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Karnataka High Court: Directorate of Civil Rights Enforcement to the District Caste Verification committee,vests power to Cancellation of caste certificate, Tahsildar only implements the direction of the Committee.

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CASE TITTLE: B. GURUPRASAD V ASSISTANT COMMISSIONER and Anr

CASE NO: WRIT PETITION No.8039 OF 2021

ORDER ON: :28.05.2024

QUORUM: JUSTICE M. NAGAPRASANNA

FACTS OF THE CASE:

The facts leading to the present appeal in question is that, On 30-06-2015 a caste certificate is issued by the Tahsildar, Bengaluru North Taluk on an application filed by the 5th respondent that she belongs to Nayaka community, a Scheduled Tribe. On the strength of the caste certificate, it appears that the 5 th respondent contested election to Councillor of ‘BBMP’. the petitioner registers a complaint before the Directorate of Civil Rights Enforcement complaining that the 5th respondent had obtained a Scheduled Tribe certificate fraudulently. The said complaint was transferred by the Directorate of Civil Rights Enforcement to the District Caste Verification Committee, Bangalore Urban District, the 4th respondent, Chairman of which is the Deputy Commissioner. After long drawn proceedings, the Committee cancels the caste certificate issued in favour of the 5th respondent. The 5th respondent prefers an appeal before the 3rd respondent/ Scheduled Tribe Welfare and Appellate Authority, which by its order sets aside the order passed by the Committee and remits the matter back to the Committee. After the said remand, the Committee upholds the caste certificate issued to the 5th respondent depicting her to be belonging to Nayaka community, a Scheduled Tribe. This order is challenged by the petitioner before the Appellate Authority. The Appellate Authority further sets aside the order of the Committee directing the Committee to furnish reports upon which the earlier order was passed to both the parties and decide the matter afresh. After the said remand by the Appellate Authority, the Committee by its order directs that the complaint could not be entertained before the Committee, as the caste certificate was issued for election purpose which was not covered under the Karnataka Scheduled Castes, Scheduled Tribes and Other Backward Classes Act, 1990 and the Rules framed there under in the year 1992  The complaint thus comes to be dismissed. This order has become final. The 2nd respondent/Tahsildar, in terms of order of the Committee, cancels the caste certificate issued to the 5th respondent in terms of his order dated 23-09-2020. The 5 th respondent challenges the said order of the Tahsildar by filing an 6 appeal before the 1st respondent/Assistant Commissioner. These proceedings are challenged by the petitioner in this writ petition.

LEGAL PROVISIONS:

Section 4A of the Karnataka Scheduled Castes, Scheduled Tribes and Other Backward Classes (Reservation of Appointment Etc.) Act, 1990 talks about Issue of caste certificate and income and caste certificate.

Section 4B of the Karnataka Scheduled Castes, Scheduled Tribes and Other Backward Classes (Reservation of Appointment Etc.) Act, 1990 Appeal against order under section 4A

Section 4D of the Karnataka Scheduled Castes, Scheduled Tribes and Other Backward Classes (Reservation of Appointment Etc.) Act, 1990 Appeal.

CONTENTIONS OF PETITIONER:

The learned counsel appearing for the petitioner Smt. Sadhana Desai would vehemently contend that the proceedings before the 1st respondent/Assistant Commissioner are coram non-judice, as he has no authority to consider the appeal. Counsel further submitted that the caste certificate issued in favour of the 5th respondent comes to be cancelled by the Tahsildar not on independent inquiry conducted by him but only following the order of the Deputy Commissioner and Chairman of the Committee. Therefore, if it is following the order of the Deputy Commissioner, the Assistant Commissioner, a subordinate officer cannot and will not sit as an Appellate Authority over the order of a superior officer.counsel also submitted that it is coram non-judice. Elaborating the said submission, the learned counsel would contend that the appeal is preferred under Section 4B of the Act as against the order of the Tahsildar passed under Section 4A. The Tahsildar has, in fact, not exercised his jurisdiction under Section 4A, but only implemented the order of the Committee. Therefore, the 7 appeal under Section 4B is unavailable to the 5th respondent, as the Tahsildar has no jurisdiction to cancel the caste certificate. He can only accept an application, grant the caste certificate or reject the application. He has no power to cancel a caste certificate already issued.

CONTENTIONS OF THE RESPONDENT:

The Respondent through their counsel Sri C.Jagadish  contended that the Tahsildar had only implemented the order passed by the Committee. Therefore, the appeal would not lie to the 1st respondent/Assistant Commissioner. It was appropriately directed to be considered by the Committee. The Committee erroneously holds that it has no jurisdiction to consider the caste certificate issued for election purposes under the Act. The learned counsel also submited that the issue as to whether the Committee has jurisdiction to consider caste certificate issued for election purposes is completely answered holding that the Committee has jurisdiction by the Apex Court in the case of BHARATI REDDY v. STATE OF KARNATAKA . The learned counsel further submits that since the 5th respondent has not challenged the order of the Committee which sets aside the order of the Tahsildar, the plea of the 5th respondent cannot be considered by this Court.

The learned counsel for the 5th respondent vehemently refutes these submissions, but would boil down his submissions to the fact of grant of liberty to challenge the order passed in the year 05-08-2020 by the Committee declining to entertain the petition before it on the score that the caste certificate issued for election purposes is not covered under the Act. Counsel further contended that the caste certificate was appropriately granted on genuine documents submitted and it was not a fraud played by the 5th respondent. Counsel further contended that the 5th respondent does belong to Scheduled Tribe – Nayaka community and there has been no determination by any Authority appropriately. Therefore, the counsel contended that liberty be reserved to the 5th respondent to knock at the doors of the Appropriate Authority is his submission.

COURTS ANALYSIS AND JUDGEMENT:

The court on giving anxious consideration to the submissions made by the respective counsels and having perused the material on record. The court opined that the submission of the learned counsel for petitioner merits acceptance, as the Tahsildar has no power to cancel a caste certificate. He can either accept or reject the application.the court further opined that  Cancellation of caste certificate is the power vested with the Committee. The Tahsildar only implements the direction of the Committee. The court also observed that, An appeal to the Assistant Commissioner/1st respondent would lie under the Act, if the Tahsildar has on independent application of mind rejected the application for issuance of caste certificate and not cancellation of a caste certificate on the directions of the Committee. Admittedly, the Tahsildar has not passed any order under Section 4A of the Act, as Section 4A supra empowers the Tahsildar to issue caste certificate or caste and income certificate as the case would be. Appeal to the Assistant Commissioner would lie under Section 4B against the order passed by the Tahsildar under Section 4A, which is either accepting or rejecting the application seeking issuance of caste certificate, as Section 4A deals with only issuance of caste 22 certificate and Section 4B deals with appeal against an action on such issuance or non-issuance. 14. Therefore, the appeal in the case at hand, before the Assistant Commissioner, is undoubtedly an appeal before a forum, which is coram non-judice.the court further observed that the proceeding before the 1st respondent is undoubtedly de hors jurisdiction and is now trite that, any proceeding or an order which is without jurisdiction is coram non-judice, resultantly, a nullity in law. Therefore, the very proceeding before the 1st respondent is contrary to law.The court further opined that the order of the 4the respondent/Committee rejecting entire proceedings as not maintainable is again erroneous, therefore For the aforesaid reasons, allows the Writ Petition and the proceedings before the 1st respondent/ Assistant Commissioner stand obliterated.further the court left the parties with liberty to avail all such remedy as is available in law.

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The provisions of DVAT Act with regard to grant of interest would be applicable to the case of the petitioner: Delhi High Court.

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CASE TITTLE: RASHTRIYA TRANSPORT CORPORATION V COMMISSIONER OF DELHI GOODS AND SERVICE TAX & ANR.

CASE NO: W.P.(C) 11463/2023

ORDER ON: : 27 May 2024

QUORUM: . JUSTICE SANJEEV SACHDEVA, JUSTICE RAVINDER DUDEJA

FACTS OF THE CASE:

The facts leading to the present appeal in question is that the Petitioner was engaged in the business of transporting goods. A survey was conducted at the godowns of the Petitioner by the Officers of the Department, A notice was issued calling upon the relevant records stated therein. Default Assessments were framed on imposing tax of Rs. 4,91,096/- and penalty under section 86 (19) and under Section 86 (14) amounting to Rs. 4,91,096/- and Rs. 50,000/- respectively. The assessment was challenged before Objections Hearing Authority which was rejected  After the said order, Petitioner deposited disputed amount of tax penalty vide challans. Being aggrieved, Petitioner preferred appeals before the Delhi Value Added Tax [“DVAT”] Appellate Tribunal but the same were partially allowed, whereby, only the penalty imposed under Section 86 (19) was set aside. Petitioner preferred VAT Appeal before this Court the matter was remanded to the Tribunal for deciding afresh. Accordingly, the appeals were reconsidered and decided in favour of the petitioner vide order dated 10.05.2023, whereby, assessments framed by Assessing Authority and the order passed by OHA were set aside. Petitioner preferred Writ Petition (C) No. 8667/2023 before this Court seeking refund of the amount deposited with interest and the same was disposed of, directing the Respondents to decide the claim of petitioner within four weeks the entire deposited amount was refunded along with interest calculated from the date of order of the Appellate Tribunal at the rate of 6% per annum. Challenging the order petitioner again approached this Court and this Court set aside the order dated and directed the Authority to reconsider the issue of interest and pass a speaking order thereto. After hearing the Petitioner, Respondents passed a speaking order rejecting the contentions of the petitioner of higher rate of interest than that mentioned in the Delhi Value Added Tax [“DVAT”] Act as also grant of interest from the date of deposit. The interest on the penalty imposed under Section 86 (19) of Rs. 4,91,096/- was calculated from 26.08.2021 i.e. the date of order by which the said penalty was set aside by the learned Tribunal, while the interest on the tax and penalty under Section 86 (14) was calculated from 10.05.2023.Hence this petition.

LEGAL ISSUES:

whether the provisions of DVAT Act with regard to grant of interest would be applicable to the case of the petitioner, who admittedly is not a dealer but a transporter, and was not engaged in trading of goods and what would be the rate of interest and the date from which such interest is payable?

LEGAL PROVISIONS:

Sections 38 of the DVAT Act, Deals with refunds

Section 42 of the DVAT Act, deals with Intrest.

CONTENTIONS OF APPELLEANT:

The appellant through their counsel has submitted that Delhi Value Added Tax Act Appellate Tribunal has concluded that petitioner is not a “dealer” in terms of provisions of DVAT Act, 2004 and accordingly the provisions of DVAT Act are not applicable in the present case. That being so, the sum of Rs. 10,32,138/- deposited by the petitioners with the respondents was neither a tax nor a penalty for violation of any provision of DVAT Act.the counsel further submitted that Such amount was illegally retained by the respondents for over a period of 17 years without authority of law, and therefore, respondents are bound to compensate petitioner by way of interest at the market rate.It is submitted that impugned order insofar as it restricts rate of interest as prescribed under the DVAT Act is liable to be set aside/quashed. The counsel has also placed reliance on judicial decisions, in support of his contentions

CONTENTIONS OF THE RESPONDENT:

The respondent through their Counsel has argued that the term, employed in Sections 38 and 42 of the DVAT Act is “person” and not “dealer”, which would certainly include within its fold any person including the transporter and, therefore, to give a restricted meaning to the word, “person”, occurring in Sections 38 and 42 of the DVAT Act, The counsel further submitted that it would be contrary to the intention of the legislature, which has explicitly and consciously employed the term, “person” and not “dealer” and if the contention of the petitioner is accepted, it would be tantamount to doing damage to the literal meaning of the said provisions as well as intention of legislature in enacting the said provisions.the counsel further argued that Sections 38 and 42 have a larger scope to include persons other than just the dealers and, therefore, as per the said provisions, the rate of interest liable for the refund is annual rate notified by the Government  at 6% p.a. counsel further submitted that amount of tax and penalty was deposited by the petitioner only after the objections filed by him were rejected by the OHA and, therefore, the same are akin to the pre-deposit before filing the appeal. Learned Standing Counsel has also placed reliance on decision of Allahabad High Court in Ebiz.com Pvt. Ltd. Vs. Commissioner of Central Excise, Customs & Service Tax & Ors. MANU/UP/3167/2016, wherein, it was held that any amount received by revenue as deposit or pre-deposit i.e. unauthorisedly or under mistaken notion, cannot be retained by revenue since it has no authority in law to retain such amount and it must be refunded with interest, however, the interest was ordered to be refundable from the date after three months of passing of order by Commissioner till the amount is actually paid. The Counsel has thus submitted that writ petition is devoid of any merits and is liable to be dismissed.

COURTS ANALYSIS AND JUDGEMENT:

The court on hearing both the counsel, observed that the use of word “person” instead of “dealer” reflects that the intention of the legislature is to include the persons other than the dealers for the benefit of grant of refund and interest under Section 38 & 42 of the DVAT Act. Therefore, the court opined  that the provisions of Section 38 & 42 of the DVAT Act would be applicable to the petitioner/transporter.Also the court With regard to the contention of learned counsel for petitioner regards the payment of interest from the date of deposit, the decisions in the case of Roadmaster (supra) and Tata Chemicals (supra) are not applicable in the present case inasmuch as the decisions in both the cases were rendered in the context of Income Tax Act where there is a specific provision under Section 244(1)(A) for the payment of interest from the date of payment of excess tax by the assessee, while there is no corresponding provision in DVAT Act. Similarly, in the case of Redihot Electricals (supra), the Excise Authority had collected the amount as tax without authority of law and therefore the Court had granted interest at the rate of 12% per annum from the date of collection of the amount till the date of actual payment. In the Central Excise & Salt Act, 1944, there was no provision for the grant of interest on the refunded amount. However, in the DVAT Act, there is a specific provision under Section 42 for the grant of interest on the refund. Hence, the judgment in the case of Redihot Electricals (supra) is also not applicable in the present case.the court further opined that Section 42 of the DVAT Act provides that the interest shall be computed from the date when refund was due to be paid to the person until the date of refund. Admittedly, the refund became payable consequent to the orders passed by the DVAT Appellate Tribunal. The interest therefore shall be computed from the date(s) of the orders passed by the DVAT Appellate Tribunal Admittedly, statutory rate of interest is 6% by virtue of notification  The Tribunal had set aside the notice of penalty amounting to Rs. 4,91,096/- under Section 86(19) and, therefore, interest on such amount shall be computed and payable from 26.08.2021 at the rate of 6% p.a. till the date of refund. Vide subsequent orde, the Tribunal had set aside the payment of tax of Rs. 4,91,096/- and penalty of Rs. 50,000/- imposed under Section 86(14). Therefore, interest on such amount shall be payable from 10.05.2023 at the rate of 6% till the date of refund. Hence from the aforesaid, The court opined  that the GSTO has rightly computed the interest vide its order dated 31.07.2023, and therefore, the writ petition is devoid of any merits.the court further ordered that the Revenue will pay the interest  within four weeks of receipt of copy of this judgment. Therefore the court dismissed the present pettition.

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Solely on the basis of allegations bail cannot be resisted, High Court of Karnataka while viewing the bail petition

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CASE TITTLE: MADHUNIRANJAN SWAMY M. S. V STATE OF KARNATAKA

CASE NO: CRIMINAL PETITION NO. 4300 OF 2024

DATED ON: 21ST DAY OF MAY, 2024

QUORUM: JUSTICE S RACHAIAH

FACTS OF THE CASE:

The petitioner is before this Court seeking grant of anticipatory bail in Crime No.0020/2024 of Women Police Station, Tumakuru, registered for the offences punishable under Sections 498A, 342, 417, 109, 506, r/w Section 34 of Indian Penal Code (for short ‘IPC’) and Section 4 of the Dowry Prohibition Act, 1961. the complainant is the wife of petitioner and their marriage was solemnized about two and a half years ago. Petitioner is a Dentist by profession and he is working in Malaysia. After marriage, petitioner went to Malaysia by assuring the complainant that he would take her to Malaysia after one year, however, he did not return to India. Further, while going to Malaysia, he had taken an amount of Rs.5,00,000/ from the complainant’s father. Thereafter, the petitioner has neither called the complainant nor taken her to Malaysia. The in-laws and other family members of the petitioner were not taking care of the complainant and the complainant was not getting satisfactory answers when she asked about the whereabouts of the petitioner. Having suspected the act of the petitioner, complainant had lodged a complaint against the petitioner and her in-laws and the same is registered in FIR No.0020/2024 by the Women Police Station, Tumakuru.

LEGAL ISSUES:

Whether the bail application of the petitioner may be considered and may be enlarged on bail?

LEGAL PROVISIONS:

Sections 498A of indian penal code, Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine.”

Section 342 of the Indian penal code, talks about punishment for wrongful confinement

Section 417 of Indian penal code, talks about cheating.

Section 109 of Indian penal code, talks about abetment

Section 506 of indian penal code, talks about criminal intimidation

 Section 34 of Indian Penal Code talks about acts done by several person in furtherance of common intension

Section 4 of the Dowry Prohibition Act, 1961, talks about penalty for demanding dowry

CONTENTIONS OF APPELLEANT:

 The petitioner through their counsel submitted that petitioner has been falsely implicated in the matter and allegation against the petitioner was baseless.the counsel further submitted that Petitioner was coming to India frequently and was staying with the complainant. Due to some unavoidable circumstances, he could not take her to Malaysia where he is working. In the meanwhile, a false complaint has been registered against the petitioner family members. counsel further submitted that if bail is granted, the matter is likely to be settled between the parties. Petitioner would certainly go to India and have some negotiations with the complainant. the counsel also submitted that the offences alleged are neither punishable with death nor imprisonment for life. The petitioner is the permanent resident of the address mentioned in the cause title to the petition and he is ready and willing to abide by any of the conditions that would be imposed by this Court. Hence,the counsel prays to allow the petition in the interest of justice.

CONTENTIONS OF THE RESPONDENT:

The respondent through their counsel submitted that the averments of the complaint clearly disclose demand and acceptance of dowry and also cruelty and harassment by the family members of the petitioner. The counsel further submitted that the averments further disclose that complainant has been cheated by the petitioner. The counsel also submitted that the averments made in the complaint attracts Section 498A and other provisions of IPC including Section 4 of the Dowry Prohibition Act. The counsel further submitted that petitioner is staying in Malaysia and there may be a chance of absconding or tampering the prosecution witnesses. Therefore, the petitioner is not entitled for grant of anticipatory bail. Hence, the counsel prays for dismissal of the petition.

COURTS ANALYSIS AND JUDGEMENT:

The court on Having heard the learned Counsel for the parties and after perusal of the complaint averments, the court observed that it is not in dispute that the petitioner was working in Malaysia as a Dental Doctor and he used to come to India frequently and staying with the complainant. The court opined that the allegations against the petitioner are not sufficient to resist bail further If suitable conditions are imposed, certainly, it would safeguard the apprehension of the prosecution. The court On a careful perusal of the offences mentioned in the FIR, it appears that, the offences are neither punishable with death or imprisonment for life. Hence,The court opined that the petitioner may be enlarged on bail subject to conditions which will take care of the apprehension expressed by the respondent counsel that the petitioner may abscond or may tamper or threaten the prosecution witnesses. Accordingly, The court allowed the petition, Further the court ordered The petitioner to be enlarged on bail in the event of his arrest in Crime No.0020/2024 of Women Police Station, Tumakuru. The court further directed the petitioner to appear before the Investigating Officer within one month from the date of receipt of this order and on his appearance, the Investigating Officer shall enlarge him on bail subject to the conditions, that The petitioner shall furnish the bond in a sum of Rs.2,00,000/- (Rupees Two Lakhs) with one surety for the like sum to the satisfaction of the Investigating Officer,further the court directwed the  petitioner to appear before the Investigating Officer as and when called for the investigation. The petitioner shall not threaten or tamper the prosecution witnesses.The court further directed that in case the petitioner violates any of the bail conditions as stated above, the prosecution will be at liberty to seek for cancellation of bail.

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Patna High Court: Acquits Convicts in 2011 Murder Case Due to Lack of Evidence and Witness Credibility

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Patna High Court: Acquits Convicts in 2011 Murder Case Due to Lack of Evidence and Witness Credibility

Case title:  Rajendra Yadav VS The State of Bihar

Case no.:  CRIMINAL APPEAL (DB) No.940 of 2018

Dated on: 14th May 2024

Quorum:  Hon’ble. MR JUSTICE VIPUL M. PANCHOLI and Hon’ble. MR. JUSTICE RAMESH CHAND MALVIYA.

FACTS OF THE CASE

The present appeals have been filed under Section 374(2) of the Code of Criminal Procedure, 1973 (hereinafter referred as ‘Cr.P.C.’) challenging the impugned judgment of conviction dated 13.06.2018 and order of sentence dated 14.06.2018 passed by the learned 3rd Additional District and Sessions Judge, Araria, in connection with Sessions Trial No. 1151/2012, T.R. No.64/2017 (arising out of Bhargama P.S. Case No. 43/2011) by which all the appellants have been convicted and appellant/convict Rajendra Yadav has been sentenced to undergo rigorous imprisonment for life with a fine of Rs. 50,000/- (fifty thousand) for the offence punishable under Section- 302 of I.P.C. In default of payment of fine, the convict will have to undergo further one year imprisonment. He has further been sentenced to undergo rigorous imprisonment for three years with a fine of Rs. 5000/- (five thousand) for the offence punishable under Section 27 of the Arms Act. In default of payment of fine, he will have to under further imprisonment for six months. The sentences have been directed to run concurrently. Appellants/convicts Badri Yadav, Kailash Yadav and Mithilesh Yadav @ Akhilesh Yadav have been sentenced to undergo rigorous for life with a fine of Rs.50,000/- (fifty thousand) each for the offence punishable under Section -302/149 of I.P.C. In default of payment of fine, the convicts will have to further undergo one year imprisonment. They have also been sentenced to undergo rigorous imprisonment for 2 years and 6 months with a fine of Rs.5000/ each for the offence punishable under Section-148 of I.P.C. In default of payment of fine, they will have to undergo further imprisonment for three months each. All the sentences have been directed to run concurrently. At the outset, it is relevant to note that Mr. Amarnath Jha, learned counsel, earlier appearing for the appellants, states that he has already given no objection to the appellants. However, nobody has filed appearance in Cr. Appeal (D.B.) No. 931 of 2018, which is pending for hearing since long. The present appeal is of the year 2018 and out of three appeals, in one appeal, appellant/convict is in custody for more than 12 years. Therefore, we have no option, but to proceed with the matter and, therefore, we have requested Mr. Sandeep Kumar Pandey to assist the Court in the matter and, with his consent, he is appointed as Amicus Curiae. “On 08.05.2011, the informant was returning from Parsa Haat by his brother-in-law’s motorcycle bearing Regn. No. BR 38 A-8010. After reaching the door of Satya Narayan Mandal, S/o Late Moti Mandal of his village at around at 6 O’clock, he was having a discussion about farming activities. All on a sudden 1. Rajendra Yadav S/o- Jagdeesh Yadav 2. Badri Yadav S/o- Late Janak Yadav 3. Kailash Yadav S/o- Badri Yadav 4. Shaili Devi, w/o Badri Yadav 5. Gajen Yadav S/o- Mohan Yadav Vill- Jahad and 6. Badri Yadav’s Son-in-law Mithilesh Yadav S/o- Not known, Vill- Belodih, P.S not known, Dist. Madhepura came there, out of whom Rajendra Yadav S/o Late Jagdeesh Yadav had a country-made rifle in his hand and others had sticks in their hands. They surrounded the informant and started beating him at Satyanarayan Mandal’s door.

ISSUES

  1. Whether the delay in sending the First Information Report (FIR) to the Magistrate was justified and whether it affected the prosecution’s case.
  2. Whether the appellants were falsely implicated in the occurrence due to an election dispute, as claimed by the defence.
  3. Whether the testimonies of the prosecution’s eye-witnesses, who were relatives of the deceased, were reliable and trustworthy, given the contradictions and inconsistencies in their statements.
  4. Whether the medical evidence, including the post-mortem report, supported the prosecution’s timeline and version of events.

LEGAL PROVISIONS

Section 302 of the Indian Penal Code (IPC): Punishment for Murder

This section deals with the punishment for murder. It states that whoever commits murder shall be punished with death or imprisonment for life and shall also be liable to a fine.

Section 149 of the Indian Penal Code (IPC): Every member of unlawful assembly guilty of offense committed in prosecution of common object

This section states that if an offense is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or such as the members of that assembly knew to be likely to be committed in prosecution of that object, every person who, at the time of the committing of that offense, is a member of the same assembly, is guilty of that offense.

Section 148 of the Indian Penal Code (IPC): Rioting, armed with a deadly weapon

This section deals with the punishment for rioting, armed with a deadly weapon or with anything which, used as a weapon of offense, is likely to cause death. The punishment can extend to imprisonment for three years, or with a fine, or with both.

Section 27 of the Arms Act, 1959: Punishment for using arms, etc. This section prescribes the punishment for using arms in contravention of Section 5 of the Arms Act, 1959, which deals with the requirement of a license to possess or carry any firearm or ammunition. The punishment can range from imprisonment for not less than three years, which may extend to seven years, and also with a fine.

Section 374(2) of the Code of Criminal Procedure, 1973 (Cr.P.C.): Appeals from convictions This section allows any person convicted on a trial held by a Sessions Judge or an Additional Sessions Judge to appeal to the High Court.

 

CONTENTIONS OF THE APPELLANT

Heard Mr. Ravindra Kumar, assisted by Mr. Rajesh Roy, Manoj Kumar and Mr. Sandeep Kumar Pandey, learned counsels for the appellant, Mr. Sujit Kumar Singh, learned A.P.P. for the respondent State and Mr. Shashi Bhushan Kumar, learned counsel for the informant (in Cr. Appeal (D.B.) No.940 of 2018, Mr. Kumar Dhirendra, assisted by Mr. Diwanshu Kumar, learned counsel for the appellants, Mr. Sujit Kumar Singh, learned A.P.P. for the respondent State (in Cr. Appeal (D.B.) No.880 of 2018 and Mr. Sandeep Kumar, learned Amicus Curiae, for the appellant and Mr. Ajay Mishra, learned A.P.P. for the respondent-State in

Cr. Appeal (D.B.) No. 931 of 2018). Learned advocates appearing for the respective appellants have submitted that there is a delay in sending the F.I.R. to the Magistrate Court and the appellants have been falsely implicated in the occurrence in question. Though the informant has stated that six accused persons named in the F.I.R. came with weapons and assaulted the informant as well as one Samindo and they sustained injuries, the injury report of the aforesaid persons were not produced before the Court nor the Doctor was examined. It is further submitted that the informant and Samindo Yadav are not the eye-witnesses, despite which they were projected as eye-witnesses by the prosecution. The aforesaid witnesses are near relatives of the deceased and, therefore, their deposition is required to be scrutinized carefully. It is submitted that looking to the major contradictions in the depositions of the so-called eye-witnesses, it can be said that they are not trustworthy and, therefore, their depositions be discarded. At this stage, it is also submitted that P.Ws. 2, 3 and 4 are projected as eye-witnesses to the occurrence by the prosecution however, from the deposition given by P.W. 10 Bhola Singh, who was the 1st Investigating Officer, it is revealed that he had recorded the statements of the informant Mahesh Yadav and Simindo Yadav only and thereafter he was transferred and the charge of investigation was handed over to another officer namely Arvind Kumar Yadav. Surprisingly, Arvind Kumar Yadav has also not been examined by the prosecution. It is further submitted that thereafter P.W. 9 Dev Raj Ray took over the charge of investigation on 30th of June, 2011 and from the deposition of the said witness, it is revealed that the said I.O. has recorded the statements of the other so-called eye-witnesses only on 01.08.2011. It is, thus, contended that Rajendra Yadav, Bindeshwari Yadav, Garib Yadav and Manoj Yadav are not the eye-witnesses. Even otherwise, there are major contradictions in their deposition and, therefore, the Trial Court ought to have discarded the depositions given by the aforesaid witnesses. Even P.W.11, the doctor Binod Bisnoi who had conducted the post mortem of the dead body of the deceased, has stated that the post mortem was conducted on 09.05.2011 and the said witness has further stated that the time elapsed since death is within 48 hours. Learned counsels, therefore, submitted that the medical evidence does not support the version given by the informant and the so-called eye-witnesses. Learned advocates for the appellants, therefore, urged that the Trial Court has committed grave error while recording the judgment of conviction and order of sentence. Therefore, this Court may quash and set aside the same and thereby allow all the appeals

CONTENTIONS OF THE RESPONDENTS

Learned counsel for the informant and the learned Additional Public Prosecutors have opposed the appeals filed by the appellants. It is submitted that P.W.1 to P.W.5 and P.W. 7 are the eye-witnesses to the occurrence in question and all of them have supported the case of the prosecution. The specific allegation is levelled against the appellant Rajendra Yadav that he fired from his country-made rifle and the bullet hit the chest of the deceased causing his death. The medical evidence also supports and corroborates the case of the eye-witnesses. The Investigating Officers have also deposed the manner in which the investigation was carried out by them and, therefore, there is ample material on record which suggests that the appellants have killed the deceased. It is further submitted that the prosecution has also proved the motive on the part of the appellants to kill the deceased and thereby the prosecution has proved the case against all the appellants beyond reasonable doubt. Hence, no error is committed by the Trial Court while passing the impugned judgment and order. Learned counsels for the respondents, therefore, urged that all these appeals be dismissed. learned counsel for the informant and the learned Additional Public Prosecutors have opposed the appeals filed by the appellants. It is submitted that P.W.1 to P.W.5 and P.W. 7 are the eye-witnesses to the occurrence in question and all of them have supported the case of the prosecution. The specific allegation is levelled against the appellant Rajendra Yadav that he fired from his country-made rifle and the bullet hit the chest of the deceased causing his death. The medical evidence also supports and corroborates the case of the eye-witnesses. The Investigating Officers have also deposed the manner in which the investigation was carried out by them and, therefore, there is ample material on record which suggests that the appellants have killed the deceased. It is further submitted that the prosecution has also proved the motive on the part of the appellants to kill the deceased and thereby the prosecution has proved the case against all the appellants beyond reasonable doubt. Hence, no error is committed by the Trial Court while passing the impugned judgment and order. Learned counsels for the respondents, therefore, urged that all these appeals be dismissed.

COURT’S ANALYSIS AND JUDGEMENT

We have considered the submissions canvassed by the learned counsels for the parties. We have also perused the evidence of prosecution witnesses and also perused the documentary evidence exhibited. P.W. 1 is Simindo Yadav. He has stated in his examination-in-chief that the incident took place one and a half years ago at 06:00 p.m. He was returning from Parsa Haat when he saw that Badri Yadav, Kailash, Shaili Devi, Mithilesh Yadav, Rajendra and Gajen Yadav were present at the door of Badri Yadav. Badri Yadav had caught hold of Ramesh and ordered to shoot him. Ramesh was shot at and he died. The witness was also beaten. Police had come to the place of occurrence. Post Mortem was done. He claims to identify all the accused persons by face and identifies accused Rajendra Yadav present in Court. Death, in my opinion, due to Hemorrhage and shock as a result of above-mentioned firearm injury, we have considered the submissions canvassed by the learned counsels for the parties. We have re appreciated the entire evidence led by the prosecution. We have also perused the material placed on record. It would emerge from the record that P.W. 5 Mahesh Yadav is the informant whose fardbeyan was recorded on 01.08.2011 at 09:00 p.m., wherein he has stated that at about 06:30 p.m., when he was returning on his motorcycle with one Anil Yadav and they came near the house of Satya Narain Mandal, they saw that all the accused named in the F.I.R. came at the place with deadly weapons and they started beating the informant near the house of Satya Narain Mandal. At that time, his brother Ramesh Yadav and Simindo Yadav came there with a view to rescue the informant. Thereafter, Badri Yadav dragged Ramesh Yadav near his house. At that time, Rajendra Yadav fired from his country-made rifle and the bullet hit the chest of the brother of the informant. When Simindo Yadav tried to intervene, all the other accused persons gave stick blows to him. At that time, the other persons came upon hearing the commotion and sound of firing. When they saw, they found that Ramesh Yadav had died because of the gun-shot injury. At this stage, if the deposition given by P.W. 1 Simindo Yadav is carefully examined, in his examination-in chief they said witness has only stated that when he was returning from Parsa Haat, he saw that near the house of Badri Yadav, all the named accused were present and Badri Yadav caught hold of Ramesh Yadav and ordered to shoot him. Thereafter, he was shot at. The said witness was also assaulted. He has further stated that the police were informed after one and a half hours of the occurrence and police came at the place of occurrence around 10-11 p.m. Thus, from the deposition of the said witness, it is revealed that this witness has not given the name of the accused who had fired on the deceased. At this stage, the deposition of P.W. 5 is also required to be examined carefully. P.W. 5 is the informant. The said witness in his examination-in-chief has also given the name of all the accused. He has stated that he also sustained injury because of the assault made by the accused. He has also stated that there was huge blood spilled over the earth and the clothes were also blood-stained. However, he is not aware whether the same were seized by the Investigating Officer or not. It is pertinent to note that merely because the witnesses are near relatives and interested witnesses, their deposition cannot be discarded simply on that very ground. However, deposition of said witnesses requires to be scrutinized closely and carefully. If a witness is trustworthy, his version can be accepted. However, in the present case, from the deposition of the aforesaid two witnesses and the conduct of the said witnesses, we are of the view that they are not trustworthy and there are major contradictions and inconsistencies in their deposition. Hence, we are of the view that they are projected as eye-witnesses, but their presence at the place of occurrence is doubtful. Further, P.W.11 is Dr. Binod Bisnoi who had conducted the post mortem of the dead body of the deceased. The said doctor conducted the post mortem on 09.05.2011 when he was posted at Sadar Hospital. The said witness has stated the time elapsed since death to be within 48 hours. He had conducted the post mortem at 10:15 a.m. Thus, the post mortem was conducted within 16 hours. However, the doctor has stated the time elapsed since death to be within 48 hours. Thus, we are of the view that the medical evidence does not support the version given by the so-called eye-witnesses that the occurrence took place on 08.05.2011 at about 06:30 p.m. From the evidence led by the prosecution, it is further revealed that the Investigating Officer did not seize the blood-stained soil from the place of occurrence nor the blood-stained clothes of the deceased were sent for necessary analysis to the Forensic Science Laboratory. Even there is no recovery/discovery of the weapon allegedly used in commission of the alleged incident from any of the appellants. It is further revealed that it is the specific defence of the appellants that they have been falsely implicated in the present case because of the election dispute. Thus, from the aforesaid evidence led by the prosecution, we are of the view that the prosecution has failed to prove the case against the appellants beyond reasonable doubt, despite which the Trial Court has recorded the impugned judgment of conviction and order of sentence. We have also gone through the reasoning recorded by the Trial Court and we are of the view that the Trial Court has committed grave error while passing the impugned judgment and order. Hence, the same deserve to be quashed and set aside. Accordingly, the impugned judgment of conviction dated 13.06.2018 and order of sentence dated 14.06.2018 passed by the learned 3rd Additional District and Sessions Judge, Araria, in connection with Sessions Trial No. 1151/2012, T.R. No.64/2017 (arising out of Bhargama P.S. Case No. 43/2011) are quashed and set aside. The appellants are acquitted of the charges levelled against them by the learned Trial Court. Since the appellant, namely Rajendra Yadav (in Cr. Appeal (D.B.) No. 940 of 2018) is in jail, he is directed to be released from custody forthwith, if his presence is not required in any other case. Rest all the appellants are on bail. They are discharged from the liabilities of their bail-bonds. he Patna High Court Legal Services Committee is, hereby, directed to pay ₹ 3,000 (Rupees Three Thousand) to Sandeep Kumar Pandey, learned Amicus Curiae as consolidated fee for the services rendered by him.

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Judgement Reviewed by – HARIRAGHAVA JP

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The High Court of Karnataka, while granting bail ruled that,the allegations against the petitioner are not sufficient to resist bail

Uncategorized , ,

CASE TITTLE: MADHUNIRANJAN SWAMY M. S. V STATE OF KARNATAKA

CASE NO: CRIMINAL PETITION NO. 4300 OF 2024

DATED ON: 21ST DAY OF MAY, 2024

QUORUM: JUSTICE S RACHAIAH

FACTS OF THE CASE:

The petitioner is before this Court seeking grant of anticipatory bail in Crime No.0020/2024 of Women Police Station, Tumakuru, registered for the offences punishable under Sections 498A, 342, 417, 109, 506, r/w Section 34 of Indian Penal Code (for short ‘IPC’) and Section 4 of the Dowry Prohibition Act, 1961. the complainant is the wife of petitioner and their marriage was solemnized about two and a half years ago. Petitioner is a Dentist by profession and he is working in Malaysia. After marriage, petitioner went to Malaysia by assuring the complainant that he would take her to Malaysia after one year, however, he did not return to India. Further, while going to Malaysia, he had taken an amount of Rs.5,00,000/ from the complainant’s father. Thereafter, the petitioner has neither called the complainant nor taken her to Malaysia. The in-laws and other family members of the petitioner were not taking care of the complainant and the complainant was not getting satisfactory answers when she asked about the whereabouts of the petitioner. Having suspected the act of the petitioner, complainant had lodged a complaint against the petitioner and her in-laws and the same is registered in FIR No.0020/2024 by the Women Police Station, Tumakuru.

LEGAL ISSUES:

Whether the bail application of the petitioner may be considered and may be enlarged on bail?

LEGAL PROVISIONS:

Sections 498A of indian penal code, Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine.”

Section 342 of the Indian penal code, talks about punishment for wrongful confinement

Section 417 of Indian penal code, talks about cheating.

Section 109 of Indian penal code, talks about abetment

Section 506 of indian penal code, talks about criminal intimidation

 Section 34 of Indian Penal Code talks about acts done by several person in furtherance of common intension

Section 4 of the Dowry Prohibition Act, 1961, talks about penalty for demanding dowry

CONTENTIONS OF APPELLEANT:

 The petitioner through their counsel submitted that petitioner has been falsely implicated in the matter and allegation against the petitioner was baseless.the counsel further submitted that Petitioner was coming to India frequently and was staying with the complainant. Due to some unavoidable circumstances, he could not take her to Malaysia where he is working. In the meanwhile, a false complaint has been registered against the petitioner family members. counsel further submitted that if bail is granted, the matter is likely to be settled between the parties. Petitioner would certainly go to India and have some negotiations with the complainant. the counsel also submitted that the offences alleged are neither punishable with death nor imprisonment for life. The petitioner is the permanent resident of the address mentioned in the cause title to the petition and he is ready and willing to abide by any of the conditions that would be imposed by this Court. Hence,the counsel prays to allow the petition in the interest of justice.

CONTENTIONS OF THE RESPONDENT:

The respondent through their counsel submitted that the averments of the complaint clearly disclose demand and acceptance of dowry and also cruelty and harassment by the family members of the petitioner. The counsel further submitted that the averments further disclose that complainant has been cheated by the petitioner. The counsel also submitted that the averments made in the complaint attracts Section 498A and other provisions of IPC including Section 4 of the Dowry Prohibition Act. The counsel further submitted that petitioner is staying in Malaysia and there may be a chance of absconding or tampering the prosecution witnesses. Therefore, the petitioner is not entitled for grant of anticipatory bail. Hence, the counsel prays for dismissal of the petition.

COURTS ANALYSIS AND JUDGEMENT:

The court on Having heard the learned Counsel for the parties and after perusal of the complaint averments, the court observed that it is not in dispute that the petitioner was working in Malaysia as a Dental Doctor and he used to come to India frequently and staying with the complainant. The court opined that the allegations against the petitioner are not sufficient to resist bail further If suitable conditions are imposed, certainly, it would safeguard the apprehension of the prosecution. The court On a careful perusal of the offences mentioned in the FIR, it appears that, the offences are neither punishable with death or imprisonment for life. Hence,The court opined that the petitioner may be enlarged on bail subject to conditions which will take care of the apprehension expressed by the respondent counsel that the petitioner may abscond or may tamper or threaten the prosecution witnesses. Accordingly, The court allowed the petition, Further the court ordered The petitioner to be enlarged on bail in the event of his arrest in Crime No.0020/2024 of Women Police Station, Tumakuru. The court further directed the petitioner to appear before the Investigating Officer within one month from the date of receipt of this order and on his appearance, the Investigating Officer shall enlarge him on bail subject to the conditions, that The petitioner shall furnish the bond in a sum of Rs.2,00,000/- (Rupees Two Lakhs) with one surety for the like sum to the satisfaction of the Investigating Officer,further the court directwed the  petitioner to appear before the Investigating Officer as and when called for the investigation. The petitioner shall not threaten or tamper the prosecution witnesses.The court further directed that in case the petitioner violates any of the bail conditions as stated above, the prosecution will be at liberty to seek for cancellation of bail.

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judgement reviewed by: Sowmya.R

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