Criminal Law – Bail – Murder by Poisoning – Grant of Bail on Change in Circumstances – Petitioner (A-2) sought regular bail in a case alleging conspiracy and murder by mixing cyanide poison in alcohol of the deceased – Earlier bail application dismissed on the ground that investigation was at a crucial stage – Subsequent completion of investigation and filing of charge sheet constitutes a change in circumstances – Bail granted [Paras 1, 4, 6].

Bharatiya Nyaya Sanhita, 2023 – Sections 103(1), 61(2), 238 r/w 3(5) – Allegation of Conspiracy and Homicide – Prosecution case based on alleged extra-judicial confession made before Village Revenue Officer – Allegation that deceased misbehaved with wife of A-1 and conspiracy hatched by A-1 and A-2 – Court held that at bail stage, detailed appreciation of evidence is not warranted [Paras 3, 6].

Parity – Co-Accused Granted Bail – Relevant Consideration – Accused No.1, the prime accused, already enlarged on regular bail by the Trial Court – Principle of parity applicable in favour of petitioner – Continued incarceration of A-2 held unwarranted once investigation concluded [Paras 4–6].

Investigation Completed – Filing of Charge Sheet – No Apprehension of Tampering – Once charge sheet is filed and material witnesses examined during investigation, apprehension of tampering with evidence substantially reduces – Bail can be granted subject to stringent conditions [Para 6].

Conditions for Bail – Safeguards Imposed – Bail granted subject to execution of bond and sureties – Weekly appearance before Station House Officer till cognizance – Deposit of passport – Prohibition on leaving country and on influencing witnesses or making statements on social media – Conditions imposed to ensure fair trial [Para 7].

Decision: Criminal Petition allowed – Petitioner/Accused No.2 enlarged on regular bail subject to conditions imposed by the Court.

Civil Procedure Code – Second Appeal – Scope under Section 100 CPC – High Court cannot interfere with findings of fact recorded by the First Appellate Court, which is the final court on facts, unless such findings are perverse, contrary to mandatory provisions of law, settled legal position, based on inadmissible evidence or rendered without evidence – No substantial question of law arises merely because a different view is possible [Paras 14, 35].

Arbitration and Conciliation Act, 1996 – Section 8 – Mandatory Reference to Arbitration – Partnership deed admittedly contained an arbitration clause – Arbitral proceedings were pending since 2007, much prior to institution of suit in 2011 – Civil court had no jurisdiction to continue the suit – Judicial authority bound to refer parties to arbitration once existence of arbitration agreement and arbitrable dispute is shown [Paras 20, 26, 28–30].

Order VII Rule 11 CPC – Rejection of Plaint – Arbitration Clause – Outright rejection of plaint improper where arbitration clause exists – Correct course is to refer parties to arbitration under Section 8 of the Act – First Appellate Court rightly modified the trial court’s order rejecting plaint and directed reference to arbitration [Paras 10–11, 32].

Arbitration Agreement – Non-production of Original Partnership Deed – Effect – Existence of arbitration clause and pendency of arbitral proceedings admitted by both parties – Plaintiff, being Managing Partner and custodian of original deed, cannot take advantage of non-production – Requirement of filing original or certified copy not fatal in admitted circumstances [Paras 16–17, 20].

Arbitrability – Partnership Disputes – Rights in Personam – Dispute relating to partner’s share of profit and loss is a dispute in personam – Amenable to arbitration – Not a category of non-arbitrable disputes as explained in Booz Allen & Hamilton [Paras 18–21].

Allegations of Fraud – Jurisdiction of Arbitral Tribunal – Allegations of fabrication of documents or fraud simpliciter do not oust arbitral jurisdiction – Arbitral Tribunal competent to rule on its own jurisdiction under Section 16 of the Act – Civil court should not assume jurisdiction on such pleas [Paras 25–27, 31–33].

Parallel Proceedings – Civil Suit During Pending Arbitration – Discouraged – Institution of civil suit during pendency of arbitral proceedings amounts to forum shopping – Bifurcation of disputes between arbitral tribunal and civil court would delay proceedings, increase costs and risk conflicting decisions – Contrary to object of Arbitration Act [Paras 29, 34].

Limitation – Appointment of Arbitrator Already Made – Arbitrator appointed in 2007 and proceedings pending – No issue of limitation or failure to appoint arbitrator arises – Objection not raised before courts below – Cannot be agitated in second appeal [Para 22].

Cross Objections – No Independent Merit – Once reference to arbitration upheld and no substantial question of law found, cross objections filed by defendant do not survive – Liable to be dismissed [Para 35].

Decision: Second Appeal dismissed – Cross Objections dismissed – Judgment and decree of First Appellate Court directing reference of parties to arbitration under Section 8 of the Arbitration and Conciliation Act affirmed – No substantial question of law involved – No order as to costs – Pending applications closed.

Criminal Law - Prevention of Corruption – Bribery – Demand and Acceptance – Proof – Acquittal – Appellant, a Patwari, was convicted for offences under Section 5(2) of the J&K Prevention of Corruption Act read with Section 161 RPC on allegation of demanding and accepting bribe for issuance of revenue extract – Trap laid and recovery of ₹700/- from appellant and ₹100/- from co-accused alleged – Held: Demand of illegal gratification is sine qua non for conviction – Neither initial nor subsequent demand proved beyond reasonable doubt – Conviction cannot be sustained merely on recovery of tainted money [Paras 19–24, 32].

Trap Proceedings – Recovery of Tainted Money – Evidentiary Value – Prosecution relied on recovery and positive phenolphthalein test – Held: Mere recovery of tainted currency notes and positive hand-wash/pocket-wash test are not sufficient to prove offence under corruption law – Such evidence is only corroborative and cannot substitute proof of demand and voluntary acceptance [Paras 25–26].

Complainant Turning Hostile – Effect – Complainant categorically denied having demanded or paid any bribe to the appellant and disowned the complaint – Allegation that complainant was “won over” held to be conjectural and unsupported by evidence – Once complainant fails to support demand and acceptance, prosecution must establish the same through independent and cogent evidence, which it failed to do [Paras 13, 17, 30].

Shadow Witness – Credibility and Scope – Shadow witness did not witness demand or actual handing over of money – Expressed uncertainty about presence of complainant at the scene and did not see acceptance of bribe – Held: When shadow witness does not prove demand and acceptance, prosecution case suffers a fatal infirmity [Paras 16–18, 20].

Presumption under Corruption Law – Foundational Facts Not Established – Presumption regarding acceptance of illegal gratification arises only after proof of demand – In absence of proof of demand, presumption could not be invoked – Burden never shifted to the accused [Paras 22, 28].

Co-accused Discharged – Impact on Prosecution Case – ₹100/- allegedly recovered from co-accused who stood discharged – Alleged conspiracy not proved – Prosecution case of concerted demand and acceptance collapsed once co-accused was exonerated and not challenged by prosecution [Paras 12, 24, 27].

Private Place of Trap – Possibility of Manipulation – Trap laid in a private house and not in official premises – Owner of house did not support prosecution – Appellant apprehended with hands restrained, raising possibility of transfer of phenolphthalein powder during apprehension – Benefit of doubt extended to appellant [Paras 17, 26, 29].

Criminal Jurisprudence – Benefit of Doubt – Suspicion, however strong, cannot replace proof – Prosecution evidence riddled with inconsistencies and contradictions – Failure to establish essential ingredients of offence entitles accused to acquittal [Paras 31–32].

Decision: Appeal allowed – Conviction and sentence dated 29.09.2004 set aside – Appellant acquitted of offences under Section 5(2) J&K P.C. Act and Section 161 RPC – Bail bonds discharged – Trial Court record to be returned.

Arbitration and Conciliation Act, 1996 – Section 8 – Reference to Arbitration – Pendency of Arbitration Prior to Suit – Plaintiff filed suit for permanent injunction restraining defendant from claiming his share of profits and losses in partnership firm – Admitted position that arbitration proceedings between parties were pending since 2007 under partnership deed containing arbitration clause – Suit instituted in 2011 during pendency of arbitration – Held: Civil court cannot assume jurisdiction when dispute is already seized of by arbitral tribunal – Reference to arbitration justified – Parallel adjudication by civil court impermissible [Paras 20, 26, 29–34] .

Civil Procedure Code, 1908 – Order VII Rule 11 – Rejection of Plaint – Proper Course under Section 8 of Arbitration Act – Trial Court rejected plaint – First Appellate Court modified order directing reference to arbitration – Held: Where arbitration clause exists, plaint need not be rejected; appropriate course is reference to arbitration – First Appellate Court correct in modifying decree [Paras 11, 32] .

Section 100 CPC – Second Appeal – Scope and Limitations – Interference permissible only when findings of First Appellate Court are contrary to mandatory law or settled legal principles – Findings based on admitted facts regarding arbitration clause and pending arbitral proceedings – No perversity or legal infirmity shown – No substantial question of law arises – Second Appeal not maintainable [Paras 14, 35] .

Arbitration Agreement – Non-production of Original Deed – Effect – Defendant pleaded original partnership deed was in possession of plaintiff – Plaintiff did not deny existence of arbitration clause and admitted pendency of arbitration – Held: Non-filing of original arbitration agreement not fatal where existence of arbitration clause and arbitral proceedings is admitted by both parties [Paras 16–18, 26] .

Arbitrability – Rights in Personam – Dispute concerning enforcement of partner’s share of profits and losses – Contractual dispute arising out of partnership deed – Held: Dispute is in personam and arbitrable – Suit seeking injunction to restrain contractual rights barred in view of arbitration clause [Paras 18–21] .

Allegations of Fraud – Jurisdiction of Arbitral Tribunal – Plaintiff alleged fabrication of documents and issues beyond scope of arbitration – Held: Allegations of fraud simpliciter or statutory violations do not oust jurisdiction of arbitral tribunal – Arbitral tribunal competent to rule on its own jurisdiction under Section 16 – Civil court’s jurisdiction excluded [Paras 25–27, 31–33] .

Effect of Order under Section 8 – Once parties are referred to arbitration, nothing survives for adjudication in civil suit – Remedies governed exclusively by Arbitration and Conciliation Act, 1996 – Continuation of suit barred [Paras 30, 34] .

Decision: Second Appeal dismissed – Cross Objections dismissed – Judgment and decree of First Appellate Court directing reference to arbitration confirmed – Parties to bear their own costs.

POCSO Act – Sexual Assault on Minor – Conviction – Prosecutrix kidnapped while going for nature’s call during marriage ceremony – Confined in accused’s house and subjected to repeated sexual intercourse – Victim recovered from accused’s house on third day – Trial Court convicted accused under IPC and POCSO provisions – High Court upheld conviction – Held: Prosecution proved guilt beyond reasonable doubt [Paras 25–35].

Age Determination – Minor Victim – School Records vs. Ossification Test – Prosecutrix and parents consistently stated age to be 13–14 years – School admission register from first attended school showed date of birth as 04.07.2006 – Defence relied on doubtful scholar register showing different date of birth – Register found unauthenticated and unreliable – Held: As per Rule 12 of JJ Rules and Section 94 JJ Act, school record has precedence – Victim held to be minor on date of incident [Paras 11–18, 24].

Medical Evidence – Ossification Test – Not Mandatory – Doctor advised X-ray for age determination but ossification test not conducted – Held: Ossification test required only in absence of reliable documentary evidence – Non-conduct does not vitiate prosecution case when school records are available – Reliance placed on Jarnail Singh v. State of Haryana and State of M.P. v. Anoop Singh [Paras 19–24].

Evidence Appreciation – Testimony of Prosecutrix – Credibility – Prosecutrix gave consistent and cogent account of forcible sexual intercourse – Supported by testimony of mother, father, friend and grandfather – No material contradiction elicited in cross-examination – Sole testimony of prosecutrix sufficient when found trustworthy [Paras 25–29].

Scientific Evidence – DNA Report – Corroboration – DNA analysis confirmed match between accused and biological samples of prosecutrix – Strong corroborative evidence establishing sexual intercourse by accused – Defence plea of false implication rejected [Paras 33–34].

Consent – Minor Victim – Irrelevant – Defence plea of consensual relationship rejected – Victim below 18 years of age – Consent, even if assumed, legally inconsequential under IPC and POCSO Act [Paras 34–35].

Sentence – Confirmation – Multiple offences including aggravated penetrative sexual assault – Sentence of up to 20 years’ rigorous imprisonment upheld – No mitigating circumstance warranting interference [Paras 1, 35].

Decision: Criminal Appeal dismissed – Conviction and sentences imposed by Trial Court affirmed – Records directed to be sent back to Trial Court forthwith [Paras 35–36].

Criminal Law – Murder Conviction – Circumstantial Evidence – Acquittal – Accused convicted under Section 302 IPC based solely on circumstantial evidence – On appeal, High Court finds prosecution failed to establish a complete and unbroken chain of circumstances pointing exclusively to guilt – Benefit of doubt granted – Conviction set aside [Paras 70–74].

Circumstantial Evidence – Motive – Absence of Proof – Alleged motive that deceased decided to leave accused and return to native place – No witness proved strained relationship or immediate provocation – Evidence indicated cordial relationship between accused and deceased – Held, absence of motive assumes significance in a case resting entirely on circumstantial evidence [Paras 54–59].

Last Seen Together Theory – Reliability of Witnesses – Evidence of PWs 3, 4 and 17 relied on by trial court – High Court found material contradictions, omissions and embellishments in their testimonies – Witnesses lacked close acquaintance and consistency – Held, last seen theory not proved beyond reasonable doubt [Paras 63–66].

Recovery of Weapon – Section 27 Evidence Act – Doubtful Recovery – MO2 chopper allegedly recovered after two years from bushes near scene of occurrence – Weapon found without rust and at a place already inspected by police earlier – Held, recovery highly suspicious and unreliable, incapable of forming a vital link in the chain of circumstances [Paras 69].

Recovery of Mobile Phone – Inconsistent Evidence – Contradictions between PW5 and PW6 regarding sale or free transfer of mobile phone allegedly belonging to accused – Lack of clarity and reliability – Held, circumstance not proved beyond reasonable doubt [Paras 67–68].

Section 106 Evidence Act – Burden of Proof – Prosecution failed to first establish foundational facts – Mere failure of accused to explain circumstances cannot substitute proof of guilt – Section 106 cannot be invoked to fill gaps in prosecution case [Paras 62, 70–71].

Suspicion vs Proof – Criminal Jurisprudence – Strong suspicion cannot replace proof beyond reasonable doubt – Possibility of involvement of third parties not ruled out – Time gap between alleged last seen and death significant – Accused entitled to benefit of doubt [Paras 71–74].

Decision: Criminal Appeal Allowed – Conviction and sentence under Sections 302, 324 and 326 IPC set aside – Accused acquitted – Directed to be released forthwith if not required in any other case.

Criminal Law – Dacoity with Firearm – Conviction under Sections 395 and 397 IPC – Acquittal – Appellants convicted for dacoity and causing firearm injury based primarily on testimony of injured witness – On appeal, High Court finds serious contradictions and inconsistencies in prosecution evidence – Conviction set aside [Paras 9–11].

Identification of Accused – Night Occurrence – FIR against Unknown Persons – Failure to Hold Test Identification Parade – Incident occurred at about 2:00 A.M. when victims were asleep – Accused not named in FIR – Identification made belatedly through Section 164 CrPC statement – Informant failed to participate in Test Identification Parade – Held, identification highly doubtful and unsafe to rely upon [Paras 6–9].

Appreciation of Evidence – Contradictory Testimonies – Evidence of P.W.1 (injured) inconsistent with version of P.W.3 (informant) regarding manner of firing and place of occurrence – Version of scuffle and unmasking of accused contradicted by presence of victim inside mosquito net – Held, prosecution story unreliable [Paras 9].

Investigation – Serious Lapses – No recovery of looted articles or weapons – No seizure of bloodstained clothes, mosquito net or mattress – Fired cartridge not recovered – Statements of neighbours and minor daughter (eye-witness) not recorded – Held, investigation perfunctory and deficient, weakening prosecution case [Paras 9].

Criminal Jurisprudence – Proof Beyond Reasonable Doubt – Suspicion vs Proof – Mere occurrence of dacoity and firearm injury insufficient to sustain conviction in absence of reliable identification and corroborative evidence – Benefit of doubt must go to accused [Paras 9–10].

Decision: Criminal Appeal Allowed – Judgment of conviction and sentence dated 31.01.2003 set aside – Appellants acquitted – Bail bonds discharged – Pending interlocutory applications closed.

SC/ST (Prevention of Atrocities) Act – Section 3(1)(x) – Essential Ingredients – “Public View” – Conviction of appellant, a senior officer, for allegedly abusing subordinate belonging to Scheduled Caste by caste-based slurs – Complaint silent as to date, time and place of incident – No averment that alleged abuse occurred “within public view” – Held: To attract Section 3(1)(x), intentional insult or intimidation must occur at a place within public view – Absence of such foundational facts in complaint is fatal to prosecution case [Paras 16–18].

Evidence – Improvement over Complaint – Reliability of Witnesses – Prosecution witnesses deposed that abuse took place in public view – Such assertion absent in original complaint – Held: Oral testimony introducing public view amounts to material improvement – Conviction cannot rest on such improved version [Paras 18, 22].

Delay in Lodging Complaint – Effect – Complaint filed after delay of about 7–8 months – No satisfactory explanation for delay – Delay assumes significance when coupled with other infirmities in prosecution case – Held: Delay probabilises defence version of false implication [Paras 19–22].

Defence of False Implication – Departmental Memos – Probabilisation – Appellant had issued memos and circulars to complainant and other prosecution witnesses for dereliction of duty – Issuance of memo admitted by complainant in cross-examination – Majority of prosecution witnesses were recipients of same memo – Held: Defence version that complaint was an afterthought to avoid disciplinary action appears probable [Paras 20–22].

Interested Witnesses – Absence of Independent Public Witnesses – Prosecution relied only on complainant and co-workers similarly placed and allegedly aggrieved by appellant – No independent public witness examined despite claim of public view – Held: It is unsafe to base conviction solely on interested witnesses in absence of corroboration [Paras 22–23].

Criminal Trial – Benefit of Doubt – Prosecution failed to establish essential ingredients of offence beyond reasonable doubt – Trial court erred in relying on unsatisfactory and unreliable evidence – Held: Accused entitled to benefit of doubt [Paras 23–24].

Decision: Appeal allowed – Conviction and sentence dated 12.04.2016 and 19.04.2016 set aside – Appellant acquitted under Section 235(1) Cr.P.C. – Bail bonds cancelled – Appellant set at liberty.

NDPS Act – Regular Bail – Recovery of Heroin – Section 37 Rigours – Petition under Section 483 BNSS seeking regular bail in FIR for offences under Sections 21, 22, 27-A and 29 NDPS Act – Recovery of 258 grams of heroin attributed to petitioner, which is more than non-commercial quantity – Held: Rigours of Section 37 NDPS Act squarely attracted and bail can be granted only on satisfaction of twin conditions [Paras 1, 8].

Bail Jurisprudence – Section 37 NDPS Act – Twin Conditions – Scope of Consideration at Bail Stage – Court not required to conduct mini trial or detailed appreciation of evidence – Reasonable grounds to believe accused is not guilty and not likely to commit offence while on bail must coexist – Held: Such satisfaction could not be recorded on facts of present case [Paras 7–8].

Conscious Possession – Recovery from Polythene Thrown by Accused – Effect – Argument that contraband was not recovered from physical possession but from polythene allegedly thrown on seeing police – Held: Does not negate prima facie case of conscious possession at bail stage, particularly when apprehension was preceded by specific secret information [Para 8].

Non-Compliance of Mandatory Provisions – Plea at Bail Stage – Contention regarding violation of NDPS procedural safeguards – Held: Mixed question of law and fact to be adjudicated during trial and not determinative at stage of consideration of regular bail [Para 8].

Criminal Antecedents – Relevance in NDPS Bail – Petitioner involved in other NDPS and criminal cases – Held: Criminal antecedents are relevant factor while considering likelihood of re-offending and weigh against grant of bail under Section 37 NDPS Act [Paras 4, 8].

Delay in Trial – Long Incarceration – Effect under NDPS Act – Custody of about nine months – Held: Mere completion of investigation or likelihood of delay in trial is not sufficient ground to override statutory bar under Section 37 NDPS Act in absence of exceptional circumstances [Paras 4, 8–9].

Section 27-A NDPS Act – Challenge at Bail Stage – Argument that provision wrongly invoked – Held: Such contention cannot be examined conclusively at bail stage when prima facie material indicates involvement in narcotics trade [Para 8].

Decision – Regular Bail – Refusal – Seriousness of offence, quantity of contraband, manner of recovery, and statutory embargo under Section 37 NDPS Act disentitle petitioner from discretionary relief – Petition dismissed [Paras 9–11].