Tuesday, 12 November 2019

When protest petition has to be in format of criminal complaint?

In the case of Abhinandan Jha MANU/SC/0054/1967 (supra) also what was observed was 'it is not very clear as to whether the Magistrate has chosen to treat the protest petition as complaint.' This observation would not mean that every protest petition must necessarily be treated as & complaint whether it satisfies the conditions of the complaint or not. A private complaint is to contain a complete list of witnesses to be examined. A further examination of complainant is made Under Section 200 Code of Criminal Procedure If the Magistrate did not treat the protest petition as a complaint, the protest petition not satisfying all the conditions of the complaint to his mind, it would not mean that the case has become a complaint case. In fact, in majority of cases when a final report is submitted, the Magistrate has to simply consider whether on the materials in the case diary no case is made out as to accept the final report or whether case diary discloses a prima facie case as to take cognizance. The protest petition in such situation simply serves the purpose of drawing Magistrate's attention to the materials in the case diary and invite a careful scrutiny and exercise of the mind by the Magistrate so it cannot be held that simply because there is a protest petition the case is to become a complaint case.

43. We may also notice that in Veerappa and Ors. v. Bhimareddappa MANU/KA/0336/2001 : 2002 CriLJ 2150 (Karnataka), the High Court of Karnataka observed as follows:


From the above, the position that emerges is this: Where initially the complainant has not filed any complaint before the Magistrate Under Section 200 of the Code of Criminal Procedure, but, has approached the police only and where the police after investigation have filed the 'B' report, if the complainant wants to protest, he is thereby inviting the Magistrate to take cognizance Under Section 190(1)(a) of the Code of Criminal Procedure on a complaint. If it were to be so, the protest petition that he files shall have to satisfy the requirements of a complaint as defined in Section 2(d) of the Code of Criminal Procedure, and that should contain facts that constitute offence, for which, the learned Magistrate is taking cognizance Under Section 190(1)(a) of the Code of Criminal Procedure Instead, if it is to be simply styled as a protest petition without containing all those necessary particulars that a normal complaint has to contain, then, it cannot be construed as a complaint for the purpose of proceeding Under Section 200 of the Code of Criminal Procedure.

44. Complaint is defined in Section 2(d) of the Code as follows:

(d) "complaint" means any allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some person, whether known or unknown, has committed an offence, but does not include a police report. Explanation.- A report made by a police officer in a case which discloses, after investigation, the commission of a non-cognizable offence shall be deemed to be a complaint; and the police officer by whom such report is made shall be deemed to be the complainant;

45. If a protest petition fulfills the requirements of a complaint, the Magistrate may treat the protest petition as a complaint and deal with the same as required Under Section 200 read with Section 202 of the Code. In this case, in fact, there is no list of witnesses as such in the protest petition. The prayer in the protest petition is to set aside the final report and to allow the application against the final report. While we are not suggesting that the form must entirely be decisive of the question whether it amounts to a complaint or liable to be treated as a complaint, we would think that essentially, the protest petition in this case, is summing up of the objections the second Respondent against the final report.

IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 1015 of 2019 
Decided On: 09.07.2019

 Vishnu Kumar Tiwari Vs.  State of Uttar Pradesh and Ors.

Hon'ble Judges/Coram:
Sanjay Kishan Kaul and K.M. Joseph, JJ.

Citation: (2019) 8 SCC 27
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Whether seizure panchnama can be proved by evidence of investigating officer even if panch witnesses turn hostile?

 As pointed out earlier, based on the disclosure statement of Accused No. 1, MO-1-dagger which was kept hidden in the haystack of fodder in the loft of the cattle shed behind the house of Accused No. 1 had been seized under Ex.-P9-Panchnama in the presence of panch witnesses PW-8-Chandrappa and PW-9-Mahadevappa Needgera. The said panch witnesses have not supported the prosecution case and turned hostile. MO-2-dagger and MO-3-handle of the axe were recovered from the scene of occurrence under Ex.-P7-spot panchnama. On behalf of the Accused, learned Senior Counsel contended that the evidence of PW-17-PSI as to the recovery of MO-1-dagger at the behest of Accused No. 1 is doubtful and when PWs 8 and 9 have turned hostile, no weight could be attached to the alleged recovery of MO-1-dagger. There is no merit in the contention that merely because the panch witnesses turned hostile, the recovery of the weapon would stand vitiated. It is fairly well settled that the evidence of the Investigating Officer can be relied upon to prove the recovery even when the panch witnesses turned hostile. In Rameshbhai Mohanbhai Koli v. State of Gujarat and Ors. MANU/SC/0871/2010 : (2011) 11 SCC 111, it was held as under:

33. In Modan Singh v. State of Rajasthan MANU/SC/0126/1978 : (1978) 4 SCC 435 it was observed (at SCC p. 438, para 9) that where the evidence of the investigating officer who recovered the material objects is convincing, the evidence as to recovery need not be rejected on the ground that seizure witnesses did not support the prosecution version. Similar view was expressed in Mohd. Aslam v. State of Maharashtra MANU/SC/2255/2000 : (2001) 9 SCC 362.

34. In Anter Singh v. State of Rajasthan MANU/SC/0096/2004 : (2004) 10 SCC 657, it was further held that: (SCC p. 661, para 10)

10. ... even if panch witnesses turn hostile, which happens very often in criminal cases, the evidence of the person who effected the recovery would not stand vitiated.

35. This Court has held in a large number of cases that merely because the panch witnesses have turned hostile is no ground to reject the evidence if the same is based on the testimony of the investigating officer alone. In the instant case, it is not the case of defence that the testimony of the investigating officer suffers from any infirmity or doubt. (Vide Modan Singh case, Krishna Gopal case and Anter Singh case.)

IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 1066 of 2009

Decided On: 08.08.2019

 Mallikarjun  Vs.  State of Karnataka

Hon'ble Judges/Coram:
R. Banumathi and A.S. Bopanna, JJ.

Citation: (2019) 8 SCC 359
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Whether readiness and willingness of plaintiff in suit for specific performance of contract can be inferred even if there is delay in filing of suit?

The High Court order is not correct in stating that readiness and willingness cannot be inferred because the letters dated 18.12.2002 and 19.12.2002 had not been sent to the Defendant. The High Court also erred in holding that despite having the necessary funds, the Plaintiff could not be said to be ready and willing. In the aforesaid circumstances, the High Court was also incorrect in putting a short delay in filing the Suit against the Plaintiff to state that he was not ready and willing. In India, it is well settled that the Rule of equity that exists in England, does not apply, and so long as a Suit for specific performance is filed within the period of limitation, delay cannot be put against the Plaintiff - See Mademsetty Satyanarayana v. G. Yelloji Rao and Ors. MANU/SC/0310/1964 : AIR 1965 Supreme Court 1405 (paragraph 7) which reads as under:

(7) Mr. Lakshmaiah cited a long catena of English decisions to define the scope of a Court's discretion. Before referring to them, it is necessary to know the fundamental difference between the two systems-English and Indian-qua the relief of specific performance. In England the relief of specific performance pertains to the domain of equity; in India, to that of statutory law. In England there is no period of limitation for instituting a suit for the said relief and, therefore, mere delay - the time lag depending upon circumstances - may itself be sufficient to refuse the relief; but, in India mere delay cannot be a ground for refusing the said relief, for the statute prescribes the period of limitation. If the suit is in time, delay is sanctioned by law; if it is beyond time, the suit will be dismissed as barred by time; in either case, no question of equity arises.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 2420 of 2018

Decided On: 10.07.2019

R. Lakshmikantham Vs.  Devaraji

Hon'ble Judges/Coram:
Rohinton Fali Nariman and Surya Kant, JJ.

Citation:(2019) 8 SCC 62
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Whether Section 23 of senior citizen Act is attracted If there was no Condition Of Providing Maintenance In Transfer Deed?

This Court in Radhamani and others v. State of
Kerala (2016 (1) KHC 9) held that there is no requirement
under law that there should be a written stipulation in the
deed to the effect that the transferee would maintain the
transferor. It is appropriate to refer the relevant
paragraphs in the above judgment which read thus :

“11. It is to be noted that the special scheme in
terms of Senior Citizens Act, 2007 could declare
certain transfer as void, taking note of the fact
that by taking advantage of the emotionally
dependent senior citizens, relatives grab the
property on the pretext of providing emotional
support. Therefore, legislature thought such
transaction could be declared as void as the
conduct leading to transaction was based on malice
or fraud. Therefore,condition referred in Section
23 has to be understood based on the conduct of
the transferee and not with reference to the
specific stipulation in the deed of transfer.”
Thus this Court is of the view that it is not necessary
that there should be a specific recital or stipulation as a
condition in the deed of transfer itself. This condition
mentioned in Section 23 is only referable as a conduct of
the transferee, prior to and after execution of the deed of
transfer.
14. In the light of the judgment in Radhamani's case,
the scope of enquiry in a matter related under Section 23,
must be related and confined to the circumstances under
which the document was executed. In the light of
Radhamani’s judgment, the Tribunal has to examine the
circumstances under which the deed was executed. It is also

necessary to find out whether senior citizen expected that
the transferee would provide amenities and physical needs to
the transferer at the time of transfer. There may not be
any written document in this regard. Normally this has to
be concluded from human conduct and nature of relationship
and circumstances in which such deed was executed. Strict
pleadings or evidence cannot be insisted in such
proceedings. It is to be noted that law only contemplates
breach on the part of the transferee in providing amenities
and physical needs to the transferor. It does not stipulate
that the condition of providing maintenance should be part
of such transfer. If love and affection was the
circumstances for executing such deed, any failure on the
part of the transferee to provide amenities and physical
needs to the transferor would attract the grounds for
revocation under Section 23. Therefore, any emotional
detachment or creation of an atmosphere as opposed to the
one demanded by a senior citizen would be sufficient to
attract Section 23.

IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
 MR. JUSTICE A.MUHAMED MUSTAQUE

WP(C).No.14802 OF 2019(A)

G.S.MANJU Vs  K.N.GOPI @ GOPINATHAN PILLAI

 MR. JUSTICE A.MUHAMED MUSTAQUE
Dated:10TH DAY OF OCTOBER 2019
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