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Interim relief cannot be seeked for an International Arbitration Case: SC

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Case title: Ilwohnibrand Co. Ltd. V. Mahakali Food Pvt.Ltd and Ors.

Case no: Arbitration case No.of 2023

Dated on: 3rd April, 2024

Quorum: Hon’ble Justice Sushrut Arvind Dharmadikhari  and Hon’ble Shri Justice Devnarayan Mishra

Facts of the Case:

The petitioner had business relationship with the respondent no.1 to 3. A sale contract was entered into between the petitioner and the respondents on 18.09.2019 for supply of 2014 MT ‘ Full-Fat Soya Grits’. However, respondents committed a breach of contract wherein there was neither the quantity supplied according to the contract nor the quality. Even for the sub-standard material supplied by the respondent, the authorities conducted raid and sealed the premises of the petitioner. Petitioner notified the respondent about the breach. Respondent though admitted the supply of substandard quality under the contract and promised to compensate the petitioner but no such compensation was ever paid. Another contract was entered into between the petitioner and the respondent wherein respondent insisted for enhanced rate and issued proforma invoice and payment was duly made by the petitioner. However, respondent again committed breach of contract by not supplying the material as per the timeline mandated in the contract and in fact only supplied goods worth $1,42,500 despite receiving advance payment of $375,000 and thereafter respondent did not make any supply and stopped answering the calls. Again, with malicious intent, respondents communicated that it shall pay the balance amount to the petitioner, but no heed has been paid. Efforts to resolve the dispute failed since the respondent did not want to and stopped making communication with the petitioner. Since, the contract between parties provides for resolution of dispute by way of arbitration to be conducted in India, the petitioner filed petition under the Section 9 (1)(i) of the Conciliation Act of 1996 before the Commercial Court which was dismissed for want of jurisdiction with liberty to the petitioner to approach appropriate forum. Hence, the present petition had been filed. Shri Aniket Naik, appointed as Amicus Curiae submitted that petitioner has already approached the Commercial Court under Section 9 of the Act of 1996 seeking interim protection. However, learned Commercial Court dismissed the application filed by the petitioner holding the same as not maintainable for want of jurisdiction as the matter pertains to international commercial arbitration and not domestic arbitration.

Contentions of the Appellant:

Learned counsel for the petitioner submitted that evidence of breach committed by the respondent are available and, therefore, an order of interim protection securing the amount involved in the arbitration is required to be passed since despite sending several reminders, respondent kept making false promises, but neither exported the balance shipment nor compensate for the delivery of sub-standard quality of products thereby putting the petitioner to suffer irreparable loss. In terms of section 2(e) and (f) of the act of 1996, the petition can by heard by this court being the jurisdictional court and the present arbitration being an international commercial arbitration. In an identical situation the apex court , in S.D. Containers V. Mold Tek Packaging Ltd., had remanded the case to the court to be tried under its original civil jurisdiction where the court held that while invoking its powers under clause (9) of the letter patent read with rule 1(8) of chapter IV of the rules of the exercise its extra ordinary civil jurisdiction. Hence, the petition which is made under Section9 of the Act 1996 is exclusively triable by this court, therefore, the present petition to be deleted from the category of  the arbitration case and be listed under  the relevant category before appropriate single bench.

Contentions of the Amicus Curiae:

Petitioner has already approached the commercial court under Section 9 of the Act of 1996 seeking interim protection. But the court dismissed saying that the same is not maintainable as it pertains to international arbitration. Thereafter,

Petitioner has preferred the present application under section 9 (2)(1)(f) of the act of 1996 which is not maintainable in the view the fact that as per the Chapter 2 Rule 3 of Rules, 2008 an application under section 11 of the act of 1996 shall be registered as arbitration case which deals with the appointment of the arbitrator.  Court to sub-rule 8 Rule 10 Chapter 2, of the High Court rules 2008 which says that these cases can be considered as a  Miscellaneous Civil Case and also to be registered as a Miscellaneous Civil Case if they do not fall under the ambit of the first seven clauses which is not interlocutory to any proceedings. It is submitted that petitioner can very well file Miscellaneous Civil Case in terms of sub-rule 8 of Rule 10 of Chapter 2 of Rules of 2008, which can be entertained and appropriate orders can be passed.

Legal Provisions:

Section 9 of the Arbitration and Conciliation Act-  Seeking interim reliefs before, or during the arbitral proceedings, or at any time after the passing of the award but before it is enforced.

Section 11 of the Arbitration and Conciliation Act- Appointment of the arbitrator.

Sub-rule 8 of Rule 10 of Chapter 2 of the High Court of Madhya Pradesh rules of 2008- Filing miscellaneous civil cases.

Issues:

Whether the petitioner is entitled to seek interim measure of protection and securing the amount involved in the arbitration   under section 9 of Arbitration act 1996 and section 10 of the commercial courts act,2015?

Courts Judgement and Analysis:-

The present petition itself is not maintainable on twin grounds:

(i) Firstly , the petitioner resorting to the liberty granted by the Commercial Court has filed present petition under Section 9 r/W Section 2(1)(f) of the Act of 1996 seeking interim protection before this Court which cannot be entertained by this Court.

(ii) Secondly, as rightly pointed out by Amicus Curiae, in terms of Chapter 2 Rule 3 of the Rules of 2008, an application Section 11 of the Act of 1996 shall be registered as an arbitration case which deals with appointment of Arbitrator which is not the case herein.

In the considered opinion of this Court, looking to the nature of case and the relief as sought for by the petitioner, the same does not fall within the category of an Arbitration Case. Rather the same ought to have been filed as a Miscellaneous Civil case falling within the ambit and scope of any other application of civil nature, not falling under any of the specified categories in terms of sub-rule 8 of Rule 10 of Chapter 2 of Rules of 2008. In view of the above   discussion, its hereby rejected. Accordingly, the present petition is hereby dismissed with liberty to the petitioner to file miscellaneous civil case in terms of sub-rule 8 of Rules of 2008.

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Judgement Reviewed By- Parvathy P.V.

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“Women in Prison: Understanding Female Incarceration”

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Introduction

Women who have committed crimes and are housed in correctional facilities are known as female inmates. The experiences of female and male inmates may differ due to a variety of circumstances, including gender-specific requirements, vulnerabilities, and obstacles encountered within the criminal justice system. To successfully meet the needs of women inmates and maintain their well-being throughout their incarceration, it is imperative to take into account the unique conditions of this population.625,000 women and children were jailed in correctional facilities worldwide as of 2013, and the number of women incarcerated was rising on all continents.The primary table with a column for the historical and present percentage of female inmates is part of the list of nations ranked by incarceration rate. Men make up the great bulk of those behind bars worldwide. Around the world, criminal justice systems have handled incarcerated women differently from the beginning of the process until the end, including during sentencing and the application of punitive measures. This discrepancy is mostly caused by real demographic differences in the seriousness of crimes committed by the prison populations of men and women, as well as the enduring notion in society at large that female offenders are more rehabilitee than their male counterparts. Despite making up a smaller percentage of all prisoners worldwide, the number of women behind bars is increasing at a rate double that of men. The most majority are detained in China, Russia, and the United States. of persons behind bars worldwide, including women. The increasing number of women incarcerated worldwide can be partially attributed to changes in sentence and parole regulations for female offenders. The global trend of gender-blind sentencing in criminal justice systems has led to a marked rise in the imprisonment rate of women. Women’s incarceration rates are further increased by high rates of re-entry and re-offending, which are also caused by the concurrent abolition of parole and harshening of punishments for parole violations in many parts of the world.

Crimes by women

Almost 3 lakh women are detained every year for offenses against the Special and Local Laws (SLL) and the Indian Penal Code (IPC). Many of these women are detained for offenses including rioting, abuse by husband’s family members, and Prohibition Act violations. Combining statistics for both convicted and pending cases reveals that 37% of women are serving jail sentences for murder, with 15% of them being incarcerated for dowry deaths.

According to the State List in the Seventh Schedule of the Indian Constitution, State Governments are in charge of all matters pertaining to prisons, reformatories, borstals, and other similar institutions, as well as the people housed there. They also handle agreements with other States regarding the sharing of prisons and other facilities. The following laws provide the guidelines for imprisonment:

• Indian Penal Code, 1860

• Prison Act, 1894

• Prisoner’s Act, 1900

• Identification of Prisoner’s Act, 1920

• Exchange of Prisoner’s Act, 1948

• Transfer of Prisoner’s Act, 1950

• Prisoner (Attendance in Court) Act, 1955

• Probation of Offenders Act, 1958

• Code of Criminal Procedure, 1973

• Repatriation of Prisoner’s Act, 2003

• Model Prison Manual, 2003

• Model Prison Manual, 2016

In 2007, a National Policy on Prison Reforms and Correctional Administration was formulated, outlining several guidelines pertinent to female inmates, such as safeguarding their human rights and preventing the prolongation of pending cases. “Women prisoners shall be protected against all exploitation,” the statement adds. Work and treatment plans must be developed for them taking into account their unique requirements.

National Model Prison Manual, 2016

The 2016 Model Prison Manual has been updated with a focus on computerization in prisons, special provisions for women inmates, after-care services, prison inspections, the rights of death row inmates, repatriation of foreign prisoners, and a greater emphasis on correctional staff.

Special procedure for arrest of women

The Criminal Procedure Code (CrPC) has specific provisions pertaining to the arrest of women. Specifically, it is forbidden to arrest women after sunset or before sunrise, unless the Judicial Magistrate First Class has granted permission beforehand. Additionally, only female officers must conduct searches on female arrestees, taking into account their dignity. Ideally, the arresting police officer should not be wearing their uniform when making the arrest of the woman in order to lessen the stigma attached to being incarcerated. Additionally, arrangements for the woman’s minor children’s custody at the time of her arrest should be arranged. She needs to put her requests in writing, including the name and contact information of the person she wants her minor children to stay with while she is incarcerated. Be closely adhered to. If the child cannot accompany the mother to prison and no family or friends are available to care for him or her, the youngster should be placed in a child care institution.

Addressing violence

Body searches need to be carried out in accordance with established protocols. The least invasive method should be used when searching female inmates if it is deemed suitable under the circumstances. The type of search that will take place and the rationale behind it should be made evident to the prisoner. To prevent total nudity at a given time, strip searches should be carried out in two separate processes, with the top and lower bodies being searched sequentially. Searches of the body cavities should be avoided wherever possible. CCTV cameras ought to be utilized with consideration for the privacy and dignity of female detainees. For each prisoner, a documented record detailing the nature and frequency of searches should be maintained and be open for inspection by representatives. Human rights, sexual misconduct, and gender issues must be made clear to all employees that handle, hold, or question prisoners.

Living arrangements

Three changes of clothes, two towels, and three sets of their usual undergarments should be provided to female inmates serving sentences of no more than six months in jail. For women serving sentences longer than six months, this amount will rise to five sets of clothes, three towels, and five sets of the usual undergarments. Prisoners ought to have the freedom to select their preferred style of dress from a selection of possibilities. These should, at the at least, consist of light-colored—not necessarily white—sarees with blouses and petticoats, kurtas with salwar and dupattas, and shirts with trouser/long skirts.

For a year following birth, women in the post-natal phase must live apart from other people in order to uphold a specific level of hygiene and shield the unborn child from infections and other illnesses. Furthermore, In addition, it is necessary to keep sick female inmates apart for their own health.

Improvement of health and nutrition

Women must undergo thorough health screenings upon admission, taking into account their rights to confidentiality, privacy, and dignity, as well as their ability to decline screening. This will assist in determining any health concerns, provide appropriate care, and creating a customized food and health plan for the prisoner. Testing needs to be done routinely after that. Comprehensive medical examinations should be performed annually, on a monthly basis, and inmates should always have access to a female medical officer for examinations, tests, treatments, and other needs. Women should have regular papanicolaou testing and screening for gynecological and breast cancers. Should the female medical officer not be available, the inmate will be moved to the closest hospital with a female physician on staff. Rather than being held in prison, women with mental health concerns should be moved to appropriate institutions. Female psychologists and counselors should be available to prisoners at least once a week, or more often if necessary. Particularly, first-time offenders need to receive counseling upon admission in order to reduce recidivism. Women incarcerated should be provided with free, maximum-quantity, sterilized sanitary pads based on their needs. It is necessary to provide information about HIV, STD, and other gender-specific disease prevention strategies. To efficiently handle crises and minor concerns, jail staff members are required to complete mandatory training in gender-specific needs of women, first aid, and basic medicine.

Children of women prisoners

If the woman has a kid, consideration should be given to her caregiving responsibilities when choosing the jail, and the woman should be given the option to choose the prison as much as possible. It is imperative that children incarcerated are not made to feel like criminals. It is the responsibility of the administration to make sure that the facilities are suitable for the children in their care. To make sure that kids incarcerated have access to the necessities of education, daycare, entertainment, and a healthy lifestyle, NGOs, schools, and pediatricians can get involved. Prison administration will make every effort to establish an environment that is as similar to home as feasible for youngsters. As close as feasible to that of an incarcerated child. For example, spacious rooms with enough natural light, minimal security measures, an outdoor play area, the chance to interact with peers outside of prison if it isn’t possible within, etc. Regular inspections of these facilities are required by the Board of Visitors. The greatest amount of time permitted for female inmates to spend with their children while they are incarcerated must be given to these women. In order to track their physical development and state of both physical and mental health, children should be fed a particular diet and see a Lady Medical Officer on a monthly basis. Depending on their needs, they ought to be able to contact a Lady Medical Officer. Whether they are visiting or incarcerated, children should never handled like a prisoner. When searching youngsters, prison staff members must act with dignity, compassion, and respect. Children should never be subjected to body cavity searches.

Conclusion

In order to assist women inmates in making a successful transition back into society after serving their sentences, rehabilitation and reintegration programs must be the primary focus. Offering mental health care, counseling, vocational training, and educational opportunities can help lower the recidivism rates of incarcerated women. Furthermore, fostering a secure and encouraging environment in correctional facilities is essential to inmates’ wellbeing and a smooth transition back into society. Mental health issues among inmates are a global phenomena that affects nearly every country in the world. “Compared to women in the general population, women incarcerated have a five-fold increased risk of mental health disorders”. Psychological illnesses, including poor mental health, depression, stress, aggression, and psychological illness, are common among women incarcerated Among female inmates, psychotic disease, bipolar disorder, personality problems, and substance dependence are also quite prevalent .Women who are incarcerated face more particular health issues than men do, as well as restricted access to prison health services . According to a national survey carried out in the United Kingdom, there were significant challenges in providing care for inmates with mental diseases and comparable degrees of impairment among those with psychiatric morbidity. Inmates frequently enquire. Prisoners require instruction and preparation. Teaching them to read and write is just one aspect of this; another is developing and imparting skills that they will need when they are released from prison . This is consistent with research , which indicates that women incarcerated should get appropriate training to prepare them for whatever challenges they may encounter upon release. The greatest need identified by multiple lists of needs for female convicts is skill training (coping, interpersonal, regulatory influence, and anger management), in addition to drug misuse therapy. This has to do with past drug misuse, worries, and terrible situations that inmates have gone through. Recidivism rates were successfully decreased, and prisoner employment chances increased as a result of the training program .

References

1.https://vikaspedia.in/social-welfare/women-and-child-development/women-development-1/women-in-prisons

2.https://www.researchgate.net/publication/377305628_A_Socio-Legal_Study_on_the_Condition_of_Women_Prisoners_and_Their_Children_in_India#:~:text=Several%20empirical%20studies%20have%20been,existing%20laws%20in%20this%20regard.&text=Content%20may%20be%20subject%20to%20copyright.

3.https://prisonreformtrust.org.uk/project/women-the-criminal-justice-system/

4.https://womenalliance.org/the-situation-of-women-in-prison/

5.https://www.aclu.org/news/womens-rights/heres-how-prison-and-jail-systems-brutalize-women

6.https://academic.oup.com/book/34697/chapter-abstract/296170490?redirectedFrom=fulltext

7.https://www.ncbi.nlm.nih.gov/pmc/articles/PMC10113576/

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Words said in a fit of rage do not amount to abetment of suicide: Supreme Court.

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CASE TITLE: KUMAR @ SHIVA KUMAR V. STATE OF KARNATAKA

CASE NO: SLP CRIMINAL APPEAL NO. 1427 OF 2011

DECIDED ON: 1.03.2024

QUORUM: HON’BLE JUSTICE UJJAL BHUYAN

FACTS OF THE CASE

The appellant has filed a special leave petition against the judgment passed by the trial court, and the high court dismissed the criminal revision petition. The trial court had convicted the appellant under section 306 of the IPC, sentencing him to undergo rigorous imprisonment for three years. It imposed a fine of Rs. 2000. If the appellant fails to pay the fine, he shall undergo strict punishment for four months.

The appellant was a tenant living in the deceased’s house. However, on the day of the incident, he was residing elsewhere since the term of his tenant agreement had ended. On 5.7.2000, when the deceased was returning home after dropping her sister’s kids at school, she saw the appellant waiting for her near Canara Bank. The appellant eve teased her, asking her to marry him. When the deceased did not respond, the appellant threatened to destroy her sister’s family, outraging their modesty and causing death. Upon arrival at the house, the deceased informed her sisters of the same and ingested poison. The neighbours saw the deceased lying on the floor in pain from the window and rushed to help. They opened the house door, and during this time, one of her sisters had also arrived with her husband. The deceased was taken to Nirmala Devi Hospital, after which she was relocated to Mission Hospital. She died on 06.07.2000 at 7:30 pm. Raju, the dead’s father, lodged an FIR on 07.07.2000 at 6:30 pm, alleging the appellant was liable for his daughter’s death. During the investigation, post-mortem was done, and the viscera of the deceased was sent for chemical analysis to the Forensic Science Laboratory, Bangalore. The doctor who did the examination stated that the death was caused by respiratory failure due to the consumption of a substance having Organophosphate. After the investigation, the police submitted the chargesheet, where the appellant was the accused.

The prosecution examined eleven witnesses and produced eleven documents as exhibits. The trial court gave its verdict after hearing both sides. The prosecution, beyond any reasonable doubt, had proved that the appellant was responsible for abetting the suicide of the deceased. Hence, the trial court convicted the appellant. As previously stated, the appellant had filed an appeal in the High Court of Karnataka, which upheld the judgement passed by the trial court and dismissed the petition. Following that, the aggrieved filed a special leave petition. The appellant was also granted bail contingent on the trial court’s satisfaction.

LEGAL PROVISIONS

Section 107 of the IPC deals with abetment of a thing.

Section 306 of the IPC deals with abetment of suicide.

Section 309 of the IPC deals with attempt to commit suicide.

Section 161 of the CRPC deals with examination of witnesses by police.

Section 313 of the CRPC deals with power to examine the accused.

Section 374 of the CRPC deals with appeals from convictions.

APPELLANTS CONTENTIONS

The counsel for the appellant contends that the evidence produced by the prosecution has not been interpreted and analysed correctly since it does not aid the appellant’s conviction under section 306 of the Indian Penal Court. There are inconsistencies in the witness statements and the evidences produced by the prosecution which cannot be overlooked. It can be inferred that no case of instigation, abetment or conspiracy can be drawn against the appellant in this scenario.

The statements made by Prosecution Witness (PW) No. 1, 2, 3, 4 and 12 are highly unreliable. The gaps in their testimony prove that they have improved and changed their story. The counsel for the appellant also revealed that the front of the right wrist of the deceased had a partially healed superficial linear incised injury. The prosecution has not explained the same. Since the injury was only partially recovered, it suggests it happened before the appellant teased her. This shows the appellant did not instigate her suicidal nature, and it might be something else. Although the deceased was hospitalised on 05.07.2000, the FIR was only lodged on 07.07.2000 at 6:30 pm. Additionally, the deceased had not told anyone about the appellant allegedly harassing her. Moreover, the appellant had gotten married two months before the incident took place so there was no reason for him to threaten, he was deceased making the accuracy of the prosecution’s case questionable.

 

RESPONDENT CONTENTIONS

The respondent asserts that the appellant has been convicted rightfully. The prosecution has proved his liability without any reasonable doubt before the trial court. Even the high court has upheld the impugned order. Hence, the question of credibility does not arise. There is no such rule in any legislation that a conviction cannot be made on the statements given by the family members. A simple reading of the witness statements of PW 1, 2 and 4 which is further substantiated by the testimony of PW 13 the doctor will point towards the appellant’s conviction. Hence, there is no substance in the case presented by the appellant.

 

COURT ANALYSIS AND JUDGEMENT

The Court has thoroughly analysed the evidence in this case, and the revelations have been astounding. It has only served to weaken the case of the prosecution. The accused had lived on the ground floor of his house for five years till the tenancy period was over. The deceased used to take the children of Raju’s other daughter to school daily. During that time, the accused used to ask for her hand in marriage and, upon her refusal, threatened to murder her family. Upon further examination of PW 1, 05.07.2000 was corrected to 06.07.2000. This very day, the accused had threatened to pour acid on the deceased and her sisters and murder them. Raju was informed about the accused’s marital status only after the death of his daughter. He was unaware of his whereabouts after he left his house.

Meena, PW 2, is the deceased’s sister residing with her. She stated that she saw her father in the hospital the next day at around 5:00 pm. Additionally, her father resided with some other woman outside marriage. Meena’s testimony contradicts the claims made by her father about living in the same house and reaching the hospital by 1 pm. The behaviour of Raju, whose daughter had been admitted to the hospital because of the consumption of poison, is very abnormal.

According to PW 4, Shantha, the second daughter of Raju, the deceased, had telephoned her and told them that she had consumed poison because of the incident that took place earlier that day. They rushed to her residence and took her to the hospital with the help of neighbours who were already there. This again contradicts PW 1’s statement that he had come home at 10 am and received the news that his daughter had already been taken to the hospital. PW 8 and 9, who were amongst the neighbours who saw the deceased in an unconscious state through the window while the telephone was ringing, turned out to be hostile witnesses. Only PW 8 and 9 were examined among all the neighbours present, and the reasons for not examining the others are unknown. Both the neighbours turned out to be hostile witnesses, stating that they didn’t know the reason behind the girl’s death. They also stated that the police hadn’t recorded their statements. It is also pertinent to note that if the telephone receiver hung, how could it keep ringing? In addition to the inconsistencies and loopholes that have already dented the prosecution case, the court stated that the credibility of the evidence produced cannot be trusted.

The court referred to the case M. Mohan v. State[1] to look into the meaning of suicide. In this case, it was observed that since “Sui” means self and “cide” means killing, a clear inference can be drawn that suicide means self-killing. In the case of Ramesh Kumar v. State of Chhattisgarh[2], it was held that instigation refers to an act of provocation and encouragement. When someone is provoked to perform an act, it is instigation. It is immaterial whether the words are spoken or unspoken. The accused’s act must indicate the resultant circumstance or situation. However, words said in a rage will not be considered as instigation.

Thus, the court, in this case, has laid down essentials that need to be proved to convict an accused for the offence of abetment of suicide. They are as follows:

  • the accused constantly irritates and annoys the deceased with spoken words, actions, deliberate omissions and deliberate silence to provoke and compel the deceased to take action swiftly
  • it is very important to establish mens rea of the accused in doing the aforementioned acts, which goes hand in hand with instigation.

Another point which is pertinent to note is that when a person dies by the consumption of poison, traces of poison must be discovered in such cases. PW 13 testified that there were injection marks on the front of both elbows of the deceased, including a partially healed wound on the wrist of the deceased. When he received the final chemical analysis, he opined that the death was caused by respiratory failure due to the consumption of the compound organophosphate. In the instant case, the doctors who treated the deceased were not called upon by the court for their testimony. It would have been crucial since they could have given information regarding the compound’s amount and way of consumption. No evidence pertaining to the bottle or the container from which the deceased had consumed poison or any syringe or needle used to inject was retrieved by the police.  

The court said that there can be a plethora of reasons as to why a person can commit suicide. It can be due to societal pressures or some mental illness. Hence, suicide is not always abetted. In the present case, the appellant cannot be convicted of abetment to suicide when suicide itself has not been proven. Considering the defaults in the prosecution case, the Hon’ble Court quashed the order given by the trial court and subsequently upheld by the High Court. The appellant’s conviction under section 306 has been set aside, hereby acquitting him of all the charges. The appellant is already out on bail, so the bail bonds shall no longer be in effect.

[1] 1 (2011) 3 SCC 626

[2] (2001) 9 SCC 618

Judgement Written by-Rashi Hora

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RAPE OF A MINOR GIRL SENTENCED TO 20 YEARS IMPRISONMENT RATHER THAN NATURAL LIFE IMPRISONMENT: SUPREME COURT

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The case Is FR.EDWIN PIGAREZ VERSUS STATE OF KERALA , JJ.Crl.Appeal Nos.1321 of 2016 and 160 of 2017.

The appellant in Criminal Appeal No. 160 of 2017 is the first accused and the appellant in Criminal appeal No.1321 of 2016 is the second accused on the files of Additional Sessions Court, Ernakulam. The first appellant was convicted under many offences which are punishable under many sections Section 375 (a) of IPC and Section 3 (a) , Section 3 (b)  under POCSO Act. And the second appellant convicted for the offence under section 212 of IPC.

The accused are brothers .First accused was a vicar in during that period. She used to attend morning prayer with her mother. After the prayer the victim goes missing .The first was accused was with the victim. So her mother questioned him  and went suspicious. Later on questioning she has revealed that she was sexually assaulted by the first accuse. After mother informed to authorities of the church and went to police station to file a case.

During  cross examination they if there was any consensual relationship between them or  the suggestion during this was first accused refused her love proposal. So the victim was giving false statement against him.

First accused was sentenced to undergo twenty  years imprisonment  and second accused was sentenced to undergo simple imprisonment. The victim was went to medical examination before and after registration of the case. The relatives of the first accused met them to settle the case amicably and it is informed to them as it was not possible.

 Sushil Kumar v. Rakesh kumar, (2003) 8 SCC 673 and many more cases ,the apex court held that determination of date of birth of a person before a court of law, whether in a civil or criminal proceedings, would depend upon the facts and circumstances of each case.

The birth Certificate was not challenged to accuse  the Victim is 21.09.2000 and that she was a child in terms of provisions contained in the POCSO Act during 2014 and 2015.  The sterling witnesses is the one that appears to be natural and consistent in the case.  In the medical examination she found evidence of sexual intercourse.

The second accused allegation was against him that he had harboured  the first accused from legal punishment. Special court found guilty that the second accused has done the offence under section 212 of IPC. There was no satisfactory evidence to prove that the victim was a child under POCSO Act during that period.

 In another case Jamali Singh v. State of Harayana, (2013) 7 SCC  263, it said that the age of the victim in this case will be given according to the provision contained in Section 94 of Juvenile Justice ( Careand Protection of Children) Act, 2015.

Police officer collected the birth certificate of the victim and produced same before the court .Rape is crime it effects upon women in the society. First accused for the offence of rape he was punished rigorous imprisonment for a period of 20 years instead of natural life remainder .

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Criminal charges in a civil dispute is an abuse of criminal justice : Supreme court.

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TITLE : Dinesh Gupta v The state of Uttar Pradesh

CORAM : Hon’ble Justice Vikram Nath and Hon’ble justice Rajesh Bindal

DATE :  11th January 2024

CITATION : WP No. 203 Of 2024

FACTS

A company, namely Global Capital filed an FIR against the appellants who are promoters of other companies. The company alleged that there should be an extension of short term loans of Rs. 5,16,00,000 and Rs. 11,29,59,000 to the promoter companies. The loan was then converted into debt equity which promised high returns from the real estate business. The company also acquired shares from the promoting companies. The promoting companies had plans of merging and as a result the company shareholding reduced considerably. The company also did not receive any notice of the amalgamation. When the company asked to return the loan amount, deliberate ignorance was done by the promoter’s company upon which the company filed an FIR. After investigation, the police found that a case was made out against the accused under Sections 420, 467 and 120-B of the IPC

ISSUES

Whether the Criminal charges against the appellant is valid?

JUDGEMENT

The court held that the money transaction was plain and simple between the corporates. The short term loan was advanced for a period of one year, which was not paid back. No other measures were taken by the complainant before filing the FIR.

The court stated that :

The entire factual matrix and the time lines clearly reflects that the complainant deliberately and unnecessarily has caused substantial delay and had been waiting for opportune moment for initiating false and frivolous litigation.

In furtherance, it held that hearing the proceedings would be a abuse of process of court and it is a clear case of malicious prosecution and quashed the FIR.

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Written by- Sanjana Ravichandran

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