High Court of Orissa

Prafulla Kumar Sahu Vs. Uchaba Sahoo and Ors.

MANU/OR/0163/2018

29.03.2018

Property

It is the duty of the first appellate court to scan evidence on record and pleadings and answer all issues

The case of the Plaintiff is that, he is the natural born son of Ekadasi Sahu. He was adopted by Naran Sahu. On 8th August, 1966, Naran Sahu executed a deed acknowledging adoption, Ext. 5, in his favour. Plaintiff instituted the suit seeking the reliefs. The Defendant No. 1 filed a written statement denying the assertions made in the plaint. According to him, the Plaintiff is not the adopted son of Naran. The sale deed was executed by Naran for legal necessity. Learned trial Court dismissed the suit holding that, Plaintiff is not the adopted son of Naran Sahu. Present is Plaintiff's appeal against an affirming judgment in a suit for permanent injunction.

In Santosh Hazari vs. Purushottam Tiwari (deceased) by LRs', the Apex Court reminded the duty of the first appellate court. The Apex Court held that, the appellate Court has jurisdiction to reverse or affirm the findings of the trial court. First appeal is a valuable right of the parties and unless restricted by law, the whole case is therein open for rehearing both on questions of fact and law. The judgment of the appellate court must, therefore, reflect its conscious application of mind and record findings supported by reasons, on all the issues arising along with the contentions put forth, and pressed by the parties for decision of the appellate court. The task of an appellate court affirming the findings of the trial court is an easier one. The appellate court agreeing with the view of the trial court need not restate the effect of the evidence or reiterate the reasons given by the trial court; expression of general agreement with reasons given by the court, decision of which is under appeal, would ordinarily suffice. Expression of general agreement with the findings recorded in the judgment under appeal should not be a device or camouflage adopted by the appellate court for shirking the duty cast on it.

First appeal is valuable right of the parties. The whole case is open for rehearing both on questions of fact and law. The judgment of the appellate court must, therefore, reflect its conscious application of mind and record findings supported by reasons, on all the issues arising along with the contentions put forth, and pressed by the parties for decision of the appellate court.

It is the duty of the first appellate court to scan the evidence on record and pleadings and answer all issues. In the instant case, the judgment is a laconic one. No reason has been assigned. Thus, the judgment and decree of the learned lower appellate court is set aside. The matter is remitted back to the learned lower appellate court for de novo hearing.

Relevant

Santosh Hazari vs. Purushottam Tiwari (deceased) by LRs', MANU/SC/0091/2001
: (2001) 3 SCC 179

Tags : Deed Execution Right

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High Court of Patna

Om Prakash Mishra Vs. The State of Bihar

MANU/BH/0792/2018

29.03.2018

Criminal

For not keeping his promise to marry the victim, the Appellant can certainly not be convicted and sentenced for rape

The Appellant has been convicted under Section 376 of Indian Penal Code, 1860 (IPC) vide judgment passed by the learned 2nd Additional District & Sessions Judge, he has been sentenced to undergo rigorous imprisonment for seven years, to pay a fine of Rs. 25,000/- and in default of payment of fine, to further suffer simple imprisonment for one year. The amount of fine realized from the Appellant has been directed to be paid to the victim.

The Appellant was made accused in instant case on the basis of the F.I.R lodged by the victim. In the F.I.R, she has alleged that she was being subjected to rape by the Informant for about four years on the false assurance of marriage. It was further stated by her that, about 2-3 days prior to lodging of the F.I.R, the Appellant had married another girl, despite the family members of the appellant as well as of the girl knowing fully well that the prosecutrix was having relationship with the Appellant. The sole question now remains whether the consent had been obtained on the false promise of marriage.

"Consent" is an act of reason, accompanied by deliberation. The mind of the person giving consent for sexual act weighs, as if, on a balance: the good and evil on each side. A distinction therefore has clearly been made between rape and consensual sex. On a plain reading of Section 90 of the IPC, it becomes very clear that though consent has not been defined but what is not a consent has been explained. The victim as well as perpetrator of the crime, both, are required to know that the consent was given in consequence of any misconception.

There is a distinction between making a false promise for marriage which could come under the category of misconception in the mind of the victim and a breach of promise or non-fulfilment of the promise. If the promise made by the perpetrator of the crime is false from the beginning, any consent by the victim would be of no consequence. If the promise to marry is not fulfilled for reasons other than the deliberate act of the offender in not keeping up the promise after satisfying his bodily lust, it would not fall within the definition of rape as defined under Section 375 of the IPC. But the converse would not be true. If a false promise is made for obtaining the consent, it is rape simpliciter.

Section 375 of the IPC defines rape. A man is said to commit rape if he subjects the victim to different acts as defined in the Section, against her will or without her consent or with her consent when the same has been obtained by putting her or any person in whom she is interested in fear of death or of hurt or with her consent when the offender knows that he is not her husband and the consent is given because the victim believes that the offender is lawfully married to her, or with her consent when she is not capable of giving such consent because of unsoundness of mind or intoxication or when she is under 18 years of age and unable to communicate consent.

The provision spells out conditions under which the consent would not exclude the offence of rape. If an act is committed against the will of a person, it pre-supposes that it did not have the consent of the victim. However, a separate category has been carved out where "against the will" and "without her consent" have been enumerated separately.

In the present case, the factual aspects have already been enumerated. What is to be seen is whether it was a case of abject submission of victim (P.W. 3) in face of an allurement made by the Appellant that, he would marry her later. Whether such an allurement was only for the purposes of beguiling the victim or was it a genuine promise of marriage by convincing the victim to take a conscious decision for permitting sexual act. Whether this tacit consent by the victim was a result of misconception created in her mind about the intentions of the appellant to marry her. These are questions which can only be answered on the basis of an analysis of the deposition of the victim and other materials brought before the Trial Court.

No attempt was made by the prosecution to prove that in the first instance when the victim was subjected to rape, she was less than 18 years of age. The only evidence of age before the Trial Court or before this Court is the assessment of the age of the victim as 17-18 years on 30th December, 2005 when she was examined by P.W. 4. This was after four years of the relationship between the Appellant and the victim. If the outer limit of the age assessed by the P.W. 4 (Doctor) is taken as the reference point, the victim would definitely be much less than 18 years of age in the year 2001. Since the allegation of rape in the first instance i.e. in the first meeting of the appellant with the victim, is found to be doubtful, it cannot be said with certainty that she was subjected to rape against her will when the victim was not of the age of giving consent.

The present case has been lodged only after the Appellant performed marriage with another women, further establishes that the case has been lodged because of the Appellant not having married the victim. Even in the F.I.R, P.W. 3 has disclosed her mindset that she wants to enter into matrimonial relationship with the Appellant and should it not happen, the consequences and the responsibility shall fall on the family members of the Appellant and the woman with whom he has married. This clearly means that, she is ready to settle the case if she is married to the Appellant.

Thus, present court is of the view that the allegation of rape in the year 2001 could not be established because of the doubtful circumstances, specially the conduct of the victim. The fact that the relationship was established thereafter continuously for four years is an evidence of fact that, the later sexual acts were with the consent of the victim. The evidence about the Appellant having served the victim during her troubled days and continuing with the relationship demonstrates that there was a real intention of the Appellant to marry the victim. Epistolary messages, brought on record at the instance of the victim reaffirm the aforesaid fact viz. that the Appellant and the victim were in absolute love; one of such letters even depicting a plan to elope. Thus, it cannot be said that, the intention of the Appellant was to satisfy his body lust by giving a false hope of marriage to the victim. The marriage may or may not have taken place because of other circumstances which are not clearly known. In that event, if according to the victim, the relationship continued for four years, it would be difficult to presume that, it was without the consent and against her will.

Under the circumstances stated above, it is also difficult for present Court to presume that, the Appellant had made a false promise to the victim that he would marry her and that the consent was obtained on such misconception. For not keeping his promise to marry the victim, the Appellant can certainly not be convicted and sentenced for rape. The Appellant, who has already remained in custody for quite some time, is entitled to the benefit of doubt. Accordingly, the judgment of conviction and order of sentence are set aside. The appeal succeeds.

Tags : Rape Conviction Validity

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High Court of Punjab and Haryana

Deepak Rana Vs. State of Punjab

MANU/PH/0237/2018

27.03.2018

Criminal

In absence of clear, unambiguous and individual communication, search was vitiated, even if, accused opted and reposed faith in Investigating Officer to conduct search

The prosecution story is that on 19th September, 2013, police party was on patrolling. On personal search of the accused, white intoxicating powder wrapped in plastic envelope was recovered. Two samples of 5/5 grams each were taken out and remaining quantity was weighed which came out to be 40 grams. The case property was sealed and sample parcels were prepared. The accused was produced before the SHO, who also affixed his seal on the case property. Trial Court convicted and sentenced the appellant. Appellant has preferred present appeal against the judgment of conviction and order of sentence passed by Judge Special Court whereby he was convicted for the offence punishable under Section 22 of the Narcotic Drugs And Psychotropic Substances Act, 1985 (NDPS Act) and sentenced to undergo rigorous imprisonment for a period of four and half months along with fine of Rs. 2000. In default of payment of fine, he was to further undergo rigorous imprisonment for a period of one month.

The prosecution has miserably failed to comply with Section 50 of the Act. No step was taken by the Investigating Officer to join the independent witness in the investigation. The accused was having right to be told in respect of his legal rights to be searched before the Gazetted Officer or Magistrate. The alleged confidence reposed by the accused in the Investigating Officer was not sufficient to presume that, valid offer was given by the Investigating Officer to the accused in terms of his rights to be searched before the Gazetted Officer or Magistrate. The documents prepared by the police in terms of Exs. PA, PB and PC would show that FIR under Section 22 of the NDPS Act, finds mentioned at the top of these documents, which are suggestive of the fact that these documents were prepared only after registration of the case. However, these documents ought to have been prepared before the registration of the case at the time of alleged arrest, recovery and seizure of the contraband.

In State of Rajasthan Vs. Parmanand and another, the Hon'ble Apex Court held that, in the absence of such clear, unambiguous and individual communication, search was vitiated even if, the accused opted and reposed faith in the Investigating Officer to conduct search. Hon'ble Apex Court after relying upon decision in Paramjit Singh and another Vs. State of Punjab, observed that on personal search of the accused, he must be apprised of his individual right to be searched before the Magistrate or Gazetted Officer. Compliance of Section 50 of the NDPS Act is mandatory from the stage when the Investigating Officer came to know that the accused was carrying some contraband.

The accused was required to be searched in the presence of the independent officer. The officer who had conducted the search of the accused was only a member of raiding party and such reposition of faith by the accused would be in contravention of the spirit of Section 50(1) of the NDPS Act. As per prosecution case, representative samples were not drawn in the presence of the Magistrate and said omission has gone against the spirit of Section 52-A of the NDPS Act. Principle of fair and impartial investigation should have been adhered to by the prosecution. The person effecting search and seizure, proceeded to investigate the offence at a later stage. The said officer was not competent to investigate the offence being Judge of his own cause.

The occurrence took place on 19th September, 2013. As per FSL report, the sample was received in the laboratory on 30th September, 2013. According to the instructions/notification No. 1/88 issued by the Narcotics Control Bureau, the samples were required to be sent to the FSL within 72 hours. The prosecution case is found to be doubtful in the context of complicity of the Appellant for the offence alleged against him. The Appellant has already completed the requisite sentence. The Appellant acquitted from the charges levelled against him. Appeal is accordingly allowed. Impugned judgment of conviction and order of sentence passed by Special Court Judge is set aside.

Relevant

State of Rajasthan Vs. Parmanand and another, MANU/SC/0158/2014
: 2014 (2) RCR (Criminal) 40, Paramjit Singh and another Vs. State of Punjab, MANU/SC/0376/1997
: 1997 (1) RCR (Criminal) 293

Tags : Search Investigation Validity

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High Court of Patna

Cosmos Beverages Pvt. Ltd. and Ors. Vs. The State of Bihar and Ors.

MANU/BH/0795/2018

27.03.2018

Excise

Principle of alternative remedy is a rule of convenience and not a rule of law

The Writ Petitioners have moved present court in its extraordinary writ jurisdiction for setting aside the order passed by the Excise Commissioner. By the impugned order, the Excise Commissioner, has rejected the appeal preferred by the Petitioners for release of 550 Cartoons (4842.00 liters) of Mac Dowell No. 1 whisky as per seizure list dated 6th May, 2016 with the Truck bearing number WB-51A/7310 which has been confiscated under Section 58(2) of Bihar Prohibition and Excise Act, 2016 and thereby he refused to interfere with the confiscation order passed by the Collector in Excise Case No. 08/2016-17.

The genuineness of the documents in form of Invoice and the copies of the consignment notes issued in the name of the Petitioner No. 2 by Petitioner No. 1 are not in dispute and they are found to be genuine. Copy of the transport pass for the transport of duty free or duty paid packaged foreign liquor and Lorry Challan showing the vehicle no. are all genuine documents. In the counter affidavit/supplementary counter affidavit, the Respondent No. 3 has admitted that during verification, the report of Government of West Bengal, Excise Department has also been found to be correct. The Respondent admits that, the number of export and import permit was mentioned in the said Invoice. If the Invoice has mentioned the Export and Import permit numbers and the said Invoice has been found to be correct, confiscation of the goods and vehicle only for not carrying the valid excise import and export pass even though the Petitioners were carrying transport pass along with consignment cannot be said to be proper exercise of power by the Collector-cum-District Magistrate.

According to Section 56 of the Prohibition Act, 2016, whenever an offence has been committed which is punishable under this Act, the things mentioned under Clause (a), (b), (c), (d) and (e) are liable to be confiscated. It is not the case of the Respondent No. 3 that, the 550 Cartoons which were seized along with the Truck in question are the things in respect of which an offence has been committed. The stand in the counter affidavit is that, the Transporter was not carrying the copy of the valid export/import permit and it was not digitally locked but there is no denial of the fact that the Invoice which are part of the records duly mentioned the export/import permit number and in course of confiscation proceeding, the District Magistrate-Cum-Collector has not held that, the said import permit number and export permit number are falsely and wrongly recorded.

The discrepancy found in the total bulk liters recorded in the invoice and the seizure list has been made another ground for confiscation of the entire consignment which cannot be approved. So far as the materials which have been seized and confiscated are concerned, those are very much covered under the Invoice and the transport pass and in case any short fall has been found in the quantity mentioned in the Invoice and that of the seizure list, the same may be a matter to be considered separately to find out whether the short fall has occasioned due to any criminal intent, as alleged by the Respondent No. 3, but the consignment which has been seized and confiscated in the present case, in the opinion of present Court have been wrongly confiscated, if not seized on the ground of shortage of quantity in the seizure list.

It is not the case of Respondent No. 3 that the vehicle was found loaded with more quantity of IMFL than the quantity mentioned in the Invoice and the transport pass rather it is a case where the quantity loaded on the Truck was a little less than the quantity mentioned in the Invoice. In the facts of the present case, it cannot be said that liquor were being unlawfully transported or sold.

There is force in submission for the Petitioners, in case the vehicle plying on the National Highway en route to West Bengal via the territories of the State of Bihar was required to be digitally locked and that facility was available at Farig Gola Check Post then, it was the concerned authorities of the State of Bihar to provide the digital lock otherwise in absence of any prima facie proof of fact that, the Petitioners had entered in any illegal transaction of sale of liquor inside the State territory the vehicle and the entire consignment in question cannot be allowed to be confiscated.

Regarding submission of the learned counsel regarding the alternative remedy is concerned, Court is of view that, the Petitioners had availed the right of first appeal before the Commissioner of Excise and then finding that both the authorities have taken a perversed view in complete violation of law moved present court in its writ jurisdiction rather than preferring a second appeal before the State Government. It is well settled that principle of alternative remedy is a rule of convenience and not a rule of law. In an appropriate case, this Court in exercise of its' extraordinary writ jurisdiction under Article 226 of the Constitution of India may be inclined to entertain a writ application without relegating the Petitioners back to the statutory remedy. Both the impugned orders are set aside and the writ application is allowed. The Respondents are directed to release the truck as well as the 550 Cartoons of whisky which was the subject matter of confiscation within a period of one week from the date of receipt/production of a copy of this order.

Tags : Confiscation Validity Remedy

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High Court of Jammu and Kashmir

Fayaz Ahmad Najar Vs. Feroz Ahmad Najar and Ors.

MANU/JK/0234/2018

26.03.2018

Civil

Supervisory jurisdiction would be exercised only in a case where order has been passed in flagrant violation of principles of natural justice or if same will result in miscarriage of justice

In instant petition filed under Section 104 of Constitution of Jammu and Kashmir read with Article 227 of Constitution of India, the Petitioner has assailed the validity of the order passed by the trial court by which the trial court has granted leave to the Defendants to defend the suit filed by the Petitioner under Order 37 Code of Civil Procedure, 1908 (CPC).

The Petitioner filed a suit under the provisions of Order 37 of the CPC for recovery of amount of Rs. 5.30 lakh against the Respondents. The claim under the suit was based on a cheque dated 10th November, 2013 as well as a promissory note dated 20th August, 2013 issued allegedly by the Respondents. The Respondents filed application seeking to defend the suit. The aforesaid prayer was opposed by the Petitioner. The trial court vide impugned order has allowed the application and granted leave to the Defendants to defend the suit.

The Supreme Court in the case of Shalini Shyam Shetty v. Rajendra Shankar Patil while dealing with the supervisory jurisdiction of the High Courts has held that, the High Court in exercise of supervisory jurisdiction would not entertain an order passed by the trial court even if the order is illegal. The court will exercise supervisory jurisdiction only in a case where the order has been passed in flagrant violation of principles of natural justice or if the same is allowed the same will result in miscarriage of justice.

The order passed by the trial court neither suffers from legal infirmity nor is there any error on the face of the record. In case the order is allowed to stand it will not cause an irreparable prejudice to the petitioner. Therefore, no case for invoking the supervisory jurisdiction of this court is made out. The High Court dismissed the petition.

Tags : Amount Recovery Supervisory jurisdiction Invoking of

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Supreme Court

Avinash C. and Ors. Vs. State of Karnataka and Ors.

MANU/SC/0329/2018

04.04.2018

Education

If selection is found to be tainted in any manner, it is always open to concerned authority to annul such selection to maintain purity of selection process

Present matter arises out of Selection conducted by the Karnataka Public Service Commission ("KPSC") pursuant to Notification dated 3rd November, 2011 for filling up 362 posts of the Group 'A' and Group 'D' in the State of Karnataka. Examinations were conducted on 22nd April, 2012. Written tests for mains were conducted. Interviews were held.

There were complaints of mal-practices and irregularities in the conduct of examinations as well as the interviews. It was alleged that, there were demands of bribes from candidates. The FIR was lodged against Chairman, Member and some officials of the KPSC. On receipt of the interim report of CID dated 10th September, 2013, the State Government on 15th December, 2013 directed annulment of evaluation of written examination as well as the personality test. The KPSC however, published the select list. The State Government withdrew the requisition for appointments on 14th August, 2014.

The above order was challenged by the successful candidates before the Karnataka Administrative Tribunal. The Tribunal vide order quashed the decision of the State Government and directed appointment of the selected candidates. Some selected candidates have been given appointments. The order of the Tribunal was challenged before the High Court. The High Court by the impugned order set aside the order of the Tribunal. The High Court observed that appointment of ineligible, inefficient or persons of questionable integrity has serious adverse impact on working of the Government and is anathema to the Rule of law. Best selection to Government service was the mandate of the Constitution. No right accrued to candidates merely by being in the select list. Thus, the Tribunal was in error in directing appointment of persons validity of whose selection was seriously doubted by the Government.

The High Court has referred to material on record in the form of call details between candidates and members of the KPSC. All the members who interviewed the candidates awarded exactly the same marks to particular candidates. There was no objective assessment by individual members. There appeared to be extraneous reasons in awarding the marks. 566 candidates were awarded same marks which appeared to be pre-determined. Digital video recorder in the KPSC building was replaced to destroy evidence. In this view of the matter, there is no ground to interfere with the view of the High Court that, the selection could not have been sustained.

If the selection is found to be tainted in any manner, it is always open to the concerned authority to annul such selection to maintain purity of the selection process. It may not always be necessary to segregate tainted and untainted candidates when the process itself is tainted. Moreover, at pre-appointment stage, decision to cancel the selection process can be interfered only if it is patently arbitrary, malafide or illegal. In the present case, the High Court has rightly applied the parameters and found no case for interference with the decision to annul the selection.

It is submitted that, the written examination is not vitiated by any irregularity and the same can be sustained. Interviews can be held again. Since the contention does not appear to have been raised before the High Court, the Apex Court permitted this contention to be now raised by either of the parties by moving the High Court within two weeks. If such an application is moved, the High Court may examine the same on merits. If the High Court finds that, the written examination is free from any blemish, the High Court may consider restoration of the result of the written examination and further selection process to be conducted. It will also be open to the High Court to direct re-evaluation of scripts of all the candidates or to sustain the cancellation of result of the written examination so that fresh selection can be held. The appeals are disposed of.

Tags : Selection Annulment Validity

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