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-Report by Sava Vishnu Vardhan

In the case of Nagarathinam V. State Through The Inspector Of Police | Criminal Appeal No. 1389 Of 2023, the Hon’ble Supreme Court of India overturned the order of the State of Tamil Nadu rejecting the request for the Appellant’s premature release in the case of murder. 

FACTS OF THE CASE: 

Due to repeated threats from her spouse, Suresh, the mother, the appellant, chose to kill herself along with her children. She purchased pesticides intended for plants and, in accordance with her determination to pursue this line of action, she administered poison to her two children, Ramar and Laxmanan, who are identical twins. Then, the appellant’s niece pushed the pesticide down when she put it in a tumbler to drink it herself. Unfortunately, the two kids were pronounced dead when they got to the hospital. The appellant’s niece forced it down just as she was going to eat it herself.

Upon conviction of the appellant under Sections 302 and 309 of the IPC, Additional District and Sessions Judge (Fast Track Court), Dindigul sentenced her to life in jail.

Following a trial, the appellant was found guilty of violating Sections 302 and 309 of the IPC by the learned Additional District and Sessions Judge (Fast Track Court), Dindigul by Judgement and Order in Sessions Case No. 92 of 2004 dated 10.01.2005 and sentenced to life in jail. The Appellant requested an early release after serving nearly 20 years in jail. However, in light of the heinous and savage character of the offence (s) perpetrated by her, the State of Tamil Nadu rejected the State Level Committee’s proposal in G.O. (D) No. 1127, dated 24.09.2019.

APPELLANT‘S CONTENTIONS: 

Even if it is considered that the appellant attempted to poison herself and her children in order to end their lives, learned senior counsel for the appellant argued that this was only possible as a result of an unexpected provocation. Comes under IPC Section 300’s Exception 1. In addition, the fact that the appellant committed family suicide alongside her two boys is an extenuating circumstance protected by Section 300 of the IPC’s Exception 1. Additionally, if the mother had survived or managed to flee while the children perished, it would be illegal under Section 304 Part I of the IPC. In this regard, the Madras High Court’s learned Division Benches’ rulings in Guruswami Pillai v. State, 1991 (1) MWN (Cr.) 153 and Suyambukkani v. State, 1989 SCC OnLine Mad 481 were cited.

RESPONDENT’S CONTENTIONS: 

It was strongly maintained by knowledgeable counsel for the lone Respondent-State opposing the petitions that the act(s) perpetrated by the Appellant were cruel and violent as young children were given poison and put to death, hence it was only fair that the State had rejected the Appellant’s early release. It was argued that the High Court maintained the conviction under Section 302 of the IPC since both the Trial Court and the High Court carefully considered every aspect of the 6 issues.

JUDGEMENT:

The Judgement was delivered by Ahsanuddin Amanullah, J. the hon’ble Supreme Courtdetermined that the scenarios presented by the appellant are not protected by the exceptions listed under Section 300 of the IPC given the facts and circumstances of the current instance. Even more so when the people who were fed the pesticide administered by the appellant and perished from it did not provide their consent. In Guruswami Pillai v. State of Madras, the father attempted suicide as well as killing his little daughter by slicing her throat with a knife. It was revealed during the trial that the father and daughter had decided to take their own lives together. Thus, the High Court in that case determined that it was prudent to provide a benefit by converting the conviction from Section 302, IPC to one under Section 304 Part I, IPC. This was done in light of the background information, as well as the parties’ mental and social conditions, financial situation, and the surrounding circumstances. The appellant has already endured the brutal hand of fate, according to the supreme court. The Court further pointed out that it can’t only be said that the act was “cruel and brutal” because the appellant tried to kill herself but was saved just in time by her niece. She had already served nearly 20 years in prison, to add to it. This prompted the Bench to overturn the government injunction and order her release.

The order of the State of Tamil Nadu, as stated in G.O. (D) No. 1127 dated 24.09.2019, issued by the Home (Prison-IV) Department and signed by the Additional Chief Secretary to Government, rejecting the request for the Appellant’s early release is reversed for the aforementioned reasons.

READ FULL JUDGEMENT: https://bit.ly/3BejUPP

-Report by Jay Prakash Chandravanshi

This case pertains to the appointment of a Peon on the sympathetic ground after his father died in harness. The petitioner challenged his termination by Maharashtra state electricity Distribution Company Limited (MSEDCL). The service conditions of the employees are regulated by the Classification and Recruitment Regulations, 2005 (2005 Regulations), Clause 16 of the 2005 Regulations.

FACTS 

The petitioner was appointed as a peon after the death of his father on compassionate grounds.  The father of the petitioner worked as a lineman with respondent no. 1 – Maharashtra State Electricity Distribution Company Limited (MSEDCL).  There was a certain condition which stated that the employee must fill out the character and antecedents verification form contained with the appointment order while reporting to work, and if it shows negative results, the employee will be fired. It was clear that the petitioner does not fulfil information specified in column 11 and the police report reveals that the petitioner is charged with a crime under various sections of the Indian Penal Code and Section 3(1)(r)(s) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 [Atrocities Act]. The respondent issued a show cause notice asking him why he should not be terminated and the petitioner reply the notice that he was falsely framed and had a limited role. The employer was not satisfied with the response provided and terminated the service of the employee.

PETITIONER’S CONTENTION

The petitioner’s position is limited to intervening in the fight, rather than with the righteous aim of stopping the fight.Taking reference from Avtar Singh Vs. Union of India and others, emphasized the nature of duties and sensitivity of position, the impact of suppression on suitability and post peon not per se sensitive.

RESPONDENT’S CONTENTION

If a criminal case was pending against the respondent and the facts were hidden, the employer would have to ignore such defaults and deficiencies, but a non-disclosure of material information could be a ground for dismissal.

JUDGEMENT

The high court held that there are exceptional circumstances that could have been taken into account by the employer in making the decision to terminate employment. We would make a concerted effort not to due to the sequential nature ofour discussion, we will direct the employer to reconsider the issue from anew with the observation based on Avtar Singh. We are setting aside the order of termination.

READ FULL JUDGEMENT: https://bit.ly/44smYoP

-Report by Arunima Jain

The Supreme Court on Monday, in the case of Essemm Logistics v. Darcl Logistics Limited& Anr., delved into the meaning and extent of Section 16 of the Carriers by Road Act, 2007read with the Order VII Rule 11 of the Civil Procedure Code (CPC). According to the court, no notice is required under Section 16 of the new Act for instituting any suit or legal proceedings, much less a counter-claim against the common carrier for recovering any loss other than the loss of or damage to the consignment.

FACTS

In the matter at hand, the appellant is a high-end carrier providing service, governed by theCarrier by Road Act, 2007. The first respondent had originally instituted a suit against theappellant for the acquisition of Rs.4,09,53,847/- with 18% interest until its realization,because the current appellant had failed to make payments due on 530 bills raised between November 14, 2011, and January 31, 2012. Accordingly, the first defendant/current appellant had filed a counterclaim of Rs. 13,03,00,000/- with 24% interest on the said amount till realization. This was majorly on three grounds:- Loss of business opportunity due to the diversification of cargo;- Loss of reputation;- Loss on account of idling of men, machines & overheads.

The present first respondent sought to dismiss the counterclaim of the first defendant on thegrounds that it was preferred without issuing the necessary notice, as mistakenly intended bySection 10 of the Carriers Act, 1865, but in fact by Section 16 of the new Act. The Court ofFirst Instance dismissed the plaint for failure to issue mandatory notice prior to thepresentation of the counter-claim, and the High Court upheld that decision. Accordingly, thefirst defendant has filed this appeal in the Supreme Court to allow the plea for a counterclaim.

JUDGEMENT

Upon giving due regard to the facts and law in the above-mentioned case, it is contended bythe Hon’ble Court that a simple reading of Section 16 of the new Carriage by Road Actindicates that it is only relevant in the event of a suit or legal procedure being institutedagainst a common carrier for any loss or damage to the consignment. The provision is inapplicable to any other type of loss or any suit or legal procedures brought to recover damages for loss of a different sort. In the court’s opinion, there was no violation of Section 16 and it was observed that the first courts have erred in their judgement by rejecting thecounterclaim under Order VII Rule 11 of the CPC as barred by Section 16 of the new Act. Hence, the impugned judgement and order have been repealed and the current appeal is allowed. The Court of first instance is directed to further allow the counterclaim.

READ FULL JUDGEMENT: https://bit.ly/3ns8J2E

-Report by Arunima Jain

The Delhi High Court on Friday carefully examined Order XIV Rule 5 & Order XI of the Civil Procedure Code, 1908 while adjudicating the present case. Herein, it has been made amply clear by the court that when filing additional documents in a commercial lawsuit, the plaintiff cannot claim that these are in response to the arguments made by the defendant in the written statement. Order XI of the CPC as it relates to commercial lawsuits would be completely disregarded if it allowed a party to file supplementary papers at any point.

FACTS

In the matter at hand, the plaintiff had pre-existent issues already filed in front of the Hon’bleCourt in the current matter. The present application was filed on behalf of the plaintiff toinclude an additional issue faced by the plaintiff. It was submitted before the court that anissue regarding the rendition of accounts by the defendant had not been framed while preparing for the evidence, in the issues provided. A Local Commissioner was appointed on December 16th, 2022, to record the testimony in the case. The plaintiff has submittedaffidavit-based evidence, but the testimony has not yet been entered into the record.

CONTENTIONS

Petitioner

The petitioner’s learned counsel has submitted before the High Court that while preparing forthe evidence in the case, the plaintiff accidentally became aware that the problem surroundingthe defendant’s rendition of accounts had not been framed. The averments contained in

paragraph 15 of the plaint about the defendant’s rendition of accounts was drawn attention.The defendant has refuted the information in this very paragraph in a written statement. Moreover, the plaintiff asserts that the Licence Agreement between the parties was terminatedon December 30, 2016, that there is no longer an active contract between the parties, and that the defendant is only making payments to the plaintiff in accordance with temporary ordersissued by this Court.

Respondent

Contrary to the petitioner’s counsel, the respondent’s learned counsel submits that onNovember 28, 2019, when the problems in the lawsuit were being framed, the Court did notframe any such issue regarding the rendering of accounts. This was due to the fact that theLicence Agreement that governed the plaintiff and defendant’s relationship required thedefendant to pay the plaintiff an annual licence fee. As a result, it was unnecessary to framethe problem of the defendant producing a statement of finances. In addition to that, theplaintiff should have provided the aforementioned documents with the plaint because it washis responsibility to prove his ownership of the works that are the subject of the current lawsuit when he filed it. Furthermore, it is claimed that the current application was submitted more than three years after the issues were first framed. The plaintiff has been unable toprovide any justification for failing to include the papers with the replication.

JUDGEMENT

Upon giving due regard to the facts and law in the above-mentioned case, it is contended bythe Hon’ble Court that it is clear from the contentions by both the parties and the precedentsthat the plaintiff has clearly argued that the documents are being presented to refute theposition put up by the defendant and, as a result, could not have been filed at the time the complaint was filed. However, the plaintiff has not explained why the aforementioned documents were not filed with the replication. Moreover, the plaintiff has also missed from providing just cause as to failing to provide reasonable cause for untimely filing. If a party isallowed to file additional documents at any point throughout the suit, the entire purpose of the CPC regulations relevant to commercial lawsuits would be negated. Accordingly, the present application in the High Court of Delhi has been dismissed.

READ FULL JUDGEMENT: https://bit.ly/3LCJzb1

-Report by Sejal Jethva

In Suraj VS the State of Maharashtra Home Department (Special), the petitioner filed a writ petition alleging that a total of seven violations were committed between the years of 2013 and 2022, with just two of those offences occurring in the latter year.

FACTS

The petitioner is challenging the legality or lack thereof of the impugned order dated 20/10/2022 made by respondent No.2 / District Magistrate, Amravati in accordance with Section 3(1) of the Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug Offenders, Dangerous Persons, Video Pirates, Sand Smugglers, and Persons Engaged in Black Marketing of Essential Commodities Act, 1981 (MPDA Act)

PETITIONER’S CONTENTION

Senior Counsel testifying on behalf of the petitioner fiercely argued that both of the impugned orders are defective in law, lacking in rational thought and reflecting subjective pleasure with the claimed detainee’s actions. He would contend that the detention order essentially violates the tenets on four different levels. First, he claimed that neither the Sub-Divisional Police Officer (SDPO) nor the Detaining Authority interacted with Witnesses ‘A’ and ‘B’ to record their subjective satisfaction or the accuracy of the statements made by the witnesses. Second, he asserted that the Detaining Authority disregarded the bail decisions made in various cases.

The Detaining Authority was not given or given copies of these bail orders, and this fact was not taken into consideration before the detention order was granted. Thirdly, he asserted that the detenue’s alleged actions are primarily directed against individuals and would most likely result in a law and order issue rather than a threat to the general public order. Finally, he asserted that there was an unexplained delay in serving the confirmation order on the detinue, which led to the petitioner’s filing of an effective response.

RESPONDENT’S CONTENTION

Contrarily, the Public Prosecutor testifying on behalf of respondents Nos. 1 and 2 State argued that the detention’s grounds contain all pertinent information, demonstrating unequivocally that the detaining authority carefully considered all of the information presented to it before reaching a conclusion that, in his view, is grounded in legal principles. While taking such drastic action, the detaining authority is not breaking any laws. He would contend that the SDPO spoke with both witnesses, went to the location they had described, and only then filed his report, which the Detaining Authority had looked over as material.

Then he would contend that the grounds for detention reflect the Detaining Authority’s consideration of the bail orders. He further argued that the detinue’s activities have a negative impact on public order and that residents in the area are afraid to approach law enforcement agencies or the court to freely testify against the detinue because of this fear. He continued by saying that the situations that the detaining authority was considering were directly related to the custody order.

JUDGMENT

1. The third paragraph of the reasons for imprisonment states that a total of seven violations were reported between 2013 and 2022. Similar preventative measures were taken against the detained in Chapter Case No. 38/2017, and a bond was executed for three years of good conduct. Only two of the seven offences, those registered in 2022 at the Paratwada Police Station, along with the in-camera statements of witnesses A and B, were taken into consideration by the detaining authority for the current order of detention, as stated in Paragraph No. 4.

2. In the present case, the issue was brought before the Advisory Board, which determined that there was adequate justification to maintain custody. Only then, the State Government affirmed the detention in its decision dated 24 November 2022, which was effective immediately and would last for 12 months. The confirmation order was issued by the government on 24 November 2022, but the detention order was issued on 20 October 2022. It demonstrates that the order was upheld within five weeks of the date of the detention order. As a result, there is no delay in confirming the government’s custody order.

3. As a result, we believe the petitioner’s argument in the current writ petition lacks merit.  The petition is consequently without merit and subject to dismissal for the grounds listed above. Therefore, the petition is denied. The rule is still in effect.

READ FULL JUDGEMENT: https://bit.ly/3AFsZB0

-Report by Mehul Jain

It was held by the Delhi High Court in the case of Daulat Ram Dharam Bir Auto Private Limited & Ors Vs Pivotal Infrastructure Private Limited & Ors. that on April 27, the learned Arbitrator shall fix his fee in consultation with the counsel for the parties. All the contentions of the parties are left open to be decided by the learned Arbitrator. The learned Arbitrator shall give his disclosure in terms of section 12 of the Act of 1996. It is the conclusion of the Delhi High Court.

FACTS

The judgment is made by the learned Single Judge bench “Hon’ble Mr Justice V. Kameswar Rao” On 27 April 2023. 

It is a case where the petitioner’s Nos. 1 to 3 („Petitioner Group‟) are companies duly incorporated under the provisions of the Companies Act, 1956 („Act of 1956‟), have filed the instant petition under section 11 of the Arbitration and Conciliation Act, 1996. Whereas respondent No. 1 herein, is also a company duly incorporated under the provisions of the Act of 1956, having its registered office at Plot No.12, Sector-4, Faridabad, Haryana-121004. It is stated that respondent No. 2 is also a company duly incorporated under the provisions of the Act of 1956 and was earlier a part of the Petitioner Group. However, currently the same is under liquidation and is thus being sued through its Liquidator appointed by the National Company Law Tribunal. 

Facts leading to the filing of the instant petition (as it relates to the Petitioner Group) are: that the Petitioner Group together with respondent No.2, each of whom owned a piece of land, handed over the possession of a parcel of their lands to the respondent No.3 (which is also a company incorporated under the provisions of the Act of 1956, [„Original Developer‟ herein]) and permitted the latter to develop, construct and complete the building on such lands, i.e., built-up area at projects titled as „Royal Heritage‟ & „Faridabad Eye‟ under License No. 78 of 2009 & 33 of 2010, granted by Directorate of Town and Country Planning, Haryana, („DTCP‟), Haryana, [„project land‟]. While the Petitioner Group and Respondent No.2 provided their piece of land for the development and construction of buildings, respondent No.3, in exchange for the same, undertook the obligation to provide a 10% share in the built-up area of the project land to the Petitioner Group.

It is stated, the Petitioner Group and the Respondent No. 2 companies transferred the development rights over the said project land to Respondent No.3 through Collaboration Agreements dated June 04, 2007, while retaining the rights, title and interest to the land underneath amongst themselves. So, in light of forgoing facts and circumstances, the Petitioner Group has filed the present petition seeking the appointment of a Sole Arbitrator for adjudication of disputes which have arisen between the Petitioner Group and respondent No.1.

PETITIONER’S CONTENTION

Whereas it has been extensively submitted by Mr Rajiv Bajaj, learned counsel appearing on behalf of the Petitioner Group that the obligation of giving 10% of the built-up area back to the Petitioner Group became legally ascertainable only on the issuance of the Occupation Certificates (i.e., on November 30, 2017, June 25, 2018, and August 17, 2020) by the DTCP, Haryana and as on date Occupation Certificates in respect of Towers no. l and no. 2, are yet to be received by respondent no. l. Reliance in this regard has been placed on section 264 of the Haryana Municipality Act, 1994.

They submitted that the claim of 10% built-up area has never been sought before any Court or Tribunal as the same became legally ascertainable only when the Flats built on the project land received necessary approvals in the form of Occupation Certificates. 

They submitted that the claims sought by the Petitioner Group are well within the period of limitation as the project is yet to be completed, and even otherwise, before the grant of the Occupation Certificate, the units could not have been identified and allocated to the Petitioner Group. So, they contended that the present petition is well within the period of limitation and thus, the same should be allowed and disputes be referred to arbitration. 

So, it is the case of the Petitioner Group and so contended by Mr Rajiv Bajaj, learned counsel appearing on behalf of the Petitioner Group that if the afore-said reliefs, as sought, are not granted then they shall be left with no remedy, as the respondent No.1 shall, alienate the 10% built-up area falling under the share of the Petitioner Group under the Collaboration Agreements, Deed of Assignment and all other documentations, to unaware homebuyers.

RESPONDENT’S CONTENTION

Mr Harish Malhotra learned senior counsel appearing for respondent No.2, that the obligation of giving 10% built-up area back to the Petitioner Group became legally ascertainable only on the issuance of the Occupation Certificates (i.e., on November 30, 2017, June 25, 2018, and August 17, 2020) by the DTCP, Haryana and as on date Occupation Certificates in respect of Towers no. l and no. 2, are yet to be received by respondent no. l. Reliance in this regard has been placed on section 264 of the Haryana Municipality Act, 1994.

It is also their submission that the present dispute arises out of respondent No.1 undertaking the obligations of respondent No.3 (Original Developer) under the Collaboration Agreements by way of the Deed of Assignment.

It is also their submission that the present petition is not barred by the contours of res judicata (constructive as well) or Order II Rule 2 of the CPC.

On the other hand, in essence, it is Mr Singh’s primary submission that claims sought to be referred to arbitration by the Petitioner Group: (i) are not arbitrable; (ii) are barred by limitation; and (iii) have already been adjudicated between the parties in previous civil and arbitral proceedings. So, he submitted that when the petition under section 11 of the Act of 1996 is itself not maintainable then on this ground alone, the instant petition should also be dismissed.

So, on the afore-said grounds, Mr Singh has argued for the dismissal of the instant petition.

COURT’S DECISION

Having heard the learned counsel for the parties and perused the record, at the outset, it may be stated, this petition has been filed by the Petitioner Group. A prayer has also been made on behalf of respondent No.2 for allowing it to participate in the arbitral proceedings as the claimant for its share in the built-up area, to avoid multiplicity of litigation. The Notice invoking the Arbitration Clause was sent by respondent No.2 only on October 19, 2022, i.e., during the pendency of these proceedings. It is not known whether any reply has been sent by respondent No.1 to the said Notice. In any case, in the absence of a substantive petition by respondent No.2, the aforesaid prayer in these proceedings cannot be accepted. Nonetheless, nothing precludes respondent No.2 to seek reference following the law. 

The reliance placed by Mr Malhotra on the judgment of the Co-ordinate Bench of this Court in the case of Raghuvir Buildcon Pvt. Ltd. v. Ircon International Limited, (2021) SCC OnLine Del 2491, in support of his contention that the claim of 10% share in the developed area by the Land Owners has not been settled by former the arbitration proceedings. Because of my above discussion, the petition under section 11 of the Act of 1996 needs to be allowed. 

I accordingly appoint Justice Rajiv Sahai Endlaw, former Judge of this Court as the learned Arbitrator to adjudicate the dispute(s) which have arisen between the Petitioner Group and respondent No.1, in respect of 10% of the built-up land. 

The learned Arbitrator shall fix his fee in consultation with the counsel for the parties. All the contentions of the parties are left open to be decided by the learned Arbitrator. The learned Arbitrator shall give his disclosure in terms of section 12 of the Act of 1996.

READ FULL JUDGEMENT: https://bit.ly/3ACLnu9

-Report by Sejal Jethva

The State of Uttar Pradesh and Others v. Rachna Hills and Others this instance, Section 16-FF of the Act and Regulation 17 of the Regulations outlines the process for choosing and appointing heads of institutions and teachers at minority institutions. Although the specific selection process is outlined in Regulation 17, Section 16-FF, subsection (3) of the Act requires that the District Inspector of Schools provide his or her approval before appointing a teacher.

FACTS

Two minority institutions took the lead in the teacher selection process and submitted their requests for DIOS clearance. The Government changed Regulation 17 to include a new selection process before the required permission was given. In order to ensure that the proposal complied with the new method, the DIOS returned it. By submitting writ petitions in accordance with Article 226 of the Constitution, the institutions contested the DIOS’s decision forcing the Management to abide by the new Rules.

According to the decisions challenged before us, the High Court determined that the selection process was complete and the suggested candidates had a vested right to be appointed after Management sent the names to the DIOS for approval. The High Court also made reference to and relied on the rule that vacancies that occur before rules are amended must be regulated by the rules in effect at the time of the occurrence of the vacancy. We are hearing an appeal from the State of U.P.

APPELLANT’S CONTENTION

We have maintained that the selection process doesn’t end until the DIOS has given its required clearance. A considered appointment has no place, according to our analysis of the legislative framework and the supporting laws. Additionally, we have made it clear that in light of recent decisions by this Court, the concept used by the High Court in order to apply outdated standards to previous vacancies is neither appropriate to the circumstances of the current cases nor sound legal precedent.

RESPONDENT’S CONTENTION

The Respondent-candidates appealed the DIOS’s judgment in question by submitting a writ petition to Allahabad’s High Court of Judicature4. The judgment was overturned and the DIOS was instructed to rethink it by the learned Single Judge in an order dated 07.05.2018 on the grounds that the modified Regulations would not apply because the selection procedure had reached its conclusion.

JUDGMENT

1. In order to evaluate the Respondents’ claims that individuals whose names are submitted to the Management for approval by the DIOS acquire a vested right to be appointed as Teachers, it is important to look at Section 16-FF.

2. Respondents claim that in accordance with Regulation 1815, suggested candidates should be presumed to have been appointed if the DIOS fails to approve them within 15 days following the Management’s proposal.

3. The Division Bench and the High Court’s Single Judge accepted the selected candidates’ argument that the 19 Rules and Regulations in effect at the time the vacancies arose and not the Regulations that would later be amended could only be used to fill the vacancies for the post of a teacher.

4. In light of the law’s unambiguous formulation, we have no qualms about rejecting the learned counsels for the respondents’ argument that the vacancies that existed before the alteration to Regulation 17 of Chapter II must be regulated by unaltered norms.

5. Civil Appeal No. 1882 of 2023, Civil Appeal No. 1883 of 2023, and Civil Appeal No. 1884 of 2023 are all accepted for the reasons mentioned above. As a result, the decisions rendered by the High Court of Judicature in Allahabad on January 16, 2019, January 16, 2019, and January 18, 2019, in the cases of Special Appeal Defective No. 42 of 2019 and Writ Appeal No. 27341 of 2018 and Special Appeal Defective No. 38 of 2019, respectively, are annulled.

6. No cost-related order.

READ FULL JUDGEMENT: https://bit.ly/3LAs0Y3

-Report by Utkarsh Kamal

In the present case supreme court discusses the conviction when the trails court records are absent and can not be obtained. White discussing the present case by the division bench of Justice Krishna Murari and Justice Sanjay Karol observed that the job of the Court of Appeal is not to depend on the lower Court’s judgment to uphold the conviction but, based on the record available before it duly called from the Trial Court and the arguments advanced before it, to come to a conclusion thereon…Had there been properly preserved records of the Trial Court, the issue in the present appeal as to whether the High Court could uphold a conviction having not perused the complete Trial Court record, would not have arisen they also talk about the digitalisation of the court for smoothening the judicial process.

Facts of the case:

The prosecution has been successful in proving that accused J.K Rode being working at the post of a   Public   Servant as   Assistant   Commercial Manager,   Northern   Railway,   Lucknow made a 2 demand of   Rupees   Five   Hundred from   Chief Ticket   Inspector   Shri   Jai   Prakash   Narayan Upadhyay on 03.05.95 to dispose of the charge sheet issued against him. He was caught red-handed receiving the bribe on 03.05.95. He received Rs. 500 (Rupees five hundred) from said J.P.N Upadhya being posted as a public servant misusing his post as a public servant for his gain in a corrupt and illegal manner.   Thus,   the offence under sections 7, 13(1) and 13(2) of the PC Act 1988 is proved against the accused and he is liable to be punished for these charges. Accused is on bail and his bail bonds are discharged. The accused should be taken into custody then the accused person moves to the High Court where the High Court upheld the conviction of the accused person.

Legal issue:

1)Whether in the absence of the records of the Court of Trial, the appellate Court could have upheld the conviction and enhanced the quantum of the fine.

2)Whether, given the language employed under Section 385 of CrPC, the present situation constitutes a violation of the accused’s fundamental rights under Article 21 of the Indian constitution

Related laws:

1)Sec 7 of the Prevention of corruption act: Public servant taking gratification other than legal remuneration in respect of an official act.—Whoever, being, or expecting to be a public servant, accepts or obtains or agrees to accept or attempts to obtain from any person, for himself or for any other person, any gratification whatever, other than legal remuneration, as a motive or reward for doing or forbearing to do any official act or for showing or forbearing to show, in the exercise of his official functions, favour or disfavour to any person or for rendering or attempting to render any service or disservice to any person, with the Central Government or any State Government or Parliament or the Legislature of any State or with any local authority, corporation or Government company referred to in clause (c) of section 2, or with any public servant, whether named or otherwise, shall be punishable with imprisonment which shall be not less than six months but which may extend to five years and shall also be liable to fine.

2) Sec 13(1),Sec13(2) of the prevention of the corruption act 

3)SEC.385. of Criminal Procedure code Procedure for hearing appeals not dismissed summarily.—(1) If the Appellate Court does not dismiss the appeal summarily, it shall cause notice of the time and place at which such appeal will be heard to be given—

(i) to the Appellant or his pleader;

(ii) to such officer as the State Government may appoint on this behalf;

(iii) if the appeal is from a judgment of conviction in a case instituted upon complaint to the complainant;

Appellant’s contention:

On the surface of the record, it is clear that the relevant portions of the record, in particular, could never have been recreated by the relevant District Court. Despite this, the Court sustained the conviction on the basis of the partially reconstructed record, which only contained a few documents, such as the FIR. The knowledgeable attorney for the appellant claims that the law is clear on the matter and that without these records, it is impossible to say that a conviction was obtained on solid evidence and is therefore subject to being overturned.

Respondent’s contention : 

Not every conviction alters a person’s personality forever. A conviction may occasionally have little to no effect on a person’s behaviour and character. Furthermore, even though key evidence was lacking, it would be reasonable to uphold the conviction in particular circumstances. Although 500 rupees may not seem like much, if the evidence leads to a conviction, the accused should still be held accountable for their acts. The absence of an appeal does not necessarily imply that the defendant is innocent or deserves a second chance. Instead, in order to reach a fair and just judgment, the relevant data should be thoroughly analyzed and taken into account

Judgment: 

The Court of Appeal’s responsibility is to reach a decision on the matter “based on the record available to duly called from the Trial Court and the arguments advanced before it,” rather than relying on the lower court’s decision to affirm the conviction. The Court further held that in the absence of a fair legal process, the protection of Article 21 rights includes the freedom from any restrictions thereon. This includes the right of the person filing an appeal to contest the findings of fact made by the trial court, which can only be done when the record is available to the Court of Appeal. We hold that noncompliance with the mandate of the section, in certain cases contingent upon specific facts and circumstances of the case, would result in a violation of Article 21 of the Constitution of India, which we find to be the case in the instant case. Therefore, in the considered opinion of this Court, it is not within prudence to lay down a straightjacket formula.

As a result, the Court overturned the appellant’s conviction.

Court also directed the High Court to the digitization of the lower courts so these kinds of situations could not arise in the future.

READ FULL JUDGEMENT: https://bit.ly/3oRvPjS

On the occasion of the 50th anniversary of the Kesavananda Bharati Judgement, NUJS, in collaboration with Nani A. Palkhivala Memorial Trust and supported by Tata Group, presents Nani A Palkhivala Memorial Essay Competition.

Theme

Application of Basic Structure Doctrine to Contemporary Issues

Sub-themes

1. Scope of Judicial Review
2. Powers of Promulgating Ordinances

Prize money under each sub-theme of the Essay Competition

• Winner: 75,000 INR
• Runners-up: 50,000 INR
• 2nd Runner up: 25,000 INR

Timeline

1. April 24, 2023: Launch of the Essay Competition & Opening of Registration.
2. May 24, 2023: Deadline for Registration for the Essay Competition.
3. July 31, 2023: Deadline for Submission for the Essay Competition.
4. October 2023: Announcement of Results.
5. November 2023: Conclave @WBNUJS.

NUJS shall host a Nani A. Palkhivala Memorial Conclave where select participants can present their essays before distinguished guests. The NUJS Law Review shall publish selected entries in a special edition.

Registration Link

To register, CLICK HERE

Guidelines

For more details, check https://www.sjanujs.org/nani-a-palkhivala-memorial-essay-competition.

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