RECENT JUDGEMENT ON POWER OF ATTORNEY HOLDERS THAT CANNOT GIVE EVIDENCE ABOUT FACTS WHICH ARE WITHIN PERSONAL KNOWLEDGE OF PERSONS THEY REPRESENTING:

 CASE TITLE: CIVIL APPEAL NO. 9642 OF 2010 MANISHA MAHENDRA GALA & ORS. …APPELLANT(S) VERSUS SHALINI BHAGWAN AVATRAMANI & ORS. …RESPONDENT(S) WITH CIVIL APPEAL NO. 9643 OF 2010 MANISHA MAHENDRA GALA & ORS. …APPELLANT(S) VERSUS SHALINI BHAGWAN AVATRAMANI & ORS. …RESPONDENT(S)

IN recent judgment that a Power of Attorney holder can only depose about the facts within his personal knowledge and not about those facts which are not within his knowledge or are within the personal knowledge of the person who he represents.

Observing that a power of attorney holder can depose about the fact within his knowledge and not about those facts which are not within his knowledge, the Supreme Court denied the easementary right over the “rasta” claimed by the person based on the statements made by the 'power of attorney' who doesn't know the facts before making the statements.

“It is, therefore, settled in law that Power of Attorney holder can only depose about the facts within his personal knowledge and not about those facts which are not within his knowledge or are within the personal knowledge of the person who he represents or about the facts that may have transpired much before he entered the scene...He (power of attorney) was not having any authority to act as the Power of Attorney of the Gala's at the time his statement was recorded. He was granted Power of Attorney subsequently as submitted and accepted by the parties. Therefore, his evidence is completely meaningless to establish that Gala's have acquired or perfected any easementary right over the disputed rasta in 1994 when the suit was instituted.”, the Bench Comprising Justices Pankaj Mithal and Prashant Kumar Mishra said.

The case relates to the claim of the easementary right by the appellants over the “rasta” which passes from the property owned by the respondents. AND the appellant's claim of easementary right over the respondent's property was based on the statements made by the power of attorney before the court. However, the power of attorney made the statement while he was not authorized to make his statement as a power of attorney of the appellants.

Objecting to the appellant's claim of easementary right, the respondents contended that the deposition made by the power of attorney had no value as the appellant's power of attorney did not know about the transaction, and hence cannot be examined as a witness.

Rejecting the appellant's contention, the Judgment authored by Justice Pankaj Mithal asserted that the 'power of attorney' can only depose such facts that are within its knowledge.

Noting that the fact of appellants having the easementary right over the respondent's property was not within the knowledge of the appellant's power of attorney and neither he was the power of attorney when the transaction took place, the court found the evidence given by power of attorney as meaningless.

The court opined that the power of attorney holder cannot give evidence of which he doesn't have knowledge, and neither he can be examined as a witness to give such evidence before the court.

In Janki Vashdeo Bhojwani vs. IndusInd Bank Ltd., the Supreme Court held that the Power of Attorney holder or the legal representative should have knowledge about the transaction in question to bring on record the truth in relation to the grievance or the offence.

“However, to resolve the controversy with regard to the powers of the General Power of Attorney holder to depose on behalf of the person he represents, this Court upon consideration of all previous relevant decisions in A.C Narayan vs. State of Maharashtra, the Supreme Court clarified that “Power of Attorney holder can depose and verify on oath before the court but he must have witnessed the transaction as an agent and must have due knowledge about it. The Power of Attorney holder who has no knowledge regarding the transaction cannot be examined as a witness. The functions of the General Power of Attorney holder cannot be delegated to any other person without there being a specific clause permitting such delegation in the Power of Attorney; meaning thereby ordinarily there cannot be any sub-delegation.”, the court observed.

General Power Of Attorney (GPA) Or Will (Before Death Of Testator) Cannot Confer Title In Immovable Property

General Power Of Attorney (GPA) Or Will (Before Death Of Testator) Cannot Confer Title In Immovable Property : Supreme Court

 

IN THE SUPREME COURT OF INDIA , CIVIL APPEAL NOS.7527-7528 OF 2012

(GHANSHYAM   VERSUS YOGENDRA RATHI)

The Supreme Court has held that a Will or General Power of Attorney (“GPA”) cannot be recognized as title documents or documents conferring right in any immovable property. It has been further held that the non-execution of any document by the GPA holder consequent to it, renders the said GPA useless.

 

The Bench comprising of Justice Dipankar Datta and Justice Pankaj Mithal, while adjudicating the appeal Ghanshyam v Yogendra Rathi, has held as under:

 

“In connection with the general power of attorney and the will so executed, the.practice, if any, prevalent in any State or the High Court recognizing these documents to be documents of title or documents conferring right in any immovable property is in violation of the statutory law. Any such practice or tradition prevalent would not override the specific provisions of law which require execution of a document of title or transfer and its registration so as to confer right and title in an immovable property of over Rs.100/- in value”.

 

BACKGROUND FACTS:

Mr. Ghanshyam (“Appellant”) was the owner of a property situated in Delhi (“Suit Property”). He entered into an Agreement to Sell dated 10.04.2002 with Mr. Yogendra Rathi (“Respondent”) for sale of Suit Property and received the entire sale consideration from the Respondent. On the same day, the Appellant executed a will bequeathing the Suit Property to the Respondent. The Appellant further executed a General Power of Attorney in favour of the Respondent.

he possession of the Suit Property was handed over to the Respondent, however, no sale deed was executed.

 

The Respondent permitted the Appellant to occupy a portion of the Suit Property for 3 months as a licencee. After expiry of 3 months period, the Appellant did not vacate the Property. The Respondent filed a suit against the Appellant seeking the latter’s eviction from the Suit Property and recovery of mesne profits.

 

The Respondent claimed his ownership on the Suit Property on the strength of the Agreement to Sell dated 10.04.2002, General Power of Attorney, memo of possession, receipt of payment of sale consideration and a will dated 10.04.2002.

 

The Appellant argued that the documents cited by the Respondent have been manipulated on blank papers. However, there was no evidence to that effect. The Appellant did not dispute the execution of such documents or receipt of sale consideration by him.

 

The Trial Court held that there was no manipulation of documents and thus the Respondent is entitled to decree for eviction and recovery of mesne profits.

 

The Appellant filed a first appeal and thereafter a second appeal before the High Court and both were decided in favour of the Respondent. Subsequently, the Appellant filed an appeal before the Supreme Court.

 

SUPREME COURT VERDICT:

The Bench noted that an Agreement to Sell is neither a document of title nor a deed of transfer of property by sale. Therefore, it does not confer any absolute title upon the Respondent over the Suit Property, in view of Section 54 of the Transfer of Property Act, 1882. However, the factors such as entering into an Agreement to Sell, payment of entire sale consideration and being put in possession by the transferor, shows that the Respondent has de-facto possessory rights based on his part performance of the Agreement to Sell.

The possessory right of the Respondent is not liable to be disturbed by the transferer (Appellant). It was further observed that Appellant’s entry into the Suit Property subsequently was as a licencee of the Respondent and not as the owner of Property.

A will has no force during the life of executants.

On the issue of whether any title can be conferred through Will, the Bench opined that a Will comes into effect only after the death of the executant. Since a will has no force during the life of the executant, the Appellant’s will did not confer any right upon the Respondent. It was observed as under:

“Similarly, the will dated 10.04.2002 executed by the defendant-appellant in favour of the plaintiff-respondent is meaningless as the will, if any, comes into effect only after the death of the executant and not before it. It has no force till the testator or the person making it dies. The said stage has not arrived in the present case and, therefore, even the aforesaid will in no way confers any right upon the plaintiff- respondent.”

A Will or General Power of Attorney cannot be recognized as title documents or documents conferring right in any immovable property

 

It was observed that the General Power of Attorney executed by the Appellant is inconsequential, since neither sale deed has been executed nor any action has been taken by the General Power of Attorney holder which may confer title upon the Respondent. “Non-execution of any document by the general power of attorney holder consequent to it renders the said general power of attorney useless”, the Bench held.

 

Further, the Bench deprecated the practice of recognizing General Power of Attorney or will as title documents.

 

“In connection with the general power of attorney and the will so executed, the practice, if any, prevalent in any State or the High Court recognizing these documents to be documents of title or documents conferring right in any immovable property is in violation of the statutory law. Any such practice or tradition prevalent would not override the specific provisions of law which require execution of a document of title or transfer and its registration so as to confer right and title in an immovable property of over Rs.100/- in value”, the Bench ruled.

 

The Bench placed reliance on the judgment in Suraj Lamp & Industries Pvt. Ltd. Vs. State of Haryana & Anr., (2009) 7 SCC 363, wherein the Supreme Court deprecated the transfer of immovable property through sale agreement, general power of attorney and will instead of a registered conveyance deed.

 The Bench upheld the High Court’s view that the Respondent is entitled to a decree for eviction with mesne profits.

Not to Impose Onerous Conditions On Complainants Under Domestic Violence Act : Supreme Court

Case Title: Bhawna Versus Bhay Ram And Others | SLP (Criminal) No.1090 Of 2023 

ORDER DATED 12.02.2023

Courts Should Not Impose Onerous Conditions On Complainants Under Domestic Violence Act : Supreme Court 

The Supreme Court recently set aside a condition imposed by the Delhi High Court which had allowed a victim of domestic violence to lead evidence during trial subject to payment of Rs.20,000 per witness.

 A Bench of Justices V Ramasubramanian and Pankaj Mithal held that it’s not open for Courts to place such “onerous conditions”. Apart from being impermissible in law, the condition is more like a penalty for the appellant not proceeding with the trial, the Court explained. 

“In a complaint filed under the Protection of women from Domestic Violence Act, 2005, it is not open to the Court to impose such onerous conditions upon the appellant, who claims to be a victim of domestic violence. What the Appellate Court and the High Court have ordered are actually in the nature of penalty for the appellant not proceeding with the trial. In the first instance, it is impermissible in law.”

 The appellant is the complainant in a case registered under the Protection of Women from Domestic Violence Act, 2005. During the trial, the appellant’s right to lead evidence was closed and resulted in the rejection of the complaint.

This prompted her to file an appeal. The Appellate Court allowed the appeal directing the trial court to reopen the case and allow the appellant to lead evidence subject to her paying cost of Rs.20,000/- per witness. When the appellant moved the High Court against the said order, it reduced the cost to Rs.10,000 per witness.  In addition, the Appellate Court as well as the High Court said that the appellant will not be entitled to maintenance during that period.

 The Supreme Court did not agree with this view. The Court then proceeded to set aside that portion of the order of the Appellate Court and the High Court imposing the cost upon the appellant for examination of every witness and depriving her from interim maintenance. It also directed the Trial Court to permit the appellant to lead evidence without imposing any onerous conditions. 

Various Stages of Criminal Trial In India

 ALL ABOUT THE VARIOUS STAGES OF CRIMINAL TRIAL IN INDIA:

INTRODUCTION:

Any act or omission which is prohibited by law and is punishable by law is a crime. The punishment for such crime is decided by following procedures of criminal trial. The criminal trials in India are well established statutory, administrative and judicial framework. The whole criminal law consists of three main acts –

 

1.   Indian Penal Code, 1860

2.   Code of Criminal Procedure, 1973

3.   Indian Evidence Act, 1872.

Classification of Criminal Law

 

Substantive Criminal Law or Real Criminal Law	Procedural Criminal Law or Adjective Criminal Law
1. Indian Penal  Code, 1860	1.     Code of Criminal Procedure, 1973   2.    Indian Evidence Act, 1872

Indian Penal Code and Code of Criminal Procedure are together known as “twin sisters” of criminal law.

Code of Criminal Procedure (Cr. P. C.) is the procedural law for conducting a criminal trial in India. The procedure includes the manner for collection of evidence, examination of witnesses, interrogation of accused, arrests, safeguards and procedure to be adopted by Police and Courts, bail, the process of criminal trial, a method of conviction, and the rights of the accused of a fair trial by principles of natural justice.

Indian Penal Code (IPC) is the primary penal law of India, which applies to all offences. Indian Evidence Act (IEA) is a comprehensive, treaty on the law of “evidence”, which can be used in the trial, the manner of production of the evidence in a trial, and the evidentiary value which can be attached to such evidence.

TYPES OF CRIMINAL TRIAL:

According to the Code of Criminal Procedure, a Criminal Trial is of three types. Depending upon the type of criminal trial the different stages of a criminal trial are discussed below.

Warrant Cases:

 

According to Section 2(x) of Code of Criminal Procedure, 1973 a warrant case is one which relates to offenses punishable with death, imprisonment for life or imprisonment for a term of seven years or more. The trial in warrant cases starts either by the filing of FIR in a police station or by filing a complaint before a magistrate. Later, if the magistrate is satisfied that the offense is punishable for more than two years, he sends the case to the sessions court for trial. The process of sending it to sessions court is called “committing it to sessions court”.

Important features of a warrant case are:

·         Charges must be mentioned in a warrant case

·         Personal appearance of accused is mandatory

·         A warrant case cannot be converted into a summons case

·         The accused can examine and cross-examine the witnesses more than once.

·         The magistrate should ensure that the provisions of Section 207 are .

·         Section 207 of Cr. P.C. 1973, include the supply of copies such as police report, FIR,          statements recorded or any other relevant document to the accused.

The stages of trial in warrant cases are given from Section 238 to Section 250 of the Code of Criminal Procedure, 1973.

Different Stages of Criminal Trial in a Warrant case When Instituted by the Police report:

·         First Information Report: Under Section 154 of the Code of Criminal Procedure, a FIR or First Information Report is registered. FIR puts the case into motion. A FIR is information given by someone (aggrieved) to the police relating to the commitment of an offense.

·         Investigation: The next step after the filing of FIR is the investigation by the investigating officer. A conclusion is made by the investigating officer by examining facts and circumstances, collecting evidence, examining various persons and taking their statements in writing and all the other steps necessary for completing the investigation and then that conclusion is filed to the magistrate as a police report.

·         Charges: If after considering the police report and other important documents the accused is not discharged then the court frames charges under which he is to be trialled. In a warrant case, the charges should be framed in writing.

·         Plea of guilty: Section 241 of the Code of Criminal Procedure, 1973 talks about the plea of guilty, after framing of the charges the accused is given an opportunity to plead guilty, and the responsibility lies with the judge to ensure that the plea of guilt was voluntarily made. The judge may upon its discretion convict the accused.

·         Prosecution evidence: After the charges are framed, and the accused pleads guilty, then the court requires the prosecution to produce evidence to prove the guilt of the accused. The prosecution is required to support their evidence with statements from its witnesses. This process is called “examination in chief”. The magistrate has the power to issue summons to any person as a witness or orders him to produce any document.

·         Statement of the accused: Section 313 of the Criminal Procedure Code gives an opportunity to the accused to be heard and explain the facts and circumstances of the case. The statements of accused are not recorded under oath and can be used against him in the trial.

·         Defence evidence: An opportunity is given to the accused in a case where he is not being acquitted to produce so as to defend his case. The defense can produce both oral and documentary evidence. In India, since the burden of proof is on the prosecution the defense, in general, is not required to give any defense evidence.

·         Judgement: The final decision of the court with reasons given in support of the acquittal or conviction of the accused is known as judgement. In case the accused is acquitted, the prosecution is given time to appeal against the order of the court. When the person is convicted, then both sides are invited to give arguments on the punishment which is to be awarded. This is usually done when the person is convicted of an offense whose punishment is life imprisonment or capital punishment.

Stages of Criminal Trial in a warrant Case When Private Complaint Institutes case:

·         On the filing of the complaint, the court will examine the complainant and its witnesses on the same day or any other day to decide whether any offense is made against the accused person or not.

·         After examination of the complainant, the Magistrate may order an inquiry into the matter and submit a report for the same.

·         After examination of the complaint and the investigation report, the court may come to a conclusion whether the complaint is genuine or whether the prosecution has sufficient evidence against the accused or not. If the court does not find any sufficient material through which he can convict the accused, then the court will dismiss the complaint and record its reason for dismissal.

·         After examination of the complaint and the inquiry report, if the court thinks that the prosecution has a genuine case and there are sufficient material and evidence with the prosecution to charge the accused then the Magistrate may issue a warrant or a summon depending on the facts and circumstances.

 Summon Cases

According to Section 2(w) of Code of Criminal Procedure, 1973, Those cases in which an offense is punishable with an imprisonment of fewer than two years is a summon case. A summon case doesn’t require the method of preparing the evidence. Nevertheless, a summon case can be converted into a warrant case by the magistrate if after looking into the case he thinks that the case is not a summon case.

 

Important points about summons case

 ·         A summons case can be converted into a warrant case.

·         The person accused need not be present personally.

·         The person accused should be informed about the charges orally. No need for framing the charges in writing.

·         The accused gets only one opportunity to cross-examine the witnesses. The different stages of criminal trial in a summon case are given from Section 251 to Section 259 of the Code of Criminal procedure.

STAGES OF CRIMINAL TRIAL IN SUMMONS CASE:

 ·         Pre-trial: In the pre-trial stage, the process such as filing of FIR and 

       investigation is conducted.

·         Charges: In summons trials, charges are not framed in writing. The accused appears before the court or is brought before the court then the Magistrate would orally state the facts of the offense he is answerable.

·         Plea of guilty: The Magistrate after stating the facts of the offense will ask the accused if he pleads guilty or has any defense to support his case. If the accused pleads guilty, the Magistrate records the statement in the words of the accused as far as possible and may convict him on his discretion.

·         Plea of guilty and absence of the accused: In cases, where the accused wants to plead guilty without appearing in the court, the accused is supposed to send Rs.1000/- by post or through a messenger (lawyer) to the Magistrate. The absentee should also send a letter containing an acceptance of guilt and the amount of fine provided in the summons. The Magistrate can on his discretion convict the accused.

·         Prosecution and defense evidence: In summons case, the procedure followed is very simple and elaborate procedures are eliminated. If the accused does not plead guilty, then the process of trial starts. The prosecution and the defense are asked to present evidence in support of their cases. The Magistrate is also empowered to take the statement of the accused.

·         Judgement: When the sentence is pronounced in a summons case, the parties need not argue on the amount of punishment given. The sentence is the sole discretion of the judge. If the accused is acquitted, the prosecution has the right to appeal. This right to appeal is also extended to the accused.

 SUMMARY TRIAL:

Cases which generally take only one or two hearings to decide the matter comes under this category. The summary trials are reserved for small offenses to reduce the burden on courts and to save time and money. Those cases in which an offense is punishable with an imprisonment of not more than six months can be tried in a summary way. The point worth noting is that, if the case is being tried in a summary way, a person cannot be awarded a punishment of imprisonment for more than three months.

The trial procedure is provided from Section 260 to Section 265 of the Code of Criminal Procedure.

 

STAGES OF CRIMINAL TRIAL IN SUMMORY CASES:

 ·         The procedure followed in the summary trial is similar to summons-case.

·         Imprisonment up to three months can be passed.

·         In the judgement of a summary trial, the judge should record the substance of the evidence and a brief statement of the finding of the court with reasons.