Category Archives: Blog

The bench comprising of Justice L.Nageswara Rao, Justice Hemant Gupta, Justice Ajay Rastogi has reiterated that when the second appeal is listed for hearing on admission and if the High Court is satisfied that no substantial question of law is involved, it shall dismiss the second appeal without even formulating the substantial question of law in the case of Kirpa Ram (deceased) vs. Surendra Deo Gaur [Civil Appeal no. 8971 of 2010] relying on the case of Ashok Rangnath Magar v. Shrikant Govindrao Sangvikar , (2015) 16 SCC 763.

In the present case, the respondents have filed a suit for declaration challenging the vesting of the said land in Gaon Sabha in a suit filed on 20.7.1959. The said suit was decreed on 7.10.1960 holding that the plaintiffs are owners and Bhumidars of land comprising in Khasra No. 238. Later, the respondents have filed a suit for a permanent injunction on 31.7.1971 claiming that land is owned and possessed by them. But the plaintiff has stated that the said disputed land belongs to him and not others and also stated that the land in dispute does not bear Khasra No. 238 and that it is not situated in the revenue estate of Village Basai Darapur. Instead, the land in dispute bears Khasra No. 79 and is situated in the revenue estate of Village Shakarpur.

In view of this dispute, trial court held that the land belongs to the respondents. Then, the first appeal was filed by the Plaintiff. The High Court followed the judgment of the trial Court. The second Appeal has been filed and The High Court vide judgment dated 25.8.2008 dismissed the second appeal filed by the appellants herein. Aggrieved by the findings of the High Court, Plaintiff is in appeal before this Court and argued that the High Court has dismissed the appeal without framing any substantial question of law which is mandatory in terms of Section 100 of the Code.

It was observed by the Supreme Court as,  

“The formulation of a substantial question of law or reformulation of the same in terms of the proviso arises only if there are some questions of law and not in the absence of any substantial question of law. The High Court is not obliged to frame the substantial question of law, in case, it finds no error in the findings recorded by the First Appellate Court.”.

Thus, the matter was disposed of as the Court did not find any error in the judgment and order of the High Court dismissing the Second Appeal without even formulating the substantial question of law.

Click here to read more.

Relegating an employee from a particular department of service after particularly long years of service and without being heard is not just against the principle of natural justice but also has adverse civil consequences. This remarkable judgement was passed by the bench consisting of Justice Hemant Gupta, Justice Ajay Rastogi and Justice L. Nageswara Rao of the Supreme Court in the matter of Subhash Kumar v The State of Bihar & Ors., [WRIT PETITION(CIVIL) NO(S). 798 OF 2020].

The present petition had been filed by the petitioner after him providing 15 years of service had been shifted from Bihar Administrative Service to Bihar Education Service without even being heard. further, the respondent had allegedly given the same exam as the petitioner but could not clear it claiming that a particular subject of General Studies- II had not been checked correctly. The court was convinced of the same and due to the court’s order, the petitioner had suffered. Thus, The respondent and petitioner had together approached the court with this petition.

The petitioner argued that him being shifted from the administrative services to the education services without being heard was 2in violation of the principles of natural justice and in disregard of the order of this Court dated 23rd October, 2019. Further, the counsel for the petitioner argued that the petitioner had no demur regarding appointment of the respondent who had finally succeeded in his own rights on dismissal of the appeal

On the other hand, the counsel for the respondents opined that the commission had no option but to revise the select list in light of the order passed by the court on 23rd October, 2019. Due to the list being revised, the respondent was appointed according to his merit but the petitioner being last in the open category in Bihar Administrative Service was shifted from the Administrative Service to the Education Service.]

The court held, “there was no justification left for the Commission to hold an exercise and revise the select list of 45th Combined Competitive Examination held pursuant to the advertisement dated 29th December, 2001 and acted upon in 2005 after a lapse of 15 years at the same time the case of Baldeo Choudhary being sui generis was to be considered for appointment w.e.f. 29th November, 2012 in terms of the revised recommendations made by the Commission qua him without disturbing the cadre/seniority of the persons including the petitioner in Bihar Administrative Service to which he was otherwise entitled for in compliance of the order of this Court dated 23rd October, 2019 assigning him seniority and the consequential benefits etc. w.e.f. 29th November, 2012.

The respondents in our view, were not at all justified in passing of the order impugned dated 23rd July, 2020 which was neither observed by the Division Bench of the High Court nor expressed by this Court in its order dated 23rd October, 2019 relegating the petitioner from Bihar Administrative Service to Bihar Education Service after he had rendered 15 years’ of substantive service in the cadre of Bihar Administrative Service”.

Click here to read judgement

Circumstantial evidence cannot be the basis for conviction, and if it is to be the basis for so, then it must successfully rule out every other possibility, beyond reasonable doubt, wherein the accused is innocent. The High Court of Sikkim bench, consisting of Hon’ble Chief Justice Arup Kumar Goswami and Hon’ble Justice Bhaskar Raj Pradhan, decided upon the matters of reasonable doubt and circumstantial evidence under Section 25, 26 and 27 of the Evidence Act, in the case of Mani Kumar Rai @ Tere Naam v. State of Sikkim [Crl. A. No. 04 of 2020].

On 15.06.2017, complaint was registered under Section 174 of the Cr.P.C. regarding the death  of Krishna Prasad Rai, whose dead body was found in a forest area. After the investigation and post mortem was held the next morning, it was concluded that the death of the person was unnatural and homicidal. An FIR was registered under Section 302 IPC against an unknown person. After the examination of the witnesses and based on the revelations made, the appellant was arrested. Based on the Disclosure Statement made by the accused under Section 27 of the Evidence Act, the weapon of offence, a Khukuri (kind of knife) was seized. On completion of the investigation, the accused was framed under Section 302 IPC by the Sessions Court, to which the accused pleaded not guilty and claimed to be tried. The Sessions Judge opined that the circumstantial evidence clearly pointed out that the accused had committed the crimes with pre-mediation, intention and knowledge. It was also recorded that it was proved that the accused had confessed the crime to a few witnesses, upon which the Trial Court held him guilty as reasonable doubt was established.

The learned counsel for the appellant submitted in the High Court that the Trial Court had erred in its findings since the evidence of witnesses suffered from major contradictions. The Public Prosecutor, placing reliance on Sahoo v. State of U.P. [AIR 1963 SC 40], submitted that the witness and the weapon had established beyond reasonable doubt that the accused was with the deceased before his death.

The High Court’s remarks on the Disclosure Statement were such that “The policy underlying Section 25 and 26 of the Evidence Act is to make it a substantive rule of law that confession whenever and wherever made to the police or while in the custody of the police to any person whosoever, unless made in the immediate presence of a Magistrate shall be presumed to have been obtained under the circumstances mentioned in Section 24 and therefore, inadmissible, except so far as provided by Section 27 of the Act. Section 27 of the Indian Evidence Act is based on the view that if a fact is actually discovered in consequence of information given, some guarantee is afforded thereby that the information was true, and accordingly can be safely allowed to be given in evidence”. Further, relying on Sharad Birdhichand Sarda v. State of Maharashtra [(1984) 4 SCC 116], the HC stated that “The evidence adduced by the prosecution is circumstantial in nature with no direct proof of the perpetration of the alleged offence by the appellant. It is no longer res integra that circumstantial evidence if is to form the basis of conviction must be such so as to rule out every possible hypothesis of innocence of the accused and must without any element of doubt unerringly point to such culpability”, and the appeal was allowed.

Click here to read judgement

The essential requirements that need to be fulfilled in order for a public prosecutor to obtain consent from the court to withdraw a petition in light of no case being made out under section 321 of the Cr.P.C were illustrated by the High Court of Sikkim at Gangtok. The single bench consisting of Justice Bhaskar Raj Pradhan pronounced this judgement in the matter of State of Sikkim v Asal Kumar Thapa & Ors., [Crl. Rev. P. No. 3 of 2020].

It was alleged that the respondents have indulged in corrupt practices and cause wrongful, pecuniary loss of Rs.8,48,675/- to the Government of Sikkim. A petition has been filed by the Public Prosecutor (hereinafter, P.P) under Section 321 Cr.P.C. before the learned Special Judge, P.C. Act, 1988 at Gangtok, seeking consent from the Hon’ble court for the withdrawal of the case from prosecution. The P.P alleged that withdrawing this case would save the precious time of the court could also be considered public policy or public interest since no case has been made out against the accused after thorough investigation. The P. P relied upon the judgment of Sheonandan Paswan vs. State of Bihar & Ors., [(1987) 1 SCC 288] passed by the Supreme court wherein it was held, “in which it was held that when an application under section 321 Cr.P.C. is made, it is not necessary for the court to assess the evidence to discover whether the case would end in conviction or acquittal”.

The court opined that even though the quality of evidence might be poor, the records would, at least at this stage, indicate otherwise. Further, it relied on the judgment of the Supreme Court in Bairam Muralalidhar vs. State of Andhra Pradesh, [2014) 10 SCC 380] and Niranjan Hemchandra Sashittal & Anr. vs. State of Maharashtra, [(2013) 4 SCC 642] while declining consent to withdraw the particular petition.

The bench relied on the case of Sheonandan Paswan vs. State of Bihar & Ors., [(1987) 1 SCC 288], referred by the P.P as well to state that, “section 321 Cr.P.C. The majority dismissed the appeal preferred by Sheonandan Paswan. It was held that section 321 Cr.P.C. needs three requisites to make an order under it valid: (1) the application should be filed by a public prosecutor or assistant public prosecutor who is competent to make an application for withdrawal, (2) he must be in charge of the case and (3) the application should get the consent of the court before which the case is pending. A perusal of the impugned order leads one to conclude that it was only the third requisite, i.e., the consent of the court before which the case was pending, which was not fulfilled”.

While dismissing the requests of the P.P, the court held, “If the learned Special Public Prosecutor was of the opinion that there was certain evidence lacking, section 173(8) Cr.P.C. would have come to the rescue of the investigating agency. This ground again fall short of the requirement mandated by section 321 Cr.P.C. The petition filed by the learned Special Public Prosecutor records only his opinion that because of certain lacunae, the prosecution would be rendered futile. The materials placed do not even remotely indicate to this Court that the petition under section 321 Cr.P.C. was made in good faith or in the interest of public policy and justice.

The facts reveal that after an elaborate investigation, charge- sheet had been filed against the public servants for criminal misconduct and other offences. The purpose for the enactment of the PC Act, 1988 is to eradicate corruption and provide deterrent punishment when criminal culpability is proven. That is the paramount public interest in corruption cases.

The impugned order passed by the learned Special Judge refusing to grant consent is correct, legal and proper. None of the grounds enumerated in the petition individually or collectively permits this court to express an opinion that the withdrawal was sought for in public interest and it was not to stifle or thwart the process of law or cause manifest injustice”.

Click here to read judgement

In a recent judgement dealing with the matter of robbery, the High Court of Delhi held that irregularity in a procedure cannot be a basis for challenging a judgement if it is not established that such an irregularity resulted in failure of justice. The single judge bench consisting of J. Vibhu Bakhru, in the matter of Gulam Jilani @ Kallu and Others v. Govt. of NCT of Delhi [CRL. A. 619/2017 and CRL.M.A. 6306/2020] shed light upon reasonable doubt, TIP and Section 267 of the Code of Criminal Procedural, 1973.

The appellants in this matter were previously convicted by the Trial Court for committing an offence punishable under Section 392/34 of the Indian Penal Code, 1860. They were sentenced to rigorous imprisonment for a period of 7 years along with Rs.3,000/- fine each ,the default of which would attract an additional 3 months of simple imprisonment. The appellants were originally charged under Section 392/411/34 of the IPC. The Trial Court acquitted them under all charges except Section 392, IPC, as the court held that the prosecution had not established that the good recovered from the appellants were those that were stolen. Further, it was observed that the complainant, who claimed to be the eyewitness, had various inconsistencies in his statements. In the view of the patchy evidence relating to the goods recovered from the accused, the Trial Court had acquitted the appellants under Section 411 of the IPC, stating that “the prosecution had failed to establish beyond any reasonable doubt that the articles recovered from the possession of the accused were the same articles that were robbed. The court reasoned that the articles recovered were in small quantity; there were no identification marks on the recovered articles and the same were readily available in the market. The said reasoning cannot be faulted”.

The present appeal was filed in order to impugn the decision of the Trial Court. While the appellants did not contest about whether the robbery itself had been committed or not, they argued that the prosecution had failed to prove the involvement of the appellants in the commission of the said offence, as their testimonies were inconsistent. Further, the appellants, relying on State (GNCT of Delhi) v. Sandeep [CRL L.P. 620/2019], argued that these testimonies are also unreliable as the accused were shown to the witnesses in the police station, prior to the TIP proceedings. The counsel for the appellants, relying on Harshad S. Mehta v. Central Bureau of Investigation [(1992) 24 DRJ 392], also argued that the police could not use the procedure under Section 267 of the Cr.P.C. for ensuring the attendance of the accused in one case in order to arrest him in another case. The HC, though agreeing with this argument, found that since no such contention was advanced before the Trial Court, it was clearly an afterthought. Adding to this, the court also held that “even if the contention that the procedure under Section 267 of the Cr.PC ought not to have been invoked to produce the appellants before the learned MM for the purposes of their arrest in the present case, is accepted, the appellants have failed to establish that they were unfairly prejudiced by the same. In terms of Section 465 of the Cr.PC, the impugned judgment convicting the appellants cannot be called into question on account of any irregularity in procedure unless it is established that the same resulted in the failure of justice”.

In this view, the HC found that there was no reason to interfere with the decision of the Trial Court as per the conviction. However, the HC held that the appellants deserved leniency since they were very young at the commission of the offence and now had families to support, and accordingly reduced the punishment.

Click here to read judgement