Quarterly Digest

In this appeal is filed against the order dated 11.6.2010, passed by the Central Administrative Tribunal. Calcutta Bench in C.P.C. No. 113 of 2005 (O.A.No.203 of 1997) whereby the Tribunal passed an order directing the appellants herein to be present in Court on the next date of hearing for framing the charges of contempt and adjourned the matter to 30.7.2010.

In addition to the same, the appellants have also pointed out that the Tribunal wrongly misunderstood that the claim of respondent Nos. 1 and 2 for further promotion with Sri Talukdar, who was promoted as Sr. Clerk on 14.2.1983 which is unsustainable as he had been promoted to the higher grade of Head Clerk prior to their joining the department and those particulars are available in the office records. It is also pointed out that the seniority of the respondents has been protected and granting promotion to a grade to which they had not yet obtained in their parent department would not only deprive promotional benefit to those who have been serving in the department but would involve the promotion policy being revised. While considering the seniority or promotion, the Court cannot go into and examine the same contrary to the Rules/Policy applicable to the persons concerned framed by the Government.

In the light of the above discussion and of the factual
information furnished, we are unable to sustain the impugned direction of the Tribunal in the order dated 11.6.2010, consequently the same is set aside. Inasmuch as the appellants have complied with the earlier order of the Tribunal dated 9.5.2005, the contempt petition is dismissed. (R. Mohajan & others vs. Shefali Sengupta & ors; 2012(4) AWC 3769)

S. 19 - Power of Tribunal – Regarding fixation of senioritis - Consideration of

The Court has held that Tribunal could have very well proceeded to decide the applications and to recall or modify the order. However, the Tribunal at the time of deciding the aforesaid applications for recall/modification of the order dated 04/8/2010, it was not appropriate to decide the various issues on merits when neither the counter affidavit was filed in the O.A. nor there was relevant materials to decide the various issues including the resjudicata, limitation and other issues. The Tribunal could have very well recalled the order dated 04/8/2010 and ordered for fresh hearing of the application. Insofar, as the order of the Tribunal dated 27/8/2010, by which he had recalled the order dated 04/8/2010 is concerned, there was sufficient ground made by the applicants to recall the order dated 04/8/2010, which according to the respondents was prejudicial to their rights and the order was passed without giving adequate opportunity to them, that ground was itself sufficient for recall of the order dated 04/8/2010, and we do not interfere with the order of the Tribunal dated 27/8/2010, insofar as it has recalled the judgment and order dated 04/8/2010. (Rajeev Mohan vs. Central Administrative Tribunal, Allahabad Bench; Allahabad, 2012 (5) ALJ 257)

Advocates Act

Bar Councils and Associations — Court annexed Bar Associations — Nature and functions of

The Supreme Court Bar Association, as the name suggests, is a society primarily meant to promote the welfare of the advocates generally practicing in the Supreme Court. The name i.e. the Supreme Court Bar Association was formally registered under the Societies Registration Act, 1860 only on 25.8.1999. One of the prime objectives of SCBA is to establish and maintain adequate library for the use of the members and to provide other facilities and convenience of the members. Thus, the formation of SCBA is in the nature of aid to the Advocates Act, 1961 and other relevant statutes including Article 145 of the Constitution.

The very nature of such a Bar Association necessarily means and implies that it is an association representing members regularly practicing in the court and responsible for proper conduct of its members in the court and for ensuring proper assistance to the court. In consideration thereof, the court provides space for office of the association, library and all necessary facilities like chambers at concessional rates for members regularly practicing in the court, parking place and canteen besides several other amenities. In the functions organized by the court-annexed Bar Associations the Judges participate and exchange views and ascertain the problems, if any, to solve them and vice versa. There is thus regular interaction between the members of the Bar Association and the Judges. The regular practitioners are treated as officers of the court and are shown due consideration. (Supreme Court Bar Association vs. B.D. Kaushik; (2012) 2 SCC (Cri) 878)

Election — Right to vote — Nature of — Right to vote or to contest election is neither a fundamental right nor a common law right but purely a statutory right governed by statute/rules/regulations prescribe so

Court has further held that a citizen of India is entitled to cast his vote at an election of MLA or MP only in constituency where his name appears as a voter in voting list and cannot claim right to vote at another place where he may be residing because of his occupation, service. Thus concept of “one person-one-vote” is recognized statutorily. (Supreme Court Bar Association vs. B.D. Kaushik; (2012) 2 SCC (Cri) 878)

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Allahabad High Court Rules, 1952

Chapter VIII, Rule 5 – Special appeal – Maintainability – Special appeal not maintainable against judgment of single Judge in writ petition

A five Judges’ Bench was constituted on 5^th November, 2004. Times to time members of the Bench were changed. During the pendency of this reference, another Division Bench of this Court by an order dated 27^th January, 2009 passed an order in Special Appeal No. 1942 of 2008, Sheet Gupta v. State of U.P. and others, taking different view than that of Ram Dhyan Singh v. State of U.P. and others, 2004(3) AWC 2559 framed the following question:

“Whether a special appeal under the provisions of Rule 5 of Chapter VIII of the Rules of the Court lies in a case where the judgment has been given by a learned single Judge in a writ petition directed against an order passed in an appeal under paragraph 28 of the U.P. Scheduled Commodities Distribution Order, 2004?”

Accordingly, a Full Bench consisting of three Judges was constituted to decide such question. Such Full Bench by its judgment and order dated 11^th December, 2009, in Sheet Gupta v. State of U.P. and others, 2010(1) ESC 273 (All) (FB), answered the question saying that the special appeal is not maintainable under the provisions of Chapter VIII, Rule 5 of the Allahabad High Court Rules, 1952. It was further specifically held therein that Ram Dhyan Singh (supra) does not lay down the correct law. (Ram Dhyan Singh vs. State of U.P. and others; 2012(5) AWC 4517 (FB)

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Arbitration and Conciliation Act

Ss. (6), (8) and 12(3)(a) – Power of Chief Justice or designate to appoint arbitrator other than named arbitrator in arbitration clause - Availability and exercise of

The Chief Justice or his designate has the power to appoint a person other than the named arbitrator upon examination of the relevant facts which would tend to indicate that the named arbitrator is not likely to be impartial. Hence, the petition cannot be rejected merely on the ground that the Chief justice or his designate would have no power to make an appointment of an arbitrator other than the Chairman –cum - Managing Director or his designate. (Bipromasz Bipron Trading Sa Vs. Bharat Electronics Limited (BEL); (2012) 6 SCC 384)

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Arms Act

Ss. 13, 14 – Grant of Licence – Grant of arms license cannot be refused on ground that applicant was short tempered

In the instant case, neither the Licensing Authority nor the appellate authority considered the facts and circumstances of the case and simply rejected the application solely on the ground that the petitioner is a short tempered person and he had failed to bring on record any material indicating that he has any actual threat to his life.

The Court was of the opinion that power of a statutory authority has to be based on certain reasons which such authority must believe to exist, such exercise of power cannot be left to the subjective satisfaction of the authority. The issue was not objectively considered by the statutory authority. Therefore, it is clear that the Licensing Authority has proceeded on an erroneous basis in the exercise of his power under Section 14 of the said Act. (Gaurav Sharma vs. State of U.P. and others; 2012(4) AWC 3894)

S. 13(3) — Fire arms licence — Refused on the ground that applicant was aged about 63 yrs. — Validity of

The discretion for exercise of power vested in the licencing authority by virtue of Section 13 (2-A) is to be exercised in relation to, and in the context with, the provisions of the Act in a reasonable and rational manner. The reasons for refusal of a licence would have to have a nexus to, and be in context with, the provisions of the Act. Merely refusing to issue a licence for a reason not prohibited by the Act, such as being aged 63 years, is unjustified and not in consonance with the provisions of the Act. It is stated in the impugned orders passed by the District Magistrate and the State Government, that there are no reasonable grounds for grant of licence to the applicant. On the contrary, in view of the relevant provisions of the Act, it is evidence that the non-applicant have failed to show any valid grounds for refusal of the licence.

In this case applicant is, and has been, a member of Billimora Rifle Club since the year 1988, and has participated in a number of Rifle Shooting tournaments and won several certificates and awards. One of the grounds on which the petitioner has requested for grant of the licence is for participation in sports activities, namely, Rifle Shooting. As per Section 13(3)(i), the licencing authority can grant a licence in respect of a smooth bore gun having a barrel of not less than twenty inches in length, for protection of crops or for sports. Apart from sports, the applicant has cited the reason of self-protection in his application for grant of the license. As the applicant was 63 years old at the relevant point of time, and is now aged about 67 years, it cannot be said that the reason of self-protection is unjustified as older people would require to be more secure and to have a licenced firearm would provide such security. Both the grounds for which the applicant has requested for the issuance of a firearm licence, cannot be said to be unreasonable or inadequate. Thus, there was no valid, justified or legal ground for rejecting the application of the applicant, and for dismissing the appeal files by him. The refusal of the respondents to grant a firearm licence to the applicant is not supported by any provision of the Act and is, therefore, unreasonable, arbitrary and not in accordance with law. (Sorab Jehangir Bamji vs. State of Gujarat; 2012 (Cr.L.J. (NOC) 393 (Guj)

S. 14 - Arms Rules (1962) - R. 4 Sch. II - Arms License - Granted of

Schedule II under Rule 4 of Arms Rules, 1962 provides that where the licensing authority is the District Magistrate for the purpose of acquisition/possession of firearm, the licence can be provided to the class of persons belonging to the district or any specified area under the heading of area for which licenses can be granted is "throughout the district or his area of jurisdiction or any specified part of his jurisdiction.

In view of the specific provisions as contained in Arms Act read with Arms Rules, 1962, it is clear that the licence of the petitioner as granted by the Deputy Commissioner, Mon, Nagaland, India is not valid for the whole of India.

In view of the above discussion, the order passed by the court below putting the condition that the arms licence shall not be carried by the petitioner within the State of U.P., suffers from no illegality. (Arun Kumar vs. State of UP; 2012 (2) ALJ 380)

S.17 - Cancellation of Licence - Validity

The power to cancel or revoke the licence is contained in section 17 of the Arms Act. One of the grounds for cancellation of licence is that if the licensing authority deems it necessary for security of the public peace or public safety then the licence can be cancelled or revoked. Powers have been given to the District Magistrate to cancel the licence if it is satisfied that the continuance of the licence is likely to disturb the public peace or public safety.

This satisfaction has to be recorded by the District Magistrate on the basis of the relevant material. The relevant material may be obtained by the District Magistrate through various agencies viz. police and other sources. Mere registration of the case against a person may not be necessarily a ground for cancellation provided it is shown that the applicant has a long criminal record as a result of which the privilege given him to use the gun is misused. These are some of the areas where the District Magistrate is required to record his satisfaction before passing the order under section 17 of the Arms Act.

In the present case the District Magistrate has cancelled the licence only on the ground that a criminal case is registered against the petitioner. I do not find that this was correct approach adopted by the District Magistrate. Mere registration of the case itself cannot be a ground for cancellation of licence unless it is shown that the applicant has a criminal record and has misused the gun given to him by threatening the public peace in the area. In the present case no such finding has been recorded nor any material has been disclosed before passing the impugned order. (Shri Mahabir alias Munna Panda vs. State of UP; 2012(5) ALJ 3)

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Civil Procedure Code

S. 24 – Transfer application under – Legality of

Through this transfer application under Section 24, C.P.C., transfer of Civil Appeal No. 24 of 1999 pending before District Judge, Jhansi has been sought to some other district by legal representative of defendant respondent no. 6 in the appeal. In this transfer application following order was passed by the Court on 21.02.2012:

“It appears that both the parties are quite influential and wealthy and holding the District judiciary to ransom. The court completely fails to understand as to why appeal was earlier transferred in 2007. Order sheet of 2007 has been filed along with supplementary affidavit. At that time appeal was being heard before A.D.J. Court No. 4, Jhansi, Sri Raja Ram Saroj. The learned A.D.J. was unable to decide the appeal in spite of his best efforts. Now it appears that pendulum has swung other way. Records of the appeal shall be remitted to this Court by District Judge, Jhansi through special messenger. Registrar General is directed to send a copy of this order to District Judge, Jhansi through fax immediately.”

The Court strongly deprecates the attitude of both the parties. Each and every allegation made in this transfer application against learned District Judge is utterly baseless.

In view of utterly irresponsible attitude of both the parties, it is essential to transfer the case to a district which is farthest from Jhansi even though each and every allegation made against Presiding Officer of the court of District Judge, Jhansi is disbelieved by the Court. It is also essential in the interest of justice to impose heavy cost in the form of damages against both the parties for not only misusing but also abusing the process of court. (Vishrant Agarwal v. District Judge, Jhansi and others; 2012 (2) ARC 776 (All HC)

S. 100 - Substantial question of law – Meaning

Section 100 CPC provides for a second appeal only on the substantial question of law. Generally, a second appeal does not lie on question of facts or of law. In SBI Vs. S.N. Goyal, (2008) 8 SCC 92 this Court explained the terms “substantial question of law” and observed as under: (SCC p. 103, para 13)

“13. …… The word ‘substantial’ prefixed to ‘question of law’ does not refer to the stakes involved in the case, nor intended to refer only to questions of law of general importance, but refers to impact or effect of the question of law on the decision in the lis between the parties. “Substantial questions of law’ means not only substantial questions of law of general importance, but also substantial question of law arising in a case as between the parties , ……… any question of law which affects the final decision in a case is a substantial question of law as between the parties. A question of law which arises incidentally or collaterally, having no bearing on the final outcome, will not be a substantial question of law. ……There cannot, therefore, be a straitjacket definition as to when a substantial question of law arises in case.” (Union of India Vs. Ibrahim Uddin & another; (2012) 8 SCC 148)

S. 100 – Interference in second appeal

In exceptional circumstantial, High Court can interfere in second appeal even on question of fact when factual findings are perverse.

The first appellate court allowed the application filed by the plaintiff under Order 41 Rule 27 CPC vide order dated 28.4.1999 which reads as under:

“The will in question is necessary for the disposal of the appeal because the appellant/applicant obtains right in the disputed property from this will. The respondent-defendants have neither opposed it that as to why it was not produced in the subordinate court, there is not any relevancy of it. The applicant has given reason of not producing the will in the subordinate court that this will was lost. In my opinion, the will appears to be necessary for the disposal of the appeal for the property which was obtained to the appellant earlier by this will. Proper reason has been given for not producing this will in the subordinate court.”

(Union of India Vs. Ibrahim Uddin and another; (2012) 8 SCC 148)

S. 149 – Power to make up deficiency of court fee – Legality of – Jurisdiction U/s. 149 being discretionary in nature

When, the Court on more than one occasion held that the jurisdiction under Section 149 CPC is discretionary in nature. (See: P.K. Palanisamy v. N. Arumugham & Anr.; (2009) 9 SCC 173 and (2012) 13 SCC 539: 2009 (2) ARC 751).

Thus, it is well settled that the judicial discretion is required to be exercised in accordance with the settled principles of law. It must not be exercised in a manner to confer an unfair advantage on one of the parties to the litigation. In a case where the plaint is filed within the period of limitation prescribed by law but with deficit court fee and the plaintiff seeks to make good the deficit of the court fee beyond the period of limitation, the Court, though has discretion under Section 149 CPC, must scrutinize the explanation offered for the delayed payment of the deficit court fee carefully because exercise of such discretion would certainly have some bearing on the rights and obligations of the defendants or persons claiming through the defendants. (The case on hand is a classic example of such a situation.). It necessarily follows from the above that Section 149 CPC does not confer an absolute right in favour of a plaintiff to pay the court fee as and when it pleases the plaintiff. It only enables a plaintiff to seek the indulgence of the Court to permit the payment of court fee at a point of time later than the presentation of the plaint. The exercise of the discretion by the Court is conditional upon the satisfaction of the Court that the plaintiff offered a legally acceptable explanation for not paying the court fee within the period of limitation. (A. Nawab John & Ors. V. V.N. Subramaniyam; 2012(2) ARC 652 (SC)

S.151 – Inherent powers of the court - Power to correct is always inherent in every court, even purely executive authority cannot refuse to correct a calculation error - Whenever pointed out

In my opinion appeal of the State was wrongly allowed on highly technical grounds. The application prayer for correction of calculation error which had been allowed by the Prescribed Authority through the subsequent order (challenged in the appeals giving rise to the instant writ petition) was held to be barred by time. Even if the objection was raised beyond time still an error of calculation could be corrected by the Prescribed Authority at any time. Such power is always inherent in every Court, tribunal, judicial or quashi judicial authority. Even purely executive authority also cannot refuse to correct a calculation error whenever pointed out. (Shyam Behari Lal v. State of U.P.; 2012 (116) RD 34)

S. 151 - Inherent powers of the court are to do justice in addition to and complementary to powers conferred under C.P.C. expressly or by implication

In a democratic and civilized society while dispensing Justice, Court possesses two folds of duty. For the purpose to secure statutory and constitutional right delivery of judgment or pass an order or direction to meet the ends of justice and secondly to ensure that order passed by it while dispensing justice is implemented in its letter and spirit by the parties or authorities concerned. These are basic tenets of rule of law in a civilized society so far as Courts are concerned. Failure on the part of Court to ensure the ends of justice may result into destruction of rule of law creating chaos in the society and breaking up social order. Accordingly, judicial officers or Judges should always be alert to ensure that their orders are complied with by persons or authorities concerned.

In view of above, the Court has got ample power to enforce its order. Local authorities or officers concerned may be directed to ensure the compliance of injunction granted by the Court. The Court has got ample power to direct the police to ensure that no construction should be raised and parties may not remove any structure standing over the disputed land in terms of injunction granted by the Court. It should be paramount consideration of Court to ensure that rule of law should be maintained and orders of the Court must be complied within its letter and spirit. Power to punish under the contempt procedure has to fulfil the requirement and in case Court remain moot spectator and permit the parties or authorities to violate its order, damage may cause to parties and may suffer from irreparable loss and injury. Accordingly Trial Court should have issued appropriate direction or order to the local authorities and administration to ensure compliance of injunction granted by it in pursuance to inherent power conferred by section 151 of the CPC and it shall be obligatory for the State authorities to comply with such order. (Smt. Shanti Devi v. Pankaj Kumar & others; 2012 (115) RD 585)

O.1, R. 9 and 10(2) – Striking out or adding parties – Legality of – Being discretion of Court under facts and circumstances

In the judgment of the Apex Court in Mumbai International Airport Private Limited, the Apex Court in the said case has laid down that the discretion to either allow or reject the application of the person claiming to be the proper party depends upon the facts and circumstances of the case and no person has a right to insist that he should be impleaded as a party merely because he is a proper party. Following propositions were laid down by the Court in para Nos. 22 to 25 of the aforesaid case.

“22. Let us consider the scope and ambit of Order 1, Rule 10(2) CPC regarding striking out or adding parties. The said sub-rule is not about the right of a non-party to be impleaded as a party, but about the judicial discretion of the Court to strike out or add parties at any stage of a proceeding. The discretion under the sub-rule can be exercised either sue moto or on the application of the plaintiff or the defendant, or on an application of a person who is not a party to the suit. The Court can strike out any party who is improperly joined. The Court can add anyone as a plaintiff or as a defendant if it finds that he is a necessary party or proper party. Such deletion or addition can be without any conditions or subject to such terms as the Court deems fit to impose. In exercising its judicial discretion under Order 1 Rule 10(2) of the Code, the Court will of course act according to reason and fair play and not according to whims and caprice.

23. This Court in Ramji Dayawala & Sons (P) Ltd. v. Invest Import reiterated in SCC P. 96 para 20 the classic definition of ‘discretion’ by Lord Mansfield in R. V. Wilkes (ER P. 334) that ‘discretion’ when applied to courts of justice, means sound discretion guided by law. It must be governed by rule, not by humour, it must not be arbitrary, vague, and fanciful, but ‘legal and regular’.

24. We may now give some illustrations regarding exercise of discretion under the said sub-rule.

24.1 If a plaintiff makes an application for impleading a person as a defendant on the ground that he is a necessary party, the Court may implead him having regard to the provisions of Rules 9 and 10(2) of Order1. If the claim against such a person is barred by limitation, it may refuse to add him as a party and even dismiss the suit for non-joinder of a necessary party.

24.2 If the owner of a tenanted property enters into an agreement for sale of such property without physical possession, in a suit for specific performance by the purchaser, the tenant would not be a necessary party. But if the suit for specific performance is filed with an additional prayer for delivery of physical possession from the tenant in possession, then the tenant will be a necessary party in so far as the prayer for actual possession.

24.3 If a person makes an application for being impleaded contending that he is a necessary party, and if the Court finds that he is a necessary party, it can implead him. If the plaintiff opposes such impleadment, then instead of impleading such a party, who is found to be a necessary party, the Court may proceed to dismiss the suit by holding that the applicant was a necessary party and in his absence the plaintiff was not entitled to any relief in the suit.

24.4 If an application is made by a plaintiff for impleading someone as a proper party, subject to limitation, bona fides etc., the Court will normally implead him, if he is found to be a proper party. On the other hand, if a non-party makes an application seeking impleadment as a proper party and Court finds him to be a proper party, the Court may direct his addition as a defendant; but if the Court finds that his addition will alter the nature of the suit or introduce a new cause of action, it may dismiss the application even if he is found to be a proper party, if it does not want to widen the scope of the specific performance suit; or the Court may direct such applicant to be impleaded as a proper party, either unconditionally or subject to terms. For example, if ‘D’ claiming to be a co-owner of a suit property, enters into an agreement for sale of his share in favour of ‘P’ representing that he is the co-owner with half share, and ‘P’ files a suit for specific performance of the said agreement of sale in respect of the undivided half share, the Court may permit the other co-owner who contends that ‘D’ has only one-fourth share, to be impleaded as an additional defendant as a proper party, and may examine the issue whether the plaintiff is entitled to specific performance of the agreement in respect of half a share or only one-fourth share; alternatively the Court may refuse to implead the other co-owner and leave open the question in regard to the extent of share of the vendor-defendant to be decided in an independent proceeding by the other co-owner, or the plaintiff; alternatively the Court may implead him but subject to the term that the dispute, if any, between the impleaded co-owner and the original defendant in regard to the extent of the share will not be the subject matter of the suit for specific performance, and that it will decide in the suit, only the issues relating to specific performance, that is whether the defendant executed the agreement/contract and whether such contract should be specifically enforced.

25. In other words, the Court has the discretion to either to allow or reject an application of a person claiming to be a proper party, depending upon the facts and circumstances and no person has a right to insist that he should be impleaded as a party, merely because he is a proper party.”

On relying above proposition laid down by Hon’ble Supreme Court this court has observed that striking out or adding the parties is discretion of court which depends on fact and circumstances of the case.

(Manju Gupta (Smt.) v. District Magistrate, Allahabad and Others; 2012 (3) ARC 288)

O. 1. R. 10(2) – Suit for specific performance - Addition of subsequent purchaser as defendant - Permissibility - Subsequent transferee is necessary party

In view of the provisions as contained in section 19(b) of the Specific Relief Act the subsequent transferee is a necessary party as this question that whether the subsequent transferee purchased the property for value and paid the money in good faith and without notice of the original contract is to be decided in his presence.

Here the other aspect of the matter is that the plaintiff is praying for addition of purchaser as party defendant on the ground that the purchasers are necessary party. The learned counsel based his claim on the basis of the aforesaid decisions of the Apex Court. It is admitted that the petitioner has sold the properties to the purchaser. It is for the purchaser to have objected. In view of the Apex Court a purchaser is a necessary party, therefore, the party cannot be added and deleted at the instance of a party defendant. The plaintiff is dominus litis. In such circumstances when it has already been settled by the Apex Court that the purchaser in necessary party in suit for specific performance of contract the learned court below could not have rejected the application of the plaintiff. Therefore, the learned court below has not exercised a jurisdiction vested in it by law and thereby occasioned failure of justice. The impugned order suffers from jurisdictional error and therefore it is liable to be set aside. (Kalawati Devi & Anr. V. Yoganti Devi & Ors.; AIR 2012 Patna 125)

O. 1 R. 10 – Consideration of

It is settled legal position that a party against whom no relief is claimed in the application is not a necessary party at all. (Church of Christ Charitable Trust and Educational Charitable Society vs. Ponniamman Educational Trust; 2012(4) AWC 3883(SC)

O. 1, R. 10 (2) – Question of title not to be decided in summary proceedings

“In the present case, undisputed position is that JSCC Suit No. 43 of 2000 had been filed against defendant-respondent No. l for recovery of arrears of rent and ejectment. In the said suit, defendant- respondent No. l filed written statement, denying landlord-tenant relationship. The case in hand has to be decided on the basis of the facts disclosed in the plaint. Merely because Shakil Ahmad claims that he is owner of the property and he has filed suit for declaration of his rights, then ipso facto, it is not necessary to implead him as party in JSCC suit, which has to be decided on its own merit. Revisional Court has clearly erred in law in directing impleadment of Shakil Ahmad in JSCC suit. JSCC suit has to be decided on its own merit as to whether there existed any landlord-tenant relationship inter se parties. In case petitioner fails to substantiate the said fact that he is not landlord, his suit would fail. Revision has been wrongly allowed." (Smt. Krishna v. Ram Kumar and others; 2012 (115) RD 734)

O. 6. R. 17

The Court said finally, the original plaint proceeds that the exercise of power by the Central Government by passing the impugned Notifications dated 02.11.2004 and 4.11.2004 under Sections 58(3) and 58(3) and 58(4) of the MPR Act was arbitrary, unjust and unfair and had resulted in serious anomalies in the apportionment of assets and liabilities. In our view, after praying for such relief, if the amendment as sought for by the plaintiff is allowed and the plaintiff is permitted to challenge the vires of the said provisions, then the very basis on which the plaintiff is claiming its right to apportionment of assets, rights and liabilities of the undivided Board will cease to be in existence and the entire suit of the plaintiff will be rendered infructuous. Moreover, it is settled principle of law that leave to amend will be refused if it introduces a totally different, new and inconsistent cases or challenges the fundamental character of the suit. (State of Madhya Pradesh v. Union of India; AIR 2012 SC 2518)

O. VI, R. 17 – Amendment of W.S. – Allowed – Legality – By amendment the nature of suit will not be challenged

By means of the present revision, the applicant who is a tenant in a suit filed by the landlord for eviction and arrears of rent being SCC suit No. 36 of 2011 has challenged the order allowing challenged the order allowing amendment. In the said suit after filing of the written statement, the landlord plaintiffs have filed an amendment application. The said amendment application has been allowed against which the present revision has been filed alleging that instead of filing a replica in view of the amendment allowed in the written statement, amendment has been sought in the plaint itself which cannot be permitted. The suit is for eviction and arrears of rent. By the aforesaid amendment, it cannot be said that the nature of the suit will change. It will continue to be a suit for eviction and arrears of rent. However, certain other pleadings have been brought on record. The petitioner will have opportunity to rebut the same by filing the additional written statement. From the order impugned it appears that the court has permitted the same to the revisionist. (Om Prakash Agrawal v. Shri Jai Kumar Mishra and others; 2012 (2) ARC 692 (All HC)

O. 7, R. 7 and 8 and O. 6, R. 2 and 4 – Pleadings – Relief not founded on pleadings, cannot be granted – All material facts shall be pleaded and party cannot be allowed to go beyond pleading

Relief not founded on the pleadings cannot be granted. A decision of a case cannot be based on grounds outside the pleadings of he parties. No evidence is permissible to be taken on record in the absence of the pleadings in that respect. The Court cannot travel beyond the pleadings as no party can lead the evidence on an issue/point not raised in the pleadings and in case, such evidence has been adduced or a finding of fact has been recorded by the court, it is just to be ignored. Though it may be a difference case where in spite of specific pleadings, a particular issue is not framed and parties having full knowledge of the issue in controversy lead the evidence and the court records a finding on it. (Union of India Vs. Ibrahim Uddin & another; (2012) 8 SCC 148)

O. 7, R. 11

The law is settled that while considering an application under Order VII Rule 11 Code of Civil Procedure, the Court has to examine the averments in the plaint and the pleas taken by the Defendants in its written statements would be irrelevant.

High Court is fully justified in confirming the decision of the appellate Court remitting the matter to the trial Court. (Bhau Ram Vs. Janak Singh; 2012 (5) AWC 5067)

O. VIII, R. 6-A – Amendment in WS for counter-claim on property in dispute – Permissibility of

In this case it was contended that Revisional Court has no considered that counter claim set up by respondent was highly barred by time and since under Order VIII, Rule 6-A (4) CPC, counter claims is to be treated as a plaint and governed by the rules applicable to plaints, it was incumbent upon Revisional Court to consider the same to find out counter claim set up by the defendant is within the period of limitation or not. Even otherwise, it is beyond the scope of Order VIII Rule 6-A as it was filed after evidence was already recorded and not before the defendant has delivered his defence as is the condition prescribed in sub rule (1) of Rule 6-A Order VIII, CPC.

The kind of amendment sought by defendants/respondents refers to the possession and construction on the property in question by the petitioners without giving the dates on which it is allowed to have been done though from the plaint it appears that possession of property in question and construction was claimed to have been made by petitioners since 1982 and therefore ex facie amendment sought by way of counter claim was barred by limitation. Moreover, the said amendment has been sought after evidence was over and thus also it is beyond the scope of Order VIII, Rule 6-A CPC. It was not in a manner of amendment under Order VIII but is an amendment sought for setting up a counter claim under Order VIII Rule 6-A and the Court below has erred in law by ignoring to consider the relevant conditions in which such counter claim could have been set up by the defendant. The impugned revisional order therefore cannot sustain. (Rajjab Ali & another v. Zila Panchayat, Sultanpur and others; 2012 (3) ARC 238 (All HC, LB)

O. 8, R. 10 – Judgment in case no written statement is filed – Passed blindly by relying on facts stated in plaint

The effect of non-filing of the written statement and proceeding to try the suit is clearly to expedite the disposal of the suit and is not penal in nature wherein the defendant has to be penalised for non-filing of the written statement by trying the suit in a mechanical manner by passing a decree. We wish to reiterate that in a case where written statement has not been filed, the Court should be a little more cautious in proceeding under Order 8, Rule 10, CPC and before passing a judgement, it must ensure that even if the facts set out in the plaint are treated to have been admitted, a judgment and decree could not possibly be passed without requiring him to prove the fact pleaded in the plaint. It is only when the Court for recorded reasons is fully satisfied that there is no fact which needs to be proved at the instance of the plaintiff in view of the deemed admission by the defendant, the Court can conveniently pass a judgement and decree against the defendant who has not filed the written statement. But, if the plaint itself indicates that there are disputed questions of fact involved in the case arising from the plaint itself giving rise to two versions, it would not be safe for the Court to record an exparte judgement without directing the plaintiff to prove the facts so as to settle the factual controversy. In that event, the ex parte judgment although may appear to have decided the suit expeditiously, it ultimately, gives rise to several layers of appeal, after appeal which ultimately compounds the delay in finally disposing of the suit giving rise to multiplicity of proceeding which hardly promotes, the cause of speedy trial. However if' the Court is clearly of the view that the plaintiff's case even without any evidence is prima facie unimpeachable and the defendant's approach is clearly a dilatory tactic to delay the passing of a decree, it would be justified in appropriate cases to pass even an uncontested decree. What would be the nature of such a case ultimately will have to be left to the wisdom and just exercise of discretion by the trial court who is seized of the trial of the suit. (C.N. Ramappa Gowda v. C.C. Chandregowda (Dead) By LRs & Anr.; AIR 2012 SC 2528)

O. 9, R. 13 – Availability of benefit under

Petitioner has challenged the order of the Court below by which his delay condonation application filed along with application under order 9 Rule 13 CPC has been rejected on the ground that proper explanation for the delay has not been explained. Against the aforesaid order revision was filed being Revision No. 30 of 2010, which has also been rejected vide order dated 05.08.2010, hence this writ petition.

It is not disputed that the aforesaid decree is an ex-parte decree against which petitioner has filed application for recall and also condonation of delay in filing the aforesaid recall application on the ground that he had no knowledge of the proceeding. He claims to have obtained knowledge only on 17.5.2008. However, it is not disputed that for the execution of the aforesaid decree before Execution Court, the petitioner himself had filed an application as far back as on 05.03.2008 for adjournment of the Execution Case, therefore, obviously petitioner had full knowledge of proceeding much prior to 17.05.2008 and therefore, claim of the petitioner cannot be accepted that he came to know of the ex-parte decree only on 17.5.2008.

In view of the aforesaid, the Court not inclined to interfere with the order impugned. The writ petition is accordingly dismissed. (Mahrunnisha (Smt.) v. District Judge, Rae Bareli; 2012 (2) ARC 686 (All HC)

O. 15, R. 1 & 3 and O. 10, R. 2 – For proper framing of issues necessary – Court must critically examine pleading before framing of issues

Framing of issues is a very important stage of a civil trial. It is imperative for a Judge to critically examine the pleadings of the parties before framing of issues. Rule 2 of Order 10 CPC enables the court, in its search for the truth, to go to the core of the matter and narrow down, or even eliminate the controversy. It is a useful procedural device and must be regularly pressed into service. (A. Shanmugam Vs. Ariya Kshatriya Rajakula Vamsathu Madalaya Nandhavana Paripalanai Sangam represented by its President & others; (2012) 6 SCC 430)

O. 15, R.5 – Striking off defence – Application for – Objection against – Trial Court struck off defence – Legality of

The respondent/plaintiff filed a suit for arrears of rent and ejectment against the petitioner. During the pendency of the SCC Suit, plaintiff moved an application under Order 15 Rule 5 CPC for striking off the defence of the petitioner.

Respondent filed its objections stating that the application for striking off the defence has been filed by plaintiff on wrong facts as she was depositing the rent regularly. She further stated that she deposited the rent in lump sum for some months, if in the opinion of the Court; it is found that there is any delay in depositing the rent, it may be condoned.

The Trial Court after considering the material available on recorded by order dated 17.08.2009 struck off the defence of the petitioner. Being aggrieved and dissatisfied with the said order dated 17.08.2011, the petitioner filed a SCC revision, which was registered as Rent Revision No. 8 of 2010. The said Revision was dismissed by the Revisional Court on 04.05.2012. Hence, the present writ petition.

Order 15 Rule 6 (UP) CPC, inter alia provides that the tenant throughout the continuation of the suit regularly deposit the monthly amount due within a week from the day of its accrual and in the event of any default in making the deposit of the entire amount admitted by him to be due or the monthly amount due, the Court may subject to the provisions of Sub-rule (2) strike off his defence.

Therefore, in view of the above, the petitioner has not complied with the provisions of Order 15 Rule 5 CPC (UP).Apart from it, the petitioner neither filed any representation as provided under Sub-rule (2) of Order 15 Rule 5 CPC nor given any explanation whatsoever for not complying with t he aforementioned provision, even no reasons have been assigned by the petitioner in its objections much less strong and compelling reasons for her failure to comply with the provisions of Order 15 Rule 5 CPC. Thus, the court below was fully justified in striking off the defence of the petitioner. (Rajni Mishra (Dr. Smt.) v. Kanta Prasad Agrawal; 2012 (2) ARC 687)

O. XXII, R. 10 – Recall application against order passed under O. XXII, R. 10 C.P.C. – Rejection of – Legality – Petitioner only attempt is to delay the execution proceeding even after more than three decade, hence rightly dismissed

Writ petition is directed against the order dated 11.05.2012 passed by Civil Judge (Senior Division), Agra in Execution Case No. 16 of 1993 rejecting petitioners’ application for recall of order dated 23.09.2011 passed on application No. 54C of respondent no. 1/3 under Order 22 Rule 10 of Code of Civil Procedure.

The application was filed seeking recall of order dated 23.09.2011 on the ground that copy of said application was never served upon petitioners-applicants and order has been passed without giving any opportunity of hearing and is an ex-parte order.

The court below however has recorded a finding that copy of aforesaid application no. 54C was served upon judgment-debtors on 03.09.2004 and thereafter due opportunity of hearing was afforded to all parties and after almost seven years since then the order was passed on 23.09.2011. This finding has not been challenged in the entire writ petition to be perverse or contrary to record. There is no averment in the entire writ petition that copy of application was not served upon petitioners on 03.09.2011.

From the record it appears that one Fakhruddin filed Original Suit No. 430 of 1979 against the tenant Smt. Kallo seeking her eviction and the suit was decreed on 02.02.1981. It is not disputed that the judgement has attained finality having not been challenged before any higher court. Thereafter Sri Fakhruddin himself filed Original Suit No. 405 of 1992 seeking partition of property No. 23/459 Wazirpura Agra which included the part of premises subject matter of dispute in Original Suit No. 430 of 1979. In the meantime he died and his heirs are substituted. The partition suit was decided vide a compromise decree passed on 27.01.2003, as a result whereof the premises which was subject matter of Original Suit No. 430 of 1979 came in the share of applicants of Application No. 54C. It is pursuant thereto, application seeking their impleadment as judgment executor in Execution Case No. 16 of 1993 was filed. The said application filed in August, 2004/September, 2004 but could be decided by execution court only on 23.09.2011. i.e., after seven years after hearing both the parties. The only ground raised for seeking recall of said order is that the copy of application was not served upon petitioners which have been found incorrect by court below. The Court has observed that the said application was received by judgment debtor on 03.09.2004. As already said, this finding has not been shown perverse, thus the impugned orders warrant no interference. It is clear that petitioner’s only attempt is to delay the execution proceedings even after more than three decades. (Kallo (Since Deceased) (Smt.) & Others v. Fakhruddin (Since Deceased) & Others; 2012(2) ARC 594 (All HC)

Ss. 38 and 39 – Grant or Refusal of injunction - Principles laid down in Maria Margarida Sequeria; (2012) 5 SCC 370, reiterated

In Maria Margarida Sequeria Fernandes v. Erasmo Jack de Sequeria, (2012) 5 SCC 370, (of which one of us, Dr. Bhandari, J. was the author of the judgment), this court had laid stress on purity of pleadings in civil cases. We deem it appropriate to set out paras 61 to 77 of that judgment dealing with broad guidelines provided by the Court which are equally relevant in this case: (SCC pp. 389-91)

“61. In civil cases, pleadings are extremely important for ascertaining the title and possession of the property in question.

62. Possession is an incidence of ownership and can be transferred by the owner of an immovable property to another such as in a mortgage or lease. A licensee holds possession behalf of the owner.

63. Possession is important when there are no title documents and other relevant records before the court, but, once the documents and records of title come before the court, it is the title which has to be looked at fist and due weightage be given to it. Possession cannot be considered in vacuum.

64. There is a presumption that possession of a person, other than the owner, if at all it is to be called possession, is permissive on behalf of the title-holder. Further, possession of the past is one thing, and the right to remain or continue in future is another thing. It is the latter which is usually more in controversy than the former, and it is the latter which has seen much abuse and misuse before the courts.

65. A suit can be filed by the title-holder for recovery of possession or it can be one for ejectment of an ex-lessee or for mandatory injunction requiring a person to remove himself or it can be a suit under Section 6 of the Specific Relief Act to recover possession.

66. A title suit for possession has two parts - first, adjudication of title, and second, adjudication of possession. If the title dispute is removed and the title is established in one or the other, then, in effect, it becomes a suit for ejectment where the defendant must plead and prove why he must not be ejected.

67. In an action for recovery of possession immovable property, or for protecting possession thereof, upon the legal title to the property being established, the possession or occupation the property by a person other than the holder of the legal title will be presumed to have been under and in subordination to the legal title, and it will be for th3e person resisting a claim for recovery of possession or claiming a right to continue in possession, to establish that he has such a right. To put it differently, wherever pleadings and documents establish title to a particular property and possession is in question, it will be for the person ion possession to give sufficiently detailed pleadings, particulars and documents to support his claim in order to continue in possession.

68. In order to do justice, it is necessary to direct the parties to give all details of pleadings with particulars. Once the title is prima facie established, it is for the person who is resisting the title-holder’s claim to possession to plead with sufficient particularity on the basis of his claim to remain in possession and place before the court all such documents as in the ordinary course of human affairs are expected to be there. Only if the pleadings are sufficient, would an issue be struck and the matter sent to trial, where the onus will be on him to prove the averred facts and documents.

69. The person averring a right to continue in possession shall, as far as possible, give a detailed particularized specific pleading along with documents to support his claim and details of subsequent conduct which establish his possession.

70. It would be imperative that one who claims possession must give all such details as enumerated hereunder. They are only illustrative and not exhaustive:

(a) who is or are the owner of owners of the property;

(b) title of the property;

(d) identity of the claimant or claimants to possession;

(e) the date of entry into possession;

(f) how he came into possession – whether he purchased the property or inherited or got the same in gift or by any other method;

(g) in case he purchased the property, what is the consideration; if he has taken it on rent, how much is the rent, licence fee or lease amount;

(h) if taken on rent, licence fee or lease – then insist on rent deed, licence deed or lease deed;

(i) who are the persons in possession/occupation or otherwise living with him, in what capacity; as family members, friends or servants, etc.;

(j) subsequent conduct i.e. any event which might have extinguished his entitlement to possession or caused shift therein; and

(k) basis of his claim that not to deliver possession but continue in possession.

71. Apart from these pleadings, the court must insist on documentary proof in support of the pleadings. All those documents would be relevant which come into existence after the transfer of title or possession or the encumbrance as is claimed. While dealing with the civil suits, at the threshold, the court must carefully and critically examine the pleadings and documents.

72. The court will examine the pleadings for specificity as also the supporting material for sufficiency and then pass appropriate orders.

73. Discovery and production of documents and answers to interrogatories, together with an approach of considering what in the ordinary course of human affairs is more likely to have been the probability, will prevent many a false claims or defences from sailing beyond the stage for issues.

74. If the pleadings do not give sufficient details, they will not raise an issue, and the court can reject the claim or pass a decree on admission. On vague pleadings, no issue arises. Only when he so establishes, does the question of framing an issue arise. Framing of issues is an extremely important stage in a civil trial. Judges are expected to carefully examine the pleadings and documents before framing of issues in a given case.

75. In pleadings, whenever a person claims right to continue in possession of another property, it becomes necessary for him to plead with specificity about who was the owner, on what date did he enter into possession, in what capacity and in what manner did he conduct his relationship with the owner over the years till the date of suit. He must also give details on what basis he is claiming a right to continue in possession. Until the pleadings raise a sufficient case, they will not constitute sufficient claim of defence.

76. * * *

77. The court must ensure that pleadings of a case must contain sufficient particulars. Insistence on details reduces the ability to put forward a non-existent or false claim or defence. In dealing with a civil case, pleadings, title documents and relevant records play a vital role and that would ordinarily decide the fate of the case.”

23. We reiterate the immense importance and relevance of purity of pleadings. The pleadings need to be critically examined by the judicial officers or Judges both before issuing the ad interim injunction and/or framing of issues. (A. Shanmugam Vs. Ariya Kshatriya Rajakula Vamsathu Madalaya Nandhavana Paripalanai Sangam represented by its President and others; (2012) 6 SCC 430)

O. 39, R. 2 –Temporary injunction – Irreparable loss - Suit for specific performance of contract of agency – Relief of damages having been claimed as alternative to relief of specific performance – Cannot be said that plaintiff would suffer irreparable loss in case injunction is reused – Grant of injunction claimed, improper even if plaintiff had prima facie case

On a reading of clause B-2 of the agreement, we find that Liberty Agencies had given a warranty that the suit schedule property was owned by it and that it will retain the possession of the suit schedule property until the expiry of the agreement. Clause D of the agreement clearly stipulated that the duration of, the agreement shall be for a period of twelve years from the. Date of the agreement/unless terminated in accordance with the provisions of the agreement. Clause E-2 further provides that respondent No.1 and not Liberty Agencies could terminate the agreement by giving a notice of not less than three months after the end of six years from the date of the agreement and respondent No.1 had not terminated the agreement under this clause. Before the expiry of six years from the date of the agreement, Liberty Agencies sent the letter dated 26.02.2010 to the respondent No.1 committing a breach of clause B-2 of the agreement which provided that Liberty Agencies will retain possession of the suit schedule property until the expiry of the agreement. This was the breach of the agreement which was sought to be prevented by the trial court by an order of temporary injunction. The trial court and the High Court were thus right in coming to the conclusion that the respondent No.1 had a prima facie case.

Despite this claim towards damages made by the respondent No.1 in the plaint, the trial court-has held that if the temporary injunction as sought for is not granted, Liberty Agencies may lease or sub-lease the suit schedule property or create third party interest over the same and in such an event, there will be multiplicity of proceedings and thereby the respondent No.1 will be put to hardship and mental agony, which cannot be compensated in terms of money. Respondent No.1 is a limited company carrying on the business of readymade garments and we fail to appreciate what mental agony and hardship it will suffer except financial losses. The High Court has similarly held in the impugned judgment that if the premises is let out, the respondent No.1 will be put to hardship and the relief claimed would be frustrated and, therefore, it is proper to grant injunction and the trial court has rightly granted injunction restraining the partners of Liberty Agencies from alienating, leasing, sub-leasing or encumbering the property till the disposal of the suit. The High Court lost sight of the fact that if the temporary injunction restraining Liberty Agencies and its partners from allowing, leasing, sub-leasing or encumbering the suit schedule property was not granted, and the respondent No.1 ultimately succeeded in the suit, it would be entitled to damages claimed and proved before the court. In other words, the respondent No.1 will not suffer irreparable injury. To quote the words of Alderson, B. in The Attorney-General vs. Hallett [153 ER 1316: (1857) 16 M. & W.569]:

“I take the meaning of irreparable injury to be that which, if not prevented by injunction, cannot be afterwards compensated by any decree which the Court can pronounce in the result of the cause."

For the aforesaid reasons, we set aside the order of temporary injunction passed by the trial court as well as the impugned judgment and the order dated 16.07.2010 of the High. Court. The appeals are allowed with no order as to costs. (M/s. Bet Sellers Retail (India) Pvt. Ltd. v. M/s. Aditya Birla Novo Ltd. & Ors. With A.C. Thirumalaraj v. M/s. Aditya Birla Novo Ltd. & Ors.; AIR 2012 SC 2448)

Order XXXIX, R. 2-A and S. 151 – Remedy to non compliance of courts order by the district authorities

The Trial Court has ample power to enforce its order by issuing appropriate direction to the district authorities. Needless to say that in case the district authorities do not implement the order passed by the trial Court the latter has ample power to refer the matter to this Court. We reiterate the proposition of law discussed in the case of Mohd. Hamja (supra) and permit the petitioner to approach the trial Court by moving appropriate application. The Trial Court shall ensure that the order passed by it is complied with in its letter and spirit by the district authorities.

It shall be obligatory on the part of the district authorities to implement the order passed by the Trial Court. Attention of this Court has been invited to the order dated 14.7.2011 (Annexure-6). In case the private respondents have got any grievance against the order passed by the trial Court, then option is open to them to approach the higher forum like revisional or appellate jurisdiction but there shall not be any connivance between the private respondents and the district authorities in complying the order passed by the Trial Court. Non-compliance of the Court's order by the district authorities is a symptom which shows the breakage of the constitutional machinery. We hope and trust that the district authorities including the Superintendent of Police, Lucknow shall enforce the order passed by the Trial Court in its letter and spirit. (Hari Om Rastogi and another v. State of IT.P. through its Secretary Home, Lucknow and others; 2012 (115) RD 728)

Order XXXIX, Rule 4 – Two field remedy provided to the incumbent against when such injunction may be discharged

On the parameters of judicial pronouncements and the statutory provisions, the situation which emerges in the present case, that two fold remedy has been provided for to an incumbent against whom injunction order has been passed and who is dissatisfied with the said order of injunction. Rule 4 of Order XXXIX provides that an order for an injunction may be discharged, or varied, or set aside by the Court, on application made thereto by any party dissatisfied with such order. Order XLIII, Rule l(r) provides that an appeal shall lie from an order under Rules 1, 2 and Rule 4 of Order XXXIX. The Legislature deliberately and consciously has provided the forum of appeal against the order passed under Rules 1, 2 and 4 of Order XXXIX, the stages being different. Under Order XJc. XIX Rule 1 of the Code whenever an ex parte order of injunction is passed, against the same also appeal is maintainable under Order XLIII Rule 1 (r) and at the point of time said appeal is decided, the question to be agitated is as to whether in the facts of the case Trial Court was justified in issuing injunction order and no new material can be taken into consideration until application under Order XLI, Rule 27 of the Code is taken on record and allowed. Said appeal in question has to be confined on the material which was available before the Court at the point of time when an injunction order had been granted ex parte. As far as proceeding under Order JLXXLX, Rule 4 of the Code is concerned, a person who is dissatisfied with the order of injunction has a right to apply for revocation. variation or for rescinding the order of injunction and therein all necessary material particulars can be placed before the Court in respect of his claim preferred under Order XXXIX Rule 4 of the Code, and the Court has to consider the claim of a party on the premises as to whether it would be just and in the interest of justice to continue with injunction order or not in the facts of the case and even against the said order passed either way, remedy of appeal has been provided for against the order passed under Order XXXIX, Rule 4 of the Code. Appeal is maintainable both against grant of ex parte injunction order as well as against the order passed after hearing both the parties. Thus, there is procedural difference in the two and the stage of the appeal is also different, for the simple reason that while considering the appeal under Order XLIII Rule l(r) against the order passed under Order JLXXLX, Rule 1 of the Code, only material on which injunction order has been passed is taken into consideration, whereas in the appeal preferred under Order XLIII, Rule 1 (r) against the order passed under Rule 4 of Order XXXIX entire material has to be taken into consideration, including the documents which have been submitted by the defendant at the said stage of the proceeding. There is no statutory embargo, whatsoever imposed upon the defendant to invoke the two proceedings simultaneously. Apex Court in the case of Transcore v. Union of India, AIR 2007 SC 212, has considered at length, the doctrine of election of remedies by mentioning that said doctrine is evolved by Courts on equality, and there are three elements of election, namely existing of two or more remedies; inconsistencies between such two remedies and choice of one of them. If one of the three elements is not there, the doctrine will not apply. Here the remedies provided for are not at all inconsistent to each other rather both the remedies recognize existence of same facts. Both, the application under Order XXXIX, Rule 4 as well as appeal under Order XLIII, Rule 1 (r) are to be decided on different parameters as already noted above. In view of this the proposition that the appeal in question is not maintainable, cannot be accepted, for the simple reason that right of appeal is statutory right and such right cannot be curtailed unless the statute expressly or by necessary implication says so. The sentence "the choice is for the party affected by the order either to move the appellate Court or to approach the same Court which passed ex parte order for any relief' as mentioned in the case of A. Venkatasubbiah Naidu v. S. Chellappan and others, 2007(7) SCC 695, has to be read and understood, in the backdrop of the issue before Apex Court. At no point of time, the issue of simultaneous election of remedy was ever engaging the attention of Court, moreover judgments cannot be substitute of statutory provisions, and same has to be seen, in the facts and circumstances of each case. Here, scheme of things provided for do not reflect that by necessary implication or by express statutory provision, appeal in question is in any way prohibited on application also being moved under Order XXXIX, Rule 4 of the Code. It is well known rule of construction, that a Court must construe a section unless it is impossible to do so, to make such provision workable rather proceeding to make it unworkable. No word can be rendered ineffective or purpose less. Courts are required to carry out legislative intent fully and completely while construing provisions, full effect is to be given to the language used therein giving reference to context and the other provisions of the Statute and by construction a provision shall not be reduced as dead letter. Here the language used in C.P.C. is very clear and does not require any interpretation, as there is no ambiguity in it, rather the same is clear and specific. Dual remedy provided for, cannot be made redundant and otiose merely because one of the remedies has been availed of. However, when both the remedies are opted and the matter is inter se parties, then whatsoever, decision is taken, such decision has to be taken into account by the Court dealing with such cases and the said Court will weigh the impact of the decision, which has been taken at the earlier point of time. In view of this the objection so raised is unsustainable. (Anil Agarwal v. Indian Oil Corporation Ltd. Mumbai & others; 2012 (115) RD 746)

O. - 41, R. 27 – Additional evidence – Discretion of

Appellate Court has discretion to allow production of additional evidence in exceptional circumstances but it must exercised judicial and with circumspection only where any of the prerequisite conditions provider O.15 R. 27 exist?

The general principle is that the appellate court should not travel outside the record of the lower court and cannot take any evidence in appeal. However, as an exception, Order 41 Rule 27 CPC enables the appellate court to take additional evidence in exceptional circumstances. The appellate court may permit additional evidence only and only if the conditions laid down in this Rule are found to exist. The parties are not entitled, as of right, to the admission of such evidence. Thus, the provision does not apply, when on the basis of the evidence on record, the appellate court can pronounce a satisfactory judgment. The matter is entirely within the discretion of the court and is t be used sparingly. Such a discretion is only a judicial discretion circumscribed by the limitation specified in the Rule itself. (Vide K. Venkataramia V. A. Seetharama Reddy, AIR 1963 SC 1526, Muncipal Corpn. Of Greater Bombay V. Lala Pancham, AIR 1965 SC 1008, Soonda Ram V. Rameshwarlal, (1975) 3 SCC 698 and Syed Abdul Khader v. Rami Reddy, (1979) 2 SCC 601. (Union of India Vs. Ibrahim Uddin & another; (2012) 8 SCC 148)

Interim injunction Violated - Court below ought not to have waited for final decision. As the proceedings under Order XXXIX, Rule 2 - A are separate proceedings and Court can go on in spite of any interim order that may be passed in as, to proceed in contempt, is the sole discretion of the Court

The claim of the petitioner is that proceeding under Order XXXIX, Rule 2-A, C.P.C. are separate proceedings and it would not come in the way of the interim order granted by this Court dated 18.12.1990, by which further proceedings in the suit has been stayed. According to the learned Counsel for the petitioner the said writ petitioner in which interim order was granted being Writ Petition No. 32472 of 1990 has since been dismissed in default vide order dated 13.10.2008. It is submitted that Writ Petition No. 32472 of 1990 was his writ petition and a recall application has also been filed but the Court below ought not to have waited for final decision in that writ petition as the proceedings under Order XXXIX, Rule 2-A, C.P.C. are separate proceedings and can go on in spite of any interim order that may be passed in that writ petition. (Sri Mahadeo Ji Maharaja Viraj Man Mandir vs. Munna Lal; 2012(116) RD 745)

Adverse Possession cannot be proved merely be obtaining ration card and house tax receipts

The appellant has also failed to prove the adverse possession of the suit property. Only by obtaining the ration card and the house tax receipts, the appellant cannot strengthen his claim of adverse possession. The High Court was fully justified in reversing the judgment of the First Appellate Court and restoring the judgment of the Trial Court. In our considered opinion, no interference is called for. (A. Shanmugam vs. Ariya K.R.V.M.N.P., Sangam; 2012(116) RD 567)

If there is no prima facie case for trial, question for considering balance of convenience and irreparable injury is not required

Hon’ble Apex Court in Kashi Math Samsthan and another vs. Shrimad Sudhindra Thirth Swami and another, 2010(79) ALR 167 (SC) held that if there is no prima facie case for trial, question for considering balance of convenience and irreparable injury is not required. (Raj Kumar Singh Bhadouria vs. Satya Mohan Pandey; 2012(116) RD 847)

BACK TO INDEX

Constitution of India

Art. 14 - Employment

Question arose before Hon’ble Supreme court that whether over-payment of amount due to wrong fixation of 5^th and 6^th pay scale of teachers/principals based on the 5^th Pay Commission Report could be recovered from the recipients who are serving as teachers. The Division Bench of the High Court rejected the writ petition filed by the Appellants and took the view that since payments were effected due to a mistake committed by the District Education Officer, the same could be recovered. Aggrieved by the said judgment, this appeal has been preferred.

Held - that there is no proposition of law that only if the State or its officials establish that there was misrepresentation or fraud on the part of the recipients of the excess pay, then only the amount paid could be recovered. 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. (Chandi Prasad Uniyal and Ors. Vs. State of Uttarakhand and Ors.; 2012 (5) AWC 5320 (SC)

Art. 14 – Restricting a candidate to apply for only five districts in U.P. his chose is illegal and ultravires of the statute

It is well settled that in the matter of selection and appointment etc. the policy decisions can be taken by the State and the same are not lightly to be interfered by the Court in judicial review but if such policy decision is ex facie irrational, illogical and arbitrary, it can be axed by the Courts while going for judicial review. The respondents in the absence of the counter- affidavit had the opportunity to show deliberation available on record, if any, made while formulating the above policy to show justification or rationality for restricting a candidate in applying in only five districts but that option has not been availed by the respondents though they have opportunity to do so. No such request was made. It appears that on this aspect there is not even deliberation on the part of the respondents. In a sheer momentary flash this condition has been made part of the process of selection without applying mind to its logic and rationality. It is also not discernible as to whether any rational object the respondents intent to achieve by making this restriction. The said condition also fails ex facie to show any nexus with the undisclosed objectives sought to be achieved. It is well settled that any policy decision, which is ex facie arbitrary, irrational or illogical is violative of Article 14 and cannot sustain. (Sarita Shukla v. State of U.P.; 2012 (2) ESC 963 (All HC)

Art. 14 & 16 – Employment – Appointment – Bank – Appellant refused appointment despite having been selected on ground that three criminal case pending against him – Effect of

It is settled law that mere selection does not confer indefeasible right to claim appointment. In State of Haryana v. Subhash Chander Marwah and others; (1974) 1 SCR 165, the Apex Court held as under:

“... One fails to see how the existence of vacancies gives a legal right to a candidate to be selected for appointment. The examination is for the purpose of showing that a particular candidate is eligible for consideration. The selection for appointment comes later. It is open then to the Government to decide how many appointments shall be made. The mere fact that a candidate's name appears in the list will not entitle him to a mandamus that he be appointed.”

A Division Bench of this Court in U. P. Public Service Commission, Allahabad and another v. State of U.P. and another, 2007 (5) ADJ 280 : 2007 (6) AWC 6486, took the similar view and observed as under;

"Moreover, even in the case of a select list candidate, the law is well settled that such a candidate has no indefeasible right to claim appointment merely for the reason that his name is included in the select list as the State is under no legal duty to fill up all or any of the vacancy and it can always be left vacant or unfilled for a valid reason."

Therefore, in the facts of the case, even if the appellant was selected, since the respondents have decided not to offer him appointment because of his involvement in criminal cases, we have no reason to differ with the view taken the learned Single Judge. (Pankaj Pandey vs. State Bank of India and other; 2012(4) AWC 3818)

Art. 14, 16(1) & 141 - Article 16(4) which protects the interest of certain Sections of the Society has to be balanced against the Article 16(1), which protects the interest of every citizen of the entire society - They should be harmonized because they are restatements of the principle of equity under Article 14 of the Constitution

From various decisions and their paragraphs court has mentioned following principles:

(i) Vesting of the power by an enabling provision may be constitutionally valid and yet 'exercise of power' by the State in a given case may be arbitrary, particularly, if the State fails to identify and measure backwardness and inadequacy keeping in mind the efficiency of service as required under Article 335.

(ii) Article 16(4) which protects the interests of certain sections of the society has to be balanced against Article 16(1) which protects the interests of every citizen of the entire society. They should be harmonized because they are re statements of the principle of equality under Article 14.

(iii) Each post gets marked for the particular category of candidates to be appointed against it and any subsequent vacancy has to be filled by that category candidate.

(iv) The appropriate Government has to apply the cadre strength as a unit in the operation of the roster in order to ascertain whether a given class/group is adequately represented in the service. The cadre strength as a unit also ensures that the upper ceiling-limit of 50% is not violated. Further roster has to be post-specific and not vacancy based.

(v) The State has to form its opinion on the quantifiable data regarding adequacy of representation. Clause (4A) of Article 16 is an enabling provision. It gives freedom to the State to provide for reservation in matters of promotion. Clause (4A) of Article 16 applies only to SCs and STs. The said clause is carved out of Article 16(4A). Therefore, Clause (4A) will be governed by the two compelling reasons- "backwardness" and "inadequacy of representation", as mentioned in Article 16(4). If the said two reasons do not exist, then the enabling provision cannot be enforced.

(vi) If the ceiling-limit on the carryover of unfilled vacancies is removed, the other alternative time-factor comes in and in that event, the time- scale has to be imposed in the interest of efficiency in administration as mandated by Article 335. If the time-scale is not kept, then posts will continue to remain vacant for years which would be detrimental to the administration. Therefore, in each case, the appropriate Government will now have to introduce the duration depending upon the fact-situation.

(vii) If the appropriate Government enacts a law providing for reservation without keeping in mind the parameters in Article 16(4) and Article 335, then this Court will certainly set aside and strike down such legislation.

(viii) The constitutional limitation under Article 335 is relaxed and not obliterated. As stated above, be it reservation or evaluation, excessiveness in either would result in violation of the constitutional mandate. This exercise, however, will depend on the facts of each case.

(ix) The concepts of efficiency, backwardness and inadequacy of representation are required to be identified and measured. That exercise depends on the availability of data. That exercise depends on numerous factors. It is for this reason that the enabling provisions are required to be made because each competing claim seeks to achieve certain goals. How best one should optimize these conflicting claims can only be done by the administration in the context of local prevailing conditions in public employment. Article 16(4), therefore, creates a field which enables a State to provide for reservation provided there exists backwardness of a class and inadequacy of representation in employment. These are compelling reasons. They do not exist in Article 16(1). It is only when these reasons are satisfied i that a State gets the power to provide for reservation in the matter of employment.

(U.P. Power Corpn. Ltd. v. Rajesh Kumar; 2012 (2) ESC 233) (SC)

Art. 16 Seniority – Fixation - Determination of Seniorities between direct recruits and enter-charge transferees under direct recruit quota - Principles stated

Principles emerging for determination of seniority between the direct recruits and inter-charge transferees (under direct recruit quota) on interpretation of various Govt. orders are:-

(1) The seniority of direct recruits can neither be reckoned from the date of sending requisition to the recruiting body nor can the seniority be reckoned from the date of selection.

(2) The seniority of direct recruits shall be reckoned from the date when they are available for appointment in any particular year in their quota as per the rotation of quota.

(3) The inter-change transferee belonging to direct recruit quota shall be treated to be direct recruit in the particular year when he joins after transfer and shall be treated to be an addition in the direct recruits available in the particular year.

(4) The seniority in the cadre of inter-charge transferee shall start from the date of person reports for duty in that charge. However, he will not rank senior to any official to a batch selected on merit, whose inter-se seniority is not regulated by the date of joining.

(Rajeev Mohan vs. Central Administrative Tribunal, Allahabad Bench, Allahabad; 2012 (5) ALJ 257)

Art. 16 Compassionate Appointment – Denial - Validity of

The authority concerned has rejected the application of petitioner for compassionate appointment on account of lapse of a period of more than three years from the date of death of Shyam Veer Singh without further considering the case of applicant on merit as to whether the family of deceased employee is continuously facing financial distress and hardship occasioned by death of deceased employee of corporation and whether the family cannot be relieved from such financial distress and hardship without offering compassionate appointment to the applicant.

The Authority concerned is directed to consider the case of petitioner on merit and while considering so the competent authority shall examine as to whether the family of deceased employee continues to be under financial distress and hardship and the family of deceased employee cannot be relieved from such financial hardship and distress unless the compassionate appointment is offered to the petitioner. (Asha Rani vs. State of U.P.; 2012(5) ALJ 335)

Art. 21 & 19 – Right to reputation is also a facit under 21

In the present case, the appellant doctor who was spreading awareness against the exploitation of weaker and marginalized sections of society became a victim of the local coal mafia, police and persons whose interests were being affected thereby. Multiple criminal cases were lodged against the doctor and he was admittedly humiliated in police custody. Pursuant to the intervention by the High Court, departmental proceedings were initiated and the erring officials were punished. The High Court in its final order referred the matter to the Chief Secretary of the State for grant of compensation. Till the present appeal i.e. after 19 years, no compensation had been paid to the appellant even though the Supreme Court initially gave an opportunity to the State Government to consider the issue of compensation.

In the present case the writ court is not concerned with defamation as postulated under Section 499 IPC. The writ court is really concerned with how in a country governed by the rule of law and where Article 21 of the Constitution is treated to be sacred, the dignity and social reputation of a citizen has been affected.

Inhuman treatment has many a facet. It fundamentally can cover such acts which have been inflicted with an intention to cause physical suffering or severe mental pain. It would also include a treatment that is inflicted that causes humiliation and compels a person to act against his will or conscience. Torture is not merely physical but may even consist of mental and psychological torture calculated to create fear to submit to the demands of the police. (Mehmood Nayyar Azam Vs. State of Chhattisgarh and others; (2012) 8 SCC 1)

Art. 21, 32 and 226 – Compensation for harassment in police custody under public law – Consideration of

It needs no special emphasis to state that when an accused is in custody, his Fundamental Rights are not abrogated in too. His dignity cannot be allowed to be comatose. The right to life is enshrined in Article 21 of the Constitution and a fortiorari it includes the right to live with human dignity and all that goes along with it.

There is no shadow of doubt that any treatment meted out 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 has been said by Edward Biggon “the laws of a nation form the most instructive portion of its history.” The Constitution as the organic law of the land has unfolded itself in manifold manner like a living organism in the various decisions of the court about the rights of a person under Article 21 of the Constitution of India. When citizenry rights are sometimes dashed against and pushed back by the members of City Halls, there has to be a remand and when the remand takes place. Article 21 of the Constitution, springs up to action as a protector.

It is the sacrosanct duty of the police authorities to remember that a citizen while in custody is not denuded of his fundamental right under Article 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.

The appellant was tortured while he was in custody. When there is contravention of human rights, the inherent concern as envisaged in Article 21 springs to life and enables the citizen to seek relief by, taking recourse to public law remedy.

The relief of monetary compensation as exemplary damages, in proceedings under Article 32 by the Supreme Court or under Article 226 by the High Courts for established infringement of the indefeasible right guaranteed under Article 21 is a remedy available in public law and is based on the strict liability for contravention of the guaranteed basic and indefeasible rights of the citizen. The purpose of public law is not only to civilize public power but also to assure the citizen that they live under a legal system which aims to protect their interests and preserve their rights. Therefore, when the court moulds the relief by granting 'compensation' in proceedings under Article 32 or 226 seeking enforcement or protection of fundamental rights, it does so under the public law by way of penalizing the wrongdoer and fixing the liability for the public wrong on the State which has failed in its public duty to protect the fundamental rights of the citizen. The payment of compensation in such cases is not to be understood, as it is generally understood in a civil action for damages under the private law but in the broader sense of providing relief by an order of making 'monetary amends' under the public law for the wrong done due to breach of public duty, by not protecting the fundamental rights of the citizen. The compensation is in the nature of 'exemplary damages' awarded against the wrongdoer for the breach of its public law duty and is independent of the rights available to the aggrieved party to claim compensation under the private law in an action based on tort, through a suit instituted in a court of competent jurisdiction or/and prosecute the offender under the penal law. (Dr. Mehmood Nayyar Azam vs. State of Chhatisgarh and others; 2012(5) AWC 4353(SC)

Art. 136 – Scope of interference – Principles reiterated

When the evidence is legally admissible and has been appreciated by the courts in its correct perspective then merely because another view is possible, this Court, in exercise of its powers under Article 136 of the Constitution, would be very reluctant to interfere with the concurrent findings of the courts below. Of course, there are exceptions but they are very limited ones. Where upon careful appreciation of evidence, this Court finds that the courts below have departed from the rule of prudence while appreciating the evidence in a case or the findings are palpably erroneous and are opposed to law or the settled judicial dictums, then the Court may interfere with the concurrent findings. Still, it is not possible to exhaustively state the principles or the kind of cases in which the Court would be justified in disturbing the concurrent findings. It will always depend upon the facts and circumstances of a given case. (Nagesh Vs. State of Karnataka; (2012) 6 SCC 477)

Art. 136, 226 – Consumer protection Act 1986 – Section 27A(1)(c) – Writ petition – Challenging order of National consumer commission – Order of national consumer disputes Redressal commission cannot be questioned in writ jurisdiction of High Court

In the instant case, condoning such an inordinate delay without any sufficient cause would amount to substituting the period of limitation by this Court in place of the period prescribed by the Legislature for filing the special leave petition. Therefore, we do not see any cogent reason to condone the delay.

While declining to interfere in the present special leave petition preferred against the order passed by the High Court in exercise of its extraordinary jurisdiction under Article 226 of the Constitution of India, we hereby make it clear that the order of the Commission are incapable of being questioned under the writ jurisdiction of the High Court, as a statutory appeal in terms of Section 27A (1) (c) lies to this Court. Therefore, we have no hesitation in issuing a direction of caution that it will not be proper exercise of jurisdiction by the High Courts to entertain writ petitions against such orders of the Commission. (Cicily Kallarackal vs. Vehicle Factory; 2012(5) AWC 4398 (SC)

Art. 141 - Constitution Law and Preamble, Pts III and IV and Art. 300-A - Need for law to evolve with time

Although the legal jurisprudence developed in the country in the last five decades is somewhat precedent-centric, the judgments which have a bearing on socio-economic conditions of citizens and issues relating to compensation payable to the victims of motor accidents, those who are deprived of their land and similar matters need to be frequently revisited keeping in view the fast-changing societal values, the effect of globalization on the economy of the nation and their impact on the life of the people. (Santosh Devi Vs. National Insurance Company Limited and Others; (2012) 6 SCC 421)

Art. 226 and 32 – Judicial review of administrative action – Scope and parameters

The power of judicial review is neither unqualified nor unlimited. It has its own limitations. The scope and extent of the power that is so very often invoked has been the subject-matter of several judicial pronouncements within and outside the country. When one talks of 'judicial review' one is instantly reminded of the classic and oft quoted passage from Council of Civil Service Unions (C.C.S.U.) v. Minister for the Civil Service, (1984) 3 All ER 935, where Lord Diplock summed up the Permissible grounds of judicial review thus:

“Judicial review has I think developed to a stage today when, without reiterating any analysis of the steps by which the development has come about, one can conveniently classify under three heads the ground on which administrative action is subject to control by judicial review. The first ground I would call ‘illegality’, the second ‘irrationality’ and the third ‘procedural impropriety”.

By ‘illegality’ as a ground for judicial review I mean that the decision-maker must understand correctly the law that regulates his decision-making power and must give effect to it. Whether he has or not is par excellence a justiciable question to be decided, in the event of dispute, by those persons, the Judges, by whom the judicial power of the State of exercisable.

By ‘irrationality’ I mean what can by now be succinctly referred to as ‘Wednesbury unreasonableness’. It applies to a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it. Whether a decision falls within this category is a question that Judges by their training and experience should be well equipped to answer or else there would be something badly wrong with our judicial system.

The above principles have been accepted even by this Court In a long line of decisions handed down from time to time. We may, however, refer only to some of those decisions where the development of law on the subject has been extensively examined and the principles applicable clearly enunciated. In Tata Cellular v. Union of India, (1994) 6 SCC 651, this Court identified the grounds of judicial review of administrative action in the following words:

"The duty of the Court is to confine itself to the question of legality. Its concern should be:

(1) Whether a decision-making authority exceeded its powers?

(2) Committed an error of law.

(3) Committed a breach of the rules of natural justice.

(4) Reached a decision which no reasonable Tribunal would
have reached or.

(5) Abused its powers.

Therefore, it is not for the Court to determine whether a particular policy or particular decision taken in the fulfilment of that policy is fair. It is only concerned with the manner in which those decisions have been taken. The extent of the duty to act fairly will vary from case to case. Shortly put, the grounds upon which an administrative action is subject to control by judicial review can be classified as under:

(i) Illegality: This means the decision-maker must understand
correctly the law that regulates his decision-making power and must give effect to it.

(ii) Irrationality, namely, Wednesbury unreasonableness.

(iii) Procedural impropriety.”

(Heinz India (P) Ltd. and another vs. State of U.P. and others; 2012 (4) AWC 3662 (SC)

Art. 226 - Advocates Act, S.34 Writ Petition – Maintainability - Election for Bar Association – Whether writ containing the methodic of election disputes of Bar Association is maintainable – Held - “No”

The Court had gone to the issue of maintainability of the writ petition against the High Court Bar Association when a special circumstance compelled the Court to look into the matter in a writ petition. We find that everywhere the role of the Advocates was taken into consideration by the Division Bench as if the Bar Association is the only controlling body of the Advocates like Bar Council. In other words, the measures of the Bar Council in to have been discussed taking the name of the Bar Association giving complete go-by to the Advocates Act, 1961. Therefore, when the subject matter of dispute in Shiv Kumar Akela (supra) was between a petitioner and the Registrar, Societies, Firms and Chits and others and when the question of maintainability of the writ petition against the Bar Association arose incidentally and when on concession on a special circumstance the order was passed but not on contest, we are of the view that the ratio of the judgment is treated to be obiter dicta but not ratio decidendi to hold the High Court Bar Association as a statutory body to attract the writ jurisdiction of this Court under Article 226 of the Constitution. (Udit Chandra vs. State of U.P.; 2012 (5) ALJ 191)

Art. 311 - Employment – Disciplinary proceedings – Invitation – Quashbility of charge sheet – Authority subordinate to appointing Authority can initiate disciplinary proceedings or issue charge memo

The legal proposition has been told down by the Supreme Court while interpreting the provisions of Article 311 of the Constitution of India that the removal and dismissal of a delinquent on misconduct must be by the authority not below the appointing authority. However, it does not mean that disciplinary proceedings may not be initiated against the delinquent by the authority lower than the appointing authority.

It is permissible for an authority, higher than appointing authority to initiate the proceedings and impose punishment, in case he is not the appellate authority so that the delinquent may not loose the right of appeal. In other case, delinquent has to prove as what prejudice has been caused to him.

There is nothing in law which inhibits the authority subordinate to the appointing authority to initiate disciplinary proceedings or issue charge memo and it is certainly not necessary that charges should be framed by the authority competent to award the punishment or that the inquiry should be conducted by such an authority.

Law does not permit quashing of charge-sheet in a routine manner. (Secretary, Ministry of Defence and others vs. Prabhash Chandra Mirdha; 2012(4) AWC 3989)

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Court Fees Act

S. 7(iv)(a) and Art. 17 Schedule II – Court fee payable – In suit for declaration of title, to declare sale deeds void and in effective and consequential relief of permanent injunction – Provisions of S. 7(iv)(a) are applicable instead of Art. 17 Schedule II of above Act

The plaintiff-appellant is owner in possession of the suit property, which was acquired by the plaintiff-appellant through a duly registered gift deed executed by Thakur Pooran Singh S/o Late Sri Natthu Singh on 27.7.1911 and since then, the plaintiff-appellant is in possession of the same. The name of the plaintiff-appellant is entered in the revenue record as owner of the suit property. The suit property was in the tenancy of one Beryl Price and after his death the tenancy devolved upon his legal heirs. The tenant or his successors had no authority, right, or title to transfer the suit property or to execute any sale deed in favour of any person. The tenant of the suit property executed the sale deed dated 20.12.1941 and another sale deed on 15.12.2004 and thereafter on 27.7.2006 in favour of the defendant-respondent nos. 1 to 12. Thereafter, they (defendant respondent nos. 1 to 12) got the map sanctioned in their favour from the respondent no 13 by order dated 27.7.2007.

Before the learned Civil Judge (Senior Division) Dehradun, the defendants moved an application under Order 7, Rule 11 CPC, for rejection of the plaint on the ground that the Court fee paid in insufficient.

The learned Civil Judge (Senior Division) on the basis of the averments made in the plaint and the relief sought by the plaintiff-appellant came to the conclusion that the Court fee is payable as per Section 7(iv)(a) of the Court Fees Act and direction was given accordingly.

Learned Counsel for the respondents drew attention of the Court on the relief sought in the plaint and contended that Article 17 of Schedule II would be applicable in the case where there is no consequential relief. The first relief (A) sought by the plaintiff-appellant is for declaration of title in respect of suit property and its consequential relief is relief (E) for injunction. Second relief (Aa) sought by the plaintiff is to declare two instruments/sale-deeds dated 20.12.1941 and the sale deed dated 27.7.2006 as null and ineffective. In Court’s view the contention of the learned Counsel for the respondents has force.

The plaintiff-petitioner filed Civil Suit No. 602 of 2009 against the defendant-respondents in the Court of Civil Judge (Senior Division) Dehradun. Relief A contains the prayer that the plaintiff be declared owner of the suit property. Relief “Aa” contains the prayer to declare the sale-deeds mentioned in relief clause “Aa” to be void and ineffective. Relief E contains the prayer for permanent injunction.

A perusal of the record reveals that in the case at hand, the plaintiff has sought relief of declaration of title and to declare the sale-deeds void and ineffective. The plaintiff, in addition, has sought the relief of permanent injunction as a consequential relief. In my view, the learned trial Court has rightly held that the provisions of Section 7(iv-A) of the Court Fees Act are applicable and not the provisions of Article 17 of Second Schedule of the Court Fees Act. Accordingly, the learned trial Court has rightly held that the Court fee paid by the plaintiff-appellant is not sufficient and has rightly directed the plaintiff-appellant to make the deficiency of Court-fee good with a time frame. (Dayanand Shiksha Sansthan v. M/s. Ambe Associates and others; 2012 (3) ARC 179)

S. 12(1) and (2) – Provision under – Finality to decision ties on lower court relating to question valuation

That the question of court fee is a matter between the plaintiff and the Court is a principle which has been followed for a long time. The Madras High Court in SL. Lakshmana Ayyar v. TSPLP Palaniappa Chettiar; AIR 1935 Mad 927 held “under the prevailing usage, the court fully goes into the question relating to the Court fee, only upon an objection taken in the written statement by the defendant, but as the judicial committee points out in 36 M.L. 1437 the Court fees Act was passed not to arm a litigant with a weapon of technicality against his opponent, and from that view it follows, that although in actual practice a defendant is permitted to object that the proper Court fee has not been paid, he has, strictly speaking, no legal right to raise such a plea, but his function must be deemed to be, subject to the court’s leave, merely to assist in it coming to a proper decision.”

Though this judgment does not refer to any statutory provisions, Section 12 of the Court Fees Act, 1870 supports this view. Sub section 1 gives finality to the decision of the trial court on the questions relating to valuation.

“(1) Every question relating to valuation for the purpose of determining the amount of any fee chargeable under this Chapter on a plaint or memorandum of appeal, shall be decided by the Court in which such plaint or memorandum, as the case may be, is filed, and such decision shall be final as between the parties to the suit.”

Sub-Section 2 however provides that the appellate or revisional Court can direct the deficiency to be made good if it comes to the conclusion that the lower court had decided the issue to the detriment of the revenue.

(2) “But whenever any such suit comes before a Court of appeal, reference or revision, if such Court considers that the said question has been wrongly decided, to the detriment of the revenue, it shall require the party by whom such fee has been paid to pay so much additional fee as would have been payable had the question been rightly decided, and the provisions of section 10, paragraph (ii), shall apply.”

In view of the finality attached under sub-section (1) to the decision of the trial court and the time of the limited scope of the appellate court’s power to examine whether the lower court wrongly decided the question to the detriment of the revenue, the conclusion obviously is inevitable the defendant has no right to file a revision petition against the decision of the trial court.

However the position under the Madras Court fees act, 1955 is different. Section 12(2) expressly provides for the defendant’s right to raise the question of the court fees:-

“(2) Any defendant may, by his written statement filed before the first hearing of the suit or before evidence is recorded on the merits of the claim but, subject to the next succeeding sub-section, not later, plead that the subject matter of the suit has not been properly valued or that the fee paid is not sufficient. All questions arising on such pleas shall be heard and decided before evidence is recorded affecting such defendant, on the merits of the claim. If the Court decides that the subject-matter of the suit has not been properly valued or that the fee paid is not sufficient, the Court shall fix a date before which the plaint shall be amended in accordance with the Court’s decision and the deficit fee shall be paid. If the plaint be not amended or if the deficit fee be not paid within the time allowed, the plaint shall be rejected and the Court shall pass such order as it deems just regarding costs of the suit.”

However, the Court in Rathnavarma Raja v. Smt. Vimala; AIR 1961 SC 1299 held:-

The Court Fees Act was enacted to collect revenue for the benefit of the State and not to arm a contesting party with a weapon of defence to obstruct the trial of an action.

By recognising that the defendant was entitled to contest the valuation of the properties in dispute as if it were a matter in issue between him and the plaintiff and by entertaining petitions preferred by the defendant to the High Court in exercise of its revisional jurisdiction against the order adjudging court fee payable on the plaint, all progress in the suit for the trial of the dispute on the merits has been effectively frustrated for nearly five years. The Court failed to appreciate what grievance the defendant can make by seeking to invoke the revisional jurisdiction of the High Court on the question whether the plaintiff has paid adequate court fee on his plaint.

But this section only enables the defendant to raise a contention as to the proper court fee payable on a plaint and to assist the court in arriving at a just decision on that question.

Therefore the law is clear that though a defendant is entitled under the Tamil Nadu Act to bring it to the notice of the Court that the amount of court fee paid by the plaintiff is not in accordance with law, the defendant cannot succeed in the suit only on that count. But the dispute of the 2^nd defendant is not regarding the amount of the court fee but the acceptance of the court fee after the expiry of the period of limitation applicable to the suit. (A. Nawab John & Ors. V. V.N. Subramaniyam; 2012(2) ARC 652 (SC)

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Criminal Procedure Code

S. 154 - Delay in lodging F.I.R. – If properly explained – Effect of

In this case, PW 4 is the mother of the deceased while PW 9 is the father of the deceased. Both of them have stated that Anant had pressurized them to send their daughter to Belgaum with him. On 8.10.1993, the accused brought her dead body in the car and at that time her nose was bleeding and there were bloods clotting on the cheeks as well. Anant and Nagesh had informed the parents that she died as a result of consuming poison. They did not give any further information. Further, the father of the deceased. PW 9, had objected that her body be not cremated but despite his protest, the dead body was cremated in the village.

A contention has also been raised to argue that the first information report (FIR), Ext. P-10, is an afterthought as it was lodged after deliberation and planning, that too, after a considerable time. The Court cannot ignore the fact that young daughter of P/W 4 and P/w 9 had died allegedly be consuming poison. No other details were brought to their notice, they had other daughter present in the house and the dead body of the deceased was cremated against their wish. After the cremation, the FIR was lodged. The delay, if any, in the circumstances of the case, thus, stands properly explained. (Nagesh Vs. State of Karnataka; (2012) 6 SCC 477)

S. 156 – Investigation by CBI – Power of Court to direct – Pendency of complaints or trial on same aspect - Does not debar Court from exercising such power

The fact that certain complaints filed by private person or that the matters on same aspect are pending before the Court would not debar Court to direct the CBI to conduct investigation of those aspects. Investigation of a case or filing 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. Sometime 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 that the persons stated in the FIR as accused, might be involved in the commission of the crime. The basic purpose of an investigation is to bring out the truth by conducting fair and proper investigation, in accordance with law and ensure that the guilty are punished.

A magistrate is competent to direct further investigation in terms of Section 173 (8) Cr. PC in the case instituted on a police report. Similarly, the Magistrate has powers under Section 202 Cr.P.C. to direct police investigation while keeping the trial pending before him instituted on the basis of a private complaint in terms of that Section. The provisions of S. 210 Cr. P.C. use the expression ‘shall’ requiring the Magistrate to stay the proceedings of inquiry and trial before him in the event in a similar subject matter, an investigation is found to be in progress. All these provisions clearly indicate the legislative scheme under the Cr. PC that initiation of an investigation and filing of a charge-sheet do not completely debar further or wider investigation by the investigating agency or police, or even by a specialized investigation agency. Significantly, it requires to be noticed that when the Court is to ensure fair and proper investigation in an adversarial system of criminal administration, the jurisdiction of the Court is of a much higher degree than it is in inquisitorial system. It is clearly contemplated under the Indian Criminal Jurisprudence that an investigation should be fair, in accordance with law and should not be tainted. But, at the same time the court has to take precaution that interested or influential persons are not able to misdirect or hijack the investigation so as to throttle a fair investigation resulting in the offenders escaping the punitive course of law. It is the inherent duty of the Court and any lapse in this regard would tantamount to error of jurisdiction. (Samaj Parivartan Samudaya v. State of Karnataka; AIR 2012 SC 2326)

S. 156 - Investigation – Initiation – Suspect does not have right of prior hearing

A suspect has no indefeasible right of being heard prior to initiation of the investigation, particularly by the investigating agency. Even, in fact, the scheme of the Code of Criminal Procedure does not admit of grant of any such opportunity. There is no provision in the Cr.P.C. where an investigating agency must provide a hearing to the affected party before registering an FIR or even before carrying on investigation prior to registration of case against the suspect. The CBI, may even conduct pre-registration inquiry for which notice is not contemplated. It is only in those cases where the Court directs initiation of investigation by a specialized agency or transfer investigation to such agency from another agency that the Court may, in its discretion, grant hearing to the suspect or affected parties. However, that also is not an absolute rule of law and is primarily a matter in the judicial discretion of the Court. (Samaj Parivartan Samudaya & Ors. v. State of Karnataka & Ors.; AIR 2012 SC 2326)

S.157—F.I.R.—Failure to name accused in FIR—Does not necessarily result in his acquittal

The main purpose of the FIR is to satisfy the police officer as to the commission of a cognizable offence for him to conduct further investigation in accordance with law. The primary object is to set the criminal law into motion and it may not be possible to give every minute detail with unmistakable precision in the FIR. FIR itself is not the proof of a case, but is a piece of evidence which could be used for corroborating the case of prosecution. The FIR need not be an encyclopedia of all the facts and circumstances on which the prosecution relies. It only has to state the basic case. Merely because an accused has not been named in the FIR would not necessary result in his acquittal. An accused who has not been named in the FIR, but to whom a definite role has been attributed in the commission of the crime and when such rule is established by cogent and reliable evidence and the prosecution is also able to prove its case beyond reasonable doubt, such an accused can be punished in accordance with law, if found guilty. Every omission in the FIR may not be so material so as to unexceptionally be fatal to the case of prosecution. (Jitender Kumar vs. State of Haryana; 2012 Cr.L.J. 3085 (SC)

S. 157 – FIR - Failure to name accused in FIR - Does not necessarily result in his acquittal - Witness attributing specific role to unnamed accused in commission of murder – Recovery also made on disclosure by accused – Accused cannot be acquitted only because he was not named in FIR

The main purpose of the FIR is to satisfy the police officer as to the commission of a cognizable offence for him to conduct further investigation in accordance with law. The primary object is to set the criminal law into motion and it may not be possible to give every minute detail with unmistakable precision in the FIR. FIR itself is not the proof of a case, but is a piece of evidence which could be used for corroborating the case of prosecution. The FIR itself is not the proof of a case, but is a piece of evidence which could be used for corroborating the case of prosecution, the FIR need not be an encyclopedia of all the facts and circumstances on which the prosecution relies, it only has to state the basic case. Merely because an accused has not been named in the FIR would not necessary result in his acquittal. An accused who has not been named in the FIR, but to whom a definite role has been attributed in the commission of the crime and when such role is established by cogent and reliable evidence and the prosecution is also able to prove its case beyond reasonable doubt, such an accused can be punished in accordance with law, if found guilty. Every omission in the FIR may not be so material so as to unexceptionally be fatal to the case of prosecution.

Where in murder of daughter –in-law committed in pursuance of conspiracy hatched between her in-laws, one of the accused who was attributed specific role by husband of deceased and on whose disclosure vehicle used in crime was recovered was not named in FIR as he had left the places of occurrence before informant arrived the accused only because he was not named in FIR, would not be entitled to acquittal. (Sunil Kumar & Anr. V. State of Haryana; AIR 2012 SC 2488)

S. 178(8) – Further investigation – Power of Magistrate to direct –Not inhibited by requirement to hear accused before making such direction

Once the investigation is conducted in accordance with the provisions of the Cr.P.C., a police officer is bound to file a report before the Court of competent jurisdiction, as contemplated under Section 173 Cr.P.C., upon which the Magistrate can proceed to try the offence, if the same were triable by such Court or commit the case to the Court of Session. It is significant to note that the provisions of Section 173(8) Cr. P.C. open with non-obstante language that nothing in the provisions of Section 173(1) to 173(7) shall be deemed to preclude further investigation in respect of an offence after a report under sub-section (2) has been forwarded to the Magistrate. Thus, under Section 173(8), where charge-sheet has been filed, that Court also enjoys the jurisdiction to direct further investigation into the offence. {Ref. Hemant Dhasmana v. Central Bureau of Investigation & Anr. [(2001) 7 SCC 536: (AIR 2001 SC 2721)]}.

This power cannot have any inhibition including such requirement as being obliged to hear the accused before any, such direction is made. It has been held in Shri Bhagwan Sarnardha Sreepada Vallabha Venkata Vishwandha Maharaj v. State of Andhra Pradesh and Ors. [JT 1999 (4) SC 537: (AIR 1999 se 2332)] that the casting of any such obligation on the Court would only result in encumbering the Court with the burden of searching for all potential accused to be afforded with the opportunity of being heard. (Samaj Parivartan Samudaya & Ors. v. State of Karnataka & Ors.; AIR 2012 SC 2326)

Ss. 190 and 198 – Comparative scope - Explained

Section 190 of the Code states when cognizance of offences can be taken by a Magistrate. It reads as under:

“190. Cognizance of Offences by Magistrates – (1) Subject to the provisions of this Chapter, any Magistrate of the First Class, and any Magistrate of the Second Class specially empowered in this behalf under sub-section (2), may take cognizance of any offence –

(a) Upon receiving a complaint of facts which constitute such offence;

(b) Upon a police report of such facts;

(c) Upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed.

(2) The Chief Judicial Magistrate may empower any Magistrate of the Second Class to take cognizance under sub-section (1) of such offences as are within his competence to inquire into or try.”

Section 198 of the Code pertains to prosecution for offences against marriage. Sub-section (1) thereof is relevant. It reads as under:

“198. Prosecution for offences against marriage – (1) No court shall take cognizance of an offence punishable under Chapter XX of the Indian Penal Code (45 of 1860) except upon a complaint made by some person aggrieved by the offence.”

The above provisions indicate that whereas Section 190 (1) empowers the Magistrate to take cognizance of any offence, upon receiving complaint of facts which constitute such offence; upon police report of such facts; upon information received from any person other than a police officer or upon his knowledge that such offence has been committed, Section 198 which relates to prosecution of offences against marriage brings in the concept of complaint by an aggrieved person and Section 198(1)(c) explains how far the scope of the term “aggrieved person” can be extended in the context of offence under Section 494 IPC. (Ushaben Vs. Kishorbhai Chunilal Talpada & others, (2012) 6 SCC 353)

S.204—Summon under—Reasoned order not required

The expression “cognizance” in Sections 190 and 204 CrPC is entirely a different thing from initiation of proceedings; rather it is the condition precedent to the initiation of proceedings by the Magistrate or the Judge. Cognizance is taken of cases and not of persons. Under Section 190 CrPC, it is the application of judicial mind to the averments in the complaint that constitutes cognizance. At this stage, the Magistrate has to be satisfied whether there is sufficient ground for proceeding and not whether there is sufficient ground for conviction. Whether the evidence is adequate for supporting the conviction can be determined only at the trial and not at the stage of enquiry. If there is sufficient ground for proceeding then the Magistrate is empowered for issuance of process under Section 204 CrPC. (Bhushan Kumar vs. State (NCT of Delhi); (2012) 2 SCC (Cri) 872)

S. 284—Examination of witness by internet conferencing instead of video conferencing—Permissibility of—Allowed to avoid unnecessary expenses

Vide its judgment dated August 7, 2009, delivered in Criminal Appeal Nos. 1191-1194 of 2005, this Court directed as under:

“We further direct that if any foreign experts are to be examined it shall be done only through video conferencing and at the cost of respondents.”

Mr. Krishnamani, learned senior counsel appearing on behalf of the appellant submits that he wishes to examine only two experts, namely, Prof. John Broughton and Prof. John F. Burke, Economists. However, he has given up two other experts.

Learned counsel for the respondents submits that to avoid unnecessary expenses, the appellant may be permitted to examine these two experts on internet conferencing instead of video conferencing. We order accordingly. (Kunal Saha vs. Sukumar Mukherjee; 2012 Cr.L.J. 3312 (SC)

Ss. 311, 242 – Recall of witness for examination – Bribery case –Recall of complainant and shadow witness for cross- examination sought years after examination-in-chief – Plea that their cross-examination was deferred as defence wanted to cross-examine them after trap laying officer was examined – Liable to be accepted as nobody would refuse to cross-examine witnesses who had supported prosecution case

We are, therefore, inclined to believe that the two prosecution witnesses were not cross-examined by the counsel for the appellant not because there was nothing incriminating in their testimony against the appellant but because counsel for the appellant had indeed intended to cross-examine them after the Trap Laying Officer had been examined. The fact that the appellant did not make a formal application to this effect nor even an oral prayer to the Court to that effect at the time the cross-examination was deferred may be a mistake which could be avoided and which may have saved the appellant a lot of trouble in getting the witnesses recalled. But merely because a mistake was committed, should not result in the accused suffering a penalty totally disproportionate to the gravity of the error committed by his lawyer. Denial of an opportunity to recall the witnesses for cross-examination would amount to condemning the appellant without giving him the opportunity to challenge the correctness of the version and the credibility of the witnesses. It is trite that the credibility of witnesses whether in a civil or criminal case can be tested only when the testimony is put through the fire of cross-examination. Denial of an opportunity to do so will result in the serious miscarriage of justice in the present case keeping in view the serious consequences that will follow any such denial.

We are conscious of the fact that recall of the witnesses is being directed nearly four years after they were examined in chief about an incident that is nearly seven years old. Delay takes a heavy toll on the human memory apart from breeding cynicism about the efficacy of the judicial system to decide cases within a reasonably foreseeable time period. To that extent the apprehension that the prosecution may suffer prejudice on account of a belated recall, may not be wholly without any basis. Having said that, we are of the opinion that on a parity of reasoning and looking to the consequences of denial of opportunity to cross-examine the witnesses, we would prefer to err in favour of the appellant getting an opportunity rather than protecting the prosecution against a possible prejudice at his cost. Fairness of the trial is virtue that is sacrosanct in our judicial system and no price is too heavy to protect that virtue. A possible prejudice to prosecution is not even a price, leave alone one that would justify denial of a fair opportunity to the accused to defend himself. (P. Sanjeeva Rao v. State of A.P.; AIR 2012 SC 2242)

S. 313—Examination of accused—False denial made by accused of established facts can be used as incriminating evidence against him

Statement made by accused under S. 313 Cr.P.C. serves a dual purpose, firstly, to afford to the accused an opportunity to explain his conduct and secondly to use denials of established facts as incriminating evidence against him. If the accused gives incorrect or false answers during the course of his statement under S. 313 Cr.P.C., the Court can draw an adverse inference against him. (Munna Kumar Upadhyaya vs. State of A.P.; 2012 Cr.L.J. 3068 (SC)

S. 313 – Examination of accused under – Purpose of

In the instant case of death due to administration of poison, the law required the appellant-accused to provide some explanation as he was last seen in the room with the deceased. The appellant in his statement under S. 313 Cr.P.C., rather than providing some explanation of the circumstances under which the deceased died, offered complete denial. But strangely, a suggestion was put to PW 4 (mother of the deceased) when she was cross-examined by the defence, that the deceased was having a love affair with a student in her college in her hometown and her parents had sent her to another town B with A-1 to ensure that the said love affair failed, and thus the deceased had become desperate in town B and had taken poison and died. If this was the stand of the appellant, then there was no occasion for him to deny every material piece of evidence as well as not to give any explanation when he was specifically asked therefor. The trend of cross-examination on behalf of the appellant implies admission of the death of the deceased having taken place in the premises in question by taking poison, however, the appellant failed to offer any explanation therefore, which was the least expected of him,. Hence, the courts below were justified in drawing an adverse inference against him. (Nagesh Vs. State of Karnataka; (2012) 6 SCC 477)

Ss. 367(5), 235(2) and 354(3)—IPC, S. 302—Death Sentence—Evaluation of sentencing policy and concept of mitigating circumstances in India relating to death penalty discussed

Sec. 367(5) CrPC, 1898 required that if an accused was convicted of an offence punishable with death and the court sentenced him to any punishment other than death, the court shall, in its judgment, give reasons why death sentence was not passed. In 1955, the Code of Criminal Procedure (Amendment) Act, 1955 deleted Section 367(5) where after it was necessary to record any reason for not imposing death sentence where the accused was convicted of an offence punishable with death. The court made a distinction between its formation of opinion on the conviction of the accused for the crime committed and its formation of opinion on the punishment to be imposed for the crime on consideration of extenuating or mitigating circumstances.

The enforcement of the Criminal Procedure Code, 1973 substantially changed the sentencing policy. The most significant change was that under Section 235 thereof an opportunity of hearing was given to accused on question of sentence which was a great humanizing principle of natural justice and fairness procedure in the realm of penology. The accused under CrPC, 1898 did not get any statutory opportunity to establish and prove the mitigating and other extenuating circumstances relating to himself, his family and other relevant factors which are germane to a fair sentence policy which now he could do so.

The object of hearing under Section 235(2) CrPC, 1973 intrinsically and inherently connected with the sentencing procedure, the provision of Section 354(3) CrPC, 1973 which calls for recording of special reason for awarding death sentence must be read conjointly with Section 235(2) CrPC, 1973. Such special reasons can only be validly recorded if an effective opportunity of hearing as contemplated under Section 235(2) CrPC is genuinely extended and is allowed to be exercised by the accused who stands convicted and is awaiting the sentence. These two provisions do not stand in isolation but must be construed as supplementing each other as ensuring the constitutional guarantee of a just, fair and reasonable procedure in the exercise of sentencing discretion by the court.

These changes in the sentencing structure reflect the “evolving standards of decency” that mark the progress of a maturing democracy and which is in accord with the concept of dignity of the individual—one of the core values in our Preamble to the Constitution. In a way these changes signify a paradigm shift in our jurisprudence with the gradual transition of our legal regime from “rule of law” to the “due process of law”. (Rajesh Kumar vs. State (NCT of Delhi); (2012) 2 SCC (Cri) 836)

S. 386 – Appeal against acquittal – Parameters for reversing judgment of acquittal to that of conviction – Stated through authorities

To appreciate the submissions raised at the bar and to evaluate the correctness of the impugned judgment, we think it appropriate to refer to certain authorities in the field which deal with the parameters for reversing a judgment of acquittal to that of conviction by the appellate court.

In Jadunath Singh and others v. State of U.P[1], a three Judge Bench of this Court has held thus:-

“This Court has consistently taken the view that an appeal against acquittal the High Court has full power to review at large all the evidence and to reach the conclusion that upon that evidence the order of acquittal should be reversed. This power of the appellate court in an appeal against acquittal was formulated by the Judicial Committee of the Privy Council in Sheo Swarup v. King Emperor,[2] and Nur Mohammad v. Emperor[3]. These two decisions have been consistently referred to in judgments of this Court as laying down the true scope of the power of an appellate court in hearing criminal appeals: see Surajpal Singh v. State[4] and Sanwat Singh v. State of Rajasthan[5].”

In Damodar Prasad Chandrika Prasad and others v. State of Maharashtra[6] it has been held that once the Appellate Court comes to the conclusion that the view of the trial court is unreasonable, that itself provides a reason for interference. The two-Judge Bench referred to the decision in State of Bombay v. Rusy Mistry[7], to hold that if the finding shocks the conscience of the Court or has disregarded the norms of legal process or substantial and grave in- justice has been done, the same can be interfered with.

20. In Shivaji Sahebrao Bobade and another v. State of Maharashtra[8], the three- Judge Bench opined that there are no fetters on the plenary power of the Appellate Court to review the whole evidence on which the order of acquittal is founded and, indeed, it has a duty to scrutinise the probative material de novo, informed, however, by the weighty thought that the rebuttable innocence attributed to the accused having been converted into an acquittal the homage of our jurisprudence owes to individual liberty constrains the higher court not to upset the finding without very convincing reasons and comprehensive consideration. This Court further proceeded to state that the cherished principles of golden thread to prove beyond reasonable doubt which runs through the wave of our law should not be stretched morbidly to embrace every hunch, hesitancy and degree of doubt. Emphasis was laid on the aspect that a balance has to be struck between chasing chance possibilities as good enough to set the delinquent free and chopping the logic of preponderant probability to punish the marginal innocents.

In State of Karnataka v. K. Gopala Krishna[9], it has been held that where the findings of the Court below are fully unreasonable or perverse and not based on the evidence on record or suffer from serious illegality and include ignorance and misreading of record, the Appellate Court will be justified in setting aside such an order of acquittal. If two views are reasonably possible and the view favouring the accused has been accepted by the courts below, that is sufficient for upholding the order of acquittal. Similar view was reiterated in Ayodhya Singh v. State of Bihar and others.[10]

In Anil Kumar v. State of U.P.[11], it has been stated that interference with an order of acquittal is called for if there are compelling and substantial reasons such as where the impugned judgment is clearly unreasonable and relevant and convincing materials have been unjustifiably eliminated. .

In Girija Prasad (dead) by LRs. v. State of M. P[12], it has been observed that in an appeal against acquittal, the Appellate Court has every power to re-appreciate, review and reconsider the evidence as a whole before it. It is, no doubt, true that there is a presumption of innocence in favour of the accused and that presumption is reinforced by an order of acquittal recorded by the trial court, but that is not the end of the matter. It is for Appellate Court to keep in view the relevant principles of law to re-appreciate and reweigh as a whole and to come to its own conclusion in accord with the principle of criminal jurisprudence.

24. In State of Goa v. Sanjay Thakran[13] it has been reiterated that the Appellate Court can peruse the evidence and interfere with the order of acquittal only if the approach of the lower court is vitiated by some manifest illegality or the decision is perverse.

25. In State of U. P. v. Ajai Kumar[14], the principles stated in State of Rajasthan v. Sohan Lal[15] were reiterated. It is worth noting that in the case of Sohan Lal, it has been stated thus:-

"This Court has repeatedly laid down that as the first appellate court the High Court, even while dealing with an appeal against acquittal, was also entitled, and obliged as well, to scan through and if need be reappreciate the entire evidence, though while choosing to interfere only the court should find an absolute assurance of the guilt on the basis of the evidence on record and not merely because the High Court could take one more possible or a different view only. Except the above, where the matter of the extent and depth of consideration of the appeal is concerned, no distinctions or differences in approach are envisaged in dealing with an appeal as such merely because one was against conviction or the other against an acquittal."

26. In Chandrappa v. State of Karnataka[16]; this Court held as under:-

“42 From the above decisions, in our considered view, the following general principles regarding powers of the appellate court while dealing with an appeal against an order of acquittal emerge:

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

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

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

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

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

27. In S. Ganesan v. Rama Raghuraman and others[17], one of us (Dr. B.S. Chauhan. J), after referring to the decision in Sunil Kumar Sambhudayal Gupta (Dr.) v. State of Maharashtra[18], considered various aspects of dealing with a case of acquittal and after placing reliance upon earlier judgments of this Court, particularly in Balak Ram v. State of U.P.[19], Budh Singh v. State of U.P.[20] , Rama Krishna v. S. Rami Reddy[21], Aruvelu v. State[22] and Babu v. State of Kerala,[23] held that unless there are substantial and compelling circumstances, the order of acquittal is not required to be reversed in appeal. Simila view has been reiterated in Ranjitham v. V. Basvaraj & Ors.[24] And State of Rajasthan v. Shera Ram @ Vishnu Dutta.[25]. (Jugendra Singh v. State of U.P.; AIR 2012 SC 2254)

Ss. 437 and 438 – Bail - Grant of - Exercise of jurisdiction to be exercised judiciously having regards to all relevant facts and circumstances and not as a matter of course

It is true and relevant to note that “grant of bail” is an exercise of judicial discretion vested in a judicial officer to be exercised depending on the facts and circumstances before him, yet it is equally important that exercise of that discretion must be judicious having regard to all relevant facts and circumstances and not as a matter of course. (Registrar General, High Court of Patna Vs. Pandey Gajendra Prasad and others; (2012) 6 SCC 357)

[1] AIR 1972 SC 116

[2] 61 Ind App 398: AIR 1934 PC 227.

[3] AIR 1945 PC 151.

[4] 1952 SCR 193: AIR 1952 SC 52.

[5] (1961) 3 SCR 120: AIR 1961 se 715.

[6] AIR 1972 SC 622.

[7] AIR 1960 SC 39l.

[8] AIR 1973 SC 2622.

[9] AIR 2005 SC 1014: (2005 AIR SCW 949).

[10] (2005) 9 SCC 584: (AIR 2005 se 1022: 2005 AIR sew 975).

[11] (2004) 13 SCC 257: (AIR 2004 SC 4662: 2004 AIR sew 5238).

[12] (2007) 7 SCC 625: (AIR 2007 SC 3106: 2007 AIR sew 5589).

[13] (2007) 3 SCC 755: (AIR 2007 SC (Supp) 61: 2007 AIR SCW 2226).

[14] AIR 2008 SC 1269: (2008 AIR SCW 1303).

[15] (2004) 5 SCC 573: (AIR 2004 SC 4520 2004 AIR SCW 4321).

[16] (2007) 4 SCC 415: (AIR 2007 S ((Supp) 111: 2007 AIR SCW 1850).

[17] (2011) 2 SCC 83: (AIR 2011 SC (Cri) 419).

[18] (2010) 13 SCC 657: (AIR 201I SC (Cri) 69:2010 AIR SCW 7049).

[19] (1975) 3 SCC 219: (AIR 1974 SC 2165).

[20] (2006) 9 SCC 731 : (AIR 2006 SC 2500 : 2006 AIR SCW 2686)

[21] (2008) 5 SCC 535 : (AIR 2008 SC 2066 : 2008 AIR SCW 2824)

[22] (2009) 10 SCC 206 : (AIR 2009 SC (Supp) 2887 : 2009 AIR SCW 6593)

[23] (2010) 9 SCC 189 : (AIR 2011 SC (Cri) 809 : 2010 AIR SCW 5105)

[24] (2012) 1 SCC 414 : (AIR 2012 SC (Cri.) 803 : 2012 AIR SCW 2202)

[25] (2012) 1 SCC 602 : (AIR 2012 SC 1)

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Criminal Trial

I.P.C. - S. 302 – Murder trial – Circumstantial evidence – Death due to administration of poison – Conviction confirmed

In the instant case, there is no eyewitness to the actual scene of crime that resulted in the death of the deceased. To that limited extent, it is a case of circumstantial evidence. The statements of the parents of the deceased (PWs 4 and 9), neighbours (PWs 1 and 2) and the investigating officer (PW 15) clearly establish the case of the prosecution. The statements of the witnesses examined in light of the statement of the investigating officer, provide a complete chain of circumstances as to how the deceased was brought to the place of the incident and was last seen with the appellant A-3, where after she died and her body was cremated in her village despite protest by her parents. There is no major discrepancy or even an iota of real doubt in the prosecution case, and despite the clear irresponsible attitude on part of the police officials who were present at the residence of A-1 when the deceased was brought to the court on the pretext of taking her to a doctor for treatment and her body was taken away, still the prosecution has been able to establish the complete chain of events pointing undoubtedly towards the guilt of the appellant. Herein, the evidence is admissible evidence and has been appreciated in consonance with the rules of prudence and law. These findings can neither be termed as perverse or so improper that no person of common prudence can arrive at that conclusion. Therefore, the conviction of the appellant is confirmed. (Nagesh Vs. State of Karnataka; (2012) 6 SCC 477)

Criminal Trial – Circumstance evidence – Benefit of doubt – Theory of – Explained

It is neither possible nor prudent to state a straitjacket formula or principle which would apply to all cases without variance. Every case has to be appreciated on its own facts and in the light of the evidence led by the parties. It is for the court to examine the cumulative effect of the evidence in order to determine whether the prosecution has been able to establish its case beyond reasonable doubt or that the accused is entitled to the benefit of doubt.

The Court has to examine the evidence in its entirely, particularly, in the case of circumstantial evidence the Court cannot just take on aspect of the entire evidence led in the case like delay in lodging the FIR in isolation of the other evidence placed on record and give undue advantage to the theory of benefit of doubt in favour of the accused.

This Court in Sucha Singh V. State of Punjab, (2003) 7 SCC 643, has stated: (SCC pp. 653-54, para 20)

“20. Exaggerated devotion to the rule of benefit of doubt must not nurture fanciful doubts or lingering suspicion and thereby destroy social defence. Justice cannot be made sterile on the plea that it is better to let a hundred guilty escape than punish an innocent. Letting the guilty escape is not doing justice according to law. (See Gurbachan Singh v. Satpal Singh, (1990) 1 SCC 445. The prosecution is not required to meet any and every hypothesis put forward by the accused. (See State of U.P. V. Ashok Kumar Srivastava, (1992) 2 SCC 86. A reasonable doubt is not an imaginary, trivial or merely possible doubt, but a fair doubt based upon reason and common sense. It must grow out of the evidence in the case. If a case is proved perfectly, it is argued that it is artificial; if a case has some inevitable flaws because human beings are prone to err, it is argued that it is too imperfect. One wonders whether in the meticulous hypersensitivity to eliminate a rare escape Proof beyond reasonable doubt is a guideline, not a fetish. (See Inder Singh v. State (Delhi Admn.), (1978) 4 SCC 161, Vague hunches cannot take place of judicial evaluation.

‘A Judge does not preside over a criminal trial, merely to see that no innocent man is punished. A Judge also presides to see that a guilty man does not escape. Both are public duties’. (Per Viscount Simon in Stirland V. Director of Public Prosecutions quoted in State of U.P. v. Anil Singh (SCC p.692, para 17) . Doubts would be called reasonable if they are free from a zest for abstract speculation. Law cannot afford any favourite other than truth.”

(Nagesh Vs. State of Karnataka; (2012) 6 SCC 477)

Proof—Proof beyond reasonable doubt—Meaning of, and duty of court while applying principle of reasonable doubt—Reiterate

In Shivaji Sahabrao Bobade vs. State of Maharashtra, (1973) 2 SCC 793, this Court held: (SCC pp. 799—800, para 6)

“6. ….. Thus, too frequent acquittals of the guilty may lead to a ferocious penal law, eventually eroding the judicial protection of the guiltless. For all these reasons it is true to say, with Viscount Simon, that ‘a miscarriage of justice may arise from the acquittal of the guilty no less than from the conviction of the innocent…..’ In short, our jurisprudential enthusiasm for presumed innocence must be moderated by the pragmatic need to make criminal justice potent and realistic. A balance has to be struck between chasing chance possibilities as good enough to set the delinquent free and chopping the logic of preponderant probability to punish marginal innocents. We have adopted these cautions in analyzing the evidence and appraising the soundness of the contrary conclusions reached by the courts below. Certainly, in the last analysis reasonable doubts must operate to the advantage of the appellant.”

Therefore, in such a case the paramount importance of the court is to ensure that miscarriage of justice is avoided. The benefit of doubt particularly in every case may not nurture fanciful doubts or lingering suspicion and thereby destroy social defence. A reasonable doubt is not an imaginary trivial or merely possible doubt, but a fair doubt based upon reason and common sense. (Ramesh Harijan vs. State of U.P.; (2012) 2 SCC (Cri) 905)

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Dowry Prohibition Act

S.4—Dowry—Demand of money for establishing business is necessarily a dowry demand

PW 1 made a statement (Ext. PC) before the police at Rohtak Chowk, Kharkohda to the effect that his daughter Indro, aged about 21 years, was married to appellant Rohtash about one year back and in the said marriage he had given sufficient dowry according to his capacity. However, her husband and parents-in-law were not satisfied with the dowry. They always made taunts for not bringing sufficient dowry. His son-in-law made various demands and the complainant had to give him a sum of Rs. 10,000/-. He had received information through Gopi Chand and Ram Kishan that his daughter had died by consuming poisonous tablets and her dead body had been cremated in the morning. On the basis of the said statement, FIR was recorded in P.S. Kharkhoda on 14.7.1989 at about 8.10 p.m. under Sections 304, 201 and 498-A of the IPC. S.I. Inder Lal accompanied Jiwan, Complainant (PW. 1) to village Mandora and went to the house of the accused persons. The accused persons, namely, Smt. Brahmo Devi, Rajbir and Dharampal were found present. He made the inquiries from them and, thereafter, came back to the police station and added the offence under Section 304-B IPC. The said accused as well as the appellant were arrested. The I.O. went to the cremation ground and took into possession the ashes and bones in presence of Jiwan (PW.1), complainant and other witnesses and after putting them under sealed cover sent the same for FSL report. He lifted broken pieces of glass bangles and prepared a recovery memo in presence of the witnesses. He further recorded the statement of witnesses under Section 161 Cr.P.C., 1973. After completing the investigation, the I.O. submitted the chargesheet and trial commenced for the offences under Sections 304-B and 498-A IPC. (Rohtash vs. State of Haryana; 2012 Cr.L.J. 3189 (SC)

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Evidence Act

S.3—Circumstantial evidence—Significance in prosecution—Generally one and only one hypothesis consist with guilt of accused

There can be no dispute that in a case entirely dependent on the circumstantial evidence, the responsibility of the prosecution is more as compared to the case where the ocular testimony or the direct evidence, as the case may be, is available. The Court, before relying on the circumstantial evidence and convicting the accused thereby has to satisfy itself completely that there is no other inference consistent with the innocence of the accused possible nor is there any plausible explanation. The Court must, therefore, make up its mind about the inferences to be drawn from each proved circumstance and should also consider the cumulative effect thereof. In doing this, the court has to satisfy its conscience that it is not proceeding on the imaginary inferences or its prejudices and that there could be no other inference possible excepting the guilt on the part of the accused.

There indeed cannot be a universal test applicable commonly to all the situations for reaching an inference that the accused is not guilty on the basis of the proved circumstances against him nor could there be any quantitative test made applicable. At times, there may be only a few circumstances available to reach a conclusion of the guilt on the part of the accused and at times, even if there are large numbers of circumstances proved, they may not be enough to reach the conclusion of guilt on the part of the accused. It is the quality of each individual circumstance that is material and that would essentially depend upon the quality of evidence. Fanciful imagination in such cases has no place. Clear and irrefutable logic would be an essential factor in arriving at the verdict of guilty on the basis of the proved circumstances. (Mohd. Arif @ Ashfaq vs. State (NCT of Delhi); (2012) 2 SCC (Cri) 766)

S. 3 – Child witness - No law that his evidence shall be rejected, even if it is found reliable – Corroboration is not absolute requirement it is only rule of prudence

There is no rule or practice that in every case the evidence of such a witness be corroborated by other evidence before a conviction can be allowed to stand but as a rule of prudence the Court always finds it desirable to seek corroboration to such evidence from other reliable evidence placed on record. Further, it is not the law that if a witness is a child, his evidence shall be rejected, even if it is found reliable (Ref. Dattu Ramrao Sakhare v. State of Maharashtra {(1997) 5 SCC 3411} and Panchhi v. State of U.P. [(1998) 7 SCC 177] :(AIR 1998 SC 2726: 1998 AIR SCW 2777) (Alagupandi alias Alagupandian v. State of Tamil Nadu; AIR 2012 SC 2405)

Ss. 6 and 24 – Extra – Judicial confession – Admissibility and evidentiary value of – Principles reiterated

It is a settled principle of criminal jurisprudence that extra-judicial confession is a weak piece of evidence. Wherever the court, upon due appreciation of the entire prosecution evidence, intends to base a conviction on an extra-judicial confession suffers from material discrepancies or inherent improbabilities and does not appear to be cogent as per the prosecution version, it may be difficult for the court to base a conviction on such a confession. In such circumstances, the court would be fully justified in ruling such evidence out of consideration.

Now, court has not examined some judgments of the Court dealing with the aspect.

In Balwinder Singh V. State of Punjab, 1995 Supp (4) SCC 259 the court stated the principle that: (SCC p. 265, para 10)

“10. An extra judicial confession by its very nature is rather a weak type of evidence and requires appreciation with a great deal of care and caution. Where an extra judicial confession is surrounded by suspicious circumstances, its credibility becomes doubtful and it loses its importance.”

In Pakkirisammy v. State of T.N., (1997) 8 SCC 158 the court held that: (SCC p.162, para 8)

“8. ……It is well settled that it is a rule of caution where the court would generally look for an independent reliable corroboration before placing any reliance upon such extra – judicial confession.”

Again in Mavita v. State of T.N., (1998) 6 SCC 108 the Court stated the dictum that: (SCC p. 109, para 5)

“4. There is no doubt that convictions can be based on extra-judicial confession but it is well settled that in the very nature of things, it is a weak piece of evidence. It is to be proved just like any other fact and the value thereof depends upon the veracity of the (witnesses) to whom it is made.”

While explaining the dimensions of the principles governing the admissibility and evidentiary value of an extra-judicial confession, this Court in State of Rajasthan v. Raja Ram, (2003) 8 SCC 180 stated the principle that: (SCC p. 192, para 19).

“19. An extra-judicial confession, if voluntary and true and made in a fit state of mind, can be relied upon by the court. The confession will have to be proved like any other fact. The value of the evidence as to confession, like any other evidence, depends upon the veracity of the witness to whom it has been made.”

The Court further expressed the view that: (SCC p. 192, para 19)

“19. …..Such a confession can be relied upon and conviction and thereon if the evidence about the confession comes from the mouth of witnesses who appear to be unbiased, not even remotely inimical to the accused, and in respect of whom nothing is brought out which may tend to indicate that he may have a motive of attributing an untruthful statement to the accused. ……”

In Aloke Nath Dutta v. State of W.B., (2007) 12 SCC 230, the Court, while holding the placing of reliance on extra-judicial confession by the lower courts in absence of other corroborating material as unjustified, observed: (SCC pp. 265-66, paras 87 & 89)

“87. Confession ordinarily is admissible in evidence. It is a relevant fact. It can be acted upon. Confession may under certain circumstances and subject to law laid down by the superior judiciary from time to time form the basis for conviction. It is, however, trite that for the said purpose the court has to satisfy itself in regard to: (i) voluntariness of the confession; (ii) truthfulness of the confession; and (iii) corroboration.

“89. A detailed confession which would otherwise be within the special knowledge of the accused may itself be not sufficient to raise a presumption that confession is a truthful one. Main features of a be based only on the sole basis thereof.”

Accepting the admissibility of the extra judicial confession, the court in Sansar Chand V. State of Rajasthan, (2012) 10 SCC 604, held that (SCC p. 611, paras 29-30)

“29. There is no absolute rule that an extra – judicial confession can never be the basis of a conviction, although ordinarily an extra – judicial confession should be corroborated by some other material.

30. In the present case, the extra-judicial confession by Balwan has been referred to in the judgments of the learned Magistrate and the Special Judge, and it has been corroborated by the other material on record. Court is satisfied that the confession was voluntary and was not the result of inducement, threat or promise a contemplated by Section 24 of the Evidence Act, 1872.”

Dealing with the situation of retraction from the extra-judicial confession made by an accused, the Court in Rameshbhai Chandubhai Rathod v. State of Gujarat, (2009) 5 SCC 740, held as under: (SCC pp. 772-73, para 53)

“53. It appears therefore, that the appellant has retracted his confession. When an extra-judicial confession is retracted by an accused, there is no inflexible rule that the court must invariably accept the retraction. But at the same time it is unsafe for the court to rely on the retracted confession, unless the court on a consideration of the entire evidence comes to a definite conclusion that the retracted confession is true.”

Extra-judicial confession must be established to be true and made voluntarily and in a fit state of mind. The words of the witnesses must be clear, unambiguous and should clearly convey that the accused is the perpetrator of the crime. The extra-judicial confession can be accepted and can be the basis of conviction, if it passes the test of credibility. The extra-judicial confession should inspire confidence and the court should find out whether there are other cogent circumstances on record to support it. (ref. Sk. Yusuf v. State of W.B. and Pancho v. State of Haryana, (2011) 10 SCC 165.

Upon a proper analysis of the above referred judgments of this Court, it will be appropriate to state the principles which would make an extra judicial confession an admissible piece of evidence capable of forming the basis of conviction of an accused. These precepts would guide the judicial mind while dealing with the veracity of cases where the prosecution heavily relies upon an extra – judicial confession alleged to have been made by the accused:

(i) The extra-judicial confession is a weak evidence by itself. It has to be examined by the court with greater care and caution.

(ii) It should be made voluntarily and should be truthful.

(iii) It should inspire confidence.

(iv) An extra-judicial confession attains greater credibility and evidentiary value if it is supported by a chain of cogent circumstances and is further corroborated by other prosecution evidence.

(v) For an extra-judicial confession to be the basis of conviction, it should not suffer from any material discrepancies and inherent improbabilities.

(vi) Such statement essentially has to be proved like any other fact and in accordance with law.

(Sahadevan & another Vs. State of Tamil Nadu; (2012) 6 SCC 403)

S.8—Existence of motive not absolute requirement of law

Existence of a motive for committing a crime is not an absolute requirement of law but it is always a relevant factor, which will be taken into consideration by the courts as it will render assistance to the courts while analyzing the prosecution evidence and determining the guilt of the accused. (Alagupandi vs. State of Tamil Nadu; 2012 Cr.L.J. 3363 (SC)

S.9—Test identification parade—Delay in holding does not perse fatal to validity of parade

There was some delay in holding the identification parade. But the delay per se cannot be fatal to the validity of holding an identification parade. In all cases, without exception, the purpose of the identification parade is to provide corroborative evidence and is more confirmatory in its nature. The identification parade was held in accordance with law and the witnesses had identified the accused from amongst a number of persons who had joined the identification parade. There is nothing on record before us to say that the photographs of the accused were actually printed in the newspaper. Even if that be so, they were printed months prior to the identification parade and would have lost their effect on the minds of the witnesses who were called upon to identify an accused. (Munna Kumar Upadhyaya vs. State of A.P.; 2012 Cr.L.J. 3068 (SC)

S. 9 – Test identification parade - Delay in holding – Not per se fatal to validity of parade

S. 9 –Test identification parade - Photographs of accused published months before parade –Veracity of parade does not stand impaired

There was some delay in holding the identification parade. But the delay per se cannot be fatal of the validity of holding an identification parade, in all cases, without exception. The purpose of the identification parade is to provide corroborative evidence and is more confirmatory in its nature. No other infirmity has been pointed out by the learned counsel appearing for the appellant, in the holding of the identification parade. The identification parade was held in accordance with law and the witnesses had identified the accused from amongst a number of persons who had joined the identification parade. There is nothing on record before us to say that the photographs of the accused were actually printed in the newspaper. Even if that be so, they were printed months prior to the identification parade and would have lost their effect on the minds of the witnesses who were called upon to identify an accused. (Munna Kumar Upadhyaya alias Munna Upadhyaya v. State of Andhra Pradesh; AIR 2012 SC 2470)

S. 24 – Extra-judicial confession - Principles for deciding whether it is admissible and capable of forming basis of conviction

The principles which would make an extra-judicial confession, an admissible piece of evidence capable of forming the basis of conviction of an accused are as follows:-

(i) The extra-judicial confession is weak evidence by itself. It has to be examined by the Court with greater care and caution.

(ii) It should be made voluntarily and should be truthful.

(iii) It should inspire confidence.

(iv) An extra-judicial confession attains greater credibility and evidentiary value if it is supported by other prosecution evidence.

(v) For an extra-judicial confession to be the basis of conviction, it should not suffer from any material discrepancies and inherent improbabilities.

(vi) Such statement essentially has to be proved like any other fact and in accordance with law.

(Shadevan & Anr. V. State of Tamil Nadu; AIR 2012 SC 2435)

Ss. 24, 114(f) – Extra-judicial confession – Injured accused – History given to doctor and recorded in usual course of business – Not extra-judicial confession - Can be relied upon

The statement in so far as they concern the use of various articles in commission of crime and recovery of such articles and stolen items, would form a valid and admissible piece of evidence for the consideration of the court. The history given to the doctor at the time of treatment would not be strictly an extra-judicial confession, but would be a relevant piece of evidence, as these documents had been prepared by PW 33 in the normal course of her business. Even the accused do not dispute that they were given treatment by the doctor in relation to these injuries. Thus, it was for the accused to explain this aspect. This Court has had the occasion to discuss the effect of extra-judicial confessions in a number of decisions. (Munna Kumar Upadhyaya alias Munna Upadhyaya v. State of Andhra Pradesh; AIR 2012 SC 2470)

S.24—Extra-judicial confession—Credibility of

Accused alleged to have killed entire family of deceased and stolen valuables kept in almirah. Finger print taken from almirah found matching with that of accused. Evidence of witnesses and that of recovery of valuable from accused supporting evidence of finger print experts. Hence, mere failure of I.O. to state in his chief examination about taking of finger prints of accused. Does not call for rejection of finger prints evidence.

Extra-judicial confession must be established to be true and made voluntarily and in a fit state of mind. The words of the witnesses must be clear, unambiguous and should clearly convey that the accused is the perpetrator of the crime. The extra-judicial confession can be accepted and can be the basis of conviction, if it passes the test of credibility. The extra-judicial confession should inspire confidence and the Court should find out whether there are other cogent circumstances on record to support it. (Munna Kumar Upadhyaya vs. State of A.P.; 2012 Cr.L.J. 3068 (SC)

S.26—Extra-judicial confession—Recorded when accused was in police custody—Mere fact that no police officer was standing near accused at the time when he made alleged extra judicial confession—Admissibility of—Held, “so called confession cannot be admitted

The language of Sec. 26 makes it crystal clear that a confession made by him in the custody of the police officer cannot be proved against the appellant. We need not advert to the decisions which make out a distinction between ‘custody’ and ‘formal arrest’, as in this case, the formal arrest has already been made, admittedly. The mere fact that no police official was standing near the appellant at the time when he made the alleged extra judicial confession cannot and shall not detract against the fact that he continued to be in the custody of the police officer. In that view of the matter, it appears to us to be evidence that the so-called confession cannot be admitted in evidence. (Salim vs. State of Kerala; 2012 Cr.L.J. 3198)

S.26—Extra-judicial confession made to respectable person namely medical officer while accused was in police custody—Admissibility of

Extra judicial confession, made to respectable person namely medical officer while accused was in police custody, can be ignored and need not be reckoned as relevant probative material against appellant in adjudication of guilt against him. (Salim vs. State of Kerala; 2012 Cr.L.J. 3198)

S.27—Discovery statement—Credibility when discovery is delayed—Satisfactory explanation for delay—Held, discovery statement could not be discarded

It has been held in Suresh Chandra Bahri vs. State of Bihar, 1995 SCC (Cri) 60 that even if the discovery statement is not recorded in writing but there is definite evidence to the effect of making such a discovery statement by the investigating officer concerned, it can still be held to be a good discovery. The question is of the credibility of the evidence of the police officer before whom the discovery statements were made. If the evidence is found to be genuine and creditworthy, there is nothing wrong in accepting such a discovery statement. (Mohd. Arif @ Ashfaq vs. State (NCT of Delhi); (2012) 2 SCC (Cri) 766)

S. 27 – Applicability of – Principles reiterated

In State of Rajasthan v. Bhup Singh, (1997) 10 SCC 675, this Court observed (SCC p. 679, para 14) the following as the conditions prescribed in Section 27 of the Evidence Act, 1872 for unwrapping the cover of ban against admissibility of statement of the accused to the police (1) a fact should have been discovered in consequence of the information received from the accused; (2) he should have been accused of an offence; (3) he should have been in the custody of a police officer when he supplied the information; (4) the fact so discovered should have been deposed to by the witness. The Court observed that if these conditions are satisfied, that part of the information given by the accused which led to such recovery gets denuded of the wrapper of prohibition and it becomes admissible in evidence.

In the present case, the recoveries have been effected upon the statement of the accused under Section 27 of the Evidence Act. These recoveries, in court’s view, were made in furtherance to the statement of the accused who were in police custody and in the presence of independent witnesses. May be that one of them had not been examined, but that by itself shall not vitiate the recovery or make the articles inadmissible in evidence. The aspect which the Court has to consider in the present case is whether these recoveries have been made in accordance with law and whether they are admissible in evidence or not, and most importantly, the link with and effect of the same viz-a-viz the commission of the crime. (Sahadevan and another vs. State of Tamil Nadu; (2012) 6 SCC 403)

S. 27 – Penal Code, S. 300 – Recovery made on disclosure by accused – Reliability – Murder case - Disclosure made by Accused leading to recovery of kerosene bottle, Moped etc. - Post mortem report and forensic report however not indicating presence of kerosene on body or belongings of deceased – Recovery evidence cannot be relied upon

The aspect which the Court has to consider in the present case is whether these recoveries have been made in accordance with law and whether they are admissible in evidence or not and most importantly the link with and effect of the same vis-à-vis the commission of the crime. According to the post-mortem report Ext. p-10 as well as the forensic report Ext. P.22, kerosene or its smell was neither found on the body nor the belongings of the deceased and, therefore, it creates a little doubt as to whether the recovered items were at all and actually used in the commission of crime. However, as far as TVS moped, MO-6 is concerned, there is sufficient evidence to show that it was used by the accused but the other contradictions and discrepancies noted above over shadow this evidence and give advantage to the accused. (Shadevan & Anr. V. State of Tamil Nadu; AIR 2012 SC 2435)

S.45—Finger print evidence—Reliability of

S. 53 & 54

Prosecution has to prove its case beyond reasonable doubt and cannot take support from the weakness of the case of defence. There must be proper legal evidence and material on record to record the conviction of the accused. Conviction can be based on sole testimony of the prosecutrix provided it lends assurance of her testimony. However, in case the court has reason not to accept the version of prosecutrix on its face value, it may look for corroboration. In case the evidence is read in its totality and the story projected by the prosecutrix is found to be improbable, the prosecutrix case becomes liable to be rejected.

The court must act with sensitivity and appreciate the evidence in totality of the background of the entire case and not in the isolation. Even if the prosecutrix is of easy virtue/unchaste woman that itself cannot be a determinative factor and the court is required to adjudicate whether the accused committed rape on the victim on the occasion complained of. (Narender Kumar v. State (NCT of Delhi); AIR 2012 SC 2281)

Circumstantial evidence - Confession – Extra-judicial confession – Consideration of

There is no doubt that in the present case there is no eyewitness. It is a case based upon circumstantial evidence. In case of circumstantial evidence, the onus lies upon the prosecution to prove the complete chain of events which shall undoubtedly point towards the guilt of the accused. Furtherance, in case of circumstantial evidence, where the prosecution relies upon an extra-judicial confession, the court has to examine the same with a greater degree of care and caution. (Sahadevan and another Vs. State of Tamil Nadu; (2012) 6 SCC 403)

Circumstantial Evidence – Theory of last seen together – Applicability of

With the development of law, the theory of last seen has become a definite tool in the hands of the prosecution to establish the guilt of the accused. This concept is also accepted in various judgments of this Court. The Court has taken the consistent view that where the only circumstantial evidence taken resort to by the prosecution is that the accused and the deceased were last seen together, it may raise suspicion but it is not independently sufficient to lead to a finding of guilt.

In Arjun Marik v. State of Bihar, 1994 Supp (2) SCC 372, this Court took the view that where the appellant was alleged to have gone to the house of one Sitaram in the evening of 19.7.1985 and had stayed in the night at the house of deceased Sitaram, the evidence was very shaky and inconclusive. Even if it was accepted that they were there, it would, at best, amount to be the evidence of the appellants having been last seen together with the deceased with the deceased. The Court further observed that: (SCC p. 385, para 31)

“31. ….it is settled law that the only circumstance of last seen will not complete the chain of circumstances to record (a) finding that it is consistent only with the hypothesis of the guilt of the accused and, therefore, no conviction, on that basis alone, can be found.”

Even in State of Karnataka v. M.V. Mahesh, (2003) 3 SCC 353, this court held that: (SCC p. 354, para 3)

“3. …. Merely being seen last together is not enough. What has to be established in a case of this nature is definite evidence to indicate that (the deceased) had been done to death of which the respondent is or must be aware as also proximate to the time of being last seen together. No such clinching evidence is put forth. It is no doubt true that even in the absence of the corpus deliciti it is possible to establish in an appropriate case commission of murder on appropriate material being made available to the court.”

In State of U.P. V. Satish, (2005) 3 SCC 114, Supreme Court had stated that (SCC p. 123, para 22) the principle of last seen comes into play

“where the time gap between the point of time when the accused and the deceased were last seen alive and when the fact that deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible.”

Undoubtedly, the last seen theory is an important event in the chain of circumstances that would completely establish and/or could point to the guilt of the accused with some certainty. But this theory should be applied while taking into consideration thecae of the prosecution in its entirety and keeping in mind the circumstances that precede and follow the point of being so last seen. (Sahadevan and another Vs. State of Tamil Nadu; (202) 6 SCC 403)

Ss. 63 and 65 - Secondary Evidence - Admissibility

The original certificate of admission is given to the allottee and only a counterpart is retained on the record. The said certificate in original does not form part of the record of the L.M.C. or the Assistant Collector.

The law is settled that the party should produce the best evidence possible within his reach and not merely rely upon the secondary evidence and that when secondary evidence is produced instead of the primary some reason or explanation must be given for not producing the original.

The evidence on record is that the record of the LMS has been lost or destroyed but it is not the case of the petitioner that the certificate of lease issued to him has been lost or destroyed or that no such certificate was never given to him. There is no explanation for not production the original of the certificate of admission so given. In the absence of such a case and evidence from the side of the petitioner, secondary evidence in the form of photocopy of the certificate of admission was not admissible in evidence.

In view of above, court has the opinion that no illegality or error has been committed either by the trial court or the Board of Revenue in refusing to rely upon the photocopy of the certificate of lease. The oral evidence to prove that the lease was actually granted to the petitioner in the absence of the documentary evidence is of no avail. (Ajuddhi vs. State of U.P.; 2012 (5) ALJ 20)

Ss. 73, 45 – Comparison of signatures – Sending documents for opinion of expert - S. 73 enables Court to undertake exercise of comparison of signature, writing or seal without need for sending same to opinion of handwriting expert - S. 45 does not cast an obligation on Courts to send a disputed document for expert’s opinion as matter of course

Under Section 73 of the Act, the Court is empowered to ascertain whether a signature, handwriting or seal is that of the person, by whom it purports to have been written or made, and compare any signature, writing or seal, admitted or proved to the satisfaction of the Court, to have been written or made by that person with the one, which is to be proved. This provision, thus, enables the Court to undertake the exercise of comparison of the signature, writing or seal without need for sending the same to the opinion of the handwriting expert. Section 45 of the Act recognized the opinions of the experts in handwriting or finger impressions as relevant facts. Section 45 does not cast an obligation on the Courts to send a disputed document for expert’s opinion as matter of course. It is only when the court forms an opinion that, having regard to the facts of the particular case.

Since the Court below has formed an opinion that it can by itself undertake the exercise of comparison, of the signatures, between the admitted and disputed documents, it cannot be said that the discretion exercised by the Court below is either unsound or irrational calling for interference of this court in exercise of its supervisory jurisdiction under Article 227 of the Constitution of India. (Gowry Shankar v. J.L. Babu & Anr.; AIR 2012 AP 118)

S. 90 – Old documents – Presumption u/s 90 does not relate to correctness of statements contained in document

The alleged partition in the year 1819 among the ancestors of Respondent 1-plaintiff even if had taken place, cannot be a proof of title of Respondent 1-plaintiff over the suit property as the pedigree has not been proved. Presumption under Section 90 of the Evidence Act in respect of 30 years’ old document coming from proper custody relates to the signature, execution and attestation of a document i.e. to its genuineness but it does not give rise to presumption of correctness of every statement contained in it. That the contents of the document are true or it had been acted upon, have to be proved like any other fact. More so, in case the will is ignored, there is nothing on record to show as to how Respondent 1-plaintiff could claim the title. (Union of India Vs. Ibrahim Uddin and another; (2012) 8 SCC 148)

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Hindu Marriage Act

S. 23 - Restitution of conjugal rights - Consideration of

The grievances of the appellant are that there is no marriage between him and the respondent but the respondent in order to defame her in society filed a suit for restitution for conjugal rights, inter alia, on the ground that marriage between them took place on 28th October, 2007. It is an admitted position that there is no valid document evidencing marriage. Nor is there any acceptable evidence of marriage. The Family Court came to a finding that the attempt of the husband is to blackmail the appellant herein and the respondent husband had already married Smt. Seema, D/o Shri Jeet Singh, R/o 263 Begum Bagh, Meerut and a daughter was born in connection with the said marriage and was studying in school. In the background of those facts the Principal Judge, Family Court, Meerut held since there is no marriage there is no question of restitution. The Family Court, therefore, dismissed the said petition with cost of Rs.2 lacs.

An appeal was filed before the High Court in which the Division Bench of the High Court has taken very peculiar stand in proceeding by trying for conciliation. The High Court has noted that the appellant girl has categorically denied the existence of marriage and the existence of joint account in a bank. The High Court has not recorded anywhere about the validity of the marriage. Even then the High Court strangely enough explored the possibility of a settlement between the parties. The High Court without coming to any finding about the validity of marriage and after recording that the validity of marriage was always denied by the appellant gave certain directions which are wholly inconsistent with the facts of the case. Since no marriage has been established, directions given by the High Court are wholly inappropriate. (Pallavi Bhardwah vs. Pratap Chauhan; 2012(5) ALJ 10)

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Hindu Minority and Guardianship Act

S. 6 – Custody - Children of estranged couple – Both children closely associated with each other – Separation of children would be against their welfare - Mother not in a position to look after educational need of elder son - Father member of Indian Administrative Service able to take very good care of children with help of his father who was professor – Custody of both children given to father - Mother given visitation right to meet children once in month at father’s cost - Children to go to mother for 3 days during vacation

Upon speaking to the children personally, we also found that they are indeed very much attached to each other. This fact was also noted by the learned single Judge of the High Court in the impugned judgment, and is also admitted by both the parties in their respective written submissions. Looking to the overall peculiar circumstances of the case, it is our view that the welfare of both the children would be best served if they remain together. In our view it would not be just and proper to separate both brothers, who are admittedly very close to each other.

During the period of vacation exceeding two weeks, the appellant- father shall send the children to Delhi so that the children can stay with the respondent mother at least for three days. We are sure that the appellant and the respondent shall determine the modalities as to during which portion of the vacation, the children should visit the respondent- mother as almost both the parents are interested in having the company of the children. (Shaleen Kabra v. Shiwani Kabra; AIR 2012 SC 2467)

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Indian Penal Code

Ss. 120-B, 300 – Criminal PC, S. 218 – Accused charged of conspiracy to commit murder – Charge under S. 300 not framed –As yet accused can be convicted U/s. 120 B r/w S. 300 if found to have actually committed offence along with other accused with whom he conspired

In other words, once the Court finds an accused guilty of Section 120 B, where the accused had conspired to commit an offence and actually committed the offence with other accused with whom he conspired, they all shall individually be punishable for the offence for which such conspiracy was hatched. Thus, we do not find any error in the judgment of the trial court in convicting the accused for an offence under Section 120 B read with Section 302, IPC. (Sunil Kumar & Anr. V. State of Haryana; AIR 2012 SC 2488)

Ss. 235(2), 354(3) and 465 – Compliance with S. 235(2) – Necessity – “Hearing the accused” on question of sentence – Implication of

Section 235 Cr.P.C. in its entirety is extracted for reference:

“235. Judgment of acquittal or conviction – (1) After hearing arguments and points of law (if any), the Judge shall give a judgment in the case.

(2) If the accused is convicted, the Judge shall, unless, he proceeds in accordance with the provisions of Section 360, hear the accused on the question of sentence, and then pass sentence on him according to law.”

The scope of the abovementioned provision has come up for consideration before the Apex Court on various occasions, Reference to few of the judgments is apposite. The courts are unanimous in their view that sub section (2) of Section 235 clearly states that the hearing has to be given to the accused on the question of sentence, but the question is what is the object and purpose of hearing and what are the matters to be elicited from the accused. Of course, full opportunity has to be given to produce adequate materials before the court and, if found necessary, the Court may also give an opportunity to lead evidence. Evidence on what, the evidence which has some relevance on the question of sentence and not on conviction. But the further question to be examined is whether, in the absence of adding any materials by the accused, has the court any duty to elicit any information from whatever sources before awarding sentence, especially capital punishment? The psychological trauma which a convict undergoes on hearing that he would e awarded capital sentence, that is, death, has to be borne in mind by the court ? The convict could be a completely shattered person, may not be in his normal senses, may be dumbfounded, unable to speak anything. Can, in such a situation, the court presume that he has nothing to speak or mechanically record what he states, without making any conscious effort to elicit relevant information, which has some bearing in awarding a proper and adequate sentence? Awarding death sentence is always an exception, only in the rarest of rare cases.

In case of Santa Singh Vs. State of Punjab, (1976) 4 SCC 190, this court has extensively dealt with the nature and scope of Section 235(2) Cr.P.C. stating that such a provision was introduced in consonance with the modern trends in penology and sentencing procedures. The Court noticed that today more than ever before, sentencing has become a delicate task. Requiring an interdisciplinary approach and calling for skills and talents very much different from those ordinarily expected of lawyers. In this case, the Court found that the requirements of Section 235(2) were not complied with, inasmuch as no opportunity was given to the appellant, after recording his conviction, to produce material and make submissions in regard to the sentence to be imposed on him. The Court noticed in that case that the Sessions Court chose to inflict death sentence on the accused and the possibility could not b ruled out that if the accused had been given an opportunity to produce material and make submissions on the question of sentence, as contemplated by Section 235(2), he might have been in a position to persuade the Sessions Court to impose a lesser penalty of life imprisonment. The Court, therefore, held that the breach of the mandatory requirement of Section 235(2) could not, in the circumstances, be ignored as inconsequential and it can vitiate the sentence of death imposed by the Sessions Court. 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. (Ajay Pandit alias Jagdish Dayabhai Patel and another Vs. State of Maharashtra; (2012) 8 SCC 43)

S. 299 - Culpable homicide and murder – Distinction

Section 300 of the code states what kind of acts, when done with the intention of causing death or bodily injury as he offender knows to be likely to cause death or cause death or causing bodily injury to any person, which is sufficient in the ordinary course of nature to cause death or the person causing injury knows that it is so imminently dangerous that it must in all probability cause death, would amount to ‘murder’ when such an act is committed, without any excuse for incurring the risk of causing death or such bodily injury. Sections 299 and 300 of the Code deal with the definition of ‘culpable homicide’ and ‘murder’, respectively. In terms of ‘culpable homicide’ is described as an act of causing death (i) with the intention of causing death or (ii) with the intention of causing such bodily injury as is likely to cause death, or (iii) with the knowledge that such an act is likely to cause death. As is clear from a reading of this provision, the former part of it, emphasizes on the expression ‘intention’ while the latter upon ‘knowledge’. Both these are positive mental attitudes, however, of different degrees. The mental element in ‘culpable homicide’, that is, the mental attitude towards the consequences of conduct is one of intention and knowledge. Once an offence is caused in any of the three stated manners noted-above, it would be ‘culpable homicide’. Section 300, however, deals with ‘murder’ although there is no clear definition of ‘murder’ in Section 300 of the Code. As has been repeatedly held by this Court, ‘culpable homicide’ is the genus and ‘murder’ is its species and all ‘murders’ are ‘culpable homicides’ but all ‘culpable homicides’ are not ‘murders’.

The safest way of approach to the interpretation and application of these provisions seems to be to keep in focus the keywords used in the various clauses of these sections. The Court provided the following comparative table to help in appreciating the points of discussion between these two offences:

Section 299	Section 300
A person commits culpable homicide if the act by which the death is caused is done -	Subject to certain exceptions culpable homicide is murder if the act by which the death is caused is done –
INTENTION
(a) with the intention of causing death; or	(1) with the intention of causing death; or
(b) with the intention of causing such bodily injury as is likely to cause death; or	(2) with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused; or
	(3) with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death; or
KNOWLEDGE
(c) with the knowledge that the act is likely to cause death.	(4) with the knowledge that the act is so imminently dangerous that it must in all probability cause death or such bodily injury as is likely to cause death, and without any excuse or incurring the risk of causing death or such injury as is mentioned above.”

(Rampal Singh vs. State of UP; 2012(5) ALJ 248 (SC)

S. 300 – Evidence Act, S 45 – Murder - Finger print evidence - Reliability – Accused alleged to have killed entire family of deceased and stolen valuables kept in almirah - Finger print taken from almirah found matching with that of accused – Evidence of witnesses and that of recovery of valuable from accused supporting evidence of finger print experts – Mere failure of I.O. to state in his chief examination about taking of finger prints of accused - Does not call for rejection of finger prints evidence

No suggestion was put to this witness in his cross-examination that he never went to the site, never collected the finger prints or that the finger prints of the accused were never sent by the police to him. We may also notice that, even to the investigating officer, this suggestion was never put. The attempt on behalf of the accused to object on the evidence of the finger prints on the ground that the investigating officer has not told in his examination-in-chief that he had taken the finger prints of the accused and sent them to the expert does not carry much weight in view of the above documentary, ocular and expert evidence. It was expected of the investigating Officer to make a statement in that behalf, but absence of such statement would not weight so much against the prosecution that the court should be persuaded to reject the evidence of PW 38 along with the clinching evidence of Ext. P 52, P-72 and p-73 respectively.

In the present case, lifting of chance finger prints and on comparison being found to be matching with the sample finger prints of the accused, taken by the Police, is not the only piece of evidence. There is corroborating evidence of the prosecution witnesses on the one hand, and on the other, evidence of PW-12, the daughter of the deceased, who identified the gold ornaments, which were stolen by the accused from the almirah, as belonging to her deceased mother and which were recovered from the possession of accused persons.

In light of the above, we have no hesitation in rejecting this contention of the appellant. The prosecution has by other evidence, clearly been able to establish the physical contact between the accused and the articles within the almirah, and therefore, the almirah door also. (Munna Kumar Upadhyaya alias Munna Upadhyaya v. State of Andhra Pradesh; AIR 2012 SC 2470)

S. 300, 304 - Culpable homicide amounting to murder and culpable homicide not murder - Distinction

Section 300 of the Code proceeds with reference to Section 299 of the Code. ‘Culpable homicide’ may or may not amount to ‘murder’, in terms of Section 300 of the Code. When a ‘culpable homicide is murder’, the punitive consequences shall follow in terms of Section 302 of the Code while in other cases, that is, where an offence is ‘culpable homicide not amounting to murder’, punishment would be dealt with under Section 304 of the Code. Various judgments of this Court have dealt with the cases which fall in various classes of firstly, secondly, thirdly and fourthly, respectively, stated under Section 300 of the Code. It would not be necessary for us to deal with that aspect of the case in any further detail. Of course, the principles that have been stated in various judgments like Abdul Waheed Khan @ Waheed and Others v. State of A.P. [(2002) 7 SCC 175], Virsa Singh v. State of Punjab [AIR 1958 SC 465] and Rajwant and Anr. v. State of Kerala [AIR 1966 SC 1874] are the broad guidelines and not cast-iron imperatives. These are the cases which would provide precepts for the courts to exercise their judicial discretion while considering the cases to determine as to which particular clause of Section 300 of the Code they fall in.

Section 300 of the Code states what kind of acts, when done with the intention of causing death or bodily injury as the offender knows to be likely to cause death or causing bodily injury to any person, which is sufficient in the ordinary course of nature to cause death or the person causing injury knows that it is so imminently dangerous that it must in all probability cause death, would amount to ‘murder’. It is also ‘murder’ when such an act is committed, without any excuse for incurring the risk of causing death or such bodily injury. The Section also prescribes the exceptions to ‘culpable homicide amounting to murder’. The explanations spell out the elements which need to be satisfied for application of such exceptions, like an act done in the heat of passion and without pre-mediation. Where the offender whilst being deprived of the power of self-control by grave and sudden provocation causes the death of the person who has caused the provocation or causes the death of any other person by mistake or accident, provided such provocation was not at the behest of the offender himself, ‘culpable homicide would not amount to murder’.

In Ajit Singh v. State of Punjab [(2011) 9 SCC 462], the Court held that in order to hold whether an offence would fall under Section 302 or Section 304 Part I of the Code, the courts have to be extremely cautious in examining whether the same falls under Section 300 of the Code which states whether a culpable homicide is murder, or would it fall under its five exceptions which lay down when culpable homicide is not murder. In other words, Section 300 states both, what is murder and what is not. First finds place in Section 300 in its four stated categories, while the second finds detailed mention in the stated five exceptions to Section 300. The legislature in its wisdom, thus, covered the entire gamut of culpable homicide that ‘amounting to murder’ as well as that ‘not amounting to murder’ in a composite manner in Section 300 of the Code. Sections 302 and 304 of the Code are primarily the punitive provisions. They declare what punishment a person would be liable to be awarded, if he commits either of the offences. (Rampal Singh vs. State of UP; 2012 (5) ALJ 248 (SC)

S.300—Exception 1—Murder—Grave and sudden provocation—Question whether provocation was grave and sudden—Determination of

The meaning of the expressions “grave” and “sudden” provocation has come up for consideration before this Court in several cases and it is unnecessary to refer to the judgments in those cases. The expression “grave” indicate that provocation be of such a nature so as to give cause for alarm to the appellant. “Sudden” means an action which must be quick and unexpected so far as to provoke the appellant. The question whether provocation was grave and sudden is a question of fact and not one of law. Each case is to be considered according to its own facts.

Under Exception 1 of Section 300, provocation must be grave and sudden and must have by gravity and suddenness deprived the appellant of the power of self-control, and not merely to set up provocation as a defence. It is not enough to show that the appellant was provoked into loosing his control, must be shown that the provocation was such as would in the circumstances have caused the reasonable man to loose his self-control. A person could claim the benefit of provocation has to show that the provocation was grave and sudden that he was deprived of power of self-control and that he caused the death of a person while he was still in that state of mind. (Sukhlal Sarkar vs. Union of India & Ors.; 2012 Cr.L.J. 3032 (SC)

S. 302—Murder—Time of death—Ascertainment from content of stomach not always determinative

Judging the time of death from the contents of the stomach, may not always be the determinative test. It will require due corroboration from other evidence. If the prosecution is able to prove its case beyond reasonable doubt and cumulatively, the evidence of the prosecution, including the time of death, is proved beyond reasonable doubt and the same points towards the guilt of the accused, then it may not be appropriate for the Court to wholly reject the case of the prosecution and to determine the time of death with reference to the stomach contents of the deceased.

This Court in the case of Shivappa vs. State of Karnataka, (1995) 2 SCC 76 stated the dictum that medical opinion is admissible in evidence like all other types of evidence and there is no hard-and-fast rule with regard to appreciation of medical evidence. It is not to be treated as sacrosanct in its absolute terms. Agreeing with the view expressed in Modi’s book on Medical Jurisprudence and Toxicology, this Court recorded that so far as the food contents are concerned, they remain for long hours in the stomach and the duration thereof depends upon various other factors. Indisputably, a large number of factors are responsible for drawing an inference with regard to the digestion of food. It may be difficult, if not impossible, to state exactly the time which would be taken for the purpose of digestion.

Similarly, in the case of Jabbar Singh vs. State of Rajasthan, (1994) SCC (Cr) 1745, the Court while dealing with the evidence of DW-1 who had opined that since there was some semi-digested food, the occurrence must have taken place earlier and not at 3.00 a.m. The Court reiterated the principle that this was an opinion evidence and the possibility of the deceased having eaten late in the night could not be ruled out.

In view of the above medical references, the view expressed in Modi’s book (supra) and the principles stated in the judgments of this Court, it can safely be predicated that determination of the time of death solely with reference to the stomach contents is not a very certain and determinative factor. It is one of the relevant considerations. The medical evidence has to be examined in light of the entire evidence produced by the parties. It is certainly a relevant factor and can be used as a significant tool by the Court for coming to the conclusion as to the time of death of the deceased but other factors and circumstances cannot be ignored. The Court should examine the collective or cumulative effect of the prosecution evidence along with the medical evidence to arrive at the correct conclusion. (Sunil Kumar & Anr. vs. State of Haryana; 2012 Cr.L.J. 3085 (SC)

S.302 - Death sentence - General principles for imposition of death sentence – Imposition of death sentence is an exception and not rule

Awarding death sentence is an exception, not the rule, and only in the 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. (Ajay Pandit alias Jagdish Dayabhai Patel & another Vs. State of Maharashtra; (2012) 8 SCC 43)

S. 304-B – Criminal P.C., S 386 - Dowry death – Allegation that deceased committed suicide by taking pills because of ill-treatment given by accused husband on account of dowry - Father of deceased though deposed that accused has demanded certain sum for establishing his business - Such fact however not mentioned in his statement under S, 161, Criminal P.C. - Such demand even if made may not necessarily be demand of dowry

This Court in Appasaheb v. State of Maharashtra, (2007) 1 SCC721 (AIR 2007 SC 763), while dealing with the similar issue and definition of the word ‘dowry’ held as under: “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.”

The aforesaid judgment was reconsidered by this Court in Bachni Devi v. State of Maharashtra, (2011) 4 SCC 427: (AIR 2011 SC 1098), wherein this Court held that the aforesaid judgment does not lay down a law of universal application. Each case has to be decided on its own facts and merit. If a demand for property or valuable security, directly or indirectly, has nexus with marriage, such demand would constitute demand for dowry. The cause of raising of such demand remains immaterial.

We are of the considered opinion that in the instant case there had been major improvements/embellishments in the prosecution case and demand of Rs. 10,000/- by the appellant does not find mention in the statements under Section 161 Cr.P.C. More so, even if such demand was there, it may not necessarily be a demand of dowry. Further, the chemical analysis report falsifies the theory of suicide by deceased taking any pills. In such a fact-situation, the defence taken by the appellant in his statement under Section 313 Cr.P.C. could be plausible.

Thus, appeal succeeds and is allowed. The appellant is given the benefit of doubt and the impugned judgment of the High Court dated 11.1.2007 is set aside. The appellant is acquitted of all the charges. (Rohtash v. State of Haryana; AIR 2012 SC 2297)

S. 304-B Dowry Death - Proof of

In present case, it is clear that there was persistent demand of dowry by the accused persons and they had killed her by sprinkling kerosene on her and putting her on fire. There can be no dispute that the deceased died an unnatural death within seven years of her marriage. Thus, the ingredients of Section 304B are fully satisfied in the present case. We are least satisfied with the contention of the learned counsel appearing for the appellants, that merely because the letters on record do not specifically mention the dowry demands, such letters have to be construed by themselves without reference to other evidence and rebutting the presumption of a dowry death, giving the benefit of doubt to the accused. These letters have to be read in conjunction with the statements of PW1 and PW2. It is difficult for one to imagine that these letters should have been worded by the deceased as submitted on behalf of the accused. She never knew with certainty that she was going to die shortly. The letters clearly spell out the beatings given to her, the cruelties inflicted on her and reference to the conduct of the family. The evidence has to be appreciated in its entirety. Neither the letters can be ignored nor the statements of PW1 and PW2. If the letters had made no reference to beatings, cruelty and ill-treatment meted out to the deceased and not demonstrating the grievance, apprehensions and fear that she was entertaining in her mind, but were letters simpliciter mentioning about her well being and that she and her in-laws were living happily without complaint against each other, the matter would have been different. In the judgment relied upon by the learned counsel appearing for the accused, it has specifically been recorded that the letters produced in those cases had clearly stated that relations between the parties were cordial and there was no reference to any alleged cruelty or harassment meted out to the deceased by any of the accused in that case. On the contrary, in the letters, it was specifically recorded that the deceased was happy with all the members of the family. The oral and documentary evidence in those cases had clearly shown that the deceased was never subjected to any cruelty or harassment. In those cases, there was no evidence of demand of dowry and cruelty to the deceased, which certainly is not the case here. In the case before us, there is definite ocular, expert and documentary evidence to show that the deceased died an unnatural death, she was subjected to cruelty and ill-treatment, there was demand of dowry of specific items like refrigerator, television and cooler and she died within seven years of her marriage. (Rajesh Bhatnagar vs. State of Uttarakhand; 2012(5) ALJ 79 (SC)

S.376—Rape—Testimony of prosecutrix can be sole basis of conviction and corroboration is necessary only when it is doubtful

Conviction can be based on sole testimony of the prosecutrix provided it lends assurance of her testimony. However, in case the Court has reason not to accept the version of prosecutrix on its face value, it may look for corroboration. In case the evidence is read in its totality and the story projected by the prosecutrix is found to b improbable, the prosecutrix case becomes liable to be rejected. (Narender Kumar vs. State (NCT of Delhi); 2012 Cr.L.J. 3033 (SC)

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Industrial Disputes Act

Ss. 2(3), 2a, 4k Industrial dispute – Reference – While making reference of Industrial dispute raised by employee it has to be examined whether employee was workman

In this case, court has observed that I now proceed to examine whether the order passed by the respondent No. 2 making reference satisfies that pre-requisites of a valid order of reference as expounded by the Apex Court in the case of Secretary. Indian Tea Association (supra) and Moolchand Kharati Ram Hospital K. Union (supra).

There is nothing in the impugned order which may show that the respondent No.2 before making the reference has either taken into consideration the relevant material on record which was before him in the form of objection filed by the petitioner in which the petitioner had categorically denied that the respondent No. 3 was a workman and the application of the respondent No. 3 filed by him under Section 2A of the Act in which he had described himself as Senior Cane Officer/Varistha Ganna Adhikari or he had formed any opinion with reference to the material before him that the respondent No. 3 was a workman as defined under Section 2(z) of the Act. In fact the respondent No. 2 in the impugned order of reference has neither examined the issue nor recorded any opinion in his order whether the respondent No. 3 is a workman and has proceeded to make the reference only on the basis of his satisfaction that an industrial dispute between the respondent No. 3 and the petitioner existed. The non-application of mind by the respondent No. 2 to the materials on record while making the reference is further evident from his own communication dated 31.12.2005 in which he had held that the respondent No. 3 was an officer of the petitioner’s company and hence, he cannot be a member of the workers union.

From the above discussion it is clear that the impugned order fails to fulfill the pre-requisites of a valid reference as the respondent No.2 in the impugned order has failed to record any satisfaction that the respondent No.3 is a workman and hence, the impugned order cannot be sustained and is liable to be set aside. (Triveni Engineering & Industries Ltd., Deoband, Saharanpur vs. State of U.P., and others; 2012(4) AWC 3904)

Sec. 6 H - Recovery of money due - Determination of

It is trite law as held by the Supreme Court that post award wages cannot be recovered under section 6H(1) more particularly when the amount claimed is disputed by the employer.

The apex court in Kays Construction Co. Pvt. Ltd., reported in 1965 SC 1488 made it clear that back wages as per the award is "money due" which could be recovered under section 6-H (1) of the Act even if the amount is not determined and only a mere arithmetical calculation is required to be made, but whether post award wages could be recovered under section 6-H (1) is a moot question which is required to be decided.

In the present case it will be seen that what the workman claims is post award wages. As already stated herein above, post award wage does not come under category of money due and consequently an application under section 6-H (1) cannot be filed. (Jai Prakash Ahirwar vs. State of U.P.; 2012 (2) ALJ 54)

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Interpretation of Statutes

Statute is Vernacular language - Interpretation of

The word ‘distance’ does not occur in the English translation of bye-law 34 placed by the appellants on record. The Hindi version of bye-law 34 quoted by the respondent No. 2 in their counter affidavit before the High Court does not have the word ‘????’; it contains the word ‘????’. The authentic version of bye-law 34 of the Bye-Laws has not been placed before us. In this view of the matter we do not think it is appropriate for us to place any interpretation on the language of byelaw 34 when the High Court has sent the matter back to Zila Panchayat, Muzaffarnagar for deciding the matter afresh after giving reasonable opportunity of hearing to all concerned. (Nafis Ahmad vs. State of U.P.; 2012(5) ALJ 293)

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Juvenile Justice (Care & Protection of Children) Act

Ss. 2(1), 7-A & 20 and Expln. thereto (as amended by Act 33 of 2006)—Retrospective effect—Juvenile under 2000 Act—Who is—Consideration of

Conviction of the petitioner under Ss. 396, 506, 341 and 379 r/w S. 120-B IPC was confirmed by the Supreme Court. The petitioner prayed that he was a juvenile at the alleged offence, for the first time before the Supreme Court. The benefit of juvenility was not claimed by the petitioner earlier. The petitioner was 16 years, 11 months and 21 days on the day of occurrence.

Amendment Act 33 of 2006 provided that the benefit of juvenility shall be extended even to a juvenile who had completed the age of the 18 years on 1.4.2001 and Act shall have retrospective effect. The claim of juvenility can be raised before any court at any stage, even after the final disposal of the case. Sections 20 and 7-A set out the procedure which the court is required to adopt, when such claim of juvenility is raised. The petitioner was a juvenile in terms of the 2000 Act because he had not completed 18 years of age and is entitled to get the benefit of provisions under Ss. 2(1), 7-A, 20 and 64 of the Act. The petitioner has already undergone 12 years in jail since then, which is more than the maximum period for which a juvenile may be confined to a special home. Under these circumstances, the petitioner is directed to be released from custody forthwith. (Amit Singh vs. State of Maharashtra; (2012) 2 SCC (Cri) 858)

Rule 12—Juvenility—Reliability of mark-sheet and/or school leaving certificate for determination of age of accused—Entry relating to date of birth entered in marksheet as well as school leaving certificate are valid proofs for determination of age

Entry relating to date of birth entered in the marksheet is one of the valid proofs of evidence for determination of age of an accused person. The school leaving certificate is also a valid proof in determining the age of the accused person. Further, the date of birth mentioned in the High Court marksheet produced by the appellant has duly been corroborated by the school leaving certificate of the appellant of Class X and has also been proved by the statement of the clerk of Nehru High School. The date of birth of the appellant has also been recorded as 18.6.1989 in the school leaving certificate issued by the Principal of Nehru Preparatory School, as well as the said date of birth mentioned in the school register of the said School at Sl. No. 1382 which have been proved by the statement of the Principal of that School recorded before the Board. (Shah Nawaz vs. State of U.P.; (2012) 2 SCC (Cri) 864)

R.12—Juvenility—Borderline cases—If two views may be possible on said evidence, court should lean in favour of holding accused to be a juvenile in borderline cases

In Rajinder Chandra vs. State of Chhattisgarh, (2002) 2 SCC 287, this Court once again considered the entry relating to the date of birth in the marksheet and concluded as under: (SCC pp. 289-90, para 5)

“5. It is true that the age of the accused is just on the border of sixteen years and on the date of the offence and his arrest he was less than 16 years by a few months only. In Arnit Das vs. State of Bihar, (2000) 5 SCC 488, this Court has, on a review of judicial opinion, held that while dealing with the question of determination of the age of the accused for the purpose of finding out whether he is a juvenile or not, a hyper technical approach should not be adopted while appreciating the evidence adduced on behalf of the accused in support of the plea that he was a juvenile and if two views may be possible on the said evidence, the Court should lean in favour of holding the accused to be a juvenile in borderline cases. The law, so laid down by this Court, squarely applies to the facts of the present case.”

In Arnit Das vs. State of Bihar, (2000) 5 SCC 488, this Court held that while dealing with the question of determination of the age of an accused, for the purpose of finding out whether he is a juvenile or not, a hyper technical approach should not be adopted while appreciating the evidence adduced on behalf of the accused in support of the plea that he is a juvenile and if two views may be possible on the same evidence, the court should lean in favour of holding the accused to be a juvenile in borderline cases. (Shah Nawaz vs. State of U.P.; (2012) 2 SCC (Cri) 864)

R. 12—Age—Certificate issued by school authorities—Validity of

We have already referred to the entry relating to the date of birth of the petitioner in the birth certificate (Annexure P-1), entry relating to his date of birth in the transfer certificate (Annexure P-2), the date of birth recorded in the marksheet issued by the Council for the Indian School Certificate Examinations. In all these documents, his date of birth has been recorded as 10.5.1982 and duly certified and authenticated by the authorities concerned. In a recent decision of this Court dated 5.8.2011 in Shah Nawaz vs. State of U.P., (2011) 13 SCC 751, while considering similar documents, namely, certificate issued by the school authorities and basing reliance on Rule 12 of the Rules held that all those documents are relevant and admissible in evidence. (Amit Singh vs. State of Maharashtra; (2012) 2 SCC (Cri) 858)

R. 98 r/w S. 20 of 2000 Act (as amended in 2006)—Scope of—State Government or Board even after disposal of cases may review case of a juvenile and pass order u/s. 64 of 2000 Act for immediate release of juvenile whose period of detention had exceeded maximum period provided in S. 15 i.e. 3 years

Sec. 7-A that the claim of juvenility can be raised before any court at any stage, even after final disposal of the case and sets out the procedure which the court is required to adopt, when such claim of juvenility is raised. Apart from the aforesaid provisions of the Act as amended, and the Juvenile Justice (Care and Protection of Children) Rules, 2007 (in short “the Rules”), Rule, 98, in particular, has to be read along with Section 20 of the Act as amended by the Amendment Act, 2006 which provides that even after disposal of cases of juveniles in conflict with law, the State Government or the Board could, either suo motu or on an application made for the purpose, review the case of a juvenile, determine the juvenility and pass an appropriate order under Section 64 of the Act for immediate release of the juvenile whose period of detention had exceeded the maximum period provided in Sec. 15 of the Act i.e. 3 years. All the above relevant provisions including the amended provisions of the Act and the Rules have been elaborately considered by this Court in Hari Ram. (Amit Singh vs. State of Maharashtra; (2012) 2 SCC (Cri) 858)

Benefit under – Plea of juvenility can be raised for first time before S.C. – Availability of

Once it was held that accused was child as date of offence, he must be given benefit of Juvenile Act. Offence took place on 7.4.99 – K was convicted by trial court on 7.9.2000 – Juvenile Act came into force on 1.4.2001 – Appeal of K was decided by High Court on 11.7.2006 – Plea of juvenility was not raised before High Court – High Court confirmed sentence which it could not have done – As K had already undergone more than 9 years of imprisonment (more than maximum punishment under Juvenile Act) order of High Court, regarding sentence of life imprisonment, quashed – Accused K also not to incur any disqualification because of this order. (Kalu alias Amit Vs. State of Haryana; (2012) 8 SCC 34)

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Land Acquisition Act

Section 5A – Land Acquisition Act, 1894 - Sections 5-A and 6 - Land Acquisition - Objection with regard to public purpose - Section 5 -A(I) gives right to any person interested in any land notified under section 4(1) as being needed or likely to be needed for a public purpose to raise objections to acquisition of the land

Section 5-A(l) of the L.A. Act gives a right to any person interested in any land which has been notified under section 4(1) as being needed or likely to be needed for a public purpose to raise objections to the acquisition of the said land. Sub-section (2) of section 5-A requires the Collector to give the objector an opportunity of being heard in person or by any person authorized by him in this behalf. After hearing the objections, the Collector can, if he thinks it necessary, make further inquiry. Thereafter, he has to make a report to the appropriate Government containing his recommendations on the objections together with the record of the proceedings held by him for the decision of the appropriate Government and the decision of the appropriate Government on the objections shall be final. It must be borne in mind that the proceedings under the L.A. Act are based on the principle of eminent domain and section 5-A is the only protection available to a person whose lands are sought to be acquired. It is a minimal safeguard afforded to him by law to protect himself from arbitrary acquisition by pointing out to the concerned authority, inter alia, that the important ingredient namely 'public purpose' is absent in the proposed acquisition or the Acquisition is mala fide. The L.A. Act being an ex-proprietary legislation, its provisions will have to be strictly construed. (M/s. Kamal Trading Private Ltd. (Now known as Manav Investment & Trading Co. Ltd.) v. State of West Bengal & others; 2012(115) RD 821 (SC)

Held- that the acquisition of the Appellant's land is vitiated due to colourable exercise of power by the State Government. No doubt, the notifications issued Under Sections 4 and 6 of the Act recite that the land was acquired for a public purpose, namely, development of Sector 36, Rohtak, but the real object of the acquisition was to benefit a colonizer.

The State Government had misused the provisions of Sections 4 and 6 of the Act for making land available to a private developer. If the land was to be acquired for a company, then the official Respondents were bound to comply with the provisions contained in Chapter 7 of the Act, which was admittedly not done. (Patasi Devi Vs. State of Haryana and Ors.; 2012 (5) AWC 5324 (SC)

Sec. 23 - Acquisition compensation - Determination of - Factors to be considered

While fixing market value of the acquired land, the Land Acquisition Collector is required to keep in mind the following factors:-

(i) Existing geographical situation of the land

(ii) Existing use of the Land

(iii) Already available advantages, like proximity to national or State High Way or road and/or developed area

(iv) Market value of other land situated in the same locality/village/area adjacent or very near the acquired land.

(Sabhia Mohammed Yusuf Abdul Hamid Mulla vs. Special Land Acquisition Officer; AIR 2012 SC 2709)

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Limitation Act

S. 5 - Law of limitation binds everybody including the Government

It is not in dispute that the person(s) concerned were well aware or conversant with the issues involved including the prescribed period of limitation for taking up the matter by way of filing a special leave petition in this Court. They cannot claim that they have a separate period of limitation when the Department was possessed with competent persons familiar with Court proceedings. In the absence of plausible and acceptable explanation, we are posing a question why the delay is to be condoned mechanically merely because the Government or a wing of the Government is a party before us. Though we are conscious of the fact that in a matter of condonation of delay when there was no gross negligence or deliberate inaction or lack of bonafide, a liberal concession has to be adopted to advance substantial justice, we are of the view that in the facts and circumstances, the Department cannot take advantage of various earlier decisions. The claim on account of impersonal machinery and inherited bureaucratic methodology of making several notes cannot be accepted in view of the modern technologies being used and available. The law of limitation undoubtedly binds everybody including the Government.

In view of Court, it is the right time to inform all the government bodies, their agencies and instrumentalities that unless they have reasonable and acceptable explanation for the delay and there was bonafide effort, there is no need to accept the usual explanation that the file was kept pending for several months/ years due to considerable degree of procedural red-tape in the process. The government departments are under a special obligation to ensure that they perform their duties with diligence and commitment. Condonation of delay is an exception and should not be used as an anticipated benefit for Government departments. The law shelters everyone under the same light and should not be swirled for the benefit of a few. Considering the fact that there was no proper explanation offered by the Department for the delay except mentioning of various dates, according to us, the Department has miserably failed to give any acceptable and cogent reasons sufficient to condone such a huge delay. Accordingly, the appeals are liable to be dismissed on the ground of delay. (Office of Chief Post Master General v. Living Mediae India Ltd.; 2012 (116) RD 167)

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Motor Vehicles Act, 1988

S. 147(1)(b)(i) - Motor Insurance – Goods vehicle Gratuitous passenger - Liability of Insurance Company - Would not be liable for death of a gratuitous passenger in a truck, owner is alone liable

In this case the appeal was by the owner and driver of the truck which was involved in an accident in a collision with a bus belonging to U.P. Roadways. The deceased was a gratuitous passenger in the truck. The insurance company of the truck was, therefore, discharged from liability and the owner of the vehicle alone was found responsible. I cannot fault with the liability cast on the owner of the truck. (Suckhbir Singh and another v. Ram Mehar and others; 2012 ACJ 1824)

S. 147(o) – Motor Insurance – Private Vehicle - Risk of Driver and passengers in a private vehicle may be statutorily cover

Court has held that it would be good idea to statutorily require insurance of the driver and the passengers in a private vehicle as is the case for covering the third party risk. The Central Government may consider suitability/feasibility of amending Chapter XI of the Motor Vehicles Act, 1988. (New India Assurance Co. Ltd. v. Uma Devi and others; 2012 ACJ 1917)

Ss. 149, 163A - Liability of insurer – In terms of policy, insurer undertook to indemnify owner in case vehicle is used by third person with permission of owner meets with accident and third party claim arises out of such accident - This undertaking of company to indemnify would not mean that even for death of such rider or driver, company would be liable to pay compensation

In terms of the clause in the insurance policy the insurance company undertook to indemnify the owner, in case, the vehicle which met with an accident was driven by a person with the consent of the owner. In other words, it meant in case where the rider or driver of a vehicle with the permission of the owner happened to use vehicle, which met with an accident, in that situation the company would still indemnify the owner. This undertaking of the company to indemnify the owner cannot and would not mean that even for the death of such rider or driver, the company would be liable to pay compensation. In other words, what it says is, if a vehicle handed over to a person by consent of the owner results in an accident, then the claims of the 3^rd parties against the owner would be indemnified by the insurer. Only in case where the coverage of rider is included in the policy or where the owner of the policy is covered and the permitted rider takes the position of an owner by virtue of terms of contract then alone the insurer would be liable to pay compensation.

In the present case it is not the contention of the respondents/claimants that the owner of the motor cycle had paid premium covering the personal accident coverage and therefore, by virtue of terms of policy (Section II), the Insurance Company would be liable to pay the compensation.

In a case where the rider or driver of a vehicle with the permission or the owner happens to use vehicle, which met with an accident, in that situation the company would still indemnify the owner cannot and would don’t mean that even for the death of such rider or driver, the company would be liable to pay compensation. In other words, what it says is, if a vehicle handed over to a person by consent of the owner results in an accident, then the claims of the 3^rd parties against the owner would be indemnified by the insurer.

If the rider was not covered, question of indemnifying the owner would not arise. Only in a case where the coverage of rider is included in the policy or where the owner of the policy is covered and the permitted rider takes the position of an owner by virtue of terms of contract then alone the insurer would be liable to pay compensation. (Oriental Insurance Co. Ltd. Lochi v. Joseph V.V. alias Johny & Ors.; AIR 2012 Kerala 116)

S. 163-A r/w 2^nd Second schedule – Interpretation of the second schedule and possible methods of ascertainment of compensation enumerated

Problems do not end there. What is the relevant amount of compensation payable by resort to the Table/Chart? This has to be ascertained. Annual income with the help of clause 6 of the Second Schedule, we have already concluded, can be assumed to be Rs. 15,000. Surprisingly, of all the 13 columns available in the Table, there is no column referring to that figure of Rs. 15,000. How then is the relevant figure to be ascertained? Two methods appear to be possible. The first is to reckon the entry under column Rs. 3,000 as the compensation payable in respect of all persons belonging to the income group up to Rs. 3,000. So reckoned, the entry in 13 columns will have to be read as indicating the range as shown below:

1	2	3	4	5
Up to Rs. 3,000	Above Rs. 3,000 up to Rs. 4,200	Above Rs. 4,200 up to Rs. 5,400	…	Above Rs. 36,000 up to Rs. 40,000

There is another possible method also for ascertaining the compensation. As the amounts payable for various incomes have been specified in the columns, it is possible to infer the rationale and then ascertain the compensation payable for a particular income. So reckoned, for a deceased having annual income of Rs. 15,000, the average of the amounts prescribed under the column for Rs. 12,000 and Rs. 18,000 can be taken. The average can be ascertained and Rs. 3,00,000 can be reckoned as the compensation payable for persons earning the income Rs. 15,000 (Rs. 12,000 + Rs. 18,000)/2, i.e., (Rs.2,40,000 + Rs. 3,60,000) 12 = Rs. 3,00,000, for a person of income Rs. 15,000.

Both methods do not seem to be unjust or unreasonable. But going by the rationale behind prescribing the Schedule we feel that the former approach will be more sound and reasonable coming to the question of income also, it would be absolutely reasonable to assume that the legislature, in its anxiety to eliminate unnecessary and avoidable litigation on the quantum of actual income, wanted to prescribe ranges so that a lot of unnecessary dispute about the precise and actual income can be avoided. That is why the same amount of compensation is prescribed for all persons earning up to an amount of Rs. 3,000. All those belonging to the range of income up to Rs. 3,000 must get the same amount of compensation. All those belonging to the income above Rs. 3,000 up to Rs. 4,200 shall also get the same compensation. For those having income above Rs. 4,200 up to Rs. 5,400 the same compensation shall be payable. What we are trying to assert is that when the legislature prescribed Rs. 3,000, Rs. 4,200, Rs. 5,400, Rs. 6,600, etc., as the annual income, the legislature was certainly prescribing only the range of income and not the precise income. If such a rigid view were taken, for a person getting Rs. 3,001 as annual income, section 163-A of the Motor Vehicles Act cannot operate at all as there is no entry relating to his income. That cannot obviously be the intention. When the legislature prescribed amounts under various columns specifying the income, it could only have meant that those getting income up to the figure specified will all get the same compensation. We do note that the anxiety of the legislature to avoid unnecessary and needless litigation can be clearly deciphered when we reckon the income as ranges of income and not any specified income. So understood, we accept that it will be appropriate to reckon the same compensation to be payable for all belonging to a particular income group. (United India Insurance Co. Ltd. V. Madhavan and others; 2012 ACJ 1986)

S. 163-A r/w Second Schedule - Structured formula - Whether in a claim u/s 163-A compensation should be awarded strictly in accordance with the second schedule - Held, “Yes”

Bajaj Allian: General Ins. Co. Ltd. Li't£vati Devi, 2012 ACJ 1251 (Delhi), this court while dealing with section 163-A of the Motor Vehicles Act, 1988, has held as under:

"(3) The question whether the compensation in a petition under section 163-A of the Motor Vehicles Act ('the Act') can be claimed and awarded strictly in accordance with the structured formula given in the Second Schedule has vexed the courts in the country. The High Courts and the Apex Court have been requesting the legislature to come out with an amendment to the Second Schedule which was incorporated way back in the year 1994 so that adequate and just compensation may be awarded to the persons in the lower income bracket.

In Oriental Insurance Co. Ltd. v. Pataso, M.A.C. Appeal No. 962 of 2005; decided on 1.9.2008, it was held that considering the inflation and depreciation in the value of the rupee, there was no justification to restrict the award of general damages to the Second Schedule under section 163-A of the Act. (Oriental Insurance Co. Ltd. V. Usha and other; 2012 ACJ 1754)

S. 165 – Claim Tribunal – Jurisdiction - Consideration of

The appeal is at the instance of the owner-insured making a claim for damage to the vehicle against his insurer. It was stated in the petition that there had been a settlement but it was contended by the owner that the amount had not been paid. If the amount had not been paid, the owner’ right of enforcement will be available in a civil court or in the contest of the provision under Consumer Protection Act, it could be complained of a deficiency of service and made the insurer liable for damages. There is no provision in law for an insured to make a claim against his own insurer in an application filed under section 165 or through an adjudication through section 168. The Claims Tribunal has power to dispose of a claim for compensation arising out of damage to any property of a third party in a motor accident a claim for damages for his own vehicle does not lie before a Tribunal. (Tek Ram v. Narinder Singh and others; 2012 ACJ 2016)

Fatal accident – Principles of assessment – Choice of Multiplier - whether multiplier of “17” based on age of deceased be applied - ‘Held, “Yes”, the age of depend on has no nexus with computation of compensation

Deceased son of the appellant Nos. 1 and 2, was going to Thanod on 20.7.2008 by Maruti Swift car bearing registration No. CG 04-HA 6905 from Naharpara in Raipur, Chhattisgarh. While he was coming back at about 4.30 p.m. near Thanod, one Scorpio car bearing registration no. CG 04-HA 5372 coming rashly and negligently form Abhanpur dashed against Maruti Swift car. Due to the said accident, Ritesh Bhanu Shali and on Jaspreet died on the spot and another Shivam received injuries. The appellant No. 1, is the father appellant No. 2, Sarlaben, is the mother and appellant No. 3 Mamta Bhanu Shali, is the sister of the deceased. Claiming to be dependent on the deceased they filed Motor Accident Claim Case No 80 of 2008 before the Tribunal under Section 166 of the Motor Vehicles Act, 1988 (for short, ‘the Act’) for award of compensation to the tune of Rs. 25,50,000

The non-applicants, owner of the car, driver and National Insurance Co. Ltd. Appeared and defended their case.

In support of the claim application, the appellant No. 1 in his statement stated that at the time of accident his son Reitesh Bhanu Shali was 26 years old, as his date of birth is 24.8.1982 and he was doing the business of real estate and used to sell handset mobiles and he also took tuition and used to earn Rs. 10,000 per month. The deceased Ritesh Bhanu Shali also used to file income tax return. The appellant No. 1 Armit Bhanu Shali, AW 1, stated that both the appellants, father and mother, were not earning and appellant none. 3 was unmarried at the time of accident and was dependent on the deceased. It is stated that Mamta Bhanu Shali has also got married.

The Tribunal on appreciation of oral evidence and analysis of documentary evidence set the issue No. 1 in the affirmative and held that the accident was caused due to rash and negligent driving by the driver of Scorpio car.

The Tribunal taking into consideration the fact that the deceased was an unmarried young man of 26 years at the time of accident and his income was Rs. 99,000 per annum, deducted 50 per cent of the income and applying the multiplier of 17 as per the decision of this court in Sarla Verma v. Delhi Transport Corporation, 2009 ACJ 1298 (SC), held that the appellants are entitled to get compensation of Rs. 8,66,000.

The appellants challenged the award of claims Tribunal by filing Miscellaneous Appeal (C) No. 765 of 2010 before Chhattisgarh High Court for enhancement of compensation. National Insurance Co. Ltd. Also challenged the same award by filing miscellaneous Appeal (C) No. 515 of 2010 before Chhattisgarh High Court. Therefore, the appellants withdrew their Miscellaneous Appeal (C)No 765 of 2010 on 2.8.2010 with a liberty to file the cross- objection for enhancement of compensation in Miscellaneous Appeal (C) No. 515 of 2010. the permission was granted. The appellants filed cross-objection in Miscellaneous Appeal (C) No. 515 of 2010 for enhancement of compensation.

The High Court by impugned order dated 12.11.2010 reduced the compensation to Rs. 6,68,000 by applying the multiplier of 13 …. Appeal filed in SC.

The selection of multiplier is based on the age of the deceased and not on the basis of age of dependant. There may be a number of dependants of the deceased whose age may be different and, therefore, the age of dependants has not nexus with the computation of compensation.

In the case of Sarla Verma, 2009 ACJ 1298 (SC), this court held that multiplier to be used should be as mentioned in column (4) of the Table of the said judgment which starts with an operative multiplier of 18. as the age of the deceased at the time of death was 26 years, multiplier of 17 ought to have been applied. The Tribunal taking into consideration the age of the deceased rightly applied the multiplier of 17 but the High Court committed a serious error by not giving the benefit of multiplier of 17 and bringing it down to the multiplier of 13. (Amrit Bhanu shali and others v. National Insurance Co. Ltd. and others; 2012 ACJ 2002)

Fatal Accident – Principles of assessment – Future prospect –Consideration of

As far as the future prospects are concerned, in the case of Sarla Verma v. Delhi Transport Corporation, 2009 ACJ 1298(SC), the Hon’ble Supreme Court has held that the future prospects should be considered only in cases of government employee, but should not be considered in a case of self-employed person, however, the Apex Court has not placed a blanket ban on consideration of the future prospects of a person who is self-employed. After all, the Apex Court is of the opinion that in exceptional cases future prospects can be taken into account.

If this be the guiding principle in a case of compensation, obviously future prospects of increase in the income of an advocate would have to be kept in mind. Undoubtedly, at the beginning of his practice, a lawyer has to struggle to establish his reputation and to increase his practice. The professional life of a lawyer, unlike case of government servants, is a life of hardship and of struggle. The fruits of his labour come to him during the course of time. (Sangeeta Parihar v. Suraj Parihar & others; 2012 ACJ 1725)

Ss. 166, 168, 173, 168-A and Sch. II – Appropriate multiplier – Choice of

The husband of the first appellant died in an accident on 4.1.1995 when he was returning from the plant site on a scooter bearing Registration No. or 06 7703 around 6.30 a.m. near NALCO Nagar on NH 42 at a place called Smelter Chhak, due to rash and negligent driving of the driver of the truck bearing Registration No. ORA 4241. The appellants being the wife and children of the deceased preferred the claim before the Motor Accidents Claims Tribunal in MAC Case No. 21 of 1995. The Tribunal, after analyzing the entire evidence placed before it, awarded a sum of Rs. 10,08,000 as compensation along with interest @ 7% per annum with effect from 3.2.1995 to 22.8.1995 and again from 16.1.2007 till the payment within one month.

While the appellants were aggrieved insofar as the Tribunal applied the multiplier 12 instead of 17, having regard to the fact that the deceased at the time of his death was 35 years old as well as non-grant of interest for certain period, the first respondent was aggrieved by the very award of compensation itself. The High Court while disposing of the appeal reduced the compensation awarded by the Tribunal and also the rate of interest.

The impugned order of the High Court being a non-speaking order calls for interference in these appeals. Therefore, the only question to be examined is as to what is the multiplier to be applied, which ground though raised before the High Court, we find that the High Court has not ventured to answer the said question.

This question has time and again been considered by this Court. In a recent decision of this Court, namely, Santosh Devi V. National Insurance Co. Ltd. (2012) 6 SCC 421, to which one of us (Hon’ble G.S. Singhvi, J.) was a party, after referring to the decision in Sarla Verma V. DTC, (2009) 6 SCC 121, wherein the formula under different headings including the one relating to selection of multiplier was quoted with approval. The said formula has been set out in Sarla Verma in para 42 which read as under: (p 140)

“42. We therefore hold that the multiplier to be used should be as mentioned in Column 4 of the table above [prepared by applying Susamma Thomas (Kerala SRTC V. Susamma Thomas (1994) 2 SCC 176, Trilok Chandra (UP SRTC v. Trilok Chandra (1996) 4 SCC 362 and Charlie (New India Assurance Co. Ltd. V. Charlie, (2005) 10 SCC 720], which starts with an operative multiplier of 18 (for the ge groups of 15 to 20 and 21 to 25 years), reduced by one unit for every five years, that is, M-17 for 26 to 30 years, M-16 for 31 to 35 years, M-15 for 36 to 40 years, M-14 for 41 to 45 years, and M-13 for 46 to 50 years, then reduced by two units for every five years, that is, M-11 for 51 to 55 years, M-9 for 56 to 60 years, M-7 for 61 to 65 years and M-5 for 66 to 70 years.”

The said part of the formula was applied in the said reported decision Santosh Devi V. National Insurance Co. Ltd. Referred to above while working out the compensation payable to the claimants therein. We, therefore, follow the above referred decisions and when the said formula is applied, since the deceased was stated to be 35 years old at the time of his death, the multiplier would be 16 which has to be applieid for calculating the compensation. The Tribunal after examining the materials before it, found that after deducting 1/3^rd of personal expenses, the monthly income of the deceased was Rs. 7000 and the net contribution to the family was ascertained at Rs. 84,000 per annum,. Applying the multiplier of 16, the compensation works out to Rs. 13,44,000. Therefore, while setting aside the order of the High Court insofar as it reduced the quantum of compensation, we modify the compensation payable to the appellants in a sum of Rs. 13,44,000 (84,000 x 16). The said sum of Rs. 13,44,000 should carry interest @ 7% per annum from the date of application till the date of realisation. (Rebeka Minz and Others Vs. Divisional Manager, United India Insurance Company Limited and another; (2012) 8 SCC 145)

Ss. 166 and 163-A - Conversion of - Whether claimant has a right to convert his claim filed u/s/. 166 to one us/s/ 163-A – Held “Yes”

The right of the claimant to request that his claim lodged initially under section 166 of the Motor Vehicles Act may be converted and treated as one under section 163-A of the Motor Vehicles Act cannot possibly be doubted. If there be any doubt on that aspect, the last trace of such doubt must be held to have been set at rest by the recent decision of the Supreme Court in Oriental Insurance Co. Ltd. v. Dhanbai Kanji Gadhvi, 2011 ACJ 721 (SC). That decision is authority for the proposition that until an award is passed either under section 166 or under section 163-A of the Motor Vehicles Act, the claimant has the right to request that his claim may be considered under either of the two sections. That decision refers to the earlier decision in Deepal Girishbhai Soni v. United India Insurance Co. Ltd., 2004 ACJ 934 (SC). It is clarified that Deepal Girishbhai Soni does not fetter the option of the claimant who chooses to press the claim either under section 166 or under section 163-A of the Motor Vehicles Act if the claim under the other section has not been decided and ordered earlier.

Therefore, it is crystal clear that the exercise of option by claimants to reckon their claim as one under section 163-A of the Motor Vehicles Act is absolutely justified. That conversion of the claim cannot possibly be faulted. (United India Insurance Co. Ltd. V. Madhavan and others; 2012 ACJ 1986)

Ss. 166 and 168 – Fatal accident – Quantum of compensation – Consideration of

Shri Swaran Singh (the appellant’s husband) died in a road accident when the Maruti car in which he was travelling with Varinder Singh (husband of Respondent 2 and the father of Respondents 3 and 4) went out of control. Varinder Singh, who was driving the vehicle also suffered multiple injuries and died on the spot. The appellant and other legal representatives of Swaran Singh filed a petition under Section 166 of the Motor Vehicles Act. 1988 (for short “the Act”) for award of compensation to the tune of Rs. 4 lakhs. They pleaded that the accident was caused due rash and negligent driving of the Maruti care by VArinder Singh; that at the time of his death, the age of the deceased was about 45 years and that he was earning Rs. 5000 per month by running a mil dairy and doing agriculture. The legal representatives of Varinder Singh denied that the accident had occurred due to rash and negligent driving of the Maruti car.

In the written statement filed on behalf of Respondent 1, it was pleaded that the claim petition was not maintainable because the deceased, who was travelling in the car cannot be treated as a third party and that the person driving the vehicle did not have valid driving licence. Respondent 1 also controverted the claimant’s assertion about the income of Swaran Singh.

On the pleadings of the parties the Tribunal framed the following issues:

“(1) Whether the death of Swaran Singh not amounting to culpable homicide took place on account of the rash and negligent driving of Maruti Car No. PB 035A 0090 driven by Varinder Singh?

(2) To what amount of compensation the applicants are entitled? If so, from whom?

(3) Relief ”

After analyzing the evidence produced by the parties, the Tribunal decided Issue 1 in the affirmative and held that the accident was caused due to rash and negligent driving of Maruti care by Varinder Singh.

While dealing with Issue 2, the Tribunal adverted to the statement made by the appellant in cross-examination that the deceased did not own any agricultural land and that he was cultivating land on lease basis and proceeded to determine the amount of compensation assuming his income as Rs. 1500 per month. The Tribunal was also of the view that two sons of the appellant, namely, Sulakhan Singh and Surjit Singh cannot be treated as dependants of the deceased because their age was 26 years and 23 years respectively. The Tribunal deducted Rs. 500 towards personal expenses of the deceased and held that dependency of the appellant and other family members would be Rs. 1000 per month. The Tribunal then applied the multiplier of 11 and declared that the claimants are entitled to compensation of Rs. 1,32,000 with interest at the rate of 12% per annum from the date of application.

The High Court relied upon the judgment of this Court in Sarla Verma v. DTC, (2009) 6 SCC 121, applied the multiplier of 14 and held that the claimants are entitled to total compensation of Rs. 1,77,500 with interest at the rate of 7% per annum on the enhanced amount from the date of appeal till realization.

The courts below, in the present case, were totally oblivious of the hard realities of life. It will be impossible from a person whose monthly income is Rs. 1500 to spend 1/3 on himself 2/3^rd for the family consisting of five persons,. Ordinarily, such a person would, at best, spend 1/10 of his income on himself or use that amount as personal expenses and leave the rest for his family. The Tribunal’s observation that the two sons of the appellant cannot be treated as dependent on their father because they were not minor is neither here not there. In the cross-examination of the appellant wife of the deceased, o question was put to her about the source of sustenance of her two sons. Therefore, there was no reason for the Tribunal to assume that the sons who had become major cannot longer be regarded dependent on the deceased.

In the result, the appeal is allowed, the impugned judgment as also the award of the Tribunal are set aside and it is declared that the claimants shall be entitled to compensation of Rs. 2, 94,840 [Rs. 1500+30% of Rs. 1500 = Rs. 1950 less 1/10^th towards personal expenses = Rs. 1755x12x14=Rs. 2,94,840]. The claimants shall also be entitled to Rs. 5000 for transportation of the body, Rs. 10,000 as funeral expenses and Rs. 10,000 in lieu of loss of consortium. Thus, the total amount payable to the claimants will be Rs. 3,19,840-Rs. 1,77,500) shall carry interest of 7% from the date of application till realization. (Santosh Devi Vs. National Insurance Co. Limited & Others; (2012) 6 SCC 421)

Ss. 166 and 168 – Compensation for injuries sustained in motor accident – When offending vehicle being operated on rout without route permit – Effect of

The case set-up in the claim petition was that on 20th November, 2008 at about 11 a.m., a Truck bearing Registration No. U.P.- 17C 5271 (hereinafter also referred to as “the vehicle in question”) being driven by its driver rashly and negligently, hit the motor-cycle of the claimant- respondent No. 1 near New Sabji Mandi on G.T. Road under the Police Station-Dadri, Gautam Buddh Nagar, as a result of which, the claiment-respondent No. 1 sustained serious injuries.

The respondent No. 2 was the driver of the vehicle in question and the respondent No. 3 was the owner of the vehicle in question. The appellant-insurance company was the insurer of the vehicle in question.

Having considered the material on record, the Tribunal recorded its findings on various issues.

The Tribunal, inter alia, held that the accident in question took place on account of rash and negligent driving by the driver of the vehicle in question (i.e., Truck) resulting in serious injuries to the claimant-respondent No. 1.

The Tribunal further held that there was no contributory negligence on the part of the claimant-respondent No. 1.

The Tribunal further held that the driver of the vehicle in question was having valid and effective driving licence at the time of the accident.

The Tribunal further held that the vehicle in question was insured with the appellant-insurance company on the date and at the time of the accident.

The Tribunal further held that at the time of the accident, there was no Route Permit in respect of the vehicle in question for plying on the road on which the accident took place.

In view of the above discussion, we are of the opinion that the Tribunal did not commit any illegality in directing the appellant-insurance company to make deposit of the amount of compensation, and recover the same from the insured person, i.e., the owner of the vehicle in question-respondent No. 3 herein.

After making deposit of the amount awarded under the impugned award, it will be open to the appellant-insurance company to initiate appropriate proceedings for recovery of the amount from the owner of the aforesaid vehicle in question (respondent No. 3 herein). (New India Assurance Co. Ltd. vs. Ghulfam Saifi & others; 2012(4) AWC 3684)

S. 166 (1) (c) – Legal representative – Married sister – Whether married sister of deceased is entitled to any share in compensation along with her parents held, “No”

Admittedly both the parents, appellant No. 1 Amrit Bhanu Shali (Father) and Appellant No. 2 Sarlaben (mother), have been held to be dependants of deceased Ritesh Bhanu Shali and, therefore, the Tribunal held that the appellant No. 1 and the appellant No. 2 have the right to get the compensation. On the date of the accident the appellant No. 3, Mamta, was not married but by the time the case was heard by the Tribunal the appellant No. 3, Mamta, had already been married. In these circumstances, she is not found to be dependent upon the deceased. Thus, both the parents being dependants, that is, father and the mother, the Tribunal rightly restricted the personal and living expenses of the deceased to 50 per cent and contribution to the family was required to be taken as 50 per cent as pert the decision of this court in the case of Sarla Verma, 2009 ACJ 1298 (SC). (Amrit Bhanu Shali & others v. National Insurance Co. Ltd. & others; 2012 ACJ 2002)

S. 166(1)(c) - Legal Representative – Married daughter – Whether daughter who got married during pendency of claim proceedings is entitled to share in compensation – Held “Yes”

In the case of Manjuri Bera v. Oriental Insurance Co. Ltd., 2007 ACJ 1279 (SC), the Hon’ble Apex Court has clearly held that a married daughter of the deceased would be entitled to maintain a claim petition as she is a beneficiary of the estate. Moreover, even if the claimants were not dependent on the deceased, being a legal representative, she will be entitled to compensation. Bhawna Patel being unmarried daughter at the time of the accident was naturally dependent both financially and emotionally on her father. Merely because she has been married during the pendency of the proceedings, it would not disentitle her form compensation. (Sangeeta Parihar v. Suraj Parihar & others; 2012 ACJ 1725)

S. 169 and 173 - UP Motor Vehicles Rules (1998) R. 221 - Ex-parte order by tribunal - Setting aside of- Rejection - Appeal will not be against order of rejection under O. 43 of CPC and appeal is also not maintainable under S. 173 of above Act - Since it is interlocutory order and not award

Motor Vehicles Act, 1988 is a self contained Code in itself. Section 169 of the Act provides that the tribunal shall have all the powers of a Civil Court for the purposes of taking evidence on oath, for enforcing the attendance of witnesses, for compelling the discovery and production of documents and material objects and for such other purposes as may be prescribed. The other purposes which have been prescribed are enumerated under Rule 221 of the U.P. Motor Vehicles Rules, 1998. The said Rule provides for the applicability of the provisions of Order XLIII CPC. Thus, though an application under Order IX Rule 13 CPC for setting aside ex-parte award of the tribunal is maintainable but as Order XLIII Rule 1 (d) is not applicable, no appeal would lie against any order passed on such an application. Section 173 of the Act provides for an appeal against the award of the tribunal. The order rejecting or allowing an application under Order IX Rule 13 CPC would only be an interlocutory order and not an award. Therefore, it is not amenable to appeal under Section 173 of the Act. (Shahazdey Khan vs. Union of India; 2012 (5) ALJ 63)

S. 169 (1) – Claim Tribunal – Procedure and powers – Consideration of

The practice of summoning doctors even for merely marking the MLR reports must be stopped. It must be remembered that the procedure under the Motor Vehicles Act is summary in character and documents which are maintained in the government hospitals in the regular course of business require no more proof and a mere copy produced at the trial shall be received as public documents satisfying the requirements under section 76 of the Indian Evidence Act. The summoning of the documents from lawful custody or copy of the document duly authenticated by the seal of the hospital which has issued the MLR must themselves be taken as sufficient proof for the same and the procedures that go to prolong the proceedings or delay them must be immediately curtailed by the Tribunals.

Even as regards the examination of doctors, it should be confined only to securing appropriate proof of disability and in special circumstances where there is a prolonged treatment or a requirement for a continuous treatment even beyond the period of trial, the attempt of the Tribunal must be to elicit from the doctors the prognosis for cure and the likely expenses that may have to be incurred in future. With a view to devise a procedure adopted in the manner of assigning dates for doctors and the need to save time for professionals like doctors, they must stay confined to what are most essential features to assist the court to understand the nature of injuries and assess disability, if any, to the claimant. They shall not be merely called to the courts for exhibiting some documents like MLR, period of treatment, etc. A hospital document produced by a party which is duly authenticated must be taken as sufficient proof of the documents themselves and the requirement to produce the doctor for mere production of hospital documents must be immediately given up.

Some directions as regards the procedure become necessary only because it is a recurrent theme in our Tribunals that they reject the medical bills or keep out of reckoning the hospital records only because either the chemist is not examined or the doctor is not before the court to speak about the hospital records. The presence of doctors or the chemists must be confined only to extraordinary situations where the documents themselves are seriously in doubt. (Parsanni v. Sube Singh and another; 2012 ACJ 1847)

S. 173 (1) – Appeal – Dismissal in default whether appeal of claimant for enhancement of compensation should be dismissed in default for wait of representation Held, “No”, it may be disposal of a merit

In this case court observed that there is no representation for the appellant when the matter is called. The case is of the year 1991 and I do not think it is possible to adjourn the case to await the presence of the counsel or dismiss it for default and I proceed to dispose of the case on merits. (Sarwan Singh v. Palwinder Singh & others; 2012 ACJ 1823)

S. 173 (1) – C.P.C., O. 41, R. 33 – Appeal for just compensation – Law postulates determination of just compensation

This court in the case of Kunibala Sahoo v. Jagmohan Majhi, 2011 (1) ILR 115 (Orissa), held as follows:

“Section 168 of the Motor Vehicles Act deals with award of Claims Tribunal. The said section empowers the Claims Tribunal to determine the amount of compensation which appears to it to be just. Therefore, the Tribunal is duty-bound to determine the just compensation under section 168 of the Motor Vehicles Act in the given circumstances in a particular case. There is no restriction that the compensation could be awarded only up to the amount claimed by the claimants. This being the intention of the legislature, the determination of just compensation as required under section 168 of the Motor Vehicles Act is nothing to do with the amount of compensation claimed by the claimants. Amount of just compensation determinable under section 168 of the Motor Vehicles Act may be less or more than the amount of compensation claimed by the claimant depending upon the facts and circumstances of a particular case. In the case of Nagappa v. Gurudayal Singh, 2003 ACJ 12 (SC), the Supreme Court held that under the provisions of Motor Vehicles Act, 1988, there is no restriction that compensation could be awarded only up to the amount claimed by the claimants. In an appropriate case where from the evidence brought on record if the Tribunal/court considers that the claimant is entitled to get more compensation than the amount claimed, the Tribunal may pass such award. Only embargo is-it should be 'just' compensation, that is to say, it should be neither arbitrary, fanciful nor unjustifiable from the evidence. This would be clear by reference to the relevant provisions of the Motor Vehicles Act. This court in Mulla Md. Abdul Wahid v. Abdul Rahim, 1994 ACJ 348 (Orissa), held that the Tribunal has the duty to determine the amount of compensation which appears to it to be just. The expression 'just compensation' would obviously mean what is reasonable, moderate and fair and awardable in the proved circumstances of a particular case and the Tribunal has the power to award compensation more than the amount claimed by the claimants."

Law postulates determination of just compensation. Therefore, even in absence of an appeal by the claimant in an appropriate case this court can enhance the quantum of compensation payable. (Divisional Manager, New India Assurance Co. Ltd. V. Manjulata Jena & others; 2012 ACJ 1993)

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National Trust for Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disabilities Act

S. 2(g) – Mental Health Act, Ss. 52,53, 98 - Lunacy Act, S. 3 –Appointment as guardian of mentally retarded person – Though person with mental disorder was covered within definition of ‘mentally ill person’ in Act on 1987, but person with mental retardation had been specifically excluded from said definition - Therefore, in case of person with mental retardation, provisions of Act of 1999 would govern - Therefore, applicant could not have approached under Health Act, 1987 or Guardians and Wards Act, 1987 being appointed as guardian of mentally retarded person

With reference to the rival legal contentious urged on behalf of the parties, we have carefully considered the same with a view to find out as to whether the petitioners are entitled for the reliefs sought for in the writ petitions? What order?

Our answer to the aforesaid point is in favour of the borrower and guarantor for the following reasons.

It is an undisputed fact that OJC No. 4037 of 2002 was filed before this Court seeking for issuance of a mandamus for replacement of the installments to clear the outstanding loan amount borrowed by the borrower. When the matter is pending before this Court after issuing notice in these writ petitions, the vehicle was seized on 26-5-2006 and the same was sold on 12-1-2007 at Rs. 1,51,0001- which is lower than the off-set price of Rs. 2,50,0001- and also much lower than the insured value valued at Rs. 3,25,0001- covering the period from 3-9-2005 to 2-9-2006 including the date of seizure. Therefore, the sale of the seized vehicle from the possession of the principal borrower is not for a valid consideration. Since, the State Financial Corporation is the Trustee of the property and sold the same in public auction in voting Section 29 of the SFC Act sale is bad It in law accordingly we have to set aside the same. Since the vehicle has already been sold in public auction five years back, it would not be appropriate to direct the State Financial Corporation to re-sell the same. Having regard to the undisputed fact of sale of the vehicle for lesser value, we have to accept the sale value of the vehicle at Rs. 3, 25, 0001- as the vehicle has been insured with the New India Insurance Company, which is a Government owned company. Therefore, the said amount is taken as the amount received by the State Financial Corporation on 12-1- 2007 and the same should be taken as the amount which is realized towards the loan amount and for the remaining amount the principal borrower shall be allowed to have the One Time Settlement Scheme as the same was in force on the date of filing of the writ petition being OJC No. 4037 of 2002 and extend the benefit to him by adjusting the requisite amount received out of the sale consideration amount. The same shall be considered and disposed of within a period of four weeks from the date of receipt of certified copy of this order. Since we have answered that the sale of bus is bad in law for the reasons recorded above, during pendency of the writ petition prayers sought for in the writ petition No. 4046 of 2009 is required to be allowed as the principal borrower has rightly challenged the same. The sale of the co-lateral security property has been questioned in W. P. (C) No. 4046 of 2009 by the guarantor, since she is entitled to challenge the same as she is an aggrieved party for sale of the vehicle which is hypothecated in favour of the State Financial Corporation in realization of the valid consideration. Certainly gross illegality has been done by OSFC and its officers upon the guarantor and she will lose her immovable property which has been mortgaged with the OSFC as co-lateral security towards the loan borrowed by the borrower. Therefore, the relief sought for in W. P. (C) No. 4046 of 2009 is required to be allowed. Accordingly, we allow the said writ petition. The reliefs sought for in OJC No. 4037 of 2002 is subsequent to the event that had taken place during the pendency of the writ petition proceedings, the reliefs sought for in the aforesaid writ petition need not be granted. Therefore, the writ petition bearing OJC No. 4037 of 2002 is dismissed having become infructuous. The reliefs sought for in W. P. (C) No. 4046 of 2009 has to be granted giving direction to the principal borrower to file application seeking for One Time Settlement under the OTS Scheme, 2002 as he was before this Court seeking for re-placement of the loan amount and at that point of time OTS Scheme was invoked. The said benefit should be extended to the principal borrower. Further the petitioner in W. P. (C) No. 3001 of 2009 is entitled to get the relief. We make it very clear that if the principal borrower approaches the State Financial Corporation including a petition for relief under the One Time Settlement Scheme, 2002, for the balance loan amount to be re- covered from him as well as from the guarantor, the same shall be considered on its own merit and disposed of within a period of four weeks from today. All the calculation with regard to the loan amount shall be made after accepting the value of the bus of the borrower at Rs. 3, 25,000/- which was sold on 12-1-2007. From that date, the earlier period and subsequent period, the rate of interest that will be accrued at 6% yearly to be calculated in view of the Constitution Bench decision of the Supreme Court in the case of Central Bank of India v. Ravindra, reported in (2002) 1 SCC 367: (AIR 2001 SC 3095) Section 34 of the CPC may be applied to the case. It is not quarterly pendente lite interest, yearly simple interest must be calculated on the principal amount and the same must be calculated towards loan amount and strictly enforced as per the guidelines laid down in the aforesaid case. If after examination, the petitioner is entitled for one time settlement, the same shall be extended to the principal borrower.

With the aforesaid observation and direction to the Orissa State Financial Corporation, W. P. (C) No. 4046 of 2009 is allowed. O. J. C.No. 4037 of 2002 is dismissed as infructuous. W. P. (C) No. 3001 of 2009 is also allowed as per the direction given in W. P. (C) No. 4046 of 2009. Learned counsel for the petitioner in W. P. (C) No. 4046 of 2009 is directed to file application under OTS Scheme, 2002 within a period of two weeks and within four weeks thereafter the Orissa State Financial Corporation shall dispose of the same keeping in view the directions given to it and observations made. (Amit Toppo v. None; AIR 2012 Ori. 123)

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Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act

S. 47(2) – No promotion should be denied to a person merely on the ground of his disability - It would mean that where a person otherwise found eligible and suitable for promotion, the State should not deny him promotion on the ground of his disability - Hence, in view of protection given in Section 47(2), could not be claimed as matter of right for reservation for persons suffering with disabilities for promotion

Sub-section (2) of Section 47 of the Act No. 1 of 1996 is couched in negative terms, namely, that no promotion shall be denied to a person merely on the ground of his disability. This would mean that where a person is otherwise found eligible and suitable for promotion, the State shall not deny him promotion on the ground of his disability. In our view the protection given in sub-section (2) of Section 47, cannot be claimed as a right in a positive manner, for reservation for persons suffering with disabilities for promotion.

We further find that the consideration for affirmative action, providing reservation for physically handicapped persons under U.P. Act No. 1 of 1996 in direct recruitment cannot be extended, interpreting these Acts, to claim a right for reservation, in promotions.

The provisions for reservation in promotions, may be provided by the State as a matter of policy. The Courts do not either make policy, or ordinarily interfere with the policy decisions of the State. The Courts would not by interpreting the provisions providing for reservations, provide or cull out a policy favouring reservation for physically handicapped persons for promotion in public services. (Bhanu Pratap Singh v. State of U.P.; 2012 (2) ESC 1103 (All) (DB)

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Practice and Procedure

Practice and Procedure – If statute provides to do a thing in particular manner – Then that thing has to be done in that very manner

It is settled law that if a Statute provides to do a thing in a
particular manner then that thing has to be done In that very manner, In case the petitioner was not having requisite qualification as provided under the Statute or In the advertisement, certainly it would have been a case where the petitioner could be held ineligible for appointment. But here the case is different, the petitioner possess essential qualification as provided under the relevant Statute of the University and the advertisement inviting the application for the appointment on the aforesaid post of Assistant Professor. The qualification prescribed by I.C.A.R. may be there but unless it is inserted in the Statute of the University. that can have no binding force, In the event of non-insertion of the said qualification in the statute, the I.C.A.R. may take action against the University (if it is so permissible) but unless the alleged instruction of I.C.A.R. of the year 2003 (which has not even been brought on record), is inserted in the Statute, that will not vitiate the selection in question and the petitioner's right to continue on the post would be unaffected, as his selection was made as per prescribed qualification given in the Statute. (Dr. Shiv Kumar Singh vs. State of U.P. and others; 2012(4) AWC 3721)

Title of plaintiff/respondent – When can be challenged – Consideration of

The law is settled by the Court in D. Satyanarayana v. P. Jagdish; 1987 (4) SCC 424 that the tenant who has been let into possession by the landlord cannot deny the landlord’s title however defective it may be, so long as he has not openly surrendered possession by surrender to his landlord. Although, there are some exceptions to this general rule, none of the exceptions have been established by the appellants in this case. Hence, the appellants who were the tenants of the respondents will have to surrender possession to the respondents before they can challenge the title of the respondents. (State of A.P. & others v. D. Raghukul Parshad (D) by LRs; 2012(3) ARC 185 (SC)

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Prevention of Corruption Act

S.7—Bribery—Recovery of tainted money from accused—Not by itself sufficient to record conviction, demand of money by accused to be proved

It is settled principle of law that mere recovery of the tainted money is not sufficient to record a conviction unless there is evidence that bribe had been demanded or money was paid voluntarily as a bribe. Thus, the only issue that remains to be addressed is whether there was demand of bribe and acceptance of the same. Be it noted, in the absence of any evidence of demand and acceptance of the amount as illegal gratification, recovery would not alone be a ground to convict the accused. This has been so stated in T. Subramanian vs. The State of Tamil Nadu. (Narendra Champaklal Trivedi vs. State of Gujarat; 2012 Cr.L.J. 3025 (SC)

S.7—Bribery case—Reduction of sentence below minimum prescribed cannot be done in exercise of power U/A 142

Where minimum sentence is provided, it would not be at all appropriate for Supreme Court to exercise jurisdiction under Article 142 of Constitution of India to reduce the sentence on the ground of mitigating factors as that would tantamount to supplanting statutory mandate and further it would amount to ignoring the substantive statutory provision that prescribed minimum sentence for criminal act relating to demand and acceptance of bribe. The bribe amount may be small but to curb and repress this kind of proclivity the legislature has prescribed the minimum sentence. It should be paramountly borne in mind that corruption at any level does not deserve either sympathy or leniency. In fact, reduction of the sentence would be adding a premium. (Narendra Champaklal Trivedi vs. State of Gujarat; 2012 Cr.L.J. 3025 (SC)

Ss.7, 13—Trap case—Presence of shadow witness in trap party—Desirable but not must, mere absence of such witness would not vitiate whole trap proceeding

So far as the infant case is concerned, the appellants had been working under the health department of the State of Rajasthan. No provision analogous to the paragraphs contained in Railway Vigilance Manual, applicable in the health department of the State of Rajasthan at the relevant time had been brought to the notice of the courts below, nor had been produced before us.

Therefore, it can be held that it is always desirable to have a shadow witness in the trap party but mere absence of such a witness would not vitiate the whole trap proceedings. (Mukut Bihari vs. State of Rajasthan; 2012 Cr.L.J. 3370 (SC)

S.7—Investigation—Competent Authority—Effect of

Investigation of offence under S. 3(1)(x) was carried out by Sub-Inspector. Sub—Inspector was not competent authority under S. 7 to carry out investigation. Conviction of accused liable to be set aside. (Sunder Lal vs. State of M.P.; 2012 Cr.L.J. (NOC) 391 (MP)

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Provincial Small Causes Court Act

S. 25 – Provisions under – Revisional Court had no jurisdiction to reassess or re-appreciate evidence and to reverse finding of trial court on questions of fact – Explained

In the case of Smt. Prem Kumari Mehrotra v. XIIIth Addl. District Judge and another; 2004(2) ARC 88 in para 5 had held as under:

“5. In my opinion even if the findings recorded by the trial court are erroneous in law the Revisional Court has no jurisdiction to allow the revision out rightly after reassessment of the evidence. The only option left for the Revisional Court in exercise of power under Section 25 of PSCC Act was to remand the matter to the trial court as held in 1979 AWC 746”

Thus, from perusal of the aforementioned decisions, it is explicit that under section 25 of Provincial Small Causes Courts Act, the revisional court has no jurisdiction to reassess and reappraise the evidence and to reverse the findings of trial court on the questions of fact. (Ram Shabd Singh v. Additional District Judge, Kanpur Nagar and Another; 2012 (2) ARC 795 (All HC)

S. 25 Revision - Raising of Pleas of subletting for first time at revisional state would not be proper

Two ingredients are required to be pleaded to establish subletting namely (1) parting of exclusive possession by the tenant to the alleged sub tenant and (2) receiving of rent from the alleged sub tenant by the tenant. None of the aforesaid ingredients find place in the aforesaid paragraph. In a hotel, letting of dormitory to customers is its very nature. There is no pleading of parting exclusive possession by the tenant. The subletting is a mixed question of fact and law. In absence of proper pleadings and evidence, it will not be proper to permit a person to raise a new issue beyond the scope of pleadings at the revisional stage specially. Suffice it to say that this Court is not inclined to investigate and record any finding on the question of subletting at this stage of proceeding and it shall be open to the landlords to raise it, if so advised, in a proper proceeding before a forum of competent jurisdiction. (Ashwani Kumar Kohli vs. Rajesh Prasad Agarwal; 2012 (5) ALJ 146)

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Railway Accident & Untoward Incidents (Compensation) Rules, 1990

Rules 3 and 4 r/w schedule – law reform – Award of compensation –Tribunal can award Rs. 400000 for the death of a passenger in untoward incident under rule and it should be enhanced upto Rs. 10000 Statutory amendment recommended

The deceased Yogendra Kumar Sharma, while travelling by train in 8LKM passenger from Fatehgarh to Lucknow, with second class ticket dated 19.4.2002, issued by the Military Hospital, Fatehgarh, accidentally fell down from the train, due to sudden push by rush of passengers at Harauni Railway Station, Lucknow and in consequence thereof, sustained serious injuries which resulted into his death on the spot. Inquest report was prepared and post-mortem of dead body was done at Medical College, Lucknow. After his death, the parent of the deceased approached the Tribunal for payment of compensation. Parties have led their evidence before the Tribunal for payment of compensation. Parties have led their evidence before the Tribunal and after framing of the issues with regard to accidental death and considering the evidence led by the parties, the Tribunal awarded compensation of Rs. 400000. The Tribunal arrived at the conclusion that the accident in question is an untoward incident and claimants are entitled for payment of compensation.

While assailing the impugned award, submission of appellants’ counsel is that the deceased was not a bona fide passenger and injuries caused were self-inflicted injuries.

On the other hand, learned counsel for the respondents pointed out that the finding recorded by the Tribunal reveals that it was untoward incident and presumption under Section 114 of the Evidence Act is available to the claimants that deceased was a bona fide passenger, since he was possessing a ticket. It appears that no evidence was led by respondents to establish the exception provided under Section 124-A of the Railways Act. Burden was on the appellant-respondent to establish that the case in hand is covered by exception provided under the Act. Appellant has failed to discharge the obligation under the Act. Hence the evidence led by the claimant respondent seems to make out a case of bona fide passenger and so far as the self inflicted injuries are concerned, it appears that no evidence was produced, which may reveal that the deceased has suffered self-inflicted injuries.

Repeatedly, we are recommending Railways to provide an automatic mechanised door closer in the compartment to check such incident but it appears that no decision has yet been taken. In case manual or mechanised provision had been made to close the door, such incident would not have occurred. It is statutory as well as have constitutional obligation of Railways to ensure that the door of the moving train is open whenever it reached the platform and at the time of leaving it is closed automatically, so that safety and security or passengers are secured.

In the present case, the deceased had accidentally fallen down from the train in question due to sudden push by rush of the passengers. On one hand Railways seems to be careless in discharge of its duty to provide safety and security to passengers travelling in train by providing mechanised or manual door closer or by regulating entry of the passengers in the compartment of the train and on the other hand, appeals are filed in a routine manner against the compensation awarded by the Tribunal.

The maximum amount of Rs. 4,00,000 provided under the statute is too meagre, when the price index is very high and life has become costly, though the compensation awarded by the Tribunal is not final and the claimants may approach the other forum for payment of more compensation but the things, as they stand, reveal that the members of deceased’s family are indulged in litigation for years to get the meagre amount of Rs. 4,00,000, leaving no room to knock the other door for higher compensation. In such a situation, it is appropriate for the Union of India to amend the statutory provision and make a provision that the compensation provided in the Schedule of Rs. 4,00,000 should be enhanced. (Union of India v. Ram Swaroop Sharma and others, 2012; ACJ 1876)

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Right of Children to Free and Compulsory Education Act

Section 23(1) - After enforcement of Act, 2009, no appointment can be made on post of Assistant Teacher in a Primary institution if person does not possess qualification prescribed by NCTE in Regulations notified under Section 23 of Act, 2009

Since the provision does not contemplate appointment of a Teacher who is not qualified as per Regulations of N.C.T.C., any provisions made earlier even if permit unqualified persons to be appointed in certain cases, cannot be followed after framing of Regulations by Authorised Authority. In absence of a statutory provision prior to Act, 2009, the provisions permitting appointment of untrained persons could have been complied with since the same had no occasion to infringe any other statute having overriding effect but after Act, 2009 and Regulations framed thereunder, the situation has undergone a wide change. It is not disputed that National Council of Teachers Education has been notified as Authorised Academic Authority under Section 23(1) and the said body has framed Regulations laying down minimum qualification and eligibility conditions for appointment of Teachers in Primary Schools. In the light of said provisions, which have been made under Act, 2009; the same have overriding effect and, therefore, the otherwise provisions under provincial legislation would sub-serve. (Committee of Management, Mahavir Singh Solanki Memorial Krishi Junior High School, Aliganj, District Budaun v. State of U.P.; 2012 (2) ESC 1082 (All)

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Right to Information Act

Central or State information commission has no jurisdiction to pass an order providing for access to the information, can only pass an order of penalty

It has been contended before us by the respondent that under section 18 of the Act the Central Information Commission or the State Information Commission has no power to provide access to the information which has been requested for by any person but which has been denied to him. The only order which can be passed by the Central Information Commission or the State Information Commission as the case may be, under section 18 is an order of penalty provided under section 20. However, before such order is passed the Commissioner must be satisfied that the conduct of the Information Officer was not bona fide. (Chief Information Commissioner v. State of Manipur; 2012 (116) RD 505 (SC).

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Service Laws

Constitution of India – Articles 235 and 227 – Judiciary - Proper recording confidential report – Necessity of recording ACR carefully with due diligence and caution – Emphasized

The present system of recording the ACRs leaves much to be desired and needs to be revamped. Experience has shown that it is deficient in several ways, being not comprehensive enough to truly reflect the level of work, conduct and performance of each individual on the one hand and unable to check subjectivity on the other. This undoubtedly breeds discontent in a section of the judicial service besides eroding proper and effective superintendence and control of the High Court over subordinate judiciary. The process of evaluation of a judicial officer is intended to contain a balanced information about his performance during the entire evaluation period, but it has been noticed that many a times, the ACRs are recorded casually in hurry after a long lapse of time (in some cases even after the expiry of one year from the period to which it relates), indicating only the grading in the final column. It needs no elaboration that such hurried assessment cannot but, be either on the basis of the assessment/grading of the preceding year(s) or on personal subjective views of the Inspecting Judges(s), which is unfair to the judicial officer. Undoubtedly, ACRs play a vital and significant role in the assessment, evaluation and formulation of opinion on the profile of a judicial officer, particularly, in matters relating to disciplinary action against a judicial officer. The ACRs of such officer hold supreme importance in ascertaining his conduct, and therefore, the same have to be reported carefully with due diligence and caution. Hence, there is an urgent need for reforms on this subject, not only to bring about uniformity but also to infuse objectivity and standardization. (Registrar General, High Court of Patna Vs. Pandey Gajendra Prasad and Others; (2012) 6 SCC 357)

Constitution of India, Article 235 – Compulsory retirement - Nature of – Not a form of punishment involving penal consequences and differs from dismissal and removal from service

Compulsory retirement from service is neither dismissal nor removal, it differs from both of them, in that it is not a form of punishment prescribed by the rules and involves no penal consequences inasmuch as the person retired is entitled to pension and other retiral benefits proportionate to the period of service standing to his credit. An order of compulsory retirement being not an order of adverse consequence, principles of natural justice have no application. (R.C. Chandel Vs. High Court of Madhya Pradesh and another; (2012) 8 SCC 58)

Art. 235 – Control of High Court over subordinate court – Whether Full Court recommendation regarding compulsory retirement of officer of Subordinate Judiciary could be given priority over view taken by Administrative Committee – Held “yes” since administrative committee’s view is not final but it is recommendatory in nature.

It was argued by the learned Senior Counsel for the appellant that Administrative Committee I had recommended the appellant’s continuation in service and there was no justification for the Full Court to take a contrary view. The view of the Administrative Committee is not final. It is recommendatory in nature. It is open to the “Full Court to accept the Committee’s report or take a different view. In the present case, the Full Court on the basis of the entire service record of the appellant formed a unanimous opinion that the appellant must be compulsorily retired and recommended to the Government, accordingly. On the basis of the material which existed and which we have referred to above, it can hardly be said that the recommendation by the Full Court to the Government for compulsory retirement of the appellant was arbitrary or based on material not germane for such recommendation.

Judicial independence and courage – Credibility of judicial system dependent upon Judges who made it

Judicial service is not an ordinary government service and the Judges are not employees as such. Judges hold the public office; their function is one of the essential functions of the State. In discharge of their functions and duties, the Judges represent the State. The office that a Judge holds is an office of public trust. A Judge must be a person of impeccable integrity and unimpeachable independence. He must be honest to the core with high moral values. When a litigant enters the courtroom, he must feel secured that the Judge, before whom his matter has come, would deliver justice impartially and uninfluenced by any consideration. The standard of conduct expected of a Judge is much higher than an ordinary man. This is no excuse that since the standards in the society have fallen, the Judges who are drawn from the society cannot be expected to have high standards and ethical firmness required of a Judge. A Judge, like Caesar’s wife, must be above suspicion. The credibility of the judicial system is dependent upon the Judges who man it. For a democracy to thrive and the rule of law to survive, justice system and the judicial process have to be strong and every Judge must discharge his judicial functions with integrity, impartiality and intellectual honesty. (R.C. Chandel Vs. High Court of Madhya Pradesh and another; (2012) 8 SCC 58)

Departmental enquiry –

Acquittal in criminal proceedings not on merit but on insufficiency of evidence – Department proceeding would be continue against person who suspected of rape even though he acquitted due to insufficiency of evidence.

In R.P. Kapur V. Union of India, AIR 1964 SC 787, the Constitution Bench of this Court has held that if the trial of a criminal charge results in conviction, disciplinary proceedings are bound to follow against the public servant so convicted, but even in case of acquittal departmental proceedings may follow, when the acquittal is other than honourable. We are not aware whether any disciplinary proceedings are pending against the appellant. But, if they are, the authority concerned shall proceed with them independently, uninfluenced by the judgment and in accordance with law. (K. Venkateshwarlu Vs. State of Andhra Pradesh; (2012) 8 SCC 73)

Employment – Recovery – Benefit already accrued under relevant G.O. cannot be recovered from them under group of adjusting same

The petitioners were granted the benefits in terms of G.O. dated 2.12.2000, as explained by the G.O. dated 10.4.2001 and 3.9.2001. It is not the case of the respondents in their counter-affidavit that these G.Os. were not applicable to the petitioner or that the benefits granted to the petitioners were not covered by and contrary to the provisions of the above G.Os. The G.O. dated 15.2.2000 relied on by the respondents only relates to the period of wages received from 1.1.1996 to 31.3.1996 but does not in any manner fetter the rights and benefits already accrued to the petitioners nor does it even refer to the G.Os. dated 2.12.2000 or 10.4.2001 or 3.9.2001 and therefore, the G.O. dated 15.2.2000 has no application in the case of the petitioners.

In view of the above position and the law laid down by the Supreme Court, in the court’s opinion the benefits already accrued and actually received by the petitioners cannot be recovered from them under the garb of adjusting the same. (Rai Ravindra Kishore Srivastava and others vs. State of U.P. and others; 2012(4) AWC 3932)

Regulations – Regulation 351A - Employment – Retirement – Punishment – If in disciplinary proceedings, no oral enquiry held, principles of natural Justice are violated

It is fairly well settled, that the pension- is neither a bounty nor reward. It is earned by a Government servant under the statutory rules after rendering satisfactory services. The pension or part thereof can be withdrawn under Article 351A, whether permanently or for specified period, where a pensioner under any departmental or judicial proceedings is found to be guilty of grave misconduct or to have caused pecuniary loss to Government by misconduct or negligence during his services rendered on re-employment. The proceedings of departmental enquiry have to be held in accordance with law serving principle of natural justice, The orders passed by withdrawing or reducing the pension have permanent effect, and thus such proceedings are of the nature of awarding major penalty in which the rules of enquiry must be strictly followed. When the State Government has framed rule under the proviso to Article 309 for imposing penalty including major penalty, namely the U. P. Government Servant (Discipline and Appeal) Rule. 1999 the rules must be strictly followed. Article 351A authorizes the punishment to be given even after retirement. It does not in any way curtail or take away the right of the pensioner, which is otherwise given to a serving Government servant, to defend himself in the enquiry. The punishment under Article 351A of withdrawing or reducing the pension can be given only if the pensioner, while she was serving as Government servant is found to have committed gross misconduct or to have cause pecuniary loss to the Government by misconduct or negligence during the services.

The Court found further find that the departmental enquiry did not comply with the principles of natural justice inasmuch as no oral enquiry was held nor any witnesses were led or opportunity was given to the petitioner to lead oral evidence. There was no finding recorded by the enquiry officer or by the disciplinary authority that the petitioner has committed acts of gross misconduct or have caused any loss to the State Government to exercise powers under Article 351A of the Civil Services Regulation for making deductions for her pension. (Smt. Ahmadi Usman Retd. Asstt. Director (Basic) vs. State of U.P. & others; 2012(5) AWC 4410)

Regularisation – Grounds of

As no appointment letter having been issued by respondent No. 3 for appointing the petitioner on the post of Lecturer at any point of time is appended along with writ petition. The certificates dated 27.3.1992 and 16.3.2001, which have been issued by the Principal of the Degree College having been brought on record, show that the petitioner was teaching in B. Com. Classes on period wise contract basis @ Rs.25 per lecture since December, 1991 and that certificate dated 16.3.2001, which is alleged to have been issued by the said Degree College in which the petitioner is said to have been working for certain sessions, it appears that it does not bear either the seal or the signature of the issuing authority. In our view, a certificate showing period of contractual work, alleged to have been issued on behalf of the degree college, cannot take place of appointment letter issued by the college appointing the petitioner as Lecturer neither on a substantive post nor vests him with any legal right for regularisation. The claim of the petitioner for regularising his services as Lecturer in the said Degree College is not maintainable as the petitioner's appointment was only as part-time Lecturer on contractual basis. His engagement was neither on any substantive post nor through any selection process under any statutory rules or laws. The petitioner is also not working in the said Degree College after the year 2002 when he filed the present writ petition claiming his regularization.

It is well-settled law as has been laid down by the Supreme Court that regular pay scale connote appointment on a substantive post and is permanent in nature. It follows that the law has undergone a sea of change and ad-hoc or temporary or part-time employee cannot be directed to be placed in the minimum of pay scale of regular employee. Therefore, the cases cited by the petitioner has been diluted by the Supreme Court and direction for placing the petitioner in the minimum of pay scale cannot be given as it has also not even pleaded by the petitioner. The petitioner has only prayed for regularisation in service which would mean that if he is appointed in accordance with law, he would be placed in the regular pay scale of the post. However, we find, that the petitioner has claimed that his services have been orally terminate, and as such, he cannot be regularised on service for this reason also. Eve) otherwise, the principle of law is settled by the Supreme Court that the High Court should not normally direct regularization of a person in service as it has to be factually determined whether there are any post vacant and that person is qualified. (Dr. Dinesh Rai vs. State of U.P. and others; 2012(5) AWC 4512)

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Specific Relief Act

S. 14(1) & 20

Held that acceptance of refund of earnest money paid by Appellant to Respondents was not considered by Trial Court as also High Court in its proper perspective as said amount was received under protest had not been considered either by Trial Court or by High Court. Appellant had actively involved himself in the matter of obtaining the sale permission as well as Income Tax Clearance Certificate. The fact that the Appellant had made several requests to the Respondents to file a proper affidavit, as requested by the DDA, is another indication that the Appellant was ready and willing to complete the sale transaction.

Appellant compensated for the time spent by him in pursuing his remedy in respect of the Agreement to Sell. Accordingly, the suit is decreed, but instead of decreeing the suit for specific performance of the Agreement, Respondents shall pay the Appellant costs for the litigation right throughout, assessed at Rs. 25,00,000/-, to be paid by the Respondents to the Appellant within one month from date. (Rattan Lal (D) through LRs Vs. S.N. Bhalla & ors.; 2012 (5) AWC 5197 (SC)

Ss. 17 and 58 – Admission – Evidentiary value – Admission is substantive evidence and not conclusive can be decisive

Admission is the best piece of substantive evidence that an opposite party can rely upon, though not conclusive, is decisive of the matter, unless successfully withdrawn or proved erroneous Admission may in certain circumstances, operate as an estoppel. The question which is needed to be considered is what weight is to be attached to an admission and for that purpose it is necessary to find out as to whether it is clear, unambiguous and a relevant piece of evidence, and further it is proved in accordance with the provisions of the Evidence Act. It would be appropriate that an opportunity is given to the person under cross-examination to tender his explanation and clear the point on the question of admission. (Union of India Vs. Ibrahim Uddin and another; (2012) 8 SCC 148)

Ss. 34 and 5 – Discretion of court regarding declaration of relief

Declaration of relief is always discretionary. If the discretion is not exercised by the lower court “in the spirit of the statute or fairly or honestly or according to the rules of reasons and justice”, the order passed by the lower court can be reversed by the superior court. (Union of India Vs. Ibrahim Uddin and another; (2012) 8 SCC 148)

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Stamp Act

S. 47A(3) and 56 (1A) - U.P. Stamp (Valuation of property) Rules, 1997 - Rule 9(d) – Stamp duty – Deficient – Imposition of penalty without following provision under rule 9(d) – Effect of

The provisions of Rule 9 of the U.P. Stamp (Valuation of Property) Rules, 1997, whereby mode of service of notice is provided. Rule 9 (d) is quoted hereunder:

“9. Service of notices, etc.-All notices, orders and other documents required to be served upon any person shall be deemed to be duly served:

(d) In any other case, if it is addressed to the person. to be served, and

(i) is given or tendered to him or his authorised agent, or

(ii) is sent by registered post to that person, or

(iii) if such person cannot be found and notice or order or the document sent to him through registered post is received back undelivered, is affixed on some conspicuous part of his last known place of residence or business, or is given or tendered to some adult member of his family.”

From the aforesaid rule it is clear that affixation is permissible only when the notice could not be served through registered post. That exercise having not been undertaken by the authority concerned, the petitioner is justified in claiming that no notice has been served upon him and the appellate authority in not considering this aspect of the matter regarding proper service of notice to the petitioner has erred in law.

Under the circumstances, in absence f notice to the petitioner, the proceedings initiated under Section 47A (3) cannot be said to be justified and consequentially, the appellate order cannot also be sustained. Accordingly, the order passed und Section 56 (l-A) of the Indian Stamp Act is set aside as well as the order passed under Section 47A (3) dated 27.5.2009 is quashed and the matter is remanded back to the Collector before whom the petitioner will furnish his objection within one month from the date of the certified copy of this order. (Aruba Khan vs. Chief Controlling Revenue Authority/ Commissioner, Moradabad and others; 2012(4) AWC 3746)

Provisions of stamp Act will prevail over Administrative order
The provisions of the Stamps Act will prevail over the administrative order passed by the Special Secretary and it is evident that both the Courts below have exceeded the jurisdiction vested in them by imposing deficient stamp duty on the basis of circle rate along with penalty as well as on the amount of loan and interest thereon. It view of the provisions of Article 18(c) aforesaid, the stamp duty has to be paid as conveyance. (M/s. Steel Engineers v. State of Uttarakhand; 2012 (116) RD 239)

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Transfer of Property Act

S. 105 – Easement Act, S. 52 – Words “lease” & “license” – Meaning of

In the case of Qudrat Ullah v. Municipal Board, Bareilly; (1974) 1 SCC 202: AIR 1974 SC 396, it was observed thus:

“........If an interest in immovable property, entitling the transferors to enjoyment is created, it is a lease; if permission to use land without right to exclusive possession is alone granted, a license is the legal result.”

(Rakesh Gupta v. Harish Chand Gandhi & another; 2012 (2) ARC 815, All HC)

S. 114 – Benefit under – Question of entitlement considered

With regards to the benefit of the provisions of section 114 of the Transfer of Property Act, the law is well settled, that the protection is at the discretion of the Court (kindly see Hindustan Petroleum Corporation Limited v. Chandra Prakash Bubna; 1995 Suppl (4) SCC 167: 1996 SCFBRC 174). The courts below after taking into consideration the conduct of the defendant have denied the discretionary relief to him. Court noticed and considered the reasons recorded by the courts below for denying the benefit of section 114 of the Transfer of Property Act. (Kishori Raman Shiksha Samiti v. Ashok Chaturvedi; 2012 (2) ARC 785) (All HC)

The principle question to be considered is as to whether the document of allotment of land in dispute was in any way a lease or a license.

Held - that the document of allotment merely granted a permission to use the concerned parcel of land in a particular manner, and without creating any interest therein. Hence, the document will have to read as granting a license, and not a lease. As far as the land meant for the Children’s amusement park is concerned, the same was hardly put to the full use. In as much as this entire parcel of land of about 7 acres was not utilized, and since it was an open parcel of land, there was nothing wrong in the State Government deciding to retain it as an open parcel of land, and to change the land-use thereof from commercial to a regional park. The notification cannot be faulted on that count. Thus there was no error in impugned judgment of High Court - Appeal dismissed. (Mangal Amusement Park (P) Ltd.andAnr. Vs. State of Madhya Pradesh and Ors.; 2012 (5) AWC 5186 (SC)

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U.P. Municipal Corporation Act

Sec 177 (c) - Payment of House Tax - Exemptions – Entitlement

Court found that the building of 'Holy Trinity School', used solely for the purposes of school, even if it is not getting any aid from the State Government is exempt from payment of house tax. The exemption under Section 177 (c) of the U.P. Municipal Corporation Act, 1959, is not qualified, or conditional and thus the school is not liable to pay any house tax.

So, the impugned assessment and the bill of house tax and the order dated 28.10.2002 passed by the Tax Superintendent, Nagar Nigam, Allahabad is set aside. (A.R. Stephan, Bishop of Lucknow vs. Nagar Nigam, Allahabad; 2012 (2) ALJ 206)

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U.P. Consolidation of Holdings Act

Ss. 11C and 48 – Scope of consolidation authorities under duty to protect property of gaon sabha under section 11-C of U.P. Consolidation of Holding Act, 1953

In this case, since the land recorded is that of the Gaon Sabha. Under Section ll-C of the 1953 Act, it is the duty of every consolidation authority to protect the property of the State and of the Gaon Sabha and in such a situation, the Deputy Director of Consolidation was well within his jurisdiction to have restored the correct entries in favour of the Gaon Sabha. (Anil Kumar and others vs. State of U.P. & another; 2012(4) AWC 3830)

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U.P. Cooperative Societies Act

S. 69 - Powers - Conferred upon the Registrar for remedying of defects - Discussed and explained

The administrative powers under section 69 of the Act have been conferred upon the Registrar for remedying of defects. The powers of the Registrar had been delegated under a notification dated 24.7.1969 but these powers can be exercised only in cases where as a result of audit held under section 64 of the Act or an inquiry under section 65 of the Act or on an inspection under section 66 of the Act the Registrar is of the opinion that the society is not working on sound lines or its management is defective, then he may without prejudice to any other action under this Act, order directing the society or its officers to take such action not inconsistent with this Act, the rules and bye-laws to remedy the defects within the time specified therein. The definition of Joint Registrar under Rule 2(f) of the U.P. Cooperative Societies Rules, 1968 defines Joint Registrar as an officer appointed as a Joint Registrar of Cooperative Societies under sub-section (2) of section 3. Sub-section (2) of section 3 provides that the State Government may, for the purposes of this Act, also appoint other persons to assist the Registrar and by general or special order confer on any such person all or any of the powers of the Registrar. Therefore, even if it is presumed that respondent No. 3 was exercising delegated powers of Registrar in passing the impugned order under section 69 of the Act, then also he had no jurisdiction to pass the impugned order because under section 69 of the Act the order can be passed for remedying the defects directing the society or its officers to take such action not inconsistent with the act, rules and bye-laws. In the instant case, no such directions have been issued by respondent No. 3 for remedying the defects either to society or to its officers. Further respondent No. 3 cannot issue such directions when respondent No. 4 exercising delegated powers of Registrar has already ordered for holding fresh inquiry under section 65 of the Act. (Committee of Management, Bhartiya State Bank Karmachari Vetan Bhogisahkari Rin Samiti Ltd., through its Chairman Peitioner v. State of IT.P. through Principal Secy., Co-operative, I.T.P. Shasan, Lucknow & others; 2012 (115) RD 849 (All HC).

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U.P. Government Servant (Dispute and Appeal) Rules

Non issuance of any charge-sheet to petitioner so far fortify and justify an inference to be drawn by High Court that order of suspension passed in instant case is stigmatic, Arbitrary and even otherwise illegal, gross abuse of power conferred upon appointing authority regarding suspension-And, such a prolonged suspension cannot be held valid and justified and respondents cannot be allowed to keep an employee under suspension for an indefinite period

Moreover, such a prolonged suspension cannot be held valid and justified and the respondents cannot be allowed to keep an employee under suspension for an indefinite period as held by this Court in Smt. Anshu Bharti v. State of U.P. and others, 2009(1) AWC 691 where in paras 9, 10, 12 and 13 this Court has observed as under:

“9 . . . . The prolonged suspension of the petitioner is clearly unjust and unwarranted. The question deals with the prolonged agony and mental torture of a suspended employee where inquiry either has not commenced or proceed with snail pace. Though suspension in a contemplated or pending inquiry is not a punishment but this is a different angle of the matter, which is equally important and needs careful consideration. A suspension during contemplation of departmental inquiry or pendency thereof by itself is not a punishment if resorted to by the competent authority to enquiry into the allegations levelled against the employee giving him an opportunity of participation to find out whether the allegations are correct or not with due diligence and within a reasonable time. In case, allegations are not found correct, the employee is reinstated without any loss towards salary, etc., and in case the charges are proved, the disciplinary authority passes such order as provided under law. However, keeping an employee under suspension, either without holding any enquiry, or in a prolonged enquiry is unreasonable. It is neither just nor in large public interest. A prolonged suspension by itself is penal. Similarly an order of suspension at the initial stage may be valid fulfilling all the requirements of law but may become penal or unlawful with the passage of time, if the disciplinary inquiry is unreasonably prolonged or no inquiry is initiated at all without there being any fault or obstruction on the part of the delinquent employee. No person can be kept under suspension for indefinite period since during the period of suspension he is not paid full salary. He is also denied the enjoyment of status and therefore admittedly it has some adverse effect in respect of his status, life style and reputation in society. A person under suspension is looked with suspicion in the society by the persons with whom he meets in his normal discharge of function.

10. A Division Bench of this Court in Gajendra Singh v. High Court of Judicature at Allahabad, 2004(3) UPLBEC 2934, observed as under:

“We need not forget that when a Government officer is placed under suspension, he is looked with suspicious eyes not only by his collogues and friends but by public at large too.”

11. Disapproving unreasonable prolonged suspension, the Apex Court in Public Service Tribunal Bar Association v. State of U.P. and others, 2003(1) UPLBEC 780 (SC), observed as under:

“If a suspension continues for indefinite period or the order of suspension passed is mala fide, then it would be open to the employee to challenge the same by approaching the High Court under Article 226 of the Constitution ....... (Para 26)

12. The statutory power conferred upon the disciplinary authority to keep an employee under suspension during contemplated or pending disciplinary enquiry cannot thus be interpreted in a manner so as to confer an arbitrary, unguided an absolute power to keep an employee under suspension without enquiry for unlimited period or by prolonging enquiry unreasonably, particularly when the delinquent employee is not responsible for such delay. Therefore, I am clearly of the opinion that a suspension, if prolonged unreasonably without holding any enquiry or by prolonging the enquiry itself, is penal in nature and cannot be sustained.

13. The view I have taken is supported from another Judgment of this Court in Ayodhya Rai and others v. State of U.P. and others, 2006(3) ESC 1755.

(Rakesh Bhusan Mishra v. State of U.P.; 2012 (2) ESC 1057 (All)

U.P. Regularization of daily wages Appointment on Group D posts Rules, 2001 – Rule 4 – Employment – Daily wager – Regularization – Consideration of

Petitioner admittedly was appointed on 1.1.1987 as such the aforesaid rule is clearly applied in his case. The requirement of the rule is that the petitioner should have continued in service on the date of commencement of this rule. What has been contemplated is that on the date when the aforesaid rule has come into force, he should be in the service. The rule making Body was aware of the fact that the appointment made on daily wage basis, such interruption of periodical breaks are inherent. What is emphasized is that the persons who are working continuously even though with breaks are required to be given benefit of regularization. A person, who is entitled to be regularized under the said Rules should have been appointed prior to June, 1991 and was working on the date when the said Rule came into force. Their continuance in the department from 1991 to 2001 even with breaks is itself an indication that their services are required by the department. Very nature of their appointment being of daily wager, does not contemplate uninterrupted tenure. It is why expression has been used in the Rule that a person should be continued in service on the date when the Rule came into force. The rule does not contemplate uninterrupted continuous service. The contention raised on behalf of the respondent is reading something into the rule which is not intended thereby.

In the facts and circumstances of the case, the respondents are directed to issue an order for regular appointment in favour of the petitioner provided he is eligible and qualified to hold the said post within a period of two months from the date of presentation of a certified copy of this order before him. (Ram Chandra Yadav vs. State of U.P. and others; 2012(4) AWC 3915)

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U.P. Land Revenue Act

S. 17(3) – U. P. Krishi Utpadan Mandi Adhiniyam, 1964 - Explanation to Section 17(3) - Presumption under Explanation - Appellants failed to rebut presumption by adducing sufficient and cogent evidence

The orders passed by the Mandi Samiti and the Director exercising powers of the Mandi Parishad on revision clearly show that there was no clear and convincing evidence to establish that the presumption arising under Explanation to Section 17 (iii) of the U. P. Krishi Utpadan Mandi Adhiniyam, 1969 stood rebutted and that the actual was not, what was presumed under the said provision.

The Mandi Samiti appreciated each piece of evidence and found the same to be insufficient to hold that the sale transactions had, in fact, taken place outside the mandi area so that the presumption arising under Explanation to Section 17 (iii) of the Act stood rebutted. The Director exercising powers of the Mandi Parishad has in its order dated 25th September, 2004 on revision once again evaluated the evidence and concurred with the view taken by the Mandi Samiti.

So long as the finding recorded by the Mandi Samiti and the Mandi Parishad are not irrational or perverse, and so long as the view taken by them is a reasonably possible view, the Supreme Court would not interfere. (Heinz India (P) Ltd. and another vs. State of U.P. and others; 2012 (4) AWC 3662 (SC)

Ss. 30, 34, 35, 40 and 54 – Mutation proceeding – Nature of – Proceedings summary in nature

The, law is well-settled that:

(i) mutation proceedings are summary in nature wherein title of the parties over the land involved is not decided;

(ii) mutation order or revenue entries are only for the fiscal purposes to enable the State to collect revenue from the person recorded;

(iii) they neither extinguish nor create title;

(iv) the order of mutation does not in any way effect the title of the parties over the land in dispute; and

(v) such orders or entries are not documents of title and are
subject to decision of the competent court.

It is equally settled that the orders for mutation are passed on the basis of the possession of the parties and since no substantive rights of the parties are decided in mutation proceedings, ordinarily a writ petition is not maintainable in respect of orders passed in mutation proceedings unless found to be totally without jurisdiction or contrary to the title already decided by the competent court. The parties are always free to get their rights in respect of the disputed land adjudicated by competent court. (Mathura vs. State of U.P. and others; 2012(4) AWC 3825)

Ss. 33, 39 and 40 – Correction of revenue entry – Dispute as to little – Dispute to title cannot be adjudicated upon by collector in view of proviso to section 39 of U.P. Land Revenue Act

It is not in dispute that the petitioner's name is recorded in the revenue records' as is established from the extract of khatauni of 1410 fasli issued in her favour, on the t basis of which the petitioner is in possession over the land in dispute. The Tehsildar only on the ground that the name of Mr. Ravinda Kumar whose sons; namely; Vinay Kumar and Vineet Kumar were recorded in the revenue records in the forged manner passed the order to delete their names.

It is not in dispute that Collector concerned proceeded to
pass the order impugned only on the basis of report submitted by the “Tahsildar without providing opportunity of hearing to the petitioner” whereas keeping in view the judgments referred hereinabove I am of the view that the respondents were under obligation to provide opportunity of hearing to the petitioner before passing the order. Moreover since the petitioner is a bona fide purchaser, her name is recorded in the revenue records as is evident from extract of khatauni of 1410 fasli and is also in the possession over the land in dispute, I find that prima facie, the entry in the revenue records cannot be said to be forged one rather it leads towards the dispute of title, for which the Collector concerned is not empowered to adjudicate upon in light of proviso of Section 39 of the Act. (Smt. Usha Srivastava vs. Sub-Divisional Magistrate/ Assistant Collector (Ist Class), Sadar, Lucknow & others; 2012(5) AWC 4503 (LB)

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U.P. Urban Buildings (Regulation of Letting, Rent & Eviction) Act

U.P. Urban Buildings (Regulations of Letting Rent & Eviction) Act

Sec. 2(1) (d) – Applicability of Act Exemption – Provision of Act exempts building used for industrial purposes - But hotel does not fall in category of Industry - Hence Act would be applicable

The State Government has declared hotel as tourism industry, the provisions of the U.P. Act No.13 of 1972 will not be applicable to the building in question. Section 2 of the Act provides that certain buildings are exempt from operation of Act. Clause (d) of section 2(1) states that nothing in this Act shall apply to any building used or intended to be used for any other industrial purpose (that is to say for the purposes of manufacture, preservation or processing of any goods). The hotel industry does not fall in any of these categories of industrial purposes and therefore, clause (d) would not be available to the landlords. Under clause (C) any building used or intended to be used as a factory within the meaning of Factories Act, 1948 where the plant of such factory is leased out along with the building is exempt. There being no such case of letting any plant to the tenant, the said clause would also not be applicable. (Ashwani Kumar Kohli vs. Rajesh Prasad Agarwal; 2012 (5) ALJ 146)

S 2(2) – Provisions under – Explained

A suit for recovery of arrears of rent and ejectment i.e. S.C.C. Suit No. 11 of 1987 was filed by the petitioner on the ground that the shop in question was damaged in a riot which took place in 1978 and thereafter it was reconstructed by the landlord himself at his own cost hence Uttar Pradesh Urban buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (U.P. Act No. 13 of 1972) (hereinafter referred to as “Act, 1972”) was not applicable in view of Section 2(2) of Act, 1972 wherein it is provided that Act, 1972 would not be applicable to a new construction for a period of 10 years. The Courts below have held that question whether cost of construction was incurred by landlord or tenant is wholly irrelevant for the purpose of Section 29 of Act, 1972 which is for the benefit of tenant and irrespective of the fact who got the reconstruction made, mere fact that the shop was reconstructed in 1978 it shall not make the Act inapplicable when the tenant was occupying premises in question before enactment of Act, 1972 and before such reconstruction, the Act, 1972 was applicable to the shop in question. It is contended that these finding of Courts below are patently illegal. Sri Dayal contended that the Courts below have committed patent error in construing Section 29 of Act, 1972 which does not apply to a case where reconstruction has been made by the landlord himself incurring cost on his own and is confined to those cases only where reconstruction of damaged accommodation has been made by tenant incurring his own expenses.

A new construction made would attract the exemption under Section 2(2) read with Explanation thereof where “construction” has been defined as under:

“construction” includes any new construction in place of an existing building which has been wholly or substantially demolished. (Fazal Ahmad Khan v. XIVth ADJ & Others; 2012 (3) ARC 345 (All HC)

Sections 3(a) and 3(j) – Expression “tenant and landlord” – Meaning of explained

Section 3(j) of the Act defines ‘landlord’ to mean a person to whom the rent of a building is payable or would be payable and includes his agent or attorney except those mentioned in clause (g) i.e., his family members. Therefore, definition of the landlord is quite wide under the Act and the landlord need not necessarily be the owner of the property.

Section 3(a) of the Act defines a ‘tenant’ in relation to a building to mean a person by whom rent is payable. The word ‘rent’ has not been defined under the Act but it means total payment made under an instrument of letting, if any, or mandatory compensation payable by the tenant for consideration for the grant. (Rakesh Gupta v. Harish Chand Gandhi and another; 2012 (2) ARC 815) (All HC)

S.20 – Eviction – Tenant let into possession by landlord – Cannot deny land lords title however defective it surrendered possession to landlord

The respondents herein filed O.S. 2379 of 1990 in the Court of 5th Assistant Civil Judge, City Civil Court, Hyderabad against the appellant’s No. 1 to 4 for ejectment and resumption possession of the suit land. The case of the respondents in the plaint was that the appellants had taken lease of the suit land from 'their common ancestor late Shri Dwaraka Parshad who had purchased the suit land from Nawab Raisyar Bahadur. The further of the respondents in the plaint was that as the appellants failed to pay any rent from 1986 and renewed the lease after 1986, the respondents gave a notice to the appellants on 30.11.1989 to vacate the suit land. The appellants filed written statement pleading, inter alia, that the suit land actually belonged to the appellants and the lease deed had been executed and the rent had been paid to the respondents by mistake of fact. The learned Civil Judge decreed the suit for eviction after recording a finding, inter alia, that the appellants have not been able to prove the title to the land. The appellants filed first appeal before the 3rd Additional Chief Judge, City Civil Court. Hyderabad which was numbered as A.S. No. 294 of 2005. The first appellate court held that the appellants were stopped from setting up title in them so long as they have not surrendered possession of the land to the lessees. namely, the respondents and further held that the appellants have not been able to establish their title to the suit land.

Aggrieved, the appellants filed Second Appeal S.A. No. 270 of 2009 before the High Court and by the impugned order, the High Court has dismissed the second appeal after holding that the appellants cannot be permitted to deny the title of the respondents under the provisions of Section 116 of the Indian Evidence Act and also holding that the appellants have not been able to adduce any evidence to prove that the suit land belonged to the appellants.

The law is settled by this Court in D. Satyanarayana v. P. Jagdis. 1987 (4) SCC 424, that the tenant who has been let into possession by the landlord cannot deny the landlord's title however defective it may be, so long as he has not openly surrendered possession by surrender to his landlord. Although, there are some exceptions to this general rule, none of the exceptions have been established by the appellants in this case. Hence, the appellants who were the tenants of the respondents will have to surrender possession to the respondents before they can challenge the title of the respondents.

In plaint as framed by the respondents in the present case, the relief of eviction against the appellants was not based on the title of the respondents. Mr. M. L. Varma, learned senior counsel appearing for the respondents vehemently submitted that on a reading of the plaint, it will appear that the respondents had claimed to be owners of the land. We find that although an averment has been made in the plaint that the respondents were the owners of the suit land, no relief for declaration of title as such has been claimed by the respondents. Only the relief of eviction was sought in the plaint on the ground that the lease had not been renewed after 1986 and the rent had not been paid since 1986. In our considered opinion, therefore, this being not a suit of declaration of title and recovery of possession but only a suit for eviction, the trial court, the first appellate court and the High Court were not called upon to decide the question of title. (State of A.P. and others vs. D. Raghukul Parshad (D) by L.Rs. and others; 2012(5) AWC 4378 (SC)

Sec 20 (4) - Protection form Eviction

Here is a case where the suit was validly instituted for ejectment of the defendant on two grounds and one of them is that the defendant tenant is in arrears of rent for a period more than four months, a fact which is not in dispute. On the contrary, said fact is admitted by the defendant as per his pleading in the written statement. It has been referred above that the defendant-tenant was in arrears of rent since January, 1980 and failed to clear the arrears in spite of notice of demand which led the filing of suit for ejectment in the year 2004. The defendant-tenant cleared the arrears of rent etc. by making the deposit as required under section 20(4) of the Act.

Section 20 (4) of the Act is a paramateria provision and akin to section 114 of the T.P. Act. The same principle will also be applicable herein. The material part of section 20(4) and 114 of the T.P. Act are worded identically which also lends support to the view that discretion vests in the Court not to relieve a tenant against his liability for eviction on the ground of default in payment of rent in appropriate cases. The yardstick to judge an appropriate case would be as laid down by the Apex Court, noted herein above, the conduct of tenant, delay and hardship to which the landlord was put.

It would be clear that in the present case, the trial Court proceeded on the wrong assumption that as soon as the requisite deposit under section 20(4) has been made, the court has no option but to refuse passing of decree of eviction on that ground. Looked from this angle the order of the trial Court is vitiated for the reason that in the case on hand, the tenant has not paid the rent, admittedly, for the last more than two decades. He is enjoying the property on a paltry sum of Rs.1000/- which was fixed in the year 1946 and is earning many times more than that from the property in dispute on his own showing. On the attending facts and circumstances of the case, the rent @ Rs.1, 000/- per month is not a meaningful rent. The reprehensible conduct of the tenant does not entitle him to get equitable relief from the Court but on the condition of enhancement of rent the relief, is being granted. (Ashwani Kumar Kohli vs. Rajesh Prasad Agarwal; 2012 (5) ALJ 146)

S. 21(1) (a) – Release of shop – Bona fide consideration of – Land Lord has right to establish his business – His age would not be bar in considering his bona fide need

Is so far as the release application filed against Sri Satish, another tenant in one of the four shops is concerned, suffice it to say that Satish had not purchased or acquired any vacant shop during pendency of the proceedings nor he had any other alternative shop, as such his case is different. In so far as the question of age is concerned, in view of law laid down by the Court in the case of Jai Raj Agarwal (supra), no further comment is required by the Court in that regard.

Thus, from the perusal of the judgment it is apparent that landlord has a right to establish his business and his age would not be a bar in considering his bona fide need particularly when the tenant has acquired a shop of his own. In such circumstances, even the tenant has to establish his bona fide need for retaining the shop. This has neither been pleaded nor established by the tenant in the instant case. A tenant cannot suggest his landlord what business to do and whether the space required by him shall be sufficient or not. Once Ram Pratap Jaiswal (petitioner No. 7) who himself has filed affidavit in the writ petition as tenant, has acquired a shop of his own in backdrop of the case that he and his son both had become tenant or the death of Smt. Sankari Devi, who inherited tenancy of her father, he cannot claim that the shop under his tenancy cannot be released because his son is in occupation of the said shop. (Anand Kishore and others vs. Lakshmi Kant Shukla and another; 2012(4) AWC 3762)

Ss. 21(1) (a) and 22 – Release of shop decreed – Appeal dismissed – Writ petition – Legality of

The petitioner is the owner and landlord of the shop in dispute along with Pucca Chabutra. The petitioner filed a release application under Section 21(1) (a) of the U.P. Act No. 13 of 1972 (in short “Act”) on the ground that at the time when the shop in dispute was let out to the Respondent No. 2 he was only 27 years of age and he used to sell utensils as a hawker without any requirement of a fixed shop.

As a hawker he used to go from door to door to sell the utensils. However, since the petitioner was suffering from appendicitis, he was operated upon and was advised to do only light work and not to carry and load especially while walking. As a result of which, the petitioner became incapable to carry on his business by hawking and therefore required the shop in dispute for carrying on business from the fixed place. It was further pleaded in the release application that his family consists of self, wife and four children and has to support his entire family from his utensils aged about 70 years. His father has been assisting his younger brother in the shop, who is carrying on his independent business. The petitioner is living separately and he has no concern with the business of his father/brother.

It was pleaded in the release application that the Respondent No. 2 was carrying on a business of cloth on a small scale from the shop in dispute. It was further pleaded that the Respondent No. 2 has two sons and since both of them are employed, the Respondent No.; 2 is not at all likely to suffer any hardship in case the disputed premises is vacated by him. It was specifically mentioned in the said application that the petitioner will utilize the shop in dispute after its vacation by the Respondent No. 2 only for the purpose of establishing himself in business.

The Respondent No. 2 filed his written statement denying and disputing the allegations made in the release application. It was stated in the written statement that the petitioner, his brothers and father were living together and the petitioner who is already in possession of a shop is carrying on business of utensils with the help of his brother. It was also pleaded that the petitioner was not operated upon for appendicitis.

The prescribed authority after careful appreciation of entire evidence available on record vide its judgment and order dated 30.8.1985 allowed the release application of the petitioner and also held that the need of the petitioner to be genuine and bonafide and found the balance of comparative hardship in favour of the petitioner.

Being aggrieved and dissatisfied with the judgment and order dated 30.8.1995, the Respondent No. 2 preferred an appeal under Section 22 of the U.P. Act No. 13 of 1972 (in short “Act”). The said appeal was allowed. Hence, the present writ petition.

The prescribed authority has very specifically recorded a finding that the petitioner after being operated for appendicitis was unable to carry on the business by hawking on public street and also that the petitioner does not have any other source of income. It further held that the petitioner had to support his entire family. There are a number of vacant shops in the vicinity which can be taken on rent by the Respondent No. 2. The Prescribed Authority had recorded the findings of fact holding the need of the petitioner to be bonafide and genuine and found the comparative hardship in his favour. The said findings are based on the evidence available on record. The Prescribed Authority has given cogent, convincing and satisfactory reason while passing the order in favour of the landlord. The findings recorded by the Prescribed Authority are neither perverse nor based on any extraneous or irrelevant material. The Prescribed Authority has non meticulous evaluation of evidence and material available on the record, found the need of the petitioner to be bonafide and genuine.

The reasons assigned by the appellate court are superficial and it has applied a very casual approach and has committed manifest error of law and procedural illegality. The impugned order passed by the appellate court is based on complete misreading of the case and misconception of the legal position relevant to the matter. The appellate court had drawn inferences only on the basis of speculation and the impugned order looked from any angle cannot stand the scrutiny of law. The findings recorded by the prescribed authority with regard to bonafide need and comparative hardship in favour of the petitioner are upheld.

It is true that in writ jurisdiction the Court would be reluctant to interfere in the finding of fact given by the Appellate Court but it the Appellate Court has arrived at such a finding on wrong legal assumption or approach the said finding would not be conclusive finding of fact. In the instant case, the Appellate Court has overlooked several facts and had drawn a conclusion which is not at all supported by any evidence on record and the said conclusion would not, therefore, amount to a finding of fact but in fact it would be an illegality in its approach. Thus, the findings of the appellate court appear to be manifestly unjust and erroneous. (Jan Mohammad v. Special Judge & Another; 2012 (2) ARC 791 (All HC)

S. 29 – Provisions under – Applicability of

A bare perusal of Section 29 sub-section (1), (2) and (3) clearly shows that it protect interest of tenant where building was under his tenancy, wholly or partly, has been destroyed for the reasons not attributable to the tenant. It has conferred a right upon him to get it reconstructed wholly or partly, as the case may be, at his own expenses. Sub-section (3) further says, that, where such a reconstruction has been made by the tenant in exercise of power under Sub-section (1) and (2), such reconstruction shall not be treated to be new construction and therefore exemption under Section 2(2) of the Act, 1972 shall not be applicable to such reconstructed building. However, the entire Section 29 nowhere talks of a situation where the building under tenancy has been reconstructed by the landlord himself at his own expenses.

In view of Court, Section 29 of Act, 1972 would have no application at all and it shall not be attracted where for any reason whatsoever a building has been damaged, partly or wholly, and the same has been reconstructed by the landlord himself incurring his own expenses. In that circumstance, applicability of Act, 1972 will have to be considered by excluding Section 29.

The view, Court have taken here at, may at first flush appears to be slightly hard to those tenants who have suffered on account of a building under their tenancy destroyed, wholly or partly, for the reasons not attributable to them that is mentioned in sub-section (1) and (2) of Section 29 of Act, 1972 but reconstruction/new construction has been made by landlord voluntarily.

Legislative intention in enacting Section 29 of Act, 1972 appears to be that tenant, it has incurred substantial expenses in construction of a building under his tenancy, damaged for certain reasons for which he is not responsible, such a tenant after incurring substantial expenses should not be allowed to be ejected without enjoying property for a reasonable time after its reconstruction. However, where the landlord himself has constructed the building, that situation does not arise. It further recognizes the principle that destruction of property under tenancy would have the consequence of destruction of lease, and, relationship of landlord and tenant would disappear immediately thereupon. Section 29 of Act, 1972 in fact is an exception to the said principle giving an option left with the tenant or lessee to continue with the lease by getting the destroyed building reconstructed incurring his own expenses but when the tenant has not exercised such option and building is constructed again by landlord himself, tenant cannot claim either continuance of lease rights or a kind of right of re-entry therein by relying upon Section 29 of Act, 1972 which does not contemplate a situation where construction has been made after destruction of building under tenancy wholly or partly, cost of which has been incurred by the landlord. (Fazal Ahmad Khan v. XIVth ADJ & Others; 2012 (3) ARC 345 (All HC)

Sec. 30(2) - Deposit of Rent in Court - Validity of

It would be appropriate to quote Section 30(2) of the Act which runs as under:

“30(2) Where any bona fide doubt or dispute has arisen as to the person who is entitled to receive any rent in respect of any building, the tenant may likewise deposit the rent stating the circumstances under which such deposit is made and may, until such doubt has been removed or such dispute has been settled by the decision of any competent court or by settlement between the parties, continue to deposit the rent.”

The aforesaid provision clearly stipulates that where any bona fide doubt or dispute has arisen as to the person who is entitled to receive any rent in respect of any building, the tenant may likewise deposit the rent stating the circumstances under which such deposit is made and may, until such doubt has been removed or such dispute has been settled by the decision of any competent court or by settlement between the parties, continue to deposit the rent.

In view of the aforesaid provisions, the petitioner had rightly deposited the rent in the court under section 30(2) of the Act as bonafide doubt had arisen as to the person who was entitled to receive rent in respect of the building in dispute. It is also noteworthy that the suit for arrears of rent and ejectment was filed within a month after receiving a reply to the notice issued under Section 106 of the T. P. Act by the respondent. (Dinesh Chandra Joshi vs. Meera Devi; 2012(5) ALJ 128)

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Workmen’s Compensation Act

S. 4-A(3) - Interest Liability of Insurance company whether ‘insurance company is liable for payments of interest of the amount of compensation- held, “Yes”

In present case Court has …

“(i) whether the Commissioner, Workmen’s Compensation, has committed an error of law in not holding the respondent No. 2, insurance company, liable for payment of interest on the amount of compensation from the date of accident till its realization as per section 4-A(3) of the workmen’s Compensation Act 1923?”

In respect of payment of interest the issue has been decided by the Apex Court in the case of Ved Prakash Garg v. Premi Devi; 1998 ACJ 1 (SC), therefore, insurance company is liable to pay the interest to the claimants. (Basantabai & another v. Shamim Bee & another 2012; ACJ 1858)

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Words & Phrases

“Cognizance”—Meaning of

The expression “cognizance” in Sections 190 and 204 CrPC is entirely a different thing from initiation of proceedings; rather it is the condition precedent to the initiation of proceedings by the Magistrate or the Judge. Cognizance is taken of cases and not of persons. Under Section 190 CrPC, it is the application of judicial mind to the averments in the complaint that constitutes cognizance. At this stage, the Magistrate has to be satisfied whether there is sufficient ground for proceeding and not whether there is sufficient ground for conviction. Whether he evidence is adequate for supporting the conviction can be determined only at the trial and not at the stage of enquiry. If there is sufficient ground for proceeding then the Magistrate is empowered for issuance of process under Section 204 CrPC. (Bhushan Kumar vs. State (NCT of Delhi), (2012) 2 SCC (Cri) 872)

“Custody”— Meaning of

Firstly speaking about the formal arrest, for the accused being in custody of the investigating agency he need not have been formally arrested. It is enough if he was in custody of the investigating agency meaning thereby his movements were under the control of the investigating agency. A formal arrest is not necessary and the fact that the accused was in effective custody of the investigating agency is enough. It has been amply proved that the accused was apprehended, searched and taken into custody. (Mohd. Arif @ Ashfaq vs. State (NCT of Delhi); (2012) 2 SCC (Cri) 766)

“Grave” and “sudden provocation”— Meaning of

The expression “grave” indicate that provocation be of such a nature so as to give cause for alarm to the appellant. “Sudden” means an action which must be quick and unexpected so far as to provoke the appellant. The question whether provocation was grave and sudden is a question of fact and not one of law. Each case is to be considered according to its own facts. (Sukhlal Sarkar vs. Union of India & others; (2012) 2 SCC (Cri) 732)

“Loss of estate” and “loss to the estate” - Distinction Explained

There is a fundamental distinction between “loss of estate”, and “loss to the estate”. This is highlighted in Chairman, Andhra Pradesh State Road Trans. Corpn. v. Shafiya Khatoon, 1985 ACJ 212 (AP). In para 10, it is held that loss of ‘benefit to the estate’ of the deceased is the loss arising to the estate under the heads of mental and physical pain, loss of expectation of life and loss of amenities. The said amounts are payable of the legal heirs under the provisions of the Legal Representatives suits Act, 1855 read with section 306 of the Indian Succession Act, 1925. Section 1-A of the Fatal accidents Act deals with the right of legal heirs to claim compensation as referred to therein. (Omana and others v. Francis Edwin and others; 2012 ACJ 1765)

Malice in law – Meaning of

In brief malice in law is when a power is exercised for an
unauthorized purpose or on a fact which is claimed to exist but in fact, is non-est or for the purpose for which it is not meant though apparently it is shown that the same is being exercised for the purpose the power is supposed to be exercise. (Mohammad Maroof vs. State of U.P. and others; 2012(4) AWC 3729)

“Negligence” – Negligence means more than headless or careless conduct, whether in omission or commission

Negligence is conduct, not a state of mind – conduct which involves an unreasonably great risk of causing damage. Negligence is the omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do. In strict legal analysis, negligence means more than heedless or careless conduct, whether in omission or commission. It properly connotes the complex concept of duty, breach and damage thereby suffered by the person to whom the duty was owing. It is a question of law whether in any particular circumstance a duty of care exists. (North East Karnatak Road Trans. Corpn. v. Vijayalazmi and others; 2012 ACJ 1968)

“Summon”—Meaning of

A “summons” is a process issued by a court calling upon a person to appear before a Magistrate. It is used for the purpose of notifying an individual of his legal obligation to appear before the Magistrate as a response to violation of law. A person who is summoned is legally bound to appear before the court on the given date and time. Wilful disobedience is liable to be punished under Section 174 IPC. It is a ground for contempt of court.

Section 204 CrPC does not mandate the Magistrate to explicitly state the reasons for issuance of summons. Section 204 CrPC mandates the Magistrate to form an opinion as to whether there exists a sufficient ground for summons to be issued but it is nowhere mentioned in Section 204 that the explicit narration of the same is mandatory, meaning thereby that it is not a prerequisite for deciding the validity of the summons issued. Therefore, the order passed by the Magistrate cannot be faulted with only on the ground that the summoning order was not a reasoned order. (Bhushan Kumar vs. State (NCT of Delhi); (2012) 2 SCC (Cri) 872)

(i) Sterling witness – Meaning of.

A “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.

(ii) Substantial cause - Meaning

The inadvertence of the party or his inability to understand the legal issues involved or the wrong advice of a pleader or the negligence of a pleader or that the party did not realize the importance of a document does not constitute a “substantial cause” within the meaning of this Rule. The mere fact that certain evidence is important, is not in itself a sufficient ground for admitting that evidence in appeal.

(iii) Substantial question of law and question of fact – Meaning of

“13. …… The word ‘substantial’ prefixed to ‘question of law’ does not refer to the stakes involved in the case, nor intended to refer only to questions of law of general importance, but refers to impact or effect of the question of law on the decision in the lis between the parties. “Substantial questions of law’ means not only substantial questions of law of general importance, but also substantial question of law arising in a case as between the parties , ……… any question of law which affects the final decision in a case is a substantial question of law as between the parties. A question of law which arises incidentally or collaterally, having no bearing on the final outcome, will not be a substantial question of law. ……There cannot, therefore, be a straitjacket definition as to when a substantial question of law arises in case.”

There may be a question, which may be a “question of fact”, “question of law”, “mixed question of fact and law” and “substantial question of law”, Question means anything inquired; an issue to be decided,. The “question of fact” is whether a particular factual situation exists or not. A question of fact, in the realm of jurisprudence, has been explained as under:

“A question of fact is one capable of being answered by way of demonstration. A question of opinion is one that cannot be so answered. An answer to it is a matter of speculation which cannot be proved by any available evidence to be right or wrong.”

(Union of India Vs. Ibrahim Uddin & another; (2012) 8 SCC 148)

(iv) “Torture”, “Harassment”, “Inhuman torture”, “Mental and Psychological torture”

The term “harassment” in its connotative expanse includes torment and vexation. 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. Police officers should have the greatest regard for personal liberty of citizens as they are the custodians of law and order and, hence, they should not flout the law by stooping to bizarre acts of lawlessness.

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Statutory Provisions

Ministry of Law and Justice (Deptt. of Legal Affairs), noti N. G.S.R. 904(E), dated December 27, 2011, published in the Gazette of India, Extra, Part, II, Section 3(1), Dated 27^th December, 2011, pp.3-4, no.689

[F.No.A-60011/16/2010-Admin.1 (LA)[L]

In exercise of the power conferred by the proviso to article 309 of the Constitutions, the president hereby makes the following rules further to amend the Indian legal Service Rules, 1957, namely—

1. (1) These rules may be called the Indian Legal Service (Amendment) Rules, 2011

(2) They shall come into force on the date of their publication in the official Gazette.

2. In the Indian Legal Service Rules, 1987—

(a) In Rule 8, in sub-rule (1), for clause (iv) and the Note there under, the following shall be substitute, namely—

“(iv) to a duty post in Grade IV, unless he has held one or more post specified in the third schedule; and—

‘possesses six years’ regular service in post of the Superintendents (Legal) (PB-2 Rs 9300-34,800 plus Grade pay of Rs 4800) failing which eight years’ combined regular service in the post of Assistant (Legal) (PB-2 Rs 9300-34,800 Plus Grade Pay of Rs 4600) and Superintendent (Legal) (PB-2 Rs 9300-34,800 Plus Grade Pay of Rs 4800) out of which three years regular service shall be in the post of Superintendent (Legal);

‘Possesses seven years’ regular service in the post of Junior Central Government Advocate/librarian Grade-1 (PB-2 Rs 9300-34,800 Plus Grade Pay of Rs 4600):

provided that for promotion to a duty post in Grade- IV in the Government Advocate Service Cadre in the Department of Legal Affairs, the person shall be eligible for enrolment as an advocate in the Supreme Court under the Supreme Court Rules, 1966, as amended from time to time, and for registration as an Advocate-on-Record of that court under the said rules.

Note 1.- In the case of officers who are holding any of the posts mentioned in the Third Schedule on regular basis on the date of commencement of the Indian Legal Service (Amendment) Rules, 1987, the eligibility service for promotion to posts in Grade IV shall be three years’ regular service in the feeder grade.

Note 2.- Where juniors who have completed their qualifying or eligibility service are being considered for promotion, their seniors shall also be considered provided they are not short of the requisite qualifying or eligibility service by more than half of such qualifying or eligibility service for two years, whichever is less, and have successfully completed their probation period for promotion to the next higher grade along with their juniors who have already completed such qualifying or eligibility service.

Note 3.- The eligibility list for promotion to the grade of Assistant Legal Adviser shall be prepared with reference to the date of completion of the prescribed qualifying service by the officers in the respective grade of post.’’

(b) in the Third Schedule, under the heading “Legislative Department”, the words “and Confidential Superintendent” shall be omitted.

Ministry of Home Affairs, Noti. No. S.O. 62 (E), dated January 12,2012, published in the Gazette of India, Extra., Part II, Section 3(ii), dated 12^th January, 2012, pp.1-2, No. 53

[F. No. 11011/124/2011-NE-V]

Whereas, (The Unlawful Activities (Prevention) Act, 1967 37 of 1967) (hereinafter referred to as the said Act) has been enacted to provide for more effective prevention of certain unlawful activities of individuals and associations and for dealing with terrorist activities and for matters connected therewith;

2. And whereas, clause (m) of Section 2 of the said Act defines the terrorist organisation to mean an organisation listed in the Schedule or an organization operating under the same names as an organisation so listed;

3. and whereas, the Schedule to the said Act specifies the list of terrorist organisations;

4. And whereas the Garo National Liberation Army (GNLA), a militant outfit of Garo Hills, which came into existence in early 2010 has been consolidating its position in the three Garo Hills Districts both organisationally and in terms of weapons and cadres and to achieve the objective of a separate Garo State, the outfit is resorting to terrorism in the from of killing of innocent civilians and security forces in addition to engaging in other violent activities like physical assault on Government employees, lobbing grenades in Government buildings and other violent activities and extortions.

5. and whereas, the Central Government believes that the Garo National Liberation Army (GNLA) is involved in terrorism;

6. Now, therefore, in exercise of the power conferred by clause (a) of sub-section (1) of Section 35 of the Unlawful Activities (Prevention) Act, 1967, the Central Government hereby makes the following to add the Garo Naitional Liberation Army (GNLA) and all its formations and front organisations as terrorist organisation in the Schedule to the said Act and for the said purpose makes the following amendments, namely—

In the Schedule to the said Act, after Serial Number 35 and the entries relating thereto, the following serial number and entries shall be inserted, namely—

“36 Garo National Liberation Army (GNLA), all its formations and front organization.”

Ministry of Women and Child development, Not. No. G.S.R 903(3), dated December 26, 2011, published in the Gazette of India, Extra., Part 11, Section 3(i), dated 27^th December, 2011,, p.2, No. 688

[F. No. 1-2/2004/-CW.II][L]

In exercise of the powers conferred by the proviso to sub-section (1) of the Section 68 of the Juvenile Justice (Care & Protection of Children) Act, 2000 (56 of 2000), the Central Government hereby makes the following rules to amend the Juvenile Justice (Care and Protection of Children) Rules, 2007, namely—

1- Short title and commencement. – (1) These rules may be called the Juvenile Justice (Care and Protection of Children) Amendment Rules.

(2) They shall come into force on the date of their publication in the Official Gazette.

2. In the Juvenile Justice (Care and Protection of Children) Rules, 2007 (Hereinafter referred to as the principal rules), in Rule 45, for clause (p), the following clause shall be substituted, namely—

“(p) refer such children who are addicted to alcohol or other drugs which lead to behavioral changes in a person, to an Integrated Rehabilitation Center for Addicts similar centers maintained by the State Government for mentally ill persons (including the persons addicted to any narcotic drug or psychotropic substance) for the period required for in-patient treatment of such juvenile or child.”

3. In Rule 46 of the principal rules, for sub-rule (10), the following sub-rule shall be substituted, namely—

“(10) no juvenile or child shall be administered medication for psychiatric problems without a psychological evaluation and diagnosis by a trained medical health professional.”

4. In Rule 61 of the principal rules,--

(a) in sub-rule (1), for the words “mental health problems requiring prolonged medical treatment, or is found addicted to a narcotic drug or psychotropic substance”, the words “psychiatric problems requiring prolonged medical treatment, or is found addicted to alcohol or other drugs which lead to behavioral changes in a person: shall be substituted:

(b) In sub-rule (2), for the words “mental health” the word “psychiatric”, shall be substituted;

(d) in sub-rule (4), the words “and infection” shall be omitted.

English Translation of Nyaya Anubhag-2 (Adhinashth Nyayalaya), Noti. No. 175/VII- Nyaya-2-2012-201G-95T.C-4, dated April 17, 2012, published in the U.P. Gazette, Extra, Part 4, Section (Kha), dated 17^th April, 2012, p.2 [A.P. 30]

In exercise of the powers under Section 13 of the Code of Criminal Procedure, 1973 (Act No. II of 1974), read with sub-rule (ii) of Rule 4 of the Uttar Pradesh Petty Offences Trial by Special Judicial Magistrates Rules and Section 21 of the General Clauses Act, 1897 (Act No. X of 1897), the Governor on the recommendation of the High Court of Judicature at Allahabad, is pleased to make, the following amendment in Government Notification No. 1063/VII-Nyaya-2-2010-201G-95, dated July 26, 2010, No. 662/VII –Nyaya-2-2011-201G-95, dated July 28, 2011 and No. 1348/VII-nYAYA-2-2011-201G-95, dated August 30, 2011—

AMENDMENT

In the schedule to the aforesaid notification, dated July 26, 2010 the entries appearing at Serial No. 8, notification, dated July 28, 2010 the entries appearing at Serial No. 4 and notification, dated August 30, 2011 the entries appearing at Serial No. I shall be omitted.

High Court of Judicature at Allahabad, Not. NO. 1475/VII-Nyaya-2-2011-83G-2011, dated April 16, 2012, published in the U.P. Gazette, Extra., Part 4, Section (kha), dated 16^th April, 2012, pp. 1-2

The General Rules (Civil), 1957 Vol. I (Correction Slip No. 119) framed by the High Court of Judicature at Allahabad in exercise of the powers conferred by Article 227 of the Constitution of India and Section 122 of the Code of Civil Procedure, 1908 read with Section 21 of the General Clauses Act, 1897 are hereby published for the general information—

In exercise of the powers conferred by Article 227 of the Constitution of India and Section 122 of the Civil Procedure code, 1908 read with Section 21 of General Clauses Act, 1897, the High Court of Judicature at Allahabad with the previous approval of the Government of Uttar Pradesh, is pleased to make the following amendment in General Rules, (Civil), 1957 Vol. I with effect from the date of their publication in the official Gazette of Uttar Pradesh,

Amendment in Rule 615—Rule 615 of the rules shall be amended as follows—

(1) The existing provisions of Rule 615 of the rules shall be numbered as sub-rule (1)

(2) After the existing Rule 615, numbered as sub-rule (1), following sub-rule (2) shall be added—

“(2) The Readers / Peshkars, Executive Assistants / Stenographers and employees of Class IV cadre in the Courts Subordinate to the High Court of Judicature at Allahabad shall wear Uniform / Costumes as indicated below:

(i) Readers/Peshkars, Executive Assistants/Stenographers shall wear black Coat with black neck Tie or a buttoned up black Coat, Sherwani or Achkan with shirt and trousers or Paijama of sober colour. The ladies can wear traditional white Sari and Blouse or Shalwar suit etc. in place of Shirt/trousers along with coat.

(ii) All the Class IV employees in the Courts shall wear white buttoned up Coat, Sherwani or Achkan with white trouser or Paijama in summer and woollen buttoned up Coat of Navy blue colour in winter. The Ladies can wear traditional white Sari with Blouse or shalwar suits along with Coat:

Provided that the orderlies attached with the Presiding Offices of the courts shall in addition wear cap or turban along with belt with Monogram of the Judgeship:

Provided further that the drivers shall wear white coat in summer and wollen Navy blue colour coat in winter with Badge/Monogram of the Judgeship and a felt cap.”

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Legal Quiz

Q. 1 Offence committed u/s. 363, 366, 504 and 506 I.P.C. after investigation I.O. submitted charge-Sheet. But after taking evidence u/s 164 Cr.P.C. I.O. has obtained order u/s 173 for further Investigation. After investigation I.O. has now submitted final report in the same case. Accused has prayed to the Court for inclusion of charge-sheet in this case. The main question of P.O. is that what appropriate order should be passed in this case?

Ans. Pertaining to section 173(2), 173(8) and 190 Cr.P.C. relating to cognizance of offence where the police has submitted final report after further investigation, whereas earlier cognizance is taken by the Magistrate on the charge sheet submitted by police in the same case.

It is to inform you that a Magistrate is not bound by the conclusions drawn by investigating officer during investigation. It is clearly held by Supreme Court, in Dharmatma Singh vs. Harminder Singh & Ors 2011 (74) ACC 266 SC that “where the police report forwarded to the Magistrate under section 173(2) of the Cr.P.C. states that a person has committed an offence, but after investigation the further report under section 173(8) of the Cr.P.C. states that the person has not committed the offence, it is for the Magistrate to form an opinion whether the facts, set out in the two reports, make out an offence committed by the person.” Further case laws referred:-

(1) Gangadhar Janardhan Mahatre vs. State of Maharashtra (2004) 7 SCC 768.

(2) State of Orissa vs. Habibullah Khan (2003) 12 SCC 129.

(3) Jagdish Ram vs. State of Rajashthan AIR 2004 SC 1734.

(4) H.S. Bains vs. State AIR 1980 SC 1883.

(5) Mahendra Pal Sharma vs. State of U.P. 2003 Cr.LJ. 698.

(6) Mahesh Chand vs. State of Rajasthan 1985 Cr.LJ 301 (Raj.).

(7) Suresh Kumar Thakur vs. Smt. Dropadi Devi 1977 Cr.LJ. NOC 133.

(8) State of Karnataka vs. Papi Reddy (1988) 2 Crimes 194.

(9) Sukha Ram vs. State 2007 Cr.LJ. 644 Raj.

(10) Tarkashwar Singh vs. State of Bihar 2007 CrLJ. 1281.

(11) Minu Kumari vs. State of Bihar AIR 2006 SC 1937.

(12) Ram Naresh Prasad vs. State of Jharkhand (2009) 11 SCC 299.

(13) District Manager F.C.I. vs. Jayashankar 1989 Cr.LJ. 1578.

(14) Dinesh Dalmia vs. C.B.I. (2007) Orissa 8 SCC 770.

(15) State of U.P. vs. Har Pal Singh 1982 Cr.LJ. 881 All.

(16) Abhinandan Jha and others v. Dinesh Mishra AIR 1968 SC 117.

Q. 2 Whether u/s 372 of the Indian Succession Act 1925 the succession can be granted for bank locker also?

Ans. For above query, The Hon’ble Calcutta High Court, Hon’ble Chhatisgarh High Court & Hon’ble Madhya Pradesh High Court in the following cases have held that for access to Bank locker or to receive ornaments kept in safe deposit locker in the Bank, same not being a debt or security within meaning of S. 370, Succession certificate cannot be granted.

1. AIR 1982 Cal. 92; State Bank of India v. Netai Ch. Porel (DB)

2. AIR 2007 Chh. 36; Bimla Devi v. Shobha Wali

3. AIR 1997 MP 196; Sharda Chopra v. State Bank of India

4. AIR 1991 Cal. 128; Rama Chakraborti v. Manager, Punjab Nation Bank (Para 11 12)

Q. 3 D;k dysDVªsV ds fjdkMZ :e esa U;k;ky; dh fu.khZr dh x;h i=kofy;ka U;k;ky; ds vfHkys[kkxkj esa LFkku vHkko ds dkj.k yh tk ldrh gSA

Ans. I intend to inform you that the query is related to Rule 108 of General Rule (Criminal) and Circular No. C.E. No. 44 dated 21^st April, 1969, which are self explanatory. It is therefore advised that the relevant rule & circular order be applied accordingly.

Q. 4 ¼v½ ;fn ;w0ih0 ,DV la.&13 lu~ 1972 dh /kkjk&30 ¼1½ ds v/khu fjk;k tek jdus ds fy;s izkFkZuk i= ds uksfVl dh rkehy edkunkj ij gks x;h gks rFkk edkunkj bl felysfu;l okn esa mifLFkfr gqvk gks o O;fDrxr :I ls fdjk;k yus dh ckr dgs fdUrq fQj Hkh fdjk;snkj /kkjk&30¼1½ ds vUrxZr gh fdjk;k tek ds rks D;k ;g oS/k tek gksxk?

¼c½ ;fn /kkjk 30¼1½ ds v/khu i’pkrorhZ fdjk;k tek djrs le; ;w0ih0 ,DV 13 lu~ 1972 dh fu;ekoyh ds fu;e 21 mi fu;e ¼5½ ds v/khu uksfVl fn;s fcuk fdjk;k tek fd;k tkrk gS rks D;k ;g oS/k tek gksxkA

¼l½ ;fn csn[kyh dk ckn yfEcr jgrs gq;s fdjk;snkj fdjk;k csn[kyh ds ckn es tek ugha djrk vfirq /kkjk 30¼1½ ds v/khu tek djrk gSA rFkk mldh izfrj{kk lekIr ugh dh x;h gSA rks D;k bl vk/kkj ij mls csn[kyh fd;s tkus dk vkns’k ikfjr fd;k tk ldrk gS

Ans. Answer to Query No. 1:- When a notice is given by land lord to tenant to accept rent, any amount deposited thereafter u/s 30(1) of Act No. 13 of 1972, cannot be taken for the benefit of tenant. Please see following case lawas on the points:

(1) Ram Prasad Vs. VIII A.D.J., Merrut, 1992 A.L.J. 974

(2) Bhola Nath Gupta Vs. Special Judge & Others, 2008 (1) A.L.J. (NOC) 21 All.

(3) Sushil Kumar Srivastava v. IVth ADJ, Gorakhpur, 2005 (3) A.L.J. 2004

Answer to Query No. 2:- The purpose of deposit of process fee and notice in form “F” is to give notice of the deposit to the land lord, if tenant fails to take necessary steps as per sub Rule (4) of R. 21, the application shall be rejected and amount be refunded to the tenant. For treating the deposit u/s 30 as valid deposit to absolve the tenant from the risk of the default in payment of rent, the provisions of R. 21 should be complied strictly. For depositing of amount subsequent to the first deposit process fee and notice in form “F” is necessary and mandatory requirement. Please see following case laws on the point:

1. Chameli Devi v. IV ADJ Pilibhit, 2003 A.R.C. 788

2. Pashupati Singh Vs. Ist A.D.J., 1981 A.R.C. 222

3. Hari Shanker Kapoor v. 2^nd ADJ, 1985 ARC (1) 260

4. Chhotey Lal Vs. XIV A.D.J., Kanpur, 1994 AWC 813

Answer to Query No. 3:- In Khursheed Begum v. ADJ, Varanasi, 2004 (1) ARC 269, it is held that after knowledge of pendency of suit for ejectment, a tenant cannot continue to deposit rent under S. 30 of the Act.

However, in Ram Praksh Mishra v. IV ADJ, Etah, 1999 (1) ARC 7, Buniyad Hussain v. Raj Kumari; 1999 (1) ARC 384, Pyare Miyan v. VIII ADJ, Bareilly; 1999 (2) ARC 756, Chaudhary Badridas v. ADJ, Dehradun, 2000(3) AWC 2229 , Kailash Chand v. III ADJ, Jalaun, 1999 (1) AWC 302 deposit made by tenant under S. 30(1) of the Act, which was well above the demand in ejectment suit, was held good deposit.

Q. 5 tgka ;FkkfLFkfr vksn’k (Status quo) ds vuqikyu ds fy, iqfyl lgk;rk vUrxZr /kkjk 151 lh-ih-lh- iznku dh x;h gks ogka ,slh iqfyl lgk;drk ij gksus okyk O;; D;k lEcfU/kr i{kdkj }kjk ogku fd;k tk;sxk ;k fu’kqYd :i esa mls iqfyl lgk;rk iznku dh tk;sxhA

Ans. It is stated that police help is an extra ordinary measure or procedure to step implement the execution of the order. In other words, it is to be regarded as an extreme where the court is convinced of the existence of a grave emergency. As a General Rule the expenses of the Police Aid or help in carrying out the execution of an injunction order passed by a civil court is on a party who has applied for the same. However, there can be an exception to it and a decision to this effect will have to be taken keeping in view all the facts and circumstances of a particular case.

Further Case Laws referred:

1. AIR 1995 Bom 61- Ratna v. Satwa Rao

2. AIR 2004 Bom 225 Neerabai J. Patil v. Narayan D. Patil

3. AIR 2002 Cal 91- STP Ltd. v. Nirmal Jeet Singh

4. AIR 1993 Ker 62 –Kochupennu Ambuj Akshj v. Veluthakunju Vasu Challar

5. AIR 1999 Raj 6- Mango Lal v. Ichku Devi

6. AUR 1983 Cal 266 –Sunil Kumar v. Nishikanta

7. AIR 1984 Raj 98- Ganga Ram v. Devi Singh

8. AIR 1986 Cal 220- Sujit Pal v. Pravir Kumar Son (DB)

9. 2006(3) AWC 2600- Smt. Jagannithia v. State of U.P. & Ors, (DB)

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