Call details marked with objection can not be considered in evidence if its issuing authority is not examined

Though the call details Ex.P.36 marked with objection, the admissibility of the said document cannot be questioned at the belated stage, but the authority, who issued the said document, has not been examined. Therefore, the same cannot be considered in the absence of any material produced to prove that there were conversations between P.W.8 and P.W.1 and P.W.8 and the deceased in view of the dictum of the Hon'ble Supreme Court in the case of Malay Kumar Ganguly v. Dr. Sukumar Mukherjee reported in AIR 2010 SC 1162 wherein at paragraphs 48 and 49 it has been held as under:

"48. It is true that ordinarily if a party to an action does not object to a document being taken on record and the same is marked as an exhibit, he is estopped and precluded from questioning the admissibility thereof at a later stage. It is, however, trite that a document becomes inadmissible in evidence unless the author thereof is examined; the contents thereof cannot be held to have been proved unless he is examined and subjected to cross- examination in a court of law.
49. The document which is otherwise inadmissible cannot be taken in evidence only because no objection to the admissibility thereof was taken. In a criminal case, subject of course, to the shifting of burden depending upon the statutes and/or the decisions of the superiors courts, the right of an accused is protected in terms of Article 21 of the Constitution of India. The procedure laid in that behalf, therefore, must be strictly complied with. Exts. 4, 5 and 6, in our opinion, are not admissible in evidence in the criminal trial." [Para No.87]

Facts stated in plaint has to be presume correct while deciding application under Order 7 Rule 11

In a nut shell, it can be said that for deciding whether the plaint discloses cause of action or not, the court has to see only the averments in the plaint and the accompanying documents relied upon in the plaint and the facts elicited from the plaintiff by examining him under Order 10 of the Code of Civil Procedure. For the purpose of deciding the application under Order 7 Rule 11 for rejecting the plaint, the court has also to presume the facts stated in the plaint as correct.

    In the instant matter,the court below rejected the application moved by the appellant under Order 7 Rule 11 C.P.C. read with section 151 C.P.C. with the following observations:-

"जहाँ तक प्रथम आपत्ति का प्रश्न है आदेश-7 नियम-11 में यह प्रावधान है कि जहाँ वाद पत्र हेतुक प्रकट नहीं करता है वहां वाद पत्र नामंजूर कर दिया जायेगा | वादी द्वारा प्रस्तुत दावे के अवलोकन से यह स्पष्ट है कि वाद पत्र कागज संख्या ए -3 के पैरा 49 में वादी का वाद कारण को करमवार अंकित किया है जिस पर प्रतिवादिनी का कथन है कि वह बिना आधार के और पूर्णतया असत्य है | वादी द्वारा प्रस्तुत वाद कारण सत्य है अथवा असत्य है यह साक्षयोपरांत ही तय हो सकता है | धारा 7 नियम 11 के अधीन वाद पत्र की अपेक्षा केवल वाद हेतुक प्रकट करना है न की इस स्तर पर सत्यता अथवा असत्यता परिलक्षित होनी है | चुकिं वाद पत्र वाद हेतुक प्रकट करता है ऐसे स्थिति में आदेश-7 नियम-11 के अधीन वाद पत्र नामंजूर किये जाने का कोई औचित्य आधार नहीं है |"

    Keeping in view the observations made by the court below while rejecting the application of the appellant under Order 7 Rule 11 C.P.C. read with section 151 C.P.C. as well as the settled legal proposition of law on the point in issue that the plaint filed by the plaintiff can only be rejected when the same is barred by any law or no cause of action has accrued to the plaintiff for filing the same.

Police authorities are not the adjudicators of guilt or innocence of any person

A person cannot be denuded of his or her dignity merely because he/she is an accused or is under trial.

A media campaign to pronounce a person guilty would certainly destroy the presumption of innocence.

    It is also necessary to bear in mind that human dignity is recognized as a constitutional value and a right to maintain one's reputation is a facet of human dignity. A person cannot be denuded of his or her dignity merely because he/she is an accused or is under trial.
[Para No.24]

   The police or any other agency cannot use media to influence public opinion to accept that the accused is guilty of an alleged offence while the matter is still being investigated. The same is not only likely to subvert the fairness of the investigation but would also have the propensity to destroy or weaken the presumption of innocence, which must be maintained in favour of the accused till he/she is found guilty after a fair trial.
[Para No45.]

   It is also well settled that the right to receive information is one of the essential the facets of Article 19(1)(a) of the Constitution of India. The right to freedom of speech and expression also encompasses the right to information. However, this right is not absolute and may be curtailed if it interferes with the administration of justice and the right of an accused to a fair trial.[Para No.46]

Party who rely on existence of a custom, must plead and prove the same

It can be concluded from the above discussion that a person claiming a customary right to succeed to the office of mutawalli would have to show that the waqif intended for the office to devolve through a practice of hereditary succession. In the absence of any express directions in the waqfnama to this effect, the claimant would have to show that such practice has been in existence throughout the history of the trust, and not merely for a few generations, such that the waqif’s intention that the office should be hereditary can be presumed. The burden of proof would be higher with respect to a public waqf, such as the suit waqf in the instant case, than a family trust.[Para No.22]

   We may now consider what the principles governing the establishment of a custom under Muslim law are. It is a settled position of law that a custom in order to be legal and binding must be certain, reasonable and acted upon in practice for a long period with such invariability and continuity that it has become the established governing rule in a community by common consent. It is equally settled that it is incumbent upon the party relying on the custom to plead and prove it.

   In this regard, we may fruitfully refer to the following observations from Fyzee’s Outlines of Muhammedan Law (5th edn., 2008, Prof. Tahir Mahmood ed., p. 49) (for short “Fyzee”):

“First, the burden lies heavily upon the person who asserts to plead the custom relied upon and prove clearly that he is governed by custom and not by the general law. Secondly, as to the proof of custom, there is in law no presumption in favour of custom and the custom must be ancient, certain and not opposed to public policy.” (emphasis supplied) The leading case with respect to the requirements of proving a custom is the decision of the Privy Council in H.H. Mir Abdul Hussein Khan v. Bibi Sona Dero, AIR 1917 PC 181.

Writ petition u/A 226 is not maintainable against inaction of police in registration of FIR

Investigation is the function of the police and writ court cannot be converted as an investigation agency.

   Indeed that Section 39 of the Cr.P.C enables the public to set the criminal law in motion, but if the officer in-charge, fails to register an FIR, the Hon'ble Supreme Court as well as this Court, in the above decisions have considered whether the only remedy open to the complainant or the first informant or the member of public to approach the High Court under Article 226 of the Constitution of India and that there is no other remedy provided under any other law, and answered that writ is not the remedy.[Para No.103]

   It is clear from the above provisions in the Cr.P.C., that if the police did not register a case on the basis of a complaint filed by the complainant, then he has got a remedy in the Code of Criminal Procedure, by approaching the jurisdictional Magistrate under Section 156(3) of the Code or even file a private complaint under Section 190 read with Section 200 of the Code, and when a complaint is filed, then the Magistrate has to conduct enquiry under Sections 200 and 202 of the Code, and if the Magistrate is satisfied on the basis of the materials produced before that court that commission of an offence has been prima facie made out, then the Magistrate can take cognizance of the case and issue process to the accused under Section 204 of the Code. If the Magistrate is not satisfied with the materials produced and if he is satisfied that no offence has been made out, then the Magistrate can dismiss the complaint under Section 203 of the Code.[Para No.104]

   Even if the Station House Officer commits a mistake in arriving at the conclusion that the allegations are not sufficient to attract the ingredients of commission of a cognizable offence, even this Court cannot invoke the power under Article 226 of the Constitution of India, go into the question as to whether non satisfaction by the Station House Officer is proper or not, to issue a writ of mandamus or other writs directing the Station House Officer to register a crime as it is a matter to be considered by the Magistrate under Section 190 read with Section 200 of the Code on a complaint filed by the aggrieved party on account of the inaction on the part of the police in not registering case in such cases. If an enquiry has to be conducted for satisfaction regarding the commission of offence, then it is not proper on the part of the High Court to invoke the power under Article 226 of the Constitution of India and parties must be relegated to resort to their statutory remedy available under the Code in such cases. After lodging the complaint before the concerned police and if the police is not registering the case, the aggrieved person/complainant can approach the Superintendent of Police with written application under Section 154(3) of the Code of Criminal Procedure, and even in a case the Superintendent of Police also does not register an FIR or no proper investigation is done, the aggrieved person can approach the Magistrate concern under Section 156 (3) of Cr.P.C. Without resorting to the procedure as contemplated in the Cr.P.C, the petitioner has approached this Court under Article 226 of the Constitution of India.[Para No.105]

Arbitrator can pass an award directing specific performance of an agreement of sale

Point 3: This point becomes relevant because if the arbitrators cannot grant specific performance, a point can be raised under Section 34(2)(b)(i) that the subject matter of the dispute is not capable of arbitration. [Para No.35]

   One of the points raised in the grounds in this Court is that the grant of specific performance is discretionary and the discretion to grant or not to grant specific performance has been conferred by the Specific Relief Act, 1963 on the Civil Court and hence the arbitrator cannot be deemed to have been empowered to grant such a relief. [Para No.36]

    We may point out that the Punjab High Court in Laxmi Narayan vs. Raghubir Singh [AIR 1956 Punjab 249] the Bombay High Court in Fertiliser Corporation of India vs. Chemical Construction Corporation [ILR 1974 Bombay 856/858 (DB)] and the Calcutta High Court in Keventer Agro Ltd. vs. Seegram Comp. Ltd. [Apo 498 of 1997 & Apo 449 of (401)] (dated 27.1.98) have taken the view that an arbitrator can grant specific performance of a contract relating to immovable property under an award. No doubt, the Delhi High Court in M/s PNB Finance Limited vs. Shital Prasad Jain & Others [AIR 1991 Del. 13] has however held that the arbitrator cannot grant specific performance. The question arises as to which view is correct. [Para No.37]

   In our opinion, the view taken by the Punjab, Bombay and Calcutta High Courts is the correct one and the view taken by the Delhi High Court is not correct. We are of the view that the right to specific performance of an agreement of sale deals with contractual rights and it is certainly open to the parties to agree - with a view to shorten litigation in regular courts - to refer the issues relating to specific performance to arbitration. There is no prohibition in the Specific Relief Act, 1963 that issues relating to specific performance of contract relating to immovable property cannot be referred to arbitration. Nor is there such a prohibition contained in the Arbitration and Conciliation Act, 1996 as contrasted with Section 15 of the English Arbitration Act, 1950 or section 48(5)(b) of the English Arbitration Act, 1996 which contained a prohibition relating to specific performance of contracts concerning immoveable property. [Para No.38]

Possibility of improvisation should be considered by Special Judge while deciding anticipatory bail in SC & ST Atrocity offences

When facts constituting atrocity are not mentioned in FIR but added in supplementary statement the it does not rule out possibility of improvisation.

   The important point that the learned Special Judge failed to consider is that, there is absolutely no mention in First Information Report of those facts which would attract offence under Atrocities Act. Those facts came to be mentioned in the supplementary statement. The possibility of improvisation should have been considered by the Special Judge. Definitely the ratio laid down in Prithviraj Chavan's case (Supra) is required to be considered and in the said case it has been observed thus, "10. Concerning the applicability of provisions of section 438 of Cr.P.C., it shall not apply tot he cases under Act of 1989. However, if the complaint does not make out a prima facie case for applicability of the provisions of the Act of 1989, the bar created by section 18 and 18A (I) shall not apply. We have clarified this aspect while deciding the review petitions "

  Therefore, if we brush aside those allegations under the Atrocities Act, what remains is only the offences under Indian Penal Code and Information Technology Act. Those remaining allegations do not require physical custody of the appellant for the purpose of investigation. Time and again this Court is observing the approach of the Special Judges under the Atrocities Act, who are dealing with the bail applications. They are not considering the facts of the case in proper manner and only on the apparent allegations and especially without considering the ratio laid down in Prithviraj Chavan's case (Supra), just dismissing the bail applications, especially the pre-arrest bail applications holding that, there is bar under Section 18 of the Scheduled Castes and the Scheduled Tribes (Prevention of Atocities) Act, 1989. Time has again come to remind the Special Judges under the Atrocities Act that, they should consider the ratio laid down in Prithviraj Chavan's case (Supra) and other Judgments of Hon'ble Supreme Court and this Court in proper manner while dealing with the bail applications.[Para No.9]

If a judge decides a case for any extraneous reasons then he is not performing his duty in accordance with law

The first and foremost quality required in a Judge is integrity. The need of integrity in the judiciary is much higher than in other institutions. The judiciary is an institution whose foundations are based on honesty and integrity. It is, therefore, necessary that judicial officers should possess the sterling quality of integrity. This Court in Tarak Singh v. Jyoti Basu [(2005) 1 SCC 201] held as follows:-

“Integrity is the hallmark of judicial discipline, apart from others. It is high time the judiciary took utmost care to see that the temple of justice does not crack from inside, which will lead to a catastrophe in the judicial- delivery system resulting in the failure of public confidence in the system. It must be remembered that woodpekers inside pose a larger threat than the storm outside.”[Para No.6]

   The behavior of a Judge has to of an exacting standard, both inside and outside the Court. This Court in Daya Shankar v. High Court of Allahabad and Others [(1987) 3 SCC 1] held thus:

“Judicial Officers cannot have two standards, one in the court and other outside the court. They must have only one standard of rectitude, honesty and integrity. They cannot act even remotely unworthy of the office they occupy.”

    Judges are also public servants. A Judge should always remember that he is there to serve the public. A Judge is judged not only by his quality of judgments but also by the quality and purity of his character. Impeccable integrity should be reflected both in public and personal life of a Judge. One who stands in judgments over others should be incorruptible. That is the high standard which is expected of Judges. [Para No.8]

Party, who is guilty of protracting the litigation, is not entitled to interest

It is not in dispute that while the claim petition was pending before the Tribunal, the claimants in the month of June 2013 filed a transfer petition seeking transfer of the claim petition from MACT, Kishtwar to MACT, Jammu which was finally dismissed as not pressed by this Court vide order dated 18.02.2016. The said transfer petition, thus, remained pending for almost three years and during this period, the proceedings in the claim petition remained stayed. According to learned counsel for the insurer, no interest should have been paid for this period as the claimants cannot be given the benefit of their own wrong.[Page No.35]

    Per contra, Mr. Bhat submits that the interest awarded by the Tribunal is not a penal interest, but is only a compensation for the amount withheld and, therefore, the Tribunal was right in awarding interest even for the aforesaid period when the proceedings in the claim petition remained suspended. Reliance is placed upon the judgment of Hon‟ble Supreme Court rendered in the case of Alok Shankar Pandey v. Union of India (AIR 2007 SC 1198) [Para No.36]

  I have given my thoughtful consideration to the plea raised and am of the view that, although in the commercial parlance, the interest is ordinarily not a penalty or punishment, but is a normal accretion on capital, yet the same cannot be applied in the cases of claims under the Motor Vehicles Act. Granting interest to a party, who is guilty of protracting the litigation, would be encouraging the parties to indulge in unnecessarily delaying the litigation. It is well settled that a person cannot be permitted to take the benefit of his own wrong. In the instant case, determination of compensation by the Tribunal was delayed by almost three years due to filing of a transfer petition by the claimants which later on was not pressed and was dismissed by this Court. In that view of the matter, I am inclined to accept the submission of learned counsel for the insurer that the claimants should not be held entitled to interest for the period from June 2013 to 18th February 2016. In the light of discussion made hereinabove the appeal of the insurer is partly allowed and the award is modified to the following extent.[Page No.37]

Single incidence of assault is not cruelty u/s.498A; torture must be continuous and persistent

It goes without saying that matrimonial cruelty occurs within the precincts of the matrimonial home of the wife and she hardly shares her ordeals with someone other than her parents and her near relatives. As a result overwhelming evidence may not be available before the court in a case under Section 498A IPC. But that does not absolve the prosecution from the burden of proving the charge by cogent, coherent and persuasive evidence.[Para No.19]

    In the case in hand, the matter was reported to police by the father of the victim after he brought back his daughter from her matrimonial home. It is apparent on the face of the record that the victim lived with her husband in her matrimonial home only for about 6 months after their marriage. Except the omnibus statement of the victim and her parents that the appellant demanded cash from the parents of the victim and tortured her for fulfillment of his demand, no particular incident of any kind of physical or mental torture meted out to the victim or any other instance of abuse in her matrimonial house has been proved against the appellant. In this regard, the Apex Court, while dwelling on similar issue in Manju Ram Kalita vs. State of Assam reported (2009) 13 SCC 330 held as under:

"21. Cruelty" for the purpose of section 498A, IPC is to be established in the context of section 498A, IPC as it may be a different from other statutory provisions. It is to be determined / inferred by considering the conduct of the man, weighing the gravity or seriousness of his acts and to find out as to whether it is likely to drive the woman to commit suicide etc. It is to be established that the woman has been subjected to cruelty continuously / persistently or at least in close proximity of time of loading the complaint. Petty quarrels cannot be termed as 'cruelty' to attract the provisions of section 498A, IPC. Causing mental torture to the extent that it becomes unbearable may be treated as cruelty."[Para No.26]

    In the case of Prwitish Datta and ors vs. State of Tripura reported in (2014) 1 TLR 848 this High Court held that every case of harassment of the wife either by the husband or his family members cannot be termed as cruelty within the meaning of Section 498A unless the conduct of the husband or his family members, as the case may be, is willful and of such a grave nature which is likely to drive the wife to commit suicide or to cause grave injury or danger to her life, limb or health whether mental or physical. Similarly, in Gautam Nama vs. State of Tripura reported in (2013) 2 TLR 134, this High Court observed that

---

on the basis of mere omnibus statement without specific evidence regarding the particulars of the instances of such torture or cruelty, the accused cannot be held guilty under Section 498A IPC.In the case of Dhananjoy Shil vs. State of Tripura reported in (2013) 2 TLR 1060 also it was held by this Court that a single incident of assault may not amount to an offence under Section 498A IPC because cruelty for the purpose of Section 498A is different from other statutory provisions and it is to be established against the appellant that he subjected his wife to cruelty continuously and persistently. It was also held that petty quarrels cannot be termed as cruelty to attract the provisions of Section 498A IPC.[Para No.27]

Criminal proceedings are not a short cut of other remedies available in law

Growing tendency in business circles and family disputes to convert purely civil disputes into criminal cases and apply pressure though criminal prosecution should be deprecated and discouraged.

   While on this issue, it is necessary to take notice of a growing tendency in business circles to convert purely civil disputes into criminal cases. This is obviously on account of a prevalent impression that civil law remedies are time consuming and do not adequately protect the interests of lenders/creditors. Such a tendency is seen in several family disputes also, leading to irretrievable break down of marriages/families. There is also an impression that if a person could somehow be entangled in a criminal prosecution, there is a likelihood of imminent settlement. Any effort to settle civil disputes and claims, which do not involve any criminal offence, by applying pressure though criminal prosecution should be deprecated and discouraged. In G. Sagar Suri vs. State of UP  [2000 (2) SCC 636], this Court observed :

"It is to be seen if a matter, which is essentially of civil nature, has been given a cloak of criminal offence. Criminal proceedings are not a short cut of other remedies available in law. Before issuing process a criminal court has to exercise a great deal of caution. For the accused it is a serious matter. This Court has laid certain principles on the basis of which High Court is to exercise its jurisdiction under Section 482 of the Code. Jurisdiction under this Section has to be exercised to prevent abuse of the process of any court or otherwise to secure the ends of justice."

 While no one with a legitimate cause or grievance should be prevented from seeking remedies available in criminal law, a complainant who initiates or persists with a prosecution, being fully aware that the criminal proceedings are unwarranted and his remedy lies only in civil law, should himself be made accountable, at the end of such misconceived criminal proceedings, in accordance with law. One positive step that can be taken by the courts, to curb unnecessary prosecutions and harassment of innocent parties, is to exercise their power under section 250 Cr.P.C. more frequently, where they discern malice or frivolousness or ulterior motives on the part of the complainant. Be that as it may.[Para No.10]

Criminal proceeding for sec. 498A can be quash even after judgment and while pending appeal

Accused convicted for the offences punishable u/s.498 A, 504, 506 r/w 34 of IPC - matrimonial dispute - during the pendency of appeal against conviction accused and informant arrived at settlement and decided to end the dispute - sought quashing of proceeding u/s.482 - judgment of conviction quashed.

It is undisputed that during the pendency of the appeal challenging the judgment of conviction, the matrimonial dispute between the applicant no.1 and the applicant no.7 stands settled. As observed in Saloni Rupam Bhartiya { 2015 (4) RCR (Criminal) 172} and Ramesh s/ o Shaligram Dode & Ors. {2014 ALL MR (Cri) 282.}, if during the pendency of the proceedings the matrimonial dispute between the parties stands settled, the Court can quash the criminal proceedings in their entirety by invoking powers under Section 482 of the Code. We find the present case to be a fit one to exercise such jurisdiction.[Para No.5]

“account closed”, “payment stopped”, “referred to the drawer”, “signatures do not match”, “image is not found” attracts sec. 138 of N.I. Act

The above line of decisions leaves no room for holding that the two contingencies envisaged under Section 138 of the Act must be interpreted strictly or literally. We find ourselves in respectful agreement with the decision in NEPC Micon Ltd. (supra) that the expression “amount of money …………. is insufficient” appearing in Section 138 of the Act is a genus and dishonour for reasons such “as account closed”, “payment stopped”, “referred to the drawer” are only species of that genus. Just as dishonour of a cheque on the ground that the account has been closed is a dishonour falling in the first contingency referred to in Section 138, so also dishonour on the ground that the “signatures do not match” or that the “image is not found”, which too implies that the specimen signatures do not match the signatures on the cheque would constitute a dishonour within the meaning of Section 138 of the Act. This Court has in the decisions referred to above taken note of situations and contingencies arising out of deliberate acts of omission or commission on the part of the drawers of the cheques which would inevitably result in the dishonour of the cheque issued by them. For instance this Court has held that if after issue of the cheque the drawer closes the account it must be presumed that the amount in the account was nil hence insufficient to meet the demand of the cheque. A similar result can be brought about by the drawer changing his specimen signature given to the bank or in the case of a company by the company changing the mandate of those authorised to sign the cheques on its behalf.

Prison is primarily for punishing convicts ; not for detaining undertrials in order to send any 'message' to society

While in the additional status report the State says that 

“.... Granting of bail at this early stage may send an adverse message in the society and such crimes should not
be allowed to happen in the national capital. ....”. 

(Emphasis supplied) 

this court is of the view that that cannot be basis for denying bail, if the court is otherwise convinced that no purpose in aid of investigation and prosecution will be served by keeping the accused in judicial custody. Prison is primarily for punishing convicts ; not for detaining undertrials in order to send any ‘message’ to society. The remit of the court is to dispense justice in accordance with law, not to send messages to society. It is this sentiment, whereby the State demands that undertrials be kept in prison inordinately without any purpose, that leads to overcrowding of jails ; and leaves undertrials with the inevitable impression that they are being punished even before trial and therefore being treated unfairly by the system. If at the end of a protracted trial,  the prosecution is unable to bring home guilt, the State cannot give back to the accused the years of valuable life lost in prison. On the other hand, an accused would of course be made to undergo his sentence after it has been awarded, after trial. [Para No.16]

There is no limitation period for 'victim' to file appeal against acquittal

Appeal u/s.372 by victim against acquittal - appeal by mother of deceased - definition of 'victim' - responsibility of the court recording acquittal

It is manifest that Section 372 of the Code relates to appeal from judgment or order of a Criminal Court. It gives to the victim the right to prefer an appeal against any adverse order passed by the trial Court. This amendment forms a part of the entire scheme under which the definition 'victim' was inserted by way of Section 2 (wa) of the Code, so as to allocate an active and constructive role to a victim of an offence in the judicial process arising from an offence.[Para No.8]

Section 2 (wa) of the Code defines the term 'victim' as to mean a person who has suffered any loss or injury caused by reason of the act or omission for which the accused person has been charged and the expression 'victim' includes his or her guardian or legal heir.[Para No.9]

The applicant herein is not only informant / complainant but the mother of deceased also who was allegedly done to death by respondent No.1- husband. The victim of crime, taken in the natural and ordinary sense, was the applicant's daughter. However, now that actual crime victim is no more, the question arises as to whether the applicant being her mother can be recorded as a victim.[Para No.10]

As per proviso to Section 372, an appeal by victim shall lie to the Court to which an appeal ordinarily lies against the order of conviction of such Court. That is to say appeal shall lie either before the Sessions Court or before the High Court, depending upon the Court which tried the case. No such statutory right existed prior to the amendment except under Section 378 (4) of the Code. Under Section 378 (4), a private party can challenge an acquittal by way of appeal only after getting special leave to appeal under Sub-Section (5) of Section 378 within six months if the complainant is a public servant, and within 60 days in every other case.[Para No.13]

We notice, however, that no period of limitation has been prescribed for the victim to prefer appeal against the judgment of acquittal in terms of proviso to Section 372 of the Code.[Para No.14]

It is common experience that in most of the cases informants are not so well educated or come from strata of society, lacking awareness and nuances involved in the proceedings. The semblance given to him/ her is that every care is taken by state machinery. This being so, he or she may not even know the outcome of the proceedings. Is it the duty of Public Prosecutor to ensure that the informant is informed about the judgment acquitting accused against whom he/ she had instituted the case?[Para No.28]

No obligation on legal heirs to intimate the death of the assessee to the revenue/income tax department

Notice u/s. 148 of Income Tax Act issued to the deceased assessee requiting details of finantial transactions made by him in the past - Income tax department contacted the daughter of deceased on phone - they transferred the proceeding on her PAN - order passed against her - order challenged in writ petition

It is well settled law that an alternative statutory remedy does not operate as a bar to maintainability of a writ petition in at least three contingencies, namely, where the writ petition has been filed for the enforcement of any of the Fundamental Rights or where there has been a violation of the principles of natural justice or where the order or notice or proceedings are wholly without jurisdiction or the vires of an Act is challenged. [See Whirlpool Corporation Vs. Registrar of Trade Marks, Mumbai and Others, (1998)8 SCC 1].[Para No.23]

Further, the fact that an assessment order has been passed and it is open to challenge by way of an appeal, does not denude the petitioner of its right to challenge the notice for assessment if it is without jurisdiction. If the assumption of jurisdiction is wrong, the assessment order passed subsequently would have no legs to stand. If the notice goes, so does the order of assessment. It is trite law that if the Assessing Officer had no jurisdiction to initiate assessment proceeding, the mere fact that subsequent orders have been passed would not render the challenge to jurisdiction infructuous. In Calcutta Discount Co. Ltd. Vs. Income Tax Officer, Companies District I Calcutta and Another, AIR 1961 SC 372 the Supreme Court has held as under:-

"27. .....It is well settled however that though the writ of prohibition or certiorari will not issue against an executive authority, the High Courts have power to issue in a fit case an order prohibiting an executive authority from acting without jurisdiction. Where such action of an executive authority acting without jurisdiction subjects or is likely to subject a person to lengthy proceedings and unnecessary harassment, the High Courts, it is well settled, will issue appropriate orders or directions to prevent such consequences.
28. Mr Sastri mentioned more than once the fact that the Company would have sufficient opportunity to raise this question viz. whether the Income Tax Officer had reason to believe that underassessment had resulted from non-disclosure of material facts, before the Income Tax Officer himself in the assessment proceedings and if unsuccessful there before the appellate officer or the Appellate Tribunal or in the High Court under Section 66(2) of the Indian Income Tax Act. The existence of such alternative remedy is not however always a sufficient reason for refusing a party quick relief by a writ or order prohibiting an authority acting without jurisdiction from continuing such action.
29. In the present case the Company contends that the conditions precedent for the assumption of jurisdiction under Section 34 were not satisfied and come to the court at the earliest opportunity. There is nothing in its conduct which would justify the refusal of proper relief under Article 226. When the Constitution confers on the High Courts the power to give relief it becomes the duty of the courts to give such relief in fit cases and the courts would be failing to perform their duty if relief is refused without adequate reasons....."[Para No.24]

Certificate u/s.65B is not necessary if original document (electronic device) is produced as evidence

How to prove electronic evidence whithout producing certificate required u/s.65B of Evidence Act?

The reference is thus answered by stating that:

(a) Anvar P.V. (supra), as clarified by us hereinabove, is the law declared by this Court on Section 65B of the Evidence Act. The judgment in Tomaso Bruno (supra), being per incuriam, does not lay down the law correctly. Also, the judgment in SLP (Crl.) No. 9431 of 2011 reported as Shafhi Mohammad (supra) and the judgment dated 03.04.2018 reported as (2018) 5 SCC 311, do not lay down the law correctly and are therefore overruled.

(b) The clarification referred to above is that the required certificate under Section 65B(4) is unnecessary if the original document itself is produced. This can be done by the owner of a laptop computer, computer tablet or even a mobile phone, by stepping into the witness box and proving that the concerned device, on which the original information is first stored, is owned and/or operated by him. In cases where the “computer” happens to be a part of a “computer system” or “computer network” and it becomes impossible to physically bring such system or network to the Court, then the only means of providing information contained in such electronic record can be in accordance with Section 65B(1), together with the requisite certificate under Section 65B(4). The last sentence in Anvar P.V. (supra) which reads as “…if an electronic record as such is used as primary evidence under Section 62 of the Evidence Act…” is thus clarified; it is to be read without the words “under Section 62 of the Evidence Act,…” With this clarification, the law stated in paragraph 24 of Anvar P.V. (supra) does not need to be revisited.

Municipal Authority is liable to pay compensation for injury cause due to fall of road-side tree

By a catena of decisions, the law is well settled that if there is a tree standing on the defendant's land which is dried or dead and for that reason may fall and the defect is one which is either known or should have been known to the defendant, then the defendant is liable for any injury caused by the fall of the tree (see Brown Vs. Harrison (1947) 63 Law Times Reports 484; Quinn Vs. Scott (1965) 1 W.L.R. 1004, Mackie Vs. Dumbartonshire County Council, (1927) W.N. 247. 

The duty of the owner/occupier of the premises by the side of the road whereon persons lawfully pass by, extends to guarding against what may happen just by the side of the premises on account of anything dangerous on the premises. The premises must be maintained in a safe state of repair. The owner/occupier cannot escape the liability for injury caused by any dangerous thing existing on the premises by pleading that he had employed a competent person to keep the premises in safe repairs. In Municipal Corporation of Delhi Vs. Subhagwanti and Ors. AIR 1966 SC 1750 a clock tower which was 80 years old collapsed in Chandni Chowk Delhi causing the death of a number of persons. Their Lordships held that the owner could not be permitted to take a defence that he neither knew nor ought to have known the danger. "The owner is legally responsible irrespective of whether the damage is caused by a patent or a latent defect," - said their Lordships. In our opinion the same principle is applicable to the owner of a tree standing by the side of a road. If the tree is dangerous in the sense that on account of any disease or being dead the tree or its branch is likely to fall and thereby injure any passer-by then such tree or branch must be removed so as to avert the danger to life. It is pertinent to note that it is not the defence of the Municipal Corporation that vis major or an act of God such as storm, tempest, lightning or extraordinary heavy rain had occurred causing the fall of the branch of the tree and hence the Corporation was not liable.

Petty quarrels arising in conjugal life does not amount to cruelty u/s. 498A IPC

With regard to the charge of Section 498A IPC against the appellant, the learned trial Judge did not assign any reason in his judgment as to why he found the appellant guilty of offence punishable under Section 498A IPC. It is apparent on the face of the record that the appellant as well as his in laws belonged to the poor strata of society. It was, therefore, not unlikely that there would be discord and differences in the domestic life of the appellant. Petty quarrels arising out of such discord and differences in conjugal life would not amount to cruelty within the meaning of clause (a) of Section 498A IPC unless it is proved that the cruelty meted out to the wife was a willful conduct of the appellant which was likely to affect her normal mental frame and drive her to commit suicide out of depression or to cause grave injury or danger to her life, limb or her mental or physical health. For establishing the commission of offence under clause (b) of Section 498A IPC, it has to be proved that the appellant or his relatives subjected his deceased wife to harassment with a view to coercing her or her relatives to meet his demands for dowry or such harassment was made due to the failure of her or her relatives to meet such demand. Now, we have to ascertain from the evidence recorded by the trial court as to whether prosecution has been able to bring home the charge under Section 498A IPC to the accused. [Para No.47]

  In the case of Prwitish Datta and Ors.(supra) this High Court held that every case of harassment either by the husband or his family members to the wife cannot be termed as cruelty within the meaning of Section 498A unless the conduct of the husband or his family members, as the case may be, is wilful and of such a grave nature which is likely to drive the wife to commit suicide or to cause grave injury or danger to her life, limb or health whether mental or physical. Similarly, in Gautam Nama (supra) which has also been relied upon by learned counsel of the appellant, this High Court observed that on the basis of mere omnibus statement without specific evidence regarding the particulars of the instances of such torture or cruelty, the accused cannot be held guilty under Section 498A IPC. In the case of Dhananjoy Shil (supra) also it was held by this Court that a single incident of assault may not amount to an offence under Section 498A IPC because cruelty for the purpose of Section 498A is different from other statutory provisions and it is to be established against the appellant that he subjected his wife to cruelty continuously and persistently. It was also held that petty quarrels cannot be termed as cruelty to attract the provisions of Section 498A IPC.[Para No.48]

Mere breach of contract cannot give rise to criminal prosecution for cheating

Further, on careful reading of the charge, it appears that the Court has framed the charges of offences under Sections 409, 420, 467, 468, 471 and 120-B of IPC. On reading of provisions of IPC, of which charges are framed against the petitioners as well as principle laid down in this regard by the Hon'ble Apex Court in its various pronouncements, before applying the Section 409 of IPC, consideration of Section 405 of IPC is necessary. Bare reading of Section 405 IPC shows that the accused is either entrusted with a property or acquires dominion over the property and misappropriates the same dishonestly or converts the same for its own use or dishonestly uses or disposes of that property. In criminal breach of trust, the person comes into possession of a property honestly but he develops dishonest intention subsequent to his acquiring dominion over the property by way of entrustment or otherwise. To constitute the offence of criminal breach of trust following ingredients must be fulfilled:-

(i) There has to be some property.
(ii) The said property must be entrusted to someone with or without any contract.
(iii) The dominion of the property was shifted from complainant to the accused.
(iv) The accused person refuses to return/restore the said property to the rightful owner when demanded.
(v) The accused having misappropriated/converted to its own use/disposed the property refuses to restore the property to the complainant/lawful owner.

15. When offence of criminal breach of trust committed by any public servant or by banker merchant or agent then they shall be punished under Section 409 of IPC.

16. Further in order to apply section 420 IPC, the essential ingredients are:-

(i) cheating;
(ii) dishonestly inducement to deliver property or to make, alter or destroy any valuable security or anything which is sealed or signed or is capable of being converted into a valuable security, and
(iii) mens-rea of the accused at the time of making the inducement."

17. Further, under the IPC, the cheating is defined in Section 415 and on reading of the said provision in the light of legal verdicts passed in this regard, the following ingredients are necessary to constitute the offence of cheating :-

(1) Deception of any person.
(2) (a) Fraudulently or dishonestly inducing that person;
(i) to deliver any property to any person; or
(ii) to consent that any person shall retain any property; or
(b) intentionally inducing that person to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property.

Order of process issue u/s.204 of Cr.P.C. can not be passed summarily and without applying judicial mind

A  perusal of this impugned summoning order indicates that learned Magistrate had noted in the impugned order the contents of complaint and evidences u/s 200 and 202 Cr.P.C. but had neither any discussion of evidence was made, nor was it considered as to what overt act had allegedly been committed by accused. This contention of learned counsel for the applicants cannot be ruled out that leaned counsel have noted the contents of complaint and statements without considering its probability or prima facie case, and whether he had actually considered statements u/s 200, 202 Cr.P.C. or the documents of the original. At stage of summoning, the Magistrate is not required to meticulously examine or evaluate the evidence. He is not required to record detailed reasons. A brief order which indicate the application of mind is all that is expected of him at the stage. [Para No.7]

8. But in impugned order there is nothing which may indicate that learned Magistrate had even considered facts of the case in hand before passing the summoning order. Impugned order clearly lacks the reflection of application of judicial discretion or mind. Nothing is there which may show that learned Magistrate, before passing of the order under challenge had considered facts of the case and evidence or law. Therefore it appears that, in fact, no judicial mind was applied before the passing of impugned order of summoning. Such order cannot be accepted as a proper legal judicial order passed after following due procedure of law. [Para no.8]

9. In ruling "M/s. Pepsi Food Ltd. & another vs. Special Judicial Magistrate & others, 1998 UPCrR 118" Hon'ble Supreme Court held :-

"Summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. It is not that the complainant has to bring only two witnesses to support his allegations in the complaint to have the criminal law set into motion. The order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. He has to examine the nature of allegations made in the complaint and the evidence both oral and documentary in support thereof and would that be sufficient for the complainant to succeed in bringing charge home to the accused. It is not that the Magistrate is a silent spectator at the time of recording of preliminary evidence before summoning the accused. Magistrate had to carefully scrutinize the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations or otherwise and then examine if any offence is prima facie committed by all or any of the accused."

Question of title of the property is not germane for decision of the eviction suit

It may be pointed out that it is well settled law that the question of title of the property is not germane for decision of the eviction suit. In a case where a plaintiff institutes a suit for eviction of his tenant based on the relationship of the landlord and tenant, the scope of the suit is very much limited in which a question of title cannot be gone into because the suit of the plaintiff would be dismissed even if he succeeds in proving his title but fails to establish the privity of contract of tenancy.

In a suit for eviction based on such relationship the Court has only to decide whether the defendant is the tenant of the plaintiff or not, though the question of title is disputed, may incidentally be gone into, in connection with the primary question for determining the main question about the India Automobiles & Co. [1990 (4) SCC 286 at para 21] this Court had an occasion to deal with similar controversy. In the said decision this Court observed that in a suit for eviction between the landlord and tenant, the Court will take only a prime facie decision on the collateral issue as to whether the applicant was landlord. If the Court finds existence of relationship of landlord and tenant between the parties it will have to pass a decree in accordance with law. It has been further observed that all that the Court has to do is to satisfy itself that the person seeking eviction is a landlord, who has prima facie right to receive the rent of the property in question. In order to decide whether denial of landlord's title by the tenant is bonafide the Court may have to go into tenant contention on the issue out the Court is not to decide the question of title finally as the Court has to see whether the tenant's denial of title of the landlord is bonafide in the circumstances of the case.[Para No.9]

Sec.420 of IPC; in absence of elements of cheating, does not automatically extends the limitation of time barred complaint u/s. 138 of N.I.Act

Dishonor of cheque - demand notice issued - complainant alleges that after receipt of notice, accused assured for payment within two days but failed - complaint for the offences punishable u/s. 138 of N.I.Act and 420 of I.P.C. filed without any application for condonation of delay.

Held: If no elements of offence of 'cheating' are found in the complaint then cognizance has to be taken u/s.142(b) of N.I.Act. Sec.420 of IPC; in absence of elements of cheating, does not automatically extends the limitation of time barred complaint u/s. 138 of N.I.Act 

   In this regard, this Court is of the view that both in Section 138 and Section 142 of the NI Act, a special provision, distinct from the provisions of the CrPC in respect of limitation in taking cognizance has been made. It is apparent that the special statute rolls out distinctly different procedure. [Para No.6]

   It is equally well settled that if the special statute provides a different procedure, the provisions of the CrPC would not apply to the extent of inconsistency. [Para No.7]

Having regard to Section 138 and Section 142 of the NI Act, if the cognizance of dishonor of cheque for insufficiency of fund is taken in absence of element of 'cheating', the cognizance has to be taken under Section 142(b) of the NI Act. [Para No.8]

Bail application u/s.167(2) of CrPC must be dispose of forthwith

Now, the law in relation to the right of an accused to bail in the event charge-sheet is not filed within the stipulated time-frame under section 167(2) Cr.P.C. is well settled. In Achpal alias Ramswaroop & Anr. vs. State of Rajasthan : (2019) 14 SCC 599, the Supreme Court has reiterated the following position of law:

"11. The law on the point as to the rights of an accused who is in custody pending investigation and where the investigation is not completed within the period prescribed under Section 167(2) of the Code, is crystallised in the judgment of this Court in Uday Mohanlal Acharya v. State of Maharashtra. This case took into account the decision of this Court in Hitendra Vishnu Thakur v. State of Maharashtra, Sanjay Dutt (2) v. State and Bipin Shantilal Panchal v. State of Gujarat. Pattanaik, J. (as the learned Chief Justice then was) speaking for the majority recorded conclusions in para 13 of his judgment. For the present purposes, we may extract Conclusions 3 and 4 as under: (Uday Mohanlal Acharya case, SCC p. 473, para 13) "13. ... 3. On the expiry of the said period of 90 days or 60 days, as the case may be, an indefeasible right accrues in favour of the accused for being released on bail on account of default by the investigating agency in the completion of the investigation within the period prescribed and the accused is entitled to be released on bail, if he is prepared to and furnishes the bail as directed by the Magistrate.

4.  When an application for bail is filed by an accused for enforcement of his indefeasible right alleged to have been accrued in his favour on account of default on the part of the investigating agency in completion of the investigation within the specified period, the Magistrate/court must dispose of it forthwith, on being satisfied that in fact the accused has been in custody for the period of 90 days or 60 days, as specified and no charge-sheet has been filed by the investigating agency. Such prompt action on the part of the Magistrate/court will not enable the prosecution to frustrate the object of the Act and the legislative mandate of an accused being released on bail on account of the default on the part of the investigating agency in completing the investigation within the period stipulated."

Accused is not entitled for default bail u/s.167(2) of Cr.P.C. if chargesheet has already been filed before his surrender in the court

Offence u/s. 420, 406, 409, 465, 467, 468, 471, 120-B of IPC and 7 & 13(1) A of Prevention of Corruption Act, 1988 - Chargesheet against one accused filed on 23.01.2019 - applicant-accused shown as absconded - on 23.11.2019 applicant-accused surrendered before the court - application for default bail u/s.167(2) of Cr.P.C. filed om 24.02.2020

Held: It is not essential for a person to be arrested before chargesheet can be presented against him. The only requirement for applicability of the proviso to Section 167(2) Cr.P.C. is that investigation should be pending against the petitioner-accused and no investigation can be said to be pending if chargesheet is filed before his arrest or surrender before the court.

   A perusal of the challan presented on 23.01.2019, a copy whereof is annexed as Annexure P-2, shows that list of the case property had been filed therewith along with a list of witnesses. Thereafter, the facts of the case have been narrated. The last few lines are reproduced:-

"The warrants have been got issued from the Learned Illaqa Magistrate against Sandeep Kumar son of Jagdish Chander r/o Panj Ke Utar Police Station Guruharsahai, Rishu Matneja w/o Sandeep Kumar r/o Panj Ke Utar Police Station Guruharsahai, Jaswinder Pal Singh son of Gurmeet Singh r/o Dashmesh Nagar Jalalabad, Jasmeet Singh son of Amarjeet Singh r/o Jalalabad. Hansa Singh, Inspector Grade 2, resident of Shamshabad, District Fazilka, Harpreet Singh son of Gurmeet Singh resident of Dashmesh Nagar, Jalalabad and after arresting them supplementary challan would be presented in the court and after getting evidence of involvement of staff of Punjab National Bank, a separate supplementary challan would be submitted against them. The pending enquiry of the case after taking the record and thereafter supplementary challan shall be presented. As per the evidence, the investigation till and the evidence collected on file challan under Sections 420, 465, 467, 468, 471, 406, 120-B IPC against accused Sandeep Kumar is required to be presented and the same after being prepared against Sandeep Kumar under Sections 420, 465, 467, 468, 471, 406, 120-B IPC is being presented to the Court. The witnesses mentioned
in Column no.6 shall give their statements as required."[Para No.11]

From the aforementioned reproduction from the challan it is evident that evidence necessary for commencement of trial against the petitioner and his co-accused has/had been collected by the investigating agency. The petitioner was kept in column No.2 only because he had not been arrested as is the practice in the State of Punjab. Learned counsel for the petitioner has not refuted the submission of the learned State counsel that such a practice exists in the State of Punjab. Warrants of arrest had been requested for and this would not have been the case if the petitioner had not been found guilty. The challan dated 24.02.2020 against the petitioner was only a formality. In Dinesh Dalmia (supra) it has been held as follows:-

In matrimonial dispute, secret recording is admissible in evidence if found to be relevant

Electronic Evidence obtained illegally - Petition for divorce u/s. 13(1)(ia) of The Hindu Marriage Act - CCTV footage recorded without knowledge of wife - In recording wife was found to be talking on phone with her lady friend in a manner derogatory and defamatory to the husband - Husband produced CD of this recording as the evidence in divorce proceeding - Wife in her written statements opposed that CD to be tampered with and inadmissible as it is procured in breach of her right of privacy - After this objection husband made an application to family court to get the genuineness of CD examined from Forensic Lab - Family allowed that application and the same challenged by wife before High Court

Can CCTV audio-video secretly recorded by a spouse be permitted to be used against other spouse in a matrimonial dispute?

Held: In matrimonial dispute, secret recording is admissible in evidence if found to be relevant to the facts-in-issue; and the other party can initiate legal action action the party for adopting illegal means; but such action would not render the illegally obtained evidence inadmissible if it is otherwise relevant for the  purpose of deciding the matrimonial dispute between the parties.

   The sequitur to the aforesaid constitutional and legal landscape is that :

(a) The settled rule, purely from the standpoint of the law of evidence, is that evidence is admissible so long as it is relevant, regardless of how it is collected. Digressing from this settled position would have wide ramifications and consequences; and would be a serious hindrance to judicial proceedings across the board, in several foreseeable and unforeseeable ways. On the other hand, the possible misuse of this rule of evidence, particularly in the context of the right to privacy, can be addressed by prudent exercise of judicial discretion by a court not at the time of receiving evidence but at the time of using evidence at the stage of adjudication ;

Deposition of witness and certificate u/s.65B is sufficient to prove electronic evidence

How to prove photos and screenshot sent by one person to another? (Mode of proof)

Can snapshot of chat from a mobile handset be read in evidence without producing that mobile handset?

Matrimonial dispute - divorce sought by husband - Ground of adultery - Husband received photos, telephonic conversation and snapshot of chat between wife and her lover - Electronic evidence - Mode of proof - compliance to be made 

Held: Witness produced certificate u/s.65B and deposed that he had taken the print outs from the mobile phone, deserves to be read in evidence.

   Learned counsel for the wife contended that the photographs placed on the file as Annexures A-1 to A-8, do not stand duly proved on the record as required under Section 65-B of the Indian Evidence Act, 1872 (for short 'the Act of 1872') and in support of this contention, he relied upon Anvar P.V. vs. P.K. Basheer and others, 2015(1) SCC (Civil) 27, wherein the Hon'ble Apex Court observed that "in case of CD, VCD, chip, etc., the same would be accompanied by the certificate in terms of Section 65B obtained at the time of taking the document, without which, the secondary evidence pertaining to that electronic record, was inadmissible."[Para No.9]

   However, we do not find this contention to be tenable because PW-4 Sunil Kumar, the photographer, tendered the original certificate under Section 65B of the Act of 1872 on the record as Ex.PW-4/A and he also specifically deposed that he had taken the print out of the photographs, i.e. Annexures A-1 to A-8, from the internal memory of the mobile phone brought to his shop by the husband. Moreover, in a subsequent verdict, as rendered by the Hon'ble Supreme Court in the case titled as State by Karnataka Lokayukta Police Station, Bengaluru vs M. R Hiremath, 2019 (3) SCC (Cri) 109, it has been held while referring to the above- discussed observations, as made in Anvar P.V.'s case (supra), that :-