AHC Updates

1. [Evidence Act]

• Rajjan @ Yogesh Kumar v. State of U.P. (Criminal Appeal No. 309 of 1999)

Evidence Act – Last Scene Evidence – Place of Sighting – Nature – Time Gap - Relevancy

Following the recent judgement of Hon’ble Supreme Court i.e. Ravi v. State of Karnataka, AIR 2018 SC 2744, wherein the Hon’ble Supreme Court examined the concept of “Last Scene Evidence” in a case where gap of four days was involved, Hon’ble Allahabad High Court espoused upon the application of the above principle and tested its relevance in different circumstances and observed that gap of time between the last sighting of accused with the decease has to be read in accordance with the place of sighting.

 "“Last seen together” may be a conclusive circumstance depending upon the facts of a particular case. For instance, if two persons were last seen staying together in the night in a hotel room and next morning one was found to have been killed, the circumstance of last seen is enough conclusive and the burden to prove otherwise will certainly shift on the other person and in such case, unless otherwise is proved, the presence or absence of motive becomes insignificant. But if those two persons were seen traveling in a public transport and after more than 24 hours the other is found dead, the time gap will become relevant and some more incriminating evidence shall be required to corroborate the circumstance of last seen to complete the chain and prove the guilt."

2. [Contempt]

• Nirankar Pathak and Others v. Sri Ashish Goel, Posted As Prin. Secy. Basic Edu. Lko. & Ors. (Contempt No. 2622 of 2015)

Contempt – Nature of Proof – Two Interpretation of Order – Benefit – Contemnor 

As it has been held by the Hon’ble Apex Court in Ram Kishan versus Tarun Bajaj and Others, (2014) 16 SCC 204, that Contempt Proceedings are quasi-criminal in nature and therefore, the standard of proof is beyond reasonable doubt, Hon’ble Court opined that “manner of proof” differs from “standard of proof”, therefore, in case of the possibility of two interpretations of an order, the benefit must be given to the Contemnor.

"Thus, in cases where two interpretations of an order are possible and if the action is not contumacious, contempt proceedings are not maintainable and for this purpose the order must be read in entirety. It may also be noted that there is a difference between “standard of proof” and “manner of proof” in contempt proceedings. Contempt proceedings are sui generis in the sense that strict law of evidence and Code of Criminal Procedure are not applicable. However, the procedure adopted in the contempt proceedings must be fair and just."

3. [Family Law]

• Gulshan and Another v. Shahjahan (First Appeal No. 625 of 2015)

Guardian and Wards Act – Custody – Section 8 – Guardianship of Minor Girl – Death of Mother - Father is Natural Guardian

The Hon’ble Court examined Section 7 and 8 of the Guardian and Wards Act, 1890 to answer the question of whether a father can be given custody of a minor girl. It was observed by the Hon’ble Court that the section itself does not provide for any indicators for identifying the ideal guardian and the exceptions should be applied on the basis of facts. Considering that the mother of the child was no more and the father is the natural guardian of the child, the Hon’ble Court, without any hesitation, gave the custody of the minor girl to him.

"Neither in section 7 [n]or in section 8, there are any indicators which shall be followed by Court before making an order regarding appointment of a guardian. Similarly, Act, 1890 does not contain any provision, which provides the facts/circumstances which are required to be looked into before making an order appointing a guardian nor there is any such provision indicating facts and circumstances, which are required to be ignored by Court while passing an order regarding appointment of a guardian.

It is well established that father is natural guardian of minor. After death of mother, it is father who is entitled to guardianship of minor children. Therefore, in all probability, it is father who has to be appointed as guardian of minor. However, this rule is subject to certain exceptions. Such exceptions should be strong enough to deprive the father of guardianship of minor children."

4. [Criminal Procedure]

• Siya Ram Saran Aditya v. State of U.P. through C.B.I. and Others (U/s 482/378/407 No. 3855 of 2013)

Code of Criminal Procedure – Section 197 – Grant of Sanction – Public Servant – Power of Government to Review/Reconsider – Only on new material
 

Addressing the problem faced by public servants of the grant of sanction in old criminal matters, under Section 197 of Code of Criminal Procedure 1973, by the new Government, the Hon’ble Court observed their displeasure and questioned the concept of review on such exercise of power. As a result, the Hon’ble Court clarified that such sanction should not be permitted to be reviewed or reconsider unless some new material has surfaced.

"The power of review, however, is not unbridled or unrestricted. It seems to us sound principle to follow that once the statutory power under Section 19 of the 1988 Act or Section 197 of the Code has been exercised by the Government or the competent authority, as the case may be, it is not permissible for the sanctioning authority to review or reconsider the matter on the same materials again. It is so because unrestricted power of review may not bring finality to such exercise and on change of the Government or change of the person authorized to exercise power of sanction, the matter concerning sanction may be reopened by such authority for the reasons best known to it and a different order may be passed. The opinion on the same materials, thus, may keep on changing and there may not be any end to such statutory exercise.

However, in a case where fresh materials have been collected by the investigating agency subsequent to the earlier order and placed before the sanctioning authority and on that basis, the matter is reconsidered by the sanctioning authority and in light of the fresh materials an opinion is formed that sanction to prosecute the public servant may be granted, there may not be any impediment to adopt such course."

• Sub Inspector Parshu Ram Dohare and 5 Others v. State of U.P. through Private Secretary Home and 6 Others (Misc. Bench No. 1306 of 2005)

Criminal Procedure Code 1973 – Further Investigation – State Government empower to direct – But – Investigating Officer – Must inform the Court

In contrast to the earlier discussed judgement in this blog, in another case, the Hon’ble Court held that the Government has to power to direct for further investigation under Section 173(8) of Code of Criminal Procedure 1973 even if the Chargesheet has been submitted by the Police in the court. Following the judgment of the Hon’ble Apex Court, delivered in Amrutbhai Shambhubhai Patel ((2017) 4 SCC 177), the Hon’ble Court observed that State Government has to power to direct investigating authorities to further investigate but the Investigating Authority must do so by informing the Court.

"In such circumstances, we have no hesitation in holding that once an Investigating Agency has submitted a police report/charge sheet under Section 173(2) Cr.P.C. and the court has taken cognizance of the offence, the State Government is competent enough to pass an order directing for further investigation by another Investigating Officer without taking leave from the court concerned, but it is the duty of the Investigating officer to inform the Court before going ahead in pursuance of the order of the State Government for further investigation."

5. [Other Laws]

• Ram Nivas v. State of U.P. through Secretary and 3 Others (Writ C No. 68915 of 2014)

Land Acquisition Act 1894 – Section 6 – Collector – Assistant Collector – Different – Power to Adjudicate Objections against Acquisition – Only with Collector

The Division Bench of Hon’ble Mr Justice Pankaj Mithal and Hon’ble Mr Justice Saral Srivastava had to answer the question whether Assistant Collector can exercise the power of Collector under the Section 6 of Land Acquisition Act 1894 for deciding the objections against the acquisition. The Hon’ble Court examined the definition of Collector given under the General Clauses Act 1897 and provisions of the Land Acquisition Act 1894 and arrived to the conclusion that Assistant Collector is not a Collector but rather a Revenue Officer subordinate to the Collector. Therefore, it cannot exercise the powers of Collector as given under the Land Acquisition Act 1894 even if the Government issues a notification and confers him with such power.

"In other words, in addition to the Collector and the Additional Collector an Assistant Collector of the First Class can discharge the functions of the Collector under the Code if he is so empowered by the State Government by a notification, such Assistant Collector however is not entitle to discharge any other functions of the Collector other than those under the Code such as those conferred upon the Collector under the other Acts including the Act.

In view of the aforesaid facts and circumstances, an Assistant Collector of the First Class is not entitle to function as Collector unless he is so notified by the Collector. Secondly, even if he is so notified he can only discharge functions of the Collector under the Code and not those that are conferred upon the Collector under the other Acts."

• Uday Pratap Singh @ Harikesh v. State of U.P. and Others (Writ C No. 24902 of 2019)

U.P. Panchayat Raj Act 1947 – Section 27 – Prescribed Authority – Recovery – Loss or Waste or Misapplication of Money or Property – District Magistrate – Not Empowered

In another matter, a similar question, much like the one in discussed in the earlier judgement discussed in this Blog, arose wherein it was to be adjudicated whether the District Magistrate is empowered to effect recoveries in respect of loss, waste or misapplication of money or property of the Gram or Nyay Panchayat under Section 27 of Uttar Pradesh Panchayat Raj Act 1947. The expression Prescribed Authority is defined by Section 2 (q) (ii) of the Act to be the authority notified as such by the State Government whether generally or for any particular purpose. On account of District Magistrate not being notified under the said provision, the Hon’ble Court observed that:

"The primary question issue which immediately arises is whether the District Magistrate has been duly notified to be the “Prescribed Authority”. The unequivocal answer to that question must be in the negative. The State has been unable to place for the consideration of the Court any notification in terms of which the District Magistrate may have been specified or designated as the “Prescribed Authority”."