Supreme Court

Sachin Kumar Singhraha Vs. State of Madhya Pradesh

MANU/SC/0352/2019

12.03.2019

Criminal

Benefit of doubt given to an Accused must always be reasonable and not fanciful

In present matter, the First Additional Sessions Judge, vide judgment convicted the Accused/Appellant for the offences punishable under Sections 363, 376(A), 302 and 201(II) of the Indian Penal Code, 1860 (IPC) and Section 5(i)(m) read with Section 6 of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act) and sentenced him to death.

The judgment of the Trial Court was confirmed by the High Court except in respect of the offence under Section 363 of IPC acquitting Accused under Section 363 of IPC. These appeals are presented by the convicted accused.

The circumstances from which the conclusion of guilt is to be drawn must or "should be" and not merely "may be" fully established. The facts so established should be consistent only with the guilt of the accused, they should not be explicable through any other hypothesis except that the Accused was guilty. Moreover, the circumstances should be conclusive in nature. There must be a chain of evidence so complete, so as to not leave any reasonable ground for a conclusion consistent with the innocence of the accused, and must show that in all human probability, the offence was committed by the accused.

The Trial Court as well as the High Court has rightly concluded that, the prosecution has proved its case beyond reasonable doubt for the offence with which the Accused/Appellant was charged. All the circumstances relied upon by the prosecution are proved beyond reasonable doubt and consequently the chain of circumstances is so complete so as to not leave any doubt in the mind of the Court.

Though certain discrepancies in the evidence and procedural lapses have been brought on record, the same would not warrant giving the benefit of doubt to the Accused/Appellant. Justice cannot be made sterile by exaggerated adherence to the Rule of proof, as the benefit of doubt given to an Accused must always be reasonable, and not fanciful.

As has been well settled, life imprisonment is the Rule to which the death penalty is the exception. The death sentence must be imposed only when life imprisonment appears to be an altogether inappropriate punishment, having regard to the relevant facts and circumstances of the crime. As held by present Court in the case of Santosh Kumar Singh v. State through C.B.I., sentencing is a difficult task and often vexes the mind of the Court, but where the option is between life imprisonment and a death sentence, if the Court itself feels some difficulty in awarding one or the other, it is only appropriate that the lesser punishment be awarded.

Accused/Appellant has committed a heinous offence in a premeditated manner, as is indicated by the false pretext given to PW4 to gain custody of the victim. He not only abused the faith reposed in him by the PW4, but also exploited the innocence and helplessness of a child as young as five years of age. At the same time, the probability of reform of the Accused/Appellant is not low, in the absence of prior offending history and keeping in mind his overall conduct.

Therefore, with regard to the totality of the facts and circumstances of the case, the crime in question may not fall under the category of cases where the death sentence is necessarily to be imposed. However, the sentence of life imprisonment simpliciter would be grossly inadequate in the instant case. Accordingly, it is deemed proper to impose a sentence of life imprisonment with a minimum of 25 years' imprisonment (without remission). The imprisonment of about four years as already undergone by the Accused/Appellant shall be set off. The judgment and order of the High Court affirming the conviction of the Accused/Appellant stands confirmed. However, the sentence is modified. The appeals are disposed of accordingly.

Relevant

Santosh Kumar Singh v. State through C.B.I., MANU/SC/0801/2010

Tags : Conviction Sentence Validity

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Supreme Court

Estate Officer, Haryana Urban Development Authority and Ors. Vs. Gopi Chand Atreja

MANU/SC/0355/2019

12.03.2019

Limitation

Failure of a lawyer in taking timely steps, which resulted in causing delay in its filing/refiling, cannot be regarded as a sufficient cause to condone the delay

In the facts of present case, the Respondent filed a civil suit against the Appellants (HUDA) claiming a decree for declaration with consequential relief of permanent and mandatory injunction in relation to the suit land. The suit was decreed by the trial Court. The Appellants (defendants) felt aggrieved and filed first appeal in the Court of Additional District Judge. By judgment, the first Appellate Court dismissed the appeal and affirmed the judgment/decree of the trial Court.

The Appellants felt aggrieved and filed second appeal in the High Court. Since the appeal filed by the Appellant was barred by 1942 days, the Appellants filed an application under Section 5 of the Limitation Act and prayed for condoning the delay in filing the second appeal. By impugned order, the High Court rejected the application and declined to condone the delay. The High Court held that the cause pleaded by the Appellants for condoning the delay is not a sufficient cause. A review petition is also dismissed. The question arises for consideration is whether the High Court was justified in not condoning the delay of 1942 days in filing the second appeal by the Appellants (defendants).

The delay of 1942 days in filing the second appeal in the High Court was rightly not condoned by the High Court for the reasons mentioned below. First, the delay was inordinate; Second it was not properly explained; and third, the ground alleged in support of application filed under Section 5 of the Limitation Act did not constitute a sufficient cause.

The Appellant-HUDA is a statutory authority created under the Haryana Urban Development Authority Act, 1977. It has its well-established legal department to look after the legal cases filed by HUDA and against the HUDA in various Courts. They have panel of lawyers to defend their interest in Courts.

It is not in dispute that the Appellants had been contesting the civil suit and the first appeal since inception. The Appellants were, therefore, fully aware of the adverse orders passed in the first appeal against them. There was, therefore, no justification on their part to keep quiet for such a long time and not to file the appeal within 90 days or/and re-file it immediately after curing the defects. If, according to the Appellants-HUDA, their lawyer did not take timely steps, which resulted in causing delay in its filing/refiling, then, it cannot be regarded as a sufficient cause within the meaning of Section 5 of the Limitation Act, 1963.

It was equally the duty of the Appellants (their legal managers) to see that the appeal be filed in time. If the Appellants noticed that, their lawyer was not taking interest in attending to the brief in question, then they should have immediately engaged some other lawyer to ensure that the appeal be filed in time by another lawyer.

A delay of 1942 days (4 years 6 months), is wholly inordinate and the cause pleaded for its condonation is equally unexplained by the Appellants. In any case, the explanation given does not constitute a sufficient cause within the meaning of Section 5 of the Limitation Act. It was, therefore, rightly not condoned by the High Court and we concur with the finding of the High Court. The appeals are dismissed.

Tags : Delay Condonation Entitlement

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High Court of Chhattisgarh

Parle Agro Pvt. Ltd. and Ors. Vs. Commercial Tax Officer Circle-V, Raipur, (6) Chhattisgarh and Ors.

MANU/CG/0135/2019

08.03.2019

Other Taxes

Items or goods which cannot be fitted into broad entries into schedule of taxing statute are only required to be taken to residuary entry

The Appellants had approached the writ Court by filing Writ Petition. In the said writ application, the taxability of a widely known drink "Frooti" manufactured by the Appellant-Company and its inclusion under Entry 14 of Schedule II of the Chhattisgarh Entry Tax Act, 1976 at the rate of 2% by the Assessing Authority came to be assailed before the learned Single Judge.

An argument was made that "Frooti" being a product of fruit will fall in the Residual Entry of Schedule-II of the Act, 1976 and therefore, liable to be taxed at the rate of 1% and not 2%. The learned Single Judge did examine such submission of the Appellants whether 'Frooti' being a fruit juice would be required to be considered under the Residuary Entry or can be read into Entry 14 of Schedule-II Part I of the Act, 1976. The learned Single Judge, repelled the argument of the Petitioners. Aggrieved by the impugned judgment, the present appeal has been preferred.

Merely because the Legislature did not show fruit juices as a separate Entry or have not mentioned the word 'including fruit juices' in Entry 14 of Schedule-II of the Act, 1976, it does not mean that "Frooti" ceases to be a non-alcoholic drink or a beverage. The Entry existing in the Act, 1976 as it stands today, will also encompass fruit juices like "Frooti" under Entry 14 and it has to be taxed at the rate indicated in the said Entry.

The learned Single Judge has rightly concluded that, only items or goods which cannot be fitted into the broad entries into the schedule of the taxing statute or definition, is required to be taken to the residuary entry. Entry 14 of Schedule-II of the Act, 1976 as it stands today will also include drinks like "Frooti" and it is not required to be taken to the Residuary Entry on the argument that, it is a fruit product.

The Court further records that, any reliance placed on the Fruit Products Order, 1955 would be required to be understood within the ambit and object of such legislation. Since the interpretation is in relation to a taxing statute vis-à-vis an Entry therein, even though other legislations or similar legislations could have shown fruit juices by name in a particular entry, non-mention of the same will in no manner can compel present Court to accept the argument of the Appellants that "Frooti" by virtue of being a fruit product is not required to be treated as a non-alcoholic drink or beverage. No interference is warranted with the impugned order of the learned Single Judge. The appeal is dismissed.

Tags : Product Classification Levy thereof

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High Court of Himachal Pradesh

Rehmat Ali Vs. State of Himachal Pradesh

MANU/HP/0164/2019

08.03.2019

Criminal

Gravity alone cannot be decisive ground to deny bail, rather competing factors are required to be balanced by Court while exercising its discretion

Bail Petitioner has approached present Court in the instant proceedings filed under Section 439 of Code of Criminal Procedure, 1973 (CrPC), praying therein for grant of regular bail in connection with FIR under Sections 20, 25 and 29 of the Narcotic Drugs And Psychotropic Substances Act, 1985 (NDPS Act) and 181 of Motor Vehicles Act, registered at Police station.

Guilt of the bail Petitioner is yet to be proved in accordance with law by leading cogent and convincing evidence and as such, freedom of the bail Petitioner cannot be curtailed for an indefinite period. It is also not in dispute that bail Petitioner is a first offender and local resident of the area, who shall always remain available for investigation as well as trial as and when required by the Investigating Agency.

Careful perusal of Section 37 of the Act, which prohibits the grant of bail to the person found carrying commercial quantity of contraband suggests that, person accused of offence punishable under Sections 19, 24 or 27-A cannot be ordered to be released on bail unless public prosecutrix is given opportunity to oppose the application, if any, made for his release on bail. In the case at hand, neither commercial quantity of contraband, came to be recovered from the conscious possession of the present bail Petitioner or his car nor case, came to be registered against him under Sections 24 or 27-A of the Act and as such, rigors of section 37 are not attracted in the present case.

By now it is well settled that gravity alone cannot be decisive ground to deny bail, rather competing factors are required to be balanced by the court while exercising its discretion. It has been repeatedly held by the Hon'ble Apex Court that object of bail is to secure the appearance of the accused person at his trial by reasonable amount of bail. The object of bail is neither punitive nor preventative.

Normal rule is of bail and not jail. Court has to keep in mind nature of accusations, nature of evidence in support thereof, severity of the punishment which conviction will entail, character of the accused, circumstances which are peculiar to the accused involved in that crime.

In facts and circumstances of cases as well as law laid down by the Hon'ble Apex Court, Petitioner has carved out a case for grant of bail, accordingly, the petition is allowed and the Petitioner is ordered to be enlarged on bail in aforesaid FIR, subject to his furnishing personal bond in the sum of Rs. 5,00,000 with one local surety in the like amount to the satisfaction of concerned Chief Judicial Magistrate/trial Court, with conditions as stipulated.

Tags : Bail Grant Discretion

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High Court of Allahabad

Shakuntala Tyagi Vs. State of U.P. and Ors.

MANU/UP/0717/2019

07.03.2019

Criminal

Order whereby cognizance of offence has been taken by the Magistrate should not be interfered with, unless it is perverse or based on no material

Present application under Section 482 of Code of Criminal Procedure, 1973 (CrPC) has been filed by the Applicant with the request to quash the summoning order passed by learned Judicial Magistrate, and quash the further proceedings of Case Crime under Section 409 of IPC at Police Station in pending in the Court of Judicial Magistrate. The applicant requested to accept the final report dated 22nd February, 2001 submitted by Investigating Officer and stay the entire proceedings in Case Crime under Section 409 of IPC.

Learned Apex Court in Tularam versus Kishore Singh held that, Magistrate can ignore the final report submitted by police including conclusion and take cognizance of case under Section 190(1) of CrPC, on the basis of material collected during investigation and issue process or in the alternative, he may take cognizance of original complaint and examine the complainant and his witness and thereafter issue process to accused, if he is of opinion that case should be proceeded with.

In the present case, Magistrate has passed the order with regard to material collected by Investigating Officer. During investigation, Magistrate clearly stated in his order that, on perusal of C.D, it transpired that complainant supported his version in statement under Section 161 of CrPC. It is wrong to say that, the Magistrate summoned the applicant only on the basis of affidavit. But Magistrate summoned the applicant on the basis of material collected by Investigating Officer during investigation.

In Dr. Nupur Talwar vs. C.B.I. Delhi & another where the Magistrate while rejecting the final report submitted by Investigating Officer had taken cognizance under Section 190(1)(b) of Cr.P.C. It has been held by the Hon'ble Supreme Court that "order whereby cognizance of offence has been taken by the Magistrate should not be interfered with unless it is perverse or based on no material; Superior Court should exercise utmost restraint and caution before interfering with an order of taking cognizance by the Magistrate otherwise the holding of trial will be stalled. Superior Court should maintain this restrain to uphold the rule or law and sustain the faith of the common man in the administration of justice.

In present case, affidavit placed before Magistrate along with protest petition and learned Magistrate find that, final report is liable to be rejected. Magistrate has given proper reason for rejecting the police report and perusing the evidence recorded by police officer in case diary and on the basis of evidence recorded in case diary and perusing the statement on case diary summon the accused. In this regard, approach of the Magistrate is legal. There is no illegality or irregularity in the order passed by learned Magistrate. Learned trial court directed to decide the case expeditiously without unnecessary adjournment. Accordingly, present application under Section 482 is disposed of.

Relevant

Dr. Mrs. Nupur Talwar vs. C.B.I., Delhi and Anr. MANU/SC/0009/2012
, Tularam versus Kishore Singh

Tags : Cognizance Proceedings Final report

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High Court of Kerala

S.S. Biju Vs. Deepa R. and Ors.

MANU/KE/0679/2019

06.03.2019

Family

Court can impose a condition ordering payment of part of decree amount while exercising power under Order IX Rule 13 of CPC

The challenge involved in present appeal is that, the Family Court was not justified in having ordered payment of part of the decree amount, when his liability is yet to be finally determined in the Original Petition. According to learned counsel for the Appellant, Order IX Rule 13 of the Code of Civil Procedure, 1908 (CPC) does not extent to the Court any power to order payment of any portion of the decree amount, other than to impose reasonable cost on the applicant as a condition for setting aside ex parte decree. The only question for consideration, is whether the condition imposed by the court below was harsh, unreasonable or onerous causing prejudice to the Appellant.

Law does not seem to prohibit the Court from imposing a condition ordering payment of part of the decree amount while exercising power under Order IX Rule 13 of the CPC. But the court has to be cautious enough to notice that the condition imposed on the party does not work out to be harsh and onerous to him. So far as this case is concerned, there is no dispute on marital relationship.

The sole ground on which liability for maintenance is disowned is that, the Appellant has been looking after the wife and children even when the litigation against him was pending. When the spousal relationship stands admitted, it naturally follows that the husband-cum-father has undeniable liability to maintain the wife and children under law.

The amount fixed by the impugned orders for payment to the Respondent appears to be quite reasonable. It is very difficult to assume that, the Court below has been harsh nor it imposed a condition which is onerous to the Appellant. The orders therefore, are liable only to be confirmed. In the result, impugned orders are sustained subject to the Appellant making payment of Rs. 50,000 to the Respondents within one month.

Tags : Maintenance Liability Interim Measure

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