Case BriefsSupreme Court

Supreme Court: In a 38 year old case relating to murder the 3-Judge Bench of Rohinton Fali Nariman, Hemant Gupta* and B.R. Gavai, JJ., had held

“The ossification test conducted in year 2020 when the appellant was 55 years of age cannot be conclusive to declare him as a juvenile on the date of the incident.”

The instant appeal had been preferred against the order of High Court of Judicature at Allahabad, wherein the Court had dismissed the appeal filed by the appellant against his conviction under Section 302 read with Section 34 of Penal Code, 1860. The appellant had reached the Supreme Court with the contention that he was juvenile on the date of incident i.e. 20-07-1982. In support of plea of juvenility, he had relied upon family register maintained by the Panchayat, Aadhaar Card and an order passed by the High Court in the year 1982 by which the High Court had granted him bail on the basis of report of the Radiologist that the age of the appellant at that time was between 15½ – 17½ years.

Later on, perusal to an order of Supreme Court a Medical Board consisting of five doctors was constituted which had opined in the report dated 08-09-2020 that at present the age of applicant was around 40-55 years. Relying on the said report the High Court opined that,

“The occurrence took place on 20-07-1982 i.e. 38 years ago. When age of the appellant is determined on all hypothetical calculations i.e. (55-38=17 years) (40-38= 2 years) and taking the average of difference between maximum and minimum age i.e. 48-38 = 10 years, then it falls below 17 years.”

The Bench reiterated legal position that plea of juvenility could be raised at any stage even after finality of the proceedings before the Court. However, the Bench further observed that There were minor variations in law as the Rule 12(3) (a)(i) and (ii) of Rules, 2007 had been clubbed together with slight change in the language and Section 94 of the new Act did not contain the provisions regarding benefit of margin of age to be given to the child or juvenile as was provided in Rule 12(3)(b) of the Rules.

Reliance was placed on Mukarrab v. State of Uttar Pradesh, (2017) 2 SCC 210, wherein the Supreme Court while observing that, a blind and mechanical view regarding the age of a person could not be adopted solely on the basis of the medical opinion by the radiological examination, had held that,

“The ossification test cannot be regarded as conclusive when the appellants have crossed the age of thirty years.”

Since the medical report in support of the bail order was not available, the Bench stated that such order granting bail could not be conclusive determination of age of a person.

Determination of Age in the absence of conclusive Proof

First attempt to determine the age was by assessing the physical appearance of the person when brought before the Board or the Committee. In case of a person around 18 years of age, the ossification test could be said to be relevant for determining the approximate age of a person in conflict with law. However, when the person was around 40-55 years of age, the structure of bones could not be helpful in determining the age.

In Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal, (2020) 7 SCC 1, the Supreme Court had held that in context of certificate required under Section 65B of the Evidence Act, 1872, as per the Latin maxim, lex non cogit ad impossibilia, “law does not demand the impossible”. Thus, when the ossification test could not yield trustworthy and reliable results, such test could not be made a basis to determine the age of the person concerned on the date of incident. Therefore, in the absence of any reliable trustworthy medical evidence to find out age of the appellant, the Court stated that the ossification test conducted in year 2020 when the appellant was 55 years of age cannot be conclusive to declare him as a juvenile on the date of the incident.

Noticing that an application was submitted by the appellant himself for obtaining an Arms Licence prior to the date of the incident, where he had given his date of birth as 30-12-1961 which would make him of 21 years of age on the date of the incident i.e. 20-07-1982, the Court opined that,

“The appellant could not be treated to be juvenile on the date of incident as he was more than 21 years of age as per his application submitted to obtain the Arms Licence.”

Non Applicability of Falsus in Uno, Falsus in Omnibus in India

The Supreme Court in Ilangovan v. State of T.N., (2020)10 SCC 533, held, “The doctrine of Falsus in Uno, Falsus in Omnibus merely involves the question of weight of evidence which a court may apply in a given set of circumstances but it is not what may be called “a mandatory rule of evidence”. Therefore, merely because a prosecution witness was not believed in respect of another accused, the testimony of the said witness could not be disregarded qua the present appellant as the said maxim was not applicable in India. Further, it was not necessary for the prosecution to examine all the witnesses who might have witnessed the occurrence.

Hence, in the light of above considerations and the fact that the Trial Court as well as the High Court had appreciated the entire evidence to return a finding of guilt against the appellant, the instant appeal was dismissed.

[Ram Vijay Singh v. State of U.P., 2021 SCC OnLine SC 142, decided on 25-02-2021]


Kamini Sharma, Editorial Assistant has put this report together 

*Judgment by: Justice Hemant Gupta

Know Thy Judge| Justice Hemant Gupta

Appearance before the Court by:

For the Appellant: Senior Advocate Gopal Sankaranarayanan and Advocate Pranav Sachdeva

For the Respondent: Advocate Goel

Case BriefsHigh Courts

Karnataka High Court: A Division Bench of Alok Aradhe and Nataraj Rangaswamy, JJ., disposed of the appeal after modifying the compensation.

The facts of the case are such that the deceased Sanjeev M Patil was crossing the road as a pedestrian at 6:00 am in morning when a bus being driven in a rash and negligent manner by its driver dashed against the deceased as a result the deceased received grievous injuries and succumbed to the same. The claimants filed a petition seeking compensation which was thereby granted keeping in mind his young age and monthly income. Aggrieved by the same, the present appeal was filed.

Counsel for appellants submitted that the Tribunal has erred in its judgment and the accident took place 75 meters from the toll booth and that the deceased suddenly tried to cross the road without observing the vehicles approaching the toll counter. It was also submitted that there is a gross error in assessing the monthly income and compensation is excessive.

Counsel for the respondents submitted that as per an independent eye witness it is clear that the accident happened due to the rash and negligent driving of the bus by the driver and the monthly income calculated is correct as the deceased was a permanent employee and infact sums awarded under the heads “loss of consortium” and “loss of love and affection” are on the lower side and deserves to be enhanced suitably.

The Court relied on judgment Mangala Ram v. Oriental Insurance Co., (2018) 5 SCC 656 and observed that the proceeding under the Act has to be decided on the basis of preponderance of probabilities and the claimant is not required to prove the accident beyond reasonable doubt.

The Court thus held that “he Tribunal on meticulous appreciation of the evidence on record as well as on the basis of preponderance of probabilities has rightly held that the accident occurred on account of the negligence of the driver of the KSRTC bus.”

On the question of amount of compensation the Court held that after perusing the salary slip and income tax return statements and keeping in mind the future aspects the compensation was modified.

In view of the above, appeal was disposed off.[Gowri S. Patil v. Divisional Controller, 2021 SCC OnLine Kar 447, decided on 04-02-2021]


Arunima Bose, Editorial Assistant has put this story together.

Op EdsOP. ED.

Introduction

Summary judgment, as the combination of two words suggests, is an outcome of a case decided summarily, based on the documentary evidence produced before the Court by the parties, without going for recording of the oral evidence. The cause of action for filing the application under Order XIII-A[1] of the Code of Civil Procedure, 1908 (in short “the Code”), as inserted by the Commercial Courts Act, 2015 (in short “the Act”), arises only when the summons are served upon the defendant. The Order is applicable to both the parties to the litigation. It is not limited to the claim of the plaintiff, rather it is extended to the counterclaim filed by the defendant as well. Application by a party for the summary judgment is filed not merely for deciding a claim or counterclaim but also to seek answer of any particular question on which the claim depends.

The High Court of Delhi, in Oxbridge Associates Ltd.  v. Atul Kumra[2], has held that “an application is not essential to seek the summary judgment and the Court, on its own or on the asking of either party, is entitled to see/adjudicate, whether a case for summary judgment is made out.” The Court further observed that the Delhi High Court (Original Side) Rules, 2018, in Chapter X-A thereof, also provides for summary judgment and does not provide for any application to be moved. The Law Commission has also discussed this concept and made certain recommendations in its 253rd Report[3].

253rd Law Commission Report

In pursuant to the Law Commission’s 188th Report[4] wherein necessity for commercial courts was expressed, the Law Commission further, in its 253rd Report, submitted that a new procedure for “summary judgment” be introduced to permit the courts to decide a claim pertaining to any commercial dispute without recording oral evidence, as long as the application for summary judgment has been filed before the framing of issues. Courts are also to be empowered to make “conditional orders” wherever necessary.

 Intention and Objective 

The Supreme Court, in Ambalal Sarabhai Enterprises  v. K.S. Infraspace Llp,[5] has held:

“… Keeping in view the object and purpose of the establishment of the commercial courts and fast tracking procedure provided under the Act, the statutory provisions of the Act and the words incorporated thereon are to be meaningfully interpreted for quick disposal of commercial litigations so as to benefit the litigants especially those who are engaged in trade and commerce which in turn will further economic growth of the country.”

The Division Bench of the Madras High Court, in Syrma Technology Pvt. Ltd. v. Powerwave Technologies Sweden AD [6], has held

11. … the Commercial Courts Act has been introduced with the intention to give qualitative and quantitative decisions. Interestingly, the enactment fixes responsibility on all the stakeholders, including judiciary, in achieving the avowed object.”

The Delhi High Court further held, in Bright Enterprises Pvt. Ltd.  v. MJ Bizcraft LLP [7],

“ …from the provisions laid out in Order XIII-A, it is evident that the proceedings before Court are adversarial in nature and not inquisitorial. It follows, therefore, that summary judgment under Order XIII-A cannot be rendered in the absence of an adversary and merely upon the inquisition by the Court.”

In order to have a better understanding of the concept, it will be pertinent to have a look at some of the provisions concerned under the Code and their interpretation.

Statutory Provisions for Summary Judgment

A. Rule 1 of Order XIII-A of the Code sets out the procedure by which the Courts may decide a claim pertaining to any commercial dispute without recording oral evidence. Sub-rule (2) for the purpose of this order includes the word “claim”;

i) part of a claim;

ii) any particular question on which the claim (whether in whole or in part) depends; or

iii) a counterclaim.

Sub-rule (3) clarifies that no application for summary judgment can be filed in a summary suit in respect of any commercial dispute originally filed under Order XXXVII of the Code.

B. Rule 2 of Order XIII-A of the Code provides that an application for the summary judgment can be filed any time after the service of the summons has been served upon the defendant. Proviso to the clause reads that no application for summary judgment may be made after issues are framed by the Court. The High Court of Madras has held, in Syrma[8]:

“Thus, if one reads the provision as a whole, what emerges is that an application may not be filed after framing of the issues. The first part speaks of the entitlement to file an application and the second is the outer limit. Although, the legislation uses the words ‘may’, one has to see the preceding words, ‘no application for summary judgment‘.. The power being discretionary, it has to be exercised before the framing of issues. The reason being that once issues are framed and taken note of to be answered, regular trial is the way out.”

(emphasis added)

One may argue that the defendant may file an application for summary judgment under the above said order after receiving the summons under sub-clause (b) of clause 2 of sub-rule (1) of Rule 1 of Order XIII-A of the Code. However, filing the same will not entitle him to claim an extension of the time period, statutorily fixed for filing the Written Statement.

The Division Bench of the High Court of Delhi has held in Bright Enterprises[9] :

“…the provisions related to summary judgment, which enables courts to decide claims pertaining to commercial disputes without recording oral evidence, are exceptional in nature and out of the ordinary course which a normal suit has to follow. In such an eventuality, it is essential that the stipulations are followed scrupulously, otherwise, it may result in gross injustice.”

C. Rule 3 of Order XIII-A of the Code laid down the following grounds for the summary judgment against a party on a claim when it considers that:

(a) the plaintiff has no real prospect of succeeding on the claim or the defendant has no real prospect of successfully defending the claim; and

(b) there is no other compelling reason why the claim should not be disposed of before recording of oral evidence.

To narrow down the grounds for summary judgment, the court, while deciding the said application, is required to disclose the grounds that the plaintiff has no real prospect of succeeding on the claim, or, the defendant has no real prospect of successfully defending the claim and also, that there is no other justifiable reason for keeping the claim alive and allowing the recording of oral evidence.

The High Court of Delhi has held in Su-Kam Power Systems Ltd. v. Kunwer Sachdev[10]:

91. Rule 3 of Order XIII-A CPC, as applicable to commercial disputes, empowers the court to grant a summary judgment against the defendant where the court considers that the defendant has no real prospects of successfully defending the claim and there is no other compelling reason why the claim should not be disposed of before recording of oral evidence. The expression “real” directs the court to examine whether there is a “realistic” as opposed to “fanciful” prospects of success. This Court is of the view that the expression “no genuine issue requiring a trial” in the Ontario Rules of Civil Procedure and “no other compelling reason…..for trial” in the Commercial Courts Act can be read mutatis mutandis. Consequently, Order XIII-A CPC would be attracted if the Court, while hearing such an application, can make the necessary finding of fact, apply the law to the facts and the same is a proportionate, more expeditious and less expensive means of achieving a fair and just result.

92. Accordingly, unlike ordinary suits, courts need not hold trial in commercial suits, even if there are disputed questions of fact as held by the Canadian Supreme Court in Robert Hryniak[11] , in the event, the Court comes to the conclusion that the defendant lacks a real prospect of successfully defending the claim.”

The High Court of Delhi, in an another case of Ambawatta Buildwell Pvt. Ltd. v. Imperia Structure Ltd.[12], has held:

“what has to be seen is, whether the defence pleaded, has any chance of succeeding in law and if the answer is in the negative, a decree on admissions or under Order XV of CPC or a summary judgment under Order XIII-A of the CPC as applicable to commercial disputes read with Chapter X-A of the Delhi High Court (Original Side) Rules, 2018, has to follow.”

D. Rule 4 of Order XIII-A of the Code laid down the following procedure for filing such application:

(1) An application for summary judgment to a court shall include the following matters:

(a) the application must contain a statement that it is an application for summary judgment made under this Order;

(b) the application must precisely disclose all material facts and identify the point of law, if any;

(c) in the event the applicant seeks to rely upon any documentary evidence, the applicant must,–

(i) include such documentary evidence in its application, and

(ii) identify the relevant content of such documentary evidence on which the applicant relies;

(d) the application must state the reason why there are no real prospects of succeeding on the claim or defending the claim, as the case may be;

(e) the application must state what relief the applicant is seeking and briefly state the grounds for seeking such relief.

The procedure is mandatory for both the parties to follow. The application must contain a statement that the said application is for summary judgment and also the reason as to why the party thinks that there are no real prospects of succeeding on the claim or defending the claim. It is further necessary for the parties to state the relief being sought from the court and the grounds for seeking such relief. It makes clearer that the applicant has to give the reasons for the relief being sought from the court.

(2) Where a hearing for summary judgment is fixed, the respondent must be given at least thirty days’ notice of:

(a) the date fixed for the hearing; and

(b) the claim that is proposed to be decided by the court at such hearing.

(3) The respondent may, within thirty days of the receipt of notice of application of summary judgment or notice of hearing (whichever is earlier), file a reply addressing the matters set forth in clauses (a) to (f) mentioned hereunder in addition to any other matters that the respondent may deem relevant:

(a) the reply must precisely–

(i) disclose all material facts;

(ii) identify the point of law, if any; and

(iii) state the reasons why the relief sought by the applicant should not be granted;

(b) in the event the respondent seeks to rely upon any documentary evidence in its reply, the respondent must–

(i) include such documentary evidence in its reply; and

(ii) identify the relevant content of such documentary evidence on which the respondent relies;

(c) the reply must state the reason why there are real prospects of succeeding on the claim or defending the claim, as the case may be;

(d) the reply must concisely state the issues that should be framed for trial;

(e) the reply must identify what further evidence shall be brought on record at trial that could not be brought on record at the stage of summary judgment; and

(f) the reply must state why, in light of the evidence or material on record if any, the Court should not proceed to summary judgment.

Once the application for summary judgment is filed, the respondent has to be given 30 days’ notice intimating him the next date fixed for the hearing and also the claim to be adjudicated upon. This Order casts a duty upon the respondent that the reply, among other things, must concisely state the issues that should be framed for trial and also identify what further evidence shall be brought on record at trial that could not be brought on record at the stage of summary judgment. Besides, the reply must also state as to why, in light of the evidence brought before it, the court should not proceed to issue a summary judgment. Onus has been shifted on the respondent, if he opposes the application for summary judgment, to file the proposed issues before the court. This will enable the court to verify the authenticity of the defence adopted by the respondent.

E. Rule 5 of Order XIII-A of the Code provides for evidences to be placed before the court for hearing of summary judgment and further clarifies that if a respondent in an application for summary judgment wishes to rely on an additional documentary evidence, he must file such documentary evidence and serve copies of such evidence to other parties to the application at least 15 days prior to the date of hearing. It has further provided that if the applicant to the summary judgment wishes to rely on documentary evidence upon respondent’s evidence then he must file it in his reply and serve on the respondent at least 5 days from the date of hearing. The parties are restrained from filing such documentary evidence again if the same has already been filed or served to the parties concerned.

F. Rule 6 of Order XIII-A of the Code provides the list of orders to be made by the court i.e.

(a) judgment on the claim;

(b) conditional order in accordance with Rule 7 of this Order;

(c) dismissing the application;

(d) dismissing part of the claim and a judgment on part of the claim that is not dismissed;

(e) striking out the pleadings (whether in whole or in part); or

(f) further directions to proceed for case management under Order XV-A.

It is clarified that the Court may pass any other order in addition to the above orders and the Court is also obliged to record the reasons for making the orders. The High Court of Madras has held in Syrma Technology[13]:

“ Thus, to conclude, we are of the view that when an application is filed under Order XIII-A, a court is expected to keep in mind the provisions contained in Order XIII-A Rules 6 and 7 before considering a summary judgment under Order XIII-A Rule 3. We are conscious that Order XIII-A Rule 6 also speaks of a judgment on the claim both part or full. Order XIII-A Rule 7, read with other modes mentioned under Order XIII-A Rule 6, act as contraceptive to grant of summary judgment under Order XIII-A Rule 3. The question as to whether the case is complicated or not is not the concern of the court especially in deciding an application filed invoking Order XIII-A CPC. Obviously, the respondent in the application has to produce his best evidence, which would be his “lead trump” as he would stand the chance of losing his case.”

G. Rule 7 of Order XIII-A of the Code talks about the conditional order. By conditional order, it means that when the court is of the opinion that a claim or defence may succeed but it is improbable that the court shall do so, the court may pass a conditional order as set forth in clause (b) of sub-rule (1) of Rule 6. At the time of making the conditional order, the court may:

(a) make it subject to all or any of the following conditions:

(i) require a party to deposit a sum of money in the court;

(ii) require a party to take a specified step in relation to the claim or defence; (iii) require a party to give such security or provide such surety for restitution of costs as the court deems fit and proper;

(iv) impose such other conditions, including providing security for restitution of losses that any party is likely to suffer during the pendency of the suit, as the court may deem fit in its discretion; and

(b) specify the consequences of the failure to comply with the conditional order, including passing a judgment against the party that have not complied with the conditional order.

The purpose of the conditional order is to safeguard the interests of the parties. The Madras High Court observed in Syrma[14]:

“This rule provides sufficient power to the court to pass a conditional order. This power has to be exercised when “it appears” to the court that it is possible that a claim or defence may succeed but it is improbable that it shall do so. If we read order XIII-A Rules 6 and 7 together, a clear picture would emerge. If it appears to the court that a claim or defence may succeed and it is also probable, then the application filed seeking a summary judgment will have to be dismissed. If it appears to the court that it is possible but improbable as stated in Rule 7 of Order XIII-A of the Code, then it may consider passing a conditional order. If the court considers that a plaintiff has no real prospect of succeeding on the claim or the defendant has no real prospect of successfully defending the claim there is no other compelling reason as to why the claim should not be disposed of before recording of oral evidence, it may give a summary judgment. Alternatively, the court can also consider striking out the pleadings either in whole or in part. This discretion is given to the court before deciding to give a summary judgment. Therefore, the court has to keep in mind and decide as to whether it is a fit case for striking out the pleadings dismissing an application and proceed further or a conditional order could be passed. After exhausting these stages, the question of granting a summary judgment would arise.”

It is relevant to point out that under Rule 8, the court is empowered to impose cost upon the defaulting parties as per the dynamic provisions incorporated under Sections 35 and 35- A of the Act[15].

Summary Judgment Vis-à-vis Judgment on Admission

The  High Court of Delhi, in Su-Kam Power Systems Ltd. v. Kunwer Sachdev [16], has held that the “ legislative intent behind introducing summary judgment under Order XIII-A of the Code is to provide a remedy independent, separate and distinct from judgment on admissions and summary judgment under Order XXXVII of the Code.”

Conclusion

The procedure given under Order XIII-A of the Code has the sole purpose to reduce the time period in deciding the commercial dispute of a specified value. It is not alien to say that the amendment in the Code is basically to strengthen the confidence of the merchant class in the fairness, transparency and effective justice delivery system. Loopholes exploited by some of the parties have also been taken care of in the present provision. Moreover, it can be noted that the special courts, that too, of District Judges, which are superior courts at the district level, have been designated to adjudicate the matters. The fact that trial is a default process in every civil suit has been done away with the insertion of Order XIII-A of the Code. Therefore, the intention of the legislature is to enable the courts to decide the commercial disputes of a specified value in a time bound and efficient manner.


*Author is a founding partner at Actus Legal Advocates and Associates. He may be contacted at rajnish@actuslegal.in

[1] Civil Procedure Code, 1908, Order XIII-A 

[2] 2019 SCC OnLine Del 10641

[3] Law Commission of India, 253rd Report on Commercial Division and Commercial Appellate Division of High Courts and Commercial Courts Bill, 2015 (January 2015) 

[4] Law Commission of India, 188th Report on Proposals for Constitution of Hi-Tech Fast — Track Commercial Divisions in High Courts  (December, 2003)

[5] 2019 SCC OnLine SC 1311

[6] Syrma Technology Pvt. Ltd. v. Powerwave Technologies Sweden AD,2020 SCC OnLine Mad 5737 

[7] 2016 SCC OnLine Del 4421

[8]  Syrma Technology Private Limited vs. Powerwave Technologies Sweden AD, 2020 SCC OnLine Mad 5737   

[9] 2016 SCC OnLine Del 4421

[10] 2019 SCC OnLine Del 10764

[11] Robert Hryniak v. Fred Mauldin, 2014 SCC OnLine Can SC 53

[12] 2019 SCC Online Del 8657 

[13]  Syrma Technology Pvt. Ltd. v. Powerwave Technologies Sweden AD, 2020 SCC OnLine Mad 5737   

[14] Ibid

[15] The Commercial Courts Act, 2015 [Act No. 04 of 2016]

[16] 2019 SCC OnLine Del 10764

Case BriefsSupreme Court

Supreme Court: The bench of Surya Kant and Aniruddha Bose, JJ has held that the strict principles of evidence and standards of proof like in a criminal trial are inapplicable in Motor Accident Claims cases.

“The standard of proof in such like matters is one of preponderance of probabilities, rather than beyond reasonable doubt. One needs to be mindful that the approach and role of Courts while examining evidence in accident claim cases ought not to be to find fault with non-examination of some best eye-witnesses, as may happen in a criminal trial; but, instead should be only to analyze the material placed on record by the parties to ascertain whether the claimant’s version is more likely than not true.”

The Court was hearing the case relating to an accident resulting into the death of a 34-year-old man named Sandeep who was survived by his wife widow, two minor children and a mother; all of whom were dependent on him. His dependents had claimed Rs 60,94,000 as compensation alleging, inter alia, that Sandeep died as a result of the injuries suffered in the abovementioned accident of 25.03.2009, which occurred due to the rash and negligent driving of one Sanjeev Kapoor, the owner­cum-driverof the car in which Sandeep was travelling.

Sanjeev disowned responsibility for the accident by asserting that it was the truck which was coming from the opposite side at a very fast speed, and was being driven in a rash and negligent manner.

According to an eyewitness, however, Sanjeev was driving the car at a very fast speed when it overtook a vehicle and collided head­on against the oncoming truck. The Credibility of the eyewitness was questioned.

Noticing that the eyewitness had, acting as a good samaritan and a responsible citizen, taken the injured persons to the hospital, the Court said that it is commonplace for most people to be hesitant about being involved in legal proceedings and they therefore do not volunteer to become witnesses. Hence, it is highly likely that the name of Ritesh Pandey or other persons who accompanied the injured to the hospital did not find mention in the medical record. There is nothing on record to suggest that the police reached the site of the accident or carried the injured to the hospital.

“Without any personal interest or motive, he assisted both the deceased by taking him to the hospital and later his family by expending time and effort to depose before the Tribunal.”

Further, it is quite natural that such a person who had accompanied the injured to the hospital for immediate medical aid, could not have simultaneously gone to the police station to lodge the FIR. Hence, the High Court ought not to have drawn any adverse inference against the witness for his failure to report the matter to Police especially when the police had themselves reached the hospital upon having received information about the accident.

Not impressed with the way the High Court had approached the matter, the Court said,

“Unfortunately, the approach of the High Court was not sensitive enough to appreciate the turn of events at the spot, or the appellant-claimants’ hardship in tracing witnesses and collecting information for an accident which took place many hundreds of kilometers away in an altogether different State.”

[Anita Sharma v. New India Assurance Co. Ltd., 2020 SCC OnLine SC 1002, decided on 08.12.2020]

Case BriefsSupreme Court

Supreme Court: The bench of AM Khanwilkar and Sanjiv Khanna, JJ has held that the true test of a valid FIR is only whether the information furnished provides reason to suspect the commission of an offence which the police officer concerned is empowered under Section 156(1) of the Criminal Code to investigate.

“The questions as to whether the report is true; whether it discloses full details regarding the manner of occurrence; whether the accused is named; or whether there is sufficient evidence to support the allegation are all matters which are alien to consideration of the question whether the report discloses commission of a cognisable offence.”

  1. FIR or the First Information Report, is neither defined in the Criminal Code nor is used therein, albeit it refers to the information relating to the commission of a cognisable offence. This information, if given orally to an officer in-charge of the police station, is mandated to be reduced in writing.
  2. The informant who lodges the report of the offence may not even know the name of the victim or the assailant or how the offence took place. Information to be recorded in writing need not be necessarily by an eye-witness, and hence, cannot be rejected merely because it is hearsay. Section 154 does not mandate nor is this requirement manifest from other provisions of the Criminal Code. Thus, at this stage, it is enough if the police officer on the information given suspects – though he may not be convinced or satisfied – that a cognisable offence has been committed.
  3. Section 154 of the Criminal Code, in unequivocal terms, mandates registration of FIR on receipt of all cognisable offences, subject to exceptions in which case a preliminary inquiry is required[1].
  4. There is a distinction between arrest of an accused person under Section 41 of the Criminal Code and registration of the FIR, which helps maintain delicate balance between interest of the society manifest in Section 154 of the Criminal Code, which directs registration of FIR in case of cognisable offences, and protection of individual liberty of those persons who have been named in the complaint.
  5. FIR is not an encyclopaedia disclosing all facts and details relating to the offence[2]. It is not meant to be a detailed document containing chronicle of all intricate and minute details. FIR is not even considered to be a substantive piece of evidence and can be only used to corroborate or contradict the informant’s evidence in the court[3].
  6. Even if information does not furnish all details, it is for the investigating officer to find out those details during the course of investigation and collect necessary evidence[4]. Thus, the information disclosing commission of a cognisable offence only sets in motion the investigating machinery with a view to collect necessary evidence, and thereafter, taking action in accordance with law.
  7. As per clauses (1) (b) and (2) of Section 157 of the Criminal Code, a police officer may foreclose an FIR before investigation if it appears to him that there is no sufficient ground to investigate. At the initial stage of the registration, the law mandates that the officer can start investigation when he has reason to suspect commission of offence.
  8. Requirements of Section 157 are higher than the requirements of Section 154 of the Criminal Code. Further, a police officer in a given case after investigation can file a final report under Section 173 of the Criminal Code seeking closure of the matter.

[Amish Devgan v. Union of India, 2020 SCC OnLine SC 994, decided on 07.12.2020]


[1] Lalita Kumari v. Government of Uttar Pradesh, (2014) 2 SCC 1

[2] Ibid

[3] Dharma Rama Bhagare v. State of Maharashtra, (1973) 1 SCC 537

[4] Superintendent of Police, CBI and Others v. Tapan Kumar Singh, (2003) 6 SCC 175

Hot Off The PressNews

The National Human Rights Commission, NHRC, India, in order to ensure effective prosecution leading to conviction in cases of sexual assault on women, has prepared a ‘Standard Operating Procedure (SOP) on Collection & Processing of scientific/forensic evidences.’ The SOP, prepared in consultation with medical experts, has been sent to the States/UTs for issuing instructions to all the officers concerned for implementation.

The SOP has been divided into seven sections of key operating procedures. These are: victim care, promptness and examination, collection of samples, collection of blood and urine samples, genital and anal evidence, handing over samples to FSL and general. It can be accessed through the link: https://nhrc.nic.in/acts-and-rules/standard-operating-procedure-sop-collection-processing-scientificforensic-evidences

The Commission has come out with this SOP after it observed that in many cases of alleged rape and sexual assault, there is a substantial delay in medical examination, collection & processing of scientific/forensic evidences of the victim of sexual assault. The exhibits are forwarded to the Forensic Science Laboratory, FSL after much delay and by that time, the samples deteriorate/autolyse and become unsuitable for examination. This delay adversely affects the investigation for effective prosecution leading to a conviction.

The NHRC has expressed the hope that this Standard Operating Procedure if implemented in letter & spirit by the concerned authorities, will definitely help improve the system of medicolegal investigation in cases of sexual assault on women in the country.


National Human Rights Commission

[Press Release dt. 16-12-2020]

Case BriefsHigh Courts

Orissa High Court: S.K. Sahoo J. allowed the appeal in part setting aside conviction under Sections 376/511, 354 and 457 of  Penal Code, 1860 and upholding conviction under Section 448 IPC.

The facts of the case are such that on 03-10-1989 at about 9.30 p.m. while the victim/informant was sleeping with her younger brother in one room of her house and her elder brother Jubaraj Nag and his elder brother’s wife Jayanti Nag were sleeping in the adjacent room, the appellant entered into the room where the victim was sleeping by opening the bamboo door of the victim’s room, disrobed her saree and attempted to commit rape on her. Hearing hullah of the victim, the elder brother and his wife came inside her room. The appellant tried to conceal himself underneath a raised platform inside the bedroom but the victim, as well as his elder brother, assaulted him by firewood. Due to tussle of the appellant with the victim, the bangles of the victim were broken and were lying underneath the cot. Then the brothers of the appellant came and took him to their house. FIR was lodged against the appellant under Sections 457 and 354 of the Penal Code, 1860 i.e. IPC. The appellant Satrughana Nag faced trial in the Court of learned Additional Sessions Judge, Titilagarh for offences punishable under Sections 376/ 511, 354 and 457 of the IPC. The learned trial Court vide impugned judgment and order dated 17-03-1990, found the appellant guilty of the offences charged and sentenced him accordingly. Aggreived by the same, instant appeal was filed.

Counsel for the appellants submitted that there are certain improbability features in the prosecution case which create doubt that the appellant attempted to commit rape on the victim rather the victim appears to be a consenting party and when she was caught in a compromising position with the appellant by her family members, she reacted and brought false accusation against the appellant just to save her own skin.

Counsel for the respondents submitted that evidence of the victim is clear, cogent and trustworthy, that in itself is sufficient to convict the appellant.

The Court based on the evidence put on record and the witnesses submissions observed that it is the settled principle of law that if the statement of the prosecutrix is found to be worthy of credence and reliable, then it requires no corroboration and the Court can act on such testimony and convict the accused. There may be compelling reasons in some cases which may necessitate looking for corroboration to the statement of the prosecutrix. The evidence of the prosecutrix is more reliable than that of an injured witness. Minor contradictions or insignificant discrepancies in the statement of the prosecutrix should not be a ground to discard her version, if it inspires confidence. Corroboration to the testimony of the prosecutrix is not a requirement of law but a guidance of prudence under the given circumstances. The very nature of offence makes it difficult to get direct corroborating evidence.

The Court further observed on the issue of whether victim was a consenting party or not and stated that law is well settled that even in the absence of a specific defence of consent being taken by an accused charged with the offence of rape, if the evidence on record indicates that the victim was a consenting party, then the Court can always take the view that the sexual intercourse with the prosecutrix was not against her will but with her consent. Whether there was consent or not, is to be ascertained only on a careful study of all relevant circumstances. An inference as to consent can be drawn only basing on evidence or probabilities of the case. ‘Consent’ is stated to be an act of reason coupled with deliberation. It denotes an active will in mind of a person to permit the doing of the act complained of. If the victim fails to offer sufficient resistance, the Court may find that there was no force or threat of force or the act was not against her will. ‘Consent’ does not mean submission under the influence of fear or terror. There must be an exercise of intelligence based on knowledge of its significance and moral quality and there must be choice between resistance and assent. If the woman resists to a point whereafter further resistance would be useless or until her resistance is overcome by force or violence, submission thereafter is not consent. Verbal resistance apart, the woman can give effective obstacles by means of hands, limbs and pelvic muscles. Resistance by any or more of these will amount to resistance in the eye of law. A mere act of helpless resignation in the face inevitable compulsion, acquiescence, non-resistance or passive giving in, when volitional faculty is either clouded by fear or vitiated byduress, cannot be deemed to be a consent, as envisaged in law.

The Court thus held that the victim’s version in the Court was of rape but when it is compared with the one given during investigation, certain irreconcilable discrepancies are noticed. The evidence regarding actual commission of rape is at variance from what was recorded by police during evidence. Therefore, the victim cannot be said to be a truthful witness. It was further held that coming to the charge of attempt to commit rape, the reaction of the victim at the time of occurrence and immediately thereafter are very relevant features, but its absence is not always a decisive factor. As per examination and records it is clear that there were many opportunities earlier for the victim to raise shout and protest but she did not do that.

In view of the above, the conviction of the appellant under Sections 376/511 and 354 of IPC was held to not be sustainable in the eye of law however; there are enough materials to make out an offence of house18 trespass as defined under Section 442 of IPC which is punishable under Section 448 of IPC.

The court thus allowing the appeal in part held conviction of the appellant under Sections 376/511, 354 and 457 of  IPC is hereby set aside, instead the appellant is convicted under Section 448 of the IPC and sentenced to undergo imprisonment for the period already undergone by him.[Satrughana Nag v. State of Odisha, 2020 SCC OnLine Ori 885, decided on 11-12-2020]


Arunima Bose, Editorial Assistant has put this story together

Case BriefsHigh Courts

Chhattisgarh High Court: Gautam Chourdiya J., allowed the appeal and reversed the impugned order due to lack of clear evidence.

 The facts of the case are such that on 3-07-2003 at about 5 pm near Primary School at Village- the accused persons were sitting with club and bamboo stick in their hands. One, Gajpati (PW-5), along with his nephew Adalat and his wife Etwarinbai reached the place of occurrence, all the accused persons started abusing him filthily in the name of his caste saying Sale Chamra and they all were threatening to kill them and thereby assaulted them. An FIR was lodged under Sections 147, 148, 149, 323 of Penal Code, 1860 and 3(1)(x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act against all the accused persons. The trial considering the material available on record acquitted the other accused persons of all the charges, but convicted and sentenced the accused/appellants under Section 323 of Penal Code, 1860

Counsel for the appellants submitted that the entire evidence of the witnesses, it appears that all the accused persons assaulted upon the injured persons but the trial Court wrongly appreciated the evidence and without any basis held only the appellants guilty of causing simple hurt to the injured persons. It was further submitted that only general and omnibus allegations have been made against the appellants and other accused persons, there was a free fight between the parties but the trial Court on its own without there being any cogent and reliable evidence, held the appellants guilty under Section 323 of IPC, which is liable to be set aside.

Counsel for the respondents submitted that the trial Court considering all the relevant aspects of the matter has rightly convicted and sentenced the present appellants by the impugned judgment which calls for no interference by this Court.

The Court held that “the trial Court has acquitted accused persons out of 16 and held only the appellants guilty under Section 323 of IPC. Admittedly, no appeal has been preferred by the complainant or the State against acquittal of other accused persons. Therefore, looking to the nature and quality of evidence available on record, considering the fact that there was a free fight between the parties due to old land related dispute where both the parties sustained injures and counter case was also lodged, it cannot be said with certainty that it is the present appellants who caused injuries to Shambhunath and Ghasnin Bai, as has been held by the trial Court. Therefore, the present appellants are also entitled for acquittal by extending them benefit of doubt.”

In view of the above, appeal was allowed and the impugned judgment was set aside. [Tiharu Sahu v. State of Chhattisgarh, 2020 SCC OnLine Chh 666,  decided on 19-11-2020]


Arunima Bose, Editorial Assistant has put this story together

Case BriefsSupreme Court

Supreme Court: Giving benefit of doubt to the accused convicted under Section 302 IPC r/w Section 34 IPC, the 3-judge bench of SK Kaul, Anirudhha Bose and Krishna Muraji, JJ reiterated that Court can and may act on the testimony of single eye-witness provided he is wholly reliable.

“… the prosecution has miserably failed to prove the guilt of the accused beyond doubt the appellants therefore must be given benefit of doubt.”

The Court was heading the matter where the appellants were convicted for killing the deceased by giving him hockey and knife blows. The Trial Court came to the conclusion that the prosecution had brought home the guilt of the accused persons and accordingly sentenced them to Life Imprisonment.

Before the Supreme Court, it was argued by the defence that

  • The knife which was recovered had a blunt tip, as such, the injuries as mentioned in the post mortem report were not possible to be caused by the said knife. Even, this knife was not shown to the doctor to seek his opinion whether injuries were possible by the said blunt knife or not.
  • Recovery of hockey at the instance of the appellant was not even believed by the Trial Court.
  • the conviction and sentence of the appellants based upon the sole testimony of one eye witness, whose conduct was unnatural and inconsistent with the ordinary course of human nature making his presence at the site of incident extremely doubtful, is highly unsafe without corroboration from other piece of evidence.
  • The other two eye witnesses have turned hostile and nothing could be elicited from their cross-examination by the prosecution.

Prosecution argued

  • Two Courts have recorded concurrent finding of guilt of the accused appellants based on the testimony of an eye witness which they found to be reliable and there exists no legal impediment for conviction on the basis of the same.
  • Evidence of a hostile witness is not to be discarded as a whole and relevant parts thereof which are admissible in law can be relied upon by the prosecution.
  • The conviction cannot be assailed merely because of some lacuna in investigation and any failure or omission of the investigating officer cannot render the prosecution case doubtful or unworthy of belief, in a case where the prosecution case is fully established by direct testimony of eye witness duly corroborated by medical evidence.

Considering the submissions and material on record, the Court noticed,

“There is no legal impediment in convicting a person on the sole testimony of a single witness. That is the logic of Section 134 of the Evidence Act, 1872. But if there are doubts about the testimony, Courts will insist on corroboration. It is not the number, the quantity but quality that is material. The time honoured principle is that evidence has to be weighed and not counted. On this principle stands the edifice of 8 Section 134 of the Evidence Act. The test is whether the evidence has a ring of truth, is cogent, credible and trustworthy or otherwise.”

The Court said that in the facts and circumstances of the case this was serious lapse on the part of the investigating officer. Though normally minor lapses on the part of the investigating officer should not come in the way of accepting eye witness account, if otherwise reliable. But in the circumstances of the case at hands where the conduct of sole eye witness is unnatural and there are various other surrounding circumstances which make his presence at the site of incident doubtful, such a lapse on the part of the investigating officer assumed significance and is not liable to ignored.

It was, hence, held,

“… ordinarily this Court could be reluctant to disturb the concurrent view but since there are inherent improbabilities in the prosecution story and the conduct of eye witness is inconsistent with ordinary course of human nature we do not think it would be safe to convict the appellants upon the incorroborated testimony of the sole eye witness.”

[Amar Singh v. State (NCT of Delhi),  2020 SCC OnLine SC 826, decided on 12.10.2020]

Case BriefsSupreme Court

Supreme Court: The 3-judge bench of NV Ramana, SA Nazeer and Surya Kant, JJ has elaborately discussed the power of the Disciplinary Authority to impose punishment, applicability of rules of evidence and the scope of judicial review in such cases.

Punishment and plea of leniency

The Disciplinary Authority has wide discretion in imposing punishment for a proved delinquency, subject of course to principles of proportionality and fair play. Such requirements emanate from Article 14 itself, which prohibits State authorities from treating varying¬degrees of misdeeds with the same broad stroke. Determination of such proportionality is a function of not only the action or intention of the delinquent but must also factor the financial effect and societal implication of such misconduct.

“Unlike in criminal cases, in matters of disciplinary proceedings Courts only interfere on grounds of proportionality when they find that the punishment awarded is inordinate to a high degree, or if the conscience of the Court itself is shocked.”

Thus, whereas imposition of major penalty (like dismissal, removal, or reduction in rank) would be discriminatory and impermissible for trivial misdeeds; but for grave offences there is a need to send a clear message of deterrence to the society. Charges such as corruption, misappropriation and gross indiscipline are prime examples of the latter category, and ought to be dealt with strictly.

Effect of criminal enquiry on disciplinary proceedings

It is both possible and common in disciplinary matters to establish charges against a delinquent official by preponderance of probabilities and consequently terminate his services. But the same set of evidence may not be sufficient to take away his liberty under our criminal law jurisprudence. Such distinction between standards of proof amongst civil and criminal litigation is deliberate, given the differences in stakes, the power imbalance between the parties and the social costs of an erroneous decision.

“Thus, in a disciplinary enquiry, strict rules of evidence and procedure of a criminal trial are inapplicable, like say, statements made before enquiry officers can be relied upon in certain instances.”

However, while strict rules of evidence are inapplicable to disciplinary proceedings, enquiry officers often put questions to witnesses in such proceedings in order to discover the truth. Indeed, it may be necessary to do such direct questioning in certain circumstances.

Scope of Judicial Review in Service Matters

The Constitutional Courts while exercising their powers of judicial review cannot assume the role of an appellate authority. Their jurisdiction is circumscribed by limits of correcting errors of law, procedural errors leading to manifest injustice or violation of principles of natural justice.

“… judicial review is not analogous to venturing into the merits of a case like an appellate authority.”

Further, where an appellate or reviewing Court/authority comes to a different conclusion, ordinarily the decision under appeal ought not to be disturbed in so far as it remains plausible or is not found ailing with perversity.

[Pravin Kumar v. Union of India, CIVIL APPEAL NO. 6270 of 2012 , decided on 12.09.2020]

Op EdsOP. ED.

Abstract

To obtain an identification of the suspect, police uses several modes like visual, audio, scientific and test identification parade. Although numerous jurisdictions have made improvements to their identification procedures in recent years, a large share of jurisdictions have still not made significant reforms. Although some courts have been making better use of the scientific findings on eyewitness identification, most courts are still using an approach that is largely unsupported by scientific findings. This paper focuses on the study of study of how eyewitness evidence is perceived in the criminal justice system. The paper highlights the relevancy and admissibility of identification of the accused in Court, having regard to the criminal burden of proof, the frailties of eyewitness identification evidence and the problems in the line-up procedures employed by the police.

।. INTRODUCTION

The issue of identification is one for you to decide as a question of fact”.[1]

Identification evidence is highly persuasive to triers of fact. There is an intuitive sense that when someone witnesses a stranger commit a crime, he or she should be able to remember that face. After all, we see and remember faces every day. However, more than four decades of research has revealed this assumption to be flawed, there is clear evidence that witnesses often struggle with accurately recognising the face of a stranger perpetrator[2]. Indeed, although eyewitness testimony can be an important and valuable form of evidence, eyewitness identification errors are a leading cause of wrongful convictions in many countries[3].

The evidence which requires particular attention is identification evidence, which resembles confession evidence in being, at the same time, both extremely compelling and potentially unreliable. Witnesses are frequently required to identify persons whom they have only seen fleetingly and often in confused circumstances. The identification of the perpetrator is often the only issue that needs to be determined in a criminal trial[4].

Mistaken identity may often occur in good faith, but the effects can be extremely serious for the defendant and, for this reason, there is an obvious need for caution in relation to such evidence. As with evidence of lies by the defendant, the hazards associated with identification evidence are addressed by means of a Judge’s direction, but there are additional safeguards which apply where the identification has been made by means of a formal procedure conducted under police supervision, such as an identification parade[5].

In its 1993 Report, the Royal Commission on Criminal Justice spoke of the compromise that has to be struck between crime control and due process values, so that “the risks of the innocent being convicted and the guilty being acquitted are as low as human fallibility allows”[6]. There are references to the need to strike a reasonable balance between the protection of a suspect’s rights and allowing the police the freedom to do their job throughout the Report, leaving the reader with the impression that if we could find this rather mystical balance, then all would be well.

II. MEANING OF IDENTIFICATION

‘Identification’ is the proof in a legal proceeding that a person, document, or other thing is that which is alleged to be. Identification is the evidence of identity[7]. Phipson states that “it is often important to establish the identity of a person who a witness testifies that he saw on a relevant occasion. Sometimes, the witness will testify that he had seen the person before, or even know the person well, and therefore recognised the person observed on the relevant occasion”.[8] The identity of a person can be established by the evidence of persons who know him[9].

III. SIGNIFICANCE OF IDENTIFICATION EVIDENCE

Many times crimes are committed under the cover of darkness when none is able to identify the accused. The commission of crime, in those cases, can be proved by establishing the identity of accused. Identification evidence is seen to be inherently fragile. In Alexander v. R[10], Mason, J. stated that:

“Identification is notoriously uncertain. It depends upon so many variables. They include the difficulty one has in recognising on a subsequent occasion a person observed, perhaps fleetingly, on a former occasion; the extent of the opportunity for observation in a variety of circumstances; the vagaries of human perception and recollection; and the tendency of the mind to respond to suggestions, notably the tendency to substitute a photographic image once seen for a hazy recollection of the person initially observed.”

The identification evidence has for some time been regarded as potentially dangerous for the simple reason, that mistakes are easy to make where identification is concerned.[11] Before we notice the circumstances proving the case against the accused and establishing the identity beyond reasonable doubt, it has to be borne in mind that approach required to be adopted by courts in such cases has to be different. The cases are required to be dealt with utmost sensitivity. Further, the evidence is required to be appreciated having regard to the background of entire case and not in isolation.[12]

In another case[13], where the question was raised whether evidence is permitted even in absence of formal proof by the Executive Magistrate concerned? The Court held that the fact that the Executive Magistrate concerned did not prove the Test Identification Parade does not make it inadmissible.

IV. TURNBULL GUIDELINES ON IDENTIFICATION

In response to widespread concern over the problems posed by cases of mistaken identification, the Court of Appeal in R v. Turnbull[14] laid down important guidelines Judges in trials that involve disputed identification evidence.

Where the case against an accused depends wholly or substantially on the correctness of one or more identifications of the accused, which the defence alleges to be mistaken, the Judge should warn the jury of the special need for caution before convicting the accused in reliance on the correctness of the identification(s). The  Judge should tell the jury that:

i. caution is required to avoid the risk of injustice;

ii. a witness who is honest may be wrong even if they are convinced they are right;

iii. a witness who is convincing may still be wrong;

iv. more than one witness may be wrong;

v. a witness who recognises the defendant, even when the witness knows the defendant very well, may be wrong.

The  Judge should direct the jury to examine the circumstances in which the identification by each witness can be made. Some of these circumstances may include:

i. the length of time the accused was observed by the witness;

ii. the distance the witness was from the accused;

iii. the state of the light;

iv. the length of time elapsed between the original observation and the subsequent identification to the police.

V. IDENTIFICATION EVIDENCE UNDER INDIAN LAW

Section 9 of the  Evidence Act, 1872 is concerned with the admissibility of facts which are necessary to explain a fact in issue or relevant fact. The section deals with that kind of evidence which if considered separate and distinct from other evidence would be irrelevant; but if it is taken into consideration in connection with some other facts, proved in the case it explains and throws light upon them[15]. As per Section 9, facts which establish the identity of accused are relevant[16]. This section does not deal with testimonial identity. Circumstantial evidence of identity are dealt within this section[17].

Where the court has to know the identity of anything or any person, any fact which establishes such identity is relevant. Personal characteristics such as age, height, complexion, voice, handwriting, manner, dress, blood group, knowledge of particular people and other details of personal history are relevant facts[18].

Identification proceedings are facts which establish the identity of an accused person as the doer of a particular act, and would be relevant under Section 9; but only if evidence of such identification is given by the witness. On the question of the admissibility of the evidence, the Supreme Court[19] held that “if a Magistrate speaks of facts which establish the identity of anything, the said facts would be relevant within the meaning of Section 9 of the Evidence Act; but if the Magistrate seeks to prove statements of a person not recorded in compliance with the mandatory provisions of Section 164 CrPC, such part of the evidence, though it may be relevant within the meaning of Section 9 of the Evidence Act, will have to be excluded.”

VI. MODES OF IDENTIFICATION

In a case involves disputed identification evidence, and where the identity of the suspect is known to the police, various methods like finger/thumb impression, voice, digital, comparison of writing, identification parade by police are used for the purpose of establishing facts showing identity of accused and properties which are the subject-matter of alleged offence. All the modes are discussed broadly as follows:

(i) Test Identification Parade (popularly known as TIP)

One of the methods used for establishing the identity of a person as the doer of a particular act is by means of identification parades[20]. In a case which involves disputed identification evidence a parade must be held if the suspects ask for one and it is practicable to hold one. A parade may also be held if the officer in charge of the investigation considers that it would be useful, and the suspect consents. The main purpose of an identification parade is to confirm the identity of the accused and help the police in their investigation[21]. The utility of the evidence created by an identification parade was explained by the Supreme Court in  Ramanthan v. State of Tamil Nadu[22]. The Court opined that “Identification parades have been in common use for a very long time for the object of placing suspect in a line up with other persons for identification. It enables the investigating officer to ascertain whether the witnesses had really seen the perpetrator of the crime and test their capacity to identify him and thereby to fill the gap in the investigation regarding the identity of the culprit.”

(a) Procedure of TIP

A crime is reported to the police. Some description might have been given of the suspect. In any event, the police investigate and arrest a particular person as the culprit. Then the complainant is taken to the police station to identify him i.e. to pick him out of a group of persons of similar complexion and stature. If the complainant picks him out then the police know that the witness is telling the truth and also that they are on the right track.

The Magistrate conducting the Test Identification Parade (TIP) is directed to take two photocopies of TIP report under his direct supervision and after certifying the same, hand over one to I O with specific directions that contents of such report should not be divulged to any person till charge sheet under Section 173, CrPC is filed. Second photocopy shall be retained by the Magistrate as “confidential” record in a sealed cover for future requirements, if necessary[23].

To conduct the procedure in an appropriate manner, special rooms for conduct of Test Identification Parade in all the prisons in the State shall be made. Such rooms shall have one side view glass separating those lined up for parade, on one hand and witness and the Magistrate, on the other — Witness and Magistrate should not be visible to those who are lined up, but, suspect and dummies should be visible clearly to the witness and the Magistrate. Enclosure in which the suspect and dummies are lined up shall be illumined and should also have ante room for them to change their attire[24].

(b) Value of TIP

Evidence of Test Identification Parade is not substantive evidence whereas evidence given in the court, is. However, when a witness correctly identified the accused at the parade but not in court the evidence of the Magistrate, who conducted the test parade that the witness correctly identified the accused at the parade, supported by the remarks of the trial  Judge regarding the demeanour of the witness that he was frightened and was unable to recognise the accused at the trial, was sufficient to convict the accused[25].

Identification of the accused made in court, is substantive evidence, where as identification of the accused in test identification parade is though a primary evidence but not substantive and the  same can be used only to corroborate the identification of accused by the witness in court[26].

Further, it is pertinent to note that the holding of TI parade is not compulsory. Where the witnesses were well acquainted with the accused and the incident was also widely covered by media, it was held that non-holding of TI parade was not fatal to the prosecution case[27]. As to when an identification parade may be necessary was explained by the Supreme Court in Jadunath Singh v. State of U.P.,[28]  that “ Of course, if the prosecution fails to hold an identification parade on the plea that the witnesses already knew the accused well and it transpires in the court of trial that the witnesses did not know the accused previously, the prosecution would run the risk of losing its case. It seems to us that if there is any doubt in the matter, the prosecution should hold an identification parade”.

In a case[29], where identification parade was held after an inordinate delay of about five weeks from the arrest of the accused, the explanation for the delay was not trustworthy. Plea as to the non-availability of a Magistrate in a city like Bombay though the investigating agency was not obliged to get the parade conducted from a specified Magistrate, was not accepted. It was held that the accused was entitled to benefit of doubt.

Thus, the identification parades belong to the stage of investigation, and there is no provision in the Code of Criminal Procedure which obliges the investigating agency to hold, or confers a right upon the accused to claim a test identification parade. They do not constitute substantive evidence and these parades are essentially governed by Section 162 of the Code of Criminal Procedure. Failure to hold a test identification parade would not make inadmissible the evidence of identification in court. The weight to be attached to such identification should be a matter for the courts of fact[30].

(ii) Video Identification

In the paper-based world, law assumes a process which is mutually understood and observed by all the parties. Almost without thinking, a four-part process takes place, involving acquisition, identification, evaluation and admission. When we try to apply this process to digital evidence, we see that we have a new set of problems[31]. Nowadays, in most countries live parades have now been largely replaced by video parades, an innovation that has been made possible by the development of sophisticated computer systems used to compile video images from a standardised database of moving video clips[32]. In Britain, two different IT systems are in widespread use to provide video identification: VIPER (Video Identification Parade Electronic Recording) and PROMAT (Profile Matching). Each system has its own database of images. VIPER lineups are prepared in a standardised format comprising approximately 15-second clips of each person shown in sequence one after another. The sequence starts with a head and shoulders shot of the person looking directly at the camera, who slowly turns their head to present a full right profile followed by a full left profile. Finally, the person returns to looking directly into the camera in a full-face pose. Each image is checked for quality control by the centralised National VIPER Bureau.

The relevancy of identification of the suspect by a witness who was not present at the scene of the crime, but knew the suspect and recognised him on video recording depends upon whether the witness needed for this purpose special skills and experience[33].

(iii) Visual/Eyewitness Identification

An eyewitness is one, who saw the act, fact or transaction to which he testifies. A witness is able to provide graphic account of the attack on the deceased can be accepted as eyewitness[34].  Identification of an accused in court by an eyewitness is a serious matter and the chances of false identification are very high[35].

In cases involving eyewitness identification evidence, the logical starting point is the integrity principle, which “states that the agents of law enforcement should not use, and the courts should not condone, methods of investigating crime that involve breaches of the rules”.[36] This promotes fairness to defendants and a moral consistency from the State: in responding to law-breaking the State should follow its own laws and rules.

Eyewitness evidence is usually the main type of evidence on which convictions are based[37]. There seems to be a general assumption by lay triers of fact that eyewitness testimony is one of the safest bases for any identification; there have certainly been convictions based on very weak visual-identification evidence[38]. In fact visual-identification evidence is often unreliable, and is therefore a potentially hazardous way of connecting a person to an offence. The classic example is where a witness testifies that he saw the offence being committed by a stranger some distance away, for a relatively short period of time, in far from ideal conditions. But it is not just such `fleeting glance’ identification evidence which can lead to miscarriages of justice.

The reliability of the witness’s opinion depends entirely on the reliability of the visible features of the first image which were actually seen and mentally recorded by him (which in turn depends on the extent to which he was paying attention, his physical and psychological powers of perception at that time and his memory) together with the reliability of his comparison of the stored image with the visible features of the second image.

Identifying witnesses may focus on broad impressions or features which stimulate their own subjective preferences rather than on the multitude of specific physical details, so markedly different facial characteristics between the offender and the accused may go unnoticed while vague similarities may be given undue weight. The problem becomes even more acute when the identifying witness and the identified person (the offender) are from different racial groups or generations. Another problem, which may arise in a case of purported recognition, is that of `unconscious transference’ where the witness confuses the offender with a different person seen in some other context. Conversely, if the witness claims never to have seen the offender before, the reliability of his identification is likely to decrease with time as his memory fades[39]. the eyewitness may be honestly mistaken but sincerely convinced that his identification is correct. In R v. Fergus[40] for example, the sole prosecution witness was said to have felt an `invincible conviction in the correctness of his identification’ of the accused even though the witness had poor eyesight, did not take much notice of the offender’s face and first described the offender as 5′ 11” tall with a light complexion and stubble, when the accused was 5′ 7” tall, dark-skinned and had not yet started shaving.

The conventional forensic tool for revealing weaknesses in testimony is cross-examination, but where visual-identification evidence is concerned this tool may be singularly ineffective and, ironically, may indirectly buttress the witness’s testimony.

Alarmingly, research shows “that approximately 40% of eyewitness identifications are mistaken”.[41]” Further, “it is estimated there may be more than 10,000 people a year wrongfully convicted, most of whom were convicted as a result of mistaken identification.”[42] This has led many in the criminal justice system to finally realise what others concluded long ago: eyewitness identification evidence is “hopelessly unreliable.” Unreliability, in turn, leads to a dual problem: not only is an innocent person likely to be convicted, but the true perpetrator necessarily goes free, often to commit additional crimes.[43]

Despite its hopeless unreliability, eyewitness identification evidence has proven to be an extremely powerful tool for the prosecution. The reality is that jurors are “unduly receptive to identification evidence and are not sufficiently aware of its dangers.”[44] Nothing is more convincing to jurors than a live witness who takes an oath and confidently proclaims that he saw the defendant commit the crime. In fact, the level of confidence exhibited by an eyewitness has been found to be the most powerful predictor of guilty verdicts.

In a case, where it was not certain that the visual recognition of the appellants by the complainant on a fateful night was unhindered and unhampered especially when he was fired at first and allegedly saw the occurrence under stress of a threat, the court acquitted the appellants of the charge by extending them the benefit of doubt[45].

Thus, the appreciation of the evidence of eyewitness depends upon[46]:

– The accuracy of the witness’s original observation of the events which he described, and

– The correctness and extent of that he remember and his veracity.

(iv) Forensic Identification

When false eyewitness identifications and wrongful convictions are discovered, they are usually exposed through post conviction DNA testing. However, in the vast majority of criminal cases, DNA evidence has either been destroyed[47] or, more commonly, never even existed in the first place[48]. This, of course, poses a significant problem for the innocent defendant convicted based primarily on eyewitness evidence.

Erroneous eyewitness identifications have plagued our criminal justice system since its inception. When DNA evidence became a prevalent tool for law enforcement in the 1980s, not only did it assist prosecutors in obtaining convictions, but it also reopened prior convictions that were obtained based primarily on eyewitness testimony. Studies now reveal that erroneous eyewitness identifications “are the single greatest cause of wrongful convictions in the United States, and are responsible for more wrongful convictions than all other causes combined.”[49] In fact, in 80% of the first one hundred post conviction DNA exoneration, the underlying wrongful convictions were based primarily, if not solely, on false identifications.[50]

In these DNA exoneration cases, the DNA evidence proved to a scientific certainty that the defendant did not commit the crime charged and had been wrongfully convicted. But even today, most innocent defendants do not have the luxury of DNA evidence to prove their innocence. For example, in some cases the police do not collect or properly preserve the available DNA evidence.[51]

(v) Voice Identification

Voice itself may be an issue in a criminal case, inasmuch as it may itself be a personal characteristic upon which an identification of a criminal depends. It thus seems appropriate that we have in recent years seen the coining of the word ear-witness for the witness who heard, rather than saw[52], something:

In obscene phone calls, bomb hoaxes, ransom demands, hooded rape, robberies, muggings, or in crimes committed in darkness, the perpetrator’s voice may be the only definite piece of evidence available to aid police investigation and court conviction. That most research into witness testimony and identification has been conducted in the visual realm reflects the fact that most identification situations involve a witness using visual cues. The preponderance of such research serves to obscure the fact that in many instances both visual and verbal information is available and in many others only verbal cues exist. The awareness of the existence of the last two types of criminal situation dictates that research into human abilities to recognise voices should not be neglected but rather be rapidly pursued.[53]

With visual-identification evidence, however, there is the very real possibility of error on account of the circumstances surrounding the witness’s initial perception of the offender’s voice (and the medium through which it was heard), the witness’s ability to remember the way the offender spoke and, in particular, his ability accurately to compare the offender’s voice with that of the accused[54].

It was recognised by New Zealand’s Court of Appeal in R v. Waipouri[55],  that voice-identification evidence is generally less reliable than visual-identification evidence and that even greater caution is required when relying on it. In R v. Roberts[56] the Court of Appeal received expert evidence to the effect that a voice identification is more likely to be wrong than a visual identification, that ordinary people are as willing to rely on identification by ear-witnesses as they are on identification by eye-witnesses and that the identification of a stranger’s voice is a very difficult task, even if the opportunity to listen to the voice was relatively good. Accordingly, in cases where the prosecution is permitted to adduce such evidence the jury must be given a direction analogous to that established for visual-identification evidence in  R v. Turnbull[57] .

Further, by analogy with the position for visual-identification evidence where the jury compares a photographic image of the offender with the accused, the jury should be given an appropriate warning when they are asked to compare a recording of the offender’s voice with the accused’s voice[58].

In an Indian case[59], where the witnesses were not closely acquainted with the accused, they claimed to have identified him from his short replies such evidence was held to be unreliable. In another case[60], in a charge of conspiracy for murder, the voice of the accused was recognised by the witness as he demanded money and he was already acquainted with the voice from earlier time. The evidence was held to be relevant.

Recently, the Supreme Court in Dola  v. State of Odisha,[61] observed that it is true that the evidence about the identification of a person by the timbre of his voice depending upon subtle variations in the overtones when the person recognising is not familiar with the person recognised may be somewhat risky in a criminal trial.

(vi) Previous Identification

Where, in criminal proceedings, a witness gives evidence identifying the accused as the person who committed the offence charged, evidence of a previous identification of the accused by that witness may be given, either by the witness himself or by any other person who witnessed the previous identification[62], for example a police officer who conducted a formal identification procedure such as a video identification or an identification parade, as evidence of consistency[63].

R v. Christie[64], is the leading authority that when a witness gives evidence identifying the defendant as the offender, evidence may also be given that he has previously identified the accused. In principle, the previous identification could fall foul of three exclusionary rules – the hearsay rule, the rule against self-serving statements and the rule against non-expert opinion evidence.

Till date, no case has fully examined and explained the reasons for the admissibility of evidence about previous identifications. The most comprehensive examination was in Christie, but that is authority only for the proposition that the credibility of a witness who identifies the accused in court may be supported by evidence that he has identified him previously. It does not allow evidence of the prior identification unless the identifier gives evidence identifying the accused[65].

The Indian Supreme Court[66] observed that identification evidence of accused cannot be relied upon, especially when identification in court is not corroborated either by previous identification in identification parade or any other evidence, conviction of accused cannot be based upon it.

VII. VALUE OF IDENTIFICATION EVIDENCE

A statement identifying someone as the offender may be admissible as a dying declaration, or as a part of the res gestae, or as a previous inconsistent statement, provided the conditions for admissibility of evidence under those principles are satisfied. It is well settled that the substantive evidence is the evidence of identification in court and the test identification parade provides corroboration to the identification of the witness in court, if required. However, what weight must be attached to the evidence of identification in court, which is not preceded by a test identification parade, is a matter for the courts of fact to examine[67].

In a recent judgment, the Court observed that test identification parade is not a substantive evidence. Its purpose is only to help the investigating agency ascertain as to whether the investigation in the case is heading in the right direction or not. There is no provision in CrPC which obliges the investigating agency to hold or confer a right on the accused to claim a test identification parade. Absence to hold it would not make inadmissible the evidence of identification in court[68].

VIII. CONCLUSION AND SUGGESTIONS

Thus, where the prosecution case depends solely on the identification of a single witness, it is particularly important to give a general, clear and simple direction on burden and standard. However, concerning the admissibility of identification evidence, it has been found that although there may be rare occasions when it will be desirable to hold a voir dire (an investigation into the truth or admissibility of evidence), in general the  Judge should decide on the basis of the depositions, statements, and submissions of counsel. Finally, failure on the part of the police to observe the provisions may be taken into account by the court when deciding whether to exclude identification evidence when assessing the weight of such evidence.


* Assistant Professor, Law, KIIT School of Law, Prasanti Vihar, Patia, Bhubaneshwar – 751024; Email:  sarvesh.shahi@kls.ac.in

[1] R v. Donnini, [1973] VR 67.

[2]. Gary L. Wells & Nancy K. Steblay, “Eyewitness Identification Reforms: Are Suggestiveness -Induced Hits and Guesses True Hits?”, Journal of Applied Psychology, 799, 835–844 (2011).

[3]. Heather L. Price, “Judicial Discussion of Eyewitness Identification Evidence” 49 CJBS 209–220 (2017).

[4]. S v. Mdlongwa, 2010 (2) SACR 419 (SCA).

[5]. Chris Taylor, Law Express Evidence, (Pearson, Chennai, 4th Edn., 2009).

[6]. The Royal Commision on Criminal Justice Report (“The Runciman Report”) (1993 London: HMSO)

Cmnd 2263, 2.

[7]. S.R. Myneni, Law of Evidence 84 (Asia Law House, Hyderabad, 3rd  Edn., 2019).

[8]. Phipson, Phipson on Evidence (Sweet & Maxwell, Thomson Reuters, 17th  Edn. 2015).

[9]. Dr. Avtar Singh, Principles of The Law of Evidence  66 (Central Law Publications, Allahabad, 22nd  Edn., 2018).

[10]. (1981) 145 CLR 395 at 426.

[11]. Alan Taylor, Principles of Evidence, 139 (Cavendish Publishing Limited, London,  2nd  Edn,. 2007).

[12]. Visveswaran v. State,  (2003) 6 SCC 73

[13]. Shiv Murat Kol v. State of M.P.,  2018 SCC OnLine MP 336.

[14]. [1977] QB 224.

[15]. Monir, M. Textbook on the Law of Evidence 66 (Universal Law Publishing, Delhi, 11th Edn,. 2018).

[16]. Ram Babu v. State of Uttar Pradesh(2010) 5 SCC 63.

[17]. Batuk Lal, The Law of Evidence 73 (Central Law Agency, Allahabad) 19th Edn., 2012).

[18]. Ashok K. Jain, Law of Evidence 44 (Ascent Publications, New Delhi,  6th Edn,. 2015).

[19]. Deep Chand v. State of Rajasthan,  (1962) 1 SCR 662.

[20]. Vepa P. Sarathi, Law of Evidence 56 (Eastern Book Company, Lucknow, 6th Edn., 2008).

[21]. Gade Lakshmi Mangaraju v. State of A.P., (2001) 6 SCC 205.

[22](1978) 3 SCC 86 at page 96.

[23]. 2017 Cri LJ 5011.

[24]. Ibid.

[25]. Dana Yadav v. State of Bihar, (2002) 7 SCC 295.

[26].Ibid at page 301.

[27]. R. Shaji v. State of Kerala, (2013) 14 SCC 266.

[28].  (1970) 3 SCC 518.

[29].  (1999) 8 SCC 428.

[30]. Malkhan Singh v. State of M.P., (2003) 5 SCC 746.

[31]. Swati Mehta, “Cyber Forensics and Admissibility of Digital Evidence” (2011) 5 SCC J-54.

[32]. Amina Memon, “A Field Evaluation of the VIPER System: a New Technique for Eliciting Eyewitness Identification Evidence” 17 Psychology Crime & Law 711 (2011).

[33]. Jowett, Christian, 2002 NLJ 152: Current Law (Jan) 2003.

[34]. Vishnu Narayan Moger v. State of Karnataka, 1995 SCC OnLine Kar 291.

[35]. Glanville Williams, Proof of Guilt 630 (Harvard Law Review , 3rd Edn 1963).

[36]. Ashworth, A., The Criminal Process: An Evaluative Study (1994 Oxford: Clarendon), 32; see also

Zuckerman, A.A.S., The Principles of Criminal Evidence (1989, Oxford: Clarendon).

[37]. Meintjes van der Walt L ” Judicial Understanding of the Reliability of Eyewitness Evidence: A Tale of Two Cases” PER / PELJ 2016(19).

[38]. R v. Mattan (Deceased) (1998) The Times 5.3.98 (97/6415/S2) (CA) and R v. Ross [1960] Crim LR 127 (CCA).

[39]. Raymond Emson, Evidence 360 (Palgrave Macmillan, 2nd Edn., 2004).

[40].  (1993) 98 Cr App R 313 (CA).

[41]. Amy Luria, “Showup Identifications: A Comprehensive Overview of the Problems and a Discussion of Necessary Changes” 86 Neb. L. Rev. 515, 516 (2008).

[42].  Suzannah B. Gambell, Comment, The Need to Revisit the Neil v. Biggers

Factors: Suppressing Unreliable Eyewitness Identifications, 6 WYO. L. REV. 189 (2006), at 190-91 [discussing Elizabeth F. Loftus & James M. Doyle, Eyewitness Testimony: Civil and Criminal? 4-1 (3rd Edn., 1997)].

[43]. Keith A. Findley, “Toward a New Paradigm of Criminal Justice: How the Innocence Movement Merges Crime Control and Due Process” 41 Tex. Tech L. Rev. 133 (2008).

[44]. Suzannah B. Gambell, Comment, “The Need to Revisit the Neil v. Biggers Factors: Suppressing Unreliable Eyewitness Identifications” 6 Wyo. L. Rev. 189 (2006).

[45]. Mian Sohail Ahmed v. State, (2019) SCC OnLine Pak SC 12.

[46]. Sir John Woodroff & Syed Amir Ali’s Law of Evidence 461. (Butterworths, Allahabad, 17 Edn., 2001).

[47]. Cynthia E. Jones, “The Right Remedy for the Wrongly Convicted: Judicial Sanctions for Destruction of DNA Evidence” 77 Fordham L. Rev. 2893 (2009). (Discussing how poor handling of evidence has resulted in premature destruction in thousands of cases, including in States in which laws have been enacted mandating evidence preservation.).

[48]. Barry Scheck, “Closing Remarks to Symposium, Thinking Outside the Box: Proposals for Change” 23 Cardozo L. Rev. 899 (2002).

[49]. State v. Dubose, 699 N.W.2d 582, 592 (Wis. 2005) (citing Gary L. Wells et al., “Eyewitness Identification Procedures: Recommendations for Lineups and Photo spreads” 22 Law & Hum. Behav. 603,605 (1998).

[50]. Calvin Ter Beek, “A Call for Precedential Heads: Why the Supreme Court’s Eyewitness Identification Jurisprudence is Anachronistic and Out-of-Step with Empirical Reality” 31 Law & Psychol. Rev. 21 (2007).

[51]. People v. Cress, 645 N.W.2d 669, 692 (Mich. Ct. App. 2002).

[52]. Bethany K. Dumas, “Voice Identification in a Criminal Law Context, American Speech”, 65 Duke University Press, 341-348 1990).

[53]. Ray Bull, “Earwitness Testimony” 39 Med. Sci. Law 120-127 (1999).

[54]. Supra note 3.

[55]. [1993] 2 NZLR 410.

[56].  [2000] Crim LR 183 (99/0458/X3).

[57]. [1976] 3 WLR 445 (R v. Hersey [1998] Crim LR 281 (CA), R v. Gummerson, [1999] Crim LR 680 (CA), R v. Chenia, [2003] 2 Cr App R 83 (CA)). .

[58]. Bulejcik v. R, (1996) 185 CLR 375 (HCA), R v.O’Doherty, [2003] 1 Cr App R 77 (NICA).

[59]. Inspector of Police v. Palanisamy,  (2008) 14 SCC 495.

[60]. Mohan Singh v. State of Bihar,  (2011) 9 SCC 272.

[61]. (2018) 18 SCC 695

[62]. For the difficulties which arise where the witness fails to identify the accused in court, having previously identified him outside court, see R v. Osbourne and R v. Virtue, [1973] QB 678, CA. 295 (See Ch 10).

[63]. R v. Burke and Kelly, (1847) 2 Cox CC.

[64]. [1914] AC 545.

[65]. Rosamund Reay, Evidence 311 (Old Bailey Press, 3rd Edn., 2001).

[66]. Dana Yadav v. State of Bihar, (2002) 7 SCC 295.

[67]. Malkhan Singh v. State of M.P., (2003) 5 SCC 746.

[68]. Raju Manjhi v. State of Bihar, (2019) 12 SCC 784.

Case BriefsHigh Courts

Kerala High Court: R. Narayana Pisharadi, J. set aside the judgment of the trial court and pronounced the appellant/ accused being not guilty.

In the present case, the appellant appealed against his conviction by the trial court for possessing a can containing ten litres of arrack (distilled alcoholic drink). He was found guilty and accordingly punished according to Section 58 of the Abkari Act.

The Court did not agree with the verdict of the lower court on certain factual and procedural grounds:

  1. Discrepancy in the evidence by various witnesses regarding the cans seized being found in a sealed condition or not.
  2. Undue assumption by the lower court that the liquid sample drawn for analysis was taken by the court.
  3. Further, there is no proof shown that the sample in question was actually the one seized from the appellant/ accused.
  4. Moreover, there was no forwarding note marked in evidence which could cogently prove if the sample was drawn from the cans possessed by the appellant/ accused.

The Court emphasised on the fact that in the absence of a forwarding note marked in evidence, it cannot be found that the prosecution had beyond reasonable doubts proved that the very same sample of liquid taken from the very same can seized from the possession of the accused had reached the chemical examiner for analysis in a tamper-proof condition.

The Court relied on Vijay Pandey v. State of U.P., 2019 SCC OnLine SC 942, wherein it was held that mere production of a laboratory report that sample tested was the contraband substance cannot be conclusive evidence. Sample seized and that tested have to be co-related.

The Court held that the absence of the forwarding note in evidence would mean the absence of evidence connecting the sample tested in the laboratory and the sample allegedly drawn from the liquid seized from the possession of the accused.[Rajendran v. State of Kerala, 2020 SCC OnLine Ker 3139, decided on 10-08-2020]

Case BriefsHigh Courts

Punjab and Haryana High Court: In the instant appeal, the question before the Court was that whether the appellant can be attributed medical negligence merely because she did not explain to the respondent that at the time of delivery of child, uterus is of size of the child and the tubes get enlarged as well, and go back to their normal size after delivery; and during regress, the tubes are likely to slip thereby exposing chance of further pregnancy. Examining the facts, evidences adduced in the matter and the findings of the Trial Court, Bench of Rekha Mittal, J., held that the lower Courts attributing negligence to the appellant and fastening liability for payment of damages suffer from perversity as the respondent- plaintiff did not adduce any evidence or expert opinion which proves or explains that it not advisable to perform tubectomy along with caesarean section. Therefore it is difficult to sustain the findings of the lower Courts that tubectomy operation failed because of negligence attributable to the doctor. 

As per the facts, during the birth of the respondent-plaintiff’s 4th child, the appellant performed the tubectomy operation. The respondent- plaintiff alleged that she was assured by the appellant that the after tubectomy operation, she will never conceive in future. However, the respondent conceived again. The respondent alleged that had full assurance not been given by the appellant, she would not have undergone tubectomy operation. The respondent claimed that the post- operation pregnancy was due to the professional negligence of the appellant. The respondent further stated that her 5th pregnancy caused a great deal mental agony and mental/bodily pain and sufferings while giving birth to another child. Sumiti Arora appearing for the respondent pointed out the findings of the Trial Court according to which the appellant was found to be negligent because as an expert it was obligatory upon her to advise the respondent-plaintiff to wait for some time more to get the tubectomy operation done. Appearing for the appellant, T.N. Gupta submitted that the respondent did not adduce any evidence to suggest that the appellant was negligent in conducting tubectomy operation simultaneously with delivery of child through caesarean section. It was further argued that there is no medical text/opinion which suggests or supports the theory that tubectomy operation should not have been carried out at the time of delivery or the same was required to be carried out after the delivery.

Perusing the facts of the case, the Court observed the Supreme Court decision in State of Punjab v. Shiv Ram, (2005) 7 SCC 1, wherein the Court, in order to decide the case, referred to certain authoritative texts dealing with percentage of failure of sterilization conducted through different methods. The Court noted that in order to support contentions, the respondent did not refer to any medical text or opinion much less expert opinion of a professional in gynaecology/sterilization that it is not advised to perform tubectomy along with caesarean section. It was further noted that there is no evidence suggesting that sterilization, in the instant case, has failed merely because it was performed at the time of delivery. The Court also took notice of the fact that the respondent had admitted that the operation was conducted properly and there was no negligence on the part of surgeon while performing the operation. Taking a cumulative view of the facts, the Court held that findings of the lower Courts are unsustainable, thereby allowing the instant appeal and set aside the judgment and decrees passed by the lower Courts. [Dr Sushma Chawla v. Jasbir Kaur, 2020 SCC OnLine P&H 1000 , decided on 08-07-2020]

Case BriefsHigh Courts

Himachal Pradesh High Court: Sandeep Sharma J. dismissed both writ petitions filed by the petitioners stating that the freedom of an individual cannot be curtailed for indefinite period on the basis of suspicion, especially when his/her guilt is yet to be proved, in accordance with law.

The instant case is represented by counsel N.K. Thakur, with Divya Raj Singh for petitioners and Sudhir Bhatnagar, Arvind Sharma and Anil Jaswal for respondents.

The petitioner was taken into custody on 10.01.2020 charged under Section 3 (II) (I) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, and subsequently was released on bail subject to his furnishing personal bonds in the sum of Rs  20,000 to the satisfaction of the concerned Court. The status report which is prepared on the basis of the investigation carried out by the Investigating Agency was perused and returned stating that pursuant to order dated 10.1.2020, bail petitioner has joined the investigation and he is fully cooperating. It was further stated that nothing remains to be recovered from the bail petitioner.

The Court finds that investigation in the case is complete and nothing is required to be recovered from the bail petitioner, hence no reason left for custodial interrogation of the bail petitioner, especially when guilt, if any, is yet to be determined, in accordance with law on the basis of totality of evidence to be collected on record by the Investigating Agency. 

The Court relied on the Supreme Court Judgment, Dataram Singh v. State of Uttar Pradesh, (2018) 3 SCC 22 decided while deciding the present case.

Bench held that object of the bail is to secure the attendance of the accused in the trial and the proper test to be applied in the solution of the question whether bail should be granted or refused is whether it is probable that the party will appear to take his trial. Bail is not to be withheld as a punishment. Court has to keep in mind nature of accusations, nature of evidence in support thereof, severity of the punishment which conviction will entail, character of the accused, circumstances which are peculiar to the accused involved in that crime.

In view of the above, the bail petitions are disposed of. [Keshva Nand v. State of H.P., 2020 SCC OnLine HP 258, decided on 25-02-2020]

Case BriefsHigh Courts

Bombay High Court: A Division Bench of S.S. Shinde and N.B. Suryawanshi, JJ., dismissed an appeal filed by the State against the order of the trial court whereby the respondent-accused was acquitted of the charge of murder punishable under Section 302 IPC. 

The respondent was accused of killing his wife. It was alleged that he had suspicion that his wife had an illicit relationship with her brother-in-law. And on the day of the incident, the accused had asked his wife to stitch his clothes, which was refused by the wife. It was alleged that, thereafter, the accused caused his wife to fall down and throttled her with his hands. The accused then gave information to Police Sub-Inspector Jafar that he has murdered his wife. The accused was tried for committing an offence punishable under Section 302 IPC. He was, however, acquitted by the trial court. Aggrieved thereby, the State preferred the instant appeal. 

The main evidence on which the prosecution case rested was the information given by the accused to the Police Inspector wherein he implicated himself with having committing his wife’s mother. The High Court was of the view that: “The disclosure by the accused to Jafar (PW 1) in police station that, he committed murder of his wife Kalpana by throttling her in his dwelling house, because he was suspecting the character of his wife Kalpana, is not admissible in the evidence.”

The Court relied on various decisions of the Supreme Court relating to admissibility in evidence of a confessional statement of the accused, including Aghnoo Nagesia v. State of Bihar, AIR 1966 SC 119; Khatri Hemraj Amulakh v. State of Gujarat, (1972) 3 SCC 671 and Bheru Singh v. State of Rajasthan, (1994) 2 SCC 467. The conspectus of law as culled out from authoritative pronouncements of the Supreme Court is that no part of a first information report lodged by the accused with the police could be admitted into evidence if it was in the nature of a confessional statement. The statement could, however, be admitted to identify the accused as the maker of the report. The part of the information as related distinctly to the fact discovered in consequence of the information could also be admitted into evidence under Section 27 of the Evidence Act if the other conditions of that section are satisfied.

Notably, the prosecution did not collect any other material including nail clippings of the accused which could have thrown light on the prosecution case. In such view of the matter, the High Court held that the trial court has taken a plausible view and the order under challenge did not warrant any interference. Resultantly, the appeal filed by the State was dismissed.  [State of Maharashtra v. Raju Mahipat Sakate, 2020 SCC OnLine Bom 43, decided on 7-1-2020]

Case BriefsHigh Courts

Punjab & Haryana High Court: Surinder Gupta, J. dismissed a petition dealing with the question whether accused under Negotiable Instruments Act, 1881 should be allowed to give his evidence in affidavit similar to that of a complainant.

The petitioner was facing trial in a complaint filed under the provisions of NI Act and sought permission from the trial court to submit his evidence through affidavit but the trial court refused to grant permission for the same while relying on observations in case of Mandvi Cooperative Bank Limited v. Nimesh B Thakore, (2010) 3 SCC 83.

Counsel for the petitioner, R.S. Rai argued that in the case of India Bank Association v. Union of India, (2014) 5 SCC 590 the accused was granted permission to submit his evidence on affidavit with the guideline that accused may submit his affidavit unless there is a justified ground to deny such permission. Further, the counsel argued that the order of trial court relying on observation of Mandvi Cooperative Bank Limited case was not sustainable.

While denying the petition and holding the order of trial court valid, the High Court stated the observation laid down by the Supreme Court in the case of Mandvi Cooperative Bank Limited that there is a basic difference in the nature of evidence of complainant and accused in a case of dishonoured cheque and it is wrong and unjustified to draw analogy between both, the Supreme Court opined that accused may not be able to provide any evidence and if any evidence is provided the nature of it may not be necessarily documentary and the defence will try to lead other kinds of evidences to rebut the presumption that the issuance of cheque was not in the discharge of any debt or liability. The Supreme Court discarded the observation laid down by High Court that Section 145(1) lays down the provision of filing an affidavit by the complainant so it can be assumed that accused can also file a similar affidavit.

Further, the Court opined that in case of Indian Bank Association the Supreme Court was dealing with the issue of setting guidelines/directions to be followed by the courts while trying complaints under Section 138 of the Negotiable Instrument Act that deals with dishonoured cheque and insufficiency in funds.

It was held that the law laid down in the Mandvi Cooperative Bank Limited case had not been dissented. Thus, the decision of the trial court was upheld and the petition was dismissed. [Rajni Dhingra v. Sanjeev Chugh, 2019 SCC OnLine P&H 2464, decided on 05-11-2019]

Case BriefsSupreme Court

Supreme Court: A Division Bench comprising of AM Khanwilkar and Dinesh Maheshwari, JJ. has held that the contents of a memory card or a pen drive in relation to a crime amount to a ‘document’ and not a ‘material object’ and the accused would be entitled to a copy of the same to prepare his defence under Section 207 of the Code of Criminal Procedure, 1973. However, if the electronic evidence pertained to a rape case then the trial court, keeping in mind the sensitivity of the contents, could deny a copy but may allow the inspection to the accused and his/her lawyer or expert for presenting effective defence during the trial.

The Court was deciding upon a case relating to Kerala actor’s plea for handing over a copy of the visuals of the alleged sexual crime committed on an actress in February 2017. The Court observed that if the prosecution was to rely on the fact of recovery of a memory card, then it could be treated as a material object. However, if the contents of the memory card are sought to be relied upon by the prosecution, then the same would be documentary evidence.

The judgment referred to Section 3 of the Indian Evidence Act, 1872 which includes electronic records in the definition of ‘documentary evidence’. The Court observed that tape records of speeches, and compact discs containing visuals, etc have been held to be “documents” by precedents. Also, Section 2(1)(t) of the Information Technology Act, 2000 [IT Act, 2000] defined “electronic record” to mean ‘data, record or data generated, image or sound stored, received or sent in an electronic form or microfilm or computer generated microfiche’. In this backdrop, the Court held that the footage/clipping contained in such a memory card/pen drive, being an electronic record as envisaged by Section 2(1)(t) of the IT Act, 2000, is a “document” and cannot be regarded as a “material object”. [P. Gopalkrishnan v. State of Kerala, 2019 SCC OnLine SC 1532, decided on 29-11-2019]

Case BriefsForeign Courts

Supreme Court of the Democratic Socialist Republic of Sri Lanka: L.T.B. Dehideniya, J., S. Thurairaja, PC, J. and E.A.G.R. Amarasekara, J., allowed an appeal concerning an order against the Provincial High Court of Balapitiya.

The Accused – Appellant was charged before the Magistrate Court on two counts punishable under Section 400 and 386 of the Penal Code respectively for committing the offences of cheating and misappropriation of the sum of Rs 80,000. The Magistrate found the Accused-Appellant guilty on first and second counts and imposed Rs 5000 fine in-default 2 months Rigorous Imprisonment and 2 years Rigorous Imprisonment for the first count and 2 years rigorous imprisonment for the second count. The High Court Judges hearing the arguments found that, the Accused-Appellant not guilty on the 2nd count and acquitted him. Being dissatisfied with the order of the High Court Judge the Accused- Appellant preferred this appeal to the Supreme Court.

The Court while allowing the appeal explained that it was mandatory for the Judge to analyse the entire evidence before the Court and to find whether the ingredients are proved beyond a reasonable doubt. But, in this case, neither the Magistrate nor the High Court Judge had followed the basic evaluation of facts and standard of proof. It is also noted that both the Magistrate and High Court Judge had not properly analyzed the dock statement, thus there was no case proved against the accused-appellant beyond reasonable doubt hence finding the sentence bad in law. [Meegastennage Prince Gunawardena v. Attorney General of the Democratic Socialist Republic of Sri Lanka, SC Appeal No. 42 of 2014, decided on 07-11-2019]

Case BriefsHigh Courts

Allahabad High Court: Applicant filed an application under Section 482 of Criminal Procedure Code which was contemplated by Dinesh Kumar Singh, J. where the prayer was to quash the Charges under certain Sections of Penal Code, 1860.

The applicant was charged under Sections 366, 376, 328, 506, 406 of IPC, in which the Chief Judicial Magistrate had taken cognizance. Santosh Yadav, counsel for the applicant argued that the accused was falsely implicated by the respondent-complainant who was the mother of the victim, the main reason cited by the counsel behind such baseless complaint was alleged desire to the victim to marry applicant. The counsel submitted the statements of the complainant and highlighted that she had stated that ‘she suspected the involvement of accused in the instant case.’ Another issue highlighted was alleged kidnapping by the accused-applicant, it was submitted that the victim was never abducted as she herself went to the police station to register the complaint. The attention of the Court was also drawn towards the other statement of the victim, recorded under Section 161 of CrPC. where the allegation of rape had been made upon the accused applicant who after committing rape had given assurance to marry her and subsequently when she asked to marry he committed assault and refused to marry.  In addition to these aforementioned evidences the applicant submitted an injury report, where it was stated that no marks to injury were found on the victim. Lastly, it was submitted by the learned counsel for the applicant that many facts were ignored by the Investigating Officer and the charge-sheet had been submitted in a routine manner, which was nothing but an abuse of the process of Court and in the interest of justice, the charge sheet deserved to be quashed.

Bhaiya Ghanshyam Singh, Advocate General for the state, had vehemently opposed the prayer for quashing of the charge- sheet and had stated that the evidence which was collected by the Investigating Officer cannot be looked into in this Application under Section 482 CrPC as the same will be required during the trial. It was submitted that High Court had no jurisdiction to appreciate the evidence of the proceedings under Section 482 of CrPC. “because whether there are contradictions or/and inconsistencies in the statements of the witnesses is essentially an issue relating to appreciation of evidence and the same can be gone into by the Judicial Magistrate during trial when the entire evidence is adduced by the parties.”

The Court held that the Investigating Officer had recorded the statements of as many as five witnesses have submitted the charge-sheet. It further opined that “the truthfulness of the statements of the witnesses cannot be scrutinized in Application under Section 482 CrPC” The Court relied upon the Judgment in Anurag Singh v. Chhatisgarh, 2019 SCC OnLine SC 509, where the Supreme Court had held that ‘position of law, was apparent that whether accused wanted to marry the victim right from very beginning or not and whether consent given by victim for sexual intercourse was a free-consent or not, was a subject matter of evidence, which is only possible to be decided after trial.’

Hence, the prayer for quashing the FIR was refused and the application was dismissed.[Kamal Pal v. State of U.P., 2019 SCC OnLine All 3539, decided on 25-09-2019]

Case BriefsTribunals/Commissions/Regulatory Bodies

Securities Appellate Tribunal (SAT): Coram of Justice Tarun Agarwala (Presiding Officer), Dr C.K.G. Nair (Member), and Justice M.T. Joshi (Judicial Member), quashed an order by the WTM who held the appellant vicariously liable for an act of the Company she worked in.

SEBI received a complaint against Silicon Projects India Limited (SPIL) in respect of the issue of Secured Redeemable Non-Convertible Debentures (NCDs) and consequently made an investigation as to whether SPIL made any public issue of securities without complying with the provisions of the Companies Act, 1956. On investigation, it was found that SPIL had made an offer of NCDs in the financial years 2009-10, 2010-11, 2011-12 and raised an amount of Rs 18.03 crore from 406 allottees. This offer was found to be in violation of the provisions of SEBI Act, 1992, the Companies Act, 1956 and SEBI (Issue and Listing of Debt Securities) Regulations, 2008 (ILDS Regulations). Accordingly, SEBI passed an order on 03-03-2016 for their debarment and refund to the investors against SPIL and its Directors. Since the directions were not complied with, SEBI initiated recovery proceedings against the Company and its Directors.

Along with the appellant, Shib Narayan Das and Antara Mukherjee were also Directors of SPIL during the issuance of the NCDs and were also engaged in fund mobilizing activity. SEBI issued an interim order on 07-03-2016 restraining them from accessing the securities market and further prohibited from buying, selling or dealing in the securities market and asked them to provide a full inventory of all their assets and properties.

By the same interim order, the appellant and the other Directors were directed to show cause as to why action should not be taken under Section 11 and 11-B of the SEBI Act to refund the money collected with interest.

The appellant filed a reply contending that she was appointed as a receptionist in 2009 on a salary of Rs 3000 and in March 2011, she was made a Director of the Company and her salary was increased to Rs 5000 per month. She gave her resignation as a Director on 01-12-2011. She contended that she had nothing to do with the issuance of NCDs and had never attended any meeting of the Board of Directors nor was a signatory to any Resolution in relation to the issuance of NCDs. Instead, Shib Narayan Das in his capacity of Chairman and Director of the Company used to sign all the necessary documents. Further, she was never involved in any activity of the Company. When CBI investigated the case against the Company in 2016, all the Directors including Shib Narayan Das was arrested but the appellant was not.

The WTM passed an order holding that the appellant is jointly and severally liable to refund the money collected by SPIL as she was a Director in the Company and cannot plead ignorance of the affairs of the Company. The appellant was aggrieved by this order and filed an appeal to challenge this order.

The Tribunal held that the said order was patently erroneous and against the provisions of Section 73(2) of the Companies Act as it was made on the assumption that in the absence of any officer being nominated as an officer in default then all the Directors were liable under Section 5(g) of the Companies Act. The WTM did not rely on any evidence on record and therefore, their order was illegal and unsustainable.

Usually, when an offence is committed by a company, the liability is not imposed on all the officers of the company en bloc. The Companies Act makes a departure from this pattern. It gives an opportunity to the board of directors to distribute the work as between the members of the board or to appoint a managerial person. If nothing of this sort is done, only then the whole board is liable to be prosecuted. In this case, it was not possible to hold one Director vicariously responsible for the acts of the Directors in charge of day-to-day affairs of the Company. The spirit of Section 27 of the SEBI Act indicates that an appellant who has nothing to do with the day-to-day affairs of the Company cannot be held guilty of any violation as there is no such thing as vicarious liability under Section 11-B of the SEBI Act. The order was quashed and the appeal was allowed.[Sayanti Sen v. Securities & Exchange Board of India, 2019 SCC OnLine SAT 132, decided on 09-08-2019]