Supreme Court

Chand Devi Daga and Ors. Vs. Manju K. Humatani and Ors.

MANU/SC/1380/2017

03.11.2017

Criminal

Heirs of complainant can continue the prosecution

Instant appeal has been filed against the judgment of the High Court allowing an application filed by the legal representatives of Petitioner. Chandra Narayan Das whose legal representatives are the Respondent Nos. 1 to 7 had filed a complaint against the Appellants alleging offence under Sections 420, 467, 468, 471, 120B, 201 and 34 of Indian Penal Code, 1860 (IPC). The original complainant died during the pendency of the Criminal Miscellaneous Petition before the High Court. High Court permitted the legal representatives of Chandra Narayan Das to come on record for prosecuting the criminal miscellaneous petition.

Section 256 of Code of Criminal Procedure, 1973 (CrPC) is contained in Chapter XX with the heading "Trial of summons-cases by Magistrates". Analogous provision to Section 256 of CrPC was contained in Section 247 of CrPC, 1898. In Section 247, the proviso was added in 1955 saying that "where the Magistrate is of the opinion that personal attendance is not necessary, he may dispense with such attendance". The said proviso took out the rigour of the original Rule and whole thing was left to the discretion of the Court. Sub-section (1) of Section 256 of CrPC contains the above proviso in the similar manner. Thus, even in case of trial of summons-case it is not necessary or mandatory that after death of complainant the complaint is to be rejected, in exercise of the power under proviso to Section 256(1) of CrPC, the Magistrate can proceed with the complaint.

The present is a case where offence was alleged under Sections 420, 467, 468, 471, 120B and 201 read with 34 of IPC for which procedure for trial of summons-case was not applicable and there is no provision in Chapter XIX "Trial of warrant-cases by Magistrates" containing a provision that in the event of death of complainant the complaint is to be rejected. The Magistrate under Section 249 of CrPC has power to discharge a case where the complainant is absent. The discharge under Section 249, however, is hedged with condition "the offence may be lawfully compounded or is not a cognizable offence". Had the Code 1973 intended that in case of death of complainant in a warrant case the complaint is to be rejected, the provision would have indicated any such intention which is clearly absent.

In this context a reference is made to judgment of this Court in Ashwin Nanubhai Vyas v. State of Maharashtra. In the said case this Court had occasion to consider the provisions of Code of Criminal Procedure, 1898. It was held therein that the Magistrate had the power to permit a relative to act as the complainant to continue the prosecution. In Jimmy Jahangir Madan v. Bolly Cariyappa Hindley after referring to Ashwin case it was held that, heir of the complainant can be allowed to file a petition under Section 302 of the CrPC to continue the prosecution.

Two Judge Bench in Jimmy Jahangir Madan v. Bolly Caiyappa Hindley (dead) By L.Rs., referring to this Court's judgment in Ashwin Nanubhai Vyas had held that, heirs of complainant can continue the prosecution. High Court did not commit any error in allowing the legal heirs of the complainant to prosecute the Criminal Miscellaneous Petition before the High Court. The appeal is dismissed.

Relevant

Ashwin Nanubhai Vyas v. State of Maharashtra MANU/SC/0101/1966
: AIR 1967 SCC 983, Jimmy Jahangir Madan v. Bolly Caiyappa Hindley (dead) By L.Rs., MANU/SC/0946/2004
: (2004) 12 SCC 509

Tags : Complaint Prosecution Legal heirs

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Supreme Court

Senior Manager (P & D), Riico Ltd. Vs. The State of Rajasthan and Ors.

MANU/SC/1381/2017

03.11.2017

Criminal

Section 195(1)(b)(ii) of CrPC would be attracted only when offences enumerated therein committed with respect to document after it has been produced or given in evidence in a proceeding in any Court

Present appeal has been filed against judgment of High Court dismissing Petition which was filed by the Appellant questioning the judgment of Additional Sessions Judge dismissing the Criminal Revision Petition preferred by the Appellant. Instant appeal disclosed several stages of litigation arising out of First Information Report lodged by Appellant under Section 420 of Indian Penal Code, 1860 (IPC).

The Constitution Bench in Iqbal Singh Marwah and Anr. v. Meenakshi Marwah and Anr., had held that, Sachida Nand Singh case has been correctly decided and the view taken therein is the correct view. Section 195(1)(b)(ii) Code of Criminal Procedure, 1973 (CrPC) would be attracted only when the offences enumerated in the said provision have been committed with respect to a document after it has been produced or given in evidence in a proceeding in any Court.

Present is a case where letter dated 10th April, 1992 is claimed to be a forged letter not signed by Appellant. From the materials on record, it is clear that, said letter dated 10th April, 1992 was filed before the Court in Case No. 2/84. There is no case that, forgery was committed after letter was filed in the Court. Thus, provision under Section 195(1)(b)(ii) of CrPC was not attracted. A perusal of the Final Report which was submitted by Inspector, it is clear that the Inspector after conducting an investigation ultimately concluded that, in view of Section 195(1)(b)(ii) of CrPC, Police cannot investigate the matter. The Final Report is filed.

The Chief Judicial Magistrate in his order as well as the Revisional Court has considered the material on record and came to the conclusion that, no prima facie case is made out against the Accused that he has committed any forgery or played any fraud in forging the document. The Chief Judicial Magistrate has also referred to the Report. The Revisional Court also after considering all the submissions of Appellant have dismissed the Revision on merits.

The order of the Revisional Court was challenged before the High Court and High Court also came to conclusion that, no evidence is available on record to suggest that letter dated 10th April, 1992 was prepared by Respondent No. 2. The High Court held that, no illegality can be found in the order of Revisional Court. Although, the Final Report was submitted on the ground relying on Section 195(1)(b)(ii) Code of CrPC but before submitting the report, investigation was conducted by the Inspector, and the materials collected during the investigation were all referred to in the Final Report. Holding that the Section 195(1)(b)(ii) of CrPC is not attracted in the present case, the Revisional Court vide its judgment has directed the Court below to pass an order in accordance with law on the basis of evidence available. Hence, the Chief Judicial Magistrate looked into the material on record and concluded that, there is no sufficient material for taking cognizance against the accused. High Court also took the same view, in which there is no infirmity.

Relevant

Iqbal Singh Marwah and Anr. v. Meenakshi Marwah and Anr. MANU/SC/0197/2005
: (2005) 4 SCC 370, Sachida Nand Singh MANU/SC/0077/1998
: (1998) 2 SCC 493

Tags : Cognizance Provision Applicability

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Supreme Court

Maharashtra Forest Guards and Foresters Union Vs. The State of Maharashtra and Ors.

MANU/SC/1383/2017

03.11.2017

Service

Introducing an additional restriction of graduation for participation in examination without there being any quota reserved for graduates is discriminatory

The short question arising for consideration in this case is whether the restriction introduced on the basis of educational qualification for participating in a Limited Departmental Competitive Examination ("LDCE") violates Articles 14 and 16 of the Constitution of India. The educational qualification for appointment to the post of Forest Guard in the Forester, Forest Guard, Ranger-Surveyor, Surveyor, Head Clerk, Accountant and Clerk-cum-Typist (Recruitment) Rules, 1987 ("the Recruitment Rules") is Higher Secondary School Certificate ("HSSC"). It is a feeder category for promotion to the post of Forester. By the amendment introduced in the Recruitment Rules in 2013, 75 per cent of the posts in the category of Forester are to be filled up on the basis of seniority-cum-fitness (Rule 7(1)(a)). The remaining 25 per cent is to be filled up on the basis of the LDCE (Rule 7(1)(b)).

Two main conditions have been prescribed to participate in the competitive examination - (i) the candidate should have completed minimum five years of service as Forest Guard and (ii) the candidate should be a graduate. It is the contention of the Appellant that, as far as the first condition is concerned, the Department is well within its competence to prescribe eligibility of minimum experience for a Forest Guard to get promoted as Forester even on the basis of the competitive examination since the post of Forester requires experience in service and exposure in the field. However, introducing a further restriction on the basis of educational qualification to participate in the LDCE is discriminatory.

If the young graduates are otherwise intellectually sharp and educationally proficient, they would prove to be more meritorious in the competitive LDCE. As the Rules now stand, opportunity has to be thrown open to the youngsters who are non-graduates also in the seniority list but who have completed the required number of years of service and yet are otherwise alert, efficient and proficient. Denial of the same would certainly be violative of Articles 14 and 16 of the Constitution.

There is no quarrel with the well-settled proposition that, there can be a classification based on the educational qualification, if so warranted by the circumstances. But in the present case, based on the educational qualification, a class within a class has been created violating the guarantee of equality by restricting the participation in the LDCE only to graduates.

It was a case where the validity of the Rule which prescribed ratio of 3:2 for direct recruits and promotees-the former being degree holders and latter being diploma holders was challenged as violative of Articles 14 and 16 of the Constitution of India. It was held that, higher educational qualification has relevance in so far as holding of higher promotional post is concerned in view of the nature of function and duties attached to the post. Still further, this Court held that, prescribing a lesser quota for diploma holders does not suffer from such an infirmity as to make a diploma holder totally unfit for holding the post and hence, the ratio was not "inequitable so as to mock at the guarantee of equality".

The whole purpose of the LDCE is to encourage and facilitate the Forest Guards to get accelerated promotion on the basis of merit. Since, seniority is the criterion for promotion to three-fourth of the posts, one-fourth is given a chance to compete in a competitive examination. It is also to be noted that, there is no quota prescribed on the basis of higher educational qualification. The LDCE is meant for selection for promotion from the entire lot of Forest Guards irrespective of seniority but subject to minimum five years of service. In that situation, introducing an additional restriction of graduation for participation in the LDCE without there being any quota reserved for graduates will be discriminatory and violative of Articles 14 and 16 of the Constitution of India since it creates a class within a class. The merit of the 25 per cent cannot be prejudged by a sub-classification. It violates the equality and equal opportunity guarantees. The Forest Guards, irrespective of educational qualifications, having formed one class for the purpose of participation in the LDCE, a further classification between graduates and non-graduates for participating in the LDCE is unreasonable. It is a case of equals being treated unequally.

Rule 7(2) of the Recruitment Rules to the extent that it imposes the requirement of being a graduate is declared unconstitutional. However this judgment shall not affect the promotions already made. But for further promotions, the LDCE shall be held afresh granting opportunity to all eligible Forest Guards. The appeal is allowed.

Tags : Examination Participation Restriction

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High Court of Gujarat

Amit Vs. State of Gujarat and Ors.

MANU/GJ/1769/2017

02.11.2017

Criminal

If a person tried for criminal offence but ordinary criminal law will not be able to deal with situation, only then, preventive detention can be taken recourse to

Present petition was against the order of detention passed by Respondent in exercise of powers conferred under Section 3[2] of the Gujarat Prevention of Anti Social Activities Act, 1985 by detaining the detenue as a dangerous person as defined under Section 2[c] of the Act. Learned advocate for the detenue submits that, the order of detention impugned in present petition deserves to be quashed and set aside on the ground that, the registration of three offences by itself cannot bring the case of the detenue within the purview of definition of dangerous person under Section 2[c] of the Act. Illegal activity carried out as alleged, cannot have any nexus or bearing with the maintenance of the public order and at the most it can be said to be breach of law and order. Further, except statements of witnesses and registration of FIRs, no other relevant or cogent material is available on record connecting the alleged anti-social activities of the detenue with breach of the public order.

The subjective satisfaction arrived at by the detaining authority cannot be said to be legal, valid and in accordance with law as the offences alleged in the FIRs cannot have any bearing on the public order since the law of the land i.e. Indian Penal Code and other relevant penal laws are sufficient enough to take care of the situation and that the allegations as have been levelled against the detenue cannot be said to be germane for the purpose of bringing the detenue as a dangerous person within the meaning of section 2[c] of the Act and, unless and until the material is there to make out a case that the person concerned has become a threat and a menace to the society so as to disturb the whole tempo of the society and that the whole social apparatus is in peril disturbing public order at the instance of such person, it cannot be said that, the detenue is a dangerous person within the meaning of Section 2[c] of the Act. Except general statement, there is no material on record which shows that the detenue is acting in such a manner which is dangerous to the public order.

Registration of FIRs by itself cannot have any nexus with the breach of maintenance of public order and the authority can take recourse under the Indian Penal Code and no other relevant or cogent material exists for invoking powers under Section 3[2] of the Act.

In the present case, it seems that, Petitioner has been detained several times but at present, the detention order under challenge does not disclose all such facts so as to enable the petitioner to properly represent his case. Hence, there is no option but to consider that present order of detention is solely based upon three offences. Therefore, considering the settled legal position that, no person can be detained for three offences.

In view of facts and circumstances, it would be necessary to observe that, the competent authority is not precluded from disclosing all material facts while detaining the petitioner if so required for any offence that he might commit hereinafter. Though impugned order is quashed and set aside at present, it would not come in way of the competent authority for quoting such FIR and order of detention, thereby to treat Petitioner as a habitual offender in case of commission of offence repeatedly.

Neither the possibility of launching of a criminal proceedings nor pendency of any criminal proceedings is an absolute bar to an order of preventive detention. But, failure of the detaining authority to consider the possibility of either launching of or pendency of criminal proceedings may, in the circumstances of a case, lead to the conclusions that the detaining authority has not applied its mind to the vital question as to whether it was necessary to make an order of preventive detention. Since, there is an allegation that, the order of detention is issued in a mechanical manner without keeping in mind whether it was necessary to make such an order when an ordinary criminal proceedings could well serve the purpose. The detaining authority must satisfy the Court that, the question too was borne in mind before the order of detention was made.

The Court is justified in drawing the inference that there was no application of mind by detaining authority to the vital question of whether it was necessary to preventively detain the detenue. In the case of Rekha v. State of Tamil Nadu through Secretary to Government and another, it is observed by Apex Court that, if a person is liable to be tried, or is actually being tried for a criminal offence but the ordinary criminal law will not be able to deal with the situation, then and only then, preventive detention can be taken recourse to. However, since all such orders are quashed on technical grounds, the same shall not come in the way of the Detaining Authority to pass an appropriate order in future. The petition is allowed and order of detention is quashed.

Relevant

Rekha v. State of Tamil Nadu through Secretary to Government and another MANU/SC/0366/2011
: (2011)5 SCC 244

Tags : Illegal Activity Detention Validity

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High Court of Madras

A. Elangovan Vs. The Inspector of Police, Palaviduthi Police Station and Ors.

MANU/TN/3556/2017

02.11.2017

Contempt of Court

Disobedience of orders of Court in order to be a 'Civil Contempt' must be a willful one, a proof of sheer/mere disobedience is not enough

The Petitioner has preferred the instant Contempt Petition praying for passing of an order by this Court to punish the Respondents for the act of Contempt in not obeying the orders passed by this Court. Petitioner had made a Representation itself seeking permission and police protection and Respondents had not passed any orders on his Representation and kept it pending, killing the time. The pivotal stand of the Petitioner is that there is no necessity to conduct a peace committee meeting as there was no Law and Order problem, except a few raising their objections and in fact, the very same Temple festival was conducted at the instance of the orders of this Court.

It cannot be gainsaid that, the Contempt jurisdiction is conferred on the High Court not only to preserve or maintain the Majesty of Law by taking necessary action against persons, who violates the Court's order, but to see that the 'Court of Justice' is pure. Furthermore, even an 'Abuse of Process of Court' would amount to Contempt of Court. As a matter of fact, a Civil Contempt pertains to an order of 'Court of Law' affecting the rights of other parties to that order.

It is to be noted that, the disobedience of orders of Court in order to be a 'Civil Contempt' must be a willful one, a proof of sheer/mere disobedience is not enough. For an effective administration of Justice, the Court 'Exercising' of Contempt jurisdiction is essential concerned with the issue of 'Contumacious' conduct of a person, who is purported to have committed a default in complying with the directions of the order or Judgment.

As a Court of Law, when it deals with an application for Contempt, it cannot go beyond the order, non-compliance, which was alleged, there ought to be a clear cut case of obstruction of administration of Justice by a party intentionally to bring the matter within the ambit of Contempt. It cannot be forgotten that a 'Civil Contempt is less grave than a Criminal Contempt'. Indeed, the case should not rest on surmises and conjectures.

In order to sustain an action for Contempt in respect of a violation of an order, it is not necessary that the order must have been served on the party against whom it is ordered, if it is established that he had noticed the order. However, the burden is on the person, who claims that the individual against whom action is allegedly taken, has very much knowledge of the order. But if there is a genuine doubt, then the same will go in favour of the person, who is facing the Contempt.

In Law, an affected person has no right to insist that, a Court of Law should exercise such jurisdiction, because of the reason that 'Contempt' is between the contemnor and the Court. The proceedings, under Section 107 of Criminal Procedure Code, 1973 (CrPC) are for maintaining 'Public Peace and Tranquility'. In fact, the proceedings under Section 107 of CrPC. are not punitive in character. That apart, the ingredients of Sections 107 to 109 of CrPC. are there to maintain public peace and to prevent a wrongful act that may cause a breach of peace or disturb the public peace, as the case may be.

Section 107 of CrPC visualises that when an individual is likely to commit breach of peace or disturbed the public tranquility by a direct act and further when the person may be the indirect reason for the cause of the breach of peace or disturbance of public tranquility by indulging in a wrongful act, an Executive Magistrate may take action, as he deems fit and proper, after applying his thinking judicial mind and should not pass a mechanical order just because he had received a 'Report from the Police'.

The Magistrate can prepare the proceedings on the basis of 'Police Report or Other Information' which ought to be clear so as to offer notice to the persons proceeded against. Under Section 107 of CrPC, an enquiry will commence based upon the nature of show cause furnished by the concerned party. To ascertain the truth of information, an enquiry is commenced by the Magistrate and the enquiry mentioned in Section 116 of CrPC is in the character of trial in summary cases. No wonder, Section 116 of CrPC is to be read along with Section 254 of CrPC.

In the instant case, First Respondent/Inspector of Police, had addressed a communication to the Petitioner among other things stating that, his objection seeking permission for the conduct of festival was considered and that under the leadership of one Sithaman and Ramasamy, the village people in the said village were raising objections for the conduct of festival and if permission was granted to one side, there was a possibility of eruption of a Law and Order problem and as such, temporarily, the permission for conduct of festival was denied. It transpires that, the said refusal of permission, was passed by the First Respondent/Inspector of Police, within two days period granted by this Court, as per the order and in fact, the order of rejection was served on the Secretary of the festival committee (with a copy being marked to the Petitioner, as President) and also, the said order was pasted in a conspicuous place in front of the Temple address given by the Petitioner in the presence of Village Administrative Officer itself by the Revenue Inspector. Therefore, present Court, concluded that 'No Contempt' was committed by the Respondents. The Contempt Petition is dismissed.

Tags : Festival Conduct Representation

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High Court of Allahabad

Prabhakant Shukla Vs. Prabhat Motor Company

MANU/UP/2795/2017

01.11.2017

Civil

Leave can be granted by trial court to file documents on a good cause being shown by Defendant

The present petition is against orders passed by Courts below, on an application Paper moved by the Plaintiff for rejection of application 111-Ga of the Defendant to bring two documents namely trade tax return and power of attorney on record. The objection taken by Petitioner/Plaintiff in application 239-Ga was that, said documents had been filed with much delay and they were not part of record of written statement and as such the Defendant would be precluded from bringing them on record. The short issue raised in the present petition is whether the discretion exercised by the Trial Court in admitting the documents of the defendant was an outcome of an error in exercise of its judicial discretion. The Petitioner argued that, in view of the mandate of Order VIII Rule 1A and Order XIII Rule 1 of the Code of Civil Procedure, 1908, the documentary evidence in original can be filed only of those documents, copies whereof have been filed along with the written statement.

Sub Rule (1) of Rule 1A of Order VIII of Code of Civil Procedure, 1908 (CPC) mandates the Defendant to file a document which he intends to rely through a list of documents to be filed along with the written statement. Sub Rule (3) of said Rule further stipulates that, the document which is not produced at the time of filing of written statement, shall not be received in evidence, except with the leave of the Court. The provision is a time-saving step as it directs the Defendant to file his documents at the time of presentation of the written statement. It is also added with an intention to give opportunity to the Plaintiff to prepare beforehand as to the defence of the Defendant. The amending Act came into force from 1st July, 2002. Rule 1 of Order XIII added by way of amendment w.e.f. 1st July, 2002 stipulates that, all the documentary evidence in original shall be filed by both parties or their pleader before settlement of issues. This provision again makes it mandatory for the parties to produce their original documents within prescribed time.

No option is left upon the Defendant to bring any document on an evidence except those which have been filed along with the written statement, without the leave of the Court. The discretion conferred upon the Court to grant leave is to be exercised judiciously. There is no straight-jacket formula, however, on a good cause being shown by the Defendant, leave can be granted by the Trial Court to file the documents by the Defendant in his defence at the hearing of the suit. It cannot be said that in no case, the trial Court can grant liberty to the Defendant to bring the documents to base his defence before it, at a later stage of the suit.

In the instant case, the written statement was filed by the Defendant on 2nd February, 2006. The copy of the written statement has not been brought on record. The application 111-Ga filed by the Defendant along with the affidavit on 9th April, 2013 to bring the documents namely the trade tax return and power of attorney has also not been brought on record.

However, there is no averment with regard to the settlement of issues, by the Trial Court or the stage of the suit at which, the documentary evidences were filed by the Defendant. The order passed by the Trial Court further indicates that, the suit was dismissed in absence of the Plaintiff/Petitioner. The Trial Court having been satisfied with the explanation offered by the Defendant granted leave to bring his documents on record. For the delay in filing the same, the cost of Rs. 500/- had been imposed. A liberty is granted to the Petitioner/Plaintiff to file his evidence.

In view of facts recorded by the trial Court and the manner in which the leave has been granted, it cannot be said that, it had erred in allowing application 111-Ga admitting the Defendant's documents on record. The Revisional Court had rightly refused to interfere in its limited jurisdiction under Section 115 of the CPC. Present Court in exercise of its extraordinary supervisory powers under Article 227 of the Constitution of India is not inclined to interfere in the judicial discretion exercised by the trial Court. The present petition is found devoid of merits and hence dismissed.

Tags : Document Admission Validity

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