Karnataka High Court
Case BriefsHigh Courts

Karnataka High Court: HP Sandesh J. dismissed the petition and upheld the judgment by the Appellate Court and further directed the complainant to file necessary application to condone the delay.

The factual matrix of the case of the respondent/complainant is that the complainant was running an industry in the name of M/s. Nandini Modulars. The accused gave an undertaking to the complainant that he will discharge the amount of Rs.13, 58,921/- within 15 days and also issued four cheques as security to the said loan amount in favour of the complainant which when presented in bank were dishonoured due to ‘funds insufficient’. Hence, various legal notices were issued from time to time to make payment, but the accused did not comply with the notices. Hence, a complaint was filed wherein the Trial Court after considering both the oral and documentary evidence, convicted the petitioners. Aggrieved by which, an appeal was preferred before the Appellate Court and a contention was raised regarding the complaint being barred by limitation and no application was filed before the Trial Court and thus the very initiation of the proceeding against the petitioners is erroneous and an error has been committed in convicting the petitioners. The Appellate Court dismissed in view of the delay and remanded the matter to consider the same afresh by giving an opportunity to the complainant to file necessary application for condonation of delay and directed the Trial Court to decide the application first and thereafter proceed with the matter as per and consequently, set aside the order of conviction and sentence passed by the Trial Court. Hence, the present revision petition was filed before this Court.

Counsel for petitioner Mr. Chethan AC submitted that the order passed by the Appellate Court in setting aside the judgment of the Trial Court and remanding the matter to consider afresh giving an opportunity to file an application for condonation of delay is not permissible under law and hence, it requires interference of this Court and set aside the order of remand and direct the Appellate Court to consider the matter on merits with regard to the conviction and sentence order passed for the offence punishable under Section 138 of Negotiable Instruments Act i.e. N.I. Act by the Trial Court.

Counsel for respondent Mr. Ramesh P Kulkarni submitted that no application is filed before the Trial Court for condonation of delay and the Trial Court after confirming the same on perusal of the entire order sheet gave an opportunity since for the first time, the question of delay is raised in the Appellate Court. Hence, the Appellate Court has not committed any error in setting aside the judgment of conviction and sentence and remitting the matter for fresh consideration and in giving an opportunity to file the application.

The Court observed that admittedly no application was filed before the Trial Court along with the complaint for condonation of delay. The material discloses that there is a delay of seven days in filling the complaint. It is not in dispute that the proviso is made in N.I. Act under Section 142(b) to condone the delay, if any, in filing the complaint. On perusal of the order of the Appellate Court, it is clear that an application is filed before the Appellate Court and also it is not in dispute that the delay aspect has been raised for the first time before the Appellate Court and no such defence was taken before the Trial Court. If delay is noticed, the Trial Court can even call upon the complainant to file an application for condonation of delay.

The Court remarked that an amendment is brought in the year 2003 to Section 142 and clause (b) was inserted keeping in mind the reasons and objects of the Act and to obviate the complainant of the hardship. The Court has to take note of the wisdom of the legislature in bringing such an amendment and when the issue is raised for the first time in the appeal, the Court has to take note of all these factors into consideration. When the issue of limitation was raised before the Appellate Court, immediately the complainant filed an application before the Appellate Court for condonation of delay and the Appellate Court concluded that the delay cannot be considered in Appellate Court usurping the powers of the Trial Court and the same has to be dealt with by the Trial Court and the same is in accordance with the judgment of the Appellate Court.

The Court has to take note of the very proviso of Section 142(b) of the N.I. Act which confers jurisdiction upon the Court to condone the delay i.e. original Court or otherwise the very purpose and wisdom of the parliament would be defeated. The issue of limitation for the first time is raised before the Appellate Court and the Court exercising the discretion to condone the delay did not arise at all before the Trial Court.

The Court thus held “I am of the opinion that the Appellate Court has not committed any error in setting aside the judgment and directing the complainant to file necessary application to condone the delay and the Trial Court by giving an opportunity to the petitioners to consider the said application.”

[A Seating v. Nandini Modulars, 2022 SCC OnLine Kar 725, decided on 08-04-2022]

Arunima Bose, Editorial Assistant has reported this brief.

Case BriefsSupreme Court

Supreme Court:  Reminding the Courts of the importance of hierarchy of Courts, the bench of Sanjay Kishan Kaul and MM Sundresh*, JJ has held that the Appellate Court shall not expect the trial court to act in a particular way depending upon the sensitivity of the case. Rather it should be appreciated if a trial court decides a case on its own merit despite its sensitivity.

“Every case has its own journey towards the truth and it is the Court’s role undertake. Truth has to be found on the basis of evidence available before it. There is no room for subjectivity nor the nature of offence affects its performance.”

Factual Background

In the present case, it was alleged that both the accused carried three weapons, waylaid the deceased at a signal in a main road at about 5 p.m. and after the initial attack, dragged him to the pavement, and thereafter inflicted multiple injuries.

PW-1, who saw the occurrence from a fair distance, was known to the deceased and the deceased, who had his intestine coming out, told him the story implicating the accused.

The Deceased was taken to a hospital run by PW-25, a doctor very well known to PW-1. This hospital which was about two kilometres from the place of occurrence, while another nursing home was in existence at about 50 meters.

PW-25 gave treatment to the deceased at about 5.05 p.m. He died of multiple injuries caused by haemorrhage at about 5.45 p.m. About 40 days thereafter, at the request of the police, PW-25 gave another certificate introducing adequate material to indicate that there was a dying declaration.

Before the trial court, the prosecution examined as many as 28 witnesses. Most of the witnesses pertaining to conspiracy, occurrence, recovery and extraordinary judicial confession turned hostile.

On behalf of the defence, a doctor was examined to show that considering the nature of the injuries suffered, the death must have been instantaneous.

The Court of Sessions without exception, threadbare considered all the materials including the witnesses who turned hostile. After due scrutiny, benefit of doubt was extended in favour of the appellants.

The Karnataka High Court, however, did not consider the entire evidence as discussed by the trial court and the judgment of the trial court was reversed and conviction was rendered sentencing the appellants for life.

Duty of appellate Courts

It is pertinent to note that Section 378 CrPC enables the State to prefer an appeal against an order of acquittal. Section 384 CrPC speaks of the powers that can be exercised by the Appellate Court. When the trial court renders its decision by acquitting the accused, presumption of innocence gathers strength before the Appellate Court. As a consequence, the onus on the prosecution becomes more burdensome as there is a double presumption of innocence.

However, at times, courts do have their constraints. Sometimes different decisions are being made by different courts, namely, trial court on the one hand and the Appellate Courts on the other.

Certainly, the court of first instance has its own advantages in delivering its verdict, which is to see the witnesses in person while they depose. However, the Appellate Court is expected to involve itself in a deeper, studied scrutiny of not only the evidence before it, but is duty bound to satisfy itself whether the decision of the trial court is both possible and plausible view. When two views are possible, the one taken by the trial court in a case of acquittal is to be followed on the touchstone of liberty along with the advantage of having seen the witnesses. The Appellate Court shall remind itself of the role required to play, while dealing with a case of an acquittal.

“The district judiciary is expected to be the foundational court, and therefore, should have the freedom of mind to decide a case on its own merit or else it might become a stereotyped one rendering conviction on a moral platform.”

Hence, indictment and condemnation over a decision rendered, on considering all the materials placed before it, should be avoided. The Appellate Court is expected to maintain a degree of caution before making any remark.


The Supreme Court found it unnecessary on the part of the High Court to make strong comments on the judgment written by the trial court.

It noticed that,

  • The trial court took enormous pains in considering the evidence of all the witnesses one by one and gave exhaustive reasoning for its ultimate conclusion.
  • The dying declaration was put forth by the prosecution through the mouth of PWs 1, 2 and 25. When the evidence let in by them was found to not be trustworthy, there cannot be any dying declaration either in fact or in law.

The evidence of PW-25 had no existence of dying declaration in it. He had deposed that he did not remember whether the deceased told him that the accused attacked him and caused injuries. He later testified that he had given put forth the dying declaration due to the persistence of the police.

“It rendered a conviction on mere surmise, even though an inference can never be the basis of a conviction when the testimony of a witness is not believed on cogent reasoning.”

  • The alleged occurrence was said to have happened at about 5 p.m. on a busy road with heavy traffic and even the evidence of PW-1 and PW2 suggests that there were about 1000 persons.
  • The defence also examined a Government doctor, an expert in the field of surgery, who had clearly deposed that it would be impossible for the deceased to be conscious after suffering injuries such as intestines coming out.

The Court wondered how the various reasons given by the trial court were found unacceptable by the High Court especially when it did not consider the evidence of the other witnesses.

It was, hence, held that the High Court did not undertake the exercise as mandated under Section 378 read with Section 384 CrPC in reversing the reasoned decision rendered by the trial court. Consequently, the orders of conviction passed by the High Court was set aside.

[Mohan v. State of Karnataka, 2021 SCC OnLine SC 1233, decided on 13.12.2021]

*Judgment by: Justice MM Sundresh

Canada SC
Case BriefsForeign Courts

Supreme Court of Canada: The Bench comprising of Wagner C.J. and Moldaver, Côté, Brown, Rowe, Martin and Kasirer JJ., held that appellate courts cannot always limit the scope of a new trial to a particular theory of liability on a single criminal charge. While setting aside the order of the Appellate Court wherein it had curtailed the scope of re-trial to a specific point, the Bench remarked,

“Put simply, the ancillary order gave rise to a partial acquittal on a single criminal charge — a two-headed hydra-like creation unknown to Canada’s criminal law.”

The instant case dealt with robbery committed by two individuals in a Subway restaurant. One C was arrested in relation to the robbery; although he denied involvement in the robbery but admitted that he had told a group of individuals, including his friends T and L, how to do a robbery what to say how to do it how long to be in there. C was subsequently charged with armed robbery and tried by a judge alone.

Findings of the Courts below

At trial, the Crown advanced two alternative theories of liability: that C was the masked robber and guilty as a principal offender, or that C was guilty as a party to the armed robbery in that he either abetted the commission of the offence, or counselled its commission. The trial judge rejected both theories of liability and acquitted C, holding that the evidence fell short of proving that C was one of the principal offenders. Regarding party liability, the Trial Court found that C could only be convicted as a party if the Crown established that C’s friends T and L had committed the robbery, but the evidence also fell short in that regard.

In appeal, the Appellate Court opined that the Trial Court erred in holding that it was incumbent on the Crown to prove that T and L were the persons who committed the robbery in order to find C guilty. Holding that the Trial Court had failed to recognize that the evidence before him was reasonably capable of establishing that C committed the prohibited act with the requisite intent for party liability on the basis of abetting or counselling, the Appellate Court set aside C’s acquittal and ordered a new trial. However, in doing so, it ordered that the new trial be limited to the question of “whether C is guilty of robbery, as a party, on the basis of abetting or counselling”.

Whether the Appellate Court erred in restricting the scope of the new trial?

Where an appellate court allows an appeal and sets aside an acquittal, it has the power, under s. 686(4)(b)(i) of the Criminal Code, to order a new trial and to make any order, in addition, that justice requires under s. 686(8). However, three conditions must be met for s. 686(8) to apply.

  1. First, the appellate court must have exercised one of the triggering powers conferred under s. 686(2), (4), (6) or (7).
  2. Second, the order issued must be ancillary to the triggering power in that it cannot be at direct variance with the court’s underlying judgment.
  3. Third, the order must be one that justice requires.

Opining that the second and third conditions were not met in the instant case, as the ancillary order limiting the scope of the new trial was at variance with the underlying judgment and was not an order that justice required, the Bench held that the new trial must be on all available modes of committing the offence.

“To prospectively deny a trier of fact the ability to consider a viable theory of liability would be to undermine their ability to carry out their core function: to determine whether the Crown has proven that the accused committed the offence(s) charged.”

The Bench stated, as one of the purposes of the criminal process is to foster a search for truth, justice cannot require that a trier of fact be restricted in their ability to determine how, if at all, an accused participated in a given offence. Hence, the Bench opined that upholding the Court of Appeal’s ancillary order would mean that if, at the new trial, the defence adduced evidence showing that Mr. Cowan did not abet or counsel anyone because he was, in fact, the principal offender, and the trier of fact believed that evidence or it raised a reasonable doubt, the trier of fact would have no option but to acquit Mr. Cowan of the charge of armed robbery and, such a result would make a mockery of the justice system and cannot be what justice requires.

However, while holding that the Court of Appeal was not permitted to restrict the available theories of liability at the new trial, the Bench clarified that it should not be taken to mean that appellate courts do not have the power to limit the scope of a new trial in all circumstances.

Observation and Analysis

For the purposes of determining criminal liability, the Criminal Code does not distinguish between principal offenders and parties to an offence. Hence, where an accused is being tried alone and there is evidence that more than one person participated in the commission of the offence, the Crown is not required to prove the identity of the other participant(s) or the precise part played by each in order to prove an accused’s guilt as a party offence.

Therefore, the Bench held that the Crown was only required to prove that any one of the individuals encouraged by Mr. Cowan went on to participate in the offence either as a principal offender — in which case Mr. Cowan would be guilty as both an abettor and a counsellor — or as a party — in which case Mr. Cowan would be guilty as a counsellor.

Issue Estoppel

Rejecting the accused’s argument that the Court could not order a full new trial because the doctrine of issue estoppel prevents the re-litigation of the Crown’s theory that he was guilty of armed robbery as a principal offender point, the Bench opined that issue estoppel does not apply simply by virtue of the fact that a trial has been held and that there is no final decision made in a prior proceeding where an appellate court finds that a verdict of acquittal on a single criminal charge was tainted by legal error and, accordingly, renders that verdict invalid as a whole by setting it aside and ordering a new trial on the relevant charge.

The Bench stated that in the instant case no issue could be said to have been finally decided in the first trial because the result of that trial, i.e. the acquittal on the single charge of armed robbery had been entirely set aside.


In the above backdrop, the judgment of the Appellate Court setting aside the acquittal on the charge of armed robbery and ordering a new trial was upheld, but the order limiting the scope of new trial was set aside and a full new trial on the armed robbery charge was ordered. [Jason William Cowan v. Queen, 2021 SCC OnLine Can SC 5, decided on 05-11-2021]

Kamini Sharma, Editorial Assistant has reported this brief.

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

Gujarat High Court: A.P. Thaker, J., allowed a petition which was filed aggrieved and feeling dissatisfied with the judgment and decree of the Appellate Court in the connection for the partition alleging that the properties were of the joint family properties and possession of 1/2 share in the suit property.

The case of the plaintiff is that the suit-properties are the joint family properties of the deceased Diwala Gausa, the plaintiff and the defendant. It is the further case of the plaintiff that deceased Diwala Gausa was the Karta of the joint family and Diwala Gausa purchased the suit properties with the aid of joint family funds under the provisions of the Bombay Tenancy and Agricultural Lands Act.

The defendant had challenged the judgment of the First Appellate Court on the ground that the First Appellat Court had erred in holding that the Diwala Gausa was not in sound state of mind and he did not understood the effect of the disposition he had made. According to defendant, the Appellate Court overlooked the fact that after marriage of the plaintiff, the plaintiff had been residing at his Father in-law’s house at Ghantoli. It was also alleged that the Appellate Court had not considered the important fact that the defendant’s father died before 30 years so the deceased Diwala Gausa had naturally more love and affection to his grand-son, who lost the love of his father at the age of around 12 or 14 years forever. It was also contended that the observation of the first appellate Court that at the time of execution of the Will false statement was made that no son of the deceased was alive, was contrary to the documentary evidence on record.

The Court raised 2 questions of law:

  • Whether on the facts and circumstances of the case, the lower Court has committed error in holding that the Will on which the appellant relied on is a Will executed by the deceased Diwala Gausa in sound state of mind on 11-1-1975?
  • Whether after the appellate Court came to the conclusion that the plaintiff does not prove that the suit properties are undivided family properties and erred to decree the suit of the plaintiff for one half share in the Suit property?

The trial Court had held that the suit properties were the self acquired properties of the deceased Diwala Gausa. The trial Court had also held that the plaintiff had failed to prove that the Suit properties were undivided family properties of the parties. The First Appellate Court had ultimately passed the Order to the effect that the plaintiff  was entitled to partition with metes and bounds and also directed the Collector, Surat or any subordinate to the Collector deputed by him, to make partition and separation of the lands and had also passed order for drawing the decree which was again challenged by the defendant in the Second Appeal.

Ms Dhara Shah, advocate for the appellant had vehemently submitted that deceased Diwala Gausa had executed the Will whereby the properties had been bequeathed to the appellant therein. She had also submitted that the plaintiff had never resided with the deceased and he was residing with his wife at his father-in-law’s house. She also submitted that the allegations made by the plaintiff regarding the properties being HUF, it was not proper as entire properties were self-acquired properties of the deceased.

Mr Nagesh Sood, advocate as an amicus curiae, had submitted that there were two agricultural properties and the deceased was only Karta of HUF. He had also submitted that the properties being agricultural lands and deceased being Karta of the HUF, the deceased had no right to bequeath the properties in favour of the defendant.

The Court put forward Section 59 and Section 82 of the Indian Succession Act and concluded that even a person who is deaf or dumb or blind can make a Will if they are able to do what they do by it. Even a person who is insane may make a Will during interval if he is of sound mind. Therefore, under Section 59, only rider for non-capability of making Will is of being minor who is prohibited to dispose of his property by Will. The Court further explained that a Will is an instrument of testamentary disposition of property being a legally acknowledged mode of bequeathing a testator’s acquisitions during his life time, to be acted upon only on his/ her demise, it is no longer res integra, that it carries with it an overwhelming element of sanctity. The Court further throwing light on Section 68 of the Act stated that requirement of Section 68 of the Evidence Act in proving the Will was to produce at least one of the attesting witnesses. In view of the provisions of Section 68 of the Evidence Act, there was no need to examine the scribe of Will; however, the appellate Court had heavily relied on the fact that the scribe of the Will has not been examined by the defendant. This reasoning and observation of the first Appellate Court was not in consonance with the legal requirement for the proof of the Will.

The Court allowed the appeal holding that first Appellate Court has committed serious error of law and further answered the question of law:

  • It is properly held by the trial Court that the Will was executed in the sound state of mind by the deceased Diwala Gausa.
  • Since the properties were held to be selfacquired properties of the deceased and ‘Will’ is found to be valid, the First Appellate Court has committed serious error of facts and law in passing decree in favour of plaintiff for 1/2 share in the suit properties.

[Sonaji Raghala Chaudhari v. Akha Diwala Chaudhari Thr’heirs, 2021 SCC OnLine Guj 990, decided on 02-07-2021]

Suchita Shukla, Editorial Assistant has reported this brief.

Kerala High Court
Case BriefsHigh Courts

Kerala High Court: N.Anil Kumar, J., allowed the instant revision petition against the concurrent findings of the Trial Court and the Appellate Court.

The facts of the case are such that, on 24-10-1998 the accused was found in possession of 2.5 litres of illicit arrack in contravention of the Kerala Abkari Act, 1077 (“the Act”). The Trial Court convicted and sentenced the accused to undergo rigorous imprisonment for a period of one year and also to pay a fine of Rs1,00,000, and in default of payment of fine to undergo simple imprisonment for six months. Against which, the petitioner preferred an appeal before the Court of Additional Sessions Judge. The Appellate Court while retaining the sentence of fine; reduced the substantive sentence of rigorous imprisonment for one year to rigorous imprisonment for six months.

In the instant case, the petitioner had challenged the impugned judgment of the Appellate Court. The counsel for the petitioner, V. Rajendran, submitted that the petitioner had already undergone the sentence imposed in this case. The Court, on recording the submission, directed the Superintendent, Central Prison, Kannur to furnish the detail of sentence undergone by the petitioner. The Superintendent of Prison submitted that the accused was released from prison after completion of sentence and default sentence for failure to pay fine.

On going through the evidence on record, the Court found no legal infirmity or perversity to set aside the concurrent conviction imposed by the two Courts. Thus, the Court confirmed the conviction concurrently imposed by the Trial Court as well as the Appellate Court. While dismissing the revision petition the Court directed that no further coercive steps shall be initiated against the petitioner anymore. [Prabhakaran Chirangodan v. State of Kerala, 2020 SCC OnLine Ker 7728, decided on 22-12-2020]

Case BriefsHigh Courts

Bombay High Court: Vibha Kankanwadi, J., observed that,

“The practice of pronouncing Judgments in appeal against conviction in absence of the accused, thereby dismissing the appeal and then directing the trial Court to issue warrant, requires to be deprecated.”

The instant application was filed by the original accused for suspension of substantive sentence, during the pendency of revision imposed against him by Judicial Magistrate after holding him guilty of committing an offence punishable under Section 138 of the Negotiable Instruments Act.

Bench stated that at first it is required to be seen, as to whether before admitting the revision and while dealing with the present application whether it is necessary first to direct the applicant to surrender himself.

It appears that the Appellate Court in the present case pronounced the Judgment on 04-05-2019 in absence of the appellant-accused.

Section 387 of CrPC deals with Judgment of subordinate Appellate Court and it provides that the rule contained in Chapter XXVII as to the judgment of a Criminal Court of original jurisdiction shall apply, so far as may be practicable, to the judgment in appeal of a Court of Session or Chief Judicial Magistrate.

“…if directions/ order is passed by the Appellate Court for exemption of the accused, then only the Judgment can be pronounced in absence of the accused; otherwise his presence should be secured before the Judgment is pronounced.”

No doubt, sub section (7) of Section 353 of the Code provides, that no judgment delivered by any Criminal Court shall be deemed to be invalid by the reason only in absence of any party, however, the Appellate Court cannot insist upon invoking sub section (7) of Section 353 of the Code if there was no endeavour on its part to secure the presence of the accused.

Court stated that it is the Appellate Court’s duty to see that the Judgment in an appeal against conviction should be pronounced in presence of the accused (only exception as enumerated in Section 353 (6) of the Code) and to take such appellant in custody upon the confirmation of the conviction.

Coming to the question of whether in the present case, Court could direct the revision applicant to surrender himself before the Appellate Court and then take up revision for hearing, Bench stated that the answer for the said question was in the Supreme Court’s decision of Bihari Prasad Singh v. State of Bihar, (2000) 10 SCC 346.

In the above-cited case, the following question was considered:

Whether the High Court while exercising its jurisdiction can refuse to hear or entertain the matter on the ground that the accused has not surrendered?

Following was observed:

“Under the provisions of the Criminal Procedure Code, there is no such requirement though many High Courts in this country have made such provision in the respective rules of the High Court. But it is stated to us that there is no such rule in the Patna High Court Rules. In that view of the matter the High Court was not justified in rejecting the application for revision solely on the ground that the accused has not surrendered.”

In view of the above discussion, Court held that the revision application cannot be rejected on the ground that the accused did not surrender and therefore, there was no bar on considering the present application.

What was the basic crux and background of the matter?

The complainant stated he had extended loan amount, from time to time, and the disputed cheque was given by the accused in the discharge of said legal debt or liability. Accused took a defence that he had already given certain cheques in possession of the complainant and one of the said cheques was misused. He led evidence and in his defence he tried to show, that the presumption under Section 139 of the Negotiable Instruments Act had been rebutted by him.

Court found the above to be an arguable case and hence held that the revision deserves to be admitted.

Bench directed for the suspension of the substantive part of the sentence till the revision was decided.[Fazal Khalil Ahemad Shaikh v. Nadkishor Ramnivasji Agrawal, Criminal Application No. 2743 of 2019, decided on 13-02-2020]

Uttarakhand High Court
Case BriefsHigh Courts

Uttaranchal High Court: A writ petition was entertained by Manoj K. Tiwari, J. where the petitioner was aggrieved by the order passed by the Appellate Court, where it set aside the status quo passed by the learned trial court. 

The Court observed the appellate jurisdiction over the original jurisdiction of the Courts and noted that, grant of temporary injunction was discretionary and appellate court should not interfere with such discretion of court of first instance except where discretion had been shown to exercised arbitrarily or capriciously or perversely or where the court had ignored the settled principles of law regulating grant or refusal of interlocutory injunctions, as held by the Supreme Court in Esha Ekta Appartments CHS Ltd. v. Municipal Corporation of Mumbai, (2012)4 SCC 689. It was also observed that the appellate courts when called upon to consider the correctness of an order of injunction passed by the trial courts which had reversed the order of lower courts, the Supreme Court had held that, “In such appeals, the appellate court will not interfere with the exercise of discretion of the court of first instance and substitute its own discretion except where the discretion has been shown to have been exercised arbitrarily, or capriciously or perversely or where the court had ignored the settled principles of law regulating grant or refusal of interlocutory injunctions. 

‘An appeal against exercise of discretion was said to be an appeal on principle. Appellate court doesn’t reassess the material and seek to reach a conclusion different from the one reached by the court below if the one reached by that court was reasonably possible on the material. The appellate court would normally not be justified in interfering with the exercise of discretion under appeal solely on the ground that if it had considered the matter at the trial stage it would have come to a contrary conclusion. If the discretion had been exercised by the trial court reasonably and in a judicial manner the fact that the appellate court took a different view may not justify interference with the trial court’s exercise of discretion.’

Hence, the Court stated that scope of interference by the appellate court with the court that passed the order of temporary injunction was limited and in any case, two views were available then the view taken by the court of the first instance had to be maintained. 

But Court while examining the instant petition noticed that the appellate court had not assigned any reason for disturbing the discretionary order passed by the trial court. It was also observed that in Maharwal Khejwaji Trust v. Baldev Dass, (2004) 8 SCC 488, the Supreme Court had held that “unless and until a case of irreparable loss or damage is made out by a party to the suit, the court should not permit a change of the said status quo, which may lead to loss or damage being caused to the party who may ultimately succeed and may further lead to multiplicity of proceedings.” 

It was observed by the Court that trial court had considered three major points while passing the order was balance of convenience, prima facie case and irreparable loss to the parties, it indicated that the trial court was justified in directing the parties to maintain status quo in order to maintain and preserve property. 

Thus, the petition was allowed and the order of the appellate court was set aside. [Ashok Kumar v. Pramil Kumar, 2019 SCC OnLine Utt 855, decided on 02-09-2019] 

Punjab and Haryana High Court
Case BriefsHigh Courts

Punjab and Haryana High Court: Amit Rawal J., dismissed the second appeal petition on the ground that there was no substantial question for determination.

The regular second appeal was preferred at the instance of the appellant/defendant against the decretal suit against the injunction order to her to not to interfere in the subject land.

The respondent-plaintiff alleged that plaintiff and defendant had joint land which was purchased by the plaintiff for Rs 1 lakh for the purpose of passage. The defendants were extending threats for construction on the land including 1 biswa and perpetually requested but resulted into celandra under Section 107(151) of Code of Criminal Procedure, 1973.

Sanjiv Gupta, counsel for the appellant/defendant submitted that suit for the injunction prima facie as per the record of local commissioner reflecting the possession of 1 biswa more than her ownership, was not maintainable. In the absence of relief of mandatory injunction, decree qua relief of possession could not be moulded under the provisions of Order 7 Rule 7 of Code of Civil Procedure, 1908.

The defendant opposed the suit and denied the averments and stated that she was the owner of the land measuring six biswa as per the registered sale deed.

Court opined that “litigants are required to exercise the due diligence in the pursuing the remedy particularly when the appellant had assailed the judgment and decree of the trial Court before the Lower Appellate Court. There is no equity on the person who has been found to be in alleged encroachment” Thus, the petition was dismissed.[Sabri v. Gulzar Ahmed, 2019 SCC OnLine P&H 708, decided on 24-05-2019]

Case BriefsHigh Courts

Himachal Pradesh High Court: Chander Bhusan Barowalia, J. dismissed a petition finding no merit in the appeal as when two reasonable conclusions are possible on the basis of the evidence, the appellate court should not disturb the finding of acquittal recorded by the trial Court.

In the present matter, the appellants alleged that they had found a person carrying a plastic can in his right hand. The person on seeing the police party got perplexed and on suspicion, he was arrested. During his personal search, he was found in conscious and exclusive possession of one plastic can, containing three bottles of illicit liquor. After separating one nip as a sample, both the nips as well as sample were sealed. The prosecution, in order to prove its case, examined as many as six witnesses. Statement of the accused was recorded under Section 313 CrPC, wherein he denied the prosecution case and claimed innocence. Additional Advocates General, Shiv Pal Manhas and P.K Bhatti with Raju Ram Rahi, Deputy Advocate General argued that the prosecution has proved the guilt of the accused beyond the shadow of reasonable doubt.

While H.K.S. Thakur, counsel for the respondent argued that the alleged quantity of three bottles of illicit liquor stated to be recovered from the respondent is a concocted story, as no independent witness was associated by the police. And even the Investigating Officer in his statement has specifically stated that he did not find it appropriate to associate any independent witness.

The Court after considering the facts and circumstances and the arguments advanced found that “when independent witnesses were available on spot the Investigating Officer should have associated them. However, the Investigating Officer simply stated that he does not find it proper to associate independent witnesses. The non joining of the independent prosecution witnesses when they were available, makes the prosecution case doubtful with respect to recovery of three bottles of illicit liquor”. The Court further relied on K. Prakashan v. P.K. Surenderan, (2008) 1 SCC 258 and T. Subramanian v. State of T.N., (2006) 1 SCC 401. Further, it took into consideration the principles culled out in Chandrappa v. State of Karnataka, (2007) 4 SCC 415 that, “If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court” amongst other things.[State of Himachal Pradesh v. Joban Dass, 2019 SCC OnLine HP 646, decided on 21-05-2019]

Case BriefsHigh Courts

Allahabad High Court: This petition was filed by petitioners before the Division Bench of Pankaj Kumar Jaiswal and Dr Yogendra Kumar Srivastava, JJ. praying for a direction to the respondent to decide the application of petitioner filed under Section 28-A of the Land Acquisition Act, 1894 and to re-determine compensation sought to be given to the petitioner.

Facts of the case were such that a notification was issued under Section 4(1) of the Act, 1894 where an award was passed by the Special Land Acquisition Officer, Ghaziabad in respect of certain land parcels. Petitioner did not challenge the aforementioned award under Section 18 of the Act but the same was challenged by other persons which gave rise to land acquisition references decided by District Judge thereby re-determining the compensation amount. It was against this judgment that the first appeal was filed which was decided with the re-determined compensation amount. Under the decision in the first appeal, the petitioner filed an application under Section 28-A of the Act to claim the benefit of the re-determined compensation. This application was rejected.

The question before Court was to decide if the application was time-barred under Section 28-A of the Act which mentioned about re-determination of the amount of compensation on the basis of the award of the Court within 3 months of its decision. Thereby leading to the second question from which Court’s decision the time period was to be calculated i.e. Reference Court or High Court first appeal. 

Krishna Mishra, learned counsel on behalf of petitioners, submitted that the time period for claiming the benefit of re-determined compensation amount was to begin after the decision in the first appeal and since their application was within that time period the application was validly made. Suresh Singh learned Addl. Chief Standing Counsel appearing on behalf of State respondents, submitted that the limitation period to file application was to be taken from the date of the award made by Reference Court which means that petitioner’s application was time-barred.

Under the Act, Court was defined to mean a principal Civil Court of original jurisdiction. Catena of cases were referred to concluding that limitation period should be computed from the date of award of Reference Court on basis of which re-determination was sought and not from the appeal which was filed against the award. Accordingly, the application thus filed was beyond the time period of 3 months if computed from the award of Reference Court. Further, proviso of the Section did not state any other reason for the extension of the time period than to obtain a copy of award.

High Court on the discussion above was of the view that petitioners could not have claimed the benefit of re-determined compensation as their application was time-barred. The application was to be filed within 3 months of the award passed by Reference Court and not after the decision of High Court in first appeal. Therefore, this petition was dismissed. [Tejpal Singh v. State of U.P., Writ C No. 7218 of 2019, Order dated 08-03-2019]

Case BriefsSupreme Court

Supreme Court: Reminding the Courts of the scope of their powers, the bench of Abhay Manohar Sapre and Dinesh Maheshwari, JJ has said:

“While considering the case of discharge sought immediately after the charge­sheet is filed, the Court cannot become an Appellate Court and start appreciating the evidence by finding out inconsistency in the statements of the witnesses.”

Background of the case:

  • An Inspector of Police and Sub-­inspector of Police were prosecuted for commission of the offences punishable under Section 7 read with Section 13(1)(d) of the Prevention of Corruption Act.
  • On charge­sheet being filed by the State Prosecuting Agency against the respondents after obtaining necessary sanction as required in law, both of them filed applications under Section 227 of the Cr.P.C. in the Court of Special Judge and Chief Judicial Magistrate.
  • The Chief Judicial Magistrate allowed the applications and discharged them from the case.
  • State approached the High Court and the High Court dismissed the revisions and affirmed the order of the Chief Judicial Magistrate, giving rise to filing of these appeals by the State by way of special leave in this Court.

When the matter reached Supreme Court, it had to decide whether the Courts below were   justified in allowing the discharge applications filed by the respondents under Section 227 of the Cr. P.C. Stating that the Court the High Court acted like an Appellate Court than as a Revisionary Court as if it was hearing the appeal against the final verdict of the Special Court, the Court said:

“consideration of the record for discharge purpose is one thing and the consideration of the record while deciding the appeal by the Appellate Court is another thing.”

The Court, hence, set aside the impugned order, dismissed the applications filed by the respondents under Section 227 of the Cr.P.C. and remanded the case to the Special Judge/CJM for its trial on merits in accordance with law.

[State v. J. Doraiswamy, 2019 SCC OnLine SC 338, decided on 07.03.2019]

Case BriefsSupreme Court

Supreme Court: In an appeal filed against the decision of the Allahabad High Court where it had rejected the application under Section 391 Cr.P.C on the ground that the additional evidence was filed with malafide intentions for delaying the decision of the appeal, the bench of Ashok Bhushan and KM Joseph, JJ said:

“When Statute grants right to appeal to an accused, he has right to take all steps and take benefit of all powers of the Appellate Court in the ends of the justice. In a criminal case Appellate Court has to consider as to whether conviction of the accused is sustainable or the appellant has made out a case for acquittal. The endeavour of all Courts has to reach to truth and justice.”

Present is the case where the appellant was convicted by a trail court on 07.10.2013 for cheating the complainant with regard to sale of agricultural land of the trust. He had produced a photocopy of the Trust Deed before the trial court, however, it was not proved.  On 08.10.2013, he appealed before the High Court and filed an application before the court to accept the certified copy of the Trust Deed and the Resolution and permit the appellant to lead evidence. The High Court, however, rejected the application and observed that the application was filed with some ulterior malafide motive.

Not agreeing with the view of the High Court, the bench of Ashok Bhushan and KM Joseph, JJ said:

“Filing of the application before the High Court to accept the certified copy of the Trust Deed and the Resolution and permit the appellant to lead evidence can in no manner be said to be malafide motive of the accused, who had been convicted in the appeal, has right to take all the grounds and also lead additional evidence, which in accordance with the Appellate Court is necessary in deciding the appeal.”

On the observation of the High Court that the application to take additional evidence at the appellate stage was filed by appellant for delaying the decision of the appeal to eternity, the bench said:

“when prosecution took twelve years’ time in leading evidence before the trial court and the judgment by trial court was delivered on 07.10.2013, the appeal was filed on 08.10.2013, how can appellant be castigated with the allegation that he intended to delay the appeal to eternity.”

It was noticed that trust Deed and the Resolution, which are foundation and basis for the start of the process of the sale of the land, were documents which ought to have been permitted to be proved to arrive at any conclusion to find out the criminal intent, if any, on the part of the appellant. The Court, hence, held that the High Court had failed to exercise its jurisdiction under Section 391 Cr.P.C. and has committed error in rejecting the applications under Section 391 Cr.P.C.

[Brig. Sukhjeet Singh v. State of Uttar Pradesh, 2019 SCC OnLine SC 72, decided on 24.01.2019]

Case BriefsHigh Courts

Karnataka High Court: A Single judge bench comprising of H.G. Ramesh, J. while hearing a civil writ petition against an interlocutory order of the trial court in a suit pending between petitioner and respondent, held that the supervisory jurisdiction of a High Court under Article 227 can be exercised only if the inferior court has not proceeded within its jurisdiction.

In the instant case, in a suit pending between petitioner and respondent, the trial court passed an interlocutory order allowing the respondent/ plaintiff to produce certain documents through secondary evidence. Aggrieved by the said order, the petitioner/ defendant preferred the present writ petition before the Hon’ble High Court.

The Court examined the law with respect to jurisdiction of High Courts under Articles 226 and 227 and relied on the judgment of  Apex court in Raj Kumar Bhatia v Subhash Chander Bhatia, (2018) 2 SCC 87 to hold that supervisory jurisdiction conferred on High Court under Article 227 is confined only to see whether an inferior court or tribunal has proceeded within the parameters of its jurisdiction.

Having regard to facts of the case, the court declined to entertain the instant writ petition. However, liberty was granted to the petitioner to challenge the impugned order before the Appellate Court as provided under Section 105 of the Code of Civil Procedure, 1908. [Karnataka Neeravari Nigam Limited v. Shankar Construction Company, WP (C) No. 46389 of 2015, decided on 05-10-2018]

Case BriefsSupreme Court

Supreme Court: Discouraging the practice of the appellate courts of reproducing the passages of the lower court’s order without proper analysis, the bench of Dipak Misra and A.M. Khanwilkar, JJ said that quoting passages from the trial court judgment and thereafter penning few lines and expressing the view that there is no reason to differ with the trial court judgment, can by no stretch be termed as a reasoned order. The Court said that the absence of analysis not only evinces non-application of mind but mummifies the core spirit of the judgment. A Judge has to constantly remind himself that absence of reason in the process of adjudication makes the ultimate decision pregnable.

Stating that the first appellate court has a defined role and its judgment should show application of mind and reflect the reasons on the basis of which it agrees with the trial court, the Court said that there has to be an “expression of opinion” in the proper sense of the said phrase. It cannot be said that mere concurrence meets the requirement of law. It was said that it is one thing to state that the appeal is without any substance and it is another thing to elucidate, analyse and arrive at the conclusion that the appeal is devoid of merit.

The Court was hearing an appeal challenging the Karnataka High Court order where the learned Judge had posed the question about the defensibility of the ultimate direction by the trial Court and thereafter proceeded to quote paragraphs from the trial court judgment. Remitting the matter for fresh disposal within 6 months, the Court said that posing a question which is relevant for adjudication of the appeal is not enough. There has to have been proper analysis of the same. Stating the facts and thereafter reproducing few passages from the trial Court and ultimately referring to certain exhibited documents in a cryptic manner will not convert an unreasoned judgment to a reasoned one. [U. Manjunath Rao v. U. Chandrashekar,  2017 SCC OnLine SC 865, decided on 04.08.2017]