Case BriefsDistrict Court

Karkardooma Court, Delhi: In a case filed by the State against the two accused Yogender Singh and Suraj under Section 147/148/149/427/436 Penal Code, 1860 (‘IPC’) based on deposition made by eye witnesses Shamshad (‘complainant’) (‘PW2’) and Pramod (‘PW3’), Amitabh Rawat, J. acquitted both the accused of all the offences punishable under Section 147/427/436 IPC read with Section 149 IPC, as the prosecution failed to prove its case against both the accused persons beyond reasonable doubt, which is the touchstone of criminal law on account of questionable veracity of the statements made by the witnesses. The acquittal is based on firstly, the presence of the accused persons was not established and secondly no charges were framed and even the testimony did not come from the concerned authority.

The present case of prosecution pertains to an unlawful assembly in Ashok Nagar, Delhi which used criminal force and violence and committed rioting in prosecution of their common object at the said place. The said unlawful assembly/rioters caused damage to the property of the complainant and set it on fire.

The Court noted that the testimony of PW2 & PW3, therefore, has to be scrutinized in detail for prosecution to establish its case. It was noted that the arrest memos of both the accused persons do not show either PW2 or PW3 as witness based upon whose identification they were arrested. PW2 Shamshad has not identified the accused persons in the court and in fact, has not even deposed about any identification by him of the accused persons on 09-03-2020 at Police Station Jyoti Nagar.

Also, PW3 deposed that on 09-03-2020 when he was in Police Station Jyoti Nagar, he saw two persons with ASI Vijay in the Police Station and identified them as involved in the present case. Yet PW3 is not a witness in the arrest memo.

The Court found it interesting that the deposition of PW5/ASI Deshpal who stated that on 09-03-2020, ASI Vijay Kumar handed over to him a disclosure statement of accused in FIR at P.S. Jyoti Nagar. He started an investigation and PW3- Pramod came to the Police Station, saw the accused and identified them as participants of riots. Moreover, complainant Shamshad (PW2) also visited the Police Station by chance, and he also identified the accused (this version of PW5 is completely absent in the deposition of PW2).

Thus, after identification by PW3-Pramod and complainant PW2-Shamshad, he wrote the statements of accused persons and arrested them. If the testimony of PW5 is correct and accused persons were arrested after identification by PW2 & PW3, then presence of PW2 & PW3 as witnesses in the arrest memos should have been there and the absence in the light of the testimony of PW2 & PW3, raises doubts over the prosecution case.

The Court opined that the testimony of the natural eye-witness/PW2 Shamshad and the testimony of PW3-Pramod does not inspire the Court to conclude the case against accused persons namely Yogender Singh and Suraj beyond reasonable doubt.

The Court, thus, acquitted both the accused persons, observing that on the cumulative reading of the entire testimonies of all the witnesses, the presence of accused persons in the unlawful assembly on the time and place of incident and their participation in the act of rioting, mischief and burning of house of complainant Shamshad is not established at all.

[State v. Yogender Singh, 2022 SCC OnLine Dis Crt (Del) 37, decided on 14-09-2022]


Advocates who appeared in this case :

Rajeev Krishan Sharma, Special Public Prosecutor, for the State;

Nishant Kumar Tyagi and Deepak Mohan, Advocates, for the accused.


*Arunima Bose, Editorial Assistant has put this report together.

Orissa High Court
Case BriefsHigh Courts

   

Orissa High Court: In an appeal filed challenging the Trial court ruling, convicting the accused under Section 302 of Penal Code, 1860 (‘IPC') a Division Bench of S Muralidhar CJ., and R K Pattanaik J. upheld conviction under Section 302 IPC by examining circumstantial evidence in detail and directed cancellation of his bail bonds and surrender forthwith, as the appellant was enlarged on bail during the pendency of the proceedings.

The present Appellant alongwith Bidyadhar Pradhan, were charged with the offence under Section 109 read with Section 302 IPC on the grounds of abetting the murder of Bhagabati Pradhan. After analyzing the evidence, the Trial Court convicted the present Appellant while acquitting the co-accused. Assailing this order, the present appeal was filed.

The Court noted that this is a case of circumstantial evidence. Placing reliance on Sharad Birdhichand Sarda v. State of Maharashtra, (1984) 4 SCC 116 Krishnan v. State, (2008) 15 SCC 430 and G. Parshwanath v. State of Karnataka, (2010) 8 SCC 593, the Court reiterated the conditions to be fulfilled before conviction could be based on circumstantial evidence.

The first circumstance is regarding the quarrel that took place the previous night between the Appellant, the co-accused, on one hand and the deceased and her family on the other. The Court thus noted that no doubt the witnesses are related to the deceased but such relation, by itself, would not result in their testimonies being discarded if they are otherwise truthful and consistent with each other.

It was further noted that based on the evidence of witnesses, it not only supplies the motive for the offence, but also proves the fact that immediately prior to the occurrence on that very evening, the accused had threatened to finish off the deceased. As regards the recovery of evidence, the Court was of the view that it has been more than adequately proved by the IO himself by producing the relevant record. Even, the opinion of the doctor is more than sufficient for the Court to conclude that the death was homicidal in nature.

The Court remarked “the fact that the weapon of offence did not have bloodstains will not matter if all other circumstances form a continuous chain and clearly point to the guilt of the Appellant and no one else.”

The Court held that the evidence is not only consistent with the guilt of the appellant but is also inconsistent with his innocence. Thus, no error can be found in the impugned judgment of the trial Court holding the appellant guilty of the offence punishable under Section 302 IPC.

[Tapan Kumar Pradhan v. State of Orissa, 2022 SCC OnLine Ori 2447, decided on 11-08-2022]


Advocates who appeared in this case :

Mr. Basudev Pujari, Advocate, for the Appellant;

Mr. Pravat Kumar Muduli, Additional Government Advocate, Advocate, for the Respondent.


*Arunima Bose, Editorial Assistant has put this report together.

Gujarat High Court
Case BriefsHigh Courts

   

Gujarat High Court: The Division Bench of S.H. Vora and Rajendra M. Sareen, JJ. dismissed a criminal appeal which was filed on being dissatisfied with the order passed by Special (POCSO) Judge for the offences under section 376 of Penal Code, 1860 and also, u/s 3 and 4 of the Protection of Children from Sexual Offences Act, 2012 (POCSO).

The case of the prosecution was that from 26-12-2015 to 27-12-2015, the accused forcibly entered in the house of the complainant, threatened the victim to kill her parents and thereupon, forcibly made intercourse with the victim and thus, committed the offence punishable u/s 376 of IPC and also u/s 3 and 4 of the POCSO Act. After having found material against the respondent accused, charge-sheet came to be filed. After hearing both the sides and after analysis of evidence adduced by the prosecution, the trial Judge acquitted the respondent-accused of the offences, for which he was tried, as the prosecution failed to prove the case.

The Court noted that the prosecution has not brought on record any authentic and reliable evidence as to wherefrom the contents of the birth certificate being obtained and placed on record and that the victim had not disclosed anything regarding the act of intercourse when her statement u/s 164 of the Code of Criminal Procedure was recorded. In nutshell, the victim did not shout for help, or her brothers disclosed anything though were outside home for tuition and attending the school nor she sought any help by using her mobile. Not only that, she did not also disclose to any of her relatives, who came at her home despite she was asked. Thus, the Court agreed with the trial judge’s finding that birth certificate of the victim and occurrence of the incident as alleged by the victim were not reliable and trustworthy.

The Court reproduced what was said in Ramesh Babulal Doshi v. State of Gujarat, (1996) 9 SCC 225 and found that in the present case APP has not been able to point out to as to how the findings recorded by the trial Court are perverse, contrary to material on record, palpably wrong, manifestly erroneous or demonstrably unsustainable.

The Court finally relied on Rajesh Singh v. State of Uttar Pradesh, (2011) 11 SCC 444 and in the case of Bhaiyamiyan v. State of Madhya Pradesh, (2011) 6 SCC 394 where it was established that while dealing with the judgment of acquittal, unless reasoning by the learned trial Court is found to be perverse, the acquittal cannot be upset. It is further observed that High Court’s interference in such appeal in somewhat circumscribed and if the view taken by the learned trial Court is possible on the evidence, the High Court should stay its hands and not interfere in the matter in the belief that if it had been the trial Court, it might have taken a different view.

The criminal appeal was thus dismissed.

[State of Gujarat v. Pratap Prabhuram Devasi, R/Criminal Misc. Application No. 15092 of 2022, decided on 22-08-2022]


Advocates who appeared in this case :

CM Shah, Advocate, for the Applicant 1.


*Suchita Shukla, Editorial Assistant has reported this brief.

Rouse Avenue
Case BriefsDistrict Court

Rouse Avenue District Court: In the case of defamation filed in the year 2013 by Sh. Surender Kumar Sharma, Advocate, Shahdara Bar Association (Complainant) against three persons i.e., Sh. Arvind Kejriwal, presently the Chief Minister of Delhi and convener/founder of Aam Aadmi Party (Accused 1), Sh. Manish Sisodia, presently Deputy Chief Minister of Delhi and the then Member of Political Affairs Committee of Aam Aadmi Party (Accused 2) and Sh. Yogender Yadav, the then Member of Political Affairs Committee of Aam Aadmi Party (Accused 3), Vidhi Gupta Anand, J. acquitted the accused person, despite examination of plethora of witnesses and bringing several documents on record, Complainant failed to prove his case beyond all reasonable doubts as required in law.

It has been alleged in the instant case that in June 2013, accused 1 was impressed by the social services provided by the Complainant and granted him ticket of MLA from Shahdara Constituency which has been published in several esteemed newspapers of the country. The grievances of the Complainant with respect to his alleged defamation came to the fore on 14-10-2013 when he read some newspaper articles in the leading Hindi and English newspapers pertaining to his replacement as the candidate of seat of MLA from Shahdara Constituency on the ticket of Aam Aadmi Party having headlines AAP replaces candidate with ‘criminal’ record. Allegedly, similar derogatory and defamatory language has also been used and got published by the Accused persons in other daily leading Newspapers i.e., Hindustan Times (Hindi) and Rastriya Shahara on 14-10-2013.

The complainant alleges that the aforesaid derogatory and defamatory words have lowered his image and reputation at the Bar as well as in the eyes of the general public and society at large and caused mental trauma to the Complainant and his family members and also affected his business of Advocacy as well as that of his nephew Yogesh Kumar Gaur. The complainant has stated that most of their litigants stopped coming to them because of their defamation. Thus, Complainant had prayed for taking lawful action against the Accused persons for offences U/s 120-B/420/499/500/34 Penal Code(‘IPC’).

Law of Defamation in India

The offence of defamation is defined u/s 499 of the IPC and punishable under Section 500 IPC. Placing reliance on Subramanian Swamy v. Union of India, (2016) 7 SCC 221, the Court noted that it is manifest that mens rea i.e., intention of defame is indispensable to establish the offence of defamation. There must be an intention on the part of the Accused to cause harm to the reputation of the complainant. The ingredients of the offence are as follows:

  1. Imputation made by the Accused: In the case at hand, it has been denied by the Accused persons that they gave any press-release on the basis of which the alleged defamatory news articles were published. Hence, it becomes a question of determination of this court as to whether the alleged defamatory news articles were published at the behest of the Accused persons or not.

  2. Statement/Imputation must be published: In the case at hand, the entire basis of the alleged defamation is several news-articles published in leading newspapers on 14-10-2013. Hence, as regards publication of the statement/imputation, there remains no scope of doubt as undoubtedly, newspaper is a document in public domain which can be accessed by any person and rather the entire purpose of publication is such that the information reaches as many people as possible.

  3. Intention to cause harm to the reputation of the Complainant: The Court noted that the parameter to judge as to whether a particular statement or imputation has harmed the reputation of a person or not, as encoded in Explanation — 4 to Section 499 IPC, is whether the imputation, directly or indirectly, in the estimation of others, lowers the character or credit of that person or causes it to be believed that the person is in a loathsome or disgraceful state. Thus, in order to prove that the injury was caused to his reputation, it is essential for the Complainant to prove that in the eyes of a third person, his character and credentials were questioned.

Appreciation of Evidence

Issue 1: Whether the alleged defamatory news articles were published at behest of accused persons or not?

The source of publication of alleged defamation is an e-mail sent by one Aswathi Muralidharan on 13-10-2013, which has been testified by different witnesses. According to her testimony, she denied being the Media Manager of the Aam Aadmi Party meaning thereby, that Aswathi Muralidharan has cut-off the chain linking the Accused persons to the alleged defamatory news articles. The ideal flow of information would have been from the Political Affairs Committee of the Aam Aadmi Party to Aswathi Muralidharan and from her to the Media Channels.

Thus, the source of the news articles which was determined after going through testimonies of several witnesses i.e., the e-mail from Aswathi Muralidharan, could not lend much support to the Complainant’s case so as to attribute the actus reus to the Accused persons.

Admissibility of Electronic Records

Placing reliance on Anvar P.V. v. P.K. Basheer, (2014) 10 SCC 473, the Court noted that any document on a computer device, unless produced in original, is admissible in the form of secondary evidence only when supported by a mandatory certificate as required u/s 65B (4) of Evidence Act.

The Court noted in light of the instant case that no certificate at all has been produced by any witness from other news publications i.e., Times of India and Rashtriya Sahara, with respect to the e-mails received by them. No primary evidence has been produced during the trial with respect to the receipt of the e-mail by Aswathi Muralidharan, hence, in view of the law elucidated above, filing of a certificate u/s 65B (4) of the Evidence Act was mandatory in this case. Thus, the admissibility of the e-mails relied upon by the Times of India and Rashtriya Sahara becomes questionable.

Thus, the Court observed that as is manifest from the essentials quoted above, merely stating that the electronic record is generated from the computer and printer maintained in the office in regular course of business shall not suffice and specifications of the devices used to generate the copy of the electronic record has also to be mentioned in the certificate u/s 65B (4) of the Indian Evidence Act. Hence, the source of news articles in question are inadmissible in evidence.

The Court remarked despite scrutiny of the entire evidence on record, it could not be established that the news publication was made by the Accused persons. The most essential ingredient of the offence i.e., Actus Reus could not be established on the part of the Accused persons. Thus, this Court shall not get into the question as to whether the alleged news articles were defamatory or not and straight away move to the decision.

The Court opined that in order to constitute any offence two essential ingredients are — actus reus i.e., act or omission on the part of the Accused to constitute physical element of crime and mens rea i.e., guilty intention on the part of the accused. Particularly in regard to the offence of defamation, the primary ingredient, that is actus reus, is making of a statement or imputation by words or signs or visible representations by the Accused and all other ingredients, viz. publication and intention to defame, come thereafter. The case of the complainant becomes weak on the very first aspect itself. When the Complainant has been unable to prove that it was the Accused persons who gave the alleged defamatory press release/statements, no question arises as to whether those statements were defamatory or not. In other words, where the foundation of the complaint case itself fails, the superstructure built on the same is bound to fail.

The Court thus held that the complainant has failed to attach culpability to the accused persons despite several efforts. In these circumstances, all the accused persons namely Arvind Kejriwal, Manish Sisodia and Yogender Yadav are held not guilty and acquitted for the charge leveled against them under section 500 IPC.

[Surender Kumar Sharma v. Arvind Kejriwal, 2022 SCC OnLine Dis Crt (Del) 32, decided on 20-08-2022]


*Arunima Bose, Editorial Assistant has put this report together.

Madhya Pradesh High Court
Case BriefsHigh Courts

Madhya Pradesh High Court: Sanjay Dwivedi, J. dismissed a revision petition filed questioning the validity of the order passed by the Sessions Judge whereby the charge had been framed against the applicant by the trial Court under Sections 294, 333, 353, 307, 302 of IPC and under Section 25-1(B)(B) of Arms Act, 1959.

As per the facts of the case, after registration of FIR, the injured got hospitalized and was given treatment in Govt. Hospital in which the Medico-Legal Certificate (MLC) was prepared showing that the complainant/injured had received an incised wound which was opined as simple injury. The injured was later on discharged from hospital on the same day, i.e. 07.08.2021 because the injury sustained by him was neither grievous in nature nor dangerous to life. Case against the applicant was under Sections 294, 333, 353 and 307 of IPC. Later, on 20-08-2021 when the injured died then the offence of 302 was also added.

The Counsel of the applicant submitted that the applicant was granted bail considering the fact that the injury was simple and that the injured died of septicaemia on 20-08-2021. He submitted that offence of 302 of IPC was not made out as it was due to negligence on the part of the doctors as they had not properly treated the injured and medication was not up to the mark. It was further contended that the Trial Court did not appreciate the facts in appropriate manner and observed that the cause of death was related to the injury sustained and caused by the present applicant.

Panel Lawyer appearing for the respondent/State submitted that the cause of death shown by the doctor is septicaemia which admittedly got developed in an injury caused by the present applicant and as such, offence under Section 307 has rightly been converted into Section 302 of IPC.

The Court was of the opinion that at this stage it is very difficult to form an opinion even by the trial Court at the time of framing of charge that the cause of death was not directly related with the injury caused by the applicant. The Court believed that if the charge of Section 302 has been added at the time of framing of charge on the basis of opinion given in the MLC, the same can be altered only after examination of the doctor who had given opinion.

The Court stated that at this stage, trial Court cannot indulge in critical evolution of evidence, that can be done at the time of final appreciation of evidence after conclusion of trial.

The Court while dismissing the appeal held that the Trial Court did nothing wrong because it can very well form an opinion at the time of trial or after conclusion of trial whether offence under Section 302 is made out or not. The Court further noted what was said in Veerla Satyanarayana v. State of Andhra Pradesh, (2009) 16 SCC 316 wherein the Supreme Court has held that if death is caused due to septicaemia, offence under Section 302 of IPC is rightly made out. Thus, the Court was also of the opinion that the order passed by the trial Court does not suffer from any patent or material irregularity and at this stage, it is not proper for this Court to interfere in the same or to form an opinion that the offence under Section 302 is not made out against the applicant.

[Harsh Meena v. State of Madhya Pradesh, 2022 SCC OnLine MP 1971, decided on 17-08-2022]


Advocates who appeared in this case :

Sankalp Kochar, Bhavil Pandey, Advocates, for the Applicant;

Prakash Gupta, Advocate, for the Respondent.


*Suchita Shukla, Editorial Assistant has reported this brief.

Calcutta High Court
Case BriefsHigh Courts

Calcutta High Court: Sugato Majumdar, J. allowed a criminal appeal which was assailed against the judgment and order of Additional Sessions Judge whereby the Appellants were convicted of offence under Section 304 of the IPC.

The de-facto complainant who was the mother of the deceased. The deceased was a private tutor of the son of Appellant 2 and 3 and appellant 2 was his close friend. A love-affair developed between Appellant 3 and the deceased. It was alleged that all the Appellants black-mailed the deceased and extorted lump-sum amount from him. On 12-01-2004, the deceased left his residence at 10:30 A.M. for the residence of the Appellants and later that afternoon appellant 1 told complainant that the deceased had consumed poison. On hearing this the de-facto complainant rushed to the doctor’s chamber where he was found lying on a bench. After few hours, victim expired and Hospital report showed that cause of death was poisoning. A complaint was registered.

On conclusion of the investigation, charge sheet was filed under Section 304/34 of the IPC. The Trial Court convicted the accused persons under Section 304/34 of the IPC and sentenced them to suffer rigorous imprisonments of seven years and fine of Rs. 2000/- in default rigorous imprisonment for another six months. Thus, the instant appeal.

During pendency of the appeal, the Appellant 1 expired. So, the appeal abated against him. The Counsel appearing for the appellants submitted that the instant case was a glaring example of aberration of justice. It was contended that the charge was framed for culpable homicide not amounting to murder alleging that the Appellants applied force upon the victim to consume unknown poison. In contrast, the impugned Judgment was delivered convicting the Appellants on the ground that the Appellants caused head and other injuries to the person of the deceased resulting in his death. The Appellants were never informed of or given opportunity to set up defense in respect of the different set of facts allegedly constituting the crime, for which the Appellants were convicted. Neither any question was put, nor any hints was given to the Appellants, in course of their examination under section 313 of the Criminal Procedure Code, 1973 about the different set of facts and circumstances to be considered against them. It was also stressed upon the fact that there is no evidence to the effect that the deceased ever visited the residence of the Appellants. He also contended that the post-mortem report was of some other person.

The Court noted that the Trial Judge based his findings on circumstantial evidence. The court further noted that the Postmortem Report concluded that cause of death was head injury caused by hard blunt instrument. This contradicts the medical papers associated with treatment of the deceased. Postmortem examination might have been conducted on a different dead body other than that of deceased in question. The Court was of the opinion that the Postmortem Examination Report cannot be relied upon for coming to any conclusion on cause of death of the deceased.

Once the postmortem examination report is disregarded, the very basis of conviction becomes nugatory. There remains no basis of the finding that the Appellants assaulted and caused injury to the deceased resulting in his death.

The Court also noted the aspect that except with the Appellant 2, the deceased was not seen with the other Appellants by any of the witnesses. There is no evidence to connect the deceased with the Appellant 1 and the Appellant 3 on the fateful day inviting inference that those Appellants were instrumented to cause his death in whatever manner that may be. The Court also agreed with the view of the Counsel of the appellant that the charges were framed referring to one set of facts which were read over and explained to the Appellants. The Appellants were convicted with reference to another set of facts, as noted above. The Judgment, delivered on the basis of a different set of facts of which the Appellants had hitherto been unaware of, undermines the principle of natural justice.

It is not understandable why the Trial Court, in oblivious of ocular testimonies as well as documentary and other oral evidence solely relied upon the Postmortem Report and developed a story as if to sanctify a wrong report. Inspite of absence of any evidence the Trial Court concluded that the Appellants assaulted and injured the deceased causing his death.

The appeal was allowed, and the impugned order was set aside finding that the impugned order by the Trial Court was based on surmise and conjecture, was opposed to any reason, rationality, principles of evidence and natural justice. The impugned judgment is anathema to all rationality and reasoning. Such perverse findings should be seriously looked into.

Appellant 2 and the Appellant 3 were set at liberty, and they were also released from their bail bonds.

[Anil Das v. State of West Bengal, 2022 SCC OnLine Cal 2347, decided on 18-08-2022]


Advocates who appeared in this case :

Subir Ganguly, Sumanta Ganguly, Advocates, for the Appellants;

Faria Hossain, Anand Keshri, Mamta Jana, Advocates, for the State.


*Suchita Shukla, Editorial Assistant has reported this brief.

Tripura High Court
Case BriefsHigh Courts

Tripura High Court: The Division Bench of T. Amarnath Goud and Arindam Lodh, JJ. partly allowed an appeal holding that there was no motive to kill or cause any grievous injury to the victim. The appeal was filed against the judgment and order of conviction for the offence punishable under Sections 447, 326, 307 Penal Code, 1860 and sentenced him to suffer R.I. for 10 years with default stipulation.

Prosecution’s case being that on 11-09-2014 the appellant entered into the house of the complainant and started shouting and abusing him, and at that time nephew of the complainant arrived there and asked the reason of his shouting and then the accused got furious and attacked him taking out a dagger due to which he sustained grievous bleeding injury on his abdomen and the accused was so furious that after striking once he was in desperate mode to strike repeatedly as to kill the victim.

Counsel for the appellant submitted that the prosecution had miserably failed to establish the charges leveled against the convict-appellant. He submitted that there was a scuffling between the accused-appellant and the victim and in course of such scuffling, the accused-appellant had also sustained severe injuries on his person caused by the victim and his relatives. It was further argued that if there was any assault or attack, as alleged, the same occurred at the heat of the moment and there was no intention on the part of the accused-appellant to cause any such injury to the victim.

PP supported the findings of the trial court while convicting the accused.

The Court revisited the evidences let in by the prosecution witnesses(PW) and defence witnesses(DW) in order to appreciate the submissions by the counsels and opined that it transpires clearly that initially there was an altercation between the accused-appellant and the victim which ultimately turned down into scuffling between them and it is further evident from the cross-examination of PW-6 and PW-8 that there existed some land dispute between the accused-appellant and the victim prior to the incident. Thus, it can be presumed that since there exist some dispute between the accused and the family of the victim, an altercation took place between the accused and the victim in regard to the land dispute and the accused-appellant on the heat of anger had committed such offence punishable under penal code, which act of the appellant was not at all intentional or that the appellant had no motive to kill or cause any grievous injury to the victim.

The Court held that the trial court had fairly convicted the appellant based on material evidence produced by the prosecution and there was no infirmity in the impugned findings regarding conviction however, the Court was of the opinion that considering the facts in its entirety, it seems that the offence occurred at the spur of the moment; the appellant had no intention or motive to kill the victim; the appellant does not have any criminal antecedent in his past life; he is not required in any other criminal case except the one in question.

The Court thus, partly allowing the appeal modified the sentence of the appellant from 10 years to that of 7 years.

[Chandan Adhikari v. State of Tripura, 2022 SCC OnLine Tri 492, decided on 06-07-2022]


Advocates who appeared in this case :

Mr A. Das, Advocate, for the Appellant(s);

Mr Ratan Datta, PP, Mr S. Debnath, Addl. PP, Advocates, for the Respondent(s).


*Suchita Shukla, Editorial Assistant has reported this brief.

Canada SC
Case BriefsForeign Courts

[6:3 verdict] Canada Supreme Court: In the recent matter, the Canada Supreme Court, deliberated upon the matter of expanded rape laws that were implemented in 2018 into the Criminal Code to remove barriers that have deterred victims of sexual offences from coming forward. The 9- Judge Bench of the Court comprising, Wagner C.J. and Moldaver, Karakatsanis, Côté, Brown, Rowe, Martin, Kasirer, and Jamal JJ, with a ratio of 6: 3, held that the amendments introduced to the criminal code are constitutional and if required by the Judge, to deliberate upon the facts, private documents of a complainant or an accused can be used in a trial for balancing the rights and interests of the accused, the complainant, and the public.

The majority observed that “the right to a fair trial does not guarantee “the most advantageous trial possible from the accused’s perspective” nor does it guarantee “perfect justice.” Further it was added that, “the guarantee is fundamentally fair justice, which requires consideration of the privacy interests of others involved in the justice system”

Facts and contentions of the case

J.J and Shane Reddick were accused of sexual assault in different cases in Colombia and Ontario respectively. The two accused challenged the constitutionality of Sections 278.92 to 278.94 of the Criminal Code (Code), arguing that the Parliament had jeopardized three fundamental rights guaranteed to accused persons under the Canadian Charter of Rights and Freedom (Charter), namely:

  1. the right to silence and the privilege against self-incrimination under ss. 7 and 11(c);
  2. the right to a fair trial under ss. 7 and 11(d); and
  3. the right to make full answer and defence under ss. 7 and 11(d).

In J’s case, the application judge held that one provision of the record screening regime was unconstitutional; the Crown appealed that ruling, and J cross-appealed, contesting the constitutionality of the regime in its entirety. In Shane Reddick’s case, complainant S challenged the application judge’s interlocutory constitutional ruling, which effectively prevented her from participating in the record screening process and declared the regime unconstitutional in its entirety. The complainant was granted the right to be added as a party in the record screening process by the Supreme Court.

The Law in question

Criminal Code provisions under Sections 278.92 to 278.94 of the Criminal Code set out a record screening regime to determine the admissibility of records relating to the complainant that is in possession or control of the accused.

The Canadian Charter of Rights and Freedom, under Sections 7 and 11 guarantees the right to silence and the privilege against self-incrimination, the right to a fair trial, and the right to make full answer and defence to the accused.

The Majority Ruling

The opinion of the Court was delivered by Wagner C.J. and Moldaver J in which Karakatsanis, Martin, Kasirer, and Jamal JJ., joined. The majority made the following observations regarding the constitutionality of the “record screening process”-

Admissibility of the record

The majority deliberated that the admissibility threshold in s. 278.92 does not impair fair trial rights as it does not breach ss. 7 or 11(d) of the Charter. The accused’s right to a fair trial does not include the unqualified right to have all evidence in support of their defence admitted. The admissibility threshold of the record screening regime establishes that private records are only admissible if the evidence is relevant to an issue at trial and has a significant probative value. Therefore, a balance between the rights and interests of the accused, the complainant, and the public is maintained.

The majority based its following observations that the Stage One application process in s. 278.92 is not overbroad. As the definition of “record” in s. 278.1 which supports the constitutionality of s. 278.92 of the Code, includes records that come within the enumerated categories of evidence or contain information of an intimate and highly personal nature of the complainant. Hence such records that meet the admissibility threshold for screening are adduced at a trial.

Therefore, the majority opined, Private records are analogous to s. 276 evidence, as they can also implicate myths that are insidious and inimical to the truth-seeking function of the trial. Like s. 276 evidence, private records encroach on the privacy and dignity of complainants. They too require screening to ensure trial fairness under Sections 7 and 11(d) of the Charter.

Participation of Complainant in trial

The majority deliberated that the complainant’s participation provisions in Section 278.94 in the record screening process do not violate the accused’s fair trial rights protected by Sections 7 and 11(d) of the Charter. The Court stated that firstly, the right to a fair trial does not guarantee the most advantageous trial possible, and requires consideration of the privacy interests of others involved in the justice system. Secondly, there is no absolute principle that disclosure of defence materials inevitably impairs cross-examination and trial fairness, and providing advance notice to complainants that they may be confronted with highly private information is likely to enhance their ability to participate honestly in cross-examination. Therefore, the participation of complainants is justified because they have a direct interest in records, for which they have a reasonable expectation of privacy, which are adduced in open court, and hence, their contributions are valuable in the trial.

The Dissent

Justice Brown found the record screening process unconstitutional for private records but constitutional for evidence of past sexual activity. He stated that the record screening regime is overbroad as the term ‘record’ under the process is not limited to records created in a confidential context, nor is it limited to materials containing information of an intimate or highly personal nature.

“The one–sided nature of the obligations shows that it is not rationally connected to its objective as purported concerns for a complainant’s privacy, dignity and equality interests, confidence in the justice system and integrity of the trial process are cast aside when those private records are sought to be adduced by the Crown. The regime is not the least drastic means of achieving the legislative objective. The broad definition of “record”, combined with the heightened admissibility threshold, will result in the exclusion of defence evidence that is not prejudicial and is highly relevant. A narrower regime could further the goals of empowering and protecting complainants in a real and substantial manner, while impairing the accused’s rights to a lesser extent.”

Justice Rowe agreed with Justice Brown, and explained how to make a decision when sections 7 and 11 of the Charter are brought up at the same time. He stated that accused persons must establish not only the content of the principle of fundamental justice that they allege is violated, but also that it is not outweighed by other considerations. Such an approach undermines the purpose of the broad protection of the right to a fair trial under Section 11 and the purpose of Section 1 to hold the state to the burden of proof to show that any limit is demonstrably justified in a free and democratic society.

Justice Côté agreed with Justices Brown and Rowe that the record screening process is unconstitutional and the analytical approach in respect of Section 7 of the Charter respectively. However, he disagreed with the analyses and the conclusions of both the majority and Brown J. on the interpretation of “record” and “adduce”. He stated that adopting a narrow category–based approach to the interpretation of “record” avoids many of the absurd results that inevitably follow from a broad interpretation. A broad interpretation will result in an absurd two–tiered system of admissibility that favours the Crown and will lead to the absurd consequence of having the record screening regime create a distinction between information exchanged orally and information exchanged through electronic means. With respect to “adduce”, given that the record screening regime is focused on physical records rather than on a category of evidence, its plain meaning should be adopted, as it relates directly to the physical record.

Decision

With their afore-stated observations the majority concluded that Sections 278.92 to 278.94 of the Code are constitutional in their entirety, as they apply to both s. 276 evidence applications and private record
applications. Hence, the Court opined that the Crown’s appeal should be allowed, J’s cross-appeal to be dismissed, S’s appeal allowed for participating in the trial and the application judges’ rulings quashed.

[R v. J.J., 2022 SCC OnLine Can SC 3, decided on 30-06-2022]

Karnataka High Court
Case BriefsHigh Courts

Karnataka High Court: M Nagaprasanna, J. allowed the petition filed seeking further cross examination of the child victim as the victim has now attained 18 years of age and the rigour given under S. 33(5) Protection of Children from Sexual Offences Act, 2012 (‘POCSO Act’ ) is not applicable now.

The petitioner was alleged to have indulged in acts which had become an offence punishable under Sections 4 and 6 POCSO Act and Section 376 of Penal Code, 1860 (‘IPC’). FIR was thereby filed, and the matter is pending consideration before the Sessions Judge. The petitioner filed an application under Section 311 Criminal Procedure Code (‘CrPC’) seeking recall of the victim for further cross-examination which was rejected. Aggrieved by this, an instant petition was filed.

The Court observed that in terms of Section 311 CrPC, a Court may at any stage of any inquiry, trial or other proceeding, recall a witness for re-examination, if his evidence appears to be essential for a just decision in the case.

Placing reliance on V N Patil v. K Niranjan Kumar, (2021) 3 SCC 661 wherein it was observed that the aim of every Court is to discover the truth. Section 311 CrPC is one of such provisions which strengthen the arms of a court in its effort to unearth the truth except where applications are filed as an abuse of the process of law. Such discretion will have to be exercised by the Court.

The Court noted that in terms of Section 33(5) POCSO Act, the Special Court must ensure that the child is not called repeatedly to testify in the Court. A reading of Section 33(5) POCSO Act, would clearly indicate the intention behind such enactment that in genuine cases the child-victim is not harassed. That would not mean that the accused can be deprived of his right to cross-examination in a trial, particularly, where offence punishable is beyond ten years. The mandatory nature to recall the witness for cross examination, if the evidence appears to be essential, is always necessary for a just decision in a case, except in cases where repeated applications under Section 311 CrPC are filed frivolously.

The Court further noted that the other factor that is necessary to be noticed is, the current age of the victim once the victim crosses 18 years of age, the rigour of Section 33(5) POCSO Act gets diluted, as it is the child-victim who shall not be called for cross examination or re-examination repeatedly. The word ‘child’ is defined under Section 2(1)(d) POCSO Act, to mean a person below 18 years of age. On the child reaching 18 years of age, the rigour under Section 33(5) POCSO Act gets diluted and sequentially, will not become a bar for seeking further cross-examination of the victim under Section 311 of the CrPC.

The Court held “the victim ought to have been permitted to be cross-examined by accepting the application seeking to recall the witness”.

[Mahammad Ali Akbar v. State of Karnataka, 2022 SCC OnLine Kar 1048, decided on 06-06-2022]


Advocates who appeared in this case :

Mr Syed Muzakkir Ahmed, Advocate, for the petitioner;

Mrs KP Yashodha, Advocate, for the respondent.


*Arunima Bose, Editorial Assistant has reported this brief.

Delhi High Court
Case BriefsHigh Courts

Delhi High Court: Manoj Kumar Ohri J. dismissed the petition as the employer-employee relationship was established by a witness before the court and strict rules of evidence are not applicable in such cases. 

  

The facts of the case are such that Respondent 1 (hereinafter, referred to as ‘the workman’) filed a claim application seeking compensation under the Employees’ Compensation Act, 1923 for injury suffered by him during the course of his employment with the firms namely, Sanjeev Hosiery and Maha Laxmi Hosiery. He was working as a Machine Man since January, 2003 till November, 2005 and his last drawn salary was Rs.8, 000/- per month when he met with an accident. It was claimed that the workman at the time of the incident was about 33 years of age and had suffered disability of about 60%. It was also stated that the services of the workman were terminated on the same day i.e., the date of the incident. The Commissioner, while passing the impugned order allowed the claim petition of the workman and awarded him compensation of Rs. 2, 87,136/- along with interest @ 12%. The instant appeal under Section 30 of the Employees’ Compensation Act, 1923 (hereinafter, referred to as the ‘Act’) was filed seeking setting aside of the order/judgment passed by the Commissioner, Employee Compensation, North District, Delhi. 

  

Counsel for appellants submitted that that the workman has failed to discharge the onus of proving the employer-employee relationship as the workman has claimed that no appointment letter, identity card, attendance card, etc. was ever given to him by the management in question. 

  

Counsel for respondents submitted that the procedure before the Employee Compensation Commissioner is summary in nature and thus rules of evidence are not to be strictly followed. 

  

Issue 1: Relationship of Employer and Employee 

The Court observed that inasmuch as the workman has claimed that no appointment letter, identity card, attendance card, etc. was ever given to him by the management in question. The statement of the workman to this effect is supported by that of co-workman, who was admittedly an employee of the firm(s) on the date of the accident and stated that such documents were not provided to employees by the management. It has also come on record by way of the Inspectors’ reports that the firm(s) in question was not registered. 

  

Issue 2: Reports not proven by scribe 

The Court relied on judgment Om Prakash Batish v. Ranjit, (2008) 12 SCC 212 and opined those proceedings before the Commissioner under the Workmen’s Compensation Act, the provisions of Code of Civil Procedure and Evidence Act are not applicable. The Commissioner can lay down his own procedures and for the purpose of arriving at the truth, rely upon such documents which are produced before it. 

  

The Court held “respondent 1/workman was able to establish his case before the Commissioner; the appeal is dismissed and directed the Commissioner to release the compensation amount in favor of the workman forthwith.” 

[Maha Laxmi Hosiery v. Govind Singh, FAO 548 of 2016, decided on June 6, 2022] 


Appearances: 

For petitioner- Mr Kaushal Yadav and Mr Manish Bansal 

For respondent- Mr Hari Kishan and Mr HS Kohli 


*Arunima Bose, Editorial Assistant has reported this brief.

 

IBBI
Legislation UpdatesRules & Regulations

On 14th June, 2022, Insolvency and Bankruptcy Board of India notifies Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) (Second Amendment) Regulations, 2022. This regulation seeks to amend the procedure of recording evidences, and applications made to ‘resolution professional’ by the creditors. 

 

Key Points: 

  • For the purpose of resolving the process of insolvency, creditors may furnish the relevant records of transaction/debt/default by operational creditor. 
  • For making such applications, copies of Form GSTR-1 and GSTR-3B under GST and e-way bill will have to be provided. For the successful submission of these applications the Operational creditors will require their PAN and e-mail. 
  • Documents of debtors are part of major evaluation while assessing their insolvency, while doing so the resolution professional may go through his documents under Regulation 4(1). 
  • With newly added provision Regulation 4 (2) and (3), the debtors are bound by law to provide relevant information for such evaluation. Along with the management personnel of debtors, creditors will have to provide records of assets and liabilities stock statements, valuation reports, etc., of the debtor. 
  • In the process of preparing information memorandum of the corporate debtor, the resolution professional with require from the creditors, under Regulation 35-A, the financial health for auditing his assets and liabilities.  
  • To find out the fair value/liquidation value two valuers are allotted to evaluate the inventories and fixed assets of the debtor. Under the Resolution Plan of these Regulation, Regulation 35 (1)(b) has been modified. 
  • After this evaluation, when two ‘significantly different’ [defined under Explanation (ii)] estimates are submitted from valuers, third valuer for ‘asset class’ [defined under Explanation (i)] is appointed. Both the terms are clearly defined by this amendment. 

 


*Shubhi Srivastava, Editorial Assistant has reported this brief. 

Delhi High Court
Case BriefsHigh Courts

Delhi High Court: A Division Bench of Mukta Gupta and Mini Pushkarna, JJ. upheld the impugned conviction order considering the accused has committed heinous crime of rape on a four year girl of tender age within his close family.

The facts of the case are such that the appellant is alleged to have committed aggravated penetrative sexual assault upon baby ‘M’ and was charged for offence punishable under Section 6 of the Protection of children from of Sexual Offences Act i.e. POCSO Act. The appellant was thereby awarded sentence of imprisonment for life along with fine of Rs 10,000 in default of payment of fine, the Trial Court has further awarded sentence of Simple Imprisonment for a period of one month, for the said offence. The present is an appeal under Section 374(2) read with Section 383 Criminal Procedure Code i.e. CrPC challenging the order passed by Additional Sessions Judge-01 (POCSO), South-East District, Saket Courts, New Delhi and prayed for leniency by reducing the sentence awarded to the appellant.

Counsel for appellants submitted that the prosecution has not been successful in establishing the guilt of the appellant in respect of offence punishable under Section 6 of the POCSO Act. It was contended that the testimony of the prosecution witnesses did not inspire any confidence and no conviction or sentence can possibly be awarded on the basis of such evidence. It was also submitted that the witnesses who were the parents of the victim had turned hostile and had rather deposed in favour of the appellant. Further, even the victim was not examined, which was fatal to the prosecution case.

Counsel for appellants submitted that there were mitigating circumstances in favour of the appellant for considering his case for reduction of sentence. She argued that the appellant had clean antecedents; was 35 years of age at the time of offence; he was married and his wife and six children were dependent on him, the appellant being the sole bread earner. She further argued that the jail conduct of the appellant was satisfactory and on path of the reformation. Thus, she prayed for reduction in the sentence awarded to the appellant.

The Court observed that the law is very clear in this regard that evidence of hostile witness need not be totally rejected. It can be accepted to the extent his version is found to be dependable and is consistent with the case of prosecution or defense.

It was further observed that the contention as raised by the counsel for the appellant that the victim child was not examined cannot be fatal to the prosecution case, for the reason that the victim was too young, hardly 4 years old at the time of the incident. Being of such tender age she was not in a position to give any statement. The Trial Court has rightly held that the tender age of the victim coupled with her lack of maturity to understand as to what ghastly/ wrong act had been committed with her, was the reason why she was not examined, or arrayed as a witness. Thus, the witnesses presented and evidence produced sufficiently proves penetrative sexual assault even in the absence of any direct evidence/ testimony of the victim or her parents. This scientific evidence coupled with the other circumstantial evidence unerringly point to the committal of the offence by the accused.

The Court held that the “Trial Court rightly held that this sufficiently proves penetrative sexual assault even in the absence of any direct evidence/ testimony of the victim or her parents. This scientific evidence coupled with the other circumstantial evidence unerringly point to the committal of the offence by the accused”

The Court further held “As regards the prayer for leniency by reducing the sentence awarded to the appellant, the act of the accused, considering the fact that he was already married having six children and being related to the parents of the minor victim, does not inspire any case for leniency in his favour. The accused has committed heinous crime of rape on a four year girl of tender age within his close family. This Court finds no justification in reducing the sentence awarded to the appellant.” [Mukish v. State, 2022 SCC OnLine Del 1762, decided on 19-05-2022]

 


Apperances

For Petitioner: Ms Inderjeet Sidhu,

For State: Mr Tarang Srivastava and Yogesh Tanwar


*Arunima Bose, Editorial Assistant has reported this brief.

Case BriefsHigh Courts

Andhra Pradesh High Court: A Division Bench of Prashant Kumar Mishra, CJ and M Satyanarayan Murthy, J. dismissed the appeal being devoid of merits.

The facts of the case are such that the petitioner (respondent herein) is a company incorporated under the Companies Act, carrying on shipping business known as ―Norvic Shipping Asia Pte. Limited whereas the respondent (appellant herein) is another company carrying on its business in the name and style of ―VR Commodities Private Limited. The petitioner and respondent entered into fixture note, Charterparty and settlement agreement for transportation of coal from ―Muara Bunyuasi to ―Tuticorin and ―New Mangalore, India. But there is a breach of agreement of Charter party allegedly and the petitioner sustained loss due to default of certain terms under the charter party agreement, requiring the petitioner to have arbitral proceedings. To make good for the amount possibly to recover from the respondent, the petitioner sought various interim reliefs under Section 9 of the Arbitration and Conciliation Act. The single Judge ordered ad-interim injunction on in favour of the petitioner against the respondent restraining the respondent, from directly or indirectly through its nominees, agents, associates, affiliates, representatives or employees, in any manner, acquiring, selling, encumbering, alienating, transferring, issuing delivery orders, getting possession or otherwise dealing with the cargo. Aggrieved by this, present appeal was preferred under Section 37 of the Arbitration and Conciliation Act.

Counsel for the appellant Sri Mr Sanjay Suraneni submitted that since Charterparty is inadmissible in evidence and passing of order under Section 9 of the Arbitration and Conciliation Act based on arbitration clause in the substantive agreement, is a serious illegality. The charterparty between the petitioner and respondent is unstamped and when it is presented before the officer, who is authorised to receive the document in evidence, unless it is impounded collecting stamp duty and penalty under Section 35 of the Indian Stamp Act, 1899, the same is inadmissible, thereby the impugned order is illegal.

According to Section 35 Indian Stamp Act there is a clear prohibition against receipt of unstamped and not duly stamped document in evidence by public officer, who is entitled to receive such document in evidence and when it is produced before him, he shall examine the same and impound the same, collect stamp duty payable on the document.

As per Schedule-I and Schedule-I A, stamp duty is to be paid on charter party. Whereas, Schedule – I of the Indian Stamp Act and Schedule –IA (Andhra Pradesh) did not prescribe any stamp duty payable on arbitration agreement. When arbitration agreement though forms part of substantive agreement, it can be separable from the substantive agreement i.e. charter party.

 Doctrine of Separability

The doctrine of separability treats an agreement to arbitrate contained within a contract as an independent agreement that is deemed to be separable from the main contract. The doctrine preserves the validity and enforceability of the arbitration clause in a contract, even when the primary contract is found to be invalid and unenforceable, providing autonomy to the arbitration clause. The UNCITRAL Model law on International Commercial Arbitration, 1985, Article 16[1], integrates the doctrine of separability as an arbitration clause which forms part of a contract shall be treated as an agreement independent of the other terms of the contract.

The Doctrine was first recognised in England, through the landmark judgment in ―Heyman vs. Darwins Ltd. 1942 AC 356, which laid down the principle of separability of arbitration agreement, and was later incorporated in the Arbitration Act of 1996, based on UNCITRAL Model Law through legislation.

The Court remarked that in the charter party, English law alone is applicable the seat of the arbitration is at Singapore, thus it adverted to few decisions under English law relating to separability of arbitration clause from original agreement and relied on judgments Fiona Trust & Holding Corp v. Privalov (2007) UKHL 40 and Sulamrica Cia Nacional de Seguros SA v. Enesa Engenharia SA (2012) WLR (D) 148 wherein it was observed that the only purpose of the doctrine of separability is to give legal effect to the parties’ intention of resolving disputes through arbitration and not to insulate the arbitration agreement from the substantive contract for all purposes.

A Singapore Court judgment named BNA v. BNB, (2019) SCGA 84 was relied on to observe that the root cause behind evolution of the doctrine of separability is the desire to give effect to the arbitration agreement even if the substantive contract is ineffective. Court refused to accept this as limitation of the doctrine following which it was held that it is legitimate to presume that the parties want the arbitration clause to survive. The only limitation the court stated was to only give ‘reasonable effect’ to this intention.

The Court placed relied on N.N. Global Mercantile Private Limited v. Indo Unique Flame Limited, (2021) 4 SCC 379 and observed that separability of arbitration agreement from substantive contract in which it is embedded is well settled law. Invalidity, ineffectiveness or termination of substantive commercial contract does not effect the validity of the arbitration agreement.

It was further noted that in view of the settled law laid down by the United Kingdom and separate clause contained in Singapore Arbitration Act, the clause relating to settlement of disputes by arbitration shall be an independent and autonomous clause. Though Charterparty is not stamped, still, in view of separability of arbitration clause, which does not require any stamp duty payable thereon either under the Indian Stamp Act or law relating to the State of Andhra Pradesh, the arbitration clause is independent clause. When once the arbitration agreement is not liable for stamp duty, based on such arbitration clause, though the substantive agreement is not duly stamped, the Court can take into consideration of such clause independently and pass appropriate orders under Section 9 of the Arbitration and Conciliation Act, 1996.

The Court thus held “we find no merits in the contention of the learned counsel for the appellant-respondent, hence the order under challenge cannot be interfered on the ground that the substantive agreement is not stamped.” [VR Commodities Pvt. Ltd. v. Norivic Shipping Asia Pte. Ltd., 2022 SCC OnLine AP 1001, decided on 05-05-2022]


Counsel for respondent- Sri Amitava Majumdar


Arunima Bose, Editorial Assistant has reported this brief.

Chhattisgarh High Court
Case BriefsHigh Courts

Chhattisgarh High Court: A Division Bench of Arvind Singh Chandel and Sanjay K. Agrawal, JJ. dismissed the acquittal appeal being devoid of merits.

The facts of the case are such that marriage between the deceased and the son of the Respondent/accused was solemnised in the month of April, 2018. In November the same year, Mahima Kaushik committed suicide by hanging herself. FIR was registered and charges were framed and the Trial Court acquitted the accused. Assailing this acquittal order, instant appeal was filed.

Counsel for the Appellant/State submits that the Sessions Judge has committed manifest illegality in acquitting the Respondent/accused of the charge under Section 304B IPC as all the ingredients constituting the offence have been duly established by the prosecution and, therefore, the judgment of acquittal deserves to be set aside.

The Court relied on judgment Anjanappa v. State of Karnataka, (2014) 2 SCC 776, it has been held by the Supreme Court as follows:

“9. It is well settled that an order of acquittal is not to be set aside lightly. If the view taken by the trial Court is a reasonably possible view, it is not to be disturbed. If two views are possible and if the view taken by the trial Court is a reasonably possible view, then the appellate Court should not disturb it just because it feels that another view of the matter is possible. However, an order of acquittal will have to be disturbed if it is perverse. We have examined the trial Court’s order of acquittal in light of above principles. We are of the considered opinion that the High Court was justified in setting it aside as it is perverse.

The Court after perusing evidence and facts observed that the finding of the Trial Court that the prosecution has failed to prove that soon before the death of the deceased she was subjected to cruelty on account of demand of dowry is totally based on the evidence available on record. Furthermore, from perusal of the evidence, it also appears that the fact regarding demand of dowry itself is suspicious.

The Court thus held “there is no manifest legal error in the judgment of acquittal recorded by the Learned Additional Sessions Judge and we do not consider it a fit case where this Court should re-appreciate the entire evidence on record or it is not a case where the view taken by the Additional Sessions Judge is so arbitrary or bears manifest error requiring interference.”

[State of Chhattisgarh v. Chameli Kaushik, 2022 SCC OnLine Chh 691, decided on 11-04-2022]


Appearances

For Appellant/State: Shri Kapil Maini


Arunima Bose, Editorial Assistant has reported this brief.

Case BriefsHigh Courts

Gujarat High Court: Ilesh J. Vora, J. allowed an application for pre-arrest bail of the accused in connection with FIR which was filed under offences under Sections 11(1)(d), 11(1)(e), 11(1)(f) and 11(1) (h) of the Prevention of Cruelty to Animals Act, 1960 and Sections 6(a), 4, 3 and 8(2) of Gujarat Animals Preservation Act and Section 114 of IPC as well as Section 119 of the Gujarat Police Act.

Advocate of the appellant submitted that the appellant had been falsely implicated in the alleged offence and custodial interrogation of the applicant was not essential for the purpose of investigation.

The Court heard the respective parties and after considering the facts and circumstances of the case it was noted that the applicant was neither present at the place, nor any recovery being effected at his behest. The only role attributed to the present applicant was to the effect that he was supplier of prohibited animals. The Court further stated that nothing was brought on record to suggest that the applicant had supplied the animals.

The Court was of the view that there was no possibility of his fleeing from justice and there was nothing to be tempered with the evidence. Thus, the Court allowed the pre-arrest bail application on certain conditions. The Court however clarified that it was open for the Investigating Agency to apply to the competent Magistrate, for police remand of the applicant.

[Asrafkhan Dilavarkhan Lashari v. State of Gujarat, 2022 SCC OnLine Guj 447, decided on 04-04-2022]


Counsels

for the Applicant(s) 1: Mr Jivabhai L Bhammar, Mr BM Mangukiya and Ms Bela A Prajapati

for the Respondent(s) 1: Mr Manan Maheta, APP


Suchita Shukla, Editorial Assistant has put this report together 

Case BriefsHigh Courts

Andhra Pradesh High Court: Ninala Surya, J., decided to not interfere with the impugned order and dismissed the civil writ petition.

The facts of the case are such that the respondent/plaintiff filed the suit for recovery of a sum of Rs 1, 71,600/- with future interest and costs. The petitioner/defendant filed written statement contending that the suit promissory note is a forged document and his signatures were forged. At the evidence stage, the petitioner filed an interim application under Section 45 of the Indian Evidence Act, 1872 to send a promissory note to the handwriting expert by receiving specimen writings in the four promissory notes which are annexed to the said application and to receive his specimen signatures in the open Court along with the vakalatnama and written statement for comparison. The respondent/plaintiff filed counter and opposed the said application. After considering the matter, the Trial Court dismissed the said application. Hence, the present Civil Revision Petition was filed.

The Court relied on judgment Bande Siva Shankara Srinivasa Prasad v. Ravi Surya Prakash Babu, 2015 SCC OnLine Hyd 467  wherein it was observed “No time limit could be fixed for filing applications under Section 45 of the Indian Evidence Act for sending the disputed signature or writings to the handwriting expert for comparison and opinion and same shall be left open to the discretion of the Court; for exercising such discretion when exigencies so demand, depending upon the facts and circumstances of each case”.

Thus the view of the Trial Court that he has not taken steps seeking to refer the suit promissory note for expert opinion before commencement of Trial or prior thereto, but, after closure of the evidence on the plaintiff’s side and as such the application is liable to be dismissed is not tenable in law.

The Court further relied on judgment P.Padmanabhaiah v. G.Srinivasa Rao, 2016 SCC OnLine Hyd 517 wherein it was observed “In the well considered view of this Court, the defendants signatures on the Vakalat and the Written Statement cannot be considered as signatures of comparable and assured standard as according to the plaintiff even by the date of the filing of the vakalat the defendant is clear in his mind about his stand in regard to the denial of his signatures on the suit promissory note and the endorsement thereon and as the contention of the plaintiff that the defendant might have designedly disguised his signatures on the Vakalat and the Written Statement cannot be ruled out prima facie.”

 “………There is no point in sending to an expert the documents of doubtful nature and character and add one more piece of unreliable evidence and burden the record by wasting the time and money of the parties. When there are no signatures of comparable and assured standard on the material record before the trial Court, it is unsafe to obtain the signatures of the defendant in open Court and send the said signatures and also his vakalat and written statement to an expert for obtaining his opinion after comparison of the signatures thereon with the disputed signatures on the suit promissory note, as any such opinion obtained from a handwriting expert on such material is not going to be of any help to the trial Court in effectively adjudicating the lis more particularly in the light of the admitted legal position that expert’s opinion evidence as to handwriting or signatures can rarely, if ever, take the place of substantive evidence.”

In light of the above discussion the Court held Civil Revision Petition fails and the same is liable to be dismissed. [Byalla Devadas v. Sivapuram Rama Yogeswara Rao, Civil Revision Petition No. 67 of 2022, decided on 16-03-2022]

Appearance

For petitioner- Mr.Nagaraju Naguru

For respondent- Mr.Turaga Sai Surya


Arunima Bose, Editorial Assistant has reported this brief.

Case BriefsHigh Courts

Madhya Pradesh High Court: Vivek Agarwal, J., took up a bail application moved by the Applicant accused for offences punishable under Sections 376 (rape), 506 (criminal intimidation) IPC, under Sections 3,4 POCSO Act, under Sections 3(1)(W)(ii), 3(2)(v) SC-ST (Prevention of Atrocities) Act and under Sections 67, 67(A) The Information Technology Act.

As per the prosecution story, the Applicant was known to the Prosecutrix and had committed rape upon her. He took a video of the same and threatened her not to speak of it with anyone. Later on, the Prosecutrix received the said video on her mobile phone. She then brought it to the notice of her mother who took her to the police station to register the crime. The Court, while examining the submissions of the parties, drew its attention to the fact that despite the Prosecutrix producing the video clip before the police, the same was not made a part of the case diary. The Court, vide order dated 22-03-2022, directed the police to provide an explanation for the lapse.

T.I Bahoriband, District Katni tendered her unconditional apology for not making it a part of the case diary sent to the Office of the Advocate General and based on the which it was evident that the T.I of Police Station Sleemnabad, District Katni was prima facie guilty of suppressing the correct facts & not forwarding the relevant copies of the document(s), which were filed before the competent Court.

The Court directed the Deputy Inspector General of Police to conduct an inquiry into the conduct of delinquency on the part of the T.I. Sleemnabad, District Katni, who had forwarded incomplete case diary pertaining to Crime No.424/2021 suppressing the material document(s) so as to facilitate bail of the accused & furnish its report through Principal Registrar (Judicial).

The bail application was dismissed as withdrawn after the counsel for the applicant was informed that a compact disc of obscene video had been recovered from the mobile of the applicant.[Shivkumar Kushwaha v. State of Madhya Pradesh, Misc. Criminal Case No. 5948 of 2022, decided on 24-03-2022]


For applicant: Mr Ram Bihari Gautam

For State: Mr Piyush Jain


Suchita Shukla, Editorial Assistant has reported this brief.

Case BriefsHigh Courts

Allahabad High Court: Siddhartha Varma, J., held that it is the bounden duty of the enquiry officer to have seen whether the charges were proved on the basis of the evidence which was led by it.

A station house officer had given information to the Superintendent of Police that the petitioner under influence of alcohol had misbehaved with the private cook Shamshad Ahmad. Thereafter, the petitioner was suspended.

An enquiry report was filed as per which the petitioner was found to be guilty of the charges levied against him and a major punishment of removal was proposed under Rule 4(1) of the Uttar Pradesh Police Officers of the Subordinate Ranks (Punishment and Appeal) Rules, 1991. Thereafter, the punishment order was passed, and the petitioner was removed from service.

Since the revision filed by the petitioner were dismissed, instant writ petition was filed.

High Court noted that impugned order cannot be sustained in the eyes of the law.

Bench added that, no individual who had seen the incident was summoned as an eyewitness to prove the incident. Also, there was only a medical report that there was a suspicion on account of the fact that there was a smell coming of alcohol from the petitioner while there was no blood report or urine report of the petitioner which actually would have proved that the petitioner had actually consumed liquor/alcohol to an extent that he was in a state of drunkenness.

Hence, the petition was allowed in view of the above. [Sangram Yadav v. State of U.P., 2022 SCC OnLine All 169, decided on 10-3-2022]


Advocates before the Court:

Counsel for Petitioner :- Ishan Deo Giri

Counsel for Respondent :- C.S.C.

Case BriefsHigh Courts

Rajasthan High Court: A Division Bench of Akil Kureshi, CJ and Rekha Borana, J. dismissed the petition and kept it open for the petitioners to file a fresh public interest petition.

A PIL was filed by the petitioners sustaining serious allegations with respect to mismanagement of respondent 2 Arth Credit Cooperative Society.

The Court observed that in this public interest petition as it stands today, there are no supporting documents or informative evidence, even prima facie sustaining serious allegations made by the petitioners with respect to mismanagement of the respondent 2 Arth Credit Cooperative Society.

The Court further observed that a citizen approaching the Court in a public interest jurisdiction holds a greater duty to make full research and present necessary facts before the Court to cause further investigation.

The Court thus held “we are not inclined to entertain this petition.”[Gajendra Purbia v. Union of India, D.B. Civil Writ Petition (PIL) No. 3069/2022, decided on 02-03-2022]


Appearances:

For Petitioner(s): Mr. Sumit Singhal


Arunima Bose, Editorial Assistant has reported this brief.

Case BriefsHigh Courts

Allahabad High Court: Sanjay Kumar Pachori, J., while addressing a matter with regard to recalling of the witnesses expressed that, Section 311 of the Code confers a wide discretion on the Court to act as the exigencies of justice require.

Present application was filed under Section 482 of the Code of Criminal Procedure was filed to quash the impugned order passed by the Additional Sessions Judge arising out of crime registered under Section 307 of the Penal Code, 1860, by which two applications filed by the applicant/accused under Section 311 of the Code have been rejected.

Analysis, Law and Discussion

High Court noted that trial Court by its order dismissed the applications for recalling the witnesses for further cross-examination and rejected the submission urged on behalf of the applicant on the ground that the defence had elaborately cross-examined.

If there is any contradiction or ambiguity in the prosecution evidence. It is a settled position of law that the accused would be entitled to benefit of the doubt.

Trial Court’s order had been assailed on two grounds:

  • After reading the evidence of PW-1 and PW-2 the identity of scribe Suresh Singh was not clear.
  • If the complaint had been written by Suresh Singh, son of Rama Shankar who died about one year before the incident, in that case, the genesis of the prosecution case would be proved false.

Section 311 is manifestly in two parts, the first part of the Section has given discretion to the Court and enables it any stage of an inquiry, trial, or other proceedings under the Code, (a) to summon anyone as a witness, or (b) to examine any person in the Court, or (c) to recall and re-examine any person whose evidence has already been recorded; on the other hand, the second part of the Section is mandatory and imposes an obligation on the Court, to do one of aforesaid three things if the new evidence appears to it essential to the just decision of the case.

Further, the Court observed that, Section 311 of the Code gave wide power to the Court to summon a material witness or to examine a person present on Court or to recall a witness already examined.

The said Section confers a wide discretion on the court to act as the exigencies of justice require.

The discretion given by the first part is very wide and its very width requires a corresponding caution on the part of the court. But the second part does not allow any discretion; it binds the court to examine fresh evidence and the only condition prescribed is that this evidence must be essential to the just decision of the case. Whether the new evidence is essential or not must of course depend on the facts of each case and has to be determined by the presiding Judge [Ram Jeet v. State of U.P., AIR 1958 All 439]

In the present matter, Bench observed that, PW-1 is not an eyewitness of the incident, the FIR had been lodged by PW-1 after about 46 hours of the incident on the basis of information received from PW-2.

The application for recalling PW-1 had been filed after about 4 years of recording the statement-in-chief of the PW1 and another application for recalling PW-5 filed after about one year of recording the examination-in-chief of PW-5.

In Court’s opinion, the trial judge gave well-founded reasons for rejecting the applications.

Hence, the impugned order passed by the trial court was affirmed and the present application under Section 311 of the Code was dismissed.[Bheem Singh v. State of U.P., 2022 SCC OnLine All 40, decided on 18-1-2022]


Advocates before the Court:

Counsel for the Applicant: Neeraj Pandey, Om Prakash Singh Sikarwar

Counsel for the OP: G.A.