Supreme Court

Amar Nath Jha Vs. Nand Kishore Singh and Ors.

MANU/SC/0810/2018

03.08.2018

Criminal

Non-conduction of Test Identification Parade may not itself be fatal to prosecution case but it must be weighed in by Court while considering facts and circumstances of each case

The judgment and order passed by the High Court in Death Reference along with Criminal Appeals, whereby the High Court answered the death reference in the negative and set aside the judgment of the Sessions Court convicting the Accused-Nand Kishore Singh and Maheshwar Singh for the offences under Section 396 of Indian Penal Code, 1860 (IPC) is called in question in instant appeals. By the very judgment, the High Court also set aside the conviction of Maheshwar Singh under Section 412 of IPC and Criminal Appeal filed by Mintu Kumar was remanded for consideration by Juvenile Justice Board constituted to deal with juveniles under the provisions of Juvenile Justice (Care & Protection of Children) Act, 2000. Issue raised in present appeal is whether the prosecution was able to prove the case beyond reasonable doubts.

Though, it is a case of the prosecution that the dacoits were armed with a gun, the country made pistol, lathis and bamboos etc., but none of the weapons were recovered from the Accused persons except a piece of dhoti, blouse and nose stud, other articles alleged to have been stolen by the dacoits were not recovered. The Accused-Nand Kishore Singh and Maheshwar Singh were not subjected to T.I.P. The only person who was subjected to T.I.P. was a minor (Mintu Singh). In cases like present one T.I.P. acquires significance and lack of conduction of the same cannot be ignored. It is well settled that non-conduction of T.I.P. may not itself be fatal to the prosecution case but certainly it must be weighed in by the Court while considering the facts and circumstances of each case.

Although, FIR need not be an encyclopedia of the crime, but absence of certain essential facts, which were conspicuously missing in the present FIR, point towards suspicion that the crime itself may be staged. Further, the names of the Respondents were very well known to the family of the first informant as well as the family of the deceased. It has also come on record that there was animosity between these two Accused and the family of the deceased in respect to certain matters. There is every likelihood that the Accused might have been falsely implicated.

It is well settled that, the appellate Courts cannot upset an order of acquittal in a casual manner when there are two possibilities of view which can be taken from the evidences on record. On an entire perusal of the testimonies of the witnesses and other evidences on record, the High Court has reasonably taken its view as the prosecution was not able to explain and prove certain missing links in the alleged offence of dacoity.

The judgment and order of acquittal does not deserve interference as the view taken by the High Court while acquitting the Accused can be said to be a possible view under the facts of the case. The High Court has taken the only view which is possible in the facts and circumstances of the case.

There is no justification to reverse the finding given by the High Court relating to juvenility of Mintu Kumar. On facts, on re-appreciation of the material on record, the High Court concluded that Mintu Kumar @ Mintu Singh was less than 18 years of age. Appeals dismissed.

Tags : Death reference Negation Validity

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High Court of Jammu and Kashmir

Jatinder Kumar and Ors. Vs. Dewan Diwakar Rai and Ors.

MANU/JK/0580/2018

03.08.2018

Property

If document which ought to be produced in Court is not produced at that time, then it cannot be produced later on without leave of Court

The instant Civil Revision Petition filed is against the order passed by the Trial Court. Petitioners are the Defendants in the Suit filed by the Plaintiffs/Respondents, for a decree for mandatory injunction, directing the Defendants/Petitioners to remove the unauthorized construction raised on the suit property and the decree for possession of land. The Petitioners were able get a certified copy of the Report, submitted by the Deputy Commissioner, on the basis of the enquiry made by the then Assistant Commissioner with the Divisional Commissioner, Jammu regarding the land owned by Late Sh. Sain Dass, who is said to have died in 1987/1988.

An application for production of report as evidence, was filed on behalf of Petitioners to which Respondents filed objections. The Trial Court held that the documents should have been filed by the Petitioners under Order 8 Rule 1-A of Code of Civil Procedure, 1908 (CPC) while filing the written statements. They ought to have disclosed the fact that, the document was not in their possession. The authenticity and genuineness of document is doubtful. It is also stated in the instant civil revision petition that the Trial Court has outrightly rejected the document, which is a certified copy issued under Section 76 of the Evidence Act.

As per law, Defendant is required to produce all document/s upon which he relies at the time of filing of written statements in terms of Order VIII Rule 1-A of CPC; In terms of Rule 1-A(3) of Order VIII of CPC, if document which ought to be produced in Court is not produced at that time, then it cannot be produced later on without leave of Court. Order XIII Rule 1 of CPC warrants production of all original documents before issues are framed. Order XIII Rule 2 of CPC warrants production of documents at later stage with permission of Court, if good cause is shown. It has also to be shown that, he was not in possession or in knowledge of said document.

The document sought to be produced is public document obtained from revenue office. It has categorically mentioned that, this document was not in possession of Defendants. Law is clear that, admissibility or relevancy of document/s cannot be seen at the time of granting or refusing permission to produce document/s at belated stage. Court of first instance (Trial Court) is meant to do substantial justice after giving all reasonable opportunities to parties to produce evidence documentary or oral. The only purpose is that, technicalities should not come in way in providing substantial justice; procedural law is handmade justice and cannot be made an obstruction in the court's way to do justice. Whether document in question has bearing effect on the merit case, it can be seen when document is proved as per law. Mere taking on record, it does not mean that document has been proved and Court has relied on it.

The order of Court below is set aside. Present revision petition is allowed. The trial Court is directed to take the document on record; however, it is required to be proved as per law before relying upon it.

Tags : Document Production Admissibility

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High Court of Bombay

Anil N. Naik Gaunekar Vs. State of Goa and Ors.

MANU/MH/2304/2018

01.08.2018

Trusts and Societies

Existence of reasons must be seen in impugned order itself and cannot be supplemented by a subsequent affidavit

The Registrar of Co-operative Societies, exercising power under Section 67A of the Goa Cooperative Societies Act, 2001 appointed two directors to the Board. The Respondent No. 4 from women category. The second was the Respondent No. 5 from SC/ST category. Registrar noted in the order that two members are required to be appointed to fill in the vacancies as it is necessary to have a full-fledged board. He decided to exercise the power to appoint a member suo motu and decided that the notice of the proposed order is not necessary, dispensed with it and proceeded to pass the order on 29th May, 2017. The Petitioner, one of the elected directors, has challenged the order passed on 29th May, 2017 by way of present Petition. The issue is whether the impugned order is a bonafide and lawful exercise of the power.

Generally, unless it is necessary, the Court may not adjudicate on questions of law which may have broader ramifications. Decisions on the constitutional validity of the enactments are to be eschewed if the case can be decided on lesser points. Further, if a provision is challenged as unconstitutional, an attempt should be made to read it down to be in consonance with the constitutional principles. Keeping these positions in mind, we will proceed to consider the controversy.

The power conferred on the Registrar under Section 67A of Act is not for gaining control of the co-operatives, but to take such steps as may be necessary in the larger interest of the co-operatives and the members. The requirement of issuance of notice before issuance of an order is a crucial component of the scheme of Section 67A of Act. Merely because the Legislature has provided for a rare eventuality, where safeguard can be departed from, does not mean that the safeguard can be dispensed with at will. Cogent reasons must exist for doing so.

Thus, there are safeguards in Section 67A of the Act to ensure that it does not empower the Registrar with unguided, arbitrary or draconic powers. It is mandatory to call for objections and suggestions in respect of the proposed order, except where there is an immediate action required or that it is not reasonably practicable to issue such a notice. The proviso relating to dispensation of notice will have to be strictly construed. The grounds mentioned in the second proviso must genuinely exist and cannot be a mere ipse dixit of the authority or that the grounds are artificially created. The order under section 67A of Act must be a speaking order, so that there is transparency and good governance in the exercise of powers by the Registrar.

It is settled position of law, right from the decision of the Constitution Bench rendered in the year 1978 in the case of Mohinder Singh Gill and Anr. vs. The Chief Election Commissioner, New Delhi, existence of reasons must be seen in the impugned order itself and cannot be supplemented by a subsequent affidavit.

Even assuming that there could exist a grave situation where there is no option except to appoint a person who is disqualified, even then there has to be an application of mind and elimination of all possible alternatives as to what would be the consequences of such appointment. The impugned order is bereft of any application of mind to the fact of two directors being disqualified and the necessity to appoint the disqualified members.

The methodology adopted by the Registrar is opposed to the principles of transparency and fairness and is against the principles of democratic governance of the co-operatives. The exercise of power by the Registrar is not for the benefit of the Bank to help it overcome a difficult situation, but it is for the purpose of changing the power dynamics and with the sole object of affecting the democratic functioning. The Legislature has not conferred the power on the Registrar to achieve such an end. The impugned order thus is illegal, ultra vires, a colourable exercise of power and in breach of the mandatory provisions of Section 67A of the Act. Impugned order is quashed and writ petition is allowed.

Relevant

Mohinder Singh Gill and anr., vs. The Chief Election Commissioner, New Delhi and ors. MANU/SC/0209/1977

Tags : Appointment Suo motu power Validity

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High Court of Jammu and Kashmir

Baljit Singh and Ors. Vs. Central Bureau of Investigation and Ors.

MANU/JK/0567/2018

01.08.2018

Criminal

FIR cannot be quashed at the threshold itself without allowing the investigation to proceed

In present petition, the Petitioners crave the indulgence of present Court in quashing the FIR registered against them at Police Station. The complaint pertains to the misappropriation of rice & wheat stocks at PEG (Private Entrepreneur Guarantee) Store, Baramulla, valued at over 14 Crores.

The Petitioners have challenged the FIR, on the grounds that, the Petitioners are proprietors of the sole proprietorship concern against whom the impugned FIR has been registered by the CBI. The proprietorships concerns are not legal entities or juridical persons against whom prosecution can be launched. The proprietorship is doli incapax and thus can neither be prosecuted nor punished under any statute. The inference that can be drawn from the allegations contained in the FIR is that the alleged commission of the breach of trust and misappropriation has taken place beyond the territorial jurisdiction of State of Jammu and Kashmir, that is, in the State of Punjab. Such offences have no territorial nexus vis-à-vis the penal offences provided under Ranbir Penal Code and their prosecution cannot be countenanced within the State of J & K. The FIR has been registered on the basis of a complaint directly transmitted by the Zonal Office Food Corporation of India, Noida, UP, in the absence of a valid sanction.

As per record, a huge amount of money spreading over 14.74 Crores has been misappropriated as a corollary to which the Food Corporation of India is said to have suffered loss in an equivalent amount of money. The Petitioners have challenged the vires of the FIR registered against them on various counts which can be decided and determined on the culmination of the investigation of the case also for who knows what will be the fate of the investigation of the case and in which direction it will land. The allegations levelled against the Petitioners and others including the officers/officials of the FCI as is palpable from the FIR appear to be serious in nature and the mandate of law justifies that the matter should be investigated into its entirety without aborting it midway. It is only after the conclusion of the investigation of the case that a definite opinion can be framed in light of the grounds agitated and urged by the Petitioners in this petition. It will be too early in the day to comment as to which offence is and which is not made out in the case.

The food grains are alleged to have been loaded in Scooters, Tractors, HGV and Motor Cycles. It provides the mode and manner in which the documents have been allegedly fudged and forged to obtain undue pecuniary gains. The investigation of the case cannot be scuttled, stalled and thwarted at this stage of the initial probe in the matter of the embezzlement of a huge amount of money. The FIR in a case like the present one cannot be quashed promptly without allowing the CBI to make an appropriate investigation of the case. The Supreme Court has in a catena of judicial pronouncements held that the FIR cannot be quashed at the threshold itself without allowing the investigation to proceed. Petition dismissed.

Tags : FIR Quashing of Entitlement

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High Court of Kerala

Sanu Vs. Sandeep

MANU/KE/1821/2018

01.08.2018

Family

When a husband abstains from or fails to attempt intercourse with his wife, inference of incapacity is stronger, and onus is on him to rebut the presumption

The Appellant is the wife and the Respondent is the husband. The challenge in this appeal is directed against the order passed by the Family Court, dismissing petition filed by the Appellant for granting of decree that her marriage with the Respondent is null and void. Her plea was that, her marriage with the Respondent was solemnised on 10th April, 2017, but they lived together only for five days and that, the marriage was not consummated because the Respondent had no inclination towards her. The Family Court found that, there is no plea raised by the Appellant that the marriage was not consummated for the reason that, the Respondent was impotent and therefore, the ingredients of Section 12(1)(a) of the Hindu Marriage Act, 1955 were not satisfied.

A party is impotent if his or her mental or physical condition makes consummation of the marriage a practical impossibility. Incapacity for sexual intercourse is an essential ingredient of impotency. Impotency in the law of divorce means incapacity to perform the act of sexual intercourse, that is to say, inability to copulate. Impotency is the lack of ability to perform full and complete sexual intercourse. Such an inability may arise from a variety of causes including mental and physical disability. When a husband abstains from or fails to attempt intercourse with his wife, the inference of incapacity is even stronger, and the onus is on him to rebut that presumption.

Appellant has pleaded and proved that the parties lived together only for a period of five days after the marriage. She has also pleaded and proved that the marriage was not consummated as the respondent had no inclination towards her. Now, the Respondent has admitted that he was impotent qua the Appellant. In these circumstances, it appears that there is sufficient evidence to find that, the marriage between the Appellant and the Respondent was not consummated due to the relative impotency of the respondent. Therefore, a decree for annulment of marriage can be granted in the case.

Normally, an appeal shall be decided by the appellate Court by re-appreciating the evidence adduced by the parties in the trial Court and the appellate Court shall reach an independent conclusion on the basis of such evidence. The parties have been living separately from 15th April, 2017 onwards. It is an admitted fact that there was non-consummation of marriage. Marriage without sex is an anathema. There is no point in prolonging the agony of the parties by remanding the case to the trial Court to give opportunity to the parties to adduce further evidence in the case. It is an admitted position that, the relationship of the Appellant and the Respondent has irretrievably broken down. There is no need to prolong the agony of the parties.

Consequently, appeal allowed and the impugned order passed by the lower court is set aside. The marriage between the Appellant and the Respondent is annulled under Section 12(1)(a) of the Hindu Marriage Act, 1955 by declaring it as null and void.

Tags : Marriage Consummation Divorce Grant

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High Court of Patna

Gauri Devi Vs. Bal Mukund Prasad Gupta

MANU/BH/1562/2018

01.08.2018

Civil

No person has right to enter into Benami transaction, except if, property is purchased in the name of wife or unmarried daughter

In instant case, Opposite Party filed title suit against the Petitioner in respect of disputed land for declaration that the Petitioner is Farzidar and Benamidar of disputed land and also for declaration of his right, title and possession over the suit land. The Petitioner appeared in Title suit and filed petition under Order VII rule 11 read with section 151 of the Code of Civil Procedure, 1908 (CPC) praying therein for rejection of plaint of the aforesaid Title suit on the ground that, the aforesaid title suit is hit by section 4 (2) of the Benami Transactions (Prohibition) Act, 1988.

The aforesaid petition filed under Order VII Rule 11 of CPC was rejected by the concerned Court vide order which was challenged by the Petitioner before present court by filing Civil Revision. However, the aforesaid Civil Revision was, too, dismissed vide order holding that, the question as raised by the Petitioner for rejection of the plaint could not be a ground for passing order under Order VII Rule 11 of CPC and the question could be decided only in course of trial after taking evidence of both parties.

Admittedly, opposite party brought title suit against the Petitioner for declaration that, the Petitioner is Farzidar and benamidar of the disputed property and also for declaration of his right, title and possession over the suit land. The opposite party, specifically, pleaded in the aforesaid Title suit that, the Petitioner is his wife and he had purchased the suit land in the name of the petitioner out of love and to save the suit property from ceiling proceeding.

As per Section 3(2)(a) of the Benami Transactions (Prohibition) Act, 1988, no person has right to enter into Benami transaction except if property is purchased in the name of wife or unmarried daughter. Furthermore, if a purchase is made in the name of wife or unmarried daughter then, in that event, it would be presumed that property has been purchased for the benefit of wife or unmarried daughter unless contrary is proved. Furthermore, no suit, claim or action to enforce any right in respect of Benami property can be made and similarly, no defence based on any right in respect of any property held Benami is permitted.

The Hon'ble Apex Court of the country has already set at rest that the provision of the Benami Transactions (Prohibition) Act, 1988 is perspective in nature and admittedly, in the present case, disputed land was purchased by opposite party in the name of the Petitioner much prior to coming into force of the above stated Benami Transactions (Prohibition) Act, 1988. However, it is specifically, pleaded by opposite party in the plaint that, he had purchased the aforesaid property in the name of his wife (petitioner) out of love and, therefore, unless contrary is proved, it shall be presumed that, opposite party had purchased the suit land in the name of the Petitioner for her benefit and, therefore, it has rightly been observed in the impugned order that, point raised by the Petitioner in her petition filed under Order VII Rule 11 of CPC can only be decided after taking evidence of both parties and, there is no apparent error on the face of the record which requires review of the impugned order. Review petition dismissed.

Tags : Declaration Benami Transactions Right

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