Case BriefsSupreme Court

   

Supreme Court: In an appeal against the Karnataka High Court's reversal of acquittal of 2 out of the 22 accused acquitted by the Sessions Court in a murder case, the bench of V. Ramasubramanian*and Indira Banerjee, JJ has reversed the High Court's verdict observing that there were glaring contradictions between the testimony of the witnesses.

In this case all the 22 accused armed with deadly weapons formed themselves into an unlawful assembly and committed trespass by entering into the house of the deceased and committed his murder, in furtherance of a common object. The Sessions Court acquitted all 22 accused including the appellants, however, the High Court convicted the appellants, by observing that there was consistency in the evidence of eyewitnesses with regard to their participation in the commission of the offence and the Trial Court erroneously acquitted them, when there was sufficient material on record to hold them guilty.

The Court observed that the above findings of the High Court appear to be illogical as the primary charge of the prosecution was that all the 22 accused, formed themselves into an unlawful assembly with the common object of committing the murder of the deceased and that all of them being members of the unlawful assembly were armed with deadly weapons and that they committed the offence of rioting, trespass and murder.

The Court observed that:

“We do not know how, in the facts and circumstances of the case, the conviction of only 2 out of the 22 accused can be sustained and that too only for the offence under Section 302 when the allegation of unlawful assembly, common object, trespass, rioting etc. are held not proved against all of them”.

Moreover, the State has not come up with any appeal against the acquittal of all the other accused nor was there any explanation as to why there were two First Information Reports.

The Court took note of the ruling in Arvind Kumar v. State of Rajasthan, 2021 SCC Online SC 1099 wherein the court held that “the principle that when a witness deposes falsehood, the evidence in its entirety has to be eschewed may not have strict application to the criminal jurisprudence in our country”, and thus viewed that the High Court was right that the evidence of eyewitnesses cannot be rejected by invoking the theory of ‘falsus in uno falsus in omnibus', as this principle may not have unadulterated application to criminal jurisprudence. However, when there are glaring contradictions between the testimony of these two witnesses on the type of material object used and even on the role of one accused, the very foundation of the case of the prosecution stood shaken.

The Court observed that the High Court should have come up with stronger and cogent reasons than what has been recorded as the law on the scope of Section 378 of the Code of Criminal Procedure (CrPC), is too well settled.

Placing reliance on Ravi Sharma v. Government of NCT of Delhi, 2022 SCC Online SC 859 the Court viewed that the impugned judgment of the High Court is not in accordance with the law traced in this decision, hence, the conviction of the appellants cannot be sustained.

[Ramabora v. State of Karnataka, 2022 SCC OnLine SC 996 , decided on 10.08.2022]

*Judgment by: Justice V. Ramasubramanian

Madras High Court
Case BriefsHigh Courts

   

Madras High Court: K Murali Shankar, J. quashed the proceedings initiated against an advocate who happens to be the counsel of the accused in a case sub-judice in a Court of law. The Court reprimanded the practice of implicating advocates as accused, as in the given case the advocate accompanied the Advocate Commissioner to the disputed suit property which forms the subject matter of a sub-judice case and implicated for offences such as trespass, theft and criminal intimidation.

The petitioner is a practicing Advocate in the Courts at Dindigul for the past 29 years and he is the Counsel on record for the accused Balaguru and Leelavathy in title dispute sub-judice in a Court of law. The case of the prosecution is that when the defacto complainant and his family members went to Trichendur, all the five accused broke open the door of the defacto complainant’s house, trespassed into the house and had stolen Rs.1, 00,000/- cash, one laptop and some documents, that when the defacto complainant and his wife returned to their home from Trichendur, they were prevented from entering into their house and that the accused Leelavathi and Balaguru had caused criminal intimidation.

F.I.R was registered for the offences under Sections 147, 454, 380, 341 and 506(i) Penal Code, 1860 (‘IPC'), against 5 persons including the petitioner, charge sheet was filed and non-bailable warrant (‘NBW') was issued against the petitioner after showing him to be an absconding accused. Thus, an instant petition was filed by the petitioner under Section 482 Criminal Procedure Code (CrPC) for quashing the proceedings.

Based on alteration report filed by Sub Inspector before the Court, the Court observed that the alleged complaint of stealing cash, laptop and other documents was not true, that there was no stealing of such articles and that the defacto complainant with an evil intention to implicate the accused with theft case has raised false allegations.

The Court observed that as per the Advocate Commissioner’s interim report, the petitioner had visited the disputed property along with the Advocate Commissioner after 08.00 PM, on the occurrence day. It was noted that the nature of work of an Advocate is not only limited to the Courts, and they are expected to visit the property in dispute or the scene of occurrence to have first-hand information and direct such information about the property in dispute or the occurrence scene. Moreover, it is their bounden duty to accompany the Advocate Commissioner appointed in the cases for inspecting the disputed property and for other purposes.

The Court noted that a new trend has been emerging in implicating the Advocates as accused along with their clients with ulterior motive of achieving the intended result quickly or immediately. Thus, the Court held “permitting the prosecution to proceed against the petitioner is totally unwarranted and the same would amount to be an abuse of process of the law.”

[P Velumani v. The State, Crl O P (MD) No. 3653 of 2019, decided on 07-07-2022]


Advocates who appeared in this case :

Mr. M. Sheik Abdullah, Advocate, for the Petitioner;

Mr. K. Sanjai Gandhi, Government Advocate, for the Respondents(Crl. Side).


*Arunima Bose, Editorial Assistant has reported this brief.

Tripura High Court
Case BriefsHigh Courts

Tripura High Court: Arindam Lodh, J. partly allowed an appeal which was filed against the judgment and order of conviction whereby and whereunder the appellant has been found guilty for committing an offence punishable under Section 8 of the POCSO Act and sentenced him to suffer Rigorous Imprisonment for 3 years for the said offence and also found guilty under Section 448 of IPC and sentenced to suffer Rigorous Imprisonment for 1 year for the said offence.

Mother of the victim had lodged the complaint stating that the accused entered into the dwelling house of the complainant and molested the minor daughter of the complainant and tried to rape on her. On hearing the hue and cry of the victim the complainant appeared there and, thereafter, the accused fled away. During the course of investigation, the investigating officer recorded the statements of the victim as well as other witnesses, thereafter charge sheet was submitted against the accused.

The accused was examined under Section 313 CrPC to which he denied all the incriminating circumstances surfaced against him in the evidence on record. Special judge after the hearing convicted and sentenced the accused as afore stated. Thus, the instant appeal.

The Court after perusal of the records found that offence under Section 8 of the POCSO Act has not been established beyond reasonable doubt. The prosecution witnesses including the victim has not specifically stated anything that there was any intention of the accused to molest her. It was stated that the accused touched her hand and in this case ingredients of Section 8 have not been fulfilled and conviction and sentence under Section 8 of the POCSO Act was quashed and set aside.

Court however noted that the accused had trespassed the house of the complainant and further opined that appropriate and proportionate sentence should be imposed upon the accused-appellant. The Court modified the sentence to the extent that the accused-appellant shall pay a fine of Rs 10,000 (Rupees ten thousand) to the victim/complainant, in default of which, the accused-appellant shall suffer simple imprisonment for a period of six months.[Sanju Tanti v. State of Tripura, 2022 SCC OnLine Tri 242, decided on 07-04-2022]


For the Appellant(s) : Mr S.S. Datta

For the Respondent(s) : Mr R. Dutta, P.P.


Suchita Shukla, Editorial Assistant has reported this brief.

Case BriefsSupreme Court

Supreme Court: The bench of MR Shah* and AS Bopanna, JJ has held that merely because someone is the Chairman/Managing Director/Executive Director/Deputy General Manager/Planner & Executor, automatically they cannot be held vicariously liable, unless there are specific allegations and averments against them with respect to their individual role in a criminal case.

Factual Background

The Court was dealing with a case wherein it was alleged that all the accused had conspired with common intention to lay the pipeline beneath the schedule properties belonging to the complainant without any lawful authority and right whatsoever.

It is pertinent to note that original accused no.1 was a company incorporated under the Companies Act, original accused nos. 2 & 3 being Chairman and Managing Director of Accused no.1- company and accused no.4 was arrayed as an accused being Deputy General Manager (Civil & Env.) of accused no.1. Accused No.5 was the Planner and Executor of the project work of accused no.1. Likewise, accused no. 6 was also a company incorporated under the Companies Act, accused nos. 7 & 8 were arrayed as an accused being Chairman and Executive Director respectively of accused no.6. Accused no.9 was the Site Supervisor of accused no.6 and accused no.10 was the Sub-Contractor under accused no.6 and accused nos. 11 to 13 were the employees of accused no.10.

Accused No.1 intended to lay water pipeline by the side of Mangalore-Bajpe Old Airport Road abutting the schedule properties. Accused No.2 on behalf of accused No.1 appointed accused No.6 as a contractor for execution of the said project of laying the water pipe line. Accused No.6 in turn authorized accused Nos. 7 and 8 to execute and oversee the said work. They in turn had appointed accused No.9 as site supervisor and the accused No.10 being the sub-contractor engaged accused Nos. 11 to 13 as labourers. Accused Nos. 4 and 5 were entrusted the work of supervision and overseeing the pipeline works carried out by accused Nos. 6, 7 and 8 through accused Nos. 9 and 10 to 13. Accused Nos. 6 to 8 had put into service heavy machineries and excavators and their vehicles for carrying out the work. It was contended that accused Nos. 2 to 5 and 7 to 13 had conspired with common intention to lay the pipeline beneath the schedule properties belonging to the complainant without any lawful authority and right whatsoever. In furtherance thereof, they had trespassed over the schedule properties 3 and demolished the compound wall which was having the height of 7 feet and foundation of 2 feet to a distance of 500 metres. They had cut and destroyed 100 valuable trees and laid pipeline beneath the schedule properties.

It was contended that

“… the accused have committed the act of mischief and waste and caused pecuniary loss of more than Rs.27 lakhs to the complainant. All the accused are jointly and severally liable to make good the loss to the complainant.”

Analysis

The bench noticed that except the bald statement that accused nos. 2 to 5 and 7 & 8 have conspired with common intention to lay the pipeline within the schedule properties belonging to the complainant, without any lawful authority and right whatsoever and in furtherance they have committed to trespass into the schedule properties of the complainant and demolished the compound wall, there were no other allegations that at that time they were present.

There were no further allegations that at the command of A2 to A5 and A7 & A8, the demolition of the compound wall has taken place. All of them are merely arrayed as an accused as Chairman, Managing Director, Deputy General Manager (Civil & Env.), Planner & Executor, Chairman and Executive Director respectively.

“Therefore, as such, in absence of any specific allegations and the specific role attributed to them, the learned Magistrate was not justified in issuing process against accused nos. 1 to 8 for the offences punishable 12 under Sections 427, 447, 506 and 120B read with Section 34 IPC.”

The Court held that issuing summons/process by the Court is a very serious matter and therefore unless there are specific allegations and the role attributed to each accused more than the bald statement, the Magistrate ought not to have issued the process.

Here are some authorities on the power of the magistrate of summoning of an accused in a criminal case:

Sunil Bharti Mittal v. Central Bureau of Investigation, (2015) 4 SCC 609

“No doubt, a corporate entity is an artificial person which acts through its officers, Directors, Managing Director, Chairman, etc. If such a company commits an offence involving mens rea, it would normally be the intent and action of that individual who would act on behalf of the company. It would be more so, when the criminal act is that of conspiracy. However, at the same time, it is the cardinal principle of criminal jurisprudence that there is no vicarious liability unless the statute specifically provides so.

(…)

When the company is the offender, vicarious liability of the Directors cannot be imputed automatically, in the absence of any statutory provision to this effect.”

Read more: Order issuing summons to Sunil Mittal and others in 2G Scam case by Special Judge, CBI, set aside

GHCL Employees Stock Option Trust v. India Infoline Limited, (2013) 4 SCC 505

In the order issuing summons, the learned Magistrate has to record his satisfaction about a prima facie case against the accused who are Managing Director, the Company Secretary and the Directors of the Company and the role played by them in their respective capacities which is sine qua non for initiating criminal proceedings against them.

Maksud Saiyed v. State of Gujarat, (2008) 5 SCC 668

“13. Where a jurisdiction is exercised on a complaint petition filed in terms of Section 156(3) or Section 200 of the Code of Criminal Procedure, the Magistrate is required to apply his mind. The Penal Code does not contain any provision for attaching vicarious liability on the part of the Managing Director or the Directors of the Company when the accused is the company. The learned Magistrate failed to pose unto himself the correct question viz. as to whether the complaint petition, even if given face value and taken to be correct in its entirety, would lead to the conclusion that the respondents herein were personally liable for any offence. The Bank is a body corporate. Vicarious liability of the Managing Director and Director would arise provided any provision exists in that behalf in the statute. Statutes indisputably must contain provision fixing such vicarious liabilities. Even for the said purpose, it is obligatory on the part of the complainant to make requisite allegations which would attract the provisions constituting vicarious liability.”

Pepsi Foods Ltd. v. Special Judicial Magistrate, (1998) 5 SCC 749

“28. Summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. It is not that the complainant has to bring only two witnesses to support his allegations in the complaint to have the criminal law set into motion. The order of the 14 Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. He has to examine the nature of allegations made in the complaint and the evidence both oral and documentary in support thereof and would that be sufficient for the complainant to succeed in bringing charge home to the accused. It is not that the Magistrate is a silent spectator at the time of recording of preliminary evidence before summoning of the accused. The Magistrate has to carefully scrutinise the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations or otherwise and then examine if any offence is prima facie committed by all or any of the accused.”

[Ravindranatha Bajpe v. Mangalore Special Economic Zone Ltd, 2021 SCC OnLine SC 806, decided on 27.09.2021]

_________________________________________________________________________

Counsels:

For original complainant: Advocate Shailesh Madiyal

For accused persons: Advocates Nishanth Patil and P.P. Hegde


*Judgment by: Justice MR Shah

Know Thy Judge | Justice M. R. Shah

Case BriefsForeign Courts

Federal Court of Malaysia: A Full Bench of Richard Malanjum, Ahmad Maarop, Zaharah Ibrahim, David Wong Dak Wah, Ramly Ali, Azahar Mohamed, Alizatul Khair Osman Khairuddin, Mohd Zawawi Salleh and Idrus Harun, JJ. concluded that vesting of judicial powers in Shariah Advisory Council (‘SAC’) does not violate the doctrine of separation of powers.

The fundamental question put forward before the court was that whether Sections 56 and 57 of the Central Bank of Malaysia Act, 2009 were in breach of the Federal Constitution and unconstitutional by reason of contravening Part IX of the Federal Constitution for the said sections having the effect of vesting judicial power in the SAC. The main issue was whether the impugned provisions violated the doctrine of separation of powers.

The Court referring to Semenyih Jaya Sdn Bhd v. Pentadbir Tanah Daerah Hulu Langat, (2017) 4 AMR 123 observed that the doctrine of separation of powers was sacrosanct in the constitutional framework and was a part of the basic structure of the Federal Constitution but at the same time the doctrine also recognized that, wherever necessary, one branch of the government should be allowed to exercise part of the powers of another branch and the delegation of power by one branch of the government to another. Reliance was also placed on Tan Sri Abdul Khalid Ibrahim v. Bank Islam Malaysia Berhad, (2010) 4 CLJ 388 wherein it was explained that it was necessary to designate the SAC to ascertain the acceptable Shariah position.

The 2009 Act which established the SAC of CBM as the authority and reference point for the ascertainment of Islamic law for the purposes of Islamic banking and financial business was held by the Court as a proper constitutional mechanism to assist the courts in applying the correct Islamic laws to resolve Islamic financial disputes and upholding Shariah complaint on such matters, as permitted by the Federal Constitution.

The Court referred to Lord Reed’s remarks at the 32nd Sultan Azlan Shah Law 28 Lecture, 2018, where he said, “Neither the separation of powers, nor the principle of judicial independence, means that the courts have to be isolated from the other branches of the State”.

In view of above, the Court concluded that the impugned provisions did not trespass or intrude onto the judicial power and hence did not violate the doctrine of separation of powers.[JRI Resources SDN BHD v. Kuwait Finance House (Malaysia) Berhad,  2019 SCC OnLine MYFC 1, decided on 19-04-2019]