It is not in dispute that while the claim petition was pending before the Tribunal, the claimants in the month of June 2013 filed a transfer petition seeking transfer of the claim petition from MACT, Kishtwar to MACT, Jammu which was finally dismissed as not pressed by this Court vide order dated 18.02.2016. The said transfer petition, thus, remained pending for almost three years and during this period, the proceedings in the claim petition remained stayed. According to learned counsel for the insurer, no interest should have been paid for this period as the claimants cannot be given the benefit of their own wrong.[Page No.35]
Per contra, Mr. Bhat submits that the interest awarded by the Tribunal is not a penal interest, but is only a compensation for the amount withheld and, therefore, the Tribunal was right in awarding interest even for the aforesaid period when the proceedings in the claim petition remained suspended. Reliance is placed upon the judgment of Hon‟ble Supreme Court rendered in the case of Alok Shankar Pandey v. Union of India (AIR 2007 SC 1198) [Para No.36]
I have given my thoughtful consideration to the plea raised and am of the view that, although in the commercial parlance, the interest is ordinarily not a penalty or punishment, but is a normal accretion on capital, yet the same cannot be applied in the cases of claims under the Motor Vehicles Act. Granting interest to a party, who is guilty of protracting the litigation, would be encouraging the parties to indulge in unnecessarily delaying the litigation. It is well settled that a person cannot be permitted to take the benefit of his own wrong. In the instant case, determination of compensation by the Tribunal was delayed by almost three years due to filing of a transfer petition by the claimants which later on was not pressed and was dismissed by this Court. In that view of the matter, I am inclined to accept the submission of learned counsel for the insurer that the claimants should not be held entitled to interest for the period from June 2013 to 18th February 2016. In the light of discussion made hereinabove the appeal of the insurer is partly allowed and the award is modified to the following extent.[Page No.37]
It goes without saying that matrimonial cruelty occurs within the precincts of the matrimonial home of the wife and she hardly shares her ordeals with someone other than her parents and her near relatives. As a result overwhelming evidence may not be available before the court in a case under Section 498A IPC. But that does not absolve the prosecution from the burden of proving the charge by cogent, coherent and persuasive evidence.[Para No.19]
In the case in hand, the matter was reported to police by the father of the victim after he brought back his daughter from her matrimonial home. It is apparent on the face of the record that the victim lived with her husband in her matrimonial home only for about 6 months after their marriage. Except the omnibus statement of the victim and her parents that the appellant demanded cash from the parents of the victim and tortured her for fulfillment of his demand, no particular incident of any kind of physical or mental torture meted out to the victim or any other instance of abuse in her matrimonial house has been proved against the appellant. In this regard, the Apex Court, while dwelling on similar issue in Manju Ram Kalita vs. State of Assam reported (2009) 13 SCC 330 held as under:
"21. Cruelty" for the purpose of section 498A, IPC is to be established in the context of section 498A, IPC as it may be a different from other statutory provisions. It is to be determined / inferred by considering the conduct of the man, weighing the gravity or seriousness of his acts and to find out as to whether it is likely to drive the woman to commit suicide etc. It is to be established that the woman has been subjected to cruelty continuously / persistently or at least in close proximity of time of loading the complaint. Petty quarrels cannot be termed as 'cruelty' to attract the provisions of section 498A, IPC. Causing mental torture to the extent that it becomes unbearable may be treated as cruelty."[Para No.26]
In the case of Prwitish Datta and ors vs. State of Tripura reported in (2014) 1 TLR 848 this High Court held that every case of harassment of the wife either by the husband or his family members cannot be termed as cruelty within the meaning of Section 498A unless the conduct of the husband or his family members, as the case may be, is willful and of such a grave nature which is likely to drive the wife to commit suicide or to cause grave injury or danger to her life, limb or health whether mental or physical. Similarly, in Gautam Nama vs. State of Tripura reported in (2013) 2 TLR 134, this High Court observed that
on the basis of mere omnibus statement without specific evidence regarding the particulars of the instances of such torture or cruelty, the accused cannot be held guilty under Section 498A IPC.In the case of Dhananjoy Shil vs. State of Tripura reported in (2013) 2 TLR 1060 also it was held by this Court that a single incident of assault may not amount to an offence under Section 498A IPC because cruelty for the purpose of Section 498A is different from other statutory provisions and it is to be established against the appellant that he subjected his wife to cruelty continuously and persistently. It was also held that petty quarrels cannot be termed as cruelty to attract the provisions of Section 498A IPC.[Para No.27]
Accused convicted for the offences punishable u/s.498 A, 504, 506 r/w 34 of IPC - matrimonial dispute - during the pendency of appeal against conviction accused and informant arrived at settlement and decided to end the dispute - sought quashing of proceeding u/s.482 - judgment of conviction quashed.
It is undisputed that during the pendency of the appeal challenging the judgment of conviction, the matrimonial dispute between the applicant no.1 and the applicant no.7 stands settled. As observed in Saloni Rupam Bhartiya { 2015 (4) RCR (Criminal) 172} and Ramesh s/ o Shaligram Dode & Ors. {2014 ALL MR (Cri) 282.}, if during the pendency of the proceedings the matrimonial dispute between the parties stands settled, the Court can quash the criminal proceedings in their entirety by invoking powers under Section 482 of the Code. We find the present case to be a fit one to exercise such jurisdiction.[Para No.5]
While in the additional status report the State says that
“.... Granting of bail at this early stage may send an adverse message in the society and such crimes should not
be allowed to happen in the national capital. ....”.
(Emphasis supplied)
this court is of the view that that cannot be basis for denying bail, if the court is otherwise convinced that no purpose in aid of investigation and prosecution will be served by keeping the accused in judicial custody. Prison is primarily for punishing convicts ; not for detaining undertrials in order to send any ‘message’ to society. The remit of the court is to dispense justice in accordance with law, not to send messages to society. It is this sentiment, whereby the State demands that undertrials be kept in prison inordinately without any purpose, that leads to overcrowding of jails ; and leaves undertrials with the inevitable impression that they are being punished even before trial and therefore being treated unfairly by the system. If at the end of a protracted trial, the prosecution is unable to bring home guilt, the State cannot give back to the accused the years of valuable life lost in prison. On the other hand, an accused would of course be made to undergo his sentence after it has been awarded, after trial. [Para No.16]
Notice u/s. 148 of Income Tax Act issued to the deceased assessee requiting details of finantial transactions made by him in the past - Income tax department contacted the daughter of deceased on phone - they transferred the proceeding on her PAN - order passed against her - order challenged in writ petition
It is well settled law that an alternative statutory remedy does not operate as a bar to maintainability of a writ petition in at least three contingencies, namely, where the writ petition has been filed for the enforcement of any of the Fundamental Rights or where there has been a violation of the principles of natural justice or where the order or notice or proceedings are wholly without jurisdiction or the vires of an Act is challenged. [See Whirlpool Corporation Vs. Registrar of Trade Marks, Mumbai and Others, (1998)8 SCC 1].[Para No.23]
Further, the fact that an assessment order has been passed and it is open to challenge by way of an appeal, does not denude the petitioner of its right to challenge the notice for assessment if it is without jurisdiction. If the assumption of jurisdiction is wrong, the assessment order passed subsequently would have no legs to stand. If the notice goes, so does the order of assessment. It is trite law that if the Assessing Officer had no jurisdiction to initiate assessment proceeding, the mere fact that subsequent orders have been passed would not render the challenge to jurisdiction infructuous. In Calcutta Discount Co. Ltd. Vs. Income Tax Officer, Companies District I Calcutta and Another, AIR 1961 SC 372 the Supreme Court has held as under:-
"27. .....It is well settled however that though the writ of prohibition or certiorari will not issue against an executive authority, the High Courts have power to issue in a fit case an order prohibiting an executive authority from acting without jurisdiction. Where such action of an executive authority acting without jurisdiction subjects or is likely to subject a person to lengthy proceedings and unnecessary harassment, the High Courts, it is well settled, will issue appropriate orders or directions to prevent such consequences.
28. Mr Sastri mentioned more than once the fact that the Company would have sufficient opportunity to raise this question viz. whether the Income Tax Officer had reason to believe that underassessment had resulted from non-disclosure of material facts, before the Income Tax Officer himself in the assessment proceedings and if unsuccessful there before the appellate officer or the Appellate Tribunal or in the High Court under Section 66(2) of the Indian Income Tax Act. The existence of such alternative remedy is not however always a sufficient reason for refusing a party quick relief by a writ or order prohibiting an authority acting without jurisdiction from continuing such action.
29. In the present case the Company contends that the conditions precedent for the assumption of jurisdiction under Section 34 were not satisfied and come to the court at the earliest opportunity. There is nothing in its conduct which would justify the refusal of proper relief under Article 226. When the Constitution confers on the High Courts the power to give relief it becomes the duty of the courts to give such relief in fit cases and the courts would be failing to perform their duty if relief is refused without adequate reasons....."[Para No.24]
With regard to the charge of Section 498A IPC against the appellant, the learned trial Judge did not assign any reason in his judgment as to why he found the appellant guilty of offence punishable under Section 498A IPC. It is apparent on the face of the record that the appellant as well as his in laws belonged to the poor strata of society. It was, therefore, not unlikely that there would be discord and differences in the domestic life of the appellant. Petty quarrels arising out of such discord and differences in conjugal life would not amount to cruelty within the meaning of clause (a) of Section 498A IPC unless it is proved that the cruelty meted out to the wife was a willful conduct of the appellant which was likely to affect her normal mental frame and drive her to commit suicide out of depression or to cause grave injury or danger to her life, limb or her mental or physical health. For establishing the commission of offence under clause (b) of Section 498A IPC, it has to be proved that the appellant or his relatives subjected his deceased wife to harassment with a view to coercing her or her relatives to meet his demands for dowry or such harassment was made due to the failure of her or her relatives to meet such demand. Now, we have to ascertain from the evidence recorded by the trial court as to whether prosecution has been able to bring home the charge under Section 498A IPC to the accused. [Para No.47]
In the case of Prwitish Datta and Ors.(supra) this High Court held that every case of harassment either by the husband or his family members to the wife cannot be termed as cruelty within the meaning of Section 498A unless the conduct of the husband or his family members, as the case may be, is wilful and of such a grave nature which is likely to drive the wife to commit suicide or to cause grave injury or danger to her life, limb or health whether mental or physical. Similarly, in Gautam Nama (supra) which has also been relied upon by learned counsel of the appellant, this High Court observed that on the basis of mere omnibus statement without specific evidence regarding the particulars of the instances of such torture or cruelty, the accused cannot be held guilty under Section 498A IPC. In the case of Dhananjoy Shil (supra) also it was held by this Court that a single incident of assault may not amount to an offence under Section 498A IPC because cruelty for the purpose of Section 498A is different from other statutory provisions and it is to be established against the appellant that he subjected his wife to cruelty continuously and persistently. It was also held that petty quarrels cannot be termed as cruelty to attract the provisions of Section 498A IPC.[Para No.48]
Further, on careful reading of the charge, it appears that the Court has framed the charges of offences under Sections 409, 420, 467, 468, 471 and 120-B of IPC. On reading of provisions of IPC, of which charges are framed against the petitioners as well as principle laid down in this regard by the Hon'ble Apex Court in its various pronouncements, before applying the Section 409 of IPC, consideration of Section 405 of IPC is necessary. Bare reading of Section 405 IPC shows that the accused is either entrusted with a property or acquires dominion over the property and misappropriates the same dishonestly or converts the same for its own use or dishonestly uses or disposes of that property. In criminal breach of trust, the person comes into possession of a property honestly but he develops dishonest intention subsequent to his acquiring dominion over the property by way of entrustment or otherwise. To constitute the offence of criminal breach of trust following ingredients must be fulfilled:-
(i) There has to be some property.
(ii) The said property must be entrusted to someone with or without any contract.
(iii) The dominion of the property was shifted from complainant to the accused.
(iv) The accused person refuses to return/restore the said property to the rightful owner when demanded.
(v) The accused having misappropriated/converted to its own use/disposed the property refuses to restore the property to the complainant/lawful owner.
15. When offence of criminal breach of trust committed by any public servant or by banker merchant or agent then they shall be punished under Section 409 of IPC.
16. Further in order to apply section 420 IPC, the essential ingredients are:-
(i) cheating;
(ii) dishonestly inducement to deliver property or to make, alter or destroy any valuable security or anything which is sealed or signed or is capable of being converted into a valuable security, and
(iii) mens-rea of the accused at the time of making the inducement."
17. Further, under the IPC, the cheating is defined in Section 415 and on reading of the said provision in the light of legal verdicts passed in this regard, the following ingredients are necessary to constitute the offence of cheating :-
(1) Deception of any person.
(2) (a) Fraudulently or dishonestly inducing that person;
(i) to deliver any property to any person; or
(ii) to consent that any person shall retain any property; or
(b) intentionally inducing that person to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property.
A perusal of this impugned summoning order indicates that learned Magistrate had noted in the impugned order the contents of complaint and evidences u/s 200 and 202 Cr.P.C. but had neither any discussion of evidence was made, nor was it considered as to what overt act had allegedly been committed by accused. This contention of learned counsel for the applicants cannot be ruled out that leaned counsel have noted the contents of complaint and statements without considering its probability or prima facie case, and whether he had actually considered statements u/s 200, 202 Cr.P.C. or the documents of the original. At stage of summoning, the Magistrate is not required to meticulously examine or evaluate the evidence. He is not required to record detailed reasons. A brief order which indicate the application of mind is all that is expected of him at the stage. [Para No.7]
8. But in impugned order there is nothing which may indicate that learned Magistrate had even considered facts of the case in hand before passing the summoning order. Impugned order clearly lacks the reflection of application of judicial discretion or mind. Nothing is there which may show that learned Magistrate, before passing of the order under challenge had considered facts of the case and evidence or law. Therefore it appears that, in fact, no judicial mind was applied before the passing of impugned order of summoning. Such order cannot be accepted as a proper legal judicial order passed after following due procedure of law. [Para no.8]
9. In ruling "M/s. Pepsi Food Ltd. & another vs. Special Judicial Magistrate & others, 1998 UPCrR 118" Hon'ble Supreme Court held :-
"Summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. It is not that the complainant has to bring only two witnesses to support his allegations in the complaint to have the criminal law set into motion. The order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. He has to examine the nature of allegations made in the complaint and the evidence both oral and documentary in support thereof and would that be sufficient for the complainant to succeed in bringing charge home to the accused. It is not that the Magistrate is a silent spectator at the time of recording of preliminary evidence before summoning the accused. Magistrate had to carefully scrutinize the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations or otherwise and then examine if any offence is prima facie committed by all or any of the accused."
Now, the law in relation to the right of an accused to bail in the event charge-sheet is not filed within the stipulated time-frame under section 167(2) Cr.P.C. is well settled. In Achpal alias Ramswaroop & Anr. vs. State of Rajasthan : (2019) 14 SCC 599, the Supreme Court has reiterated the following position of law:
"11. The law on the point as to the rights of an accused who is in custody pending investigation and where the investigation is not completed within the period prescribed under Section 167(2) of the Code, is crystallised in the judgment of this Court in Uday Mohanlal Acharya v. State of Maharashtra. This case took into account the decision of this Court in Hitendra Vishnu Thakur v. State of Maharashtra, Sanjay Dutt (2) v. State and Bipin Shantilal Panchal v. State of Gujarat. Pattanaik, J. (as the learned Chief Justice then was) speaking for the majority recorded conclusions in para 13 of his judgment. For the present purposes, we may extract Conclusions 3 and 4 as under: (Uday Mohanlal Acharya case, SCC p. 473, para 13) "13. ... 3. On the expiry of the said period of 90 days or 60 days, as the case may be, an indefeasible right accrues in favour of the accused for being released on bail on account of default by the investigating agency in the completion of the investigation within the period prescribed and the accused is entitled to be released on bail, if he is prepared to and furnishes the bail as directed by the Magistrate.
4. When an application for bail is filed by an accused for enforcement of his indefeasible right alleged to have been accrued in his favour on account of default on the part of the investigating agency in completion of the investigation within the specified period, the Magistrate/court must dispose of it forthwith, on being satisfied that in fact the accused has been in custody for the period of 90 days or 60 days, as specified and no charge-sheet has been filed by the investigating agency. Such prompt action on the part of the Magistrate/court will not enable the prosecution to frustrate the object of the Act and the legislative mandate of an accused being released on bail on account of the default on the part of the investigating agency in completing the investigation within the period stipulated."
Offence u/s. 420, 406, 409, 465, 467, 468, 471, 120-B of IPC and 7 & 13(1) A of Prevention of Corruption Act, 1988 - Chargesheet against one accused filed on 23.01.2019 - applicant-accused shown as absconded - on 23.11.2019 applicant-accused surrendered before the court - application for default bail u/s.167(2) of Cr.P.C. filed om 24.02.2020
Held: It is not essential for a person to be arrested before chargesheet can be presented against him. The only requirement for applicability of the proviso to Section 167(2) Cr.P.C. is that investigation should be pending against the petitioner-accused and no investigation can be said to be pending if chargesheet is filed before his arrest or surrender before the court.
A perusal of the challan presented on 23.01.2019, a copy whereof is annexed as Annexure P-2, shows that list of the case property had been filed therewith along with a list of witnesses. Thereafter, the facts of the case have been narrated. The last few lines are reproduced:-
"The warrants have been got issued from the Learned Illaqa Magistrate against Sandeep Kumar son of Jagdish Chander r/o Panj Ke Utar Police Station Guruharsahai, Rishu Matneja w/o Sandeep Kumar r/o Panj Ke Utar Police Station Guruharsahai, Jaswinder Pal Singh son of Gurmeet Singh r/o Dashmesh Nagar Jalalabad, Jasmeet Singh son of Amarjeet Singh r/o Jalalabad. Hansa Singh, Inspector Grade 2, resident of Shamshabad, District Fazilka, Harpreet Singh son of Gurmeet Singh resident of Dashmesh Nagar, Jalalabad and after arresting them supplementary challan would be presented in the court and after getting evidence of involvement of staff of Punjab National Bank, a separate supplementary challan would be submitted against them. The pending enquiry of the case after taking the record and thereafter supplementary challan shall be presented. As per the evidence, the investigation till and the evidence collected on file challan under Sections 420, 465, 467, 468, 471, 406, 120-B IPC against accused Sandeep Kumar is required to be presented and the same after being prepared against Sandeep Kumar under Sections 420, 465, 467, 468, 471, 406, 120-B IPC is being presented to the Court. The witnesses mentioned
in Column no.6 shall give their statements as required."[Para No.11]
From the aforementioned reproduction from the challan it is evident that evidence necessary for commencement of trial against the petitioner and his co-accused has/had been collected by the investigating agency. The petitioner was kept in column No.2 only because he had not been arrested as is the practice in the State of Punjab. Learned counsel for the petitioner has not refuted the submission of the learned State counsel that such a practice exists in the State of Punjab. Warrants of arrest had been requested for and this would not have been the case if the petitioner had not been found guilty. The challan dated 24.02.2020 against the petitioner was only a formality. In Dinesh Dalmia (supra) it has been held as follows:-
Electronic Evidence obtained illegally - Petition for divorce u/s. 13(1)(ia) of The Hindu Marriage Act - CCTV footage recorded without knowledge of wife - In recording wife was found to be talking on phone with her lady friend in a manner derogatory and defamatory to the husband - Husband produced CD of this recording as the evidence in divorce proceeding - Wife in her written statements opposed that CD to be tampered with and inadmissible as it is procured in breach of her right of privacy - After this objection husband made an application to family court to get the genuineness of CD examined from Forensic Lab - Family allowed that application and the same challenged by wife before High Court
Can CCTV audio-video secretly recorded by a spouse be permitted to be used against other spouse in a matrimonial dispute? Held: In matrimonial dispute, secret recording is admissible in evidence if found to be relevant to the facts-in-issue; and the other party can initiate legal action action the party for adopting illegal means; but such action would not render the illegally obtained evidence inadmissible if it is otherwise relevant for the purpose of deciding the matrimonial dispute between the parties.
The sequitur to the aforesaid constitutional and legal landscape is that :
(a) The settled rule, purely from the standpoint of the law of evidence, is that evidence is admissible so long as it is relevant, regardless of how it is collected. Digressing from this settled position would have wide ramifications and consequences; and would be a serious hindrance to judicial proceedings across the board, in several foreseeable and unforeseeable ways. On the other hand, the possible misuse of this rule of evidence, particularly in the context of the right to privacy, can be addressed by prudent exercise of judicial discretion by a court not at the time of receiving evidence but at the time of using evidence at the stage of adjudication ;
How to prove photos and screenshot sent by one person to another? (Mode of proof)
Can snapshot of chat from a mobile handset be read in evidence without producing that mobile handset?
Matrimonial dispute - divorce sought by husband - Ground of adultery - Husband received photos, telephonic conversation and snapshot of chat between wife and her lover - Electronic evidence - Mode of proof - compliance to be made
Held: Witness produced certificate u/s.65B and deposed that he had taken the print outs from the mobile phone, deserves to be read in evidence.
Learned counsel for the wife contended that the photographs placed on the file as Annexures A-1 to A-8, do not stand duly proved on the record as required under Section 65-B of the Indian Evidence Act, 1872 (for short 'the Act of 1872') and in support of this contention, he relied upon Anvar P.V. vs. P.K. Basheer and others, 2015(1) SCC (Civil) 27, wherein the Hon'ble Apex Court observed that "in case of CD, VCD, chip, etc., the same would be accompanied by the certificate in terms of Section 65B obtained at the time of taking the document, without which, the secondary evidence pertaining to that electronic record, was inadmissible."[Para No.9]
However, we do not find this contention to be tenable because PW-4 Sunil Kumar, the photographer, tendered the original certificate under Section 65B of the Act of 1872 on the record as Ex.PW-4/A and he also specifically deposed that he had taken the print out of the photographs, i.e. Annexures A-1 to A-8, from the internal memory of the mobile phone brought to his shop by the husband. Moreover, in a subsequent verdict, as rendered by the Hon'ble Supreme Court in the case titled as State by Karnataka Lokayukta Police Station, Bengaluru vs M. R Hiremath, 2019 (3) SCC (Cri) 109, it has been held while referring to the above- discussed observations, as made in Anvar P.V.'s case (supra), that :-
Refusal by Hindu-wife to wear 'sindoor' and preventing husband performing duties towards his parents; is cruelty against husband.
Upon due perusal of the judgment it is seen that the discussion of the court below does not refer to certain pertinent evidences, which were brought before the Court by the contesting parties while adducing evidences. As discussed above, it is not disputed by the respondent wife that there was indeed an agreement entered into by and between the appellant husband and the respondent wife whereby the appellant was required to provide separate accommodation to the respondent wife in a rented house away from the matrimonial house and that the appellant's family members were not to be permitted to come and visit them. The respondent wife categorically admitted in her cross- examination about the presence of the said clause in the said agreement. It is also seen from the evidence that the respondent had filed another case before Digboi Police Station being Digboi P.S. Case No.230/2013, under Sections 471/420 IPC pending before the SDJM, Margherita, District Tinsukia wherein, it was submitted at the bar that charge sheet has been filed against the petitioner and other accused. PW1/appellant also adduced in his evidence that the respondent had refused to wear 'sakha and sindoor' any more. Such statement was not confronted to the appellant during the cross-examination, and accordingly, the same remained uncontroverted and is therefore an evidence material for the purpose of this proceedings. Under the custom of Hindu Marriage, a lady who has entered into marriage according to Hindu rituals and customs, and which has not been denied by the respondent in her evidence, her refusal to wear ' sakha and sindoor' will project her to be unmarried and/or signify her refusal to accept the marriage with the appellant. Such categorical stand of the respondent points to the clear intention of the respondent that she is unwilling to continue her conjugal life with the appellant. Under such circumstances compelling the appellant husband to continue to be in matrimony with the respondent wife may be construed to be harassment inflicted by the respondent upon the appellant and his family members.
This evidence although available before the Family Court during the evidence adduced, was not taken into account during the discussion in the impugned judgment. As such the Family Court erred in evaluating the evidence in the proper perspective. During the course of hearing it was submitted at the bar that the criminal proceedings pursuant to filing of Digboi P.S. Case No.159/2013, under Section 498(A) IPC against the appellant has been dismissed as the informant, namely the respondent wife was not pursuing the said proceeding. As such the allegation of subjecting the respondent wife to cruelty was not sustained. Such acts of lodging criminal cases on unsubstantiated allegations against the husband and/or the husband's family members amounts to cruelty as held by the Supreme Court. In this context, the Hon'ble Supreme Court in a recent judgment being Rani Narasimha Sastri vs. Rani Suneela Rani, 2019 SCC Online SC 1595 has held that filing of criminal cases like case under Sections 498(A) IPC etc. against the husband and the family members and which are subsequently dismissed/rejected by the Family Court, is sufficient to be construed as an act of cruelty by the wife. The Hon'ble Supreme Court has held as under:.....[Para No.15]
Arbitration proceeding - Counter claim by respondent - counter claim dismissed - Award challenged u/s. 34 in District Court - District Court set aside that dismissal-award - consequences of such decision:
Held:
The Court which exercises jurisdiction u/s. 34 of The Arbitration and Conciliation Act is not a court of first appeal under the provisions of the C.P.C. hence the setting aside of an arbitral award rejecting a claim/counter claim does not result in the claim/counter claim which was rejected by the Arbitrator being decreed as a result of the judgment of the court in a petition under Section 34 of The Arbitration and Conciliation Act.
So, it follows that the Award of the Arbitral Tribunal ensures to the benefit of the petitioners being a successful party. It is the successful party who can seek its enforcement under Section 36 of the Act and also secure the Award under section 9 of the Act and not the respondent being the losing party. This position of law is well settled by the judgment of the Bombay High Court as upheld by the Supreme Court in case of Dirk (Supra) wherein in paragraphs 13 & 14, the Court has held as under:
Medical evidence Vs. oral evidence: which evidence has to be accepted?
Thus, the position of law in cases where there is a contradiction between medical evidence and ocular evidence can be crystallised to the effect, that though the ocular testimony of a witness has greater evidentiary value vis-à-vis medical evidence, when medical evidence makes the ocular testimony improbable, that becomes a relevant factor in the process of the evaluation of evidence. However, where the medical evidence goes so far that it completely rules out all possibility of the ocular evidence being true, the ocular evidence may be disbelieved.
40.In the instant case as referred to hereinabove, as many as five assailants attacked one person but the prosecution case from the very inception of FIR, is very clear that accused-appellant Darshan Pasi shot fire when the deceased was sitting under the tree, causing him injury on chest and left palm, Lachiman Pasi and Sahai Pasi fired on his neck and skull inside boundary wall and Maharaj Deen and Gaya Prasad assaulted the deceased with banka. This fact is categorically substantiated by P.W.-1 in his oral testimony. The postmortem report reveals no firearm injury, either on neck or skull or any other part of the dead body, whereas remaining injuries relate to sharp edged weapon, which may be attributed to alleged use of banka by Maharaj Deen and Gaya Prasad.
Necessary party to suit - Sec. 2 (s) of Protection of Women from Domestic Violence Act - Scope of definition of Shared Houshold - House property is exclusively own by father-in-law - After marriage daughter-in-law started to live in that house with her husband - Daughter-in-law started harassing her in-laws - father-in-law asked his son to vacate the house - Son alongwith wife left the house - After sometime daughter-in-law came bake and forcibly entered in that house and refused to vacate the house - Father-in-law filed a suit for eviction against his daughter in law without impleading his son as defendant.
Is the son necessary party to eviction suit filed against daughter-in-law?
Does the property owned by in-laws; in which their son was permitted to live with his wife, falls under the definition of Shared Household as defined u/s.2(s) of PWDV Act?
Held:
In-laws can evict Daughter-in-law from their house without seeking decree of eviction against their son. House exclusively owned by in-laws is not Shared Houshold under PWDV Act. Daughter-in-law is merely a licensee.
Even if the order, impugned in the Writ Petition, is, as held by the learned Single Judge, a transfer order, it is well settled that transfer from one place to another is an incidence of service, and is made in the exigencies of administration. No person can claim that he should not be transferred from one place to another. No government servant has a legal right to be posted forever at any one particular place or at a place of his choice. (Kendriya Vidyalaya Sangathan v. Damodar Prasad Pandey (2004) 12 SCC 299; Major General J.K. Bansal v. Union of India (2005) 7 SCC 227 ; Union of India v. Janardhan Debanath (2004) 4 SCC 245; National Hydroelectric Power Corpn. Ltd. v. Shri Bhagwan (2001) 8 SCC 574). Transfer of an employee, appointed to a particular cadre of transferable posts, is an incident of service and is made in administrative exigencies. No government servant has neither a legal right to be posted at any particular place nor any choice in the matter. Transfer is necessary in public interest and efficiency in public administration, and is, normally, not to be interfered with by Courts/Tribunals. (Gujarat Electricity Board v. Atmaram Sungomal Poshani (1989) 2 SCC 602; Public Services Tribunal Bar Association v. State of U.P (2003) 4 SCC 104).[Para No.7]
Failure to make payment of compensation payable under contract is not equal to breach of contract.
Paragraph 1103 of Halsbury's distinguishes between kinds of money payments. Damages, as dealt with earlier, are said to be distinguishable from debts and from a sum of money payable under a contractual liability to pay a sum on a given event. In fact, damages are sought to be distinguishable from compensation and from a penalty and from costs. In the present case, once we come to the conclusion that the amount awarded is not damages and for breach of contract, the petitioner-Niko has no case whatsoever to challenge the award. It will be also beneficial to consider Anson's on the Law of Contract, which, in Chapter 18, deals with actions to recover an agreed sum. The claim in that case was for a liquidated amount and the defendant was obliged under the contract to pay money. Although in that sense, it is said to be similar to specific performance, it is distinguishable and does not attract the same bar in law. The Law of Contract draws a clear distinction between a claim for an agreed sum and a claim for damages for breach of contract. The claimant need not prove loss where a claim is for payment of an agreed sum and remoteness of damages and mitigation of loss are irrelevant in such situations. In the instant case, the formula is meant to provide for such payment. The application of the formula is a matter which was before the tribunal and which the tribunal has considered. The formula was admittedly applicable being within the contractual scope and was not extraneously sourced. There is no question of any further proof of loss caused. [Para No.54]
Now, let us examine the decisions which have a bearing on the point in issue.
11. In State of Bihar v. Ramesh Singh MANU/SC/0139/1977 : (1977) 4 SCC 39 : 1977 SCC (Cri) 533 considering the scope of Sections 227 and 228 of the Code, it was held that at the stage of framing of charge it is not obligatory for the judge to consider in any detail and weigh in a sensitive balance whether the facts, if proved, would be incompatible with the innocence of the accused or not. At that stage, the court is not to see whether there is sufficient ground for conviction of the accused or whether the trial is sure to end in his conviction. Strong suspicion, at the initial stage of framing of charge, is sufficient to frame the charge and in that event it is not open to say that there is no sufficient ground for proceeding against the accused.
12. In Supdt. and Remembrancer of Legal Affairs, W.B. v. Anil Kumar Bhunja MANU/SC/0266/1979 : (1979) 4 SCC 274 : 1979 SCC (Cri) 1038 : (1980) 1 SCR 323 a three-Judge Bench held that the Magistrate at the stage of framing charges had to see whether the facts alleged and sought to be proved by the prosecution prima facie disclose the commission of offence on general consideration of the materials placed before him by the investigating police officer. (emphasis supplied) Though in this case the specific question whether an accused at the stage of framing of charge has a right to produce any material was not considered as such, but that seems implicit when it was held that the Magistrate had to consider material placed before it by the investigating police officer.
13. In State of Delhi v. Gyan Devi MANU/SC/0649/2000 : (2000) 8 SCC 239 : 2000 SCC (Cri) 1486 this Court reiterated that at the stage of framing of charge the trial court is not to examine and assess in detail the materials placed on record by the prosecution nor is it for the court to consider the sufficiency of the materials to establish the offence alleged against the accused persons.
14. In State of M.P. v. S.B. Johari MANU/SC/0025/2000 : (2000) 2 SCC 57 : 2000 SCC (Cri) 311 it was held that the charge can be quashed if the evidence which the prosecutor proposes to adduce to prove the guilt of the accused, even if fully accepted, cannot show that the accused committed the particular offence. In that case, there would be no sufficient ground for proceeding with the trial.
15. In State of Maharashtra v. Priya Sharan Maharaj MANU/SC/ 1146/1997 : (1997) 4 SCC 393 : 1997 SCC (Cri) 584 it was held that at Sections 227 and 228 stage the court is required to evaluate the material and documents on record with a view to finding out if the facts emerging therefrom taken at their face value disclose the existence of all the ingredients constituting the alleged offence. The court may, for this limited purpose, sift the evidence as it cannot be expected even at that initial stage to accept all that the prosecution states as gospel truth even if it is opposed to common sense or the broad probabilities of the case.
16. All the decisions, when they hold that there can only be limited evaluation of materials and documents on record and sifting of evidence to prima facie find out whether sufficient ground exists or not for the purpose of proceeding further with the trial, have so held with reference to materials and documents produced by the prosecution and not the accused. The decisions proceed on the basis of settled legal position that the material as produced by the prosecution alone is to be considered and not the one produced by the accused. The latter aspect relating to the accused though has not been specifically stated, yet it is implicit in the decisions. It seems to have not been specifically so stated as it was taken to be a well-settled proposition. This aspect, however, has been adverted to in State Anti-Corruption Bureau v. P. Suryaprakasam 1999 SCC (Cri) 373 where considering the scope of Sections 239 and 240 of the Code it was held that at the time of framing of charge, what the trial court is required to, and can consider are only the police report referred to under Section 173 of the Code and the documents sent with it. The only right the accused has at that stage is of being heard and nothing beyond that.[Para No.10]
11. Thus it is settled position of law that at the time of framing of charge, the Court is not supposed to look into the evidence of the case in detail and is only to consider whether there is a strong suspicion against the accused on the basis of the material that comes before it. The court has the power to sift the evidence for the limited purpose of finding out, whether or not a prima facie case is made out against the accused. However, the Court is not supposed to delve deeply into the merits of the matter and start a roving expedition into the evidence that is brought forth it, as if conducting a trial. Further there is no one fixed definition that may be ascribed to the term prima facie' nor can the term strong suspicion have a singular meaning. While coming to the conclusion of a strong prima facie case or strong suspicion, the Court shall have to decide each case on the basis of its own independent facts and circumstances.[Para No.11]
26. It is trite law that at the stage of framing of charge, the Court is not to delve deeply with the evidence brought forth, but the same does not mean that the Court should ignore gaping holes apparent on the face of the record, in the case of the prosecution, and the court cannot act as a mouthpiece of the prosecution.[Para No.26]
Held: If the version of witness is unassailable, capable of being accepted for its face value without any hesitation then such witness is called as Sterling Witness.
