1. Shiv Prakash Mishra v. The State of Uttar Pradesh
The Code of Criminal Procedure, 1973 - Section 319 - Power to proceed against other persons appearing to be guilty of offence - The power under Section 319 Cr.P.C. can be exercised by the trial court at any stage during trial to summon any person as an accused to face the trial if it appears from the evidence that such person has committed any offence for which such person could be tried together with the accused.
The Code of Criminal Procedure, 1973 - Section 319 - Power to proceed against other persons appearing to be guilty of offence - The standard of proof employed for summoning a person as an accused person under Section 319 Cr.P.C. is higher than the standard of proof employed for framing a charge against the accused person. The power under Section 319 Cr.P.C. should be exercised sparingly.
Though the name of second respondent was mentioned in the FIR, during investigation, it was thus found that the second respondent was not present in the place of incident and on the basis of the findings of the Investigating Officer, he was not charge sheeted. Be it noted that the appellant-complainant has not filed any protest petition then and there. During investigation, when it was found that the accused was not present at the place of incident, the courts below were right in refusing to summon respondent No.2 as an accused.
Case Number : Crl.A. No. 1105 of 2019 23-07-2019
Petitioner's Advocate : Reetu Sharma
Respondent's Advocate : Ardhendumauli Kumar Prasad
Bench : Hon'ble Mrs. Justice R. Banumathi, Hon'ble Mr. Justice A.S. Bopanna
2. Girish Singh v. State of Uttarakhand
Criminal Appeal - Appeal against Acquittal - Reappraisal of the evidence - A right of appeal is the creature of statue. Unless appellate power is expressly limited by additional conditionalities, the Appellate Court has power or rather is duty bound in the case of an appeal by the accused to reappraise the evidence. Even in an appeal against acquittal, the appellate court has power of reappraisal of evidence though subject to the limitation that interference would be in a case where the Trial Court’s verdict is against the weight of evidence which is the same thing as a perverse verdict.
Criminal Trial - Truth in a criminal trial is discovered by not merely going through the cross-examination of the witnesses. There must be an analysis of the chief examination of the witnesses in conjunction with the cross examination and the re-examination, if any. The effect of what other witnesses have deposed must also enter into consideration of the matter.
Hierarchy of Courts - The Law Giver, has contemplated that the High Court will be the final arbiter of facts and even of law. The jurisdiction of the Apex Court was deliberately limited to the extra ordinary powers it enjoys under Article 136 of the Constitution of India unless it be exercised under other provisions.
The Indian Penal Code, 1860 - Section 304B - The Indian Evidence Act, 1872 - Section 113B - Dowry Death - Presumption as to dowry death - the offence created by Section 304B requires the following elements to be present in order that it may apply:
I. Within 7 years of the marriage, there must happen the death of a woman (the wife).
II. The death must be caused by any burns or bodily injury.
The death must occur otherwise than under normal circumstances.
III. It must be established that soon before her death, she was subjected to cruelty or harassment.
IV. The cruelty or harassment may be by her husband or any relative of her husband.
V. The cruelty or harassment by the husband or relative of the husband must be for, or in connection with, any demand for dowry.
Section 304B treats this as a dowry death. Therefore, in such circumstances, it further provides that husband or relative shall be deemed to have caused her death. Section 113B of The Indian Evidence Act, 1872 provides for presumption as to dowry death. It provides that when the question is whether the dowry death, namely, the death contemplated under Section 304B of the IPC, has been committed by a person, if it is shown that soon before her death, the woman was subjected by such person to cruelty or harassment, for in connection with, any demand for dowry, the Court shall presume that such person had caused the dowry death. It is no doubt a rebuttable presumption and it is open to the husband and his relatives to show the absence of the elements of Section 304B. The foremost aspect to be established by the prosecution is that there was reliable evidence to show that the woman was subjected to cruelty or harassment by her husband or his relatives which must be for or in connection with any demand for dowry, soon before her death. Before the presumption is raised, it must be established that the woman was subjected by such person to cruelty or harassment and it is not any cruelty that becomes the subject matter of the provision but it is the cruelty or harassment for or in connection with, demand for dowry. [Paras 34 and 35]
The Indian Penal Code, 1860 - Sections 306 read with Section 34 and Section 304B read with Section 34 - Dowry Death - The High Court was in clear error in taking into consideration the evidence relating to harassment by the father-in-law on the basis that he, in the state of intoxication, asked the daughter-in-law to sleep with him, and on that basis, she was subjected to mental cruelty. The said evidence is totally irrelevant and foreign to the scope of a trial for the offence under Section 304B of the IPC. It does not relate, at all, to the demand for dowry.
Case Number : Crl.A. No. 1475 of 2009 23-07-2019
Petitioner's Advocate : Sanjay Jain
Respondent's Advocate : Jatinder Kumar Bhatia
Bench : Hon'ble Mr. Justice Sanjay Kishan Kaul, Hon'ble Mr. Justice K.M. Joseph
Judgment By : Hon'ble Mr. Justice K.M. Joseph
Criminal Trial - Truth in a criminal trial is discovered by not merely going through the cross-examination of the witnesses. There must be an analysis of the chief examination of the witnesses in conjunction with the cross examination and the re-examination, if any. The effect of what other witnesses have deposed must also enter into consideration of the matter.
Hierarchy of Courts - The Law Giver, has contemplated that the High Court will be the final arbiter of facts and even of law. The jurisdiction of the Apex Court was deliberately limited to the extra ordinary powers it enjoys under Article 136 of the Constitution of India unless it be exercised under other provisions.
The Indian Penal Code, 1860 - Section 304B - The Indian Evidence Act, 1872 - Section 113B - Dowry Death - Presumption as to dowry death - the offence created by Section 304B requires the following elements to be present in order that it may apply:
I. Within 7 years of the marriage, there must happen the death of a woman (the wife).
II. The death must be caused by any burns or bodily injury.
OR
The death must occur otherwise than under normal circumstances.
III. It must be established that soon before her death, she was subjected to cruelty or harassment.
IV. The cruelty or harassment may be by her husband or any relative of her husband.
V. The cruelty or harassment by the husband or relative of the husband must be for, or in connection with, any demand for dowry.
Section 304B treats this as a dowry death. Therefore, in such circumstances, it further provides that husband or relative shall be deemed to have caused her death. Section 113B of The Indian Evidence Act, 1872 provides for presumption as to dowry death. It provides that when the question is whether the dowry death, namely, the death contemplated under Section 304B of the IPC, has been committed by a person, if it is shown that soon before her death, the woman was subjected by such person to cruelty or harassment, for in connection with, any demand for dowry, the Court shall presume that such person had caused the dowry death. It is no doubt a rebuttable presumption and it is open to the husband and his relatives to show the absence of the elements of Section 304B. The foremost aspect to be established by the prosecution is that there was reliable evidence to show that the woman was subjected to cruelty or harassment by her husband or his relatives which must be for or in connection with any demand for dowry, soon before her death. Before the presumption is raised, it must be established that the woman was subjected by such person to cruelty or harassment and it is not any cruelty that becomes the subject matter of the provision but it is the cruelty or harassment for or in connection with, demand for dowry. [Paras 34 and 35]
The Indian Penal Code, 1860 - Sections 306 read with Section 34 and Section 304B read with Section 34 - Dowry Death - The High Court was in clear error in taking into consideration the evidence relating to harassment by the father-in-law on the basis that he, in the state of intoxication, asked the daughter-in-law to sleep with him, and on that basis, she was subjected to mental cruelty. The said evidence is totally irrelevant and foreign to the scope of a trial for the offence under Section 304B of the IPC. It does not relate, at all, to the demand for dowry.
Case Number : Crl.A. No. 1475 of 2009 23-07-2019
Petitioner's Advocate : Sanjay Jain
Respondent's Advocate : Jatinder Kumar Bhatia
Bench : Hon'ble Mr. Justice Sanjay Kishan Kaul, Hon'ble Mr. Justice K.M. Joseph
Judgment By : Hon'ble Mr. Justice K.M. Joseph
3. Shri A.M.C.S. Swamy ADE / DPE / HYD (Central) v. Mehdi Agah Karbalai
The Electricity Act, 2003 - Sections 135, 151 and 153- The Code of Criminal Procedure, 1973 - Section 193 - Cognizance of offences by Courts of Session - Special Court is empowered to take cognizance without there being an order of committal as contemplated under Section 193 of the Code of Criminal Procedure, 1973 - When there is express provision in the Special Act empowering the Special Court to take cognizance of an offence without the accused being committed, it cannot be said that taking cognizance of offence by Special Court is in violation of Section 193 of the Code of Criminal Procedure, 1973.Section 151 of the Electricity Act, 2003 is altogether a new provision. Section 151 of the Act provides that no court shall take cognizance of an offence punishable under the Act except upon a complaint in writing made by the Appropriate Government or Appropriate Commission or any of their officer authorised by them or a Chief Electrical Inspector or an Electrical Inspector or licensee or the generating company, as the case may be, for this purpose. Second proviso to Section 151 of the Electricity Act, 2003, specially empowers the Special Court constituted under Section 153 of the Electricity Act, 2003, to take cognizance of an offence without the accused being committed. In view of the specific provision under Section 151 of the Electricity Act, 2003, we are of the view that Special Court is empowered to take cognizance without there being an order of committal as contemplated under Section 193 of the Code of Criminal Procedure, 1973. When there is express provision in the Special Act empowering the Special Court to take cognizance of an offence without the accused being committed, it cannot be said that taking cognizance of offence by Special Court is in violation of Section 193 of the Code of Criminal Procedure, 1973. It appears that the High Court has not considered the said proviso to Section 151 and passed the impugned order. As the impugned order is passed only on the said ground, we are of the view that the order impugned is liable to be set aside by this Court.
The Electricity Act, 2003 (Amendment Act 26 of 2007) - The Indian Electricity (Amendment) Act, 2007 - Section 135 (1A) - Complaint was not filed within twenty-four hours of disconnection.
Respondent No.1, has submitted that the complaint was not lodged within twenty-four hours as required under Section 135(1A) of the Electricity Act, 2003, and also submitted that the Court which has taken cognizance is not a Special Court within the meaning of the Electricity Act, 2003. The appellant, has submitted that the date of disconnection as mentioned earlier as 12.11.2009 is not correct and that the power supply was disconnected only on 25.11.2009, as such, complaint was filed within the timeframe. Further, it is submitted by the learned Senior Advocate appearing for the appellant that the Government vide G.O.Ms. No.118, Energy (Power-II) Department, dated 18.10.2003, notified the 1st Additional District Judge’s Court as a Special Court for the purpose of cases arising under the Electricity Act, 2003, as such, the Special Court is having competent jurisdiction. The aforesaid both grounds raised by respondent No.1 cannot be accepted to sustain the impugned order. In view of the submission made by the learned Senior Advocate appearing for the appellant that the disconnection was within the specified time and further the Government has already issued notification notifying the 1st Additional District Judge’s Court as a Special Court, we are not inclined to accept the submission made by the learned Senior counsel appearing for respondent No.1.
Case Number : Crl.A. No. 1102 of 2019 23-07-2019
Petitioner's Advocate : Rakesh K. Sharma
Bench : Hon'ble Mrs. Justice R. Banumathi, Hon'ble Mr. Justice R. Subhash Reddy
Judgment By : Hon'ble Mr. Justice R. Subhash Reddy
4. Bikram Chatterji v. Union of India
Real Estate Regulation and Development Act, 2016 - Section 8(i) The registration of Amrapali Group of Companies under RERA shall stand cancelled;
(ii) The various lease deeds granted in favour of Amrapali Group of Companies by Noida and Greater Noida Authorities for projects in question stand cancelled and rights henceforth, to vest in Court Receiver;
(iii) We hold that Noida and Greater Noida Authorities shall have no right to sell the flats of the home buyers or the land leased out for the realization of their dues. Their dues shall have to be recovered from the sale of other properties which have been attached. The direction holds good for the recovery of the dues of the various Banks also.
(iv) We have appointed the NBCC to complete the various projects and hand over the possession to the buyers. The percentage of commission of NBCC is fixed at 8 percent.
(v) The home buyers are directed to deposit the outstanding amount under the Agreement entered with the promoters within 3 months from today in the Bank account opened in UCO Bank in the Branch of this Court. The amount deposited by them shall be invested in the fixed deposit to be disbursed under the order of this Court on phase-wise completion of the projects/work by the NBCC.
(vi) In view of the finding recorded by the Forensic Auditors and fraud unearthed, indicating prima facie violation of the FEMA and other fraudulent activities, money laundering, we direct Enforcement Directorate and concerned authorities to investigate and fix liability on persons responsible for such violation and submit the progress report in the Court and let the police also submit the report of the investigation made by them so far.
(vii) We direct the Institute of Chartered Accountants of India to initiate the appropriate disciplinary action against Mr. Anil Mittal, CA for his conduct as reflected in various transactions and the findings recorded in the order and his overall conduct as found on Forensic Audit. Let appropriate proceedings are initiated and concluded as early as possible within 6 months and a report of action taken to be submitted to this Court.
(viii) We direct various Companies/ Directors and other incumbents in whose hands money of the home buyers is available as per the report of Forensic Auditors, to deposit the same in the Court within one month from today and to do the needful in the manner as observed. The last opportunity of one month is granted to deposit the amount and to do the needful failing which appropriate action shall be taken against them.
(ix) Concerned Ministry of Central Government, as well as the State Government and the Secretary of Housing and Urban Development, are directed to ensure that appropriate action is taken as against leaseholders concerning such similar projects at Noida and Greater Noida and other places in various States, where projects have not been completed. They are further directed to ensure that projects are completed in a time-bound manner as contemplated in RERA and home buyers are not defrauded.
(x) We appoint Shri R. Venkataramani, learned Senior Advocate, as the Court Receiver. The right of the lessee shall vest in the Court Receiver and he shall execute through authorized person on his behalf, the tripartite agreement and do all other acts as may be necessary and also to ensure that title is passed on to home buyers and possession is handed over to them.
(xi) We also direct Noida and Greater Noida Authorities to execute the tripartite agreement within one month concerning the projects where homebuyers are residing and issue completion certificate notwithstanding that the dues are to be recovered under this order by the sale of the other attached properties. Registered conveyance deed shall also be executed in favour of homebuyers, they are to be placed in the possession and they shall continue to do so in future on completion of projects or in part as the case may be. We direct the Noida and Greater Noida Authorities to take appropriate action to do the needful in the matter. The Water Works Department of the concerned area and the Electricity Supplier are directed to provide the connections for water and electricity to home buyers forthwith.
Case Number : W.P. (C) No. 940 of 2017 23-07-2019
Petitioner's Advocate : Himanshu Shekhar
Respondent's Advocate : Cyril Amarchand Mangaldas AOR
Bench : Hon'ble Mr. Justice Arun Mishra, Hon'ble Mr. Justice Uday Umesh Lalit
Judgment By : Hon'ble Mr. Justice Arun Mishra
5. Surinder Pal Soni v. Sohan Lal (d) Thru Lr.
Practice and Procedure - Revisional Jurisdiction - In a Civil Revision arising out of an execution proceeding, the High Court has modified the decree - Such a course was not open in law.
The High Court acted in excess of its revisional jurisdiction. The High Court impermissibly substituted the decree for specific performance with an order for refund of the sale consideration, beyond the earnest money of Rs. 2,00,000/- to the decree holder. The reasons which weighed with the High Court in doing so as well as its ultimate directions are unsustainable.
In the present case, the facts clearly are to the contrary. The appellant had deposited an amount of Rs. 5,85,000/- The partial decree of the Trial Court in the suit for specific performance was placed in issue before the Appellate Court. After the Appellate Court affirmed the decree on 17 January 2015, the decree of the Trial Court merged with that of the Appellate Court. Barely a month thereafter, on 19 February 2015 the appellant deposited the balance of the sale consideration. The appellant acted bona fide. The equities in a matter arising out of a decree in a suit for specific performance must weigh in his favour. The executing court was justified in rejecting the specious objections of the respondents.
Doctrine of Merger - The doctrine of merger is founded on the rationale that there cannot be more than one operative decree at a given point in time. The doctrine of merger applies irrespective of whether the Appellate Court has affirmed, modified or reversed the decree of the Trial Court.
Learned Counsel appearing on behalf of the respondents submitted that under Order 41 Rule 5 of the CPC, an appeal does not operate as a stay of the proceedings under a decree or order appealed from except so far as the Appellate Court may order, nor shall execution of the decree be stayed only by reason of an appeal having been preferred from the decree. The Appellate Court is however vested with the authority to stay the execution of the decree for sufficient cause. The submission is that since the decree was not stayed pending the disposal of the appeal, there was no impediment in its execution and, upon the failure of the appellant to deposit the balance in the execution proceedings, the decree becomes inexecutable. Learned Counsel submitted that in such a situation, application of the doctrine of merger stands obviated. We are unable to accept the submission. The doctrine of merger operates as a principle upon a judgment being rendered by the Appellate Court. In the present case, once the Appellate Court confirmed the judgment and decree of the Trial Court, there was evidently a merger of the judgment of the Trial Court with the decision of the Appellate Court. Once the Appellate Court renders its judgment, it is the decree of the Appellate Court which becomes executable. Hence, the entitlement of the decree holder to execute the decree of the Appellate Court cannot be defeated.
Case Number : C.A. No. 5360 of 2019 23-07-2019
Petitioner's Advocate : Shree Pal Singh
Bench : Hon'ble Dr. Justice D.Y. Chandrachud, Hon'ble Ms. Justice Indira Banerjee
Judgment By : Hon'ble Dr. Justice D.Y. Chandrachud
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