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

The Karnataka High Court has expressed deep concern and anguish over the increasing cases where insured vehicles are implanted just to get compensation. In many vehicular accidents, the actual vehicle that caused accident lacks insurance policy. Many cases involve ‘hit and run’ accidents. In such cases, the “unscrupulous nexus” stages false scenario in implanting a “proxy” vehicle which is covered by insurance policy. The present case is a classic example of a clear fraud. After 103 days of the accident, brother of the deceased produces his own insured vehicle insinuating its involvement in the accident!

The Court noticed the earlier judgment in Sumangala and others vs Virupakshi and another MFA 30219/2011 decided on 15 June 2011. The fervent plea of the insurance company in the said case, questioning involvement of the insured vehicle as shown in the final report, was brushed aside by observing that ‘if there was any shady material which creates suspicion about the credibility of the final report, the proper course for the insurer should have been to apply to the higher authorities to get the matter investigated or at least should have challenged the final report seeking a writ of mandamus for reinvestigation”. However, the High Court in Mahadev’s case observed as follows; “”

“‘We have, with great respect, perused the entire judgment. From a perusal of the same, we do not find any law laid down in the said judgment of universal application that in all cases where charge sheets were filed, unless Insurance Company challenges the same and obtains writ of mandamus, MACTs are required to act upon the same and proceed to come to a conclusion that the vehicles named as offending vehicles in the charge sheet, without any further proof, are to be taken as the motor vehicles involved in causing the accident, even in cases where evidence produced points to the contrary.

‘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.

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. We are afraid, we would be muddling the field further for the already befuddled members of MACT by accepting the arguments of learned counsel for the appellants on this aspect’.

NOTE: Fraud is a ground to question any administrative orders, quasi-judicial and even judicial verdicts. Lord Denning in one of his most celebrated judgments in Lazarus Estates Ltd v Beasley [1956] 1 Q.B. 702; [1956] 2 W.L.R. 502 held “No court in this land will allow a person to keep an advantage which he has obtained by fraud. No judgment of a court, no order of a Minister, can be allowed to stand if it has been obtained by fraud. Fraud unravels everything. The court is careful not to find fraud unless it is distinctly pleaded and proved; but once it is proved, it vitiates judgments, contracts and all transactions whatsoever…”

The decision of the High Court has armed the Tribunals to independently assess involvement of insured vehicles when fraud is alleged and prima facie shown. The Tribunals are no longer shackled by the chargesheets filed in criminal cases.

A path-breaking judgment in the direction of saving insurance companies from succumbing in the web of conspiracy, deceit and fraud.

Compiled and written by S. Basavaraj, Advocate, Daksha Legal.

Kangana Ranaut vs Municipal Corporation of Greater) Mumbai and others. Writ Petition (ST) 3011/2020 decided on 27 November 2020. Judgment

Relevant Paragraphs: 18.5

Note: Typed extracts will be shared later.

Compiled by S. Basavaraj, Advocate, Bangalore.

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:

• The nature of the alleged offence, the nature of the accusation and the severity of the punishment in the case of a conviction;
• Whether there exists a reasonable apprehension of the accused tampering with the witnesses or being a threat to the complainant or the witnesses;
• The possibility of securing the presence of the accused at the trial or the likelihood of the accused fleeing from justice;
• The antecedents of and circumstances which are peculiar to the accused;

• Whether prima facie the ingredients of the offence are made out, on the basis of the allegations as they stand, in the FIR; and
• The significant interests of the public or the State and other similar considerations.

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.