Investigation by Complainant Police Officer, if vitiates the Criminal Trial?

The appellant cannot be discharged at this stage on the aforesaid ground mainly that the Investigating Officer and the complainant/informant are the same and thus the trial is vitiated.

At the outset it is required to be noted that after conclusion of the investigation, the Investigating Officer had filed the charge­sheet against the accused for the offences under Sections 354, 354A, 354B, 341, 342, 376 (2) (f) and 376 (2) (k) of the IPC. That thereafter, learned Trial Court has framed the charge against the appellant­original accused for the aforesaid offences, in exercise of its powers under Section 227/228 of the CrPC. Framing of the charge against the accused for the aforesaid offences was the subject matter before the High Court. By the impugned Judgment and Order the High Court has dismissed the Revision Application and has confirmed the Order passed by the learned Trial Court ordering to frame the charge against the accused for the aforesaid offences. Hence, the appellant­original accused is before this Court by way of present appeal.

Decision:

That it is mainly contended on behalf of the appellant that in the present case as the complainant and Investigating Officer are the same and therefore in view of the decision of this Court in the case of Mohan Lal (Supra) the entire criminal proceedings are vitiated and therefore the appellant – original accused is to be discharged. However, it is required to be noted that apart from the fact that the decision of this Court in the case of Mohan Lal (Supra) has been doubted and pursuant to the Order passed by this Court dated 17.01.2019 in SLP (Crl.) D. No.39528 of 2018, the same is referred to the larger Bench. In the subsequent decision in the case of Varinder Kumar (Supra), a three Judge Bench of this Court had an occasion to consider the decision of this Court in the case of Mohan Lal (Supra) and the three Judge Bench of this Court has held that the decision of this Court in the case of Mohan Lal (Supra) shall be applicable prospectively, it is further held that all pending criminal prosecutions, trials and appeals prior to the law laid down in Mohan Lal (Supra) shall continue to be governed by the individual facts of the case. Therefore, the reliance placed upon the decision of this Court in the case of Mohan Lal (Supra) by the learned Counsel appearing on behalf of the appellant/­original accused is misplaced. Now, the submission made by Shri Vikas Singh, learned Senior Advocate appearing on behalf of the appellant/­original accused that the subsequent Bench in the case of Varinder Kumar (Supra) could not have held that the decision of this Court in the case of Mohan Lal (Supra) shall be applicable prospectively is concerned, at the outset, it is required to be noted that this Bench is not considering whether in the subsequent decision in the case of Varinder Kumar (Supra), the Bench could not have considered the prospective applicability of the decision in the case of Mohan Lal (Supra) or not? The three Judge Bench of this Court held that the decision of this Court in the case of Mohan Lal (Supra) would be applicable prospectively and the same shall not affect criminal prosecutions, trials and appeals. We are bound by that decision. Therefore, we are of the opinion that the decision of this Court in the case of Mohan Lal (Supra) shall not be applicable to the facts of the case on hand as criminal prosecution has been initiated in the present case much prior to the decision in the case of the Mohan Lal (Supra). Therefore, the appellant cannot be discharged at this stage on the aforesaid ground mainly that the Investigating Officer and the complainant/informant are the same the trial is vitiated, relying upon the decision of this Court in the case of Mohan Lal (Supra). Even the decision of this Court in the case of Bhagwan Singh (Supra), relied upon by the learned Counsel appearing on behalf of the appellant­ original accused, also shall not be of much assistance to the appellant at this stage. In the case of Bhagwan Singh (Supra) and after the trial this Court held that as the complainant herself was the Investigating Officer, the case of the prosecution would not be free from doubt. It was the case after trial and not at the stage of framing of the charge. Where the complainant himself had conducted the investigation, such aspect of the matter can certainly be given due weightage while assessing the evidence on record but it would be completely a different thing to say that the trial itself would be vitiated for such infraction.

[Source: Tarun Jit Tejpal vs The State Of Goa decided by SC on 19 August, 2019]
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Restitution is a remedy against unjust enrichment or unjust benefit.

The concept of restitution is a common law principle and it is a remedy against unjust enrichment or unjust benefit. The court cannot be used as a tool by a litigant to perpetuate illegality. A person who is on the right side of the law, should not have a feeling that in case he is dragged in litigation, and wins, he would turn out to be a loser and wrong­doer as a real gainer, after 20 or 30 years.

It is a settled law that when there is stay of proceedings by court, no person can be made to suffer for no fault on his part and a person who has liability but for the interim stay, cannot be permitted to reap the advantages on the basis of interim orders of the court. In Amarjeet Singh v. Devi Ratan, (2010) 1 SCC 417, it was held that no person can suffer from the act of court and unfair advantage gained by a party of interim order must be neutralised. The Court should never permit a litigant to perpetuate illegality by abusing the legal process. It is the bounden duty of the court to ensure that dishonesty and any attempt to abuse the legal process must be effectively curbed and the court must ensure that there is no wrongful, unauthorised or unjust gain for anyone by the abuse of process of the court. No one should be allowed to use the judicial process for earning undeserved gains or unjust profits. The object and true meaning of the concept of restitution cannot be achieved unless the courts adopt a pragmatic approach in dealing with the cases. The Court observed: Continue reading “Restitution is a remedy against unjust enrichment or unjust benefit.”

Jadav is entitled to Consular Access; held by INTERNATIONAL COURT OF JUSTICE

Dispute between India and Pakistan

India had approached the UN court alleging that Pakistan had violated Article 36 of the Vienna Convention on Consular Relations 1963 by failing to inform India of Kulbhushan Jadhav’s arrest and by refusing consular access to him.

On the other hand, Pakistan argued that Vienna Convention on Consular Relations was not applicable to persons detained on charges of espionage.

Pakistan claimed that its forces arrested Jadhav from Balochistan province on March 3, 2016, after he allegedly entered from Iran.However, India maintains that Jadhav was kidnapped from Iran where he had business interests after retiring from the Navy.

Arguments:

India submitted that Jadhav’s conviction was based on extracted confessions and that the military court had not followed due process by denying him Consular Access under Vienna Convention.

Pakistan disputed Jadhav’s Indian identity. There was no proof of him being retired from armed forces. He was in possession of an Indian passport with a Muslim cover name, Qureshi submitted. He cited articles written by Indian journalists Karan Thapar, Praveen Swami and Chandan Nandy to state that Jadhav was a spy planted by India in Pakistan on an espionage mission.

Factual background and Issues:

Arrest and detention by Pakistan of an individual named Mr. Kulbhushan Sudhir Jadhav — Mr. Jadhav accused of involvement in espionage and terrorism activities — Criminal proceedings instituted — Mr. Jadhav sentenced to death by military court in Pakistan.

Jurisdiction of the Court:

Dispute relates to interpretation and application of Vienna Convention on Consular Relations — The Court has jurisdiction under Article I of Optional Protocol to Vienna Convention on Consular Relations concerning the Compulsory Settlement of Disputes.

Admissibility of India’s Application:

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Valuation of imported goods by Customs Officer.

Customs Valuation (Determination of Value of Imported Goods) Rules, 2007: Rule 4 to 9 and 12:

The requirements of Rule 12, therefore, can be summarised as under:

(a) The proper officer should have reasonable doubt as to the transactional value on account of truth or accuracy of the value declared in relation to the imported goods.

(b) Proper officer must ask the importer of such goods further information which may include documents or evidence;

(c) On receiving such information or in the absence of response from the importer, the proper officer has to apply his mind and decide whether or not reasonable doubt as to the truth or accuracy of the value so declared persists.

(d) When the proper officer does not have reasonable doubt, the goods are cleared on the declared value.

(e) When the doubt persists, sub-rule (1) to Rule 3 is not applicable and transaction value is determined in terms of Rules 4 to 9 of the 2007 Rules.

(f) The proper officer can raise doubts as to the truth or accuracy of the declared value on ‘certain reasons’ which could include the grounds specified in clauses (a) to (f) in clause (iii) of the Explanation.

(g) The proper officer, on a request made by the importer, has to furnish and intimate to the importer in writing the grounds for doubting the truth or accuracy of the value declared in relation to the imported goods. Thus, the proper officer has to record reasons in writing which have to be communicated when requested.

(h) The importer has to be given opportunity of hearing before the proper officer finally decides the transactional value in terms of Rules 4 to 9 of the 2007 Rules.

16. Proper officer can therefore reject the declared transactional value based on ‘certain reasons’ to doubt the truth or accuracy of the declared value in which event the proper officer is entitled to make assessment as per Rules 4 to 9 of the 2007 Rules. What is meant by the expression “grounds for doubting the truth or accuracy of the value declared” has been explained and elucidated in clause (iii) of Explanation appended to Rule 12 which sets out some of the conditions when the ‘reason to doubt’ exists. The instances mentioned in clauses (a) to (f) are not exhaustive but are inclusive for there could be other instances when the proper officer could reasonably doubt the accuracy or truth of the value declared.

Continue reading “Valuation of imported goods by Customs Officer.”

Punishment for match fixing in Cricket

Cricket, it is said, is a synonym for gentlemanliness which means discipline, fair play, modest and high standard of morality. The ever increasing interest in the game of Cricket in our country has raised issues of its regulation, control and management. In our country the Board of Control for Cricket in India (BCCI), a registered Society under the Societies Registration Act, 1860, exercises sufficient control on all aspects of game of Cricket and has framed various Code of Conduct for all who are associated with it. Highlighting the importance of BCCI, Justice T.S. Thakur, as he then was, in Board of Control for Cricket in India vs. Cricket Association of Bihar and others, (2015) 3 SCC 251, stated following:

“103. BCCI is a very important institution that discharges important public functions. Demands of institutional integrity are, therefore, heavy and need to be met suitably in larger public interest. Individuals are birds of passage while institutions are forever. The expectations of the millions of cricket lovers in particular and public at large in general, have lowered considerably the threshold of tolerance for any mischief, wrongdoing or corrupt practices which ought to be weeded out of the system.”

Judicial Review of Ban on playing:

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Scope of section 23-C of Mines and Minerals (Development and Regulation) Act, 1957

Validity of Rule 44-BB framed under Section 15 read with Section 23-C of the Mines and Minerals (Development and Regulation) Act, 1957 by Gujarat Government.

By way of Rule 44-BB, movement of sand beyond the border of the State of Gujarat was prohibited. Rule 44-BB reads as under:

Continue reading “Scope of section 23-C of Mines and Minerals (Development and Regulation) Act, 1957”

Expeditious Trial of Commercial Suits

Object of Commercial Courts:

Though the Legislature, by enacting the Commercial Courts Act, 2015, intended expeditious disposal of suits which qualify as a commercial suits thereunder, but it is found that in most of the commercial suits, applications as this, for delayed filing of documents or for condonation of delay in taking requisite steps in such suits, are being filed and which were envisaged by the Commercial Courts Act when fixing the timelines for disposal of such cases, to be an exception rather than norm.

Duty of all stakeholders:

The effort to expedite, endeavoured by the Commercial Courts Act, cannot be only by the Courts, as appears to be understood, but must be by all the stakeholders i.e. litigants as well as the counsels. They are required to pay extra attention to,

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Limitation period to approach National Green Tribunal

National Green Tribunal:

The Green Tribunal has been established under a constitutional mandate provided in Schedule VII List I Entry 13 of the Constitution of India, to implement the decision taken at the United Nations Conference on Environment and Development. The Tribunal is a specialized judicial body for effective and expeditious disposal of cases relating to environmental protection and conservation of forests and other natural resources including enforcement of any legal right relating to environment. The right to healthy environment has been construed as a part of the right to life under Article 21 by way of judicial pronouncements. Therefore, the Tribunal has special jurisdiction for enforcement of environmental rights.

Scope of appeal to Supreme Court:

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Right to Information

Much before the enactment of RTI Act, which came on the statute book in the year 2005, Supreme Court repeatedly emphasised the people’s right to information to be a facet of Article 19(1)(a) of the Constitution. It has been held that the right to information is a fundamental right and flows from Article 19(1)(a), which guarantees right to speech. This right has also been traced to Article 21 which concerns about right to life and liberty. There are umpteen number of judgments declaring that transparency is the key for functioning of a healthy democracy.

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Procedure for disposal of Second Appeal by High Court.

Framing of question of law:

High Court framed 6 questions of law at the time of admission of appeal but delivered no judgement on those questions. However it framed two other questions in the judgement and decided the appeal. Procedure if legal?

First, though it rightly framed six substantial questions of law at the time of admission of the appeal on 30.11.2002 as arising in the case but erred in not answering these questions.

The High Court had the jurisdiction to decide the second appeal only on the six substantial questions of law framed at the time of admitting the appeal. In other words, the jurisdiction of the High Court to decide the second appeal was confined only to six questions framed and not beyond it. Continue reading “Procedure for disposal of Second Appeal by High Court.”