Supreme Court

Sunil Kumar Gupta and Ors. Vs. State of Uttar Pradesh and Ors.

MANU/SC/0283/2019

27.02.2019

Criminal

For summoning an Accused under Section 319 of Cr. PC, it requires much stronger evidence than mere probability of his complicity

Present appeals arise out of the order passed by the High Court by which the High Court has affirmed the order of the trial court summoning the Appellants under Section 319 of Code of Criminal Procedure, 1973 (CrPC) for the offence punishable under Section 302 Indian Penal Code, 1860 (IPC). The Appellants submits that though the names of the Appellants were mentioned in the FIR, subsequently they have been exonerated by the Investigating Officer when the charge sheet was filed and this aspect was not considered by the High Court.

Section 319(1) of Cr. PC empowers the Court to proceed against any person not shown as an Accused if it appears from the evidence that such person has committed any offence for which such person could be tried together along with the Accused. It is fairly well settled that, before the court exercises its jurisdiction in terms of Section 319 of Cr. PC, it must arrive at satisfaction that the evidence adduced by the prosecution, if unrebutted, would lead to conviction of the persons sought to be added as the Accused in the case.

No prima facie case is made out for summoning the Appellants and to proceed against the Appellants for the offence punishable under Section 302 of IPC. PW-1 has neither stated the names of the Appellants nor attributed any overt act. Neither the complaint nor the evidence of witnesses indicates as to the role played by the Appellants in the commission of the offence and which Accused has committed what offence. Under such circumstances, it cannot be said that the prosecution has shown prima facie material for summoning the Accused for the offence punishable under Section 302 of IPC.

Under Section 319 of Cr. PC, a person can be added as an Accused invoking the provisions not only for the same offence for which the Accused is tried but for "any offence"; but that offence shall be such that in respect of which all the Accused could be tried together. Insofar as the demand of dowry and the dowry harassment, there are no particulars given as to the time of demand and what was the nature of demand. The averments in the complaint and the evidence is vague and no specific demand is attributed to any of the Appellants. In such circumstances, there is no justification for summoning the Appellants even under Section 498A of IPC and under Sections 3 and 4 of Dowry Prohibition Act, 1961.

Upon completion of investigation, the Investigating Officer felt that, no offence under Sections 498A, 304-B of IPC and under Sections 3 and 4 of the Dowry Prohibition Act, is made out. As held in the Constitution Bench judgment in Hardeep Singh, for summoning an Accused under Section 319 of Cr. PC, it requires much stronger evidence than mere probability of his complicity which is lacking in the present case. The trial Court and the High Court, has not examined the matter in the light of the well-settled principles. The impugned order of the High Court is set aside and appeals are allowed.

Relevant

Hardeep Singh v. State of Punjab and Ors. MANU/SC/0025/2014

Tags : Summon Proceedings Validity

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Supreme Court

Delhi Transport Corporation Vs. Balwan Singh and Ors.

MANU/SC/0272/2019

26.02.2019

Service

To avail benefit of Pension Rules, an employee must qualify in terms of Rules

The Respondents are all ex-employees of the Appellant/Delhi Transport Corporation (DTC), who availed of the Voluntary Retirement Scheme (VRS). The Respondents have, however, been held disentitled to pension on account of exclusion of period, when they remained absent without authorisation for which period they were held not entitled to salary. In D.T.C. v. Lillu Ram, such exclusion was upheld with the consequence that the ex-employees would not get pensionary benefits, having not completed 10 years of qualifying service. In the present appeal, two Hon'ble Judges of this Court, after examining Lillu Ram's case opined that, a reconsideration by a larger Bench, of that view, was required. As a sequitur, the present appeal has been placed.

No one, including the Respondents can be permitted to plead that, they would be unaware of the Pension Rules, which have a statutory force and whose benefit they seek to avail. In fact, the VRS itself, more specifically Clause (g), makes these very Rules applicable. Rule 21 Central Civil Services (Pension) Rules, 1972 is clear in its terms, i.e., "all leave during service for which leave salary is payable" would count. The corollary is that, if an employee is not paid for leave, that period has to be excluded from the period to be counted for admissibility of pension.

Rule 3(1)(q), while defining "qualifying service" provides for service rendered while on duty "or otherwise which shall be taken into account for the purpose of pensions and gratuities admissible under these rules." Thus, the period of leave for which salary is payable would be taken into account for determining the pensionable service, while the period for which leave salary is not payable would be excluded. The Rule is crystal clear and does not brook any two interpretations. It is a well settled principle of interpretation that, when the words of a statute are clear and unambiguous, there cannot be a recourse to any principle of interpretation other than the Rule of literal construction.

In the given facts of the present case, the Respondents were not governed by Rules, but by the Employees Contributory Provident Fund Scheme. The Pension Scheme was sought to be introduced only couple of months before the VRS, and that too was not implemented till 1995. Not only that, it was not implemented through the LIC but ultimately by the Appellant-Corporation itself, much later in 1995. Thus, the occasion for making any entries for this leave period in the service record, in terms of the Rules did not even arise at the stage when the VRS was applied. There may have been some significance to these aspects, if the Pension Rules were already applicable over a period of time and entries had not been made, though, even there, it would not be in supersession of the plain language of the Rule.

To avail of the benefit of Pension Rules, an employee must qualify in terms of the Rules. In the present case, the Respondents unfortunately do not do so, as the period which is sought to be excluded from their qualifying service is one where they have admittedly not been paid leave salary. The qualifying period for the VRS would have to be governed by that Scheme and cannot ipso facto be imported into the entitlement of pension, contrary to the plain wordings of the Pension Rules. If any payments have been made to the Respondents, especially in view of the interim order, the Appellant-Corporation will not claim any refund of such amount already paid . The impugned order is set aside. Appeal allowed.

Relevant

D.T.C. v. Lillu Ram MANU/SC/1701/2011

Tags : Benefit Pension Rules

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Supreme Court

Vinod Jain Vs. Santokba Durlabhji Memorial Hospital and Ors.

MANU/SC/0267/2019

25.02.2019

Consumer

In cases of medical negligence, where a special skill or competence is attributed to a doctor, a doctor need not possess highest expert skill, at risk of being found negligent

The sad demise of the wife of the Appellant has resulted in the legal proceedings being initiated by the Appellant on a belief that, the cause of her death was medical negligence. The State Commission found in favour of the Appellant and directed a compensation of Rs. 15 lakh and costs of Rs. 51,000 to be paid to the Appellant. Aggrieved by the said order of the State Commission, the Respondents preferred an appeal before the NCDRC, which exonerated the Respondents of any medical negligence vide impugned order. It was opined that at the highest, it could be termed as a case of wrong diagnosis and certainly not one of medical negligence.

A doctor cannot be said to be negligent if he is acting in accordance with a practice accepted as proper by a reasonable body of medical men skilled in that particular art, merely because there is a body of such opinion that takes a contrary view. In cases of medical negligence, where a special skill or competence is attributed to a doctor, a doctor need not possess the highest expert skill, at the risk of being found negligent.

The Respondent No. 1-Hospital promptly attended to the wife of the Appellant. Respondent No. 2, physician, once again, attended to her promptly, and started her on antibiotic treatment. In view of fact that the patient was normal, afebrile, well-hydrated and displayed normal vitals, the oral administration of the tablet was prescribed. This, according to the NCDRC was the professional and medical assessment by Respondent No. 2-Doctor, arrived at on the basis of a medical condition of the patient, and could not constitute medical negligence.

Respondent No. 2-Doctor, who was expected to bring a reasonable degree of skill, knowledge and care, based on his assessment of the patient, prescribed oral administration of the antibiotic in that scenario, especially on account of the past medical treatments of the wife of the Appellant, because of which the veins for administration of IV could not be located. Her physical condition was found to be one where the oral administration of the drug was possible.

The approach adopted by the NCDRC cannot be said to be faulty, while dealing with the role of the State Commission, which granted damages on a premise that Respondent No. 2-Doctor could have pursued an alternative mode of treatment. Such a course of action, as a super-appellate medical authority, could not have been performed by the State Commission. There was no evidence to show any unexplained deviation from standard protocol.

The deceased was medically compromised by the reason of her past illnesses. The deceased was admitted to two other hospitals, post her discharge from Respondent No. 1-Hospital. The death had been caused by a multiplicity of factors. In the end, the medical certificate issued for the cause of death by Fortis Escorts Hospital cited septic shock due to multiple organ failure as the immediate cause of death, with her diabetic condition being an antecedent cause, as also the multiple malignancies, post chemotherapy and radiotherapy all contributing to her passing away. Appeal dismissed.

Tags : Medical negligence Compensation Entitlement

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High Court of Delhi

Lupin Limited and Ors. Vs. Union of India and Ors.

MANU/DE/0730/2019

22.02.2019

Law of Medicine

A decision founded on an unclear report without any deliberation is manifestly arbitrary.

The Petitioners have filed the present petitions impugning Notification no. S.O. 4479(E) issued by the Central Government under Section 26A of the Drugs and Cosmetics Act, 1940 whereby the manufacture, sale and distribution of the Fixed Dose Combination (FDC) of "Pioglitazone 30 mg + Metformin 500 mg" has been proscribed by the Central Government. The Petitioner manufactures and markets the FDC comprising of "Pioglitazone 30 mg + Metformin 500 mg" under the brand name of "Gluconorm P 30".

The limited questions that fall for consideration of this Court are whether the Central Government's decision to ban the manufacture, sale and distribution of the FDC in question is based on relevant material and whether the directions of the Supreme Court in Pfizer have been duly complied with.

The notifications issued in exercise of powers under Section 26A of the Act are of general application and the power exercised by the Central Government under Section 26A of the Act is legislative in nature. However, such powers can be exercised only if the Central Government is satisfied that it is necessary in larger public interest and further the specified conditions for exercise of such power - the use is likely to involve risk to human beings or animals or the drugs do not have any therapeutic value - are established. Plainly, the Central Government's satisfaction would be required to be based on the relevant material.

The risk of overdose of one of the drugs constituting a FDC would always exist. If the matter is viewed in the context of titration of drugs constituting an FDC; any variation in the dosage of any drug included in an FDC would result in overdose of the other components. Titration of any component drug in an FDC is not feasible. FDCs by their very definition, include formulations in fixed doses. Since, it is not disputed that Pioglitazone 30 mg and Metformin 500 mg can be prescribed as a second line therapy in Type - II Diabetes, the observation that the FDC in question has no therapeutic justification, cannot be sustained.

If the Sub-committee was of the view that, Pioglitazone in the strength of 30 mg would provide a significant risk of overdose in an FDC, it would have been apposite for all FDCs including Pioglitazone 30 mg as a component to be proscribed. However, since all FDCs, which include Pioglitazone 30 mg have not be proscribed, the reason as provided by Sub-Committee lacks clarity.

The Supreme Court had given a specific direction that in cases where the DTAB/Sub-committee prohibits a particular FDC, it would also give its reasons as to why restricting or recalling the said FDC, would not be sufficient to control the manufacture and use of that FDC. In the present case, the Subcommittee had highlighted a risk of overdose, however, it did not indicate in its report as to why restricting or regulating its manufacture or use, would not suffice. Thus, the report submitted by Subcommittee also is not in conformity with the directions issued by the Supreme Court in Pfizer Limited. Concededly, the Central Government has based its decision solely on the report of the Subcommittee. A decision founded on an unclear report without any deliberation is manifestly arbitrary.

The impugned notification cannot be sustained. The same is set aside. The matter is remanded to DTAB/Subcommittee constituted by it to examine the issue regarding the FDC in question in accordance with the directions issued by the Supreme Court in Pfizer Ltd. The DTAB/Sub-committee shall submit a report to the Central Government. The Central Government may take an informed decision whether to proscribe, restrict, or approve the said FDC.

Relevant

Union of India (UOI) and Ors. vs. Pfizer Limited and Ors. MANU/SC/1611/2017

Tags : Notification Manufacture Ban

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High Court of Delhi

Onyx Therapeutics, Inc. Vs. Union of India and Ors.

MANU/DE/0728/2019

22.02.2019

Intellectual Property Rights

If law provides for a particular manner in which a particular thing is to be done, it should be done in that way only and none other

The present petitions is preferred for quashing the impugned orders passed by the Respondent No. 2 and restore the order dated April 10, 2017. Consequently, enable the Petitioner to cross-examine Dr. Surajit Sinha and Dr. Prachi Tiwari prior to a final hearing on merits in the Section 25(2), Patents Act proceeding initiated by the Respondent No. 3 against Patent No. 255964. Further, seeks direction thereby directing the Respondent No. 2 to pass an order on the Petitioner's objections/reply dated 5th June, 2015 to taking on record the additional testimony of Dr. Prachi Tiwari as filed by the Respondent No. 3 on 17th April, 2015, prior to any final hearing on merits in the Section 25(2), Patents Act, proceeding initiated by the Respondent No. 3 against Patent No. 255964.

In case of Financial Times Ltd., it has been recorded that since the affidavits are required to contain only the facts and not opinions expressed, the request for cross-examination is to be sparingly granted. Even in such a case, there is no absolute bar for cross-examinations. Likewise, in case of Swastick Pipes Ltd., it has been held that, under the Trade Mark Act, there is no exclusive and vested right to cross-examine a deponent.

In contrast, under the Act, Section 79 categorically grants the discretion to the Respondent No. 2 to permit the parties to cross-examine the witnesses. The present case is highly technical in nature, wherein the expert witness of the respondent No. 3 has provided his/her view/opinions/analysis of different prior art documents/literature relied upon him/her to opine that the invention claimed under the Petitioner's patent is not novel and is obvious in light of the prior art. Such technical analysis conducted by the expert witness(es) and his opinion thereto, cannot constitute facts per se. Therefore, in such cases wherein the request of cross-examination is prayed for, the same ought to be granted.

In the present case, the Petitioner has challenged the validity of the analyses of the said witnesses at the very outset, and thereafter at every opportunity provided to it under law. Therefore, in a proceeding where in the facts and circumstances of the case the credibility of the witnesses is in question or in doubt or its statement is in dispute, the denial of an opportunity for cross-examination shall amount to violation of principles of natural justice and vitiate the entire proceeding.

Vide emails, while relying on Section 79, the Respondent No. 2 had exercised its discretion and held that, cross-examination of witnesses of Respondent No. 3 was required. Once the Respondent No. 2 had conclusively held that, cross-examination was required, the respondent No. 2 could not have, in the absence of any new documents/developments/evidence suggesting so, formed a completely opposite prima facie view that it was not required. It is a settled position in law that, if the law provides for a particular manner in which a particular thing is to be done, it should be done in that way only and none other. Admittedly, in the present case, no application was filed by the Respondent No. 3 for review of said orders, and thus, the action of the Respondent No. 2 in reviewing its own decision suo moto, is without jurisdiction and a manifest error of law,.

Respondent no. 2 shall allow the Petitioner to cross examine the two expert witnesses of Respondent no. 3, but after the Petitioner filed affidavits of experts by controverting the opinion of expert witnesses of respondent no. 3. Respondent no. 2 shall also give right of cross examination, if sought by Respondent no. 3, to cross examine the expert witness(es) of the petitioner. Writ petition is allowed.

Relevant

Swastick Pipes Ltd. vs. T.T. Industries and Ors. MANU/DE/1058/1999
; The Financial Times Ltd. and Ors. vs. The Times Publishing House Ltd. and Ors. MANU/DE/2751/2016

Tags : Cross examination Right Expert witnesses

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High Court of Kerala

State of Kerala and Ors. Vs. Ramadas and Ors.

MANU/KE/0452/2019

22.02.2019

Criminal

There must be in existence, proximate live link between facts of cruelty in connection with demand of dowry and death in order to attract Section 304B of IPC

Present appeals have been preferred by the State and the father of the victim, challenging the judgment passed by the Special Additional Sessions Judge, by which the accused/Appellants were not found guilty for offences alleged against them and hence, were acquitted of all charges. Question raised in present matter is whether charges were proved by the prosecution to the satisfaction of Court.

It is settled law that, appellate Courts have to restrain themselves from reversing the finding of a trial Judge merely on the ground that another view is possible or that a better view could have been taken. Unless it is shown to the satisfaction of this Court that, the judgment is perverse or that it is unreasonable, interference is not called for in the matter.

When Section 113-B of Evidence Act, 1872 and Section 304B of Indian Penal Code, 1860 (IPC) are read together, it is palpable that there must be material to show that soon before her death, the victim was subjected to cruelty or harassment. Apex Court has laid down in catena of decisions that, 'soon before' is a relative term and it would depend upon circumstance of each case and no straight jacket formula can be laid down as to what would constitute the said period. There must be in existence, proximate live link between the facts of cruelty in connection with demand of dowry and the death. If the alleged incident of cruelty is remote in time and had become stale enough not to disturb mental equilibrium of the women concerned, it would be of no consequence.

The word used is 'shown', not 'proved' in Section 304B IPC. It indicates that, the prosecution can discharge its burden by preponderance of probability. The word 'deemed' used in that Section requires that, an accused has to prove his innocence beyond reasonable doubt. The accused is required to rebut the presumption under Section 113B of the Act by proving his innocence. Thus, where prosecution has shown that 'soon before her death' the deceased was subjected to cruelty or harassment by the husband or in-laws in connection with demand of dowry, the presumption under Section 113B of Act arises and the Court shall presume that such person, who had subjected the women to cruelty or harassment in connection with any demand for dowry, shall be presumed to have caused the dowry death. The presumption that arises in such cases may be rebutted by the accused. Plain reading of Section 304B clearly shows that the death which is talking about could be homicide or suicide. Hence, there is no legal bar in charging the accused with Section 304B and Section 302 of IPC simultaneously.

Evidence adduced by the prosecution would show that, death of deceased was a suicide. The question of homicide does not arise. Prosecution does not even have a case of homicide. Nobody was present in the house at the time of incident except 3rd accused who was taking care of the child of the victim. There is also evidence to the effect that attempts were made to break open the room and water was seen poured over the body of the victim. Hence offence under Section 302 read with Section 34 of IPC crumbles at the very outset.

Prosecution did not discharge its onus of proving specific instances of cruelty or harassment in connection with demand of dowry soon before the death of the victim. It can also be seen that, specific instances of cruelty demanding dowry are not meted out from the evidence of PW 7 to PW 11. Even in matrimonial disputes, specific instances of cruelty is a material aspect. In criminal trial, there cannot be a conviction under Section 304B of IPC unless the above is proved. There are general allegations regarding demand for dowry. When it was made and under what circumstances such demand was made are conspicuously lacking.

The death of deceased occurred after 2 years and 2 months of marriage. Evidence further reveals that, her death was due to burns and it was a suicide. But nothing is shown in evidence to arrive at a conclusion that, the victim was subjected to cruelty in connection with demand for dowry by the accused. Unless the same is proved by the prosecution at least as a probability by preponderance, no offence under Section 304B of IPC is made out and hence no presumption under Section 113B could be raised. The observation by the trial Court that the victim committed suicide because the dowry demanded was not given to her by her parents is not backed by any evidence and hence needs no interference. Appeals dismissed.

Tags : Acquittal Cruelty Proof

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