Quarterly Digest

In the present case, the interest has been awarded at the rate of 16 per cent on principal sum from the date of commencement of arbitration till the date of award i.e. 12.9.1992. This is covered by second contingency referred above where the rate of interest find reasonable by Arbitrator/Umpire can be allowed. For subsequent period Arbitrator has awarded interest at the rate of 6 per cent. The aforesaid interest thus is in conformity with Clause 7-A of “First Schedule” of Act, 1940 as inserted by Act, 1976.

In B.V. Radha Krishna vs. Sponge Iron India Ltd. 1997 (1) Arb 412 : (AIR 1997 SC 1324), the Apex Court upheld the award of an Arbitrator granting interest by referring to Section 3 of Interest Act, 1978. However, for this Court it is not necessary to refer any other Statute for the reason that by virtue of amendment in the Act, 1940 in the State of U.P., in First Schedule, the provision for interest has been made one of the implied conditions of agreement and therefore the award granting interest strictly in accordance with Clause 7-A cannot be said to be illegal. The Appellate Court, therefore, has rightly upheld the award granting interest.

In view of above discussions and exposition of law, this Court has no hesitation in observing that Trial Court erred in interfering with the findings of Arbitrator as if it was sitting in appeal and Appellate Court has rightly allowed the appeal restoring the award and making it rule of the Court by rejecting the objections. (State of U.P. vs. M/s. Ram Pal Singh; 2012 (5) ALJ 720)

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Arbitration and Conciliation Act

Section 11(6) – Powers and functions of the Chief Justice or his designate – Adjudicatory and judicial – Cannot be exercised in piecemeal manner

The exposition of law by a seven Judge Bench of this Court in SBP & Co. 2, leaves no manner of doubt that the procedure that is being followed by the Calcutta High Court with regard to the consideration of the applications under Section 11 of the 1996 Act is legally impermissible. The piecemeal consideration of the application under Section 11 by the Designate Judge and another Designate Judge or the Chief Justice, as the case may be, is not contemplated by Section 11. The function of the Chief Justice or Designate Judge in consideration of the application under Section 11 is judicial and such application has to be dealt with in its entirety by either Chief Justice himself or the Designate Judge and not by both by making it a two-tier procedure as held in Modi Korea Telecommunications Ltd. 1. The distinction drawn by the Division Bench of Calcutta High Court in Modi Korea Telecommunications Ltd.1 between the procedure for appointment of arbitrator and the actual appointment of the arbitrator is not at all well founded. Modi Korea Telecommunications Ltd.1 to the extent it is inconsistent with SBP & Co.2 stands overruled. (Hindustan Copper Ltd. vs. Monarch Gold Mining Co. Ltd.; 2012(7) Supreme 415)

S. 31(5) - Delivery of the signed award to the party is mandatory

The view taken in Pushpa Devi Bhagat’s case is in relation to the authority given to an Advocate to act on behalf of a party to a proceeding in the proceedings itself, which cannot stand satisfied where a provision such as Section 31 (5) of the 1996 Act is concerned. The Said provision clearly indicates that a signed copy of the Award has to be delivered to the party. Accordingly, when a copy of the signed Award is not delivered to the party himself, it would not amount to compliance with the provisions of Section 31(5) of the Act. The other decision cited by Mr. Ranjit Kumar in Nilakantha Sidramappa Nigshetti’s Case was rendered under the provisions of the Arbitration Act, 1940, which did not have a provision similar to the provisions of Section 31(5) of the 1996 Act. The said decision would, therefore, not be applicable to the facts of this case also. (Benarsi Krishna Committee & Ors. V. Karmyogi Shelters Pvt. Ltd.; 2012 (7) Supreme 140)

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Civil Procedure Code

S. 9 – Electricity Act, S. 145 – Bar to Civil Court’s jurisdiction – Applicability – Suit raising dispute regarding payment of bill and disconnection of electricity – Aggrieved party can move to appellate authority under revisions of Act of 2003 – Civil suit filed by party not maintainable in view of bar to Civil Court’s jurisdiction as provided under S. 145 of Act

In the present case, the suit of the plaintiff was itself not maintainable as there was an express bar and, therefore, the matter was liable to be dismissed in view of Section-9, Code of Civil Procedure, therefore, this Court finds that there is no substantial question of law on which this appeal can be admitted. (Kulsoom Khan alias Kulsoom Begum v. Uttaranchal Power Corporation Ltd.; AIR 2012 Uttarakhand 105)

S. 9—Land Acquisition Act - Ss. 4, 6 Nagar Mahapalika Adhiniyam, S. 365(2)—Jurisdiction of Civil Court—Ouster of—Acquisition of land made under Land Acquisition Act cannot be challenged in Civil Court

The authority of the Supreme Court ousting the jurisdiction of the Civil Court to entertain suit challenging land acquisition under a local Act Squarely applies to the acquisition for schemes under U.P. Nagar Maha Palika Adhiniyam (U.P.M.C. Act). (Mithai Lal vs. State of U.P.; 2012 (5) ALJ 682)

S. 11—Res Judicata—Applicability—Acquisition of land—Earlier writ proceedings relating to re-determination of compensation—Judgment in writ petition cannot operate as resjudicata against A.D.A.

It is clear that though a decision given at an earlier stage of suit will bind the parties at later stages of the same suit, but it is equally well settled that because a matter has been decided at an earlier stage by an interlocutory order and no appeal has been taken therefrom or no appeal did lie, a higher Court is not precluded from considering the matter again at a later stage of the same litigation. Accordingly, in any view of the matter this Court is not precluded from examining the correctness of the decision of the Courts below on all issues. (Union of India vs. Indrajit Tewari; 2012 (5) ALJ 586)

S. 11 - Provincial Small Causes Courts Act, S. 15 – U.P. Urban Buildings (Regulation of Letting, Rent & Eviction) Act, Ss. 2(2), 21 – Suit for eviction - Bar of res judicata - For operation of res judicata, judgment should be passed by court of competent jurisdiction

The only question argued before this court was landlord earlier filed an application under Section 21 of U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as “Act 1972”) before Prescribed Authority i.e. P.A. Case no. 2 of 1983 seeking release of premises in question on the ground of personal need. The application was partly allowed vide order dated 13.12.1983 by Prescribed Authority directing eviction of defendant No. 1 and 2, namely, Prabhu Dayal and Ram Naresh and directing them to hand over possession of vacant premises to plaintiff No. 1, i.e. respondent No. 3 in the present writ petition, but it was dismissed against present petitioner and one Fakire Yadav.

Vide plaint dated 24.4.1984, respondent No. 3, however, filed another suit No. 13 of 1984 in the Court of Judge, Small Cause Court, Konch seeking eviction of petitioner and stated therein that the construction of premises in question since was completed in 1977 therefore Act No. 13 of 1972 (referred to as “Act, 1972” hereinabove) was not applicable to premises in question. Hence he filed the aforesaid suit of 1984. Petitioner raised an objection that once a suit under Section 21 of Act, 1972 was filed presuming that Act No. 13 of 1972 was applicable and that was decided, no suit was maintainable on the ground that Act No. 13 of 1972. The finding given by prescribed Authority would operate as res judicata and therefore the subsequent suit was wholly illegal and not maintainable.

Both the Court below have framed issue, “whether Act No. 13 of 1972 was applicable to the premises in question” and have recorded a finding that building in dispute admittedly having been completed in 1977, Act No. 13 of 1972 would not be applicable to the premises in question. This finding could not be shown perverse of otherwise bad.

It was contended that once a person has taken legal steps under a particular statue and has failed, thereafter he cannot retract by taking another step on the ground that earlier step was illegal or not maintainable and therefore the Courts below have erred by rejecting his submission in this respect.

In this case the building in question having been constructed and completed in 1977, in 1983, then years having not passed, Act No. 13 of 1972 was not applicable by virtue of Section 2(2) of Act, 1972. That being so the Prescribed Authority under Section 21 of Act, 1972 lacked patent jurisdiction. A jurisdiction cannot be conferred even by consent of parties. It is an elementary principle, where a Court has no jurisdiction over the subject-matter of the action in which an order is made, such order is wholly void, for jurisdiction cannot be conferred by consent of parties. No waiver or acquiescence on their part can make up the patent lack or defect of jurisdiction. If the decision/order of court/authority is void for want of jurisdiction over the subject-matter, it since the essential pre-requisite is that it should be the within the meaning of Section 11 of the Civil procedure Code. Something which is wholly without jurisdiction, that is nullity in the eyes of law, no principle of law would come to confer any kind of effectiveness to such proceedings so as to have any legal consequence. (Ramesh Chandra Yadav II Addl. District Judge, Jalaun at Orai and Ors; 2012 (6) ALJ 130)

S. 47 - Execution of decree - Impleadment of necessary party - Suit for specific performance filed by decree holder - Not bad for want of impleadment of Bank Manager with whom judgment debtor had some transaction

Under Section 47 of the Code of Civil procedure, the main plea raised by the revision petition/judgment debtor was that the suit for specific performance filed by the decree holder was bad for want of impleadment of the necessary party namely, the Bank Manager. Ex facie and prima facie the said plea is not tenable under law and prima facie the said Bank Manager with whom the judgment debtor had some transaction is having nothing to do with specific performance suit.

Hence, there is nothing wrong in the order passed by the lower Court. It is not that in all cases blindly, the Court is expected to number application filed under Section 47 of the Code of Civil Procedure and deal with it; if prima facie, no case is made out, then the lower Courts are not enjoined to mechanically number it and waste its judicial time. (A. L. Helan Christina Mary v. Sivaganesh; AIR 2012 Mad 249)

S. 100—Second Appeal—Interference with concurrent findings of fact—Scope of

In Major Singh vs. Rattan Singh, (1997) 3 SCC 546, it has been observed that when the courts below had rejected and disbelieved the evidence on unacceptable grounds, it is the duty of the High Court to consider whether the reasons given by the courts below are sustainable in law while hearing an appeal under/S. 100 of the Code of Civil Procedure.

In Vidhyadhar vs. Manikrao, (1999) 3 SCC 573, it has been ruled that the High Court in a second appeal should not disturb the concurrent findings of fact unless it is shown that the findings recorded by the courts below are perverse being based on no evidence or that on the evidence on record no reasonable person could have come to that conclusion. We may note here that solely because another view is possible on the basis of the evidence, the High Court would not be entitled to exercise the jurisdiction u/s. 100 of the Code of Civil Procedure. This view of ours has been fortified by the decision of this Court in Abdul Raheem vs. Karnataka Electricity Board, (2007) 14 SCC 138. (Vishwanath Agrawal vs. Sarla Vishwanath Agarwal; (2012) 3 SCC (Cri) 347)

S. 114 - Review – Notice of SLP not served on respondent - Review petition maintainable

In the case on hand, though during the course of hearing, a reference was made as to the presence of learned Attorney General by learned senior counsel for the respondents. Court are satisfied that the Union of India was not given an opportunity to represent its case due to mistake on the part of the Registry. Applying the well settled principles governing a review petition and giving our anxious and careful consideration to the facts and circumstances of this case, Court have come to the conclusion that the review petition filed by the Union of India should be admitted on the basis of the above reasoning. (Union of India v. Sandur Manganese & Iron Ores Ltd & Ors.; 2012 (7) Supreme 318)

S. 115 and O. 39, Rules 1 & 2 - Wakf Act, 1995 – S. 83 - Rejection of Temporary injunction application - Revision against - Maintainability of

Since there is specific provision in the Act under sub-section (9) of Section 83 of the Act that no appeal shall lie against any decision or order whether interim or otherwise, given or made by the Tribunal, therefore, in view of the Proviso appended to sub-section (9) of Section 83 of the Act, the order passed by the Tribunal are revisable. So far as the correctness, legality or propriety of determination is concerned, this Court is of the view that the matter can be examined in revision, therefore, the present revision is maintainable in respect of the order passed by the Tribunal on the temporary injunction application. (Haji Rao Sharafat Ali vs. State of Uttarakhand; 2012(3) ARC 853 (Uttarakhand High Court)

O. 2 R. 2(2) and (3) - Applicability of – Cause of action in the later suit must be the same as in the first suit

The cardinal requirement for application of the provisions contained in Order II Rule 2(2) and (3), therefore, is that the cause of action in the later suit must be the same as in the first suit. It will be wholly unnecessary to enter into any discourse on the true meaning of the said expression, i.e. cause of action, particularly, in view of the clear enunciation in a recent judgment of this Court in the Church of Christ Charitable Trust and Educational Charitable Society, represented by its Chairman v. Ponniamman Educational Trust represented by its Chairperson/Managing Trustee [JT 2012 (6) SC 149]. The huge number of opinions rendered on the issue including the judicial pronouncements available does not fundamentally detract from what is stated in Halsbury's Law of England. (4th Edition). The following reference from the above work would, therefore, be apt for being extracted herein below:

“Cause of Action” has been defined as meaning simply a factual situation existence of which entitles one person to obtain from the Court a remedy against another person. The phrase has been held from earliest time to include every fact which is material to be proved to entitle the plaintiff to succeed, and every fact which a defendant would have a right to traverse. ‘Cause of action’ has also been taken to mean that particular action the part of the defendant which gives the plaintiff his cause of complaint, or the subject-matter of grievance founding the action, not merely the technical a cause of action.”

(M/s. Virgo Industries (Eng.) P. Ltd. Vs. M/s. Venturctech Solutions P. Ltd.; 2012(6) Supreme 557)

(a) Civil Procedure Code, 1908, O. 6 R. 17 - Amendment of Pleadings - Held, the power to allow the amendment is wide and can be exercised at any stage of the proceedings in the interest of justice

(b) Civil Procedure Code, 1908, O. 6 R. 17 - Amendment of Pleadings - Held, it is settled law that if necessary factual basis for amendment is already contained in the plaint, the relief sought on the said basis would not change the nature of the suit - Challenge to the voidness of the sale deed was implicit in the factual matrix of the unamended plaint, therefore the relief of cancellation of sale deeds as sought by amendment does not change the nature of the suit

We reiterate that all amendments which are necessary for the purpose of determining the real questions in controversy between the parties should be allowed if it does not change the basic nature of the suit. A change in the nature of relief claimed shall not be considered as a change in the nature or suit and the power of amendment should be exercised in the larger interests of doing full and complete justice between the parties.

In the light of various principles we are satisfied that the appellants have made out a case for amendment and by allowing the same, the respondents herein (Defendant Nos. 1-3) are in no way prejudiced and they are also entitled to file additional written statement if they so desire. Accordingly, the order of the trial court dated 06.06.2007 dismissing the application for amendment of plaint in Suit No. 320 of 2003 as well as the High Court in Civil Revision No. 4486 of 2007 dated 13.11.2007 are set aside. The application for amendment is allowed. Since the suit is of the year 2003, Court direct the trial Court to dispose of the same within a period of six months from the date of receipt of copy of the judgment after affording opportunity to all the parties concerned. The appeal is allowed. No order as to costs. (Abdul Rehman and another Vs. Mohd. Ruldu and others; (2012) (30) LCD 2032 Supreme Court)

O. - 7 R. 11 - Rejection of Plaint - Exercise of power under - If plaint found manifestly vexatious and merit-less then Munsif should exercise his power under Order 7, Rule 11

The petitioners have not moved any application before the learned Trial Court for rejection of plaint under Order VII, Rule 11 C.P.C. Without resorting to the judicial forum, the petitioners have directly approached this Court which cannot capture or override, overlap or prevail over the hierarchical judicial system prevailing in this Country for centuries together. (Khan Mohammad vs. Civil Judge (J.D.) Kaiserganj, District Behraich; 2012 (3) ARC 779 (All HC Lucknow-Bench)

O. 7, R. 11 – Power to reject plaint can be exercised at any stage of suit i.e. before registering plaint or after issuance of summon to defendent or at any time before conclusion of trial

Since the appellant herein, as the first defendant before the trial Judge, filed application under Order 7 Rule 11 of the Code for rejection of the plaint on the ground that it does not show any cause of action against him.

It is clear from the Order 7, Rule 11 CPC, that where the plaint does not disclose a cause of action, the relief claimed is undervalued and not corrected within the time allowed by the court, insufficiently stamped and not rectified within the time fixed by the court, barred by an law, failed to enclose the required copies and the plaintiff fails to comply with the provisions of Rule 9, the court has no other option except to reject the same. A reading of the provision of Order 7, Rule 11 CPC also makes it clear that power under Order 7, Rule 11 of the Code can be exercised at any stage of the suit either before registering the plaint or after the issuance of summons to the defendants or at any time before the conclusion of the trial. (Church of Christ Charitable Trust & Educational Charitable Society v. Ponniamman Educational Trust; (2012) 8 SCC 706)

O. 7, R. 11(a) and S. 20 – “Cause of action” – Meaning – Reiterated

While scrutinizing the plaint averments, it is the bounden duty of the trial court to ascertain the materials for cause of action. The cause of action is a bundle of facts which taken with the law applicable to them gives the plaintiff the right to relief against the defendant. Every fact which is necessary for the plaintiff to prove to enable him to get a decree should be set out in clear terms. It is worthwhile to find out the meaning of the words “cause of action”. A cause of action must include some act done by the defendant since in the absence of such an act no cause of action can possibly accrue.

It is useful to refer the judgment in Bloom Dekor Ltd. v. Subhash Himatlal Desai; (1994) 6 SCC 322, wherein a three-Judge Bench of the Court held as under:

“28. By ‘cause of action’ it is meant every fact, which, if traversed, it would be necessary for the plaintiff to prove in order to support his right to a judgment of the court, (Cooke v. Giff; (1873) LR 8 CP 107); in other words, a bundle of facts which it is necessary for the plaintiff to prove in order to succeed in the suit.”

It is mandatory that in order to get relief, the plaintiff has to aver all material facts. In other words, it is necessary for the plaintiff to aver and prove in order to succeed n the suit. (Church of Christ Charitable Trust & Educational Charitable Society v. Ponniamman Educational Trust; (2012) 8 SCC 706)

O. 9, R. 4 Limitation Act, S. 5 - Restoration of suit - Consideration of

The Court of considered opinion that trial court and revisional court below were required to examine the cause shown by the petitioner in restoration application moved before the trial court in respect of delay caused after 14.2.1997 and they were not required to examine and assess the antecedents of the petitioner prior to the aforesaid date for rejecting the said application for restoration of the suit in question. (Ram Nayan vs. DJ Gorakhpur; 2012(3) ARC 836 (All HC)

O. 9 R. 7 - Order recalling the order for proceeding ex parte against defendants - Imposing condition that the defendant shall deposit a sum equivalent to 10% of the amount claimed in the suit which would be refundable - Condition directing deposit of refundable amount held to be legally unsustainable

The respondent-Bank filed a suit for recovery of a certain amount. The suit proceeded and 11^th October, 1995 was the date fixed for hearing. The suit was proceeding ex-parte as the defendants had not put in appearance.

This attitude of the defendants who are the revisionists before this Court led to the passing of the impugned order 10.10.1997 imposing a condition that the defendant shall deposit a sum equivalent to 10% of the amount as claimed in the suit which would be refundable in the circumstances as defined in the impugned order itself.

This revision was preferred by the defendants questioning correctness of the said order as being beyond the purview of the court to impose such condition while exercising powers under Rule 7 of Order IX of the Civil Procedure Code, and this Court way back in the year 1997 stayed all further proceedings in the suit.

Having considered the aforesaid submissions and facts on record, there is no doubt that the defendants were not cooperating with the Court that let to the passing of the order on 11^th October, 1995. They, however, moved an application under Order IX Rule 7 C.P.C. and the Court passed the impugned order for depositing 10% of the amount claimed under the plaint allegations. In the opinion of the Court the word otherwise used in Order IX Rule 7 C.P.C. does not contemplate the imposition of such a condition and it only indicates that the Court can pass an order of imposing costs or impose any such terms otherwise that may be in the nature of costs. The amount directed to be deposited. Therefore, cannot be made refundable as has been done by the trial court. In opinion of the Court, the impugned order is manifestly contrary to the scope of the provisions of under Rule 7 of Order IX of C.P.C., and cannot be sustained.

At the same time, keeping in view the attitude of the defendant and the manner in which the case has proceeded, it would be in the interest of justice to impose costs for the purpose of allowing the applicant-defendant to participate in the suit from the stage that the ex-parte order was passed on 11^th October, 1995.

In opinion of Court a sum of Rs. 5,000/- as cost would be sufficient for the said purpose which shall be deposited by the defendants-revisionist before the Court below within one month from the date of passing of this order.

The revision is allowed. The order dated 10.10.1997 is set aside. The ex-parte order dated 10.10.1995 is also set aside as costs have been imposed by this Court and the suit shall now proceed on day to day basis without any further unnecessary adjournments being granted to the defendant-revisionist. (M/S New Manufacturing Com. and others Vs. State Bank of India; (2012 (30) LCD 2614) (Allahabad High Court)

O. 9, R. 13 - Hindu Marriage Act (25 of 1955), Ss. 13, 28 - Application for setting aside ex parte decree did not stay infructuous only on ground of husband's remarriage on next day of service of notice for application - Second remarriage was totally mala fide and performed only to defeat application filed by wife - Setting aside ex parte decree, not improper

After passing of a decree of divorce dissolving marriage between the parties, either party to the marriage can lawfully remarry in the following circumstances:-

(i) Immediately after passing of the decree of divorce without any waiting period, if there is no right of appeal against the decree by which the marriage has been dissolved.

(ii) If there is such a right of appeal, the time for appealing has expired without on appeal having been presented. Therefore, in a case in which a decree of divorce has been passed dissolving the marriage between the parties and the aggrieved party does not file an appeal within the period of 30 days as prescribed by S. 28 of the Act, the other party, on the expiry of such period of 30 days, has a right to lawfully remarry.

(iii) In a case an appeal has been presented and the same has been dismissed, any of the party to the decree is entitled to marry again after dismissal of such an appeal. That means during pendency of appeal none of the party is entitled to remarry.

In a case in which ex parte decree of divorce has been passed by the Court, provisions of O. 9, R. 13, CPC are applicable and the party against whom the ex parte decree has been passed has a right to file an application under this provision for setting aside the ex parte decree. Although, S. 15 of the Act does not refer to an application filed under O. 9, R. 13, CPC but on the analogy of an appeal as referred in this section, the provisions of O. 9, R. 13, CPC are also applicable and in view of that, if S. 15 of the Act is further analyzed, the circumstances In which a party to the decree of divorce can lawfully remarry emerges as follows:-

(i) If an application under O. 9, R. 13, CPC for setting aside an ex parte decree of divorce is not filed within the period of 30 days as prescribed in Art. 123 of Limitation Act, the other party in whose favour ex parte decree has been passed has a right to lawfully remarry after the expiry of period of 30 days.

(ii) In a case in which an application under O. 9, R. 13, CPC has been filed, no party to the decree is entitled to lawfully marry again unless that application has been dismissed. That means during pendency of the application neither of the party is entitled to marry again.

Where notice issued for application filed under O.9, R. 13, CPC to set aside ex parte decree granting divorce was served upon husband and he married again on next day in accordance with Customs and Usages of Arya Samaj, application under O. 9, R. 13, CPC filed by wife was pending during re-Marriage of husband and, therefore, the husband was not entitled to lawfully marry again. Application for setting aside the ex parte decree did not stand infructuous as soon as husband remarried. (Kuldip Kumar Lal v. Suman Rani; AIR 2012 Raj 175)

O. 11, R. 14, 15 and 21 – Evidence Act, 1872, Section 114 (g) – Presumption – Party duty bound to lead the best evidence in his possession – If such material withheld Court may draw adverse inference

The law on the issue can be summarised to the effect that, issue of drawing adverse inference is required to be decided by the Court taking into consideration the pleadings of the parties and by deciding whether any document/ evidence, withheld, has any relevance at all or omission of its production would directly establish the case of the other side. The Court cannot loose sight of the fact that burden of proof is on the party which makes a factual averment. The Court has to consider further as to whether the other side could file interrogatories or apply for inspection and production of the documents etc. as is required under Order XI, C.P.C. Conduct and diligence of the other party is also of paramount importance. Presumption or adverse inference for non-production of evidence is always optional and a relevant factor to be considered in the background of facts involved in the case. Existence of some other circumstances may justify non-production of such documents on some reasonable grounds. In case one party has asked the Court to direct the other side to produce the document and other side failed to comply with the Court’s order, the Court may be justified in drawing the adverse inference. All the pros and cons must be examined before the adverse inference is drawn. Such presumption is permissible, if other larger evidence is shown to the contrary. (Union of India vs. Ibrahim Uddin; 2012(117) RD 783)

O. 12, R. 6 - Admission made on the basis of pleadings in a given case – Cannot be taken as an admission in a different fact situation

Admission made on the basis of pleadings in given case cannot obviously be taken as an admission in a different fact situation. That precisely is the view taken by this court in Jeevan Diesel & Electricals Ltd. relied upon by the High Court where this Court has observed:

“Whether or not there is a clear, unambiguous admission by one party of the case of the other party is essentially a question of fact and the decision of this question depends on the fact of the case. The question, namely, whether there is a clear admission or not cannot be decided on the basis of a judicial precedent. Therefore, even though the principles in Karam kapahi may be unexceptionable they cannot be applied in the instant case in view of totally different fact situation.”

(M/s Payal Vision Ltd. V. Radhika Choudhary; 2012 (7) Supreme 119)

O. 21, R. 1 – Scope of - Does not confine to decretal amount – It includes all monies

Once Court steer clear of the said position as regards the decree passed by the learned Single Judge, Court are posed with the next question as to while applying Order XXI Rule 1 when payments were made towards the satisfaction of the said decree as provided under Order XXI Rule 1 (a), (b) and (c) what would be the implication of sub-rules 4 and 5 of Order XXI. In order to understand the said legal implication of Order XXI Rule 1 read along with sub-rules 4 and 5, in the foremost it will be necessary to understand what is contemplated under Order XXI Rule ·1, in particular, the opening set of expressions, namely, “all money, payable under a decree shall be paid as follows, namely:-

It will be necessary to keep in mind that the said provision does not state the decretal amount. The expression used is all money payable under a decree. TERSELY stated, as pointed out by us in the earlier paragraph, the decree dated 31.05.1985 affirm the award amount, the interest payable at the rate of 12 per cent per annum from 12.03.1981 till the date of its realization if not paid within two months from the date of the decree, namely, 31.05.1985. Therefore, the said decree dated 3l.05.1985 consisted of the award amount plus interest payable thereon from 12:0.3.1981 up to the date of the decree, namely, 3l.05.1985 to be payable within two months from that date and in the event of non- payment of the said amount within two months from 3l.05.1985 to calculate future interest at the very same rate of 12 per cent per annum from the date of the decree till the realization of the award amount. In our considered opinion, a reading of the opening set of expressions of Order XXI Rule 1 is clear to the above effect. In the case on hand the payment effected by the appellant after 3l.05.1985 was once on 18.10.1985 and thereafter on 13.12.2000 when the issue was dealt with by the Court in the order dated 12.07.2002. It is not in dispute that the award amount of Rs.1,41,68A74/- earned interest at the rate of 12 per cent per annum up to the date of first payment, namely, 18.10.1985 which worked out to a sum of Rs.78,30,314/- i.e. for the period from 12.03.1981 to 18.10.1985. The total amount payable as on that date under the decree, both the award amount along with the interest, worked out to Rs.2,19,61,134/-. The said figure, as calculated by the appellant, was not disputed by the respondent. On 18.10.1985, the appellant paid a sum of Rs.1 crore by way of deposit pursuant to the order of the Division Bench dated 13.09.1985 when the appellant challenged the decree dated 31.05.1985. The respondent was also permitted to withdraw the said sum of Rs.1 crore in the said order dated 13.09.1985. (Bharat Heavy Electrocals Ltd. V. R.S. Avtar Singh & Co.; 2012 (7) Supreme 243)

O. 21, Rules 1 & 4 - Rs. 1 crore paid by judgment debtor as part payment of entire dues on the date of notice and also with drawer by decree holder

The following principles were emerged on the basis of the decision of the Court:

(a) The general rule of appropriation towards a decretal amount was that such an amount was to be adjusted strictly in accordance with the directions contained in the decree and in the absence of such directions adjustments be made firstly towards payment of interest and cost and thereafter towards payment of the principal amount subject, of course, to any agreement between the parties.

(b) The legislative intent in enacting sub-rules 4 and 5 is clear to the pointer that interest should cease to run on the deposit made by the judgment debtor and notice given or on the amount being tendered outside the Court in the manner provided in Order XXI Rule 1 sub-clause (b).

(c) If the payment made by the judgment debtor falls short of the decreed amount, the decree holder will be entitled to apply the general rule of appropriation by appropriating the amount deposited towards the interest, then towards cost and finally towards the principal amount due under the decree.

(d) Thereafter, no further interest would run on the sum appropriated towards the principal. In other words if a part of the principal amount has been paid along with interest due thereon as on the date of issuance of notice of deposit interest
on that part of the principal sum will cease to run thereafter.

(e) In cases where there is a shortfall in deposit of the principal amount, the decree holder would be entitled to adjust interest and cost first and the balance towards the principal and beyond that the decree holder cannot seek to reopen.

(Bharat Heavy Electricals Ltd. V. R.S. Avtar Singh & Co.; 2012 (7) Supreme 243)

O. 21, R. 7 r/w S. 304 and S. 3(3) (c), Interest Act - Payable under a decree - Date of commencement of Interest or awarded changed by Rule of the Court

When court examined the Rule of the Court, Court wish to specifically note that the Court made a conscious direction to the specific effect that the entitlement of the respondent for future interest at the rate of 12 per cent per annum from the date of decree, namely, 31.05.1985 till the date of realization would be on the award amount if it was not paid within two months from 31.05.1985. Therefore, the calculation of interest payable up to the date of the decree as well as the time granted therein, namely, two months from 31.05.1985 and what is interest payable subsequent thereto has been clearly set out in the said part of the Rule. If the said Rule is to be understood in the manner in which the Court had directed the calculation of interest to be made it can be only in the following manner, namely, that the interest from 12.03.1981 up to 3l.07.1985 at the rate of 12 per cent per annum would be on the award amount, namely, Rs.1,41,68,474/-. If the award amount was not paid, namely, the sum of Rs.1,41,68,474/- on or before 3l.07.1985, the future interest again at the rate of 12 per cent per annum can be claimed In our considered opinion, it should be or the award amount which was in a sum of Rs.1,41,68,474/-. Court say so because both the award of the learned Arbitrator as well as the Rule of the Court makes a clear distinction between the award amount and the interest payable. The award having become the Rule of the Court and while making the said Rule it was clearly made known that the award contained an amount which was payable to the respondent quantifying the said amount in a sum of Rs.1,41,68,474/-. After quantification of the said amount, the learned Arbitrator dealt with the grant of interest independent of the said payment and fixed the rate of such interest at 12 per cent per annum. When such a clear distinction was consciously made by the learned Arbitrator while passing the award no one can even attempt to state that the award amount and the interest mentioned in the award dated 15.03:1982 should be merged together and state that the Court award amount would comprise of a sum of Rs.1,41,68,474/- and the interest worked out thereon became payable when once it was made the Rule of the Court and thereby became the decretal amount. Such a construction of the said award cannot be made having regard to the specific terms of the decree dated 31.05.1985. (Bharat Heavy Electrocals Ltd. V. R.S. Avtar Singh & Co.; 2012 (7) Supreme 243)

O. 23, R. 3 - When parties arrive at a compromise settlement court should take notice and order accordingly

In view of the agreement that is executed between the parties outside the court, Court dispose of these appeals in accordance with the settlement that is arrived at between the parties under the aforesaid agreement. (T.T. Raghunathan & Anr. V. New Bridge Holding B.V. & Ors.; 2012 (7) Supreme 128)

O. - 26, R. 10 & 11 Appointment of Commissioner – For spot inspection - Necessary condition

It is well settled that under Order 26 Rule 10 and 11 of Code of Civil Procedure the Court is not bound to appoint Commissioner on mere asking of parties but it is for the court when it found necessary to appoint Commissioner for some further investigation or information, it can do so. Power of the court to appoint Commissioner is not disputed but it is not the legal right of parties to force the court to appoint Commissioner. A local inspection, whether necessary or not, depends on several facts, factors and circumstances which have been considered by the court below and in absence of anything to show that court finds it necessary to obtain Commissioner's report, such appointment cannot be forced.

Considering the aforesaid provisions a Special Bench of this Court in The Sunni Central Board Vs. Sri Gopal Singh Visharad, 2010 ADJ 1 (SFB) in the judgement delivered by (Hon. Sudhir Agarwal, J.) in paras 3749 and 3750 observed that a discretion is vested in the Court. When it is of the opinion that any local inspection or scientific investigation is required, it can order accordingly so as to help it in extracting truth. This shows that appointment of Commissioner for local inspection is not a matter of right or matter of course but it is for the Court to satisfy itself whether it is so required to extract the truth or not. If in its opinion it is not so required it cannot be compelled. (Som Singh vs. Smt. Santoshi Devi; 2012(3) ARC 520 (All HC)

O. 39, R. 1 - Constitution of India, Articles, 133, 136 - Discretionary interim order passed by High Court - Interference by Supreme Court only in atypical cases

There is, a self-imposed limited discretion for interference available to Supreme Court, and it would, generally, be more appropriate for an aggrieved litigant to approach the High Court for rectifying any error that it may have committed in passing an interim order. However in an emergent and appropriate situation it is always open to a litigant to approach Supreme Court in its remedial jurisdiction. It is only in a typical case that Supreme court entertains a petition against a discretionary interim order passed by the High Court where, for example, the repercussions are grave or the legal basis for passing the interim order are obscure or there is a miscarriage of justice or it is imperative to the Supreme Court exercises its corrective jurisdiction. (Vice-chancellor, Guru Ghasidas University v. Craig Mcleod; AIR 2012 SC 3356)

O. 39, Rules 1 & 3—Refusal to grant interim injunction against forcible possession of property—Validity

Court observed that the property in dispute was a joint property in which there were various co-shares, it was not possible for respondents-1 and 2 to give possession to the plaintiff over any specific portion of the property. Neither in the alleged deed dated 15.11.2009, nor in the plaint, any specific portion of the property has been shown, over which the possession of the plaintiff is being claimed. In the plaint, the plaintiff claimed 1/3^rd western portion, while share of defendants- 1 and 2 is less than 1/3^rd as such, they were not able to hand over possession of 1/3^rd share. In view of the aforesaid discussion, the suit of the appellant being based upon an unregistered document is not maintainable. The plaintiff has no prima facie case and accordingly not entitled for interim injunction. The order of the trial Court does not suffer from any illegality. The appeal has no merit and is accordingly dismisses. (Subhash Verma vs. Narendra Kumar; 2012 (5) ALJ 686)

O. 39, R. 3 – Exparte injunction order - Compliance of mandate of Rules 3 and 3-A

On references Shiv Kumar Chadha’s case, the Hon'ble Supreme Court has held as under:

"The imperative nature of the proviso has to be judged in the context of Rule 3 of Order 39 of the Code. Before the proviso aforesaid was introduced, Rule 3 said 'the Court shall in all cases, except where it appears that the object of granting the injunction would be defeated by the delay, before granting an injunction, direct-notice of the application for the same to be-given to the opposite party'. The proviso' was introduced to provide a condition, where Court proposes to grant an injunction without giving notice of the application to the opposite party, being of the opinion that the object Of granting injunction itself shall be defeated-by delay. The condition so introduced is that the Court 'shall record the reasons' why an ex parte order of injunction was being passed in the facts and circumstances of a particular case. In this background, the requirement for recording the reasons for grant of ex parte injunction cannot be held to be a mere formality. This requirement is consistent with the principle, that a party to a suit, who is being restrained from exercising a right which such party claims to exercise either under a statute or under the common law, must be informed why instead of following the requirement of Rule 3, the procedure prescribed under the proviso has been followed. The party which invokes the jurisdiction of the Court for grant of an order of restraint against a party, without affording an opportunity to him of being heard, must satisfy the Court about the gravity of the situation and Court has to consider briefly these factors in the ex parte order. We are quite conscious of the fact that there are other statutes which contain similar provisions requiring the Court or the authority concerned to record reasons before exercising power vested in them. In respect of some of such provisions, it has been held that they are required to be complied with but non-compliance therewith will not vitiate the order so passed. But same cannot be said in respect of the proviso to Rule 3 of Order 39. The Parliament has prescribed a particular procedure for passing of an order of injunction without notice to the other side, under exceptional circumstances. Such ex parte orders have far-reaching effect, as such a condition has been imposed that Court must record reasons before passing such order. If it is held that the compliance with the proviso aforesaid is optional and not obligatory, then the introduction of the proviso by the Parliament shall be a futile exercise and that part of Rule 3 will be a surplus age for all practical purposes. Proviso to Rule 3 of Order 39 of the Code, attracts the principle, that if a statute requires a thing to be done in a particular manner, it should be done in that manner or not all. This principle was approved and accepted in well known cases of Taylor v. Taylor (1875) 1 Ch D.426: 45 U Ch 373) and Nazir Ahmed v. Emperor (AIR 1936 PC 253 (2): 63 IA 372: 36 Cri LJ 897). This Court has also expressed the same view in respect of procedural requirement of the Bombay Tenancy and Agricultural Lands Act in the case of Ramchandra Keshav Adke v. Govind Joti Chavare; (1975) 1 SCC 915: AIR 1975 SC 915). As such, whenever a Court considers it necessary in the facts and circumstances of a particular case to pass an order of injunction without notice to other side, it must record the reasons for doing so and should take into consideration, while passing an order of injunction, all relevant factors, including as to how the object of granting injunction itself shall be defeated if an ex parte order is not passed. But any such ex parte order should be in force up to a particular date before which the plaintiff should be required to serve the notice on the defendant concerned. In the Supreme Court Practice 1993, Vol.1 at page 514, reference has been made to the views of the English Courts saying: ex parte injunctions are for cases of real urgency where there has been a true impossibility of giving notice of motion .. ..

An ex parte injunction should generally be until a certain day, usually the next motion day ....

Supreme Court observed that it need no emphasis that provisions of Rule 3 and 3-A of Order XXXIX of the Code of Civil Procedure are mandatory in nature. However, the factual position of the-instant case is some what different. Here the learned trial Court fixing date of hearing within thirty days in its impugned order has discussed the facts of the case in brief and has also noted the evidence filed by the respondent in support of his contention and has indicated the reasons for granting ex parte ad interim injunction order. It has observed that as the partnership has not been dissolved, so prima facie case in favour of the plaintiff is found. No doubt in so many words it has not been stated that the object of granting the injunction would be defeated by the delay, but in the facts and circumstances of this case, we find that the provisions of Rule 3 have been substantially followed. (Ramji Singh v. Anuj Kumar Singh; 2012 (6) ALJ 188)

O. 39, R. 4 – Order granting injunction/status quo—Compliance of

In a democratic polity, it is always incumbent upon the governing authorities to implement the interim order or injunction order, granted by the trial Court or this Court. In case, the injunction is not complied with by the private parties, the Court has got ample powers to issue appropriate orders under S. 151, C.P.C., directing the district authorities to implement the injunction granted by it. Non-compliance of the Court’s order or injunction is the antithesis of the rule of law.

In case, an objection is filed under O. 39, R. 4 of the Code of Civil Procedure, it shall be always incumbent upon the trial Court to decide such objection in accordance with law expeditiously. Continuance of an ex parte injunction for a long period, erode the belief and faith of people. Objection filed under O. 39, R. 4 must be decided on priority basis.

Even if the amendment application is moved along with some other application, priority must be given to an application moved under O. 39, R. 4, C.P.C. Reason behind this is that while granting ex parte injunction the affected parties are not being heard. There may be cases where injunction is granted on the basis of pleadings of record raised by the plaintiff. In such situation, defendant may suffer irreparable loss, in case objection is not decided within reasonable period.

Court has got ample power to proceed under the contempt jurisdiction or in case, district authorities fail to enforce the injunction granted by it and feel helpless, the High Court may interfere under extraordinary jurisdiction conferred by Art. 226 of the Constitution of India to strengthen administration of justice and maintain the majesty of law.

Where respondents were raising construction over land in question in spite of fact that trial Court had passed the order directing district authorities to ensure compliance of order passed by it, Court ought to have decided objection filed u/O. 39, R. 4 by opposite parties expeditiously. (Sukhvir Singh vs. The District Inspector of Schools; 2012 (5) ALJ 404)

O. 41, R. 23 - Remand of case - Exercise of – Remand is the last option before any appellate court and it shall be exercise with due and diligence

The appellant has earlier filed FAFO No. 127/2002, which has been decided by this Court vide judgement dated 16.11.2007. That FAFO was also allowed and the Judgment of the Learned District Judge dated 10.1.2002 was set aside and he was directed to take up both the appeals together and decide both the appeals through a common judgment in the light of the observations made hereinabove. Taking advantage of the observation made by this Court, the learned First Appellate Court was set at liberty to exercise option of remanding back the matter, the First Appellate Court has remanded the matter on flimsy grounds and this is not warranted under the law. Remand of case is the last option before any appellate Court, which should be exercised with due care and diligence. It is the duty of every Court of law to decide the lis finally, in an effective manner and, ensure that the dispute between the parties is resolved quickly. (Mumtaz Ullah Khan vs. Rani Govind Kumari; 2012(3) ARC 838 (All HC- Lucknow-Bench)

BACK TO INDEX

Constitution of India

Art. 16—Denial compassionate appointment on the ground that lump sum amount was paid as ex gratia to family of deceased employee is not only ridiculous but also unconscionable

In Court’s opinion, the reasons of rejecting the case of the petitioner for consideration of appointment on compassionate ground is not only ridiculous but also ludicrous besides being wholly unconscionable. It is not the case of the respondents that there is no scheme for considering dependants of deceased employees for appointment on compassionate grounds but this is no ground that merely because ex gratia lump sum amount has been paid, therefore, the petitioner is not entitled for appointment on compassionate ground. (Arvind Kumar Singh vs. State Bank of India; 2012 (5) ALJ 630)

Art. 16—Appointment obtaining suppressing material information/giving false information—Whether unequivocally entail cancellation of appointment/termination of service—Effect of

As noted by Court, all the above decisions were rendered by a Division Bench of this Court consisting of two-Judges and having bestowed our serious consideration to the issue, Court consider that while dealing with such an issue, the Court will have to bear in mind the various cardinal principles before granting any relief to the aggrieved party, namely:

(i) Fraudulently obtained orders of appointment could be legitimately treated as voidable at the option of the employer or could be recalled by the employer and in such cases merely because the respondent employee has continued in service for a number of years, on the basis of such fraudulently obtained employment, cannot any equity in his favour or any estoppels against the employer.

(ii) Verification of the character and antecedents is one of the important criteria to test whether the selected candidate is suitable to the post under the State and on account of his antecedents the appointing authority if find not desirable to appoint a person to a disciplined force can it be said to be unwarranted.

(iii) When appointment was procured by a person on the basis of forged documents, it would amount to misrepresentation and fraud on the employer and, therefore, it would create no equity in his favour or any estoppels against the employer while resorting to termination without holding any inquiry.

(iv) A candidate having suppressed material information and/or giving false information cannot claim right to continue in service and the employer, having regard to the nature of employment as well as other aspects, has the discretion to terminate his services.

(v) Purpose of calling for information regarding involvement in any criminal case or detention or conviction is for the purpose of verification of the character/antecedents at the time of recruitment and suppression of such material information will have clear bearing on the character and antecedents of the candidate in relation to his continuity in service.

(vi) The person who suppressed the material information and/or gives false information cannot claim any right for appointment or continuity in service.

(vii) The standard expected of a person intended to serve in uniformed service is quite distinct from other services and, therefore, any deliberate statement or omission regarding a vital information can be seriously viewed and the ultimate decision of the appointing authority cannot be faulted.

(viii) An employee on probation can be discharged from service or may be refused employment on the ground of suppression of material information or making false statement relating to his involvement in the criminal case, conviction or detention, even if ultimately he was acquitted of the said case, inasmuch as such a situation would make a person undesirable or unsuitable for the post.

(ix) An employee in the uniformed service pre-supposes a higher level of integrity as such a person is expected to uphold the law and on the contrary such a service born in deceit and subterfuge cannot be tolerated.

(x) The authorities entrusted with the responsibility of appointing Constables, are under duty to verify the antecedents of a candidate to find out whether he is suitable for the post of a Constable and so long as the candidate has not been acquitted in the criminal case, he cannot be held to be suitable for appointment to the post of Constable.

Though there are very many decisions in support of the various points culled out in the above paragraphs, inasmuch as we have noted certain other decisions taking different view of coordinate Benches, we feel it appropriate to refer the above-mentioned issues to a larger Bench of this Court for an authoritative pronouncement so that there will enable the Courts to apply the law uniformily while dealing with such issues.

With that view, we feel it appropriate to refer this matter to be considerably by a larger Bench of this Court. (Jitendra Singh vs. State of U.P. Through Principal Secretary, Home & Ors.; 2012 (5) ALJ 503)

Art. 16—Regularization of services—Executive function—Court/Tribunal cannot direct the authorities to frame scheme for regularization of employees of the Railway Employees Consumer Cooperative Society

The respondents were employees of a cooperative society of Railway Employees Consumer Cooperative Society Ltd. By its order dated 30.5.2001, the Central Administrative Tribunal (for short ‘the Tribunal’) has directed the Chairman, Railway Board to formulate a suitable scheme for induction of the respondents and similarly placed employees of other cooperative societies in regular Group ‘D’ posts and alternatively also as Casual Group ‘D’ employees in the railways. This direction has been upheld by the High Court in the impugned judgments.

In court’s opinion, the order of the Tribunal as well as the impugned judgments of the High Court were totally unwarranted and illegal. There is broad separation of power in the Indian Constitution. As held by this Court in Divisional Manager, Aravali Golf Club vs. Chander Hass, 2008 (1) Recent Apex Judgments (R.A.J.) 116 : (2008) 1 SCC 683 “ [2008(1) SLR 728 (SC)], it is not proper for the Judiciary to encroach into the domain of the Legislature or the Executive. The framing of a scheme such as the one done by the Tribunal and approved by the High Court was a purely executive function and could not validly be done by the judiciary. (Union of India vs. Ram Singh Thakur; 2012 (2) SLR 533 (SC)

Arts. 20(3), 21, 22(i) - CrPC Sections 163, 164 – Right of accused to be represented by lawyer and right against self–incrimination - Failure to provide legal aid to accused before recording confession (pre-trial stage) does not vitiate trial

It is improper to say that the right to be represented by a lawyer and the right against self-incrimination would remain incomplete and unsatisfied unless those rights are read out to the accused. The obligation to provide legal aid to the accused as soon as he is brought before the Magistrate is very much part of our criminal law procedure, aimed at protecting the accused against self-incrimination. But to say that any failure to provide legal aid to the accused at the beginning, or before his confession is recorded under Section 163, Cr.P.C, would inevitably render the trial illegal is stretching the point to unacceptable extremes. The object of the criminal law process is to find out the truth and not to shield the accused from the consequences of his wrong-doing. A defence lawyer has to conduct the trial on the basis of the materials lawfully collected in the course of investigation. The test to judge the constitutional and legal acceptability of a confession recorded under Section 164, Cr.P.C. is not whether the accused would have made the statement had he been sufficiently scared by the lawyer regarding the consequences of the confession. The true test is whether or not the confession is voluntary. If a doubt is created regarding the voluntariness of the confession, notwithstanding the safeguards stipulated in S. 164 it has to be trashed but if a confession is established as voluntary it must be taken into account, not only constitutionally and legally but also morally.

Every accused unrepresented by a lawyer has to be provided a lawyer at the commencement of the trial, engaged to represent him during the entire course of the trial. Even if the accused does not ask of a lawyer or he remains silent, it is the Constitutional duty of the Court to provide him with a lawyer before commencing the trial. Unless the accused voluntarily makes an informed decision and tells the Court, in clear and unambiguous words, that he does not want the assistance of any lawyer and would rather defend himself personally, the obligation to provide him with a lawyer at the commencement of the trial is absolute, and failure to do so would vitiate the trial and the resultant conviction and sentence, if any, given to the accused. But the failure to provide a lawyer to the accused at the pre-trial stage may not have the same consequence of vitiating the trial. It may have other consequences like making the delinquent magistrate liable to disciplinary proceedings, or giving the accused right to claim compensation against the State for failing to provide him legal aid. But it would not vitiate the trial unless it is shown that failure to provide legal assistance at the pre-trial. That would have to be judged on the facts of each case. (Mohammed Ajmal Mohammad Amir Kasab v. State of Maharashtra; AIR 2012 SC 3565(F)

Arts. 21, 226 and 311—Termination of services—Reinstatement—Consideration of

The respondent No. 3 was a Group-'D' staff under the respondent-bank in the Head Office. He was absent from his duty on and from July 26, 1998. On March 14, 1998, he left Calcutta. On April 3, 1998, the respondent No. 3 sent a communication to the respondent authority with regard to the intimation of his absence from the services and that communication was received by the respondent-bank on April 28, 1998. The respondent-bank issued a notice dated July 8, 1998 to the petitioner at the following address. "Karbalamore p.a. & Dist. Hooghly". Subsequently, a notice dated October 13, 1998 was issued by the petitioner-bank, to the respondent No. 3 under Clause-17 of the Fifth Bipartite Settlement. By an order dated November 16, 1995, the name of the petitioner was struck off from the roll of the petitioner-bank. The petitioner submitted a representation dated January 6, 1999 to the respondent authority for consideration of his absence from services due to his illness and that of his wife. Ultimately, an industrial dispute was raised in the matter and the same was referred to the Central Government Industrial Tribunal, Calcutta. The Tribunal passed the impugned order. Hence, this writ application.

According to Counsel for respondent/Bank, in view of the aforesaid admitted facts and circumstances of this case, there was no procedural impropriety in the- decision making process of the petitioner-bank. The impugned award was passed on a sympathetic ground, without support by any reasons. Therefore, the same was perverse and liable to be set aside.

According to the learned Counsel for appellant in case of unauthorized absence a disciplinary proceeding was required to be initiated against the petitioner before passing the impugned order but the same was not done. As a result, the action on the part of the petitioner-bank could not be sustained in law.

Bank is a model employer whose action to be tested and pass through the constitutional mandate of Article 14 & 21 of the Constitution of India. The workman has been deprived of livelihood without fair procedure in terms of Article 21 of Constitution of India despite his intimation about distress condition of family and his suffering from Jaundice, by sending a letter which was duly received by the Bank authority. As a model employer Bank authority ought to have resorted the steps of disciplinary' proceeding by sending charge memo of unauthorised absence, in the permanent address recorded in the Bank's register. In the instant case admittedly it has not been done, and accordingly, it has caused constitutional breach of Article 14 and 21 both.

Having regard to such situation and the findings above we have not found any merit to interfere with award passed by the learned Tribunal below about reinstatement in service s confirmed by the learned Trial Judge in the writ application moved by the appellant Bank unsuccessfully. (UCO Bank vs. Jaglal Ram; 2012 (2) SLR 540 (Cal.)

Art. 21—Right to life includes right to live with human dignity—Dignity even of accused in custody cannot be comatosed

When an accused is in custody, his Fundamental Rights are not abrogated in toto. His dignity cannot be allowed to be comatosed. The right to life is enshrined in Art. 21 of the Constitution and a fortiorari, it includes the right to live with human dignity and all that goes along with it. As such any treatment meted to an accused while he is in custody which causes humiliation and mental trauma corrodes the concept of human dignity. The majesty of law protects the dignity of a citizen in a society governed by law. It cannot be forgotten that the Welfare State is governed by rule of law which has paramountcy. It is thus the sacrosanct duty of the police authorities to remember that a citizen while in custody is not denuded of his fundamental right under Art. 21 of the Constitution. The restrictions imposed have the sanction of law by which his enjoyment of fundamental right is curtailed but his basic human rights are not crippled so that the police officers can treat him in an inhuman manner. On the contrary, they are under obligation to protect his human rights and prevent all forms of atrocities. (Dr. Mehmood Nayyar Azam vs. State of Chhattisgarh and Ors.; 2012 CrLJ 3934 (SC)

Art. 21 – Right to speedy trial - Delay in disposal of appeal against conviction cannot be ground to discharge accused

It was argued by the learned counsel for the appellant that considering the fact that though the appeal was filed before the High Court at Allahabad in the year 1981, the same was disposed of by the High Court-only on 13.01.2006, i.e., after a gap of 25 years and the sole appellant be discharged from the com-mission of offence on the ground of delay. We are unable to accept the said contention. This Court, in a series of decisions, held that the Limitation Act, 1963 does not apply to criminal proceedings unless there is express and specific provision to that effect. It is also settled law that a criminal offence IS considered as a wrong against the State and the Society even though it is committed against an individual. After considering various decisions including the decision of the Constitution Bench of this Court in Abdul Rehman Antulay v. R.S. Nayak, and Kartar Singh v. State of Punjab and a decision rendered by seven learned Judges of this Court in P. Ramachandra Rao v. State of Karnataka recently on 17.08.2012 a Bench of two Judges of this Court in Ranjan Dwivedi etc. v. C.B.I. rejected similar argument based on delay 'either at the stage of trial or thereafter.

In this case, merely because the High Court had taken nearly 25 years to dispose of the appeal, the present appellant cannot be exonerated on the ground of delay. (Shyam Babu v. State of U.P.; 2012 (6) ALJ 10)

Arts. 21, 22(i), 39 A – Right of accused to legal aid not to limited to stage of trial, but it is only for representing accused in court proceeding and not during police interrogation

The view that Article 22(1) merely allows an arrested person to consult a legal practitioner of his choice and the right to be defended by a legal practitioner crystallizes at the stage of commencement of the trial in terms of S. 304 of the Cr.P.C. is incorrect and is based on an unreasonably restricted construction of the Constitutional and statutory provisions; and it also overlooks the socio-economic realities of the country. Having regard to the progress law has made to serve the evolving needs of our people and particularly after the introduction of Art. 39A it is now rather late in the day to contend that Article 22(1) is merely an enabling provision and that the right to be defended by a legal practitioner comes into force only on the commencement of trial as provided under S. 304 of the Cr.P.C. He needs a lawyer at the stage of his first production before the Magistrate, to resist remand to police or jail custody and to apply for bail. He would need a lawyer when the charge-sheet is submitted and the Magistrate applies his mind to the charge-sheet with a view to determine the future course of proceedings. He would need a lawyer at the stage of framing of charges against him and he would, of course, need a lawyer to defend him in trial. It is therefore the duty and obligation of the Magistrate before whom a person accused of committing a cognizable offence is first produced to make him fully aware that it is his right to consult and be defended by a legal practitioner and, in case he has no means to engage a lawyer of his choice, that one would be provided to him from legal aid at the expenses of the State. The right flows from Articles 21 and 22 (1) of the Constitution and need to be strictly enforced. Supreme Court as such directed all the Magistrates in the country to faithfully discharge the aforesaid duty and obligation and further make it clear that any failure to fully discharge the duty would amount to dereliction in duty and would make the concerned Magistrate liable to departmental proceedings.

The right to consult and be defended by a legal practitioner however is not to be construed as sanctioning or permitting the presence of a lawyer during police interrogation. According to our system of law, the role of a lawyer is mainly focused on Court proceedings. The accused would need a lawyer to resist remand to police or judicial custody and for granting of bail; to clearly explain to him the legal consequences in case he intended to make a confessional statement in terms of Sec. 164, Cr.P.C.; to represent him when the Court examines the charge-sheet submitted by the police and decides upon the future course of proceedings and at the stage of the framing of charges; and beyond that, of course, for the trial. The right to access to a lawyer in India is not based on the Miranda Principles, as protection against self-incrimination, for which there are more than adequate safeguards in Indian laws. (Mohammad Amir Kasab v. State of Maharashtra; AIR 2012 SC 3565(F)

Arts. 21, 19(1)(a), 129, 215 - Civil PC (5 of 1908), S. 151 - Court proceedings - Prohibition to publication of - Can be placed temporarily by Courts in exercise of its inherent power which includes power to punish for contempt’s

All Courts which have inherent powers, i.e. the Supreme Court, the High Courts and Civil Courts can issue prior restraint orders or proceedings, prohibitory orders in exceptional circumstances temporarily prohibiting publications of Court proceedings to be made in the media and that such powers do not violate Article 19(1)(a). One of the Heads on which Article 19(1) (a) rights can be restricted is in relation to contempt of Court under Article 19(2). Article 129/Article 215 is in two parts. The first part declares that the Supreme Court or the High Court shall be a Court of Record and shall have all the powers of such a Court. The second part says includes the powers to punish for contempt. These Articles save the pre-existing powers of the Courts as Courts of record and that the power includes the power to punish for contempt. As such a declaration has been made in the Constitution that the said powers cannot be taken away by any law made by the Parliament except to the limited extent mentioned in Article 142(2) in the matter of investigation or punishment of any contempt of itself. Reading Article 19(2) which refers to law in relation to contempt of Court with the first part of Article 129 and Article 215, it becomes clear that the power is conferred on the High Court and the Supreme Court to see that the administration of justice is not perverted, prejudiced, obstructed or interfered with. To see that the administration of justice is not prejudiced or perverted clearly includes power of the Supreme Court to prohibit temporarily, statements being made in the media which would prejudice or obstruct or interfere with the administration of justice in a given case pending in the Supreme Court or the High Court or even in the subordinate Courts. Such statements which could be prohibited temporarily would include statements in the media which would prejudice the right to a fair trial of a suspect or accused under Article 21. The object of the contempt law is not only to punish, it includes the power of the Courts to prevent such acts which interfere, impede or pervert administration of justice. Presumption of innocence is held to be a human right. If in a given case the appropriate Court finds infringement of such presumption by excessive prejudicial publicity by the newspapers (in general), then under inherent powers, the Courts of Record suo motu or on being approached or on report being filed before it by subordinate Court can under its inherent power under Article 129 or Article 215 pass orders of postponement of publication for a limited period if the applicant is able to demonstrate substantial risk of prejudice to the pending trial and provided he is able to displace the presumption of Open Justice and to that extent the burden will be on the applicant who seeks such postponement of offending publication. (Sahara India Real Estate Corpn. Ltd. and Ors. v. Securities and exchange Board of India and Anr.; AIR 2012 SC 3829)

Arts. 22, 19 and 21—Preventive detention—Permissible ground for

The Constitution recognizes preventive detention though it takes away the liberty of a person without any enquiry or trial. Preventive detention results in negation of personal liberty of an individual; it deprives an individual freedom and is not seen as compatible with the rule of law, yet the Framers of the Constitution placed the same in Part III of the Constitution. The Court has time and again given the expression “personal liberty” its full significance and asserted how valuable, cherished, sacrosanct and important the right of liberty given to an individual in the Constitution was and yet legislative power to enact preventive detention laws has been upheld in the larger interest of the State security. (Dropti Devi vs. Union of India; (2012) 2 SCC (Cri) 387)

Arts. 32, 226 and 136—Investigation—Transfer of, to CBI in case already such judice in criminal courts—When proper and valid

The court is vested with very wide powers in order to equip it adequately to be able to do complete justice. Where the investigating agency has submitted the charge-sheet before the court of competent jurisdiction, but it has failed to bring all the culprits to book, the court is empowered u/s. 319 CrPC to proceed against other persons who are not arrayed as accused in the charge-sheet itself. The court can summon such suspected persons and try them as accused in the case, provided the court is satisfied of involvement of such persons in commission of the crime from the record and evidence before it.

The court noticed that the investigation of a case or filing of charge-sheet in a case does not by itself bring the absolute end to exercise of power by the investigating agency or by the court. Sometimes and particularly in the matters of the present kind, the investigating agency has to keep its options open to continue with the investigation, as certain other relevant facts, incriminating materials and even persons, other than the persons stated in the FIR as accused, might be involved in the commission of crime.

CEC is not vested with any investigative powers under the orders of this Court, or under the relevant notifications, in the manner as understood under CrPC. CEC is not conducting a regular inquiry or investigation with the object of filing charge-sheet as contemplated u/s. 173 CrPC.

CEC is not discharging quasi-judicial or even administrative functions, with a view to determine any rights of the parties. It was not expected of CEC to give notice to the companies involved in such illegalities or irregularities, as it was not determining any of their rights. It was simpliciter reporting matters to the Court as per the ground realities primarily with regard to environment and illegal mining for appropriate directions. It had made different recommendations with regard to prevention and prosecution of environmentally harmful and illegal activities carried on in collusion with government officers or otherwise.

Contention (c) is advanced on the premise that all matters stated by CEC are sub-judice before one or the other competent court or investigating agency and thus, this Court has no jurisdiction to direct investigation by CBI. In any case, it is argued that such directions would cause them serious prejudice. This argument is misplaced in law and is misconceived on facts. Firstly, all the facts that had been brought on record by CEC are not directly sub judice in their entirety, before a competent forum or investigating agency. (Samaj Parivartan samudaya vs. State of Karnataka; (2012)3 SCC (Cri) 365)

Art. 136 – Exercise of powers under – Interference in criminal matters – Permissibility of

The powers of the Court under Article 136 of the Constitution are very wide, but it would not interfere with the concurrent findings of fact, save in exceptional circumstances. It would interfere in the findings recorded by the trial court as well as the High Court if it is found that the High Court has acted perversely and/or disregarded any vital piece of evidence which would shake the very foundation of the prosecution case. In other words, the Court would exercise the powers under Article 136 where the conclusion of the High Court is manifestly perverse and unsupportable on the evidence on record. (Narayan Manikrao Salgar v. State of Maharashtra; (2012) 8 SCC 622)

Arts. 141, 245 & 309 – Statute Law vis-a-vis judicial decision – Primacy of statute law

On being selected by the District Level Committee which had considered the candidature of those sponsored by the employment exchanges, the respondents were appointed as teachers purely on ad hoc basis between 1994 and 1996 by the District Education Officers. In furtherance of the policy decision taken by the State Government, the services of the respondents were regularised w.e.f. 1.10.2003. The respondents challenged the provisional gradation list by filing a writ petition on the ground that the same was discriminatory and prayed that their seniority be fixed by taking into consideration their total length of service including the ad hoc service. The High Court by the impugned judgment held that the seniority of the respondents should be fixed by taking into account their ad hoc service. Hence, the instant appeal.

The court considers it proper to notice the judgments on which reliance has been placed by the learned counsel for the respondents. This consideration needs to be prefaced with an observation that the cases in which recruitment and conditions of service including seniority are regulated by the law enacted by Parliament or the State Legislature or the Rules framed under Article 309 of the Constitution, the general proposition laid down in any judgment cannot be applied dehors the relevant statutory provisions and dispute relating to seniority has to be resolved keeping in view such provisions. (State of Haryana and others v. Vijay Singh and others; (2012) 8 SCC 633)

Art. 226 - Scope of

The Writ Court exercising jurisdiction under Article 226 of the Constitution is fully empowered to interdict the State or its instrumentalities from embarking upon a course of action to detriment of the rights of the citizens, though, in the exercise of jurisdiction in the domain of public law such a restraint order may not be issued against a private individual. This, of course, is not due to any inherent lack of jurisdiction but on the basis that the public law remedy should not be readily extended to settlement of private disputes between individuals. Even where such an order is sought against a public body the Writ Court may refuse to interfere, if in the process of determination disputed questions of fact or title would require to be adjudicated. There is no universal rule or principle of law which debars the Writ Court from entertaining adjudications involving disputed questions of fact. In fact, in the realm of legal theory, no question or issue would be beyond the adjudicatory jurisdiction under Article 226, even if such adjudication would require taking of oral evidence. However, as a matter of prudence, the High Court under Article 226 of the Constitution, normally would not entertain a dispute which would require it to adjudicate contested questions and conflicting claims of the parties to determine the correct facts for due application of the law. (M/s. Real Estate Agencies vs. Govt. of Goa & Ors.; 2012(6) Supreme 598)

Arts. 226 and 227 – Code of Civil Procedure 1908, Order 41 Rule 33 disqualification petitions – Delay in disqualification proceedings

Interim Order passed by High Court under Order 41 Rule 33 CPC while disposing of Letters Patent Appeals preventing five named MLAs, from effectively discharging their functions as Members of the Vidhan Sabha - Whether such jurisdiction could at all have been invoked by High Court when no final order had been passed by Speaker on the disqualification petitions - Since the decision of Speaker on a petition under paragraph 4 of Tenth Schedule concerns only a question of merger on which the Speaker is not entitled to adjudicate, High Court could not have assumed jurisdiction under its powers of review before a decisions was taken by the Speaker under paragraph 6 of Tenth Schedule to the Constitution- Restraining the Speaker from taking any decision under paragraph 6 of Tenth Schedule was, beyond the jurisdiction of High Court- Supreme Court opined that High Court had no jurisdiction to pass such an order, which was in the domain of Speaker- High Court Assumed the jurisdiction which it never had in making the interim order which had the effect of preventing the five MLAs in question from effectively functioning as Members of the Haryana Vidhan Sabha - Hence, Direction given by High Court upheld only to the extent it directed Speaker to decide petitions for disqualification of five MLAs within a period of four months - Remaining portion of the order disqualifying five MLAs from effectively functioning as Members of Haryana Vidhan Sabha set aside. (Speaker, Haryana Vidhan Sabha v. Kuldeep Bishnoi & Ors.; 2012 (7) Supreme 179)

Art. 226 – Relief granted to the parties who moved the court immediately after the cause arose cannot be taken advantage of by those who waited and came to court belatedly

The relief obtained by some persons, by approaching the Court immediately after the cause of action has arisen, cannot be the basis for other persons who have belatedly filed their petition, to take the benefit of earlier relief provided, for the reason that, such persons cannot be permitted to take impetus of an order passed by the court, at the behest of another more diligent person. (V. Chandrasekaran & Anr. Vs. Administrative Officer & Ors.; 2012(6) Supreme 612)

Art. 226—Principles of natural justice—Applicability

The question of application of principles of natural justice, suffice is to mention that once it is admitted that the very election of petitioner was not in accordance with Statute and facts in this regard are virtually admitted and only one conclusion is possible, under Article 226 this Court is not obliged to interfere with an order which has resulted in substantive justice merely on the ground of some defect in the matter of procedure i.e. denial of opportunity of hearing since observance of principles of natural justice is not an empty formality. Where only one conclusion is possible, this Court can decline to interfere in exercise of power under Article 226 of the Constitution. (Smt. Bhajno Devi vs. State of U.P.; 2012 (5) ALJ 583)

Art. 226 - Scope and ambit - Explanation of

This power involves a duty on the High Court to keep the inferior courts and tribunals within the bounds of their authority and to see that they do what their duty requires and that they do it in a legal manner. But this power does not vest the High Court with any unlimited prerogative to correct all species of hardship or wrong decisions made within the limits of the jurisdiction of the Court or Tribunal. It must be restricted to cases of grave dereliction of duty and flagrant abuse of fundamental principle of law or justice, where grave injustice would be done unless the High Court interferes. (Sita Ram Bijpuriya vs. State of UP; 2012(3) ARC 746 (All HC)

Art. 311(2)—Protection U/Art. 311(2)—Not available to personnel of Border Security Force, it is meant for ‘civil post’ under Union or State

There is no gainsaying the fact that Article 311 of the Constitution provides for guarantees with regard to dismissal, removal or reduction in rank of persons employed in civil capacities under the Union of State. Article has obvious reference to civil service. Under Entry 2 of List 1 of the Seventh Schedule to the Constitution, the Parliament has been given the power to make laws with regard to the naval, military and air force as also to any other armed forces of the Union. In other words, besides the regular naval, military and armed forces, the Parliament can authorize the raising of any other kind of armed forces of the Union. Deriving power from that source in the Constitution of India, the Parliament had enacted the Border Security Force Act, 1968 which provides for the Constitution and regulation of an armed force of the Union for ensuring the security of the borders of India and for matters connected therewith. Under Section 3 of the Act, all officers, subordinate officers, under-officers and other officers enrolled under the Act are put as subject to the Act, wherever they may be, and all those persons are required to remain so subject until retired, discharged, released, removed from the force in accordance with the provisions of this Act and the Rules. Section 4 provides for the constitution of the force and section 6 provides for the enrollment to the force. Section 6(2) provides that notwithstanding anything contained in the Act and the Rules, every person who has for a continuous period of three months been in receipt of pay as a person enrolled under the Act and borne on the rolls of the Force shall be deemed to have been duly enrolled. Thus a complete enclosure is provided to preserve the force’s sensitivity and integrity. There is no escape from the conclusion that officers, subordinate officers, under-officers and other persons enrolled under the Act remain subject to the Act so long as they remain in service. The petitioner of either case being a Sub-Inspector was concededly a subordinate officer under rule 14(1)(b) of the B.S.F. Rules, 1969 framed under the Act. There is also no manner of doubt that the B.S.F. being part of the Armed Forces of the Union and hence part of the defence services of the Union and this distinction takes the defence service out of the ambit of Article 311 of the Constitution. And if that is so, neither of the petitioner is entitled to invoke even principles of natural justice under the general law of master and servant.

Accordingly, question No.2 is answered in favour of the appellant and it is held that the protection under Article 311(2) of the Constitution is not available to personnel of the Border Security Force, as he does not hold a “Civil Post” under the Union or a State. (Union of India vs. Indrajit Tewari; 2012 (5) ALJ 586)

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Consumer Protection Act

Ss. 15, 17, 19 & 21—Pecuniary jurisdiction—Complaint cannot be dismissed on ground of lack of pecuniary jurisdiction

In Court’s view, both the Fora below have gravely erred in the exercise of their jurisdiction. We say so because once the District Forum having regard the valuation of the claim had come to the conclusion that the valuation of the claim exceeded the pecuniary jurisdiction of the District Forum, the ideal/proper course for the District Forum was to return the complaint to the complainant for presentation it before the Fora having the requisite pecuniary jurisdiction. Instead of doing so, the District Forum dismissed the complaint due to lack of pecuniary jurisdiction without affording any opportunity to the petitioner to pursue his remedy before the competent forum. The State Commission also did not correct the said error of jurisdiction. Despite a prayer having been made to the State Commission, it declined to entertain the complaint in its original jurisdiction on a parity of reason which is not easy to understand, least to approve. The approach adopted by the Fora below has resulted into miscarriage of justice as the complainant has been left high and try, and has been relegated to approach the civil Court for redressal of his grievance. We do not understand why a complainant, who is a consumer within the meaning of Consumer Protection Act, 1986 and had raised a consumer dispute should be relegated to the Civil Court. In Court’s view the orders passed by the Fora below are legally unsustainable and is accordingly set aside. (Meenu Aggarwal vs. JMD Promoters Ltd.; 2012(2) CPR 439 (NC)

Ss. 15 and 17—Indian Telegraph Act, Sec. 78—Whether complaint of telephone dispute is maintainable before consumer forum—Held, “No”

We have noticed that in [2009 CTJ 1062 (Supreme Court) (CP)], where Their Lordships have held ‘Consumer Forums have no jurisdiction to entertain complaints relatable to telecom disputes’. As per the judgment passed by the Hon’ble National Commission, 2011 CTJ 551 (CP) (NCDRC), where Their Lordships have held any dispute between a telephone/mobile phone subscriber and the telegraph authority can be resolved only by taking recourse to arbitration proceedings. This judgment was passed by the Hon’ble National Commission relying on the judgment of the Hon’ble Supreme Court in General Manager, Telecom vs. M. Krishnan and another. In view of the said judgments passed by the Hon’ble supreme Court as well as Hon’ble National Commission Court has bound to rely on the said judgments and in the instant case also we are the opinion that the instant dispute can be resolved by taking recourse to arbitration proceedings only. The Ld. Counsel for the Appellant has also relied on the judgment passed by the Hon’ble National Commission, reported in Vol. 1(1991) CPJ 14, wherein Their Lordships have held that the Forum or Commission is empowered to award compensation for any injury or loss suffered by consumer on account of the negligence of the OP the claim must be substantiated by sufficient evidence and the compensation has to be assessed not arbitrarily but on the basis of well accepted legal principles. As in the instant case the complaint is not maintainable before the Consumer Forum in view of the abovementioned judgments we are not inclined to discuss this point in the present case. (Tata Tele Services Ltd. vs. Smt. Priya Prasad; 2012 (2) CPR 202)

Ss. 15 and 17—Power theft—Consumer Forum should not interfere where matter is pending before criminal Court

In this case, Learned District Forum, after having considered the material placed before it by both parties, came to the conclusion that there was no tampering with the supply meter and there was no theft of electricity. On this finding, the Electricity Supply Company was directed to refund the amount collected by it from the respondent/complainant along with interest and compensation for mental agony & cost of litigation.

Before State Commission, the appellants have filed certified copies of the criminal complaint filed by appellant against respondent/complainant and order sheets recorded in the Criminal case by the Sessions Judge, Durg. These documents, prima facie show that allegation was made by the appellants against respondent regarding commission of offence of theft of electricity and such matter is pending before a competent Criminal Court. It is true that criminal complaint before competent Court has been filed after passing of the impugned order and therefore, it may be seen by the District Forum, as to whether filing of such complaint after passing of such order, has some effect on the finding by which respondent/complainant, has been exonerated from charge of theft of electricity.

After having heard the arguments advanced by both parties, we find that Electricity Supply Company, has taken this ground in the written version from the beginning that the respondent/complainant, was guilty of commission of offence of theft of electricity and if bill was issued for a higher amount, then it does not come in the category of deficiency of service. This question has been considered by the District Forum, in the impugned order, but, now as criminal case has been instituted against the respondent/complainant before a competent court for deciding as to whether the respondent/complainant has committed the offence of theft of electricity or not, therefore, it appears reasonable to set aside the impugned order and to remit the matter back to District Forum, for considering the matter afresh in the light of criminal complaint filed by the appellants against respondent/complainant and considering the fact that criminal complaint is pending against respondent/complainant on the same set of facts for trial of the charge of theft of electricity. (C.G. State Power Distribution Co. Ltd. Dagniya, Raipur through its Managing Director vs. Smt. Preetpal Kaur; 2012 (2) CPR 98)

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Contempt of Courts Act

Ss. 2 (a), 12 - Constitution of India, Article 16 (4A) – Willful Disobedience of Court order – Reservation in promotion - Essential ingredients of

In order to establish that a person had deliberately an willfully committed contempt of Court, two essential ingredients have to be proved. Firstly, it has to be established that an order has been passed by the court which either directs certain things to be done by a person or to restrain such person or persons from doing certain acts and that the person or persons had knowledge of the said order. Secondly, it has to be established that despite having knowledge of such order, the person concerned deliberately and willfully violated the same with the intention of lowering the dignity and image of the Court. (Salauddin Ahmed v. Samta Andolan; AIR 2012 SC 3891)

Contempt of Court - Role of court - The courts are expected to take some what stringent view to prevent further institutional damage and to protect the faith of the public in the justice delivery system

The apology tendered even at the outset of proceedings has to be bona fide, should demonstrate repentance and sincere regret on the part of the contemner lest the administration of justice is permitted to be crudely hampered with immunity by the persons involved in the process of litigation or otherwise. An apology which lacks bona fides and is intended to truncate the process of law with the ulterior motive of escaping the likely consequences of such flagrant violation of the orders of the Court and disrespect to the administration of justice cannot be accepted.

The rule of law has to be maintained whatever be the consequences. The ‘welfare of people’ is the supreme law and this enunciates adequately the ideal of ‘law’. This could only be achieved when justice is administered lawfully, judiciously, without any fear and without being hampered or throttled by unscrupulous elements. The administration of justice is dependent upon obedience or execution of the orders of the Court. The contemptuous act which interfered with administration of justice on one hand and impinge upon the dignity of institution of justice on the other, bringing down its respect in the eye of the commoner, are acts which may not fall in the category of cases where the court can accept the apology of the contemner even if it is tendered at the thresholds of the proceedings.

It is a settled principle of law that contempt is a matter primarily between the Court and the contemner. The Court has to take into consideration the behavior of the contemner, attendant circumstances and its impact upon the justice delivery system as well lowers the dignity of the Courts, then the Courts are expected to take somewhat stringent view to prevent further intuitional damage and to protect the faith of the public in the justice deliver system. (Lalyaneshwari vs. Union of India; AISLJ 2012(3) 476)

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Criminal Procedure Code

Ss. 24 and 25 – Public prosecutor – Duties of

The parameters governing the process of investigation of a criminal charge, the duties of the investigating agency and the role of the courts after the process of investigation is over and a report thereof is submitted to the court, are exhaustively laid down in the different chapters of Cr.P.C. Though the power of the investigating agency is large and expansive and the courts have a minimum role in this regard, there are inbuilt provisions in Cr.P.C. to ensure that investigation of a criminal offence is conducted keeping in mind the rights of an accused to a fair process of investigation. The mandatory duty cast on the investigating agency to maintain a case diary of every investigation on a day-to-day basis and the power of the court under Section 172(2) Cr.P.C. and the plenary power conferred in the High Court by Article 226 of the Constitution are adequate safeguards to ensure the conduct of a fair investigation.

Though the primary duty of a Public Prosecutor is to ensure that an accused is punished, his duties extend to ensuring fairness in the proceedings and also to ensure that all relevant facts and circumstances are brought to the notice of the court for a just determination of the truth so that due justice prevails. The courts must ensure fairness of the investigative process so as to maintain the citizens’ rights under Articles 19 and 21 of the Constitution and play an active role in the trial. It is the responsibility of the investigating agency as well as that of the courts to ensure that every investigation is fair and does not erode the freedom of an individual except in accordance with law. One of the established facets of a just, fair and transparent investigation is the right of an accused to ask for all such documents that he may be entitled to under the scheme contemplated by Cr.P.C. (V.K. Sasikala v. State; (2012) 9 SCC 771)

S. 57 – Requirement for production of arrested person before competent court within 24 hours which excludes the journey time

It has not been disputed before Court during the course of hearing, that the travel time between Bhubaneshwar and Banapur is about three hours. Accordingly, after having detained the appellant at Bhunbaneswar, she was produced before the Court of the Judicial Magistrate, First Class, Banapur at 7.00 p.m. on 16.1.2010. If the travel time is taken into consideration, it is apparent that it would be unjust for the appellant to contend, that she was produced before the court concerned well after 24 hours of her arrest. It may be noted that her contention would have been of substance, if she could have established that she was arrested at 3.00 a.m. on 15.1.2010. The Court have, however, accepted the determination rendered by the High Court, that the appellant was arrested at 3.00 p.m. on 15.1.2010. It is not disputed, that the appellant was produced before the Judicial Magistrate, First Class, Banapur at 7.00 p.m. on 16.1.2010. Taking into consideration the travel time, it cannot be stated that she remained in detention well beyond 24 hours from her arrest i.e. till her production before the Judicial Magistrate, First Class, Banapur.

The Court are also satisfied in affirming the reasons recorded by the High Court that the detention of the appellant did not substantially exceed 24 hours i.e. after her arrest and before her production before the Judicial Magistrate, First Class. (Subhashree Das v. State of Orissa and others; (2012) 9 SCC 729)

S. 127—Maintenance—Enhancement

The petitioner filed an application under Section 127 Cr.P.C. on 19.3.2010 seeking enhancement of the monthly maintenance. The learned Judge, Family Court, Dwarka vide the impugned order, after considering the income of the parties and the material available on record, doubled the amount of maintenance i.e. from Rs. 1,000/- to Rs. 2,000/- per month, which is now being considered a very meager amount by the petitioner for her survival. Hence inherent powers of this Court have been invoked to get the enhancement of the maintenance from Rs. 1,000/- to Rs. 10,000/- per month.

The enhancement has been sought primarily on the ground that she is entitled to have 1/3^rd salary of the respondent as maintenance to have same kind of living standard.

Since neither the relationship is in dispute nor the respondent disowns his responsibility to pay the maintenance awarded to the petitioner, the real issue is the quantum of maintenance. Undisputedly, for 11 years the petitioner never considered herself to be destitute in need of any maintenance from the respondent who was serving in Delhi Police even at that time. The income of the parties is also not in dispute for the reason that the petitioner is working in Anganwadi Centre and as per the certificate dated 1.3.2012 placed on record by her, she is receiving Rs. 4,000/- per month as honorarium. During the proceedings before the concerned Family Court, the salary slip of the respondent was proved through PW-2 ASI Ratan Singh which shows the gross salary of the respondent Rs. 28, 664/- per month. It is the case of the respondent that apart from maintaining himself, responsibility to take care of his aged father and younger brother is also on his shoulder. On the other hand, the petitioner has no responsibility on her shoulders. Apart from deductions towards Income Tax and on other counts, he is also contributing towards GPF and responsibility to fulfill social obligations is also on his shoulder because of inability of his father to fulfill the same and younger brother being not suitably employed.

The respondent is attending his duty in Delhi from his village either as daily passenger or must be staying in barrack in exigency to perform his duty to be discharged by him. It is not the case of petitioner that respondent is having luxuries of life of which she has been deprived.

The petitioner, apart from the honorarium being received by her, has been awarded Rs. 2,000/- per month towards maintenance which cannot be termed as too low so as to put the petitioner on the verge of vagrancy and destitution. (Kamla Devi vs. Rajmal Singh; 2012 CrLJ 506 (Del)

S. 154 – F.I.R. – Appreciation of – F.I.R. is not a substantive peace of evidence, it can be used for corroboration or for contradiction

It is also a settled principle of law that the first information report is not a substantive piece of evidence and it cannot be placed on pedestal higher than the statement on oath. The first information report could be used in criminal case for Corroboration or for contradiction. It is lodged before an officer, who is in-charge of the police station to set the law in motion with regard to an incident, which takes place within his jurisdiction and nothing beyond that. (Maya Azhagar and another vs. Thangiah and another; 2012 ACJ 2529)

Sec. 154—FIR—Generally—What amounts to and requirements of FIR—cryptic information/messages not to be treated as FIR

The question that court has to decide is whether the wireless message sent soon after the incident on 5-12-1994 is the real FIR as contended on behalf of the defence or whether the typed report subsequently lodged by PW 14 in Muzaffarnagar Sadar Police Station is the FIR as contended on behalf of the prosecution.

In the present case, PW 14, the informant has chosen not to treat the wireless message but the subsequent typed information as the FIR and the police has also not treated the wireless message but the subsequent typed information as the FIR. Moreover, the wireless message sent soon after the incident on 5-12-1994 stated only that the people mixed with the crowd of funeral procession for the cremation of Chottan Shukla have injured the deceased by shooting him with revolver and have fled towards Hajipur by different vehicles. This wireless message was cryptic and did not sufficiently disclose the nature of the offence committed much less the identity of the persons who committed the offence. Unless and until more information was collected on how exactly the deceased was killed, it was not mandatory for either PW 14 to lodge the same as FIR or for the officer in charge of a police station to treat the same as FIR. Such cryptic information has been held by this Court not to be FIR in some cases.

In Sk. Ishaque vs. State of Bihar, (1995) 3 SCC 392, Gulabi Paswan gave a cryptic information at the police station to the effect that there was a commotion at the village as firing and brickbatting was going on and this Court held that this cryptic information did not even disclose the commission of a cognizable offence nor did it disclose who were the assailants and such a cryptic statement of Gulabi Paswan cannot be treated to be an FIR within the meaning of Sec. 154 CrPC.

In court’s opinion, the trial court and the High Court rightly treated the subsequent typed written information lodged by PW 14 and not the wireless message as the FIR. (Anand Mohan vs. State of Bihar; (2012) 3 SCC (Cri) 328)

S. 154—FIR—Discrepancies in FIR—Ante-timed FIR—Effect of

A draft FIR was, according to the learned counsel, prepared by PW 65, the investigating officer which PW 1 is said to have signed without even reading the same. This implied that the version given in the FIR was not that of the witness, but of the person who had drafted the same. It was further contended that although the FIR was recorded at 1.30 a.m., the body of the deceased was recovered only at about 5.40 a.m. In the intervening period it was not known whether deceased was alive or dead. The FIR purportedly registered at about 1.30 a.m. all the same alleged the commission of an offence u/s. 302 IPC. This, according to Mr. Singh, indicated that the FIR was actually registered much after the recovery of the body.

Court did not see any palpable error in the approach adopted by the High Court in appreciating the evidence adduced by the prosecution. The deposition of PWs 1 and 2 regarding the presence of the appellant at the place of occurrence, his getting into a scuffle with the deceased in an attempt to recover the dinghy and the assault on the deceased, who was then pushed into the sea is, in our opinion, satisfactorily proved. The discrepancies indicated by Mr. Jaspal Singh in the recording of the FIR, or the offence under which it was registered are not of much significance and do not, in our view, effect the substratum of the prosecution case. (Abdul Nawaz vs. State of W.B.; (2012) 3 SCC (Cri) 280)

S. 154 – FIR – All details as spoken by PWs 1, 2, 3 were not mentioned in FIR – Effect of – It is just an intimation of occurrence of an incident and need not contain all facts related to said incident

Though it is stated that all the details as spoken to by PWs 1, 2 and 3 were not mentioned in the FIR, as rightly observed by the trial court, FIR is not an encyclopaedia. It is just an intimation of the occurrence of an incident and it need not contain all the facts related to the said incident. (State of U.P. v. Munesh; (2012) 9 SCC 742)

S. 154 – FIR – Failure to mention name of one accused - Not by itself sufficient to give benefit of doubt to accused when prosecution has established its case

The Court said that all the three eye-witnesses to altercation and strangulation named some of the accused persons while did not name others specifically. However, they identified all the accused persons in the Court as the persons who were present at the time of the mischief, altercation and strangulation of the deceased. This Court in the case of Tika Ram v. State of Madhya Pradesh [(2007) 15 SCC 760], while rejecting the argument that the name of the accused is not mentioned in the FIR held that this would not by itself be sufficient to reject the prosecution case as against this accused. The court further held that where the prosecution is able to establish its case, such omission by itself would not be sufficient to give benefit of doubt to the accused. In the present case, as already discussed, the prosecution has been able to establish its case beyond reasonable doubt. (Shyamal Ghosh. v. State of West Bengal; AIR 2012 SC 3539)

S. 155—Investigation—Methodology—Stated

The Investigating Officer, as well as the doctor who are dealing with the investigation of a criminal case, are obliged to act in accordance with the police manual and the known canons of medical practice, respectively. They are both obliged to the diligent, truthful and fair in their approach and investigation. A default or breach of duty, intentionally or otherwise, can sometimes prove fatal to the case of the prosecution. An Investigating Officer is completely responsible and answerable for the manner and methodology adopted in completing his investigation. Where the default and omission is so flagrant that it speaks volumes of a deliberate act or such irresponsible attitude of investigation, no court can afford to overlook it, whether it did or did not cause prejudice to the case of the prosecution. It is possible that despite such default/omission, the prosecution may still prove its case beyond reasonable doubt and the court can so return its finding. But, at the same time, the default and omission would have a reasonable chance of defeating the case of the prosecution in some events and the guilty could go scot-free. We may illustrate such kind of investigation with an example where a huge recovery of opium or poppy husk is made from a vehicle and the Investigating Officer does not even investigate or make an attempt to find out as to who is the registered owner of the vehicle and whether such owner was involved in the commission of the crime or not. Instead, he merely apprehends a cleaner and projects him as the principal offender without even reference to the registered owner. Apparently, it would prima facie be difficult to believe that a cleaner of a truck would have the capacity to buy and be the owner, in possession of such a huge quantity, i.e., hundreds of bags, of poppy husk. The investigation projects the poor cleaner as the principal offender in the case without even reference to the registered owner. (Dayal Singh vs. State of Uttaranchal; 2012 Cr.L.J. 4323 (SC)

Ss. 161, 164 - Constitution of India, Art. 20 (3) - Protection against self-incrimination - Strongly provided by provisions of Code - Need to draw upon provisions of principles set down by U.S. Supreme Court in Miranda Case (384 US 436 (1966) does arise

A bare reference to the provisions of the Cr. P. C. would show that those provisions are designed to afford complete protection to the accused against self-incrimination. Section 161 (2) of the Cr. P. C. disallows incriminating answers to police interrogations. Section 162 (1) makes any statements, in any form, made to police officers inadmissible excepting those that may lead to discovery of any fact (vide Section 27 of the Evidence Act) and that may constitute a dying declaration (vide Section 32 of the Evidence Act). Coupled with these provisions of the Cr. P. C. is Section 25 of the Evidence Act that makes any confession by an accused made to a police officer completely inadmissible. Section 163 of the Cr. P. C. prohibits the use of any inducement, threat or promise by a police officer. And then comes Section 164, Cr. P. C., dealing with the recording of confessions and statements made before a Magistrate. Sub-section (1) of Section 164 provides for recording any confession or statement in the course of an investigation, or at any time before the commencement of the inquiry or trial; sub-section (2) mandates the Magistrate to administer the pre-confession caution to the accused and also requires him to be satisfied, as a judicial authority, about the confession being made voluntarily; sub-section (3) provides one of the most important protections to the accused by stipulating that. in case the accused produced before the Magistrate declines to make the confession, the magistrate shall not authorize his detention in police custody; sub-section (4) incorporates the post-confession safeguard and requires the Magistrate to make a memorandum at the foot of the confession regarding the caution administered to the accused and a certificate to the effect that the confession as recorded is a full and true account of the statement made. Section 164 of the Cr. P. C. is to be read along with Section 26 of the Evidence Act, which provides that no confession made by any person whilst he is in the custody of a police officer, unless it be made in the immediate presence of a Magistrate, shall be proved as against such person. It is thus clear that the protection to the accused against any self-incrimination guaranteed by the Constitution is very strongly built into the Indian statutory framework and there is absolutely no reason to draw any help from the Miranda principles for providing protection against self-incrimination to the accused.

The provisions of the Cr. P. C. and the Evidence Act fully incorporate the Constitutional guarantees, and that the statutory framework for the criminal process in India affords the fullest protection to personal liberty and dignity of an individual. No flaws lie in the provisions in the statutes books, but the devil lurks in the faithful application and enforcement of those provisions. It is common knowledge that there is a great hiatus between what the law stipulates and the realities on the ground in the enforcement of the law. The abuses of the provisions of the Cr. P. C. are perhaps the most subversive of the right to life and personal liberty, the most precious right under the Constitution, and the human rights of an individual. Access to a lawyer is, therefore, imperative to ensure compliance with statutory provisions, which are of high standards in themselves and which, if duly complied with, will leave no room for any violation of Constitutional provisions or human rights abuses. (Mohammed Ajmal Mohammad Amir Kasab v. State of Maharashtra; AIR 2012 SC 3565)

S. 173(5) – Nature of

Section 173(5) –Applications filed by appellant for certified copies or in the alternative for inspection of certain unmarked and unexhibited documents in a trial pending against her- Rejection of –Challenge there against- Two Orders passed by High Court upholding rejection of said applications- Appeals- No dispute that appellant arrayed as second accused and Smt. J. Jayalalitha, then Chief Minister of the State was arrayed as first accused in the case for commission of offences under Section 120B of IPC and Section 13(2) read with Section 13(1) (e) of P of C Act, 1988- Though prosecution tried to cast some cloud on issue as to whether unmarked and unexhibited documents were a part of the report under Section 173 Cr.P.C., no denial by prosecution that said unmarked and unexhibited documents were presently in the custody of Court- Besides, accused in her application had furnished specific details of said documents –Hence a perception of possible prejudice to appellant, if the documents or at least an inspection thereof was denied, loomed large-Directions issued allowing an inspection of unmarked and unexhibited documents by appellant to balance the need to bring prosecution in the instant case to its earliest conclusion and at the same time to protect and preserve the right of the accused to a fair trial- appeals disposed of. Said provision makes it incumbent on Investigating agency to forward/transmit to concerned court all documents/statement etc. on which prosecution proposes to rely in the course of the trial –Section 173(5), however, is subject to provisions of Section 173(6) which confers a power on the investigating officer to request the concerned court to exclude any part of statement or documents forwarded under Section 173(5) from copies to be granted to accused. (V.K. Sasikala. V. State Rep. by Superintendent of Police; 2012(7) Supreme 146)

Ss. 190, 473—IPC, S. 406—Cognizance of offence—Bar of limitation—Effect

In the instant case, learned counsel for the parties and have gone through the record. The submission of the learned counsel for the applicant that the cognizance taken by the Court below is without jurisdiction as maximum punishment for offence under S. 406, IPC is three years or fine or both whereas the cognizance has been taken after the lapse of three years from the date of offence alleged in the complaint is not acceptable. The complaint cannot be said to be barred by limitation as Section 473, Cr.P.C. provides extension of period of limitation in certain cases and reads as under “Notwithstanding anything contained in the foregoing provisions of this Chapter, any Court may make cognizance of an offence after the expiry of period of limitations, if it is satisfied on the facts and in the circumstances of the case that the delay has been properly explained or that it is necessary so to do in the interests of justice”. Under the present case facts and circumstances of the case the Court below satisfied itself from the perusal of the complainant and witnesses to take cognizance in the interest of justice. The complaint could not be thrown out at threshold merely on the ground of limitation. So far as the question that the property given at or about the time of marriage is “joint property” therefore, no offence is made out punishable under S. 406, I.P.C. is not acceptable. (Rakesh Kumar vs. Smt. Rama Agarwal; 2012 (5) ALJ 490)

Ss. 197 (2), 482 - Scope of

Section 197(2), 482 - Complaint filed by complaint against police personnel alleging that his son was killed in a fake encounter by the accused named in the complaint-Petition there against on ground that sanction required under Section 197 of Code was not obtained-High Court while allowing petition filed by Dy. S.P., dismissed the petitions of other police personnel - Appeals there against - The protection given under Section 197 of the Code is available only when the alleged act done by the public servant is reasonably connected with the discharge of his official duty and is not merely a cloak for doing the objectionable act. Instantly police must get protection given under Section 197 of the Code because acts complained of where so integrally connected with or attached to their office as to be inseparable from it –No inference should be drawn that police action was indefensible or vindictive or that police where not acting in discharge of their official duty- Where continuation of a prosecution would lead to abuse of process of court , power under Section 482 of the Code must be exercised and proceedings must be quashed- Instant case was one of such case where proceedings initiated against police personnel needed to be quashed - Appeal filed by complainant dismissed while proceedings initiated against police personal held liable to be quashed. (Om Praksh & Ors. v. State of Jharkhand Through the Secretary, Department of Home, Ranchi-1 & Anr.; 2012(7) Supreme 161)

S. 202 – Scope of enquiry by Court under S.202 Cr.P.C. – Limited only to the ascertainment of the truth or false-hood of the allegations made in the complaint

The Court had an occasion to consider the scope of the inquiry by the Magistrate under Section 202 of the old Code. This Court referred to the earlier two decisions in Vadilal Panchal and Chandra Deo Singh and in para 4 of the Report held as under:

Scope of the inquiry under Section 202 of the Code of Criminal Procedure is extremely limited – limited only to the ascertainment of the truth or falsehood of the allegations made in the complaint-

(i) on the materials placed by the complainant before the court;

(ii) for the limited purpose of finding out whether a prima facie case for issue of process has been made out; and

(iii) for deciding the question purely from the point of view of the complainant without at all adverting to any defence that the accused may have. In fact it is well settled that in proceedings under Section 202 the accused has got absolutely no locus standi and is not entitled to be heard on the question whether the process should be issued against him or not.

(Manharibhai Muljibhai Kakadia & Anr. Vs. Shaileshbhai Mohanbhai Patel & Ors.; 2012(7) Supreme 257)

S. 202 - Taking cognizance of an offence – Does not involve action of any kind

In R.R. Chari v. The State of Uttar Pradesh; [(1951) SCR 312], Court stated that taking cognizance did not involve any formal action or indeed action of any kind but it takes place no sooner a Magistrate applies his mind to the suspected commission of an offence.

The distinction between “taking cognizance of an offence” and “issuance of process” and observed as under:

“Cognizance is taken at the initial stage when the Magistrate applies his judicial mind to the facts mentioned in a complaint or to a police report or upon information received from any other person that an offence has been committed. The issuance of process is at a subsequent stage when after considering the material placed before it the court decides to proceed against the offenders against whom a prima facie case is made out.”

In the context of Sections 200, 202 and 203, the expression ‘taking cognizance’ has been used in the sense of taking notice of the complaint or the first information report or the information that offence has been committed on application of judicial mind. It does not necessarily mean issuance of process. (Manharibhai Muljibhai Kakadia & Anr. Vs. Shaileshbhai Mohanbhai Patel & Ors.; 2012(7) Supreme 257)

Ss. 202 and 203 – CJM applying his mind and on appreciation of materials on record directing investigation by police – Had taken cognizance of the offence – Dismissal of complaint U/s, 203 cannot be said to be at pre-cognizance stage

In the instant case, from the order passed by the CJM, there remains no doubt that on 18.06.2004, he had taken cognizance although he postponed issue of process by directing an investigation to be made by Police Officer. The submission of the learned counsel for the respondent no. 1 that the CJM had not taken cognizance in the matter and the complaint was dismissed under Section 203 at the pre-cognizance stage has no substance and is rejected. (Manharibhai Muljibhai Kakadia & Anr. Vs. Shaileshbhai Mohanbhai Patel & Ors.; 2012(7) Supreme 257)

Ss. 204, 70, 71, 74 and 76 – NBW – Issuance of – Duty and discretion of court regarding, explained

Since the execution of a non-bailable warrant (NBW) directly involves curtailment of liberty of a person, a warrant of arrest cannot be issued mechanically, but only after recording satisfaction, that in the facts and circumstances of the case, it is warranted. The courts have to be extra-cautious and careful while directing issuance of an NBW, else a wrongful detention would amount to denial of constitutional mandate envisaged in Article 21 of the Constitution. Since discretion in this behalf is entrusted with the court, it is not advisable to lay down immutable formulate on the basis whereof discretion could be exercised. It is for the court concerned to assess the situation and exercise discretion judiciously, dispassionately and without prejudice. At the same time, there is no gainsaying that the welfare of an individual must yield to that of the community. Therefore, in order to maintain the rule of law and to keep the society in functional harmony, it is necessary to strike a balance between an individual’s rights, liberties and privileges on the one hand, and the State on the other. (Raghuvansh Dewanchand Bhasin v. State of Maharashtra and another; (2012) 9 SCC 791)

Ss. 207, 208, 173 and 313 – Documents which accused is entitled to inspect – Scheme of Cr.P.C explained

While Section 207 first proviso empowers the court to exclude from the copies to be furnished to the accused such portions as may be covered by Section 173(6), the second proviso to Section 207 empowers the court to provide to the accused an inspection of the documents instead of copies thereof, if, in the opinion of the court it is not practicable to furnish to the accused the copies of the documents because of the voluminous content thereof. The issue that has emerged is, therefore, somewhat larger than what has been projected by the State and what has been dealt with by the High Court. The question which arises herein is no longer one of compliance or non-compliance with the provisions of Section 207 Cr.P.C. and travels beyond the confines of the strict language of the provisions of Cr.P.C. and touches upon the larger doctrine of a free and fair trial that has been painstakingly built up by the courts on a purposive interpretation of Article 21 of the Constitution. It is not the stage of making of the request for inspection of documents or the efflux of time that has occurred or the prior conduct of the accused that is material. What is of significance is if in a given situation the accused comes to the court contending that some papers forwarded to the court by the investigating agency have not been exhibited by the prosecution as the same favours the accused, the court must concede a right in the accused to have an access to the said documents, if so claimed. This is the core issue in the case which must be answered affirmatively. In this regard, it is difficult to agree with the view taken by the High Court that the accused must be made to await the conclusion of the trial to test the plea of prejudice that he may have raised. Such a plea must be answered at the earliest and certainly before the conclusion of the trial, even though it may be raised by the accused belatedly. This is how the scales of justice in criminal jurisprudence have to be balanced. (V.K. Sasikala v. State; (2012) 9 SCC 771)

S. 216 – Scope of - S. 216 empowers Trial Court to alter/add charge(s), at any stage before conclusion of the trial

The trial Court after appreciating the evidence on record, came to the conclusion that all three accused (A-l to A-3) did not act in furtherance of any common intention. Bhimanna (A-2) was solely responsible for the death of the deceased. Therefore, Bhimanna (A-2) alone could be convicted under Section 302 IPC and further under Sections 447and 504 read with Section 34 IPC. However, Yenkappa (A-I) and Suganna (A-3) acted without sharing any common intention with Bhimanna (A-2). Thus, they could not be convicted under Section 302 IPC and could be convicted only under Sections 447 and 504 read with Section 34 IPC. The court further held that Yenkappa (A-I) and Suganna (A-3) could also be convicted for the offence of causing injury Nos. 2 to 11, but no charge had been framed under any of the Sections 323, 324, 325, 326 and 327 IPC in this regard. Therefore, no punishment could be awarded to them for the same. The trial Court held as under:

“The prosecution has proved the charge under Section 302 read with Section 34 IPC only against Bhimanna and further the other charges under Sections 447 and 504 read with Section 34 IPC are proved against Yenkappa (A-I) and Suganna (A-3). Even though this court has accepted that A-I and A-3 have also assaulted by Mos. 1 to 3 respectively, on the deceased but those assaults are not the direct result of death of the deceased Bheemanna. Moreover, in the charge-sheet, there is no incorporation of charges such as Sec. 323,324,325,326 or 327 of IPC against these accused. Hence, in the absence of such specific charge regarding causing bleeding injuries by deadly weapons, by these A-I and A-3, this court is unable to convict them under any such charge, which is admittedly not incorporated in the charge-sheet and also not framed against them by this court.”

(Bhimanna vs. State of Karnataka; 2012(6) Supreme 533)

S. 235(2) - Court is obliged to make genuine effort to elicit any information or particulars from accused or prosecution which are relevant for awarding proper sentence even if accused remains silent - Enhancement of sentence of life imprisonment to death - Made only on basis of statement given by accused - Liable to be set aside - Case remanded

The Court said that the High Court has only mechanically recorded what the accused has said and no attempt has been made to elicit any information or particulars from the accused or the prosecution which are relevant for awarding a proper sentence. The accused, of course, was informed by the Court of the nature of the show-cause-notice. What was the nature of show cause notice? The nature of the show-cause-notice was whether the life sentence awarded by the trial court be not enhanced to death penalty. No genuine effort has been made by the Court to elicit any information either from the accused or the prosecution as to whether any circumstance exists which might influence the Court to avoid and not to award death sentence. Awarding death sentence is an exception, not the rule, and only in rarest of rare cases, the Court could award death sentence. The state of mind of a person awaiting death sentence and the state of mind of a person who has been awarded life sentence may not be the same mentally and psychologically. The court has got a duty and obligation to elicit relevant facts even if the accused has kept totally silent in such situations. In the instant case, the High Court has not addressed the issue in the correct perspective bearing in mind those relevant factors, while questioning the accused and, therefore, committed a gross error of procedure in not properly assimilating and understanding the purpose and object behind Section 235(2), Cr.P.C.

In such circumstances, we are inclined to set aside the death sentence awarded by the High Court and remit the matter to the High Court to follow Section 235(2), Cr.P.C. in accordance with the principles laid down. The conviction awarded by the High Court, however, stands confirmed. The High Court is requested to pass fresh orders preferably with a period of six months from the date of the receipt of the copy of this order. The appeal is allowed to that extent. (Ajay Pandit alias Jagdish Dayabhai Patel & Anr. v. State of Maharashtra; AIR 2012 SC 3422)

Ss. 306, 460(g)—Grant of pardon by Magistrate—Validity of

In the present case Magistrate tendered the pardon during investigation of the case. The alternative submission of learned counsel for the petitioner is that Magistrate has no power to tender pardon during investigation under Section 306, Cr.P.C. and therefore, tender of pardon granted by Magistrate in the present case is without jurisdiction as Magistrate had no power to tender pardon during investigation. The submission made by learned counsel for the petitioner appears to be attractive but has no force in view of Section 460, Cr.P.C. The Section 460, Cr.P.C. provides irregularities which do not vitiate proceedings and includes tender of pardon under Section 306, Cr.P.C.

It has been stated in the petition that respondent No. 2 moved two applications before Chief Judicial Magistrate, Solan for disposal. The Magistrate granted pardon on 7.1.2010 to respondent No. 4 and on 20.1.2010 to respondent No. 3. There is no averment in the petition that Magistrate while granting pardon to respondent Nos. 3, 4 did not act bona fide or Magistrate has acted malafide or due to any other extraneous reason. In absence of plea of mala fide or lack of bona fide it can be safely presumed that Magistrate while granting pardon to respondent Nos. 3, 4 acted bona fide. The applications were filed for tendering pardon before Chief Judicial Magistrate. It cannot be said that Chief Judicial Magistrate had no jurisdiction to entertain applications for grant of pardon in a case arising out under the Act during investigation.

The Chief Judicial Magistrate marked the applications to the Magistrate who as part of his duty took up the applications and tender pardon to respondent No. 3, 4. There is no specific averment in the petition raising grievance against procedural illegality committed by Magistrate while granting pardon. The grievance has been raised regarding the jurisdiction of Magistrate to tender pardon. It has already been held that Magistrate in a given situation has jurisdiction to tender pardon in a case arising under the Act. The act of Magistrate tendering pardon to respondent Nos. 3, 4 during investigation is protected by Section 460(g), Cr.P.C. when it has been found that Magistrate has acted while tendering pardon to respondent Nos. 3, 4 bona fide erroneously in good faith. (Ashok Sehgal vs. State of H.P. & Ors.; 2012 CrLJ 4963 (HP)

S. 313 – Scope of

Court has observed that first and foremost, as the law stands today, the statement of the accused recorded under Section 313 of the Code cannot be put against the accused person. The courts may rely on a portion of the statement of the accused and find him guilty in consideration of the other evidence against him led by the prosecution. The statement made under this Section should not be considered in isolation but in conjunction with evidence adduced by the prosecution. (Balaji Gunthu v. State of Maharashtra; 2012 (6) Supreme 710)

S. 313 – No answer or false answer to incriminating circumstances put to accused u/s 313 CrPC - Affect of – Deemed to provide missing link in prosecution story

In this case Court has held that it is obligatory on the part of the accused while being examined under Section 313 Cr.P.C., to furnish some explanation with respect to the incriminating circumstances associated with him, and the Court must take note of such explanation even in a case of circumstantial evidence, in order to decide, as to whether or not, the chain of circumstances is complete. When the attention of the accused is drawn to circumstances that inculpate him in relation to the commission of the crime, and he fails to offer an appropriate explanation, or gives a false answer with respect to the same, the said act may be counted as providing a missing link for completing the chain of circumstances. (Pudhu Raja & Anr. v. State of Rep. by Inspector of Police; 2012 (6) Supreme 688)

S. 313—Duty of accused while making such statement—Failure of discharge such duty—Effect of

It is the duty of the accused to explain the incriminating circumstance proved against him while making a statement under Section 313 CrPC. Keeping silent and not furnishing any explanation for such circumstance is an additional link in the chain of circumstances to sustain the charges against him. Recovery of incriminating material at his disclosure statement duly proved is a very positive circumstance against him. (Neel Kumar vs. State of Haryana; (2012) 3 SCC (Cri) 271)

Ss. 313, 207, 208 and 173 – Examination of accused – Purpose of – Access to document in custody of court at S. 313 stages

The examination of an accused under Section 313 Cr.P.C. not only provides the accused an opportunity to explain the incriminating circumstances appearing against him in the prosecution evidence but such examination also permits him to put forward his own version, if he so chooses, with regard to him involvement or otherwise in the crime alleged against him. Viewed from the latter point of view, the examination of an accused under Section 313 Cr.P.C. does have a fair nexus with the defence that he may choose to bring, if the need arises. Any failure on the part of the accused to put forward his version of the case in his examination under Section 313 Cr.P.C. may have the effect of curtailing his rights in the event the accused chooses to take up a specific defence and examine the defence witnesses. Besides, the answers given by the accused in his examination, if incorrect or incomplete, may also jeopardise him as such incorrect or incomplete answers may have the effect of strengthening the prosecution case against the accused. If the above is the avowed purport and object of the examination of an accused under Section 313 Cr.P.C., the appellant cannot be denied an access to the documents in respect of which prayers have been made in the applications herein.

The perception of prejudice is for the accused to develop and if the same is founded on a reasonable basis it is the duty of the court as well as the prosecution to ensure that the accused should not be made to labour under any such perception and the same must be put to rest at the earliest. Such a view is an inalienable attribute of the process of a fair trial that Article 21 of the Constitution guarantees to every accused. (V.K. Sasikala v. State; (2012) 9 SCC 771)

S. 320 – Compoundable offences – Abatement or attempt to commit such offences under section 34/145 I.P.C. – Also compoundable in same manner

Section 320 of the Code articulates public policy with regard to the compounding of offences. It catalogues the offences punishable under IPC which may be compounded by the parties without permission of the Court and the composition of certain offences with the permission of the court. The offences punishable under the special statutes are not covered by Section 320. When an offence is compoundable under Section 320, abatement of such offence or an attempt to commit such offence or where the accused is liable under Section 34 or 149 of the IPC can also be compounded in the same manner. A person who is under 18 years of age, or is an idiot or a lunatic is not competent to contract compounding of offence but the same can be done on his behalf with the permission of the court. If a person is otherwise competent to compound an offence is dead his legal representatives may also compound the offence with the permission of the court. Where the accused has been committed for trial or he has been convicted and the appeal is pending, composition can only be done with the leave of the court to which he has been committed or with the leave of the appeal court, as the case may be. The revisional court is also competent to allow any person to compound any offence who is competent to compound. The consequence of the composition of an offence is acquittal of the accused. Sub-section (9) of Section 320 mandates that no offence shall be compounded except as provided by this Section. Obviously, in view thereof the composition of an offence has to be in accord with Section 320 and in no other manner. (Gian Singh vs. State of Punjab & Another; 2012(6) Supreme 1)

Ss. 320 and 482 – Quashing a proceeding becoming futile after compromise and compounding of offence – Two different things – By quashing a proceeding court does not convert a non-compoundable offence into a compoundable one

Where High Court quashes a criminal proceeding having regard to the fact that dispute between the offender and victim has been settled although offences are not compoundable, it does so as in its opinion, continuation of criminal proceedings will be an exercise in futility and justice in the case demands that the dispute between the parties is put to an end and peace is restored; securing the ends of justice being the ultimate guiding factor. No doubt, crimes are acts which have harmful effect on the public and consist in wrong doing that seriously endangers and threatens well-being of society and it is not safe to leave the crime- doer only because he and the victim have settled the dispute amicably or that the victim has been paid compensation, yet certain crimes have been made compoundable in law, with or without permission of the Court. In respect of serious offences like murder, rape, dacoity, etc; or other offences of mental depravity under IPC or offences of moral turpitude under special statutes, like Prevention of Corruption Act or the offences committed by public servants while working in that capacity, the settlement between offender and victim can have no legal sanction at all. However, certain offences which overwhelmingly and predominantly bear civil flavour having arisen out of civil, mercantile, commercial, financial, partnership or such like transactions or the offences arising out of matrimony, particularly relating to dowry, etc. or the family dispute, where the wrong is basically to victim and the offender and victim have settled all disputes between them amicably, irrespective of the fact that such offences have not been made compoundable, the High Court may within the framework of its inherent power, quash the criminal proceeding or criminal complaint or F.I.R if it is satisfied that on the face of such settlement, there is hardly any likelihood of offender being convicted and by not quashing the criminal proceedings, justice shall be casualty and ends of justice shall be defeated. The above list is illustrative and not exhaustive. Each case will depend on its own facts and no hard and fast category can be prescribed.

The position that emerges from the above discussion can be summarised thus: the power of the High Court in quashing a criminal proceeding or FIR or complaint in exercise of its inherent jurisdiction is distinct and different from the power given to a criminal court for compounding the offences under Section 320 of the Code. Inherent power is of wide plenitude with no statutory limitation but it has to be exercised in accord with the guideline engrafted in such power viz; (i) to secure the ends of justice or (ii) to prevent abuse of the process of any Court. In what cases power to quash the criminal proceeding or complaint or F.I.R may be exercised where the offender and victim have settled their dispute would depend on the facts and circumstances of each case and no category can be prescribed. However, before exercise of such power, the High Court must have due regard to the nature and gravity of the crime. Heinous and serious offences of mental de pravity or offences like murder, rape, dacoity, etc. cannot be fittingly quashed even though the victim or victim's family and the offender have settled the dispute. Such offences are not private in nature and have serious impact on society, Similarly, any compromise between the victim and offender in relation to the offences under special statutes like Prevention of Corruption Act or the offences committed by public servants while working in that capacity etc; cannot provide for any basis for quashing criminal proceedings involving such offences. But the criminal cases having overwhelmingly and pre-dominating civil flavour stand on different footing for the purposes of quashing, particularly the offences arising from commercial, financial, mercantile, civil, partnership or such like transactions or the offences arising out of matrimony relating to dowry, etc. or the family disputes where the wrong is basically private or personal in nature and the parties have resolved their entire dispute. In this category of cases, High Court may quash criminal proceeding if in its view, because of the compromise between the offender and victim, the possibility of conviction is remote and bleak and continuation of criminal case would put accused to great oppression and prejudice and extreme injustice would be caused to him by not quashing the criminal case despite full and complete settlement and compromise with the victim. In other words, the High Court must consider whether it would be unfair or contrary to the interest of justice to continue with the criminal proceeding or continuation of the criminal proceeding would tantamount to abuse of process of law despite settlement and compromise between the victim and wrongdoer and whether to secure the ends of justice, it is appropriate that criminal case is put to an end and if the answer to the above question(s) is in affirmative, the High Court shall be well within its jurisdiction to quash the criminal proceeding. (Gian Singh vs. State of P&H High Court; 2012(6) Supreme 1)

Ss. 357(3), 421 and 431 – Imposition of separate sentence of imprisonment for default in payment of compensation – Permissibility of

The idea behind directing the accused to pay compensation to the complainant is to give him immediate relief so as to alleviate his grievance. In terms of Section 357(3) Cr.P.C. compensation is awarded for the loss or injury suffered by the person due to the act of the accused for which he is sentenced. If merely an order directing compensation is passed, it would be totally ineffective. It could be an order without any deterrence or apprehension of immediate adverse consequences in case of its non-observance. The whole purpose of giving relief to the complainant under Section 357(3) Cr.P.C. would be frustrated if he is driven to take recourse to Section 421 Cr.P.C. Order under Section 357(3) Cr.P.C. must have potentiality to secure its observance. Deterrence can only be infused into the order by providing for a default sentence. If Section 421 Cr.P.C. puts compensation ordered to be paid by the court on a par with fine so far as mode of recovery is concerned, then there is no reason why the court cannot impose a sentence in default of payment of compensation as it can be done in case of default in payment of fine under Section 64 IPC. The conclusion, therefore, is that the order to pay compensation may be enforced by awarding sentence of imprisonment in default. (R. Mohan v. A.K. Vijaya Kumar; (2012) 8 SCC 721)

S. 360—Release on probation—Entitlement

Accused persons having been convicted of offences under Penal Code, plea by other accused that he was below 21 years of age. Accused found to be below 21 yrs. on day of occurrence and had never been convicted of an offence earlier. Accused held entitled to be released on probation for good behavior by giving benefit of S. 360 of Code. (Afsar vs. State of Delhi; 2012 CrLJ 4969)

S. 368 - High Court simply disposing the appeal against conviction – Elaborate procedure laid down not followed – Not permissible – Matter remitted

It is the grievance of the appellants/ accused that when they filed regular appeal before the High Court challenging the conviction under Section 302 IPC and sentence of life imprisonment, the High Court without going into all the materials including oral and documentary evidence disposed of their appeal affirming the judgment of the Trial Court. In view of the above contention, we have gone through the impugned judgment of the, High Court. As rightly pointed out by the learned counsel appearing on behalf of the appellants, after narrating the case of the prosecution and the defence as well as the order of the Sessions Judge convicting the appellants, without adverting to all the materials, the High Court has merely disposed of the appeal. The procedure followed by the High Court in a matter of this nature is not acceptable. Elaborate procedures have been prescribed under Section 386 of Cr.P.C. for disposal of the appeal by the Appellate Court. It is the duty of an Appellate Court to look into the evidence adduced in the case arrive at an independent conclusion as to whether the said evidence can be relied upon or not and even it can be relied upon then whether the prosecution can be said to have proved beyond reasonable doubt on the said evidence. The credibility of a witness has to be adjudged by Appellate Court in drawing inference from proved and admitted facts. Further appeal cannot be disposed of without examining records/merits (Vide Padam Singh Vs. State of U.P.,1 AIR 2000 SC 361 and Bani Singh & Others Vs. State of U.P'2 1996 (4) SCC, 720. The said recourse has not been followed by the High Court. In view of the same, without expressing anything on the merits of the claim of either party, we set aside the impugned judgment of the High Court and remit it to the High Court. We request the High Court to restore the appeal on its file and dispose of the same as early as possible preferably within a period of six months. Learned counsel for the appellants has brought to our attention to the fact that the appellants are in jail for a period of more than 11 years and seek for an order of bail from this Court. Since we are now remitting the matters to the High Court, the appellants are free to make such claim before the High Court. With the above observation, the appeals are disposed of. (Iqbar Abdul Samiya Malek v. State of Gujarat; 2012 (7) Supreme 126)

S. 368 – Law relating to appeal against acquittal - Restated

The law on the issue of interference with an order of acquittal is to the effect that only in exceptional cases where there are compelling circumstances and the judgment in appeal is found to be perverse, the appellate court can interfere with the order of the acquittal. The appellate court should bear in mind the presumption of innocence of the accused and further that the trial court's acquittal bolsters the presumption of innocence. Interference in a routine manner where the other view is possible should be avoided, unless there are good reasons for interference. (Pudhu Raja & Anr. v. State of Rep. By inspector of Police; 2012 (6) Supreme 688)

S. 368 – Minor contradiction/omissions in evidence is not material - Review of evidence by appellate in exceptional case

Court has observed that, while appreciating.-the evidence, the court has to take into consideration whether the contradictions/omissions were of such magnitude so as to materially affect the trial. Minor contradictions, inconsistencies, embellishments or improvements in relation to trivial matters, which do not effect the core of the case of the prosecution, must not be made a ground for rejection of evidence, in its entirety. The trial court, after going through the entire evidence available, must form an opinion about the credibility of the witnesses, and the appellate court in the normal course of action, would not be justified in reviewing the same again, without providing justifiable reasons for the same. (Pudhu Raja & Anr. v. State of Rep. By inspector of Police; 2012 (6) Supreme 688)

S. 378 – Applicability of – While setting aside an order of acquittal the appellate court must specifically record a finding that the order of acquittal is perverse

It is true that it would not be possible for the appellate Court to interfere with the order of acquittal passed by the trial Court without rending specific finding, namely, that the decision of the trial Court is perverse or unreasonable resulting in miscarriage of justice. At the same time, it cannot be denied that the appellate Court while entertaining an appeal against the judgment of acquittal by the trial Court is entitled to re-appreciate the evidence and come to an independent conclusion. We are conscious of the fact that in doing so, the appellate Court should consider every material on record and the reasons given by the trial Court in support of its order of acquittal and should interfere only on being satisfied that the view taken by the trial Court is perverse and unreasonable resulting in miscarriage of justice. We also reiterate that if two views are possible on a set of evidence, then the appellate Court need not substitute its own view in preference to the view of the trial Court which has recorded an order of acquittal. (Shyam Babu vs. State of U.P.; 2012(6) Supreme 571)

Ss. 378 & 386—Appeal against acquittal—Scope of interference—Principles reiterated

The law of interfering with the judgment of acquittal is well settled. It is to the effect that only in exceptional cases where there are compelling circumstances and the judgment in appeal is found to be perverse, the appellate court can interfere with the order of the acquittal. The appellate court should bear in mind the presumption of innocence of the accused and further that the trial court’s acquittal bolsters the presumption of innocence. Interference in a routine manner where the other view is possible should be avoided, unless there are good reasons for interference. (Salim Gulab Pathan vs. State of Maharashtra; (2012) 3 SCC (Cri) 293)

S. 438 – Bail – Presence of accused person at the place of occurrence carrying arms established – Not entitled to bail

It is not necessary for us to delineate the factual position all over again. All relevant facts have already been noticed in the foregoing paragraphs. From the sequence of facts narrated. it is apparent that accused nos. 1, 6 and 11 are the main accused, as they are alleged to have determined the course of events of the incident dates 30.4.2011, which is subject matter of the complaint in First In formation Report no. 135 of 2011 registered at Police Station Chandrayangutta. The other accused had their own individual roles. Prima facie, the roles attributed to the respective accused, as have been depicted in the video clipping recorded by the listed witness no. 2 Shri Shaik Salem cannot be overlooked. Insofar as the aforesaid video clipping is concerned, reference may be made to the following observations recorded in the chargesheet dated 30.6.2011 filed with reference to the allegations contained in First Information Report no. 135 of 2011 registered at Police Station Chandrayangutta:-

“The video clipping recorded by LW-2 Shaik Salem shows the presence of the accused at the scene i.e. A-2 with a butcher's knife, AA Ibrahim stabbing Akbar with dagger, A-3 Abdullah struggling to release his weapon from the hands of LW-12 MLA Balala with the support of accused A-7 and A-14. A-5 Awad Bin Awad Younus Yafai carrying a cricket bat and racing to give a blow. The video also shows the severely injured Akbaruddin being shifted into Gypsy by LW-l Mansoor Awalgi, LW-2 Mohamood Awalgi, LW-ll AI Kaseri LW-28 Bawazeer and LW- 13 Habeeb Osman, LW-14 Mustafa Baig, LW-l3 Samad Bin Abided, LW-19 MD Shareed LW-8 Fayyaz Khan are also found at the scene of offence in the videograph.”

It is therefore apparent, that the aforesaid video clipping notices the presence and participation of accused nos. 2, 3, 4, 5, 7 and 14. Therefore, as of now, prima facie, the participation of these accused in the occurrence of 30.4.2011 cannot be seriously doubted, unless of course, during the course of evidence, the video clipping is shown to be doctored.

The allegations, as they appear in the charge-sheet dated 30.6.2011, leave no room for doubt that the accusations are of a very serious nature. In broad day light, at 11.10 AM, an elected representative of the people was attacked, without any fear of the repercussions. The attacks resulted in serious injuries to him. In the aforesaid attack, at least two of the accused were in possession of guns. The MLA is alleged to have received gun shot injuries as well. The allegations constitute an open challenge to civil society. Persons involved in the alleged incident can not be accepted to remain disciplined if enlarged on bail. It is likely that they would threaten witnesses, which would severely prejudice the outcome of the trial. In fact, it has been noticed in the impugned order passed by the High Court that accused no. 8, after his release on bail, had picked up a quarrel with the MLA on 1.3.2012, and an entry of the aforesaid fact was recorded in the Station General Diary. The aforesaid factual position has been noticed in paragraph 10 of the impugned order. The same was emphatically highlighted by the learned Additional Solicitor General who represented the State of Andhra Pradesh. It is also apparent, that if the trial concludes by returning a finding against the accused, they would be liable to be subjected to extremely severe punishment(s). As of now, the period of their custody is trivial in comparison to the punishment prescribed for the offences for which they are charged.

Insofar as the other cases filed by the State of Andhra Pradesh are concerned, a video clipping clearly demonstrates the presence of accused nos. 2 to 5, 7 and 14 at the place of occurrence. As such, bail granted to accused nos. 2, 3, 5, 7 and 14 (since accused no. 4 whose presence was shown in the video clipping, has already died) by the High Court, is hereby set aside. Taking into consideration the fact that the complainant, in the First Information Report, has involved a large number of members in one family, wherein the accused nos. 1, 2 and 6 are real brothers, and the other accused are their children, it would be just and appropriate to affirm the order passed by the High Court qua all the accused other than the main accused and the accused depicted in the video clipping. Accordingly, the order of the High Court extending the benefit of bail to accused nos. 2, 3, 5, 7 and 14 is hereby set aside. The bail granted to the rest of the accused, by the High Court, is affirmed. (Younus Bin Omer Yafai @ Younus Bhai & Ors vs. State of A.P., State of Andhra Pradesh vs. Awad Bin Younus Yafai Etc., State of Andhra Pradesh vs. Mohammed Bin Saleh Wahlan & Ors, State of Andhra Pradesh vs. Abdulla Bin Younus Yafai; 2012(7) Supreme 442)

S. 438 – Refusal of Anticipatory Bail - Consideration for

This appeal is directed against the final order dated 19.09.2011 passed by the High Court of Judicature at Bombay in Criminal Application No. 786 of 2011 whereby the High Court dismissed the application for anticipatory bail filed by the appellant herein.

In this case, the point for consideration in this appeal is whether the appellant has made out a case for grant of anticipatory bail under Section .438 of the Code of Criminal Procedure, 1908 (in short 'the Code').

It is stated, by the respondents that after the order of this
Court dated 23.09.2011 granting interim protection, the appellant has misused his liberty in creating hindrance to the investigation and continues to scuttle it and also intimidating and pressurizing the Complainant as well as the prosecution witnesses.

In the light of the above discussion and in view of the mandate prescribed in Section 438 of the Code, Court has fully agreed with the conclusion arrived at by the Additional Sessions Judge and the High Court in rejecting the relief of anticipatory bail. (Maruti Nivrutti Navale vs. State of Maharashtra & Anr.; 2012(6) Supreme 577)

S. 438 – Anticipatory bail – S. 438 and Special Statutes – S. 3(1)(x), SC/ST (Prevention of Atrocities) Act – Non entitlement to anticipatory bail with respect to special Statute

Section 18 of the SC/ST Act crates a bar for invoking Section 438 Cr.P.C. However, a duty is cast on the court to verify the averments in the complaint and to find out whether an offence under Section 3(1) of the SC/ST Act has been prima facie made out. In other words, if there is a specific averment in the complaint, namely, insult or intimidation with intent to humiliate by calling with caste name, the accused persons are not entitled to anticipatory bail. When an offence is registered against a person under the provisions of the SC/ST Act, no court shall entertain an application for anticipatory bail, unless it prima facie finds that such an offence is not made out.

Section 18 of the SC/ST Act creates a bar for invoking Sectin 438 of the Code. However, a duty is cast on the court to verify the averments in the complaint and to find out whether an offence under Section 3(1) of the SC/ST Act has been prima facie made out. In other words, if there is a specific averment in the complaint, namely, insult or intimidation with intent to humiliate by calling with caste name, the accused persons are not entitled to anticipatory bail.

The scope of Section 18 of the SC/ST Act read with Section 438 of the Code is such that it creates a specific bar in the grant of anticipatory bail. When an offence is registered against a person under the provisions of the SC/ST Act, no court shall entertain an application for anticipatory bail, unless it prima facie finds that such an offence is not made out. Moreover, while considering the application for bail, scope for appreciation of evidence and other material on record is limited. The court is not expected to indulge in critical analysis of the evidence on record. When a provision has been enacted in the Special Act to protect the persons who belong to the Scheduled Castes and the Scheduled Tribes and a bar has been imposed in granting bail under Section 438 of the Code, the provision in the Special Act cannot be easily brushed aside by elaborate discussion on the evidence. (Vilas Pandurang Pawar v. State of Maharashtra; (2012) 8 SCC 795)

Ss. 438 and 82 – Anticipatory bail – Grant of – Proper exercise of discretionary jurisdiction for disposal of bail application

Before considering the claim of the appellant, it is useful to refer Section 438 of the Code relating to grant of bail to a person who is apprehending arrest which reads as under:-

“438. Direction for grant of bail to person apprehending arrest.-(1) Where any person has reason to believe that he may be arrested on accusation of having committed a non-bailable offence, he may apply to the High Court or the Court of Session for a direction under this section that in the event of such arrest he shall be released on bail; and that court may, after taking into consideration, inter alia, the following factors, namely-

(i) the nature and gravity of the accusation;

(ii) the antecedents of the applicant including the fact as to whether he has previously undergone imprisonment on conviction by a court in respect of any cognizable offence.

(iii) The possibility of the applicant to flee from justice; and

(iv) Where the accusation has been made with the object of injuring or humiliating the applicant by having him so arrested, either reject the application forthwith or issue an interim order for the grant of anticipatory bail;

Provided that, where the High Court or, as the case may be, the Court of Session, has not passed any interim order under this sub-section or has rejected the application for grant of anticipatory bail, it shall be open to an officer in charge of a police station to arrest, without warrant the applicant on the basis of the accusation apprehended in such application.”

It makes it clear that in a non-bailable offence if a person has reason to believe that he may be arrested, he is free to apply to the High Court or the Court of Session praying that in the event of such arrest, he shall he released on bail. The belief that the applicant may be arrested must be founded on reasonable grounds. While considering such a request, the Court has to take into consideration the nature and the gravity of the accusation, antecedents, possibility of the applicant to flee from justice, etc. Further, normally, the Court should not exercise its discretion to grant anticipatory bail in disregard of the magnitude and seriousness of the matter. The matter regarding the unnatural death of the daughter-in-law at the house of her in-laws was still under investigation and the appropriate course to adopt was to allow the Magistrate concerned to deal with the same on the basis of the material before the Court.

From these materials and information, it is clear that the present appellant was not available for interrogation and investigation and was declared as “absconder”. Normally, when the accused is “absconding” and declared as a “proclaimed offender”, there is no question of granting anticipatory bail. The court reiterate that when a person against whom a warrant had been issued and is absconding or concealing himself in order to avoid execution of warrant and declared as a proclaimed offender in terms of Section 82 of the Code he is not entitled to the relief of anticipatory bail. (Lavesh v. State (NCT of Delhi); (2012) 8 SCC 730)

S. 439 - Bail – Principles for grant of

On relying of the case, in Ram Govind Upadhyay v. Sudarshan Singh and Others! [(2002) 3 SCC 598], it has been opined that the grant of bail though involves exercise of discretionary power of the Court, such exercise of discretion has to be made in a judicious manner and not as a matter of course. Heinous nature of the crime warrants more caution and there is greater chance of rejection of bail, though, however dependent on the factual matrix of the matter. The said case the learned Judges referred to the decision in Prahlad Singh Bhati v. NCT, Delhi and Another [(2001) 4 SCC 280] and stated as follows:-

"(a) While granting bail the court has to keep in mind not only the nature of the accusations, but the severity of the punishment, if the accusation entails a conviction and the nature of evidence in support of the accusations.

(b) Reasonable apprehensions of the witnesses being tampered with or the apprehension of there being a threat for the complainant should also weigh with the court in the matter of grant of bail.

(c) While it is not expected to have the entire evidence establishing the guilt of the accused. beyond reasonable doubt but there ought always to be a prima facie satisfaction of the court in support of the charge.

(d) Frivolity in prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail, and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused is entitled to an order of Bail”.

Court are absolutely conscious that liberty of a person should not be lightly dealt with, for deprivation of liberty of a person has immense impact on the mind of a person. Incarceration creates a concavity in the personality of an individual. Sometimes it causes a sense of vacuum. Needless to emphasize, the sacrosanctity of liberty is paramount in a civilized society

It is a well accepted principle that the concept of liberty is not in the realm of absolutism but is a restricted one. The cry of the collective for justice, its desire for peace and harmony and its necessity for security cannot be allowed to be trivialized. The life of an individual living in a society governed by Rule of Law has to be regulated and such regulations which are the source in law subserve the social balance and function as a significant instrument for protection of human rights and security of the collective. It is because fundamentally laws are made for their obedience so that every member of the society lives peacefully in a society to achieve his individual as well as social interest. That is why Edmond Burke while discussing about liberty opined, "it is regulated freedom”

It is also to be kept in mind that individual liberty cannot be accentuated to such an extent or elevated to such a high pedestal which would bring in anarchy or disorder in the society. The prospect of greater justice requires that law and order should prevail in a civilized milieu. True it is, there can be no arithmetical formula for fixing the parameters in precise exactitude but the adjudication should express not only application of mind but also exercise of jurisdiction on accepted and established norms. Law and order in a society protect the established precepts and see to it that contagious crimes do not become epidemic. In an organized society the concept of liberty basically requires citizens to be responsible and not to disturb the tranquility and safe which every well-meaning person desires. Having said about the sanctity of liberty and the restrictions imposed by law and the necessity of collective security, the Court held an as to what is the connotative concept of bail and said that, in Halsbury's Laws of England [Halsbury's Laws of England, 4th Edn.,Vol. 11, para 166] it has been stated thus:-

"The effect of granting bail is not to set the defendant (accused) at liberty but to release him from the custody of law and to entrust him to the custody of his sure ties who are bound to produce him to appear at his trial at a specified time and place. The sureties may seize their principal at any time and may discharge themselves by handing him over to the custody of law and he will then be imprisoned.”

(Ash Mohammad v. Shiv Raj Singh @ Lala Babu & Anr.; 2012 (6) Supreme 722)

Ss. 464/465 - Defect in framing of charge – Immaterial unless causes prejudice to the accused

In Sanichar Sahni v. State of Bihar, AIR 2010 SC 3786, AIR 2010 SC 3786, this Court dealt with the aforementioned issue elaborately, and upon consideration of a large number of earlier judgments, held as under:

"Therefore, ....................... unless the convict is able to establish that defect in framing the charges has caused real prejudice to him and that he was not informed as to what was the real case against him and that he could not defend himself properly, no interference is required on mere technicalities. Conviction order in fact is to be tested on the touchstone of prejudice theory.”

In present case, the defect in framing of the charges must be so serious that it cannot be covered under Sections 464/465 Cr.P.C., which provide that, an order of sentence or conviction shall not be deemed to be invalid only on the ground that no charge was framed, or that there was some irregularity or omission or misjoinder of charges, unless the court comes to the conclusion that there was also, as a consequence, a failure of justice. In determining whether any error, omission or irregularity in framing the relevant charges, has led to a failure of justice, the court must have regard to whether an objection could have been raised at an earlier stage, during the proceedings or not. (Darbara Singh vs. State of Punjab; 2012(6) Supreme 584)

S. 482 - Inherent power to do complete and substantial justice – Should not be exercised as against the express bar of law

Section 482 of the Code, as its very language suggests, saves the inherent power of the High Court which it has by virtue of it being a superior court to prevent abuse of the process of any court or otherwise to secure the ends of justice. It begins with the words, 'nothing in this Code' which means that the provision is an overriding provision. These words leave no manner of doubt that none of the provisions of the Code limits or restricts the inherent power. The guideline for exercise of such power is provided in Section 482 itself i.e., to prevent abuse of the process of any court or otherwise to secure the ends of justice. As has been repeatedly stated that Section 482 confers no new powers on High Court; it merely safeguards existing inherent powers possessed by High Court necessary to prevent abuse of the process of any Court or to secure the ends of justice. It is equally well settled that the power is not to be resorted to if there is specific provision in the Code for the redress of the grievance of an aggrieved party. It should be exercised very sparingly and it should not be exercised as against the express bar of law engrafted in any other provision of the Code.

In the very nature of its constitution, it is the judicial obligation of the High Court to undo a wrong in course of administration of justice or to prevent continuation of unnecessary judicial process. This is founded on the legal maxim quando lex aliquid alicui concedit, conceditur et id sine qua res ipsa esse non protest. The full import of which is whenever anything is authorised, and especially if, as a matter of duty, required to be done by law, it is found impossible to do that thing unless something else not authorised in express terms be also done, may also be done, then that something else will be supplied by necessary intendment. Ex debito justitiae is inbuilt in such exercise; the whole idea. is to do real, complete and substantial justice for which it exists. The power possessed by the High Court under Section 482 of the Code is of wide amplitude but requires exercise with great caution and circumspection. (Gian Singh vs. State of Punjab & Another; 2012(6) Supreme 1)

S. 482—Quashment of proceedings—Grounds—Amicable settlement—Cognizance of matrimonial offences taken—Settlement of disputes by parties—High Court rejecting appellant husband’s request for quashment on ground of non-appearance of respondent wife before court

Leave granted. This appeal is directed against the judgment and order passed by the High Court of Delhi in Rajiv Saxena vs. State, CRLMC No. 3420 of 2010, order dated 1.11.2010 (Del).

The learned Magistrate has taken cognizance of the offence pleaded in the FIR u/ss. 498-A, 496 read with Section 34 of the Penal Code, 1860. Aggrieved by the same, the appellant had approached the High Court by filing Criminal Misc. C. No. 3420 of 2010 and in that he had stated that the parties have settled the matter and, therefore, the proceedings before the learned Magistrate need not be continued and the same requires to be quashed. The High Court, in the impugned judgment has observed that since the respondent wife is not appearing before the High Court, the request of the appellant cannot be granted.

This Court, while entertaining the special leave petition had issued notices to the respondents. The respondent wife has entered appearance through her learned counsel. She has also filed the counter-affidavit. In that she states that the request of the appellant may be granted.

The respondent wife is also present before the Court. She is agreeable for the request made by her husband.

In view of the above, the request of the appellant is granted and the proceedings before the learned Magistrate in Case No. 31 of 2008 dated 16.6.2008, District South West, PS CAW Nanakpura, New Delhi are quashed. The appeal is disposed of accordingly. Ordered accordingly. (Rajiv Saxena vs. State (NCT of Delhi); (2012) 3 SCC (Cri) 327)

S. 482—Inherent power—Scope—F.I.R. disclosing non-compoundable offences can be quashed in appropriate case

The factual details, earlier decision, various offences u/s. 320 of the Code and invocation of Section 482 of the Code, we fully concur with the said conclusion. In the case on hand, irrespective of the earlier dispute between Respondent No. 2- the complainant and the appellant being Accused No. 3 as well as Accused Nos. 1 and 2 subsequently and after getting all the materials, relevant details etc., the present appellant (Accused No. 3) sworn an affidavit with bona fide intention securing the right, title and interest in favour of Respondent No. 2 herein- the Complainant. In such bona fide circumstances, the power u/s. 482 may be exercised. Further, in view of the settlement arrived at between Respondent No. 2- the complainant and the appellant (Accused No. 3), there is no chance of recording a conviction insofar as the present appellant is concerned and the entire exercise of trial is destined to be an exercise in futility. Inasmuch as the matter has not reached the stage of trial, we are of the view that the High Court, by exercising the inherent power u/s. 482 of the Code even in offences which are not compoundable u/s. 320, may quash the prosecution. However, as observed in Shiji (supra), the power u/s. 482 has to be exercised sparingly and only in cases where the High Court is, for reasons to be recorded, of the clear view that continuance of the prosecution would be nothing but an abuse of the process of law. In other words, the exercise of power must be for securing the ends of justice and only in cases where refusal to exercise that power may result in the abuse of the process of law. (Jayrajsinh Digvijaysinh Rana vs. State of Gujarat; 2012 Cr.L.J. 3900 (SC)

S. 482—Quashing of criminal trial not permissible solely on ground of delay

Criminal offence is considered as a wrong against the State and the society even though it has been committed against an individual. Normally, in serious offences, prosecution is launched by the State and a Court of law has no power to throw away prosecution solely on the ground of delay. Mere delay in approaching a Court of law would not by itself, afford a ground for dismissing the case, though it may be relevant circumstance in reaching a final verdict. (Ranjan Dwivedi vs. C.B.I., Through the Director General; 2012 Cr.L.J. 4206 (SC)

Ss. 482, 320—Quashing of criminal proceedings in exercise of inherent power is distinct from power of compounding of offence

Quashing of offence or criminal proceedings on the ground of settlement between an offender and victim is not the same thing as compounding of offence. They are different and not interchangeable. Strictly speaking, the power of compounding of offences given to a Court under Section 320 is materially different from the quashing of criminal proceedings by the High Court in exercise of its inherent jurisdiction. In compounding of offences, power of a criminal Court is circumscribed by the provisions contained in Section 320 and the Court is guided solely and squarely thereby while, on the other hand, the formation of opinion by the High Court for quashing a criminal offence or criminal proceeding or criminal complaint is guided by the material on record as to whether the ends of justice would justify such exercise of power although the ultimate consequence may be acquittal or dismissal of indictment. Where High Court quashes a criminal proceeding having regard to the fact that dispute between the offender and victim has been settled although offences are not compoundable, it does so as in its opinion, continuation of criminal proceedings will be an exercise in futility and justice in the case demands that the dispute between the parties is put to an end and peace is restored; securing the ends of justice being the ultimate guiding factor. No doubt, crimes are acts which have harmful effect on the public and consist in wrong doing that seriously endangers and threatens well-being of society and it is not safe to leave crime-doer only because he and the victim have settled the dispute amicably or that the victim has been paid compensation, yet certain crimes have been made compoundable in law, with or without permission of the Court. In respect of serious offences like murder, rape, dacoity, or other offences of mental depravity under IPC or offences of moral turpitude under special statutes, like Prevention of Corruption Act or the offences committed by public servants while working in that capacity, the settlement between offender and victim can have no legal sanction at all. However, certain offences which overwhelmingly and predominantly bear civil flavour having arisen out of civil, mercantile, commercial, financial, partnership or such like transactions or the offences arising out of matrimony, particularly relating to dowry, etc. or the family dispute, where the wrong is basically to victim and the offender and victim have settled all disputes between them amicably, irrespective of the fact that such offences have not been made compoundable, the High Court may within the framework of its inherent power, quash, the criminal proceeding or criminal complaint or F.I.R. if it is satisfied that on the face of such settlement, there is hardly any likelihood of offender being convicted and by not quashing the criminal proceedings; justice shall be casualty and ends of justice shall be defeated. Inherent power is of wide plenitude with no statutory limitation but it has to be exercised in accord with the guideline engrafted in such power viz; (i) to secure the ends of justice or (ii) to prevent abuse of the process of any Court. In what cases power to quash the criminal proceeding or complaint or F.I.R. may be exercised where the offender and victim have settled their dispute would depend on the facts and circumstances of each case and no category can be prescribed. However, before exercise of such power, the High Court must have due regard to the nature and gravity of the crime. (Gian Singh vs. State of Punjab; 2012 Cr.L.J. 4934 (SC)

S. 482 – Exercise of inherent powers of High Court – Principles, reiterated

Supreme Court has observed that it was not proper for the High Court to rely on affidavits submitted by the witnesses in coming to any conclusion especially in serious offences. Hence, the conclusion of the High Court that no case had been made out against Respondent 1-accused was erroneous. The plea of leniency as Respondent 1-accused was on the verge of retirement and had faced agony of investigation since 2007, has to be rejected as in serious cases showing mercy may send wrong signals. The proceedings against Respondent 1-accused are restored and the court which may be seized of this matter shall deal with it strictly on merits and in accordance with law. (State of Rajasthan v. Rajkumar Agarwal; (2012) 8 SCC 616)

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Criminal Trial

Accused – Despite having been mentioned in the rukka, the person not arrayed as accused

Learned counsel for the appellant in the forefront submitted that having regard to the specific reference made in the rukka about the presence of Surjit Singh but yet not being made a party to the crime and non-consideration of the grievance of the said Surjit Singh with reference to the extent of injuries sustained by him which according to him were inflicted upon him by the complainant party, the prosecution case was not truthful, tampering of the whole case with a view to pin down the appellants and the other accused by fabricating the evidence. Learned counsel for the State in his submission, however, pointed out that there could not have been any false case fastened on the appellants inasmuch as the rukka which was prepared at 10.30 p.m. at the hospital was received at the police station and thereafter the law was set in motion by registering the FIR without any loss of time. According to learned counsel, the rukka was written at 10.30 p.m. and the FIR was registered at 10.35 p.m. wherein the entire allegations brought out in the rukka were duly carried out and in the said circumstances, there was no basis at all for submission made on behalf of the appellants alleging false case foisted against the appellant. We find force in the said submission of learned counsel for the State. As far as non-inclusion of Surjit Singh (OW-2) as an accused or as a witness is concerned, though in the first blush, it may appear as though some deliberate attempt was made at the instance of the prosecution to suppress certain vital factors, on a close scrutiny, we find that except referring to the name of Surjit Singh in the rukka, there was no specific overt act alleged against him in regard to his participation in the actual crime of assault or inflicting of injuries or use of any weapon against either the deceased or any other person. Therefore, the non-inclusion of Surjit Singh in the array of accused by the prosecution cannot be taken so very seriously in order to doubt the whole genesis of the case alleged against the appellant and the other accused. (Avtar Singh vs. State of Haryana, and Kirpal Singh @ Pala & Ors vs. State of Haryana & Ors.; 2012(7) Supreme 423)

Circumstantial evidence – Motive is significant and important

It is evident that in spite of the fact that in case there is no independent witness of recoveries and panch witnesses are only police personnel, it may not affect the merits of the case. In the instant case, the defence did not ask this issue in the cross-examination to Inspector Shamsher Singh (PW.21) as why the independent person was not made the witness. More so, it was the duty of the appellant to furnish some explanation in his statement under Section 313 Cr.PC., as under what circumstances his car had been parked at the Delhi Airport and it remained there for 3 hours on the date of occurrence. More so, the call records of his telephone make it evident that he was present in the vicinity of the place of occurrence and under what circumstances recovery of incriminating material had been made on his voluntary disclosure statement. Merely making a bald statement that he was innocent and recoveries had been planted and the call records were false and fabricated documents, is not enough as none of the said allegations made by the appellant could be established. In view of the above, Court do not find any force in this appeal. The appeal is therefore, dismissed accordingly. (Munish Mubar vs. State of Haryana; 2012(7) Supreme 405)

Conviction - Accused cannot be convicted solely on medical evidence brushing aside eye witness evidence

The High Court has also relied upon the post-mortem report of the Doctor. In our opinion, since the entire evidence of the eye- witnesses has not been accepted by the High Court, it could not have merely relied upon the post-mortem report to convict the appellant for an offence under Section 302 of the LP.C. Further, in our view, the post-mortem report should be in corroboration with the evidence of eye-witnesses and cannot be an evidence sufficient to reach the conclusion for convicting the appellant. In view of the above, we have no other alternative but to allow this appeal and set aside the judgment and order passed by the High Court convicting the appellant for an offence punishable under Section 302 of the I.P.C. (Balaji Gunthu v. State of Maharashtra; 2012 (6) Supreme 710)

Evidence Act Sec. 45 - Medical evidence and ocular evidence - Relevancy of

The question of inconsistency between medical evidence and ocular evidence is concerned, the law is well settled that, unless the oral evidence available is totally irreconcilable with the medical evidence, the oral evidence would have primacy. In the event of contradictions between medical and ocular evidence, the ocular testimony of a witness will have greater evidentiary value vis-a-vis medical evidence and when medical evidence makes the oral testimony improbable, the same becomes a relevant factor in the process of evaluation of such evidence. It is only when the contradiction between the two is so extreme that the medical evidence completely rules out all possibilities of the ocular evidence being true at all, that the ocular evidence is liable to be disbelieved. (Darbara Singh vs. State of Punjab; 2012(6) Supreme 584)

Examination of injured person – Examination of all witnesses not necessary

Learned counsel further submitted that though the prosecution would claim injuries on several persons of the complainant party, the other persons who were stated to have been injured or were present at the place of occurrence were not examined. In this context, it will be relevant to refer to the decision of this Court reported in Tej Prakash v. The State of Haryana [JT 1995 (7) SC 561] wherein this Court held that all the witnesses of the prosecution may not be called and it is sufficient if witnesses who were essential to the unfolding of the narrative on which the prosecution is based must be called by the prosecution. The legal position has been stated in paragraph 18 as under:

“18. In support of his contention that serious prejudice was caused to the appellant by non-examination of Phool Singh who, had been cited by the prosecution as one of the witness, Mr. Ganesh relied upon Stephen Senivaratne v. The King, AIR 1936 P.C. 289, Habeeb Mohammad v. The State of Hyderabad, 1954 (5) SCR 475 and the State of UP and another v. Jaggo Alias Jagdish and others 1971 (2) SCC 42. The aforesaid decisions can be of little assistance to the appellant in the present case. What was held by the Privy Council and this Court was that witnesses who were essential to the unfolding of the narrative on which the prosecution is based must be called by the prosecution whether the effect of their testimony is for or against the case for the prosecution and that failure to examine such a witness might affect a fair trial. It was also observed that all the witnesses of the prosecution need not be called. In the present case, the witnesses who were essential to the unfolding of the narrative had been examined.”

(Emphasis added)

The law on this aspect can be succinctly stated to the effect that in order to prove the guilt of the accused, the prosecution should take earnest effort to place the material evidence both oral and documentary which satisfactorily and truthfully demonstrate and fully support the case of the prosecution. Where there were several persons stated to have witnessed the incident and the prosecution examined those witnesses who were able to depose the nature of offence committed more accurately leaving no room for doubt about the involvement of the accused in the occurrence and the extent of their involvement with specific overt act and also were able to with stand the cross-examination by maintaining the sequence and the part played as originally stated, it will be wholly irrelevant and unnecessary to multiply the number of witnesses to repeat the same version. (Avtar Singh vs. State of Haryana, and Kirpal Singh @ Pala & Ors vs. State of Haryana & Ors.; 2012(7) Supreme 423)

S. 32(1)—Dying Declaration—Admissibility and evidentiary value of—Principles reiterated

In Bhajju vs. State of M.P., (2012) 4 SCC 327, this Court clearly stated that Section 32 of the Evidence Act was an exception to the general rule against admissibility of hearsay evidence. Clause (1) of Section 32 makes the statement of the deceased admissible, which has been generally described as dying declaration. The Court, in no uncertain terms, held that: (SCC p.336, para 24)

“24. … It cannot be laid down as an absolute rule of law that the dying declaration cannot from the sole basis of conviction unless it is corroborated by other evidence.”

The dying declaration, if found reliable, could from the basis of conviction.

In Chirra Shivraj vs. State of A.P., (2010) 14 SCC 444, the Court expressed a caution that a mechanical approach in relying upon the dying declaration just because it is there, is extremely dangerous. The court has to examine a dying declaration scrupulously with a microscopic eye to find out whether the dying declaration is voluntary, truthful, made in a conscious state of mind and without being influenced by other persons and where these ingredients are satisfied, the Court expressed the view that it cannot be said that on the sole basis of a dying declaration, the order of conviction could not be passed.

In Laxman vs. State of Maharashtra, (2002) 6 SCC 710, the Court while dealing with the argument that the dying declaration must be recorded by a Magistrate and the certificate of fitness was an essential feature, made the following observations.

The justice theory regarding acceptability of a dying declaration is that such declaration is made in extremity, when the party is at the point of death and when every hope of this world is gone, when every motive to falsehood is silenced, and the man is induced by the most powerful consideration to speak only the truth. Notwithstanding the same, great caution must be exercised in considering the weight to be given to this species of evidence on account of the existence of many circumstances which may affect their truth. The situation is which a man is on the deathbed is so solemn and serene, is the reason in law to accept the veracity of his statement. It is for this reason the requirements of oath and cross-examination are dispensed with. Since the accused has no power of cross-examination are dispensed with. Since the accused has no power of cross examination, the courts insist that the dying declaration should be of such a nature as to inspire full confidence of the court in its truthfulness and correctness.

The “dying declaration” is the last statement made by a person at a stage when he is in serious apprehension of his death and expects no chances of his survival. At such time, it is expected that a person will speak the truth and only the truth. Normally in such situations the courts attach the intrinsic value of truthfulness to such statement. Once such statement has been made voluntarily, it is reliable and is not an attempt by the deceased to cover up the truth or falsely implicate a person, then the courts can safely rely on such dying declaration and it can from the basis of conviction. More so, where the version given by the deceased as dying declaration is supported and corroborated by other prosecution evidence, there is no reason for the courts to doubt the truthfulness of such dying declaration. (Sudhakar vs. State of M.P.; (2012) 3 SCC (Cri) 430)

Eye-witness – Reliability of

PW 1 informed the police about the incident in which her husband had been viciously attacked by about 10 to 11 persons. The statement of the deceased was also duly recorded in the presence of the medical officer in which he named all the assailants. PW 1, wife of the deceased, and PW 2, eyewitness had given a consistent eyewitness account. PW 1’s statement was consistent with the version of the deceased recorded at the hospital. The bloodstained clothes of the accused and the sickle were recovered at the instance of the accused. The trial court convicted the appellants. The appeal there against was dismissed by the High Court. In his defence, the appellant contended false implication due to enmity; that, the deceased suffered injuries due to an accident; that the statement of PW 1 was unreliable due to her unnatural conduct as initially she did not name any of the accused; that the injuries were so serious that the injured victim had not been in a position to speak, as in such injuries a person becomes unconscious, hence the so-called dying declaration was not reliable; and that, PW 2 was related to the deceased.

The narration of events by PW 1, wife of the victim was not shaken when she was subjected to a lengthy cross-examination. The fact that she could not indicate the precise injury caused by each of the accused is quite understandable as her husband was attacked by a large group of people. In such a situation, it would perhaps be humanly impossible for anyone to indicate the precise injury caused by each one of the appellant-accused. PW 1’s evidence need not be discarded as she did not name each and every accused person at the first opportunity, when she went to the police station. Her plight in such a situation is not difficult to imagine. Lastly, the dying declaration being consistent and clear also cannot be discarded since the doctor has certified that the victim declarant was conscious enough to make a statement. (Narayan Manikrao Salgar v. State of Maharashtra; (2012) 8 SCC 622)

Investigation – Right to fair investigation – Scope of

The parameters governing the process of investigation of a criminal charge, the duties of the investigating agency and the role of the courts after the process of investigation is over and a report thereof is submitted to the court, are exhaustively laid down in the different chapters of Cr.P.C.. Though the power of the investigating agency is large and expansive and the courts have a minimum role in this regard, there are inbuilt provisions in Cr.P.C. to ensure that investigation of a criminal offence is conducted keeping in minds the rights of an accused to a fair process of investigation. The mandatory duty cast on the investigating agency to maintain a case diary of every investigation on a day-to-day basis and the power of the court under Section 172(2) Cr.P.C. and the plenary power conferred in the High Courts by Article 226 of the Constitution are adequate safeguards to ensure the conduct of a fair investigation.

Sentence—Death sentence in case of rape & murder of minor by father—communication to specified term—Consideration of

There is no reason to disbelieve the above evidence and circumstances nor is there any reason to doubt the commission of offence by the appellant and the recovery of incriminating material on his disclosure statement. The incriminating circumstances taken into consideration by the courts below can reasonably be inferred. However, so far as the sentence part is concerned, in view of the law referred to hereinabove, we are of the considered opinion that the case does not fall within the rarest of rare cases. However, considering the nature of offence, age and relationship of the victim with the appellant and gravity of injuries caused to her, the appellant cannot be awarded a lenient punishment.

A three-Judge Bench of this Court is Swamy Shraddananda (2) v. State of Karnataka, (2008) 13 SCC 767, considering the facts of the case, set aside the sentence of death penalty and awarded the life imprisonment but further explained that in order to serve the ends of justice, the appellant therein would not be released from prison till the end of his life.

Similarly, in Ramraj vs. State of Chhattisgarh, (2010) 1 SCC 573, this Court while setting aside the death sentence made a direction that the appellant therein would serve minimum period of 20 years including remissions earned and would not be released on completion of 14 years’ imprisonment.

Thus, in the facts and circumstances of the case, we set aside the death sentence and award life imprisonment. (Neel Kumar vs. State of Haryana; (2012) 3 SCC (Cri) 271)

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Employees' Provident Funds & Miscellaneous Provisions Act

S. 1(3)(b) and 7-A - Coverage of Act - Act made applicable to petitioner-establishment and direction to deposit the dues - Petitioner running a health care and gymnasium centre document submitted by petitioner shows that they never employed more than 10 employees in establishment - Department could not prove otherwise - Mere presence of more than 20 persons in health club cannot be foundation to say that there were 23 employees in premises - In the circumstances petitioner’s case ought to have been accepted - Burden wrongly shifted in the case - Orders impugned set aside – S. 1(3)(b) cannot be made applicable to the establishment of petitioner

The Department could not prove otherwise. The Department never insisted and/or asked the petitioner to produce any other document. It is not the case of the Department that the petitioner has fabricated or even manipulated the record. Therefore, the petitioner’s case in such circumstances ought to have been accepted. Mere presence of more than 20 persons in the health club cannot be the foundation to say that on that day there were 23 employees present in the premises. The presence of 20 or more persons including the employees is not sufficient requirement. The requirement is that there must be more than 20 employees employed in the particular establishment.

Both the Authorities in the present case have wrongly relied upon the report of the Enforcement Officer by over looking the document placed on record by the petitioner.

Therefore, taking over all view of the matter, the burden in the present case was wrongly shifted and as already observed the opportunity should be given to the petitioner to prove its case by giving clear notice in accordance with law. (Fitness point Health Care Pvt. Ltd.; Nashik (2012 (135) FLR 333) (Bom HC)

Ss. 7-A, 7-1, 7-Q and 14-B – Damages - Imposed by Commissioner -For delayed payment of contributions - After hearing the authorised representative of employer - No appeal filed against the order -Approached straight this Court - Proceeding initiated by APFC not in breach of promise - Besides no one can give an assurance that proceedings for levying damages under section 14-B and ordering interest U/s. 7-Q would not be initiated - Correctness of amounts levied under section 14-B and ordered under section 7-Q not questioned - APFC was not empowered to waive or reduce any part of levied damages - None is empowered to waive or reduce interest payable under section 7-Q

The subsequent proceedings had no connection with the certificate proceedings. Hence it is wrong to say that the APFC initiated the proceedings in breach of his promise. Besides, no-one could give an assurance that proceedings for levying damages under section 14-B and ordering interest under section 7-Q would not be initiated.

They did not dispute the correctness of the amounts mentioned in the notice. Even before the APFC the authorized representative of the employer did not question the correctness of the amounts levied under section 14-B and ordered under section 7-Q.

Closure of the establishment was an irrelevant aspect. The APFC was not empowered to waive or reduce any part of the damages. Only the Central Board, not approached, could consider it. No-one is empowered to waive or reduce interest payable under section 7-Q. (Vidula Chemicals & Manufacturing Industries Ltd. and another Vs. Employees’ Provident Funds Commissioner and others; (2012 (135) FLR 31) (Cal HC)

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Evidence Act

S. 3 - Appreciation of evidence - Minor discrepancy between two witnesses as regards exact time should be ignored on being human

The alleged discrepancy in the prosecution evidence (PW 15 and PW 20) with regard to the availability of the deceased Sekar for recording of his statement at 4-4.30 p.m. of the day of occurrence, as pointed out by the learned counsel for the appellant, in our considered view, does not present any difficulty of resolution. The evidence on record shows that after the two deceased persons and PW 2 and PW 3 were brought to the Government hospital an information was sent from the police out post in the Hospital at Thanjayur to the Necdamangalam police station which was received at about 3 p.m. Thereafter the said information was entered in .the general diary of the police station and placed before PW 20 who came to the hospital and recorded the statement of deceased Sekhar at about 4.30 p.m. Oh the other hand, PW 15, the Judicial Magistrate, who was already in the hospital recording the dying declaration of another person, was informed by the duty medical officer at about 3.30 p.m, to record the dying declaration of deceased Sekhar and PWs 2 and 3. Thereafter, according to PW 15, he went to the ward where the injured were admitted but he was told that the patients have been taken to the operation theatre. He, therefore, went to the operation theatre where he found PWs 2 and 3 in the waiting room. At that time the deceased Sekhar was inside the operation theatre undergoing surgery. The Judicial Magistrate recorded the statements of PWs 2 and 3 and came back later to record the statement (dying declaration) of deceased Sekhar at about 9.30 p.m. There is certainly some amount of overlapping in the time mentioned by the two prosecution witnesses, i.e. PWs 15 and 20. However, reference to such time must be understood having regard to the normal course of human life, namely, that such reference is largely by approximation and not strictly by the hour of the clock. So viewed we do not find any inconsistency in the above part of the prosecution case. (Ponnusamy v. State of Tamil Nadu; 2012 (6) Supreme 699)

S. 3—Cr.P.C., Sec. 155—Defective investigation—Duty of Court—It has to be deeply cautious and has to ensure that determinative process is not sub-served by such defect

Where our criminal justice system provides safeguards of fair trial and innocent till proven guilty to an accused, there it also contemplates that a criminal trial is meant for doing justice to all, the accused, the society and a fair chance to prove to the prosecution. Then alone can law and order be maintained. The Courts do not merely discharge the function to ensure that no innocent man is punished, but also that a guilty man does not escape. Both are public duties of the Judge. During the course of the trial, the learned Presiding Judge is expected to work objectively and in a correct perspective. Where the prosecution attempts to misdirect the trial on the basis of a perfunctory or designedly defective investigation, there the Court is to be deeply cautious and ensure that despite such an attempt, the determinative process is not sub-served. For truly attaining this object of a ‘fair trial’, the Court should leave no stone unturned to do justice and protect the interest of the society as well. (Dayal Singh vs. State of Uttaranchal; 2012 Cr.L.J. 4323 (SC)

S. 3—Eye-witness—Relationship has no ground to disbelieve unless his testimony carries element of unfairness and undue intention of false implication

An eye-witness version cannot be discarded by the Court merely on t he ground that such eye-witness happens to be a relation or friend of the deceased. The concept of interested witness essentially must carry with it the element of unfairness and undue intention to falsely implicate the accused. It is only when these elements are present, and statement of the witness is unworthy of credence that the Court would examine the possibility of discarding such statements. But where the presence of the eye-witnesses is proved to be natural and their statements are nothing but truthful disclosure of actual facts leading to the occurrence and the occurrence itself, it will not be permissible for the Court to discard the statements of such related or friendly witness. (Dayal Singh vs. State of Uttaranchal; 2012 Cr.L.J. 4323 (SC)

S.3—Appreciation of evidence—Menace of witness turning hostile—Erodes criminal judicial system

Witness turning hostile is a major disturbing factor faced by the criminal Court in India. Reasons are many for the witnesses turning hostile, but of late, especially in high profile cases, there is a regularity in the witnesses turning hostile, either due to monetary consideration or by other tempting offers which undermine the entire criminal justice system and people carry the impression that the mighty and powerful can always get away from the clutches of law thereby eroding people’s faith in the system. Courts, however, cannot shut their eyes to the reality. If a witness becomes hostile to subvert the judicial process, the Courts shall not stand as a mute spectator and every effort should be made to bring home the truth. Criminal judicial system cannot be overturned by those gullible witnesses who act under pressure, inducement or intimidation. Further, Section 193 of the IPC imposes punishment for giving false evidence but is seldom invoked. (State Tr. P.S. Lodhi Colony, New Delhi vs. Sanjeev Nanda; 2012 Cr.L.J. 4174 (SC)

S. 3 - Testimony Related eye-witness – Is not to be discarded merely on account of relationship

Where the presence of the eye-witnesses is proved to be natural and their statements are nothing but truthful disclosure of actual facts leading to the occurrence, it will not be permissible for the Court to discard the statement of such related or friendly witnesses. There is no bar in law on examining family members or any other person as witnesses. In fact, in cases involving family members of both sides, it is a member of the family or a friend who comes to rescue the injured. If the statement of witnesses, who are relatives or known to the parties affected is credible, reliable, trustworthy and corroborated by other witnesses, there would hardly be any reason for the Court to reject such evidence merely on the ground that the witness was a family member or an interested witness or a person known to the affected party or friend etc. (Shyam Babu v. State of U. P.; AIR 2012 SC 3311)

S. 3- Injured eye-witness - Testimony of stands on higher pedestal than other witnesses

In the case on hand, Nathu Ram (PW -1) is closely related to all the deceased as he is the son of the deceased Pahunchi Lal and nephew of deceased Lalta Prasad. It is also true that Prayag Singh (PW-3), the injured witness, is the real brother of the deceased Pahunchi Lal and Lalta Prasad. Mukut Singh (PW -6) has also admitted in his cross-examination that he has some land in joint khata with the victims but their testimony cannot be discarded on the ground of relationship alone as they appeared to be honest and truthful witnesses and their testimony has not been impaired in their cross-examination. We have already referred to the lengthy cross-examination of all these persons and nothing has come out to impair their credibility. We have also observed that among these three eye-witnesses, PW-3 is an injured witness and his evidence stands on higher pedestal. There is no reason to either disbelieve his version or his presence at the place of occurrence. On the other hand, we agree with their statement and hold that the High Court was justified on relying upon their evidence. (Shyam Babu v. State of U. P.; AIR 2012 SC 3311)

S. 3 - Hostile witness - Statement that supports prosecution case - Can be relied upon

It was contended that some of the witnesses had turned hostile and have not supported the case of the prosecution. In this regard, reference has been made to PW13 and PW23. PW13 admitted that he was a rickshaw puller of rickshaw No. 4. He also stated that he was not examined by the police. It was at that stage that the learned prosecutor sought permission of the Court to declare him hostile, which leave was granted by the Court. This witness stated that there were 10 rikshaw pullers at Nandan Kanan and he used to park his rikshaw from 7.00 a.m. to 10.00 a.m. at that stand, while in the afternoon, he used to park his rikshaw at the Sodhpur Railway Station. He denied having seen the accused persons loading the gunny bags into the Maruti Van and also receded completely from his statement made under Section 161 of the CrPC. The other witness is PW23 who was a witness to the recovery of the Maruti Van. According to this witness, the Maruti Van was parked in his parking lot. However, on 30th November, 2003 Manik Das had taken out the vehicle from the parking and again returned at mid night. With regard to his signature on the seizure memo which he accepted as Exhibit 13, he took up the plea that he was made to sign blank papers. The mere fact that these two witnesses had turned hostile would not affect the case of the prosecution adversely. Firstly, it is for the reason that the facts that these witnesses were to prove already stand fully proved by other prosecution witnesses and those witnesses have not turned hostile, instead they have fully supported the case of the prosecution. As per the version of the prosecution, PW23 was witness to the recovery of the Maruti Van along with PW24, PW25 and PW26. All those witnesses have proved the said recovery in accordance with law. They have clearly stated that it was upon the statement of Manik Das that the vehicle had been recovered. Other witnesses have proved that the said vehicle was used for carrying the gunny bags containing the mutilated parts of the dead body of the deceased. Firstly, PW13 is a witness who was at the railway station rickshaw stand along with other two witnesses namely PW9 and PW 11 who have fully proved the fact as eye-witnesses to the loading of the gunny bags into the Maruti van. Secondly, even the version given by PW13 and PW23 partially supports the case of the prosecution, though in bits and pieces. For example, PW23 has stated that the driver of the Maruti Van was Manik Das and also that he had taken out the vehicle from the parking lot at about 9.30 p.m. on the day of the incident and had brought it back after mid-night. He also stated that this car was being driven by Manik Das. Similarly, PW13 also admitted that other rickshaws were standing at the stand. This was the place where PW9 and PW 11 had seen the loading of the gunny bags into the Maruti Van. In other words, even the statements of witnesses PW13 and PW23, who had turned hostile, have partially supported the case of the prosecution. It is a settled principle of law that statement of a hostile witness can also be relied upon by the Court to the extent it supports the case of the prosecution. Reference in this regard can be made to the case of Govindaraju alias Govinda v. State by Sriramapuram P.S. & Anr. [(2012) 4 SCC 722]: (AIR 2012 SC 1292) (Shyamal Ghosh v. State of West Bengal; AIR 2012 SC 3539)

S. 3 - Penal Code (45 of 1860), S. 300 - Evidence of witnesses - Contradictions and discrepancies - Murder case - Witnesses illiterate - Variation of 15 to 20 minutes in time of occurrence - Not material contradiction

It was argued that there are certain discrepancies and contradictions in the statement of the prosecution witnesses inasmuch as these witnesses have given different timing as to when they had seen the scuffling and strangulation of the deceased by the accused. It is true that there is some variation in the timing given by PW8, PW17 and PW19. Similarly, there is some variation in the statement of PW7, PW9 and PW 11. Certain variations are also pointed out in the statements of PW2, PW4 and PW6 as to the motive of the accused for commission of the crime. Undoubtedly, some minor discrepancies or variations are traceable in the statements of these witnesses. But what the Court has to see is whether these variations are material and affect the case of the prosecution substantially. Every variation may not be enough to adversely affect the case of the prosecution. The variations pointed out as regards the time of commission of the crime are quite possible in the facts of the present case. Firstly, these witnesses are rickshaw pullers or illiterate or not highly educated persons whose statements had been recorded by the Police. Their statements in the Court were recorded after more than two years from the date of the incident. It will be unreasonable to attach motive to the witnesses or term the variations of 15-20 minutes in the timing of a particular event, as a material contradiction. It probably may not even be expected of these witnesses to state these events with the relevant timing with great exactitude, in view of the attendant circumstances and the manner in which the incident took place. To illustrate the irrelevancy of these so called variations or contradictions, one can deal with the statements of PW2, PW4 and PW6, PW4 and PW6 have stated that the deceased had constructed shops along with his brother for the purpose of letting out and it was thereupon that the accused persons started demanding a sum of Rs.40,OOO- from the deceased and had threatened him of dire consequences, if their demand was not satisfied. PW2 has made a similar statement. However, he has stated that Uttam Das and the accused persons had threatened the deceased that if the said money was not paid, they would not allow the deceased to enjoy and use the said shops built by him. This can hardly be stated to be a contradiction much less a material contradiction. According to the witnesses, two kinds of dire consequences were stated to follow, if the demand for payment of money made by the accused was not satisfied. According to PW4 and PW6, they had threatened to kill the deceased while according to PW2, the accused had threatened that they would not permit the accused to enjoy the said property. Statements of all these witnesses clearly show one motive, i.e., illegal demand of money coupled with the warning of dire consequences to the deceased in case of default. In our view, this is not a contradiction but are statements made bona fide with reference to the conduct of the accused in relation to the property built by the deceased and his brother. It is a settled principle of law that the Court should examine the statement of a witness in its entirety and read the said statement along with the statement of other witnesses in order to arrive at a rational conclusion. No statement of a witness can be read in part and/or in isolation. We are unable to see any material or serious contradiction in the statement of these witnesses which may give any advantage to the accused. (Shyamal Ghosh v. State of West Bengal; AIR 2012 SC 3539)

S. 3 - Delay in examination of witnesses alleged to be due to time spent in arresting absconding accused - And because witnesses were poor who had to move from place to place for earning livelihood - Delay stands explained

The delay in examination of witnesses is a variable factor. It would depend upon a number of circumstances. For example, non-availability of witnesses, the Investigating Officer being pre-occupied in serious matters, the Investigating Officer spending his time in arresting the accused who are absconding, being occupied in other spheres of investigation of the same case which may require his attention urgently and importantly, etc. In the present case, it has come in evidence that the accused persons were absconding and the. Investigating Officer had to make serious effort and even go to various places for arresting the accused, including coming from West-Bengal to Delhi. The Investigating Officer has specifically stated, that too voluntarily, that he had attempted raiding the houses of the accused even after cornering the area, but of no avail. He had ensured that the mutilated body parts of the deceased reached the hospital and also affected recovery of various items at the behest of the arrested accused. Furthermore, the witnesses whose statements were recorded themselves belonged to the poor strata, who must be moving from one place to another to earn their livelihood. The statement of the available witnesses like PW21 PW4, PW6, and the doctor, PW16, another material witness, had been recorded at the earliest. The Investigating Officer recorded the statements of nearly 28 witnesses. Some delay was bound to occur in recording the statements of the witnesses whose names came to light after certain investigation had been carried out by the Investigating Officer. In the present case, the examination of the interested witnesses was inevitable. They were the persons who had; knowledge of the threat that was being extended to the deceased by the accused persons, unless their statements were recorded, the investigating officer could not have-proceeded with the investigation any further particularly keeping the facts of the present case in mind. Merely because three witnesses were related to the deceased, the other witnesses, not similarly placed, would not, attract any suspicion of the court on the credibility and worthiness of their statements. (Shyamal Ghosh v. State of West Bengal; AIR 2012 SC 3539)

S. 24

It is improper to say that the right to be represented by a lawyer and the right against self-incrimination would remain incomplete and unsatisfied unless those rights are read out to the accused. The obligation to provide legal aid to the accused as soon as he is brought before the Magistrate is very much part of our criminal law procedure, aimed at protecting the accused against self-incrimination. But to say that any failure to provide legal aid to the accused at the beginning, or before his confession is recorded under Section 163, Cr. P. C., would inevitably render the trial illegal is stretching the point to unacceptable extremes. The object of the criminal law process is to find out the truth and not to shield the accused from the consequences of his wrongdoing. A defence lawyer has to conduct the trial on the basis of the materials lawfully collected in the course of investigation. The test to judge the constitutional and legal acceptability of a confession recorded under Section 164, Cr. P. C. is not whether the accused would have made the statement had he been sufficiently scared by the lawyer regarding the consequences of the confession. The true test is whether or not the confession is voluntary. If a doubt is created regarding the voluntariness of the confession, notwithstanding the safeguards stipulated in S. 164 it has to be trashed; but if a confession is established as voluntary it must be taken into account, not only constitutionally and legally but also morally.

Every accused unrepresented by a lawyer has to be provided a lawyer at the commencement of the trial, engaged to represent him during the entire course of the trial. Even if the accused does not ask of a lawyer or he remains silent, it is the Constitutional duty of the Court to provide him with a lawyer before commencing the trial. Unless the accused voluntarily makes an informed decision and tells the Court, in clear and unambiguous words, that he does not want the assistance of any lawyer and would rather defend himself personally, the obligation to provide him with a lawyer at the commencement of the trial is absolute, and failure to do so would vitiate the trial and the resultant conviction and sentence, if any, given to the accused. But the failure to provide a lawyer to the accused at the pre-trial stage may not have the same consequence of vitiating the trial. It may have other consequences like making the delinquent magistrate liable to disciplinary proceedings, or giving the accused a right to claim compensation against the State for failing ·to provide him legal aid. But it would not vitiate the trial unless it is shown that failure to provide legal assistance at the pre-trial. That would have to be judged on the facts of each case. (Mohammed Ajmal Mohammad Amir Kasab v. State of Maharashtra; AIR 2012 SC 3565)

S. 24—Extra-judicial confession— Reliability of

In this case, Hon’ble Court has observed that it can be relied upon when it is true, voluntary and made in fit state of mind. (Suresh Vadnur vs. State of Goa; 2012 Cr.L.J. (NOC) 484 (Bom)

S. 32—Dying declaration—Court attached intrinsic value of truthfulness to such statement—If made voluntarily can form basis of conviction

The ‘dying declaration’ is the last statement made by a person at a stage when he in serious apprehension of his death and expects no chances of his survival. At such time, it is expected that a person will speak the truth and only the truth. Normally in such situations the courts attach the intrinsic value of truthfulness to such statement. Once such statement has been made voluntarily, it is reliable and is not an attempt by the deceased to cover up the truth or falsely implicate a person, then the courts can safely rely on such dying declaration and it can form the basis of conviction. Moreso, where the version given by the deceased as dying declaration is supported and corroborated by other prosecution evidence, there is no reason for the courts to doubt the truthfulness of such dying declaration. (Sudhakar vs. State of M.P.; 2012 Cr.L.J. 3985 (SC)

S. 32—Multiple contradictory dying declarations—Which to be relied?

In cases involving multiple dying declarations made by the deceased, for determining which of the various dying declarations should be believed by the Court, the test of common prudence would be to first examine which of the dying declarations is corroborated by other prosecution evidence. Further, the attendant circumstances, the condition of the deceased at the relevant time, the medical evidence, the voluntariness and genuineness of the statement made by the deceased, physical and mental fitness of the deceased and possibility of the deceased being tutored are some of the factors which would guide the exercise of judicial discretion by the Court in such matters. Each dying declaration has to be considered independently on its own merit so as to appreciate its evidentiary value and one cannot be rejected because of the contents of the other. In case where there is more than one dying declaration, it is the duty of the Court to consider each one of them in its correct perspective and satisfy itself which one of them reflects the true state of affairs. (Sudhakar vs. State of M.P.; 2012 Cr.L.J. 3985 (SC)

S. 32(1) – Dying declaration – Dying declaration recorded by PSI – Reliability of

In the present case, Doctor examined patient and permitted PSI to record statement of injured – Doctor categorically stated that statement of injured victim was recorded by PSI in his presence and after the statement was recorded, also certified that patient was conscious enough to make statement. So, there is no reason to discard dying declaration. Hence, conviction confirmed. (Narayan Manikrao Salgar v. State of Maharashtra; (2012) 8 SCC 622)

S. 45—Expert Evidence—Reliability—Courts look upon expert evidence with greater sense of acceptability but are not absolutely guided by such evidence

The Courts, normally, look at expert evidence with a greater sense of acceptability, but it is equally true that the Courts are not absolutely guided by the report of the experts, especially if such reports are perfunctory, unsustainable and are the result of a deliberate attempt to misdirect the prosecution. Where the eye-witness account is found credible and trustworthy, medical opinion pointing to alternative possibilities may not be accepted as conclusive. The expert witness is expected to put before the Court all materials inclusive of the date which induced him to come to the conclusion and enlighten the Court on the technical aspect of the case by examining the terms of science, so that the Court, although not an expert, may form its own judgment on those materials after giving due regard to the expert’s opinion, because once the expert opinion is accepted, it is not the opinion of the medical officer but that of the Court. The skill and experience of an expert is the ethos of his opinion, which itself should be reasoned and convincing. Not to say that no other view would be possible, but if the view of the expert has to find due weightage in the mind of the Court, it has to be well authored and convincing.

The assistance and value of expert opinion is indisputable, but there can be reports which are, ex facie, incorrect or deliberately so distorted as to render the entire prosecution case unbelievable. But if eye-witnesses and other prosecution evidence are trustworthy, have credence and are consistent with the eye version given by the eye-witnesses and other prosecution evidence are trustworthy, have credence and are consistent with the eye version given by the eye-witnesses, the Court will be within its jurisdiction to discard the expert opinion. An expert report, duly proved, has its evidentiary value but such appreciation has to be within the limitations prescribed and with careful examination by the Court. A complete contradiction or inconsistency between the medical evidence and the ocular evidence on the one hand and the statement of the prosecution witnesses between themselves on the other, may result in seriously denting the case of the prosecution in its entirety but no otherwise. (Dayal Singh vs. State of Uttaranchal; 2012 Cr.L.J. 4323 (SC)

S. 45—Expert evidence—Breach of professional duties—Directions issued for courts

Supreme Court directed Courts to record specific finding against Investigating Officers indulging in deliberate dereliction of duty and conducting of designedly defective investigation and direct disciplinary action them. Similar course directed to be adopted against expert witnesses indulging in acts of omission or commission in breach of professional duties and even against prosecution witnesses. (Dayal Singh vs. State of Uttaranchal; 2012 Cr.L.J. 4323 (SC)

S. 145 – Evidence – FIR – Appreciation of – Once police submitted charge-sheet U/s. 304 – Attain argument by placing reliance on FIR is not sustainable

There appears to be no doubt that originally, the first information report was lodged under section 302 read with section 392, Indian Penal Code. However, later on, the police submitted charge-sheet under section 304-A, Indian Penal Code in the case Crime No. 361 of 1995. It is settled law that contents of F.I.R. are not substantive evidence but only corroborative evidence and may be used during trial. Once the police submitted charge-sheet under section 304-A, Indian Penal Code (accidental death), then argument by placing reliance on the F.I.R. seems to be not sustainable. Tribunal has rightly held that F.I.R. is not substantive evidence and when the police submitted charge-sheet under section 304-A, Indian Penal Code, then the F.I.R. loses its sanctity with regard to its contents except to use it for the purpose of contradiction under section 145 of the Evidence Act. (New India Assurance Co. Ltd. Vs. Ranni and others; 2012 ACJ 2624)

S. 165—Recording of voice—Following closure of evidence—Legality

The simple prayer by way of filing the objection by the defence side is that in case of non-recording of voice of the prosecutrix, the impugned C.D. be accepted as defence evidence, the same cannot be allowed to be done by the trial Court. There are certain rules which are required for proving any document prepared by Electronic Media and certain rules are provided there for the accused persons who will have to prove the impugned C.D. as observed and then only the trial Court at the stage of the judgment may draw its own conclusion as the facts and circumstances of the case warrant.

In this case, according to the learned counsel for the parties, the impugned C.D. contains the conversation allegedly held between the prosecutrix and the accused which has been prepared from some mobile set.

So far as contention of the learned counsel for the revisionist regarding adverse inference against the prosecutrix in case of failure of recording of her voice due to her unwillingness is concerned, it is again open for consideration of the trial Court after hearing the arguments at the stage of the judgment. The prosecution evidence has already been closed and the case is at the stage of defence evidence, the impugned order is illegal and not sustainable in law as the same is beyond the provisions of the Code of Criminal Procedure, 1872. (Smt. Rukumani Devi vs. State of U.P.; 2012 (5) ALJ 488)

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Forest Act

S. 3 (as applicable in State of U.P.)—Ambit & Scope—Forest/waste land—Power of State Govt. to declare forest/waste land as reserve forest—Is absolute

The State Government has been granted power to constitute a reserved forest in respect of three categories of land, if it is the property of the State Government or the Government has proprietary rights over it, (a) forest land (b) waste land and (c) any other land (not being land for the time being comprised in any holding or in any village abadi). Right of the State Government to constitute reserved forest in respect of forest and waste land is not circumscribed by the exclusion clause as applicable to other lands i.e. not being land for the time being comprised in any holding or in any village Abadi.

In respect of forest land and waste land, which is the property of the State Government or other which it has proprietary rights, the power of the State to constitute a reserved forest is absolute. In respect of forest and waste land only two facts are to be satisfied for constituting a reserved forest i.e. (a) the land is forest or waste land and (b) it is the property of the State or the State has proprietary right over the same.

In respect of instant forest/waste land, one ‘V’ was merely a Sirdar and subsequently with the grant of sanad, a bhumidhar in respect of land, which has been found to be forest and waste land of which the State Government, was the proprietor in view of application of Act of 1950 to the area. He or for that purpose the society cannot contend that the State Government has no power to declare the forest land and waste land as reserved forest under Section 4 of Act, 1927. Bhumidhari rights are subordinate to the proprietary rights of the State Government. In view of provisions of Section 3 of Act, 1927, the power of the State Government to declare the forest and waste lands of which it has the proprietary as reserved forest is not diluted in any manner, merely because ‘V’ is held to be the Sirdar and thereafter bhumidhar. (State of U.P. vs. IV Additional District Judge, Mirzapur; 2012 (5) ALJ 659)

Ss. 3, 4—Power of State Govt. to declare reserve forest—Is not lost because of ceiling proceedings

Ceiling limits are determined with regard to the land held by a recorded tenure-holder. Such determination of the ceiling limits does not divest the State Govt. of proprietary rights over the land, which is forest land and waste land nor its power to constitute the forest land and waste land as reserved forest is lost because of such ceiling proceedings. Both acts operate in different field. Whatever may have been the decision in the proceedings under Act, 1960, the exercise of powers under Section 4 of Act, 1927 by the State will not be diluted or adversely affected. (State of U.P. vs. IV Additional District Judge, Mirzapur; 2012 (5) ALJ 659)

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Hindu Marriage Act

Ss. 13(1)(1-a)—Cruelty and mental cruelty—Meaning and proof of

The expression “cruelty” has an inseparable nexus with human conduct or human behavior. It is always dependent upon the social strata or the milieu to which the parties belong, their ways of life, relationship, temperaments and emotions that have been conditioned by their social status.

In Parveen Mehta vs. Inderjit Mehta, (2002) 5 SCC 706, it has been held that mental cruelty is a state of mind and feeling with one of the spouses due to behavior or behavioural patter by the other. Mental cruelty cannot be established by direct evidence and it is necessarily a matter of inference to be drawn from the facts and circumstances of the case. “A feeling of anguish, disappointment and frustration in one spouse caused by the conduct of the other can only be appreciated on assessing the attending facts and circumstances in which the two partners of matrimonial life have been living.” The facts and circumstances are to be assessed emerging from the evidence on record and thereafter, a fair inference has to be drawn whether the petitioner in the divorce petition has been subjected to mental cruelty due to the conduct of the other. (Vishwanath Agarwal vs. Sarla Vishwanath Agarwal; (2012) 3 SCC (Cri) 347)

Ss. 25—Permanent Alimony—Grant of—Factors to be considered

Permanent alimony is to be granted taking into consideration the social status, the conduct of the parties, the way of living of the spouse and such other ancillary aspects. During the course of hearing of the matter, we have heard the learned counsel for the parties on this aspect. After taking instructions from the respective parties, they have addressed us. The learned Senior Counsel for the appellant has submitted that 21.2.2012, an amount of Rs. 17,60,000 has been paid towards maintenance to the wife as directed by the courts below and hence, that should be deducted from the amount to be fixed. He has further submitted that the permanent alimony should be fixed at Rs. 25 lakhs. The learned counsel for the respondent, while insisting for affirmance of the decisions of the High Court as well as by the courts below, has submitted that the amount that has already been paid should not be taken into consideration as the same has been paid within a span of number of years and the deduction would affect the future sustenance. He has emphasized on the income of the husband, the progress in the business, the inflation in the cost of living and the way of life the respondent is expected to lead. He has also canvassed that the age factor and the medical aid and assistance that are likely to be needed should be considered and the permanent alimony should be fixed at Rs. 75 lakhs.

Court has considered opinion that the amount that has already been paid to the respondent wife towards alimony is to be ignored as the same had been paid by virtue of the interim orders passed by the courts. It is not expected that the respondent wife has sustained herself without spending the said money. Keeping in view the totality of the circumstances and the social strata from which the parties come from and regard being had to the business prospects of the appellant, permanent alimony of Rs. 50 lakhs (rupees fifty lakhs only) should be fixed and, accordingly, we so do. The said amount of Rs. 50 lakhs shall be deposited by way of bank draft before the trial court within the period of four months and the same shall be handed over to the respondent wife on proper identification. (Vishwanath Agrawal vs. Sarla Vishwanath Agrawal; (2012) 3 SCC (Cri) 347)

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Hindu Minority and Guardianship Act

Ss. 6 & 13 - Minor Children, custody of - Held, it is the welfare and interest of child and not the rights of the parents which is the determining factor for deciding the question of custody

In the present case irrespective of the question whether the abandonment of visitation rights by the wife was occasioned by the fraud or deceit practiced on her, as subsequently claimed, an attempt was made by this Court, even by means of a personal interaction with the children, to bring the issue with regard to custody and visitation rights to a satisfactory conclusion. From the materials on record, it is possible to conclude that the children, one of whom is on the verge of attaining majority, do conclude that the children, one of whom is on the verge of attaining majority, do not want to go with their mother,. Both appear to be happy in the company of their father who also appears to be in a position to look after them; provide them with adequate educational facilities and also to maintain them in a proper and congenial manner. The children having expressed their reluctance to go with the mother, even for a short duration of time, we are left with no option but to hold that any visitation right to the mother would be adverse to the interest of the children. Besides, in view of the reluctance of the children to even meet their mother, leave alone spending time with her, we do not see how such an arrangement, i.e., visitation can be made possible by an order of the court.

Taking into account all the aforesaid facts, we dismiss these appeals, affirm the impugned orders passed by the High Court of Delhi and deny any visitation rights to the petitioner and further direct that the children would continue to remain in the custody of their father until they attain the age of majority. (Gaytri Bajaj Vs. Jiten Bhalla; (2012 (30) LCD 2244) (SC)

S. 8(4) – Sale of property of minor - Permission for

In view of sub-section (4) of Section 8 of the Act (1956) it was incumbent upon the trial Court to find out and make enquiry in depth how the sell of the land standing in the name of the minor is going to be benefited or advantageous to the child in future. The very fact that the land standing in the name of the minor was purchased at Rs. 4.00 lacs and its approximate price was shown in the application as Rs. 2.00 lacs is indicative of the fact that the applicant has not approached the Court with clean hands. That apart a formal declaration was sought by the applicant in the said application to declare him as natural guardian. Therefore, it follows from the said prayer that application filed by him for sell of the land standing in the name of minor was premature. (Ku. Kamna Satyanarayan Handibag v. Satyanarayan Chatrabhij Handibagh & Anr.; AIR 2012 Bom 163)

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House & Rent

Landlord choice about shop - Consideration of - Same has to be honoured with landlord being his privilege having priority over tenant’s suggestion

So far as the question of choice about shop is concerned, obviously the same has to be honoured with landlord being his privilege having priority over tenant’s suggestion. (Mohamad Islam vs. Additional District Judge, Jhansi; 2012(3) ARC 517 (All HC)

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Indian Penal Code

S. 34 – Common intention is pre-requisite - S. 34 cannot be invoked in absence of common intention

Court has already referred to the evidence of prosecution witnesses. Nobody has implicated the present appellant except the statements made by PW-5 and PW-7 (the approver). Court are satisfied that absolutely there is not material from the side of the prosecution to show that the present appellant had any common intention to eliminate the deceased, who was physically disabled. The only adverse thing against the present appellant is that he used to associate with A-1 for smoking Ganja. In the absence of common intention, court is of the view that convicting the appellant with the aid of Section 34 IPC cannot be sustained. (Suresh Sakharam Nangare v. State of Maharashtra; 2012 Supreme 134)

S. 63—Cr.P.C., Sections 357(3), 421—Object of—Order to pay compensation to victim in case of default, court can award sentence to ensure its observance

The idea behind directing the accused to pay compensation to the complainant is to give him immediate relief so as to alleviate his grievance. In terms of Section 357(3) of Criminal P.C. compensation is awarded for the loss or injury suffered by the person due to the act of the accused for which he is sentenced. If merely an order, directing compensation, is passed, it would be totally ineffective. It could be an order without any deterrence or apprehension of immediate adverse consequences in case of its non-observance. The whole purpose of giving relief to the complainant u/s. 357(3) of Code would be frustrated if he is driven to take recourse to S. 421 of the Code. Order u/s. 357(3) must have potentiality to secure its observance. Deterrence can only be infused into the order by providing for a default sentence. If Section 421 of the Code puts compensation ordered to be paid by the Court on par with fine so far as mode of recovery is concerned, then there is no reason why the Court cannot impose a sentence in default of payment of compensation as it can be done in case of default in payment of fine u/s. 64 of the IPC. (R. Mohan vs. A.K. Vijaya Kumar; 2012 Cr.L.J. 3953 (SC)

Ss. 107, 306—Abetment by instigation for act to constitute instigation—It must be with intention—Words uttered in anger without any intention do not constitute instigation

The offence of abetment by instigation depends upon the intention of the person who abets and not upon the act which is done by the person who has abetted. The abetment may be by instigation, conspiracy or intentional aid as provided u/s. 107, IPC. However, the words uttered in a fit of anger or omission without any intention cannot be termed as instigations. Instigation has to be gathered from the circumstances of a particular case. No straight-jacket formula can be laid down to find out as to whether in a particular case there has been instigation which force the person to commit suicide. In a particular case, there may not be direct evidence in regard to instigation which may have direct nexus to suicide. Therefore, in such a case, an inference has to be drawn from the circumstances and it is to be determined whether circumstances has been such which in fact had created the situation that a person felt totally frustrated and committed suicide. (Praveen Pradhan vs. State of Uttaranchal and Anr.; 2012 Cr.L.J. 4925 (SC)

Ss. 121, 121A - Waging of war - What amounts to - Terrorist act - Need not always amount to offence of waging war

In "waging war", the intent of the foreign enemy is not only to disturb public peace or law and order or to kill many people. A foreign enemy strikes at the sovereignty of the State, and his conspiracy and actions are motivated by that animus a "terrorist act" and an act of "waging war against the Government of India" may have some overlapping features, but a terrorist act may not always be an act of waging war against the Government of India, and vice versa as such it cannot be said that if an offence comes within the definition of "terrorist act" under Section 15 of the Unlawful Activities (Prevention) Act, it would automatically fall out of Section 121 of the Penal Code. (Mohammed Ajmal Mohammad Amir Kasab v. State of Maharashtra; AIR 2012 SC 3565)

S. 149—Unlawful assembly—Every member of assembly is vicariously liable—Whether any member has caused injury or not—Not relevant

Section 149 IPC creates a constructive or vicarious liability of the members of unlawful assembly for the unlawful acts committed pursuant to the common object by any other member of that assembly. This principle ropes in every member of the assembly to be guilty of an offence where the offence is committed by any member of that assembly in prosecution of common object of that assembly, or such members or assembly knew that offence is likely to be committed in prosecution of that object. The factum of causing injury or not causing injury would not be relevant, where accused is sought to be roped in with the aid of Section 149, IPC. It is now well settled law that the provisions of Sec. 149, IPC will be attracted whenever any offence committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or when the members of that assembly knew that offence is likely to be committed in prosecution of that object, so that every person, who, at the time of committing of that offence is a member, will be also vicariously held liable and guilty of that offence. Section 149 IPC creates a constructive or vicarious liability of the members of the unlawful assembly for the unlawful acts committed pursuant to the common object by any other member of that assembly. This principle ropes in every member of the assembly to be guilty of an offence where that offence is committed by any member of that assembly in prosecution of common object of that assembly, or such members or assembly knew that offence is likely to be committed in prosecution of that object. The factum of causing injury or not causing injury would not be relevant, where accused is sought to be roped in with the aid of Section 149 IPC. The relevant question to be examined by the court is whether the accused was a member of an unlawful assembly and not whether he actually took active part in the crime or not.

In our opinion, the prosecution has clearly established with ample evidence that accused-A13 and A14 had murdered the deceased. We are in agreement with the view taken by the Trial Court and High Court. Therefore, the High Court is right in dismissing the appeal against the order of conviction passed by the learned Sessions Judge.

We are also of the opinion that accused- A1, A15, A16 and A21 were members of the same assembly which has caused the murder of the deceased, in terms of Section 149 IPC, as they had dragged the deceased after first assault and contributed in preventing the deceased from escaping the assault of A13 and A14. Therefore, accused - A1, A15, A16 and A21 are guilty of murder along with A13 and A14 u/s. 302 read with Section 149 IPC. (Krishnappa vs. State of Karnataka; 2012 Cr.L.J. 4347 (SC)

S. 302 r/w section 25, Arms Act, 1959 – Conviction and sentence based on reliable evidence pointing to guilt of appellant beyond doubt

Court have perused the judgment and order passed by the High court as also the Trial Court. Court are convinced that the reasoning and the conclusion reached by both the Trial court and the High Court does not suffer from any legal infirmity and therefore, the interference with the impugned judgment is not called for. (Pappu @ Ram Narayan v. State of Uttar Pradesh; 2012 (7) Supreme 320)

Ss. 304-A and 299—Death by negligent act and culpable homicide—Difference

Section 299 of the IPC defines culpable homicide as an act of causing death (i) with the intention of causing death; (ii) with the intention of causing some bodily injury as is likely to cause death; and (iii) with the knowledge that such act is likely to cause death. The first and second clauses of the section refer to intention apart from knowledge and the third clause refers to knowledge apart from intention. “Intention” and “knowledge” postulate the xistence of positive mental attitude. The expression ‘knowledge’ referred to in Section 299 and Section 300 is the personal knowledge of the person who does the act. To make out an offence punishable under Section 304 (II) of the IPC, the prosecution has to prove the death of the person in question and such death was caused by the act of the accused and that he knew such act of his is likely to cause death. Section 304-A carves out a specific offence where death is caused by doing a rash or negligent act and that act does not amount to culpable homicide not amounting to murder under Section 299 or murder under Section 300. The following requirements must be satisfied before applying S. 304-A. The following requirements must be satisfied before applying S. 304-A/

(i) Death must have been caused by the accused;

(ii) Death caused by rash or negligent act;

(iii) Rash and negligent act must not amount to culpable homicide.

(State Tr. P.S. Lodhi Colony, New Delhi vs. Sanjeev Nanda; 2012 Cr.L.J. 4174 (SC)

S. 304-A—Causing death by rash and negligent driving—Proof

The submission that PW5 has stated the bus being driven at the slow speed was dealt with by the ASJ.

The scooterist was moving on a straight road and was hit from behind by right of the bus making it fall would show that the bus was not being driven with due care and caution, but was being driven recklessly and negligently. It was being driven in a wanton fashion without any regard to the safety of the people travelling in front of it. Though, there may not be the intention of the petitioner to cause an accident, but the way a heavy vehicle was being driven on the busy road was itself indicative of his negligence and indifference to the consequence. From all this discussion, the irresistible conclusion comes out to be that offending vehicle was being driven by the petitioner in a rash and negligent manner so as to danger the human life.

Keeping in view the facts and circumstances of the case and the above pronouncements, I am of the view that the trial court and the Appellate Court have rightly sentenced the petitioner or imprisonment and their Orders require no interference. (Meghna Singh vs. State; 2012 Cr.L.J. 4930 (Del)

S. 304 –A – Death due to rash and negligent driving – Sentence – Demand of imposition of adequate sentence - Award of compensation under Motor Vehicles Act or under Section 357 of CrPC - Cannot be substitute for sentence in all cases

The concern of the Courts in motor accident cases has been to impose adequate sentence for the offence punishable under S. 304-A of the IPC. It is worthy to note that in certain circumstances, the mitigating factors have been taken into consideration but the said aspect is dependent on the .facts of each case. As the trend of authorities would show, the proficiency in professional driving is emphasized upon and deviation there from that result in rash and negligent driving and causes accident has been condemned. In a motor accident, when a number of people sustain injuries and a death occurs, it creates a stir in the society; sense of fear prevails all around. The negligence of one shatters the tranquillity of the collective. When such an accident occurs, it has the potentiality of making victims in many a layer and creating a concavity in the social fabric. The agony and anguish of the affected persons, both direct and vicarious, can have nightmarish effect. It has its impact on the society and the impact is felt more when accidents take place quite often because of rash driving by drunken, negligent or, for that matter, adventurous drivers who have, in a way, no concern for others. Grant of compensation under the provisions of the Motor Vehicles Act, 1988 is in a different sphere altogether. Grant of compensation under Section 357(3) with a direction that the same should be paid to the person who has suffered any loss or injury by reason of the act for which the accused has been sentenced has a different contour and the same is not to be regarded as a substitute in all circumstances for adequate sentence.

An appropriate punishment works as an eye-opener for the persons who are not careful while driving vehicles on the road and exhibit a careless attitude possibly harbouring the notion that they would be shown indulgence or lives of others are like "flies to the wanton boys." They totally forget that the lives of many are in their hands, and the sublimity of safety of a human being is given an indecent burial by their rash and negligent. (Guru Basavaraj v. State of Karnataka; 2012 AIR SCW 4822)

Ss. 304-A and 279 – Adequacy of sentence in motor accident arising out of rash and negligence driving – Need for

In State of Karnataka v. Krishna; (1987) 1 SCC 538 : 1987 SCC (Cri) 198, while dealing with the concept of adequate punishment in relation to an offence under Section 304-A IPC, the Court stated that:

“7......Considerations of undue sympathy in such cases will not only lead to miscarriage of justice but will also undermine the confidence of the public in the efficacy of the criminal [justice dispensation] system. It need be hardly pointed out that the imposition of a sentence of fine of Rs. 250 on the driver of a motor vehicle for an offence under Section 304-A IPC and that too without any extenuating or mitigating circumstance is bound to shock the conscience of anyone and will unmistakably leave the impression that the trial was a mockery of justice.”

From the aforesaid authorities, it is luminous that the Court has expressed its concern on imposition of adequate sentence in respect of commission of offences regard being had to the nature of the offence and demand of the conscience of the society. That apart, the concern has been to impose adequate sentence, for the offence punishable under Section 304A IPC. It is worthy to note that in certain circumstances, the mitigating factors have been taken into consideration but the said aspect is dependent on the facts of each case. As the trend of authorities would show, the proficiency in professional driving is emphasised upon and deviation there from that results in rash and negligent driving and causes accident has been condemned. In a motor accident, when a number of people sustain injuries and a death occurs, it creates a stir in the society; sense of fear prevails all around. The negligence of one shatters the tranquillity of the collective. When such an accident occurs, it has the effect potentiality of making victims in many a layer and creating a concavity in the social fabric. The agony and anguish of the affected persons, both direct and vicarious, can have nightmarish effect. It has its impact on the society and the impact is felt more when accidents take place quite often because of rash driving by drunken, negligent or, for that matter, adventurous drivers who have, in a way, no concern for others. Be it noted, grant of compensation under the provisions of the Motor Vehicles Act, 1988 is in a different sphere altogether. Grant of compensation under Section 357(3) Cr.P.C. with a direction that the same should be paid to the person who has suffered any loss or injury by reason of the act for which the accused has been sentenced has a different contour and the same is not to be regarded as a substitute in all circumstances for adequate sentence. (Guru Basavaraj alias Benne Settappa v. State of Karnataka; (2012) 8 SCC 734)

S. 304-A – Rash and negligent driving – Sentence - Country registering maximum number deaths in road accidents - Thus law makers should revisit sentencing policy reflected in S. 304A

World Health Organization in the Global status Report on Road Safety has pointed out that speeding and drunk driving are the major contributing factors in road accidents. According to National Crime Records Bureau (NCRB), the total number of deaths due to road accidents in India every year is now over 1,35,000 NCRB Report also states drunken driving as a major factor for road accidents. Our country has a dubious distinction of registering maximum number of deaths in road accidents. It is high time that law makers revisit the sentencing policy reflected in S. 304A IPC. (Alister Anthony Pareira v. State of Maharashtra; AIR 2012 SC 3802)

S. 304-B – Dowry – Death - Proof

Deceased Suman was married to accused- respondent, Raghvendra Tiwari and disputably she was at her matrimonial house on 23-12-2007 then she was found having burnt herself after pouring kerosene oil inside the room. This appears narrated by the Naib Tehsildar, PW-4 who scaled the wall of the house and went inside the room to retrieve the dead body. He found the doors of the house bolted form inside. The allegation was that after about two years of the marriage, Suman was complained to there parents and other family members that the accused persons were pestering her for an Alto car as dowry. The learned trial Judge has analysed and discussed the evidence of the two witnesses and affect thereof in para 29 of the judgment and we find from that the letters of anything out of the call details which point out that Suman had really complained about ill –treatment or torture on account of demand of dowry.

Likewise, we find that there is no evidence indicating that she was ill-treated or tortured for demand of any dowry prior to her death. Thus we find that the most important ingredients of offence under section 304-B were not established on facts of the case defence suggestion that in fact Suman was in love with Pankaj, but the lady was married to Raghvendra Tiwari and it was found from one particular document that he had forbidden her husband from touching her also. We have referred to the evidence of Naib Tehsildar, PW- 4 and that evidence has been discussed in detail in paragraph 37 of the judgment and this is a clear pointer as to how the deceased had killed herself on being married to a person whom she did not like. (State of U.P. v. Raghvendra Tiwari; 2012 (6) ALJ 364)

Ss. 306 & 107 – Abatement of suicide – Factors to be considered

A plain and simple reading of the suicide note makes it crystal clear that the appellant had not just humiliated and insulted the deceased on one occasion. In fact, it is evidence that the appellant perpetually humiliated, exploited and demoralised the deceased, which hurt his self-respect tremendously. The words used are, to the effect that the appellant always hurts the self-respect of the deceased and he was always scolding him. The appellant always made attempts to force him to resign. The statements recorded by the police under Section 161 Cr.P.C., particularly, one made by KS, widow of the deceased and also those of various other family members, corroborate the version of events, as given in his suicide note. The offence of abetment by instigation depends upon the intention of the person who abets and not upon the act which is done by the person who has abetted. The abetment may be by instigation, conspiracy or intentional aid as provided under Section 107 IPC. However, the words uttered in a fit of anger or omission without any intention cannot be termed as instigation.

The instigation has to be gathered from the circumstances of a particular case. No straitjacket formula can be laid down to find out as to whether in a particular case there has been instigation which forced the person to commit suicide. In a particular case, there may not be direct evidence in regard to instigation which may have direct nexus to suicide. Therefore, in such a case, an inference has to be drawn from the circumstances and it is to be determined whether circumstances had been such which in fact had created the situation that a person felt totally frustrated and committed suicide. (Praveen Pradhan v. State of Uttaranchal and another; (2012) 9 SCC 734)

S. 337 – Causing hurt - Rush and negligent driving – Victims suffered simple hurt, received various injuries - Conviction of accused for offence punishable under S. 337 – Not interference

In as charge under Section 337 IPC is concerned, it is amply established form the prosecution evidence that PW-5, PW-7, PW-9 and PW-10 received various injuries; they suffered simple hurt. The trial court as well as the High Court was justified in conviction the Appellant for the offence punishable under Section 337 IPC as well. (Alister Anthony Pareira v. State of Maharashtra; AIR 2012 SC 3802)

S. 354 - IPC, S. 53—Penology—Sentencing policy—Sentence has to be proportional to gravity of offence and must afford sufficient deterrence and protect public from crimes

Generally, the policy which the Court adopts while awarding sentence is that the punishment must be appropriate and proportional to the gravity of the offence committed law demands that the offender should be adequately punished for the crime, so that it can deter the offender and other persons from committing similar offences. Nature and circumstances of the offence; the need for the sentence imposed to reflect the seriousness of the offence; to afford adequate deterrence to the conduct and to protect the public from such crime are certain factors to be considered while imposing the sentence. The imposition of sentence without considering its effect on the social order in many cases is in reality a futile exercise.

Court has further held that convicts in various countries, now, voluntarily come forward to serve the community, especially in crimes relating to motor vehicles. Graver the crime greater the sentence. But, serving the society actually is not a punishment in the real sense where the convicts pay back to the community which he owes. Conduct of the convicts will not only be appreciated by the community, it will also give a lot of solace to him, especially in a case where because of one’s action and inaction, human lives have been lost. (State Tr. P.S. Lodhi Colony, New Delhi vs. Sanjeev Nanda; 2012 Cr.L.J. 4174 (SC)

S. 376 & 376 r/w S. 120-B—Rape—Reduction in sentence—Reduction of sentence to less than the prescribed minimum, without recording “adequate and special reasons”—Impermissibility of

The statutory requirement for awarding punishment of less than seven years is to record adequate and special reasons in writing. The dictionary meanings of the word “adequate” are commensurate in fitness, sufficient, suitable, equal in magnitude and extent, and fully. “Special reasons” means exceptional; particular; peculiar; different from others; designed for a particular purpose, occasion, or person; limited in range; confined to a definite field of action. Thus, in a case like the instant one, in order to impose the punishment lesser than prescribed in the statute, there must be exceptional reasons relating to the crime as well as to the criminal. Socio-economic status, religion, race, caste or creed of the accused or the victim are irrelevant considerations in sentencing policy.

Awarding punishment lesser than the minimum prescribed under Section 376 IPC is an exception to the general rule. Exception clause is to be invoked only in exceptional circumstances where the conditions incorporated in the exception clause itself exist. It is a settled legal proposition that exception clause is always required to be strictly interpreted even if there is a hardship to any individual. Exception is provided with the object of taking it out of the scope of the basic law and what is included in it and what legislature desired to be excluded. The natural presumption in law is that for the proviso, the enacting part of the section would have included the subject-matter of the proviso; the enacting part should be generally given such a construction which would make the exceptions carved out by the proviso necessary and a construction which would make the exception unnecessary and redundant should be avoided. Proviso is used to remove special cases from the general enactment and provide for them separately. Proviso may change the very concept of the intendment of the enactment by insisting on certain mandatory conditions to be fulfilled in order to make the enactment workable. (State of Rajasthan vs. Vinod Kumar; (2012) 3 SCC (Cri) 299)

S. 376 – Minimum sentence should be given in exceptional cases and sympathy has no place in rape cases

Learned counsel for the accused has taken us through the reasons assigned by the High Court. The case on hand, in our considered opinion, does not fall within the category of exceptional cases and as we have already observed, we are not convinced with the reasons assigned by the High Court for reducing the sentence. In this view of the matter, while allowing this appeal, we set aside that portion of the order passed by the High Court reducing the period of sentence from 7 years to the period already undergone by the accused. We now direct that the accused be convicted and sentenced for a period of 7 years. (Pushpanjali Sahu v. State of Orissa & Anr.; 2012 (6) Supreme 681)

S. 376 – Rape – Nature of – Rape is a crime against basic human rights

In this case Court has observed that Sexual violence is not only an unlawful invasion of the right of privacy and sanctity of a woman but also a serious blow to her honour. It leaves a traumatic and humiliating impression on her conscience- offending her self-esteem and dignity. This Court in State of H.P. v. Shree Kant Shekari,6 (2004) 8 SCC 153 has viewed rape as not only a crime against the person of a woman, but a crime against the entire society. It indelibly leaves a scar on the most cherished possession of a woman i.e. her dignity, honour, reputation and not the least her chastity. It destroys, as noted by this Court in Bodhisattwa Gautam v. Subhra Chakraborty. (1996) 1 SCC 490 the entire psychology of a woman and pushes her into deep emotional crisis. It is a crime against basic human rights, and is also violative of the victim's most cherished of the fundamental rights, namely, the right to life contained in Article 21 of the Constitution. The courts are, therefore, expected to deal with cases of sexual crime against women with utmost sensitivity. Such cases need to be dealt with sternly and severely. (Pushpanjali Sahu v. State of Orissa & Anr.; 2012 (6) Supreme 681)

S. 409—Criminal breach of trust by public servant - Essential ingredients

In order to sustain conviction u/s. 409, IPC, two ingredients are to be proved; namely, (i) the accused, a public servant or a banker or agent was entrusted with the property of which he is duty bound to account for; and (ii) the accused has committed criminal breach of trust. What amounts to criminal breach of trust is provided u/s. 405, IPC. The basic requirement to bring home the accusations u/s. 405 are the requirements to prove conjointly (i) entrustment and (ii) whether the accused was actuated by dishonest intention or not, misappropriated it or converted it to his own use to the detriment of the persons who entrusted it. (Sadhupati Nageswara Rao vs. State of A.P.; 2012 Cr.L.J. 4317) (SC)

S. 409—Sentence for committing offence under is not entitled to lenient treatment while awarding sentence

Sec. 409 enables the Court to award imprisonment for life or imprisonment upto ten years along with fine. Considering the fact that the appellant was awarded imprisonment for 6 months along with a fine of Rs. 1,000/- only, we feel that the same is not excessive. On the other hand, we are of the view that persons dealing with the property of the Government and entrusted with the task of distribution under FFWS, it is but proper on their part to maintain true accounts, handover coupons to the Mandal Revenue Office and to execute the same fully and without any lapse. Such resource has not been followed by the appellant. The courts cannot take lenient view in awarding sentence on the ground of sympathy or delay, particularly, if it relates to distribution of essential commodities under any Scheme of the Government intended to benefit the public at large. Accordingly, while rejecting the request of the learned senior counsel for the appellant, we hold that there is no ground for reduction of sentence. (Sadhupati Nageswara Rao vs. State of A.P.; 2012 Cr.L.J. 4317) (SC)

Death sentence—Generally—When warranted—Principles reiterated—Existence of aggravating circumstances and consequential absence of mitigating circumstances—Necessity of

After considering the issue at length, the Court in State of Maharashtra vs. Goraksha Ambaji Adsul, (2011) 7 SCC 437, held as under: (SCC p. 451, para 41)

“41. … Awarding of death sentence amounts to taking away the life of an individual, which is the most valuable right available, whether viewed from the constitutional point of view or from the human rights point of view. The condition of providing special reasons from awarding death penalty is not to be construed linguistically but it is to satisfy the basic features of a reasoning supporting and making award of death penalty unquestionable. The circumstances and the manner of committing the crime should be such that it pricks the judicial conscience of the court to the extent that the only and inevitable conclusion should be awarding of death penalty.”

Thus, it is evidence that for awarding the death sentence, there must be existence of aggravating circumstances and the consequential absence of mitigating circumstances. As to whether death sentence should be awarded, would depend upon the factual scenario of the case in hand. The instant case is required to be examined in the light of the aforesaid settled legal propositions. (Neel Kumar vs. State of Haryana; (2012) 3 SCC (Cri) 271)

BACK TO INDEX

Industrial Disputes Act

S. 2-A (2) - Industrial dispute under - Raised by 2^nd respondent - Against the dismissal order - Labour Court held that there was no violation of principles of natural justice in procedure adopted in enquiry and required no interference - There is no question of showing any sympathy to workman - Labour Court clearly erred in directing reinstatement of workman - It is not a fit case where any relief can be given to such workman

Having found the enquiry valid and also having held that the charges are proved, there is no question of showing any sympathy to the workman, especially when he has assaulted his superior in the presence of witnesses, which even according to the Labour Court was clearly found proved. Once the enquiry is held to be fair and findings are recorded against the workman, then the question of invoking section 11-A of the Industrial Disputes Act, 1947 for series of misconduct will arise.

In the light of the findings recorded and the legal precedent referred to, it is not a fit case where any relief can be given to the second respondent workman and the Labour Court clearly erred in directing reinstatement of the workman, though without back wages and it did not take into account the binding precedent of the Supreme Court made in this regard. Hence, the impugned award dated 24.5.2006 passed in I.D. No. 623/1999 by the first respondent Labour Court stands set aside. (Management, Metropolitan Transport Copn. Ltd. Vs. Presiding Officer, Ist Addl. Labour Court, Chennai & another; (2012 (135) FLR 616) (Mad HC)

S. 2(s) – Workman - Determination of - Mere designation, source or method of employment, terms and conditions of employment, quantum of wages would not decide - Nature of primary duties performed by the employee would decide it - He could not be sent on deputation without consent - Action of management to send the workman on deputation was void ab initio

Transfer-Vis-à-vis deputation - Transfer can be done only on equivalent post in same cadre - Transfer is an incidence of service as per condition of service, reasonable notice of transfer to be given - In deputation the employee can be sent in other department - There is difference between transfer and deputation

What emerges from the evidence, oral as well as documentary, is that the respondent No. 2 is a workman within the meaning of section 2(s) of the Industrial Disputes Act, 1947. He could not be sent on deputation without his consent.

It is conclusively proved that the action of the Management to sent the workman on deputation was void ab initio. The Management has not instituted any disciplinary proceedings against the workman in view of the interim award. The Management was legally bound to restore the status of the workman before the passing of order dated 24.8.2002. The Management was bound to pay the salary to the workman w.e.f. 24.8.2002 till his superannuation.

The award passed by the learned Labour Court is reasoned and there is no perversity in the same. Learned Labour Court has discussed the entire oral as well as documentary evidence and has correctly applied the ratios of the judgments to determine the principles of ‘deputation’ and ‘workman’ within the meaning of section 2(s) of the Industrial Disputes Act, 1947.

It is evident from the language employed in paragraph No. 33 of the Standing Orders that workman can be transferred according to the exigencies of work from one shop or department to another or from one station to another or from one work place to another, from one establishment to another anywhere in India in existing establishment or to be set up in future under the Management of the Company and from one Associated Company to another. However, as per proviso, where a transfer involves moving from one station to another, such transfer shall take place either with the consent of the workman or where there is specific provision to this effect in the letter of appointment and also that a reasonable notice is given to such workman and reasonable joining time is allowed in case of transfer from one station to another.

There is a difference between transfer and deputation. The deputation can only take place with the expressed consent of an employee. Even, as per condition No. 1 of appointment letter, the workman could be transferred anywhere, but he has to be given reasonable notice as per paragraph No. 33 of the Standing Orders and also reasonable joining time to join. The Management has not placed any record to substantiate that reasonable notice was ever issued to the workman before sending him on deputation on 24.8.2002. Learned Industrial Tribunal-Cum-Labour Court, Shimla has rightly given a finding in paragraph No. 18 that without the expressed consent of the workman, he could not be sent on deputation. The workman, in there circumstances, could not be forced to join his duties at Lucknow on the basis of notices published in daily edition of Tribune and Dainik Tribune and final notice dated 10.5.2003

The transfer is always limited to equivalent post in the same cadre and in the same department. Deputation and transfer basically differ from each other in the sense that transfer can be only to an equivalent post in the same cadre; deputation must be in department other than the parent department where even equivalence may not have been determined. Transfer is right of the master and it is an incident of service and can only be challenged on the grounds of mala fide or violation of statutory rule relating to transfer. Deputation can only be with the consent because the employee joined department to render service in that department and he cannot be made to serve somewhere else may be in a post much lower to his post. (Mohan Meakin Limited, Solan Brewery, Solan Vs. Prisident, Mohan Meakins Staff Union and others; (2012(135) FLR 595) (HP HC)

Ss. 2 (s) & 25-F – Daily-wager - He worked as Messenger and Night watchman from 15.11.1984 to 9.9.1988 - He was refused employment from 10.9.1988 - Without employing s. 25-F of Act - Award of reinstatement without back wages passed by Labour Court/Industrial Tribunal - Award does not suffer from any jurisdictional error or any error of law apparent on face of it - Nor there is any grave error of fact based on any admissible evidence or own evidence - Any interference with award not required - Workman kept silent and did not agitate the matter for over two years - Hence, the Tribunal rightly denied back-wages to him - However, the Court directs that he be paid minimum wages as a daily-wager

The award passed by the Industrial Tribunal does not suffer from any jurisdictional error or any error of law apparent on the face of it, nor there is any grave error of fact based on any admissible evidence or own evidence. Such being the case, there is hardly any scope to interfere in the findings recorded by the Tribunal.

The Industrial Tribunal has come to the conclusion that the workman is not entitled to back wages in view of the fact that the workman kept silent and did not agitate the matter for over two years. The Tribunal further noted that any direction for payment of back wages for the period of inaction on the part of the workman would be an avoidable and unnecessary burden on the Bank’s exchequer. Such reasoning appears correct to this Court and hence, there is no reason to modify the same. So before parting with the cases, this Court directs that the workman be paid minimum wages as a daily wager as long as he is discharging his duties. (Management, State Bank of India Vs. Bhaskar Moharana and another; (2012 (135) FLR 87) (Orissa High Court)

S. 11-A – Discretion - Labour Court - Power of – Labour Court can substitute punishment - But to hold that no punishment deserved to be given to the delinquent workman - Even though found guilty of misconduct - Is not within the powers of Labour Court - In this case punishment of removal from service was not shockingly disproportionate to misconduct of exceptionally long period of absence

Section 11-A does empower the Labour Court to give any relief to a workman who has been discharged, removed or dismissed from service for some misconduct by the said provision does not empower the Labour Court to reward a guilty workman and that is what has been done by the Labour Court in the present case. The Labour Court can substitute the punishment awarded by the employer with any lesser punishment by to hold that no punishment deserved to be given to the delinquent workman even though found guilty of misconduct is not within the powers of the Labour Court. In fact even in the final award also it was observed by the Labour Court that the workman could not claim any benefit for his ‘follies’.

And considering the exceptionally long period of respondent’s absence from duty during the 1991-92 it cannot be said that the punishment of removal from service was shockingly disproportionate to the alleged misconduct and highly excessive which justified interference by the Labour Court, what to talk of letting him go scot free. (Delhi Transport Corporation Vs. Jai Prakash; (2012 (135) FLR 261) (Delhi High Court)

Ss. 12 (5) & 10 (1) (d) – Regularization – Permanency - Award by Tribunal directing to make permanent in service to employees involved in demand No. 8 and to pay monetary benefits of permanency in two instalments - Petitioner being “Local Authority” and “State” within meaning of Article 12 of Constitution - Petitioner is not an industrial establishment within meaning of section 2 (e) of Industrial Employment (Standing Orders) Act, 1946 (IESO Act) - Provisions of IESO Act not applicable as ordered - Petitioner cannot bear the financial burden of benefits claimed arising out of demand referred - Resultantly the order granting permanency is set aside - It is to be read as right to claim permanency on receiving sanction

The aspect of financial position of the petitioner/Corporation just cannot be gone into while deciding the claim of permanency in such fashion unless Government sanctions and/or creates and/or permits them to grant permanency in accordance with law.

Any local authority cannot be equated with “establishment” or “industrial undertaking” for granting permanency and/or related claim as it is always subject to grant/approval and sanctioned and vacant post. All these ingredients are interlinked, therefore, undissectable only for grant of permanency.

Therefore, taking overall view of the matter, I am not inclined to accept that the provisions of IESO Act is applicable to the petitioner/Municipal Corporation for the purposes of grant of permanency as ordered. I am also not inclined to accept that the petitioner can bear the financial burden of the benefits claimed arising out of the demand as referred for adjudication. The petitioner is not an industrial establishment within the meaning of section 2(e) of the IESO Act for the purposes of permanency as claimed and/or as granted.

The order of Member, Industrial Tribunal, Sangli dated 28 February, 2011, to the extent of granting permanency is set aside. However, it is to be read as right to claim permanency on receiving sanction and/or approval from the Director of Municipal Administration and/or the State Government if the posts are vacant and/or there is a vacancy and/or the posts are created. (Sangli Mirja Kupwad Cities Municipal Corporation, Sangli through Commissioner Vs. Mahapalika Kamgar Sabha, Sangli; (2012 (135) FLR 542) (Bombay High Court)

S. 17-B - Application under - Sought minimum wages during pendency of industrial dispute in higher Court - Employer has to pay to workman, full wages last drawn by him - If the workman had not been employed in any establishment - However, the Court has to see that the workman if in employment, if has been receiving adequate remuneration - Transient employment and self-employment would not be a bar to relief under section 17 (b) of Act - Interim relief can be granted w.e.f. the date of award - Wages which are amended are not confined to the last drawn wages - Workman has to establish that he is not gain fully employed - Applicants respondents are entitled to relief sought under section 17 (b) of Act - Petitioners are directed to calculate and debursed it to applicant workman

The employer shall be liable to pay such workman, during the period of pendency of such proceedings in the High Court or the Supreme Court, full wages last a drawn by him, inclusive of any maintenance allowance admissible to him under any Rule, if the workman had not been employed in any establishment during such period and an affidavit by such workman has been filed to that effect in such Court.

The wages which are amended are not confined to the last drawn wages. The workman however has to be establish that he is not gainfully employed in order to be entitled to an order for award of wages.

The Court has to see that the employment under another employer should be proved that the workman has been receiving ‘adequate remuneration’.

The interim relief can be granted with effect from the date of the award. The transient employment and self-employment would not be a bar to relief under section 17(b) of the Industrial Disputes Act.

In view of the discussion above and the settled law, I am of the considered opinion that the applicant-respondents are entitled to the relief sought under section 17(b) of the Industrial Disputes Act. (Mrs. Kiran Uppal, Prop. M/s. Class Vs. Ashok Kumar and others; (2012 (135) FLR 244) (Delhi High Court)

S. 17-B - Termination of service of respondent - By award of Industrial Tribunal, termination of services held to be unjustified and illegal and he was reinstated - Award challenged by management - Application for payment of minimum wages has to be allowed - Cannot be rejected on ground of delay - However, the petitioner management is directed to pay the respondent his last drawn wages or minimum wages

In my view this application has to be allowed and cannot be rejected on the ground of delay in filing of the same in view of the decision of the Division Bench of this Court in the case of “DTC v. Inderjit Singh”

The petitioner-management is directed to pay to respondent-workmen his last drawn wages or the minimum wages fixed from time to time, whichever are higher, from the date of passing of the impugned Award till the pendency of this writ petition, provided the workman files an undertaking within two weeks that in case the petitioner succeeds finally in its petition and it is found that he has received wages in excess of what he was entitled to get under section 17-B of the I.D. Act he shall refund the excess amount to the petitioner-management within four weeks from the date of passing of the judgment by this Court. (M.T.N.L. Vs. Ram Rattan; (2012 (135) FLR 403) (Delhi High Court)

Ss. 25-F, 15-G and 25-H – Reinstatement - Even if there is violation of sections 25-H and 25-G of Act - In would not automatically grant reinstatement in service with back wages - Compensation instead of reinstatement would be proper in the case

In view of above principles of law laid down by Hon’ble Apex Court, it is clear that even if there is violation of section 25-H and section 25-G of the Act, the same would not mean that the Labour Court should have automatically passed an award of reinstatement has been held proper to meet the ends of justice. (Nandu Devi Vs. Judge, Labour Court No. 2, Jaipur and others; (2012 (135) FLR 852) (Rajashan HighCourt)

S. 25-F - Non-compliance of - Workman had worked more than 293 days within a period of one calendar year - More than 240 days in 12 months - But before dispensing his services, legal requirement under section 25-F not complied with - Industrial Tribunal, therefore, directed reinstatement with 50% back wages and other consequential benefits - In light of legal precedents and factual matrix - It is not a fit case for interference with award

In the light of the legal precedents and the factual matrix recorded by the CGIT, it is not a fit case where any interference is called for. In fact the earliest case on the point is State Bank of India Vs. Shri N. Sundara Money (1976 (32) FLR 197(SC). The Supreme Court dealt with the case of substitute workman and yet held that if a workman completes 240 days in a period of 12 calendar months, his services cannot be dispensed with unless the mandatory condition precedent laid down is complied with by the employer. In such circumstances, reinstatement with back wages is the normal relief that had been laid by the Supreme Court. In fact that case did not arose out a proceeding before the Labour Court, but it arose out of a proceeding instituted before the High Court under Article 226. (Principal General Manager, Bharat Sanchar Nigam Ltd. Vs. Central Government Industrial Tribunal-cum-Labour Court, Chennai and another; (2012 (135) FLR 146) (Mad HC)

S. 33-C (1) - Payment of salary - Tribunal had correctly held that subsequent to refusal of permission to grant lay-off - Management had attempted to call workers for work but denied their service conditions i.e. transport facility and canteen facility - No notice under section 9-A was granted for - Depriving the workers of their service conditions disabled them to report for work - Tribunal had rightly held that they are entitled to full salary from August 16,2000 till the date of allotment of work - No case found to interfere with conclusions reached by the Tribunal and the final relief granted to workmen

The Tribunal held that the demand of the union claiming full salary for the period of denial of work to 39 workers excepting one Senthil kumar from June, 2000 till the allotment of work was justified. Further the demand of the union claiming that the layoff and denial of work from 16.8.2000 as illegal and they are entitled for full salary from 16.8.2000 till the date of allotment of work was justified. It is this award which had become the subject-matter of writ petition in W.P. No. 10362 of 2009.

The Tribunal had correctly held that subsequent to the refusal of permission to grant layoff, the management had attempted to call the workers for work. But at the same time, it had denied their service conditions, i.e., transport facility. Insofar as the canteen facility is concerned, it is the statutory requirement under section 46 of the Factories Act, 1948. The denial of the canteen facility will deprive the workers of their having food during lunch time. The denial of transport facility which was hitherto provided will hamper the travel to the factory and it had already become a condition of service. No notice under section 9-A of the I.D. Act was granted for depriving the conditions of service. Hence the workers were legitimate in not reporting to work in the absence of their service conditions being followed. Depriving the workers of their condition of service will disable them to report for work. This was especially when the conciliation officer himself on a demand made by the union had advised the management to restore those facilities.

In view of the above, this Court do not find any case is made out to interfere with the conclusions reached by the Tribunal and the final relief granted to the workmen. (D.C.M. Hyndai Ltd. and another Vs. State of Tamil Nadu and others; (2012 (135) FLR 57) (Mad HC)

S. 33(2)—No work no pay—Workmen were not allowed to work—Moved respective petitions claiming wages—Wages cannot be denied to a workman unless there were circumstances that would deny a workman the wages on the basis of “no work no pay”—Held, “workmen entitled to wages for the period they were denied work”

In this case, the application filed under Section 33-C (2) of the Industrial Disputes Act before the Labour Court by the workmen working in the Sugar Factory for salary during the period when they had not been paid their wages and when, according to the workmen, they were not allowed to work, the Labour Court found that the denial of employment at the relevant time was not justified and also found that the wages during the period when they were unjustly denied employment were to be paid.

Even as regards the issue on merit, I will not find any reason to interfere with the awards passed by the Labour Court since the management itself has admitted in the course of proceedings that the termination of services of the workmen was liable to be reversed and hence restored their services. The counsel appearing on behalf of the respondents relies on a judgment in CWP No. 18810 of 1995. In that case, the Division Bench has considered the issue of the maintainability of the petition claiming wages for a period when the workmen were not permitted to join duty and do their work. The Bench held, "it is a settled proposition of law that where the services of a workman are illegally terminated without justification, he is entitled to reinstatement with full back-wages Instead of implementing the award in letter and spirit, they chose not to pay back wages to which the respondent No.2 (workman) was entitled." In such a situation when a petition under Section 33-C (2) was filed, the Division Bench upheld the claim and rejected the plea that the petition and was not maintainable. The learned counsel for the workmen points out to the fact that when they had moved respective petitions claiming wages, the management had offered to take them back with full continuity of service. This fact has also been found reflected in the award of the Labour Court. If they were entitled to be taken back with continuity of service, the denial of wages shall not be merely done unless there were definite circumstances that would deny to a workman the wages on the basis of 'no work, no pay'. However, if the denial was not justified, there is no reason why the employer must be rewarded with a benefit of not paying the workmen the wages which they were entitled to. (Panipat Cooperative Sugar Mills Limited vs. Presiding Officer, Labour Court, Ambala; 2012(2) SLR 788 (P&H HC)

Sch. 2 Item 6—Equal pay for equal work—Existence of post mandatory for application of said principle

The workman Brij Nandan Lal admittedly was engaged as Mazdoor on 1.6.1963 in Farrukhabad Depot of erstwhile State Transport Department of U.P. Government which subsequently became Uttar Pradesh State Road Transport Corporation (hereinafter referred to as “UPSRTC”) a statutory body under State Road Transport Act. he claims that after promotion of one Om Prakash Shakya, Store Clerk as Assistant Store Keeper on 1.2.1979, post of Store Clerk fell vacant and the authorities concerned deployed the workman Braj Nandan Lal to perform duties of Store Clerk. He has functioned and discharged the aforesaid duties but ahs not been given designation and other consequential benefits of the said post. He raised an industrial dispute in 1989. The conciliation proceedings having been failed on the recommendation of Conciliation Officer, the State Government in exercise of power under Section 4-K of the U.P. Industrial Disputes Act, 1947 (hereinafter referred to as “Act 1947”) vide notification dated 6.12.1989, made the following reference for adjudication by Labour Court respondent No.2.

The workman files a detailed written statement and also adduced certain documents to show that he had been performing certain duties which are clerical in nature. The documents also include his own letter in which he has claimed to have been discharging duties as Store Clerk since 1979 and therefore claimed regular appointment on the said post. A document said to be letter dated 17.7.1986 sent by Deputy Manager, Central Zone recommending for regular appointment of the workman in stores was also filed before the Labour Court.

The employer, on the contrary, took the stand in the written statement that the workman was a permanent Mazdoor i.e. a Class IV employee and was never appointed on the higher post of Store Clerk by any competent authority in accordance with procedure prescribed in the rules.

The Labour Court itself has observed that if the post was not available, the workman ought to have been allowed pay and salary admissible to a clerical misdirected itself by ignoring that in order to apply principle of ‘equal pay for equal work’. In Court’s view the Tribuanl has clearly misdirected itself by ignoring that in order to apply principle of “equal pay for equal work” existence of a post has to be shown. Even otherwise, no principle of service jurisprudence has been shown to exist that a person if not recruited or employed in accordance with the procedure prescribed, yet, if worked or discharged duties of a particular nature, he would have a lien and right to claim a particular designation and even if it does not exist. (U.P. State Road Transport Corporation vs. Brij Nandan Lal; 2012 (5) ALJ 716)

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Juvenile Justice (Care & Protection of Children) Act

Ss. 2(1), 7A, 20 - Appellant convicted under S. 307, I.P.C. and sentenced to RI - Plea of juvenility raised for first time before Supreme Court - Appellant found to be juvenile on date of offence on basis of school leaving certificate - Act in all force would therefore apply - Considering fact that offence was more than 10 years old and appellant has crossed 30 yrs. of age - Court refused to remit matter to Juvenile Justice Court - Instead while upholding conviction set aside sentence imposed on appellant

Going by sub-rule (3)(a)(ii) of aforesaid Rule 12, the date of birth certificate from the school (other than a play school) first attended, comes at the second stage in the order of priority for consideration to ascertain the age of accused claiming to be a juvenile. In the case on hand, the appellant does not claim to be a matriculate. Therefore, the question of matriculation or equivalent certificate and its availability does not arise. The present claim as a juvenile is based on the School Leaving Certificate issued by the school in which the appellant stated to have studied up to 5th class, namely, Primary School, Chitayan, Distt. Mainpuri, Uttar Pradesh. As per the said certificate, the date of birth recorded in the school admission register and the corresponding entry in the School Leaving Certificate was 01.12.1981. The appellant stated to have joined the school on 08.1989 and left the school after subsequently completing his 5th standard on 01.07.1992. The correctness of the said certificate was examined by the learned District Judge, It was as directed by this Court as to be seen from the report dated 26.03.2012. The Principal Head Master of the School also verified the admission register. The counterfoil of the said School Leaving Certificate is placed before this Court. A perusal of the report also discloses that the certificate was genuine, that the date of birth record therein has been found to be correct and once the said position could be ascertained based on the above report, applying Rule 12 (3) as well as sub- rules (4) and (5) the said Rule read along with Section 7 A of the Act the appellant on 11.03.1998 was 16 years 3 months and 10 days old. The appellant, therefore, is covered by the decision of this Court in Hari Ram (AIR 2011 SC (Cri) 2053) supra). Since the appellant was below 18 years of age on the date of commission of the offence, the provisions of the Act would apply in full force in his case.

Having regard to the above conclusion, in the normal course we would have remitted the matter to the Juvenile Justice Court, It was for disposal in accordance with law. However, since the offence was alleged to have been committed more than 10 years ago and having regard to the course adopted by this Court in certain other cases reported in Jayendra & Anr. v. State of Uttar Pradesh, 1981 (4) SCC 149 : (AIR 1982 se 685), Bhoop Ram v. State of U.P., 1989 (3) SCC 1 : (AIR 1989 se 1329) which were subsequently followed in Bhola Bhagat v. State of Bihar, 1997 (8) SCC 720 : (AIR 1998 se 236: 1997 AIR SCW 4205), Pradeep Kumarv. State of U.P., 1995 Suppl (4) SCC 419: (AIR 1994 se 104: 1993 AIR SCW 3733), Upendra Kumar v. State of Bihar, 2005 (3) SCC 592 and Vaneet Kumar Gupta alias Dharminder v. State of Punjab, 2009 (17) SCC 587, we are of the view that at this stage when the appellant would have now crossed the age of 30 years, there is no point in remitting the matter back to the Juvenile Justice Court. Instead, following the above referred to decisions, appropriate orders can be passed by this Court itself.

Having regard to such a course adopted .by this Court in the above reported decisions, and in the case on hand based on the. report of the District and Sessions Judge, we are also convinced that the appellant was below 18 years of age on the date of commission of offence and the Juvenile Justice Act would apply in full force in his, case also. While upholding the conviction imposed on the appellant, we set aside the sentence imposed on him and direct that he be released forthwith, if not required-in any other case, the appeal is partly allowed to the extent indicated above. (Vijay Singh v. State of Delhi; AIR 2012 SC 3537)

Ss. 7-A, 33, 49 and 2(y) – Juvenility – Determination of – Nature, Scope and ambit of inquiry expected of court, Juvenile Justice Board and child welfare committee while dealing with claim of juvenility under JJ Act, 2000

“Age determination inquiry” contemplated under Section 7-A of the JJ Act read with Rule 12 of the 2007 Rules enables the court to seek evidence and in that process, the court can obtain the matriculation or equivalent certificates, if available. Only in the absence of any matriculation or equivalent certificates, does the court need to obtain the date of birth certificate from the school first attended other than a play school. Only in the absence of matriculation or equivalent certificate or the date of birth certificate from the school first attended, the court needs to obtain the birth certificate given by a corporation or a municipal authority or a panchayat (not an affidavit but certificates or documents). The question of obtaining medical opinion from a duly constituted Medical Board arises only if the abovementioned documents are unavailable. In case exact assessment of the age cannot be done, then the court, for reasons to be recorded, may, if considered necessary, give the benefit to the child or juvenile by considering his or her age on lower side within the margin of one year.

Once the court, following the above mentioned procedures, passes an order, that order shall be the conclusive proof of the age as regards such child or juvenile in conflict with law. It has been made clear in Rule 12(5) that no further inquiry shall be conducted by the court or the Board after examining and obtaining the certificate or any other documentary proof after referring to Rule 12(3). Further, Section 49 of the JJ Act also draws a presumption of the age of the juvenility on its determination.

Age determination inquiry contemplated under the JJ Act and Rules has nothing to do with an enquiry under other legislations, like entry in service, retirement, promotion, etc. There may be situations where the entry made in the matriculation or equivalent certificates, date of birth certificate from the school first attended and even the birth certificate given by a corporation or a municipal authority or a panchayat may not be correct. But court, Juvenile Justice Board or a Child Welfare Committee functioning under the JJ Act is not expected to conduct such a roving enquiry and to go behind those certificates to examine the correctness of those documents, kept during the normal course of business. Only in cases where those documents or certificates are found to be fabricated or manipulated, the court, the Juvenile Justice Board or the Child Welfare Committee need to go for medical report for age determination. (Ashwani Kumar Saxena v. State of Madhya Pradesh; (2012) 9 SCC 750)

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Land Acquisition Act

Ss. 3(b), 28-A—Person interested—Meaning of

It is clear that the expression “person interested” as used in Section 3(b) of the Act has to be given a liberal construction. The definition being only illustrative and not exhaustive, any claim of a person interested in the compensation has to be adjudicated and the application filed by the respondent No. 3 under Section 28-A of the Act cannot be thrown out at the threshold on the ground that the application is not maintainable since the respondent No. 3 is not a person interested. The question as to whether the applicant, who is respondent No. 3, makes out a case for entitlement for redetermination of the compensation is another question on merits of the application which is entirely different from the maintainability of the application on the ground of claiming interest in the compensation. Court, thus concluded that the application filed by the respondent No. 3 under Section 28-A of the Act cannot be thrown out at the threshold on the aforesaid ground and the same requires consideration on merits. (Allahabad Development Authority vs. State of U.P.; 2012 (5) ALJ 465)

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Land Law

Rajasthan Tenancy Act, S. 42 - Property of SC/ST - Restriction on transfer to person who is not SC/ST - Applies even to juristic person

The restriction on transfer of property of SC /ST to person who is not SC/ST provided in S. 42(6) applies even to transfer made to juristic person, Expression “Scheduled Castes” and “Scheduled Tribes”, in Section 42(b) of the Act have to be read along with the constitutional provisions and, if so read, the expression who is not a member of the Scheduled Caste or Scheduled Tribe would mean a person other than those who have been included in the public notification as per Articles 341 and 342 of the Constitution. The expression 'person' used in Section 42(b) of the Act therefore can only be a natural person and not a juristic person. If the view that word 'person' includes juristic person and as juristic person has no caste sale to juristic person is not hit by S. 42 is accepted the entire purpose of Section 42 will be defeated. (State of Rajasthan v. Aanjaney Organic Herbal Pvt. Ltd.; 2012 AIR SCW 5194)

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Legal Services Authorities Act

S. 21—CPC, O. 23, R. 3 proviso—Motor accident claim—Award of Lok Adalat on basis of compromise while compromise had not been signed by parties—Validity of

The petitioner has come up with a clear case that there was no compromise drawn up in writing or signed by the petitioner and, therefore, the recital contained in the order that the claimant has also signed the same is incorrect. She further submits that her counsel had not been instructed to enter into any compromise. The compromise memo was unauthorized and was not in conformity with the provisions of Order XXIII read with Rule 3 (A) of Civil Procedure Code.

In the instant case there is no dispute that the compromise was not signed by the petitioner and the records also indicates the same impugned order, therefore, incorrectly assumes that the petitioner had signed the compromise. The authorization through the vakalatnama has to be supplemented by the actual compromise being signed by the parties themselves.

In view of this wrong assumption of fact and keeping in view the law laid down by the Apex Court in the case of Banwari Lal (AIR 1993 SC 1139) (supra), the order dated 29^th July, 2001 and the subsequent order dated 25.3.2006 rejecting the Misc. application of the petitioner, cannot be sustained.

Accordingly the impugned orders dated 29^th July, 2001 and 25.3.2006 are set aside. The matter stands remitted to the Motor Accident Claims Tribunal to proceed to decide the claim in accordance with law ignoring the said compromise as expeditiously as possible. (Smt. Madhu Bala vs. H.P. Singh; 2012 (5) ALJ 464)

S. 22B—Jurisdiction of permanent Lok Adalat to adjudicate dispute on merit—Scope—Permanent Lok Adalat is not bereft of jurisdiction to adjudicate dispute on merits when it relates to public utility service

The aforesaid judgments referred to the provisions of Legal Services Authorities Act, 1987 (hereinafter referred to as the “Act, 1987”) prior to its amendment made in 2002 hence have no application to this case. After the amendment of Act, 1987 power of Parmanent Lok Adalat in relation to adjudication has already been settled by Apex Court and the said decision has been followed by this Court also.

In respect to a Public Utility Service, jurisdiction of Permanent Lok Adalat can be invoked. A dispute can be raised before Permanent Lok Adalat provided the parties had not already taken up their matter before any Court.

In Writ Petition No. 58289 of 2011 (Deputy General Manager, Bhartiya Door Sanchal Nigam Ltd. vs. Ram Kumar Sharma & Ors.), decided on 17^th October, 2011 (reported in 2012 (1) ALJ 649) and therein the Court has affirmed the decision of Permanent Lok Adalat granting damages on account of failure on the part of Public Utility Service to serve the individual concerned in rendering a particular service, which it was supposed to do so.

The above discussion and exposition of law, as laid down above, leaves no manner of doubt that Permanent Lok Adalat, in the present case, was not bereft of jurisdiction and the impugned order warrants no interfere on the ground of alleged lack of jurisdiction which this Court answer in negative. (Dr. Piyush Gupta vs. Smt. Suman Karanpal; 2012 (5) ALJ 669)

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Limitation Act

S. 5 – Condonation of delay-of 2 years and 263 days in filing appeal - Delay in filing appeal is not sufficiently explained – Delay cannot be condoned

In the case of R.B. Ramlingam v. R.B. Bhuvaneswari; 2009 (106) RD 813 the Hon’ble Supreme Court has held that filing of review petition is no impediment in filing special leave petition and as a proposition per se that the prosecution of review proceeding would not be a sufficient ground at all for purposes of Section 5 of the Limitation Act. In each and every case the Court has to examine whether delay in filing the special leave petition stands properly explained. True guide is whether the petitioner has acted with reasonable diligence in prosecution of his appeal or petition.

In view of these guidelines we are of the view that filing of review petition was no impediment for the appellant to prefer an appeal before this Court challenging the impugned award. If for the sake of argument it is assumed that the appellants were pursuing their review petition bona fidely even then inordinate delay in challenging the award i.e. after 3.9.2011 up to 7.5.2012 is not sufficiently explained. The explanation given by the appellant that the delay was caused in getting sanction/approval form the Chairman to prefer appeal before this Court, is no sufficient ground to condone the delay as per judgment dated 3.7.2010 (reported in 2010 (7) ADJ 838) rendered by this Court in Second appeal (Defective) No. 250 of 2010, State of U.P. though collector, Azamgarh v. Keshv Murari Rai.

In view of the aforesaid reasons we find that the appellant has not been able to sufficiently explain the delay in filing the appeal. The cause shown is not sufficient to condonate inordinate delay of 2 years and 263 days. Thus, the application under Section 5 of the Limitation Act is rejected. (Delhi Transport Corporation, Indraprasth Delhi v. Leelu & Ors.; 2012(6) ALJ 258)

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Minimum Wages Act

S. 20, proviso to ss. 20(2) and 20(3) – Const. of India, 1950 –Art. 21 - Minimum wages and penalty - Impugned order directing to pay minimum wages and imposed penalty for breach committed - No positive evidence of paying minimum wages produced - Fundamental right as guaranteed under Art. 21 is violated - And minimum wages not paid by petitioner – Hence, awarding compensation three times of amount claimed also justified - Not arbitrary or on higher side - No interference required with - Petition is liable to be dismissed - Petition dismissed with cost of Rs. 10,000/- payable to workman

Principle laid down by the Supreme Court is aptly applicable to the fact situation of the present case having regard to the illegality, injustice and miscarriage of justice done to the concerned workers by the petitioner in not paying the minimum wages to them for the period in question as mentioned in the order passed by the Minimum Wages Authority and we have to exercise our discretionary power to condone the delay in filing the application for computing the minimum wages and award compensation along with other monetary benefits as the Minimum Wages Authority has done justice to the workmen after placing reliance upon the decisions of the Apex Court. We accordingly condone the delay and supplement to the order passed by the Minimum Wages Authority to render justice to the workmen as their statutory rights has been flagrantly violated.

The finding that minimum wages were not paid to the concerned workmen for the period in question is based on proper appreciation of legal evidence in the absence of positive documentary evidence required to be produced by the petitioner before the Minimum Wages Authority. Therefore, the finding of fact recorded by the Authority on the contentious issue cannot be termed as erroneous. Having recording the finding of fact that minimum wages were not paid by the petitioner to the concerned workmen for the period in question awarding the same with compensation three times of the amount claimed is also justified in view of the fact that under provision of section 20 read with sub section (3) of the Minimum Wages Act, the Authority has the power to award ten times compensation. In the instant case, having regard to the findings of non-payment of minimum wages to the workmen it is in violation of fundamental rights guaranteed under Article 21 of the Constitution of India which is the ratio laid down by the Supreme Court.

The payment of less wages than the minimum wages is a violation of fundamental rights under Article 21 of the Constitution. In that view of the matter awarding compensation of three times of the minimum wages payable by the petitioner to the workmen is perfectly legal and valid, and it cannot be said that the same is on the higher side for the reason that the same could have been ten times more than the minimum wages payable to the workmen by the petitioner-Employer awarded by the authority. That has not been done in the instant case and only compensation of three times of the amount claimed has been awarded which cannot be termed as arbitrary, unreasonable or on the higher side. (General Security & Information Services (P) Ltd. Vs. Chief Rolling Stock Engineer, East Cost Railway Administration, B.B.S.R. and others; (2012 (135) FLR 63) (Orissa High Court)

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Motor Vehicles Act

Ss. 2(30) and 50 – Liability of Registered owner – Transfer of vehicle – Pay and recovery order – Validity of

The appeals are by registered owner, who claims that he had transferred the vehicle already to the respondent No. 5 and, therefore, the award could not have been passed against him. Transfer of a vehicle could take place by delivery and registration of the vehicle itself will be only evidence of such transfer and not a document of transfer itself. However, if a claim emanated from a third party, there will be nothing wrong about a Tribunal passing an order against a registered owner and also provide a right of recovery against the subsequent purchaser who is arrayed as a party. The duty to satisfy a claim by registered owner was laid down authoritatively by the Hon'ble Supreme Court in Dr. T. V. Jose v. Chacko P.M., 2001 ACJ 2059 (SC) and this decision was also cited by the Hon'ble Supreme Court in Pushpa v. Shakuntala, 2011 ACJ 705 (SC). Respondent No. 5 and already a party and the appellant will not be driven to a separate suit for securing a right of recovery of the amount from the subsequent purchaser. It is clarified here that the recovery rights provided by the award shall be enforced in execution after satisfying the claim of the third party. (Ashutosh Batra vs. Annu and others; 2012 ACJ 2319)

S. 3—Driving without licence—Driver holding American driving licence does not exculpate driver

A person who is conversant in driving a motor vehicle who is conversant in driving a motor vehicle in the United States and European countries may not be familiar with the road conditions in India. In India, the driver is always on the defensive due to various reasons. Pedestrains in India seldom use footpaths nor respect Zebra lines or traffic lights, two wheelers, auto rickshaws, cyclists and street vendors are common sights on Indian roads. A driver on Indian roads should expect the unexpected always, therefore, the plea that the accused has an American driving licence is not an answer for driving in Indian roads unless it is recognized in India or that person is having a driving licence issued by the Licensing Authority in India. (State Tr. P.S. Lodhi Colony, New Delhi vs. Sanjeev Nanda; 2012 Cr.L.J. 4174 (SC)

S. 3(1) r/w s. 2(47) – Driving licence – Badge – Requirement of

Driver cum-owner (respondent No. 4 herein) who was driving the vehicle at the relevant time did have a driving licence authorising him to driver a light motor vehicle. He did not have a further authorisation specifically authorising him to drive the passenger autorickshaw-a transport vehicle. That the driver was driving a transport vehicle without the requisite specific authorisation to drive a transport vehicle (hereinafter referred to as the badge for convenience) is not disputed. It is of course true that subsequently the driver had obtained a badge authorising him to drive the transport vehicle/passenger autorickshaw. On the date the accident, admittedly he did not have a valid badge authorising him to drive a transport vehicle. The accident was on 13.8.2005 and he had the requisite badge only w.e.f. 13.12.2005.

Learned counsel for the insurance company contends and it is not virtually disputed that the further authorisation (badge) as insisted by the latter part section 3 (1) was not there for the owner cum-driver. It is not trite that a person driving a motor vehicle must first possess the driving licence referred to in the former part of section 3 (1). But if he was driving a transport vehicle, he must have the further authorisation (badge) as insisted by the latter part of section 3 (1). It is unnecessary to embark on a more detailed discussion on this aspect. The last trace of doubt, if any, on this aspect is laid to rest by the decision in Angad Kal, 2009 ACJ 1411 (SC). It, therefore, is evident that respondent No. 4 was not duly licensed under section 3 (l) to drive the passenger autorickshaw (insured vehicle) which he was found driving at the relevant time. Such authorisation/ badge is essential and there certainly is an infraction of the provision of section 3 (1) which insists that the driver must have the requisite licence and badge issued to him if he were to drive a transport vehicle. (New India Assurance Co. Ltd. vs. Balakrishnan and other; 2012 ACJ 2441)

Ss.4-A & (3)(a) – Interest – From when due – Whether commissioner was justified in awarding interest after 30 days of the accident – Held, “Yes”

There is no dispute that the appellant had insured the lorry bearing registration No. KA 02-6818 and the said vehicle, which was driven by the respondent No. 1, having met with an accident on 24.5.2006 and respondent No. 1 sustaining employment injuries, which resulted in fracture of both bones of right leg and amputation above knee.

Orthopedic Surgeon, Victoria Hospital, Bangalore, has deposed that he has examined the injured on 18.1.2008 and found that there is loss of right lower limb above knee and the patient is walking with crutches and tenderness at stump area. He has opined that there is physical impairment of 80 per cent to the limb, which is permanent and he has opined that being in the profession of a driver, the functional disability is 100 per cent. He has stated that with an artificial limb the patient can walk with difficulty.

In S. Suresh v. Oriental Insurance Co. Ltd., 2010 ACJ 487 (SC), it has been held that:

“In our view, the ratio of the said judgment is squarely applicable to the facts at hand. We are of the opinion that on account of amputation of his right leg below knee, he is rendered unfit for the work of a driver, which he was performing at the time of the accident resulting in the said disablement. Therefore, he has lost 100 per cent of his earning capacity as a lorry driver, more so, when he is disqualified from even getting a driving licence under the Motor Vehicles Act.”

The case on hand is not different from the one decided by the Supreme Court in the decisions noticed supra.

The awarding of interest being in respect of scheduled injury and there being no deposit of compensation by the insured and the insurer within 30 days of the accident, in view of the provisions under section 4-A(3) of the Act, the Commissioner is justified in awarding interest on compensation after 30 days of the accident. (New India Assurance Co. Ltd. vs. N. Venkatesh and another; 2012 ACJ 2503)

Ss. 134, 187—Motor accident - Duty of driver, by standers and passenger to help victim—Directions issued to Central and State Govt.

It is the duty of every citizen to help a motor accident victims, moreso when one is the cause of the accident, or is involved in that particular accident. Situations may be there, in a highly charged atmosphere or due to mob fury, the driver may flee from the place, if there is a real danger to his life, but he cannot shirk his responsibility of informing the police or other authorized persons or good Samaritans forthwith, so that human lives could be saved. Failure to do so, may lead to serious consequences. Passengers who are in the vehicle which met with an accident, have also a duty to arrange proper medical attention for the victims. Further they have equal responsibility to inform the police about the factum of the accident, in case of failure to do so they are aiding the crime and screening the offender from legal punishment. No legal obligation as such is cast on a bystander either under the Motor Vehicles Act or any other legislation in India. But greater responsibility is cast on them, because they are people at the scene of the occurrence, and immediate and prompt medical attention and care may help the victims and their dear ones from unexpected catastrophe. Private hospitals and Government hospitals, especially situated near the Highway, where traffic is high, should be equipped with all facilities to meet with such emergency situations. Ambulance with all medical facilities including doctors and supporting staff should be ready, so that, in case of emergency, prompt and immediate medical attention could be given, Passing vehicles seldom stop to give a helping hand to take the injured persons to the nearby hospital without waiting for the ambulance to come. Proper attention by the passing vehicles will also be of a great help and can save human lives. Many a times, bystanders keep away from the scene, perhaps not to get themselves involved in any legal or Court proceedings. Good Samaritans who come forward to help must be treated with respect and be assured that they will have to face no hassle and will be properly rewarded. Supreme Court considering the need directed the Union of India and State Governments to frame proper rules and regulations and conduct awareness programmes so that the situation like this could to a large extent, be properly attended to and, in that process, human lives could be saved. (State Tr. P.S. Lodhi Colony, New Delhi vs. Sanjeev Nanda; 2012 Cr.L.J. 4174 (SC)

S. 147 – Motor insurance – Tractor – Trailer – Passenger risk – Liabilities of insurance company – Consideration of

The specific case of the claimants is that the respondent No. 1 engaged the deceased to harvest and transport groundnut crop in his fields. The claimant No. 1, who was examined as PW 1, specifically deposed that the respondent No. 1 engaged the deceased and other coolies to harvest and transport the groundnut crop from his fields to their village Diguvapalli and that while they were returning from the fields to their village Diguvapalli in the trailer attached to the tractor belonging to the respondent No. 1, the accident occurred. In the cross-examination, he categorically deposed that on that day, the deceased along with others worked in the fields of the respondent No. 1. He denied the suggestion that 30 persons were travelling in the tractor at the time of the accident. He has also denied the suggestion that the deceased and others were travelling as unauthorised passengers in the tractor and trailer. It has to be seen that no suggestion was given to PW 1 that the deceased and others were being carried for hire or reward.

Exh. B1, the copy of the insurance policy, specifically provided limitations to use as follows:

"The policy covers use of the vehicle for any purpose other than (a) organised racing, (b) pace making, (c) reliability trials, (d) speed testing, (e) use whilst drawing a trailer except while towing (other than for reward) of anyone disabled mechanically propelled vehicle and (f) use for carriage of passengers for hire or reward."

Admittedly, the tractor and trail was used for carrying coolies to harvest the groundnut crop. Therefore, it cannot be said that those coolies were passengers being carried for hire and reward. Therefore, it is clear that the respondent No. 2, insurance company, cannot avoid its liability. Therefore, I do not see any reason to interfere with the award passed by the Tribunal and, hence, this appeal is liable to be dismissed.

In the result, the civil miscellaneous appeal is dismissed confirming the award, dated 4.10.2006, in O.P. No. 113 of 2005, passed by the Motor Accidents Claims Tribunal-cum-Fifth Additional District Judge, Fast Track Court, Anantapur. There shall be no order as to costs. (Oriental Insurance Co. Ltd. vs. S. Rammanjaneyulu and others; 2012 ACJ 2355)

S.147 – Motor insurance – Passengers risk – Liability of insurance Co. towards Passengers which were not passengers in real sense but labour of owner of tractor in Tractor Trailer – Consideration of

The respondent No. 1 who is the owner of the tractor and trailer bearing No. AP 02-C 7919 and 7920 respectively engaged the deceased and others to harvest and transport groundnut oil at their village Diguvapalli. While deceased and others were returning in the tractor, the driver of the same drove it in a rash and negligent manner as a result of which the trailer turned turtle. Deceased and others sustained injuries and the deceased succumbed to injuries. The claimants claimed a total compensation of Rs.2,00,000 under sections 140 and 166 of the Motor Vehicles Act, 1988 and rule 455 of the A.P. Motor Vehicles Rules, 1989, for the death of the deceased.

The Tribunal framed the following issues for consideration:

(1) Whether the accident occurred on 30.10.2004 due to rash and negligent driving of tractor and trailer bearing No. AP 02-C 7919 and 7920 by its driver and caused the death of Saroja?

(2) Whether the petitioner is entitled to compensation and if so, to what amount and from which respondent?

(3) To what relief?

Learned counsel for the appellant relied on a decision reported in Divisional Manager, New India Assurance Co. Ltd. v. Tumu Gurava Reddy, 1999 ACJ 1077 (AP), wherein it is observed that the tractor intended to be used for agricultural purpose is covered by insurance and when coolies were transported with the tractor to work in the field of the owner of the vehicle, it cannot be treated as carrying the passengers for hire or reward and, therefore, there is no violation of the terms and conditions of the policy in such situation.

Admittedly, the tractor and trail was 'ed for carrying coolies to have the groundnut crop. Therefore, it cannot I said that those coolies were passenger being carried for hire and reward. Therefore, it is clear that the respondent No. 2, insurance company, cannot avoid its liability. Therefore, I do not see any reason to interfere with the award passed by the Tribunal and, hence, this appeal is liable to be dismissed. (Oriental Insurance Co. Ltd. vs. S. Rammanjaneyulu and others; 2012 ACJ 2355)

S.149(2)(a)(i)(c) – Motor insurance – Permit – Violation of – Defences available to insurance Co. – Whether violation of terms of Permit is a ground available to insurance company to avoid liability – Held “No”

Learned counsel for the respondent No. I-claimant has produced copy of the judgment in the case of New India Assurance Co. Ltd. v. Mahadevamma, 2010 ACJ 1579 (Karnataka). The said appeal was filed by this very appellant insurance company through this very same counsel, viz., Mr. O. Mahesh, Advocate, Bangalore. The coordinate Bench of this court has held in the said case that if the vehicle has got a contract carriage permit and plied as stage carriage and thereby violated the terms of permit, that may be a ground for the authorities under the Act to take steps against the owner of the vehicle for cancellation of the said permit, but the same cannot be a ground for the insurance company to be absolved from its liability to pay compensation to the third party in view of sections 147 and 149 of the Motor Vehicles Act." The said M.P.A. No. 4647 of 2007 and the present M.P.A. have arisen from out of the same accident.

Having regard to the above nature of pleadings and evidence placed on record by the appellant insurance company before the Claims Tribunal and also in view of the decision of this court in the case referred to supra, I have no alternative but to hold that the appellant insurance company is liable to pay compensation to the respondent No. l-claimant. (New India Assurance Co. Ltd., vs. M. Prabhu and another; 2012 ACJ 2391)

S. 149(2)(a)(ii) – Motor insurance – Liabilities of insurance Co. – Pay and recover order – Validities of

The respondent Nos. 1 to 4 filed a petition under sections 166 and 140 of the Motor Vehicles Act against the appellant and the respondent Nos. 5 to 7 for grant of compensation of Rs. 20,00,000 jointly and severally together with interest there on. The said claim petition was filed as a result of a road accident which took place on 12.2.2005 at 2.30 p.m. when Bishamba the husband of the respondent No. 1 an the father of the respondent Nos. 2 to 4 was crossing the main road at Lal Bahadi Shastri Marg and was hit by a scooter bearing No. DL 7S-K 9664, being driven by the respondent No. 5, who was coming from the side of Sudharshan Chowk, rashly an negligently at a very high speed. A case bearing F.I.R. No. 54 of 2005 was registered under sections 279/304-A, India Penal Code against the respondent No. 5 who was then arrested and charge-sheeted for the aforesaid offences as well as for the offence punishable under section 3 of the Motor Vehicles Act, 1988 for not possessing a driving licence.

The learned Tribunal by its award dated 27.5.2009 held that the deceased Bishambar had sustained fatal injuries in the motor accident involving the offending vehicle and accordingly the respondent Nos. 1 to 4/claimants in the claim petition had become entitled to receive compensation of Rs.4,08,000 with interest thereon at the rate of 7 per cent per annum from date of filing of the petition till the date of realization of the award amount. As regards the apportionment of liability, the learned Claims Tribunal, after sifting through the evidence, came to the conclusion that the appellant Mukesh Kumar was the registered owner of the offending vehicle and Om Prakash, respondent No. 6, was the de facto owner of the offending vehicle on the date of the accident. Learned Claims Tribunal noted that neither the appellant nor the respondent No. 6 had disputed driving of the offending vehicle by Umesh Kumar, respondent No. 5, however, neither of them had adduced any evidence that they had ever engaged the said Umesh Kumar as their driver to drive the offending Vehicle or allowed the offending vehicle to be driven by him. The learned Claims Tribunal held that material on record had established that respondent No. 5 did not have a driving licence to drive the offending vehicle the date of the accident, inasmuch as even during the pendency of the case neither any copy of driving licence was filed proved on record. Since the respond No. 5 was not having any driving lice: to drive the offending vehicle on the date of the accident and the registered owner as well as the de facto owner had failed to adduce any evidence that either of them had allowed respondent No. 5 to drive the offending vehicle after seeing his driving licence, the learned Tribunal held that the insurance company could not be held liable to make payment of the compensation awarded to the claimants.

Aggrieved by the aforesaid findings of the Claims Tribunal, the appellant, who is undeniably the registered owner of the offending vehicle, has assailed the same by filing the present appeal, which is contested by all the respondents albeit on different grounds.

Indubitably, in the present case, the respondent No. 5 was driving the offending vehicle without any driving licence at all and the insurance company cannot be mu1cted with the liability to pay the compensation to the claimants. At the same time, the respondent Nos. 1 to 4, i.e., the claimants cannot be made to suffer for no fault of theirs and must be held entitled to receive the compensation from the insurance company in view of the fact that the vehicle was duly insured in the name of its recorded owner on the date of the accident. It is accordingly held that the insurance company shall pay the awarded amount to the respondent Nos. 1 to 4 in the first instance and thereafter recover the same from the appellant and the respondent No. 6, who have been held equally liable for the tortious act of the respondent No. 5. No doubt, both the appellant and the respondent No. 6 have denied that the respondent No. 5 was their driver and the respondent No. 6 has concocted a story that the vehicle purchased from the appellant was returned to the appellant by him after he had driven the same for one and a half months, but, as already discussed above, the said version of the respondent No. 6 is unworthy of credence. Appellant also failed in his duty of ensuring that the ownership of the vehicle was transferred to the respondent No. 6 in the records of the Registering Authority and for this lapse on his part, he too must be held liable to pay the compensation amount.

Accordingly, the appeal is allowed to the limited extent that the insurance company shall pay the award amount in the first instance. The insurance company shall, however, be at liberty thereafter to recover the same from the appellant and the respondent No. 6, who are both held equally liable to pay the award amount. (Mukesh Kumar vs. Kamlesh Devi and others; 2012 ACJ 2269)

Ss.149(2)(a)(ii) & 149(2)(a)(i)(c) – Motor insurance – Fake licence – Route permit – Liability of Insurance Co. – Determination

On 30-11-2006, at about 3.30 p.m., vehicle No. JK 02-W 2178, driven rashly and negligently by Praveen Singh, respondent No. 3 herein, hit Anshul Verma, respondent No. 1, at Paloura, Mandi Chowk, Janipur, Jammu. The injured was shifted to the Government Medical College, Jammu, and remained hospitalised for a period of more than five months. The injured through his father, Pawan Kumar, laid a claim petition under sections 1661140 of Motor Vehicles Act before the Motor Accidents Claims Tribunal, Jammu (in short ‘the Tribunal’). The respondent No. 1, in the claim petition, registered as File No. 196 Claim, sought compensation of Rs.13,05,000 with interest at the rate of 12 per cent per annum, on account of medical expenses, special diet, conveyance, loss of academic year, loss of earning capacity, pain and suffering and future medical expenses. The respondent No. 1 gave break-up of compensation demanded on different counts in para 21 of the claim petition.

The insurance company, the present appellant, opposed the claim petition on the ground that driver of offending vehicle, respondent No. 3, did not possess a valid and effective driving licence at the time of accident. The appellant also contested the claim as regards medical expenses incurred by respondent No. 1 after the accident as also the period of hospitalisation of the respondent No. 1 as pleaded in claim petition. The appellant even disputed involvement of offending vehicle in the accident.

The appellant insurance company, on the other hand, did not adduce any evidence to prove that it was not liable to pay any compensation because of fake driving licence and vehicle having been plied at the time of accident against the route permit. The appellant insurance company did not even adduce any evidence to controvert the evidence adduced by respondent No. 1, touching the extent of loss suffered by respondent No. 1 because of accident or the amount of just compensation the respondent No. 1 was entitled to claim. In view of failure on the part of appellant insurance company to rebut the evidence adduced by the respondent No. 1, learned Tribunal was left with no option but to place reliance on the evidence so produced. There was no reason for the Tribunal to disbelieve the statement of PWs Pawan Kumar, Vinod Kumar, Makhan Singh and Dr. Som K. Chadgal, who, as is already pointed out, in their statements gave elaborate and viewed description of the vehicular accident in question, the pain and discomfort suffered by respondent No. 1, loss of academic year, loss of amenities of life. The appellant insurance company, after it frittered away the opportunity given to it, to controvert and contradict the evidence brought on file by respondent No. 1, cannot be heard saying that the award was not based on any evidence. (Bajaj Allianz General Insurance Co. Ltd. vs. Anshul Verma and others; 2012 ACJ 2404)

S. 149(2)(a)(ii) – Motor insurance – Fake Driving License – Liability of Insurance company – Determination of

It is not the case of the appellant insurance company that the driver had obtained a licence to drive transport vehicle by any dubious method or by playing fraud, but the argument is that the driver is not authorised to drive an auto rickshaw or a ‘motorcab’ as it is allowed to carry three passengers along with the driver.

To examine this argument, one has to necessarily look into the definition of 'transport vehicle', as is found in sub-section (47) of section 2 of the Act reading that it means a public service vehicle and a goods carriage, an educational institution bus or a private service vehicle. A ‘public service vehicle’ is defined in sub-section (35) of section 2 of the Act and it means “any motor vehicle used or adapted to be used for carriage of passengers for hire or reward, and includes a maxicab, a motorcab, contract carriage, and stage carriage.

A motorcab, in turn, is defined in sub-section (25) of section 2 of the Act, which means any motor vehicle constructed or adapted for carrying not more than six passengers excluding the driver for hire or reward.

However, even according to learned counsel for the appellant, the vehicle is one which is constructed to carry three passengers with driver and, therefore, it necessarily fits into the definition of ‘motorcab’. If a person is authorised to drive a transport vehicle, it inevitably amounts that the license also permits the holder of the licence to drive a motorcab like the auto cab; that the licensee is also authorised to drive a motorcab apart from the variety of other vehicles as noticed above.

For our purpose, it is suffice to hold that the licence held by the driver of the vehicle involved in the present accident was one which enabled the driver to drive an autorickshaw also, being a motorcab a vehicle constructed and designed to carry three passengers, i.e., less than six passengers. It is, therefore, the argument advanced by the learned counsel for the appellant that the insurance company is not liable to ‘indemnify the insured in terms of the defence it can take under section 149 of the Act, is an untenable, illogical and frivolous argument. (Divisional Manager, National Insurance Co. Ltd. vs. Prakash and another; 2012 ACJ 2656)

S.163A – Claim application – Maintainablity of – Whether claim u/s. 163A for death of owner ensured of the vehicle is maintainable – Held “No” – Would be allowed compensation against insurance company

The respondents-claimants herein filed their claim petition under section 163-A of the Act contending that the husband of the respondent No. I while the father of applicant Nos. 2 and 3, namely, Purushottam Patel, was driving his own tractor on 9.5.2003 having the engine No. B.O. 8061 and chassis No. SLO-301-SA- 35951, which collided with a bridge of a canal and met with an accident, resultantly, he sustained the injuries and consequently died. As per further averments, deceased was working as Post Master in the Postal Department of Union of India and being agriculturist, was also having income from agriculture. On receiving information of such accident, a Crime No. 215 of 2003 for the offence under section 304-A of Indian Penal Code was registered at Police Out-post, Anjania, and corpse of the deceased was sent to hospital for post-mortem, the same was carried out. Due to death of said registered owner of the tractor, no charge-sheet was filed in the matter. With these averments without showing any negligence on the part of the deceased, the present claim is preferred on behalf of respondents against the appellant insurer with whom the alleged tractor was insured for the compensation of Rs. 17,00,000 with interest at the rate of l2 per cent per annum.

In reply of the appellant, by denying the facts stated in the claim petition regarding alleged accident, in addition, it is stated that such tractor was driven by Purushottam Patel, contrary to the terms of policy without having an effective driving licence. Besides this, the claim is also objected on the ground of tenability before the Tribunal under section 163-A of the Act. It is stated that the deceased being insured and registered owner of the vehicle as per terms of the insurance policy, his legal representatives, the respondents, are not entitled to get any award under the provisions of section 163-A of the Act from the Tribunal.

I am of the considered view that even after happening of the unfortunate incident in the family of the respondents in which their predecessor Purushottam Patel, the registered owner and the insured of the present offending tractor, had died, they did not have any authority to file the claim petition in the Motor Accidents Claims Tribunal under section 163- A of the Act. Therefore, in such circumstances, the questions which were raised on behalf of appellant on some merits of the facts, in the lack of jurisdiction, could neither be considered by the Tribunal nor the same could be considered by this court. At this stage, respondents’ counsel Mr. Sapre prayed that on allowing this appeal and setting aside the impugned award then in the available circumstances instead of dismissing the claim petition of the respondents along with their cross-objection filed in this appeal, the same be directed to be returned to them by extending a liberty to approach the appropriate forum under the Consumer Protection Act,1986 or some other appropriate forum permissible under the law to file their claim on the grounds stated in the claim petition, and the cross-objection also with other available grounds.

In view of the aforesaid discussions, the impugned award being passed by the Tribunal in the lack of jurisdiction by entertaining the claim petition of the respondents under section 163-A of the Act is held to be perverse and pursuant to that, the same deserves to be set aside by allowing this appeal. (National Insurance Co. Ltd. vs. Sunita and others; 2012 ACJ 2400)

Ss. 163-A & 166 – Claim application – Conversion of claim application U/s. 166 to one U/s. 163-A – Consideration of

Claimants filed two separate claim applications under section 166 for death of two persons – They received compensation through interim award for no fault liability under section 140 – Claimants then got claim applications converted with permission of the Tribunal as under section 163-A and Tribunal allowed compensation in each case.

On perusal of both the claim petitions in both the above appeals, there was no dispute that it is the contention of the claimants-respondent Nos. 1 to 3 that the income of the deceased was more than Rs. 40,000 per annum and, obviously considering the said income of both the deceased, the respondent Nos: 1 to 3 were not entitled to maintain a petition under section l63-A of the said Act. This court in the judgment reported in the case of New India Assurance Co. Ltd. v. Latabai 2009 AC] 1387 (Bombay), has held, paras 3, 4 and 5 thus:

(3) According to the assertion made in the claim petition filed by the respondent Nos. 1 and 4, the age of the decease at the time of accident was 36 years an he was drawing a salary of Rs. 7,211 per month. The Apex Court has held that the remedy under section 163-A of the said Act has been created for a specified class of the society having income up to Rs. 40,000 per year. The earlier view was that it is possible to notionally bring down the income of the decease to Rs. 40,000 for bringing the claim petition within the purview of section 163-A of the said Act. However, now the law on this point is very clear and the remedy under section 163-A is available only to those whose income is up to Rs. 40,000 per year. The claim petition of the others will have to be decided in accordance with section 166 of the Motor Vehicles Act, 1988.

Considering the said judgment of this court there can be no dispute that the claim petition under section 163-A of the said Act was not maintainable and, as such, the impugned judgment and award are not sustainable in law.

With regard to the other contention raised by the learned counsel appearing for the appellant, there is no dispute that an award under section 140 of the said Act was passed in both the above claim petitions and amounts were duly recovered by the respondent Nos. 1 to 3. The learned single Judge of this court in the case of New India Assurance Co. Ltd. (supra) has held that once the amount under section 140 of the said Act was already received, the petition under section 163-A of the said Act is not maintainable. As such, the learned Tribunal was not justified to proceed to decide the claim petition under section 163-A of the said Act.

There is no dispute that originally the claim petitions were filed under section 166 of the said Act which were thereafter allowed to be treated as being under section 163-A of the said Act. The accident is stated to have taken place somewhere in the year 2000. As considerable time has elapsed from the date of the accident, which resulted in the death of the wife as well as the daughter of the original respondent No. 1, I find that in the interest of justice, the impugned judgment and award deserves to be quashed and set aside and the Tribunal be directed to dispose of both the claim petitions as expeditiously as possible. The claim petitions would have to be decided in terms of the provisions of section 166 of the said Act. (National Insurance Co. Ltd. vs. Bruno Baltazar Saldanha and others; 2012 ACJ 2253)

S. 163-A and Employees State Insurance Act, S. 53 – Claim application – Maintainability of – Bar against receiving compensation under any other law – When provision of S. 163-A of M.V. Act provides that there is no bar under any other law then claim application filed under this section is maintainable

So far as first point is concerned, we have to extract the provision of section 53 of the E.S.I. Act and section 163-A of the Motor Vehicles Act, for reference, which reads as follows:

“53. Bar against receiving or recovery of compensation or damages under any other law.-An insured person or his dependants shall not be entitled to receive or recover, whether from the employer of the insured person or from any other person, any compensation or damages under the Workmen's Compensation Act, 1923 (8 of 1923), or any other law for the time being in force or otherwise, in respect of an employment injury sustained by the insured person as an employee under this Act.

l63-A. Special provisions as to payment of compensation on structured formula basis.-(l) Notwithstanding anything contained in this Act or in any other law for the time being in force or instrument having the force of law, the owner of the motor vehicle or the authorised insurer shall be liable to pay in the case of death or permanent disablement due to accident arising out of the use of motor vehicle, compensation, as indicated in the Second Schedule, to the legal heirs or the victim, as the case may be."

From a reading of both sections, it is clear that section 163-A of the Motor Vehicles Act has been inserted by Act 54 of 1994 w.e.f. 14.11.1994, whereas section 53 of the E.S.I. Act was substituted w.e.f. 28.1.1968. When the provision of section 163-A of the Motor Vehicles Act says that there is no bar under any other law, the petition filed under section 163-A of the Motor Vehicles Act has to be held as maintainable, since section 163-A has been introduced long after the provisions of section 53 of the E.S.I. Act. (New India Assurance Co. Ltd. vs. Vijay Balshiram Walunj and others; 2012 ACJ 2292)

Ss. 163-A & 167 and Workmen’s Compensation Act - S. 3(5) – Option of forum – Maintainability of claim application

The Court has observed that the answer to the plea of the appellant that proper forum for the claimants was under the Workmen's Compensation Act and not a claim petition under the Motor Vehicles Act, is in the observations made in Rita Devi, 2000 ACJ 801 (SC), by the Supreme Court which are as under:

“(15) ... We do not see how the objects of these two Acts, namely, the Motor Vehicles Act and the Workmen's Compensation Act, are in any way different. In our opinion, the relevant object of both the Acts is to provide compensation to the victims of accidents. The only difference between the two enactments is that so far as the Workmen's Compensation Act is concerned, it is confined to workmen as defined under that Act while the relief provided under Chapters X to XII of the Motor Vehicles Act is available to all the victims of accidents involving a motor vehicle. In this conclusion of ours we are supported by section 167 of the Motor Vehicles Act, 1988 as per which provision, it is open to the claimants either to proceed to claim compensation under Workmen's Compensation Act or under the Motor Vehicles Act. A perusal of the objects of the two enactments clearly establishes that both the enactments are beneficial enactments operating in the same field, hence judicially accepted interpretation of the word 'death' in Workmen's Compensation Act is, in our opinion, applicable to the interpretation of the word ‘death’ in the Motor Vehicles Act also.”

From the above discussion, The Court did not found any merit in the instant appeal. (Oriental Insurance Co. Ltd. vs. Phulo Devi and others; 2012 ACJ 2591)

S. 163-A – Fatal Accident – Quantum – Deceased aged 40 years, truck driver and claimable were widow, sons and daughter, total 8 – Future prospect – Consideration of

The court relying upon the judgment of Rita Devi v. New India Assurance Co. Ltd., 2000 ACJ 801 (SC), the Claims Tribunal awarded compensation of Rs.5,17,480 to the dependants/ claimants of the deceased Hari Chander. The said compensation comprised Rs.4,92,480 on account of loss of dependency of the claimants/dependants; Rs.15,000 on account of consortium and Rs.10,000 on account of funeral expenses. Since there was no cogent evidence led with regard to the income of the deceased, the Tribunal took the prescribed minimum wages of a skilled worker as the basis of calculation of compensation and taking note of the fact that minimum wages would have increased to double considering the age of the deceased as 40 years. The Tribunal assessed the average monthly income of the deceased at Rs.4,275. Since the deceased had left behind as many as 8 dependants, the Tribunal made deduction of 1/5th from the average monthly income of the deceased for his personal and living expenses. In this manner, the Tribunal calculated the loss of financial dependency of the dependants to be Rs.3,420 per month or Rs.41,040 per annum. He applied the multiplier of 12 and arrived at a figure of Rs.4,92.480 as loss of financial dependency of the dependants.

The insurance company assailed the impugned award mainly on the ground that it was not a case of death of deceased Hari Chander in a motor accident, but it was a case of murder simpliciter by the person known to him and his friends. It was submitted that the reliance upon the case of Rita Devi, 2000 ACJ 801 (SC), by learned Tribunal was misplaced. The impugned award was also challenged on the ground that the learned Tribunal has erroneously taken the double of the minimum wages in arriving at the average monthly income of the deceased.

Cross-objections were also filed by the respondent Nos. 1 to 7 who were dependants of the deceased. They averred that the Tribunal has wrongly applied the multiplier of 12 which according to them ought to be.

Adverting to cross-objections filed by the claimants, it is again noted that admittedly the deceased was aged 40 years and has left behind as many as 8 dependants. As per the judgment of Sarla Verma v. Delhi Transport Corporation, 2009 ACJ 1298 (SC), the multiplier that was to be applied was 15 and not 12 as applied by the Tribunal. Apparently, Tribunal seems to have erred in applying the multiplier of 12. However with regard to the claim of the compensation on account of loss of love and affection and loss to estate, the petition being under section 163-A of the Motor Vehicles Act, the claimants are not entitled to any compensation under this head. Consequently, in view of above, the claimants would be entitled to compensation to be calculated by applying multiplier of 15. In this view of the matter, the claimants are entitled to compensation of Rs.6,15,600 (Rs.3,420 x 12 x 15) on account of loss of dependency instead of Rs. 4,92,480 as awarded by the Tribunal. Thus, they would be entitled to enhanced compensation of Rs.1,23,120 (Rs. 6,15,600 - Rs. 4,92,480) on this count. Since respondent No. 8 has not claimed any enhanced compensation, 40 per cent of the enhanced compensation shall be paid to the claimant No. 1 who is the widow of the deceased and 10 per cent each to claimant Nos. 2 to 7 who are sons and daughters of the deceased. The shares of the minors would be kept in FDR in a nationalised bank in their names till they attain the age of majority. Insurance company who is the insurer is directed to pay the enhanced compensation of Rs.1,23,120 within 30 days from today and thereafter with interest at the rate of 7.5 per cent per annum. (Oriental Insurance Co. Ltd. vs. Phulo Devi and others; 2012 ACJ 2591)

Ss. 166 & 169 – Maharashtra Motor Vehicles Rules, R.2 – Necessary party – Powers and procedure of claim Tribunal – Whether responsibility lies on claim Tribunal to ensure that notices are issued to all necessary parties – Held, “Yes”, Tribunal can exercise this power at any stage

Perusal of the provisions of the said Act and the said Rules of 1989 shows that a claim petition is not at all a civil suit and neither the said Act nor the said Rules of 1989 require a claimant to implied any person as a party opponent to a claim petition. A duty is cast upon the Tribunal by virtue of rule 260 of the said Rules of 1989 to issue the notices to the concerned parties.

Thus, the law is that the claimant while filing a claim application is under no obligation to ensure that all necessary and proper parties are impleaded as opponents to the claim petition. Considering the nature of the proceedings, the responsibility is of the Tribunal to ensure that the notices are issued to all the necessary parties. This power can be exercised by the Tribunal at any stage of the proceedings.

It is a matter of common knowledge that while defending a claim petition, diverse defences are raised in the written statements by the owners and especially the insurers. However, in many cases we find that all the defences pleaded are not pressed into service at the time of final hearing. Whenever a contention is pressed into service by any of the opponents to the claim petition or the persons to whom the notice of the claim petition is issued under rule 260 that the driver of a vehicle is a necessary party, the Tribunal is under an obligation to examine the said contention and if found correct, issue a notice to the driver. It is obvious that if such contention is not pressed by the party to whom the notice is served, the said party cannot be allowed to raise the said contention for the first time in the appeal. A claimant cannot be allowed to suffer as he is under no obligation to implead any party as the opponent to the claim petition. In such a case, if the driver is aggrieved by the adverse finding recorded against him by the award of the Tribunal, he has a remedy of preferring an appeal against the award after obtaining a leave of the appellate court. If neither the owner nor the insurer raises a contention before Tribunal regarding the non-joinder of the driver, it is not open for them to contend in the appeal that driver was a necessary party and that the award is vitiated because of non-joinder of the driver. (New India Assurance Co. Ltd. vs. Sitaram Devidayal Jaiswal and others; 2012 ACJ 2647)

S.166 – Claim petition – Non-joinder of necessary party – Maintainabilities of

In the written statement the appellant as opposite party in the claim petition demanded rejection of the claim petition on ground of misjoinder of parties. PW 1, the claimant, in her evidence deposed that on 24.1.1993 the vehicle in which her husband was travelling met with an accident due to collision with a tractor-trolley and received grievous injuries on his person. The details of the said tractor-trolley have not been furnished. In the claim petition the owner and the driver of the said tractor-trolley have not been made parties. In motor accident claim cases the owner and driver of all the vehicles involved in the accident must be made parties. The owner and driver of the said tractor-trolley have not been made parties in the claim petition. The objection of the appellant/opposite party should have been considered by the learned Tribunal but it was not done so. It was necessary to do so to find out whether there was any case of rash and negligent driving by the drivers of the accident vehicles or any of the drivers either of the said vehicles and attributable to contributory negligence or fault on the part of the driver of the accident vehicles. There is a scope for remand of the case to the learned Tribunal for a fresh trial. If the owner and driver of the tractor-trolley involved in the accident, as disclosed by the claimant in her claim petition' was made party or if the particulars of the said tractor-trolley were furnished, probably the details of the said vehicle could not be collected by the claimant, but it would not be proper at this stage to pursue the matter for such details and remand the case to the Tribunal.

On consideration of the evidence on record, both oral and documentary, and upon hearing the learned counsel for the parties as well as the principle laid down by the Apex Court in the question involved in this case, I come to the conclusion that the claim petition is not maintainable and the appellant insurer has no liability to pay compensation to the claimant for the death of her husband in the alleged motor accident either as third party or as owner of the accident vehicle for want of personal life and property risk covered by any policy or contract on payment of additional premium as contemplated under the M.V. Act. (Oriental Insurance Co. Ltd. vs. Homi Rai and another; 2012 ACJ 2258)

S. 166 – Mechanical failure of motor vehicle – Witness to be relied on

In this case, Court has held that the learned counsel for the appellant has submitted that the vehicle turned turtle due to mechanical failure i.e. non-functioning of the hydraulic system in a proper manner. To appreciate the said submission, the Courts have carefully perused the material brought on record and the analysis made by the courts below. On a careful scrutiny of the same, the Court find that all the courts have placed reliance on independent witnesses as well as the testimony of PW 10, the Motor Vehicle Inspector. The manner in which the accident occurred due to detachment of the trailer from the tractor and the distance to which the tractor moved vividly reveals, that the vehicle in question was driven recklessly at a high speed. The plea of mechanical failure as put forth by the accused was not even suggested to the Inspector.

What is sought to be emphasised before the Court is that PW 3 has deposed that the accident occurred due to mechanical failure. The trial court as well as the High Court has not accepted the testimony of PW 3 as he is only an agriculturist while the other technical experts including the Motor Vehicle Inspector have deposed about the rash and negligent driving. Analysing the evidence in entirety, the learned trial Judge as well as the Appellate Judge has returned the finding as regards the rash and negligent driving. The appellate court, on further scrutiny, has found that the evidence on record clearly shows that the driver has taken the vehicle to the left side of the road and, in the process, he moved away from the main road to the “kachcha” road and thereby the link between the tractor and the trailer got detached. The High Court has opined that the accused has not taken care to see that the speed of the tractor was within limit so that the trailer could not be detached. In considered view of the court, the analysis of the factual score in this regard cannot be regarded to be perverse and, therefore, not liable to be unsettled by the Court. (Guru Basavaraj alias Benne Settappa v. State of Karnataka; (2012) 8 SCC 734)

S. 166(1)(c) – Claim application – Legal representative – Second wife, mother and first wife of deceased filed claim for his death – Mother expired and no divorce between first wife and deceased – Consideration of

A claim petition for compensation of Rs.1,50,000 was filed consequent to the death of the deceased. Hanumantha Rao in a vehicular accident on 22.7.1998. The appellant herein is the petitioner No. 1. The petitioner No. 2, who is said to be the mother of the deceased, has died and the petitioner No. 3 is the first wife of the deceased. The Tribunal after considering the material on record granted compensation of Rs.1,50,000. But, however, it refused to grant any part of the compensation to the appellant as she is not the legally wedded wife. Aggrieved by the said award, the present appeal is filed.

It is to be noted that the petition has been filed by the first wife and the second wife together before the Tribunal claiming compensation. They have no conflict of interest. It is true that there may not be legal divorce with the first wife as found by the Tribunal. But, however, while considering a claim under section 166 (1) (c) of the Motor Vehicles Act and considering the definition of legal representative, it is useful to refer to the decision in Hafizun Begum v. Md. lkram Heque, 2007 (7) SC 467, wherein it was held that the definition of legal representative has a wider meaning and one who suffers on account of the death of a person due to a motor vehicle accident is a legal representative and need not necessarily be a wife, husband, parent and child. That being so, when admittedly, the appellant is said to be living with the deceased and dependent on him and which was also admitted by the first wife, there is no reason as to why she should have been denied the right of apportionment. Furthermore, while considering the claim under section 125 of the Criminal Procedure Code, the Hon'ble Apex Court has held in Chanmuniya v. Virendra Kumar Singh Kushwaha, (2011) 1 SCC 141, that even though ·there is no valid marriage still a live-in relationship between a man and woman entitles the wife for maintenance against the husband. That being change of trend of law the award of the Tribunal in refusing apportionment does not stand for scrutiny.

Accordingly the appeal is allowed and a sum of Rs.75,000 is apportioned to the share of the appellant herein and if such amount is not available whatever amount is available as on date shall be apportioned to the share of the appellant herein. No costs. (Minisetti Nageswaramma vs. V. Ramaiah and others; 2012 ACJ 2586)

S.168 – Just compensation – Compensation were then claimed – Consideration of

The provision of compensation under the Motor Vehicles Act has been enacted, keeping in view the welfare of the victim of the vehicular accident either injured or dependants of the deceased who died in the vehicular accident. In such premises, the court is bound to see first the welfare of the claimants and that is the only paramount consideration in deciding the claim matters under the Motor Vehicles Act. The intention of the legislature to make such law is that the person concerned should get the compensation according to his/her right and entitlement. In that respect, the justice should not be lost in technicalities. Thus, keeping in view to all such aspects and the guidelines laid down by the Apex Court in the matter of he Sarla Verma, 2009 ACJ 1298 (SC), the impugned claim is being decided in the aforesaid manner. So in such premises, it is made clear that whatsoever amount is stated and claimed by claimants in their petition does not come in the way to award the claim of the appellants in accordance with law laid down by the Apex Court in the matter of Sarla Verma (supra). (Raj Kumari and others vs. Munalal Vishwakarma and others; 2012 ACJ 2367)

S. 168 - Compensation, award of - Minimum notional income for determining the amount of compensation - Held, should be Rs. 3000/- per month

This is an appeal preferred under Section 173 of the Motor Vehicles Act Against the impugned award dated 17.8.2011 passed by Motor Accident Claims Tribunal, Sultanpur, in Claim Petition No. 376 of 2010.

In brief, on 11.5.2007, at about 4.30 a.m. when deceased shailendra Singh Travelling in a vehicle Tata Sumo bearing No. 11 R 63/8798, a truck bearing No. U.P. 85 B-9793 driven rashly and negligently hit Tata Sumo in the Highway. In consequence thereof, the deceased succumbed to injury at the spot. The Tribunal had framed relevant issues with regard to accident, insurance policy, driving licence etc. and arrived to the conclusion that accident was caused by a truck bearing No. U.P. 85 B-9793 and it occurred due to rash and negligent deriving of the truck driver. With regard to income, the tribunal had recorded, finding that notional income should be taken into account while awarding compensation. Deceased was aged about 24 years and multiplier of 17 has been applied.

However, keeping in view the judgment of Laxi Devi & others Vs. Mohd.; Tubar 2008(2) T AC 394 S.C., court are of the view that compensation should be enhanced and notional income should be assessed @ Rs. 3000/- per month. One third amount is deduced in lieu of personal expanses. The net income should be Rs. 2000/- per month. Claimant is mother. Accordingly, in view of settled proposition of law and keeping in view the age of mother, multiplier of 13 is applied. Than total income should be Rs. 3,12,000/-. Rs. 4,500/- is added in lieu of funeral expanses and loss of Estate. The total compensation come to Rs. 3,16,500/-.

Accordingly, appeal is allowed. Impugned award dated 17.8.2011 is modified to the extent that appellant shall be entitled for the compensation to the tune of Rs. 3,16,500/- along with interest @ 8 per cent. The respondent Insurance Company is directed to deposit the entire compensation in terms of award keeping in view the present judgment within a period of two months. Thereafter, Tribunal shall realease the same to the claimant in terms of modified award and keeping in view the present judgment expeditiously, say within a period on next two months. Appeal is allowed accordingly. (Sona Singh and others Vs. Pooran and another; (2012 (30) LCD 2687) (All HC (LB)

S.171 – Interest – Tribunal has not allowed interest without assigning, any reason – Held, “Not justified”

Section 171 of the Motor Vehicles Act contains the provisions for payment of interest. Interest, after all, is the earning capacity of a person. When the amount is kept withheld from the claimant, it results in his loss of income capacity and it is nothing else but a recompense of the same to have an overall workout.

Ideally, the amount of compensation should be liquidated forthwith. But it is not so. Delay punctuated by several reasons accentuates the woes and misery of the claimants pushing them to further despair. Interest recompenses their otherwise unavailable money, which is made available after delay. While it is poor consolation for the recipient of a claim amount to know the reason behind the delay in receiving the payment, fact remains he or she sinks into a loss. At a loss to comprehend with the situation at the post-stage of the tragedy/ injury and as to why the money, which has been made payable but not being made available.

Element of compensation is germane in an order of interest, which is put at this stage to have an overall workout of a just compensation.

Even though it is the discretion of the Tribunal to exercise the power vested under section 171, the same has to be done in a manner which is just and reasonable. It cannot be either whimsical or capricious. In the instant case, no valid reason for failure of the Tribunal to grant interest has been assigned. We find that the appellant is a helpless poor widow with three children none of whom earns; on the contrary, the eldest son is disabled. These are factors, which cannot be rubbed out from one's mind. In our view, a prima facie case for awarding interest has been made out.

Accordingly, having regard to the hapless plight of this poor widow, we would direct the award of Rs.9,05,500 would carry an interest at the rate of 8 per cent per annum to be payable from the date of filing of the claim petition (29.8.2005) before the Tribunal (Swapna Roy and others vs. New India Assurance Co. Ltd. and others; 2012 ACJ 2264)

S.173 and Limitation Act, S. 5 – Appeal filed beyond time with application for condonation of delay and it was not decided – Effect of – So long as application for condonation of delay is not decided, the appeal cannot be said as pending

In this case court has agreed that technically what he says may be correct but an appeal filed beyond time along with delay condonation application means no appeal is pending so long as the application for condonation of delay is allowed. Therefore, the insurance company when said that no appeal has been filed, it means that in the eyes of law, no appeal was pending. So long as application under section 5 is not allowed, it cannot be said that an appeal is pending. (Ghanshyam Gupta vs. United India Insurance Co. Ltd. and others; 2012 ACJ 2289)

Ss. 173, 170, 149(2) – Motor Insurance – Appeal – Maintainability of – No permission of the Tribunal was obtained by insurance Co. U/s. 170 – Effect of – Under such circumstances appeal would not be maintainable

In this case a Claim petition was filed for payment of compensation under section 166 of Motor Vehicles Act, 1988 to the extent of Rs.13,75,000. The Tribunal framed five issues with regard to accident by the truck in question, driving licence, insurance cover and the relief with regard to payment of compensation.

Claimants-respondents have been examined. The claimants-respondents also filed post-mortem report, copy of charge-sheet and other documents with regard to criminal case. On behalf of the defendants various documents were filed which include insurance certificate, permit, national permit, chik report of case Crime No. 361 of 1995 under sections 302/392, Indian Penal Code. However, respondents did not lead any oral evidence.

The Tribunal, after considering the evidence on record, awarded compensation to the tune of Rs.2,09,800 along with interest.

While assailing the impugned order, it has been submitted the learned counsel for the appellant, that it was not a case of accidental death. Rather, the murder had been committed by truck driver to commit robbery. Submission of the learned counsel for the appellant is that since it is a murder case, with intention to commit robbery, the claimants-respondents are not entitled to any compensation.

On the other hand, learned counsel for the claimants-respondents submits that though first information report was lodged under section 302 read with section 392, Indian Penal Code but later on, it was converted to 304-A, Indian Penal Code.

Apart from the above, admittedly, no permission was obtained under section 170 of Motor Vehicles Act, 1988. Hence the appeal seems to be not maintainable in view of law laid down by the Hon'ble Supreme Court in the case of National Insurance Co. Ltd. v. Nicolletta Rohtagi,2002 ACJ 1950 (SC). In view of the above on merit as well as no permission under section 170, the appeal lacks merit.

In the case reported in Rita Devi v. New India Assurance Co. Ltd., 2000 ACJ 801 (SC), their Lordships of Hon'ble Supreme Court distinguished the simpliciter murder occurred in an incident and the accidental murder. Hon'ble Supreme Court held that if the dominant intention of an act of felony is to kill any particular person, then such killing shall not be an accidental murder but a murder simpliciter. But in case originally murder was not intended and the same was caused in furtherance of any other felonious act then such murder is an accidental murder and the claimant shall be entitled for compensation.

Appellant insurance company has not led evidence to establish that the driver of the truck was intending to kill the deceased. Burden was on the appellant to establish by leading evidence but it seems to have not been done. Accordingly the appeal is dismissed. (New India Assurance Co. Ltd. vs. Ranni and others; 2012 ACJ 2624)

S.174 and General Clauses Act, S. 3(42) – Person – Who is

Section 174 clearly provides, when an amount is due to any person under the award, if such a person moves an application, the Claims Tribunal may issue a certificate to the Collector for recovery of the said amount from the person liable to pay.

The term ‘person’ used in section 174 has been defined in General Clauses Act as under:

“‘Person’ shall include any company or association or body of individuals, whether incorporated or not.”

It includes natural and legal person both. In the award, the claimant was person entitled to recover the amount from the opposite parties in the claim petition in the manner it was directed by the Tribunal. It included the insurance company as well as the petitioner. The insurance company discharged its burden and paid the amount to the claimant. Thereafter as per direction in the award of the Claims Tribunal, the insurance company was entitled to recover the amount from petitioner, i.e., owner of the vehicle. Therefore, the insurance company’s application would also be covered by section 174 of 1988 Act. (Ghanshyam Gupta vs. United India Insurance Co. Ltd. and others; 2012 ACJ 2289)

S. 185—Drunken driving—Proof

A person who is conversant in driving a motor vehicle in the United States and European countries may not be familiar with the road conditions in India. In India, the driver is always on the defensive due to various reasons. Pedestrains in India seldom use footpaths nor respect Zebra lines or traffic lights, two wheelers, auto rickshaws, cyclists and street vendors are common sights on Indian roads. A driver on Indian roads should expect the unexpected always, therefore, the plea that the accused has an American driving licence is not an answer for driving in Indian roads unless it is recognized in India or that person is having a driving licence issued by the Licensing Authority in India. (State Tr. P.S. Lodhi Colony, New Delhi vs. Sanjeev Nanda; 2012 Cr.L.J. 4174 (SC)

Ss. 185, 203, 205—Drunken driving - Breath analyser test—Applicability of—It is applicable only when person is driving or attempting to drive vehicle and cannot be applied when driven has fled away from place of occurrence

Cumulative effect of the provisions of Ss. 203 and 205 indicate that the Breath Analyzer Test has a different purpose and object. The language of the above sections would indicate that the said test is required to be carried out only when the person is driving or attempting to drive the vehicle. The expression “while driving” and “attempting to drive” in that above sections have a meaning “in praesenti”. In such situations, the presence of alcohol in the blood has to be determined instantly so that the offender may be prosecuted for drunken driving. A Breath Analyzer Test is applied in such situations so that the alcohol content in the blood can be detected. The breach analyzer test could not be applied when the accused had escaped from the scene of the accident. Plea that when procedure has been laid to detect intoxication no finding that driver was drunk could be reached without subjecting driver to such test is not available to driver who had fled from the scene. (State Tr. P.S. Lodhi Colony, New Delhi vs. Sanjeev Nanda; 2012 Cr.L.J. 4174) (SC)

Deduction – Family pension – Whether family pension payable to family of the deceased would be deductible while determining compensation – Held, “No”.

It is true that deceased was getting Rs. 9,000 per month as pension while his wife is getting Rs.12,000 as family pension after his death. Apparently, it appears to be a gain to the wife after the death of her husband. However, on a deeper thought, it appears that the family pension increased due to implementation of report of 6th Pay Commission. Had the deceased been alive at the time of implementation of the said Pay Commission report, his pension would have been increased and would have been much above the amount of family pension being received by his widow after his death. The question, however, for decision in this case is different. (Oriental Insurance Co. Ltd. vs. Lalanwati and others; 2012 ACJ 2425)

Fatal accident – Deceased a boy aged 15 – Claimant’s mother and others – Tribunal awarded Rs. 1,66,000 but Appellate court taken into consideration be status of family and career prospects enhanced the award from Rs.1,66,000 to Rs. 2,50,000 – Validity of

The learned counsel for the appellants, contends that Arun Soni was having a shop of jewelry and his earnings were Rs.1,46,000 per annum as per the income tax return, Exh. P22, which is filed in the earlier financial year by the deceased and a subsequent income tax return, Exh. P23, for an amount of Rs.1,25,000 up to the period of death was furnished by the wife of the deceased. However, it is submitted that acceptance of the income tax return of Rs. 1,25,000 submitted by the wife is inappropriate, in fact, the earnings which was whole period of life of Rs.1 ,46,000 may be accepted and after deducting 1/3rd and applying the proper multiplier, compensation may be reasonably awarded. In the case of death of Rishi Soni aged 15 years, it is stated that looking to the brilliant career and the status of the family, adequate compensation may be awarded.

In the case of Rishi Soni, Tribunal awarded Rs.1,66,000 in total. In view of the judgment of the Apex Court in the case R.K. Malik v. Kiran Pal, 2009 ACJ 1924 (SC) and in the facts and circumstances and looking to the status of the family and his career, Rs.2,50,000 in lump sum is quantified and awarded. If we deduct Rs.1,66,000, the amount so awarded by the Tribunal, then net enhancement comes to Rs.84,000. Accordingly, in the case of death of Arun Kumar Soni enhancement of Rs.3,65,383 is directed while in the case of death of Rishi Soni enhancement of Rs. 84,000 is directed. The aforesaid amount shall carry interest at the rate of 7.5 per cent per annum from the date of filing of the claim petition till its realization. (Sadhna Soni and others vs. Dinesh Singh Bhadoria and others; 2012 ACJ 2306)

Fatal accident – Principles of assessment – Determination of income when it was not clear

Apellant filed claim petition before the Tnbunal on 29.8.2005 claiming a sum of Rs.9,05,500 as compensation. In her claim petition, she has described the age of her husband as 57 years having a business under the name and style 'M/s. A.S. Maintenance & Construction Engineers' with a monthly income of Rs. 14,000. In her claim petition, it has been stated that the deceased was both income tax and sales tax payee. The bag containing the current documents was with the deceased on the fateful period of time. Loss of the same has been reported before the concerned police station.

In her deposition, she has also claimed for compensation of Rs.9,05,500 and has stated that her husband was 57 years of age having a monthly income of Rs.14,000. She has proved the General Diary, Exh. 8, lodged by her pertaining to loss of the necessary documents. She has proved the Trade Licence (Exh. 10) issued in the name of her husband and her cross-examination reveals that the deceased used to run his business since before her marriage. It also shows that her elder son is disabled and the other two sons do not earn.

The supplementary application, which formed part of the Paper Book, contains papers relating to the business carried on by the deceased. It also reflects that the deceased was the owner of ‘M/s. A.S. Maintenance & Construction Engineers’ and various business transactions in respect of his said business. In our considered opinion, after having heard the submissions of both Mr. Chakraborty and Mr. Pahari and on perusing the evidence and other materials on record, the amount of award passed by learned Tribunal was a result of complete misinterpretation of the relevant legal position and in oblivion of the evidence and other materials on record. Whereas, clearly it has been borne out from the evidence of PW 1, widow of the deceased as also from her claim petition that there was an income of Rs.14,000 per month, which could not be discredited in her cross-examination and the supporting documents showing that the deceased was running a business and had several business deals with various departments. It was absolutely improper to have computed the income of the deceased on notional basis. (Swapna Roy and others vs. New India Assurance Co. Ltd. and others; 2012 ACJ 2264)

Fatal accident – Principles of assessment – Future prospects – Income from business – Deceased brothers were running jewelery shop along with their father as a partnership firm – Income Tax show trend of increase of income every year – Whether 25% of their income may be added for future prospects while computing loss of dependency of the claimants despite of fact they did not have permanent job – Held, “Yes”

Applying the ratio of the judgment of Apex Court in Sarla Yerma, 2009 ACJ 1298 (SC) and keeping in view the finding recorded by the learned Tribunal, the income tax returns of the deceased for the previous years and as per the definite trend of increase of income every year, it must be held that deceased, who were aged 24 and 22 years at the time of accident, even if it is noted that they did not have a permanent job, yet considering their age, it must be held that they would have definitely progressed in their careers and their income would certainly have been increased on that basis, at least 25 per cent of their income should be added under the head of future prospects. (Renu Kothari and others vs. Jogendra Singh and others; 2012 ACJ 2471)

Fatal accident – Principles of assessment and choice of multiplier – Determination of

On 29.3.2005, at around 0100 hours, whire Hernatbhai, son of respondent Nos. land 2, was going on his bicycle, at that time, the rickshaw (chhakdo) bearing No. GJ 10-T 548, driven by respondent No. 3 and insured with the appellant insurance company, in a rash and negligent manner, knocked down Hematbhai, as a result of which he sustained severe bodily injuries and succumbed to the injuries. The legal heirs of the deceased child filed claim petition, which came to be partly allowed, by way of the impugned award.

The learned counsel for the appellant submitted that the deceased was minor and income and the multiplier taken by the Tribunal is on higher side and that Tribunal has followed the structured formula as per Second Schedule to the Act mechanically and such reliance has resulted into awarding higher amount to the claimant.

As a result of hearing and perusal of the record, there is no dispute that the deceased was 13 years old.

In view of the above it is very clear that the Tribunal is not required to strictly apply the multiplier except in a case of injuries and disabilities. Even in injury or disability case multiplier of 18 has been specified. It is further evident that in case of a minor application of multiplier of 20 is just and reasonable. (National Insurance Co. Ltd. vs. Hemantbhai S. Solanki (deceased) by L.Rs.; 2012 ACJ 2501)

Fatal accident – Deceased bachelor, aged 18 years – Claimants parents – Award of compensation – Determination of

Now, coming to the facts of the case, in view of the decision of the Apex Court in the case of Sarla Verma v. Delhi Transport Corporation, 2009 ACJ 1298 (SC), in a case where the deceased is unmarried, 50 per cent of the amount of his income will have to be deducted on account of personal expenditure. In the present case, the age of the deceased was 18 years at the time of the accident. As the accident was of November 2005, notional income of the deceased has been rightly taken at Rs.2,500 per month. Thus, the yearly income was taken at Rs.30,000. The 1/2 amount will have to be deducted on account of personal expenditure of the deceased. Therefore, the multiplicand will be Rs.15,000. On the basis of the average age of the claimants/parents, multiplier of 14 has been rightly applied by the Tribunal. Adding usual amount of Rs.10,000 towards funeral expenditure, etc., the total compensation payable will be Rs.2,20,000. To that extent, the appeal will have to be allowed.

The impugned judgment and award is modified to the extent that the total compensation payable shall e Rs.2,20,000 instead of Rs.2,90,000. (New India Assurance Co. Ltd. vs. Sitaram Devidayal Jaiswal and others; 2012 ACJ 2647)

Injury – Principles of assessment – Transport expenses – Injured claimed Rs.5,000 as transport expenses but Tribunal allowed Rs.10,000 – Held “No” amount reduced to Rs.5,000.

The Tribunal, while determining just compensation, has taken into account case-Jaw on the subject and made exercise in light of the principles laid down in the reported cases referred to in the award. There is thus no merit in the case set up by appellant insurance company to question the award except with regard to assessment of compensation on account of transportation charges. There is substance in the ground urged in the appeal that the Tribunal ought not to have awarded Rs.10,000 on account of transportation charges when the respondent No. 1 had restricted the claim on said count to an amount of Rs.5,000. Reliance placed by learned Tribunal while awarding an amount of Rs.10,000 on account of transportation charges as against the claim of Rs.5,000 on law laid down in Andhra Pradesh State Road Trans. Corpn. v. M. Ramadevi, 2008 ACJ 930 (SC), is grossly misplaced. Where the compensation claimed has a reference to the actual expenditure incurred by the claimant, the Tribunal cannot, by flight of imagination, work out a different amount, claiming that the amount projected does not create any impediment in its way to make an award over and above the amount claimed. Such a course may be open, where the compensation is to be made on the basis of some guesswork or hypothetical considerations, like in case of pain and agony or loss of expectations of life but not in a case where the claimant bases his claim on the actual expenditure incurred by him. (Bajaj Allianz General Insurance Co. Ltd. vs. Anshul Verma and others; 2012 ACJ 2404)

Quantum – Fatal accident – Principles of assessment – Determination of income – Income tax returns – Whether Tribunal was justified in not accepting income tax return filed after death of the deceased as evidence of income of the deceased – Held, “Yes”

If Tribunal was justified in not accepting the income tax returns of the year 1996-97, because they were filed after the death of deceased but there was no justification for the Tribunal not to have accepted the income tax returns for the previous assessment year 1995-96. Both the income tax returns were in the own handwriting of both the deceased and were duly acknowledged by the income tax authorities. Mere non-production of the income tax assessment orders cannot be a reason for proceeding on the assumption that the income would not have been accepted by the income tax authorities. Tribunal in my considered view, in not accepting the income of the deceased for the previous assessment year 1995-96, was misled by the fact that they have declared themselves as proprietor of the firm whereas, actually Tribunal in award itself has stated that there were three partners of the firm, i.e., two sons (deceased) and their father. Income tax returns were filed separately by each one of them therefore; it denotes their individual income received by them out of the income of the firm itself. (Renu Kothari and others vs. Jogendra Singh and others; 2012 ACJ 2471)

Quantum – Injury – Injured aged 30, working partner to private firm earning Rs. 12,000 p.m. – Suffered 90 per cent permanent disablement – Injured has become a vegetative and kept able by feeding through pipes – Appellant claimed Rs.85,00,000 but Tribunal awarded Rs. 4,00,000 High Court awarded Rs.16,76,480 and Supreme Court Rs. 34,38,747

The appellant filed a petition through her husband, Deepak Singhal, under section 166 of the Motor Vehicles Act, 1988 (for short, 'the Act') for award of compensation to the tune of Rs.85,00,000 by alleging that the accident was caused due to rash and negligent driving of the truck owned by respondent No. 1 and driven by respondent No. 2. She alleged that the truck dashed against Maruti Esteem car in which she was traveling and as a result of the accident she suffered injuries to her head, mouth. Right ear and other parts of the body and consequentially she has become disabled from doing her routine work.

After recording evidence of the parties, Claims Tribunal passed award dated 5.1.2007 and ordained the respondents to pay total compensation of Rs. 4,00,000 with interest at the rate of 6 per cent per annum/Tribunal relied upon the statements of the appellant's husband Deepak Singhal, Pus hp ender Garg, who was driving the car, and two other occupants, namely, Prashant Agarwal and Renu, the charge-sheet filed in the criminal case, the confession of the driver and the judgment of the trial court and concluded that the accident took place due to rash and negligent driving of the truck. The Tribunal then considered the issue relating to quantum of compensation, referred to oral and documentary evidence and concluded that it would be just to award Rs.2,50,000 under the head of treatment, Rs.1,25,000 under the head of permanent disability and Rs. 25,000 under the head of pain and suffering.

The appellant challenged the award of the Tribunal in Miscellaneous Appeal No. 870 of 2007. During the pendency of the appeal, she filed IA No. 180 of 2010 under Order 41, rule 27 for bringing on record the bills to show that she had spent Rs.5,94,013 on treatment and as on the date of filing the application, Rs.7,76,480 had been spent on treatment.

The learned single Judge of Madhya Pradesh High Court partly allowed the appeal and enhanced the compensation by a sum of Rs.12,76,480 with interest at the rate of 7.5 per cent on the enhanced amount payable from the date of the claim petition till realization?

1n light of the principles laid down in the aforementioned cases, it is suffice to say that in determining the quantum of compensation payable to the victims of accident, who are disabled either permanently or temporarily, efforts should always be made to award adequate compensation not only for the physical injury and treatment, but also for the loss of earnings and inability to lead a normal life and enjoy amenities, which would have been enjoyed but for the disability caused due to the accident. The amount awarded under the head of loss of earning capacity are distinct and do not overlap with the amount awarded for pain, suffering and loss of enjoyment of life or the amount awarded for medical expenses.

As per the disability certificate issued on 23.8.2006, the appellant had virtually become vegetative and, therefore, she is not in a position to look after herself what to say of discharging her functions as partner of Tirupati Enterprises. Therefore, by applying the multiplier of 17, the future loss of earnings would come to Rs. 3,67,200.

In the result, the appeal is partly allowed, the impugned judgment is modified and it is held that the appellant shall be entitled to compensation under different heads of which the details are given below:

Head	Values	Calculation	Total
Medical Treatment	as awarded by the High Court		Rs. 7,76,480
Medical expenses during the pendency of the appeal	as awarded by the High Court		Rs. 50,000
Attendant charges	Rs. 2,000 per month for 25 year Rs.	Rs.2,000x12x25	Rs. 6,00,000
Future medical expenses (physiotherapy)	Rs. 3,000 per month for 25 year	Rs. 3,000x12x25	Rs. 9,00,000
Loss of earnings during the period of treatment	Rs. 2,000 monthly income for the period between date of accident 2.5.2004 and High Court order 18.5.2010	Rs.2,000x12x6 + Rs.2,000x16/30	Rs. 1,45,067
Loss of future earnings on account of permanent disability	taking multiplier of 17 for age of 30 years, disability as 90 per cent, annual income as Rs. 24,000	Rs. 24,000x17 x 90/100	Rs. 3,67,200
Physical and mental pains			Rs. 3,00,000
Loss of amenities and loss of expectation of life			Rs. 3,00,000
Total			Rs. 34,38,747

(Kavita vs. Deepak and others; 2012 ACJ 2161)

Quantum – Injury – Principles of assessment – Marriage prospects – Consideration of

The respondent No. 1 is sour that the Tribunal has not awarded any compensation on account of loss of marriage and future medical expenses. It is pleaded that the amount awarded thus does not reflect the loss suffered by claimant and cannot be held to be just compensation within the meaning of section 168, Motor Vehicles Act. The grievance as regards failure on the part of Tribunal to take into account the loss of marriage prospects is without any substance and thus unsustainable. The respondent No. 1 has not in his claim petition laid claim to compensation on account of loss of marriage prospects. The Tribunal, obviously, was not expected to look into the said aspect of the case and proceed ahead to determine the compensation on account of loss not so projected by respondent No. 1. (Bajaj Allianz General Insurance Co. Ltd. vs. Anshul Verma and others; 2012 ACJ 2404)

BACK TO INDEX

Negotiable Instruments Act

Ss. 7 & 141—Drawer—Scope

Section 7 of the Act defines “drawer” to mean the maker of a bill of exchange or a cheque. An authorized signatory of a company becomes a drawer as he has been authorized to do so in respect of the account maintained by the company. (Aneeta Hada vs. Godfather Travels and Tours Pvt. Ltd.; (2012) 3 SCC (Cri) 241)

S. 138—Compared with offence under S. 420 IPC—Held, not the same (See Constitution of India, Art 20(2)

In Kolla Veera Raghav Rao vs. Gorantla Venkateswara Rao, (2011)2 SCC 703, is concerned. It has been held therein that once the conviction u/s. 138 of the NI Act has been recorded, the question of trying the same person u/s. 420 IPC or any other provisions of IPC or any other statute is not permissible being hit by Article 20(2) of the Constitution and Section 300(1) CrPC.

Admittedly, the appellant had been tried earlier for the offences punishable under the provisions of Section 138 of the NI Act and the case is sub judice before the High Court. In the instant case, he is involved u/ss. 406/420 read with Sec/ 114 IPC. In the prosecution u/s. 138 of the NI Act, the mens rea i.e. fraudulent or dishonest intention at the time of issuance of cheque is not required to be proved. However, in the case under IPC involved herein, the issue of mens rea may be relevant. The offence punishable u/s. 420 IPC is a serious one as the sentence of 7 years can be imposed.

In the case under the NI Act, there is a legal presumption that the cheque had been issued for discharging the antecedent liability and that presumption can be rebutted only by the person who draws the cheque. Such a requirement is not there in the offences under IPC. In the case under the NI Act, if a fine is imposed, it is to be adjusted to meet the legally enforceable liability. There cannot be such a requirement in the offences under IPC. The case under the NI Act can only be initiated by filing a complaint. However, in a case under IPC such a condition is not necessary. (Sangeetaben Mahendrabhai Patel vs. State of Gujarat; (2012) 3 SCC (Cri) 445)

S. 138—Complaint under—Determination of jurisdiction—Place of receipt of demand notice is determinative of place at jurisdiction and not place at which notice was posted or dispatched

The expression “giving notice in writing” and “receipt of the said notice” in proviso (b), (c) to Section 138 of the Act is to be interpreted as having reference to the place where the notice is received by the drawer of the cheque and he fails to make the payment within 15 days from the date of such receipt. Such interpretation would assume importance where the place of dispatch of notice and the place of receipt of notice are two different jurisdictional areas, two different towns or cities. In such a case, the ‘material event’ takes place at the place where the demand notice is received by the drawer. It is the place of receipt of notice that is determinative of the jurisdiction of the court and not the place at which the notice was posted or dispatched. (Imtiyaz Ahmad Bhat vs. FIL Industries Ltd.; 2012 Cr.L.J. 4091 (J & K)

S. 138—Dishonour of cheque—Notice of demand has to be issued within 30 days beyond this limit complaint would not be maintainable

Notice was however given beyond 30 days of knowledge of dishonor of cheque. So complaint is not maintainable and impugned order of summoning and proceedings pursuant thereto are liable to be quashed. (Dheeraj Jain vs. State; 2012 Cr.L.J. (NOC) 496 (Del)

S. 138 – Dishonour of cheque – Separate sentence for default in payment of compensation – Justifiability of

The respondent complainant alleged that he had given Rs. 5,00,000 to the appellant-accused and his wife by executing a promissory note (Ext. P-1) and in turn he had been given a cheque. As the appellant-accused had failed to repay the loan amount, a cheque was presented and it was dishonoured for insufficiency of funds. After completion of trial, the appellant-accused was sentenced. The trial court further directed him to pay compensation to the respondent complainant and imposed separate sentence for default of payment of compensation. The Sessions Court confirmed the order of the trial court while the High Court confirmed the sentence imposed on the appellant accused but it set aside separate sentence for default of payment of compensation.

Allowing the appeal of the complainant, the Supreme Court has held that the appellant-accused did not lead any evidence to show that the promissory note (Ext. P-1) was a got-up document nor did he take such stand anywhere in his reply to the notice. The stand of the appellant-accused that he had taken only Rs. 3,00,000 as loan was rejected in view of the promissory note. The respondent complainant was running a chit fund scheme and he had financed the appellant-accused several times before. Entries made by the respondent complainant in the diary (Ext. D-1) maintained by the appellant-accused related to transactions pertaining to the chit fund scheme and not related to Rs. 5,00,000 given by the respondent complainant. Moreover, the respondent complainant admitted that it was his handwriting in the dairy, Ext. D-1 and thus he turned out to be truthful witness. The appellant-accused nowhere in his reply stated that only Rs. 90,101 was outstanding. Therefore, the claim of the appellant-accused that only Rs. 90,101 was outstanding balance was rejected. The income tax records summoned by the High Court indicate that returns filed by the respondent complainant showed that a sum of Rs. 5,00,000 was due from the appellant-accused.

As imposition of separate sentence would secure the very object of payment of compensation, hence the conviction and sentence and further imposition of sentence on the appellant-accused for default in payment of compensation was justified. (R. Mohan v. A.K. Vijaya Kumar; (2012) 8 SCC 721)

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Payment of Gratuity Act

Ss. 2(A) (1) & 4(1)(b) – Gratuity - As per revised pay - Payment of - If case of petitioner is that he was in service till 1997 - And revised pay scale as per 5^th Central Pay Commission is applicable w.e.f. 1.1.1996 -Then there is no point not to give him the arrear on the gratuity for service the petitioner rendered with respondents - He is entitled for the revised gratuity - Direction issued accordingly - To calculate and pay gratuity with 8% interest

In section 4(1) (b) it is prescribed that Gratuity shall be payable to an employee on the termination of his employment after he has rendered continuous service for not less than five years, on his retirement or resignation.

If case of the petitioner is that he was in service till 1997, and the revised Pay Scale as per 5^th Central Pay Commission is applicable w.e.f 1.1.1996, then there is no point not to give him the arrear on the gratuity for the service the petitioner rendered with the respondents.

Accordingly, in view of the above discussion, respondents are directed to calculate the gratuity of the arrear as applicable as per the Central 5^th Pay Commission and disbursed the same to the petitioner within four weeks from today. (A.K. Mitra Vs. Union of India and others; (2012 (135) FLR 115) (Delhi High Court)

Ss. 2 (e) and (f), 1 (b) (c), and s. 4 - Claim of Gratuity - By a clerk in a temple on attaining the age of superannuation - The question is no more res integra - Whole temple comes under the purview of establishment - Therefore the clerk working in a temple is entitled for payment of gratuity

The question in this appeal is no more res integra in view of the Division Bench judgement of Orissa High Court in the matter of Administrator Shree Jaganath Temple, Puri v. Jagannath Padhi and others, 1992 (65) FLR 946, Wherein their Lordships have ruled that whole temple would come under the purview of the establishment, therefore it was held that the clerk or a manager who was working in a temple is entitled for payment of gratuity. (Management of Sri Venkararaman Temple and Sri Hale Mariyamma Tempe, Kapu Vs. Dy. Labour Commissioner and the Appellate Authority under Payment of Gratuity Act and others; (2012 (135) FLR 730) (Karnataka High Court)

S. 2(s) – Wages - Ad hoc payment - Made to appellants under interim order of Apex Court - Cannot be included - For purpose of wages within meaning of section 2(s) of Act - Cannot be treated as part of wages - Any amount of gratuity paid in excess cannot be adjusted

Ad hoc payment made to the appellants under interim order of the Apex Court dated 18.8.2000 cannot be included for the purposes of Wages within the meaning of section 2(s) of the Payment of Gratuity Act, 1972, which was apparently not paid to the appellants “in accordance with the terms and conditions of their employment.”

Once the petition was dismissed, the effect of dismissal was that interim order stood merged in the final order and stood nullified. An interim order is granted to protect the interest of a party approaching the Court till the same is adjudicated finally. It is temporary in nature and it is made in the meantime.

Amount paid to the appellants as an ad hoc measure pursuant to an interim order dated 18.8.2000 cannot be treated to be part of “Wages” within the meaning of section 2(s) of the Payment of Gratuity Act, 1972 as the interim order of the Supreme Court merged in the final order, rejecting the claim of these appellants.

There is no question of adjustment/recovery of any amount of gratuity paid in excess to these appellants. Keeping in view the chequered history of the case, I feel it appropriate to direct the appellants not to recover any amount, if already paid to these appellants in excess by taking into account the ad hoc amount paid as “Wages”, while calculating admissible gratuity. (Surendra Pathak and others Vs. Hindustan Fertilizer Corpn. Ltd.; (2012 (135) FLR 819) (Patna High Court)

S.4—Applicability of—Payment of Gratuity Act - Would not be applicable in Cooperative Societies Act

Having regards to the facts and circumstances of the case, Court of the view that from the various judgments what emerges is that the U.P. Cooperative Societies Act, 1965 is a self contained Act and it excludes the jurisdiction of all other labour law such as Industrial Disputes Act and Payment of Gratuity Act etc. (Brahmawarta Commercial Cooperative Bank Ltd. vs. Presiding Officer, Industrial Tribunal III, U.P., Kanpur; 2012 (5) ALJ 626)

Ss. 4 & 2(e) – Gratuity - Payment of - Contractual employee - Regular employees have worked for more than 240 days and were in continuous employment - Such factual finding of controlling authority as confirmed by appellate authority against the very same petitioner in accordance with law - They are held employees of petitioner-society and has rendered continuous service to become eligible for gratuity under the Act

Since the order of the controlling authority as confirmed by the appellate authority against the very same petitioner is in accordance with the provisions of the Act, I am of the view that the writ petition filed challenging the order of the appellate authority is without any factual and legal basis. Since the have clearly came to the conclusion that the respondents 2,4 and 5 are employees of the petitioner-society and rendered continuous service to become eligible for gratuity under the Payment of Gratuity Act, this Court is not inclined to interfere with the order of the first respondent confirming the order of the second respondent. Finding no infirmity or irregularity in the orders under challenge, the writ petition stands dismissed. (Tiruchengode Agricultural Producers Co-op. Marketing Society Vs. Appellate Authority under the Payment of Gratuity Act and others; (2012 (135) FLR 270) (Mad HC)

S. 4 (5) – Gratuity - Payment of - Determination of amount - Controlling authority and appellate authority took the basic pay and number of years of service in calculating the gratuity - Has not referred the settlement between the Corporation and its employees - Gratuity claimed in terms of settlement - Hence, the matter requires reconsideration by the authority in view of settlement - Only such portion of D.A. as per the settlement has to be added - Gratuity is to be paid under the settlement and strictly in accordance with the settlement

Neither the Controlling Authority nor the Appellate Authority has referred to the settlement between the Corporation and its employees. Admittedly, the payment of gratuity claimed by the petitioner is not in terms of the provisions of the Payment of Gratuity Act, but in terms of the settlement. The contention of the learned Counsel for the petitioner that the Dearness Allowance means, the Dearness Allowance paid last to the employee. However, neither under the Payment of Gratuity Act nor under the settlement, there is any provision made that the entire Dearness Allowance to be added to the basic pay, but the merger of Dearness Allowance was as per the decision of the State Government taken from time to time. In such an event, if there is already merger of Dearness Allowance, if in addition to the same again the Dearness Allowance is added as on the date of retirement, that would become double addition of Dearness Allowance. Only such portion of the Dearness Allowance as per the settlement has to be added and not the entire Dearness Allowance.

The matter requires re-consideration by the Controlling Authority and the Controlling Authority has to take into consideration the settlement arrived between the Corporation and its employees in the matter of payment of gratuity and based on the same, the gratuity has to be determined. It is made clear that the employee, either he has to choose the payment of gratuity under the provisions of the Payment of Gratuity Act or has to choose under the settlement, but he cannot choose best of both. Hence, if the gratuity is to be paid under the settlement, it must be strictly in accordance with the settlement. (B. Yoga Nandam Vs. Divisional Controller, K.S.R.T.C., Tumkur Division and others; (2012 (135) FLR 416) (Karnataka High Court)

S. 7(7) - Payment of Gratuity (Central) Rules, 1972 - Rules 11 (4) and 17 - Difference of gratuity - Claimed and allowed by controlling authority - Directed the corporation to pay the amount with interest by order dated 12.3.2009 - Petitioner was not informed - Though it was mandatory for authority to inform him - Petitioner applied for certified copy of order on 25.5.2009 and same was furnished to it on 15.9.2009 - Hence the appeal filed by Corporation on 26.10.2009 which was well within period of limitation as per section 7(7) of Act

When the limitation prescribed under section 7(7) of the Payment of Gratuity Act, 1972 is examined, it could clearly go to show that certified copy of the order dated 12.3.2009 was furnished to Corporation on 15.9.2009 and appeal in question was required to be filed within 60 days from the date of receipt of certified copy of the order i.e., on or before 14.11.2009 i.e., excluding copying delay (From 25.5.2009 to 15.9.2009). Admittedly, in the instant case, appeal in question has been filed on 26.10.2009, which was well within the period of limitation as prescribed under section 7(7) of the Act.

Appellate Authority committed a serious error in dismissing the appeal on the ground of delay without going into merits and as such impugned order cannot be sustained. (Karnataka State of Road Transport Corporation Vs. Deputy Labour Commissioner and others; (2012 (135) FLR 48) (Karnataka High Court)

Gratuity - Adjustment of amount due as rent - Payment of Gratuity ordered by controlling authority - Which is upheld by appellate authority - However petitioner employer is allowed to adjust the penal rent due on employee, for period of unauthorised occupation of his quarter from dues of employee’s gratuity - Payment of Gratuity Act, 1972

In view of the aforesaid decision of the Hon’ble Supreme Court of India, the petitioner-employer is allowed liberty to adjust the penal rent due to the employee-respondent No. 3 for the period of unauthorized occupation of his quarter from the outstanding post retirement dues of the employee’s gratuity amount awarded by the impugned order. (Project Officer Vs. Regional Labour Commissioner (Central)-cum-Appellate Authority under Payment of Gratuity Act, Dhanbad and others; (2012(135) FLR 667) (JharKhand High Court)

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Practice and Procedure

Failure of Justice – Defining of – Occasioned not only by wrong conviction but also by acquittal

The ‘failure of justice’ is an extremely pliable or facile expression, which can be made to fit into any situation in any case. The court must endeavour to find the truth. There would be ‘failure of justice’; not only by unjust conviction, but also by acquittal of the guilty, as a result of unjust failure to produce requisite evidence. Of course, the rights of the accused have to be kept in mind and also safeguarded. but they should not be over emphasised to the extent of forgetting that the victims also have rights. It has to be shown that the accused has suffered some disability or detriment in respect of the protections available to him under Indian Criminal Jurisprudence ‘Prejudice’, is incapable of being interpret in its generic sense and applied to criminal jurisprudence. The plea of prejudice has to be in relation to investigation or trial, and not with respect to matters falling outside their scope. Once the accused is able to show that there has been serious prejudice caused to him, with respect to either of these aspects, and that the same has defeated the rights available to him under jurisprudence. (Darbara Singh vs. State of Punjab; 2012(6) Supreme 584)

Faliure of Justice – When Occurs?

The court must endeavour to find the truth – There would be ‘failure of justice’ not only by unjust conviction but also by acquittal of the guilty, as a result of unjust failure to produce requisite evidence – Of course, the rights of the accused have to be kept in mind and safeguarded but they should not be over emphasised to the extent of forgetting that the victims also have rights. (Bhimanna vs. State of Karnataka; 2012(6) Supreme 535)

Power of Attorney – Rights of power of Attorney strictly governed by terms contained in need of power of attorney

A power of attorney has to be strictly construed. In order to agree to sell or effect a sale by a power of attorney, the power should also expressly authorize the power to agent to execute the sale agreement/sale deed i.e. (a) to present the document before the Registrar; and (b) to admit execution of the document before the Registrar. From the date the power of attorney is executed by the principal in favour of the agent and by virtue of the terms, the agent derives a right to use his name and all acts, deeds and things done by him are subject to the limitations contained in the said deed. The power-of-attorney holder executes a deed of conveyance in exercise of the power granted under it and conveys title on behalf of the grantor. The power of attorney, in the present case, only authorises certain specified acts but not any act authorising entering into an agreement of sale or to execute sale deed or admit execution before the Registrar. (Church of Christ Charitable Trust & Educational Charitable Society v. Ponniamman Educational Trust; (2012) 8 SCC 706)

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Prevention of Corruption Act

S. 7—Bribery—Proof of

On the merits of the case, learned counsel made several submissions. It was submitted that there is nothing on record to suggest that Syed Ahmed made any demand for gratification or received and accepted any illegal gratification.

This contention does not appeal to us, particularly in view of the unshaken testimony of Nagaraja (PW1) and the corroborative evidence of the eye-witness Sidheshwara Swamy (PW2). This witness was near the window and just outside the room occupied by Syed Ahmed. He refers to some conversation that took place between Syed Ahmed and Nagaraja in a low tone and which he could not hear. Thereafter, this witness specifically states that Syed Ahmed asked Nagaraja if he had brought what he was told to bring. Nagaraja replied in the affirmative and thereupon Nagaraja gave the tainted currency noted to Syed Ahmed, which he accepted. Thereafter, Syed Ahmed kept the tainted currency notes in a purse which was then placed in the pocket of his trousers hung on the wall. There is, therefore, a clear statement of Sidheshwara Swamy (PW2), which has not been shaken in cross-examination, to the effect that there was a demand for some gratification by Syed Ahmed from Nagaraja and that Nagaraja paid some money to Syed Ahmed by way of gratification. The ingredients of Section 13(1)(d) of the Act are fulfilled in this case and have been proved beyond any doubt.

We agree with the High Court that in view of Explanation (d) to Section 7 of the Act, the issue whether Syed Ahmed could or could not deliver results (as it were) becomes irrelevant in view of the acceptance of the testimony of Nagaraja (PW1) and Sidheshwara Swamy (PW2).

The next two submissions of learned counsel were to the effect that a currency note of Rs. 10/- recovered from the wallet of Syed Ahmed and indeed the wallet also were not sent for forensic examination to ascertain the presence of phenolphthalein powder. Moreover, there is nothing on record to indicate what eventually happened to that currency note.

We cannot see relevance of these submissions. What we are concerned with is whether Syed Ahmed had demanded illegal gratification from Nagaraja and whether he had received and accepted that illegal gratification. The tainted currency notes given to Syed Ahmed as illegal gratification are material and not the untreated Rs. 10/- currency note or the wallet in which all the currency notes were kept. These are minor issues that have no real bearing on the controversy on hand.

On this basis, it is submitted by learned counsel that there is a discrepancy in the testimony of the witnesses with regard to the dress worn by Syed Ahmed when he was sought to be trapped. it is submitted by learned counsel that the discrepancy casts a doubt on the correctness of the events said to have taken place on 28^th June, 1993 and the benefit of this must go to Syed Ahmed.

In our opinion, the discrepancy with regard to the attire of Syed Ahmed the Rs. 10/- currency note and the forensic examination of the wallet are rather minor matters. What is a minor discrepancy? It was held that a discrepancy would be minor if it did not affect the substratum of the prosecution’s case or impact on the core issue. In such an event, the minor discrepancy could be ignored.

It is while undertaking this exercise that we find from the evidence of the witnesses that there was sufficient evidence of Syed Ahmed demanding illegal gratification from Nagaraja and receiving and accepting it when given by him. On this basis, we find no reason to interfere with the judgment and order under appeal. (Syed Ahmed vs. State of Karnataka; 2012 Cr.L.J. 4017 (SC)

Ss. 7 & 13 – Plea of leniency or sympathy by accused – Held, not tenable as in serious cases showing mercy may send wrong signals

The complainant, a drug store owner, admitted a lady whom he considered as his aunt for surgery in the government hospital. Respondent 1-accused demanded Rs. 5000 as bribe from the complainant for treating her. The complainant approached the Anti-Corruption Bureau and Respondent 1-accused was trapped after recording on cassette his conversation with the complainant pertaining to the demand of illegal gratification for treatment of the lady. The High Court quashed the FIR on ground of grudge between the complainant and Respondent 1-accused related to irregularities committed by the complainant in his drug store and on the strength of affidavits submitted by some witnesses supporting Respondent 1-accused. (State of Rajasthan v. Rajkumar Agarwal; (2012) 8 SCC 616)

Fraud - Negligence - Charges of various irregularities of negligence in duty, causing loss to Bank - Detailed enquiry held and found guilty - Criminal case also started and acquitted by Magistrate - Urges to drop departmental case also - Acquittal does not involve exoneration in department case

The conduct of the criminal trial was in the hands of the prosecuting agency. Having registered the First Information Report, the Bank had little or no role to play, apart from rendering assistance to the prosecuting agencies. In our opinion, the failure of the prosecution in producing the necessary evidence before the trial court can not have any adverse impact on the evidentiary value of the material produced by the Bank before the Inquiry Officer in the departmental proceedings.

The findings recorded by the Enquiry Officer cannot be said to be based on no evidence. In such circumstances, the appellant cannot take any advantage of the findings of innocence recorded by the criminal court. The ‘clean chit’ given by the learned Magistrate was influenced by the failure of the prosecution to lead the necessary evidence. No advantage of the same can be taken by the appellant in the departmental proceedings.

Court has further observed as below-

1. Departmental and criminal proceedings can be simultaneous.

2. In criminal case crime is important, in departmental case misconduct is important.

3. Acquittal in criminal case does not mean exoneration in departmental case also.

(Avinash Sadashiv Bhosale (D) vs. Union of India; 2012(3) AISLJ 392)

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Probation of Offenders Act

Ss. 3 and 4—Penal Code, S. 304-A—Benefit of probation—Convict held for causing death by rash and negligent act—It cannot be claimed as matter of right

The issue of award of probation to the petitioner, it may be reiterated that due to rash and negligent action of the petitioner an innocent person lost his life without any fault on his part. There is no possible justification for being casual and indifferent to the safety of public by such drivers.

Further, from the perusal of the impugned judgment of the Appellate Court, it can be seen that the benefit of probation has not been extended to the petitioner considering the seriousness of the offence committed by him. The Apex Court in Commandant, 20^th Battalion, ITB Police vs. Sanjay Binjola, 2001 CrLJ 2349 has enunciated the cases where such benefit should not be extended in the following words:

“9……. It is true that nobody can claim the benefit of Sections 3 and 4 of the Probation of Offenders Act as a matter of right and the court has to pass appropriate orders in the facts and circumstances of each, case having regard to the nature of the offence, its general effect on the society and the character of the offender, etc. There are laws which specifically direct that the provisions of Probation of Offenders Act shall not apply to the persons convicted for those offences and there may be cases under other laws as well which may not justify the exercise of the powers of Probation of Offenders Act. Even apart from such exclusions the courts should be wary of extending the benefit of Probation of Offenders Act to offences relating to corruption, narcotic drugs, etc. This Court has indicated in Dalbir Singh vs. State of Haryana, 2000 CrLJ 2283 that benefit of Probation of Offenders Act should not normally be afforded in respect of the offences under Sections 304A IPC when it involves rash or negligent driving. These are instances for showing how the nature of the offence could dissuade the court to give the benefit. (Meghna Singh vs. State; 2012 Cr.L.J. 4930 (Del.)

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Protection of Women from Domestic Violence Act

S. 17—Shared household accommodation—Consideration of

Court has observed that Section 2(f) of the Act which defines the “domestic relationship” is reproduced hereunder:-

“Domestic relationship means a relationship between two persons who live or have, at any point of time, lived together in a shared household, when they are related by consanguinity, marriage, or through a relationship in the nature of marriage, adoption or are family members living together as a joint family.”

Section 17 of the Act which provides right to reside in a share hold house is reproduced hereunder:--

“Right to reside in a shared household. (1) Notwithstanding anything contained in any other law for the time being in force, every other law for the time being in force, every woman in a domestic relationship shall have the right to reside in the shared household, whether or not she has any right, title or beneficial interest in the same.

(2) The aggrieved person shall be evicted or excluded from the shared household or any part of it by the respondent save in accordance with the procedure established by law.”

From a perusal of the definition of “domestic relationship” it is absolutely clear that the revisionist No. 1 along with his wife opposite party No.2 as per material available on record had lived together in the said house in a joint family along with her husband revisionist No.2 after the marriage and during festivals etc., hence in view of Section 17 of the Act, the opposite party No.2 has a right to reside in a share household which also belong to her husband, revisionist No.1 along with his father revisionist No.2 who is a family member living together as joint family.

In view of the above, Court of the opinion that the lower appellate has allowed the appeal of opposite party No.2 with a well reasoned order and has rightly set aside the order of Chief Judicial Magistrate and directed that the opposite party No.2 be allowed to live in the house in question being a joint family house of revisionist No.2 of which her husband is also a member. (Nishant Sharma vs. State of U.P.; 2012 (5) ALJ 571)

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Provincial Small Causes Court Act

Section 23 - Return of plaint - To be presented before regular Court - Question of title involved Sustainability of

This writ petition is directed against the order dated 11.12.2009 passed by Judge, Small Cause Court, Ghaziabad in S.C.C. Suit No. 15 of 2004 returning the plaint in purported exercise of power under Section 23 of Provincial Small Cause Courts Act, 1887 expressing the view that in the present case question of title has to be decided in order to grant relief to plaintiff-landlord and, therefore, the suit must be filed in regular court and should be not tried by Small Cause Court. The aforesaid view of Trial Court has been confirmed by Revisional Court by means of another impugned order dated 19.05.2011, whereby the Revisional Court has rejected petitioner's Revision No. 5 of 2010.

Both the courts below found that the tenant has come up with a case that he is not the tenant but residing in the accommodation in question in his capacity as owner and has adduced certain evidence also in support thereof. The courts below after considering the evidence, prima facie have found that issue of title is necessary to be decided before granting any relief to petitioner-landlord and in that view of the matter the plaint has been returned to petitioner so as to be presented in appropriate court dealing with the matter on regular side.

Learned counsel for the petitioner submitted that it is not obligatory on the part of Small Cause Court to return the plaint but it can also decide the said issue incidentally. The proposition by itself has no exception but where the Small Cause Court found that issue of title is necessary to be decided, Section 23 contemplates that such an issue be adjudicated by a regular court and not by Small Cause Court. Hence where discretion has been exercised by Small Cause Court by returning the plaint, in such a matter, so as to enable the plaintiff to file suit in regular court, the same cannot be faulted. (Shamshad Ahmad vs. Abdul Hameed; 2012(3) ARC 683 (All HC)

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Registration Act

S. 17—As amended by S. 3 of Registration and other related Laws Amendment Act (48 of 2001) S. 49 [As amended by S. 6 of Registration and Other Related Laws Amendment Act (48 of 2001)]—Registration of agreement to sell immovable property for a purpose of claiming right under S. 53-A of T.P.A.—Consideration of

By Section 10 of this amending Act, Section 53-A of Transfer of Property Act has been amended as follows:-

10. Amendment of Section 53-A of Act 4 of 1882—In Section 53-A of the Transfer of Property Act, 1882, the words “the contract, though required to be registered, has not been registered, or,” shall be omitted.

Thus, w.e.f. 24.9.2001, even for the purposes of claiming right under Section 53-A of the Transfer of Property Act, an agreement to sell is required to be a registered. Documents being unregistered are not admissible in evidence in view of Section 49 of the Registration Act. As in this case, documents were allegedly executed on 12.6.2009 and 15.11.2009, therefore, the case laws relied upon by the counsel for the appellant are not applicable in this case. (Subhash Verma vs. Narendra Kumar; 2012 (5) ALJ 686)

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SC/ST (Prevention of Atrocities) Act

Section 3 (1) (x) - Offence under - Essential ingredients

Following are the essential ingredients to constitute the offence under S. 3 (I) (x) of SC/ST/ Act:

(1) Accused is not a member of the Scheduled Caste or Scheduled Tribes.

(2) The complainant is a member of Scheduled Caste or a Scheduled Tribes.

(3) The complainant was intentionally insulted or intimated by accused with intent to humiliate him in a place within a public view. The intentional act of insult or intimidation must be by uttering “cast specific” words against the complainant.

Section 323, Cr.P.C. thought empowers to the Magistrate to commit the case to the Court of Session at any stage of inquiry into or trial, even it is not exclusively triable by the Court of Session, if he is of the view that the case ought to be tried by the Court of Session. The power under Section 323, Cr.P.C. is discretionary, but the discretion has to be exercised in the judicious manner not arbitrarily. The Magistrate has to explain as to how it appears to him that the case is one which ought to be tried by the Court of Session. The reasoning must be based on material on record, not whimsical. (Prem Das vs. State of U.P.; 2012(6) ALJ 730 (All HC)

S. 18 – CrPC, S. 438 – Bar to grant of anticipatory bail

Section 18 of the SC/ST Act creates a bar for invoking Section 438 of the Code. However, a duty is cast on the Court to verify the averments in the complaint and to find out whether an offence under Section 3(1) of the SC/ST Act has been prima facie made out. In other words, if there is a specific averment in the complaint, namely, insult or intimidation with intent to humiliate by calling with caste name, the accused persons are not entitled to anticipatory bail. While considering the application for bail, scope for appreciation of evidence and other material on record is limited. Court is no expected to indulge in critical analysis of the evidence on record. When a provision has been enacted in the Special Act to protect the persons who belong to the Scheduled Castes and the Scheduled Tribes and a bar has been imposed in granting bail under Section 438 of the Code, the provision in the Special Act cannot be easily brushed aside by elaborate discussion on the evidence. (Vilas Pandurang Pawar v. State of Maharashtra; AIR 2012 SC 3316)

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Service Laws

Appointment - Appointment in excess of advertise number of posts – Not permissible

Since a select list of 27 persons was duly notified as per Rules of 2001, after candidates from Sr. No. 1 to 17 were appointed as regular ADJs on 15.12.2001 the select list came to an end because as per the affidavit filed on behalf of the High Court though vacancies were not mentioned in the advertisement only 13 posts of ADJs were available on the date of advertisement i.e. on 23/05/ 2001 and 17 posts of ADJs were available on the date of recommendation i.e. on 20/10/ 2001. On the appointment of 17 regular ADJs, the selection process for appointment of regular ADJs came to an end. The unexhausted select list was wrongly used for appointment of 10 FTC Judges. Again, out of list of unsuccessful candidates, 15 persons were appointed as FTC Judges. Their names were not there in the select list. The whole procedure was irregular.' Reliance placed by the High Court in the impugned judgment of this Court in Rakhi Ray v. High Court of Oelhi³² [(2010) 2 SCC 637] and Surinder Singh v. State of Punjab [(1997) 8 SCC 488] is apt. It must be mentioned at the cost of repetition that on 23/05/2001 when the advertisement was issued, the posts for FTCs were not sanctioned. Therefore, these posts were not even in contemplation. They cannot be termed as vacancies contemplated or anticipated by the High Court. Undoubtedly, the correspondence between the Law Ministry and the High Court indicates that the High Court was informed about the need for creation of FTCs and that Fast Track Court Scheme may be brought into action in Jharkhand but, till the posts for FTCs were sanctioned, there was no question of taking into account any anticipated vacancies. When advertisement is for specific number of posts, the State cannot appoint more than the number of posts advertised. The select list gets exhausted when all the advertised posts get filled. In Rakhi Ray and in a long line of other cases to which reference need not be made, this Court has clarified that appointments beyond the number of posts advertised would amount to filling up future vacancies and the said course is impermissible in law. There is no substance in the contention that appellants were appointed under Rule 4(a) of the Rules of 2001 or that they can get advantage of Rule 25 thereof. The Rules of 2001 and the regulations which are meant for Jharkhand Superior Judicial Service do not apply to ad hoc ADJs appointed under a scheme of temporary duration like Fast Track Court scheme. The Rules of 2001 were not amended to make them applicable to FTCs. The appellants were appointed in ex-cadre post for a temporary period. This is clear from their appointment letters. Therefore, their appointments were not under Rules of 200l. Merely because they were made to take written examination and viva voce their appointments cannot be termed as substantive appointments nor can the nature of work done by them make their appointments substantive. (Mahesh Chandra Verma v. State of Jharkhand & Ors.; 2012 (6) Supreme 647)

Compassionate Appointment - Constitution of India, Article 16 – Claim for – Compassionate appointment cannot be claimed as a matter of right

It is a settled legal proposition that compassionate appointment cannot be claimed as a matter of right. It is not simply another method of recruitment. A claim to be appointed on such a ground, has to be considered in accordance with the rules, regulations or administrative instructions governing the subject, taking into consideration the financial condition of the family of the deceased. Such a category of employment itself, is an exception to the constitutional provisions contained in Articles 14 and 16, which provide that there can be no discrimination in public employment. The object of compassionate employment is to enable the family of the deceased to overcome the sudden financial crisis it finds itself facing, and not to confer any status upon it. (State of Gujarat & Ors. v. Arvind Kumar T. Tiwari & Anr.; 2012 (6) Supreme 705)

Court proceedings and State Bank of India Officers Service Rule, 1992 – Appellant prosecuted departmental proceedings could not have been continued simultaneously - Appeal dismissed

Charges against appellant in the criminal trial related to commission of criminal offences under Sections 120(B), 420, 467, 468, 471 and 201 of IPC. In the departmental proceedings, basic charge was that appellant whilst posted as a Branch Manager failed to discharge his duties with utmost integrity, honesty, devotion and diligence to ensure and protect the interest of the Bank and acted in a manner unbecoming of a Bank Officer. It could not be said that because appellant had been prosecuted, departmental proceedings could not have been continued simultaneously. (Avinash Sadashiv Bhosale (D) Thr. Lrs.; 2012(6) Supreme 48)

Constitution of India – Art. 16 – Appointment Eligibility – Different from qualification

The eligibility for the post may at times be misunderstood to mean qualification. In fact, eligibility connotes the minimum criteria for selection, that may be laid down by the executive authority/legislature by way of any statute or rules, while the term qualification, may connote any additional norms laid down by the authorities. However, before a candidate is considered for a post or even for admission to the institution, he must fulfil the eligibility criteria. (State of Gujarat v. Arvind Kumar T. Tiwari; AIR 2012 SC 3281)

Art. 16 - Irregularity in pay fixation - Excess payment made to employees can be recovered, recovery cannot be limited only to case of fraud or misrepresentation

Any amount paid/received without authority of law can always be recovered barring few exceptions of extreme hardships but not as a matter of right. In such situations law implies an obligation on the payee to repay the money, otherwise it would amount to unjust, enrichment. Recovery of excess paid public money cannot be limited only to case of fraud or misrepresentation. Concept of fraud or misrepresentation is not applicable to such situation. Excess payment made to teachers/principals due to wrong pay fixation is liable to be recovered. Moreso when there was clear stipulation in the fixation order that in case of wrong/irregular fixation the institution in which the employee works would be responsible for recovery of over payment made. (Chandi Prasad Uniyal and Ors. V. State of Uttarakhand and Ors.; 2012 (6) ALJ 208)

Art. 16 - Compassionate Appointment civil death of Government Servant - Applicability of U.P. Recruitment of Dependents of Government Servant in Dying-in-Harness Rules on civil death - Held, Rules would have overriding effect

In this case, the appointment has not been offered to the petitioner for the reason that in view of the Government order dated 9^th December, 1998 and the Circular dated 27^th August, 2007 the dependents of those Government servants, whose death is presumed to be civil death, under Section 108 of the Evidence Act would not fall in the ambit of Rules of 1974

From the bare reading of the aforesaid Rule, it transpires that if a Government servant dies in harness, one of his/her dependent of his family as given in Rule 2(c) shall be entitled to be considered for employment subject to condition given in rule 5.

From going through the aforesaid Rules now it is clear in view of the lodging of an F.I.R. and filing of the final report, no information about his where about for more than seven years and its acceptance by the Court, further the father of the petitioner shall be treated to be dead which in legal terminology would be mentioned as civil death.

In this rule, no exception has been carved out with respect to natural death, death otherwise or civil death. The word used in the aforesaid rules do not restrict that only on a particular type of death, a person shall be offered appointment. The death may be due to any reason, may be by illness, by an accident, in a natural calamity or under general law (the Evidence Act). The government Order and Circular have tried to draw a line of distinction in between the civil death and the death falling under other categories. Now the question would be as to whether this line of distinction is a legal line drawn on the basis of some statutory basis or it is merely an outcome of abrupt imagination of the State authorities particularly in the circumstances when the Government itself has issued a government order No. Sa-3-G-I-88/ten-909-97extending the benefit for payment of post retrial dues taking note of Section 108 of the Evidence Act.

From the perusal of aforesaid Rule, it would transpire that this rule will have overriding effect notwithstanding anything to the contrary contained in any rules, regulations or orders in force.

It is not in dispute that this rule has been framed under Article 309 of the Constitution of India, therefore any Government Order which is inconsistent with the provisions of these rules will be of no avail.

In view of foregoing discussions, I am of the view that if a dependant of deceased on account of civil death claims appointment under the provisions of 1974, he/she is entitled to be considered under the Rules and no distinction can be drawn in between the civil death or death otherwise. (Km. Gyanti v. State of Uttar Pradesh and Ors.; 2012 (6) ALJ 203)

Art. 16 - Compassionate appointment – Claim by widowed daughter-in-law – Entitlement - It included widowed daughter-in-law under definition of family

The State Government has also now amended the U.P. Recruitment of Dependants of Government Servant (Dying in Harness) Rules, 1974 and has included a widowed daughter-in-law in the category of ‘family’. The said amendment has also been published in the official gazette dated 22-12-2011. The term, ‘family’ has been defined to include the following members.

“(C) “Family” shall include the following relations of the deceased Government servant:-

(i) wife or husband;

(ii) Sons/Adopted sons;

(iii) Unmarried daughters, unmarried adopted daughters, widowed daughters and widowed daughter-in-law;

(iv) unmarried brothers, unmarried sisters and widowed mother dependent on the deceased Government servant, if the deceased Government servant who has been declared as “dead” by the competent court;

(v) aforementioned relations of such missing Government servant who has been declared as “dead” by the competent Court;

Provided that if a person belonging to any of the above mentioned relations of the deceased Government servant is not available or is found to be physically and mentally unfit and thus ineligible for employment in government service, then only in such situation the word “family” shall also include the grandsons and the unmarried grand-daughters of the deceased Government servant dependent on him”

In view of the above legal proposition as well as the amendment in the Dying in Harness Rules, 1974 to include the widowed daughter-in-law in the definition of the term ‘family’, this writ petition is allowed and the impugned order dated 15-1-1998 passed by the Basic Shiksha Adhikari, Fatehput is quashed. (Smt. Geeta Srivastava v. State of U.P. and Ors.; 2012 (6) ALJ 8)

Departmental Enquiry - Purpose of

The purpose of departmental enquiry and of prosecution are two different aspects. The criminal prosecution is launched for an offence for violation of a duty, the offender owes to the society or for breach of which law has provided that the offender shall make satisfaction to the public. So crime is an act of commission in violation of law or of omission of public duty. The departmental enquiry is to maintain discipline in the service and efficiency of public service. It would, therefore, be expedient that the disciplinary proceedings are conducted and completed as expeditiously as possible. It is not, therefore, desirable to lay down any guidelines as inflexible rules in which the departmental proceedings may or may not be stayed pending trial in criminal case against the delinquent officer. Each case requires to be considered in the backdrop of its own facts and circumstances. (Avinash Sadashiv Bhosale (D) vs. Union of India; 2012(3) AISLJ 392)

Departmental/Criminal Case - Effect of Exoneration - Question whether exoneration in departmental case will ipso facto nullify the criminal prosecution - Held “No”

It is worth mentioning that decision in P.S. Rajya (supra) came up for consideration before a two-Judge Bench of this Court earlier, in the case of State v. M. Krishna Mohan, (2007) 14 SCC 667. While answering an identical question i.e. whether a person exonerated in the departmental enquiry would be entitled to acquittal in the criminal proceeding on that ground alone, this Court came to the conclusion that exoneration in departmental proceeding ipso fact would not lead to the acquittal of the accused in the criminal trial. This Court observed emphatically that decision in P.S. Rajya (supra) was rendered on peculiar facts obtaining therein. It is apt to reproduce paragraphs 32 and 33 of the said judgment in this connection:

“32. Mr Nageswara Rao relied upon a decision of this Court in P.S. Rajya v. State of Bihar [1996 (9) SCC 1]. The fact situation obtaining therein was absolutely different. In that case, in the vigilance report, the delinquent officer was shown to be innocent. It was at that juncture, an application for quashing of the proceedings was filed before the High Court under Section 482 of the Code of Criminal Procedure which was allowed relying on State of Haryana v. Bhajan Lal [1992 Supp. (1) SCC 335] holding: (P.S. Rajya case [1996 (9) SCC 1, SCC p.9, para 23)]

“23. Even though all these facts including the report of the Central Vigilance Commission were brought to the notice of the High Court, unfortunately, the High Court took a view that the issues raised had to be gone into in the final proceedings and the report of the Central Vigilance Commission, exonerating the appellant of the same charge in departmental proceedings would not conclude the criminal case against the appellant. We have already held that for the reasons given, on the peculiar facts of this case, the criminal proceedings initiated against the appellant cannot be pursued.”

Ultimately this Court concluded as follows:

“33. The said decision was, therefore, rendered on the facts obtaining therein and cannot be said to be an authority for the proposition that exoneration in departmental proceeding ipso facto would lead to a judgment of acquittal in a criminal trial.”

This point also fell for consideration before this Court in the case of Supdt. of Police (C.B.I.) v. Deepak Chowdhary, (1995) 6 SCC 225, where quashing was sought for on two grounds and one of the grounds urged was that the accused having been exonerated of the charge in the departmental proceeding, the prosecution is fit to be quashed. Said submission did not find favour with this Court and it rejected the same in the following words:

“6. The second ground of departmental exoneration by the disciplinary authority is also not relevant. What is necessary and material is whether the facts collected during investigation would constitute the offence for which the sanction has been sought for.”

Decision of this Court in the case of Central Bureau of Investigation v. V.K. Bhutiani, (2009) 10 SCC 674, also throws light on the question involved. In the said case, the accused against whom the criminal proceeding and the departmental proceeding were going on, was exonerated in the departmental proceeding by the Central Vigilance Commission. The accused challenged his prosecution before the High Court relying on the decision of this Court in the case of P.S. Rajya (supra) and the High Court quashed the prosecution. On a challenge by the Central Bureau of Investigation, the decision was reversed and after relying on the decision in the case of M. Krishna Mohan (supra), this Court came to the conclusion that the quashing of the prosecution was illegal and while doing so observed as follows:

“In our opinion, the reliance of the High Court on the ruling of P.S. Rajya was totally uncalled for as the factual situation in that case was entirely different than the one prevalent here in this case.”

We are, therefore, of the opinion that the exoneration in the departmental proceeding ipso facto would not result into the quashing of the criminal prosecution. We hasten to add, however, that if the prosecution against an accused is solely based on a finding in a proceeding and that finding is set aside by the superior authority in the hierarchy, the very foundation goes and the prosecution may be quashed. But that principle will not apply in the case of the departmental proceeding as the criminal trial and the departmental proceeding are held by two different entities. Further they are not in the same hierarchy. (State of N.C.T. of Delhi vs. Ajay Kumar Tyagi (SC), AISLJ 2012(3) 420)

Seniority—Promotion—Career Advancement Scheme—Promotion earned for higher scales on the basis of Career Advancement Scheme (CAS) will have no bearing to inter se seniority

The petitioner had been appointed as a Lecturer on 30.7. 1990 while the third respondent had been appointed on 17.7.1990. They had been respectively confirmed in their posts on 30.7. 1991 and 17.9.1993. It appears that under a Career Advancement Scheme the petitioner had been appointed as a Reader on 6.11.2007 while the third respondent was appointed as Reader on 7.7.2007. They earned the further promotions to the post of Professor under the Scheme. On account of the fact that the third respondent had earned promotion under the Career Advancement Scheme earlier she was also treated as senior to the petitioner. Learned Senior counsel for the petitioner would point out to the position brought through the rules which were adopted under suppression of the earlier rules that the inter se seniority of teachers was to be determined by the dates of confirmation and if two or more persons were selected through the same Selection Committee, the inter se seniority would be determined on the merit indicated by the Selection Committee and if they were tied in terms of seniority the person who was older in age was to be treated as senior. The Executive Council while considering the confirmation of cases to teachers permitted under the CAS, however, resolved on 29.9.2005 that confirmation of teachers promoted under CAS would be effective from the date of joining but while giving effect to the above decision, it would in no way have any further purpose to adversely affect the departmental inter se seniority of teachers insofar as it related to the promotions and confirmations under CAS.

The attempt of the petitioner was therefore to contend that promotions earned for higher scales on the basis of CAS will have no bearing to inter se seniority or that will have to be governed by the particular rule which was applicable viz., the inter se seniority would be only on the basis of confirmation. The petitioner would contend that in view of the fact that the petitioner had been confirmed earlier to the respondent namely on '30.7.1991 against the third respondent confirmation on 17.9. 1993, the placement of inter se seniority must have been only on the basis of such confirmation. Consequently the petitioner must be treated as senior in the post of Professor. Learned Senior Counsel for the petitioner would also refer to the decision of the Supreme Court in Dr. Rashmi Srivastava Vs. Vikram University & Ors. JT 1995 (4) SC 51 : [1995(3) SLR 21 (SC)] that dealt with the effect of promotion under the Scheme as only a personal promotion without any addition to the cadre and without creating any vacancy in the lower cadre from which the lecturer was promoted. Such promotion would not entitle to a person be included in the seniority list of directly recruited Readers or Professors. To apply this law here, it should be taken that the petitioner and the third respondent shall rank in the respective posts as a lecturer in such a way that the petitioner must be treated as senior to the third respondent irrespective of the fact that they earned promotions under the Career Advancement Scheme. This may not have an immediate bearing to the post held by them as Professor in the respective scales or responsibilities but the position of seniority will be so prescribed that it leaves no doubt that the petitioner will be treated as senior to the third respondent in the post as Lecturer and the seniority list will be maintained only on the basis of respective dates of regularization and not from the date when a person was assigned to a higher post under the Career Advancement Scheme. (Dr. (Mrs.) Sangeeta vs. Kurukshetra University; 2012 (2) SLR 673 (P&H HC)

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Societies Registration Act

S. 25 (as amended in U.P.) - Assistant Registrar has no jurisdiction to decide disputes relating to Election of office bearers

Sri Shah Lal Chand Jain Bal Vikas Samiti, Chirgaon, Jhansi is a society registered under the Societies Registration Act. Petitioners before this court seek quashing of the order of the Assistant Registrar dated 11.05.2012 where-under he has directed that the list of Office Bearers submitted by Jinendra Kumar Jain respondent No. 5 be registered under Section 4 of the Societies Registration Act. The order is challenged on the ground that the Assistant Registrar has no jurisdiction to enter into the disputed issue pertaining to the elections of the Office Bearers of the society. Bona fide disputes are necessarily to be referred to the Prescribed Authority under Section 25 (1) of the Societies Registration Act.

Learned counsel for the parties agreed that there was a bona fide dispute and, therefore, the order passed by the Assistant Registrar is without jurisdiction. (Devendra Kumar Ojha & Ors. V. State of U.P. & Ors.; 2012 (6) ALJ 15)

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Specific Relief Act

S. 6 – Person illegally dispossessed of his immovable property - May file suit for recovering the possession – Court required to determine whether plaintiff was in possession and has been illegally dispossessed – Such suit has to be filed within six months from date of the dispossession - Proceeding under section 6 is a summary proceeding

Section 6 of the Specific Relief Act 1963 under which provision of law the suit in question was filed by the plaintiff-respondent is pari-materia with section 9 of the Act of 1877. A bare reading of the provisions contained in section 6 of the Act of 1963 would go to show that a person who has been illegally dispossessed of his immovable property may himself or through any, person claiming through him recover such possession by filing a suit. In such a suit, the entitlement of the plaintiff to recover possession of property from which he claims to have been illegally dispossessed has to be adjudicated independently of the question of title that may be set up by the defendant in such a suit. In fact, in a suit under section .6, the only question that has to be determined by the court is whether the plaintiff was in possession of the disputed property and he had been illegally dispossessed therefrom on any date within six months prior to the filing of the suit. This is because section 6 (2) prescribes a period of six months from the date of dispossession as the outer limit for filing of a suit. As the question of possession and illegal dispossession therefrom is the only issue germane to a suit under section 6, a proceeding thereunder, naturally, would partake the character of a summary proceeding against which the remedy by way of appeal or review has been specifically excluded by sub-section (3) of section 6. Sub-section (4) also makes it clear that an unsuccessful litigant in a suit under section 6 would have the option of filing a fresh suit for recovery of possession on the basis of title, if any. In fact, the above view has found expression in several pronouncements of this Court of which reference maybe made to the decisions in Lallu Yashwant Singh (dead) by his LRs. v. Rao Jagdish Singh and others, AIR 1968 SC 620; Krishna Ram Mahale (D) by LRs v. Mrs. Shobha Venkat Rao, AIR 1989 SC 2097 and Sanjay Kumar Pandey and others v. Gulabahar Sheikh and others, 2004(55) ALR 546. In fact, para 4 of this Court’s judgment, passed in Sanjay Kumar Pandey (supra) may be a useful reiteration of the law in this regard. The same is, therefore, extracted herein below:

“4. “A suit under section 6 of the Act is often called a summary suit in as much as the enquiry in the suit under section 6 is confined to finding out the possession and dispossession within a period of six months from the date of the institution of the suit ignoring the question of title. Sub-section (3) of section 6 provides that no appeal shall lie from any order or decree passed in any suit instituted under this section. No review of any such order or decree is permitted. The remedy of a person unsuccessful in a suit under section 6 of the Act is to file a regular suit establishing his title to the suit property and in the event of his succeeding he will be entitled to recover possession of the property notwithstanding the adverse decision under section 6 of the Act. Thus, as against a decision under section 6 of the Act, the remedy of unsuccessful party is to file a suit based on title. The remedy of filing a revision is available but that is only by way of an exception; for the High Court would not interfere with a decree or order under section 6 of the Act except on a case for interference being made out within the well-settled parameters of the exercise of revisional jurisdiction under section 115 of the Code.”

(I.T.C. Limited vs. Adarsh Co-operative Housing Society Ltd.; 2012 (117) RD 562)

S. 20 - CPC O. 32, R. 15 - Relief of specific performance of contract - Written statement filed by vendee's wife seeking permission to act as his next friend, who was alleged to be of unsound mind - Enquiry under O. 32, R. 15 not conducted - Judgment passed without appointing guardian for vendee (if that was necessary) and without vendee himself filing any written statement or participating in trial - Grant of relief of specific performance, not proper

In the light of the foregoing discussion, the judgment and decree passed by the court below without conducting an enquiry under Order XXXII Rule 15 and without appointing a guardian for the defendant (if that was necessary) and without the defendant himself filing any written statement or participating in the trial, cannot be sustained and is, accordingly, set aside. The court below shall dispose of the suit afresh. The appellant/defendant shall file an application for formal permission to appoint a guardian for him in the court below within two weeks of the date fixed herein below for appearance of the parties. The said application shall be disposed of in accordance with law. In case the court below finds that the defendant is a person of unsound mind, a guardian who does not have any interest adverse to that of the defendant shall be appointed to represent the defendant. Such guardian can be Ajithakumari, the wife of the defendant, in case, she satisfies the requirements of law. In case, the wife of the defendant or any other person is appointed as the guardian of the defendant, it shall be open to the guardian to adopt the written statement which was already filed in the case or file any amendment thereto. If after enquiry, the court below comes to the conclusion that the defendant is not a person of unsound mind, in that case the defendant shall be permitted to file a written statement within such time fixed by the court below. The suit shall, thereafter, be disposed of in accordance with law after giving both sides an opportunity of being heard. (Krishnankutty Madhavan v. Veena M.G.; AIR 2012 Ker 166)

S. 38 - Suit for declaration, cancellation of sale deed and permanent injunction - Sale of undivided share in land in dispute was in joint tenancy of plaintiff and defendant - It was undivided at time of execution of sale deed - But only for that reason defendant would not be disentitled to sell his undivided share of same – Sale-deed would not be null and void

One of the co-sharers of a joint property or a co-tenant without partition of the same and without obtaining permission and consent of the remaining co-sharer or co-tenant can transfer in any manner to any other person, whole or part of his undivided share in such property and at the most the possession of the same cannot be handed over to the transferee unless the property is partitioned by metes and bounds amicably and through mutual settlement or by a decree of the Court. On such transfer, the transferee comes in the shoes of the transferor and he becomes co-sharer or co-tenant in place of the transferor having all rights of the transferor and he can demand partition of the property but only by that reason the transfer cannot become void and inoperative to the rights of the remaining co-sharer or co-tenant. The transferee does not acquire title to any defined share in the property and also does not acquire a right to joint possession from the date of the transfer and his right is to enforce for a partition.

It is not necessary and it cannot be a condition precedent for executing a sale deed by a co-sharer or a co-tenant to the extent of his share, a prior division of the same may take place between the co-sharer. As a matter of fact if a share in agriculture land is transferred by a co-sharer, the buyer of such co-tenant or co-sharer steps into the shoes of the seller and becomes a co-tenant.

In the instant case from the perusal of the sale deed it was very clear that the defendant had only sold his undivided one-half share of the land in question and not any specified portion or share of it. Merely because the respondent had sold his entire one-half share of the land, it cannot be said that any specified portion or share of it was sold.

Thus, land in question being in the joint tenancy of the plaintiff and defendant arid it being undivided at the time of execution of the sale deed but only by that reason it cannot be held that defendant was not entitled to sell his undivided share of the same and the sale deed was null and void. (Ram Ratan v. Chandra Prakash & Ors.; AIR 2012 Raj. 185)

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Stamp Act

S. 56—Order determining deficiency in stamp duty – Appeal against consideration of

The object of providing a statutory appeal is to test the correctness of the order and that too by a superior authority/Court.

Officer who has passed the order as inferior Court or authority cannot legally test correctness of his own decision while exercising the powers of the superior Court in appeal, otherwise it would make the appeal illusory and nugatory frustrating the purpose of its filing.

The appeal is conceptually different from a review. The review is reconsideration of the subject by the same Judge to cure an error which may be apparent on record while an appeal is re-hearing of the matter by a superior Court/authority to test correctness of the decision of the lower Court/authority. Allowing the appeal to be heard by the same officer who has passed the basic order would tantamount to reducing the appellate jurisdiction into that of review. Therefore, also no person should normally hear the appeal against his own order.

One of the fundamental principles of natural justice is that no man can be a Judge in his own cause. The said principle would also be attracted in a case where a Judge may not be a party to the cause of action in any manner aforesaid but has delivered the order/judgment which is to be tested in appeal.

Thus, deciding appeal in capacity as Commissioner against one’s own order passed as an inferior authority/Collector, held not proper being against settled principles of natural justice. (Mohd. Chand Abdul Aziz vs. State of U.P.; 2012 (5) ALJ 600)

Sch. 1-B, Art. 35 Deed of Tah-e-Bazaar—Lease or licence—Stamp duty payable—Consideration of

In the present case, the stand of the respondents in the counter-affidavit is that the petitioner had signed the bid-sheet and he has completed the one year contract of the year 1996-97 and as such order of the Controlling Authority is justified and does not warrant any interference.

In the similar facts, in the case of Indrabhan Singh vs. State of U.P. and others, 2007(3) 2091 (sc), the learned Single Judge has treated the bid-sheet of the auction of Tehbazari rights for collection of stand fees was of lease and has followed the judgment of the Full Bench of Jagdish Lala case. It will be useful to reproduce the reasoning given by this Court;

“The question that arose in that petition was whether the bid-sheet when it was signed by the highest bidders amounted to an agreement creating right or liability. It was held by the Full Bench that the bid-sheet neither creates nor purports to create any right or liability and it was in consequence held that it ails to satisfy the requirements of an instrument much less an instrument.”

The facts of the present case are identical with the case of Indrabhan Singh.

From the aforesaid, what emerges is that a contract which has been awarded in pursuance of the auction has the complexion of a lease and therefore, stamp duty is payable under Article 35 Schedule 1-B of the Stamp Act. (Zaheer Alam vs. Commissioner, Saharanpur; 2012 (5) ALJ 798)

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Succession Act

S. 372 - Hindu Marriage Act (25 of 1955), Ss. 5(i), 24-28 - Grant of Succession Certificate - Unchastity of widow is no bar to inherit her deceased husband's estate - Grant of succession certificate proper

Under the old Hindu Law, a widow who is unchaste at the time of her husband's death was not entitled to inherit his estate. But Section 28 of the Hindu Marriage Act, 1956 discards almost all the grounds, which imposed exclusion from inheritance. It rules out disqualification on any ground whatsoever accepting those expressly recognized by any provisions of the Act. Unchastity of a widow is not a disqualification under the Act of 1956. The unchastity of a wife is certainly a ground for divorce but in the absence of a, decree of divorce, cannot be pressed into service to disinherit even an unchaste wife from claiming her rights as a widow.

A decree of divorce can only be granted by a Court of competent jurisdiction, exercising powers under the Hindu Marriage Act. The mere fact that a woman is abandoned by her husband or that a woman after being abandoned by her husband lives with another man, would not raise an inference that their marriage stands dissolved and, therefore, in the absence of proof of divorce between appellant and deceased, appellant's right to inherit the property of her husband cannot be denied. (Ranjana Kamble v. Smt. Ranjana alias Vimaltai and others; AIR 2012 Chh 167)

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Tort

Negligence – Res ipsa loquitur – Contributory negligence - Death resulted from fall in open manhole an public road – Whether defence of contributory negligence of the deceased is available to the authorities – Held, “No”

If there had been an open manhole and a death had resulted, it was evidently on account of negligent maintenance of the Municipal Corporation that the death must have come about. It simply answers res ipsa loquitur situation that requires no further probe on finding who is culpable. Learned counsel for the State argues that deceased herself was guilty of contributory negligence. I reject the plea as untenable for an open manhole is indeed a death trap and the State ought to own responsibility for the consequences of not properly taking care to ensure that no untoward incident could take place by an unwary member of the public falling into the hole in an unguarded moment. Roads are meant for use by the public and if a user comes to harm, the State shall be directly responsible for the consequences of such harm. (Anand Sagar Ahluwalia & others vs. State of Punjab & others; 2012 ACJ 2486)

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Transfer of Property Act

S. 41 - Transfer must be for consideration without misrepresentation or fraud by person having requisite power to transfer and it must be in good faith

The general rule of law is un doubted, that no one can transfer a better title than he himself possesses; Nemo dat quod non habet. However, this Rule has certain exceptions and one of them is, that the transfer must be in good faith for value, and there must be no misrepresentation or fraud, which would render the transactions as void and also that the property is purchased after taking reasonable care to ascertain that the transferee has the requisite power to transfer the said land, and finally that, the parties have acted in good faith, as is required under Section 41 of the Transfer-of Property Act, 1882. (Gian Singh vs. State of Punjab & Another; 2012(6) Supreme 1)

Ss. 105, 52 – Distinction between lease and licence – Lease creates right in favour of lessee in respect of demised premises, licence on other hand makes action of licensee lawful which without licence would have been unlawful

Consideration of the rival submissions the principle question to be considered is as to whether the document of allotment of land dated 6.5.1994 was in any way a lease or a license. As far as a lease is concerned, Section 105 of the Transfer of Property Act, 1882, defines it as follows:

"105. Lease defined.- A lease of immoveable property is a transfer of a right to enjoy such property, made for a certain time, express or implied, or in perpetuity, in consideration of a price paid or promised, or of money, a share of crops, service or any other thing of value, to be rendered periodically or on specified occasions to the transferor by the transferee, who accepts the transfer on such terms.

Lessor, lessee, premium and rent defined.-

The transferor is called the lessor, the transferee is called the lessee, the price is called the premium, and the money, share, service or other thing to be so rendered is called the rent."

As far as a license is concerned, the same is defined under Section 52 of the Indian Easements Act, 1882, as follows:-

"52. "License" defined.- Where one person grants to another, or to a definite number of other persons, a right to do, in or upon the immovable property of the grantor, something which would, in the absence of such right, be unlawful, and such right does not amount to an easement or an interest in the property, the right is called a license."

From these two definitions it is clear that a lease is not a mere contract but envisages and transfers an interest in the demised property creating a right in favour of the lessee in rem. As against that a licence only makes an action lawful which without it would be unlawful, but does not transfer any interest in favour of the licensee in respect of the property. (Mangal Amusement Park (P) Ltd. & Anr. v. State of Madhya Pradesh & Ors.; AIR 2012 SC 3325)

Ss. 113, 106—Notice to quit—Waiver—Mere acceptance of rent would not by itself constitute an intention to treat lease as subsisting

Mere acceptance of rent would not b y itself constitute an act of the nature as contemplated by Section 113 Transfer of Property Act showing an intention to treat the lease as subsisting. The fact remains that even after accepting the rent tendered, the landlord did file a suit for eviction, and even while prosecuting the suit accepted rent which was being paid to him by the tenant, it cannot, therefore, be said that by accepting rent, he intended to waive the notice to quit and to treat the lease as subsisting. The respondent-landlord was absolutely within its rights to receive the rent. Mere acceptance of rent before the expiry of the notice issued under Section 106 of the T.P. Act will not amount to waiver of notice. (Sanjiv vs. Mahabir Digambar Jain Mandir; 2012 (5) ALJ 429)

Ss. 114, 111 (g)—Relief against forfeiture—Entitlement to

In this case, court has observed that the petitioner purchased the disputed shop by registered sale deed dated 3.6.2004. The petitioner sent a registered notice under Section 106 of Transfer of Property Act, 1882 (in short “T.P. Act”) which was duly served upon the tenant-opposite party and also replied by him. Thereafter, the petitioner filed a S.C.C. Suit No. 8 of 2005 for arrears of rent and ejectment. The respondent-tenant filed a written statement admitting the fact that the petitioner is a landlord and the rent is Rs. 150/- per month.

The Trial Court by order dated 26.10.2009 decreed the suit for arrears of rent holding that the U.P. Act No. XIII of 1972 (in short “the Act”) is not applicable to the property in dispute. It was also held that the respondent-tenant committed default in payment of rent and is not entitled to benefit of Section 114 of the T.P. Act. Feeling aggrieved and dissatisfied with the said order, the respondent filed a Revision, which was registered as S.C.C. Revision No. 20 of 2009. The Revisional Court by order dated 18.7.2011 allowed the revision and remanded the matter to the Trial Court for disposal afresh mainly on the ground that the Court below had erred in not giving the benefit of Section 114 of the T.P. Act. Hence the present writ petition.

It is not disputed that no written lease agreement was executed between the parties, so, it cannot be said that the lease was determined by way of forfeiture as provided under Section 111(g) of the T.P. Act. That being so, the necessary corollary whereof would be that the provision of Section 114 of the T.P. Act would also not be applicable. Thus the respondent cannot claim any benefit of Section 114 of the T.P. Act.

Learned counsel for the petitioner has relied upon a decision of this Court in the case of Yashpal vs. Allahabad Malik Waqf Azakhan and others, 2005(3) Allahabad Rent Cases, Page 764, wherein it has been held as follows:

“Hence, the submission made by the learned counsel for the petitioner (defendant) that Section 111, Clause (g) would be rendered redundant if Category (1) of the said clause (g) is confined to only a written lease, cannot, in my view, be accepted.

Hence, in view of the aforesaid, it follows that for the applicability of Section 111(g), Category (1), and, as such, of Section 114 of the Transfer of Property Act, it is necessary that the lease must be in writing containing the express condition as per the requirements of Section 111(g), Category (1), and, as such, of Section 114 of the Transfer of Property Act will not apply. The provisions of Section 111 (g), Category (1), and consequently, of Section 114 of the Transfer of Property Act are not applicable to oral lease. This view gets support from various judicial decisions.”

Since there is no written lease agreement between the parties, the provisions of Section 111(g) is not applicable, therefore, the respondent cannot take benefit of Section 114 of the T.P. Act. (Anil Kumar Keshav Dev vs. Kishan Lal Shyam Lal; 2012 (5) ALJ 703)

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U.P. Consolidation of Holdings Act

S. 48 - Scope of - Held, while exercising the revisional power, the Deputy Director of Consolidation, can set aside the findings recorded by authorities below, if their findings are found to be illegal, irregular or improper - However he cannot substitute his own findings

The only reason indicated for setting aside the judgment and order passed by the appellate court as well as the trial court by the Deputy Director of Consolidation is not tenable. The Court finds that the judgments by the trial court which was affirmed by the appellate court is based on appreciation of evidence available on record and upsetting the same. The reason indicated by the Deputy Director of Consolidation is fallacious inasmuch as the stand taken by Ram Prasad that the property in question was not ancestral property and hence, the petitioners do not have any co-tenancy rights diluted by his own statement made in the previous mutation proceedings. There is nothing on record to establish that the stand taken by Ram Prasad has on where been denied in any form by him. In light of discussions and reasons given above, the writ petition deserves to be allowed.

Accordingly, the writ petition is allowed. A writ in the nature of certiorari is issued quashing the impugned judgment and order dated 11.10.1972 passed by the Deputy Director of Consolidation, Pratapgarh as contained in annexure no. 4 to the writ petition. However, there will be no order as to costs. (Sher Bahadur Singh & others Vs. Deputy Director of Consolidation, Pratapgarh & others; (2012 (30) LCD 2270) (All HC (LB)

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U.P. Factories Welfare Officers Rules, 1955

Rule 9, Proviso and 13 - Constitution of India, 1950 - Articles 14 and 226 -Exemption of age limit – Appointment - Petitioner was appointed as Welfare Officer Grade III in Cotton Mill Naini - On date of appointment he was slightly overage - He applied for age relaxation - Authority concerned has refused to relax age and rejected his claim - But no reason recorded with the order opinion - Failed to apply mind - Hence, the impugned order is quashed and directed to reconsider the grant of exemption in age as provided under Rule 9

In short, fair play requires recording of germane and relevant precise reasons when an order affects the rights of a citizen or a person irrespective of the fact whether it is judicial, quasi-judicial or administrative. Decision or order of any statutory or public authority bereft of reasoning would be arbitrary, unfair and unjust, violative of Article 14 of the Constitution of India.

The State Government, rejecting the petitioner’s application for age relaxation under proviso to Rule 9 of the Rules. The said order simply states that the State Government has rejected the application as it was not possible to grant any age relaxation. The aforesaid order is undoubtedly a non-speaking order. It does not contain any reason for rejecting the petitioner’s application for grant of relaxation in age limit. The impugned order does not in any manner show that the authorities had applied mind to the relevant aspects in refusing age relaxation to the petitioner.

The orders dated 21.4.1987 and 4.11.1986 (Annexures 5 and 7 to the petition) are quashed and a writ of mandamus is issued directing respondent No. 1 to reconsider the grant exemption in the matter of age limit as provided under Rule 9 of the U.P. Factories Welfare Officers Rules, 1955. (Ramesh Chandra Vs. Chief Inspector of Factories U.P., Kanpur and another; (2012 (135) FLR 95) (All HC)

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U.P. Imposition of Ceiling on Land Holdings Act

S. 10 - Ceiling proceedings - Non substitution of legal heirs after death of tenure holders - Effect of - Proceeding liable to be set aside

The petitioners are the grand-sons of the tenure holder, late Ganga Prasad Tripathi. The tenure holder was put to notice under S. 10(2) of the U'P Imposition of Ceiling on Land Holdings Act, 1960 and the prescribed authority vide order dated 21st July, 1976 declared an area of 10.54 acres of land as surplus. This was pursuant to a second notice in spite of the authority having issued a previous notice. The tenure holder filed an appeal which was allowed on 21st September, 1978 whereby the subsequent notice issued by the prescribed authority was discharged leaving it open to the prescribed authority to proceed in accordance with law as per the earlier notice that was issued to Ganga Prasad Tripathi.

After remand the petitioners state that their grand-father, Ganga Prasad Tripathi, died on 4th of November, 1980. The proceedings thereafter did not continue against the heirs of Ganga Prasad Tripathi and as a matter of fact no substitution was carried out on behalf of the State. It has been stated that the father of the petitioners, Janardan Prasad Tripathi had also died in between on 22nd October, 1987".

The status of the family and its pedigree has been disclosed in paragraph 17 of the writ petition. The petitioners, therefore, took a stand that without substituting all the legal heirs the proceeding could not be continued and the State having failed to discharge its duties, the petitioners were under no Obligation to have voluntarily put up their appearance.

In the circumstances it is not correct or record that the petitioners or the tenure holders were present before the prescribed authority after substituting. The substitution application which was filed Kunta Kishore Mani Tripathi was also not disposed of which fact has been clearly stated in the supplementary affidavit. There is no denial to the same. All the aforesaid circumstances cumulatively, therefore, clearly indicate that the tenure holders were not represented and the heirs were not bought on record and put to notice before the prescribed authority proceed to pass the impugned order. Even if Kunta Kishore one of the sons had knowledge of the pendency of the proceedings, the same is no way is substituted service on the heirs entitled to contest the matter. There is no proof of any service and therefore the presumption of knowledge or notice is erroneous. (Surendra Narain Tripathi & Anr. V. State of U.P. & Ors.; 2012(6) ALJ 345)

S. 10(2) – Declaration of surplus land -Validity of

In the present case, the subject-matter of land under the Will had been directed to be excluded under, the appellate order dated 17th of May, 1988 and the same has been reiterated in the appellate order dated 5.2.1991. In view of the provisions of Section l3 of the U.P. Imposition of Ceiling on Land Holdings Act, 1960 it is clear that the decision in an appeal shall be final and conclusive and shall not be questioned in any Court of law. The appellate order dated 17.5.1988 as reiterated in the order dated 5.2.1991 was, therefore, final. There was no evidence to the contrary to dispute the execution of the Will. It is only on the ground of an alleged delayed mutation proceeding that the Will has been discarded by the Prescribed Authority. In the opinion of the Court merely because proceedings for recording the name took 11 years will not defeat the devolution of interest under the Will so long as the Will is not stated to be either fake or forged. In the absence of any such finding neither the Prescribed Authority nor the Appellate Authority could have discarded the said will more so when the appellate order dated 17.5.1988 and 19.2.1991 specifically issued a direction to exclude the land under the Will. It is for this reason that this Court granted an interim order recording the same on 18.10.1995. (Amir Ahmad & Anr. v. Additional Commissioner & Ors.; 2012(6) ALJ 288)

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U.P. Recruitment of Dependent of Government Servant Dying in Harness Rules

S.5 – Relaxation - Financial stringency - While deciding financial stringency for compassionate appointment retrial benefits received are not to be counted and power to relax in compassionate appointment should be with subordinate court instead of State Government

The receipt of family pension by the widow and sum of Rs. 1.42 lacs paid to widow after deducting the loan cannot be taken to be a good ground for rejecting the case for appointment on compassionate ground. It is common knowledge that the widow is entitled to family pension and other benefits in the event her husband dies in harness. If the plea of the Bank is accepted then no appointment can be make on compassionate ground and the scheme of the Bank shall have no meaning. We are of the view that the learned Single Judge was quite justified in allowing the writ petition. (Pramod Kumar Rajak vs. Registrar General High Court, Allahabad; AISLJ 2012(3) 497)

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U.P. Stamp Rules

Rule-341 - Determination of value of land - Various factors to be considered

In Mahabir Prasad Shantuka Vs. Collector; 1987 ALR 308 this Court has observed that the term market value means that the willing purchaser would pay to a willing seller for the property having regard to the advantages available to the land and the development activities which may be going on in the vicinity and the potentiality of the land and other relevant factors. Circle rate fixed by Collector under Rule 341 of U.P. Stamp Rules, 1942 are guidelines for the purpose of realisation of stamp duty in the event of sale of land of a particular area. It cannot determine the value of land conclusively.

The above observations goes to show that when almost adjoining buildings having similar structures can have different value, to apply the circle rate applicable to entire locality cannot properly determine the market value of building in question. In this particular case the RCEO has followed and preferred an exemplar of a building in vicinity and of a recent duration when application was filed by petitioners. (Rama Shankar vs. Special Judge (NDPS) Act, Orai, Jalaun; 2012(3) ARC 607 (All HC)

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U.P. Urban Buildings (Regulation of Letting, Rent & Eviction) Act

Ss. 2 & 3 - Date for commencing ten years period - Determination

For the purpose of commencing period of ten years under Section 2(2), it is the date on which the "construction of the building is completed." As to when construction would be treated as completed, the phrase has been defined in Explanation (a) of Section 2(2), which refers to the date on which construction of the building is reported to local authority or is otherwise recorded by it having jurisdiction, and, in case of building subject to assessment, the date on which the first assessment thereof comes into effect, and where the said dates are different, the earliest of the said dates. It is only when none of the aforesaid dates are available, the date on which the premises is actually occupied for the first time would constitute the date on which the construction would be said to have completed. (Fakir Chandra Govila vs. Suresh Chandra Agarwal; 2012(3) ARC 716 (All HC)

S. 2(1) (bb) - Provisions under - Exemption from operation of Act Explained

Section 2, in fact, provides exemptions from operation of Act 1972 and says that nothing in this Act shall apply to the buildings covered by those as referred to in Clause (a) to (h) of Sub section (i), with which we are concerned in the present matter, and, hence, it is not necessary to refer sub section 2 of Section 2 of Act, 1972. Section 2(1) reads as under:

Exemptions from operation of Act.- (1) Nothing in this Act shall apply to the following, namely :-

(a) any building of which the Government or a local authority or a public sector corporation or a Cantonment Board is the landlord; or

(b) any building belonging to or vested in a recognised educational institution, or

(bb) any building belonging to or vested in a public charitable or public religious institution;

(bbb) any building belonging to or vested in a waqf including a waqf-alal-aulad;

(c) any building used or intended to be used as a factory within the meaning of the Factories Act, 1948 (Act No. LXIII of 1948) where the plant of such factory is leased out along with the building; or

(d) any building used or intended to be used for any other industrial purpose (that is to say, for the purpose of manufacture, preservation or processing of any goods) or as a cinema or theatre, where the plant and apparatus installed for such purpose in the building is leased out along with the building:

Provided that nothing in this clause shall apply in relation to any shop or other building, situated within the precincts of the cinema or theatre, the tenancy in respect of which has been created separately from the tenancy in respect of the cinema or theatre; or

(e) any building used or intended to be used as a place of public entertainment or amusement (including any sports stadium, but not including a cinema or theatre), or any building appurtenant thereto; or

(f) any building built and held by a society registered under the Societies Registration Act, 1860 (Act No.XXI of 1860) or by a co-operative society, company or firm and intended solely for its own occupation or for the occupation of any of its officers or servants, whether on rent or free of rent or as a guest house, by whatever name called, for the occupation of persons having dealing with it in the ordinary course of business;

(g) any building, whose monthly rent exceeds two thousand rupees;
(h) any building of which a Mission of a foreign country or any international agency is the tenant.

The words relevant in Section 2(1)(bb) are "public charitable" or "public religious institution". A building which belongs to or vests in a public charitable or public religious institution is exempted from operation of the Act.

Ex facie, there is no use of the word 'trust' in the entire sub section. Section 2(1)(bb) has been inserted by U.P. Act 5 of 1995 w.e.f. 26th September, 1994 which replaced U.P. Ordinance No.19 of 1994 which came into force on 26th September, 1994. This Court has held in Punjab National Bank, Ghaziabad Vs. Dr. Rajendra Nath Azad; 1996 (1) ARC 348 & Ram Dularey vs. IVth A.D.J. Varanasi; 1996(2) ARC 459 that amendment Act 5 of 1995 is not retrospective. (Radhey Shyam Kushwaha vs. Addl. District Judge; 2012(3) ARC 823 (All HC)

S. 2 (1) (bbb) - Provisions under - Legality of

So far as further submission of learned counsel for the petitioner with reference to Section 2 (1)(bbb) is concerned, this Court finds that it was inserted by U.P. Act No. 5 of 199 w.e.f. 25.09.1994 while the suit in question was decided by the Trial court on 19.07.1994. Hence, this amendment would result in no consequence. Hence it has been held that the aforesaid amendment would not abate also pending proceedings and same would continue to be governed by the earlier law.

The submission of petitioner that shop in question is owned by a Waqf and in view of Section 2(1) (bbb), Act, 1972 is not applicable and therefore suit was liable to be abated, is thoroughly misconceived. The aforesaid amendment admittedly came into force w.e.f. 26.9.1994 by U.P. Act No.5 of 1995. The proceedings, which were pending prior thereto remain unaffected thereby. This issue, stands already settled by Apex Court as well as by a larger Bench i.e. Division Bench of this Court. In Ambalal Sarabhai Enterprises Ltd. Vs. Amrit Lal & Company and Another, 2001(8) SCC 397 the Court held that insertion of certain provision in the principal Act, taking away application of the Act, would not affect pending proceedings, if on the date when proceedings were initiated, the same were well within its jurisdiction.

In view of the above authority of Apex Court and the Division Bench judgment as well as Single Judge of this Court, the submission that Amendment Act of 1995 would result in abating pending proceedings is clearly misconceived and is rejected. (Lazmi Prasad vs. Spl. Judge, Gorakhpur; 2012 (3) ARC 866 (All HC)

S. 2 (g) (as inserted by Section 2 of UP Act No. 5 of 1995) – Provisions under - Scope and object of

In 1990, when the suit itself was filed, there was no exemption in respect to application of Act, 1972 to the property belong to a Wakf. Section 2(1)(bbb) came to be inserted by U.P. Act No.5 of 1995 w.e.f. 26th September, 1994 and provision is not retrospective. It would not affect pending proceedings. This is what has already been held by Apex Court as well as by a larger Bench i.e. Division Bench of this Court. In Ambalal Sarabhai Enterprises Ltd. Vs. Amrit Lal & Company and Another, 2001(8) SCC 397 the Court has held that insertion of certain provision in the principal Act, taking away application of the Act, would not affect pending proceedings, if on the date when proceedings were initiated, the same were well within its jurisdiction.

The said principle has been followed by a Division Bench in Champa Devi (Smt.) & Anr. Vs. Rent Control & Eviction Officer (Ist), Allahabad & Anr. 2002(1) ARC 192 and in Para 4 of the judgment, the reference made to the larger Bench was answered as under.

"Accordingly, the answer to the question referred would be that clause (g) to Section 2 of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972, inserted in the Act by Section 2 of U.P. Act No. 5 of 1995, will not affect the proceedings pending on the date of enforcement of U.P. Act No. 5 of 1995."

The Revisional Court in fact has made certain observations in this regard which is by way of abundant caution otherwise it has clearly held that property though is a Wakf property but is covered by Act, 1972. Since there is default in payment of rent, Trial Court has rightly decreed the suit. It appears that in respect to allegation regarding default in payment of rent and liability of tenant for eviction on the ground under Section 20(2)(a) of Act, 1972, no issue was raised before Revisional Court and this aspect was conceded by learned counsel for the petitioner. The issue raised before this Court has already been settled and it has been found that Wakf property was not exempted from application of Act, 1972 in 1990, therefore, suit in question was rightly filed under Section 20(2)(a) of Act, 1972. (Pooran Chandra vs. VIth Additional District Judge; 2012(3) ARC 895 (All HC)

Ss. 2(2), 21 – Applicability of Act - For applicability of Act, 10 years time has to be passed from date of construction of premise

Ss. 2(2), 24(2)—Applicability of Act on ‘New Building’—Consideration of—Court has further held that tenancy is extinguishes as soon as tenanted building falls to earth

Noticeably, Section 2 of the Act is also similarly worded. Sub-section (1) of Section 2 consists of clauses (a) to (h). All these clauses open with the words “any building………..” Similarly, its sub-section (2) which grants exemption to a building during the period of ten years (now it is forty years) from the date on which the construction completes. The irresistible conclusion which can be drawn is that the U.P. Act No. 13 of 1972 also grants exemption to the building from the operation of the Act and not to the relationship of landlord and tenant. The exemption is to building specific. There being so, the argument of the tenant that the old tenancy continues is meritless, as soon as the tenanted building falls to earth, the tenancy comes to an end.

It follows that rent control legislation relating to building, protects the accommodation and as soon as the accommodation i.e. super structure is demolished, the tenancy extinguishes.

The language of sub-section (2) of Section 2 makes it crystal clear that only such buildings which are specified in the various provisions referred therein would not be covered by the operation of the Act. this being not the case of the tenant that a release order was obtained against him under Section 21(1)(b) or the demolition or reconstruction took place in pursuance of such release order, we see no reason to hold the applicability of sub-section (2) of Section 24 in the facts of the case. if the tenant’s contention is accepted, it would be doing violation to the plain language of Section 2(2) and Section 24 of the Act. The main thrust of the tenant’s argument is that the principles underlying Section 24(2) would be applicable cannot be accepted. The tenant vacated the earlier shop voluntarily under a compromise. At the best the rights of the parties shall flow from the said compromise that the new shop would still be governed by the provisions of the U.P. Act No. 13 of 1972 notwithstanding the fact that the shop in question is a new construction exempt from the operation of the Act under Section 2(2) thereof.

A conjoint reading of the clauses (b) and (c) would show that a new construction includes building which has been raised in place of an existing building which has been wholly or partially demolished as also where a substantial addition has been made to an existing building and the existing building becomes only a minor part thereof, the whole of the building including the existing building shall be deemed to be constructed on the date of completion of said addition. It follows that if a major portion of a building is demolished and replaced by a “new construction”, the old existing construction which becomes minor part of the building would also be treated as new construction and existing part of the building would not exempt from the operation of the Act. If that is so, it does not follow to reason where a building has been completely demolished and replaced by a new building, why such building shall not be exempt from the operation of the Act.

For the reasons given above, we answer the question referred to us by holding that the provisions of the U.P. Act No. 13 of 1972 will not apply to new construction where under the agreement, a tenant voluntarily vacates the tenanted accommodation for demolition and new construction and after demolition and new construction, newly constructed premises is let out to the tenant. To put it differently, a new construction after demolition shall be exempt from the operation of provisions of the U.P. Act No. 13 of 1972 as provided under Section 2(2) of the Act notwithstanding the fact that the tenant who was earlier in occupation of the existing building voluntarily agreed to vacate it and in lieu thereof the landlord agreed to let the new construction out to such tenant after reconstruction. (Gopal Dass vs. Bal Kishan Dass; 2012 (5) ALJ 705)

Terms - “Charitable institution” and “religious institution”- Meaning of

The term "charitable institution" and "religious institution" both have been defined in Section 3(r) and (s) of Act, 1972 as under:

(r) "Charitable institution" means any establishment, undertaking, organisation or association formed for a charitable purpose and includes a specific endowment;

Explanation- For the purposes of this clause, the words "charitable purpose" includes relief of poverty, education, medical relief and advancement of any other object of utility or welfare to the general public or any section thereof, not being an object of an exclusively religious nature;

(s) "Religious institution" means a temple, math, mosque, church, gurudwara or any other place of public worship."

(emphasis added)

In order to constitute a "religious institution" it must be a temple, math, mosque, church, gurudwara or any other place of public worship.

In order to become a "charitable institution", formation of body must be for a charitable purpose which includes a specific endowment. The term "charitable purposes" has been explained by explanation to Section 3(r) providing that it shall include relief of poverty, education, medical relief and advancement of any other object of utility or welfare to the general public or any section thereof, not being an object of an exclusively religious nature. Which part of these definitions of "charitable institution" would apply would depend on the specific pleadings and evidence placed before the Court by the plaintiff or the party concerned who wants to exclude applicability of Act, 1972 which is otherwise applicable to the shop in question. (Radhey Shyam Kushwaha vs. Addl. District Judge; 2012(3) ARC 823 (All HC)

Ss. 11, 12, 13, 31—Unauthorised occupant—What amounts to—Possession of premises without consent of landlord would be termed as unauthorized occupant within meaning of Ss. 11, 12, 13 and 31 of Act

In terms of Section 13 of the Act, without an order of allotment, tenants status under the deeming provision is that of an unauthorized occupant and that of trespasser and the suit for getting back possession from the trespasser can also be filed. However, it does not debar the Rent Control and Eviction Officer/appropriate authority under the Act from setting in motion the machinery for declaring vacancy of the premises in dispute when he is of the opinion that the premises which comes within the ambit of the Rent Control Act is being occupies by the unauthorized occupant/trespasser without an allotment order. The U.P. Act No. 13 of 1972 does not make any distinction between the unauthorized occupant and the trespasser so as to limit the power of the Rent Control Eviction Officer/District Magistrate from initiating the proceedings under Section 12 of the Act particularly when the landlord fails to taken any eviction proceedings against the trespasser. The premises in the possession of an unauthorized occupant would be deemed to be vacant for the purpose of Rent control Act, even if an authorized occupant is included in to the premises contrary to the provision of the Act by the landlord himself, the legislature has not placed any restriction on the rent control authorities to initiate proceedings under Section 12 of the Act so far as the release of such premises which are deemed to be vacant under Section 12(4) of the Act is concerned.

If the person let out his house ignoring the provisions prohibiting the letting without allotment order or has occupied the premises forcefully without any allotment order would be an unauthorized occupant but also liable to be prosecuted under Section 31 of the Act and his possession being unauthorized cannot be recognized in the eye of law. (Smt. Reeta Singh vs. Rajendra Sharma; 2012 (5) ALJ 420)

Rule 17(1)(a) - Provisions under - Before, allowing an application of release of buildings under section 21(1) (b) of 1972 Act - Prescribed Authority required to satisfied essential conditions laid down U/R 17 of 1972

Rule 17(1)(a) of U.P. Urban Buildings Rules, 1972 contemplates that Prescribed Authority while considering an application on the ground of Section 21(1)(b) shall satisfy itself that the building requires demolition. Therefore, it is the satisfaction of Prescribed Authority regarding condition of building that it is dilapidated if he comes to the conclusion that it requires demolition. The satisfaction of Prescribed Authority, in my view, has been required under the Rules only to reassert the factum about condition of building, whether dilapidated or not and to avoid any mischief on the part of landlord to oust a tenant from a building which is though otherwise safe and in a good condition but to seek his ouster taking the plea of condition of building being dilapidated. (Vishambhar Dayal vs. VII Additional District Judge; 2012(3) 891 (All HC)

S. 18 – Revision - Locus Standi - Release order obtained by petitioner in fraudulent manner as there was no tenant in premises in question – Co-owner were in use and occupation of premises - Any person aggrieved by such order is entitled to file revision

Section 18 of Act, 1972 provides that no appeal shall lie from any order under Sections 16 or 19 but "any person aggrieved by a final order under any of the said Sections may, within 15 days from the date of such order, prefer a revision to the District Judge." The right to file a revision, therefore, has been conferred upon "any person who is aggrieved by a final order" passed by the authority concerned either under Section 16 or Section 19. It is not in dispute that order where against revision was filed was a final order under Section 16 of Act, 1972. The authority concerned declared deemed vacancy in the premises in question and passed order for release thereof in favour of petitioner and action was taken to execute the said order. Respondents 1 and 2 claimed that they were the actual occupant of premises in question and being co-owner were residing therein. Hence, in the garb of orders passed by competent authority under Section 16 of Act, 1972 against non existing tenants, they could not have been evicted. To execute the orders passed under Section 16 of Act, 1972, the competent authority had passed an order for providing Police help also. This led to a situation of breach of peace and law and order whereupon the Addl. City Magistrate-II had to pass an order on 3.11.2006 under Section 112 read with 107/116 Cr.PC. as to why proceedings under Section 107/116 be not initiated for maintaining peace. Copy of the said notice is Annexure 5 to writ petition which was issued to respondent Nos. 1 and 2 besides two others. It has not been disputed by learned counsel for petitioner that in furtherance of orders passed by RCEO on 13.4.2005, the petitioner took steps for vacation of premises in question and if the accommodation was occupied by respondents 1 and 2 they also ought to have been evicted there from. That being so, it cannot be said that respondents No. 1 and 2 were not the "persons aggrieved" so as to file a revision under Section 18 of the Act, 1972.

I am also of the view that here is a case where petitioner played fraud and misrepresentation in order to obtain orders dated 1.10.2004, 13.4.2005 and 30.7.2005 from competent authority under Section 16 of Act, 1972 and being the orders obtained by fraud, the same have rightly been set aside by Revisional Court.

Fraud vitiates everything. Though no submission, legal or otherwise, is sustainable in favour of petitioner, but even if, for the sake of argument, it is assumed that the same may prevail, still if the orders obtained by petitioner are result of a fraud or misrepresentation and this Court finds so, it is bound to set at nought the effect of such orders which are result of a fraud and misrepresentation of a party otherwise this Court shall be failing in its duty of judicial review giving substantial justice to the parties.

The litigation initiated by petitioner is founded on an apparent fraud and misrepresentation. In my view petitioner is also guilty of gross abuse of process of law and therefore here is not only a case where petitioner has to be non-suited but she must be saddled with an exemplary cost. (Kabita Mukharjee v. Smt Pinky Mookargee & Ors.; 2012(6) ALJ 78)

S. 20(2)(a) - Provincial Small Causes Courts Act, 1887, S.17 - Ejectment suit - Decreed ex-part - Recall of tenant allowed with condition - Revision against by landlord allowed tenant/petitioner not complied with mandatory provision of Section 17 of PSCC Act - Legality of

It is needless to say that the provisions contained in Section 17 of Small Causes Courts Act are mandatory, in nature. So there is no reason to raise any doubt that the nature of the proviso is not mandatory and directory. The matter has been dealt with the Hon'ble Apex Court in Kedar Nath v. Mohan Lal Kesarwari and Others; [2002 (20) LCD 551], in which Hon'ble Apex Court has traced the law on the point laid down in Mohd. Ramzan Khan v. Khubi Khan; AIR 1938 Lahore 18 up to Beena Khare v. VIIIth ADJ, Allahabad; (2000) 2 ARC 616, and has reached to the conclusion that right from pre-independent days, the law is being constantly followed that the provisions contained in Section 17 are mandatory in nature and even the nobility of the Court cannot dissolve the mandatory nature of the provisions. (Bindeshwari Prasad Soni vs. Additional District Judge Court, Balrampur; 2012(3) ARC 684 (All HC LB)

S. 20(2) (f) Province under – Evection of tenant - If ground under S. 20(2) (f) of Act found proved a decree of ejectment against tenant could be passed

The only question up for consideration is whether there is a denial or dispute of title of landlord by tenant attracting Section 20 (2) (f) of Act, 1972.

Section 20 (2) (f) of Act, 1972 provides a ground for eviction of tenants and reads as under:

"20.(2) (f) that the tenant has renounced his character as such or denied the title of the landlord, and that latter has not waived his right of re-entry or condoned the conduct of the tenant;

Counsel for parties have not disputed if such denial has taken place in the written statement during pendency of a suit for ejectment under Section 20 (2) (a) of Act, 1972, the landlord need not initiate any fresh proceedings but in the same suit, if the ground under Section 20 (2) (f) of Act, 1972 is found proved, a decree of ejectment against tenant can be passed. (Kunti Devi (Smt.) vs. III^rd ADJ; 2012(3) ARC 642 (All HC)

S. 20(4) – Expression ‘first date of hearing’ – Meaning of – Date of first hearing is when Court proposes to apply its mind

A three-Judge Bench of Apex Court also considered this issue in Siraj Ahmad Siddiqui v. Prem Nath Kapoor, 1993 (4) SCC 406 : (AIR 1993 SC 2525: 1993 All LJ 1250) and said as under:

The date of first hearing of a suit under the Code is ordinarily understood to be the date on which the Court proposes to apply its mind to the contentions in the pleadings of the parties to the suit and in the documents filed by them for the purpose of framing the issues to be decided in the suit. Does the definition of the expression 'first hearing' for the purposes of Section 20(4) mean something different? The "step or proceedings mentioned in the summons" referred to in the definition should we think, be construed to be a step or proceeding to be taken by the Court for it is, after all, a "hearing" that is the subject-matter of the definition, unless there be something compelling in the said Act to indicate otherwise; and we do not find in the said Act any such compelling provision. Further, it is not .possible to construe the expression "first date for any step or proceeding" to mean the step of filing the written statement, though the date .for that purpose may be mentioned in the summons, for the reason that, as set out earlier, it is permissible under the Code for the defendant to file a written statement even thereafter but prior to the first hearing when the Court takes up the case, since there is nothing in the said Act which conflicts with the provisions Of the Code in this behalf. We are of the view, therefore, that the date of first hearing as defined in the said Act is the date on which the Court proposes to apply its mind to determine the points in controversy between the parties the suit and to frame issues, if necessary."

Again it was considered in Sudarshan Devi v. Sushila Devi, 1999 (8) SCC 31: (AIR), 999 SC 3688: 1999 All U 2394) and held that the date fixed for hearing of the matter is the date of first hearing and not the date fixed for filing of written statement. The Court observed that emphasis in the relevant provision is on the word “hearing”.

It also held that once the date of “first hearing” is determined and thereafter the case is adjourned, the date of first hearing of the suit would not change on every adjournment of the suit for final hearing.

Thus the effective date of first hearing of the suit could be, when the Court proposed to apply its mind. (Satya Nariain Tiwari v. Pt. Keelkanth Trust, Akalganj, City and District Etawah; 2012 (6) ALJ 319)

S. 21- Release of premises on ground of personal requirement, while landlord had many other premises wherein he has already business - Validity of

In Gaya Prasad, the Court said that for the malady of judicial system of delayed justice, a landlord should not suffer. Every day may result in some kind of development and, therefore, every subsequent development would not deny claim of landlord on the pretext of a subsequent development since no one can be expected to stay idle for all times to come till a litigation is going on. It may happen that the lifetime of litigation may be more than that of litigant-landlord himself. Therefore, the judicial tardiness should not cause an irreparable loss to a landlord. It would be unjust to shut the door of justice to a landlord on the end of litigation after passing through various levels of litigation to deny him justice and relief sought only on the ground of certain developments occurred pendente lite because the tenant has been successful in prolonging litigation for an unduly extended long period. However, if the cause of action is submerged in such subsequent events, in other words, if the subsequent events are such as to satisfy the very requirement of landlord in its entirety, the same can be seen and there is no allergy in considering and taking note of subsequent events of importance which may justify remoulding of relief not on account of mere pendency of litigation but on account of the position and status of landlord and other relevant factors.

This matter was further examined in detail in Kedar Nath Agrawal and having considered a number of authorities on the subject, the Apex Court, in para 16 of judgment, crystallized three aspects when subsequent events can be taken note by a Court of law, namely:

(i) The relief claimed originally has, by reason of subsequent change of circumstances, become inappropriate; or

(ii) It is necessary to take notice of subsequent events in order to shorten litigation; or

(iii) It is necessary to do so in order to do complete justice between the parties.

The Appellate Court, in the present case, without looking to binding authorities of Apex Court, as discussed above, and by brushing aside various material available on record as also the applications filed by petitioner to bring on record the subsequent events having material bearing, by simply observing that no subsequent events can be considered, has clearly erred in law. The impugned judgment, therefore, cannot sustain.

In the result, writ petition is allowed to the extent that the impugned appellate judgment dated 11.10.2004 (Annexure 1 to writ petition) is hereby set aside. The matter is remanded to Appellate Court to rehear the appeal of petitioner in the light of observations made above and in accordance with law and to decide the same afresh after hearing the concerned parties. (Chand Ratan Laddha vs. Additional District Judge; 2012(6) ALJ 764 (All HC)

Ss. 21(1) (a) & 22 - Release application against petitioners/tenant allowed directing petitioners to handover possession of premises in question to plaintiff - Respondent/landlord - Appeal against dismissed - Writ petition Legality of

Trial Court vide order dated 18.11.2000 has allowed respondent's application filed under Section 21(1)(b) of Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as "Act, 1972") directing petitioners to vacate and hand over possession of premises in question to the plaintiff-respondent-landlord for the purpose of demolition and reconstruction and appellate order dated 11.9.2002 passed by District Judge, Kanpur dismissing petitioners' appeals. There were two appeals before the District Judge but both were filed by petitioners-tenants against the same judgment of the Trial Court dated.

Learned counsel for the petitioners contended that paras 10 and 11 of release application shows that respondent - landlord also sought relief for release of accommodation in question under Section 21(1)(a) of Act, 1972 though the application has been decided under Section 21(1)(b) of Act, 1972. Since the application was filed within three years after the date of purchase without complying with the requirement of proviso to Section 21(1)(a), the application was not maintainable.

A bare reading thereof shows that though landlord said that accommodation available to him is insufficient yet he has not propounded his case on the ground of personal need since he had purchased the building in question for its demolition and reconstruction. Therefore, in substance and for all purposes the aforesaid avements do not constitute to make out a case under Section 21(1)(a) of Act, 1972. An application has to be read in its entirety and having gone through the same I find that it was an application filed under Section 21(1)(b) of Act, 1972 for demolition and reconstruction and not on the ground of personal need. The landlord himself has stated that despite the fact that accommodation available to him is insufficient but he has not founded his application on that ground but has proceeded to make out a case under Section 21(1)(b) of Act, 1972. It is how both the Courts below have also construed, understood and adjudicated the matter and court entire agree thereto.

Learned counsel for the petitioner has not been able to point out any apparent error in the two judgments under challenge warranting interference under Article 226/227 of the Constitution. The scope of judicial review under Article 227 is very limited and narrow as discussed in detail by this Court in Civil Misc. Writ Petition No.11365 of 1998. (Ganga Charan vs. Santosh Kumar Awasthi; 2012(3) ARC 722 (All HC)

S. 21(1) (a) - Release application - Dismissed by both Courts below, holding petitioner failed to prove bonafide need - Sustainability of

In instant cases considering all the facts and circumstances and evidences on record, both the Courts below have recorded concurrent findings of fact and unless these findings are shown perverse or contrary to record resulting in grave injustice to petitioner, in writ jurisdiction under Article 226/227, this Court exercising restricted and narrow jurisdiction would not be justified in interfering with the same. In supervisory jurisdiction of this Court over subordinate Courts, the scope of judicial review is very limited and narrow. It is not to correct the errors in the orders of the court below but to remove manifest and patent errors of law and jurisdiction without acting as an appellate authority. (Sita Ram Bijpuriya vs. State of UP; 2012(3) ARC 746 (All HC)

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U.P. Urban Buildings (Regulation of Letting, Rent & Eviction) Rules, 1972

Rules 8 & 9 - Ascertainment and Notice of Vacancy - Held, before allotment of an accommodation procedure under rules 8 & 9 observed mandatory

In this case, the premises in dispute namely House No. 8(8/1) Mohalla Bulaqipur, Gorakhpur was earlier in tenancy of one Abdul Halim Khan. The petitioner, Smt. Saida Bano filed suit no. 7 of 1981 against Abdul Halim Khan for ejectment and recovery of arrears of rent and damages for use and occupation. The suit was decreed on 29.07.1982. He (erstwhile tenant Abdul Halim Khan) came to this Court in Civil Revision No. 581 of 1982 wherein an interim order was passed on 12.10.1982 restraining his ejectment from the premises in dispute subject to deposit of decretal amount within a period of one month and to continue to pay current monthly damages by 15th of every month. Ultimately, the said revision was dismissed on 23.09.1985.

In the meantime, it appears, that, respondent no. 2 moved an application before R.C.E.O. for allotment of the house in dispute where after he (R.C.E.O.) directed for inspection. The Inspector submitted report on 25.03.1983 whereupon R.C.E.O. declared vacancy and ultimately allotted the building in dispute to respondent no. 2 by order dated 14.04.1982.

Learned counsel for the petitioner submitted that entire allotment proceedings are fraudulent inasmuch as when revision was pending before this Court and an interim order was passed, there could not have been any occasion to R.C.E.O. to declare the premises in dispute vacant and go on with allotment proceedings. Moreover, the petitioner/landlord was never informed of the aforesaid proceedings, no notice was ever served and rules 8 and 9 were never followed.

Further, respondent no. 2 has claimed that he was staying and occupying the premises in question since 18th April, 1981, when, admittedly it was not vacated by erstwhile tenant at all. All these facts go to show without any manner of doubt that there was a clear collusive action/proceedings at the behest of erstwhile tenant, respondent no. 2. It is also unfortunate that the revisional court has not appreciated all these facts and in a sheer reckless manner has decided the revision against the petitioner. Interestingly, within 20 days and odd the allotment proceedings have been completed by R.C.E.O. and nothing has been placed on record to show that in this process the landlord was ever informed of the aforesaid proceedings by him complying the requirement of Rules 8 and 9 of U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Rules, 1972.

This Court repeatedly has held that before allotment of an accommodation the procedure laid down in Rules 8 and 9 of Rules 1972 is mandatory. (Saida Banu (Smt.) vs. VIIth Addl. District Judge, Gorakhpur; 2012 (3) ARC 586 (All HC)

S. 21(8) - Applicability of Act to Consumer’s Co-operative Society - Consideration of

The term "Public Sector Corporation" has been defined in Section 3(p) of Act, 1972 and reads as under:

"(p) "Public sector corporation" means any corporation owned or controlled by the Government and includes any company as defined in Section 3 of the Companies Act, 1956, in which not less than fifty percent of the paid up share capital is held by the Government."

Admittedly petitioner's Cooperative Society is not a Company registered under Companies Act, 1956. In order to qualify to be a Corporation owned or controlled by Government there is not even a whisper in the entire writ petition that petitioner's Cooperative Society satisfy the said requirement.

In para 3 of objection filed by petitioner before RCEO (Annexure-3 to the writ petition) it has only said that petitioner is a Central Cooperative Store, deals with commercial transactions with consumers and is a commercial establishment. It nowhere even mention that it is controlled or owned by Government in any manner. On the contrary, learned counsel for the petitioner, during the course of argument, states that members of Cooperative Society are individuals. In these circumstances, the order impugned in the writ petition cannot be faulted and it cannot be said that petitioner-Cooperative Society satisfies the requirement of exempted categories mentioned in Section 21(8) of Act, 1972. (Central Consumer Coop. Stores Ltd., vs. Vipin Kumar; 2012(3) ARC 687 (All HC)

S. 30(2) - Scope of - No provision under which during pendency of suit for ejectment a tenant can restart to deposit rent u/s 30(2) instead of court below in which ejectment suit is pending

This writ petition is directed against the order dated 09.09.2004 passed by Additional District Judge, Court No. 1, Basti allowing respondents' Revision No. 218 of 2000 and setting aside the Trial Court's order dated 28.08.2000 permitting petitioner to deposit rent from January 1990 and onwards observing that during aforesaid period S.C.C. Suit No. 3 of 1989 was pending before Trial court and, therefore, the petitioner ought to have deposit rent in the pending case and not under Section 30 sub-section (2) of U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972.

Learned counsel for the petitioner could not point out any provision under which even during pendency of a suit for ejectment a tenant can resort to deposit rent under Section 30(2) instead of court below in which ejectment suit is pending.

This Court in Shiv Raj Singh Vs. Sri Jitendra Babu and others, Writ Petition No. 19656 of 2003, decided on 21.05.2003 has clearly held that after the knowledge of pendency of suit of ejectment on the ground of default, the tenant is not authorized to institute the case for deposit of rent under Section 30 of Act, 1972 and where such a case has been instituted prior to receiving of notice of termination of tenancy and demand of rent, tenant is not authorized to continue to deposit the rent after receiving the said notice. (Shiv Prasad@Nate vs. Additional District Judge; 2012(3) ARC 634 (All HC)

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Workmen’s Compensation Act

Ss. 2(1)(i) & (4) – Total disablement – Compensation – Determination of

The respondent No. I -claimant was a driver of a lorry bearing registration No. KA 02-6818 which belonged to respondent No. 2 and was insured by appellant. An accident occurred on 24.5.2006 and the respondent No. 1 sustained grievous injuries, i.e., fracture of both bones of right leg, resulting in amputation above knee. The claim application filed which was contested after rising of issues and holding inquiry, was allowed and the compensation as above was directed to be exposited. Feeling aggrieved, the respondent No. 2 in the claim petition, i.e., the appellant, has filed this appeal.

In S. Suresh v. Oriental Insurance Co. Ltd., 2010 ACJ 487 (SC), it has been held that:

The case on hand is not different from the one decided by the Supreme Court in the decisions noticed supra. (New India Assurance Co. Ltd. vs. N. Venkatesh and another; 2012 ACJ 2503)

Ss. 3, 4(1)(C)(iii) & 30 – Compensation – Disability - Although doctor has certified 40% permanent disability - But since the workman cannot discharge the work of conductor - Therefore for him the disability would be 100%- and hence by impugned award the Commissioner granted compensation of Rs. 5,37,300/- alongwith 9% interest from date of application - Commissioner has marshalled and considered evidence of parties and doctor - Has given a categorical finding that the workman has sustained 100% disability - There is no interference required with

On minutely going though the statement of doctor it is gathered that although he has stated that there is a disability of 40% on account of the fracture of the hip bone, but, now the workman is totally unable to discharge the work of Conductor and therefore according to me for the workman the permanent disability is 100% since he cannot now discharge the work of Conductor.

There is evidence of the workman/respondent that now he is totally unable to discharge the work which he was doing earlier to the accident and there is a positive finding of Commissioner in that regard. In the present case since the Commissioner has Marshaled and considered the evidence of the parties vis-a-vis to each other and on the basis of evidence came on record has given a categorical finding that workman sustained 100% disability, therefore, this decision is distinguishable on the facts. (National Insurance Co. Ltd., Jabalpur Vs. Ram Kishore Mishra and others; (2012 (135) FLR 754) (MP HC)

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Words & Phrases

Accused – Despite having been mentioned in the rukka, the person not arrayed as accused

Learned counsel for the appellant in the forefront submitted that having regard to the specific reference made in the rukka about the presence of Surjit Singh but yet not being made a party to the crime and non-consideration of the grievance of the said Surjit Singh with reference to the extent of injuries sustained by him which according to him were inflicted upon him by the complainant party, the prosecution case was not truthful, tampering of the whole case with a view to pin down the appellants and the other accused by fabricating the evidence. Learned counsel for the State in his submission, however, pointed out that there could not have been any false case fastened on the appellants inasmuch as the rukka which was prepared at 10.30 p.m. at the hospital was received at the police station and thereafter the law was set in motion by registering the FIR without any loss of time. According to learned counsel, the rukka was written at 10.30 p.m. and the FIR was registered at 10.35 p.m. wherein the entire allegations brought out in the rukka were duly carried out and in the said circumstances, there was no basis at all for submission made on behalf of the appellants alleging false case foisted against the appellant. Court find force in the said submission of learned counsel for the State. As far as non-inclusion of Surjit Singh (OW-2) as an accused or as a witness is concerned, though in the first blush, it may appear as though some deliberate attempt was made at the instance of the prosecution to suppress certain vital factors, on a close scrutiny, Court find that except referring to the name of Surjit Singh in the rukka, there was no specific overt act alleged against him in regard to his participation in the actual crime of assault or inflicting of injuries or use of any weapon against either the deceased or any other person. Therefore, the non-inclusion of Surjit Singh in the array of accused by the prosecution cannot be taken so very seriously in order to doubt the whole genesis of the case alleged against the appellant and the other accused. (Avtar Singh vs. State of Haryana, and Kirpal Singh @ Pala & Ors vs. State of Haryana & Ors.; 2012(3) ARC 634)

“bailable warrant” and “non-bailable warrant”

No such terminology found in Cr.P.C. as well as in Sch. II Form 2 – Issuance of such warrant by courts. It is true that neither S. 70 nor S. 71 appearing in Ch. VI Cr.P.C. enumerating processes to compel appearance, as also Sch. II Form 2, uses expression like “non-bailable”. However, S. 71(2) specifies endorsements which can be made on a warrant. Endorsement of expression “non-bailable” on a warrant is to facilitate executing authority as well as person against whom warrant is sought to be executed, to make them aware as to nature of warrant that has been issued. Merely, because Form 2 issued under S. 476 and set forth in Sch. II nowhere uses expression “bailable” or “non-bailable” warrant, that does not prohibit courts from using said word or expression while issuing warrant or even to make endorsement to that effect on warrant so issued. (Raghuvansh Dewanchand Bhasin v. State of Maharashtra and another; (2012) 9 SCC 791)

“Dowry” —Meaning of

The Supreme Court in Appasaheb vs. State of Maharashtra, (2007) 9 SCC 721, while dealing with the similar issue and definition of the word “dowry” held as under: (SCC p. 727, para 11)

“11…… A demand for money on account of some financial stringency or for meeting some urgent domestic expenses or for purchasing manure cannot be termed as a demand for dowry as the said word is normally understood.”

In this case, the court has examined as to whether the demand by the appellant for establishment of his tailoring business could be held to be a demand for dowry and further whether for that demand, the ill-treatment given by the appellant to his wife was so grave that she had been driven to the extent that she has to commit suicide. But this has not proved here. (Rohtash vs. State of Haryana; (2012) 3 SCC (Cri) 287)

“Goods” and “Luggage” – Difference explained

‘Luggage’, on the other hand, is explained in the same dictionary as the trunks, suitcases and other baggage of a traveller. The emphasis in the context of describing ‘luggage’ is on the utility in the course of travel. These are articles or substances that are essential for a person, when he is on the travel. They may include the clothes or the other items such as soaps and limited quantity of eatables and certain materials of daily utility. ‘Goods’, on the other hand, have no relevance for the use by a person, while travelling. The only purpose of carrying them in a vehicle is to transport or shift them from one place to another. Once certain articles do not constitute luggage, they need to be treated as goods irrespective of the quantity. Rice and cement cannot be treated as luggage since they are not used or utilized by a person in the course of his traveling. (P. Osuramma vs. P. Ramachandra and another; 2012 ACJ 2588)

“Harassment”—Includes in its connotative expanse torment and vexation

In P. Ramanatha Aiyar’s Law Lexicon, Second Edition, the term “harass” has been defined, thus:-

“Harass, “injure” and “injury” are words having numerous and comprehensive popular meanings, as well as having a legal import. A line may be drawn between these words and the word “harass” excluding the latter from being comprehended within the word “injure” or “injury”. The synonymous of “harass” are: To weary, tire, perplex, distress, tease, vex, molest, trouble, disturb. They all have relation to mental annoyance, and a troubling of the spirit. (Dr. Mehmood Nayyar Azam vs. State of Chhattisgarh and Ors.; 2012 Cr.L.J. 3934 (SC)

“Hearing” - Meaning of

So far as this aspect is concerned the provisions of Section 403, Cr.P.C., provides that no party has a right to be heard either personally or through pleader before any Court exercising revisional powers, but the Court may, if it thinks fit, hear any party, either personally or by pleader. Thus section 403 confers discretionary power upon the Court to allow any party to be heard either personally or by pleader. (Jalaluddin vs. State of U.P.; 2012(6) ALJ 696 (All HC)

“Inquiry” and “Enquiry” – Meaning of

Age determination inquiry contemplated under the JJ Act and Rules has nothing to do with an enquiry under other legislations, like entry in service, retirement, promotion, etc. There may be situations where the entry made in the matriculation or equivalent certificates, date of birth certificate from the school first attended and even the birth certificate given by a corporation or a municipal authority or a panchayat may not be correct. But court, Juvenile Justice Board or a Child Welfare Committee functioning under the JJ Act is not expected to conduct such a roving enquiry and to go behind those certificates to examine the correctness of those documents, kept during the normal course of business. (Ashwani Kumar Saxena v. State of Madhya Pradesh; (2012) 9 SCC 750)

“Instigation” and “Abatement” – Meaning of

What constitutes “instigation” must necessarily and specifically be suggestive of the consequences. A reasonable certainty to incite the consequences must be capable of being spelt out. Moreso, a continued course of conduct is to create such circumstances that the deceased was left with no other option but to commit suicide.

The offence of abetment of instigation depends upon the intention of the person who abets and not upon the act which is done by the person who has abetted. The abetment may be by instigation, conspiracy or intentional aid as provided under Section 107 IPC. However, the words uttered in a fit of anger or omission without any intention cannot be termed as instigation. (Praveen Pradhan v. State of Uttaranchal and another; (2012) 9 SCC 734)

“Perverse” and “Perversity of approach”

The High Court had declined to interfere with the judgment and decree of the courts below on ground that they were based on concurrent findings of fact. The plea of perversity of approach though raised was not adverted to. Any finding which is not supported by evidence or inferences is drawn in a stretched and unacceptable manner can be said to be perverse. The Supreme Court in exercise of power under Article 136 of the Constitution can interfere with concurrent findings of fact, if the conclusions recorded by the High Court are manifestly perverse and unsupported by the evidence on record.

The trial court as well as the first appellate court disbelieved the evidence of most of the witnesses cited on behalf of the husband on the ground that they were interested witnesses. In a matrimonial dispute, it would be inappropriate to expect outsiders to come and depose. The family members and sometimes the relatives, friends and neighbours are the most natural witnesses. The veracity of the testimony is to be tested on objective parameters and not to be thrown overboard on the ground that the witnesses are related to either of the spouse. Besides, the allegations made in the written statement, the dismissal of the case instituted by the wife under Section 494 IPC the non-judging of the material, regard being had to the social status, the mental make-up, the milieu and the rejection of subsequent events on the count that they were subsequent to the filing of the petition for divorce and also giving flimsy reasons not to place reliance on the same, deserve to be tested on the anvil of “perversity of approach”. (Vishwanath Agrawal vs. Sarla Vishwanath Agrawal; (2012) 3 SCC (Cri) 347)

Prejudice – Interpretation of

‘Prejudice’, is incapable of being interpreted in its generic sense and applied to criminal jurisprudence. The plea of prejudice has to be in relation to investigation or trial, and not with respect to matters falling outside their scope. Once the accused is able to show that there has been serious prejudice caused to him, with respect to either of these aspects, and that the same has defeated the rights available to him under jurisprudence. (Darbara Singh vs. State of Punjab; 2012(6) Supreme 584)

“Prejudice” – Meaning of

“Sterling witness”—Witnesses can be called as a “sterling witness” whose version can be accepted by court without any corroboration and based on which the guilty can be punished

‘Sterling witness’ should be of a very high quality and caliber, whose version should, therefore, be unassailable. The Court considering the version of such witness should be in a position to accept it for its face value without any hesitation. To test the quality of such a witness, the status of the witness would be immaterial and what would be relevant is the truthfulness of the statement made by such a witness. What would be more relevant would be the consistency of the statement right from the starting point till the end, namely, at the time when the witness makes the initial statement and ultimately before the Court. It should be natural and consistent with the case of the prosecution qua the accused. There should not be any prevarication in the version of such a witness. The witness should be in a position to withstand the cross-examination of any length and strenuous it may be and under no circumstance should give room for any doubt as to the factum of the occurrence, the persons involved, as well as, the sequence of it. Such a version should have co-relation with each and every one of other supporting material such as the recoveries made, the weapons used, the manner of offence committed, the scientific evidence and the expert opinion. The said version should consistently match with the version of every other witness. It should be akin to the test applied in the case of circumstantial evidence where there should not be any missing link in the chain of circumstances to hold the accused guilty of the offence alleged against him. Only if the version of such a witness qualifies the above test as well as other similar such tests to be applied, it can be held that such a witness can be called as a ‘sterling witness’ whose version can be accepted by the Court without any corroboration and based on which the guilty can be punished. (Rai Sandeep @ Deepu vs. State of NCT of Delhi; 2012 Cr.L.J. 4119 (SC)

“Torture” —Connotative expanse

The term “torture” also engulfs the concept of torment. The word “torture” in its denotative concept includes mental and psychological harassment. The accused in custody can be put under tremendous psychological pressure by cruel, inhuman and degrading treatment. (Dr. Mehmood Nayyar Azam vs. State of Chhattisgarh and Ors.; 2012 Cr.L.J. 3934 (SC)

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Statutory Provisions

High Court of Judicature at Allahabad [Amendment (Admin ‘G-I’) Section], Noti. No. 241/VIII c-2 Correction Slip No. 244, dated June 11, 2012, published in the U.P. Gazette, Part 1-Ka, dated 16the June, 2012, pp. 431-439, No. 24

In exercise of the powers conferred by Article 255 of the Constitution of India and all other powers enabling it in this behalf, the High Court of Judicature at Allahabad is pleased to make the following amendment in Allahabad High Court Rules, 1952 Volume I, with effect from the date of its notification by the Court.

AMENDMENT

1. Amendment in Rule 3 of Chapter XVIII.- After sub-rule (3) of Rule 3 of chapter XVIII of rules, following sub-rules (4) and (5) shall be added:

“(4) In first paragraph of application under Section 482 Cr.P.C., criminal revision, transfer application or writ petition (or supporting affidavit thereof) it should be mentioned that no earlier application/criminal revision/writ petition has been filed in Allahabad High Court or Lucknow Bench against the impugned order (if any) on the same or related cause of action or seeking the same or related relief’s, and no such criminal revision or transfer application for the same relief was pending in the lower court, if any such application was pending, details of the same are to be furnished. Any substantial omission or misstatement on these facts would result in dismissal of the petition, imposition of costs and persecution for perjury.

(5) The applicants/appellants/petitioner’s parentage, crime number, police station, district, case number, court’s designation, date of impugned order (whatever may be applicable) shall be mentioned on the opening page of the application under Section 482 Cr.P.C., Criminal revision, bail application, transfer application, writ petition or criminal appeal.”

2. Amendment in Rule 7 of Chapter XVIII.- After the words “Before the petition of appeal or a leave petition under Section 378 Cr.P.C. or application for revision” in Rule 7 of Chapter XVIII of the rules “application under Section 482 Cr.P.C., application for bail, application for bail cancellation transfer application and jail appeal” be added.

3. Amendment in Rules 27 and 31 of Chapter XVIII.- Rules 27 and 31 of Chapter XVIII of the rules shall be amended as follows:

27. Paper-book in criminal Revision of Jail Appeal- Subject to Rule 25 the paper-book in criminal revision, jail appeal, or any other case not provided for shall, unless otherwise ordered, consist of High Court papers and such papers on the record of the court or courts below as may be necessary:

Provided that a typewritten paper-book shall, subject to any orders passed by the Chief Justice, be prepared in a case which may be heard by a Davison Bench. Copies of legibly written papers may be prepared by photocopying in the paper book.

Where the copy of the judgment included in High Court papers is not in English or in the language of the State, a translation of such judgment in English shall also be included in the paper book.

31. Preparation of paper-book- In all cases in which a sentence of death has been passed or notice has been given to the accused to show cause why his sentence should not be enhanced and the offence is one in which a sentence of death may be passed or appeals under Section 374(2) or under sub-section (1) or (2) Section 378 of the Code of Criminal Procedure, 1973, a printed paper-book shall be prepared, in appeals under sub-section (4) of Section 78 of the Code of Criminal Procedure, 1973 and in cases covered by Rules 25,26,29 and 30 a typed written paper book shall be prepared. Copies of legible written papers may be prepared by photocopying in the paper book.

Where a reference has been made by the Court of Session under Section 366 of the Code of Criminal Procedure, 1973, for the confirmation of the sentence of death passed by him and an appeal has also been presented by a person convicted in the same case, a single printed paper book shall be prepared:

Provided that no paper book shall be prepared in case which may be heard by the Judge sitting alone, unless specifically directed by the court.”.

4- Amendment in Chapter XXVII of the rules.- Chapter XXVII of the rules shall be amended as under:

“Reference and Appeals under the Income Tax Act, 1961 and other Acts including Revisions under U.P. VAT Act etc.

1- Title of application –(1) An Application under sub-section (2) of Section 256 of the Income Tax Act, 1961 (hereinafter referred to in this chapter as the Act) shall be entitled:

In the High Court of Judicature at Allahabad, Income Tax Cases No. ........ of ....... under sub-section (2) of Section 256 of the Income Tax Act, 1961.

........................................................................................................Applicant

Versus

.....................................................................................................Opposite party

(2) An Appeal under Section 260-A of the Income Tax Act, 1961, shall be titled: In the High Court of Judicature at Allahabad. Income Tax Appeal No. ............. of ...................Under Section 260-A of the Income Tax Act, 1961.

Versus

......................................................................................... Opposite Party.

2- Array of parties – In an application presented on behalf of the assessee the opposite party shall be the commissioner of income Tax and in a application or presented on behalf of the Commissioner of Income Tax, the assessee.

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English translation of Karmic Anubhag-2, Noti. No. 18/II/81-ka-2-2012, dated June 6, 2012, published in the U.P. Gazette, Extra., Part 4, Section (ka), dated 6^th June, 2012, pp. 2-3

In exercise of the powers under the proviso to Article 309 of the Constitution, the Governor is pleased to make the following rules to amending the Uttar Pradesh Recruitment to Services (Age Limit) Rules, 1972.

1- Short title and commencement. – (1) These rules may be called the Uttar Pradesh Recruitment to Service (Age Limit) (Tenth Amendment) Rules, 2012.

(2) The shall come into force at once.

2- Amendment of Rule 2.- In the Uttar Pradesh Recruitment to Services (Age Limit) Rules, 1972 for the existing Rule 2 set out in Column 1 below, the rule as set out in Column 2 shall be substituted, namely-

Column 1

Existing rule

Column 2

Rule as hereby substituted

2- Maximum Age Limit.- The upper age limit for recruitment to all such service and posts under the rule making power of the Governor, for which the upper age limit is thirty-two years, shall be thirty-five years.

Provided that where advertisement has been made before the commencement of the Uttar Pradesh Recruitment to services (Age Limit) (Tenth Amendment) Rules, 2012, the upper age limit shall be as it existed before the commencement of the said rules.

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English Translation of Samaj Kalyan Anubhag-2, Noti. No. 893/XVII-2/2012-01(14)/2008, dated August 7, 2012, published in the Uttarakhand Gazette, Extra., Dated 7^rd August, 2012, pp. 1-2

In exercise of the powers conferred by sub-section (1) of Section 7 of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 (Central Act No. 56 Year 2007), the Governor is pleased to constitute a Maintenance Tribunal in every sub-division for the purpose of adjudication and deciding upon the order for maintenance under Section 5 of the said Act.

2- The Governor is also pleased to direct that the said Tribunal shall be presided by the Sub-Divisional Magistrate of the concerned sub-divisions.

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Ministry of Personnel, Public Grievances and Pensions (Deptt. of Personnel and Training), Noti. No. G.S.R. 603(E), dated July 31, 2012, published in the Gazette of India, Extra., Part II, Section 3(i), dated 31^st July, 2012, pp,5,8, No. 390

In exercise of the powers conferred by Section 27 of the Right to Information Act, 2005 (22 of 2005) and in supersession of the Central Information Commission (Appeal Procedure) Rules, 2005 and the Right to Information (Regulation of fee and Cost) Rules, 2005 except as respects things done or omitted to be done before such supersession, the Central Government hereby makes the following rules, namely—

1- Short title and commencement. –(1) These rules may be called the Right to Information Rules, 2012.

(2) They shall come into force on the date of their publication in the official Gazette.

2- Definitions. – In these rules, unless the context otherwise requires,--

(a) “Act” means the Right to information Act, 2005 (22 of 2005);

(b) “Commission” means the Central Information Commission constituted under sub-section (1) of Section 12 of the Act;

(c) “First Appellate Authority” means an officer in the public authority who is senior in rank to the Central Public Information Officer to whom an appeal under sub-section (1) of Section 12 of the Act lies;

(d) “Registrar” means an officer of the commission so designated and includes an Additional Registrar, Joint Registrar and Deputy Registrar;

(e) “Section” means a section of the Act;

(f) All other words and expressions used herein but not defined in these rules shall have the same meanings to them in the Act.

3- Application Fee.—An application under sub-section (1) of Section 6 of the Act shall be accompanied by a fee of Rupees Ten and shall ordinarily not contain more than five hundred words, excluding Annexure, containing address of the Central Public Information Officer and that of the applicant:

Provided that no application shall be rejected only on the ground that it contains more than five hundred words.

4- Fees for providing information.—Fee for providing information under sub-section (4) of Sections 4 and sub-section (1) and (5) of Section 7 of the Act shall be charged at the following rates, namely—

(a) Rupees Two for each page in A-3 or smaller size paper;

(b) Actual cost or price of a photocopy in large size paper;

(d) Rupees Fifty per diskette or floppy;

(e) Price fixed for a publication or Rupees Two per page of photocopy for extracts from the publication;

(f) No fee for inspection of record for the first hour of inspection and a fee of Rupees 5 for each subsequent hour or fraction thereof; and

(g) So much of postal charge involved in supply of information that exceeds fifty rupees.

5- Exemption from Payment of Fee.—No fee under Rule 3 and Rule 4 shall be charged from any person who is below poverty line provided a copy of the certificate issued by the appropriate Government in this regard is submitted along with the application.

6- Mode of Payment of Fee.—Fees under these rules may be paid in any of the following manner, namely—

(a) In cash, to the public authority or to the Central Assistant Public Information officer of the public authority as the case may be, against a proper receipt; or

(b) By demand draft or bankers cheque or Indian Postal Order payable to the Accounts Officer of the public authority; or

(c) By electronic means to the Accounts officer of the public authority, if facility for receiving fees through electronic means is available with the public authority.

7- Appointment of Secretary to the Commission.— The Central Government shall appoint an officer not below the rank of additional Secretary to the Government of India as Secretary to the Commission.

8- Appeal to the Commission.—Any person aggrieved by an order passed by the First Appellate Authority or by non-disposal of his appeal by the First Appellate authority, any file an appeal to the Commission in the format given in the Appendix and shall be accompanied by the following documents, duly authenticated and verified by the appellant, namely—

(i) a copy of the application submitted to the Central Public Information Officer;

(ii) a copy of the reply received, if any, from the Central Public Information Officer;

(ii) a copy of the appeal made to the First Appellate Authority;

(iv) a copy of the order received, if any, from the First Appellate Authority;

(v)copies of other documents relied upon by the appellant and referred to in his appeal; and

(iv) an index of the documents referred to in the appeal.

9- Return of Appeal.—An appeal may be returned to the appellant, if it is not accompanied by the documents as specified in Rule 8, for removing the deficiencies and filing the appeal complete in all respects.

10- Process of Appeal. --- (1) on receipt of an appeal, if the commission is not satisfied that it is a fit case to proceed with, it may, after giving an opportunity of being heard to the appellant and after recording its reasons, dismiss the appeal:

Provided that no appeal shall be dismissed only on the ground that it has not been made in the specified format if it is accompanied by documents as specified in Rule 8.

(2) The commission shall not consider an appeal unless it is satisfied that the appellant has availed of all the remedies available to him under the Act.

(3) For the purposes of sub-rule (2), a person shall be deemed to have availed of all the remedies available to him under the Act:

(a) if he had filed an appeal before the First Appellate Authority and the First Appellate Authority or any other person competent to pass order on such appeal had made a final order on the appeal; or

(b) where no final order has been made by the First Appellate Authority with regard to the appeal preferred, and a period of forty-five days from the date on which such appeal was preferred has elapsed.

11- Procedure for deciding appeals.—The Commission, while deciding an appeal may—

(i) receive oral or written evidence on oath or on affidavit from concerned of interested person;

(ii) peruse or inspect document, public records or copies thereof;

(iii) inquire through authorized officer further details of facts;

(iv) hear central Public Information Officer, Central Assistant Public Information Officer of the First Appellate Authority, or such person against whose action the appeal is preferred, as the case may be;

(v) hear third party; and

(vi) receive evidence on affidavits from Central Public Information Officer, Central Assistant public Information Officer, First Appellate Authority and such other person against whom the appeal lies or the third party.

12- Presence of the appellant before the Commission.—(1) The appellant shall be informed of the date at least seven clear days before the date of hearing.

(2) The appellant may be present in person or through his duly authorises representative or through video conferencing, if the facility of video conferencing is available, at the time of hearing of the appeal by the Commission.

(3) Where the Commission is satisfied that the circumstances exist due to which the appellant is unable to attend the hearing, then, the Commission may afford the appellant another opportunity of being heard before a final decision is taken or take any other appropriate action as it may deem fit.

13- Presentation by the Public Authority.—The public authority may authorize any representative or any of its officers to present its case.

14- Service of notice by Commission.-- The public authority may issue the notice by name, which shall be served in any of the following mode, namely—

(i) service by the party itself;

(ii) by hand delivery (dasti) through Process Server;

(iii) by registered post with acknowledgement due;

(iv) by electronic mil in case electronic address is available.

15- Order of the Commission.-- The order of the Commission shall be in writhing and issued under the seal of the Commission duly authenticated by the Registrar or any other officer authorized by the Commission for this purpose.

APPENDIX

FORMAT OF APPEAL

(See Rule 8)

Name and address of the appellant
name and address of the Central Public Information Officer to whom the application was addressed
Name and address of the Central Public Information Officer who gave reply to the application
name and address of the First Appellate Authority who decided the First Appeal
Particulars of the application
Particulars of the order (s) including number, if any, against which the appeal is preferred
Brief facts leading to the appeal
Prayer or relief sough
Grounds for the prayer of relief
Any other information relevant to the appeal
Verification/authentication by the appellant

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English translation of Nyaya Anubhag-2, (Adhinastha Nyayalaya), Noti. No. 958/VII-Nyaya-2-2-2012-202(15)-76, dated August 13, 2012, published in the U.P. Gazette, Extra. Part-4, Section (Kha), dated 13^th August, 2012, p.2

In Exercise of the power under Section 4, 13 and sub-section (1) of Section 14 of the Bengal, Agra and Assam Civil Courts Act, 1887 (Act No. XII of 1887) and Section 5 of the Provincial Small Causes Courts Act, 1887 (Act No. IX of 1897), read with Section 21 of the General Clauses Act, 1897 (Act No .X 1897), the Governor on the recommendation of the High Court of Judicature at Allahabad, is pleased to create a court of Civil judge (Junior Division) at Tehsil Lalganj Ajhara in District Pratapgarh, with effect from the date of taking over charge by the Presiding Officer of the said court to fix the local limits of Jurisdiction and the place of sitting of such court and to make the following amendment in the Schedule to Government Notification No. A-1104/VII-710-53, dated April 12, 1956, as amended from time to time.

AMENDEMENT

In the Schedule to the aforesaid notification, after the entry at Serial No. 77, the following entries shall column wise be added, namely—

Court

Revenue area forming limits of Jurisdiction

Place or place of sittings

com-

bined officer

Title

77-B

Civil Judge

(JD)

Lalganj Ajhara

The entire revenue area of Tehsil Lalganj Ajhara in District Pratapgarh notified vide Government Notification No.

5-2/(18)/75(332) Revenue-5, dated January 14, 1987

Tehsil Lalganj Ajhara

Civil Judge

(Junior Division)

Lalganj Ajhara

District Pratapgarh

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English translation of Van Anubhag-5, Noti. No. 611/XIV-N-5-2012-07/93, dated July 20, 2012, published in the U.P. Gazette, Extra. Part-4, Section (Kha), dated 20 July, 2012, p.2

In exercise of the powers conferred under sub-section (1) of Section 23 of the Uttar Pradesh Protection of Trees Act, 1976 (U.P. Act No. 1 of 1976) read with Section 21 of the Uttar Pradesh General Clauses Act, 1904 (U.P. Act No. 1 of 1904), and in supersession of the Government Notification NO. 71/XIV-3-377-76, dated January20, 1982, No. 1057/XIV-PBV-78-7-93, dated June 5,1998, No. 2759/XIV-PBV-2000-7-93, dated December 30, 2000 and all other notifications issued on the subject, the Governor in public interest, is pleased to declare that the trees of following species shall not be felled till December 31, 2020 unless any of the trees is dead or dying or it constitutes danger to person or property or its feeling is necessary for executing a development work approved by the Government and permission to fell such trees has been obtained in writing from the competent to fell such trees has been obtained in writing from the competent authority--

Sl. No.	Common Name	Botanical Name
1	Neem	Azadirachta Indica
2	Mahua	Madhuca Latifolia
3	Sal	Shorea robusta
4	Pipal	Ficus religiosa
5	Bargad, Bar	Ficus bengalenisis
6	Aam (Desi, Kalmi, Tukmi)	Mangiferea Indica
7	Bija Sal	Pterocarpus marsupium

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Legal Quiz

(Q.1) ;fn oDQ izkiVhZ jsUVsM gS rks mldk bfoD'ku lwV (Eviction Suit) flfoy dksVZ esa ykbZ (Lie) djsxk fd ughaA ;fn ugha rc dgkW (Lie) djsxk ?

Ans. The Eviction suit of rented wakf property will lie in civil Court. Please See-

1. Suresh Kumar v Managing committee; 2009 Ind. Law All 1770

2. Ramesh Govindram v. Sugra Humayun Mirza wkf; (2010) 8 SCC 726

(Q.2) Whether an accused can be convicted applying S. 149 I.P.C. if it is not mention in the charge?

Ans. “Omission to mention the provision of Section 149 IPC, specially in the charge is only a irregularity and in the absence of prejudice shown to have been caused to accused persons, conviction is not affected.” Ram Kirshan vs. State of Rajasthan; (1997) 7 SCC 518

It has also been clarified in Ratan Lal & Dhiraj Lal’s India Penal Code on page 770, that likewise if charge is framed u/s 302/149 IPC, no prejudice will be caused if accused is convicted u/s 302 IPC simplicitor so mere imperfection in the charge is not enough by itself for purpose of setting aside the conviction.

(Q.3) D;k vkns'k&15] fu;e&5] lh-ih-lh- ds v/khu izfrj{k vfUre cgl ds Lrj ij Hkh lekIr dh tk ldrh gS?

Ans. Order 15 Rule 5 CPC confer a discretion upon the Civil Court that if Order 15 Rule 5(1) has not been complied with then after adopting the procedure prescribed in sub Rule (2) the court may strike off the defence of the defendant. This can be done at any stage of the proceeding. But the court is not bound to strike off defence and it can refuse to do so far valid reasons. See Vimal Chand Jain v. Gopal Agarwal; AIR 1981 SC 1657, Smt. Leela Devi v. Smt Shanti Devi; AIR 1986 All. 90

(Q. 4) The police are investigating a case in which a 15 years old girl committed suicide after being pregnant after a supposed rape or consensual sex. The I.O. has submitted an application for allowing him to get the 5 or 6 suspects for DNA profiling for the purpose of nailing the real Culprit. None of them has so far been arrested. I want to know whether such an application could be allowed or not and if yes, then under which provision or case law?

Ans. Kindly refer to your query about DNA profiling of suspected accused of committing rape on a minor girl. In this connection, your attention is drawn towards Sect. 53, 53-A and 54 Cr.P.C. and you are also advised to go through the following Supreme Court rulings on the point

1. Smt Selvi and others v. State of Karnataka, AIR 2010 SC 1974

2. Bhabani Prasad Jena v. Convenor Secretary, Orissa State Commission for women and another, AIR 2010 SC 2851

(Q. 5) Which Rules (Central Rules 2007 or State Rules 2004) will prevail for holding age determination Enquiry of Juvenile?

Ans. Sec. 68 of the Juvenile Justice (Care & Protection of Children) Act, 2000 provides that only such rules made by State shall apply which conform to Central Rules.

Rule 96 of the Juvenile Justice (Care & Protection of Children) Rules, 2007 has also declared that until the new rules conforming to these rules are framed by the State Government concerned u/s 68 of the Act, these rules, 2007 shall mutatis mutandis apply in that state.

It is pertinent here to mention that U.P. Juvenile Justice (Care & Protection of Children) Rules, 2004 were made in the year 2004.

It is a settled principle that if there is a conflict between the provisions of two similar statutes, the provisions of subsequent enactment will ordinarily prevail over the earlier enactment.

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