Maintainability of Special Leave Petition against an Order passes in Review

Consistency is the cornerstone of the administration of justice.

It is consistency which creates confidence in the system and this consistency can never be achieved without respect to the rule of finality. It is with a view to achieve consistency in judicial pronouncements, the courts have evolved the rule of precedents, principle of stare decisis, etc. These rules and principle are based on public policy.

The rationale for not entertaining a special leave petition challenging the order of High Court rejecting the review petition when main order in the writ petition is not challenged can be easily comprehended.

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Scope of Appeal against acquittal

Scope of appeal by High Court against acquittal by Trial Court:

Whether in the facts and circumstances of the case, the High Court is justified in interfering with the order of acquittal passed by the learned trial Court?

In the present case, the prosecution as well as the High Court considered the recovery of photographs; recovery of mobile phone belonging to PW7, recovery of the knife and rope at the instance of the accused and on alleged disclosure statements of the accused on 9.9.2010. The prosecution also relied upon the recovery of jeep in which the photographs of the accused were found. The prosecution also relied upon the disclosure statement of the accused Anwar Ali with respect to recovery of crates and for the aforesaid prosecution heavily relied upon the testimony ofPW5, PW6 and PW7. However, it is required to be noted that on appreciation of the entire evidence on record, the trial Court found material contradictions in the deposition of the witnesses of disclosure statements and the recovery of the knife and rope on 9.9.2010 and thereby did not believe the recovery of knife,rope, crates on the basis of the disclosure statements made by the accused and that too recovered on 9.9.2020.

However, the High Court without giving any cogent reasons has interfered with the findings of fact recorded by the learned trial Court solely by observing that those contradictions were minor contradictions and therefore the learned trial Court was not justified in acquitting the accused solely on the basis of such minor contradictions. However, on considering the entire evidence on record, we are in complete agreement with the view taken by the learned trial Court. The contradictions which came to be considered by the learned trial Court cannot be said to be minor contradictions. Continue reading “Scope of Appeal against acquittal” →

Exercise of writ jurisdiction when alternate remedy under Benami Act is efficacious.

Remedy of appeal under Prohibition of Benami Property Transactions Act, 1988:

Classic cases of frequent invocation of extraordinary jurisdiction under Article 226 of the Constitution of India, even though two, inbuilt efficacious alternative remedies are provided by the Act, 1988

All contentions including that of powers conferred upon Adjudicating Authority under Section 26(1) (3) and whether such powers conferred upon Adjudicating Authority vis-a-vis jurisdiction, all can be raised before Appellate Tribunal exercising vide appellate powers under Section 46 of the Act 1988. Even after the order is passed by the Appellate Tribunal further appeal is provided before the High Court under Section 49 of the Act 1988, we are of the considered opinion in view of decision of the Apex Court in the case of Thansingh Nathmal & Ors. vs. A. Mazid reported in AIR 1964 SC 1419 and 1964 (6) SCR 654 that High Court is not to interfere with the order passed by the Adjudicating or Competent Authority when inbuilt efficacious alternative remedies are available.

[Source: Adjudicating Authority vs Kundan Trading Co. decided by HC of Gujarat on 2 April, 2019]

Irretrievable break down of Marriage: Supreme Court can grant divorce to couple.

Why lock a couple in a dead marriage.

The Respondent wife, who did not appear before the trial court after filing of written statement, did not respond to the request made by the High Court for personal appearance.

In spite of service of Notice, the Respondent did not show any interest to appear in this Court also. This conduct of the Respondent by itself would indicate that she is not interested in living with the Appellant. Refusal to participate in proceeding for divorce and forcing the appellant to stay in a dead marriage would itself constitute mental cruelty [Samar Ghosh v. Jaya Ghosh1]. The High Court observed that no attempt was made by either of the parties to be posted at the same place. Without entering into the disputed facts of the case, we are of the opinion that there is no likelihood of the Appellant and the Respondent living together and for all practical purposes there is an irretrievable breakdown of the marriage.

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Recording of reasons

Necessity to record reasons by Appellate Court

In this regard Order XLI Rule 31 CPC reads as follows:

“Order XLI. Appeals from Original Decrees

31. Contents, date and signature of judgment.- The judgment of the Appellate Court shall be in writing and shall state—

(a) the points for determination;

(b) the decision thereon;

(c) the reasons for the decision; and

(d) where the decree appealed from is reversed or varied, the relief to which the appellant is entitled, and shall at the time that it is pronounced be signed and dated by the Judge or by the Judges concurring therein.”

On a perusal of the said Rule, it is quite clear that the judgment of the appellate court has to state the reasons for the decision. It is necessary to make it clear that the approach of the first appellate court while affirming the judgment of the trial Court and reversing the same is founded on different parameters as per the judgments of this Court.

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What is Lindsey Brief in American Law?

Procedure for filing indigent Appeal against conviction.

Mississippi Rule of Appellate Procedure 28(a)(1)-(4) & (7) governs Appeals on behalf of indigent persons.

Fourteenth Amendment right to appellate counsel:

In Smith v. Robbins, 528 U.S. 259, 273-74, 120 S.Ct. 746, 145 L.Ed.2d 756 (2000), the United States Supreme Court, speaking through Justice Thomas, stated that although the Court had previously laid down a “prophylactic framework” to vindicate the Fourteenth Amendment right to appellate counsel, it “expressly disclaimed any pretensions to rulemaking authority for the States in the area of indigent criminal appeals.” Instead, the Court stated, “States may and, we are confident, will craft procedures that, in terms of policy, are superior to, or at least as good as” the framework the Court introduced in Anders v. California, 386 U.S.*746 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963).

¶ 10. Before reviewing California’s procedure, the Court stated,

[I]t is important to focus on the underlying goals that the procedure should serve to ensure that those indigents whose appeals are not frivolous receive the counsel and merits brief required byDouglas, and also to enable the State to `protect itself so that frivolous appeals are not subsidized and public moneys are not needlessly spent.’ . . . For although, under Douglas, indigents generally have a right to counsel on a first appeal as of right, it is equally true that this right does not include the right to bring a frivolous appeal and, concomitantly, does not include the right to counsel for bringing a frivolous appeal.

The result of above case was laying of following procedure by Supreme Court of Missisipi in Turner v. State, 818 So.2d 1186:

The appellate counsel must:

(1) determine that the defendant is “unlikely to prevail on appeal.”

(2) file a brief indicating “that he scoured the record thoroughly[,]” and “refer[] to anything in the record that might arguably support the appeal[,]” and

(3) advise client of his right to file a pro se supplemental brief.

At this point, the appellate court shall then make its own independent review of the record, in the manner followed in all other cases.

The above procedure resulted in every appeal being a “no brief”:

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