While dispelling all misgivings and question marks raise over whether Section 482 CrPC plea is maintainable or not to quash proceedings which are ex facie bad for want of sanction, the Allahabad High Court has in a learned, laudable, landmark and latest judgment titled Mahendra Pal Singh Lekhpal And Another v. State of U.P. and Another in Application U/S 482 No. – 15266 of 2007 delivered as recently as on January 10, 2022 observed that an application under Section 482 CrPC is maintainable to quash the proceedings, which are ex facie bad for want of sanction as required under Section 197 of CrPC (Prosecution of Judges and public servants). In holding so, the Bench of Justice Chandra Kumar Rai has set aside a summoning order passed by the Judicial Magistrate Farrukhabad against a Lekhpal (applicant number 1) and a Kanoongo (applicant number 2) in the Consolidation department (both public servants) without obtaining necessary sanction as provided under Section 197 of CrPC. Very rightly so!
To start with, this noteworthy judgment authored by a single Judge Bench of Justice Chandra Kumar Rai sets the ball rolling by first and foremost observing in para 1 that, “The instant application under Section 482 Cr.P.C. has been filed to quash the summoning order dated 14.03.for demarcation.2007 passed by Judicial Magistrate IIIrd, Room No.12 Farrukhabad in complaint case No.28 of 2006 (Siya Ram Vs. Mahendra Pal and others).”
While elaborating on the facts of the case, the Bench then envisages in para 2 that, “The brief facts of the case are that applicant No.1 is a Lekhpal in the Consolidation department and applicant No.2 is a Kanoongo in the Consolidation department and both are the public servants. During consolidation proceedings, a joint plot was allotted to opposite party No.2 and one Ram Singh. Opposite party No.2 filed an application on 28.08.2006 before Settlement Officer of Consolidation for making measurement of plot No. 372. The Settlement of Consolidation Officer by order dated 29.08.2006 directed the Consolidation Officer to make measurement in accordance with law.”
While continuing in the same vein, the Bench then enunciates in para 3 that, “In pursuance of the order of Settlement Officer of Consolidation dated 29.08.2006, necessary reports were submitted by Consolidation authorities and applicant Nos. 1 and 2 on 15.11.2006 conducted measurement of disputed plots with the help of local police and submitted their report before the Assistant Consolidation Officer. The report dated 15.11.2006 has been annexed as Annexure No.2 to the affidavit accompanying with the present application, in which it is mentioned that measurement has been taken place taking due care of the crop standing in the disputed plot. Opposite party No.2 filed a complaint on 27.11.2006 before the Judicial Magistrate, Farrukhabad with the allegation that applicant Nos.1 and 2 have illegally made measurements of the plot, in which crops were standing and there was an order dated 15.11.2006 to stop the measurement,2 the2 copy of the complaint has been annexed as Annexure No.3 and order dated 15.11.2006 has been annexed as Annexure No.4 to the affidavit. The Judicial Magistrate IIIrd, Room No.12, Farrukhabad by order dated 14.03.2007 summoned the applicant under Section 427 IPC, without considering the facts that applicants are public servant and they were discharging their official duties.”
As we see, the Bench then points out in para 4 that, “This case was listed on 10th July, 2007 and following order was passed on that date:
“Heard the learned counsel for the applicants and the learned A.G.A.
It is contended by the learned counsel for the applicants are the lekhpal and Kanoono respectively. They have made measurement of the land on the basis of the order passed by the C.O. concerned. They have discharged their duties and the allegations against them are false and frivolous.
Issue notice to O.P. No.2 returnable within four weeks.
In view of the facts and circumstances, further proceedings of complaint case No.28 of 2006 pending in the Court of Judicial Magistrate, III Room No.12 Farrukhabad, shall remain stayed till the next date of listing. List after four weeks”
Be it noted, the Bench then makes no bones about the irrefutable fact which it states in para 11 that, “There is no dispute about the fact that applicants are public servants and further they were discharging their official duties, as such the arguments advanced by the learned counsel for the applicants that private complaint against the public servant for want of sanction would vitiate criminal proceeding has got substance.”
Needless to say, the Bench then stipulates in para 13 that, “The object of sanction for prosecution whether under Section 197 of the code of criminal procedure is to protect a public servant discharging official duties and functions from harassment by initiation of frivolous criminal proceeding.”
While citing the relevant case law, the Bench then mentions in para 14 that, “The Hon’ble Supreme court in a case of Matajog Dubey vs. H. C. Bhari AIR 1956 SC 44 has held:
“…..Public servants have to be protected from harassment in the discharge of official duties while ordinary citizens not so engaged do not require this safeguard…………There is no question of any discrimination between one person and another in the matter of taking proceedings against a public servant for an act done or purporting to be done by thhe public servant in the discharge of his official duties. No one can take such proceedings without such sanction…..”.”
While citing yet another relevant case law, the Bench then states in para 15 that, “In Pukhraj vs. State of Rajasthan and another (1973 2 SCC 701), the Hon’ble Supreme Court has held:
“2…..While the law is well settled the difficulty really arises in applying the law to the facts of any particular case. The intention behind the section is to prevent public servants from being unnecessarily harassed. The section is not restricted only to cases of anything purported to be done in good faith, for a person, who ostensibly acts in execution of his duty still purports so to act, although he may have a dishonest intention. Nor is it confined to cases where the act, which constitutes the offence, is the official duty of the official concerned. Such an interpretation would involve a contradiction in terms, because an offence can never be an official duty. The offence should have been committed when an act is done in the execution of duty or when an act purports to be done in execution of duty. The test appears to be not that the offence is capable of being committed only by a public servant and not by anyone else, but that it is committed by a public servant in an act cone or purporting to be done in the execution of duty The section cannot be confined to only such acts as are one by a public servant directly in pursuance of his public officer, though in excess of the duty or under a mistaken belief as to the existence of such duty. Nor need the act constituting the offence be so inseparably connected with the official duty as to form part and parcel of the same transaction.
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What is necessary is that the offence must be in respect of an act done or purported to be done in the discharge of an official duty.
It does not apply to acts done purely in a private capacity by a public servant. Expressions such as the ‘capacity in which the act is performed’, ‘cloak of offence’ and ‘professed exercise of the office’ may not always be appropriate to describe or delimit the scope of section. An act merely because it was done negligently does not cease to be one done or purporting to be done in execution of a duty…..”.”
It is worth noting that the Bench then candidly observes in para 16 that, “Every offence committed by different officer does not attract section 197 of the Code of Criminal Procedure. The protection given under Section 197 of the Criminal Procedure Code has its’ limitation. The protection is available only when alleged act done by the public servant is reasonably connected with the discharge of his official duty, an offence committed outside the scope of the duty of the public servant would certainly not require sanction. If in doing official duty public officer if committed any mistake or has been summoned in excess of duty even then the sanction of the Government as provided under Section 197 of the Criminal Procedure Code is mandatory.”
It is quite noteworthy that the Bench then elucidates in para 18 noting that, “On the point of stage at which trial court has to examine sanction question Hon’ble Supreme Court in D.T. Virupakshappa Vs. C. Subash, AIR 2015 12 SCC 231 has held that High court had erred in not setting aside an order of trial court taking cognizance of a complaint in exercise of power under Section 482 Cr.P.C.”
More significantly, the Bench then hastens to add in para 19 holding that, “The Hon’ble Supreme Court in the case of D. Devaraja vs. Owais Sabeer Hussain reported in [2020 (113) ACC and 904] has held that if the sanction as provided under Section 197 of Criminal Procedure Code has not been taken, the order taking cognizance by the Magistrate will be illegal and the High Court should exercise the power under Section 482 Cr.P.C. to quash the proceeding which was bad for want of sanction.”
Most significantly, the Bench then minces no words to state succinctly in para 20 that, “On the basis of law laid down by Hon’ble Supreme Court as mentioned above, it is well settled that an application under Section 482 Cr.P.C. is maintainable to quash the proceedings, which are ex facie bad for want of sanction. If, on the face of complaint, the act alleged appears to have a reasonable relationship with official duty power under Section 482 Cr.P.C. would have to be exercised to quash the proceedings to prevent abuse of process of Court.”
Finally and far most significantly, the Bench then concludes by holding elegantly, eloquently and effectively in para 21 that, “In view of the facts and circumstances stated above, I am of the view that learned Magistrate has illegally taken cognizance of the offence summoning the applicants under section 427 IPC, which is ex facie bad for want of sanction. The application under Section 482 Cr.P.C. is allowed. The summoning order dated 14.03.2007 passed by the Judicial Magistrate IIIrd Room No.12 Farrukhabad in complaint case No.28 of 2006 is set aside and complaint is also quashed for want of sanction in exercise of power under Section 482 Cr.P.C. No order as to costs.”
In conclusion, this notable judgment by a single Judge Bench of Justice Chandra Kumar Rai of Allahabad High Court leaves not even an iota of doubt to make it crystal clear that Section 482 plea is maintainable to quash proceedings which are ex facie bad for want of sanction. All the courts must abide and adhere by what the Allahabad High Court has held so explicitly in this leading case and act accordingly as directed in this leading case! No denying or disputing it!
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Electricity connection cannot be denied only because dispute regarding ownership of land is pending: Gujarat High Court
The bench of Justice Supehia noted that the Petitioners were owners of the concerned agricultural land for which electricity was sought. However, it was observed that the electricity was denied on the ground that the Petitioners were illegally occupying Government land.
The Gujarat High Court in the case Yogesh Lakhmanbhai Chovatiya v/s PGVCL Through the Deputy Manager observed and has clarified that occupiers of a land cannot be denied electricity connection only because a dispute regarding ownership of the land is pending.
The bench comprising of Justice AS Supehia observed and referred to a division bench judgment stating that right and title and ownership or right of occupancy has no nexus with grant of electrical connection to a consumer.
In the present case, the petitioner current occupiers of the land and submitted that they were denied an electricity connection only because the land that they were occupying was in the name of the Government. However, the proceedings were initiated by the Mamlatdar against them u/s 61 of the Gujarat Land Revenue Code for removal of encroachment. Further, to bolster their contention, it was relied by the petitioner on an order of the High Court and Sec 43 of the Electricity Act, 2003 which mandates the supply of electricity to any occupier or owner of premises.
The Petitioners could be said to be ‘occupier’ of the land in question and the connection could not be denied by the Respondent.
The bench of Justice Supehia noted that the Petitioners were owners of the concerned agricultural land for which electricity was sought. However, it was observed that the electricity was denied on the ground that the Petitioners were illegally occupying Government land.
Further, the bench of Justice Supehia concluded while perusing Sec 43 that the provision stipulated that the licensee shall supply electricity to those premises where the application had been filed by the owner or the occupier. Consequently, a reference was made to the order of the Division Bench of the High Court in LPA No. 91/2010 wherein it was observed:
The Court stated that such power being not vested under the law with the company and as the company cannot decide the disputed question of right and title and this court is of the view that ownership or right of occupancy has no nexus with grant of electrical connection to a consumer.
While keeping in view of the aforesaid provisions, it was directed by Justice Supehia that the Respondent-Company to supply electricity connection to the Petitioners in the premises of the property at the earliest in accordance with the list maintained by the name containing the names of the Petitioners in the list.
ANALYSIANG SECTION 194R OF THE INCOME TAX ACT
Recently, Section 194 R was inserted by the Finance Act 2022, which came into effect on July 1st, 2022. CBDT made certain recommendations via Circular 12 from the day of the addition of this section, it has become highly debatable. Before touching the issues of this section, we need to understand the legal provision of section 194 R.
In simple terms, the new section mandates a person who is responsible for providing any benefit or perquisite to a resident to deduct tax at source at 10% of the value or aggregate value of such benefit or perquisite before providing such benefit or perquisite. The benefit or perquisite may or may not be convertible into money, but it must result from such resident’s business or professional activities. As per this section, tax will be deducted by business or profession on any benefits or perquisites of a person who is residing in India. The benefit or perquisite can be in the form of cash or kind, or partially in cash and partially in kind. Tax deduction will be 10 percent if the aggregate value doesn’t exceed INR 20,000. In such a case, tax will not be deducted. Such conditions will not be applicable in If the turnover of business doesn’t exceed INR One Crore, If the turnover of the profession doesn’t exceed INR fifty lakhs, For instance, if a person is a sales agent and he exceeds the target allotted by the company and receives a new car worth INR 5, 00,000/-the value of INR 5,00,000 will be taxed under the head of Profit.
The intention of this section is to expand the scope of deducting tax on benefits or perquisites and to increase transparency in the reporting of benefits and perquisites received by an individual. Because this particular incentive is in kind rather than cash, recipients of such kinds of transactions do not include it in their income tax return. As a result, inaccurate income information is provided. Such an incentive or bonus in kind ought to ideally be reported as income under the 1961 Income-tax Act (ITA). Also, according to Section 28(iv) of the ITA, any benefit or perk received from a business or profession, whether convertible into money or not, must be reported as business income in the hands of the receiver. Now Section 194(R) gives the right to the payee to deduct the amount, whether in cash or kind, arising out of business promotion.
The terms “benefits and perquisites” are not defined under the IT act. If they receive any such perquisites or incentives, whether in cash or in kind, they must deduct TDS. In cases where the benefit is wholly in kind, the person providing such a benefit or perquisite is required to pay TDS on the value of such benefit or perquisite out of his own pocket. In this case, benefits and perquisites are determined as per the value of the purchased price and manufactured price. However, no taxes to be deducted u/s 194R on sales discount, cash discount, or rebate are allowed to customers.
In the matter of ACIT Vs Solvay Pharma India Ltd, the court held that free samples provided by the pharmaceutical company for promotion purposes would be taxable income. As such, free samples cannot be treated as a freebie. The complimentary sample of medication serves solely to demonstrate its effectiveness and to win the doctors’ confidence in the high quality of the pharmaceuticals. Again, this cannot be regarded as gifts given to doctors as they are intended to promote the company’s goods. The pharmaceutical corporation, which manufactures and markets pharmaceutical products, can only increase sales and brand recognition by hosting seminars and conferences and educating medical professionals about recent advances in therapeutics and other medical fields. Since there are daily advancements in the fields of medicine and therapy taking place throughout the globe, it is crucial for doctors to stay current in order to give accurate patient diagnosis and treatment. The main goal of these conferences and seminars is to keep doctors up to date on the most recent advancements in medicine, which is advantageous for both the pharmaceutical industry and the doctors treating patients. Free medication samples provided to doctors by pharmaceutical corporations cannot be considered freebies in light of the aforementioned value.
Hence, under such circumstances, for such a sales effort, the pharmaceutical company may deduct its expenses. The promotion would, however, be taxable income in the hands of the receiver, and the pharmaceutical company would need to deduct TDS on it.
Another question that pops up is that in the case of gifts and perks received on special occasions like birthdays, marriages, and festivals, under such circumstances, Section 194R will only be applied if they arise out of business or profession.
As we know, we are heading towards digitalisation. There are many social media influencers who are playing a crucial role in marketing strategy. Income received by an influencer is calculated by deducting expenditure incurred on their business. Filming costs, such as cameras, microphones, and other equipment; subscription and software licencing fees; internet and communication costs; home office costs, such as rent and utilities; office supplies; business costs, such as travel or transportation costs; and others are examples of what can be written off as a social media influencer. To illustrate how Section 194 R will be applicable in such a situation, let’s consider Nandini is a social media influencer. She received an offer from a company for product promotion in another city. She charged her fee of Rs 88,000 and the travel expense incurred by her was Rs 25,000. Here, the company will reimburse her travel expenses. So, the travel expenditure incurred by the company is covered under the benefits and perquisites provided to Nandini. Hence, TDS is to be deducted under section 194R at the rate of 10%, i.e., Rs 2500 is deductible from the fees payable to Nandini.
There is no further requirement to check whether the amount is taxable in the hands of the recipient or under which section it is taxable. The Supreme Court took the same view in the case of PILCOM vs. CIT in reference to the deduction of tax under Section 194E. It was held by the Hon’ble Supreme Court that tax is to be deducted under section 194E at a specific rate indicated therein, and there is no need to see the taxability under DTAA or the rate of taxability in the hands of the non-resident.
In the matter of ACIT Vs Solvay Pharma India Ltd, the court held that free samples provided by the pharmaceutical company for promotion purposes would be taxable income. As such, free samples cannot be treated as a freebie. The complimentary sample of medication serves solely to demonstrate its effectiveness and to win the doctors’ confidence in the high quality of the pharmaceuticals. Again, this cannot be regarded as gifts given to doctors as they are intended to promote the company’s goods. The pharmaceutical corporation, which manufactures and markets pharmaceutical products, can only increase sales and brand recognition by hosting seminars and conferences and educating medical professionals about recent advances in therapeutics and other medical fields. Since there are daily advancements in the fields of medicine and therapy taking place throughout the globe, it is crucial for doctors to stay current in order to give accurate patient diagnosis and treatment.
GUJARAT HIGH COURT: WRIT PETITION FILED AGAINST PRIVATE UNIVERSITY NOT MAINTAINABLE, REMEDY FOR ALLEGED ARBITRARY TERMINATION LIES UNDER CIVIL LAW.
The Gujarat High Court in the case Shambhavi Kumari v/s Sabarmati University & 3 other(s) observed and has declined to intervene in a writ petition seeking reinstatement with full back wages and benefits filed by an Assistant Professor against a private university, Sabarmati University.
The bench comprising of Justice Bhargav Karia observed and has clarified that the dispute regarding termination was ‘in the realm of a private contract’ and therefore, held that if on the part of the respondent, there is an alleged arbitrary action, the same would give cause to the petitioner to initiate civil action before the Civil Court but in the facts of the present case, the writ petition would not be maintainable against the private educational institution governed by the Gujarat Private Universities Act, 2009.
In the present case, the petitioner was given a three months’ notice starting August 2013, allegedly without any reason. Consequently. Earlier, an application was filled by the petitioner before the Gujarat Affiliated Colleges Service Tribunal and thereafter, withdrew the application to file the writ before the High Court.
It was contested by the respondents that the petition was not maintainable on the ground that the University was a private University and did not fall within the term ‘State’ under Article 12 of the Constitution of India. Therefore, the employment conditions of the Petitioner would not bring her services within the realm of ‘duty or public function.’
It was observed that the petitioner, per contra, insisted that the University was established under the Gujarat Private Universities Act, 2009. However, Universities were established to provide quality and industry relevant higher education and for related matters and hence, it could not be said that the Universities were not performing public duty. It was directed by the State Government and pervasive control over the functioning of it as was mentioned in Sec 31-35 of Chapter VI of the Act. Reliance was placed on Janet Jeyapaul vs. SRM University and ors. where the Top Court had held that the writ petition was maintainable against the deemed university and whose functions were governed by the UGC Act, 1956.
The bench of Justice Karia, while taking stock of the contentions referred to Mukesh Bhavarlal Bhandari and ors vs. Dr. Nagesh Bhandari and ors where the Coordinate Bench of the High Court in similar circumstances had reiterated that merely because the activity of the said research institute ensures to the benefit of the Indian public, it cannot be a guiding factor to determine the character of the Institute and bring the same within the sweep of ‘public duty or public function.
It was observed that the High Court also rejected the reference to Janet Jeyapaul since in the instant case and held that in the realm of a private contract, the Petitioner termination was to be decided.
Further, it was observed that it is not necessary to go into the merits of the case with regard to the issue of show-cause notice for providing an opportunity of hearing resulting into breach of principle of natural justice and weather the action of the respondent University is unfair or not because all such disputes essentially are in the realm of private contract.
Accordingly, the bench dismissed the petition.
Gujarat HC Quashes Reinstatement Order: Industrial Dispute Act| Person Working In The Capacity Of ‘Consultant’ Cannot Be Deemed ‘Workman’
The Gujarat High Court In the case Santram Spinners Limited v/s Babubhai Magandas Patel observed and has struck down the order of the Labour Court which had held that the Respondent-workman was entitled to reinstatement along with 20% back wages in the Petitioner-institute. Thus, the High Court, after perusing, Form No. 16A which pertains to Tax Deducted at Source, concluded that the Respondent was being paid consultant fees and not a salary and the same had been ignored by the Labour Court.
The bench comprising of Justice Sandeep Bhatt noted that the Respondent had raised an industrial dispute, inter alia, claiming that he was working in the company of the Petitioner as a Technical Maintenance In-Charge while the respondent earning a salary of INR 9,000 per month. Thereafter, it was alleged by him that he was terminated orally in 1997. Consequently, the Labour Court ruled in his favour and ordered reinstatement and back wages.
It was submitted by the petitioner that the Respondent did not fall within the definition of the term ‘workman’ in Sec 2(s) since he was employed as a Maintenance Consultant, receiving consultant fees and not a salary and the respondent had failed to produce any documentary evidence such as TDS statement, appointment letter, bills to bolster his contention.
Further, it was also averred by the petitioner that the relevant documentary evidence was absent. It was stated that Form 16A was produced to show that if the Respondent was a consultant, then there was no need to deduct TDS. It was observed that the Form No. 26K was disagreed by the Labour Court, which was produced by the Company to show that the tax was deducted from fees for technical or professional services.
The bench comprising of Justice Bhatt firstly observed that the Respondent had admitted that he had no evidence with him to prove that he was working as a ‘workman’ in the Company of the Petitioner that his salary was fixed at INR 9,000 per month. It was stated by the Manager of the Company that the Respondent was rendering services as a consultant raising his Vouchers/bills regularly and being paid through cheque. As per the Bench, there was ‘ample evidence’ to prove that that the Respondent was employed as a technical consultant.
Justice Bhatt stated that it is pertinent to note that the learned Labour Court has committed gross error in holding that those documents are complicated and thus, the learned Labour Court has also erred in giving findings that since TDS is deducted by the petitioner company and therefore, the respondent is workman, who is serving in the petitioner institute and in my opinion, this finding of the learned Labour Court is against the settled proposition of law and is highly erroneous.
Therefore, the High Court affirmed that there was no evidence that the Respondent had been working for more than 240 days during the year preceding termination.
Accordingly, the High Court struck down the award of the Labour Court.
GUJARAT HIGH COURT QUASHES REINSTATEMENT ORDER: PERSON WORKING IN SUPERVISORY CAPACITY CANNOT RISE “INDUSTRAIL DISPUTE”
The Gujarat High Court in the case Gujarat Insecticides Ltd. & 1 other(s) v/s Presiding Officer & 2 others observed and has reiterated that a person working in “supervisory” capacity cannot raise an industrial dispute under the Industrial Disputes Act, 1947.
The bench comprising of Justice AY Kogje observed and further made it clear that while deciding whether such person is a workman or not, the Labour Court ought to carefully consider the evidence placed on record and there is no exhaustive list of work to differentiate between the management employee and the Workman.
In the present case, the Petitioner Company averred that the Respondent was working in the non-workman category and engaged in the ‘supervisory category’ and was drawing salary of more than INR 1600. Therefore, the dispute was not an industrial dispute within Section 2(s) of the Act, 1947.
It was insisted by the Respondent that he had worked with the company as a Maintenance Engineer and the duties assigned to him were of the nature of a workman’s duties as per the ID Act. The respondent was wrongly terminated by way of termination and without any procedure established by law and as such, was entitled back wages.
It was observed that the high court took into consideration the Respondent’s appointment letter and witness depositions regarding the nature of work performed by him to conclude that the Respondent in Grade-9 was indeed discharging duty of Maintenance Engineer. It was also specified by the depositions that the hierarchical grading in the petitioner-company as per which, the employees above Grade-7 were of the Management Cadre.
The High Court observed that the Labour Court has completely disregarded this evidence, which according to this Court is most relevant for the purpose of deciding the status of workman and the Labour Court has proceeded that the petitioner-company ought to have produced evidence in the nature of whether the respondent-workman has sanctioned any leave, sanctioned any overtime or prepared any gate passes for employees to go home or has made any ordered or Appointment dismissal. Thus, when the Labour Court, instead of referring to this evidence already on record to establish the nature of work of the respondent and has decided to chase the evidence which is not on record and then on the basis that such evidence not being on record, it was concluded that in the definition of workman, the workman will be covered, this is where, in the opinion of the Court, perversity has crept in.
Accordingly, the bench quashed the impugned order. Therefore, seeing the passage of time, it was held by the High Court that the allowances paid u/s 17B of the Act should not be recovered by the Petitioner company.
COURT CALLS FOR SENSITIZATION OF POLICE: DELHI RIOTS SITE PLANS PREPARED CASUALLY, S.65B CERTIFICATE NOT FILLED FOR DIGITALLY SOURCED EVIDENCE
The Court while dealing with a case related to 2020 Delhi riots, a city Court has called for sensitisation of investigating officers (IOs) on making the photos obtained from digital sources as admissible in evidence by filing a certificate under section 65B of Indian Evidence Act, 1872.
The bench comprising of Additional Sessions Judge Pulastya Pramachala observed and thus ordered that whenever, photographs are filed from digital sources it is needless to say that a certificate under Section 65-B of I.E. Act, is must to make those photographs admissible for the purpose of evidence. However, all the IOs are required to be sensitized this respect as well and it is high time to control the casual and callous approach of any IO.
It was also observed that court expressed displeasure over “casually prepared site plans” by stating that preparation of the same were not even expected in cases triable by the Metropolitan Magistrates.
Adding to it, the Judge stated that unfortunately this kind of site plan has been filed in such a serious case involving session triable case. Moreover, from the documents filed on the record, the court find that certain photographs have been placed, but without any certificate under Section 65-B of Indian Evidence Act.
In the present case, the court was dealing with an FIR registered on the complaint of one Salim Khan wherein it was stated by him that his spare parts and barber shop shop was looted and was put on fire during riots.
It was admitted by one of the accused Dharmender that his involvement in the matter and he, with other co-accused was seen carrying the carton of Rooh Afzah from the warehouse of a complainant in another FIR.
The Court stated that a serious re-look over the quality of evidence/documents place on the record in the case, is required by senior officer with all serious attention.
Further, the court added that in this case the ld. DCP (North East) is requested to go through the records and to submit his report, if the prosecution is to be carried on, on the basis of other materials and same site plan as placed on the record.
As in future, the Special Public Prosecutor undertook to be much careful.
Accordingly, the Court listed the matter for further hearing on August 17.
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