Supreme Court

Vasant Rao Guhe Vs. State of Madhya Pradesh

MANU/SC/0961/2017

09.08.2017

Criminal

Public servant facing charge of criminal misconduct is not liable to furnish any explanation in absence of proof of the allegation

Appellant seeks to overturn judgment rendered by High Court thereby affirming his conviction passed by Trial Court under Section 13(1)(e) read with Section 13(2) of Prevention of Corruption Act, 1988 and sentence to undergo R.I. for two years with fine of Rs. 20,000/-. Appellant has insistently impeached his conviction and sentence contending that, prosecution had utterly failed to adhere to and prove the charge levelled against him and thus, impugned judgments are liable to be set aside.

Appellant was subjected to a trial involving fleeting frames of accusations of which, he was denied prior notice. This is clearly opposed to the fundamental precepts of a criminal prosecution. A person cannot be subjected to a criminal prosecution either for a charge which is amorphous and transitory and further on evidence that is conjectural or hypothetical. Appellant has been subjected to a trial in which both charges and evidence on aspects with vital bearing thereon lacked certitude, precision and un-ambiguity.

As per Section 13(1)(e) of the Act, a public servant charged of criminal misconduct thereunder has to be proved by prosecution to be in possession of pecuniary resources or property disproportionate to his known sources of income, at any time during the period of his office. Such possession of pecuniary resources or property disproportionate to his known sources of income may be of his or anyone on his behalf as case may be. Further, he would be held to be guilty of such offence of criminal misconduct, if he cannot satisfactorily account such disproportionate pecuniary resources or property. The explanation to Section 13(1)(e) of Act elucidates the words "known sources of income" to mean income received from any lawful source and that such receipt has been intimated in accordance with the provisions of law, rules, orders for the time being applicable to a public servant.

From the design and purport of Clause (e) of Sub-clause (1) to Section 13, it is apparent that, primary burden to bring home the charge of criminal misconduct thereunder would be indubitably on prosecution to establish beyond reasonable doubt that, public servant either himself or through anyone else had at any time during the period of his office been in possession of pecuniary resources or property disproportionate to his known sources of income and it is only on the discharge of such burden by the prosecution, if he fails to satisfactorily account for the same, he would be in law held guilty of such offence. A public servant facing such charge, cannot be comprehended to furnish any explanation in absence of the proof of the allegation of being in possession by himself or through someone else, pecuniary resources or property disproportionate to his known sources of income. As has been held by this Court amongst others in State of Maharashtra v. Dnyaneshwar Laxman Rao Wankhede, even in a case, when the burden is on accused, prosecution must first prove the foundational facts.

Prosecution failed to prove beyond all reasonable doubt the charge of criminal misconduct under Section 13(1)(e) of Act and punishable under Section 13(2) of Act thereof against Appellant. He is thus, entitled to benefit of doubt. Prosecution to succeed in a criminal trial has to pitch its case beyond all reasonable doubt and lodge it in the realm of "must be true" category and not leaving it in the domain of "may be true". Conviction and sentence, thus is set aside and appeal is allowed.

Relevant

State of Maharashtra v. Dnyaneshwar Laxman Rao Wankhede MANU/SC/1339/2009
: (2009) 15 SCC 200

Tags : Conviction Legality Proof Burden

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High Court of Bombay

State of Goa Vs. Metzi Cardozo and Ors.

MANU/MH/1717/2017

07.08.2017

Criminal

It is not necessary to go into the merits of the case at the stage of framing the charge

By present revision, under Section 397 of Code of Criminal Procedure, 1973, Petitioner/State of Goa has challenged the legality of impugned order of discharge passed by Special Judge, discharging Respondents of the offence punishable under Section 3(1)(x) of Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, 1989 and Sections 504 and 506(ii) read with Section 34 of Indian Penal Code, 1860 (IPC).

Section 3(1)(x) of Act, contemplates that, there shall be intentional insults or intimidation with intent to humiliate a member of a Scheduled Caste or a Scheduled Tribe in any place within public view. Prima facie, it is apparent from recitals of complaint and statement of witnesses that, complainant was abused within a public view by Respondent No. 1 who does not belong to Scheduled Caste. Ingredients of Section 3(1) (x) of Act have been precisely attracted.

It is well settled principle of law that, it would be essential to see as to whether prima facie ingredients of Section 3(1) (x) of the Act are attracted. At the stage of framing charge, what is required to be seen is that, whether there is sufficient material on record in the form of evidence which is such if not rebutted would warrant conviction of accused. At stage of framing charge, evidence cannot be gone into meticulously which has been precisely done by the learned Special Judge in the impugned order. All what is required at the stage of framing charge is whether prima facie case is made out and it is not necessary to go into merits of the case. It is not necessary to give reasons while framing the charge. It is immaterial whether a case is based on direct or circumstantial evidence.

Only because there is delay in lodging complaint would not ipso facto mean that, complaint is altogether false especially for reason that, complainant and his wife has specifically clarified in complaint that, they have been insulted and humiliated by Respondents in the past.

There is no sufficient material in so far as Respondent Nos. 2 and 3 are concerned as regards to insulting the complainant on the ground of his caste except saying the words "Ghanti" in the complaint. There is nothing on record to show that Respondent Nos. 2 and 3 extended threats to the complainant. Thus, impugned order discharging the Respondent Nos. 2 and 3 is confirmed.

Thus, record disclosed the fact that, complainant was insulted on his caste within a public view by Respondent No. 1 by calling him "Ghanti, bhongi chamar and mhar" any by threatening him with dire consequences. In the light of observations made herein above, petition is partly allowed. Learned Sessions Judge, is directed to frame a charge against Respondent No. 1.

Tags : Insult Caste Discharge Legality

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High Court of Delhi

Roop Kishore Vs. State

MANU/DE/2236/2017

04.08.2017

Criminal

Testimony of an injured accused and his deposition has to be relied upon

In the facts of present case, Appellant has been charged under Section 307/34 of Indian Penal Code, 1860 (IPC) for causing gunshot injury to PW-2 by a country made pistol, which hit him in his stomach and for assaulting PW-3 who had come to the rescue of (PW-2), for the offence under Section 323/34 of IPC. For criminally intimidating PW-2, Appellant was also charged under Section 506 of IPC. His statement under Section 313 of the Code of Criminal Procedure, 1973, Appellant has denied his participation in occurrence. Trial Court convicted Appellant for offences

Where a witness to the occurrence is himself an injured, testimony of such a witness is generally considered to be very reliable. There is an in-built guarantee of his presence at scene of crime and it is highly unlikely for him to spare his assailants in order to falsely implicate someone else. Very convincing evidence is required to discredit such injured witnesses. It is well settled that, a special evidentiary status is accorded to the testimony of an injured accused and his deposition has to be relied upon in the absence of any special ground for rejecting the same. His testimony would lend finality to supposition that he was present at the time of the occurrence.

The MLC of PW-2 which was prepared at hospital reveals that, condition of PW-2 was not good and he was semi conscious. Apart from the gun shot injury in his stomach, there were lacerated wounds on his scalp and near the ears. In that view of the matter, it cannot be expected that PW-2 was fit for making statement. The statement regarding the manner, time and nature of assault is consistent so far as the deposition of P.Ws. 2 & 3 are concerned.

There is no reason to disbelieve the statement of PW-3 or of PW-2 during the trial. The inconsistencies which have crept in the statements of some of the witnesses are too insignificant to take notice of. Merely because blood stained earth was not taken from the spot would not render the other clinching evidence nugatory.

There is no necessity of examination of any other independent witness, when two witnesses to the occurrence have clearly deposed against Appellant. Thus, conviction of Appellant under Section 307/34 and 506 of IPC is justified. There is no reason for this Court to interfere with judgment and order of conviction and sentence. Sentence imposed upon Appellant also appears to be reasonable and does not call for any interference.

Tags : Conviction Legality Evidence Credibility

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Supreme Court

Sanjay Khanderao Wadane Vs. State of Maharashtra

MANU/SC/0935/2017

03.08.2017

Criminal

When evidence of eye witnesses is credible and trustworthy, medical opinion pointing to alternative possibilities cannot be accepted as conclusive

Appeals have been filed against common judgment passed by the High Court, whereby order of conviction and sentence passed by trial Court, for offences punishable under Sections 143, 147, 148, 302 read with Section 149 and Section 326 read with Section 149 of Indian Penal Code, 1860 have been confirmed. In facts of case, wife of the deceased filed a complaint with regard to alleged crime, which got registered against the Accused persons. After investigation, the charges were framed and case was committed to Court of Sessions. It was case of the prosecution that, on fateful evening of 31st January, 2008, deceased was beaten to death by Appellants and others who were 12 (twelve) in numbers and armed with swords and iron pipes, owing to a long standing dispute between deceased and Accused persons.

The post mortem conducted by PW-10 made it clear that, death is caused by means of a sharp edged weapon and that too possibly by means of sword. Evidence given by PW-10 fully corroborates with the version given by PW-5 and PW-8 that, Appellants caused the death of deceased using swords and iron pipes. It has been specifically mentioned in report that, injuries could be possible by various blows of weapons. Further, death was caused due to cardio respiratory arrest due to hemorrhage as well as neurogenic shock due to very extensive lacerated wound over face including brain along with multiple bone fractures on face. The evidence of a medical person is merely an opinion which lends corroboration to the direct evidence in the case. It has been observed in various cases of this Court that, where the eye witnesses' account is found credible and trustworthy, medical opinion pointing to alternative possibilities is not accepted as conclusive.

The presence or absence of food at the time of post-mortem in relation to the time of death is based on various factors and circumstances such as type and nature of food consumed, time of taking the meal, age of the person concerned and power and capacity of the person to digest the food. In present case, though PW-8 has stated that, he had 'Bhel' with deceased just before the incident, there is no evidence about the exact time, when the meals were taken or quantity of 'Bhel' consumed by the deceased. Judging the time of death from contents of stomach, may not always be the determinative test. It will require due corroboration from other evidence. If prosecution is able to prove its case beyond reasonable doubt and cumulatively, evidence of the prosecution, including time of death, is proved beyond reasonable doubt and same points towards the guilt of the accused, then it may not be appropriate for the Court to wholly reject the case of the prosecution and to determine the time of death with reference to the stomach contents of the deceased.

This Court in a catena of cases has stated the dictum that, medical opinion is admissible in evidence like all other types of evidence and there is no hard-and-fast Rule with regard to appreciation of medical evidence. It is not to be treated as sacrosanct in its absolute terms. Further, in Malay Kumar Ganguly v. Sukumar Mukherjee, it has been held by this Court that, the opinion could be admitted or denied. Whether such evidence could be admitted or how much weight should be given thereto, lies within domain of Court.

Evidence of PWs 5, 8 and 12 are found to be trustworthy and fully corroborated with each other on the point of alleged incident with regard to the involvement of the Appellants herein. Further, there evidence fully corroborates with the medical evidence given by the Doctor who conducted the post mortem of the deceased. Even the injuries sustained by PW-8 while rescuing the deceased from the clutches of the Accused persons have been examined and proved by Doctor (PW-11) who found them to be of grievous nature.

The prosecution has examined material witnesses, viz., PW-5, PW-8 and PW-12 who are eye-witnesses to the alleged incident. High Court was not right in discarding the testimony of PW-5 and PW-12 taking into consideration the role played by the Appellants herein. The presence of the above witnesses at place of occurrence is clearly established. Though there are certain discrepancies but those are so minor in nature that it cannot harm the case of the prosecution. Their evidence inspires confidence and is natural one which clearly shows that, the Accused persons formed an unlawful assembly along with others with a common object to murder the deceased which was done by causing injuries to his person using fatal weapons which fully corroborates with the oral evidence as well as the post mortem report of the Doctor (PW-10) who conducted the post mortem. There is no conflict between the oral evidence of the above witnesses and medical evidence of PW-10 as alleged by learned Counsel for Appellants, particularly, on the point of injuries caused to the deceased on face and head using swords and iron pipes. There is no infirmity in orders passed by the High Court with regard to conviction and sentence of Appellants-accused.

Relevant

Malay Kumar Ganguly v. Sukumar Mukherjee MANU/SC/1416/2009
: AIR 2010 SC 1162

Tags : Conviction Validity

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High Court of Calcutta

Bidyut Baran Halder Vs. The State of West Bengal and Ors.

MANU/WB/0554/2017

03.08.2017

Labour and Industrial

Adjustment or exercise of banker's lien can be made, only if, employee makes over pensionary benefits voluntarily to the bank

In present case, Petitioner seeks gratuity from his employer. Petitioner submitted that, the Petitioner was an employee of a bank. A disciplinary proceeding was initiated by the bank. The Petitioner was dismissed from service in such disciplinary proceeding. According to him, the petitioner is entitled to pension and gratuity. Petitioner submitted that, no proceedings were taken under Section 54(6) of the Payment of Gratuity Act, 1972. The gratuity receivable by the Petitioner cannot be attached. The bank has deliberately put it into frozen account so as to deny payment to the petitioner. Moreover, the bank is seeking to adjust such amount receivable which the bank is not entitled to.

Section 13 of Payment of Gratuity Act, 1972 protects a gratuity payable under Act of 1972 from attachment in execution of any decree or order of any civil, revenue or criminal Court. Section 4 of Act deals with payment of gratuity. Sub-section (6) thereof permits an employer to forfeit gratuity on grounds specified therein. The gratuity of an employee whose services have been terminated for any act of wilful omission or negligence causing any damage or loss to employer will forfeit the gratuity to the extent of the damage or loss so caused. The gratuity payable to an employee may be wholly or partially forfeited for the grounds as provided in sub-clause (i) and (ii) of clause (b) of Sub-section (6) of Section 4. An employer forfeits gratuity on the happening of events specified in Section 4(6) of the Act of 1972 and not otherwise. Except the forfeiture provided for in Section 4(6) of the Act of 1972, gratuity is payable and is immune from attachment. The gratuity receivable by the employee is, therefore, protected.

In the present case, although Petitioner was discharged from service, in a disciplinary proceeding, order of punishment was without any financial implication. The order of punishment does not impose a forfeiture of gratuity. An employee of the bank may have dual capacities while dealing with the bank. A person can be an employee of the bank as well as its borrower at the same time. There will therefore be two contracts: the contract of employment and the contract of loan. As an employee, it may be entitled to receive gratuity for the services rendered in terms of the contract of employment. As a borrower, under the contract of loan, employee concerned can or may execute documents authorising the bank to adjust the amounts receivable as pensionary and retirement benefits including gratuity with that of the loan amount. The present case concerns gratuity only.

An employee is entitled to gratuity unless it is forfeited in the manner and for the grounds provided for in Section 4(6) of the Act of 1972. The gratuity received under the Act of 1972 is immune from execution of an order of Court. Therefore, a bank cannot approach a Court for the purpose of attaching a gratuity received or receivable by an employee including its own employee for adjustment toward the loan amount. The documents executed by the employee permitting the bank to adjust the pensionary benefits will not allow the bank to obtain an order of attachment from the Court in view of Section 13 of the Act of 1972. The same set of documents, therefore, should not be read to mean that, it would permit the bank to adjust the loan amount with the pensionary benefits on its own. Such permission would initiate against the provisions of Section 23 of the Contract Act, 1872. Even if the borrower is an employee of the bank, then also the bank cannot adjust the pensionary benefits with the outstanding loan amount on its own. The bank has to physically make over the gratuity amount to the employee. Upon the employee receiving the benefits, the employee concerned may voluntarily pay the loan amount to the bank. There has to be an act of wilful volition by the employee concerned in making over the gratuity to the bank towards adjustment of the loan amount after receipt of the gratuity amount. Deposit of the pension amount in the bank account in the name of the employee and having the same adjusted towards the loan amount on the strength of documents executed by the employee will not suffice.

Essentially, the bank is seeking to obtain relief indirectly which it could not obtain directly. It could have raised the issue of adjustment or banker's lien before the competent authority. It did not do so. A banker's lien or a general lien is available only when a property belonging to the borrower comes into the custody of the bank in its usual course of business. Contract of employment between the bank and its employee gives rise to the earnings of employee. Such earnings are property of employee, which the bank, who pays or makes over the same to its employee. Moreover, by payment of amount in a bank account of employee, the employer cannot claim that, quantum of retiral benefits such as pension or gratuity paid to the employee, come into its possession and, therefore, can be adjusted or a banker's lien can be validly exercised thereon. Adjustment or exercise of banker's lien can be made, only if, the employee makes over the pensionary benefits voluntarily to the bank. In this case, the petitioner has not done so. Respondent No. 2 is directed to take immediate steps for the purpose of recovering the amount due to the Petitioner from the bank as a public demand, and make over the same to the petitioner forthwith, on realization.

Tags : Gratuity Entitlement Loan Adjustment

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Central Information Commission

Kirubananthan K. Vs. PIO, EPFO, Chennai

MANU/CI/0503/2017

02.08.2017

Right to Information

Employment status of a person sought under RTI Act, can be furnished to spouse for purpose of deciding maintenance

Appellant had filed RTI application in year 2016, seeking information regarding details of EPF Account No. & EPF Account statement of wife of Appellant from date of opening of account to bill date. CPIO, vide its reply informed Appellant that, required information could not be provided as details requested are of personal nature and disclosure of which has no relationship to any public activity or interest and it infringes privacy of individual concerned. Therefore, said information is exempted from disclosure as per Section 8(1)(e) & (J) of RTI Act, 2005. Being aggrieved with CPIO reply, Appellant filed First appeal and first appellate authority upheld the decision of CPIO. Being dissatisfied, Appellant has approached the Commission.

The fact of a person's employment as available in a public authority cannot be considered as private or personal information of another person. While savings bank account or salary account of another person could be his or her personal information, amount of salary of a public servant cannot be considered so. Salary information of public servant is one of listed information to be given under Section 4(1)(b) of RTI Act. Similarly, PF related information of public servant is not private information, because by a statute a share of contribution from employee and employer is credited in PF account and there will be no other credits or debits from that account.

Spouses inter se have right to maintenance especially, when living separately or under disputes. If one spouse has filed petition for maintenance, that has to be decided based on material information available about the incomes and investments of each spouse. Justice cannot be rendered without complete information. Right to maintenance, duty to maintain and right to seek the remedy of maintenance is recognized by law. In Kusum Verma v. Mahinder Kumar Veerma, Delhi High Court held that, all kinds of investments and incomes made by spouses shall be furnished in the form of affidavit in every maintenance petition, on their own.

Ministry of Labour & Employment, Government of India, has recently made few amendments in Employees' Provident Fund Scheme, 1952 (PF Scheme). These guidelines are mainly related to 'early withdrawals' from Provident Fund & provisions related to PF withdrawals. These latest EPF withdrawal Rules are effective from 10 February, 2016. As per new rule, full EPF withdrawal is not allowed up to retirement age. This change adversely impact individuals who frequently change job and withdraw the EPF amount. Rules also facilitated the continuity of EPF membership, Increase in Age limit to withdraw 90% of PF balance, Partial withdrawal of EPF amount on Resignation and Increase of retirement age. All this establish that, PF account of a salaried employee is for future and retirement security measure, which cannot be counted as present 'income' for the purposes of maintenance decision. However, fact whether spouse is employed could be relevant for the spouse. If the public authority holds any information, which can show that a spouse is an employee, that part of information could be shared under RTI Act.

Commission observes that, employment status of person can be furnished to spouse for purpose of deciding maintenance, if sought under RTI Act, because such information could be an essential component in deciding maintenance issues. If wife is a Petitioner for maintenance, she has a right to know salary details, similarly a husband can defend his interest seeking the salary details and employment status of wife. The Commission directs Respondent authority to provide employment status relating to Mrs. M. Nithya alone to the Appellant, within 15 days from this date.

Relevant

Kusum Verma v. Mahinder Kumar Veerma

Tags : Information Disclosure EPF Account

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