Hon’ble Mr. Justice
Bhanwar Singh
Chairman
[Patron]
EDITOR-IN-CHIEF
U.S.
Awasthi
Director
EDITOR-IN-CHARGE
ANUPAM
GOYAL, Additional Director (Research)
EDITORS
P.K. SRIVASTAVA,
Additional Director
Dr.
RAJESH SINGH, Additional Director (Administration)
RAJEEV
BHARTI, Additional Director (Training)
MAHENDRA
SINGH, Dy. Director
PUSHPENDRA SINGH, Dy. Director
AKHILESHWAR PRASAD MISHRA, Dy. Director
RAVINDRA
KUMAR DWIVEDI, Dy. Director
FINANCIAL ADVISOR
SARAN
PIARIE VARMA
Additional Director (Finance)
ASSOCIATES
B.K.
MISHRA, Research Officer
WEB
ASSISTANCE
PRAVEEN SHUKLA, Computer Supervisor.
Arbitration Act
S. 30 and Sch. 1—Cl. 7-A (since
repealed)—Award of interest—Validity of
In the present case, the
interest has been awarded at the rate of 16 per cent on principal
sum from the date of commencement of arbitration till the date of
award i.e. 12.9.1992. This is covered by second contingency referred
above where the rate of interest find reasonable by
Arbitrator/Umpire can be allowed. For subsequent period Arbitrator
has awarded interest at the rate of 6 per cent. The aforesaid
interest thus is in conformity with Clause 7-A of “First Schedule”
of Act, 1940 as inserted by Act, 1976.
In B.V. Radha Krishna vs. Sponge
Iron India Ltd. 1997 (1) Arb 412 : (AIR 1997 SC 1324), the Apex
Court upheld the award of an Arbitrator granting interest by
referring to Section 3 of Interest Act, 1978. However, for this
Court it is not necessary to refer any other Statute for the reason
that by virtue of amendment in the Act, 1940 in the State of U.P.,
in First Schedule, the provision for interest has been made one of
the implied conditions of agreement and therefore the award granting
interest strictly in accordance with Clause 7-A cannot be said to be
illegal. The Appellate Court, therefore, has rightly upheld the
award granting interest.
In view of above discussions and exposition of law, this
Court has no hesitation in observing that Trial Court erred in
interfering with the findings of Arbitrator as if it was sitting in
appeal and Appellate Court has rightly allowed the appeal restoring
the award and making it rule of the Court by rejecting the
objections. (State of U.P. vs. M/s. Ram Pal Singh; 2012 (5) ALJ
720)
BACK TO INDEX
Arbitration and Conciliation Act
Section 11(6) – Powers and functions of
the Chief Justice or his designate – Adjudicatory and judicial –
Cannot be exercised in piecemeal manner
The
exposition of law by a seven Judge Bench of this Court in SBP & Co.
2, leaves no manner of doubt that the procedure that is being
followed by the Calcutta High Court with regard to the consideration
of the applications under Section 11 of the 1996 Act is legally
impermissible. The piecemeal consideration of the application under
Section 11 by the Designate Judge and another Designate Judge or the
Chief Justice, as the case may be, is not contemplated by Section
11. The function of the Chief Justice or Designate Judge in
consideration of the application under Section 11 is judicial and
such application has to be dealt with in its entirety by either
Chief Justice himself or the Designate Judge and not by both by
making it a two-tier procedure as held in Modi Korea
Telecommunications Ltd. 1. The distinction drawn by the Division
Bench of Calcutta High Court in Modi Korea Telecommunications Ltd.1
between the procedure for appointment of arbitrator and the actual
appointment of the arbitrator is not at all well founded. Modi Korea
Telecommunications Ltd.1 to the extent it is inconsistent with SBP &
Co.2 stands overruled. (Hindustan Copper Ltd. vs. Monarch Gold
Mining Co. Ltd.; 2012(7) Supreme 415)
S. 31(5) - Delivery of the signed award
to the party is mandatory
The view taken in Pushpa Devi Bhagat’s case is in relation to the
authority given to an Advocate to act on behalf of a party to a
proceeding in the proceedings itself, which cannot stand satisfied
where a provision such as Section 31 (5) of the 1996 Act is
concerned. The Said provision clearly indicates that a signed copy
of the Award has to be delivered to the party. Accordingly, when a
copy of the signed Award is not delivered to the party himself, it
would not amount to compliance with the provisions of Section 31(5)
of the Act. The other decision cited by Mr. Ranjit Kumar in
Nilakantha Sidramappa Nigshetti’s Case was rendered under the
provisions of the Arbitration Act, 1940, which did not have a
provision similar to the provisions of Section 31(5) of the 1996
Act. The said decision would, therefore, not be applicable to the
facts of this case also. (Benarsi Krishna Committee & Ors. V.
Karmyogi Shelters Pvt. Ltd.; 2012 (7) Supreme 140)
BACK TO INDEX
Civil Procedure Code
S. 9 – Electricity Act, S. 145 – Bar to
Civil Court’s jurisdiction – Applicability – Suit raising dispute
regarding payment of bill and disconnection of electricity –
Aggrieved party can move to appellate authority under revisions of
Act of 2003 – Civil suit filed by party not maintainable in view of
bar to Civil Court’s jurisdiction as provided under S. 145 of Act
In the present case, the
suit of the plaintiff was itself not maintainable as there was an
express bar and, therefore, the matter was liable to be dismissed in
view of Section-9, Code of Civil Procedure, therefore, this Court
finds that there is no substantial question of law on which this
appeal can be admitted. (Kulsoom Khan alias Kulsoom Begum v.
Uttaranchal Power Corporation Ltd.; AIR 2012 Uttarakhand 105)
S. 9—Land Acquisition Act - Ss. 4, 6
Nagar Mahapalika Adhiniyam, S. 365(2)—Jurisdiction of Civil
Court—Ouster of—Acquisition of land made under Land Acquisition Act
cannot be challenged in Civil Court
The authority of the Supreme
Court ousting the jurisdiction of the Civil Court to entertain suit
challenging land acquisition under a local Act Squarely applies to
the acquisition for schemes under U.P. Nagar Maha Palika Adhiniyam (U.P.M.C.
Act). (Mithai Lal vs. State of U.P.; 2012 (5) ALJ 682)
S. 11—Res Judicata—Applicability—Acquisition
of land—Earlier writ proceedings relating to re-determination of
compensation—Judgment in writ petition cannot operate as resjudicata
against A.D.A.
It is clear that though a
decision given at an earlier stage of suit will bind the parties at
later stages of the same suit, but it is equally well settled that
because a matter has been decided at an earlier stage by an
interlocutory order and no appeal has been taken therefrom or no
appeal did lie, a higher Court is not precluded from considering the
matter again at a later stage of the same litigation. Accordingly,
in any view of the matter this Court is not precluded from examining
the correctness of the decision of the Courts below on all issues.
(Union of India vs. Indrajit Tewari; 2012 (5) ALJ 586)
S. 11 - Provincial
Small Causes Courts Act, S. 15 – U.P. Urban Buildings (Regulation of
Letting, Rent & Eviction) Act, Ss. 2(2), 21 – Suit for eviction -
Bar of res judicata - For operation of res judicata, judgment should
be passed by court of competent jurisdiction
The only
question argued before this court was landlord earlier filed an
application under Section 21 of U.P. Urban Buildings (Regulation of
Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as
“Act 1972”) before Prescribed Authority i.e. P.A. Case no. 2 of 1983
seeking release of premises in question on the ground of personal
need. The application was partly allowed vide order dated 13.12.1983
by Prescribed Authority directing eviction of defendant No. 1 and 2,
namely, Prabhu Dayal and Ram Naresh and directing them to hand over
possession of vacant premises to plaintiff No. 1, i.e. respondent
No. 3 in the present writ petition, but it was dismissed against
present petitioner and one Fakire Yadav.
Vide
plaint dated 24.4.1984, respondent No. 3, however, filed another
suit No. 13 of 1984 in the Court of Judge, Small Cause Court, Konch
seeking eviction of petitioner and stated therein that the
construction of premises in question since was completed in 1977
therefore Act No. 13 of 1972 (referred to as “Act, 1972”
hereinabove) was not applicable to premises in question. Hence he
filed the aforesaid suit of 1984. Petitioner raised an objection
that once a suit under Section 21 of Act, 1972 was filed presuming
that Act No. 13 of 1972 was applicable and that was decided, no suit
was maintainable on the ground that Act No. 13 of 1972. The finding
given by prescribed Authority would operate as res judicata and
therefore the subsequent suit was wholly illegal and not
maintainable.
Both the
Court below have framed issue, “whether Act No. 13 of 1972 was
applicable to the premises in question” and have recorded a finding
that building in dispute admittedly having been completed in 1977,
Act No. 13 of 1972 would not be applicable to the premises in
question. This finding could not be shown perverse of otherwise bad.
It was
contended that once a person has taken legal steps under a
particular statue and has failed, thereafter he cannot retract by
taking another step on the ground that earlier step was illegal or
not maintainable and therefore the Courts below have erred by
rejecting his submission in this respect.
In this
case the building in question having been constructed and completed
in 1977, in 1983, then years having not passed, Act No. 13 of 1972
was not applicable by virtue of Section 2(2) of Act, 1972. That
being so the Prescribed Authority under Section 21 of Act, 1972
lacked patent jurisdiction. A jurisdiction cannot be conferred even
by consent of parties. It is an elementary principle, where a Court
has no jurisdiction over the subject-matter of the action in which
an order is made, such order is wholly void, for jurisdiction cannot
be conferred by consent of parties. No waiver or acquiescence on
their part can make up the patent lack or defect of jurisdiction. If
the decision/order of court/authority is void for want of
jurisdiction over the subject-matter, it since the essential
pre-requisite is that it should be the within the meaning of Section
11 of the Civil procedure Code. Something which is wholly without
jurisdiction, that is nullity in the eyes of law, no principle of
law would come to confer any kind of effectiveness to such
proceedings so as to have any legal consequence. (Ramesh Chandra
Yadav II Addl. District Judge, Jalaun at Orai and Ors; 2012 (6) ALJ
130)
S. 47 - Execution of
decree - Impleadment of necessary party - Suit for specific
performance filed by decree holder - Not bad for want of impleadment
of Bank Manager with whom judgment debtor had some transaction
Under
Section 47 of the Code of Civil procedure, the main plea raised by
the revision petition/judgment debtor was that the suit for specific
performance filed by the decree holder was bad for want of
impleadment of the necessary party namely, the Bank Manager. Ex
facie and prima facie the said plea is not tenable under law and
prima facie the said Bank Manager with whom the judgment debtor had
some transaction is having nothing to do with specific performance
suit.
Hence,
there is nothing wrong in the order passed by the lower Court. It is
not that in all cases blindly, the Court is expected to number
application filed under Section 47 of the Code of Civil Procedure
and deal with it; if prima facie, no case is made out, then the
lower Courts are not enjoined to mechanically number it and waste
its judicial time. (A. L. Helan Christina Mary v. Sivaganesh; AIR
2012 Mad 249)
S. 100—Second
Appeal—Interference with concurrent findings of fact—Scope of
In Major Singh vs. Rattan Singh,
(1997) 3 SCC 546, it has been observed that when the courts below
had rejected and disbelieved the evidence on unacceptable grounds,
it is the duty of the High Court to consider whether the reasons
given by the courts below are sustainable in law while hearing an
appeal under/S. 100 of the Code of Civil Procedure.
In Vidhyadhar vs. Manikrao,
(1999) 3 SCC 573, it has been ruled that the High Court in a second
appeal should not disturb the concurrent findings of fact unless it
is shown that the findings recorded by the courts below are perverse
being based on no evidence or that on the evidence on record no
reasonable person could have come to that conclusion. We may note
here that solely because another view is possible on the basis of
the evidence, the High Court would not be entitled to exercise the
jurisdiction u/s. 100 of the Code of Civil Procedure. This view of
ours has been fortified by the decision of this Court in Abdul
Raheem vs. Karnataka Electricity Board, (2007) 14 SCC 138. (Vishwanath
Agrawal vs. Sarla Vishwanath Agarwal; (2012) 3 SCC (Cri) 347)
S. 114 - Review – Notice of SLP not
served on respondent - Review petition maintainable
In the case on hand, though
during the course of hearing, a reference was made as to the
presence of learned Attorney General by learned senior counsel for
the respondents. Court are satisfied that the Union of India was not
given an opportunity to represent its case due to mistake on the
part of the Registry. Applying the well settled principles governing
a review petition and giving our anxious and careful consideration
to the facts and circumstances of this case, Court have come to the
conclusion that the review petition filed by the Union of India
should be admitted on the basis of the above reasoning. (Union of
India v. Sandur Manganese & Iron Ores Ltd & Ors.; 2012 (7) Supreme
318)
S. 115 and O. 39, Rules 1 & 2 - Wakf Act,
1995 – S. 83 - Rejection of Temporary injunction application -
Revision against - Maintainability of
Since there is specific provision in the Act under
sub-section (9) of Section 83 of the Act that no appeal shall lie
against any decision or order whether interim or otherwise, given or
made by the Tribunal, therefore, in view of the Proviso appended to
sub-section (9) of Section 83 of the Act, the order passed by the
Tribunal are revisable. So far as the correctness, legality or
propriety of determination is concerned, this Court is of the view
that the matter can be examined in revision, therefore, the present
revision is maintainable in respect of the order passed by the
Tribunal on the temporary injunction application. (Haji Rao
Sharafat Ali vs. State of Uttarakhand; 2012(3) ARC 853 (Uttarakhand
High Court)
O. 2 R. 2(2) and (3) - Applicability of –
Cause of action in the later suit must be the same as in the first
suit
The cardinal requirement for
application of the provisions contained in Order II Rule 2(2) and
(3), therefore, is that the cause of action in the later suit must
be the same as in the first suit. It will be wholly unnecessary to
enter into any discourse on the true meaning of the said expression,
i.e. cause of action, particularly, in view of the clear enunciation
in a recent judgment of this Court in the Church of Christ
Charitable Trust and Educational Charitable Society, represented by
its Chairman v. Ponniamman Educational Trust represented by its
Chairperson/Managing Trustee [JT 2012 (6) SC 149]. The huge number
of opinions rendered on the issue including the judicial
pronouncements available does not fundamentally detract from what is
stated in Halsbury's Law of England. (4th Edition). The following
reference from the above work would, therefore, be apt for being
extracted herein below:
“Cause of Action” has
been defined as meaning simply a factual situation existence of
which entitles one person to obtain from the Court a remedy against
another person. The phrase has been held from earliest time to
include every fact which is material to be proved to entitle the
plaintiff to succeed, and every fact which a defendant would have a
right to traverse. ‘Cause of action’ has also been taken to mean
that particular action the part of the defendant which
gives the plaintiff his cause of complaint, or
the subject-matter of grievance founding the action, not merely the
technical a cause of action.”
(M/s. Virgo Industries
(Eng.) P. Ltd. Vs. M/s. Venturctech Solutions P. Ltd.; 2012(6)
Supreme 557)
(a) Civil
Procedure Code, 1908, O. 6 R. 17 - Amendment of Pleadings - Held,
the power to allow the amendment is wide and can be exercised at any
stage of the proceedings in the interest of justice
(b) Civil
Procedure Code, 1908, O. 6 R. 17 - Amendment of Pleadings - Held, it
is settled law that if necessary factual basis for amendment is
already contained in the plaint, the relief sought on the said basis
would not change the nature of the suit - Challenge to the voidness
of the sale deed was implicit in the factual matrix of the unamended
plaint, therefore the relief of cancellation of sale deeds as sought
by amendment does not change the nature of the suit
We reiterate that all amendments
which are necessary for the purpose of determining the real
questions in controversy between the parties should be allowed if it
does not change the basic nature of the suit. A change in the nature
of relief claimed shall not be considered as a change in the nature
or suit and the power of amendment should be exercised in the larger
interests of doing full and complete justice between the parties.
In the light of various
principles we are satisfied that the appellants have made out a case
for amendment and by allowing the same, the respondents herein
(Defendant Nos. 1-3) are in no way prejudiced and they are also
entitled to file additional written statement if they so desire.
Accordingly, the order of the trial court dated 06.06.2007
dismissing the application for amendment of plaint in Suit No. 320
of 2003 as well as the High Court in Civil Revision No. 4486 of 2007
dated 13.11.2007 are set aside. The application for amendment is
allowed. Since the suit is of the year 2003, Court direct the trial
Court to dispose of the same within a period of six months from the
date of receipt of copy of the judgment after affording opportunity
to all the parties concerned. The appeal is allowed. No order as to
costs. (Abdul Rehman and another Vs. Mohd. Ruldu and others;
(2012) (30) LCD 2032 Supreme Court)
O. - 7 R. 11 - Rejection of Plaint -
Exercise of power under - If plaint found manifestly vexatious and
merit-less then Munsif should exercise his power under Order 7, Rule
11
The petitioners have not
moved any application before the learned Trial Court for rejection
of plaint under Order VII, Rule 11 C.P.C. Without resorting to the
judicial forum, the petitioners have directly approached this Court
which cannot capture or override, overlap or prevail over the
hierarchical judicial system prevailing in this Country for
centuries together. (Khan Mohammad vs. Civil Judge (J.D.)
Kaiserganj, District Behraich; 2012 (3) ARC 779 (All HC Lucknow-Bench)
O. 7, R. 11 – Power to reject plaint can
be exercised at any stage of suit i.e. before registering plaint or
after issuance of summon to defendent or at any time before
conclusion of trial
Since the appellant
herein, as the first defendant before the trial Judge, filed
application under Order 7 Rule 11 of the Code for rejection of the
plaint on the ground that it does not show any cause of action
against him.
It is clear from the Order
7, Rule 11 CPC, that where the plaint does not disclose a cause of
action, the relief claimed is undervalued and not corrected within
the time allowed by the court, insufficiently stamped and not
rectified within the time fixed by the court, barred by an law,
failed to enclose the required copies and the plaintiff fails to
comply with the provisions of Rule 9, the court has no other option
except to reject the same. A reading of the provision of Order 7,
Rule 11 CPC also makes it clear that power under Order 7, Rule 11 of
the Code can be exercised at any stage of the suit either before
registering the plaint or after the issuance of summons to the
defendants or at any time before the conclusion of the trial.
(Church of Christ Charitable Trust & Educational Charitable Society
v. Ponniamman Educational Trust; (2012) 8 SCC 706)
O. 7, R. 11(a) and S. 20 – “Cause of
action” – Meaning – Reiterated
While scrutinizing the
plaint averments, it is the bounden duty of the trial court to
ascertain the materials for cause of action. The cause of action is
a bundle of facts which taken with the law applicable to them gives
the plaintiff the right to relief against the defendant. Every fact
which is necessary for the plaintiff to prove to enable him to get a
decree should be set out in clear terms. It is worthwhile to find
out the meaning of the words “cause of action”. A cause of action
must include some act done by the defendant since in the absence of
such an act no cause of action can possibly accrue.
It is useful to refer the
judgment in Bloom Dekor Ltd. v. Subhash Himatlal Desai; (1994) 6 SCC
322, wherein a three-Judge Bench of the Court held as under:
“28. By ‘cause of action’ it is meant every
fact, which, if traversed, it would be necessary for the plaintiff
to prove in order to support his right to a judgment of the court,
(Cooke v. Giff; (1873) LR 8 CP 107); in other words, a bundle of
facts which it is necessary for the plaintiff to prove in order to
succeed in the suit.”
It is mandatory that in
order to get relief, the plaintiff has to aver all material facts.
In other words, it is necessary for the plaintiff to aver and prove
in order to succeed n the suit. (Church of Christ Charitable
Trust & Educational Charitable Society v. Ponniamman Educational
Trust; (2012) 8 SCC 706)
O. 9, R. 4 Limitation Act, S. 5 -
Restoration of suit - Consideration of
The Court of considered opinion
that trial court and revisional court below were required to examine
the cause shown by the petitioner in restoration application moved
before the trial court in respect of delay caused after 14.2.1997
and they were not required to examine and assess the antecedents of
the petitioner prior to the aforesaid date for rejecting the said
application for restoration of the suit in question. (Ram Nayan
vs. DJ Gorakhpur; 2012(3) ARC 836 (All HC)
O. 9 R. 7 - Order recalling the order for
proceeding ex parte against defendants - Imposing condition that the
defendant shall deposit a sum equivalent to 10% of the amount
claimed in the suit which would be refundable - Condition directing
deposit of refundable amount held to be legally unsustainable
The respondent-Bank filed a suit
for recovery of a certain amount. The suit proceeded and 11th
October, 1995 was the date fixed for hearing. The suit was
proceeding ex-parte as the defendants had not put in appearance.
This attitude of the defendants
who are the revisionists before this Court led to the passing of the
impugned order 10.10.1997 imposing a condition that the defendant
shall deposit a sum equivalent to 10% of the amount as claimed in
the suit which would be refundable in the circumstances as defined
in the impugned order itself.
This revision was preferred by
the defendants questioning correctness of the said order as being
beyond the purview of the court to impose such condition while
exercising powers under Rule 7 of Order IX of the Civil Procedure
Code, and this Court way back in the year 1997 stayed all further
proceedings in the suit.
Having considered the aforesaid
submissions and facts on record, there is no doubt that the
defendants were not cooperating with the Court that let to the
passing of the order on 11th October, 1995. They,
however, moved an application under Order IX Rule 7 C.P.C. and the
Court passed the impugned order for depositing 10% of the amount
claimed under the plaint allegations. In the opinion of the Court
the word otherwise used in Order IX Rule 7 C.P.C. does not
contemplate the imposition of such a condition and it only indicates
that the Court can pass an order of imposing costs or impose any
such terms otherwise that may be in the nature of costs. The amount
directed to be deposited. Therefore, cannot be made refundable as
has been done by the trial court. In opinion of the Court, the
impugned order is manifestly contrary to the scope of the provisions
of under Rule 7 of Order IX of C.P.C., and cannot be sustained.
At the same time, keeping in
view the attitude of the defendant and the manner in which the case
has proceeded, it would be in the interest of justice to impose
costs for the purpose of allowing the applicant-defendant to
participate in the suit from the stage that the ex-parte order was
passed on 11th October, 1995.
In opinion of Court a sum of Rs.
5,000/- as cost would be sufficient for the said purpose which shall
be deposited by the defendants-revisionist before the Court below
within one month from the date of passing of this order.
The revision is allowed. The
order dated 10.10.1997 is set aside. The ex-parte order dated
10.10.1995 is also set aside as costs have been imposed by this
Court and the suit shall now proceed on day to day basis without any
further unnecessary adjournments being granted to the
defendant-revisionist. (M/S New Manufacturing Com. and others Vs.
State Bank of India; (2012 (30) LCD 2614) (Allahabad High Court)
O. 9, R. 13 - Hindu
Marriage Act (25 of 1955), Ss. 13, 28 - Application for setting
aside ex parte decree did not stay infructuous only on ground of
husband's remarriage on next day of service of notice for
application - Second remarriage was totally mala fide and performed
only to defeat application filed by wife - Setting aside ex parte
decree, not improper
After
passing of a decree of divorce dissolving marriage between the
parties, either party to the marriage can lawfully remarry in the
following circumstances:-
(i) Immediately after passing of the
decree of divorce without any waiting period, if there is no right
of appeal against the decree by which the marriage has been
dissolved.
(ii) If there is such a right of appeal,
the time for appealing has expired without on appeal having been
presented. Therefore, in a case in which a decree of divorce has
been passed dissolving the marriage between the parties and the
aggrieved party does not file an appeal within the period of 30 days
as prescribed by S. 28 of the Act, the other party, on the expiry of
such period of 30 days, has a right to lawfully remarry.
(iii) In a case an appeal has been
presented and the same has been dismissed, any of the party to the
decree is entitled to marry again after dismissal of such an appeal.
That means during pendency of appeal none of the party is entitled
to remarry.
In a
case in which ex parte decree of divorce has been passed by the
Court, provisions of O. 9, R. 13, CPC are applicable and the party
against whom the ex parte decree has been passed has a right to file
an application under this provision for setting aside the ex parte
decree. Although, S. 15 of the Act does not refer to an application
filed under O. 9, R. 13, CPC but on the analogy of an appeal as
referred in this section, the provisions of O. 9, R. 13, CPC are
also applicable and in view of that, if S. 15 of the Act is further
analyzed, the circumstances In which a party to the decree of
divorce can lawfully remarry emerges as follows:-
(i)
If an application under O. 9, R. 13, CPC for setting aside
an ex parte decree of divorce is not filed within the period of 30
days as prescribed in Art. 123 of Limitation Act, the other party in
whose favour ex parte decree has been passed has a right to lawfully
remarry after the expiry of period of 30 days.
(ii)
In a case in which an application under O. 9, R. 13, CPC has
been filed, no party to the decree is entitled to lawfully marry
again unless that application has been dismissed. That means during
pendency of the application neither of the party is entitled to
marry again.
Where
notice issued for application filed under O.9, R. 13, CPC to set
aside ex parte decree granting divorce was served upon husband and
he married again on next day in accordance with Customs and Usages
of Arya Samaj, application under O. 9, R. 13, CPC filed by wife was
pending during re-Marriage of husband and, therefore, the husband
was not entitled to lawfully marry again. Application for setting
aside the ex parte decree did not stand infructuous as soon as
husband remarried. (Kuldip Kumar Lal v. Suman Rani; AIR 2012 Raj
175)
O. 11, R. 14, 15 and 21 – Evidence Act,
1872, Section 114 (g) – Presumption – Party duty bound to lead the
best evidence in his possession – If such material withheld Court
may draw adverse inference
The law on the issue can be
summarised to the effect that, issue of drawing adverse inference is
required to be decided by the Court taking into consideration the
pleadings of the parties and by deciding whether any document/
evidence, withheld, has any relevance at all or omission of its
production would directly establish the case of the other side. The
Court cannot loose sight of the fact that burden of proof is on the
party which makes a factual averment. The Court has to consider
further as to whether the other side could file interrogatories or
apply for inspection and production of the documents etc. as is
required under Order XI, C.P.C. Conduct and diligence of the other
party is also of paramount importance. Presumption or adverse
inference for non-production of evidence is always optional and a
relevant factor to be considered in the background of facts involved
in the case. Existence of some other circumstances may justify
non-production of such documents on some reasonable grounds. In case
one party has asked the Court to direct the other side to produce
the document and other side failed to comply with the Court’s order,
the Court may be justified in drawing the adverse inference. All the
pros and cons must be examined before the adverse inference is
drawn. Such presumption is permissible, if other larger evidence is
shown to the contrary. (Union of India vs. Ibrahim Uddin;
2012(117) RD 783)
O. 12, R. 6 - Admission made on the basis
of pleadings in a given case – Cannot be taken as an admission in a
different fact situation
Admission made on the basis
of pleadings in given case cannot obviously be taken as an admission
in a different fact situation. That precisely is the view taken by
this court in Jeevan Diesel & Electricals Ltd. relied upon by the
High Court where this Court has observed:
“Whether or not there is a clear,
unambiguous admission by one party of the case of the other party is
essentially a question of fact and the decision of this question
depends on the fact of the case. The question, namely, whether there
is a clear admission or not cannot be decided on the basis of a
judicial precedent. Therefore, even though the principles in Karam
kapahi may be unexceptionable they cannot be applied in the instant
case in view of totally different fact situation.”
(M/s Payal Vision Ltd. V. Radhika
Choudhary; 2012 (7) Supreme 119)
O. 21, R. 1 – Scope of - Does not confine
to decretal amount – It includes all monies
Once
Court steer clear of the said position as regards the decree passed
by the learned Single Judge, Court are posed with the next question
as to while applying Order XXI Rule 1 when payments were made
towards the satisfaction of the said decree as provided under Order
XXI Rule 1 (a), (b) and (c) what would be the implication of
sub-rules 4 and 5 of Order XXI. In order to understand the said
legal implication of Order XXI Rule 1 read along with sub-rules 4
and 5, in the foremost it will be necessary to understand what is
contemplated under Order XXI Rule ·1, in particular, the opening set
of expressions, namely, “all money, payable under a decree shall be
paid as follows, namely:-
It will
be necessary to keep in mind that the said provision does not state
the decretal amount. The expression used is all money payable under
a decree. TERSELY stated, as pointed out by us in the earlier
paragraph, the decree dated 31.05.1985 affirm the award amount, the
interest payable at the rate of 12 per cent per annum from
12.03.1981 till the date of its realization if not paid within two
months from the date of the decree, namely, 31.05.1985. Therefore,
the said decree dated 3l.05.1985 consisted of the award amount plus
interest payable thereon from 12:0.3.1981 up to the date of the
decree, namely, 3l.05.1985 to be payable within two months from that
date and in the event of non- payment of the said amount within two
months from 3l.05.1985 to calculate future interest at the very same
rate of 12 per cent per annum from the date of the decree till the
realization of the award amount. In our considered opinion, a
reading of the opening set of expressions of Order XXI Rule 1 is
clear to the above effect. In the case on hand the payment effected
by the appellant after 3l.05.1985 was once on 18.10.1985 and
thereafter on 13.12.2000 when the issue was dealt with by the Court
in the order dated 12.07.2002. It is not in dispute that the award
amount of Rs.1,41,68A74/- earned interest at the rate of 12 per cent
per annum up to the date of first payment, namely, 18.10.1985 which
worked out to a sum of Rs.78,30,314/- i.e. for the period from
12.03.1981 to 18.10.1985. The total amount payable as on that date
under the decree, both the award amount along with the interest,
worked out to Rs.2,19,61,134/-. The said figure, as calculated by
the appellant, was not disputed by the respondent. On 18.10.1985,
the appellant paid a sum of Rs.1 crore by way of deposit pursuant to
the order of the Division Bench dated 13.09.1985 when the appellant
challenged the decree dated 31.05.1985. The respondent was also
permitted to withdraw the said sum of Rs.1 crore in the said order
dated 13.09.1985. (Bharat Heavy Electrocals Ltd. V. R.S. Avtar
Singh & Co.; 2012 (7) Supreme 243)
O. 21, Rules 1 & 4 -
Rs. 1 crore paid by judgment debtor as part payment of entire dues
on the date of notice and also with drawer by decree holder
The following principles
were emerged on the basis of the decision of the Court:
(a)
The general rule of appropriation towards a decretal amount
was that such an amount was to be adjusted strictly in accordance
with the directions contained in the decree and in the absence of
such directions adjustments be made firstly towards payment of
interest and cost and thereafter towards payment of the principal
amount subject, of course, to any agreement between the parties.
(b)
The legislative intent in enacting sub-rules 4 and 5 is clear
to the pointer that interest should cease to run on the deposit made
by the judgment debtor and notice given or on the amount being
tendered outside the Court in the manner provided in Order XXI Rule
1 sub-clause (b).
(c)
If the payment made by the judgment debtor falls short of
the decreed amount, the decree holder will be entitled to apply the
general rule of appropriation by appropriating the amount deposited
towards the interest, then towards cost and finally towards the
principal amount due under the decree.
(d)
Thereafter, no further interest would run on the sum
appropriated towards the principal. In other words if a part of the
principal amount has been paid along with interest due thereon as on
the date of issuance of notice of deposit interest
on that part of the principal sum will cease to run thereafter.
(e)
In cases where there is a shortfall in deposit of the
principal amount, the decree holder would be entitled to adjust
interest and cost first and the balance towards the principal and
beyond that the decree holder cannot seek to reopen.
(Bharat Heavy
Electricals Ltd. V. R.S. Avtar Singh & Co.; 2012 (7) Supreme 243)
O. 21, R. 7 r/w S. 304 and S. 3(3) (c),
Interest Act - Payable under a decree - Date of commencement of
Interest or awarded changed by Rule of the Court
When
court examined the Rule of the Court, Court wish to specifically
note that the Court made a conscious direction to the specific
effect that the entitlement of the respondent for future interest at
the rate of 12 per cent per annum from the date of decree, namely,
31.05.1985 till the date of realization would be on the award amount
if it was not paid within two months from 31.05.1985. Therefore, the
calculation of interest payable up to the date of the decree as well
as the time granted therein, namely, two months from 31.05.1985 and
what is interest payable subsequent thereto has been clearly set out
in the said part of the Rule. If the said Rule is to be understood
in the manner in which the Court had directed the calculation
of interest to be made it can be only in the following manner,
namely, that the interest from 12.03.1981 up to 3l.07.1985 at the
rate of 12 per cent per annum would be on the award amount, namely,
Rs.1,41,68,474/-. If the award amount was not paid, namely, the sum
of Rs.1,41,68,474/- on or before 3l.07.1985, the future interest
again at the rate of 12 per cent per annum can be claimed In our
considered opinion, it should be or the award amount which was in a
sum of Rs.1,41,68,474/-. Court say so because both the award of the
learned Arbitrator as well as the Rule of the Court makes a clear
distinction between the award amount and the interest payable. The
award having become the Rule of the Court and while making the said
Rule it was clearly made known that the award contained an amount
which was payable to the respondent quantifying the said amount in a
sum of Rs.1,41,68,474/-. After quantification of the said amount,
the learned Arbitrator dealt with the grant of interest independent
of the said payment and fixed the rate of such interest at 12 per
cent per annum. When such a clear distinction was consciously made
by the learned Arbitrator while passing the award no one can even
attempt to state that the award amount and the interest mentioned in
the award dated 15.03:1982 should be merged together and state that
the Court award amount would comprise of a sum of Rs.1,41,68,474/-
and the interest worked out thereon became payable when once it was
made the Rule of the Court and thereby became the decretal amount.
Such a construction of the said award cannot be made having regard
to the specific terms of the decree dated 31.05.1985. (Bharat
Heavy Electrocals Ltd. V. R.S. Avtar Singh & Co.; 2012 (7) Supreme
243)
O. 23, R. 3 - When parties arrive at a
compromise settlement court should take notice and order accordingly
In view of the agreement
that is executed between the parties outside the court, Court
dispose of these appeals in accordance with the settlement that is
arrived at between the parties under the aforesaid agreement. (T.T.
Raghunathan & Anr. V. New Bridge Holding B.V. & Ors.; 2012 (7)
Supreme 128)
O. - 26, R. 10 & 11 Appointment of
Commissioner – For spot inspection - Necessary condition
It is well settled that
under Order 26 Rule 10 and 11 of Code of Civil Procedure the Court
is not bound to appoint Commissioner on mere asking of parties but
it is for the court when it found necessary to appoint Commissioner
for some further investigation or information, it can do so. Power
of the court to appoint Commissioner is not disputed but it is not
the legal right of parties to force the court to appoint
Commissioner. A local inspection, whether necessary or not, depends
on several facts, factors and circumstances which have been
considered by the court below and in absence of anything to show
that court finds it necessary to obtain Commissioner's report, such
appointment cannot be forced.
Considering the aforesaid
provisions a Special Bench of this Court in The Sunni Central
Board Vs. Sri Gopal Singh Visharad, 2010 ADJ 1 (SFB) in the
judgement delivered by (Hon. Sudhir Agarwal, J.) in paras 3749 and
3750 observed that a discretion is vested in the Court. When it is
of the opinion that any local inspection or scientific investigation
is required, it can order accordingly so as to help it in extracting
truth. This shows that appointment of Commissioner for local
inspection is not a matter of right or matter of course but it is
for the Court to satisfy itself whether it is so required to extract
the truth or not. If in its opinion it is not so required it cannot
be compelled. (Som Singh vs. Smt. Santoshi Devi; 2012(3) ARC 520
(All HC)
O. 39, R. 1 - Constitution of India,
Articles, 133, 136 - Discretionary interim order passed by High
Court - Interference by Supreme Court only in atypical cases
There is, a self-imposed
limited discretion for interference available to Supreme Court, and
it would, generally, be more appropriate for an aggrieved litigant
to approach the High Court for rectifying any error that it may have
committed in passing an interim order. However in an emergent and
appropriate situation it is always open to a litigant to approach
Supreme Court in its remedial jurisdiction. It is only in a typical
case that Supreme court entertains a petition against a
discretionary interim order passed by the High Court where, for
example, the repercussions are grave or the legal basis for passing
the interim order are obscure or there is a miscarriage of justice
or it is imperative to the Supreme Court exercises its corrective
jurisdiction. (Vice-chancellor, Guru Ghasidas University v. Craig
Mcleod; AIR 2012 SC 3356)
O. 39, Rules 1 & 3—Refusal to grant
interim injunction against forcible possession of property—Validity
Court observed that the property
in dispute was a joint property in which there were various
co-shares, it was not possible for respondents-1 and 2 to give
possession to the plaintiff over any specific portion of the
property. Neither in the alleged deed dated 15.11.2009, nor in the
plaint, any specific portion of the property has been shown, over
which the possession of the plaintiff is being claimed. In the
plaint, the plaintiff claimed 1/3rd western portion,
while share of defendants- 1 and 2 is less than 1/3rd as
such, they were not able to hand over possession of 1/3rd
share. In view of the aforesaid discussion, the suit of the
appellant being based upon an unregistered document is not
maintainable. The plaintiff has no prima facie case and accordingly
not entitled for interim injunction. The order of the trial Court
does not suffer from any illegality. The appeal has no merit and is
accordingly dismisses. (Subhash Verma vs. Narendra Kumar; 2012
(5) ALJ 686)
O. 39, R. 3 – Exparte
injunction order - Compliance of mandate of Rules 3 and 3-A
On
references Shiv Kumar Chadha’s case, the Hon'ble Supreme Court has
held as under:
"The imperative nature of the proviso has to be judged in the
context of Rule 3 of Order 39 of the Code. Before the proviso
aforesaid was introduced, Rule 3 said 'the Court shall in all cases,
except where it appears that the object of granting the injunction
would be defeated by the delay, before granting an injunction,
direct-notice of the application for the same to be-given to the
opposite party'. The proviso' was introduced to provide a condition,
where Court proposes to grant an injunction without giving notice of
the application to the opposite party, being of the opinion that the
object Of granting injunction itself shall be defeated-by delay. The
condition so introduced is that the Court 'shall record the reasons'
why an ex parte order of injunction was being passed in the facts
and circumstances of a particular case. In this background, the
requirement for recording the reasons for grant of ex parte
injunction cannot be held to be a mere formality. This requirement
is consistent with the principle, that a party to a suit, who is
being restrained from exercising a right which such party claims to
exercise either under a statute or under the common law, must be
informed why instead of following the requirement of Rule 3, the
procedure prescribed under the proviso has been followed. The party
which invokes the jurisdiction of the Court for grant of an order of
restraint against a party, without affording an opportunity to him
of being heard, must satisfy the Court about the gravity of the
situation and Court has to consider briefly these factors in the ex
parte order. We are quite conscious of the fact that there are other
statutes which contain similar provisions requiring the Court or the
authority concerned to record reasons before exercising power vested
in them. In respect of some of such provisions, it has been held
that they are required to be complied with but non-compliance
therewith will not vitiate the order so passed. But same cannot be
said in respect of the proviso to Rule 3 of Order 39. The Parliament
has prescribed a particular procedure for passing of an order of
injunction without notice to the other side, under exceptional
circumstances. Such ex parte orders have far-reaching effect, as
such a condition has been imposed that Court must record reasons
before passing such order. If it is held that the compliance with
the proviso aforesaid is optional and not obligatory, then the
introduction of the proviso by the Parliament shall be a futile
exercise and that part of Rule 3 will be a surplus age for all
practical purposes. Proviso to Rule 3 of Order 39 of the Code,
attracts the principle, that if a statute requires a thing to be
done in a particular manner, it should be done in that manner or not
all. This principle was approved and accepted in well known cases of
Taylor v. Taylor (1875) 1 Ch D.426: 45 U Ch 373) and Nazir Ahmed v.
Emperor (AIR 1936 PC 253 (2): 63 IA 372: 36 Cri LJ 897). This Court
has also expressed the same view in respect of procedural
requirement of the Bombay Tenancy and Agricultural Lands Act in the
case of Ramchandra Keshav Adke v. Govind Joti Chavare; (1975) 1 SCC
915: AIR 1975 SC 915). As such, whenever a Court considers it
necessary in the facts and circumstances of a particular case to
pass an order of injunction without notice to other side, it must
record the reasons for doing so and should take into consideration,
while passing an order of injunction, all relevant factors,
including as to how the object of granting injunction itself shall
be defeated if an ex parte order is not passed. But any such ex
parte order should be in force up to a particular date before which
the plaintiff should be required to serve the notice on the
defendant concerned. In the Supreme Court Practice 1993, Vol.1 at
page 514, reference has been made to the views of the English Courts
saying: ex parte injunctions are for cases of real urgency where
there has been a true impossibility of giving notice of motion .. ..
An
ex parte injunction should generally be until a certain day, usually
the next motion day ....
Supreme Court observed that it need no emphasis that provisions of
Rule 3 and 3-A of Order XXXIX of the Code of Civil Procedure are
mandatory in nature. However, the factual position of the-instant
case is some what different. Here the learned trial Court fixing
date of hearing within thirty days in its impugned order has
discussed the facts of the case in brief and has also noted the
evidence filed by the respondent in support of his contention and
has indicated the reasons for granting ex parte ad interim
injunction order. It has observed that as the partnership has not
been dissolved, so prima facie case in favour of the plaintiff is
found. No doubt in so many words it has not been stated that the
object of granting the injunction would be defeated by the delay,
but in the facts and circumstances of this case, we find that the
provisions of Rule 3 have been substantially followed. (Ramji
Singh v. Anuj Kumar Singh; 2012 (6) ALJ 188)
O. 39, R. 4 – Order granting injunction/status
quo—Compliance of
In a democratic polity, it is
always incumbent upon the governing authorities to implement the
interim order or injunction order, granted by the trial Court or
this Court. In case, the injunction is not complied with by the
private parties, the Court has got ample powers to issue appropriate
orders under S. 151, C.P.C., directing the district authorities to
implement the injunction granted by it. Non-compliance of the
Court’s order or injunction is the antithesis of the rule of law.
In case, an objection is filed
under O. 39, R. 4 of the Code of Civil Procedure, it shall be always
incumbent upon the trial Court to decide such objection in
accordance with law expeditiously. Continuance of an ex parte
injunction for a long period, erode the belief and faith of people.
Objection filed under O. 39, R. 4 must be decided on priority basis.
Even if the amendment
application is moved along with some other application, priority
must be given to an application moved under O. 39, R. 4, C.P.C.
Reason behind this is that while granting ex parte injunction the
affected parties are not being heard. There may be cases where
injunction is granted on the basis of pleadings of record raised by
the plaintiff. In such situation, defendant may suffer irreparable
loss, in case objection is not decided within reasonable period.
Court has got ample power to
proceed under the contempt jurisdiction or in case, district
authorities fail to enforce the injunction granted by it and feel
helpless, the High Court may interfere under extraordinary
jurisdiction conferred by Art. 226 of the Constitution of India to
strengthen administration of justice and maintain the majesty of
law.
Where respondents were raising
construction over land in question in spite of fact that trial Court
had passed the order directing district authorities to ensure
compliance of order passed by it, Court ought to have decided
objection filed u/O. 39, R. 4 by opposite parties expeditiously.
(Sukhvir Singh vs. The District Inspector of Schools; 2012 (5) ALJ
404)
O. 41, R. 23 - Remand of case - Exercise
of – Remand is the last option before any appellate court and it
shall be exercise with due and diligence
The appellant has earlier filed FAFO No. 127/2002, which has
been decided by this Court vide judgement dated 16.11.2007. That
FAFO was also allowed and the Judgment of the Learned District Judge
dated 10.1.2002 was set aside and he was directed to take up both
the appeals together and decide both the appeals through a common
judgment in the light of the observations made hereinabove. Taking
advantage of the observation made by this Court, the learned First
Appellate Court was set at liberty to exercise option of remanding
back the matter, the First Appellate Court has remanded the matter
on flimsy grounds and this is not warranted under the law. Remand
of case is the last option before any appellate Court, which should
be exercised with due care and diligence. It is the duty of every
Court of law to decide the lis finally, in an effective manner and,
ensure that the dispute between the parties is resolved quickly. (Mumtaz
Ullah Khan vs. Rani Govind Kumari; 2012(3) ARC 838 (All HC- Lucknow-Bench)
BACK TO INDEX
Constitution of India
Art. 16—Denial compassionate appointment
on the ground that lump sum amount was paid as ex gratia to family
of deceased employee is not only ridiculous but also unconscionable
In Court’s opinion, the reasons
of rejecting the case of the petitioner for consideration of
appointment on compassionate ground is not only ridiculous but also
ludicrous besides being wholly unconscionable. It is not the case of
the respondents that there is no scheme for considering dependants
of deceased employees for appointment on compassionate grounds but
this is no ground that merely because ex gratia lump sum amount has
been paid, therefore, the petitioner is not entitled for appointment
on compassionate ground. (Arvind Kumar Singh vs. State Bank of
India; 2012 (5) ALJ 630)
Art. 16—Appointment obtaining suppressing
material information/giving false information—Whether unequivocally
entail cancellation of appointment/termination of service—Effect of
As noted by Court, all the above
decisions were rendered by a Division Bench of this Court consisting
of two-Judges and having bestowed our serious consideration to the
issue, Court consider that while dealing with such an issue, the
Court will have to bear in mind the various cardinal principles
before granting any relief to the aggrieved party, namely:
(i)
Fraudulently obtained orders of appointment could be
legitimately treated as voidable at the option of the employer or
could be recalled by the employer and in such cases merely because
the respondent employee has continued in service for a number of
years, on the basis of such fraudulently obtained employment, cannot
any equity in his favour or any estoppels against the employer.
(ii)
Verification of the character and antecedents is one of the
important criteria to test whether the selected candidate is
suitable to the post under the State and on account of his
antecedents the appointing authority if find not desirable to
appoint a person to a disciplined force can it be said to be
unwarranted.
(iii)
When appointment was procured by a person on the basis of
forged documents, it would amount to misrepresentation and fraud on
the employer and, therefore, it would create no equity in his favour
or any estoppels against the employer while resorting to termination
without holding any inquiry.
(iv)
A candidate having suppressed material information and/or
giving false information cannot claim right to continue in service
and the employer, having regard to the nature of employment as well
as other aspects, has the discretion to terminate his services.
(v)
Purpose of calling for information regarding involvement in
any criminal case or detention or conviction is for the purpose of
verification of the character/antecedents at the time of recruitment
and suppression of such material information will have clear bearing
on the character and antecedents of the candidate in relation to his
continuity in service.
(vi)
The person who suppressed the material information and/or
gives false information cannot claim any right for appointment or
continuity in service.
(vii)
The standard expected of a person intended to serve in
uniformed service is quite distinct from other services and,
therefore, any deliberate statement or omission regarding a vital
information can be seriously viewed and the ultimate decision of the
appointing authority cannot be faulted.
(viii)
An employee on probation can be discharged from service or
may be refused employment on the ground of suppression of material
information or making false statement relating to his involvement in
the criminal case, conviction or detention, even if ultimately he
was acquitted of the said case, inasmuch as such a situation would
make a person undesirable or unsuitable for the post.
(ix)
An employee in the uniformed service pre-supposes a higher
level of integrity as such a person is expected to uphold the law
and on the contrary such a service born in deceit and subterfuge
cannot be tolerated.
(x)
The authorities entrusted with the responsibility of
appointing Constables, are under duty to verify the antecedents of a
candidate to find out whether he is suitable for the post of a
Constable and so long as the candidate has not been acquitted in the
criminal case, he cannot be held to be suitable for appointment to
the post of Constable.
Though there are very many
decisions in support of the various points culled out in the above
paragraphs, inasmuch as we have noted certain other decisions taking
different view of coordinate Benches, we feel it appropriate to
refer the above-mentioned issues to a larger Bench of this Court for
an authoritative pronouncement so that there will enable the Courts
to apply the law uniformily while dealing with such issues.
With that view, we feel it
appropriate to refer this matter to be considerably by a larger
Bench of this Court. (Jitendra Singh vs. State of U.P. Through
Principal Secretary, Home & Ors.; 2012 (5) ALJ 503)
Art. 16—Regularization of
services—Executive function—Court/Tribunal cannot direct the
authorities to frame scheme for regularization of employees of the
Railway Employees Consumer Cooperative Society
The respondents were employees
of a cooperative society of Railway Employees Consumer Cooperative
Society Ltd. By its order dated 30.5.2001, the Central
Administrative Tribunal (for short ‘the Tribunal’) has directed the
Chairman, Railway Board to formulate a suitable scheme for induction
of the respondents and similarly placed employees of other
cooperative societies in regular Group ‘D’ posts and alternatively
also as Casual Group ‘D’ employees in the railways. This direction
has been upheld by the High Court in the impugned judgments.
In court’s opinion, the order of
the Tribunal as well as the impugned judgments of the High Court
were totally unwarranted and illegal. There is broad separation of
power in the Indian Constitution. As held by this Court in
Divisional Manager, Aravali Golf Club vs. Chander Hass, 2008 (1)
Recent Apex Judgments (R.A.J.) 116 : (2008) 1 SCC 683 “ [2008(1) SLR
728 (SC)], it is not proper for the Judiciary to encroach into the
domain of the Legislature or the Executive. The framing of a scheme
such as the one done by the Tribunal and approved by the High Court
was a purely executive function and could not validly be done by the
judiciary. (Union of India vs. Ram Singh Thakur; 2012 (2) SLR 533
(SC)
Arts. 20(3), 21, 22(i)
- CrPC Sections 163, 164 – Right of accused to be represented by
lawyer and right against self–incrimination - Failure to provide
legal aid to accused before recording confession (pre-trial stage)
does not vitiate trial
It
is improper to say that the right to be represented by a lawyer and
the right against self-incrimination would remain incomplete and
unsatisfied unless those rights are read out to the accused. The
obligation to provide legal aid to the accused as soon as he is
brought before the Magistrate is very much part of our criminal law
procedure, aimed at protecting the accused against
self-incrimination. But to say that any failure to provide legal aid
to the accused at the beginning, or before his confession is
recorded under Section 163, Cr.P.C, would inevitably render the
trial illegal is stretching the point to unacceptable extremes. The
object of the criminal law process is to find out the truth and not
to shield the accused from the consequences of his wrong-doing. A
defence lawyer has to conduct the trial on the basis of the
materials lawfully collected in the course of investigation. The
test to judge the constitutional and legal acceptability of a
confession recorded under Section 164, Cr.P.C. is not whether the
accused would have made the statement had he been sufficiently
scared by the lawyer regarding the consequences of the confession.
The true test is whether or not the confession is voluntary. If a
doubt is created regarding the voluntariness of the confession,
notwithstanding the safeguards stipulated in S. 164 it has to be
trashed but if a confession is established as voluntary it must be
taken into account, not only constitutionally and legally but also
morally.
Every
accused unrepresented by a lawyer has to be provided a lawyer at the
commencement of the trial, engaged to represent him during the
entire course of the trial. Even if the accused does not ask of a
lawyer or he remains silent, it is the Constitutional duty of the
Court to provide him with a lawyer before commencing the trial.
Unless the accused voluntarily makes an informed decision and tells
the Court, in clear and unambiguous words, that he does not want the
assistance of any lawyer and would rather defend himself personally,
the obligation to provide him with a lawyer at the commencement of
the trial is absolute, and failure to do so would vitiate the trial
and the resultant conviction and sentence, if any, given to the
accused. But the failure to provide a lawyer to the accused at the
pre-trial stage may not have the same consequence of vitiating the
trial. It may have other consequences like making the delinquent
magistrate liable to disciplinary proceedings, or giving the accused
right to claim compensation against the State for failing to provide
him legal aid. But it would not vitiate the trial unless it is shown
that failure to provide legal assistance at the pre-trial. That
would have to be judged on the facts of each case. (Mohammed
Ajmal Mohammad Amir Kasab v. State of Maharashtra; AIR 2012 SC
3565(F)
Arts. 21, 226 and 311—Termination of
services—Reinstatement—Consideration of
The respondent No. 3 was a Group-'D' staff under the respondent-bank
in the Head Office. He was absent from his duty on and from July 26,
1998. On March 14, 1998, he left Calcutta. On April 3, 1998, the
respondent No. 3 sent a communication to the respondent authority
with regard to the intimation of his absence from the services and
that communication was received by the respondent-bank on April 28,
1998. The respondent-bank issued a notice dated July 8, 1998 to the
petitioner at the following address. "Karbalamore p.a. & Dist.
Hooghly". Subsequently, a notice dated October 13, 1998 was issued
by the petitioner-bank, to the respondent No. 3 under Clause-17 of
the Fifth Bipartite Settlement. By an order dated November 16, 1995,
the name of the petitioner was struck off from the roll of the
petitioner-bank. The petitioner submitted a representation dated
January 6, 1999 to the respondent authority for consideration of his
absence from services due to his illness and that of his wife.
Ultimately, an industrial dispute was raised in the matter and the
same was referred to the Central Government Industrial Tribunal,
Calcutta. The Tribunal passed the impugned order. Hence, this writ
application.
According to Counsel for respondent/Bank, in view of the aforesaid
admitted facts and circumstances of this case, there was no
procedural impropriety in the- decision making process of the
petitioner-bank. The impugned award was passed on a sympathetic
ground, without support by any reasons. Therefore, the same was
perverse and liable to be set aside.
According to the learned Counsel for appellant in case of
unauthorized absence a disciplinary proceeding was required to be
initiated against the petitioner before passing the impugned order
but the same was not done. As a result, the action on the part of
the petitioner-bank could not be sustained in law.
Bank is a model employer whose action to be tested and pass through
the constitutional mandate of Article 14 & 21 of the Constitution of
India. The workman has been deprived of livelihood without fair
procedure in terms of Article 21 of Constitution of India despite
his intimation about distress condition of family and his suffering
from Jaundice, by sending a letter which was duly received by the
Bank authority. As a model employer Bank authority ought to have
resorted the steps of disciplinary' proceeding by sending charge
memo of unauthorised absence, in the permanent address recorded in
the Bank's register. In the instant case admittedly it has not been
done, and accordingly, it has caused constitutional breach of
Article 14 and 21 both.
Having
regard to such situation and the findings above we have not found
any merit to interfere with award passed by the learned Tribunal
below about reinstatement in service s confirmed by the learned
Trial Judge in the writ application moved by the appellant Bank
unsuccessfully. (UCO Bank vs. Jaglal Ram; 2012 (2) SLR 540 (Cal.)
Art. 21—Right to life includes right to
live with human dignity—Dignity even of accused in custody cannot be
comatosed
When an accused is in
custody, his Fundamental Rights are not abrogated in toto. His
dignity cannot be allowed to be comatosed. The right to life is
enshrined in Art. 21 of the Constitution and a fortiorari, it
includes the right to live with human dignity and all that goes
along with it. As such any treatment meted to an accused while he is
in custody which causes humiliation and mental trauma corrodes the
concept of human dignity. The majesty of law protects the dignity of
a citizen in a society governed by law. It cannot be forgotten that
the Welfare State is governed by rule of law which has paramountcy.
It is thus the sacrosanct duty of the police authorities to remember
that a citizen while in custody is not denuded of his fundamental
right under Art. 21 of the Constitution. The restrictions imposed
have the sanction of law by which his enjoyment of fundamental right
is curtailed but his basic human rights are not crippled so that the
police officers can treat him in an inhuman manner. On the contrary,
they are under obligation to protect his human rights and prevent
all forms of atrocities. (Dr. Mehmood Nayyar Azam vs. State of
Chhattisgarh and Ors.; 2012 CrLJ 3934 (SC)
Art. 21 – Right to
speedy trial - Delay in disposal of appeal against conviction cannot
be ground to discharge accused
It was
argued by the learned counsel for the appellant that considering the
fact that though the appeal was filed before the High Court at
Allahabad in the year 1981, the same was disposed of by the High
Court-only on 13.01.2006, i.e., after a gap of 25 years and the sole
appellant be discharged from the com-mission of offence on the
ground of delay. We are unable to accept the said contention. This
Court, in a series of decisions, held that the Limitation Act, 1963
does not apply to criminal proceedings unless there is express and
specific provision to that effect. It is also settled law that a
criminal offence IS considered as a wrong against the State and the
Society even though it is committed against an individual. After
considering various decisions including the decision of the
Constitution Bench of this Court in Abdul Rehman Antulay v. R.S.
Nayak, and Kartar Singh v. State of Punjab and a decision rendered
by seven learned Judges of this Court in P. Ramachandra Rao v. State
of Karnataka recently on 17.08.2012 a Bench of two Judges of this
Court in Ranjan Dwivedi etc. v. C.B.I. rejected similar argument
based on delay 'either at the stage of trial or thereafter.
In this
case, merely because the High Court had taken nearly 25 years to
dispose of the appeal, the present appellant cannot be exonerated on
the ground of delay. (Shyam Babu v. State of U.P.; 2012 (6) ALJ
10)
Arts. 21, 22(i), 39 A – Right of accused
to legal aid not to limited to stage of trial, but it is only for
representing accused in court proceeding and not during police
interrogation
The view that Article 22(1)
merely allows an arrested person to consult a legal practitioner of
his choice and the right to be defended by a legal practitioner
crystallizes at the stage of commencement of the trial in terms of
S. 304 of the Cr.P.C. is incorrect and is based on an unreasonably
restricted construction of the Constitutional and statutory
provisions; and it also overlooks the socio-economic realities of
the country. Having regard to the progress law has made to serve the
evolving needs of our people and particularly after the introduction
of Art. 39A it is now rather late in the day to contend that Article
22(1) is merely an enabling provision and that the right to be
defended by a legal practitioner comes into force only on the
commencement of trial as provided under S. 304 of the Cr.P.C. He
needs a lawyer at the stage of his first production before the
Magistrate, to resist remand to police or jail custody and to apply
for bail. He would need a lawyer when the charge-sheet is submitted
and the Magistrate applies his mind to the charge-sheet with a view
to determine the future course of proceedings. He would need a
lawyer at the stage of framing of charges against him and he would,
of course, need a lawyer to defend him in trial. It is therefore the
duty and obligation of the Magistrate before whom a person accused
of committing a cognizable offence is first produced to make him
fully aware that it is his right to consult and be defended by a
legal practitioner and, in case he has no means to engage a lawyer
of his choice, that one would be provided to him from legal aid at
the expenses of the State. The right flows from Articles 21 and 22
(1) of the Constitution and need to be strictly enforced. Supreme
Court as such directed all the Magistrates in the country to
faithfully discharge the aforesaid duty and obligation and further
make it clear that any failure to fully discharge the duty would
amount to dereliction in duty and would make the concerned
Magistrate liable to departmental proceedings.
The right to consult and
be defended by a legal practitioner however is not to be construed
as sanctioning or permitting the presence of a lawyer during police
interrogation. According to our system of law, the role of a lawyer
is mainly focused on Court proceedings. The accused would need a
lawyer to resist remand to police or judicial custody and for
granting of bail; to clearly explain to him the legal consequences
in case he intended to make a confessional statement in terms of
Sec. 164, Cr.P.C.; to represent him when the Court examines the
charge-sheet submitted by the police and decides upon the future
course of proceedings and at the stage of the framing of charges;
and beyond that, of course, for the trial. The right to access to a
lawyer in India is not based on the Miranda Principles, as
protection against self-incrimination, for which there are more than
adequate safeguards in Indian laws. (Mohammad Amir Kasab v. State
of Maharashtra; AIR 2012 SC 3565(F)
Arts. 21, 19(1)(a),
129, 215 - Civil PC (5 of 1908), S. 151 - Court proceedings -
Prohibition to publication of - Can be placed temporarily by Courts
in exercise of its inherent power which includes power to punish for
contempt’s
All
Courts which have inherent powers, i.e. the Supreme Court, the High
Courts and Civil Courts can issue prior restraint orders or
proceedings, prohibitory orders in exceptional circumstances
temporarily prohibiting publications of Court proceedings to be made
in the media and that such powers do not violate Article 19(1)(a).
One of the Heads on which Article 19(1) (a) rights can be restricted
is in relation to contempt of Court under Article 19(2). Article
129/Article 215 is in two parts. The first part declares that the
Supreme Court or the High Court shall be a Court of Record and shall
have all the powers of such a Court. The second part says includes
the powers to punish for contempt. These Articles save the
pre-existing powers of the Courts as Courts of record and that the
power includes the power to punish for contempt. As such a
declaration has been made in the Constitution that the said powers
cannot be taken away by any law made by the Parliament except to the
limited extent mentioned in Article 142(2) in the matter of
investigation or punishment of any contempt of itself. Reading
Article 19(2) which refers to law in relation to contempt of Court
with the first part of Article 129 and Article 215, it becomes clear
that the power is conferred on the High Court and the Supreme Court
to see that the administration of justice is not perverted,
prejudiced, obstructed or interfered with. To see that the
administration of justice is not prejudiced or perverted clearly
includes power of the Supreme Court to prohibit temporarily,
statements being made in the media which would prejudice or obstruct
or interfere with the administration of justice in a given case
pending in the Supreme Court or the High Court or even in the
subordinate Courts. Such statements which could be prohibited
temporarily would include statements in the media which would
prejudice the right to a fair trial of a suspect or accused under
Article 21. The object of the contempt law is not only to punish, it
includes the power of the Courts to prevent such acts which
interfere, impede or pervert administration of justice. Presumption
of innocence is held to be a human right. If in a given case the
appropriate Court finds infringement of such presumption by
excessive prejudicial publicity by the newspapers (in general), then
under inherent powers, the Courts of Record suo motu or on being
approached or on report being filed before it by subordinate Court
can under its inherent power under Article 129 or Article 215 pass
orders of postponement of publication for a limited period if the
applicant is able to demonstrate substantial risk of prejudice to
the pending trial and provided he is able to displace the
presumption of Open Justice and to that extent the burden will be on
the applicant who seeks such postponement of offending publication.
(Sahara India Real Estate Corpn. Ltd. and Ors. v. Securities and
exchange Board of India and Anr.; AIR 2012 SC 3829)
Arts. 22, 19 and 21—Preventive
detention—Permissible ground for
The Constitution
recognizes preventive detention though it takes away the liberty of
a person without any enquiry or trial. Preventive detention results
in negation of personal liberty of an individual; it deprives an
individual freedom and is not seen as compatible with the rule of
law, yet the Framers of the Constitution placed the same in Part III
of the Constitution. The Court has time and again given the
expression “personal liberty” its full significance and asserted how
valuable, cherished, sacrosanct and important the right of liberty
given to an individual in the Constitution was and yet legislative
power to enact preventive detention laws has been upheld in the
larger interest of the State security. (Dropti Devi vs. Union of
India; (2012) 2 SCC (Cri) 387)
Arts. 32, 226 and
136—Investigation—Transfer of, to CBI in case already such judice in
criminal courts—When proper and valid
The court is vested with very
wide powers in order to equip it adequately to be able to do
complete justice. Where the investigating agency has submitted the
charge-sheet before the court of competent jurisdiction, but it has
failed to bring all the culprits to book, the court is empowered
u/s. 319 CrPC to proceed against other persons who are not arrayed
as accused in the charge-sheet itself. The court can summon such
suspected persons and try them as accused in the case, provided the
court is satisfied of involvement of such persons in commission of
the crime from the record and evidence before it.
The court noticed that the
investigation of a case or filing of charge-sheet in a case does not
by itself bring the absolute end to exercise of power by the
investigating agency or by the court. Sometimes and particularly in
the matters of the present kind, the investigating agency has to
keep its options open to continue with the investigation, as certain
other relevant facts, incriminating materials and even persons,
other than the persons stated in the FIR as accused, might be
involved in the commission of crime.
CEC is not vested with any
investigative powers under the orders of this Court, or under the
relevant notifications, in the manner as understood under CrPC. CEC
is not conducting a regular inquiry or investigation with the object
of filing charge-sheet as contemplated u/s. 173 CrPC.
CEC is not discharging
quasi-judicial or even administrative functions, with a view to
determine any rights of the parties. It was not expected of CEC to
give notice to the companies involved in such illegalities or
irregularities, as it was not determining any of their rights. It
was simpliciter reporting matters to the Court as per the ground
realities primarily with regard to environment and illegal mining
for appropriate directions. It had made different recommendations
with regard to prevention and prosecution of environmentally harmful
and illegal activities carried on in collusion with government
officers or otherwise.
Contention (c) is advanced
on the premise that all matters stated by CEC are sub-judice before
one or the other competent court or investigating agency and thus,
this Court has no jurisdiction to direct investigation by CBI. In
any case, it is argued that such directions would cause them serious
prejudice. This argument is misplaced in law and is misconceived on
facts. Firstly, all the facts that had been brought on record by CEC
are not directly sub judice in their entirety, before a competent
forum or investigating agency. (Samaj Parivartan samudaya vs.
State of Karnataka; (2012)3 SCC (Cri) 365)
Art. 136 – Exercise of powers under –
Interference in criminal matters – Permissibility of
The powers of the Court
under Article 136 of the Constitution are very wide, but it would
not interfere with the concurrent findings of fact, save in
exceptional circumstances. It would interfere in the findings
recorded by the trial court as well as the High Court if it is found
that the High Court has acted perversely and/or disregarded any
vital piece of evidence which would shake the very foundation of the
prosecution case. In other words, the Court would exercise the
powers under Article 136 where the conclusion of the High Court is
manifestly perverse and unsupportable on the evidence on record.
(Narayan Manikrao Salgar v. State of Maharashtra; (2012) 8 SCC 622)
Arts. 141, 245 & 309 – Statute Law
vis-a-vis judicial decision – Primacy of statute law
On being selected by the
District Level Committee which had considered the candidature of
those sponsored by the employment exchanges, the respondents were
appointed as teachers purely on ad hoc basis between 1994 and 1996
by the District Education Officers. In furtherance of the policy
decision taken by the State Government, the services of the
respondents were regularised w.e.f. 1.10.2003. The respondents
challenged the provisional gradation list by filing a writ petition
on the ground that the same was discriminatory and prayed that their
seniority be fixed by taking into consideration their total length
of service including the ad hoc service. The High Court by the
impugned judgment held that the seniority of the respondents should
be fixed by taking into account their ad hoc service. Hence, the
instant appeal.
The court considers it
proper to notice the judgments on which reliance has been placed by
the learned counsel for the respondents. This consideration needs to
be prefaced with an observation that the cases in which recruitment
and conditions of service including seniority are regulated by the
law enacted by Parliament or the State Legislature or the Rules
framed under Article 309 of the Constitution, the general
proposition laid down in any judgment cannot be applied dehors the
relevant statutory provisions and dispute relating to seniority has
to be resolved keeping in view such provisions. (State of Haryana
and others v. Vijay Singh and others; (2012) 8 SCC 633)
Art. 226 - Scope of
The Writ Court exercising
jurisdiction under Article 226 of the Constitution is fully
empowered to interdict the State or its instrumentalities from
embarking upon a course of action to detriment of the rights of the
citizens, though, in the exercise of jurisdiction in the domain of
public law such a restraint order may not be issued against a
private individual. This, of course, is not due to any inherent lack
of jurisdiction but on the basis that the public law remedy should
not be readily extended to settlement of private disputes between
individuals. Even where such an order is sought against a public
body the Writ Court may refuse to interfere, if in the process of
determination disputed questions of fact or title would require to
be adjudicated. There is no universal rule or principle of law which
debars the Writ Court from entertaining adjudications involving
disputed questions of fact. In fact, in the realm of legal theory,
no question or issue would be beyond the adjudicatory jurisdiction
under Article 226, even if such adjudication would require taking of
oral evidence. However, as a matter of prudence, the High Court
under Article 226 of the Constitution, normally would not entertain
a dispute which would require it to adjudicate contested questions
and conflicting claims of the parties to determine the correct facts
for due application of the law. (M/s. Real Estate Agencies vs.
Govt. of Goa & Ors.; 2012(6) Supreme 598)
Arts. 226 and 227 – Code of Civil
Procedure 1908, Order 41 Rule 33 disqualification petitions – Delay
in disqualification proceedings
Interim Order passed by
High Court under Order 41 Rule 33 CPC while disposing of Letters
Patent Appeals preventing five named MLAs, from effectively
discharging their functions as Members of the Vidhan Sabha - Whether
such jurisdiction could at all have been invoked by High Court when
no final order had been passed by Speaker on the disqualification
petitions - Since the decision of Speaker on a petition under
paragraph 4 of Tenth Schedule concerns only a question of merger on
which the Speaker is not entitled to adjudicate, High Court could
not have assumed jurisdiction under its powers of review before a
decisions was taken by the Speaker under paragraph 6 of Tenth
Schedule to the Constitution- Restraining the Speaker from taking
any decision under paragraph 6 of Tenth Schedule was, beyond the
jurisdiction of High Court- Supreme Court opined that High Court had
no jurisdiction to pass such an order, which was in the domain of
Speaker- High Court Assumed the jurisdiction which it never had in
making the interim order which had the effect of preventing the five
MLAs in question from effectively functioning as Members of the
Haryana Vidhan Sabha - Hence, Direction given by High Court upheld
only to the extent it directed Speaker to decide petitions for
disqualification of five MLAs within a period of four months -
Remaining portion of the order disqualifying five MLAs from
effectively functioning as Members of Haryana Vidhan Sabha set
aside. (Speaker, Haryana Vidhan Sabha v. Kuldeep Bishnoi & Ors.;
2012 (7) Supreme 179)
Art. 226 – Relief
granted to the parties who moved the court immediately after the
cause arose cannot be taken advantage of by those who waited and
came to court belatedly
The relief
obtained by some persons, by approaching the Court immediately after
the cause of action has arisen, cannot be the basis for other
persons who have belatedly filed their petition, to take the benefit
of earlier relief provided, for the reason that, such persons cannot
be permitted to take impetus of an order passed by the court, at the
behest of another more diligent person. (V. Chandrasekaran & Anr.
Vs. Administrative Officer & Ors.; 2012(6) Supreme 612)
Art. 226—Principles of natural
justice—Applicability
The question of application of
principles of natural justice, suffice is to mention that once it is
admitted that the very election of petitioner was not in accordance
with Statute and facts in this regard are virtually admitted and
only one conclusion is possible, under Article 226 this Court is not
obliged to interfere with an order which has resulted in substantive
justice merely on the ground of some defect in the matter of
procedure i.e. denial of opportunity of hearing since observance of
principles of natural justice is not an empty formality. Where only
one conclusion is possible, this Court can decline to interfere in
exercise of power under Article 226 of the Constitution. (Smt.
Bhajno Devi vs. State of U.P.; 2012 (5) ALJ 583)
Art. 226 - Scope and ambit - Explanation
of
This power involves a duty
on the High Court to keep the inferior courts and tribunals within
the bounds of their authority and to see that they do what their
duty requires and that they do it in a legal manner. But this power
does not vest the High Court with any unlimited prerogative to
correct all species of hardship or wrong decisions made within the
limits of the jurisdiction of the Court or Tribunal. It must be
restricted to cases of grave dereliction of duty and flagrant abuse
of fundamental principle of law or justice, where grave injustice
would be done unless the High Court interferes. (Sita Ram
Bijpuriya vs. State of UP; 2012(3) ARC 746 (All HC)
Art. 311(2)—Protection U/Art. 311(2)—Not
available to personnel of Border Security Force, it is meant for
‘civil post’ under Union or State
There is no gainsaying the fact
that Article 311 of the Constitution provides for guarantees with
regard to dismissal, removal or reduction in rank of persons
employed in civil capacities under the Union of State. Article has
obvious reference to civil service. Under Entry 2 of List 1 of the
Seventh Schedule to the Constitution, the Parliament has been given
the power to make laws with regard to the naval, military and air
force as also to any other armed forces of the Union. In other
words, besides the regular naval, military and armed forces, the
Parliament can authorize the raising of any other kind of armed
forces of the Union. Deriving power from that source in the
Constitution of India, the Parliament had enacted the Border
Security Force Act, 1968 which provides for the Constitution and
regulation of an armed force of the Union for ensuring the security
of the borders of India and for matters connected therewith. Under
Section 3 of the Act, all officers, subordinate officers,
under-officers and other officers enrolled under the Act are put as
subject to the Act, wherever they may be, and all those persons are
required to remain so subject until retired, discharged, released,
removed from the force in accordance with the provisions of this Act
and the Rules. Section 4 provides for the constitution of the force
and section 6 provides for the enrollment to the force. Section 6(2)
provides that notwithstanding anything contained in the Act and the
Rules, every person who has for a continuous period of three months
been in receipt of pay as a person enrolled under the Act and borne
on the rolls of the Force shall be deemed to have been duly
enrolled. Thus a complete enclosure is provided to preserve the
force’s sensitivity and integrity. There is no escape from the
conclusion that officers, subordinate officers, under-officers and
other persons enrolled under the Act remain subject to the Act so
long as they remain in service. The petitioner of either case being
a Sub-Inspector was concededly a subordinate officer under rule
14(1)(b) of the B.S.F. Rules, 1969 framed under the Act. There is
also no manner of doubt that the B.S.F. being part of the Armed
Forces of the Union and hence part of the defence services of the
Union and this distinction takes the defence service out of the
ambit of Article 311 of the Constitution. And if that is so, neither
of the petitioner is entitled to invoke even principles of natural
justice under the general law of master and servant.
Accordingly, question No.2 is answered in favour of the
appellant and it is held that the protection under Article 311(2) of
the Constitution is not available to personnel of the Border
Security Force, as he does not hold a “Civil Post” under the Union
or a State. (Union of India vs. Indrajit Tewari; 2012 (5) ALJ
586)
BACK TO INDEX
Consumer Protection Act
Ss. 15, 17, 19 & 21—Pecuniary
jurisdiction—Complaint cannot be dismissed on ground of lack of
pecuniary jurisdiction
In Court’s view, both the
Fora below have gravely erred in the exercise of their jurisdiction.
We say so because once the District Forum having regard the
valuation of the claim had come to the conclusion that the valuation
of the claim exceeded the pecuniary jurisdiction of the District
Forum, the ideal/proper course for the District Forum was to return
the complaint to the complainant for presentation it before the Fora
having the requisite pecuniary jurisdiction. Instead of doing so,
the District Forum dismissed the complaint due to lack of pecuniary
jurisdiction without affording any opportunity to the petitioner to
pursue his remedy before the competent forum. The State Commission
also did not correct the said error of jurisdiction. Despite a
prayer having been made to the State Commission, it declined to
entertain the complaint in its original jurisdiction on a parity of
reason which is not easy to understand, least to approve. The
approach adopted by the Fora below has resulted into miscarriage of
justice as the complainant has been left high and try, and has been
relegated to approach the civil Court for redressal of his
grievance. We do not understand why a complainant, who is a consumer
within the meaning of Consumer Protection Act, 1986 and had raised a
consumer dispute should be relegated to the Civil Court. In Court’s
view the orders passed by the Fora below are legally unsustainable
and is accordingly set aside. (Meenu Aggarwal vs. JMD Promoters
Ltd.; 2012(2) CPR 439 (NC)
Ss. 15 and 17—Indian Telegraph Act, Sec.
78—Whether complaint of telephone dispute is maintainable before
consumer forum—Held, “No”
We have noticed that in [2009
CTJ 1062 (Supreme Court) (CP)], where Their Lordships have held
‘Consumer Forums have no jurisdiction to entertain complaints
relatable to telecom disputes’. As per the judgment passed by the
Hon’ble National Commission, 2011 CTJ 551 (CP) (NCDRC), where Their
Lordships have held any dispute between a telephone/mobile phone
subscriber and the telegraph authority can be resolved only by
taking recourse to arbitration proceedings. This judgment was passed
by the Hon’ble National Commission relying on the judgment of the
Hon’ble Supreme Court in General Manager, Telecom vs. M. Krishnan
and another. In view of the said judgments passed by the Hon’ble
supreme Court as well as Hon’ble National Commission Court has bound
to rely on the said judgments and in the instant case also we are
the opinion that the instant dispute can be resolved by taking
recourse to arbitration proceedings only. The Ld. Counsel for the
Appellant has also relied on the judgment passed by the Hon’ble
National Commission, reported in Vol. 1(1991) CPJ 14, wherein Their
Lordships have held that the Forum or Commission is empowered to
award compensation for any injury or loss suffered by consumer on
account of the negligence of the OP the claim must be substantiated
by sufficient evidence and the compensation has to be assessed not
arbitrarily but on the basis of well accepted legal principles. As
in the instant case the complaint is not maintainable before the
Consumer Forum in view of the abovementioned judgments we are not
inclined to discuss this point in the present case. (Tata Tele
Services Ltd. vs. Smt. Priya Prasad; 2012 (2) CPR 202)
Ss. 15 and 17—Power theft—Consumer Forum
should not interfere where matter is pending before criminal Court
In this case, Learned
District Forum, after having considered the material placed before
it by both parties, came to the conclusion that there was no
tampering with the supply meter and there was no theft of
electricity. On this finding, the Electricity Supply Company was
directed to refund the amount collected by it from the
respondent/complainant along with interest and compensation for
mental agony & cost of litigation.
Before State Commission,
the appellants have filed certified copies of the criminal complaint
filed by appellant against respondent/complainant and order sheets
recorded in the Criminal case by the Sessions Judge, Durg. These
documents, prima facie show that allegation was made by the
appellants against respondent regarding commission of offence of
theft of electricity and such matter is pending before a competent
Criminal Court. It is true that criminal complaint before competent
Court has been filed after passing of the impugned order and
therefore, it may be seen by the District Forum, as to whether
filing of such complaint after passing of such order, has some
effect on the finding by which respondent/complainant, has been
exonerated from charge of theft of electricity.
After having heard the arguments advanced by both parties, we find
that Electricity Supply Company, has taken this ground in the
written version from the beginning that the respondent/complainant,
was guilty of commission of offence of theft of electricity and if
bill was issued for a higher amount, then it does not come in the
category of deficiency of service. This question has been considered
by the District Forum, in the impugned order, but, now as criminal
case has been instituted against the respondent/complainant before a
competent court for deciding as to whether the
respondent/complainant has committed the offence of theft of
electricity or not, therefore, it appears reasonable to set aside
the impugned order and to remit the matter back to District Forum,
for considering the matter afresh in the light of criminal complaint
filed by the appellants against respondent/complainant and
considering the fact that criminal complaint is pending against
respondent/complainant on the same set of facts for trial of the
charge of theft of electricity. (C.G. State Power Distribution
Co. Ltd. Dagniya, Raipur through its Managing Director vs. Smt.
Preetpal Kaur; 2012 (2) CPR 98)
BACK TO INDEX
Contempt of Courts Act
Ss. 2 (a), 12 - Constitution of India,
Article 16 (4A) – Willful Disobedience of Court order – Reservation
in promotion - Essential ingredients of
In order to establish that
a person had deliberately an willfully committed contempt of Court,
two essential ingredients have to be proved. Firstly, it has to be
established that an order has been passed by the court which either
directs certain things to be done by a person or to restrain such
person or persons from doing certain acts and that the person or
persons had knowledge of the said order. Secondly, it has to be
established that despite having knowledge of such order, the person
concerned deliberately and willfully violated the same with the
intention of lowering the dignity and image of the Court. (Salauddin
Ahmed v. Samta Andolan; AIR 2012 SC 3891)
Contempt of Court - Role of court - The courts are expected to
take some what stringent view to prevent further institutional
damage and to protect the faith of the public in the justice
delivery system
The apology tendered even at the
outset of proceedings has to be bona fide, should demonstrate
repentance and sincere regret on the part of the contemner lest the
administration of justice is permitted to be crudely hampered with
immunity by the persons involved in the process of litigation or
otherwise. An apology which lacks bona fides and is intended to
truncate the process of law with the ulterior motive of escaping the
likely consequences of such flagrant violation of the orders of the
Court and disrespect to the administration of justice cannot be
accepted.
The rule of law has to be
maintained whatever be the consequences. The ‘welfare of people’ is
the supreme law and this enunciates adequately the ideal of ‘law’.
This could only be achieved when justice is administered lawfully,
judiciously, without any fear and without being hampered or
throttled by unscrupulous elements. The administration of justice is
dependent upon obedience or execution of the orders of the Court.
The contemptuous act which interfered with administration of justice
on one hand and impinge upon the dignity of institution of justice
on the other, bringing down its respect in the eye of the commoner,
are acts which may not fall in the category of cases where the court
can accept the apology of the contemner even if it is tendered at
the thresholds of the proceedings.
It is a settled principle of law that contempt is a
matter primarily between the Court and the contemner. The Court has
to take into consideration the behavior of the contemner, attendant
circumstances and its impact upon the justice delivery system as
well lowers the dignity of the Courts, then the Courts are expected
to take somewhat stringent view to prevent further intuitional
damage and to protect the faith of the public in the justice deliver
system. (Lalyaneshwari vs. Union of India; AISLJ 2012(3) 476)
BACK TO INDEX
Criminal Procedure Code
Ss. 24 and 25 – Public prosecutor –
Duties of
The parameters governing
the process of investigation of a criminal charge, the duties of the
investigating agency and the role of the courts after the process of
investigation is over and a report thereof is submitted to the
court, are exhaustively laid down in the different chapters of
Cr.P.C. Though the power of the investigating agency is large and
expansive and the courts have a minimum role in this regard, there
are inbuilt provisions in Cr.P.C. to ensure that investigation of a
criminal offence is conducted keeping in mind the rights of an
accused to a fair process of investigation. The mandatory duty cast
on the investigating agency to maintain a case diary of every
investigation on a day-to-day basis and the power of the court under
Section 172(2) Cr.P.C. and the plenary power conferred in the High
Court by Article 226 of the Constitution are adequate safeguards to
ensure the conduct of a fair investigation.
Though the primary duty of
a Public Prosecutor is to ensure that an accused is punished, his
duties extend to ensuring fairness in the proceedings and also to
ensure that all relevant facts and circumstances are brought to the
notice of the court for a just determination of the truth so that
due justice prevails. The courts must ensure fairness of the
investigative process so as to maintain the citizens’ rights under
Articles 19 and 21 of the Constitution and play an active role in
the trial. It is the responsibility of the investigating agency as
well as that of the courts to ensure that every investigation is
fair and does not erode the freedom of an individual except in
accordance with law. One of the established facets of a just, fair
and transparent investigation is the right of an accused to ask for
all such documents that he may be entitled to under the scheme
contemplated by Cr.P.C. (V.K. Sasikala v. State; (2012) 9 SCC
771)
S. 57 – Requirement for production of
arrested person before competent court within 24 hours which
excludes the journey time
It has not been disputed
before Court during the course of hearing, that the travel time
between Bhubaneshwar and Banapur is about three hours. Accordingly,
after having detained the appellant at Bhunbaneswar, she was
produced before the Court of the Judicial Magistrate, First Class,
Banapur at 7.00 p.m. on 16.1.2010. If the travel time is taken into
consideration, it is apparent that it would be unjust for the
appellant to contend, that she was produced before the court
concerned well after 24 hours of her arrest. It may be noted that
her contention would have been of substance, if she could have
established that she was arrested at 3.00 a.m. on 15.1.2010. The
Court have, however, accepted the determination rendered by the High
Court, that the appellant was arrested at 3.00 p.m. on 15.1.2010. It
is not disputed, that the appellant was produced before the Judicial
Magistrate, First Class, Banapur at 7.00 p.m. on 16.1.2010. Taking
into consideration the travel time, it cannot be stated that she
remained in detention well beyond 24 hours from her arrest i.e. till
her production before the Judicial Magistrate, First Class, Banapur.
The Court are also
satisfied in affirming the reasons recorded by the High Court that
the detention of the appellant did not substantially exceed 24 hours
i.e. after her arrest and before her production before the Judicial
Magistrate, First Class. (Subhashree Das v. State of Orissa and
others; (2012) 9 SCC 729)
S. 127—Maintenance—Enhancement
The petitioner filed an
application under Section 127 Cr.P.C. on 19.3.2010 seeking
enhancement of the monthly maintenance. The learned Judge, Family
Court, Dwarka vide the impugned order, after considering the income
of the parties and the material available on record, doubled the
amount of maintenance i.e. from Rs. 1,000/- to Rs. 2,000/- per
month, which is now being considered a very meager amount by the
petitioner for her survival. Hence inherent powers of this Court
have been invoked to get the enhancement of the maintenance from Rs.
1,000/- to Rs. 10,000/- per month.
The enhancement has been sought
primarily on the ground that she is entitled to have 1/3rd
salary of the respondent as maintenance to have same kind of living
standard.
Since neither the relationship
is in dispute nor the respondent disowns his responsibility to pay
the maintenance awarded to the petitioner, the real issue is the
quantum of maintenance. Undisputedly, for 11 years the petitioner
never considered herself to be destitute in need of any maintenance
from the respondent who was serving in Delhi Police even at that
time. The income of the parties is also not in dispute for the
reason that the petitioner is working in Anganwadi Centre and as per
the certificate dated 1.3.2012 placed on record by her, she is
receiving Rs. 4,000/- per month as honorarium. During the
proceedings before the concerned Family Court, the salary slip of
the respondent was proved through PW-2 ASI Ratan Singh which shows
the gross salary of the respondent Rs. 28, 664/- per month. It is
the case of the respondent that apart from maintaining himself,
responsibility to take care of his aged father and younger brother
is also on his shoulder. On the other hand, the petitioner has no
responsibility on her shoulders. Apart from deductions towards
Income Tax and on other counts, he is also contributing towards GPF
and responsibility to fulfill social obligations is also on his
shoulder because of inability of his father to fulfill the same and
younger brother being not suitably employed.
The respondent is attending his
duty in Delhi from his village either as daily passenger or must be
staying in barrack in exigency to perform his duty to be discharged
by him. It is not the case of petitioner that respondent is having
luxuries of life of which she has been deprived.
The petitioner, apart from the
honorarium being received by her, has been awarded Rs. 2,000/- per
month towards maintenance which cannot be termed as too low so as to
put the petitioner on the verge of vagrancy and destitution.
(Kamla Devi vs. Rajmal Singh; 2012 CrLJ 506 (Del)
S. 154 – F.I.R. – Appreciation of –
F.I.R. is not a substantive peace of evidence, it can be used for
corroboration or for contradiction
It is also a settled principle
of law that the first information report is not a substantive piece
of evidence and it cannot be placed on pedestal higher than the
statement on oath. The first information report could be used in
criminal case for Corroboration or for contradiction. It is lodged
before an officer, who is in-charge of the police station to set the
law in motion with regard to an incident, which takes place within
his jurisdiction and nothing beyond that. (Maya Azhagar and
another vs. Thangiah and another; 2012 ACJ 2529)
Sec. 154—FIR—Generally—What amounts to
and requirements of FIR—cryptic information/messages not to be
treated as FIR
The question that court has to
decide is whether the wireless message sent soon after the incident
on 5-12-1994 is the real FIR as contended on behalf of the defence
or whether the typed report subsequently lodged by PW 14 in
Muzaffarnagar Sadar Police Station is the FIR as contended on behalf
of the prosecution.
In the present case, PW 14, the
informant has chosen not to treat the wireless message but the
subsequent typed information as the FIR and the police has also not
treated the wireless message but the subsequent typed information as
the FIR. Moreover, the wireless message sent soon after the incident
on 5-12-1994 stated only that the people mixed with the crowd of
funeral procession for the cremation of Chottan Shukla have injured
the deceased by shooting him with revolver and have fled towards
Hajipur by different vehicles. This wireless message was cryptic and
did not sufficiently disclose the nature of the offence committed
much less the identity of the persons who committed the offence.
Unless and until more information was collected on how exactly the
deceased was killed, it was not mandatory for either PW 14 to lodge
the same as FIR or for the officer in charge of a police station to
treat the same as FIR. Such cryptic information has been held by
this Court not to be FIR in some cases.
In Sk. Ishaque vs. State of
Bihar, (1995) 3 SCC 392, Gulabi Paswan gave a cryptic information at
the police station to the effect that there was a commotion at the
village as firing and brickbatting was going on and this Court held
that this cryptic information did not even disclose the commission
of a cognizable offence nor did it disclose who were the assailants
and such a cryptic statement of Gulabi Paswan cannot be treated to
be an FIR within the meaning of Sec. 154 CrPC.
In court’s opinion, the trial
court and the High Court rightly treated the subsequent typed
written information lodged by PW 14 and not the wireless message as
the FIR. (Anand Mohan vs. State of Bihar; (2012) 3 SCC (Cri) 328)
S. 154—FIR—Discrepancies in
FIR—Ante-timed FIR—Effect of
A draft FIR
was, according to the learned counsel, prepared by PW 65, the
investigating officer which PW 1 is said to have signed without even
reading the same. This implied that the version given in the FIR was
not that of the witness, but of the person who had drafted the same.
It was further contended that although the FIR was recorded at 1.30
a.m., the body of the deceased was recovered only at about 5.40 a.m.
In the intervening period it was not known whether deceased was
alive or dead. The FIR purportedly registered at about 1.30 a.m. all
the same alleged the commission of an offence u/s. 302 IPC. This,
according to Mr. Singh, indicated that the FIR was actually
registered much after the recovery of the body.
Court did not see any
palpable error in the approach adopted by the High Court in
appreciating the evidence adduced by the prosecution. The deposition
of PWs 1 and 2 regarding the presence of the appellant at the place
of occurrence, his getting into a scuffle with the deceased in an
attempt to recover the dinghy and the assault on the deceased, who
was then pushed into the sea is, in our opinion, satisfactorily
proved. The discrepancies indicated by Mr. Jaspal Singh in the
recording of the FIR, or the offence under which it was registered
are not of much significance and do not, in our view, effect the
substratum of the prosecution case. (Abdul Nawaz vs. State of
W.B.; (2012) 3 SCC (Cri) 280)
S. 154 – FIR – All details as spoken by
PWs 1, 2, 3 were not mentioned in FIR – Effect of – It is just an
intimation of occurrence of an incident and need not contain all
facts related to said incident
Though it is stated that
all the details as spoken to by PWs 1, 2 and 3 were not mentioned in
the FIR, as rightly observed by the trial court, FIR is not an
encyclopaedia. It is just an intimation of the occurrence of an
incident and it need not contain all the facts related to the said
incident. (State of U.P. v. Munesh; (2012) 9 SCC 742)
S. 154 – FIR – Failure
to mention name of one accused - Not by itself sufficient to give
benefit of doubt to accused when prosecution has established its
case
The
Court said that all the three eye-witnesses to altercation and
strangulation named some of the accused persons while did not name
others specifically. However, they identified all the accused
persons in the Court as the persons who were present at the time of
the mischief, altercation and strangulation of the deceased. This
Court in the case of Tika Ram v. State of Madhya Pradesh [(2007) 15
SCC 760], while rejecting the argument that the name of the accused
is not mentioned in the FIR held that this would not by itself be
sufficient to reject the prosecution case as against this accused.
The court further held that where the prosecution is able to
establish its case, such omission by itself would not be sufficient
to give benefit of doubt to the accused. In the present case, as
already discussed, the prosecution has been able to establish its
case beyond reasonable doubt. (Shyamal Ghosh. v. State of West
Bengal; AIR 2012 SC 3539)
S. 155—Investigation—Methodology—Stated
The Investigating Officer, as
well as the doctor who are dealing with the investigation of a
criminal case, are obliged to act in accordance with the police
manual and the known canons of medical practice, respectively. They
are both obliged to the diligent, truthful and fair in their
approach and investigation. A default or breach of duty,
intentionally or otherwise, can sometimes prove fatal to the case of
the prosecution. An Investigating Officer is completely responsible
and answerable for the manner and methodology adopted in completing
his investigation. Where the default and omission is so flagrant
that it speaks volumes of a deliberate act or such irresponsible
attitude of investigation, no court can afford to overlook it,
whether it did or did not cause prejudice to the case of the
prosecution. It is possible that despite such default/omission, the
prosecution may still prove its case beyond reasonable doubt and the
court can so return its finding. But, at the same time, the default
and omission would have a reasonable chance of defeating the case of
the prosecution in some events and the guilty could go scot-free. We
may illustrate such kind of investigation with an example where a
huge recovery of opium or poppy husk is made from a vehicle and the
Investigating Officer does not even investigate or make an attempt
to find out as to who is the registered owner of the vehicle and
whether such owner was involved in the commission of the crime or
not. Instead, he merely apprehends a cleaner and projects him as the
principal offender without even reference to the registered owner.
Apparently, it would prima facie be difficult to believe that a
cleaner of a truck would have the capacity to buy and be the owner,
in possession of such a huge quantity, i.e., hundreds of bags, of
poppy husk. The investigation projects the poor cleaner as the
principal offender in the case without even reference to the
registered owner. (Dayal Singh vs. State of Uttaranchal; 2012
Cr.L.J. 4323 (SC)
Ss. 161, 164 -
Constitution of India, Art. 20 (3) - Protection against
self-incrimination - Strongly provided by provisions of Code - Need
to draw upon provisions of principles set down by U.S. Supreme Court
in Miranda Case (384 US 436 (1966) does arise
A bare
reference to the provisions of the Cr. P. C. would show that those
provisions are designed to afford complete protection to the accused
against self-incrimination. Section 161 (2) of the Cr. P. C.
disallows incriminating answers to police interrogations. Section
162 (1) makes any statements, in any form, made to police officers
inadmissible excepting those that may lead to discovery of any fact
(vide Section 27 of the Evidence Act) and that may constitute a
dying declaration (vide Section 32 of the Evidence Act). Coupled
with these provisions of the Cr. P. C. is Section 25 of the Evidence
Act that makes any confession by an accused made to a police officer
completely inadmissible. Section 163 of the Cr. P. C. prohibits the
use of any inducement, threat or promise by a police officer. And
then comes Section 164, Cr. P. C., dealing with the recording of
confessions and statements made before a Magistrate. Sub-section (1)
of Section 164 provides for recording any confession or statement in
the course of an investigation, or at any time before the
commencement of the inquiry or trial; sub-section (2) mandates the
Magistrate to administer the pre-confession caution to the accused
and also requires him to be satisfied, as a judicial authority,
about the confession being made voluntarily; sub-section (3)
provides one of the most important protections to the accused by
stipulating that. in case the accused produced before the Magistrate
declines to make the confession, the magistrate shall not authorize
his detention in police custody; sub-section (4) incorporates the
post-confession safeguard and requires the Magistrate to make a
memorandum at the foot of the confession regarding the caution
administered to the accused and a certificate to the effect that the
confession as recorded is a full and true account of the statement
made. Section 164 of the Cr. P. C. is to be read along with Section
26 of the Evidence Act, which provides that no confession made by
any person whilst he is in the custody of a police officer, unless
it be made in the immediate presence of a Magistrate, shall be
proved as against such person. It is thus clear that the protection
to the accused against any self-incrimination guaranteed by the
Constitution is very strongly built into the Indian statutory
framework and there is absolutely no reason to draw any help from
the Miranda principles for providing protection against
self-incrimination to the accused.
The
provisions of the Cr. P. C. and the Evidence Act fully incorporate
the Constitutional guarantees, and that the statutory framework for
the criminal process in India affords the fullest protection to
personal liberty and dignity of an individual. No flaws lie in the
provisions in the statutes books, but the devil lurks in the
faithful application and enforcement of those provisions. It is
common knowledge that there is a great hiatus between what the law
stipulates and the realities on the ground in the enforcement of the
law. The abuses of the provisions of the Cr. P. C. are perhaps the
most subversive of the right to life and personal liberty, the most
precious right under the Constitution, and the human rights of an
individual. Access to a lawyer is, therefore, imperative to ensure
compliance with statutory provisions, which are of high standards in
themselves and which, if duly complied with, will leave no room for
any violation of Constitutional provisions or human rights abuses.
(Mohammed Ajmal Mohammad Amir Kasab v. State of Maharashtra; AIR
2012 SC 3565)
S. 173(5) – Nature of
Section 173(5)
–Applications filed by appellant for certified copies or in the
alternative for inspection of certain unmarked and unexhibited
documents in a trial pending against her- Rejection of –Challenge
there against- Two Orders passed by High Court upholding rejection
of said applications- Appeals- No dispute that appellant arrayed as
second accused and Smt. J. Jayalalitha, then Chief Minister of the
State was arrayed as first accused in the case for commission of
offences under Section 120B of IPC and Section 13(2) read with
Section 13(1) (e) of P of C Act, 1988- Though prosecution tried to
cast some cloud on issue as to whether unmarked and unexhibited
documents were a part of the report under Section 173 Cr.P.C., no
denial by prosecution that said unmarked and unexhibited documents
were presently in the custody of Court- Besides, accused in her
application had furnished specific details of said documents –Hence
a perception of possible prejudice to appellant, if the documents or
at least an inspection thereof was denied, loomed large-Directions
issued allowing an inspection of unmarked and unexhibited documents
by appellant to balance the need to bring prosecution in the instant
case to its earliest conclusion and at the same time to protect and
preserve the right of the accused to a fair trial- appeals disposed
of. Said provision makes it incumbent on Investigating agency to
forward/transmit to concerned court all documents/statement etc. on
which prosecution proposes to rely in the course of the trial
–Section 173(5), however, is subject to provisions of Section 173(6)
which confers a power on the investigating officer to request the
concerned court to exclude any part of statement or documents
forwarded under Section 173(5) from copies to be granted to accused.
(V.K. Sasikala. V. State Rep. by Superintendent of Police;
2012(7) Supreme 146)
Ss. 190, 473—IPC, S. 406—Cognizance of
offence—Bar of limitation—Effect
In the instant case, learned
counsel for the parties and have gone through the record. The
submission of the learned counsel for the applicant that the
cognizance taken by the Court below is without jurisdiction as
maximum punishment for offence under S. 406, IPC is three years or
fine or both whereas the cognizance has been taken after the lapse
of three years from the date of offence alleged in the complaint is
not acceptable. The complaint cannot be said to be barred by
limitation as Section 473, Cr.P.C. provides extension of period of
limitation in certain cases and reads as under “Notwithstanding
anything contained in the foregoing provisions of this Chapter, any
Court may make cognizance of an offence after the expiry of period
of limitations, if it is satisfied on the facts and in the
circumstances of the case that the delay has been properly explained
or that it is necessary so to do in the interests of justice”. Under
the present case facts and circumstances of the case the Court below
satisfied itself from the perusal of the complainant and witnesses
to take cognizance in the interest of justice. The complaint could
not be thrown out at threshold merely on the ground of limitation.
So far as the question that the property given at or about the time
of marriage is “joint property” therefore, no offence is made out
punishable under S. 406, I.P.C. is not acceptable. (Rakesh Kumar
vs. Smt. Rama Agarwal; 2012 (5) ALJ 490)
Ss. 197 (2), 482 - Scope of
Section 197(2), 482 -
Complaint filed by complaint against police personnel alleging that
his son was killed in a fake encounter by the accused named in the
complaint-Petition there against on ground that sanction required
under Section 197 of Code was not obtained-High Court while allowing
petition filed by Dy. S.P., dismissed the petitions of other police
personnel - Appeals there against - The protection given under
Section 197 of the Code is available only when the alleged act done
by the public servant is reasonably connected with the discharge of
his official duty and is not merely a cloak for doing the
objectionable act. Instantly police must get protection given under
Section 197 of the Code because acts complained of where so
integrally connected with or attached to their office as to be
inseparable from it –No inference should be drawn that police action
was indefensible or vindictive or that police where not acting in
discharge of their official duty- Where continuation of a
prosecution would lead to abuse of process of court , power under
Section 482 of the Code must be exercised and proceedings must be
quashed- Instant case was one of such case where proceedings
initiated against police personnel needed to be quashed - Appeal
filed by complainant dismissed while proceedings initiated against
police personal held liable to be quashed. (Om Praksh & Ors. v.
State of Jharkhand Through the Secretary, Department of Home,
Ranchi-1 & Anr.; 2012(7) Supreme 161)
S. 202 – Scope of enquiry by Court under
S.202 Cr.P.C. – Limited only to the ascertainment of the truth or
false-hood of the allegations made in the complaint
The Court had an occasion to
consider the scope of the inquiry by the Magistrate under Section
202 of the old Code. This Court referred to the earlier two
decisions in Vadilal Panchal and Chandra Deo Singh and in para 4 of
the Report held as under:
Scope of the inquiry under Section 202 of
the Code of Criminal Procedure is extremely limited – limited only
to the ascertainment of the truth or falsehood of the allegations
made in the complaint-
(i) on the materials placed by the
complainant before the court;
(ii) for the limited purpose of finding out
whether a prima facie case for issue of process has been made out;
and
(iii) for deciding the question purely from
the point of view of the complainant without at all adverting to any
defence that the accused may have. In fact it is well settled that
in proceedings under Section 202 the accused has got absolutely no
locus standi and is not entitled to be heard on the question whether
the process should be issued against him or not.
(Manharibhai Muljibhai Kakadia & Anr.
Vs. Shaileshbhai Mohanbhai Patel & Ors.; 2012(7) Supreme 257)
S. 202 - Taking cognizance of an offence
– Does not involve action of any kind
In R.R. Chari v. The State of
Uttar Pradesh; [(1951) SCR 312], Court stated that taking cognizance
did not involve any formal action or indeed action of any kind but
it takes place no sooner a Magistrate applies his mind to the
suspected commission of an offence.
The distinction between “taking
cognizance of an offence” and “issuance of process” and observed as
under:
“Cognizance is taken at the initial stage
when the Magistrate applies his judicial mind to the facts mentioned
in a complaint or to a police report or upon information received
from any other person that an offence has been committed. The
issuance of process is at a subsequent stage when after considering
the material placed before it the court decides to proceed against
the offenders against whom a prima facie case is made out.”
In the context of Sections 200,
202 and 203, the expression ‘taking cognizance’ has been used in the
sense of taking notice of the complaint or the first information
report or the information that offence has been committed on
application of judicial mind. It does not necessarily mean issuance
of process. (Manharibhai Muljibhai Kakadia & Anr. Vs.
Shaileshbhai Mohanbhai Patel & Ors.; 2012(7) Supreme 257)
Ss. 202 and 203 – CJM applying his mind
and on appreciation of materials on record directing investigation
by police – Had taken cognizance of the offence – Dismissal of
complaint U/s, 203 cannot be said to be at pre-cognizance stage
In the instant case, from the
order passed by the CJM, there remains no doubt that on 18.06.2004,
he had taken cognizance although he postponed issue of process by
directing an investigation to be made by Police Officer. The
submission of the learned counsel for the respondent no. 1 that the
CJM had not taken cognizance in the matter and the complaint was
dismissed under Section 203 at the pre-cognizance stage has no
substance and is rejected. (Manharibhai Muljibhai Kakadia & Anr.
Vs. Shaileshbhai Mohanbhai Patel & Ors.; 2012(7) Supreme 257)
Ss. 204, 70, 71, 74 and 76 – NBW –
Issuance of – Duty and discretion of court regarding, explained
Since the execution of a
non-bailable warrant (NBW) directly involves curtailment of liberty
of a person, a warrant of arrest cannot be issued mechanically, but
only after recording satisfaction, that in the facts and
circumstances of the case, it is warranted. The courts have to be
extra-cautious and careful while directing issuance of an NBW, else
a wrongful detention would amount to denial of constitutional
mandate envisaged in Article 21 of the Constitution. Since
discretion in this behalf is entrusted with the court, it is not
advisable to lay down immutable formulate on the basis whereof
discretion could be exercised. It is for the court concerned to
assess the situation and exercise discretion judiciously,
dispassionately and without prejudice. At the same time, there is no
gainsaying that the welfare of an individual must yield to that of
the community. Therefore, in order to maintain the rule of law and
to keep the society in functional harmony, it is necessary to strike
a balance between an individual’s rights, liberties and privileges
on the one hand, and the State on the other. (Raghuvansh
Dewanchand Bhasin v. State of Maharashtra and another; (2012) 9 SCC
791)
Ss. 207, 208, 173 and 313 – Documents
which accused is entitled to inspect – Scheme of Cr.P.C explained
While Section 207 first
proviso empowers the court to exclude from the copies to be
furnished to the accused such portions as may be covered by Section
173(6), the second proviso to Section 207 empowers the court to
provide to the accused an inspection of the documents instead of
copies thereof, if, in the opinion of the court it is not
practicable to furnish to the accused the copies of the documents
because of the voluminous content thereof. The issue that has
emerged is, therefore, somewhat larger than what has been projected
by the State and what has been dealt with by the High Court. The
question which arises herein is no longer one of compliance or
non-compliance with the provisions of Section 207 Cr.P.C. and
travels beyond the confines of the strict language of the provisions
of Cr.P.C. and touches upon the larger doctrine of a free and fair
trial that has been painstakingly built up by the courts on a
purposive interpretation of Article 21 of the Constitution. It is
not the stage of making of the request for inspection of documents
or the efflux of time that has occurred or the prior conduct of the
accused that is material. What is of significance is if in a given
situation the accused comes to the court contending that some papers
forwarded to the court by the investigating agency have not been
exhibited by the prosecution as the same favours the accused, the
court must concede a right in the accused to have an access to the
said documents, if so claimed. This is the core issue in the case
which must be answered affirmatively. In this regard, it is
difficult to agree with the view taken by the High Court that the
accused must be made to await the conclusion of the trial to test
the plea of prejudice that he may have raised. Such a plea must be
answered at the earliest and certainly before the conclusion of the
trial, even though it may be raised by the accused belatedly. This
is how the scales of justice in criminal jurisprudence have to be
balanced. (V.K. Sasikala v. State; (2012) 9 SCC 771)
S. 216 – Scope of - S. 216 empowers Trial
Court to alter/add charge(s), at any stage before conclusion of the
trial
The trial Court after
appreciating the evidence on record, came to the conclusion that all
three accused (A-l to A-3) did not act in furtherance of any common
intention. Bhimanna (A-2) was solely responsible for the death of
the deceased. Therefore, Bhimanna (A-2) alone could be convicted
under Section 302 IPC and further under Sections 447and 504 read
with Section 34 IPC. However, Yenkappa (A-I) and Suganna (A-3) acted
without sharing any common intention with Bhimanna (A-2). Thus, they
could not be convicted under Section 302 IPC and could be convicted
only under Sections 447 and 504 read with Section 34 IPC. The court
further held that Yenkappa (A-I) and Suganna (A-3) could also be
convicted for the offence of causing injury Nos. 2 to 11, but no
charge had been framed under any of the Sections 323, 324, 325, 326
and 327 IPC in this regard. Therefore, no punishment could be
awarded to them for the same. The trial Court held as under:
“The prosecution has
proved the charge under Section 302 read with Section 34 IPC only
against Bhimanna and further the other charges under Sections 447
and 504 read with Section 34 IPC are proved against Yenkappa (A-I)
and Suganna (A-3). Even though this court has accepted that A-I and
A-3 have also assaulted by Mos. 1 to 3 respectively, on the deceased
but those assaults are not the direct result of death of the
deceased Bheemanna. Moreover, in the charge-sheet, there is no
incorporation of charges such as Sec. 323,324,325,326 or 327 of IPC
against these accused. Hence, in the absence of such specific charge
regarding causing bleeding injuries by deadly weapons, by these A-I
and A-3, this court is unable to convict them under any such charge,
which is admittedly not incorporated in the charge-sheet and also
not framed against them by this court.”
(Bhimanna vs. State of Karnataka; 2012(6) Supreme 533)
S. 235(2) - Court is
obliged to make genuine effort to elicit any information or
particulars from accused or prosecution which are relevant for
awarding proper sentence even if accused remains silent -
Enhancement of sentence of life imprisonment to death - Made only on
basis of statement given by accused - Liable to be set aside - Case
remanded
The
Court said that the High Court has only mechanically recorded what
the accused has said and no attempt has been made to elicit any
information or particulars from the accused or the prosecution which
are relevant for awarding a proper sentence. The accused, of course,
was informed by the Court of the nature of the show-cause-notice.
What was the nature of show cause notice? The nature of the
show-cause-notice was whether the life sentence awarded by the trial
court be not enhanced to death penalty. No genuine effort has been
made by the Court to elicit any information either from the accused
or the prosecution as to whether any circumstance exists which might
influence the Court to avoid and not to award death sentence.
Awarding death sentence is an exception, not the rule, and only in
rarest of rare cases, the Court could award death sentence. The
state of mind of a person awaiting death sentence and the state of
mind of a person who has been awarded life sentence may not be the
same mentally and psychologically. The court has got a duty and
obligation to elicit relevant facts even if the accused has kept
totally silent in such situations. In the instant case, the High
Court has not addressed the issue in the correct perspective bearing
in mind those relevant factors, while questioning the accused and,
therefore, committed a gross error of procedure in not properly
assimilating and understanding the purpose and object behind Section
235(2), Cr.P.C.
In such
circumstances, we are inclined to set aside the death sentence
awarded by the High Court and remit the matter to the High Court to
follow Section 235(2), Cr.P.C. in accordance with the principles
laid down. The conviction awarded by the High Court, however, stands
confirmed. The High Court is requested to pass fresh orders
preferably with a period of six months from the date of the receipt
of the copy of this order. The appeal is allowed to that extent.
(Ajay Pandit alias Jagdish Dayabhai Patel & Anr. v. State of
Maharashtra; AIR 2012 SC 3422)
Ss. 306, 460(g)—Grant of pardon by Magistrate—Validity of
In the present case Magistrate
tendered the pardon during investigation of the case. The
alternative submission of learned counsel for the petitioner is that
Magistrate has no power to tender pardon during investigation under
Section 306, Cr.P.C. and therefore, tender of pardon granted by
Magistrate in the present case is without jurisdiction as Magistrate
had no power to tender pardon during investigation. The submission
made by learned counsel for the petitioner appears to be attractive
but has no force in view of Section 460, Cr.P.C. The Section 460,
Cr.P.C. provides irregularities which do not vitiate proceedings and
includes tender of pardon under Section 306, Cr.P.C.
It has been stated in the
petition that respondent No. 2 moved two applications before Chief
Judicial Magistrate, Solan for disposal. The Magistrate granted
pardon on 7.1.2010 to respondent No. 4 and on 20.1.2010 to
respondent No. 3. There is no averment in the petition that
Magistrate while granting pardon to respondent Nos. 3, 4 did not act
bona fide or Magistrate has acted malafide or due to any other
extraneous reason. In absence of plea of mala fide or lack of bona
fide it can be safely presumed that Magistrate while granting pardon
to respondent Nos. 3, 4 acted bona fide. The applications were filed
for tendering pardon before Chief Judicial Magistrate. It cannot be
said that Chief Judicial Magistrate had no jurisdiction to entertain
applications for grant of pardon in a case arising out under the Act
during investigation.
The Chief Judicial Magistrate
marked the applications to the Magistrate who as part of his duty
took up the applications and tender pardon to respondent No. 3, 4.
There is no specific averment in the petition raising grievance
against procedural illegality committed by Magistrate while granting
pardon. The grievance has been raised regarding the jurisdiction of
Magistrate to tender pardon. It has already been held that
Magistrate in a given situation has jurisdiction to tender pardon in
a case arising under the Act. The act of Magistrate tendering pardon
to respondent Nos. 3, 4 during investigation is protected by Section
460(g), Cr.P.C. when it has been found that Magistrate has acted
while tendering pardon to respondent Nos. 3, 4 bona fide erroneously
in good faith. (Ashok Sehgal vs. State of H.P. & Ors.; 2012 CrLJ
4963 (HP)
S. 313 – Scope of
Court has observed that
first and foremost, as the law stands today, the statement of the
accused recorded under Section 313 of the Code cannot be put against
the accused person. The courts may rely on a portion of the
statement of the accused and find him guilty in consideration of the
other evidence against him led by the prosecution. The statement
made under this Section should not be considered in isolation but in
conjunction with evidence adduced by the prosecution. (Balaji
Gunthu v. State of Maharashtra; 2012 (6) Supreme 710)
S. 313 – No answer or
false answer to incriminating circumstances put to accused u/s 313
CrPC - Affect of – Deemed to provide missing link in prosecution
story
In this
case Court has held that it is obligatory on the part of the accused
while being examined under Section 313 Cr.P.C., to furnish some
explanation with respect to the incriminating circumstances
associated with him, and the Court must take note of such
explanation even in a case of circumstantial evidence, in order to
decide, as to whether or not, the chain of circumstances is
complete. When the attention of the accused is drawn to
circumstances that inculpate him in relation to the commission of
the crime, and he fails to offer an appropriate explanation, or
gives a false answer with respect to the same, the said act may be
counted as providing a missing link for completing the chain of
circumstances. (Pudhu Raja & Anr. v. State of Rep. by Inspector
of Police; 2012 (6) Supreme 688)
S. 313—Duty of accused while making such
statement—Failure of discharge such duty—Effect of
It is the duty of the
accused to explain the incriminating circumstance proved against him
while making a statement under Section 313 CrPC. Keeping silent and
not furnishing any explanation for such circumstance is an
additional link in the chain of circumstances to sustain the charges
against him. Recovery of incriminating material at his disclosure
statement duly proved is a very positive circumstance against him.
(Neel Kumar vs. State of Haryana; (2012) 3 SCC (Cri) 271)
Ss. 313, 207, 208 and 173 – Examination
of accused – Purpose of – Access to document in custody of court at
S. 313 stages
The examination of an
accused under Section 313 Cr.P.C. not only provides the accused an
opportunity to explain the incriminating circumstances appearing
against him in the prosecution evidence but such examination also
permits him to put forward his own version, if he so chooses, with
regard to him involvement or otherwise in the crime alleged against
him. Viewed from the latter point of view, the examination of an
accused under Section 313 Cr.P.C. does have a fair nexus with the
defence that he may choose to bring, if the need arises. Any failure
on the part of the accused to put forward his version of the case in
his examination under Section 313 Cr.P.C. may have the effect of
curtailing his rights in the event the accused chooses to take up a
specific defence and examine the defence witnesses. Besides, the
answers given by the accused in his examination, if incorrect or
incomplete, may also jeopardise him as such incorrect or incomplete
answers may have the effect of strengthening the prosecution case
against the accused. If the above is the avowed purport and object
of the examination of an accused under Section 313 Cr.P.C., the
appellant cannot be denied an access to the documents in respect of
which prayers have been made in the applications herein.
The perception of prejudice
is for the accused to develop and if the same is founded on a
reasonable basis it is the duty of the court as well as the
prosecution to ensure that the accused should not be made to labour
under any such perception and the same must be put to rest at the
earliest. Such a view is an inalienable attribute of the process of
a fair trial that Article 21 of the Constitution guarantees to every
accused. (V.K. Sasikala v. State; (2012) 9 SCC 771)
S. 320 – Compoundable
offences – Abatement or attempt to commit such offences under
section 34/145 I.P.C. – Also compoundable in same manner
Section
320 of the Code articulates public policy with regard to the
compounding of offences. It catalogues the offences punishable under
IPC which may be compounded by the parties without permission of the
Court and the composition of certain offences with the permission of
the court. The offences punishable under the special statutes are
not covered by Section 320. When an offence is compoundable under
Section 320, abatement of such offence or an attempt to commit such
offence or where the accused is liable under Section 34 or 149 of
the IPC can also be compounded in the same manner. A person who is
under 18 years of age, or is an idiot or a lunatic is not competent
to contract compounding of offence but the same can be done on his
behalf with the permission of the court. If a person is otherwise
competent to compound an offence is dead his legal representatives
may also compound the offence with the permission of the court.
Where the accused has been committed for trial or he has been
convicted and the appeal is pending, composition can only be done
with the leave of the court to which he has been committed or with
the leave of the appeal court, as the case may be. The revisional
court is also competent to allow any person to compound any offence
who is competent to compound. The consequence of the composition of
an offence is acquittal of the accused. Sub-section (9) of Section
320 mandates that no offence shall be compounded except as provided
by this Section. Obviously, in view thereof the composition of an
offence has to be in accord with Section 320 and in no other manner.
(Gian Singh vs. State of Punjab & Another; 2012(6) Supreme 1)
Ss. 320 and 482 –
Quashing a proceeding becoming futile after compromise and
compounding of offence – Two different things – By quashing a
proceeding court does not convert a non-compoundable offence into a
compoundable one
Where High
Court quashes a criminal proceeding having regard to the fact that
dispute between the offender and victim has been settled although
offences are not compoundable, it does so as in its opinion,
continuation of criminal proceedings will be an exercise in futility
and justice in the case demands that the dispute between the parties
is put to an end and peace is restored; securing the ends of justice
being the ultimate guiding factor. No doubt, crimes are acts which
have harmful effect on the public and consist in wrong doing that
seriously endangers and threatens well-being of society and it is
not safe to leave the crime- doer only because he and the victim
have settled the dispute amicably or that the victim has been paid
compensation, yet certain crimes have been made compoundable in law,
with or without permission of the Court. In respect of serious
offences like murder, rape, dacoity, etc; or other offences of
mental depravity under IPC or offences of moral turpitude under
special statutes, like Prevention of Corruption Act or the offences
committed by public servants while working in that capacity, the
settlement between offender and victim can have no legal sanction at
all. However, certain offences which overwhelmingly and
predominantly bear civil flavour having arisen out of civil,
mercantile, commercial, financial, partnership or such like
transactions or the offences arising out of matrimony, particularly
relating to dowry, etc. or the family dispute, where the wrong is
basically to victim and the offender and victim have settled all
disputes between them amicably, irrespective of the fact that such
offences have not been made compoundable, the High Court may within
the framework of its inherent power, quash the criminal proceeding
or criminal complaint or F.I.R if it is satisfied that on the face
of such settlement, there is hardly any likelihood of offender being
convicted and by not quashing the criminal proceedings, justice
shall be casualty and ends of justice shall be defeated. The above
list is illustrative and not exhaustive. Each case will depend on
its own facts and no hard and fast category can be prescribed.
The position
that emerges from the above discussion can be summarised thus: the
power of the High Court in quashing a criminal proceeding or FIR or
complaint in exercise of its inherent jurisdiction is distinct and
different from the power given to a criminal court for compounding
the offences under Section 320 of the Code. Inherent power is of
wide plenitude with no statutory limitation but it has to be
exercised in accord with the guideline engrafted in such power viz;
(i) to secure the ends of justice or (ii) to prevent abuse of the
process of any Court. In what cases power to quash the criminal
proceeding or complaint or F.I.R may be exercised where the offender
and victim have settled their dispute would depend on the facts and
circumstances of each case and no category can be prescribed.
However, before exercise of such power, the High Court must have due
regard to the nature and gravity of the crime. Heinous and serious
offences of mental de pravity or offences like murder, rape,
dacoity, etc. cannot be fittingly quashed even though the victim or
victim's family and the offender have settled the dispute. Such
offences are not private in nature and have serious impact on
society, Similarly, any compromise between the victim and offender
in relation to the offences under special statutes like Prevention
of Corruption Act or the offences committed by public servants while
working in that capacity etc; cannot provide for any basis for
quashing criminal proceedings involving such offences. But the
criminal cases having overwhelmingly and pre-dominating civil
flavour stand on different footing for the purposes of quashing,
particularly the offences arising from commercial, financial,
mercantile, civil, partnership or such like transactions or the
offences arising out of matrimony relating to dowry, etc. or the
family disputes where the wrong is basically private or personal in
nature and the parties have resolved their entire dispute. In this
category of cases, High Court may quash criminal proceeding if in
its view, because of the compromise between the offender and victim,
the possibility of conviction is remote and bleak and continuation
of criminal case would put accused to great oppression and prejudice
and extreme injustice would be caused to him by not quashing the
criminal case despite full and complete settlement and compromise
with the victim. In other words, the High Court must consider
whether it would be unfair or contrary to the interest of justice to
continue with the criminal proceeding or continuation of the
criminal proceeding would tantamount to abuse of process of law
despite settlement and compromise between the victim and wrongdoer
and whether to secure the ends of justice, it is appropriate that
criminal case is put to an end and if the answer to the above
question(s) is in affirmative, the High Court shall be well within
its jurisdiction to quash the criminal proceeding. (Gian Singh
vs. State of P&H High Court; 2012(6) Supreme 1)
Ss. 357(3), 421 and 431 – Imposition of
separate sentence of imprisonment for default in payment of
compensation – Permissibility of
The idea behind directing
the accused to pay compensation to the complainant is to give him
immediate relief so as to alleviate his grievance. In terms of
Section 357(3) Cr.P.C. compensation is awarded for the loss or
injury suffered by the person due to the act of the accused for
which he is sentenced. If merely an order directing compensation is
passed, it would be totally ineffective. It could be an order
without any deterrence or apprehension of immediate adverse
consequences in case of its non-observance. The whole purpose of
giving relief to the complainant under Section 357(3) Cr.P.C. would
be frustrated if he is driven to take recourse to Section 421
Cr.P.C. Order under Section 357(3) Cr.P.C. must have potentiality to
secure its observance. Deterrence can only be infused into the order
by providing for a default sentence. If Section 421 Cr.P.C. puts
compensation ordered to be paid by the court on a par with fine so
far as mode of recovery is concerned, then there is no reason why
the court cannot impose a sentence in default of payment of
compensation as it can be done in case of default in payment of fine
under Section 64 IPC. The conclusion, therefore, is that the order
to pay compensation may be enforced by awarding sentence of
imprisonment in default. (R. Mohan v. A.K. Vijaya Kumar; (2012) 8
SCC 721)
S. 360—Release on probation—Entitlement
Accused persons having been
convicted of offences under Penal Code, plea by other accused that
he was below 21 years of age. Accused found to be below 21 yrs. on
day of occurrence and had never been convicted of an offence
earlier. Accused held entitled to be released on probation for good
behavior by giving benefit of S. 360 of Code. (Afsar vs. State of
Delhi; 2012 CrLJ 4969)
S. 368 - High Court simply disposing the
appeal against conviction – Elaborate procedure laid down not
followed – Not permissible – Matter remitted
It is
the grievance of the appellants/ accused that when they filed
regular appeal before the High Court challenging the conviction
under Section 302 IPC and sentence of life imprisonment, the High
Court without going into all the materials including oral and
documentary evidence disposed of their appeal affirming the judgment
of the Trial Court. In view of the above contention, we have gone
through the impugned judgment of the, High Court. As rightly pointed
out by the learned counsel appearing on behalf of the appellants,
after narrating the case of the prosecution and the defence as well
as the order of the Sessions Judge convicting the appellants,
without adverting to all the materials, the High Court has merely
disposed of the appeal. The procedure followed by the High Court in
a matter of this nature is not acceptable. Elaborate procedures have
been prescribed under Section 386 of Cr.P.C. for disposal of the
appeal by the Appellate Court. It is the duty of an Appellate Court
to look into the evidence adduced in the case arrive at an
independent conclusion as to whether the said evidence can be relied
upon or not and even it can be relied upon then whether the
prosecution can be said to have proved beyond reasonable doubt on
the said evidence. The credibility of a witness has to be adjudged
by Appellate Court in drawing inference from proved and admitted
facts. Further appeal cannot be disposed of without examining
records/merits (Vide Padam Singh Vs. State of U.P.,1 AIR 2000 SC 361
and Bani Singh & Others Vs. State of U.P'2 1996 (4) SCC, 720. The
said recourse has not been followed by the High Court. In view of
the same, without expressing anything on the merits of the claim of
either party, we set aside the impugned judgment of the High Court
and remit it to the High Court. We request the High Court to restore
the appeal on its file and dispose of the same as early as possible
preferably within a period of six months. Learned counsel for the
appellants has brought to our attention to the fact that the
appellants are in jail for a period of more than 11 years and seek
for an order of bail from this Court. Since we are now remitting the
matters to the High Court, the appellants are free to make such
claim before the High Court. With the above observation, the appeals
are disposed of. (Iqbar Abdul Samiya Malek v. State of Gujarat;
2012 (7) Supreme 126)
S. 368 – Law relating
to appeal against acquittal - Restated
The law
on the issue of interference with an order of acquittal is to the
effect that only in exceptional cases where there are compelling
circumstances and the judgment in appeal is found to be perverse,
the appellate court can interfere with the order of the acquittal.
The appellate court should bear in mind the presumption of innocence
of the accused and further that the trial court's acquittal bolsters
the presumption of innocence. Interference in a routine manner where
the other view is possible should be avoided, unless there are good
reasons for interference. (Pudhu Raja & Anr. v. State of Rep. By
inspector of Police; 2012 (6) Supreme 688)
S. 368 – Minor contradiction/omissions in
evidence is not material - Review of evidence by appellate in
exceptional case
Court
has observed that, while appreciating.-the evidence, the court has
to take into consideration whether the contradictions/omissions were
of such magnitude so as to materially affect the trial. Minor
contradictions, inconsistencies, embellishments or improvements in
relation to trivial matters, which do not effect the core of the
case of the prosecution, must not be made a ground for rejection of
evidence, in its entirety. The trial court, after going through the
entire evidence available, must form an opinion about the
credibility of the witnesses, and the appellate court in the normal
course of action, would not be justified in reviewing the same
again, without providing justifiable reasons for the same. (Pudhu
Raja & Anr. v. State of Rep. By inspector of Police; 2012 (6)
Supreme 688)
S. 378 – Applicability of – While setting
aside an order of acquittal the appellate court must specifically
record a finding that the order of acquittal is perverse
It is true that it would not be
possible for the appellate Court to interfere with the order of
acquittal passed by the trial Court without rending specific
finding, namely, that the decision of the trial Court is perverse or
unreasonable resulting in miscarriage of justice. At the same time,
it cannot be denied that the appellate Court while entertaining an
appeal against the judgment of acquittal by the trial Court is
entitled to re-appreciate the evidence and come to an independent
conclusion. We are conscious of the fact that in doing so, the
appellate Court should consider every material on record and the
reasons given by the trial Court in support of its order of
acquittal and should interfere only on being satisfied that the view
taken by the trial Court is perverse and unreasonable resulting in
miscarriage of justice. We also reiterate that if two views are
possible on a set of evidence, then the appellate Court need not
substitute its own view in preference to the view of the trial Court
which has recorded an order of acquittal. (Shyam Babu vs. State
of U.P.; 2012(6) Supreme 571)
Ss. 378 & 386—Appeal against
acquittal—Scope of interference—Principles reiterated
The law of interfering with the
judgment of acquittal is well settled. It is to the effect that only
in exceptional cases where there are compelling circumstances and
the judgment in appeal is found to be perverse, the appellate court
can interfere with the order of the acquittal. The appellate court
should bear in mind the presumption of innocence of the accused and
further that the trial court’s acquittal bolsters the presumption of
innocence. Interference in a routine manner where the other view is
possible should be avoided, unless there are good reasons for
interference. (Salim Gulab Pathan vs. State of Maharashtra;
(2012) 3 SCC (Cri) 293)
S. 438 – Bail – Presence of accused
person at the place of occurrence carrying arms established – Not
entitled to bail
It is not necessary for us to
delineate the factual position all over again. All relevant facts
have already been noticed in the foregoing paragraphs. From the
sequence of facts narrated. it is apparent that accused nos. 1, 6
and 11 are the main accused, as they are alleged to have determined
the course of events of the incident dates 30.4.2011, which is
subject matter of the complaint in First In formation Report no. 135
of 2011 registered at Police Station Chandrayangutta. The other
accused had their own individual roles. Prima facie, the roles
attributed to the respective accused, as have been depicted in the
video clipping recorded by the listed witness no. 2 Shri Shaik Salem
cannot be overlooked. Insofar as the aforesaid video clipping is
concerned, reference may be made to the following observations
recorded in the chargesheet dated 30.6.2011 filed with reference to
the allegations contained in First Information Report no. 135 of
2011 registered at Police Station Chandrayangutta:-
“The video clipping
recorded by LW-2 Shaik Salem shows the presence of the accused at
the scene i.e. A-2 with a butcher's knife, AA Ibrahim stabbing Akbar
with dagger, A-3 Abdullah struggling to release his weapon from the
hands of LW-12 MLA Balala with the support of accused A-7 and A-14.
A-5 Awad Bin Awad Younus Yafai carrying a cricket bat and racing to
give a blow. The video also shows the severely injured Akbaruddin
being shifted into Gypsy by LW-l Mansoor Awalgi, LW-2 Mohamood
Awalgi, LW-ll AI Kaseri LW-28 Bawazeer and LW- 13 Habeeb Osman,
LW-14 Mustafa Baig, LW-l3 Samad Bin Abided, LW-19 MD Shareed LW-8
Fayyaz Khan are also found at the scene of offence in the
videograph.”
It is
therefore apparent, that the aforesaid video clipping notices the
presence and participation of accused nos. 2, 3, 4, 5, 7 and 14.
Therefore, as of now, prima facie, the participation of these
accused in the occurrence of 30.4.2011 cannot be seriously doubted,
unless of course, during the course of evidence, the video clipping
is shown to be doctored.
The
allegations, as they appear in the charge-sheet dated 30.6.2011,
leave no room for doubt that the accusations are of a very serious
nature. In broad day light, at 11.10 AM, an elected representative
of the people was attacked, without any fear of the repercussions.
The attacks resulted in serious injuries to him. In the aforesaid
attack, at least two of the accused were in possession of guns. The
MLA is alleged to have received gun shot injuries as well. The
allegations constitute an open challenge to civil society. Persons
involved in the alleged incident can not be accepted to remain
disciplined if enlarged on bail. It is likely that they would
threaten witnesses, which would severely prejudice the outcome of
the trial. In fact, it has been noticed in the impugned order passed
by the High Court that accused no. 8, after his release on bail, had
picked up a quarrel with the MLA on 1.3.2012, and an entry of the
aforesaid fact was recorded in the Station General Diary. The
aforesaid factual position has been noticed in paragraph 10 of the
impugned order. The same was emphatically highlighted by the learned
Additional Solicitor General who represented the State of Andhra
Pradesh. It is also apparent, that if the trial concludes by
returning a finding against the accused, they would be liable to be
subjected to extremely severe punishment(s). As of now, the period
of their custody is trivial in comparison to the punishment
prescribed for the offences for which they are charged.
Insofar as the other cases filed
by the State of Andhra Pradesh are concerned, a video clipping
clearly demonstrates the presence of accused nos. 2 to 5, 7 and 14
at the place of occurrence. As such, bail granted to accused nos. 2,
3, 5, 7 and 14 (since accused no. 4 whose presence was shown in the
video clipping, has already died) by the High Court, is hereby set
aside. Taking into consideration the fact that the complainant, in
the First Information Report, has involved a large number of members
in one family, wherein the accused nos. 1, 2 and 6 are real
brothers, and the other accused are their children, it would be just
and appropriate to affirm the order passed by the High Court qua all
the accused other than the main accused and the accused depicted in
the video clipping. Accordingly, the order of the High Court
extending the benefit of bail to accused nos. 2, 3, 5, 7 and 14 is
hereby set aside. The bail granted to the rest of the accused, by
the High Court, is affirmed. (Younus Bin Omer Yafai @ Younus Bhai
& Ors vs. State of A.P., State of Andhra Pradesh vs. Awad Bin Younus
Yafai Etc., State of Andhra Pradesh vs. Mohammed Bin Saleh Wahlan &
Ors, State of Andhra Pradesh vs. Abdulla Bin Younus Yafai; 2012(7)
Supreme 442)
S. 438 – Refusal of Anticipatory Bail - Consideration for
This appeal is directed against
the final order dated 19.09.2011 passed by the High Court of
Judicature at Bombay in Criminal Application No. 786 of 2011 whereby
the High Court dismissed the application for anticipatory bail filed
by the appellant herein.
In this case, the point for
consideration in this appeal is whether the appellant has made out a
case for grant of anticipatory bail under Section .438 of the Code
of Criminal Procedure, 1908 (in short 'the Code').
It is stated, by the respondents
that after the order of this
Court dated 23.09.2011 granting interim protection, the appellant
has misused his liberty in creating hindrance to the investigation
and continues to scuttle it and also intimidating and pressurizing
the Complainant as well as the prosecution witnesses.
In the light of the above
discussion and in view of the mandate prescribed in Section 438 of
the Code, Court has fully agreed with the conclusion arrived at by
the Additional Sessions Judge and the High Court in rejecting the
relief of anticipatory bail. (Maruti Nivrutti Navale vs. State of
Maharashtra & Anr.; 2012(6) Supreme 577)
S. 438 – Anticipatory bail – S. 438 and
Special Statutes – S. 3(1)(x), SC/ST (Prevention of Atrocities) Act
– Non entitlement to anticipatory bail with respect to special
Statute
Section 18 of the SC/ST
Act crates a bar for invoking Section 438 Cr.P.C. However, a duty is
cast on the court to verify the averments in the complaint and to
find out whether an offence under Section 3(1) of the SC/ST Act has
been prima facie made out. In other words, if there is a specific
averment in the complaint, namely, insult or intimidation with
intent to humiliate by calling with caste name, the accused persons
are not entitled to anticipatory bail. When an offence is registered
against a person under the provisions of the SC/ST Act, no court
shall entertain an application for anticipatory bail, unless it
prima facie finds that such an offence is not made out.
Section 18 of the SC/ST Act
creates a bar for invoking Sectin 438 of the Code. However, a duty
is cast on the court to verify the averments in the complaint and to
find out whether an offence under Section 3(1) of the SC/ST Act has
been prima facie made out. In other words, if there is a specific
averment in the complaint, namely, insult or intimidation with
intent to humiliate by calling with caste name, the accused persons
are not entitled to anticipatory bail.
The scope of Section 18 of
the SC/ST Act read with Section 438 of the Code is such that it
creates a specific bar in the grant of anticipatory bail. When an
offence is registered against a person under the provisions of the
SC/ST Act, no court shall entertain an application for anticipatory
bail, unless it prima facie finds that such an offence is not made
out. Moreover, while considering the application for bail, scope for
appreciation of evidence and other material on record is limited.
The court is not expected to indulge in critical analysis of the
evidence on record. When a provision has been enacted in the Special
Act to protect the persons who belong to the Scheduled Castes and
the Scheduled Tribes and a bar has been imposed in granting bail
under Section 438 of the Code, the provision in the Special Act
cannot be easily brushed aside by elaborate discussion on the
evidence. (Vilas Pandurang Pawar v. State of Maharashtra; (2012)
8 SCC 795)
Ss. 438 and 82 – Anticipatory bail –
Grant of – Proper exercise of discretionary jurisdiction for
disposal of bail application
Before considering the
claim of the appellant, it is useful to refer Section 438 of the
Code relating to grant of bail to a person who is apprehending
arrest which reads as under:-
“438. Direction for grant of bail to
person apprehending arrest.-(1) Where any person has reason to
believe that he may be arrested on accusation of having committed a
non-bailable offence, he may apply to the High Court or the Court of
Session for a direction under this section that in the event of such
arrest he shall be released on bail; and that court may, after
taking into consideration, inter alia, the following factors,
namely-
(i)
the nature and gravity of the accusation;
(ii)
the antecedents of the applicant including the fact as to
whether he has previously undergone imprisonment on conviction by a
court in respect of any cognizable offence.
(iii)
The possibility of the applicant to flee from justice; and
(iv)
Where the accusation has been made with the object of
injuring or humiliating the applicant by having him so arrested,
either reject the application forthwith or issue an interim order
for the grant of anticipatory bail;
Provided that, where the High Court or, as the case may be, the
Court of Session, has not passed any interim order under this
sub-section or has rejected the application for grant of
anticipatory bail, it shall be open to an officer in charge of a
police station to arrest, without warrant the applicant on the basis
of the accusation apprehended in such application.”
It makes it clear that in a
non-bailable offence if a person has reason to believe that he may
be arrested, he is free to apply to the High Court or the Court of
Session praying that in the event of such arrest, he shall he
released on bail. The belief that the applicant may be arrested must
be founded on reasonable grounds. While considering such a request,
the Court has to take into consideration the nature and the gravity
of the accusation, antecedents, possibility of the applicant to flee
from justice, etc. Further, normally, the Court should not exercise
its discretion to grant anticipatory bail in disregard of the
magnitude and seriousness of the matter. The matter regarding the
unnatural death of the daughter-in-law at the house of her in-laws
was still under investigation and the appropriate course to adopt
was to allow the Magistrate concerned to deal with the same on the
basis of the material before the Court.
From these materials and
information, it is clear that the present appellant was not
available for interrogation and investigation and was declared as
“absconder”. Normally, when the accused is “absconding” and declared
as a “proclaimed offender”, there is no question of granting
anticipatory bail. The court reiterate that when a person against
whom a warrant had been issued and is absconding or concealing
himself in order to avoid execution of warrant and declared as a
proclaimed offender in terms of Section 82 of the Code he is not
entitled to the relief of anticipatory bail. (Lavesh v. State
(NCT of Delhi); (2012) 8 SCC 730)
S. 439 - Bail – Principles for grant of
On
relying of the case, in Ram Govind Upadhyay v. Sudarshan Singh and
Others! [(2002) 3 SCC 598], it has been opined that the grant of
bail though involves exercise of discretionary power of the Court,
such exercise of discretion has to be made in a judicious manner and
not as a matter of course. Heinous nature of the crime warrants more
caution and there is greater chance of rejection of bail, though,
however dependent on the factual matrix of the matter. The said case
the learned Judges referred to the decision in Prahlad Singh Bhati
v. NCT, Delhi and Another [(2001) 4 SCC 280] and stated as follows:-
"(a) While granting
bail the court has to keep in mind not only the nature of the
accusations, but the severity of the punishment, if the accusation
entails a conviction and the nature of evidence in support of the
accusations.
(b) Reasonable
apprehensions of the witnesses being tampered with or the
apprehension of there being a threat for the complainant should also
weigh with the court in the matter of grant of bail.
(c) While it is not
expected to have the entire evidence establishing the guilt of the
accused. beyond reasonable doubt but there ought always to be a
prima facie satisfaction of the court in support of the charge.
(d) Frivolity in
prosecution should always be considered and it is only the element
of genuineness that shall have to be considered in the matter of
grant of bail, and in the event of there being some doubt as to the
genuineness of the prosecution, in the normal course of events, the
accused is entitled to an order of Bail”.
Court
are absolutely conscious that liberty of a person should not be
lightly dealt with, for deprivation of liberty of a person has
immense impact on the mind of a person. Incarceration creates a
concavity in the personality of an individual. Sometimes it causes a
sense of vacuum. Needless to emphasize, the sacrosanctity of liberty
is paramount in a civilized society
It
is a well accepted principle that the concept of liberty is not in
the realm of absolutism but is a restricted one. The cry of the
collective for justice, its desire for peace and harmony and its
necessity for security cannot be allowed to be trivialized. The life
of an individual living in a society governed by Rule of Law has to
be regulated and such regulations which are the source in law
subserve the social balance and function as a significant instrument
for protection of human rights and security of the collective. It is
because fundamentally laws are made for their obedience so that
every member of the society lives peacefully in a society to achieve
his individual as well as social interest. That is why Edmond Burke
while discussing about liberty opined, "it is regulated freedom”
It is also to be kept in
mind that individual liberty cannot be accentuated to such an extent
or elevated to such a high pedestal which would bring in anarchy or
disorder in the society. The prospect of greater justice requires
that law and order should prevail in a civilized milieu. True it is,
there can be no arithmetical formula for fixing the parameters in
precise exactitude but the adjudication should express not only
application of mind but also exercise of jurisdiction on accepted
and established norms. Law and order in a society protect the
established precepts and see to it that contagious crimes do not
become epidemic. In an organized society the concept of liberty
basically requires citizens to be responsible and not to disturb the
tranquility and safe which every well-meaning person desires. Having
said about the sanctity of liberty and the restrictions imposed by
law and the necessity of collective security, the Court held an as
to what is the connotative concept of bail and said that, in
Halsbury's Laws of England [Halsbury's Laws of England, 4th
Edn.,Vol. 11, para 166] it has been stated thus:-
"The effect of granting bail is not to set
the defendant (accused) at liberty but to release him from the
custody of law and to entrust him to the custody of his sure ties
who are bound to produce him to appear at his trial at a specified
time and place. The sureties may seize their principal at any time
and may discharge themselves by handing him over to the custody of
law and he will then be imprisoned.”
(Ash Mohammad v. Shiv Raj Singh @ Lala
Babu & Anr.; 2012 (6) Supreme 722)
Ss. 464/465 - Defect in framing of charge
– Immaterial unless causes prejudice to the accused
In Sanichar Sahni v. State of
Bihar, AIR 2010 SC 3786, AIR 2010 SC 3786, this Court dealt with the
aforementioned issue elaborately, and upon consideration of a large
number of earlier judgments, held as under:
"Therefore, ....................... unless
the convict is able to establish that defect in framing the charges
has caused real prejudice to him and that he was not informed as to
what was the real case against him and that he could not defend
himself properly, no interference is required on mere
technicalities. Conviction order in fact is to be tested on the
touchstone of prejudice theory.”
In present case, the defect in
framing of the charges must be so serious that it cannot be covered
under Sections 464/465 Cr.P.C., which provide that, an order of
sentence or conviction shall not be deemed to be invalid only on the
ground that no charge was framed, or that there was some
irregularity or omission or misjoinder of charges, unless the court
comes to the conclusion that there was also, as a consequence, a
failure of justice. In determining whether any error, omission or
irregularity in framing the relevant charges, has led to a failure
of justice, the court must have regard to whether an objection could
have been raised at an earlier stage, during the proceedings or not.
(Darbara Singh vs. State of Punjab; 2012(6) Supreme 584)
S. 482 - Inherent
power to do complete and substantial justice – Should not be
exercised as against the express bar of law
Section 482 of the Code, as its very
language suggests, saves the inherent power of the High Court which
it has by virtue of it being a superior court to prevent abuse of
the process of any court or otherwise to secure the ends of justice.
It begins with the words, 'nothing in this Code' which means that
the provision is an overriding provision. These words leave no
manner of doubt that none of the provisions of the Code limits or
restricts the inherent power. The guideline for exercise of such
power is provided in Section 482 itself i.e., to prevent abuse of
the process of any court or otherwise to secure the ends of justice.
As has been repeatedly stated that Section 482 confers no new powers
on High Court; it merely safeguards existing inherent powers
possessed by High Court necessary to prevent abuse of the process of
any Court or to secure the ends of justice. It is equally well
settled that the power is not to be resorted to if there is specific
provision in the Code for the redress of the grievance of an
aggrieved party. It should be exercised very sparingly and it should
not be exercised as against the express bar of law engrafted in any
other provision of the Code.
In the
very nature of its constitution, it is the judicial obligation of
the High Court to undo a wrong in course of administration of
justice or to prevent continuation of unnecessary judicial process.
This is founded on the legal maxim quando lex aliquid alicui
concedit, conceditur et id sine qua res ipsa esse non protest. The
full import of which is whenever anything is authorised, and
especially if, as a matter of duty, required to be done by law, it
is found impossible to do that thing unless something else not
authorised in express terms be also done, may also be done, then
that something else will be supplied by necessary intendment. Ex
debito justitiae is inbuilt in such exercise; the whole idea. is to
do real, complete and substantial justice for which it exists. The
power possessed by the High Court under Section 482 of the Code is
of wide amplitude but requires exercise with great caution and
circumspection. (Gian
Singh vs. State of Punjab & Another; 2012(6) Supreme 1)
S. 482—Quashment of
proceedings—Grounds—Amicable settlement—Cognizance of matrimonial
offences taken—Settlement of disputes by parties—High Court
rejecting appellant husband’s request for quashment on ground of
non-appearance of respondent wife before court
Leave granted. This appeal
is directed against the judgment and order passed by the High Court
of Delhi in Rajiv Saxena vs. State, CRLMC No. 3420 of 2010, order
dated 1.11.2010 (Del).
The learned Magistrate has
taken cognizance of the offence pleaded in the FIR u/ss. 498-A, 496
read with Section 34 of the Penal Code, 1860. Aggrieved by the same,
the appellant had approached the High Court by filing Criminal Misc.
C. No. 3420 of 2010 and in that he had stated that the parties have
settled the matter and, therefore, the proceedings before the
learned Magistrate need not be continued and the same requires to be
quashed. The High Court, in the impugned judgment has observed that
since the respondent wife is not appearing before the High Court,
the request of the appellant cannot be granted.
This Court, while
entertaining the special leave petition had issued notices to the
respondents. The respondent wife has entered appearance through her
learned counsel. She has also filed the counter-affidavit. In that
she states that the request of the appellant may be granted.
The respondent wife is also
present before the Court. She is agreeable for the request made by
her husband.
In view of the above, the
request of the appellant is granted and the proceedings before the
learned Magistrate in Case No. 31 of 2008 dated 16.6.2008, District
South West, PS CAW Nanakpura, New Delhi are quashed. The appeal is
disposed of accordingly. Ordered accordingly. (Rajiv Saxena vs.
State (NCT of Delhi); (2012) 3 SCC (Cri) 327)
S. 482—Inherent power—Scope—F.I.R.
disclosing non-compoundable offences can be quashed in appropriate
case
The factual details, earlier
decision, various offences u/s. 320 of the Code and invocation of
Section 482 of the Code, we fully concur with the said conclusion.
In the case on hand, irrespective of the earlier dispute between
Respondent No. 2- the complainant and the appellant being Accused
No. 3 as well as Accused Nos. 1 and 2 subsequently and after getting
all the materials, relevant details etc., the present appellant
(Accused No. 3) sworn an affidavit with bona fide intention securing
the right, title and interest in favour of Respondent No. 2 herein-
the Complainant. In such bona fide circumstances, the power u/s. 482
may be exercised. Further, in view of the settlement arrived at
between Respondent No. 2- the complainant and the appellant (Accused
No. 3), there is no chance of recording a conviction insofar as the
present appellant is concerned and the entire exercise of trial is
destined to be an exercise in futility. Inasmuch as the matter has
not reached the stage of trial, we are of the view that the High
Court, by exercising the inherent power u/s. 482 of the Code even in
offences which are not compoundable u/s. 320, may quash the
prosecution. However, as observed in Shiji (supra), the power u/s.
482 has to be exercised sparingly and only in cases where the High
Court is, for reasons to be recorded, of the clear view that
continuance of the prosecution would be nothing but an abuse of the
process of law. In other words, the exercise of power must be for
securing the ends of justice and only in cases where refusal to
exercise that power may result in the abuse of the process of law.
(Jayrajsinh Digvijaysinh Rana vs. State of Gujarat; 2012 Cr.L.J.
3900 (SC)
S. 482—Quashing of criminal trial not
permissible solely on ground of delay
Criminal offence is
considered as a wrong against the State and the society even though
it has been committed against an individual. Normally, in serious
offences, prosecution is launched by the State and a Court of law
has no power to throw away prosecution solely on the ground of
delay. Mere delay in approaching a Court of law would not by itself,
afford a ground for dismissing the case, though it may be relevant
circumstance in reaching a final verdict. (Ranjan Dwivedi vs.
C.B.I., Through the Director General; 2012 Cr.L.J. 4206 (SC)
Ss. 482, 320—Quashing of criminal
proceedings in exercise of inherent power is distinct from power of
compounding of offence
Quashing of offence or criminal
proceedings on the ground of settlement between an offender and
victim is not the same thing as compounding of offence. They are
different and not interchangeable. Strictly speaking, the power of
compounding of offences given to a Court under Section 320 is
materially different from the quashing of criminal proceedings by
the High Court in exercise of its inherent jurisdiction. In
compounding of offences, power of a criminal Court is circumscribed
by the provisions contained in Section 320 and the Court is guided
solely and squarely thereby while, on the other hand, the formation
of opinion by the High Court for quashing a criminal offence or
criminal proceeding or criminal complaint is guided by the material
on record as to whether the ends of justice would justify such
exercise of power although the ultimate consequence may be acquittal
or dismissal of indictment. Where High Court quashes a criminal
proceeding having regard to the fact that dispute between the
offender and victim has been settled although offences are not
compoundable, it does so as in its opinion, continuation of criminal
proceedings will be an exercise in futility and justice in the case
demands that the dispute between the parties is put to an end and
peace is restored; securing the ends of justice being the ultimate
guiding factor. No doubt, crimes are acts which have harmful effect
on the public and consist in wrong doing that seriously endangers
and threatens well-being of society and it is not safe to leave
crime-doer only because he and the victim have settled the dispute
amicably or that the victim has been paid compensation, yet certain
crimes have been made compoundable in law, with or without
permission of the Court. In respect of serious offences like murder,
rape, dacoity, or other offences of mental depravity under IPC or
offences of moral turpitude under special statutes, like Prevention
of Corruption Act or the offences committed by public servants while
working in that capacity, the settlement between offender and victim
can have no legal sanction at all. However, certain offences which
overwhelmingly and predominantly bear civil flavour having arisen
out of civil, mercantile, commercial, financial, partnership or such
like transactions or the offences arising out of matrimony,
particularly relating to dowry, etc. or the family dispute, where
the wrong is basically to victim and the offender and victim have
settled all disputes between them amicably, irrespective of the fact
that such offences have not been made compoundable, the High Court
may within the framework of its inherent power, quash, the criminal
proceeding or criminal complaint or F.I.R. if it is satisfied that
on the face of such settlement, there is hardly any likelihood of
offender being convicted and by not quashing the criminal
proceedings; justice shall be casualty and ends of justice shall be
defeated. Inherent power is of wide plenitude with no statutory
limitation but it has to be exercised in accord with the guideline
engrafted in such power viz; (i) to secure the ends of justice or
(ii) to prevent abuse of the process of any Court. In what cases
power to quash the criminal proceeding or complaint or F.I.R. may be
exercised where the offender and victim have settled their dispute
would depend on the facts and circumstances of each case and no
category can be prescribed. However, before exercise of such power,
the High Court must have due regard to the nature and gravity of the
crime. (Gian Singh vs. State of Punjab; 2012 Cr.L.J. 4934 (SC)
S. 482 – Exercise of inherent powers of
High Court – Principles, reiterated
Supreme Court has
observed that it was not proper for the High Court to rely on
affidavits submitted by the witnesses in coming to any conclusion
especially in serious offences. Hence, the conclusion of the High
Court that no case had been made out against Respondent 1-accused
was erroneous. The plea of leniency as Respondent 1-accused was on
the verge of retirement and had faced agony of investigation since
2007, has to be rejected as in serious cases showing mercy may send
wrong signals. The proceedings against Respondent 1-accused are
restored and the court which may be seized of this matter shall deal
with it strictly on merits and in accordance with law. (State of
Rajasthan v. Rajkumar Agarwal; (2012) 8 SCC 616)
BACK TO INDEX
Criminal Trial
Accused – Despite having been mentioned
in the rukka, the person not arrayed as accused
Learned
counsel for the appellant in the forefront submitted that having
regard to the specific reference made in the rukka about the
presence of Surjit Singh but yet not being made a party to the crime
and non-consideration of the grievance of the said Surjit Singh with
reference to the extent of injuries sustained by him which according
to him were inflicted upon him by the complainant party, the
prosecution case was not truthful, tampering of the whole case with
a view to pin down the appellants and the other accused by
fabricating the evidence. Learned counsel for the State in his
submission, however, pointed out that there could not have been any
false case fastened on the appellants inasmuch as the rukka which
was prepared at 10.30 p.m. at the hospital was received at the
police station and thereafter the law was set in motion by
registering the FIR without any loss of time. According to learned
counsel, the rukka was written at 10.30 p.m. and the FIR was
registered at 10.35 p.m. wherein the entire allegations brought out
in the rukka were duly carried out and in the said circumstances,
there was no basis at all for submission made on behalf of the
appellants alleging false case foisted against the appellant. We
find force in the said submission of learned counsel for the State.
As far as non-inclusion of Surjit Singh (OW-2) as an accused or as a
witness is concerned, though in the first blush, it may appear as
though some deliberate attempt was made at the instance of the
prosecution to suppress certain vital factors, on a close scrutiny,
we find that except referring to the name of Surjit Singh in the
rukka, there was no specific overt act alleged against him in regard
to his participation in the actual crime of assault or inflicting of
injuries or use of any weapon against either the deceased or any
other person. Therefore, the non-inclusion of Surjit Singh in the
array of accused by the prosecution cannot be taken so very
seriously in order to doubt the whole genesis of the case alleged
against the appellant and the other accused. (Avtar Singh vs.
State of Haryana, and Kirpal Singh @ Pala & Ors vs. State of Haryana
& Ors.; 2012(7) Supreme 423)
Circumstantial evidence – Motive is
significant and important
It is evident that in
spite of the fact that in case there is no independent witness of
recoveries and panch witnesses are only police personnel, it may not
affect the merits of the case. In the instant case, the defence did
not ask this issue in the cross-examination to Inspector Shamsher
Singh (PW.21) as why the independent person was not made the
witness. More so, it was the duty of the appellant to furnish some
explanation in his statement under Section 313 Cr.PC., as under what
circumstances his car had been parked at the Delhi Airport and it
remained there for 3 hours on the date of occurrence. More so, the
call records of his telephone make it evident that he was present in
the vicinity of the place of occurrence and under what circumstances
recovery of incriminating material had been made on his voluntary
disclosure statement. Merely making a bald statement that he was
innocent and recoveries had been planted and the call records were
false and fabricated documents, is not enough as none of the said
allegations made by the appellant could be established. In view of
the above, Court do not find any force in this appeal. The appeal is
therefore, dismissed accordingly. (Munish
Mubar vs. State of Haryana; 2012(7) Supreme 405)
Conviction - Accused cannot be convicted
solely on medical evidence brushing aside eye witness evidence
The High Court has also
relied upon the post-mortem report of the Doctor. In our opinion,
since the entire evidence of the eye- witnesses has not been
accepted by the High Court, it could not have merely relied upon the
post-mortem report to convict the appellant for an offence under
Section 302 of the LP.C. Further, in our view, the post-mortem
report should be in corroboration with the evidence of eye-witnesses
and cannot be an evidence sufficient to reach the conclusion for
convicting the appellant. In view of the above, we have no other
alternative but to allow this appeal and set aside the judgment and
order passed by the High Court convicting the appellant for an
offence punishable under Section 302 of the I.P.C. (Balaji Gunthu
v. State of Maharashtra; 2012 (6) Supreme 710)
Evidence Act Sec. 45 - Medical evidence
and ocular evidence - Relevancy of
The question of inconsistency
between medical evidence and ocular evidence is concerned, the law
is well settled that, unless the oral evidence available is totally
irreconcilable with the medical evidence, the oral evidence would
have primacy. In the event of contradictions between medical and
ocular evidence, the ocular testimony of a witness will have greater
evidentiary value vis-a-vis medical evidence and when medical
evidence makes the oral testimony improbable, the same becomes a
relevant factor in the process of evaluation of such evidence. It is
only when the contradiction between the two is so extreme that the
medical evidence completely rules out all possibilities of the
ocular evidence being true at all, that the ocular evidence is
liable to be disbelieved. (Darbara Singh vs. State of Punjab;
2012(6) Supreme 584)
Examination of injured person –
Examination of all witnesses not necessary
Learned
counsel further submitted that though the prosecution would claim
injuries on several persons of the complainant party, the other
persons who were stated to have been injured or were present at the
place of occurrence were not examined. In this context, it will be
relevant to refer to the decision of this Court reported in Tej
Prakash v. The State of Haryana [JT 1995 (7) SC 561] wherein this
Court held that all the witnesses of the prosecution may not be
called and it is sufficient if witnesses who were essential to the
unfolding of the narrative on which the prosecution is based must be
called by the prosecution. The legal position has been stated in
paragraph 18 as under:
“18. In support of his
contention that serious prejudice was caused to the appellant by
non-examination of Phool Singh who, had been cited by the
prosecution as one of the witness, Mr. Ganesh relied upon Stephen
Senivaratne v. The King, AIR 1936 P.C. 289, Habeeb Mohammad v. The
State of Hyderabad, 1954 (5) SCR 475 and the State of UP and another
v. Jaggo Alias Jagdish and others 1971 (2) SCC 42. The aforesaid
decisions can be of little assistance to the appellant in the
present case. What was held by the Privy Council and this Court was
that witnesses who were essential to the unfolding of the narrative
on which the prosecution is based must be called by the prosecution
whether the effect of their testimony is for or against the case for
the prosecution and that failure to examine such a witness might
affect a fair trial. It was also observed that all the witnesses of
the prosecution need not be called. In the present case, the
witnesses who were essential to the unfolding of the narrative had
been examined.”
(Emphasis added)
The law
on this aspect can be succinctly stated to the effect that in order
to prove the guilt of the accused, the prosecution should take
earnest effort to place the material evidence both oral and
documentary which satisfactorily and truthfully demonstrate and
fully support the case of the prosecution. Where there were several
persons stated to have witnessed the incident and the prosecution
examined those witnesses who were able to depose the nature of
offence committed more accurately leaving no room for doubt about
the involvement of the accused in the occurrence and the extent of
their involvement with specific overt act and also were able to with
stand the cross-examination by maintaining the sequence and the part
played as originally stated, it will be wholly irrelevant and
unnecessary to multiply the number of witnesses to repeat the same
version. (Avtar Singh vs. State of Haryana, and Kirpal Singh @
Pala & Ors vs. State of Haryana & Ors.; 2012(7) Supreme 423)
S. 32(1)—Dying Declaration—Admissibility
and evidentiary value of—Principles reiterated
In Bhajju vs. State of M.P.,
(2012) 4 SCC 327, this Court clearly stated that Section 32 of the
Evidence Act was an exception to the general rule against
admissibility of hearsay evidence. Clause (1) of Section 32 makes
the statement of the deceased admissible, which has been generally
described as dying declaration. The Court, in no uncertain terms,
held that: (SCC p.336, para 24)
“24. … It cannot be laid down as an
absolute rule of law that the dying declaration cannot from the sole
basis of conviction unless it is corroborated by other evidence.”
The dying declaration, if found reliable,
could from the basis of conviction.
In Chirra Shivraj vs. State of
A.P., (2010) 14 SCC 444, the Court expressed a caution that a
mechanical approach in relying upon the dying declaration just
because it is there, is extremely dangerous. The court has to
examine a dying declaration scrupulously with a microscopic eye to
find out whether the dying declaration is voluntary, truthful, made
in a conscious state of mind and without being influenced by other
persons and where these ingredients are satisfied, the Court
expressed the view that it cannot be said that on the sole basis of
a dying declaration, the order of conviction could not be passed.
In Laxman vs. State of
Maharashtra, (2002) 6 SCC 710, the Court while dealing with the
argument that the dying declaration must be recorded by a Magistrate
and the certificate of fitness was an essential feature, made the
following observations.
The justice theory regarding
acceptability of a dying declaration is that such declaration is
made in extremity, when the party is at the point of death and when
every hope of this world is gone, when every motive to falsehood is
silenced, and the man is induced by the most powerful consideration
to speak only the truth. Notwithstanding the same, great caution
must be exercised in considering the weight to be given to this
species of evidence on account of the existence of many
circumstances which may affect their truth. The situation is which a
man is on the deathbed is so solemn and serene, is the reason in law
to accept the veracity of his statement. It is for this reason the
requirements of oath and cross-examination are dispensed with. Since
the accused has no power of cross-examination are dispensed with.
Since the accused has no power of cross examination, the courts
insist that the dying declaration should be of such a nature as to
inspire full confidence of the court in its truthfulness and
correctness.
The “dying declaration” is the
last statement made by a person at a stage when he is in serious
apprehension of his death and expects no chances of his survival. At
such time, it is expected that a person will speak the truth and
only the truth. Normally in such situations the courts attach the
intrinsic value of truthfulness to such statement. Once such
statement has been made voluntarily, it is reliable and is not an
attempt by the deceased to cover up the truth or falsely implicate a
person, then the courts can safely rely on such dying declaration
and it can from the basis of conviction. More so, where the version
given by the deceased as dying declaration is supported and
corroborated by other prosecution evidence, there is no reason for
the courts to doubt the truthfulness of such dying declaration.
(Sudhakar vs. State of M.P.; (2012) 3 SCC (Cri) 430)
Eye-witness – Reliability of
PW 1 informed the police
about the incident in which her husband had been viciously attacked
by about 10 to 11 persons. The statement of the deceased was also
duly recorded in the presence of the medical officer in which he
named all the assailants. PW 1, wife of the deceased, and PW 2,
eyewitness had given a consistent eyewitness account. PW 1’s
statement was consistent with the version of the deceased recorded
at the hospital. The bloodstained clothes of the accused and the
sickle were recovered at the instance of the accused. The trial
court convicted the appellants. The appeal there against was
dismissed by the High Court. In his defence, the appellant contended
false implication due to enmity; that, the deceased suffered
injuries due to an accident; that the statement of PW 1 was
unreliable due to her unnatural conduct as initially she did not
name any of the accused; that the injuries were so serious that the
injured victim had not been in a position to speak, as in such
injuries a person becomes unconscious, hence the so-called dying
declaration was not reliable; and that, PW 2 was related to the
deceased.
The narration of events by
PW 1, wife of the victim was not shaken when she was subjected to a
lengthy cross-examination. The fact that she could not indicate the
precise injury caused by each of the accused is quite understandable
as her husband was attacked by a large group of people. In such a
situation, it would perhaps be humanly impossible for anyone to
indicate the precise injury caused by each one of the
appellant-accused. PW 1’s evidence need not be discarded as she did
not name each and every accused person at the first opportunity,
when she went to the police station. Her plight in such a situation
is not difficult to imagine. Lastly, the dying declaration being
consistent and clear also cannot be discarded since the doctor has
certified that the victim declarant was conscious enough to make a
statement. (Narayan Manikrao Salgar v. State of Maharashtra;
(2012) 8 SCC 622)
Investigation – Right to fair
investigation – Scope of
The parameters governing
the process of investigation of a criminal charge, the duties of the
investigating agency and the role of the courts after the process of
investigation is over and a report thereof is submitted to the
court, are exhaustively laid down in the different chapters of
Cr.P.C.. Though the power of the investigating agency is large and
expansive and the courts have a minimum role in this regard, there
are inbuilt provisions in Cr.P.C. to ensure that investigation of a
criminal offence is conducted keeping in minds the rights of an
accused to a fair process of investigation. The mandatory duty cast
on the investigating agency to maintain a case diary of every
investigation on a day-to-day basis and the power of the court under
Section 172(2) Cr.P.C. and the plenary power conferred in the High
Courts by Article 226 of the Constitution are adequate safeguards to
ensure the conduct of a fair investigation.
Though the primary duty of
a Public Prosecutor is to ensure that an accused is punished, his
duties extend to ensuring fairness in the proceedings and also to
ensure that all relevant facts and circumstances are brought to the
notice of the court for a just determination of the truth so that
due justice prevails. The courts must ensure fairness of the
investigative process so as to maintain the citizens’ rights under
Articles 19 and 21 of the Constitution and play an active role in
the trial. It is the responsibility of the investigating agency as
well as that of the courts to ensure that every investigation is
fair and does not erode the freedom of an individual except in
accordance with law. One of the established facets of a just, fair
and transparent investigation is the right of an accused to ask for
all such documents that he may be entitled to under the scheme
contemplated by Cr.P.C. (V.K. Sasikala v. State; (2012) 9 SCC
771)
Sentence—Death sentence in case of rape &
murder of minor by father—communication to specified
term—Consideration of
There is no reason to disbelieve
the above evidence and circumstances nor is there any reason to
doubt the commission of offence by the appellant and the recovery of
incriminating material on his disclosure statement. The
incriminating circumstances taken into consideration by the courts
below can reasonably be inferred. However, so far as the sentence
part is concerned, in view of the law referred to hereinabove, we
are of the considered opinion that the case does not fall within the
rarest of rare cases. However, considering the nature of offence,
age and relationship of the victim with the appellant and gravity of
injuries caused to her, the appellant cannot be awarded a lenient
punishment.
A three-Judge Bench of this
Court is Swamy Shraddananda (2) v. State of Karnataka, (2008) 13 SCC
767, considering the facts of the case, set aside the sentence of
death penalty and awarded the life imprisonment but further
explained that in order to serve the ends of justice, the appellant
therein would not be released from prison till the end of his life.
Similarly, in Ramraj vs.
State of Chhattisgarh, (2010) 1 SCC 573, this Court while setting
aside the death sentence made a direction that the appellant therein
would serve minimum period of 20 years including remissions earned
and would not be released on completion of 14 years’ imprisonment.
Thus, in the facts and circumstances of the case, we set aside the
death sentence and award life imprisonment. (Neel Kumar vs. State
of Haryana; (2012) 3 SCC (Cri) 271)
BACK TO INDEX
Employees' Provident Funds &
Miscellaneous Provisions Act
S. 1(3)(b)
and 7-A - Coverage of Act - Act made applicable to
petitioner-establishment and direction to deposit the dues -
Petitioner running a health care and gymnasium centre document
submitted by petitioner shows that they never employed more than 10
employees in establishment - Department could not prove otherwise -
Mere presence of more than 20 persons in health club cannot be
foundation to say that there were 23 employees in premises - In the
circumstances petitioner’s case ought to have been accepted - Burden
wrongly shifted in the case - Orders impugned set aside – S. 1(3)(b)
cannot be made applicable to the establishment of petitioner
The Department could not prove
otherwise. The Department never insisted and/or asked the petitioner
to produce any other document. It is not the case of the Department
that the petitioner has fabricated or even manipulated the record.
Therefore, the petitioner’s case in such circumstances ought to have
been accepted. Mere presence of more than 20 persons in the health
club cannot be the foundation to say that on that day there were 23
employees present in the premises. The presence of 20 or more
persons including the employees is not sufficient requirement. The
requirement is that there must be more than 20 employees employed in
the particular establishment.
Both the Authorities in the
present case have wrongly relied upon the report of the Enforcement
Officer by over looking the document placed on record by the
petitioner.
Therefore, taking over all view
of the matter, the burden in the present case was wrongly shifted
and as already observed the opportunity should be given to the
petitioner to prove its case by giving clear notice in accordance
with law. (Fitness point Health Care Pvt. Ltd.; Nashik (2012
(135) FLR 333) (Bom HC)
Ss. 7-A,
7-1, 7-Q and 14-B – Damages - Imposed by Commissioner -For delayed
payment of contributions - After hearing the authorised
representative of employer - No appeal filed against the order
-Approached straight this Court - Proceeding initiated by APFC not
in breach of promise - Besides no one can give an assurance that
proceedings for levying damages under section 14-B and ordering
interest U/s. 7-Q would not be initiated - Correctness of amounts
levied under section 14-B and ordered under section 7-Q not
questioned - APFC was not empowered to waive or reduce any part of
levied damages - None is empowered to waive or reduce interest
payable under section 7-Q
The subsequent proceedings had
no connection with the certificate proceedings. Hence it is wrong to
say that the APFC initiated the proceedings in breach of his
promise. Besides, no-one could give an assurance that proceedings
for levying damages under section 14-B and ordering interest under
section 7-Q would not be initiated.
They did not dispute the
correctness of the amounts mentioned in the notice. Even before the
APFC the authorized representative of the employer did not question
the correctness of the amounts levied under section 14-B and ordered
under section 7-Q.
Closure of the establishment was an irrelevant aspect.
The APFC was not empowered to waive or reduce any part of the
damages. Only the Central Board, not approached, could consider it.
No-one is empowered to waive or reduce interest payable under
section 7-Q.
(Vidula Chemicals & Manufacturing Industries Ltd. and another Vs.
Employees’ Provident Funds Commissioner and others; (2012 (135) FLR
31) (Cal HC)
BACK TO INDEX
Evidence Act
S. 3 - Appreciation of
evidence - Minor discrepancy between two witnesses as regards exact
time should be ignored on being human
The
alleged discrepancy in the prosecution evidence (PW 15 and PW 20)
with regard to the availability of the deceased Sekar for recording
of his statement at 4-4.30 p.m. of the day of occurrence, as pointed
out by the learned counsel for the appellant, in our considered
view, does not present any difficulty of resolution. The evidence on
record shows that after the two deceased persons and PW 2 and PW 3
were brought to the Government hospital an information was sent from
the police out post in the Hospital at Thanjayur to the
Necdamangalam police station which was received at about 3 p.m.
Thereafter the said information was entered in .the general diary of
the police station and placed before PW 20 who came to the hospital
and recorded the statement of deceased Sekhar at about 4.30 p.m. Oh
the other hand, PW 15, the Judicial Magistrate, who was already in
the hospital recording the dying declaration of another person, was
informed by the duty medical officer at about 3.30 p.m, to record
the dying declaration of deceased Sekhar and PWs 2 and 3.
Thereafter, according to PW 15, he went to the ward where the
injured were admitted but he was told that the patients have been
taken to the operation theatre. He, therefore, went to the operation
theatre where he found PWs 2 and 3 in the waiting room. At that time
the deceased Sekhar was inside the operation theatre undergoing
surgery. The Judicial Magistrate recorded the statements of PWs 2
and 3 and came back later to record the statement (dying
declaration) of deceased Sekhar at about 9.30 p.m. There is
certainly some amount of overlapping in the time mentioned by the
two prosecution witnesses, i.e. PWs 15 and 20. However, reference to
such time must be understood having regard to the normal course of
human life, namely, that such reference is largely by approximation
and not strictly by the hour of the clock. So viewed we do not find
any inconsistency in the above part of the prosecution case.
(Ponnusamy v. State of Tamil Nadu; 2012 (6) Supreme 699)
S. 3—Cr.P.C., Sec. 155—Defective
investigation—Duty of Court—It has to be deeply cautious and has to
ensure that determinative process is not sub-served by such defect
Where our criminal justice
system provides safeguards of fair trial and innocent till proven
guilty to an accused, there it also contemplates that a criminal
trial is meant for doing justice to all, the accused, the society
and a fair chance to prove to the prosecution. Then alone can law
and order be maintained. The Courts do not merely discharge the
function to ensure that no innocent man is punished, but also that a
guilty man does not escape. Both are public duties of the Judge.
During the course of the trial, the learned Presiding Judge is
expected to work objectively and in a correct perspective. Where the
prosecution attempts to misdirect the trial on the basis of a
perfunctory or designedly defective investigation, there the Court
is to be deeply cautious and ensure that despite such an attempt,
the determinative process is not sub-served. For truly attaining
this object of a ‘fair trial’, the Court should leave no stone
unturned to do justice and protect the interest of the society as
well. (Dayal Singh vs. State of Uttaranchal; 2012 Cr.L.J. 4323
(SC)
S. 3—Eye-witness—Relationship has no
ground to disbelieve unless his testimony carries element of
unfairness and undue intention of false implication
An eye-witness version cannot be
discarded by the Court merely on t he ground that such eye-witness
happens to be a relation or friend of the deceased. The concept of
interested witness essentially must carry with it the element of
unfairness and undue intention to falsely implicate the accused. It
is only when these elements are present, and statement of the
witness is unworthy of credence that the Court would examine the
possibility of discarding such statements. But where the presence of
the eye-witnesses is proved to be natural and their statements are
nothing but truthful disclosure of actual facts leading to the
occurrence and the occurrence itself, it will not be permissible for
the Court to discard the statements of such related or friendly
witness. (Dayal Singh vs. State of Uttaranchal; 2012 Cr.L.J. 4323
(SC)
S.3—Appreciation of evidence—Menace of
witness turning hostile—Erodes criminal judicial system
Witness turning hostile is a
major disturbing factor faced by the criminal Court in India.
Reasons are many for the witnesses turning hostile, but of late,
especially in high profile cases, there is a regularity in the
witnesses turning hostile, either due to monetary consideration or
by other tempting offers which undermine the entire criminal justice
system and people carry the impression that the mighty and powerful
can always get away from the clutches of law thereby eroding
people’s faith in the system. Courts, however, cannot shut their
eyes to the reality. If a witness becomes hostile to subvert the
judicial process, the Courts shall not stand as a mute spectator and
every effort should be made to bring home the truth. Criminal
judicial system cannot be overturned by those gullible witnesses who
act under pressure, inducement or intimidation. Further, Section 193
of the IPC imposes punishment for giving false evidence but is
seldom invoked. (State Tr. P.S. Lodhi Colony, New Delhi vs.
Sanjeev Nanda; 2012 Cr.L.J. 4174 (SC)
S. 3 - Testimony
Related eye-witness – Is not to be discarded merely on account of
relationship
Where
the presence of the eye-witnesses is proved to be natural and their
statements are nothing but truthful disclosure of actual facts
leading to the occurrence, it will not be permissible for the Court
to discard the statement of such related or friendly witnesses.
There is no bar in law on examining family members or any other
person as witnesses. In fact, in cases involving family members of
both sides, it is a member of the family or a friend who comes to
rescue the injured. If the statement of witnesses, who are relatives
or known to the parties affected is credible, reliable, trustworthy
and corroborated by other witnesses, there would hardly be any
reason for the Court to reject such evidence merely on the ground
that the witness was a family member or an interested witness or a
person known to the affected party or friend etc. (Shyam Babu v.
State of U. P.; AIR 2012 SC 3311)
S. 3- Injured
eye-witness - Testimony of stands on higher pedestal than other
witnesses
In the
case on hand, Nathu Ram (PW -1) is closely related to all the
deceased as he is the son of the deceased Pahunchi Lal and nephew of
deceased Lalta Prasad. It is also true that Prayag Singh (PW-3), the
injured witness, is the real brother of the deceased Pahunchi Lal
and Lalta Prasad. Mukut Singh (PW -6) has also admitted in his
cross-examination that he has some land in joint khata with the
victims but their testimony cannot be discarded on the ground of
relationship alone as they appeared to be honest and truthful
witnesses and their testimony has not been impaired in their
cross-examination. We have already referred to the lengthy
cross-examination of all these persons and nothing has come out to
impair their credibility. We have also observed that among these
three eye-witnesses, PW-3 is an injured witness and his evidence
stands on higher pedestal. There is no reason to either disbelieve
his version or his presence at the place of occurrence. On the other
hand, we agree with their statement and hold that the High Court was
justified on relying upon their evidence. (Shyam Babu v. State of
U. P.; AIR 2012 SC 3311)
S. 3 - Hostile witness
- Statement that supports prosecution case - Can be relied upon
It was
contended that some of the witnesses had turned hostile and have not
supported the case of the prosecution. In this regard, reference has
been made to PW13 and PW23. PW13 admitted that he was a rickshaw
puller of rickshaw No. 4. He also stated that he was not examined by
the police. It was at that stage that the learned prosecutor sought
permission of the Court to declare him hostile, which leave was
granted by the Court. This witness stated that there were 10 rikshaw
pullers at Nandan Kanan and he used to park his rikshaw from 7.00
a.m. to 10.00 a.m. at that stand, while in the afternoon, he used to
park his rikshaw at the Sodhpur Railway Station. He denied having
seen the accused persons loading the gunny bags into the Maruti Van
and also receded completely from his statement made under Section
161 of the CrPC. The other witness is PW23 who was a witness to the
recovery of the Maruti Van. According to this witness, the Maruti
Van was parked in his parking lot. However, on 30th November, 2003
Manik Das had taken out the vehicle from the parking and again
returned at mid night. With regard to his signature on the seizure
memo which he accepted as Exhibit 13, he took up the plea that he
was made to sign blank papers. The mere fact that these two
witnesses had turned hostile would not affect the case of the
prosecution adversely. Firstly, it is for the reason that the facts
that these witnesses were to prove already stand fully proved by
other prosecution witnesses and those witnesses have not turned
hostile, instead they have fully supported the case of the
prosecution. As per the version of the prosecution, PW23 was witness
to the recovery of the Maruti Van along with PW24, PW25 and PW26.
All those witnesses have proved the said recovery in accordance with
law. They have clearly stated that it was upon the statement of
Manik Das that the vehicle had been recovered. Other witnesses have
proved that the said vehicle was used for carrying the gunny bags
containing the mutilated parts of the dead body of the deceased.
Firstly, PW13 is a witness who was at the railway station rickshaw
stand along with other two witnesses namely PW9 and PW 11 who have
fully proved the fact as eye-witnesses to the loading of the gunny
bags into the Maruti van. Secondly, even the version given by PW13
and PW23 partially supports the case of the prosecution, though in
bits and pieces. For example, PW23 has stated that the driver of the
Maruti Van was Manik Das and also that he had taken out the vehicle
from the parking lot at about 9.30 p.m. on the day of the incident
and had brought it back after mid-night. He also stated that this
car was being driven by Manik Das. Similarly, PW13 also admitted
that other rickshaws were standing at the stand. This was the place
where PW9 and PW 11 had seen the loading of the gunny bags into the
Maruti Van. In other words, even the statements of witnesses PW13
and PW23, who had turned hostile, have partially supported the case
of the prosecution. It is a settled principle of law that statement
of a hostile witness can also be relied upon by the Court to the
extent it supports the case of the prosecution. Reference in this
regard can be made to the case of Govindaraju alias Govinda v. State
by Sriramapuram P.S. & Anr. [(2012) 4 SCC 722]: (AIR 2012 SC 1292)
(Shyamal Ghosh v. State of West Bengal; AIR 2012 SC 3539)
S. 3 - Penal Code (45
of 1860), S. 300 - Evidence of witnesses - Contradictions and
discrepancies - Murder case - Witnesses illiterate - Variation of 15
to 20 minutes in time of occurrence - Not material contradiction
It was
argued that there are certain discrepancies and contradictions in
the statement of the prosecution witnesses inasmuch as these
witnesses have given different timing as to when they had seen the
scuffling and strangulation of the deceased by the accused. It is
true that there is some variation in the timing given by PW8, PW17
and PW19. Similarly, there is some variation in the statement of
PW7, PW9 and PW 11. Certain variations are also pointed out in the
statements of PW2, PW4 and PW6 as to the motive of the accused for
commission of the crime. Undoubtedly, some minor discrepancies or
variations are traceable in the statements of these witnesses. But
what the Court has to see is whether these variations are material
and affect the case of the prosecution substantially. Every
variation may not be enough to adversely affect the case of the
prosecution. The variations pointed out as regards the time of
commission of the crime are quite possible in the facts of the
present case. Firstly, these witnesses are rickshaw pullers or
illiterate or not highly educated persons whose statements had been
recorded by the Police. Their statements in the Court were recorded
after more than two years from the date of the incident. It will be
unreasonable to attach motive to the witnesses or term the
variations of 15-20 minutes in the timing of a particular event, as
a material contradiction. It probably may not even be expected of
these witnesses to state these events with the relevant timing with
great exactitude, in view of the attendant circumstances and the
manner in which the incident took place. To illustrate the
irrelevancy of these so called variations or contradictions, one can
deal with the statements of PW2, PW4 and PW6, PW4 and PW6 have
stated that the deceased had constructed shops along with his
brother for the purpose of letting out and it was thereupon that the
accused persons started demanding a sum of Rs.40,OOO- from the
deceased and had threatened him of dire consequences, if their
demand was not satisfied. PW2 has made a similar statement. However,
he has stated that Uttam Das and the accused persons had threatened
the deceased that if the said money was not paid, they would not
allow the deceased to enjoy and use the said shops built by him.
This can hardly be stated to be a contradiction much less a material
contradiction. According to the witnesses, two kinds of dire
consequences were stated to follow, if the demand for payment of
money made by the accused was not satisfied. According to PW4 and
PW6, they had threatened to kill the deceased while according to
PW2, the accused had threatened that they would not permit the
accused to enjoy the said property. Statements of all these
witnesses clearly show one motive, i.e., illegal demand of money
coupled with the warning of dire consequences to the deceased in
case of default. In our view, this is not a contradiction but are
statements made bona fide with reference to the conduct of the
accused in relation to the property built by the deceased and his
brother. It is a settled principle of law that the Court should
examine the statement of a witness in its entirety and read the said
statement along with the statement of other witnesses in order to
arrive at a rational conclusion. No statement of a witness can be
read in part and/or in isolation. We are unable to see any material
or serious contradiction in the statement of these witnesses which
may give any advantage to the accused.
(Shyamal Ghosh v. State of West Bengal; AIR 2012 SC 3539)
S. 3 - Delay in
examination of witnesses alleged to be due to time spent in
arresting absconding accused - And because witnesses were poor who
had to move from place to place for earning livelihood - Delay
stands explained
The
delay in examination of witnesses is a variable factor. It would
depend upon a number of circumstances. For example, non-availability
of witnesses, the Investigating Officer being pre-occupied in
serious matters, the Investigating Officer spending his time in
arresting the accused who are absconding, being occupied in other
spheres of investigation of the same case which may require his
attention urgently and importantly, etc. In the present case, it has
come in evidence that the accused persons were absconding and the.
Investigating Officer had to make serious effort and even go to
various places for arresting the accused, including coming from
West-Bengal to Delhi. The Investigating Officer has specifically
stated, that too voluntarily, that he had attempted raiding the
houses of the accused even after cornering the area, but of no
avail. He had ensured that the mutilated body parts of the deceased
reached the hospital and also affected recovery of various items at
the behest of the arrested accused. Furthermore, the witnesses whose
statements were recorded themselves belonged to the poor strata, who
must be moving from one place to another to earn their livelihood.
The statement of the available witnesses like PW21 PW4, PW6, and the
doctor, PW16, another material witness, had been recorded at the
earliest. The Investigating Officer recorded the statements of
nearly 28 witnesses. Some delay was bound to occur in recording the
statements of the witnesses whose names came to light after certain
investigation had been carried out by the Investigating Officer. In
the present case, the examination of the interested witnesses was
inevitable. They were the persons who had; knowledge of the threat
that was being extended to the deceased by the accused persons,
unless their statements were recorded, the investigating officer
could not have-proceeded with the investigation any further
particularly keeping the facts of the present case in mind. Merely
because three witnesses were related to the deceased, the other
witnesses, not similarly placed, would not, attract any suspicion of
the court on the credibility and worthiness of their statements.
(Shyamal Ghosh v. State of West Bengal; AIR 2012 SC 3539)
S. 24
It is
improper to say that the right to be represented by a lawyer and the
right against self-incrimination would remain incomplete and
unsatisfied unless those rights are read out to the accused. The
obligation to provide legal aid to the accused as soon as he is
brought before the Magistrate is very much part of our criminal law
procedure, aimed at protecting the accused against
self-incrimination. But to say that any failure to provide legal aid
to the accused at the beginning, or before his confession is
recorded under Section 163, Cr. P. C., would inevitably render the
trial illegal is stretching the point to unacceptable extremes. The
object of the criminal law process is to find out the truth and not
to shield the accused from the consequences of his wrongdoing. A
defence lawyer has to conduct the trial on the basis of the
materials lawfully collected in the course of investigation. The
test to judge the constitutional and legal acceptability of a
confession recorded under Section 164, Cr. P. C. is not whether the
accused would have made the statement had he been sufficiently
scared by the lawyer regarding the consequences of the confession.
The true test is whether or not the confession is voluntary. If a
doubt is created regarding the voluntariness of the confession,
notwithstanding the safeguards stipulated in S. 164 it has to be
trashed; but if a confession is established as voluntary it must be
taken into account, not only constitutionally and legally but also
morally.
Every
accused unrepresented by a lawyer has to be provided a lawyer at the
commencement of the trial, engaged to represent him during the
entire course of the trial. Even if the accused does not ask of a
lawyer or he remains silent, it is the Constitutional duty of the
Court to provide him with a lawyer before commencing the trial.
Unless the accused voluntarily makes an informed decision and tells
the Court, in clear and unambiguous words, that he does not want the
assistance of any lawyer and would rather defend himself personally,
the obligation to provide him with a lawyer at the commencement of
the trial is absolute, and failure to do so would vitiate the trial
and the resultant conviction and sentence, if any, given to the
accused. But the failure to provide a lawyer to the accused at the
pre-trial stage may not have the same consequence of vitiating the
trial. It may have other consequences like making the
delinquent magistrate liable to disciplinary proceedings, or giving
the accused a right to claim compensation against the State for
failing ·to provide him legal aid. But it would not vitiate the
trial unless it is shown that failure to provide legal assistance at
the pre-trial. That would have to be judged on the facts of each
case. (Mohammed Ajmal Mohammad Amir Kasab v. State of
Maharashtra; AIR 2012 SC 3565)
S. 24—Extra-judicial confession—
Reliability of
In this case, Hon’ble Court
has observed that it can be relied upon when it is true, voluntary
and made in fit state of mind. (Suresh Vadnur vs. State of Goa;
2012 Cr.L.J. (NOC) 484 (Bom)
S. 32—Dying declaration—Court attached
intrinsic value of truthfulness to such statement—If made
voluntarily can form basis of conviction
The ‘dying declaration’
is the last statement made by a person at a stage when he in serious
apprehension of his death and expects no chances of his survival. At
such time, it is expected that a person will speak the truth and
only the truth. Normally in such situations the courts attach the
intrinsic value of truthfulness to such statement. Once such
statement has been made voluntarily, it is reliable and is not an
attempt by the deceased to cover up the truth or falsely implicate a
person, then the courts can safely rely on such dying declaration
and it can form the basis of conviction. Moreso, where the version
given by the deceased as dying declaration is supported and
corroborated by other prosecution evidence, there is no reason for
the courts to doubt the truthfulness of such dying declaration.
(Sudhakar vs. State of M.P.; 2012 Cr.L.J. 3985 (SC)
S. 32—Multiple contradictory dying
declarations—Which to be relied?
In cases involving multiple
dying declarations made by the deceased, for determining which of
the various dying declarations should be believed by the Court, the
test of common prudence would be to first examine which of the dying
declarations is corroborated by other prosecution evidence. Further,
the attendant circumstances, the condition of the deceased at the
relevant time, the medical evidence, the voluntariness and
genuineness of the statement made by the deceased, physical and
mental fitness of the deceased and possibility of the deceased being
tutored are some of the factors which would guide the exercise of
judicial discretion by the Court in such matters. Each dying
declaration has to be considered independently on its own merit so
as to appreciate its evidentiary value and one cannot be rejected
because of the contents of the other. In case where there is more
than one dying declaration, it is the duty of the Court to consider
each one of them in its correct perspective and satisfy itself which
one of them reflects the true state of affairs. (Sudhakar vs.
State of M.P.; 2012 Cr.L.J. 3985 (SC)
S. 32(1) – Dying declaration – Dying
declaration recorded by PSI – Reliability of
In the present case, Doctor
examined patient and permitted PSI to record statement of injured –
Doctor categorically stated that statement of injured victim was
recorded by PSI in his presence and after the statement was
recorded, also certified that patient was conscious enough to make
statement. So, there is no reason to discard dying declaration.
Hence, conviction confirmed. (Narayan Manikrao Salgar v. State of
Maharashtra; (2012) 8 SCC 622)
S. 45—Expert Evidence—Reliability—Courts
look upon expert evidence with greater sense of acceptability but
are not absolutely guided by such evidence
The Courts, normally, look at
expert evidence with a greater sense of acceptability, but it is
equally true that the Courts are not absolutely guided by the report
of the experts, especially if such reports are perfunctory,
unsustainable and are the result of a deliberate attempt to
misdirect the prosecution. Where the eye-witness account is found
credible and trustworthy, medical opinion pointing to alternative
possibilities may not be accepted as conclusive. The expert witness
is expected to put before the Court all materials inclusive of the
date which induced him to come to the conclusion and enlighten the
Court on the technical aspect of the case by examining the terms of
science, so that the Court, although not an expert, may form its own
judgment on those materials after giving due regard to the expert’s
opinion, because once the expert opinion is accepted, it is not the
opinion of the medical officer but that of the Court. The skill and
experience of an expert is the ethos of his opinion, which itself
should be reasoned and convincing. Not to say that no other view
would be possible, but if the view of the expert has to find due
weightage in the mind of the Court, it has to be well authored and
convincing.
The assistance and value of
expert opinion is indisputable, but there can be reports which are,
ex facie, incorrect or deliberately so distorted as to render the
entire prosecution case unbelievable. But if eye-witnesses and other
prosecution evidence are trustworthy, have credence and are
consistent with the eye version given by the eye-witnesses and other
prosecution evidence are trustworthy, have credence and are
consistent with the eye version given by the eye-witnesses, the
Court will be within its jurisdiction to discard the expert opinion.
An expert report, duly proved, has its evidentiary value but such
appreciation has to be within the limitations prescribed and with
careful examination by the Court. A complete contradiction or
inconsistency between the medical evidence and the ocular evidence
on the one hand and the statement of the prosecution witnesses
between themselves on the other, may result in seriously denting the
case of the prosecution in its entirety but no otherwise. (Dayal
Singh vs. State of Uttaranchal; 2012 Cr.L.J. 4323 (SC)
S. 45—Expert evidence—Breach of
professional duties—Directions issued for courts
Supreme Court directed Courts to
record specific finding against Investigating Officers indulging in
deliberate dereliction of duty and conducting of designedly
defective investigation and direct disciplinary action them. Similar
course directed to be adopted against expert witnesses indulging in
acts of omission or commission in breach of professional duties and
even against prosecution witnesses. (Dayal Singh vs. State of
Uttaranchal; 2012 Cr.L.J. 4323 (SC)
S. 145 – Evidence – FIR – Appreciation of
– Once police submitted charge-sheet U/s. 304 – Attain argument by
placing reliance on FIR is not sustainable
There appears to be no doubt
that originally, the first information report was lodged under
section 302 read with section 392, Indian Penal Code. However, later
on, the police submitted charge-sheet under section 304-A, Indian
Penal Code in the case Crime No. 361 of 1995. It is settled law that
contents of F.I.R. are not substantive evidence but only
corroborative evidence and may be used during trial. Once the police
submitted charge-sheet under section 304-A, Indian Penal Code
(accidental death), then argument by placing reliance on the F.I.R.
seems to be not sustainable. Tribunal has rightly held that F.I.R.
is not substantive evidence and when the police submitted
charge-sheet under section 304-A, Indian Penal Code, then the F.I.R.
loses its sanctity with regard to its contents except to use it for
the purpose of contradiction under section 145 of the Evidence Act.
(New India Assurance Co. Ltd. Vs. Ranni and others; 2012 ACJ
2624)
S. 165—Recording of voice—Following
closure of evidence—Legality
The simple prayer by way of
filing the objection by the defence side is that in case of
non-recording of voice of the prosecutrix, the impugned C.D. be
accepted as defence evidence, the same cannot be allowed to be done
by the trial Court. There are certain rules which are required for
proving any document prepared by Electronic Media and certain rules
are provided there for the accused persons who will have to prove
the impugned C.D. as observed and then only the trial Court at the
stage of the judgment may draw its own conclusion as the facts and
circumstances of the case warrant.
In this case, according to the
learned counsel for the parties, the impugned C.D. contains the
conversation allegedly held between the prosecutrix and the accused
which has been prepared from some mobile set.
So far as contention of the
learned counsel for the revisionist regarding adverse inference
against the prosecutrix in case of failure of recording of her voice
due to her unwillingness is concerned, it is again open for
consideration of the trial Court after hearing the arguments at the
stage of the judgment. The prosecution evidence has already been
closed and the case is at the stage of defence evidence, the
impugned order is illegal and not sustainable in law as the same is
beyond the provisions of the Code of Criminal Procedure, 1872. (Smt.
Rukumani Devi vs. State of U.P.; 2012 (5) ALJ 488)
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Forest Act
S. 3 (as applicable in State of
U.P.)—Ambit & Scope—Forest/waste land—Power of State Govt. to
declare forest/waste land as reserve forest—Is absolute
The State Government has been
granted power to constitute a reserved forest in respect of three
categories of land, if it is the property of the State Government or
the Government has proprietary rights over it, (a) forest land (b)
waste land and (c) any other land (not being land for the time being
comprised in any holding or in any village abadi). Right of the
State Government to constitute reserved forest in respect of forest
and waste land is not circumscribed by the exclusion clause as
applicable to other lands i.e. not being land for the time being
comprised in any holding or in any village Abadi.
In respect of forest land and
waste land, which is the property of the State Government or other
which it has proprietary rights, the power of the State to
constitute a reserved forest is absolute. In respect of forest and
waste land only two facts are to be satisfied for constituting a
reserved forest i.e. (a) the land is forest or waste land and (b) it
is the property of the State or the State has proprietary right over
the same.
In respect of instant
forest/waste land, one ‘V’ was merely a Sirdar and subsequently with
the grant of sanad, a bhumidhar in respect of land, which has been
found to be forest and waste land of which the State Government, was
the proprietor in view of application of Act of 1950 to the area. He
or for that purpose the society cannot contend that the State
Government has no power to declare the forest land and waste land as
reserved forest under Section 4 of Act, 1927. Bhumidhari rights are
subordinate to the proprietary rights of the State Government. In
view of provisions of Section 3 of Act, 1927, the power of the State
Government to declare the forest and waste lands of which it has the
proprietary as reserved forest is not diluted in any manner, merely
because ‘V’ is held to be the Sirdar and thereafter bhumidhar.
(State of U.P. vs. IV Additional District Judge, Mirzapur; 2012 (5)
ALJ 659)
Ss. 3, 4—Power of State Govt. to declare
reserve forest—Is not lost because of ceiling proceedings
Ceiling limits are determined
with regard to the land held by a recorded tenure-holder. Such
determination of the ceiling limits does not divest the State Govt.
of proprietary rights over the land, which is forest land and waste
land nor its power to constitute the forest land and waste land as
reserved forest is lost because of such ceiling proceedings. Both
acts operate in different field. Whatever may have been the decision
in the proceedings under Act, 1960, the exercise of powers under
Section 4 of Act, 1927 by the State will not be diluted or adversely
affected. (State of U.P. vs. IV Additional District Judge,
Mirzapur; 2012 (5) ALJ 659)
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Hindu Marriage Act
Ss. 13(1)(1-a)—Cruelty and mental
cruelty—Meaning and proof of
The expression “cruelty” has an
inseparable nexus with human conduct or human behavior. It is always
dependent upon the social strata or the milieu to which the parties
belong, their ways of life, relationship, temperaments and emotions
that have been conditioned by their social status.
In Parveen Mehta vs. Inderjit
Mehta, (2002) 5 SCC 706, it has been held that mental cruelty is a
state of mind and feeling with one of the spouses due to behavior or
behavioural patter by the other. Mental cruelty cannot be
established by direct evidence and it is necessarily a matter of
inference to be drawn from the facts and circumstances of the case.
“A feeling of anguish, disappointment and frustration in one spouse
caused by the conduct of the other can only be appreciated on
assessing the attending facts and circumstances in which the two
partners of matrimonial life have been living.” The facts and
circumstances are to be assessed emerging from the evidence on
record and thereafter, a fair inference has to be drawn whether the
petitioner in the divorce petition has been subjected to mental
cruelty due to the conduct of the other. (Vishwanath Agarwal vs.
Sarla Vishwanath Agarwal; (2012) 3 SCC (Cri) 347)
Ss. 25—Permanent Alimony—Grant of—Factors
to be considered
Permanent alimony is to be
granted taking into consideration the social status, the conduct of
the parties, the way of living of the spouse and such other
ancillary aspects. During the course of hearing of the matter, we
have heard the learned counsel for the parties on this aspect. After
taking instructions from the respective parties, they have addressed
us. The learned Senior Counsel for the appellant has submitted that
21.2.2012, an amount of Rs. 17,60,000 has been paid towards
maintenance to the wife as directed by the courts below and hence,
that should be deducted from the amount to be fixed. He has further
submitted that the permanent alimony should be fixed at Rs. 25 lakhs.
The learned counsel for the respondent, while insisting for
affirmance of the decisions of the High Court as well as by the
courts below, has submitted that the amount that has already been
paid should not be taken into consideration as the same has been
paid within a span of number of years and the deduction would affect
the future sustenance. He has emphasized on the income of the
husband, the progress in the business, the inflation in the cost of
living and the way of life the respondent is expected to lead. He
has also canvassed that the age factor and the medical aid and
assistance that are likely to be needed should be considered and the
permanent alimony should be fixed at Rs. 75 lakhs.
Court has considered opinion
that the amount that has already been paid to the respondent wife
towards alimony is to be ignored as the same had been paid by virtue
of the interim orders passed by the courts. It is not expected that
the respondent wife has sustained herself without spending the said
money. Keeping in view the totality of the circumstances and the
social strata from which the parties come from and regard being had
to the business prospects of the appellant, permanent alimony of Rs.
50 lakhs (rupees fifty lakhs only) should be fixed and, accordingly,
we so do. The said amount of Rs. 50 lakhs shall be deposited by way
of bank draft before the trial court within the period of four
months and the same shall be handed over to the respondent wife on
proper identification. (Vishwanath Agrawal vs. Sarla Vishwanath
Agrawal; (2012) 3 SCC (Cri) 347)
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Hindu
Minority and Guardianship Act
Ss. 6 & 13 - Minor Children, custody of -
Held, it is the welfare and interest of child and not the rights of
the parents which is the determining factor for deciding the
question of custody
In the present case irrespective
of the question whether the abandonment of visitation rights by the
wife was occasioned by the fraud or deceit practiced on her, as
subsequently claimed, an attempt was made by this Court, even by
means of a personal interaction with the children, to bring the
issue with regard to custody and visitation rights to a satisfactory
conclusion. From the materials on record, it is possible to conclude
that the children, one of whom is on the verge of attaining
majority, do conclude that the children, one of whom is on the verge
of attaining majority, do not want to go with their mother,. Both
appear to be happy in the company of their father who also appears
to be in a position to look after them; provide them with adequate
educational facilities and also to maintain them in a proper and
congenial manner. The children having expressed their reluctance to
go with the mother, even for a short duration of time, we are left
with no option but to hold that any visitation right to the mother
would be adverse to the interest of the children. Besides, in view
of the reluctance of the children to even meet their mother, leave
alone spending time with her, we do not see how such an arrangement,
i.e., visitation can be made possible by an order of the court.
Taking into account all the
aforesaid facts, we dismiss these appeals, affirm the impugned
orders passed by the High Court of Delhi and deny any visitation
rights to the petitioner and further direct that the children would
continue to remain in the custody of their father until they attain
the age of majority. (Gaytri Bajaj Vs. Jiten Bhalla; (2012 (30)
LCD 2244) (SC)
S. 8(4) – Sale of
property of minor - Permission for
In view of sub-section (4) of Section 8 of the Act (1956) it was
incumbent upon the trial Court to find out and make enquiry in depth
how the sell of the land standing in the name of the minor is going
to be benefited or advantageous to the child in future. The very
fact that the land standing in the name of the minor was purchased
at Rs. 4.00 lacs and its approximate price was shown in the
application as Rs. 2.00 lacs is indicative of the fact that the
applicant has not approached the Court with clean hands. That apart
a formal declaration was sought by the applicant in the said
application to declare him as natural guardian. Therefore, it
follows from the said prayer that application filed by him for sell
of the land standing in the name of minor was premature. (Ku.
Kamna Satyanarayan Handibag v. Satyanarayan Chatrabhij Handibagh &
Anr.; AIR 2012 Bom 163)
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House &
Rent
Landlord choice about shop -
Consideration of - Same has to be honoured with landlord being his
privilege having priority over tenant’s suggestion
So far as the question of
choice about shop is concerned, obviously the same has to be
honoured with landlord being his privilege having priority over
tenant’s suggestion. (Mohamad Islam vs. Additional District
Judge, Jhansi; 2012(3) ARC 517 (All HC)
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Indian Penal Code
S. 34 – Common intention is pre-requisite
- S. 34 cannot be invoked in absence of common intention
Court has already referred
to the evidence of prosecution witnesses. Nobody has implicated the
present appellant except the statements made by PW-5 and PW-7 (the
approver). Court are satisfied that absolutely there is not material
from the side of the prosecution to show that the present appellant
had any common intention to eliminate the deceased, who was
physically disabled. The only adverse thing against the present
appellant is that he used to associate with A-1 for smoking Ganja.
In the absence of common intention, court is of the view that
convicting the appellant with the aid of Section 34 IPC cannot be
sustained. (Suresh Sakharam Nangare v. State of Maharashtra; 2012
Supreme 134)
S. 63—Cr.P.C., Sections 357(3),
421—Object of—Order to pay compensation to victim in case of
default, court can award sentence to ensure its observance
The idea behind directing the
accused to pay compensation to the complainant is to give him
immediate relief so as to alleviate his grievance. In terms of
Section 357(3) of Criminal P.C. compensation is awarded for the loss
or injury suffered by the person due to the act of the accused for
which he is sentenced. If merely an order, directing compensation,
is passed, it would be totally ineffective. It could be an order
without any deterrence or apprehension of immediate adverse
consequences in case of its non-observance. The whole purpose of
giving relief to the complainant u/s. 357(3) of Code would be
frustrated if he is driven to take recourse to S. 421 of the Code.
Order u/s. 357(3) must have potentiality to secure its observance.
Deterrence can only be infused into the order by providing for a
default sentence. If Section 421 of the Code puts compensation
ordered to be paid by the Court on par with fine so far as mode of
recovery is concerned, then there is no reason why the Court cannot
impose a sentence in default of payment of compensation as it can be
done in case of default in payment of fine u/s. 64 of the IPC.
(R. Mohan vs. A.K. Vijaya Kumar; 2012 Cr.L.J. 3953 (SC)
Ss. 107, 306—Abetment by instigation for
act to constitute instigation—It must be with intention—Words
uttered in anger without any intention do not constitute instigation
The offence of abetment by
instigation depends upon the intention of the person who abets and
not upon the act which is done by the person who has abetted. The
abetment may be by instigation, conspiracy or intentional aid as
provided u/s. 107, IPC. However, the words uttered in a fit of anger
or omission without any intention cannot be termed as instigations.
Instigation has to be gathered from the circumstances of a
particular case. No straight-jacket formula can be laid down to find
out as to whether in a particular case there has been instigation
which force the person to commit suicide. In a particular case,
there may not be direct evidence in regard to instigation which may
have direct nexus to suicide. Therefore, in such a case, an
inference has to be drawn from the circumstances and it is to be
determined whether circumstances has been such which in fact had
created the situation that a person felt totally frustrated and
committed suicide. (Praveen Pradhan vs. State of Uttaranchal and
Anr.; 2012 Cr.L.J. 4925 (SC)
Ss. 121, 121A - Waging
of war - What amounts to - Terrorist act - Need not always amount to
offence of waging war
In
"waging war", the intent of the foreign enemy is not only to disturb
public peace or law and order or to kill many people. A foreign
enemy strikes at the sovereignty of the State, and his conspiracy
and actions are motivated by that animus a "terrorist act" and an
act of "waging war against the Government of India" may have some
overlapping features, but a terrorist act may not always be an act
of waging war against the Government of India, and vice versa as
such it cannot be said that if an offence comes within the
definition of "terrorist act" under Section 15 of the Unlawful
Activities (Prevention) Act, it would automatically fall out of
Section 121 of the Penal Code. (Mohammed Ajmal Mohammad
Amir Kasab v. State of Maharashtra; AIR 2012 SC 3565)
S. 149—Unlawful assembly—Every member of
assembly is vicariously liable—Whether any member has caused injury
or not—Not relevant
Section 149 IPC creates a
constructive or vicarious liability of the members of unlawful
assembly for the unlawful acts committed pursuant to the common
object by any other member of that assembly. This principle ropes in
every member of the assembly to be guilty of an offence where the
offence is committed by any member of that assembly in prosecution
of common object of that assembly, or such members or assembly knew
that offence is likely to be committed in prosecution of that
object. The factum of causing injury or not causing injury would not
be relevant, where accused is sought to be roped in with the aid of
Section 149, IPC. It is now well settled law that the provisions of
Sec. 149, IPC will be attracted whenever any offence committed by
any member of an unlawful assembly in prosecution of the common
object of that assembly, or when the members of that assembly knew
that offence is likely to be committed in prosecution of that
object, so that every person, who, at the time of committing of that
offence is a member, will be also vicariously held liable and guilty
of that offence. Section 149 IPC creates a constructive or vicarious
liability of the members of the unlawful assembly for the unlawful
acts committed pursuant to the common object by any other member of
that assembly. This principle ropes in every member of the assembly
to be guilty of an offence where that offence is committed by any
member of that assembly in prosecution of common object of that
assembly, or such members or assembly knew that offence is likely to
be committed in prosecution of that object. The factum of causing
injury or not causing injury would not be relevant, where accused is
sought to be roped in with the aid of Section 149 IPC. The relevant
question to be examined by the court is whether the accused was a
member of an unlawful assembly and not whether he actually took
active part in the crime or not.
In our opinion, the prosecution
has clearly established with ample evidence that accused-A13 and A14
had murdered the deceased. We are in agreement with the view taken
by the Trial Court and High Court. Therefore, the High Court is
right in dismissing the appeal against the order of conviction
passed by the learned Sessions Judge.
We are also of the opinion that
accused- A1, A15, A16 and A21 were members of the same assembly
which has caused the murder of the deceased, in terms of Section 149
IPC, as they had dragged the deceased after first assault and
contributed in preventing the deceased from escaping the assault of
A13 and A14. Therefore, accused - A1, A15, A16 and A21 are guilty of
murder along with A13 and A14 u/s. 302 read with Section 149 IPC.
(Krishnappa vs. State of Karnataka; 2012 Cr.L.J. 4347 (SC)
S. 302 r/w section 25, Arms Act, 1959 –
Conviction and sentence based on reliable evidence pointing to guilt
of appellant beyond doubt
Court have perused the
judgment and order passed by the High court as also the Trial Court.
Court are convinced that the reasoning and the conclusion reached by
both the Trial court and the High Court does not suffer from any
legal infirmity and therefore, the interference with the impugned
judgment is not called for. (Pappu @ Ram Narayan v. State of
Uttar Pradesh; 2012 (7) Supreme 320)
Ss. 304-A and 299—Death by negligent act
and culpable homicide—Difference
Section 299 of the IPC defines
culpable homicide as an act of causing death (i) with the intention
of causing death; (ii) with the intention of causing some bodily
injury as is likely to cause death; and (iii) with the knowledge
that such act is likely to cause death. The first and second clauses
of the section refer to intention apart from knowledge and the third
clause refers to knowledge apart from intention. “Intention” and
“knowledge” postulate the xistence of positive mental attitude. The
expression ‘knowledge’ referred to in Section 299 and Section 300 is
the personal knowledge of the person who does the act. To make out
an offence punishable under Section 304 (II) of the IPC, the
prosecution has to prove the death of the person in question and
such death was caused by the act of the accused and that he knew
such act of his is likely to cause death. Section 304-A carves out a
specific offence where death is caused by doing a rash or negligent
act and that act does not amount to culpable homicide not amounting
to murder under Section 299 or murder under Section 300. The
following requirements must be satisfied before applying S. 304-A.
The following requirements must be satisfied before applying S.
304-A/
(i)
Death must have been caused by the accused;
(ii)
Death caused by rash or negligent act;
(iii)
Rash and negligent act must not amount to culpable homicide.
(State Tr. P.S. Lodhi Colony, New Delhi
vs. Sanjeev Nanda; 2012 Cr.L.J. 4174 (SC)
S. 304-A—Causing death by rash and
negligent driving—Proof
The submission that PW5 has
stated the bus being driven at the slow speed was dealt with by the
ASJ.
The scooterist was moving on a
straight road and was hit from behind by right of the bus making it
fall would show that the bus was not being driven with due care and
caution, but was being driven recklessly and negligently. It was
being driven in a wanton fashion without any regard to the safety of
the people travelling in front of it. Though, there may not be the
intention of the petitioner to cause an accident, but the way a
heavy vehicle was being driven on the busy road was itself
indicative of his negligence and indifference to the consequence.
From all this discussion, the irresistible conclusion comes out to
be that offending vehicle was being driven by the petitioner in a
rash and negligent manner so as to danger the human life.
Keeping in view the facts and
circumstances of the case and the above pronouncements, I am of the
view that the trial court and the Appellate Court have rightly
sentenced the petitioner or imprisonment and their Orders require no
interference. (Meghna Singh vs. State; 2012 Cr.L.J. 4930 (Del)
S. 304 –A – Death due
to rash and negligent driving – Sentence – Demand of imposition of
adequate sentence - Award of compensation under Motor Vehicles Act
or under Section 357 of CrPC - Cannot be substitute for sentence in
all cases
The
concern of the Courts in motor accident cases has been to impose
adequate sentence for the offence punishable under S. 304-A of the
IPC. It is worthy to note that in certain circumstances, the
mitigating factors have been taken into consideration but the said
aspect is dependent on the .facts of each case. As the trend of
authorities would show, the proficiency in professional driving is
emphasized upon and deviation there from that result in rash and
negligent driving and causes accident has been condemned. In a motor
accident, when a number of people sustain injuries and a death
occurs, it creates a stir in the society; sense of fear prevails all
around. The negligence of one shatters the tranquillity of the
collective. When such an accident occurs, it has the potentiality of
making victims in many a layer and creating a concavity in the
social fabric. The agony and anguish of the affected persons, both
direct and vicarious, can have nightmarish effect. It has its impact
on the society and the impact is felt more when accidents take place
quite often because of rash driving by drunken, negligent or, for
that matter, adventurous drivers who have, in a way, no concern for
others. Grant of compensation under the provisions of the Motor
Vehicles Act, 1988 is in a different sphere altogether. Grant of
compensation under Section 357(3) with a direction that the same
should be paid to the person who has suffered any loss or injury by
reason of the act for which the accused has been sentenced has a
different contour and the same is not to be regarded as a substitute
in all circumstances for adequate sentence.
An
appropriate punishment works as an eye-opener for the persons who
are not careful while driving vehicles on the road and exhibit a
careless attitude possibly harbouring the notion that they would be
shown indulgence or lives of others are like "flies to the wanton
boys." They totally forget that the lives of many are in their
hands, and the sublimity of safety of a human being is given an
indecent burial by their rash and negligent. (Guru
Basavaraj v. State of Karnataka; 2012 AIR SCW 4822)
Ss. 304-A and 279 – Adequacy of sentence
in motor accident arising out of rash and negligence driving – Need
for
In State of Karnataka v.
Krishna; (1987) 1 SCC 538 : 1987 SCC (Cri) 198, while dealing with
the concept of adequate punishment in relation to an offence under
Section 304-A IPC, the Court stated that:
“7......Considerations of undue sympathy in
such cases will not only lead to miscarriage of justice but will
also undermine the confidence of the public in the efficacy of the
criminal [justice dispensation] system. It need be hardly pointed
out that the imposition of a sentence of fine of Rs. 250 on the
driver of a motor vehicle for an offence under Section 304-A IPC and
that too without any extenuating or mitigating circumstance is bound
to shock the conscience of anyone and will unmistakably leave the
impression that the trial was a mockery of justice.”
From the aforesaid
authorities, it is luminous that the Court has expressed its concern
on imposition of adequate sentence in respect of commission of
offences regard being had to the nature of the offence and demand of
the conscience of the society. That apart, the concern has been to
impose adequate sentence, for the offence punishable under Section
304A IPC. It is worthy to note that in certain circumstances, the
mitigating factors have been taken into consideration but the said
aspect is dependent on the facts of each case. As the trend of
authorities would show, the proficiency in professional driving is
emphasised upon and deviation there from that results in rash and
negligent driving and causes accident has been condemned. In a motor
accident, when a number of people sustain injuries and a death
occurs, it creates a stir in the society; sense of fear prevails all
around. The negligence of one shatters the tranquillity of the
collective. When such an accident occurs, it has the effect
potentiality of making victims in many a layer and creating a
concavity in the social fabric. The agony and anguish of the
affected persons, both direct and vicarious, can have nightmarish
effect. It has its impact on the society and the impact is felt more
when accidents take place quite often because of rash driving by
drunken, negligent or, for that matter, adventurous drivers who
have, in a way, no concern for others. Be it noted, grant of
compensation under the provisions of the Motor Vehicles Act, 1988 is
in a different sphere altogether. Grant of compensation under
Section 357(3) Cr.P.C. with a direction that the same should be paid
to the person who has suffered any loss or injury by reason of the
act for which the accused has been sentenced has a different contour
and the same is not to be regarded as a substitute in all
circumstances for adequate sentence. (Guru Basavaraj alias Benne
Settappa v. State of Karnataka; (2012) 8 SCC 734)
S. 304-A – Rash and
negligent driving – Sentence - Country registering maximum number
deaths in road accidents - Thus law makers should revisit sentencing
policy reflected in S. 304A
World
Health Organization in the Global status Report on Road Safety has
pointed out that speeding and drunk driving are the major
contributing factors in road accidents. According to National Crime
Records Bureau (NCRB), the total number of deaths due to road
accidents in India every year is now over 1,35,000 NCRB Report also
states drunken driving as a major factor for road accidents. Our
country has a dubious distinction of registering maximum number of
deaths in road accidents. It is high time that law makers revisit
the sentencing policy reflected in S. 304A IPC. (Alister Anthony
Pareira v. State of Maharashtra; AIR 2012 SC 3802)
S. 304-B – Dowry –
Death - Proof
Deceased Suman was married to accused- respondent, Raghvendra Tiwari
and disputably she was at her matrimonial house on 23-12-2007 then
she was found having burnt herself after pouring kerosene oil inside
the room. This appears narrated by the Naib Tehsildar, PW-4 who
scaled the wall of the house and went inside the room to retrieve
the dead body. He found the doors of the house bolted form inside.
The allegation was that after about two years of the marriage, Suman
was complained to there parents and other family members that the
accused persons were pestering her for an Alto car as dowry. The
learned trial Judge has analysed and discussed the evidence of the
two witnesses and affect thereof in para 29 of the judgment and we
find from that the letters of anything out of the call details which
point out that Suman had really complained about ill –treatment or
torture on account of demand of dowry.
Likewise, we find that there is no evidence indicating that she was
ill-treated or tortured for demand of any dowry prior to her death.
Thus we find that the most important ingredients of offence under
section 304-B were not established on facts of the case defence
suggestion that in fact Suman was in love with Pankaj, but the lady
was married to Raghvendra Tiwari and it was found from one
particular document that he had forbidden her husband from touching
her also. We have referred to the evidence of Naib Tehsildar, PW- 4
and that evidence has been discussed in detail in paragraph 37 of
the judgment and this is a clear pointer as to how the deceased had
killed herself on being married to a person whom she did not like.
(State of U.P. v. Raghvendra Tiwari; 2012 (6) ALJ 364)
Ss. 306 & 107 – Abatement of suicide –
Factors to be considered
A plain and simple
reading of the suicide note makes it crystal clear that the
appellant had not just humiliated and insulted the deceased on one
occasion. In fact, it is evidence that the appellant perpetually
humiliated, exploited and demoralised the deceased, which hurt his
self-respect tremendously. The words used are, to the effect that
the appellant always hurts the self-respect of the deceased and he
was always scolding him. The appellant always made attempts to force
him to resign. The statements recorded by the police under Section
161 Cr.P.C., particularly, one made by KS, widow of the deceased and
also those of various other family members, corroborate the version
of events, as given in his suicide note. The offence of abetment by
instigation depends upon the intention of the person who abets and
not upon the act which is done by the person who has abetted. The
abetment may be by instigation, conspiracy or intentional aid as
provided under Section 107 IPC. However, the words uttered in a fit
of anger or omission without any intention cannot be termed as
instigation.
The instigation has to be
gathered from the circumstances of a particular case. No
straitjacket formula can be laid down to find out as to whether in a
particular case there has been instigation which forced the person
to commit suicide. In a particular case, there may not be direct
evidence in regard to instigation which may have direct nexus to
suicide. Therefore, in such a case, an inference has to be drawn
from the circumstances and it is to be determined whether
circumstances had been such which in fact had created the situation
that a person felt totally frustrated and committed suicide.
(Praveen Pradhan v. State of Uttaranchal and another; (2012) 9 SCC
734)
S. 337 – Causing hurt
- Rush and negligent driving – Victims suffered simple hurt,
received various injuries - Conviction of accused for offence
punishable under S. 337 – Not interference
In as
charge under Section 337 IPC is concerned, it is amply established
form the prosecution evidence that PW-5, PW-7, PW-9 and PW-10
received various injuries; they suffered simple hurt. The trial
court as well as the High Court was justified in conviction the
Appellant for the offence punishable under Section 337 IPC as well.
(Alister Anthony Pareira v. State of Maharashtra; AIR 2012 SC
3802)
S. 354 - IPC, S. 53—Penology—Sentencing
policy—Sentence has to be proportional to gravity of offence and
must afford sufficient deterrence and protect public from crimes
Generally, the policy which
the Court adopts while awarding sentence is that the punishment must
be appropriate and proportional to the gravity of the offence
committed law demands that the offender should be adequately
punished for the crime, so that it can deter the offender and other
persons from committing similar offences. Nature and circumstances
of the offence; the need for the sentence imposed to reflect the
seriousness of the offence; to afford adequate deterrence to the
conduct and to protect the public from such crime are certain
factors to be considered while imposing the sentence. The imposition
of sentence without considering its effect on the social order in
many cases is in reality a futile exercise.
Court has further held
that convicts in various countries, now, voluntarily come forward to
serve the community, especially in crimes relating to motor
vehicles. Graver the crime greater the sentence. But, serving the
society actually is not a punishment in the real sense where the
convicts pay back to the community which he owes. Conduct of the
convicts will not only be appreciated by the community, it will also
give a lot of solace to him, especially in a case where because of
one’s action and inaction, human lives have been lost. (State Tr.
P.S. Lodhi Colony, New Delhi vs. Sanjeev Nanda; 2012 Cr.L.J. 4174
(SC)
S. 376 & 376 r/w S. 120-B—Rape—Reduction
in sentence—Reduction of sentence to less than the prescribed
minimum, without recording “adequate and special
reasons”—Impermissibility of
The statutory requirement for
awarding punishment of less than seven years is to record adequate
and special reasons in writing. The dictionary meanings of the word
“adequate” are commensurate in fitness, sufficient, suitable, equal
in magnitude and extent, and fully. “Special reasons” means
exceptional; particular; peculiar; different from others; designed
for a particular purpose, occasion, or person; limited in range;
confined to a definite field of action. Thus, in a case like the
instant one, in order to impose the punishment lesser than
prescribed in the statute, there must be exceptional reasons
relating to the crime as well as to the criminal. Socio-economic
status, religion, race, caste or creed of the accused or the victim
are irrelevant considerations in sentencing policy.
Awarding punishment lesser than
the minimum prescribed under Section 376 IPC is an exception to the
general rule. Exception clause is to be invoked only in exceptional
circumstances where the conditions incorporated in the exception
clause itself exist. It is a settled legal proposition that
exception clause is always required to be strictly interpreted even
if there is a hardship to any individual. Exception is provided with
the object of taking it out of the scope of the basic law and what
is included in it and what legislature desired to be excluded. The
natural presumption in law is that for the proviso, the enacting
part of the section would have included the subject-matter of the
proviso; the enacting part should be generally given such a
construction which would make the exceptions carved out by the
proviso necessary and a construction which would make the exception
unnecessary and redundant should be avoided. Proviso is used to
remove special cases from the general enactment and provide for them
separately. Proviso may change the very concept of the intendment of
the enactment by insisting on certain mandatory conditions to be
fulfilled in order to make the enactment workable. (State of
Rajasthan vs. Vinod Kumar; (2012) 3 SCC (Cri) 299)
S. 376 – Minimum
sentence should be given in exceptional cases and sympathy has no
place in rape cases
Learned
counsel for the accused has taken us through the reasons assigned by
the High Court. The case on hand, in our considered opinion, does
not fall within the category of exceptional cases and as we have
already observed, we are not convinced with the reasons assigned by
the High Court for reducing the sentence. In this view of the
matter, while allowing this appeal, we set aside that portion of the
order passed by the High Court reducing the period of sentence from
7 years to the period already undergone by the accused. We now
direct that the accused be convicted and sentenced for a period of 7
years. (Pushpanjali Sahu v. State of Orissa & Anr.; 2012 (6)
Supreme 681)
S. 376 – Rape – Nature
of – Rape is a crime against basic human rights
In this
case Court has observed that Sexual violence is not only an unlawful
invasion of the right of privacy and sanctity of a woman but also a
serious blow to her honour. It leaves a traumatic and humiliating
impression on her conscience- offending her self-esteem and dignity.
This Court in State of H.P. v. Shree Kant Shekari,6 (2004) 8 SCC 153
has viewed rape as not only a crime against the person of a woman,
but a crime against the entire society. It indelibly leaves a scar
on the most cherished possession of a woman i.e. her dignity,
honour, reputation and not the least her chastity. It destroys, as
noted by this Court in Bodhisattwa Gautam v. Subhra Chakraborty.
(1996) 1 SCC 490 the entire psychology of a woman and pushes her
into deep emotional crisis. It is a crime against basic human
rights, and is also violative of the victim's most cherished of the
fundamental rights, namely, the right to life contained in Article
21 of the Constitution. The courts are, therefore, expected to deal
with cases of sexual crime against women with utmost sensitivity.
Such cases need to be dealt with sternly and severely.
(Pushpanjali Sahu v. State of Orissa & Anr.; 2012 (6) Supreme 681)
S. 409—Criminal breach of trust by public
servant - Essential ingredients
In order to sustain conviction
u/s. 409, IPC, two ingredients are to be proved; namely, (i) the
accused, a public servant or a banker or agent was entrusted with
the property of which he is duty bound to account for; and (ii) the
accused has committed criminal breach of trust. What amounts to
criminal breach of trust is provided u/s. 405, IPC. The basic
requirement to bring home the accusations u/s. 405 are the
requirements to prove conjointly (i) entrustment and (ii) whether
the accused was actuated by dishonest intention or not,
misappropriated it or converted it to his own use to the detriment
of the persons who entrusted it. (Sadhupati Nageswara Rao vs.
State of A.P.; 2012 Cr.L.J. 4317) (SC)
S. 409—Sentence for committing offence
under is not entitled to lenient treatment while awarding sentence
Sec. 409 enables the Court to
award imprisonment for life or imprisonment upto ten years along
with fine. Considering the fact that the appellant was awarded
imprisonment for 6 months along with a fine of Rs. 1,000/- only, we
feel that the same is not excessive. On the other hand, we are of
the view that persons dealing with the property of the Government
and entrusted with the task of distribution under FFWS, it is but
proper on their part to maintain true accounts, handover coupons to
the Mandal Revenue Office and to execute the same fully and without
any lapse. Such resource has not been followed by the appellant. The
courts cannot take lenient view in awarding sentence on the ground
of sympathy or delay, particularly, if it relates to distribution of
essential commodities under any Scheme of the Government intended to
benefit the public at large. Accordingly, while rejecting the
request of the learned senior counsel for the appellant, we hold
that there is no ground for reduction of sentence. (Sadhupati
Nageswara Rao vs. State of A.P.; 2012 Cr.L.J. 4317) (SC)
Death sentence—Generally—When
warranted—Principles reiterated—Existence of aggravating
circumstances and consequential absence of mitigating
circumstances—Necessity of
After considering the
issue at length, the Court in State of Maharashtra vs. Goraksha
Ambaji Adsul, (2011) 7 SCC 437, held as under: (SCC p. 451, para 41)
“41. … Awarding of death sentence amounts
to taking away the life of an individual, which is the most valuable
right available, whether viewed from the constitutional point of
view or from the human rights point of view. The condition of
providing special reasons from awarding death penalty is not to be
construed linguistically but it is to satisfy the basic features of
a reasoning supporting and making award of death penalty
unquestionable. The circumstances and the manner of committing the
crime should be such that it pricks the judicial conscience of the
court to the extent that the only and inevitable conclusion should
be awarding of death penalty.”
Thus, it is evidence that for awarding the death
sentence, there must be existence of aggravating circumstances and
the consequential absence of mitigating circumstances. As to whether
death sentence should be awarded, would depend upon the factual
scenario of the case in hand. The instant case is required to be
examined in the light of the aforesaid settled legal propositions.
(Neel Kumar vs. State of Haryana; (2012) 3 SCC (Cri) 271)
BACK TO INDEX
Industrial Disputes Act
S. 2-A (2) - Industrial dispute under -
Raised by 2nd respondent - Against the dismissal order -
Labour Court held that there was no violation of principles of
natural justice in procedure adopted in enquiry and required no
interference - There is no question of showing any sympathy to
workman - Labour Court clearly erred in directing reinstatement of
workman - It is not a fit case where any relief can be given to such
workman
Having found the enquiry valid
and also having held that the charges are proved, there is no
question of showing any sympathy to the workman, especially when he
has assaulted his superior in the presence of witnesses, which even
according to the Labour Court was clearly found proved. Once the
enquiry is held to be fair and findings are recorded against the
workman, then the question of invoking section 11-A of the
Industrial Disputes Act, 1947 for series of misconduct will arise.
In the light of the findings
recorded and the legal precedent referred to, it is not a fit case
where any relief can be given to the second respondent workman and
the Labour Court clearly erred in directing reinstatement of the
workman, though without back wages and it did not take into account
the binding precedent of the Supreme Court made in this regard.
Hence, the impugned award dated 24.5.2006 passed in I.D. No.
623/1999 by the first respondent Labour Court stands set aside.
(Management, Metropolitan Transport Copn. Ltd. Vs. Presiding
Officer, Ist Addl. Labour Court, Chennai & another; (2012 (135) FLR
616) (Mad HC)
S. 2(s) –
Workman - Determination of - Mere designation, source or method of
employment, terms and conditions of employment, quantum of wages
would not decide - Nature of primary duties performed by the
employee would decide it - He could not be sent on deputation
without consent - Action of management to send the workman on
deputation was void ab initio
Transfer-Vis-à-vis deputation - Transfer can be done only on
equivalent post in same cadre - Transfer is an incidence of service
as per condition of service, reasonable notice of transfer to be
given - In deputation the employee can be sent in other department -
There is difference between transfer and deputation
What emerges from the evidence,
oral as well as documentary, is that the respondent No. 2 is a
workman within the meaning of section 2(s) of the Industrial
Disputes Act, 1947. He could not be sent on deputation without his
consent.
It is conclusively proved that
the action of the Management to sent the workman on deputation was
void ab initio. The Management has not instituted any
disciplinary proceedings against the workman in view of the interim
award. The Management was legally bound to restore the status of the
workman before the passing of order dated 24.8.2002. The Management
was bound to pay the salary to the workman w.e.f. 24.8.2002 till his
superannuation.
The award passed by the learned
Labour Court is reasoned and there is no perversity in the same.
Learned Labour Court has discussed the entire oral as well as
documentary evidence and has correctly applied the ratios of the
judgments to determine the principles of ‘deputation’ and ‘workman’
within the meaning of section 2(s) of the Industrial Disputes Act,
1947.
It is evident from the language
employed in paragraph No. 33 of the Standing Orders that workman can
be transferred according to the exigencies of work from one shop or
department to another or from one station to another or from one
work place to another, from one establishment to another anywhere in
India in existing establishment or to be set up in future under the
Management of the Company and from one Associated Company to
another. However, as per proviso, where a transfer involves moving
from one station to another, such transfer shall take place either
with the consent of the workman or where there is specific provision
to this effect in the letter of appointment and also that a
reasonable notice is given to such workman and reasonable joining
time is allowed in case of transfer from one station to another.
There is a difference between
transfer and deputation. The deputation can only take place with the
expressed consent of an employee. Even, as per condition No. 1 of
appointment letter, the workman could be transferred anywhere, but
he has to be given reasonable notice as per paragraph No. 33 of the
Standing Orders and also reasonable joining time to join. The
Management has not placed any record to substantiate that reasonable
notice was ever issued to the workman before sending him on
deputation on 24.8.2002. Learned Industrial Tribunal-Cum-Labour
Court, Shimla has rightly given a finding in paragraph No. 18 that
without the expressed consent of the workman, he could not be sent
on deputation. The workman, in there circumstances, could not be
forced to join his duties at Lucknow on the basis of notices
published in daily edition of Tribune and Dainik Tribune and final
notice dated 10.5.2003
The transfer is always limited
to equivalent post in the same cadre and in the same department.
Deputation and transfer basically differ from each other in the
sense that transfer can be only to an equivalent post in the same
cadre; deputation must be in department other than the parent
department where even equivalence may not have been determined.
Transfer is right of the master and it is an incident of service and
can only be challenged on the grounds of mala fide or violation of
statutory rule relating to transfer. Deputation can only be with the
consent because the employee joined department to render service in
that department and he cannot be made to serve somewhere else may be
in a post much lower to his post. (Mohan Meakin Limited, Solan
Brewery, Solan Vs. Prisident, Mohan Meakins Staff Union and others;
(2012(135) FLR 595) (HP HC)
Ss. 2 (s)
& 25-F – Daily-wager - He worked as Messenger and Night watchman
from 15.11.1984 to 9.9.1988 - He was refused employment from
10.9.1988 - Without employing s. 25-F of Act - Award of
reinstatement without back wages passed by Labour Court/Industrial
Tribunal - Award does not suffer from any jurisdictional error or
any error of law apparent on face of it - Nor there is any grave
error of fact based on any admissible evidence or own evidence - Any
interference with award not required - Workman kept silent and did
not agitate the matter for over two years - Hence, the Tribunal
rightly denied back-wages to him - However, the Court directs that
he be paid minimum wages as a daily-wager
The award passed by the
Industrial Tribunal does not suffer from any jurisdictional error or
any error of law apparent on the face of it, nor there is any grave
error of fact based on any admissible evidence or own evidence. Such
being the case, there is hardly any scope to interfere in the
findings recorded by the Tribunal.
The Industrial Tribunal has come
to the conclusion that the workman is not entitled to back wages in
view of the fact that the workman kept silent and did not agitate
the matter for over two years. The Tribunal further noted that any
direction for payment of back wages for the period of inaction on
the part of the workman would be an avoidable and unnecessary burden
on the Bank’s exchequer. Such reasoning appears correct to this
Court and hence, there is no reason to modify the same. So before
parting with the cases, this Court directs that the workman be paid
minimum wages as a daily wager as long as he is discharging his
duties. (Management, State Bank of India Vs. Bhaskar Moharana and
another; (2012 (135) FLR 87) (Orissa High Court)
S. 11-A –
Discretion - Labour Court - Power of – Labour Court can substitute
punishment - But to hold that no punishment deserved to be given to
the delinquent workman - Even though found guilty of misconduct - Is
not within the powers of Labour Court - In this case punishment of
removal from service was not shockingly disproportionate to
misconduct of exceptionally long period of absence
Section 11-A does empower the
Labour Court to give any relief to a workman who has been
discharged, removed or dismissed from service for some misconduct by
the said provision does not empower the Labour Court to reward a
guilty workman and that is what has been done by the Labour Court in
the present case. The Labour Court can substitute the punishment
awarded by the employer with any lesser punishment by to hold that
no punishment deserved to be given to the delinquent workman even
though found guilty of misconduct is not within the powers of the
Labour Court. In fact even in the final award also it was observed
by the Labour Court that the workman could not claim any benefit for
his ‘follies’.
And considering the
exceptionally long period of respondent’s absence from duty during
the 1991-92 it cannot be said that the punishment of removal from
service was shockingly disproportionate to the alleged misconduct
and highly excessive which justified interference by the Labour
Court, what to talk of letting him go scot free. (Delhi Transport
Corporation Vs. Jai Prakash; (2012 (135) FLR 261) (Delhi High Court)
Ss. 12 (5)
& 10 (1) (d) – Regularization – Permanency - Award by Tribunal
directing to make permanent in service to employees involved in
demand No. 8 and to pay monetary benefits of permanency in two
instalments - Petitioner being “Local Authority” and “State” within
meaning of Article 12 of Constitution - Petitioner is not an
industrial establishment within meaning of section 2 (e) of
Industrial Employment (Standing Orders) Act, 1946 (IESO Act) -
Provisions of IESO Act not applicable as ordered - Petitioner cannot
bear the financial burden of benefits claimed arising out of demand
referred - Resultantly the order granting permanency is set aside -
It is to be read as right to claim permanency on receiving sanction
The aspect of financial
position of the petitioner/Corporation just cannot be gone into
while deciding the claim of permanency in such fashion unless
Government sanctions and/or creates and/or permits them to grant
permanency in accordance with law.
Any local authority cannot be
equated with “establishment” or “industrial undertaking” for
granting permanency and/or related claim as it is always subject to
grant/approval and sanctioned and vacant post. All these ingredients
are interlinked, therefore, undissectable only for grant of
permanency.
Therefore, taking overall view
of the matter, I am not inclined to accept that the provisions of
IESO Act is applicable to the petitioner/Municipal Corporation for
the purposes of grant of permanency as ordered. I am also not
inclined to accept that the petitioner can bear the financial burden
of the benefits claimed arising out of the demand as referred for
adjudication. The petitioner is not an industrial establishment
within the meaning of section 2(e) of the IESO Act for the purposes
of permanency as claimed and/or as granted.
The order of Member, Industrial
Tribunal, Sangli dated 28 February, 2011, to the extent of granting
permanency is set aside. However, it is to be read as right to claim
permanency on receiving sanction and/or approval from the Director
of Municipal Administration and/or the State Government if the posts
are vacant and/or there is a vacancy and/or the posts are created.
(Sangli Mirja Kupwad Cities Municipal Corporation, Sangli through
Commissioner Vs. Mahapalika Kamgar Sabha, Sangli; (2012 (135) FLR
542) (Bombay High Court)
S. 17-B -
Application under - Sought minimum wages during pendency of
industrial dispute in higher Court - Employer has to pay to workman,
full wages last drawn by him - If the workman had not been employed
in any establishment - However, the Court has to see that the
workman if in employment, if has been receiving adequate
remuneration - Transient employment and self-employment would not be
a bar to relief under section 17 (b) of Act - Interim relief can be
granted w.e.f. the date of award - Wages which are amended are not
confined to the last drawn wages - Workman has to establish that he
is not gain fully employed - Applicants respondents are entitled to
relief sought under section 17 (b) of Act - Petitioners are directed
to calculate and debursed it to applicant workman
The employer shall be liable to
pay such workman, during the period of pendency of such proceedings
in the High Court or the Supreme Court, full wages last a drawn by
him, inclusive of any maintenance allowance admissible to him under
any Rule, if the workman had not been employed in any establishment
during such period and an affidavit by such workman has been filed
to that effect in such Court.
The wages which are amended are
not confined to the last drawn wages. The workman however has to be
establish that he is not gainfully employed in order to be entitled
to an order for award of wages.
The Court has to see that the
employment under another employer should be proved that the workman
has been receiving ‘adequate remuneration’.
The interim relief can be
granted with effect from the date of the award. The transient
employment and self-employment would not be a bar to relief under
section 17(b) of the Industrial Disputes Act.
In view of the discussion
above and the settled law, I am of the considered opinion that the
applicant-respondents are entitled to the relief sought under
section 17(b) of the Industrial Disputes Act. (Mrs. Kiran Uppal,
Prop. M/s. Class Vs. Ashok Kumar and others; (2012 (135) FLR 244)
(Delhi High Court)
S. 17-B -
Termination of service of respondent - By award of Industrial
Tribunal, termination of services held to be unjustified and illegal
and he was reinstated - Award challenged by management - Application
for payment of minimum wages has to be allowed - Cannot be rejected
on ground of delay - However, the petitioner management is directed
to pay the respondent his last drawn wages or minimum wages
In my view this
application has to be allowed and cannot be rejected on the ground
of delay in filing of the same in view of the decision of the
Division Bench of this Court in the case of “DTC v. Inderjit
Singh”
The petitioner-management is
directed to pay to respondent-workmen his last drawn wages or the
minimum wages fixed from time to time, whichever are higher, from
the date of passing of the impugned Award till the pendency of this
writ petition, provided the workman files an undertaking within two
weeks that in case the petitioner succeeds finally in its petition
and it is found that he has received wages in excess of what he was
entitled to get under section 17-B of the I.D. Act he shall refund
the excess amount to the petitioner-management within four weeks
from the date of passing of the judgment by this Court. (M.T.N.L.
Vs. Ram Rattan; (2012 (135) FLR 403) (Delhi High Court)
Ss. 25-F, 15-G and 25-H – Reinstatement -
Even if there is violation of sections 25-H and 25-G of Act - In
would not automatically grant reinstatement in service with back
wages - Compensation instead of reinstatement would be proper in the
case
In view of above principles of
law laid down by Hon’ble Apex Court, it is clear that even if there
is violation of section 25-H and section 25-G of the Act, the same
would not mean that the Labour Court should have automatically
passed an award of reinstatement has been held proper to meet the
ends of justice. (Nandu Devi Vs. Judge, Labour Court No. 2,
Jaipur and others; (2012 (135) FLR 852) (Rajashan HighCourt)
S. 25-F -
Non-compliance of - Workman had worked more than 293 days within a
period of one calendar year - More than 240 days in 12 months - But
before dispensing his services, legal requirement under section 25-F
not complied with - Industrial Tribunal, therefore, directed
reinstatement with 50% back wages and other consequential benefits -
In light of legal precedents and factual matrix - It is not a fit
case for interference with award
In the light of the legal
precedents and the factual matrix recorded by the CGIT, it is not a
fit case where any interference is called for. In fact the earliest
case on the point is State Bank of India Vs. Shri N. Sundara
Money (1976 (32) FLR 197(SC). The Supreme Court dealt with the
case of substitute workman and yet held that if a workman completes
240 days in a period of 12 calendar months, his services cannot be
dispensed with unless the mandatory condition precedent laid down is
complied with by the employer. In such circumstances, reinstatement
with back wages is the normal relief that had been laid by the
Supreme Court. In fact that case did not arose out a proceeding
before the Labour Court, but it arose out of a proceeding instituted
before the High Court under Article 226.
(Principal General Manager, Bharat
Sanchar Nigam Ltd. Vs. Central Government Industrial
Tribunal-cum-Labour Court, Chennai and another; (2012 (135) FLR 146)
(Mad HC)
S. 33-C
(1) - Payment of salary - Tribunal had correctly held that
subsequent to refusal of permission to grant lay-off - Management
had attempted to call workers for work but denied their service
conditions i.e. transport facility and canteen facility - No notice
under section 9-A was granted for - Depriving the workers of their
service conditions disabled them to report for work - Tribunal had
rightly held that they are entitled to full salary from August
16,2000 till the date of allotment of work - No case found to
interfere with conclusions reached by the Tribunal and the final
relief granted to workmen
The Tribunal held that
the demand of the union claiming full salary for the period of
denial of work to 39 workers excepting one Senthil kumar from June,
2000 till the allotment of work was justified. Further the demand of
the union claiming that the layoff and denial of work from 16.8.2000
as illegal and they are entitled for full salary from 16.8.2000 till
the date of allotment of work was justified. It is this award which
had become the subject-matter of writ petition in W.P. No. 10362 of
2009.
The Tribunal had correctly held
that subsequent to the refusal of permission to grant layoff, the
management had attempted to call the workers for work. But at the
same time, it had denied their service conditions, i.e., transport
facility. Insofar as the canteen facility is concerned, it is the
statutory requirement under section 46 of the Factories Act, 1948.
The denial of the canteen facility will deprive the workers of their
having food during lunch time. The denial of transport facility
which was hitherto provided will hamper the travel to the factory
and it had already become a condition of service. No notice under
section 9-A of the I.D. Act was granted for depriving the conditions
of service. Hence the workers were legitimate in not reporting to
work in the absence of their service conditions being followed.
Depriving the workers of their condition of service will disable
them to report for work. This was especially when the conciliation
officer himself on a demand made by the union had advised the
management to restore those facilities.
In view of the above, this Court
do not find any case is made out to interfere with the conclusions
reached by the Tribunal and the final relief granted to the workmen.
(D.C.M. Hyndai Ltd. and another Vs. State of Tamil Nadu and
others; (2012 (135) FLR 57) (Mad HC)
S. 33(2)—No work no pay—Workmen were not
allowed to work—Moved respective petitions claiming wages—Wages
cannot be denied to a workman unless there were circumstances that
would deny a workman the wages on the basis of “no work no
pay”—Held, “workmen entitled to wages for the period they were
denied work”
In this case, the application
filed under Section 33-C (2) of the Industrial Disputes Act before
the Labour Court by the workmen working in the Sugar Factory for
salary during the period when they had not been paid their wages and
when, according to the workmen, they were not allowed to work, the
Labour Court found that the denial of employment at the relevant
time was not justified and also found that the wages during the
period when they were unjustly denied employment were to be paid.
Even as
regards the issue on merit, I will not find any reason to interfere
with the awards passed by the Labour Court since the management
itself has admitted in the course of proceedings that the
termination of services of the workmen was liable to be reversed and
hence restored their services. The counsel appearing on behalf of
the respondents relies on a judgment in CWP No. 18810 of 1995. In
that case, the Division Bench has considered the issue of the
maintainability of the petition claiming wages for a period when the
workmen were not permitted to join duty and do their work. The Bench
held, "it is a settled proposition of law that where the services of
a workman are illegally terminated without justification, he is
entitled to reinstatement with full back-wages Instead of
implementing the award in letter and spirit, they chose not to pay
back wages to which the respondent No.2 (workman) was entitled." In
such a situation when a petition under Section 33-C (2) was filed,
the Division Bench upheld the claim and rejected the plea that the
petition and was not maintainable. The learned counsel for the
workmen points out to the fact that when they had moved respective
petitions claiming wages, the management had offered to take them
back with full continuity of service. This fact has also been found
reflected in the award of the Labour Court. If they were entitled to
be taken back with continuity of service, the denial of wages shall
not be merely done unless there were definite circumstances that
would deny to a workman the wages on the basis of 'no work, no pay'.
However, if the denial was not justified, there is no reason why the
employer must be rewarded with a benefit of not paying the workmen
the wages which they were entitled to. (Panipat Cooperative Sugar
Mills Limited vs. Presiding Officer, Labour Court, Ambala; 2012(2)
SLR 788 (P&H HC)
Sch. 2 Item 6—Equal pay for equal
work—Existence of post mandatory for application of said principle
The workman Brij Nandan
Lal admittedly was engaged as Mazdoor on 1.6.1963 in Farrukhabad
Depot of erstwhile State Transport Department of U.P. Government
which subsequently became Uttar Pradesh State Road Transport
Corporation (hereinafter referred to as “UPSRTC”) a statutory body
under State Road Transport Act. he claims that after promotion of
one Om Prakash Shakya, Store Clerk as Assistant Store Keeper on
1.2.1979, post of Store Clerk fell vacant and the authorities
concerned deployed the workman Braj Nandan Lal to perform duties of
Store Clerk. He has functioned and discharged the aforesaid duties
but ahs not been given designation and other consequential benefits
of the said post. He raised an industrial dispute in 1989. The
conciliation proceedings having been failed on the recommendation of
Conciliation Officer, the State Government in exercise of power
under Section 4-K of the U.P. Industrial Disputes Act, 1947
(hereinafter referred to as “Act 1947”) vide notification dated
6.12.1989, made the following reference for adjudication by Labour
Court respondent No.2.
The workman files a detailed
written statement and also adduced certain documents to show that he
had been performing certain duties which are clerical in nature. The
documents also include his own letter in which he has claimed to
have been discharging duties as Store Clerk since 1979 and therefore
claimed regular appointment on the said post. A document said to be
letter dated 17.7.1986 sent by Deputy Manager, Central Zone
recommending for regular appointment of the workman in stores was
also filed before the Labour Court.
The employer, on the contrary,
took the stand in the written statement that the workman was a
permanent Mazdoor i.e. a Class IV employee and was never appointed
on the higher post of Store Clerk by any competent authority in
accordance with procedure prescribed in the rules.
The Labour Court itself has observed that if the post
was not available, the workman ought to have been allowed pay and
salary admissible to a clerical misdirected itself by ignoring that
in order to apply principle of ‘equal pay for equal work’. In
Court’s view the Tribuanl has clearly misdirected itself by ignoring
that in order to apply principle of “equal pay for equal work”
existence of a post has to be shown. Even otherwise, no principle of
service jurisprudence has been shown to exist that a person if not
recruited or employed in accordance with the procedure prescribed,
yet, if worked or discharged duties of a particular nature, he would
have a lien and right to claim a particular designation and even if
it does not exist. (U.P. State Road Transport Corporation vs.
Brij Nandan Lal; 2012 (5) ALJ 716)
BACK TO INDEX
Juvenile Justice (Care & Protection of Children) Act
Ss. 2(1), 7A, 20 -
Appellant convicted under S. 307, I.P.C. and sentenced to RI - Plea
of juvenility raised for first time before Supreme Court - Appellant
found to be juvenile on date of offence on basis of school leaving
certificate - Act in all force would therefore apply - Considering
fact that offence was more than 10 years old and appellant has
crossed 30 yrs. of age - Court refused to remit matter to Juvenile
Justice Court - Instead while upholding conviction set aside
sentence imposed on appellant
Going by
sub-rule (3)(a)(ii) of aforesaid Rule 12, the date of birth
certificate from the school (other than a play school) first
attended, comes at the second stage in the order of priority for
consideration to ascertain the age of accused claiming to be a
juvenile. In the case on hand, the appellant does not claim to be a
matriculate. Therefore, the question of matriculation or equivalent
certificate and its availability does not arise. The present claim
as a juvenile is based on the School Leaving Certificate issued by
the school in which the appellant stated to have studied up to 5th
class, namely, Primary School, Chitayan, Distt. Mainpuri, Uttar
Pradesh. As per the said certificate, the date of birth recorded in
the school admission register and the corresponding entry in the
School Leaving Certificate was 01.12.1981. The appellant stated to
have joined the school on 08.1989 and left the school after
subsequently completing his 5th standard on 01.07.1992. The
correctness of the said certificate was examined by the learned
District Judge, It was as directed by this Court as to be seen from
the report dated 26.03.2012. The Principal Head Master of the School
also verified the admission register. The counterfoil of the said
School Leaving Certificate is placed before this Court. A perusal of
the report also discloses that the certificate was genuine, that the
date of birth record therein has been found to be correct and once
the said position could be ascertained based on the above report,
applying Rule 12 (3) as well as sub- rules (4) and (5) the said Rule
read along with Section 7 A of the Act the appellant on 11.03.1998
was 16 years 3 months and 10 days old. The appellant, therefore, is
covered by the decision of this Court in Hari Ram (AIR 2011 SC (Cri)
2053) supra). Since the appellant was below 18 years of age on the
date of commission of the offence, the provisions of the Act would
apply in full force in his case.
Having
regard to the above conclusion, in the normal course we would have
remitted the matter to the Juvenile Justice Court, It was for
disposal in accordance with law. However, since the offence was
alleged to have been committed more than 10 years ago and having
regard to the course adopted by this Court in certain other cases
reported in Jayendra & Anr. v. State of Uttar Pradesh, 1981 (4) SCC
149 : (AIR 1982 se 685), Bhoop Ram v. State of U.P., 1989 (3) SCC 1
: (AIR 1989 se 1329) which were subsequently followed in Bhola
Bhagat v. State of Bihar, 1997 (8) SCC 720 : (AIR 1998 se 236: 1997
AIR SCW 4205), Pradeep Kumarv. State of U.P., 1995 Suppl (4) SCC
419: (AIR 1994 se 104: 1993 AIR SCW 3733), Upendra Kumar v. State of
Bihar, 2005 (3) SCC 592 and Vaneet Kumar Gupta alias Dharminder v.
State of Punjab, 2009 (17) SCC 587, we are of the view that at this
stage when the appellant would have now crossed the age of 30 years,
there is no point in remitting the matter back to the Juvenile
Justice Court. Instead, following the above referred to decisions,
appropriate orders can be passed by this Court itself.
Having
regard to such a course adopted .by this Court in the above reported
decisions, and in the case on hand based on the. report of the
District and Sessions Judge, we are also convinced that the
appellant was below 18 years of age on the date of commission of
offence and the Juvenile Justice Act would apply in full force in
his, case also. While upholding the conviction imposed on the
appellant, we set aside the sentence imposed on him and direct that
he be released forthwith, if not required-in any other case, the
appeal is partly allowed to the extent indicated above. (Vijay
Singh v. State of Delhi; AIR 2012 SC 3537)
Ss. 7-A, 33, 49 and 2(y) – Juvenility –
Determination of – Nature, Scope and ambit of inquiry expected of
court, Juvenile Justice Board and child welfare committee while
dealing with claim of juvenility under JJ Act, 2000
“Age determination inquiry”
contemplated under Section 7-A of the JJ Act read with Rule 12 of
the 2007 Rules enables the court to seek evidence and in that
process, the court can obtain the matriculation or equivalent
certificates, if available. Only in the absence of any matriculation
or equivalent certificates, does the court need to obtain the date
of birth certificate from the school first attended other than a
play school. Only in the absence of matriculation or equivalent
certificate or the date of birth certificate from the school first
attended, the court needs to obtain the birth certificate given by a
corporation or a municipal authority or a panchayat (not an
affidavit but certificates or documents). The question of obtaining
medical opinion from a duly constituted Medical Board arises only if
the abovementioned documents are unavailable. In case exact
assessment of the age cannot be done, then the court, for reasons to
be recorded, may, if considered necessary, give the benefit to the
child or juvenile by considering his or her age on lower side within
the margin of one year.
Once the court, following
the above mentioned procedures, passes an order, that order shall be
the conclusive proof of the age as regards such child or juvenile in
conflict with law. It has been made clear in Rule 12(5) that no
further inquiry shall be conducted by the court or the Board after
examining and obtaining the certificate or any other documentary
proof after referring to Rule 12(3). Further, Section 49 of the JJ
Act also draws a presumption of the age of the juvenility on its
determination.
Age determination inquiry contemplated under the JJ Act and Rules
has nothing to do with an enquiry under other legislations, like
entry in service, retirement, promotion, etc. There may be
situations where the entry made in the matriculation or equivalent
certificates, date of birth certificate from the school first
attended and even the birth certificate given by a corporation or a
municipal authority or a panchayat may not be correct. But court,
Juvenile Justice Board or a Child Welfare Committee functioning
under the JJ Act is not expected to conduct such a roving enquiry
and to go behind those certificates to examine the correctness of
those documents, kept during the normal course of business. Only in
cases where those documents or certificates are found to be
fabricated or manipulated, the court, the Juvenile Justice Board or
the Child Welfare Committee need to go for medical report for age
determination. (Ashwani Kumar Saxena v. State of Madhya Pradesh;
(2012) 9 SCC 750)
BACK TO INDEX
Land Acquisition Act
Ss. 3(b), 28-A—Person interested—Meaning
of
It is clear that the expression “person interested” as
used in Section 3(b) of the Act has to be given a liberal
construction. The definition being only illustrative and not
exhaustive, any claim of a person interested in the compensation has
to be adjudicated and the application filed by the respondent No. 3
under Section 28-A of the Act cannot be thrown out at the threshold
on the ground that the application is not maintainable since the
respondent No. 3 is not a person interested. The question as to
whether the applicant, who is respondent No. 3, makes out a case for
entitlement for redetermination of the compensation is another
question on merits of the application which is entirely different
from the maintainability of the application on the ground of
claiming interest in the compensation. Court, thus concluded that
the application filed by the respondent No. 3 under Section 28-A of
the Act cannot be thrown out at the threshold on the aforesaid
ground and the same requires consideration on merits. (Allahabad
Development Authority vs. State of U.P.; 2012 (5) ALJ 465)
BACK TO INDEX
Land Law
Rajasthan Tenancy
Act, S. 42 - Property of SC/ST - Restriction on transfer to person
who is not SC/ST - Applies even to juristic person
The restriction on transfer of property of SC /ST to person who is
not SC/ST provided in S. 42(6) applies even to transfer made
to juristic person, Expression “Scheduled Castes” and “Scheduled
Tribes”, in Section 42(b) of the Act have to be read along with the
constitutional provisions and, if so read, the expression who is not
a member of the Scheduled Caste or Scheduled Tribe would mean a
person other than those who have been included in the public
notification as per Articles 341 and 342 of the Constitution. The
expression 'person' used in Section 42(b) of the Act therefore can
only be a natural person and not a juristic person. If the view that
word 'person' includes juristic person and as juristic person has no
caste sale to juristic person is not hit by S. 42 is accepted the
entire purpose of Section 42 will be defeated. (State of
Rajasthan v. Aanjaney Organic Herbal Pvt. Ltd.; 2012 AIR SCW 5194)
BACK TO INDEX
Legal Services Authorities
Act
S. 21—CPC, O. 23, R. 3 proviso—Motor
accident claim—Award of Lok Adalat on basis of compromise while
compromise had not been signed by parties—Validity of
The petitioner has come up with
a clear case that there was no compromise drawn up in writing or
signed by the petitioner and, therefore, the recital contained in
the order that the claimant has also signed the same is incorrect.
She further submits that her counsel had not been instructed to
enter into any compromise. The compromise memo was unauthorized and
was not in conformity with the provisions of Order XXIII read with
Rule 3 (A) of Civil Procedure Code.
In the instant case there is no
dispute that the compromise was not signed by the petitioner and the
records also indicates the same impugned order, therefore,
incorrectly assumes that the petitioner had signed the compromise.
The authorization through the vakalatnama has to be supplemented by
the actual compromise being signed by the parties themselves.
In view of this wrong assumption
of fact and keeping in view the law laid down by the Apex Court in
the case of Banwari Lal (AIR 1993 SC 1139) (supra), the order dated
29th July, 2001 and the subsequent order dated 25.3.2006
rejecting the Misc. application of the petitioner, cannot be
sustained.
Accordingly the impugned orders
dated 29th July, 2001 and 25.3.2006 are set aside. The
matter stands remitted to the Motor Accident Claims Tribunal to
proceed to decide the claim in accordance with law ignoring the said
compromise as expeditiously as possible. (Smt. Madhu Bala vs. H.P.
Singh; 2012 (5) ALJ 464)
S. 22B—Jurisdiction of permanent Lok
Adalat to adjudicate dispute on merit—Scope—Permanent Lok Adalat is
not bereft of jurisdiction to adjudicate dispute on merits when it
relates to public utility service
The aforesaid judgments
referred to the provisions of Legal Services Authorities Act, 1987
(hereinafter referred to as the “Act, 1987”) prior to its amendment
made in 2002 hence have no application to this case. After the
amendment of Act, 1987 power of Parmanent Lok Adalat in relation to
adjudication has already been settled by Apex Court and the said
decision has been followed by this Court also.
In respect to a Public Utility
Service, jurisdiction of Permanent Lok Adalat can be invoked. A
dispute can be raised before Permanent Lok Adalat provided the
parties had not already taken up their matter before any Court.
In Writ Petition No. 58289 of
2011 (Deputy General Manager, Bhartiya Door Sanchal Nigam Ltd. vs.
Ram Kumar Sharma & Ors.), decided on 17th October, 2011
(reported in 2012 (1) ALJ 649) and therein the Court has affirmed
the decision of Permanent Lok Adalat granting damages on account of
failure on the part of Public Utility Service to serve the
individual concerned in rendering a particular service, which it was
supposed to do so.
The above discussion and exposition of law, as laid down
above, leaves no manner of doubt that Permanent Lok Adalat, in the
present case, was not bereft of jurisdiction and the impugned order
warrants no interfere on the ground of alleged lack of jurisdiction
which this Court answer in negative. (Dr. Piyush Gupta vs. Smt.
Suman Karanpal; 2012 (5) ALJ 669)
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Limitation Act
S. 5 – Condonation
of delay-of 2 years and 263 days in filing appeal - Delay in filing
appeal is not sufficiently explained – Delay cannot be condoned
In
the case of R.B. Ramlingam v. R.B. Bhuvaneswari; 2009 (106) RD 813
the Hon’ble Supreme Court has held that filing of review petition is
no impediment in filing special leave petition and as a proposition
per se that the prosecution of review proceeding would not be a
sufficient ground at all for purposes of Section 5 of the Limitation
Act. In each and every case the Court has to examine whether delay
in filing the special leave petition stands properly explained. True
guide is whether the petitioner has acted with reasonable diligence
in prosecution of his appeal or petition.
In
view of these guidelines we are of the view that filing of review
petition was no impediment for the appellant to prefer an appeal
before this Court challenging the impugned award. If for the sake of
argument it is assumed that the appellants were pursuing their
review petition bona fidely even then inordinate delay in
challenging the award i.e. after 3.9.2011 up to 7.5.2012 is not
sufficiently explained. The explanation given by the appellant that
the delay was caused in getting sanction/approval form the Chairman
to prefer appeal before this Court, is no sufficient ground to
condone the delay as per judgment dated 3.7.2010 (reported in 2010
(7) ADJ 838) rendered by this Court in Second appeal (Defective) No.
250 of 2010, State of U.P. though collector, Azamgarh v. Keshv
Murari Rai.
In view of the aforesaid reasons we find that the appellant has not
been able to sufficiently explain the delay in filing the appeal.
The cause shown is not sufficient to condonate inordinate delay of 2
years and 263 days. Thus, the application under Section 5 of the
Limitation Act is rejected. (Delhi Transport Corporation,
Indraprasth Delhi v. Leelu & Ors.; 2012(6) ALJ 258)
BACK TO INDEX
Minimum Wages Act
S. 20, proviso to ss. 20(2) and 20(3) –
Const. of India, 1950 –Art. 21 - Minimum wages and penalty -
Impugned order directing to pay minimum wages and imposed penalty
for breach committed - No positive evidence of paying minimum wages
produced - Fundamental right as guaranteed under Art. 21 is violated
- And minimum wages not paid by petitioner – Hence, awarding
compensation three times of amount claimed also justified - Not
arbitrary or on higher side - No interference required with -
Petition is liable to be dismissed - Petition dismissed with cost of
Rs. 10,000/- payable to workman
Principle laid down by
the Supreme Court is aptly applicable to the fact situation of the
present case having regard to the illegality, injustice and
miscarriage of justice done to the concerned workers by the
petitioner in not paying the minimum wages to them for the period in
question as mentioned in the order passed by the Minimum Wages
Authority and we have to exercise our discretionary power to condone
the delay in filing the application for computing the minimum wages
and award compensation along with other monetary benefits as the
Minimum Wages Authority has done justice to the workmen after
placing reliance upon the decisions of the Apex Court. We
accordingly condone the delay and supplement to the order passed by
the Minimum Wages Authority to render justice to the workmen as
their statutory rights has been flagrantly violated.
The finding that minimum wages
were not paid to the concerned workmen for the period in question is
based on proper appreciation of legal evidence in the absence of
positive documentary evidence required to be produced by the
petitioner before the Minimum Wages Authority. Therefore, the
finding of fact recorded by the Authority on the contentious issue
cannot be termed as erroneous. Having recording the finding of fact
that minimum wages were not paid by the petitioner to the concerned
workmen for the period in question awarding the same with
compensation three times of the amount claimed is also justified in
view of the fact that under provision of section 20 read with sub
section (3) of the Minimum Wages Act, the Authority has the power to
award ten times compensation. In the instant case, having regard to
the findings of non-payment of minimum wages to the workmen it is in
violation of fundamental rights guaranteed under Article 21 of the
Constitution of India which is the ratio laid down by the Supreme
Court.
The payment of less wages than the minimum wages is a
violation of fundamental rights under Article 21 of the
Constitution. In that view of the matter awarding compensation of
three times of the minimum wages payable by the petitioner to the
workmen is perfectly legal and valid, and it cannot be said that the
same is on the higher side for the reason that the same could have
been ten times more than the minimum wages payable to the workmen by
the petitioner-Employer awarded by the authority. That has not been
done in the instant case and only compensation of three times of the
amount claimed has been awarded which cannot be termed as arbitrary,
unreasonable or on the higher side. (General Security &
Information Services (P) Ltd. Vs. Chief Rolling Stock Engineer, East
Cost Railway Administration, B.B.S.R. and others; (2012 (135) FLR
63) (Orissa High Court)
BACK TO INDEX
Motor Vehicles Act
Ss. 2(30) and 50 – Liability of
Registered owner – Transfer of vehicle – Pay and recovery order –
Validity of
The appeals are by registered
owner, who claims that he had transferred the vehicle already to the
respondent No. 5 and, therefore, the award could not have been
passed against him. Transfer of a vehicle could take place by
delivery and registration of the vehicle itself will be only
evidence of such transfer and not a document of transfer itself.
However, if a claim emanated from a third party, there will be
nothing wrong about a Tribunal passing an order against a registered
owner and also provide a right of recovery against the subsequent
purchaser who is arrayed as a party. The duty to satisfy a claim by
registered owner was laid down authoritatively by the Hon'ble
Supreme Court in Dr. T. V. Jose v. Chacko P.M., 2001 ACJ 2059 (SC)
and this decision was also cited by the Hon'ble Supreme Court in
Pushpa v. Shakuntala, 2011 ACJ 705 (SC). Respondent No. 5 and
already a party and the appellant will not be driven to a separate
suit for securing a right of recovery of the amount from the
subsequent purchaser. It is clarified here that the recovery rights
provided by the award shall be enforced in execution after
satisfying the claim of the third party. (Ashutosh Batra vs. Annu
and others; 2012 ACJ 2319)
S. 3—Driving without licence—Driver
holding American driving licence does not exculpate driver
A person who is conversant in
driving a motor vehicle who is conversant in driving a motor vehicle
in the United States and European countries may not be familiar with
the road conditions in India. In India, the driver is always on the
defensive due to various reasons. Pedestrains in India seldom use
footpaths nor respect Zebra lines or traffic lights, two wheelers,
auto rickshaws, cyclists and street vendors are common sights on
Indian roads. A driver on Indian roads should expect the unexpected
always, therefore, the plea that the accused has an American driving
licence is not an answer for driving in Indian roads unless it is
recognized in India or that person is having a driving licence
issued by the Licensing Authority in India. (State Tr. P.S. Lodhi
Colony, New Delhi vs. Sanjeev Nanda; 2012 Cr.L.J. 4174 (SC)
S. 3(1) r/w s. 2(47) – Driving licence – Badge – Requirement
of
Driver cum-owner (respondent No.
4 herein) who was driving the vehicle at the relevant time did have
a driving licence authorising him to driver a light motor vehicle.
He did not have a further authorisation specifically authorising him
to drive the passenger autorickshaw-a transport vehicle. That the
driver was driving a transport vehicle without the requisite
specific authorisation to drive a transport vehicle (hereinafter
referred to as the badge for convenience) is not disputed. It is of
course true that subsequently the driver had obtained a badge
authorising him to drive the transport vehicle/passenger
autorickshaw. On the date the accident, admittedly he did not have a
valid badge authorising him to drive a transport vehicle. The
accident was on 13.8.2005 and he had the requisite badge only w.e.f.
13.12.2005.
Learned counsel for the
insurance company contends and it is not virtually disputed that the
further authorisation (badge) as insisted by the latter part section
3 (1) was not there for the owner cum-driver. It is not trite that a
person driving a motor vehicle must first possess the driving
licence referred to in the former part of section 3 (1). But if he
was driving a transport vehicle, he must have the further
authorisation (badge) as insisted by the latter part of section 3
(1). It is unnecessary to embark on a more detailed discussion on
this aspect. The last trace of doubt, if any, on this aspect is laid
to rest by the decision in Angad Kal, 2009 ACJ 1411 (SC). It,
therefore, is evident that respondent No. 4 was not duly licensed
under section 3 (l) to drive the passenger autorickshaw (insured
vehicle) which he was found driving at the relevant time. Such
authorisation/ badge is essential and there certainly is an
infraction of the provision of section 3 (1) which insists that the
driver must have the requisite licence and badge issued to him if he
were to drive a transport vehicle. (New India Assurance Co. Ltd.
vs. Balakrishnan and other; 2012 ACJ 2441)
Ss.4-A & (3)(a) – Interest – From when
due – Whether commissioner was justified in awarding interest after
30 days of the accident – Held, “Yes”
There is no dispute that
the appellant had insured the lorry bearing registration No. KA
02-6818 and the said vehicle, which was driven by the respondent No.
1, having met with an accident on 24.5.2006 and respondent No. 1
sustaining employment injuries, which resulted in fracture of both
bones of right leg and amputation above knee.
Orthopedic Surgeon,
Victoria Hospital, Bangalore, has deposed that he has examined the
injured on 18.1.2008 and found that there is loss of right lower
limb above knee and the patient is walking with crutches and
tenderness at stump area. He has opined that there is physical
impairment of 80 per cent to the limb, which is permanent and he has
opined that being in the profession of a driver, the functional
disability is 100 per cent. He has stated that with an artificial
limb the patient can walk with difficulty.
In S. Suresh v. Oriental
Insurance Co. Ltd., 2010 ACJ 487 (SC), it has been held that:
“In our view, the ratio of the said
judgment is squarely applicable to the facts at hand. We are of the
opinion that on account of amputation of his right leg below knee,
he is rendered unfit for the work of a driver, which he was
performing at the time of the accident resulting in the said
disablement. Therefore, he has lost 100 per cent of his earning
capacity as a lorry driver, more so, when he is disqualified from
even getting a driving licence under the Motor Vehicles Act.”
The case on hand is not different from the one
decided by the Supreme Court in the decisions noticed supra.
The awarding of interest
being in respect of scheduled injury and there being no deposit of
compensation by the insured and the insurer within 30 days of the
accident, in view of the provisions under section 4-A(3) of the Act,
the Commissioner is justified in awarding interest on compensation
after 30 days of the accident. (New India Assurance Co. Ltd. vs.
N. Venkatesh and another; 2012 ACJ 2503)
Ss. 134, 187—Motor accident - Duty of
driver, by standers and passenger to help victim—Directions issued
to Central and State Govt.
It is the duty of every citizen
to help a motor accident victims, moreso when one is the cause of
the accident, or is involved in that particular accident. Situations
may be there, in a highly charged atmosphere or due to mob fury, the
driver may flee from the place, if there is a real danger to his
life, but he cannot shirk his responsibility of informing the police
or other authorized persons or good Samaritans forthwith, so that
human lives could be saved. Failure to do so, may lead to serious
consequences. Passengers who are in the vehicle which met with an
accident, have also a duty to arrange proper medical attention for
the victims. Further they have equal responsibility to inform the
police about the factum of the accident, in case of failure to do so
they are aiding the crime and screening the offender from legal
punishment. No legal obligation as such is cast on a bystander
either under the Motor Vehicles Act or any other legislation in
India. But greater responsibility is cast on them, because they are
people at the scene of the occurrence, and immediate and prompt
medical attention and care may help the victims and their dear ones
from unexpected catastrophe. Private hospitals and Government
hospitals, especially situated near the Highway, where traffic is
high, should be equipped with all facilities to meet with such
emergency situations. Ambulance with all medical facilities
including doctors and supporting staff should be ready, so that, in
case of emergency, prompt and immediate medical attention could be
given, Passing vehicles seldom stop to give a helping hand to take
the injured persons to the nearby hospital without waiting for the
ambulance to come. Proper attention by the passing vehicles will
also be of a great help and can save human lives. Many a times,
bystanders keep away from the scene, perhaps not to get themselves
involved in any legal or Court proceedings. Good Samaritans who come
forward to help must be treated with respect and be assured that
they will have to face no hassle and will be properly rewarded.
Supreme Court considering the need directed the Union of India and
State Governments to frame proper rules and regulations and conduct
awareness programmes so that the situation like this could to a
large extent, be properly attended to and, in that process, human
lives could be saved. (State Tr. P.S. Lodhi Colony, New Delhi vs.
Sanjeev Nanda; 2012 Cr.L.J. 4174 (SC)
S. 147 – Motor insurance – Tractor –
Trailer – Passenger risk – Liabilities of insurance company –
Consideration of
The specific case of the
claimants is that the respondent No. 1 engaged the deceased to
harvest and transport groundnut crop in his fields. The claimant No.
1, who was examined as PW 1, specifically deposed that the
respondent No. 1 engaged the deceased and other coolies to harvest
and transport the groundnut crop from his fields to their village
Diguvapalli and that while they were returning from the fields to
their village Diguvapalli in the trailer attached to the tractor
belonging to the respondent No. 1, the accident occurred. In the
cross-examination, he categorically deposed that on that day, the
deceased along with others worked in the fields of the respondent
No. 1. He denied the suggestion that 30 persons were travelling in
the tractor at the time of the accident. He has also denied the
suggestion that the deceased and others were travelling as
unauthorised passengers in the tractor and trailer. It has to be
seen that no suggestion was given to PW 1 that the deceased and
others were being carried for hire or reward.
Exh. B1, the copy of the
insurance policy, specifically provided limitations to use as
follows:
"The policy covers use of the vehicle for
any purpose other than (a) organised racing, (b) pace making, (c)
reliability trials, (d) speed testing, (e) use whilst drawing a
trailer except while towing (other than for reward) of anyone
disabled mechanically propelled vehicle and (f) use for carriage of
passengers for hire or reward."
Admittedly, the tractor and
trail was used for carrying coolies to harvest the groundnut crop.
Therefore, it cannot be said that those coolies were passengers
being carried for hire and reward. Therefore, it is clear that the
respondent No. 2, insurance company, cannot avoid its liability.
Therefore, I do not see any reason to interfere with the award
passed by the Tribunal and, hence, this appeal is liable to be
dismissed.
In the result, the civil
miscellaneous appeal is dismissed confirming the award, dated
4.10.2006, in O.P. No. 113 of 2005, passed by the Motor Accidents
Claims Tribunal-cum-Fifth Additional District Judge, Fast Track
Court, Anantapur. There shall be no order as to costs. (Oriental
Insurance Co. Ltd. vs. S. Rammanjaneyulu and others; 2012 ACJ 2355)
S.147 – Motor insurance – Passengers risk
– Liability of insurance Co. towards Passengers which were not
passengers in real sense but labour of owner of tractor in Tractor
Trailer – Consideration of
The respondent No. 1 who is the
owner of the tractor and trailer bearing No. AP 02-C 7919 and 7920
respectively engaged the deceased and others to harvest and
transport groundnut oil at their village Diguvapalli. While deceased
and others were returning in the tractor, the driver of the same
drove it in a rash and negligent manner as a result of which the
trailer turned turtle. Deceased and others sustained injuries and
the deceased succumbed to injuries. The claimants claimed a total
compensation of Rs.2,00,000 under sections 140 and 166 of the Motor
Vehicles Act, 1988 and rule 455 of the A.P. Motor Vehicles Rules,
1989, for the death of the deceased.
The Tribunal framed the
following issues for consideration:
(1) Whether the accident occurred on
30.10.2004 due to rash and negligent driving of tractor and trailer
bearing No. AP 02-C 7919 and 7920 by its driver and caused the death
of Saroja?
(2) Whether the petitioner is entitled to compensation and if
so, to what amount and from which respondent?
(3) To what relief?
Learned counsel for the
appellant relied on a decision reported in Divisional Manager, New
India Assurance Co. Ltd. v. Tumu Gurava Reddy, 1999 ACJ 1077 (AP),
wherein it is observed that the tractor intended to be used for
agricultural purpose is covered by insurance and when coolies were
transported with the tractor to work in the field of the owner of
the vehicle, it cannot be treated as carrying the passengers for
hire or reward and, therefore, there is no violation of the terms
and conditions of the policy in such situation.
The specific case of the
claimants is that the respondent No. 1 engaged the deceased to
harvest and transport groundnut crop in his fields. The claimant No.
1, who was examined as PW 1, specifically deposed that the
respondent No. 1 engaged the deceased and other coolies to harvest
and transport the groundnut crop from his fields to their village
Diguvapalli and that while they were returning from the fields to
their village Diguvapalli in the trailer attached to the tractor
belonging to the respondent No. 1, the accident occurred. In the
cross-examination, he categorically deposed that on that day, the
deceased along with others worked in the fields of the respondent
No. 1. He denied the suggestion that 30 persons were travelling in
the tractor at the time of the accident. He has also denied the
suggestion that the deceased and others were travelling as
unauthorised passengers in the tractor and trailer. It has to be
seen that no suggestion was given to PW 1 that the deceased and
others were being carried for hire or reward.
Admittedly, the tractor and
trail was 'ed for carrying coolies to have the groundnut crop.
Therefore, it cannot I said that those coolies were passenger being
carried for hire and reward. Therefore, it is clear that the
respondent No. 2, insurance company, cannot avoid its liability.
Therefore, I do not see any reason to interfere with the award
passed by the Tribunal and, hence, this appeal is liable to be
dismissed. (Oriental Insurance Co. Ltd. vs. S. Rammanjaneyulu and
others; 2012 ACJ 2355)
S.149(2)(a)(i)(c) – Motor insurance –
Permit – Violation of – Defences available to insurance Co. –
Whether violation of terms of Permit is a ground available to
insurance company to avoid liability – Held “No”
Learned counsel for the
respondent No. I-claimant has produced copy of the judgment in the
case of New India Assurance Co. Ltd. v. Mahadevamma, 2010 ACJ 1579
(Karnataka). The said appeal was filed by this very appellant
insurance company through this very same counsel, viz., Mr. O.
Mahesh, Advocate, Bangalore. The coordinate Bench of this court has
held in the said case that if the vehicle has got a contract
carriage permit and plied as stage carriage and thereby violated the
terms of permit, that may be a ground for the authorities under the
Act to take steps against the owner of the vehicle for cancellation
of the said permit, but the same cannot be a ground for the
insurance company to be absolved from its liability to pay
compensation to the third party in view of sections 147 and 149 of
the Motor Vehicles Act." The said M.P.A. No. 4647 of 2007 and the
present M.P.A. have arisen from out of the same accident.
Having regard to the above
nature of pleadings and evidence placed on record by the appellant
insurance company before the Claims Tribunal and also in view of the
decision of this court in the case referred to supra, I have no
alternative but to hold that the appellant insurance company is
liable to pay compensation to the respondent No. l-claimant.
(New India Assurance Co. Ltd., vs. M. Prabhu and another;
2012 ACJ 2391)
S. 149(2)(a)(ii) – Motor insurance –
Liabilities of insurance Co. – Pay and recover order – Validities of
The respondent Nos. 1 to 4 filed
a petition under sections 166 and 140 of the Motor Vehicles Act
against the appellant and the respondent Nos. 5 to 7 for grant of
compensation of Rs. 20,00,000 jointly and severally together with
interest there on. The said claim petition was filed as a result of
a road accident which took place on 12.2.2005 at 2.30 p.m. when
Bishamba the husband of the respondent No. 1 an the father of the
respondent Nos. 2 to 4 was crossing the main road at Lal Bahadi
Shastri Marg and was hit by a scooter bearing No. DL 7S-K 9664,
being driven by the respondent No. 5, who was coming from the side
of Sudharshan Chowk, rashly an negligently at a very high speed. A
case bearing F.I.R. No. 54 of 2005 was registered under sections
279/304-A, India Penal Code against the respondent No. 5 who was
then arrested and charge-sheeted for the aforesaid offences as well
as for the offence punishable under section 3 of the Motor Vehicles
Act, 1988 for not possessing a driving licence.
The learned Tribunal by its
award dated 27.5.2009 held that the deceased Bishambar had sustained
fatal injuries in the motor accident involving the offending vehicle
and accordingly the respondent Nos. 1 to 4/claimants in the claim
petition had become entitled to receive compensation of Rs.4,08,000
with interest thereon at the rate of 7 per cent per annum from date
of filing of the petition till the date of realization of the award
amount. As regards the apportionment of liability, the learned
Claims Tribunal, after sifting through the evidence, came to the
conclusion that the appellant Mukesh Kumar was the registered owner
of the offending vehicle and Om Prakash, respondent No. 6, was the
de facto owner of the offending vehicle on the date of the accident.
Learned Claims Tribunal noted that neither the appellant nor the
respondent No. 6 had disputed driving of the offending vehicle by
Umesh Kumar, respondent No. 5, however, neither of them had adduced
any evidence that they had ever engaged the said Umesh Kumar as
their driver to drive the offending Vehicle or allowed the offending
vehicle to be driven by him. The learned Claims Tribunal held that
material on record had established that respondent No. 5 did not
have a driving licence to drive the offending vehicle the date of
the accident, inasmuch as even during the pendency of the case
neither any copy of driving licence was filed proved on record.
Since the respond No. 5 was not having any driving lice: to drive
the offending vehicle on the date of the accident and the registered
owner as well as the de facto owner had failed to adduce any
evidence that either of them had allowed respondent No. 5 to drive
the offending vehicle after seeing his driving licence, the learned
Tribunal held that the insurance company could not be held liable to
make payment of the compensation awarded to the claimants.
Aggrieved by the aforesaid
findings of the Claims Tribunal, the appellant, who is undeniably
the registered owner of the offending vehicle, has assailed the same
by filing the present appeal, which is contested by all the
respondents albeit on different grounds.
Indubitably, in the present
case, the respondent No. 5 was driving the offending vehicle without
any driving licence at all and the insurance company cannot be
mu1cted with the liability to pay the compensation to the claimants.
At the same time, the respondent Nos. 1 to 4, i.e., the claimants
cannot be made to suffer for no fault of theirs and must be held
entitled to receive the compensation from the insurance company in
view of the fact that the vehicle was duly insured in the name of
its recorded owner on the date of the accident. It is accordingly
held that the insurance company shall pay the awarded amount to the
respondent Nos. 1 to 4 in the first instance and thereafter recover
the same from the appellant and the respondent No. 6, who have been
held equally liable for the tortious act of the respondent No. 5. No
doubt, both the appellant and the respondent No. 6 have denied that
the respondent No. 5 was their driver and the respondent No. 6 has
concocted a story that the vehicle purchased from the appellant was
returned to the appellant by him after he had driven the same for
one and a half months, but, as already discussed above, the said
version of the respondent No. 6 is unworthy of credence. Appellant
also failed in his duty of ensuring that the ownership of the
vehicle was transferred to the respondent No. 6 in the records of
the Registering Authority and for this lapse on his part, he too
must be held liable to pay the compensation amount.
Accordingly, the appeal is
allowed to the limited extent that the insurance company shall pay
the award amount in the first instance. The insurance company shall,
however, be at liberty thereafter to recover the same from the
appellant and the respondent No. 6, who are both held equally liable
to pay the award amount. (Mukesh Kumar vs. Kamlesh Devi and
others; 2012 ACJ 2269)
Ss.149(2)(a)(ii) & 149(2)(a)(i)(c) –
Motor insurance – Fake licence – Route permit – Liability of
Insurance Co. – Determination
On 30-11-2006, at about 3.30
p.m., vehicle No. JK 02-W 2178, driven rashly and negligently by
Praveen Singh, respondent No. 3 herein, hit Anshul Verma, respondent
No. 1, at Paloura, Mandi Chowk, Janipur, Jammu. The injured was
shifted to the Government Medical College, Jammu, and remained
hospitalised for a period of more than five months. The injured
through his father, Pawan Kumar, laid a claim petition under
sections 1661140 of Motor Vehicles Act before the Motor Accidents
Claims Tribunal, Jammu (in short ‘the Tribunal’). The respondent No.
1, in the claim petition, registered as File No. 196 Claim, sought
compensation of Rs.13,05,000 with interest at the rate of 12 per
cent per annum, on account of medical expenses, special diet,
conveyance, loss of academic year, loss of earning capacity, pain
and suffering and future medical expenses. The respondent No. 1 gave
break-up of compensation demanded on different counts in para 21 of
the claim petition.
The insurance company, the
present appellant, opposed the claim petition on the ground that
driver of offending vehicle, respondent No. 3, did not possess a
valid and effective driving licence at the time of accident. The
appellant also contested the claim as regards medical expenses
incurred by respondent No. 1 after the accident as also the period
of hospitalisation of the respondent No. 1 as pleaded in claim
petition. The appellant even disputed involvement of offending
vehicle in the accident.
The appellant insurance company,
on the other hand, did not adduce any evidence to prove that it was
not liable to pay any compensation because of fake driving licence
and vehicle having been plied at the time of accident against the
route permit. The appellant insurance company did not even adduce
any evidence to controvert the evidence adduced by respondent No. 1,
touching the extent of loss suffered by respondent No. 1 because of
accident or the amount of just compensation the respondent No. 1 was
entitled to claim. In view of failure on the part of appellant
insurance company to rebut the evidence adduced by the respondent
No. 1, learned Tribunal was left with no option but to place
reliance on the evidence so produced. There was no reason for the
Tribunal to disbelieve the statement of PWs Pawan Kumar, Vinod
Kumar, Makhan Singh and Dr. Som K. Chadgal, who, as is already
pointed out, in their statements gave elaborate and viewed
description of the vehicular accident in question, the pain and
discomfort suffered by respondent No. 1, loss of academic year, loss
of amenities of life. The appellant insurance company, after it
frittered away the opportunity given to it, to controvert and
contradict the evidence brought on file by respondent No. 1, cannot
be heard saying that the award was not based on any evidence. (Bajaj
Allianz General Insurance Co. Ltd. vs. Anshul Verma and others; 2012
ACJ 2404)
S. 149(2)(a)(ii) – Motor insurance – Fake
Driving License – Liability of Insurance company – Determination of
It is not the case of the
appellant insurance company that the driver had obtained a licence
to drive transport vehicle by any dubious method or by playing
fraud, but the argument is that the driver is not authorised to
drive an auto rickshaw or a ‘motorcab’ as it is allowed to carry
three passengers along with the driver.
To examine this argument, one
has to necessarily look into the definition of 'transport vehicle',
as is found in sub-section (47) of section 2 of the Act reading that
it means a public service vehicle and a goods carriage, an
educational institution bus or a private service vehicle. A ‘public
service vehicle’ is defined in sub-section (35) of section 2 of the
Act and it means “any motor vehicle used or adapted to be used for
carriage of passengers for hire or reward, and includes a maxicab, a
motorcab, contract carriage, and stage carriage.
A motorcab, in turn, is
defined in sub-section (25) of section 2 of the Act, which means any
motor vehicle constructed or adapted for carrying not more than six
passengers excluding the driver for hire or reward.
However, even according to
learned counsel for the appellant, the vehicle is one which is
constructed to carry three passengers with driver and, therefore, it
necessarily fits into the definition of ‘motorcab’. If a person is
authorised to drive a transport vehicle, it inevitably amounts that
the license also permits the holder of the licence to drive a
motorcab like the auto cab; that the licensee is also authorised to
drive a motorcab apart from the variety of other vehicles as noticed
above.
For our purpose, it is suffice
to hold that the licence held by the driver of the vehicle involved
in the present accident was one which enabled the driver to drive an
autorickshaw also, being a motorcab a vehicle constructed and
designed to carry three passengers, i.e., less than six passengers.
It is, therefore, the argument advanced by the learned counsel for
the appellant that the insurance company is not liable to ‘indemnify
the insured in terms of the defence it can take under section 149 of
the Act, is an untenable, illogical and frivolous argument. (Divisional
Manager, National Insurance Co. Ltd. vs. Prakash and another; 2012
ACJ 2656)
S.163A – Claim application –
Maintainablity of – Whether claim u/s. 163A for death of owner
ensured of the vehicle is maintainable – Held “No” – Would be
allowed compensation against insurance company
The respondents-claimants herein
filed their claim petition under section 163-A of the Act contending
that the husband of the respondent No. I while the father of
applicant Nos. 2 and 3, namely, Purushottam Patel, was driving his
own tractor on 9.5.2003 having the engine No. B.O. 8061 and chassis
No. SLO-301-SA- 35951, which collided with a bridge of a canal and
met with an accident, resultantly, he sustained the injuries and
consequently died. As per further averments, deceased was working as
Post Master in the Postal Department of Union of India and being
agriculturist, was also having income from agriculture. On receiving
information of such accident, a Crime No. 215 of 2003 for the
offence under section 304-A of Indian Penal Code was registered at
Police Out-post, Anjania, and corpse of the deceased was sent to
hospital for post-mortem, the same was carried out. Due to death of
said registered owner of the tractor, no charge-sheet was filed in
the matter. With these averments without showing any negligence on
the part of the deceased, the present claim is preferred on behalf
of respondents against the appellant insurer with whom the alleged
tractor was insured for the compensation of Rs. 17,00,000 with
interest at the rate of l2 per cent per annum.
In reply of the appellant, by
denying the facts stated in the claim petition regarding alleged
accident, in addition, it is stated that such tractor was driven by
Purushottam Patel, contrary to the terms of policy without having an
effective driving licence. Besides this, the claim is also objected
on the ground of tenability before the Tribunal under section 163-A
of the Act. It is stated that the deceased being insured and
registered owner of the vehicle as per terms of the insurance
policy, his legal representatives, the respondents, are not entitled
to get any award under the provisions of section 163-A of the Act
from the Tribunal.
I am of the considered view that
even after happening of the unfortunate incident in the family of
the respondents in which their predecessor Purushottam Patel, the
registered owner and the insured of the present offending tractor,
had died, they did not have any authority to file the claim petition
in the Motor Accidents Claims Tribunal under section 163- A of the
Act. Therefore, in such circumstances, the questions which were
raised on behalf of appellant on some merits of the facts, in the
lack of jurisdiction, could neither be considered by the Tribunal
nor the same could be considered by this court. At this stage,
respondents’ counsel Mr. Sapre prayed that on allowing this appeal
and setting aside the impugned award then in the available
circumstances instead of dismissing the claim petition of the
respondents along with their cross-objection filed in this appeal,
the same be directed to be returned to them by extending a liberty
to approach the appropriate forum under the Consumer Protection
Act,1986 or some other appropriate forum permissible under the law
to file their claim on the grounds stated in the claim petition, and
the cross-objection also with other available grounds.
In view of the aforesaid
discussions, the impugned award being passed by the Tribunal in the
lack of jurisdiction by entertaining the claim petition of the
respondents under section 163-A of the Act is held to be perverse
and pursuant to that, the same deserves to be set aside by allowing
this appeal. (National Insurance Co. Ltd. vs. Sunita and others;
2012 ACJ 2400)
Ss. 163-A & 166 – Claim application –
Conversion of claim application U/s. 166 to one U/s. 163-A –
Consideration of
Claimants filed two
separate claim applications under section 166 for death of two
persons – They received compensation through interim award for no
fault liability under section 140 – Claimants then got claim
applications converted with permission of the Tribunal as under
section 163-A and Tribunal allowed compensation in each case.
On perusal of both the claim
petitions in both the above appeals, there was no dispute that it is
the contention of the claimants-respondent Nos. 1 to 3 that the
income of the deceased was more than Rs. 40,000 per annum and,
obviously considering the said income of both the deceased, the
respondent Nos: 1 to 3 were not entitled to maintain a petition
under section l63-A of the said Act. This court in the judgment
reported in the case of New India Assurance Co. Ltd. v. Latabai 2009
AC] 1387 (Bombay), has held, paras 3, 4 and 5 thus:
(3) According to the assertion made in the
claim petition filed by the respondent Nos. 1 and 4, the age of the
decease at the time of accident was 36 years an he was drawing a
salary of Rs. 7,211 per month. The Apex Court has held that the
remedy under section 163-A of the said Act has been created for a
specified class of the society having income up to Rs. 40,000 per
year. The earlier view was that it is possible to notionally bring
down the income of the decease to Rs. 40,000 for bringing the claim
petition within the purview of section 163-A of the said Act.
However, now the law on this point is very clear and the remedy
under section 163-A is available only to those whose income is up to
Rs. 40,000 per year. The claim petition of the others will have to
be decided in accordance with section 166 of the Motor Vehicles Act,
1988.
Considering the said judgment of
this court there can be no dispute that the claim petition under
section 163-A of the said Act was not maintainable and, as such, the
impugned judgment and award are not sustainable in law.
With regard to the other contention raised by the
learned counsel appearing for the appellant, there is no dispute
that an award under section 140 of the said Act was passed in both
the above claim petitions and amounts were duly recovered by the
respondent Nos. 1 to 3. The learned single Judge of this court in
the case of New India Assurance Co. Ltd. (supra) has held that once
the amount under section 140 of the said Act was already received,
the petition under section 163-A of the said Act is not
maintainable. As such, the learned Tribunal was not justified to
proceed to decide the claim petition under section 163-A of the said
Act.
There is no dispute that originally the claim
petitions were filed under section 166 of the said Act which were
thereafter allowed to be treated as being under section 163-A of the
said Act. The accident is stated to have taken place somewhere in
the year 2000. As considerable time has elapsed from the date of the
accident, which resulted in the death of the wife as well as the
daughter of the original respondent No. 1, I find that in the
interest of justice, the impugned judgment and award deserves to be
quashed and set aside and the Tribunal be directed to dispose of
both the claim petitions as expeditiously as possible. The claim
petitions would have to be decided in terms of the provisions of
section 166 of the said Act. (National Insurance Co. Ltd. vs.
Bruno Baltazar Saldanha and others; 2012 ACJ 2253)
S. 163-A and Employees State Insurance
Act, S. 53 – Claim application – Maintainability of – Bar against
receiving compensation under any other law – When provision of S.
163-A of M.V. Act provides that there is no bar under any other law
then claim application filed under this section is maintainable
So far as first point is
concerned, we have to extract the provision of section 53 of the
E.S.I. Act and section 163-A of the Motor Vehicles Act, for
reference, which reads as follows:
“53. Bar against receiving or recovery of
compensation or damages under any other law.-An insured person or
his dependants shall not be entitled to receive or recover, whether
from the employer of the insured person or from any other person,
any compensation or damages under the Workmen's Compensation Act,
1923 (8 of 1923), or any other law for the time being in force or
otherwise, in respect of an employment injury sustained by the
insured person as an employee under this Act.
l63-A. Special provisions as to payment of
compensation on structured formula basis.-(l) Notwithstanding
anything contained in this Act or in any other law for the time
being in force or instrument having the force of law, the owner of
the motor vehicle or the authorised insurer shall be liable to pay
in the case of death or permanent disablement due to accident
arising out of the use of motor vehicle, compensation, as indicated
in the Second Schedule, to the legal heirs or the victim, as the
case may be."
From a reading of both
sections, it is clear that section 163-A of the Motor Vehicles Act
has been inserted by Act 54 of 1994 w.e.f. 14.11.1994, whereas
section 53 of the E.S.I. Act was substituted w.e.f. 28.1.1968. When
the provision of section 163-A of the Motor Vehicles Act says that
there is no bar under any other law, the petition filed under
section 163-A of the Motor Vehicles Act has to be held as
maintainable, since section 163-A has been introduced long after the
provisions of section 53 of the E.S.I. Act. (New India Assurance
Co. Ltd. vs. Vijay Balshiram Walunj and others; 2012 ACJ 2292)
Ss. 163-A & 167 and Workmen’s
Compensation Act - S. 3(5) – Option of forum – Maintainability of
claim application
The Court has observed that the
answer to the plea of the appellant that proper forum for the
claimants was under the Workmen's Compensation Act and not a claim
petition under the Motor Vehicles Act, is in the observations made
in Rita Devi, 2000 ACJ 801 (SC), by the Supreme Court which are as
under:
“(15) ... We do not see how the objects of
these two Acts, namely, the Motor Vehicles Act and the Workmen's
Compensation Act, are in any way different. In our opinion, the
relevant object of both the Acts is to provide compensation to the
victims of accidents. The only difference between the two enactments
is that so far as the Workmen's Compensation Act is concerned, it is
confined to workmen as defined under that Act while the relief
provided under Chapters X to XII of the Motor Vehicles Act is
available to all the victims of accidents involving a motor vehicle.
In this conclusion of ours we are supported by section 167 of the
Motor Vehicles Act, 1988 as per which provision, it is open to the
claimants either to proceed to claim compensation under Workmen's
Compensation Act or under the Motor Vehicles Act. A perusal of the
objects of the two enactments clearly establishes that both the
enactments are beneficial enactments operating in the same field,
hence judicially accepted interpretation of the word 'death' in
Workmen's Compensation Act is, in our opinion, applicable to the
interpretation of the word ‘death’ in the Motor Vehicles Act also.”
From the above discussion, The
Court did not found any merit in the instant appeal. (Oriental
Insurance Co. Ltd. vs. Phulo Devi and others; 2012 ACJ 2591)
S. 163-A – Fatal Accident – Quantum –
Deceased aged 40 years, truck driver and claimable were widow, sons
and daughter, total 8 – Future prospect – Consideration of
The court relying upon the
judgment of Rita Devi v. New India Assurance Co. Ltd., 2000 ACJ 801
(SC), the Claims Tribunal awarded compensation of Rs.5,17,480 to the
dependants/ claimants of the deceased Hari Chander. The said
compensation comprised Rs.4,92,480 on account of loss of dependency
of the claimants/dependants; Rs.15,000 on account of consortium and
Rs.10,000 on account of funeral expenses. Since there was no cogent
evidence led with regard to the income of the deceased, the Tribunal
took the prescribed minimum wages of a skilled worker as the basis
of calculation of compensation and taking note of the fact that
minimum wages would have increased to double considering the age of
the deceased as 40 years. The Tribunal assessed the average monthly
income of the deceased at Rs.4,275. Since the deceased had left
behind as many as 8 dependants, the Tribunal made deduction of 1/5th
from the average monthly income of the deceased for his personal and
living expenses. In this manner, the Tribunal calculated the loss of
financial dependency of the dependants to be Rs.3,420 per month or
Rs.41,040 per annum. He applied the multiplier of 12 and arrived at
a figure of Rs.4,92.480 as loss of financial dependency of the
dependants.
The insurance company assailed
the impugned award mainly on the ground that it was not a case of
death of deceased Hari Chander in a motor accident, but it was a
case of murder simpliciter by the person known to him and his
friends. It was submitted that the reliance upon the case of Rita
Devi, 2000 ACJ 801 (SC), by learned Tribunal was misplaced. The
impugned award was also challenged on the ground that the learned
Tribunal has erroneously taken the double of the minimum wages in
arriving at the average monthly income of the deceased.
Cross-objections were also filed
by the respondent Nos. 1 to 7 who were dependants of the deceased.
They averred that the Tribunal has wrongly applied the multiplier of
12 which according to them ought to be.
Adverting to cross-objections
filed by the claimants, it is again noted that admittedly the
deceased was aged 40 years and has left behind as many as 8
dependants. As per the judgment of Sarla Verma v. Delhi Transport
Corporation, 2009 ACJ 1298 (SC), the multiplier that was to be
applied was 15 and not 12 as applied by the Tribunal. Apparently,
Tribunal seems to have erred in applying the multiplier of 12.
However with regard to the claim of the compensation on account of
loss of love and affection and loss to estate, the petition being
under section 163-A of the Motor Vehicles Act, the claimants are not
entitled to any compensation under this head. Consequently, in view
of above, the claimants would be entitled to compensation to be
calculated by applying multiplier of 15. In this view of the matter,
the claimants are entitled to compensation of Rs.6,15,600 (Rs.3,420
x 12 x 15) on account of loss of dependency instead of Rs. 4,92,480
as awarded by the Tribunal. Thus, they would be entitled to enhanced
compensation of Rs.1,23,120 (Rs. 6,15,600 - Rs. 4,92,480) on this
count. Since respondent No. 8 has not claimed any enhanced
compensation, 40 per cent of the enhanced compensation shall be paid
to the claimant No. 1 who is the widow of the deceased and 10 per
cent each to claimant Nos. 2 to 7 who are sons and daughters of the
deceased. The shares of the minors would be kept in FDR in a
nationalised bank in their names till they attain the age of
majority. Insurance company who is the insurer is directed to pay
the enhanced compensation of Rs.1,23,120 within 30 days from today
and thereafter with interest at the rate of 7.5 per cent per annum.
(Oriental Insurance Co. Ltd. vs. Phulo Devi and others; 2012 ACJ
2591)
Ss. 166 &
169 – Maharashtra Motor Vehicles Rules, R.2 – Necessary party –
Powers and procedure of claim Tribunal – Whether responsibility lies
on claim Tribunal to ensure that notices are issued to all necessary
parties – Held, “Yes”, Tribunal can exercise this power at any stage
Perusal of the provisions of the
said Act and the said Rules of 1989 shows that a claim petition is
not at all a civil suit and neither the said Act nor the said Rules
of 1989 require a claimant to implied any person as a party opponent
to a claim petition. A duty is cast upon the Tribunal by virtue of
rule 260 of the said Rules of 1989 to issue the notices to the
concerned parties.
Thus, the law is that the
claimant while filing a claim application is under no obligation to
ensure that all necessary and proper parties are impleaded as
opponents to the claim petition. Considering the nature of the
proceedings, the responsibility is of the Tribunal to ensure that
the notices are issued to all the necessary parties. This power can
be exercised by the Tribunal at any stage of the proceedings.
It is a matter of common
knowledge that while defending a claim petition, diverse defences
are raised in the written statements by the owners and especially
the insurers. However, in many cases we find that all the defences
pleaded are not pressed into service at the time of final hearing.
Whenever a contention is pressed into service by any of the
opponents to the claim petition or the persons to whom the notice of
the claim petition is issued under rule 260 that the driver of a
vehicle is a necessary party, the Tribunal is under an obligation to
examine the said contention and if found correct, issue a notice to
the driver. It is obvious that if such contention is not pressed by
the party to whom the notice is served, the said party cannot be
allowed to raise the said contention for the first time in the
appeal. A claimant cannot be allowed to suffer as he is under no
obligation to implead any party as the opponent to the claim
petition. In such a case, if the driver is aggrieved by the adverse
finding recorded against him by the award of the Tribunal, he has a
remedy of preferring an appeal against the award after obtaining a
leave of the appellate court. If neither the owner nor the insurer
raises a contention before Tribunal regarding the non-joinder of the
driver, it is not open for them to contend in the appeal that driver
was a necessary party and that the award is vitiated because of
non-joinder of the driver. (New India Assurance Co. Ltd. vs.
Sitaram Devidayal Jaiswal and others; 2012 ACJ 2647)
S.166 – Claim petition – Non-joinder of
necessary party – Maintainabilities of
In the written statement the
appellant as opposite party in the claim petition demanded rejection
of the claim petition on ground of misjoinder of parties. PW 1, the
claimant, in her evidence deposed that on 24.1.1993 the vehicle in
which her husband was travelling met with an accident due to
collision with a tractor-trolley and received grievous injuries on
his person. The details of the said tractor-trolley have not been
furnished. In the claim petition the owner and the driver of the
said tractor-trolley have not been made parties. In motor accident
claim cases the owner and driver of all the vehicles involved in the
accident must be made parties. The owner and driver of the said
tractor-trolley have not been made parties in the claim petition.
The objection of the appellant/opposite party should have been
considered by the learned Tribunal but it was not done so. It was
necessary to do so to find out whether there was any case of rash
and negligent driving by the drivers of the accident vehicles or any
of the drivers either of the said vehicles and attributable to
contributory negligence or fault on the part of the driver of the
accident vehicles. There is a scope for remand of the case to the
learned Tribunal for a fresh trial. If the owner and driver of the
tractor-trolley involved in the accident, as disclosed by the
claimant in her claim petition' was made party or if the particulars
of the said tractor-trolley were furnished, probably the details of
the said vehicle could not be collected by the claimant, but it
would not be proper at this stage to pursue the matter for such
details and remand the case to the Tribunal.
On consideration of the evidence
on record, both oral and documentary, and upon hearing the learned
counsel for the parties as well as the principle laid down by the
Apex Court in the question involved in this case, I come to the
conclusion that the claim petition is not maintainable and the
appellant insurer has no liability to pay compensation to the
claimant for the death of her husband in the alleged motor accident
either as third party or as owner of the accident vehicle for want
of personal life and property risk covered by any policy or contract
on payment of additional premium as contemplated under the M.V. Act.
(Oriental Insurance Co. Ltd. vs. Homi Rai and another; 2012 ACJ
2258)
S. 166 – Mechanical failure of motor
vehicle – Witness to be relied on
In this case, Court has
held that the learned counsel for the appellant has submitted that
the vehicle turned turtle due to mechanical failure i.e.
non-functioning of the hydraulic system in a proper manner. To
appreciate the said submission, the Courts have carefully perused
the material brought on record and the analysis made by the courts
below. On a careful scrutiny of the same, the Court find that all
the courts have placed reliance on independent witnesses as well as
the testimony of PW 10, the Motor Vehicle Inspector. The manner in
which the accident occurred due to detachment of the trailer from
the tractor and the distance to which the tractor moved vividly
reveals, that the vehicle in question was driven recklessly at a
high speed. The plea of mechanical failure as put forth by the
accused was not even suggested to the Inspector.
What is sought to be
emphasised before the Court is that PW 3 has deposed that the
accident occurred due to mechanical failure. The trial court as well
as the High Court has not accepted the testimony of PW 3 as he is
only an agriculturist while the other technical experts including
the Motor Vehicle Inspector have deposed about the rash and
negligent driving. Analysing the evidence in entirety, the learned
trial Judge as well as the Appellate Judge has returned the finding
as regards the rash and negligent driving. The appellate court, on
further scrutiny, has found that the evidence on record clearly
shows that the driver has taken the vehicle to the left side of the
road and, in the process, he moved away from the main road to the
“kachcha” road and thereby the link between the tractor and the
trailer got detached. The High Court has opined that the accused has
not taken care to see that the speed of the tractor was within limit
so that the trailer could not be detached. In considered view of the
court, the analysis of the factual score in this regard cannot be
regarded to be perverse and, therefore, not liable to be unsettled
by the Court. (Guru Basavaraj alias Benne Settappa v. State of
Karnataka; (2012) 8 SCC 734)
S. 166(1)(c) – Claim application – Legal
representative – Second wife, mother and first wife of deceased
filed claim for his death – Mother expired and no divorce between
first wife and deceased – Consideration of
A claim petition for
compensation of Rs.1,50,000 was filed consequent to the death of the
deceased. Hanumantha Rao in a vehicular accident on 22.7.1998. The
appellant herein is the petitioner No. 1. The petitioner No. 2, who
is said to be the mother of the deceased, has died and the
petitioner No. 3 is the first wife of the deceased. The Tribunal
after considering the material on record granted compensation of
Rs.1,50,000. But, however, it refused to grant any part of the
compensation to the appellant as she is not the legally wedded wife.
Aggrieved by the said award, the present appeal is filed.
It is to be noted that the
petition has been filed by the first wife and the second wife
together before the Tribunal claiming compensation. They have no
conflict of interest. It is true that there may not be legal divorce
with the first wife as found by the Tribunal. But, however, while
considering a claim under section 166 (1) (c) of the Motor Vehicles
Act and considering the definition of legal representative, it is
useful to refer to the decision in Hafizun Begum v. Md. lkram Heque,
2007 (7) SC 467, wherein it was held that the definition of legal
representative has a wider meaning and one who suffers on account of
the death of a person due to a motor vehicle accident is a legal
representative and need not necessarily be a wife, husband, parent
and child. That being so, when admittedly, the appellant is said to
be living with the deceased and dependent on him and which was also
admitted by the first wife, there is no reason as to why she should
have been denied the right of apportionment. Furthermore, while
considering the claim under section 125 of the Criminal Procedure
Code, the Hon'ble Apex Court has held in Chanmuniya v. Virendra
Kumar Singh Kushwaha, (2011) 1 SCC 141, that even though ·there is
no valid marriage still a live-in relationship between a man and
woman entitles the wife for maintenance against the husband. That
being change of trend of law the award of the Tribunal in refusing
apportionment does not stand for scrutiny.
Accordingly the appeal is
allowed and a sum of Rs.75,000 is apportioned to the share of the
appellant herein and if such amount is not available whatever amount
is available as on date shall be apportioned to the share of the
appellant herein. No costs. (Minisetti Nageswaramma vs. V.
Ramaiah and others; 2012 ACJ 2586)
S.168 – Just compensation – Compensation
were then claimed – Consideration of
The provision of compensation
under the Motor Vehicles Act has been enacted, keeping in view the
welfare of the victim of the vehicular accident either injured or
dependants of the deceased who died in the vehicular accident. In
such premises, the court is bound to see first the welfare of the
claimants and that is the only paramount consideration in deciding
the claim matters under the Motor Vehicles Act. The intention of the
legislature to make such law is that the person concerned should get
the compensation according to his/her right and entitlement. In that
respect, the justice should not be lost in technicalities. Thus,
keeping in view to all such aspects and the guidelines laid down by
the Apex Court in the matter of he Sarla Verma, 2009 ACJ 1298 (SC),
the impugned claim is being decided in the aforesaid manner. So in
such premises, it is made clear that whatsoever amount is stated and
claimed by claimants in their petition does not come in the way to
award the claim of the appellants in accordance with law laid down
by the Apex Court in the matter of Sarla Verma (supra).
(Raj Kumari and others vs. Munalal Vishwakarma and others;
2012 ACJ 2367)
S. 168 - Compensation, award of - Minimum
notional income for determining the amount of compensation - Held,
should be Rs. 3000/- per month
This is an appeal preferred
under Section 173 of the Motor Vehicles Act Against the impugned
award dated 17.8.2011 passed by Motor Accident Claims Tribunal,
Sultanpur, in Claim Petition No. 376 of 2010.
In brief, on 11.5.2007, at about
4.30 a.m. when deceased shailendra Singh Travelling in a vehicle
Tata Sumo bearing No. 11 R 63/8798, a truck bearing No. U.P. 85
B-9793 driven rashly and negligently hit Tata Sumo in the Highway.
In consequence thereof, the deceased succumbed to injury at the
spot. The Tribunal had framed relevant issues with regard to
accident, insurance policy, driving licence etc. and arrived to the
conclusion that accident was caused by a truck bearing No. U.P. 85
B-9793 and it occurred due to rash and negligent deriving of the
truck driver. With regard to income, the tribunal had recorded,
finding that notional income should be taken into account while
awarding compensation. Deceased was aged about 24 years and
multiplier of 17 has been applied.
However, keeping in view the
judgment of Laxi Devi & others Vs. Mohd.; Tubar 2008(2) T AC 394
S.C., court are of the view that compensation should be enhanced and
notional income should be assessed @ Rs. 3000/- per month. One third
amount is deduced in lieu of personal expanses. The net income
should be Rs. 2000/- per month. Claimant is mother. Accordingly, in
view of settled proposition of law and keeping in view the age of
mother, multiplier of 13 is applied. Than total income should be Rs.
3,12,000/-. Rs. 4,500/- is added in lieu of funeral expanses and
loss of Estate. The total compensation come to Rs. 3,16,500/-.
Accordingly, appeal is allowed.
Impugned award dated 17.8.2011 is modified to the extent that
appellant shall be entitled for the compensation to the tune of Rs.
3,16,500/- along with interest @ 8 per cent. The respondent
Insurance Company is directed to deposit the entire compensation in
terms of award keeping in view the present judgment within a period
of two months. Thereafter, Tribunal shall realease the same to the
claimant in terms of modified award and keeping in view the present
judgment expeditiously, say within a period on next two months.
Appeal is allowed accordingly. (Sona Singh and others Vs. Pooran
and another; (2012 (30) LCD 2687) (All HC (LB)
S.171 – Interest – Tribunal has not
allowed interest without assigning, any reason – Held, “Not
justified”
Section 171 of the Motor
Vehicles Act contains the provisions for payment of interest.
Interest, after all, is the earning capacity of a person. When the
amount is kept withheld from the claimant, it results in his loss of
income capacity and it is nothing else but a recompense of the same
to have an overall workout.
Ideally, the amount of
compensation should be liquidated forthwith. But it is not so. Delay
punctuated by several reasons accentuates the woes and misery of the
claimants pushing them to further despair. Interest recompenses
their otherwise unavailable money, which is made available after
delay. While it is poor consolation for the recipient of a claim
amount to know the reason behind the delay in receiving the payment,
fact remains he or she sinks into a loss. At a loss to comprehend
with the situation at the post-stage of the tragedy/ injury and as
to why the money, which has been made payable but not being made
available.
Element of compensation is
germane in an order of interest, which is put at this stage to have
an overall workout of a just compensation.
Even though it is the discretion
of the Tribunal to exercise the power vested under section 171, the
same has to be done in a manner which is just and reasonable. It
cannot be either whimsical or capricious. In the instant case, no
valid reason for failure of the Tribunal to grant interest has been
assigned. We find that the appellant is a helpless poor widow with
three children none of whom earns; on the contrary, the eldest son
is disabled. These are factors, which cannot be rubbed out from
one's mind. In our view, a prima facie case for awarding interest
has been made out.
Accordingly, having regard to
the hapless plight of this poor widow, we would direct the award of
Rs.9,05,500 would carry an interest at the rate of 8 per cent per
annum to be payable from the date of filing of the claim petition
(29.8.2005) before the Tribunal (Swapna Roy and others vs. New
India Assurance Co. Ltd. and others; 2012 ACJ 2264)
S.173 and Limitation Act, S. 5 – Appeal
filed beyond time with application for condonation of delay and it
was not decided – Effect of – So long as application for condonation
of delay is not decided, the appeal cannot be said as pending
In this case court has agreed
that technically what he says may be correct but an appeal filed
beyond time along with delay condonation application means no appeal
is pending so long as the application for condonation of delay is
allowed. Therefore, the insurance company when said that no appeal
has been filed, it means that in the eyes of law, no appeal was
pending. So long as application under section 5 is not allowed, it
cannot be said that an appeal is pending. (Ghanshyam Gupta vs.
United India Insurance Co. Ltd. and others; 2012 ACJ 2289)
Ss. 173, 170, 149(2) – Motor Insurance –
Appeal – Maintainability of – No permission of the Tribunal was
obtained by insurance Co. U/s. 170 – Effect of – Under such
circumstances appeal would not be maintainable
In this case a Claim petition
was filed for payment of compensation under section 166 of Motor
Vehicles Act, 1988 to the extent of Rs.13,75,000. The Tribunal
framed five issues with regard to accident by the truck in question,
driving licence, insurance cover and the relief with regard to
payment of compensation.
Claimants-respondents have been
examined. The claimants-respondents also filed post-mortem report,
copy of charge-sheet and other documents with regard to criminal
case. On behalf of the defendants various documents were filed which
include insurance certificate, permit, national permit, chik report
of case Crime No. 361 of 1995 under sections 302/392, Indian Penal
Code. However, respondents did not lead any oral evidence.
The Tribunal, after considering
the evidence on record, awarded compensation to the tune of
Rs.2,09,800 along with interest.
While assailing the impugned
order, it has been submitted the learned counsel for the appellant,
that it was not a case of accidental death. Rather, the murder had
been committed by truck driver to commit robbery. Submission of the
learned counsel for the appellant is that since it is a murder case,
with intention to commit robbery, the claimants-respondents are not
entitled to any compensation.
On the other hand, learned
counsel for the claimants-respondents submits that though first
information report was lodged under section 302 read with section
392, Indian Penal Code but later on, it was converted to 304-A,
Indian Penal Code.
Apart from the above,
admittedly, no permission was obtained under section 170 of Motor
Vehicles Act, 1988. Hence the appeal seems to be not maintainable in
view of law laid down by the Hon'ble Supreme Court in the case of
National Insurance Co. Ltd. v. Nicolletta Rohtagi,2002 ACJ 1950
(SC). In view of the above on merit as well as no permission under
section 170, the appeal lacks merit.
In the case reported in Rita
Devi v. New India Assurance Co. Ltd., 2000 ACJ 801 (SC), their
Lordships of Hon'ble Supreme Court distinguished the simpliciter
murder occurred in an incident and the accidental murder. Hon'ble
Supreme Court held that if the dominant intention of an act of
felony is to kill any particular person, then such killing shall not
be an accidental murder but a murder simpliciter. But in case
originally murder was not intended and the same was caused in
furtherance of any other felonious act then such murder is an
accidental murder and the claimant shall be entitled for
compensation.
Appellant insurance company has
not led evidence to establish that the driver of the truck was
intending to kill the deceased. Burden was on the appellant to
establish by leading evidence but it seems to have not been done. Accordingly
the appeal is dismissed. (New India Assurance Co. Ltd. vs. Ranni
and others; 2012 ACJ 2624)
S.174 and General Clauses Act, S. 3(42) – Person – Who is
Section 174 clearly provides,
when an amount is due to any person under the award, if such a
person moves an application, the Claims Tribunal may issue a
certificate to the Collector for recovery of the said amount from
the person liable to pay.
The term ‘person’ used in
section 174 has been defined in General Clauses Act as under:
“‘Person’ shall include any company or
association or body of individuals, whether incorporated or not.”
It includes natural and legal
person both. In the award, the claimant was person entitled to
recover the amount from the opposite parties in the claim petition
in the manner it was directed by the Tribunal. It included the
insurance company as well as the petitioner. The insurance company
discharged its burden and paid the amount to the claimant.
Thereafter as per direction in the award of the Claims Tribunal, the
insurance company was entitled to recover the amount from
petitioner, i.e., owner of the vehicle. Therefore, the insurance
company’s application would also be covered by section 174 of 1988
Act. (Ghanshyam Gupta vs. United India Insurance Co. Ltd. and
others; 2012 ACJ 2289)
S. 185—Drunken driving—Proof
A person who is conversant in
driving a motor vehicle in the United States and European countries
may not be familiar with the road conditions in India. In India, the
driver is always on the defensive due to various reasons.
Pedestrains in India seldom use footpaths nor respect Zebra lines or
traffic lights, two wheelers, auto rickshaws, cyclists and street
vendors are common sights on Indian roads. A driver on Indian roads
should expect the unexpected always, therefore, the plea that the
accused has an American driving licence is not an answer for driving
in Indian roads unless it is recognized in India or that person is
having a driving licence issued by the Licensing Authority in India.
(State Tr. P.S. Lodhi Colony, New Delhi vs. Sanjeev Nanda; 2012
Cr.L.J. 4174 (SC)
Ss. 185, 203, 205—Drunken driving -
Breath analyser test—Applicability of—It is applicable only when
person is driving or attempting to drive vehicle and cannot be
applied when driven has fled away from place of occurrence
Cumulative effect of the
provisions of Ss. 203 and 205 indicate that the Breath Analyzer Test
has a different purpose and object. The language of the above
sections would indicate that the said test is required to be carried
out only when the person is driving or attempting to drive the
vehicle. The expression “while driving” and “attempting to drive” in
that above sections have a meaning “in praesenti”. In such
situations, the presence of alcohol in the blood has to be
determined instantly so that the offender may be prosecuted for
drunken driving. A Breath Analyzer Test is applied in such
situations so that the alcohol content in the blood can be detected.
The breach analyzer test could not be applied when the accused had
escaped from the scene of the accident. Plea that when procedure has
been laid to detect intoxication no finding that driver was drunk
could be reached without subjecting driver to such test is not
available to driver who had fled from the scene. (State Tr. P.S.
Lodhi Colony, New Delhi vs. Sanjeev Nanda; 2012 Cr.L.J. 4174) (SC)
Deduction – Family pension – Whether
family pension payable to family of the deceased would be deductible
while determining compensation – Held, “No”.
It is true that deceased was
getting Rs. 9,000 per month as pension while his wife is getting
Rs.12,000 as family pension after his death. Apparently, it appears
to be a gain to the wife after the death of her husband. However, on
a deeper thought, it appears that the family pension increased due
to implementation of report of 6th Pay Commission. Had the deceased
been alive at the time of implementation of the said Pay Commission
report, his pension would have been increased and would have been
much above the amount of family pension being received by his widow
after his death. The question, however, for decision in this case is
different. (Oriental Insurance Co. Ltd. vs. Lalanwati and others;
2012 ACJ 2425)
Fatal accident – Deceased a boy aged 15 –
Claimant’s mother and others – Tribunal awarded Rs. 1,66,000 but
Appellate court taken into consideration be status of family and
career prospects enhanced the award from Rs.1,66,000 to Rs. 2,50,000
– Validity of
The learned counsel for the
appellants, contends that Arun Soni was having a shop of jewelry and
his earnings were Rs.1,46,000 per annum as per the income tax
return, Exh. P22, which is filed in the earlier financial year by
the deceased and a subsequent income tax return, Exh. P23, for an
amount of Rs.1,25,000 up to the period of death was furnished by the
wife of the deceased. However, it is submitted that acceptance of
the income tax return of Rs. 1,25,000 submitted by the wife is
inappropriate, in fact, the earnings which was whole period of life
of Rs.1 ,46,000 may be accepted and after deducting 1/3rd and
applying the proper multiplier, compensation may be reasonably
awarded. In the case of death of Rishi Soni aged 15 years, it is
stated that looking to the brilliant career and the status of the
family, adequate compensation may be awarded.
In the case of Rishi Soni,
Tribunal awarded Rs.1,66,000 in total. In view of the judgment of
the Apex Court in the case R.K. Malik v. Kiran Pal, 2009 ACJ 1924
(SC) and in the facts and circumstances and looking to the status of
the family and his career, Rs.2,50,000 in lump sum is quantified and
awarded. If we deduct Rs.1,66,000, the amount so awarded by the
Tribunal, then net enhancement comes to Rs.84,000. Accordingly, in
the case of death of Arun Kumar Soni enhancement of Rs.3,65,383 is
directed while in the case of death of Rishi Soni enhancement of Rs.
84,000 is directed. The aforesaid amount shall carry interest at the
rate of 7.5 per cent per annum from the date of filing of the claim
petition till its realization. (Sadhna Soni and others vs. Dinesh
Singh Bhadoria and others; 2012 ACJ 2306)
Fatal accident – Principles of assessment
– Determination of income when it was not clear
Apellant filed claim petition before the Tnbunal on
29.8.2005 claiming a sum of Rs.9,05,500 as compensation. In her
claim petition, she has described the age of her husband as 57 years
having a business under the name and style 'M/s. A.S. Maintenance &
Construction Engineers' with a monthly income of Rs. 14,000. In her
claim petition, it has been stated that the deceased was both income
tax and sales tax payee. The bag containing the current documents
was with the deceased on the fateful period of time. Loss of the
same has been reported before the concerned police station.
In her deposition, she has also
claimed for compensation of Rs.9,05,500 and has stated that her
husband was 57 years of age having a monthly income of Rs.14,000.
She has proved the General Diary, Exh. 8, lodged by her pertaining
to loss of the necessary documents. She has proved the Trade Licence
(Exh. 10) issued in the name of her husband and her
cross-examination reveals that the deceased used to run his business
since before her marriage. It also shows that her elder son is
disabled and the other two sons do not earn.
The supplementary application,
which formed part of the Paper Book, contains papers relating to the
business carried on by the deceased. It also reflects that the
deceased was the owner of ‘M/s. A.S. Maintenance & Construction
Engineers’ and various business transactions in respect of his said
business. In our considered opinion, after having heard the
submissions of both Mr. Chakraborty and Mr. Pahari and on perusing
the evidence and other materials on record, the amount of award
passed by learned Tribunal was a result of complete
misinterpretation of the relevant legal position and in oblivion of
the evidence and other materials on record. Whereas, clearly it has
been borne out from the evidence of PW 1, widow of the deceased as
also from her claim petition that there was an income of Rs.14,000
per month, which could not be discredited in her cross-examination
and the supporting documents showing that the deceased was running a
business and had several business deals with various departments. It
was absolutely improper to have computed the income of the deceased
on notional basis. (Swapna Roy and others vs. New India Assurance
Co. Ltd. and others; 2012 ACJ 2264)
Fatal accident – Principles of assessment
– Future prospects – Income from business – Deceased brothers were
running jewelery shop along with their father as a partnership firm
– Income Tax show trend of increase of income every year – Whether
25% of their income may be added for future prospects while
computing loss of dependency of the claimants despite of fact they
did not have permanent job – Held, “Yes”
Applying the ratio of the
judgment of Apex Court in Sarla Yerma, 2009 ACJ 1298 (SC) and
keeping in view the finding recorded by the learned Tribunal, the
income tax returns of the deceased for the previous years and as per
the definite trend of increase of income every year, it must be held
that deceased, who were aged 24 and 22 years at the time of
accident, even if it is noted that they did not have a permanent
job, yet considering their age, it must be held that they would have
definitely progressed in their careers and their income would
certainly have been increased on that basis, at least 25 per cent of
their income should be added under the head of future prospects. (Renu
Kothari and others vs. Jogendra Singh and others; 2012 ACJ 2471)
Fatal accident – Principles of assessment
and choice of multiplier – Determination of
On 29.3.2005, at around 0100
hours, whire Hernatbhai, son of respondent Nos. land 2, was going on
his bicycle, at that time, the rickshaw (chhakdo) bearing No. GJ
10-T 548, driven by respondent No. 3 and insured with the appellant
insurance company, in a rash and negligent manner, knocked down
Hematbhai, as a result of which he sustained severe bodily injuries
and succumbed to the injuries. The legal heirs of the deceased child
filed claim petition, which came to be partly allowed, by way of the
impugned award.
The learned counsel for the
appellant submitted that the deceased was minor and income and the
multiplier taken by the Tribunal is on higher side and that Tribunal
has followed the structured formula as per Second Schedule to the
Act mechanically and such reliance has resulted into awarding higher
amount to the claimant.
As a result of hearing and
perusal of the record, there is no dispute that the deceased was 13
years old.
In view of the above it is very
clear that the Tribunal is not required to strictly apply the
multiplier except in a case of injuries and disabilities. Even in
injury or disability case multiplier of 18 has been specified. It is
further evident that in case of a minor application of multiplier of
20 is just and reasonable. (National Insurance Co. Ltd. vs.
Hemantbhai S. Solanki (deceased) by L.Rs.; 2012 ACJ 2501)
Fatal accident – Deceased bachelor, aged
18 years – Claimants parents – Award of compensation – Determination
of
Now, coming to the facts of the
case, in view of the decision of the Apex Court in the case of Sarla
Verma v. Delhi Transport Corporation, 2009 ACJ 1298 (SC), in a case
where the deceased is unmarried, 50 per cent of the amount of his
income will have to be deducted on account of personal expenditure.
In the present case, the age of the deceased was 18 years at the
time of the accident. As the accident was of November 2005, notional
income of the deceased has been rightly taken at Rs.2,500 per month.
Thus, the yearly income was taken at Rs.30,000. The 1/2 amount will
have to be deducted on account of personal expenditure of the
deceased. Therefore, the multiplicand will be Rs.15,000. On the
basis of the average age of the claimants/parents, multiplier of 14
has been rightly applied by the Tribunal. Adding usual amount of
Rs.10,000 towards funeral expenditure, etc., the total compensation
payable will be Rs.2,20,000. To that extent, the appeal will have to
be allowed.
The impugned judgment and award
is modified to the extent that the total compensation payable shall
e Rs.2,20,000 instead of Rs.2,90,000. (New India Assurance Co.
Ltd. vs. Sitaram Devidayal Jaiswal and others; 2012 ACJ 2647)
Injury – Principles of assessment –
Transport expenses – Injured claimed Rs.5,000 as transport expenses
but Tribunal allowed Rs.10,000 – Held “No” amount reduced to
Rs.5,000.
The Tribunal, while
determining just compensation, has taken into account case-Jaw on
the subject and made exercise in light of the principles laid down
in the reported cases referred to in the award. There is thus no
merit in the case set up by appellant insurance company to question
the award except with regard to assessment of compensation on
account of transportation charges. There is substance in the ground
urged in the appeal that the Tribunal ought not to have awarded
Rs.10,000 on account of transportation charges when the respondent
No. 1 had restricted the claim on said count to an amount of
Rs.5,000. Reliance placed by learned Tribunal while awarding an
amount of Rs.10,000 on account of transportation charges as against
the claim of Rs.5,000 on law laid down in Andhra Pradesh State Road
Trans. Corpn. v. M. Ramadevi, 2008 ACJ 930 (SC), is grossly
misplaced. Where the compensation claimed has a reference to the
actual expenditure incurred by the claimant, the Tribunal cannot, by
flight of imagination, work out a different amount, claiming that
the amount projected does not create any impediment in its way to
make an award over and above the amount claimed. Such a course may
be open, where the compensation is to be made on the basis of some
guesswork or hypothetical considerations, like in case of pain and
agony or loss of expectations of life but not in a case where the
claimant bases his claim on the actual expenditure incurred by him.
(Bajaj Allianz General Insurance Co. Ltd. vs. Anshul Verma and
others; 2012 ACJ 2404)
Quantum – Fatal accident – Principles of
assessment – Determination of income – Income tax returns – Whether
Tribunal was justified in not accepting income tax return filed
after death of the deceased as evidence of income of the deceased –
Held, “Yes”
If Tribunal was justified in not
accepting the income tax returns of the year 1996-97, because they
were filed after the death of deceased but there was no
justification for the Tribunal not to have accepted the income tax
returns for the previous assessment year 1995-96. Both the income
tax returns were in the own handwriting of both the deceased and
were duly acknowledged by the income tax authorities. Mere
non-production of the income tax assessment orders cannot be a
reason for proceeding on the assumption that the income would not
have been accepted by the income tax authorities. Tribunal in my
considered view, in not accepting the income of the deceased for the
previous assessment year 1995-96, was misled by the fact that they
have declared themselves as proprietor of the firm whereas, actually
Tribunal in award itself has stated that there were three partners
of the firm, i.e., two sons (deceased) and their father. Income tax
returns were filed separately by each one of them therefore; it
denotes their individual income received by them out of the income
of the firm itself. (Renu Kothari and others vs. Jogendra Singh
and others; 2012 ACJ 2471)
Quantum – Injury – Injured aged 30,
working partner to private firm earning Rs. 12,000 p.m. – Suffered
90 per cent permanent disablement – Injured has become a vegetative
and kept able by feeding through pipes – Appellant claimed
Rs.85,00,000 but Tribunal awarded Rs. 4,00,000 High Court awarded
Rs.16,76,480 and Supreme Court Rs. 34,38,747
The appellant filed a
petition through her husband, Deepak Singhal, under section 166 of
the Motor Vehicles Act, 1988 (for short, 'the Act') for award of
compensation to the tune of Rs.85,00,000 by alleging that the
accident was caused due to rash and negligent driving of the truck
owned by respondent No. 1 and driven by respondent No. 2. She
alleged that the truck dashed against Maruti Esteem car in which she
was traveling and as a result of the accident she suffered injuries
to her head, mouth. Right ear and other parts of the body and
consequentially she has become disabled from doing her routine work.
After recording evidence of the
parties, Claims Tribunal passed award dated 5.1.2007 and ordained
the respondents to pay total compensation of Rs. 4,00,000 with
interest at the rate of 6 per cent per annum/Tribunal relied upon
the statements of the appellant's husband Deepak Singhal, Pus hp
ender Garg, who was driving the car, and two other occupants,
namely, Prashant Agarwal and Renu, the charge-sheet filed in the
criminal case, the confession of the driver and the judgment of the
trial court and concluded that the accident took place due to rash
and negligent driving of the truck. The Tribunal then considered the
issue relating to quantum of compensation, referred to oral and
documentary evidence and concluded that it would be just to award
Rs.2,50,000 under the head of treatment, Rs.1,25,000 under the head
of permanent disability and Rs. 25,000 under the head of pain and
suffering.
The appellant challenged the
award of the Tribunal in Miscellaneous Appeal No. 870 of 2007.
During the pendency of the appeal, she filed IA No. 180 of 2010
under Order 41, rule 27 for bringing on record the bills to show
that she had spent Rs.5,94,013 on treatment and as on the date of
filing the application, Rs.7,76,480 had been spent on treatment.
The learned single Judge of
Madhya Pradesh High Court partly allowed the appeal and enhanced the
compensation by a sum of Rs.12,76,480 with interest at the rate of
7.5 per cent on the enhanced amount payable from the date of the
claim petition till realization?
1n light of the principles laid
down in the aforementioned cases, it is suffice to say that in
determining the quantum of compensation payable to the victims of
accident, who are disabled either permanently or temporarily,
efforts should always be made to award adequate compensation not
only for the physical injury and treatment, but also for the loss of
earnings and inability to lead a normal life and enjoy amenities,
which would have been enjoyed but for the disability caused due to
the accident. The amount awarded under the head of loss of earning
capacity are distinct and do not overlap with the amount awarded for
pain, suffering and loss of enjoyment of life or the amount awarded
for medical expenses.
As per the disability
certificate issued on 23.8.2006, the appellant had virtually become
vegetative and, therefore, she is not in a position to look after
herself what to say of discharging her functions as partner of
Tirupati Enterprises. Therefore, by applying the multiplier of 17,
the future loss of earnings would come to Rs. 3,67,200.
In the result, the appeal is
partly allowed, the impugned judgment is modified and it is held
that the appellant shall be entitled to compensation under different
heads of which the details are given below:
Head |
Values |
Calculation |
Total |
Medical
Treatment |
as awarded
by the High Court |
Rs. 7,76,480 |
Medical
expenses during the pendency of the appeal |
as awarded
by the High Court |
Rs. 50,000 |
Attendant
charges |
Rs. 2,000
per month for 25 year Rs. |
Rs.2,000x12x25 |
Rs. 6,00,000 |
Future
medical expenses (physiotherapy) |
Rs. 3,000
per month for 25 year |
Rs.
3,000x12x25 |
Rs.
9,00,000 |
Loss of
earnings during the period of treatment |
Rs. 2,000
monthly income for the period between date of accident
2.5.2004 and High Court order 18.5.2010 |
Rs.2,000x12x6 + Rs.2,000x16/30 |
Rs. 1,45,067 |
Loss of
future earnings on account of permanent disability |
taking
multiplier of 17 for age of 30 years, disability as 90 per
cent, annual income as Rs. 24,000 |
Rs.
24,000x17 x 90/100 |
Rs. 3,67,200 |
Physical and
mental pains |
|
|
Rs. 3,00,000 |
Loss of
amenities and loss of expectation of life |
|
|
Rs. 3,00,000 |
Total |
|
|
Rs.
34,38,747 |
(Kavita vs. Deepak and others; 2012 ACJ 2161)
Quantum – Injury – Principles of
assessment – Marriage prospects – Consideration of
The respondent No. 1 is sour that the Tribunal has not
awarded any compensation on account of loss of marriage and future
medical expenses. It is pleaded that the amount awarded thus does
not reflect the loss suffered by claimant and cannot be held to be
just compensation within the meaning of section 168, Motor Vehicles
Act. The grievance as regards failure on the part of Tribunal to
take into account the loss of marriage prospects is without any
substance and thus unsustainable. The respondent No. 1 has not in
his claim petition laid claim to compensation on account of loss of
marriage prospects. The Tribunal, obviously, was not expected to
look into the said aspect of the case and proceed ahead to determine
the compensation on account of loss not so projected by respondent
No. 1. (Bajaj Allianz General Insurance Co. Ltd. vs. Anshul Verma
and others; 2012 ACJ 2404)
BACK TO INDEX
Negotiable Instruments Act
Ss. 7 & 141—Drawer—Scope
Section 7 of the Act
defines “drawer” to mean the maker of a bill of exchange or a
cheque. An authorized signatory of a company becomes a drawer as he
has been authorized to do so in respect of the account maintained by
the company. (Aneeta Hada vs. Godfather Travels and Tours Pvt.
Ltd.; (2012) 3 SCC (Cri) 241)
S. 138—Compared with offence under S. 420
IPC—Held, not the same (See Constitution of India, Art 20(2)
In Kolla Veera Raghav Rao vs.
Gorantla Venkateswara Rao, (2011)2 SCC 703, is concerned. It has
been held therein that once the conviction u/s. 138 of the NI Act
has been recorded, the question of trying the same person u/s. 420
IPC or any other provisions of IPC or any other statute is not
permissible being hit by Article 20(2) of the Constitution and
Section 300(1) CrPC.
Admittedly, the appellant had
been tried earlier for the offences punishable under the provisions
of Section 138 of the NI Act and the case is sub judice before the
High Court. In the instant case, he is involved u/ss. 406/420 read
with Sec/ 114 IPC. In the prosecution u/s. 138 of the NI Act, the
mens rea i.e. fraudulent or dishonest intention at the time of
issuance of cheque is not required to be proved. However, in the
case under IPC involved herein, the issue of mens rea may be
relevant. The offence punishable u/s. 420 IPC is a serious one as
the sentence of 7 years can be imposed.
In the case under the NI Act,
there is a legal presumption that the cheque had been issued for
discharging the antecedent liability and that presumption can be
rebutted only by the person who draws the cheque. Such a requirement
is not there in the offences under IPC. In the case under the NI
Act, if a fine is imposed, it is to be adjusted to meet the legally
enforceable liability. There cannot be such a requirement in the
offences under IPC. The case under the NI Act can only be initiated
by filing a complaint. However, in a case under IPC such a condition
is not necessary. (Sangeetaben Mahendrabhai Patel vs. State of
Gujarat; (2012) 3 SCC (Cri) 445)
S. 138—Complaint under—Determination of
jurisdiction—Place of receipt of demand notice is determinative of
place at jurisdiction and not place at which notice was posted or
dispatched
The expression “giving notice in
writing” and “receipt of the said notice” in proviso (b), (c) to
Section 138 of the Act is to be interpreted as having reference to
the place where the notice is received by the drawer of the cheque
and he fails to make the payment within 15 days from the date of
such receipt. Such interpretation would assume importance where the
place of dispatch of notice and the place of receipt of notice are
two different jurisdictional areas, two different towns or cities.
In such a case, the ‘material event’ takes place at the place where
the demand notice is received by the drawer. It is the place of
receipt of notice that is determinative of the jurisdiction of the
court and not the place at which the notice was posted or
dispatched. (Imtiyaz Ahmad Bhat vs. FIL Industries Ltd.; 2012
Cr.L.J. 4091 (J & K)
S. 138—Dishonour of cheque—Notice of
demand has to be issued within 30 days beyond this limit complaint
would not be maintainable
Notice was however given beyond
30 days of knowledge of dishonor of cheque. So complaint is not
maintainable and impugned order of summoning and proceedings
pursuant thereto are liable to be quashed. (Dheeraj Jain vs.
State; 2012 Cr.L.J. (NOC) 496 (Del)
S. 138 – Dishonour of cheque – Separate
sentence for default in payment of compensation – Justifiability of
The respondent complainant
alleged that he had given Rs. 5,00,000 to the appellant-accused and
his wife by executing a promissory note (Ext. P-1) and in turn he
had been given a cheque. As the appellant-accused had failed to
repay the loan amount, a cheque was presented and it was dishonoured
for insufficiency of funds. After completion of trial, the
appellant-accused was sentenced. The trial court further directed
him to pay compensation to the respondent complainant and imposed
separate sentence for default of payment of compensation. The
Sessions Court confirmed the order of the trial court while the High
Court confirmed the sentence imposed on the appellant accused but it
set aside separate sentence for default of payment of compensation.
Allowing the appeal of the
complainant, the Supreme Court has held that the appellant-accused
did not lead any evidence to show that the promissory note (Ext.
P-1) was a got-up document nor did he take such stand anywhere in
his reply to the notice. The stand of the appellant-accused that he
had taken only Rs. 3,00,000 as loan was rejected in view of the
promissory note. The respondent complainant was running a chit fund
scheme and he had financed the appellant-accused several times
before. Entries made by the respondent complainant in the diary
(Ext. D-1) maintained by the appellant-accused related to
transactions pertaining to the chit fund scheme and not related to
Rs. 5,00,000 given by the respondent complainant. Moreover, the
respondent complainant admitted that it was his handwriting in the
dairy, Ext. D-1 and thus he turned out to be truthful witness. The
appellant-accused nowhere in his reply stated that only Rs. 90,101
was outstanding. Therefore, the claim of the appellant-accused that
only Rs. 90,101 was outstanding balance was rejected. The income tax
records summoned by the High Court indicate that returns filed by
the respondent complainant showed that a sum of Rs. 5,00,000 was due
from the appellant-accused.
As imposition of separate sentence would secure the very object of
payment of compensation, hence the conviction and sentence and
further imposition of sentence on the appellant-accused for default
in payment of compensation was justified. (R. Mohan v. A.K.
Vijaya Kumar; (2012) 8 SCC 721)
BACK TO INDEX
Payment of Gratuity Act
Ss. 2(A) (1) & 4(1)(b) – Gratuity - As
per revised pay - Payment of - If case of petitioner is that he was
in service till 1997 - And revised pay scale as per 5th
Central Pay Commission is applicable w.e.f. 1.1.1996 -Then there is
no point not to give him the arrear on the gratuity for service the
petitioner rendered with respondents - He is entitled for the
revised gratuity - Direction issued accordingly - To calculate and
pay gratuity with 8% interest
In section 4(1) (b) it is
prescribed that Gratuity shall be payable to an employee on the
termination of his employment after he has rendered continuous
service for not less than five years, on his retirement or
resignation.
If case of the petitioner is
that he was in service till 1997, and the revised Pay Scale as per 5th
Central Pay Commission is applicable w.e.f 1.1.1996, then there is
no point not to give him the arrear on the gratuity for the service
the petitioner rendered with the respondents.
Accordingly, in view of the
above discussion, respondents are directed to calculate the gratuity
of the arrear as applicable as per the Central 5th Pay
Commission and disbursed the same to the petitioner within four
weeks from today. (A.K. Mitra Vs. Union of India and others;
(2012 (135) FLR 115) (Delhi High Court)
Ss. 2 (e) and (f), 1 (b) (c), and s. 4 -
Claim of Gratuity - By a clerk in a temple on attaining the age of
superannuation - The question is no more res integra - Whole
temple comes under the purview of establishment - Therefore the
clerk working in a temple is entitled for payment of gratuity
The question in this appeal is
no more res integra in view of the Division Bench judgement
of Orissa High Court in the matter of Administrator Shree
Jaganath Temple, Puri v. Jagannath Padhi and others, 1992 (65) FLR
946, Wherein their Lordships have ruled that whole temple would
come under the purview of the establishment, therefore it was held
that the clerk or a manager who was working in a temple is entitled
for payment of gratuity.
(Management of Sri Venkararaman Temple and Sri Hale Mariyamma Tempe,
Kapu Vs. Dy. Labour Commissioner and the Appellate Authority under
Payment of Gratuity Act and others; (2012 (135) FLR 730) (Karnataka
High Court)
S. 2(s) – Wages - Ad hoc payment - Made
to appellants under interim order of Apex Court - Cannot be included
- For purpose of wages within meaning of section 2(s) of Act -
Cannot be treated as part of wages - Any amount of gratuity paid in
excess cannot be adjusted
Ad hoc payment made to the
appellants under interim order of the Apex Court dated 18.8.2000
cannot be included for the purposes of Wages within the meaning of
section 2(s) of the Payment of Gratuity Act, 1972, which was
apparently not paid to the appellants “in accordance with the terms
and conditions of their employment.”
Once the petition was dismissed,
the effect of dismissal was that interim order stood merged in the
final order and stood nullified. An interim order is granted to
protect the interest of a party approaching the Court till the same
is adjudicated finally. It is temporary in nature and it is made in
the meantime.
Amount paid to the appellants as
an ad hoc measure pursuant to an interim order dated 18.8.2000
cannot be treated to be part of “Wages” within the meaning of
section 2(s) of the Payment of Gratuity Act, 1972 as the interim
order of the Supreme Court merged in the final order, rejecting the
claim of these appellants.
There is no question of
adjustment/recovery of any amount of gratuity paid in excess to
these appellants. Keeping in view the chequered history of the case,
I feel it appropriate to direct the appellants not to recover any
amount, if already paid to these appellants in excess by taking into
account the ad hoc amount paid as “Wages”, while calculating
admissible gratuity. (Surendra Pathak and others Vs. Hindustan
Fertilizer Corpn. Ltd.; (2012 (135) FLR 819) (Patna High Court)
S.4—Applicability of—Payment of Gratuity
Act - Would not be applicable in Cooperative Societies Act
Having regards to the facts and
circumstances of the case, Court of the view that from the various
judgments what emerges is that the U.P. Cooperative Societies Act,
1965 is a self contained Act and it excludes the jurisdiction of all
other labour law such as Industrial Disputes Act and Payment of
Gratuity Act etc. (Brahmawarta Commercial Cooperative Bank Ltd.
vs. Presiding Officer, Industrial Tribunal III, U.P., Kanpur; 2012
(5) ALJ 626)
Ss. 4 &
2(e) – Gratuity - Payment of - Contractual employee - Regular
employees have worked for more than 240 days and were in continuous
employment - Such factual finding of controlling authority as
confirmed by appellate authority against the very same petitioner in
accordance with law - They are held employees of petitioner-society
and has rendered continuous service to become eligible for gratuity
under the Act
Since the order of the
controlling authority as confirmed by the appellate authority
against the very same petitioner is in accordance with the
provisions of the Act, I am of the view that the writ petition filed
challenging the order of the appellate authority is without any
factual and legal basis. Since the have clearly came to the
conclusion that the respondents 2,4 and 5 are employees of the
petitioner-society and rendered continuous service to become
eligible for gratuity under the Payment of Gratuity Act, this Court
is not inclined to interfere with the order of the first respondent
confirming the order of the second respondent. Finding no infirmity
or irregularity in the orders under challenge, the writ petition
stands dismissed. (Tiruchengode Agricultural Producers Co-op.
Marketing Society Vs. Appellate Authority under the Payment of
Gratuity Act and others; (2012 (135) FLR 270) (Mad HC)
S. 4 (5) –
Gratuity - Payment of - Determination of amount - Controlling
authority and appellate authority took the basic pay and number of
years of service in calculating the gratuity - Has not referred the
settlement between the Corporation and its employees - Gratuity
claimed in terms of settlement - Hence, the matter requires
reconsideration by the authority in view of settlement - Only such
portion of D.A. as per the settlement has to be added - Gratuity is
to be paid under the settlement and strictly in accordance with the
settlement
Neither the Controlling
Authority nor the Appellate Authority has referred to the settlement
between the Corporation and its employees. Admittedly, the payment
of gratuity claimed by the petitioner is not in terms of the
provisions of the Payment of Gratuity Act, but in terms of the
settlement. The contention of the learned Counsel for the petitioner
that the Dearness Allowance means, the Dearness Allowance paid last
to the employee. However, neither under the Payment of Gratuity Act
nor under the settlement, there is any provision made that the
entire Dearness Allowance to be added to the basic pay, but the
merger of Dearness Allowance was as per the decision of the State
Government taken from time to time. In such an event, if there is
already merger of Dearness Allowance, if in addition to the same
again the Dearness Allowance is added as on the date of retirement,
that would become double addition of Dearness Allowance. Only such
portion of the Dearness Allowance as per the settlement has to be
added and not the entire Dearness Allowance.
The matter requires
re-consideration by the Controlling Authority and the Controlling
Authority has to take into consideration the settlement arrived
between the Corporation and its employees in the matter of payment
of gratuity and based on the same, the gratuity has to be
determined. It is made clear that the employee, either he has to
choose the payment of gratuity under the provisions of the Payment
of Gratuity Act or has to choose under the settlement, but he cannot
choose best of both. Hence, if the gratuity is to be paid under the
settlement, it must be strictly in accordance with the settlement.
(B. Yoga Nandam Vs. Divisional Controller, K.S.R.T.C., Tumkur
Division and others; (2012 (135) FLR 416) (Karnataka High Court)
S. 7(7) -
Payment of Gratuity (Central) Rules, 1972 - Rules 11 (4) and 17 -
Difference of gratuity - Claimed and allowed by controlling
authority - Directed the corporation to pay the amount with interest
by order dated 12.3.2009 - Petitioner was not informed - Though it
was mandatory for authority to inform him - Petitioner applied for
certified copy of order on 25.5.2009 and same was furnished to it on
15.9.2009 - Hence the appeal filed by Corporation on 26.10.2009
which was well within period of limitation as per section 7(7) of
Act
When the limitation prescribed
under section 7(7) of the Payment of Gratuity Act, 1972 is examined,
it could clearly go to show that certified copy of the order dated
12.3.2009 was furnished to Corporation on 15.9.2009 and appeal in
question was required to be filed within 60 days from the date of
receipt of certified copy of the order i.e., on or before 14.11.2009
i.e., excluding copying delay (From 25.5.2009 to 15.9.2009).
Admittedly, in the instant case, appeal in question has been filed
on 26.10.2009, which was well within the period of limitation as
prescribed under section 7(7) of the Act.
Appellate Authority committed a
serious error in dismissing the appeal on the ground of delay
without going into merits and as such impugned order cannot be
sustained. (Karnataka State of Road Transport Corporation Vs.
Deputy Labour Commissioner and others; (2012 (135) FLR 48)
(Karnataka High Court)
Gratuity - Adjustment of amount due as
rent - Payment of Gratuity ordered by controlling authority - Which
is upheld by appellate authority - However petitioner employer is
allowed to adjust the penal rent due on employee, for period of
unauthorised occupation of his quarter from dues of employee’s
gratuity - Payment of Gratuity Act, 1972
In view of the aforesaid decision of the Hon’ble Supreme
Court of India, the petitioner-employer is allowed liberty to adjust
the penal rent due to the employee-respondent No. 3 for the period
of unauthorized occupation of his quarter from the outstanding post
retirement dues of the employee’s gratuity amount awarded by the
impugned order. (Project Officer Vs. Regional Labour Commissioner
(Central)-cum-Appellate Authority under Payment of Gratuity Act,
Dhanbad and others; (2012(135) FLR 667) (JharKhand High Court)
BACK TO INDEX
Practice and Procedure
Failure of Justice – Defining of –
Occasioned not only by wrong conviction but also by acquittal
The ‘failure of justice’ is an
extremely pliable or facile expression, which can be made to fit
into any situation in any case. The court must endeavour to find the
truth. There would be ‘failure of justice’; not only by unjust
conviction, but also by acquittal of the guilty, as a result of
unjust failure to produce requisite evidence. Of course, the rights
of the accused have to be kept in mind and also safeguarded. but
they should not be over emphasised to the extent of forgetting that
the victims also have rights. It has to be shown that the accused
has suffered some disability or detriment in respect of the
protections available to him under Indian Criminal Jurisprudence
‘Prejudice’, is incapable of being interpret in its generic sense
and applied to criminal jurisprudence. The plea of prejudice has to
be in relation to investigation or trial, and not with respect to
matters falling outside their scope. Once the accused is able to
show that there has been serious prejudice caused to him, with
respect to either of these aspects, and that the same has defeated
the rights available to him under jurisprudence. (Darbara Singh
vs. State of Punjab; 2012(6) Supreme 584)
Faliure of Justice – When Occurs?
The court must endeavour to find
the truth – There would be ‘failure of justice’ not only by unjust
conviction but also by acquittal of the guilty, as a result of
unjust failure to produce requisite evidence – Of course, the rights
of the accused have to be kept in mind and safeguarded but they
should not be over emphasised to the extent of forgetting that the
victims also have rights. (Bhimanna vs. State of Karnataka;
2012(6) Supreme 535)
Power of Attorney – Rights of power of
Attorney strictly governed by terms contained in need of power of
attorney
A power of attorney has to be strictly construed. In order to agree
to sell or effect a sale by a power of attorney, the power should
also expressly authorize the power to agent to execute the sale
agreement/sale deed i.e. (a) to present the document before the
Registrar; and (b) to admit execution of the document before the
Registrar. From the date the power of attorney is executed by the
principal in favour of the agent and by virtue of the terms, the
agent derives a right to use his name and all acts, deeds and things
done by him are subject to the limitations contained in the said
deed. The power-of-attorney holder executes a deed of conveyance in
exercise of the power granted under it and conveys title on behalf
of the grantor. The power of attorney, in the present case, only
authorises certain specified acts but not any act authorising
entering into an agreement of sale or to execute sale deed or admit
execution before the Registrar. (Church of Christ Charitable
Trust & Educational Charitable Society v. Ponniamman Educational
Trust; (2012) 8 SCC 706)
BACK TO INDEX
Prevention of Corruption Act
S. 7—Bribery—Proof of
On the merits of the case,
learned counsel made several submissions. It was submitted that
there is nothing on record to suggest that Syed Ahmed made any
demand for gratification or received and accepted any illegal
gratification.
This contention does not appeal
to us, particularly in view of the unshaken testimony of Nagaraja
(PW1) and the corroborative evidence of the eye-witness Sidheshwara
Swamy (PW2). This witness was near the window and just outside the
room occupied by Syed Ahmed. He refers to some conversation that
took place between Syed Ahmed and Nagaraja in a low tone and which
he could not hear. Thereafter, this witness specifically states that
Syed Ahmed asked Nagaraja if he had brought what he was told to
bring. Nagaraja replied in the affirmative and thereupon Nagaraja
gave the tainted currency noted to Syed Ahmed, which he accepted.
Thereafter, Syed Ahmed kept the tainted currency notes in a purse
which was then placed in the pocket of his trousers hung on the
wall. There is, therefore, a clear statement of Sidheshwara Swamy
(PW2), which has not been shaken in cross-examination, to the effect
that there was a demand for some gratification by Syed Ahmed from
Nagaraja and that Nagaraja paid some money to Syed Ahmed by way of
gratification. The ingredients of Section 13(1)(d) of the Act are
fulfilled in this case and have been proved beyond any doubt.
We agree with the High Court
that in view of Explanation (d) to Section 7 of the Act, the issue
whether Syed Ahmed could or could not deliver results (as it were)
becomes irrelevant in view of the acceptance of the testimony of
Nagaraja (PW1) and Sidheshwara Swamy (PW2).
The next two submissions of
learned counsel were to the effect that a currency note of Rs. 10/-
recovered from the wallet of Syed Ahmed and indeed the wallet also
were not sent for forensic examination to ascertain the presence of
phenolphthalein powder. Moreover, there is nothing on record to
indicate what eventually happened to that currency note.
We cannot see relevance of these
submissions. What we are concerned with is whether Syed Ahmed had
demanded illegal gratification from Nagaraja and whether he had
received and accepted that illegal gratification. The tainted
currency notes given to Syed Ahmed as illegal gratification are
material and not the untreated Rs. 10/- currency note or the wallet
in which all the currency notes were kept. These are minor issues
that have no real bearing on the controversy on hand.
On this basis, it is submitted
by learned counsel that there is a discrepancy in the testimony of
the witnesses with regard to the dress worn by Syed Ahmed when he
was sought to be trapped. it is submitted by learned counsel that
the discrepancy casts a doubt on the correctness of the events said
to have taken place on 28th June, 1993 and the benefit of
this must go to Syed Ahmed.
In our opinion, the discrepancy
with regard to the attire of Syed Ahmed the Rs. 10/- currency note
and the forensic examination of the wallet are rather minor matters.
What is a minor discrepancy? It was held that a discrepancy would be
minor if it did not affect the substratum of the prosecution’s case
or impact on the core issue. In such an event, the minor discrepancy
could be ignored.
It is while undertaking this
exercise that we find from the evidence of the witnesses that there
was sufficient evidence of Syed Ahmed demanding illegal
gratification from Nagaraja and receiving and accepting it when
given by him. On this basis, we find no reason to interfere with the
judgment and order under appeal. (Syed Ahmed vs. State of
Karnataka; 2012 Cr.L.J. 4017 (SC)
Ss. 7 & 13 – Plea of leniency or sympathy
by accused – Held, not tenable as in serious cases showing mercy may
send wrong signals
The complainant, a drug
store owner, admitted a lady whom he considered as his aunt for
surgery in the government hospital. Respondent 1-accused demanded Rs.
5000 as bribe from the complainant for treating her. The complainant
approached the Anti-Corruption Bureau and Respondent 1-accused was
trapped after recording on cassette his conversation with the
complainant pertaining to the demand of illegal gratification for
treatment of the lady. The High Court quashed the FIR on ground of
grudge between the complainant and Respondent 1-accused related to
irregularities committed by the complainant in his drug store and on
the strength of affidavits submitted by some witnesses supporting
Respondent 1-accused. (State of Rajasthan v. Rajkumar Agarwal;
(2012) 8 SCC 616)
Fraud - Negligence - Charges of various
irregularities of negligence in duty, causing loss to Bank -
Detailed enquiry held and found guilty - Criminal case also started
and acquitted by Magistrate - Urges to drop departmental case also -
Acquittal does not involve exoneration in department case
The conduct of the criminal
trial was in the hands of the prosecuting agency. Having registered
the First Information Report, the Bank had little or no role to
play, apart from rendering assistance to the prosecuting agencies.
In our opinion, the failure of the prosecution in producing the
necessary evidence before the trial court can not have any adverse
impact on the evidentiary value of the material produced by the Bank
before the Inquiry Officer in the departmental proceedings.
The findings recorded by the Enquiry Officer cannot be said to be
based on no evidence. In such circumstances, the appellant cannot
take any advantage of the findings of innocence recorded by the
criminal court. The ‘clean chit’ given by the learned Magistrate was
influenced by the failure of the prosecution to lead the necessary
evidence. No advantage of the same can be taken by the appellant in
the departmental proceedings.
Court has further observed as
below-
1.
Departmental and criminal proceedings can be simultaneous.
2.
In criminal case crime is important, in departmental case misconduct
is important.
3.
Acquittal in criminal case does not mean exoneration in departmental
case also.
(Avinash Sadashiv Bhosale (D) vs. Union of India; 2012(3) AISLJ 392)
BACK TO INDEX
Probation of Offenders Act
Ss. 3 and 4—Penal Code, S. 304-A—Benefit
of probation—Convict held for causing death by rash and negligent
act—It cannot be claimed as matter of right
The issue of award of probation
to the petitioner, it may be reiterated that due to rash and
negligent action of the petitioner an innocent person lost his life
without any fault on his part. There is no possible justification
for being casual and indifferent to the safety of public by such
drivers.
Further, from the perusal of the
impugned judgment of the Appellate Court, it can be seen that the
benefit of probation has not been extended to the petitioner
considering the seriousness of the offence committed by him. The
Apex Court in Commandant, 20th Battalion, ITB Police vs.
Sanjay Binjola, 2001 CrLJ 2349 has enunciated the cases where such
benefit should not be extended in the following words:
“9……. It is true that nobody can claim the benefit of
Sections 3 and 4 of the Probation of Offenders Act as a matter of
right and the court has to pass appropriate orders in the facts and
circumstances of each, case having regard to the nature of the
offence, its general effect on the society and the character of the
offender, etc. There are laws which specifically direct that the
provisions of Probation of Offenders Act shall not apply to the
persons convicted for those offences and there may be cases under
other laws as well which may not justify the exercise of the powers
of Probation of Offenders Act. Even apart from such exclusions the
courts should be wary of extending the benefit of Probation of
Offenders Act to offences relating to corruption, narcotic drugs,
etc. This Court has indicated in Dalbir Singh vs. State of Haryana,
2000 CrLJ 2283 that benefit of Probation of Offenders Act should not
normally be afforded in respect of the offences under Sections 304A
IPC when it involves rash or negligent driving. These are instances
for showing how the nature of the offence could dissuade the court
to give the benefit. (Meghna Singh vs. State; 2012 Cr.L.J. 4930
(Del.)
BACK TO INDEX
Protection
of Women from Domestic Violence Act
S. 17—Shared household
accommodation—Consideration of
Court has observed that Section
2(f) of the Act which defines the “domestic relationship” is
reproduced hereunder:-
“Domestic relationship means a
relationship between two persons who live or have, at any point of
time, lived together in a shared household, when they are related by
consanguinity, marriage, or through a relationship in the nature of
marriage, adoption or are family members living together as a joint
family.”
Section 17 of the Act which
provides right to reside in a share hold house is reproduced
hereunder:--
“Right to reside in a shared
household. (1) Notwithstanding anything contained in any other law
for the time being in force, every other law for the time being in
force, every woman in a domestic relationship shall have the right
to reside in the shared household, whether or not she has any right,
title or beneficial interest in the same.
(2) The aggrieved person
shall be evicted or excluded from the shared household or any part
of it by the respondent save in accordance with the procedure
established by law.”
From a perusal of the definition
of “domestic relationship” it is absolutely clear that the
revisionist No. 1 along with his wife opposite party No.2 as per
material available on record had lived together in the said house in
a joint family along with her husband revisionist No.2 after the
marriage and during festivals etc., hence in view of Section 17 of
the Act, the opposite party No.2 has a right to reside in a share
household which also belong to her husband, revisionist No.1 along
with his father revisionist No.2 who is a family member living
together as joint family.
In view of the above, Court of the opinion that the
lower appellate has allowed the appeal of opposite party No.2 with a
well reasoned order and has rightly set aside the order of Chief
Judicial Magistrate and directed that the opposite party No.2 be
allowed to live in the house in question being a joint family house
of revisionist No.2 of which her husband is also a member. (Nishant
Sharma vs. State of U.P.; 2012 (5) ALJ 571)
BACK TO INDEX
Provincial Small Causes Court Act
Section 23 - Return of plaint - To be
presented before regular Court - Question of title involved
Sustainability of
This writ petition is
directed against the order dated 11.12.2009 passed by Judge, Small
Cause Court, Ghaziabad in S.C.C. Suit No. 15 of 2004 returning the
plaint in purported exercise of power under Section 23 of Provincial
Small Cause Courts Act, 1887 expressing the view that in the present
case question of title has to be decided in order to grant relief to
plaintiff-landlord and, therefore, the suit must be filed in regular
court and should be not tried by Small Cause Court. The aforesaid
view of Trial Court has been confirmed by Revisional Court by means
of another impugned order dated 19.05.2011, whereby the Revisional
Court has rejected petitioner's Revision No. 5 of 2010.
Both the courts below found
that the tenant has come up with a case that he is not the tenant
but residing in the accommodation in question in his capacity as
owner and has adduced certain evidence also in support thereof. The
courts below after considering the evidence, prima facie have found
that issue of title is necessary to be decided before granting any
relief to petitioner-landlord and in that view of the matter the
plaint has been returned to petitioner so as to be presented in
appropriate court dealing with the matter on regular side.
Learned counsel for the petitioner submitted that it is not
obligatory on the part of Small Cause Court to return the plaint but
it can also decide the said issue incidentally. The proposition by
itself has no exception but where the Small Cause Court found that
issue of title is necessary to be decided, Section 23 contemplates
that such an issue be adjudicated by a regular court and not by
Small Cause Court. Hence where discretion has been exercised by
Small Cause Court by returning the plaint, in such a matter, so as
to enable the plaintiff to file suit in regular court, the same
cannot be faulted. (Shamshad Ahmad vs. Abdul Hameed; 2012(3) ARC
683 (All HC)
BACK TO INDEX
Registration Act
S. 17—As amended by S. 3 of Registration
and other related Laws Amendment Act (48 of 2001) S. 49 [As amended
by S. 6 of Registration and Other Related Laws Amendment Act (48 of
2001)]—Registration of agreement to sell immovable property for a
purpose of claiming right under S. 53-A of T.P.A.—Consideration of
By Section 10 of this amending
Act, Section 53-A of Transfer of Property Act has been amended as
follows:-
10. Amendment of Section 53-A of
Act 4 of 1882—In Section 53-A of the Transfer of Property Act, 1882,
the words “the contract, though required to be registered, has not
been registered, or,” shall be omitted.
Thus, w.e.f. 24.9.2001, even for
the purposes of claiming right under Section 53-A of the Transfer of
Property Act, an agreement to sell is required to be a registered.
Documents being unregistered are not admissible in evidence in view
of Section 49 of the Registration Act. As in this case, documents
were allegedly executed on 12.6.2009 and 15.11.2009, therefore, the
case laws relied upon by the counsel for the appellant are not
applicable in this case. (Subhash Verma vs. Narendra Kumar; 2012
(5) ALJ 686)
BACK TO INDEX
SC/ST (Prevention of
Atrocities) Act
Section 3 (1) (x) - Offence under - Essential ingredients
Following are the essential
ingredients to constitute the offence under S. 3 (I) (x) of SC/ST/
Act:
(1)
Accused is not a member of the Scheduled Caste or Scheduled Tribes.
(2)
The complainant is a member of Scheduled Caste or a Scheduled
Tribes.
(3)
The complainant was intentionally insulted or intimated by accused
with intent to humiliate him in a place within a public view. The
intentional act of insult or intimidation must be by uttering “cast
specific” words against the complainant.
Section 323, Cr.P.C.
thought empowers to the Magistrate to commit the case to the Court
of Session at any stage of inquiry into or trial, even it is not
exclusively triable by the Court of Session, if he is of the view
that the case ought to be tried by the Court of Session. The power
under Section 323, Cr.P.C. is discretionary, but the discretion has
to be exercised in the judicious manner not arbitrarily. The
Magistrate has to explain as to how it appears to him that the case
is one which ought to be tried by the Court of Session. The
reasoning must be based on material on record, not whimsical. (Prem
Das vs. State of U.P.; 2012(6) ALJ 730 (All HC)
S. 18 – CrPC, S. 438 –
Bar to grant of anticipatory bail
Section 18 of the SC/ST Act creates a bar for invoking Section 438
of the Code. However, a duty is cast on the Court to verify the
averments in the complaint and to find out whether an offence under
Section 3(1) of the SC/ST Act has been prima facie made out. In
other words, if there is a specific averment in the complaint,
namely, insult or intimidation with intent to humiliate by calling
with caste name, the accused persons are not entitled to
anticipatory bail. While considering the application for bail, scope
for appreciation of evidence and other material on record is
limited. Court is no expected to indulge in critical analysis of the
evidence on record. When a provision has been enacted in the Special
Act to protect the persons who belong to the Scheduled Castes and
the Scheduled Tribes and a bar has been imposed in granting bail
under Section 438 of the Code, the provision in the Special Act
cannot be easily brushed aside by elaborate discussion on the
evidence. (Vilas Pandurang Pawar v. State of Maharashtra; AIR
2012 SC 3316)
BACK TO INDEX
Service
Laws
Appointment -
Appointment in excess of advertise number of posts – Not permissible
Since
a select list of 27 persons was duly notified as per Rules of 2001,
after candidates from Sr. No. 1 to 17 were appointed as regular ADJs
on 15.12.2001 the select list came to an end because as per the
affidavit filed on behalf of the High Court though vacancies were
not mentioned in the advertisement only 13 posts of ADJs were
available on the date of advertisement i.e. on 23/05/ 2001 and 17
posts of ADJs were available on the date of recommendation i.e. on
20/10/ 2001. On the appointment of 17 regular ADJs, the selection
process for appointment of regular ADJs came to an end. The
unexhausted select list was wrongly used for appointment of 10 FTC
Judges. Again, out of list of unsuccessful candidates, 15 persons
were appointed as FTC Judges. Their names were not there in the
select list. The whole procedure was irregular.' Reliance placed by
the High Court in the impugned judgment of this Court in Rakhi Ray
v. High Court of Oelhi32 [(2010) 2 SCC 637] and Surinder
Singh v. State of Punjab [(1997) 8 SCC 488] is apt. It must be
mentioned at the cost of repetition that on 23/05/2001 when the
advertisement was issued, the posts for FTCs were not sanctioned.
Therefore, these posts were not even in contemplation. They cannot
be termed as vacancies contemplated or anticipated by the High
Court. Undoubtedly, the correspondence between the Law Ministry and
the High Court indicates that the High Court was informed about the
need for creation of FTCs and that Fast Track Court Scheme may be
brought into action in Jharkhand but, till the posts for FTCs were
sanctioned, there was no question of taking into account any
anticipated vacancies. When advertisement is for specific number of
posts, the State cannot appoint more than the number of posts
advertised. The select list gets exhausted when all the advertised
posts get filled. In Rakhi Ray and in a long line of other cases to
which reference need not be made, this Court has clarified that
appointments beyond the number of posts advertised would amount to
filling up future vacancies and the said course is impermissible in
law. There is no substance in the contention that appellants were
appointed under Rule 4(a) of the Rules of 2001 or that they can get
advantage of Rule 25 thereof. The Rules of 2001 and the regulations
which are meant for Jharkhand Superior Judicial Service do not apply
to ad hoc ADJs appointed under a scheme of temporary duration like
Fast Track Court scheme. The Rules of 2001 were not amended to make
them applicable to FTCs. The appellants were appointed in ex-cadre
post for a temporary period. This is clear from their appointment
letters. Therefore, their appointments were not under Rules of 200l.
Merely because they were made to take written examination and viva
voce their appointments cannot be termed as substantive appointments
nor can the nature of work done by them make their appointments
substantive. (Mahesh Chandra Verma v. State of Jharkhand & Ors.;
2012 (6) Supreme 647)
Compassionate Appointment - Constitution
of India, Article 16 – Claim for – Compassionate appointment cannot
be claimed as a matter of right
It is a settled legal
proposition that compassionate appointment cannot be claimed as a
matter of right. It is not simply another method of recruitment. A
claim to be appointed on such a ground, has to be considered in
accordance with the rules, regulations or administrative
instructions governing the subject, taking into consideration the
financial condition of the family of the deceased. Such a category
of employment itself, is an exception to the constitutional
provisions contained in Articles 14 and 16, which provide that there
can be no discrimination in public employment. The object of
compassionate employment is to enable the family of the deceased to
overcome the sudden financial crisis it finds itself facing, and not
to confer any status upon it. (State of Gujarat & Ors. v. Arvind
Kumar T. Tiwari & Anr.; 2012 (6) Supreme 705)
Court proceedings and
State Bank of India Officers Service Rule, 1992 – Appellant
prosecuted departmental proceedings could not have been continued
simultaneously - Appeal dismissed
Charges
against appellant in the criminal trial related to commission of
criminal offences under Sections 120(B), 420, 467, 468, 471 and 201
of IPC. In the departmental proceedings, basic charge was that
appellant whilst posted as a Branch Manager failed to discharge his
duties with utmost integrity, honesty, devotion and diligence to
ensure and protect the interest of the Bank and acted in a manner
unbecoming of a Bank Officer. It could not be said that because
appellant had been prosecuted, departmental proceedings could not
have been continued simultaneously. (Avinash Sadashiv Bhosale (D)
Thr. Lrs.; 2012(6) Supreme 48)
Constitution of
India – Art. 16 – Appointment Eligibility – Different from
qualification
The eligibility for the post may at times be misunderstood to mean
qualification. In fact, eligibility connotes the minimum criteria
for selection, that may be laid down by the executive
authority/legislature by way of any statute or rules, while the term
qualification, may connote any additional norms laid down by the
authorities. However, before a candidate is considered for a post or
even for admission to the institution, he must fulfil the
eligibility criteria. (State of Gujarat v. Arvind Kumar T.
Tiwari; AIR 2012 SC 3281)
Art. 16 - Irregularity
in pay fixation - Excess payment made to employees can be recovered,
recovery cannot be limited only to case of fraud or
misrepresentation
Any
amount paid/received without authority of law can always be
recovered barring few exceptions of extreme hardships but not as a
matter of right. In such situations law implies an obligation on the
payee to repay the money, otherwise it would amount to unjust,
enrichment. Recovery of excess paid public money cannot be limited
only to case of fraud or misrepresentation. Concept of fraud or
misrepresentation is not applicable to such situation. Excess
payment made to teachers/principals due to wrong pay fixation is
liable to be recovered. Moreso when there was clear stipulation in
the fixation order that in case of wrong/irregular fixation the
institution in which the employee works would be responsible for
recovery of over payment made. (Chandi Prasad Uniyal and Ors. V.
State of Uttarakhand and Ors.; 2012 (6) ALJ 208)
Art. 16 -
Compassionate Appointment civil death of Government Servant -
Applicability of U.P. Recruitment of Dependents of Government
Servant in Dying-in-Harness Rules on civil death - Held, Rules would
have overriding effect
In this
case, the appointment has not been offered to the petitioner for the
reason that in view of the Government order dated 9th
December, 1998 and the Circular dated 27th August, 2007
the dependents of those Government servants, whose death is presumed
to be civil death, under Section 108 of the Evidence Act would not
fall in the ambit of Rules of 1974
From the
bare reading of the aforesaid Rule, it transpires that if a
Government servant dies in harness, one of his/her dependent of his
family as given in Rule 2(c) shall be entitled to be considered for
employment subject to condition given in rule 5.
From
going through the aforesaid Rules now it is clear in view of the
lodging of an F.I.R. and filing of the final report, no information
about his where about for more than seven years and its acceptance
by the Court, further the father of the petitioner shall be treated
to be dead which in legal terminology would be mentioned as civil
death.
In this
rule, no exception has been carved out with respect to natural
death, death otherwise or civil death. The word used in the
aforesaid rules do not restrict that only on a particular type of
death, a person shall be offered appointment. The death may be due
to any reason, may be by illness, by an accident, in a natural
calamity or under general law (the Evidence Act). The government
Order and Circular have tried to draw a line of distinction in
between the civil death and the death falling under other
categories. Now the question would be as to whether this line of
distinction is a legal line drawn on the basis of some statutory
basis or it is merely an outcome of abrupt imagination of the State
authorities particularly in the circumstances when the Government
itself has issued a government order No.
Sa-3-G-I-88/ten-909-97extending the benefit for payment of post
retrial dues taking note of Section 108 of the Evidence Act.
From the
perusal of aforesaid Rule, it would transpire that this rule will
have overriding effect notwithstanding anything to the contrary
contained in any rules, regulations or orders in force.
It is
not in dispute that this rule has been framed under Article 309 of
the Constitution of India, therefore any Government Order which is
inconsistent with the provisions of these rules will be of no avail.
In view
of foregoing discussions, I am of the view that if a dependant of
deceased on account of civil death claims appointment under the
provisions of 1974, he/she is entitled to be considered under the
Rules and no distinction can be drawn in between the civil death or
death otherwise. (Km. Gyanti v. State of Uttar Pradesh and Ors.;
2012 (6) ALJ 203)
Art. 16 -
Compassionate appointment – Claim by widowed daughter-in-law –
Entitlement - It included widowed daughter-in-law under definition
of family
The
State Government has also now amended the U.P. Recruitment of
Dependants of Government Servant (Dying in Harness) Rules, 1974 and
has included a widowed daughter-in-law in the category of ‘family’.
The said amendment has also been published in the official gazette
dated 22-12-2011. The term, ‘family’ has been defined to include the
following members.
“(C) “Family” shall
include the following relations of the deceased Government servant:-
(i)
wife or husband;
(ii)
Sons/Adopted sons;
(iii)
Unmarried daughters, unmarried
adopted daughters, widowed daughters and widowed daughter-in-law;
(iv)
unmarried brothers, unmarried
sisters and widowed mother dependent on the deceased Government
servant, if the deceased Government servant who has been declared as
“dead” by the competent court;
(v)
aforementioned relations of
such missing Government servant who has been declared as “dead” by
the competent Court;
Provided that if a person belonging to any of the above mentioned
relations of the deceased Government servant is not available or is
found to be physically and mentally unfit and thus ineligible for
employment in government service, then only in such situation the
word “family” shall also include the grandsons and the unmarried
grand-daughters of the deceased Government servant dependent on him”
In
view of the above legal proposition as well as the amendment in the
Dying in Harness Rules, 1974 to include the widowed daughter-in-law
in the definition of the term ‘family’, this writ petition is
allowed and the impugned order dated 15-1-1998 passed by the Basic
Shiksha Adhikari, Fatehput is quashed. (Smt. Geeta Srivastava v.
State of U.P. and Ors.; 2012 (6) ALJ 8)
Departmental Enquiry - Purpose of
The purpose of departmental
enquiry and of prosecution are two different aspects. The criminal
prosecution is launched for an offence for violation of a duty, the
offender owes to the society or for breach of which law has provided
that the offender shall make satisfaction to the public. So crime is
an act of commission in violation of law or of omission of public
duty. The departmental enquiry is to maintain discipline in the
service and efficiency of public service. It would, therefore, be
expedient that the disciplinary proceedings are conducted and
completed as expeditiously as possible. It is not, therefore,
desirable to lay down any guidelines as inflexible rules in which
the departmental proceedings may or may not be stayed pending trial
in criminal case against the delinquent officer. Each case requires
to be considered in the backdrop of its own facts and circumstances.
(Avinash Sadashiv Bhosale (D) vs. Union of India; 2012(3) AISLJ
392)
Departmental/Criminal Case - Effect of
Exoneration - Question whether exoneration in departmental case will
ipso facto nullify the criminal prosecution - Held “No”
It is worth mentioning that decision in P.S. Rajya (supra) came up
for consideration before a two-Judge Bench of this Court earlier, in
the case of State v. M. Krishna Mohan, (2007) 14 SCC 667.
While answering an identical question i.e. whether a person
exonerated in the departmental enquiry would be entitled to
acquittal in the criminal proceeding on that ground alone, this
Court came to the conclusion that exoneration in departmental
proceeding ipso fact would not lead to the acquittal of the accused
in the criminal trial. This Court observed emphatically that
decision in P.S. Rajya (supra) was rendered on peculiar facts
obtaining therein. It is apt to reproduce paragraphs 32 and 33 of
the said judgment in this connection:
“32. Mr Nageswara Rao relied upon a decision of this Court in
P.S. Rajya v. State of Bihar [1996 (9) SCC 1]. The fact
situation obtaining therein was absolutely different. In that case,
in the vigilance report, the delinquent officer was shown to be
innocent. It was at that juncture, an application for quashing of
the proceedings was filed before the High Court under Section 482 of
the Code of Criminal Procedure which was allowed relying on State of
Haryana v. Bhajan Lal [1992 Supp. (1) SCC 335] holding: (P.S.
Rajya case [1996 (9) SCC 1, SCC p.9, para 23)]
“23. Even though all these facts including the report of the Central
Vigilance Commission were brought to the notice of the High Court,
unfortunately, the High Court took a view that the issues raised had
to be gone into in the final proceedings and the report of the
Central Vigilance Commission, exonerating the appellant of the same
charge in departmental proceedings would not conclude the criminal
case against the appellant. We have already held that for the
reasons given, on the peculiar facts of this case, the criminal
proceedings initiated against the appellant cannot be pursued.”
Ultimately this Court concluded as follows:
“33. The said decision was, therefore, rendered on the facts
obtaining therein and cannot be said to be an authority for the
proposition that exoneration in departmental proceeding ipso facto
would lead to a judgment of acquittal in a criminal trial.”
This point also fell for consideration before this Court in the case
of Supdt. of Police (C.B.I.) v. Deepak Chowdhary, (1995) 6 SCC
225, where quashing was sought for on two grounds and one of the
grounds urged was that the accused having been exonerated of the
charge in the departmental proceeding, the prosecution is fit to be
quashed. Said submission did not find favour with this Court and it
rejected the same in the following words:
“6. The second ground of departmental exoneration by the
disciplinary authority is also not relevant. What is necessary and
material is whether the facts collected during investigation would
constitute the offence for which the sanction has been sought for.”
Decision of this Court in the case of Central Bureau of
Investigation v. V.K. Bhutiani, (2009) 10 SCC 674, also throws
light on the question involved. In the said case, the accused
against whom the criminal proceeding and the departmental proceeding
were going on, was exonerated in the departmental proceeding by the
Central Vigilance Commission. The accused challenged his prosecution
before the High Court relying on the decision of this Court in the
case of P.S. Rajya (supra) and the High Court quashed the
prosecution. On a challenge by the Central Bureau of Investigation,
the decision was reversed and after relying on the decision in the
case of M. Krishna Mohan (supra), this Court came to the conclusion
that the quashing of the prosecution was illegal and while doing so
observed as follows:
“In our opinion, the reliance of the High Court on the ruling of
P.S. Rajya was totally uncalled for as the factual situation in that
case was entirely different than the one prevalent here in this
case.”
We are, therefore, of the opinion that the exoneration in the
departmental proceeding ipso facto would not result into the
quashing of the criminal prosecution. We hasten to add, however,
that if the prosecution against an accused is solely based on a
finding in a proceeding and that finding is set aside by the
superior authority in the hierarchy, the very foundation goes and
the prosecution may be quashed. But that principle will not apply in
the case of the departmental proceeding as the criminal trial and
the departmental proceeding are held by two different entities.
Further they are not in the same hierarchy. (State of N.C.T. of
Delhi vs. Ajay Kumar Tyagi (SC), AISLJ 2012(3) 420)
Seniority—Promotion—Career Advancement
Scheme—Promotion earned for higher scales on the basis of Career
Advancement Scheme (CAS) will have no bearing to inter se seniority
The
petitioner had been appointed as a Lecturer on 30.7. 1990 while the
third respondent had been appointed on 17.7.1990. They had been
respectively confirmed in their posts on 30.7. 1991 and 17.9.1993.
It appears that under a Career Advancement Scheme the petitioner had
been appointed as a Reader on 6.11.2007 while the third respondent
was appointed as Reader on 7.7.2007. They earned the further
promotions to the post of Professor under the Scheme. On account of
the fact that the third respondent had earned promotion under the
Career Advancement Scheme earlier she was also treated as senior to
the petitioner. Learned Senior counsel for the petitioner would
point out to the position brought through the rules which were
adopted under suppression of the earlier rules that the inter se
seniority of teachers was to be determined by the dates of
confirmation and if two or more persons were selected through the
same Selection Committee, the inter se seniority would be determined
on the merit indicated by the Selection Committee and if they were
tied in terms of seniority the person who was older in age was to be
treated as senior. The Executive Council while considering the
confirmation of cases to teachers permitted under the CAS, however,
resolved on 29.9.2005 that confirmation of teachers promoted under
CAS would be effective from the date of joining but while giving
effect to the above decision, it would in no way have any further
purpose to adversely affect the departmental inter se seniority of
teachers insofar as it related to the promotions and confirmations
under CAS.
The
attempt of the petitioner was therefore to contend that promotions
earned for higher scales on the basis of CAS will have no bearing to
inter se seniority or that will have to be governed by the
particular rule which was applicable viz., the inter se seniority
would be only on the basis of confirmation. The petitioner would
contend that in view of the fact that the petitioner had been
confirmed earlier to the respondent namely on '30.7.1991 against the
third respondent confirmation on 17.9. 1993, the placement of inter
se seniority must have been only on the basis of such confirmation.
Consequently the petitioner must be treated as senior in the post of
Professor. Learned Senior Counsel for the petitioner would also
refer to the decision of the Supreme Court in Dr. Rashmi Srivastava
Vs. Vikram University & Ors. JT 1995 (4) SC 51 : [1995(3) SLR 21
(SC)] that dealt with the effect of promotion under the Scheme as
only a personal promotion without any addition to the cadre and
without creating any vacancy in the lower cadre from which the
lecturer was promoted. Such promotion would not entitle to a person
be included in the seniority list of directly recruited Readers or
Professors. To apply this law here, it should be taken that the
petitioner and the third respondent shall rank in the respective
posts as a lecturer in such a way that the petitioner must be
treated as senior to the third respondent irrespective of the fact
that they earned promotions under the Career Advancement Scheme.
This may not have an immediate bearing to the post held by them as
Professor in the respective scales or responsibilities but the
position of seniority will be so prescribed that it leaves no doubt
that the petitioner will be treated as senior to the third
respondent in the post as Lecturer and the seniority list will be
maintained only on the basis of respective dates of regularization
and not from the date when a person was assigned to a higher post
under the Career Advancement Scheme.
(Dr. (Mrs.) Sangeeta
vs. Kurukshetra University; 2012 (2) SLR 673 (P&H HC)
BACK TO INDEX
Societies Registration Act
S. 25 (as amended
in U.P.) - Assistant Registrar has no jurisdiction to decide
disputes relating to Election of office bearers
Sri Shah Lal Chand Jain Bal Vikas Samiti, Chirgaon, Jhansi is a
society registered under the Societies Registration Act. Petitioners
before this court seek quashing of the order of the Assistant
Registrar dated 11.05.2012 where-under he has directed that the list
of Office Bearers submitted by Jinendra Kumar Jain respondent No. 5
be registered under Section 4 of the Societies Registration Act. The
order is challenged on the ground that the Assistant Registrar has
no jurisdiction to enter into the disputed issue pertaining to the
elections of the Office Bearers of the society. Bona fide disputes
are necessarily to be referred to the Prescribed Authority under
Section 25 (1) of the Societies Registration Act.
Learned counsel for the parties agreed that there was a bona fide
dispute and, therefore, the order passed by the Assistant Registrar
is without jurisdiction. (Devendra Kumar Ojha & Ors. V. State of
U.P. & Ors.; 2012 (6) ALJ 15)
BACK TO INDEX
Specific Relief Act
S. 6 –
Person illegally dispossessed of his immovable property - May file
suit for recovering the possession – Court required to determine
whether plaintiff was in possession and has been illegally
dispossessed – Such suit has to be filed within six months from date
of the dispossession - Proceeding under section 6 is a summary
proceeding
Section 6 of the Specific Relief
Act 1963 under which provision of law the suit in question was filed
by the plaintiff-respondent is pari-materia with section 9 of the
Act of 1877. A bare reading of the provisions contained in section 6
of the Act of 1963 would go to show that a person who has been
illegally dispossessed of his immovable property may himself or
through any, person claiming through him recover such possession by
filing a suit. In such a suit, the entitlement of the plaintiff to
recover possession of property from which he claims to have been
illegally dispossessed has to be adjudicated independently of the
question of title that may be set up by the defendant in such a
suit. In fact, in a suit under section .6, the only question that
has to be determined by the court is whether the plaintiff was in
possession of the disputed property and he had been illegally
dispossessed therefrom on any date within six months prior to the
filing of the suit. This is because section 6 (2) prescribes a
period of six months from the date of dispossession as the outer
limit for filing of a suit. As the question of possession and
illegal dispossession therefrom is the only issue germane to a suit
under section 6, a proceeding thereunder, naturally, would partake
the character of a summary proceeding against which the remedy by
way of appeal or review has been specifically excluded by
sub-section (3) of section 6. Sub-section (4) also makes it clear
that an unsuccessful litigant in a suit under section 6 would have
the option of filing a fresh suit for recovery of possession on the
basis of title, if any. In fact, the above view has found expression
in several pronouncements of this Court of which reference maybe
made to the decisions in Lallu Yashwant Singh (dead) by his LRs. v.
Rao Jagdish Singh and others, AIR 1968 SC 620; Krishna Ram Mahale
(D) by LRs v. Mrs. Shobha Venkat Rao, AIR 1989 SC 2097 and Sanjay
Kumar Pandey and others v. Gulabahar Sheikh and others, 2004(55) ALR
546. In fact, para 4 of this Court’s judgment, passed in Sanjay
Kumar Pandey (supra) may be a useful reiteration of the law in this
regard. The same is, therefore, extracted herein below:
“4. “A suit under section 6 of the Act is
often called a summary suit in as much as the enquiry in the suit
under section 6 is confined to finding out the possession and
dispossession within a period of six months from the date of the
institution of the suit ignoring the question of title. Sub-section
(3) of section 6 provides that no appeal shall lie from any order or
decree passed in any suit instituted under this section. No review
of any such order or decree is permitted. The remedy of a person
unsuccessful in a suit under section 6 of the Act is to file a
regular suit establishing his title to the suit property and in the
event of his succeeding he will be entitled to recover possession of
the property notwithstanding the adverse decision under section 6 of
the Act. Thus, as against a decision under section 6 of the Act, the
remedy of unsuccessful party is to file a suit based on title. The
remedy of filing a revision is available but that is only by way of
an exception; for the High Court would not interfere with a decree
or order under section 6 of the Act except on a case for
interference being made out within the well-settled parameters of
the exercise of revisional jurisdiction under section 115 of the
Code.”
(I.T.C. Limited vs. Adarsh Co-operative
Housing Society Ltd.; 2012 (117) RD 562)
S. 20 - CPC O. 32, R.
15 - Relief of specific performance of contract - Written statement
filed by vendee's wife seeking permission to act as his next friend,
who was alleged to be of unsound mind - Enquiry under O. 32, R. 15
not conducted - Judgment passed without appointing guardian for
vendee (if that was necessary) and without vendee himself filing any
written statement or participating in trial - Grant of relief of
specific performance, not proper
In the
light of the foregoing discussion, the judgment and decree passed by
the court below without conducting an enquiry under Order XXXII Rule
15 and without appointing a guardian for the defendant (if that was
necessary) and without the defendant himself filing any written
statement or participating in the trial, cannot be sustained and is,
accordingly, set aside. The court below shall dispose of the suit
afresh. The appellant/defendant shall file an application for formal
permission to appoint a guardian for him in the court below within
two weeks of the date fixed herein below for appearance of the
parties. The said application shall be disposed of in accordance
with law. In case the court below finds that the defendant is a
person of unsound mind, a guardian who does not have any interest
adverse to that of the defendant shall be appointed to represent the
defendant. Such guardian can be Ajithakumari, the wife of the
defendant, in case, she satisfies the requirements of law. In case,
the wife of the defendant or any other person is appointed as the
guardian of the defendant, it shall be open to the guardian to adopt
the written statement which was already filed in the case or file
any amendment thereto. If after enquiry, the court below comes to
the conclusion that the defendant is not a person of unsound mind,
in that case the defendant shall be permitted to file a written
statement within such time fixed by the court below. The suit shall,
thereafter, be disposed of in accordance with law after giving both
sides an opportunity of being heard. (Krishnankutty Madhavan v.
Veena M.G.; AIR 2012 Ker 166)
S. 38 - Suit for
declaration, cancellation of sale deed and permanent injunction -
Sale of undivided share in land in dispute was in joint tenancy of
plaintiff and defendant - It was undivided at time of execution of
sale deed - But only for that reason defendant would not be
disentitled to sell his undivided share of same – Sale-deed would
not be null and void
One of
the co-sharers of a joint property or a co-tenant without partition
of the same and without obtaining permission and consent of the
remaining co-sharer or co-tenant can transfer in any manner to any
other person, whole or part of his undivided share in such property
and at the most the possession of the same cannot be handed over to
the transferee unless the property is partitioned by metes and
bounds amicably and through mutual settlement or by a decree of the
Court. On such transfer, the transferee comes in the shoes of the
transferor and he becomes co-sharer or co-tenant in place of the
transferor having all rights of the transferor and he can demand
partition of the property but only by that reason the transfer
cannot become void and inoperative to the rights of the remaining
co-sharer or co-tenant. The transferee does not acquire title to any
defined share in the property and also does not acquire a right to
joint possession from the date of the transfer and his right is to
enforce for a partition.
It is
not necessary and it cannot be a condition precedent for executing a
sale deed by a co-sharer or a co-tenant to the extent of his share,
a prior division of the same may take place between the co-sharer.
As a matter of fact if a share in agriculture land is transferred by
a co-sharer, the buyer of such co-tenant or co-sharer steps into the
shoes of the seller and becomes a co-tenant.
In the
instant case from the perusal of the sale deed it was very clear
that the defendant had only sold his undivided one-half share of the
land in question and not any specified portion or share of it.
Merely because the respondent had sold his entire one-half share of
the land, it cannot be said that any specified portion or share of
it was sold.
Thus,
land in question being in the joint tenancy of the plaintiff and
defendant arid it being undivided at the time of execution of the
sale deed but only by that reason it cannot be held that defendant
was not entitled to sell his undivided share of the same and the
sale deed was null and void. (Ram Ratan v. Chandra Prakash &
Ors.; AIR 2012 Raj. 185)
BACK TO INDEX
Stamp Act
S. 56—Order determining deficiency in
stamp duty – Appeal against consideration of
The object of providing a
statutory appeal is to test the correctness of the order and that
too by a superior authority/Court.
Officer who has passed the
order as inferior Court or authority cannot legally test correctness
of his own decision while exercising the powers of the superior
Court in appeal, otherwise it would make the appeal illusory and
nugatory frustrating the purpose of its filing.
The appeal is conceptually
different from a review. The review is reconsideration of the
subject by the same Judge to cure an error which may be apparent on
record while an appeal is re-hearing of the matter by a superior
Court/authority to test correctness of the decision of the lower
Court/authority. Allowing the appeal to be heard by the same officer
who has passed the basic order would tantamount to reducing the
appellate jurisdiction into that of review. Therefore, also no
person should normally hear the appeal against his own order.
One of the fundamental
principles of natural justice is that no man can be a Judge in his
own cause. The said principle would also be attracted in a case
where a Judge may not be a party to the cause of action in any
manner aforesaid but has delivered the order/judgment which is to be
tested in appeal.
Thus, deciding appeal in
capacity as Commissioner against one’s own order passed as an
inferior authority/Collector, held not proper being against settled
principles of natural justice. (Mohd. Chand Abdul Aziz vs. State
of U.P.; 2012 (5) ALJ 600)
Sch. 1-B, Art. 35 Deed of Tah-e-Bazaar—Lease
or licence—Stamp duty payable—Consideration of
In the present case, the stand
of the respondents in the counter-affidavit is that the petitioner
had signed the bid-sheet and he has completed the one year contract
of the year 1996-97 and as such order of the Controlling Authority
is justified and does not warrant any interference.
In the similar facts, in the
case of Indrabhan Singh vs. State of U.P. and others, 2007(3) 2091
(sc), the learned Single Judge has treated the bid-sheet of the
auction of Tehbazari rights for collection of stand fees was of
lease and has followed the judgment of the Full Bench of Jagdish
Lala case. It will be useful to reproduce the reasoning given by
this Court;
“The question that arose in that
petition was whether the bid-sheet when it was signed by the highest
bidders amounted to an agreement creating right or liability. It was
held by the Full Bench that the bid-sheet neither creates nor
purports to create any right or liability and it was in consequence
held that it ails to satisfy the requirements of an instrument much
less an instrument.”
The facts of the present
case are identical with the case of Indrabhan Singh.
From the aforesaid, what emerges is that a contract which has been
awarded in pursuance of the auction has the complexion of a lease
and therefore, stamp duty is payable under Article 35 Schedule 1-B
of the Stamp Act. (Zaheer Alam vs. Commissioner, Saharanpur; 2012
(5) ALJ 798)
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Succession Act
S. 372 - Hindu
Marriage Act (25 of 1955), Ss. 5(i), 24-28 - Grant of Succession
Certificate - Unchastity of widow is no bar to inherit her deceased
husband's estate - Grant of succession certificate proper
Under
the old Hindu Law, a widow who is unchaste at the time of her
husband's death was not entitled to inherit his estate. But Section
28 of the Hindu Marriage Act, 1956 discards almost all the grounds,
which imposed exclusion from inheritance. It rules out
disqualification on any ground whatsoever accepting those expressly
recognized by any provisions of the Act. Unchastity of a widow is
not a disqualification under the Act of 1956. The unchastity of a
wife is certainly a ground for divorce but in the absence of a,
decree of divorce, cannot be pressed into service to disinherit even
an unchaste wife from claiming her rights as a widow.
A decree of divorce can only be granted by a Court of competent
jurisdiction, exercising powers under the Hindu Marriage Act. The
mere fact that a woman is abandoned by her husband or that a woman
after being abandoned by her husband lives with another man, would
not raise an inference that their marriage stands dissolved and,
therefore, in the absence of proof of divorce between appellant and
deceased, appellant's right to inherit the property of her husband
cannot be denied. (Ranjana Kamble v. Smt. Ranjana alias Vimaltai
and others; AIR 2012 Chh 167)
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Tort
Negligence – Res ipsa loquitur –
Contributory negligence - Death resulted from fall in open manhole
an public road – Whether defence of contributory negligence of the
deceased is available to the authorities – Held, “No”
If there had been an open manhole and a death had
resulted, it was evidently on account of negligent maintenance of
the Municipal Corporation that the death must have come about. It
simply answers res ipsa loquitur situation that requires no further
probe on finding who is culpable. Learned counsel for the State
argues that deceased herself was guilty of contributory negligence.
I reject the plea as untenable for an open manhole is indeed a death
trap and the State ought to own responsibility for the consequences
of not properly taking care to ensure that no untoward incident
could take place by an unwary member of the public falling into the
hole in an unguarded moment. Roads are meant for use by the public
and if a user comes to harm, the State shall be directly responsible
for the consequences of such harm. (Anand Sagar Ahluwalia &
others vs. State of Punjab & others; 2012 ACJ 2486)
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Transfer of Property Act
S. 41 - Transfer must
be for consideration without misrepresentation or fraud by person
having requisite power to transfer and it must be in good faith
The general
rule of law is un doubted, that no one can transfer a better title
than he himself possesses; Nemo dat quod non habet. However, this
Rule has certain exceptions and one of them is, that the transfer
must be in good faith for value, and there must be no
misrepresentation or fraud, which would render the transactions as
void and also that the property is purchased after taking reasonable
care to ascertain that the transferee has the requisite power to
transfer the said land, and finally that, the parties have acted in
good faith, as is required under Section 41 of the Transfer-of
Property Act, 1882. (Gian Singh vs. State of Punjab & Another;
2012(6) Supreme 1)
Ss. 105, 52 –
Distinction between lease and licence – Lease creates right in
favour of lessee in respect of demised premises, licence on other
hand makes action of licensee lawful which without licence would
have been unlawful
Consideration of the rival submissions the principle question to be
considered is as to whether the document of allotment of land dated
6.5.1994 was in any way a lease or a license. As far as a lease is
concerned, Section 105 of the Transfer of Property Act, 1882,
defines it as follows:
"105.
Lease defined.- A lease of immoveable property is a transfer of a
right to enjoy such property, made for a certain time, express or
implied, or in perpetuity, in consideration of a price paid or
promised, or of money, a share of crops, service or any other thing
of value, to be rendered periodically or on specified occasions to
the transferor by the transferee, who accepts the transfer on such
terms.
Lessor, lessee, premium
and rent defined.-
The
transferor is called the lessor, the transferee is called the
lessee, the price is called the premium, and the money, share,
service or other thing to be so rendered is called the rent."
As far
as a license is concerned, the same is defined under Section 52 of
the Indian Easements Act, 1882, as follows:-
"52. "License" defined.-
Where one person grants to another, or to a definite number of other
persons, a right to do, in or upon the immovable property of the
grantor, something which would, in the absence of such right, be
unlawful, and such right does not amount to an easement or an
interest in the property, the right is called a license."
From
these two definitions it is clear that a lease is not a mere
contract but envisages and transfers an interest in the demised
property creating a right in favour of the lessee in rem. As against
that a licence only makes an action lawful which without it would be
unlawful, but does not transfer any interest in favour of the
licensee in respect of the property. (Mangal Amusement Park (P)
Ltd. & Anr. v. State of Madhya Pradesh & Ors.; AIR 2012 SC 3325)
Ss. 113, 106—Notice to quit—Waiver—Mere
acceptance of rent would not by itself constitute an intention to
treat lease as subsisting
Mere acceptance of rent
would not b y itself constitute an act of the nature as contemplated
by Section 113 Transfer of Property Act showing an intention to
treat the lease as subsisting. The fact remains that even after
accepting the rent tendered, the landlord did file a suit for
eviction, and even while prosecuting the suit accepted rent which
was being paid to him by the tenant, it cannot, therefore, be said
that by accepting rent, he intended to waive the notice to quit and
to treat the lease as subsisting. The respondent-landlord was
absolutely within its rights to receive the rent. Mere acceptance of
rent before the expiry of the notice issued under Section 106 of the
T.P. Act will not amount to waiver of notice. (Sanjiv vs. Mahabir
Digambar Jain Mandir; 2012 (5) ALJ 429)
Ss. 114, 111 (g)—Relief against forfeiture—Entitlement to
In this case, court has
observed that the petitioner purchased the disputed shop by
registered sale deed dated 3.6.2004. The petitioner sent a
registered notice under Section 106 of Transfer of Property Act,
1882 (in short “T.P. Act”) which was duly served upon the
tenant-opposite party and also replied by him. Thereafter, the
petitioner filed a S.C.C. Suit No. 8 of 2005 for arrears of rent and
ejectment. The respondent-tenant filed a written statement admitting
the fact that the petitioner is a landlord and the rent is Rs. 150/-
per month.
The Trial Court by order dated
26.10.2009 decreed the suit for arrears of rent holding that the
U.P. Act No. XIII of 1972 (in short “the Act”) is not applicable to
the property in dispute. It was also held that the respondent-tenant
committed default in payment of rent and is not entitled to benefit
of Section 114 of the T.P. Act. Feeling aggrieved and dissatisfied
with the said order, the respondent filed a Revision, which was
registered as S.C.C. Revision No. 20 of 2009. The Revisional Court
by order dated 18.7.2011 allowed the revision and remanded the
matter to the Trial Court for disposal afresh mainly on the ground
that the Court below had erred in not giving the benefit of Section
114 of the T.P. Act. Hence the present writ petition.
It is not disputed that no
written lease agreement was executed between the parties, so, it
cannot be said that the lease was determined by way of forfeiture as
provided under Section 111(g) of the T.P. Act. That being so, the
necessary corollary whereof would be that the provision of Section
114 of the T.P. Act would also not be applicable. Thus the
respondent cannot claim any benefit of Section 114 of the T.P. Act.
Learned counsel for the
petitioner has relied upon a decision of this Court in the case of
Yashpal vs. Allahabad Malik Waqf Azakhan and others, 2005(3)
Allahabad Rent Cases, Page 764, wherein it has been held as follows:
“Hence, the submission made by the learned
counsel for the petitioner (defendant) that Section 111, Clause (g)
would be rendered redundant if Category (1) of the said clause (g)
is confined to only a written lease, cannot, in my view, be
accepted.
Hence, in view of the
aforesaid, it follows that for the applicability of Section 111(g),
Category (1), and, as such, of Section 114 of the Transfer of
Property Act, it is necessary that the lease must be in writing
containing the express condition as per the requirements of Section
111(g), Category (1), and, as such, of Section 114 of the Transfer
of Property Act will not apply. The provisions of Section 111 (g),
Category (1), and consequently, of Section 114 of the Transfer of
Property Act are not applicable to oral lease. This view gets
support from various judicial decisions.”
Since there is no written lease agreement between the
parties, the provisions of Section 111(g) is not applicable,
therefore, the respondent cannot take benefit of Section 114 of the
T.P. Act. (Anil Kumar Keshav Dev vs. Kishan Lal Shyam Lal; 2012
(5) ALJ 703)
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U.P. Consolidation of
Holdings Act
S. 48 - Scope of - Held, while exercising
the revisional power, the Deputy Director of Consolidation, can set
aside the findings recorded by authorities below, if their findings
are found to be illegal, irregular or improper - However he cannot
substitute his own findings
The only reason indicated for
setting aside the judgment and order passed by the appellate court
as well as the trial court by the Deputy Director of Consolidation
is not tenable. The Court finds that the judgments by the trial
court which was affirmed by the appellate court is based on
appreciation of evidence available on record and upsetting the same.
The reason indicated by the Deputy Director of Consolidation is
fallacious inasmuch as the stand taken by Ram Prasad that the
property in question was not ancestral property and hence, the
petitioners do not have any co-tenancy rights diluted by his own
statement made in the previous mutation proceedings. There is
nothing on record to establish that the stand taken by Ram Prasad
has on where been denied in any form by him. In light of
discussions and reasons given above, the writ petition deserves to
be allowed.
Accordingly, the writ petition is allowed. A writ in the
nature of certiorari is issued quashing the impugned judgment and
order dated 11.10.1972 passed by the Deputy Director of
Consolidation, Pratapgarh as contained in annexure no. 4 to the writ
petition. However, there will be no order as to costs. (Sher
Bahadur Singh & others Vs. Deputy Director of Consolidation,
Pratapgarh & others; (2012 (30) LCD 2270) (All HC (LB)
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U.P. Factories
Welfare Officers Rules, 1955
Rule 9, Proviso and 13 - Constitution of
India, 1950 - Articles 14 and 226 -Exemption of age limit –
Appointment - Petitioner was appointed as Welfare Officer Grade III
in Cotton Mill Naini - On date of appointment he was slightly
overage - He applied for age relaxation - Authority concerned has
refused to relax age and rejected his claim - But no reason recorded
with the order opinion - Failed to apply mind - Hence, the impugned
order is quashed and directed to reconsider the grant of exemption
in age as provided under Rule 9
In short, fair play requires
recording of germane and relevant precise reasons when an order
affects the rights of a citizen or a person irrespective of the fact
whether it is judicial, quasi-judicial or administrative. Decision
or order of any statutory or public authority bereft of reasoning
would be arbitrary, unfair and unjust, violative of Article 14 of
the Constitution of India.
The State Government, rejecting
the petitioner’s application for age relaxation under proviso to
Rule 9 of the Rules. The said order simply states that the State
Government has rejected the application as it was not possible to
grant any age relaxation. The aforesaid order is undoubtedly a
non-speaking order. It does not contain any reason for rejecting the
petitioner’s application for grant of relaxation in age limit. The
impugned order does not in any manner show that the authorities had
applied mind to the relevant aspects in refusing age relaxation to
the petitioner.
The orders dated 21.4.1987 and 4.11.1986 (Annexures 5
and 7 to the petition) are quashed and a writ of mandamus is
issued directing respondent No. 1 to reconsider the grant exemption
in the matter of age limit as provided under Rule 9 of the U.P.
Factories Welfare Officers Rules, 1955. (Ramesh Chandra Vs. Chief
Inspector of Factories U.P., Kanpur and another; (2012 (135) FLR 95)
(All HC)
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U.P. Imposition of Ceiling on Land
Holdings Act
S. 10 - Ceiling
proceedings - Non substitution of legal heirs after death of tenure
holders - Effect of - Proceeding liable to be set aside
The
petitioners are the grand-sons of the tenure holder, late Ganga
Prasad Tripathi. The tenure holder was put to notice under S. 10(2)
of the U'P Imposition of Ceiling on Land Holdings Act, 1960 and the
prescribed authority vide order dated 21st July, 1976 declared an
area of 10.54 acres of land as surplus. This was pursuant to a
second notice in spite of the authority having issued a previous
notice. The tenure holder filed an appeal which was allowed on 21st
September, 1978 whereby the subsequent notice issued by the
prescribed authority was discharged leaving it open to the
prescribed authority to proceed in accordance with law as per the
earlier notice that was issued to Ganga Prasad Tripathi.
After
remand the petitioners state that their grand-father, Ganga Prasad
Tripathi, died on 4th of November, 1980. The proceedings thereafter
did not continue against the heirs of Ganga Prasad Tripathi and as a
matter of fact no substitution was carried out on behalf of the
State. It has been stated that the father of the petitioners,
Janardan Prasad Tripathi had also died in between on 22nd October,
1987".
The
status of the family and its pedigree has been disclosed in
paragraph 17 of the writ petition. The petitioners, therefore, took
a stand that without substituting all the legal heirs the proceeding
could not be continued and the State having failed to discharge its
duties, the petitioners were under no Obligation to have voluntarily
put up their appearance.
In the
circumstances it is not correct or record that the petitioners or
the tenure holders were present before the prescribed authority
after substituting. The substitution application which was filed
Kunta Kishore Mani Tripathi was also not disposed of which fact has
been clearly stated in the supplementary affidavit. There is no
denial to the same. All the aforesaid circumstances cumulatively,
therefore, clearly indicate that the tenure holders were not
represented and the heirs were not bought on record and put to
notice before the prescribed authority proceed to pass the impugned
order. Even if Kunta Kishore one of the sons had knowledge of the
pendency of the proceedings, the same is no way is substituted
service on the heirs entitled to contest the matter. There is no
proof of any service and therefore the presumption of knowledge or
notice is erroneous. (Surendra Narain Tripathi & Anr. V. State of
U.P. & Ors.; 2012(6) ALJ 345)
S. 10(2) – Declaration
of surplus land -Validity of
In the present case, the subject-matter of land under the Will had
been directed to be excluded under, the appellate order dated 17th
of May, 1988 and the same has been reiterated in the appellate order
dated 5.2.1991. In view of the provisions of Section l3 of the U.P.
Imposition of Ceiling on Land Holdings Act, 1960 it is clear
that the decision in an appeal shall be final and conclusive and
shall not be questioned in any Court of law. The appellate order
dated 17.5.1988 as reiterated in the order dated 5.2.1991 was,
therefore, final. There was no evidence to the contrary to dispute
the execution of the Will. It is only on the ground of an alleged
delayed mutation proceeding that the Will has been discarded by the
Prescribed Authority. In the opinion of the Court merely because
proceedings for recording the name took 11 years will not defeat the
devolution of interest under the Will so long as the Will is not
stated to be either fake or forged. In the absence of any such
finding neither the Prescribed Authority nor the Appellate Authority
could have discarded the said will more so when the appellate order
dated 17.5.1988 and 19.2.1991 specifically issued a direction to
exclude the land under the Will. It is for this reason that this
Court granted an interim order recording the same on 18.10.1995.
(Amir Ahmad & Anr. v. Additional Commissioner & Ors.; 2012(6) ALJ
288)
BACK TO INDEX
U.P. Recruitment of Dependent of Government Servant Dying in Harness
Rules
S.5 – Relaxation - Financial stringency - While deciding
financial stringency for compassionate appointment retrial benefits
received are not to be counted and power to relax in compassionate
appointment should be with subordinate court instead of State
Government
The receipt of family pension by the widow and sum of Rs. 1.42 lacs
paid to widow after deducting the loan cannot be taken to be a good
ground for rejecting the case for appointment on compassionate
ground. It is common knowledge that the widow is entitled to family
pension and other benefits in the event her husband dies in harness.
If the plea of the Bank is accepted then no appointment can be make
on compassionate ground and the scheme of the Bank shall have no
meaning. We are of the view that the learned Single Judge was quite
justified in allowing the writ petition. (Pramod Kumar Rajak vs.
Registrar General High Court, Allahabad; AISLJ 2012(3) 497)
BACK TO INDEX
U.P.
Stamp Rules
Rule-341 - Determination of value of land
- Various factors to be considered
In Mahabir Prasad
Shantuka Vs. Collector; 1987 ALR 308 this Court has observed
that the term market value means that the willing purchaser would
pay to a willing seller for the property having regard to the
advantages available to the land and the development activities
which may be going on in the vicinity and the potentiality of the
land and other relevant factors. Circle rate fixed by Collector
under Rule 341 of U.P. Stamp Rules, 1942 are guidelines for the
purpose of realisation of stamp duty in the event of sale of land of
a particular area. It cannot determine the value of land
conclusively.
The above observations goes to show that when almost adjoining
buildings having similar structures can have different value, to
apply the circle rate applicable to entire locality cannot properly
determine the market value of building in question. In this
particular case the RCEO has followed and preferred an exemplar of a
building in vicinity and of a recent duration when application was
filed by petitioners. (Rama Shankar vs. Special Judge (NDPS) Act,
Orai, Jalaun; 2012(3) ARC 607 (All HC)
BACK TO INDEX
U.P. Urban Buildings (Regulation of Letting, Rent & Eviction) Act
Ss. 2 & 3 - Date for commencing ten years
period - Determination
For the purpose of
commencing period of ten years under Section 2(2), it is the date on
which the "construction of the building is completed." As to when
construction would be treated as completed, the phrase has been
defined in Explanation (a) of Section 2(2), which refers to the date
on which construction of the building is reported to local authority
or is otherwise recorded by it having jurisdiction, and, in case of
building subject to assessment, the date on which the first
assessment thereof comes into effect, and where the said dates are
different, the earliest of the said dates. It is only when none of
the aforesaid dates are available, the date on which the premises is
actually occupied for the first time would constitute the date on
which the construction would be said to have completed. (Fakir
Chandra Govila vs. Suresh Chandra Agarwal; 2012(3) ARC 716 (All HC)
S. 2(1) (bb) - Provisions under -
Exemption from operation of Act Explained
Section 2, in fact,
provides exemptions from operation of Act 1972 and says that nothing
in this Act shall apply to the buildings covered by those as
referred to in Clause (a) to (h) of Sub section (i), with which we
are concerned in the present matter, and, hence, it is not necessary
to refer sub section 2 of Section 2 of Act, 1972. Section 2(1) reads
as under:
Exemptions from operation of Act.- (1)
Nothing in this Act shall apply to the following, namely :-
(a) any building
of which the Government or a local authority or a public sector
corporation or a Cantonment Board is the landlord; or
(b) any building
belonging to or vested in a recognised educational institution, or
(bb) any building
belonging to or vested in a public charitable or public religious
institution;
(bbb) any building
belonging to or vested in a waqf including a waqf-alal-aulad;
(c) any building
used or intended to be used as a factory within the meaning of the
Factories Act, 1948 (Act No. LXIII of 1948) where the plant of such
factory is leased out along with the building; or
(d) any building
used or intended to be used for any other industrial purpose (that
is to say, for the purpose of manufacture, preservation or
processing of any goods) or as a cinema or theatre, where the plant
and apparatus installed for such purpose in the building is leased
out along with the building:
Provided that nothing in
this clause shall apply in relation to any shop or other building,
situated within the precincts of the cinema or theatre, the tenancy
in respect of which has been created separately from the tenancy in
respect of the cinema or theatre; or
(e) any building
used or intended to be used as a place of public entertainment or
amusement (including any sports stadium, but not including a cinema
or theatre), or any building appurtenant thereto; or
(f) any building
built and held by a society registered under the Societies
Registration Act, 1860 (Act No.XXI of 1860) or by a co-operative
society, company or firm and intended solely for its own occupation
or for the occupation of any of its officers or servants, whether on
rent or free of rent or as a guest house, by whatever name called,
for the occupation of persons having dealing with it in the ordinary
course of business;
(g) any building,
whose monthly rent exceeds two thousand rupees;
(h) any building of which a Mission of a foreign country or any
international agency is the tenant.
The words relevant in
Section 2(1)(bb) are "public charitable" or "public religious
institution". A building which belongs to or vests in a public
charitable or public religious institution is exempted from
operation of the Act.
Ex facie, there is no use
of the word 'trust' in the entire sub section. Section 2(1)(bb) has
been inserted by U.P. Act 5 of 1995 w.e.f. 26th September, 1994
which replaced U.P. Ordinance No.19 of 1994 which came into force on
26th September, 1994. This Court has held in Punjab National
Bank, Ghaziabad Vs. Dr. Rajendra Nath Azad; 1996 (1) ARC 348 & Ram
Dularey vs. IVth A.D.J. Varanasi; 1996(2) ARC 459 that amendment
Act 5 of 1995 is not retrospective. (Radhey Shyam Kushwaha vs.
Addl. District Judge; 2012(3) ARC 823 (All HC)
S. 2 (1) (bbb) - Provisions under - Legality of
So far as further submission of
learned counsel for the petitioner with reference to Section 2
(1)(bbb) is concerned, this Court finds that it was inserted by U.P.
Act No. 5 of 199 w.e.f. 25.09.1994 while the suit in question was
decided by the Trial court on 19.07.1994. Hence, this amendment
would result in no consequence. Hence it has been held that the
aforesaid amendment would not abate also pending proceedings and
same would continue to be governed by the earlier law.
The submission of
petitioner that shop in question is owned by a Waqf and in view of
Section 2(1) (bbb), Act, 1972 is not applicable and therefore suit
was liable to be abated, is thoroughly misconceived. The aforesaid
amendment admittedly came into force w.e.f. 26.9.1994 by U.P. Act
No.5 of 1995. The proceedings, which were pending prior thereto
remain unaffected thereby. This issue, stands already settled by
Apex Court as well as by a larger Bench i.e. Division Bench of this
Court. In Ambalal Sarabhai Enterprises Ltd. Vs. Amrit Lal & Company
and Another, 2001(8) SCC 397 the Court held that insertion of
certain provision in the principal Act, taking away application of
the Act, would not affect pending proceedings, if on the date when
proceedings were initiated, the same were well within its
jurisdiction.
In view of the above
authority of Apex Court and the Division Bench judgment as well as
Single Judge of this Court, the submission that Amendment Act of
1995 would result in abating pending proceedings is clearly
misconceived and is rejected. (Lazmi Prasad vs. Spl. Judge,
Gorakhpur; 2012 (3) ARC 866 (All HC)
S. 2 (g) (as inserted by Section 2 of UP
Act No. 5 of 1995) – Provisions under - Scope and object of
In 1990, when the suit
itself was filed, there was no exemption in respect to application
of Act, 1972 to the property belong to a Wakf. Section 2(1)(bbb)
came to be inserted by U.P. Act No.5 of 1995 w.e.f. 26th September,
1994 and provision is not retrospective. It would not affect pending
proceedings. This is what has already been held by Apex Court as
well as by a larger Bench i.e. Division Bench of this Court. In
Ambalal Sarabhai Enterprises Ltd. Vs. Amrit Lal & Company and
Another, 2001(8) SCC 397 the Court has held that insertion of
certain provision in the principal Act, taking away application of
the Act, would not affect pending proceedings, if on the date when
proceedings were initiated, the same were well within its
jurisdiction.
The said principle has been
followed by a Division Bench in Champa Devi (Smt.) & Anr. Vs. Rent
Control & Eviction Officer (Ist), Allahabad & Anr. 2002(1) ARC 192
and in Para 4 of the judgment, the reference made to the larger
Bench was answered as under.
"Accordingly, the answer to the question
referred would be that clause (g) to Section 2 of the U.P. Urban
Buildings (Regulation of Letting, Rent and Eviction) Act, 1972,
inserted in the Act by Section 2 of U.P. Act No. 5 of 1995, will not
affect the proceedings pending on the date of enforcement of U.P.
Act No. 5 of 1995."
The Revisional Court in
fact has made certain observations in this regard which is by way of
abundant caution otherwise it has clearly held that property though
is a Wakf property but is covered by Act, 1972. Since there is
default in payment of rent, Trial Court has rightly decreed the
suit. It appears that in respect to allegation regarding default in
payment of rent and liability of tenant for eviction on the ground
under Section 20(2)(a) of Act, 1972, no issue was raised before
Revisional Court and this aspect was conceded by learned counsel for
the petitioner. The issue raised before this Court has already been
settled and it has been found that Wakf property was not exempted
from application of Act, 1972 in 1990, therefore, suit in question
was rightly filed under Section 20(2)(a) of Act, 1972. (Pooran
Chandra vs. VIth Additional District Judge; 2012(3) ARC 895 (All HC)
Ss. 2(2), 21 –
Applicability of Act - For applicability of Act, 10 years time has
to be passed from date of construction of premise
In this
case the building in question having been constructed and completed
in 1977, in 1983, then years having not passed, Act No. 13 of 1972
was not applicable by virtue of Section 2(2) of Act, 1972. That
being so the Prescribed Authority under Section 21 of Act, 1972
lacked patent jurisdiction. A jurisdiction cannot be conferred even
by consent of parties. It is an elementary principle, where a Court
has no jurisdiction over the subject-matter of the action in which
an order is made, such order is wholly void, for jurisdiction cannot
be conferred by consent of parties. No waiver or acquiescence on
their part can make up the patent lack or defect of jurisdiction. If
the decision/order of court/authority is void for want of
jurisdiction over the subject-matter, it since the essential
pre-requisite is that it should be the within the meaning of Section
11 of the Civil procedure Code. Something which is wholly without
jurisdiction, that is nullity in the eyes of law, no principle of
law would come to confer any kind of effectiveness to such
proceedings so as to have any legal consequence. (Ramesh Chandra
Yadav II Addl. District Judge, Jalaun at Orai and Ors; 2012 (6) ALJ
130)
Ss. 2(2), 24(2)—Applicability of Act on
‘New Building’—Consideration of—Court has further held that tenancy
is extinguishes as soon as tenanted building falls to earth
Noticeably, Section 2 of the Act
is also similarly worded. Sub-section (1) of Section 2 consists of
clauses (a) to (h). All these clauses open with the words “any
building………..” Similarly, its sub-section (2) which grants exemption
to a building during the period of ten years (now it is forty years)
from the date on which the construction completes. The irresistible
conclusion which can be drawn is that the U.P. Act No. 13 of 1972
also grants exemption to the building from the operation of the Act
and not to the relationship of landlord and tenant. The exemption is
to building specific. There being so, the argument of the tenant
that the old tenancy continues is meritless, as soon as the tenanted
building falls to earth, the tenancy comes to an end.
It follows that rent control
legislation relating to building, protects the accommodation and as
soon as the accommodation i.e. super structure is demolished, the
tenancy extinguishes.
The language of sub-section (2)
of Section 2 makes it crystal clear that only such buildings which
are specified in the various provisions referred therein would not
be covered by the operation of the Act. this being not the case of
the tenant that a release order was obtained against him under
Section 21(1)(b) or the demolition or reconstruction took place in
pursuance of such release order, we see no reason to hold the
applicability of sub-section (2) of Section 24 in the facts of the
case. if the tenant’s contention is accepted, it would be doing
violation to the plain language of Section 2(2) and Section 24 of
the Act. The main thrust of the tenant’s argument is that the
principles underlying Section 24(2) would be applicable cannot be
accepted. The tenant vacated the earlier shop voluntarily under a
compromise. At the best the rights of the parties shall flow from
the said compromise that the new shop would still be governed by the
provisions of the U.P. Act No. 13 of 1972 notwithstanding the fact
that the shop in question is a new construction exempt from the
operation of the Act under Section 2(2) thereof.
A conjoint reading of the
clauses (b) and (c) would show that a new construction includes
building which has been raised in place of an existing building
which has been wholly or partially demolished as also where a
substantial addition has been made to an existing building and the
existing building becomes only a minor part thereof, the whole of
the building including the existing building shall be deemed to be
constructed on the date of completion of said addition. It follows
that if a major portion of a building is demolished and replaced by
a “new construction”, the old existing construction which becomes
minor part of the building would also be treated as new construction
and existing part of the building would not exempt from the
operation of the Act. If that is so, it does not follow to reason
where a building has been completely demolished and replaced by a
new building, why such building shall not be exempt from the
operation of the Act.
For the reasons given
above, we answer the question referred to us by holding that the
provisions of the U.P. Act No. 13 of 1972 will not apply to new
construction where under the agreement, a tenant voluntarily vacates
the tenanted accommodation for demolition and new construction and
after demolition and new construction, newly constructed premises is
let out to the tenant. To put it differently, a new construction
after demolition shall be exempt from the operation of provisions of
the U.P. Act No. 13 of 1972 as provided under Section 2(2) of the
Act notwithstanding the fact that the tenant who was earlier in
occupation of the existing building voluntarily agreed to vacate it
and in lieu thereof the landlord agreed to let the new construction
out to such tenant after reconstruction. (Gopal Dass vs. Bal
Kishan Dass; 2012 (5) ALJ 705)
Terms - “Charitable institution” and “religious institution”-
Meaning of
The term "charitable
institution" and "religious institution" both have been defined in
Section 3(r) and (s) of Act, 1972 as under:
(r) "Charitable institution" means any
establishment, undertaking, organisation or association formed for a
charitable purpose and includes a specific endowment;
Explanation- For the purposes of this
clause, the words "charitable purpose" includes relief of poverty,
education, medical relief and advancement of any other object of
utility or welfare to the general public or any section thereof, not
being an object of an exclusively religious nature;
(s) "Religious institution" means a temple,
math, mosque, church, gurudwara or any other place of public
worship."
(emphasis added)
In order to constitute a
"religious institution" it must be a temple, math, mosque, church,
gurudwara or any other place of public worship.
In order to become a
"charitable institution", formation of body must be for a charitable
purpose which includes a specific endowment. The term "charitable
purposes" has been explained by explanation to Section 3(r)
providing that it shall include relief of poverty, education,
medical relief and advancement of any other object of utility or
welfare to the general public or any section thereof, not being an
object of an exclusively religious nature. Which part of these
definitions of "charitable institution" would apply would depend on
the specific pleadings and evidence placed before the Court by the
plaintiff or the party concerned who wants to exclude applicability
of Act, 1972 which is otherwise applicable to the shop in question.
(Radhey Shyam Kushwaha vs. Addl. District Judge; 2012(3) ARC 823
(All HC)
Ss. 11, 12, 13, 31—Unauthorised
occupant—What amounts to—Possession of premises without consent of
landlord would be termed as unauthorized occupant within meaning of
Ss. 11, 12, 13 and 31 of Act
In terms of Section 13 of the
Act, without an order of allotment, tenants status under the deeming
provision is that of an unauthorized occupant and that of trespasser
and the suit for getting back possession from the trespasser can
also be filed. However, it does not debar the Rent Control and
Eviction Officer/appropriate authority under the Act from setting in
motion the machinery for declaring vacancy of the premises in
dispute when he is of the opinion that the premises which comes
within the ambit of the Rent Control Act is being occupies by the
unauthorized occupant/trespasser without an allotment order. The
U.P. Act No. 13 of 1972 does not make any distinction between the
unauthorized occupant and the trespasser so as to limit the power of
the Rent Control Eviction Officer/District Magistrate from
initiating the proceedings under Section 12 of the Act particularly
when the landlord fails to taken any eviction proceedings against
the trespasser. The premises in the possession of an unauthorized
occupant would be deemed to be vacant for the purpose of Rent
control Act, even if an authorized occupant is included in to the
premises contrary to the provision of the Act by the landlord
himself, the legislature has not placed any restriction on the rent
control authorities to initiate proceedings under Section 12 of the
Act so far as the release of such premises which are deemed to be
vacant under Section 12(4) of the Act is concerned.
If the person let out his house
ignoring the provisions prohibiting the letting without allotment
order or has occupied the premises forcefully without any allotment
order would be an unauthorized occupant but also liable to be
prosecuted under Section 31 of the Act and his possession being
unauthorized cannot be recognized in the eye of law. (Smt. Reeta
Singh vs. Rajendra Sharma; 2012 (5) ALJ 420)
Rule 17(1)(a) - Provisions under -
Before, allowing an application of release of buildings under
section 21(1) (b) of 1972 Act - Prescribed Authority required to
satisfied essential conditions laid down U/R 17 of 1972
Rule 17(1)(a) of U.P.
Urban Buildings Rules, 1972 contemplates that Prescribed Authority
while considering an application on the ground of Section 21(1)(b)
shall satisfy itself that the building requires demolition.
Therefore, it is the satisfaction of Prescribed Authority regarding
condition of building that it is dilapidated if he comes to the
conclusion that it requires demolition. The satisfaction of
Prescribed Authority, in my view, has been required under the Rules
only to reassert the factum about condition of building, whether
dilapidated or not and to avoid any mischief on the part of landlord
to oust a tenant from a building which is though otherwise safe and
in a good condition but to seek his ouster taking the plea of
condition of building being dilapidated. (Vishambhar Dayal vs.
VII Additional District Judge; 2012(3) 891 (All HC)
S. 18 – Revision -
Locus Standi - Release order obtained by petitioner in fraudulent
manner as there was no tenant in premises in question – Co-owner
were in use and occupation of premises - Any person aggrieved by
such order is entitled to file revision
Section 18 of Act, 1972 provides that no appeal shall lie from any
order under Sections 16 or 19 but "any person aggrieved by a final
order under any of the said Sections may, within 15 days from the
date of such order, prefer a revision to the District Judge." The
right to file a revision, therefore, has been conferred upon "any
person who is aggrieved by a final order" passed by the authority
concerned either under Section 16 or Section 19. It is not in
dispute that order where against revision was filed was a final
order under Section 16 of Act, 1972. The authority concerned
declared deemed vacancy in the premises in question and passed order
for release thereof in favour of petitioner and action was taken to
execute the said order. Respondents 1 and 2 claimed that they were
the actual occupant of premises in question and being co-owner were
residing therein. Hence, in the garb of orders passed by competent
authority under Section 16 of Act, 1972 against non existing
tenants, they could not have been evicted. To execute the orders
passed under Section 16 of Act, 1972, the competent authority had
passed an order for providing Police help also. This led to a
situation of breach of peace and law and order whereupon the Addl.
City Magistrate-II had to pass an order on 3.11.2006 under Section
112 read with 107/116 Cr.PC. as to why proceedings under Section
107/116 be not initiated for maintaining peace. Copy of the said
notice is Annexure 5 to writ petition which was issued to respondent
Nos. 1 and 2 besides two others. It has not been disputed by learned
counsel for petitioner that in furtherance of orders passed by RCEO
on 13.4.2005, the petitioner took steps for vacation of premises in
question and if the accommodation was occupied by respondents 1 and
2 they also ought to have been evicted there from. That being so, it
cannot be said that respondents No. 1 and 2 were not the "persons
aggrieved" so as to file a revision under Section 18 of the Act,
1972.
I
am also of the view that here is a case where petitioner played
fraud and misrepresentation in order to obtain orders dated
1.10.2004, 13.4.2005 and 30.7.2005 from competent authority under
Section 16 of Act, 1972 and being the orders obtained by fraud, the
same have rightly been set aside by Revisional Court.
Fraud
vitiates everything. Though no submission, legal or otherwise, is
sustainable in favour of petitioner, but even if, for the sake of
argument, it is assumed that the same may prevail, still if the
orders obtained by petitioner are result of a fraud or
misrepresentation and this Court finds so, it is bound to set at
nought the effect of such orders which are result of a fraud and
misrepresentation of a party otherwise this Court shall be failing
in its duty of judicial review giving substantial justice to the
parties.
The
litigation initiated by petitioner is founded on an apparent fraud
and misrepresentation. In my view petitioner is also guilty of gross
abuse of process of law and therefore here is not only a case where
petitioner has to be non-suited but she must be saddled with an
exemplary cost. (Kabita Mukharjee v. Smt Pinky Mookargee & Ors.;
2012(6) ALJ 78)
S. 20(2)(a) - Provincial Small Causes
Courts Act, 1887, S.17 - Ejectment suit - Decreed ex-part - Recall
of tenant allowed with condition - Revision against by landlord
allowed tenant/petitioner not complied with mandatory provision of
Section 17 of PSCC Act - Legality of
It is needless to say that
the provisions contained in Section 17 of Small Causes Courts Act
are mandatory, in nature. So there is no reason to raise any doubt
that the nature of the proviso is not mandatory and directory. The
matter has been dealt with the Hon'ble Apex Court in Kedar Nath
v. Mohan Lal Kesarwari and Others; [2002 (20) LCD 551], in which
Hon'ble Apex Court has traced the law on the point laid down in
Mohd. Ramzan Khan v. Khubi Khan; AIR 1938 Lahore 18 up to
Beena Khare v. VIIIth ADJ, Allahabad; (2000) 2 ARC 616, and has
reached to the conclusion that right from pre-independent days, the
law is being constantly followed that the provisions contained in
Section 17 are mandatory in nature and even the nobility of the
Court cannot dissolve the mandatory nature of the provisions. (Bindeshwari
Prasad Soni vs. Additional District Judge Court, Balrampur; 2012(3)
ARC 684 (All HC LB)
S. 20(2) (f) Province under – Evection of
tenant - If ground under S. 20(2) (f) of Act found proved a decree
of ejectment against tenant could be passed
The only question up for
consideration is whether there is a denial or dispute of title of
landlord by tenant attracting Section 20 (2) (f) of Act, 1972.
Section 20 (2) (f) of Act,
1972 provides a ground for eviction of tenants and reads as under:
"20.(2) (f) that the tenant has renounced
his character as such or denied the title of the landlord, and that
latter has not waived his right of re-entry or condoned the conduct
of the tenant;
Counsel for parties have
not disputed if such denial has taken place in the written statement
during pendency of a suit for ejectment under Section 20 (2) (a) of
Act, 1972, the landlord need not initiate any fresh proceedings but
in the same suit, if the ground under Section 20 (2) (f) of Act,
1972 is found proved, a decree of ejectment against tenant can be
passed. (Kunti Devi (Smt.) vs. IIIrd ADJ; 2012(3) ARC
642 (All HC)
S. 20(4) – Expression
‘first date of hearing’ – Meaning of – Date of first hearing is when
Court proposes to apply its mind
A
three-Judge Bench of Apex Court also
considered this issue in Siraj Ahmad Siddiqui v. Prem Nath Kapoor,
1993 (4) SCC 406 : (AIR 1993 SC 2525: 1993 All LJ 1250) and said as
under:
The
date of first hearing of a suit under the Code is ordinarily
understood to be the date on which the Court proposes to apply its
mind to the contentions in the pleadings of the parties to the suit
and in the documents filed by them for the purpose of framing the
issues to be decided in the suit. Does the definition of the
expression 'first hearing' for the purposes of Section 20(4) mean
something different? The "step or proceedings mentioned in the
summons" referred to in the definition should we think, be construed
to be a step or proceeding to be taken by the Court for it is, after
all, a "hearing" that is the subject-matter of the definition,
unless there be something compelling in the said Act to indicate
otherwise; and we do not find in the said Act any such compelling
provision. Further, it is not .possible to construe the expression
"first date for any step or proceeding" to mean the step of filing
the written statement, though the date .for that purpose may be
mentioned in the summons, for the reason that, as set out earlier,
it is permissible under the Code for the defendant to file a written
statement even thereafter but prior to the first hearing when the
Court takes up the case, since there is nothing in the said Act
which conflicts with the provisions Of the Code in this behalf. We
are of the view, therefore, that the date of first hearing as
defined in the said Act is the date on which the Court proposes to
apply its mind to determine the points in controversy between the
parties the suit and to frame issues, if necessary."
Again it was considered in
Sudarshan Devi v. Sushila Devi, 1999 (8) SCC 31: (AIR), 999 SC 3688:
1999 All U 2394) and held that the date fixed for hearing of the
matter is the date of first hearing and not the date fixed for
filing of written statement. The Court observed that emphasis in the
relevant provision is on the word “hearing”.
It also held that once the date of
“first hearing” is determined and thereafter the case is adjourned,
the date of first hearing of the suit would not change on every
adjournment of the suit for final hearing.
Thus the effective date of first
hearing of the suit could be, when the Court proposed to apply its
mind. (Satya Nariain Tiwari v. Pt. Keelkanth Trust, Akalganj,
City and District Etawah; 2012 (6) ALJ 319)
S. 21- Release of premises on ground of
personal requirement, while landlord had many other premises wherein
he has already business - Validity of
In Gaya Prasad, the Court
said that for the malady of judicial system of delayed justice, a
landlord should not suffer. Every day may result in some kind of
development and, therefore, every subsequent development would not
deny claim of landlord on the pretext of a subsequent development
since no one can be expected to stay idle for all times to come till
a litigation is going on. It may happen that the lifetime of
litigation may be more than that of litigant-landlord himself.
Therefore, the judicial tardiness should not cause an irreparable
loss to a landlord. It would be unjust to shut the door of justice
to a landlord on the end of litigation after passing through various
levels of litigation to deny him justice and relief sought only on
the ground of certain developments occurred pendente lite because
the tenant has been successful in prolonging litigation for an
unduly extended long period. However, if the cause of action is
submerged in such subsequent events, in other words, if the
subsequent events are such as to satisfy the very requirement of
landlord in its entirety, the same can be seen and there is no
allergy in considering and taking note of subsequent events of
importance which may justify remoulding of relief not on account of
mere pendency of litigation but on account of the position and
status of landlord and other relevant factors.
This matter was further
examined in detail in Kedar Nath Agrawal and having considered a
number of authorities on the subject, the Apex Court, in para 16 of
judgment, crystallized three aspects when subsequent events can be
taken note by a Court of law, namely:
(i) The relief
claimed originally has, by reason of subsequent change of
circumstances, become inappropriate; or
(ii) It is
necessary to take notice of subsequent events in order to shorten
litigation; or
(iii) It is
necessary to do so in order to do complete justice between the
parties.
The Appellate Court, in the
present case, without looking to binding authorities of Apex Court,
as discussed above, and by brushing aside various material available
on record as also the applications filed by petitioner to bring on
record the subsequent events having material bearing, by simply
observing that no subsequent events can be considered, has clearly
erred in law. The impugned judgment, therefore, cannot sustain.
In the result, writ
petition is allowed to the extent that the impugned appellate
judgment dated 11.10.2004 (Annexure 1 to writ petition) is hereby
set aside. The matter is remanded to Appellate Court to rehear the
appeal of petitioner in the light of observations made above and in
accordance with law and to decide the same afresh after hearing the
concerned parties. (Chand Ratan Laddha vs. Additional District
Judge; 2012(6) ALJ 764 (All HC)
Ss. 21(1) (a) & 22 - Release application
against petitioners/tenant allowed directing petitioners to handover
possession of premises in question to plaintiff -
Respondent/landlord - Appeal against dismissed - Writ petition
Legality of
Trial Court vide order
dated 18.11.2000 has allowed respondent's application filed under
Section 21(1)(b) of Uttar Pradesh Urban Buildings (Regulation of
Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as
"Act, 1972") directing petitioners to vacate and hand over
possession of premises in question to the
plaintiff-respondent-landlord for the purpose of demolition and
reconstruction and appellate order dated 11.9.2002 passed by
District Judge, Kanpur dismissing petitioners' appeals. There were
two appeals before the District Judge but both were filed by
petitioners-tenants against the same judgment of the Trial Court
dated.
Learned counsel for the
petitioners contended that paras 10 and 11 of release application
shows that respondent - landlord also sought relief for release of
accommodation in question under Section 21(1)(a) of Act, 1972 though
the application has been decided under Section 21(1)(b) of Act,
1972. Since the application was filed within three years after the
date of purchase without complying with the requirement of proviso
to Section 21(1)(a), the application was not maintainable.
A bare reading thereof
shows that though landlord said that accommodation available to him
is insufficient yet he has not propounded his case on the ground of
personal need since he had purchased the building in question for
its demolition and reconstruction. Therefore, in substance and for
all purposes the aforesaid avements do not constitute to make out a
case under Section 21(1)(a) of Act, 1972. An application has to be
read in its entirety and having gone through the same I find that it
was an application filed under Section 21(1)(b) of Act, 1972 for
demolition and reconstruction and not on the ground of personal
need. The landlord himself has stated that despite the fact that
accommodation available to him is insufficient but he has not
founded his application on that ground but has proceeded to make out
a case under Section 21(1)(b) of Act, 1972. It is how both the
Courts below have also construed, understood and adjudicated the
matter and court entire agree thereto.
Learned counsel for the
petitioner has not been able to point out any apparent error in the
two judgments under challenge warranting interference under Article
226/227 of the Constitution. The scope of judicial review under
Article 227 is very limited and narrow as discussed in detail by
this Court in Civil Misc. Writ Petition No.11365 of 1998. (Ganga
Charan vs. Santosh Kumar Awasthi; 2012(3) ARC 722 (All HC)
S. 21(1) (a) - Release application -
Dismissed by both Courts below, holding petitioner failed to prove
bonafide need - Sustainability of
In instant cases considering all the facts and circumstances
and evidences on record, both the Courts below have recorded
concurrent findings of fact and unless these findings are shown
perverse or contrary to record resulting in grave injustice to
petitioner, in writ jurisdiction under Article 226/227, this Court
exercising restricted and narrow jurisdiction would not be justified
in interfering with the same. In supervisory jurisdiction of this
Court over subordinate Courts, the scope of judicial review is very
limited and narrow. It is not to correct the errors in the orders of
the court below but to remove manifest and patent errors of law and
jurisdiction without acting as an appellate authority. (Sita Ram
Bijpuriya vs. State of UP; 2012(3) ARC 746 (All HC)
BACK TO INDEX
U.P. Urban Buildings (Regulation of Letting, Rent & Eviction) Rules,
1972
Rules 8 & 9 - Ascertainment and Notice of
Vacancy - Held, before allotment of an accommodation procedure under
rules 8 & 9 observed mandatory
In this case, the premises
in dispute namely House No. 8(8/1) Mohalla Bulaqipur, Gorakhpur was
earlier in tenancy of one Abdul Halim Khan. The petitioner, Smt.
Saida Bano filed suit no. 7 of 1981 against Abdul Halim Khan for
ejectment and recovery of arrears of rent and damages for use and
occupation. The suit was decreed on 29.07.1982. He (erstwhile tenant
Abdul Halim Khan) came to this Court in Civil Revision No. 581 of
1982 wherein an interim order was passed on 12.10.1982 restraining
his ejectment from the premises in dispute subject to deposit of
decretal amount within a period of one month and to continue to pay
current monthly damages by 15th of every month. Ultimately, the said
revision was dismissed on 23.09.1985.
In the meantime, it
appears, that, respondent no. 2 moved an application before R.C.E.O.
for allotment of the house in dispute where after he (R.C.E.O.)
directed for inspection. The Inspector submitted report on
25.03.1983 whereupon R.C.E.O. declared vacancy and ultimately
allotted the building in dispute to respondent no. 2 by order dated
14.04.1982.
Learned counsel for the
petitioner submitted that entire allotment proceedings are
fraudulent inasmuch as when revision was pending before this Court
and an interim order was passed, there could not have been any
occasion to R.C.E.O. to declare the premises in dispute vacant and
go on with allotment proceedings. Moreover, the petitioner/landlord
was never informed of the aforesaid proceedings, no notice was ever
served and rules 8 and 9 were never followed.
Further, respondent no. 2
has claimed that he was staying and occupying the premises in
question since 18th April, 1981, when, admittedly it was not vacated
by erstwhile tenant at all. All these facts go to show without any
manner of doubt that there was a clear collusive action/proceedings
at the behest of erstwhile tenant, respondent no. 2. It is also
unfortunate that the revisional court has not appreciated all these
facts and in a sheer reckless manner has decided the revision
against the petitioner. Interestingly, within 20 days and odd the
allotment proceedings have been completed by R.C.E.O. and nothing
has been placed on record to show that in this process the landlord
was ever informed of the aforesaid proceedings by him complying the
requirement of Rules 8 and 9 of U.P. Urban Buildings (Regulation of
Letting, Rent and Eviction) Rules, 1972.
This Court repeatedly has
held that before allotment of an accommodation the procedure laid
down in Rules 8 and 9 of Rules 1972 is mandatory. (Saida Banu
(Smt.) vs. VIIth Addl. District Judge, Gorakhpur; 2012 (3) ARC 586
(All HC)
S. 21(8) - Applicability of Act to
Consumer’s Co-operative Society - Consideration of
The term "Public Sector
Corporation" has been defined in Section 3(p) of Act, 1972 and reads
as under:
"(p) "Public sector corporation" means any
corporation owned or controlled by the Government and includes any
company as defined in Section 3 of the Companies Act, 1956, in which
not less than fifty percent of the paid up share capital is held by
the Government."
Admittedly petitioner's
Cooperative Society is not a Company registered under Companies Act,
1956. In order to qualify to be a Corporation owned or controlled by
Government there is not even a whisper in the entire writ petition
that petitioner's Cooperative Society satisfy the said requirement.
In para 3 of objection
filed by petitioner before RCEO (Annexure-3 to the writ petition) it
has only said that petitioner is a Central Cooperative Store, deals
with commercial transactions with consumers and is a commercial
establishment. It nowhere even mention that it is controlled or
owned by Government in any manner. On the contrary, learned counsel
for the petitioner, during the course of argument, states that
members of Cooperative Society are individuals. In these
circumstances, the order impugned in the writ petition cannot be
faulted and it cannot be said that petitioner-Cooperative Society
satisfies the requirement of exempted categories mentioned in
Section 21(8) of Act, 1972. (Central Consumer Coop. Stores Ltd.,
vs. Vipin Kumar; 2012(3) ARC 687 (All HC)
S. 30(2) - Scope of - No provision under
which during pendency of suit for ejectment a tenant can restart to
deposit rent u/s 30(2) instead of court below in which ejectment
suit is pending
This writ petition is
directed against the order dated 09.09.2004 passed by Additional
District Judge, Court No. 1, Basti allowing respondents' Revision
No. 218 of 2000 and setting aside the Trial Court's order dated
28.08.2000 permitting petitioner to deposit rent from January 1990
and onwards observing that during aforesaid period S.C.C. Suit No. 3
of 1989 was pending before Trial court and, therefore, the
petitioner ought to have deposit rent in the pending case and not
under Section 30 sub-section (2) of U.P. Urban Buildings (Regulation
of Letting, Rent and Eviction) Act, 1972.
Learned counsel for the
petitioner could not point out any provision under which even during
pendency of a suit for ejectment a tenant can resort to deposit rent
under Section 30(2) instead of court below in which ejectment suit
is pending.
This Court in Shiv Raj Singh Vs. Sri Jitendra Babu and others,
Writ Petition No. 19656 of 2003, decided on 21.05.2003 has clearly
held that after the knowledge of pendency of suit of ejectment on
the ground of default, the tenant is not authorized to institute the
case for deposit of rent under Section 30 of Act, 1972 and where
such a case has been instituted prior to receiving of notice of
termination of tenancy and demand of rent, tenant is not authorized
to continue to deposit the rent after receiving the said notice. (Shiv
Prasad@Nate vs. Additional District Judge; 2012(3) ARC 634 (All HC)
BACK TO INDEX
Workmen’s Compensation Act
Ss. 2(1)(i) & (4) – Total disablement –
Compensation – Determination of
The respondent No. I -claimant
was a driver of a lorry bearing registration No. KA 02-6818 which
belonged to respondent No. 2 and was insured by appellant. An
accident occurred on 24.5.2006 and the respondent No. 1 sustained
grievous injuries, i.e., fracture of both bones of right leg,
resulting in amputation above knee. The claim application filed
which was contested after rising of issues and holding inquiry, was
allowed and the compensation as above was directed to be exposited.
Feeling aggrieved, the respondent No. 2 in the claim petition, i.e.,
the appellant, has filed this appeal.
There is no dispute that the
appellant had insured the lorry bearing registration No. KA 02-6818
and the said vehicle, which was driven by the respondent No. 1,
having met with an accident on 24.5.2006 and respondent No. 1
sustaining employment injuries, which resulted in fracture of both
bones of right leg and amputation above knee.
Orthopedic Surgeon, Victoria
Hospital, Bangalore, has deposed that he has examined the injured on
18.1.2008 and found that there is loss of right lower limb above
knee and the patient is walking with crutches and tenderness at
stump area. He has opined that there is physical impairment of 80
per cent to the limb, which is permanent and he has opined that
being in the profession of a driver, the functional disability is
100 per cent. He has stated that with an artificial limb the patient
can walk with difficulty.
In S. Suresh v. Oriental
Insurance Co. Ltd., 2010 ACJ 487 (SC), it has been held that:
“In our view, the ratio of the said
judgment is squarely applicable to the facts at hand. We are of the
opinion that on account of amputation of his right leg below knee,
he is rendered unfit for the work of a driver, which he was
performing at the time of the accident resulting in the said
disablement. Therefore, he has lost 100 per cent of his earning
capacity as a lorry driver, more so, when he is disqualified from
even getting a driving licence under the Motor Vehicles Act.”
The case on hand is not
different from the one decided by the Supreme Court in the decisions
noticed supra. (New India Assurance Co. Ltd. vs. N. Venkatesh and
another; 2012 ACJ 2503)
Ss. 3, 4(1)(C)(iii) & 30 – Compensation –
Disability - Although doctor has certified 40% permanent disability
- But since the workman cannot discharge the work of conductor -
Therefore for him the disability would be 100%- and hence by
impugned award the Commissioner granted compensation of Rs.
5,37,300/- alongwith 9% interest from date of application -
Commissioner has marshalled and considered evidence of parties and
doctor - Has given a categorical finding that the workman has
sustained 100% disability - There is no interference required with
On minutely going though the
statement of doctor it is gathered that although he has stated that
there is a disability of 40% on account of the fracture of the hip
bone, but, now the workman is totally unable to discharge the work
of Conductor and therefore according to me for the workman the
permanent disability is 100% since he cannot now discharge the work
of Conductor.
There is evidence of the workman/respondent that now he
is totally unable to discharge the work which he was doing earlier
to the accident and there is a positive finding of Commissioner in
that regard. In the present case since the Commissioner has
Marshaled and considered the evidence of the parties vis-a-vis to
each other and on the basis of evidence came on record has given a
categorical finding that workman sustained 100% disability,
therefore, this decision is distinguishable on the facts.
(National Insurance Co. Ltd., Jabalpur Vs. Ram Kishore Mishra and
others; (2012 (135) FLR 754) (MP HC)
BACK TO INDEX
Words & Phrases
Accused – Despite having been mentioned
in the rukka, the person not arrayed as accused
Learned
counsel for the appellant in the forefront submitted that having
regard to the specific reference made in the rukka about the
presence of Surjit Singh but yet not being made a party to the crime
and non-consideration of the grievance of the said Surjit Singh with
reference to the extent of injuries sustained by him which according
to him were inflicted upon him by the complainant party, the
prosecution case was not truthful, tampering of the whole case with
a view to pin down the appellants and the other accused by
fabricating the evidence. Learned counsel for the State in his
submission, however, pointed out that there could not have been any
false case fastened on the appellants inasmuch as the rukka which
was prepared at 10.30 p.m. at the hospital was received at the
police station and thereafter the law was set in motion by
registering the FIR without any loss of time. According to learned
counsel, the rukka was written at 10.30 p.m. and the FIR was
registered at 10.35 p.m. wherein the entire allegations brought out
in the rukka were duly carried out and in the said circumstances,
there was no basis at all for submission made on behalf of the
appellants alleging false case foisted against the appellant. Court
find force in the said submission of learned counsel for the State.
As far as non-inclusion of Surjit Singh (OW-2) as an accused or as a
witness is concerned, though in the first blush, it may appear as
though some deliberate attempt was made at the instance of the
prosecution to suppress certain vital factors, on a close scrutiny,
Court find that except referring to the name of Surjit Singh in the
rukka, there was no specific overt act alleged against him in regard
to his participation in the actual crime of assault or inflicting of
injuries or use of any weapon against either the deceased or any
other person. Therefore, the non-inclusion of Surjit Singh in the
array of accused by the prosecution cannot be taken so very
seriously in order to doubt the whole genesis of the case alleged
against the appellant and the other accused. (Avtar Singh vs.
State of Haryana, and Kirpal Singh @ Pala & Ors vs. State of Haryana
& Ors.; 2012(3) ARC 634)
“bailable warrant” and “non-bailable
warrant”
No such terminology found
in Cr.P.C. as well as in Sch. II Form 2 – Issuance of such warrant
by courts. It is true that neither S. 70 nor S. 71 appearing in Ch.
VI Cr.P.C. enumerating processes to compel appearance, as also Sch.
II Form 2, uses expression like “non-bailable”. However, S. 71(2)
specifies endorsements which can be made on a warrant. Endorsement
of expression “non-bailable” on a warrant is to facilitate executing
authority as well as person against whom warrant is sought to be
executed, to make them aware as to nature of warrant that has been
issued. Merely, because Form 2 issued under S. 476 and set forth in
Sch. II nowhere uses expression “bailable” or “non-bailable”
warrant, that does not prohibit courts from using said word or
expression while issuing warrant or even to make endorsement to that
effect on warrant so issued. (Raghuvansh Dewanchand Bhasin v.
State of Maharashtra and another; (2012) 9 SCC 791)
“Dowry” —Meaning of
The Supreme Court in Appasaheb
vs. State of Maharashtra, (2007) 9 SCC 721, while dealing with the
similar issue and definition of the word “dowry” held as under: (SCC
p. 727, para 11)
“11…… A demand for money on account of some
financial stringency or for meeting some urgent domestic expenses or
for purchasing manure cannot be termed as a demand for dowry as the
said word is normally understood.”
In this case, the court has
examined as to whether the demand by the appellant for establishment
of his tailoring business could be held to be a demand for dowry and
further whether for that demand, the ill-treatment given by the
appellant to his wife was so grave that she had been driven to the
extent that she has to commit suicide. But this has not proved here.
(Rohtash vs. State of Haryana; (2012) 3 SCC (Cri) 287)
“Goods” and “Luggage” – Difference explained
‘Luggage’, on the other hand, is
explained in the same dictionary as the trunks, suitcases and other
baggage of a traveller. The emphasis in the context of describing
‘luggage’ is on the utility in the course of travel. These are
articles or substances that are essential for a person, when he is
on the travel. They may include the clothes or the other items such
as soaps and limited quantity of eatables and certain materials of
daily utility. ‘Goods’, on the other hand, have no relevance for the
use by a person, while travelling. The only purpose of carrying them
in a vehicle is to transport or shift them from one place to
another. Once certain articles do not constitute luggage, they need
to be treated as goods irrespective of the quantity. Rice and cement
cannot be treated as luggage since they are not used or utilized by
a person in the course of his traveling. (P. Osuramma vs. P.
Ramachandra and another; 2012 ACJ 2588)
“Harassment”—Includes in its connotative expanse torment and
vexation
In P. Ramanatha Aiyar’s Law
Lexicon, Second Edition, the term “harass” has been defined, thus:-
“Harass, “injure” and
“injury” are words having numerous and comprehensive popular
meanings, as well as having a legal import. A line may be drawn
between these words and the word “harass” excluding the latter from
being comprehended within the word “injure” or “injury”. The
synonymous of “harass” are: To weary, tire, perplex, distress,
tease, vex, molest, trouble, disturb. They all have relation to
mental annoyance, and a troubling of the spirit. (Dr. Mehmood
Nayyar Azam vs. State of Chhattisgarh and Ors.; 2012 Cr.L.J. 3934
(SC)
“Hearing” - Meaning of
So far as this aspect is
concerned the provisions of Section 403, Cr.P.C., provides that no
party has a right to be heard either personally or through pleader
before any Court exercising revisional powers, but the Court may,
if it thinks fit, hear any party, either personally or by pleader.
Thus section 403 confers discretionary power upon the Court to allow
any party to be heard either personally or by pleader. (Jalaluddin
vs. State of U.P.; 2012(6) ALJ 696 (All HC)
“Inquiry” and “Enquiry” – Meaning of
Age determination inquiry
contemplated under the JJ Act and Rules has nothing to do with an
enquiry under other legislations, like entry in service, retirement,
promotion, etc. There may be situations where the entry made in the
matriculation or equivalent certificates, date of birth certificate
from the school first attended and even the birth certificate given
by a corporation or a municipal authority or a panchayat may not be
correct. But court, Juvenile Justice Board or a Child Welfare
Committee functioning under the JJ Act is not expected to conduct
such a roving enquiry and to go behind those certificates to examine
the correctness of those documents, kept during the normal course of
business. (Ashwani Kumar Saxena v. State of Madhya Pradesh;
(2012) 9 SCC 750)
“Instigation” and “Abatement” – Meaning
of
What constitutes
“instigation” must necessarily and specifically be suggestive of the
consequences. A reasonable certainty to incite the consequences must
be capable of being spelt out. Moreso, a continued course of conduct
is to create such circumstances that the deceased was left with no
other option but to commit suicide.
The offence of abetment of
instigation depends upon the intention of the person who abets and
not upon the act which is done by the person who has abetted. The
abetment may be by instigation, conspiracy or intentional aid as
provided under Section 107 IPC. However, the words uttered in a fit
of anger or omission without any intention cannot be termed as
instigation. (Praveen Pradhan v. State of Uttaranchal and
another; (2012) 9 SCC 734)
“Perverse” and “Perversity of approach”
The High Court had declined to
interfere with the judgment and decree of the courts below on ground
that they were based on concurrent findings of fact. The plea of
perversity of approach though raised was not adverted to. Any
finding which is not supported by evidence or inferences is drawn in
a stretched and unacceptable manner can be said to be perverse. The
Supreme Court in exercise of power under Article 136 of the
Constitution can interfere with concurrent findings of fact, if the
conclusions recorded by the High Court are manifestly perverse and
unsupported by the evidence on record.
The trial court as well as the
first appellate court disbelieved the evidence of most of the
witnesses cited on behalf of the husband on the ground that they
were interested witnesses. In a matrimonial dispute, it would be
inappropriate to expect outsiders to come and depose. The family
members and sometimes the relatives, friends and neighbours are the
most natural witnesses. The veracity of the testimony is to be
tested on objective parameters and not to be thrown overboard on the
ground that the witnesses are related to either of the spouse.
Besides, the allegations made in the written statement, the
dismissal of the case instituted by the wife under Section 494 IPC
the non-judging of the material, regard being had to the social
status, the mental make-up, the milieu and the rejection of
subsequent events on the count that they were subsequent to the
filing of the petition for divorce and also giving flimsy reasons
not to place reliance on the same, deserve to be tested on the anvil
of “perversity of approach”. (Vishwanath Agrawal vs. Sarla
Vishwanath Agrawal; (2012) 3 SCC (Cri) 347)
Prejudice – Interpretation of
‘Prejudice’, is incapable of
being interpreted in its generic sense and applied to criminal
jurisprudence. The plea of prejudice has to be in relation to
investigation or trial, and not with respect to matters falling
outside their scope. Once the accused is able to show that there has
been serious prejudice caused to him, with respect to either of
these aspects, and that the same has defeated the rights available
to him under jurisprudence. (Darbara Singh vs. State of Punjab;
2012(6) Supreme 584)
“Prejudice” – Meaning of
The perception of
prejudice is for the accused to develop and if the same is founded
on a reasonable basis it is the duty of the court as well as the
prosecution to ensure that the accused should not be made to labour
under any such perception and the same must be put to rest at the
earliest. Such a view is an inalienable attribute of the process of
a fair trial that Article 21 of the Constitution guarantees to every
accused. (V.K. Sasikala v. State represented by Superintendent of
Police; (2012) 9 SCC 771)
“Sterling witness”—Witnesses can be
called as a “sterling witness” whose version can be accepted by
court without any corroboration and based on which the guilty can be
punished
‘Sterling witness’ should be of
a very high quality and caliber, whose version should, therefore, be
unassailable. The Court considering the version of such witness
should be in a position to accept it for its face value without any
hesitation. To test the quality of such a witness, the status of the
witness would be immaterial and what would be relevant is the
truthfulness of the statement made by such a witness. What would be
more relevant would be the consistency of the statement right from
the starting point till the end, namely, at the time when the
witness makes the initial statement and ultimately before the Court.
It should be natural and consistent with the case of the prosecution
qua the accused. There should not be any prevarication in the
version of such a witness. The witness should be in a position to
withstand the cross-examination of any length and strenuous it may
be and under no circumstance should give room for any doubt as to
the factum of the occurrence, the persons involved, as well as, the
sequence of it. Such a version should have co-relation with each and
every one of other supporting material such as the recoveries made,
the weapons used, the manner of offence committed, the scientific
evidence and the expert opinion. The said version should
consistently match with the version of every other witness. It
should be akin to the test applied in the case of circumstantial
evidence where there should not be any missing link in the chain of
circumstances to hold the accused guilty of the offence alleged
against him. Only if the version of such a witness qualifies the
above test as well as other similar such tests to be applied, it can
be held that such a witness can be called as a ‘sterling witness’
whose version can be accepted by the Court without any corroboration
and based on which the guilty can be punished. (Rai Sandeep @
Deepu vs. State of NCT of Delhi; 2012 Cr.L.J. 4119 (SC)
“Torture” —Connotative expanse
The term “torture” also engulfs the concept of torment. The word
“torture” in its denotative concept includes mental and
psychological harassment. The accused in custody can be put under
tremendous psychological pressure by cruel, inhuman and degrading
treatment. (Dr. Mehmood Nayyar Azam vs. State of Chhattisgarh and
Ors.; 2012 Cr.L.J. 3934 (SC)
BACK TO INDEX
Statutory Provisions
High Court of Judicature at Allahabad
[Amendment (Admin ‘G-I’) Section], Noti. No. 241/VIII c-2 Correction
Slip No. 244, dated June 11, 2012, published in the U.P. Gazette,
Part 1-Ka, dated 16the June, 2012, pp. 431-439, No. 24
In exercise of the
powers conferred by Article 255 of the Constitution of India
and all other powers enabling it in this behalf, the High Court of
Judicature at Allahabad is pleased to make the following amendment
in Allahabad High Court Rules, 1952 Volume I, with effect from the
date of its notification by the Court.
AMENDMENT
1. Amendment in Rule 3 of Chapter XVIII.-
After sub-rule (3) of Rule 3 of chapter XVIII of rules,
following sub-rules (4) and (5) shall be added:
“(4) In first paragraph of
application under Section 482 Cr.P.C., criminal revision, transfer
application or writ petition (or supporting affidavit thereof) it
should be mentioned that no earlier application/criminal
revision/writ petition has been filed in Allahabad High Court or
Lucknow Bench against the impugned order (if any) on the same or
related cause of action or seeking the same or related relief’s, and
no such criminal revision or transfer application for the same
relief was pending in the lower court, if any such application was
pending, details of the same are to be furnished. Any substantial
omission or misstatement on these facts would result in dismissal of
the petition, imposition of costs and persecution for perjury.
(5) The
applicants/appellants/petitioner’s parentage, crime number, police
station, district, case number, court’s designation, date of
impugned order (whatever may be applicable) shall be mentioned on
the opening page of the application under Section 482 Cr.P.C.,
Criminal revision, bail application, transfer application, writ
petition or criminal appeal.”
2. Amendment in Rule 7 of Chapter XVIII.-
After the words “Before the petition of appeal or a leave
petition under Section 378 Cr.P.C. or application for revision” in
Rule 7 of Chapter XVIII of the rules “application under Section 482
Cr.P.C., application for bail, application for bail cancellation
transfer application and jail appeal” be added.
3. Amendment in Rules 27 and 31 of
Chapter XVIII.- Rules 27 and 31 of Chapter XVIII of the rules
shall be amended as follows:
27. Paper-book in criminal
Revision of Jail Appeal- Subject to Rule 25 the paper-book in
criminal revision, jail appeal, or any other case not provided for
shall, unless otherwise ordered, consist of High Court papers and
such papers on the record of the court or courts below as may be
necessary:
Provided that a typewritten
paper-book shall, subject to any orders passed by the Chief Justice,
be prepared in a case which may be heard by a Davison Bench. Copies
of legibly written papers may be prepared by photocopying in the
paper book.
Where the copy of the judgment
included in High Court papers is not in English or in the language
of the State, a translation of such judgment in English shall also
be included in the paper book.
31. Preparation of
paper-book- In all cases in which a sentence of death has been
passed or notice has been given to the accused to show cause why his
sentence should not be enhanced and the offence is one in which a
sentence of death may be passed or appeals under Section 374(2) or
under sub-section (1) or (2) Section 378 of the Code of Criminal
Procedure, 1973, a printed paper-book shall be prepared, in appeals
under sub-section (4) of Section 78 of the Code of Criminal
Procedure, 1973 and in cases covered by Rules 25,26,29 and 30 a
typed written paper book shall be prepared. Copies of legible
written papers may be prepared by photocopying in the paper book.
Where a reference has been made
by the Court of Session under Section 366 of the Code of Criminal
Procedure, 1973, for the confirmation of the sentence of death
passed by him and an appeal has also been presented by a person
convicted in the same case, a single printed paper book shall be
prepared:
Provided that no paper book
shall be prepared in case which may be heard by the Judge sitting
alone, unless specifically directed by the court.”.
4- Amendment in Chapter XXVII of the
rules.- Chapter XXVII of the rules shall be amended as under:
“Reference and Appeals under the
Income Tax Act, 1961 and other Acts including Revisions under U.P.
VAT Act etc.
1- Title of application –(1) An
Application under sub-section (2) of Section 256 of the Income Tax
Act, 1961 (hereinafter referred to in this chapter as the Act) shall
be entitled:
In the
High Court of Judicature at Allahabad, Income Tax Cases No. ........
of ....... under sub-section (2) of Section 256 of the Income Tax
Act, 1961.
........................................................................................................Applicant
Versus
.....................................................................................................Opposite
party
(2) An Appeal under
Section 260-A of the Income Tax Act, 1961, shall be titled: In the
High Court of Judicature at Allahabad. Income Tax Appeal No.
............. of ...................Under Section 260-A of the
Income Tax Act, 1961.
Versus
.........................................................................................
Opposite Party.
2- Array of parties
– In an application presented on behalf of the assessee the opposite
party shall be the commissioner of income Tax and in a application
or presented on behalf of the Commissioner of Income Tax, the
assessee.
===
English translation of Karmic Anubhag-2,
Noti. No. 18/II/81-ka-2-2012, dated June 6, 2012, published in the
U.P. Gazette, Extra., Part 4, Section (ka), dated 6th
June, 2012, pp. 2-3
In exercise of the powers
under the proviso to Article 309 of the Constitution, the Governor
is pleased to make the following rules to amending the Uttar
Pradesh Recruitment to Services (Age Limit) Rules, 1972.
1- Short title and commencement. –
(1) These rules may be called the Uttar Pradesh Recruitment to
Service (Age Limit) (Tenth Amendment) Rules, 2012.
(2) The shall come into force at once.
2- Amendment of Rule 2.- In the Uttar
Pradesh Recruitment to Services (Age Limit) Rules, 1972 for the
existing Rule 2 set out in Column 1 below, the rule as set out in
Column 2 shall be substituted, namely-
Column 1
Existing rule |
Column 2
Rule as hereby substituted |
2- Maximum
Age Limit.- The upper age limit for recruitment to all such
service and posts under the rule making power of the
Governor, for which the upper age limit is thirty-two years,
shall be thirty-five years. |
2- Maximum
Age Limit.- The upper age limit for recruitment to all such
service and posts under the rule making power of the
Governor, for which the upper age limit is thirty-two years,
shall be forty years:
Provided that where advertisement has been made before the
commencement of the Uttar Pradesh Recruitment to services
(Age Limit) (Tenth Amendment) Rules, 2012, the upper age
limit shall be as it existed before the commencement of the
said rules. |
===
English Translation of Samaj Kalyan
Anubhag-2, Noti. No. 893/XVII-2/2012-01(14)/2008, dated August 7,
2012, published in the Uttarakhand Gazette, Extra., Dated 7rd
August, 2012, pp. 1-2
In exercise of the powers
conferred by sub-section (1) of Section 7 of the Maintenance and
Welfare of Parents and Senior Citizens Act, 2007 (Central Act No. 56
Year 2007), the Governor is pleased to constitute a Maintenance
Tribunal in every sub-division for the purpose of adjudication and
deciding upon the order for maintenance under Section 5 of the said
Act.
2- The Governor is also
pleased to direct that the said Tribunal shall be presided by the
Sub-Divisional Magistrate of the concerned sub-divisions.
===
Ministry of Personnel, Public Grievances
and Pensions (Deptt. of Personnel and Training), Noti. No. G.S.R.
603(E), dated July 31, 2012, published in the Gazette of India,
Extra., Part II, Section 3(i), dated 31st July, 2012,
pp,5,8, No. 390
In exercise of the
powers conferred by Section 27 of the Right to Information Act, 2005
(22 of 2005) and in supersession of the Central Information
Commission (Appeal Procedure) Rules, 2005 and the Right to
Information (Regulation of fee and Cost) Rules, 2005 except
as respects things done or omitted to be done before such
supersession, the Central Government hereby makes the following
rules, namely—
1- Short title and
commencement. –(1) These rules may be called the Right to
Information Rules, 2012.
(2) They shall come into
force on the date of their publication in the official Gazette.
2- Definitions. – In these
rules, unless the context otherwise requires,--
(a) “Act” means the Right to information Act, 2005 (22 of 2005);
(b) “Commission” means the Central Information Commission constituted
under sub-section (1) of Section 12 of the Act;
(c) “First Appellate Authority” means an officer in the public authority
who is senior in rank to the Central Public Information Officer to
whom an appeal under sub-section (1) of Section 12 of the Act lies;
(d) “Registrar” means an officer of the commission so
designated and includes an Additional Registrar, Joint Registrar and
Deputy Registrar;
(e) “Section” means a section of the Act;
(f) All other words and expressions used herein but not defined in these
rules shall have the same meanings to them in the Act.
3- Application Fee.—An
application under sub-section (1) of Section 6 of the Act shall be
accompanied by a fee of Rupees Ten and shall ordinarily not contain
more than five hundred words, excluding Annexure, containing address
of the Central Public Information Officer and that of the applicant:
Provided that no
application shall be rejected only on the ground that it contains
more than five hundred words.
4- Fees for providing
information.—Fee for providing information under sub-section (4)
of Sections 4 and sub-section (1) and (5) of Section 7 of the Act
shall be charged at the following rates, namely—
(a)
Rupees Two for each page in A-3 or smaller size paper;
(b)
Actual cost or price of a photocopy in large size paper;
(c)
Actual cost or price for samples or models;
(d)
Rupees Fifty per diskette or floppy;
(e) Price fixed for a publication or Rupees Two per page of photocopy
for extracts from the publication;
(f) No fee for inspection of record for the first hour of inspection and
a fee of Rupees 5 for each subsequent hour or fraction thereof; and
(g) So much of postal charge involved in supply of information that
exceeds fifty rupees.
5- Exemption from Payment of
Fee.—No fee under Rule 3 and Rule 4 shall be charged from any
person who is below poverty line provided a copy of the certificate
issued by the appropriate Government in this regard is submitted
along with the application.
6- Mode of Payment of Fee.—Fees
under these rules may be paid in any of the following manner,
namely—
(a) In cash, to the public authority or to the Central Assistant Public
Information officer of the public authority as the case may be,
against a proper receipt; or
(b) By demand draft or bankers cheque or Indian Postal Order payable to
the Accounts Officer of the public authority; or
(c) By electronic means to the Accounts officer of the public authority,
if facility for receiving fees through electronic means is available
with the public authority.
7- Appointment of
Secretary to the Commission.— The Central Government shall
appoint an officer not below the rank of additional Secretary to the
Government of India as Secretary to the Commission.
8- Appeal to
the Commission.—Any person aggrieved by an order passed by the
First Appellate Authority or by non-disposal of his appeal by the
First Appellate authority, any file an appeal to the Commission in
the format given in the Appendix and shall be accompanied by the
following documents, duly authenticated and verified by the
appellant, namely—
(i) a copy of the application submitted to the Central
Public Information Officer;
(ii) a copy of the reply received, if any, from the Central Public
Information Officer;
(ii) a copy of the appeal made to the First Appellate Authority;
(iv) a copy of the order received, if any, from the First Appellate
Authority;
(v)copies of other documents relied upon by the appellant and
referred to in his appeal; and
(iv) an index of the documents referred to in the appeal.
9- Return of
Appeal.—An appeal may be returned to the appellant, if it is not
accompanied by the documents as specified in Rule 8, for removing
the deficiencies and filing the appeal complete in all respects.
10- Process
of Appeal. --- (1) on receipt of an appeal, if the commission
is not satisfied that it is a fit case to proceed with, it may,
after giving an opportunity of being heard to the appellant and
after recording its reasons, dismiss the appeal:
Provided that no appeal
shall be dismissed only on the ground that it has not been made in
the specified format if it is accompanied by documents as specified
in Rule 8.
(2) The commission shall
not consider an appeal unless it is satisfied that the appellant has
availed of all the remedies available to him under the Act.
(3) For the purposes of
sub-rule (2), a person shall be deemed to have availed of all the
remedies available to him under the Act:
(a) if he had filed an
appeal before the First Appellate Authority and the First Appellate
Authority or any other person competent to pass order on such appeal
had made a final order on the appeal; or
(b) where no final order
has been made by the First Appellate Authority with regard to the
appeal preferred, and a period of forty-five days from the date on
which such appeal was preferred has elapsed.
11- Procedure for deciding
appeals.—The Commission, while deciding an appeal may—
(i) receive oral
or written evidence on oath or on affidavit from concerned of
interested person;
(ii) peruse or
inspect document, public records or copies thereof;
(iii) inquire through
authorized officer further details of facts;
(iv) hear central
Public Information Officer, Central Assistant Public Information
Officer of the First Appellate Authority, or such person against
whose action the appeal is preferred, as the case may be;
(v) hear third
party; and
(vi) receive
evidence on affidavits from Central Public Information Officer,
Central Assistant public Information Officer, First Appellate
Authority and such other person against whom the appeal lies or the
third party.
12- Presence of the appellant before the
Commission.—(1) The appellant shall be informed of the date at
least seven clear days before the date of hearing.
(2) The appellant may be
present in person or through his duly authorises representative or
through video conferencing, if the facility of video conferencing is
available, at the time of hearing of the appeal by the Commission.
(3) Where the Commission is
satisfied that the circumstances exist due to which the appellant is
unable to attend the hearing, then, the Commission may afford the
appellant another opportunity of being heard before a final decision
is taken or take any other appropriate action as it may deem fit.
13- Presentation by the
Public Authority.—The public authority may authorize any
representative or any of its officers to present its case.
14- Service of notice by
Commission.-- The public authority may issue the notice by
name, which shall be served in any of the following mode, namely—
(i)
service by the party itself;
(ii)
by hand delivery (dasti) through Process Server;
(iii)
by registered post with acknowledgement due;
(iv)
by electronic mil in case electronic address is available.
15- Order of the
Commission.-- The order of the Commission shall be in writhing
and issued under the seal of the Commission duly authenticated by
the Registrar or any other officer authorized by the Commission for
this purpose.
APPENDIX
FORMAT OF APPEAL
(See Rule 8)
- Name and address of the appellant
- name and address of the Central Public
Information Officer to whom the application was addressed
- Name and address of the Central Public
Information Officer who gave reply to the application
- name and address of the First Appellate
Authority who decided the First Appeal
- Particulars of the application
- Particulars of the order (s) including
number, if any, against which the appeal is preferred
- Brief facts leading to the appeal
- Prayer or relief sough
- Grounds for the prayer of relief
- Any other information relevant to the
appeal
- Verification/authentication by the
appellant
=======
English translation of Nyaya Anubhag-2,
(Adhinastha Nyayalaya), Noti. No. 958/VII-Nyaya-2-2-2012-202(15)-76,
dated August 13, 2012, published in the U.P. Gazette, Extra. Part-4,
Section (Kha), dated 13th August, 2012, p.2
In Exercise of the power
under Section 4, 13 and sub-section (1) of Section 14 of the
Bengal, Agra and Assam Civil Courts Act, 1887 (Act No. XII of 1887)
and Section 5 of the Provincial Small Causes Courts Act, 1887 (Act
No. IX of 1897), read with Section 21 of the General Clauses Act,
1897 (Act No .X 1897), the Governor on the recommendation of
the High Court of Judicature at Allahabad, is pleased to create a
court of Civil judge (Junior Division) at Tehsil Lalganj Ajhara in
District Pratapgarh, with effect from the date of taking over
charge by the Presiding Officer of the said court to fix the local
limits of Jurisdiction and the place of sitting of such court and to
make the following amendment in the Schedule to Government
Notification No. A-1104/VII-710-53, dated April 12, 1956, as amended
from time to time.
AMENDEMENT
In
the Schedule to the aforesaid notification, after the entry at
Serial No. 77, the following entries shall column wise be added,
namely—
Sl
No |
Court |
Revenue area forming limits
of Jurisdiction |
Place or place of sittings |
com-
bined officer |
Title |
1 |
2 |
3 |
4 |
5 |
6 |
77-B |
Civil Judge
(JD)
Lalganj Ajhara |
The entire revenue area of
Tehsil Lalganj Ajhara in District Pratapgarh notified vide
Government Notification No.
5-2/(18)/75(332) Revenue-5,
dated January 14, 1987 |
Tehsil Lalganj Ajhara |
-- |
Civil Judge
(Junior Division)
Lalganj Ajhara
District Pratapgarh |
===
English
translation of Van Anubhag-5, Noti. No. 611/XIV-N-5-2012-07/93,
dated July 20, 2012, published in the U.P. Gazette, Extra. Part-4,
Section (Kha), dated 20 July, 2012, p.2
In exercise of the powers
conferred under sub-section (1) of Section 23 of the
Uttar Pradesh Protection of Trees
Act, 1976 (U.P. Act No. 1 of 1976) read with Section 21 of the Uttar
Pradesh General Clauses Act, 1904 (U.P. Act No. 1 of 1904), and in
supersession of the Government Notification NO. 71/XIV-3-377-76,
dated January20, 1982, No. 1057/XIV-PBV-78-7-93, dated June 5,1998,
No. 2759/XIV-PBV-2000-7-93, dated December 30, 2000 and all other
notifications issued on the subject, the Governor in public
interest, is pleased to declare that the trees of following species
shall not be felled till December 31, 2020 unless any of the trees
is dead or dying or it constitutes danger to person or property or
its feeling is necessary for executing a development work approved
by the Government and permission to fell such trees has been
obtained in writing from the competent to fell such trees has been
obtained in writing from the competent authority--
Sl. No. |
Common Name |
Botanical Name |
1 |
Neem |
Azadirachta Indica |
2 |
Mahua |
Madhuca Latifolia |
3 |
Sal |
Shorea robusta |
4 |
Pipal |
Ficus religiosa |
5 |
Bargad, Bar |
Ficus bengalenisis |
6 |
Aam (Desi, Kalmi, Tukmi) |
Mangiferea Indica |
7 |
Bija Sal |
Pterocarpus marsupium |
BACK TO INDEX
Legal Quiz
(Q.1)
;fn oDQ izkiVhZ jsUVsM gS rks mldk bfoD'ku lwV
(Eviction Suit)
flfoy dksVZ esa ykbZ
(Lie)
djsxk fd ughaA ;fn ugha rc dgkW
(Lie)
djsxk
?
Ans. The
Eviction suit of rented wakf property will lie in civil Court.
Please See-
1.
Suresh Kumar v Managing committee; 2009 Ind. Law All 1770
2.
Ramesh Govindram v. Sugra Humayun Mirza wkf; (2010) 8 SCC 726
(Q.2) Whether an
accused can be convicted applying S. 149 I.P.C. if it is not mention
in the charge?
Ans. “Omission to mention the
provision of Section 149 IPC, specially in the charge is only a
irregularity and in the absence of prejudice shown to have been
caused to accused persons, conviction is not affected.” Ram
Kirshan vs. State of Rajasthan; (1997) 7 SCC 518
It has also been
clarified in Ratan Lal & Dhiraj Lal’s India Penal Code on page 770,
that likewise if charge is framed u/s 302/149 IPC, no prejudice will
be caused if accused is convicted u/s 302 IPC simplicitor so mere
imperfection in the charge is not enough by itself for purpose of
setting aside the conviction.
(Q.3)
D;k vkns'k&15] fu;e&5] lh-ih-lh- ds v/khu izfrj{k vfUre cgl ds Lrj
ij Hkh lekIr dh tk ldrh gS?
Ans. Order 15 Rule 5 CPC confer a
discretion upon the Civil Court that if Order 15 Rule 5(1) has not
been complied with then after adopting the procedure prescribed in
sub Rule (2) the court may strike off the defence of the defendant.
This can be done at any stage of the proceeding. But the court is
not bound to strike off defence and it can refuse to do so far valid
reasons. See Vimal Chand Jain v. Gopal Agarwal; AIR 1981 SC 1657,
Smt. Leela Devi v. Smt Shanti Devi; AIR 1986 All. 90
(Q. 4) The police
are investigating a case in which a 15 years old girl committed
suicide after being pregnant after a supposed rape or consensual
sex. The I.O. has submitted an application for allowing him to get
the 5 or 6 suspects for DNA profiling for the purpose of nailing the
real Culprit. None of them has so far been arrested. I want to
know whether such an application could be allowed or not and if yes,
then under which provision or case law?
Ans. Kindly refer to your query
about DNA profiling of suspected accused of committing rape on a
minor girl. In this connection, your attention is drawn towards
Sect. 53, 53-A and 54 Cr.P.C. and you are also advised to go through
the following Supreme Court rulings on the point
1.
Smt Selvi and others v. State of Karnataka, AIR 2010 SC 1974
2.
Bhabani Prasad Jena v. Convenor Secretary, Orissa State
Commission for women and another, AIR 2010 SC 2851
(Q. 5) Which Rules
(Central Rules 2007 or State Rules 2004) will prevail for holding
age determination Enquiry of Juvenile?
Ans. Sec. 68 of the Juvenile
Justice (Care & Protection of Children) Act, 2000 provides that only
such rules made by State shall apply which conform to Central Rules.
Rule 96 of the Juvenile Justice
(Care & Protection of Children) Rules, 2007 has also declared that
until the new rules conforming to these rules are framed by the
State Government concerned u/s 68 of the Act, these rules, 2007
shall mutatis mutandis apply in that state.
It is pertinent here to mention
that U.P. Juvenile Justice (Care & Protection of Children) Rules,
2004 were made in the year 2004.
It is a settled principle that if there is a conflict
between the provisions of two similar statutes, the provisions of
subsequent enactment will ordinarily prevail over the earlier
enactment.
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