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The Supreme Court on Wednesday (May 08) held that the evidence of a prosecution witness cannot be rejected in toto merely because the prosecution chose to treat him as hostile and cross-examined him.Affirming read more
The Supreme Court on Wednesday (May 08) held that the evidence of a prosecution witness cannot be rejected in toto merely because the prosecution chose to treat him as hostile and cross-examined him.
Affirming the decision of the High Court and Trial Court, the bench comprising Justices BR Gavai and Sandeep Mehta declined to aside the conviction of the accused merely because the prosecution witness didn't support the prosecution's case in their cross-examination.
By placing reliance on the case of C. Muniappan and Others v. State of Tamil Nadu, the court stated that the evidence of such prosecution witnesses cannot be treated as effaced or washed off the record altogether but the same can be accepted to the extent their version is found to be dependable on a scrutiny thereof.
“when the evidence of the victim as well as prosecution witnesses is tested with the FIR, the statement recorded under Section 164 Cr.P.C. and the evidence of the Medical Expert (PW-8), we find that there is sufficient corroboration to the version given by the prosecutrix in her examination-in-chief.”, the court said.
it appears that, on account of a long gap between the examination-in-chief and cross examination, the witnesses were won over by the accused and they resiled from the version as deposed in the examination-in-chief which fully incriminates the accused. However, when the evidence of the victim as well as her mother (PW-2) and aunt (PW-3) is tested with the FIR, the statement recorded under Section 164 CrPC and the evidence of the Medical Expert (PW-8), we find that there is sufficient corroboration to the version given by the prosecutrix in her examination-in-chief.
Insofar as the reliance placed by the learned counsel for
the appellant on the judgment of this Court in the case of
Rai Sandeep alias Deepu (supra) is concerned, the said
case can be distinguished, inasmuch as in the said case
except a minor abrasion on the right side of the neck below
jaw, there were no other injuries on the private part of the
prosecutrix, although it was allegedly a forcible gang rape.
As such, the said judgment would not be applicable in the
present case.
The court upheld the conviction of the accused based on the testimony of the prosecutrix/victim after her testimony in the examination in chief led to sufficient corroboration with the Section 164 Cr.P.C. statements and the expert evidence.
Accordingly, the appeal was dismissed.
Case Title: SELVAMANI VERSUS THE STATE REP. BY THE INSPECTOR OF POLICE
The Supreme Court said that trial judges should take a proactive role instead of acting as "mere tape recorders" recording witness statements. If there is any lapse by the prosecutor, then the judge should read more
The Supreme Court said that trial judges should take a proactive role instead of acting as "mere tape recorders" recording witness statements. If there is any lapse by the prosecutor, then the judge should intervene and ask necessary questions to the witness to elicit relevant information.
"It is the duty of the court to arrive at the truth and subserve the ends of justice. The courts have to take a participatory role in the trial and not act as mere tape recorders to record whatever is being stated by the witnesses. The judge has to monitor the proceedings in aid of justice," observed the bench comprising Chief Justice of India DY Chandrachud, Justice JB Pardiwal and Manoj Misra.
The Court noted that after the witness was declared hostile, all that the public prosecutor did was to put few suggestions to her for the purposes of cross-examination. Even proper contradictions were not brought on record.
"The judge has to monitor the proceedings in aid of justice. Even if the prosecutor is remiss or lethargic in some ways, the court should control the proceedings effectively so that the ultimate objective that is the truth is arrived at. The court must be conscious of serious pitfalls and dereliction of duty on the part of the prosecuting agency. Upon failure of the prosecuting agency showing indifference or adopting an attitude of aloofness, the trial judge must exercise the vast powers conferred under Section 165 of the Evidence Act and Section 311 of the Cr.P.C. respectively to elicit all the necessary materials by playing an active role in the evidence collecting process," the judgment stated.
Supreme Court observed that the claimant of an easementary right wouldn't be entitled to claim the 'easementary right by necessity' for enjoying the 'Dominant Heritage' (the property owned by the claimant) read more
Supreme Court observed that the claimant of an easementary right wouldn't be entitled to claim the 'easementary right by necessity' for enjoying the 'Dominant Heritage' (the property owned by the claimant) when there exists an alternative way to access the 'Dominant Heritage' apart from the way over which the easementary rights were claimed to access the Dominant Heritage.
“The easementary right by necessity could be acquired only in accordance with Section 13 of the Indian Easement Act which provides that such easementary right would arise if it is necessary for enjoying the Dominant Heritage. In the instant case, findings have been returned not only by the appellate courts but even by the trial court that there is an alternative way to access the Dominant Heritage, which may be a little far away or longer which demolishes the easement of necessity...Thus, the Gala's (claimant) are not entitled to any easementary right by necessity upon the disputed rasta.”, the Bench Comprising Justices Pankaj Mithal and Prashant Kumar Mishra said.
Dominant Heritage is the land that is to be enjoyed by the beneficiary, whereas the land on which the easement is claimed is called Servient Heritage.
Section 13 of the Indian Easements Act, 1882 states about easementary rights by necessity.
The Judgment authored by Justice Pankaj Mithal stated that the easementary right by necessity over the 'servient heritage' would arise if there's no alternative way to access the Dominant Heritage.
After finding that the claimant had an alternative way to access the dominant heritage apart from the subservient heritage, the court denied any easementary right by necessity upon the disputed rasta to the claimant.
The Supreme Court on Monday (March 11) observed that the offence of sexual harassment committed within the confines of a room or a house (under the POCSO Act) requires closer scrutiny by the courts while read more
The Supreme Court on Monday (March 11) observed that the offence of sexual harassment committed within the confines of a room or a house (under the POCSO Act) requires closer scrutiny by the courts while deciding the conviction of the accused solely based on the victim's statements.
Reversing the concurrent findings of the trial court and the Madras High Court, the Supreme Court acquitted a teacher who was accused of sexually harassing his 13-year-old girl student.
It was the case of the prosecution that the accused/teacher in between the classes gave chocolates and flowers to the victim/student. When the victim resisted, the teacher forcefully gave the flowers by twisting her hands. Moreover, the prosecution also alleged that the accused/teacher showed his sexual intent towards the victim by asking her friend over call to send the victim to the Physical Education Training room.
The trial court convicted the accused/teacher and sentenced him to suffer three years of rigorous imprisonment with a fine of Rs. 30,000/-, and the High Court upheld the same. Following this, the accused/teacher preferred the plea before the Supreme Court.
Before the Supreme Court, it was contended by the appellant/teacher that both the Trial Court and High Court committed error in finding the appellant guilty of sexually harassing the victim because apart from the victim herself, no testimony of other students was placed by the prosecution to prove that the accused had given flowers to the victim forcefully in between the class.
Finding force in the submissions made by the accused/teacher, the Supreme Court noted that the prosecution's case has been marked by lacklustre efforts, revealing a poorly executed endeavour that gives rise to substantial doubts regarding the integrity of the case.
“The material contradictions apparent in the depositions of prosecution witnesses, including the victim, significantly undermine the credibility of the prosecution version. These inconsistencies in the prosecution's narrative, render it considerably doubtful”, the court observed.
Conviction Cannot Be Sustained Based On Unreliable Sole Testimony of Victim
The Supreme Court referred to Ganesan v. State, where it held that the sole testimony of the victim if found reliable and trustworthy, requires no corroboration and may be sufficient to invite conviction of the accused.
However, while referring to its precedents, the Supreme Court stated if the testimony of the victim suffers from contradictions or can't be relied upon, then the courts should strive to find out the true genesis of the incident.
“What flows from the aforesaid decisions is that in cases where witnesses are neither wholly reliable nor wholly unreliable, the Court should strive to find out the true genesis of the incident. While a victim's testimony is usually enough for sexual offence cases, an unreliable or insufficient account from the prosecutrix, marked by identified flaws and gaps, could make it difficult for a conviction to be recorded.”, the court observed.
“When considering the evidence of a victim subjected to a sexual offence, the Court does not necessarily demand an almost accurate account of the incident. If the Court deems such evidence credible and free from doubt, there is hardly any insistence on corroboration of that version.”, the court added.
However, the Supreme Court didn't rely on the sole testimony of the victim after finding apparent contradictions in the victim's statements specifically the statement recorded in FIR and Section 164 Cr.P.C. statements.
“While we might have chosen to overlook other contradictions and solely relied on the victim's account, considering her as a 'sterling witness', her version appears muddled and prevaricated, much less coherent. It is precisely these inconsistencies and contradictions, which are material, that compel us to reject the case set up by the prosecution before the Special Court with which the High Court concurred adopting a flawed approach.”, the court observed.
Here, the Court noted that only one student was examined as a witness to prove that the accused had given flowers and chocolates to the victim. But she turned hostile during the trial. Also, nowhere in the deposition has the victim said that she was pinched by the accused. However,t he High Court held that the accused perpetrated physical attack on the victim by pinching her. The omissions of the prosecution to examine the headmaster of the school and the brother of the victim, who was studying in the same school, were also cited by the Court as glaring mistakes.
"While the actions attributed to A-1, as sought to be demonstrated by the prosecution, may fall within the purview of 'sexual harassment' under section 11 of the POCSO Act, the evidence in this case has been marred by inadequacies from the outset, evident in contradictions within statements and testimonies. The evidence led leaves reasonable suspicion as to whether A-1 was actually involved in any criminal act," the Court stated.
Moreover, the following observation of the court is important to be mentioned here:
"At the same time, it is axiomatic that reputation is earned by a teacher upon rendering service over the years and an accusation like the present would remain as an indelible mark marring his entire future life. Care has, therefore, to be taken so that his right to live a life of dignity and personal liberty are not put to jeopardy on the basis of half-baked evidence."
Based on the abovementioned observations, the Supreme Court reversed the accused/teacher's conviction to acquittal by giving the benefit of doubt due to missing links in the present case to convict the accused.
Case Title: NIRMAL PREMKUMAR & ANR. VERSUS STATE REP. BY INSPECTOR OF POLICE
In a recent ruling, the Supreme Court reiterated that the burden of proving applicability of exclusionary clauses in insurance contracts is on the insurer and such clauses must be interpreted strictly read more
In a recent ruling, the Supreme Court reiterated that the burden of proving applicability of exclusionary clauses in insurance contracts is on the insurer and such clauses must be interpreted strictly against the insurer, as they may completely exempt the insurer of its liability.
The bench of Justices PS Narasimha and Aravind Kumar was dealing with an insurance company's appeal against an NCDRC order, which directed it to pay the insured-joint venture company after a bridge that was contracted for construction to the latter company collapsed. Taking note of the exclusionary clause in the insurance policy (which excluded cover for factors including faulty design), the court set aside the NCDRC order and observed,
The National Highway Authority of India (NHAI) entered into a contract with a joint venture company ("JV") for the design, construction and maintenance of a cable-stayed bridge across Chambal River in Kota, Rajasthan. In respect of the same, the appellant-insurance company issued an all-risk insurance policy, which covered the entire project amount.
In 2009, while the project was in progress, a part of the bridge collapsed, resulting in the death of 48 workmen. An Expert Committee was constituted by the Union government to investigate the cause of the collapse. Meanwhile, NHAI informed the appellant about the incident, requesting deputation of a surveyor to assess the damage caused, and seeking indemnification of the loss.
In 2011, the appellant's surveyor submitted a report, assessing net loss @ Rs.39,09,92,828/-. It recommended rejection of the insurance claim on the ground that the JV violated the conditions of the insurance policy. When the appellant repudiated the claim based on the reports, the JV requested re-consideration. It relied on some independent reports to urge that its design of the bridge was not faulty.
Proceedings before NCDRC
Two years after rejection of its claim, in 2019, the JV filed a Consumer Complaint before the National Consumer Disputes Redressal Commission (NCDRC) making allegations of 'deficiency in service' and unfair trade practice against the appellant.
The NCDRC held in the JV's favor, observing that the Expert Committee report was 'inconclusive' and based on the independent reports, there was no defect in the bridge design. The Commission also factored in the fact that NHAI allowed the JV to complete the remaining contract work.
NCDRC directed the appellant to pay the JV Rs.39,09,92,828/- with interest from the first date of repudiation (in 2011). Oddly, an undated addendum to the order modified the payable amount to Rs. 151,59,94,542/-. Aggrieved, the appellant moved the Supreme Court.
Observations by Supreme Court
At the outset, the Court expressed surprise at the NCDRC's addendum, which enhanced the amount payable from Rs.39,09,92,828/- to Rs. 151,59,94,542/- without hearing the parties. It was noted that the JV itself had restricted its case to Rs.39,09,92,828/-. As the JV's counsel maintained that the claim was confined to Rs.39,09,92,828/-, the court did not go into the issue further.
Moving on, the court analyzed the issue of exclusionary clauses in contracts, as the policy in the present case excluded cover in case there was damage due to faulty design, for cost of replacement, repair or rectification of defective material and/or workmanship, for cost of rectification/correction of any error during construction, etc.
Referring to the decision in Texco Marketing P. Ltd. v. TATA AIG General Insurance Company Ltd., the court reiterated that the burden of proving applicability of an exclusionary clause is on the insurer. Although, it must not be interpreted in a manner that conflicts with the main intention of the insurance.
"It is, therefore, the duty of the insurer to plead and lead cogent evidence to establish the application of such a clause. The evidence must unequivocally establish that the event sought to be excluded is specifically covered by the exclusionary clause."
It was held that the appellant sufficiently discharged the burden on it, by relying on the reports of the Expert Committee and the surveyor. The independent reports relied on by the JV, the court observed, were unexhibited documents and none of the experts were examined as witness before NCDRC. Moreover, these were theoretical in nature and not based on site-inspection (unlike the surveyor's).
Insofar as the NCDRC's finding that the Expert Committee report was inconclusive, the court referred to certain discrepancies between the approved drawing plans and the actual construction illustrated in the report. Notably, the report spoke of changes in sequence of construction without consulting/informing the design consultants of the project and changes brought about without proper technical review.
As per the report, "a combination of factors such as lack of stability and robustness in the structure, shortfall in design, lack of quality workmanship have all contributed to the collapse...the primary responsibility for the collapse lies with the contractor, M/s Hyundai and Gammon (JV) for allowing the structure to reach a vulnerable stage without taking adequate precautions with respect to stability and robustness of the partially completed structure and the shortfall in the design".
So far as the surveyor's report, the court noted that it was an evidence tendered by the appellant, which was not treated as unreliable by NCDRC. Pertinently, the surveyor report noted - (i) The sequence of operations in the construction of the Bridge were changed in actual construction, and (ii) Change in allocation of works amongst the JV Partners played a key role in the quality of workmanship.
Lastly, the fact that NHAI permitted the JV to complete the remaining work did not weigh with the court. It was noted that the continuation could have been due to various reasons.
"Even if the NHAI's decision to continue is taken to be a valid economic decision, that by itself cannot be a reason for not applying the applicable clause of the contract if such applicability is otherwise proved by cogent evidence", the court said.
Conclusion
In view of the above, the court allowed the insurance company's appeal and set aside the NCDRC's order.
Case Title: United India Insurance Co. Ltd. Versus M/s Hyundai Engineering & Construction Co. Ltd. & Ors., Civil Appeal No. 1496 of 2023
The Supreme Court on Monday (March 18) overturned the conviction of the accused while observing that conviction cannot be sustained based on the testimony of the 'injured witness' who happens to be an read more
The Supreme Court on Monday (March 18) overturned the conviction of the accused while observing that conviction cannot be sustained based on the testimony of the 'injured witness' who happens to be an 'interested witness' in the outcome of the case.
Reversing the findings of the High Court and Trial Court which has convicted the accused, the Bench Comprising Justices Hrishikesh Roy and Sanjay Karol observed that although the evidence of an injured witness is considered to be on a higher pedestal than that of a witness simpliciter yet the courts need to strike a balance between the testimony provided by the injured witness who happens to be also interested in the outcome of the case.
“This Court has to strike a balance between the testimony of the injured witness and that of an interested witness.”, the court clarified.
The prosecution case was based on the two prosecution witnesses' testimony, who according to the prosecution were injured by the Appellants while attacking the deceased persons. The prosecution stated that the testimonies supplied by the witnesses' is sufficient to prove the guilt of the accused as the evidentiary value of the 'injured witness' is higher than that of other witnesses.
“There is a direct statement by PW-1 that D-1 was his relative, i.e., son of his paternal uncle. D-2 was a relative of the owner of the wine shop, who, according to him, was A-1, but in another instance, he states that A-1 was only a worker.”, the court said.
“It is hard to conceive how the Trial Court concluded that despite being the first cousin of D-1 (Deceased) and himself a person injured in the incident, PW-1 was not an interested witness.”, the court questioned the trial court's decision for not treating PW-1 as an interested witness.
Further, the court noted that the prosecution must have also examined the independent witnesses, citing that if the incident occurred at a crowded place, then how it's possible that there were no independent witnesses available at the crime scene?
“He (PW1) has also deposed that there were about 50 persons at the scene of the crime, then, how has the non-examination of independent witness been countenanced by the prosecution and “approved” by the Courts below, is something that escapes us, or rather confounds us.”, the court said.
Not only this, the court disbelieved the entire investigation carried out by the investigating officer by stating that such a process of investigation is not sought from the IO, whole role is that of the backbone of the entire criminal proceeding in respect of the particular offences he is charged with investigating.
“A perusal of his testimony reveals certain problematic statements. Nowhere has it come on record as to how the investigation reached the bus stand from where A-2 was arrested – who informed the authorities about A-2's movement by bus? Further, he has deposed that he made two visits to the scene of the crime and that he also examined several witnesses. Then how is there a striking lack of independent witnesses to lend credence to the prosecution's version of events? He does not know where D-1 had expired. How? He also did not conduct any scientific investigation at the spot of crime. Such an investigation carried out most casually and callously is sought to be made the basis by the police in seeking the conviction of the accused.”, the court said.
Ultimately, the court allowed the appeal and acquitted the Appellants on account of highlighting several lapses on the part of the prosecution in proving the case against the appellant beyond reasonable doubt.
“Various lapses such as these cumulatively affect the overall sanctity of the prosecution case, making it fall short of the threshold of beyond reasonable doubt. It is in such circumstances, on analysis of the record, that we are unable to sustain the conviction handed down by the Courts below to A-1 and A-2. The injured witnesses and the Investigation Officer in their testimony together are not inspiring confidence, and in our own estimation the prosecution case stands shaken beyond a point to which no conviction resting thereupon can be said to be just in the eyes of law.”
Case Title: PERIYASAMY VERSUS THE STATE REP. BY THE INSPECTOR OF POLICE
The Supreme Court on Tuesday (April 2) reiterated that in the event of the possibility of two views, if the trial court acquits the accused, then it would not be permissible for the High Court to interfere read more
The Supreme Court on Tuesday (April 2) reiterated that in the event of the possibility of two views, if the trial court acquits the accused, then it would not be permissible for the High Court to interfere with the trial court's order of acquittal unless the view taken by the trial court was perverse.
“In any case, even if two views are possible and the trial Judge found the other view to be more probable, an interference would not have been warranted by the High Court, unless the view taken by the learned trial Judge was a perverse or impossible view.”, the Bench Comprising Justices BR Gavai and Sandeep Mehta said.
“We are compelled to say that the findings of the High Court are totally based on conjectures and surmises. Though the High Court has referred to the law laid down by this Court with regard to the scope of interference in an appeal against acquittal, the High Court has totally misapplied the same and a very well-reasoned judgment based upon the correct appreciation of evidence by the trial Court has been reversed by the High Court, only on the basis of conjectures and surmises.”, the court said.
The accused was acquitted by the trial court based on the material discrepancies found in the evidence placed on record by the prosecution. The trial court noted that the prosecution failed to prove the guilt of the accused/appellant beyond the reasonable doubt.
“It is settled law that the suspicion, however strong it may be, cannot take the place of proof beyond reasonable doubt. An accused cannot be convicted on the ground of suspicion, no matter how strong it is. An accused is presumed to be innocent unless proved guilty beyond a reasonable doubt.”, the court added.
Based on the above premise, after no perversity or impossibility could be found in the approach adopted by the learned trial Judge, the Supreme Court while reversing the High Court's decision acquitted the accused.
Case Title: BALLU @ BALRAM @ BALMUKUND AND ANOTHER VERSUS THE STATE OF MADHYA PRADESH
The Supreme Court on Monday (March 11) observed that the offence of sexual harassment committed within the confines of a room or a house (under the POCSO Act) requires closer scrutiny by the courts while read more
The Supreme Court on Monday (March 11) observed that the offence of sexual harassment committed within the confines of a room or a house (under the POCSO Act) requires closer scrutiny by the courts while deciding the conviction of the accused solely based on the victim's statements.
Reversing the concurrent findings of the trial court and the Madras High Court, the Supreme Court acquitted a teacher who was accused of sexually harassing his 13-year-old girl student.
It was the case of the prosecution that the accused/teacher in between the classes gave chocolates and flowers to the victim/student. When the victim resisted, the teacher forcefully gave the flowers by twisting her hands. Moreover, the prosecution also alleged that the accused/teacher showed his sexual intent towards the victim by asking her friend over call to send the victim to the Physical Education Training room.
The trial court convicted the accused/teacher and sentenced him to suffer three years of rigorous imprisonment with a fine of Rs. 30,000/-, and the High Court upheld the same. Following this, the accused/teacher preferred the plea before the Supreme Court.
Before the Supreme Court, it was contended by the appellant/teacher that both the Trial Court and High Court committed error in finding the appellant guilty of sexually harassing the victim because apart from the victim herself, no testimony of other students was placed by the prosecution to prove that the accused had given flowers to the victim forcefully in between the class.
Finding force in the submissions made by the accused/teacher, the Supreme Court noted that the prosecution's case has been marked by lacklustre efforts, revealing a poorly executed endeavour that gives rise to substantial doubts regarding the integrity of the case.
“The material contradictions apparent in the depositions of prosecution witnesses, including the victim, significantly undermine the credibility of the prosecution version. These inconsistencies in the prosecution's narrative, render it considerably doubtful”, the court observed.
Conviction Cannot Be Sustained Based On Unreliable Sole Testimony of Victim
The Supreme Court referred to Ganesan v. State, where it held that the sole testimony of the victim if found reliable and trustworthy, requires no corroboration and may be sufficient to invite conviction of the accused.
However, while referring to its precedents, the Supreme Court stated if the testimony of the victim suffers from contradictions or can't be relied upon, then the courts should strive to find out the true genesis of the incident.
“What flows from the aforesaid decisions is that in cases where witnesses are neither wholly reliable nor wholly unreliable, the Court should strive to find out the true genesis of the incident. While a victim's testimony is usually enough for sexual offence cases, an unreliable or insufficient account from the prosecutrix, marked by identified flaws and gaps, could make it difficult for a conviction to be recorded.”, the court observed.
“When considering the evidence of a victim subjected to a sexual offence, the Court does not necessarily demand an almost accurate account of the incident. If the Court deems such evidence credible and free from doubt, there is hardly any insistence on corroboration of that version.”, the court added.
However, the Supreme Court didn't rely on the sole testimony of the victim after finding apparent contradictions in the victim's statements specifically the statement recorded in FIR and Section 164 Cr.P.C. statements.
“While we might have chosen to overlook other contradictions and solely relied on the victim's account, considering her as a 'sterling witness', her version appears muddled and prevaricated, much less coherent. It is precisely these inconsistencies and contradictions, which are material, that compel us to reject the case set up by the prosecution before the Special Court with which the High Court concurred adopting a flawed approach.”, the court observed.
Here, the Court noted that only one student was examined as a witness to prove that the accused had given flowers and chocolates to the victim. But she turned hostile during the trial. Also, nowhere in the deposition has the victim said that she was pinched by the accused. However,t he High Court held that the accused perpetrated physical attack on the victim by pinching her. The omissions of the prosecution to examine the headmaster of the school and the brother of the victim, who was studying in the same school, were also cited by the Court as glaring mistakes.
"While the actions attributed to A-1, as sought to be demonstrated by the prosecution, may fall within the purview of 'sexual harassment' under section 11 of the POCSO Act, the evidence in this case has been marred by inadequacies from the outset, evident in contradictions within statements and testimonies. The evidence led leaves reasonable suspicion as to whether A-1 was actually involved in any criminal act," the Court stated.
Moreover, the following observation of the court is important to be mentioned here:
"At the same time, it is axiomatic that reputation is earned by a teacher upon rendering service over the years and an accusation like the present would remain as an indelible mark marring his entire future life. Care has, therefore, to be taken so that his right to live a life of dignity and personal liberty are not put to jeopardy on the basis of half-baked evidence."
Based on the abovementioned observations, the Supreme Court reversed the accused/teacher's conviction to acquittal by giving the benefit of doubt due to missing links in the present case to convict the accused.
Counsel For Petitioner(s) Ms. E. R. Sumathy, AOR
Counsels For Respondent(s) Mr. V. Krishnamurthy, Sr. A.A.G. Mr. D. Kumanan, AOR Mr. Sheikh F. Kalia, Adv. Mrs. Deepa. S, Adv. Mr. Veshal Tyagi, Adv.
Case Title: NIRMAL PREMKUMAR & ANR. VERSUS STATE REP. BY INSPECTOR OF POLICE
The Supreme Court on March 19, in a recent judgment held that exoneration in Income Tax proceedings by itself would not become a valid ground for the discharge of an accused under the provisions of The read more
The Supreme Court on March 19, in a recent judgment held that exoneration in Income Tax proceedings by itself would not become a valid ground for the discharge of an accused under the provisions of The Prevention Of Corruption Act, 1988 (PCA).
The bench comprising Justice Vikram Nath and Justice KV Viswanathan was sitting in appeal against an order of the Delhi High Court which refused the discharge of offences under PCA. The bench observed that an Order under the Income Tax Act favouring the accused would not be conclusive proof of 'lawfulness' of 'source of income'. The court in its decision dwells into the settled position of law as held in the Case of State of Karnataka v. Selvi J. Jayalalitha & Ors. to understand the probative nature of such orders passed by the income tax tribunals and authorities from the lens of criminal prosecution.
On Facts
The facts of the present case are that the appellant R.C. Sabharwal (an Architect serving the New Delhi Municipal Corporation), Puneet Sabharwal's father in the case, possessed assets worth Rs. 2,05,63,341. This amount significantly overshadowed his declared income of Rs. 1,23,18,091. The allegations involving his son, Puneet Sabharwal, revolve around the latter securing INR 79 lakhs through the redemption of Special Bearer Bonds. This act contributed to the crime, as R.C. Sabharwal managed to purchase properties in the name of entities such as the M/s Morni Devi Brij Lal Trust and M/s Morni Merchants, among others which affirmed Puneet Sabharwal as the sole beneficiary.
The Appellate Tribunal broadly held that (1) Appellant R.C. Sabharwal had no obligation to explain the source of investment of the founders of the trust Smt. Morni Devi and Sh. Brij Lal; (2) Trust had been paying its share of the income since its existence and there was no evidence to prove that the appellants were benami owners of the trust; (3) since Morni Devi Brij Lal Trust was a separate entity and since the appellant Puneet Sabharwal was running its business, its income could not be added in the hands of the appellant R.C. Sabharwal
It was in light of the above developments that the Order framing charges by the Special Judge were challenged before the High Court in a writ petition. Relying upon the finding of the ITAT, it was contended that there existed a case of discharge of the appellants. Since the reopening proceedings were based on the search done by CBI, there was no valid ground to proceed with the trial. With regards to appellant Puneet Sabharwal, it was argued since he was a minor for a large portion of the check period and therefore could not be made an accused.
Refusing to discharge the appellants, the Delhi High Court enunciated the following reasons : (1) Puneet Sabharwal being a minor in the larger period of the check would not undermine the fact he was legally an adult for 7 years of the time frame concerning the crime; (2) Immunities under S. 3(2) of Special Bearer Bonds (Immunities and Exemptions) Act, 1981 do not cover charges framed under the PCA; (3) In State of Karnataka v. Selvi J. Jayalalitha & Ors. (2017) 6 SCC 263 the Supreme Court held that IT orders are apropos tax liability on income and would not mandatorily establish the lawfulness of the sources of income.
The matter then traversed before the Apex Court on the question of whether the Order of the ITAT be relied upon for quashing the proceedings under PCA.
Arguments By The Appellant
Senior Advocate Mr. Mukul Rohatgi and Mr. Siddharth Agarwal, for the appellants, argued on the following points : (1) Throughout the twenty-year review period, Puneet Sabharwal was underage for all but seven years. This fact raises logical doubts about his ability to conspire with his father during that time, suggesting a significant misuse of legal proceedings; (2) The High Court overlooked the exoneration of the appellant's father by the ITAT and rendered a specific finding his father did not own trust properties as a benami; (3) The High Court misapplied the decision in Selvi Jayalalitha as in the present case the reliance was not on IT returns but returns subjected to an inquisition at the behest of the CBI; (4) Placing reliance on Radheshyam Kejriwal v. State of West Bengal & Anr., (2011) 3 SCC 581, it was argued that exoneration on merits in civil adjudication would disallow criminal trial on same set of facts.
Arguments By The Respondent
Mr. K.M. Nataraj learned Additional Solicitor General (ASG) appearing for the Central Bureau of Investigation (CBI) mainly contended the following - (1) The Criminal prosecution cannot be dependent upon the ITAT order of 2007, and the prosecution could not and has not been part of the proceedings before the Tax Authorities and ITAT; (2) The ITAT Order is only subsequent to the framing of charges ; (3) Reliance was placed on the decision in Selvi Jayalalitha to assert that findings of Tax Authorities are not binding on criminal courts to accept the lawfulness of 'source of income'.
ITAT Order Exonerating The Accused Not Conclusive Proof Of “Lawfulness” Of Source Of Income
The contention of the appellants that the ruling in Selvi J Jayalalitha would not be applicable herein as the latter involved only an assessment order while the present fact deal with the findings of ITAT after the inquisition. The issue in Selvi Jayalalitha pertained to an appeal against an order of acquittal passed in a case of disproportionate assets under Section 13 of PCA. The accused therein relied upon income tax returns and income tax assessment orders. The Court therein held that IT returns do not suffice as conclusive proofs of the lawfulness of sources of income as mentioned under S.13 of PCA.
S.13 of PCA refers to criminal misconduct by a Public Servant. The provision reads as follows :
[(1) A public servant is said to commit the offence of criminal misconduct,-
Explanation 1. - A person shall be presumed to have intentionally enriched himself illicitly if he or any person on his behalf, is in possession of or has, at any time during the period of his office, been in possession of pecuniary resources or property disproportionate to his known sources of income which the public servant cannot satisfactorily account for.
Explanation 2. - The expression "known sources of income" means income received from any lawful sources.] [Substituted by Act No. 16 of 2018, dated 26.7.2018.]
(2) Any public servant who commits criminal misconduct shall be punishable with imprisonment for a term which shall be not less than one year but which may extend to seven years and shall also be liable to fine.
The court addressed the above contention of the appellants and reasoned the following aspects : (1) The decision in Selvi Jayalalitha would be fully applicable, as the Court therein after a detailed examination of previous rulings laid down that IT returns and orders passed in IT proceedings are not conclusive proof; (2) the decision in Selvi Jayalalitha involved a complete criminal trial and the Supreme Court sat in appeal against the order of acquittal passed by the High Court. It was therein held that IT returns or order could at best be considered pieces of evidence which are to be considered along with other materials; (3) Though admissible as evidence, the IT returns or order's probative value depends on the nature of information furnished and findings recorded; (4) Such IT returns and orders ipso facto do not conclusively prove or disprove a charge.
“32. Therefore, in the present case, the probative value of the Orders of the Income Tax Authorities, including the Order of the Income Tax Appellate Tribunal and the subsequent Assessment Orders, are not conclusive proof which can be relied upon for discharge of the accused persons. These orders, their findings, and their probative value, are a matter for a full-fledged trial. In view of the same, the High Court, in the present case, has rightly not discharged the appellants based on the Orders of the Income Tax Authorities”
The Ratio In Radheyshyam Kejriwal That Exoneration In Civil Adjudication Disallows Criminal Prosecution, Not Applicable To Present Case
The Court rejected the argument of the appellants that when there is an exoneration on merits in a civil adjudication, a criminal prosecution on the same set of facts and circumstances wouldnot be permitted. In contending so, the appellants mainly placed reliance upon the decision in Radheshyam Kejriwal vs State Of West Bengal & Anr.
In Radheyshyam Kejriwal, the petitioner faced both criminal prosecution and civil proceedings under the same act, that was Foreign Exchange Regulation Act(FERA), 1973 for payments made by him in Indian currency in exchange for foreign currency without any general or specific exemption from the Reserve Bank of India. When the adjudicating officer therein did not find any substantial documentary evidence to prove alleged transactions falling foul of the FERA and thus directed to drop the proceedings.
The Supreme Court in the above case observed that both the adjudication proceedings and criminal prosecution would arise on the same facts and under the provisions of the same Act, i.e. FERA. Therefore the court held that exoneration on merits in the civil proceedings would become valid grounds for not criminal trial on the same set of circumstances.
However, the bench distinguished the principle laid in Radheyshyam Kejriwal from the present case, wherein while the criminal prosecution is under the PCA, the civil proceedings which are being relied upon for discharge are through the exoneration under the Income Tax (IT) Act .
37…..The scope of adjudication in both of these proceedings are vastly different. The authority which conducted the income tax proceedings and the authority conducting the prosecution is completely different (CBI). The CBI was not and could not have been a party to the income tax proceeding. Given the said factual background, the decision in Radheyshyam (supra) is not applicable to the present case.
Finding a prima facie case in the present facts, without concerning itself of the merits, the Court acceded to the arguments of the learned ASG in accepting that no valid grounds for discharge have been made by the appellants.
43. We are not to conduct a dress rehearsal of the trial at this stage. The tests applicable for a discharge are well settled by a catena of judgments passed by this Court. Even a strong suspicion founded on material on record which is ground for presuming the existence of factual ingredients of an offence would justify the framing of charge against an accused person [Onkar Nath Mishra & Ors. v. State (NCT of Delhi) & Anr. (2008) 2 SCC 561 Paragraph 11]. The Court is only required to consider judicially whether the material warrants the framing of charge without blindly accepting the decision of the prosecution [State of Karnataka v. L. Muniswamy & Ors. (1977) 2 SCC 699 Paragraph 10]. Applying these principles to the present case, we accept the submission of the learned ASG that the appellants have not made out the case to say that the charge is groundless.
Furthermore, addressing the issue of the minority age of appellant Puneet during the period of the check, the Court stated that since the last 7 years of the check period, the appellant ceased to be a minor and that such a defence will be available before the Trial Court once the trials commences.
Dismissing the appeal, the bench directed the trial to be concluded expeditiously considering its pendency for nearly 25 years now.
46. For all the above reasons, we find no merit in these appeals and the appeals are dismissed. The interim orders stand vacated. All pending applications stand closed. The trial has been pending for nearly 25 years. We direct that the trial be expeditiously concluded and, in any case, on or before 31.12.2024. Needless to mention that the observations made herein are only in the context of the discharge proceedings.
Case Details: Puneet Sabharwal v. CBI SLP (Crl) No 2044/2021; RC Sabharwal v. CBI SLP (Crl) No 2685/2021
To convict an accused based on the statements made under Section 27 of the Evidence Act, the Supreme Court observed that the prosecution must establish the fact that the discovery of the evidence based read more
To convict an accused based on the statements made under Section 27 of the Evidence Act, the Supreme Court observed that the prosecution must establish the fact that the discovery of the evidence based on the statement made by the accused under Section 27 of the Evidence Act must not be known to anyone before the information was given by the accused.
“The prosecution will have to establish that, before the information given by the accused persons on the basis of which the dead body was recovered, nobody had the knowledge about the existence of the dead body at the place from where it was recovered.”, the Bench comprising Justices BR Gavai and Sandeep Mehta observed.
Before the Supreme Court, it was contended by the accused that the conviction could not be sustained as the discovery of the evidence i.e., the dead body was not done based on the statements under Section 27 of the Evidence Act as the prosecution had failed to establish that nobody had knowledge of the existence of the dead body at the place from where it was recovered.
Based on the above premise, the court acquitted the accused while allowing the appeal of the accused while setting aside the order of the conviction.
For Respondent(s) Mr. Praneet Pranav, Dy. A.G. Mr. Prashant Singh, AOR
Case Title: RAVISHANKAR TANDON vs. STATE OF CHHATTISGARH
New Delhi, India
Palmer, United States
London, United Kingdom
New Delhi, India
Jaipur, India
New Delhi, India
Delhi, India
New Delhi, India
Chandigarh, India
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Information which infringes any patent, trademark, copyright or other proprietary rights.
Information which deceives or misleads the addressee about the origin of the messages or communicates any information which is grossly offensive or menacing in nature.
Information which threatens the unity, integrity, defence, security or sovereignty of India, friendly relations with foreign states, or public order or causes incitement to the commission of any cognizable offence or prevents investigation of any offence or is insulting any other nation.
Information containing software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer resource.
Information violating any law for the time being in force.
All Documents/ Advices should be appropriately and accurately classified to the most specific location available. Incorrectly classifying Documents/ Advices is prohibited.
Documents/ Advice titles, Documents/ Advice descriptions, and bullets must be clearly written and should assist the customer in understanding the Documents/ Advice. .
All Documents/ Advice images must meet SoOLEGAL general standards as well as any applicable category-specific image guidelines.
Using bad data (HTML, special characters */? etc.) in titles, descriptions, bullets and for any other attribute is prohibited.
Do not include HTML, DHTML, Java, scripts or other types of executables in your detail pages.
Prohibited REGISTERED USER Activities and Actions
SoOLEGAL.com REGISTERED USER Rules are established to maintain a transacting platform that is safe for buyers and fair for REGISTERED USERS. Failure to comply with the terms of the REGISTERED USER Rules can result in cancellation of listings, suspension from use of SoOLEGAL.in tools and reports, or the removal of transacting privileges.
Attempts to divert transactions or buyers: Any attempt to circumvent the established SoOLEGAL Transactions process or to divert SoOLEGAL users to another website or Transactions process is prohibited. Specifically, any advertisements, marketing messages (special offers) or "calls to action" that lead, prompt, or encourage SoOLEGALusers to leave the SoOLEGAL website are prohibited. Prohibited activities include the following:
The use of e-mail intended to divert customers away from the SoOLEGAL.com Transactions process.
Unauthorised & improper "Names": A REGISTERED USER's Name (identifying the REGISTERED USER's entity on SoOLEGAL.com) must be a name that: accurately identifies the REGISTERED USER; is not misleading: and the REGISTERED USER has the right to use (that is, the name cannot include the trademark of, or otherwise infringe on, any trademark or other intellectual property right of any person). Furthermore, a REGISTERED USER cannot use a name that contains an e-mail suffix such as .com, .net, .biz, and so on.
Unauthorised & improper invoicing: REGISTERED USERS must ensure that the tax invoice is raised in the name of the end customer who has placed an order with them through SoOLEGAL Payment Systems platform . The tax invoice should not mention SoOLEGAL as either a REGISTERED USER or a customer/buyer. Please note that all Documents/ Advices listed on SoOLEGAL.com are sold by the respective REGISTERED USERS to the end customers and SoOLEGAL is neither a buyer nor a REGISTERED USER in the transaction. REGISTERED USERS need to include the PAN/ Service Tax registration number in the invoice.
Inappropriate e-mail communications: All REGISTERED USER e-mail communications with buyers must be courteous, relevant and appropriate. Unsolicited e-mail communications with SoOLEGAL , e-mail communications other than as necessary and related customer service, and e-mails containing marketing communications of any kind (including within otherwise permitted communications) are prohibited.
Operating multiple REGISTERED USER accounts: Operating and maintaining multiple REGISTERED USER accounts is prohibited.
In your request, please provide an explanation of the legitimate business need for a second account.
Misuse of Search and Browse: When customers use SoOLEGAL's search engine and browse structure, they expect to find relevant and accurate results. To protect the customer experience, all Documents/ Advice-related information, including keywords and search terms, must comply with the guidelines provided under . Any attempt to manipulate the search and browse experience is prohibited.
Misuse
of the ratings, feedback or Documents/ Advice reviews: REGISTERED
USERS cannot submit abusive or inappropriate feedback entries,
coerce or threaten buyers into submitting feedback, submit
transaction feedback regarding them, or include personal information
about a transaction partner within a feedback entry. Furthermore,
any attempt to manipulate ratings of any REGISTERED USER is
prohibited. Any attempt to manipulate ratings, feedback, or
Documents/ Advice reviews is prohibited.
Reviews: Reviews
are important to the SoOLEGAL Platform, providing a forum for
feedback about Documents/ Advice and service details and reviewers'
experiences with Documents/ Advices and services –
positive
or negative. You may not write reviews for Documents/ Advices or
services that you have a financial interest in, including reviews
for Documents/ Advices or services that you or your competitors deal
with. Additionally, you may not provide compensation for a review
(including free or discounted Documents/ Advices). Review
solicitations that ask for only positive reviews or that offer
compensation are prohibited. You may not ask buyers to modify or
remove reviews.
Prohibited Content
REGISTERED USERS are expected to conduct proper research to ensure that the items posted to our website are in compliance with all applicable laws. If we determine that the content of a Documents/ Advice detail page or listing is prohibited, potentially illegal, or inappropriate, we may remove or alter it without prior notice. SoOLEGAL reserves the right to make judgments about whether or not content is appropriate.
The
following list of prohibited Documents/ Advices comprises two
sections: Prohibited Content and Intellectual Property
Violations.
Listing
prohibited content may result in the cancellation of your listings,
or the suspension or removal of your transacting privileges.
REGISTERED USERS are responsible for ensuring that the Documents/
Advices they offer are legal and authorised for Transaction or
re-Transaction.
If
we determine that the content of a Documents/ Advice detail page or
listing is prohibited, potentially illegal, or inappropriate, we may
remove or alter it without prior notice. SoOLEGAL reserves the right
to make judgments about whether or not content is appropriate.
Illegal and potentially illegal Documents/ Advices: Documents/ Advices sold on SoOLEGAL.in must adhere to all applicable laws. As REGISTERED USERS are legally liable for their actions and transactions, they must know the legal parameters surrounding any Documents/ Advice they display on our website.
Offensive material: SoOLEGAL reserves the right to determine the appropriateness of listings posted to our website.
Nudity: In general, images that portray nudity in a gratuitous or graphic manner are prohibited.
Items that infringe upon an individual's privacy. SoOLEGAL holds personal privacy in the highest regard. Therefore, items that infringe upon, or have potential to infringe upon, an individual's privacy are prohibited.
Intellectual Property Violations
Counterfeit merchandise: Documents/ Advices displayed on our website must be authentic. Any Documents/ Advice that has been illegally replicated, reproduced or manufactured is prohibited.
Books - Unauthorised copies of books are prohibited.
Movies - Unauthorised copies of movies in any format are prohibited. Unreleased/prereleased movies, screeners, trailers, unpublished and unauthorized film scripts (no ISBN number), electronic press kits, and unauthorised props are also prohibited.
Photos - Unauthorised copies of photos are prohibited.
Television Programs - Unauthorised copies of television Programs (including pay-per-view events), Programs never broadcast, unauthorised scripts, unauthorised props, and screeners are prohibited.
Transferred media. Media transferred from one format to another is prohibited. This includes but is not limited to: films converted from NTSC to Pal and Pal to NTSC, laserdisc to video, television to video, CD-ROM to cassette tape, from the Internet to any digital format, etc.
Promotional media: Promotional versions of media Documents/ Advices, including books (advance reading copies and uncorrected proofs), music, and videos (screeners) are prohibited. These Documents/ Advices are distributed for promotional consideration and generally are not authorized for Transaction.
Rights of Publicity: Celebrity images and/or the use of celebrity names cannot be used for commercial purposes without permission of a celebrity or their management. This includes Documents/ Advice endorsements and use of a celebrity's likeness on merchandise such as posters, mouse pads, clocks, image collections in digital format, and so on.
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