High Court of Delhi

Ishwer Soni vs. The State (Govt Of Nct Of Delhi)

MANU/DE/1921/2020

23.10.2020

Criminal

In rape cases, the finding of guilt can be recorded even on the basis of uncorroborated testimony of the prosecutrix, if cogent and reliable

The present appeal is preferred under Section 374 of Code of Criminal Procedure, 1973 (CrPC) on behalf of the Appellant challenging the judgment and order arising out of FIR registered under Section 376 of Indian Penal Code, 1860 (IPC) and Section 6 of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act) whereby the Appellant was convicted for the offence punishable under Section 366A IPC and Section 6 of the POCSO Act.

It is well settled that, in a case of rape, the finding of guilt can be recorded even on the basis of uncorroborated testimony of the prosecutrix provided it is cogent and reliable. So far as testimony of a child witness is concerned, it has to be evaluated even more carefully as the same is susceptible to tutoring.

The trial Court, before recording the testimony of the child victim, recorded its satisfaction as to her maturity & competency for understanding the questions and giving their answers. Accordingly, present Court, in absence of submissions to the contrary, concurs with the opinion of the trial Court that the child victim was competent to stand as a witness. The Appellant did not dispute his identity. He was named in the FIR itself. The child victim during her testimony identified the Appellant as the accused person. She also deposed that the Appellant was known to her as he used to live in the same building where her Nani used to live and the victim used to address him as Mama (uncle). There is no delay in reporting the incident.

The child victim has consistently stated about the incident in all of her statements. Her evidence is trustworthy, reliable and also admissible. The appellant has failed to dislodge the statutory presumption under Sections 29 & 30 of the POCSO Act. The judgment of the trial court is upheld. Appeal dismissed.

Tags : Conviction Evidence Credibility

Share :

Top

High Court of Jammu and Kashmir

Hilal Ahmad Mir Vs. Anti-Corruption Bureau and Ors.

MANU/JK/0366/2020

19.10.2020

Criminal

Economic offences are required to be dealt with strictly especially in the matters relating to grant of bail

In present matter, the J&K State Co-operative Bank Ltd. (JKSCBL) sanctioned a loan in the amount of Rs. 250 crores without obtaining field report, balance sheet, profit and loss statement, PAN Number, income tax returns, constitution of the Society including its byelaws and Board resolution etc. and also without securing the loan amount by way of taking sufficient collateral security. As per the FIR, the Chairman of JKSCBL in conspiracy with the Petitioner herein, sanctioned and released the loan amount by flouting all the rules and regulations of the Bank. The FIR disclosed commission of offences under Section 5(1)(d) read with Section 5(2) of Jammu & Kashmir Prevention of Corruption Act, 2006 and offences under Section 465, 467, 468, 471 read with 120-B of Ranbir Penal Code (RPC).

First bail application of the Petitioner was rejected by the learned trial Court vide its order and his second bail application came to be rejected by the same Court. Feeling aggrieved of the aforesaid orders of the learned trial Court, the Petitioner has filed the instant application before this Court for grant of bail in his favour.

In the instant case, the learned Special Judge, Anti-corruption, Kashmir, Srinagar, has rejected the earlier bail applications of the Petitioner on two occasions. The question that arises for consideration is whether or not successive bail applications will lie before this Court. The law on this issue is very clear that, if an earlier application was rejected by an inferior Court, the superior Court can always entertain the successive bail application.

It is manifest that, the rejection of a bail application by Sessions Court does not operate as a bar for the High Court in entertaining a similar application under Section 439 of Code of Criminal Procedure, 1973 (CrPC) on the same facts and for the same offence. The instant bail application is held to be maintainable.

It is a settled position of law that, grant of bail is a rule whereas its refusal is an exception. The question whether bail should be granted in a case has to be determined on the basis of the facts and circumstances of that particular case. There can be no strait jacket formula or settled rules for exercise of discretion but the discretion to grant bail in the case of a non-bailable offence has to be exercised in accordance with the rules and principles laid down by the Code of Criminal Procedure and various judicial precedents. There cannot be a set formula for considering the plea of bail of an accused. It all depends upon the facts and circumstances relevant to the case.

The allegations against the Petitioners are very serious in nature and some of the offences disclosed against the Petitioner carry punishment of imprisonment up to 10 years. It is the case of the prosecution that the petitioner along with other co-conspirators have defrauded the JKSCBL by a huge amount of Rs. 223 crores and at this stage, it cannot be stated that the allegations against the Petitioner are without any substance. It is a settled law that, at the time of consideration of bail application, it is neither necessary nor desirable to have an in-depth analysis of the material on record. The material on record, however, does show that there is a genuine case against the Petitioner and that the prosecution will be able to produce prima facie evidence in support of the charge.

The question arises as to whether the petitioner can be denied the concession of bail, particularly when he is yet to be proved guilty and the trial is yet to commence. So far as the instant case is concerned, it is clearly stated in the challan that investigation into the case has not culminated as yet. It cannot be said that the investigation of the case has been completed. Present Court cannot lose sight of the fact that, the investigating agency is going to file an additional charge sheet. Therefore, Petitioner's presence in the custody may be necessary for further investigation.

Even otherwise, Petitioner is alleged to be involved in economic offences. As per observations of the Supreme Court in Nimmagadda Prasad vs. Central Bureau of Investigation case, the economic offences constitute a class apart and need to be visited with a different approach in the matter of bail. The Court has observed that, the economic offence having deep rooted conspiracies and involving huge loss of public funds need to be viewed seriously and considered as grave offences affecting the economy of the country as a whole and thereby posing serious threat to financial health of the country.

Economic offences are required to be dealt with strictly especially in the matters relating to grant of bail. The grant of bail in such cases, particularly when the whole conspiracy is still under investigation, would be detrimental to the public interest as well as to the interest of the State. The Court has to strike a balance between the rights of the accused to his liberty and the interest of the society. It would be inappropriate to grant the concession of bail to the Petitioner keeping in view the seriousness of allegations against him and the public interest. The Petitioner cannot be released on bail at this stage. The Anti-Corruption Bureau is, however, directed to complete the investigation and file the supplementary charge sheet as early as possible. Petition dismissed.

Relevant

Nimmagadda Prasad vs. Central Bureau of InvestigationMANU/SC/0485/2013

Tags : Economic offence Bail Rejection

Share :

Top

High Court of Patna

Mahendra Yadav Vs. The State of Bihar and Ors.

MANU/BH/0667/2020

19.10.2020

Civil

Fixing Minimum Support Price is a policy decision which cannot be interfered with by the Court, unless arbitrary

Petitioner prayed for issuance of writ in the nature of writ of mandamus directing the Respondents to henceforth immediately and expeditiously procure the ready and harvested crop of maize grains from the farmers of State and accordingly, pay such beneficiaries at the Minimum Support Prices (MSP) fixed by the Government of India. The question involved in present case is can the Court issue a mandamus directing the State to pay a Minimum Support Price (MSP) for an agricultural crop is the issue which arises for consideration before this Court.

Petitioner, who has filed the instant petition in public interest, desires that the State fixes a Minimum Support Price for procuring the agricultural crop, i.e. maize, which is lying in abundance in the State of Bihar. The Respondent No. 2 has opposed the petition, on the ground that procurement of particular crop is a policy matter and since, the Godowns of the Food Corporation of India are likely to be filled up with other category of food-grains to be procured, any decision for fixing the Minimum Support Price would be contrary to the public interest and against the policy.

Pricing and procurement of food-grains for public distribution system and fixing Minimum Support Price is a policy decision which cannot be interfered with by the Court, unless of course, such policy is arbitrary, capricious, whimsical or violative of Article 14/21 of the Constitution of India, 1950.

In the instant case, the State has placed on record the revised guidelines for distribution of coarse grains, including the maize amongst the beneficiaries, termed as "Targeted Public Distribution System or MDM/ICDS Scheme". Nothing is brought to notice indicating the policy or the action of the respondents to be violative of Article 14/21 of the Constitution. Only for the reason that this year in the State of Bihar, the crop of maize is in excess than the previous year, cannot be a reason for present Court to issue a mandamus directing the State to procure the food-grains i.e. maize under the Minimum Support Price, so fixed with respect to other items of food-grains. Petition disposed off.

Tags : MSP Fixation Legality

Share :

Top

Supreme Court

Umesh Kumar Sharma vs State Of Uttarakhand and Ors.

MANU/SC/0772/2020

16.10.2020

Criminal

Plea for transfer of case should not be entertained on mere apprehension of a hyper sensitive person

The present petitions are filed under Section 406 of the Code of Criminal Procedure, 1973 (CrPC) read with Order XXXIX of the Supreme Court Rules seeking transfer of three criminal cases pending before different courts in Dehradun to competent courts or some other courts outside the State of Uttarakhand.

The learned Senior Counsel submits that, the Petitioner apprehends threat to his life and will be prejudiced in conducting his defense in the Courts at Dehradun. The basic premise for such apprehension is that, on account of his work as an investigative journalist against the Ruling dispensation, the State is targeting the Petitioner for vindictive prosecution. As a journalist, the Petitioner has conducted sting operations against the Chief Minister, his relatives and associates in the State of Uttarakhand and therefore, he is being targeted for malicious prosecution within the State. Moreover, besides the three cases for which transfer is sought, many false cases are foisted against the Petitioner. As such, the Petitioner has a genuine and justifiable apprehension that justice will not be done, if the trials are conducted in the courts within the State of Uttarakhand. Therefore, those cases be transferred either to the courts in Delhi or to any other competent courts, out of Uttarakhand.

Transfer power under Section 406 of the CrPC is to be invoked sparingly. Only when fair justice is in peril, a plea for transfer might be considered. The court however will have to be fully satisfied that impartial trial is not possible. Equally important is to verify that the apprehension of not getting a level playing field, is based on some credible material and not just conjectures and surmises.

While assurance of a fair trial needs to be respected, the plea for transfer of case should not be entertained on mere apprehension of a hyper sensitive person. In his pleadings and arguments, the Petitioner has failed to demonstrate that because of what he endured in 2018, it is not possible for the Courts in the state to dispense justice objectively and without any bias. It can’t also be overlooked that, the Petitioner is involved in several cases and this year itself has generated few on his own in the state of Uttarakhand. Therefore, it is difficult to accept that, justice for the Petitioner can only be ensured by transfer of three cases mentioned in present petitions.

While considering a plea for transfer, the convenience of parties would be a relevant consideration. It can’t just be the convenience of the Petitioner but also of the Complainant, the Witnesses, the Prosecution besides the larger issue of trial being conducted under the jurisdictional Court. When relative convenience and difficulties of all the parties involved in the process are taken into account, it is clear that the Petitioner has failed to make out a credible case for transfer of trial to alternative venues outside the State.

When the nature of the three cases is examined, it is seen that, two of the cases are property and Will related matters. One of this case is pending for last over a decade. Therefore, present Court finds it difficult to accept that, the cases are on account of journalistic activities of the Petitioner. In fact, the credibility of the journalistic activity of the Petitioner is itself questioned, by a member of his sting operation team, in the third case. In such circumstances, the prosecution in the concerned three cases can’t prima facie be said to be on account of malicious prosecution. Transfer Petitions are dismissed.

Tags : Apprehension Transfer plea Entitlement

Share :

Top

High Court of Kerala

Transworld Hire Purchase India Ltd. Vs. Joy C. and Ors.

MANU/KE/2831/2020

16.10.2020

Company

When there is no specific denial against the assertions made by the creditors, it implies admission

Present are appeals preferred under Section 483 of the Companies Act, 1956, read with Section 5 of the High Court Act, challenging the correctness of the judgment passed by the learned Single Judge in Company Petitions. Respondents in present appeals moved present Court under Section 433(e) read with Sections 434(a) and 439(b) of the Act, seeking to wind up the Appellant company. They claim that, they are creditors of the company, that huge amounts are due to them from the company, inspite of repeated demands the amounts were not repaid, and thus, it became clear that, the company is unable to repay the debts due to the creditors and thus, they wanted the company to be wound up.

Against the specific allegation of deposits having made, the company has not given any specific denial, instead evasive averments are made in the counter affidavit. It is trite that when there is no specific denial against the assertions made by the creditors, it implies admission. All these company petitions were filed after sending registered notices under Section 434(1) of the Act, addressed to the registered office of the Company. But all the notices were returned un-served with the endorsement that the addressee had left the station.

In the counter affidavit, the Appellant had stated that he has sufficient assets to pay off the debts, at least within one year time, by raising funds he will be able to clear the liabilities. Such a statement was given on 1st January, 2013. The impugned judgment was passed on 21st May, 2014, more than 16 months after making such an averment. By the time, if the offer was made in right earnest, he would have settled at least some of the liabilities. But there was no material to infer that any positive step was taken in that direction. That was how the learned Single Judge made the observation that, the hope nursed by the Appellant on the revival of the business was without any bonafides.

Worsening the case of the Appellant, even after lapse of more than six years, when these appeals were taken up, there is no suggestion that the situation has improved. That means, the Company has become commercially insolvent. Again, the contention of the Appellant that the Company is hopeful of reviving the business, the averment remains on the papers.

Materials produced with the company petitions show that, large number of creditors is awaiting in the queue, after making deposits in the schemes floated by the company. Lack of bonafides is writ large in the conduct of the Appellant which dis-entitle it to get any relief. The Company is unable to discharge the liabilities created in the name of the Company. There is no reason to interfere with the finding of the learned Single Judge. Appeal dismissed.

Tags : Insolvency Winding up Validity

Share :

Top

High Court of Kerala

Prasad A. and Ors. Vs.Union of India and Ors.

MANU/KE/2847/2020

16.10.2020

Civil

When Circulars are issued by the DGCA to ensure public safety, the right to life guaranteed by the Constitution is not violated as same is subject to restrictions

Present writ petitions have been filed by the respective Petitioners challenging the Breath Analyzer examination of the personnel engaged in Aircraft Maintenance, Air traffic control services, Aerodrome operations and Ground handling services for detecting consumption of alcohol, prescribed by the office of the Director General of Civil Aviation, New Delhi.

The Director General of Civil Aviation (DGCA), as per an order F. No. DGCA.15032(02)/1/2019-DAS dated 16th September, 2019, made it mandatory for the personnel engaged in Aircraft Maintenance, Air traffic control services, Aerodrome operations and Ground handling services, to undergo a Breath Analyzer (BA) examination for detection of consumption of alcohol. The said order was issued under the provisions of Section 5(A) of the Aircraft Act, 1934, Rule 21A and Rule 24(3) read with Rule 133A of the Aircraft Rules, 1937. The DGCA extended the applicability of the Circular dated 16th September, 2019 to the personnel engaged in maintenance of communications, navigations and surveillance (CNS) also.

The security of Aircrafts and air passengers is of considerable concern to the national security as also public safety. The Circulars and orders issued by the DGCA therefore should be viewed in this angle. The Circular dated 16th September, 2009 provides for procedure for Breath Analyzer examination.

The concern expressed by the Petitioners relating to infection through the Air Blank check is unfounded. Air Blank check is necessary for checking a Breath Analyzer to a performing test and to ensure that the instrument is starting from zero. The instrument is expected to display a reading of 0.000, when performing the Air Blank check. Some instruments require the Breath Analyzer to manually perform the Air Blank check, whereas other devices perform this function automatically. Some of the Breath Analyzer instruments will not allow the test to proceed, if the Air Blank result is not 0.000. Even if the Respondents are using an instrument which requires manual performance of Air Blank check, Clause 7.2 of the order dated 7th September, 2020 would sufficiently protect examinees from the chance of infection.

Forcing the Petitioners to undergo Breath Analyzer Tests at times of virus pandemic, may affect their right to life under Article 21 of the Constitution of India. But, the right to life guaranteed by the Constitution is subject to restrictions in accordance with the procedure established by law. The impugned orders/Circulars have been issued by the DGCA in exercise of his statutory powers under Section 5A of the Aircraft Act, 1934. They are intended to ensure public safety. The orders issued by the DGCA effectively address the concern of the petitioners as to the apprehended violation of their right to life likely to be caused by the use of BA apparatus, at the same time ensuring public safety. Writ petitions dismissed.

Tags : Fundamental rights Circular Legality

Share :