Supreme Court

State of Madhya Pradesh Vs. Kalicharan and Ors.

MANU/SC/0800/2019

31.05.2019

Criminal

Accused can be held guilty for offence of murder even on a single blow on vital part of victim’s body causing his death

Present appeal is against impugned judgment passed by the High Court whereby the High Court has partly allowed the said appeal preferred by the original Accused and set aside the judgment and order of conviction and sentence passed by the learned Trial Court. The learned Trial Court convicted the Respondent-original Accused for commission of the offence under Sections 148, 302/149, 325/149, 323/149 of the Indian Penal Code, 1860.

The impugned judgment and order passed by the High Court, insofar as Accused Kalicharan, Amar Singh, Kedar, Abhilakh, Ramgopal, Tejsingh, Gangaram and Vedari are concerned, is not required to be interfered with. In the facts and circumstances of the case and considering the fact that, there was a free fight and the role attributed to the aforesaid accused, the High Court has rightly acquitted the aforesaid Accused for the offences under Sections 148, 302/149 and 325/149 of IPC. The same is absolutely in consonance with the decision of this Court in the case of Kanwarlal v. State of M.P. Therefore, the present appeal qua the aforesaid Accused (except the accused-Ramavtar) deserves to be dismissed.

Regarding impugned judgment and order passed by the High Court altering the conviction of the accused-Ramavtar from Sections 302/149 to Section 304 Part II of the IPC is concerned, it is required to be noted that, the fatal blow was caused by the said accused-Ramavtar. The deceased sustained the injury on his head which was caused by the Accused Ramavtar. The said injury caused by the Accused Ramavtar was on the vital part of the body i.e. head and proved to be fatal. Merely because the Accused Ramavtar caused the injury on the head by the blunt side of Farsa, the High Court is not justified in altering the conviction to Section 304 Part II of the IPC.

As held by this Court in catena of decisions, even in a case of a single blow, but on the vital part of the body, the case may fall under Section 302 of the IPC and the Accused can be held guilty for the offence under Section 302 of the IPC.

However, in the facts and circumstances of the case, more particularly that, it was a case of free fight, considering the fact that the weapon used by the Accused Ramavtar was Farsa and he caused the injury on the vital part of the body i.e. head which proved to be fatal, in the facts and circumstances of the case, the High Court has committed a grave error in altering the conviction of the Accused Ramavtar from Sections 302/149 of the IPC to Section 304 Part II of the IPC.

In the facts and circumstances of the case and considering the evidence on record, more particularly, the medical evidence and the manner in which the incident took place, the Accused Ramavtar should have been held guilty for the offence under Section 304 Part I of the IPC. To that extent, the impugned judgment and order passed by the High Court deserves to be quashed and set aside. The conviction of the Accused Ramavtar is to be altered from Section 304 Part II to Section 304 Part I of the IPC.

Tags : Sentence Alteration Legality

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Central Information Commission

Jitendra Pratap Singh Vs. CPIO, Under Secretary (Ad. V), Ministry of Finance Department of Revenue

MANU/CI/0250/2019

30.05.2019

Right to Information

No specific exemption is codified which allowed non-disclosure of information on basis that the matter on which information is sought is sub-judice

In facts of present case, the CPIO, vide its letter stated that as per the advice of the CVC, a prosecution sanction order issued against the Appellant vide order and sent to CBI for further necessary action at their end. However, it was intimated that most of the documents in the said prosecution file were pertaining to the CBI documents and as per Sub-Section (2) of Section 24 of the Right to Information Act, 2005, (RTI Act, 2005) CBI had been exempted to provide the information. Dissatisfied by the response of the CPIO, the Appellant approached the Appellate Authority. The Appellate Authority, vide its order while concurring with the response of the CPIO, denied disclosure of information under Section 8 (1) (j) and (h) of the RTI Act, 2005.

Hon'ble Supreme Court in case of CBSE Vs. Aditya Bandopadhyay held that, "It is also not required to provide 'advice' or 'opinion' to an applicant, nor required to obtain and furnish any 'opinion' or 'advice' to an applicant. The reference to 'opinion' or 'advice' in the definition of 'information' in Section 2(f) of the Act, only refers to such material available in the records of the public authority. Many public authorities have, as a public relation exercise, provide advice, guidance and opinion to the citizens. But that is purely voluntary and should not be confused with any obligation under the RTI Act."

Moreover, it was observed that as per the provisions of Section 8 (1) of the RTI Act, 2005, no specific exemption is codified which allowed non-disclosure of information on the ground that the matter on which information is sought is sub-judice. In the decision of the High Court in Municipal Corporation of Delhi v. R.K. Jain it is observed that, the matter being sub judice before a court is not one of the categories of information which is exempt from disclosure under any of the clauses of Section 8(1) of the RTI Act.

The Commission in its decision in Mr. Ashu v. CPIO/Sr. Supdt of Posts, Department of Posts had held that, the RTI Act provides no exemption from disclosure requirements of sub-judice matters. The only exemption for sub-judice matters is regarding what has been expressly forbidden disclosure by a court or a tribunal and what may constitute contempt of court.

The Commission directs the First Appellate Authority to re-examine the matter and furnish a suitable reply to the Appellant in accordance with the provisions of the RTI Act, 2005 within a period of 15 days from the date of receipt of this order. The Appeal stands disposed off.

Tags : Information Disclosure Exemption

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High Court of Bombay

Dilip Soma Shetye Vs. The Inspector General of Prisons, Panaji and Ors.

MANU/MH/1221/2019

29.05.2019

Criminal

Redemption and rehabilitation of prisoners for good of society must receive due weightage during incarceration

The challenge in present petition is to the orders passed by the Inspector General of Prisons, Panaji-Goa by which an application for furlough came to be rejected. Perusal of the impugned orders indicates that, the main reason for rejection of furlough is that, the Pernem Police Station furnished a report that in case of release of the prisoner on furlough, there is a possibility of he taking advantage and may not surrender before the jail authority. He may not be traceable also.

Though, the Petitioner is a convict undergoing life imprisonment for an offence punishable under Section 302 of Indian Penal Code, 1860 (IPC), having completed 18 years 4 months and 23 days of imprisonment, his conduct in jail appears to be satisfactory and had last surrendered from parole on 27th November, 2018. There was no complaint of any kind against the Petitioner as regards breach of any of the terms and conditions during his release on parole or furlough. This is a valid consideration for which no sufficient weightage appears to have been attached.

The Provisions in Rule 315 of the Prisons Rules, 2006 will have to be interpreted keeping in mind the objective for which Prisons Rules make provision for grant of furlough. The expression "relative" has not been defined either under the Prisons Act, 1894 or the Goa Prisons Rules, 2006. The expression, will, therefore, have to take its colour from the context as well as the purposes of the enactment.

In Asfaq Vs. State of Rajasthan and others, the Hon'ble Apex Court has held that, the furlough is a brief release from prison. It is conditional and is given in case of long-term imprisonment. The period of sentence spent on furlough by the prisoners need not be undergone by him as is done in the case of parole. Furlough is granted as a good conduct remission. A convict must remain in jail for the period of sentence or for rest of his life in case he is a life convict. It is in this context that, his release from jail for a short period has to be considered as an opportunity afforded to him not only to solve his personal and family problems but also to maintain his links with society.

Convicts too must breathe fresh air for at least some time provided they maintain good conduct consistently during incarceration and show a tendency to reform themselves and become good citizens. Thus, redemption and rehabilitation of such prisoners for good of societies must receive due weightage while they are undergoing sentence of imprisonment. For parole, specific reason is required, whereas furlough is meant for breaking the monotony of imprisonment. Since furlough is not granted for any particular reason, it can be denied in the interest of the society. Accordingly, impugned orders are set aside. The Respondent no. 1 is directed to release the Petitioner on furlough on usual terms and conditions.

Relevant

Asfaq Vs. State of Rajasthan and others MANU/SC/1182/2017

Tags : Furlough Good conduct Grant of

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High Court of Delhi

Kaushal Kishore Vs. State NCT of Delhi

MANU/DE/1818/2019

28.05.2019

Criminal

An acquittal or discharge under Section 306 of IPC would not ipso facto amount to an acquittal or discharge under Section 498A of IPC

In instant case, Petitioner impugns order whereby charge has been framed against the Petitioner under Section 498A of Indian Penal Code, 1860 (IPC). The Petitioner contends that, Charge Sheet was filed both under Section 306 and Section 498A of IPC, however, the Trial Court found insufficient material to proceed under Section 306 of IPC. He submits that, cruelty under Section 498A of IPC is to be of such a nature which is likely to drive a woman to commit suicide or to cause grave injury etc. and as the Trial Court found insufficient material to proceed under section 306 of IPC, on the same analogy, there was insufficient material to even frame a charge under Section 498A of IPC.

The Trial Court was of the view that, the suicide note exonerated the Petitioner and stated that, the deceased was taking the step voluntarily. The Trial Court was of the view that, since the suicide note exonerated the Petitioner, there was insufficient material against him insofar as the offence under Section 306 of IPC was concerned. However, the Trial Court found that, there were specific allegations made in the statements of mother of the deceased and brothers of the deceased that, the Petitioner had maltreated the deceased and committed physical and mental cruelty.

In Ramesh Kumar vs. State of Chhattisgarh, the Supreme Court has further held that, Sections 498A and Section 306 of IPC are independent and constitute different offences. Depending on the facts and circumstances of an individual case, subjecting a woman to cruelty may amount to an offence under Section 498A and may also if a course of conduct amounting to cruelty is established leaving no other option for the woman except to commit suicide, amount to abetment to commit suicide.

In the present case, Trial Court found insufficient material to charge the Petitioner for an offence under Section 306 IPC but after examination of the material on record was of the view that, there is sufficient material to frame a charge under Section 498A of IPC.

An acquittal or discharge under Section 306 of IPC would not ipso facto amount to an acquittal or discharge under Section 498A of IPC. Ingredients of both the Sections are different. Though, there may be an overlap with regard to cruelty being meted out to the deceased in both the Sections, however, the degree of cruelty to constitute abetment under Section 306 of IPC would be of higher than the degree of harassment and cruelty to constitute an offence under Section 498A of IPC. It cannot be held that because Petitioner has been discharged of an offence under Section 306 of IPC, it would automatically lead to a discharge of the offence under Section 498A of IPC.

In the present case, there is sufficient material on record in the form of the statements of the mother as well as the brothers of the deceased, alleging both physical and mental harassment by the petitioner of the deceased. There are specific allegations that, Petitioner had maltreated the deceased and committed physical and mental cruelty on her and even made demands for money to purchase a plot. There is sufficient material on record to give rise to grave suspicion against the petitioner for framing a charge under Section 498A of IPC.

At the stage of framing of charge, the Court is not to look into the probable explanation or defence of the accused but is to examine the material collected by the prosecution at the time of investigation. Explanations with regard to the allegations or the statements of neighbours with regard to their observation of the behaviour of the petitioner with the deceased, relied on by learned counsel for the Petitioner, is material which would be proved by the Petitioner by leading his defence evidence. There is no infirmity in the view taken by the trial Court in framing a charge against the Petitioner for an offence under Section 498A of IPC. The petition is, accordingly, dismissed.

Relevant

Ramesh Kumar vs. State of Chhattisgarh MANU/SC/0654/2001

Tags : Charge Framing of Legality

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High Court of Delhi

Deep Malhotra and Ors. Vs. U.P. Singh and Ors.

MANU/DE/1821/2019

28.05.2019

Civil

Purpose of a review application is limited and it cannot be used as a tool to re-argue what has already been decided

The present Review Petition has been filed by the Petitioner seeking review of the order passed in Contempt Case. The Respondent/DDA submitted that, in view of order dated 24th April, 2019 passed by Commissioner (LD) DDA, the present contempt petition has been rightly disposed of by this Court on 3rd May, 2019 and the present review petition is an abuse of the process of law and sought dismissal of the same.

The scope of a review petition lies in a narrow compass. Order XLVII Rule 1 of Code of Civil Procedure, 1908 (CPC) lays down the parameters of exercising review jurisdiction. The said provision makes it abundantly clear that, the power of a review can be invoked on discovery of new and important matter or evidence, which after exercise of due diligence was not within the knowledge of the party or could not be produced at the time when the judgment was passed or on the ground of some mistake or error apparent on the face of the record or for any other sufficient reason.

In a recent decision in the case of Sasi (D) Through LRs v. Aravindakshan Nair and Others, the Supreme Court has reiterated that "the error has to be self-evident and is not to be found out by a process of reason."

In the case at hand, under the garb of a review application, the Petitioner is actually seeking a re-hearing of the contempt petition that was dismissed on merits on 3rd May, 2019, which is impermissible. The purpose of a review application is fairly limited and it cannot be used as a tool to re-argue what has already been decided. None of the circumstances as contemplated under Order 47 Rule 1 of the CPC have arisen, nor do the grounds raised in the review petition entitle the Petitioner for a review. If the petitioner is aggrieved by the order, he is at the liberty to seek appropriate legal recourse. Accordingly, the review petition is dismissed.

Relevant

Sasi (D) Through LRs v. Aravindakshan Nair and Others, reported as MANU/SC/0265/2017

Tags : Review jurisdiction Power Invocation

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High Court of Himachal Pradesh

Shanti Ram Vs. Kali Dass

MANU/HP/0491/2019

28.05.2019

Civil

Court can make adjudication on admitted facts, while deciding objections in an execution petition

In present case, Respondent-Kali Dass filed a suit for permanent prohibitory and mandatory injunction against present Petitioner. Said suit was decreed by the Court of learned Civil Judge vide judgment and decree. Decree holder filed an application for execution of the said decree. Present Petitioner preferred objections against the same. Learned Executing Court vide order disposed of the objections of the present Petitioner by dismissing them.

The order passed by learned Executing Court has been primarily assailed before present Court on the ground that, it was mandatory for learned Executing Court to have framed Issues on the objections filed and thereafter the parties should have been directed to lead their witnesses and in the absence of said procedure having been followed by learned Executing Court, the impugned order was not sustainable in law.

Though it is correct that as per Section 47 of the Code of Civil Procedure, 1908 (CPC) all questions arising between the parties in the suit in which decree has been passed as also those relating to the execution of the decree in issue are to be determined by the executing Court, but whether or not Issues are to be framed while deciding the objections depends upon the nature and tenor of the objections in the facts of the case. In the present case, in view of the nature and tenor of the objections, it was not incumbent upon the learned executing court to have had framed any Issues. A perusal of the objections demonstrates that, the same were probably filed with the intent to delay the execution.

Before the executing Court is called upon to hold any inquiry upon the objections by framing Issues and by calling upon to lead the evidence, it is incumbent upon the judgment debtor to prima facie demonstrate that, the decree is not executable and for that some legal and valid reasons the executing Court is required to frame Issues and record evidence and thereafter decide the Issue.

In Silverline Forum Pvt. Ltd. Vs. Rajiv Trust and another, Hon'ble Supreme Court has reiterated that, while deciding objections in an execution petition, the adjudication need not necessarily involve a detailed inquiry or collection of evidence and court can make adjudication on admitted facts or even an averment resister. Hon'ble Supreme Court has further held that, the Court can direct the parties to adduce the evidence for such determination if the court deems it necessary.

In present case, in view of the decree passed by learned Court in favour of present Respondent and in the nature of objections which were filed to the execution petition, there was no need for the learned executing Court for having had framed the Issues and learned executing Court was in a position to decide the objections on the basis of the pleadings contained in the objections. Petition dismissed.

Relevant

Silverline Forum Pvt. Ltd. Vs. Rajiv Trust and another, MANU/SC/0252/1998

Tags : Decree Execution Objection

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