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state of gujarat

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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

filing of the second FIR and fresh charge sheet is violative of fundamental rights under Article 14, 20 and 21 of the Constitution since the same relate to alleged offence in respect of which an FIR had already been filed and the court has taken cognizance. This Court categorically accepted the CBI’s plea that killing of Tulsiram Prajapati is a part of the same series of cognizable offence forming part of the first FIR and in spite of the fact that this Court directed the CBI to “take over” the investigation and did not grant the relief as prayed, namely, registration of fresh FIR, the present action of CBI filing fresh FIR is contrary to various judicial pronouncements which is demonstrated in the earlier part of our judgment. – In view of the above discussion and conclusion, the second FIR dated 29.04.2011 being RC No. 3(S)/2011/Mumbai filed by the CBI is contrary to the directions issued in judgment and order dated 08.04.2011 by this Court in Writ Petition (Criminal) No. 115 of 2009 and accordingly the same is quashed. As a consequence, the charge sheet filed on 04.09.2012, in pursuance of the second FIR, be treated as a supplementary charge sheet in the first FIR. It is made clear that we have not gone into the merits of the claim of both the parties and it is for the trial Court to decide the same in accordance with law. Consequently, Writ Petition (Criminal) No. 149 of 2012 is allowed. Since the said relief is applicable to all the persons arrayed as accused in the second FIR, no further direction is required in Writ Petition (Criminal) No. 5 of 2013.

Page 1 REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL ORIGINAL JURISDICTION WRIT PETITION (CRIMINAL) NO. 149 OF 2012 Amitbhai Anilchandra Shah …. Petitioner(s) Versus The Central Bureau of Investigation & Anr. …. Respondent(s) WITH WRIT PETITION (CRIMINAL) NO. 5 OF 2013 J U D G M E N T P. Sathasivam, J. 1) Amitbhai Anilchandra … 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

defamatory.= “Mamlatdar Shri Gambhirsinh Dhakre is caught red handed by the youngstersMamlatdar is indulged in illicit relations with the wife of Doctor who is residing at Ajwa Road- attempts to conceal the matter- why the Government is not taking any action against the Mamlatdar?”- A news item has the potentiality of bringing doom’s day for an individual. The Editor controls the selection of the matter that is published. Therefore, he has to keep a careful eye on the selection. Blue-penciling of news articles by any one other than the Editor is not welcome in a democratic polity.- ‘Editor’ to mean ‘the person who controls the selection of the matter that is published in a newspaper’. Section 7 raises the presumption in respect of a person who is named as the Editor and printed as such on every copy of the newspaper. The Act does not recognise any other legal entity for raising the presumption. Even if the name of the Chief Editor is printed in the newspaper, there is no presumption against him under Section 7 of the Act.” – for recalling an erroneous order of issuance of process, no specific provision of law is required, would run counter to the scheme of the Code which has not provided for review and prohibits interference at interlocutory stagesTherefore, we are of the opinion, that the view of this Court in Mathew’s case (supra) that no specific provision is required for recalling an erroneous order, amounting to one without jurisdiction, does not lay down the correct law.” .-In the result, the appeal is allowed, the impugned judgment of the High Court is set aside and the court in seisin of the case shall now proceed with the trial in accordance with law.

Page 1 REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.433 OF 2013 (@SPECIAL LEAVE PETITION (CRL.) NO. 3475 OF 2008) GAMBHIRSINH R. DEKARE … APPELLANT VERSUS FALGUNBHAI CHIMANBHAI PATEL AND ANR. …RESPONDENTS J U D G M E N T CHANDRAMAULI KR. PRASAD, J. The petitioner Gambhirsinh R. Dekare, at the … Continue reading

appointment on compassionate ground = The claim of the respondent was earlier rejected on the ground that, the family had adequate financial status and the amount of pension being given was actually over and above the limit fixed by the appellant issuing the guidelines. Subsequently, when the case was reconsidered upon the direction of the court, it was found that the respondent did not meet the requisite eligibility criteria i.e., 10th standard certificate. Admittedly, the respondent is 8th standard fail, and thus, he can be considered only as 7th standard pass and we must therefore consider, whether he could have been offered appointment to a Class IV post. 13. Clause 9 thereof, provides that no relaxation in educational qualification(s) for the purpose of giving compassionate appointment to the dependant(s) of a deceased employee, would be permissible. However, such relaxation can be granted if there exists some requirement of minimum qualification(s) with respect to the said post. Clause 11 thereof, provides that a dependant can, in fact, be given appointment on compassionate ground, on the basis of the pass marks obtained by him in the new Secondary School Certificate and in view thereof, as respondent No.1 is admittedly only 8th standard (fail), he is therefore, ineligible for the post. Even otherwise, if the direction of the High Court is complied with and the case is considered as per the un-amended provisions in existence prior to 2005, the financial limits fixed therein, would automatically be applicable. His application dated 11.5.1999 reveals that his date of birth is 1.3.1976, and further that he has studied only upto the 8th standard (fail). 14. In view of the above, we are of the considered opinion that since 1991, the eligibility criteria for a Class IV post was set as, the passing of the 10th standard, and as the said respondent had been unable to pass even the 8th standard, he was most certainly, not eligible to apply for the said post. In view of the law referred to hereinabove, it is neither desirable, nor permissible in law, for this court to issue direction to relax the said eligibility criteria and appoint respondent No.1 merely on humanitarian grounds. 15. Thus, the question framed by this Court with respect to whether the application for compassionate employment is to be considered as per existing rules, or under the rules as existing on the date of death of the employee, is not required to be considered. 16. In view of the above, the appeal succeeds and is allowed. The judgment and order impugned herein is set aside. No order as to costs.

Reportable   IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 6468 OF 2012   State of Gujarat & Ors. ..Appellants Versus Arvindkumar T. Tiwari & Anr. … Respondents       J U D G M E N T   Dr. B.S. CHAUHAN, J. 1. This appeal has been preferred against … 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

what would be the status of a person, one of whose parents belongs to the scheduled castes/scheduled tribes and the other comes from the upper castes, or more precisely does not come from scheduled castes/scheduled tribes – whether the appellant was, in fact, brought up as a tribal and, consequently, shared all the indignities and handicaps and deprivations normally suffered by the tribal communities.

REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 654 OF 2012 (Arising out of S.L.P (CIVIL) NO.4282 of 2010)   Rameshbhai Dabhai Naika … Appellant   versus   State of Gujarat & Others … Respondents     J U D G M E N T   Aftab Alam,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

Code of Criminal Procedure, 1973: Ss. 451 and 452-Custody or disposal during inquiry or trial of properly seized by police-Valuable articles, currency notes, vehicles, liquor, narcotic drugs etc. -Directions given for custody arid disposal of such articles so that no loss is caused either to State exchequer or to the owner of the property or to the Insurance company because of keeping them for a long time either in Police Malkhanas or at Police Stations. =CRIMINAL APPELLATE JURISDICTION : Special Leave Petition (CRL.) No. 2745 of 2002. From the Judgment and Order dated 20.6 2002 of the Gujarat High Court in Crl. R.A. No. 241 of 2002. WITH S.L.P.(Crl.) No. 2755 of 2002. Ujwal Kumar Jha, Aslam Ahmed, Ranjan Kumar Jha, Nakul Dewan and Ejaz Maqbool for the Petitioners. S.K. Dholakia and Ms. Hemantika Wahi for the Respondent. =2003 AIR 638 , 2002(3 )Suppl.SCR39 , 2002(10 )SCC283 , 2002(9 )SCALE153 , 2002(10 )JT80

  CASENO.: Special Leave Petition (crl.) 2745 of 2002 PETITIONER: SUNDERBHA1 AMBALAL DESAI RESPONDENT: STATE OF GUJARAT DATE OF JUDGMENT: 01/10/2002 BENCH: M.B. SHAH & D.M. DHARMADHIKARI JUDGMENT: JUDGMENT 2002 Supp(3) SCR 39 The following Order of the Court was delivered : In these two petitions filed by the police inspectors serving the Gujarat State, … Continue reading

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