Significant Judgments
JUSTICE S.K. PANIGRAHI
The petitioner in this case had alleged she was subject to rape following which she became pregnant and approached the police station for termination of pregnancy, where she was directed to the concerned Court. Her petition under Section 3 of the Medical Termination of Pregnancy Act, 1971for abortion was rejected on 09.07.2021on grounds of lack of jurisdiction and because the allegation of rape had not been proved till then. Hence, the petitioner approached this Court to assail the order. The term of her pregnancy as per a radiological report dated 06.10.2021 was determined to be 26 weeks and 4 days +/- 2 weeks.
The Court in this case considered whether a termination of pregnancy was legally possible at that stage.They referred to a multitude of judgements including that of Suchita Srivastava &Anr v. Chandigarh Administration, (2009) 9 SCC 1, amongst others which made clear that pregnancy could only be terminated if there was danger to mother or medical abnormality in child. Here, since there was no medical opinion that termination of pregnancy was immediately necessary to save the life of the petitioner, and since the gestational age was beyond the statutory requirement, it was observed that a termination was not permitted under MTP Act.The Court further noted that police officers could have directed petitioner to Legal Service Authority which might have helped her avoid forced delivery, also emphasising on the role of the legal services authority to coordinate with police in enabling legal assistance at all police stations.
Due to the aforesaid reasons, the Court decided it could not permit termination of pregnancy. However, it directed the District Collector, Cuttack to ensure that arrangements were made for the pregnancy and also directed the State Legal Services Authority to ensure that the State paid an amount of Rs.10,00,000/- as compensation to the victim.
The petitioner in the present case had filed an application seeking bail in a case where he was the accused in connection with the alleged commission of offence punishable under Section 395 of the IPC. The previous bail applications moved by the petitioner mainly on the ground that if the petitioner is enlarged on bail, it would hamper the investigation. Aggrieved by the order, the petitioner approached this Court.It was then found that the affidavit accompanying the petition had been filed by the advocate’s clerk who had sworn that he was looking after the case on behalf of the petitioner.
The Court observed that there had been a growing trend of advocates’ clerks signing affidavits for applications/petitions etc. imperviously and oblivious to the contents in it. They noted that since a clerk has no means of having any personal knowledge with respect to the facts in an original petition, the question of him being permitted to file an affidavit does not arise.The Court then expounded on the relevance of Affidavit in both the procedural codes in India, referring to the cases of Padmabati Dasi v. Rasik Lal Dhar, (1910) ILR 37 Cal 259, State of Bombay v. Purushottam Jog Naik, AIR 1952 SC 317, Amar Singh v. Union of India, (2011) 7 SCC 69, noting that affidavits are to be strictly observed and should clearly express knowledge and grounds of belief and perfunctory affidavits not in compliance with Rule 3 of Order 19 of CPC were thus to not be entertained. The Court also observed that the question of whether an advocate’s clerk is empowered to swear an affidavit was thoroughly discussed in the leading cases of Smt. Savitramma v. Cicil Naronha and Anr, 1988 Supp SCC 655, and Someswar Gogoi v. State of Assam, 1988 SCC On Line Gau 10, where it was held that such affidavits were wholly improper, inadmissible and liable to be rejected.
In light of the above, the Court thus found the practice of advocate’s clerks filing affidavits to be unacceptable and directed the Registry to ensure that steps are taken forthwith to stop the practice of accepting such affidavits which form part of petitions/applications under the original jurisdiction of the Court, made in gross violation of Rule 26 of the Orissa High Court Rules. The Court also dismissed the Bail Application deeming it to be defective.
The facts of the case are such that Rama Dharua’s (informant) niece Ghulikhai @ Nidra Majhi was staying with him after the death of her mother for the last eight years. On 01.12.2008, the family had dinner and retired to bed. Early in the morning, to the utter dismay of the family, they found that their niece was missing. They searched in the village and inquired with their relatives, but failed to trace the whereabouts of their niece. Accordingly, on 02.12.2008 the informant reported the same to the police, and an FIR was registered. On the night of 3.12.2008, his son-in-law one Dullabha Majhi who was living with the informant due to the harvesting season confided him that one DamaPradhani (appellant) of his village had confessed before him that he had committed the murder of the deceased and concealed the dead body. Therefore, the informant suspected DamaPradhani to have murdered the deceased and passed on the information to the Police. While in police custody, the appellant allegedly confessed to having committed the crime by strangulating the deceased and having concealed the dead body in Gadiajore Nala. Upon arrival at the Gadiajore Nala, the body of the deceased was found floating and the same was immediately recovered. With the semen sample being taken, the appellant was arrested.
The evidence was an extrajudicial confession of the accused-appellant and does not inspire confidence. The motive of the appellant to murder the deceased is not proven beyond reasonable doubt and medical reports had not definitively indicated that the death of the deceased was caused by lungi which was recovered. The lungi in itself might also not have been linked to the appellant. Viscera, although preserved, had not been sent for chemical examination, so it was held that the appellant be acquitted. Reading Case of (2013) 12 SCC 503: Tejinder Sing v. the State of Punjab; (2012) 6 SCC 403: Sahadevan v. State of Tamil Nadu (2012) 6 SCC 403 and the Indian Evidence Act, the Court contended that the essential ingredient is that the information given by the accused must lead to the discovery of the fact which is the direct outcome of such information, which in this case wasn’t happening.
