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TITLE – Khengarbhai Mafabhai Rabari Versus State of Gujarat

Decided On September 2, 2023

12125 of 2023

CORAM: Hon’ble Justice Mr Hasmukh

INTRODUCTION-

The applicant accused has requested release on anticipatory bail in the event of his arrest in connection with the FIR for the offences punishable under Sections 406, 420, 506, 114, 205, 419, 423, 465, 467, 468, 471, and 120(B) of the Penal Code, 1860 through this application under Section 438 of the Criminal Procedure Code, 1973.

FACTS OF THE CASE

The current applicant is a chartered accountant and has no connection to a crime. Just the audit of the Parvati Jadav Charitable Trust Hospital was completed by him. He claims that the current applicant is implicated in the offence as a result of an internal dispute among the trustees. It is claimed that the applicant failed to conduct a proper audit because he failed to properly prepare the audit report, visit the accounts, and verify the accounts. This failure led to misappropriation. Other than this, no role is assigned to the current applicant. As a result, he asks to approve the application because the applicant has carried out his professional duties with the utmost care and diligence and has no prior record of criminal offences.

COURT ANALYSIS AND DECISION

Learned Additional Public Prosecutor, who is advocating for the defendant, Given the seriousness and nature of the offence, the state has opposed the granting of anticipatory bail. Custodial interrogation is reportedly necessary. She therefore asked for the current application to be rejected.

It is equally necessary for the Court to exercise its discretion judiciously, cautiously, and strictly in compliance with the law after hearing the learned advocate for the parties and reviewing the investigation papers. with the fundamental guidelines established in numerous decisions of the Hon. Apex Court on the matter. The fact that, among other things circumstances, the considerations to be made when making an the request for bail it would be permissible for the Investigating Agency to request a police remand of the applicant in spite of this order from the competent Magistrate. The applicant must appear in person before the learned Magistrate on both the initial date of the application’s hearing and on all subsequent dates as the learned Magistrate may specify. This would be sufficient to hold the defendant in judicial custody and consider the prosecution’s request for a police remand. It is made clear that the applicant, even if remanded to police custody, shall be released immediately following the completion of such period of police remand, subject to other requirements of this anticipatory bail order.

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Written by- Steffi Desousa

14 Sep

It has been stated that the Court must make sure that the child is not repeatedly called to testify in court, even under Section 33(5) of the POCSO Act. – Gujarat High Court

TITLE – Mohammed Iliyas Idrishbhai Mevati Versus State of Gujarat

Decided On September 2, 2023

789 of 2023

CORAM: Hon’ble Justice Mr Hasmukh

INTRODUCTION-

The applicant herein has filed the current Criminal Revision Application under Sections 397 and 401 of the Criminal Procedure Code, 1973, in an effort to overturn the impugned order made by the learned Additional Sessions Judge and Special Judge (POCSO), Court No. 21, City Civil & Sessions Court, Ahmedabad in POCSO Case No. 179/2021, which dismissed the applicant’s application Exh.62 under Section 397 of the Criminal Procedure Code, 1973, on May 9, 2023.

FACTS OF THE CASE

The applicant claims that the learned Special Judge erred in rejecting the application Exh.62, which was submitted to recall the witness and conduct further cross-examination. The witness was initially questioned, but some questions were not asked of her. Now that the advocate has changed, more questions must be asked of the witness, and in accordance with the fair trial rule, the current applicant must be given the chance to cross-examine the witness. The learned Special Judge made a mistake by failing to call the witness, the prosecutrix, and failed to give the current applicant, the accused, the right to a fair trial.

COURT ANALYSIS AND DECISION

To the contrary, the learned APP has vehemently opposed the current application and claimed that prosecutrix is a minor and has already been examined in the year 2022 and that such an exercise is not permitted in order to simply fill in the gaps in prosecutrix’s evidence.

The prosecutrix is a minor, so the court must take that into account when deciding whether or not to repeatedly recall her and subject her to trauma. The mere substitution of an advocate is not sufficient cause to call the witness. She therefore asked for the current application to be rejected. Given the aforementioned fact, it is against the law to simply recall witnesses in cases of non-compoundable offences in order to fill in any gaps in the evidence or simply to erase prior testimony because doing so would not serve the interests of justice. It has been stated that the Court must make sure that the child is not repeatedly called to testify in court, even under Section 33(5) of the POCSO Act. Additionally, a change in the advocate is not a reason to recall the prosecutrix.

Written by- Steffi Desousa

14 Sep

A revisional proceeding appeal being pending would not be a reason to keep the present appeal pending. – Gujarat High Court

TITLE Principal Commissioner of Income Tax 1 Versus Elecon EPC Projects Ltd

Decided On September 2, 2023

578 of 2023

CORAM: Hon’ble Justice Mr Biren Vaishnav

INTRODUCTION-

The common order dated 24.02.2023 passed in the relevant appeals by which the Revenue’s appeals are dismissed has been challenged by the Revenue under Section 260A of the Income Tax Act.

FACTS OF THE CASE

The assessee filed a return of income. On March 22, 2016, the assessment was finalised in accordance with Section 143(3) of the Act. The appellate authority provided relief following the assessee’s filing of an appeal. The Principal CIT-II in Vadodara issued an order setting aside the assessment order with a directive to verify the assessee’s claims after the revisional authority verified the records and found that the assessment orders were incorrect and detrimental to the interest of Revenue. On December 21, 2018, the Assessing Officer issued a new order of assessment under Section 143 r.w. Section 263 of the Act after verifying the information.

COURT ANALYSIS AND DECISION

The assessee successfully appealed that assessment order before the CIT(A). The assessee’s appeal before the ITAT in Ahmedabad, where revision proceedings under Section 263 of the Internal Revenue Code.

The order under Section 263 of the Act of 27.03.2018, the ensuing order of assessment under Section 143 r.w., and that the Act was being contested by the Tribunal, who did so in an order dated 13.07.2022. The Act’s Section 263 would no longer be valid. It would not be appropriate to keep this appeal pending if there was an appeal pending against the revisional proceedings. Even though the assessee requested that the Assessing Officer postpone the proceedings, the Assessing Officer went ahead and finalized the assessment. The Revenue did not ask to keep the appeal on hold or pending before the ITAT on the grounds, Court was already preoccupied with an appeal against the revision proceedings. In the absence of this, the Tribunal’s conclusion that the subsequent assessment order giving effect to the revision order is void ab initio once the Section 263 proceedings were set aside by themselves could not be faulted.

Written by- Steffi Desousa

14 Sep

It is necessary for the Court to exercise its discretion carefully, judiciously, in accordance with the fundamental guidelines outlined- Gujarat High Court

TITLE Jigar Sandipkumar Jain Versus State of Gujarat

Decided On September 2, 2023

12185 of 2023

CORAM: Hon’ble Justice Mr Hasmukh

INTRODUCTION-

The applicant accused has requested release on anticipatory bail in the event of his arrest in connection with the FIR for the offences punishable under Sections 406, 420, 409, 34, and 120B of the Penal Code, 1860 through the current application under Section 438 of the Criminal Procedure Code, 1973.

FACTS OF THE CASE

COURT ANALYSIS AND DECISION

Given the seriousness and nature of the offence, the state has opposed the granting of anticipatory bail. He claimed that the current applicant had not actually conducted the audit in collusion with the other trustees and had prepared a false audit report, which had resulted in a significant loss of Rs. 94,97,88,969 in total. She has asked for the current application to be dismissed because she believes there is a chance that an evidence has been tampered with. It is equally necessary for the Court to exercise its discretion judiciously, cautiously, and strictly in accordance with the fundamental principles outlined in a wealth of decisions by the Hon’ble Apex Court on the subject after hearing the learned advocate for the parties and reading the investigation papers. It is well established that, among other circumstances, the considerations for a bail application should be This would be sufficient to hold the defendant in judicial custody and consider the prosecution’s request for a police remand. It is made clear that the applicant, even if remanded to police custody, shall be released right away after the allotted amount of time, subject to the other terms of this anticipatory bail order.

Written by- Steffi Desousa

13 Sep

Balancing Justice and Health: Delhi High Court’s Ruling on Virtual Appearances for Elderly Accused in Section 376 Case

Blog #delhi, #delhicourt, #delhihighcourt

Case Title: Dr. S. Jaitley & Anr. v. State (NCT of Delhi)

Date of Decision: September 1, 2023

Case Number: W.P.(CRL) 2098/2023 & CRL.M.A. 19540/2023

Coram: Hon’ble Ms. Justice Swarana Kanta Sharma

Factual Background

The petitioner no.1, a 75-year-old individual, is accused in a case registered under Sections 376/506 of the Indian Penal Code (IPC) pending trial before the Court of learned Additional Sessions Judge, Central, Tis Hazari Courts, Delhi.
An order dated 08.06.2023 was passed by the learned District Judge, directing petitioner no. 1 to attend the trial proceedings either physically or virtually based on his health conditions, and to furnish a proper medical certificate when appearing virtually.

Submissions of the Parties

Petitioners: The petitioners argued that the impugned order violated their rights and was contrary to the Court’s policies and regulations on virtual appearances. They claimed that it was impractical for petitioner no. 1, given his age and health, to appear physically on every hearing date.
Complainant: The complainant argued that the petition was filed to delay proceedings and that petitioner no. 1 was not suffering from health issues.

Issue

Whether petitioner no. 1, facing trial for an offense under Section 376 of IPC, should be allowed to appear virtually, and whether the conditions imposed for virtual appearances are maintainable in law.

Law on Presence of an Accused Facing Trial

The court discussed the fundamental principle that a trial should take place in the presence of the accused, as enshrined in Section 273 of the Code of Criminal Procedure, 1973 (Cr.P.C). However, the law also grants courts the discretion to exempt the accused from personal appearance under Sections 205 and 317 of Cr.P.C.

The court cited precedent cases such as Bhaskar Industries Ltd. v. Bhiwani Denim & Apparels Ltd. (2001) 7 SCC 401 and Puneet Dalmia v. CBI (2020) 12 SCC 695 to emphasize that courts should exercise discretion based on the facts and circumstances of each case

Virtual Hearings: Court Policies & Guidelines

The court highlighted its own office order dated June 5, 2023, which allowed individuals to appear through virtual mode without the need for prior requests. The order directed district courts to permit parties and their counsels to appear virtually during court proceedings, with specific exceptions.

Decision of the Court

The Court emphasized the importance of a fair trial and the presence of the accused but acknowledged the need to balance this with factors like age and health.
The Court referred to Court policies allowing virtual appearances and clarified that petitioner no. 1 was not seeking total exemption from personal appearance.
The impugned order was set aside, and the Court directed that petitioner no. 1 could appear virtually with certain conditions, and the physical presence would be required only when deemed essential by the Court.

The Court also noted that petitioner no. 1 need not furnish a medical certificate on every virtual appearance.

Written by – Ananya Chaudhary