Priya Mukharjee vs State of Karnataka and others. Criminal Petition 6956/2020 decided on 25 November 2020.
Judgment Link: http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/349929/1/CRLP6956-20-25-11-2020.pdf
Compiled by S. Basavaraj, Advocate, Daksha Legal.
Mahadevi and others vs Shivaputra and another. Miscellaneous First Appeal 201689/2016 (MV) decided on 20 November 2020.
Judgment Link: http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/349819/1/MFA201689-16-20-11-2020.pdf
Relevant paragraphs: 11. …..the vehicle itself was seized on the helpful production of the same by respondent 1, who is none other than the younger brother of deceased on 10.07.2013, a good 103 days after the accident. This also, as rightly observed by the learned Tribunal, probabalises the circumstance that since this was a ‘hit and run’ case, the vehicle of a close relative was involved taking advantage of the fact that it was covered by insurance policy in order to secure compensation for the death of the deceased.
14. Further, we find that in the said judgment, there is no discussion of the relevant provisions of Code of Criminal Procedure or other cognate provisions of law under which the police authorities would investigate and file charge sheets and on the probative value of the charge sheets vis-a-vis the involvement of a motor vehicle in causing the accident before the Tribunals trying the compensation cases. Experience of the recent past shows that instances of fraudulent/collusive involvement of motor vehicles duly covered by insurance policy in accident cases are burgeoning and if the insurance companies are saddled with the burden of challenging the charge sheets filed throughout the country without there being no clear legal mandate to do so, their work would be seriously crippled and they would not be able to do their insurance business without enhancing the premium, thereby further burdening the ever suffering owners of motor vehicles. Even the most liberal reading the provisions of the Motor Vehicles Act, 1988 does not spell out such a requirement.
15. The question is one of fundamental importance – what is the standard of proof applicable in these proceedings? On whom is the initial burden of proving the accident or, as in this case, involvement of the offending motor vehicle cast? Is not still the standard of proof one of “preponderance of probabilities”? Is a mere charge sheet, which in this case is shown to be deficient in truth sufficient to tip the balance only on the premise that insurance company has not dipped deep into its pockets to challenge the charge sheet- what with the toxic nexus between the black sheep among the police, medical professionals and touts of every kind masquerading the field which has become a notorious fact of life.
APPEAL DISMISSED
Compiled by S. Basavaraj, Advocate, Daksha Legal.
Ude Singh and others vs State of Haryana. Criminal Appeal 233/2020 decided on 25 July 2019.
Judgment Link: https://main.sci.gov.in/supremecourt/2008/17549/17549_2008_9_1501_15279_Judgement_25-Jul-2019.pdf
Relevant paragraphs: 15. Thus, “abetment” involves a mental process of instigating a person in doing something. A person abets the doing of a thing when: (i) he instigates any person to do that thing; or (ii) he engages with one or more persons in any conspiracy for the doing of that thing; or (iii) he intentionally aids, by acts or illegal omission, the doing of that thing. These are essential to complete the abetment as a crime. The word “instigate” literally means to provoke, incite, urge on or bring about by persuasion to do anything.
16. In cases of alleged abetment of suicide, there must be a proof of direct or indirect act/s of incitement to the commission of suicide. It could hardly be disputed that the question of cause of a suicide, particularly in the context of an offence of abetment of suicide, remains a vexed one, involving multifaceted and complex attributes of human behaviour and responses/reactions. In the case of accusation for abetment of suicide, the Court would be looking for cogent and convincing proof of the act/s of incitement to the commission of suicide. In the case of suicide, mere allegation of harassment of the deceased by another person would not suffice unless there be such action on the part of the accused which compels the person to commit suicide; and such an offending action ought to be proximate to the time of occurrence. Whether a person has abetted in the commission of suicide by another or not, could only be gathered from the facts and circumstances of each case.
16.1 For the purpose of finding out if a person has abetted commission of suicide by another, the consideration would be if the accused is guilty of the act of instigation of the act of suicide. As explained and reiterated by this Court in the decisions above-referred, instigation means to goad, urge forward, provoke, incite or encourage to do an act. If the persons who committed suicide had been hypersensitive and the action of accused is otherwise not ordinarily expected to induce a similarly circumstanced person to commit suicide, it may not be safe to hold the accused guilty of abetment of suicide. But, on the other hand, if the accused by his acts and by his continuous course of conduct creates a situation which leads the deceased perceiving no other option except to commit suicide, the case may fall within the four-corners of Section 306 IPC. If the accused plays an active role in tarnishing the self-esteem and self-respect of the victim, which eventually draws the victim to commit suicide, the accused may be held guilty of abetment of suicide. The question of mens rea on the part of the accused in such cases would be examined with reference to the actual acts and deeds of the accused and if the acts and deeds are only of such nature where the accused intended nothing more than harassment or snap show of anger, a particular case may fall short of the offence of abetment of suicide. However, if the accused kept on irritating or annoying the deceased by words or deeds until the deceased reacted or was provoked, a particular case may be that of abetment of suicide. Such being the matter of delicate analysis of human behaviour, each case is required to be examined on its own facts, while taking note of all the surrounding factors having bearing on the actions and psyche of the accused and the deceased.
Compiled by S. Basavaraj, Advocate, Daksha Legal.
Arnab Manoranjan Goswami vs The State of Maharashtra & Ors. Criminal Appeal 742/2020 decided on 27 November 2020.
Judgment Link: https://main.sci.gov.in/supremecourt/2020/24646/24646_2020_33_1501_24858_Judgement_27-Nov-2020.pdf
Relevant paragraphs: JHuman liberty and the role of Courts. Para 60. Human liberty is a precious constitutional value, which is undoubtedly subject to regulation by validly enacted legislation. As such, the citizen is subject to the edicts of criminal law and procedure. Section 482 recognizes the inherent power of the High Court to make such orders as are necessary to give effect to the provisions of the CrPC ―or prevent abuse of the process of any Court or otherwise to secure the ends of justice. Decisions of this court require the High Courts, in exercising the jurisdiction entrusted to them under Section 482, to act with circumspection. In emphasising that the High Court must exercise this power with a sense of restraint, the decisions of this Court are founded on the basic principle that the due enforcement of criminal law should not be obstructed by the accused taking recourse to artifices and strategies. The public interest in ensuring the due investigation of crime is protected by ensuring that the inherent power of the High Court is exercised with caution. That indeed is one – and a significant – end of the spectrum.
The other end of the spectrum is equally important: the recognition by Section 482 of the power inhering in the High Court to prevent the abuse of process or to secure the ends of justice is a valuable safeguard for protecting liberty. The Code of Criminal Procedure of 1898 was enacted by a legislature which was not subject to constitutional rights and limitations; yet it recognized the inherent power in Section 561A. Post- Independence, the recognition by Parliament of the inherent power of the High Court must be construed as an aid to preserve the constitutional value of liberty. The writ of liberty runs through the fabric of the Constitution. The need to ensure the fair investigation of crime is undoubtedly important in itself, because it protects at one level the rights of the victim and, at a more fundamental level, the societal interest in ensuring that crime is investigated and dealt with in accordance with law. On the other hand, the misuse of the criminal law is a matter of which the High Court and the lower Courts in this country must be alive. … Courts should be alive to both ends of the spectrum – the need to ensure the proper enforcement of criminal law on the one hand and the need, on the other, of ensuring that the law does not become a ruse for targeted harassment. Liberty across human eras is as tenuous as tenuous can be. Liberty survives by the vigilance of her citizens, on the cacophony of the media and in the dusty corridors of courts alive to the rule of (and not by) law. Yet, much too often, liberty is a casualty when one of these components is found wanting.
63. More than four decades ago, in a celebrated judgment in State of Rajasthan, Jaipur vs Balchand (1977) 4 SCC 308 , Justice Krishna Iyer pithily reminded us that the basic rule of our criminal justice system is bail, not jail. The High Courts and Courts in the district judiciary of India must enforce this principle in practice, and not forego that duty, leaving this Court to intervene at all times. We must in particular also emphasise the role of the district judiciary, which provides the first point of interface to the citizen. Our district judiciary is wrongly referred to as the subordinate judiciary‘. It may be subordinate in hierarchy but it is not subordinate in terms of its importance in the lives of citizens or in terms of the duty to render justice to them. High Courts get burdened when courts of first instance decline to grant anticipatory bail or bail in deserving cases. This continues in the Supreme Court as well, when High Courts do not grant bail or anticipatory bail in cases falling within the parameters of the law. The consequence for those who suffer incarceration are serious. Common citizens without the means or resources to move the High Courts or this Court languish as undertrials. Courts must be alive to the situation as it prevails on the ground – in the jails and police stations where human dignity has no protector. As judges, we would do well to remind ourselves that it is through the instrumentality of bail that our criminal justice system‘s primordial interest in preserving the presumption of innocence finds its most eloquent expression. The remedy of bail is the ―solemn expression of the humaneness of the justice system. Tasked as we are with the primary responsibility of preserving the liberty of all citizens, we cannot countenance an approach that has the consequence of applying this basic rule in an inverted form. We have given expression to our anguish in a case where a citizen has approached this court. We have done so in order to reiterate principles which must govern countless other faces whose voices should not go unheard.
65. The data on the National Judicial Data Grid (NJDG) is available in the public realm. The NJDG is a valuable resource for all High Courts to monitor the pendency and disposal of cases, including criminal cases. For Chief Justices of the High Courts, the information which is available is capable of being utilized as a valuable instrument to promote access to justice, particularly in matters concerning liberty. The Chief Justices of every High Court should in their administrative capacities utilize the ICT tools which are placed at their disposal in ensuring that access to justice is democratized and equitably allocated. Liberty is not a gift for the few. Administrative judges in charge of districts must also use the facility to engage with the District judiciary and monitor pendency. As the data on the NJDG makes clear, there is a pressing need for courts across the judicial hierarchy in India to remedy the institutional problem of bail applications not being heard and disposed of with expedition.
Compiled by S. Basavaraj, Advocate, Daksha Legal.
Arnab Manoranjan Goswami vs The State of Maharashtra & Ors. Criminal Appeal 742/2020 decided on 27 November 2020.
Judgment Link: https://main.sci.gov.in/supremecourt/2020/24646/24646_2020_33_1501_24858_Judgement_27-Nov-2020.pdf
Relevant paragraphs: 57 While considering an application for the grant of bail under Article 226 in a suitable case, the High Court must consider the settled factors which emerge from the precedents of this Court. These factors can be summarized as follows:
58. These principles have evolved over a period of time and emanate from the following (among other) decisions: Prahlad Singh Bhati vs NCT, Delhi (2001) 4 SCC 280, Ram Govind Upadhyay vs Sudarshan Singh (2002) 3 SCC 598, State of UP vs Amarmani Tripathi (2005) 8 SCC 21, Prasanta Kumar Sarkar vs Ashis Chatterjee (2010) 14 SCC 496, Sanjay Chandra vs CBI 2012) 1 SCC 40, and P. Chidambaram vs Central Bureau of Investigation Criminal Appeal No. 1605 of 2019 decided on 22 October 2019
59. These principles are equally applicable to the exercise of jurisdiction under Article 226 of the Constitution when the court is called upon to secure the liberty of the accused. The High Court must exercise its power with caution and circumspection, cognizant of the fact that this jurisdiction is not a ready substitute for recourse to the remedy of bail under Section 439 of the CrPC.
Compiled by S. Basavaraj, Advocate, Daksha Legal.
Arnab Manoranjan Goswami vs The State of Maharashtra & Ors. Criminal Appeal 742/2020 decided on 27 November 2020.
Judgment Link: https://main.sci.gov.in/supremecourt/2020/24646/24646_2020_33_1501_24858_Judgement_27-Nov-2020.pdf
Relevant paragraphs: 47 .The first segment of Section 107 defines abetment as the instigation of a person to do a particular thing. The second segment defines it with reference to engaging in a conspiracy with one or more other persons for the doing of a thing, and an act or illegal omission in pursuance of the conspiracy. Under the third segment, abetment is founded on intentionally aiding the doing of a thing either by an act or omission. These provisions have been construed specifically in the context of Section 306.
These provisions have been construed in the earlier judgements of this Court in State of West Bengal vs Orilal Jaiswal (1994) 1 SCC 73, Randhir Singh vs State of Punjab (2004) 13 SCC 129, Kishori Lal vs State of MP(2007) 10 SCC 797, Kishangiri Mangalgiri Goswami vs State of Gujarat (2009) 4 SCC 52 and Amalendu Pal vs State of West Bengal (2010) 1 SCC 707. The Court noted that before a person may be said to have abetted the commission of suicide, they ―must have played an active role by an act of instigation or by doing certain act to facilitate the commission of suicide. Instigation, as this Court held in Kishori Lal (supra), ―literally means to provoke, incite, urge on or bring about by persuasion to do anything.
In S S Chheena vs Vijay Kumar Mahajan23 two judge bench of this court observed. – ―“25. Abetment involves a mental process of instigating a person or intentionally aiding a person in doing of a thing. Without a positive act on the part of the accused to instigate
or aid in committing suicide, conviction cannot be sustained.
The intention of the legislature and the ratio of the cases
decided by this Court is clear that in order to convict a person
under Section 306 IPC there has to be a clear mens rea to
commit the offence. It also requires an active act or direct act
which led the deceased to commit suicide seeing no option
and that act must have been intended to push the deceased
into such a position that he committed suicide.“
Note: Please read paragraphs 47 to 54 of this judgment on this point .
Compiled by S. Basavaraj, Advocate, Daksha Legal.
The Appointing Authority and another vs Bheemappa and another Writ Appeal 100110/2020 decided on 10 November 2020.
Judgment Link: http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/349067/1/WA100110-20-10-11-2020.pdf
Relevant paragraphs: 3…. Admittedly, the appellant-Bank has not sought for verification of the caste certificate furnished to the employer in the year 1985. That being the admitted facts, the moot question is whether the Caste Verification Committee could have suo motu initiated proceedings to cancel the caste certificate of respondent no.1 or to opine that respondent no.1 has furnished a false certificate.
4. On perusal of the *Karnataka Scheduled Castes, Scheduled Tribes and other Backward Classes (Reservation of Appointments, etc.) Act, 1990 (hereinafter referred to as ‘the Act’ for short) and the *Karnataka Scheduled Castes, Scheduled Tribes and other Backward Classes (Reservation of Appointments, etc.) Rules, 1992, we find that no such powers of suo motu revision are vested in the Caste Verification Committee and sub-section (2) of Section 4-C of the Act stipulates the persons or entity who may seek for verification of the Caste certificate.
Compiled by S. Basavaraj & Sumana Chamarty, Daksha Legal.
M/s. Bethal Products (India) vs Jayakumar and another. Criminal Appeal 1060/2010 decided on 19 November 2020.
Judgment Link: http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/349771/1/CRLA1060-10-19-11-2020.pdf
Relevant paragraphs: 18. (Facts) The other contention of the accused is that the subject matter of the said cheque is not issued for legally recoverable debt. reason that they have not disputed the issuance of cheque and also no dispute with regard to the fact that there was no transaction between the complainant and the accused Company. However, it is the specific case of the complainant that in order to discharge the liability of M/s.IGSL in which accused Nos.1 and 2 are the Directors, have issued the cheque.
21 Decision of the Madras High Court in Madras High Court in the case of P.R.Shankar Rao vs. Joseph and Joseph Regis Kalingarayar, reported in 2001 Crl.L.J.2392 perused….”the debt or other liability includes the due from any other person. It is not necessary that the debt or liability should be due from the drawer himself. It can be issued for the discharge of any other man’s debt or liability. Legally enforceable debt or liability would have a reference to the nature of the debt or liability and not the person against whom the debt or liability can be enforced.”
23 & 24. The judgment in ICDS Ltd. vs. Beena Shabeer and another reported in (2002)6 SCC 426 perused. ….The language of the statute depicts the intent of the law- makers to the effect that wherever there is a default on the part of one in favour of another and in the event a cheque is issued in discharge of any debt or other liability, there cannot be any restriction or embargo in the matter of application of the provisions of Section 138 of the Act. It is further observed that “any cheque” and “other liability” are the two key expressions which stand as clarifying the legislative intent so as to bring factual context within the ambit of the provisions of the statute.
25. Having considered the principles laid down in the judgment, the factual aspects of the case and legal effect, it is clear that the Court has to see the wisdom of the legislature in bringing the enactment and while interpreting the law, the Court has to take note of the object and statement in bringing the enactment and the courts are meant to interpret the law with the object of special enactment. APPEAL ALLOWED.
Compiled by S. Basavaraj, Advocate, Daksha Legal.
Suresh Kumar Wadhwa v. State of M.P., (2017) 16 SCC 757 . Civil Appeal 7665/2009 decided on 25 October 2017.
Judgment Link: https://main.sci.gov.in/supremecourt/2007/5473/5473_2007_Judgement_25-Oct-2017.pdf
Relevant paragraphs: 20 &21. Three questions, basically, arise in this appeal. (1) Whether the appellant-plaintiff committed any breach of the terms and conditions of the public auction. (2) Whether the State was justified in forfeiting the security money deposited by the appellant for the alleged breach said to have been committed by the appellant. (3) Whether the State had power to forfeit the security money in the facts of this case?. These questions need to be answered keeping in view the provisions of Section 74 of the Contract Act, 1872 and some settled legal principles relating to law of contract.
23. Reading of Section 74 would go to show that in order to forfeit the sum deposited by the contracting party as “earnest money” or “security” for the due performance of the contract, it is necessary that the contract must contain a stipulation of forfeiture. In other words, a right to forfeit being a contractual right and penal in nature, the parties to a contract must agree to stipulate a term in the contract in that behalf. A fortiori, if there is no stipulation in the contract of forfeiture, there is no such right available to the party to forfeit the sum.
24. The learned author Sir Kim Lewison in his book The Interpretation of Contracts (6th Edn.) while dealing with subject “Penalties, Termination and Forfeiture Clauses in the Contract” explained the meaning of the expression “forfeiture” in these words: “A forfeiture clause is a clause which brings an interest to a premature end by reason of a breach of covenant or condition, and the court will penetrate the disguise of a forfeiture clause dressed up to look like something else. A forfeiture clause is not to be construed strictly, but is to receive a fair construction.”
25. The author then quoted the apt observations of Lord Tenterden from an old case reported in Doe d Davis v. Elsam wherein the learned Lord while dealing with the case of forfeiture held as under: (ER p. 1127) “… I do not think provisos of this sort are to be construed with the strictness of conditions at common law. These are matters of contract between the parties, and should, in my opinion, be construed as other contracts.”
26. Equally well-settled principle of law relating to contract is that a party to the contract can insist for performance of only those terms/conditions, which are part of the contract. Likewise, a party to the contract has no right to unilaterally “alter” the terms and conditions of the contract and nor they have a right to “add” any additional terms/conditions in the contract unless both the parties agree to add/alter any such terms/conditions in the contract.
27. Similarly, it is also a settled law that if any party adds any additional terms/conditions in the contract without the consent of the other contracting party then such addition is not binding on the other party. Similarly, a party, which adds any such term/condition, has no right to insist on the other party to comply with such additional terms/conditions and nor such party has a right to cancel the contract on the ground that the other party has failed to comply with such additional terms/conditions.
(On facts) 29. In our opinion, a stipulation for deposit of security amount ought to have been qualified by a specific stipulation providing therein a right of forfeiture to the State. Similarly, it should have also provided the contingencies in which such right of forfeiture could be exercised by the State against the bidder. It is only then the State would have got a right to forfeit. It was, however, not so in this case.
Compiled by S.Basavaraj, Advocate, Daksha Legal
Gayatri vs The Police Commissioner and others. Writ Petition Habeus Corpus 53/2020 decided on 18 November 2020.
Judgment Link: http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/349000/1/WPHC53-20-18-11-2020.pdf
Relevant paragraphs: 2. Learned counsel for the petitioner submitted that grounds referred to in the order of detention are factually incorrect and the order of detention was passed when the detenue was already in judicial custody. Since the detenue was in judicial custody, therefore, the order of detention could not have been passed.
5. The Act* was enacted with an object to ensure that the maintenance of public order in the State is not adversely affected by the activities of known anti-social elements. The legislature also took note of the fact while enacting the Act that the activities of antisocial elements like bootleggers, drug offenders, gamblers, immoral traffic offenders and slum grabbers and also video and audio pirates, have caused a feeling of insecurity among the public and even tempo of life especially in urban areas has frequently been disrupted because of such persons.
6. It is well settled in law that preventive detention is not punitive but is a precautionary measure and its object is not to punish a person but to prevent him from doing any illegal activity which may be prejudicial to maintenance of public order. The power of preventive detention is invoked as an anticipatory measure and the same does not relate to an offence in respect of which criminal proceeding is pending to punish a person.
7. The Supreme Court in Union of India & another vs Dimple Happy Dhakad 2019 SCC Online 875 has held that even if a detenue is in custody, an order of detention can be passed provided the detaining authority is satisfied that if the detenue is released from the custody, he is likely to indulge in activities which are prejudicial to maintenance of public order….Therefore, the contention of the detenue that since he is in custody therefore, order of detention could not have been passed, does not deserve acceptance. PETITION DISMISSED.
Compiled by S. Basavaraj, Advocate, Daksha Legal.
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