Income cannot be disclosed under RTI

The Central Information Commission (CIC) has upheld an order rejecting an RTI application seeking details of income tax returns of a person on the ground that the disclosure would cause unwarranted invasion to the privacy of the assessee…

https://drive.google.com/open?id=0B-JZGIVy-RW5NW1GNklCUHFaR3c

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Client gets kicked by a lawyer for demanding money refund !!! πŸ˜³πŸ˜³

http://www.timesnownews.com/india/article/shocking-lawyers-rough-up-client-publicly-outside-court/93511

A lawyer at the Rampur ( UP) Court keep his client for demanding money refund !! The shocking incident was captured on camera

Whether principles of res judicata are applicable to interlocutory orders?

Whether principles of res judicata are applicable to interlocutory orders?

In Arjun Singh v. Mohindra Kumar10, Supreme Court elaborately discussed how interlocutory orders attain finality and, consequently, how the principle of res judicata applies to them. Arjun Singh classifies the interlocutory orders into three types: (a) orders like staying proceedings, injuncting parties, appointing receivers; (b) orders like restoring proceedings, as under Order 9, Rule 7 of CPC; (c) orders like those that cannot be reopened or reconsidered unless fresh facts emerge.

  1. Type (a) orders preserve the status quo pending the litigation and ensure that the parties are not prejudiced by the procedural delays. They do not, in that sense, decide the merits of the controversy in issue. On the other hand, the dismissal of petitions resulting in type (b) orders does not preclude the aggrieved person to challenge them in the appeal taken against the final decree and judgment. In that sense, the trial court’s refusal β€œto permit the defendant to β€˜set the clock back’ does not attain finality. Indeed, Section 105 of CPC statutorily acknowledges this position.
  2. Type (c) orders concern those that bind the β€˜same’ court at later stages, precluding it from reconsidering the decision. Arjun Singh observes that β€œ[e]ven if the rule of res judicata does not apply, it would not follow that on every subsequent day which the suit stands adjourned for further hearing, the petition could be repeated and fresh orders sought on the basis of identical facts.” Arjun Singh says illustratively that β€œif an application for the adjournment of a suit is rejected, a subsequent application for the same purpose, even if based on the same facts, is not barred on the application of any rule of res judicata, but would be rejected for the same grounds on which the original application was refused.”

  3. Here Arjun Singh felicitously distinguishes between estoppel and rejection for lacking new material: if the principle of res judicata is applicable to the decision on a particular issue of fact, even if fresh facts were placed before the Court, the bar would continue to operate and preclude a fresh investigation of the issue; whereas in the other case, on proof of fresh facts, the court would be competent, and may be bound, to take those into account and order conformably with the facts freshly brought before the court.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 768 of 1963

Decided On: 13.12.1963

Arjun Singh Vs. Mohindra Kumar and Ors.

Hon’ble Judges/Coram:

B.P. Sinha, C.J., A.K. Sarkar and N. Rajagopala Ayyangar, JJ.

Citation:AIR 1964 SC 993

  1. This is an appeal by special leave filed by a defendant whose application under O. IX, r. 13, Civil Procedure Code to set aside an ex parte decree passed against him has been dismissed as barred by res judicata.
  • To appreciate the points arising in the appeal it would be necessary to narrate the proceedings in three litigations between the parties. The ex parte decree that was passed against the defendant – who will hereafter be referred to as the appellant – and which he sought to be set aside in the proceedings which are the subject of the present appeal, was in Suit 134 of 1956 on the file of the Court of Second Civil Judge, Kanpur. But long before this suit was filed, the two other proceedings were already pending. The first of them was a Small Cause suit by one Phula Kuer who sought to recover from the appellant Rs. 750 on the basis that she and the appellant were partners and by an arrangement between them he agreed to pay her Rs. 150 per month for her share of the profits which he had failed to pay. This was suit 1023 of 1951 on the file of the Small Cause Court, Kanpur. The appellant entered on his defence and denied the partnership and his liability to pay the sum claimed. While this suit was pending, the appellant in his turn filed suit No. 20 of 1953 against Phula Kuer for fixing the fair rent of the premises in which he was carrying on the business, which Phula Kuer alleged was a partnership business, it being common ground that Phula Kuer was the owner thereof. While these two suits were pending Phula Kuer died on July 13, 1953 and thereafter one Rup Chand Jain filed suit 134 of 1956 already referred to. Rup Chand Jain died pending the appeal in the High Court and is now represented by his heirs who have been brought on record. It would however be convenient to refer to the respondents as the plaintiff.

  • Suit 134 of 1956 which was filed on May 19, 1956 repeated the allegation that Phula Kuer had entered into the partnership with the appellant under which she was entitled to get for her share Rs. 150 per month. This share of profits, it was alleged, had been paid to her up to October 14, 1950 and that thereafter the appellant failed to pay the same. The plaintiff claimed to be the next reversioner of Phula Kuer and on that basis claimed that a sum of Rs. 4,200 was due to him. Besides this, he alleged that the appellant had been using the building belonging to Phula Kuer in regard to which he was liable to pay rent which was claimed at Rs. 150 per mensem. The plaintiff also claimed that he was entitled to evict the appellant from the premises. In the result, the reliefs claimed in the suit were a money-decree for Rs. 9,390 on account of the items we have set out, and (2) eviction from the premises where the business was being carried on. Having regard to the contentions of the parties in the three suits, all of them were transferred by the District Judge, to the court of the Second Civil Judge, Kanpur on August 4, 1956, and on August 23, 1956 the Civil Judge passed an order directing that the suits 20 of 1953 and 134 of 1956 be consolidated for joint hearing, the evidence led in Suit 134 of 1956 being treated as evidence in the other suit as well. On October 10, 1956 the appellant filed his written statement to Suit 134 of 1956 in which he put forward the case which he had already been asserting viz., (1) absence of any partnership relationship between himself and Phula Kuer, and (2) that he was in possession as a tenant and could not be evicted because the requisite statutory conditions to enable the plaintiff to claim eviction, were not satisfied. Needles to add that there were several other defences which he urged to which it is unnecessary to refer. Thereafter there were questions raised as regards the adequacy of the court-fee paid by the plaintiff in Suit 134 of 1956, applications by the plaintiff to amend the plaint etc. These took place during the year 1957. The issues were settled on February 28, 1958. We can pass over what transpired in the early part of 1958. Both the parties were attempting to effect a compromise and for that purpose the hearing was adjourned but the compromise was not finalised, and finally, on May 24, 1958 a joint application was made by the plaintiff and the appellant that two months’ time may be granted to them to arrive at a settlement and that the trial which was fixed for May 28, 1958 may be adjourned for that purpose. The court, however, refused this application for the reason that the suit for the fixation of rent was of the year 1953. On the 28th there was again another application for adjournment and the court adjourned the trial by one day and fixed it for May 29, 1958, the order stating “If no compromise is filed the case would be taken up for final hearing”. On 29th the plaintiff was present but the appellant was absent and the letters counsel who was present reported that they had no instructions to conduct the case. Thereupon the court passed an order in Suit 134 of 1956 in these terms :

  • “The plaintiff is present. Defendant is absent. Counsel for the defendants have no instructions. Case proceeds ex parte. Plaintiff examined Mohindra Kumar and closed.”

    1. The order concluded with the words “Judgment reserved”. In the suit for the fixation of rent which was taken up for trial on the same date the order of the court ran :

    “Plaintiff is absent. Defendant with his Counsel is present. Counsel for the plaintiff has no instructions. Suit is dismissed as per orders passed separately.”

    1. It is only necessary to add that the third suit – 1023 of 1951 – was on the same day also decreed ex parte.
  • On May 31, 1958 the appellant filed three applications in the three suits for setting aside the ex parte orders passed against him. The application in Suit 134 of 1956 was treated as the primary one and in support of it an affidavit was filed in which the appellant stated that after the talks for compromise had reached a decisive stage and when the appellant was making arrangements to implement that decision he got an attack of heat-stroke and was, therefore, unable to be present in Court when the case was called on the 29th – i.e. the day fixed for hearing. He, therefore, prayed that the order or direction to proceed ex parte passed against him in the two suits in which he was defendant may be set aside and he be given an opportunity to contest the suits. Needless to add that in suit 20 of 1953 which had been dismissed for default, the prayer was to set aside that dismissal. Notices were issued on these applications and the plaintiff filed a counter-affidavit in which he disputed the truth of the statement regarding the appellant’s illness and prayed that the applications may be dismissed. He also suggested that if they were to be ordered it should be on certain terms. We should mention even at this stage that though the application filed on the 31st did not specify the particular provision of law under which the jurisdiction of the Court was invoked, the parties and the court proceeded on the basis that in relation to suits 1023 of 1951 and 134 of 1956 they were applications under O. IX, r. 7 of the Civil Procedure Code. So far as the other proceeding was concerned – O.S. 20 of 1953 – it was undoubtedly an application for setting aside the dismissal of the plaintiff’s suit for default and was filed under O. IX, r. 9 These three applications were disposed of by a common judgment of the Civil Judge on August 23, 1958 and the learned Civil Judge held that the story of the illness of the appellant which had been put forward as affording sufficient reason for not being present in court on May 29, 1958 was false. For this reason he refused to set aside the order dismissing the suit for default of suit 20 of 1953 in which judgment had already been delivered. In the other two suits 1023 of 1951 and 134 of 1956 he ordered the direction for the reservation of judgments to stand and fixed August 25, 1958 for the delivery of the judgments.

  • The appellant thereupon moved the High Court of Allahabad in revision against the order passed against the refusal of his application in suit 134 of 1956 alone and apparently obtained a stay of delivery of the judgment. This application was disposed of by the High Court on September 4, 1958 when the following order was passed :

  • “It is conceded that no ex parte decree has yet been passed. The only order passed is that the case shall proceed ex parte against the appellant. In view of the fact that no decree has yet been passed, the setting aside of the ex parte order was not absolutely necessary.”

    1. After referring to the decision of this Court in Sangram Singh v. Election Tribunal MANU/SC/0044/1955 : [1955]2SCR1 the learned Judge added :

    “It follows that, even though the ex parte order had been passed, the applicant could appear and take part in the case from the stage at which the ex parte order had been passed. The only thing he could not claim was to be relegated back to the old position as if he had not absented himself on the date fixed. In these circumstances, I think, no interference is called for with the order of the learned Civil Judge refusing to set aside the ex parte order. It will be open to the applicant to present himself on the date to which the case now stands adjourned and request the learned Civil Judge to allow him to participate in the proceedings from that state.

    There is therefore no force in this application. It is rejected.”

    1. We are making this extract from the order for emphasising the fact that it appears to have been the common case before the High Court that the application of the appellant in Suit 134 of 1956 was under O. IX, r. 7 of the Civil Procedure Code and it was on that basis that the High Court approached the question and decided the revision petition.
  • Within 4 days of this order of the High Court and obviously acting in pursuance of the direction of the learned Judge the appellant made an application to the Civil Judge drawing his attention to the observations we have quoted and prayed :

  • “That your Honour be pleased to hear the application and take the evidence of the applicant.”

    1. Applications of the same type were filed in the other suit – 1023 of 1951 – also. He dismissed the applications for the reason that since the appellant’s prayer for being relegated to the original position had been rejected by him and also by the High Court in revision, it must be taken to have been finally settled that the appellant could not lead evidence because the final hearing of the two suits was over. The only proceeding in which the appellant could participate was in hearing the judgment and therefore, he added, “the applicant is now entitled only to hear the judgment”. On the same say – September 25, 1958 – the judgment which had already been prepared was delivered. The judgment read :

    “Both the suits are decreed with costs ex parte with interest at 6% etc.”

    1. To set aside this ex parte decree thus passed against him on September 25, 1958 the defendant filed an application under O. IX, r. 13. Obviously, the factual ground upon which the relief was sought, viz., that there was reasonable or sufficient cause for the appellant’s absence from Court on May 29, 1958 was the same as had been set out by him in the application which he had filed on May 31, 1958. This was opposed by the plaintiff who, besides repeating the challenge regarding the truth of the illness, raised three legal objections of a preliminary nature. Some of these have been upheld by the Civil Judge and the High Court but each one of them was sought to be supported before us by Mr. Pathak for the respondents. They were : (1) that the finding recorded in the earlier application filed on May 31, 1958 in suit 134 of 1956 that there was not sufficient cause for non-appearance on May 29, 1958 operated as res judicata in the petition filed under O. IX, r. 13 and was a bar to the re-inquiry of the same question on the merits; (2) the finding in the application to set aside the dismissal for default of suit 20 of 1953 which had become final operated was a bar to the trial of the same question in the application under O. IX, r. 13 in suit 134 of 1956; and (3) that the decree in suit 134 of 1956 was not in reality an ex parte decree but was a decree on the merits within O. XVII, r. 3, Civil Procedure Code and hence the remedy of the appellant was only by way of an appeal against the decree and he could not come in by way of an application under O. IX, r. 13. The learned Civil Judge upheld the first preliminary ground of objection and dismissed the application. The appellant thereupon filed an appeal to the High Court and the learned Judges likewise held that any inquiry into the question whether the appellant had sufficient cause for non-appearance on May 29, 1958 was barred by res judicata by reason of the decision of the same matter in the earlier proceeding under O. IX, r. 7. It is from this judgment of the High Court that the present appeal has been brought by special leave under Art. 136 of the Constitution.
  • Before proceeding to deal with the arguments addressed to us by Mr. Setalvad – learned counsel for the appellant, it would be convenient to mention a point, not seriously pressed before us, but which at earlier stages was thought to have considerable significance for the decision of this question viz., the difference between the words “good cause” for non-appearance in O. IX, r. 7 and “sufficient cause” for the same purpose in O. IX, r. 13 as pointing to different criteria of “goodness” or “sufficiency” for succeeding in the two proceedings, and as therefore furnishing a ground for the inapplicability of the rule of res judicata. As this ground was not seriously mentioned before us, we need not examine it in any detail, but we might observe that we do not see any material difference between the facts to be established for satisfying the two tests of “good cause” and “sufficient cause”. We are unable to conceive of a “good cause” which is not “sufficient” as affording an explanation for non-appearance, nor conversely of a “sufficient cause” which is not a good one and we would add that either of these is not different from “good and sufficient cause” which is used in this context in other statutes. If, on the other hand, there is any difference between the two it can only be that the requirement of a “good cause” is complied with on a lesser degree of proof than that of “sufficient cause” and if so, this cannot help the appellant, since assuming the applicability of the principle of res judicata to the decisions in the two proceedings, if the court finds in the first proceeding, the lighter burden not discharged, it must a fortiori bar the consideration of the same matter in the later, where the standard of proof of that matter is, if anything, higher.

  • As it is the first of the preliminary objections which we have set out earlier that has formed the basis of the decision against the appellant, both by the learned Civil Judge as well as by the High Court, we shall first take that up for consideration. The courts below have approached this question in this form. Order IX, r. 7 reads :

  • “7. Where the Court has adjourned the hearing of the suit ex parte, and the defendant, at or before such hearing, appears and assigns good cause for his previous non-appearance, he may, upon such terms as the Court directs as to costs, or otherwise, be heard in answer to the suit as if he had appeared on the day fixed for his appearance.”

    1. If an application is made under this provision and the Court considers that there is not any good cause for the previous non-appearance and proceeds further with the suit and ultimately it results in an ex parte decree, can the Court in dealing with the application to set aside the ex parte decree under O. IX, r. 13 reconsider the question as to whether the defendant had a sufficient cause for non-appearance on the day in regard to which the application under O. IX, r. 7 had been filed ?
  • That the question of fact which arose in the two proceedings was identical would not be in doubt. Of course, they were not in successive suits so as to make the provisions of s. 11 of the Civil Procedure Code applicable in terms. That the scope of the principle of res judicata is not confined to what is contained in s. 11 but is of more general application is also not in dispute. Again, res judicata could be as much applicable to different stages of the same suit as to findings on issues in different suits. In this connection we were referred to what this Court said in Satyadhyan Ghosal v. Sm. Deorajin Debi MANU/SC/0295/1960 : [1960]3SCR590 where Das Gupta, J. speaking for the Court expressed himself thus :

  • “The principle of res judicata is based on the need of giving a finality to judicial decisions. What it says is that once a res is judicata, it shall not be adjudged again. Primarily it applies as between past litigation and future litigation. When a matter – whether on a question of fact or on a question of law – has been decided between two parties in one suit or proceeding and the decision is final, either because no appeal was taken to a higher court or because the appeal was dismissed, or no appeal lies, neither party will be allowed in a future suit or proceeding between the same parties to canvass the matter again………………………. The principle of res judicata applies also as between two stages in the same litigation to this extent that a court, whether the trial court or a higher court having at an earlier stage decided a matter in one way will not allow the parties to re-agitate the matter again at a subsequent stage of the same proceedings.”

    1. Mr. Pathak laid great stress on this passage as supporting him in the two submissions that he made : (1) that an issue of fact or law decided even in an interlocutory proceeding could operate as res judicata in a later proceeding, and (2) that in order to attract the principle of res judicata the order or decision first rendered and which is pleaded as res judicata need not be capable of being appealed against.
  • We agree that generally speaking these propositions are not open to objection. If the court which rendered the first decision was competent to entertain the suit or other proceeding, and had therefore competency to decide the issue or matter, the circumstance that it is a tribunal of exclusive jurisdiction or one from whose decision no appeal lay would not by themselves negative the finding on the issue by it being res judicata in later proceedings. Similarly, as stated already, though s. 11 of the Civil Procedure Code clearly contemplates the existence of two suits and the findings in the first being res judicata in the later suit, it is well-established that the principle underlying it is equally applicable to the case of decisions rendered at successive stages of the same suit or proceeding. But where the principle of res judicata is invoked in the case of the different stages of proceedings in the same suit, the nature of the proceedings, the scope of the enquiry which the adjectival law provides for the decision being reached, as well as the specific provisions made on matters touching such decision are some of the material and relevant factors to be considered before the principle is held applicable. One aspect of this question is that which is dealt with in a provision like s. 105 of the Civil Procedure Code which enacts :

  • “105. (1) Save as otherwise expressly provided, no appeal shall lie from any order made by a Court in the exercise of its original or appellate jurisdiction; but, where a decree is appealed from, any error, defect or irregularity in any order, affecting the decision of the case, may be set forth as a ground of objection in the memorandum of appeal.

    (2) Notwithstanding anything contained in sub-section (1), where any party aggrieved by an order of remand made after the commencement of this Code from which an appeal lies does not appeal therefrom, he shall thereafter be precluded from disputing its correctness.”

    1. It was this which was explained by Das Gupta, J. in Satyadhayan Ghosal’s case MANU/SC/0295/1960 : [1960]3SCR590 , already referred to :

    “Does this, however, mean that because at an earlier stage of the litigation a court has decided an interlocutory matter in one way and no appeal has been taken therefrom or no appeal did lie, a higher court cannot at a later stage of the same litigation consider the matter again ?………… It is clear therefore that an interlocutory order which had not been appealed from either because no appeal lay or even though an appeal lay an appeal was not taken could be challenged in an appeal from the final decree or order.”

    1. If the correctness of the order of the Civil Judge in disposing of the application filed by the appellant on May 31, 1958 were questioned in an appeal against the decree in the suit, these principles and the observations would have immediate relevance. But it is not as if the distinction here drawn between the type of interlocutory orders which attain finality and those that do not, is of no materiality in considering whether a particular interlocutory order is of a kind which would preclude the agitation of the same question before the same court in further stages of the same proceeding. Dealing with the decisions of the Privy Council in Ram Kirpal Shukul v. Rup Kuari 11 I.A. 37., Bani Ram Nanhu Mal (11 I.A. 181), and Hook v. Administrator-General of Bengal 48 I.A. 187 which are the leading cases in which the principle of res judicata was held applicable to different stages of the same proceedings, Das Gupta J. observed MANU/SC/0295/1960 : [1960]3SCR590 :

    “It will be noticed that in all these three cases, viz., Ram Kirpal Shukul’s case, Bani Ram’s case and Hook’s case, the previous decision which was found to be res judicata was part of a decree. Therefore though in form the later proceeding in which the question was sought to be raised again was a continuation of the previous proceeding, it was in substance, an independent subsequent proceeding. The decision of a dispute as regards execution it is hardly necessary to mention was a decree under the Code of Civil Procedure and so in Ram Kirpal’s case and Bani Ram’s case, such a decision being a decree really terminated the previous proceedings. The fact therefore that the Privy Council in Ram Kirpal Shukul’s case described Mr. Probyn’s order as an ‘interlocutory judgment’ does not justify the learned counsel’s contention that all kinds of interlocutory judgments not appealed from become res judicata, Interlocutory judgments which have the force of a decree must be distinguished from other interlocutory judgments which are a step towards the decision of the dispute between parties by way of a decree or a final order.”

    1. It is needless to point out that interlocutory orders are of various kinds; some like orders of stay, injunction or receiver are designed to preserve the status quo pending the litigation and to ensure that the parties might not be prejudiced by the normal delay which the proceedings before the court usually take. They do not, in that sense, decide in any manner the merits of the controversy in issue in the suit and do not, of course, put an end to it even in part. Such orders are certainly capable of being altered or varied by subsequent applications for the same relief, though normally only on proof of new facts or new situations which subsequently emerge. As they do not impinge upon the legal rights of parties to the litigation the principle of res judicata does not apply to the findings on which these orders are based, though if applications were made for relief on the same basis after the same has once been disposed of the court would be justified in rejecting the same as an abuse of the process of court. There are other orders which are also interlocutory, but would fall into a different category. The difference from the ones just now referred to lies in the fact that they are not directed to maintaining the status quo or to preserve the property pending the final adjudication, but are designed to ensure the just, smooth, orderly and expeditious disposal of the suit. They are interlocutory in the sense that they do not decide any matter in issue arising in the suit, nor put an end to the litigation. The case of an application under O. IX. r. 7 would be an illustration of this type. If an application made under the provisions of that rule is dismissed and an appeal were filed against the decree in the suit in which such application were made, there can be no doubt that the propriety of the order rejecting the reopening of the proceeding and the refusal to relegate the party to an earlier stage might be canvassed in the appeal and dealt with by the appellate court. In that sense, the refusal of the court to permit the defendant to “set the clock back” does not attain finality. But what we are concerned with is slightly different and that is whether the same Court is finally bound by that order at later stages, so as to preclude its being reconsidered. Even if the rule of res judicata does not apply it would not follow that on every subsequent day on which the suit stands adjourned for further hearing the petition could be repeated and fresh orders sought on the basis of identical facts. The principle that repeated applications based on the same facts and seeking the same reliefs might be disallowed by the court does not however necessarily rest on the principle or res judicata. Thus if an application for the adjournment of a suit is rejected, a subsequent application for the same purpose even if based on the same facts, is not barred on the application of any rule of res judicata, but would be rejected for the same grounds on which the original application was refused. The principle underlying the distinction between the rule of res judicata and a rejection on the ground that no new facts have been adduced to justify a different order is vital. If the principle of res judicata is applicable to the decision on a particular issue of fact, even if fresh facts were placed before the Court, the bar would continue to operate and preclude a fresh investigation of the issue, whereas in the other case, on proof of fresh facts, the court would be competent, and would be bound to take those into account and make an order conformably to the facts freshly brought before the court.
  • This leads us to the consideration of the nature of the court’s direction under O. IX, r. 7 the nature of that interlocutory proceeding-with a view to ascertain whether the decision of the Court under that provision decides anything finally so as to constitute the bar of res judicata when dealing with an application under O. IX, r. 13, Civil Procedure Code. To sum up the relevant facts, it is common ground that the suit – 134 of 1956 had passed the stages up to r. 5 of O. IX. Order IX, r. 6 applies to a case where a plaintiff appears and the defendant does not appear when the suit is called on for hearing. Order IX, rule 6 provides, to quote the material part :

  • “Where the plaintiff appears and the defendant does not appear when the suit is called on for hearing then –

    (a) if it is proved that the summons was duly served, the court may proceed ex parte; ……………………”

    1. This is the provision under which the Civil Judge purported to act on the 29th of May. And then comes O. IX, r. 7 which reads :

    “Where the Court has adjourned the hearing of the suit ex parte and the defendant, at or before such hearing, appears and assigns good cause for his previous non-appearance, he may, upon such terms as the Court directs as to costs or otherwise, be heard in answer to the suit as if he had appeared on the day fixed for his appearance.

    1. On that very date the court took evidence of the plaintiff and reserved judgment. In other words, the hearing had been completed and the only part of the case that remained thereafter was the pronouncing of the judgment. O. XX, r. 1 provides for this contingency and it reads :-

    “The Court, after the case has been heard, shall pronounce judgment in open Court, either at once or, as soon thereafter as may be practicable, on some future day; and when the judgment is to be pronounced on some future day, the Court shall fix a day for that purpose, of which due notice shall be given to the parties or their pleaders.

    1. Two days after the hearing was completed and judgment was reserved the defendant appeared and made the application purporting to be under O. IX, r. 7. And it is the dismissal of this application that has been held to constitute a bar to the hearing of the application under O. IX, r. 13 on the merits.
  • The scope of a proceeding under O. IX, r. 7 and its place in the scheme of the provisions of the Code relating to the trial of suits was the subject of consideration in Sangram Singh v. Election Tribunal MANU/SC/0044/1955 : [1955]2SCR1 . Dealing with the meaning of the words “The Court may proceed ex parte” in O. IX, r. 6(1)(a) Bose J. speaking for the Court said :

  • “When the defendant has been served and has been afforded an opportunity of appearing, then, if he does not appear, the Court may proceed in his absence. But, be it noted, the Court is not directed to make an ex parte order. Of course the fact that it is proceeding ex parte will be recorded in the minutes of its proceedings but that is merely a statement of the fact and is not an order made against the defendant in the sense of an ex parte decree or other ex parte order which the court is authorised to make. All that rule 6(1)(a) does is to remove a bar and no more. It merely authorises the Court to do that which it could not have done without this authority, namely to proceed in the absence of one of the parties.”

    1. Dealing next with the scheme of the Code, the learned Judge pointed out that the manner in which the Court could thereafter proceed i.e., after r. 6(1)(a) was passed would depend upon the purpose for which the suit stood adjourned, and proceeded :

    “If it is for final hearing, an ex parte decree can be passed, and if it is passed, then O. IX, r. 13 comes into play and before the decree is set aside the Court is required to make an order to set it aside. Contrast this with r. 7 which does not require the setting aside of what is commonly, though erroneously, known as ‘the ex parte order’. No order is contemplated by the Code and therefore no order to set aside the order is contemplated either.” (italics ours)

    1. And referring to the effect of the rejection of application made under O. XI, r. 7, he added :

    “If a party does appear on the day to which the hearing of the suit is adjourned, he cannot be stopped from participating in the proceedings simply because he did not appear on the first or some other hearing. But though he has the right to appear at an adjourned hearing, he has no right to set back the hands of the clock. Order IX. r. 7 makes that clear. Therefore, unless he can show good cause, he must accept all that has gone before and be content to proceed from the stage at which he comes in.”

    1. That being the effect of the proceedings, the question next arises what is the nature of the order if it can be called an order or the nature of the adjudication which the court makes under O. IX, r. 7. In its essence it is directed to ensure the orderly conduct of the proceedings by penalising improper dilatoriness calculated merely to prolong the litigation. It does not put an end to the litigation nor does it involve the determination of any issue in controversy in the suit. Besides, it is obvious that the proceeding is of a very summary nature and this is evident from the fact that as contrasted with O. IX, r. 9 or O. IX, r. 13, no appeal is provided against action of the court under O. IX, r. 7. “refusing to set back the clock”. It is, therefore, manifest that the Code proceeds upon the view of not imparting any finality to the determination of any issues of fact on which the court’s action under that provision is based. In this connection reference may be made to a decision of a Division Bench of the Madras High Court in Sankaralinga v. Ratnasabhapati I.L.R. 21 Mad. 324. The question arose on an appeal to the High Court by the defendants against whom an ex parte decree had been passed on March 30, 1895. Previous thereto they had put in petitions supported by affidavits under s. 101 of the Civil Procedure Code of 1882 corresponding of O. IX, r. 7. to set aside “an ex parte order,” accept their written statements, and proceed with the suit on the merits. The ground alleged for the relief sought was that they were not duly served with summons. This application was rejected by the Court. Thereafter, after an ex parte decree was passed, they again filed another application under s. 108 under the then code, corresponding to the present O. IX, r. 13. The ground put forward was again the same, namely that the summons was not properly served. The district Judge having dismissed the application under s. 108 (O. IX, r. 13), the defendants preferred an appeal to the High Court. On behalf of the plaintiffs-respondents the contention was raised by Mr. Bhashyam Ayyangar-learned Counsel-that the application to set aside the ex parte decree under s. 108 was incompetent because the same question has already been decided against the defendant when he filed the application under s. 101. The Court composed of Subramania Iyer & Benson JJ. said, “the contention at first sight may seem to be reasonable, but having regard to the very wide words ‘in any case’ used in s. 108 we are unable to hold that the defendant was not entitled to make an application under section 108. ” There have been other decisions in which a similar view has been held and though the provisions of the Code corresponding to O. IX, r. 7 and O. IX, r. 13 have been in force for over a century from 1859, there has not been a single case in which the plea of res judicata such as has been urged in the appeal before us has been upheld. On the other hand, we might point out that an exactly similar objection of res judicata was expressly raised and repelled in Bhaoo Patel v. Naroo 10 C.P.L.R. 45 in a decision rendered in 1896 in which reliance was placed on a case reported in 8 Cal. 272.

    2. In the circumstances we consider that a decision or direction in an interlocutory proceeding of the type provided for by O. IX, r. 7, is not of the kind which can operate as res judicata so as to bar the hearing on the merits of an application under O. IX, r. 13. The latter is a specific statutory remedy provided by the Code for the setting aside of ex parte decrees, and it is not without significance that under O. XLIII, r. 1(d) an appeal lies not against orders setting aside a decree passed ex parte but against orders rejecting such an application, unmistakably pointing to the policy of the Code being that subject to securing due diligence on the part of the parties to the suit, the Code as far as possible makes provision for decisions in suits after a hearing afforded to the parties.

    3. So far as the case before us is concerned the order under appeal cannot be sustained even on the basis that the finding recorded in disposing of an application under O. IX, r. 7 would operate as res judicata when the same question of fact is raised in a subsequent application to set aside an ex parte decree under O. IX, r. 13. This is because it is not disputed that in order to operate as res judicata, the court dealing with the first matter must have had jurisdiction and competency to entertain and decide the issue. Adverting to the facts of the present appeal, this would primarily turn upon the proper construction of the terms of O. IX, r. 7. The opening words of that rule are, as already seen, ‘Where the Court has adjourned the hearing of the suit ex parte’. Now, what do these words mean ? Obviously they assume that there is to be “a hearing” on the date to which the suit stands adjourned. If the entirety of the “hearing” of a suit has been completed and the Court being competent to pronounce judgment then and there, adjourns the suit merely for the purpose of pronouncing judgment under O. XX, r. 1, there is clearly no adjournment of “the hearing” of the suit, for there is nothing more to be heard in the suit. It was precisely this idea that was expressed by the learned Civil Judge when he stated that having regard to the stage which the suit had reached the only proceeding in which the appellant could participate was to bear the judgment pronounced and that on the terms of rules 6 & 7 he would permit him to do that. If, therefore, the hearing was completed and the suit was not “adjourned for hearing”, O. IX, r. 7 could have no application and the matter would stand at the stage of O. IX, r. 6 to be followed up by the passing of an ex parte decree making r. 13 the only provision in order IX applicable. If this were the correct position, it would automatically follow that the learned Civil Judge would have no jurisdiction to entertain the application dated May 31, 1958 purporting to be under O. IX, r. 7, or pass any order thereon on the merits. This in its turn would lead to the result that the application under O. IX, r. 13 was not only competent but had to be heard on the merits without reference to the findings contained in the previous order.

    4. Mr. Pathak while not disputing that if the application filed on May 31, 1958 was incompetent at the stage it was filed, the order passed by the Civil Judge would not bar the consideration on the merits of the later application to set aside the ex parte decree, sought to get over this obvious situation by a submission that even if O. IX, r. 7 was inapplicable the court had an inherent jurisdiction saved by s. 151 C.P. Code to entertain the application outside the specific statutory provision and that it must be taken that the appellant invoked that jurisdiction and that Court being thus competent to grant or refuse the relief followed the latter alternative in the circumstances of the case and that consequently the proceedings before the Court were not incompetent and that the order passed on the application dated May 31, 1958 was therefore with jurisdiction.

    5. On this submission, which we might mention has been urged for the first time in this court, the first question that arises is whether the Court has the inherent jurisdiction which learned counsel contends that it has. For the purpose of the discussion of the question in the context of the relevant provisions of the Code, it is unnecessary to embark on any detailed or exhaustive examination of the circumstances and situations in which it could be predicated that a Court has the inherent jurisdiction which is saved by s. 151 of the Civil Procedure Code. It is sufficient if we proceed on the accepted and admitted limitations to the existence of such a jurisdiction. It is common ground that the inherent power of the Court cannot override the express provisions of the law. In other words, if there are specific provisions of the Code dealing with a particular topic and they expressly or by necessary implication exhaust the scope of the powers of the Court or the jurisdiction that may be exercised in relation to a matter the inherent power of the Court cannot be invoked in order to cut across the powers conferred by the Code. The prohibition contained in the Code need not be express but may be implied or be implicit from the very nature of the provisions that it makes for covering the contingencies to which it relates. We shall confine our attention to the topic on hand, namely applications by defendants to set aside ex parte orders passed against them and reopen the proceedings which had been conducted in their absence. Order IX, r. 1 requires the parties to attend on the day fixed for their appearance to answer the claim of the defendant. Rule 2 deals with a case where the defendant is absent but the Court from its own record is apprised of the fact that the summons has not been duly served on the defendant in order to acquaint him with the proceedings before the Court. Rule 2 contains a proviso applicable to cases where notwithstanding the absence of service of summons, the defendant appears. Rule 3 deals with a case where the plaintiff alongwith the defendant is absent when the suit is called on and empowers the Court to dismiss the suit. Rule 5 deals with a case where the defendant is not served properly and there is default on the part of the plaintiff in having this done. Having thus exhausted the cases where the defendant is not properly served, r. 6(1)(a) enables the Court to proceed ex parte where the defendant is absent even after due service. Rule 6 contemplates two cases : (1) The day on which the defendant fails to appear is one of which the defendant has no intimation that the suit will be taken up for final hearing for example, where the hearing is only the first hearing of the suit, and (2) where the stage of the first hearing is passed and the hearing which is fixed is for the disposal of the suit and the defendant is not present on such a day. The effect of proceeding ex parte in the two sets of cases would obviously mean a great difference in the result. So far as the first type of cases is concerned it has to be adjourned for final disposal and, as already seen, it would be open to the defendant to appear on that date and defend the suit. In the second type of cases, however, one of two things might happen. The evidence of the plaintiff might be taken then and there and judgment might be pronounced. In that case O. IX, r. 13 would come in. The defendant can, besides filing an appeal or an application for review, have recourse to an application under O. IX, r. 13 to set aside the ex parte decree. The entirety of the evidence of the plaintiff might not be concluded on the hearing day on which the defendant is absent and something might remain so far as the trial of the suit is concerned for which purpose there might be a hearing on an adjourned date. On the terms of O. IX, r. 7 if the defendant appears on such adjourned date and satisfies the Court by showing good cause for his non-appearance on the previous day or days he might have the earlier proceedings recalled – “set the clock back” and have the suit heard in his presence. On the other hand, he might fail in showing good cause. EVen in such a case he is not penalised in the sense of being forbidden to take part in the further proceedings of the suit or whatever might still remain of the trial, only he cannot claim to be relegated to the position that he occupied at the commencement of the trial. Thus every contingency which is likely to happen in the trial vis-a-vis the non-appearance of the defendant at the hearing of a suit has been provided for and O. IX, r. 7 and O. IX, r. 13 between them exhaust the whole gamut of situations that might arise during the course of the trial. If, thus, provision has been made for every contingency, it stands to reason that there is no scope for the invocation of the inherent powers of the Court to make an order necessary for the ends of justice. Mr. Pathak however, strenuously contended that a case of the sort now on hand where a defendant appeared after the conclusion of the hearing but before the pronouncing of the judgment had not been provided for. We consider that the suggestion that there is such a stage is, on the scheme of the Code, wholly unrealistic. In the present context when once the hearing starts, the Code contemplates only two stages in the trial of the suit : (1) Where the hearing is adjourned or (2) where the hearing is completed. Where the hearing is completed the parties have no further rights or privileges in the matter and it is only for the convenience of the Court that O. XX, r. 1 permits judgment to be delivered after an interval after the hearing is completed. It would, therefore, follow that after the stage contemplated by O. IX, r. 7 is passed the next stage is only the passing of a decree which on the terms of O. IX, r. 6 the Court is competent to pass. And then follows the remedy of the party to have that decree set aside by application under O. IX, r. 13. There is thus no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to afford to the party the remedy of getting orders passed on the lines of O. IX, r. 7. We are, therefore, of the opinion that the Civil Judge was not competent to entertain the application dated May 31, 1958 purporting to be under O. IX, r. 7 and that consequently the reasons given in the order passed would not be res judicata to bar the hearing of the petition under O. IX, r. 13 filed by the appellant.

    6. There is one other aspect from which the same question could be viewed. O. IX, r. 7 prescribed the conditions subject to which alone an application competent under the opening words of that rule ought to be dealt with. Now, the submission of Mr. Pathak if accepted, would mean to ignore the opening words and say that though specific power is concerned when a suit is adjourned for hearing, the Court has an inherent power even when (a) it is not adjourned for that purpose, and (b) and this is of some importance, when the suit is not adjourned at all, having regard to the terms of O. XX, r. 1. The main part of O. IX, r. 7 speaks “of good cause being shown for non-appearance” on a previous day. Now, what are the criteria to be applied by the Court when the supposed inherent jurisdiction of the Court is invoked. Non-constant it need not be identical with what is statutorily provided in r. 7. All this only shows that there is really no scope for invoking the inherent powers of the Court. Lastly, that power is to be exercised to secure the needs of justice. If at the stage of r. 7 power is vested in the Court and after the decree is passed O. IX, r. 13 becomes applicable and the party can avail himself of that remedy, it is very difficult to appreciate the ends of justice which are supposed to be served by the Court being held to have the power which the learned counsel says must inhere in it. In this view it is unnecessary to consider whether to sustain the present submission the respondent must establish that the court was conscious that it lacked specific statutory power and intended to exercise an inherent power that it believed it possessed to make such orders as may be necessary for the ends of justice.

    7. It was next urged that even if the application under O. IX, r. 7 in respect of suit 134 of 1956 was incompetent having regard to the stage which the hearing of that suit reached when that application was made, still the order passed in suit 20 of 1953 in the application made for the restoration of that suit under O. IX, r. 9 was competent and that the order passed on that application operated as res judicata to the maintain-ability of the application under O. IX, r. 13 in respect of suit 134

    Whether electronic evidence is admissible in absence of certificate as per S 65B of evidence Act

    On CDR, learned counsel for accused No.1 strenuously submitted that there is no compliance of the mandatory provisions of Section 65B of the Indian Evidence Act and therefore, CDR reports cannot be admitted in evidence. In support, Shri Khamkar, learned counsel placed vehement reliance on Anvar P. V. Vs. P. K. Basheer and others 7. In this case, the Hon’ble Supreme Court overruled its previous decision in AIR 2005 SC 3820 and held in para 19 & 22 as under:-

    “19. Proof of electronic record is a special provision introduced by the IT Actamending various provisions under the Evidence Act. The very caption of Section 65Aof the Evidence Act, read with Sections 59 and 65B is sufficient to hold that the special provisions on evidence relating to electronic record shall be governed by the procedure prescribed under Section 65B of the Evidence Act. That is a complete Code in itself. Being a special law, the general law under Sections 63 and 65 has to yield.”

    “22. The evidence relating to electronic record, as 7 AIR 2015 Supreme Court 180 42 of 51 crapl 432.12 Group.doc noted hereinbefore, being a special provision, the general law on secondary evidence under Section 63 read with Section 65 of the Evidence Act shall yield to the same. Generalia specialibus non derogant, special law will always prevail over the general law. It appears, the court omitted to take note ofSections 59 and 65A dealing with the admissibility of electronic record. Sections 63and 65 have no application in the case of secondary evidence by way of electronic rec the same is wholly governed by Sections 65A and 65B. To that extent, the statement of law on admissibility of secondary evidence pertaining to electronic record, as stated by this Court in Navjot Sandhu case (supra), does not lay down the correct legal position. It requires to be overruled and we do so. An electronic record by way of secondary evidence shall not be admitted in evidence unless the requirements under Section 65B are satisfied. Thus, in the case of CD, VCD, chip, etc., the same shall be accompanied by the certificate in terms of Section 65Bobtained at the time of taking the document, without which, the secondary evidence pertaining to that electronic record, is inadmissible.”

    Bombay High Court

    Balasaheb Gurling Todkari And Ors vs The State Of Maharashtra on 9 June, 2015

    CORAM :- SMT. V. K. TAHILRAMANI AND

    INDIRA K. JAIN, JJ.

    Citation: 2015ALLMR(Cri)3464, 2015(3)BomCR(Cri)51

    These appeals arise out of judgment and order dated 21st March, 2012 passed by the learned Ad-hoc Additional Sessions Judge, Solapur in Sessions Case No.60 of 2006. By the said judgment and order, trial Court convicted the Appellants 4 of 51 crapl 432.12 Group.doc original Accused Nos.1 and 3 to 11 under sections 364, 365, 368, 302, 120-B, 201 read with 149 of the Indian Penal Code.

    The details of the punishment under various sections are as under:

    Accused Nos. Under Sentence

    Sectionsi

    1 and 3 to 11 120-B of the Rigorous imprisonment for 5 Indian ig Penal years and fine of Rs.5,000/-

    Code each in default 1 year 3

    months imprisonment.

    1 and 3 to 11 364 read with Rigorous imprisonment for 10

    149 of the years and fine of Rs.5,000 Indian Penal each in default imprisonment

    Code of 2 and 1/2 years each.

    1 and 3 to 11 368 read with Rigorous imprisonment for 3

    149 of the years and fine of Rs.1,000/-

    Indian Penal each in default further

    Code imprisonment of 9 months

    each.

    1 and 3 to 11 302 read with Imprisonment for life and fine 149 of the of Rs.1,000/- each in default Indian Penal imprisonment for 6 months. Code 1 and 3 to 11 201 read with Rigorous imprisonment for 2 149 of the years and fine of Rs.1,000/-

    Indian Penal each in default further

    Code imprisonment for 6 months

    each.

    5 of 51

    crapl 432.12 Group.doc

    2] Accused No.2 Basavraj @ Basu Gurusidhappa Loni

    was acquitted by the learned trial Judge of all the offences referred above.

    3] For the sake of convenience we shall refer the Appellants as they were referred before the trial Court.

    4] The prosecution case briefly stated is as under:

    That, Shakuntala and Brahrambika were the wives of Gurusidhappa. Shakuntala and Gurusidhappa had two sons and two daughters viz. Mallinath, Chinappa, Shantabai and Sridevi, Basavraj @ Basu Gurusidhappa Loni, Revansidha @ Bapu Gurusidhappa Loni, Nagratna and Mahadevi, were two sons and two daughters of Mallinath from Brahrambika. Victim Rajesh was the only son of Mallinath and complainant Sunanda.

    5] According to prosecution, Complainant Sunanda and her son Rajesh were residing on the second floor, Revansidha alongwith his family was residing on the ground 6 of 51 crapl 432.12 Group.doc floor and Basavraj was residing on the first floor of the same building situated at Budhwar Peth, Samrat Chowk, Solapur. They were running business in the name and style “Gurusidhappa M. Loni” dealing in manufacturing food grains, chillies grinding machineries and their spare parts. They had a shop and they were also running lodge “Vijay” and “City Palace”. It was a joint family business looked after by Basavraj, Revansidha and Rajesh.

    6] It appears that Rajesh used to leave home for factory at around 09:00 am. In the afternoon at 02:00 pm, he was going home for lunch. Immediately after lunch he used to go to factory and then returning at about 09:00 p.m. or so after closing the factory. Some time, Rajesh was going for dinner with friends outside in hotel and returning home.

    7] It is the prosecution case that Revansidha @ Bapu and Basavsidha @ Basu used to raise quarrel with Rajesh. It was relating to business, properties and parking of vehicles.

    There were two four wheelers i.e. one Ambassador Car and one 7 of 51 crapl 432.12 Group.doc Indica Car which were to be used by them for business purpose. It is alleged that Rajesh was denied use of vehicles for business purpose. Both Revansidha and Basavsidha were dominating Rajesh in business. As use of vehicle was denied to him, Rajesh purchased a Santro Car before 8 months of the incident. Revansidha and Basavsidha did not like purchase of Santro Car by Rajesh. There was altercation between them and Rajesh on purchase of new vehicle. Both the brothers were annoyed with Rajesh as he used to park his car in the bungalow.

    8] On 17th September, 2005 at around 09:00 pm, Rajesh came home. He was served food. He did not like food and so at around 10.30 p.m., he went to hotel to bring the food.

    While he was returning, Revansidha called Rajesh and asked him to remove his vehicle. There was hot exchange between Revansidha and Rajesh on parking of car. That time, Revansidha slapped Rajesh and threatened to assault him.

    Sunanda intervened and took Rajesh home. Revansidha passed adverse remarks against Sunanda. Wife of Revansidha 8 of 51 crapl 432.12 Group.doc also came there and tried to take her husband inside the house, but Revansidha slapped her too.

    9] On 19th September, 2005, as usual, Rajesh was to leave for factory at about 09:00 a.m. He received telephonic call from Revansidha @ Bapu that he had fallen down in the factory and sustained injuries to his leg. Rajesh immediately rushed to the factory. It was informed to wife of Revansidha also. When Rajesh reached the factory, Revansidha told him that he was feeling giddy and therefore, he fell down.

    Thereafter, Rajesh returned home.

    10] On 20th September, 2005 (Tuesday) at around 09:00 a.m. Rajesh went to factory. He came home for lunch at 2.00 p.m. and at 2.30 p.m. went back to factory. Being Tuesday, Puja was to be performed at the house of Rajesh. So, while leaving the house, he asked his mother to arrange for Puja by the time he returns from factory. Accordingly Sunanda made arrangements for Puja. Till 08:00 pm, Rajesh did not come to the house. So, Sunanda called Rajesh on his mobile phone. It 9 of 51 crapl 432.12 Group.doc was switched off. Sunanda was surprised as Rajesh was never keeping his mobile on switched off mode. She was worried and tried to contact at the shop. Satish was the servant working at the shop. He received call from Sunanda. She inquired from him about Rajesh. Satish replied that Rajesh and Bapu @ Revansidha had gone to a shop in search of mobile. After some time, again Sunanda called at the shop. Satish informed her that Rajesh had not returned to the shop.

    ig Third time, Sunanda called and that time, Satish told her that Rajesh had gone alongwith his friends. Sunanda was waiting for her son till 10:00 p.m. She inquired from Satish, whether there was any quarrel between Bapu and Rajesh. Satish told her that Rajesh had gone with his friends in a car and Bapu had left for home.

    11] Sunanda then informed Revansidha on phone that Rajesh had not come back. It is alleged that Revansidha got annoyed and told her that Rajesh was not a child and he must have gone with his friends. As no one was helping Sunanda to find out whereabouts of her son Rajesh, she phoned her nephew Gururaj and informed him that Rajesh was missing and 10 of 51 crapl 432.12 Group.doc she was worried about him. Thereafter, Gururaj alongwith his friend went in search of Rajesh. They had been to the house of Sachin Ashtekar one of the friends of Rajesh. But Rajesh was not found any where.

    12] One Qadar was the driver working with Rajesh.

    Sunanda inquired about Rajesh from Qadar. He told her that Rajesh had gone with Revansidha on the previous night to purchase a mobile.

    13] Sunanda then went to the house of Revansidha.

    Again, she informed him that whereabouts of Rajesh could not be traced. That time, Revansidha and his brother Basavsidha got annoyed and did not help Sunanda in search of whereabouts of Rajesh.

    14] Sunanda then went to Tarti Naka Police Chawki and lodged missing report. Initially PSI More inquired into the missing report. Later, it was handed over to PI Shankar Chavan (PW 37). On the report of Sunanda, Missing Entry No.25 of 11 of 51 crapl 432.12 Group.doc 2005 was recorded. During inquiry, PI Chavan interrogated Complainant Sunanda. It was revealed that due to property dispute, frequent quarrels and dispute on parking of vehicles, Rajesh was kidnapped by Revansidha and Basavraj on 20 th September, 2005 at around 07:00 p.m. from the premises of Loni Firm situated at Solapur. On 19 th November, 2005, complaint was lodged by Sunanda. PI Chavan recorded complaint lodged by Sunanda and forwarded the same to Foujdar Chawadi Police Station, Solapur.

    15] On the basis of report of Sunanda, Crime No.261 of 2005 was registered at Foujdar Chawadi Police Station for the offences punishable under Sections 364, 365, 120-B read with 34 of the Indian Penal Code. Investigation was entrusted to PI Chavan.

    16] During investigation, I.O. visited spot from where Rajesh was kidnapped. Spot Panchanama was drawn in the presence of two Panch Witnesses, Satish Patil and Pandit. It was found that Revansidha and Basavraj were absconding. In 12 of 51 crapl 432.12 Group.doc search, Revansidha was found in a lodge at Hubli. On 20 th November, 2005, he was taken in custody.

    17] On 21st November, 2005, two police officials were sent to Pune to arrest Basavraj Desai. Basavraj Desai was arrested and brought to Solapur. In further investigation, two mobile phones were recovered from Revansidha. They were seized and its seizure Panchanama was drawn in the presence of Panchas.

    18] On 22nd November, 2015, both the accused were arrested and produced before the learned Judicial Magistrate First Class, Solapur. The police custody of these accused was sought.

    19] On 23rd November, 2005 when Basavraj-Desai was in police custody one mobile found with him was seized. On the same day, Basavraj-Desai had shown spot to police where they got down for purchase of mobile. During interrogation Basavraj-

    Desai named some other persons as accused. One mobile 13 of 51 crapl 432.12 Group.doc phone was seized from Padmakar Waghmode. One Tata Sumo was seized from Malang Shende. During investigation search of house of Revansidha was taken. One revolver was found in his house. It came to be seized under Panchanama. A motorcycle of Chandrakant Shinde, a mobile from Umesh Popat were recovered. Supplementary statement of Sunanda was recorded. Many other witnesses were examined in the course of investigation.

    20] When investigation of C.R. No.261 of 2005 registered at Foujdar Chawadi Police Station, Solapur was in progress, CPI Najirsab Mokashi attached to Baswan Bagewadi Police Station, received a telephonic call on 21 st September, 2005 at 03:00 pm from PSI, Kolar Police Station that a dead body of an unknown person was found lying on the boundary of village Shirnal in the land belonging to Gurupudappa. On receiving message, CPI Mokashi went to the spot. He took over investigation from PSI, Kolar Police Station, which was within the jurisdiction of Baswan Bagewadi Police Station. CPI Mokashi drew Inquest Panchanama of the dead body of 14 of 51crapl 432.12 Group.doc unknown person aged between 25 and 30 years. Several injuries were noticed on the dead body. CPI Mokashi recorded statements of witnesses who were present on the spot. One Green Plastic Rope, earth mixed with blood and simple earth were seized from the spot. Accordingly, Spot Panchanama was drawn before the Panchas. CR No.175 of 2005 underSections 302 and 201 of the Indian Penal Code was registered at Kolar Police Station. PI Chavan collected the papers of CR No.175 of 2005 from Kolar Police Station. The photo of dead body was shown to mother of Rajesh and other witnesses.

    They identified the same as of Rajesh.

    21] In further investigation blood stained clothes and ornaments on person of deceased Rajesh, identified by complainant Sunanda were seized. Investigating Agency prepared a CD of visits to all the places. CDR of the calls from mobiles of accused was collected. In all 11 accused were found involved and they were arrested. As many as 30 different Panchanamas were drawn. The seized muddemal articles were forwarded to CA. On completing investigation, charge-

    15 of 51 crapl 432.12 Group.doc sheet was submitted to the Court of Judicial Magistrate First Class, Solapur who in turn committed the case for trial to the Court of Sessions at Solapur.

    22] Charge came to be framed against the Appellants vide Exhibit 39. Appellants accused pleaded not guilty to the charge and claimed to be tried. Their defence was of total denial and false implication. Prosecution examined in all 37 witnesses. On going through the evidence of prosecution witnesses and hearing the parties, learned Adhoc Additional Sessions Judge convicted and sentenced the Appellants as stated in paragraph No.1 above. Hence these appeals.

    23] We have heard the learned Advocates for the Appellants and the learned APP for State. After giving our anxious consideration to the facts and circumstances of the case, arguments advanced by the learned Advocates for the parties, the Judgment delivered by the trial Court and the evidence on record, for the reasons stated below, we are of the opinion that prosecution has failed to bring home the guilt of the 16 of 51 crapl 432.12 Group.doc accused beyond reasonable doubt and the impugned judgment and order of conviction and sentence does not sustain for the reasons stated hereinbelow.

    24] Needless to state that in a case of murder, exclusive burden lies on the prosecution to establish that death of a human being is caused. Further, the prosecution has to overrule by adducing reliable and convincing evidence the possibility of natural, accidental or suicidal death indicating totally the homicidal death beyond reasonable doubt. In the present case, it can seen from the judgment of the trial court, that no specific finding on the factum of homicidal death has been recorded. To prove that death in question was a homicidal death evidence of the Medical Officer, who performed Post Mortem on the dead body was essential. Prosecution in its own wisdom chose not to examine the Doctor who performed the Post Mortem.

    25] Prosecution examined PW-2 Vitthal Dalwai, PW-3 Sagarappa Jakkal, PW-24 Gurupadappa and PW-35 CPI 17 of 51 crapl 432.12 Group.doc Mokashi, to establish that the death in question was unnatural death. According to PW-2 Vitthal, Police visited their village. He saw that a dead body was lying in a pit besides road of Kirsyal village in the farm of Gurupadappa. There were injuries on the head of the dead body. Those injuries were probably caused by assault with stones. PW-2 could not identify the dead body from the photograph shown to him but stated that it was of the person of age group of around 36 years or so.

    According to PW-3 Sagarappa, who acted as Panch on Inquest Panchanama, he saw the dead body of a person aged about 25 years or so lying between Krisyal village and Nirgundi village. It was in the farm of PW-34 Gurupadappa. He stated that one plastic rope was lying near the dead body. He did not see the blood lying on spot. He saw one injury on the head of dead body. He stated that Inquest Panchanama was drawn in his presence.

    PW-34 Gurupadappa was the owner of field in which dead body was found. He stated that on 20.09.2005, at 8.00 18 of 51 crapl 432.12 Group.doc a.m. he had seen dead body of young boy in his land at village Krisyal on Bagewadi road. One gunny sack and one plastic rope was also lying there. The evidence of this witness creates doubt that the dead body was of Rajesh as he was found missing after 7.00 p.m. on 20.09.2005.

    Even otherwise from the evidence of the above 3 witnesses, it cannot be positively stated that the dead body found in the field of PW-4 Gurupadappa was the dead body of Rajesh.

    PW-35 – CPI Mokashi was attached to Baswan-

    Bagewadi police station at the relevant time. On 21.9.2005, at 3.00 p.m. he received a telphonic call from PSI Kolar Police Station that an incident of murder was reported. It took place on Baswan-Bagewadi – Nirgundi Road. On receiving information, he rushed to the spot and conducted Inquest Panchanama on the dead body. CPI Mokashi stated that dead body was of unknown person aged about 25 to 30 years. He drew Inquest Panchanama in the presence of Panch witnesses.

    The injuries which were found on the body were mentioned in the Inquest Panchanama.

    19 of 51 crapl 432.12 Group.doc From Inquest Panchanama (Exhibit 224) the oral evidence of panch witnesses and the testimony of PW-35 CPI Mokashi, it is apparent that the dead body was not identified by any one of them. Prosecution, however, placed reliance on the photograph of the dead body shown to PW-5 Sunanda mother of deceased Rajesh. She identified that the dead body shown in the photograph was of her son Rajesh. The clothes and ornaments on the person of deceased which were seized at Kolar police station were also shown to complainant Sunanda.

    She identified the same as of her son Rajesh. On the basis of photos articles A to E and clothes and ornaments of the deceased, prosecution tried to contend that death was homicidal death. It is pertinent to note that a nylon rope was found near the dead body. Except head injury, no other injuries were noticed on the dead body. In such circumstances, examination of the Doctor who performed Post Mortem was utmost necessary. Non-examination of the Medical Officer creates doubt regarding the cause and mode of death as homicidal.

    20 of 51 crapl 432.12 Group.doc Even if it is assumed for a moment that the dead body which was recovered from the field of PW-34 Gurupadappa was of a human being and particularly of Rajesh and the death was homicidal, that ipso facto would not relieve the prosecution from proving that the accused were responsible for causing the death.

    26] There is no direct evidence in the matter. So far as authorship of the accused is concerned, prosecution case exclusively rests on circumstantial evidence. On the law relating to circumstantial evidence, learned counsel for accused No.1 placed reliance on Balwinder Singh Vs. State of Punjab1 and learned counsel for accused No.10 relied upon Dhan Raj @ Dhand Vs. State of Haryana2.

    We have gone through these authorities referred by learned counsel for accused. They reiterate the settled propositions of law on circumstantial evidence.

    It may be stated that for a crime to be proved, it is not necessary that the crime must be seen to have been committed and must, in all circumstances, be proved by direct 1 1996 Cri. L. J. 883 (Supreme Court) 2 2014 (6) SCC 745 21 of 51 crapl 432.12 Group.doc or ocular evidence by examining before the Court those persons who had seen its commission. The offence can be proved by circumstantial evidence also. The principal fact or “factum probandum” may be proved indirectly by means of certain inferences drawn from “factum probans” i.e. evidentiary facts. To put it differently, circumstantial evidence is not direct to the point in issue but consists of evidence on various other facts in issue that taken together forms a chain of circumstances from which the existence of a principal fact can be legally inferred or presumed.

    27] It has been consistently laid down by the Apex Court that where a case rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person. A legal trend would further show that for a conviction in murder case on circumstantial evidence, following conditions must be fulfilled :

    i) The circumstances from which the conclusion of 22 of 51 crapl 432.12 Group.doc guilt is to be drawn should be fully established.

    ii) The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is, they should not be explainable on any other hypothesis except that the accused is guilty.

    iii) The circumstances should be of a conclusive nature and tendency.

    iv) They should exclude every possible hypothesis except the one to be proved.

    v) There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and it must show that in all human probability, the act must have been done by the accused and the accused alone.

    28] Keeping in view the ratio laid down by the Hon’ble Apex Court, we have to examine the circumstantial evidence on which reliance is placed by the prosecution. In the present case, prosecution has relied upon the following incriminating circumstances, which according to the prosecution, prove the 23 of 51 crapl 432.12 Group.doc guilt of the accused beyond reasonable doubt.

    [a] Deceased was last seen in the company of accused Nos. 1 and 3.

    [b] Recovery of incriminating articles at the instance of accused Nos. 1,3,4,9,10,11 and sons of accused Nos. 6 and 8.

    [c] Call Details Record (CDR) in respect of accused Nos. 1,3,6 and 8.

    [d] Motive against accused No.1.

    At the outset, it is to be mentioned here that PW-1, PW-20, PW-27 and PW-33, are the translators. Evidence of PW-10, PW-12, PW-13 and PW-26 is not of any assistance to the prosecution as they have been declared hostile and they have not supported the prosecution.

    29] [a] Deceased was last seen in the company of accused Nos. 1 and 3 :-

    On the law relating to theory of Last Seen Shri Khamkar, learned counsel for accused No.1 placed reliance on Malleshappa Vs. State of Karnataka3 wherein the Hon’ble Apex 3 2008 ALL MR (Cri.) 280 (S.C.) 24 of 51 crapl 432.12 Group.doc Court held as under:-

    “The circumstance of last seen together does not by itself and necessarily lead to the inference that it was the accused who committed the crime. There must be something more establishing connectivity between the accused and the crime.

    There may be cases where on account of close proximity of place and time between the event of the accused having been last seen with the deceased and the factum of death a rational mind may be persuaded to reach an irresistible conclusion that either the accused should explain how and in what circumstances the victim suffered the death or should own the liability for the homicide.”

    In the case on hand,PW-4 Rahematulla Samiullah Qadri ( Exhibit 110) is the star witness on the theory of last seen.Rahematulla was working as Driver on the vehicles of the firm. In 2005, he was driver with accused No.1. He used to clean the vehicles and proceed to the house of Revansidha.

    He was also attending the domestic work of the family of accused No.1. After attending domestic work, he was going to the shop where accused No.1 was running a flour mill. From 9.00 a.m. to 2.00 p.m. PW-4, Rahematulla was working in the 25 of 51 crapl 432.12 Group.doc flour mill. After one hour recess for lunch, he was returning to the shop and remaining there till 8.00 p.m. or so.

    It appears from the evidence of PW-4 Rahematulla that on 20.9.2005, at around 7.30 p.m. he was sitting in front of the shop. Satish Huge ( PW-36) and other servants were lighting incense stick ( Agarbatti). That time, one person came with a mobile to the shop.

    ig He showed that mobile to

    Revansidha in his cabin inside the shop. Then Revansidha

    called Rajesh. He asked PW-4 Rahematulla to keep watch on the shop as he was proceeding to purchase another mobile.

    PW-4 Rahematulla identified the person in the dock who came with mobile. He was accused No.3 – Basavraj Desai. It is stated by PW-4 Rahematulla that he saw Revansidha, Rajesh and Basavraj Desai then proceeding on foot towards Bhagwat Theater. At around 9.00 p.m. or so, Revansidha alone returned to the shop and asked Rahematulla to remove the motorcycle of Rajesh which was parked inside the shop and to park the same outside. Accordingly, Rahematulla removed the motorcycle of Rajesh from the shop and parked it outside. Thereafter, they 26 of 51 crapl 432.12 Group.doc closed the shop and went away.

    In his further evidence, Rahematulla stated that on 21.9.2005, at about 9.30 a.m. he went to the house of Revansidha. Mother of Rajesh called him from second floor while he was cleaning the car. So, Rahematulla went up. She enquired from him whether he was knowing anything about Rajesh as he had not returned home since night. That time, Rahematulla informed her that on the previous evening Revansidha, one person and Rajesh had proceeded together towards Bhagwat theater. Thereafter, Sunanda, mother of Rajesh, came down and made enquiry from accused No.1 Revansidha.

    Another witness on the theory of last seen together examined by the prosecution is PW-36 Satish Huge. He was an employee in Gurusiddhappa Loni firm. On 20.09.2005, in the evening at 7.00 p.m, or so, he was in the shop. He stated that he alongwith Rajesh, Bapu Loni and one employee Qadar was present in the shop. As heater was not working, he went 27 of 51 crapl 432.12 Group.doc to Dnyaneshwar Electronics for getting a coil. At 7.30 p.m., he came back to the shop. He was lighting incense stick (Agarbatti). One person came there with a mobile. He identified accused No.3 Basavraj Desai in the dock as the same person. He stated that the said person had shown mobile to Bapu. Then Bapu called Rajesh. Three of them proceeded on foot towards Bhagwat Theater to see a mobile.

    It appears from his evidence that then Bapu reached the shop at around 9.30 p.m. Sunanda – mother of Rajesh called on phone and enquired about Rajesh. Satish picked up the phone and informed her that Rajesh, Bapu and one person had gone towards Bhagwat Theater for seeing a mobile. He admitted in unequivocal terms in the extensive cross-

    examination that third time when mother of Rajesh called on phone and enquired about Rajesh, he informed her that Rajesh had gone in a car alongwith his friends.

    If evidence of PW-5 complainant – Sunanda is looked into, it can be seen that on 20.09.2005, Rajesh had been to the house for lunch at 2.30 p.m. He asked her to prepare for Puja and told that he would come back by 8.00 p.m. 28 of 51 crapl 432.12 Group.doc As he did not return she tried to contact him on mobile. His mobile was switched off. She was worried as Rajesh was never keeping his mobile on switched off mode. So, she phoned at the shop at 9.30 p.m. PW-36 Satish received the phone.

    When she enquired, he told her that Satish was taken by Revansidha to purchase a mobile. Thereafter again, Sunanda phoned at the shop. Satish picked up the phone. He informed her that Rajesh had gone in a car with his friend and Bapu Malak had left for home.

    It is significant to note that the statement of these two star witnesses PW-4 Rahemtullah and PW-36 Satish came to be recorded on 26.11.2005 i.e. after 2 months of the incident.

    There is no whisper in the entire evidence of the witnesses including the investigating Officer to explain delay in recording statements. Further admissions elicited in cross examination of PW-4 Rahemtulla and PW-36 Satish, clearly shows that last seen ceased to be a circumstance against accused Nos. 1 and 3 as according to witnesses and complainant, Rajesh had gone with his friend in a car and accused No.1 Revansidha returned to the house.

    29 of 51 crapl 432.12 Group.doc 30] In this background, we hold that theory of last seen is not established by the prosecution against accused Nos. 1 and 3. So far as other accused are concerned, it is not the prosecution case that deceased Rajesh was last seen in their company.

    31] [b] Recovery of incriminating articles against accused Nos. 1,3,4,9,10,11 and sons of accused Nos. 6 and 8 :-

    So far as recovery of incriminating articles from the accused is concerned, according to prosecution, following articles were recovered in pursuance to the information given by the accused.

    Accused Number Item recovered

    Accused No.1 [I] Two mobiles

    [ii] 0.32 Bore Revolver and 5 bullets Accused No.3 A Mobile Accused No.4 [I] Tata Sumo [ii] one knife [iii] one Nylon Rope [iv] one pant Accused No.6 One mobile from his son Umesh 30 of 51crapl 432.12 Group.doc Accused No.8 [I] One mobile from his son Ramesh [ii] One motorcycle Accused No. 9 [i]Shirt [ii]Pant Accused No.10 [I] Knife [ii] Gold ring [iii] Gold Chain [iv] Shirt.

    Accused No.11 [I] Shirt

    [ii] Pant

    [iii] Sattur with blood stained mud

    On the law relating to recovery of articles, particularly, under Section 27 of the Indian evidence Act, learned counsel for accused No.1 strongly relied upon Salim Akhtar alias Mota Vs. State of Uttar Pradesh 4, learned counsel for accused Nos. 5 to 8 and 9 to 11, placed reliance on Vijay Kumar Vs. State of Rajasthan5.

    In Wakkar and another. Vs. The State of Uttar Pradesh6 relied upon by the learned counsel for accused No.10, the Hon’ble Apex Court held as under:

    “The scope of this provision was explained by the Privy Council in the well known case of Pulukuri Kottaya and others v.

    4 2003 Cri. L. J. 2302 (Supreme Court) 5 (2014) 3 Supreme Court Cases 412 6 2011 (3) SCC 306 31 of 51 crapl 432.12 Group.doc Emperor, AIR 1947 PC 67, wherein it was held that it is fallacious to treat the “fact discovered” within the section as equivalent to the object produced. The fact discovered embraces the place from which the object is produced and the knowledge of the accused as to this, and the information given, must relate distinctly to this fact. Information as to the past user, or the past history, of the object produced is not related to its discovery in the setting in which it is discovered. Therefore, what is admissible is the place from where the polythene bag containing pistol and other articles was allegedly recovered. The fact that some terrorist organisation had given the pistol and other articles to the appellant or its use would not be admissible.”

    Keeping in view the settled law in respect of recovery of articles in pursuance to the information given by accused, under Section 27 of the Evidence Act, it would be essential now to consider the prosecution evidence.

    PW-7 Dinesh Suhas Pandit is the Panch Witness examined on the following 30 panchanamas recorded within a span of 2 months by the investigating agency.

    32 of 51 crapl 432.12 Group.doc Sr. Date of Type of Panchanama Exhibit No. Panchanama No.2 21/11/2005 Common Arrest panchanama 125 of accused No.1 Revansidha and accused No.2 Basavraj and seizure of two mobiles from accused No.1 Revansidha Panchanama of mobile from accused No.3 Basavraj Desai

    1. 24/11/2005 Seizure Panchanama of Tata 133 Sumo and green nylon rope
    2. 26/11/2005 Seizure of Nokia 6600 mobile 134 from Sachin Waghmode 6 26/11/2005 Seizure Panchanama of 0.32 135 bore revolver and 5 bullets at the instance of Revansidha Loni 7 26/11/2005 Seizure Panchanama of mobile 136 of motorola company and motorcycle of Boxer company from Ramesh Chandrakant Shinde, son of accused No.8 8 26/11/2005 Seizure Panchanama of mobile 137 of Nokia company from Umesh mane 9 28/11/2005 Memorandum Panchanama 138 with respect of burning of certain papers – accused No.2 Basavraj Loni 10 28/11/2005 Recovery Panchanama of 139 burnt papers – accused No.2 Basavraj Loni 33 of 51crapl 432.12 Group.doc 11 29/11/2005 Memorandum Panchanama 140 with respect to readiness to show knife – accused No.4 Malang Shende 12 29/11/2005 Seizure Panchanama of knife – 141 accused No.4 Malang Shinde 13 30/11/2005 Seizure Panchanama of 143 clothes of accused No.4 Malang Shende 14 30/11/2005 Seizure Panchanama of 144 clothes of accused No.9 Navnath Salunke 15 01/12/2005 ig Memorandum Panchanama 145 with respect to readiness to show knife – accused No.10 Sanjay Zingadekar 16 01/12/2005 Seizure Panchanama of Knife 146 and clothes – accused No.10 Sanjay Zingadekar 17 01/12/2005 Seizure Panchanama of gold 147 chain – accused No.10 Sanjay Zingadekar` 18 02/12/2005 Seizure of one American 148 diamond gold ring – accused No.10 Zanjay Zingadekar 19 13/12/2005 Panchanama of opening and 149 again sealing of two knives for showing them to doctor 20 15/12/2005 Seizure Panchanama of 150 clothes of deceased Rajesh Loni 21 13/01/2006 Arrest Panchanama of accused 151 No.11 Ambadas Talathi 22 15/01/2006 Seizure Panchanama of 152 accused No.11 Ambadas Talathi 34 of 51 crapl 432.12 Group.doc 23 16/01/2006 Memorandum Panchanama 153 with respect to readiness to show Sattur – accused No.11 Ambadas Talathi 24 16/01/2006 Recovery Panchanama of 154 Sattur – accused No.11 Ambadas Talathi 25 18/01/2006 Panchanama of opening and 155 again sealing of Sattur for showing them to Doctor 26 19/01/2006 Seizure of Video CD prepared 156 by Videographer PW 30 Anand Arun Gangaji 27 19/01/2006 ig Panchanama of record of Call 157 details of mobiles of Chandrakant Shinde, Popat Mane and Basavraj Desai received from IDEA Company 27 pages 28 19/01/2006 Seizure Panchanama of Airtel 158 Company call details report 58 pages 29 19/01/2006 Seizure Panchanama of IDEA 159 company call details report – 35 pages 30 19/01/2006 Seizure Panchanama of IDEA 160 company call detail report – 33 pages 32] Commenting upon the manner in which articles were seized learned counsel for accused submitted that no efforts were made to get independent Panch witness and this itself is enough to discard the evidence of Panch witness. In 35 of 51crapl 432.12 Group.doc support thereof, learned counsel relied upon Salim Akhtar alias Mota Vs. State of Uttar Pradesh (Supra), in which the Hon’ble Apex Court held as under :

    “P.W. 1, N.P. Rai, has stated that after reaching P.S. Lisari Gate, he had summoned two public witnesses, namely, Vipin and P.W.3 Anuj Kaushik out of whom only one has been examined in Court. P.W. 3 has deposed that he works as a photographer for a magazine known as ‘Sachi Duniya’. He had received a phone call from his office that there was a traffic jam near Medical College and accordingly he started for the said place on his scooter to take photographs. However, he saw some police personnel near Lisari Gate Chaupal and inquired from them why they were standing there and on their asking he accompanied the police party. He has admitted that he often goes to the police stations in the city and he had been paid Rs. 640/- for taking the photographs but he had not issued any receipt for the same. The statement of this witness shows that he is a frequent visitor to the police stations and this may be on account of the fact that the police may have been obliging him by asking him to take photographs on those occasions in which taking of photographs was considered necessary. It is not possible to accept his statement that though he was paid Rs. 640/- by the police for taking the photographs but he did not issue any receipt. P.W. 1 36 of 51 crapl 432.12 Group.doc has admitted that though Lisari Gate locality was only two or three furlongs from the place from where recovery was made but no witness was summoned there. It, therefore, shows that the police made no effort to get any independent public witness at the time when the alleged recovery was made at the pointing out of A-l and the only public witness examined, appears to be a person who was not only intimate but was also obliged to them.”

    33] In the instant case facts are identical. It is significant to note that all disclosures, discoveries and even arrests have been made in the presence of PW-7 Dinesh. He admitted in cross-examination that Faujdar Chawadi Police Station was at the distance of 4-5 Kilometers from his house.

    His evidence shows that within a span of two months, he visited police station for about 18 times. According to him, he used to sit in the shop of his paternal uncle. His paternal uncle was running a Xerox/STD shop. The shop used to open at 9.00 a.m. and close at 10.00 p.m. He stated that he was not paid cash by way of salary but his uncle was maintaining his family comprising his parents, brother and himself. He had no other business or trade. Since 10 to 12 years he was sitting in his 37 of 51 crapl 432.12 Group.doc uncle’s shop. He admitted that there were many residential houses surrounding Faujdar Chawadi police station. In view of these admissions, moot question that arises here is whether reliance can still be placed on the testimony of PW-7 Dinesh Pandit.

    So far as requirements of law are concerned, in such cases, Investigating Officer is required to call upon some independent witness of the locality and if such person is not available, or is not willing to act as panch then another independent and respectable person can be called as a Panch witness. Without any further consideration of the matter, one thing can be more or less with certain amount of conclusiveness stated here, that choosing a person who is not of the locality as a Panch on 30 Panchnamas, when other independent Panch could have been easily available, creates a serious doubt. The ingenuity devised by the prosecution in the instant case knew no bounds. From the admissions elicited in cross-examination of PW-7 Dinesh, it cannot be attributed to be sheer coincidence.

    On the contrary, it appears to be deliberate, as a person who was working without salary was chosen as a Panch on series of 38 of 51 crapl 432.12 Group.doc panchanamas recorded during the period of 2 months.

    Investigating Officer could not give plausible explanation for not choosing independent Panch witnesses for number of panchanamas. The manner in which investigating agency had acted creates strong suspicion about the fairness of investigation as it frustrates the object of :-

    [i] preventing unfair dealings on the part of investigating agency;

    [ii] safeguarding the rights of the subject and to ensure that search and seizure is conducted honestly;

    [iii] ensuring confidence in the public in general that anything incriminating which may be found shall really be found and shall not be planted;

    [iv] to obtain as reliable evidence as possible and exclude the possibility of concoction and malpractice of any kind; and [v] to ensure genuine search and recoveries.

    34] In the light of the above, we do not find it necessary to go into further details of evidence of PW-7 Dinesh on the 39 of 51 crapl 432.12 Group.doc recoveries of various articles at the instance of accused persons. Suffice it to state, that under the circumstances brought on record, his evidence does not inspire confidence and no reliance can be placed on such testimony. Even otherwise, mere proof of panchanamas would not help the prosecution unless recovery of various articles are connected with the commission of the alleged crime by the accused.

    PW-19 Avinash Patil had carried 25 articles alongwith one Tata Sumo jeep to the Chemical Analyser. His evidence shows that the articles were not in sealed condition.

    This important admission is elicited in his cross-examination.

    PW-35 CPI Mokashi also admitted in cross-examination that Muddemal was not sealed. None of the CA reports connect either of the accused with the commission of any act as the results were mostly inconclusive. If it is so there is no point in considering the evidence of PW-8 Maruti Vedphatak, PW-11 Sohel Abdul K. Alim, PW-14 Santosh Pawar, PW-15 Munna Kazi,PW-16 Vaibhav Kadam and PW-22 Sachin Ashtikar as it would be a futile exercise and better course would be to keep their testimonies out of consideration. In this premise, we hold 40 of 51 crapl 432.12 Group.doc that prosecution has failed in proving this circumstance too.

    35] [c] Call Details Record (CDR) in respect of accused Nos. 1,3,6 and 8 :-

    It is the prosecution case that, at the relevant time, there was exchange of calls amongst accused Nos. 1,3,6 and 8.

    To prove CDR, prosecution examined PW-24 Sachin Shinde and PW-32 Suresh Shilgire.

    ig PW-24 Sachin Shinde (Exhibit 199) was serving as Nodal Officer with Idea Cellular Ltd. On 28.11.2005, company received a letter from Deputy Police Commissioner to provide call details of the mobiles mentioned in the letter. Accordingly, call details were furnished.

    Same are proved at Exhibits 157 (1)to (157). These call details were pertaining to mobiles of accused No.1 son of accused No.6 and accused No.8.

    PW-32 Suresh Shilgire (Exhibit 218) was working in Airtel company. Police visited the company and sought information regarding incoming and outgoing calls on mobile of Vaibhav Kadam, which was stolen and allegedly used by accused No.3 Basavraj Desai. This mobile was recovered from 41 of 51 crapl 432.12 Group.doc accused No.3. CDR report is at Exhibit 219.

    On CDR, learned counsel for accused No.1 strenuously submitted that there is no compliance of the mandatory provisions of Section 65B of the Indian Evidence Act and therefore, CDR reports cannot be admitted in evidence. In support, Shri Khamkar, learned counsel placed vehement reliance on Anvar P. V. Vs. P. K. Basheer and others 7. In this case, the Hon’ble Supreme Court overruled its previous decision in AIR 2005 SC 3820 and held in para 19 & 22 as under:-

    “19. Proof of electronic record is a special provision introduced by the IT Actamending various provisions under the Evidence Act. The very caption of Section 65Aof the Evidence Act, read with Sections 59 and 65B is sufficient to hold that the special provisions on evidence relating to electronic record shall be governed by the procedure prescribed under Section 65B of the Evidence Act. That is a complete Code in itself. Being a special law, the general law under Sections 63 and 65 has to yield.”

    “22. The evidence relating to electronic record, as 7 AIR 2015 Supreme Court 180 42 of 51 crapl 432.12 Group.doc noted hereinbefore, being a special provision, the general law on secondary evidence under Section 63 read with Section 65 of the Evidence Act shall yield to the same. Generalia specialibus non derogant, special law will always prevail over the general law. It appears, the court omitted to take note ofSections 59 and 65A dealing with the admissibility of electronic record. Sections 63and 65 have no application in the case of secondary evidence by way of electronic record;

    the same is wholly governed by Sections 65A and 65B. To that extent, the statement of law on admissibility of secondary evidence pertaining to electronic record, as stated by this Court in Navjot Sandhu case (supra), does not lay down the correct legal position. It requires to be overruled and we do so. An electronic record by way of secondary evidence shall not be admitted in evidence unless the requirements under Section 65B are satisfied. Thus, in the case of CD, VCD, chip, etc., the same shall be accompanied by the certificate in terms of Section 65Bobtained at the time of taking the document, without which, the secondary evidence pertaining to that electronic record, is inadmissible.”

    43 of 51 crapl 432.12 Group.doc 36] It is pertinent to note that in the State (NCT of Delhi) Vs. Navjot Sandhu two Judge Bench of the Hon’ble Apex Court had an occasion to consider an issue on production of electronic record as evidence. While considering the printouts of the computerized records of the calls pertaining to the cellphones it was held that secondary evidence is permissible in the absence of certificate under sub-section (4) of Section 65-B of the Indian Evidence Act.

    ig This judgment was overruled in Anvar’s case (supra).

    In the present case the requisite certificate on Call Details Record as per law was not filed. In view of the ratio laid down in the above authority absence of such certificate would render the CRD inadmissible in law. Being inadmissible, same cannot be considered.

    37] [d] Motive :-

    Prosecution had attributed motive to accused No.1 to eliminate the life of Rajesh in view of the disputes over :-

    [a] Business;

    [b] landed property; and

    44 of 51

    crapl 432.12 Group.doc

    [c] parking of vehicles.

    To establish motive, prosecution relied upon

    evidence of PW-4 Rahemtulla, PW-5 Sunanda, PW-6 Gurupad, PW-21 Sunita, PW-23 Shivsharnappa, PW-25 Vasanti John, PW-28 Kumar Harihar, PW-29 Shrikant Tiwari, and PW-31 Dr. Natraj.

    On motive learned counsel for accused No.1 Shri Khamkar, submitted that the prosecution has failed to prove that accused were responsible for causing the death of Rajesh and so motive, howsoever strong, would not be sufficient to establish the guilt of the accused. To substantiate his submission Shri Khamkar, placed reliance on State of Punjab Vs. Sucha Singh and others8, in which the Hon’ble Apex Court observed:-

    “Mr. Walia, learned counsel, lastly contended that there is a strong motive connecting the accused with the crime for the reasons being that Kuldip Singh, nephew of accused Sucha Singh was murdered by the complainant party and the accused had nursed a grudge against the complainant party for revenge. This plea is of no help to the prosecution case. When the basic foundation of the prosecution case crumbled down, the motive becomes 8 AIR 2003 Supreme Court 1471 45 of 51 crapl 432.12 Group.doc inconsequential. At the same time, animosity is a double edged sword. It could be a ground for false implication, it could also be a ground for assault. In the instant case, in view of the facts and circumstances as discussed above, the motive, however, strong merely creates a suspicion. Suspicion cannot take the place of proof of guilt.”

    38] In the case on hand, prosecution had miserably failed to prove any of the circumstances against the accused.

    Therefore, assuming that there were internal bickerings between accused No.1 and Rajesh relating to business, landed property and parking of vehicle, that alone would not be sufficient to hold the accused guilty of commission of alleged murder of Rajesh.

    39] As discussed above, statements of material witnesses do not help the prosecution to bring home the guilt of the accused persons beyond reasonable doubt. It is also evident that the testimonies of main witnesses is wholly unreliable, unbelievable, unnatural, untrustworthy and self-

    contradictory. The entire prosecution evidence bristles with improbable version and material lacunas. There are series of 46 of 51 crapl 432.12 Group.doc circumstances which are self speaking to indicate that prosecution case is overlain with number of doubts and mass of lies so embedded that its impossible to separate the truth from falsehood. The major deficiencies emerged in the prosecution case are –

    [i] In missing report lodged by PW-5 Sunanda, she did not attribute any specific role to the accused though she admitted that she was informed by PW-4 Rahemtulla and PW-

    36 Satish that accused Nos. 1 and 3 had taken Rajesh alongwith them;

    [ii] PSI More, who enquired into missing report was an important witness. He was kept away from the witness box for the reasons best known to prosecution;

    [iii] Medical Officer on Post Mortem r

    High court sets aside RCR issued by family court on wife’s appeals 335 days later !!!! Oh mi lord ….. what’s the use of RCR then ???

    High court sets aside RCR issued by family court on wife’s appeals 335 days later !!!! Oh mi lord ….. what’s the use of RCR then ??? The Hon High court itself agrees that wife hasn’t given proper reasons for delay !! πŸ˜ƒπŸ˜ƒπŸ˜ƒπŸ˜ƒ


    When court should set aside exparte decree for restitution of conjugal rights?

    Therefore, it is incumbent on the petitioning husband or wife, as the case may be, to satisfy the court about his/her sincerity in wanting to resume cohabitation with his/her spouse. This is more so, since clause (a) to sub-section (1) of Section 23 of the Hindu Marriage Act mandates that, in any proceeding under the said Act, whether defended or not, the court shall decree the relief only if the court is satisfied that any of the grounds for granting the relief exists and the petitioner, except in cases where the relief is sought by him or her on the ground specified in sub-clause (a), sub-clause (b) or sub-clause (c) of clause (ii) of Section 5, is not in any way taking advantage of his or her own wrong or disability for the purposes of such relief.

    1. In the instant case, a reading of the impugned order (which we have already extracted hereinbefore) would show that, the Family Court passed the ex parte decree for restitution of conjugal rights, merely accepting the proof affidavit filed by the respondent herein, even without recording the satisfaction of the court in terms of clause (a) to sub-section (1) of Section 23 of the Hindu Marriage Act.
    2. In that view of the matter, the ex parte decree for restitution of conjugal right passed by the Family Court cannot be sustained in law. Though the appellant has not offered specific reason for her non-appearance in court after filing her objections in the O.P., considering the totality of the facts and circumstances of the case and also the fact that the Family Court passed the ex parte decree merely accepting the proof affidavit filed by the respondent herein, even without recording its satisfaction in terms of clause (a)to sub-section (1) of Section 23 of the Hindu Marriage Act, this appeal is disposed of by setting aside the ex parte order passed by the Family Court on 31.07.2014 in O.P.No.2251 of 2012, on the appellant depositing a cost of Rs.3,000/- before the Family Court, within one month from the date of receipt of a certified copy of this judgment, for payment to the respondent herein. On such deposit being made, the Family Court shall proceed with O.P.No.2251 of 2012 and dispose of the matter finally, as expeditiously as possible, at any rate within four months from the date of such deposit, afteraffording both the sides an opportunity to adduce evidence.

    IN THE HIGH COURT OF KERALA AT ERNAKULAM

    PRESENT:

    MR.JUSTICE P.R.RAMACHANDRA MENON

    &

    MR. JUSTICE ANIL K.NARENDRAN

    13TH DAY OF JULY 2016

    Mat.Appeal.No. 989 of 2015

    RINJU,

    Vs

    SANTHOSH,

    Citation: 2016 (6) ALLMR(JOURNAL)101

    The appellant is the respondent in O.P.No.2251 of 2012 on the file of the Family Court, Thrissur, a petition filed by the respondent herein for a decree of restitution of conjugal rights. On receipt of notice, the appellant entered appearance and filed her objections in the said O.P. But, she failed to appear before the Family Court on the subsequent posting dates and as such, she was set ex parte. The respondent herein filed proof affidavit and the Family Court allowed the O.P. by an ex parte order dated 31.07.2014. Paragraphs 4 and 5 and the operative portion of the said order read thus;

    “4. The petitioner filed affidavit in support of the avermentsin the petition.

    1. From the evidence, averments in the petition are proved. In the result, the petition is allowed as follows; The respondent is directed to come and reside with the petitioner within one month from the date of decree. If she fails to obey the decree, the petitioner will be entitled to get it executed through court.”
  • Feeling aggrieved by the ex parte decree of the Family Court in O.P.No.2251 of 2012 the appellant is before this Court in this appeal.

  • This appeal was filed with a delay of 335 days. By a separate order passed on this date we have condoned the delay in filing the appeal.

  • Since the only issue that arises for consideration in this appeal is as to whether the appellant has made out a case to set aside the ex parte decree passed by the Family Court, the learned counsel for both the parties have agreed that the appeal itself can be finally heard and disposed of.

  • Heard the arguments of the learned counsel for the appellant and also the learned counsel for the respondent.

  • The pleadings and materials on record would show that, the marriage between the appellant and the respondent was solemnised on 01.01.2012. After the marriage, they resided together as husband and wife and a female child was also borne in the said wedlock. Alleging that the appellant had withdrawn from the company of the respondent without any valid cause, the respondent herein has approached the Family Court in O.P. No.2251 of 2012 seeking a decree of restitution of conjugal rights. Though the appellant entered appearance before the Family Court and filed objection, she could not appear on the subsequent posting dates. As such, she was set ex parte and the Family Court passed an ex parte decree for restitution of conjugal rights.

  • The appellant would contend that she was not afforded with a reasonable opportunity before the Family Court to contest the matter by adducing evidence. However, the specific reason for her non-appearance in court after filing her objections in the O.P. has not been disclosed either in the memorandum of appeal or in the affidavit accompanying I.A.No.3543 of 2015 filed seeking an order of stay of the execution of the ex parte decree passed by the Family Court. The only contention raised in the memorandum of appeal is that, the appellant has no means of livelihood and she and her child are totally depending on her parents for their livelihood. In the memorandum of appeal the appellant would also state reasons for leaving her matrimonial home. We express no opinion on the said contentions raised by the appellant and it is for her to substantiate such contentions before the Family Court by adducing cogent and convincing evidence.

  • Section 9 of the Hindu Marriage Act, 1955 deals with restitution of conjugal rights. As per Section 9 of the Act, when either the husband or the wife has, without reasonable excuse, withdrawn from the society of the other, the aggrieved party may apply, by petition to the court, for restitution of conjugal rights and the court, on being satisfied of the truth of the statements made in such petition and that there is no legal ground why the application should not be granted, may decree restitution of conjugal rights accordingly. Going by the Explanation to Section 9, where a question arises whether there has been reasonable excuse for withdrawal from the society, the burden of proving reasonable excuse shall be on the person who has withdrawn from the society.

  • The essence of a decree for restitution of conjugal rights is that, either the husband or the wife desiring the company of his/her spouse makes an effort through the court to restore his/her conjugal rights. The mode of enforcement of a decree for restitution of conjugal rights is provided under Rules 32 and 33 of Order XXI of the Code of Civil Procedure, 1908. As per sub-rule (1) of Rule 32, where the party against whom a decree for restitution of conjugal rights has been passed, has had an opportunity of obeying the decree and has wilfully failed to obey it, the decree may be enforced by the attachment of his property. Going by sub-rule (3) of Rule 32, where any such attachment under sub-rule (1) of Rule 32 has remained in force for six months, if the judgment-debtor has not obeyed the decree and the decree-holder has applied to have the attached property sold, such property may be sold; and out of the proceeds the court may award to the decree-holder such compensation as it thinks fit, and shall pay the balance, if any, to the judgment-debtor on his application. Rule 33 deals with the discretion of the court in executing a decree for restitution of conjugal rights.

  • The provisions under Rules 32 and 33 of Order XXI of theCode of Civil Procedure therefore provides for enforcement of a decree for restitution of conjugal rights only to the extent indicated therein. Therefore, on the strength of the decree for restitution of conjugal rights obtained by either the husband or the wife, his/her spouse cannot be compelled restore conjugal rights or to resume cohabitation, unless and until he/she is willing for such restoration or resumption. However, it has to be noticed that, as per clause (ii) of sub-rule (1A) of Section 13 of the Hindu Marriage Act, a petition for dissolution of marriage by a decree of divorce could be maintained on the ground that there has been no resumption of cohabitation between the parties to the marriage for a period of one year or upwards after the passing of a decree for restitution of conjugal rights in a proceedings to which they were parties. Therefore, the provisions under Section 9 of the Hindu Marriage Act for restitution of conjugal rights cannot be allowed to be misused by either the husband or the wife, as the case may be, whose request for restitution of conjugal rights was merely a pretence and sham, and intended for an extraneous purpose of securing a decree for divorce invoking clause (ii) of sub-rule (1A) of Section 13 of the said Act.

  • Therefore, it is incumbent on the petitioning husband or wife, as the case may be, to satisfy the court about his/her sincerity in wanting to resume cohabitation with his/her spouse. This is more so, since clause (a) to sub-section (1) of Section 23 of the Hindu Marriage Act mandates that, in any proceeding under the said Act, whether defended or not, the court shall decree the relief only if the court is satisfied that any of the grounds for granting the relief exists and the petitioner, except in cases where the relief is sought by him or her on the ground specified in sub-clause (a), sub-clause (b) or sub-clause (c) of clause (ii) of Section 5, is not in any way taking advantage of his or her own wrong or disability for the purposes of such relief.

  • In the instant case, a reading of the impugned order (which we have already extracted hereinbefore) would show that, the Family Court passed the ex parte decree for restitution of conjugal rights, merely accepting the proof affidavit filed by the respondent herein, even without recording the satisfaction of the court in terms of clause (a) to sub-section (1) of Section 23 of the Hindu Marriage Act.

  • In that view of the matter, the ex parte decree for restitution of conjugal right passed by the Family Court cannot be sustained in law. Though the appellant has not offered specific reason for her non-appearance in court after filing her objections in the O.P., considering the totality of the facts and circumstances of the case and also the fact that the Family Court passed the ex parte decree merely accepting the proof affidavit filed by the respondent herein, even without recording its satisfaction in terms of clause (a) to sub-section (1) of Section 23 of the Hindu Marriage Act, this appeal is disposed of by setting aside the ex parte order passed by the Family Court on 31.07.2014 in O.P.No.2251 of 2012, on the appellant depositing a cost of Rs.3,000/- before the Family Court, within one month from the date of receipt of a certified copy of this judgment, for payment to the respondent herein. On such deposit being made, the Family Court shall proceed with O.P.No.2251 of 2012 and dispose of the matter finally, as expeditiously as possible, at any rate within four months from the date of such deposit, after affording both the sides an opportunity to adduce evidence.

  • It is made clear that, we have not expressed anything touching the merits of the issues between the parties and all such issues are left open to be urged before the Family Court.