December 2023 - The Law Literates

28Dec, 2023

वकालत का लाइसेंस देने से पहले पुलिस रिपोर्ट की जांच की जाए।इलाहाबाद हाईकोर्ट ने बार काउंसिल को निर्देश दिया है!

वाकई, वकालत के लाइसेंस पहले पुलिस रिपोर्ट की जांच के बिना नहीं देना चाहिए। इससे न्यायिक प्रक्रिया को सुरक्षित बनाए रखने का महत्वपूर्ण साधन है, और इस दिशा में इलाहाबाद हाईकोर्ट ने बार काउंसिल को निर्देशित किया है।

इलाहाबाद हाईकोर्ट ने वाकीलों के लाइसेंस के लिए पुलिस सत्यापन की प्रक्रिया तय की है। यह वाकई महत्वपूर्ण है! आपराधिक इतिहास वाले वकीलों को वकालत करने के लिए आसानी से लाइसेंस नहीं मिल पाएगा, क्योंकि इलाहाबाद हाईकोर्ट ने बार काउंसिल को यह सुनिश्चित करने के लिए एक प्रक्रिया विकसित करने का निर्देश दिया है कि लाइसेंस देने के लिए प्राप्त सभी नए आवेदन पुलिस सत्यापन के अधीन हो। यह महत्वपूर्ण निर्देश न्यायमूर्ति सौमित्र दयाल सिंह और न्यायमूर्ति विनोद दिवाकर की खंडपीठ ने पवन कुमार दुबे द्वारा दायर एक याचिका पर सुनवाई करते हुए हुए पारित किया है। इस मामले में याचिकाकर्ता ने चौदह आपराधिक मामलों की लंबितता के संबंध में महत्वपूर्ण जानकारी छिपाने के संबंध में निजी-प्रतिवादी के खिलाफ शिकायत की थी, जिनमें से चार मामलों में उसे दोषी ठहराया गया है। उस जानकारी को छिपाकर, प्रतिवादी ने कानून का अभ्यास करने का का लाइसेंस प्राप्त कर लिया था, हालांकि याचिकाकर्ता के वकील के अनुसार, प्रतिवादी वकालत से काफी दूर है।

इस निर्देश के अनुसार, आपराधिक इतिहास वाले वकीलों को लाइसेंस प्राप्त करने के लिए पुलिस सत्यापन अब अनिवार्य है, जैसा कि इलाहाबाद हाईकोर्ट ने निर्देशित किया है। यह एक महत्वपूर्ण कदम है जो न्यायिक प्रक्रिया को सुरक्षित और विश्वसनीय बनाए रखने का उदाहरण है।

न्यायमूर्ति सौमित्र दयाल सिंह और न्यायमूर्ति विनोद दिवाकर की खंडपीठ ने पवन कुमार दुबे की एक याचिका पर सुनवाई करते हुए चौदह आपराधिक मामलों की लंबितता के संबंध में महत्वपूर्ण निर्देश जारी किए हैं। याचिकाकर्ता ने चार मामलों में दोषी ठहराया है, जबकि प्रतिवादी ने कानून का अभ्यास करने का लाइसेंस प्राप्त किया है, लेकिन उसे दूरी से वकालत की बताई जा रही है।

तदनुसार, तत्काल याचिका का निपटारा प्रतिवादी नंबर 3 को यह निर्देश दिया गया है कि याचिकाकर्ता द्वारा लाई गई अनुशासनात्मक कार्यवाही को कानून के अनुसार यथासंभव शीघ्रता से, अधिमानतः तीन महीने की अवधि के भीतर पूरा करना होगा।

मामले को ख़त्म करने से पहले न्यायालय ने चिंताजनक स्थिति पर ध्यान देते हुए कहा:

चौंकाने वाली बात है कि चौदह मामलों का आपराधिक इतिहास रखने वाले व्यक्ति, जिनमें से चार मामलों में उसे पहले ही दोषी ठहराया गया है, ने कानून का अभ्यास करने का लाइसेंस प्राप्त किया है। यदि ऐसे लाइसेंस को उत्पन्न होने और/या जारी रखने की अनुमति दी जाती है, तो इससे सामान्य रूप से समाज और विशेष रूप से कानूनी बिरादरी को नुकसान हो सकता है। अधिवक्ता अधिनियम ऐसे व्यक्ति को प्रैक्टिस के लिए प्रवेश पर रोक लगाता है।

कोर्ट ने कहा: “प्रतिवादी नंबर 2 को यह सुनिश्चित करने के लिए एक प्रक्रिया विकसित करनी चाहिए थी कि लाइसेंस देने के लिए प्राप्त सभी नए आवेदन समयबद्ध तरीके से पुलिस सत्यापन प्रक्रिया के अधीन हैं। सभी आवेदक, जो आपराधिक आरोपों का सामना कर रहे हैं और/या दोषी ठहराए गए हैं, अपने आवेदन करने के चरण में बार काउंसिल को ऐसे मामलों की लंबितता और/या सजा के किसी भी आदेश के अस्तित्व के बारे में सूचित करने के लिए बाध्य हैं। यदि किसी आवेदक द्वारा ऐसे महत्वपूर्ण विवरणों का खुलासा नहीं किया जाता है, तो उसका आवेदन शुरुआत में ही खारिज कर दिया जा सकता है। इस प्रकार, बार काउंसिल ने अभी तक अपने स्वयं के कानून को लागू करने के लिए कोई प्रक्रिया विकसित नहीं की है, जो आश्चर्यजनक है।”

आदेश:

हम प्रतिवादी क्रमांक 1 और 2 को तत्काल आवश्यक दिशा-निर्देश जारी करने और यह सुनिश्चित करने के लिए निर्देशित करते हैं कि लाइसेंस जारी करने के लिए सभी लंबित और नए आवेदनों के संबंध में संबंधित पुलिस स्टेशनों से उचित पुलिस रिपोर्ट मांगी जाए, जैसा कि पासपोर्ट जारी करने के लिए किया जा रहा है। इस तरह की उचित परिश्रम प्रक्रिया यह सुनिश्चित करेगी कि जिस व्यक्ति का आपराधिक इतिहास हो सकता है, उसे लाइसेंस प्राप्त करने में बार काउंसिल को गुमराह करने से रोका जा सकता है। प्रतिकूल पुलिस रिपोर्ट के लंबित रहने तक जारी किया गया अनंतिम लाइसेंस ऐसी रिपोर्ट प्रस्तुत किए जाने पर रद्द किया जा सकता है।

27Dec, 2023

Acquittal/Murder By the instant appeal, the appellant assails the judgment passed in SC arising out of FIR, holding the appellant guilty of commission of the offence under Section 302 of the IPC with which he was charged as well as the order awarding sentence of imprisonment for life and a fine of Rs.10,000/queshed

HIGH COURT OF DELHI CRL.A. No. 13/2013
VIKAS GUPTA @ BOBBY Vs STATE

CORAM
HON’BLE MS. JUSTICE GITA MITTAL HON’BLE MS. JUSTICE ANU MALHOTRA

• Murder By the instant appeal, the appellant assails the judgment passed in SC arising out of FIR, holding the appellant guilty of commission of the offence under Section 302 of the IPC with which he was charged as well as the order awarding sentence of imprisonment for life and a fine of Rs.10,000/and in default of payment of fine, ordering simple imprisonment for six months Even the investigating officer had informed the doctor that the “deceased had consumed an unknown substance after a quarrel with her husband at home” On a conjoint readings of the DD No.39B; the MLC; the marginal note on the post mortem report, which is corroborated by the first statement of Master ‘M’, and statement of the daughter of the deceased it has to be held that the prosecution has failed to establish beyond reasonable doubt that the appellant had duped the deceased into consuming a poisonous substance more specifically Organo – phosphorous pesticide (Dichlor VOS) leading to her death — The judgment as well as the order of sentence awarding sentence of imprisonment for life and a fine of Rs.10,000/and in default of payment of fine, ordering simple imprisonment for six months are not sustainable and are hereby set aside and quashed.

Relevant Paras :

39. The MLC records this very disclosure by Himanshu, son of the deceased to the doctor. The marginal note on the post mortem report Ex.PW-15/A also states that the history disclosed by the investigating officer was that the deceased had consumed some unknown substance after quarrel with her husband at home. No allegation was made that the same had been offered to her by the husband.
40. The marginal note on the post mortem report and the MLC shows that the deceased had been rushed to hospital by her husband, the present appellant with the alleged history of ingestion of some unknown substance. The appellant alleges that all these circumstances proved on the record establish that the appellant could not have been held guilty for commission of the offence with which he was charged. We find substance in these submissions.
41. We extract hereunder the material explanation given by the appellant when the evidence regarding the commission of the offence was put to him under Section 313 of the CrPC:

“Q.17 It is further in evidence against you that PW-2 Himanshu Gupta, your son and PW-3 Baby Samishtha, your daughter, both have deposed that you used to drink daily and pick up quarrel with deceased Bharti Gupta. They have also stated that on 20.09.2009, their mother had gone to market to purchase vegetables and she became late and when she returned, you were under influence of liquor and started abusing her and beating her. What you have to say?
Ans. It is incorrect.
Q.18 ItisfurtherinevidenceagainstyouthatPW2& 3 have also stated that you continued beating Bharti till next day i.e. 21.09.09. you again started quarrel with Bharti and at around 2:15 p.m. Their mother being fed up with you uttered words that “isse acha hai ki main mar jaon” on which you gave insecticide (used for killing cockroaches) mixed in water to their mother and since said insecticide (used for killing cockroaches) mixed in water to their mother and since said insecticide after mixing with water was still transparent like water, she consumed the same as a result of which jhag started coming out of her moth and she started vomiting. What you have to say?
Ans. It is incorrect. I never gave any insecticide to Bharti at any point of time. Rather at the time when she consumed insecticide, I was not present at home.
I came at the spot later on and on finding Bharti in the intoxicated condition, I rushed her to hospital for her treatment. The allegations levelled against me is false and totally baseless. Deceased Bharti was fed up and used to remain tense as my daughter Kajal was not being given by my father-in-law and mother-in- law as she was very lucky to them. My wife used to make various request to them to return her to us as she might be very lucky for us but they were adamant not to return her. On 20.09.09, my wife went to her parental home to take our daughter kajal being very lucky but they flatly refused and they scolded her not to come again for this purpose. I used to work with my inlaws at their kite shop for the period from January, 2009 upto 20.09.2009 and I have also been given a sum of Rs.20,000/- by my father in law. I also used to take the payment during this period from time to time. My relation with my wife were very cordial. The demonstration with dead body was also held on 22.09.09 by my inlaws, other people including the Leaders of Political parties in the mohalla and also at the Police Station after that police came in action and a DD no. 18A was made and after that the statements were recorded and the false FIR was registered in which I have been falsely implicated by the police.
xxx xxx xxx
Q. 24 Do you want to say anything else?
Ans. I am innocent and have been falsely implicated in this case. I never gave any insecticide to Bharti at any point of time. Rather at the time when she consumed insecticide, I was not present at home. I came at the spot later on and on finding Bharti in the intoxicated condition, I rushed her to hospital for her treatment. The allegations levelled against me is false and totally baseless. Deceased Bharti was fed up and
used to remain tense as my daughter Kajal was not being given by my father-in-law and mother-in-law as she was very lucky to them. My wife used to make various request to them to return her to us as she might be very lucky for us but they were adamant not to return her. On 20.09.09, my wife went to her parental home to take our daughter kajal being very lucky but they flatly refused and they scolded her not to come again for this purpose. I used to work with my inlaws at their kite shop for the period from January, 2009 upto 20.09.2009 and I have also been given a sum of Rs.20,000/- by my father in law. I also used to take the payment during this period from time to time. My relation with my wife were very cordial. The demonstration with dead body was also held on 22.09.09 by my inlaws, other people including the Leaders of Political parties in the mohalla and also at the Police Station after that police came in action and a DD no. 18A was made and after that the statements were recorded and the false FIR was registered in which I have been falsely implicated by the police.”
42. On a conjoint readings of the DD No.39B; the MLC No.7539/09 EX.PW-13/A; the marginal note on the post mortem report dated 22nd September, 2009, which is corroborated by the first statement dated 21st September, 2009 (Ex.PW-2/B) of Master Himanshu @ Honey, and statement dated 21st September, 2009 (EX.PW-18/C) of the daughter of the deceased, namely, Samishtha, it has to be held that the prosecution has failed to establish beyond reasonable doubt that the appellant had duped the deceased Bharti Gupta into consuming a poisonous substance more specifically
Organo – phosphorous pesticide (Dichlor VOS) leading to her death.
43. In view thereof, the judgment dated 17th July, 2012 as well as the order of sentence dated 20th July, 2012 awarding sentence of imprisonment for life and a fine of Rs.10,000/- and in default of payment of fine, ordering simple imprisonment for six months are not sustainable and are hereby set aside and quashed.

To read the judgment Kindly click here

VIKAS GUPTA @ BOBBY VERSUS STATE DELHI HIGH COURT JUDGMENT THE LAW LITERATES

25Dec, 2023

Order 20, Rule 18 , Section 54 CPC Appeals by non-parties to judgment, challenging only one portion of impugned judgment Preliminary decree in suit for partition merely declares shares that parties are entitled to in any of the properties included in plaint schedule and liable to partition

(REPORTABLE )SUPREME COURT OF INDIA
CIVIL APPEAL NOS. OF 2023 (ARISING OUT OF SLP (C) NOS.2373-2377 OF 2020)

M/S TRINITY INFRAVENTURES LTD. & ORS. ETC. VERSUS M.S. MURTHY & ORS. ETC. …

Order 20, Rule 18 , Section 54 CPC Appeals by non-parties to judgment, challenging only one portion of impugned judgment Preliminary decree in suit for partition merely declares shares that parties are entitled to in any of the properties included in plaint schedule and liable to partition – On basis of mere declaration of rights that take place under preliminary decree, parties cannot trade in, on specific items of properties or specific portions of suit schedule properties.

194. Therefore, in a case of partition and separate possession not covered by Section 54 of the Code, a preliminary decree is first passed in terms of Order XX Rule 18 (2) of the Code, a Commissioner is
appointed in a subsequent proceeding under Order XXVI Rule 13 and on the basis of his report, a final decree is passed under Order XXVI Rule 14 (3) of the Code. Thereafter, the possession of such property, if
it is an immovable property, is taken by executing such final decree in terms of Order XXI Rule 35 of the Code.
195. Therefore, the question of specific immovable properties or specifically identified portions of immovable properties getting allotted
to any person merely holding a preliminary decree with respect to an undivided share does not arise. A preliminary decree in a suit for partition merely declares the shares that the parties are entitled
to in any of the properties included in the plaint schedule and liable to partition. On the basis of a mere declaration of the rights that take place under the preliminary decree, the parties cannot trade in, on specific items of properties or specific portions of suit schedule properties. Since there are three stages in
a partition suit, namely (i) passing of a preliminary decree in terms of Order XX Rule 18(2); (ii) appointment of a Commissioner and passing
of a final decree in terms of Order XXVI Rule 14 (3); and (iii) taking possession in execution of such decree under Order XXI Rule 35, no party to a suit for partition, even by way of compromise, can acquire
any title to any specific item of property or any particular portion of a specific property, if such a compromise is struck only with a few parties to the suit.
196. In fact, Sameena Kausar and others stake claim to the land of the extent of acres 60.00 in Survey No.172 of Hydernagar, on the basis of a gift made by defendant No.52. Even admittedly, Sameena Kausar
and others have sold half of that land way back in 1997 to M/s Jayaho Estates. Yet Sameena Kausar and others have come up with appeals.
197. Be that as it may, a look at the Memorandum of Oral Gift dated 19.12.1978 executed by Ghousuddin Khan (defendant No.52) shows that the said document purports to be a record of the oral gift (hiba)already made on 10.10.1978. This Memorandum of Oral Gift declares that the donor have also delivered possession of the gifted property to the donee. Interestingly, this Memorandum of Oral Gift does not contain a Schedule of property, but contains very strangely, the boundaries alone. It will be useful to extract the last part of this
Memorandum of Oral Gift dated 19.12.1978. It reads as follows:-
“Today on 19th December 1978 I have confirmed the oral gift made on 10th October 1978 in favor of the Donee and executed this Memorandum of gift in presence of the following witnesses.
Hence these few words are written by me as a
MEMORANDUM OF GIFT so that it may remain as an authority and used at time of need.
Dated : 19th December 1978.
Boundaries:
North: Nizampet village
South: Bombay High way
East: Hydernagar village,
West: Survey No. 28 land of Jeelani Begum.
Sd/-Donor Ghouse Mohiuddin Khan.
Sd/- witness Sd/- witness”

198. It is true that in the body of the Memorandum, the donor claims to be the owner in possession of the land measuring acres 60 in Survey No.172 of Hydernagar. But Survey No.172 of Hydernagar has
land of a total extent of acres 196.20. The claim of defendant No.52 to acres 60 out of the total extent, is on the basis of an order purportedly passed first on 31.01.1976, in Application No.139 of 1971. But the
only order passed in this application is to the effect that the parties have not been able to agree upon the allotment of shares and that therefore, the matter had to be forwarded to the Collector under Section 54 CPC. But all of a sudden, a final report filed by one P.
Narasimha Rao Receiver/Commissioner, surfaces, allegedly on the basis of a compromise decree in Application No.185 of 1973. In the table contained in the said final report, Survey No.172 is shown to
have been sub-divided into 25 different parts bearing Survey Nos.172/1 to 172/25. What is shown therein to have been allotted to defendant No.52 were the following:
Survey No. Allotted to D-52 Out of
172/8 0.2 G 9 Acres 39 Guntas
172/9 10.02 G 10 Acres 02 Guntas
172/17 7.08 G 7 Acres 08 Guntas
172/18 10.00 G 10 Acres 00 Guntas
172/19 10.07 G 10 Acres 07 Guntas
172/20 9.34 G 9 Acres 34 Guntas
172/21 5.04 G 5 Acres 04 Guntas
172/22 5.38 G 5 Acres 38 Guntas
172/23 5.00 G 5 Acres 25 Guntas
62.13 G

199. Interestingly, the order passed in Application No.139 of 1971 is dated 21.01.1976. If pursuant to the said order, Survey No.172 had been sub-divided and different parcels of land in various sub-divisions
of Survey No.172 stood allotted to defendant No.52, the Memorandum of Gift dated 19.12.1978 should have contained all these sub-divisions of survey numbers and a proper description. Without giving the sub- division numbers of Survey No.172 and without describing different parcels of land as per the allotment allegedly made by the Advocate
Commissioner, the Memorandum of gift proceeds to mention mere boundaries. Interestingly, Northern boundary is stated to be Nizampet village, Southern boundary is stated to be Bombay Highway and Western boundary is stated to be Survey No.28 belonging to Jeelani Begum. Therefore, the entire claim made by persons claiming under defendant No.52, appears to be a hoax.

To judgment kindly click here

M:S TRINITY INFRAVENTURES LTD. & ORS. ETC. …APPELLANT(S) VERSUS M.S. MURTHY & ORS. ETC. …RESPONDENT(S)_Judgement_15-Jun-2023 (1) The Law Literates

21Dec, 2023

Section 439 CRPC Sections 354C, 354D, 376, 506 and 34 IPC Bail Sexual intercourse without consent Accused also uploaded indecent pictures of the complainant/prosecutrix on social media/Bail Granted

HIGH COURT OF DELHI
% Reserved on: 28th November, 2023
Date of Decision:07thDecember, 2023
+ BAILAPPLN. 958/2023
ADITYA RAJ VERSUS STATE & ANOTHER

CORAM
HON’BLE DR. JUSTICE SUDHIR KUMAR JAIN
JUDGMENT

• Section 439 CRPC Sections 354C, 354D, 376, 506 and 34 IPC Bail Sexual intercourse without consent Accused also uploaded indecent pictures of the complainant/prosecutrix on social media Counsel for the petitioner argued that the complainant /prosecutrix has taken different stands on 03 occasions within 24 hours as such the entire complaint of the complainant/prosecutrix is raising serious doubt to her version of committed of rape/sexual assault by the petitioner Complainant/prosecutrix was aged about 16 years and as per the Status Report, her date of birth was 30.06.2001. The petitioner is aged about 24 years. It is also pertaining to mention that the present FIR was also got registered in the year 2020 and as per the allegations made by the complainant/prosecutrix, the petitioner for the first time has committed the act of rape/sexual assault in the year 2017 as such there is a delay of 05 years in the registration of FIR which the prosecution required to explain during the trial – Arguments advanced by the Additional Public Prosecutor as referred hereinabove can be considered during the trial of the case particularly

Relevant Paras :

8. A coordinate bench of this court in Dharmander Singh @
Saheb V. The State (Govt. of NCT, Delhi) Bail Appl. 1559/2020
decided on 22.09.2022 has laid down the parameters that are to be
followed when considering bail of an accused person under the
POCSO Act. The relevant portion of the judgment reads as:
77. Though the heinousness of the offence alleged will beget the length ofsentence after trial, in order to give due weightage to the intent andpurpose of the Legislature in engrafting section 29 in this special statute to protect children from sexual offences, while deciding a bail plea at the post-charge stage, in addition to the nature and quality ofthe evidence before it, the court would also factor in certain real life considerations, illustrated below, which would tilt the balance against or in favour of the accused:
a. the age of the minor victim : the younger the victim, the more heinous the offence alleged;
b. the age of the accused : the older the accused, the more heinous the offence alleged;
c. the comparative age of the victim and the accused : the more their age difference, the more the element of
perversion in the offence alleged;
d. the familial relationship, if any, between the victim and theaccused : the closer such relationship, the more odious the offence alleged;
e. whether the offence alleged involved threat,
intimidation,violence and/or brutality;
f. the conduct of the accused after the offence, as alleged;

g. whether the offence was repeated against the victim; or
whetherthe accused is a repeat offender under the POCSO
Act orotherwise;
h. whether the victim and the accused are so placed that the
accused would have easy access to the victim, if enlarged on
bail: the more the access, greater the reservation in granting
bail;
i. the comparative social standing of the victim and the
accused:this would give insight into whether the accused is
in adominating position to subvert the trial;
j. whether the offence alleged was perpetrated when the
victim and the accused were at an age of innocence: an
innocent,though unholy, physical alliance may be looked at
with less severity;
k. whether it appears there was tacit approval-in-fact,
though not consent-in-law, for the offence alleged;
l. whether the offence alleged was committed alone or along
with other persons, acting in a group or otherwise;
m. other similar real-life considerations.
The above factors are some cardinal considerations, though
farfrom exhaustive, that would guide the court in assessing
the egregiousness of the offence alleged ; and in deciding
which way the balance would tilt. At the end of the day
however, considering the myriad facets and nuances of real-
life situations, it is impossible to cast in stone all
considerations for grant or refusal of bail in light ofsection
29. The grant or denial of bail will remain, as always, in the
subjective satisfaction of a court; except that in view of
section 29,when a bail plea is being considered after charges
have been framed,the above additional factors should be
considered.
9. A coordinate bench of this court in Praduman V. The State
(Govt. of NCT, Delhi) &Anr., Bail Appl. no. 2380/2021 decided on
05.10.2021 granted bail to the accused person on the ground that thestatements of the prosecutrix has contradictions. The relevant portion
of the judgment reads as:
20. A perusal of the above mentioned facts show that the
prosecutrix has given three different statements. In the
MLC which was conducted prior tothe FIR she does not
name the petitioner. The MLC was conducted because
prosecutrix who was below the age of 18 years was found to
be pregnant. The FIR was registered on the next day when
she named the petitioner. The statement of the prosecutrix
under Section 164 CrPC was recorded wherein she does not
name the petitioner.
X
X
22. Consensual sex has been in legal grey area because the
consent given by minor cannot be said to be a valid consent
in the eyes of law. The short question which arises is as to
whether the petitioner should be granted bail or not.
Whereas, what has become a trite and unfortunate practice
is that the Police are filing POCSO cases at the behest of the
family of a girl who object to her friendship and romantic
involvement with a young boy. The rigor of the law is
therefore being misapplied and subsequently misused. The
age of the petitioner and the prosecutrix, the photograph
which categorically pointed towards a relationship between
the two and the discrepancies in the statements given at the
time of the recordings of the MLC, the FIR and the
statement under Section 164 CrPCare all mitigating factors
which tilt the balance towards the grant of bail tothe
accused.
10. It is reflecting that the complainant/prosecutrix has taken 03
different stands in the complaint dated 18.10.2022 and the statement
under section 164 Cr.P.C. recorded on 19.10.2022 and at the time ofcomplainant/prosecutrix has also refused for internal medical
examination.
11. As stated hereinabove, the counsel for the petitioner argued that
the complainant/prosecutrix has taken different stands on 03 occasions
within 24 hours as such the entire complaint of the
complainant/prosecutrix is raising serious doubt to her version of
committed of rape/sexual assault by the petitioner. The
complainant/prosecutrix was aged about 16 years and as per the Status
Report, her date of birth was 30.06.2001. The petitioner is aged about
24 years. It is also pertaining to mention that the present FIR was also
got registered in the year 2020 and as per the allegations made by the
complainant/prosecutrix, the petitioner for the first time has
committed the act of rape/sexual assault in the year 2017 as such there
is a delay of 05 years in the registration of FIR which the prosecution
required to explain during the trial. The arguments advanced by the
Additional Public Prosecutor as referred hereinabove can be
considered during the trial of the case particularly, in light of thedifferent stands taken by the complainant/prosecutrix as mentioned
hereinabove.
12. The petitioner is stated to have deep roots in the society and is
not a flight risk. The investigation has already been completed and the
petitioner is in judicial custody since 13.11.2022. After considering all
facts, the petitioner is admitted to bail on furnishing personal bond in
the sum of Rs.25,000/- (Rupees Twenty Five Thousand only) with 02
sureties of the like amount to the satisfaction of the concerned trial
court.

To read the judgment click here :

ADITYA RAJ ….. Versus STATE & ANOTHER judgement the law literates

18Dec, 2023

Specific Relief Act Section 6 Delhi Rent Control Act, Section 25B Dispossession Dismissal of suit for possession and permanent injunction of filed by tenant Cause of action to file suit i.e. date of ‘dispossession’ No Relief Sought

HIGH COURT OF DELHI
% Date of Decision: 13th February, 2023 + C.R.P. 38/2023
MOINUDDIN …..versus MR. WASEEM AHMED AND ORS.

CORAM:
HON’BLE MS. JUSTICE JYOTI SINGH

• Specific Relief Act Section 6 Delhi Rent Control Act, Section 25B Dispossession Dismissal of suit for possession and permanent injunction of filed by tenant Cause of action to file suit i.e. date of ‘dispossession’ – Held, tenant unable to place any material on record to show that he was in settled possession of suit property upto date which fell within last six months of institution of suit – In fact, in plaint, it is not even spelt out as to on what exact date, tenant was dispossessed from suit property – Therefore, going by electricity bills which were only piece of evidence on record to show possession of suit property, at the highest, tenant was in possession upto 30.04.2014 – Thus, cause of action, if any, arose on 01.05.2014 and suit was filed on 22.08.2015 and was thus beyond period of limitation of six months prescribed under Section 6(2)(a) of the Act – Hence, dismissal of suit upheld. No relief sought

Relevant

11. Despite several opportunities, Defendants No. 1, 3 and 4 did not cross-examine the Plaintiff’s witnesses and their right to cross- examine was closed vide order dated 23.11.2019.
12. On the basis of the evidence led by the parties, the Trial Court dismissed the suit for possession filed by the Plaintiff and having perused the impugned judgment, this Court finds no infirmity, for the
reasons that follow. Section 6 of the Act, reads as under:-
“6. Suit by person dispossessed of immovable property.– (1) If any person is dispossessed without his consent of immovable property otherwise than in due course of law, he or any person through whom
he has been in possession or any person claiming through him may, by suit, recover possession thereof, notwithstanding any other title that may be set up in such suit.
(2) No suit under this section shall be brought –
(a) after the expiry of six months from the date of dispossession; or
(b) against the Government.
(3) No appeal shall lie from any order or decree passed in any suit instituted under this section, nor shall any review of any such order or decree be allowed.
(4) Nothing in this section shall bar any person from suing to establish his title to such property and to recover possession thereof.”
13. A reading of the provision shows that a person, who is dispossessed from an immovable property without his consent, may file a suit for recovering the possession within six months from dispossession. The intent behind the legislation is to ensure that a
person, who is illegally dispossessed, can seek redressal and his possession can be restored by a proceeding which is summary in nature. The keyword in the provision is, therefore, dispossessed’ and it is from this point that the six months period commences. The question that therefore emanates in the present petition is the triggering point of the cause of action to file the suit i.e. the date of dispossession’
. In this context, I may refer to a judgment of the

Supreme Court in Sudhir Jaggi and Another v. Sunil Akash Sinha Choudhary and Others, (2004) 7 SCC 515, wherein it was held that dispossession would mean not only actual physical dispossession but
also violation of symbolic possession. Black’s Law Dictionary, 8th Edition, defines the word ‘dispossess’ to mean ‘oust or evict someone from property’
.
14. In the light of Section 6 of the Act, as extracted above, the Trial Court correctly posed the question to itself as to when was the Plaintiff dispossessed, entitling him to relief under Section 6 of the
Act. As noted by the Trial Court, the Plaintiff has set out in the plaint that he was in possession of the first floor of the suit property where he was inducted as a tenant by Defendant No. 2 and a Rent Agreement was executed. Plaintiff placed on record electricity
bills dated 05.06.2013, 29.06.2013 and 30.04.2014, which are Ex.PW-1/1 (colly.). Plaintiff also placed on record certified copies of the petition and order-sheets before the ARC, where an eviction petition was filed against him by Ms. Khatoon on 17.07.2013. The last
electricity bill is dated 30.04.2014, which is two months prior to the institution of the eviction proceedings. Besides the said document, as
rightly noted by the Trial Court, nothing has been placed on record by the Plaintiff to establish either his settled possession prior to the institution of the suit or forced dispossession within six months prior
to the suit and was, therefore, unable to discharge the initial burden under Section 101 of the Indian Evidence Act, 1872. According to Section 101, whoever desires any Court to give judgment as to any legal right or liability dependent on existence of facts which he asserts, must prove that those facts exist.

Plaintiff examined PW-2, who was summoned from the Election Office, to prove the Voter ID Card of the Plaintiff, however, the summoned witness deposed that the record being old could not be traced. Therefore, the Plaintiff was unable to place any material on record to show that he was in settled possession of the suit property upto a date which fell within the last six months of the institution of the suit. In fact, in the plaint, it is not even spelt out as to on what exact date, Plaintiff was dispossessed from the suit property. Therefore, going bythe electricity bills which were the only piece of evidence on record toshow possession of the suit property, at the highest, Plaintiff was in possession upto 30.04.2014. The cause of action, if any, arose on 01.05.2014 and the suit was filed on 22.08.2015 and was thus beyond
the period of limitation of six months prescribed under Section 6(2)(a) of the Act. No infirmity can therefore be found with the impugned judgment on this score.

To read the judgment click here

MOINUDDIN versus MR. WASEEM AHMED AND ORS. The Law literates

16Dec, 2023

Mediclaim n life insurance) for all the practising advocate enrolled with Bar council of Delhi and who are the voter of Delhi under the chief minister advocate welfare scheme

IMP. INFORMATION
Dear Members,
This is to inform you that the process of fresh registration (Mediclaim n life insurance) for all the practising advocate enrolled with Bar council of Delhi and who are the voter of Delhi under the chief minister advocate welfare scheme will commence from 01.01.24 at 12 AM can register themselves . The registration may be made through the website
www.cmaws.delhi.gov.in w.e.f. 12.00 A.M. On 01.01.2024 till 11:59:59 P.M. of 15.01.2024.

For Link click here

Notice regarding afresh and mandatory registration Vaibhav Tomar

Vaibhav Tomar Advocate

15Dec, 2023

Section 376(2) (g), 342 read with Section 34 IPC Rape Acquittal Conviction on based on sole testimony of the prosecutrix In the evidence of prosecutrix as well as in the evidence of PW2, it has come on record that there are three houses in between the house of the prosecutrix and house of the accused

CRIMINAL APPEAL NO. 1205 OF 2021
IN THE SUPREME COURT OF INDIA
VED PAL & ANR. VS STATE OF HARYANA
JUSTICE B.R. GAVAI

• Section 376(2) (g), 342 read with Section 34 IPC Rape Acquittal Conviction on based on sole testimony of the prosecutrix In the evidence of prosecutrix as well as in the evidence of PW2, it has come on record that there are three houses in between the house of the prosecutrix and house of the accused, where the incident is alleged to have taken place It is clear that even according to the prosecution, the prosecutrix was dragged from her house to the house of accused It is difficult to believe that, at that time, the prosecutrix did not make any cries/hues It is further to be noted that in the medical evidence, the Doctor has specifically stated that no injuries were found on the person of the prosecutrix Though he has opined that the possibility of the sexual intercourse could not be ruled out, he has also stated that the possibility of intercourse earlier to the MLR cannot be ruled out – It is further to be noted that the FSL report further finds that no semen was found on the clothes of the prosecutrix or on the vaginal swab – Semen was found on the underwear of accused – It is to be noted that the accused have taken a specific defence that there was a civil dispute between grand-father of the appellant(s) and the grand-father of the prosecutrix – No doubt that the said suggestion is once denied by the prosecutrix and on other occasion she has stated that she is not aware about the same – Though the prosecutrix admits the letter addressed by her to accused, in the next blush, she states that she has neither visited the house of the accused nor accused has visited to her house – Taking into consideration the fact that the both the prosecutrix and the appellant(s) reside within the vicinity of three houses, the said version is difficult to believe – Prosecution has failed to prove the case beyond a reasonable doubt, and therefore, the Appellants are entitled to the benefit of the doubt – Appeal allowed.

Relevant Paras:

9. However, in the present case, upon the consideration of the entire evidence together, we find that the prosecution has failed to prove the case against the appellants beyond reasonable doubt.
10. In the evidence of prosecutrix as well as in the evidence of P.W.2, it has come on record that there are three houses in between the house of the prosecutrix and house of the accused Suresh, where the incident is alleged to have taken place.
11. As such, it is clear that even according to the prosecution, the prosecutrix was dragged from her house to the house of accused Suresh. It is difficult to believe that, at that time, the prosecutrix did not make any cries/hues.
12. It is further to be noted that in the medical evidence, the Doctor has specifically stated that no injuries were found on the person of the prosecutrix. Though he has opined that the possibility of the sexual intercourse could not be ruled out, he has also stated that the possibility of intercourse earlier to the MLR cannot be ruled out. It is further to be noted that the FSL report further finds that no semen was found on the clothes of the prosecutrix or on the vaginal swab. The semen was found on the underwear of accused Suresh.

13. It is to be noted that the accused have taken a specific defence that there was a civil dispute between grand-father of the appellant(s) and the grand-father of the prosecutrix. No doubt that the said suggestion is once denied by the prosecutrix and on other occasion she has stated that she is not aware about the same. Though the prosecutrix admits the letter addressed by her to accused Suresh, in the next blush, she states that she has
neither visited the house of the has visited to her house. consideration the fact that prosecutrix and the appellant(s) vicinity of three houses, the difficult to believe.

14. In the totality of the circumstances, we find that the prosecution has failed to prove the case beyond reasonable doubt. The accused are entitled to benefit of doubt.
15. The impugned judgment and order dated 15th July, 2019 passed by the High Court as well as the orders dated 28th January, 2004/29th January, 2004 passed by learned Additional District Judge (Adhoc) are quashed and set aside and the appeal is allowed.

To read the Judgment click here:

VED PAL & ANR. STATE OF HARYANA the law literates Vaibhav Tomar

14Dec, 2023

Specific Relief Act Section 39 Section 151 CPC Suit for declaration and permanent injunction with respect to Indian Olympic Association Election, 2022 Provision of Section 39 provides for mandatory injunction which may be granted by Court in case it is deemed necessary that to prevent breach o obligation

CORAM:
HON’BLE MR. JUSTICE CHANDRA DHARI SINGH

HIGH COURT OF DELHI CS(OS) 804/2022
DR AJIT ANNASAHEB SHINDE ….. Plaintiff
versus
INDIAN ORTHOPAEDIC ASSOCIATION & ORS….. Defendants

• Specific Relief Act Section 39 Section 151 CPC Suit for declaration and permanent injunction with respect to Indian Olympic Association Election, 2022 Provision of Section 39 provides for mandatory injunction which may be granted by Court in case it is deemed necessary that to prevent breach o obligation, certain act is required be omitted or compelled to be done – Such injunction may be granted to aggrieved party when, first, there is obligation on part of defendant to perform certain acts but same breached and secondly, relief sought by aggrieved party is enforceable by court – Therefore, apparent that relief under section 39 of Specific Relief Act, 1963 is not one which may be granted in routine manner – Instead, stricter judicial scrutiny is to be exercised in cases where at the interim stage, mandatory injunction is sought – In present case, plaintiff has sought relief against defendants in form of directions from High Court to preserve data of Elections and to provide him with same – Plaintiff made several allegations against defendants to allege that IOA Elections, 2022 not conducted in transparent, legal and valid manner – Averments pertaining to illegalities in election process are subject matter of suit on merits which are not entered into at this stage for purposes of adjudicating instant application – Hence, dismissal of suit for mandatory injunction upheld.

Relevant Paras:

24. The provision provides for a mandatory injunction which may be granted by a Court in case it is deemed necessary that to prevent a breach of an obligation, a certain act is required be omitted or compelled to be done. Such injunction may be granted to an aggrieved party when, first, there is an obligation on part of the defendant to perform certain acts but the same has been breached and secondly, the relief sought by the aggrieved party is enforceable by the court.
25. The Hon’ble Supreme Court in the matter of Samir Narain Bhojwani vs. Aurora Properties & Investments, (2018) 17 SCC 203, elaborated upon the scope of Section 39 of the Specific Relief Act, 1963 and opined as under: M “24. …… The nature of order passed against the appellant is undeniably a mandatory order at an interlocutory stage. There is marked distinction between moulding of relief and granting mandatory relief at an interlocutory stage. As
regards the latter, that can be granted only to restore the status quo and not to establish a new set of things differing from the state which existed at the date when the suit was instituted. This Court in Dorab Cawasji Warden v. Coomi Sorab Warden [Dorab Cawasji Warden v. Coomi Sorab Warden, (1990) 2 SCC 117] , has had occasion to consider the circumstances warranting grant of interlocutory mandatory injunction. In paras 16 & 17, after analysing the legal precedents on the point as noticed in paras 11-15, the Court went on to observe as follows : (SCC pp. 126-27)
“16. The relief of interlocutory mandatory injunctions
are thus granted generally to preserve or restore the
status quo of the last non-contested status which
preceded the pending controversy until the final
hearing when full relief may be granted or to compel
the undoing of those acts that have been illegally done
or the restoration of that which was wrongfully taken
from the party complaining. But since the granting of
such an injunction to a party who fails or would fail to
establish his right at the trial may cause great injustice
or irreparable harm to the party against whom it was
granted or alternatively not granting of it to a party
who succeeds or would succeed may equally cause
great injustice or irreparable harm, courts have
evolved certain guidelines. Generally stated these
guidelines are:
(1) The plaintiff has a strong case for trial. That is,
it shall be of a higher standard than a prima facie
case that is normally required for a prohibitory
injunction.
(2) It is necessary to prevent irreparable or serious
injury which normally cannot be compensated in
terms of money.
(3) The balance of convenience is in favour of the
one seeking such relief.
17. Being essentially an equitable relief the grant or
refusal of an interlocutory mandatory injunction shall
ultimately rest in the sound judicial discretion of the court to be exercised in the light of the facts and circumstances in each case. Though the above guidelines are neither exhaustive nor complete or absolute rules, and there may be exceptional circumstances needing action, applying
them as prerequisite for the grant or refusal of such
injunctions would be a sound exercise of a judicial
discretion.”
(emphasis supplied)
25. The Court, amongst others, rested its exposition on the dictum in Halsbury’s Laws of England, 4th Edn., Vol. 24,
“948. Mandatory injunctions on interlocutory
applications.—A mandatory injunction can be granted
on an interlocutory application as well as at the
hearing, but, in the absence of special circumstances,
it will not normally be granted. However, if the case is
clear and one which the court thinks ought to be
decided at once, or if the act done is a simple and
summary one which can be easily remedied, or if the
defendant attempts to steal a march on the plaintiff,
such as where, on receipt of notice that an injunction is about to be applied for, the defendant hurries on the work in respect of which complaint is made so that
when he receives notice of an interim injunction it is
completed, a mandatory injunction will be granted on
an interlocutory application.”
26. The principle expounded in this decision has been
consistently followed by this Court. It is well established that an interim mandatory injunction is not a remedy that is easily granted. It is an order that is passed only in circumstances which are clear and the prima facie material clearly justify a finding that the status quo has been altered by one of the parties to the litigation and the interests of justice demanded that the status quo ante be restored by way of an interim mandatory injunction.
[See Metro Marins v. Bonus Watch Co. (P) Ltd. [Metro Marins v. Bonus Watch Co. (P) Ltd., (2004) 7 SCC 478], Kishore Kumar Khaitan v. Praveen Kumar
Singh [Kishore Kumar Khaitan v. Praveen Kumar Singh, (2006) 3 SCC 312] and Purshottam Vishandas
Raheja v. Shrichand Vishandas Raheja [Purshottam
Vishandas Raheja v. Shrichand Vishandas Raheja, (2011) 6 SCC 73 : (2011) 3 SCC (Civ) 204] .]

26. Therefore, it is apparent that the relief under Section 39 of the Specific Relief Act, 1963 is not one which may be granted in a routine manner. Instead, stricter judicial scrutiny is to be exercised in cases where NEUTRAL CITATION No.2023:DHC:3492
CS(OS) 804/2022 Page 10 of 13 at the interim stage, mandatory injunction is sought. As reiterated by the
Hon’ble Supreme Court in the aforementioned judgment, while adjudicating upon an application for mandatory injunction, the important consideration is that such a relief may be granted only to restore the status quo and not to establish a new set of things differing from the state which existed at the date when the suit was instituted. It is only in cases where
the circumstances invite intervention of the court at an interim stage for the reason that there is a likelihood of alteration of the status quo that a
relief of mandatory injunction may be granted.

For read the Judgment click here

DR AJIT ANNASAHEB SHINDE versus INDIAN ORTHOPAEDIC ASSOCIATION & ORS. JUDGMENT DELHI HIGH COURT

10Dec, 2023

Section 182 IPC Section 468 CRPC Quashing of kalandra and proceedings Limitation Period for cognizance Limitation period of one year would start from the date when the cancellation report was prepared by the investigating agency Mere pendency of FIRs /Punjab HC/Queshed

Tekchand Sharma vs State of Punjab

CRMM 6089/20 10/07/23 [ Harsimran Singh Sethi Justice ]

[ PUNJAB HARYANA HIGH COURT ]

Section 182 IPC Section 468 CRPC Quashing of kalandra and proceedings Limitation Period for cognizance Limitation period of one year would start from the date when the cancellation report was prepared by the investigating agency Mere pendency of FIRs on the date of the registration of impugned DD will not extend the limitation period DD was registered after expiry of limitation period one year of preparation of cancellation period Thus, all the proceedings arising from said DD were not maintainable, hence quashed.

Relevant Paras:

4. The petitioner argues that keeping in view the limitation period provided under Section 468 Cr.P.C. as the maximum punishment provided under Section 182 IPC is 6 months imprisonment, the DD No.15, dated 25.01.2020 could have only been got registered within a period of one year of the cancellation report, whereas the same was registered much after the expiry of the limitation provided under Section 468 of the Cr.P.C. hence, the same is liable to be quashed being not maintainable.
5. Learned counsel for the respondent on the other hand submits that though the cancellation report was submitted on the dates mentioned by the petitioner as recorded hereinbefore but as the FIRs were pending, the registration of the DD No.15 dated 25.01.2020, is to be treated within the limitation as provided under Section 468 of Cr.P.C.
6. I have heard learned counsel for the parties and have gone through the record with their able assistance.
7. It is a conceded position that in the present petition, the challenge is to the DD No.15 dated 25.01.2020. It is also a conceded position that the maximum punishment provided, in case the allegations are proved under Section 182 IPC, is 6 months imprisonment. Section 468 of the Cr.P.C. provides limitation for taking cognizance of the offence. Section 468 Cr.P.C., is reproduced herein for the ready reference:-
468. Bar to taking cognizance after lapse of the period of limitation:-
(1) Except as otherwise provided elsewhere in this Code, no Court shall take cognizance of an offence of the category specified in sub-section (2), after the expiry of the period of limitation.
(2) The period of limitation shall be-
(a) six months, if the offence is punishable with fine only;
b) one year, if the offence is punishable with imprisonment for a term not exceeding one year;

c) three years, if the offence is punishable with imprisonment for term exceeding one year but not exceeding three years.
(3) For the purposes of this section, the period of limitation, in relation to offences which may be tried together, shall be determined with reference to the offence which is punishable with the more severe punishment or, as the case may be, the most severe punishment.
8.As per Section 468 (2) Cr.P.C., where the offence is punishable with imprisonment for a term not exceeding one year, the limitation period is one year, hence, in the present case the limitation period would start from the date when the cancellation report was prepared by the investigating agency.
9. In the facts and circumstances of the case, it is clear that it was only uptill 28.09.2019 that the action could have been initiated by the investigating agency under Section 182 of the IPC, whereas the present DD No.15 dated 25.01.2020, was registered after the expiry of the limitation period as provided under Section 468(2) of Cr.P.C.
10. Learned counsel for the respondent has not been able to point out, as to how mere the pendency of the FIRs on the date of the registration of the impugned DD, will extend the limitation especially the allegation alleged in the DD were based upon the cancellation report submitted on 17.09.2018 in respect of FIR No.190 dated 01.08.2016 and cancellation report dated 28.09.2018 in respect of FIR No.130, dated 07.08.2014, registered at Police Station Hasanpur, District Palwal.

For read the judgment click here

CRM-M_6089_2020_10_07_2023_ Tekchand Sharma Vs State of Haryana and others the law literates judgment

9Dec, 2023

Directions for judicial officers From Registrar General Delhi High Court

HIGH COURT OF DELHI: NEW DELHI
No. 12-24/ Registrar General/DHC/2023
Dated: 01.12.2023

Subject: Directions for judicial officers From Registrar General Delhi High Court

(1) The judicial officers shall maintain punctuality and strictly adhere to the Court timings.
(2) The judicial officers shall fix sufficient number of cases every day
so as to keep them substantially busy during the course o f the day.

(3)The judicial officers shall ensure that the VC links of their respective Courts remain functional/ open from 10.AM_to 4.00 PM on every working day.

(4) Wherever judgments have been reserved, the judicial officers shall pronounce the judgments within the time period stipulated in law and where no such period is stipulated, such judgements be pronounced as expeditiously as possible, but not later than 60 days from the date of conclusion of final arguments.

(5) The judicial officers shall ensure that all orders and judgments are
timely uploaded and all relevant data relating to cases is regularly updated on CIS.

(6) The judicial officers shall take all requisite steps for expeditious disposal o f 5 year old and 10 year old cases.
(7) Wherever e-filing is mandated in terms of the E-filing Rules of the High Court o f Delhi, 2021 the judicial officers shall ensure that the provisions in this respect are scrupulously complied with.

For read the circular click here

Directions for Judicial officers Vaibhav Tomar