High Court of Bombay

Sonu Vs. State of Maharashtra

MANU/MH/0045/2018

15.01.2018

Criminal

Court cannot draw adverse inference against accused by invoking Section 106 of Evidence Act unless basic burden to prove the case is discharged by prosecution

The Appellant has assailed the judgment of conviction awarded by the Sessions Judge, for the offence punishable under Section 302 of the Indian Penal Code, 1860 (IPC). By the said judgment, the Appellant was sentenced to suffer life imprisonment and to pay a fine of Rs. 5,000, in default to suffer rigorous imprisonment for six months. Statement of Appellant was recorded under Section 313 of the Code of Criminal Procedure, 1973 (CrPC). He has denied material incriminating evidence against him. But he did not give any explanation as to how his wife died. After hearing prosecution and defence, learned Sessions Judge has convicted the Appellant.

In the case of Vishal @ Shivaji Mahadeo Kamble vs. The State of Maharashtra and another, The Division Bench of present Court has observed that, "the Court cannot draw adverse inference against the accused by invoking Section 106 of the Evidence Act, 1872 unless basic burden to prove the case is discharged by the prosecution." In the present case, prosecution has proved by the evidence of PW-3 and PW-4 that, the Appellant beat his wife by fist and kick blows. He beat her by stone and thereafter, he burnt her. PW-3 saw the Appellant sitting, when deceased was burning. His presence is not denied. As per the evidence of Medical Officer (PW-10), death of deceased was due to head and burn injuries. Prosecution has discharged it's burden. Prosecution has proved that, Appellant beat his wife by stone and caused head injury to her and thereafter, burnt her.

After discharging the burden by the prosecution, it was for the Appellant to explain as per Section 106 of Act as to how his wife died. But he has not stated anything about the incident or as to cause of death of deceased. Therefore, conduct of Appellant is material. Non-explanation by the Appellant shows that, he is the person who caused the death of his wife. The evidence on record, more particularly, the evidence of (PW-2) shows that, the Appellant was not doing any work. He was addicted to liquor and always used to beat his deceased wife. As per medical evidence, deceased died due to head and burn injuries. Prosecution has proved beyond reasonable doubt that, Appellant committed murder of his wife. There is no infirmity or illegality in the impugned Judgment. The appeal is dismissed.

Relevant

Vishal @ Shivaji Mahadeo Kamble vs. The State of Maharashtra and another reported in MANU/MH/2679/2016
: 2017 ALL MR (Cri) 1877

Tags : Conviction Validity Burden Discharge

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High Court of Delhi

Union of India and Ors. Vs. Satnam Singh and Ors.

MANU/DE/0097/2018

12.01.2018

Civil

Action of applying for political asylum may result in bad publicity for a country but same is not prejudicial to the sovereignty and integrity of India

In facts of present case, the Petitioner returned to India on an Emergency Certificate issued from the Consulate General of India, Vancouver (Canada). On his return, the Petitioner applied for a passport. The Regional Passport Officer rejected said application and placed Petitioner's name under the Prior Approval Category ('PAC') for a period of five years from the date of his return to India on the ground that, the Petitioner had requested the Government of Canada for political asylum. The request was, however, rejected by the Canadian Government. By an order, the appeal filed by Petitioner under Section 11 of the Act, impugning the order of the Regional Passport Officer, was also dismissed by the Chief Passport Officer. The said order was then challenged by Petitioner, which was allowed by the learned Single Judge. The Union challenged the order passed by the learned Single Judge in Satnam's case whereby the learned Single Judge set aside the order, which denied the passport facility to Satnam for 5 years.

The question that confronts present Court is whether the activities of the passport applicant, while visiting a foreign country on an Indian passport and then applying in that country for asylum, can be construed as "prejudicial to the sovereignty and integrity of India" resulting in justifiable refusal to denial of passport to such individual on that ground under Section 6 (1) (a) of the Passport Act, 1967. The decision by the Passport Office to deny passport was held to be illegal, by the learned Single Judge; the Union is consequently in appeal. The other two appeals involve identical facts.

The learned Single Judge had relied on Kulvir vs. Union of India which stated that, "the action of applying for political asylum may result in bad publicity for a country but that does not mean that same is prejudicial to the sovereignty and integrity of India and that howsoever depreciable the action of applying for political asylum may be, the said act on the part of the applicant for the Passport does not fall within the scope of activities prejudicial to sovereignty and integrity of India within the meaning of Section 6(1) (a) of the Act and thus cannot be a ground for denying Passport."

It thus becomes crucial to determine the meaning of the phrase 'prejudicial to the sovereignty and integrity of India' used in the Act. Apart from the Act, the phrase finds mention in clauses (2), (3), and (4) of Article 19 of the Constitution of India, where it was added as a ground for restriction on the freedom of expression. This was inserted by the Constitution (Sixteenth Amendment) Act, 1963, in order to combat secessionist agitation and conduct from organizations such as DMK in the South and Plebiscite Front in Kashmir, and activities in pursuance thereof which might not possibly be brought within the purview of the expression 'security of the State'. It was made to guard the freedom of speech and expression being used to assail the territorial integrity and sovereignty of the Union.

Rule 5 of Passports Rules, 1980 deals with the procedure for issuance of passport and Rule 5 prescribes the forms of application for applying for passport. The form has been set out in Part 1 of Schedule 3 of the Rules. Clause 19 of the application contains a self- declaration that, the applicant owes allegiance to the sovereignty, unity and integrity of India. Unless a person gives a declaration of such allegiance, a passport cannot be issued to such person. The mention of the phrase 'sovereignty, unity and integrity of India' in the declaration must have the same meaning as in the Act, and therefore it cannot be said to have been breached by the applicant/writ petitioners in having applied for political asylum.

Present Court is of the opinion, therefore, that sovereignty and integrity of the country are robust concepts that can withstand the actions of isolated individuals who may seek political asylum; their mere action in so seeking asylum- without more, by way of action tending to undermine the sovereignty, through actions that can result in disorder or violence- cannot be a ground for refusing passport to them.

The affidavit filed by the Appellants states that, from the information received from the 37 RPOs, it is found that, a total of 85 cases wherein the Applicants came back to India or were deported by a foreign government after rejection of their requests for political asylum, are still pending from the year 2013 to 2015. Generally, political asylum in a foreign country is sought by people who fear persecution in their own country and are, therefore, unwilling to return and such an act might bring disrepute to India, given that instances of people seeking passport after having been refused political asylum by a foreign country have risen in the recent years as in terms of the data provided by the Appellants. However in these cases, this Court concurs with the view in the impugned orders (and Kulvir) that, however, condemnable the act of seeking political asylum in a foreign land, ipso facto, (i.e. by itself, and without any other fact showing that the applicant had involved himself or herself with activities of any individual or groups that plot, or had conspired, or are conspiring violence and other such activities to undermine the establishments in India or a section of its people) it cannot possibly be a ground to deny passport under Section 6 (1) (a) of the Act.

The provisions of the Act should be strictly construed as they have the consequence of depriving a person of his essential rights, and such deprivation should not be done lightly, but within the confines of the legislative provision. Present Court, therefore, holds that the impugned orders as well as Kulvir have correctly appreciated the law and the applicable principles. Appeals are dismissed.

Relevant

Kulvir Singh vs. Union of India MANU/DE/3424/2014

Tags : Passport Denial Validity

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National Consumer Disputes Redressal Commission

Aero Club Vs. Ravinder Singh Dhanju

MANU/CF/0037/2018

12.01.2018

Consumer

Publication of an advertisement for sale at a bargain price of goods that are not intended to be offered for sale or supplied at said bargain price amounts to an unfair trade practice

The Petitioner is engaged in the business of selling Woodland Brand of shoes and apparels. The complainant/respondent went to a store of the Petitioner which had allegedly offered a discount of 35% on purchase of T shirt having maximum retail price of Rs. 2195 (inclusive of taxes). According to the Complainant, though the Petitioner had offered a flat 35% discount on the maximum retail price (inclusive of taxes), it charged a sum of Rs. 1498/- from him whereas, the price after deducting 35% discount comes to Rs. 1426.75. The Petitioner, according to the complainant had charged double VAT amount from him. It is also alleged that despite the request made by the complainant, the Petitioner refused to cancel the transaction, taking a plea that the invoice had already been generated. It was alleged that the petitioner had indulged into unfair trade practice, by charging double VAT amount. The complainant therefore, approached the concerned District Forum by way of a consumer complaint, seeking compensation quantified at Rs. 75,000 besides refund of the overcharged amount of Rs. 71.35. The District Forum having ruled in favour of the complainant, the Petitioner approached the concerned State Commission by way of an appeal. The said appeal having been dismissed vide impugned order, the Petitioner is before this Commission by way of instant revision petition.

When an advertisement is given promising a discount of say upto 10%/20%/30%/40%/50% on a product, this is an invitation to the consumer to buy the product at the aforesaid discount. Admittedly, VAT is not charged extra when the product is sold without a discount, since it is inbuilt in the MRP displayed on the product. If VAT is charged extra, while selling a product on discount, it would be an unfair trade practice as the customer would not get the promised discount since the quantum of the discount would get reduced to the extent of the amount of VAT is charged extra from him. If a consumer is lured to the store on the promise that, he would be offered a discount of say upto 40%, there is no reason why the discount as decided by the seller should not be actually made available to him. It is for the seller to decide how much discount, if any, it want to offer on its products. If the seller wants to offer say 10% discount, the consumer who has been lured to its store on the promise of such a discount must necessarily get that discount and it should not be reduced by charging extra VAT on the discounted price, when VAT is not charged extra on a product sold without discount. The consumer coming across an advertisement, promising a product on discount visits the store in the belief that the promised discount would be extended to him if he purchases a discounted product. It would be extremely unfair to him if the discount offered to him is reduced to the extent of the amount of the VAT. In such a case it would be immaterial whether the seller is offering a flat discount of say 40%/35% or it is promising a discount, say upto 35%/40%.

In terms of Section 2(1)(r)(2) of the Consumer Protection Act, 1986 publication of an advertisement for sale at a bargain price of goods that are not intended to be offered for sale or supplied at the said bargain price amounts to an unfair trade practice. When a seller advertises a product for the sale at a discount price of 35%/40% or a discount upto 35%/40% but charges VAT extra on the discounted price, he obviously does not intend to offer the goods at the bargain price advertised by him. If the seller despite advertising discount upto 35%/40% intends to charge VAT extra which he does not charge on the sale of an undiscounted product, it is nothing but an unfair trade practice, the object behind which is to lure the customer to his store by advertising a discount which the seller actually does not intend to give to the purchaser.

Once the customer reaches the store, he has no option except either to buy the product at a discount less than the discounts promised to him or to come back without any purchase despite having visited the store at considerable cost and inconvenience. If the customer or atleast some of them buy the product at lesser discount, instead of returning back empty handed, which is likely to be situation in most of the cases, the purpose of advertiser is well served as he is successful in obtaining pecuniary advantages on the basis of a misleading advertisement. Such an act would certainly constitute an unfair trade practice within the meaning of the Consumer Protection Act. Such an advertisement is a misleading advertisement since the seller does not intend to extend the whole of the discount promised by him to the purchaser. There is no merit in the revision petition, which is accordingly dismissed.

Tags : Compensation Grant Validity

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High Court of Gujarat

Mahesh Shakraji Thakore Vs. Commissioner of Police and Ors.

MANU/GJ/0009/2018

10.01.2018

Criminal

Registration of FIRs by itself cannot have any nexus with breach of maintenance of public order and the authority can take recourse under IPC

Instant petition is against the order of detention passed by the Respondent No. 1 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 two 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. Further exception that, the 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 inasmuch 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, 1860 (IPC) 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. In view of the ratio laid down by the Supreme Court, the Court is of the opinion that, the activities of the detenue cannot be said to be dangerous to the maintenance of public order and at the most fall under the maintenance of law and order. Further, there are serious allegations against the petitioner. On perusal of the jail record, it seems that, police has not taken proper care in investigating offences and Petitioner was arrested only on presumption.

Simpliciter 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. Even the Supreme Court has considered that, detention is not permitted even in the case of robbery and theft. The present case is under Sections 143, 147, 148, 149, 323, 324, 294(c) , 506 (2) and 114 of the IPC and 135 (1) of G.P. Act. Moreover, the competent authority has assigned such a reason that, since they are unable to take action under Sections 107 and 110 of the Criminal Procedure Code [Cr. P.C.], they are detaining the detenue. Unfortunately and surprisingly the authority has disclosed in the impugned order that, they do not believe in taking action under sections 107 and 110 of the Cr. P.C and instead of following such rule of law, they selected to pass an order of detention. Therefore, the Court has no option but to allow the petition.

No doubt, 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. In present case, the detaining authority failed to satisfy the Court that the detaining authority so bore the question in mind and, therefore, 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. The Apex Court rendered in the case of Rekha v. State of Tamil Nadu through Secretary to Government and another observed 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. The order of detention passed by the Respondent No. 1 is quashed. The petition is allowed.

Relevant

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

Tags : FIR Detention Validity

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National Consumer Disputes Redressal Commission

Anthony H. Silva Vs. Hermonie Mary Salazar

MANU/CF/0019/2018

10.01.2018

Consumer

Complaint cannot barred by limitation, where there is case of continuing cause of action

Instant first appeal has been filed under Section 19, read with Section 21(a)(ii) of the Consumer Protection Act, 1986 against the impugned order, passed the State Commission. The Respondent/complainant, filed the consumer complaint before the State Commission, saying that, she alongwith her siblings were absolute owners of agricultural land measuring 4972.9 sq. mtr. alongwith structures standing thereon, at village Kondivata, Taluka Andheri East at Bombay suburban.

The Opposite Party (OP) builder/Appellant, approached them with a proposal to take over the said land on "as is where is" basis and develop the same, by settling with the persons in occupation of the structure on the said land at his own cost and expenses and after obtaining necessary permissions and sanctions from the concerned authorities. On 7th November, 87, an agreement was entered between the complainant and four others on one side and the OP Builder on the other side, according to which, the developer was supposed to provide flats to the 5 owners, including the complainant for a total area of 8500 sq. ft. and sell the rest of the flats to various other persons and appropriate the sale proceeds thereof. The flats were to be provided to the complainants on ownership basis. It is alleged that, the developer completed the construction of the building, but failed to put the complainant in possession of the flat, to which she was entitled as per the terms and conditions of the agreement. The main issue that arises for our consideration is whether the consumer fora had the jurisdiction to deal with the consumer complaint in question and that whether the consumer complaint was barred by limitation under section 24A of the Consumer Protection Act, 1986.

In "Bunga Daniel Babu versus M/s. Sri Vasudeva Constructions & Ors." the Apex Court brought out clearly that, in cases where development is made by a developer on the property provided by the land owner, and in lieu of that a certain portion of the developed property is to be provided to the land owner, the Builder does come under the definition of 'service provider' vis-à-vis the land owner and hence, the land-owner does come under the definition of consumer. There is only one rider provided in the matter that the land-owner should not be an active participant in managing the affairs of the builder. In the present case, it is made out that the complainant alongwith her siblings made her property available to the OP and she had no role in the management of the affairs of the Builder. Relying upon the judgment of the Apex court in "Bunga Daniel Babu versus M/s. Sri Vasudeva Constructions & Ors.", therefore, the complainant does fall under the definition of 'consumer' vis-à-vis the OP Builder. It is held, therefore, that the complainant is a consumer vis-à-vis OP Builder and hence, the consumer fora had the jurisdiction to handle the consumer complaint in question.

The Appellant/OP has stated that, the agreement between the parties was entered in the year 1987 and according to the same, the property was to be provided to the complainant within a period of 3 years. However, it is their own version that they offered the possession of the property to the complainant in or around the year 1994 only, meaning thereby that they failed to take action in accordance with the terms and conditions of the agreement. It is also the case of the OP that they provided flats having built-up area of 950 sq. ft. each to the land owners at a different locality in lieu of built-up area of 1700 sq. ft. each to be provided under the agreement dated 07.11.87. The allegations levelled by the complainant, therefore, that the OP failed to provide her a flat, having area of 1700 sq. ft. as promised, is true. This would, therefore, be a case of continuing cause of action till the flat is provided to the complainant as per the agreement between the parties. Even if the complainant failed to file the consumer complaint within a period of 2 years as prescribed under Section 24A of the Act, she cannot be debarred from filing the same after the expiry of the said period, as she cannot be denied the offer of flat in terms of the agreement. The complaint was not barred by limitation, as it is a case of continuing cause of action.

Vide impugned order, the State Commission directed the OP to handover the possession of the flat or flats having aggregate area of 1700 sq. ft. to the complainant in terms of the agreement dated 07.11.1987 and also to provide compensation of 50,000/- for mental agony and 10,000/- as cost of litigation. There is no infirmity or illegality in the said order, which may call for any interference in the exercise of the appellate jurisdiction. The present appeal is, therefore, dismissed and the order passed by the State Commission upheld.

Relevant

Bunga Daniel Babu versus M/s. Sri Vasudeva Constructions & Ors.

Tags : Complaint Maintainability Possession

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High Court of Jammu and Kashmir

S.P. CBI Anti Corruption Vs. Tej Krishan Koul

MANU/JK/0003/2018

09.01.2018

Criminal

Appellate Court cannot interfere with order of acquittal if the view taken by Trial Court is reasonable and findings recorded by it are not manifestly erroneous or contrary to the evidence on record

The Superintendent of Police, Central Bureau of Investigation, Anti-Corruption Bureau, Jammu, has filed this appeal against the judgment of acquittal passed by the learned Special Judge, Anti Corruption, Jammu, whereby the Respondent/accused has been acquitted of the charges levelled against him by the prosecution. The Appellant seeks the reversal of the judgment by convicting the Respondent/accused for the offences with which he has been charged. The core issue that arises for consideration in present appeal is whether, while recording the judgment of conviction and sentence, the prosecution evidence has been appreciated and scanned in the right perspective.

It needs to be understood at the first blush that, it is well settled in law that, the Court while hearing an acquittal appeal has the powers to re-appreciate the evidence. However, the Court cannot interfere with the order of acquittal, if the view taken by the trial Court is a reasonable one deduced from the evidence on record and the findings recorded by the trial Court are not manifestly erroneous, contrary to the evidence on record or perverse. This position of law has been enunciated by the Supreme Court in the cases of Ram Swaroop and ors. v. State of Rajasthan, Vijay Kumar v. State and Upindra Pradhan v. State of Orissa.

The basic and necessary ingredients of the offences within the fold of which the case of the accused has been wrapped, the prosecution has to establish that there was a demand from the accused for the payment of bribe; the accused accepted it and it was recovered from the possession of the accused. All these three ingredients have to be established by the prosecution and the mere recovery of money from the accused cannot and shall not mean that the accused has demanded and accepted the bribe.

The prosecution has to establish the factum of the demand and acceptance of illegal gratification on the part of the accused by substantive evidence. The statement of PW-1 (who is the complainant in the instant case) being the bribe-giver requires to be scanned with utmost caution and corroboration thereof has to be insisted upon. The position of a bribe-giver who consciously offers bribe to the accused in a trap case is that of an accomplice notwithstanding the fact that his intention was only to book the culprit from whom the demand of illegal gratification emanated. Therefore, the testimony of the complainant has to be analysed on these aspects with corroboration on material particulars.

The judgment of the trial Court illustrates and elucidates each and every aspect of the case. The trial Court has on the basis of the facts and the law applied to the case rightly concluded that, the evidence of PW-4 who has shaken the very substratum and the foundation of the prosecution case is credit worthy both on its merit and intrinsic value. It is correct to state that, the statement of PW-4 is neither in line nor in tune to the prosecution version in the matter of the demand, acceptance and the recovery of the bribe money. The trial Court has meticulously analysed and appreciated the statement of PW-1 and has rightly viewed that his statement is not free from blemish. The The trial Court on an analysis of the other evidence on record has rightly opined that, the prosecution has failed to corroborate the testimony of PW-1 in the material particulars of the case. The judgment of the trial Court is descriptive. It touches all the aspects of the case and nothing further requires to be added to it. It cannot be called in question on any of the grounds be that the application of law or the appreciation of the evidence. It is well written and complete in all the details as a corollary to which this appeal entails dismissal and accordingly, the same is dismissed and the judgment of the trial court is upheld.

Relevant

Ram Swaroop and ors. v. State of Rajasthan (MANU/RH/0232/2002
: 2002 (13) SCC 134), Vijay Kumar v. State (MANU/SC/0627/2009
: 2009 (12)SCC 629) and Upindra Pradhan v. State of Orissa (MANU/SC/0501/2015
: 2015 (11) SCC 124)

Tags : Illegal gratification Acquittal Validity

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