Wednesday, 28 January 2015

Dishonour of Cheques : Whether a Power of Attorney holder can sign and file a complaint?

A.C. Narayanan Vs. State of Maharashtra (Supreme Court of India, January 28, 2015)
Contents
  1. Section 482 of the Code of Criminal Procedure, 1973 
    1. 2.1 M.M.T.C. Ltd. and Anr. vs. Medchl Chemicals and Pharma(P) Ltd. and Anr., (2002) 1 SCC 234 
    2. 2.3 Janki Vashdeo Bhojwani and Anr. vs. Indusind Bank Ltd. and Ors. , 2005(2)SCC 217
    3. 2.4 Shambhu Dutt Shastri vs. State of Rajasthan [1986 2 WLN 713 (Raj.)] 
    4. 2.5 Humberto Luis v. Gloriano Armado Luis [(2002) 2 Bom. CR 754) 
    5. 2.6 Mamtadevi Prafullakumar Bhansali vs. Pushpadevi Kailashkumar Agrawal & Anr. [2005 (2) Mah. L.J. 1003) 
    6. 2.7 S.P. Sampathy vs. Manju Gupta and Anr. (2002) Crl.L.J. 2621)
      1. 2.8.1 (i) Whether a Power of Attorney holder can sign and file a complaint petition behalf of the complainant? Whether the eligibility criteria prescribed by Section 142(a) of NI Act would stand satisfied if the complaint petition itself is filed in the name of the payee or the holder in due course of the cheque? 
      2. 2.8.2 (ii) Whether a Power of Attorney holder can be varied on oath under Section 200 of the Code? 
      3. 2.8.3 (iii) Whether specific averments as to the knowledge of the Power of Attorney holder in the impugned transaction must be explicitly asserted in the complaint? 
      4. 2.8.4 (iv) If the Power of Attorney holder fails to assert explicitly his knowledge in the complaint then can the Power of Attorney holder verify the complaint on oath on such presumption of knowledge? 
      5. 2.8.5 (v) Whether the proceedings contemplated under Section 200 of the Code can be dispensed with in the light of Section 145 of the N.I. Act which was introduced by an amendment in the year 2002? 
    1. 3.1 A.C. Narayanan vs. State of Maharashtra, 2013(11) Scale 360 
    2. 3.2 Ashwin Nanubhai Vyas vs. State of Maharashtra (1967) 1 SCR 807
      1. 3.3.1 “(i) Filing of complaint petition under Section 138 of N.I Act through power of attorney is perfectly legal and competent. 
      2. 3.3.2 (ii) The Power of Attorney holder can depose and verify on oath before the Court in order to prove the contents of the complaint. However, the power of attorney holder must have witnessed the transaction as an agent of the payee/holder in due course or possess due knowledge regarding the said transactions. 
      3. 3.3.3 (iii) It is required by the complainant to make specific assertion as to the knowledge of the power of attorney holder in the said transaction explicitly in the complaint and the power of attorney holder who has no knowledge regarding the transactions cannot be examined as a witness in the case. 
      4. 3.3.4 (iv) In the light of section 145 of N.I Act, it is open to the Magistrate to rely upon the verification in the form of affidavit filed by the complainant in support of the complaint under Section 138 of the N.I Act and the Magistrate is neither mandatorily obliged to call upon the complainant to remain present before the Court, nor to examine the complainant of his witness upon oath for taking the decision whether or not to issue process on the complaint under Section 138 of the N.I. Act. 
      5. 3.3.5 (v) The functions under the general power of attorney cannot be delegated to another person without specific clause permitting the same in the power of attorney. Nevertheless, the general power of attorney itself can be cancelled and be given to another person.” 
  2. Case of A.C. Narayanan 
    1. 5.1 21. The appeals are allowed accordingly.
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Sunday, 25 January 2015

Family Court : Parties have to file a detailed affidavit of their assets, income and expenditure says Delhi HC

Kusum Sharma Vs. Mahinder Kumar Sharma 

(Delhi High Court, 14-01-2015)
CONTENTS
      1. 1.1.1 the Supreme Court held that any delay in adjudication of maintenance cases by the Family Court is not only against human rights but also against the basic embodiment of dignity of an individual. The object of the provisions for grant of maintenance is to provide speedy remedy for supply of food, clothing and shelter to the deserted wife and to prevent vagrancy and destitution.
      2. 1.1.2 The concept of sustenance does not necessarily mean to lead the life of an animal, feel like an unperson to be thrown away from grace and roam for her basic maintenance somewhere else. She is entitled in law to lead a life in the similar manner as she would have lived in the house of her husband. That is where the status and strata come into play, and that is where the obligations of the husband, in case of a wife, become a prominent one. In a proceeding of this nature, the husband cannot take subterfuges to deprive her of the benefit of living with dignity. 
      3. 1.1.3 Section 125 of the Code is meant to achieve a social purpose. The object is to prevent vagrancy and destitution. It provides a speedy remedy for the supply of food, clothing and shelter to the deserted wife.
      4. 1.1.4 The Family Judge is expected to be sensitive to the issues, for he is dealing with extremely delicate and sensitive issues pertaining to the marriage and issues ancillary thereto. When we say this, we do not mean that the Family Courts should show undue haste or impatience, but there is a distinction between impatience and to be wisely anxious and conscious about dealing with a situation. A Family Court Judge should remember that the procrastination is the greatest assassin of the lis before it. It not only gives rise to more family problems but also gradually builds unthinkable and Everestine bitterness. It leads to the cold refrigeration of the hidden feelings, if still left. The delineation of the lis by the Family Judge must reveal the awareness and balance. Dilatory tactics by any of the parties has to be sternly dealt with, for the Family Court Judge has to be alive to the fact that the lis before him pertains to emotional fragmentation and delay can feed it to grow. We hope and trust that the Family Court Judges shall remain alert to this and decide the matters as expeditiously as possible keeping in view the objects and reasons of the Act and the scheme of various provisions pertaining to grant of maintenance, divorce, custody of child, property disputes, etc.
      1. 2.1.1 this Court observed that parties rarely disclose their true income and therefore, the Court have to resort to the status and life style of the parties for fixing the maintenance. 
      2. 2.1.2 “3. Cases where the parties disclose their actual income are extremely rare. Experience, therefore, dictates that where a decision has to be taken pertaining to the claim for maintenance, and the ”quantum to be granted, the safer and surer method to be employed for coming to a realistic conclusion is to look at the status of the parties, since whilst incomes can be concealed, the status is palpably evident to all concerned. If any opulent lifestyle is enjoyed by warring spouses he should not be heard to complaint or plead that he has only a meagre income.
    1. 3.1 “Section 106 - Burden of proving fact especially within knowledge –
    1. 4.1 “Section 10 - Procedure generally
      1. 5.1.1 “8. …Truth, like song, is whole, and half-truth can be noise! Justice is truth, is beauty and the strategy of healing injustice is discovery of the whole truth and harmonising human relations. Law's finest hour is not in meditating on abstractions but in being the delivery agent of full fairness. 
    1. 5.2 Union Carbide Corporation v. Union of India, (1989) 3 SCC 38
    2. 5.3 Mohanlal Shamji Soni v. Union of India, 1991 Supp (1) SCC 271
      1. 5.4.1 People would have faith in Courts when they would find that truth alone triumphs in Courts.
      1. 5.5.1 discovery, vindication and establishment of truth are the main purposes underlying existence of Courts of justice.
      1. 5.6.1 Truth, like all other good things, may be loved unwisely—may be pursued too keenly—may cost too much.
      1. 5.7.1 the truth should be the guiding star in the entire legal process and it is the duty of the Judge to discover truth to do complete justice. 
      2. 5.7.2 Judge has to play an active role to discover the truth and he should explore all avenues open to him in order to discover the truth. 
      3. 5.7.3 33. The truth should be the guiding star in the entire judicial process.Truth alone has to be the foundation of justice. The entire judicial system has been created only to discern and find out the real truth. Judges at all levels have to seriously engage themselves in the journey of discovering the truth. 
      4. 5.7.4 52. Truth is the foundation of justice. It must be the endeavour of all the judicial officers and judges to ascertain truth in every matter and no stone should be left unturned in achieving this object. Courts must give greater emphasis on the veracity of pleadings and documents in order to ascertain the truth.”
      1. 6.1.1 2. In last 40 years, a new creed of litigants has cropped up. Those who belong to this creed do not have any respect for truth. They shamelessly resort to falsehood and unethical means for achieving their goals. In order to meet the challenge posed by this new creed of litigants, the courts have, from time to time, evolved new rules and it is now well established that a litigant, who attempts to pollute the stream of justice or who touches the pure fountain of justice with tainted hands, is not entitled to any relief, interim or final.”
      1. 6.2.1 In spite of caution, courts are continued to be flooded with litigation with false and incoherent pleas and tainted evidence led by the parties. The judicial system in the country is choked and such litigants are consuming courts‘ time for a wrong cause. Efforts are made by the parties to steal a march over their rivals by resorting to false and incoherent statements made before the Court. 
      1. 7.1.1 C. Imposition of actual, realistic or proper costs and or ordering prosecution would go a long way in controlling the tendency of introducing false pleadings and forged and fabricated documents by the litigants. Imposition of heavy costs would also control unnecessary adjournments by the parties. In appropriate cases the courts may consider ordering prosecution otherwise it may not be possible to maintain purity and sanctity of judicial proceedings…
      2. 7.1.2 54. While imposing costs we have to take into consideration pragmatic realities and be realistic what the Defendants or the Respondents had to actually incur in contesting the litigation before different courts. We have to also broadly take into consideration the prevalent fee structure of the lawyers and other miscellaneous expenses which have to be incurred towards drafting and filing of the counter affidavit, miscellaneous charges towards typing, photocopying, court fee etc.
      3. 7.1.3 55. The other factor which should not be forgotten while imposing costs is for how long the Defendants or Respondents were compelled to contest and defend the litigation in various courts. 
      4. 7.1.4 In appropriate cases, the Courts may consider ordering prosecution otherwise it may not be possible to maintain purity and sanctity of judicial proceedings.”
  1. 12. Judge’s Power to put questions or order production 
    1. 9.1 “Section 165. Judge’s power to put questions or order production.-
      1. 9.2.1 While conducting trial, the Court is not required to sit as a silent spectator or umpire but to take active part within the boundaries of law by putting questions to witnesses in order to elicit the truth 
      1. 9.3.1 every trial is a voyage of discovery in which truth is the quest. 
      2. 9.3.2 It is an extraordinary power conferred upon the Court to elicit the truth and to act in the interest of justice. 
      1. 9.4.1 Section 165 of the Indian Evidence Act confers vast and unrestricted powers on the Court to elicit truth. 
      2. 9.4.2 A Judge is expected to actively participate in the trial to elicit necessary materials from witnesses in the appropriate context which he feels necessary for reaching the correct conclusion.
  2. 10 Suggestions
    1. 11.1 Puneet Kaur v. Inderjit Singh Sawhney, 2011 (183) DLT 403
  3. 12 7.1 Personal Information
  4. 13 7.2 Income
  5. 14 7.3 Assets
  6. 15 7.4 Liabilities
  7. 16 7.5 Expenditure
  8. 17 7.6 General Information regarding Standard of Living and Lifestyle
  9. 18 17. Format of the affidavit of assets, income and expenditure.
  10. 19 18. International Best Practices
      1. 20.1.1 Conference.
    1. 21.1 (A) Required Filing. 
      1. 21.2.1 (1) Divorce, Legal Separation, Annulment: 
      2. 21.2.2 (2) Dissolutions of Marriage: 
      3. 21.2.3 (3) Domestic Violence: 
      4. 21.2.4 (4) Post Decree Motions: 
  11. 22 Conclusion
  12. 23 PERSONAL INFORMATION RELATING TO THE DEPONENT 
  13. 24 RELEVANT INFORMATION RELATING TO THE SPOUSE
    1. 25.1 Details of expenditure on education
    1. 26.1 In case of salaried persons:
    2. 26.2 In case of self-employed persons:
    3. 26.3 Income from Other Sources:
    4. 26.4 TOTAL INCOME
    1. 27.1 Housing
    2. 27.2 Household expenditure
    3. 27.3 Transport
    4. 27.4 Medical expenditure
    5. 27.5 Insurance
    6. 27.6 Entertainment and recreation
    7. 27.7 Holiday and vacations
    8. 27.8 Gifts
    9. 27.9 Pocket money/allowance
    10. 27.10 Legal/litigation expenses
    11. 27.11 Discharge of Liabilities
    12. 27.12 Miscellaneous
    13. 27.13 Other expenditure
  14. 28 TOTAL EXPENDITURE
    1. 29.1 Real Estate
    2. 29.2 Financial Assets:
    3. 29.3 Investments
    4. 29.4 Pensions and Registered Retirement Savings Plan
    5. 29.5 Corporate/Business Interests
    6. 29.6 Movable Assets
    7. 29.7 About disposal of properties
  15. 30 JOINT PROPERTIES OF THE PARTIES 
    1. 31.1 Secured debt(s)
    2. 31.2 Unsecured Debt(s)
    3. 31.3 Other
  16. 32 GENERAL INFORMATION RELATING TO THE STATUS, STANDARD OF LIVING AND LIFESTYLE
  17. 33 DOCUMENTS RELATING TO ASSETS, INCOME AND EXPENDITURE OF THE DEPONENT PART A
  18. 34 DOCUMENTS RELATING TO PERSONAL INFORMATION
    1. 35.1 In case of Salaried Persons
    2. 35.2 In case of self-employed persons
    3. 35.3 In case of Income from other sources:
  19. 36 DOCUMENTS RELATING TO EXPENDITURE
  20. 37 Declaration:
  21. 38 Verification:
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Rehabilitating victim is as important as punishing the accused : SC


The Supreme Court of India in Manohar Singh Vs. State of Rajasthan dated 16.01.2015 emphasised the need to compensate the victim which can now be taken to be integral to just sentencing. 


A bench comprised of Justice T.S. Thakur and Justice Adarsh Kumar Goel observed that "Order of sentence in a criminal case needs due application of mind. The Court has to give attention not only to the nature of crime, prescribed sentence, mitigating and aggravating circumstances to strike just balance in needs of society and fairness to the accused, but also to keep in mind the need to give justice to the victim of crime."

The Court stated that "in spite of legislative changes and decisions of this Court, this aspect at times escapes attention. Rehabilitating victim is as important as punishing the accused. Victim’s plight cannot be ignored even when a crime goes unpunished for want of adequate evidence.

Allowing the appeal the Court further held that;
Just compensation to the victim has to be fixed having regard to the medical and other expenses, pain and suffering, loss of earning and other relevant factors. While punishment to the accused is one aspect, determination of just compensation to the victim is the other. At times, evidence is not available in this regard. Some guess work in such a situation is inevitable. Compensation is payable under Section 357 and 357-A. While under section 357, financial capacity of the accused has to be kept in mind, Section 357-A under which compensation comes out of State funds, has to be invoked to make up the requirement of just compensation.
In the present case, in the absence of any evidence about the medical expenses, loss of earning etc. and the financial capacity of the accused, the Court viewed that the appellant needs to be paid a sum of Rs.50,000/- as compensation under Section 357(3) within two months by the surviving respondents. In default the surviving respondents will undergo rigorous imprisonment for three months. Since compensation is being directed to be paid, Court set aside the sentence of fine of Rs.5,000/-. Accordingly, the appeal is allowed in above terms.

Referred Case

  1. State of Gujarat and anr. vs. Hon’ble High Court of Gujarat, (1998) 7 SCC 392 
  2. Ankush Shivaji Gaikwad vs. State of Maharashtra, (2013) 6 SCC 770 
  3. Hari Singh v. Sukhbir Singh [(1988) 4 SCC 551 : 1998 SCC (Cri) 984] 
  4. Sarwan Singh v. State of Punjab [(1978) 4 SCC 111 : 1978 SCC (Cri) 549]
  5. Balraj v. State of U.P [(1994) 4 SCC 29 : 1994 SCC (Cri) 823]
  6. Baldev Singh v. State of Punjab [(1995) 6 SCC 593 : 1995 SCC (Cri) 1132]
  7. Dilip S. Dahanukar v. Kotak Mahindra Co. Ltd. [(2007) 6 SCC 528 : (2007) 3 SCC (Cri) 209] 
  8. Julius v. Lord Bishop of Oxford [(1880) 5 AC 214 : (1874-80) All ER Rep 43 (HL)] 
  9. State of A.P. v. Polamala Raju [(2000) 7 SCC 75 : 2000 SCC (Cri) 1284] 
  10. Maya Devi v. Raj Kumari Batra [(2010) 9 SCC 486 : (2010) 3 SCC (Civ) 842] 
  11. K.A. Abbas H.S.A. vs. Sabu Joseph and anr., (2010) 6 SCC 230 
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Thursday, 22 January 2015

Posting a comment on Facebook‬ Page of Traffic Police does not amount to an offence u/s. 353 and 506 ‪IPC‬ : Supreme Court


The Supreme Court of India in Manik Taneja & Anr. Vs. State of Karnatka & Anr. dated 20.01.2015 held that:
"as far as the comments posted on the Facebook are concerned, it appears that it is a public forum meant for helping the public and the act of appellants posting a comment on the Facebook may not attract ingredients of criminal intimidation in Section 503 IPC.

A bench of Justices V. Gopala Gowda and R. Banumathi) observed that: 
"a reading of the definition of “Criminal intimidation” would indicate that there must be an act of threatening to another person, of causing an injury to the person, reputation, or property of the person threatened, or to the person in whom the threatened person is interested and the threat must be with the intent to cause alarm to the person threatened or it must be to do any act which he is not legally bound to do or omit to do an act which he is legally entitled to do."
The appellants contended that posting of a comment on the Facebook page of the traffic police does not amount to an offence under Sections 353 and 506 IPC and the FIR was not sustainable in law. It was submitted that Facebook page of the Bengaluru traffic police itself is a public forum meant for citizens to discuss and post their grievances and therefore, the comment of the appellants posted on the Facebook would not prima facie constitute the offence and the High Court erred in not appreciating the matter in proper perspective.

The Respondents contended that by posting a comment on the Facebook of the traffic police, the appellants obstructed the public duty of the complainant and his staff by publicly making baseless allegations. It was submitted that such posting of derogatory comments on the Facebook page amounts to 'threatening' and ‘criminal intimidation’ within the meaning of Section 506 IPC affecting the complainant's reputation and integrity and the High Court rightly declined to quash the FIR and the impugned order warrants no interference.

Allowing the Appeal by setting aside the impugned order of the High Court and quashing the FIR registered against the appellants the Court further held that:

The legal position is well-settled that when a prosecution at the initial stage is asked to be quashed, the test to be applied by the Court is as to whether the uncontroverted allegations as made, prima facie, establish the offence. It is also for the Court to take into consideration any special features which appear in a particular case to consider whether it is expedient and in the interest of justice to permit the prosecution to continue. Where, in the opinion of the Court, the chances of ultimate conviction is bleak and no useful purpose is likely to be served by allowing a criminal prosecution to continue, the Court may quash the proceeding even though it may be at a preliminary stage.

In the instant case, the allegation is that the appellants have abused the complainant and obstructed the second respondent from discharging his public duties and spoiled the integrity of the second respondent. It is the intention of the accused that has to be considered in deciding as to whether what he has stated comes within the meaning of “Criminal intimidation”. 

The threat must be with intention to cause alarm to the complainant to cause that person to do or omit to do any work. Mere expression of any words without any intention to cause alarm would not be sufficient to bring in the application of this section. But material has to be placed on record to show that the intention is to cause alarm to the complainant. 

From the facts and circumstances of the case, it appears that there was no intention on the part of the appellants to cause alarm in the minds of the second respondent causing obstruction in discharge of his duty. As far as the comments posted on the Facebook are concerned, it appears that it is a public forum meant for helping the public and the act of appellants posting a comment on the Facebook may not attract ingredients of criminal intimidation in Section 503 IPC.

Of course, in exercise of its jurisdiction under Section 482 Cr.P.C., the court should be extremely cautious to interfere with the investigation or trial of a criminal case and should not stall the investigation, save except when it is convinced beyond any manner of doubt that the FIR does not disclose commission of offence and that continuance of the criminal prosecution would amount to abuse of process of the court. 

As noted earlier, the page created by the traffic police on the Facebook was a forum for the public to put forth their grievances. In our considered view, the appellants might have posted the comment online under the bona fide belief that it was within the permissible limits. As discussed earlier, even going by the uncontroverted allegations in the FIR, in our view, none of the ingredients of the alleged offences are satisfied. We are of the view that in the facts and circumstances of the case, it would be unjust to allow the process of the court to be continued against the appellants and consequently the order of the High Court is liable to be set aside.
The Court Said.
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CCTV Footage is the Best Evidence : SC


The Supreme Court of India in Tomaso Bruno & Anr. Vs. State of U.P. dated 20-01-2015 viewed that "omission to produce CCTV footage which is the best evidence, raises serious doubts about the prosecution case."

A full bench of Justices Anil R. Dave, Kurian Joseph and R. Banumathi held that "to invoke Section 106 of the Evidence Act, the main point to be established by the prosecution is that the accused persons were present in the hotel room at the relevant time. 

Hotel Manager stated that CCTV cameras are installed in the boundaries, near the reception, in the kitchen, in the restaurant and all three floors. Since CCTV cameras were installed in the prominent places, CCTV footage would have been best evidence to prove whether the accused remained inside the room and whether or not they have gone out. 

CCTV footage is a strong piece of evidence which would have indicated whether the accused remained inside the hotel and whether they were responsible for the commission of a crime. It would have also shown whether or not the accused had gone out of the hotel. 

CCTV footage being a crucial piece of evidence, it is for the prosecution to have produced the best evidence which is missing. Omission to produce CCTV footage, in our view, which is the best evidence, raises serious doubts about the prosecution case." Court added.

Allowing the appeal and setting aside the convictions of the accused under Section 302/34 IPC the Court further held that:

With the advancement of information technology, scientific temper in the individual and at the institutional level is to pervade the methods of investigation. With the increasing impact of technology in everyday life and as a result, the production of electronic evidence in cases has become relevant to establish the guilt of the accused or the liability of the defendant. 

Electronic documents strictu sensu are admitted as material evidence. With the amendment to the Indian Evidence Act in 2000, Sections 65A and 65B were introduced into Chapter V relating to documentary evidence. Section 65A provides that contents of electronic records may be admitted as evidence if the criteria provided in Section 65B is complied with. 

The computer generated electronic records in evidence are admissible at a trial if proved in the manner specified by Section 65B of the Evidence Act. Sub-section (1) of Section 65B makes admissible as a document, paper print out of electronic records stored in optical or magnetic media produced by a computer, subject to the fulfilment of the conditions specified in sub-section (2) of Section 65B. 

Secondary evidence of contents of document can also be led under Section 65 of the Evidence Act. PW-13 stated that he saw the full video recording of the fateful night in the CCTV camera, but he has not recorded the same in the case diary as nothing substantial to be adduced as evidence was present in it.

Production of scientific and electronic evidence in court as contemplated under Section 65B of the Evidence Act is of great help to the investigating agency and also to the prosecution. 

Relevance of electronic evidence 

The trial court in its judgment held that non-collection of CCTV footage, incomplete site plan, non-inclusion of all records and sim details of mobile phones seized from the accused are instances of faulty investigation and the same would not affect the prosecution case. Non-production of CCTV footage, noncollection of call records (details) and sim details of mobile phones seized from the accused cannot be said to be mere instances of faulty investigation but amount to withholding of best evidence. It is not the case of the prosecution that CCTV footage could not be lifted or a CD copy could not be made.

As per Section 114 (g) of the Evidence Act, if a party in possession of best evidence which will throw light in controversy withholds it, the court can draw an adverse inference against him notwithstanding that the onus of proving does not lie on him. The presumption under Section 114 (g) of the Evidence Act is only a permissible inference and not a necessary inference. 

Unlike presumption under Section 139 of Negotiable Instruments Act, where the court has no option but to draw statutory presumption under Section 114 of the Evidence Act. 

Under Section 114 of the Evidence Act, the Court has the option; the court may or may not raise presumption on the proof of certain facts. Drawing of presumption under Section 114 (g) of Evidence Act depends upon the nature of fact required to be proved and its importance in the controversy, the usual mode of proving it; the nature, quality and cogency of the evidence which has not been produced and its accessibility to the party concerned, all of which have to be taken into account. It is only when all these matters are duly considered that an adverse inference can be drawn against the party.

The High Court held that even though the appellants alleged that the footage of CCTV is being concealed by the prosecution for the reasons best known to the prosecution, the accused did not invoke Section 233 Cr.P.C. and they did not make any application for production of CCTV camera footage. 

The High Court further observed that the accused were not able to discredit the testimony of PW-1, PW-12 and PW-13 qua there being no relevant material in the CCTV camera footage. Notwithstanding the fact that the burden lies upon the accused to establish the defence plea of alibi in the facts and circumstances of the case, in our view, prosecution in possession of the best evidence–CCTV footage ought to have produced the same. 

In our considered view, it is a fit case to draw an adverse inference against the prosecution under Section 114 (g) of the Evidence Act that the prosecution withheld the same as it would be unfavourable to them had it been produced.

In the present case, the courts below have not properly appreciated the evidence and the gap in the chain of circumstances sought to be established by the prosecution. The courts below have ignored the importance of best evidence i.e. CCTV camera in the instant case and also have not noticed the absence of symptoms of strangulation in the medical reports. 

Upon consideration of the facts and circumstances of the case, we are of the view that the circumstances and the evidence adduced by the prosecution do not form a complete chain pointing to the guilt of the accused and the benefit of doubt is to be given to the accused and the conviction of the appellants is liable to be set aside", the Court Said.
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BCCI is not State but amenable to writ jurisdiction as it discharges “Public Functions”.

Amendment to Rule 6.2.4 whereby the words ‘excluding events like IPL or Champions League Twenty 20’, were added to the said rule is declared void and ineffective. 
The quantum of punishment to be imposed on Mr. Gurunath Meiyappan and Mr. Raj Kundra as also their respective franchisees/teams/owners of the teams shall be determined by a Committee comprising the following: i) Hon’ble Mr. Justice R.M. Lodha, former Chief Justice of India – Chairman. ii) Hon’ble Mr. Justice Ashok Bhan, former Judge, Supreme Court of India – Member. iii) Hon’ble Mr. Justice R.V. Raveendran, former Judge, Supreme Court of India – Member.
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Wednesday, 21 January 2015

It is inconceivable in law that the cross-examination should be deferred for a long time : SC


The Supreme Court of India in Vinod Kumar Vs. State of Punjab dated 21.01.2015 reiterate that "it is inconceivable in law that the cross-examination should be deferred for such a long time."

If one is asked a question, what afflicts the legally requisite criminal trial in its conceptual eventuality in this country the two reasons that may earn the status of phenomenal signification are, first, procrastination of trial due to non-availability of witnesses when the trial is in progress and second, unwarranted adjournments sought by the counsel conducting the trial and the unfathomable reasons for acceptation of such prayers for adjournments by the trial courts, despite a statutory command under Section 309 of the Code of Criminal Procedure, 1973 (CrPC) and series of pronouncements by this Court. What was a malady at one time, with the efflux of time, has metamorphosed into malignancy. What was a mere disturbance once has become a disorder, a diseased one, at present 
the Court said.

A bench of Justices Dipak Misra and Rohinton Fali Nariman expressed the Courts agony and anguish the manner in which trials in respect of serious offences relating to corruption are being conducted by the trial courts. 

Dismissing the Appeal and cancelling the bail bond of the Appellant / Accused the Court held that:

Adjournments are sought on the drop of a hat by the counsel, even though the witness is present in court, contrary to all principles of holding a trial. That apart, after the examination-in-chief of a witness is over, adjournment is sought for cross-examination and the disquieting feature is that the trial courts grant time. 

The law requires special reasons to be recorded for grant of time but the same is not taken note of. As has been noticed earlier, in the instant case the cross-examination has taken place after a year and 8 months allowing ample time to pressurize the witness and to gain over him by adopting all kinds of tactics. 

There is no cavil over the proposition that there has to be a fair and proper trial but the duty of the court while conducting the trial to be guided by the mandate of the law, the conceptual fairness and above all bearing in mind its sacrosanct duty to arrive at the truth on the basis of the material brought on record. 

If an accused for his benefit takes the trial on the path of total mockery, it cannot be countenanced. The Court has a sacred duty to see that the trial is conducted as per law. If adjournments are granted in this manner it would tantamount to violation of rule of law and eventually turn such trials to a farce. It is legally impermissible and jurisprudentially abominable. 

The trial courts are expected in law to follow the command of the procedure relating to trial and not yield to the request of the counsel to grant adjournment for non-acceptable reasons. In fact, it is not all appreciable to call a witness for crossexamination after such a long span of time. It is imperative if the examination-in-chief is over, the crossexamination should be completed on the same day. If the examination of a witness continues till late hours the trial can be adjourned to the next day for crossexamination. 

It is inconceivable in law that the crossexamination should be deferred for such a long time. It is anathema to the concept of proper and fair trial. The duty of the court is to see that not only the interest of the accused as per law is protected but also the societal and collective interest is safe-guarded. It is distressing to note that despite series of judgments of this Court, the habit of granting adjournment, really an ailment, continues. 
How long shall we say, “Awake! Arise!”. There is a constant discomfort. Therefore, we think it appropriate that the copies of the judgment be sent to the learned Chief Justices of all the High Courts for circulating the same among the learned trial Judges with a command to follow the principles relating to trial in a requisite manner and not to defer the cross-examination of a witness at their pleasure or at the leisure of the defence counsel, for it eventually makes the trial an apology for trial and compels the whole society to suffer chicanery. Let it be remembered that law cannot allowed to be lonely; a destitute.
the Court added. 

In the ultimate analysis, the Court perceive no merit in the appeal and consequently the same stands dismissed. As the appellant is on bail, his bail bonds are cancelled. He be taken into custody forthwith to suffer the sentence.

Referred Cases

  1. Gurnaib Singh V. State of Punjab, (2013) 7 SCC 108
  2. Talab Haji Hussain v. Madhukar Purshottam Mondkar, AIR 1958 SC 376
  3. Swaran Singh V. State of Punjab, (2000) 5 SCC 668 
  4. State of U.P. V. Shambu Nath Singh, (2001) 5 SCC 667 
  5. Raghubir Singh V. State of Haryana, (1974) 4 SCC 560
  6. Madhukar Bhaskarrao Joshi V. State of Maharashtra, (2000) 8 SCC 571
  7. B. Jayaraj V. State of Andhra Pradesh, (2014) 4 SCALE 81
  8. M.R. Purushotham Vs. State of Karnataka, (2014) 11 SCALE 467
  9. Sat Paul V. Delhi Administration, (1976) 1 SCC 727
  10. State of Bihar V. Basawan Singh (CB), (1959) SCR 195 
  11. Major E.G. Barsey V. State of Bombay, (1962) 2 SCR 195 
  12. Bhanupratap Hariprasad Dave V. State of Gujarat, (1969) 1 SCR 22
  13. MO Shamshuddin V. State of Kerala, (1995) 3 SCC 351 
  14. C.M. Girish Babu V. C.B.I., Cochin, (2009) 3 SCC 779
  15. Benarsi Das V. State of Haryana, (2010) 4 SCC 450
  16. Shiv Bahadur Singh V. State of Vindhya Pradesh, AIR 1954 SC 322 
  17. DPP V. Hester, (1972) 3 All ER 1056
  18. DPP V. Kilbourne, (1973) 1 All ER 440 
  19. Bhagwan Singh V. State of Rajasthan, (1976) 1 SCC 15 
  20. Megha Singh V. State of Haryana, (1996) 11 SCC 709 
  21. State vs. V. Jayapaul, (2004) 5 SCC 223
  22. State of U.P. V. Bhagwant Kishore Joshi, AIR 1964 SC 221 
  23. S.Jeevanatham V. State (through Inspector of Police, T.N.), (2004) 5 SCC 230 
  24. Bhagwan Singh V.State of Haryana, (1976) 1 SCC 389 
  25. Khuji @ Surendra Tiwari V. State of Madhya Pradesh, (1991) 3 SCC 627 
  26. Rabindra Kumar Dey V. State of Orissa, (1976) 4 SCC 233
  27. Syad Akbar V. State of Karnataka, (1980) 1 SCC 30 
  28. Rammi @ Rameshwar V. State of Madhya Pradesh, (1999) 8 SCC 649
  29. Hazari Lal v. State (Delhi Administration), (1980) 2 SCC 390
  30. Sita Ram v. State of Rajasthan, (1975) 2 SCC 227
  31. Suraj Mal v. State (Delhi Admn.), (1979) 4 SCC 725 
  32. M. Narsinga Rao v. State of A.P., (2001) 1 SCC 691 
  33. Suraj Mal v. State (Delhi Admn.), (1979) 4 SCC 725
  34. Hawkins v. Powells Tillery Steam Coal Co. Ltd., (1911) 1 KB 988 : 1911 WN 53
  35. Suresh Budharmal Kalani v. State of Maharashtra, (1998) 7 SCC 337
  36. C.M. Sharma v. State of A.P., (2010) 15 SCC 1 
  37. C.M. Girish Babu v. C.B.I., (2009) 3 SCC 779
  38. M.R. Purushotham v. State of Karnataka, 2014 (11) SCALE 467
  39. T.Subramanian v. The State of Tamil Nadu, AIR 2006 SC 836 
  40. Madhukar Bhaskarrao Joshi v. State of Maharashtra, (2000) 8 SCC 571 
  41. Raj Rajendra Singh Seth v. State of Jharkhand and Anr., AIR 2008 SC 3217 
  42. State of Maharashtra v. Dnyaneshwar Laxman Rao Wankhede, (2009) 15 SCC 200 
  43. C.M. Girish Babu v. C.B.I., Cochin, AIR 2009 SC 2011 
  44. K. S. Panduranga v. State of Karnataka, (2012) 3 SCC 721 
  45. Satvir Singh v. State of Delhi, (2014) 13 SCC 143 
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