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Ingredients of offence u/s 397 IPC involve the use of any deadly weapon by offender while committing robbery, clarifies Delhi HC
Justice Manoj Kumar Ohri [22-02-2024]

Read Order:ANIL KUMAR v. STATE (NCT OF DELHI) [DEL HC- CRL.A. 885/2002]

 

LE Correspondent

 

New Delhi, February 28, 2024: While modifying the sentence of the appellant-accused to the period already undergone by him in a case of robbery, the Delhi High Court has observed that the offence u/s 397 IPCwas not made out asthe complainant did not see or realise that a deadly weapon was being used when money was being taken from his pocket by the accused.

 

The facts of the case suggested that in the year 1998,while travelling in a bus, accused-Anil Kumar placed a knife in the arm pit of Sanjeev Kumar by his right hand and removed Rs100 which Sanjeev Kumar was carrying in front pocket of his shirt. Sanjeev Kumar raised alarm and accused with the help of public was brought down from the bus with knife and the money. The Accomplice of accused managed to escaped. The Accused alongwith a knife and Rs 100 was handed over to the Inspector who recorded statement of Sanjeev Kumar Gupta and after making endorsement on the same got a case registered. While patrolling the area and investigation was taken over by him regarding recover of knife and he also got a case registered u/s 25/27 Arms Act.

 

The appellant-accused was considering an appeal instituted under Section 374 Cr.P.C. against the impugned judgment of conviction and order on sentence passed by the Sessions Court arising out of FIR registered under Sections 392/397 IPC & Sections 25/54/59 Arms Act. Benefit of Section 428 Cr.P.C was given and the sentences of seven years & one year were directed to run concurrently.

 

The Single-Judge Bench of Justice Manoj Kumar Ohri made it clear that “…the ingredients of the offence under Section 397 IPC involve the use of any deadly weapon by the offender at the time of committing robbery. The removal of Rs.100 from the pocket of the complainant stands established in light of the testimony of the complainant. However, it is to be seen whether any deadly weapon was ‘used’ at the time of commission.”

 

It was evident that though the appellant was armed with a knife, which indeed is a deadly weapon, the same was however, not within the vision of the complainant. The complainant had only felt some itching without having any notice of the knife in the hand of the appellant. Before he (complainant) could see the knife, the amount of Rs.100 had already been withdrawn from his pocket.

 

As per the Bench, the complainant did not see or realise that a deadly weapon i.e., knife was being used, and thus the offence in terms of Section 397 IPC couldn’t be made out, in as much as the money was taken from the pocket of the complainant before the knife could be seen by the complainant.

 

In light of such circumstances, the Bench upheld the appellant’s conviction qua the offence under Section 392 IPC however, he was acquitted of the offence under Section 397 IPC. The appellant’s conviction under Section 25 Arms Act was also upheld.Allowing the appeal, the Bench modified appellant’s sentence to the period already undergone by him.

Delhi HC allows man to move application before Child Welfare Committee seeking custody of his real sister, who was allegedly sexually by assaulted by their step-father
Justices Suresh Kumar Kait & Manoj Jain [22-02-2024]

Read Order:  AYAN ANSARI v. STATE (GNCT OF DELHI) AND ANR[DEL HC- W.P.(CRL) 542/2024]

 

LE Correspondent

 

New Delhi, February 28, 2024: The Delhi High Court has asked a litigant seeking custody of his minor sister to file an application before the Child Welfare Committee. The High Court was considering a habeas corpus petition where the victim showed inclination to stay with her real brother and she had also submitted that neither her mother nor her step-father, who sexually abused her, took care of her.

 

The Division Bench of Justice Suresh Kumar Kait and Justice Manoj Jain was considering a petition filed under Article 226 of the Constitution of India read with Section 482 Cr.P.C. in the form of Habeas Corpus seeking directions to the respondents to produce petitioner’s minor sister Miss A and to handover her custody to the petitioner.The girl’s real brother was seeking her custody on the ground that she was in confinement of shelter home and was deprived of her study, growth and betterment.

 

It had been averred in the present petition that on the complaint of Miss A, aged 15 years, studying in 6th class, an FIR under Sections 376/354-B IPC and Section 6 POCSO Act was registered against her step-father. She had alleged that in the first week of December, 2023, when her mother had gone to hospital to see her aunt, he had sexually assaulted her. She further alleged that the similar incident had happened earlier also for 2-3 times when her mother was out for work.

 

It was noted in the status report that during investigation of the case, the victim was examined before DCW Counsellor and was sent for medical examination. In her MLC, the victim levelled allegations of physical violence and assault against her step-father. Her statement under Section 164 Cr.P.C. was recorded wherein she supported her previous version. On her complaint, her step-father was arrested and was sent to judicial custody. The victim Miss A was sent to shelter home and since then she was living there.

 

The petitioner had undertaken that he was capable of maintaining his sister and to fulfil her educational and other requirements, and if her custody was handed over to him, he would take care of any exposure to her step-father.

 

The Bench took note of the fact that the victim Miss A submitted in the Court that neither her mother nor her step-father, who had sexually abused her and wasbehind bars, took any care of her and, therefore, she would like to stay with her real brother, i.e. the petitioner.

 

Referring to the judgment of the Top Court in Tejaswini Gaud v. Shekhar Jagdish Prasad Tewari [LQ/SC/2019/841]wherein it has been held that Habeas Corpus proceedings is not to justify or examine the legality of the custody of the child, the Bench said, “In the given facts, it seems to us that welfare of Miss A would be to live with her sibling.”

 

It was noticed that the victim Miss A is aged 15 years and has shown her willingness to stay with her real brother. “In the facts of the present case, when victim Miss A has raised serious allegations of sexual assault upon her step-father, due to which she has been forced to live in shelter home, sacrificing her educational and her normal well-being; liberty is granted to the petitioner to move an application before CWC-II, Lajpat Nagar, New Delhi seeking custody of Miss A and on receipt of the same, the CWC may consider grant of custody of Miss A to petitioner in accordance with law”, the Bench held while disposing of the petition.

Top Court sets aside conviction u/s 364A of IPC, however, imposes punishment u/s 363 in kidnapping case where demand & threat by accused had not been established by prosecution
Justices Abhay S. Oka & Ujjal Bhuyan [21-02-2024]

Read Order: WILLIAM STEPHEN v. THE STATE OF TAMIL NADU AND ANR [SC- CRIMINAL APPEAL NO. 607/2024]

 

Tulip Kanth

 

New Delhi, February 28, 2024:In a case of kidnapping where the Investigating Officer was not aware of the procedure to be followed for obtaining a certificate under Section 65B of the Evidence Act, the Supreme Court has held that the State Government must ensure that police officers are imparted proper training on this aspect.

 

The facts of the case which led to the filing of the appeal were such that the child/PW-2, 8 years old, was taking education in third standard. After returning from the school, the child-PW-2 used to visit the house of PW-5, who was running tuition classes. On October 20, 2010, the child-PW-2 did not return from the tuition class at the usual timing. The case of the prosecution was that after the tuition class was over, while the child-PW-2 was walking back towards his home, two persons (appellants-accused) came out of a Car and told the child-PW-2 that his father was going to purchase a car from them and, therefore, he should accompany them. Accordingly, the child-PW-2 got into the car and was kidnapped by the appellants-accused.

 

The case of the prosecution was that from a particular cell phone number, there was a call received by PW-3 of a male person who informed her that he has kidnapped the child. He demanded ransom of Rs5 lakh for releasing the child. PW-1 lodged a complaint on the same date. PW-14 (who was running a shop in the locality) informed PW-1 and PW-3 that he saw the child being taken in a grey colour Maruti Swift car. Accordingly, a First Information Report under Section 364A of IPC was registered. The next day, PW-19- Investigating Officerreached Pallikonda toll gate in Vellore District and interceptedthe car in which the appellants-accused along with the child were found. PW-19 arrested the accused and rescued the child.

 

The appellants-accused had approached the Top Court challenging the impugned judgment whereby their conviction and sentence had been confirmed. The appellants-accused had been convicted for the offence punishable under Section 364A read with Section 34 of the Indian Penal Code, 1860and both of them were sentenced to undergo life imprisonment.As far as the call records are concerned, the entire evidence of the prosecution had been discarded by the High Court for want of a certificate as required under Section 65B of the Indian Evidence Act, 1872.

 

It was the case of the appellants that there was absolutely no evidence regarding the demand of ransom or any threat being administered by the appellants-accused to kill the child or to put him to some harm. Therefore, the necessary ingredients of Section 364A of IPC had not been proved. It was contended that the victim child was tutored by his father-PW-1 and, therefore, his testimony couldn’t be considered.

 

The State Counsel submitted that this was a case where there was a reasonable apprehension in the mind of the PW-1 and PW-3 that the accused, who had kidnapped their son, may put their son to death or cause hurt to him. On the basis of the evidence of PW-1 and PW-3, the ingredients of Section 364A of IPC had been proved by the prosecution.

 

The Division Bench of Justice Abhay S. Oka & Justice Ujjal Bhuyan referred to Section 361 of IPC which defines ‘kidnapping from lawful guardianship’ and provides that whoever takes or entices any minor male child under sixteen years of age, out of the keeping of the lawful guardian of such minor, without the consent of such guardian, is said to kidnap such minor or person from lawful guardianship.“In this case, there is no dispute about the lawful guardianship of PW-1 and PW-3. The kidnapping from lawful guardianship is made punishable under Section 363 of IPC and the maximum punishment is imprisonment of either description which may extend to seven years”, it said.

 

The Bench further made it clear that the first ingredient of Section 364A is that there should be a kidnapping or abduction of any person or a person should be kept in detention after such kidnapping or abduction. If the said act is coupled with a threat to cause death or hurt to such person, an offence under Section 364A is attracted. If the first act of kidnapping or abduction of a person or keeping him in detention after such kidnapping is coupled with such conduct of the person kidnapping which gives rise to a reasonable apprehension that the kidnapped or abducted person may be put to death or hurt, still Section 364A will be attracted.

 

Noting that the child’s version had not been shaken in the cross-examination, the Bench stated that there was hardly any challenge to the main incident.A suggestion was given to him that the men who had taken him in the car were the ones who were acquaintance with him and his father. This was the defence as reflected from the cross-examination.

 

Considering the fact that nothing was brought on record by the accused that there was a prior enmity or animosity between the parents of the victim child and the accused, the Bench observed that there was no reason for the father of the victim to falsely implicate the appellants and tutor the child to depose against them. “Therefore, the case sought to be made out that the child was tutored by his father was not rightly accepted by the Courts below. Therefore, it can be said that the ‘kidnapping’ within the meaning of Section 361 of IPC was established by the prosecution. Hence, the appellants are guilty of the offence punishable under Section 363 of IPC”, the Bench said.

 

 

As per the Top Court, the record relating to the call details had been discarded by the High Court as there was no certification under Section 65B of the Evidence Act. The call records could have been the best possible evidence for the prosecution to prove the threats allegedly administered by the accused and the demand of ransom. However, it was stated that the prosecution was not able to connect the alleged demand and the threat with both the accused. Therefore, the ingredients of Section 364A of IPC were not proved by the prosecution inasmuch as the prosecution failed to lead cogent evidence to establish the second part of Section 364A about the threats given by the accused to cause death or hurt to such person.

 

“In a given case, if the threats given to the parents or the close relatives of the kidnapped person by the accused are established, then a case can be made out that there was a reasonable apprehension that the person kidnapped may be put to death or hurt may be caused to him. However, in this case, the demand and threat by the accused have not been established by the prosecution”, the Bench held.

 

Setting aside the conviction of the appellants for the offence punishable under Section 364A of IPC, the Bench held that there will be a conviction for the lesser offence of kidnapping defined by Section 361 of IPC, which is punishable under Section 363 of IPC. Considering that the maximum sentence for the offences punishable under Section 363 of IPC extends to seven years with fine and the appellants had undergone actual incarceration for a period of more than eight years,the Bench directed that they shall be forthwith set at liberty.

 

Lastly, noticing that the Investigating Officer, was not aware of the procedure to be followed for obtaining a certificate under Section 65B of the Evidence Act, the Bench said, “He cannot be blamed as a proper training was not imparted to him. The State Government must ensure that the Police Officers are imparted proper training on this aspect.”

Delhi HC quashes punishment ticket as no show cause notice was issued to inmate in terms of Rule 1272 of Delhi Prisons Rulesbefore awarding the same
Justice Amit Bansal [23-02-2024]

Read Order: KULDEEP versus STATE OF NCT OF DELHI [DEL HC- W.P.(CRL) 1981/2023]

 

LE Correspondent

 

New Delhi, February 28, 2024:After considering the fact that no show cause notice was issued to the petitioner-inmate before awarding hima punishment ticket, the Delhi High Court has granted him relief by quashing the same.

 

The Single-Judge Bench of Justice Amit Bansal was considering a petition seeking quashing of a Punishment Ticket awarded to the petitioner on February  13, 2018. The facts suggested that the inmate Kuldeep started arguing and misbehaving with the jail officialswhen he was not allowed to make a phone call. As the inmate had violated the rules mentioned in the Delhi Jail Manual-Chapter-V-Discipline of Prison, it was held that he may be punished accordingly.As per the Punishment Ticket, meeting, mobile phone and canteen facilities were ordered to be stopped for 15 days.

 

The petitioner was admitted in Central Jail, Rohini, New Delhi, as an undertrial prisoner in an FIR registered under Sections 302/201 of the Indian Penal Code, 1860.

 

It was the case of the petitioner that the Punishment Ticket was awarded without issuing the requisite notice. Further, the petitioner was not provided with a copy of the Punishment Ticket, which was forwarded to the concerned Inspecting Judge, as mandated in terms of Section 53 of the Delhi Prisons Act, 2000 and Rule 1272 of the Delhi Prisons Rules, 2018. It was also submitted that the overall conduct of the petitioner in the Nominal Roll had been shown as unsatisfactory.

 

The State Counsel opposed quashing of the Punishment Ticket. In the Status Report filed on behalf of the State, it was stated that the petitioner had misbehaved and threatened the jail officials. Consequently, the Punishment Ticket was raised wherein the petitioner was awarded the following punishment: “Mulakat, Vodaphone (Mobile Phone) and Canteen facility to be stopped for 15 days.”

 

Referring to section 53 of the Delhi Prison Act, 2000 and the Rule 1272 of the Delhi Prison Rules, 2018, the Bench observed that the Status Report filed on behalf of the State was silent on the aspect of whether any notice was issued to the petitioner before awarding the Punishment Ticket.

 

The High Court was of the opinion that that present case was squarely covered by the judgment of the Coordinate Bench in Vipin Sharma v. State (Govt. of NCT of Delhi) wherein a punishment ticket was quashed for want of following the prescribed procedure. It was held that once the procedure for awarding the punishment has been prescribed, it has to be complied with in its true letter, spirit and intent.

 

“In view of the discussion above, I am of the considered view that the Punishment Ticket has been awarded to the petitioner without following the procedure prescribed under the aforesaid provisions of the Delhi Prisons Act, 2000 and the Delhi Prisons Rules, 2018. The record reveals that no show cause notice was issued to the petitioner in terms of Rule 1272 before awarding the Punishment Ticket”, the Bench said.

 

Thus, allowing the petition, the Bench quashed the Punishment Ticket.

Provisional Liquidator can represent the Company in proceedings u/s 68 of Foreign Exchange Regulations Act and not the Chairman, holds Delhi HC
Justice Navin Chawla [26-02-2024]

 

Read Order: ABHISHEK VERMA v. ENFORCEMENT DIRECTORATE [SC- CRL.M.C. 3732/2011]

 

Tulip Kanth

 

New Delhi, February 27, 2024: In a case pertaining to the Foreign Exchange Regulations Act, 1973, where the company was undergoing liquidation, the Delhi High Court has observed that in terms of Section 457 of the Companies Act, 1956, it is only the Provisional Liquidator or person authorized by the Provisional Liquidator, who could represent the Company in the trial.

 

The Single-Judge Bench of Justice Navin Chawla was considering a petition has filed under Section 482 of the Code of Criminal Procedure, 1973 seeking quashing of an order on charge passed by the Additional Chief Metropolitan Magistrate to the extent that the petitioner was not representing M/s ESAM India Ltd. The ACMM had held that the accused no. 1 Esam India Limited through the accused no. 2 Abhishek Verma who was the Chairman of the Accused no.1 Company had contravened the provisions of Section for the alleged violations u/s. 8 (3), 8(4) and Section 68 of FERA for which a charge u/s. 56 of FERA was required to be framed.

 

It was alleged, that in the year 1997 foreign exchange was acquired to the turne of US dollar 3,40,000, for the particular purpose of importing computer system from M/s. European Capital Ltd. Sharja UAE and the accused had failed to import the said goods of value of representing the foreign exchange so acquired without any permission of RBI.  The limited challenge of the petitioner to the Impugned Order and charge was that the Company-M/s Esam India Limited, being in Liquidation and a Provisional Liquidator having been appointed for it, only the Provisional Liquidator could represent the Company in the proceedings pending before the ACMM and not the petitioner herein.

 

Referring to Section 68(1), the Bench observed that where the offence is alleged to have been committed by a Company, every person who, at the time the contravention was committed, was in charge of, and was responsible to the company for the conduct of business of the company ‘as well as the company’, shall be deemed to be guilty of the contravention/offence under the Act and shall be liable to be proceeded against and punished accordingly. It was also clarified that the proviso to this provision casts a burden on such person to prove that the contravention took place without his knowledge or that he had exercised all due diligence to prevent such contravention, to escape the liability and punishment for the offence committed by the company.

 

Moreover, Section 68(2) further states that where the contravention of any of the provisions of the Act or of any Rule, Direction or Order made thereunder has been committed by a company and it is proved that the contravention has taken place with the consent or connivance of, or is attributable to any neglect on the part of any director, manager, secretary or other officer of the company, such director, manager, secretary or other officer ‘shall also be deemed to be guilty of the contravention and shall be liable to be proceeded against and punished accordingly’.

 

The only issue before the High Court was whether the charge against the Company could be framed through the petitioner.

 

Placing reliance upon section 305 CrPC, the Bench observed that where the accused person is a company, it may appoint a representative for the purpose of the trial, and where such representative appears, any requirement of the CrPC that anything shall be done in the presence of the accused or shall be read or stated or explained to the accused, shall be construed as a requirement that that thing shall be done in the presence of the representative or read or stated or explained to such representative. Section 305(4) CrPC states that where the representative of a company does not appear, any such requirement as is referred to in Section 305(3) CrPC shall not apply.

 

The Bench took note of the fact that there was no authorization of the petitioner to represent the Company in the trial. In fact, the Company was in liquidation and a Provisional Liquidator already stood appointed for the Company.

 

“In terms of Section 457 of the Companies Act, 1956 (as was then applicable), it is only the Provisional Liquidator or person authorized by the Provisional Liquidator, who could represent the Company in the trial. The petitioner, therefore, cannot be said to be representing the Company. It is another thing to say that he would face the trial in his individual capacity as an accused, but another thing to say that he would also face the trial as a representative of the Company”, the High Court opined.

 

The Bench also highlighted the fact that though the above issue was flagged before the Trial Court, the Trial Court proceeded to frame the charge against the Company taking the petitioner herein to be representing the Company. As per the Bench, the same couldn’t be sustained.

 

The Bench concluded the matter by observing, “In my view, therefore, the learned Trial Court has clearly erred in framing the charge against the Company through the petitioner. The charge against the Company has to be through the Provisional Liquidator appointed for the Company. The impugned order dated 03.08.2007 shall stand modified to this limited extent. It is clarified that the charges framed against the petitioner in his individual capacity have not been interfered with by this Court.”

 

 

Delhi HC quashes cheque bounce case where notice of demand called upon accused to pay double the amount of cheque without specifying any reason
Justice Navin Chawla [26-02-2024]

Read Order: MAHDOOM BAWA BAHRUDEEN NOORUL v. KAVERI PLASTICS [DEL HC- CRL.M.C. 2164/2022]

 

LE Correspondent

 

New Delhi, February 27, 2024: The Delhi High Court has made it clear that no cause of action for filing of cheque-bounce complaint under Section 138 of the NI Act would accrue in favour of the complainant when the notice itself is defective.

 

A complaint case had been filed by the respondent against the petitioner, arraying the petitioner herein as the accused no.3. It had been alleged therein that the accused no.1, Nafto Gaz India Pvt. Ltd., entered into a Memorandum of Understanding with the respondent-complainant pertaining to the sale of land in New Delhi and also agreed to take on lease the said property till the final sale deed was executed. It also issued certain cheques towards the liability of the payment of the rent for the leased property.

 

It was stated that a Cheque drawn on the Indian Overseas Bank, R.K.Puram, Delhi amounting to Rs 1 crore issued by the accused no.1 was returned dishonoured with the remark 'funds insufficient'. It was alleged that on the dishonour of the said cheque, the respondent sent a legal demand notice on which the accused nos.4 and 5 gave a false and frivolous reply. It was also alleged that the accused no.3/petitioner herein avoided service of the demand notice.

 

The accused in the complaint, including the petitioner were summoned by an order passed by the Metropolitan Magistrate. At the stage of framing of notice, the petitioner along with the co-accused, filed an application seeking discharge, contending that the notice of demand called upon the accused to pay double the amount of the cheque issued, and therefore, was not in terms of Proviso (b) of Section 138 of the NI Act. It was submitted that the complaint was not maintainable. The said application was dismissed by the Metropolitan Magistrate holding that the same was not maintainable. The petitioner thereafter filed the petition before the Delhi High Court.

 

Placing reliance upon Proviso (b) to Section 138 of the NI Act, the Single-Judge Bench of Justice Navin Chawla opined that the cause of action for filing of the complaint would accrue to the complainant only where the complainant makes a demand for the payment of the “said amount of money” by giving a notice in writing to the drawer of the cheque within 30 days of the receipt of the information by the complainant from the bank regarding the return of the cheque as unpaid. Further referring to Dashrathbhai Trikambhai Patel v. Hitesh Mahendrabhai Patel & Anr., [LQ/SC/2022/1270], the Bench opined that the Supreme Court has clarified that 'the said amount' mentioned in Proviso (b) to Section 138 of the NI Act is the cheque amount. It has further been clarified that if no such demand is made, the notice would fall short of the legal requirement. Moreover, if any additional claims are also made in the notice, unless they are severable in nature, the cause of action for filing of the complaint shall fail.

 

The Bench took note of the fact that the notice of demand demanded Rs 2 crore from the accused instead of the cheque amount of Rs 1 crore. It also did not specify the reason for demanding the amount in excess. “Therefore, in view of the above referred judgments, the notice was not in compliance with Proviso (b) to Section 138 of the NI Act”, the Bench said while also adding, “Section 138 of the NI Act gives rise to a criminal liability. It must therefore be construed strictly and the condition for invoking the same must be strictly complied with.”

 

The High Court also observed that it would be apparent that the plea of the respondent of there being a typographical error in the notice, even if accepted on facts, couldn’t be accepted in law to give rise to a cause of action to the respondent to maintain the complaint under Section 138. The notice being defective, the cause of action for filing of the complaint under Section 138 of the NI Act did not accrue in favour of the respondent.

 

“The plea of the respondent that since the complaint has been pending for long, this Court should not exercise its power under Section 482 of Cr. P.C. to quash the complaint, also cannot be accepted. The petitioner cannot be made to suffer the agony of defending a complaint, which on the face of it is not maintainable”, the Bench further added.

 

Thus, allowing the appeal, the Bench quashed the criminal complaint.

Registry cannot decide whether a review petition, after being dismissed in open Court hearing, merits relook through curative jurisdiction: SC
Justices Aniruddha Bose & Sudhanshu Dhulia [26-02-2024]

Read Order: M/S BRAHMAPUTRA CONCRETE PIPE INDUSTRIES ETC v. THE ASSAM STATE ELECTRICITY  BOARD AND OTHERS [SC- MISC. APPLICATION (CIVIL) NO. 2045 OF 2022]

 

 

Tulip Kanth

 

New Delhi, February 27, 2024: The Supreme Court has clarified that a curative petition arising from an order dismissing a review petition upon hearing in open Court must contain a plea or prayer seeking excuse from compliance of making averment as contained in Order XLVIII Rule 2(1) of the Supreme Court Rules, 2013. The proper course for the Registry would be to obtain instructions from the Judge in chambers and thereafter communicate such instructions to the parties.

 

The origin of the dispute related to the maintainability of a suit instituted by the appellant under the Interest on Delayed Payments to Small Scale and Ancillary Industrial Undertakings Act, 1993 (1993 Act). The suit of the appellant was decreed by the Civil Judge (Trial Court) but was dismissed by the High Court in appeal mainly on the ground of the suit not being maintainable. The High Court had held that the suit under the 1993 Act would not lie in respect of the transactions which had taken place prior to 23.09.1992, the date on which the Act became operational.

 

The appeal against the High Court judgment was dismissed by a three Judge Bench of the Top Court on 23.01.2019. The plea of review of the said judgment also failed and the review petition was dismissed after open court hearing. A Full Bench of the Gauhati High Court opined that the right to claim interest under the said statute would not extend to agreements or contracts entered prior to 23.09.1992.

 

It was held by the three Judge Bench of the Top Court that the material date for instituting the suit for interest would depend on whether delivery was made by the supplier after coming into operation of the said statute or not. The three Judge Bench of this Court dismissed the review petition in open court after oral hearing, finding no error apparent on the face of record of the judgment under review. It was thereafter the curative petition was instituted.

 

The main point urged on behalf of the appellant was that the Registrar has no power or jurisdiction to decline registration of a curative petition and it should be decided by a Bench of this Court. The Counsel for the respondent referred to the thirty days’ limitation period for filing a review petition in terms of Order XLVII, Rule 2 of the 2013 Rules.

 

“Our opinion on this point is that the curative jurisdiction being a special jurisdiction derived from inherent power or jurisdiction of this Court, the limitation prescribed for filing of review petition cannot be extended to apply in the cases of curative petition. We hold so because curative jurisdiction of this Court does not flow from its power to review, but this jurisdiction is derived from Articles 129 and 142 of the Constitution of India. Moreover, Rule 3 of Order XLVIII of the 2013 Rules specifically stipulates that curative petition has to be filed within reasonable time from the date of judgment or order passed in a review petition. No timeframe has been formulated in the 2013 Rules either for filing a curative petition”, the Division Bench of Justice Aniruddha Bose & Justice Sudhanshu Dhulia clarified.

 

The Top Court further stated that oral hearing has not altogether been dispensed with in curative jurisdiction also and it has been left at the discretion of the Bench to decide as to whether the curative petitions ought to be dismissed by circulation without oral arguments or there shall be oral submission after notice to the opposite party. This procedure is contained in Rule 4 of Order XLVIII of the 2013 Rules.

 

It was further observed that while in the case Rupa Ashok Hurra -vs- Ashok Hurra and Another [LQ/SC/2002/462], it was specified by the five Judge Bench that a curative petition must contain an averment that review petition was dismissed by circulation, the consequence of dismissal on oral hearing in open Court has not been specified in that judgment. Rules have been framed lifting the directions of this Court in the case of Rupa Ashok Hurra (supra) to statutory level, it added.

 

The issue to be addressed was whether Registry has the power to dismiss a curative petition solely on the ground that no averment has been made to the effect that the review petition was dismissed by circulation.

 

The Bench opined that the Registry cannot be vested with power to decide whether a review petition, after being dismissed in open Court hearing, merited relook through the curative jurisdiction. This would be a judicial exercise. The Registry in a situation of this nature, cannot keep the matter pending as “defective” either, as is done in the cases of delayed filing of petition unaccompanied by applications for condonation of delay.

 

“In cases like the present one, curing the defect would not be within the Registry’s jurisdiction. We also do not think an appeal under Order XV Rule 5 of the 2013 Rules would be the proper course, as under that Rule situations in which Registry can refuse to entertain a petition have been clearly expressed. Failure to make averment in terms of Rule 2(1) of Order XLVIII of the 2013 Rules is not one of the conditions which vests the Registry to refuse to receive a curative petition in itself”, the Bench noted while adding, “In our opinion, the course to be followed by the Registry in a proceeding of this nature is contained in Order LV Rule 2 of the 2013 Rules.”

 

The Bench further observed, “We are of the view that a curative petition arising from an order dismissing a review petition upon hearing in open Court must contain a plea or prayer seeking excuse from compliance of making averment as contained in Order XLVIII Rule 2(1) of the 2013 Rules. The proper course for the Registry on receiving such a petition with a prayer to be excused from the above requirement would be to obtain instructions from the Judge in chambers and thereafter communicate such instructions to the parties.

 

Referring to second part of Rule 2 which says that the Registrar herself can direct the applicant to serve the other party with a notice of motion returnable before the Court while she opines that it is desirable that the application should be dealt with in the open Court, the Bench held that the said Rule would not apply in a case where the applicant seeking to invoke curative jurisdiction approaches this Court after the review petition is dismissed in open court hearing.

 

“The applicant for invoking curative jurisdiction, in such a situation, as we have already observed, must file an application praying to be excused from compliance with Rule 2(1) of Order XLVIII of the 2013 Rules and such application shall also contain a request for the matter to be placed before the chamber judge for proper instructions. In other cases pertaining to curative petitions, in which the review plea is dismissed by circulation, the curative petition has to be circulated first to a Bench of three senior-most Judges of this Court and the Judges who passed the judgment complained of, if available. Thereafter, the course prescribed in sub-clauses (2), (3) and (4) of Rule 4 of Order XLVIII of the 2013 Rules shall be followed as may be applicable”, it held.

 

Thus, the Bench set aside the impugned order as this course was not followed when the order was passed declining registration of the curative petition.  The Top Court also refrained from entertaining the curative petitions and held that no purpose would be served in sending the matter back to the Chamber Judge for instructions as the curative petitions were filed in the year 2020 and substantial time had lapsed since then.

Entire case of prosecution is based on unauthorizedly & illegally collected sample of meat: Apex Court upholds order quashing FIR alleging illegal storage of cow meat
Justices Abhay S. Oka & Ujjal Bhuyan [20-02-2024]

Read Order: JOSHINE ANTONY v. SMT. ASIFA SULTANA & ORS [SC- CRIMINAL APPEAL NO(S). 1046 OF 2024]

 

 

Tulip Kanth

 

New Delhi, February 27, 2024: While observing that the power of an Assistant Director of the Veterinary Department under the Karnataka Prevention of Cow Slaughter and Cattle Preservation Act, 1964 is confined only to enter and inspect the premises, the Supreme Court has held that the act of collection of sample of meat by the Assistant Director was completely illegal.

 

The appellant claiming to be Honorary Animal Welfare Officer complained to the fifth respondent- Dr Omkar Patil, Assistant Director of the Veterinary Department about illegal storage of a large quantity of meat of cow in a godown of the first to third respondents.

 

While registering the First Information Report, the offences punishable under Sections 420 and 429 of the Indian Penal Code, 1860 were applied and later on, Sections 4 and 5 of the Karnataka Prevention of Cow Slaughter and Cattle Preservation Act, 1964 were added. The High Court in exercise of its jurisdiction under Section 482 of the Code of Criminal Procedure, 1973 had quashed the First Information Report.

 

It was the appellant’s case that huge quantity of meat of cow was found in the custody of the first to third respondents and the High Court interjected even before the investigation could proceed. There was overwhelming prima facie evidence on record to show that the meat found in the custody of the first to third respondents was a meat of cow and, therefore, prima facie, the offences under Sections 4 and 5 of the 1964 Act were attracted. It was further submitted that the fifth respondent-herein was duly authorized officer under Section 10 of the 1964 Act and he had authority to enter any premises and to inspect the said premises as he had a reason to believe that the offence under the 1964 Act has been committed.

 

The Division Bench of Justice Abhay S. Oka & Justice Ujjal Bhuyan noted the fact that the fifth respondent, who was the Assistant Director of the Veterinary Department, on information received from the appellant, entered the factory premises of the first to third respondents and opened two packets kept in ice and collected a sample of meat from the packets. The sample was put in the thermocol box and packed by putting ice around it. The seized sample was sent for analysis.

 

“Thus, the sample was collected not by a police officer but by the fifth respondent, who was the Assistant Director of the Veterinary Department. Assuming that he was an authorized person, his powers were very limited under Section 10 of the 1964 Act”, the Bench opined.

 

Noting that the power was confined to enter and inspect, the Bench further added, “Under the 1964 Act, he had no power to seize any sample of meat. What is interesting to note is that, on the same day, there was one more panchnama drawn in presence of an Assistant Sub-Inspector. The said panchnama records that the sample was already collected and has been sent for testing to the expert. It also records that the meat was stored in a cold storage, which was not functioning. Therefore, the seizure of three rooms and meat packets was made. The police officer did not collect any sample for sending it for analysis.”

 

The Apex Court was of the view that the sample of the meat was admittedly collected by the Assistant Director, who had no authority in law to collect the sample. He did not collect the sample after notice to the first to third respondents. Thus, the act of collection of sample by the Assistant Director was held to be completely illegal by the Bench.

 

Noticing that it was this sample which was sent for chemical analysis, the Bench held, “Thus, the entire case of the prosecution is based on unauthorizedly and illegally collected sample of the meat. Therefore, the High Court was right when it interfered by quashing the First Information Report.”

 

Finding no error in the view taken by the High Court, the Bench dismissed the appeal.

Before a Court employs its discretion to carry out witness examination by video conferencing, it will obtain consent of the accused: Delhi HC on Video Conferencing Rules
Justice Anoop Kumar Mendiratta [26-02-2024]

Read Order: RAM NIWAS DHURIYA v. CENTRAL BUREAU OF INVESTIGATION [DEL HC- CRL.M.C. 1193/2024]

 

 

Tulip Kanth

 

New Delhi, February 27, 2024: In a case where the Trial Judge had failed to obtain the consent of all the accused persons prior to passing the order for recording the evidence through video conferencing, the Delhi High Court has remanded the matter back to the Trial Court in order to consider the issue afresh after taking into consideration the consent of all such accused persons.

 

The Single-Judge Bench of Justice Anoop Kumar Mendiratta was considering a Petition filed u/s 482 Cr.P.C. read with Article 227 of the Constitution of India on behalf of the petitioner for setting aside order of the Special Judge (PC Act) whereby witness (Shri K.G. Sathyasingan) had been allowed to be examined through video conferencing.

 

Petitioner, who is one of the accused before the Trial Court moved an application under Section 138 of Indian Evidence Act, 1872 that witness Shri K.G. Sathyasingan be examined by directing his physical presence and not through video conferencing, since the witness was to be confronted with several documents during cross-examination and the same would not have been feasible on examination of the witness through video conferencing.

 

Considering that the case was being protracted and is one of the oldest pending matters before the Trial Court, the witness was contacted telephonically by the Trial Judge through Reader on his own, who informed that he is no more a citizen of India and is residing in Australia. Witness further apprised that he was 79 years old, suffering from number of ailments, due to which he was unable to travel long distance for physical appearance as a witness. The Trial Court also noticed that CBI had not moved any formal application for conducting the evidence of remaining witnesses through video conferencing.

 

Hence, the Trial Court vide the impugned order considered the issue, “whether the witness Shri K.G. Sathyasingan (Sanctioning Authority) is/isn't to be examined as witness through video conferencing” and dismissed the application under Section 138. The Trial Court considered the fact that the petitioner is not a public servant and testimony of witness is relevant qua public servant D.S. Rawat (Accused No.1 before the Trial Court). Further, referring to Video Conferencing Rules as notified vide Notification No.348/Rules/DHC dated 26.10.2021, directions were issued for recording of evidence of witness Shri K.G. Sathyasingan through video conferencing on 28.02.2024.

 

It was the petitioner’s case that the Trial Court while passing the impugned order ignored Rule 5.3.11 of the Video Conferencing Rules notified by the High Court of Delhi on 26.10.2021, which mandates that the Judge shall obtain the consent of all the accused, prior to passing the order for recording the evidence through video conferencing. The course adopted by the Trial Court was stated to be contrary to Rules since no such consent was obtained from all the accused and the concerns of the petitioner as stated in application under Section 138 Indian Evidence Act, 1872 were not addressed

 

The Single-Judge Bench of Justice Anoop Kumar Mendiratta was of the view that the examination of Shri K.G. Sathyasingan (witness) was imperative in order to prove the 'sanction order' accorded for prosecution of accused D.S. Rawat. The petitioner’s Counsel had stated that the witness needed to be cross-examined on behalf of petitioner/co-accused since allegations of conspiracy had been leveled against all the accused and Shri K.G. Sathyasingan accorded the sanction after considering the charge-sheet along with voluminous bank record.

 

“Considering the facts and circumstances, it may be preposterous at this stage to conclude that right of cross-examination of co-accused can be foreclosed only on the ground that the witness had accorded sanction only in respect of accused D.S. Rawat. The learned Trial Court is required to appropriately look into the concerns of the petitioner/co-accused in this regard and ensure that they are able to effectively exercise their rights of cross-examination and put up the relevant documents to the witness, if required, during cross-examination”, the Bench said.

 

Reference was also made to Rule 5.3.11 of Video Conferencing Rules dated 26.10.2021, which have been issued to consolidate, unify and streamline the procedure relating to the use of video conferencing for the Courts and facilitate video conferencing at different stages of judicial proceedings.

 

“A bare perusal of Rule 5.3.11 reflects that before a Court employs its discretion to carry out witness examination by video conferencing, it will obtain the consent of the accused. The very purpose of obtaining the consent of accused is to address their concerns and ensure that the right of cross-examination is effectively exercised and they are not prejudiced in any manner. The access to documents relied upon by the prosecution to the witness at the time of examination/cross-examination needs to be ensured”, the Bench asserted.

 

The High Court opined that while passing the impugned order, the Trial Court inadvertently appeared to have ignored the provision of seeking consent of all the accused in terms of Rule 5.3.11 as well as to take into consideration their concerns for confronting the witness with documents relied in the charge-sheet without any handicap, for effective cross-examination.

 

Thus, the Bench remanded the matter back to the Trial Court to consider the issue afresh after taking into consideration the consent of all the accused and concerns, if any, before directing recording of evidence of Shri K.G. Sathyasingan through video conferencing.

 

“The Court shall also ensure that the witness is able to have access to the documents/official records relied by prosecution with which the accused intend to confront during cross-examination”, the Bench further ordered.

Top Court puts end to protracted litigation by confirming ejectment order passed against tenants of shops owned by landlords managing affairs of Arulmighu Dhandayuthpani Swamy Temple in Tamil Nadu
Justices J. K. Maheshwari & Sanjay Karol [23-02-2024]

Read Order: K. BALASUBRAMANI ETC v. THE TAMIL NADU GOVERNMENT AND OTHERS ETC [SC-SLP (C) NOs. 11225-11256]

 

 

Tulip Kanth

 

New Delhi, February 27, 2024: The Supreme Court has affirmed the ejectment orders passed by the authorities under the Hindu Religious and Charitable Endowments Act, 1959 against the petitioners, who were inducted as tenants/licencees in different shops in the premises of Arulmighu Dhandayuthpani Swamy Temple, Palani.

 

The facts of the case suggested that the petitioners (tenants) were inducted as tenants/licencees in different shops, vide different transactions, owned by the respondents herein (landlords). The respondent-landlords are managing the affairs of a temple, i.e., Arulmighu Dhandayuthpani Swamy Temple, Palani, under the Hindu Religious and Charitable Endowments Act, 1959.

 

Post-termination of their original lease/licence period, the tenants stood declared as encroachers under the provisions of Section 78 of the Act. In terms of the impugned judgment dated 22.03.2021 passed in a batch of writ petitions initiated by the instant tenants, the High Court, while affirming the impugned action, directed the tenants to hand over the vacant and peaceful possession of the premises, individually occupied by each one of the tenants, to the landlord.

 

The Division Bench of Justice J. K. Maheshwari and Justice Sanjay Karol noted that on 08.01.2024, when the matters came up for hearing, with an endeavor to put an end to the protracted litigation, certain offers were exchanged between the parties through their respective counsel.

 

The Bench affirmed the order of ejectment passed by the authorities under the provisions of the Act.  With respect to 19 tenants, the Bench held that it would be open for the landlord to forthwith initiate proceedings seeking possession in accordance with law. The Top Court was constrained to pass such an order as despite opportunities afforded till date, they had not cleared arrears of rent/occupation charges. With respect to 51 more tenants, the Bench opined that they were allowed to occupy the premises for a further period of six months.

 

Before handing over the possession of the demised premises, these tenants shall clear all statutory dues as mutually agreed inter se the parties, the Bench further added.

 

The Top Court concluded the matter by further observing that the landlords intend to develop the property, providing better facilities to the pilgrims. “However, should the landlord ever carry out development, by constructing shops, in that event these tenants (51 in number) shall be given preferential treatment, subject of course, to their participating in the process of allotment and matching the price bid of the highest bidder. In the event the tenant(s) violating any of these terms, it shall be open to the landlord(s) to initiate the proceedings for obtaining possession in terms of the order of ejectment and also initiate proceedings for contempt, if so advised”, the Bench held.

‘Electoral misconduct by the presiding officer himself’: Top Court declares AAP-Congress candidate Kuldeep Kumar as Mayor of Chandigarh Municipal Corporation
Chief Justice D.Y. Chandrachud, Justices J. B. Pardiwala & Manoj Misra [20-02-2024]

Read Order: Kuldeep Kumar v. U.T. Chandigarh and Others[ SC- Civil Appeal No. 2874 of 2024]

 

LE Correspondent

 

New Delhi, February 27, 2024: The Supreme Court last week set aside an earlier result of the Chandigarh Mayoral Polls while declaring the petitioner-Kuldeep Kumar, a candidate fielded by an alliance between the Aam Aadmi Party and the Indian National Congress, as the winner. The Top Court has also issued a show cause notice to the Presiding Officer Anil Masih for unlawfully altering the course of the election.

 

The factual background of the case was that Vinay Pratap Singh, IAS, Deputy Commissioner, Union Territory of Chandigarh acting in his capacity as the Prescribed Authority directed the convening of a meeting of the Councillors in terms of Section 38 of Punjab Municipal Corporation Act 1976 (Act) on January 18, 2024.

 

A writ petition under Article 226 of the Constitution was instituted by the appellant in the High Court seeking a direction to the Deputy Commissioner to ensure that free and fair elections for the posts of Mayor, Senior Deputy Mayor, and Deputy Mayor of the Corporation and the elected Councillors take place. Two candidates were in the fray for the post of Mayor. The appellant, Kuldeep Kumar, was a candidate fielded by an alliance between the Aam Aadmi Party and the Indian National Congress. The second candidate, Manoj Kumar Sonkar, the eighth respondent was a candidate set up by the Bharatiya Janta Party. The Presiding Officer declared the result of the election in favour of the eighth respondent.

 

Alleging electoral malpractices by the presiding officer/seventh respondent during the counting of votes, the appellant instituted a writ petition before the High Court of Punjab & Haryana. A Division Bench declined to stay the result of the election. In pursuance of the directions of the Top Court, the entire record pertaining to the election of the Mayor was sequestered under the custody of the Registrar General of the High Court, including (i) the ballot papers; (ii) the video footage of the electoral process; and (iii) all material in the custody of the Returning Officer/Presiding Officer. The appeal before the Supreme Court arose from the interim order of the Division Bench.

 

It was the case of the petitioner that a deliberate effort was made by the Presiding Officer to treat eight of the votes which were cast in favour of the appellant as invalid and to declare the eighth respondent as the elected candidate on the basis that he had secured sixteen votes. It was submitted that the electoral process had been vitiated by the misconduct of the presiding authority, as a consequence of which the democratic process leading up to the election of the Mayor of the Chandigarh Municipal Corporation had been seriously impaired.

 

On behalf of the Presiding Officer, it was urged that the entire process of the election was not only video recorded but both the contesting candidates and their representatives were present in the assembly hall where the counting took place. It was submitted that apart from initialing the ballot papers, the Presiding Officer placed certain marks in the bottom half of the eight ballots which were treated as invalid based on his assessment that these ballots had already been defaced.

 

Referring to the Chandigarh Municipal Corporation (Procedure and Conduct of Business) Regulations 1996 which govern the elections to the post of Mayor, the 3-Judge Bench of Chief Justice D.Y. Chandrachud, Justice J. B. Pardiwala and Justice Manoj Misra clarified that Regulation 6(10) stipulates when the ballot paper would be treated as invalid and provides for three eventualities. The first is where a member votes for more candidates than one. The second eventuality is where the member places any mark on the paper by which he may be identified. The third eventuality is if the mark indicating the vote is placed on the ballot paper in such a manner as to make it doubtful for which candidate the vote has been cast. Regulation 6(11) provides that as soon as the period fixed for casting of the votes is over, the presiding authority shall open the ballot box and initial each ballot paper.

 

The Bench took note of the fact that the Presiding Officer had signed each of the ballot papers. However, the video footage indicated that he had also placed certain marks on some of the ballot papers. This was corroborated when the Presiding authority/seventh respondent, who was present before this Court, stated that besides signing the ballot papers, he had placed his mark on eight ballot papers during the counting of the votes. He stated that he did so as he found that the ballot papers were defaced and sought to highlight them.

 

The Bench was of the opinion that in the eight ballots, the vote had been duly cast in favour of the appellant. Further, the Presiding Officer had evidently put his own mark on the bottom half of the ballots to create a ground for treating the ballot to have been invalidly cast. “In doing so, the Presiding Officer has clearly acted beyond the terms of his remit under the statutory regulations. These regulations have been framed by the Municipal Corporation in exercise of powers conferred by Section 65 of the Act as extended to the Union Territory of Chandigarh”, it added.

 

Noting that none of the eventualities of Regulation 6(10) were fulfilled in this case, the Bench observed that the ballots had not been defaced when the Presiding Officer put his mark at the bottom. The ballots left no manner of doubt about the candidate for whom the ballot was cast. However, it was evident that the Presiding Officer was guilty of a serious misdemeanour in doing what he did in his role and capacity as Presiding Officer.

 

“It is evident that the Presiding Officer in the present case has made a deliberate effort to deface the eight ballots which were cast in favour of the appellant so as to secure a result at the election by which the eighth respondent would be declared as the elected candidate”, the Bench said while further adding, “The conduct of the Presiding Officer must be deprecated at two levels. Firstly, by his conduct, he has unlawfully altered the course of the Mayor’s election. Secondly, in making a solemn statement before this Court on 19 February 2024, the Presiding Officer has expressed a patent falsehood, despite a prior warning, for which he must be held accountable.”

 

After a perusal of the result sheet, the Bench held that while the appellant was reflected to have polled twelve votes, eight votes cast in favour of the appellant were treated as invalid. Each of those eight invalid votes was in fact validly cast in favour of the appellant. Adding the eight invalid votes to the twelve votes which the Presiding Officer recorded to have been polled by the appellant would make his tally twenty votes. The eighth respondent had polled sixteen votes.

 

Thus, the Bench ordered, “For the above reasons, we have come to the conclusion that the result, which was declared by Shri Anil Masih, the Presiding Officer is plainly contrary to law and would have to be set aside.” It was further directed by the Top Court that the result of the election as declared by the Presiding Officer be quashed and the appellant, Kuldeep Kumar, be declared as  the validly elected candidate for election as Mayor of the Chandigarh Municipal Corporation.

 

The Apex Court also directed the Registrar (Judicial) to issue a notice to show cause to Shri Anil Masih of the Chandigarh Municipal Corporation who was the Presiding Officer of the election, as to why steps should not be initiated against him under Section 340 of the Code of Criminal Procedure 1973. The Bench concluded the matter by saying, “In order to maintain the purity of the electoral process, the little cross on the little bit of paper must be made only by the metaphorical little man walking into the little booth and no one else.”