Rajendra S/O Ramdas Kolhe v. State of Maharashtra

Date of Judgement/Order – 15.05.2024

Bench Strength – 2 Judges

Composition of Bench – Justice Ujjal Bhuyan and Justice Abhay S. Oka

Case In Brief:

• Rekha (victim) was a police constable living in Ambajogai. Her husband, Rajendra (Appellant) was in the army and was visiting home.
• The prosecution's case is that the victim was subjected to cruelty by the Appellant and his brother and at the hands of her other in-laws.
• On the fateful day the victim was beaten by her husband Rajendra and brother-in-law Suresh. They tied her hands with a gamcha and her feet by a towel. Then the husband gagged her face. The husband poured the kerosene on her person and lit the matchstick. In the process, she got completely burnt.
• The neighbors took her to the hospital where her dying declaration was recorded on the basis of which Ambajogai police station filed a first information report (FIR) under Sections 307, 498A, 342, 323 and 504 read with Section 34 of Indian Penal Code, 1860 (IPC).
• Later, another victim’s declaration was recorded by the Special Executive Magistrate. After her death Section 302 was also added in the FIR.
• The appellant along with the father-in-law, mother-in-law and sister-in-law of the deceased were arrayed as accused. The brother- in – law Suresh, being juvenile, was sent to the Juvenile Justice Board.
• The Trial Court held Appellant (husband) guilty of offence under Section 302 of IPC.
• An appeal made to the High Court was dismissed by the High Court.
• An appeal was consequently made to the Supreme Court.

Verdict:

• The Supreme Court reiterated the law on the evidentiary value of dying declaration.
• The Court reiterated the principles related to dying declaration laid down in Khushal Rao v. State of Bombay (1958).
• It was observed by the Court that the Court has to scrutinize the dying declaration carefully and must ensure that the declaration is not the result of tutoring, prompting or imagination and that the deceased was in a fit and proper state to make the declaration.
• But once the court is satisfied that the dying declaration is true and voluntary, it can base conviction on it without corroboration.
• The Court also reiterated the law on multiple dying declarations as was laid down in several cases earlier :
  • In Amol Singh v. State of Madhya Pradesh (2008) it was held that when there are inconsistencies between one dying declaration and other it must seen if the inconsistencies are material or not.
  • In the case of Lakhan v. State of Madhya Pradesh (2010) the Supreme Court held that where there are multiple dying declarations with inconsistencies between them, the court would have to scrutinize the facts very carefully and, thereafter, take a decision as to which of the declarations is worth reliance.
  • In the case of Ashabai v. State of Maharashtra (2013) the Supreme Court held that when there are multiple dying declarations, each dying declaration has to be separately assessed and evaluated independently on their own merit as to the evidentiary value of each. One cannot be rejected merely because of certain variations in the other.
• The Supreme Court held that though there are inconsistencies and improvements in the version of the prosecution witnesses, there is however convergence with the core of the narration of the deceased made in the dying declaration and the medical history recorded by the doctor. Also, the attending doctor has certified that she was fit to make dying declaration.
• Consequently, the Supreme Court convicted the accused under Section 302 of IPC.

Relevant Provision:

• Section 32(1) of Indian Evidence Act, 1872 (IEA) - Dying declaration –
  • Cases in which statement of relevant fact by person who is dead or cannot be found, etc., is relevant. – Statements, written or verbal, of relevant facts made by a person who is dead, or who cannot be found, or who has become incapable of giving evidence, or whose attendance cannot be procured without an amount of delay or expense which, under the circumstances of the case, appears to the Court unreasonable, are themselves relevant facts in the following cases

(1) When it relates to cause of death. – When the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person’s death comes into question. Such statements are relevant whether the person who made them was or was not, at the time when they were made, under expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question.

• Section 26(a) of Bhartiya Sakshya Adhniyam, 2023 (BSA) covers this provision.

[Original Judgment]

Pukhraj v. State of Rajasthan

Date of Judgement/Order – 14.05.2024

Bench Strength – 2 Judges

Composition of Bench – Justice Manoj Misra and Justice J. B. Pardiwala

Case In Brief:

• A FIR came to be registered at the Shambhugarh Police Station against the appellant herein and two other co-accused by name Pukhraj and Ram Bishnoi for the offence punishable under Sections 8, 15, 25 and 29 respectively of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS).
• The two co accused were arrested while the appellant remained absconding.
  • The appellant is the registered owner of the dumper from which contraband was seized resulting in FIR.
  • Along with the contraband the dumper was also seized.
• The trial resulted in acquittal of co accused.
• The Trial Court, while acquitting the co-accused, ordered confiscation of the dumper and auctioned it.
• The case of the appellant is that the trial court could not have ordered confiscation of the dumper without giving an opportunity of hearing to him, being the registered owner and without following the provisions of Section 63 of the NDPS Act

Verdict:

• The Supreme Court held that the plain reading of Section 63 of NDPS Act indicates that the court cannot order confiscation of an article until the expiry of one month from the date of seizure or without hearing any person who may claim any right thereto.
• Taking into consideration Section 63 of NDPS Act the Court set aside the order passed by the lower Court.

Relevant Provision:

• Section 63 of NDPS – Procedure in making confiscations-

(1) In the trial of offences under this Act, whether the accused is convicted or acquitted or discharged, the court shall decide whether any article or thing seized under this Act is liable to confiscation under section 60 or section 61 or section 62 and, if it decides that the article is so liable, it may order confiscation accordingly.

(2) Where any article or thing seized under this Act appears to be liable to confiscation under section 60 or section 61 or section 62, but the person who committed the offence in connection therewith is not known or cannot be found, the court may inquire into and decide such liability, and may order confiscation accordingly:

Provided that no order of confiscation of an article or thing shall be made until the expiry of one month from the date of seizure, or without hearing any person who may claim any right thereto and the evidence, if any, which he produces in respect of his claim:
Provided further that if any such article or thing, other than a narcotic drug, psychotropic substance [controlled substance], the opium poppy, coca plant or cannabis plant is liable to speedy and natural decay, or if the court is of opinion that its sale would be for the benefit of its owner, it may at any time direct it to be sold; and the provisions of this sub-section shall, as nearly as may be practicable, apply to the net proceeds of the sale.

[Original Judgement]

Shento Varghese v. Julfikar Husen & Ors.

Date of Judgement/Order – 13.05.2024

Bench Strength – 2 Judges

Composition of Bench – Justice Aravind Kumar and Justice Pamidighantam Sri Narasimha

Case In Brief:

• The Respondents-accused is said to have placed an order for purchase of forty-seven Kerala Model Gold Chains from the Appellant-first informant, who worked as a deliveryman in a company called ‘PR Gold.
• In consideration for the supply of gold chains, the Respondents had agreed to provide gold bars of equivalent value.
• The allegations in the complaint suggest that the exchange took place on 20.12.2022. Shortly thereafter, the Appellant learns that gold bars handed over to him were fake.
• Thereafter first information report was registered and the investigation was done by the police.
• It was noticed that certain monies to the tune of Rs.19,83,036/- were deposited in the bank accounts of Accused 1 and 3. On 09th January 2023, the investigating officer wrote to the bank and ordered for freezing of their bank accounts.
• The Respondents then approached the High Court by filing an original petition under Section 482 CrPC. and sought for de-freezing of the bank accounts.
• The High Court allowed the application of the Respondents-accused for de-freezing of the bank accounts, and therefore set at naught the seizure order on the sole ground that the order of seizure was not forthwith reported to the Magistrate.

Verdict:

• The Supreme Court in this case considered the following issue on which there has been no authoritative judgment by the Supreme Court:
• “Does delayed reporting of the seizure to the Magistrate vitiate the seizure order altogether?”
• It was noted by the court that Section 102(3) of Criminal Procedure Code (Cr.P.C) which provides for informing the Magistrate forthwith regarding the seizure has been added by way of amendment in the year 1978.
• The Court observed that the validity of the power under Section 102 (1) is not dependent on the compliance with the duty prescribed under Section 102(3). Thus, the obligation to inform the Magistrate is neither a jurisdictional pre requisite to exercise the power under Section 102(1) nor is the power under Section 102(1) made subject to the compliance.
• The Court here drew similarities between Section 157 of Cr.P.C and the provision at hand owing to the fact that none of these provisions provide for a consequence in case the obligation is not complied with.
• Drawing from the analogy with respect to Section 157 of Cr.P.C the Court held that delay in reporting the seizure to the Magistrate may at best dent the veracity of the prosecution case vis-a- via the time, date and occasion of seizure of property.
• It has been consistently held that even illegalities in investigation (including illegalities in seizure and search) is no ground for setting aside the investigation in toto.
• Thus, finally the Court held that if the delay is properly explained the Court will leave the matter at that.
  • However, if it is not properly explained then Court may direct appropriate departmental action against the erring official.
• Finally, the Court answered the question in the present facts i.e. whether the Court should direct freezing of bank accounts afresh.
• The Court held that the answer has to be in the negative, since undisputedly by virtue of the impugned order, the bank accounts of the respondents has been defreezed and resultantly, the Respondents would have operated the accounts and amount of Rs.19,83,036/- which had been frozen would have been withdrawn.
• Thus, the ends of justice would be met and the interest of prosecution would be served if the Respondents are called upon, forthwith, to execute a bond undertaking to deposit the amount (which has been thus far withdrawn from the seized bank accounts) before the jurisdictional Court in the event the Court were to return a finding of guilt against the accused persons.

Relevant Provision:

• Section 102 (3) of CrPC - Power of Police Officer to seize certain property –
  • Every police officer acting under Sub-Section (1) shall forthwith report the seizure to the Magistrate having jurisdiction and where the property seized is such that it cannot be, conveniently transported to the Court or where there is difficulty in securing proper accommodation for the custody of such property, or where the continued retention of the property in police custody may not be considered necessary for the purpose of investigation, he may give custody thereof to any person on his executing a bond undertaking to produce the property before the Court as and when required and to give effect to the further orders of the Court as to the disposal of the same.
  • The above provision is provided under Section 106 (3) of Bhartiya Nagrik Suraksha Sanhita, 2023 (BNSS).

[Original Judgement]

Bhikchand S/O Dhondiram Mutha (Deceased) Through Lrs. v. Shamabai Dhanraj Gugale (Deceased) Through Lrs.

Date of Judgement/Order – 14.05.2024

Bench Strength – 2 Judges

Composition of Bench – Justice Hrishikesh Roy and Justice Prashant Kumar Mishra

Case In Brief:

• Dhanraj, the husband of the original plaintiff - Shamabai Dhanraj Gugale advanced loan of Rs. 8,000/- to the original defendant – appellant/judgment debtor in the year 1969.
• Upon his failure to repay the debt, the original plaintiff instituted a civil suit for recovery of Rs. 10,880/- (Rs.8,000/- as principal amount + Rs. 2880/- as accrued interest) along with interest @ 12% per annum pendente lite and post decree and for other ancillary reliefs and costs.
• On 15.02.1982, the 4th Joint Civil Judge, Senior Division, Pune partly decreed the suit by awarding the principal amount; pre-suit accrued interest; pendente lite and further interest at the rate of 12% per annum till realization of the principal amount and costs.
• The original plaintiff-decree holder preferred appeal against rejection of part of the claim where cross objections were preferred by the judgment debtor.
• During the pendency of the above appeal, the plaintiff-decree holder also preferred execution application which came to be transferred to the court of Civil Judge, Senior Division, Ahmednagar because the property belonging to the judgment debtor against which the decretal amount was to be recovered fell within the jurisdiction of Ahmednagar court.
• The appeal referred to above was dismissed and the defendant’s cross objections were allowed to the extent of interest and costs.
• As a result of appeal the total decreetal amount was reduced from Rs.27694/- to Rs. 17120/-.
• The decree holder executed the decree and the properties of the defendant/judgment debtor as mentioned (supra) were put to auction and were purchased by the original plaintiffs/decree holders themselves for a sum of Rs. 34000/- in the auction dated 09.08.1985 which was confirmed by the Executing Court.
• On 29.01.1990, the present appellant/judgment debtor moved an application for restitution under Section 144 Civil Procedure Code, 1808 (CPC) on the ground that the original decree having been varied, substantially, the execution sale deserves to be set aside and reversed by way of restitution.
• The judgment debtor has finally deposited the entire amount in the Court as decreed by the Appeal Court.
• The courts below have concurrently rejected the appellant/judgment debtor’s application for restitution basing the reasoning that he had not deposited any amount in court, when the suit was originally decreed and the decree was put in execution, and not even a part of the amount which was finally decreed by the appeal court was deposited, hence, the principle of restitution is not invokable.

Verdict:

• The Supreme Court held that when the decree holder is himself the auction purchaser the sale cannot stand, if the decree is subsequently set aside.
• The Supreme Court further observed that a third party who purchases the property in court auction with the knowledge of the pending appeal against the decree cannot resist restitution.
• Further, it was held by the Court that the Executing Court did not discharge it’s duty of ascertaining as to what part of the property is sufficient to be attached for the purpose of execution.
• The Court held that by attaching all the properties a grave injustice is done to the judgment debtor. A decree for realisation of a sum in favour of the plaintiff should not amount to exploitation of the judgment debtor by selling his entire property.
• The Supreme Court finally set aside the order of High Court dated 05.06.2017 and the appellant’s application under Section 144 of CPC.

Relevant Provision:

• Section 144 of CPC - Application for Restitution –
  • Where and in so far as a decree [or an order] is [varied or reversed in any appeal, revision or other proceeding or is set aside or modified in any suit instituted for the purpose, the Court which passed the decree or order] shall, on the application of any party entitled to any benefit by way of restitution or otherwise, cause such restitution to be made as will, so far as may be, place the parties in the position which they would have occupied but for such decree [or order] or [such part thereof as has been varied, reversed, set aside or modified]; and for this purpose, the Court may make any orders, including orders for the refund of costs and for the payment of interest, damages, compensation and mesne profits, which are properly [consequential on such variation, reversal, setting aside or modification of the decree or order].
    
    [Explanation.--For the purposes of sub-section (1), the expression "Court which passed the decree or order" shall be deemed to include
    (a) where the decree or order has been varied or reversed in exercise of appellate or revision jurisdiction, the Court of first instance;

[Original Judgement]

M.C. Mehta v. Union Of India And Ors.

Date of Judgement/Order – 13.05.2024

Bench Strength – 2 Judges

Composition of Bench – Justice Ujjal Bhuyan and Justice Abhay S Oka

Case In Brief:

• It is an admitted position that within the limits of Municipal Corporation of Delhi (MCD) every day there is a generation of 3800 tonnes of solid waste which cannot be treated in the sense that the existing plants do not have the capacity to treat the same.
• It was observed that with the facilities available by June 2027 for a period of more than 3 years from now, Delhi will have minimum 3800 tonnes of untreated solid waste accumulating in some place every day.
• Considering the development taking place in and around Delhi the waste is l;ikely to increase every day.

Verdict:

• The Supreme Court observed that generation of waste in such large quantity destroys the environment and directly affects fundamental rights of citizens under Article 21 of the Constitution of India.
• Immediate measures need to be undertaken to ensure that the generation of untreated solid waste should not increase, till the proper facilities are in place.
• The Supreme Court directed the Secretary of Ministry of Housing and Urban Affairs, Government of India to convene a meeting of all concerned authorities to find out a solution and place the same before the Court.
• The Court observed that in the event the authorities fail to do the above the Court would consider passing a drastic order with a view to take care of the environment in the capital city of Delhi and surrounding areas.

Relevant Provision:

• Article 21 of Constitution of India- Right to life and personal liberty –
  • No person shall be deprived of his life or personal liberty except according to procedure established by law.

[Original Judgement]

Bar of Indian Lawyers Through Its President Jasbir Singh Malik v. D. K. Gandhi PS National Institute Of Communicable Diseases And Anr.

Date of Judgement/Order – 14.05.2024

Bench Strength – 2 Judges

Composition of Bench – Justice Pankaj Mittal, Justice Bela M. Trivedi

Case In Brief:

• The respondent Mr. D.K. Gandhi had hired the services of the appellant as an advocate for filing a Complaint in the Court under Section 138 of Negotiable Instruments Act.
• During the course of proceedings the accused agreed to pay the amount. It is the case of the complainant that the amount was received by the attorney but he did not give the same to the complainant. Instead he filed a suit for the recovery of his fees.
• The complainant therefore filed a complaint before the District Consumer Disputes Redressal Forum, Delhi and the issue was decided in favour of the complainant.
• Aggrieved by the order an appeal was file before the State Commission which held that services of lawyer do not fall within the ambit of Consumer Protection Act, 1986 (CP).
• The issue finally came before this Court.

Verdict:

• The Supreme Court discussed at length three issues that arose in this case:
  • Whether the Legislature ever intended to include the Professions or services rendered by the Professionals within the purview of the CP Act 1986 as re-enacted in 2019?
  • Whether legal profession is sui generis?
  • Whether a Service hired or availed of an Advocate could be said to be the service under “a contract of personal service” so as to exclude it from the definition of “Service” contained in Section 2 (42) of the CP Act 2019?
• Regarding the first issue, the Court held that the Legislature never intended to bring professionals within the ambit of CP Act either of 1986 or 2019. Also, the Court held that the 3 Judge decision of Indian Medical Association v. V.P Shantha (1995) deserves to be revisited and considered by a larger bench.
• Regarding the second issue the Court held that having regard to the role, status and duties of the Advocates as the professionals, we are of the opinion that the legal profession is sui generis i.e unique in nature and cannot be compared with any other profession.
• Regarding the third issue the Court held that that the services hired or availed of an Advocate would be that of a contract ‘of personal service’ and would therefore stand excluded from the definition of “service” contained in the Section 2(42) of the CP Act, 2019.
• Thus, the Court concluded the proceedings and finally held that a complaint alleging “deficiency in service” against Advocates practising Legal Profession would not be maintainable under the CP Act, 2019.

Relevant Provision:

• Section 2 (42) of CP Act - service. –
  • "service" means service of any description which is made available to potential users and includes, but not limited to, the provision of facilities in connection with banking, financing, insurance, transport, processing, supply of electrical or other energy, telecom, boarding or lodging or both, housing construction, entertainment, amusement or the purveying of news or other information, but does not include the rendering of any service free of charge or under a contract of personal service;

[Original Judgement]

Priti Agarwalla And Others v. The State of GNCT of Delhi and Others

Date of Judgement/Order – 17.05.2024

Bench Strength – 2 Judges

Composition of Bench – Justice S.V.N Bhatti and Justice M.M. Sundresh

Case In Brief:

• The complaint here is filed under the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989 (SC&ST Act) against the Appellants.
• The grievance of the respondent is that the information lodged on 29.04.2018 was not taken up, inquired, or investigated by the SHO of P.S. Fatehpur Ber.
• Hence, on 09^th May 2018, Respondent No. 2 filed an application under Section 156(3) of Criminal Procedure Code, 1973 (Cr.P.C), read with Section 200 of the Cr.P.C before the Ld. Chief Metropolitan Magistrate, South Saket Court.
• On 09.07.2018, the Assistant Commissioner of Police, sub-division, Mehrauli, New Delhi, filed an Action Taken Report.
• The Additional Sessions Judge-02, South District, Saket Court, New Delhi, by the order dated 02.08.2018 accepted the Action Taken Report and held that “this court cannot continue proceedings by treating this as complaint case under section 200 CrPC. Accordingly, the present application U/s 156(3) CrPC read with 200 CrPC stands dismissed”.
• Consequently, an appeal was filed before the Delhi High Court where the Court directed the first information report to be registered.
• Finally, criminal appeal was filed before the Supreme Court.

Verdict:

• The Supreme Court first of all discussed the law on Section 156 (3) of Cr.P.C.
  • When the application under section 156(3) of CrPC discloses a cognizable offence, then it is the duty of the concerned Magistrate to direct registration of the FIR, which is investigated by the investigation agency, in accordance with the law.
  • However, when the information received does not prima facie disclose the commission of a cognizable offence, but indicates the necessity for inquiry, in that case, the preliminary inquiry may be conducted in order to ascertain whether the offence complained is cognizable or not.
  • The purpose of the preliminary inquiry is not to verify the veracity or otherwise of the information received but only to ascertain whether the information received reveals a cognizable offence or not.
• Thus, the Court held that the Metropolitan Magistrate did not commit any illegality or irregularity by seeking preliminary inquiry or seeking Action Taken Report from the police station.
• The next question that the Court went into was to examine if the complaint makes out the cognizable offence. The Court held that the insinuations talked about here do not cover the ingredients under Section 3 (1) (r) and Section 3 (1) (s) of SC & ST Act.
• The Supreme Court finally held that the observations of the High Court of Delhi directing the registration of an FIR, for the reasons recorded is untenable and warrants interference in the appeal.

Relevant Provision:

• Section 156 (3) of Cr.P.C - Police officer’s power to investigate. –
  • Any Magistrate empowered under section 190 may order such an investigation as above mentioned.
• The abovementioned provision is contained in Section 175 (3) of Bhartiya Nagrik Suraksha Sanhita, 2023 (BNSS)
  • Any Magistrate empowered under section 210 may, after considering the application supported by an affidavit made under sub-section (4) of section 173, and after making such inquiry as he thinks necessary and submission made in this regard by the police officer, order such an investigation as above-mentioned.

[Original Judgement]