Case BriefsHigh Courts

Patna High Court: Rajendra Kumar Mishra, J. disposed of the writ petition saying that the final decision regarding the petitioner’s claim rested with the respondent authorities.

A special leave application was filed on behalf of the appellant under Section 378(4) of the Code of Criminal Procedure, seeking leave to file an appeal against the judgment passed by the Additional Chief Judicial Magistrate wherein he had acquitted the respondent from the charges under Sections 323 and 420 of the Penal Code, 1860.

The mother of the appellant had filed a complaint case in the Court of SDJM., Sheohar at Sitamarhi. The mother of the appellant, aged about 85 years used to live with her son Daya Shankar Mishra (Appellant) and her other son, Ashutosh Mishra (Respondent) used to live separately. In absence of Daya Shankar Mishra, the respondent took her to Sheohar for treatment on 25-01-2008 and 28-01-2008, but in the garb of such treatment, he managed to take her thumb impression and signature on papers saying that her thumb impression and signature were required for her treatment. The respondent got the property transferred to his name by way of the thumb impression and signatures that he had obtained, and when he was questioned by the appellant he threatened her in return.

The learned ACJM, Sheohar at Sitamarhi acquitted the respondent on the grounds that the prosecution failed to prove the charges under Sections 323 and 420 of the Penal Code.

The Panchnama clearly indicated that the said plot of land was transferred in the name of the respondent and the trial Court committed an error in not considering the evidence.

The Court held that the Trial Court concluded that neither the complainant had filed any suit for cancellation of the sale deed nor any competent jurisdiction has declared the sale deed null and void and that the complainant had not denied giving the thumb impression and signature on the sale deed, rather, her claim was that her thumb impression and signature obtained on papers were converted into a sale deed. The Court instead failed to make an attempt to compare the thumb impression and signature of the sale deed with the signature and thumb impression of the register maintained in the office of Sub-Registrar. The Court found no reason to allow this Special Leave to Appeal.

In view of the above-noted facts, the instant application was dismissed accordingly.[Daya Shankar Mishra v. State of Bihar, 2019 SCC OnLine Pat 1429, decided on 08-08-2019]

Case BriefsHigh Courts

Punjab and Haryana High Court: Ajay Tewari J. passed an order of the bail as the applicant was already granted with bail by the trial court.

An application under Section 439 of Code of Criminal Procedure was made for the grant of the anticipatory bail for the offence registered under Sections 420, 465, 471, 467, 120-B the Penal Code, 1860.

The facts of the case were that the complainant had come into the contact of Sujoy Biswas who assured her a job in Go Air Company and on that pretext, the petitioner took a lot of money from her and misappropriated it and they handed over fake appointment letters. However, when the complainant approached Go Air, she came to know that the document was fake.

S.R. Hooda, counsel for the petitioner argued that no role was attributed to him in the present case and that the applicant was already in custody for five months.

Amarjit Kaur Khurana, counsel for the State argued that the petitioner was an integral part of the whole scam scene and prayed for the dismissal of the application. It was further submitted that Sujoy Biswas has been granted conditional bail and the condition was that he will create a fixed deposit of Rs 1 lakhs and will keep it with the Trial Court.

High Court opined that as the trial court has passed an order of the bail, it was appropriate to grant the petitioner subject to some condition and thus passed an order of the interim bail to the satisfaction of the trial court.[Manoj Kumar v. State of Punjab, 2019 SCC OnLine P&H 1006, decided on 31-05-2019]

Case BriefsHigh Courts

Madhya Pradesh High Court: S.K. Awasthi, J.  dismissed the petition on the ground that trial court and not Special Court are competent to take cognizance when offences were made under the Penal Code, 1860.

A petition was made under Section 397 read with Section 401 of Code of Criminal Procedure, 1973 against the order passed by Additional Sessions Judge.

Facts of the case were that Mukesh and Radheyshyam Mandwani and applicant Sunil were the directors of the company, having an immovable property at Indore. The applicant tried to grab the property without calling any meeting of the company and had also forged the resignation of the complainant and indicted his real brother as director of the company. An FIR was lodged against the applicant for offences under Sections 420, 467, 468, 471 and 120-B of the Penal Code, 1860 and charge sheet was filed. A discharge application on the ground that the trial court was not competent to take the cognizance and Special Court should take the cognizance was rejected by the trial court. Hence, the revision petition was made.

Vijay Asudani, counsel for the applicant argued that a special court can try offence other than offence under the provisions of Companies Act with which the accused may under the CrPC be charged. It was further submitted that the trial court failed to appreciate that the Complainant was the ex-director and shareholder of the company and the fact that the non calling of the meeting, preparation of forged resignation are offences under the Companies Act, 2013 and thus only special court were competent to take cognizance of the offence and thus impugned order should be set aside and applicant should be discharged from the charges made under the Penal Code.

Counsel for the complainant submitted that in order to gain the control over assets of the company and to deceive, betray and cheat the complainant made the complaint under the Penal Code. It was further submitted that the jurisdiction of the Special Court is limited to the offences punishable under the Companies Act, 2013 and not under the Penal Code or any offences committed under any other law. Thus, prayed for the dismissal of the revision petition.

The Court opined that provision of Section 436 (2) of the Companies Act, 2013 also provide that while trying an offence under the Companies Act, a Special Court may also try an offence other than an offence under this Act with which the accused may, under the Code of Criminal Procedure, 1973 be charged at the same trial. In this case, the police registered the offence punishable under the Penal Code and not under Companies Act, 2013. It was held that no criminal trial has been initiated against the applicants for any of the offence which is punishable under the provision of Companies Act, therefore, in absence of any offence punishable under the Companies Act, Special Court is not having jurisdiction to try the case which is punishable under the Penal Code and court of Indore has territorial jurisdiction to try the case for the commission of offence punishable under Sections 420, 467, 468, 471 and 120-B of IPC. Thus, the revision petition was dismissed. [Sunil Mandwani v. State of M.P., 2019 SCC OnLine MP 1248, decided on 27-06-2019]

Case BriefsForeign Courts

South Africa High Court, Free State Division, Bloemfontein: A Division Bench of Mathebula and Chesiwe, JJ. dismissed the present appeal against convictions and sentences.

On 23-11-2012, the deceased and his friends arrived at Mahlomola’s Tavern, Welkom to have drinks but they were not allowed entry. After persuading the in-charge they bought beers. The moment they started to leave, an altercation erupted and the second appellant stabbed at the back of the deceased, Mokhele Thys Thebeladi. This led to the other two appellants also stabbing the deceased.

Counsel for the appellants, L. Tshabalala and P.P. Mile denied any involvement with the events leading to the death of the deceased. All the three had their own defenses; the first left the tavern before the fight started, the second saw him lying on the ground and the third neither participated nor saw anything.

The trial court (Regional Magistrate, Welkom) convicted all the appellants with murder under Section 51(2) of Act 105 of 1997 and sentenced to fifteen years imprisonment. The second appellant was convicted with a further charge of assault with intent to do grievous bodily harm and a further sentence of three years.

Aggrieved with both conviction and sentence the appellant appealed.

The Court observed that the findings of a trial court are credible and anyone even a Court of Appeal with a contrary opinion should support with sufficient reasons. S. v. Chabalala, 2003 (1) SACR 134 (SCA) a case based on ‘guilt to be proved beyond reasonable doubt’ was cited. It laid down that “The correct approach is to weigh up all elements which point towards the guilt of the accused against all those which are indicative of his innocence… to decide whether the balance weighs so heavily in favour of the State as to exclude reasonable doubt about the accused’s guilt.”

In addition, according to the post-mortem report, the deceased sustained multiple stab wounds, caused by the three appellants. The trial court took the right approach as stated in the case and concluded rightly that this was an attack. The trial court has not faulted in any way whatsoever. Therefore, the convictions and sentences are not to be altered.[Andile Cofa v. State, Case number: A132/2017, decided on 22-03-2019]

Bail Application
Case BriefsHigh Courts

Himachal Pradesh High Court: Chander Bhusan Barowalia, J. dismissed a petition finding no merit in the appeal as when two reasonable conclusions are possible on the basis of the evidence, the appellate court should not disturb the finding of acquittal recorded by the trial Court.

In the present matter, the appellants alleged that they had found a person carrying a plastic can in his right hand. The person on seeing the police party got perplexed and on suspicion, he was arrested. During his personal search, he was found in conscious and exclusive possession of one plastic can, containing three bottles of illicit liquor. After separating one nip as a sample, both the nips as well as sample were sealed. The prosecution, in order to prove its case, examined as many as six witnesses. Statement of the accused was recorded under Section 313 CrPC, wherein he denied the prosecution case and claimed innocence. Additional Advocates General, Shiv Pal Manhas and P.K Bhatti with Raju Ram Rahi, Deputy Advocate General argued that the prosecution has proved the guilt of the accused beyond the shadow of reasonable doubt.

While H.K.S. Thakur, counsel for the respondent argued that the alleged quantity of three bottles of illicit liquor stated to be recovered from the respondent is a concocted story, as no independent witness was associated by the police. And even the Investigating Officer in his statement has specifically stated that he did not find it appropriate to associate any independent witness.

The Court after considering the facts and circumstances and the arguments advanced found that “when independent witnesses were available on spot the Investigating Officer should have associated them. However, the Investigating Officer simply stated that he does not find it proper to associate independent witnesses. The non joining of the independent prosecution witnesses when they were available, makes the prosecution case doubtful with respect to recovery of three bottles of illicit liquor”. The Court further relied on K. Prakashan v. P.K. Surenderan, (2008) 1 SCC 258 and T. Subramanian v. State of T.N., (2006) 1 SCC 401. Further, it took into consideration the principles culled out in Chandrappa v. State of Karnataka, (2007) 4 SCC 415 that, “If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court” amongst other things.[State of Himachal Pradesh v. Joban Dass, 2019 SCC OnLine HP 646, decided on 21-05-2019]

Case BriefsHigh Courts

Allahabad High Court: A Division Bench of Ramesh Sinha and Dinesh Kumar Singh-I, JJ. allowed the appeal filed by a couple accused of murder, against the trial court’s order sentencing them to death for the said offence; and set aside the death reference made by the trial court.

In the present case, the appellant along with his wife Shakila was accused of murdering his two brothers-in-law and mother-in-law by hacking their neck, in a factory where he was a watchman. Charges were made out against the appellant and his wife under Sections 302, 34 and 201 of the Penal Code, 1860. The trial court convicted them on the basis that only appellant had access to the building as he lived inside it, and account of a child witness aged 6 years (son of the deceased lady) was taken into consideration.

Learned counsel for the appellant argued that the child witness’ testimony could not be taken into consideration as he had deposed that he was wrapped in a blanket and thrown in another room by his sister Shakila. The child’s presence at the crime scene could not be confirmed as had he been present over there, he too would have been killed by the accused-appellant but that was not the case. Moreover, the panchayatnama of three deceased was conducted as of unknown persons and had the child witness been present at the place of occurrence then definitely he would have disclosed the two male deceased to be his real brothers and female to be his mother. Also, it could not be said that the factory in which the appellant was a guard and where he was living along with his wife, was in his exclusive possession and not accessible to anyone else because one of the keys of the factory was with the owner of the factory. Therefore, the factory was accessible to others as well.

On the other hand, learned Additional Government Advocate submitted that accused-appellant has bad antecedents as he was already convicted and sentenced by the trial court for murdering his earlier wife. He had absconded from Lucknow jail and was living in Kanpur while working in the said factory as Chaukidar. He had enticed the daughter of deceased lady and when Shakila’s brothers along with their mother came to take her away from accused, a quarrel took place between the parties and Shakila’s mother and two brothers were murdered by accused. Shakila’s younger brother was an eye witness of the incident and had deposed that he saw the accused killing the three deceased with knife and his sister Shakila was facilitating in the crime.

The Court noted the aforestated facts and arguments and opined as below:

Section 118 Evidence Act – Reliability on testimony of child witness:

It was observed that the Investigating Officer had failed to show the place of occurrence and the place from where the child witness was witnessing the incident as the incident had taken place in two parts – body of mother of child witness was found on the second floor of the factory whereas the dead body of his two deceased brothers, was found on the first floor of factory. It was observed that it was highly doubtful that the child, who had stated that he was wrapped and thrown in a room by his sister, could not have seen the murder of the two deceased which had taken place on the first floor. Thus, his evidence could not be said to be wholly reliable for the conviction and sentence of two appellants.

The Court relied on Digamber Vaishnav v. State of Chhattisgarh, (2019) 4 SCC 522 where the Supreme Court while discussing Section 118 of the Evidence Act, 1872 held that “evidence of a child witness must be evaluated carefully as the child may be swayed by what others tell him and he is an easy prey to tutoring. Therefore, the evidence of a child witness must find adequate corroboration before it can be relied upon.”

Presumption under Section 106 Evidence Act:

It was opined that the prosecution admitted that one key of the factory was with accused and another key was with the owner of the factory. Hence, the presumption under Section 106 of the Evidence Act could not be drawn against the accused as he was not in his exclusive possession of the factory.

Proof beyond a reasonable doubt versus suspicion:

Further, the Court opined that it may not be possible that two deceased men aged about 25 years and 35 years and the deceased lady aged about 55 years could have been overpowered and killed single-handedly in such a gruesome manner by the accused who was just aged about 45 years. The possibility of the incident having occurred in some other manner by more persons could not be completely ruled out. It was noted that suspicion, howsoever strong, could not take the place of proof. Reliance in this regard was placed on Sujit Biswas v. State of Assam, (2013) 12 SCC 406 where the Court examined the distinction between ‘proof beyond reasonable doubt’ and ‘suspicion’.

Establishing guilt on the basis of circumstantial evidence:

Lastly, the Court relied on Digamber Vaishnav case and opined that in criminal cases where guilt of the accused is sought to be established on the basis of circumstantial evidence, “if two views are possible on evidence adduced in the case – one binding to the guilt of the accused and the other is to his innocence, the view which is favourable to the accused, should be adopted.”

In view of the above, the conviction and sentence of both the appellants by the trial court was set aside, and they were directed to be released from jail forthwith unless otherwise wanted in any other case.[Rashid v. State of Uttar Pradesh, 2019 SCC OnLine All 2228, decided on 16-05-2019]

Case BriefsHigh Courts

Madras High Court: M. Govindaraj, J. disposed of a civil miscellaneous appeal, giving the appellant liberty to approach the trial court with appropriate application to vacate the injunction.

The present appeal was filed against the order of Principal District Judge granting an ex-parte injunction, wherein the appellant was directed not to supply the subject material other than to the respondent till the disposal of the suit. After receipt of the order, without approaching the trial court, the appellant preferred the present appeal directly.

The High Court was of the view that the appeal did not disclose any extraordinary circumstance or irreparable loss warranting interference. It was observed: “Normally this Court does not interfere with the discretionary power exercised by the Court unless it is fainted with the arbitrary exercise of such power, patently illegal or capricious. The appellant cannot approach this Court without exhausting the effective remedy available to him.”

Therefore, without going into merits, the Court disposed of the appeal by giving liberty to the appellant to approach the trial court with appropriate application to vacate the injunction.[Selva Spinners (P) Ltd. v. Liberty Clothing Co., 2019 SCC OnLine Mad 1515, decided on 16-04-2019]

Case BriefsHigh Courts

Delhi High Court: In view of the failure of justice on account of lack of effective cross-examination of prosecution witnesses, Sanjeev Sachdeva, J. quashed the trial court’s order convicting and sentencing the accused (appellant) for offence punishable under Section 6 of the Protection of Children from Sexual Offences Act, 2012.

The appellant had challenged the order of the trial court whereby he was convicted and sentenced under POCSO Act. He contended that the manner in which the trial was conducted showed that the principles of natural justice were violated and he was declined a fair opportunity of being defended.

The High Court found that some prosecution witnesses were not cross-examined and for others, there was very sketchy cross-examination. It was noted that the manner in which cross-examination was conducted on part of the accused by the amicus curiae appointed by the trial court clearly showed that he made no serious efforts to defend the accused. It was observed: “If the Amicus Curiae does not or is not in a position to effectively provide assistance to an accused, the Trial Court is obliged to correct the situation. Even the trial court failed to take any remedial steps. The manner in which the cross-examination has been conducted has clearly led to failure of justice.” Holding it to be a clear case of failure of justice, the Court quashed the impugned order and remanded the matter to the Court of Additional Sessions Judge for re-trial from the stage of cross-examination of prosecution witnesses.

Before departing with the case, the High Court recorded appreciation for the assistance rendered by Adit S. Pujari, Advocate appearing on behalf of Delhi High Court Legal Services Committee and also by Meenakshi Dahiya, Additional Public Prosecutor for the State. [Dev Kumar Yadav v. State (NCT of Delhi), 2019 SCC OnLine Del 8485, decided on 10-05-2019]

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]

Case BriefsForeign Courts

South Africa High Court, Kwazulu-Natal Division: This appeal was filed before a Division Bench of Gorven, J and Ntshulana, AJ preferred against the convictions and sentence for the offence of rape of two minor girls in contravention of Section 3 read with Sections 1, 56(1), 57, 58, 59, 60 and 61 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007.

The appellant was sentenced to undergo life imprisonment for both the rapes committed but for sentences, they were treated as one and his name was entered into the register for sexual offenders in terms of Section 50 of the Act. The Court noted that throughout the trial, the appellant had only challenged the evidence which was based on his plea of alibi and that incident was fabricated due to a family feud which was later rejected as false beyond a reasonable doubt. Appellant had contended that medical evidence failed to prove offence and thus he should be acquitted.

High Court relied on a case of S v. Hadebe, 1997 (2) SACR 641 (SCA) where it was held that if there was no material misdirection by the Trial Court, it was to be presumed to be correct. Thus, the Court concluded that evidence on record did not show any misdirection. Therefore, in the absence of substantial and compelling circumstances, the sentence was sustained and the appeal preferred against conviction and sentence was dismissed. [Sibonelo Bo Ngobese v. State, Case No. AR751 of 2017, decided on 29-03-2019]

Bail Application
Case BriefsHigh Courts

Himachal Pradesh High Court: The Bench of Tarlok Singh Chauhan, J. allowed an appeal challenging the judgment of first appellate court whereby the trial court’s order was set aside without taking the findings of trial court into consideration.

Appellant herein was a defendant in a suit for possession filed by the respondent (plaintiff before trial court), which was dismissed by the trial court. In an appeal by the respondent-plaintiff, the first appellate court set aside the trial court’s order. Aggrieved thereby, the instant regular second appeal was filed. 

The sole issue pertained to the scope, ambit and power of first appellate court while deciding first appeal. It was opined that the right to file first appeal against a decree under Section 96 of the Code of Civil Procedure, 1908 is a valuable legal right of the litigant. The jurisdiction of first appellate court while hearing first appeal is very wide like that of trial court and it is open to the appellant to attack all findings of fact or/and of law in the first appeal. It is the duty of first appellate court to appreciate the entire evidence, and then it may come to a different conclusion. While doing so, the judgment of first appellate court must reflect its conscious application of mind and record findings supported by reasons, on all issues along with the contentions put forth, and pressed by the parties. While reversing a finding of fact, the first appellate court must come into close quarters with the reasoning assigned by the trial court and then assign its own reasons for arriving at a different finding.

The Court noted that in the instant case, the first appellate court had not at all adverted to findings and reasons recorded by the trial court and had simply chosen to write a separate judgment without taking into consideration any of the facts and circumstances that prevailed upon the trial court to dismiss the suit.

In view of the above, the impugned order of the first appellate court was set aside, and the matter was remanded to it for a fresh decision.[Sunder Singh v. Roop Singh, 2019 SCC OnLine HP 550, decided on 26-04-2019]

Case BriefsHigh Courts

Delhi High Court: Sanjeev Sachdeva, J.dismissed a petition filed against the order of the trial court whereby it had recalled its earlier order and restored the petition for maintenance filed by the respondent-wife.

The wife had filed a petition for maintenance under Section 125 CrPC. The trial court had initially awarded interim maintenance of Rs 2000 per month. The proceedings pending from 2003-2012. On 08-10-2012, the wife was not present before the trial court, Her father prayed for exemption on the ground that she was an asthma patient and therefore couldn’t come to the court. However, the trial court rejected the prayer and closed her evidence. Since there was no evidence on record to prove the factum of marriage between the respondent and the petitioner, the trial court dismissed the wife’s petition. She filed an application seeking a recall of the said order which was allowed by the trial court and her petition was restored. Aggrieved thereby, the husband filed the present revision petition.

Abhimanyu Kampani and Samarth Teotia, Advocates appeared for the husband. Per contra, the wife was represented by Manika Tripathy Pandey, Ashutosh Kaushik and Brahm Kumar Pandey, Advocacies.

As per the High Court, the trial erred in not appreciating that there was no dispute about factum of marriage between the parties. Perusing the grounds mentioned in the present revision petition the Court observed: “The averments in the Revision Petition itself establishes that there is no dispute with regard to factum of marriage. Even if assuming there is no evidence on record, Trial Court can still pass an order of maintenance, if there are admissions on record. In the present case, Trial Court has dismissed the petition only on the ground that factum of marriage has not been proved.” 

In the Court’s opinion, to accept at this stage, the plea of the husband and the wife should have filed an appeal, would amount to gross harassment of the wife as the Judgment of the trial court would anyway be set aside for the asking. Also, referring to the wife’s medical records, the Court was of the view that she had sufficient cause for being not able to appear before the trial court. Therefore, the present revision petition was dismissed. [Surender Singh Arya v. Meenu Arya, 2019 SCC OnLine Del 7998, decided on 05-04-2019]

Case BriefsSupreme Court

Supreme Court: The bench of MM Shantanagoudar and Dinesh Maheshwari, JJ has held that it cannot be laid down as an absolute rule of law that a dying declaration cannot form the sole basis of conviction unless it is corroborated by other evidence. It was held that:

“A dying declaration, if found reliable, and if it is not an attempt by the deceased to cover the truth or to falsely implicate the accused, can be safely relied upon by the courts and can form the basis of conviction. More so, where the version given by the deceased as the dying declaration is supported and corroborated by other prosecution evidence, there is no reason for the courts to doubt the truthfulness of such dying declaration.”

The Court was hearing a matter wherein the deceased had died after the accused stabbed him during a quarrel relating to land dispute. He gave a statement to the Doctor when he was taken to primary care and that statement, in which the victim narrated the occurrence including the names of the assailants, was treated as a dying declaration. The Trial Court had, upon appreciation of the material on record, acquitted all the accused and held that the dying declaration of the victim was unreliable.

Noticing that the Trial Court had given more weightage to the minor variations found in the evidence   of the prosecution witnesses as compared to the information found in the dying declaration, the Court said:

“The courts cannot expect a victim like the deceased herein to state in exact words as to what happened during the course of the crime, inasmuch as it would be very difficult   for   such   a   victim, who has suffered multiple grievous injuries, to state all the details of the incident meticulously and that too in a parrot­like manner.”

The Court also said that the Trial   Court   was wrong in assuming that   the   Investigation   Officer   in collusion   with   the   doctor   wilfully   fabricated   the   dying declaration. It said:

“It is needless to state that the Investigation Officer and the doctor are independent public servants and are not related either to the accused or the deceased.  It is not open for the Trial Court to cast aspersions on the said public officers in relation to the dying declaration, more particularly when there is no supporting evidence to show such fabrication.”

[Laltu Ghosh v. State of West Bengal, 2019 SCC OnLine SC 236, decided on 19.02.2019]

Case BriefsHigh Courts

Delhi High Court: A Single Judge Bench comprising of Rekha Palli, J. declined to exercise extraordinary jurisdiction under Section 482 CrPC against the order of the CBI Special Court (PC Act) whereby it had ordered further investigation against the petitioner.

The petitioner was Superintendent of Customs, Kolkata. He was alleged to be a middle-man who took bribe from Rajesh Sarda to be handed over to his superior. Investigations were made against him by the Central Bureau of Investigation under Prevention of Corruption Act, 1988. CBI had filed a closure report in the same before the Special Court which while considering the report directed the CBI to proceed with a further investigation under Section 173(8) CrPC. Aggrieved thereby, the petitioner was before the High Court.

Shreya Bhatnagar, Advocate appearing for the petitioner relied on an earlier decision of the Court wherein cognizance was taken by the trial court against Rajesh Sarda was set aside as the CBI had already filed a closure report as was also the case herein. In light of that decision, it was contended that there was no reason why the petitioner should be made to face a prolonged trial. Rajdipa Behura, Special Public Prosecutor submitted reply on behalf of the CBI.

The High Court differentiated the decision mentioned above on that therein the trial court took cognizance of the matter without ordering further investigation which was not the right course. However, in petitioner’s case, the Special Court had categorically directed the CBI to carry out further investigation under Section 173(8). Furthermore, it was observed, “closure report is not binding on the learned trial court, and the court is in fact expected to apply its independent mind to the material on the record, merely because the CBI had made certain observations which partially support the petitioner, cannot be a ground to tinker with the directions for further investigation given by the learned trial court“. In light of such and other reasons, the Court found no reason to interfere with the impugned order and dismissed the petition. [N.K. Rai v. CBI, 2018 SCC OnLine Del 13200, dated 29-11-2018]

Case BriefsSupreme Court

Supreme Court: A Bench comprising of A.M. Sapre and Indu Malhotra, JJ. while allowing an appeal filed against the judgment of Kerala High Court, stated the factors guiding exercise of discretion by the Judges under Section 231 (2) CrPC and the practice guidelines to be followed by the trial courts while conducting criminal trials.

The trial court, in a criminal case, disallowed the application filed under Section 231 (2) by the accused seeking an adjournment of cross-examination of CWs 1 and 2 to a date after the examination-in-chief-of CWs 2 and 5 was complete. The said order was reversed by the High Court in an appeal filed by the accused. Aggrieved thereby, the appellant filed the present appeal.

The Supreme Court set aside the judgment impugned particularly in light of the possibility of undue influence and intimidation of witness(es) since the accused were “highly influential political leaders”. While holdings aforesaid, the Supreme Court stated that while deciding an application under the said Section, balance must be struck between the rights of the accused and prerogative of the prosecution to lead evidence. It was further stated that the following illustrative factors must be kept in consideration: (a) possibility of undue influence on or threats to witness; (b)possibility that non-deferral would enable subsequent witnesses giving evidence on similar facts to tailor their testimony to circumvent the defence strategy; (c) possibility of loss of memory of witness; (d) occurrence of delay in trial.

The Court further stated “practice” guidelines to be followed by trial courts in criminal trial which includes: (a) detailed case calendar must be prepared at the commencement of trial that specifies dates on which examination-in-chief and cross will be conducted; (b) testimony of witnesses deposing on the same subject-matter must be proximately scheduled; (c) request for deferral must be preferably made before preparation of calendar; (d) grant of request to be promised on sufficient reasons and date of cross-examination after deferral to be specified; (e) case calendar to be followed strictly and the witnesses to be safeguarded.

The appeal was disposed of in the terms above. [State of Kerala v. Rasheed,2018 SCC OnLine SC 2251 , dated 30-10-2018]

Case BriefsHigh Courts

Chhattisgarh High Court: In a first appeal referred to the Single Judge Bench comprising of Sharad Kumar Gupta, J., the impugned judgment and decree in regard to Section 13 of the Hindu Marriage Act, 1955 was dismissed.

Appellant had filed a divorce petition under Section 13 of the Hindu Marriage Act, 1955 which was dismissed by the trial court without recording relevant evidence. The appellant claimed that his marriage was solemnized in the year 1992 in accordance with Hindu rites and rituals and for about 17 years ago the respondent had performed second marriage and the appellant himself had performed second marriage. Though the respondent stated that her marriage was not solemnized with the appellant and neither did she perform second marriage. Therefore, observing the said facts of the case, the trial court had dismissed the divorce petition, against which the appellant had preferred this appeal.

The High Court, after considering the facts and circumstances of the case, concluded that the trial court had failed in recording the evidence in proper perspective and the appellant’s evidence was unrebutted. Moreover, the Court also observed that, the trial court by not paying any heed to the provisions of Section 23(2) of the Hindu Marriage Act, 1955 which talks about “making every endeavour to bring about reconciliation between the parties” and pronouncing their decision ex parte against the respondent due to non-appearance and not framing issues regarding the marriage and most importantly the pleadings in which the respondent states that she is married wife of the appellant under Section 24 of the Act, the High Court on the basis of this remitted the case to the trial court with directions to proceed with the suit in accordance of law and procedure. [Ramnarayan v. Gayatri, 2018 SCC OnLine chh 488, order dated 08-05-2018]

Case BriefsHigh Courts

Tripura High Court: Recently, the Court decided an appeal against the acquittal by a Sessions Court in Tripura which had set aside the conviction recorded by the Magistrate Court in a criminal misappropriation case under Sections 408 and 468 IPC. While hearing the appeal, the Court examined the Police Report on which the Magistrate took cognizance as well as the evidences and witnesses examined by the trial court Judges.

The Court while examining the documents relied upon (for alleged embezzlement of funds) by the Magistrate to convict the accused-respondent noticed that they were not specifically proved which was sufficiently noticed by the Sessions Court as well. Counsel for the respondent submitted that police took about eight years in submitting charge-sheet and thereafter it took another four years in concluding the trial before the Magistrate and that the accused had been subjected to harassment because of such long delay in the investigation and trial stating that that the charges framed against the accused were vague and the prosecution utterly failed to prove the charges and hence the order of acquittal should not be disturbed.

The Court observed that the fundamental principle of criminal justice is that an accused should be tried with an initial presumption of innocence and burden absolutely lies on the prosecution to prove the charges framed against the accused which can’t be shifted. Also, the Court further stated that that if two views on the basis of the evidence are reasonably possible the High Court should not interfere in an order of acquittal recorded by the trial court or by the appellate court and in an appeal under Section 378  CrPC or under proviso to Section 372  CrPC, the High Court has full power to review and re-appreciate the evidence on which the initial order of conviction was recorded by the trial Court and the subsequent order of acquittal recorded by the appellate Court to arrive at a reasonable conclusion.

The Division Bench further explained that a case of criminal breach of trust has to be proved by documentary evidence and the prosecution must be clear as to what are the documents which required to be proved to take the charges against the accused at home, and, how those documents to be proved. The Judges expressed shock over the fact that neither the investigation nor the prosecution was conducted aiming to prove before the Court the material allegation in respect of the charges of breach of trust and also that such an important case of criminal misappropriation and criminal breach of trust by a public servant was not attached with any importance by the investigating agency and even, the prosecution was conducted without any aim and object.

Further, the Court noticed that the trial court Judge was not attentive enough while hearing the matter, at the time of recording evidence and said that a trial Judge can’t be a mute spectator while proceedings are going on. Explaining the duties of a trial Judge, the Bench said that it also should not take the role of the prosecutor but he should ensure that the materials on the basis of which charges have been framed are properly and legally proved. It is the duty of the trial Judge to see and to find out all the material aspects of evidence of a case for fair ends of justice.

It directed that a trial Judge should not remain silent but should control a criminal case by actively participating therein to find out the truth and must question the witnesses in order to unearth the truth. Finally, the Court directed all trial Judges to remain alive at the time of recording evidence and to actively participate in the process and should control the criminal trial by such active participation to find out the truth and to ensure justice and dismissed the appeal upholding the acquittal. [Teliamura Nagar Panchayat v. Shri Samar Bhusan Sarkar and State of Tripura,  2017 SCC OnLine Tri 63, decided on 21.02.2017]

Case BriefsSupreme Court

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

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

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

 

Case BriefsHigh Courts

Madhya Pradesh High Court: Stating that the Trial Court should never consider itself as a “Post Officer or a mouth piece of the Prosecution”, the bench comprising of Atul Sreedharan, J., said that Section 227 and 228 of the CrPC make it incumbent upon the Session Court to consider the record of the case and the documents submitted therewith and thereafter having heard the accused and the prosecution, decide whether the accused shall be charged for the offence or discharged.

In the instant case, the material on record allegedly shows that the Petitioners has expressed an intention to beat up the deceased, but the investigation, including the post mortem report, had at no point suggested that they had succeeded in doing so. There was no evidence to show that they had been near him that day, or that they had been the proximate cause, or had abetted the deceased’s suicide by instigation, pressure or assistance. The Court hence, allowed the Criminal Revision petition filed by the Petitioners against the framing of charges under Section. 306, Penal Code by the Trial Court, thereby discharging the Petitioners.

The Court noted that to charge a person under Section 306 IPC, as per various Supreme Court rulings, it was essential for prosecution to establish prima facie that the actions of the accused were directly responsible for inducing the deceased to commit suicide, and satisfy the ingredients of Section 107 IPC. The Court cited Union of India v. Prafulla Kumar Samal (1979) 3 SCC  4 wherein it was laid down that the Trial Court at the stage of framing of charges was obliged to sift through the evidence only to the extent necessary to determine if a prima facie charge was constituted by the evidence, and it was competent to discharge an accused if the evidence disclosed ‘some suspicion’, not ‘grave suspicion’. Reasons are required to discharge, but to frame, an opinion suffices, as supported by the holding in Kanti Bhadra Shah v. State of West Bengal (2000) 1 SCC 722. However, the court delineated that pursuant to State of Maharashtra v. Som Nath Thapa (1996) 4 SCC 659, at the trial court stage the Trial Court ‘should (a) apply its judicial mind to the materials placed on the record as (b) framing of charges substantially affects the liberty of the person concerned’.

The Court held that Section 228 (1) CrPC made it essential for the Court to arrive at an opinion, and that such an opinion could only be formed on the ‘basis’ of materials on record; a ‘basis’ that it was essential for the Trial Court to state. Hence, it was held that the impugned order was bad in law for deficiency in stating the basis for the opinion that charges be framed under Section 306 IPC.  [Ramnaresh V State of Madhya Pradesh, 2016 SCC OnLine MP 838, 14-06-2016]