When You’re Implicated

                        

Paving the way for increased transparency to the benefit of innocent citizens who often dread being entangled in criminal cases, the Supreme Court has delivered a historic verdict on the 7^th of this month. The Hon’ble Apex Court while hearing a petition in Youth Bar Association of India vs. Union of India & Others has issued mandatory guidelines to law keeping agencies with regard to sharing the FIR with the persons implicated therein. To those who do not function in the realm of legal world, an FIR (First Information Report) is nothing but the first report of an incident which discloses the commission of an offence and which sets the criminal law into motion. In other words it is the FIR which lays the foundation for a proper criminal investigation. It is not necessary that an aggrieved person or a victim should file an FIR. Anyone who has any kind of information about any criminal incident may lodge a report of the same before a Police officer. There are nuances and guidelines that have to be scrupulously followed in matters of lodging and receiving FIR and the actions to be taken thereafter but that is a separate discussion altogether. What must however be clear to everyone is the great significance of an FIR for both, the informant / victim and the accused. It was naturally thus always a subject of debate as to whether in an environment where we are striving for greater information sharing and accountability, it was being unfair to the accused persons to keep them away from knowledge of a potential criminal litigation implicating them. In my considered view it was. Subject ofcourse to certain obvious exceptions such as matters of national security, terrorism, crimes against women (where the identity of a victim is of paramount consideration keeping in view her dignity sought to be protected) any and all possible accusations against a person should be available to his access.

After this verdict, which marks 15.11.16 as the final date for implementation, every Police Station shall be bound to give, within 24 hours, a copy of the FIR to the accused if the latter files for its copy either himself or through his agent. The Courts shall also be bound to supply the same within 2 working days.

The copies of FIR shall have to be uploaded on the Police website and /or the State Govt.’s website within 24 hours of its registration. This shall enable the accused to download an FIR against him and take timely steps for his defence or redressal. Exceptions are FIRs pertaining to sexual offences, sexual offences against children, terrorism, insurgency and of other sensitive category.

If a copy of FIR is not provided by the Police to an accused then he can approach the Superintendent of Police with his grievance and it shall be addressed within 3 days. Be it noted that when Police denies to give copy of FIR, it is always open to the person to move the Court where it has been sent to. Since as per law every FIR’s copy is mandatorily sent to the Magistrate’s Court after registration. Hence the accused can always also alternatively approach the Court for a copy.

Ofcourse an FIR being a public document (as per the definition of the term in the Evidence Act) information can be obtained about it by way of RTI Act. However that would only be information as sought for which is sometimes vitally different from the copy of the document itself. Further, an RTI application may be denied information on the grounds that it would hamper investigation. Hence, the Supreme Court verdict in Youth Bar Association of India has opened to the public realm what used to be a much clandestine area in the criminal justice delivery system. The only thing that troubles my mind is the consequences, both personal and larger, of having a FIR registered against me available to the viewing of the whole world. But then I recall the principles that run any welfare nation, ones that call upon its subjects to relinquish a part of their individual comforts when something sacred is sought to be achieved for the community at large.

We live in strange times, difficult no less where a part of our civilization is fighting hard to emancipate us and the other is applying its resources, for reasons best known to it, to offset that endeavor. Wholeheartedly pledging to the deeper spirit of the verdict and the benefits it aims to usher for the honest and the innocent against unscrupulous attempts against their liberties, I beseech my fellow citizens to honor that spirit and espouse what it seeks to redress and improve, an act which after all is only our solemn duty

P.S.    Readers are requested to peruse the Judgment for complete information.

Supreme Court Propounds New Doctrine On Media Regulation

It is called the "Doctrine Of Postponement". The Hon'ble Apex Court has yesterday held that "An accused or an aggrieved person, who genuinely apprehends an infringement of rights guaranteed under Article 21 of our Constitution can seek postponement of publication." The Hon'ble Court was dealing with the dispute between the Sahara Group and market regulator SEBI, when a complaint was filed against breach of confidentiality during the pendency of the dispute in Court. It was alleged that certain sensitive confidential documents regarding the dispute were allegedly leaked and telecast. Adjudicating upon the complaint, the Hon'ble Court has laid down its observations. The Hon'ble Chief Justice of India, Sri S.H. Kapadia, observed that "Finding an acceptable constitutional balance between the freedom of press and administration of justice is a difficult task in every legal system." He also recalled the observation made by the Hon'ble Court in 1977 in the case of State of Maharashtra Vs. R.J. Gandhi that "A trial by press, electronic media or public agitation is the very antithesis of rule of law."

While allowing liberty to the accused to move Courts for postponement of publication of his case the Court also laid down a caveat that "Such orders of postponement should be for short duration and should be applied only in cases of real and substantial risk of prejudice to the proper administration of justice or to the fairness of trial."..."Reasonable restrictions on reporting of Court proceedings are needed for societal interest and this doctrine of postponement is one of neutralizing technique." It further observed that "Orders of postponement should be ordered for a limited duration and without disturbing the content of the publication... The order of postponement will only be appropriate in cases where the balancing test otherwise favours non-publication for a limited period,"

This doctrine is aimed at balancing the right of an accused to be presumed innocent till completion of trial with the media's right to freedom of expression.

It is pertinent to mention here that the Supreme Court refused to frame guidelines for media reporting of court trials but said higher judiciary could impose a temporary freeze on coverage if it was convinced that reporting in a case thus far had harmed the right of the accused to fair trial.

"The Doctrine of Postponement will serve as a lakshman rekha for the journalists and warn them not to cross it," the CJI said while reading out the judgment. The bench said when there was conflict between two weighty rights - right to dignity and right to presumption of innocence guaranteed under Article 21 and right to free speech under Article 19 - the right to free speech must give way to right to life as in India, the right under Article 19(1)(a) was not an absolute one. And ofcourse the media will have the right to appeal against postponement orders.

Information Courtesy - Times Of India

Read for more analysis on media trial :-

 (On free speech, media trial & prejudice ) and

(On delays in justice, revelations about judicial process & more on free speech, role of media & prejudice...)

Supreme Court Settles The Law on Anticipatory Bail

Before I inform my dear readers about the captioned development, I must explain to them what is anticipatory bail in the first place. Law provides for curtailment of liberty by way of arrest in certain prescribed scenarios. Bail is the security that a person is directed to give to the Court / releasing authority in lieu of the conditional freedom he is granted from such curtailment. Bail may be granted with or without surety (guarantor). Now this naturally means that the question of bail arises only when a person is in custody and he seeks to get out of the same. But in case of anticipatory bail, a person applies for bail, even before he is arrested, in anticipation of such arrest. The relevant provision of law is laid down in Section 438 of our Code of Criminal Procedure. It basically says that whenever a person apprehends or has reasons to believe that he is likely to be arrested on suspicion of him having committed a non bailable offence then he can apply either to the Court of Sessions or to the High Court, for issuing a direction that in the event of his arrest he shall be released on bail. Then the concerned Court, after taking into consideration the facts and circumstances of that case, may decide accordingly.  It needs to be understood that this provision exists to prevent so far as possible malicious arrests and frivolous detention which are politically motivated either to humiliate or to injure the reputation of the concerned person.

A Court while considering an application for anticipatory bail usually weighs the following factors:-

• the nature and gravity or seriousness of the accusation as apprehended by the applicant
• the antecedents of the applicant including the fact as to whether he has, on conviction by a Court, previously undergone imprisonment for a term in respect of any cognizable offence 
• whether motive behind the accusation is to humiliate or malign the reputation of the applicant by having him arrested 

Yesterday the Hon'ble Apex Court has settled a long debated issue as to whether anticipatory bail should or should not be granted to absconders and persons who flee beyond the reach of the investigative agency even before their arrest. The Hon'ble Court held that no court should grant anticipatory bail to a person who had been declared an absconder either during the investigation or during the trial.

Writing the judgment for the bench, Justice Sathasivam agreed with the proposition of additional solicitor general Siddharth Luthra and said, "We reiterate that when a person against whom a warrant has been issued and is absconding or concealing himself in order to avoid execution of warrant and is declared as a proclaimed offender in terms of Section 82 of the Criminal Procedure Code, is not entitled to the relief of anticipatory bail."  The case related to the alleged suicide of Vibha in her in-law's house in Punjabi Bagh, New Delhi, on September 1 last year. She was married on January 19, 2010. The bench said the allegations levelled against the accused persons, including the husband's brother, was that they subjected Vibha to cruelty demanding sizeable amount in order to settle the payment of Rs 5 lakh for the flat allotted by Delhi Development Authority.






*Information Courtesy - The Times Of India

Supreme Court Thrashes Media Coverage of 26/11 Incident

While we are hailing the prevalence of justice, in the Kasab episode, let us also take a moment's time to consider what the Hon'ble Supreme Court has said about the manner in which media covered the story and broadcast it over their channels. Now, there cannot be any double standard in accepting the verdict which the Apex Court has handed in Ajmal Kasab's case by upholding the death sentcence awarded to him by the Hon'ble Bombay High Court. One has to therefore also pay attention and weightage to other related observations made by Hon'ble Justice Aftab Alam and Hon'ble Justice C.K. Prasad while delivering their judgment. They came down heavily on the media and made a scathing criticism of the electronic media's "reckless coverage" of the 26/11 Mumbai attacks and observed that instead of serving the interests of the nation, T.V. channels made it difficult for the security forces to fight back. Live telecast of the operations could have even resulted in security personnel suffering casualties, they added.

Taking note of the tapped conversations between the attackers and their collaborators across the border, the court said "coverage helped the assailants counter security movements as their positions were being reported live."  " The operational movements were being watched by the collaborators across the border on TV screens and being communicated to the terrorists," the court added. On the other hand security forces had no means to know terrorists' exact position or even the kind of firearms and explosives they possessed. "Any attempt to justify the conduct of the TV channels by citing the right to freedom of speech and expression would be totally wrong and unacceptable in such a situation. The freedom of expression, like all other freedoms under Article 19, is subject to reasonable restrictions," the bench remarked.

Ripping into the minute-by-minute coverage of the “enemy action,” the bench held that “by covering live the terrorist attack on Mumbai in the way it was done, the Indian TV channels were not serving any national interest or social cause”. The channels, the judges said, “were acting in their own commercial interests putting the national security in jeopardy”. Backing the contention of security agencies and the evidence they had gathered, the court said that the live telecast gave the attackers an edge as their handlers in Pakistan watched the movement of security forces and alerted the terrorists by phone. It underlined that all channels were competing with each other in showing the latest developments, including the positions and movements of security forces.

These shots and visuals could have been telecast after all the terrorists were neutralised and the security operations were over, the court added. “But, in that case the TV programmes would not have had the same shrill, scintillating and chilling effect and would not have shot up the TRP ratings of the channels,” it said.   The coverage of the Mumbai terror attack by the mainstream electronic media has done much harm to the argument that any regulatory mechanism for the media must only come from within," the bench further observed.  It is in such extreme cases that the credibility of  an institution is tested." 

(Information Courtesy: Indian Express and Hindustan Times)