Supreme Court: Weapon of offence must be shown to medical witness and his opinion must be obtained whether injuries were caused to the victim by that weapon

 The same has been again asserted by this Court in Ishwar Singh v. State of U.P.   MANU/SC/0120/1976 : (1976) 4 SCC 355 by observing as under:

It is the duty of the prosecution, and no less of the Court, to see that the alleged weapons of the offence, if available, is shown to the medical witness and is opinion invited as to whether all or any of the injuries on the victim could be caused with that weapon. Failure to do so sometimes, cause aberration of the course of justice. On the basis of the evidence on record it is difficult to say whether the injury to the deceased was caused by the knife with a broken tip which was ceased. These variations relate to vital parts of the prosecution case, and cannot be dismissed as minor discrepancies. {Para 31}

 IN THE SUPREME COURT OF INDIA

Criminal Appeal Nos. 335 and 336 of 2015 

Decided On: 12.10.2020

Amar Singh and Ors. Vs. The State (NCT of Delhi)

Hon'ble Judges/Coram:

Sanjay Kishan Kaul, Aniruddha Bose and Krishna Murari, JJ.

Author: Krishna Murari, J.

Citation: (2021) 3 Supreme Court Cases (Cri) 784, AIR 2020 SUPREME COURT 4894, AIRONLINE 2020 SC 769,MANU/SC/0752/2020

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Gujarat HC: What is duty of the court when it comes to its knowledge that future maintenance right was relinquished on payment of illusory amount of maintenance?

 The principle underlying the lump sum payment as laid down by the Supreme Court in Bai Tahira's case (supra) can be equally applied to the facts and circumstances of this case. The basic principle is that the object of the lump sum payment to be made is to obviate the destitution of the divorcee and to provide her with the wherewithal to maintain herself. As laid down by the Supreme Court, there must be a rational relation between the sum so paid and its potential as provision for maintenance. In the instant case the petitioner-wife was forced to go to Court for claiming her maintenance. Under the circumstances, then prevailing she gave up her right to claim future maintenance "voluntarily" for lump sum amount and executed the deed of divorce. Now, when she has preferred an application for maintenance, it cannot be said that the application at the instance of the petitioner-wife claiming maintenance is not maintainable because she had surrendered her future right of maintenance. Whenever in application for maintenance it is contended that because lump sum amount is paid towards the claim of future maintenance and therefore the application is not maintainable, it would be the bounden duty of the Court to examine whether the lump sum amount of maintenance mentioned in the deed of divorce or claimed to have been paid otherwise, had any rational connection with the necessities of life to be provided for in future and was it not an illusory amount or was it sufficient amount to maintain herself for the entire life?{Para 7}

8. This principle has its roots in the public policy and the provisions of law. Underlying public policy, behind the provisions of law regarding maintenance is that one who is destitute should be provided maintenance by the person whose duty it is to maintain such person. This public policy cannot be circumvented and the object of law cannot be frustrated by making a payment of illusory amount of maintenance. As far as the surrender of future right to maintenance is concerned, answer is very simple. Agreement to surrender such right of future maintenance for illusory amount of maintenance would be unfair and unconscionable. Such agreement is entered into between two unequals. One (i.e. wife, child or parents, as the case may be) is destitute and helpless and another (i.e. husband, father or son as the case may be) relatively stronger and better placed in the society. Ordinarily this will be the position, though exception cannot be ruled out completely. In this background, if the amount determined for future maintenance is illusory, the agreement to surrender the right to maintenance also would be unlawful as it would be against the public policy and also unconscionable and unfair. 

 IN THE HIGH COURT OF GUJARAT

Decided On: 06.09.1985

Bai Laxmiben Vs. Bharatbhai Vechatbhai Patel and Ors.

Hon'ble Judges/Coram:

A.P. Ravani, J.

Citation: 1986 DMC 1 129,1986 CRI LJ 1418,1986 GLR 1 272,1985 SCC ONLINE GUJ 187, MANU/GJ/0123/1985.

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Supreme Court: What is the duty of executing court while executing decree for specific performance of contract?

The executing court was not clear, both as regards the facts and as to law. On facts, it did not take into account, the real purport of the decree. The relevant portion has already been extracted. The stipulation of two months was for the first Respondent to execute the decree. That stipulation, no doubt, is coupled with the right to receive the balance of consideration. There was nothing on record to indicate that he ever made any effort to collect or demand the balance of consideration from the Petitioner, within that time. The plea of the Petitioner that when he offered the amount, the Respondents refused to receive; remained unrebutted. The first Respondent did not file any rejoinder to the counter-affidavit. As observed in the preceding paragraphs, the executing court did not record any evidence of the parties. Therefore, the finding recorded by the trial court, in this behalf, cannot be sustained. When valuable rights accrued to a party, on account of the suit for specific performance being decreed, they cannot be taken away, on the basis of such an untenable finding.

{Para 17}

18. On the aspect of law, the executing court proceeded as though Section 28 of the Act gets attracted, though it did not mention in so many words. Firstly, the first Respondent himself did not invoke that provision. Secondly, the provision gets attracted only where, (a) the court, which passed the decree, directs the decree-holder to pay the purchaser money (balance of consideration) within a period, stipulated by it, and (b) the decree-holder failed to comply with the direction. It is then, and only then, that the court can consider the feasibility of directing rescission of contract. In the instant case, the time stipulated by the trial court in its decree was for the first Respondent to execute the decree, and not directly for the Petitioner to deposit the amount.

19. There is nothing on record to disclose that the first Respondent has ever made any effort to receive the amount, stipulated in the decree. On the other hand, the plea of the Petitioner that, when he offered to pay the amount, the first Respondent did not receive the same; remained unrebutted. The court must ensure strict compliance with the conditions stipulated in a provision, which has the effect of nullifying a decree. Even where two views are possible on the facts of the case, the one, which would sustain the decree, must be adopted.

 IN THE SUPREME COURT OF INDIA

Civil Appeal Nos. 563-566 of 2025.

Decided On: 17.01.2025

Balbir Singh and Ors. Vs. Baldev Singh (D) through His Lrs and Ors.

Hon'ble Judges/Coram:

J.B. Pardiwala and R. Mahadevan, JJ.

Author: J.B. Pardiwala, J.

Citation: MANU/SC/0079/2025.

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Supreme Court: What is the duty of court exercising contempt jurisdiction if an order does not contain any specific direction regarding a matter or if there is any ambiguity in the directions issued therein?

  The courts while exercising its contempt jurisdiction must remain circumspect, more particularly, where there exists a possibility of the order being amenable to more than one interpretation. In Jhareshwar Prasad Paul v. Tarak Nath Ganguly reported in   MANU/SC/0450/2002 : 2002:INSC:271 : (2002) 5 SCC 352 it was held that if an order does not contain any specific direction regarding a matter or if there is any ambiguity in the directions issued therein then it would be appropriate to direct the parties to approach the court which disposed of the matter for necessary clarification of the order instead of the court exercising its contempt jurisdiction thereby taking upon itself the power to decide the original proceeding in a manner not dealt with by the court passing the judgment or order. The relevant observations read as under: -

The contempt jurisdiction should be confined to the question whether there has been any deliberate disobedience of the order of the court and if the conduct of the party who is alleged to have committed such disobedience is contumacious. The court exercising contempt jurisdiction is not entitled to enter into questions which have not been dealt with and decided in the judgment or order... The court has to consider the direction issued in the judgment or order and not to consider the question as to what the judgment or order should have contained. At the cost of repetition, be it stated here that the court exercising contempt jurisdiction is primarily concerned with the question of contumacious conduct of the party, which is alleged to have committed deliberate default in complying with the directions in the judgment or order. If the judgment or order does not contain any specific direction regarding a matter or if there is any ambiguity in the directions issued therein then it will be better to direct the parties to approach the court which disposed of the matter for clarification of the order instead of the court exercising contempt jurisdiction taking upon itself the power to decide the original proceeding in a manner not dealt with by the court passing the judgment or order. {Para 203}

205. Where a decision is rendered and the impugned order is set-aside, it behoves any logic that an express direction to act must be given in respect of every aspect of the decision. The parties are duty bound to act in accordance with common sense. It is axiomatic that a party should obey both the letter and the spirit of a court order, and it is neither open for the parties to adopt a myopic and blinkered view of such decision nor any such interpretation or view that sub-serves their own interests. It is ultimately the purpose for which the order was granted that will be the lodestar in guiding the parties as to the true effect of the order and determination of the court.

206. If at all the parties are in doubts over the judgment and order of a court, the correct approach is to prefer a miscellaneous application for seeking clarification rather than proceeding to presume a self-serving interpretation of the decision. At this stage, we may also explain the correct approach to be adopted by the other courts and forums where a party seeks to espouse a cause based on its own understanding or interpretation of a decision of an higher authority. In such situations, the courts or forums should neither aid the parties in their attempt to reinterpret the decision of a higher court nor should they embark on an inquisitorial exercise of their own in order to derive the scope or intent of the order in question. The courts and tribunals should not conflate a decision of a higher court that declares a law with a decision that declares the inter-se rights of a parties, the former only operates as a precedent and thus, it is open for the lower courts to apply their minds to assess whether the same is applicable to the issues before it or what law has been laid down therein. However, the latter not only has precedential value but also carries with it the weight of determination of the issues directly involved between the very parties before it, the subject-matter itself and by extension the entire cause of action. Since such decisions have directly decided or given a finding on the inter-se rights and issues of the same parties that are before it and as such has to a certain extent a direct and palpable effect on the cause of action before it, in such circumstances, the courts and tribunals should refrain from interpreting or examining the scope or effect of such decisions on their own as the same would amount to relitigating the very same issues and rather should relegate the parties to seek clarification from the court that passed the order and adjourn further proceedings sine die.

IN THE SUPREME COURT OF INDIA

Contempt Petition (C) Nos. 158-159 of 2024.

Decided On: 13.12.2024

Celir LLP Vs. Sumati Prasad Bafna and Ors.

Hon'ble Judges/Coram:

J.B. Pardiwala and Manoj Misra, JJ.

Author: J.B. Pardiwala, J.

Citation: 2024 INSC 978,MANU/SC/1343/2024.

Read full Judgment here: Click here.

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What is the duty of appellate or revisional court if it is setting aside findings of facts recorded by trial court?

Learned counsel for the appellant submitted before us, and with justification, that the judgment and order of, the High Court does not disclose application of mind to the evidence on record, or to the findings recorded by the Trial Court, which were sought to be set aside by the impugned judgment and order. The finding of the High Court is as vague as it can be and it is not possible to cull out the reasons which persuaded the learned Judge to set aside the findings recorded by the Trial Court. We have earlier quoted the relevant part of the judgment which justifies the criticism of the learned counsel. It is well settled that the Appellate or Revisional Court while setting aside the findings recorded by the Court below must notice those findings, and if the Appellate or Revisional Court comes to the conclusion that the findings recorded by the Trial Court are untenable, record its reasons for coming to the said conclusion. Where the findings are findings of fact it must discuss the evidence on record which justify the reversal of the findings recorded by the Court below. This is particularly so when findings recorded by the Trial Court are sought to be set aside by an Appellate or Revisional Court. One cannot take exception to a judgment merely on the ground of its brevity, but if the judgment appears to be cryptic and conclusions are reached without even referring to the evidence on record or noticing the findings of the Trial Court, the party aggrieved is entitled to ask for setting aside of such a judgment.

{Para 11}

IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 1059 of 2003 

Decided On: 26.08.2003

Deb Narayan Halder Vs. Anushree Halder

Hon'ble Judges/Coram:

N. Santosh Hegde and B.P. Singh, JJ.

Author: B.P. Singh, J.

Citation:  AIR 2003 SC 3174,MANU/SC/0629/2003.

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What is duty of Motor accident claim tribunal while deciding claim petition under Motor vehicles Act?

 16. In the case of Shila Datta (Supra), this Court held as under:

10. A claim petition for compensation in regard to a motor accident (filed by the injured or in case of death, by the dependant family members) before the Motor Accident Claims Learned Tribunal constituted Under Section 165 of the Act is neither a suit nor an adversarial lis in the traditional sense. It is a proceeding in terms of and regulated by the provisions of Chapter XII of the Act which is a complete Code in itself. We may in this context refer to the following significant aspects in regard to the Learned Tribunals and determination of compensation by Learned Tribunals:

(ii) The Rules of pleadings do not strictly apply as the claimant is required to make an application in a form prescribed under the Act. In fact, there is no pleading where the proceedings are suo moto initiated by the Learned Tribunal.

(vi) The Learned Tribunal is required to follow such summary procedure as it thinks fit. It may choose one or more persons possessing special knowledge of and matters relevant to inquiry, to the assist it in holding the enquiry (vide Section 169 of the Act).

17. Reference in this connection may also be made to the observations made by this Court in the case of Sunita and Ors. v. Rajasthan State Road Transport Corporation and Ors. MANU/SC/0204/2019 : (2020) 13 SCC 486, wherein it was observed as under:

It is thus well settled that in motor accident claim cases, once the foundational fact, namely, the actual occurrence of the accident, has been established, then the Tribunal's role would be to calculate the quantum of just compensation if the accident had taken place by reason of negligence of the driver of a motor vehicle and, while doing so, the Tribunal would not be strictly bound by the pleadings of the parties. Notably, while deciding cases arising out of motor vehicle accidents, the standard of proof to be borne in mind must be of preponderance of probability and not the strict standard of proof beyond all reasonable doubt which is followed in criminal cases.

18. Similarly, in the case of Kusum Lata and Ors. v. Satbir and Ors. MANU/SC/0165/2011 : (2011) 3 SCC 646, this Court observed that it is well known that in a case relating to motor accident claims, the claimants are not required to prove the case as it is required to be done in a criminal trial. The Court must keep this distinction in mind.

19. It is well settled that Motor Vehicles Act, 1988 is a beneficial piece of legislation and as such, while dealing with compensation cases, once the actual occurrence of the accident has been established, the Tribunal's role would be to award just and fair compensation. As held by this Court in Sunita (Supra) and Kusum Lata (Supra), strict Rules of evidence as applicable in a criminal trial, are not applicable in motor accident compensation cases, i.e., to say, "the standard of proof to be borne in mind must be of preponderance of probability and not the strict standard of proof beyond all reasonable doubt which is followed in criminal cases".

20. In view of the above, we do not agree with the view taken by the High Court while rejecting the salary certificate (Exhibit 19) and pay slip (Exhibit 20) of the deceased merely on the ground that the person issuing the two aforementioned documents was not examined before the Learned Tribunal. The said documents are conclusive proof of the income of the deceased and were also corroborated by the statements of the deceased's wife (Appellant No. 1 herein) and his co-workers. As such, the High Court was not justified in assessing the income of the deceased at Rs. 4,836/- per month on the basis of minimum wages fixed by the State at the relevant time. Resultantly, we affirm the findings of the Learned Tribunal so far as they relate to assessing the deceased's income at Rs. 11,225/- per month on the basis of aforementioned two documents. Annual income of the deceased, therefore, amounts to, Rs. 11,225/- x 12 = Rs. 1,34,700/-.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 8179 of 2022 

Decided On: 09.12.2022

Rajwati and Ors. Vs. United India Insurance Company Ltd. and Ors.

Hon'ble Judges/Coram:

Krishna Murari and S. Ravindra Bhat, JJ.

Author: Krishna Murari, J.

Citation: MANU/SC/1595/2022,2022SCCONLINE SC 1699.

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Whether the court can convict accused based on oral evidence without insisting on documentary evidence though available?

 Basically prosecution case rests upon the documents in the form of registers and journals. First informant has inspected those documents and then only he came to conclusion that Applicant has not accounted money of Rs.28,834/- accepted from the account-holders. Without inspecting registers, he was not in a position to conclude about misappropriation. It is true that as per Section 61 of the Indian Evidence Act contents of the document can be proved either by primary or secondary evidence. In this case, they are not proved in either way. So, I find lacuna in the prosecution evidence i.e. to say even there is an oral evidence in the form of all the witnesses (except P.W.1), however their version could not be substantiated by producing the documentary evidence in the form of register and journals. So, it cannot be said that the offence of criminal breach of trust by the Applicant is proved beyond reasonable doubt. Though the investigating agency have seized some registers, but they were not tendered in evidence and proved. This is serious lacuna in the prosecution evidence. Without proving the documents, no finding of guilt for offence under Section 409 of IPC can be arrived at. So, certainly it has resulted into illegality when both the Courts convicted the Applicant for offence under Section 409 of IPC. Certainly, there is a scope for interference by the Revisional Court. So the conviction needs to be set aside. {Para 28}

Duty of Police & Court

29. It is the part of investigation to seize relevant register and journals. First informant in his FIR has given the duration of registers from 20th August 2006 upto 28th February 2007 whereas the registers seized were written upto 30th August 2004 and upto 15th February 2005). Even if they can be said to be relevant, they were kept in the police station only. Neither APP in-charge nor the trial Court Judge were vigilant in taking appropriate steps/directions. They conducted trial without registers. Trial Court discussed evidence and convicted the applicant by overlooking absence of important piece of evidence. It is strange even the Appellate Court overlooked this fact and confirmed the conviction. This is blatant disregard to the responsibility bestowed on the stakeholders.

 IN THE HIGH COURT OF BOMBAY

Criminal Revision Application (ST) No. 4181 of 2024 and Interim Application (ST) No. 4204 of 2024

Decided On: 19.03.2024

Anand Narayan Sakpal Vs. State of Maharashtra

Hon'ble Judges/Coram:

S.M. Modak, J.

Citation:  MANU/MH/2312/2024.

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What is duty of Magistrate before passing order of issue process against accused who is resident of area beyond his jurisdiction?

 However, regarding non-compliance of Section 202 of the

Code of Criminal Procedure while issuance of process, there is

substance in the contention of learned counsel for the applicants

that the provisions of Section 202 of the Code of Criminal Procedure are mandatory in nature and ought to have been complied in this case. Perusal of title of the complaint demonstrates that accused persons were residents of the place which was beyond the jurisdiction of the learned Magistrate. In such circumstances, it was not open for the learned Magistrate to issue process against them without conducting an enquiry or calling upon the concerned police to conduct enquiry. Since the accused were not residing within the jurisdiction of the Court, it was obligatory on the part of the learned Magistrate to postpone issuance of process against those accused till such enquiry is conducted. It is also brought to the notice of the Court that order passed by the learned Magistrate is not reasoned order. Needless to say that order of issuance of process need not be a detailed order however, it should reflect that the learned Magistrate has applied mind. In both cases, it would not be open for this Court

to quash the complaint but the complaint needs to be relegated back to Trial Court for issuance of process afresh.{Para 6}

IN THE HIGH COURT OF JUDICATURE OF BOMBAY

BENCH AT AURANGABAD

CRIMINAL APPLICATION NO. 851 OF 2023

Vikram Ambalal Vakil & others Vs The State of Maharashtra 

CORAM : R. M. JOSHI, J.

DATE : 21st AUGUST, 2023.

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What is the duty of the court before issuing process against accused?

 The requirement of Section 204 of the Code is that the Magistrate should carefully scrutinize the evidence brought on record. He/she may even put questions to complainant and his/her witnesses when examined Under Section 200 of the Code to elicit answers to find out the truth about the allegations. Only upon being satisfied that there is sufficient ground for summoning the Accused to stand the trial, summons should be issued.16 Summoning order is to be passed when the complainant discloses the offence, and when there is material that supports and constitutes essential ingredients of the offence. It should not be passed lightly or as a matter of course. When the violation of law alleged is clearly debatable and doubtful, either on account of paucity and lack of clarity of facts, or on application of law to the facts, the Magistrate must ensure clarification of the ambiguities. Summoning without appreciation of the legal provisions and their application to the facts may result in an innocent being summoned to stand the prosecution/trial. Initiation of prosecution and summoning of the Accused to stand trial, apart from monetary loss, sacrifice of time, and effort to prepare a defence, also causes humiliation and disrepute in the society. It results in anxiety of uncertain times.

22. While summoning an Accused who resides outside the jurisdiction of court, in terms of the insertion made to Section 202 of the Code by Act No. 25 of 2005, it is obligatory upon the Magistrate to inquire into the case himself or direct investigation be made by a police officer or such other officer for finding out whether or not there is sufficient ground for proceeding against the Accused.17 In the present case, the said exercise has not been undertaken.

 IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 2328 of 2022

Decided On: 02.01.2023

Deepak Gaba and Ors.  Vs. State of Uttar Pradesh and Ors.

Hon'ble Judges/Coram:

Sanjiv Khanna and J.K. Maheshwari, JJ.

Author: Sanjiv Khanna, J.

Citation: MANU/SC/0001/2023.

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What is the duty of the court before accepting a compromise petition?

 The present case depicts as to how on February 27, 1991 the court recorded the alleged agreement and compromise in a casual manner. It need not be impressed that Rule 3 of Order 23 does not require just a seal of approval from the Court to an alleged agreement or compromise said to have been entered into between the parties. The statute requires the Court to be first satisfied that the agreement or compromise which has been entered into between the parties is lawful, before accepting the same. Court is expected to apply its judicial mind while examining the terms of the settlement before the suit is disposed of in terms of the agreement arrived at between the parties. It need not be pointed out that once such a petition of compromise is accepted, it becomes the order of the Court and acquires the sanctity of a judicial order. {Para 11}

IN THE SUPREME COURT OF INDIA

Civil Appeal Nos. 2913-2915 of 2018

Prasanta Kumar Sahoo and Ors.  Vs.  Charulata Sahu and Ors.

Hon'ble Judges/Coram:

A.S. Bopanna and J.B. Pardiwala, JJ.

Author: J.B. Pardiwala, J.

Decided On: 29.03.2023

Citation: MANU/SC/0326/2023.

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Whether it is duty of the court to give mandatory injunction in cases of trespass?

  The entire circumstances revealed from the evidence on record unerringly point to the fact that the Appellant had encroached upon land belonging to the Respondent and without bona fides effected constructions which is verandah which is extension of residential building. The object of estoppel, as held in Madanappa's case, would be defeated if the said illegality is recognized and allowance is granted therefor. In the contextual situation, a decision of a learned Single Judge of High Court of Andhra Pradesh in N.C. Subbayya v. Pattan Abdulla Khan (1956) 69 LW (Andhra) 52 extracted in agreement in the decision by the learned Single Judge of High Court of Madras in the decision in Bodi Reddy v. Appu Goundan MANU/TN/0426/1970 : (1971) ILR 2 Madras 155, is worthy to be looked into. In the decision the learned Single Judge of the High Court of Andhra Pradesh after posing a question "has the court an absolute discretion to award damages instead of a mandatory injunction where there is a trespass by the Defendant on the Plaintiff's land?" held thus:

To say the building erected in such circumstances should not be directed to be removed and only damages could be awarded would, in my opinion, be ineffective, to sanction a condemnation of the Plaintiff's property and an appropriation of it for the Defendant's use.... To confine the relief to compensation in such a case is tantamount to allowing a trespasser to purchase another man's property against that man's will. No man should be compelled to sell his property against his will at a valuation and no person should be encouraged to do a wrongful act or commit a trespass relying on the length of his purse and his ability to pay damages for it.

To say that a small strip of building site could thus be appropriated by a trespasser would be to admit a Rule of law which can be applied limitlessly. In cases of trespass, the Court should ordinarily grant an injunction directing the Defendant to remove the encroachment and restore possession of the vacant site to the Plaintiff. Neither serious inconvenience to the Defendant--trespasser nor the absence of serious injury to the Plaintiff is a ground for depriving the latter for his legal right to the property.

As held by the learned Single Judge we are of the considered view that in a case where the owner of the land filed suit for recovery of possession of his land from the encroacher and once he establishes his title, merely because some structures are erected by the opposite party ignoring the objection, that too without any bona fide belief, denying the relief of recovery of possession would tantamount to allowing a trespasser/encroacher to purchase another man's property against that man's will. In Bodi Reddy's decision (supra) the learned Judge held that in a suit for recovery of possession filed within the period of limitation provided under Limitation Act, the doctrine of laches or acquiescence has no place to defeat the right of the Plaintiff to obtain the relief on his establishing his title.  {Para 20}

IN THE SUPREME COURT OF INDIA

Civil Appeal Nos. 6182-6183 of 2009

Decided On: 02.02.2023

Baini Prasad (D) Thr. LRs. Vs. Durga Devi

Hon'ble Judges/Coram:

B.R. Gavai and C.T. Ravikumar, JJ.

Author: C.T. Ravikumar, J.

Citation: MANU/SC/0088/2023.

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What is the court's duty when the proceeding in which a stay granted to recover money is dismissed?

  Following the said decision, this Court in Kanoria Chemicals and Industries Ltd. and Others v. U.P. State Electricity Board and Others, (1997) 5 SCC 772 has held that an order of stay which is granted during the pendency of a writ petition/suit or other proceeding comes to an end with the dismissal of the substantive proceedings and it is the duty of the court in such cases to put the parties in the same position that they would have been in but for the interim order of the court. In that case, this Court rejected the contention that when the operation of the notification itself was stayed, no surcharge could be demanded upon the amount withheld. It was held thus:

“11. …. Holding otherwise would mean that even though the Electricity Board, who was the respondent in the writ petitions succeeded therein, yet deprived of the late payment surcharge which was due to it under the tariff rules/regulations. It would be a case where the Board suffers prejudice on account of the orders of the court and for no fault of its. It succeeds in the writ petition and yet loses. The consumer files the writ petition, obtains stay of operation of the notification revising the rates and fails in his attack upon the validity of the notification and yet he is relieved of the obligation to pay the late payment surcharge for the period of stay, which he is liable to pay according to the statutory terms and conditions of supply — which terms and conditions indeed form part of the contract of supply entered into by him with the Board. We do not think that any such unfair and inequitable proposition can be sustained in law.

xxx xxx xxx

It is equally well settled that an order of stay granted pending disposal of a writ petition/suit or other proceeding, comes to an end with the dismissal of the substantive proceeding and that it is the duty of the court in such a case to put the parties in the same position they would have been but for the interim orders of the court. Any other view would result in the act or order of the court prejudicing a party (Board in this case) for no fault of its and would also mean rewarding a writ petitioner in spite of his failure. We do not think that any such unjust consequence can be countenanced by the courts. As a matter of fact, the contention of the consumers herein, extended logically should mean that even the enhanced rates are also not payable for the period covered by the order of stay because the operation of the very notification revising/enhancing the tariff rates was stayed. Mercifully, no such argument was urged by the appellants. It is un-understandable how the enhanced rates can be said to be payable but not the late payment surcharge thereon, when both the enhancement and the late payment surcharge are provided by the same notification — the operation of which was stayed.”{Para 19}

20. In Rajasthan Housing Board and Others v. Krishna Kumari, (2005) 13 SCC 151 this Court observed that Order 39 of the Civil Procedure Code, 1908 provides for grant of temporary injunction at the risk and responsibility of the person who obtains it and, if ultimately case is decided against such person, he would be liable to pay interest on the arrears of any amount due which had been stayed by the injunction order. The legal maxim actus curiae neminem gravabit, which means that an act of the Court shall prejudice no man, becomes applicable in such a case.

21. In South Eastern Coalfields Ltd. V. State of M.P. and Others, (2003) 8 SCC 648 the writ petitioner therein had argued that interest accrued due to nonpayment of enhanced amount of royalty was protected by a judicial order of an interim nature and, therefore, merely because the writ was finally dismissed, the writ petitioner should not be held liable for payment of interest so long as money was withheld under the protective umbrella of the injunction order. This submission was rejected by this Court by holding as under:

“The principle of restitution has been statutorily recognized in Section 144 of the Code of Civil Procedure, 1908. Section 144 CPC speaks not only of a decree being varied, reversed, set aside or modified but also includes an order on a par with a decree. The scope of the provision is wide enough so as to include therein almost all the kinds of variation, reversal, setting aside or modification of a decree or order. The interim order passed by the court merges into a final decision. The validity of an interim order, passed in favour of a party, stands reversed in the event of a final decision going against the party successful at the interim stage. Unless otherwise ordered by the court, the successful party at the end would be justified with all expediency in demanding compensation and being placed in the same situation in which it would have been if the interim order would not have been passed against it. The successful party can demand (a) the delivery of benefit earned by the opposite party under the interim order of the court, or (b) to make restitution for what it has lost; and it is the duty of the court to do so unless it feels that in the facts and on the circumstances of the case, the restitution far from meeting the ends of justice, would rather defeat the same. Undoing the effect of an interim order by resorting to principles of restitution is an obligation of the party, who has gained by the interim order of the court, so as to wipe out the effect of the interim order passed which, in view of the reasoning adopted by the court at the stage of final decision, the court earlier would not or ought not to have passed. There is nothing wrong in an effort being made to restore the parties to the same position in which they would have been if the interim order would not have existed.”

IN THE SUPREME COURT OF INDIA

 CIVIL APPELLATE JURISDICTION 

CIVIL APPEAL NO. 2417 OF 2022 

 STATE OF U.P. THR. SECRETARY AND ORS. Vs PREM CHOPRA

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What is difference between stay of operation of an order and quashing of an order?

 When the interim order was in force, the recovery of license fee was temporarily suspended. The restraint was only against the Department not to recover the license fee. There was no prohibition for the respondent to deposit the balance of license fee. It is to be stated here that the High Court has not quashed the demand of license fee made by the appellants. There is a difference between stay of operation of an order and quashing of an order which has been explained by this Court in Shree Chamundi Mopeds Ltd. V. Church of South India Trust Association CSI CINOD Secretariat, Madras, (1992) 3 SCC 1 as under:

“While considering the effect of an interim order staying the operation of the order under challenge, a distinction has to be made between quashing of an order and stay of operation of an order. Quashing of an order results in the restoration of the position as it stood on the date of the passing of the order which has been quashed. The stay of operation of an order does not, however, lead to such a result. It only means that the order which has been stayed would not be operative from the date of the passing of the stay order and it does not mean that the said order has been wiped out from existence.”{Para 18}

19. Following the said decision, this Court in Kanoria Chemicals and Industries Ltd. and Others v. U.P. State Electricity Board and Others, (1997) 5 SCC 772 has held that an order of stay which is granted during the pendency of a writ petition/suit or other proceeding comes to an end with the dismissal of the substantive proceedings and it is the duty of the court in such cases to put the parties in the same position that they would have been in but for the interim order of the court. In that case, this Court rejected the contention that when the operation of the notification itself was stayed, no surcharge could be demanded upon the amount withheld. It was held thus:

“11. …. Holding otherwise would mean that even though the Electricity Board, who was the respondent in the writ petitions succeeded therein, yet deprived of the late payment surcharge which was due to it under the tariff rules/regulations. It would be a case where the Board suffers prejudice on account of the orders of the court and for no fault of its. It succeeds in the writ petition and yet loses. The consumer files the writ petition, obtains stay of operation of the notification revising the rates and fails in his attack upon the validity of the notification and yet he is relieved of the obligation to pay the late payment surcharge for the period of stay, which he is liable to pay according to the statutory terms and conditions of supply — which terms and conditions indeed form part of the contract of supply entered into by him with the Board. We do not think that any such unfair and inequitable proposition can be sustained in law.

It is equally well settled that an order of stay granted pending disposal of a writ petition/suit or other proceeding, comes to an end with the dismissal of the substantive proceeding and that it is the duty of the court in such a case to put the parties in the same position they would have been but for the interim orders of the court. Any other view would result in the act or order of the court prejudicing a party (Board in this case) for no fault of its and would also mean rewarding a writ petitioner in spite of his failure. We do not think that any such unjust consequence can be countenanced by the courts.

IN THE SUPREME COURT OF INDIA

 CIVIL APPELLATE JURISDICTION 

CIVIL APPEAL NO. 2417 OF 2022 

 STATE OF U.P. THR. SECRETARY AND ORS. Vs PREM CHOPRA

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Duty of court while deciding bail application of accused in serious offences

Merely recording ―having perused the record‖ and ―on the facts and
circumstances of the case‖ does not sub-serve the purpose of a reasoned judicial
order. It is a fundamental premise of open justice, to which our judicial system is
committed, that factors which have weighed in the mind of the judge in the
rejection or the grant of bail are recorded in the order passed. Open justice is
premised on the notion that justice should not only be done, but should manifestly
and undoubtedly be seen to be done. The duty of judges to give reasoned
decisions lies at the heart of this commitment. Questions of the grant of bail
concern both liberty of individuals undergoing criminal prosecution as well as the
interests of the criminal justice system in ensuring that those who commit crimes
are not afforded the opportunity to obstruct justice. Judges are duty bound to
explain the basis on which they have arrived at a conclusion.

24 In Kalyan Chandra Sarkar v Rajesh Ranjan13, a two judge Bench of this
Court was required to assess the correctness of a decision of a High Court
enlarging the accused on bail. Justice Santosh Hegde, speaking for the Court,
discussed the law on the grant of bail in non-bailable offences and held:
―11. The law in regard to grant or refusal of bail is very well
settled. The court granting bail should exercise its discretion
in a judicious manner and not as a matter of course. Though
at the stage of granting bail a detailed examination of
evidence and elaborate documentation of the merit of the
case need not be undertaken, there is a need to indicate in
such orders reasons for prima facie concluding why bail
was being granted particularly where the accused is
charged of having committed a serious offence. Any
order devoid of such reasons would suffer from nonapplication
of mind.‖
(Emphasis supplied)
25 Where an order refusing or granting bail does not furnish the reasons that
inform the decision, there is a presumption of the non-application of mind which
may require the intervention of this Court. Where an earlier application for bail
has been rejected, there is a higher burden on the appellate court to furnish
specific reasons as to why bail should be granted.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
Criminal Appeal No. 1843 of 2019

Mahipal Vs  Rajesh Kumar @ Polia 

Dated:December 5, 2019.
Dr Dhananjaya Y Chandrachud, J

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What is duty of court if application is made for addition of parties in Representative Suit?

 Having given our considered thought to the point under reference, we are of the view that what was opined by the learned single Judge in Chintamani's case merits acceptance, because of which a person seeking to invoke the power of the court under Sub-rule (3), which power has been accepted by the learned Judge making the present reference also as discretionary, has to satisfy the court that the person on record is acting prejudicially to the applicant because of which he ought to be brought on record to protect his interest. As the power under Sub-rule (3) is discretionary, we would however like to observe that the circumstance under which the discretionary power can be exercised cannot be put in a strait-jacket, and so, if in a given case the court were to be satisfied that even without proving that the person on record is acting prejudicially to the applicant his prayer to be impleaded deserves to be allowed, it would be open for it to do so, but the court shall have to be satisfied that a reason akin to prejudicial acting by the person on record exists. To put it differently, the prayer would not be allowed merely on asking. We further state that merely because the application is not mala fide or does not tend to abuse the process of law, the same would not be required to be allowed unless the aforesaid requirement exists.

IN THE HIGH COURT OF ORISSA

Civil Revision No. 89 of 1990

Decided On: 04.08.1993

Balaram Palai Vs.   Collector, Puri

Hon'ble Judges/Coram:

B.L. Hansaria, C.J. and R.K. Patra, J.

Authored By : B.L. Hansaria, R.K. Patra

B.L. Hansaria, C.J.

Citation: Citation : AIR 1994 Ori 21

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Whether it is duty of executing court to interpret decree while executing it?

 On the other hand the learned counsel for the petitioner was justified in relying on judgment of the Hon'ble Supreme Court in the case of Meenakshi Saxena. vs. ECGC Ltd. (supra) wherein it has been held that although the executing Court cannot go beyond the decree, but it is the bounden duty of the executing Court to interpret the decree in the process of giving true effect to the decree. In the facts of the present case, a true effect to the decree can be granted only when the executing Court takes up the question of handing over of possession to the petitioner of the entire suit land admeasuring 5149 sq.ft. in the facts and circumstances of the present case.

IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

Writ Petition No. 1468 of 2017

Decided On: 04.03.2019

 Abdul Shahid Vs.  Rameshwaridevi

Hon'ble Judges/Coram:

Manish Pitale, J.

Citation: 2019(4) MHLJ 857

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What is duty of court while recording statement of accused U/S 313 of CRPC?

 It is trite to say that, in view of the judgments referred to by the

learned Senior Counsel, aforesaid, the incriminating material is to be put

to the accused so that the accused gets a fair chance to defend himself.

This is in recognition of the principles of audi alteram partem. Apart

from the judgments referred to aforesaid by the learned Senior Counsel,

we may usefully refer to the judgment of this Court in Asraf Ali v. State

of Assam (2008) 16 SCC 328. The relevant observations are in the following paragraphs:

“21. Section 313 of the Code casts a duty on the Court to put in an

enquiry or trial questions to the accused for the purpose of

enabling him to explain any of the circumstances appearing in the

evidence against him. It follows as necessary corollary therefrom

that each material circumstance appearing in the evidence against

the accused is required to be put to him specifically, distinctly and

separately and failure to do so amounts to a serious irregularity

vitiating trial, if it is shown that the accused was prejudiced.

22. The object of Section 313 of the Code is to establish a direct

dialogue between the Court and the accused. If a point in the

evidence is important against the accused, and the conviction is

intended to be based upon it, it is right and proper that the accused

should be questioned about the matter and be given an opportunity

of explaining it. Where no specific question has been put by the

trial Court on an inculpatory material in the prosecution evidence,

it would vitiate the trial. Of course, all these are subject to rider

whether they have caused miscarriage of justice or prejudice. This

Court also expressed similar view in S. Harnam Singh v. The State

(AIR 1976 SC 2140), while dealing with Section 342 of the

Criminal Procedure Code, 1898 (corresponding to Section 313 of

the Code). Non- indication of inculpatory material in its relevant

facets by the trial Court to the accused adds to vulnerability of the

prosecution case. Recording of a statement of the accused under

Section 313 is not a purposeless exercise.”

23. While making the aforesaid observations, this Court also referred

to its earlier judgment of the three Judge Bench in Shivaji Sahabrao

Bobade v. State of Maharashtra (1973) 2 SCC 793

, which considered the fall out of the omission to put to the accused a question on a vital circumstance

appearing against him in the prosecution evidence, and the requirement

that the accused’s attention should be drawn to every inculpatory material

so as to enable him to explain it. Ordinarily, in such a situation, such

material as not put to the accused must be eschewed. 

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.1905 OF 2009

SAMSUL HAQUE  Vs THE STATE OF ASSAM

SANJAY KISHAN KAUL, J.

Dated:August 26, 2019.

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Duty of court while recording statement of accused U/S 313 of CRPC

 The words of P.B. Gajendragadkar, J. (as he then was) in Jai Dev v. State of Punjab MANU/SC/0134/1962 : AIR 1963 SC 612 speaking for three-Judge Bench with reference to Section 342 of the Code (corresponding to Section 313 of the 1973 Code) may be usefully quoted:

21....the ultimate test in determining whether or not the accused has been fairly examined under Section 342 would be to enquire whether, having regard to all the questions put to him, he did get an opportunity to say what he wanted to say in respect of prosecution case against him. If it appears that the examination of the accused person was defective and thereby a prejudice has been caused to him, that would no doubt be a serious infirmity....

55. In Shivaji Sahabrao Bobade and Anr. v. State of Maharashtra MANU/SC/0167/1973 : 1973 (2) SCC 793 a 3-Judge Bench of this Court stated:

16....It is trite law, nevertheless fundamental, that the prisoner's attention should be drawn to every inculpatory material so as to enable him to explain it. This is the basic fairness of a criminal trial and failures in this area may gravely imperil the validity of the trial itself, if consequential miscarriage of justice has flowed. However, where such an omission has occurred it does not ipso facto vitiate the proceedings and prejudice occasioned by such defect must be established by the accused. In the event of evidentiary material not being put to the accused, the court must ordinarily eschew such material from consideration. It is also open to the appellate court to call upon the counsel for the accused to show what explanation the accused has as regards the circumstances established against him but not put to him and if the accused is unable to offer the appellate court any plausible or reasonable explanation of such circumstances, the court may assume that no acceptable answer exists and that even if the accused had been questioned at the proper time in the trial court he would not have been able to furnish any good ground to get out of the circumstances on which the trial court had relied for its conviction.

56. The above decisions have been referred in Asraf Ali v. State of Assam MANU/SC/7839/2008 : 2008 (16) SCC 328. The Court stated:

21. Section 313 of the Code casts a duty on the court to put in an enquiry or trial questions to the accused for the purpose of enabling him to explain any of the circumstances appearing in the evidence against him. It follows as a necessary corollary therefrom that each material circumstance appearing in the evidence against the accused is required to be put to him specifically, distinctly and separately and failure to do so amounts to a serious irregularity vitiating trial, if it is shown that the accused was prejudiced.

22. The object of Section 313 of the Code is to establish a direct dialogue between the court and the accused. If a point in the evidence is important against the accused, and the conviction is intended to be based upon it, it is right and proper that the accused should be questioned about the matter and be given an opportunity of explaining it. Where no specific question has been put by the trial court on an inculpatory material in the prosecution evidence, it would vitiate the trial. of course, all these are subject to rider whether they have caused miscarriage of justice or prejudice.

24. In certain cases when there is perfunctory examination under Section 313 of the Code, the matter is remanded to the trial court, with a direction to retry from the stage at which the prosecution was closed.

57. From the above, the legal position appears to be this: the accused must be apprised of incriminating evidence and materials brought in by the prosecution against him to enable him to explain and respond to such evidence and material. Failure in not drawing the attention of the accused to the incriminating evidence and inculpatory materials brought in by prosecution specifically, distinctly and separately may not by itself render the trial against the accused void and bad in law; firstly, if having regard to all the questions put to him, he was afforded an opportunity to explain what he wanted to say in respect of prosecution case against him and secondly, such omission has not caused prejudice to him resulting in failure of justice. The burden is on the accused to establish that by not apprising him of the incriminating evidence and the inculpatory materials that had come in the prosecution evidence against him, a prejudice has been caused resulting in miscarriage of justice.

58. Insofar as present case is concerned, in his statement under Section 313, the Appellant was informed about the evidence relating to the incident that occurred in the early hours (between 3.45 a.m. to 4.00 a.m.) of November 12, 2006 and the fact that repairs were going on the road at that time. The Appellant accepted this position. The Appellant was also informed about the evidence of the prosecution that vehicle No. MH-01-R-580 was involved in the said incident. This was also accepted by the Appellant. His attention was brought to the evidence of the eye-witnesses and injured witnesses, namely, PW-2, PW-3, PW-4, PW-5, PW-6, PW- 7, PW-8, PW-9 and PW-10 that at the relevant time they were sleeping on the pavement of Carter Road, Bandra (West) outside the temporary huts and there was an accident in which seven persons died and eight persons got injured. The attention of the Appellant was also drawn to the evidence of the spot panchas (PW-11 and PW-16) that they had noticed that the car No. MH-01-R- 580 at the time of preparation of spot panchnama was in a heavily damaged condition with dislodged right side wheel and some blood was found on the earth and the huts were found damaged. The prosecution evidence that the Appellant was seen driving car No. MH-01-R-580 at high speed from Khar Danda side and that rammed over the footpath and crushed the labourers sleeping there was also brought to his notice. The evidence of the mechanical expert (PW-15) that he checked the vehicle and found no mechanical defect in the car was also brought to his notice. During investigation, the police concluded that the rash and negligent driving of the Appellant by consuming alcohol caused the death of seven persons and injury to the eight persons. The conclusion drawn on the completion of investigation was also put to him. The Appellant's attention was also invited to the materials such as photographs, mechanical inspections of the car, seized articles, liquor bottle, etc. Having regard to the above, it cannot be said that the Appellant was not made fully aware of the prosecution evidence that he had driven the car rashly or negligently in a drunken condition. He had full opportunity to say what he wanted to say with regard to the prosecution evidence.

59. The High Court in this regard held as under:

29....The salutary provision of Section 313 of the Code have been fairly, or at least substantially, complied with by the trial court, in the facts and circumstances of this case. The real purpose of putting the accused at notice of the incriminating circumstances and requiring him to offer explanation, if he so desires, has been fully satisfied in the present case. During the entire trial, copies of the documents were apparently supplied to the accused, even prior to the framing of the charge. After such charge was framed, all the witnesses were examined in the presence of the accused and even limited questions regarding incriminating material put by the court to the accused in his statement under Section 313 of the Code shows that the entire prosecution case along with different exhibits was put to the accused. He in fact did not deny the suggestions that the witnesses had been examined in his presence and he was aware about the contents of their statements. All this essentially would lead to only one conclusion that the contention raised on behalf of the accused in this regard deserves to be rejected. While rejecting this contention we would also observe that the admission or confession of the accused in his statement under Section 313 of the Code, in so far as it provides support or even links to, or aids the case of the prosecution proved on record, can also be looked into by the court in arriving at its final conclusion. It will be more so when explanation in the form of answers given by the accused under Section 313 of the Code are apparently untrue and also when no cross examination of the crucial prosecution witnesses was conducted on this line.

We are in agreement with the above view of the High Court.

IN THE SUPREME COURT OF INDIA

Criminal Appeal Nos. 1318-1320 of 2007

Decided On: 12.01.2012

Alister Anthony Pareira  Vs. State of Maharashtra

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Whether the court must appoint Guardian-at-litem to wife prior to passing of decree for annulment of marriage on ground of her mental illness?

The facts referred above, disclose that there are serious allegations of mental disorder of Seema, the respondent in the HMP filed by her husband. In fact, the husband has claimed annulment of marriage on the ground of mental disorder. Even the medical evidence was laid showing that she was taking treatment for mental disorder. In such circumstances, it was bounden duty of the trial Court as well as the First Appellate Court to hold inquiry as to whether she was capable of defending herself or not.

9. In Ramchandra Arya Vs. Mansingh-MANU/SC/0352/1967 : AIR 1968 SC 954, it is held that decree against the lunatic without appointment of Guardian-at-litem is nullity and the sale held in execution of the decree is also void-ab-initio.

10. In Tipanna Vs. Somnath 1990 I BCR 677, it is held that decree against the person of unsound mind, without appointment of Guardian-ad-litem is void ab-initio.

After considering the various rulings cited before me and referred herein above, I have no doubt that both the Courts below erred in completely overlooking the provisions of Order 32 Rule 15 which are mandatory in nature. If those provisions are not followed and a decree is passed against a person having mental disorder, it would be nullity. It will not be proper not to interfere even when both Courts below have passed Judgments and orders which amount to nullity. Both the Courts below were bound to hold enquiry as contemplated under Order 32 Rule 15. When any plaint or petition is filed by a person either himself or through next friend, claiming himself to be a person suffering from mental infirmity or suit is filed by a person against a defendant or respondent, who is alleged to be suffering from mental infirmity, it is bounden duty of the Court to hold enquiry in this regard.

IN THE HIGH COURT OF BOMBAY (AURANGABAD BENCH)

Second Appeal No. 284 of 2018 and Civil Application No. 5300 of 2018

Decided On: 21.11.2018

 Seema Ambadas Khedkar  Vs. Ambadas Jagannath Khedkar

Hon'ble Judges/Coram:

A.M. Dhavale, J.

Citation: AIR 2019 Bom 22

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What is duty of court while deciding domestic violence proceeding?

 Regard being had to the nature of the legislation, a more sensitive approach is expected from the courts where under the 2005 Act no relief can be granted, it should never be conceived of but, before throwing a petition at the threshold on the ground of maintainability, there has to be an apposite discussion and thorough deliberation on the issues raised. It should be borne in mind that helpless and hapless "aggrieved person" under the 2005 Act approaches the court under the compelling circumstances. It is the duty of the court to scrutinise the facts from all angles whether a plea advanced by the Respondent to nullify the grievance of the aggrieved person is really legally sound and correct. The principle "justice to the cause is equivalent to the salt of ocean" should be kept in mind. The court of law is bound to uphold the truth which sparkles when justice is done. Before throwing a petition at the threshold, it is obligatory to see that the person aggrieved under such a legislation is not faced with a situation of non-adjudication, for the 2005 Act as we have stated is a beneficial as well as assertively affirmative enactment for the realisation of the constitutional rights of women and to ensure that they do not become victims of any kind of domestic violence.

IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 1545 of 2015 (Arising out of SLP (Crl.) No. 10223 of 2014)

Decided On: 20.11.2015

Krishna Bhatacharjee Vs.  Sarathi Choudhury and Ors.

Hon'ble Judges/Coram:

Dipak Misra and Prafulla C. Pant, JJ.

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