Sunday 17 March 2024

Whether the court can acquit accused due to absence of medical evidence if reliable oral evidence is available in the case?

 It is true that unfortunately there is no medical examination as PW3 father of victim, who was an illiterate person hailing from another District, seems to have left with the victim to reach to his native and on the way, he has realized that she was no more alive. Thereafter, he had performed last rituals. Consequently, there is no supportive medical evidence. However, merely absence of medical evidence, is no good ground to discard the direct and ocular evidence of parents coupled with evidence of an independent witness regarding rape. Law does not make it imperative for prosecution to corroborate its case by adducing medical evidence. When direct evidence inspires confidence, case of prosecution can still be accepted. Here is a case of such nature where parents and independent witness, who have seen the incident, have narrated the occurrence while in witness box. Their testimonies have not been rendered doubtful. Hence, even in absence of medical evidence, case of prosecution can safely said to be inspiring confidence and can be readily accepted. {Para 12}

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

BENCH AT AURANGABAD

CRIMINAL APPEAL NO. 673 OF 2002

Bhaulal S/o. Dokraji Reswal Vs  The State of Maharashtra

CORAM : ABHAY S. WAGHWASE, J.

PRONOUNCED ON : 06 MARCH, 2024

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Under which circumstances the Appellate court can permit defendant to Add Facts Omitted Earlier In Written Statement?

The matter in hand would go to show that the petitioner/ defendant being illiterate and pardanashin lady was in fact unable to understand the pleadings in the written statement and therefore, in order to do justice effectively, the proposed amendment which is in the nature of clarification, ought to have been considered by the learned First Appellate Court. However, while taking hyper technical aspect and without considering the status of the defendant, such amendment was rejected. {Para 30}

31. To my mind, the impugned order suffers from improper exercise of jurisdiction. No doubt, the proposed amendment/facts were to the knowledge of the defendant when she filed the written statement, that ground could have been considered qua the status of the defendant being illiterate and pardanashin lady. At the most,costs could have been imposed since the proposed amendment is not in a mala fide manner and certainly it is not causing any prejudice to the plaintiff.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

NAGPUR BENCH, NAGPUR.

WRIT PETITION NO. 1608 OF 2021

 Hasinabi w/o Abdul Latif Vs  Mohammad Sharif S/o Abdul Rajjak, 

CORAM : B.P. DESHPANDE, J.

PRONOUNCED ON : 7TH MARCH, 2024

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Tripura HC: Formal defect’ for the purpose of withdrawal of suit must be given a liberal interpretation meaning various kinds of defects not affecting merits of plea

What is a “formal defect” has been explained by the Apex Court in a recent decision rendered in case of V. Rajendran and another versus Annasamy Pandian (Dead) through Legal representatives Karphyayani Natchiar reported in (2017) 5 SCC 63 wherein it was held as under:

“10. In K.S. Bhoopathy and Ors. vs. Kokila and Ors. (2000) 5 SCC 458, it has been held that it is the duty of the Court to be satisfied about the existence of “formal defect” or “sufficient grounds” before granting permission to withdraw the suit with liberty to file a fresh suit under the same cause of action. Though, liberty may lie with the plaintiff in a suit to withdraw the suit at any time after the institution of suit on establishing the “formal defect” or “sufficient grounds”, such right cannot be considered to be so absolute as to permit or encourage abuse of process of Court. The fact that the plaintiff is entitled to abandon or withdraw the suit or part of the claim by itself, is no licence to the plaintiff to claim or to do so to the detriment of legitimate right of the defendant. When an application is filed under Order XXIII Rule 1(3) CPC, the Court must be satisfied about the

“formal defect” or “sufficient grounds”. “Formal defect” is a defect of form prescribed by the Rules of procedure such as, want of notice under Section 80 CPC, improper valuation of the suit, insufficient court fee, confusion regarding identification of the suit property, misjoinder of parties, failure to disclose a cause of action etc. “Formal defect” must be given a liberal meaning which connotes various kinds of defects not affecting the merits of the plea raised by either of the parties.

 “Formal defect” has been described as a defect of form prescribed by the Rules of procedure such as, want of notice under Section80 CPC, improper valuation of the suit, insufficient court fee, confusion regarding identification of the suit property, misjoinder of parties, failure to disclose a cause of action etc. As held hereinabove by the Apex Court “Formal defect” must be given a liberal meaning which connotes various kinds of defects not affecting the merits of the plea raised by either of the parties. Evidently, lack of pecuniary jurisdiction in the instant case did not affect the merits of the case of either of the parties rather it would fall within the meaning of formal defect as provided under Order XXIII Rule 3(a). Since the trial had not even commenced and the lack of pecuniary jurisdiction was pointed out to the learned trial Court at the very outset, the plaintiff had an option either to seek return of the plaint to be presented before the concerned court or to seek withdrawal of the suit with a liberty to file a fresh suit after curing the defect.

{Para 8}

HIGH COURT OF TRIPURA

_A_G_A_R_T_A_L_A_

CRP No.59 of 2023

Sri Rathindra Chandra Das Vs Sri Barun Chandra Das and another

Coram: HON’BLE THE CHIEF JUSTICE MR. APARESH KUMAR SINGH

Dated: 13.02.2024

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Saturday 16 March 2024

Whether drug inspector appointed under Drugs and cosmetics Act can conduct raid in respect of Ayurvedic medicine under Drugs and Magic Remedies Act?

 It is no doubt that for the offending or misleading advertisement issued by the Medical Practitioners, action is liable to be taken as per the provisions of the Drugs and Magic Remedies (Objectionable Advertisements) Act, 1954. But, in the instant case, whether the fourth respondent is competent and has jurisdiction to initiate action is the moot question. A perusal of the Government Order in G.O.(Ms) No. 421, Health and Family Welfare (IM2(2)) Department, dated 07.11.2007 notifies that under the powers conferred by Section 33-G of the Drugs and Cosmetics Act, 1940, the Governor of Tamil Nadu appoints the District Siddha Medical Officers of the Indian Medicine and Homeopathy Department to be Inspectors for the areas within their respective jurisdiction, for Ayurveda, Siddha and Unani Drugs. This Notification drawing powers from the Drugs and Cosmetics Act, 1940, appoints Inspectors of Ayurveda, Siddha and Unani Drugs for Indian Medicine and Homeopathy Department. Chapter IV-A of the Act, specifically dedicated to Ayurveda, Siddha and Unani Medicines. The impugned advertisement was made for a medicine under the category of Ayurveda, Siddha and Unani. In that event, the exclusive jurisdiction is conferred with the Drug Inspector appointed under Chapter IV-A of the Act. The Government Order in G.O.(Ms) No. 313, Health and Family Welfare Department, dated 23.09.2003 reveals that the fourth respondent was appointed as a Drug Inspector under Section 21 of the Act, who is empowered to deal with the Allopathy drugs only and he is not an Inspector appointed under Chapter IV-A Section 33-G of the Act. Therefore, the fourth respondent has no jurisdiction to issue such notice. {Para 5}

7. It is also noted that the Government issued Notification in the Official Gazette for appointing Drug Inspectors of Indian Medicine District wise at the Office of the District Siddha Medical Officer. Therefore, it is very clear that the Inspectors of Allopathy medicine and Inspector of Ayurveda, Siddha and Unani are acting in different spheres exercising their powers with respect to the medicine of their respective fields. An Allopathy Doctor cannot be said to be an expert in Siddha or Ayurveda Medicine. Likewise, a Siddha Doctor cannot be an expert in respect of Allopathy medicine. The advertisement standards can be controlled only by the authorities appointed under the respective provisions of the Act. In that view of the matter, if at all an action has to be initiated, it should be initiated by the Inspectors appointed under Schedule IV-A of the Act and not by an Inspector appointed under Section 21 of the Act. In view of the same, the action initiated by the fourth respondent is absolutely without jurisdiction.

 IN THE HIGH COURT OF MADRAS

W.P. Nos. 34099 of 2012 and 45 of 2013

Decided On: 11.04.2022

V. Dharmalingam Vs. Union of India and Ors.

Hon'ble Judges/Coram:

M. Govindaraj, J.

Citation: MANU/TN/3934/2022.

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