Supreme Court

Dinesh Kumar Kalidas Patel Vs. The State of Gujarat

MANU/SC/0110/2018

12.02.2018

Criminal

Mere fact that deceased allegedly died an unnatural death could not be sufficient to bring home a charge under Section 201 of IPC

Present is a case where the Appellant's wife committed suicide by hanging. The incident took place on 26th December, 1990. The information was conveyed to the family of the deceased. The father and brother of the deceased, who is a doctor by profession, attended the last rites. After more than three months, the father of the deceased filed a complaint before the Judicial Magistrate. The same was investigated, and the Appellant was charged under Sections 304B, 306, 498A and 201 read with Section 120B of the Indian Penal Code, 1860 (IPC) and Section 4 of the Dowry Prohibition Act, 1961. Along with the Appellant, seven other persons also faced the trial. By judgment, the Sessions Judge convicted the Appellant under Sections 498A and 201 of IPC but acquitted the seven others. The appeals fled in 1995 were heard in the year 2015 and, as per the impugned judgment, the Appellant was acquitted of the offence under Section 498A of the IPC but conviction under Section 201 of IPC was maintained. Thus aggrieved, the Appellant is before present Court.

The law is well-settled that, a charge under Section 201 of the IPC can be independently laid and conviction maintained also, in case the prosecution is able to establish that, an offence had been committed, the person charged with the offence had the knowledge or the reason to believe that, the offence had been committed, the said person has caused disappearance of evidence and such act of disappearance has been done with the intention of screening the offender from legal punishment. Mere suspicion is not sufficient, it must be proved that the Accused knew or had a reason to believe that, the offence has been committed and yet he caused the evidence to disappear so as to screen the offender. The offender may be either himself or any other person.

The only ground for maintaining the conviction under Section 201 of the IPC is that, the Appellant did not give intimation to the police of the unnatural death and that no post-mortem was conducted. The Appellant has been acquitted of the offence under Section 498A by the High Court. The prosecution has also not been able to satisfy the ingredients under Section 201 of the IPC. Neither the Sessions Court nor the High Court has any case that there is any intentional omission to give information by the Appellant to the police. It is also to be noted that, prosecution has no case under Section 202 of the IPC against the Appellant.

As held by this Court in Hanuman and Ors. vs. State of Rajasthan, the mere fact that, the deceased allegedly died an unnatural death could not be sufficient to bring home a charge under Section 201 of the IPC. Unless the prosecution was able to establish that the Accused person knew or had reason to believe that an offence has been committed and had done something causing the offence of commission of evidence to disappear, he cannot be convicted.

There is no such allegation against the Appellant. The last rites of the deceased were performed in the presence of the members of her family. They had no suspicion at that time of the commission of any offence. The private complaint was lodged after more than three months. There is no charge under Section 202 of the Indian Penal Code of intentionally omitting to give information of the unnatural death to the police. It is also not the case of the complainant that, he had requested for post-mortem of the body and that intimation should have been given to the police before the last rites were performed. The Sessions Court is not justified in convicting the Appellant under Section 201 of the IPC and the High Court maintaining the same. Accordingly, the appeals are allowed. The conviction of the Appellant under Section 201 of the IPC is set aside.

Relevant

Hanuman and Ors. v. State of Rajasthan MANU/SC/0305/1994
: 1994 Supp (2) SCC 39

Tags : Suspicion Conviction Legality

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Supreme Court

Sube Singh and Ors. Vs. Shyam Singh (dead) and Ors.

MANU/SC/0106/2018

09.02.2018

Motor Vehicles

Multiplier should depend on the age of the deceased and not on the age of the dependants

In a motor accident which occurred on 22nd September, 2009, Ajit Singh, who was at the relevant time 23 years of age died. His parents, who were in the age group of 40 to 45 years, filed a petition claiming compensation. The Motor Accident Claims Tribunal held that, the established income of the deceased was around Rs. 4,200 per month and after deduction of 50% as the deceased was unmarried, calculated the same as Rs. 2,100 per month. Thereafter, it applied multiplier 15, taking the age of the "parents of the deceased" into consideration. This was challenged by the Appellants by way of an appeal before the High Court which was partly allowed in relation to other heads of compensation. As regards multiplier applied for determination of loss of future income, the High Court held that, multiplier 14 will be applicable. For that, the High Court relied on the decision of this Court in Ashvinbhai Jayantilal Modi. Resultantly, the Appellants have filed the present appeal, questioning the correctness of the conclusion so reached by the High Court.

The sole question to be answered in present appeal is whether the High Court was right in applying multiplier 14 for determining compensation amount in a motor accident claim case in reference to the age of parents of the deceased whilst relying on the decision of this Court in Ashvinbhai Jayantilal Modi v. Ramkaran Ramchandra Sharma and Anr.

On the basis of the finding recorded by the Tribunal and affirmed by the High Court, it is evident that the deceased was 23 years of age on the date of accident i.e. 22.09.2009. He was unmarried and his parents who filed the petition for compensation were in the age group of 40 to 45 years. The High Court, relying on the decision in the case of Ashvinbhai Jayantilal Modi, held that multiplier 14 will be applicable in the present case, keeping in mind the age of the parents of the deceased. The legal position, however, is no more res integra. In the case of Munna Lal Jain decided by a three Judge Bench of present Court, it is held that multiplier should depend on the age of the deceased and not on the age of the dependants.

In Sarla Verma, this Court has endeavoured to simplify the otherwise complex exercise of assessment of loss of dependency and determination of compensation in a claim made Under Section 166. It has been rightly stated in Sarla Verma that the claimants in case of death claim for the purposes of compensation must establish (a) age of the deceased. (b) income of the deceased; and (c) the number of dependents. To arrive at the loss of dependency, the Tribunal must consider (i) additions/deductions to be made for arriving at the income; (ii) the deductions to be made towards the personal living expenses of the deceased; and (iii) the multiplier to be applied with reference to the age of the deceased.

A priori, the Respondents are directed to pay compensation by applying multiplier of 18, instead of 14 as applied by the High Court. The rate of interest is modified to 9% per annum instead of 6% per annum granted by the Tribunal and High Court. The order passed by the High Court stands modified. Accordingly, the appeal is allowed.

Relevant

Ashvinbhai Jayantilal Modi v. Ramkaran Ramchandra Sharma and Anr. MANU/SC/0873/2014
: 2015 (2) SCC 180; Sarla Verma (Smt.) and Ors. v. Delhi Transport Corporation and Anr. MANU/SC/0606/2009
: 2009 (6) SCC 121; Munna Lal Jain and Anr. v. Vipin Kumar Sharma and Ors. MANU/SC/0640/2015
: 2015 (6) SCC 347

Tags : Compensation Determination Multiplier

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Supreme Court

State of Madhya Pradesh and Ors. Vs. Mahendra Gupta and Ors.

MANU/SC/0097/2018

08.02.2018

Motor Vehicles

All decisions of a multi-member body are expressed by opinion of majority of members present except where special majorities are provided in statute itself

In facts of present case, the writ Petitioners have permanent permit for two routes, one Gwalior to Bhander and second Gwalior to Datia. Respondent No. 3 has also the permanent permit for the route Gwalior to Jhansi. Respondent No. 3 preferred an application for modification of time Schedule for movement of his vehicle. The application of Respondent No. 3 came for hearing before the State Transport Authority. On the date of hearing both counsel for the applicant as well as counsel for the objectors were heard. The State Transport Authority allowed the modification and decided to change the time Schedule as prayed by the applicant in the public interest. The order was issued by the State Transport Authority.

Aggrieved by the order, Writ Petition was filed by the two Petitioners who were objectors before the State Transport Authority. In the writ petition various grounds were taken questioning the application filed by the applicant. One of the grounds taken before the learned Single Judge was that, although the State Transport Authority heard the matter on 16th October, 2014 consisted of Chairperson and two members, however, the order was delivered with the signatures of Chairperson and only one member, since one member, was transferred in the meanwhile, hence, the order dated 15th December, 2014 is illegal. The learned Single Judge accepted the contention of the writ Petitioners and allowed the writ petition by setting aside the order dated 15th December, 2014. The Division Bench dismissed the appeal filed by the State upholding the view of the learned Single Judge.

The statutory provisions of the Motor Vehicles Act, 1988 as well as the Madhya Pradesh Motor Vehicles Rules, 1994 indicate that, the State Transport Authority is a multi-member body constituted by the State Government under Section 68(1). The State Transport Authority is a multi-member body which transacts business in meeting except in case of emergency. Meeting is to be convened at such time and at such place as the Chairman may appoint. Three days' notice is required to be given to the members and quorum of the meeting is the Chairman or the nominated Chairman and two other members, i.e., quorum is three.

In the present case, there is no dispute that, when the meeting was held on 16th October, 2014 quorum was complete since Chairperson and two members were present which fact is clearly noticed in the order dated 15th December, 2014. The three members who were present in the meeting heard the Applicant and objectors. But the order could be issued only on 15th December, 2014, by which one of the members had been transferred and was not available to sign the order.

The multi-member body transacts its business after debate, consultation and discussion. The view of multi-member body is expressed unanimously or by votes. For various kind of decisions by multi-member body special majorities are also provided for acceptance of the decision. Normally, all decisions of a multi-member body are expressed by opinion of majority of the members present except where the special majorities are provided in the statute itself.

Although Rules, 1994 do not expressly provide that, decision of the State Transport Authority shall be taken in accordance with the opinions of the majority but there being no special majority provided for decision to be taken in the meeting of the State Transport Authority, normal, Rule that decision by majority of the members present has to be followed. In the present case, when three members were present and quorum was complete, the decision taken by majority, i.e., opinion of two members shall form the valid decision of the State Transport Authority. Rule 65 Sub-section (2) of the Rules dealing with the conduct of business of Transport Authorities provides that, the State or Regional Transport Authority, as the case may be, may decide any matter of urgent nature without holding a meeting by the majority of votes of members by recorded in writing and send to the Secretary (hereinafter referred to as the procedure by circulation).

Thus, the concept of taking decision by majority of votes of the members is very much present in the scheme of the Rules. Although, where a decision is to be taken by the circulation by votes a special majority is provided in Rule 65(4) but present being not a case of decision by circulation, simple majority by members present was sufficient for making a binding decision by the State Transport Authority. The present is a case where decision by a multi-member body is to be taken in the meeting of the Committee as per the statutory Rules. There being no such majority provided for taking a decision, the decision by majority has to be accepted as the opinion of the State Transport Authority.

Decision dated 15th December, 2014 issued with the signatures of Chairperson and one member was a valid decision in spite of the fact that, one of the members who were present in the hearing when the meeting took place on 16th October, 2014 and had been transferred in the meanwhile did not sign the order. The decision of the State Transport Authority dated 15th December, 2014 was fully in accordance with the statutory scheme of the Rules, 1994 and both the learned Single Judge and Division Bench erred in holding the decision as invalid. The appeal is allowed and judgments of the High Court are set aside.

Tags : Decision Validity

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High Court of Bombay

Bhagwat Pitambar Borse Vs. Anusayabai Bhagwat Borse and Ors.

MANU/MH/0209/2018

08.02.2018

Criminal

Once the dispute is adjudicated by Competent Courts, it is not necessary for Petitioner to prove same thing again and again in different proceeding

The Petitioner-husband had filed Hindu Marriage Petition for dissolution of marriage. It was decided on 24th April, 2006 and the divorce is granted. The Petitioner, then filed Misc. Application under Section 125(5) and Section 127 of the Code of Criminal Procedure,1973 (CrPC) for cancellation of the maintenance order on the ground that, divorce decree is passed against the Respondent wife on the ground of adultery and the marriage is dissolved. The learned Judicial Magistrate rejected the application. The Petitioner preferred Criminal Revision Application. The learned Additional Sessions Judge, dismissed the revision and confirmed the order passed by the learned Judicial magistrate. Hence present criminal writ petition.

As per Section 125(4) of CrPC, no Wife shall be entitled to receive an allowance from her husband under this section if she is living in adultery, or if, without any sufficient reason, she refuses to live with her husband, or if they are living separately by mutual consent. Further, according to Section 125(4) of CrPC, on proof that any wife in whose favour an order has been made under this section is living in adultery, or that without sufficient reason she refuses to live with her husband, or that they are living separately by mutual consent, the Magistrate shall cancel the maintenance order.

In the present case, admittedly divorce in favour of the Petitioner husband was granted on the ground that, Respondent wife was living in adultery. It is also undisputed that, the order of the civil Court granting divorce on the ground of adultery has attained finality. It is not necessary for the Petitioner to lead evidence again in the proceeding before the learned Magistrate to prove the adultery on the part of Respondent wife. Once the dispute between the parties in relation to a particular issue is already adjudicated by the competent Courts, it is not necessary for the Petitioner to prove the same thing again and again in different proceeding, particularly in criminal proceedings.

Once the Petitioner husband has established that the Respondent wife was living in adultery and on that ground divorce has been granted to the Petitioner, in such circumstance, it is not necessary for the present Petitioner husband to prove the same thing again in different proceeding. In view of the concurrent findings, it is established that, the Respondent was leading adulterous life.

Learned Judicial Magistrate, has wrongly rejected Miscellaneous Application, filed by the present Petitioner under Section 125(5) and Section 127 of the CrPC for cancellation of maintenance as well as the learned Additional Sessions Judge, has wrongly dismissed Criminal Revision Application. Therefore both the orders are set aside.

Tags : Maintenance Cancellation Grant

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High Court of Delhi

NJ Constrution Vs. Ayursundra Health Care Pvt. Ltd. and Ors.

MANU/DE/0521/2018

07.02.2018

Arbitration

Where more than one court has jurisdiction, it is open for parties to exclude all other Courts

The Respondent No. 1 floated a notice inviting tender for the civil and electrical work of Super Specialty Hospital, wherein several bids were invited. The hospital was to be constructed at Guwahati. The Petitioner also participated and was awarded the said work order at the mutually agreed amount. The LOI was issued by Respondent No. 1 for the said work.

An Article of Agreement was entered into containing the special conditions of the Contract, Specifications and Schedules of quantities with the rates entered therein forming part of the agreement/LOI. It is alleged by the Petitioner that Respondent did not pay the complete advance mobilization money despite request even after five months from the date of the execution of the agreement. The Petitioner kept on doing the work and sending the bills. There was some dispute qua payments. Receiving no response, the Petitioner sent a legal notice for appointment of arbitrator. The main dispute is if arbitrator at Delhi is to be appointed or the courts at Guwahati shall have the jurisdiction.

In Indus Mobile Distribution Pvt. Ltd. V. Datawind Innovation Pvt. Ltd., it was held that it is well settled that where more than one court has jurisdiction, it is open for parties to exclude all other Courts. In CVS Insurance and Investments v. Vipul IT Infrasoft Pvt. Ltd., the Court held that, (a) there shall be only one seat of arbitration though venues may be different; (b) where the arbitration seat is fixed (may be neutral), only such court shall have an exclusive jurisdiction; (c) where a seat/place of arbitration is fixed it is section 20(1) and section 20(2) of the Act we are referring to; and (d) venue relates to convenience of parties, per section 20(3) of the Act.

In the circumstances, since the seat of the arbitration is at New Delhi, a neutral venue, only such Court shall have jurisdiction to decide. Hence, petition is allowed and Retired Judge is appointed as an Arbitrator to arbitrate the dispute between the parties. The arbitration proceedings shall be conducted under the aegis of DIAC. The fee of the learned Arbitrator is as per the fee schedule of the DIAC.

Relevant

Indus Mobile Distribution Private Limited vs. Datawind Innovations Private Limited and Ors. MANU/SC/0456/2017
, CVS Insurance and Investments v. Vipul IT Infrasoft Pvt. Ltd. MANU/DE/5065/2017

Tags : Jurisdiction Seat Determination

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High Court of Jammu and Kashmir

Trust House Constructions Vs. State of J&K and Ors.

MANU/JK/0072/2018

07.02.2018

Arbitration

Petitioner who is not a party to agreement containing an arbitration clause cannot be party to arbitration proceedings between the parties to arbitration agreement

The grievance projected by the Petitioner in instant petition is that, while the arbitration proceedings between Respondent Nos. 2 and 4 were going on before the Arbitral Tribunal, the Petitioner who was vitally interested in the aforesaid proceedings having executed the balance work on behalf of Respondent No. 4, moved an application before the Arbitral Tribunal seeking its impleadment, but its application was turned down by the Arbitral Tribunal vide order dated 24.10.2009, impugned in this petition. The Petitioner assails the order impugned primarily on the ground that, the Petitioner has a vital interest in the arbitration proceedings pending before the Arbitral Tribunal and its presence in the arbitration proceedings would facilitate effective adjudication of the lis before the Arbitral Tribunal.

Admittedly, the work in question was allotted by Respondent No. 2 in favour of Respondent No. 4 and there is no privity of contract between the Petitioner and Respondent No. 2. The subject matter of adjudication before the Arbitrator is with respect to the contract executed between Respondent No. 2 and Respondent No. 4. It is this contract which contains arbitration clause for adjudicating upon the disputes between the parties to the contract. The Arbitral Tribunal was right in coming to the conclusion that the application of the Petitioner for impleadment/intervention in arbitration proceedings is not maintainable. The mandate of Arbitral Tribunal is only to adjudicate upon the disputes between the parties to the arbitration agreement which arise out of the contract agreement containing the arbitration clause, executed between the parties. The Petitioner may have an independent claim against Respondent No. 4 for which it needs to work out its remedies but surely it has no locus to be party in the arbitration proceedings pending before the Arbitral Tribunal between Respondent Nos. 2 and 4 who alone are the parties to the arbitration agreement.

The question as to party to the arbitration proceedings was examined by the Supreme Court, though in the context of Section 11 of the Arbitration and Conciliation Act, 1996 in the case of Indowind Energy Ltd. v. Wescare (I) Ltd. and Anr. On the analogy of the aforesaid judgment, Petitioner who is not a party to the agreement containing an arbitration clause cannot be party to the arbitration proceedings between the parties to the arbitration agreement. There is no merit in instant petition and the same is therefore, dismissed. The Petitioner, however, is left free to work out its remedies against Respondent No. 4.

Relevant

Indowind Energy Ltd. v. Wescare (I) Ltd. and Anr.;MANU/SC/0300/2010
: AIR 2010 SC 1793

Tags : Impleadment Maintainability Privity Contract

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