Case BriefsSupreme Court

Supreme Court: Answering an interesting question of law, the Bench of AM Khanwilkar* and CT Ravikumar, JJ has held that no remedy of appeal is envisaged against an order of the State Election Commission or its delegatee – the Collector, under Section 14B(1) of the Maharashtra Village Panchayats Act, 1959, rejecting the complaint or to drop the proceedings for declaration of a Sarpanch/Member having incurred disqualification.

The Court explained that such order becomes final and if passed by the Collector as the delegatee, is deemed to have been passed by the State Election Commission itself. Even the State Election Commission cannot step in thereafter in any manner much less in the guise of reconsideration or review of such order. It must follow that the Divisional Commissioner would have no jurisdiction (ab initio) to entertain assail to such an order of the Collector.

Issue

Whether an appeal could be filed before the Divisional Commissioner against an order passed by the Collector under Section 14B(1) of the Maharashtra Village Panchayats Act, 1959, declining to disqualify a Sarpanch/Member of the Panchayat for allegedly having failed to lodge an account of election expenses within the time and in the manner prescribed by the State Election Commission, without offering any good reason or justification for such failure?

Analysis

No appeal is provided against the order of Collector (or of State Election Commission) refusing to disqualify the Sarpanch/Member under Section 14B(1). Similarly, no appeal is provided even against the order of the Divisional Commissioner (or of State Election Commission) under Section 14B(2). A limited window against the order under Section 14B(1) passed by the Collector (or State Election Commission itself) declaring the Sarpanch/Member of a Panchayat as disqualified, is kept open before the Divisional Commissioner (or the State Election Commissioner, if the order under Section 14B(1) is or were to be 10 passed by the State Election Commission itself) – to remove such disqualification or to reduce the period thereof in deserving cases. To put it tersely, for the nature of power exercised by the State Election Commission under Section 14B, no remedy of appeal is envisioned by the statute.

The power of the State Election Commission, bestowed under sub-Section (1) or (2) of Section 14B, though concerns subject of disqualification of a person, it operates in two different silos. In that, the power under Section 14B(2) gets triggered only after an order of disqualification is passed under Section 14B(1). The former is not activated at all in a case where the application or the proceedings to declare the Sarpanch/Member as disqualified, is rejected or dropped.

“Taking any other view would inevitably result in a situation where the power exercised by the State Election Commission under Section 14B(1) could be appealed against before itself (its delegatee). That cannot be countenanced. For, an appeal cannot lie before the same Authority/functionary who had passed the order of rejection of prayer to declare the member concerned as disqualified. Sans an express statutory intent to provide appeal against the order rejecting application to declare a person disqualified, it must follow that upon passing such order the power under Section 14B is fully exhausted by the State Election Commission (or its delegatee, as the case may be).”

Indubitably, an authority rejecting the proposal regarding disqualification, cannot sit “in appeal” over its own order of rejection.  Notably, there is no express power bestowed upon the State Election Commission or its delegatee to review its own decision passed under Section 14B(1) or 14B(2) of the Act, as the case may be.

Concededly, Section 16 is a provision which speaks about the disability from continuing as the member of a Panchayat, consequent to incurring disqualification or has been so declared under Section 14 of the Act. Once a Sarpanch/Member is disqualified under Section 14B by virtue of an order under Section 14B(1), it would give rise to two situations –

First, the person concerned can invoke option under Section 14B(2) for removal of his disqualification or for reduction of the period of such disqualification.

Second, the obligation fastened upon the Collector to decide the issue as to whether vacancy has occurred on account of such disqualification.

That question is required to be answered by the Collector in the first instance, in terms of Section 16(2) and to take follow-up steps thereafter in filling up such vacancy. The decision of the Collector on such question, referable to sub¬Section (2) of Section 16, however, has explicitly been made appealable before the State Government or the delegate of the State Government. That is, completely, a different regime albeit  a consequence of process referred to in Section 14B(1) to declare a Sarpanch or a member as having   incurred disqualification.

“This question decided by the Collector, is essentially in his capacity as a delegatee of the State Election Commission and, de jure, deemed to have been decided by the State Election Commission itself.  Be that as it may, the question decided by the Collector under Section is, in one sense, a ministerial act bestowed upon him to ascertain whether vacancy had arisen as a consequence of the disqualification order and to fill up such vacancy.”

Hence, if the State Election Commission or its delegatee were to reject or drop the proceedings against the concerned person or member initiated under Section 14B(1), as being devoid of merits or for any other reason, the complainant does not have remedy of appeal against such decision. Such an order becomes final and is not appealable at all. Indeed, it can be assailed before the constitutional court under Article 226 of the Constitution of India.

[Shobhabai Narayan Shinde v. Divisional Commissioner, Nashik Division, 2022 SCC OnLine SC 7, decided on 04.01.2022]


Counsels

For appellants: Advocate Sudhanshu S. Choudhari

For respondent: Advocate Nishant R. Katneshwarkar


*Judgment by: Justice AM Khanwilkar

Case BriefsSupreme Court

Supreme Court: With an aim to curtail the pendency before the High Courts and for speedy disposal of the appeals concerning payment of compensation to the victims of road accident, the bench of SA Nazeer* and Krishna Murari, JJ has asked the Department of Justice, Ministry of Law and Justice to consider constituting ‘Motor Vehicle Appellate Tribunals’ by amending Section 173 of the Motor Vehicles Act so that the appeals challenging the award of a Tribunal could be filed before the Appellate Tribunal so constituted.

The order came after the Court noticed that a large number of claim petitions, under the provisions of the Motor Vehicles Act, 1988 are being filed before the various Claims Tribunals established thereunder throughout the country. Against the awards of the Tribunals, appeals are filed under Section 173 of the Motor Vehicles Act, 1988 before the relevant High Court, either by the claimants or by the insurers and owners of the offending vehicles. Large number of such appeals are pending before the various High Courts.

The Court went on to give the following suggestions:

  • The various Benches of such an Appellate Tribunal could consist of two Senior District Judges.
  • To ensure access to justice and to avoid pendency, Benches of the Appellate Tribunal in various regional cities may be set up, in addition to the capital city of each State as may be indicated by the relevant High Court. For this purpose, appropriate rules governing the procedure of the Appellate Tribunal may also be framed.
  • No further appeal against the order of the Appellate Tribunal need be provided. If any of the party is aggrieved by the order of the Appellate Tribunal, he can always invoke the writ jurisdiction of the concerned High Court for appropriate reliefs.

[Rasmita Biswal v. National Insurance Company Ltd., 2021 SCC OnLine SC 1193, decided on 08.12.2021]


*Judgment by: Justice SA Nazeer

Know Thy Judge | Justice S. Abdul Nazeer

Case BriefsHigh Courts

Kerala High Court: P.B. Suresh Kumar and C.S. Sudha, JJ., held that ad interim orders cannot be impugned in an appeal under Section 5(i) of the Act. The Bench stated,

“If appeals against such orders are entertained, the appellate court would be usurping the original jurisdiction of the Court under Article 226 of the Constitution.”

The Court was dealing with the issue whether an appeal lies to a Division Bench under Section 5(i) of the Act against an interlocutory order in a writ petition, while the main writ petition is pending and if so, what are the circumstances under which or the types of cases in which such an appeal would lie. On being required to submit as to the reason for challenging such the order, instead of moving the Single Judge for vacating/varying the order, the appellants submitted that despite the appellants entering appearance and filing counter affidavit in the proceedings, the Single Judge extended the impugned ad interim order.

Section 5 of the Kerala High Court Act, 1958 reads as:
“5. Appeal from judgment or order of Single Judge:-An appeal shall lie to a Bench of two Judges from- (i) a judgment or order of a Single Judge in the exercise of original jurisdiction; or
(ii) a judgment of a Single Judge in the exercise of appellate jurisdiction in respect of a decree or order made in the exercise of original jurisdiction by Subordinate Court”

In K.S.Das v. State of Kerala, 1992 (2) KLT 358, it was held that even though an appeal could be filed against an interlocutory order passed in a writ petition, in order to be qualified for challenge in an appeal, the order shall be either substantially affecting or touching upon the substantial rights or liabilities of the parties or which are matters of moment and cause substantial prejudice to the parties. It was, however, clarified that such orders should not, however, be ad interim orders or orders merely of a procedural nature.

ad interim Order v/s Intermediate Order

The expression ‘ad interim’ only means ‘in the meantime’ or ‘temporarily’. The expression ‘ad interim order’ is understood in legal parlance as an order which would operate till the hearing of the matter.

The question for consideration before the Court was whether the order impugned in the appeal was an ad interim order or an intermediate order against which an appeal is provided for under Section 5(i) of the Act.

Noticeably, the bar under sub-section (2) of Section 397 of CrpC in entertaining revision against interim order does not apply to the category of orders which are not mere orders of a procedural nature, but can be treated as a kind of intermediate orders which affect or touch upon the rights of parties or are matters of moment. Similarly, in order to be qualified for a challenge under Section 5(i) of the Act, the order shall be conclusive at least as to any of the subordinate matters with which it deals.

Reverting to the facts, the Bench observed that an ad interim order was passed in the matter as the Single Judge found it necessary to pass such an order to protect the interest of the petitioner in the writ petition. The Bench stated,

“An order of this nature, according to us, cannot be understood, at any rate, as conclusive as to any matter, main or subordinate. The same cannot also be understood to be one intended to be in force until the main dispute is decided.”

Hence, orders of this nature can only be understood as one intended to be in force until varied or modified. Therefore, merely for the reason that the Single Judge had extended the impugned order after the appellants entered appearance and filed counter affidavit, it could not be said to be one intended to be in force until the main dispute was decided.

The Bench held that the ad interim order would continue to be the same until an adjudication is made by the Court, at least for the interlocutory purpose, irrespective of the fact as to whether the opposite side had entered appearance. Therefore, such orders could not be impugned in an appeal under Section 5(i) of the Act, for if appeals against such orders are entertained, the appellate court would be usurping the original jurisdiction of the Court under Article 226 of the Constitution. Accordingly, the appeal was dismissed. [P.T.Thomas v. Bijo Thomas, 2021 SCC OnLine Ker 4000, decided on 26-10-2021]


Kamini Sharma, Editorial Assistant has reported this brief.


Appearance by:

For the Petitioner: S.Nidheesh, Advocate and C.S.Manilal, Advocate

For the Respondents: Denu Joseph, Advocate and T.K.Vipindas, Sr. G.P.

Case BriefsHigh Courts

Delhi High Court: While stating the well-settled law that even when an appellate Court affirms the order of the Court below, it has to adjudicate on the issues which arise in the appeal, Subramonium Prasad, J., emphasized why reasons laid down in a judgment are essential and in view of that referred to certain decisions of the Supreme Court.

Present matter was directed against the decision of Additional Sessions Judge arising out of the order passed by Metropolitan Magistrate.

The Metropolitan Magistrate had dismissed the petition filed under Section 12 of the Domestic Violence Act on the ground of non-prosecution. Further, the MM had also issued notice to the Deputy Director, Directorate General of All India Radio to furnish details of empanelment of the petitioner along with other details in order to determine the maintenance.

Additional Sessions Judge heard the appeal under Section 29 of the DV Act.

Under Section 29 of the DV Act, an appeal is maintainable against an order passed by the Magistrate on both law and facts.

“…reasons are the live links between the mind of the decision taker to the controversies in decision and the decision or conclusion arrived at. An order sans reasons takes away a very valuable right of a litigant – to challenge that order.”

 Supreme Court’s decision in CCT v. Shukla & Bros., (2010) 4 SCC 785 was also referred wherein it was observed that,

“…Court has consistently taken the view that recording of reasons is an essential feature of dispensation of justice. A litigant who approaches the court with any grievance in accordance with law is entitled to know the reasons for grant or rejection of his prayer. Reasons are the soul of orders…” 

“…A judgment without reasons causes prejudice to the person against whom it is pronounced, as that litigant is unable to know the ground which weighed with the court in rejecting his claim and also causes impediments in his taking adequate and appropriate grounds before the higher court in the event of challenge to that judgment…”

Supreme Court’s decision in State of Orissa v. Dhaniram Luhar, (2004) 5 SCC 568 was also referred to.

Bench held that the impugned order was completely bereft of any reasons.

Duty of the Appellate Court is to see whether the Metropolitan Magistrate had considered the claim of the petitioner on merits and what are the reasons given by the Metropolitan Magistrate to reject the claim.

High Court while setting aside the order of the Additional Sessions Judge remanded the matter back to the ADJ for consideration. [BSR v. PSR, 2021 SCC OnLine Del 4789, decided on 21-10-2021]

Case BriefsHigh Courts

Madras High Court: The Division Bench of T. Raja and G. Chandrasekharan, JJ., while upholding the decision of Court below stated that for 12 long years the wife did not appear for any proceedings to disprove the allegations of husband and crucial allegations such as assaulting husband on his vital part of the body are included which were never denied by the wife, then how can the parties be made to live together.

Present appeal was directed against the decision of the Family Court dissolving the marriage between the parties.

Counsel for the appellant/wife argued that the trial court without taking into account the contents of various exhibits and contents of cross-examination of the respondent/husband gave a finding of guilt of cruelty meted out to respondent/husband that could not be sustained as the same was a result of erroneous appreciation of entire materials available before the Court below.

It was also submitted that the husband had fabricated certain documents to evade the payment of maintenance. Due to which the wife had to file a number of proceedings for which the appellant could not be demoralized giving a stamp of inflicting cruelty upon her husband.

Issues that arose in the present matter were as follows:

  • Whether the failure on the part of the appellant/wife to participate in the divorce proceedings before the Court below would amount to accepting the allegations made by the respondent/husband as true?
  • When the respondent/husband has filed the petition for divorce under Section 13(1)(ia) of the Hindu Marriage Act, on the refusal of the appellant/wife either to appear in the witness box to state her own case on oath or not offering herself to be cross examined by the other side, whether the Court below is legally justified in drawing an adverse presumption that the case set up by the appellant/wife is not correct, under Section 114-Illus.(g) of the Evidence Act?

High Court’s Analysis and Finding

Bench stated that since the wife had raised counter-allegations, it was her duty and obligation to appear before the Court below and substantiate the same by disproving the allegations made by the respondent/husband by seriously participating in the enquiry.

It was rightly submitted by the counsel for the husband that when the divorce petition was pending from 2007 till 2019, for almost a period of 12 long years appellant/wife had chosen to filed 13 interlocutory applications but it is not known why she did not choose to appear before the Court below to take part in the enquiry.

Secondly, when the wife filed a case against the respondent under Sections 498(A), 406, 323, 504 & 506 of IPC, for which a trial of 9 long years was held, after which the husband and his parents were acquitted, it is unknown why the appellant devoted time to project a false case but did not appear for the enquiry before the Court below to disprove the allegations made by the husband.

Thirdly, she had also filed a case of domestic violence and for maintenance.

High Court stated that when she had boycotted the proceedings before the Court below, where she had the advantage of examining and cross-examining the respondent, she could not have come to this Court.

Bench referred to Order VIII Rule 5(1) of the Code of Civil Procedure, as per which every allegation of fact in the plaint, if not denied specifically or by necessary implication, the same shall be taken to be admitted as against the person who failed to deny the same.

Conjoint reading of Order XVI, Rule 20, Order XV, Rule 4, Order XVI, Rule 20 and Order XXII, Rule 4 of CPC shows that where any party to a suit pending in Court refuses to give evidence or to produce any document then and there in his/her possession or avoid the Court willfully, the Court can pronounce judgment or make such order against that party on the ground that he or she failed to prove the case.

High Court referred to the Supreme Court decision in Mohinder Kaur v. Sant Paul Singh, (2019) 9 SCC 358, wherein it was held that a party to the suit who does not appear in the witness box to state his own case on oath and does not offer himself to be cross examined by the other side, would suffer a presumption, because the case set up by hi would not be genuine, natural or honest and real one.

12 Long Years and No Appearance

Further, in the present matter, Court’s opinion was that when the appellant/wife deliberately and willfully boycotted the proceedings before the Court below for 12 long years due to not having any evidence, she cannot approach this Court with this appeal since the same will not be maintainable.

A very crucial allegation made by the husband was that the wife had assaulted him on his vital part of the body and the same was not even denied by the wife in the counter affidavit.

In view of the above-said allegation and no denying of the same by the wife, it is clear that the wife not only caused mental cruelty but also physical cruelty upon the husband.

“…when the parties are all fighting for more than 14 long years, they cannot be made to live together.”

Unclean Hands

Family Court of Mumbai found that the appellant came to the Court with unclean hands since in the proceeding regarding maintenance she did not show that she was working and having a source of income.

The above order became final, this Court found no justification in this appeal.

High Court found no infirmity or error in the decision of the Family Court and hence upheld the same. [Narayanee v. S. Karthik,  2021 SCC OnLine Mad 2080, decided on 24-03-2021]


Advocates before the Court:

For Appellant: Dr K Santhakumari

For Respondent: J. Saravanavel

Case BriefsHigh Courts

Chhattisgarh High Court: Goutam Bhaduri, J. dismissed the petition as being devoid of merit.

The facts are such that the petitioner was accused of treating 1400 children of 6 villages by placing wire on teeth in order to get the advantage of the government scheme. The petitioner used the scheme of fixed orthodontic appliances over 281 children of different villages by providing treatment by wrongly applying fixed orthodontic appliances over 280 children of different villages. Consequent to this respondent no.4 i.e. Chhattisgarh State Dental Council in exercise of power under Section 41(1) of the Dentists Act, 1948 suspended the registration of the petitioner from 18.03.2021 to 18.03.2022. The instant petition was filed challenging the suspension order on grounds of stating that such order is without jurisdiction.

Counsel for the petitioners Mr Prafull Bharat submitted that order suspending the petitioner’s practice is not embodied in Section 41 of The Dentists Act, 1948 which speaks only about removal from register and such removal will not include the suspension. It was further submitted that the facts of the accusation was not ascertained and the treatment was done by following the due procedure as to be implemented by the State Government.

Counsel for the respondents Mr Gagan Tiwari submitted that Section 41 of The Dentist Act, 1948 states regarding the removal from register and the removal of registration in the instant case was made for a specific period. It was further submitted that the nature of allegations leveled against the petitioner was enquired and the petitioner was given an opportunity of hearing and thereafter the orders were passed. It was further submitted that the petitioner has a statutory remedy to file an appeal before the State Government.

The Court observed that a reading of sub-section (4) of Section 41 of Dentists Act, 1948 purports that if a person feels aggrieved by an order passed under sub section (1), he may file an appeal to the State Government.

The Court held “the petitioner if is aggrieved by the order can avail statutory remedy of filing an appeal before the State Government under sub-section (4) of Section 41 of the Act.”

In view of the above, petition was dismissed.[Manish Kumar Pandit v. State of Chhattisgarh, 2021 SCC OnLine Chh 908, decided on 07-04-2021]


Arunima Bose, Editorial Assistant has reported this brief.

Case BriefsHigh Courts

Calcutta High Court: A Division Bench of Arindam Sinha and Suvra Ghosh, JJ. confirmed a decree of divorce passed in favour of the husband by the trial court on grounds of cruelty by the wife. The instant appeal, dismissed by the High Court, was preferred by the wife against the judgment of the trial court.

Backdrop and Factual Matrix

The husband filed for divorce against the wife on grounds of cruelty, alleging that she made false allegations against him of having illicit relations with other women as well as their own daughter. The trial court found that no cogent proof of illicit relationship was forthcoming from the wife which could prove the allegations made by her against the husband. Therefore, the trial court held it amounted to cruelty against the husband under Section 13(i)(i-a) of the Hindu Marriage Act, 1955; and granted a decree of divorce in favour of the husband.

Contentions ─ Wife

The wife argued that the allegation of cruelty was erroneously held to be proved against her. She submitted that the persons named were not produced as witness. Extreme financial hardship had prevented her from fully participating at the trial, but that by itself did not justify finding in the trial court’s judgment and decree that the allegation of cruelty was proved against her.

Contentions ─ Husband

The husband submitted that the suit was filed in year 2004. Dilatory tactics were adopted by the wife. He gave evidence and was cross-examined, which could not shake his evidence. Such unshaken testimony was corroborated by their daughter. The daughter was married and living happily in her matrimonial home. Grave and serious allegations against him were made regarding carrying on with several women, including, their daughter. This part of the evidence was also corroborated by the daughter. The daughter took to the witness box and corroborated unshaken testimony of the husband, and therefore the wife did not cross-examine her, nor turn up to give evidence and be cross-examined. In such circumstances, further corroboration was not required and the Court below correctly appreciated the evidence to find cruelty inflicted on him.

It was further submitted that he had allowed the wife to stay in his flat and is regularly paying her enhanced permanent alimony. Eighteen years of separation had happened and there should not now be reversal of the trial court’s judgment and decree. He relied on the Supreme Court decision in Adhyaatmam Bhaamini v. Jagdish Ambala Shah, (1997) 9 SCC 471.

Law, Analysis and Decision

The High Court analysed the facts and allegations in two parts. Firstly, the allegations were regarding the wife having taken up a 9 am to 9 pm job, after which she became very ill. The husband, in his evidence, stated that he put pressure on the wife to leave the job. On the other hand, the wife said that the husband forced her to work on a sales office to earn money to meet family expenses. On examining the record, it appeared to the High Court that the wife took up the job, after which she fell ill, and the husband caused her to leave the job. Therefore, the wife’s account on this point was disbelieved by the Court.

Secondly, the allegation against the wife was that in July-August 2003, she visited the husband’s office, informing the Committee of Housing about him maintaining illicit relationship with their daughter. As a consequence, members of the Committee came to their residence. The wife admitted that on one occasion, she went to her husband’s office, but only to meet him. She did not meet allegations regarding her approaching the Committee members.

The allegations of the husband against the wife, were corroborated by their daughter in her evidence-in-chief. Although some statements in her affidavit were hearsay. The Court opined that:

There are some statements in her affidavit-in-chief, which are hearsay. The parts of her affidavit that can be attributed to be her evidence is in corroboration of what her father said in the petition, his affidavit-in-chief and from the Box, in cross-examination.”    

 On a complete analysis, the High Court held that the wife made reckless allegations against the husband, amounting to cruelty. The Court was convinced that there is no scope of interference in the trial court’s judgment and decree. The appeal was fount without any merit and was therefore dismissed. [Radha Majumder v. Arun Kumar Majumder, 2021 SCC OnLine Cal 1398, decided on 23-03-2021]


Advocates who appeared in this case:

Mr. Pradip Kumar Roy

Ms. Shraboni Sarkar … for appellant wife

Mr. Debabrata Acharyya

Mr. Sital Samanta … for respondent-husband

Case BriefsHigh Courts

Bombay High Court: The Division Bench of Ravindra V. Ghuge and B.U. Debadwar, JJ., upheld the decision of Additional Sessions Judge wherein a woman committed suicide along with her infant daughter within 7 years of marriage and allegations were placed that she committed suicide on the pretext of cruelty and harassment, but same could not be proved.

Present appeal was filed under Section 378(1) of the Code of Criminal Procedure, 1973 against the Judgment and Order passed by Additional Sessions Judge, whereby the five accused were acquitted for the offences under Sections 498-A, 304-B and 306 read with Section 34 of the Penal Code, 1860.

Factual Matrix

Respondent 2 and 3 are the husband and wife, whereas respondent 1 and 5 are the son and daughter of the said respondents 2 and 3.

Deceased ‘Jyoti’ was the daughter of Haribhau Laxman Karkhile and Shakuntala Haribhau Karkhile.

Further, it was stated that, with the intervention of close relatives of both the families, the marriage of deceased Jyoti with respondent 1 Vijay was settled.

At the time of settlement of marriage, respondents had expressed their desire that marriage should be solemnized in a grand manner. Respondents did not demand any gift or dowry. Haribhau and his family members agreed to the performance of marriage of deceased Jyoti and accused 1 Vijay at Kedgaon in the best of possible manner.

Matrimonial life of deceased Jyoti was normal for about 10 months after marriage. Thereafter, husband and father-in-law started insisting on her for bringing balance dowry amount of Rs 25,000 and subjecting her to cruelty for that, in the form of beating and starving her.

Deceased Jyoti used to disclose about harassment and ill-treatment meted out by husband and in-laws on account of remainder dowry amount of Rs 25,000 to her parents and brothers, whenever she visited her parental house.

In the meanwhile, Jyoti became pregnant and gave birth to a girl child but as afraid to return back to matrimonial house without the remainder of dowry. However, after some time she returned to her matrimonial house and assured her husband/accused that Haribhau would soon arrange the money and requested not to harass her.

Though Haribhau failed to arrange the money and deceased was constantly harassed and the same was disclosed to her parents.

Later, Jyoti and her daughter were both found dead by a fisherman in decomposed condition under the shrubs in the Ghod river.

Haribhau lodged report narrating over all conduct of the accused and the crime was registered for the offences punishable under Section 498-A, 304-B and 306 read with Section 34 IPC.

Additional Sessions Judge on conducting trial found that the prosecution failed to provide demand of dowry and harassment of Jyoti by the accused of non-fulfilment of remainder dowry amount. Being aggrieved of the same, State preferred the present appeal.

Crux of the matter lies in the following issues:

  1. Whether Jyoti committed suicide, along with tender aged daughter Kranti, by drowning into Ghod river;
  2. Whether, soon before the death, Jyoti was subjected to cruelty or harassment by the accused in connection with demand of dowry;

OR

(iii) Whether, by their willful conduct, accused had driven Jyoti to commit suicide along with daughter Kranti.

Bench on taking into consideration the evidence on record, gathered that Jyoti along with Kranti committed suicide by drowning in Ghod river, hence resulting in suicidal death.

Court ruled out the possibility of accused getting annoyed when Jyoti gave birth to a daughter and started harassing Jyoti more, on the contrary, in light of the evidence placed, it was found that they were happy.

PW5 Shakuntala did not tell any relative that accused were ill-treating Jyoti for insisting her to fulfil their demand of remainder dowry amount of Rs 25,000. This conduct of PW5 Shakuntala cannot be lost sight of. In the normal course, every mother shares such aspects with kith and kin or relatives.

Evidence of PW5 Shakuntala was not worthy of credence.

Further, High Court added that when Haribhau, Deepak, Shakuntala and Sudam were well aware about the fact that since more than one year accused were harassing Jyoti, on account of non-payment of remainder dowry of Rs 25,000, in normal course it was expected on their part to disclose the same to police immediately, however, they did not disclose anything about the aforesaid conduct of the accused.

During the course of recording the statement under Section 313 of CrPC, accused 1 not only stated that after birth of daughter Kranti he deposited Rs 50,000 in the Bank of Maharashtra, in the name of Kranti in fixed deposit account, but also produced on record xerox copy of the said fixed deposit receipt. The said conduct of the accused in taking care of future of Kranti, immediately after her birth, by way of depositing substantial amount in her name in bank, creates every doubt about the case set out in the FIR and deposed by PW2 Deepak, PW5 Shakuntala and PW7 Sudam that after the birth of Kranti gravity of harassment of Jyoti by accused increased.

High Court found the allegations of harassment of Jyoti by accused vague and omnibus.

In view of the facts and circumstances of the case, Bench found that Jyoti committed suicide within 7 years of marriage with accused 1 Vijay, accused cannot be held guilty, either for the offence punishable under Sections 498-A, 304-B or 306 read with Section 34 of IPC, as evidence on the aspect of subjecting her to cruelty by accused persons on account of remainder demand of dowry of Rs 25,000/- soon before her death or driving her to commit suicide by their willful conduct, is doubtful for various reasons.

Presumption contemplated in Section 113A or Section 113B of the Evidence Act would not support the prosecution, since Jyoti being subjected to cruelty on account of dowry demand was found to be doubtful.

The reason alone that Jyoti committed suicide, cannot be a ground to hold the accused guilty for offences punishable under Sections 498-A, 304-B or 306 read with Section 34 IPC on suspicion, when the evidence as to the demand of dowry and harassment of Jyoti by accused of the same, adduced by the prosecution was doubtful and not worthy of credence.

On re-appreciating the evidence, High Court did not find the view taken by the Additional Sessions Judge to be incorrect or improbable.

Hence the Bench concurred with the lower court’s view and dismissed the appeal. [State of Maharashtra v. Vijay Dattatraya Kolhe, 2021 SCC OnLine Bom 338, decided on 11-03-2021]


Advocates before the Court:

APP for Appellant – State: Shri R. V. Dasalkar

Advocate for Respondents No. 1, 2, 4 & 5 — Shri Amol Joshi

Case BriefsTribunals/Commissions/Regulatory Bodies

Securities Appellate Tribunal (SAT): A Coram of Tarun Agarwala, J., (Presiding Officer) and M.T. Joshi, J., (Judicial Member) while dismissing an appeal held that separate penalties by the stock exchanges could be imposed.

In the present matter, BSE and NSE separately imposed a penalty of Rs 12 lakh for violation of Regulation 17 and 19 of the Securities and Exchange Board of India (Listing Obligations and Disclosure Requirements) Regulations, 2015 (LODR Regulations), in two consecutive quarters. The stock exchanges suspended the trading activities of the appellant considering the non-payment of penalty amount.  The appellant contended that the default was made only in the first quarter. Further, contended that, separate penalties for the same offence cannot be imposed by the two stock exchanges separately.

The Coram resultantly found defaults in both consecutive quarters. While relying on the SEBI’s conscious decision in W.S. Industries (India) Limited v. BSE Ltd. (Appeal No. 8 of 2019 decided on 19.09.2019) held that, separate penalties by the stock exchanges could be imposed.[PVP Ventures Ltd. v. Bombay Stock Exchange Ltd., 2021 SCC OnLine SAT 90, decided on 17-03-2021]

Case BriefsSupreme Court

Supreme Court: The 3-judge bench of AM Khanwilkar, BR Gavai and Krishna Murari has held that the commercial wisdom of Committee of Creditors (CoC) is not to be interfered with, excepting the limited scope as provided under Sections 30 and 31 of the Insolvency and Bankruptcy Code, 2016 (IBC).

Taking note of various decision of the Supreme Court, the Court held that the legislative scheme is unambiguous. The legislature has consciously not provided any ground to challenge the “commercial wisdom” of the individual financial creditors or their collective decision before the Adjudicating Authority and that the decision of CoC’s ‘commercial wisdom’ is made non-justiciable.

“… the appeal is a creature of statute and that the statute has not invested jurisdiction and authority either with NCLT or NCLAT, to review the commercial decision exercised by CoC of approving the resolution plan or rejecting the same.”

deciding key economic question in the bankruptcy process, the only one correct forum for evaluating such possibilities, and making a decision was, a creditors committee, wherein all financial creditors have votes in proportion to the magnitude of debt that they hold.

It is not open to the Adjudicating Authority or Appellate Authority to reckon any other factor other than specified in Sections 30(2)or 61(3) of IBC.

The commercial wisdom of CoC has been given paramount status without any judicial intervention for ensuring completion of the stated processes within the timelines prescribed by the IBC. The opinion expressed by CoC after due deliberations in the meetings through voting, as per voting shares, is a collective business decision.

“… the Court ought to cede ground to the commercial wisdom of the creditors rather than assess the resolution plan on the basis of quantitative analysis.”

In an enquiry under Section 31, the limited enquiry that the Adjudicating Authority is permitted is, as to whether the resolution plan provides:

(i) the payment of insolvency resolution process costs in a specified manner in priority to the repayment of other debts of the corporate debtor,

(ii) the repayment of the debts of operational creditors in prescribed manner,

(iii) the management of the affairs of the corporate debtor,

(iv) the implementation and supervision of the resolution plan,

(v) the plan does not contravene any of the provisions of the law for the time being in force,

(vi) conforms to such other requirements as may be specified by the Board.

[Kalparaj Dharamshi v. Kotak Investment Advisors Ltd, 2021 SCC OnLine SC 204, decided on 10.03.2021]


*Judgment by: Justice BR Gavai

Appearances before the Court by:

For Kalparaj: Senior Advocates Mukul Rohatgi, Dr. Abhishek Manu Singhvi and Pinaki Mishra,

For Deutsche Bank and CoC: Senior Advocate K.V. Viswanathan

For Fourth Dimension Solutions Limited: Senior Advocates C.A. Sundaram, Gopal Sankar Narayanan and P.P. Chaudary,

For RP: Senior Advocates Shyam Divan

For KIAL: Senior Advocate: Senior Advocate Neeraj Kishan Kaul

Case BriefsSupreme Court

Supreme Court: The 3-judge bench of RF Nariman*, Navin Sinha and KM Joseph, JJ has held that an appeal under section 37(1)(c) of the Arbitration and Conciliation Act, 1996 would be maintainable against an order refusing to condone delay in filing an application under section 34 of the Arbitration Act, 1996 to set aside an award.

The Court was hearing an appeal arising out of a certificate issued under Article 133 read with Article 134A of the Constitution of India by the High Court of Delhi thereby giving rise to the question as to whether a learned single Judge’s order refusing to condone the Appellant’s delay in filing an application under section 34 of the Arbitration Act, 1996 is an appealable order under section 37(1)(c) of the said Act.

Interpreting Section 37(1)(c), the Court took note of the fact that the expression “setting aside or refusing to set aside an arbitral award” has to be read with the expression that follows – “under section 34”. Section 34 is not limited to grounds being made out under section 34(2).

As per section 34(1), an application made to set aside an award has to be in accordance with both sub-sections (2) and (3). Such application would not only have to be within the limitation period prescribed by sub-section (3), but would then have to set out grounds under sub-sections (2) and/or (2A) for setting aside such award. What follows from this is that the application itself must be within time, and if not within a period of three months, must be accompanied with an application for condonation of delay, provided it is within a further period of 30 days, this Court having made it clear that section 5 of the Limitation Act, 1963 does not apply and that any delay beyond 120 days cannot be condoned.

“Obviously, therefore, a literal reading of the provision would show that a refusal to set aside an arbitral award as delay has not been condoned under sub-section (3) of section 34 would certainly fall within section 37(1)(c). The aforesaid reasoning is strengthened by the fact that under section 37(2)(a), an appeal lies when a plea referred to in sub-section (2) or (3) of section 16 is accepted.”

The Court, hence, highlighted that the Legislature, when it wished to refer to part of a section, as opposed to the entire section, did so.

“Contrasted with the language of section 37(1)(c), where the expression “under section 34” refers to the entire section and not to section 34(2) only, the fact that an arbitral award can be refused to be set aside for refusal to condone delay under section 34(3) gets further strengthened.”

Further, so far as section 37(1)(a) is concerned, where a party is referred to arbitration under section 8, no appeal lies. This is for the reason that the effect of such order is that the parties must go to arbitration, it being left to the learned Arbitrator to decide preliminary points under section 16 of the Act, which then become the subject matter of appeal under section 37(2)(a) or the subject matter of grounds to set aside under section 34 an arbitral award ultimately made, depending upon whether the preliminary points are accepted or rejected by the arbitrator.

It is also important to note that an order refusing to refer parties to arbitration under section 8 may be made on a prima facie finding that no valid arbitration agreement exists, or on the ground that the original arbitration agreement, or a duly certified copy thereof is not annexed to the application under section 8.

“In either case, i.e. whether the preliminary ground for moving the court under section 8 is not made out either by not annexing the original arbitration agreement, or a duly certified copy, or on merits – the court finding that prima facie no valid agreement exists – an appeal lies under section 37(1)(a).”

Likewise, under section 37(2)(a), where a preliminary ground of the arbitrator not having the jurisdiction to continue with the proceedings is made out, an appeal lies under the said provision, as such determination is final in nature as it brings the arbitral proceedings to an end. However, if the converse is held by the learned arbitrator, then as the proceedings before the arbitrator are then to carry on, and the aforesaid decision on the preliminary ground is amenable to challenge under section 34 after the award is made, no appeal is provided.

The Court, hence, concluded,

“Undoubtedly, a limited right of appeal is given under section 37 of the Arbitration Act, 1996. But it is not the province or duty of this Court to further limit such right by excluding appeals which are in fact provided for, given the language of the provision as interpreted by us hereinabove.”

[Chintels India Ltd. v. Bhayana Builders Pvt. Ltd.,  2021 SCC OnLine SC 80, decided on 11.02.2021]


*Judgment by: Justice RF Nariman

Know Thy Judge| Justice Rohinton F. Nariman

Appearances before the Court by:

For Appellant: Advocate Rajshekhar Rao

For Respondent: Senior Advocate Mukul Rohatgi

Case BriefsSupreme Court

Supreme Court: After the Court noticed that, in a case, where the National Consumer Disputes Redressal Commission (NCDRC) had passed the reasoned order 8 months after the pronouncement of the operative order, the bench of Indu Malhotra and Ajay Rastogi, JJ has asked the President of the NCDRC into the matter, and take necessary steps so that this practice is discontinued, and the reasoned Judgment is passed alongwith the operative order.

The Court also observed that in all matters where reasons are yet to be delivered, it must be ensured that the same are made available to the litigating parties positively within a period of two months.

In the present case, the operative order was pronounced on 26.04.2019 and the the reasoned order was passed on 20.12.2019 by the NCDRC. The Supreme Court then directed the Registrar of the NCDRC to submit a Report stating the number of cases in which reasoned judgments had not been passed, even though the operative order had been pronounced in Court.

By the report dated 27.7.2020, the Court was informed that as on 20.12.2019, there were 85 such cases in which the operative order had been pronounced, but reasoned judgments were not delivered so far.

“The fact which has been brought to our notice by the Registrar of the Commission can, in no manner, be countenanced that between the date of operative portion of the order and the reasons are yet to be provided, or the hiatus period is much more than what has been observed to be   the   maximum time period for even pronouncement of reserved judgments.”

The Court noticed that the rights of the aggrieved parties are being prejudiced if the reasons are not available to them to avail of the legal remedy of approaching the Court where the reasons can be scrutinized.

“It indeed amounts to defeating the rights of the party aggrieved to challenge the impugned judgment on merits and even the succeeding party is unable to obtain the fruits of success of the litigation.”

[Sudipta Chakrobarty v. Ranaghta SD Hospital, 2021 SCC OnLine SC 107, order dated 15.02.2021]

Case BriefsTribunals/Commissions/Regulatory Bodies

Customs, Excise and Services Tax Appellate Tribunal (CESTAT): Ashok Jindal (Judicial Member) allowed an appeal against the impugned order wherein the refund claim filed by the appellant had been dismissed as time-barred.

The appellant had filed a refund claim for the period April-June, 2012. The said refund was entertained and was rejected on 30-10-2015. On appeal before the Commissioner (Appeals) the claim was allowed. Further, the appellant had made request for sanctioning of refund claim on 9-8-2016 but the Revenue had filed appeal against the order of sanctioning of refund claim on 22-3-2016 and this Tribunal dismissed of appeal filed by the Revenue. Thereafter, on persuasion by the department, the appellant had again filed application for sanctioning of refund claim on 13-2-2018 (who was forced to file). The said application was entertained, the refund claim was allowed on 9-04-2018 by the adjudicating authority. Thereafter, the Commissioner had reviewed the order of sanctioning the refund claim on 12-7-2018. The department had filed appeal before the Commissioner (Appeals) who held that the refund filed by the appellant was time-barred by limitation by order dated 28-11-2018, thus the instant appeal was filed.

The counsel for the appellant had submitted that as the Revenue continued to contest the issue before this Tribunal and this Tribunal had passed final order dated 11-3-2019 and he also submitted that they had filed refund claim initially on 29-6-2012 within the period of limitation and further after the order of this Tribunal, suo-moto the department was required to sanction the refund claim to the appellant but on the persuasion of the department, the appellant was forced to file refund claim again which was also within one year of the order of this Tribunal.

The Tribunal allowed the appeal and observed that it was fact on record that initially the refund claim was filed on 29-6-2012, the same was allowed by the Commissioner (Appeals) on 21-3-2016, instead of sanctioning the refund claim, the revenue preferred to file appeal before this Tribunal and this Tribunal had dismissed the appeal of the Revenue. The Tribunal held that it was the duty of the Revenue that after the order of this Tribunal, they were required to refund sou moto within 3 months from 1-3-2017 but instead of doing so, the appellant was forced to file refund claim again which was filed on 13-2-2018. The departmental officer did not stop there; they reviewed the order of the adjudicating authority sanctioning the refund and held that the refund claim was barred by limitation without any basis to drag the appellant in unnecessary litigation. The said act of the department cannot be appreciated.[AMP Capital Advisors (India) (P) Ltd. v. Commr. Of CGST, Appeal No.ST/60296 of 2019-ST, decided on 13-01-2021]


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Case BriefsHigh Courts

Chhattisgarh High Court: A Division Bench of P.R. Ramchandra Menon and Parth Prateem Sahu JJ., dismissed the appeal being devoid of merits.

The facts of the case are such that one Rajendra Sharma was employed as Driver in the truck owned by non-applicant 1 and insured by non-applicant 2 who while driving from Bilaspur to Raigarh carrying dolomite was attacked and assaulted by some unknown persons with the intention to cause robbery and thereby eventually succumbed to death. FIR was lodged and an application under Section 10 of the Employees Compensation Act 1923 was filed before the Commissioner seeking compensation by the wife and children of the deceased which was thereby granted on grounds that the death happened during the course of employment and fastened the liability to pay on the employer.  Assailing the said order, employer appellant filed an appeal before High Court on grounds that the penalty was imposed without issuing show-cause notice and without affording opportunity of hearing to the employer as envisaged under Section 4A (3) (b) of the Employees’ Compensation Act 1923 wherein appeal was allowed and impugned order was set aside in part relating to the amount of penalty and remitted the matter back to pass award afresh after affording reasonable opportunity of hearing to the employer. The Commissioner had fresh proceedings and issued notice to the parties and awarded 50% of the awarded amount of compensation as penalty and held the employer liable to pay amount of penalty.

Counsel for the appellants-employer submitted that there was again non-compliance of the provisions of Section 4A (3) (b) of Employees Compensation Act 1923. He contended that unless and until there is specific notice in this regard, as directed in MA No.148/2003, the impugned order awarding penalty to the extent of 50% and fastening liability upon appellant is bad in law and liable to be set aside.

Counsel for the respondents submitted that the Commissioner after receipt of the case back on remand, drawn fresh proceeding, granted opportunity of hearing and producing evidence, but appellant employer failed to produce any evidence on the issue. He submitted that the Commissioner is well within four corners of law in awarding penalty of 50% as provided under Section 4A (3) (b) of the Employees’ Compensation Act 1923.

The Court observed that the only ground relevant to the facts is that whether without issuance of notice the entire proceeding drawn by the Commissioner would be considered vitiated or not. The Court further observed that the Appellant was well aware of the fact that the case has been remanded back to the Commissioner with a specific direction for appearance of the parties before the Commissioner and to decide the issue of penalty afresh. It was further observed that the issuance of notice as provided under Section 4A (3) (b) of the Act of 1923 to be mandatory is only to bring it to the knowledge of the employer that the penalty is to be imposed, so that the employer may submit explanation and evidence for the delay occurred in depositing amount of compensation and satisfy the Commissioner on the said issue.

The Court thus held that “In the case at hand, earlier appeal was filed by appellant challenging the order of award of penalty by the Commissioner on the ground of non-issuance of show-cause notice as envisaged under Section 4A(3)(b) of the Act of 1923, which was allowed and the case was remitted back to the Commissioner. Appellant was well aware as to why the case has been remanded back to the Commissioner and also about the proceeding drawn by the Commissioner, but even then appellant has not submitted any explanation nor produced any evidence in this regard. When once the case is remitted back to the Commissioner for limited purpose of considering award of penalty; the appellant appeared before the Commissioner and participated in the proceeding but failed to submit any explanation or bring on record any evidence on issue, then he cannot be permitted to again raise the same ground that specific notice in terms of Section 4A (3) (b) of the Act of 1923 has not been issued.”

 The Court thus dismissed the appeal as the appeal did not involve any question of law which is a prerequisite for entertaining appeal under Section 30 of Employees’ Compensation Act 1923.[Ramjilal Jagannath Partnership Firm v. Kusumdevi, 2020 SCC OnLine Chh 2051, decided on 17-11-2020]


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Case BriefsDistrict Court

State Consumer Dispute Redressal Commission, Odisha (SCDRC): Dr D.P. Choudhury (President) modified the compensation amount awarded to a Law Student in light of being subjected to ‘Deficiency of Service’ and ‘Unfair Trade by ‘Amazon’.

The instant appeal was filed under Section 15 of the erstwhile Consumer Protection Act, 1986.

Factual Matrix

While the appellant was in his first year of law school, the OP had floated an offer for sale of a Laptop without Laptop Bag for Rs 190 against the price of Rs 23,499.

OP had confirmed for placing of the order and two hours after receiving the confirmation, the appellant received a phone call from the OP’s Customer Care Service Department stating that the subject order stood cancelled due to the price recession issue.

Since the complainant was in need of a laptop to prepare his project, he raised an objection for such cancellation.

On not receiving any response from the OP, complainant issued a legal notice.

Deficiency in Service

Appellant had to purchase another laptop but suffered from mental agony for such cancellation, hence filed a complaint alleging the deficiency in service and unfair trade practice.

Complainant claimed compensation of Rs 50,000 and Rs. 10,000 towards litigation cost.

District Forum had allowed the complaint partly by directing the OP to pay compensation of Rs 10,000 for mental agony and to pay Rs 2,000 towards the cost of litigation.

Hence, the aforesaid impugned order was challenged by the complainant/appellant stating that the District Forum committed error in law by not deciding to direct to pay Rs 50,000 as compensation.

Analysis, Decision and Law

Bench observed that “When there is an advertisement made for offer placed by the OP and made the offer as per the material available on record and complainant placed the order and same got confirmed, the agreement is complete.”

Another aspect to be noted was that, when the OP had allowed Rockery Marketing at his platform as per written version, the responsibility of the OP could not be lost sight of.

Since there was a breach of contract by OP, OP is held to be liable to pay the damages.

Commission agreed with District Forum’s observation that OP not only negligent in providing service but was also involved in unfair trade practice.

Taking all the factors discussed above for consideration, Bench concluded that compensation awarded should be of Rs 30,000 for unfair trade practice and punitive damages of Rs 10,000. Further, with regard to the cost of litigation Rs 5000 needs to be awarded.

On failing to make the above payments to the complainant within 30 days, the said amounts will carry interest at the rate of 12% per annum.

In view of the above, the appeal was disposed of. [Supriyo Ranjan Mahapatra v. Amazon Development Centre India (P) Ltd., First Appeal No. 492 of 2018, decided on 11-01-2021]


Read More:

District Consumer Forum directs ‘Amazon’ to pay compensation for “deficiency in services”

Case BriefsTribunals/Commissions/Regulatory Bodies

Customs, Excise and Services Tax Appellate Tribunal (CESTAT): The Coram of Ramesh Nair (Judicial Member) and Raju (Technical Member) allowed an appeal which was filed against in demand of reversal Cenvat Credit, Interest, and Imposition of penalty.

The issue involved in appeal was that whether Rule 6 (3) (b) and Rule 6 (3)(i)(ii) of Cenvat Credit Rules,2004 would be applicable to the removal of byproducts (i.e spent sulphuric Acid) which were removed under serial No 32 of Notification No. 04/2006 –CE dated 1st March 2006 to fertilizer manufacturing units following the procedure laid down under Central Excise (Removal of Goods at Concessional Rate of Duty for Manufacture of Excisable Goods)Rule 2001. Notices were issued for recovery of CENVAT under Rule 6(3)(b) and Rule 6(3)(i)(ii) of Cenvat Credit Rules,2004 by treating the removal of Spent Sulphuric Acid under Notification No.04/2006-CE dated 1st March,2006 as exempted goods. The Adjudicating Authority had not accepted the contention of the Appellant that the by-Products were removed at Nil rate of duty on receipt of Annexure-1 from fertilizer manufacturing units.

The Tribunal allowed the appeal and observed that the appellant were engaged in manufacture of Chemicals namely Dichloro Nitro Benzene, etc. and were availing Cenvat Credit in respect of certain inputs and inputs services during the process of manufacture Sulphuric Acid also came into existence. They further observed that appellants were clearing such Sulphuric acid to manufacturers of fertilizers by availing benefit of Procedure Chapter X (Cleared at Nil Rate of Duty). The appellants had contended that they procured Sulphuric Acid from outside and used the same in the process of manufacturing their final products. What is left after the process was nothing but the spent sulphuric acid which was waste/refuse. They claimed that the spent sulphuric acid was not a by-product. The appellant had claimed that spent sulphuric acid was the residue of the input sulphuric acid procured from outside and used in the processing within the factory. The appellant claimed that they had cleared only such Sulphuric Acid under Notification No. 4/2006 – CE. The Tribunal found that a similar issue was decided upon in the case of Nirma Limited – 2012(276) ELT 283.[Panoli Intermediate (India) (P) Ltd. v. C.C.E. & S.T., 2021 SCC OnLine CESTAT 5 , decided on 18-01-2021]


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Case BriefsHigh Courts

Karnataka High Court: John Michael Cunha J., allowed the appeal and set aside the impugned judgment.

The case involves default under Section 138 Negotiable Instruments Act, 1881 wherein after the complaint was made summons were issued to the respondent. The complainant examined himself and produced 8 documents pertaining to his claim as evidence. However, during the trial accused remained continuously absent. Hence the Trial Court dismissed the complaint stating that further cross-examination of PW1 was taken as “not tendered for further cross-examination”. When the complainant failed to tender himself for cross-examination, the only course open for the court was to eschew the entire evidence from record and as a result no evidence would have been available before the Trial Court to render a finding on merits of the case, But unfortunately the Trial Court proceeded to discuss the matter on merits and held that the complainant has failed to prove the existence of the debt or other liability and hence acquitted the accused. Aggrieved by the same, present appeal was filed.

Counsel for the complainant submitted that such procedure is legally untenable and cannot be approved.

The Court observed that when no legal evidence was available on record, the Trial Court could have passed an order on merits and rejected the claim of the complainant. It was further observed that the order sheet clearly indicates that not only the accused but also the complainant remained continuously absent.

Thus, the Court held that the trial Court ought to have dismissed the complaint about non-prosecution under Section 256 of the Criminal Procedure Code and not on merits. It further held that complainant is equally responsible for keeping the matter pending for more than 4 years from 2016 onwards.

In view of the above, the appeal was allowed and the impugned order was set aside. [Karage Gowda v. S. Nagaraj, 2020 SCC OnLine Kar 2012, decided on 11-12-2020]


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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]


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Case BriefsHigh Courts

Chhattisgarh High Court: Parth Prateem Sahu J., set aside the impugned award and allowed the appeal by applying the doctrine of preponderance of probabilities.

On 25-01-2010, at about 7.30 AM, when Ghanshyam Baghel was going to his house, on the way, near turn towards Sunder Dera, one Pickup Bolero Jeep (hereinafter referred to as ‘offending vehicle’) driven by non-applicant 1 rashly and negligently dashed Ghanshyam Baghel and caused accident who suffered grievous injuries and succumbed to them. The accident was reported to concerned Police Station, and FIR was registered against non applicant 1. After completion of investigation, chargesheet was submitted before Court of Judicial Magistrate First Class. Claimants who are widow and mother of deceased filed an application under Section 166 of the Motor Vehicle Act i.e. M.V. Act before learned Claims Tribunal seeking compensation. The Claims Tribunal held that claimants failed to prove motor accidental injuries suffered by deceased Ghanshyam Baghel on account of rash and negligent driving of offending vehicle by non-applicant 1; there was no breach of policy conditions and dismissed the claim application by impugned order.

Counsel for the appellants submitted that Claims Tribunal erred in dismissing the claim only on the basis of contents of First Information Report and not considering the entire documents and evidence placed on record. It was further contended that case requires reconsideration prayed for remand of the case.

Counsel for the respondents submitted that the Claims Tribunal has rightly taken into consideration the contents of First Information Report, which has been lodged immediately after the accident wherein it is specifically mentioned that deceased while carrying bag of seeds fell down on road and suffered injuries. He supported the impugned award and submits that there is no merit in appeal and the same is liable to be dismissed.

The Court observed that Claims Tribunal has not taken into consideration the entire material available on record and nature of proof, which is required to be brought by the claimants before Claims Tribunal to prove their case in the proceeding under Section 166 of the M.V. Act. The claim cases are required to be decided on the basis of preponderance of probabilities.

The doctrine of preponderance of probabilities was discussed in the judgment titled Postgraduate Institute of Medical Education and Research v. Jaspal Singh, (2009) 7 SCC 330 which held as under:

“17. In Syad Akbar v. State of Karnataka (1980) 1 SCC 30 this Court dealt with in details the distinction between negligence in civil law and in criminal law. It has been held that there is a marked difference as to the effect of evidence, namely, the proof, in civil and criminal proceedings. In civil proceedings, a mere preponderance of probability is sufficient, and the defendant is not necessarily entitled to the benefit of every reasonable doubt; but in criminal proceedings, the persuasion of guilt must amount to such a moral certainty as convinces the mind of the court, as a reasonable man, beyond all reasonable doubt.”

  In Bimla Devi v. Himachal RTC, (2009) 13 SCC 530

“It was necessary to be borne in mind that strict proof of an accident caused by a particular bus in a particular manner may not be possible to be done by the claimants. The claimants were merely to establish their case on the touchstone of preponderance of probability. The standard of proof beyond reasonable doubt could not have been applied.”

 The Supreme Court judgment N.K.V. Bros. (P) Ltd. v. M. Karumai Ammal, (1980) 3 SCC 457 held

“3. Road accidents are one of the top killers in our country, specially when truck and bus drivers operate nocturnally. This proverbial recklessness often persuades the courts, as has been observed by us earlier in other cases, to draw an initial presumption in several cases based on the doctrine of res ipsa loquitur. Accidents Tribunals must take special care to see that innocent victims do not suffer and drivers and owners do not escape liability merely because of some doubt here or some obscurity there. Save in plain cases, culpability must be inferred from the circumstances where it is fairly reasonable. The court should not succumb to niceties, technicalities and mystic maybes. We are emphasising this aspect because we are often distressed by transport operators getting away with it thanks to judicial laxity, despite the fact that they do not exercise sufficient disciplinary control over the drivers in the matter of careful driving. The heavy economic impact of culpable driving of public transport must bring owner and driver to their responsibility to their ‘neighbour’……………”

The Court thus held that Claims Tribunal has not conducted an enquiry as provided under Section 168 of the M.V. Act and Rule 226 of the Chhattisgarh Motor Vehicle Rules, 1994. Taking into consideration the entire material available on record as well as looking to the object of M.V. Act and the provisions made thereunder, Claims Tribunal failed to appreciate the evidence. Hence Claims Tribunal erred in dismissing the entire claim application based on one of the documents i.e. contents of First Information Report.

In view of the above, impugned order was set aside and matter remitted back to the Claims Tribunal for reconsideration.[Shanti Bai v. Daneshwar Singh, 2020 SCC OnLine Chh 604, decided on 03-11-2020]


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Customs, Excise and Services Tax Appellate Tribunal (CESTAT): Anil Choudhary (Judicial Member), allowed an appeal which was filed aggrieved by the judgment and order of Commissioner (Appeals).

The appellant was engaged in the manufacture of MCBs (Miniature Circuit Breaker) and various other electrical accessories, which were dutiable falling under CETH 85362030. The appellant was availing SSI exemption in respect of goods manufactured on their own account or brand and at the same time, was paying duty on the goods bearing brand name of other persons. The other appellant was buyer of goods. On the basis of intelligence that the appellant has been indulging in evasion of duty, a search was conducted where certain documents were resumed. Statements of about 16 persons were recorded, which had been relied upon in the show cause notice. On the basis of scrutiny of the documents and statements of various persons, the Revenue concluded that duty was worked out including cess at Rs 1,22,00,622, invoking the extended period of limitation with a proposal to appropriate Rs.50 lakhs deposited during the investigation stage. Further, penalty was also proposed.

Initially, the appellant had approached the Settlement Commission, admitting duty liability of Rs 6,47,685. Before the Settlement Commission, the Department itself had revised the duty demand to Rs 49,50,711. However, the Settlement Commission recorded the finding that the evidence before it was not sufficient to come to any logical conclusion and sent the case to the Adjudicating Authority. The Adjudicating Authority further, on contest, confirmed a reduced demand of Rs 34,94,797, which was further reduced by the Commissioner (Appeals) to Rs 34,06,203, recording calculation errors. The Adjudicating Authority also imposed penalty of Rs 34,94,797 under Section 11 AC of the ACT read with Rule 25. Being aggrieved, the appellant again preferred appeal before the Commissioner (Appeals) who recorded the finding that the appellant have by and large accepted that they have been indulged in duty evasion but have raised certain issues – the calculation of turnover and duty evaded. They had mainly disputed the estimation of quantity. Commissioner (Appeals) re-calculated and aggrieved by which the instant appeal was filed. The counsel for the appellant, Mr Rajesh Chhibber urged that the Commissioner (Appeals) have erred in observing and reconciling the figures. Further, the rejection of the grounds of the appellant by the Commissioner (Appeals) particularly estimation of turn over by Revenue beyond the installed capacity was bad. Further, the learned Commissioner in spite of taking notice of a wide guess work down by the department has erred in not setting aside the duty demand along with a penalty for the alleged clandestine removal. It was further urged that in spite of allegation of the department of having cleared huge quantity and value of finished goods not a single consignment was intercepted outside the factory being transported without proper document either of raw materials or finished goods.

The Tribunal observed that it was evident on the face of the record that the show cause notice was issued by way of wide guess work wherein duty demand of Rs 1.22 crores was made approximately. Further, they found that Revenue had not worked out the source of raw material for manufacture of the huge quantity alleged to be clandestinely cleared, nor flow back of the proceeds of the alleged clandestine removal. Further, no adverse quantitative ratio has been found out nor any adverse ratio with respect to consumption of electricity was found. Admittedly, the total electricity bill for the two months in dispute is about Rs 20,100 or Rs 10,000 per month approximately. With such meagre consumption of power and taking in view the installed capacity, as well as the idle time due to power failure or break down of machine from time to time, the estimated production and confirming of duty by Revenue is found to be erroneous and high pitched.

The Tribunal allowing the appeal held that penalty under Section 11AC read with Rule 25 of Central Excise Rules should be set aside as case of Revenue was not proved.[Prakash Switchgear v. CCE, 2020 SCC OnLine CESTAT 321, decided on 12-11-2020]


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