Leave to criminal appeal not automatic, can only be granted after application of mind: Kerala HC - The Daily Guardian
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Leave to criminal appeal not automatic, can only be granted after application of mind: Kerala HC

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Without mincing any words and without leaving any scope for doubt, the Kerala High Court in a recent, robust, refreshing and rational judgment titled State of Kerala v. Ratheesh & Anr. in CRL. L. P. No. 79 of 2022 delivered on February 28, 2022 has made it absolutely clear that leave to a criminal appeal can only be granted after proper application of mind by the Court to see if arguable points have been raised in the appeal. This certainly must be adhered to. It must be mentioned here that the single Judge Bench comprising of Justice Kauser Edappagath of Kerala High Court held so while referring to the decision in the case of State of Maharashtra v. Sujay Mangesh Povarekar [(2008) 9 SCC 475] where it was held that in deciding if leave should be granted, the High Court must apply its mind and consider whether a prima facie case has been made out or arguable points have been raised.

To start with, this brief, brilliant and balanced judgment authored by the single Judge Bench comprising of Hon’ble Dr Justice Kauser Edappagath of Kerala High Court first and foremost after hearing the criminal leave petition and arguments from both sides then puts forth in para 1 that, “Dated this the 28th day of February, 2022 This Criminal Leave Petition has been filed by the State seeking leave to prefer appeal against the judgment of acquittal dated 28.3.2018 in C.C.No.1210/2014 passed by the Judicial First Class Magistrate Court, Sasthamcotta.”

As we see, the Bench then states in para 2 that, “The respondent Nos. 1 and 2 herein are the accused Nos. 2 and 3 respectively in C.C.No.1210/2014. They along with the accused No.1 were tried for the offences punishable under Sections 341, 294(b), 323, 324, 506(ii) read with 34 of IPC.”

Of course, the Bench then mentions in para 3 that, “The prosecution case in short is that on 31.1.2014 at 2.15 pm, accused Nos.1 to 3 in furtherance of their common intention attempted to restrain CW1(PW1) and local people from using the pathway proceeds through eastern side of the property owned by the accused towards northern side. When PW1 questioned the said act, the accused No.1 with an axe gave a blow on the head of PW1, the accused No.2/1st respondent herein hit on the back of PW1 with a stick and the accused No.3/2nd respondent herein uttered obscene words towards PW1 and threatened to cause death.”

Truth be told, the Bench then reveals in para 4 that, “The court below after a full-fledged trial found that the prosecution established the guilt against the accused No.1 only, that too, under Section 324 of IPC alone. Accordingly, he was convicted for the said offence. The accused Nos. 2 and 3 who are the respondent Nos. 1 and 2 herein were found not guilty of all the offences charged against them and they were acquitted. The accused No.1 was sentenced to undergo simple imprisonment till the rising of court and to pay a fine of Rs.10,000/- in default to undergo simple imprisonment for one month.”

Needless to say, the Bench then mentions in para 5 that, “Now this Criminal Leave Petition has been filed by the State to grant special leave to prefer appeal against the acquittal of the accused Nos.2 and 3.”

Furthermore, the Bench then discloses in para 7 that, “The learned counsel for the 1st respondent Sri. Kaleeswaram Raj submitted that the court below after analysis of evidence found that the prosecution failed to prove the case as against the accused Nos.2 and 3 and accordingly they were acquitted. The counsel further submitted that the petitioner has not made out a prima facie case or failed to raise even an arguable point so as to grant leave. The learned counsel also pointed out that the 1st respondent got an employment as Police Constable and he also underwent training and his appointment is denied only on account of the pendency of this Criminal Leave Petition. Per contra, the learned Public Prosecutor Smt. Sheeba Thoma submitted that there are sufficient evidence to prove the guilt of the accused Nos. 2 and 3 and the court below was not correct in acquitting the accused. She further submitted that prosecution witnesses, PW1 to PW5 clearly deposed the overt act of the accused Nos. 2 and 3. The prosecutor also submitted that prima facie case has been made out so as to grant leave.”

To put things in perspective, the Bench then envisages in para 8 that, “The definite case of the prosecution is that the accused No.2 used stick to beat PW1. No serious overt act has been alleged against the accused No.3. The allegation as against her is that she only uttered obscene words against PW1 and criminally intimidated her. The learned counsel for the 1st respondent Sri. Kaleeswaram Raj invited my attention to the paragraph ‘8’ of the judgment of the court below wherein it was found that even though in the 161 statement of PW2 to PW5, they specifically stated that the accused No.2 has used only stick to assault PW1, but at the dock they stated that the accused used an iron rod to assault PW1. This vital contradiction has been brought out in cross examination as well. That apart, PW2 to PW5 could not say from where the accused No.2 got the weapon to assault PW1. The learned counsel also invited my attention to the medical evidence at paragraph ‘13’ of the judgment. The court below found that there is no medical evidence to support any injury upon the back of PW1’s body and hence there is no clarity regarding, through what means the accused No.2 caused hurt to PW1. As against the accused No.3 also there are no sufficient evidence. I am of the view that the court below has correctly appreciated the evidence of PW1 to PW5 who are loyal to the prosecution and found that no convincing evidence has been brought out to connect the accused Nos. 2 and 3 with the crime. That apart, as stated already, the accused No.2 has got appointment as Police Constable in the Kerala Police. It is borne out from the records that he underwent training also. But he was denied appointment in view of the pendency of this Criminal Leave Petition. The 1st respondent has challenged the same before the Kerala Administrative Tribunal (KAT) in O.A.No.1266/2018. The KAT disposed of the said OA as per order dated 1.11.2021, with a direction to the Additional Director General of Police (ADGP), Intelligence, Police Head Quarters, Vazhuthacaud, Thiruvananthapuram to submit a report regarding the character and antecedents of the accused No.2 to the Government within two weeks from the date of receipt of a copy of the order. A further direction was given to the Government to pass orders on the suitability of the accused No.2 for appointment. The learned counsel for the 1st respondent submits that due to the pendency of this Criminal Leave Petition, the ADGP is not passing any order and virtually employment to the 1st respondent is denied.”

While citing the relevant case law, the Bench then expounds in para 9 that, “The Apex Court in State of Maharashtra v. Sujay Mangesh Poyarekar [(2008) 9 SCC 475] has held that, “in deciding the question whether requisite leave should or should not be granted, the High Court must apply its mind, consider whether a prima facie case has been made out or arguable points have been raised and not whether the order of acquittal would or would not be set aside.” It was further held that, “it cannot be laid down as an abstract proposition of law of universal application that each and every petition seeking leave to prefer an appeal against an order of acquittal recorded by a trial court must be allowed by the appellate court and every appeal must be admitted and decided on merits. But it also cannot be overlooked that at that stage, the court would not enter into minute details of the prosecution evidence and refuse leave observing that the judgment of acquittal recorded by the trial court could not be said to be “perverse” and, hence, no leave should be granted.” The above decision has been followed by the Apex Court in State of Maharashtra v. Shankar Ganapati Rahatol & Others [(2020) 11 SCC 608].”

Finally and as a corollary, the Bench while continuing in the same vein then in same para 9 then concludes by holding clearly, cogently and convincingly that, “For these reasons recorded above, I am of the view that the petitioner/State has failed to make out a prima facie case or even arguable case. Hence the leave sought for is declined.”

In conclusion, the Kerala High Court has made it crystal clear that leave to criminal appeal is not automatic. It was also made absolutely clear that leave to criminal appeal can be granted only after application of mind. This is what is desired also and so all the courts must comply with accordingly in all such cases!

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Supreme Court seeks response of Union and states on plea for guidelines to prevent sexual harassment of students in schools

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The Supreme Court in the case Nakkheeran Gopal v UOI & Or’s observed that any kind of harassment including the sexual harassment being carried out at educational institutions The Court while allowing the writ petition issued a notice seeking protection of children.

The plea stated that there is a vicarious liability upon the State Government to implement any law for the well-being and also for the protection of the children in their respective states.

the petition states that to implement any law for the well-being of children and also for the protection of the children in their respective states, it is the responsibility of the State Government and the plea further mentioned that it the vicarious liability of the State Government and It will be considered the lapse on the part of the State Government if there is Any lapse on the part of the educational institution as it remains a crucial department in the State Government With respect to the relevant organization, including Educational Institution, stated in the plea before the court.

The petitioner argued that till date no specific mandate or the law or the guidelines have been issued by the respective States and inspire of alarming rate in the offence against the children especially at school premises.

The petition further states with this regard that children can also themselves be coerced into becoming tools in furtherance of illegal and dangerous activities and under this circumstance the Increased online time can lead to grooming and both online and offline exploitation.

It is essential to ensure the constitutional right to dignity of children provided under Article 21 of the Constitution of India, while protecting children against sexual abuse when they are exposed to predators, which is compromised, stated by the petitioner in the plea.

The petition states that it indicates immediate concerns and measures for intervention are of paramount significance and further the court stated that this calls for the implementation of legislative actions and community-based interventions through virtual media to prevent a further rise in the statistics and to ensure child protection and when the safety of the children is at stake especially at educational institutions which is supposedly to be the safest shelter, and that too during this tough time. As it is necessary to Protecting the basic rights of children and is of utmost concern as otherwise there will be a posting of a substantial threat to the future and this would leave a regressive impression.

It is the fundamental right of the children under Constitution of India to engage and study in an environment when he/ she feels safe from any kind of emotional or physical abuse and is free, further being argued in the petition.

The bench comprising of Justice Indira Banerjee and the Justice CT Ravikumar observed and sought responses of the Union and the States for guidelines for the educational institutions for the protection of the children and also for the enforcement of the fundamental rights of Children at the educational institutions.

It is essential to ensure the constitutional right to dignity of children provided under Article 21 of the Constitution of India, while protecting children against sexual abuse when they are exposed to predators, which is compromised, stated by the petitioner in the plea.

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IN MEDICAL NEGLIGENCE COMPENSATION CLAIMS, MCI FINDINGS REGARDING DOCTORS’ PROFESSIONAL CONDUCT HAVE GREAT RELEVANCE: SC

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The Supreme Court in the case Harnek Singh vs Gurmit Singh observed while considering medical negligence compensation claims that the findings of the report of Medical Council of India on professional conduct of doctors are relevant.

from the date of SCDRC order as compensation thereafter the court directed the Respondents to pay to the complainants a total amount of Rs. 25,00,000 with interest @ 6% per annum. the complainants have made out a case of medical negligence against Respondents 1 and 2 and are entitled to seek compensation on the ground of deficiency of service and the court hold that the decision of the NCDRC deserves to be set aside. in reversing the findings of the SCDRC and not adverting to the evidence on record including the report of the MCI, the court is of the opinion that the NCDRC has committed an error. The case of medical negligence leading to deficiency in his services, the above-referred findings of the MCI on the conduct of Respondent 1 leave no doubt in our mind that this is certainly, observed by the bench.

The bench further observed that he opinion and findings of the MCI regarding the professional conduct of Respondent 1 have great relevance while referring to the contents in the report of MCI.

The issue raises in the above-mentioned case is weather a professional negligence is established by the complainant as per the standards governing the duty to care of a medical practitioner on the part of Respondent As the NCDRC gave its decision without referring to the MCI finding the complainants/appellants submitted, in an appeal submitted by the Apex Court. this complaint got summarily disposed of and they filed appeals before Medical Council Of India The Ethics Committee of MCI held one doctor medically negligent and issued a strict warning to be more careful during the procedure and to be more diligent in treating and monitoring his patients during and after the operation he complainants had also made a complaint to the Punjab State Medical Council against the professional misconduct of the doctors, hospitals, surgeons, While the proceedings were pending before the SCDRC.

the complaint and two among the opposite parties were allowed by SCDRC to directly pay Rs. 15,44,000 jointly and severally and Rs. 10,000 as costs as the appeal was allowed by The National Consumer Disputes Redressal Commission of these opposite parties and set aside the order of the SCDRC holding that negligence was not proved by the complainants.

The bench comprising of Justice UU Lalit, justice S. Ravindra Bhat and the justice PS Narasimha also observed and contended the question of intention does not arise that in the proceedings for damages due to professional negligence.

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WHERE THE CLAIMS OF EVENTS HAVE BEEN SUCCESSFULLY ESTABLISHED BY THE PROSECUTION, SECTION 106 OF THE EVIDENCE ACT APPLIES TO CASES: SUPREME COURT

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The Supreme Court in the case Sabitri Samantaray vs State of Odisha observed here chain of events has been successfully established by the prosecution, from which a reasonable inference is made out against the accused, the Section 106 of the Indian Evidence Act applies to cases.

in light of Section 106 of the Evidence Act the High Court rightly observed that as how the deceased lost his life and the onus was now on the appellants to disclose further the court observed that the appellants have failed to offer any credible defense in this regard and it can be deduced that the entire sequence of events strongly point towards the guilt of the accused appellants the burden was on the appellants to prove it otherwise as once the prosecution had successfully established the chain of events.

in the light of the statements made by all the sets of witnesses, with such an intention when analyzed and the fatal injuries sustained by the deceased at the relevant place and time further the court contended while dismissing the plea that it certainly makes out a strong case that death of the deceased was indeed caused by the appellants. in establishing intention of the accused-appellants for the commission of the offence, the prosecution has succeeded, the Court notice.

whenever an incriminating question is posed to the accused and he or she either evades response, or offers a response which is not true, in a case based on circumstantial evidence then in the chain of events such a response in itself becomes an additional link, when a case is based on circumstantial evidence As Section 106 of the Evidence Act from its burden to establish the guilt of an accused is in no way aimed at relieving the prosecution. where chain of events has been successfully established by the prosecution, it only applies to those cases from which a reasonable inference is made out against the accused.

the Section 106 it merely prescribes that when an individual has done an act and in no way exonerates the prosecution from discharging its burden of proof beyond reasonable doubt Thereafter the onus of proving that specific intention falls onto 9 the individual and not on the prosecution. If the accused had a different intention than the facts are specially within his knowledge which he must prove, with an intention other than that which the circumstances indicate. As the Section 106 of the Evidence Act postulates that the burden of proving things which are within the special knowledge of an individual is on that individual. Although the Section in no way exonerates the prosecution from discharging its burden of proof beyond reasonable doubt, observed by the Bench as the said provisions Since it is all based upon the interpretation of Section 106 Evidence Act, the contentions of either

the bench comprising of CJI NV Ramana, Justice Krishna Murari and the justice Hima Kohli observed and contended whenever an incriminating question is posed to the accused and he or she either evades response or that which being offers a response is not true then such a response in itself becomes an additional link in the chain of event, in a case based on circumstantial evidence.

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A candidate has no legal right to insist that the recruitment process set in motion be carried to its logical end: SC

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The Supreme Court in the present case Employees State Insurance Corporation vs Dr. Vinay Kumar observed that the recruitment process set in motion be carried to its logical end as the candidate does not have a legal right to insist.

The bench directed the Corporation-appellants to take a decision regarding whether to complete the recruitment process, bearing in mind all relevant aspects within a period of two months, while allowing the appeal further it stated there is however no doubt from holding that the employer is free to act in an arbitrary manner.

A recruitment process which is set in motion be carried to its logical end candidate who has applied does not have a legal right to insist that Even in the select list may not clothe the candidate with such a right and that too even in the inclusion of a candidate.

A recruitment process carried to its logical end and the process set in motion, the candidate who applied does not have the legal right and thereafter the court further contended that the cardinal principle we must bear in mind is that this is a case of direct recruitment, observed by the bench.

The Court further said that it is quite likely that any candidate who may have being desirous of applying, may not have applied being discouraged by the fact that the advertisement has been put on hold and by agreeing with the applicant the court contended and said that the direction to conclude the proceedings within 45 days is unsupportable.

The recruitment process set in motion be carried to its logical end and the Candidate who has applied does not have a legal right to insist the recruitment process.

The ground raised by the appellants for not proceeding with the procedure of direct recruitment is untenable, the respondent contended before the court and on the other hand on account of certain developments which took place, there may really be no need to fill up the post of Associate Professor and the respondent may not have a right as such, the appellant contended before the Apex Court.

The High Court which dismissed the writ petition filled by the Corporation and it directed the Corporation to conclude the process positively within a period of 45 day. the Corporation filed appeal before the Apex Court, Aggrieved with this direction.

The bench comprising of Justice KM Joseph and the justice Hrishikesh Roy observed that Even inclusion of a candidate in the select list may not clothe the candidate with such a right and it does not mean that the employer is free to act in an arbitrary manner, the bench clarified.

The recruitment process set in motion be carried to its logical end and the Candidate who has applied does not have a legal right to insist the recruitment process.

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ON THE PLEA TO STAY THE RETIREMENT OF EXISTING MEMBERS UNTIL THE ACTUAL JOINING OF NEW MEMBERS, SUPREME COURT ISSUES NOTICE

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The Supreme Court in the case Central Administrative Tribunal (Principal Bench) Bar Association, New Delhi v Union of India & Or’s observed in a petition till all the vacancies which arose from 2019-2022 are filled by actual joining of candidates by putting a stay on the impending retirement of all the existing Judicial/ Administrative Members of CAT the court further issued the notice.

In the plea it was stated in the petition that although 35 Judicial Members including the Chairman and 35 Administrative Members cater to 19 benches and 8 circuit benches, many benches of the Tribunals have become non functional because of the retirement of members at regular intervals as it was Preferred by Central Administrative Tribunal (Principal Bench) Bar Association, New Delhi.

Furthermore, the petition stated the Jabalpur Bench, Cuttack Bench, Lucknow Bench, Jammu and Srinagar Bench are left with only one member either Judicial or Administrative because of which no division bench can be constituted there. As on 31st March, 2022, the Guwahati Bench has become totally non-functional as no Member is available there.

Justice Chandrachud stated by taking a note of the above submissions:

A bench can’t be constituted with one member.

Justice Chandrachud further asked to submit an up-to-date chart with regards to the number of members who are present in the various benches of CAT and ordered the counsel for the Central Administrative Tribunal (Principal Bench) Bar Association, New Delhi to do the same.

Justice Kant further added by taking a note of the above submissions:

The members whose term is likely now to expire in Future, give the details of those members.

The benches of the Central Administrative Tribunal will become non-functional if the aforesaid situation continues for a couple of more months, more than half of the sanctioned stated in the plea.

AOR Amita Singh Kalkal, has filled a plea before the Supreme Court.

The bench of comprising of Justice DY Chandrachud and the justice Surya Kant by making a note of the above submissions ordered to issue a notice and in addition the liberty to serve the Central Agency.

The bench ordered to comply with the same and listed the matter on 13th May.

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Supreme Court upholds disciplinary action against judicial officers for showing undue favour to a party in the worst kind of judicial dishonesty

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The Supreme Court in the case Muzaffar Hussain versus State of Uttar Pradesh observed a judicial officer in Uttar Pradesh for passing orders to unduly favour certain parties for taking against the disciplinary action.

The High Court reduced the punishment as curtailment of pensionary benefits by 70% and refused to interfere with the findings and the officer approached the Supreme Court for Challenging the High Court’s verdict.

A writ petition was filed before the High Court challenging the punishment by the officer. In 2005, the Allahabad High Court initiated disciplinary enquiry against him for misconduct and found the charges to be proved. On the recommendation made by the Full Court, the State of Uttar Pradesh imposed a punishment of curtailment of his pensionary benefits by 90% to join the Central Administrative Tribunal as a judicial member in 2003, the officer took Voluntary Retirement from Service.

Supreme Court observed while dismissing the appeal that the appellant had misconducted himself while discharging his duties as a judicial officer and there was enough material and evidence to show that. to unduly favour the subsequent purchasers of the acquired lands who had no right to claim compensation, and that such orders were actuated by corrupt motive, and had passed the judicial orders in utter disregard of the specific provisions of law.

The bench of Justice Bela Trivedi, an judgement authored noted:

the public servants are like fish in the water, none can say when and how a fish drank the water”. A judge must decide the case on the basis of the facts on record and the law applicable to the case and if he decides a case for extraneous reasons, then he is not performing his duties in accordance with law. As often quoted, a judge, like Caesar’s wife, must be above suspicion. The extraneous consideration for showing favour need not always be a monetary consideration further she said that In our opinion, showing undue favour to a party under the guise of passing judicial orders is the worst kind of judicial dishonesty and misconduct.

while being the Additional District Judge at Agra during 2001 to 2003, the officer named Muzaffar Hussain and the charge was that in a batch of land acquisition matters in violation of settled principles in order to unduly favour certain subsequent purchasers had exorbitantly enhanced the compensation.

Thereafter the Apex Court added that under Article 235 of the Constitution of India the High Court had perfectly justified in exercising its supervisory jurisdiction, under these circumstances.

The division bench comprising of justice DY Chandrachud and the justice Bela M Trivedi observed under the guise of passing judicial orders is the worst kind of judicial dishonesty and misconduct and that showing undue favour to a party.

The Court stated, the case must be decided by the Judge on the basis of the law applicable to the case and the facts on record. He is not performing his duties in accordance with law if he decides the case or extraneous reasons.

Supreme Court observed while dismissing the appeal that the appellant had misconducted himself while discharging his duties as a judicial officer and there was enough material and evidence to show that. to unduly favour the subsequent purchasers of the acquired lands who had no right to claim compensation, and that such orders were actuated by corrupt motive, and had passed the judicial orders in utter disregard of the specific provisions of law.

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