Blog - Page 24 of 31 - The Law Literates

1Jun, 2023

Criminal Trial Circumstantial evidence Defective investigation The witness to have signed documents which were blank, purportedly used by the police to strengthen this case No direct evidence is available-The Law Literates

SUPREME COURT OF INDIA

MAGHAVENDRA vs STATE OF CHHATTISGARH CRLA 915/16 24/04/23

JUSTICE SANJAY KAROL (SC)

Criminal Trial Circumstantial evidence Defective investigation The witness to have signed documents which were blank, purportedly used by the police to strengthen this case No direct evidence is available which firmly proves the ballistic report, i.e., the expert’s report Neither the expert who analysed and conducted the chemical analysis nor the author of the report stand examined Before arresting the accused, no information was ever supplied to the family members of any of the accused persons The record does not reflect that the house from which there coveries were affected belonged to accused The Investigating Officer’s testimony to be inspiring in confidence The 1.0. did not enter his movement in the case diary He does not associate any of the residents of the area for conducting the search Most importantly he admits that both the memo of arrest as also the recovery not to have been prepared by him or bearing his signature and the same too,

will be helpful to refer to the general principle of cases
revolving around circumstantial evidence as encapsulated by Vijay Shankar v. State of Haryana (2015) 12 SCC 644. The relevant
portion is as follows:
“8. There is no eyewitness to the occurrence and the
entire case is based upon circumstantial evidence. The normal principle is that in a case based on circumstantial evidence the circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established; that these circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused; that the circumstances taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and they should be incapable of explanation of any hypothesis other than that of the guilt of the accused and inconsistent with their innocence vide Sharad Birdhichand Sarda v. State of Maharashtra [Sharad Birdhichand Sarda v. State of Maharashtra, (1984) 4 SCC 116 : 1984 SCC (Cri) 487]. The same view was reiterated in Bablu v. State of Rajasthan [Bablu v. State of Rajasthan, (2006) 13 SCC 116 : (2007) 2 SCC (Cri) 590].”
13. In light of the fact that all the coaccused who had preferred appeals stand acquitted by the Court below, therefore, while fully appreciating the testimony of this witness, this Court confines the

8
discussions only concerning the present appellant, namely Pankaj Singh.
14. Interestingly, neither of the independent witness (PW 6 and PW 7) supported the prosecution case. Despite extensive cross examination conducted by the Public Prosecutor, nothing substantial could be elicited from their testimonies indicating any guilt of the accused. Noticeably, both the witnesses are rustic villagers working as daily wagers, have deposed to have signed blank papers, and are not residents of the area.
15. A perusal of the testimony of PW6 unrefutably reveals the witness to have signed documents which were blank, purportedly used by the police to strengthen this case for the commission of the offence.

Conclusion

45. In the considered opinion of the Court, the High Court, without appreciating the testimonies of the witnesses mentioned above in their true import and meaning, and without having any discussion concerning the complicity of the accused, in a perfunctory manner held the prosecution to have established the case, which is entirely circumstantial in nature, against the present appellant. Significantly, the High Court holds that the evidence reveals that “in all human probability the act must have been done by the accused”. Inter alia, it

Dated : 24th April, 2023; Place : New Delhi.
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is this finding which we find to be erroneous, for the principle of determining the guilt of the accused in a case involving circumstantial evidence is not that of probability but certainty and that all the evidence present should conclusively point towards only a singular hypothesis, which is the guilt of the accused, Pankaj Singh.
46. Given the above, the Judgment dated 14.1.2016 passed by the High Court of Chhattisgarh at Bilaspur in Criminal Appeal No.468 of 2013 titled Maghavendra Pratap Singh @ Pankaj Singh v. State of Chhattisgarh is set aside and the appeal is allowed.

have many corrections and overwriting, thus reducing the correctness and authenticity of this document Order of conviction passed by High Court is set aside Appeal is allowed.

For more read the Judgment, click here

Pankaj singh vs state of CHATTISGARH Judgement_24-Apr-2023 VAIBHAV TOMAR

29May, 2023

Order 37 Rule 3 CPC Leave to defend application Two stands have been taken by the defendant bank, firstly, that though the four bank guarantees were issued but they were not by the duly authorised and competent officer/ Laws

ENGINEERING PROJECTS(INDIA) LIMITED vs MIZORAM RURAL BANK CSOS 2038/09 dated 10/10/17 Justice Mukta Gupta

DELHI HIGH COURT

Order 37 Rule 3 CPC Leave to defend application Two stands have been taken by the defendant bank, firstly, that though the four bank guarantees were issued but they were not by the duly authorised and competent officer and were issued in connivance and collusion with the plaintiff and contractor and secondly, that the four bank guarantees were forged and fabricated for the reason no corresponding records of the four bank guarantees were available with the bank Plaintiff has placed on record not only the four bank guarantees but also letter sent by the Chairman of the defendant bank noting that the four bank guarantees in question were issued by their Vaivakawn Branch, jointly by the Branch Manager and the second officer, however, they were not vested with the power to issue bank guarantees The fact remains that the plaintiff proceeded with the work based on the four bank guarantees and hence it is a case for grant of conditional leave to defend to the defendant bank in view of its two contrary stands.

The defendant bank is thus granted leave to defendant subject to its depositing a sum of Rs. 1,18,37,396/- the amount due on the date of filing of the suit with the Registrar General of this Court within eight weeks Application is disposed off.

for Judgment Click Here ~

Judgment delhi high court: justice Mukta gupta:. Vaibhav tomar DBA

28May, 2023

Order 8 Rule 1A(3) CPC Leave of court to produce additional documents Sub rule (3) provides a second opportunity to the defendant to produce the documents which ought to have been produced in the court along with the written statement/Civil Law/Latest Update/Law Literates

Justice Abdul Nazeer & Justice Sanjiv Khanna

SUPREME COURT OF INDIA

SUGANDHI vs RAJKUMAR CA 3427/20 13/10/20

Order 8 Rule 1A(3) CPC Leave of court to produce additional documents Sub rule (3) provides a second opportunity to the defendant to produce the documents which ought to have been produced in the court along with the written statement, with the leave of the court Discretion conferred upon the court to grant such leave is to be exercised judiciously – While there is no straight jacket formula, this leave can be granted by the court on a good cause being shown by the defendant – Defendants have filed an application assigning cogent reasons for not producing the documents along with the written statement – They have stated that these documents were missing and were only traced at a later stage It cannot be disputed that these documents are necessary for arriving at a just decision in the suit (Appeal allowed)

for Judgment Click Here ~
Supreme Court Judgement_13-Oct-2020:Law Literates-Vaibhav Tomar

27Apr, 2023

Now the advocates and litigants can get the uncertified copies of evidence or misc. order directly from court by giving an application and appropriate court fee

OFFICE OF THE PRINCIPAL DISTRICT & SESSIONS JUDGE (HOs) : DELHI

ORDER

In compliance of letter No. 220/Rules/DHC/2023, dated 18.04.2023,

received from the Hon’ble High Court of Delhi/New Delhi and in continuation to this office Order No.46409-46769/Misc./Gaz/2010, dated 03.08.2010, all the Judicial Officers are required to provide to the litigants uncertified copies of evidence and miscellaneous orders on making an application for supply of uncertified copy either by the litigant or by the counsel for the litigant on payment of the prescribed court fee payable in respect of certified copies, in the form of Court Fee Stamps.

The accused persons in Judicial Custody and the Public

Prosecutor/Addl./ Asst Public Prosecutor may be provided uncertified copies of evidence and miscellaneous orders free of cost, such sought uncertified copies be provided under the seal and signature of the Reader of the Concerned Court.

16 1036 32305-46 sales as /60 / 2028

Copy forwarded for information & necessary action to : –

124•4-23,

(GIRISH KATHPALIA)

Principal District & Sessions Judge (HQs)

Delhis

27Apr, 2023

Penal Code, 1860 (IPC) – Sections 302, 397 and 450 – Murder – Conviction and sentence – Sequence of events unfolded in quick succession during the intervening night of 21.08.2008 and 22.08.2008, leading to not only identification of the accused by the witnesses present but also their apprehension and arrest, apart from seizure of the stolen gold ornaments and cash from their possession, it is amply clear that there was no time or possibility for the police to hoist a false case upon them – Minor discrepancies and shortcomings in the statements made by witnesses after passage of a few years would necessarily have to be discounted in such a scenario – Conviction and sentence is upheld

THE SUPREME COURT OF INDIA

_*DAKKATA BALARAM REDDY AND ANOTHER — Appellant VS STATE OF ANDHRA PRADESH AND ANOTHER — Respondent*_

Criminal Appeal No. 1295 of 2019

DATE OF DECISION:- 21-04-2023

HEADNOTE

Penal Code, 1860 (IPC) – Sections 302, 397 and 450 – Murder – Conviction and sentence – Sequence of events unfolded in quick succession during the intervening night of 21.08.2008 and 22.08.2008, leading to not only identification of the accused by the witnesses present but also their apprehension and arrest, apart from seizure of the stolen gold ornaments and cash from their possession, it is amply clear that there was no time or possibility for the police to hoist a false case upon them – Minor discrepancies and shortcomings in the statements made by witnesses after passage of a few years would necessarily have to be discounted in such a scenario – Conviction and sentence is upheld

JUDGMENT

Sanjay Kumar, J

_*By judgment dated 30.08.2016 passed in Sessions Case No. 81 of 2012, the learned VI Additional District and Sessions Judge, Sompeta, held the accused therein, viz., Dakkata Balaram Reddy (A1) and Chinapana Gopi (A2), guilty of offences punishable under Sections 302, 397 and 450 IPC and sentenced them accordingly. Their conviction and sentence stood confirmed when the High Court for the State of Telangana and the State of Andhra Pradesh dismissed Criminal Appeal No. 915 of 2016 filed by the two accused, vide judgment dated 03.10.2018. Aggrieved thereby, both the accused are before this Court*_

_*2. Heard Shri R. Basant, learned senior counsel, appearing for the appellants/accused; Shri Mahfooz Ahsan Nazki, learned counsel, appearing for the State of Andhra Pradesh; and Shri Y. Raja Gopala Rao, learned counsel for the second respondent, viz., the complainant*_.

_*3. The case of the prosecution: The complainant, Vetcha Kesava Rao (PW-1), is a resident of Ichapuram and his house is situated on Chinnamedaraveedhi, wherein he also did his gold and silver business. A1 is a civil contractor while A2, his brother-in-law, is an ex-serviceman. On 21.08.2008 at about 9.00 pm, in PW-1s absence, A1 and A2 trespassed into his house concealing iron rods under their shirts and brutally killed his son, Vetcha Kiran Kumar (deceased No.1), and his wife, Vetcha Venkatagopala Lakshmi (deceased No.2); robbed gold ornaments, weighing about 3.543 Kgs., and cash of Rs. 18,340/-. At about 11.00 pm on the same night, PW-1 lodged a written report against them at Ichapuram Town Police Station. Thereupon, Crime No. 61 of 2008 was registered by the Sub-Inspector of Police, Ichapuram Rural P.S. (PW-23), and he informed the Inspector of Police who was holding additional charge of Ichapuram Circle (PW-26). PW-26 immediately took up investigation. He visited the scene of offence and held an inquest over the dead bodies in the presence of mediators. Upon receiving information, he arrested A2 at 01.15 am on 22.08.2008 at Radhamveedhi Jagannadhaswamy Temple, Ichapuram, in the presence of mediators and recovered from his possession part of the stolen property, i.e., gold ornaments weighing 1748 grams 750 milligrams and cash of Rs. 18,340/-. He then arrested A1 at 04.00 am on 22.08.2008 from Gollaveedhi, Ichapuram, and recovered gold ornaments weighing 1794 grams 370 milligrams from his possession in the presence of mediators. Thus, PW-26 recovered the gold ornaments weighing 3.543 Kgs. from the accused along with the cash. He also examined several witnesses. He went to the scene of the offence and prepared a Rough Sketch. At his request, the Inspector of Police, FPB Unit, Srikakulam (PW-24), went to the scene of the offence along with the Clues Team and developed four chance fingerprints. Thereafter, the Inspector of Police, Ichapuram Circle (PW-27), took up further investigation. He visited the scene of offence, examined witnesses and recorded their statements. After completion of the investigation, he filed a charge sheet against the accused. Charges were framed against them under Sections 302, 379, 394 r/w 397, 411 and 450 IPC. They pleaded not guilty and claimed to be tried*_

4. During the trial, the prosecution examined 27 witnesses and marked Exs.P-1 to P-21 in evidence, apart from producing Material Objects (MOs) 1 to 99. The accused did not adduce evidence but were examined under Section 313 Cr.P.C. Upon considering the evidence and the MOs, the learned VI Additional District and Sessions Judge, Sompeta, held the accused guilty of the offences punishable under Sections 302, 397 and 450 IPC. They were sentenced to undergo imprisonment for life under Section 302 IPC and to pay fine of Rs. 2,000/- each; imprisonment for a period of 10 years under Section 450 IPC and to pay a fine of Rs. 2,000/-each; and imprisonment for 7 years under Section 397 IPC. Further imprisonment was directed for default in payment of fines.

5. Aggrieved thereby, the accused filed Criminal Appeal No. 915 of 2016 before the High Court. By judgment dated 03.10.2018, a Division Bench of the High Court opined that the circumstantial evidence, in corroboration with the medical evidence, the weapons used and the manner in which the attack was made, established that the accused intended to cause the death of the inmates of the house of PW-1, fulfilling the essential ingredients of the offence under Section 300 IPC, punishable under Section 302 IPC. The High Court, therefore, concluded that there was no merit in the case and dismissed the same. Hence, this appeal by special leave under Article 136 of the Constitution.

6. At the outset, it would be apposite to note the scope of jurisdiction under Article 136 of the Constitution in a case of this nature, where the Trial Court and the High Court have concurrently returned findings of guilt against the accused. In Pappu Vs. The State of Uttar Pradesh [(2022) 10 SCC 321], this Court pointed out that, in an appeal by special leave under Article 136 of the Constitution against concurrent findings of fact by the Trial Court and the High Court after appreciation of evidence, each and every finding of fact cannot be contested and such an appeal cannot be dealt with as if this Court is another forum for reappreciation of evidence. It was observed that it is only if the assessment by the Trial Court and the High Court can be said to be vitiated by any error of law or procedure or misreading of evidence or in disregard to the norms of judicial process, leading to serious prejudice or injustice, that this Court may, and in appropriate cases would, interfere in order to prevent grave or serious miscarriage of justice, but such a course is to be adopted only in rare and exceptional cases of manifest illegality. It was further observed that such an appeal is not a regular appeal and this Court would not interfere with concurrent findings of fact based on pure appreciation of evidence and it is not the scope of such appeal that this Court would enter into reappreciation of evidence so as to take a view different from that taken by the Trial Court and approved by the High Court.

7. Earlier, in Sambhu Das alias Bijoy Das and another Vs. State of Assam [(2010) 10 SCC 374], this Court affirmed that Article 136 of the Constitution does not confer a right of appeal on a party and only confers discretionary power on this Court to be exercised sparingly to interfere in suitable cases where grave miscarriage of justice has resulted from illegality or misapprehension or mistake in reading evidence or from ignoring, excluding or illegally admitting material evidence.

8. This being the settled legal position, the case on hand may now be examined. There are no eye-witnesses to the actual commission of the offence and the case is built on circumstantial evidence. Trite to state, in such a situation, the chain of evidence must be so complete as to not leave any reasonable grounds for a conclusion consistent with the innocence of the accused; the accused must be and not merely may be guilty, before the Court can convict, and the facts established should be consistent only with the hypothesis of the guilt of the accused [See Hanumant Govind Nargundkar Vs. State of M.P. (AIR 1952 SC 343)].

9. In this context, the following facts may be noted: Vetcha Kesava Rao (PW-1) stated that, on 21.08.2008 at about 05.00 pm, he went to Sompeta for business purposes and received a call from PW-7/LW-8 at about 09.30 pm that the accused went to his house at about 09.00 pm and that they heard loud cries and shouts coming from the house. PW-7 then told him that after some time A1 ran away with small bundles of gold while he and LWs 6 & 7 (PW-4 and PW-6) were watching and A2 fled from upstairs towards the backside portion. PW-1 stated that he returned from Sompeta and reached his house at about 10.00 or 10.30 pm and by that time, people had gathered outside his house and all the doors of his house were open. His son was lying in a pool of blood near the sofa in the shop room and there was an iron rod on the floor, and in the southern side room, his wife was lying in a pool of blood and he found another iron rod near her. All the gold ornaments were missing from the shop almirah and the show case. He then went to the police station and lodged a report (Ex.P-1). PW-1 stated that he told the police that his wife and son were killed by the accused. He also informed the police that he had lost gold ornaments and cash of Rs. 18,340/-. In his cross-examination, he stated that the accused were his customers and used to purchase gold or take money from him. He denied knowledge of A1 being a contractor and his financial position.

10. The Civil Assistant Surgeon, Community Health Centre, Ichapuram (PW-19), conducted the post-mortem examination of the body of deceased No. 1. He issued a post-mortem certificate (Ex.P-14) stating that the cause of his death was shock due to brain injury and hemorrhage following a head injury. Another Civil Assistant Surgeon at the Community Health Centre, Ichapuram (PW-20), conducted the autopsy over the body of deceased No. 2 and issued a post-mortem certificate (Ex.P-15) stating to the same effect as to the cause of her death. Both PW-19 and PW-20 denied the suggestion that the injuries on the bodies of the deceased could have been caused by falling from the first floor. In effect, it can safely be said that their deaths were homicidal in nature. More so, as blood-stained iron rods (MOs1 and 2) were found near the bodies.

11. Though there were no eye-witnesses to the actual killings, there were three separate witnesses who spoke of seeing one or both of the accused running away from the house of PW-1 at that late hour on the fateful night. PWs 4, 6, and 10 are those witnesses. PW-4 stated that he was also doing gold and silver business and knew PW-1 as well as the accused. He stated that, on 21.08.2008 at about 09.00 pm, he and PW-6 were going to his sisters house at Dabburi Street via Medaraveedhi and at that time, they heard loud voices coming from PW-1s house. They shouted as to what was happening inside the house. A number of people gathered at the house. Then, A1 came out from the house of PW-1 and ran away. After that, the police came to the house of PW-1. Along with them, they all went inside the house of PW-1 and found that the wife and son of PW-1 were lying dead. PW-1s son was lying in the shop room and the body of PW-1s wife was at the bath room which was after the shop room. PW-1 then returned from camp. During the investigation, on 11.12.2008, his statement was recorded under Section 164 Cr.P.C. by the Judicial First Class Magistrate, Sompeta (Ex.P2). At this stage, PW-4 was declared hostile and was cross-examined by the prosecution. He denied having stated before the police that the accused had entered the house of PW-1 and had stolen gold ornaments and cash. In his cross-examination by the defence, PW-4 stated that PW-1s house was in the centre of Chinnamedaraveedhi and on both sides, houses were situated. He stated that he did not know whether PW-1 used to advance loans on pledging of gold ornaments.

12. PW-6 stated that, on 21.08.2008 at about 09.00 pm, he and PW-4 were going towards his house and PW-4 was then going to his sisters house via Chinnamedaraveedhi. By the time they reached PW-1s house, they heard cries and shouted as to what happened. In the meanwhile, 10 to 15 people gathered there. Then, A1 came outside from PW-1s house and ran away on a bike with a bag on his shoulder. After 5 or 10 minutes, A2 jumped from the upstairs of PW-1s house to the neighbouring house and from there, he jumped down. At that time, A2 was also holding a bag. After one hour, PW-1 returned to his house and the police also came there. In the first room, i.e., the gold shop, PW-1s son was found in a pool of blood and his wifes body was found near the bathroom towards the backside of the shop. Iron rods were found near the bodies. In his cross-examination, PW-6 stated that about 3 or 4 people were present at PW-1s house by the time they were passing there. He further stated that A1 was a contractor and possessed 8 lorries. He however disclaimed knowledge of A1 doing gold business or having constructed a temple. He could not say the colour of the wearing apparel and the colour of the bags carried by the accused.

13. PW-7 stated that, on 21.08.2008 at about 09.00 pm, he closed his kirana shop and was returning home and by the time he reached PW-1s house, he heard loud sounds coming from PW-1s house and some people had gathered there. He stated that he called PW-1 and informed him that loud sounds were coming from his house and PW-1 said that he would return home. At about 10.30 pm, PW-1 returned to the house and a police report was given. After the police came, they went inside the house and on the left side near the sofa in the shop room, PW-1s son was lying in a pool of blood. His wife was lying in a pool of blood by the bathroom and iron rods were present near the bodies. He further stated that all the things were shattered in the house of PW-1 and around 4 Kgs. of gold and cash was stolen/lost. In his cross-examination, he stated that, by the time the police came there, he was present outside PW-1s house. Significantly, PW-7 did not say anything about the presence of the accused or about informing PW-1 of their entering and leaving his house.

14. PW-10 resided in the 2nd house opposite the house of PW-1. He stated that, on 21.08.2008 at about 09.30 pm, while he was taking dinner, he heard sounds from outside. When he came out, he saw around 10 people gathered in the street. Meanwhile, A1 ran away from PW-1s house and then A2 ran away from PW-1s house. Both of them were holding bags. Later, he came to know that the accused had murdered PW-1s wife and son and ran away with gold. He stated that PW-1 came to the house within half an hour or one hour. Police also came to the house. He went to the house and saw the bodies of deceased. In his cross-examination, he admitted that he did not state before the police that A1 and A 2 were holding bags and left PW-1s house in a hurry.

15. Now, coming to the apprehension and arrest of the accused. PW-17 stated that he was the Village Revenue Officer of Koligam Village and on 22.08.2008, at around 01.00 am, he was called to Ichapuram Town Police Station by the Inspector of Police. LW-27 was already there by then. He stated that both of them and the police went to Radham Street near Jagannadhaswamy Temple. At that time, one person was seen running away from that place and the police chased and caught hold of him. He was holding a bag in his hand. He stated that his name was Chinapana Gopi (A2) and he allegedly confessed to commission of the crime. The bag was seized and opened in their presence. They found gold ornaments and cash of Rs. 18,340/- inside. At about 04.00 or 04.30 am on the same day, he went to Ichapuram Town Police Station and both the accused were present there. The police then seized the blood-stained clothes of both the accused in his presence. In his cross-examination, he stated that he did not remember the colour of the bag seized from A2 or the number of ornaments seized.

16. PW-16, the Village Revenue Officer, Purushottapuram, Ichapuram Mandal, stated that, on 22.08.2008 at about 02.30 am, the Inspector of Police, Ichapuram, called him and LW-25 and both of them, along with the Inspector of Police and other police staff, went to Gollaveedhi in a police jeep. On seeing the police jeep, one person started running but the police chased and caught hold of him. He was brought before the Inspector of Police and on questioning as to why he was running, he identified himself as Dakkata Balaram Reddy (A1). He allegedly confessed to having killed PW-1s wife and son and taking gold ornaments. Upon being questioned about the ornaments, he brought the ornaments in a bag from his room, i.e., about 30 items. PW-16 further stated that, at about 04.40 am on the same day, the Inspector of Police called him to the Police Station and he along with LW-26 went there. The police seized the yellow T-shirt (MO 97) and light cement-coloured jeans pant (MO 98) of A1 along with the blood-stained jeans of cement color (MO 99) of A2.

17. PW-26 worked as the Inspector of Police at Sompeta from 13.10.2006 to 19.09.2008. He stated that, on 21.08.2008, while he was holding additional charge of Ichapuram Circle, he received information from the Sub-Inspector of Police, Ichapuram Rural Police Station (PW-23) about the subject crime. He immediately rushed there and also flashed radio messages for conducting vehicle checking to apprehend the accused. He visited the scene of offence at 11.45 pm and noted the dead bodies. In the meanwhile, he received information about the movement of the culprits and left the scene of the offence. He secured two mediators and along with his staff, he went to Radhamveedhi, Jagannadhaswamy Temple, at about 01.15 am and noticed one person, carrying a hand bag, trying to escape upon seeing the police. He apprehended the person (A2) and questioned him about the contents of the bag. He interrogated him and he confessed to the commission of the offence. The bag carried by him was verified and gold ornaments along with cash of Rs. 18,340/- were found therein. Then, PW-26, along with the accused, his staff and mediators, rushed to the house of the other accused, Dakkata Balaram Reddy, situated on Gollaveedhi of Ichapuram Municipality, and upon seeing the police, one person (A1) tried to escape. He was apprehended and interrogated in the presence of mediators. He also confessed to commission of the offence and corroborated the version given by the other accused. PW-26 stated that he then questioned him about the stolen property and he fetched a bag from the side room of the house along with blood-stained clothes and handed over the same to him. The bag contained gold ornaments. PW-26 then arrested A1 at about 04.00 am and brought both the accused to the police station along with the seized property. Upon further questioning as to their clothes at the time of the offence, they disclosed that they were wearing the same clothes at the time of offence. He then secured some other clothes and seized their blood-stained clothes.

18. PW-27 stated that he worked as the Inspector of Police, Ichapuram, from 09.02.2008 to 09.05.2010. He stated that he took up further investigation in the case on hand on 31.08.2008 and that PW-26 had conducted investigation till then. He spoke of the Test Identification Parade of the seized gold ornaments conducted in the presence of mediators.

19. The Inspector of Police, FPB Unit, Srikakulam, was examined as PW-24. He stated that, on receipt of a telephone message from the Police Station, Ichapuram, he visited the scene of offence along with a Clues Team on 22.08.2008 at about 06.00 am and developed four chance fingerprints on a glass show case and one chance fingerprint on a cream-coloured plastic box. He stated that he found photocopies of two of the chance prints unfit for comparison but the chance prints marked as A, D and E were fit for comparison. The fingerprints marked as A and E tallied with the fingerprints of the two accused. In his cross-examination, he stated that he did not receive the specimen fingerprints of the accused through the Court but from the Investigating Officer.

Insofar as this fingerprint evidence is concerned, we find that the same was liable to be eschewed from consideration as the accused were already in custody by the time the so-called chance fingerprints were lifted from the scene of the offence. More importantly, the prescribed procedure was not followed in gathering this so-called evidence. No report was drawn up at the time of lifting of these chance prints in the presence of credible witnesses. Similarly, no report was prepared even at the time the specimen fingerprints of the accused were taken. Therefore, PW-24s evidence that two of the chance prints tallied with the fingerprints of the accused cannot be given any weightage. Failure in following the due procedure rendered the findings of PW-24 wholly unreliable.

20. Shri R. Basant, learned senior counsel, would contend that there is no evidence of any light being available outside the house of PW-1, whereby the witnesses could have seen the accused running away with bags. We are of the opinion that it would not be open to the accused to raise this factual aspect at this late stage. It was never put in issue that the area in question did not have adequate street lights, whereby the evidentiary value of the statements of witnesses as to what they had seen could be attacked. More so, as it has come on record that apart from the jewellery shop of PW-1, there were other jewellery shops in the vicinity and the police station itself was just half a kilometer away. If that was so, it is difficult to believe that there would be no street lighting in such an area. In any event, this Court does not propose to initiate an inquiry into this factual aspect, which was not raised either before the Trial Court or before the High Court.

21. Undeniably, there are some discrepancies and contradictions in the prosecutions case. There is no clarity as to the sequence of events at the scene of offence on the fateful night. Witnesses gave differing versions of the time of the arrival of the police and as to what they saw and said. There is no corroboration of PW-1s statement that it was PW-7 who informed him of the accused entering and exiting his house, as PW-7 said nothing to that effect. Further, recovery of the clothes worn by the accused at that time is also shrouded in doubt. One version is that they were still wearing them at the police station and they were seized there by the police, after providing them other clothes, while the other is that A1 handed over blood-stained clothes to PW-26 along with the bag of ornaments at his house. However, some differences in the testimonies of witnesses as to what they saw and said are to expected given the passage of time. Be it noted that the subject incident occurred on the night of 21.08.2008 and the depositions of the witnesses were recorded by the Trial Court in the later part of 2015. In any event, as already noted hereinbefore, this Court would not undertake a roving inquiry on factual issues or reappreciate the evidence, unless it is brought out that there is some perversity in appreciation of evidence by the Trial Court or the High Court, leading to manifest miscarriage of justice. Trivial defects in investigation or process are not enough, in themselves, to disbelieve the prosecutions case. To acquit solely on the ground of defective investigation would be adding insult to injury [See Karnel Singh Vs. State of M.P. {(1995) 5 SCC 518}]

22. Similarly, identification of the gold ornaments by PW-1 during the TIP does not raise any red flags. Order 474 of the Andhra Pradesh Police Investigation Manual, Part I, Vol. IIA, provides that identification of properties has to be done in the Court premises, under the order of the Magistrate, either by the Magistrate or through independent witnesses, if the properties are already sent to Court, and in other cases, independent witnesses should conduct the process of identification of the property in the absence of the police, under a Panchnama. The properties to be identified should be mixed with similar articles and the witnesses should be asked to identify them. This being the procedure that was followed in the case on hand, there is no reason to doubt PW-1s identification of the seized gold ornaments as those taken from his shop.

23. In this regard, it may also be noted that A2 was found in possession of a bag carrying some of the stolen ornaments and, therefore, such possession itself speaks against him, in terms of Section 114 (a) of the Indian Evidence Act, 1872. Being a fact especially within his knowledge, it was for A2 to explain as to how he came to be in possession of those stolen ornaments, under Section 106 of the Indian Evidence Act, 1872. However, no explanation was offered by him. As regards A1, it is the prosecutions case that he confessed to commission of the crime and upon being questioned as to the stolen gold ornaments, he himself went into the other room in his house and brought out a bag containing the gold ornaments. This part of his confession would, therefore, be admissible under Section 27 of the Indian Evidence Act, 1872, as it led to the recovery of the stolen gold ornaments.

24. No doubt, recovery of this stolen property from the accused would not be sufficient in itself to convict them for murder. However, the weight of the evidence on record, taken cumulatively, unerringly points to the guilt of the accused, leaving no room for second thoughts. The inescapable fact remains that PWs 4, 6, and 10, who were witnesses independent of each other and who had no animosity or enmity with the accused, spoke in unison about seeing them running away from the house of PW-1 of the fateful night with bags in their possession. No explanation is forthcoming as to why three separate witnesses would choose to implicate the accused falsely.

25. Given the totality of the case, which demonstrates that the sequence of events unfolded in quick succession during the intervening night of 21.08.2008 and 22.08.2008, leading to not only identification of the accused by the witnesses present but also their apprehension and arrest, apart from seizure of the stolen gold ornaments and cash from their possession, it is amply clear that there was no time or possibility for the police to hoist a false case upon them. Minor discrepancies and shortcomings in the statements made by witnesses after passage of a few years would necessarily have to be discounted in such a scenario.

26. Viewed thus, we find no patent illegality or manifest injustice having been committed by the Trial Court and the High Court, warranting exercise of discretionary jurisdiction under Article 136 of the Constitution.

27. The Criminal Appeal is, therefore, found to be bereft of merit and it is dismissed accordingly.

27Apr, 2023

Civil courts cannot intervene in matters related to SARFAESI Act which are under the purview of DRT or DRAT: Supreme Court

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Civil courts cannot intervene in matters related to SARFAESI Act which are under the purview of DRT or DRAT SC

SUPREME COURT OF INDIA

Punjab and Sind Bank

Frontline Corporation Ltd.

B.R. GAVAI AND ARAVIND KUMAR, JJ.

CIVIL APPEAL NO. 2924 OF 2023

APRIL 18, 2023

FEMA, BANKING & INSURANCE : Jurisdiction of civil court is barred in respect of matters which a DRT or an Appellate Tribunal is empowered to determine in respect of any action taken ‘or to be taken in pursuance of any power conferred under SARFAESI Act’ – Prohibition covers even matters which may be taken cognizance of by DRT though no measure in that direction has so far been taken under subsection (4) of Section 13 – Any matter in respect of which an action may be taken even later on, civil court shall have no jurisdiction to entertain any proceeding thereof – To a very limited extent jurisdiction of civil court can also be invoked, where for example, action of secured creditor is alleged to be fraudulent or his claim may be so absurd and untenable which may not require any probe whatsoever or to say precisely to extent the scope is permissible to bring an action in civil court in cases of English mortgages.

27Apr, 2023

Moratorium under IBC applies only to CD, not directors, Natural persons would still be liable under Chapter XVII of NI Act

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Moratorium under IBC applies only to CD, not directors, Natural persons would still be liable under Chapter XVII of NI Act

FEMA, BANKING & INSURANCE : Moratorium provision contained under section 14 (1) of IBC would apply only to a corporate debtor and natural persons i.e. directors of corporate debtor mentioned in section 141 of N.I. Act would continue to be statutorily liable under Chapter XVII of N.I. Act
■■■

HIGH COURT OF KERALA
PVS Memorial Hospital
v.
Dr. Satheesh Iype
A. BADHARUDEEN, J.
CRL. MC NO. 8157 OF 2022
JANUARY 5, 2023

Section 141, read with section 138, of the Negotiable Instruments Act, 1881 and section 14 of the Insolvency and Bankruptcy Code, 2016 – Offence by Companies – Whether moratorium provision contained under section 14(1) of IBC would apply only to a corporate debtor, natural persons mentioned in section 141 would continue to be statutorily liable under Chapter XVII of N.I. Act – Held, yes – Whether vicarious liability under sub-section (2) to section 141 can arise because of director, manager, secretary, or other officer’s personal conduct, functional or transactional role, notwithstanding that person was not in overall control of day-to-day business of company when offence was committed – Held, yes – Whether thus, prosecution against corporate debtor for offence punishable under section 138 would stand deferred subject to outcome of moratorium proceedings, under section 14 of IBC, while allowing continuance of prosecution against directors/natural persons – Held, yes [Paras 10 and 13]

FACTS

■ The complainant lodged complaint under section 142 before the Magistrate Court alleging that the accused company and its directors committed offence punishable under section 138 since the cheque jointly issued by accused of Rs. 37,20,000/- got dishonoured for want of funds, when the cheque was presented for collection.
■ While seeking quashment of complaint, accused corporate debtor and its directors in instant petition placed reliance on a three Bench decision of the Apex Court [(2021) 6 SCC 258], P.Mohanraj v. Shah Brothers Ispat (P.) Ltd. [2021] 125 taxmann.com 39/167 SCL 327 to contend that, no prosecution against the accused and its Directors could be possible after moratorium issued in terms of section 14(1). It was specifically pointed out that, moratorium order under section 14(1) had been passed in relation to accused. Therefore, no prosecution against the accused was permissible.
■ Secondly, it was argued that, in order to prosecute the Directors of a company, there would be narration in the complaint with regard to their specific roles in the affairs of the company and otherwise the prosecution under the principles of vicarious liability could not be proceeded.

HELD

■ The legal position emerges is that moratorium provision contained in sec.14 (1) would apply only to corporate debtor and the non-corporate debtor/debtors mentioned in section 141, continuing to be statutorily liable under Chapter XVII of the N.I Act [Para 9].
■ In view of the legal position settled by the Three Bench of the Apex Court, in P.Mohanraj v. Shah Brothers Ispat (P.) Ltd. [2021] 125 taxmann.com 39/167 SCL 327, holding the view that, moratorium provision contained under section 14(1) would apply only to a corporate debtor and the natural persons mentioned in section 141 continuing to be statutorily liable under Chapter XVII of the N.I.Act. Therefore, the complaint against the accused cannot be quashed, simply on the ground of moratorium order. However, the prosecution against the accused being corporate debtor can be kept in abeyance till finalization of the moratorium proceedings, while allowing prosecution against natural person i.e. petitioners-directors of accused company. [Para 10]
■ The legal position is not in dispute and the same is as held in Dilip Hariramani v. Bank of Baroda [2022] 138 taxmann.com 186/172 SCL 281 (SC). Thus, as regards to the application of vicarious liability in terms of criminal law as provided under section 141 of the N.I. Act is concerned, the same cannot be fastened because of the civil liability. Vicarious liability under sub-section (1) to section 141 can be pinned when the person is in overall control of the day-to-day business of the company or firm. Vicarious liability under sub-section (2) to section 141 can arise because of the director, manager, secretary, or other officer’s personal conduct, functional or transactional role, notwithstanding that the person was not in overall control of the day-to-day business of the company when the offence was committed. Vicarious liability under sub-section (2) is attracted when the offence is committed with the consent, connivance, or is attributable to the neglect on the part of a director, manager, secretary, or other officer of the company. [Para 13]
■ Thus, the necessary ingredients as has been held in Dilip Hariramani’s case could be gathered from the averments in the complaint and the rest of the contentions raised by the accused shall be matter of evidence, during trial. [Para 16]
■ To upshot, it is held that, the twin contentions raised by the petitioners to quash complaint, found to be not sustainable. However, the prosecution against the accused company the corporate debtor shall stand deferred subject to the outcome of moratorium proceedings, while allowing continuance of prosecution against director of accused the non-corporate debtors/natural persons. Accordingly, instant petition stands disposed of. [Para 17]

CASE REVIEW

Dilip Hariramani v. Bank of Baroda [2022] 138 186/172 SCL 281 (SC) (para 16) and P.Mohanraj v. Shah Brothers Ispat (P.) Ltd. [2021] 125 39/167 SCL 327 (SC) (para 10) followed.

CASES REFERRED TO

P.Mohanraj v. Shah Brothers Ispat (P.) Ltd. [2021] 39/167 SCL 327 (SC) (para 6), Lalankumar Singh v. State of Maharashtra 2022 SCC OnLine SC 1383 (para 8), Dilip Hariramani v. Bank of Baroda [2022] 186/172 SCL 281 (SC) (para 8) and Ashoke Mal Bafna v. Upper India Steel Mfg. & Engg. Co. Ltd. [Criminal Appeal No. 529 of 2017, dated 6-3-2017] (para 12).
V. Krishna Menon, J. Surya and Prinsun Philip for the Petitioner. Thomas T. Varghese and G. Sudheer for the Respondent.

27Apr, 2023

Reminder/New identity cards for enrolled advocates In Bar council of Delhi

This is to inform that the bar council of delhi in the meeting dated 6.4.2023 has decided that the new identity cards for enrolled advocates shall be made afresh . All the advocates shall apply afresh with the attested copy of aadhaar card, copy of enrollment certificate and COP (certificate of practice),where applicable. The permanent identity card shall be valid for 10 years and provisional identity card shall be valid for two years . One month time is being granted to all the advocates to apply afresh ,for which no charges shall be taken . Identity cards shall be issued free of cost to those who apply within one month, i.e., from 16.04.2023 to 31.05.2023.
Please deposit form your nearest Bar council window counter of every court of delhi/Bar council of delhi

19Mar, 2023

Article 19 of the Constitution of India/ Famous Case Law/Consequences/Blog

Article 19 of the Constitution of India provides six fundamental rights to citizens, which are:

Right to Freedom of Speech and Expression: This means that every citizen has the right to express his or her opinions freely without fear of censorship or punishment by the government.
Right to assemble peaceably and without arms: This means that every citizen has the right to organize and participate in peaceful assemblies or protests.
Right to form associations or unions: This means that every citizen has the right to form and join associations, unions, or political parties.
Right to move freely throughout the territory of India: This means that every citizen has the right to move freely within the country, and to live and work in any part of India.
Right to reside and settle in any part of India: This means that every citizen has the right to reside and settle in any part of India.
Right to practice any profession, or to carry on any occupation, trade or business: This means that every citizen has the right to practice any profession, carry on any occupation, trade or business without any discrimination.

Article 19 has played a significant role in protecting the fundamental rights of citizens and ensuring that they have the freedom to express themselves, associate with others, move freely, and pursue their chosen professions or occupations.

Famous case laws related to Article 19 of the Constitution of India include:

Maneka Gandhi v. Union of India (1978): This case established the doctrine of ‘due process of law’ which meant that any law that restricted a fundamental right must be just, fair, and reasonable. The case held that the right to travel abroad was a fundamental right and could not be taken away without following the due process of law.
S. Rangarajan v. P. Jagjivan Ram (1989): This case held that the right to freedom of speech and expression includes the right to express unpopular or dissenting views. The case held that any restriction on freedom of speech and expression must be narrowly tailored to achieve a specific objective and must not be vague or overbroad.
State of Madras v. V.G. Row (1952): This case held that any law that restricts the freedom of speech and expression must be reasonable and in the interests of the sovereignty and integrity of India. The case held that the right to freedom of speech and expression is not an absolute right and can be restricted by the State if it poses a threat to public order or morality.

These landmark cases have been instrumental in shaping the interpretation of Article 19 of the Constitution of India and have set the framework for the protection of fundamental rights in the country.

Consequences of Article 19

The consequences of Article 19 are that citizens have the freedom to exercise their rights without fear of government intervention, and that the government must protect these rights. The government can only restrict these rights under certain circumstances, such as when it is necessary for public order, morality, and security of the State.

17Mar, 2023