Miscellaneous

Summary of Question- Search and Recovery under section 50 of the Narcotic Drugs Act.

Question – Whether consent given by the accused for conduct of search by Police  and waving of his right by the accused to have search conducted in the presence of Magistrate or Gazetted Officer which  is required under section 50 of the Narcotic Drugs and Psychotropic Substances Act (NDPS Act), is sufficient to comply the provisions of section 50 of NDPS Act.

Answer-No. 

Rationale- 

In 2018 (5) SCJ 450, the prosecution's plea that accused waived his right to have search conducted in presence of Magistrate or Gazetted Officer was not entertained. The prosecution took up the plea that the police party had informed the accused of his right  under Section 50 and that the accused had consented to have search conducted by police itself. The Supreme Court did not accept the plea and reversed the conviction. Observation made by the Apex Court are quoted below:


"What  is  the  true  scope  and  object  of  Section  50 of  the  NDPS  Act,  what  are  the  duties,  obligation  and the   powers   conferred   on   the  authorities   under Section   50   and   whether   the   compliance   of requirements   of   Section   50   are   mandatory   or directory,  remains  no  more  res  integra  and  are  now settled   by  the  two  decisions  of  the  Constitution Bench  of  this  Court  in  State  of  Punjab  vs.  Baldev Singh  (1999)  6  SCC  172  and  Vijaysinh  Chandubha Jadeja  (supra). 22."

" Indeed,  the  latter  Constitution  Bench  decision rendered   in   the   case  of   Vijaysinh  Chandubha Jadeja  (supra)   has   settled   the   aforementioned questions   after   taking   into   considerations   all previous  case  law  on  the  subject."

" Their   Lordships   have   held   in   Vijaysinh Chandubha  Jadeja  (supra)  that  the  requirements  of Section  50  of  the  NDPS  Act  are  mandatory  and, therefore,   the  provisions  of  Section  50  must  be strictly  complied  with.    It  is  held  that  it  is  imperative on  the  part  of  the  Police  Officer  to  apprise  the person  intended  to  be  searched  of  his  right  under Section  50  to  be  searched  only  before  a  Gazetted officer  or  a  Magistrate.  It  is  held  that  it  is  equally make  the  suspect  aware  of  the  existence  of  his  right to   be  searched  before  a  Gazetted  Officer  or  a Magistrate,  if  so  required  by  him  and  this  requires  a strict  compliance.  It  is  ruled  that  the  suspect  person may  or  may  not  choose  to  exercise  the  right provided  to  him  under  Section  50  of  the  NDPS  Act but  so  far  as  the  officer  is  concerned,  an  obligation is  cast  upon  him  under  Section  50  of  the  NDPS  Act to  apprise  the  suspect  of  his  right  to  be  searched before  a  Gazetted  Officer  or  a  Magistrate.  (See  also Ashok  Kumar  Sharma  vs.  State  of  Rajasthan, 2013  (2)  SCC  67  and  Narcotics  Control  Bureau  vs. Sukh  Dev  Raj  Sodhi,  2011  (6)  SCC  392)"

“We do not agree to this finding of the two Courts below as, in our opinion, a search and recovery made from the Appellant of the alleged contraband "Charas" does not satisfy the mandatory requirements of Section 50 as held by this Court in the case of Vijaysinh Chandubha Jadeja (supra). This we say for the following reasons.

 First, it is an admitted fact emerging from the record of the case that the Appellant was not produced before any Magistrate or Gazetted Officer; Second, it is also an admitted fact that due to the aforementioned first reason, the search and recovery of the contraband "Charas" was not made from the Appellant in the presence of any Magistrate or Gazetted Officer; Third, it is also an admitted fact that none of the police officials of the raiding party, who recovered the contraband "Charas" from him, was the Gazetted Officer and nor they could be and, therefore, they were not empowered to make search and recovery from the Appellant of the contraband "Charas" as provided Under Section 50 of the NDPS Act except in the presence of either a Magistrate or a Gazetted Officer; Fourth, in order to make the search and recovery of the contraband articles from the body of the suspect, the search and recovery has to be in conformity with the requirements of Section 50 of the NDPS Act…….”

 

 

Summary of Question- Non-signing of  Vakalatnama / Memo of Appeal

Question – Whether non signing of Vakalatnama / Memo of Appeal can be corrected.

Answer- Yes, if it is not deliberate.

Rationale-

A three Judges Bench decision of the Hon’ble Supreme Court in a case reported in AIR 2006 SC 269 observed and held as quoted below:

“Order 3 Rule 4 CPC deals with appointment of pleaders. Relevant portion thereof is extracted below :

4. Appointment of pleader.(1) No pleader shall act for any person in any Court, unless he has been appointed for the purpose by such person by a document in writing signed by such person or by his recognized agent or by some other person duly authorized by or under a power-of-attorney to make such appointment.

(2) Every such appointment shall be filed in Court and shall, for the purposes of sub-rule (1), be deemed to be in force until determined with the leave of the Court by a writing signed by the client or the pleader, as the case may be, and filed in Court, or until the client or the pleader dies, or until all the proceedings in the suit are ended so far as regards the client.

[Explanation. For the purposes of this sub-rule, the following shall be deemed to be proceedings in the suit, --

(a) x x x

(b) x x x

(c) an appeal from any decree or order in the suit, ..."

" It is, thus, now well-settled that any defect in signing the memorandum of appeal or any defect in the authority of the person signing the memorandum of appeal, or the omission to file the vakalatnama executed by the appellant, along with the appeal, will not invalidate the memorandum of appeal, if such omission or defect is not deliberate and the signing of the Appeal memorandum or the presentation thereof before the appellate court was with the knowledge and authority of the appellant. Such omission or defect being one relatable to procedure, it can subsequently be corrected………………. "
 

Summary of Question-  Revision under section 397 CR.P.C and Quashing under 482 Cr . P.C  to challenge an order under section 200 to 204 Cr. P.C 

Question – Whether  remedy of  Revision under section 397 Cr.P.C and remedy  of Quashing  under section 482 Cr.P.C   are available to challenge an order under section 200 to 204 Cr.P.C in the matter of issuance of process.

Answer- Yes. 
 

Rationale-

The Hon’ble Supreme Court in a case reported in (2013) 15 SCC 624 observed and held:.

"Having regard to the said categorical position stated by this Court in innumerable decisions resting with the decision in Rajendra Kumar Sitaram Pande (supra), as well as the decision in K.K. Patel (supra), it will be in order to state and declare the legal position as under:

(i) The order issued by the Magistrate deciding to summon an accused in exercise of his power Under Sections 200 to 204 Code of Criminal Procedure would be an order of intermediary or quasi-final in nature and not interlocutory in nature.

(ii) Since the said position viz., such an order is intermediary order or quasi-final order, the revisionary jurisdiction provided Under Section 397, either with the District Court or with the High Court can be worked out by the aggrieved party.

(iii) Such an order of a Magistrate deciding to issue process or summons to an accused in exercise of his power Under Section 200 to 204 Code of Criminal Procedure, can always be subject matter of challenge under the inherent jurisdiction of the High Court Under Section 482 Code of Criminal Procedure."

 

Summary of Question- Rejection of Anticipatory Bail and arrest

Question – Whether court can order for Arest while rejecting Anticipatory Bail. 

Answer- No.

Rationale-

In the case reported in  (2003) 2 SCC 649 , the Hon’ble Supreme Court  observed and held as quoted below :

"In the instant case the appellants had not been arrested. It appears that the result of the investigation showed that no amount had been defalcated. We are here not concerned with the correctness of the conclusion that the investigating officer may have reached. What is, however, significant is that the investigating officer did not consider it necessary, having regard to all the facts and circumstances of the case, to arrest the accused. In such a case there was no justification for the High Court to direct the State to arrest the appellants against whom the first information report was lodged, as it amounted to unjustified interference in the investigation of the case. The mere fact that the bail applications of some of the appellants had been rejected is no ground for directing their immediate arrest. In the very nature of things, a person may move the Court on mere apprehension that he may be arrested. The Court may or may not grant anticipatory bail depending upon the facts and circumstances of the case and the material placed before the Court. There may, however, be cases where the application for grant of anticipatory bail may be rejected and ultimately, after investigation, the said person may not be put up for trial as no material is disclosed against him in the course of investigation. The High Court proceeded on the assumption that since petitions for anticipatory bail had been rejected, there was no option open for the State but to arrest those persons. This assumption, to our mind, is erroneous. A person whose petition for grant of anticipatory bail has been rejected may or may not be arrested by the investigating officer depending upon the facts and circumstances of the case, nature of the offence, the background of the accused, the facts disclosed in the course of investigation and other relevant considerations.”

 

Summary of Question- Remand by Division Bench to single Judge

Question – Can a Division Bench in LPA remand the writ petition  to single Judge. 

Answer- No, because  Single Judge is not subordinate to Division Bench in Intra-Court Appeal

Rationale-

The Hon’ble Supreme Court observed and held in the case reported in   2018 (10) SCALE 222  as under:


"We have very serious reservations whether the Division Bench in an intra court appeal could have remitted a writ petition in the matter of moulding the relief. It is the exercise of jurisdiction of the High Court under Article 226 of the Constitution of India. The learned Single Judge as well as the Division Bench exercised the same jurisdiction. Only to avoid inconvenience to the litigants, another tier of screening by the Division Bench is provided in terms of the power of the High Court but that does not mean that the Single Judge is subordinate to the Division Bench. Being a writ proceeding, the
Division Bench was called upon, in the intra Court appeal, primarily and mostly to consider the correctness or otherwise of the view taken by the learned Single Judge. Hence, in our view, the Division Bench needs to consider the appeal(s) on merits by deciding on the correctness of the judgment of the learned Single Judge, instead or remitting the matter to the learned Single Judge."

 

Summary of Question- Order under section 156(3) for Investigation 

Question – Whether registration of FIR is mandatory If a magistrate orders for investigation under section 156(3) but does not specifically orders for registration of FIR. . 

Answer-Yes. 

Rationale-

The Hon'ble Supreme Court in a case reported in (2016) 6 SCC 273  observed and held as quoted below:

  " …..This Court explained that registration of an F.I.R. involves only the process of recording the substance of information relating to commission of any cognizable offence in a book kept by the officer incharge of the concerned police station. In paragraph 11 of the aforementioned case, the law was further elucidated by pointing out that to enable the police to start investigation,  it is open to the Magistrate to direct the police to register an F.I.R. and even where a Magistrate does not do so in explicit words but directs for investigation Under Section 156(3) of the Code, the police should register an F.I.R. ……………….”

 

Summary of Question- Informant and Investigation Officer same

Question – Whether accused is entitled for acquittal if Informant and Investigation Officer is same. 

Answer- Answer is in affirmative  in view of a three Judges Bench decision of the Hon'ble Supreme Court . But a two Judges Bench of the Hon'ble Supreme Court respectfully disagreed and recommended  for reconsideration. 

Rationale-

1. The Hon’ble Supreme Court in a case reported in  2018 (9) SCALE 663 held as under:

 “It is therefore held that a fair investigation, which is but the very foundation of fair trial, necessarily postulates that the informant and the investigator must not be the same person. Justice must not only be done, but must appear to be done also. Any possibility of bias or a predetermined conclusion has to be excluded. This requirement is all the more imperative in laws carrying a reverse burden of proof.”

 
2.However, in SLP vide (CRIMINAL) Diary No(s). 39528/2018 , vide order dated 17-01-2019, a bench of Hon’ble Mr. Justice  UDAY UMESH LALIT  and Hon'ble Mr. Justice M.R. SHAH expressed its disagreement with the view taken by the three-judge bench in the said case:
 
"Having considered the submissions and the cases referred to in the judgment in Mohan Lal (Supra) as well as other cases, in our considered view, the matter requires consideration by a Bench of three Hon’ble Judges. We may prima facie express that we find it difficult to accept the view taken in Mohan Lal (Supra). Some of the decided cases have maintained a distinction in that where the investigation was conducted by the informant himself, appropriate weightage was given while appreciating the evidence. In a given case, where the complainant himself had conducted investigation, such aspect of the matter can certainly be given due weightage while assessing the evidence on record but it would be completely a different thing to say that the trial itself would be vitiated for such infraction. But Mohan Lal (Supra) has ruled that the trial itself would stand vitiated on that count. Since we are in respectful disagreement with the view taken in Mohan Lal (Supra), this matter may require consideration by a Bench of atleast three Hon’ble Judges. We, therefore, direct the Registry to place the papers before the Hon’ble the Chief Justice of India to constitute a Bench of appropriate strength to consider the matter."

 

Summary of Question- Duration of Stay in Civil/Criminal Proceedings

Question – Can duration Stay in civil or criminal proceedings ,  generally, be  beyond 6 months.  

Answer- No. 

Rationale-

A three judges bench of the Apex court in a  case  reported in AIR 2018 SC  2039 observed and held:


" In view of above, situation of proceedings remaining pending for long on account of stay needs to be remedied. Remedy is required not only for corruption cases but for all civil and criminal cases where on account of stay, civil and criminal proceedings are held up. At times, proceedings are adjourned sine die on account of stay. Even after stay is vacated, intimation is not received and proceedings are not taken up. In an attempt to remedy this, situation, we consider it appropriate to direct that in all pending cases where stay against proceedings of a civil or criminal trial is operating, the same will come to an end on expiry of six months from today unless in an exceptional case by a speaking order such stay is extended. In cases where stay is granted in future, the same will end on expiry of six months from the date of such order unless similar extension is granted by a speaking order. The speaking order must show that the case was of such exceptional nature that continuing the stay was more important than having the trial finalized. The trial Court where order of stay of civil or criminal proceedings is produced, may fix a date not beyond six months of the order of stay so that on expiry of period of stay, proceedings can commence unless order of extension of stay is produced."

"....... duration of stay should not exceed six months, unless extension is granted by a specific speaking order, as already indicated. Mandate of speedy justice applies to the PC Act cases as well as other cases where at trial stage proceedings are stayed by the higher court i.e. the High Court or a court below the High Court, as the case may be. In all pending matters before the High Courts or other courts relating to PC Act or all other civil or criminal cases, where stay of proceedings in a pending trial is operating, stay will automatically lapse after six months from today unless extended by a speaking order on above parameters. Same course may also be adopted by civil and criminal appellate/revisional courts under the jurisdiction of the High Courts. The trial courts may, on expiry of above period, resume the proceedings without waiting for any other intimation unless express order extending stay is produced."

" The High Courts may also issue instructions to this effect and monitor the same so that civil or criminal proceedings do not remain pending for unduly period at the trial stage."
 

Summary of Question-Discharge and appreciation of  Evidence 

Question – Can the court appreciate Evidence while considering duration Discharge.

Answer- No, if the evidence is yet to be tested by cross examination. 

Rationale-

 A three Judges Bench of the Hon’ble Supreme Court in Criminal Appeal No. 1051 of 2018 decided on 23rd August 2018 distinguished its decision in the Yogesh case and observed as under:

“While there can be no dispute on the proposition that has been laid by this Court in paragraph 16 of Yogesh alias Sachin Jagdish Joshi (supra) what has happened in the present case is that the statements recorded in the course of investigation had been weighed, banalyzed and appreciated. In a situation where the said evidence is yet to be tested by cross examination and the veracity of either of the two versions is yet to be established, it cannot be said that there are two possible views of the matter. The observations of this Court in Yogesh alias Sachin Jagdish Joshi (supra) will, therefore, not assist the accused.”

 

Summary of Question- Conversion of 482 petition to 397 revision  

Question – Whether high Court is empowered to convert a petition under section 482 cr.p.c to revision under 397 cr.p.c.

Answer- Yes.

Rationale-

Following observation of the Hon’ble supreme Court in a case reported in 1980 SCC (cri) 72.

“In our constitutional order, fragrant with social justice, broader considerations of final relief must govern the judicial process save where legislative interdict plainly forbids that course. The dismissal by the High Court, on a little point of procedure, has led to this otherwise avoidable petition for special leave, at a time when torrents of litigation drown this Court with an unmanageable flood of dockets. The negative order under challenge was made by the High Court refusing to exercise its inherent power under Section 482 of the Criminal Procedure Code (the Code, for short) because the subject fell under its revisional, power under Section 397 and this latter power was not unsheathed because a copy of the short order of the trial court had not been filed as required, not by the Code, but by a High Court rule, although the original order, together with all the records, had been sent for and was before the court. A besetting sin of our legal system is the tyranny of technicality in the name of finical legality, hospitably entertained sometimes in the halls of justice. Absent orientation, justicing becomes 'computering' and ceases to be social engineering.”

“When the order, in original, is before you, to dismiss the petition for non-production of a copy of it is to bring the judicial process into pejoration, and, if a copy were so sacred that the original were no substitute for it some time could have been granted for its production, which was not done. In law, as in life, a short cut may prove wrong cut. I disinter the cassation proceeding and direct it to be disposed of de novo by the High Court. The content of the power, so far as the present situation is concerned, is the same, be it under Section 397 or Section 482 of the Code.”

 

Summary of Question- Sanction for Prosecution under Dowry Prohibition Act

Question-  Whether sanction  for prosecution under section 4 of the Dowry Prohibition Act is required as the Act stands after amendment in 1984. 

Answer- No.

Rationale-

Following observation of the a Division Bench  of the Hon’ble Jharkhand High Court inthe case reported in 2008 (57) BLJR 129

“Section 4 of the Dowry Prohibition Act, 1961, is comprehensive Code covering the field of punishment for the offences under the Act and the procedure has been prescribed therein for launching prosecution. In the Central law, i.e. Dowry Prohibition Act 1961 as it stands today after amendment made in the year 1984 by Acts 63 of 1984, now there is no requirement for obtaining prior sanction of the Government for launching prosecution under Section 4 of the Dowry Prohibition Act, whereas in the State Law as amended by Bihar Act IV of 1976, such requirement of prior sanction of the Government for launching prosecution under Section 4 of the Act is still there. The provision of Section 4 of the Dowry Prohibition Act, 1961 made by the Parliament and Section 4 as amended by Bihar Act IV of 1976 made by the State Legislature are, therefore, clearly in respect of the same matter and they are operating in the same field because for the purpose of launching prosecution under Section 4 of the Dowry prohibition Act, the Central Law does not speak about the requirement of prior sanction, whereas the State Law envisages that prior sanction of the Government is require to be taken before launching prosecution.”

“Now, so far as the decision of the Supreme Court in the case of Rajesh Kumar Kejriwal and Ors. v. State of Bihar and Anr. reported in : (1997)10SCC524  is concerned, in our view, the submission of the learned Counsel for the opposite parties is correct that in the said case this point was not raised before the Supreme Court as to what would be the effect of the proviso to Section 4 of the State Act as amended by Bihar Act IV of 1976 after the enactment of Central Law by way of amended Act 63 of 1984. In this case it was only held after noticing the State amendment made in Section 4 of the Dowry Prohibition Act that requirement of prior sanction for launching prosecution was there. The Central amendment made by the Parliament by Act 63 of 1984 was not placed before the Supreme Court and, therefore, the point as to whether there is a conflict in between the Central law and the State law was neither raised nor decided in the said case.”

 

Summary of Question- Writ of Habeas Corpus and Police Custody.  

Question-  Whether a petition for writ of Habeas Corpus would be maintainable if a person is in Police custody  pursuant to Judicial order.  

Answer- No.

Rationale-

Following observation of a three Judges Bench decision of the Hon’ble supreme Court in a case reported in 2018 (10) SCALE 711:

“The question as to whether a writ of habeas corpus could be maintained in respect of a person who is in police custody pursuant to a remand order passed by the jurisdictional Magistrate in connection with the offence under investigation, this issue has been considered in the case of Saurabh Kumar through his father v. Jailor, Koneila Jail and Anr.  and Manubhai Ratilal Patel v. State of Gujarat and Ors.  It is no more res integra. In the present case, admittedly, when the writ petition for issuance of a writ of habeas corpus was filed by the Respondent on 18th/19th March, 2018 and decided by the High Court on 21st March, 2018 her husband Rizwan Alam Siddique was in police custody pursuant to an order passed by the Magistrate granting his police custody in connection with FIR No. I-31 vide order dated 17th March, 2018 and which police remand was to enure till 23rd March, 2018. Further, without challenging the stated order of the Magistrate, a writ petition was filed limited to the relief of habeas corpus. In that view of the matter, it was not a case of continued illegal detention but the incumbent was in judicial custody by virtue of an order passed by the jurisdictional Magistrate, which was in force, granting police remand during investigation of a criminal case. Resultantly, no writ of habeas corpus could be issued.”

 

Summary of Question- Delay in forwarding copy of FIR to Magistrate.

Question – Whether mere delay in forwarding copy of FIR, under section 157 Cr. P. C,  to Magistrate vitiates the Trial.

Answer-  Not in every case.

Rationale-

In the case r eported in 2018 (11) SCALE 341   , the Hon’ble Supreme Court observed and held :

“The obligation is on the I.O. to communicate the report to the Magistrate. The obligation cast on the I.O. is an obligation of a public duty. But it has been held by this Court that in the event the report is submitted with delay or due to any lapse, the trial shall not be affected. The delay in submitting the report is always taken as a ground to challenge the veracity of the F.I.R and the day and time of the lodging of the F.I.R.”

“This Court in the case of Anjan Dasgupta Vs. State of West Bengal and Ors. (2007) 11 SCC 222 (of which one of us was a member, Hon. Ashok Bhushan, J.) had considered Section 157 CrPC. In the above case also, the FIR was dispatched with delay. Referring to an earlier judgment of this Court, it was held that in every case from the mere delay in sending the FIR to the Magistrate, the Court would not conclude that the FIR has been registered much later in time than shown.”

 

Summary of Question- No  Extension of remand  beyond 60 or 90 days denial of bail.

Question – Whether any  court is empowered to extend the period of remand beyond 60 or 90 days ,as the case may be, even if charge sheet is returned by the magistrate on  some technical ground and whether bail to accused can be denied under section 167 in such a situation.

Answer- No.

Rationale-

1. In the case reported in AIR 2018 SC 4647 , short facts were that the appellants were two accused among 18 other persons. They were arrested and  remanded from time to time.  Complaint filed a petition in the Hon’ble  High Court for fair and impartial investigation.   Following submission of the Public Prosecutor were recorded by the High Court:

"The learned Public Prosecutor for the State, to allay the apprehension of the petitioner, at the outset, has submitted that not only fair investigation shall be conducted by a gazetted police officer, not below the rank of Additional Superintendent of Police but the report of the investigation along with the opinion of the Investigating Officer shall be submitted in the concerned Court within a period of two months from the date of receipt of certified copy of this order by the Investigating Officer "

2.  As per section 167 of cr.p.c, investigation was to be completed by 7.7.2018 because the appellants  were in custody from 8.4.2018. On 05.07.2018, a report under Section 173 of the Code was filed by the police before the of the court of concerned Judicial Magistrate. Since said report was filed by a police officer lower in rank than an ASP and was thus contrary to the order passed by the High Court,  an application was filed by the complainant. The learned Magistrate noting  the contents of the  order of the High court, returned the charge sheet to the police for due compliance. Thus on the expiry of 90th day ( on 07.07.2018 ) no report under Section 173 of the of the Code was on record with the Magistrate.

Immediately after the expiry of 90 days,  the appellants filed an application for bail under  Section 167(2) of the Code. The Judicial Magistrate, rejected the prayer  observing  that  since the charge-sheet filed on 05.07.2018 was not in compliance of the order passed by the High Court, the charge-sheet was returned due to technical fault.

The said rejection was challenged in the High Court which ordered as under :

“No case for grant of bail under Section 167(2) Cr.P.C. is made out, as the time was extended by the High Court in Criminal Miscellaneous (Petition) No.3517 of 2018 and Investigating Officer was afforded two months time to file charge-sheet. It is also important to note that the Investigating Officer had produced the charge-sheet before the concerned Court prior to 90 days but the same was returned in view of the order of the High Court.”

3. The Appellants moved the Hon’ble Supreme Court against the order passed by the High Court.

4. The Supreme Court referred to earlier judgments and observed :

“The questions however arise in the present matter are slightly of different dimension. Here investigation was completed and Challan Under Section 173 was filed on 05.07.2018. However, just two days before that, an order had been passed by the High Court recording submission of the public prosecutor that investigation in the matter would be conducted by a Gazetted Police Officer. The investigation which led to the filing of the report on 05.07.2018, was not in conformity with the statement made before the High Court. It was for this reason that the papers were returned by the Magistrate. All this happened before the expiry of 90th day. Can it be said that the investigation was complete for the purposes of Section 167(2) of the Code so as to deny the benefit to the Accused in terms of said provision. Additionally another issue which arises for consideration is whether the order passed by the High Court could be construed as one under which the period for completing the investigation was extended.”

 “The fact of the matter is that as on completion of 90 days of prescribed period under Section 167 of the Code there were no papers of investigation before the concerned Magistrate. The accused were thus denied of protection established by law. The issue of their custody had to be considered on merits by the concerned Magistrate and they could not be simply remanded to custody dehors such consideration.”

“……….The fact of the matter is that as on completion of 90 days of prescribed period Under Section 167 of the Code there were no papers of investigation before the concerned Magistrate. The Accused were thus denied of protection established by law. The issue of their custody had to be considered on merits by the concerned Magistrate and they could not be simply remanded to custody dehors such consideration. …………….We now turn to the subsidiary issue, namely, whether the High Court could have extended the period. The provisions of the Code do not empower anyone to extend the period within which the investigation must be completed nor does it admit of any such eventuality. There are enactments such as the Terrorist and Disruptive Activities (Prevention) Act, 1985 and Maharashtra Control of Organised Crime Act, 1999 which clearly contemplate extension of period and to that extent those enactments have modified the provisions of the Code including Section 167. In the absence of any such similar provision empowering the Court to extend the period, no Court could either directly or indirectly extend such period……….”

5. However, the Supreme court observed with regard to re-arrest as under:

“We must at this stage note an important feature. In Rakesh Kumar Paul (supra), in his conclusions, Madan B. Lokur, J. observed in para 49 as under:

 

49. The Petitioner is held entitled to the grant of "default bail" on the facts and in the circumstances of this case. The trial Judge should release the Petitioner on "default bail" on such terms and conditions as may be reasonable. However, we make it clear that this does not prohibit or otherwise prevent the arrest or re-arrest of the Petitioner on cogent grounds in respect of the subject charge and upon arrest or re-arrest, the Petitioner is entitled to petition for grant of regular bail which application should be considered on its own merit. We also make it clear that this will not impact on the arrest of the Petitioner in any other case.

In his concurring judgment, Deepak Gupta, J. agreed with conclusions drawn and directions given by Madan B. Lokur, J. in paragraphs 49 to 51 of his judgment. According to the aforesaid conclusions, it would not prohibit or otherwise prevent the arrest or re-arrest of the Accused on cogent grounds in respect of charge in question and upon arrest or re-arrest the Accused would be entitled to petition for grant of regular bail which application would then be considered on its own merit.”

 

Summary of Question- Power of Appellate court to stay conviction.

Question – Whether Appellate Court is empowered under section  389 Cr. P.C to stay conviction also.

Answer- Yes. But in exceptional and  appropriate cases only. 

Rationale-

In a  three Judges Bench decision reported in AIR 2018 SC 4675  , the Apex Court  observed and held :

“Since the decision in Rama Narang, it has been well-settled that the appellate court has the power, in an appropriate case, to stay the conviction under section 389 besides suspending the sentence. The power to stay a conviction is by way of an exception. Before it is exercised, the appellate court must be made aware of the consequence which will ensue if the conviction were not to be stayed…………. In view of the consistent statement of the legal position in Rama Narang and in decisions which followed, there is no merit in the submission that the power conferred on the appellate court under Section 389 does not include the power, in an appropriate case, to stay the conviction. Clearly, the appellate court does possess such a power…………”

 

Summary of Question-  Finality of Award given by Lok Adalat.

Question – Whether Suit or Writ petition against Award given by Lok Adalat would be maintainable.  

Answer- No.

Rationale-

1. The Hon’ble Supreme Court in the case reported in (2005) 6 SCC 478 held –

 “The award of Lok Adalat is final and permanent which is equivalent to a decree executable, and the same is an ending to the litigation among parties.”

2. The Apex Court  also referred to  the decisions of Hon’ble M.P. High Court reported in  AIR 2000 MP 301 and  Hon’ble Andhra Pradesh High Court reported in  2000 (5) ALT 577 as quoted below :

M.P. High Court -

“This provisions* of the Act shall prevail in the matter of filing an appeal and an appeal would not lie under the provisions of Section 96 C.P.C. Lok Adalat is conducted under an independent enactment and once the award is made by Lok Adalat the right of appeal shall be governed by the provisions of the Legal Services Authorities Act when it has been specifically barred under Provisions of Section 21(2), no appeal can be filed against the award under Section 96 C.P.C."

* Section 25 of Legal services Authorities  Act which provides that the provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act.

 "It may incidentally be further seen that even the Code of Civil Procedure does not provide for an appeal under Section 96 against a consent decree. The Code of Civil Procedure also intends that once a consent decree is passed by Civil Court finality is attached to it. Such finality cannot be permitted to be destroyed, particularly under the Legal Services Authorities Act, as it would amount to defeat the very aim and object of the Act with which it has been enacted, hence, we hold that the appeal filed is not maintainable.”

A.P . High Court –

“The award is enforceable as a decree and it is final. In alt fours, the endeavour is only to see that the disputes are narrowed down and make the final settlement so that the parties are not again driven to further litigation or any dispute. Though the award of a Lok Adalat is not a result of a contest on merits just as a regular suit by a Court on a regular trial, however, it is as equal and on par with a decree on compromise and will have the same binding effect and conclusive. Just as the decree passed on compromise it cannot be challenged in a regular appeal, the award of the Lok Adalat being akin to the same, it cannot be challenged by any regular remedies available under law including invoking Article 226 of the Constitution of India challenging the correctness of the award on any ground. Judicial review cannot be invoked in such awards especially on the grounds as raised in this writ petition.”

 

Summary of Question- Plaintiff’s success in suit for specific Performance of contract.

Question – Whether a plaintiff would succeed in suit for specific performance of contract  if he fails to prove that he has been ready and willing to perform his part of contract throughout.

Answer- No.

Rationale-

The Hon’ble Supreme Court in CIVIL APPEAL No(s). 10191 OF 2018 decided on 3.10.18 observed and held as under:

“In order to obtain a decree for specific performance, the Plaintiff has to prove his readiness and willingness to perform his part of the contract and the readiness and willingness has to be shown throughout and has to be established by the Plaintiff. In the case in hand, though the Respondent-Plaintiff has filed the suit for specific performance on 29th April, 2008, the Respondent-Plaintiff has not shown his capacity to pay the balance sale consideration of Rs. 22,00,000 (Rupees Twenty Two Lakhs). In his evidence, the Respondent-Plaintiff has stated that he has borrowed the amount from his friends and kept the money to pay the balance sale consideration. As rightly pointed out by the Trial Court, the Respondent-Plaintiff could not produce any document to show that he had the amount of Rs. 22,00,000 (Rupees Twenty Two Lakhs) with him on the relevant date; nor was he able to name the friends from whom he raised money or was able to raise the money. Furthermore, as rightly pointed out by the Trial Court, the Respondent-Plaintiff could have placed on record his Accounts Book, Pass Book or the Statement of Accounts or any other negotiable instrument to establish that he had the money with him at the relevant point of time to perform his part of the contract. We are, therefore, in agreement with the view taken by the Trial Court that the Respondent-Plaintiff has not been able to prove his readiness and willingness on his part.”

 

Summary of Question- Consideration of public document in quashing.

Question – Whether in a petition for quashing under section 482 cr.p.c , a public document , veracity of which is not disputed, can be considered by High Court.

Answer- Yes.

Rationale-

A three judges bench decision of the Hon’ble Supreme Court in CRIMINAL APPEAL No.254 OF 2015 decided on 3.10.2018 observed and held  that  ordinarily and in the normal course, the High Court when approached for quashing of a criminal proceeding will not appreciate the defence of the accused; neither would it consider the veracity of the document(s) on which the accused relies. However an exception has been carved out by in 2011(15) SCC 207 , 1992 Supp.(1) SC 335 and (2011) 3 SCC 351

to the effect that in an appropriate case where the document relied upon is a public document or where veracity thereof is not disputed by the complainant, the same can be considered.

 

Summary of Question-  Non-framing of charge and section 464 Cr.P.C.

Question – Whether non-framing of charge can be ground for Acquittal if Failure of Justice  has occasioned and prejudice has been caused to the accused due to non-framing of charge. .

Answer- Yes.

Rationale-

1. In CRIMINAL APPEAL NO.1568 OF 2015, decided on  October 31, 2018,  contention of the appellant was  that charge under Section 302 IPC was not framed against him and therefore his conviction  under Section 302 IPC is not maintainable. State placed reliance on  section 464 of the CR.P.C. and  submitted that a conviction would be valid even if there is any omission to frame charge provided it has not occasioned a "failure of justice". State submitted that the appellant was well-aware of the gist of charges under Section 302 IPC against him and in fact the appellant took the  "plea of alibi". It was submitted that even if there was absence of charge, the appellant has not proved "failure of justice"  has occasioned .

2. The Apex Court ,observed and held :

"Section 464 of the Code relates to the effect of omission to frame, or absence of, or error, in charge. Sub-section (1) thereof provides that no finding, sentence or order of a court of competent jurisdiction shall be deemed invalid merely on the ground that no charge was framed or on the ground of any error, omission or irregularity in the charge including any misjoinder of charge, unless, in the   opinion of the court of appeal, confirmation or revision, a failure of justice has in fact been occasioned thereby. "

"The trial court has pointed out that the accused persons were charged under Sections 302, 302/34, 323 and 323/34 IPC to which they pleaded not guilty and opted for trial. The appellant/accused has thus clearly understood that charge has been framed  against him under Section 302 IPC read with Section 34 IPC. If really, the appellant was under the impression that no charge was framed against him under Section 302 read with Section 34 IPC, the appellant would have raised the objection for his committal to the Sessions Court. It is also to be pointed out that the appellant has not raised the objection as to nonframing of charges at the earliest point of time namely the trial court and the first appellate court-High Court "

" All these aspects clearly show that the appellant clearly understood that charge under Section 302 read with Section 34 IPC has been framed against him and throughout he has been defending himself only for the charge under Section 302 IPC. In such facts and circumstances, it cannot be said that the failure of justice has occasioned to him and the absence of a charge under Section 302 read with Section 34 IPC cannot be said to have caused any prejudice to him."

 

Summary of Question-  Non- consideration of defense taken by accused under Section 313 Cr.P.C 

Question – Whether non-consideration of defense taken by accused under section 313 Cr.P.C is just a formality.

Answer- No. Court is duty bound to adequately consider the defense taken by accused under section 313 of the Cr.P.C .

Rationale-


 In  CRIMINAL APPEAL NO.1330 OF 2018,  decided on OCTOBER 31, 2018, the Hon’ble Supreme Court observed :
“Section 313, Cr.P.C. cannot be seen simply as a part of audi alteram partem. It confers a valuable right upon an accused to establish his innocence and can well be considered beyond a statutory right as a constitutional right to a fair trial under Article 21 of the Constitution, even if it is not to be considered as a piece of substantive evidence, not being on oath under Section 313(2), Cr.P.C. The importance of this right has been considered time and again by this court, but it yet remains to be applied in practice as we shall see presently in the discussion to follow. If the accused takes a defence after the prosecution evidence is closed, under Section 313(1)(b) Cr.P.C. the Court is duty bound under Section 313(4) Cr.P.C. to consider the same.
The mere use of the word 'may' cannot be held to confer a discretionary power on the court to consider or not to consider such defence, since it constitutes a valuable right of an accused for access to justice, and the likelihood of the prejudice that may be caused thereby. Whether the defence is acceptable or not and whether it is compatible or incompatible with the evidence available is an entirely different matter. If there has been no consideration at all of the defence taken under Section 313 Cr.P.C., in the given facts of a case, the conviction may well stand vitiated. To our mind, a solemn duty is cast on the court in dispensation of justice to adequately consider the defence of the accused taken under Section 313 Cr.P.C. and to either accept or reject the same for reasons specified in writing.”

 

Summary of Question-  Silence of the accused and section 313 Cr.P.C

Question – Whether adverse inference can be drawn if the accused gives no explanation or remains silent to the question put by court under section 313 Cr.P.C

Answer- Yes.

Rationale-

A three judges Bench decision of the  Hon’ble Supreme Court in CRIMINAL APPEAL NOS. 1794-­1796 OF 2017  decided on  14 Nov. 2018 observed and held:

"No   explanation   is   forthcoming   from   the   statement   of   the accused   under   Section   313   Cr.P.C.   as   to   when   he   parted  the company of the victim. Also, no explanation is there as to what happened after getting the  chocolates for the victim.  The silence on the part of the accused, in such a matter. wherein he is expected to come out with an  explanation, leads to an adverse inference  against the accused."

 

Summary of Question- Lifestyle diseases and Insurance claim.

Question – Whether Insurance claim can be denied just on the ground that  the deceased insured was suffering from Lifestyle diseases like  Diabetes / High Blood pressure. 

Answer- No.

Rationale-

1. The Hon’ble National Commission in REVISION PETITION NO. 4461 OF 2012 in its order dated 8.10.2018 relied on:

(i) the decision of  Hon’ble Delhi High Court made in case of Hari Om Agarwal Vs. Oriental Insurance Co. Ltd. W.P.(C) No.656 of 2007, decided on 17.09.2007, and observed as under :

"From the above, it is clear that the insurance claim cannot be denied on the ground of these life style diseases that are so common. However, it does not give any right to the person insured to suppress information in respect of such diseases. The person insured may suffer consequences in terms of the reduced claims.

(ii) the decision of  Hon’ble Supreme Court decision in the case of Sulbha Prakash Motegaonkar and Ors. Vs. Life Insurance Corporation of India, Civil Appeal No.8245 of 2015, decided on 05.10.2015, and observed as under:

"From the above observations of the Hon'ble Supreme Court, it is clear that suppression of any information relating to pre-existing disease if it has not resulted in death or has no direct relationship to cause of death, would not completely disentitle the claimant for the claim."

2. The Hon'ble National Commission held as under :

"On the basis of the above examination, it can be said that the DLA died on account of “Cardio Respiratory Arrest” which was existing for only five months prior to the date of death. Thus, clearly, this disease was not prevailing when the proposal form was filled. The disease of diabetes, though was existing for some time but was under control at the time of filling up of the proposal form. Moreover, the non-disclosure of information in respect of this life style disease of diabetes, will not totally disentitle the complainant for indemnification of the claim in the light of the judgement of Hon‟ble High Court of Delhi in Hari Om Agarwal Vs. Oriental Insurance Co. Ltd., (supra). Coming to the third disease of LL Hansen, it is seen from the treatment record of PGI Chandigarh that the DLA was admitted on 12.08.2003 and then he was suffering from LL Hansen disease for only 5 weeks, though in the history, it is recorded that he was treated for LL Hansen in the year 2002, however, no clear dates are mentioned. Thus, it seems that the disease was not active at the time of filing of the proposal form. In addition, this disease of LL Hansen has no relationship with the actual cause of death i. e., “Cardio Respiratory Arrest” and in the light of judgement of the Hon'ble Supreme Court in Sulbha Prakash Motegaonkar And Ors. Vs. Life Insurance Corporation of India (supra), its suppression would not lead to total denial of the claim. So, I am of the view that even if any information was suppressed in the proposal form, it cannot be treated as material information. Therefore, the petitioner/ complainant would be entitled to the insurance claim"

 

Summary of Question- Defamatory statement in court’s pleading.

Question – Whether offence of Defamation under section 499 punishable under section 500 IPC can be made out if there is defamatory statement in pleading viz, plaint/ written statement /  petition / reply filed  in court.

Answer- Yes.  

Rationale-

Nagpur bench of the Hon’ble Bombay High Court in CRIMINAL APPLICATION [APL] NO.774 OF 2017, decided on 2.11.2018, observed and held :

"Giving of false evidence is a different and distinct offence from that of the offence of defamation punishable under Section 500 of IPC. The offence of giving of false evidence made punishable under Section 193 of IPC has been defined under Section 191. The definition indicates that any person who is bound by law or oath to state the truth or who is bound by law to make a declaration upon any subject, makes any statement which is false and which he either knows or believes to be false is said to give false evidence. So, it is clear that the offence of false evidence is committed when the person is required to give evidence or make a declaration upon a subject, as mandatorily required under the law. This offence is about making false declaration or statement knowing it to be false at a time when the law or the oath administered to such a person binds him to give a true disclosure of a fact and such a person, inspite of knowing his responsibility under the law, when chooses to speak or declare falsehood, is said to commit offence of giving false evidence. So, the offence is essentially of something which is a matter of evidence or law and not of pleadings. If any defamatory statement is made in pleadings, what would arise would be an offence of defamation punishable under Section 500 read with Section 499 of IPC and not of offence of giving false evidence punishable under Section 193 read with Section 191 of IPC.”

                                                                                                                                       [Emphasis supplied]

Summary of Question- Review petition by 3rd. party. .

Question – Whether a 3rd. party to a judgment can file review petition.

Answer- Yes if  the 3rd. party is aggrieved person.   

Rationale-

In REVIEW PETITION (C)  D. NO. 40966 OF 2013 in CIVIL APPEAL NO.7448 OF 2011 decided on 28th Nov. 2018, the Apex Court observed:

"Reverting to the question of whether Union  of India has locus to file the review petition, we  must immediately advert to Section 114 of  the Code of Civil Procedure  (“CPC”) which, inter   alia,   postulates   that   “any   person  considering himself aggrieved” would have locus to file a review petition. Order XLVII of CPC restates the position that any   person considering himself aggrieved can  file a review petitionBe that as it may, the Supreme Court exercises review  jurisdiction by virtue of Article 137 of the Constitution which predicates that the Supreme Court shall have the power to review any  judgment pronounced or order made by it. Besides, the Supreme Court has framed Rules  to govern  review petitions. Notably, neither Order XLVII  of CPC nor Order XLVII of  the Supreme Court Rules limits the remedy of review only to the parties to the judgment under review.  Therefore, we  have no hesitation in enunciating that even a third party to  the proceedings, if he considers himself an  aggrieved person, may take recourse to the remedy of review petition. The quintessence is that the person should be aggrieved by the  judgment and order passed by this Court in some respect."

                                                                                                                                          [Emphasis Supplied]