Telangana HC: What is the appropriate method of proving medical certificate or post mortem report in Session trial if doctor who has issued that certificate or report is not available?

 The core contention of the learned counsel for the appellant/accused is that the doctor who examined the victim and allegedly issued Ex. P8-Medical report of the victim was not examined before the Court below to prove the contents of the same. Without formally proving Ex. P8-Medical report of the victim, which is tendered in evidence by PW. 11-investigation officer, the Court below erroneously took the same into consideration to come to a conclusion that PW. 2-victim was sexually assaulted by the appellant/accused. {Para 3}

4. We find force in the submission of the learned counsel for the appellant/accused. It is evident from the record that Ex. P8-Medical report of the victim was tendered in evidence by PW. 11-Investigation Officer in this case. It is settled law that mere marking of a document in evidence does not amount to its proof. Nor, mere marking of exhibit does not dispense with its proof, which is otherwise required to be done, in accordance with law. In medical jurisprudence, proof of writings and reports by any other person, than the real author of a document, should be by a 'competent person'. Such document should not be brought in evidence mechanically, only for the sake of empty formality, but, if taken in evidence, it should be meaningful and purposeful. In case of Injury Certificate/Wound Certificate/PME Certificate etc., the execution of such a document has to be proved by evidence of those technical/expert persons who can certify the contents of such document. It should be proved firstly by examining the doctor himself who issued the same; and if the said doctor is not found, the course available to the prosecution is to examine some other doctor from the same hospital, who knew the handwritings and signature of the doctor who issued the certificate in question. When the other doctor is examined who knew the handwritings and signature of the doctor who issued Ex. P8-medical report of the victim, he would have spoken about the contents of the medical report and the conclusions reached therein. In such an event, there would have been an opportunity to the appellant/accused to cross-examine the said doctor to answer the questions raised in relation to the commission of rape etc., and it would have been helpful to the Court to arrive at a just conclusion. Non-examination of the doctor who issued Ex. P.8-Medical report of the victim or any doctor working in the same hospital capable of identifying the handwritings and signature of the author of Ex. P8-medical report of the victim certainly causes prejudice to the appellant/accused. In the absence of such evidence, it is unsafe to act on Ex. P8-medical report of the victim.

5. Similar question came up for determination before the Hon'ble Jharkhand High Court in Sowam Kisku and others Vs. The State of Bihar MANU/JH/0542/2006 : 2006 Crl.L.J. 2526 wherein, the post mortem report of the deceased therein was sought to be proved by a Compounder attached to the hospital. Declining such practice, the Hon'ble Jharkhand High Court observed as follows:-

"8. We are unable to understand as to why the prosecution did not choose to examine the doctor. It is no doubt true that in spite of the steps taken, the prosecution could not procure the attendance of the doctor who conducted autopsy over the dead body, but that could not have precluded the prosecution from examining some other doctor from the same hospital who knew the handwriting and signature of the doctor who conducted autopsy. If any other doctor had been examined who knew the signature of the doctor who conducted the autopsy and if he had given evidence as to the nature of post mortem done and the injuries found by the doctor on the dead body, then the appellants could have had an opportunity of cross-examining the said doctor to say that the injuries suffered by the deceased are not fatal in nature and even if the deceased died on account of such injuries, the accused - appellants could have taken a defence to say that the said injuries are not sufficient in the ordinary course of nature to cause the death of the deceased or that the said injuries are only likely to cause the death. The prosecution by not examining the doctor denied the opportunity to the accused-appellants as they were prevented from cross-examining the doctor. Therefore, in absence of any evidence that Dugu Ram Kisku died due to homicidal violence, we cannot find the appellants guilty of murder."

IN THE HIGH COURT OF STATE OF TELANGANA

Criminal Appeal No. 244 of 2022 and IA No. 2 of 2022

Decided On: 22.08.2022

Manoj Kumar Mahanand Vs. State of Telangana

Hon'ble Judges/Coram:

Dr. Shameem Akther and E.V. Venugopal, JJ.

Author: Dr. Shameem Akther, J.

Citation: MANU/TL/2666/2022.

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Telangana HC: Depriving Spouse Of Being On Facebook, Instagram; Damaging Partner's Reputation/ Social Standing May Amount To Cruelty

In essence, whether the conduct inflicted by one party on the other clears the threshold of cruelty under Section 13(1)(i-a) of the Act is wholly fact-dependent. In fact, there is no threshold test at all. The concept of cruelty is social milieu-dependent where the upbringing, level of education, sensitivity, financial position, social status, religious beliefs and cultural backgrounds of the parties would set the standard of whether the conduct complained of would be unmitigated cruel behaviour. The degree of tolerance to the conduct complained of would also depend on the outlook, experience and exposure of the complainant as well as the perpetrator. Any act of damage to reputation, social standing or work prospects by one spouse to the other would fall within the term “cruelty”. It may not be too far-fetched to say-hesitantly-that depriving a spouse from being on Facebook and Instagram may also amount to cruelty!

{Para 11}

12. The absence of a specific definition of ‘cruelty’ encourages a revisit of the requirement to prove cruel treatment as a ground for divorce under Section 13(1)(i-a) of the Act. The concept of marital duties and obligations has changed at every level with changes in social structures. Family set-ups have been transformed with financial independence and greater equality in relationships. A marriage is more of a voluntary bond these days and less of a social compulsion. The law must move with the times.

TELANGANA HIGH COURT

CORAM:  SMT. JUSTICE MOUSHUMI BHATTACHARYA AND

 SMT JUSTICE M.G.PRIYADARSINI

C.M.A. No.68 OF 2022

JUDGMENT: (Per Hon’ble. Justice Moushumi Bhattacharya)

Dated:21.06.2024.

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Telangana HC: Procedure to be followed by the court when accused files copy of bail order downloaded from E- court Website

 Hence, this Court feels that an alternative mechanism shall be evolved to address the plight of these under-trial prisoners/accused.

(a) Parties/Advocates shall download the order copy from the High Court's Website along with case details which are available in the case status information.

(b) While filing the memo on behalf of accused for furnishing sureties, the Advocate shall state in the Memo that he/she has downloaded the order copy from the High Court's Website. The Administrative Officer/Chief Ministerial Officer of the Court concerned shall verify the order from the High Court's Website and make an endorsement to that effect and then shall place the same before the Court.

(c) The Public Prosecutor shall also obtain necessary instructions in this regard and assist the Court.

(d) The Presiding Officer, on the same day, shall dispose of the same and dispatch the release order to the jail authorities concerned forthwith through e-mail or any other electronic mode.

(e) In cases of anticipatory bail, the burden to verify the authenticity of the copy is on the Station House Officer concerned and if necessary, he should obtain necessary instructions from the Public Prosecutor's Office and complete the process on the same day expeditiously as per law.

(f) The jail authorities on receipt of the release order shall release the accused forthwith. {Para 14}

IN THE HIGH COURT OF STATE OF TELANGANA

Criminal Petition No. 8108 of 2021

Decided On: 15.11.2021

V. Bharath Kumar Vs. The State of Telangana

Hon'ble Judges/Coram:

Lalitha Kanneganti, J.

Citation: MANU/TL/0912/2021.

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Whether the court can quash prosecution against accused under Food safety Act if there no FSL report or expert report?

As seen from the material placed on record, there is no FSL or expert report to the effect that the substance seized is dangerous/hazardous to public health. Hence, it is pertinent to

state that continuation of proceedings in the subject C.C is nothing but abuse of process of law. Therefore, the proceedings against the petitioner/A2 in the subject case are liable to be quashed.

TELANGANA HIGH COURT

Vinod kumar Vyas Vs State of telangana

 THE HON'BLE Dr. JUSTICE SHAMEEM AKTHER

CRIMINAL PETITION No.8237 OF 2021

Date: 12.11.2021

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Whether a document can be registered after four month if it was presented within that time?

From the above, it is clear that no document other than a will shall  be accepted for registration unless presented to the Registering Authority within four months from the date of its execution. In the case on hand, it is obvious that the subject lease of agreement was executed on 20.11.2019 and appears to be presented before the Registering Authority and on acceptance and stated to have been orally given various dates to attend for registration drawn the Challan bearing No.5149659836504 on

12.03.2020, which is within the prescribed period of four months from the date of its execution and the actual date of four months would be completed on 20.03.2020. Though the statute makes it imperative to present an instrument for registration within four months from the date of its execution, no time is fixed within which a deed presented and accepted for registration must be registered; and, indeed, from the nature of the requirements of the Act, the period within which the registration must be completed could not have been fixed. Earlier, this

Court, in W.P. No.313 of 2020 on 01.10.2020, dealt with the similar

aspect and held at para 10 as under:

“….Since there is no period of limitation to register the

document, once it was presented before the authority

concerned within four (4) months after its execution and

when it was accepted for registration, registering the

document at a later stage i.e, on 31.08.2019 (after lapse of

22 years), cannot be faulted.” {Para 10}

 TELANGANA HIGH COURT

 WRIT PETITION No.15986 OF 2020

 Tata Consumer Products Limited and another Vs The State of Telangana

Coram: SRI JUSTICE N.V. SHRAVAN KUMAR

Dated 10.06.2022

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Whether police can detain sexual offender in preventive detention?

 In the instant case, a bare perusal of the bail order of the

detenu, dated 22.07.2020, reveals that the prosecuting authority

has not brought the aforementioned proviso to the notice of the

learned Sessions Judge who granted bail to the detenu. For the

inaction of the Police, the detaining authority cannot be

permitted to invoke the draconian preventive detention laws, in

order to breach the liberty of an individual. The detenu is being

prosecuted for committing a heinous offence of penetrative

aggravated sexual assault on a girl aged 13 years. He was

granted bail by the Court of Session as indicated above on

conditions. If the state of aggrieved by the grant of bail to the

detenu, nothing prevented the State to move higher Court to

seek cancellation of bail. The State did not choose to resort to

such cancellation of bail, instead passed the impugned detention

order. All the cases under POCSO Act are being put on fast

track. It is brought to the notice of this Court that no chargesheet has been filed. The State could have expedited the

investigation and filed charge-sheet. The minimum sentence of

imprisonment prescribed for the alleged offence is ten years. As

held in Vijay Narain Singh’s case (3 supra), a single act or

omission cannot be characterized as a habitual act because, the

idea of ‘habit’ involves an element of persistence and a tendency

to commit or repeat similar offences, which is patently not

present in the instant case. The detenu is second year

intermediate student. In our opinion, the bald statement made

in the grounds of detention that considering the detenu’s

involvement in heinous activities and his release from prison on

bail, there is imminent possibility of his indulging in similar

shameful and inhuman acts of sexual assault on minor girls and

women exploiting their innocence in a deceptive manner which

are detrimental to public order, would not justify the impugned

detention order.

 However, the failure of the

detaining authority to consider the possibility of launching

a criminal prosecution may, in the circumstances of a

case, lead to the conclusion that the detaining authority

had not applied its mind to the vital question whether it

was necessary to make an order of preventive detention.

Where an express allegation is made that the order of

detention was issued in a mechanical fashion without

keeping present to its mind the question whether it was

necessary to make such an order when an ordinary

criminal prosecution could well serve the purpose, the

detaining authority must satisfy the court that the

question too was borne in mind before the order of

detention was made. If the detaining authority fails to

satisfy the court that the detaining authority so borne the

question in mind the court would be justified in drawing

the inference that there was no application of the mind of

the detaining authority to the vital question whether it

was necessary to preventively detain the detenu.”

15. In the present case, further, the detaining authority failed

to demonstrate the necessity to pass the impugned detention

order invoking the draconian preventive detention laws, when

recourse to normal criminal justice system is available for

curbing the alleged illegal activities of the detenu. Even

otherwise, there is nothing on record to show that there is

'imminent possibility’ of the detenu indulging in similar offence/s

which are detrimental to public order. It is true that the offence

alleged against the detenu is heinous in nature. But, it is also

equally true that the detenu has no criminal antecedents or

criminal history, which could have formed the basis for recording 'subjective satisfaction' while passing the order of detention. In

the instant case, there is only a solitary case in Crime No.452 of

2020 of Shadnagar Police Station registered for the offences

punishable under Sections 363, 376(2)(n) of IPC and Sections 5

& 6 of POCSO Act for which the detenu was arrested and

remanded to judicial custody and later released on conditional

bail. Lastly, it is also relevant to state that the detenu developed

acquaintance/friendship with the victim girl who is 13 years old

as she was studying in the school, where the sister of the detenu

was also studying. Due to the acquaintance/friendship, the

detenu took the victim girl to a secluded place where he has

committed sexual intercourse and thus fulfilled his sexual desire

and on the next day morning, i.e., on 27.06.2020, he let off the

victim girl. Therefore, it cannot be held that the detenu would

indulge in similar prejudicial activities in future. Under these

circumstances, the detaining authority is not justified in passing

the order of detention, which tantamounts to colourable exercise

of power.

16. Grave as the offence may be, it relates to penetrative

aggravated sexual assault on a minor girl. So, no inference of

disturbance of public order can be drawn. This case can be tried

under the normal criminal law and/or special legislation. And, if

convicted, can certainly be punished by the Court of law. Thus,

the case does not fall within the ambit of the words "public

order". Instead, it falls within the scope of the words "law and

order". Hence, there was no need for the detaining authority to

pass the detention order.

TELANGANA HIGH COURT

 THE HON’BLE SRI JUSTICE A.RAJASHEKER REDDY

AND

 THE HON’BLE Dr. JUSTICE SHAMEEM AKTHER

 Writ Petition No.18013 of 2020

 Date: 23.02.2021.

Charakonda Chinna Chennaiah Vs. The State of Telangana a

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Whether commercial court can refuse to entertain suit if the plaintiff has not exhausted the remedy of pre-institution mediation?

The learned Judge has directed to return the plaint on the ground that the petitioner should first exhaust the remedy of pre-institution mediation under Section 12(A)(1) of the Act. To see whether the invocation of Section 12(A)(1) of the Act in this case was right, it would be necessary to extract the provisions of Section 12(A)(1) of the Act. It reads as follows:

"12A. Pre-Institution Mediation and Settlement.- (1) A suit, which does not contemplate any urgent interim relief under this Act, shall not be instituted unless the plaintiff exhausts the remedy of pre-institution mediation in accordance with such manner and procedure as may be prescribed by rules made by the Central Government."

9. It can be seen from what is extracted above that it is only in cases where the suit does not contemplate any urgent interim relief that there is a bar for institution of the suit without the plaintiff exhausting the remedy of pre-institution mediation. The expression used in Section 12(A)(1) of the Act is "A suit which does not contemplate any urgent relief".

10. Unfortunately, the learned Judge has read the above expression to mean as if only in cases where the plaintiff is entitled to urgent interim relief, the provision will not apply. The entitlement of a party to an urgent relief is a matter that would come up for consideration if the suit is numbered and several aspects taken into account. What is required to satisfy Section 12(A)(1) of the Act is the contemplation of an urgent relief.

11. In any case, the very nature of a suit for injunction against infringement of a copyright, is such that urgent reliefs will invariably be contemplated. Therefore, it is completely wrong on the part of the Commercial Court to say that there is no urgency in the matter.

12. In view of the above, the impugned endorsement made on the plaint, filed by the petitioner, is wholly illegal and liable to be set aside. Accordingly, the revision is allowed, the impugned endorsement is set aside and the Commercial Court is directed to number the suit, if other procedural aspects are in order and proceed with the matter in accordance with law.

Telangana High Court

M/S.M K Food Products vs M/S.S H Food Products on 21 February, 2019

Bench: V Ramasubramanian, Shameem Akther

     CIVIL REVISION PETITION No.3690 of 2018


ORDER: (Per Hon'ble Sri Justice V. Ramasubramanian)

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Whether court should allow amendment of pleading if claim for damages has become barred by limitation?

Reliance is placed by the learned counsel for the respondent/defendant on the decision of the Supreme Court in Pankaja MANU/SC/0590/2004 : (2004) 6 SCC 415 (supra) in support of his contention that there is no absolute bar that in every case where a relief is barred by limitation, an amendment should not be allowed. But it is of no assistance to the respondent/defendant. Even in Pankaja MANU/SC/0590/2004 : (2004) 6 SCC 415 (supra), the Supreme Court gave leverage to the Courts to exercise the discretion conferred upon them on a judicious evaluation of the facts and circumstances in which the amendment was sought. Where the delay had extinguished the right to make a claim, the same could not have been allowed. In paragraph No. 14 of its decision in Pankaja MANU/SC/0590/2004 : (2004) 6 SCC 415 (supra) the Supreme Court made it clear that two tests can be applied, viz., (i) whether the grant of amendment would sub-serve the ultimate cause of justice; and (ii) whether the amendment would avoid further litigation. If these two tests are applied, it will be clear that the case on hand would not pass these tests.

IN THE HIGH COURT OF STATE OF TELANGANA

C.R.P. No. 6745 of 2018

Decided On: 10.04.2019

M.V. Ramana Rao  Vs.  N. Subash

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Whether the defendant, who admits the validity of the claim of the plaintiff, can plead a set-off?

WHAT IS SET-OFF AND ITS ORIGIN

21. A set-off is defined in the Law Lexicon by P. Ramanatha Aiyar, to mean "a mode of defence, whereby the defendant acknowledges the justice of the plaintiffs demand on the one hand but on the other, sets up a demand of his own to counterbalance it either in whole or in part". The Courts have repeatedly dealt with the distinction between (i) a set-off (ii) abatement (iii) a counter claim and (iv) adjustment. A set-off, strictly speaking, is not a defence to the action in which it may be filed. The essential nature of a set-off is that it does not defeat a plaintiffs claim by a valid defence, but seeks to project the satisfaction of the plaintiffs claim. Therefore, it is only a defendant, who admits the validity of the claim of the plaintiff, who can plead a set-off. It may also be put differently in that a person pleading set-off indirectly admits the validity of the plaintiffs claim, but contends that the claim is satisfied.

22. A look at the origin of the right to set-off would show that it was the creature of two statutes of the early Eighteenth Century designed to prevent the imprisonment of the debtor of a person not truly indebted because there was a mutual debt. 

IN THE HIGH COURT OF STATE OF TELANGANA

C.R.P. No. 6745 of 2018

Decided On: 10.04.2019

M.V. Ramana Rao  Vs.  N. Subash

Hon'ble Judges/Coram:

V. Ramasubramanian and Dr. Shameem Akther, JJ.

Citation: AIR 2020 Telangana 27

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