legislative intent

Case BriefsSupreme Court

Supreme Court: The 3-judge bench of Ranjan Gogoi, CJ and Deepak Gupta and Sanjiv Khanna, JJ has held that the power of a police officer under Section 102 of the Criminal Procedure Code, 1973 to seize any property, which may be found under circumstances that create suspicion of the commission of any offence, would not include the power to attach, seize and seal an immovable property. Khanna, J, writing the judgment for the bench, however, clarified,

“This, however, would not bar or prohibit the police officer from seizing documents/ papers of title relating to immovable property, as it is distinct and different from seizure of immovable property.”

The verdict came in a reference made by a Division Bench of Jagdish Singh Khehar and Arun Mishra, JJ vide order dated November 18, 2014, noticing that the issues that arise have far reaching and serious consequences.

Interpreting Section 102, the bench said that the language of Section 102 of the Code does not support the interpretation that the police officer has the power to dispossess a person in occupation and take possession of an immovable property in order to seize it. Section 102 is not, per se, an enabling provision by which the police officer acts to seize the property to do justice and to hand over the property to a person whom the police officer feels is the rightful and true owner.

It further explained that the expression ‘circumstances which create suspicion of the commission of any offence’ in Section 102 does not refer to a firm opinion or an adjudication/finding by a police officer to ascertain whether or not ‘any property’ is required to be seized. The word ‘suspicion’ is a weaker and a broader expression than ‘reasonable belief’ or ‘satisfaction’. The police officer is an investigator and not an adjudicator or a decision maker. This is the reason why the Ordinance was enacted to deal with attachment of money and immovable properties in cases of scheduled offences.

“In case and if we allow the police officer to ‘seize’ immovable property on a mere ‘suspicion of the commission of any offence’, it would mean and imply giving a drastic and extreme power to dispossess etc. to the police officer on a mere conjecture and surmise, that is, on suspicion, which has hitherto not been exercised.”

It was further held that the disputes relating to title, possession, etc., of immovable property are civil disputes which have to be decided and adjudicated in Civil Courts. The Court said,

“We must discourage and stall any attempt to convert civil disputes into criminal cases to put pressure on the other side.”

Gupta, J wrote a separate concurring verdict where he highlighted that the Code of Criminal Procedure itself the Legislature has in various provisions specifically used the words ‘movable’ and ‘immovable’ property as opposed to the words ‘any property’ under in Section 102, hence, the phrase ‘any property’ in Section 102 will only cover moveable property and not immovable property.

[Nevada Properties Pvt. Ltd. State of Maharashtra, 2019 SCC OnLine SC 1247, decided on 24.09.2019]

Case BriefsHigh Courts

Bombay High Court: Rohit B. Deo, J. allowed a criminal appeal filed against the judgment of the Additional Sessions Judge whereby the appellant was convicted for the offence of committing rape repeatedly on the same woman punishable under Section 376(1)(n) IPC along with the offence punishable under Section 506 (criminal intimidation).

The case against the appellant was that he abducted the victim and subjected her to forcible intercourse multiple times. He was convicted as aforesaid and sentenced to suffer rigorous imprisonment for a term of 10 years. Aggrieved thereby, the appellant filed the present appeal.

F.N. Haidri, Advocate representing the appellant contended that even if it is assumed that there was sexual intercourse, it was consensual. Per contra, TA Mirza, APP appearing for the State submitted that the defence of consent must be rejected because the statutory presumption under Section 114-A of the Evidence Act is not rebutted.

On perusal, the High Court was satisfied that evidence of the victim was not of such sterling quality as would obviate the need to seek corroboration. Perusing further the facts and the medical and forensic evidence, the Court was of the opinion that there were many holes grey areas and it would be absolutely unsafe to base the conviction on victim’s testimony which was not corroborated. As far as defence of consent was concerned, the Court observed that the prosecution failed to prove the foundational facts. It was said: “The legislative intent is not that the accused must disprove the absence of consent beyond a reasonable doubt. It would not be necessary for the accused to adduce direct evidence to prove that there was consent or to disprove the absence of consent. The accused can rely on material brought on record in the cross-examination of the victim and the evidence of the other prosecution witnesses. In the present case, enough material is brought on record in the cross-examination of the victim and the evidence of the other prosecution witnesses to lend credibility to the alternate defence theory that the sex was consensual.”

The Court held that the prosecution failed to prove the offence beyond reasonable doubt and the gulf between suspicion and proof was not bridged. Consequently, the Court acquitted the appellant of all the offence and directed his release. [Mohan v. State of Maharashtra, 2019 SCC OnLine Bom 1407, decided on 30-07-2019]

Case BriefsHigh Courts

Bombay High Court: A Single Judge Bench comprising of Rohit B. Deo, J. quashed the order of the trial court whereby plaintiff’s application under Order XVIII Rule 3-A CPC seeking permission to examine his power of attorney (his son) he himself steps into the box.

The petitioners were the defendants in the special civil suit instituted by the respondent-plaintiff seeking a decree of damages for defamation. The application was predicated on the assertion that the power of attorney holder was personally acquainted with the facts. The averment in the application was that the plaintiff was aged 80 years and suffering from various ailments. It was also averred that no prejudice would be caused to the defendants if the son of the plaintiff is examined before the plaintiff. The defendants opposed the application, inter alia, denying that the plaintiff was suffering from various ailments. However, by the order impugned, the trial court allowed the plaintiff’s application under Order XVIII Rule 3-A. Aggrieved thereby, the instant petition was filed by the defendant.

The High Court, after considering the facts and circumstances of the case, observed that the legislative mandate is that ordinarily where a litigant himself wishes to appear as a witness, he shall so appear before any other witness in his behalf has been examined. Rule 3-A confers a discretion on the Court to permit, for reasons to be recorded, the plaintiff to appear as his own witness at a later stage. However, implicit in the statutory scheme is the rider that the normal rule may be deviated from only in exceptional circumstances and for reasons recorded which must sustain judicial review. “The legislative object of bringing on statute Rule 3-A was to ensure that a litigant should not be permitted to bide his time and to fill in the lacuna or cover the loopholes after the other witnesses are examined.” In the matter at hand, the Court found it difficult to believe that the plaintiff was suffering from various ailments to such an extent that he was not in a position to step into the witness box. Therefore, the Court held that the order impugned militate against the object and intendment of Order XVIII Rule 3-A, which was accordingly quashed. [Sanj Dainik Lokopchar v. Gokulchand Govindlal Sananda,2018 SCC OnLine Bom 3336, decided on 11-10-2018]

Case BriefsSupreme Court

Supreme Court: The bench of Ranjan Gogoi and Navin Sinha, JJ held the exercise of revisional power under Section 40 of the Haryana General Sales Tax Act, 1973 after its repeal on 1.4.2003, by the Haryana Value Added Tax, 2003, is not sustainable.

It was held that any interpretation saving the revisional power under Section 40 of the Act of 1973, without any proceedings pending on the relevant date, by resort to Section 4 of the Punjab General Clause Act, 1858 would render the amendment redundant, and an exercise in futility, something which the legislature never intended to do. It was held that the legislature, in its wisdom having noticed the limitation and constraints under Section 61 of the Act of 2003, made necessary amendments to the same by Act No. 3 of 2010 on 02.04.2010. Hence, such an incongruous interpretation leading to absurdity has to be avoided.

It was further explained that Section 4 of the Punjab General Clauses Act, 1858 will have no application in view of the contrary intendment expressed in Section 61 of the repealing Act. Had a contrary intention not been expressed, the issues arising for consideration would have been entirely different.

In the present case, where here were no proceedings pending against the respondent under the Act of 1973 when the new Act came into force on 01.04.2003, the Court held that the assessment under the Act of 1973 having been completed and refund ordered, the exercise of suo-moto revisional powers under Section 40 of the same after repeal was clearly unsustainable in view of the contrary intention expressed under Section 61 of the Act of 2003, saving only pending proceedings. [State of Haryana v. Hindustan Construction Company Ltd.,  2017 SCC OnLine SC 1110, decided on 15.09.2017]

Case BriefsSupreme Court

Supreme Court:  In the matter where the first proviso to Rule 3(2)(c) of the Karnataka Value Added Tax Rules, 2005 was being interpreted to facilitate the determination of taxable turnover as defined in Section 2(34) of the Karnataka Value Added Tax Act, 2003 in interface with Section 30 of the Act and Rule 31 of the Rules, the Court said that the interpretation to be extended to the proviso involved has to be essentially in accord with the legislative intention to sustain realistically the benefit of trade discount as envisaged. Any exposition to probabilise exaction of the levy in excess of the due, being impermissible cannot be thus a conceivable entailment of any law on imperative impost.

The Court further said that to insist on the quantification of trade discount for deduction at the time of sale itself, by incorporating the same in the tax invoice/bill of sale, would be to demand the impossible for all practical purposes and thus would be ill-logical, irrational and absurd. Trade discount though an admitted phenomenon in commerce, the computation thereof may depend on various factors singular to the parties as well as by way of uniform norms in business not necessarily enforceable or implementable at the time of the original sale. To deny the benefit of deduction only on the ground of omission to reflect the trade discount though actually granted in future, in the tax invoice/bill of sale at the time of the original transaction would be to ignore the contemporaneous actuality and be unrealistic, unfair, unjust and deprivatory. While, devious manipulations in trade discount to avoid tax in a given fact situation is not an impossibility, such avoidance can be effectively prevented by insisting on the proof of such discount, if granted.

The bench of Dipak Misra and Amitava Roy, JJ said that the requirement of reference of the discount in the tax invoice or bill of sale to qualify it for deduction has to be construed in relation to the transaction resulting in the final sale/purchase price and not limited to them original sale sans the trade discount. However, the transactions allowing discount have to be proved on the basis of contemporaneous records and the final sale price after deducting the trade discount must mandatorily be reflected in the accounts as stipulated under Rule 3(2)(c) of the Rules. The sale/purchase price has to be adjudged on a combined consideration of the tax invoice or bill of sale as the case may be along with the accounts reflecting the trade discount and the actual price paid. The first proviso has thus to be so read down, as above, to be in consonance with the true intendment of the legislature and to achieve as well the avowed objective of correct determination of the taxable turnover. [Southern Motors v. State of Karnataka, 2017 SCC OnLine SC 42, decided on 18.01.2017]

 

Case BriefsSupreme Court

Supreme Court: In a petition highlighting the plight of the members of Scheduled Castes and Scheduled Tribes, the Court noticed that there has been a failure in complying with the provisions of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 as the laudable object with which the Act had been made is defeated by the indifferent attitude of the authorities.

Stating the legislative intent behind the enactment of the Act, the Court noted that  Parliament acknowledged that the Scheduled Castes and Scheduled Tribes were subject to various offences, indignities, humiliations and harassments perpetually. Numerous incidents of brutalities and atrocities depriving the Scheduled Castes and Scheduled Tribes of their life and property were a cause of concern for Parliament.

Regarding the contention of the Union of India that the State Governments are responsible for carrying out the provisions of the Act, the Court said that the Central Government also has an important role to play in ensuring the compliance of the provisions of the Act. Section 21(4) of the Act provides for a report on the measures taken by the Central Government and State Governments for the effective implementation of the Act to be placed before  Parliament every year. The constitutional goal of equality for all the citizens of this country can be achieved only when the rights of the Scheduled Castes and Scheduled Tribes are protected.

The 3-Judge Bench of T.S. Thkur, CJ and Dr. D.Y. Chandrachud and L. Nageswararao, JJ directed the Central Government and State Governments to strictly enforce the provisions of the Act and also directed the National Commissions to discharge their duties to protect the Scheduled Castes and Scheduled Tribes. The Court also asked the National Legal Services Authority to formulate appropriate schemes to spread awareness and provide free legal aid to members of the Scheduled Castes and Scheduled Tribes. [National Campaign on Dalit Human Rights v. Union of India, 2016 SCC OnLine SC 1488, decided on 15.12.2016]