Top News Headlines 23rd Apr 2022: Court Cannot Usurp Government’s Power To Grant Remissions U/S 432 CrPC

Court Cannot Usurp Government’s Power To Grant Remissions U/S 432 CrPC: SC

• In the case of Ram Chander vs State of Chhattisgarh and ors. the Apex Court has held that a Court cannot usurp the power of the government to grant remission of sentence to convicts. It can only review the decision of the government with regard to whether the remission granted under section 432 was arbitrary or not.
• In the instant case, one Ram Chander was convicted of offences under sections 147, 148, 302 r/w 149 and 324 r/w 149 of IPC and was sentenced to life imprisonment. His sentence was confirmed by the Chhattisgarh HC in 2013.
• After completing 16 years in confinement without remission, in September 2021, the petitioner submitted an application for premature release under Rule 358 of the Chhattisgarh Prisons Rule, 1968. The jail Superintendent sought the opinion of the Special judge on whether the petitioner can be released on remission, which the Special Judge rejected.
• The petitioner’s request was then forwarded to the Law Department of the State Government, which rejected the application on the ground that presiding Judge opined against releasing him on remission. Thus the benefit of section 433A cannot be given to the petitioner. Aggrieved, the petitioner moved the Apex Court under Article 32 of the Constitution.
• The Apex Court held that the government has the absolute power to decide whether the application under section 432 be allowed or not. The Court also added that the power cannot be exercised arbitrarily.
• Referring to the decision of the Apex Court in Laxman Naskar vs Union of India, the Court observed that if the opinion of the Judge does not comply with the requirements of section 432(2) or if the judge does not consider the relevant factors for the grant of remission that have been laid down in Laxman Naskar’s case, the Government may request the presiding judge to consider the matter afresh.
• It is important to note that the following are factors which need to be considered for the grant of remission, as laid down in Laxman Naskar’s case, which were reiterated in State of Haryana vs Jagdish (2010) SCC:

1. Whether the offence affects the society at large;
2. The probability of it being repeated;
3. Potential of the convict to commit crimes in the future;
4. Whether any purpose is being served by keeping the convict in prison;
5. Socio-economic conditions of the convict’s family.

• The purpose of section 432(2), according to the Court, is to make sure that the Executive takes an informed decision, and the decision of the presiding Judge should be well reasoned. In the present case, however, the Judge had simply said that in view of the facts and circumstances of the case, it would be inappropriate to grant remission. This goes against the spirit of section 432(2).
• The Court also held that the opinion of the presiding judge of the Court by which the person making an application was convicted, will simply enable the Government to make the right decision. This opinion, though kept on a very high pedestal, should not be followed in a mechanical fashion. This was held in the case of Union of India vs Sriharan (2016) SCC.
• Thus, while allowing the writ petition, the Apex Court held that the petitioner’s application must be reconsidered. The Special Judge was directed to provide a fresh opinion accompanied by adequate reasoning, taking into consideration the relevant factors laid down in Laxman Naskar’s case.

Ban 2-Finger Test On Rape Victims Immediately: Madras HC Directs The State Government

• In Rajivgandhi vs The State rep. by The Inspector of Police the Madras HC has directed the State Government to ban the practice of two finger test on rape victims by medical practitioners immediately.
• This direction was issued after the Court noticed that the same was being conducted in cases of sexual offences involving minor victims even after the Apex Court had held that the test violates the right of rape survivors to privacy, physical and mental integrity and dignity.
• In the instant case, the Court was hearing an appeal which was filed by the accused who had been convicted under section 5/6 of POCSO and 363 of IPC. During the course of the hearing, the Counsel for the appellant had argued that the two finger test has been declared unconstitutional and several State governments have already banned it.
• The prosecution’s case was that the accused had befriended the 16 year old victim and on 5-12-2020 the accused enticed her to meet him. She left her home on the pretext of getting some clothes stitched and when she did not return for a while, her father lodged a complaint with the Police who later found the girl.
• The victim was taken to the hospital where it was found that the accused had committed penetrative sexual assault on the victim and he was sentenced to imprisonment for life under section 6 of POCSO and 7 years imprisonment for the offence under section 363 IPC. Aggrieved by the same, the accused had preferred the present appeal.
• The learned Counsel for the appellant submitted that the medical examiner had deposed that the hymen was torn and the vagina admitted two fingers, while the accident register records that the hymen was not intact. Thus, the inconsistencies would have a bearing on the credibility of the prosecution case. He had also argued that the sentence awarded was excessive and is not proportionate to the proved offence. He also argued that no offence under section 363 IPC was made out since the victim had voluntarily gone with the applicant. The relationship was consensual and was on the pretext of marriage, and the same cannot be held to be a forced sexual relationship.
• The Counsel for the appellant also submitted that the two finger test had been declared unconstitutional by the Supreme Court. He relied upon various decisions in support of his argument.
• At the outset, the Court relied upon the decision of the Apex Court n S. Vardharajan vs State of Madras AIR 1965 SC and held that the evidence on record clearly shows that the victim had voluntarily gone with the accused and had left her home on the pretext of getting some clothes stitched. She was with him for 24 hours and did nothing to escape from his custody, thus an offence under section 363 IPC was not made out and the accused was acquitted of the same.
• The Court also observed that the prosecution had been able to prove the foundational facts of the case and the trial Court was correct in convicting the accused under the provisions of the POCSO Act.
• While referring to the practice of the two finger test, the Court referred to the decision of the Apex Court in Lillu @ Rajesh and anr. vs State of Haryana (2013) where it was held that the two finger test and its interpretation violates the right of rape survivors to privacy, dignity and physical and mental integrity. It was also observed that the victims are entitled to medical procedures conducted in such a manner that respects their right to consent. The test, even if it gives an affirmative report, cannot ipso facto give rise to the presumption of consent.
• The Gujarat HC had held in State of Gujarat vs Rameshchandra Ramabhai Panchal (2020) SCC that the two finger test used in the context of sexualt assault cases has no forensic value, and declared it as unconstitutional.
• In view of these judicial pronouncements, the Court held that the practice of the two finger test cannot be allowed to be continued. The State government was asked to ban the same.

MPID Is Constitutionally Valid; Based On Legislative Competence: SC

• In the State of Maharashtra vs. 63 Moons Technologies Ltd (2022), Justices DY Chandrachud, Surya Kant, and Bela M Trivedi upheld the attachment of 63 Moons Technologies' properties while dismissing a contest to the constitutionality of the Maharashtra Protection of Interest of Depositors (in Financial Establishments) Act 1999.
• In this case, a petition was filed claiming that the divestment of a property's title through a summary procedure under Section 7 is arbitrary. Furthermore, it was argued that Section 4 of the MPID Act is arbitrary and unconstitutional and is overly extensive in nature because:

1. Subsection (1) of Section demands the attachment of property of the 'promoter, director, partner, manager, or member of the said Financial Establishment.
2. Subsection (2) of Section divests the title of the attached properties without due process of law.

• The Maharashtra Protection of Interest of Depositors (In Financial Establishments) Act, 1999 is an act of the Maharashtra state legislature that protects the interests of Maharashtra state depositors in financial establishments and things related to it.
• Section 4 of the MPID Act states that the government should have first attached and liquidated the assets obtained from the deposits, and only after doing so if there was a budget deficit in repaying the alleged investors, the assets of any other person, including the petitioner, should have been attached.
• In KK Bhaskaran v. State (2011) 3 SCC 793, the SC ruled that the Tamil Nadu Protection of Depositors' Interests (in Financial Establishments) Act 199724 is legally valid.
• In another relevant case, State of Maharashtra v. Vijay C. Puljal (2012) 10 SCC 599, the legitimacy of the MPID Act was particularly addressed. Furthermore, in light of the prior judgment in Bhaskaran, the Court maintained the constitutional validity of the MPID Act (supra). Sonal Hemant Joshi v. the State of Maharashtra, (2012) 10 SCC 601, held the same.
• In another notable case, Soma Suresh Kumar v. Government of Andhra Pradesh 41, the Court affirmed the terms of the Andhra Pradesh Protection of Depositors of Financial Establishments Act 1999 following the earlier decisions in Bhaskaran (supra) and New Horizons Sugar Mills Limited (supra).
• After hearing the parties' contentions and referring to the aforementioned cases, the Hon'ble SC held that the Tamil Nadu enactment did not violate the requirements of Articles 14, 19(1)(g) or 21 of the Constitution. Furthermore, it was noted that the constitutional validity of state legislation governing financial establishments offering deposit schemes, including the MPID Act, had already been addressed in State of Maharashtra v. Vijay C. Puljal and Sonal Hemant Joshi v. the State of Maharashtra, so there was no reason for the Court to review the same.
• Therefore, while overturning the Bombay High Court's judgment releasing 63 Moons Technologies' assets, the Hon'ble SC found that the MPID Act is legally legitimate based on legislative competence and when examined against the requirements of Part III of the Constitution.
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