5 Important Supreme Court Judgments May 9, 2019

1. Shio Shankar Dubey v. The State of Bihar

The Indian Penal Code, 1860 - Section 302 - Murder - Witness - Close Relative - The mere fact that witness is related does not lead to inference that such witness is an interested witness.

PW11, who is a brother of the deceased, has fully corroborated the prosecution case in his evidence. In spite of thorough cross-examination, the witnesses could not be shaken. The submission of the appellant that witnesses PW11 and PW13 being related to the deceased are interested witnesses and should not be relied does not commend us. The mere fact that deceased was brother of the informant and PW13 is the husband of the niece of the deceased and does not impeach their evidence in any manner. The mere fact that witness is related does not lead to inference that such witness is an interested witness.



Case Number : Crl.A. No. 1617 of 2014 09-05-2019
Petitioner's Advocate : Rajeev Singh
Bench : Hon'ble Mr. Justice Ashok Bhushan, Hon'ble Mr. Justice K.M. Joseph


2. Karuna Kansal v. Hemant Kansal

The Code of Civil Procedure, 1908 - Order 43 Rule 1 (d) - Appeal - Matrimonial Dispute - The appellant is the second wife of respondent No.1 (husband) - After passing of the ex parte decree for dissolution of marriage of respondent No.1 with respondent No.2 and expiry of period of limitation for filing appeal, respondent No.1 (husband) entered into matrimony with appellant - Respondent No.2 (first wife of respondent No.1) filed the appeal of which the appellant had no knowledge, but the fact of respondent No.1 having married the appellant was indeed stated before the High Court - When respondent No.1 stated that she was having no problem with the appellant, the High Court set aside the ex parte decree and directed that, “the parties shall live together as husband and wife” - the appellant was not made a party to the appeal and nor she was heard by the High Court - the High Court, even after taking note of the factum of the marriage of the appellant with respondent No.1, has not adverted to the consequences thereof and has given such directions, which may not be capable of due performance - In such a situation, where the impugned order was passed without hearing the appellant and not issuing any notice of the appeal to her and yet giving such directions, which may not be capable of being carried out, the impugned order is wholly without jurisdiction and legally unsustainable and it has to be set aside.



Case Number : C.A. No. 4847 - 4848 of 2019 09-05-2019
Petitioner's Advocate : Niraj Sharma
Bench : Hon'ble Mr. Justice Abhay Manohar Sapre, Hon'ble Mr. Justice Dinesh Maheshwari

3. Omanakuttan v. The State of Kerala

The Indian Penal Code, 1860 - Sections 320 and 326 - Grievous Hurt - Voluntarily causing grievous hurt by dangerous weapons or means - Acid Attack - the act of causing grievous hurt by use of acid, by its very nature, is a gruesome and horrendous one, which, apart from causing severe bodily pain, leaves the scars and untold permanent miseries for the victim.

The legislature having taken note of the gravity of such an offence has, by way of Act No. 13 of 2013, inserted Sections 326A and 326B IPC, providing higher punishment with minimum imprisonment for the offences of voluntarily causing grievous hurt by use of acid and voluntarily throwing or attempting to throw acid. The present one being a matter relating to the offence committed in the year 1997, we need not elaborate on the provisions now inserted, but, looking to the gravity of offence, the punishment as awarded in this matter prima facie appears to be rather inadequate. It was for this reason that, while entertaining the matter, this Court had issued notice to examine the question if the punishment deserves to be enhanced. However, having regard to the facts and circumstances of the case and more particularly the facts that the offence was committed in the year 1997 and the accused-appellant is now said to be 63 years of age, we would refrain from enhancing the punishment and would prefer leaving the matter at that only. For what has been discussed hereinabove, this appeal fails and is, therefore, dismissed.



Case Number : Crl.A. No. 873 of 2019 09-05-2019
Petitioner's Advocate : Surinder Kumar Gupta
Bench : Hon'ble Mr. Justice Abhay Manohar Sapre, Hon'ble Mr. Justice Dinesh Maheshwari

4. Power Grid Corporation of India v. Tamil Nadu Generation and Distribution Co. Ltd.

Electricity Law - The Central Electricity Regulatory Commission (Terms and Conditions of Tariff) Regulations, 2001 - Regulation 1.13(a) - Central Electricity Regulatory Commission [CERC] - Issue relating to capitalization of Foreign Exchange Rate Variation [FERV] - Apportionment of FERV into debt and equity after FERV has been calculated and added to capital cost - the present question regarding the apportionment of FERV between debt and equity is not a question of law, much less a substantial question of law - Noting the premise on which the Act was enacted and the fact that the Tariff Regulations, 2001 prescribed under the aegis of this Act do not provide for apportionment of FERV in a particular debt­-equity ratio, this Court is not inclined to interfere in the matter.



Case Number : C.A. No. 684 of 2007 09-05-2019
Petitioner's Advocate : Pramod Dayal
Respondent's Advocate : Siddhartha Chowdhury
Bench : Hon'ble Mr. Justice N.V. Ramana, Hon'ble Mr. Justice Mohan M. Shantanagoudar

5. Birla Corporation Ltd. v. Adventz Investments and Holdings Ltd.

The Indian Penal Code, 1860 - Sections 22 and 29 - “document” - “moveable property” - "theft" - the “document” as defined in Section 29 IPC is a “moveable property” within the meaning of Section 22 IPC which can be the subject matter of theft. The information contained thereon in the documents would also fall within the purview of the “corporeal property” and can be the subject matter of the theft.

The Code of Criminal Procedure, 1973 - Section 202 - The object of investigation under Section 202 Cr.P.C. is “for the purpose of deciding whether or not there is sufficient ground for proceeding”. 

The enquiry under Section 202 Cr.P.C. is to ascertain the fact whether the complaint has any valid foundation calling for issuance of process to the person complained against or whether it is a baseless one on which no action need be taken. The law imposes a serious responsibility on the Magistrate to decide if there is sufficient ground for proceeding against the accused. The issuance of process should not be mechanical nor should be made as an instrument of harassment to the accused. Issuance of process to the accused calling upon them to appear in the criminal case is a serious matter and lack of material particulars and non-application of mind as to the materials cannot be brushed aside on the ground that it is only a procedural irregularity. 

Facts of the Case

In the present case, the satisfaction of the Magistrate in ordering issuance of process to the respondents is not well founded and the order summoning the accused cannot be sustained. The impugned order of the High Court holding that there was compliance of the procedure under Section 202 Cr.P.C. cannot be sustained and is liable to be set aside.



The Indian Penal Code, 1860 - Section 380 - Theft - Whether temporary removal of the documents and using them in the litigations pending between the parties would amount to theft warranting lodging of a criminal complaint ? Held, In using the documents, when there is no dishonest intention to cause “wrongful loss” to the complainant and “wrongful gain” to the respondents, it cannot be said that the ingredients of theft are made out.

The complaint does not allege that there was any wrongful gain to the respondents or wrongful loss to the appellant-Company so as to constitute ingredients of theft under Section 378 IPC. The complaint only alleges that the copies of the document were used in the CLB proceedings by respondents No.1 to 5. There is no allegation of “wrongful gain” to the respondents or “wrongful loss” to the appellant.

The Companies Act, 1956 - Sections 235, 237, 247, 250, 397, 398, 402 and 403 - The Indian Penal Code, 1860 - Sections 379, 403 and 411 IPC read with Section 120B - Whether the allegations in the complaint and the statement of the complainant and other materials before the Magistrate were sufficient enough to constitute prima-facie case to justify the Magistrate’s satisfaction that there were sufficient grounds for proceeding against the respondents-accused and whether there was application of mind by the learned Magistrate in taking cognizance of the offences and issuing process to the respondents.

The Code of Criminal Procedure, 1973 - Sections 200 an 202 - Complaint - Enquiry - issuance of process the allegations in the complaint and complainant’s statement and other materials must show that there are sufficient grounds for proceeding against the accused.



To be summoned/to appear before the Criminal Court as an accused is a serious matter affecting one’s dignity and reputation in the society. In taking recourse to such a serious matter in summoning the accused in a case filed on a complaint otherwise than on a police report, there has to be application of mind as to whether the allegations in the complaint constitute essential ingredients of the offence and whether there are sufficient grounds for proceeding against the accused. At the stage of issuance of process to the accused, the Magistrate is not required to record detailed orders. But based on the allegations made in the complaint or the evidence led in support of the same, the Magistrate is to be prima facie satisfied that there are sufficient grounds for proceeding against the accused. While ordering issuance of process against the accused, the Magistrate must take into consideration the averments in the complaint, statement of the complainant examined on oath and the statement of witnesses examined. Since it is a process of taking a judicial notice of certain facts which constitute an offence, there has to be application of mind whether the materials brought before the court would constitute the offence and whether there are sufficient grounds for proceeding against the accused. It is not a mechanical process.

The following questions arise for consideration in these appeals:- 

(i) Whether the allegations in the complaint and the statement of the complainant and other materials before the Magistrate were sufficient to constitute prima facie case to justify the satisfaction of the Magistrate in issuing process against the respondents? 

(ii) Whether the respondents are right in contending that in taking cognizance of the offences under Sections 380, 411 and 120-B IPC and ordering issuance of process against the respondents is vitiated due to nonapplication of mind? 

(iii) Whether the High Court was right in quashing the criminal proceedings qua documents No.1 to 28 on the ground that mere information contained in the documents cannot be considered as “moveable property” and cannot be the subject of the offence of theft or receipt of stolen property? 

(iv) Whether filing of the documents in question in the petition before the Company Law Board to substantiate their case of oppression and mismanagement and document No.1 in the civil suits challenging revocation of the trust deeds would amount to theft justifying taking cognizance of the offences? 



(v) Whether there is dishonest moving of documents causing wrongful loss to the appellants and wrongful gain to the respondents? 

(vi) Whether filing of documents in the judicial proceedings can be termed as an act of theft causing wrongful gain to oneself and wrongful loss to the opponent so as to attract the ingredients of Section 378 IPC?

Conclusions 

  • By the order of the Magistrate dated 08.10.2010, cognizance was taken against respondents No.1 to 16 for commission of the offences under Sections 380, 411 and 120B IPC. There are no averments in the complaint nor are there allegations in the statement of the complainant or the witness P.B. Dinesh as to when and how the theft was committed and the order of the Magistrate dated 08.10.2010 taking cognizance of the criminal case against respondents No.1 to 16 qua documents No.1 to 54 is liable to be set aside. 
  • It is held that the “document” as defined in Section 29 IPC is a “moveable property” within the meaning of Section 22 IPC which can be the subject matter of theft. The information contained thereon in the documents would also fall within the purview of the “corporeal property” and can be the subject matter of the theft. The findings of the High Court is modified to that extent. 
  • In the facts and circumstances of the present case, use of documents No.1 to 28 and documents No.29 to 54 by the respondents in judicial proceedings is to substantiate their case namely, “oppression and mismanagement” of the administration of appellant-Company and their plea in other pending proceedings and such use of the documents in the litigations pending between the parties would not amount to theft. No “dishonest intention” or “wrongful gain” could be attributed to the respondents and there is no “wrongful loss” to the appellant so as to attract the ingredients of Sections 378 and 380 IPC. 
  • Considering the facts and circumstances of the present case and the number of litigations pending between the parties, in our considered view, continuation of the criminal proceedings would be an abuse of the process of the court. The order of the Magistrate dated 08.10.2010 taking cognizance of the offences and the issuance of summons to respondents No.1 to 16 and the criminal proceedings thereon are liable to be quashed.



Case Number : Crl. A. No. 875 of 2019 09-05-2019
Petitioner's Advocate : Senthil Jagadeesan
Bench : Hon'ble Mrs. Justice R. Banumathi, Hon'ble Mr. Justice R. Subhash Reddy

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