Supreme Court

Nagji Odhavji Kumbhar and Ors. Vs. State of Gujarat

MANU/SC/0588/2019

23.04.2019

Criminal

Right of private defence is not available, when assailants are unarmed

The challenge in the present appeal is to an order passed by the High Court maintaining conviction for offences under Sections 302 and 324 of Indian Penal Code, 160 (IPC) against the Appellants. The argument of learned Counsel for the Appellants is that, the deceased and their accomplices, 9 in number, were the aggressors. The injuries have been inflicted on both the Appellants. Such injuries have been proved by Doctor who was posted at Civil Hospital, at the relevant time. The Appellants have received grievous injuries, while protecting the possession of their land, thus, they have acted in their right of private defence.

The Appellants have lodged cross First Information Report. There is no evidence on the part of the Appellants that, the deceased were armed with any weapon in the first version, when they lodged report. The right of private defence is not available, when the alleged assailants are unarmed. The right of private defence is to protect the person and the property. In such right, the person cannot cause more harm than what is necessary for the protection of the person and the property.

What harm can be expected from the hands of the deceased, when they were un-armed, whereas from the testimony of PW-3 and PW-4, the injured witnesses, the Appellants were armed with spears and other weapons. The Post-Mortem report corroborates an oral testimony that both the deceased have received stab wounds. Therefore, the Appellants cannot be said to have acted in the right of their private defence. It has been held in the judgment of this Court in Jangir Singh v. State of Punjab, that in order to succeed in such plea of private defence, it must be proved that the right of private defence extended to cause death.

The deceased had multiple stab wounds on the chest. Since there are multiple wounds, it cannot be said that, the Appellants have acted at the spur of the moment without pre-meditation and that the Appellants are not taken any advantage or acted in a cruel or unusual manner. It is not a case of single injury which one can infer on account of sudden fight. The learned Trial Court as well as the High Court was perfectly justified in law in convicting and sentencing the Appellants for the offence under Section 302 IPC. The criminal appeal is dismissed.

Tags : Conviction Validity Private defence Proof

Share :

Top

Supreme Court

Kumar Ghimirey Vs. The State of Sikkim

MANU/SC/0581/2019

22.04.2019

Criminal

High Court can exercise its revisional jurisdiction to enhance sentence but it is imperative to notify the convict

Present appeal has been filed by the Appellant against the judgment of High Court dismissing Criminal Appeal filed by the Appellant questioning the order of conviction and sentence passed by the Special Judge (POCSO Act, 2012) convicting the Appellant under Section 9/10 of the Protection of Children from Sexual offences Act, 2012 (POCSO Act, 2012), Section 341 of Indian Penal Code, 1860 (IPC). The question involved in present case is whether the High Court erred in enhancing the punishment whereas no appeal was filed for enhancement of the punishment.

As per Section 386 Clause (b) of Code of Criminal Procedure, 1973 (CrPC), in an appeal from a conviction although the Appellate Court can alter the finding, maintaining the sentence, or with or without altering the finding, alter the nature or the extent, of the sentence, but not so as to enhance the same. Under Section 386(b)(iii) of CrPC, in an appeal from a conviction, for enhancement of sentence, the Appellate Court can exercise the power of enhancement. The Appellate Court in an appeal for enhancement, can enhance the sentence also. The proviso to Section 386, further, provides that the sentence shall not be enhanced unless the Accused had an opportunity of showing cause against such enhancement.

Present is a case where the High Court has enhanced the sentence in appeal filed by the Accused challenging his conviction. The High Court can also exercise its power under Section 401 of CrPC in an appropriate case. Section 401 of CrPC provides for the power of revision to the High Court. The High Court under Section 401 of CrPC can exercise any of the powers conferred on a Court of Appeal by Sections 386, 390 and 391 or on a Court of Session by Section 307 of CrPC. The High Court could have very well exercised power under Section 401 of CrPC read with Section 386(b) (iii), could have enhanced the sentence but the said course is permissible only after giving notice of enhancement.

In the case of Sahab Singh and Ors. v. State of Haryana, High Court held that, even if no appeal is filed by the State for enhancement of sentence can exercise suo motu power of revision under Section 397 read with Section 401 of CrPC but before the High Court can exercise its revisional jurisdiction to enhance the sentence, it is imperative that the convict is put on notice.

The submission of the Appellant that, the sentence imposed on the Appellant is excessive is rejected. The learned Special Judge has marshalled the evidence. The victim herself appeared as PW. 1. She was thoroughly cross-examined by the Accused, the evidence of victim has proved, the charge levelled against the Accused which evidence was corroborated by evidence of PW. 6 and PW. 7. The medical evidence also fully corroborated the charge on the Appellant. The High Court has rightly affirmed the finding of the conviction of the Appellant.

The Special Judge after considering the factors imposed the sentence of seven years. The Special Judge has noted that, the offence committed against the minor girl child (7 years) cannot be viewed lightly. The submission of the learned Counsel for the Appellant that the sentence awarded ought to be reduced to five years is rejected.

The direction of the High Court enhancing sentence from seven years to 10 years RI is set aside. The sentence awarded by the Special Judge i.e. seven years under POCSO Act, 2012 and one month under Section 341 of IPC is maintained. The rest of judgment of the High Court is affirmed. The appeal is partly allowed.

Relevant

Sahab Singh and Ors. v. State of Haryana MANU/SC/0224/1990

Tags : Sentence Enhancement Validity

Share :

Top

Supreme Court

State of Rajasthan and Ors. Vs. Mukesh Sharma and Ors.

MANU/SC/0575/2019

22.04.2019

Criminal

Remission after completion of 14 years in custody is not a matter of right, but is dependent on a host of considerations

In present case, each of the Respondents in the respective appeals was convicted under Section 302 of Indian Penal Code, 1860 (IPC) and other provisions of the IPC in different Sessions trials arising from separate unconnected incidents and sentenced to imprisonment for life. They filed individual writ petitions contending that, they had served more than 14 years in custody but their cases were not placed by the Jail Authorities before the State Advisory Boards for shortening of their sentences and premature release.

The constitutional validity of Rule 8(2)(i) of the Rajasthan Prisons (Shortening of Sentences) Rules, 2006, was challenged, putting a fetter on consideration of their cases till they earned a minimum of four years of remission after completing 14 years of actual imprisonment excluding remission, as being contrary to Section 433-A of Code of Criminal Procedure, 1973 (CrPC). Issue in present matter is whether High Court erred in striking down Rule 8(2)(i) of Rules, requiring a minimum of four years remission after completion of 14 years in custody

Section 433-A of CrPC stipulates that, where sentence for imprisonment for life is imposed for an offence for which death is one of the punishments such person shall not be released from prison unless he had served at least fourteen years of imprisonment. Thus, the State in its wisdom could easily provide that life imprisonment shall not be subject to any remission or provide limitations on the same. Remission, in the present case, being a matter of State policy as incorporated in statutory Rules falling within the domain of the State, could not be claimed as a matter of fundamental right.

Part-3 of the Rajasthan Prison Rules, 1951, under the heading Remission System, in Rule 1(e) provides that, the sentence for imprisonment for life or transportation of life shall be deemed to mean imprisonment for 20 years. Rule 2(e) of the Rules 2006, defines shortening of sentence to mean the reduction of that period of sentence of a prisoner which he has to serve in the prison upon a judicially pronounced sentence as a matter of grace on the part of the State and as a recognition of his good behaviour in the prison.

Section 432 of CrPC provides for the power to suspend or remit sentences and also to refuse the same. Section 433 (b) of CrPC provides for commuting a sentence of imprisonment for life to 14 years. Section 433-A of CrPC provides that, remission or commutation shall not enable release of the convict from prison unless the person had served at least 14 years of imprisonment. It, therefore, fixes a minimum period before which remission could not be considered. Any Rule that may provide to consider remission before 14 years would obviously be bad in view of the statutory provision contained in the CrPC.

Remission not being a matter of right, much less upon completion of 14 years of custody, but subject to Rules framed in that regard, including complete denial of the same in specified circumstances, as a matter of State policy, nothing prevents the State from imposing restrictions in the manner done by Rule 8(2)(i) to consider claims for remission.

It is, therefore, held that, the High Court erred in striking down Rule 8(2)(i) of the Rules, 2006 on both counts. The Rule is held to be valid and consistent with the law. The impugned orders of the High Court are set aside and the appeals are allowed.

Tags : Remission Rule Validity

Share :

Top

High Court of Bombay

Sadhana Vs. Hemant

MANU/MH/0689/2019

18.04.2019

Criminal

In absence of domestic relationship between parties as on date of filing of complaint, proceedings under DV Act were not maintainable

The present revision is against the judgment by which the application of the applicant came to be rejected. The said judgment was challenged before the learned Sessions Judge. The said appeal came to be dismissed vide order. The main issue before the Sessions Court as to whether the divorcee can claim relief under the Domestic Violence Act, 2005 (DV Act). Learned Sessions Judge in Criminal Appeal held that, there was no domestic relationship between the parties on the date of filing of the petition and accordingly set aside the order of interim maintenance.

In the case of Harbans Lal Malik v. Payal Malik, Delhi High Court has held that, "it is apparent that in order to make a person as respondent in a petition under Section 12, there must exist a domestic relationship between the respondent and the aggrieved person. If there is no domestic relationship between the aggrieved person and the respondent, the Court of MM cannot pass an order against such a person under the Act."

In the present case, there was no domestic relation on the date of filing of application under the DV Act and, therefore, the applicant/wife is not entitled for any protection under the said Act. The Hon'ble Apex Court in the case of Inderjit Singh Grewal v. State of Punjab and another has observed that, "there is no domestic relationship as husband and wife at the time of filing of petition. Therefore, proceedings under DV Act not maintainable."

In the present case, divorce was granted by the family Court vide order dated 30th June, 2008. Application under DV Act was filed in the year 2009. At the time of filing of application under the DV Act, the applicant was not the wife. There was no domestic relationship between them. Hence, orders passed by the learned JMFC, Nagpur and maintained by Additional Sessions Judge are legal and correct. There is no perversity or illegality in the impugned orders. There is no merit in the revision, accordingly, Criminal Revision Application is dismissed.

Tags : DV Act Application Maintainability

Share :

Top

High Court of Bombay

Sant Kejaji Maharaj Smruti and Shaikshanik Sanstha Vs. Rajendra Deoraoji Raut and Ors.

MANU/MH/0682/2019

18.04.2019

Labour and Industrial

To classify a person employed in an industry as a workman, not only nature of work performed but also terms of appointment in job performed are relevant considerations

The Petitioner-Trust has challenged concurrent orders passed by the Labour Court and Industrial Court by filing the present writ petition. It is claimed that, the relief of reinstatement with continuity of service and back wages granted in favour of Respondent No. 1 deserves to be set aside. The main grievance raised on behalf of the Petitioner-Trust is that, Respondent No. 1, who was working as hostel superintendent for students could not be said to be a workman and that, therefore, the proceedings initiated by Respondent No. 1 under the provisions of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971, before the Labour Court were without jurisdiction.

The crucial test in the present case would be, as to whether the oral and documentary evidence on record demonstrates that, Respondent No. 1 was indeed carrying out supervisory work and that therefore, he could not be classified as a 'workman'.

A perusal of the provisions of the Act of 1971 read with the provisions of the Industrial Disputes Act, 1947 shows that, "workman" means a person, who is doing manual unskilled, skilled, technical, operational, clerical or even supervisory work, but, in case a person employed in a supervisory capacity, if he draws wages exceeding Rs. 10,000 per month and his functions are mainly of a managerial nature, he cannot be classified as a workman.

In the present case, the Petitioner-trust has relied upon documents to show that, the salary paid to Respondent No. 1 at the time of termination of his service was above Rs. 10,000 and further because Respondent No. 1 was clearly doing supervisory work, he did not fit into the definition of "workman".

For determining the question as to whether a person employed in an industry is a workman or not; not only the nature of work performed by him but also the terms of the appointment in the job performed are relevant considerations. Supervision contemplates direction and control. An undue importance need not be given for the designation of an employee, or the name assigned to, the class to which he belongs.

The primary, basic and dominant nature of duties of Respondent No. 1 was not supervisory and it was essentially clerical in nature. Respondent No. 1 could certainly not be said to have a managerial or supervisory role in his service as a hostel superintendent. Hence, the main contention raised on behalf of the petitioner-trust that respondent No. 1 was not a workman and therefore, the impugned orders passed by the Courts below were without jurisdiction, is found to be unsustainable and it is rejected.

A perusal of the order of termination of service clearly shows that, the only reason stated for termination of service of Respondent No. 1 was that, the Petitioner-trust and the intervener had entered into a compromise and that consequently the intervener was required to be reinstated, necessitating termination of service of Respondent No. 1. There is no other ground stated in the order of termination of service and there are no allegations or charges levelled against respondent No. 1. Since this Court has found that, the appointment and approval of respondent No. 1 on the said post of hostel superintendent could not be said to be conditional or contingent, it becomes clear that the order of termination of service was issued by the Petitioner-trust without any justification.

Respondent No. 1 worked continuously with the petitioner-trust as hostel superintendent from the date of his appointment i.e. for a long period of about 15 years. Therefore, no fault can be found with the impugned order of the Labour Court quashing and setting aside the said order of termination of service. The writ petition is dismissed.

Tags : Reinstatement Direction Validity

Share :

Top

Central Information Commission

Subramanian K. Ansari Vs.CPIO, Dy. Commissioner of Income Tax - 9(2)(1)

MANU/CI/0150/2019

18.04.2019

Right to Information

Information is liable to be disclosed when larger public interest of the employees is involved

The Appellant vide his RTI application sought information regarding Cambata Aviation Pvt. Ltd., certified copy of the balance sheet and P/L Account for the last 10 years, whether the IT department had received any correspondence in writing regarding the closure of the aforementioned company, if yes, then certified copies of all the correspondence, till date, etc.

The CPIO, vide its letter while relying on the judgment of the Apex Court in the matter of Girish Ramchandra Deshpande vs. Central Information Commission & Ors. denied disclosure of information under Section 8(1)(j) of the Right To Information Act, 2005 (RTI Act). The Appellant reiterated the contents of the RTI application and stated that the information sought was incorrectly denied to him u/s. 8(1)(j) of the RTI Act, 2005 without considering the larger public interest involved in the matter.

The Commission observed that the matter of disclosure of Income Tax Return of an individual/person is no longer res integra and has been adjudicated by several High Courts and the Hon'ble Supreme Court of India in a series of decisions.

The Hon'ble Supreme Court in Girish Ramchandra Deshpande vs. Central Information Commission & Ors. wherein it was held that, the details disclosed by a person in his income tax returns are "personal information" which stand exempted from disclosure under clause (j) of Section 8(1) of the RTI Act, unless involves a larger public interest and the Central Public Information Officer or the State Public Information Officer or the Appellate Authority is satisfied that the larger public interest justifies the disclosure of such information."

The expression "personal information" as used in clause (j) of Section 8(1) of the RTI Act has to be read in the context of information relating to an individual and that the ordinary usage of the word "personal" is in the context of an individual human being and not a corporate entity.

The details were required by the Appellant in the larger public interest of the employees working in the said Company. The issue of non-payment of salary/wages and other statutory dues to employees was certainly a grave matter which could not be brushed aside especially taking into consideration the turmoil and hardships faced by similar employees of Companies such as Kingfisher Airlines and recently Jet Airways which were once considered as behemoths of the Civil Aviation Sector/Industry in the wake of the losses incurred by such companies.

The Commission cannot be a mute spectator to the pitiable conditions being faced by the employees of the Aviation Company which is seeking shelter under Section 8(1)(j) of the RTI Act. Therefore, considering the sensitivities of the matter as also in the light of the criticality of sustenance issues faced by its employees, the Commission instructs the Respondent to disclose point wise information as held and available with them to the Appellant within a period of 15 days from the date of receipt of this order in the larger public interest. The Appeal stands disposed accordingly.

Tags : Information Disclosure Entitlement

Share :