Second Complaint–Maintainability of
Second Complaint–Maintainability of–Second complaint can be maintainable in exceptional circumstances, depending upon the manner in which first complaint came to be dismissed–If first complaint dismissed without venturing into merits of case or on a technical ground and/or by returning a reasoning which can be termed as perverse or absurd in law, and/or when essential foundation of second complaint is based upon such set of facts which were either not in existence at the time when first complaint filed or complainant could not have possibly lay his hands to such facts at that time, an exception can be made to entertain second complaint. (2) Section 362 CrPC–Once a Magistrate applied his mind on materials available on record and came to a conclusion that no prima facie case made out and dismissed complaint, another Judicial Magistrate cannot hold that earlier order passed by his predecessor is not valid–It virtually amounts to reviewing earlier order, which is barred u/s 362 CrPC. (3) First complaint u/s 499/500 IPC dismissed by Magistrate on ground that alleged defamatory content falls in Fourth exception of Section 499 IPC–Complainant filed a criminal revision before High Court but same was withdrawn-Thereafter complainant filed second complaint, in Court of Judicial Magistrate under same provisions as was his first complaint– Magistrate summoned the accused–High Court quashed summoning order–Complainant filed present appeal against order of High Court– Held, second complaint on same set of facts & circumstances is not maintainable–Second complaint is replica of facts set out in first complaint and no fresh facts set out in second complaint–Even if order of Magistrate while dismissing first complaint was erroneous in law, it does not amount to non application of mind–Appeal dismissed.
Criminal – PbHr–Supardari of vehicle-Bank guarantee–Amount
Supardari of vehicle-Bank guarantee-Matter under Punjab Excise Act-Magistrate directed release of car in question on superdari subject to furnishing of bank guarantee of Rs.3,50,000 with one surety in like amount-Petitioner, who is registered owner of car, challenged this order -Held, guarantee amount is reduced to 20% in light of judgment of this Court “Darshan Singh Vs State of Punjab” CWP-24941-2019 etc. decided on 28.01.2020–Instead of Rs.3,50,000 guarantee amount stands reduced to Rs. 70,000–Remaining part of order shall remain as it-Petition allowed in aforesaid terms.
Civil – Supreme Court–Additional evidence in civil appeal
Order 41 Rule 27 CPC-Additional evidence in civil appeal-Appellate Court may permit additional evidence to be produced whether oral or documentary, if conditions mentioned in O 41 R 27 are satisfied after additional evidence is permitted to be produced in exercise of powers U/O 41 R 27–Thereafter, procedure U/O 41 R 28 and 29 CPC is required to be followed-Therefore, unless and until procedure U/O 41 R 27, 28 and 29 are followed, parties to appeal cannot be permitted to lead additional evidence and/or appellate Court is not justified to direct Court from whose decree appeal is preferred or any other subordinate court, to take such evidence & to send it when taken to Appellate Court. (Para 10.1)
H.S. Goutham vs Rama Murthy and Anr. Etc .. CIVIL APPEAL NO.1844 OF 2010 .. Supreme Court .. 12.02.2021
Civil – Supreme Court (Three Judges Bench)–refund with interest and compensation to allottees of flats
RERA-Section 18 RERA Act provides remedy of refund with interest and compensation to allottees, when a developer fails to complete construction or give possession as per agreement of sale-Remedies u/s 18 are without prejudice to any other remedy available-Section 71 RERA Act empowers RERA Authority to determine compensation payable u/s 12/14/18 and 19 of Act-Proviso to Section 71 provides that a consumer has right to withdraw its complaint before Consumer Fora in respect of matters covered u/s 12/14/18 and 19 of Act and file same before RERA–Section 79 RERA Act bars jurisdiction only of Civil Courts in respect of matters which an authority constituted under RERA Act is empowered to adjudicate on-Section 88 RERA Act provides that provisions of RERA Act shall apply in addition to and not in derogation of other applicable laws-A choice or discretion is given to allottee whether he wishes to initiate appropriate proceedings under Consumer Protection Act or file application under RERA Act. (Para 20.4 to 20.11)
IREO GRACE REALTECH PVT. LTD vs ABHISHEK KHANNA & OTHERS ..CIVIL APPEAL NO. 5785 OF 2019 .. Supreme Court .. 11.01.2021
Civil – Supreme Court
Covid 19–Extension of Period of Limitation- Order dated 23.03.2020 passed by this Court in SMW(C) No.3 of 2020 is still operative-In this case, Supreme Court ordered that “period of limitation in all such proceedings, irrespective of limitation prescribed under general law or Special Laws, whether condonable or not, shall stand extended w.e.f 15th March 2020 till further order/s–This order is still operative & by subsequent orders, scope has been enlarged so that said order applies in other proceedings also-In present case, complainants filed Consumer Complaints before National Commission-As per Section 38(2)(a) Consumer Protection Act, 30 days time is provided for filing written statement, which can be extended for a further period of 15 days-Reply filed by redpondent beyond period of 45 days- Limitation for filing reply would be deemed to have been extended as it is clear from order dated 23.03.2020 that extended period of limitation is applicable to all petitions/suits/ applications/appeals and all other proceedings- Direction issued to National Commission that written statement shall be taken on record.
Criminal – PbHr (S.C referred)– remand of accused immediately after his arrest
Section 167(2) CrPC-Section 467 IPC-F.I.R registered u/s 419/420 IPC but later on Section 467 added when remand of accused sought immediately after his arrest-Accused sought default bail on ground that challan filed after 60 days elapsed-Held, if an offence is punishable with imprisonment for a period of 10 years or for life imprisonment, period for completing investigation is 90 days-Offence u/s 467 is punishable with imprisonment for life-It is apparent from perusal of Section 167(2) that for offences which are punishable with imprisonment for life or imprisonment for not less than 10 years, period for presentation of challan is 90 days-Challan filed within 90 days- Application u/s 167(2) dismissed.
Criminal – PbHr–Regular bail of habitual offender
Regular bail of habitual offender-F.I.R u/s 379 IPC and Section 21 Mining and Minerals Act- Allegations of illegally mining-Raid conducted and JCB owned by petitioner found at spot but petitioner was able to flee the place and was later arrested-Plea of State that petitioenr is a habitual offender and is involved in 8 other similar FIRs–However, he has been enlarged on bail in all said cases-Plea of petitioner that story is unbelievable on account that petitioner after fleeing the spot went to his place from where he was arrested-Without making any observations on merits of case, considering that atleast prima-facie arguable points are involved in case, petition allowed.
Civil – Supreme Court–Bar of Civil Court Under RERA
Real Estate (Regulation and Development) Act (RERA)–Bar under Section 79–Section 79 RERA Act bars jurisdiction of a Civil Court to entertain any suit or proceeding in respect of any matter which Authority or adjudicating officer or Appellate Tribunal is empowered under RERA Act to determine-But Section 79 does not in any way bar Commission or Forum under provisions of Consumer Protection Act to entertain any complaint-A choice or discretion is given to allottee whether he wishes to initiate appropriate proceedings under Consumer Protection Act or file an application under RERA Act. (Para 25, 27 & 28) (2) Proviso to Section 71(1) RERA Act entitles a complainant who initiated proceedings under C.P Act before RERA Act came into force, to withdraw proceedings under CP Act with permission of Forum or Commission and file an appropriate application before adjudicating officer under RERA Act-Proviso thus gives a right or an option to concerned complainant but does not statutorily force him to withdraw such complaint nor do provisions of RERA Act create any mechanism for transfer of such pending proceedings to authorities under RERA Act. (Para 28)
M/S. IMPERIA STRUCTURES LTD vs ANIL PATNI AND ANOTHER .. CIVIL APPEAL NO. 3581-3590 OF 2020 .. Supreme Court .. 02.11.2020
Criminal – Supreme Court (Three Judges Bench)–Refusal to undergo Test Identification Parade
Refusal to undergo Test Identification Parade- Consequences-Finding of guilt cannot be based purely on refusal of accused to undergo an identification parade-There is no provision which compels investigating agency to hold or confers a right on accused to claim TIP–Since a TIP does not constitute substantive evidence, failure to hold it does not ipso facto make evidence of identification inadmissible-A TIP may lend corroboration to identification of witness in Court, if so required-In present case, presence of alleged eye-witnesses at scene of occurrence is seriously in doubt-Ballistics evidence connecting empty cartridges and bullets recovered from body of deceased with an alleged weapon of offence is contradictory and suffers from serious infirmities-Hence, in this backdrop, refusal to undergo TIP assumes secondary importance and cannot survive independently in absence of it being a substantive piece of evidence-Accused acquitted under section 302/34 IPC. (Para 36 to 39)
Rajesh @ Sarkari & Anr vs State of Haryana .. Criminal Appeal No.1648 of 2019 .. Supreme Court .. 03.11.2020
Criminal – PbHr (D.B)–Contradiction between ocular and medical evidence
Sections 302/307/325/34 IPC-Contradiction between ocular and medical evidence- Allegation that three accused caused injuries to deceased–As per prosecution version, accused no.2 hit with Gedala on head of deceased and accused no.3 gave blows with iron rod on head of deceased-But as per medical evidence, no lacerated wound or bruises found on body of deceased-All injuries are incised-Held, absence of any lacerated wound or bruises on body of deceased makes it clear that no injury caused either by iron rod or by Gedala-Story of prosecution doubtful-Accused no.2 and 3 acquitted.
Criminal – PbHr (D.B)–Section 302 IPC into 304 Part I IPC
Conversion of Section 302 IPC into 304 Part I IPC-Case of prosecution that accused and his father damaging the ‘watt’ in fields of deceased –Deceased objected to it and tried to refrain them from doing so-Accused gave a spade blow on head of deceased-Held, it was not a premeditated act-It was sudden fight in heat of passion upon a sudden quarrel-Accused gave only one single spade blow on head of deceased-He did not take any undue advantage or acted in a cruel or unusual manner- Conviction converted from Section 302 IPC to Section 304 Part I IPC.
Criminal – PbHr– acquittal of accused u/s 399/402
Section 25 Arms Act-F.I.R lodged u/s 399/402 IPC and 25 Arms Act-Trial Court acquitted accused u/s 399/402 but convicted u/s 25 Arms Act-Hence this appeal-Held, if same set of witnesses are disbelieved and accused acquitted for offences u/s 399/402, then same accused cannot be convicted for commission of offence u/s 25 Arms Act-Appeal allowed- Accused acquitted u/s 25 Arms Act.
Criminal – Supreme Court–it is for accused to explain as to what happened to deceased
Sec.302 IPC-Murder-No eye witness-Prosecution proved following circumstantial evidence-1-Motive–2–accused beating deceased and taking her away–3–Death of deceased is homicidal–4–Conduct of accused in not reporting to police about missing of deceased–5–Absence of explanation from accused about death of deceased-Furthermore, deceased was last seen alive in company of accused but he did not satisfactorily explain the missing of deceased-it is for accused to explain as to what happened to deceased-If accused does not throw light on the fact which is within his knowledge, his failure to offer any explanation would be a strong circumstance against him as per sec.106 Evidence Act-Convicted.
Civil – PbHr
Suit for permanent injunction against co-sharer–Once this fact is established that parties are co-sharers, question as to whether injunction can be granted or not is purely a legal question, which can be taken note by Court, even if no such plea raised in written statement-Suit dismissed.
