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Cow Slaughter case: Supreme Court uphold High Court’s decision of quashing FIR, considering completely Illegal

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Cow Slaughter case: Supreme Court uphold High Court’s decision of quashing FIR, considering completely Illegal

CASE TITLE- Joshine Antony Vs Smt. Asifa Sultana & Ors.

CASE NUMBER- Criminal Appeal No(S). 1046 Of 2024 (@ Special Leave Petition (Crl.) No(S). 911 Of 2019)

DATED ON- 20.02.2024

QUORUM- Hon’ble Justice Abhay S. Oka and Hon’ble Justice Ujjal Bhuyan

FACTS OF THE CASE

The fifth respondent, who was the Assistant Director of the Veterinary Department, on information received from the appellant, entered the factory premises of the first to third respondents and opened two packets kept in ice and collected a sample of meat from the packets. The sample was put in the thermocol box and packed by putting ice around it. The seized sample was sent for analysis. The sample was collected not by a police officer but by the fifth respondent, who was the Assistant Director of the Veterinary Department. On the same day there was one more panchnama drawn in presence of an Assistant Sub-Inspector. The said panchnama records that the sample was already collected and has been sent for testing to the expert. It also records that the meat was stored in a cold storage, which was not functioning. Therefore, the seizure of three rooms and meat packets was made. The police officer did not collect any sample for sending it for analysis. Initially, the First Information Report was filed for offences punishable under Sections 420 and 429 of the Indian Penal Code, 1860 and later on, the provisions of the Karnataka Prevention of Cow Slaughter and Cattle Preservation Act, 1964 were attracted. The High Court has quashed the First Information Report. Therefore, the appeal was sought before this court.

LEGAL PROVISIONS

Section 420 of The India Penal Code, 1860

Section 429 of The Indian Penal Code, 1860

Section 10 of Karnataka Prevention of Cow Slaughter and Cattle Preservation Act, 1964

CONTENTIONS OF THE APPELLANT

The learned senior counsel appearing for the appellant submitted that huge quantity of meat of cow was found in the custody of the first to third respondents and even before the investigation could proceed, that the High Court has interjected. He submitted that the offences under Sections 4 and 5 of the 1964 Act were attracted. various documents were also presented on record including the panchnama drawn. He submitted that the packets stored in the cold storage of the first to third respondents were deliberately labelled as “Super Fresh Frozen Boneless Buffalo Meat” and that is how Section 420 of the IPC was applied by the police. He further submitted that the sample collected from the cold storage of the first to third respondents was sent for DNA test, which revealed that the meat was of cow. The fifth respondent was duly authorized officer under Section 10 of the 1964 Act and he had authority to enter any premises and to inspect the said premises as he had a reason to believe that the offence under the 1964 Act has been committed. He submitted that the High Court has virtually conducted a mini trial.

CONTENTIONS OF THE RESPONDENT

The contentions of the learned counsel appearing on behalf of the respondent is not explicitly given. However, the court heard the contentions of the respondent No. 1- No.3

COURT’S ANALYSIS AND JUDGEMENT

The court analyzed the act of collection of sample by the Assistant Director was completely illegal. It is this sample which was sent for chemical analysis. Thus, the entire case of the prosecution is based on unauthorized and illegally collected sample of the meat. Therefore, the High Court was right when it interfered by quashing the First Information Report. Thus, the court found no error in the view taken by the High Court and the appeal got dismissed.

“PRIME LEGAL is a full-service law firm that has won a National Award and has more than 20 years of experience in an array of sectors and practice areas. Prime legal fall into a category of best law firm, best lawyer, best family lawyer, best divorce lawyer, best divorce law firm, best criminal lawyer, best criminal law firm, best consumer lawyer, best civil lawyer.”

Judgement Reviewed By- Shreyasi Ghatak

Click here to read the Judgement

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Cow Slaughter case: Supreme Court uphold High Court’s decision of quashing FIR, considering completely Illegal

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Cow Slaughter case: Supreme Court uphold High Court’s decision of quashing FIR, considering completely Illegal

CASE TITLE- Joshine Antony Vs Smt. Asifa Sultana & Ors.

CASE NUMBER- Criminal Appeal No(S). 1046 Of 2024 (@ Special Leave Petition (Crl.) No(S). 911 Of 2019)

DATED ON- 20.02.2024

QUORUM- Hon’ble Justice Abhay S. Oka and Hon’ble Justice Ujjal Bhuyan

FACTS OF THE CASE

The fifth respondent, who was the Assistant Director of the Veterinary Department, on information received from the appellant, entered the factory premises of the first to third respondents and opened two packets kept in ice and collected a sample of meat from the packets. The sample was put in the thermocol box and packed by putting ice around it. The seized sample was sent for analysis. The sample was collected not by a police officer but by the fifth respondent, who was the Assistant Director of the Veterinary Department. On the same day there was one more panchnama drawn in presence of an Assistant Sub-Inspector. The said panchnama records that the sample was already collected and has been sent for testing to the expert. It also records that the meat was stored in a cold storage, which was not functioning. Therefore, the seizure of three rooms and meat packets was made. The police officer did not collect any sample for sending it for analysis. Initially, the First Information Report was filed for offences punishable under Sections 420 and 429 of the Indian Penal Code, 1860 and later on, the provisions of the Karnataka Prevention of Cow Slaughter and Cattle Preservation Act, 1964 were attracted. The High Court has quashed the First Information Report. Therefore, the appeal was sought before this court.

LEGAL PROVISIONS

Section 420 of The India Penal Code, 1860

Section 429 of The Indian Penal Code, 1860

Section 10 of Karnataka Prevention of Cow Slaughter and Cattle Preservation Act, 1964

CONTENTIONS OF THE APPELLANT

The learned senior counsel appearing for the appellant submitted that huge quantity of meat of cow was found in the custody of the first to third respondents and even before the investigation could proceed, that the High Court has interjected. He submitted that the offences under Sections 4 and 5 of the 1964 Act were attracted. various documents were also presented on record including the panchnama drawn. He submitted that the packets stored in the cold storage of the first to third respondents were deliberately labelled as “Super Fresh Frozen Boneless Buffalo Meat” and that is how Section 420 of the IPC was applied by the police. He further submitted that the sample collected from the cold storage of the first to third respondents was sent for DNA test, which revealed that the meat was of cow. The fifth respondent was duly authorized officer under Section 10 of the 1964 Act and he had authority to enter any premises and to inspect the said premises as he had a reason to believe that the offence under the 1964 Act has been committed. He submitted that the High Court has virtually conducted a mini trial.

CONTENTIONS OF THE RESPONDENT

The contentions of the learned counsel appearing on behalf of the respondent is not explicitly given. However, the court heard the contentions of the respondent No. 1- No.3

COURT’S ANALYSIS AND JUDGEMENT

The court analyzed the act of collection of sample by the Assistant Director was completely illegal. It is this sample which was sent for chemical analysis. Thus, the entire case of the prosecution is based on unauthorized and illegally collected sample of the meat. Therefore, the High Court was right when it interfered by quashing the First Information Report. Thus, the court found no error in the view taken by the High Court and the appeal got dismissed.

“PRIME LEGAL is a full-service law firm that has won a National Award and has more than 20 years of experience in an array of sectors and practice areas. Prime legal fall into a category of best law firm, best lawyer, best family lawyer, best divorce lawyer, best divorce law firm, best criminal lawyer, best criminal law firm, best consumer lawyer, best civil lawyer.”

Judgement Reviewed By- Shreyasi Ghatak

Click here to read the Judgement

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Bombay High Court: A child cannot be utilized as a toy, rather must be considered as a human being

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Bombay High Court: A child cannot be utilized as a toy, rather must be considered as a human being

Background

The couple, who were both US citizens, was married in California. The infant was born in Paris in February of 2019. But shortly afterward, their relationship soured, and the father moved the child to Goa after receiving an ex-parte custody order from a Californian court. The mother then arrived in India, and the divorced couple proceeded to seek for custody before the family court in Mapusa.  In its ruling, the High Court stated that it had changed a family court’s June 2023 ruling in October 2023, giving the father visitation rights while maintaining the child’s mother’s custody.  However, because of the child’s illness, the father was unable to use his visitation rights. As a result, the father submitted a second application to the family court in Mapusa asking for custody of the child throughout the summer break from school. In an order issued on May 8 of this year, the family court stated that the child’s illness precluded the father from obtaining visitation rights. As a result, it gave him seven weeks of summer break custody of the child while giving the mother only five. In opposition, the mother then filed a move with the High Court.  The father was appropriately given extra time by the family court since the High Court rejected his argument that he may receive compensation for his lost visitation privileges.

Matter of concern

It is to be decided to whom the child should be attributed custody.

Court’s observation and decision

The father was appropriately given extra time by the family court since the High Court rejected his argument that he may receive compensation for his lost visitation privileges. The judge declared that it was not in the best interests of the five-year-old child for the family court to have granted the father seven weeks of custody of the youngster. A mother’s presence is extremely important for a child at this vulnerable age. But the father’s requirements must also be taken into account while determining custody and visitation privileges, the court stated. The solitary court stated that the child’s best interests must be taken into account and that he has the right to spend the holiday with both of his parents. The Court concluded that it would be reasonable to distribute the vacation time equally amongst parents. In order to preserve and strengthen the relationship between family members, parents and children have the right to use such vacation time to spend quality time with their respective mothers, fathers, and relatives. The order stated that the child should have the chance to get to know both the mother’s and father’s family. Therefore, the Court held that the vacation of 11 weeks could be divided equally between mother and father. It, therefore granted five weeks’ custody to each of the parents. The court observed that, in a child custody case that a child involved in a custody dispute cannot be utilised as a toy by his parents but rather must be considered as a human being and his interests must be given primary significance.

“PRIME LEGAL is a full-service law firm that has won a National Award and has more than 20 years of experience in an array of sectors and practice areas. Prime legal fall into a category of best law firm, best lawyer, best family lawyer, best divorce lawyer, best divorce law firm, best criminal lawyer, best criminal law firm, best consumer lawyer, best civil lawyer.”

Written By- Shreyasi Ghatak

 

 

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Supreme court decides on Moratorium’s scope: Individuals are held liable along with Director

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Supreme court decides on Moratorium’s scope: Individuals are held liable along with Director

CASE TITLE- Ansal Crown Heights Flat Buyers Association (Regd.) Vs M/S. Ansal Crown Infrabuild Pvt. Ltd. & Ors.

CASE NUMBER- Civil Appeal No(S). 4247 Of 2023

DATED ON- 17.01.2024

QUORUM- Honourable Justice Abhay S. Oka and Honourable Justice Ujjal Bhuyan

FACTS OF THE CASE

A complaint was filed by the homebuyers before the National Consumer Disputes Redressal Commission against the Developer and NCDR directed the developer to complete the project in all respects and handover the possession of the allotted flats/apartments to the members of the Association of the homebuyers within the time specified. A direction was issued giving an option to the homebuyers, that if they are not interested to wait any more for taking possession of the allotted Apartment and they want refund of their deposited amount with interest @9% p.a. The appellants sought to execute the directions of the National Commission not only against the company but also against the several individuals. By the impugned orders, the National Commission held that the decree cannot be executed against the company due to the operation of the moratorium under Section 14 of the IBC. Thereafter, the National Commission observed that in view of moratorium against the company, it would not be appropriate to proceed in the same execution against the opposite party Nos. 2 to 9. The other opposite parties were not parties in the main complaint. Therefore, the present appeal was sought.

ISSUE RAISED

Whether opposite party Nos. 2 to 9 (the respondent Nos. 2 to 9) to the execution are otherwise liable?

LEGAL PROVISIONS

Section 9 of the Insolvency and Bankruptcy Code, 2016

Section 14 of the Insolvency and Bankruptcy Code, 2016

CONTENTIONS OF THE APPELLANT

The learned counsel for the appellant contented that under the provisions of the IBC, there is no prohibition on proceeding against the directors/officers of the company, which is the subject-matter of moratorium under Section 14 of the IBC. A reliance is placed by the appellant on the second proviso to sub-Section (1) of Section 32A of the IBC and a decision of this Court in the case of P. Mohanraj vs. Shah Bros. Ispat (P) Ltd and Anjali Rathi and others vs. Today Homes and Infrastructure Pvt. Ltd. And Others. Therefore, the view taken by the National Commission is erroneous.

CONTENTIONS OF THE RESPONDENT

The learned counsel for the respondent contented that there is no liability fastened on the opposite party Nos. 2 to 9. It is submitted that the National Commission has held that the opposite parties were not parties to the main complaint. Referring to the case of Anjali Rathi, the Court permitted the appellants to proceed against the promoters of the company, which was subject to moratorium only because there was a settlement arrived at between them before this Court. He further submitted that these opponents cannot be held liable. National Commission has not made any adjudication on the question whether the opposite parties in the execution application were under an obligation to abide by the directions issued against the company. There is no finding recorded by the National Commission that moratorium will apply to the directors/officers of the company.

COURT’S ANALYSIS AND JUDGEMENT

The court analyzed that, only because there is a moratorium under Section 14 of the IBC against the company, it cannot be said that no proceedings can be initiated against the opposite party Nos. 2 to 9 for execution, they are also liable to abide by and comply with the order, which is passed against the company. The protection of the moratorium will not be available to the directors/officers of the company. The appeal was partly allowed and the court set aside the impugned judgments and orders and remit the execution application to the National Commission.

“PRIME LEGAL is a full-service law firm that has won a National Award and has more than 20 years of experience in an array of sectors and practice areas. Prime legal fall into a category of best law firm, best lawyer, best family lawyer, best divorce lawyer, best divorce law firm, best criminal lawyer, best criminal law firm, best consumer lawyer, best civil lawyer.”

Judgement Reviewed By- Shreyasi Ghatak

Click here to read the Judgement

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SC SET ASIDE THE IMPUGNED JUDGEMENT PASSED BY THE HIGH COURT IN RESPECT OF DYING DECLARATION

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Case Name: NAEEM. Versus STATE OF UTTAR PRADESH.

Case Number: CRIMINAL APPEAL No. 1978 of 2024

Dated: March 05, 2024

Quorum: Honourable Justice B.R. Gavaskar & Justice Sandeep Mehta

FACTS OF THE CASE:

The appeals challenge the judgement and order dated December 17, 2019, passed by the Division Bench of the High Court of Judicature at Allahabad in Criminal Appeal Nos. 1589 of 2018 and 7393 of 2017. The appeals relate to the case of Shahin Parveen, who was admitted to the District Hospital with 80% deep thermal and facial burns on 1st December 2016. She claimed that she was set ablaze by the accused/appellants who pressured her into entering the profession of immoral trafficking and prostitution. A First Information Report was registered at Police Station Katghar, District Moradabad, and Shahin was admitted to Safdarjung Hospital, New Delhi, where she died at 7:55 pm. The case was altered to the offence punishable under Section 302 of the Indian Penal Code, 1860.

The prosecution case alleged that after the death of Shahin’s husband two years prior, the accused/appellants began pressuring her into entering the profession of immoral trafficking and prostitution. The accused/appellants caught hold of Shahin and poured kerosene on her, igniting a matchstick and throwing it at her. The accused/appellants surrounded her, and she was set ablaze. Her neighbours put out the fire, and her mother and brother, Islam @ Babli, took her to the hospital.

The deceased, who had been a victim of a dispute with her husband, was allegedly set on fire by two accused individuals. The incident occurred on December 1, 2016, and the deceased’s dying declaration revealed that the dispute was related to their shared residence. The accused poured kerosene on the deceased, who was later taken to a hospital in New Delhi. The accused pleaded not guilty and claimed to be tried. The prosecution examined eight witnesses, with Papi @ Mashkoor claiming he was absent at the time and the deceased committed suicide. The trial court convicted the accused and sentenced them to life imprisonment and a fine. The accused appealed to the High Court, which dismissed their appeal and affirmed the conviction and sentence.

LEGAL PROVISIONS:

  1. INDIAN PENAL CODE, 1860;

● Section-34 (Acts done by several persons in furtherance of common intention) – When a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone.

● Section 302 (Punishment for Murder): Whoever commits murder shall be punished with death, or imprisonment for life, and shall also be liable to a fine.

● Section-307 (Attempt to murder): Whoever does any act with such intention or knowledge, and under such circumstances that, if he by that act caused death, he would be guilty of murder, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; and, if hurt is caused to any person by such act, the offender shall be liable either to imprisonment for life, or to such punishment as is hereinbefore mentioned.

● Attempts by Life Convicts: When any person offending under this section is under sentence of imprisonment for life, he may, if hurt is caused, be punished with death.

  1. INDIAN EVIDENCE ACT 1872;

● Section 32(1) [ Dying Declaration]: This section states that when a statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person’s death comes into question. Such statements are relevant whether the person who made them was or was not, at the time when they were made, under expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question.

ISSUES RAISED:

  1. Whether the dying declaration is cogent, trustworthy, and reliable to base the conviction on the accused or frivolous and vexatious.
  2. Whether the dying declaration can be considered as sole evidence for the conviction of the accused persons.
  3. whether the conviction of all three accused is tenable or not.

CONTENTION OF APPELLANT:

Shri Mohd. Siddiqui, the learned counsel for the appellants, submits that the conviction is based only on the dying declaration of the deceased. He submits that the dying declaration is not free from doubt. It is submitted that the discharge slip would show that the deceased was discharged from the District Hospital, Moradabad, on December 1, 2016 at 5:00 pm. It is therefore impossible that the dying declaration could have been recorded between 8:48 pm and 9:15 pm. The learned counsel therefore submits that the said dying declaration cannot be said to be trustworthy, reliable and cogent so as to base the conviction solely on the same.

CONTENTION OF RESPONDENTS:

Shri Thakur, counsel for the respondent, submits that both the trial court and the High Court, on the correct appreciation of evidence, rightly convicted the accused and appellants, and as such, no interference would be warranted with the concurrent findings of the trial court and the High Court. The learned AAG submits that Raj Kumar Bhaskar, the then Naib Tehsildar, has deposed about the dying declaration. Shri Thakur submits that the dying declaration also contains the certification by Dr. A.K. Singh, Emergency Medical Officer, District Hospital, Moradabad, regarding the medical fitness of the victim both prior to and after recording the dying declaration.

COURT ANALYSIS AND JUDGEMENT:

The conviction in this case is based solely on the dying declaration, as per the law outlined in the Atbir v. Government of NCT of Delhi case. The court has held that a dying declaration can be the sole basis of conviction if it inspires the full confidence of the court, and if the deceased was in a fit state of mind at the time of making the statement, it was not the result of tutoring, prompting, or imagination. If the court is satisfied about the dying declaration being true and voluntary, it can base its conviction without further corroboration. The court has observed that if the dying declaration is true, coherent, and free from any effort to induce the deceased to make a false statement, there is no legal impediment to make it the basis of conviction, even if there is no corroboration.

The testimony of Raj Kumar Bhaskar, the then Naib Tehsildar, reveals that he was directed by the Tehsildar to record the statement of the victim, Shahin Parveen, at the District Hospital, Moradabad. He deposed that he was in full sense and understood the questions, and that none of the relatives of the deceased were present during the recording.

 

The dying declaration is deemed true and coherent, making it a reliable basis for conviction without independent corroboration. The victim’s statement reveals that the deceased’s motive is attributed to accused No. 1 Pappi @ Mashkoor, who allegedly poured kerosene on her and set her ablaze. The statement of Naeema and her brother Naeem, the wife of accused No. 1 Pappi @ Mashkoor, also reveals their assistance to her devar Pappi @ Mashkoor.

 

However, no specific role for how they assisted was found in the dying declaration. The court finds that the dying declaration can be the sole basis for maintaining the conviction of accused No. 1 Pappi @ Mashkoor, but in the absence of any specific role attributed to accused No. 2 Naeema and accused No. 3 Naeem, they are entitled to the benefit of doubt.

As a result, the court passed the following order:

(i) The criminal appeals of Naeem and Naeema, quashed and set aside, are allowed. The trial court’s conviction and sentence from October 24, 2017, and the High Court’s judgement from December 17, 2019, are quashed and set aside. The appellants are acquitted of all charges and are directed to be released immediately, unless required in any other case.

(ii) Criminal Appeal No. 1979 of 2022, qua appellant Pappi @ Mashkoor, is dismissed.

“PRIME LEGAL is a full-service law firm that has won a National Award and has more than 20 years of experience in an array of sectors and practice areas. Prime legal falls into a category of best law firm, best lawyer, best family lawyer, best divorce lawyer, best divorce law firm, best criminal lawyer, best criminal law firm, best consumer lawyer, best civil lawyer.”

Judgement Reviewed by- Abhishek Singh

Click here to view the full judgement: NAEEM. Versus STATE OF UTTAR PRADESH.

 

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