NON-REPORTABLEIN THE SUPREME COURT OF INDIACRIMINAL APPELLATE JURISDICTIONCRIMINAL APPEAL NO. 208 OF 2020(Arising out of SLP(Crl.) No.4201 of 2019)VICKY @ VIKAS …AppellantVERSUSSTATE (GOVT. OF NCT OF DELHI) …RespondentJ U D G M E N TR. BANUMATHI, J.Leave granted. This appeal has been filed by the appellant against theimpugned judgment dated 20.05.2016 passed by the High… Read More whether the case of the appellant is a fit case for exercising the discretion in directing the sentence of imprisonment to run concurrently with the sentence of imprisonment imposed in the earlier case ? Since the appellant was already undergoing imprisonment in FIR No.64/2011, in terms of Section 427 Crl.P.C., subsequent sentences shall run consecutively until and unless the court specifically directs that they shall run concurrently. The appellant has already undergone 10 years of imprisonment for conviction in FIR No.64/2011. The appellant is currently undergoing imprisonment for conviction in FIR No.67/2011 out of which he has already undergone 01 year 06 months and 16 days as of 29.01.2020 . If the appellant is to undergo the sentences consecutively, the appellant has to undergo another about five years plus four years of imprisonment for the conviction in FIR No.263/2009. Pursuant to the order dated 13.12.2019, the Probation Officer, Department of Social Welfare, Govt. of NCT of Delhi had sent the report dated 10.01.2020 stating the family background and also that there is ample scope of improvement in the behaviour of the appellant and that he may be given a chance for reformation and reintegration with the family and the society. As per the report filed by the Probation officer dated 10.01.2020, on visiting the residential address of the appellant, it was found that his family is very poor and residing in a 50 yard house for the last 20 years. The father of the appellant is 11 58 years old, having ill health and the only bread winner in the family, was working as carpenter. The mother of the appellant was suffering from cancer and was not able to take treatment due to the poor economic condition. The father of the appellant submitted that the appellant was helping in his work before conviction. The elder sister of the appellant is married, but since the last one and a half year, she has been living in her maternal house due to domestic violence in her in-laws’ house. On enquiring from neighbours, they reported in favour of the appellant and his family. The family of the appellant expressed positive attitude to be reunited with the appellant and desired to live a normal social life. The appellant has full acceptance of his family and the appellant has also shown keen interest and willingness to re-unite with them. Considering the report of the Probation Officer, illness of the mother of the appellant, his family background, facts and circumstances of the case and in the interest of justice, in our view, this is a fit case for exercising discretion in directing the sentence of imprisonment to run concurrently. Since the appellant has a poor economic background, fine amount of Rs.10,000/- imposed on him each in FIR No.67/2011 and FIR No.263/2009 are set aside and therefore, the appellant need not to undergo default sentence of 12 imprisonment. This order to run the sentence of imprisonment concurrently has been made in the peculiar facts and circumstances of the case and the illness of the appellant’s mother and hence, the same may not be quoted as precedent in other cases
REPORTABLEIN THE SUPREME COURT OF INDIACRIMINAL APPELLATE JURISDICTIONCRIMINAL APPEAL NO. 125 OF 2020(Arising from SLP(Crl.) No. 590 of 2019)Sushil Sethi and another ..AppellantsVersusThe State of Arunachal Pradesh and others ..RespondentsJ U D G M E N TM.R. SHAH, J.Feeling aggrieved and dissatisfied with the impugnedjudgment and order dated 07.09.2018 passed by the High Courtof Gauhati… Read More Quashing of Criminal Proceedings – Section 420 read with Section 120B of the IPC – At this stage, it is required to be noted that though the FIR was filed in the year 2000 and the chargesheet was submitted/filed as far back as on 28.5.2004, the appellants were served with the summons only in the year 2017, i.e., after a period of approximately 13 years from the date of filing the chargesheet. Under the circumstances, the High Court has committed a grave error in not quashing and setting aside the impugned criminal proceedings and has erred in not exercising the jurisdiction vested in it under Section 482 Cr.P.C.- there are no specific allegations and averments in the FIR and/or even in the chargesheet that fraudulent and dishonest intention of the accused was from the very beginning of the transaction. It is also required to be noted that contract between M/s SPML Infra Limited and the Government was for supply and commissioning of the Nurang Hydel Power Project including three power generating units. The appellants purchased the turbines for the project from another manufacturer. The company used the said turbines in the power project. The contract was in the year 1993. Thereafter in the year 1996 the project was commissioned. In the year 1997, the Department of Power issued a certificate certifying satisfaction over the execution of the project. Even the defect liability period ended/expired in January, 1998. In the year 2000, there was some defect found with respect to three turbines. Immediately, the turbines were replaced. If the intention of the company/appellants was to cheat the Government of Arunachal Pradesh, they would not have replaced the turbines which were found to be defective. In any case, there are no specific allegations and averments in the complaint that the accused had fraudulent or dishonest intention at the time of entering into the contract. Therefore, applying the law laid down by this Court in the aforesaid decisions, it cannot be said that even a prima facie case for the offence under Section 420 IPC has been made out. It is also required to be noted that the main allegations can be said to be against the company. The company has not been made a party. The allegations are restricted to the Managing Director and the Director of the company respectively. There are no specific allegations against the Managing Director or even the Director. There are no allegations to constitute the vicarious liability. In the case of Maksud Saiyed v. State of Gujarat (2008) 5 SCC 668, it is observed and held by this Court that the penal code does not contain any provision for attaching vicarious liability on the part of the Managing Director or the Directors of the company when the accused is the company. It is further observed and held that the vicarious liability of the Managing Director and Director would arise provided any provision exists in that behalf in the statute. It is further observed that statute indisputably must contain provision fixing such vicarious liabilities. It is further observed that even for the said purpose, it is obligatory on the part of the complainant to make requisite allegations which would attract the provisions constituting vicarious liability. In the present case, there are no such specific allegations against the appellants being Managing Director or the Director of the company respectively. Under the circumstances also, the impugned criminal proceedings are required to be quashed and set aside.
REPORTABLEIN THE SUPREME COURT OF INDIACIVIL APPELLATE JURISDICTIONCIVIL APPEAL NO. 6597 OF 2008Star India (P) Ltd. Appellant(s)VERSUSSociety of Catalysts & Anr. Respondent(s)WITHCIVIL APPEAL NO. 6645 OF 2008J U D G M E N TMOHAN M. SHANTANAGOUDAR, J.These appeals arise out of the judgment dated 11.9.2008 ofthe National Consumer Disputes Redressal Commission (“NationalCommission”) allowing the consumer… Read More Whether the ‘Kaun Banega Crorepati’ (“KBC”) programe was unfair Trade Practice ? No Star India (P) Ltd., the Appellant in C.A. No. 6597/2008 (hereinafter “Star India”) used to broadcast the programme ‘Kaun Banega Crorepati’ (“KBC”) between 22.1.2007 and 19.4.2007. The programme was sponsored by Bharti Airtel Limited, the Appellant in C.A. No. 6645/2008 (hereinafter “Airtel”), amongst others. During the telecast of this programme, a contest called ‘Har Seat Hot Seat’ (“HSHS contest”) was conducted, in which the viewers of KBC were invited to participate. An objectivetype question with four possible answers was displayed on the screen during each episode, and viewers who wished to participate were required to send in the correct answer, inter alia through SMS services, offered by Airtel, MTNL and BSNL, to a specified number. The winner for each episode was randomly selected out of the persons who had sent in the correct answers, and awarded a prize money of Rs. 2 lakhs. There was no entry fee for the HSHS contest. However, it is not disputed that participants in the HSHS contest were required to pay Rs. 2.40 per SMS message to Airtel, which was higher than the normal rate for SMSes. Hence, Respondent No. 1, which is a consumer society (hereinafter “the complainant”), filed a complaint before the National Commission against Star India and Airtel (but not against BSNL and MTNL), contending that they were committing an ‘unfair trade practice’ within the meaning of Section 2(1)(r)(3)(a) of the Consumer Protection Act, 1986 (“the 1986 Act”). It was alleged that the Appellants had created a false impression in viewers’ minds that participation in the HSHS contest was free of cost, whereas the cost of organizing the contest as well the prize money was being reimbursed from the increased rate of SMS charges, and the profits from these charges were being shared by Airtel with Star India. Further, it was alleged that an unfair trade practice had also been committed inasmuch as the contest was essentially a lottery as the questions were simple, and the winners were finally picked by random selection. The purpose of this contest was to promote the business interests of the Appellants by increasing the viewership and Television Rating Points (TRP’s) of the KBC programme, and thus to command higher advertising charges, and also by increasing the revenue earned from SMS messages. Hence the Appellants were culpable for conducting a lotterylike contest to promote their business interests under Section 2(1)(r)(3)(b) of the 1986 Act. Apex court held that we find that the complainant has clearly failed to discharge the burden to prove that the prize money was paid out of SMS revenue, and its averments on this aspect appear to be based on pure conjecture and surmise. We are of the view that there is no basis to conclude that the prize money for the HSHS contest was paid directly out of the SMS revenue earned by Airtel, or that Airtel and Star India had colluded to increase the SMS rates so as to finance the prize money and share the SMS revenue, and the finding of the commission of an “unfair trade practice” rendered by the National Commission on this basis is liable to be set aside.
REPORTABLEIN THE SUPREME COURT OF INDIACIVIL APPELLATE JURISDICTIONCIVIL APPEAL NO(s). 593594 OF 2020(arising out of SLP (Civil) No(s). 3037130372 of 2017)M/S. GRANULES INDIA LTD. …APPELLANT(S)VERSUSUNION OF INDIA AND OTHERS …RESPONDENT(S)JUDGMENTNAVIN SINHA, J.Leave granted. The appellant is aggrieved by orders dated 07.12.2016 and14.06.2017, rejecting the writ petition as also the review applicationarising from the same. The… Read More When the document is in the custody of a party – it has to produce the same without relying on the principle of burden of proof . The State is the largest litigant as often noted. It stands in a category apart having a solemn and constitutional duty to assist the court in dispensation of justice. The State cannot behave like a private litigant and rely on abstract theories of the burden of proof. National Insurance Co. Ltd. vs. Jugal Kishore, (1988) 1 SCC 626, observing as follows: “10. Before parting with the case, we consider it necessary to refer to the attitude often adopted by the Insurance Companies, as was adopted even in this case, of not filing a copy of the policy before the Tribunal and even before the High Court in appeal. In this connection what is of significance is that the claimants for compensation under the Act are invariably not possessed of either the policy or a copy thereof. This Court has consistently emphasised that it is the duty of the party which is in possession of a document which would be helpful in doing justice in the cause to produce the said document and such party should not be permitted to take shelter behind the abstract doctrine of burden of proof. This duty is greater in the case of instrumentalities of the State such as the appellant who are under an obligation to act fairly. In many cases even the owner of the vehicle for reasons known to him does not choose to produce the policy or a copy thereof. We accordingly wish to emphasise that in all such cases where the Insurance Company concerned wishes to take a defence in a claim petition that its liability is not in excess of the statutory liability it should file a copy of the insurance policy along with its defence. Even in the instant case had it been done so at the appropriate stage necessity of approaching this Court in civil appeal would in all probability have been avoided. Filing a copy of the policy, therefore, not only cuts short avoidable litigation but also helps the court in doing justice between the parties. The obligation on the part of the State or its instrumentalities to act fairly can never be overemphasised.”
Contempt Petition (Civil)Nos.453-454 of 2012 in Civil Appeal Nos. 2504-2505 of 2012Bajrang Lal Sharma vs. C.K. Mathew and ors.1ReportableIN THE SUPREME COURT OF INDIAINHERENT JURISDICTIONCONTEMPT PETITION (CIVIL)Nos.453-454 OF 2012INCIVIL APPEAL NOS. 2504-2505 OF 2012BAJRANG LAL SHARMA …PETITIONERVERSUSC.K. MATHEW AND ORS. …ALLEGED CONTEMNORS/RESPONDENTSJ U D G M E N TUday Umesh Lalit, J. These Contempt Petitions… Read More Contempt Petition = When the directions were to act in terms of the report of Bhatnagar Committee – the basic foundation of contempt petition projecting issuance of Notification does not survive as the matter was pending before High Court for consideration – when all these issues need to be gone into in a substantive challenge and will be beyond the scope of contempt jurisdiction – and as such contempt petition was closed. As a matter of fact, the directions issued by this Court in para 48 were clear that the State and its authorities were to act in terms of the report of the Bhatnagar Committee in accordance with the decisions in M. Nagraj and Suraj Bhan Meena1 . The basic foundation of the present contempt petitions projecting the issuance of Notification dated 11.09.2011 to be in contempt of the directions issued by this Court, thus, does not survive. In any case, challenge to said Notification and the report of the Bhatnagar Committee is still pending consideration before the High Court where the correctness and validity thereof will be gone into in accordance with law. With the decision of this Court in Jarnail Singh the matter also stands on a slightly modified footing. As concluded by this Court in Jarnail Singh the conclusion in M. Nagraj that the State has to collect quantifiable data showing backwardness of SC/ST, being contrary to the 9 Judges Bench decision in Indra Sawhney , was held to be invalid. The challenge to the recommendations given by the Bhatnagar Committee and the quantifiable data adverted to by the Committee will therefore have to be seen by the High Court in the light of the directions issued by this Court in Jarnail Singh. It is, thus, clear that all these issues need to be gone into in a substantive challenge and will be beyond the scope of contempt jurisdiction.
REPORTABLEIN THE HON’BLE SUPREME COURT OF INDIACRIMINAL APPELLATE JURISDICTIONCRIMINAL APPEAL NO. 1813 OF 2017DULESHWAR & ANR. …APPELLANT(S)VS.THE STATE OF M.P. (NOW CHHATTISGARH) …RESPONDENT(S)WITHCRIMINAL APPEAL NO. 1815 OF 2017ANDCRIMINAL APPEAL NO. 1814 of 2017JUDGMENTDinesh Maheshwari, J.Introductory with brief outline These three appeals are directed against the common judgment andorder dated 12.09.2014, as passed by the High… Read More In the absence of Evidence of his presence and participation in the offence – mere recovery of blood stained lathi at the instance of Accused , not held him as Guilty of offence. Even though alibi was not accepted – lack of corboration of Accused participation in the offence along with other accused as only one witness stated accused name in the re examination – even though non blood stained lathi was recovered at the instance of this accused – Still he is entitled for benifit of doubt. So far as the appellant Khemuram (A-8) is concerned, we find it difficult to endorse his conviction. Though one name ‘Hemu’ has occurred in the reexamination of PW-5 Prahlad Yadav but not specifically the name of this accused Khemuram8 . The prosecution has not taken any steps to clarify if there was any discrepancy in regard to the statement of this witness PW-5. No other eye-witness has named this accused Khemuram as one of the members of the mob that assaulted the deceased Govind Singh nor any other act of this accused has come on record which could connect him with the assembly in question and the place of incident. Though the lathi recovered at the instance of this accused (vide Ex. P/19) allegedly carried blood-stains but his conviction cannot be based on this recovery alone. For want of cogent and convincing evidence about his presence at the scene of crime and his participation in assaulting the deceased, in our view, this accused Khemuram (A-8) is entitled to the benefit of doubt and the findings in his relation cannot be sustained. As regards the appellant Lakhan (A-13), again, it is noticed that PW-5 Prahlad Yadav stated his name in the re-examination but then, no other eyewitness named him as one of the members of the mob that assaulted the deceased Govind Singh nor any other act of this accused has come on record which could connect him with the assembly in question and the place of incident. Thus, there had been want of corroboration of the statement of PW-5 by other witnesses in regard to the involvement of this accused Lakhan. The alleged weapon lathi said to have been recovered at the instance of this accused (vide Ex. P/26) is also not shown carrying blood-stains. Though this accused also led in defence evidence in the form of DW-3 Barsan who deposed that this accused was in other village Bhururenga and left his village on 15.10.1998 at about 5.00-5.30 and that the distance of the two villages was about 15 kms but then, there had been discrepancies regarding the dates and time in his testimony and no such specific plea of alibi was taken by this accused in his defence version. However, even if the defence evidence in his regard is not accepted, as noticed, a reasonable doubt still remains if this accused Lakhan was a part of the assembly in question. In the given circumstances, we are of the view that this accused Lakhan (A-13) is also entitled to benefit of doubt. However, in our view, the prosecution has failed to prove its case beyond reasonable doubt against the accused-appellants Khemuram (A-8) and Lakhan (A-13), who deserve to be acquitted on benefit of doubt.
When the Accused not denied his signature on the recovery memo or alleged that his signature was obtained by threat, duress or coercion – the absence of any FSL report may at best be considered as Defective Investigation. The pistol was recovered on the confession of the appellant from under the earth in the courtyard,… Read More When the Accused not denied his signature on the recovery memo or alleged that his signature was obtained by threat, duress or coercion – the absence of any FSL report may at best be considered as Defective Investigation. The pistol was recovered on the confession of the appellant from under the earth in the courtyard, the earth was freshly dug. The High Court disbelieved the recovery because the independent witness PW2 went hostile. But the High Court missed the reasoning by the trial court that PW2 did not deny his signature on the recovery memo nor did he state that his signature was obtained by threat, duress or coercion. The absence of any FSL report may at best be defective investigation.