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The Appellate court must use the powers granted to it under Section 217 and 368 (b)(i) of the Cr.P.C to reverse conviction or pass an order for the retrial by a court of competent jurisdiction. This remarkable judgement was passed by the principal seat of Rajasthan High Court’s bench consisting of Justice Sandeep Mehta and Justice Kumari Prabha Sharma, that heard a jail petition filed by an accused  in the matter of Salim S/o Abdul Wahid V State,  [D.B. Criminal Appeal No. 65/2019].

The accused had been sentenced by the Trial court under sections 363, 363 A, 365, 370(4) of the IPC as well as Section 23 of the Juvenile Justice Act for the offence of kidnapping children and forcefully making them beg or work in households.

The case came to light when one of the victims, a 9 year old girl went missing and could not be found for 5 years. The victim was handed to the police after she confessed to the owner of the house where she was forcefully employed that she had been kidnapped and made to forcefully beg by the accused.When the accused was sentenced by the Trial Court in 2010, “Trafficking” was not defined under the IPC but it was done later in 2015 through an amendment under section 370 that 370(4) more specifically, in this case. The sentence for trafficking was therefore increased to that of life imprisonment.

The High Court therefore categorically opined, “We feel that no sooner had the child been traced and once she made pertinent allegations of trafficking her against the appellant continuing right upto the year 2015, the police should have applied the graver offence in the report under Section 173 Cr.P.C. i.e. Section 370(4) I.P.C. because by continuing to force the child into begging and as a child labourer, the accused definitely committed the offence of child trafficking as defined in Section 370(4) of the IPC. It appears that the Investigating agency erred on this count and so did the Public Prosecutor as well as the trial court. Neither specific charge under Section 370(4) IPC was framed against the accused-appellant nor the charge was amended to this effect even after the statement of the victim had been recorded on oath.

We are of the firm view that the trial court committed a blunder while framing charge and in failing to amend the charge suitably and without doing so, the appellant has been convicted for the offence under Section 370(4) IPC and has been awarded life imprisonment on that count”.

In light of the sentence passed by the Trial Court and the prayer of the accused to not apply Section 370 of the IPC retrospectively to him, the court held, “the appellate court while hearing an appeal against conviction can reverse the finding of the trial court and order for retrial by a court of competent jurisdiction. We are of the firm view that the facts of the case at hand warrant exercise of the powers conferred to this Court under Section 386 (b) (i) read with Section 217 Cr.P.C. In view of the grave facts noted above, in order to do complete justice to the victim as well as the accused, we feel it imperative to direct a retrial of the accused by exercising these powers conferred upon the appellate court by Section 386 Cr.P.C.

Accordingly, we hereby set aside the impugned judgment dated 13.12.2018 passed by the learned Additional Sessions Judge”

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A medical board needs to be set up in cases a pregnancy beyond 12 weeks need to be terminated, keeping in mind severe abnormalities of the foetus or danger to the life of the mother or child. The Kerala High Court in its single judge bench consisting of Justice P.V Asha allowed the termination of a pregnancy that exceeded the mandated 12 week limit  under the Medical Termination of Pregnancy Act, 1971, in the matter of Thushara George & Reby Jacob C v Union of India & Ors., [WP(C).No.24031 OF 2020(D)].

The petitioner was carrying a foetus, 23 weeks and 4 days old which suffered from severe abnormalities such as Double outlet ventricle, conditions of pulmonary artesia and perimembraneous ventricular septal defect, etc. in light of these medical conditions highlighted, the petitioner prayed for the termination of her pregnancy as the termination of a pregnancy that exceeds 12 weeks requires permission from the court, under section 5 of the Act.

The court laid down several questions to be answered by the medical board set up for this specific case before it permitted the termination. The questions laid down by the court were on the following lines, firstly, “Whether the continuance of the pregnancy would involve risk to the life of the pregnant woman or of grave injury to her physical and mental health”. Secondly, “Whether there is a substantial risk that if the child were born, it would suffer from such physical or mental abnormalities as to be seriously handicapped and if so, the nature of abnormalities”. And lastly, “Whether, having regard to the advanced stage of pregnancy, there is any danger (other than usual danger which arises even in spontaneous delivery at the end of full term) if the pregnant mother is permitted to terminate her pregnancy”.

The medical board after carrying out its diagnosis came to the conclusion that, “As per the USG findings the foetus is suffering from complex heart disease.(Double Outlet right ventricle with pulmonary atresia) which is usually associated with other systemic anomalies. The child if born is likely to suffer from serious physical & mental handicaps. MTP is recommended for Mrs. A. by the Medical Board based on above opinions”.

In light of the medical advice given by the board, the court permitted and mandated the pregnancy to be terminated at the earliest.

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High courts have been misusing the power granted to them under Article 226 of the constitution while passing judgements in cases that deal with public money and the SARFAESI Act. This remarkable judgement was passed by the Kerala High Court in its single judge bench consisting of Justice A.M. Badar, heard the petition filed by a few cashew industries seeking revival of their loan accounts in the matter of Sunitha Roy & Ors. V Canara Bank & Ors., [WP(C).No.5232 OF 2020(D)].

It was alleged that the outstanding liability of 1st petitioner is Rs.3,02,40,000/- and that of 2nd petitioner is Rs.6,63,50,000/- and of 3rd petitioner is Rs.5,07,65,000/ and they prayed for restructuration of their bank accounts as well as abeyance of all proceedings against them under the SARFAESI (Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest) Act, 2002. The respondents have alleged that the petitioners No.1 to 3 themselves have failed to avail the opportunity for restructuring their debt despite willingness on the part of the 1st respondent to do so. This allegation was made in light of the petitioners not co-operating with the 1st respondent Bank despite intimation. It is also argued that huge loan is outstanding and therefore, secured creditor is entitled to take action under the SARFAESI Act.

Lastly, It was further argued by the respondents that the writ petition is not maintainable as action under the SARFAESI Act has already been started for recovery of outstanding dues of the secured creditor. It was also brought to the notice of the court that the 4th petitioner is not holding any account with the 1st respondent Bank and therefore, this writ petition is bad due to misjoinder of parties.

The court opined that “It is a matter of serious concern that despite repeated pronouncement of this Court, the High Courts continue to ignore the availability of statutory remedies under the DRT Act and the SARFAESI Act and exercise jurisdiction under Article 226 for passing orders which have serious adverse impact on the right of banks and other financial institutions to recover their dues. We hope and trust that in future the High Courts will exercise their discretion in such matters with greater caution, care and circumspection”.

Further, the court also observed that “there was no justification whatsoever for the learned Single Judge to allow the borrower to bypass the efficacious remedy provided to him under Section 17 and invoke the extraordinary jurisdiction in his favour when he had disentitled himself for such relief by his conduct. The Single Judge was clearly in error in invoking his extraordinary jurisdiction under Article 226 in light of the peculiar facts indicated above. The Division Bench also erred in affirming the erroneous order of the Single Judge.

Loans by financial institutions are granted from public money generated at the tax payers expense. Such loan does not become the property of the person taking the loan, but retains its character of public money given in a fiduciary capacity as entrustment by the public. Timely repayment also ensures liquidity to facilitate loan to another in need, by circulation of the money and cannot be permitted to be blocked by frivolous litigation by those who can afford the luxury of the same. Petitioners have most efficacious remedy of challenging demand notices under Section 13(2) of the SARFAESI Act before the Debt Recovery Tribunal. It is not case of petitioners that the Bank has not acted in accordance with the provisions of the SARFAESI Act or in defiance of the fundamental principles of judicial procedure. No case for breach of principles of natural justice is also made out”.

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In the judgement of the recent case of Sabu Issac v. Antony Chacko (OP(C).No.123 OF 2020), dated 5-10-2020, the Kerala High Court, laid down that the plaintiff has no absolute right to withdraw from a suit in the Appellate stage. The judgment was given by Justice R. Narayana Pisharadi.

The facts of the case include that the plaintiff had instituted the suit O.S.No.266/2011 in the Sub Court, Alappuzha for granting a decree for cancellation of sale deed No.2930/2008 of S.R.O Pulinkunnu which was executed by the second defendant in favour of the first defendant. The decree for cancellation of that document was sought by the plaintiff on the ground that the second defendant had no property in survey No.60/1 which was mentioned in that document. The plaintiff had not raised any plea in the suit stating that he has no right, title or interest in the property which had been mentioned in the aforesaid document. The entire suit was filed entirely on the basis of the plaintiff’s apprehension that in future the defendant may raise a claim over the property which is adjacent to the property in survey No.60/1. Following the same, the defendant had filed a written statement in the suit O.S.No.266/2011, which stated or contended that the suit was not maintainable and that the plaintiff has got no property in the vicinity of the property covered by sale deed No.2930/2008.

Thus the plaintiff an application under Order XXIII Rule 1(3) of the Code of Civil Procedure, 1908 (for short ‘the Code’) praying that he may be permitted to withdraw from the two suits with the liberty to sue the defendant/defendants newly or afresh on the same subject matter. The reason stated was on the plea that the plaintiff’s counsel was of the opinion that there were defects in the framing of the suits and that the proper remedy ought to have been to file for declaration of the title of the disputed property and recovery of the possession. However, the defendant filed an application stating that the application was not maintainable and that there were not enough reasonable grounds.

Previously in the cases of Rathinavel Chettiar v. Sivaraman : (1999) 4 SCC 89, it had been held that the plaintiff cannot while abandoning a suit or abandoning a part of his claim, reserve himself the right to bring a fresh suit on the same cause of action. Even in the case of Sarguja Transport Service v. State Transport Appellate Tribunal: AIR 1987 SC 88 it was held that  In order to prevent a litigant from abusing the process of the court by instituting suit again and again on the same cause of action without any good reason, the Code insists that he should obtain the permission of the court to file a fresh suit after establishing either of the two grounds mentioned in sub-rule (3) of Rule 1 of Order XXIII. The principle underlying the above rule is founded on public policy.

Thus it was held that “it is now well-settled that there is restriction on the  right to withdraw from the suit at the appellate stage. The plaintiff has no absolute right, at the appellate stage, to withdraw from the suit.  An application made at the appellate stage to withdraw the suit cannot be allowed by the court if granting such permission would have the effect of depriving or destroying or nullifying or annulling any right which has come to be vested with the defendant under the decree. The court shall keep in mind the fact that, when permission is granted to withdraw from the suit with liberty to file a fresh suit, the parties are placed in the same position as they would have been, had the suit not been instituted at all.

It is being further held that “In the instant case, while granting permission to the plaintiff to withdraw from the suits, the appellate court has not considered whether any right had accrued in favour of the defendant by the dismissal of the suits by the trial court and by granting permission to withdraw from the suits, whether the defendant would be deprived of any such right.  Even a decree dismissing the suit may create right in favour of the defendant (See Mary Teacher v. Varghese : 2017(1) KHC 830 : 2017(1) KLT 840). The appellate court has considered the applications filed by the plaintiff as if they were filed at the trial stage.  There is also no clarity in the impugned orders passed by the appellate court as to whether it was on any ground under clause (a) or clause (b) of Rule 1(3) of Order XXIII the permission to withdraw from the suit was granted. In such circumstances, it has become necessary to remand the matter to the appellate court for fresh consideration of the applications filed by the plaintiff.”
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The National Consumer Disputes Redressal Commission (NCDRC) in M/S Pyaridevi Chabiraj Steels Pvt. Ltd. V. National Insurance Company Ltd. & Ors. [Consumer Case No. 833 of 2020]  held that for determining pecuniary jurisdiction of the Consumer for a and the value of the goods “paid” as a consideration has to be taken and not value of goods or services “purchased”. It was observed by the court that the case being governed under the Consumer Protection Act, 1986, NCDRC would have jurisdiction in the matter since pecuniary jurisdiction thereunder was determined by taking the “value of the goods or services and compensation”. Meaning thereby that the value of the goods or services as also the compensation would be added to arrive at a conclusion as to whether the National Commission has the jurisdiction or not.  It was further observed by the court that under the new law, the NCDRC has jurisdiction to entertain complaints where the “value of the goods or services paid” as consideration exceeds R. 10,00,00,000.

 

It was held that, “It appears that the Parliament, while enacting the Act of 2019 was conscious of this fact and to ensure that Consumer should approach the appropriate Consumer Disputes Redressal Commission whether it is District, State or National only the value of the consideration paid should be taken into consideration while determining the pecuniary jurisdiction and not value of the goods or services and compensation, and that is why a specific provision has been made in Sections 34 (1), 47 (1) (a) (i) and 58 (1) (a) (i) providing for the pecuniary jurisdiction of the District Consumer Disputes Redressal Commission, State Consumer Disputes Redressal Commission and the National Commission respectively”

 

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