Case BriefsSupreme Court

Supreme Court: On the question relating to the power of the court to grant leave to defend in case of sham or moonshine defence in a commercial dispute, the bench of Ashok Bhushan and Navin Sinha, JJ said,

“if the court is satisfied of a plausible or probable defence and which defence is not considered a sham or moonshine, but yet leaving certain doubts in the mind of the court, it may grant conditional leave to defend.”

The Court also explained that in a summary suit, if the defendant discloses such facts of a prima facie fair and reasonable defence, the court may grant unconditional leave to defend. This naturally   concerns the subjective satisfaction of the court on basis of the materials that may be placed before it.

Explaining the distinction between both the above mentioned subjective satisfactions of the court, the bench said,

“in the latter case there is an element of discretion vested in the court. Such discretion is not absolute but has to be judiciously exercised tempered with what is just and proper in the facts of a particular case.”

The court said that the ultimate object of a summary suit is expeditious disposal of a commercial dispute. The discretion vested in the court therefore requires it to maintain the delicate balance between the respective rights and contentions by not passing an order which may ultimately end up impeding the speedy resolution of the dispute.

The Court also relied upon the decision in IDBI Trusteeship Services Limited vs. Hubtown Limited,  (2017) 1 SCC 568, wherein it was held,

“17.3 Even if the defendant raises triable issues, if a doubt is left with the trial Judge about the defendant’s good faith, or the genuineness of the triable issues, the trial Judge may impose conditions both as to time or mode of trial, as  well as payment into court or furnishing security. Care must be taken to see that the object of the provisions to assist expeditious disposal of commercial causes is not defeated. Care must also be taken to see that such triable issues are not shut out by unduly severe orders as to deposit or security.

17.4. If the defendant raises a defence which is plausible but improbable, the trial Judge may impose conditions as to time or mode of trial, as well as payment into court, or furnishing security. As such a defence does not raise triable issues, conditions as to deposit or security or both can extend to the entire principal sum together with such interest as the court feels the justice of the case requires.”

[Sudin Dilip Talaulikar v. Polycap Wires Pvt. Ltd, 2019 SCC OnLine SC 857, decided on 15.07.2019]

Case BriefsHigh Courts

Orissa High Court: While deciding the issue that whether it would be proper to quash the criminal proceedings against the petitioner in an offence of abduction and gang rape especially when prima facie materials on record concerning his complicity in the crime have been collected during course of investigation, but the co-accused persons have been acquitted of all the charges on the ground that the victim and other independent witnesses have not supported the prosecution case, the Bench of S.K. Sahoo, J., dismissing the petition, held that a Court cannot quash the criminal proceedings against the petitioner forming an assumption on the ground that the co-accused persons have been acquitted as the victim did not support the prosecution case.

As per the facts, the petitioner and other co- accused persons was charged under Sections 363/366/376(2) (g) read with Section 34 IPC and Section 3 of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989, for abducting and gang raping a married woman. The victim however turned a hostile witness, as a result of which the co- accused persons were acquitted. Arupananda Das, Addl. Government Advocate for the State put forth before the Court that during course of investigation and from the statements of the victim, prima facie case was found against the petitioner and accordingly, charge sheet was submitted. Thus merely because the victim did not support the prosecution case during trial in respect of the co-accused persons, the same cannot be a ground to quash the criminal proceeding against the petitioner.

Perusing the facts of the case, the Court observed that it is a case of abduction and gang rape of a married lady, and even though the victim turned hostile during the trial of the co- accused persons, it cannot be said that she will do the same during the trial of the petitioner. The Court noted that if the accused against whom accusation of abduction and gang rape is there remains absconding, and watches the criminal proceeding in respect of the co-accused persons and after such proceeding ended in acquittal, he comes out of his shell feeling that in view of the acquittal of the co-accused persons, the prosecution case against him will become weak and if the Court accepts his plea on the basis of the evidence adduced in the trial of the co-accused persons and quashes the proceeding against him, then it would be a travesty of justice. Thus it cannot be said that the continuance of the criminal proceeding against the petitioner would be an abuse of process. The Court thereby refused to invoke the inherent power under Section 482 of CrPC. [Ajay Kumar Sethi v. State of Orissa, 2018 SCC OnLine Ori 275, decided on 09-04-2018]

Case BriefsHigh Courts

Tripura High Court: While deciding upon the present writ petition wherein the petitioner’s appointment in Group- D post was cancelled by the respondents (High Court of Tripura) on the ground of an FIR registered against him, the Division Bench of Ajay Rastogi, C.J., and S. Talapatra,J., held that the FIR once registered has been quashed by the Court under Section 482 of Cr.PC, no inference can be drawn to impute any adverse antecedents which in any manner may deprive an individual from seeking public employment.

As per the facts, the petitioner was duly selected in Group D post. However the petitioner’s selection was cancelled owing to the fact that an FIR was registered against him under Sections 3,4,5,6(2)(4) & 7 of the Immoral Traffic (Prevention) Act, 1956. Th petitioner challenged the FIR and it was subsequently quashed by this Court in exercise of its powers under Section 482 of CrPC. Yet even after the quashment, the respondents refused to consider the petitioner’s appointment on the ground that his conduct does not generate confidence for employment in the service of the High Court. The petitioner argued that there was no misrepresentation on his part and the FIR against him was a result of false implication; and once this Court has quashed the FIR, the petitioner had a clean record again. Therefore there was no ground upon which he could be denied employment. The petitioner via his counsel Raju Datta, contended that the act of the respondents in rejecting the petitioner’s employment, was arbitrary, therefore it demands judicial interference. Counsel for the respondents contended that mere selection and offer of appointment does not confer any vested right and the decision of the authority cannot be said to be per se arbitrary.

Upon perusal of the issue and facts, the Court observed that Rule 9 of High Court of Tripura Services (Appointment, Conditions of Service and Conduct) Rules, 2014 prescribe certain disqualifications for appointment and sub-rule (c) of Rule 9 clearly envisages that if one has been convicted of an offence involving moral turpitude could be a reason for disqualification for appointment. However in the present case, the FIR was found to be fabricated, hence quashed. Other than the quashed FIR, there is no criminal history of the petitioner which could render him disqualified for public employment. The Court thus directed the respondents to not to draw any adverse inference to implicate the petitioner, and consider his candidature for appointment in Group D post. [Tapas Chakraborty v. High Court of Tripura, 2018 SCC OnLine Tri 57, decided on 10-04-2018]

Case BriefsHigh Courts


Hyderabad High Court: In the instant appeal, the question arose that whether a counter-claim can be rejected in terms of Order VII, Rule 11 of CPC, to which the Bench of V. Ramasubramanian, J., held that in addition to the parameters provided in Order VII, Rule 11 of CPC, the Court must examine while dealing with a prayer for rejection of the counter-claim, as to whether the rejection of the counter-claim would have the effect of striking off the defence and rendering the defendant defenceless. It was also observed that at the stage of invoking Order VII, Rule 11 CPC, the Court is not concerned with the merits of the claim. But while dealing with a written statement, the Court will certainly consider the merits of the claim

As per facts of the present case, an eviction suit was filed by the respondents against the appellants. The respondents claimed that a shop was taken on lease by the father of the appellant/defendant in December, 2003 and subsequently took over the shop; and that the appellant/defendant committed default in payment of rent from April, 2015 and therefore after issuing an eviction notice dated 23-12-2015, the respondents/plaintiffs were forced to file the suit for eviction. The appellant contended that the lease was for 25 years and that therefore he was not liable to be evicted. In addition the appellant/defendant also made a counter-claim by seeking a decree for the relief of specific performance of the registration of the lease deed. The respondents/plaintiffs however made a request to the trial court to reject the counter-claim in terms of Order VII, Rule 11 of CPC which was accepted by the trial court, thereby resulting in the present second appeal.

Perusing the facts of the case and the provisions of CPC, the Bench observed that Order VIII, Rule 6-A(4) CPC clearly states that a counter-claim shall be treated as a plaint and governed by the rules applicable to plaints, therefore, the applicability of Order VII, Rule 11 CPC to counter-claims cannot be ruled out. Generally a counter-claim which consists of the defence to the plaintiffs claim and another comprising of the counter-claim and the survival of one does not depend upon the other; it may be possible to apply Order VII, Rule 11, however in cases where defence to a suit and the counter- claim are joined in such a manner as “Siamese twins”, with an inherent danger to the survival of the defence to the suit, upon the rejection of the counter-claim, the Court must do something more than what Order VII, Rule 11 generally mandates. Noting the provisions laid down under Order VIII, Rule 6-A(1) sub-rule (2), Order VIII, Rule 6-A, Order VIII Rule 6-A sub-rule (4) and Order VIII, Rule 6-C of CPC, the Court observed that a counter-claim is not exactly the same as a plaint, despite having the traits of a plaint and the scheme of Order VIII, Rules 6-A to 6-G of CPC itself recognises the fact that there could be two different scenarios, one where the counter-claim could be intertwined with the defence and another where it is capable of being prosecuted as an independent suit. [Jinendra Jewellers v. B.Venkateswara Rao, 2017 SCC OnLine Hyd 442,  decided on 15.12.2017]

Case BriefsSupreme Court

Supreme Court: The 3-judge bench of Dipak Misra, CJ and AM Khanwilkar and Dr. DY Chandrachud, JJ, explaining the principles governing the inherent powers of the High Court under Section 482 CrPC, said that while the inherent power of the High Court has a wide ambit and plenitude it has to be exercised to secure the ends of justice or to prevent an abuse of the process of any court.

The Court summarised the elaborate principles laid down by the Supreme Court in various cases. Below is the summary of the principles:

  • The invocation of the jurisdiction of the High Court to quash a First Information Report or a criminal proceeding on the ground that a settlement has been arrived at between the offender and the victim is not the same as the invocation of jurisdiction for the purpose of compounding an offence. While compounding an offence, the power of the court is governed by the provisions of Section 320 of the Code of Criminal Procedure, 1973. Also, the power to quash under Section 482 is attracted even if the offence is non-compoundable.
  • In the exercise of the power under Section 482 and while dealing with a plea that the dispute has been settled, the High Court must have due regard to the nature and gravity of the offence. Heinous and serious offences involving mental depravity or offences such as murder, rape and dacoity cannot appropriately be quashed though the victim or the family of the victim have settled the dispute. Such offences are, truly speaking, not private in nature but have a serious impact upon society. The decision to continue with the trial in such cases is founded on the overriding element of public interest in punishing persons for serious offences.
  • As distinguished from serious offences, there may be criminal cases which have an overwhelming or predominant element of a civil dispute. They stand on a distinct footing in so far as the exercise of the inherent power to quash is concerned.
  • Criminal cases involving offences which arise from commercial, financial, mercantile, partnership or similar transactions with an essentially civil flavour may in appropriate situations fall for quashing where parties have settled the dispute. In such a case, the High Court may quash the criminal proceeding if in view of the compromise between the disputants, the possibility of a conviction is remote and the continuation of a criminal proceeding would cause oppression and prejudice.
  • Economic offences involving the financial and economic well-being of the state have implications which lie beyond the domain of a mere dispute between private disputants. The High Court would be justified in declining to quash where the offender is involved in an activity akin to a financial or economic fraud or misdemeanour. The consequences of the act complained of upon the financial or economic system will weigh in the balance.

The Court, however, said that the decision as to whether a complaint or First Information Report should be quashed on the ground that the offender and victim have settled the dispute, revolves ultimately on the facts and circumstances of each case and no exhaustive elaboration of principles can be formulated. [Parbatbhai Aahir v. State of Gujarat, 2017 SCC OnLine SC 1189, decided on 04.10.2017]


Case BriefsSupreme Court

Supreme Court: Taking Suo Motu cognizance in respect of inadequacies and deficiencies in criminal trials, the bench of S.A. Bobde and L. Nageswara Rao, JJ issued notices to the Registrars General of all the High Courts, and the Chief Secretaries/the Administrators and the Advocates-General/Senior Standing Counsel of all the States/Union Territories, so that general consensus can be arrived at on the need to amend the relevant Rules of Practice/ Criminal Manuals to bring about uniform best practices across the country.

The Court also specified the below mentioned areas to be considered to achieve the said goal:

  • Discouragement of the practice of the Trial Judge leaving the recording of deposition to the clerk concerned and recording of evidence going on in more than one case in the same Court room, at the same time.
  • Recording the depositions of witnesses in typed format, using computers, in Court, to the dictation of the presiding officers, in English wherever possible, so that readable true copies are available straightaway and can be issued to both sides on the date of examination itself. Also, the deposition of each witness must be recorded dividing it into separate paragraphs assigning para numbers to facilitate easy reference to specific portions.
  • Witnesses/documents/material objects be assigned specific nomenclature and numbers.
  • Every judgment must mandatorily have a preface showing the name of the parties and an appendix showing the list of Prosecutions Witnesses, Prosecution Exhibits, Defence Witnesses, Defence Exhibits, Court witnesses, Court Exhibits and Material Objects.
  • The practice of referring to the names of the accused/witnesses and documents descriptively in the proceedings paper and judgments creates a lot of confusion. Whenever there is need to refer to them by name their rank as Accused/Witness must be shown in brackets.
  • Repetition of pleadings, evidence, and arguments in the judgments and orders of the Trial Court, Appellate and Revisional Courts must be avoided.
  • In every case file, a judgment folder to be maintained, and the first para in the appellate/revisional judgment to be numbered as the next paragraph after the last para in the impugned judgment.
  • In order to help the judges to have a clearer and surer understanding of the situs of the injuries, the Investigating Officer should obtain or procure the wound certificate/ post mortem certificate showing the front and rear sketch of the human torso showing the injuries listed in the medical documents specifically.
  • The contradictions/omissions must be properly marked.
  • The Trial Courts must be mandatorily obliged to specify in the Judgment the period of set off under Section 428 Cr.P.C specifying date and not leave it to be resolved later by jail authorities or successor presiding officers.



Case BriefsHigh Courts

Madhya Pradesh High Court: In the instant case filed for the quashment of criminal proceedings initiated against the applicants under Sections 498-A and 323 of IPC and Sections 3 and 4 of the Dowry Prohibition Act, 1961, the Bench of G.S. Ahluwalia, J. held that in cases related to demand of dowry, general and vague allegations cannot be treated as sufficient material to prosecute the other relatives of the husband who otherwise, do not have anything to do with the family affairs of the complainant. It was observed that in order to prosecute the other relatives in a dowry case there must be some specific allegations against them.

The second respondent filed a case of harassment for dowry against her husband and her in- laws. however she also implicated her husband’s near relatives i.e. elder brother-in-law and his wife etc. The present application was filed by the relatives of husband of second respondent claiming that they were falsely implicated merely because they are the near relatives of the accused husband. It was further submitted that no specific allegations have been made against them and only vague and omnibus allegations have been made in order to pressurize the accused husband. As these relatives of husband stand on different footing, therefore they should not be compelled to face the trial of Court unless any specific allegations have been made against them.

Considering the precedents laid down by the Supreme Court in the cases of Kans Raj v. State of Punjab, (2000) 5 SCC 207 and Monju Roy v. State of West Bengal, (2015) 13 SCC 693, the Court observed that it would not be correct to compel the applicants who are the near relatives of accused husband to face the agony of criminal prosecution on vague allegations under. The Court also stated that all general allegations leveled by the second respondent on the applicants appear to be indistinct with her only intention being to somehow prosecute and defame them. Therefore it is a clear case of over-implication on near relatives of the husband. Thus, charge-sheet and criminal prosecution of the applicants was quashed. [Sandeep Singh Bais v. State of M.P., 2017 SCC OnLine MP 394, decided on 9-03-2017]


Case BriefsSupreme Court

Supreme Court: In the case where the review petition preferred in 2012, was kept pending for almost four years and, thereafter, the High Court had dismissed the same by observing that an effort has been made to seek review of the main judgment as if the High Court was expected to exercise appellate jurisdiction while dealing with an application for review, the Court said that such situation is not acceptable. A reasonable period can be spent for disposal of the review, but definitely not four years.

The bench of Dipak Misra and M.M. Shantanagoudar, JJ said that an application for review, regard being had to its limited scope, has to be disposed of as expeditiously as possible. Without fixing any time limit, the Court said that it has to be the duty of the Registry of every High Court to place the matter before the concerned Judge/Bench so that the review application can be dealt with in quite promptitude. If a notice is required to be issued to the opposite party in the application for review, a specific date can be given on which day the matter can be dealt with in accordance with law.

The Court also said that it is the duty and obligation of a litigant to file a review and not to keep it defective and of the counsel filing an application for review to cure or remove the defects at the earliest. The prescription of limitation for filing an application for review has its own sanctity. The Registry of the High Courts has a duty to place the matter before the Judge/Bench with defects so that there can be pre-emptory orders for removal of defects. An adroit method cannot be adopted to file an application for review and wait till its rejection and, thereafter, challenge the orders in the special leave petition and take specious and mercurial plea asserting that delay had occurred because the petitioner was prosecuting the application for review.

Taking note of the fact that the petitioner had submitted that there is a delay of 1700 days in preferring the special leave petition against the principal order as he was prosecuting the remedy of review before the High Court, the Court requested the High Courts not to keep the applications for review pending as that is likely to delay the matter in every court and also embolden the likes of the petitioner to take a stand intelligently depicting the same in the application for condonation of delay. The Court said that there may be absence of diligence on the part of the litigant, but the Registry of the High Courts is required to be vigilant. Procrastination of litigation in this manner is nothing but a subterfuge taken recourse to in a manner that can epitomize “cleverness” in its conventional sense. [Sasi v. Aravindakshan Nair, SPECIAL LEAVE PETITION (CIVIL) NO. OF 2017, decided on 03.03.2017]

Case BriefsSupreme Court

Supreme Court: Taking note of the problem of delay in disposal of trials, the bench of A.K. Goel and U.U. Lalit, JJ said that ways and means have to be found out by constant thinking and monitoring. It is the constitutional responsibility of the State to provide necessary infrastructure and of the High Courts to monitor the functioning of subordinate courts to ensure timely disposal of cases. Presiding Officer of a court cannot rest in the state of helplessness.

The Court said that an appropriate action plan should be prepared at the level of the High Court and thereafter at the level of each and every individual judicial officer. Hence, the below mentioned directions should be issued by the High Courts to the subordinate courts in order to resolve the menace of pending trails causing hardships to the undertrial prisoners:

  • Bail applications be disposed of normally within one week;
  • Magisterial trials, where accused are in custody, be normally concluded within six months and sessions trials where accused are in custody be normally concluded within two years;
  • Efforts be made to dispose of all cases which are five years old by the end of the year;
  • As a supplement to Section 436A CrPC, but consistent with the spirit thereof, if an undertrial has completed period of custody in excess of the sentence likely to be awarded if conviction is recorded such undertrial must be released on personal bond. Such an assessment must be made by the concerned trial courts from time to time;
  • The above timelines may be the touchstone for assessment of judicial performance in annual confidential reports.

The Court also requested the High Courts to ensure that bail applications filed before them are decided as far as possible within one month and criminal appeals where accused are in custody for more than five years are concluded at the earliest. Apart from that the High Courts may prepare, issue and monitor appropriate action plans for the subordinate courts and monitor steps for speedy investigation and trials on administrative and judicial side from time to time.

The High Courts may take stringent measures in the light of judgment of this Court in Ex. Captain Harish Uppal v. Union of India, (2003) 2 SCC 45, if found necessary in case of obstruction of Court proceedings by uncalled for strikes/abstaining of work by lawyers or frequent suspension of court work.

The Bench noticed that there are obstructions at every level in enforcement of right of speedy trial – vested interests or unscrupulous elements try to delay the proceedings, lack of infrastructure, etc. Inspite of all odds, determined efforts are required at every level for success of the mission. [Hussain v. Union of India, 2017 SCC OnLine SC 235, decided on 09.03.2017]

Case BriefsSupreme Court

Supreme Court: With a view to provide an alternative to seeking transfer of proceedings on account of inability of a party to contest proceedings at a place away from their ordinary residence on the ground that if proceedings are not transferred it will result in denial of justice, the bench of A.K. Goel and U.U. Lalit, Jj held that in matrimonial or custody matters or in proceedings between parties to a marriage or arising out of disputes between parties to a marriage, wherever the defendants/respondents are located outside the jurisdiction of the court, the court where proceedings are instituted, may examine whether it is in the interest of justice to incorporate any safeguards for ensuring that summoning of defendant/respondent does not result in denial of justice.

Availability of video conferencing facility; availability of legal aid service; deposit of cost for travel, lodging and boarding in terms of Order XXV CPC; E-mail address/phone number, if any, at which litigant from out station may communicate, were some of the safeguards suggested by the Court.

The Bench noticed that transfer is not always a solution acceptable to both the parties. It may be appropriate that available technology of video conferencing is used where both the parties have equal difficulty and there is no place which is convenient to both the parties. The Court said that wherever the facility of video conferencing is available, it ought to be fully utilized and all the High Courts should issue appropriate administrative instructions to regulate the use of video conferencing for certain category of cases.

The Bench further added that to combat the issue of ignorance about availability of suitable legal services, Legal Aid Committee of every district should make available selected panel of advocates whose discipline and quality can be suitably regulated and who are ready to provide legal aid at a specified fee. Such panels should be notified on the websites of the District Legal Services Authorities/State Legal Services Authorities/National Legal Services Authority. This may enhance access to justice consistent with Article 39A of the Constitution.

It was also said that every district court must have at least one e-mail ID. Administrative instructions for directions can be issued to permit the litigants to access the court, especially when litigant is located outside the local jurisdiction of the Court. A designated officer/manager of a district court may suitably respond to such e-mail in the manner permitted as per the administrative instructions. Similarly, a manager/ information officer in every district court may be accessible on a notified telephone during notified hours as per the instructions. [Krishna Veni Nagam v. Harish Nagam, 2017 SCC OnLine SC 236, decided on 09.03.2017]

Case BriefsHigh Courts

Delhi High Court: The Court dealt with an important question of law in criminal proceedings in a case, where the process under Sections 82 and 83 CrPC was issued against the accused. While the statement of process server under Section 82 CrPC was recorded by the CMM, the process couldn’t be completed under Section 83 for want of any property in the name of petitioner. Section 82 deals with proclaiming a person as proclaimed offender if he/she is absconding while Section 83 provides for attachment of the property of the person.

In the meanwhile before the petitioner could be declared as proclaimed offender, Investigation Officer filed a supplementary charge-sheet dated 31.08.2013 under Sections 384/387/419/420/467/468/471/474/174A/506/120B/34 IPC. Thereafter, his anticipatory bail application was accepted by Add. Sessions Judge, New Delhi. The grievance of the petitioner is that the Investigating Officer had no power to add Section 174-A IPC in the supplementary charge-sheet prior to declaring the petitioner a proclaimed offender by the trial court. The petitioner was declared as proclaimed offender after the supplementary charge-sheet was filed against him including the charge of Section 174-A IPC which provides for imprisonment of a person for non-appearance in response to a proclamation under Section 82  CrPC.

So, in the present petition the vital question before the Court was whether Section 174-A IPC could be added by the Investigating Officer before declaring the petitioner to be a proclaimed offender. To this question, the Court responded in negation. The Court held that the IO had added the charge of Section 174-A IPC much before the date when the order of his proclamation as proclaimed offender had been issued and said that he had no power to do so. Justice I.S. Mehta observed that the bare reading of the section was making it amply clear that proceeding under Section 174-A could only be started only after the person is declared as proclaimed offender and thus, allowed the petition. [Deepak Kumar@ Deepak Saha v. State, 2017 SCC OnLine Del 6920, decided on 07.02.2017]


Case BriefsHigh Courts

Delhi High Court: The Divisional Bench of Badar Durez and Ashutosh Kumar, JJ. while disposing of an appeal gave relief to party whose suit was dismissed at the admission stage  by invoking the provisions of Order XIII-A of the Code of Civil Procedure, 1908. It was held by the Court that appeal was dismissed at its admission stage without issuing summons and without any application for summary judgement in the absence of which the Judge himself cannot invoke Order XIII-A  CPC.

In the present case the appellants had filled an appeal  against the defendants for permanent injunction restraining them from infringement of trademarks and also claiming damages of up to Rs 1 Crore . The appeal was dismissed by the  court by invoking Rule 3 of Order XIII-A of CPC, Which according to the learned Single Judge could be invoked by the court if it thinks there is no real prospect of the plaintiff succeeding on the claim or no prospect of the defendant successfully defending the claim, in such cases the court in order to not  take upon itself the burden of new cases without following any procedure for issuing summary judgement, can dismiss an appeal.

The Divisional Bench differed in view and held that this power can be exercised by the court only after summons have been issued and thereafter application is filed for summary judgement. The Court also found that the Single Judge had based his conclusion of denying the appeal on facts which he had observed personally, the Divisional Bench disregarded this method and observed that the Judge could not become witness in a case before him that too without giving opportunity of rebuttal to the appellants. [Bright Enterprises Private Ltd. v. MJ Bizcraft LLP, 2017 SCC OnLine Del 6394 , decided on 4.01.2016]

Case BriefsHigh Courts

Karnataka High Court: While hearing bail petition of an accused who was demanding bail on ground of lack of evidence, the Single-Judge Bench of L. Narayana Swamy, J. denied the bail to the accused. The said person was being tried for his act of facilitating a bomb blast by transporting explosives and providing his home for a conspiracy meeting for the blast. The Court held that the accused person should not be given bail only on basis of lack of evidence, as filing of charge-sheet against the person who is being prosecuted for such serious charges as in under Sections 121-A, 123, 307 of IPC is enough to show that the accused is involved in a serious offence related to causing disharmony within the public.

It was contended by the counsel for the petitioner that he was being framed only because he was named by one of the accused of the bomb blast and no other evidence has been found against him. The public prosecutor argued that explosive material was found on instance of this accused person and also the petitioner has a history of being a habitual offender.

The Court observed that charges against the petitioner are grave in nature, which is accentuated by filing of the charge-sheet against the petitioner, and the fact that the group with which the accused persons in the present case are associated, is a banned group by the Central authorities and the United Nations Organisation for their sole aim to disrupt public peace. Therefore the charges are such, which if proven will result in life imprisonment or death penalty. Considering the anti-national character of the alleged offences against the petitioner, the Court refused to grant bail to the petitioner.  [Zulfikar Ali v. State of Karnataka, 2017 SCC OnLine Kar 2, decided on 5/01/2017]


Case BriefsHigh Courts

Kerala High Court: While deciding upon the issue that whether the lawyer who is appearing for a party can be removed at the request of the opposite party, the Division Bench of A.M. Shaffique and K.Ramakrishnan, JJ., observed that two major conditions must be satisfied in order to direct the removal of a lawyer appearing for a party, they are namely; that the direction to relinquish the ‘vakalath’ by the counsel appearing should not jeopardize the interest of the party for whom he appears, and secondly the examination of the Advocate as a witness is indispensable and that the disengagement would not jeopardize the interest of the party for whom he appears.

In the instant case, the petitioner cited the terms of Rule 6 of the Bar Council of India Rules, and prayed before the Court to prohibit the respondent’s Advocate to appear on behalf of his party for the case because as per Rule 6 if any member thereof is related to the Advocate or comes within the relationships mentioned in the Rule, then such Advocate shall be forbidden to appear on behalf of his party. The petitioner further contended that he intendeds to examine the Advocate of the respondent as a witness.

Perusing the contentions, the Court observed that the petitioner had not mentioned any list citing the respondent Advocate as a witness, and moreover if the counsel is directed to relinquish the ‘vakalath’ it will jeopardize the interest of the respondent. [Kabeer v. Nazrin, 2017 SCC OnLine Ker 41,  decided on 05.01.2017]