Supreme Court

Wasim Vs. State NCT of Delhi

MANU/SC/0923/2019

18.07.2019

Criminal

Wilful conduct which is likely to drive the woman to commit suicide is necessary for conviction under Section 498A of IPC

In facts of present case, FIR was registered on the statement of PW-11, the mother of the deceased. A charge sheet was filed. Later, charges were framed against the Appellant under Section 498A and 304B of the Indian Penal Code, 1860 (IPC). 23 witnesses were examined by the prosecution and several documents relied upon to prove the guilt of the Appellant.

The Trial Court convicted the Appellant under Section 498A and 306 of IPC. The appeal filed by the Appellant was partly allowed by the High Court. The Appellant was acquitted for the offence under Section 306 of IPC. The conviction and sentence under Section 498A of IPC was upheld by the High Court. Hence, present appeal.

Conviction under Section 498A of IPC is for subjecting a woman to cruelty. Cruelty is explained as any wilful conduct which is likely to drive a woman to commit suicide or to cause grave injury or danger to life, limb or health. Harassment of a woman by unlawful demand of dowry also partakes the character of 'Cruelty'. It is clear from a plain reading of Section 498A of IPC that, conviction for an offence under Section 498A of IPC can be for wilful conduct which is likely to drive a woman to commit suicide OR for dowry demand.

Section 306 of IPC provides for punishment with imprisonment that may extend to ten years. There should be clear mens rea to commit the offence for conviction under Section 306 of IPC. It also requires an active act or direct act which led the deceased to commit suicide seeing no option and this act must have been intended to push the deceased into such a position that, he/she committed suicide.

To attract the ingredients of abetment, the intention of the Accused to aid or instigate or abet the deceased to commit suicide is necessary. Any wilful conduct which is likely to drive the woman to commit suicide is sufficient for conviction under Section 498A of IPC. In present case, the High Court recorded a categorical finding that, neither mental nor physical cruelty on the part of the Appellant was proved. Therefore, the conviction under Section 498A of IPC is not for wilful conduct that, drove the deceased to commit suicide. The High Court held that, though there was no demand of dowry soon before the death, the prosecution proved dowry demand by the Appellant immediately after the marriage.

The High Court ought not to have convicted the Appellant under Section 498A of IPC for demand of dowry without a detailed discussion of the evidence on record, especially when the trial Court found that, there is no material on record to show that, there was any demand of dowry. The High Court did not refer to such findings of the Trial Court and record reasons for its disapproval. The judgment of the High Court is set aside. The appeal is allowed.

Tags : Conviction Legality Dowry demand Proof

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Supreme Court

State of Rajasthan Vs. Mahesh Kumar and Ors.

MANU/SC/0915/2019

16.07.2019

Criminal

There must be a complete chain of evidence as not to leave any reasonable ground for a conclusion consistent with innocence of Accused

Present appeals have been filed by the prosecution assailing the judgment of the High Court acquitting the Respondents charged for the offences under Sections 302, 201 read with Section 34 Indian Penal Code, 1860 (IPC). The High Court in its impugned judgment recorded a finding that, the chain of circumstantial evidence produced by the prosecution is very doubtful, contradictory and not reliable at all. It was also observed that, most of the prosecution witnesses were declared hostile and many important and relevant witnesses without any reason has not been produced by the prosecution.

It is well settled that, in the cases of circumstantial evidence, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of guilt of the Accused. The circumstances should be of a conclusive nature and should be such as to exclude every hypothesis but the one proposed to be proved. There must be a complete chain of evidence as not to leave any reasonable ground for a conclusion consistent with the innocence of the Accused. It must be such as to show that within all human probability the act must have been done by the Accused and none else.

The High Court in its impugned judgment has elaborately considered the circumstantial evidence which has been adduced by the prosecution and arrived to the conclusion that many important and relevant witnesses have not been produced by the prosecution.

The prosecution has failed to complete the chain of events leaving any reasonable ground for the conclusion consistent with all human probability that the act must have been done only by the Respondents. There is no error committed by the High Court in arriving conclusion in the impugned judgment. Appeals dismissed.

Tags : Circumstantial evidence Acquittal Legality

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Supreme Court

S. Kumar and Ors. Vs. S. Ramalingam

MANU/SC/0913/2019

16.07.2019

Property

Right to use passage granted in sale deed will not terminate in terms of provisions of Easements Act

In present matter, the Defendants are in appeal aggrieved against the judgment and decree passed by the High Court, whereby judgment and decree passed by the First Appellate Court was not interfered with in the second appeal. The Plaintiff-Respondent filed two suits, firstly, claiming an injunction against the Defendants from using a pathway shown as A B C D in the plaint and claiming exclusive right to use the said path. Another suit was filed restraining the Defendants from preventing the Plaintiff from using the pathway to reach their land E F G H.

The learned trial Court dismissed the suits holding the Defendants have right of necessity of access to their property over the pathway A B C D in the first suit. However, the First Appellate Court allowed the appeal and granted injunction as prayed holding that, there is no necessity of easement as the said Defendant has access from the property of her husband. The High Court has maintained the judgment and decree of the First Appellate Court.

The relationship of Defendant Nos. 1 and 2 will not negate the grant of easement right of passage granted to her in the sale deed only because the recital is generic in nature and usually put by the deed writers. Once the land has been sold with the right of access through the land adjoining the property sold, such right could not be exclusively conferred to the Plaintiff in the sale deed dated May 31, 1988.

Section 48 of the Transfer of Property Act, 1882, provides that, where a person purports to create by transfer at different times rights in or over the same immoveable property, and such rights cannot all exist or be exercised to their full extent together, each later created right shall, in the absence of a special contract or reservation binding the earlier transferees, be subject to the rights previously created. Since the right of access to Defendant No. 2 was reserved in the sale deed dated April 1, 1976, therefore, the vendor could not confer exclusive right to the Plaintiff vide sale deed dated May 31, 1988.

The Plaintiff has to maintain the 16 feet wide passage in any case in terms of the recital in his sale deed dated May 31, 1988. Therefore, if the Defendant No. 2 or her transferees use the passage, then such use of passage by Defendant No. 2 or her transferees cannot be said to be causing any prejudice to the Plaintiff.

The rights of the parties arise out of document of title in the year 1976. Still further, the rights of the parties have to be adjudicated upon as they exist on the date of filing of the suit. The subsequent events of inheritance vesting the property in the same person will not take away the right of the Defendants to use the passage adjacent to their land only because the Defendant No. 2 has gifted part of land to Defendant No. 1 or that after the death of both the Defendants, the common legal proceedings inherited the property.

The Appellants have been granted right to use passage in the sale deed. Thus, it is not easement of necessity being claimed by the Appellants. It is right granted to Defendant No. 2 in the sale deed therefore, such right will not extinguish in terms of Section 41 of the Indian Easements Act, 1882.

In view thereof, the judgment and decree passed by the High Court suffers from manifest error and, thus, cannot be sustained in law. The passage adjoining the property of the Defendants leading to the property of the Plaintiff is reserved for the common use of Defendant No. 2 and of the Plaintiff. Accordingly, the appeals are allowed.

Tags : Easement Necessity Right

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Supreme Court

State of Orissa Vs. Mamata Sahoo and Ors.

MANU/SC/0927/2019

16.07.2019

Civil

Cognizance can be taken only on a complaint made by Appropriate Authority concerned

Present appeal arises out of judgment passed by the High Court by which the High Court has quashed the summoning order issued against the Respondents and also the complaint filed against them under Sections 23 and 25 of the Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 (PC and PNDT Act)

The High Court quashed the proceedings initiated against the Respondents on the ground that authorisation had not been granted by the District Magistrate-District Appropriate Authority, for filing the complaint; but the inspection was conducted. The High Court held that on the date of inspection conducted by the Tehsildar, he had no authority to conduct the inspection.

As per Section 28(1)(a) of the PC and PNDT Act, cognizance can be taken only on a complaint made by the Appropriate Authority concerned. As per Office Memorandum of the Health and Family Welfare Department dated 27th July, 2007, the District Magistrate of each District is appointed as "District Appropriate Authority" for the each District under the PC and PNDT Act. As per the said Office Memorandum, the District Magistrate-District Appropriate Authority may nominate the Executive Magistrate of the District as his/her nominee to assist him/her in monitoring the implementation of the PC and PNDT Act, as deemed necessary.

Additionally, Sub-Divisional Magistrate (Sub-Collector) of each Sub-Division is also appointed as an "Appropriate Authority" for the Sub-District/Sub-Division for strict implementation of the provisions under this Act. This is by virtue of the above Office Memorandum, the Executive Magistrate-Tehsildar has been nominated to assist the District Appropriate Authority-District Magistrate in monitoring the implementation of PC and PNDT Act. In the light of the above Office Memorandum, it cannot be said that the inspection conducted is without authority/authorisation.

The High Court did not properly appreciate the Office Memorandum and erred in quashing the proceedings initiated against the Respondents and, therefore, the impugned order cannot be sustained. Accordingly, the impugned judgment of the High Court is set aside and present appeal is allowed. Complaint Petition shall stand restored to the file of the Sub-Divisional Judicial Magistrate, who shall proceed with the matter in accordance with law.

Tags : Cognizance Proceedings Quashing of

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High Court of Delhi

Ramveer Vs. State

MANU/DE/2209/2019

15.07.2019

Criminal

Offence of attempt to murder is a serious offence, in proving its commission; prosecution is required to prove basic ingredients of murder short of death

By the instant Regular Appeal under Section 374 of Code of Criminal Procedure, 1973 (CrPC), the Appellant assails the judgment where-under, the Appellant has come to be convicted for the commission of the offence under Section 307 of Indian Penal Code, 1860 (IPC)

The Appellant submits that, the prosecution had failed to prove its case beyond reasonable doubt. To support such plea, it comes to be contended that while the prosecution had failed to examine any independent witness, the depositions of the prosecution witnesses were contradictory and the prosecution had failed to establish the case with which it approached the Court.

Motive for assault by the Appellant-that has come to be proved on record-is in consonance with the prosecution story and well established. Findings of the Trial Court that, the assailant was the Appellant and the weapon of offence used was the knife thus cannot be faulted with. Any contention raised to the contrary is therefore rejected.

Offence of attempt to murder is a serious offence, in proving commission of such an offence, prosecution is required to prove basic ingredients of murder short of death. There is also nothing on record to suggest that, the injured suffered any fracture or dislocation of a bone. Nothing emerges from the record that, the injured PW 8 remained in severe bodily pain or was unable to follow his ordinary pursuits and therefore, the injury could be termed to be grievous hurt as defined under Section 320 of IPC. The prosecution had miserably failed to prove that, the injury suffered by the injured PW 8 was grievous and therefore, the conclusion arrived at by the trial Court to that effect was not sustainable.

Commission of the offence under Section 324 IPC invites punishment with imprisonment of either description for a term which may extend to three years, or with fine, or with both. Incident has occurred at the spur of the moment. It emerges from the record that, the Appellant was beyond 21 years of age at the time of occurrence of the incident and has undergone incarceration for more than three months besides facing trial since the year 2002. Appellant deserves to be released on probation of good conduct instead of sentencing him at once to any punishment. The impugned judgment of conviction under Section 307 of IPC is modified to Section 324 of IPC and the impugned order on sentence is set aside.

Tags : Conviction Injury Nature

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High Court of Delhi

Natco Pharma Limited Vs. Bayer Healthcare LLC

MANU/DE/2207/2019

11.07.2019

Intellectual Property Rights

A prima facie case has to be made out for mandatory injunction to be granted at interim stage

Present appeal by the Defendant is directed against the order passed by the learned Single Judge whereby, the Appellant was restrained from infringing Indian patent IN No. 240207 held by the Respondent/Plaintiff.

The Respondent, which is part of the Bayer Groups of Companies, filed the suit against the Appellant/Defendant for permanent injunction to restrain it from making, using, selling, distributing, advertising, exporting, offering for sale and in any other manner directly or indirectly dealing with any product that infringes the subject matter of the Plaintiff's Indian Patent No. 240207.

Learned Senior counsel appearing for the Defendant/Appellant submitted that, the impugned interim order is contrary to the settled law explained in several decisions of the Supreme Court and present Court in the matter of granting an ad interim injunction. In particular, there is no satisfaction recorded of the Plaintiff having made out a prima facie case or that the balance of convenience is in his favour or that it would suffer irreparable hardship if the injunction is not granted.

Matters involving alleged infringement of patents constitute a separate species of litigation. A further sub-species would be those concerning pharmaceutical patents. This is because the law concerning them under the Patents Act, 1970 and other related legislation has peculiar elements that would have to be kept in view by the Court. Unsurprisingly, therefore, there is a growing volume of Indian case law dealing with the parameters that should weigh with the Court while examining the case of alleged infringement of pharmaceutical patents.

While the parameters that have to generally be kept in view in all suits where interim injunctions are sought would apply in such cases as well, they would indubitably involve other parameters which have been discussed in a large number of decisions including the decision that both parties have relied upon.

Each case of alleged infringement of patent, particularly a pharmaceutical patent, would turn on its own facts. It is not possible to conceive an 'across-the-board' blanket approach that would apply to all such cases, where as a matter of routine at the first hearing there would be a grant of injunction in favour of the Plaintiff. The decision in the application of interim injunction has to necessarily indicate the view of the Court on the three elements mentioned herein before and the additional features when it involves a case of alleged infringement of a patent, and in particular, a pharmaceutical patent. It is not the length of the order or its precise wording that matters.

The decision in Dorab Cawasji has been followed by the Supreme Court in its recent judgment in Tek Singh v. Shashi Verma, in which it clarified that "when a mandatory injunction is granted at the interim stage much more than a mere prima facie case has to be made out."

The impugned order which restrains the Defendant from infringing the suit patent does not lend itself to sufficient clarity. Although, the Appellant/Defendant has understood it to mean that the Defendant is restrained from manufacturing, selling its product in the market, it would have helped, if the order specified what the Defendant can or cannot do.

This Court hastens to clarify that it should not be understood as having expressed any opinion one way or the other on the respective contentions of the parties. A reading of the impugned order does not reflect a consideration of the above issues placed before the Court by the parties. It must be added that, the broad aspects of the submissions are indeed contained in the plaint, pleadings and documents which were available to the learned Single Judge when the impugned interim order was passed. The Court is of the view that, the impugned interim order requires to be set aside and the application for interim injunction be heard once again by the learned Single Judge on merits.

Relevant

Dorab Cawasji Warden vs. Coomi Sorab Warden and others MANU/SC/0161/2014
, Tek Singh vs. Shashi Verma and Ors. MANU/SC/0169/2019

Tags : Infringement Injunction Legality

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