//
archives

high court of gujarat

This tag is associated with 12 posts

Cryptic orders – Remand for fresh consideration = “It was necessary for the High Court to consider whether the trial court’s assessment of the evidence and its opinion that the appellant must be convicted deserve to be confirmed. This exercise is necessary because the personal liberty of an accused is curtailed because of the conviction. The High Court must state its reasons why it is accepting the evidence on record. The High Court’s concurrence with the trial court’s view would be acceptable only if it is supported by reasons. In such appeals it is a court of first appeal. Reasons cannot be cryptic. By this, we do not mean that the High Court is expected to write an unduly long treatise. The judgment may be short but must reflect proper application of mind to vital evidence and important submissions which go to the root of the matter.” 12. Tested on the touchstone of the aforesaid principles we find that there is total lack of deliberation and proper ratiocination. There has been really no assessment of evidence on record. The credibility of the witnesses has not appositely been adjudged. Affirmative satisfaction recorded by the High Court is far from being satisfactory. We are pained to say so, as we find that the learned trial Judge has written an extremely confused judgment replete with repetitions and in such a situation it becomes absolutely obligatory on the part of the High Court to be more careful to come to a definite conclusion about the guilt of the accused persons, for their liberty is jeopardized. It may be stated at the cost of repetition that it is the sacrosanct duty of the appellate court, while sitting in appeal against the judgment of the trial Judge, to be satisfied that the guilt of the accused has been established beyond all reasonable doubt after proper re-assessment, re-appreciation and re-scrutiny of the material on record. 13. It can be stated with certitude that appreciation of evidence and proper re-assessment to arrive at the conclusion is imperative in a criminal appeal. That is the quality of exercise which is expected of the appellate court to be undertaken and when that is not done, the cause of justice is not subserved, for neither an innocent person should be sent to prison without his fault nor a guilty person should be let off despite evidence on record to assure his guilt. Ergo, the emphasis is on the duty of the appellate court. 14. Consequently, the impugned judgment and order passed in Criminal Appeal No. 531 of 2004 by the High Court is set aside and the appeal preferred by the appellants is remitted for fresh disposal. The High Court is requested to dispose of the appeal as expeditiously as possible so that the Sword of Damocles is not kept hanging on the head of the appellants. As the appellants are on bail, they shall continue to remain on bail on same terms and conditions till the disposal of the appeal by the High Court.

published in http://judis.nic.in/supremecourt/filename=40689 IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 1517 OF 2007 Kamlesh Prabhudas Tanna & Another … Appellants Versus State of Gujarat …Respondent J U D G M E N T Dipak Misra, J. Assailing the legal acceptability of the judgment and order passed by the High Court of … Continue reading

No writ is maintainable when alternative remedy is available in criminal procedure code when police fail to register a case =It is seen from the discussion that the police officer in charge of a police station is obliged to register a case and then to proceed with the investigation subject to the provisions of Sections 156 and 157 of the Code. It is further seen that if the police officer in-charge of a police station refuses to exercise the jurisdiction vested in him and register the case on information of cognizable offence and violates the statutory right, the person aggrieved, can send the substance of the same to the higher authority, who, in turn, if satisfied that the information forwarded to him discloses a cognizable offence, can investigate the case himself or direct the investigation to be made by a subordinate officer. The elaborate discussion clearly shows that before registration of the FIR, an officer should be satisfied. In other words, if the facts are such which require some inquiry for the satisfaction about the charges or allegations made in the FIR or he may have entertained a reasonable belief or doubt, then he may make some inquiry. To put it clear, by virtue of the expression “reason to suspect the commission of an offence”, we are of the view that commission of cognizable offence, based on the facts mentioned has to be considered with the attending circumstances, if available. In other words, if there is a background/materials or information, it is the duty of the officer to take note of the same and proceed according to law. It is further made clear that if the facts are such which require some inquiry for the satisfaction about the charges or allegations made in the FIR then such a limited inquiry is permissible. ; With regard to the direction for investigation by the CBI, a Constitution Bench of this Court in State of West Bengal and Ors. vs. Committee for Protection of Democratic Rights, West Bengal and Ors., (2010) 3 SCC 571 clarified that despite wide powers conferred by Articles 32 and 226 of the Constitution, the Courts must bear in mind certain self- imposed limitations on the exercise of such constitutional powers. Insofar as the question of issuing a direction to CBI to conduct an investigation, the Constitution Bench has observed that “although no inflexible guidelines can be laid down to decide whether or not such power should be exercised but time and again it has been reiterated that such an order is not to be passed as a matter of routine or merely because a party has leveled some allegations against the local police. This extraordinary power must be exercised sparingly, cautiously and in exceptional situations where it becomes necessary to provide credibility and instill confidence in investigations or where the incident may have national and international ramifications or where such an order may be necessary for doing complete justice and enforcing the fundamental rights. Otherwise, the CBI would be flooded with a large number of cases and with limited resources, may find it difficult to properly investigate even serious cases and in the process lose its credibility and purpose with unsatisfactory investigations.”- Having regard to the Scheme of the Code, various provisions as to the course to be adopted and in the light of the peculiar/special facts and circumstances which we have already noted in the earlier paras, we are satisfied that the High Court was fully justified in directing the appellant to avail the recourse to the remedy as provided in the Code by filing a complaint before the Magistrate. We are also satisfied that the High Court, in order to safeguard the stand of the appellant, issued certain directions to remedy her grievance against the persons concerned. We confirm the decision of the High Court in the light of the facts relating to the background of the case, particularly, the land dispute, the complaint regarding the same and various subsequent circumstances including her silence about the non-disclosure of the alleged rape before her mother on two occasions and before the female doctors at Civil Hospital as well as Sabarmati Jail and also before the Magistrate. It is further made clear that while affirming the decision of the High Court, it cannot be presumed that we are underestimating the grievance of the appellant herein and it is for the Magistrate concerned to proceed in accordance with the provisions of the Code and arrive at an appropriate conclusion. 13) With the above observation, the appeal is dismissed.

published in http://judis.nic.in/supremecourt/filename=40485 Page 1 REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 810 OF 2013 (Arising out of SLP (CRL.) No. 9256 of 2012 Doliben Kantilal Patel …. Appellant(s) Versus State of Gujarat & Anr. …. Respondent(s) J U D G M E N T P. Sathasivam, J. 1) Leave granted. … Continue reading

Whether accused are liable to be convicted under sec. 304 part -I or 302 of I.P.C.= Learned trial Judge has not accepted the allegation of dragging of the deceased solely on the basis that no injuries were caused on the wrist.- It is worthy to note that the dead body was found at a distance of 10 kms., but it is not necessary to establish that the accused had dragged the deceased for about 10 kms.- It is well settled in law that the evidence of the hostile witness can be relied upon by the prosecution as well as by the defence. = It is settled legal proposition that the evidence of a prosecution witness cannot be rejected in toto merely because the prosecution chose to treat him as hostile and cross-examined him. The evidence of such witnesses cannot be treated as effaced or washed off the record altogether but the same can be accepted to the extent that their version is found to be dependable on a careful scrutiny The singular purpose of referring to the testimonies of these two witnesses is that the incident did occur and the accused had dashed the vehicle against the cycle. ;whether the offence is ‘murder’ or ‘culpable homicide not amounting to murder’, on the facts of a case, it will be convenient for it to approach the problem in three stages. The question to be considered at the first stage would be, whether the accused has done an act by doing which he has caused the death of another. Proof of such causal connection between the act of the accused and the death, leads to the second stage for considering whether that act of the accused amounts to “culpable homicide” as defined in Section 299. If the answer to this question is prima facie found in the affirmative, the stage for considering the operation of Section 300, Penal Code, is reached. This is the stage at which the court should determine whether the facts proved by the prosecution bring the case within the ambit of any of the four clauses of the definition of ‘murder’ contained in Section 300. If the answer to this question is in the negative the offence would be ‘culpable homicide not amounting to murder’, punishable under the first or the second part of Section 304, depending, respectively, on whether the second or the third clause of Section 299 is applicable. If the question is found in the positive, but the case comes within any of the exceptions enumerated in Section 300, the offence would still be ‘culpable homicide not amounting to murder’, punishable under the first part of Section 304, Penal Code.

Page 1 Reportable IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NOS.532-533 OF 2013 (Arising out of S.L.P. (Crl.) Nos. 5099-5100 of 2012) Khachar Dipu @ Dilipbhai Nakubhai .. Appellant Versus State of Gujarat … Respondent J U D G M E N T Dipak Misra, J. Leave granted. 2. In these appeals, … Continue reading

whether the appellant herein has made out a case for regular bail- the appellant is ordered to be released on bail on executing a bond with two solvent sureties, each in a sum of Rs. 5 lakhs to the 19

REPORTABLE   IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 348 OF 2012 (Arising out of S.L.P. (Crl.) No. 8995 of 2011)   Dipak Shubhashchandra Mehta …. Appellant(s)   Versus   C.B.I. & Anr. …. Respondent(s)     J U D G M E N T P.Sathasivam,J. 1) Leave granted.   … Continue reading

Rape case – tender ages of victim and accused =Considering the fact that the victim, in the case on hand, was aged about 7 years on the date of the incident and the accused was in the age of 18/19 years and also of the fact that the incident occurred nearly 10 years ago, the award of life imprisonment which is maximum prescribed is not warranted and also in view of the mandate of Section 376(2)(f) IPC, we feel that the ends of justice would be met by imposing RI for 10 years. Learned counsel appearing for the appellant informed this Court that the appellant had already served nearly 10 years.

REPORTABLE   IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 309 OF 2012 (Arising out of S.L.P. (Crl.) No. 2967 of 2011)     Bavo @ Manubhai Ambalal Thakore …. Appellant(s)   Versus   State of Gujarat …. Respondent(s)     J U D G M E N T P.Sathasivam,J. 1) … Continue reading

Essar Oil Limited (hereinafter “Essar”) was given the benefit of Sales Tax incentive under the Government of Gujarat =a person

REPORTABLE   IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION     CIVIL APPEAL NO_599_ OF 2012 (Arising out of SLP (C) No.17130/2008)     State of Gujarat & others …Appellant(s)     – Versus –     Essar Oil Limited and another …Respondent(s)     J U D G M E N T … Continue reading

APEX COURT NOT ACCEPTED HIGH COURT VIEW= whether definition of “tax arrears” contained in Section 87 (m)(ii)(b) is arbitrary, irrational or violative of the doctrine of equality enshrined under Article 14 of the Constitution and whether the petitioners are entitle to avail benefit under Scheme. = The High Court, vide its impugned Judgment and Order dated 25.07.2005, has declared that Section 87(m)(ii) (b) of Finance (No.2) Act, 1998 is violative of Article 14 of the Constitution of India insofar as it seeks to deny the benefit of the `Kar Vivad Samadhana Scheme, 1998 (hereinafter referred to as “the Scheme”) to those who were in arrears of duties etc., as on 31.03.1998 but to whom the notices were issued after 31.03.1998 and further, has struck down the expression “on or before the 31st day of March 1998” under Section 87(m)(ii)(b) of the Finance (No. 2) Act, 1998 as ultra vires of the Constitution of India and in particular, Article 14 of the Constitution on the ground that the said expression prescribes a cut-off date which arbitrarily excludes certain category of persons from availing the benefits under the Scheme. The High Court has further held that as per the definition of the `tax arrears’ in Section 87(m) 4

REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 2960 OF 2006 Union of India and Ors. ………….. Appellants versus M/s Nitdip Textile Processors Pvt. Ltd. and Another …………..Respondents WITH CIVIL APPEAL NO. 2961 OF 2006 Union of India and Ors. ………….. Appellants versus M/s Nitdip Textile Processors Pvt. Ltd. and … Continue reading

interested witness= This Court has consistently held that as a general rule the Court can and may act on the testimony of a single witness provided he is wholly reliable. There is no legal impediment in convicting a person on the sole testimony of a single witness. That is the logic of Section 134 of the Evidence Act, 1872. But if there are doubts about the testimony, the court will insist on corroboration. In fact, it is not the number, the quantity, but the quality that is material. The time- honoured principle is that evidence has to be weighed and not counted. The test is whether the evidence has a ring of truth, is cogent, credible and trustworthy or otherwise. = contradiction/ommissions/improvements= It is settled legal proposition that while appreciating the evidence, the court has to take into consideration whether the contradictions/omissions/improvements/embellishments etc. had been of such magnitude that they may materially affect the trial. Minor contradictions, inconsistencies, omissions or improvements on trivial matters without affecting the case of the prosecution should not be made the court to reject the evidence in its entirety. The court after going through the entire evidence must form an opinion about the credibility of the witnesses and the appellate court in natural course would not be justified in reviewing the same again without justifiable reasons.

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 831 OF 2010 Takdir Samsuddin Sheikh …Appellant Versus State of Gujarat & Anr. …Respondents With CRIMINAL APPEAL NO. 832 OF 2010 J U D G M E N T Dr. B.S. CHAUHAN, J. 1. Both these appeals have been preferred against the judgment … Continue reading

whether the appointment of an authority at cost of one of party to the dispute for giving judgement in that dispute is proper?the Government of Gujarat by its letter dated 31.01.2006 requested the Government of India for approval of the nomination of persons to be appointed as Competent Authority for acquisition of right of user under the Petroleum and Minerals, Pipelines (Acquisition of Right of User in Land) Act, 1962 (for short `the Act’) and one of the persons was Shri V.I. Gohil, Retired Deputy Collector. In the letter dated 31.01.2006 of the Government of Gujarat making the aforesaid request to the Government of India, it was stated that the = “…. It would be to broad a proposition to extend the theory of bias to exclude persons only because such person draws the salary from the bodies like public corporation, State Government. It would altogether be a different case if it was a case of a private employer and his employee. We cannot equate the case of a person in private employment with that of a person in public employment. …” – For the aforesaid reasons, we allow these appeals, set aside the impugned orders of the High Court as well as the proceedings for determination of compensation in the case of the appellants only. We, however, make it clear that this judgment will not affect any of the orders

Reportable IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 8629 OF 2011 (Arising out of SLP (C) NO. 17022 OF 2008) Trilok Sudhirbhai Pandya …… Appellant Versus Union of India & Ors. …… Respondents WITH CIVIL APPEAL NO. 8630 OF 2011 (Arising out of SLP (C) No. 17021 OF 2008) Nilkanth … Continue reading

whether the sentence awarded to the appellants needs to be reduced and, if so, to what extent.=Even appellant no.1 is not alleged to have used any force against the constable in the incident in question. The incident itself is nearly ten years old by now. Keeping in view all these circumstances and the fact that Hussain Ibrahim Siddi accused no.1 who was mainly responsible for the grievous injury caused to the constable has already served the sentence awarded to him, we are of the opinion that interest of justice would be sufficiently served if the sentence awarded to the appellants is modified and reduced to the sentence already undergone by them.

REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICITION CRIMINAL APPEAL NO.1879 OF 2011 (Arising out of SLP (Crl.) No.5562 of 2011) Nasib Hussain Siddi & Ors. …Appellants Versus State of Gujarat …Respondent O R D E R T.S. THAKUR, J. 1. Leave granted. 2. This appeal arises out of an order passed by … Continue reading

Blog Stats

  • 2,884,333 hits

ADVOCATE MMMOHAN

archieves

Enter your email address to subscribe to this blog and receive notifications of new posts by email.

Join 1,905 other followers

Follow advocatemmmohan on WordPress.com