1 ROLE OF JUDICIARY ON HUMAN TRAFFICKING: SOME CHALLENGES Dr. H.T.C. Lalrinchhana Senior Civil Judge Aizawl :: MizoramFAILURE TO IMPOSE HARSH PUNISHMENT AS EXPECTED Punishment not prescribed under the statutory rules cannotbe imposed……. Likewise, a person should not be made to sufferpenalty except for a clear breach of existing law [Vide, In VijaySingh vs State Of U.P.& Ors. decided on 13th April, 2012 inconnection with Civil Appeal No. 3550 of 2012 (Arising out ofSLP(C) No. 27600 of 2011) by the Supreme Court]HYPER TECHNICALITIES OF CRIMINAL PROCEDURE Right to fair trial and presumption of innocence is primefactor for criminal trial [Vide, In State Of Rajasthan vs SheraRam @ Vishnu Dutta decided on 1st December, 2011 inconnection with Criminal Appeal No. 1502 of 2005 by theSupreme Court] "It is fundamental principle of criminal jurisprudence thatan accused is presumed to be innocent and therefore, the burdenlies on the prosecution to prove the guilt of the accused beyondreasonable doubt.” [Vide, In Dahyabhai Chhaganbhai Thakkarv. State of Gujarat, AIR 1964 SC 1563]DOCTRINE OF ‘BENEFIT OF DOUBT’ In criminal cases, the rule is that the accused is entitled tothe benefit of doubt. If the court is of the opinion that on theevidence two views are reasonably possible, one that theappellant is guilty, and the other that he is innocent, then thebenefit of doubt goes in favour of the accused [Vide, InK.P.Thimmappa Gowda vs State Of Karnataka decided on 4April, 2011 in connection with Criminal Appeal No. 1499 of 2004by the Supreme Court]
2ESSENCE OF ‘MENS REA’ IN CRIME To commit a criminal offence, mens rea is generally taken tobe an essential element of crime [Vide, In State Of Rajasthan vsShera Ram @ Vishnu Dutta decided on 1 December, 2011 inconnection with Criminal Appeal No. 1502 of 2005 by theSupreme Court]LIBERAL JURISPRUDENCE ON BAIL In the case of Deepak Bajaj Vs. State of Maharastra &Anr. under Writ Petition (Crl.) No. 77 of 2008 decided on 12 thNovember, 2008, the Hon’ble Apex Court held that- “reputation of a person is a facet of his right to life under Article 21 of the Constitution…. If a person is sent to jail then even if he is subsequently released, his reputation may be irreparably tarnished” In Rasiklal Vs. Kishore s/o Khanchand Wadhwaniarising out of S.L.P. (Criminal) No. 4008 of 2008) decided onFebruary 20, 2009, Hon’ble Apex Court has held thus- “6. ……There is no doubt that under Section 436 of the Code of Criminal Procedure a person accused of a bailable offence is entitled to be released on bail pending his trial. As soon as it appears that the accused person is prepared to give bail, the police officer or the court before whom he offers to give bail, is bound to release him on such terms as to bail as may appear to the officer or the court to be reasonable. It would even be open to the officer or the court to discharge such person on his executing a bond as provided in the Section instead of taking bail from him.”REMAND OF ACCUSED INTO JUDICIAL CUSTODY In Manubhai Ratilal Patel Tr. Ushaben vs State OfGujarat & Ors. decided on 28 September, 2012 in connectionwith Criminal Appeal No. 1572 of 2012 (Arising out of S.L.P.(Criminal) No. 6468 of 2012), the Supreme Court has held thus-
3 “24. The act of directing remand of an accused is fundamentally a judicial function. The Magistrate does not act in executive capacity while ordering the detention of an accused. While exercising this judicial act, it is obligatory on the part of the Magistrate to satisfy himself whether the materials placed before him justify such a remand or, to put it differently, whether there exist reasonable grounds to commit the accused to custody and extend his remand. The purpose of remand as postulated under Section 167 is that investigation cannot be completed within 24 hours. It enables the Magistrate to see that the remand is really necessary. This requires the investigating agency to send the case diary along with the remand report so that the Magistrate can appreciate the factual scenario and apply his mind whether there is a warrant for police remand or justification for judicial remand or there is no need for any remand at all. It is obligatory on the part of the Magistrate to apply his mind and not to pass an order of remand automatically or in a mechanical manner.”COMPLAINANT AS INTERESTED WITNESS In Mukut Bihari & Anr. vs State Of Rajasthan decided on25 May, 2012 in connection with Criminal Appeal No. 870 of2012, the Supreme Court has held that- “The complainant is an interested and partisan witness concerned with the success of the trap and his evidence must be tested in the same way as that of any other interested witness and in a proper case the court may look for independent corroboration before convicting the accused person. (Vide: Ram Prakash Arora v. The State of Punjab AIR 1973 SC 498; Panalal Damodar Rathi v. State of Maharashtra AIR 1979 SC 1191; Suraj Mal v. The State (Delhi Admn.) AIR 1979 SC 1408; Smt. Meena Balwant Hemke v. State of Maharashtra AIR 2000 SC 3377; T. Subramanian v. The State of T.N., AIR 2006 SC 836; A. Subair v. State of Kerela (2009) 6 SCC 587; State of Maharashtra v. Dnyaneshwar Laxman Rao Wankhede (2009) 15 SCC 200; C.M. Girish Babu v. CBI, Cochin, High Court of Kerala, AIR 2009 SC 2022; and State of Kerala and Anr. v. C.P. Rao (2011) 6 SCC 450)”
4REPORT OF ARREST TO THE COURT: The Hon’ble Gauhati High Court in connection with PIL No.50/2004 decided on 30-08-2009 held by the Hon’ble Mr.Justices Ranjan Gogoi and B.P. Katakey that “At this stage we deem appropriate to caution the investigating officers of the cases in question that under the law while arresting any accused the reasons/grounds for arrest should be recorded and forwarded to the competent court at the time when the accused is forwarded to such court. We are confident that the investigating officers will follow the aforesaid procedure prescribed while making arrest, if any in connection with any of the cases in question”FAIR INVESTIGATION IS A PART OF FUNDAMENTAL RIGHTS In Hema vs State Tr.Insp.Of Police Madras decided on 7January, 2013 in connection with Criminal Appeal No. 31 of2013 (Arising out of S.L.P. (Crl.) No. 9190 of 2011), the SupremeCourt has held that- “8) It is settled law that not only fair trial, but fair investigation is also part of constitutional rights guaranteed under Articles 20 and 21 of the Constitution of India. Accordingly, investigation must be fair, transparent and judicious and it is the immediate requirement of rule of law……”LIABILITIES OF POLICE IN MALICIOUS PROSECUTION There is no law protecting a police officer who takes part inthe malicious prosecution [Vide, In Lalita Kumari vs Govt.OfU.P.& Ors. decided on 27 February, 2012 in connection with WritPetition (Crl.) No.68 of 2008 by the Supreme Court]
5NO COURT HAVE A SUO MOTU POWERS EXCEPT WRITCOURTS As per section 16 of the Immoral Traffic (Prevention) Act,1956, the Magistrate can direct the Police Officer not below therank of Sub-Inspector to rescue of person from brothel butsubject to the provisions of sections 17 and 17A of the Act. Themagistrate is also vested power to closure of brothel and evictionof offenders from the premises under section 18 of the Act. Themagistrate is further bestowed power to remove of prostitute fromany place by virtue of section 20 of the Act. All the above powerscan also be exercised on receiving a satisfactory and bonafidecomplaint.ADMINISTRATION OF JUSTICE IN THE TERRAIN: MILESAHEADFamily Courts: In terms of the provisions of the Family Courts Act, 1984and the Mizoram Family Courts Rules, 2008, on 10 th March,2010, the Government of Mizoram in consultation with theGauhati High Court established Family Court at Aizawl for theadministrative districts of Aizawl, Serchhip and Mamit. FamilyCourt at Lunglei for the administrative district of Lunglei whichexcludes the administrative districts of Lawngtlai and Saiha.Family Court at Kolasib for the administrative district of Kolasiband Champhai for the administrative district of Champhai. [Vide,Notification No. A. 12011/39/2008- LJE, the 10 th March, 2010published in the Mizoram Gazette, Extra Ordinary Vol. XXXIX23-03-2010 Issue No. 77]. No family courts to handle disputes for family friendly stillexisted.Human Rights Court: All Judicial Officers in the Grade- I (District Judge Cadre) ofthe Mizoram Judicial Service were designated as Judge, HumanRights Court under the Protection of Human Rights Act, 1993.Vide, Notification No. A. 12035/1/2008- LJE, Dated Aizawl, the
616th December, 2010 published in the Mizoram Gazette, ExtraOrdinary, Vol. XL. Dt. 7.1.2011, Issue No. 4. Again, Court of District & Sessions Judge, Aizawl for theadministrative districts of Aizawl, Kolasib, Mamit, Champhai andSerchhip and Court of District & Sessions Judge, Lunglei foradministrative districts of Lunglei, Lawngtlai and Saiha arealready identified as Human Rights Court in terms of theProtection of Human Rights Act, 1993 under Notification No. A.45011/1/2008-LJE, the 8th Feb., 2012 [Vide, the MizoramGazette, Ext. Ordinary; Vol. XLI. 14.2.2012, Issue No. 69] Meanwhile, till date no cases remain instituted under thiscourt.Special Courts under the Protection of Children from SexualOffences Act, 2012 (Act No. 32 of 2012) No courts remain constituted/identified to trial cases underthe Protection of Children from Sexual Offences Act, 2012 tilldate.