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Criminal Law
March 2023
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Premchand v. State of Maharashtra
Keywords: Criminal Law, Code of Criminal (Cr.P.C), Indian Penal Code (IPC), Supreme Court
Date of Judgement/Order – 03.03.2023
Bench Strength – 2 Judges
Composition of Bench – Justices S. Ravindra Bhat and Dipankar Datta
Case In Brief:
- The matter pertains to the fact that a person was murdered in 2013 and three others Prosecution Witness (P.W.) 2, 3 and 4 received stab injuries.
- The mother of the deceased lodged a report leading to the registration of a First Information Report under Section 302 and 307 Indian Penal Code, 1860 (IPC).
- The post-mortem report recorded “stab injury to neck” of the victim as the probable cause of death.
- Upon completion of the investigation, a charge sheet under sections 302 and 307, IPC was filed before the court concerned against the appellant and the charges were framed.
- The Court of Additional Sessions Judge concluded that the appellant committed the murder of the deceased and also attempted to commit the murder of P.W.2, P.W.3 and P.W.4.
- The previously mentioned judgment was challenged before the Division Bench of the High Court where the trial court judgement was upheld.
- Hence the present petition arises.
- The Supreme Court observed that the understanding of Section 313 of the Code of Criminal Procedure, 1973 (CrPC) must be discussed here and that neither the Trial Court nor the High Court looked at the accused's written statement.
- The court placed reliance on matters decided in State of U.P. v. Lakhmi (1998), Sanatan Naskar v. State of West Bengal (2010), Reena Hazarika v. State of Assam (2018), Parminder Kaur v. State of Punjab (2020), M. Abbas v. State of Kerala (2008) for Section 313 CrPC.
- The court noted that the statements of the accused in course of examination under Section 313, since is not on oath, do not constitute evidence under Section 3 of the Indian Evidence Act, 1872 yet the answers given are relevant for finding the truth and examining the veracity of the prosecution case.
Verdict:
- The Apex Court giving due weightage to Section 313 of CrPC held that written statement must be considered in the light of prosecution evidence.
- The Court found the accused to be guilty under Section 304 IPC only and considering that the accused has already undergone 9 years of imprisonment and is in his late sixties, he was directed to be released.
Relevant Provision –
Code of Criminal Procedure, 1973 – Section 313 - Power to examine the accused—
(1) In every inquiry or trial, for the purpose of enabling the accused personally to explain any circumstances appearing in the evidence against him, the Court—
(a) may at any stage, without previously warning the accused put such questions to him as the Court considers necessary;
(b) shall, after the witnesses for the prosecution have been examined and before he is called on for his defense, question him generally on the case:
Provided that in a summons case, where the Court has dispensed with the personal attendance of the accused, it may also dispense with his examination under clause (b).
(2) No oath shall be administered to the accused when he is examined under sub-section (1).
(3) The accused shall not render himself liable to punishment by refusing to answer such questions, or by giving false answers to them.
(4) The answers given by the accused may be taken into consideration in such inquiry or trial and put in evidence for or against him in any other inquiry into, or trial for, any other offence which such answers may tend to show he has committed.
(5) The Court may take help of Prosecutor and Defense Counsel in preparing relevant questions which are to be put to the accused and the Court may permit filing of written statement by the accused as sufficient compliance of this section.
Indian Penal Code, 1860 (IPC) – Section 302 - Punishment for murder. —Whoever commits murder shall be punished with death or imprisonment for life and shall also be liable to fine.
Section 307 of IPC - Attempt to murder.—Whoever does any act with such intention or knowledge, and under such circumstances that, if he by that act caused death, he would be guilty of murder, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; and if hurt is caused to any person by such act, the offender shall be liable either to imprisonment for life, or to such punishment as is hereinbefore mentioned.
Attempts by life-convicts - When any person offending under this section is under sentence of imprisonment for life, he may, if hurt is caused, be punished with death.
Ravi Dhingra v. State Haryana
Keywords: Criminal Law, Code of Criminal Procedure (CrPC), Indian Penal Code (IPC), Supreme Court
Date of Judgement/Order – 01.03.2023
Bench Strength – 2 Judges
Composition of Bench – Justices Sanjay Kishan Kaul and B.V. Nagarathna
Case In Brief:
- A 14-year-old boy was kidnapped while going to school and the Station House Officer had filed the First Information Report case under Section 364/34 of the Indian Penal Code, 1860 (IPC).
- As per the statement of a prosecution witness, the boy was intimidated by co-accused to ride as a pillion rider on his scooter and upon his refusal, he was forcibly put inside a car.
- Upon screaming for safety, he was threatened to be killed with a knife and pistol if he cried.
- The father of the boy said that various calls were made to him, after informing the police he arranged some money and acted upon the demands of the kidnappers.
- Upon the delivery of the cash in a bag near a bridge, it was discovered that calls were made from a mobile phone registered in the name of an engineering student, Ravi Duhan.
- Thereafter, four accused persons, namely, Ravi Dhingra, Baljit Pahwa, Parvej Khan and Raman Goswami, were apprehended by the police except accused Laxmi Narain who was apprehended later.
- The Trial Court sentenced the accused appellants to undergo rigorous imprisonment for three years under Section 148 of IPC, rigorous imprisonment for life and to pay a fine of Rs 2000/- each under Section 364A read with Section 149 of the IPC.
- Appellants appealed against the order of conviction and sentence before the Punjab and Haryana High Court and the plea of apellants was rejected.
- Hence the present appeal was filed in the Apex Court.
Verdict:
- The Supreme Court held that merely intimidating a kidnapped child to stop him from shouting for help did not prove the ingredient of threat resulting in a reasonable apprehension that such person may be hurt or killed as required for sustaining a conviction under Section 364A of the IPC.
- The Apex Court convicted the appellants under Section 363 of IPC i.e., kidnapping and sentenced to imprisonment for seven years and a fine of Rs 2000/-.
Relevant Provision –
Indian Penal Code, 1860 (IPC)
Section 148 - Rioting, armed with deadly weapon —Whoever is guilty of rioting, being armed with a deadly weapon or with anything which, used as a weapon of offence, is likely to cause death, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.
Section 149 - Rioting, armed with deadly weapon — Whoever is guilty of rioting, being armed with a deadly weapon or with anything which, used as a weapon of offence, is likely to cause death, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.
Section 363 - Punishment for kidnapping—Whoever kidnaps any person from 1 [India] or from lawful guardianship, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
Section 364A - Kidnapping for ransom, etc.—Whoever kidnaps or abducts any person or keeps a person in detention after such kidnapping or abduction, and threatens to cause death or hurt to such person, or by his conduct gives rise to a reasonable apprehension that such person may be put to death or hurt, or causes hurt or death to such person in order to compel the Government or any foreign State or international intergovernmental organization or any other person to do or abstain from doing any act or to pay a ransom, shall be punishable with death, or imprisonment for life, and shall also be liable to fine.
BLS Infrastructure Limited v. Rajwant Singh
Keywords: Criminal Law, Code of Criminal Procedure (CrPC), Supreme Court
Date of Judgement/Order – 01.03.2023
Bench Strength – 2 Judges
Composition of Bench – Justices Sudhanshu Dhulia and Manoj Misra
Case In Brief:
- There were eight complaints against the respondents under Section 138 of the Negotiable Instruments Act, 1881 (NI Act).
- Three complaints were filed in the year 2011, three in the year 2013 and the remaining two in the year 2017.
- During the pendency as per the appellant, his counsel misled him into the belief that his presence is not required as a settlement was being negotiated.
- Ultimately, the appellant did not appear, and the learned Magistrate dismissed the criminal complaints for non-appearance of the complainant even though the statement of the complainant was recorded.
- The abovesaid order was challenged in the Delhi High Court and the same was dismissed.
- Hence, the present petition was filed in the Top Court.
- The Apex Court observed:
- That there is a specific averment in the Special Leave Petition(s) that the appellant had led its evidence in the case and thereafter had moved an application under Section 311 of the Code to summon and examine further witnesses which was not done.
- That the Subordinate Court and the High Court have failed to consider the facts of the case in the light of proviso to sub-section (1) of Section 256 CrPC where the court could proceed with the matter after dispensing with the attendance of the complainant.
- If the complainant had not appeared to press the application under Section 311 of CrPC, the learned Magistrate could have rejected the application but in the present case averments regarding Section 311 were made therefore the learned Magistrate was not justified in straight away dismissing the complaint(s) and the High Court too failed to take notice of the aforesaid aspects.
Verdict:
The Top Court held that where the complainant had already been examined as a witness in the case, it would not be appropriate for the Court to pass an order of acquittal merely on non-appearance of the complainant thereby the Court allowed the appeal.
Relevant Provision –
Code of Criminal Procedure, 1973 – Section 256 - Non-appearance or death of complainant. —
(1) If the summons has been issued on complaint, and on the day appointed for the appearance of the accused, or any day subsequent thereto to which the hearing may be adjourned, the complainant does not appear, the Magistrate shall, notwithstanding anything hereinbefore contained, acquit the accused, unless for some reason he thinks it proper to adjourn the hearing of the case to some other day:
Provided that where the complainant is represented by a pleader or by the officer conducting the prosecution or where the Magistrate is of opinion that the personal attendance of the complainant is not necessary, the Magistrate may, dispense with his attendance and proceed with the case.
(2) The provisions of sub-section (1) shall, so far as may be, apply also to cases where the non-appearance of the complainant is due to his death.
Section 311 - Power to summon material witness, or examine person present.—Any Court may, at any stage of any inquiry, trial or other proceeding under this Code, summon any person as a witness, or examine any person in attendance, though not summoned as a witness, or recall and re-examine any person already examined; and the Court shall summon and examine or recall and re-examine any such person if his evidence appears to it to be essential to the just decision of the case.
Ashutosh Samanta v. Ranjan Bala Dasi & Ors.
Keywords: Civil Law, Indian Evidence Act (IEA), Supreme Court
Date of Judgement/Order – 14.03.2023
Bench Strength – 2 Judges
Composition of Bench – Justices S. Ravindra Bhat and J. Hima Kohli
Case In Brief:
- The case relates to one Gosaidas Samanta (testator) who had three sons – Upendra, Anukul and Mahadev.
- He died, survived by his three sons and a widow named Bhagbati Das and left behind a will dated 16.11.1929.
- The testator bequeathed his estate among three heirs namely his sons Anukul and Mahadev, and his grandson Shibu, the son of Upendra (who was not granted any share).
- Thereafter in 1945, a partition deed was drawn between these three co-sharers.
- This arrangement was accepted by Upendra, who also executed a disclaimer document, in respect of one part of the properties, sold by Shibu, out of his share.
- He alleged that he was an occupant of a part of the properties owned by the testator, and that he had purchased them from Upendra, the present appellant filed a suit for partition and possession in 1952.
- The suit was dismissed, and the court relied upon the fact that the present appellant had no title to the property although the decision was reversed by the appellate court.
- Upon appeal in the High Court, it was noted that the will that was relied upon has neither had probate attached to it, nor letters of administration were sought in this regard.
- In regard to the probate or letters of administration, the respondents herein approached the Trial Court.
- The Trial Court recorded that the respondent was entitled to letters of administration.
- An appeal against that judgment was rejected.
- Therefore, the present appeal in the Apex Court arose.
Verdict:
- The Supreme Court on the basis of the precedent laid down in M.B. Ramesh (D) by L.Rs. v. K.M. Veeraje Urs (D) by L.Rs. & Ors (2013) held that the presumption under Section 90 of the IEA older than 30 years of age is inapplicable when it comes to the evidence of wills.
- Wills cannot be proved only based on their age, they must be established in accordance with Sections 63(c) of the 1925 Succession Act and Section 68 of the IEA.
Anoop Baranwal v. Union of India
Keywords: Constitutional Law, Constitution of India, Supreme Court
Date of Judgement/Order – 02.03.2023
Bench Strength – 5 Judges
Composition Of Bench – Justices K.M. Joseph, Ajay Rastogi, Aniruddha Bose, Hrishikesh Roy, and C.T. Ravikumar
Relevant Provision –
Article 32 of The Constitution of India, 1950 - Remedies for enforcement of rights conferred by this Part. — (1) The right to move the Supreme Court through appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed.
(2) The Supreme Court shall have power to issue directions, orders, or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be appropriate, for the enforcement of any of the rights conferred by this Part.
(3) Without prejudice to the powers conferred on the Supreme Court by clauses (1) and (2) Parliament may by law empower any other court to exercise within the local limits of its jurisdiction all or any of the powers exercisable by the Supreme Court under clause (2). (4) The right guaranteed by this article shall not be suspended except as otherwise provided for by this Constitution.
Article 324 of The Constitution of India, 1950 - Superintendence, direction and control of elections to be vested in an Election Commission.—(1) The superintendence, direction and control of the preparation of the electoral rolls for, and the conduct of, all elections to Parliament and to the Legislature of every State and of elections to the offices of President and Vice-President held under this Constitution shall be vested in a Commission (referred to in this Constitution as the Election Commission).
(2) The Election Commission shall consist of the Chief Election Commissioner and such number of other Election Commissioners, if any, as the President may from time-to-time fix and the appointment of the Chief Election Commissioner and other Election Commissioners shall, subject to the provisions of any law made in that behalf by Parliament, be made by the President.
(3) When any other Election Commissioner is so appointed the Chief Election Commissioner shall act as the Chairman of the Election Commission.
(4) Before each general election to the House of the People and to the Legislative Assembly of each State, and before the first general election and thereafter before each biennial election to the Legislative Council of each State having such Council, the President may also appoint after consultation with the Election Commission such Regional Commissioners as he may consider necessary to assist the Election Commission in the performance of the functions conferred on the Commission by clause (1).
(5) Subject to the provisions of any law made by Parliament, the conditions of service and tenure of office of the Election Commissioners and the Regional Commissioners shall be such as the President may by rule determine: Provided that the Chief Election Commissioner shall not be removed from his office except in like manner and on the like grounds as a Judge of the Supreme Court and the conditions of service of the Chief Election Commissioner shall not be varied to his disadvantage after his appointment:
Provided further than any other Election Commissioner or a Regional Commissioner shall not be removed from office except on the recommendation of the Chief Election Commissioner.
(6) The President, or the Governor of a State, shall, when so requested by the Election Commission, make available to the Election Commission or to a Regional Commissioner such staff as may be necessary for the discharge of the functions conferred on the Election Commission by clause (1).
Case In Brief:
- The Top Court’s constitution bench comprising of 5 judges was hearing a clutch of petitions filed under Article 32 of the Constitution of India to decide the true essence of Article 324(2).
- The petitioners plead to make law for ensuring a fair, just and transparent process of selection by constituting a neutral and independent collegium/ selection committee to recommend the name for the appointment of the member to the Election Commission under Article 324(2) of the Constitution of India.
- In the latest and the last writ petition on the matter filed by Dr. Jaya Thakur, the relief sought was implementation of an independent and transparent system for appointment of members of the Election Commission on the lines, recommended by
- the Report of the Committee on Electoral Reforms of May 1990,
- the Report of Second Administrative Reforms Commission, Government of India of 2007 and
- the Report of Law Commission of India on Electoral Reforms of March 2015
- The Supreme Court observed that attaining power often becomes the sole goal of political parties to an end.
- However, the conduct of the government must be fair, and, in a democracy, the end cannot justify the means.
- Thus, it emphasized upon the fact that the Election Commission has to be independent.
Verdict:
- A Constitution Bench of the Supreme Court has ordered that Election Commissioners will be appointed by the President of India on the advice of a committee consisting of
- the Prime Minister, and
- Leader of Opposition in the Lok Sabha (or leader of largest opposition party), and
- Chief Justice of India,
- The court said that this practice will be enforced until legislation in this regard is enacted by Parliament.
Relevant Provision –
Section 68 of Indian Evidence Act, 1872 (IEA) - Proof of execution of document required by law to be attested.–If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence:
Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a will, which has been registered in accordance with the provisions of the Indian Registration Act, 1908 (16 of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied.
Section 69 of IEA - Proof where no attesting witness found.–If no such attesting witness can be found, or if the document purports to have been executed in the United Kingdom, it must be proved that the attestation of one attesting witness at least is in his handwriting, and that the signature of the person executing the document is in the hand writing of that person.
Section 90 of IEA - Presumption as to documents thirty years old. –Where any document, purporting or proved to be thirty years old, is produced from any custody which the Court in the particular case considers proper, the Court may presume that the signature and every other part of such document, which purports to be in the handwriting of any particular person, is in that person’s handwriting, and, in the case of a document executed or attested, that it was duly executed and attested by the persons by whom it purports to be executed and attested.
Explanation–– Documents are said to be in proper custody if they are in the place in which, and under the care of the person with whom, they would naturally be; but no custody is improper if it is proved to have had a legitimate origin, or if the circumstances of the particular case are such as to render such an origin probable.
Section 63(c) of Succession Act, 1925 - Execution of unprivileged Wills. - Every testator, not being a soldier employed in an expedition or engaged in actual warfare, [or an airman so employed or engaged,] or a mariner at sea, shall execute his Will according to the following rules.
( c) - The Will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the Will or has seen some other person sign the Will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgement of his signature or mark, or the signature of such other person; and each of the witnesses shall sign the Will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary.
Vijayalakshmi Jha v. Union of India
Keywords: Constitutional Law, Constitution of India, Supreme Court
Date of Judgement/Order – 03.03.2023
Bench Strength – 3 Judges
Composition of Bench – Chief Justice of India Dr. D.Y. Chandrachud, Justices Pamidighantam Sri Narasimha, and J.B. Pardiwala
Case In Brief:
- The present writ petition aims to invoke writ jurisdiction under Article 32 of the Constitution of India.
- The petition was filed to overrule the judgment of the case Indore Development Authority v. Manoharlal (2020) in which Constitution Bench of the Top Court had given an interpretation to Section 24(2) of the Right to Fair Compensation and Transparency in Land Acquisition Rehabilitation and Resettlement Act.
Verdict:
- A three-judge bench of the Supreme Court held that a petition under Article 32 of the Constitution cannot be maintained in order to challenge a binding judgment of this Court.
Relevant Provision –
The Constitution of India, 1950 – Article 32 - Remedies for enforcement of rights conferred by this Part. —
(1) The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed.
(2) The Supreme Court shall have power to issue directions or orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be appropriate, for the enforcement of any of the rights conferred by this Part.
(3) Without prejudice to the powers conferred on the Supreme Court by clauses (1) and (2), Parliament may by law empower any other court to exercise within the local limits of its jurisdiction all or any of the powers exercisable by the Supreme Court under clause (2). (4) The right guaranteed by this article shall not be suspended except as otherwise provided for by this Constitution.
Right to Fair Compensation and Transparency in Land Acquisition Rehabilitation and Resettlement Act, 2013 - Section 24(2) - Land acquisition process under Act No. 1 of 1894 shall be deemed to have lapsed in certain cases - Notwithstanding anything contained in sub-section (1), in case of land acquisition proceedings initiated under the Land Acquisition Act, 1894, where an award under the said section 11 has been made five years or more prior to the commencement of this Act but the physical possession of the land has not been taken or the compensation has not been paid the said proceedings shall be deemed to have lapsed and the appropriate Government, if it so chooses, shall initiate the proceedings of such land acquisition afresh in accordance with the provisions of this Act: Provided that where an award has been made and compensation in respect of a majority of land holdings has not been deposited in the account of the beneficiaries, then, all beneficiaries specified in the notification for acquisition under section 4 of the said Land Acquisition Act, shall be entitled to compensation in accordance with the provisions of this Act.
State of Goa v. Summit Online Trade Solutions (P) Ltd and others
Keywords: Constitutional Law, Constitution of India, Supreme Court
Date of Judgement/Order – 14.03.2023
Bench Strength – 2 Judges
Composition of Bench – Justices S. Ravindra Bhat and Dipankar Datta;
Case In Brief:
- The matter relates to a writ petition filed by a lottery company challenging a notification issued by the Goa Government under the Central Goods and Services Tax Act, 2017 (CGST).
- The petitioner firm has its office in Gangtok, Sikkim and had approached the Sikkim High Court for a tax levied by the State of Goa for the business the firm carries on in the State of Goa.
- The contention of the petitioner was that the cause of action arose in the State of Sikkim therefore the Sikkim High Court has the jurisdiction to hear and decide the matter.
- The High Court allowed the writ petitions on the ground that the petitioners are also challenging a notification issued by the Centre under the CGST Act.
- The State of Goa thereafter filed an application for removal from the array of respondents, the High Court refused to do so, against which the State appealed to the Supreme Court.
- The Apex Court observed that even if a part of cause of action is assumed to have arisen within the State of Sikkim, the High Court ought not to have entertained the writ having regard to the principle of forum conveniens.
- (Forum Conveniens - This doctrine is based on the right of the Court in the exercise of its powers to refuse to exercise its jurisdiction and relegate the matter for another forum, where action could be brought, to adjudicate the disputes keeping in mind the convenience of litigants and witnesses and in the interest of justice.)
Verdict:
- The Supreme Court stated that the expression ‘cause of action’ has not been defined in the Constitution.
- However, the classic definition of ‘cause of action’ given by Lord Brett in Cooke v. Gill (1873) is “cause of action means every fact which it would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of the court”.
- The Top Court held that High Court of Sikkim ought not to have entertained the writ petitions as against the State of Goa.
Relevant Provision –
The Constitution of India – Article 226 - Power of High Courts to issue certain writs.—(1) Notwithstanding anything in article 32, every High Court shall have power, throughout the territories in relation to which it exercises jurisdiction, to issue to any person or authority, including in appropriate cases, any Government, within those territories directions, orders or writs, including [writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, or any of them, for the enforcement of any of the rights conferred by Part III and for any other purpose.
(2) The power conferred by clause (1) to issue directions, orders or writs to any Government, authority or person may also be exercised by any High Court exercising jurisdiction in relation to the territories within which the cause of action, wholly or in part, arises for the exercise of such power, notwithstanding that the seat of such Government or authority or the residence of such person is not within those territories.
(3) Where any party against whom an interim order, whether by way of injunction or stay or in any other manner, is made on, or in any proceedings relating to, a petition under clause (1), without— (a) furnishing to such party copies of such petition and all documents in support of the plea for such interim order; and
(b) giving such party an opportunity of being heard, makes an application to the High Court for the vacation of such order and furnishes a copy of such application to the party in whose favour such order has been made or the counsel of such party, the High Court shall dispose of the application within a period of two weeks from the date on which it is received or from the date on which the copy of such application is so furnished, whichever is later, or where the High Court is closed on the last day of that period, before the expiry of the next day afterwards on which the High Court is open; and if the application is not so disposed of, the interim order shall, on the expiry of that period, or, as the case may be, the expiry of the said next day, stand vacated.
(4) The power conferred on a High Court by this article shall not be in derogation of the power conferred on the Supreme Court by clause (2) of article 32.
Ajay Kumar Radheyshyam Goenka v. Tourism Finance Corporation of India Ltd.
Keywords: Constitutional Law, Constitution of India, Mercantile Law, Negotiable Instrument Act, Supreme Court
Date Of Judgement/Order – 03.03.2023
Bench Strength – 3 Judges
Composition Of Bench – Justices Sanjay Kishan Kaul, Abhay S Oka and JB Pardiwala
Case In Brief:
- In the present case, during the pendency of the proceedings under the NI Act before the Metropolitan Magistrate, insolvency proceedings under Section 9 of the Insolvency and Bankruptcy Code, 2016 (IBC) were also initiated by a third party against the Accused Company (M/s Rainbow Papers Limited).
- The National Company Law Tribunal (NCLT) admitted the petition under Section 9 and accordingly, the moratorium in terms of Section 14 of the IBC came into effect.
- The appellant thereafter filed an application for discharge of the complaint case, which was dismissed by the Metropolitan Magistrate.
- The criminal revision petition preferred by the appellant in the High Court was also dismissed with a cost of INR 20,000/- to be paid by the appellant to the respondent.
- Thereafter the present appeal arose in the Supreme Court.
- The question before the Apex Court was whether pendency of proceedings under IBC permits proceedings under Section 138 of NI Act to continue simultaneously.
Verdict:
- A division bench of the Supreme Court held that the approval of resolution plan of a corporate debtor under IBC will not extinguish the criminal liability of its erstwhile director under Section 138 of NI Act.
Relevant Provision –
Negotiable Instruments Act 1881 (NI Act) – Section 138 - Dishonour of cheque for insufficiency, etc., of funds in the account.—Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provision of this Act, be punished with imprisonment for [a term which may be extended to two years’], or with fine which may extend to twice the amount of the cheque, or with both: Provided that nothing contained in this section shall apply unless—
(a) thecheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier;
(b) the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice; in writing, to the drawer of the cheque, [within thirty days] of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and
(c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice.
Explanation. —For the purposes of this section, “debt of other liability” means a legally enforceable debt or other liability.
Insolvency and Bankruptcy Code, 2016 (IBC) – Section 9 - Application for initiation of corporate insolvency resolution process by operational creditor - (1) After the expiry of the period of ten days from the date of delivery of the notice or invoice demanding payment under sub-section (1) of section 8, if the operational creditor does not receive payment from the corporate debtor or notice of the dispute under sub-section (2) of section 8, the operational creditor may file an application before the Adjudicating Authority for initiating a corporate insolvency resolution process.
(2) The application under sub-section (1) shall be filed in such form and manner and accompanied with such fee as may be prescribed. (3) The operational creditor shall, along with the application furnish—
(a) a copy of the invoice demanding payment or demand notice delivered by the operational creditor to the corporate debtor;
(b) an affidavit to the effect that there is no notice given by the corporate debtor relating to a dispute of the unpaid operational debt;
(c) a copy of the certificate from the financial institutions maintaining accounts of the operational creditor confirming that there is no payment of an unpaid operational debt by the corporate debtor; and
(d) such other information as may be specified.
(4) An operational creditor initiating a corporate insolvency resolution process under this section, may propose a resolution professional to act as an interim resolution professional.
(5) The Adjudicating Authority shall, within fourteen days of the receipt of the application under sub-section (2), by an order—
(i) admit the application and communicate such decision to the operational creditor and the corporate debtor if,—
(a) the application made under sub-section (2) is complete;
(b) there is no repayment of the unpaid operational debt;
(c) the invoice or notice for payment to the corporate debtor has been delivered by the operational creditor;
(d) no notice of dispute has been received by the operational creditor or there is no record of dispute in the information utility; and
(e) there is no disciplinary proceeding pending against any resolution professional proposed under sub-section (4), if any
(ii) reject the application and communicate such decision to the operational creditor and the corporate debtor, if—
(a) the application made under sub-section (2) is incomplete;
(b) there has been repayment of the unpaid operational debt;
(c) the creditor has not delivered the invoice or notice for payment to the corporate debtor;
(d) notice of dispute has been received by the operational creditor or there is a record of dispute in the information utility; or
(e) any disciplinary proceeding is pending against any proposed resolution professional: Provided that Adjudicating Authority, shall before rejecting an application under subclause (a) of clause (ii) give a notice to the applicant to rectify the defect in his application within seven days of the date of receipt of such notice from the adjudicating Authority.
(6) The corporate insolvency resolution process shall commence from the date of admission of the application under sub-section (5) of this section.
Shankar v. The State of Maharashtra
Keywords: Criminal Law, Indian Penal Code (IPC), Supreme Court
Date of Judgement/Order – 15.03.2023
Bench Strength – 2 Judges
Composition of Bench – Justices Ajay Rastogi and C.T. Ravikumar
Case In Brief:
- The Apex Court was hearing an appeal from the judgement given by the Bombay High Court.
- The deceased along with a friend went to Indira Gandhi Ward at a bandhara where the house of Chintaman Giddu Gatey (Prosecution Witness) is situated.
- After parking his moped the deceased went inside the house leaving his friend near the vehicle.
- The deceased along with his friend assaulted the brother of the appellant though the deceased denied the assault.
- The body of the deceased was found about an hour thereafter.
- The Trial Court found the appellants guilty and convicted him based on circumstantial evidence.
- The High Court confirmed the conviction and sentence imposed on appellants by the Trial Court holding that certain proven circumstances are material circumstances.
- Hence the present appeal in the Top Court.
- The Court took note of the five golden principles given in the case of Sharad Birdhichand Sarda v. State of Maharashtra which are:
- The circumstances from which the conclusion of guilt is to be drawn should be fully established.
- The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty.
- The circumstances should be of a conclusive nature and tendency.
- They should exclude every possible hypothesis except the one to be proved.
- There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
Verdict:
- The judgement authored by Justice Ravikumar relied on the five golden and the last seen theory.
- The Court held that “In our considered view, the remaining circumstances relied on by the prosecution and held as proved by the courts below would not unerringly point to the guilt of the appellants”.
- The Bench therefore ordered the acquittal of the appellants.
Relevant Provision –
Indian Penal Code, 1860 (IPC) – Section 34 – Acts done by several persons in furtherance of common intention. — When a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone.
Section 302 - Punishment for murder. — Whoever commits murder shall be punished with death or imprisonment for life and shall also be liable to fine.
Constitution of India, 1950
Article 136 - Special leave to appeal by the Supreme Court. — (1) Notwithstanding anything in this Chapter, the Supreme Court may, in its discretion, grant special leave to appeal from any judgment, decree, determination, sentence or order in any cause or matter passed or made by any court or tribunal in the territory of India.
(2) Nothing in clause (1) shall apply to any judgment, determination, sentence, or order passed or made by any court or tribunal constituted by or under any law relating to the Armed Forces.
Prem Kishore & Ors. v. Brahm Prakash & Ors.
Keywords: Civil Law, Code of Civil Procedure (CPC), Supreme Court
Date of Judgement/Order – 29.03.2023
Bench Strength – 2 Judges
Composition of Bench – Justices Sudhanshu Dhulia and J.B. Pardiwala
Case in Brief:
- The present case is filed by way of a Special Leave Petition from a judgement of Delhi High Court.
- The respondents herein were inducted as tenants on 27.12.1987 by the father of the appellants in respect of the property.
- According to the appellants, the tenancy was for residential purposes.
- It was also contended that the rent was duly paid till February 1993.
- The father of the appellants served a demand notice dated 04.03.1996 on the respondents claiming the arrears of rent to the tune of INR 27,800.
- According to the appellants, the notice was duly served upon the respondents, but the dues were not cleared.
- The father of the appellants filed an eviction petition thereafter.
- The Rent Controller dismissed the petition.
- After the demise of Samey Singh (original plaintiff), the appellants herein claiming as successors in interest filed another eviction petition which was rejected being barred by the principles of res judicata.
- In appeal thereafter the Additional Rent Controller in such circumstances took the view that the plea of res judicata was not tenable.
- The High Court allowed the civil revision petition in appeal and rejected the plaint of the eviction petition on the ground that the same was hit by the principles of res judicata.
- The Apex Court observed that the moot question here is whether the eviction petition was dismissed for default and which dismissal would certainly bar a fresh suit if instituted on the same cause of action.
- The words, which the court quoted above, certainly do not mean dismissal either on merits or on default.
Verdict:
- The Top Court thereby allowed the appeal and held that the claim is not barred by res judicata.
Relevant Provision –
Section 11 of Code of Civil Procedure, 1908 (CPC) - Res judicata.—No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court.
Explanation I.—The expression “former suit” shall denote a suit which has been decided prior to a suit in question whether or not it was instituted prior thereto.
Explanation II.—For the purposes of this section, the competence of a Court shall be determined irrespective of any provisions as to a right of appeal from the decision of such Court. Explanation III.—The matter referred to above must in the former suit have been alleged by one party and either denied or admitted, expressly or impliedly, by the other. Explanation IV. —Any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit.
Explanation V.—Any relief claimed in the plaint, which is not expressly granted by the decree, shall for the purposes of this section, be deemed to have been refused.
Explanation VI. —Where persons litigate bona fide in respect of a public right or of a private right claimed in common for themselves and others, all persons interested in such right shall, for the purposes of this section, be deemed to claim under the persons so litigating.
Explanation VII. —The provisions of this section shall apply to a proceeding for the execution of a decree and references in this section to any suit, issue or former suit shall be construed as references, respectively, to a proceeding for the execution of the decree, question arising in such proceeding and a former proceeding for the execution of that decree.
Explanation VIII. —An issue heard and finally decided by a Court of limited jurisdiction, competent to decide such issue, shall operate as res judicata in a subsequent suit, notwithstanding that such Court of limited jurisdiction was not competent to try such subsequent suit or the suit in which such issue has been subsequently raised.
Prasanta Kumar Sahoo & Ors. v. Charulata Sahu & Ors.
Keywords: Civil Law, Code of Civil Procedure (CPC), Supreme Court
Date of Judgment/Order- 29.03.2023
Bench Strength - 2 Judges
Composition of Bench - Justices A S Bopanna and J B Pardiwala
Case in Brief:
- In 1969 Mr. Kumar Sahoo passed away and was survived by his three children namely, Ms. Charulata (daughter), Ms. Santilata (daughter) and Mr. Prafulla (son).
- On 3.12.1980, the Respondent No. 1 (Ms. Charulata) filed a suit for partition, claiming 1/3rd share in the properties ‘A’ to ‘F’ as scheduled in the plaint.
- The Trial Court passed a preliminary decree dated 30.12.1986 and held that Ms. Charulata and Ms. Santilata are entitled to 1/6th share in the ancestral properties and 1/3rd share in the self-acquired properties of Late Kumar Sahoo.
- The court held that Mr. Prafulla is entitled to 4/6th share in ancestral property and 1/3rd share in self-acquired property.
- Prafulla filed a first appeal against the decision.
- Later, entered into a Settlement Deed with Ms. Santilata who relinquished her share in lieu of INR 50,000 however the deed was not signed by Ms. Charulata.
- Division Bench of High Court invalidated the Settlement Deed.
- Mr. Prafulla then filed an appeal in the Supreme Court.
Verdict:
- A suit for partition of joint property, a decree by consent amongst only some of the parties cannot be maintained.
- When a settlement deed has been executed in respect of a joint property, then such settlement must record written consent and signatures of ‘all’ the Parties in order to attain legality.
- The bench upheld the allocation of share done by the Trial Court and the Division Bench of High Court and redetermined the shares of the parties.
- The Settlement Deed has been invalidated by the Bench and Mr. Prafulla cannot claim the share of Ms. Santilata.
Relevant Provision -
Order XXII Rule 3 of the Code of Civil Procedure, 1908 (CPC) - Procedure in case of death of one of several plaintiffs or of sole plaintiff. —
(1) Where one of two or more plaintiffs dies and the right to sue does not survive to the surviving plaintiff or plaintiffs alone, or a sole plaintiff or sole surviving plaintiff dies and the right to the sue survives, the Court, on an application made in that behalf, shall cause the legal representative of the deceased plaintiff to be made a party and shall proceed with the suit.
(2) Where within the time limited by law no application is made under sub-rule (1), the suit shall abate so far as the deceased plaintiff is concerned, and, on the application of the defendant, the Court may award to him the costs which he may have incurred in defending the suit, to be recovered from the estate of the deceased plaintiff.
Afjal Ali Sha @ Abjal Shaukat v. State of West Bengal & Ors
Keywords: Criminal Law, Code of Criminal Procedure (CrPC), Supreme Court
Date of Judgment/Order - 17.03.2023
Bench Strength - 2 Judges
Composition of Bench - Justices Suryakant and J K Maheshwari
Case in Brief:
- The deceased was allegedly shot in the neck by ‘certain unknown musclemen & goons’ when he was working in the office of a political party.
- Though immediately rushed to a hospital, he was declared dead on arrival.
- On the next day, an FIR was lodged under Section 302 read with Section 120B of the Indian Penal Code, 1860 and, under Sections 25 and 27 of the Arms Act, 1959 against Respondent No. 2.
- During the pendency of the trial, the Legal Remembrancer & Ex- Officio Secretary to the Government of West Bengal, Judicial Department, by an order of the Governor, issued a notification in 2021 directing the Public Prosecutor to apply under Section 321 of CrPC and withdraw the criminal proceedings against Respondent Nos. 2 to 11, subject to the consent of the Trial Court.
- This notification was challenged before the Calcutta High Court.
- The High Court directed that any action taken in the meantime, pursuant to the State Government’s notification, including the order allowing withdrawal of the case, was liable to be set aside.
- On appeal, the Division Bench set aside the order and remanded the matter back for fresh adjudication.
- In the meanwhile, the brother of the deceased moved the Top Court seeking a transfer of the criminal trial to Assam claiming that a fair trial will not be possible in West Bengal.
- The Supreme Court, before delving into the case, discussed the power to transfer cases under Section 406, CrPC as well as the preliminary objection raised by the respondents on the petitioner’s locus standi.
- The Court rejected the challenge.
Verdict:
- The Court allowed transfers only in exceptional cases considering the fact that transfers may cast unnecessary aspersions on the State Judiciary and the prosecution agency.
- Thus, over the years, the Court has laid down certain guidelines and situations wherein such power can be justifiably invoked.
Relevant Provision -
Section 406 of the Code of Criminal Procedure, 1973 (CrPC) - Power of Supreme Court to transfer cases and appeals
(1) Whenever it is made to appear to the Supreme Court that an order under this section is expedient for the ends of justice, it may direct that any particular case or appeal be transferred from one High Court to another High Court or from a Criminal Court subordinate to one High Court to another Criminal Court of equal or superior jurisdiction subordinate to another High Court.
(2) The Supreme Court may act under this section only on the application of the Attorney- General of India or of a party interested, and every such application shall be made by motion, which shall, except when the applicant is the Attorney- General of India or the Advocate- General of the State, be supported by affidavit or affirmation.
(3) Where any application for the exercise of the powers conferred by this section is dismissed, the Supreme Court may, if it is of opinion that the application was frivolous or vexatious, order the applicant to pay by way of compensation to any person who has opposed the application such sum not exceeding one thousand rupees as it may consider appropriate In the circumstances of the case.