CASE ANALYSIS- SHARAD BIRDICHAND SARDA V. STATE OF MAHARASHTRA, AIR 1984 SC 1622

Abstract

The researcher has, in the present case-analysis tried to summarize the relevant facts pertaining to the case and discuss the applicable laws of evidence. Further, an attempt to read the laws of evidence with the judgment at hand is done, in addition to which a critical analysis of the relevant portion of the original judgment in light of the decisions relied upon while delivering it and the decisions which relied upon the original judgment is done to evaluate the impact of the judgment. 

Case Map

After the trial court and the High Court of Bombay ruled against the accused in the case, the matter came before the Hon’ble Supreme Court through a SLP under Article 136 of the Constitution of India against the judgment of a division bench of the Bombay High Court. The case pertains to the death of one Manju who was the wife of the main accused (Sharad Birdichand Sarda). The facts surrounding her death and evidences put forth paint a rough sketch of the events leading up to the unfortunate death. 

The deceased was in an unhappy marriage. She was depressed and sad about the ill-treatment she received by her in-laws and her husband. Even the court observed that she was a sensitive person and was depressed.  

The conviction awarded by the lower courts was based loosely on appreciating circumstantial evidence and by shifting the burden of proof on the accused. 

Rules of Evidence

Criminal proceedings reach a just and fair conclusion through the various facts put forth via the examination of witnesses and appreciation of evidence. The onus to prove guilt generally is on the prosecution, and in order to do so, the guilt must be established conclusively, and proved beyond reasonable doubt.[1]

In the current case two concepts pertaining to Law of Evidence are dealt, the two of them will be discussed in brief by the researcher before critically analysing the case in light of the two concepts.

1. Burden Of Proof

2. Circumstantial Evidence

Burden Of Proof

The Criminal Justice system in India provides for an evidence to be proved before a court of law in order to ascertain the guilt of the accused. Proving as per the Indian Evidence Act, 1872 as interpreted by several judicial pronouncements[2], the standard set provides the evidence to substantially prove the case beyond reasonable doubt. The burden of proof in a criminal case rests on the prosecution and not the defence.[3]

Circumstantial Evidence

In certain cases, it becomes very difficult to find direct evidences and the facts and evidences put forth in absence of directly associated evidences assist the courts to decide the matter conclusively. While these evidences are usually brought forward in cases where there is a dearth of primary evidence, circumstantial evidence is also put along with the general evidence to strengthen the case in general. The circumstantial evidences attempt to prove the core facts which go on to prove the contentions required for the completion of an offence.

The admissibility of circumstantial evidence is often debated in the legal community at lengths. Circumstantial evidences such as dying declarations, last seen appearances etc. are seen as evidences of last resort, or weak evidences.[4] These evidences are admissible only if they conclusively establish the line on which they proceed.[5] The circumstantial evidences should further also rule out any other probability of the chain of events that it establishes or seeks to establish.[6]

Critical Analysis of The Application of the Rules of Evidence in the case

The case of Sharad Birdichand is considered to be a landmark in the field of Law of Evidence. The case discusses in detail the treatment of circumstantial evidence in cases they are inconclusive, and while doing so, reiterates that the burden of proving entails the burden to prove conclusively and without any doubt. 

The judgment lays down the panchsheel test to examine circumstantial evidences in general. The test is extracted from para 153 of the judgment.[7]

The judgment discusses and deliberates upon the concept of burden of proving guilt beyond reasonable doubt through a chain of events which must yield only one outcome, the one which proves the accused to be guilty.  The court laid down that the onus of proving the guilt rests on the prosecution, and the inability to defend oneself extensively should not be attributed to the accused is a negative manner.  The facts and the hypothesis should be in line and there should be apparent coherence between the two to be able to accept the circumstantial evidences against the accused. The sequence of the events must be such as to not leave any reasonable ground in favour of the innocence of the accused.  The judgment cited and reasoned 23 judgments to logically reach at the conclusion that a situation which offers two possible explanations should not be attributed to the accused to prove his guilt.[8]

Building upon the case and relying on the judgment several recent judgments have meted justice by holding that the weakness of the defence cannot cure the lacunae in the case of the prosecution. The judgment has been accorded a correct interpretation and innocent accused have been acquitted pursuant to the guidelines laid down in the case.[9]

The case has been reported regularly in the various judgments pertaining to evidence issues and has guided justice by treating a accused with dignity and fairness. The judgments following the precedent have kept the administration and the investigatory authorities on their feet, as it has been made clear to them that the weakness of the defence cannot automatically be factored into their favour. 

Conclusion

The laws of evidence in particular, and the applicability of the burden of proof to circumstantial evidences gives a broad understanding of the nature and function of the criminal justice system of the country. The current exercise helped the researcher analyse not just the case at hand but also the key postulates upon which the Law of Evidence relies.  The case had Mr. Jethmalani argue his way through one of his first big cases where he interpreted Laws of Evidence in a manner favorable to the accused. The factual matrix of the case was very well linked by both the advocates and the judges and the authorities cited provided a brief history lesson on the evolution of Laws of Evidence. The impact of the judgment is very significant to the criminal law development in the country even today, and the researcher is really thankful for being


[1] Krishan v. State, 2003 7 SCC 56.

[2] Shankarlal Gyarasilal Dixit v. State of Maharashtra, 1981CriLJ 325.

[3] Hanumant v. State of M.P, AIR 1952 SC 343.

[4] Rambraksh vs. State of Chhattisgarh, (2016) 12 SCC 251.

[5] Bodh Raj vs. State of Jammu and Kashmir AIR 2002 SC 316.

[6] M. G. Agarwal v. State of Maharashtra, 1963 2 SCR 405.

[7] Sharad Birdhichand Sarda v. State of Maharashtra AIR 1984 SC 1622.

[8] M.G. Agarwal v. State, 1963 2 SCR 405.

9] Vijay Shah v. State of Delhi (NCT)., MANU/DE/4661/2018.

This article has been authored by Anurag Shankar Prasad.

The Sabrimala Issue – An Ancient Victory

  • The Temple

Sabrimala is a temple complex situated inside the Periyar Tiger Reserve, Kerala, India. The temple is devoted to the Hindu celibate deity “Lord Ayyappan” and as per belief; he is the son of Shiva and Mohini (the female avatar of Vishnu). It is the largest annual pilgrimage in the world with an estimate of 17-30 million devotees visiting each year. It has outshined all the accepted concepts of a pilgrim centre.

  • The Issue

The issue which arose regarding the Sabrimala temple was women and young girls of menstruating age were not allowed to enter the temple since they were considered as “Impure”, in order to offer their prayers to the celibate deity Lord Ayyappan.

  • The Beginning of an Enchanting Episode
  • Kerala High Court

In 1990, S. Mahendran filed a petition in the Kerala High Court, alleging that young women were visiting the temple for non-religious purposes. There were evidences to show that women were visiting the temple to conduct first rice feeding ceremony of their children.

The Kerala High Court banned the entry of women between the age of 10 to 50 years from entering and worshipping at the temple. The reason behind such a judgment by the Court was prohibition on women of menstruating age to enter the Sabrimala temple had become a “Usage”, which was being followed by the people of Kerala since the time immemorial.

Also, the Court had directed the Kerala Government to use the police force to enforce the order to ban the entry of women to the temple. It further held that such restriction of not allowing women to enter Sabrimala was imposed by the Devaswom Board and was not violative of
Articles 15, 25 & 26 of the Constitution of India and the  Place of Worship (Authorization of Entry) Act, 1965, as there is no prohibition between one section and another section or between one class and another class among the Hindus in the case of entry to Sabrimala whereas the prohibition is only in respect of women of a specific age group and not women as a class.

  • Supreme Court

In the year 2006, six women who were the members of the Indian Young Lawyers Association, filed a petition to the Supreme Court for the lifting of the ban against women in their menstruating age to enter the Sabrimala Temple. They further alleged that the practice was a violation of their constitutional rights, thereby questioning the validity of provisions in the Kerala Hindu places of Public Worship (Authorization of Entry) Rules, 1965 which aided it.

On 28 September 2018, the Supreme Court with a majority 4:1 ruled that the women of all ages can visit and worship in the Sabrimala temple. It was of the view that not allowing women in their menstruating years into the temple is ultra vires the Constitution and all women should be permitted to enter the temple.  The Judgment was delivered by 5 Judge Constitution Bench comprising of then CJI Dipak Misra, Justices R.F. Nariman, AM Khanwilkar, D.Y. Chandrachud and Indu Malhotra. Justice Indu Malhotra was the only Judge who had the dissenting opinion.

Failed Attempt

Before the Supreme Court Verdict: A few women of menstruating age had entered the temple and it was purified using tantric rituals.

Post Supreme Court Verdict:  No women between the ages of ten to fifty were able to go inside the temple. Even after the Court delivered its judgment in favor of women and lifted the age old ban, there seemed no cure to the issue of Sabrimala pertaining to women as they were still being stopped from entering the temple.           

Numerous protests took place at several base camps when Sabrimala was opened for pilgrims for the first time after the Supreme Court verdict.

When two women of menstruating age tried o enter the temple in the year 2018, they were blocked by protestors. One woman was also arrested on the ground of hurting religious sentiments for posting her photo on one of the social networking websites in which she was seen sitting in an allegedly ‘obscene pose’, dressed up as a devotee of Ayyappan.

The Present Position

Two women aged below fifty years of age entered the Sabrimala temple on 2nd January 2019 along with the escort of the police personnel and became the first to do so, since the judgment of Supreme Court.

On 4th January, 2019, a forty six year old Sri Lankan woman entered the temple and offered her prayers to Lord Ayyappan at Sabrimala Temple.

On 18 January 2019, the Kerala Government has notified the Supreme Court that fifty one women of menstruating age were able to fight the protestors to enter the Sabrimala temple and offer their prayers to the celibate deity.

Conclusion

The issue involved in the case does not emphasize on the fact that women are impure so that they are unable to enter the temple, as the eminence does not particularly point towards those specific five days. The fact that women at that point of age are capable of creating a life, and the deity being celibate, chose not to involve such devotees.

The Patriarchal affair continues to persist in our society which has affected the women especially at a larger scale. The conception of the notion that women are impure during their menstruation period is a complete myth; however it is still believed to be true by many. Also, there must be realization that there is a rational cause behind this specific notion; one must be given respect for the sake of the devotees that are “Crores in numbers.” Women are not prohibited legally and have no constraints yet it is the profound system of belief and rules which are collated by the real idea of impurity which does not permit them to even make an entry during the menstruation period. These implanted forms of faith are to be broken free from, restricting them to be passed onto the next generation and scraping the age old prejudice against women.

This article has been authored by Gurpreet Kaur Arora from Team LawSkills.

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SUITS BY OR AGAINST FIRMS AND PERSONS CARRYING ON BUSINESS IN NAMES OTHER THAN THEIR OWN- ANALYZING ORDER 30 OF THE CPC.

ABSTRACT

 In practical situations it is more often than observed that the various liabilities emanate from latent sources rather than the apparent ones. The Civil Procedure Code being a subservient statute does not create an impediment on account of this technicality. Order XXX deliberates upon the procedural aspects of Suits by or against firms or persons carrying on business in names other than their own. The researcher herein has attempted to present a brief discussion on the subject.

Introduction

It is very common to observe issues arise out of civil transactions. Business transactions often result out of business relationships, these relationships are often established between two entities owing to a business structure which facilitated such establishment in the first place. As such situations present themselves in abundance, certain issues arise out such relationships and it becomes impracticable to litigate against an individual entity. Hence, it is imperative to have a proper and comprehensive code to govern these litigations which pertain to such transactions. 

Business actions are not attributable to a single individual every time, moreover, certain remedies tend to have a very limited scope if they are exercised against an individual instead of a corporation or a business partnership. Further in cases where an entire business setup or a partnership has been affected due to a certain individual’s actions, there should be a proper channel to follow to enforce the laws in the own name of the business entity or partnership.

Order 30 of the Code of Civil Procedure deals with such transactions which involve suing or being sued in the name of a firm or an association of people who carry on a business in a name other than one’s own.[1] The order runs through 10 rules which discuss the various essentials of such litigations, ranging from service, notice, appearance etc. The following analysis will provide a brief synopsis of Order 30 and proceed to analyze the order in light of judicial pronouncements and basic jurisprudence. 

An Analytical Synopsis Of The Order

Rule 1 of the order gives a basic idea of the nature of the procedural law that Order 30 seeks to establish the nature of the entire order. It provides for two or more persons who are either liable to be partners or are partners to sue or be sued in the name of the firm which they were a part of when the cause of action arose.[2] This facilitates the process of litigation by providing both the partners and the individuals seeking relief against the partners by making the litigation about the entire partnership firm i.e. every partner rather than a single individual.[3]

The aggrieved are further provided under Rule 1 with an option to apply to the court for a list of the partners of a firm to ascertain the concerned people at the time when the cause of action arose. 

The order further provides that were the partners sue in the name of the firm, the defendants may demand in writing that the names of all partners of the firm be declared.[4]4The rule provides that the proceeding shall proceed in the name of the firm but the decree shall mention the names of all partners. In addition to that, the rule provides that the proceedings may be stayed by the court in case the firm or the partners fail to comply with the requisition. The suit may not be dismissed if the names of all of the partners is not disclosed and the implication of such an action shall merely be that the litigation shall be deemed to be against only the declared names. However, if the list of the declared names contains certain names which are not present in the register of the firms, the suit is not maintainable.[5]

Rule 3 deals with the manner of service of summons on partners of a firm, and provides for the service to be made either on i) one or more of the partners or ii) at the principal place of business of the firm upon the person who is in charge of the management of such place at the time as directed by the court. Such service may be made whether or not any of the partners are in India at the time.[6]

However, if the plaintiff was aware of the fact that, the partnership was dissolved, service of summons should be made on any of the persons who are in India at the time and who are sought to be made liable.[7]Service will further be deemed proper even if the person accepting it is doing so through someone else.[8]

It is provided under Rule 5 that, where a summons is served, the person so served must certainly be given a notice with regards to the capacity in which he is being sued, i.e. whether as a partner or as a person in charge of the partnership business or both.[9]However, it is only mandatory for a partner to appear before the court and not the person who is in charge of the partnership business.[10]

Further, despite the proceedings being conducted in the name of the firm, each partner is required to attend and appear at the proceedings individually.[11]

Rule 4 discusses the consequences upon the death of a partner. It provides that when a partner dies, before the institution of the suit or during its pendency, it shall not be essential to join the legal representatives in the suit,[12] however, the legal representatives may exercise their right to be impleaded.[13]

A person who has been served summons under Rule 3 may appear in protest stating that he was not a partner of the firm when the issue arose and contest it before the court.[14] Such person’s liability as a partner is not absolved unless the court decides so. 

Rule 9 provides that the suits instituted by one or more partners against the firm or between firms having certain common partners. In such case, execution may be issued only with the leave of the court to safeguard the interest of all the partners.[15] Thereafter, the court may even direct accounts and inquiries to be made at the time of the execution.

The liability under a decree (other than a decree with respect to a property) passed against the firm will only be attributable to the partners who were served summons to appear.  

Rule 10 extends the applicability of Order 30 to cases where an HUF is carrying on business in any name or any person is carrying on business in any other name or style other than his own, and also to a proprietary concern, as the nature of such case permits.[16]

Concluding Comments

The essence of the ten rules of Order 30 lays down the various nuances of a civil suit concerning an entity at a non-individual level. The Order was introduced as an enabling provision to facilitate institution of suits against firms, as the same is bound to yield a just compensation in case someone is wronged. 

Suits by or against firms or persons carrying on business in names other than their own are in can be very well said to be analogous to the Company Law doctrine of distinct legal personality and the concept of piercing of the corporate veil.  The provision for the same in the CPC retraces back the liability to the firm which established the relationship responsible for the liability and while doing so, ensures that the principles of natural justice are followed. 

The Order is worded cautiously to give it the desired meaning and nothing more, something which often lacks in the procedural laws pan India.


This article has been authored by Anurag Shankar Prasad.

[1] Purushottam Umedbhai and Co. v. Manilal and Sons, AIR 1961 SC 325. 

[2] Bharat Sarvoday Mills Co. Limited v. Mohatta Brothers. AIR 1969 SC Guj 178.

[3] Shanker Hoursing Corporation v. Mohan Devi, AIR 1978 Del 255 (D.B).

[4] Rule 2, Order XXX, Code of Civil Procedure, 1908.

[5] Alwar Iron v. Union of India, AIR 1970, Raj 86.

[6] Rehmankhan Dawood Khan v. Bombay Iron Syndicate, AIR 1953 Bom 23.

[7] Karkishandas Lallubhai v. Rana Gulabdas Kalyandas, AIR 1956 Bom 513.

[8] P. Sen Pvt Ltd. v. Delite Builders

[9]  Srinath Bros v. Century Mill

[10] Rule 7, Order XXX, Code of Civil Procedure, 1908.

[11] Rule 6, Order XXX, Code of Civil Procedure, 1908.

[12] Krishna Chandra Agarwalla v. Shanti Prasad, AIR 1981 Cal 199.

[13] Upper India Cable Company v. Bal Kishan, AIR 1981 SC 1381.

[14] Rule 8, Order XXX., Code of Civil Procedure, 1908.

[15] Lakshmanan Chetty v. Nagappa Chetty, AIR 1918 Mad 167.

[16] Ashok Transport Agency v. Awdesh Kuma, AIR 1999 SC 1484