEFORE PASSING AWARD
(i) The Claims Tribunals shall without exception, at the time of commencement of trial and evidence on the side of claimants, obtain and ensure that the bank account details of all the claimants as follows:
The first page of the bank pass-book, which will compulsorily contain the photograph of the claimant(s)/victim(s), duly attested by the Bank concerned, should be made available. Wherever the claimant(s)/victim(s) are impleaded as respondents, before the claims tribunal or the Court, their account details, as above, will have to be furnished.
(ii) In case after disclosure of the bank account details before the Claims Tribunal in terms of Clause (i), a new person is added in the account for any reason whatsoever, it is incumbent on the part of the claimant/victim to disclose the same to the Claims Tribunal, indicating the relationship of the newly added person to the claimant/victim and the purpose.
(iii) The Claims Tribunals shall also obtain and ensure the marking of Pan Card of all the claimants, wherever available.
(iv) If the claimant/victim does not have a Pan Card, the Claims Tribunal shall endeavour to advise the claimant/victim about the importance of having such a card, namely, to avoid higher Tax Deduction at Source, for their own benefit, before conclusion of trial. For this purpose, the District Legal Services Authorities and Taluk Legal Services Authorities can facilitate and provide assistance.
(v) The Claims Tribunals may verify and confirm if the claimant/victim has an Aadhaar card, and if there is one, he/she may be called upon to mark a self attested copy of the Aadhaar Card.
(vi) In case of minor claimants, their bank account details should be obtained and marked. The name of the guardian has to be specified.
(vii) The Claims Tribunals shall ensure compliance of clause (i) above, before conclusion of trial.
PROCEDURE AFTER PASSING AWARD
(viii) The Claims Tribunals shall, as a matter of rule, direct the insurance companies or transport corporations or such other entities held liable to pay the compensation, to deposit the award sum to the credit of the bank account of the Claims Tribunal directly by NEFT or RTGS mode. The Registry will issue appropriate directions in this regard enabling the respective Claims Tribunal or the District Court concerned to open separate account, which will bear a suffix " MACT" to identify that the account is in relation to motor accident claims.
(ix) The Insurance Companies and Transport Corporations shall instruct their banks to ensure deposit of the award sums by way of Direct Bank Transfer to the specified bank account of the Claims Tribunal containing the following information in the prescribed format, by way of compliance of the award.
(x) In turn, the bank of the Claims Tribunal shall receive the deposited sum and capture the above information and furnish a statement of account on a daily basis to the Registry of the Claims Tribunal to enable the said Registry to reconcile the deposits of compensation and the respective MCOPs towards which such deposits were made.
(xi) On such deposits being made, the insurance companies and transport corporations shall submit a letter to the Registry of the Claims Tribunal enclosing a copy of the said bank advice, in prescribed format as above, as per which the deposit was made to the bank account of the Claims Tribunal, to enable the Claims Tribunal to keep tab on the deposits made and the MCOPs for which they were made, which is a fundamental need for a smooth implementation of this well intentioned scheme. The Payment advice for remittance of compensation is as under:
PAYMENT ADVICE FOR REMITTANCE OF COMPENSATION
From:
.... Bank
....
To:
.... Court
....
We confirm remittance of compensation as follows on instructions of.... (insurance company/transport corporation):--
(xii) The Insurance Companies, Transport Corporations and such other entities making such deposit, shall also send a copy of the payment advice in Clause (ix) to the Claims Tribunal concerned and serve a copy of the same on the claimants or their counsel as the case may be.
(xiii) Insofar as tax deduction at source is concerned, Form 16-A of the IT Act should be provided to the claimant/victim on whose behalf the deduction has been made so as to enable him/her to seek refund of tax deducted.
(xiv) The Claims Tribunals shall ensure that the benefit of details of such bank account of the Claims Tribunal concerned are identified in the award itself, for compliance by those required to satisfy the award.
(xv) The Claims Tribunals shall ensure that as and when an order is passed for disbursal of compensation amount, it will ensure that such disbursal of compensation shall be made directly to the credit of the bank account of the claimant/victim, as the case may by NEFT or RTGS. The bank account details of the claimant/victim(s) shall be stated in the award/order of the Claims Tribunal.
(xvi) The Claims Tribunals shall, in case of minor claimants, retain the amounts in court deposit until they attain majority. Thereafter, the Claims Tribunal shall ensure deposit of their shares by Direct Bank/Benefit Transfers to the accounts of the parties, who were minors. Wherever the Claims Tribunal feels it appropriate to direct withdrawal of interest for the benefit of the minor, interest shall be paid by direct transfer to the account of the minor.
(xvii) The Claims Tribunals shall also ensure that in case the claimant or claimants die pending proceedings and legal representatives are brought on record, the same procedure as above in respect of claimants shall be strictly adhered to in respect of impleaded legal representatives also.
(xviii) The Claims Tribunals shall also ensure that in case of compromise being recorded in Lok Adalat proceedings, at the time of such compromise, the details of bank accounts, Pan Card (if available) of the claimant or claimants and/or legal representatives shall also be obtained and disbursal of the amount compromised shall also be only by way of NEFT/RTGS. In cases where the claimants or victims have Adhaar Cards, a self attested copy of the same may also be obtained.
(xix) The High Court Registry is directed to place the matter before the Hon'ble Chief Justice so that appropriate circular can be issued to all the District Judges and the Claims Tribunals to publish the above interdict, as it needs to be widely publicized and displayed in the notice board and also by way of intimation to insurance companies, transport corporations and other departments that they are required to follow these instructions.
(xx) The District Judges concerned shall ensure strict compliance of the above directions.
(xxi) The Claims Tribunals are hereby instructed to abide by the above direction without any let or hindrance, scrupulously and in case they find any procedural difficulty while implementing the same, it can be brought to the attention of this Court through the Registry.
(xxii) We hereby hold that these directions shall come into force for strict implementation and compliance on and from 1.8.2016 so as to enable the Claims Tribunal concerned to take suitable steps and provide the logistics for complying with the above directions.
(xxiii) A flow chart depicting the mode in which the transactions, namely deposit and payment of compensation, are to be made is annexed to this judgment."
IN THE HIGH COURT OF MADRAS
Civil Miscellaneous Appeal No. 428 of 2016
Decided On: 11.03.2016
The Divisional Manager, The Oriental Insurance Company Ltd. Vs. Rajesh and Ors.
Hon'ble Judges/Coram:
R. Sudhakar and S. Vaidyanathan, JJ.
Authored By : S. Vaidyanathan, R. Sudhakar, S. Vaidyanathan
Citation: MANU/TN/0606/2016,2016-2 L W 561 Madras.
Print PageHaving regard to the rampant, illegal and unauthorised constructions raised in the country as observed in State of Maharashtra's case MANU/SC/0335/1991 : [1991] 2 SCR 745 a (supra) before parting with this case, we would like to formulate the following guidelines to be followed by the respondent in respect of illegal constructions. The guidelines should not be treated as exhaustive but only illustrative and the discretion to be exercised by the Corporation in any given case should not be arbitrary or, capricious.
1) In cases where applications having been duly filed in accordance with law, after fulfilling all requirements, seeking permission to construct buildings and permission was also granted by the Corporation, the power of demolition should be exercised by the Corporation only if the deviations made, during the construction are not in public interest or cause public nuisance or hazardous or dangerous to public safety including the residents therein. If the deviations of violations are minor, minimal or trivial which do not affect public at large, the Corporation will not resort to demolition.
2) whatever is stated in guideline number (1) will also equally apply to the permissions deemed to have been granted under Section 437 of "The Act".
3) If no application has been filed seeking permission and the construction is made without any permission whatsoever, it is open to the Corporation to demolish and pull down or remove the said unauthorised structure in its discretion. Otherwise, having regard to the facts and circumstances of the case, it will be putting a premium on the unauthorised construction.
When the Corporation comes to the conclusion, keeping the above guidelines in view, that the construction in question is required to be demolished or pull down, it should follow the procedure indicated below:
(i) The demolition should not be resorted to during festival days declared by the State Government as public holidays excluding Sundays. If the festival day declared by the Government as a public holiday falls on a Sunday, on that Sunday also, the Corporation should not resort to demolition.
(ii) In any case, there should not be any demolition after sun set and before sun rise.
(iii) The Corporation should give notice of demolition as required by the statute fixing the date of demolition. Even on the said date, before actually resorting to the demolition, the Corporation should give reasonable time, depending upon the premises sought to be demolished, for the inmates to withdraw from the premises. If within the time given the inmates do not withdraw, the Corporation may proceed with actual demolition;
These guidelines are laid down in view of the fact that the Corporation is a public authority and its action must be tested on the touchstone of fairness and reasonableness. {Para 36}
IN THE HIGH COURT OF ANDHRA PRADESH
Writ Petn. No. 10019 of 1993
Decided On: 02.09.1994
3 Aces, Hyderabad Vs. Municipal Corporation of Hyderabad
Hon'ble Judges:
S.S.M. Quadri, P.L.N. Sarma and B.S. Raikote, JJ.
Author: P.L.N. Sarma, J.
Accordingly, the following directions are issued to all the
Special Courts in Maharashtra:
(i) The Special Courts to ensure that the deposition of the child/
victim is recorded as expeditiously as possible, keeping in mind the mandate of the POCSO Act, and the observations made by this Court hereinabove.
(ii) The Special Courts to conclude the recording of evidence i.e.
examination-in-chief and cross-examination of the victim, as
expeditiously as possible, preferably on the same day, unless
adjournment is warranted.
(iii) The Courts to also ensure that the victim/child is not called
frequently to the Court, as this would add to victim/child’s trauma.
(iv) Adjournments whilst examining the child/victim should be
minimal and if granted, reasons be recorded warranting adjournment. Unwarranted adjournments should not be entertained.
(v) When the child/victim is examined, all precautions/safeguards
i.e. child friendly practices be taken/adopted to ensure that the child/ victim feels safe, is comfortable, and that the child/victim is not in any way exposed to the accused; that the proceedings are conducted in-camera; that all measures as stipulated in the Act and directions given by various judgments are duly complied with. It is always open for the learned Judge in cases, where necessary, to call the child/victim to Court, prior to recording of the deposition, so that, the child/victim is acclimatized/familiarized with the set-up, so that the child/victim has no fear of what to expect in Court on the day of the deposition, which can aid in the child/victim in deposing freely, without fear or anxiety.
(vi) The Court to ensure that the parents of the child or any other person in whom the child has trust or confidence, is present at the time of examination of the child, as mandated under Section 37 of the POCSO Act. If the Court is of the opinion that the child needs to be examined at a place other than the Court, it shall do so in terms of the proviso to Section 37.
(vii) The directions of the Apex Court in Children in Street
Situations, In Re, 2022 SCC OnLine SC 189 and other judgments in this regard be followed scrupulously whilst conducting trials under the POCSO Act. {Para 15}
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL BAIL APPLICATION NO. 3242 OF 2019
Atul Gorakhnath Ambale Vs The State of Maharashtra
CORAM : REVATI MOHITE DERE, J.
FRIDAY, 1 s t APRIL 2022
Print PageAs per Himani Alloys Ltd. v. Tata Steel Ltd. (2011) 15 SCC 273 cited by the Corporation, the test for the invoking of Order XII Rule 6 of the CPC being that the admission so made must clear and unequivocal, on the face of which it is impossible for the party making it to succeed. In the light of the stand in the written statement, there is a clear admission as to the final bill amount as also that the Contractor has to wait in a queue. Thus the Trial Court has rightly invoked the provisions of Order XII Rule 6.{Para 55}
Conclusions and Findings
56. The General Conditions of Contract i.e., clauses 7 and 9 which are admittedly part of the work orders issued by both the NrDMC and the EDMC are being tested in these batch of cases. A contract which stipulates that the consideration would be paid in an unforeseen time in the future based on certain factors which are indeterminable, would in effect be a contract without consideration. Even if the contract is held to be a valid contract, then the concept of `reasonableness' has to be read into the same. Section 46 of the Contract Act and the explanation thereto is clear that “what is a reasonable time is a question of fact in each case.” A Corporation which gets works executed cannot therefore include terms in the contract which are per se unconscionable and unreasonable as -
a) There is no fixed time period as to when the funds would be available;
b) There is also no fixed mechanism to determine as to when and in what manner the head of account is to be determined and as to how the Contractor would acquire knowledge of these two facts;
c) There is also no certainty as to how many persons are in the queue prior to the Contractor and for what amounts;
d) There is enormous ambiguity in the receipt under the particular heads of accounts.
57. These clauses in effect say that the Contractor is left with no remedy if the Corporation does not pay for the work that has been executed. Such a Clause would be illegal and contrary to law. Such clauses, even in commercial contracts, would be contrary to Section 25 read with Section 46 of the Contract Act.
58. The clauses do not specify an outer time limit for payment. The expression reasonable time has to be `a time'. The concept of time itself is ensconced with specificity and precision. Clause 9 is the opposite of being precise. It is as vague and ambiguous as it could be because it depends on factors which are totally extraneous to the contract, namely -
Allotment of funds to the Corporation by the Government;
Allotment of funds in a particular head;
Allotment of funds for payments who are in queue prior to the contractor;
59. Thus, these factors, which are beyond the control of the Contractor and which would govern the payment of consideration, make the said clauses of the contract completely unreasonable. The clauses have to thus, be read or interpreted in a manner so as to instill reasonableness in them.
60. By applying the above said principles, in respect of final bills raised by Contractors for works executed, that have been approved by the Engineer-in-Charge, the Clauses have to be read in the following manner:
a) Reasonable time for making of payments of final bills in respect of work orders up to Rs.5 lakhs shall be 6 months and work orders exceeding Rs.5 lakhs shall be 9 months from the date when the bill is passed by the Engineer-in-Charge.
b) The queue basis can be applicable for the payments to be made in chronology. However, the outer limit of 6 months and 9 months cannot be exceeded, while applying the queue system.
c) The payments are held to become due and payable immediately upon the expiry of 6 months and 9 months and any non-payment would attract payment of interest for the delayed periods.
d) A conjoint reading of Clauses 7 & 9 along with the amendment dated 19th May, 2006, clearly shows that for the payment of bills, the contractors have to follow the queue basis and as and when the amount is available under the particular head of account, the amount would be payable. The amendment does not, however, have a condition that no interest is payable for delayed payment. Such a condition exists only in Clause 7. Clause 9, therefore, when read with the amendment has to mean that the Corporation itself considers 6 months and 9 months to be the reasonable periods for which the payments of the final bills can be held back.
e) To the extent that queue basis is applied only for clearing of payments which do not extend beyond the period of 6 months and 9 months period, it is reasonable. However, if the queue basis is applied in order to make Contractors wait for indefinite periods for receiving payments, then the same would be unreasonable and would have to therefore be read down.
IN THE HIGH COURT OF DELHI AT NEW DELHI
RFA 160/2017 & CM APPL. 5807/2017 (Stay)
NORTH DELHI MUNICIPAL CORPORATION Vs VIPIN GUPTA
Print PageThe present guidelines are being issued in all the appeals. The Court has had the opportunity of perusing the trial court records in all these 43 appeals. A perusal of the records reveals the following:-
1. In most cases, the Contractors who are awarded the work orders do not submit the interim or final bills to the Engineer-in-Charge for approval;
2. The final measurement recordal is done by the Engineer-in-Charge;
3. The final bill is also prepared and passed by the Engineer-in-Charge on his own accord and the Contractor then accepts it;
4. The procedure for obtaining labour clearance certificate from the Labour Officer is not followed;
5. Once the bills are passed, Contractors are made to wait endlessly for their payments on the ground of non-availability of funds;
6. Even for refunds of Security Deposit and Earnest money deposits, the Contractor is made to wait till the final payment is made;
7. The measurement books and the photographs of work, actually carried out, are not produced in evidence.
The above process is contrary to the General Conditions of Contract. It is therefore, necessary and important that all the steps of the Contract are followed by the Contractors and the Corporations. The following guidelines are being passed:
1. Along with the work order, all the Clauses of the General Conditions of Contract should be attached;
2. On the award of the Work order, periodic inspections of the work being carried out should be done by the Engineer-in-Charge;
3. If possible, photographs of the works at different stages should be taken and maintained on the record;
4. Interim bills should be submitted by the Contractor – duly certifying the work which has been carried out;
5. Final bills should be submitted by the Contractor – duly certifying the work carried out along with photographs;
6. The Bill should be scrutinised by the Engineer-in-Charge, works should be recorded in the measurement book and thereafter, the bill should be passed;
7. Once the Bill is passed, the payment schedule of 6 months and 9 months should be adhered to. Delay in payments would result in Interest being levied;
8. For refunds of Security deposit and Earnest Money deposit, the Contractor should unscrupulously comply with the conditions in Clauses 17 and 45. For refunds to be made, payment of final bill need not be awaited. Once the conditions of Clauses 17 and 45 are complied with and the final bill is passed, refunds ought to be made;
9. In suits relating to recovery of Contractor’s dues, all the evidence including the NIT, General Conditions of Contract, periodic inspection reports, Final bill as submitted, Final bill as passed, Measurements carried out, Photographs etc., should be produced and duly exhibited.
10. IT infrastructure ought to be created to maintain records of the work orders, inspection reports, final bills, photographs etc., digitally, as it is noticed that the trial court record does not contain all the relevant documents and in several cases, different versions of clauses are relied upon by both sides, bills are not properly understandable and there is no evidence of actual inspections or measurements having been taken. Maintenance of digital records will make it more transparent and easily accessible for the officials and for production in the Court in case of future litigation.
Adherence to the above shall ensure that the works are duly carried out as per the quality standards prescribed and there is proper record of work being done. Once the work is carried out payments ought not to be delayed, inasmuch as delay in payments compromises on availability of quality civil work for the Corporations, who take care of basic amenities for citizens such as roads, pavements, civil works, sewerage lines etc.
These guidelines shall be read along with the judgments pronounced today in these appeals.
IN THE HIGH COURT OF DELHI AT NEW DELHI
RFA 160/2017 & CM APPL. 5807/2017 (Stay)
NORTH DELHI MUNICIPAL CORPORATION Vs VIPIN GUPTA
CORAM:
JUSTICE PRATHIBA M. SINGH
Date of decision :22nd March, 2018
Print PageIn view of the above, the present application is
disposed of as follows:
a) The impugned order is quashed and set aside.
b) In order to address the aforesaid apprehension of
accused persons in the State of Maharashtra of the
possibility of arrest upon remaining present before the
Sessions Court pursuant to direction under Section
438(4) of the Cr.P.C. (Maharashtra Amendment), and
rejection of their application for anticipatory bail, the
following directions are issued:
(i) The Prosecutor under Section 438(4) of the
Cr.P.C. (Maharashtra Amendment) shall state
cogent reasons while seeking the obligatory
presence of the accused before the Sessions
Court at the time of final hearing of the
application for anticipatory bail.
(ii) The Sessions Court shall consider such an
application and pass a reasoned order as to why
the presence of the accused is necessary, in the
interest of justice, at the time of final hearing of
application for grant of anticipatory bail.
(iii) If the Sessions Court rejects the application for
anticipatory bail upon final hearing and the
accused is present before the Sessions Court in
pursuance of directions given under Section
438(4) of the Cr.P.C. (Maharashtra Amendment),
the Court shall extend the interim protection
operating in favour of the accused for a
minimum period of three working days, on the
same conditions on which interim protection was
granted during pendency of the application for
anticipatory bail or on such further conditions as
the Sessions Court may deem fit, in the interest
of justice.
(iv) In cases where the Sessions Court deems it
appropriate to grant extension of interim
protection for more than three working days, it
shall record reasons for the same and in any
case, such extension of interim protection upon
existing conditions or further stringent
conditions, shall not exceed a period of seven
working days.
(v) The accused shall abide by the conditions so
imposed by the Sessions Court while granting
extension of interim protection, failing which
such interim protection shall cease to operate
instantaneously.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
Criminal Application (APL) No. 393 of 2021
Dr. Sameer Narayanrao Paltewar Vs. The State of Maharashtra,
CORAM : MANISH PITALE, J.
PRONOUNCED ON: AUGUST 21, 2021
Print PageTo recapitulate and for easy reference, we summarise as follows:
a. The 164 Cr.P.C. statement of victim/witness:
— A statement of a witness/victim can be recorded under Section 164 Cr.P.C. only at the instance of the Investigating Officer of the case.
— It is not necessary for the Investigating Officer to approach the CMM/CJM with an application for nominating a Magistrate to record the statement of a witness/victim under Section 164 Cr.P.C.
— A Magistrate, whether he has got jurisdiction or not, to inquire into or try the case, can record the statement of a witness/victim under Section 164 Cr.P.C. on the request of the Investigating Officer of the case.
— The Presiding Officer of a Special Court which has been empowered to take cognizance of an offence without there being a need for committal, may also record the statement of a witness/victim under Section 164 Cr P.C. on the request of the Investigating Officer.
— After recording the statement of a witness/victim under Section 164 Cr.P.C. the Judge/Magistrate shall arrange to take two photocopies of such statement, under his direct supervision and certify the same as true copies.
— He shall furnish one such certified photocopy of the statement to the Investigating Officer free of cost, immediately, with a specific direction to the latter to use it only for the purpose of investigation and not to make its contents public, until the investigation is completed and final report filed.
— The other certified photocopy of such statement shall be kept in a sealed cover in the safe custody of the Judge/Magistrate.
— If the Magistrate who had recorded the 164 Cr.P.C. statement is not the jurisdictional Magistrate, he shall send the original statement to the jurisdictional Court, either through a special messenger or by registered post with acknowledgment due.
— If the Judge/Magistrate who had recorded the 164 Cr.P.C. statement is himself the jurisdictional Magistrate, he shall keep the original of the statement in the case records.{Para 97}
In the High Court of Madras
(Before Indira Banerjee, C.J. and P.N. Prakash, J.)
Murugasamy Vs State
Print PageThus, the upshot of the aforesaid discussion with regard to the confession statement of an accused recorded under Section 164 Cr.P.C. shows that it is done not only in the aid of investigation but also to be used as a substantive piece of evidence during trial. Therefore, it is imperative that the Investigating Officer is immediately supplied with a copy of the confession statement. To summarise:
— The Investigating Officer shall make an application before the CMM/CJM for nominating a Magistrate, other than the jurisdictional Magistrate, to record the confession statement of an accused.
— After recording the confession statement of an accused, the recording Magistrate shall arrange to take two photocopies of the same under his direct supervision and certify the same as true copies.
— The confession statement, in original, shall be sent in a sealed cover to the jurisdictional Magistrate or Court, as the case may be, through a special messenger or by registered post with acknowledgment due.
— One certified copy of the confession statement shall be immediately furnished to the Investigating Officer, free of cost, with a specific direction to him, to use it only for the purpose of investigation and not to make its contents public, until the investigation is completed and final report filed.
— The other certified photocopy of the confession statement shall be kept in a sealed cover in the safe custody of the recording Magistrate.{Para 68}
In the High Court of Madras
(Before Indira Banerjee, C.J. and P.N. Prakash, J.)
Murugasamy Vs State
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subject of locker management is inadequate and muddled. Each
bank is following its own set of procedures and there is no
uniformity in the rules. Further, going by their stand before the
consumer fora, it seems that the banks are under the mistaken
impression that not having knowledge of the contents of the
locker exempts them from liability for failing to secure the lockers
in themselves as well. In as much as we are the highest Court of
the country, we cannot allow the litigation between the bank and
locker holders to continue in this vein. This will lead to a state of
anarchy wherein the banks will routinely commit lapses in proper
management of the lockers, leaving it to the hapless customers to
bear the costs. Hence, we find it imperative that this Court lays
down certain principles which will ensure that the banks follow
due diligence in operating their locker facilities, until the
issuance of comprehensive guidelines in this regard.
12. Thus, we emphasize that irrespective of the value of the
articles placed inside the locker, the bank is under a separate
obligation to ensure that proper procedures are followed while
allotting and operating the lockers:
(a) This includes maintenance of a locker register and
locker key register.
(b) The locker register shall be consistently updated in
case of any change in allotment.
(c) The bank shall notify the original locker holder
prior to any changes in the allotment of the locker,
and give them reasonable opportunity to withdraw the
articles deposited by them if they so wish.
(d) Banks may consider utilizing appropriate
technologies, such as blockchain technology which is
meant for creating digital ledger for this purpose.
(e) The custodian of the bank shall additionally
maintain a record of access to the lockers, containing
details of all the parties who have accessed the lockers
and the date and time on which they were opened and
closed.
(f) The bank employees are also obligated to check
whether the lockers are properly closed on a regular
basis. If the same is not done, the locker must be
immediately closed and the locker holder shall be
promptly intimated so that they may verify any
resulting discrepancy in the contents of the locker.
(g) The concerned staff shall also check that the keys
to the locker are in proper condition.
(h) In case the lockers are being operated through an
electronic system, the bank shall take reasonable
steps to ensure that the system is protected against
hacking or any breach of security.
(i) The customers’ personal data, including their
biometric data, cannot be shared with third parties
without their consent. The relevant rules under the
Information Technology Act, 2000 will be applicable in
this regard.
(j) The bank has the power to break open the locker
only in accordance with the relevant laws and RBI
regulations, if any. Breaking open of the locker in a
manner other than that prescribed under law is an
illegal act which amounts to gross deficiency of service
on the part of the bank as a service provider.
(k) Due notice in writing shall be given to the locker
holder at a reasonable time prior to the breaking open
of the locker. Moreover, the locker shall be broken
open only in the presence of authorized officials and
an independent witness after giving due notice to the
locker holder. The bank must prepare a detailed
inventory of any articles found inside the locker, after
the locker is opened, and make a separate entry in the
locker register, before returning them to the locker
holder. The locker holder’s signature should be
obtained upon the receipt of such inventory so as to
avoid any dispute in the future.
(l) The bank must undertake proper verification
procedures to ensure that no unauthorized party gains
access to the locker. In case the locker remains
inoperative for a long period of time, and the locker
holder cannot be located, the banks shall transfer the
contents of the locker to their nominees/legal heirs or
dispose of the articles in a transparent manner, in
accordance with the directions issued by the RBI in
this regard.
(m) The banks shall also take necessary steps to
ensure that the space in which the locker facility is
located is adequately guarded at all times.
(n) A copy of the locker hiring agreement, containing
the relevant terms and conditions, shall be given to the
customer at the time of allotment of the locker so that
they are intimated of their rights and responsibilities.
(o) The bank cannot contract out of the minimum
standard of care with respect to maintaining the safety
of the lockers as outlined supra.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 3966 OF 2010
Amitabha Dasgupta Vs United Bank of India
Author: MOHAN M. SHANTANAGOUDAR, J.
Dated: FEBRUARY 19, 2021
Print PageAs regard to the claim of compensation raised on behalf of the
respondent, we are conscious of the settled principles that the object
of Chapter XVII of the NIA is not only punitive but also compensatory
and restitutive. The provisions of NIA envision a single window for
criminal liability for dishonour of cheque as well as civil liability for
realisation of the cheque amount. It is also well settled that there
needs to be a consistent approach towards awarding compensation and unless there exist special circumstances, the Courts should uniformly levy fine up to twice the cheque amount along with simple interest at the rate of 9% per annum. R. Vijian v. Baby, (2012) 1 SCC 260 ¶20. {Para 20}
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 123 of 2021
M/s. Kalamani Tex & Anr Vs P. Balasubramanian
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