No relief can be granted to the tenant on the ground of comparative hardship if he has never made any effort for searching alternative accomodation

So far as comparative hardship is concerned, it is undisputed fact that the petitioner has never attempted to search alternative space for shifting his business and law is very well settled on this point. The Apex Court as well as this Court has repeatedly held that it is necessarily required on the part of tenant to make full endeavour to search alternative accomodation to prove his comparative hardship after receiving copy of release application. In the matter of Rajasthan State Road Transport Corporation (supra), the Court has clearly held that it is required on the part of tenant to make effort for searching alternative accomodation. Again in the matter of Salim Khan (supra), this Court, relying upon the judgments of the Apex Court as well as this Court, was of the view that it is required on the part of petitioner to search accomodation after filing the release application and in the present case there is no dispute that the petitioner had never made any effort to search alternative accomodation. Not only this, the Court has also considered the Rule 16 of the Rules, 1972 and considering the another judgment of Ganga Devi (supra), Court has taken the view that Rule 16 of Rules, 1972 would not come in the rescue of petitioner, in case, petitioner-tenant has not made any effort to search another accomodation. Here in the present case, there is no dispute on the point that petitioner has not made any effort to search alternative accomodation.

    In the matter of Sarju Prasad (supra), this Court has again taken the same view and held that in case effort was not made for alternative accomodation, this would be sufficient to tilt the balance of comparative hardship against the tenant. This view was again repeated by this Court in the case of Bachchu Lal (supra) and held that to prove the comparative hardship, it is necessarily required to make effort to search alternative accomodation, which is absolutely missing in the present case.

    Therefore, in light of fact that petitioner has never made any effort for searching alternative accomodation coupled with law laid down by the Apex Court as well as this Court, no relief can be granted to the petitioner on the ground of comparative hardship.

Evidence of child witness without oath can be relied upon if child witness is able to understand the questions and able to give rational answers thereof

Master Krishna Akhade (PW-4), son of deceased Sangita and the appellant -accused, was 4 year old tender aged child. It is abundantly clear from the evidence of Mr Mangesh Sonawane (PW-2) and Mr Mahesh Pagare (PW-3) that, Krishna Akhade (PW-4) was present in the house when the incident took place. As already referred to in foregoing paragraphs, master Krishna Akhade (PW-4) had not seen entire incident. Material portion of his testimony is as under:

"I am taking education in Balwadi. My mother's name is Sangita. The name of my father is Bhatu. The name of my sister is Divya. There was quarrel on that day in between my mother and father. My father beat to my mother by means of wooden log. I had seen the said incident. There was smoke in the house. Door was opened by Sonu uncle and Golu Uncle."[Para No.22]

    Record reveals that, before recording the evidence learned Additional Sessions Judge, Dhule ascertained as to whether master Krishna Akhade is a competent witness and whether oath can be administered to him by putting certain preliminary questions. Record further reveals that, considering very tender age of master Krishna Akhade, learned Additional Sessions Judge, Dhule decided not to administer oath to him. During cross-examination master Krishna Akhade clearly stated that, he had been awakened from sleep hearing shouting, which clearly establishes that, he had seen the incident not fully, but partly. Nothing is brought on record through his cross-examination, on the basis of which, his evidence can be discarded branding it to be tutored. No doubt, cross-examination of master Krishna Akhade (PW-4) reveals that, 1½ months prior to recording of his evidence maternal uncle Mangesh Sonawane (PW-2) had taken him to his house from the house of parental grandfather and grandmother. Merely for the reason that, master Krishna Akhade (PW-4) was in the custody of Mangesh Sonawane (PW-2) prior to his entering into the witness box, inference cannot be drawn that, Mr Mangesh Sonawane (PW-2) had tutored him before coming to the court for giving evidence. It is pertinent to note that, on very next day of the incident, statement of master Krishna Akhade under Section 161 of CrPC was recorded. Testimony of master Krishna Akhade is free from any omission or contradiction. Since the statement of master Krishna Akhade (PW-4) under Section 161 of CrPC was recorded on very next day of the incident when he was in the custody of parents of the appellant, question of his tutoring at that time by his maternal uncle Mr Mangesh Sonawane (PW-2) does not arise.[Para No.23]

    In the matter of Dattu Ramrao Sakhare Vs. State of Maharashtra, 1997 (3) Mh.L.J. 452, the Hon'ble Supreme Court while dealing with the aspect of competency and credibility of child witness under Section 115 of the Indian Evidence Act, 1872, in paragraph no.5 of the Judgment, held as under :

"A child witness if found competent to depose to the facts and reliable one such evidence could be the basis of conviction. In other words even in the absence of oath the evidence of a child witness can be considered under Section 118 of the Evidence Act provided that such witness is able to understand the questions and able to give rational answers thereof. The evidence of a child witness and credibility thereof would depend upon the circumstances of each case. The only precaution which the court should bear in mind while assessing the evidence of a child witness is that the witness must be a reliable one and his/her demeanour must be like any other competent witness and there is no likelihood of being tutored."[Para no.24]

Even If landlord has multiple premises available with him still the tenant cannot dictate to him which of the premises he may seek to get vacated

Tenant can be evicted for bona fide requirement of married daughter of landlord even if such daughter or her husband is having resources to purchase other premisses

    In another decision rendered by a single Judge of our High Court in Vinod Gupta vs. Kailash Aggarwal & Ors. where the bona- fidé requirement of a married daughter was canvassed, the single Judge relying upon the decision in Sunder Singh Talwar (supra) has also referred to a 2014 decision as follows :

"14. Further in Rajender Prasad Gupta V. Rajeev Gagerna 2014 (114) DRJ 182, the Court held as follows :
"5. Having considered the arguments of learned counsel for the parties, this Court is of the view that the Trial Court has taken into consideration each of the contentions raised in the leave-to-defend and found them to be not triable issues. The reasons for and conclusion arrived at cannot be faulted. Furthermore, simply because the daughter of a marriageable age and allegedly likely to marry would not necessary cut her ties from her maternal family nor would the requirement for her accommodation in her father's house be lessened. Indeed, in the present times a daughter who is married-out, may like to retain her accommodation in her father's house which forms an emotional anchor and a place for refuge for all times. In times of an unfortunate marital discord such need becomes more acute should there be such a need.
    Conversely her family also would want to retain a room so as to re-assure her of a continued place of residence in her paternal home. A married daughter's ties with her paternal family do not end upon her marriage. For a married daughter her parents' home is always a refuge; an abode of reassurance and an abiding source of emotional strength and happiness. In the present case the daughter is a practicing advocate, i.e. a qualified professional, the need is all the more acute and bona fide. This Court finds, as did the Trial Court did, that no triable issues were raised in the leave-to- defend. Therefore, there was no need to grant leave or set the matter for trial. The reasons and the conclusion arrived at in the impugned order are correct and call for no interference." 

"15. Thus the law discussed above does not leave any room for further discussion on this topic. Admittedly the law as it stands, the daughters share equal rights in their parental properties as a son does, hence saying a married daughter severe (sic) all her relations with her father's family and would never be considered dependent upon the family's property, residential or commercial, that her parents own, would not be correct. Hence no fault can be found in impugned order even on this score."

(emphasis supplied) The single Judge thereby upheld the denial of leave-to-defend to the tenant.[Para No.16]

    While the ARC has clearly erred in holding that the requirement of a married daughter can never be considered while deciding the bona-fidé requirement of a landlord under section 14(1)(e) since a married daughter does not remain a member of the family, another question arises in the present case, and that is : whether in assessing the availability of suitable, alternate accommodation for the use of a married daughter, it is necessary to first assess the availability of such accommodation in the hands of the husband ; or is it permissible to assess the availability of such accommodation in the hands of the maternal family of the married daughter. In the opinion of this court, this question must be answered from the perspective of the eviction petitioner who seeks recovery of possession for the bona fidé requirement of a dependent family member. Accordingly, the availability of suitable, alternate accommodation is to be seen in the hands of the person filing the eviction petition, in this case the mother/landlady; and it is not relevant whether other relatives of the dependant family member have any alternate accommodation available. In this case, it is therefore not relevant whether the petitioner's sons-in-law have alternate accommodation or not.[Para No.17]

In absence of the depositions or the evidence of the victim; conviction u/s. 4 & 5 of the Immoral Trafic (Prevention) Act can not be sustained

PW-4, P.I., Madan Manohar Ballal of Crime Branch, Thane, claimed that at the relevant time, he was attached to A.H.T.C. and the investigation of the present Crime No. I-475 of 2013 of Manpada Police Station was handed over to him and he has received the relevant documents viz. complaint, panchanama, Pre-raid panchanama, raid panchanama, spot panchanama, muddemal and Police statements of witnesses. He claimed that he has obtained the documents of registration of the said flat, which is the place of offence, so also R.C. book of motorcycle. He claimed that he has requested the learned Judicial Magistrate, First Class, Kalyan on 7 th December, 2013 and 13th January, 2014 so as to record the statements of victims under Section 164 of Cr.P.C. vide Exhibit 38 and 39. According to him, he has also sent a letter to Rescue Foundation to produce the victim girls vide Exhibits 40 to 45 for recording the statements of the victim girls under Section 164 of Cr.PC. However, according to him, the victims were sent to Bangladesh through Rescue Foundation, whereas victim no.6, Pinki Mandol was sent to West Bengal.[Para No.20]

    As such from the aforesaid testimony of the investigating officer, what can be gathered is the statement of the victim girls could not be recorded under Section 164 Cr.P.C. though efforts were made as the five victims were sent back to Bangladesh by the Rescue Foundation, whereas victim Pinki to West Bengal. No efforts were made by the prosecution to record the statement of victim girls under Section 164 Cr.P.C. by video conferencing or their oral evidence during the course of trial.[Para No.22]

    Similarly as observed hereinabove the conviction under the provisions of Immoral Traffic (Prevention) Act, 1956 is also not sustainable as it is not established that the accused were either the owner or licensee or as a tenant of the flat in question, which is the place of offence and they were in actual possession of the premises particularly in absence of testimony of the flat owner. Similarly, it is also not established that the vehicle i.e. two wheeler was seized from the custody of or ownership of the accused. That being so, the conviction of the appellants for an offence punishable under Section 3 of Immoral Traffic (Prevention) Act, 1956 is not sustainable. In absence of the depositions or the evidence of the victims, it is difficult to even sustain the conviction of an offences punishable under Section 4 of the Act particularly in absence of testimony of the victim girls, so also the conviction under Section 5 as there is no material to demonstrate that the victim girls were procured or by inducing or forcing them for the sake of prostitution.[Para No.30]

Criminal appeal against conviction cannot be dismissed for default owing to the absence of the appellant or his counsel

This is the oldest Single Judge Bench criminal appeal of this Court. It was presented on 22.04.1988, admitted on 27.04.1988 and the appellant was directed to be released on bail and realization of fine amount was stayed. After its admission, the case was listed before different Benches on different occasions for hearing but it was adjourned either on the prayer of the learned counsel for the appellant or learned counsel for the Vigilance Department. The matter was listed before me for hearing on 06.08.2020 and I took up the matter through Video Conferencing. The report of the Superintendent of Police, Vigilance Cell, Cuttack revealed that it was intimated to the appellant that the matter would be taken up on 06.08.2020. In spite of that, none appeared on behalf of the appellant. Since the appeal was pending before this Court for more than thirty years, in presence of the learned Senior Standing Counsel for the Vigilance Department, Mr. Deba Prasad Das, Advocate who is having extensive practice on criminal law for more than thirty five years, both in the trial Court as well as before this Court was appointed as Amicus Curiae to conduct the case for the appellant and the Registry was directed to supply the paper book to Mr. Das by 07.08.2020 and to intimate him that the matter would be taken up for hearing in the week commencing from 10.08.2020. Accordingly, Registry supplied the paper book to Mr. Das. On 13.08.2020 when the matter was again listed for hearing and it was taken up through video conferencing, Mr. Das, learned Amicus Curiae was ready for hearing but the learned counsel for the appellant who had filed the criminal appeal in the year 1988 appeared and sought for two weeks adjournment which was refused and accordingly, the hearing was taken up and concluded on that date itself and the judgment was reserved. Mr. Das, learned Amicus Curiae took time till 17.08.2020 to file his written note of submission and accordingly he also filed the same.

    In the case of Bani Singh and others -Vrs.- State of Uttar Pradesh reported in 1996 (II) Orissa Law Reviews (SC) 216, a three Judge Bench of the Hon'ble Supreme Court was called upto to decide the question as to whether the High Court can dismiss an appeal filed by the accused-appellant against the order of conviction and sentence issued by the trial Court, for non-prosecution. Considering the provisions under sections 385 and 386 of Cr.P.C., it was held that the law does not envisage the dismissal of appeal for default or non-prosecution but only contemplates disposal on merits after perusal of the record. It was further held that the law does not enjoin that the Court shall adjourn the case if both the appellant and his lawyer are absent. If the Court does so as a matter of prudence or indulgence, it is a different matter, but it is not bound to adjourn the matter. It can dispose of the appeal after perusing the record and the judgment of the trial Court. If the accused is in jail and cannot, on his own, come to Court, it would be advisable to adjourn the case and fix another date to facilitate the appearance of the accused/appellant if his lawyer is not present. If the lawyer is absent, and the Court deems it appropriate to appoint a lawyer at State expense to assist it, there is nothing in the law to preclude it from doing so. The ratio laid down in the case of Bani Singh (supra) was followed in the case of K.S. Panduranga -Vrs.- State of Karnataka reported in (2013)3 Supreme Court Cases 721 wherein it was held that the High Court cannot dismiss an appeal for non-prosecution simplicitor without examining the merits and the Court is not bound to adjourn the matter if both the appellant or his counsel/lawyer are absent. The Court may, as a matter of prudence or indulgence, adjourn the matter but it is not bound to do so. It can dispose of the appeal after perusing the record and judgment of the trial Court. If the accused is in jail and cannot, on his own, come to Court, it would be advisable to adjourn the case and fix another date to facilitate the appearance of the appellant-accused if his lawyer is not present, and if the lawyer is absent and the Court deems it appropriate to appoint a lawyer at the State expense to assist it, nothing in law would preclude the Court from doing so.

    In the case of Shridhar Namdeo Lawand-Vrs.-State of Maharastra reported in 2013 (10) SCALE 52, a three Judge Bench of the Hon'ble Supreme Court held that it is the settled law that Court should not decide criminal case in the absence of the counsel for the accused, as an accused in a criminal case should not suffer for the fault of his counsel and the Court should, in such a situation must appoint another counsel as an amicus curiae to defend the accused.

    In the case of Christopher Raj -Vrs.- K.Vijayakumar reported in (2019)7 Supreme Court Cases 398, it was held that when the accused did not enter appearance in the High Court, the High Court should have issued second notice to the appellant-accused or the High Court Legal Services Committee to appoint an Advocate or the High Court could have taken the assistance of Amicus Curiae. When the accused was not represented, without appointing any counsel as Amicus Curiae to defend the accused, the High Court ought not to have decided the criminal appeal on merits.

In computing period of 60/90 days for default bail u/s.167(2) of CrPC, first day of remand is to be included

The applicability of the aforesaid principle and also of the provision contained in Section 9 of the General Clauses Act would be of some semblance/relevance, where the law/statute prescribes a limitation and in terms of Section 9, if in any Central Act or Regulation made after the commencement of the General Clauses Act, 1897 it shall be sufficient for the purpose of excluding the first in a series of days or any other days or any other period of time, to use the word ‘from’ and ‘for the purpose of including the last in a series of days or any other period of time to use the word ‘to’. The principle would be attracted when a period is delimited by a Statute or Rule, which has both a beginning and an end; the word ‘from’ indicate the beginning and then the opening day is to be excluded and then the last day is included by use of words ‘to’. The requisite form for applicability of Section 9 is prescribed for a period ‘from’ and ‘to’, i.e. when the period is marked by terminus quo and terminus ad quem.

    If this principle is the underlining principle for applicability of Section 9 of the General Clauses Act, 1897, perusal of Section 167 (2) would reveal that there is no starting point or an end point. In the scheme of the Code, as has been elaborated above, the provisions contained in sub-section (1) of Section 167 runs in continuation of sub-section (2). Production of the accused before the Magistrate is a sequel of his arrest by the police in exercise of their power and the mandate of the police, and at the same time, a right of the accused to be produced before the Magistrate within 24 hours. The day on which the accused is brought on remand before the Magistrate, sub-section (2) of Section 167 empowers the Magistrate to authorize the detention with the police either by continuing it or remanding him to Magisterial custody. There cannot be a pause/break between the two processes. There is no de-limitation conceptualized in Section 167 nor can it be befitted into a period of limitation ‘from’ and ‘to’ as there is no limitation for completion of investigation and filing of the charge-sheet. The production before the Magistrate is a process in continuation of his arrest by the police and the Magistrate will authorize his detention for not more than 15 days in the whole but if he is satisfied that sufficient ground exist, he may authorise his detention beyond 15 days otherwise than in custody of police. There is no starting point or end point for the authorities to complete their action but if the investigation is not completed and charge-sheet not filed within 60 days or 90 days, a right accrues to the accused to be released on bail.

    The anterior period of custody with the police prior to the remand is no detention pursuant to an authorization issued from the Magistrate. The period of detention by the Magistrate runs only from the date of order of first remand. Sub-section (2) of Section 167 of the Cr.P.C pertain to the power of the Magistrate to remand an accused and there is no reason why the first day has to be excluded. The sub-section finds place in a provision which prescribe the procedure when investigation cannot be completed in 24 hours and distinct contingencies are carved out in sub-section (2); the first being the Magistrate authorizing the detention of the accused for a term not exceeding 15 days in the whole, secondly, when the Magistrate do not consider further detention necessary and thirdly, the Magistrate authorise the detention beyond period of 15 days if adequate grounds exists for doing so. However, there is no time stipulated as to extension of custody beyond period of 15 days with a maximum limit on the same. The accused can be in magisterial custody for unlimited point of time if he is not admitted to bail. In order to avoid the long incarceration of an accused for the mere reason that the investigation is being carried out in a leisurely manner, prompted the legislature to confer a right on the accused to be released on bail if he is prepared to do so and the investigation can still continue. This is the precise reason why the General clauses Act cannot be made applicable to sub-section (2) of Section 167 and the submission of Mr.Singh to the effect that the first day of remand will have to be excluded, would result into a break in the continuity of the custody of the accused which begin on his arrest and which could have continued till conclusion of investigation but for insertion of proviso to subsection (2) of Section 167.

Prosecution case has to stand on its own legs and cannot take support from the weakness of the case of defence

In fact learned Counsel for parties also have mostly relied upon the evidence of the prosecutrix only either to demonstrate that the offences have not been committed or committed. Law on the perspective to be adopted in such case can be found in following two judgments of the Hon. Apex Court. In Narender Kumar Vs. State (NCT of Delhi), AIR 2012 SC 2281 : (2012) CriLJ 3033 : (2012) 3 JCC 1888 : (2012) 5 SCALE 657 : (2012) 7 SCC 171 : (2012) AIRSCW 3391 : (2012) 4 Supreme 59 , Hon. Apex Court points out the settled legal proposition that once the statement of prosecutrix inspires confidence and is accepted by the court as such, conviction can be based only on the solitary evidence of the prosecutrix and no corroboration would be required unless there are compelling reasons which necessitate the court for corroboration of her statement. Corroboration of testimony of the prosecutrix as a condition for judicial reliance is not a requirement of law but a guidance of prudence under the given facts and circumstances. However, where evidence of the prosecutrix is found suffering from serious infirmities and inconsistencies with other material, prosecutrix making deliberate improvements on material point with a view to rule out consent on her part and there being no injury on her person even though her version may be otherwise, no reliance can be placed upon her evidence. Even in cases where there is some material to show that the victim was habituated to sexual intercourse, no inference of the victim being a woman of "easy virtues" or a women of "loose moral character" can be drawn. Such a woman has a right to protect her dignity and cannot be subjected to rape only for that reason. She has a right to refuse to submit herself to sexual intercourse to anyone and everyone because she is not a vulnerable object or prey for being sexually assaulted by anyone and everyone. Merely because a woman is of easy virtue, her evidence cannot be discarded on that ground alone rather it is to be cautiously appreciated. In view of the provisions of Sections 53 and 54 of the Evidence Act, 1872, unless the character of the prosecutrix itself is in issue, her character is not a relevant factor to be taken into consideration. Hon. Apex Court states that even in a case of rape, the onus is always on the prosecution to prove, affirmatively each ingredient of the offence it seeks to establish and such onus never shifts. It is no part of the duty of the defence to explain as to how and why in a rape case the victim and other witness have falsely implicated the accused. Prosecution case has to stand on its own legs and cannot take support from the weakness of the case of defence. However great the suspicion against the accused and however strong the moral belief and conviction of the court, unless the offence of the accused is established beyond reasonable doubt on the basis of legal evidence and material on the record, he cannot be convicted for an offence. There is an initial presumption of innocence of the accused and the prosecution has to bring home the offence against the accused by reliable evidence. The accused is entitled to the benefit of every reasonable doubt.

Prosecution has to prove its case beyond reasonable doubt and cannot take support from the weakness of the case of defence. There must be proper legal evidence and material on record to record the conviction of the accused. Conviction can be based on sole testimony of the prosecutrix provided it lends assurance of her testimony. However, in case the court has reason not to accept the version of prosecutrix on its face value, it may look for corroboration. In case the evidence is read in its totality and the story projected by the prosecutrix is found to be improbable, the prosecutrix case becomes liable to be rejected. The court must act with sensitivity and appreciate the evidence in totality of the background of the entire case and not in the isolation. Hon. Apex Court in matter before it observes that the facts and circumstances therein made it crystal clear that if the evidence of the prosecutrix was read and considered in totality of the circumstances along with the other evidence on record, in which the offence was alleged to have been committed, her deposition did not inspire confidence. The prosecution had not disclosed the true genesis of the crime. It therefore, found the appellant entitled to the benefit of doubt.[Para No.15]

A Judge is judged not only by his quality of judgments but also by the quality and purity of his character

Qualities of a good judge:

What cannot be ignored is also the fact that once when the petitioner being appointed as a member of judicial service unlike other employment or profession, judicial service is in itself a class apart. Judges in the judicial service is not merely in employment, nor are the judges mere employees, they are the holders of a post by which they exercise judicial powers. Their office is one with great trust and responsibility. Any act of injustice or misdeed by a judicial officer would lead to a disastrous and deleterious situation having grave adverse consequence.[Para No.26]

    It is always expected that a judicial officer discharges his work and duties in tranquillity and he has to behave and conduct in a manner as if he is a hermit.[Para No.27]

    So far as the conduct part is concerned, the Judges should always maintain and enforce a high standard of conduct which he should personally observe. It is always expected that a judicial officer shall apart from maintaining high level of integrity, should have great judicial discipline and should always try to avoid impropriety. Judge should always be sensitive to the situation around him and should avoid being overactive or over-reactive. It is always expected from a Judge to perform himself most diligently and should not get himself engaged in behavior that is harassing, abusive, prejudiced or biased.[Para No.28]

    Talking on the elements of judicial behaviour it has always been said that Judges shall remain accountable for their actions and decisions. A Judge's official conduct should be free from impropriety and the appearance of impropriety; he should avoid infractions of law; and his personal behaviour, not only upon the Bench and in the performance of judicial duties, but also in his everyday life, should be beyond reproach. Accordingly an act of the Judge whether in official or on personal capacity which erodes the credibility of the judicial institution has to be avoided.[Para No.29]

Information recorded u/s.27 of Evidence Act by a Police Officer which is confessional in nature, is not admissible in evidence

The learned trial court arrived at a conclusion of guilt of the accused appellant primarily on the basis of three circumstances. The first conclusion of the trial court was based on the so-called evidence of disclosure i.e., the accused gave an information to the I.O. under Section 27 of the Indian Evidence Act and led him to the place where he had allegedly strangled Smt. Mohini. In this regard, it is a settled proposition of law that such part of information of the accused recorded by a Police Officer which is confessional in nature, cannot be proved and as a consequence, is not admissible in evidence.

Manifestly, the inculpating part of the information (Ex.P/14) wherein, the accused allegedly admitted to have killed Smt. Mohini is totally inadmissible because the same would be hit by Section 25 of the Evidence Act. It may be stated here that the Site Inspection Plan (Ex.P/8) which the I.O. prepared on the basis of the information provided by the accused, records that a cot was lying at point 'X' in a room where Sheshkaran Dan admitted to have murdered his wife Smt. Mohini. Manifestly, the confession of the accused as is recorded in this document, is totally inadmissible and has to be excluded from consideration. The remaining part of the document, simply records presence of a cot at mark 'X' in the room. Obviously, when the husband and wife were living together in the house, presence of a cot in their room was but natural. Therefore, the conclusion drawn by the trial court in the impugned Judgment that the disclosure made by the accused pointing out the cot where he allegedly murdered Smt. Mohini was incriminating in nature, is absolutely baseless and frivolous.[Para No.9]

Bequeath of disproportionate share in Will does not make the Will suspicious or unnatural

Thus, from the tenor of the Will read with the document dated 30 September, 2000, it appears that Pravin had equal love and affection for Ashok and Dipti. However, Pravin was of the opinion that he had spent sufficient sums of money on Dipti to give her a comfortable life and hence he did not think it necessary to leave much of his properties to his daughter. However, it is not that Dipti was totally deprived by Pravin in the Will. As noted, 9% Relief Bonds with face value of Rs.31,00,000/- and Maturity Value of over Rs.48,00,000/- were left for Dipti. It has also come out from the evidence on record that Dipti and her husband are both well established in U.S.A. and between the two of them, they earn over 1 million U.S. dollars per year. This factor is also likely to have played in the mind of the testator in deciding that it was not necessary to leave much for Dipti who was financially more than secure. Just because the bequests in favour of the testator's two children are not equal and may even be disproportionate, the same in my view, per se would not amount to a suspicious circumstance or make the Will unnatural. A Will is generally made when the testator desires to alter the natural course of succession. As observed by the Apex Court in the case of Ramabai Padmakar Patil (Dead) v. Rukminibai Vishnu Vekhande (supra), a Will is executed to alter the natural mode of succession and by the very nature of things it is bound to result in either reducing or depriving the share of a natural heir. If a person intends his property to pass equally to his natural heirs there is no necessity at all of executing a Will. It is true that the propounder of a Will has to remove all suspicious circumstances. Suspicion means doubt, conjecture or mistrust. But the fact that the natural heirs or some of them have been excluded or a lesser share has been given to them, by itself without anything more, cannot be held to be a suspicious circumstance.[Para No.31]

    In S. Sundaresa Pai vs. Sumangala. T. Pai (supra), the Hon'ble Supreme Court observed at Paragraph 7 of the judgment inter alia as follows:

"The uneven distribution of assets amongst children, by itself, cannot be taken as a circumstance causing suspicion surrounding the execution of the will. One son was given bulk of immovable properties; another none; another half share in one immovable property; other half being given to the plaintiff and another daughter and husband were given nothing. It is also not in dispute that some properties were given in gift to the plaintiff by her mother during her lifetime. There was nothing unnatural."[Para No.51]

Intention of accused can be gathered from the fact whether the weapon was carried by the accused or was picked up from the spot

The conspectus of the decisions can summarised thus:

The offence to fall within Exception 4 of section 300 of The Indian Penal Code 1860 following ingredients must be fulfilled Viz.(i) that the act was committed without premeditation; ( ii) that there was a sudden fight; (iii) the act must be in the heat of passion upon a sudden quarrel; and (iv) the offender should not have taken undue advantage or acted in a cruel or unusual manner.[Para No.22]

    The intention to cause death as contemplated by thirdly of Section 300 of The Indian Penal Code 1860 can be gathered from following factors:

(i) nature of the weapon used;

(ii) whether the weapon was carried by the accused or was picked up from the spot;

(iii) whether the blow is aimed at a vital part of the body;

(iv) the amount of force employed in causing injury;

(v) whether the act was in the course of sudden quarrel or sudden fight or free for all fight;

(vi) whether the incident occurs by chance or whether there was any premeditation;

(vii) whether there was any prior enmity or whether the deceased was a stranger;

(viii) whether there was any grave and sudden provocation, and if so, the cause for such provocation;

(ix) whether it was in the heat of passion;

(x) whether the person inflicting the injury has taken undue advantage or has acted in a cruel and unusual manner;

(xi) whether the accused dealt a single blow or several blows.[Para No.23]

Arbitrator can order to array necessary parties but can not close proceeding with permission to file fresh proceeding

After hearing counsel on both sides, we do not have any doubt in mind that the Arbitrator cannot be justified in closing the proceeding abruptly for the mere reason that the other employees whose names found place in the final report were not impleaded. We cannot lose sight of the fact that the reference was made to the Arbitration Court for the recovery of a whopping amount, nearly Rs.18 crores from the appellants and others, who had defalcated money while working in the employment of the Bank. It is shown that the contesting defendants had contended that the suit is bad for non-joinder of necessary parties. But, from the proceedings, it cannot be inferred whether, in the light of the pleadings, opportunity was afforded to the plaintiff Bank for impleading additional defendants and to amend the plaint. Even though it is a quasi-judicial proceedings, having regard to the scope and ambit of Section 70 of the Co-operative Societies Act, we are of the opinion that the said forum has all the powers and trappings of a civil court and any interpretation restricting the scope and ambit would not be in terms of advancement of justice.[Para No.7]

    Even when we are inclined to uphold the finding of the learned single Judge that Ext.P10 cannot stand judicial scrutiny, we are of the definite opinion that it was open to the Arbitrator to invoke the powers under Rule 10(2) of Order 1 of the Code of Civil Procedure. Though the plaintiff is the dominus litis, and has to decide who are the necessary parties to the suit, if the plaintiff does not implead all the necessary parties, it is open to the Court to add any person as party at any stage of the proceedings, if the person whose presence before the Court is necessary for an effective and complete adjudication of the issues involved in the suit. It is the settled proposition of law that a person may be a necessary party in a suit, namely, (a) if he ought to have been joined as a party to the suit and has not been so joined, and (b) if the suit cannot be decided without his presence. Apex Court has repeatedly held that the theory of dominus litis should not be overstretched in the matter of impleading of parties, because it is the duty of the Court to ensure that, if for deciding the real matter in dispute, a person is a necessary party, the said person is impleaded. In order to do complete justice between the parties the power available under sub-rule (2) of Rule 10 of Order 1 CPC shall be invoked by the Court.[Para No.8]

    It is trite that all powers which are not specifically denied by the statute or the statutory rules should be vouchsafed to a Tribunal that it may effectively exercise its judicial function. In this connection, it is apposite to extract the following paragraph from the decision reported in Ebrahim Ismail Kunju v. Phasila Beevi [1991 (1) KLT 861].

"5. The increasing importance of the Tribunals in the vast changing life of the community cannot be ignored by a modern court. A modern ostrich even in the distant deserts may not make such limited use of its eyes. Many valuable rights of the modern citizen are deeply involved with the adjudicator, processes of the Tribunals. Many areas hitherto occupied by courts, are now the domains of the Tribunals. A liberal approach towards their functioning and a larger view about the powers they need, are the requirements of the times. A Tribunal should be facilitated to do all that a court could do in similar situations; and much more than that. Greater speed and a total liberation from the tentacles of technicalities, give a better look and greater efficiency for effectively manned Tribunals. If there be no statutory prohibition, the Tribunal should therefore normally be in a position to ordain its affairs and modulate its procedures in such a manner as to best subserve the interest of the public, and in particular the litigant public."[Para No.11]

Insurance company is not liable to pay compensation for death of third party if vehicle is used as a weapon to murder by crushing down

Whether the brutal killing of two persons by the 7 th Respondent/Driver (who has been found guilty of murder under Section 302 IPC and has been convicted and sentenced to life imprisonment by the Trial Court) using the Truck as a weapon and crushing them down, could be treated as an 'accident' or as 'out of the use of a motor vehicle' so as to award compensation to the legal representatives of the deceased, on the strength of a policy issued by the Appellant-Insurer? The finding of the Tribunal that the said incident is an accident and the Appellant/Insurer is liable to pay the compensation, is put to challenge in these appeals.[Para No.1]

    Coming to the scope for payment of compensation under the MV Act and the coverage of third party risk, Chapter XI has been provided for insurance of the motor vehicles against the third party risk. Section 146 speaks about the necessity for insurance against third party risk to the effect that no person shall use, except as a passenger, or cause or allow any other person to use, a motor vehicle in a public place, unless there is in force in relation to the use of the vehicle by that person or that other person, as the case may be, a policy of insurance complying with the requirements of the said Chapter. The requirements of policy and limits of liability have been mentioned under Section 147 of the MV Act; whereas the duty of the insurers to satisfy judgments against persons insured in respect of third party risk has been dealt with under Section 149 of the MV Act.[Para No.11]

    As mentioned already, on occurrence of an accident involving use of a motor vehicle, compensation can be claimed either under Section 163A of the MV Act on the basis of a structured formula (where it is not necessary for the Claimants to plead or prove negligence on the part of the Driver or the Owner) or under Section 166 of the MV Act by proving the negligence on the part of the Driver of the offending vehicle. It is quite possible that in a given case, 'murder' can be an 'accident'. If only it amounts to an 'accident', can it lead to a claim petition, to be filed by the Claimants, seeking compensation in respect of such accident because of the use of the motor vehicle either under Section 163A or under Section 166 of the MV Act. The Claims Tribunal envisaged under Section 165 of the MV Act names the Tribunal as 'Motor Accidents Claims Tribunal' and if it is not an accident, no such claim can be held as maintainable, to be entertained by the Tribunal.[Para No.12]

    The question whether a murder can be an accident in a given case had come up for consideration before the Apex Court in Rita Devi (supra). It was a case where some unknown passengers hired an Autorickshaw from an autostand at Dimapur and later, the vehicle was reported stolen and the dead body of the Driver was recovered by the Police on the next day. The Autorickshaw was never recovered and the claim of the owner for the loss of Autorickshaw was considered and sanctioned by the Insurer, satisfying the amount for which it was settled. A claim petition was filed by the legal representatives of the deceased Driver under Section 163A of the MV Act, claiming compensation for the death as having arisen out of and in the course of his employment. The Tribunal held that it was caused by 'accident' coming within the purview of the MV Act and the owner and the Insurer were liable. The Insurance Company took up the matter before the High Court where it was held that there was no motor accident as contemplated under the MV Act and that it was an act of murder. Accordingly, the appeal was allowed and the award passed by the Tribunal was set aside. This led to the proceedings before the Apex Court where the question was subjected to a threadbare analysis; particularly on the point of 'dominant intention'. The Apex Court observed that there are instances where murder can be by accident on a given set of facts and that the difference between a murder 'which is not an accident' and a murder 'which is an accident' depends upon the proximity of the cause of murder. The Apex Court held that if the 'dominant intention' of the act of felony is to kill any particular person, then such killing is not an accidental murder but a 'murder simplicitor'; whereas, in a case where act of murder was originally not intended and the same was caused in furtherance of any other felonious act, then such murder is an 'accidental murder'.[Para No.13]

Extra judicial confession of absconded co-accused cannot be used to record conviction

The prosecution is also relying on evidence of PW No.9 Tapan Mandal to establish that the other accused Kishor Shelar had made extra-judicial confession to him about killing of women by both accused. His evidence is also relied to establish that motorcycle brought by Kishor Shelar was produced by him. The other accused was apparently juvenile in conflict with law. The Judgment of trial Court mentions that, the other accused Kishor Shelar is Juvenile in conflict with law against whom the proceeding is going on before juvenile justice Board. The outcome of the proceedings is not known. Thus, the said accused was not before Trial Court in this proceeding. PW No.9 is silent about words 'Hari Om' being written on number plate of motorcycle. PW No.9 has stated that accused No.2 is absconding, although the investigating officer is silent in that regard. According to him he was working on Vadapav stall of father of accused No.2. The motorcycle belongs to relative of accused. The said accused went to Pune and confessed to him. The accused was arrested and PW No.9 was told to deposit motorcycle. The recovery is not at the instance of accused. It is difficult to accept that the accused would go to Pune and make confession to PW No.9. The witness have not stated as to why accused visited him and whether he stayed with him and what was the nature of relationship between them to confess about crime. In any case it is a extra-judicial confession of accused who is not tried in this proceeding. The owner of motorcycle was not examined. Appellant cannot be convicted on the basis of such extra-judicial confession.[Para No.30]

    The extra-judicial confession is weak piece of evidence. The extra judicial confession is questionable in the present case. The witness did not allude the information to anyone about the confession made by the appellant. In the case of Sahadevan V/s State of Tamilnadu, (2012), 6 SCC 403 referring to the aspect of evidentiary value of extra judicial confession it was observed :-

"14. It is a settled principle of criminal jurisprudence that extra-judicial confession is a weak piece of evidence. Wherever the court, upon due appreciation of the entire prosecution evidence, intends to base a conviction on an extra-judicial confession, it must ensure that the same inspired confidence and is corroborated by other prosecution evidence. If, however, the extra-judicial confession suffers from material discrepancies or inherent improbabilities an does not appear to be cogent as per the prosecution version, it may be difficult for the court to base a conviction on such a confession. In such circumstance, the court would be fully justified in ruling such evidence out of consideration".[Para No.31]

Revenue authority can not refuse to issue property extract of a property even if an offence is registered in respect of its transaction

It is also stated in Status Report that it was also found during investigation that SGCT Mohinder Singh has purchased land measuring 5 ½ Marlas under Khasra no.497 min situated at Barnai, Jammu, from one, Kiran Bala daughter of Hans Raj resident of Barnai, Bantalab, Jammu, in the year 2012 and sale deed had been executed in favour of alleged accused, Mohinder Singh, for sale consideration of Rs.3.85 Lacs, which was also mutated in his favour. The matter was taken up with Tehsildar North, Jammu, asking him not to allow alienation of the above landed property till further communication from Investigating Agency. Respondents maintain that when accused, Mohinder Singh, became aware about initiation of enquiry, he sold aforesaid piece of land to one, Tanveer Malik (petitioner herein) for Rs.4,68,875/-. The statement of OWP no.1404/2017 IA no.01/2017 witnesses was recorded under Section 161 and 164-A Cr.P.C. Besides, the amount collected by accused, Nirmal Kour and Mohinder Singh, from depositors by way of cheating and fraud, is required to be recovered from them, for which all efforts are being made by respondent and that the investigation of the case is in progress. Thereafter, again on 8 th August 2019 respondent no.2 filed Status Report reiterating the averments made in earlier Status Report and nothing new emerges therefrom.[Para No.5]

  Respondents 1&3 (Revenue Department) have filed their objections, asserting therein that FIR no.23/2014 police Station Crime Branch, Jammu, has been lodged against Nirmal Kour and Mohinder Singh, who have sold the land to petitioner. Respondents have made reference of communication no.CBJ/FIR-23/14/21078 dated 21st December 2015, in which they were asked not to allow alienation of land measuring 5 ½ Marlas falling under Khasra no.497 min situated at Barnai, Jammu, and make necessary entry in this regard in revenue records. Respondents 1&3 maintain in their Reply that petitioner was in possession of land in question, mutated in his favour, prior to filing of complaint against seller/vendor and, therefore, petitioner had purchased the land in question legally and was holding its possession peacefully. However, in view of communication dated 21st December 2015, received from Zonal Headquarters, Crime Branch, Jammu, issuance of revenue papers (Fard) has been withheld as respondents have no option but to withhold issuance of revenue paper in order to carry out the directions received from Crime Branch.[Para No.6]

    Petitioner has purchased land in question by way of a Sale Deed. The said Sale Deed has been registered by registering authority, viz. Sub Registrar, Jammu, on 9th July 2014. Registration of a document, in the present case is a Sale Deed, is a final seal to a document to be implemented and carried in revenue records. From the file as also from the Reply, filed by respondents 1&3, it is evident that mutation has been effected in compliance of registration of aforesaid Sale Deed and necessary entries have been made in revenue records by Revenue Department. Neither Sale Deed nor is Mutation under challenge before any court of law and therefore, the same has attained finality.[Para No.8]

    In addition to this, perusal of Reply reveals that respondents 1&3 have categorically stated that petitioner was in possession of land in question, mutated in his favour, prior to filing of complaint(s) against seller/ vendor and that petitioner has purchased the land in question legally and was holding its possession peacefully. Once that being the position, issuance of impugned direction contained in communication dated 21 st December 2015, amounts to infringement of constitutional and statutory rights of petitioner. He has purchased the land in question by way of a valid document. Preventing him from enjoying the property amounts to infringement of his constitutional rights as guaranteed under Article 300A of the Constitution of India and a human right as well. Petitioner has every right to obtain revenue excerpts with respect to his aforesaid landed property as also to alienate it in accordance with laws and rules regulating the field.[Para No.9]

Insurance company is not liable to pay compensation to the claimants if cheque of premium issued by vehicle-owner is dishonored before the date of accident

On perusal of the entire record, it is not in dispute that respondent No.6, owner of the offending vehicle, has issued the cheque on 28.02.2014 for Rs.42,335/- towards payment of premium in respect of the offending vehicle. Pursuant to the same, the Insurer has issued a cover note on the very same day. The Insurer deposited the said cheque with its banker on 10.03.2014 for encashment, but the same was dishonoured on 11.03.2014. The same was informed to the Insurer vide cheque return memo dated 11.03.2014. Thereafter, the Insurer has addressed Ex.B5 - letter dated 13.03.2014 to the owner by sending the same through registered post with acknowledgment due to the address furnished by the owner while issuing Ex.B1 - cover note. A copy of Ex.B5 was marked to the RTO informing about the dishonour of cheque as well as cancellation of cover note. The said letter was received by the owner vide Ex.B6, while the RTO under Ex.B7. In Ex.B6 - postal acknowledgment card, there is a signature in proof of receipt of Ex.B5 - letter. It further discloses that the article was booked vide RLAD No.RM838996406IN. The learned counsel for the claimants would contend that signature on Ex.B6 does not belong to respondent No.6 and, therefore, he has not received Ex.B5 - letter. But, the said contention cannot be accepted in view of Exs.B1, B5 and B6. Admittedly, Ex.B5 was sent to the address furnished by the owner under Ex.B1.[Para No.26]

    From the above discussion, it is clear that the cheque issued under Ex.B2 was dishonoured and consequently Ex.B1, cover-note was cancelled by the Insurer. The Insurer also intimated about the dishonour of cheque as well as cancellation of policy to the owner as well as RTO by addressing a letter under Ex.B5 and the said letter was received by the owner under Ex.B6 while Ex.B7 discloses receipt of Ex.B5 letter by the RTO. Thus, there is no valid policy exists as on the date of accident i.e., 04.05.2014. Section 64-VB of the Insurance Act also says that no risk to be assumed unless premium is received in advance. In the present case, the Insurer has not received the premium and, therefore, the Insurer shall not assume any risk. As such, the Insurer is not liable to pay compensation to the claimants - legal heirs of the deceased.[Para No.31]

    As already discussed above, the accident is not in dispute. The claim was under Section 163A of the M.V. Act. The policy was cancelled as on the date of accident i.e., 04.05.2014. The policy was not in force as on the date of accident. Therefore, the appellant - Insurer is not liable to pay compensation to the claimants. It is respondent No.6, owner of the vehicle who is liable to pay compensation to the claimants. Thus, the finding of the Tribunal that the appellant - Insurer has to pay the compensation at the first place and recover the same from the owner is unsustainable.[Para No.37]

If a litigant does not come to the Court with clean hands, he is neither entitled to be heard nor entitled to any relief from any judicial forum

The Supreme Court in the case of 'Bhaskar Laxman Jadhav and others vs. Karamveer Kakasaheb Wagh Education Society and others', reported as (2013) 11 Supreme Court Cases 531 held that it is the duty of the litigant to disclose all material facts and a litigant cannot decide which facts are material and which are not. He must come to court with clean hands and disclose all material facts relating to his case. The Supreme court further held as under:-

"Suppression of fact
42. While dealing with the conduct of the parties, we may also notice the submission of the learned counsel for Respondent 1 to the effect that the petitioners are guilty of suppression of a material fact from this Court, namely, the rejection on 2-5-2003 of the first application for extension of time filed by the trustees and the finality attached to it. These facts have not been clearly disclosed to this Court by the petitioners. It was submitted that in view of the suppression, special leave to appeal should not be granted to the petitioners. 

43. Learned counsel for the petitioners submitted that no material facts have been withheld from this Court. It was submitted that while the order dated 2-5-2003 was undoubtedly not filed, its existence was not material in view of subsequent developments that had taken place. We cannot agree. 

44. It is not for a litigant to decide what fact is material for adjudicating a case and what is not material. It is the obligation of a litigant to disclose all the facts of a case and leave the decision-making to the court. True, there is a mention of the order dated 2-5-2003 in the order dated 24-7-2006 passed by the JCC, but that is not enough disclosure. The petitioners have not clearly disclosed the facts and circumstances in which the order dated 2-5-2003 was passed or that it has attained finality. 

45. We may only refer to two cases on this subject. In Hari Narain v. Badri Das, AIR 1963 SC 1558 stress was laid on litigants eschewing inaccurate, untrue or misleading statements, otherwise leave granted to an appellant may be revoked. It was observed as follows: (AIR p.1560, para 9) "9. .......It is of utmost importance that in making material statements and setting forth grounds in applications for special leave care must be taken not to make any statements which are inaccurate, untrue or misleading. In dealing with applications for special leave, the Court naturally takes statements of fact and grounds of fact contained in the petitions at their face value and it would be unfair to betray the confidence of the Court by making statements which are untrue and misleading. That is why we have come to the conclusion that in the present case, special leave granted to the appellant ought to be revoked. Accordingly, special leave is revoked and the appeal is dismissed. The appellant will pay the costs of the respondent." 

46. More recently, in Ramjas Foundation v. Union of India, (2010) 14 SCC 38 the case law on the subject was discussed. It was held that if a litigant does not come to the Court with clean hands, he is not entitled to be heard and indeed, such a person is not entitled to any relief from any judicial forum. It was said: (SCC p.51, para 21) "21. The principle that a person who does not come to the court with clean hands is not entitled to be heard on the merits of his grievance and, in any case, such person is not entitled to any relief is applicable not only to the petitions filed under Articles 32, 226 and 136 of the Constitution but also to the cases instituted in others courts and judicial forums. The object underlying the principle is that every court is not only entitled but is duty-bound to protect itself from unscrupulous litigants who do not have any respect for truth and who try to pollute the stream of justice by resorting to falsehood or by making misstatement or by suppressing facts which have a bearing on adjudication of the issue(s) arising in the case."

Casual remarks or replies on social media or press note does not amount to defamation if it does not cause serious harm or potential ill effect on reputation of a person

Defamation - Sec. 499 and 500 of IPC -  Whether a particular statement or words are defamatory or not? How it can be decided and what criteria can be applied?

 On the point what constitutes defamation, it is useful to refer to the ratio laid down in S. Khushboo (supra), which is as follows:

In the case of S. Khushboo (supra), the Supreme Court considered whether a particular statement or words are defamatory or not, how it can be decided and what criteria can be applied. In the said case, the appellant made certain statements about the sexual behaviour of people in Tamil Nadu which were published in a magazine, so many organizations filed the complaint against her on Sections 411 and 500 of Indian Penal Code. The Supreme Court held that a morally provocative statement does not make out any offence. So also the general statement made about the sexual habits of the people in Tamil Nadu does not make out any offence. The Supreme Court gave guidelines that any remark which could reasonably amount to the offence of defamation, is to be verified. The defamation though is a factual question and the statutory defences are available to the accused, the imperative question is whether the allegations in the complaint supported a prima facie case of defamation in the first place.[Para No.39]

    Defamation is broadly defined as false statement, damaging one's goodwill or reputation or image. Article 19 of the Constitution of India i.e., right to freedom, speech and expression gives no licence to any person to defame others as the fundamental right is enjoyed with reasonable restrictions. Generally, there is not much difference in goodwill and reputation of the company. It means a credibility and trustworthiness. Even something true may be also defamation in certain circumstances. Thus, lowering down one's estimation in the eyes of a public is defamation. A person may be dishonest, but he may be holding a reputation of high values. Thus, the right is jus in rem. However, the statement must be understood as defamatory by right thinking or reasonable minded persons. Therefore, there are certain yardsticks to decide whether the statement is defamatory or not, which are as follows :

(i) The statement to be read and understood with a context. It is to be read in its entirety.

(ii) Natural and ordinary meaning of the words is to be followed. What meaning the words would convey to the ordinary man is a litmus test.

(iii) Whether the statement brings hatred, stress, contempt and ridicule, will decide whether it is defamatory or not.

(iv) Imputation of fraud, dishonesty and corruption by rendering sub quality services, causing damage, sub quality manufacturing goods, use of abusive language are the glaring examples of defamation.

(v) Every incorrect statement or written statement or every statement which is disapproved or not liked is not necessarily defamatory statement. In such a case, defamation is taken very subjectively, but the Court has to use reasoning of the ordinary man and adopt objective approach.

    There are certain statements involving shades of irony, innuendo and sarcasm where indirectly or impliedly a person is defamed.[Para No.40]

    At the outset, it is made clear that while assessing the legality of the issuance of process in the offence of defamation, the exceptions laid down in section 499 of the Indian Penal Code are not to be taken into account as that is a defence available to the accused. Therefore, whether the order of issuance of process is correct or not is to be judged only after considering the averments made and the alleged statements made in the complaint.[Para No.41]

    Whether innocuous gossip or trivial accusation will be defamation or whether casual remarks or replies on social media is defamation, etc. are the issues that crop up before the Courts. However, a Judge has to see whether serious harm is caused to the person or it has a potential ill effect on his or her reputation. In the present case, the statements and the words do not manifest ill- will to damage the reputation of the complainant-company but it is a denial of the actions taken by Shapoorji Pallonji Group and Mr.Cyrus Mistry. The Judge has to be cautious while looking at the defamatory statements and has to control personification of his views about public feelings and opinion. It should be strictly a reasonable person's opinion. It is also to be kept in mind that a reasonable person is not a lawyer or a Judge but a common man; a right thinking common man. Thus, the test can be objectively applied.[Para No.44]

Public interest litigation is not a pill or panacea for all wrongs

The petitioner claims to have filed this petition as Pro Bono Publico, questioned for an oblique motive, therefore, this Court is required to first satisfy itself regarding the credentials of the petitioner, the prima-facie correctness of the information given by them because after all the attractive brand name of public interest litigation cannot be used for suspicious products of mischief. It has to be aimed at redressal of genuine public wrong or public injury and not publicity-oriented or founded on personal vendetta or private motive. The process of the Court cannot be abused for oblique considerations by masked phantoms who monitor at times from behind. The common rule of locus-standi in such cases is relaxed so as to enable the Court to look into the grievances complained of on behalf of the poor, deprive, deprivation, illiterate and the disabled and who cannot vindicate the legal wrong or legal injury caused to them for any violation of any constitutional or legal right. But, then while protecting the rights of the people from being violated in any manner, utmost care has to be taken that the Court does not transgress its jurisdiction nor does it entertain petitions which are motivated. After all, public interest litigation is not a pill or panacea for all wrongs. It is essentially meant to protect basic human rights of the weak and disadvantaged. Public interest litigation is a weapon which has to be used with great care and circumspection and the Judiciary has to be extremely careful to see that behind the beautiful veil of public interest an ugly private malice, vested interest and/or public interest seeking is not lurking. It is to be used as an effective weapon in the armoury of law for delivering justice to the citizens. Courts must do justice by promotion of good faith and prevent law from crafty invasions. It is for this reason that the Court must maintain social balance by interfering for the sake of justice and refuse to entertain where it is against the social justice and public good.[Para No.2]

    In the case of Shri Sachidanand Pandey and another versus The State of West Bengal and others AIR 1987 SC 1109, the Hon'ble Supreme Court observed as follows:-

"Today public spirited litigants rush to Courts to file cases in profusion under this attractive name. They must inspire confidence in Courts and among the public. They must be above suspicion. Public Interest Litigation has now come to stay. But one is led to think that it poses a threat to Courts and public alike. Such cases are now filed without any rhyme or reason. It is therefore necessary to lay down clear guidelines and to outline the correct parameters for entertainment of such petitions. If Courts do no restrict the free flow of such cases in the name of Public Interest Litigations, the traditional litigation will suffer and the Courts of law, instead of dispensing justice, will have to take upon themselves Administrative and executive functions. This does not mean that traditional litigation should stay out. They have to be tackled by other effective methods, like decentralizing the judicial system and entrusting majority of traditional litigation to Village Courts and Lok Adalats without the usual populist stance and by a complete restructuring of the procedural law which is the villain in delaying disposal of cases...
  It is only when Courts are apprised of gross violation of fundamental rights by a group or a class action or when basis human rights are invaded or when there are complaints of such acts as shock the judicial conscience that the Courts, especially the Supreme Court, should leave aside procedural shackles and hear such petitions and extend its jurisdiction under all available provisions for remedying the hardships and miseries of the needy, the underdog and the neglected. It is necessary to have some self-imposed restraint on Public Interest Litigants."[Para No.3]

    In S.P.Anand, Indore versus H.D.Deve Gowda and others (1996) 6 SCC 734, the Hon'ble Supreme Court held as under:-

"18..... It is of utmost importance that those who invoke this Court's jurisdiction seeking a waiver of the locus standi rule must exercise restraint in moving the Court by not plunging in areas wherein they are not well-versed. Such a litigant must not succumb to spasmodic sentiments and behave like a knight-errant roaming at will in pursuit of issues providing publicity. He must remember that as a person seeking to espouse a public cause, he owes it to the public as well as to the Court that he does not rush to Court without undertaking a research, even if he is qualified or competent to raise the issue. Besides, it must be remembered that a good cause can be lost if petitions are filed on half-baked information without proper research or by persons who are not qualified and competent to raise such issues as the rejection of such a petition may affect third party rights. Lastly, it must also be borne in mind that no one has a right to the waiver of the locus standi rule and the Court should permit it only when it is satisfied that the carriage of proceedings is in the competent hands of a person who is genuinely concerned in public interest and is not moved by other extraneous considerations. So also the Court must be careful to ensure that the process of the Court is not sought to be abused by a person who desires to persist with his point of view, almost carrying it to the point of obstinacy, by filing a series of petitions refusing to accept the Court's earlier decisions as concluding the point. We say this because when we drew the attention of the petitioner to earlier decisions of this Court, he brushed them aside, without so much as showing willingness to deal with them and without giving them a second look, as having become stale and irrelevant by passage of time and challenged their correctness on the specious plea that they needed reconsideration. Except for saying that they needed reconsideration he had no answer to the correctness of the decisions. Such a casual approach to considered decisions of this Court even by a person well- versed in law would not be countenanced. Instead, as pointed out earlier, he referred to decisions having no bearing on the question, like the decisions on cow slaughter cases, freedom of speech and expression, uniform civil code, etc; we need say no more except to point out that indiscriminate use of this important lever of public interest litigation would blunt the lever itself."[Para No.4]

Notice under Protection of Women from Domestic Violence Act should not be issued unless the Magistrate gets convinced that the presence of the respondents is necessary for further adjudication of the matter

When admittedly, the present petitioners were not residing with the husband of the second respondent, they could not be considered are the persons belonging shared household as is defined under Section 2(s) of the Act. As such, they are not necessary parties for the adjudication of the dispute in question.[Para No.18]

    In this regard, this court gainfully relies on the judgment of the Hon'ble Apex Court in the case of Shyamlal Devda and others V/s. Parimala, reported in (2020) 3 SCC 14, wherein it is held as under :

8. Section 18 of the Domestic Violence Act relates to protection order. In terms of Section 18 of the Act, intention of the legislature is to provide more protection to woman. Section 20 of the Act empowers the court to order for monetary relief to the "aggrieved party". When acts of domestic violence is alleged, before issuing notice, the court has to be prima facie satisfied that there have been instances of domestic violence.
9. In the present case, the respondent has made allegations of domestic violence against fourteen appellants. Appellant No.14 is the husband and appellants No.1 and 2 are the parents-in-law of the respondent. Appellants No.3, 5, 9, 11 and 12 are the brothers of father-in-law of the respondent. Appellants No.4, 6 and 10 are the wives of appellants No.3, 5 and 9 respectively. Appellants No.7 and 8 are the parents of appellant No.1. Appellants No.1 to 6 and 14 are residents of Chennai. Appellants No.7 to 10 are the residents of State of Rajasthan and appellants No.11 to 13 are the residents of State of Gujarat. Admittedly, the matrimonial house of the respondent and appellant No.1 has been at Chennai. Insofar as appellant No.14-husband of the respondent and appellants No.1 and 2-Parents-in-law, there are averments of alleging domestic violence alleging that they have taken away the jewellery of the respondent gifted to her by her father during marriage and the alleged acts of harassment to the respondent. There are no specific allegations as to how other relatives of appellant No.14 have caused the acts of domestic violence. It is also not known as to how other relatives who are residents of Gujarat and Rajasthan can be held responsible for award of monetary relief to the respondent. The High Court was not right in saying that there was prima facie case against the other appellants No.3 to 13. Since there are no specific allegations against appellants No.3 to 13, the criminal case of domestic violence against them cannot be continued and is liable to be quashed."[Para No.19]

    Applying the legal principles enunciated in the above decision to the case on hand, it is seen in the present case also except making bald statements without there being any specific details as to alleged domestic violence, present petitioners who are the relatives of husband of the second respondent and not residing with the husband of the second respondent, have been arraigned as party respondents only with an intention to harass them.[Para No.20]

    The learned Magistrate before issuing the notice, should have applied his mind as to the existence of prima- facie case as against the present petitioners are concerned.[Para No.21]

    In the impugned order, the learned Magistrate has not even noted that there exists a prima facie case against the present petitioners are concerned. The order dated 26.10.2016 whereby he issued notices to the present petitioners reads as under:

"Date: 26-10-2016 Register as Crl.misc. & put up.
Sd/-
Prl. JMFC., GVT.
Issue notices to respondents through CDPO, Gangavati returnable on 14.11 Sd/-
Prl. JMFC., GVT."[Para No.22]

    On perusal of the above order, it is crystal clear that the order is passed in a mechanical manner. Order does not indicate as to what prompted the learned Magistrate to proceed against the present petitioners also. It is needless to emphasize that issuance of process to a litigant in a matter of this nature should be only after the Magistrate gets convinced that the presence of the respondents/accused is necessary for further adjudication of the matter. The same must be indicated in the order issuing the process, if not in so many words.[Para No.23]