Monday, 30 November 2020

Whether the court can convict accused of the offence of dacoity if the prosecution fails to prove the presence of five or more person at the time of the crime of dacoity?


 
 The above judgment has been followed by Supreme Court in subsequent judgment in Manmeet Singh alias Goldie (supra) and relevant paras 32, 33 and 34 of the judgment are as under:

32. With reference to the offence of dacoity under section 391, IPC in particular and the import of section 149, IPC, this Court in Raj Kumar v. State of Uttaranchal (2008) 11 SCC 709 had propounded that in absence of a finding about the involvement of five or more persons, an accused cannot be convicted for such an offence. Their Lordships, however, clarified that in a given case it could happen that there might be five or more persons and the factum of their presence either is not disputed or is clearly established, but the Court may not be able to record a finding as to their identity resulting in their acquittal as a result thereof. It was held that in such a case, conviction of less than five persons or even one can stand, but in the absence of a finding about the presence or participation of five or more persons, less than five persons cannot be convicted for an offence of dacoity.

33. The above pronouncements do acknowledge the extension of the concept of collective culpability enshrined in Section 149 IPC in Section 396 IPC contemplating murder with dacoity. An assembly of five or more persons participating in the offence is thus the sine qua non for an offence under Section 396 IPC permitting conviction of any one or more members thereof even if others are acquitted for lack of their identity. In absence of such an assembly of five or more persons imbued with the common object of committing dacoity with murder, any member thereof cannot be convicted for the said offence irrespective of his/her individual act of murder unless independently and categorically charged for that offence.


13. From the above mentioned judgments, it is clear that in case there is a conviction of less than five persons under Sections 395/397 IPC, Trial Court must arrive to a finding that there was involvement of five or more persons. In absence of such finding no conviction could be made out under aforesaid Sections. As rightly pointed out by the counsel for appellants that Trial Court has not recorded any such finding in this regard and it simply mentioned in the judgment that “three accused, facing trial before me, were also alongwith dacoits who committed dacoity in the house of Raj Kumar” and “prosecution has successfully established that the three accused committed dacoity in the house of Raj Kumar in the night of occurrence”. In my opinion, the above mentioned finding is not sufficient to conclude that five or more persons were involved in the offence and not sufficient to convict appellants, who are three in numbers under the offence of dacoity.

14. In view of above, prosecution has completely failed, in the present case, either to prove the participation of five or more persons in commission of offence or establish their identity. Therefore, in my considered view the conviction and sentence of appellants is being repugnant to letter and spirit of Sections 391 and 396 IPC, the same cannot be sustained.


In the High Court of Allahabad

(Before Saurabh Shyam Shamshery, J.)

Balbir Vs  State of U.P.

Criminal Appeal No. - 648 of 1983

Decided on July 9, 2020

Citation: 2020 SCC OnLine All 845 : (2020) 112 ACC 971 : (2020) 5 All LJ 174

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Whether application U/S 34 of Arbitration Act is maintainable to challenge foreign arbitration award?




The Appellant, which was granted special leave, challenges a judgment of the Bombay High Court1. It urges that the impugned judgment is erroneous because it concludes that proceedings Under Section 34 of the Arbitration and Conciliation Act, 1996 (hereafter "the Act") can be maintained to challenge a foreign award, defined as one, under that enactment.

Appearing for the Appellant, NV Engineering, Mr. Joydeep Gupta, learned Senior Counsel, urged that the impugned judgment is unsupportable in law because a foreign award cannot be challenged Under Section 34 of the Act. It was urged that the three-judge decision in Bhatia International8 and the subsequent holding in Venture Global9 were both held to be incorrect in the larger, five judges ruling in Bharat Aluminium Co. v. Kaiser Aluminium Technical Services Inc MANU/SC/0722/2012 : 2012 (9) SCC 552 ("BALCO" hereafter). Learned Counsel submitted that even the caveat in BALCO that a class of foreign awards made prior to its pronouncement cannot aid Jindal's essential argument with respect to maintainability of a challenge Under Section 34 and that such challenge under Part I is untenable.

10. Mr. Gupta relied on BALCO extensively in support of his argument that the foreign awards in this case, having been rendered outside India under the aegis of the ICC cannot be challenged merely because a condition in the underlying contract says that the law governing the agreement, would be Indian law.

135. Thus, the intention of the legislature is clear that the court may refuse to enforce the foreign award on satisfactory proof of any of the grounds mentioned in Section 48(1), by the party resisting the enforcement of the award. The provision sets out the defences open to the party to resist enforcement of a foreign award. The words "set aside or suspended", in Clause (e) of Section 48(1) cannot be interpreted to mean that, by necessary implication, the foreign award sought to be enforced in India can also be challenged on merits in Indian courts. The provision merely recognises that courts of the two nations which are competent to annul or suspend an award. It does not ipso facto confer jurisdiction on such courts for annulment of an award made outside the country. Such jurisdiction has to be specifically provided in the relevant national legislation of the country in which the court concerned is located. So far as India is concerned, the Arbitration Act, 1996 does not confer any such jurisdiction on the Indian courts to annul an international commercial award made outside India. Such provision exists in Section 34, which is placed in Part I. Therefore, the applicability of that provision is limited to the awards made in India. If the arguments of the learned Counsel for the Appellants are accepted, it would entail incorporating the provision contained in Section 34 of the Arbitration Act, 1996, which is placed in Part I of the Arbitration Act, 1996 into Part II of the said Act. This is not permissible as the intention of Parliament was clearly to confine the powers of the Indian courts to set aside an award relating to international commercial arbitrations, which take place in India.


 IN THE SUPREME COURT OF INDIA

Civil Appeal No. 8607 of 2010

Decided On: 26.11.2020


 Noy Vallesina Engineering Spa Vs.  Jindal Drugs Limited and Ors.


Hon'ble Judges/Coram:

Indira Banerjee and S. Ravindra Bhat, JJ.

Author: S. Ravindra Bhat, J.

Citation: MANU/SC/0899/2020

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Whether the court should order the transfer of investigation on the ground that the police officer is a Facebook friend of the complainant?


As regards the association, alliance and close family relations

of the complainant in FIR No.76 dated 1903.2018 with a senior police

officer who was the then Special Director of CBI, it appears to the Court

that all the allegations are mere assumption and not substantiated by any

material on record. The petitioner has drawn attention of the Court towards

two e-mails addressed to Ram Gopal Garg, the then ACB, CBI, Chandigarh

(rggarg@yahoo.com) and the copy of the same was addressed to head of

CBI at Chandigarh on official email address – hobacchg@cbi.gov.in as well

as to Tajinder Ludhra, the then IGP and Rakesh Asthana on email address

spl.dir@gov.in. These documents by any stretch of imagination, cannot be

said to be any connecting evidence substantiating the close family relations

or influence of the Special Director, CBI in the investigation conducted by

the police. The petitioner has also failed to mention the role of any police

official in hampering with the fair investigation conducted in the aforesaid

FIR or any role of any police official in lodging FIR No.75 dated


21.09.2020 under Sections 419, 420 IPC at Police Station, Sector 19,

Chandigarh.

As regards, the alleged proximity of a senior police official and

his wife with the complainant in FIR No.76 dated 19.03.2018, the same

have not been substantiated by way of any cogent proof. Even otherwise, if

a person appears in the friend list of a Facebook page of any public servant,

it cannot be assumed that an official shall favour such a person in an illegal

manner and maneuver investigation of a crime. It is indeed intriguing as to

how the petitioner gained access to the Facebook account of this police

official. Facebook accounts are privy to the account holder and the

petitioner must be put to strict proof as to how has he been able to access

the facebook account of a police official and where from he obtained the

facebook conversations Annexures P-1 and P-2.

The high ranking police officer who has never remained posted

in Chandigarh and having graduated with the husband of complainant from

same university/college in the year 1982 would not necessarily lead to any

inference that he was instrumental in getting the investigation conducted in

a biased manner. It appears to the Court that name of this officer has been

unnecessarily dragged into the litigation for ulterior motive with a view to

put pressure upon the Chandigarh police to act according to petitioner’s

whims.


The so-called officer, Mr. Asthana, never remained posted in

Chandigarh and the other high rank officer Tajinder Luthra was transferred

way back in 2018 from Chandigarh police and particularly in case of Mr.

Asthana, it can be said beyond doubt that he is not even remotely connected

with the affairs of Chandigarh Police.


The power of transferring an investigation must be in rare and

exceptional cases where the court finds it necessary in order to do justice

between the parties and to instil confidence in the public mind, or where

investigation by the State police lacks credibility and it is necessary for

having a fair, honest and complete investigation, and particularly, when it is

imperative to retain public confidence in the impartial working of the Stae

agencies. Under no circumstances, should the court make any expression of

its opinion on merit relating to any accusation against any individual. The

aforesaid view has been taken from judgment dated 21.08, 2013 rendered by

the Apex Court in Criminal Appeal No.1167 of 2013 titled ‘Prof. K.V.

Rajendran vs. Superintendent of Police, CBCID South Zone, Chennai

& others’.

It is settled law that an accused does not have the right to

determine the prosecuting agency of its own choice. The Hon’ble Supreme

Court in the case of Romila Thapar v. Union of India, (2018) 10 SCC 753,

held that the accused “does not have a say in the matter of appointment of

investigating agency”. The Hon’ble Supreme Court further held that “the

consistent view of this Court is that the accused cannot ask for changing the

investigating agency or to do investigation in a particular manner

including for court- monitored investigation.”

 IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH

Decided on: 26.11.2020

Civil Writ Petition No.16659 of 2020

Dr. Mohit Dhawan Vs  U.T. Chandigarh & others


CORAM: HON'BLE MR. JUSTICE SANT PARKASH

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Sunday, 29 November 2020

Leading Supreme court Judgment on the obligation of disciplinary authority to furnish enquiry report to delinquent in the departmental enquiry

 This group of matters is at the instance of various parties, viz., Union of India, Public Sector Corporations, Public Sector banks, State Governments and two private parties. By an order dated 5th August, 1991 in Managing Director, Electronic Corporation of India v. B.Karunakar MANU/SC/0474/1992 : (1992)1SCC709 , a three Judge Bench of this Court referred that matter to the Chief Justice for being placed before a Larger Bench, for the Bench found a conflict in the two decisions of this Court, viz., Kailash Chander Asthana etc. etc. v. State of U.P. and Ors. etc. etc. MANU/SC/0221/1988 : (1988)IILLJ219SC , and Union of India and Ors. etc. etc. v. Mohd. Ramzan Khan MANU/SC/0124/1991 : (1991)ILLJ29SC both delivered by the Benches of three learned Judges. Civil Appeal No. 3056 of 1991 arising out of SLP (Civil) No. 12103 of 1991 along with the other matters in which the same question of law is in issue, has therefore, been referred to this Bench.


2. The basis question of law which arises in these matters is whether the report of the Inquiry Officer/authority who/which is appointed by the disciplinary authority to hold an inquiry into the charges against the delinquent employee, is required to be furnished to the employee to enable him to make proper representation to the disciplinary authority before such authority arrives at its own finding with regard to the guilt or otherwise of the employee and the punishment, If any, to be awarded to him. This question in turn gives rise to the following incidental questions:


(i) Whether the report should be furnished to the employee even when the statutory rules laying down the procedure for holding the disciplinary inquiry are silent on the subject or are against it?


(ii) Whether the report of the Inquiry Officer is required to be furnished to the delinquent employee even when the punishment imposed is other than the major punishment of dismissal, removal or reduction in rank?


(iii) Whether the obligation to furnish the report is only when the employee asks for the same or whether it exists even otherwise?


(iv) Whether the law laid down in Mohd. Ramzan Khan's case (Supra) will apply to all establishments - Government and non-Government, public and private sector undertakings,


(v) What is the effect of the non-furnishing of the report on the order of punishment and what relief should be granted to the employee in such cases?


(vi) From what date the law requiring furnishing of the report, should come into operation?


(vii) Since the decision in Ramzan Khan's case (supra) has made the law laid down there prospective in operation, i.e., applicable to the orders of punishment passed after 20th November, 1990 on which day the said decision was delivered, this question in turn also raises another question, viz., what was the law prevailing prior to 20th November, 1990?

Hence the incidental question raised above may be answered as follows:


(i) Since the denial of the report of the Inquiry Officer is a denial of reasonable opportunity and a breach of the principles of natural justice, it follows that the statutory rules if any, which deny the report to the employee are against the principles of natural justice and, therefore, invalid. The delinquent employee will, therefore be entitled to a copy of the report even if the statutory rules do not permit the furnishing of the report or are silent on the subject.


(ii) The relevant portion of Article 311(2) of the Constitution is a follows:


(2) No such person as aforesaid shall be dismissed or removed or reduced in rank except after an enquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges.


Thus the Article makes it obligatory to hold an inquiry before the employee is dismissed or removed or reduced in rank. The Article, however, cannot be construed to mean that it prevents or prohibits the inquiry when punishment other than that of dismissal, removal or reduction in rank is awarded. The procedure to be followed in awarding other punishments is laid down in the service rules governing the employee. What is further, Article 311(2) applies only to members of the civil services of the Union or an all-India service or a civil service of a State or to the holders of the civil posts under the Union or a State. In the matter of all punishments both Government servants and others are governed by their service rules. Whenever, therefore, the service rules contemplate an inquiry before a punishment is awarded, and when the Inquiry Officer is not the disciplinary authority the delinquent employee will have the right to receive the Inquiry Officer's report notwithstanding the nature of the punishment.


(iii) Since it is the right of the employee to have the report to defend himself effectively, and he would not known in advance whether the report is in his favour or against him, it will not be proper to construe his failure to ask for the report, as the waiver of his right. Whether, therefore, the employee asks for the report or not, the report has to be furnished to him.


(iv) In the view that we have taken, viz., that the right to make representation to the disciplinary authority against the findings recorded in the inquiry report is an integral part of the opportunity of defence against the charges and is a breach of principles of natural justice to deny the said right, it is only appropriate that the law laid down in Mohd. Ramzan Khan's case (supra) should apply to employees in all establishments whether Government or non-Government, public or private. This will be the case whether there are rules governing the disciplinary proceeding or not and whether they expressly prohibit the furnishing of the copy of the report or are silent on the subject. Whether the nature of punishment, further, whenever the rules require an inquiry to be held, for inflicting the punishment in question, the delinquent employee should have the benefit of the report of the Inquiry Officer before the disciplinary authority records its findings on the charges levelled against him. Hence question (iv) is answered accordingly.


(v) The next question to be answered is what is the effect on the order of punishment when the report of the Inquiry Officer is not furnished to the employee and what relief should be granted to him in such cases. The answer to this question has to be relative to the punishment awarded. When the employee is dismissed or removed from service and the inquiry is set aside because the report is not furnished to him, in some cases the non-furnishing of the report may have prejudiced him gravely while in other cases it may have made no difference to the ultimate punishment awarded to him. Since to direct reinstatement of the employee with back-wages in all cases is to reduce the rules of justice is a mechanical ritual the theory of reasonable opportunity and the principles of natural justice have been evolved to uphold the rule of law and to assist the individual to vindicate his just rights. They are not incantations to be invoked nor rites to be performed on all and sundry occasions. Whether in fact, prejudice has been caused to the employee or not on account of the denial to him of the report, has to be considered on the facts and circumstances of each case. Where, therefore, even after the furnishing of the report, no different consequence would have followed, it would be perversion of justice to permit the employee to resume duty and to get all the consequential benefits. It amounts to rewarding the dishonest and the guilty and thus to stretching the concept of justice to illogical and exasperating limits. It amounts to an "unnatural expansion of natural justice" which in itself is antithetical to justice.


Hence, in all cases where the Inquiry Officer's report is not furnished to the delinquent employee in the disciplinary proceedings, the Courts and Tribunals should cause the copy of the report to be furnished to the aggrieved employee if he has not already secured it before coming to the Court/Tribunal, and give the employee an opportunity to show how his or her case was prejudiced because of the non-supply of the report. If after hearing the parties, The Court/Tribunal comes to the conclusion that the non-supply of the report would have made no difference to the ultimate findings and the punishment given, the Court/Tribunal should not interfere with the order of punishment the Courts/Tribunal should not mechanically set aside the order of punishment on the ground that the report was not furnished as is regrettably being done at present. The courts should avoid resorting to short-cuts. Since it is the Court/Tribunals which will apply their judicial mind to the question and give their reasons for setting aside or not setting aside the order of punishment, (and not any internal appellate of revisional authority), there would be neither a breach of the principles of natural justice nor a denial of the reasonable opportunity.


It is only if the Court/Tribunal finds that the furnishing of the report would have made a difference to the result in the case that it should set aside the order of punishment.

Where after following the above procedure, the Court/Tribunal sets aside the order of punishment, the proper relief that should be granted is to direct reinstatement of the employee with liberty to the authority/management to proceed with the inquiry, by placing the employee under suspension and continuing the inquiry from the stage of furnishing him with the report.

The question whether the employee would be entitled to the back-wages and other benefits from the date of his dismissal to the date of his reinstatement if ultimately ordered, should invariably be left to be decided by the authority concerned according to law, after the culmination of the proceedings and depending on the final outcome. If the employee succeeds in the fresh inquiry and is directed to be reinstated, the authority should be at liberty to decide according to law how it will treat the period from the date of dismissal till the reinstatement and to what benefits, if any and the extent of the benefits, he will be entitled. The reinstatement made as a result of the setting aside of the inquiry for failure to furnish the report, should be treated as a reinstatement for the purpose of holding the fresh inquiry from the stage of furnishing the report and no more, where such fresh inquiry is held. That will also be the correct position in law.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 3056 of 1991

Decided On: 01.10.1993

Managing Director, ECIL, Hyderabad  Vs.  Karunakar and Ors.

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