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ajay kumar

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how to ascertain benefit of doubt ?=“…Thus too frequent acquittals of the guilty may lead to a ferocious penal law, eventually eroding the judicial protection of the guiltless. For all these reasons it is true to say, with Viscount Simon, that “a miscarriage of justice may arise from the acquittal of the guilty no less than from the conviction of the innocent …” In short, our jurisprudential enthusiasm for presumed innocence must be moderated by the pragmatic need to make criminal justice potent and realistic. A balance has to be struck between chasing chance possibilities as good enough to set the delinquent free and chopping the logic of preponderant probability to punish marginal innocents. We have adopted these cautions in analysing the evidence and appraising the soundness of the contrary conclusions reached by the courts below. Certainly, in the last analysis reasonable doubts must operate to the advantage of the appellant…” Therefore, in such a case the paramount importance of the court is to ensure that miscarriage of justice is avoided. The benefit of doubt particularly in every case may not nurture fanciful doubts or lingering suspicion and thereby destroy social defence. A reasonable doubt is not an imaginary trivial or merely possible doubt, but a fair doubt based upon reason and common sense. In view of the above, we are of the considered opinion that the acquittal in the instant case by the trial court was totally illegal, unwarranted and based on mis-appreciation of evidence for the reason that the court had given undue weightage to unimportant discrepancies and inconsistencies which resulted in miscarriage of justice. Thus, the High Court was fully justified in reversing the order of acquittal.

REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 1340 of 2007 Ramesh Harijan …..Appellant Versus   State of U.P. …. Respondent   JUDGMENT Dr. B.S. CHAUHAN, J.   l. This criminal appeal has been preferred against the judgment and order dated 23.3.2007 passed by the High Court of Allahabad in … Continue reading

MEDICAL NEGLIGENCE= While deciding the cases of medical negligence, it would be appropriate to keep in mind that a Doctor neither undertakes that he will positively cure the patient nor does he undertake to use the highest possible degree of skill. In the case of medical professional, negligence means failure to act in accordance with the standards of reasonably competent medical men at the relevant point of time. A medical practitioner is expected to exercise a reasonable degree of care and skill.

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI   FIRST APPEAL NO. 182 OF 1999 (From the order dated 01.02.1999 in Complaint No. 219/1995 of Maharashtra State Consumer Disputes Redressal Commission)      Shakil Mohd. Vakil Khan      R/o 112, Noorani Patel, Mansion, 3rd Floor, A.Np. 15/16, Dimkar Road, Nagpada, Bombay – 400 008.                                     …     Appellant Versus … Continue reading

Code of Criminal Procedure, 1973 – s.202(2), proviso- Interpretation of – Whether examination of all witnesses cited in the complaint is sine qua non for taking cognizance by a Magistrate in a case exclusively triable by the Court of Sessions – Held, No – Even though in terms of the proviso to s.202(2), the Magistrate is required to direct the complainant to produce all his witnesses and examine them on oath, failure or inability of the complainant or omission on his part to examine one or some of the witnesses cited in the complaint or whose names are furnished in compliance of the direction issued by the Magistrate, will not preclude the latter from taking cognizance and issuing process or passing committal order if he is satisfied that there exists sufficient ground for doing so – Examination of all the witnesses cited in the complaint or whose names are disclosed by the complainant in furtherance of the direction given by the Magistrate in terms of proviso to s.202(2) is not a condition precedent for taking cognizance and issue of process against the persons named as accused in the complaint – Consequence of such non-examination is to be considered at the trial and not at the stage of issuing process. Words and Phrases – “shall” – Meaning of – In context to proviso to s.202(2) CrPC. The appellant’s son was said to have been killed by respondent nos.1 to 4. After conducting investigation, the police submitted final form with the finding that they had no clue about the culprits. Thereupon, the appellant filed a protest petition, which, at the instance of the Judicial Magistrate, was converted into a complaint. The appellant examined himself and two out of the four witnesses cited in the protest petition-cum-complaint. After considering the statements of the appellant and the said two witnesses, the Judicial Magistrate took cognizance against respondent Nos.1 to 4 for offence under Section 302 read with Section 120B IPC and Section 27 of the Arms Act and directed issue of non-bailable warrants against them. Respondents challenged the order of the Judicial Magistrate by filing petition under Section 482 CrPC. The High Court held that the Judicial Magistrate could not have taken cognizance against the respondents without requiring the appellant to examine all the four witnesses named by him and remitted the matter to the concerned court for passing appropriate order after making further inquiry in the light of proviso to Section 202(2) CrPC. Before this Court, it was contended by the appellant that the proviso to s.202(2) Cr.P.C. is not mandatory in character and the High Court committed serious error by remitting the matter to the Judicial Magistrate for further enquiry only on the ground that all the witnesses named by the appellant had not been examined. The appellant contended that non- examination of two witnesses cited in the protest petition-cum-complaint did not preclude the Judicial Magistrate from taking cognizance against respondent nos.1 to 4 since he felt satisfied that a prima facie case was made out against them. The question which thus arose for consideration in the present appeal was whether examination of all witnesses cited in the complaint is sine qua non for taking cognizance by a Magistrate in a case exclusively triable by the Court of Sessions. =Allowing the appeal, the Court HELD:1.1. By its very nomenclature, Cr.P.C. is a compendium of law relating to criminal procedure. The provisions contained therein are required to be interpreted keeping in view the well recognized rule of construction that procedural prescriptions are meant for doing substantial justice. If violation of the procedural provision does not result in denial of fair hearing or causes prejudice to the parties, the same has to be treated as directory notwithstanding the use of word `shall’. [Para 6] [676-D] 1.2. Chapter XIV of CrPC enumerates the conditions for initiation of proceedings. Chapters XV and XVI contain various procedural provisions which are required to be followed by the Magistrate for taking cognizance, issuing of process/summons, dismissal of the complaint, supply of copies of documents and statements to the accused and commitment of case to the Court of Sessions when the offence is triable exclusively by that Court. An analysis of Sections 200, 202, 203, 204, 207, 208 and 209 Cr.P.C. which form part of these Chapters shows that when a complaint is presented before a Magistrate, he can, after examining the complainant and his witnesses on oath, take cognizance of an offence. This procedure is not required to be followed when a written complaint is made by a public servant, acting or purporting to act in discharge of his official duties or when a Court has made the complaint or if the Magistrate makes over the case for inquiry/trial to another Magistrate under Section 192. Section 202(1) empowers the Magistrate to postpone the issue of process against the accused and either inquire into the case himself or direct an investigation to be made by a police officer or by such other person which he thinks fit for the purpose of deciding whether or not there exists sufficient ground for proceeding. By Amending Act No.25 of 2005, the postponement of the issue of process has been made mandatory where the accused is residing in an area beyond the territorial jurisdiction of the concerned Magistrate. Proviso to Section 202(1) lays down that direction for investigation shall not be made where it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Sessions or where the complaint has not been made by a Court unless the complainant and the witnesses have been examined on oath under Section 200. Under Section 202(2), the Magistrate making an inquiry under sub-section (1) can take evidence of the witnesses on oath. If the Magistrate thinks that the offence complained of is triable exclusively by the Court of Sessions then in terms of proviso to Section 202, he is required to call upon the complainant to produce all his witnesses and examine them on oath [Paras 6, 7] [676-G-H; 681-G-H; 682-A-C] 1.3. The object of examining the complainant and the witnesses is to ascertain the truth or falsehood of the complaint and determine whether there is a prima facie case against the person who, according to the complainant has committed an offence. If upon examination of the complainant and/or witnesses, the Magistrate is prima facie satisfied that a case is made out against the person accused of committing an offence then he is required to issue process. Section 202 empowers the Magistrate to postpone the issue of process and either inquire into the case himself or direct an investigation to be made by a police officer or such other person as he may think fit for the purpose of deciding whether or not there is sufficient ground for proceeding. Under Section 203, the Magistrate can dismiss the complaint if, after taking into consideration the statements of the complainant and his witnesses and the result of the inquiry/investigation, if any, done under Section 202, he is of the view that there does not exist sufficient ground for proceeding. On the other hand, Section 204 provides for issue of process if the Magistrate is satisfied that there is sufficient ground for doing so. The expression “sufficient ground” used in Sections 203, 204 and 209 means the satisfaction that a prima facie case is made out against the person accused of committing an offence and not sufficient ground for the purpose of conviction. [Para 8] [683-E-H; 684-A-B] 1.4. The use of the word `shall’ in proviso to Section 202(2) is prima facie indicative of mandatory character of the provision contained therein, but a close and critical analysis thereof along with other provisions contained in Chapter XV and Sections 226 and 227 and Section 465 would clearly show that non-examination on oath of any or some of the witnesses cited by the complainant is, by itself, not sufficient to denude the concerned Magistrate of the jurisdiction to pass an order for taking cognizance and issue of process provided he is satisfied that prima facie case is made out for doing so. Significantly the word `all’ appearing in proviso to Section 202(2) is qualified by the word `his’. This implies that the complainant is not bound to examine all the witnesses named in the complaint or whose names are disclosed in response to the order passed by the Magistrate. In other words, only those witnesses are required to be examined whom the complainant considers material to make out a prima facie case for issue of process. The choice being of the complainant, he may choose not to examine other witnesses. Consequence of such non-examination is to be considered at the trial and not at the stage of issuing process when the Magistrate is not required to enter into detailed discussions on the merits or demerits of the case, that is to say whether or not the allegations contained in the complaint, if proved, would ultimately end in conviction of the accused. He is only to see whether there exists sufficient ground for proceeding against the accused. [Para 12] [685-H; 686-A-E] 1.5. Even though in terms of the proviso to Section 202(2), the Magistrate is required to direct the complainant to produce all his witnesses and examine them on oath, failure or inability of the complainant or omission on his part to examine one or some of the witnesses cited in the complaint or whose names are furnished in compliance of the direction issued by the Magistrate, will not preclude the latter from taking cognizance and issuing process or passing committal order if he is satisfied that there exists sufficient ground for doing so. Such an order passed by the Magistrate cannot be nullified only on the ground of non-compliance of proviso to Section 202(2). [Para 14] [692-A-D] 1.6. Examination of all the witnesses cited in the complaint or whose names are disclosed by the complainant in furtherance of the direction given by the Magistrate in terms of proviso to Section 202(2) is not a condition precedent for taking cognizance and issue of process against the persons named as accused in the complaint. In the present case, the High Court committed serious error in directing the Judicial Magistrate to conduct further inquiry and pass fresh order in the light of proviso to Section 202(2). Since the matter is more than 12 years old, the concerned Magistrate is directed to pass appropriate order in terms of Section 209. It is further directed that after committal of the case, the Sessions Judge, to whom the matter is assigned, shall conduct and complete the trial within a period of 9 months. [Paras 16 and 17] [692-G-H; 693-A-C] Birendra K. Singh v. State of Bihar (2000) 8 SCC 498, held inapplicable. Rosy v. State of Kerala (2000) 2 SCC 230, explained R.C. Ruia v. State of Bombay 1958 SCR 618; Vadilal Panchal v. Duttatraya Dulaji Ghadigaonkar (1961) 1 SCR 1; Chandra Deo Singh v. Prokash Chandra Bose (1964) 1 SCR 639; Nirmaljit Singh Hoon v. State of West Bengal (1973) 3 SCC 753; Kewal Krishan v. Suraj Bhan (1980) Supp SCC 499; Mohinder Singh v. Gulwant Singh (1992) 2 SCC 213 and Chief Enforcement Officer v. Videocon International Ltd. (2008) 2 SCC 492, relied on. Ranjit Singh v. State of Pepsu AIR 1959 SC 843; Moideenkutty Haji v. Kunhikoya (1987) 1 KLT 635; M. Govindaraja Pillai v. Thangavelu Pillai 1983 Cri LJ 917 and Abdul Wahab Ansari v. State of Bihar (2000) 8 SCC 500, referred to. Case Law Reference: (2000) 2 SCC 230 explained Para 5 (2000) 8 SCC 498 held inapplicable Para 5 1958 SCR 618 relied on Para 8 (1961) 1 SCR 1 relied on Para 8 (1964) 1 SCR 639 relied on Para 8 (1973) 3 SCC 753 relied on Para 8 (1980) Supp SCC 499 relied on Para 8 (1992) 2 SCC 213 relied on Para 8 (2008) 2 SCC 492 relied on Para 8 AIR 1959 SC 843 referred to Para 13 (1987) 1 KLT 635 referred to Para 13 1983 Cri LJ 917 referred to Para 13 (2000) 8 SCC 500 referred to Para 15 CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 1158 of 2010. From the Judgment & Order dated 18.4.2007 of the High Court of Judicature at Patna in Crl. Misc. No. 1778 of 2007. Gaurav Agrawal for the Appellant. Gopal Singh, Akhilesh Kumar Pandey, Sudarsh Saran, Shalini Chandra, Swati Chandra for the Respondents.

REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.1158 OF 2010 (Arising out of SLP (Crl.) No.1416 of 2009) Shivjee Singh ……Appellant Versus Nagendra Tiwary and others ……Respondents JUDGMENT G.S. Singhvi, J. 1. Leave granted. 2. Whether examination of all witnesses cited in the complaint is sine qua non for taking … Continue reading

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