🧠🔪Guilty Intention
🆚
🧠📚Guilty Knowledge

CASE- Anbazhagan vs State 2023

Indian Penal Code, 1860 ; Sections 299, 300, 304 - Difference between the two parts of Section 304- Under the first part, the crime of murder is first established and the accused is then given the benefit of one of the exceptions to Section 300 of the IPC, while under the second part, the crime of murder is never established at all. Therefore, for the purpose of holding an accused guilty of the offence punishable under the second part of Section 304 of the IPC, the accused need not bring his case within one of the exceptions to Section 300 of the IPC - If the act of an accused person falls within the first two clauses of cases of culpable homicide as described in Section 299 of the IPC it is punishable under the first part of Section 304. If, however, it falls within the third clause, it is punishable under the second part of Section 304. In effect, therefore, the first part of this section would apply when there is ‘guilty intention,’ whereas the second part would apply when there is no such intention, but there is ‘guilty knowledge’.

#Culpable_homicide
#Murder

@CurrentLegalGK

👦POCSO ACT

Recently SC held Courts cannot impose less than minimum sentence prescribed in POCSO ACT.

The bench stated that “The POCSO Act was enacted to provide more stringent punishments for the offences of child abuse of various kinds and that is why minimum punishments have been prescribed in Sections 4, 6, 8, and 10 of the POCSO Act for various categories of sexual assaults on children. Hence, Section 6, in its plain language, leaves no discretion to the Court and there is no option but to impose the minimum sentence as done by the Trial Court. When a penal provision uses the phraseology “shall not be less than….”, the Courts cannot do offence to the Section and impose a lesser sentence.

#S_6 Penetration sexual assault child below 12 yr Punishable as Aggravated Sexual Assault

Case - State of U.P vs Sonukushwaha 2023

🧑‍⚖2 Judges Bench

#pocso_act
#protection_of_children

@CurrentLegalGK

Benefits arising out of land.


https://www.lawctopus.com/academike/understanding-term-benefits-arise-land/

👨‍⚖️Justice P.N. Bhagwati

"Government alone will never be able to do it. It is only the people themselves who must utilise law for the purpose of bringing justice at the doorstep of the large masses of the people of the country"

Notable cases—

✓MC Mehta 1986
✓SP Gupta
✓Maneka gandhi

https://www.thequint.com/news/india/5-landmark-rulings-of-justice-pn-bhagwati

PIL man of india

https://www.barandbench.com/apprentice-lawyer/the-unparalleled-legacy-of-justice-pn-bhagwati

Recently New Guidelines To Anticipatory Bail By Uttrakhand HC.

3 Judges Bench passed by 2:1 majority

✍️Anticipatory Bail plea maintainable even after filling of chargesheet.
✍️Application for A.B can't be held to be not maintainable merely bc chargesheet is filed against accused person. This would amount to doing violence with the language of S.438, a provision meant to protect the personal liberty of people.

#interpretation_of_S.438 🔎 which curtails the remedy available to an accused to preserve his right to life & personal liberty should be eschewed.

R/w Sushila Aggarwal & ors. vs State of NCT Delhi. /  Gurbakesh singh sibbia vs State of Punjab

.


Case saubhagya vs State of Uttrakhand 2023

#crpc #anticipatorybail

@CurrentLegalGK

Sukhpal Singh Khaira v. State of Punjab (2023 SC)
A Constitution Bench of the Supreme Court issued elaborate guidelines regarding the exercise of powers under Section 319 of the Code of Criminal Procedure for summoning additional accused during trial.
Coram- 👩‍⚖️👨‍⚖️ Justices S Abdul Nazeer, BR Gavai, AS Bopanna, V Ramasubramanian and BV Nagarathna.
✍️Guidelines that the competent court must follow while exercising power under Section 319 Cr.P.C?✍️
✅(i) If the competent court finds evidence or if application under Section 319 of CrPC is filed regarding involvement of any other person in committing the offence based on evidence recorded at any stage in the trial before passing of the order on acquittal or sentence, it shall pause the trial at that stage.
✅(ii) The Court shall thereupon first decide the need or otherwise to summon the additional accused and pass orders thereon.
✅(iii) If the decision of the court is to exercise the power under Section 319 of CrPC and summon the accused, such summoning order shall be passed before proceeding further with the trial in the main case.
✅(iv) If the summoning order of additional accused is passed, depending on the stage at which it is passed, the Court shall also apply its mind to the fact as to whether such summoned accused is to be tried along with the other accused or separately.
✅(v) If the decision is for joint trial, the fresh trial shall be commenced only after securing the presence of the summoned accused.
✅(vi) If the decision is that the summoned accused can be tried separately, on such order being made, there will be no impediment for the Court to continue and conclude the trial against the accused who were being proceeded with.
✅(vii) If the proceeding paused as in (i) above is in a case where the accused who were tried are to be acquitted and the decision is that the summoned accused can be tried afresh separately, there will be no impediment to pass the judgment of acquittal in the main case.
✅(viii) If the power is not invoked or exercised in the main trial till its conclusion and if there is a split-up (bifurcated) case, the power under Section 319 of CrPC can be invoked or exercised only if there is evidence to that effect, pointing to the involvement of the additional accused to be summoned in the split up (bifurcated) trial.
✅(ix) If, after arguments are heard and the case is reserved for judgment the occasion arises for the Court to invoke and exercise the power under Section 319 of CrPC, the appropriate course for the court is to set it down for re-hearing.
✅(x) On setting it down for re-hearing, the above laid down procedure to decide about summoning; holding of joint trial or otherwise shall be decided and proceeded with accordingly.
✅(xi) Even in such a case, at that stage, if the decision is to summon additional accused and hold a joint trial the trial shall be conducted afresh and de novo proceedings be held.
✅(xii) If, in that circumstance, the decision is to hold a separate trial in case of the summoned accused as indicated earlier; (a) The main case may be decided by pronouncing the conviction and sentence and then proceed afresh against summoned accused. (b) In the case of acquittal the order shall be passed to that effect in the main case and then proceed afresh against summoned accused.

👩‍⚖️👨‍⚖️Role of Judges In Democracy

--->Aharon Barak once said that,
"Each Judge is a distinct world unto himself. Ideological pluralism and not ideological uniformity is the hallmark of judges in a legal system"

Relevance of Topic- Highest in Essay

Judiciary is a part of democracy and it comprises not only of judges but also of bar members, government officials as well but here we will be specifically talking about role of Judges In Our Democracy.

🔥Elements of the Role of judges in democracy.

1. Protection of Constitution
2. Relationship between Law and
Society in a Democracy.

👨‍⚖️👩‍⚖️Role models for judges
The SC lauded its three former judges, Justices Saiyid Fazl Ali, Subba Rao and H R Khanna, for their “vision” and “dissents” from their colleagues to protect the rights of individuals, as it held right to privacy as a fundamental right.

🌟 Shield 🛡️ for Constitution

India is a Constitutional Democracy and not just a pluralistic/majority democracy. It means a Democracy where every individual has rights and no combination of other people can take away those rights.

---->Rule of law a pillar of constitution and guardians are judges.

Evidence based fact and reason based interpretation have been the principle judiciary deals for this purpose and for advancing the precepts of rule of law in a common law system.

----> Separation of powers another cardinal principle of constitution.

The power of judicial review exercised by constitutional courts is to adhere to the constitutional ethos of democracy and derives its power from Part III (equality and non arbitrariness) and DPSP (reasonable indian society).

In a nutshell judiciary endures that there is no concentration of power and all branches should be interdependently independent.

Justice P.N. bhagwati says, " The text is a broad outline therefore Judiciary has an essential role in carving out the component rights out of fundamental rights and reduce the limitations imposed on them.

👨‍⚖️👩‍⚖️Historical Cases of protecting the constitution.

Kesavananda bharti 1973
Parliament representing sovereign will cannot amend the basic structure of constitution because fundamental/inalienable rights are natural and they were present even before constitution.

ADM Jabalpur Case
Article 21 life and liberty
(H.R. Khanna Dissent)

Minerva Mills Case

Role of the Judge on political questions was crystallised where it was held that pure political questions are not the domain of courts rather where there is the question of interpretation of law courts will interfere regardless of the outcome.

Their primary duty is to uphold the Constitution and the laws without fear or favour and in doing so, they cannot allow any political ideology or economic theory, which may have caught their fancy, to colour their decision.’

--->The golden triangle of constitution is interpreted liberally to uphold human rights.

🌟 Relationship between Law and Society in a Democracy

At times it is the society which influences a particular law making and at times it is the law which changes the society. In this process, in exceptional circumstances, judges act as catalyst, though that is not their normal function. This happens while accomplishing this second role of bridging the gap between the law and the society.

----->Rule of law is not a static but a dynamic aspect it grows and transforms with society and judges ensures this process is smooth and not drastic violent change.


🤔How to bridge the Gap between society and law❓
(Here gap means the transformation of law as per societal needs)

There are 2 ways of filling the gap—

1. Interpretation of statutes

From the letter and spirit of law that is extracting the real context and meaning of law from text and what legislature meant by that legal text.

Note: Constitutional interpretation should be made by keeping in mind the future growing needs of society and rigid procedure of amendment while statute can be amended easily and they define present rights and can be amended easily.

#Discernible_Topics
@CurrentLegalGK

"Our Constitution has an age it is organic and getting experienced by every change in it"

---->Karnataka v. Shri Ranganatha Reddy
Constitutional problems cannot be studied in a sociocultural vacuum, since socio-cultural changes are the source of the new values, and sloughing off old legal thought is part of the process the new equity-loaded legality. "A Judge is a social scientist in his role as constitutional invigilator and fails functionally if he forgets this dimension of complex duties.”

Case laws - Independent Thought
v. Union of India
wherein sex with a minor (even when she is a wife) is treated as rape, after fi nding dichotomy in law insofar as child marriages are concerned.

•Interpretation of 125 CRPC.

2. Law Creating Process
(Role of legislature)

Vishaka & Ors. v. State of Rajasthan where Court dealt with the menace of sexual harassment of women at workplace. Taking aid of the International Convention (CEDAW) to which India is a signatory, the Court stepped in even when there was no law.

• Aruna shaunbagh
• Gian kaur
• Nalsa v. UOI 2014
• DK. Basu (guidelines for arresting)


Basic principle of the dignity and
freedom of the individual is common
to all nations, particularly those having democratic set up

Judicial activism is thus promoting rule of law and if it goes into policy making it is judicial overreach.

☑️Conclusion
Ultimate aim of the judge is to adopt justice oriented approach. After all, judges of the superior judiciary are known as ‘justices’. The Courts are called ‘temples of justice’. This itself underlines the twin role which the judge is supposed to perform in a democracy.

#essay
#Discernible_Topics
@CurrentLegalGK

🌟☑️All time Most Cited Supreme court Judgements and architects of constitution.

@CurrentLegalGK

⏳🚀 Reminder

LIVE STREAM OF CURRENT LEGAL DEVELOPMENTS 2023 [PART 3] @CurrentLegalGK 27.08.2023--Sunday--7p.m.


~~~> PDFs will be circulated after the discussion is over.

🌟Decisions That Expanded The Scope Of Fundamental Rights in the last 10 years

—By Justice Deepak Gupta

"According to him the development of F.R. jurisprudence was antithesis which is the best of times and the worst of times"


☑️1. Lillu V State of Haryana 2013
(Judgment that abolished the Two finger Test)

The Court in this case held that the Two-Finger test has no scientific backing and is based on the archaic concept of a hymen determining whether a woman is a virgin or not. The Court said that the test “violates the right of rape survivors to privacy, physical and mental integrity and dignity.” (Article 21)

Recent case - DY Chandrachud and Hima Kohli in State of Jharkhand vs Shailendra Kumar Rai @ Pandav Rai 2022

☑️2. People’s Union For Civil Liberties Vs. Union Of India, 2013

Whether a citizen has the right to say they don't want to vote for anyone by casting a NOTA vote. The Court in this case said that even though the right to vote was a statutory right, a citizen also has a constitutional right to not vote for anyone. "According to me this is an important judgement, because in a democracy like ours, it emphasizes the role of the voter. The citizens decide how democracy is run."

☑️3. NALSA v. UOI, 2014

People who were marginalized and who were not even treated as human beings, were given the dignity to identify themselves as a third gender.
No third gender person could be subjected to a medical examination that would invade their right to privacy. The court held that the right to dignity, includes the right to self expression even in matters of sexual orientation."

☑️4. Shreya Singhal v UOI, 2015
(Section 66A Of It Act Unconstitutional)

Justice Nariman divided freedom of speech and expression into three-
1) Discussion
2) Advocacy and
3) Incitement,
"The right of free speech cannot be curtailed at the stage of discussion or advocacy. It is only when incitement takes place, that the state can step in."

☑️5. S.C. A.O.R. Association v. UOI 2016 (4th Judge Case that struck down NJAC the 99th C.A.A.)

Independence of judiciary is of paramount importance for constitutional democracy, where the rights of every individual is protected.

☑️6. Anita Thakur Vs. Government of J&K(2016)

"Right to dissent and right to protest is inherent part of F.R. But this right could not be exercised in a manner that it affected the rights of another citizen, who wanted to go about his normal life"

Recent cases- https://ijlr.iledu.in/case-commentary-amit-sahni-v-commissioner-of-police-and-ors/

☑️7. Shayara Bano vs. UOI 2017
(3:2 tripple talaq as unconstitutional.
Article 14, 21, 25)

This is important in the context of how far should courts go in the matter of religion. In most countries courts don't enter the domain of religion. However, in India we have been doing so. The question that arises is when there is a conflict between Fundamental Rights and religious practices, can the courts intervene?"

8. Justice K.S.Puttaswamy vs Union Of India (2017) (Unanimously reaffirmed the right to privacy as a fundamental right)

•Dissent was applauded - https://t.me/CurrentLegalGK/76

☑️ 9. Independent Thought v. UOI, 2017 (Court read down exception 2 to Section 375 insofar as it permitted a husband to have sexual intercourse with his wife below the age of 18 years of age)

Does the court have the right to create an offence?
The offence was there in the main section, so court has not created a new offence. Court has set aside the exception and not created an offence. In that sense, a landmark judgment on how the interpretation of the court can make something an offence."

☑️10. Common Cause v UOI, 2017
(Right to die with dignity & passive euthanasia)

This showed that the court even in the absence of the legislation can move ahead with the times.


@CurrentLegalGK

☑️11. Joseph Shine V UOI, 2019
(Struck down 497 of IPC being violative of Golden Triangle of ICA)

Section 497 deprived a woman of her sexual freedom and denuded her of autonomy, dignity and privacy. "The Court held that this law violates basic human rights, where the woman is treated as property.

☑️12 Navtej Singh Johar v. UOI 2018
(Read down Section 377 to the extent it criminalised consensual sexual conduct between adults)

Recent case- Same sex marriage The consensus seems to be that it should be allowed, the difference of opinion lies in whether legislature should allow it or if the court has the jurisdiction.

13. Anuradha Bhasin V. UOI
(Freedom of expression through the internet is one of the “integral parts” of Article 19(1)(a))

Crtisism- "Once it is proved that Fundamental Rights are violated the citizen must get complete justice."

☑️14. X v. Principal Secretary, Health and Family Welfare, GNCTD 2022 (Article 14 and 21) (Reproductive rights of women)

Expanded to include unmarried women and survivors of marital rape for abortions between 20 and 24 weeks. [Recent- MTP Act 2021]

☑️15. Janhit Abhiyan v. UOI
(103rd Amendment EWS)

why should the poorest of the poor in so called forward classes suffer? Therefore the government stepped in with 10% reservation. Minority says why are you leaving out the 10% in the SC ST classes also.

☑️16. Anoop Baranwal vs UOI

Read- https://t.me/CurrentLegalGK/30

Till the union comes out with an Act in this regard, it would comprise of the PM, Opposition leader and CJI. Now the Union has come out with a bill that has excluded the CJI and included a minister of the government


🚫RESTRICTIONS IMPOSED ON FRS

☑️17. National Investigation Agency v. Zahoor Ahmad Shah Watal
(Bail is rule and jail is exception)
Decision of Delhi HC reversed

Provisions of UAPA cannot by any stretch of imagination be said to be just and fair law.
•Critisism- Not just and fair restriction

☑️18. Zakia Ahsan Jafri v. Gujarat 2022

Observations which affect the liberty of the citizen. Can Court make such observations without even giving notice to the person against whom such observations are being made? Does not this go against the very principle of fair hearing?

☑️19.Vijay Madanlal Choudhary v. UOI, 2022 (Upheld balidity of impugned provisions of PMLA)

If the Burden of proof is on the State “then they don’t have to prove anything. If what they say is the gospel truth, that is accepted. Then why shouldn’t trial finish in two three months?. Then why should the investigation go on in these cases for 6 and 8 years. If that be so, does not the accused have a right to say that I should be granted bail because you have taken my right to liberty. You have taken another fundamental right of right of having a quick and fair trial”

#Landmark_Judgements
#case_briefs

@CurrentLegalGK

👨‍⚖Recently New Judgement in POCSO ACT On Bail - J&K High Court.


Bail can't be denied to Pocso accused if the victim avoid stepping into witness box.

The Court therefore held that just because the prosecutrix could not be traced and produced before the Trial Court, this cannot form a reason for denying the statutory right that has accrued in favour of the accused by spending more than one-half of the maximum period of imprisonment specified for offence under Section 8 of the POCSO Act.

The Court also pointed out that the Investigating Agency could not trace the prosecutrix despite their best efforts and consequently the prosecution has failed to produce her before the Trial Court.

The Court further stated that accused’s statutory right to bail in terms of provisions contained in Section 436-A CrPC, cannot be defeated by stating that best efforts were taken to trace the victim, but the same did not materialise in a concrete result.

Case - Ravi Kumar vs UT of J&K 2023

#pocso_act

@CurrentLegalGK

👨‍⚖Default Bail .

SC stated an accused person wouldn't be entitled to default Bail (s.167) on the ground that the chargesheet filed against them is w/o sanction of valid authory & hence is an incomplete chargesheet.

The Bench held that whether the sanction of a valid authority for chargesheet was required was not a que. to be addressed while taking a cognizance of an offence, rather it was que. to be addressed during prosecution & such prosecution started after the cognizance of offence was taken.

2 Judges Bench

Case - Judgebir Singh @ Jasbir & others vs National Investigation Agency & others 2023

#defailt_bail #crpc167


@CurrentLegalGK

👨‍💼B.R. AMBEDKAR CONSTITUTIONAL VIEWS (most cited architect of constitution in judgements)

On 25th November 1949, one of the most important speeches was delivered by Dr. Ambedkar that every student of Constitutional Law must read through thoroughly. He refers to the history of the Drafting Committee, then to the criticism of one of the members, who I would not like to name, who said that the Drafting Committee was nothing but a drifting committee. Dr. Ambedkar said that he takes it as a compliment though he knew that it was not a compliment.


What does social democracy mean❓
It means a way of life, which realises liberty, equality, and fraternity as the principles of life. These principles of liberty, equality, and fraternity as the principles of life, and these principles are not to be treated as separate items in a trinity. They form a union of trinity in the sense that to divorce one from the other is to defeat the very purpose of democracy. Liberty cannot be divorced from equality, equality cannot be divorced from liberty. Nor can liberty and equality be divorced from fraternity. Without equality, liberty would produce the supremacy of the few over the many. Equality without liberty would kill individual initiative. Without fraternity, liberty would produce the supremacy of the few over the many”

#Discernible_Topics

@CurrentLegalGK