Saturday, 12 June 2021

How to appreciate evidence of a prosecution witness whose statement is not recorded by the police?

  It appears that the learned counsel for the appellant is entertaining an apprehension regarding the prejudice which may likely to be caused to the appellant if the investigating officer has not recorded the statements of the witnesses questioned. In such case, the previous statements of the witnesses will not be available and veracity of the witnesses cannot be tested with reference to their previous statements, is the contention. If that be so, the witnesses examined under Section 311 Cr.P.C and the witnesses examined as defence witnesses also suffer the very same infirmity. Law never envisages such an eventuality. The court has to appreciate the evidence of witnesses by taking it as a whole and conclude whether the evidence rendered by the witness is trustworthy or not. {Para 17}

18. The upshot of the above discussion is that under Section 161(3) Cr.P.C it is not obligatory on the police officer to record the statement of all the witnesses examined by him during the course of investigation. But if he exercises his discretion of reducing the statements into writing and the prosecution purposes to examine that witness in court, the accused it entitled to get the copy of the statement and prosecution is bound to furnish it to the accused. The failure to comply with the requirements of section 161(3) may affect the credibility to be attached to the evidence of the witnesses. But it does not render the evidence as inadmissible and it will not destroy the fabric of the prosecution case. The legitimate object of the prosecution is not to secure a conviction, but to see that justice is done in a proper manner. Doubtless, the probative value of the evidence tendered by such witnesses is left open, which could be challenged by the appellant at the  appropriate time and before the appropriate forum in accordance with law.

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Can the court convict the accused for an offence U/S 304-B of IPC if charge U/S 498A of IPC is not framed against the accused?

 Lastly, the counsel on behalf of the appellant argued that without any charges under Section 498A, IPC a conviction under Section 304-B, IPC cannot be sustained. On this aspect this Court in the case of Kamesh Panjiyar v. State of Bihar, (2005) 2 SCC 388 held as under:

“12. …….It is to be noted that Sections 304-B and 498-A IPC cannot be held to be mutually inclusive. These provisions deal with two distinct offences. It is true that cruelty is a common essential to both the sections and that has to be proved. The  Explanation to Section 498-A gives the meaning of “cruelty”. In Section 304-B there is no such explanation about the meaning of “cruelty”. But having regard to the common background to these offences it has to be taken that the meaning of “cruelty” or “harassment” is the same as prescribed in the Explanation to Section 498-A under which “cruelty” by itself amounts to an offence. Under Section 304-B it is “dowry death” that is punishable and such death should have occurred within seven years of marriage. No such period is mentioned in Section 498-A. If the case is established, there can be a conviction under both the sections.”

(emphasis supplied) {Para 19}

20. Therefore, the argument raised by the counsel on behalf of the appellant cannot be accepted as the offences under Section 498-A and Section 304-B, IPC are distinct in nature. Although cruelty is a common thread existing in both the offences, however the ingredients of each offence are distinct and must be proved separately by the prosecution. If a case is made out, there can be a conviction under both the sections.






Author: N. V. RAMANA, CJI.

DATED : 28.05.2021

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Wednesday, 9 June 2021

Whether the defendant in the suit for injunction can file a counterclaim seeking an injunction regarding different property?

Shri Pramod Dayal, learned counsel for the appellant, contended that in a suit for injunction, cause of action is based upon the threat of dispossession and interference with peaceful possession and enjoyment of the suit property by the respondent. The counter-claim is referable only in relation to money suits. In other words, in suit for injunction, the counter-claim is not maintainable. The trial Court, Therefore, ought to have excluded the counter- claim from the written statement and allowed the petition. He also contended that the direction issued by the High Court to identify the land where the counter-claim relates to and is referable to the property in dispute, is also not consistent. The counsel for the respondent Shri Harish Salve resisted the contentions and argued that the object of the Amendment in Rule 6A to G is to avoid multiplicity of proceedings and all claims whether based on same or different cause of action between parties to the suit should be tried and decided in the same proceedings as delineated in Rule 6A etc. The question, therefore is: whether in a suit for injunction, counter-claim for injunction in respect of the same or a different property is maintainable? Whether counter-claim can be made on different cause of action? it is true that preceding PC Amendment Act, 1976, Rule 6 of Order 8 limited the remedy to set off or counter-claim laid in a written statement only in a money suit. By CPC Amendment Act, 1976, Rules 6A to 6G were brought on statute. Rule 6a(1) provides that a defendant in a suit may, in addition to his right of pleading a set off under Rule 6, set up way of counter-claim against the claim of the plaintiff, any right or claim in respect of a cause of action accruing to the defendant against the plaintiff either before or after the filing of the suit but before the defendant has delivered his defence or before the time limited for delivering his defence has expired, whether such counter-claim is in the nature of a claim for damage or not. A limitation put in entertaining the counter-claim is as provided in the proviso to sub-rule (1), namely, the counter-claim shall not exceed the pecuniary limits of the jurisdiction of the Court. Sub-rule (2) amplified that such counter-claim shall have the same effect as a cross-suit so as to enable the Court to pronounce a final judgment in the same suit, both on the original claim and on the counter- claim. The plaintiff shall be given liberty to file a written statement to answer the counter-claim of the defendant within such period as may be fixed by the Court. The counter-claim is directed to be treated, by operation of sub-rule (4) thereof, as a plaint governed by the rules of the pleadings of the plaint. Even before 1976 Act was brought on statute, this Court in Laxmidas Dahyabhai Kabarwala v. Nanabhai Chunilal Kabarwala & Ors. [(1964) 2 SCR 567], had come to consider the case of suit and cross suit by way of counter-claim. Therein, suit was filed for enforcement of an agreement to the effect that partnership between the parties had been dissolved and the partners had arrived at a specific amount to be paid to the appellant in full satisfaction of the share of one of the partners in the partnership and thereby decree for settlement of accounts was sought. Therein the legal representatives of the deceased partner contended in the written statement, not only denying the settlement of accounts but also made a counter-claim in the written statement for the rendition of accounts against the appellant and paid the court fee as plaint. They also sought a prayer to treat the counter- claim as a cross suit. The trial Court dismissed the suit and the counter-claim. On appeal, the learned Single Judge accepted the counter-claim on a plaint in a cross suit and remitted the suit for trial in accordance with law. On appeal, per majority, this Court had accepted the respondents' plea in the written statement to be a counter- claim for settlement of their claim and defence in written statement as a cross suit. The counter-claim could be treated as a cross suit and it could be decided in the same suit without relegating the parties to a fresh suit. It is true that in money suits, decree must be conformable to Order 20, Rule 18, CPC but the object of the amendments introduced by Rules 6A to 6G are conferment of a statutory right to the defendant to set up a counter-claim independent of the claim on the basis of which the plaintiff laid the suit, on his own cause of action. In sub-rule (1) of Rule 6A, the language is so couched with words of wide width as to enable the parties to bring his own independent cause of action in respect of any claim that would be the subject matter of an independent suit. Thereby, it is no longer confined to money claim or to cause of action of the same nature as original action of the plaintiff. It need not relate to or be connected with the original cause of action or matter pleaded by the plaintiff. The words "any right or claim in respect of a cause of action accruing with the defendant" would show that the cause of action from which the counter-claim arises need not necessarily arise from or have any nexus with the cause of action of the plaintiff that occasioned to lay the suit. The only limitation is that the cause of action should arise before the time fixed for filing the written statement expires. The defendant may set up a cause of action which has accrued to him even after the institution of the suit. The counter-claim expressly is treated as a cross suit with all the indicia of pleadings as a plaint including the duty to aver his cause of action and also payment of the requisite court fee thereon. Instead of relegating the defendant to an independent suit, to avert multiplicity of the proceeding and needles protection, the legislature intended to try both the suit and the counter- claim in the same suit as suit and cross suit and have them disposed of in the same trial. In other words, a defendant can claim any right by way of a counter-claim in the same suit as suit and cross suit and have them disposed of in the same trial. In other words, a defendant can claim any right by way of a counter-claim in respect of any cause of action that has accrued to him even though it is independent of the cause of action averred by the plaintiff and have the same cause of action adjudicated without relegating the defendant to file a separate suit. Acceptance of the contention of the appellant tends to defeat the purpose of amendment. Opportunity also has been provided under Rule 6-C to seek deletion of the counter-claim. It is seen that the trial Court had not found it necessary to delete the counter- claim. The High Court directed to examine the identity of the property. Even otherwise, it being an independent cause of action, though the identity of the property may be different, there arises no illegality warranting dismissal of counter-claim. Nonetheless, in the same suit, both the claim in the suit and the counter-claim could be tried and decided and disposed of in the same suit.

 Supreme Court of India

Sh. Jag Mohan Chawla & Anr vs Dera Radha Swami Satsang & Ors on 7 May, 1996
Author: K. Ramaswamy
Bench: K. Ramaswamy, G.B. Pattanaik
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Whether the court can refuse to take counterclaim on record if it leads to the addition of parties?

 As regards addition of the parties i.e. the parties who are not arrayed as the parties to the suit by the plaintiffs, the Rule 15 clearly permits addition of such parties in the course of filing of the counter claim. {Para 5}

 6. For the reasons stated above, therefore, exclusion of the counter claim merely on the ground of addition of new parties or disclosure of a new cause of action is not permissible. In the circumstances, the impugned order apparently discloses failure of exercise of power under Rule 6-C of Order VIII by the trial Court, as also failure on the part of the trial Court to ascertain the occasion for exercise of such power vis-a-vis after taking into consideration the pleadings in the counter claim. The Court below without applying its mind to the provisions of law relating to the rights of the parties pertaining to the counter claim and ignoring the provisions of Order VIII, Rule 15 onwards has ordered the exclusion of the counter claim and, therefore, has clearly acted illegally rendering the impugned order to be bad in law.

 Bombay High Court

(Panaji Bench)

(Before Khandeparkar R.M.S., J.)

Oberlino Cirilo Sanches Vs Momenta Vaz 

2006 SCC OnLine Bom 94 : (2006) 5 Bom CR 383 : (2006) 3 AIR Kant R (NOC 316) 17 : (2006) 3 All LJ (NOC 590) 52 : 2006 AIHC (NOC 176) 59

Writ Petition No. 359 of 2005

Decided on January 27, 2006

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