CWG Scam: Suresh Kalmadi Sent to 8-days Police Custody

Source : Times of India

Former chief of the Commonwealth Games Organising Committee Suresh Kalmadi was on Tuesday sent to eight days police custody by a city court here. 

Kalmadi, who was arrested on Monday for alleged irregularities in awarding contracts for the October 2010 Games, had spent the night in CBI custody. 

66-year-old Kalmadi has been accused of awarding illegal contracts to a Swiss firm for Timing-Scoring-Result system for the Games causing a loss of Rs 95 crore to the exchequer. 

"I am granting him police custody till May 4," ordered Additional District Judge Talwant Singh. 

The judge also said that during this period, Kalmadi "would be medically examined after every 48 hours and could also meet relatives and counsellors everyday for 40 minutes." 

Kalmadi's arrival at the Patiala House court complex was very dramatic. An unemployed man flung a slipper at him as he was entering the complex escorted by a posse of policemen. The person, identified as Kapil Thakur, was immediately detained, police said.

Competition Commission of India Finalises New Notification for Mergers & Acquisitions

Source : Indlaw

The Competition Commission of India (CCI) is going to finalise a new notification on Corporate Mergers & Acquisitions (M&A) at its meeting on April 29 and gazette it on May 1, 2011. 

Its objective is to promote competitiveness in the market and safeguard the consumer interest, keeping in view the economic growth of the country said Mr Dharendra Kumar CCI Chairman, addressing an interactive meeting of representatives of CII, FICCI, Assocham and Indian Merchants’ Chamber and Law Firms organized by IMC on April 25 to consider the Commission’s discussion paper on Regulation of Combinations. 

The Union Minister of Corporate Affairs (MCA) Mr. Murli Deora, chaired the meeting and the Secretary to MCA, Mr. D K Mittal and Mr Kumar interacted with a galaxy of industrialists and top legal experts specializing in M&A. IMC President, Mr. Dilip Dandekar, welcomed the Minister and other distinguished speakers and members of the audience. 

Mr Deora later told reporters that a new policy on corporate affairs would be chalked out soon.

He said that his Ministry would also consult the Union Finance Ministry, RBI and SEBI before finalizing the notification for laying down Rules for M&A by corporates.

Circumstantial Evidence : The Law

The Supreme Court in Inspector of Police, Tamil Nadu v. John David has discussed the law relating to conviction based on Circumstantial Evidence. While discussing various judicial precedents on the topic, the Court held as under;

CASE ON CIRCUMSTANTIAL EVIDENCE

19.The principle for basing a conviction on the edifice of circumstantial evidence has also been indicated in a number of decisions of this Court and the law is well-settled that each and every incriminating circumstance must be clearly established by reliable and clinching evidence and the circumstances so proved must form a chain of events from which the only irresistible conclusion that could be drawn is the guilt of the accused and that no other hypothesis against the guilt is possible. This Court has clearly sounded a note of caution that in a case depending largely upon circumstantial evidence, there is always a danger that conjecture or suspicion may take the place of legal proof. The Court must satisfy itself that various circumstances in the chain of events have been established clearly and such completed chain of events must be such as to rule out a reasonable likelihood of the innocence of the accused. It has also been indicated that when the important link goes, the chain of circumstances gets snapped and the other circumstances cannot in any manner, establish the guilt of the accused beyond all reasonable doubts. It has been held that the Court has to be watchful and avoid the danger of allowing the suspicion to take the place of legal proof. It has been indicated by this Court that there is a long mental distance between 'may be true' and 'must be true' and the same divides conjectures from sure conclusions.

20.This Court in the case of State of U.P. v. Ram Balak & Anr., reported at (2008) 15 SCC 551 had dealt with the whole law relating to circumstantial evidence in the following terms: - "11. It has been consistently laid down by this Court that where a case rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person. (See Hukam Singh v. State of Rajasthan, Eradu v. State of Hyderabad, Earabhadrappa v. State of Karnataka, State of U.P. v. Sukhbasi, Balwinder Singh v. State of Punjab and Ashok Kumar Chatterjee v. State of M.P.) The circumstances from which an inference as to the guilt of the accused is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances. In Bhagat Ram v. State of Punjab it was laid down that where the case depends upon the conclusion drawn from circumstances the cumulative effect of the circumstances must be such as to negative the innocence of the accused and bring home the offences beyond any reasonable doubt.

We may also make a reference to a decision of this Court in C. Chenga Reddy v. State of A.P. wherein it has been observed thus: (SCC pp. 206-07, para 21) `21. In a case based on circumstantial evidence, the settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. Further, the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence.'

11. In Padala Veera Reddy v. State of A.P. it was laid down that when a case rests upon circumstantial evidence, such evidence must satisfy the following tests: (SCC pp. 710-11, para 10)

`(1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;

(2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused;

(3) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and

(4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence.'

`10. ... It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused.'

16. A reference may be made to a later decision in Sharad Birdhichand Sarda v. State of Maharashtra. Therein, while dealing with circumstantial evidence, it has been held that the onus was on the prosecution to prove that the chain is complete and the infirmity of lacuna in prosecution cannot be cured by false defence or plea. The conditions precedent in the words of this Court, before conviction could be based on circumstantial evidence, must be fully established. They are: (SCC p. 185, para 153)

(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned `must' or `should' and not `may be' established;

(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty; 

(3) the circumstances should be of a conclusive nature and tendency;

(4) they should exclude every possible hypothesis except the one to be proved; and

(5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused."

These aspects were highlighted in State of Rajasthan v. Raja Ram, at SCC pp. 187-90, paras 9-16 and State of Haryana v. Jagbir Singh." 

21.In the light of the above principle we proceed to ascertain whether the prosecution has been able to establish a chain of circumstances so as not to leave any reasonable ground for the conclusion that the allegations brought against the respondent are sufficiently proved and established.

Scope and Ambit of Appeal against Acquittal : The Law

The Supreme Court in Inspector of Police, Tamil Nadu v. John David has discussed the scope and ambit of powers of the appellate court in an appeal against acquittal. While discussing various judicial precedents on the topic, the Court held as under;

APPEAL AGAINST ACQUITTAL

12. Before we enter into the merit of the case, we are required to deal with the contention of the counsel appearing on behalf of the respondent regarding the scope and ambit of an appeal against acquittal. Various decisions of this Court have dealt with the issue very extensively. Therefore, it would be suffice, if we extract few decisions of this Court laying down the law in this regard.

13.In the case of State of U.P. v. Ram Sajivan & Ors. reported at (2010) 1 SCC 529, one of us (Bhandari, J.) detailed the law in this regard as follows: -

"46. ................. This Court would ordinarily be slow in interfering in order of acquittal. The scope of the powers of the appellate court in an appeal is well settled. The powers of the appellate court in an appeal against acquittal are no less than in an appeal against conviction.

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In Chandrappa v. State of Karnataka this Court held: (SCC p. 432, para 42)

"(1) An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded.

(2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law.

(3) Various expressions, such as, `substantial and compelling reasons', `good and sufficient grounds', `very strong circumstances', `distorted conclusions', `glaring mistakes', etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of `flourishes of language' to emphasise the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion.

(4) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court.

(5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court."

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In Ghurey Lal v. State of U.P., one of us (Bhandari, J.) summarised the legal position as follows in paras 69 and 70: (SCC p. 477)

"69. The following principles emerge from the cases above:

1. The appellate court may review the evidence in appeals against acquittal under Sections 378 and 386 of the Criminal Procedure Code, 1973. Its power of reviewing evidence is wide and the appellate court can reappreciate the entire evidence on record. It can review the trial court's conclusion with respect to both facts and law.

2. The accused is presumed innocent until proven guilty. The accused possessed this presumption when he was before the trial court. The trial court's acquittal bolsters the presumption that he is innocent.

3. Due or proper weight and consideration must be given to the trial court's decision.

This is especially true when a witness' credibility is at issue. It is not enough for the High Court to take a different view of the evidence. There must also be substantial and compelling reasons for holding that the trial court was wrong.

In a recently delivered judgment of this Court in State of U.P. v. Banne, one of us (Bhandari, J.) summarised the entire legal position and observed that this Court would be justified in interfering in the judgment of the High Court in the following circumstances which are illustrative and not exhaustive: (SCC p. 286, para 28)

"(i) The High Court's decision is based on totally erroneous view of law by ignoring the settled legal position;

(ii) The High Court's conclusions are contrary to evidence and documents on record;

(iii) The entire approach of the High Court in dealing with the evidence was patently illegal leading to grave miscarriage of justice;

(iv) The High Court's judgment is manifestly unjust and unreasonable based on erroneous law and facts on the record of the case;

(v) This Court must always give proper weight and consideration to the findings of the High Court;

(vi) This Court would be extremely reluctant in interfering with a case when both the Sessions Court and the High Court have recorded an order of acquittal."

This Court would be justified in interfering with the judgment of acquittal of the High Court only when there are very substantial and compelling reasons to discard the High Court decision. When we apply the test laid down by this Court repeatedly in a large number of cases, the irresistible conclusion is that the High Court in the impugned judgment has not correctly followed the legal position."

14.In another decision of this Court in the case of Sannaia Subba Rao & Ors. Vs. State of A.P. reported at 2008 (17) SCC 225, one of us, has referred to and quoted with approval the general principles while dealing with an appeal against acquittal, wherein, it was clearly mentioned that; the appellate court has full power to review, relook and re-appreciate the entire evidence based on which the order of acquittal is founded; further it was also accepted that the Code of Criminal Procedure puts no limitation or restriction on the appellate court to reach its own conclusion based on the evidence before it.

15.In the case of Sidhartha Vashisht alias Manu Sharma v. State (NCT of Delhi) reported at (2010) 6 SCC 1 this court held as follows: -

"27. The following principles have to be kept in mind by the appellate court while dealing with appeals, particularly against an order of acquittal:

(i) There is no limitation on the part of the appellate court to review the evidence upon which the order of acquittal is founded.

(ii) The appellate court in an appeal against acquittal can review the entire evidence and come to its own conclusions.

(iii) The appellate court can also review the trial court's conclusion with respect to both facts and law. 

(iv) While dealing with the appeal preferred by the State, it is the duty of the appellate court to marshal the entire evidence on record and by giving cogent and adequate reasons set aside the judgment of acquittal.

(v) An order of acquittal is to be interfered with only when there are "compelling and substantial reasons" for doing so. If the order is "clearly unreasonable", it is a compelling reason for interference.

(vi) While sitting in judgment over an acquittal the appellate court is first required to seek an answer to the question whether findings of the trial court are palpably wrong, manifestly erroneous or demonstrably unsustainable. If the appellate court answers the above question in the negative the order of acquittal is not to be disturbed. Conversely, if the appellate court holds, for reasons to be recorded, that the order of acquittal cannot at all be sustained in view of any of the above infirmities, it can reappraise the evidence to arrive at its own conclusion.

(vii) When the trial court has ignored the evidence or misread the material evidence or has ignored material documents like dying declaration/report of ballistic experts, etc. the appellate court is competent to reverse the decision of the trial court depending on the materials placed."

16.Therefore, one of the settled position of law as to how the Court should deal with an appeal against acquittal is that, while dealing with such an appeal, the appellate Court has no restriction to review and relook the entire evidence on which the order of acquittal is founded. On such review, the appellate Court would consider the manner in which the evidence was dealt with by the lower Court. At the same time, if the lower Court's decision is based on erroneous views and against the settled position of law, then such an order of acquittal should be set aside.

17.Another settled position is that, if the trial Court has ignored material and relevant facts or misread such evidence or has ignored scientific documents, then in such a scenario the appellate court is competent to reverse the decision of the trial court.

18.Therefore keeping in mind the aforesaid broad principles of the settled position of law, we would proceed to analyse the evidence that is adduced and come to the conclusion whether the decision of the High Court should be upheld or reversed.