Showing posts with label high court. Show all posts
Showing posts with label high court. Show all posts

27 October 2020

Bail can not be denied to chargesheeted accused on the ground of abscondence of other accused

It is pertinent to note that the other ground raised by the prosecution is that the co­accused, who is relative of the present applicant, is absconding and, therefore, present petitioner may not be enlarged on bail.
Bail can not be denied to chargesheeted accused on the ground of abscondence of other accused
Now, it is well settled principle of criminal jurisprudence that even for securing presence or for getting whereabouts of the co­accused, no police custody remand could be granted. The same principle will apply in the case where bail is sought by the accused and the charge sheet is already filed against him/her. If there is laxity or inability of the prosecution to arrest the co­accused, on that ground the other accused against whom investigation is over and charge sheet is filed cannot be denied the right of getting bail in a given case.[Para No.7]

26 October 2020

Mere existence of motive to commit an offence by itself cannot give rise to an inference of guilt nor can it form the basis for conviction

Needless to say motive is that which impels a person to do a particular act. There can be no action without a motive. Motive may create a very strong suspicion but it cannot take the place of proof. Mere possibility of existence of motive cannot make the accused guilty, as held by the Hon'ble Apex Court in the case of Sarwan Singh Rattan Singh vs. State of Punjab. Where the prosecution case depends on circumstantial evidence, motive assumes significance and goes a long way to prove the case of the prosecution as held by the Hon'ble Apex Court in the case of Shivaji vs. State[Para No.36]

Mere existence of motive to commit an offence by itself cannot give rise to an inference of guilt nor can it form the basis for conviction
   Mere existence of motive by itself is not an incriminating circumstance and it cannot give rise to an inference of guilt nor can it form the basis for conviction. Motive for the crime, even if adequate, cannot by itself sustain a criminal charge. In the case in hand, we have discussed elaborately how the prosecution is found wanting in establishing the "last seen" theory. Therefore, practically, there is no evidence to establish any of the circumstances, which in such type of cases, need to be established by the prosecution and even if we assume for the sake of argument that the accused was harboring a motive to commit the murder of the deceased, that in itself, for want of other positive evidence, will not sail the prosecution through.[Para No.37]

22 October 2020

There is no limitation of period for invoking High Court's inherent powers u/s.482 Cr.P.C.

If evidence is relevant, it is admissible irrespective of how it is obtained


The Investigating Agency has no power to appreciate the evidence



    Regarding limitation, although delay is duly explained in the petition, however, there is no applicability of Limitation Act on Section 482 Cr.P.C. being the inherent powers of this Court. The said section is starting itself with a non-obstante clause (Notwithstanding) therefore, this Court has power to exercise inherent powers where there is miscarriage of justice and abuse of process of law. Non-applicability of Limitation Act and non- providing of limitation period in Cr.P.C. with regard to Section 482 Cr.P.C., the intention of the legislature was not to restrict this Court to use these powers in appropriate cases. Thus, raising the issue of limitation period about Section 482 Cr.P.C. is itself contrary to the intention of legislature and the very section itself. In this regard, judgments relied upon by the respondent no.2 (complainant) are not applicable, as facts and circumstances of those cases are different from the case in hand.[Para No.49

There is no limitation of period for invoking High Court's inherent powers u/s.482 Cr.P.C.
    As far as the issue of source of document is concerned, the Hon'ble Supreme Court and various High Courts including the case of Pushpadevi M. Jatia vs. M.L. Wadhavan & Ors.: (1987) 3 SCC 367 relied upon by respondent no.2 (complainant) held that the source of the evidence is not material, as long as it is admissible under the law, the same may be considered. If evidence is relevant, it is admissible irrespective of how it is obtained.[Para No.50]

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18 October 2020

The proof of demand is an indispensable essentiality to prove the offence under The Prevention of Corruption Act

In the light of the serious discrepancies in the evidence of the prosecution, the accused is entitled for benefit of doubt. The demand of bribe is not established by clinching evidence. Acceptance of bribe suffers from serious doubt. In Sujit Biswas Vs. State of Assam, it was held that Suspicion, however grave it may be, cannot take the place of proof and the prosecution cannot aford to rests its case in the realm "may be" true but has to upgrade it in the domain of "may be", in order to steer clear of any possible surmise or conjuncture. Court must ensure that miscarriage of justice are avoided and if in the facts and circumstances, two views are possible then, the benefit of doubt must be given to the accused. Applying the legal principle as above, the material on record, leave note manner of doubt that the prosecution in the present case, has failed to prove unequivocally the demand of illegal gratification and even its acceptance. In the case of P.Satyanarayna Murthy Vs. District Inspector of Police, State of Andhra Pradesh & Anr. It was held that the proof of demand of illegal gratification is gravamen of offence under Sections 7 and 13(1)(d)(i) and (ii) of the P.C. Act and in the absence thereof mistakenly the charge therefore, would fail. Mere acceptance of any amount by way of illegal gratification or recovery thereof, dehors the proof of demand, ipso facto, would not be sufficient to prove home the charge under these sections of the Act.
As a corollary, failure of the prosecution to prove the demand for illegal gratification would be fatal and mere recovery of the amount from the person accused of the offence under Sections 7 or 13 of the Act would not entail his conviction thereunder. In the case of B. Jayaraj v. State of Andhra Pradesh. It was held that the presumption under Section 20 of the P.C. Act can be drawn on proof of acceptance of illegal gratification was received for doing or forbearing to do any oficial act. Proof of acceptance of illegal gratification can follow only if there is proof of demand. In catena of decisions, the Apex Court has held that mere possession of recovery of currency note from an accused without proof of demand would not establish an offence under Section 7 as well as Section 13(1)(d), 13(2) of the P.C. Act. It has been propounded that in absence of proof of demand of any illegal gratification, the use of corrupt or illegal means or abuse of position as a public servant to obtain any valuable thing or pecuniary advantage, cannot be held to be proved. The proof of demand has been held to be an indispensable essentiality to prove the offence. In the present case, the demand as well as acceptance is under shadow of doubt and has not been established beyond reasonable doubt. 31 Considering the discrepancies in the evidence of the prosecution witnesses, I find that the evidence adduced against the accused by prosecution suffers from doubt. In the circumstances, the evidence relating to demand and acceptance cannot be believed. The accused is entitled for benefit of doubt and deserves to be acquitted.[Para No.30]

17 October 2020

Bail should be granted or refused based on the probability of attendance of the party to take his trial

By now it is well settled that gravity alone cannot be a decisive ground to deny bail, rather competing factors are required to be balanced by the court while exercising its discretion. It has been repeatedly held by the Hon'ble Apex Court that object of bail is to secure the appearance of the accused person at his trial by reasonable amount of bail. The object of bail is neither punitive nor preventative. The Hon'ble Apex Court in Sanjay Chandra versus Central Bureau of Investigation (2012)1 Supreme Court Cases 49; has been held as under:­ "The object of bail is to secure the appearance of the accused person at his trial by reasonable amount of bail. The object of bail is neither punitive nor preventative. Deprivation of liberty must be considered a punishment, unless it can be required to ensure that an accused person will stand his trial when called upon. The Courts owe more than verbal respect to the principle that punishment begins after conviction, and that every man is deemed to be innocent until duly tried and duly found guilty. Detention in custody pending completion of trial could be a cause of great hardship. From time to time, necessity demands that some unconvicted persons should be held in custody pending trial to secure their attendance at the trial but in such cases, "necessity" is the operative test. In India , it would be quite contrary to the concept of personal liberty enshrined in the Constitution that any person should be punished in respect of any matter, upon which, he has not been convicted or that in any circumstances, he should be deprived of his liberty upon only the belief that he will tamper with the witnesses if left at liberty, save in the most extraordinary circumstances. Apart from the question of prevention being the object of refusal of bail, one must not lose sight of the fact that any imprisonment before conviction has a substantial punitive content and it would be improper for any court to refuse bail as a mark of disapproval of former conduct whether the accused has been convicted for it or not or to refuse bail to an unconvicted person for the propose of giving him a taste of imprisonment as a lesson."[Para No.5]

Bail should granted or refused based on the probability of attendance of the party to take his trial

    Needless to say object of the bail is to secure the attendance of the accused in the trial and the proper test to be applied in the solution of the question whether bail should be granted or refused is whether it is probable that the party will appear to take his trial. Otherwise also, normal rule is of bail and not jail. Apart from above, Court has to keep in mind nature of accusations, nature of evidence in support thereof, severity of the punishment, which conviction will entail, character of the accused, circumstances which are peculiar to the accused involved in that crime.[Para No.6]

14 October 2020

Mere recovery of blood stained weapon cannot be construed as proof for the murder

For proving the contents of memorandum prepared u/s.27 of Evidence Act, the Investigating Officer must state the exact narration of facts in such document in his own words while deposing before the Court


    The direct implication of these two mandatory provisions is that a witness who steps into the witness box for proving a fact which he has seen or observed must give oral evidence to prove such fact. Manifestly, a memorandum prepared by the Investigating Officer under Section 27 of the Evidence Act refers to a fact which the Investigating Officer has seen and heard while interrogating the accused. Thus, for proving the contents of memorandum, the Investigating Officer must state the exact narration of facts in such document in his own words while deposing before the Court.

    This Court in the case of Dharma Vs. The State reported in AIR 1966 Raj 74 observed in paras 17 to 21 as under:
17. Now as regards the proving of such information, the matter seems to us to be governed by Sections 60, 159 and 160 of the Evidence Act. It is correct that statements and reports prepared outside the court cannot by themselves be accepted as primary or substantive evidence of the facts stated therein. Section 60 of the Evidence Act lays down that oral evidence must, in all cases whatever, be direct, that is to say, if it refers to a fact which could be seen, it must be the evidence of a witness who says he saw it, and if it refers to a fact which could be heard, it must be the evidence of a witness who says he heard it and so on. Section 159 then permits a witness while under examination to refresh his memory by referring to any writing made by himself at the time of the transaction concerning which he is questioned, or so soon afterwards that the court considers it likely that the transaction was at that time fresh in the memory. Again, with the permission of the court, the witness may refresh, his memory by referring to a copy of such document. And the witness may even refer to any such writing made by any other person but which was read by him at the time the transaction was fresh in his memory and when he read it, he knew it to be correct. Section 160 then provides for cases where the witness has no independent recollection say, from lapse of memory, of the transaction to which he wants to testify by looking at the document and states that although he has no such recollection he is sure that the contents of the document were correctly recorded at the time they were. It seems to us that where a case of this character arises and the document itself has been tendered in evidence, the document becomes primary evidence in the case. See Jagan Nath v. Emperor, AIR 1932 Lah 7.

    The fundamental distinction between the two sections is that while under Section 159 it is the witness's memory or recollection which is evidence, the document itself not having been tendered in evidence; under Section 160, it is the document which is evidence of the facts contained in it. It has been further held that in order to bring a case under Section 160, though the witness should ordinarily affirm on oath that he does not recollect the facts mentioned in the document, the mere omission to say so will not make the document inadmissible provided the witness swears that he is sure that the facts are correctly recorded in the document itself. Thus in Partab Singh v. Emperor, AIR 1926 Lah 310 it was held that where the surrounding circumstances intervening between the recording of a statement and the trial would as a matter of normal human experience render it impossible for a police officer to recollect and reproduce the words used, his statement should be treated as if he had prefaced it by stating categorically that he could not remember what the deceased in that case had said to him. Putting the whole thing in somewhat different language, what was held was that Section 160 of the Act applies equally when the witness states in so many words that he has no independent recollection of the precise words used, or when it should stand established beyond doubt that that should be so as a matter of natural and necessary conclusion from the surrounding circumstances.
    18. Again, in Krishnama v. Emperor, AIR 1931 Mad 430 a Sub-Assistant Surgeon recorded the statement made by the deceased just before his death, which took place in April, 1930, and the former was called upon to give evidence some time in July, 1930. In the Sessions Court he just put in the recorded statement of the deceased which was admitted in evidence. On appeal it was objected that such statement was wrongly admitted inasmuch as the witness did not use it to refresh his memory nor did he attempt from recollection to reproduce the words used by the accused. It was held that he could not have been expected to reproduce the words of the deceased, and therefore, he was entitled to put in the document as a correct record of what the deponent had said at the time on the theory that the statement should be treated as if the witness had prefaced it by stating categorically that he could not remember what the deceased had said.
   19. Again in Public Prosecutor v. Venkatarama Naidu, AIR 1943 Mad 542, the question arose how the notes of a speech taken by a police officer be admitted in evidence. It was held that it was not necessary that the officer should be made to testify orally after referring to those notes. The police officer should describe his attendance, the making of the relevant speech and give a description of its nature so as to identify his presence there and his attention to what was going on, and that after that it was quite enough it he said "I wrote down that speech and this is what I took down," and if the prosecution had done that, they would be considered to have proved the words. This case refers to a decision of the Lahore High Court in Om Prakash v. Emperor, AIR 1930 Lah 867 wherein the contention was raised that the notes of a speech taken by a police officer were not admissible in evidence as he did not testify orally as to the speech and had not refreshed his memory under Section 159 of the Evidence Act from those notes. It was held that instead of deposing orally as to the speech made by the appellant, the police officer had put in the notes made by him, and that there would be no difference between this procedure and the police officer deposing orally after reference to those notes, and that for all practical purposes, that would be one and the same thing.
   20. The same view appears to us to have been taken in Emperor v. Balaram Das, AIR 1922 Cal 382 (2).
    21. From the discussion that we have made, we think that the correct legal position is somewhat like this. Normally, a police officer (or a Motbir) should reproduce the contents, of the statement made by the accused under Section 27 of the Evidence Act in Court by refreshing his memory under Section 159 of the Evidence Act from the memo earlier prepared thereof by him at the time the statement had been made to him or in his presence and which was recorded at the same time or soon after the making of it and that would be a perfectly unexceptionable way of proving such a statement. We do not think in this connection, however, that it would be correct to say that he can refer to the memo under Section 159 of the Evidence Act only if he establishes a case of lack of recollection and not otherwise. We further think that where the police officer swears that he does not remember the exact words used by the accused from lapse of time or a like cause or even where he does not positively say so but it is reasonably established from the surrounding circumstances (chief of which would be the intervening time between the making of the statement and the recording of the witness's deposition at the trial) that it could hardly be expected in the natural course of human conduct that he could or would have a precise or dependable recollection of the same, then under Section 160 of the Evidence Act, it would be open to the witness to rely on the document itself and swear that the contents thereof are correct where he is sure that they are so and such a case would naturally arise where he happens to have recorded the statement himself or where it has been recorded by some one else but in his own presence, and in such a case the document itself would be acceptable substantive evidence of the facts contained therein. With respect, we should further make it clear that in so far as Chhangani, J.'s holds to the contrary, we are unable to accept it as laying down the correct law. We hold accordingly."

Rejection of a bail application by Sessions Court does not operate as a bar for the High Court in entertaining a similar application under Section 439 Cr. P. C.

In the instant case, learned Principal Sessions Judge, Samba, has rejected the bail petition of both the petitioners. The question that arises for consideration is whether or not successive bail applications will lie before this Court. The law on this issue is very clear that if an earlier application was rejected by an inferior court, the superior court can always entertain the successive bail application. In this behalf, it will be profitable to quote the following observations of the Supreme Court in the case titled Gurcharan Singh & Ors vs State (Delhi Administration), AIR 1978 SC 179:

"It is significant to note that under Section 397, Cr.P.C of the new Code while the High Court and the Sessions Judge have the concurrent powers of revision, it is expressly provided under sub-section (3) of that section that when an application under that section has been made by any person to the High Court or to the Sessions Judge, no further application by the same person shall be entertained by the other of them. This is the position explicitly made clear under the new Code with regard to revision when the authorities have concurrent powers. Similar was the position under Section 435(4), Cr.P.C of the old Code with regard to concurrent revision powers of the Sessions Judge and the District Magistrate. Although, under Section 435(1) Cr.P.C of the old Code the High Court, a Sessions Judge or a District Magistrate had concurrent powers of revision, the High Court's jurisdiction in revision was left untouched. There is no provision in the new Code excluding the jurisdiction of the High Court in dealing with an application under Section 439(2), Cr.P.C to cancel bail after the Sessions Judge had been moved and an order had been passed by him granting bail. The High Court has undoubtedly jurisdiction to entertain the application under Section 439(2), Cr.P.C for cancellation of bail notwithstanding that the Sessions Judge had earlier admitted the appellants to bail. There is, therefore, no force in the submission of Mr Mukherjee to the contrary."[Para No.5]


    Relying upon the aforesaid observations of the Supreme Court, the High Court of Bombay in the case titled Devi Das Raghu Nath Naik v. State, (Crimes Volume 3 1987 363), has observed as under:
Rejection of a bail application by Sessions Court does not operate as a bar for the High Court in entertaining a similar application under Section 439 Cr. P.

"The above view of the learned Single Judge of the Kerala High Court appears to me to be correct. In fact, it is now well-settled that there is no bar whatsoever for a party to approach either the High Court or the Sessions Court with an application for an ordinary bail made under Section 439 Cr.P.C. The power given by Section 439 to the High Court or to the Sessions Court is an independent power and thus, when the High Court acts in the exercise of such power it does not exercise any revisional jurisdiction, but its original special jurisdiction to grant bail. This being so, it becomes obvious that although under section 439 Cr.P.C. concurrent jurisdiction is given to the High Court and Sessions Court, the fact, that the Sessions Court has refused a bail under Section 439 does not operate as a bar for the High Court entertaining a similar application under Section 439 on the same facts and for the same offence. However, if the choice was made by the party to move first the High Court and the High Court has dismissed the application, then the decorum and the hierarchy of the Courts require that if the Sessions Court is moved with a similar application on the same fact, the said application be dismissed. This can be inferred also from the decision of the Supreme Court in Gurcharan Singh's case (above)."[Para No.6]

13 October 2020

While deciding an application for rejection of plaint under Order VII Rule 11 CPC, the court is required to take the averments made therein to be correct

To set the tempo, we may start by referring to the legal position. It is well settled that a plaint can be rejected on any of the grounds enumerated under Order VII Rule 11 of the CPC. It is equally well settled that on going through an application moved under Order VII Rule 11 CPC, the court is required to examine the plaint as a whole and take the averments made therein to be correct. If on a reading of the plaint, a cause of action is made out, then the plaint cannot be rejected. While dealing with an application under Order VII Rule 11 CPC, the court must forebear from going into disputed questions of facts including the defence taken by the defendant in his written statement or his application for rejection of the plaint. [Refer: Inspiration Clothes & U. v. Collby International Ltd., 88 (2000) DLT 769; Tilak Raj Bhagat v. Ranjit Kaur, 159 (2009) DLT 470; Bhau Ram v. Janak Singh, V (2012) SLT 536; Tilak Raj Bhagat v. Ranjit Kaur, 2012 (5) AD (Del) 186; Indian City Properties Ltd. v. Vimla Singh] 198 (2013) DLT 432; and Razia Begum v. DDA 215 (2014) DLT 290 (DB)].[Para No.14]

While deciding an application for rejection of plaint under Order VII Rule 11 CPC, the court is required take the averments made therein to be correct

    It may also be emphasized that for deciding an application filed under Order VII Rule 11 CPC, the court must not be selective in picking upon the averments made in the plaint and read them in isolation. Instead, a meaningful reading of the entire plaint must be conducted for the court to satisfy itself as to whether the averments made therein, if taken to be correct in their entirety, would result in a decree being passed. The manner of examination which a court is expected to undertake for scrutinizing the plaint and the documents filed to decide an application under Order VII Rule 11 CPC, have been discussed by the Supreme Court in a catena of decisions including in T. Arivandandam vs. T.V. Satyapal & Anr., reported as 1977 (4) SCC 467, Popat and Kotecha Property vs. State Bank of India Staff Association reported as (2005) 7 SCC 510 and Hardesh Ores Pvt. Ltd. vs. M/s. Hede & Company reported as 2007 (5) SCC 614. [Para No.15]

    In Popat and Kotecha Property (supra), the Supreme Court observed as under:
"10. Clause (d) of Order 7 Rule 11 speaks of suit, as appears from the statement in the plaint to be barred by any law. Disputed questions cannot be decided at the time of considering an application filed under Order 7 Rule 11 CPC. Clause (d) of Rule 11 of Order 7 applies in those cases only where the statement made by the plaintiff in the plaint, without any doubt or dispute shows that the suit is barred by any law in force.

19. There cannot be any compartmentalisation, dissection, segregation and inversions of the language of various paragraphs in the plaint. If such a course is adopted it would run counter to the cardinal canon of interpretation according to which a pleading has to be read as a whole to ascertain its true import. It is not permissible to cull out a sentence or a passage and to read it out of the context in isolation. Although it is the substance and not merely the form that has to be looked into, the pleading has to be construed as it stands without addition or subtraction of words or change of its apparent grammatical sense. The intention of the party concerned is to be gathered primarily from the tenor and terms of his pleadings taken as a whole. At the same time it should be borne in mind that no pedantic approach should be adopted to defeat justice on hair-splitting technicalities." (emphasis added)[Para No.16]

09 October 2020

sale certificate of any property sold by a public auction by a civil or revenue officer does not require registration and for its registration requisite stamp duty cannot be insisted by the registrar

Even the aforesaid Section though mandatory in nature provides which of the documents are compulsorily to be registered, but it does not include sale by auction and sale certificate issued by the concerned authority including confirmation of the sale which are outcome of auction proceedings conducted in terms of the Court's order. The provision is speaking one and without any ambiguity, thus, registration was not required.[Para No.8]

     The issue raised in this petition is no longer res integra and is squarely covered by the judgment of the Hon'ble Supreme Court in Som Dev and others vs. Rati Ram and another (2006) 10 SCC 788 and thereafter in a subsequent judgment B. Arvind Kumar vs. Govt. of India and others (2007) 5 SCC 745 which judgments, in turn, have been considered by learned Division Bench of this Court in Valley Iron & Steel Company Ltd. vs. State of Himachal Pradesh and other (2016) 5 ILR 1639, and the relevant observations are as under:-
"24. Learned Senior Counsel appearing on behalf of the writ petitioner argued that the authorities concerned have refused to register the sale and make the entries in the revenue records on the ground that the necessary permission was to be obtained as per the mandate of Section 118 of the Act.

25. It is also contended that the sale certificate and the confirmation of sale issued by the authorities, i.e. Annexures P6 and P8, are necessary to be registered before the authority concerned in terms of the mandate of Section 17 of the Registration Act, 1908 (for short "the Registration Act"), which is not legally correct.


26. Section 17 of the Registration Act, though mandatory in nature, provides which of the documents are compulsory to be registered. It does not include sale by auction and sale certificate issued by the concerned authorities including confirmation of sale, which are outcome of the auction proceedings conducted in terms of Court orders.
sale certificate of any property sold by a public auction by a civil or revenue officer does not require registration and for its registration requisite stamp duty cannot be insisted by the registrar
The provision is speaking one and without any ambiguity. Thus, registration was not required. The Apex Court in the case titled as B. Arvind Kumar versus Govt. of India and others, 2007 5 SCC 745 , held that a sale certificate issued by a Court or an officer authorized by the Court does not require registration. It is apt to reproduce para 12 of the judgment herein:
"12. The plaintiff has produced the original registered sale certificate dated 29.8.1941 executed by the Official Receiver, Civil Station, Bangalore. The said deed certifies that Bhowrilal (father of plaintiff) was the highest bidder at an auction sale held on 22.8.1941, in respect of the right, title, interest of the insolvent Anraj Sankla, namely the leasehold right in the property described in the schedule to the certificate (suit property), that his bid of Rs. 8,350.00 was accepted and the sale was confirmed by the District Judge, Civil and Military Station, Bangalore on 25.8.1941. The sale certificate declared Bhowrilal to be the owner of the leasehold right in respect of the suit property. When a property is sold by public auction in pursuance of an order of the court and the bid is accepted and the sale is confirmed by the court in favour of the purchaser, the sale becomes absolute and the title vests in the purchaser. A sale certificate is issued to the purchaser only when the sale becomes absolute. The sale certificate is merely the evidence of such title. It is well settled that when an auction purchaser derives title on confirmation of sale in his favour, and a sale certificate is issued evidencing such sale and title, no further deed of transfer from the court is contemplated or required. In this case, the sale certificate itself was registered, though such a sale certificate issued by a court or an officer authorized by the court, does not require registration. Section 17(2)(xii) of the Registration Act, 1908 specifically provides that a certificate of sale granted to any purchaser of any property sold by a public auction by a civil or revenue officer does not fall under the category of non testamentary documents which require registration under subsec. (b) and (c) of sec. 17(1) of the said Act. We therefore hold that the High Court committed a serious error in holding that the sale certificate did not convey any right, title or interest to plaintiff's father for want of a registered deed of transfer."

28. The same principle has been laid down by the Apex Court in the case titled as Som Dev and others versus Rati Ram and another, 2006 10 SCC 788 . It would be profitable to reproduce para 15 of the judgment herein:
"15. Almost the whole of the argument on behalf of the appellants here, is based on the ratio of the decision of this Court in Bhoop Singh v. Ram Singh Major, 1995 5 SCC 709 , It was held in that case that exception under clause (vi) of Section 17(2) of the Act is meant to cover that decree or order of a Court including the decree or order expressed to be made on a compromise which declares the preexisting right and does not by itself create new right, title or interest in praesent in immovable property of the value of Rs.100/ or upwards. Any other view would find the mischief of avoidance of registration which requires payment of stamp duty embedded in the decree or order. It would, therefore, be the duty of the Court to examine in each case whether the parties had preexisting right to the immovable property or whether under the order or decree of the Court one party having right, title or interest therein agreed or suffered to extinguish the same and created a right in praesenti in immovable property of the value of Rs.100/ or upwards in favour of the other party for the first time either by compromise or pretended consent. If latter be the position, the document is compulsorily registrable. Their Lordships referred to the decisions of this Court in regard to the family arrangements and whether such family arrangements require to be compulsorily registered and also the decision relating to an award. With respect, we may point out that an award does not come within the exception contained in clause (vi) of Section 17(2) of the Registration act and the exception therein is confined to decrees or orders of a Court. Understood in the context of the decision in Hemanta Kumari Debi v. Midnapur Zamindari Co. Ltd., 1919 AIR(PC) 79 and the subsequent amendment brought about in the provision, the position that emerges is that a decree or order of a court is exempted from registration even if clauses (b)and (c) of Section 17(1) of the Registration Act are attracted, and even a compromise decree comes under the exception, unless, of course, it takes in any immovable property that is not the subject matter of the suit.

 

29. A question arose before the Madras High Court in a case titled as K. Chidambara Manickam versus Shakeena & Ors., 2008 AIR(Mad) 108 , whether the sale of secured assets in public auction which ended in issuance of a sale certificate is a complete and absolute sale or whether the sale would become final only on the registration of the sale certificate? It has been held that the sale becomes final when it is confirmed in favour of the auction purchaser, he is vested with rights in relation to the property purchased in auction on issuance of the sale certificate and becomes the absolute owner of the property. The sale certificate does not require any registration. It is apt to reproduce paras 10.13, 10.14, 10.17 and 10.18 of the judgment herein:-
"10.13 Part III of the Registration Act speaks of the Registration of documents. Section 17(1) of the Registration Act enumerates the documents which require compulsory Registration. However, subsection (2) of Section 10 sets out the documents to which clause (b) and (c) of subsection (1) of Section 17 do not apply. Clause (xii) of subsection (2) of Section 17 of the Registration Act reads as under:
"Section 17(2)(xii) any certificate of sale granted to the purchaser of any property sold by public auction by a Civil or Revenue Officer."

10.14 A Division Bench of this Court in Arumugham, S. v. C.K. Venugopal Chetty,1994 1 LW 491 , held that the property transferred by Official Assignee, under order of Court, does not require registration under Section 17 of the Registration Act. The Division Bench has held as follows:

Court of Sessions can permit u/s. 301, 24(8) of CrPC to the advocate of victim to make oral argument too apart from submission of the written argument

Advocate is treated to be officer of the court and supposed to assist the court in arriving the truth, so, right to address the court to an Advocate cannot be curtailed while representing his client


    In proviso added to Section 24(8) Cr.P.C., the word used are "assist the prosecution" and not to assist the public Prosecutor as mentioned in Section 301 Cr.P.C. There is difference in the scheme of two sections. From perusal of Sub-section 2 of section 301 Cr.P.C., made it clear that if in any case private person instruct a pleader to prosecute any person in any court even though the Public Prosecutor in charge of case shall conduct the prosecution and the pleader instructed shall act therein under the directions of the Public Prosecutor. Up to this stage no permission of court is needed for appointment of pleader by a private person. The permission is only required to the pleader if he want to file written argument in the case. However after insertion of proviso to Section 24(8) Cr.P.C., the court can permits a victims advocate to assist the prosecution. The status and position of Advocate engaged by the victim would be changed because in that situation the court at the very inception may permit the Advocate of the choice of the victim to participate in the proceeding and to assist the prosecution and not to the public prosecutor. Prosecution include investigation, enquiry, trial and appeal within the meaning of Section 24 Cr.P.C. Section 301 Cr.P.C., deals with only inquiry, trial or appeal. Inquiry has been defined in Section 2(g) Cr.P.C., means every inquiry, other than a trial, conducted under this Code by a Magistrate or Court. As such inquiry is different from investigation as defined in section 2(h) Cr.P.C.[Para No.39]

    Neither word prosecution nor trial has been defined in the Cr.P.C. Trial has been defined by the Apex Court in Union of India v. Major General Madan Lal Yadav [(1996) 4 SCC 127]. It means an act of proving or judicial examination or determination of the issues including its own jurisdiction or authority in accordance with law or adjudging guilt or innocence of the accused including all steps necessary thereto. Meaning of trial changes in view of specific provision of the code. The expression trial used in Section 306 Cr.P.C., includes both an inquiry as well as trial as held by the Apex Court in A. Devendran v. State of Tamilnadu (1997) 11 SCC 720.[Para No.40]

    The prosecution has not been defined specifically in the light of proviso to Section 24(8) Cr.P.C. The meaning of word prosecution as defined in Webster Dictionary, 3rd Edition is as follow;
"the carrying out of a plan, project, or course of action to or toward a specific end."[Para No.41]
..........

Court of Sessions can permit u/s. 301, 24(8) of CrPC to the advocate of victim to make oral argument too apart from submission of the written argument
    The whole scheme if taken into consideration for prosecution and trial of an accused the dominant role is played by the public prosecutor but by insertion of proviso to Section 24(8) Cr.P.C., the Court is now authorised to permit the victim to engage a lawyer of his choice to assist the prosecution. The prosecution of an offender is virtually carried out in the court of law constituted under some statute presided over by a judge and not by any party to the proceedings. The public prosecutors, the advocate of the accused or special counsel appointed by the aggrieved person or the Advocate engaged by a victim, all are officers of the court. They all assist the court to arrive at truth during prosecution of an accused. Therefore in section 24 or in section 301 phrase with the permission of court is used. So, once the permission is accorded to the Advocate of the victim to assist the prosecution his assistance could not be restricted to the terminology of Section 301, i.e., only to assist the prosecutor. The court in view of the same can permit to advance the oral argument too to the Advocate engaged by the victim apart from submission of the written argument. The importance of oral argument cannot be out weight by saying that right to written argument has been given in Section 301 Cr.P.C.[Para No.43]

07 October 2020

Temporary appointment in a service can not be regularised as permanent service

In regard to the petitioner's prayer regarding regularization, reference must be made to the decision of the Apex Court in State of Karnataka vrs. Umadevi (2006) 4 SCC 1 and essentially the observation made in para 15, 16 and 53 which reads as follows:
"15. Even at the threshold, it is necessary to keep in mind the distinction between regularization and conferment of permanence in service jurisprudent. In State of Mysore v. S.V. Narayanappa [(1976) 1 SCR 128: AIR 1967 SC 1071] this Court stated that it was a misconception to consider that regularization meant permanence. In R.N. Nanjundappa v. T. Thimmiah [(1972) 1 SCC 409: (1972) 2 SCR 799] this Court dealt with an argument that regularization would mean conferring the quality of permanence on the appointment. This Court stated: (SCC pp. 416-17, para 26) 
"Counsel on behalf of the respondent contended that regularization would mean conferring the quality of permanence on the appointment whereas counsel on behalf of the State contended that regularization did not mean permanence but that it was a case of regularization of the rules under Article 309. Both the contentions are fallacious. If the appointment itself is in infraction of the rules or if it is in violation of the provisions of the Constitution illegality cannot be regularized. Ratification or regularization is possible of an act which is within the power and province of the authority but there has been some non-compliance with procedure or manner which does not go to the root of the appointment. Regularization cannot be said to be a mode of recruitment. To accede to such a proposition would be to introduce a new head of appointment in defiance of rules or it may have the effect of setting at naught the rules."

16. In B. N. Nagarajan v. State of Karnataka [(1979) 4 SCC 507: 1980 SCC (L&S) 4: (1979) 3 SCR 937] this Court clearly held that the words "regular" or "regularization" do not connote permanence and cannot be construed so as to convey an idea of the nature of tenure of appointments. They are terms calculated to condone any procedural irregularities and are meant to cure only such defects as are attributable to methodology followed in making the appointments. This Court emphasized that when rules framed under Article 309 of the Constitution are in force, no regularization is permissible in exercise of the executive powers of the Government under Article 162 of the Constitution in contravention of rules. These decisions and the principles recognized therein have not been dissented to by this Court and on principle, we see no reason not to accept the proposition as enunciated in the above decisions. We have, therefore, to keep this distinction in mind and proceed on the basis that only something that is irregular for want of compliance with one of the elements in the process of selection which does not go to the root of the process, can be regularized and that it alone can be regularized and granting permanence of employment is a totally different concept and cannot be equated with regularization.

53. One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) as explained in S.V. Narayanappa [(1967) 1 SCR 128: AIR 1967 SC 1071], R. N. Nanjundappa [(1972) 1 SCC 409: (1972) 2 SCR 799] and B.N. Nagarajan [(1979) 4 SCC 507: 1980 SCC (L&S) 4: (1979) 3 SCR 937] and referred to in para 15 above, of duly qualified persons in duly sanctioned vacant posts might have been made and the employees have continued to work for ten years or more but without the intervention of orders of the courts or of tribunals. The question of regularization of the services of such employees may have to be considered on merits in the light of the principles settled by this Court in the cases above referred to and in the light of this judgement. In that context, the Union of India, the State Governments and their instrumentalities should take steps to regularize as a one-time measure, the services of such irregularly appointed, who have worked for ten years or more in duly sanctioned posts but not under cover of orders of the courts or of tribunals and should further ensure that regular recruitments are undertaken to fill those vacant sanctioned posts that require to be filled up, in cases where temporary employees or daily wagers are being now employed. The process must be set in motion within six months from this date. We also clarify that regularization, if any already made, but not sub judice, need not be reopened based on this judgement, but there should be no further bypassing of the constitutional requirement and regularizing or making permanent, those not duly appointed as per the constitutional scheme"[Para No.19]


    In my considered opinion, the petitioners cannot rely upon the doctrine of legitimate expectation to seek regularization of employment. The petitioners from the very beginning of their contract were fully aware of the temporary nature of employment and that it would expire within stipulated period unless extended by the Government. The Hon'ble Apex Court in this regard has dealt with this principle in Umadevi (Supra) and held as follows:
Temporary appointment in a service can not be regularised as permanent service
"47. When a person enters a temporary employment or gets engagements as a contractual or casual worker and the engagement is not based on a proper selection as recognized by the relevant rules or procedure, he is aware of the consequences of the appointment being temporary, casual or contractual in nature. Such a person cannot invoke the theory of legitimate expectation for being confirmed in the post when an appointment to the post could be made only by following a proper procedure for selection and in concerned cases, in consultation with the Public Service Commission. Therefore, the theory of legitimate expectation cannot be successfully advanced by temporary, contractual or casual employees. It cannot also be held that the State has held out any promise while engaging these persons either to continue them where they are or to make them permanent. The State cannot constitutionally make such a promise. It is also obvious that the theory cannot be invoked to seek a positive relief of being made permanent of the post.

06 October 2020

Whenever the process of election starts, normally courts should not interfere with the process of election

The Court can draw support from the judgment of the Hon'ble Apex Court in the case of Shaji K Joseph vs V.Viswanath & Ors reported in 2016(4) SCC 429, in Para-14 and Para-15, held as under:
"14. In our opinion, the High Court was not right in interfering with the process of election especially when the process of election had started upon publication of the election program on 27th January, 2011 and more particularly when an alternative statutory remedy was available to Respondent no.1 by way of referring the dispute to the Central Government as per the provisions of Section 5 of the Act read with Regulation 20 of the Regulations. So far as the issue with regard to eligibility of Respondent no.1 for contesting the election is concerned, though prima facie it appears that Respondent no.1 could contest the election, we do not propose to go into the said issue because, in our opinion, as per the settled law, the High Court should not have interfered with the election after the process of election had commenced. The judgments referred to hereinabove clearly show the settled position of law to the effect that whenever the process of election starts, normally courts should not interfere with the process of election for the simple reason that if the process of election is interfered with by the courts, possibly no election would be completed without court's order. Very often, for frivolous reasons candidates or others approach the courts and by virtue of interim orders passed by courts, the election is delayed or cancelled and in such a case the basic purpose of having election and getting an elected body to run the administration is frustrated. For the aforestated reasons, this Court has taken a view that all disputes with regard to election should be dealt with only after completion of the election.

Whenever the process of election starts, normally courts should not interfere with the process of election
15. This Court, in Ponnuswami v. Returning Officer (supra) has held that once the election process starts, it would not be proper for the courts to interfere with the election process. Similar view was taken by this Court in Shri Sant Sadguru Janardan Swami (Moingiri Maharaj) Sahakari Dugdha Utpadak Sanstha v. State of Maharashtra (supra)."[Para No.35]

plaintiff has no absolute right, at the appellate stage, to withdraw from the suit

However, when an application for withdrawal of suit is filed at the appellate stage, the court has to take into consideration some other matters also. In Bhoopathy v. Kokila : AIR 2000 SC 2132, the Supreme Court has held as follows:
"No doubt, the grant of leave envisaged in sub-rule (3) of Rule 1 is at the discretion of the court but such discretion is to be exercised by the court with caution and circumspection. ...... The court is to discharge the duty mandated under the provision of the Code on taking into consideration all relevant aspects of the matter including the desirability of permitting the party to start a fresh round of litigation on the same cause of action. This becomes all the more important in a case where the application under Order 23 Rule 1 is filed by the plaintiff at the stage of appeal. Grant of leave in such a case would result in the unsuccessful plaintiff to avoid the decree or decrees against him and seek a fresh adjudication of the controversy on a clean slate. It may also result in the contesting defendant losing the advantage of adjudication of the dispute by the court or courts below. Grant of permission for withdrawal of a suit with leave to file a fresh suit may also result in annulment of a right vested in the defendant or even a third party. The appellate/second appellate court should apply its mind to the case with a view to ensure strict compliance with the conditions prescribed in Order 23 Rule 1(3) C.P.C for exercise of the discretionary power in permitting the withdrawal of the suit with leave to file a fresh suit on the same cause of action.

    Yet another reason in support of this view is that withdrawal of a suit at the appellate/second appellate stage results in wastage of public time of courts which is of considerable importance in present time in view of large accumulation of cases in lower courts and inordinate delay in disposal of the cases. ........ It is the duty of the court to feel satisfied that there exist proper grounds/reasons for granting permission for withdrawal of the suit with leave to file fresh suit by the plaintiffs and in such a matter the statutory mandate is not complied with by merely stating that grant of permission will not prejudice the defendants. In case such permission is granted at the appellate or second appellate stage prejudice to the defendant is writ large as he loses the benefit of the decision in his favour in the lower court". (emphasis supplied).[Para No.29]


    In Rathinavel Chettiar (supra), the Supreme Court has held as follows:

plaintiff has no absolute right, at the appellate stage, to withdraw from the suit
"Since withdrawal of suit at the appellate stage, if allowed, would have the effect of destroying or nullifying the decree affecting thereby rights of the parties which came to be vested under the decree, it cannot be allowed as a matter of course but has to be allowed rarely only when a strong case is made out. ..... Where a decree passed by the Trial Court is challenged in appeal, it would not be open to the plaintiff, at that stage, to withdraw the suit as to destroy that decree. The rights which have come to be vested in the parties to the suit under the decree cannot be taken away by withdrawal of the suit at that stage unless very strong reasons are shown that the withdrawal would not affect or prejudice anybody's vested rights".[Para No.30]

04 October 2020

It amounts defamation u/s.499 of IPC if defamatory contents of pleading filed in a matrimonial case are revealed to relatives and friends of complainant

Learned Amicus Curiae for the respondent/complainant in Criminal Revision Petition Crl.R.P.No.152/2014, in her argument stating that the pleadings filed in a Court and the deposition given in a Court of Law are not privileged one and further stating that a pleading filed in the Court also amounts to publication, has relied upon few judgments in her support as follows.
    In the case of Smt. Madhuri Mukund Chitnis Vs. Mukund Martand Chitnis and another reported in 1990 CRL.L.J. 2084, the Bombay High Court was pleased to observe that, the imputations made in a proceeding which is filed in a Court is clearly a publication. It further observed that even a publication to an authority over the person against whom the imputations are made must be held to be sufficient publication which falls within the purview of the said Section 499 of IPC.

It amounts defamation u/s.499 of IPC if defamatory contents of pleading filed in a matrimonial case are revealed to relatives and friends of complainant

    In the case of M.K. Prabhakaran and another Vs.T.E. Gangadharan and another reported in 2006 CRI.L.J. 1872, the Kerala High Court, in a matter where it is alleged that defamatory statements against complainant were made in a written statement filed before the Court held that, once a statement has been filed in a Court of Law, that statement can be taken as published. If such a statement amounts to per se defamatory, then it is the duty of the accused to establish that, they are justified in making such a statement under any of the exceptions to Section 499 of IPC. 

    In the case of Sanjay Mishra Vs. Government of NCT of Delhi & another, the Delhi High Court in paragraphs 11 and 12 of its judgment was pleased to observe as below:-
"11. In Sandyal V.Bhaba Sundari Debi 7 Ind.Cas.803:15 C.W.N. 995:14 C.L.J.31 the learned Judges, following the case of Augada Ram Shaha V. Nemai Chand Shaha 23 C.867;12 Ind.Dec.(n.s.)576, held that defamatory statements made in the written statement of a party in a judicial proceedings are not absolutely privileged in this country, and that a qualified privilege in this regard cannot be claimed in respect of such statements, unless they fall within the Exceptions to Section 499 of the Indian Penal Code. Undisputedly, the case of the petitioner was not in any of these Exceptions.
    12. For criminal purposes "publication" has a wider meaning than it has in civil law, since it includes a communication to the person defamed alone. The prosecution for defamation in criminal cases can be brought although the only publication is to the person defamed as it is very likely to provoke a breach between the persons involved...."
    
    In the case of Thangavelu Chettiar Vs. Ponnammal reported in AIR 1966 Mad 363, the Madras High Court was pleased to observe that, there can be no doubt that the defamation contained in the plaint was published by the plaint being filed in the Court.[Para No.15]

02 October 2020

Husband is duty bound to maintain his dependants, regardless of his job and income

Insofar as the plea of the petitioner that he has no means to pay maintenance is concerned, it would be relevant to refer to the decision of the Hon'ble Supreme Court in Sumitra Devi vs Bhikan Choudhary, reported in [1985] 1 SCC 637, wherein, it has been held as follows:
“4.Now that the matter is going back to the original Court we think it appropriate to bring it to the notice of the learned Magistrate that under Section 125 of the CrPC even an illegitimate minor child is entitled to maintenance.
Husband is duty bound to maintain his dependants, regardless of his job and income

    Even if the fact of marriage is discarded, the minor child being found to be an illegitimate daughter of the respondent would be entitled to maintenance.”[Para no.13]


    The Hon'ble Supreme Court in Bakulbhai and another vs Gangaram & another, reported in 1988 SCC (1) 537 has held that even an illegitimate child is entitled for maintenance and the relevant portion of the judgment reads as follows:
“The other findings of the Magistrate on the disputed question of fact were recorded after a full consideration of the evidence an should have been left undisturbed in revision. No error of law appears to have been discovered in his judgment and so the revisional courts were not justified in making a reassessment of the evidence and substitute their own views for those of the Magistrate. (See Pathumma and another v. Mahammad, [1986] 2 SCC 585). Besides holding that the respondent had married the appellant, the Magistrate categorically said that the appellant and the respondent lived together as husband and wife for a number of years and the appellant No. 2 Maroti was their child. If, as a matter of fact, a marriage although ineffective in the eye of law, took place between the appellant No. 1 and the respondent No. 1, the status of the boy must be held to be of a legitimate son on account of s. 16(1) of the Hindu Marriage Act, 1955, which reads as follows:
"16(1). Notwithstanding that a marriage is null and void under Section 11, any child of such marriage who would have been legitimate if the marriage had been valid, shall be legitimate, whether such child is born before or after the commencement of the Marriage Laws (Amendment) Act, 1976 (68 of 1976), and whether or not a decree of nullity is granted in respect of that marriage under this Act and whether or not the marriage is held to be void otherwise than on a petition under this Act."

Oral evidence can be given about any fact which would invalidate or contradict the proved or registered document

In respect of registered document (Exh.35), learned Counsel for the appellant has submitted that it is a registered document and therefore, contents therein cannot be contradicted. Sections 91 and 92 of the Indian Evidence Act are material sections in respect of oral evidence of the documents reduced into writing. If the document is proved as per Section 91, then oral evidence as per Section 92 is not permitted to contradict the document but proviso (1) of Section 92 permits to contradict the document. It reads as under :
 92.Exclusion of evidence of oral agreement.-When the terms of any such contract, grant or other disposition of property, or any matter required by law to be reduced to the form of a document, have been proved according to the last section, no evidence of any oral agreement or statement shall be admitted, as between the parties to any such instrument or their representatives in interest, for the purpose of contradicting, varying, adding to, or subtracting from, its terms: 
Oral evidence can be given about any fact which would invalidate or contradict the proved or registered document
     Proviso  (1). - Any fact may be proved which would invalidate any document, or which would entitle any person to any decree or order relating thereto; such as fraud, intimidation, illegality, want of due execution, want of capacity in any contracting party, [want or failure] of consideration, or mistake in fact or law.
[Para No.16]

    As per Section 92 Proviso (1), evidence can be adduced to contradict the document. Learned Counsel for the respondents has pointed out the decision in the case of Vithal Saidu Lokhande (cited supra). This Court has held that oral evidence as per the provisions of Section 92 Proviso (1) is applicable and the defendants can adduce the oral evidence to contradict the document. This Court in the case of Vithal Saidu Lokhande (cited supra) has held that "Plea to invalidate any document proved in accordance with section 91 is available where a case is made out of fraud, intimidation, illegality, want of due execution, want of capacity in any contracting party, want or failure of consideration, or mistake in fact or law. It is further held that "proviso (1) of Section 92 permits leading of parol evidence of any fact which would invalidate any document, at the instance of any party to such document of their representatives in interest. Proviso (4) does not deal with the question of invalidating any document but it relates to the existence of any distinct subsequent oral agreement to rescind or modify any such contract, grant or disposition of property. It makes the parol evidence admissible to show that the prior written contract has been waived or replaced by subsequent oral agreement with a rider that, if a matter has been reduced into writing because the law requires it to be in writing for its validity, no oral evidence can be given of any subsequent agreement, rescinding or modifying it. It can only be waived, rescinded, modified or altered by another written agreement of equally solemn character. The rule applies to all registered instruments, whether or not, registration is compulsory under the law. "[Para No.17]

01 October 2020

Investigating Officer cannot withheld relevant evidence that would favour the accused and in such cases adverse inference can be drawn against prosecution

If it appears impossible to convict accused inspite of witnesses are presumed to be true without any cross examination, the accused deserves to be discharge



    The Hon'ble Supreme Court in the case of Manjeet Singh Khera Vs. State of Maharashtra: 2013 (9) SCC 276 held as under:
Investigating Officer cannot withheld relevant evidence that would favour the accused and in such cases adverse inference cam be drawn against prosecution

"........8. The Court also noticed that seizure of large number of documents in the course of investigation of a criminal case is a common feature. After completion of the process of investigation and before submission of the report to the Court under Section 173 Cr.P.C, a fair amount of application of mind on the part of the investigating agency is inbuilt in the process. These documents would fall in two categories: one, which supports the prosecution case and other which supports the accused. At this stage, duty is cast on the investigating officer to evaluate the two sets of documents and materials collected and, if required, to exonerate the accused at that stage itself. However, many times it so happens that the investigating officer ignores the part of seized documents which favour the accused and forwards to the Court only those documents which supports the prosecution. If such a situation is pointed out by the accused and those documents which were supporting the accused and have not been forwarded and are not on the record of the Court, whether the prosecution would have to supply those documents when the accused person demands them? The Court did not answer this question specifically stating that the said question did not arise in the said case. In that case, the documents were forwarded to the Court under Section 173(5) Cr.P.C. but were not relied upon by the prosecution and the accused wanted copies/inspection of those documents. This Court held that it was incumbent upon the trial court to supply the copies of these documents to the accused as that entitlement was a facet of just, fair and transparent investigation/trial and constituted an inalienable attribute of the process of a fair trial which Article 21 of the Constitution guarantees to every accused. We would like to reproduce the following portion of the said judgment discussing this aspect:
"21.The issue that has emerged before us is, therefore, somewhat larger than what has been projected by the State and what has been dealt with by the High Court. The question arising would no longer be one of compliance or non- compliance with the provisions of Section 207 Cr.P.C. and would travel beyond the confines of the strict language of the provisions of Cr.P.C. and touch upon the larger doctrine of a free and fair trial that has been painstakingly built up by the courts on a purposive interpretation of Article 21 of the Constitution. It is not the stage of making of the request; the efflux of time that has occurred or the prior conduct of the accused that is material. What is of significance is if in a given situation the accused comes to the court contending that some papers forwarded to the court by the investigating agency have not been exhibited by the prosecution as the same favours the accused the court must concede a right to the accused to have an access to the said documents, if so claimed. This, according to us, is the core issue in the case which must be answered affirmatively. In this regard, we would like to be specific in saying that we find it difficult to agree with the view taken by the High Court that the accused must be made to await the conclusion of the trial to test the plea of prejudice that he may have raised. Such a plea must be answered at the earliest and certainly before the conclusion of the trial, even though it may be raised by the accused belatedly. This is how the scales of justice in our criminal jurisprudence have to be balanced."[Para No.63]

30 September 2020

Chairman/Managing Director of a news channel/house can be held liable for publication of the offending news item only if he has any role in selecting the news and publishing the same with active knowledge and intent

Chairman/Managing Director of a news channel can be held liable for publication of the offending news item only if it can be shown that he was somehow concerned with publication of the defamatory news item and that he had active knowledge thereof. As held in S Nihal Singh & Ors. v. Arjan Das; 1983 Cri. L.J. 777, an individual cannot be asked to answer the charge of defamation merely because he happened to be the Chairman of a company which owns a newspaper, without there being any further evidence as regards his participation in the actual management and administration of the affairs of the company.[Para No.13]

    So, the whole concept of fastening liability hinges on knowledge. As held in Kalanithi Maran v. A Rathinaraj; 2017 SCC Online Mad 9723 and G K Mani v. New Generation Media Corporation (P.) Ltd; 2019 SCC Online Mad 8332, for fastening liability, what is of paramount importance is that knowledge has to be attributed to the accused person. In Kalanithi (supra), the petitioner is the Chairman-cum- MD of Sun TV Network Ltd. and the complaint was filed against him for telecasting an interview between the complainant and one person, on the allegation of falsity of the statement given in the news and consequently, the MD is equally responsible for telecasting such defamatory statement. The Hon'ble High Court held as below:-

Chairman/Managing Director of a news channel/house can be held liable for publication of the offending news item only if he has any role in selecting the news and publishing the same with active knowledge and intent
"Vicarious liability under Press and Registration of Books Act, 1867, is not applicable to electronic media. Therefore, only general rule is applicable in the present case. To attract the offence of defamation, the imputation must have been made with the knowledge or intention or at least with reason to believe that it will harm the person concerned."[Para No.14]

When applicant is arrayed as accused because he is the owner of vehicle involved in sand theft crime then without swaying into the controversy of manipulation/mismatching of engine/chassis number, vehicle can be returned u/s.457 to him

It is indeed a matter having unpleasant history. The vehicle was seized for allegedly carrying stolen sand and was intercepted and seized and admittedly since its seizure it is laying in the premises of the police station concerned. Admittedly, the applicant is being implicated being the owner of the tractor. If such is the state of affairs, in the normal course, there would not have been any difficulty in straight away handing over the vehicle to him subject to usual conditions. It is trite that the Supreme Court time and again has expressed futility in allowing detention of vehicles during the course of the trial. One can fruitfully referred to the decisions in the case of Smt. Basava and Sunderbhai (supra).[Para No.12]

When applicant is arrayed as accused because he is the owner of vehicle involved in sand theft crime then without swaying into the controversy of manipulation/mismatching of engine/chassis number, vehicle can be returned u/s.457 to him

    However as can be discerned, the matter has become complicated because of changes in the chassis and engine numbers appearing on the tractor. The panchnama under which the tractor was seized mentions that at the time of such seizure the chassis number was appearing as "0065110367V1DH" and the engine number was appearing as "CO6014709VIDK013B". Apparently no photograph of such number as they were appearing on the chassis and engine were taken. The petitioner had applied for release of the tractor earlier to the present attempt by filing Criminal M.A. No.569/2017 but it was rejected since the numbers obviously did not tally. He preferred Criminal Revision No.220/2017. It was dismissed but a direction was given to the RTO to inspect and to register the vehicle. Pursuant to such a direction the Magistrate called upon the RTO concerned to undertake the inspection and to register the tractor since it was not registered till then with the RTO. It is apparent that the RTO thereafter undertook the inspection on 26.12.2018 (page 40) and submitted a report on the same date to the Superintendent of the Civil Court at Sillod. In addition he sent another letter dated 08.01.2019 (page 43). It was mentioned that the tractor was having chassis number and engine number which tally with the original numbers mentioned by the dealer on the Tax Invoice (Exhibit B). However, he also notice that the tractor was not in a road worthy condition and therefore for the reasons mentioned therein he was unable to register it because of various provisions contained in the Motor Vehicles Act and the Rules framed thereunder. It is in the backdrop of such state of affairs that now we are faced with the situation.[Para No.13]

29 September 2020

For the purpose of deciding the period of notice of termination of lease, only the purpose for which the property was let out has to be seen and subsequent change in user would not change the nature of lease

Coming to the issue regarding validity of notice issued under Section 106 of the Act, it would be noticed that the notice issued was dated 27.06.2015 and the tenancy was terminated w.e.f. 30.06.2015 i.e. within three days, however, the suit was filed on 04.08.2015 i.e. after about one month of giving of the notice. The provisions of Section 106 of the Act, inter-alia, provides that a lease of immovable property is terminable on part of either lessor or lessee by 15 days' notice and in case of lease of immovable property for agriculture or manufacturing purposes by six months' notice. However, sub-section (3) of Section 106 of the Act provides that a notice shall not be deemed to be invalid merely because the period mentioned therein falls short of the period specified under sub-section (1), where a suit or proceeding is filed after the expiry of the period mentioned in that sub-section and therefore, if it is found that the lease is for the purpose other than manufacturing purpose merely giving a three days' notice would not invalidate the proceedings.


    The appellant himself in his statement has clearly admitted that he was a tenant in the shop since 1976, in the year 1976, his shop was that of cloth in the name of Shankar Cloth Store, he changed his business in the year 1990-91 and started work of dye cutting of jewellery in the name of Mankad Jewellers.


  From the above statement, it is apparent that when the shop was let out in the year 1976, the same was neither for agriculture purpose nor for manufacturing purpose as the appellant was selling cloth only, however, in the year 1991, the use of shop was changed to manufacturing purpose. Whether in these circumstances, the issuance of notice by treating the lease for purpose other than manufacturing purpose i.e. notice for less than six months / filing the suit before expiry of six months from the date of notice would be in compliance of provisions of Section 106 of the Act?


   The various Courts have dealt with the said aspect and have come to the conclusion that the relevant purpose of lease under Section 106 of the Act is the purpose for which the lease was initially granted and subsequent change would not effect duration of the notice.


For the purpose of deciding the period of notice of termination of lease, only the purpose for which the property was let out has to be seen and subsequent change in user would not change the nature of leass

   Bombay High Court in the case of Ruprao Nagorao Mahulkar (supra), inter-alia, observed as under :-

"16. I, however, think that for the purposes of section 106 what is relevant is the purpose for which the lease was obtained at the time when the lease was obtained. A subsequent change of use and subsequent employment of the premises taken on lease for a manufacturing purpose where they were not at the commencement taken for that purpose would not entitle a lessee to take advantage of section 106. The purpose of the lease must be found arid ascertained with reference to the time when the lease was brought into existence. This seems to me also consistent and in accordance with the other provisions of the Transfer of Property Act and law in that behalf. Section 108 (a) of the Transfer of Property Act speaks of rights and liabilities of the lessees. In the absence of a contract of local usage to the contrary, a lessee is under an obligation by virtue of section 108 (a) of the Transfer of Property Act to use the leased premises for the purpose for which they were let and is obliged not to use them "for the purpose other than for which it was leased." To do so therefore, would be a, breach of the terms and conditions of the lease which are implied in the absence of the contract to the contrary. Section 111 (g) of the Transfer of Property Act provides that where a lease permits a re-entry on breach of a condition, then the lessor would be entitled to determine the lease and re- enter. Section 106 of the Transfer of Property Act also provides for termination of leases. A breach of terms and conditions of the lease would entitle a lessor to terminate the lease and to re-enter. In Devji's case (supra) Justice P.B. Mukherjee also observed that "the lease for manufacturing purpose must be a lease which at its inception is for that purpose. The lease at the time of the grant by the landlord must be impressed with the purpose of manufacture." Per contra-where it is not so impressed and where that was not the purpose at the time when the lease was commenced, the lessee would not be entitled to take advantage of section 106 of the Transfer of Property Act."

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