10 Important Supreme Court Judgments May 7, 2019

1. State by the Superintendent of Police v. Shakul Hammed

The Unlawful Activities(Prevention) Act, 1967 - Section 43D(2)(b) - Scope of - The necessary ingredients of the proviso to Section 43D(2)(b) of the UAP Act, 1967 has to be fulfilled for its proper application. These are as under:­ A. It has not been possible to complete the investigation within the period of 90 days. B. A report to be submitted by the Public Prosecutor. C. Said report indicating the progress of investigation and the specific reasons for detention of the accused beyond the period of 90 days. D. Satisfaction of the Court in respect of the report of the Public Prosecutor.

Referred Case : State of Maharashtra v. Surendra Pundlik Gadling, 2019 SCC Online SC 188

Case Number : Crl.A. No. 863 - 864 of 2019 07-05-2019
Petitioner's Advocate : B.V. Balaram Das
Bench : Hon'ble Mr. Justice A.M. Khanwilkar, Hon'ble Mr. Justice Ajay Rastogi


2. Union of India v. Mubarak @ Mohammed Mubarak

Case Number : Crl.A. No. 865 of 2019 07-05-2019
Petitioner's Advocate : B.V. Balaram Das
Bench : Hon'ble Mr. Justice A.M. Khanwilkar, Hon'ble Mr. Justice Ajay Rastogi



3. Rafiq Qureshi v. Narcotic Control Bureau Eastern Zonal Unit

The Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 32B - Factors to be taken into account for imposing higher than the minimum punishment - Interpretation of.

Punishment awarded by the trial court of a sentence higher than the minimum relying on the quantity of substance cannot be faulted even though the Court had not adverted to the factors mentioned in clauses (a) to (b) as enumerated under Section 32B. However, when taking any factor into consideration other than the factors enumerated in Section 32B, (a) to (f), the Court imposes a punishment higher than the minimum sentence, it can be examined by higher Courts as to whether factor taken into consideration by the Court is a relevant factor or not. Thus in a case where Court imposes a punishment higher than minimum relying on a irrelevant factor and no other factor as enumerated in Section 32B(a to f) are present award of sentence higher than minimum can be interfered with.

Issues 

i) Whether in absence of any of the factors enumerated in Section 32B from clauses (a) to (f) whether the trial court could have awarded punishment higher than the minimum term of imprisonment. 

ii) Whether the trial court could not take any other factor into consideration apart from factors mentioned in clauses (a) to (f) while imposing punishment higher than the minimum term of imprisonment?

Facts of the Case



In the present case The High Court held that although gross quantity of 8.175 Kg. of Heroin was alleged to have been recovered from the appellant but actual quantity of Heroine which was found to be in possession was only 609.6 gm. The High Court held that since the appellant was found in possession of Narcotic Drugs as per the analysis report to 609.6 gm. which is much higher than the commercial quantity, punishment higher than the minimum is justified. The High Court reduced the punishment from 18 years to 16 years. The Apex Court, thus, uphold the judgment of the trial court and the High Court awarding the punishment higher than the minimum, however, looking to all the facts and circumstances of the present case including the fact that it was found by the High Court that the appellant was only a carrier, we find that the ends of justice will be sub-served in reducing the sentence from 16 years to 12 years. Thus, while maintaining the conviction of the appellant the appellant is sentenced to undergo 12 years rigorous imprisonment with fine of Rs. 2 lakh and in default of payment of such fine the appellant shall further undergo for a simple imprisonment for six months. The appeal is partly allowed to the extent as indicated above.

Case Number : Crl.A. No. 567 of 2019 07-05-2019
Petitioner's Advocate : Vishwa Pal Singh
Bench : Hon'ble Mr. Justice Ashok Bhushan, Hon'ble Mr. Justice K.M. Joseph

4. Hemareddi (d) Through Lrs. v. Ramachandra Yallappa Hosmani

The Code of Civil Procedure, 1908 - Order XXII Rule 3 and Order XXII Rule 4 - Procedure in case of death of one of several plaintiffs or of sole plaintiff - Procedure in case of death of one of several defendants or of sole defendant - Discussed.

Case Number : C.A. No. 4103 of 2008 07-05-2019
Respondent's Advocate : Ashok Kumar Sharma
Bench : Hon'ble Mr. Justice Ashok Bhushan, Hon'ble Mr. Justice K.M. Joseph



5. Ashoksinh Jayendrasinh v. The State of Gujarat

The Indian Penal Code, 1860 - Section 302 IPC read with Section 34 IPC and Section 307 IPC read with Section 34 IPC - The Arms Act, 1959 - Section 25(c) - There was darkness at the time and the place of occurrence making it difficult for the witnesses to identify the assailants. The evidence of eye-witnesses are contradictory to each other as to the firing of the fatal blow. The guilt of the accused has not been proved beyond reasonable doubt and the benefit has to be given to the accused.

Case Number : Crl.A. No. 1123 of 2010 07-05-2019
Petitioner's Advocate : Ruchi Kohli
Respondent's Advocate : Hemantika Wahi
Bench : Hon'ble Mrs. Justice R. Banumathi, Hon'ble Mr. Justice S. Abdul Nazeer

6. Sasikala Pushpa v. The State of Tamil Nadu

Vakalatnama - A vakalatnama is only a document which authorizes an advocate to appear on behalf of the party and by and large, it has no bearing on the merits of the case.

The Indian Penal Code, 1860 - Sections 193, 466, 468 and 471 - Even assuming that the version in the vakalatnama is wrong, mere incorrect statement in the vakalatnama would not amount to create a forged document and it cannot be the reason for exercising the jurisdiction under Section 340 Cr.P.C. for issuance of direction to lodge the criminal complaint.

There is no prima facie evidence to show that the appellants had intended to cause damage or injury or any other acts. Since the disputed version in the vakalatnama appears to be an inadvertent mistake with no intention to make misrepresentation, the direction of the High Court to lodge a criminal complaint against the appellants cannot be sustained and the same is liable to be set aside.

Case Number : Crl.A. No. 855 of 2019 07-05-2019
Petitioner's Advocate : D. Abhinav Rao
Respondent's Advocate : M. Yogesh Kanna
Bench : Hon'ble Mrs. Justice R. Banumathi, Hon'ble Mr. Justice S. Abdul Nazeer



7. Jaswant Singh v. Jaspal Singh

Appeal to Supreme Court - Concurrent findings of three courts - Since all the three Courts have concurrently and rightly concluded in favour of the plaintiffs and consequently decreed O.S. No. 388 of 1986, no interference is called for. Accordingly, the appeal stands dismissed.

Case Number : C.A. No. 5962 of 2010 07-05-2019
Petitioner's Advocate : Jay Kishor Singh
Bench : Hon'ble Mr. Justice N.V. Ramana, Hon'ble Mr. Justice Mohan M. Shantanagoudar
Judgment By : Hon'ble Mr. Justice Mohan M. Shantanagoudar

8. Arulmighu Nellukadai Mariamman Tirukkoil v. Tamilarasi (dead) By Lrs.

The Code of Civil Procedure, 1908 - Section 100 - Second Appeal - Mandatory Requirements of.

The High Court failed to frame any substantial question of law arising in the case while admitting the appeal as required under Section 100 (4) of the Code of Civil Procedure, 1908 and further failed to decide the appeal as provided under Section 100 (5) of the CPC. It is noticed that the High Court framed two substantial questions of law (see Para 7 of the impugned judgment) for the first time in the impugned judgment itself. In other words, what was required to be done by the High Court at the time of admission of the appeal to formulate a question of law after hearing the appellant as provided under Section 100 (4) of the CPC, but the High Court did it in the impugned judgment. Similarly, the High Court could have taken recourse to the powers conferred by proviso to Section 100 (5) of the CPC for framing any additional question of law at the time of final hearing of the appeal by assigning reasons for framing additional question, if it considered that any such question was involved. It was, however, not done. Instead, the High Court framed the questions for the first time while delivering the impugned judgment. The procedure and the manner in which the High Court decided the second appeal regardless of the fact whether it was allowed or dismissed cannot be countenanced. It is not in conformity with the mandatory procedure laid down in Section 100 of the CPC.

Referred Case : Surat Singh v. Siri Bhagwan, (2018) 4 SCC 562

Case Number : C.A. No. 4666 of 2019 07-05-2019
Petitioner's Advocate : R. Chandrachud
Bench : Hon'ble Mr. Justice Abhay Manohar Sapre, Hon'ble Mr. Justice Dinesh Maheshwari
Judgment By : Hon'ble Mr. Justice Abhay Manohar Sapre

9. Bhivchandra Shankar More v. Balu Gangaram More

The Indian Limitation Act, 1908 - Section 5 - The Code of Civil Procedure, 1908 - Order IX Rule 13 - Setting aside decree ex parte against defendant - Condonation of Delay - "Sufficient Cause" - the time spent in pursuing the application under Order IX Rule 13 CPC is to be taken as “sufficient cause” for condoning the delay in filing the first appeal.

Only in cases where the defendant has adopted dilatory tactics or where there is lack of bonafide in pursuing the two remedies consecutively, the court may decline to condone the delay in filing the first appeal. If the court refuses to condone the delay in the time spent in pursuing the remedy under Order IX Rule 13 CPC, the defendant would be deprived of the statutory right of appeal in challenging the decree on merits. [Para 14]

The Code of Civil Procedure, 1908 -  Section 96 - Order IX Rule 13 - Appeal from original decree - Setting aside decree ex parte against defendant - Condonation of Delay - The right of appeal under Section 96(2) CPC is a statutory right and the defendant cannot be deprived of the statutory right of appeal merely on the ground that the application filed by him under Order IX Rule 13 CPC has been dismissed.

The scope of Order IX Rule 13 CPC and Section 96(2) CPC are entirely different. In an application filed under Order IX Rule 13 CPC, the Court has to see whether the summons were duly served or not or whether the defendant was prevented by any “sufficient cause” from appearing when the suit was called for hearing. If the Court is satisfied that the defendant was not duly served or that he was prevented for “sufficient cause”, the court may set aside the exparte decree and restore the suit to its original position. In terms of Section 96(2) CPC, the appeal lies from an original decree passed ex-parte. In the regular appeal filed under Section 96(2) CPC, the appellate court has wide jurisdiction to go into the merits of the decree. The scope of enquiry under two provisions is entirely different. Merely because the defendant pursued the remedy under Order IX Rule 13 CPC, it does not prohibit the defendant from filing the appeal if his application under Order IX Rule 13 CPC is dismissed. [Para 11]

The Code of Civil Procedure, 1908 -  Section 96 - Appeal from original decree - Condonation of Delay - An appeal under Section 96 CPC is a statutory right. Generally, delays in preferring appeals are required to be condoned, in the interest of justice, where there is no gross negligence or deliberate inaction or lack of bonafide is imputable to the party seeking condonation of delay.

A conjoint reading of Order IX Rule 13 CPC and Section 96(2) CPC indicates that the defendant who suffered an ex-parte decree has two remedies:- (i) either to file an application under Order IX Rule 13 CPC to set aside the ex-parte decree to satisfy the court that summons were not duly served or those served, he was prevented by “sufficient cause” from appearing in the court when the suit was called for hearing; (ii) to file a regular appeal from the original decree to the first appellate court and challenge the ex-parte decree on merits. [Para 10]

The following points arise for consideration:- 

(i) Whether the time spent in the proceedings taken to set aside the ex-parte decree constitute “sufficient cause” within the meaning of Section 5 of the Indian Limitation Act, 1908 so as to condone the delay in preferring an appeal against the ex-parte decree on merits? 

(ii) When an application filed under Order IX Rule 13 CPC has been dismissed on merits, whether regular appeal under Section 96(2) CPC is barred?

It is pertinent to note that as per Section 97 CPC where any party aggrieved by a preliminary decree does not appeal from such decree, he shall be precluded from disputing its correctness in any appeal which may be preferred from the final decree. The object is that the questions decided by the court at the stage of passing preliminary decree cannot be challenged at the time of final decree. If no appeal had been preferred against the preliminary decree, the suit filed by the respondents-plaintiffs being a suit for partition, the appellant would be deprived of the opportunity in challenging the decree on merits. In the interest of justice, the appellant and respondents No.14 and 15 are to be given an opportunity to challenge the ex-parte decree dated 04.07.2008 on merits, notwithstanding the dismissal of their application filed under Order IX Rule 13 CPC.

Case Number : C.A. No. 4669 of 2019 07-05-2019
Petitioner's Advocate : K.N. Rai
Respondent's Advocate : Abha R. Sharma
Bench : Hon'ble Mrs. Justice R. Banumathi, Hon'ble Mr. Justice R. Subhash Reddy
Judgment By : Hon'ble Mrs. Justice R. Banumathi

10. State Rep By Inspector of Police Central Bureau of Investigation v. M. Subrahmanyam

The Prevention of Corruption Act, 1988 - Section 17 - The truth and veracity of the authorisation order not being in issue, the failure to file it along with the charge­sheet was an omission constituting a procedural lapse only.

The failure to bring the authorisation on record, as observed, was more a matter of procedure, which is but a handmaid of justice. Substantive justice must always prevail over procedural or technical justice. To hold that failure to explain delay in a procedural matter would operate as res judicata will be a travesty of justice considering that the present is a matter relating to corruption in public life by holder of a public post. The rights of an accused are undoubtedly important, but so is the rule of law and societal interest in ensuring that an alleged offender be subjected to the laws of the land in the larger public interest. To put the rights of an accused at a higher pedestal and to make the rule of law and societal interest in prevention of crime, subservient to the same cannot be considered as dispensation of justice. A balance therefore has to be struck. A procedural lapse cannot be placed at par with what is or may be substantive violation of the law.

Case Number : Crl.A. No. 853 of 2019 07-05-2019
Petitioner's Advocate : Arvind Kumar Sharma
Bench : Hon'ble Mr. Justice Arun Mishra, Hon'ble Mr. Justice Navin Sinha
Judgment By : Hon'ble Mr. Justice Navin Sinha

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