Case BriefsForeign Courts

Supreme Court of Pakistan: A Full Bench of Manzoor Ahmad Malik, Syed Mansoor Ali Shah and Qazi Muhammad Amin Ahmed, JJ. set aside the impugned judgment and conviction of the appellant by extending the benefit of doubt.

The prosecution’s case was hinged on the dying declaration made by the deceased Haji Muhammed Zamin Khan (complainant), in which he said that he was on his way back from a condolence meeting when the respondent herein fired upon him. After making this statement to the police, he succumbed to his wounds. The accused was arrested, convicted under Section 302 of Pakistan Penal Code, 1860 and sentenced to death. Peshawar High Court however altered the death penalty into imprisonment for life. Aggrieved by the said order, the present appeal was filed by complainant’s son.

The learned counsel for the appellant, Astagfirullah, contended that in the absence of any mitigating circumstance, there was no occasion for the learned High Court to alter the death penalty into imprisonment for life. Whereas learned counsel for the accused-respondent, Ghulam Mohyuddin Malik, questioned the legality of conviction on the ground that the case was founded primarily on a dying declaration and the prosecution miserably failed to show as to who recorded deceased’s last words and thus it was unsafe to maintain the conviction.

The Court noted that the statement of the deceased was recorded by Munawar Khan, one of the prosecution witnesses, who dictated it to Khan Ghalib Khan (another prosecution witness) to be recorded in the first information report. However, the second prosecution witness denied recording the first information report and thus it was unknown as to who had recorded the deceased’s last words.

It was observed that dying declaration is an exception to the general rule of direct evidence and it is admitted to the detriment of an accused without the opportunity of cross-examination upon the declarant under the belief that a person, face to face with God, would tell nothing but the whole truth. Therefore, it was held that prosecution must demonstrate beyond the shadow of a doubt that the dying declaration comprised of the words of declarant alone without extraneous prompting or additions. Thus, the person who recorded the dying declaration is the most important witness to verify its veracity. However, this person was missing in the present case.

In view of the above, the Court held that it was grievously unsafe to maintain the conviction and hence by extending the benefit of the doubt to the appellant, the appeal was dismissed and respondent was directed to be released.[Somaid v. Ali Gohar, 2019 SCC OnLine Pak SC 9, decided on 30-04-2019]

Case BriefsHigh Courts

Gauhati High Court: Achintya Malla Bujor Barua, J. dismissed a petition against the order of the trial court whereby it had summoned the Controller of Examination of the Board of Secondary Education, Assam to produce relevant documents in order to prove the age of the prosecutrix.

The petitioner was facing trial under Sections 366, 342 and 34 IPC along with Section 4 of Protection of Children from Sexual Offences Act, 2012. As per the petitioner, the arguments had concluded and the matter was fixed for judgment on 26-04-2019. However, submitted the petitioner, that as he had taken a substantive stand that the prosecutrix was not below the age of 18 years on the date of occurrence. The Aditional Sessions Judge decided to fill up the lacuna in the prosecution case by suo moto issuing an order, whereby summons was issued to the Controller of Examination as mentioned above.

The petitioner was represented by H. Goswami, Advocate, contended that under Section 311 CrPC, the trial court can summon a material witness or examine any person only at the stage of enquiry or trial or in any other proceeding under the Code and not after termination/conclusion of the trial. The petitioner also relied upon Section 353 which inter alia provides that the judgment in every trial in any criminal court of original jurisdiction shall be pronounced in the open court presiding officer immediately after termination of the trial or at some subsequent time of which notice shall be given to the parties. It was contended that as per the provisions of Section 353 which provides for judgment after the termination of a trial, any order passed in a trial reserving a matter for judgment, would itself be an indication that the trial of the matter had already concluded. Accordingly, the very order posting the matter for judgment on 26-04-2019 was itself a conclusive indication that the stage of termination of the trial already had been arrived.

Rejecting such contentions, the High Court observed: “Section 353 nowhere provides that once a proceeding is fixed for judgment that by itself is an indication that it is the termination of the trial. All that it provides is that the Judgment shall be pronounced by the presiding officer after the termination of the trial. Therefore, only a pronouncement of the judgment itself can be understood to be a situation where there is a termination of the trial and merely because the matter stood fixed for a judgment to be delivered on a subsequent date by itself cannot be construed to be a termination of the trial.

It was noted that Section 311 clearly provides that any Court may at any stage of the enquiry trial or other proceedings under the Code; summon a person as a witness, or examine the person in attendance, though not summoned as a witness, or recall and re-examine any person already examined, if his evidence appears to the Court to be essential to the just decision of the case. Resultantly, finding no infirmity in the impugned order, the Court dismissed the petition.[Deepjyoti Kalita v. State of Assam, 2019 SCC OnLine Gau 2631, decided on 04-06-2019]

Case BriefsHigh Courts

Meghalaya High Court: A Division Bench of Mohammad Yaqoob Mir, CJ and H.S. Thangkhiew, J. set aside the controversial judgment passed last year by Justice S.R. Sen in Amon Rana v. State of Meghalaya, 2018 SCC OnLine Megh 274 wherein, now retired, Justice Sen had observed that India ought to have been declared a “Hindu Rashtra”.[1]

Respondent herein had applied for issuance of domicile certificate for recruitment in armed forces but was denied the same by Meghalaya Government. In a petition assailing the denial order of Government, Justice Sen had set aside two notifications issued by the Meghalaya Government relating to the issuance of permanent residence certificate and domicile certificates. He stated that the ongoing National Register of Citizens (NRC) process was defective, and also had observed that anyone opposing Indian laws and the Constitution should not be considered a citizen of India. He had remarked that India should have declared itself a Hindu country like Pakistan declared itself an Islamic nation. When he drew flak from various quarters for his observations, Justice Sen issued a clarification stating that his judgment was not politically motivated or influenced by any party.

In the present appeal, the learned Advocate General, A. Kumar, contended that the said notifications quashed by Justice Sen were not even challenged in the petition filed by the respondent. Hence, a case for adjudication could not be made out for a subject which was not even part of the pleadings. The learned Advocate General, further contended that the direction for taking necessary steps to bring a law to safeguard the interest of Hindus, Sikhs, Jains, Buddhists, Christians, Parsis, Khasis and Garos and certain other observations made in the judgment were not consistent with the Preamble and other provisions of the Constitution.

At the outset, the Court noted that while an SLP seeking an expunction of Justice Sen’s remarks and observations was pending before the Supreme Court, the same would not be a bar for deciding the instant appeal.

It was held that the setting aside of the two notifications by learned Single Judge in absence of any challenge in the writ petition was totally impermissible, and therefore, findings regarding the same were unsustainable. The Court observed that the petition filed by the respondent herein before Single Judge was for seeking issuance of domicile certificate. There was no requirement to go into the superfluous issues not brought up by either party. Direction of policy framing in the exercise of writ jurisdiction was impermissible. Reliance in this regard was placed on Asif Hameed v. State of J&K, 1989 Supp (2) SCC 364 where it was held that “The Constitution does not permit the court to direct or advise the executive in matters of policy or to sermonize qua any matter which under the Constitution lies within the sphere of legislature or executive.”

Further, any direct or indirect observation which offends the Preamble of the Constitution could not be sustained. It was noted that directions of the Single Judge Bench offended the “secular colour of the country and the provisions of the Constitution of India”.

The impugned judgment was set aside observing that, “After bestowing our thoughtful consideration to the entire gamut of the matter we have reached to a firm conclusion that the judgment impugned dated 10-12-2018 is legally flawed and is inconsistent with the constitutional principles, the observations made and directions passed therein are totally superfluous, therefore, is set aside in its entirety, as such shall be non est.”

However, it was opined that writ petition for issue of the requisite certificate be allowed and provisional certificate as issued in pursuance to the interim direction in favour of the respondent herein based on which he had joined the armed forces be treated as final.[State of Meghalaya v. Amon Rana, 2019 SCC OnLine Megh 95, decided on 24-05-2019]

[1] https://blog.scconline.com/post/2018/12/13/first-we-are-indians-then-good-human-beings-then-comes-the-community-india-should-have-become-hindu-country-but-it-remained-secular-meghalaya-hc/

Case BriefsHigh Courts

Uttaranchal High Court: A Division Bench of Ramesh Ranganathan, C.J. and N.S. Dhanik, J. contemplated a writ petition filed in pursuant to the order passed by Court in 2019, which directed the Project Director to prepare a set of instructions, in consultation with the concerned officials, for effective implementation of the Mid-day Meal Scheme, directed each school to strictly adhere thereto, and  periodical inspections to be caused by a separate inspection staff with a view to satisfy himself that the funds earmarked for this Scheme were not misappropriated, an affidavit was filed by the Project Director enclosing thereto the Government Order in this regard.

The petitioner i.e. the Project Director in the affidavit stated that, immediately after the Government Order was issued, the Secretary and School Education had issued directions to all District Magistrates of Uttarakhand for implementation of the said guidelines.

Siddharth Sah, learned counsel for the petitioner contended that, Principals of the said schools where lapse were noticed and implementation of Scheme was ineffective, were let off with a mere adverse entry. The counsel was satisfied with the guidelines issued by State, but highlighted certain loopholes as well in the practical approach.

The Court observed considerable force in the submissions of the petitioner and noted that undue leniency was shown to those who failed to discharge the duties entrusted to them, of effective implementation of the Scheme, which may well embolden others to be negligent or to misutilize funds earmarked for the Scheme. The Court advised to take more stringent disciplinary actions against the concerned Principals and officers. It directed the first respondent to consider giving wide publicity to the guidelines now framed for effective implementation of the Scheme, so that all stakeholders are made aware of the duties which those, in charge of the Scheme, were required to discharge.

The Court further held, “in the exercise of its jurisdiction under Article 226 of the Constitution of India, this Court would, ordinarily, not sit in judgment over the decision of the competent authority in imposing punishment. We see no reason, therefore, to now direct the authorities to impose a more stringent punishment on the Principal concerned.”[Somendra Kumar v. State of Uttarakhand, 2019 SCC OnLine Utt 359, decided on 14-05-2019]

Case BriefsHigh Courts

Himachal Pradesh High Court: The Bench of Sandeep Sharma, J. hearing a revision petition against an order of District Judge, held that an executing Court cannot go beyond the judgment passed by a Court in appeal.

In the present case, respondent’s land was acquired for construction of a road and he was awarded compensation for the same in terms of a judgment of this Court (in RFA Nos. 282 of 2000 and 44 of 2002). He filed an execution petition in District Court for execution of the order awarding compensation. The State – petitioner herein – filed an objection against the execution of the said petition, but the same was not accepted and the execution petition was allowed. Aggrieved thereby, the State filed the instant revision petition praying to set aside the impugned order and to make a fresh calculation of compensation.

The Court held that there was no illegality or infirmity in the impugned order passed by the District Judge. The calculation of compensation to be awarded to the respondent was in terms of the judgment delivered in RFAs referred to above. Therefore, the District Court, sitting as an executing Court, could not have gone beyond the judgment or decree passed in RFA.

However, in order to bring more clarity, the Court directed District Judge to pass a fresh order which shall be a speaking order, detailing the calculations based upon the verdict rendered by this court in the aforesaid RFAs, to remove any ambiguity.

The petition was disposed of in terms of the aforesaid directions.[State of Himachal Pradesh v. Sewak Ram, 2018 SCC OnLine HP 1851, decided on 20-12-2018]

Case BriefsHigh Courts

Punjab and Haryana High Court: This appeal was preferred before a 2-Judge Bench of Rakesh Kumar and  Anupinder Singh, JJ., against the judgment and decree passed by the Additional District Judge by which petition filed under Sections 11 and 12 of the Hindu Marriage Act, 1955 by the respondent-husband for annulment of marriage with the appellant-wife was allowed.

During the pendency of this appeal, the appellant filed an application for maintenance pendente lite under Section 24 of the Act. The above application was allowed and thereby the respondent was supposed to pay Rs. 5,000 per month towards maintenance pendente lite. But since respondent failed to do so he was directed to pay entire arrears of maintenance pendente elite. The only contention made by respondent for non-payment of maintenance was that he did not have any money to give. High Court struck off respondent’s only defence leaving with the issue that if the respondent has no defence can the judgment and decree passed by the trial Court sustain or is to be set aside.

High Court struck off the defence of respondent on the ground of non-payment of maintenance, that he wanted annulment of marriage on the ground that appellant had already married twice and marriage with respondent was her third marriage with previous marriage subsisting. Thus, there remained no defence on record for annulment of marriage. Therefore, this appeal was allowed and judgment and decree passed by trial court was set aside. [Sonia v. Deepak, 2018 SCC OnLine P&H 2024, decided on 04-12-2018]

Case BriefsSupreme Court

Supreme Court: While addressing the ongoing issue relating to the discrepancy in preliminary examinations conducted for Uttar Pradesh Public Service Commission  2018, a vacation bench comprising of Deepak Gupta, J. speaking for himself and U.U. Lalit, J. set aside the judgment of Allahabad High Court wherein answers to certain questions were scrapped by the Court.

The answer key for the preliminary paper of General Studies-I, held for U.P. Public Service Commission 2018 to fill vacancies in Upper Subordinate Services in the State was challenged by certain candidates appearing for the exam, before the Allahabad HC. The High Court, while sustaining the challenge of the petitioners, struck down answers to four questions holding them to be incorrect. Aggrieved by the decision of the High Court, the respondent Commission approached the Apex Court.

The Supreme Court held such interference by the High Court untenable. It found that the answer key was published by the Commission after verification and suggestions of a 15-member and 18-member expert committees. Further, the answer key was examined by a 26-member expert committee on receiving as many as 926 objections by the candidates who appeared for the exam. The Hon’ble Bench observed the law to be well settled regarding the extent and power of the Court to interfere in academic matters. Referring to its earlier decisions in Kanpur University v. Samir Gupta, (1983) 4 SCC 309, and Ranvijay Singh v. State of U.P., (2018) 2 SCC 357, the Hon’ble Court observed, the State Government should devise a system for moderating answers key furnished by the paper setters. The Constitutional Courts must exercise great restraint in such matters and should be reluctant to entertain such pleas. Judges cannot take on the role of academic experts and no interference is permissible unless the candidate demonstrates that the key answers are patently wrong on the face of it. Noting the fact that the answer key was published after moderation by two expert committees, the Court held that the Allahabad High Court transgressed its jurisdiction in setting aside the decision of experts in the field. Accordingly, the impugned judgment was reversed. [U.P. Public Service Commission v. Rahul Singh,2018 SCC OnLine SC 609, decided 14-6-2018]

Case BriefsHigh Courts

Delhi High Court: A Single Judge Bench dismissed objections filed under Section 34 of the Arbitration and Conciliation Act, 1996 against an award in an appeal before it.

Upon analysis the Court found that the impugned judgment did not resemble a judgment as it did not include discussion upon issues and the rationale for the decision the court took. The impugned order had only referred to the law under Section 34 with the observation that the court is satisfied that the objections filed did not come within the scope of Section 34 of the Act.

The Court referred to Harbhajan Kaur Bhatia v. M/s Aadya Trading & Investment Pvt. Ltd.,  2017 SCC OnLine Del 9176, and held that the impugned judgment was not a judgment as can be said in law, setting it aside. The Court remanded the matter before the District and Sessions Judge, Patiala House Courts, New Delhi for proper disposal. Appeal allowed. [India Infoline Ltd. v. Santosh Kumar Saxena,  2017 SCC OnLine Del 11254, decided on 30.10.2017]

 

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]

Case BriefsSupreme Court

Supreme Court: Reminding the courts of their judicial duties, the bench of Dipak Misra and Amitava Roy, JJ said that a trial Judge should remember that he has immense responsibility as he has a lawful duty to record the evidence in the prescribed manner keeping in mind the command postulated in Section 309 of the CrPC and pronounce the judgment as provided under the Code. Non-availability of judgment can never be a judgment because there is no declaration by way of pronouncement in the open court that the accused has been convicted or acquitted.

In the present case, a trial judge had delivered the judgment of acquittal of the persons accused under Sections 304B, 498A/34, 328 IPC read with Section 3/4 of Dowry Prohibition Act, 1961 but the same was not available on record as the judgment had not actually been dictated, dated or signed. The High Court of Chhattisgarh had then ordered the transfer of the matter to another Sessions Judge for rehearing. Aggrieved by the said order of the High Court, the accused persons had argued that the nature of order passed by the learned trial judge would amount to a judgment and in the absence of any appeal preferred by the State there could not have been a direction for rehearing of the sessions case as such action runs contrary to the provisions of CrPC. Rejecting the said contention, the Court said that when a situation like the present one crops up, it causes agony and hurts the justice dispensation system and no one has any right to do so. The High Court by rectifying the grave error has acted in furtherance of the cause of justice.

It was further explained that though CrPC does not define the term “judgment”, yet it has clearly laid down how the judgment is to be pronounced. The provisions clearly spell out that it is imperative on the part of the learned trial judge to pronounce the judgment in open court by delivering the whole of the judgment or by reading out the whole of the judgment or by reading out the operative part of the judgment and explaining the substance of the judgment in a language which is understood by the accused or his pleader. Further, the trial judge may not read the whole of the judgment and may read operative part of the judgment but it does not in any way suggest that the result of the case will be announced and the judgment would not be available on record. [Ajay Singh v. State of Chhattisgarh, 2017 SCC OnLine SC 24, decided on 06.01.2017]