Case BriefsForeign Courts

Court of Appeal of the Democratic Socialist Republic of Sri Lanka: The Division Bench of Prasantha De Silva and K.K.A.V. Swarnadhipathi, JJ. dismissed an appeal which was filed against the dismissal of the revision application citing no exceptional circumstances to invoke the revisionary jurisdiction.

The 2nd Party Respondent-Petitioner-Appellants (Appellants) had filed the case within 3 months, as per a settlement. Five years after filing the said action and when it reached the stage of the trial, it was revealed that the subject matter of the action is a co-owned land. Thereafter, the Appellants had withdrawn the case reserving the right to file a fresh action. 1st Party Respondent-Respondent-Respondents (Respondents) filed a motion stating that the 2nd Party Respondent-Petitioner-Appellants have withdrawn the case and hence permit the Respondents to put up the boundary fence in terms of the settlement. Primary Court Judge allowed the application of the Respondents to put up the boundary fence on 09-07-1997.

On 16-07-1997, Appellants had filed a motion stating that a partition case has been filed in respect of the land dispute and therefore to vacate the above Order. On 15-09-1997, Magistrate stayed the above order. On 28-05-2003, 2nd Party Respondents moved to withdraw the said case with liberty to file a fresh action and the District Judge allowed the said application. On 14-08-2013, Respondents filed a motion in the Primary Court informing that Respondents have withdrawn the said partition action and therefore to allow the Respondents to put up the boundary fence on the land in dispute as per the terms of the settlement. Accordingly, the learned Primary Court Judge allowed the application. On 15-11-2013 the 2nd Party Respondent-Petitioner- Appellants aggrieved by the order filed an application for revision. The High Court judge dismissed the said application on the basis that the Appellants had not disclosed any exceptional circumstances to invoke the revisionary jurisdiction of the Court. Thus, an instant appeal was filed.

The Court observed that Appellants had withdrawn the said partition case on 28-05-2003 with liberty to file a fresh action. The Appellants had not taken any interest in filing a fresh partition action until the Respondent moved the Court to execute the writ, which was after 10 years from the date of withdrawal of the said partition case. Thus, it is imperative to note that the Appellants have not exercised their legal rights over the disputed property and had not acted with due diligence.

Thus, according to the maxim ‘vigilantibus non dormientibus aequitas subvenit’, the Appellants had slept over their rights. The law helps the vigilant and not those who sleep over their rights.

The Court while dismissing the appeal held that the High Court Judge has correctly decided that no exceptional circumstances have been established by the Appellants to invoke the revisionary jurisdiction of the High Court.[Abdul Rahman Lebbe Abdul Hakeem v. A. A. Sithy Zulfiya, CA (PHC) 137 of 2017, decided on 17-05-2022]


Lal Wijenayake with S. Jayaratne A.A.L for the Petitioner-Appellant.

N.M Shaheed A.A.L with Piyumi Seneviratne A.A.L for the 1st Respondent- Respondent-Respondent of the 1st Party and Substituted Respondent-Respondent


Suchita Shukla, Editorial Assistant ahs reported this brief.

Case BriefsHigh Courts

Delhi High Court: Expressing that, the revisional jurisdiction is not meant to test the waters of what might happen in the trial, Chandra Dhari Singh, J., held that at the stage of framing of charge, the judge is merely required to overview the evidence in order to find out whether or not there is sufficient ground for proceeding against the accused.

A revision petition was filed seeking setting aside of the order on charge passed by the Special Judge, CBI Court and for quashing criminal proceedings against the petitioner. As per the impugned order, the petitioner had been charged under Sections 420 and 120-B of the Penal Code, 1860 read with Section 13(1)(d) and 13(2) of the Prevention of Corruption Act, 1988.

Factual Background

It was alleged that, the then DG, Organizing Committee (OC), Commonwealth Games, 2010 and other officers of the OC entered into a criminal conspiracy with the Director of M/s Premier Brands Private Limited (PBPL), with Chairman M/s Compact Disc India Limited and others.

The OC officers scrapped the process of initial Request for Proposal (RFP) on flimsy grounds after receipt of the proposal of PBPL, to extend undue favour to PBPL by appointing the said company as Officer Master Licensee for Merchandising and Online Retail Concessionaire for CWG 2010 against a minimum royalty amount of Rs 7.05 crores.

After earning a huge amount from the CWG band properties, PBPL did not pay anything to the OC and the cheque amounting Rs 3.525 Crores were dishonoured by the Bank on instructions from PBPL, which caused pecuniary advantage to Suresh Kumar Seenghal and PBPL and corresponding to the Government Exchequer.

Analysis, Law and Decision

  • Revisional Jurisdiction and Framing of Charge

In the Supreme Court decision of Asian Resurfacing of Road Agency (P) Ltd. v. CBI, (2018) 16 SCC 299, it was held that an order framing charge can be interfered under the revisional jurisdiction.

Further, Supreme Court recently in Sanjay Kumar Rai v. State of U.P., 2021 SCC OnLine SC 367, reiterated the ruling pronounced in the above Supreme Court decision as well as the original position of law as laid down in Madhu Limaye v. State of Maharashtra, (1977) 4 SCC 551.

The issue is well settled and the controversy qua revisional jurisdiction is set to rest with the actual position of law being that the order of framing charge or that discharge is neither interlocutory nor final and hence does not attract the bar of Section 397(2) of the Code.

Hence, High Court is competent to entertain a revision petition against such orders.

  • Framing of Charges & Order on Charge

Bombay High Court’s decision of Samadhan Baburao Khakare v. State of Maharashtra, 1995 SCC OnLine Bom 72, highlighted the objective and importance of a Charge in a criminal trial.

The Court concerned with the framing of charges has to merely see whether the commission of offense can be a possibility from the evidence on record or not.

The charge is merely an indication to the accused about the offense for which he is being tried for.

For the above observation, Court referred to the Supreme Court decision in Esher Singh v. State of A.P., (2004) 11 SCC 585.

Framing of charge is a manifestation of the principle of Fair Trial, by giving sufficient notice along with all particulars to the accused being charged so as to enable him to prepare his defence.

In the Supreme Court decision of State of Rajasthan v. Ashok Kumar Kashyap, 2021 SCC OnLine SC 314, it was held that the at the stage of framing of the charge and/or considering the discharge application, a mini trial is not permissible.

The Court observed that the position of law that emerges is that at the stage of discharge/framing of charge, the Judge is merely required to shift the evidence in order to find out whether or not there is sufficient ground for proceeding against the accused.

  • Scope of Revisional Jurisdiction – qua Order of Charge

In the case of State of Rajasthan v. Fatehkaran Mehdu, (2017) 3 SCC 198, the Supreme Court has elucidated on the scope of the interference permissible under Section 397 with regard to the framing of a charge.

Recently, in the case of State of Rajasthan v. Ashok Kumar Kashyap, 2021 SCC OnLine SC 314, the Supreme Court held that the evaluation of evidence on merits is beyond the scope of revisional jurisdiction of the High Courts, at the stage of considering the application for discharge.

Hence, under the provisions of Section 397/401 of Code, the Revisional Court has to only consider the correctness, legality or propriety of any finding inter se an order and as to the regularity of the proceedings of any inferior court.

  • Section 482 of the Code

High Court has inherent power to act ex debito justitiae – to do that real and substantial justice for the administration of which alone it exists or to prevent abuse of the process of the Court.

The Section does not confer any new power, rather it only declares that the High Court possesses inherent powers for the purposes specified in the Section.

Hence, the jurisdiction under Section 482 should be exercised sparingly, with circumspection and in rarest of rare cases.

In the present matter, the petitioner failed to make out a case for exercise of the revisional jurisdiction since there was no patent error in the impugned order.

The beauty of procedural law lies in the stages and remedies available during the course of a criminal proceeding.

Conclusion

High Court held that every effort should be made to eradicate Corruption as at the end of the day, it is society and the downtrodden who bear the pangs of the corrupt acts of a few.

Bench added that if the lower court finds that evidence against an accused is prima facie sufficient for framing of charge, then it has the jurisdiction to proceed with the same concerned accused must face trial.

The revision petition was devoid of merit and hence dismissed. [V.K Verma v. CBI, 2022 SCC OnLine Del 1192, decided on 29-4-2022]


Advocates before the Court:

For the Petitioner:

Mr. Ajit Kumar Sinha, Senior Advocate with Mr. Srijan Sinha, Ms. Parul Dhurvey and Mr. Naveen Soni, Advocates.

For the Respondent:

Mr. Prasanta Varma, SPP

Case BriefsHigh Courts

Delhi High Court: While addressing a matter with regard to a wife’s right to maintenance Chandra Dhari Singh, J., expressed that, only continuous and repeated acts of adultery and/or cohabitation in adultery would attract the rigours of the provision under Section 125(4) CrPC.

Factual Matrix


A criminal petition was filed seeking to set aside the decision by Family Court.

Instant petition had been filed against the order of the Additional Principal Judge filed by the respondent under Section 125 of the CrPC, whereby the Additional Principal Judge granted maintenance.

Petitioner impugned the order dated 31-7-2020, which enhanced the maintenance amount.

Analysis, Law and Decision


In the present matter, the maintenance order was challenged on the grounds of cruelty, adultery, desertion without reason as well as the fact that the wife was capable enough of maintaining herself.

Various Supreme Court and High Court decisions have established the position of payment of maintenance holding that the ground of cruelty does not disentitle the wife of her right to maintenance. In fact, in cases where divorce is granted on the ground of cruelty, Courts have awarded permanent alimony to the wife.

Hence,

Ground of cruelty and harassment do no stand ground for non-payment of the maintenance amount.

The Bench expressed that the codified law and judgments of various High Courts settle the position with respect to the bar of adultery for grant of maintenance in favour of the wife.

Law mandates that in order to extract the provision under Section 125(4) CrPC the husband has to establish with definite evidence that the wife has been living in adultery, and one or occasion acts of adultery committed in isolation would not amount o ‘living in adultery’.

The Bombay High Court decision in Pandurang Bakru Nathe v. Leela Pandurang Nathe, 1997 SCC OnLine Bom 264 made an observation with regard to the provision under Section 125(4) CrPC was relied on by the Court.

Another decision of the Kerala High Court in Sandha v. Narayanan, 1999 SCC OnLine Ker 64 was also relied on.

High Court found that the law as interpreted by the High Courts, evinces that only continuous and repeated acts of adultery and/or cohabitation in adultery would attract the rigours of the provision under Section 125(4) CrPC.

The petitioner could not establish prima facie that the respondent was living in adultery, hence the respondent was not entitled to any maintenance.

Concluding the matter, Court declined to allow the instant petition, since the petitioner had failed to show any ground for challenging the order under the revisional jurisdiction of this Court.

Therefore, Bench did not find any cogent reason to interfere with the impugned order and judgment. [Pradeep Kumar Sharma v. Deepika Sharma, 2022 SCC OnLine Del 1035, decided on 13-4-2022]


Advocates before the Court:

For the Petitioner:

Annu Narula, Vishal Singh, Ravi Kumar and Shiva Chauhan, Advocates

For the Respondent:

Shamikh, Advocate

Case BriefsHigh Courts

Delhi High Court: Chandra Dhari Singh, J., decided a maintenance case wherein the marital status of the parties was the crux of the matter and expressed that,

“…there is no straight jacket formula for judging the validity of the marriage between the parties.”

A petition was filed under Section 397/401 of the Code of Criminal Procedure, 1908 seeking setting aside of the decision passed by the Family Court whereby the petitioner was directed to pay maintenance of Rs 4,000 to respondent 1 and Rs 3,000 to respondents 2 and 3 till attaining the age of maturity.

Petitioner’s counsel argued that he was never married to respondent 1 and the trial court committed a grave error in granting maintenance in favour of respondents towards whom he had no obligation of maintenance.

Analysis, Law and Decision

High Court noted that the Magistrate has a discretionary power that is to be exercised while appreciating the evidence and material on record when awarding maintenance to the parties.

Essentials of a Valid Marriage

The Bench observed that there is no straight-jacket formula for judging the validity of the marriage between the parties. Every case has to be judged on its own merits depending upon the conditions provided under the statutory or personal law for solemnization of marriage.

The legal standard for determining the marital status of the parties in maintenance proceedings has been set out by the Supreme Court in the case of Santosh v. Naresh Pal, (1998) 8 SCC 447.

Further, a Coordinate Bench of this Court had also dealt with the issue of marital status in maintenance matter in the case of Nasir Khan v. Sarphina George, 2019 SCC OnLine Del 8467, wherein the Petitioner husband impugned the order granting maintenance in the revisional jurisdiction. It was contended that the Trial Court erred in passing the order on maintenance since the respondent was not her legally wedded wife. Further, he argued that no witnesses were produced to establish the factum of marriage between the parties. Court negated the contentions of the Petitioner mainly on the ground that the parties to the marriage were living together for several years and this raised a reasonable presumption in favour of the accused.

 Several other decisions were referred for the above-stated.

This Court observed elaborated stating that the Court in proceedings under Section 125 CrPC was required to merely decide the quantum of maintenance based on the prima facie evidence regarding the marital status of the parties.

The task of deciding the marital status of the parties has been conferred with the Civil Courts and the Court under maintenance proceedings under Section 125 of the Cr.P.C. may not usurp the jurisdiction of the Civil Courts.

Therefore, the litmus test for determining the marital status of the parties in maintenance proceedings was prima facie satisfaction of the Magistrate concerned and nothing more.

Section 125 CrPC and Revisional Jurisdiction

 Established Law:

The Revisional Court need not re-assess or re-appreciate the material and evidence on record before the Trial Court. A Revisional Court is to limit its jurisdiction for adjudicating upon the material illegalities and irregularities apparent in the impugned orders.

The conclusive determination of marital status in cases of maintenance under Section 125 of the CrPC, shall, therefore, be declared by the Civil Court and the Revisional Court shall restrain itself to the questions before it without reopening the evidence.

In the Supreme Court decision of Pyla Mutyalamma v. Pyla Suri Demudu, (2011) 12 SCC 189, the Court had set out the standards of revisional jurisdiction to be exercised by the High Courts in maintenance proceedings under Section 125 of the CrPC.

Decision

High Court noted that respondents produced 10 witnesses during evidence to establish their relationship with the petitioner. Court stated that the statements of the witnesses/neighbours, clearly imply that the parties were living together for a long time and were known to be husband and wife to the people residing in their neighbourhood.

Adding to the above, documentary evidence was also produced.

Production of the ration card as a documentary proof of marital relation between the parties met the requirement of prima facie evidence in establishing the matrimonial relationship between the parties.

With regard to the DNA test, Court explained that after more than 10 years of adjudication into the question of subsistence of a marital relationship between the Petitioner and Respondent 1, it was not necessary to go into the legitimacy of the birth of the children, when prima facie proof was already produced in their favour.

Therefore, High Court found no substantial ground for invoking the revisional jurisdiction to interfere with the impugned judgment. [Mohd Shakeel v. Sabia Begum, 2022 SCC OnLine Del 271, decided on 28-1-2022]


Advocates before the Court:

For the petitioner: Salim Malik and Shavana, Advocates

For the respondent: Aditya Gaur, Advocate

Case BriefsSupreme Court

Supreme Court: The bench of MR Shah* and Sanjiv Khanna, JJ has answered the following three important questions on the revisional jurisdiction of the High Court:

Whether the High Court in exercise of the revisional jurisdiction under Section 401 Cr.P.C. can set aside the order of acquittal and convicting the accused by converting the finding of acquittal into one of conviction?

The Court held that sub-section (3) of Section 401 Cr.P.C. prohibits/bars the High Court to convert a finding of acquittal into one of conviction. Though the High Court has revisional power to examine whether there is manifest error of law or procedure etc., however, after giving its own findings on the findings recorded by the court acquitting the accused and after setting aside the order of acquittal, the High Court has to remit the matter to the trial Court and/or the first appellate Court, as the case may be.

Referring to the ruling in K. Chinnaswamy Reddy v. State of Andhra Pradesh, AIR 1962 SC 1788, the Court noticed that if the order of acquittal has been passed by the trial Court, the High Court may remit the matter to the trial Court and even direct retrial. However, if the order of acquittal is passed by the first appellate court, in that case, the High Court has two options available, (i) to remit the matter to the first appellate Court to rehear the appeal; or (ii) in an appropriate case remit the matter to the trial Court for retrial and in such a situation the procedure in decision in K. Chinnaswamy Reddy can be followed.

In K. Chinnaswamy, it was held that,

“It will depend upon the facts of each case whether the High Court would order the appeal court to rehear the appeal or would order a retrial by the trial court. Where, as in this case, the entire evidence is there and it was the appeal court which ruled out the evidence that had been admitted by the trial court, the proper course in our opinion is to send back the appeal for rehearing to the appeal court. In such a case the order of the trial court would stand subject to the decision of the appeal court on rehearing. In the present case it is not disputed that the entire evidence has been led and the only defect is that the appeal court wrongly ruled out evidence which was admitted by the trial court. In the circumstances we are of opinion that the proper course is to direct the appeal court to rehear the appeal and either maintain the conviction after taking into consideration the evidence which was ruled out by it previously or to acquit the accused if that is the just course to take. We should like to add that the appeal court when it rehears the appeal should not be influenced by any observations of the High Court on the appreciation of the evidence and should bring to bear its own mind on the evidence after taking into consideration that part of the evidence which was considered inadmissible previously by it.”

In a case where the victim has a right of appeal against the order of acquittal, now as provided under Section 372 Cr.P.C and the victim has not availed such a remedy and has not preferred the appeal, whether the revision application is required to be entertained at the instance of a party/victim instead of preferring an appeal?

After the amendment in Section 372 Cr.P.C. after 2009 and insertion of proviso to Section 372 Cr.P.C., a victim has a statutory right of appeal against the order of acquittal. Therefore, no revision shall be entertained at the instance of the victim against the order of acquittal in a case where no appeal is preferred and the victim is to be relegated to file an appeal. Even the same would be in the interest of the victim himself/herself as while exercising the revisional jurisdiction, the scope would be very limited, however, while exercising the appellate jurisdiction, the appellate Court would have a wider jurisdiction than the revisional jurisdiction. Similarly, in a case where an order of acquittal is passed in any case instituted upon complaint, the complainant (other than victim) can prefer an appeal against the order of acquittal as provided under sub-section (4) of Section 378 Cr.P.C., subject to the grant of special leave to appeal by the High Court.

As observed in Mallikarjun Kodagali v. State of Karnataka, (2019) 2 SCC 752, so far as the victim is concerned, the victim has not to pray for grant of special leave to appeal, as the victim has a statutory right of appeal under Section 372 proviso and the proviso to Section 372 does not stipulate any condition of obtaining special leave to appeal like subsection (4) of Section 378 Cr.P.C. in the case of a complainant and in a case where an order of acquittal is passed in any case instituted upon complaint. The right provided to the victim to prefer an appeal against the order of acquittal is an absolute right.

Hence, in a case where the victim and/or the complainant, as the case may be, has not preferred and/or availed the remedy of appeal against the order of acquittal as provided under Section 372 Cr.P.C. or Section 378(4), as the case may be, the revision application against the order of acquittal at the instance of the victim or the complainant, as the case may be, shall not be entertained and the victim or the complainant, as the case may be, shall be relegated to prefer the appeal as provided under Section 372 or Section 378(4), as the case may be.

While exercising the powers under sub-section (5) of Section 401 Cr.P.C. treating the revision application as petition of appeal and deal with the same accordingly, the High Court is required to pass a judicial order?

The High Court may treat the application for revision as petition of appeal and deal with the same accordingly is concerned, firstly the High Court has to pass a judicial order to treat the application for revision as petition of appeal. The High Court has to pass a judicial order because sub-section (5) of Section 401 Cr.P.C. provides that if the High Court is satisfied that such revision application was made under the erroneous belief that no appeal lies thereto and that it is necessary in the interests of justice so to do. While treating with the application for revision as petition of appeal and deal with the same accordingly, the High Court has to record the satisfaction as provided under sub-section (5) of Section 401 Cr.P.C.

Therefore, where under the Cr.P.C. an appeal lies, but an application for revision has been made to the High Court by any person, the High Court has jurisdiction to treat the application for revision as a petition of appeal and deal with the same accordingly as per sub-section (5) of Section 401 Cr.P.C., however, subject to the High Court being satisfied that such an application was made under the erroneous belief that no appeal lies thereto and that it is necessary in the interests of justice so to do and for that purpose the High Court has to pass a judicial order, may be a formal order, to treat the application for revision as a petition of appeal and deal with the same accordingly.

[Joseph Stephen v. Santhanasamy, 2022 SCC OnLine SC 90, decided on 25.01.2022]


*Judgment by: Justice MR Shah


Counsels

For Accused: Senior Advocate S. Nagamuthu

For State: Advocate Dr. Joseph Aristotle

Case BriefsSupreme Court

Supreme Court: The Division Bench comprising of Dhananjaya Y. Chandrachud and M.R. Shah*, JJ., recently held in an interesting case that evaluation of evidence on merits is not permissible at the stage of considering the application for discharge and the same is beyond the scope of revisional jurisdiction of the High Courts. The Bench explained,

“At the stage of framing of the charge and/or considering the discharge application, the mini trial is not permissible.”

The High Court of Rajsthan, in exercise of its revisional jurisdiction had quashed the order passed by the Special Judge, Prevention of Corruption Act. The High Court had set aside the charges framed by the Special Judge against the respondent-accused for the offence under Section 7 of the Prevention of Corruption Act  and consequently had discharged the accused of the alleged offence.

Factual Matrix of the Case

The respondent-accused was serving as a Patwari, when it was alleged by the complainant that  that for the purpose of issuing Domicile Certificate and OBC Certificate of his son, but the Patwari in lieu of endorsing his report demanded a bribe of Rs.2,800. Prsuant to the said complaint an investigation was conducted and the accused was chargesheeted on reaching to the findings that there was a prima facie case made out under Section 7 of the PC Act.

Feeling aggrieved and dissatisfied the accused preferred revision application before the High Court whereby the High Court had discharged the accused.

It was submitted by the state that the High Court had committed a grave error in evaluating the transcript/evidence on merits which at the stage of considering the application for discharge is not permissible and is beyond the scope of the exercise of the revisional jurisdiction. It was further submitted that the accused had been charged for the offence under Section 7 of the PC Act and even an attempt is sufficient to attract the offence under Section 7 of the PC Act.

Stand taken by the Respondent

The defense raised by the respondent-accused was that, he had refused to issue residence certificate for Rajsthan and caste certificate in favor of complainant having come to know about the complaint being the permanent resident of Agra and that the complainant wanted a false residence certificate and caste certificate illegally. It was submitted that in fact the respondent-accused gave a report rejecting the request of the complainant and there was nothing pending before the accused and the decision regarding his application was already taken.

The respondent submitted that at the time of conversation two persons were present, (1) the complainant – Jai Kishore; and (2) Devi Singh. And the so far as the complainant was concerned, the accused categorically refused to accept any bribe. However, it was alleged that  the appellant had tried to confuse and mislead the Court by mixing the conversation of Devi Singh regarding his dues of Rs.4,850-/ to the bank against which he had paid Rs.2,000/- and the remaining amount of Rs.2,850/- was due to the bank. Thus, neither there was any acceptance nor there was any demand of bribe and the High Court has rightly discharged the accused. The reliance was placed on Dilawar Balu Kurane v. State of Maharashtra, (2002) 2 SCC 135, it had been held that, by and large if two views are equally possible and the Judge is satisfied that the evidence produced before him will give rise to some suspicion but not grave suspicion against the accused, he will be fully justified to discharge the accused.

Findings of the Court

At the stage of Section 227, the Judge has merely to sift the evidence in order to find out whether or not there is sufficient ground for proceeding against the accused. The Bench opined that the High Court had exceeded in its jurisdiction and had acted beyond the scope of Section 227/239 Cr.P.C. While discharging the accused, the High Court had gone into the merits of the case and had considered whether on the basis of the material on record, the accused was likely to be convicted or not. For the aforesaid,

“The High Court has considered in detail the transcript of the conversation between the complainant and the accused which exercise at this stage to consider the discharge application and/or framing of the charge is not permissible at all.”

At the stage of framing of the charge and/or considering the discharge application, the mini trial is not permissible. At this stage, it is to be noted that even as per Section 7 of the PC Act, even an attempt constitutes an offence. Therefore, the High Court has erred and/or exceeded in virtually holding a mini trial at the stage of discharge application.

Lastly, the Bench stated, defence on merits is not to be considered at the stage of framing of the charge and/or at the stage of discharge application. In view of the above, the impugned judgment and order was held unsustainable in law and the same was quashed and set aside. The order passed by the Special Judge of framing charge against the accused under Section 7 of the PC Act was restored.

[State of Rajsthan v. Ashok Kumar Kashyap, 2021 SCC OnLine SC 314, decided on 13-04-2021]


Kamini Sharma, Editorial Assistant has put this report together 

*Judgment by: Justice M. R. Shah

Appearance before the Court by:

For the State: Adv. Vishal Meghwal

Jharkhand High Court
Case BriefsHigh Courts

Jharkhand High Court: Deepak Roshan, J., modified the sentence of the trial court to the extent in lieu of compensation which should be paid to the victim-wife.

In the pertinent case, the petitioner moved to this Court against the judgment passed by the Additional Sessions Judge-I, whereby the appeal preferred by the petitioners was dismissed and the judgment of conviction and order of sentence whereby the petitioners were found guilty for offence punishable under Section 498-A of Penal Code, 1860 and they were convicted and sentenced to undergo RI for 18 months and fine of Rs 1000 each has been affirmed.

The counsel for the petitioners, J.P. Pandey, submitted that there are contradictions in prosecution witnesses and the allegations made in the FIR does not corroborate with the evidence of the informant hence, the petitioners deserve to be acquitted. Further, the petitioners have remained in custody for about one month as such some leniency may be granted by this Court.

The Court held that it cannot interfere with the findings of the courts below due to the limited scope of the revisional jurisdiction, therefore, the conviction against the petitioners are confirmed. With respect to the sentence, the Court observed that the incident is of the year 2004 and 15 years have elapsed and the petitioners have suffered the rigors of litigation for the last 15 years and also remained in custody for 36 days. The court was of the view that it may not be proper for this Court to send the accused persons back to prison and found that it is expedient in the interest of justice that the sentence should be modified in lieu of compensation which should be paid to the victim-wife. Hence, the Court modified the impugned order to the extent that the petitioners are sentenced to undergo for the period already undergone subject to the payment of fine of Rs 5000 each failing which they shall serve the rest of the sentence as directed by the trial court. [Santosh Mandal v. State of Jharkhand, 2019 SCC OnLine Jhar 1453, decided on 18-10-2019]

Jharkhand High Court
Case BriefsHigh Courts

Jharkhand High Court: The Bench of Deepak Roshan, J. dismissed a revision application seeking to set aside the lower courts’ order acquitting the respondents in a case filed under Sections 448, 323, 427, 506 of Penal Code, 1860.

A complaint was filed by the applicant herein, against the respondents alleging that the latter had assaulted and abused her and her husband. The learned Chief Judicial Magistrate acquitted the accused persons, holding that the allegations made in the complaint petition were not proved. This was affirmed by the learned Sessions Judge who found that “there is huge discrepancy in the statement of witnesses with the averments made in the complaint petition regarding the manner of occurrence.” Aggrieved by judgments of the lower courts, the applicant filed the instant revision application before this Court and contended that the impugned judgments passed by the lower courts were not at all sustainable as they suffered from illegality and infirmity.

The Court in its order after giving due cognizance to all the facts and documents held that the applicant had failed to make out a case so as to warrant any interference from the Court. It observed that “It is only in glaring cases of injustice resulting from some violation of fundamental principles of law by the trial court, that the High Court is empowered to set aside the order.” It was further opined that “the petitioner has failed to establish any glaring injustice resulting from violation of fundamental principles of law. There is no illegality in the impugned order to approach this Court for appreciation of evidence and the finding which is not at all perverse.” The Court, thus, dismissed the application.[Geeta Devi v. State of Jharkhand, 2019 SCC OnLine Jhar 455, decided on 03-05-2019]

National Consumer Disputes Redressal Commission
Case BriefsTribunals/Commissions/Regulatory Bodies

National Consumer Disputes Redressal Commission (NCDRC): A Division Member Bench of S.M. Kantikar (Presiding Member) and  Dinesh Singh (Member), dismissed a revision petition filed against the order of Haryana State Consumer Disputes Redressal Commission, whereby the order of the district forum was affirmed.

The main issue that arose before the Commission was whether the instant dispute required interference by the National Commission under Section 21(b) of the Consumer Protection Act (COPRA).

The Commission observed that the respondent  1 had entered into an agreement with the appellant wherein the appellant had promised for providing various amenities like Club House, Internal roads, installation of fire fighting system and arrangement of sewerage and garbage etc. Further, the maintenance charge was to be calculated by taking the area as 1830 sq. ft, however, the appellant charged excess amount of maintenance charges from the respondent 1. Also, the amenities promised by the appellant were not provided to the respondent 1. The Commission rejected the contention of the petitioner that the respondent 1 did not fall under the category of “consumer” as per the provisions of COPRA. In the decision of Rubi (Chandra) Dutta v. United India Insurance Co. Ltd., (2011) 11 SCC 269, wherein it was held that the National Commission while deciding a matter under Section 21 of the Act, should not interfere with the concurrent finding of fact recorded in the judgment impugned before it.

The Commission held that there is a drastic increase in the number of problems from the construction industry where consumers are fooled by builders or developers. The petitioner failed to provide evidence such as the Commissioner’s Report, Engineer’s report etc. to prove that the amenities as per the agreement were provided to the respondent 1 and it had also failed to justify the excessive money which was charged by it from the respondent 1 in the form of maintenance charges. Finally, the Commission held that to exercise the revisional jurisdiction under Section 21(b) of the COPRA it must show that there was a jurisdictional error or a legal principle was ignored or miscarriage of justice. The petition was dismissed and the order of state commission was upheld.[Make Wave Sea Resort (P) Ltd. v. L.R. Chowdhary,2018 SCC OnLine NCDRC 389, order dated 13-11-2018]

 

National Consumer Disputes Redressal Commission
Case BriefsTribunals/Commissions/Regulatory Bodies

National Consumer Disputes Redressal Commission (NCDRC): A Division Bench of S.M. Kantikar, Dinesh Singh, Members, dismissed a revision petition filed against the order of the State Commission whereby the appeal of appellants was dismissed on the ground of merits as well as delay.

The main issue that arose before the Commission was whether the appeal was maintainable under Section 21(b) of the Consumer Protection Act, 1986 (COPRA).

The Commission observed that the order passed by the state commission was well-appraised and well-reasoned. The state commission did not find just and reasonable cause for the delay in filing the appeal and the same was written in the order in a proper manner. The appellant had caused an unreasonable delay of 221 days in filing the appeal before the state commission. Further, the order of the state commission also states that the appellants did not approach the forum with clean hands. The Commission also observed that in order to exercise revisional jurisdiction under Section 21(b) of the COPRA, there must be a jurisdictional error or legal principle ignored or material irregularity in the order of the lower forum.

The Commission held that in the instant case the order passed by the state commission did not suffer from any form of irregularity as required under Section 21(b) of the COPRA. Resultantly, no interference by the Commission was required and hence the revision petition was dismissed by the Commission. [Agarwal Packers & Movers DRS Group v. Dibeyendu Pal, 2018 SCC OnLine NCDRC 418, order dated 01-11-2018]

Case BriefsHigh Courts

Himachal Pradesh High Court: A Single Judge Bench comprising of Tarlok Singh Chauhan, J., decided a criminal revision petition filed under Sections 397 and 401 IPC, wherein the order of conviction and sentence passed by the trial court against the petitioners was upheld.

The petitioners were convicted and sentenced by the trial court under Sections 323, 325 and 342 IPC. Having failed in an appeal before the appellate court against the order of the trial court, the petitioners filed the instant revision petition. The petitioners raised threefold contention before the High Court; and the Court based its decision of upholding the order of trial court on discussing the following three points-

1. Delay in lodging FIR: The Court referring to various Supreme Court decisions observed that it is more than settled that delay in lodging of FIR by itself cannot be a ground to doubt the prosecution case and discarding the delay in lodging FIR would put the Court on its guard to search if any plausible explanation has been offered for the delay and if offered whether it is satisfactory or not. There can be no hard and fast rule that any delay in lodging FIR would automatically render the prosecution case doubtful.

2. No independent witness: On this point, the Court observed that it is more than settled that a witness is normally to be considered as independent unless he springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to implicate him falsely. Ordinarily a close relative would be the last to screen the real culprits and falsely implicate an innocent person.

3. Contradictions in witnesses’ statement: The Court held it to be well settled that in every case there was bound to be some exaggerations, embellishments or improvements, which at time could even be deliberate. There was bound to be slight exaggeration but then the Court is required to sift the chaff from the grain and find out the truth from the testimonies of the witnesses. Total repulsion of evidence is unnecessary. The evidence is to be considered from the point of view of trustworthiness.

In light of the above discussion, and considering the fact finding by the courts below, the High Court concluded that the judgment and order passed by the courts below could not be termed as perverse so as to require any interference of the High Court in the instant revision petition. Accordingly, the petition was dismissed. [Madan Kumar v. State of Himachal Pradesh,  2018 SCC OnLine HP 256, decided on 19.3.2018]

Case BriefsSupreme Court

Supreme Court: The case before the bench comprising of A.K. Sikri & R.K Agarwal,JJ was whether the Court of Sessions is empowered to take the cognizance of offence when a similar application to this effect was rejected by the Judicial Magistrate while committing the case to Sessions Court, taking cognizance of offence only under Section 306 IPC and specifically refusing to take cognizance of offence under Sections 304-B and 498-A IPC.

The Court observed that normally, such a course of action would not be permissible. But referring to the present case, the court held that the power of Magistrate in refusing to take cognizance against the appellants is revisable by a superior Court, the Court of Sessions in this case, either on the revision petition that can be filed by the aggrieved party or even suo moto by the revisional Court itself. Also, it was not a case wherein the opportunity was not given to the other party to file a reply at the sessions Court against the order of Cognizance and the Court also heard their arguments. Thus, Court can take the cognizance of the matter and the appeal is dismissed. [Balveer Singh. v. State of Rajasthan, 2016 SCC OnLine SC 481, decided on 10.05.2016]

Case BriefsHigh Courts

Bombay High Court: While deciding the appeal preferred against the judgement of the Sessions Court, which denied the maintenance granted by the Judicial Magistrate First Class, Karad,  M.S. Sonak J. modified the order of the Judicial Magistrate First Class and directed the respondent to pay  maintenance on monthly basis to the applicant with effect from 1 January 2015 thereby setting aside the order of the Sessions Court.

In the present case Mr. Sawant, learned counsel for the petitioner contended that the evidence on record does establish that the applicant was harassed and therefore compelled to live away from the respondent and the Additional Sessions Judge exceeded the bounds of revisional jurisdiction in interfering with the well reasoned decision of the Judicial Magistrate First Class. On the contrary counsel for the respondent Ms. Bhosale submitted that the Additional Sessions Judge, upon proper appreciation of the material on record has rightly held that the Applicant has abandoned the respondent and his children without reasonable cause.

The Court accepting the contentions of the applicant that the Additional Sessions Judge exceeded his jurisdiction and virtually reassessed the material on record purporting to exercise the appellate jurisdiction, when in fact, revisional jurisdiction was invoked and substituted its own findings in place of those recorded by the JMFC directed the respondent to pay maintenance amount of Rs. 600/- per month to the applicant along with a lump-sum amount of 50,000/- towards maintenance from the date of application till 1 January 2015, and to clear the arrears between 1 January 2015 to the date of this judgement within a month. [ Sou. Vaishali A. Waghmare v. Anil P. Waghmare, decided on December 10, 2015]