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The trauma of a victim does not end with the incident and real-life issues may compel a victim to “forgo all the trauma which she had undergone and to take U turn,” at the time of trial. This was held in Imran Shabbir Gauri vs The State of Maharashtra [CRIMINAL APPEAL NO. 831 OF 2015] in the High Court of New Delhi by division bench consisting of Honourable Justice Prasanna B. Varale & S.M. MODAK.

The facts consist the man took the young girl to the bungalow where he was working, sexually assaulted her, and threatened her of dire consequences if she spoke about the incident to anyone. This was allegedly done several times. He also took victims nude images and threatened to publish them on social media. The case came to light when the girl narrated the incidents to her sister, who in turn informed the mother.

The counsel for the appellant argued that the victim had not supported her case before the trial court, and the court had had wrongly convicted his client by relying on the victim’s statement u/s 164 of the CrPc.

The Bench opined that the trial court could not have relied on the victims 164 statement to convict the accused, calling it “corroborative evidence,” in the absence of her testimony. We fail to understand what the trial court meant to say, corroboration of which fact? If the evidence of the principal fact is not there, the evidence adduced of the subsequent fact how it can be used for corroboration.”

The court observed that the victim was the “sole witness” of the incident and this didn’t seem like a case where she was initially tutored to make allegations against the father. “It is difficult to opine what compelled the victim not to state those facts which she has stated before the police.” Lastly, the Bench said in the zeal of protecting the interest of the victim, it cannot give go-bye to accepted principles.

The Bench passed the order while acquitting a 39-year-old man accused of raping his minor 14-year-old step-daughter, after the victim refused to support her statement given under section 164 of the CrPc, at the time of trial. The court, however, upheld his conviction under the Information Technology (IT) Act for taking the child’s nude photographs on his mobile phone. The bench held that the amendment was required to avoid a similar situation in future.

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The victim is not required to be a party to a Criminal Appeal from a conviction for offences against a woman or a child, punishable under the provisions of the IPC or POCSO Acts, or any other penal provision that applies to offences affecting the human body against any women/child all terms are understood in the context of the respective legislation that deals with such omissions. This auspicious judgment was passed by The High Court of Calcutta in the case of Ganesh Das v. State of West Bengal [CRA 228 OF 2020] by Honourable Justice Thottathil B. Radhakrishnan & Justice Aniruddha Roy.

The order has come in a criminal appeal filed by one Ganesh Das, who was convicted for offences punishable under Section 376(3) of IPC and Section 6 of the POCSO Act by the Trial Court and was sentenced to undergo rigorous imprisonment for 20 years. The appeal was opposed by the State, noting that the same is defective as the victim has not been made a party.

Learned amicus curie referred to the provisions of Section 23, 24(5) and 33(7) of the POCSO Act to point out that there is an overwhelming legislative thrust to ensure the protection of the victims. While citing the apex court judgment Vishaka Vs. State of Rajasthan, counsel states that the contents of international conventions and norms are significant for the interpretation of constitutional guarantees in absence of domestic law occupying the field and that Article 51 of the Constitution has to be read along with Article 253 of the Constitution and that in the absence of contrary legislation, municipal courts in India would respect the Rules of International Law.

The bench ordered “(A) the victim is not a necessary party to a Criminal Appeal from conviction for offences against woman or child, punishable under provisions of the I.P.C. or POCSO Act or any other penal provision which will apply in relation to offences affecting human body against any “woman” and/or “child”, both those expressions being understood in the context of the respective legislation which deals with such offences. (B) No such appeal would be defective in the absence of impleadment of the victim. (C) The procedure to be adopted in all such appeals would be to deal with those appeals without insisting on the impleadment of the victim. In cases where, over and above the assistance of the Public Prosecutor representing the State, the appellate court deems it necessary to provide further assistance to secure the interest of the victim through legal aid, the HCLSC or the DLSA concerned may be required to provide assistance through an empanelled or other advocates as may be decided by the HCLSC or the DLSA concerned.”

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In case of contracts freely entered into with the State, there is no room for invoking the doctrine of fairness and reasonableness against one party to the contract (State), for the purpose of altering or adding to the terms and conditions of the contract, merely because it happens to be the State. This was decided in the case of MEP Infrastructure Developers Ltd. vs. South Delhi Municipal Corporation and Ors. [W.P.(C) 2241/2020 & CM APPL. 7822/2020] by the Hon’ble Justice Sanjeev Sachdeva in the High Court of Delhi.

The brief facts of the case are that Toll Tax & ECC Collection Agreement was signed between the aforesaid respondent Corporation and the petitioner, the developers. As per the Contract Agreement, Petitioner was entitled to collect penalty from specified commercial vehicles evading toll tax by using free lanes. However, there has been leakage in collection because of specified commercial vehicles using free lanes to escape payment of toll tax and the inability of Petitioner to deploy its officials on the free lanes to collect toll tax and penalty. A letter was then issued to the Petitioner instructing it not to collect Toll & ECC from other than the allotted lanes and directing Petitioner to maintain the flow of traffic to avoid unnecessary traffic jam. The petitioner claimed a set off of Rs. 5.96 Crores from the toll tax as a force majeure event as per the Contract Agreement after the All India Motor Transport Congress strike. Owing to default, the SDMC issued notice of termination to the petitioner and also a notice for inviting tenders. This writ petition was filed to invalidate this termination among other things including the appointment of an independent adjudicator.

The counsel for the petitioner stated that due to Force Majeure event there has been a gross reduction of traffic volume and it was not possible for the Petitioner to make the deposits. It is submitted that the SDMC has acted under a misconception that there has been a violation of the order dated 02.03.2020 and has erroneously issued the letter of Termination on 16.03.2020. It was further contended that once the State or an instrumentality of the State is a party to the contract, it has an obligation in law to act fairly, justly and reasonably which is the requirement of Article 14 of the Constitution of India and if the Respondent as an instrumentality of the State has acted in contravention of the requirement of Article 14, then a writ court can issue suitable directions to set right the arbitrary actions of the Respondent

Counsels appearing for the Respondent have objected to the maintainability of the Writ Petition. It is submitted that the disputes raised are contractual in nature and purely governed by the terms of the Agreement between the parties. It is submitted that the Plea of the Petitioner that force majeure clauses would apply is misconceived. It is submitted that the defence of force majeure in the relation to the performance of obligations under a contract is a contractual dispute and a Petition for judicial review cannot be used as a mechanism for resolution of contractual disputes arising out of a force majeure clause in a contract.

The court looked into the merits of the case and heavily relied upon the case of Excise Commr. v. Issac Peter, (1994) 4 SCC 104 and concluded that the Corporation is alleged to have acted purely within the four corners of the Contract Agreement and sought to exercise its rights under the Contract Agreement to enforce the obligations imposed upon the Petitioner. Adding to it “Petitioner has the remedy of enforcing its rights under the Contract Agreement in terms of the contract act before an appropriate Civil Forum. This court in exercise of powers under Article 226 of the Constitution of India would not go into a purely contractual dispute.”

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The third proviso to Section 254(2A) of the Income Tax Act will now be read without the word “even” and the words “is not” after the words “delay in disposing of the appeal”. Any order of stay shall stand vacated after the expiry of the period or periods mentioned in the Section only if the delay in disposing of the appeal is attributable to the assessee. This was held in DEPUTY COMMISSIONER OF INCOME TAX & ANR. V. M/S. PEPSI FOODS LTD.[CIVIL APPEAL NO. 1106 OF 2021] in the Supreme Court of India by division bench consisting of JUSTICE R.F. NARIMAN, JUSTICE B.R. GAVAI, and  JUSTICE HRISHIKESH ROY.

Facts are that Delhi High Court struck down part of the third proviso to S.254(2A) of the Act, which did not permit the extension of a stay order beyond 365 days, even if the assessee was not responsible for delay in hearing the appeal in a writ petition filed by the respondent. An appeal has been filed by the petitioner against the same.

The counsel for the petitioner contended that there is no right to stay in an appellate proceeding, as such stay is dependent upon the discretion of the Appellate Court. Discretionary remedy of a stay is part and parcel of the right to appeal and can be taken away by the legislature. He then argued that Article 14 of the Constitution of India is not to be applied mechanically, when it comes to tax statutes, they must be read literally.

The counsel for the respondent relied strongly on the reasoning of the impugned judgment of the High Court and argued that once discretionary relief has been granted based upon a strong prima case, it would be wholly arbitrary and discriminatory that such relief is vacated automatically. Stay cannot be vacated without dilatory tactics on the part of the Appellant being found against the Appellant. They cited judgments of the Apex Court to show that discriminatory taxation has been struck down under Article 14 of the Constitution of India.

The court made reference to the Apex court judgment in CIT v. J.H. Gotla., wherein the court had observed that, “Though equity and taxation are often strangers, attempts should be made that these do not remain always so and if a construction results in equity rather than in injustice, then such construction should be preferred to the literal construction.”

The court also referred to the judgement of Essar Steel India Ltd. Committee of Creditors v. Satish Kumar Gupta, wherein the Apex Court had made the following observations, “Given the fact that the time taken in legal proceedings cannot possibly harm a litigant if the Tribunal itself cannot take up the litigant’s case within the requisite period for no fault of the litigant, a provision which mandatorily requires the CIRP to end by a certain date — without any exception thereto — may well be an excessive interference with a litigant’s fundamental right to non-arbitrary treatment under Article 14 and an excessive, arbitrary and therefore unreasonable restriction on a litigant’s fundamental right to carry on business under Article 19(1)(g) of the Constitution of India. This being the case, we would ordinarily have struck down the provision in its entirety.”

Considering the facts of the case and settled proposition of law the Court held, the impugned judgment of the Delhi High Court in M/s Pepsi Foods Ltd. was correct. Resultantly, the judgments of the various High Courts which follow the aforesaid declaration of the law were also correct. Thus dismissing the appeal.

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Trial Court shall not proceed to make any endorsement on the documents which are produced and filed by the petitioner in compliance with the Impugned order till the period of limitation for challenging any decree that may be passed, if at all, against the petitioner has expired and subject to any orders being passed by the Appellate Court in such appeal, if filed by the petitioner. This was held in MS. ANITA CHANDRA v. MR. SUDHIR CHANDRA AND ORS [CM(M) 25/2021] in the High Court of New Delhi by single bench consisting of JUSTICE NAVIN CHAWLA.

Facts are that learned Additional District had allowed the application of the respondent no.1 under Section 31 of the SRA, 1963, for a direction to the petitioner to file the documents in original. The application had been made at the stage when the suit was listed for final arguments before the Court. The petitioner has filed petition challenging the order.

The learned counsel for the respondent contended that the Court can, at any stage, require the parties to file the documents in original and especially where the authenticity of the documents is in question. He cited judgement of Aktiebolaget Volvo & Ors. vs. R.Venkatachalam & Anr.

The court in order to discuss the scheme of the Code of Civil Procedure, 1908 in relation to the Indian Evidence Act, 1872 referred to the judgement of Aktiebolaget Volvo & Ors. vs. R.Venkatachalam & Anr., wherein the following observations were made, “The aforesaid should not be understood as laying down that in all cases the filing of photocopies is enough. If the document is doubtful or for any other reason required by the court to remain in original on the file of the court, the court can always direct so and a party cannot insist on filing of copy only. There may be other instances where filing of the original is necessary, as in the case of documents like Will, Agreements which may be terminated/cancelled by destruction. The courts can in such cases insist upon the original being filed on the record.”

Considering the facts of the case and keeping in mind the settled proposition of law on the subject. The Court held that, Even though the court had power to order production of documents, they have to first adjudicate on the documents in challenge as being void or voidable and thereafter order it to be delivered and cancelled. The Courts should not, at the time of passing of decree itself make any endorsement on the documents, merely because the documents are on the record of the Court, doing so will make the right of the unsuccessful party to appeal against the said decree redundant.

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