25 March 2019


Judgments

Supreme Court

Nandlal Vs. The State of Maharashtra

MANU/SC/0388/2019

15.03.2019

Criminal

Benefit of Exception 4 to Section 300 of IPC is available only when act is committed without premeditation in a sudden fight in heat of passion

Present appeal arises out of the judgment passed by the High Court by which the High Court affirmed the conviction of the Appellant under Section 302 Indian Penal Code, 1860 (IPC) read with Section 34 of IPC and the sentence of life imprisonment imposed upon him. By the same judgment, the High Court acquitted Accused No. 2 and 3-Parshuram and his son-Sanjay respectively.

The High Court held that, only the Appellant caused fatal injuries to the deceased with lethal weapon and the High Court affirmed the conviction of the Appellant and the sentence of life imprisonment imposed upon him. High Court acquitted Accused No. 2 and 3 holding that, Accused No. 2 and 3 came along with the Appellant to the place of occurrence only in the later part of the incident and that there was no common intention to commit murder of the deceased. The only point falling for consideration is whether the Appellant-Accused has made out a case for modification of his conviction under Section 304 Part II of IPC instead of Section 302 of IPC.

In order to bring the case within Exception 4 to Section 300 of IPC, the following conditions enumerated therein must be satisfied: (i) The act must be committed without premeditation in a sudden fight in the heat of passion; (ii) upon a sudden quarrel; (iii) without the offender's having taken undue advantage; and (iv) the Accused had not acted in a cruel or unusual manner.

Even if the fight is unpremeditated and sudden, if the weapon or manner of retaliation is disproportionate to the offence and if the Accused had taken the undue advantage of the deceased, the Accused cannot be protected under Exception 4 to Section 300 of IPC.

The incident was in a sudden quarrel and there was no premeditation. One of the conditions of Exception 4 is that, the offender ought not to have taken the "undue advantage" or acted in a cruel or unusual manner. The Appellant inflicted a single blow injury with gupti on the left armpit which pierced through the upper end of the left arm and then entered the chest causing fracture of fourth rib and reached till the lung causing rupture of left lung vasculature. Though, the gupti was a dangerous weapon, the Appellant-Accused caused a single injury which pierced into the lung. Having sustained a stick blow from Gopichand-PW-1, in the sudden quarrel and in the heat of passion, the Appellant inflicted the injury on deceased. Considering the facts and circumstances of the case, the case falls within Exception 4 to Section 300 of IPC. The conviction of the Appellant-Accused under Section 302 of IPC is liable to be modified as Section 304 Part II IPC. Appeal is partly allowed.

Tags : Conviction Sentence Legality

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Supreme Court

P. Subramaniyam Vs. Union of India (UOI) and Ors.

MANU/SC/0385/2019

15.03.2019

Service

It was for employee to know rule, Department is not expected to advise employee about how seniority will be fixed or about the rota-quota rule

In instant case, Respondent No. 4 approached the Central Administrative Tribunal, by way of Original Application. It was the case on behalf of Respondent No. 4 before the learned Tribunal that, as he was selected for the appointment on the post of Chargeman Grade-II against the LDCE quota also and as he being more meritorious than the Appellant, and that if he would have been told with respect to the rota-quota Rule and would have been told that a direct recruitee shall be placed below the LDCE promotee and below the promotee who has been promoted in LDCE quota, in that case, he would have opted for the appointment against LDCE quota. It was the case on behalf of Respondent No. 4 that he made a representation which ought to have been considered favourably.

However, by the judgment and order, the Tribunal allowed the said O.A. by observing that as an employee Respondent No. 4 was not aware of the quota-rota Rule maintained by the department and also how the seniority list will be fixed between the LDCE appointee and direct recruitee and if he had been told that, as per the quota-rota rule, the LDCE candidate would rank senior even though he was appointed as direct recruitee four months earlier, he would have definitely accepted the promotion through LDCE quota. The learned Tribunal observed that, the department has failed to give proper guidance and advice to one of its employees and therefore he could not be denied of his legitimate right which will have a bearing on his seniority. Consequently, the learned Tribunal directed the department to place the original applicant in the seniority list above the Appellant herein.

The Appellant preferred a writ petition before the High Court. By the impugned judgment and order, the High Court has dismissed the said writ petition and confirmed the order passed by the learned Tribunal. Hence, the original writ Petitioner has preferred the present appeal.

The High Court as well as the learned Tribunal, have committed a grave error in directing to place the original applicant-Respondent No. 4 herein in the seniority list above the Appellant herein. It is an admitted position that, the Appellant herein was promoted to the post of the Chargeman Grade-II in the LDCE quota. It is an admitted position that, as per the rules, the seniority was required to be fixed as per the quota-rota Rule. As per the Rule position in that year the direct recruitee was to be placed below the LDCE quota, since the LDCE selection process was treated as the Fast Track promotion. Respondent No. 4 did not accept his appointment/promotion in LDCE quota though selected and offered and he continued his appointment as a direct recruitee.

It was for the employee to know the rule. The department was not expected to advise and/or tell the employee about how the seniority will be fixed and/or about the rota-quota rule. As observed above, the fact remains that, the Appellant was appointed in the LDCE quota and in the very year, Respondent No. 4 was appointed as a direct recruitee. As per the Rule, position in that year, the direct recruitee was to be placed before the LDCE, therefore, Respondent No. 4 was rightly placed below the Appellant in the seniority list being a direct recruitee. Under the circumstances, both, the High Court as well as the learned Tribunal committed an error in directing to place Respondent No. 4 in the seniority list above the Appellant. Appeal is allowed accordingly and the impugned judgment and order passed by the High Court are set aside.

Tags : Rota-quota Rule Promotion Seniority

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Supreme Court

Meg Raj (Dead) thr. L.Rs. and Ors. Vs. Manphool (Dead) thr. L.Rs. and Ors.

MANU/SC/0380/2019

15.03.2019

Civil

Courts shall have jurisdiction to try all suits of civil nature excepting suits of which their cognizance is either expressly or impliedly barred

In facts of present case, the dispute relates to 4/5th share in the suit land. The suit land was subjected to ceiling proceedings under the Haryana Ceiling on Land Holdings Act, 1972 wherein the Prescribed Authority had passed an order dated 17th October, 1978 in relation to the suit land. This led to filing of two civil suits by two sets of persons claiming interest in the suit land. Plaintiffs sought a declaration that, the order dated 17th October, 1978 passed by the Prescribed Authority under the Act is null and void. The Trial Court, by judgment/decree dismissed the suit as being barred.

By a common impugned order, the High Court dismissed suits giving rise to filing of present appeals by special leave by the Plaintiffs of both the civil suits. The short question involved in the present appeals is whether the High Court was justified in dismissing R.S.A. No. 40/1984 and allowing R.S.A. No. 2712/1987.

The High Court was justified in holding that both the civil suits were barred and thus were not triable by the Civil Court in the light of express bar contained in Section 26 of the Act. Mere perusal of the plaint in both the civil suits would go to show that, the Plaintiffs (Appellants) had challenged therein the legality of the order dated 17th October, 1978 passed by the Prescribed Authority under the Act and prayed that the order dated 17th October, 2018 be declared null and void.

Section 9 of the Code of Civil Procedure, 1908 provides that, the Courts shall have jurisdiction to try all suits of civil nature excepting suits of which their cognizance is either expressly or impliedly barred. Section 26 (b) of the Act clearly bars filing of civil suit to examine the legality of the order passed by the Prescribed Authority under the Act. The Civil Court's jurisdiction is expressly taken away by Section 26(b) of the Act from examining the legality of orders passed under the Act. The remedy of the Plaintiffs in such case lies in filing appeal/revision under Section 18 of the Act against the order of the Prescribed Authority. The High Court was justified in dismissing the Appellants' suits as being barred by virtue of the bar contained in Section 26 of the Act. The appeals are, therefore, dismissed.

Tags : Suit Maintainability Jurisdiction

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Supreme Court

Dauwalal and Ors. Vs. State of Madhya Pradesh

MANU/SC/0377/2019

15.03.2019

Criminal

In a crime committed by an unlawful assembly, every member of unlawful assembly would be guilty of offence, even if he himself had not done actual act

In present matter, First Information Report was lodged with Police Station, District Raipur pursuant to information received at Police Station from Informant Netram. According to the information, the cousin of the Informant named was assaulted fatally. The relevant information had named certain persons to be responsible for the crime from the assembly of 25-30 persons who had gathered outside the house of the deceased.

During the course of investigation, names of 17 persons surfaced as suspects. Those 17 persons including the Appellants were tried for the offences punishable under Sections 147, 148, 323, 342 and 450 of Indian Penal Code as well as under Section 302 read with 149 Indian Penal Code. The Second Additional Sessions Judge, by his judgment found that, the prosecution had established its case completely. All 17 Accused persons were found guilty of the offences with which they were charged.

Criminal Appeal were preferred against the aforesaid conviction and sentence by 10 convicted Accused and 7 convicted Accused respectively in the High Court. By its judgment and order which is presently under appeal, the High Court affirmed the view taken by the Trial Court and dismissed both the appeals.

It is true that, in a crime committed by an unlawful assembly by principle of vicarious liability, every member of the unlawful assembly would be guilty of the offence, even if he himself had not done the actual act. But the facts must indicate with clarity that, such person was in fact a member of the unlawful assembly. The prosecution did not allege that, any of the Appellants had stormed inside the house and had dragged the deceased Parasram. The presence of the Appellant, at best, going by the version of PWs 2 and 4 was outside the house in the street where 25-30 persons had gathered. Out of such gathering, 17 persons were named to be Accused and sent up for trial.

It is crucial to note that PW-2 Netram in his First Information Report had not named any of the Appellants whereas in his statement in Court, the names of the Appellants did occur in his testimony. Even then, he did not attribute any overt act to the Appellants. PW-3 - Urmila also did not name any of the Appellants.

Considering all the factual aspects, it is not established beyond reasonable doubt that the Appellants were guilty of the offences with which they were tried. Benefit of doubt is granted to the Appellants. The appeals are, therefore, allowed and the Appellants are acquitted of all the charges levelled against them.

Tags : Unlawful assembly Conviction Legality

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High Court of Madhya Pradesh

Neeraj Makker and Ors. Vs. The State of Madhya Pradesh and Ors.

MANU/MP/0098/2019

14.03.2019

Criminal

Remedy available under Consumer Protection Act does not debar criminal action

Present petition has been preferred under Section 482 of Code of Criminal Procedure, 1973 (CrPC) for quashment of impugned order whereby the application filed under Section 156 (3) of CrPC by Respondent no. 2 was accepted and directed to Police station to register FIR and submit final report, on the ground that prima facie no cognizable offence is made out from the averment in the application and the impugned order has been passed mechanically without applying judicial mind and the mandatory procedure as laid down by the Apex Court.

In absence of statutory provision, the selling of any goods on higher price is not an offence but if goods is sold on the higher price affixing his price by the seller hiding the engrafted maximum price fixed by the manufacturer or marketing agency, it amount to deceive the purchaser to believe that the MRP is fixed by the manufacturer or marketing company. This act comes in purview of deceiving fraudulently and dishonestly to the purchaser and on account of so deceived the purchaser purchased the goods on the higher price considering that it is the price of manufacturing company while it was very below. Hence, it is amount to cheating.

With regard to provision of Consumer Protection Act, the Apex Court in the judgment of Trans Mediterranean Airways vs. Universal Exports and Another has held, that protection provided under the Consumer Protection Act is in addition to remedies available under other statutes and is not in derogation of any other remedy available under any other law. In the circumstances, it can't be held that because in the Consumer Protection Act, remedy is available, no action can be taken under the criminal law.

So far the procedure part is concerned, an affidavit has been filed with the compliant and necessary document with regard to the alleged transaction has also been filed. Therefore, it cannot be said that learned Magistrate has mechanically without applying his mind directed to register the FIR.

The impugned order cannot be set aside, so far, it is concerned to the Applicant no. 1, however, in connection with the Applicant no. 2, it is not sustainable as there is no averment in the application under Section 156 (3) against the Applicant no. 2. Criminal liability arising out of the action of the applicant no. 1 cannot be fasten on the applicant no. 2 merely on account that, he is owner of the shop, unless there is an averment about his involvement in the criminal act of other co-accused. Accordingly, petition disposed off.

Relevant

Trans Mediterranean Airways vs. Universal Exports and another MANU/SC/1126/2011

Tags : Proceedings Cognizance Quashing of

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High Court of Allahabad

Girand Singh Vs. State of U.P.

MANU/UP/0772/2019

13.03.2019

Criminal

Minor irregularity/omission by Investigation Officer need not necessarily lead to rejection of prosecution version

The present appeal has been preferred against the judgment passed by Addl. Sessions Judge convicting and sentencing the Appellant-Girand under Sections 302 of Indian Penal Code, 1860 (IPC) and to undergo life imprisonment, and under Sections 307 of IPC to undergo 5 years Rigorous imprisonment with a fine of Rs. 2000 and in default of payment of fine, to further undergo 3 months additional imprisonment. All the sentences are ordered to run concurrently. By the impugned judgment, accused-Khoob Singh has been acquitted of the charges extending benefit of doubt.

Learned Counsel for the Appellant argued that, prosecution case is supported only by interested and inimical witnesses; an independent witness-Ram Autar, although present at the place of occurrence, as per the allegation of the FIR, but was not examined; injuries of injured Ganga Sahai have not been explained in the first information report; FIR is belated; neither recovery of weapon has been made, nor blood stained clothes were sent for forensic examination.

It is a settled principle of criminal jurisprudence that, mere delay in lodging the FIR may not prove fatal in all cases. Delay in lodging the FIR cannot be a ground by itself for throwing away the entire prosecution case. The Court has to seek an explanation for delay and check the truthfulness of the version put forward. If the Court is satisfied, then the case of the prosecution cannot fail on this ground alone.

The other argument of Appellant in respect of non dispatching of blood stained clothes for forensic examination, can be termed as laches on the part of investigating officer, but that omission would not affect prosecution case, if the ocular testimony is found credible and cogent, as has been held in Maqbool Vs. State of A.P. Thus, it can safely be held that, minor irregularity/omission by the I.O. need not necessarily lead to rejection of the prosecution version, in the facts and circumstances of the present case.

Further, argument that Ram Autar, an independent eye witness of the occurrence mentioned in the FIR has not been examined is also not tenable because, it is not necessary to produce each and every witness. The Court cannot draw adverse inference only because all the witnesses have not been examined, if the evidence of witnesses produced are trustworthy, the court can rely on the said evidence to convict the accused. This is because it is the quality and not the quantity of evidence that is material. In view of cumulative effect of the evidence, the trial Court was justified in convicting the Appellant in the present case. The appeal has no substance and the same is, accordingly, dismissed.

Relevant

Maqbool @ Zubir @ Shahnawaz and Anr. vs. State of A.P. MANU/SC/0472/2010

Tags : Conviction Evidence Credibility

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