Under which circumstances person accused of offences under SC& ST(Atrocities) Act is entitled to be released on Anticipatory bail?

 The basic ingredients for constituting an offence under Section 3(1)(u) of the Act, 1989 are:

a. Accused should not be a member of the Schedule Caste or Scheduled Tribe;

b. Accused should by words, either written or spoken, or by signs or by visible representation or otherwise;

c. Promote or attempt to promote feelings of enmity, hatred or ill-will against members of the Scheduled Caste or the Scheduled Tribes.

{Para 76}

77. In our opinion, there is nothing to even prima facie indicate that the appellant by publishing the video on YouTube promoted or attempted to promote feelings of enmity, hatred or ill-will against the members of Scheduled Castes or Scheduled Tribes. The video has nothing to do in general with the members of Scheduled Caste or the Scheduled Tribe. His target was just the complainant alone. The offence under Section 3(1)(u) will come into play only when any person is trying to promote ill feeling or enmity against the members of the scheduled castes or scheduled tribes as a group and not as individuals.

vi. Whether mere knowledge of the caste identity of the complainant is sufficient to attract the offence under Section 3(1)(r) of the Act, 1989?

78. It was also sought to be argued that the appellant knew very well that the complainant belongs to a Scheduled Caste and despite such knowledge if he went on to make derogatory utterances in the video then the offence under Sections 3(1)(r) and 3(1)(u) respectively of the Act, 1989 could be said to have been prima facie made out.

79. We find no merit in the aforesaid submission. Wherever the legislature intended that mere knowledge of the fact that the victim is a member of Scheduled Caste or Scheduled Tribe would be sufficient to constitute an offence under the Act, 1989, it has said so in so many words. We may reproduce some of the relevant provisions where knowledge that the complainant belongs to the Scheduled Castes or Scheduled Tribes is sufficient in itself to constitute the offence:

80. At the cost of repetition, the words in Section 3(1)(r) of the Act, 1989 are altogether different. Mere knowledge of the fact that the victim is a member of the Scheduled Caste or Scheduled Tribe is not sufficient to attract Section 3(1)(r) of the Act, 1989. As discussed earlier, the offence must have been committed against the person on the ground or for the reason that such person is a member of Scheduled Caste or Scheduled Tribe. When we are considering whether prima facie materials exist, warranting arrest of the appellant, there is nothing to indicate that the allegations/statements alleged to have been made by the appellant were for the reason that the complainant is a member of a Scheduled Caste.

81. The High Court in its impugned order has observed “materials on record do indicate that the video is intended to insult and humiliate the second respondent.” The High Court may be right in observing that the intention of the appellant could have been to insult and humiliate the complainant but the High Court failed to consider whether such insult or humiliation was on account of or for the reason that the complainant belongs to Scheduled Caste. Is it the case of the complainant that had he not belonged to a Scheduled Caste, the appellant would not have levelled the allegations? The answer lies in the question itself.

 In the Supreme Court of India

(Before J.B. Pardiwala and Manoj Misra, JJ.)

Shajan Skaria Vs  State of Kerala and Another 

Criminal Appeal No. 2622 of 2024 (Arising out of SLP (Crl.) No. 8081 of 2023)

Decided on August 23, 2024

Citation: 2024 SCC OnLine SC 2249.

Print Page

Supreme Court: What three aspects are to be considered while granting stay?

While granting stay, this Court must consider three aspects-

(i) Balance of convenience

(ii) Irreparable harm or injury

(iii) That there is a prima facie case.{Para 9}

 IN THE SUPREME COURT OF INDIA

Civil Appeal No. 8899 of 2019

Decided On: 15.11.2019

State of Mizoram and Ors. Vs. Pooja Fortune Pvt. Ltd.

Hon'ble Judges/Coram:

Deepak Gupta and Aniruddha Bose, JJ.

Author: Deepak Gupta, J.

Citation:  MANU/SC/1883/2019.

Print Page

Whether Session court should set aside order of issue process if prima facie case is made out against accused?

 The aforesaid order was challenged by the Respondents before the Additional Sessions Judge. The Sessions Court held that no offence punishable Under Section 420 read with Section 120-B, Indian Penal Code was made out as the factum of earlier marriage of the Respondent No. 1 was clearly disclosed to the Appellant. The Sessions Judge failed to appreciate the fact that certain events had taken place thereafter, namely, apprising the Appellant about the decree of divorce having been passed and showing the forged copy thereof to him on mobile. The Learned Sessions Court has considered the revision against the summoning order as if after trial the findings of conviction or acquittal was to be recorded. It was a preliminary stage of summoning. For summoning of an Accused, prima facie case is to be made out on the basis of allegations in the complaint and the pre-summoning evidence led by the complainant. {Para 12.1.}

13. In a challenge by the Appellant to the aforesaid order in the quashing petition, the High Court dismissed the petition without recording any reasons.

14. Considering the material on record, in our opinion the approach of the Learned Sessions Court and the High Court in setting aside the summoning order against the Accused persons i.e. Respondent Nos. 1, 2 and 3 Under Section 420 read with Section 120-B Indian Penal Code is not legally sustainable.

IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 2272 of 2024.

Decided On: 26.04.2024

Aniruddha Khanwalkar Vs. Sharmila Das and Ors.

Hon'ble Judges/Coram:

C.T. Ravikumar and Rajesh Bindal, JJ.

Author: Rajesh Bindal, J.

Citation:  MANU/SC/0350/2024.

Print Page

Whether arbitrator should decide the application for interim relief in arbitration relying on principles for grant of temporary injunction?

Being an arbitral tribunal and having a trooping of Civil Court, while making decisions, the arbitral tribunal has to follow the procedure as contemplated under law.  If any interim Order of injunction is to be passed exparte, certainly, the tribunal has to keep in mind the well settled principles of law.  While granting interim injunctions, only on being satisfied that there is a prima facie case in favour of the applicant and that balance of convenience is in his favour and irreparable loss or injury is likely to occur in the event of injunction not granted and  only on being satisfied with the above grounds, interim Order of injunction can be granted by the tribunal.  Whereas, in many Orders, this Court has come across, particularly in the arbitration cases, arising out of hire purchase and finance agreement, the arbitrator nominated by the financiers are passing Orders mechanically, without following any rule of law.  Any such Order, in my view, cannot be sustained in the eye of law.  Therefore, while passing any Order in the nature of interim injunction, the basic well established principles have to be followed by the arbitrator. 

42.  While passing any order for preservation or interim custody or a sale of any goods, which is subject matter of arbitral agreement or to secure any amount, also preservation, the well established principles have to be followed by the arbitrators.  Similarly, whenever the arbitral tribunal finds that such interim measures have to be passed, the arbitrator has to satisfy himself prima facie case of the applicant.  The tribunal also has to find out the actual dispute and bonafide contest existing between the parties.  Prima facie in the sense, the tribunal has to satisfy that the plaintiff has made positive averments that he has a strong case and legal right over the property, which has to be preserved or protected.  To find out balance of convenience, the tribunal has to find out whether there is any bonafide contest between the parties and on which side the balance of convenience lies.  Similarly, the tribunal also has to weigh whether in the event of not granting any injunction, the applicant will be really put to irreparable loss and injury.  Only on being satisfied with these facts, interim Orders, particularly in the nature of injunction, can be granted.  

 IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 17.09.2020

CORAM :

 MR.JUSTICE N.SATHISH KUMAR

C.M.A.Nos.25 to 28, 30 and 66 to 88 of 2020

and C.M.P.Nos.271, 273, 275, 277, 289,

617 to 621, 623 to 640 of 2020

Flywheel Logistics Solutions Pvt. Ltd.  Vs M/s.Hinduja Leyland Finance Ltd.,

 

Print Page

Supreme Court: Court should not pass the order of status-quo if the plaintiff fails to make out prima facie case

In view of the above, the trial Court

rightly dismissed the application, as at present

no evidence with regard to purchase of first

floor over the suit property in dispute was

produced by the appellant/plaintiff. In view of

this, judgments referred by counsel for the

appellant are not applicable at this stage”

In our opinion, the High Court committed manifest

error in directing the parties to maintain status quo

despite the fact that no prima facie case was made out by

the plaintiffs for grant of such relief.

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 2737 OF 2020

POOJA MITTAL Vs   RAKESH KUMAR

Dated: July 14, 2020

Print Page

Whether additional accused can be summoned U/S 319 of CRPC even if there is no prima facie case against him?

A Constitution Bench of this Court in Hardeep Singh v. State of Punjab and Ors. MANU/SC/0025/2014 : (2014) 3 SCC 92 while examining the scope of Section 319 of the Code, held as under:

100. However, there is a series of cases wherein this Court while dealing with the provisions of Sections 227, 228, 239, 240, 241, 242 and 245 Code of Criminal Procedure, has consistently held that the court at the stage of framing of the charge has to apply its mind to the question whether or not there is any ground for presuming the commission of an offence by the Accused. The court has to see as to whether the material brought on record reasonably connect the Accused with the offence. Nothing more is required to be enquired into. While dealing with the aforesaid provisions, the test of prima facie case is to be applied. The court has to find out whether the materials offered by the prosecution to be adduced as evidence are sufficient for the court to proceed against the Accused further..........

xx xx xx

105. Power Under Section 319 Code of Criminal Procedure is a discretionary and an extraordinary power. It is to be exercised sparingly and only in those cases where the circumstances of the case so warrant. It is not to be exercised because the Magistrate or the Sessions Judge is of the opinion that some other person may also be guilty of committing that offence. Only where strong and cogent evidence occurs against a person from the evidence led before the court that such power should be exercised and not in a casual and cavalier manner.

106. Thus, we hold that though only a prima facie case is to be established from the evidence led before the court, not necessarily tested on the anvil of cross-examination, it requires much stronger evidence than mere probability of his complicity. The test that has to be applied is one which is more than prima facie case as exercised at the time of framing of charge, but short of satisfaction to an extent that the evidence, if goes unrebutted, would lead to conviction. In the absence of such satisfaction, the court should refrain from exercising power Under Section 319 Code of Criminal Procedure In Section 319 Code of Criminal Procedure the purpose of providing if "it appears from the evidence that any person not being the Accused has committed any offence" is clear from the words "for which such person could be tried together with the Accused'. The words used are not "for which such person could be convicted". There is, therefore, no scope for the court acting Under Section 319 Code of Criminal Procedure to form any opinion as to the guilt of the Accused.

12. In Labhuji Amratji Thakor and Ors. v. State of Gujarat and Ors. MANU/SC/1302/2018 : AIR 2019 SC 734, this Court held that the Court has to consider substance of the evidence, which has come before it and has to apply the test, i.e., "more than prima facie case as exercised at the time of framing of charge, but short of satisfaction to an extent that the evidence, if goes unrebutted, would lead to conviction.

IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 1517 of 2019

Decided On: 17.10.2019

Mani Pushpak Joshi  Vs. State of Uttarakhand and Ors.

Hon'ble Judges/Coram:

L. Nageswara Rao and Hemant Gupta, JJ.

Citation: (2019) 9 SCC 805

Print Page

Whether it is necessary for court to see conduct of plaintiff while deciding injunction application?

 Chapter VII, Section 36 of the Specific Relief Act, 1963 (hereinafter referred to as 'the Act') provides for grant of preventive relief. Section 37 provides that temporary injunction in a suit shall be regulated by the Code of Civil Procedure. The grant of relief in a suit for specific performance is itself a discretionary remedy. A Plaintiff seeking temporary injunction in a suit for specific performance will therefore have to establish a strong prima-facie case on basis of undisputed facts. The conduct of the Plaintiff will also be a very relevant consideration for purposes of injunction. The discretion at this stage has to be exercised judiciously and not arbitrarily.

16. The cardinal principles for grant of temporary injunction were considered in Dalpat Kumar v. Prahlad Singh, MANU/SC/0715/1991 : (1992) 1 SCC 719, observing as follows:

5...Satisfaction that there is a prima facie case by itself is not sufficient to grant injunction. The Court further has to satisfy that non-interference by the Court would result in "irreparable injury" to the party seeking relief and that there is no other remedy available to the party except one to grant injunction and he needs protection from the consequences of apprehended injury or dispossession. Irreparable injury, however, does not mean that there must be no physical possibility of repairing the injury, but means only that the injury must be a material one, namely one that cannot be adequately compensated by way of damages. The third condition also is that "the balance of convenience" must be in favour of granting injunction. The Court while granting or refusing to grant injunction should exercise sound judicial discretion to find the amount of substantial mischief or injury which is likely to be caused to the parties, if the injunction is refused and compare it with that which is likely to be caused to the other side if the injunction is granted. If on weighing competing possibilities or probabilities of likelihood of injury and if the Court considers that pending the suit, the subject matter should be maintained in status quo, an injunction would be issued. Thus the Court has to exercise its sound judicial discretion in granting or refusing the relief of ad interim injunction pending the suit.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 9346 of 2019 

Decided On: 06.01.2020

 Ambalal Sarabhai Enterprise Limited  Vs.  KS Infraspace LLP Limited 

Hon'ble Judges/Coram:

Ashok Bhushan and Navin Sinha, JJ.

Print Page

When court should reject application for framing of issues in execution of decree?

Respondent No. 2 then filed one more application, Exh.-65, praying for, inter alia, framing of appropriate issue so that proper adjudication could be made in terms of the provisions of Order 21 Rules 97 and 101 of the Code of Civil Procedure. This application was also resisted by the petitioner. However, the application was allowed by the executing Court by its order passed on 20th February, 2018. It is this order which is now under challenge in the present writ petition.

I have already discussed as to how the decree passed for eviction against the respondent No. 1 came to be confirmed by the Hon'ble Supreme Court. This decree was passed in Special Civil Suit No. 517/1995. In the written statement filed by the respondent No. 1 in this suit, the respondent No. 1 asserted that the possession of the suit property was handed over to him by the petitioner himself. He did not refer to his joint possession of the suit property along with his brother. The High Court found that the plea that the possession of the suit property was handed over by the petitioner to the respondent No. 1 as groundless and further found that the respondent No. 1 had obtained possession of the suit property forcibly and, therefore, allowing the revision application, decreed the suit that was filed under Section 6 of the Specific Relief Act. This decree as stated earlier, was confirmed by the Hon'ble Apex Court.

16. So, the rights and obligations of the parties in the present case have been crystallized by a decree which has attained its finality. The right to seek possession of the suit property from the respondent No. 1 has now stood vested in the petitioner, the decree holder and this right now cannot be scuttled or obstructed by anybody who is stranger to the decree. Of course, a limited right to protect possession of the suit property has also been given under Order 21 Rule 97 CPC to any person who claims to be in possession and till such right is decided, the protection is required to be extended to such an obstructer. But, in order to assert such a right, such other person, in the present case respondent No. 2, would be required to demonstrate his prima facie case in the matter. He is required to place before the executing Court some material on the basis of which, the executing Court could record its satisfaction that a dispute as contemplated under Order 21 Rule 97 CPC has been raised and such dispute would require an adjudication as mandated by Rule 101, Order 21 read with paragraph 345 Chapter 21 of the Civil Manual.

17. In the present case, although the respondent No. 2 submits that he was put into possession of the suit property by the petitioner himself and he also averred that he carried on his business under the name and style as 'Airtech Marketing' from the suit property with the consent of his brother i.e. respondent No. 1. But, the discussion made earlier would show that this was never the case of the respondent No. 1. His case was that he was put into possession of the suit property by the petitioner himself and that he does not refer to his brother also being in possession along with him of the suit property. It was, therefore, required of the respondent No. 2 to place on record some material from which it could be said that there is prima facie substance in the contention of the respondent No. 2 about his being placed into possession by the petitioner. No such material has been placed on record, however, by the respondent No. 2. In the absence of any such material, the contention that the respondent No. 2 is entitled to secure protection of his possession till his right to remain in the property is decided cannot be said to be giving rise to any dispute as contemplated under Order 21 Rule 97 CPC. 

IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

Writ Petition No. 2027 of 2018

Decided On: 31.08.2018

Kailashchandra Kedarmalji Vs. Kochaveedu Varghese Joseph and Ors.

Hon'ble Judges/Coram:

S.B. Shukre, J.

Citation: 2019(1) MHLJ 662

Print Page

Leading judgment of Supreme court on interim mandatory injunction and moulding of relief

 That apart, the learned Single Judge as well as the Division Bench have committed fundamental error in applying the principle of moulding of relief which could at best be resorted to at the time of consideration of final relief in the main suit and not at an interlocutory stage. The nature of order passed against the appellant is undeniably a mandatory order at an interlocutory stage. There is marked distinction

between moulding of relief and granting mandatory relief at an interlocutory stage. As regards the latter, that can be granted only to restore the status quo and not to establish a new set of things differing from the state which existed at the date when the suit was instituted.This Court in Dorab Cawasji Warden Versus Coomi Sorab Warden and Others,2 has had occasion to consider the circumstances warranting grant of interlocutory mandatory injunction. In paragraphs 16 & 17, after analysing the legal precedents on the point as noticed in paragraphs 11-15, the Court went on to observe as follows:

“16. The relief of interlocutory mandatory injunctions are thus granted generally to preserve or restore the status quo of the last non-contested status which preceded the pending controversy until the final hearing when full relief may be granted or to compel the undoing of those acts that have been illegally done or the restoration of that which was wrongfully taken from the party complaining. But since the granting of such an injunction to a party who fails or would fail to establish his right at the trial may cause great injustice or irreparable harm to the party against whom it was granted or alternatively not granting of it to a party who succeeds or would succeed may equally cause great injustice or irreparable harm, courts have evolved certain guidelines. Generally stated these guidelines are: (1) The plaintiff has a strong case for trial. That is, it shall be of a higher standard than a prima facie case that is normally required for a prohibitory injunction.

2 (1990) 2 SCC 117

(2) It is necessary to prevent irreparable or serious injury which normally cannot be compensated in terms of money.

(3) The balance of convenience is in favour of the one seeking such relief.

17. Being essentially an equitable relief the grant or refusal of an interlocutory mandatory injunction shall ultimately rest in the sound judicial discretion of the court to be exercised in the light of the facts and circumstances in each case. Though the above guidelines are neither exhaustive nor complete or absolute rules, and there may be exceptional circumstances needing action, applying them as prerequisite for the grant or refusal of such injunctions would be a sound exercise of a judicial discretion.”

(emphasis supplied)

25. The Court, amongst others, rested its exposition on the dictum in Halsbury‟s Laws of England, 4th edition, Volume 24, paragraph 948, which reads thus:

“A mandatory injunction can be granted on an interlocutory application as well as at the hearing, but, in the absence of special circumstances, it will not normally be granted. However, if the case is clear and one which the court thinks ought to be decided at once, or if the act done is a simple and summary one which can be easily remedied, or if the defendant attempts to steal a march on the plaintiff, such as where, on receipt of notice that an injunction is about to be applied for, the defendant hurries on the work in respect of which complaint is made so that when he receives notice of an interim injunction it is completed, a mandatory injunction will be granted on an interlocutory application.”

26. The principle expounded in this decision has been consistently followed by this Court. It is well established that an interim mandatory injunction is not a remedy that is easily granted. It is an order that is passed only in circumstances which are clear and the prima facie material clearly justify a finding that the status quo has been altered by one of the parties to the litigation and the interests of justice demanded that the status quo ante be restored by way of an interim mandatory injunction. (See Metro Marins and Another Versus Bonus Watch Co. (P) Ltd. and Others3, Kishore Kumar Khaitan and Another Versus Praveen Kumar Singh4 and Purshottam Vishandas Raheja and Another Versus Shrichand Vishandas Raheja (Dead) through LRS. and Others5)

27. In the factual scenario in which mandatory order has been passed against the appellant, in our opinion, is in excess of jurisdiction. Such a drastic order at an interlocutory stage ought to be eschewed. 

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 7079 OF 2018

(Arising out of SLP (Civil) No.18465/2018)

Samir Narain Bhojwani Vs M/s. Aurora Properties and Investments

and Anr.

Dated:August 21, 2018.

A.M. Khanwilkar J,
Citation:  2018 (5) Bom.C.R. 731 : 2018 (5) RAJ 243 : 2018 (10) Scale 33 

Print Page

Whether court should frame charge against accused if prima facie case is made out against accused?

At the outset it would be pertinent to note the law concerning the framing of charges and the standard which courts must apply while framing charges. It is well settled that a court while framing charges Under Section 227 of the Code of Criminal Procedure should apply the prima facie standard. Although the application of this standard depends on facts and circumstance in each case, a prima facie case against the Accused is said to be made out when the probative value of the evidence on all the essential elements in the charge taken as a whole is such that it is sufficient to induce the court to believe in the existence of the facts pertaining to such essential elements or to consider its existence so probable that a prudent man ought to act upon the supposition that those facts existed or did happen. However, at this stage, there cannot be a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial. 

IN THE SUPREME COURT OF INDIA

Criminal Appeal Nos. 315, 314, 313, 312 and 311/2011

Decided On: 17.01.2018

 Mauvin Godinho  Vs. State of Goa

Hon'ble Judges/Coram:

N.V. Ramana and S. Abdul Nazeer, JJ.

Citation: (2018) 3 SCC 358

Print Page

Basic principles to be followed by court while deciding application for temporary injunction

Grant or refusal of an injunction

86. Grant or refusal of an injunction in a civil suit is the most important stage in the civil trial. Due care, caution, diligence and attention must be bestowed by the judicial officers and judges while granting or refusing injunction. In most cases, the fate of the case is decided by grant or refusal of an injunction. Experience has shown that once an injunction is granted, getting it vacated would become a nightmare for the Defendant. In order to grant or refuse injunction, the judicial officer or the judge must carefully examine the entire pleadings and documents with utmost care and seriousness.

87. The safe and better course is to give short notice on injunction application and pass an appropriate order after hearing both the sides. In case of grave urgency, if it becomes imperative to grant an ex-parte ad interim injunction, it should be granted for a specified period, such as, for two weeks. In those cases, the Plaintiff will have no inherent interest in delaying disposal of injunction application after obtaining an ex-parte ad interim injunction. The Court, in order to avoid abuse of the process of law may also record in the injunction order that if the suit is eventually dismissed, the Plaintiff undertakes to pay restitution, actual or realistic costs. While passing the order, the Court must take into consideration the pragmatic realities and pass proper order for mesne profits. The Court must make serious endeavour to ensure that even-handed justice is given to both the parties.

88. Ordinarily, three main principles govern the grant or refusal of injunction.

a) prima facie case;

b) balance of convenience; and

c) irreparable injury, which guide the Court in this regard.

89. In the broad category of prima facie case, it is imperative for the Court to carefully analyse the pleadings and the documents on record and only on that basis the Court must be governed by the prima facie case. In grant and refusal of injunction, pleadings and documents play vital role.

IN THE SUPREME COURT OF INDIA

Appeal No. 2968 of 2012 (Arising out of SLP (C) No. 15382 of 2009)

Decided On: 21.03.2012

Maria Margarida Sequeria Fernandes and Ors. Vs. Erasmo Jack de Sequeria (Dead) through L. Rs.

Print Page

Whether prima facie case can be made out against accused on basis of material other than complaint?

Looking into the allegations made in the complaint, so far as assault on the deceased is concerned, there is an averment that the petitioner assaulted the deceased on her right cheek/neck. It is no doubt true that in the complaint, there is no mention that the petitioner assaulted the deceased with a stone. But complaint is not an encyclopedia. Looking to the statement of eyewitness Smt. Sumithra W/o Sanadi, she has clearly stated in her statement that the present petitioner assaulted the deceased with a stone, then she fell down unconscious.

8. I have also perused the medical opinion given by the doctor regarding the cause of death. Considering these materials placed on record, I am of the opinion that prosecution has placed prima facie material so far as the involvement of the present petitioner in committing the alleged offence. Therefore, it is not a fit case to exercise discretion in favour of the petitioner.

In the High Court of Karnataka at Bengaluru

(Before Budihal R.B., J.)

Balaraj S/o Hurdayaraj Chinnappa,v. The State, 

Criminal Petition No. 5331 of 2017

Decided on October 9, 2017

Citation: 2017 SCC OnLine Kar 2451

Print Page

Whether interim order can be treated as precedent?

In Kapila Hingorani (I) v. State of Bihar, MANU/SC/0403/2003 : (2003) 6 SCC 1, the apex Court while dealing with meaning of "precedent" has held as follows:

"A precedent is a judicial decision containing a principle, which forms an authoritative element termed as ratio decidendi. An interim order which does not finally and conclusively decide an issue cannot be a precedent. Any reasons assigned in support of such non-final interim order containing prima facie findings, are only tentative. Any interim directions issued on the basis of such prima facie findings are temporary arrangements to preserve the status quo till the matter is finally decided, to ensure that the matter does not become either in-fructuous or a fait accompli before the final hearing."

Similar view has also been taken by the apex court in State of Assam v. Barak Upatyaka D.U. Karmachari Sanstha, MANU/SC/0387/2009 : (2009) 5 SCC 694 wherein, it is further clarified that an interim order cannot be said to be a precedent. The interim directions issued on the basis of prima facie findings, are temporary arrangements to preserve the status quo, to ensure that the matter does not become either infructuous or a fait accompli before final hearing. This being the position, while vacating the interim order, no decision has been rendered by the Larger Bench of this Court, thereby the order so passed cannot be taken into consideration as no ratio decidendi to characterise as precedent for the present case.

IN THE HIGH COURT OF ORISSA AT CUTTACK

W.P.(C) Nos. 11817 and 12427 of 2016

Decided On: 13.01.2017

 Mohapatra Binders and Ors. Vs. State of Odisha and Ors.

Hon'ble Judges/Coram:

Vineet Saran, C.J., Dr. Akshaya Kumar Rath and Dr. B.R. Sarangi, JJ.

Citation: AIR 2017(NOC) 205 Orissa

Print Page

How to ascertain jurisdiction of court in case of misappropriation of streedhan property?

When the legislature in its wisdom has given such

a right by amending Section 181 (4) of the Code in the year 1978 the

judicial authority cannot deprive a citizen of India such advantage

acquired by law on the ground that it may be misused.

Section 181(4) of the Code runs thus:

“Any offence of criminal misappropriation or of criminal breach of

trust may be inquired into or tried by a Court within whose local

jurisdiction the offence was committed or any part of the property which is

the subject of the offence was received or retained, or was required to be

returned or accounted for, by the accused person.” (emphasis supplied

by me)

This Court wants to emphasize on the word ‘or was required to be

returned or accounted for, by the accused person’. It is true that as per

claim of the de facto complainant the dowry was paid at Siliguri and as perFIR when the victim opposite party was driven out from her matrimonial

abode she claimed her ‘Stridhan’ articles including her certificates but

those were not given to her and as such this Court is satisfied that there is

prima facie case under Section 406 of the Indian Penal Code.

It is the admitted position that at present this opposite party wife is

residing at her father’s house at Lilua, Howrah. Thus, if the articles are to

be returned after the conclusion of the trial the venue of such return must

be either the court at Howrah or the residence of the de facto complainant,

the victim of this case. Thus, this Court is satisfied that interest of justice

demands that in this scenario the protection must be given to the deserted

lady by applying Section 181 (4) of the Code. The legislature in its wisdom

amended that sub-section and if such advantage has been given to the wife

or the de facto complainant why should the court will take out that

advantage from her mouth. Her entitlement as per law should not be taken

out in the disguise that such sub-section may be used just to oppress her

counterpart.

Thus, in view of the discussion so long made this court is satisfied

that there is enough of material to go for trial even against the petitioners.

This court is also satisfied that in view of Section 181 (4) of the Cr.P.C, the

Chief Judicial Magistrate, Howrah has perfect jurisdiction over the case.Thus, this application under Section 482 of the Code of Criminal

Procedure, 1973 is answered in the negative and dismissed accordingly.

IN THE HIGH COURT AT CALCUTTA

CRIMINAL REVISIONAL JURISDICTION

Present :  Justice Indrajit Chatterjee

C.R.R. 1529 of 2014

Ashok Kumar Marda & Ors.

V

State of West Bengal & Anr.

Judgment on : 06.10.2016.

Citation: 2017 CRLJ 73

Print Page

Leading judgment on prima facie case for grant of injunction

How prima facie case is to be judged is laid down in the case of K. Karunanidhi v. R. Renganathan, , wherein it observed thus:

"The rule that before the issue of a temporary injunction, the Court must satisfy itself that the plaintiff has a prima facie case, does not mean that the Court should examine the merits of the case closely and come to a conclusion that the plaintiff has a case in which he is likely to succeed. This would amount to prejudging the case on its merits. All that the Court has to see is that on the face of it the person applying for an injunction has a case which needs consideration and which is not bound to fail by virtue of some apparent defects. The balance of convenience also has to be looked into."

What do you mean by prima facie case is laid down by the Apex Court in the case of Martin Burn Ltd. v. R. N. Banerjee, whereinit has been observed as under:

". . . . . While determining whether a prima facie case had been made out the relevant consideration is whether on the evidence let it was possible to arrive at the conclusion in question and not whether that was the only conclusion which could be arrived at on that evidence. It may be that the Tribunal considering this question may itself have arrived at a different conclusion. It has, however, not to substitute its own judgment for the judgment in question. It has only got to consider whether the view taken is a possible view on the evidence on the record."

Bombay High Court

Shri Dashrath Sahadeo Khade vs The Municipal Corporation Of ... on 27 July, 2004

Equivalent citations: 2005 (1) BomCR 334, 2005 (1) MhLj 413

Bench:  V.C. Daga, J.

Print Page

Leading Supreme Court judgment on grant of Temporary Mandatory Injunction

The relief of interlocutory mandatory injunctions are thus granted generally to preserve or restore the status quo of the last non-contested status which preceded the pending controversy until the final hearing when full relief may be granted or to compel the undoing of those acts that have been illegally done or the restoration of that which was wrongfully taken from the party complaining. But since the granting of such an injunction to a party who fails or would fail to establish his right at the trial may cause great injustice or irreparable harm to the party against whom it was granted or alternatively not granting of it to a party who succeeds or would succeed may equally cause great injustice or irreparable harm, courts have evolved certain guideline. Generally stated these guidelines are:

(1) The plaintiff has a strong case for trial. That is, it shall be of a higher standard than a prima facie case that is normally required for a prohibitory injunction.

(2) It is necessary to prevent irreparable or serious injury which normally cannot be compensated in terms of money.

(3) The balance of convenience is in favour of the one seeking such relief.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 2422 of 1989

Decided On: 13.02.1990

Dorab Cawasji Warden  Vs. Coomi Sorab Warden and others

Hon'ble Judges/Coram:

L.M. Sharma and V. Ramaswami, JJ.

Equivalent citations: 1990 AIR 867, 1990 SCR (1) 332

Print Page

What is meaning of "prima facie case" for grant of temporary injunction?

 Once, it is found that at this stage prima facie evidence exists regarding the agreement dated 07/11/2012, although this inference is liable to be upset, if evidence in rebuttal is adduced by the respondent, making out of existence of prima facie case by the appellant would be a logical conclusion Therefore, I find that the appellant has established existence of prima facie case in her favour. It is well settled law that by the expression, "prima facie" what is meant is that there is some reasonably good arguable case, which would require trial on merits. I would like to draw support in this regard from the observations of Hon'ble Apex Court made in the case of Videsh Sanchar Nigam Ltd. Vs. M. V. Kapitan reported in 1996 (7) SCC 127.

Bombay High Court

Smt. Vidyavati W/O Rampal Shahu ... vs Smt. Sangita W/O Mahesh Talmale on 11 November, 2014

Bench: S.B. Shukre

APPEAL AGAINST ORDER NO. 128 OF 2014

Citation:2015(2) MHLJ660

Print Page

Whether court can reject application for temporary injunction even though prima facie case is in favour of plaintiff?

Yet, the settled principle of law is that even where prima facie case is in favour of the plaintiff, the Court will refuse temporary injunction if the injury suffered by the plaintiff on account of refusal of temporary injunction was not irreparable. In Dalpat Kumar & Anr. v. Prahlad Singh & Ors. [(1992) 1 SCC 719] this Court held:

“Satisfaction that there is a prima facie case by itself is not sufficient to grant injunction. The Court further has to satisfy that non-interference by the Court would result in “irreparable injury” to the party seeking relief and that there is no other remedy available to the party except one to grant injunction and he needs protection from the consequences of apprehended injury or dispossession. Irreparable injury, however, does not mean that there must be no physical possibility of repairing the injury, but means only that the injury must be a material one, namely, one that cannot be adequately compensated by way of damages.”

Reportable 

Supreme Court of India

M/S Best Sellers Retail(I)P.Ltd vs M/S Aditya Birla Nuvo Ltd.& Ors on 8 May, 2012

Bench: A.K. Patnaik, Swatanter Kumar

Citation:AIR 2012 SC 2448
 CIVIL APPEAL Nos. 4313-4314 OF 2012

Arising out of SLP (C) Nos. 34627-34628 OF 2010)

Print Page

What are “three pillars” on which foundation of every order of injunction rests?

 However, the law that is well settled is also that to sustain validly a claim for temporary injunction, it is not only that plaintiff has to establish his prima facie case, but he has to also establish further that balance of convenience lay in his favour and that he would suffer irreparable injury if the temporary injunction prayed was not granted. That was said by this Court in Shankarlal Rathore (supra) as also in a Bench decision of this Court in Durg Transport Company, AIR 1965 Madh Pra 142 which also Shri Kaushik cited to support the impugned order. In the last mentioned ease, it was held that temporary injunction "is never granted to establish a new state of things differently from the state which existed at the date when the proceedings were initiated". No doubt that this requirement is relatable to the finding of balance of convenience to be made by the Court in considering any prayer for temporary injunction. I had also an occasion to stress the primacy of the inexorable Rule that the three prerequisites must coexist and must precede an order of temporary injunction to validate exercise of jurisdiction by the Court concerned on the finding reached on the question of prima facie case, balance of convenience and irreparable injury. (See Saidur Rahman v. Stale of Assam, (1985) 1 Gauhati LR 438. In the case of Rajkumar Sanahal Singh, AIR 1985 Gauh 71, I look the view that in considering the question of balance of convenience, the Court has to consider the comparative mischief or inconvenience of both the parties and that the plaintiff who wants an order of injunction will further have to satisfy the Court that he will suffer irreparable injury if injunction is not issued. Very pertinently, it was further held that it was the nature of the injury which determined the balance of convenience.

Madhya Pradesh High Court

Ganpatlal vs Nandlal Haswani And Ors. on 12 September, 1988

Equivalent citations: AIR 1989 MP 209, 1990 (0) MPLJ 542

Bench: T Singh

Print Page

What is meaning of prima facie case?

In

Martin Burn’s case (supra) this court stated:

 “A prima facie case does not mean a case

proved to the hilt but a case which can be

said to be established if the evidence which

is led in support of the same were believed.

While determining whether a prima facie

case had been made out the relevant

consideration is whether on the evidence led

it was possible to arrive at the conclusion in

question and not whether that was the only

conclusion which could be arrived at on that

evidence. It may be that the Tribunal

considering this question may itself have

arrived at a different conclusion. It has,

however, not to substitute its own judgment

for the judgment in question. It has only got

to consider whether the view taken is a

possible view on the evidence on the record.

(See Buckingham & Carnatic Co. Ltd. Vs ThePage 12

12

Workers of the Company (1952) Lab. AC 490

(F).””

(emphasis supplied)

(REPORTABLE)

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL Nos. 6765-66/2014

The Management of TNSTC (Coimbatore) Ltd. 

Versus

M. Chandrasekaran .

Dated:September 2, 2016

A.M. KHANWILKAR, J.

Print Page