Manipur: Sexual Violence – Committee formed – Various Directions issued

The jurisdiction of this Court under Article 136 of the Constitution was invoked to challenge the order of the High Court principally on the ground that while exercising jurisdiction under Article 226 of the Constitution the High Court cannot issue directions for the inclusion of a community in the list of Scheduled Tribes. The pleadings in the Special Leave Petition highlight that ‘Manipur is burning after the impugned order. (Para 2)

The State was directed to carry out this exercise and inform the Court how many of the FIRs pertain to cases involving: (i) murder and/or rape and outraging of modesty; (ii) arson and looting; (iii) destruction of house property and places of religious worship; and (v) grievous hurt. (Para 10)

During the course of the submissions which have been addressed before this Court, certain fundamental aspects warranting the immediate attention of this Court have crystallized. Counsel for the petitioners specifically highlighted the following issues:

a. The need for the appointment of a court-mandated Committee for hearing and healing and for                     restoring  the confidence of survivors and the families of victims of violence, particularly sexual violence           against women

b. Constituting a court-appointed Special Investigating Team[SIT] comprising five police officers drawn             from outside the State of Manipur with a specific mandate to ensure:

i. registration of FIRs;

ii. recording of statements of victims under Section 164 CrPC; and

iii. medical examination of the victims under Section 164A CrPC;

c. Protection of victims and witnesses;

d. Provision of legal aid;

e. Enforcing the right to a speedy trial;

f. Provision of free and comprehensive medical aid to survivors or victims;

g. Transformative and reparative justice for the victims of ethnic violence, including by:

i. Ensuring conditions of dignity in the relief camps;

ii. Providing compensation and restitution to the victims of violence; and

iii. Taking preventive measures;

h. Facilitating the right to information by appointing nodal officers at relief camps and other places to               bridge the informational vacuum;

i. Providing dignity in the disposal of dead bodies; and

j. Appointment of a Commission of Inquiry to enquire into dereliction of duty by public servants. (Para 14)

This Court must express its anguish of the manner in which women have been subjected to grave acts of sexual violence in the course of the sectarian strife in Manipur. Subjecting women to sexual crimes and violence is completely unacceptable and constitutes a grave violation of the constitutional values of dignity, personal liberty and autonomy all of which are protected as core fundamental rights under Part III of the Constitution. Mobs commonly resort to violence against women for multiple reasons, including the fact that they may escape punishment for their crimes if they are a member of a larger group. In time of sectarian violence, mobs use sexual violence to send a message of subordination to the community that the victims or survivors hail from. Such visceral violence against women during conflict is nothing but an atrocity. It is the bounden duty of the state – its foremost duty, even – to prevent people from committing such reprehensible violence and to protect those whom the violence targets. (Para 17)

In this backdrop, there are two broad objects which the directions of this Court must subserve. Firstly, there is a need to ensure that the violence ceases, the perpetrators of violence are punished according to the procedure established by law, and that consequently, the faith and confidence of the community in the justice system is restored. Secondly, there is a pressing need to ensure that the rule of law is restored and public confidence in the investigative and prosecutorial process is sustained. (Para 19)

In order to subserve the two objectives which have been highlighted above, we issue the following directions:

a. Committee consisting of the following three members is constituted:

i. Justice Gita Mittal, former Chief Justice of the High Court of Jammu and Kashmir;

ii. Justice Shalini Phansalkar Joshi, former Judge of the High Court of Judicature at Bombay; and

iii. Justice Asha Menon, former Judge of the High Court of Delhi.

b. The mandate of the Committee shall be to:

i. Enquire into the nature of violence against women that occurred in the State of Manipur from 4 May              2023 from all available sources including personal meetings with survivors, members of the families of              survivors, local/community representatives, authorities in charge of relief camps and the FIRs lodged as            well as media reports; and

ii. Submit a report to this Court on the steps required to meet the needs of the survivors including                    measures for dealing with rape trauma, providing social, economic, and psychological support, relief                and rehabilitation in a time bound manner;

iii. Ensure that free and comprehensive medical aid and psychological care to victims of survivors is                  provided;

iv. Ensure conditions of dignity in relief camps set up for displaced persons including suggestions for                additional camps. This would include, illustratively, ensuring that the following requirements are met:

A. Clean rations which are adequate in quantity;

B. Adequate supplies of essential products such as soap, water, toothpaste, other toiletries, and                         clothes;

C. Taking care of the needs of infants and lactating mothers;

D. Meeting the requirement of basic medical care;

E. Control on the outbreak of communicable diseases;

F. Providing information on the accessibility of legal, psychosocial, medical and livelihood services;

G. Access to free pregnancy tests, free emergency contraceptives, free sanitary pads and free                            maternal health services including access to gynaecologists;

H. Emergency and specialised medical care for people suffering with critical illness including                              haemophilia, cancer, and HIV/AIDS;

I. Proper sanitation facilities at the relief camps including clean toilets and bathrooms which are                         adequate in number having due regard to the number of people housed in a particular relief camp                   and proper disposal of sewage and other waste;

J. Suicide prevention services and regular visits by psychologists / psychiatrists to treat the impact of                violence and trauma;

K. Regular visits by psychologists, psychiatrists, and counsellors who are specifically trained to treat                  children and adolescents;

L. Ensuring that women, children and persons suffering from physical and mental disabilities have                    equal access to resources to meet their basic needs; and

M. Ensuring that information regarding the availability of the facilities listed above is disseminated                   and awareness is created amongst the residents of the relief camps.

v. Ensuring the payment of compensation and restitution to victims of violence; and

vi. Issuing directions for the appointment of nodal officers at relief camps and the provision of toll-free             helplines to provide updates on any investigation, missing persons, and the recovery of dead bodies. The         nodal officers must also ensure that they maintain a database of all persons who are housed in their                 respective relief camps. They must use this database to coordinate with one another and ensure that                 minors and other persons who have been separated from their families are reunited with their families at         the earliest. (Para 20)

In order to ensure proper monitoring and supervision of the investigation by the police authorities, the Union Ministry of Home Affairs shall make available, on deputation, one officer of the rank of Police Inspector drawn from the States of Rajasthan, Madhya Pradesh, Odisha, Jharkhand, Maharashtra and NCT of Delhi. The Ministry of Home Affairs shall also nominate, on deputation, at least fourteen officers not below the rank of Superintendent of Police to be in charge of the respective SITs. The investigation by the SITs constituted for the State of Manipur shall also be monitored and supervised by Shri Dattatray Padsalgikar, the officer appointed by this Court for the purpose. The following directions are issued in this regard:

  1. In cases where the FIR relates to a sexual offence (rape, outraging the modesty of a woman, etc.) in addition to any other crime (murder, grievous hurt, etc.), the SIT which consists of women officers (Inspectors / Sub- Inspectors / PCs as described by the State of Manipur in the extract above) shall be in charge of the entire investigation;
  2. The SIT will visit each relief camp within the area assigned to it and make it known that it is an impartial body which is accepting complaints of violence (including sexual violence). This is necessary because many survivors / victims may not approach the police machinery of their own accord, especially in the aftermath of sectarian violence which may have resulted in the loss of family members and homes, displacement, and trauma to their own bodies and minds;
  3. Where sexual offences are being investigated, the SITs shall follow all prescriptions in law intended to prevent the re-traumatization of women, including the second proviso to Section 161(3) CrPC. The SITs shall comply with the directions issued by this Court with regard to the investigation of sexual offences including the directions issued in Nipun Saxena v. Union of India[(2019) 2 SCC 703] and XYZ v. State of Madhya Pradesh. [2022 INSC 799]
  4. The SITs constituted by the State of Manipur shall not consist exclusively of members belonging to either one of the communities involved in the clashes in Manipur;
  5. Should the officer appointed by this court require any further assistance of supervising officers at the DIG level or otherwise, a requisition in that regard shall be submitted to the Union Ministry of Home affairs for necessary action;
  6. In the course of monitoring the investigation, Shri Dattatray Padsalgikar will ensure that, depending on the facts of each case, the FIRs are registered by invoking relevant penal provisions. Illustratively, some of the provisions are set out below (Para 27)

The officer nominated by this Court shall, in the course of monitoring the investigation, issue all appropriate directions including: a. Providing qualified legal assistance during the course of investigation; b. Making investigations time-bound; c. Timely recording of statements under Section 161 and Section 164 CrPC including with proper support persons/facilitators under the High Court of Manipur guidelines for recording of evidence of vulnerable witnesses, if required, through video conferencing or automatic transcription; d. Provision for legal aid counsel to the victims during the course of the investigation; and e. Maintenance of secrecy of the materials collected during the investigation and maintenance of the anonymity of the victims / survivors of sexual violence in the status reports submitted to this Court. (Para 28)

The Union of India and the State of Manipur shall: a. Ensure that all the areas which are vulnerable to sectarian violence and riots are identified and monitored so that preventive measures are effectively put into place; b. Disseminate information regarding and widely publicize the constitution of the SITs and the constitution of the three-Judge Committee by this Court in all villages, towns, and districts of Manipur as well as in every relief camp that has been set up, in a language that is comprehensible to all residents of Manipur. This information must be made available even to those who are not in possession of a radio, newspaper subscription, smartphone, or television; and c. Take stock of the number of arms missing or looted from the armouries of the state and of these, the number of arms which have been recovered. Formulate and implement a plan to recover any missing arms. (Para 29)

Shri Dattatray Padsalgikar and the three-Judge Committee appointed by this Court shall submit reports to this Court within a period of two months, elaborating on the progress which has been made. This Court shall issue further directions at that stage for the shifting of the trials outside the State of Manipur, as may be required and for consequential directions. (Para 30)

SUPREME COURT OF INDIA

2023 STPL(Web) 161 SC

[2023 INSC 698]

Dinganglung Gangmei Vs. Mutum Churamani Meetei & Ors.

Special Leave Petition (Civil) Diary No 19206 of 2023 with Special Leave Petition (Civil) Diary No 19210 of 2023 Writ Petition (Civil) No 540 of 2023 Writ Petition (Civil) No 576 of 2023 Writ Petition (Civil) No 572 of 2023 Writ Petition (Civil) No 574 of 2023 Writ Petition (Criminal) No 321 of 2023 Writ Petition (Criminal) No 327 of 2023 Writ Petition (Criminal) No 329 of 2023 Writ Petition (Civil) No 802 of 2023-Decided on 7-8-2023

2023 STPL(Web) 161 SC https://stpllaw.in/wp-content/uploads/2023/08/2023-STPLWeb-161-SC.pdf

 

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Breach of peace: It must disturb public order, not just personal peace

Code of Criminal Procedure, 1973 – Sections 145, 146- Breach of peace – Emergency situation – Possession dispute – Civil litigation – Non-application of mind – Proceeding under Section 145 – Attachment under Section 146 – The application under Section 482 of the Code of Criminal Procedure, 1973 challenges the orders by the Executive Magistrate, concerning a dispute under Section 145 of the Code of Criminal Procedure, 1973 and subsequent attachment under Section 146(1) of the same.

The petitioner contests the legality of both orders, asserting that the initiation of the proceeding and the attachment were illegal and an abuse of process. It’s argued that the jurisdiction under Section 145 can only be invoked if there’s a likelihood of a breach of peace, which wasn’t sufficiently demonstrated in this case.

The petitioner highlights that the attachment order was passed ex-parte without affording them an opportunity to respond, which is contrary to the exceptional circumstances required for such an order. Reference is made to legal precedent discouraging parallel criminal proceedings when a civil litigation is pending regarding property possession, emphasizing the binding nature of civil court decrees.

The respondents counter by claiming entitlement to the land based on a partition deed and subsequent court judgments. They argue that emergency circumstances justified the attachment due to the petitioner’s attempt to construct on disputed land.

Legal precedents are cited to emphasize that the existence of an emergency, not just the use of the term “emergency,” warrants attachment under Section 146.

The judgment critically examines the orders and the circumstances leading to them. It observes discrepancies between the assertions made in the complaint and police report, highlighting the absence of clear grounds for apprehension of breach of peace.The judgment reiterates the requirement for a dispute likely to cause a breach of peace under Section 145, emphasizing that it must disturb public order, not just personal peace.

It concludes that the impugned orders suffer from non-application of mind and jurisdictional error, resulting in injustice to the petitioner. Consequently, both orders are quashed, and the petition is allowed. Important Paragraph Numbers of Judgment: (Para 13, 19, 30, 31)

GAUHATI HIGH COURT

2023 STPL(Web) 183 Gauhati

[2024 STPL 1651 Gauhati]

Md. Osman Ali Saikia And Anr. Vs. Chand Mahamod Saikia And 2 Ors.

Crl.Pet. 239 of 2021-Decided on 8-11-2023

https://stpllaw.in/wp-content/uploads/2024/05/2023-STPLWeb-183-Gauhati.pdf

 

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Electricity: Outstanding arrears from previous owner

Constitution of India, Article 226 – Assam Electricity Regulatory Commission [Electricity Supply Code and Related Matters] Regulations, 2004 – Electricity Act, 2003 – Section 43, 49, 50, 56 – Electricity – Outstanding arrears from previous owner – The petitioner, a partnership firm, sought a writ petition under Article 226 challenging a decision by the Assam Power Distribution Company Limited (APDCL) to deny a new electricity connection to their premises due to outstanding arrears from previous electricity bills.

The court directed interim relief for immediate electricity connection, subject to 50% payment of outstanding dues, with the remaining 50% to be paid upon dismissal of the writ petition.

The petitioner participated in an auction sale of a property and purchased a portion of land with a Business Centre cum Market Complex. They subsequently applied for a new electricity connection, which was denied by APDCL citing outstanding dues.

The court referred to the Assam Electricity Regulatory Commission [Electricity Supply Code and Related Matters] Regulations, 2004 and the Electricity Act, 2003. It cited a Supreme Court decision (K.C. Ninan vs. Kerala State Electricity Board) regarding the liability of auction purchasers for previous dues in properties sold on ‘as is where is’ basis.

The court dismissed the writ petition, holding the petitioner liable for outstanding electricity dues as per the auction sale agreement. It directed the petitioner to pay the outstanding dues as per the interim order, with APDCL waiving the accrued interest on the principal dues. (Para 15, 16)

GAUHATI HIGH COURT

2023 STPL(Web) 182 Gauhati

[2024 STPL 1650 Gauhati]

M/S Borah And Companyjiban Phukan Nagar Vs. Assam Power Distribution Company Ltd. And 3 Ors.

WP(C) 989 of 2014-Decided on 7-11-2023

2023 STPL(Web) 182 Gauhati

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Executive instructions cannot nullify statutory rules

Assam Bonded Warehouse Rules, 1965 – Rule 7 – Refund of Charges – Administrative Order – Statutory Rules – The present writ petition contested an order issued by the Secretary to the Government of Assam, Excise Department, reintroducing establishment charges under Rule 7 of the Assam Bonded Warehouse Rules, 1965, despite their abolition by the Assam Bonded Warehouse (Amendment) Rules, 2005.

The Court held that executive instructions cannot nullify statutory rules. Citing the principle established in K. Kuppusamy case, it ruled that until a rule is amended, it remains applicable. Consequently, the impugned order was set aside as ultra vires. Regarding refund, relying on Mafatlal Industries Ltd. case, the Court directed the petitioner to present evidence to the Excise Commissioner, who would determine entitlement to refund within four months, considering whether the petitioner passed on the burden of charges to retailers. (Para 15)

GAUHATI HIGH COURT

2023 STPL(Web) 181 Gauhati

[2024 STPL 1649 Gauhati]

M/S Centenary Distilleries P Ltd. Vs. State Of Assam And 2 Ors.

WP(C) 2875 of 2014-Decided on 7-11-2023

https://stpllaw.in/wp-content/uploads/2024/05/2023-STPLWeb-181-Gauhati-2.pdf

 

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Land Disputes: Binding nature of Civil Court’s decree on Revenue Courts

Land Disputes – Binding nature of Civil Court’s decree on Revenue Courts – The instant writ petition challenged a judgment of the Assam Board of Revenue concerning a land dispute. The dispute pertained to a plot of land associated with the Dargah of Pir Saheb. The Civil Court in Title Suit No.176/1978 had decreed in favor of the Petitioners’ predecessor, declaring their right, title, and possession over the land. The State of Assam was restrained from interference. Subsequently, the Settlement Officer issued a Khatian in favor of the Petitioners’ predecessor, and a new Dag was created. However, the Assam Board of Revenue, in its impugned judgment, disregarded the Civil Court’s decree and cancelled the Khatian issued to the Petitioners’ predecessor.

This action was deemed contrary to established principles, as Civil Court decrees are binding on Revenue Courts. Therefore, the High Court set aside the impugned judgment, restoring the Khatian to the Petitioners’ predecessor. (Para 12)

GAUHATI HIGH COURT

2023 STPL(Web) 180 Gauhati

[2024 STPL 1648 Gauhati]

Sayed Moinuddin Ahmed Vs. State Of Assam And 3 Ors.

WP(C) 4701 of 2013-Decided on 7-11-2023

https://stpllaw.in/wp-content/uploads/2024/05/2023-STPLWeb-180-Gauhati.pdf

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