QUARTERLY DIGEST

(July-September, 2009)

Vol. XVII, Issue No. 3

CONSTITUTIONAL, CIVIL, CRIMINAL & REVENUE LAWS

(Covering important judgments of Supreme Court and Allahabad High Court)

Arbitration and Conciliation Act

Arms & Explosive

Benami Transactions (Prohibition) Act

Civil Procedure Code

Constitution of India

Consumer Protection Act

Contempt of Courts Act

Contract Act

Court Fee Act

Criminal Procedure Code

Criminal Trial

Dowry Prohibition Act

Essential Commodities Act

Evidence Act

Family Court Act

Guardians and Wards Act

Hindu Adoption and Maintenance Act

Hindu Marriage Act

Hindu Succession Act

Indian Easement Act

Indian Penal Code

Indian Succession Act

Indian Stamp Act

Interpretation of Statutes

Juvenile Justice (Care & Protection of Children) Act

Land Acquisition Act

Legal Services Authority Act

Limitation Act

Motor Vehicles Act, 1988

National Security Act

Natural Justice

NDPS Act

Practice and Procedure

Prevention of Corruption Act

Prevention of Food Adulteration Act

Probation of Offenders Act

Registration Act

SC & ST (Prevention of Atrocities) Act

Service Law

Specific Relief Act

Terrorist and Disruptive Activities (Prevention) Act

U.P. Central of Goondas Act

U.P. Consolidation of Holdings Act

U.P. Imposition of Ceiling and Land Holdings Act

U.P. Industrial Disputes Act

U.P. Land Revenue Act

U.P. Panchayat Raj Act

U.P. Provincial Small Cause Courts Act

U.P. Recruitment of Dependants of Govt. Servants Dying in Harness Rules

U.P. Stamp Rules, 1942

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

U.P.Z.A. & L.R. Act

Workmen’s Compensation Act

Words & Phrases

EDITOR-IN-CHIEF

VINAY KUMAR MATHUR

Director

  

EDITOR-IN-CHARGE

D.K. SAXENA, Additional Director (Research)  

EDITORS

P.K. SRIVASTAVA, Additional Director

SHYAM SHANKER, Additional Director (Training)

Ms. REKHA AGNIHOTRI, Dy. Director

VIKAS NAGAR, Asst. Director

RAJIV MAHESHWARAM, Asst. Director

FINANCIAL ADVISOR

S.N.RAO

Additional Director (Finance)

ASSOCIATES

B.K. MISHRA, Research Officer

  WEB ASSOCIATE

ARCHANA SHARMA, Training Officer

WEB ASSISTANCE
PRAVEEN SHUKLA, Computer Supervisor.

 

Arbitration and Conciliation Act

* S. 34 – Scope – Power of court U/s. 534 to set aside award.

It is well recognized that the jurisdiction of the court to interfere with an award of arbitrator is a limited one. The court while considering the objection against award is not obliged to reassess the evidence and to sit in conclusion of the arbitrator by re-examining and re-appreciating the evidence considered by the arbitrator as if sitting in appeal over the award. The court in dealing with the objections under Section 34 of the Act is only required to examine as to whether the award suffers from any of the vices enumerated in the aforesaid section. The court is also not empowered to substitute its own view or finding in place of the view taken or the finding recorded by the arbitrator. It cannot take upon itself the task of adjudicating the dispute which was referred to the arbitrator like an arbitrator or a court of original jurisdiction.

Therefore, the court cannot sit in appeal over the award and correct mistakes in adjudication either by reappraisal of evidence or by substituting its own finding.

It is not open for the court under Section 34 of the Act to reverse the findings in refusing the above relief and to record its own finding and to extend such relief’s as if the court was sitting in appeal or as a court of original jurisdiction or as an arbitrator. (Managing Director v. Smt. Asha Talwar; 2009(4) ALJ 397)

Arms & Explosive

* S. 17(3)(b) – Revocation of license on admission made by licensee that there was dispute between him and his pattidars and there was also “marpeet” between them was not improper.

Sub-section (3) of Section 17 of the Act deals with suspension and revocation of a license. It provides that the Licensing Authority may, by order in writing, suspend a license for such period at it thinks fit or revoke a license in case any of the contingencies contemplated in clauses (a) arises. Clause (b) of sub-section (3) of Section 17 of the Act provides that the suspension or revocation of a license may be done by the Licensing Authority if the Licensing Authority deems it necessary for the security of the public peace or for public safety to suspend or revoke the license.

The present case, as noted above, is a case of revocation/cancellation of the license. In view of the above provision, therefore, the Licensing Authority is required to reach the conclusion that revocation/cancellation of the license of the licensee is necessary for the security of the public peace or for public safety. Such conclusion is required to be reached by the Licensing Authority taking into account the relevant considerations. In case, the licensee is involved in any criminal case, the Licensing Authority may take into consideration the fact of the pendency of such criminal case including the nature of the offence/crime involved in the case as one of the relevant considerations for reaching the conclusion as to whether revocation of the license of the licensee is necessary or not.

Admission of petitioner that there was dispute between him and his pattidars and there was also ‘marpeet’ between them taken into consideration to arrive at conclusion that revocation was necessary for maintenance of public peace, order of revocation, not improper. (Sunil Singh v. State of U.P. & Ors.; 2009(5) ALJ 226)

Benami Transactions (Prohibition) Act

* S. 4 – Bar of applicability – Not to apply retrospectively

The Counsel, who appeared for the appellants, submitted that the High Court had erroneously held that the provisions of the Benami Transactions (prohibition) Act, 1988, had been given retrospective effect and would, therefore, apply to the instant case. He urged that since the suit had been filed on 5.1.1987 and the Act had come into force thereafter on 5.9.1988, the same would have no application to the suit and the parties were entitled to prove their ownership of the suit properties on leading evidence, such as payment of rates and taxes, in support thereof. Mr. Dhawan submitted that the very fact that the Respondent No. 1 herein had not taken any steps to claim title over the properties in question for about 30 years, clearly indicated that the suit had been filed as an after-thought and with the intention of taking a chance to take possession of the suit properties.

In support of his submission that the bar of section 4 of the Benami Transactions Act would not apply retrospectively, Mr. Dhawan referred to and relied on the decision of a Three Judge Bench of the Court in the case of R. Rajagopal Reddy (dead) by L.Rs. and others v. Padmini Chandrasekharan (dead) by L.Rs., wherein the same proposition was considered and accepted. Mr. Dhawan submitted that the High Court had committed a serious error in applying the provisions of the above Act and also relying on the Agreement (Exhibit PW 3/3), which was said to have been executed by Mr. Ram Aggarwal and Dharam Pal. It was submitted that the judgment and order of the High Court was not sustainable and was liable to be set aside.

On behalf of Respondent No. 1, it was conceded by Mr. Dhruv Mehta, learned Advocate, that since the suit had been filed on 5th January, 1987 and the Benami Transactions (Prohibition) Act, 1988, came into force subsequently on 5th September, 1988, the provisions of the Act would have no application to the suit.

Of the two points urged by Mr. Dhawan, since the first point regarding the applicability of the Benami Transactons (prohibition) Act, 1988, to the suit has been conceded on behalf of the Respondent No. 1 in favour of the appellants, the same need not detain the court, except to state that the Trial Court, the First Appellate Court and the High Court had erred in applying the provisions of the Act to the suit since it had been filed prior to the coming into effect of the Act.

Courts are inclined to agree with Mr. Mehta that de hors the question of the applicability of the Benami Transactions (prohibition) Act, 1988, the Courts below had rightly held that the Respondent No. 1 was the owner of the suit properties relying on the documentary and oral evidence adduced by him including Exhibit PW 3/3 executed by the appellants and theRespondent No. 1 which was proved by Audhiya Parshad as mentioned in the judgment of the Trial Court.

Consequently even while holding that the Courts below, including the High Court, had erred in applying the provisions of the Benami Transactions (Prohibition) Act, 1988. (Vijay Kumar and Another v. Dharam Pal and Others; 2009(108) RD 93)

Civil Procedure Code

* S. 2 (2) – ‘Decree’ – What constitutes.

The Court finds that the court below had earlier decreed the suit for partition in equal shares. The Court below has now accepted the Amin’s report and rejected the objection of the petitioner and the share has now been demarcated. Consequently, there has been adjudication between the parties. The rights of each party have been determined and such determination is conclusive in nature. The Court below has directed that a final decree be prepared which amounts to a formal expression of such adjudication. In the light of the aforesaid, the Court is of the opinion that the order of the trial court is a decree within Section 2(2) of the CPC and consequently, appealable. (Smt. Uma Devi v. Smt. Chandra Devi & Ors.; 2009(4) ALJ 269)

* S. 11 – Res-judicata – Issue of res-judicata should be decided as preliminary issue provided other essential conditions of O. 14, R. 2(2), (as to whether on a decision upon issue of res-judicata case or any part thereof may be disposed of finally), is also satisfied.

The issue of res judicata should be decided as preliminary issue provided other essential condition of Order 14,Rule 2(2), as to whether on a decision upon issue of res judicata the case or any part thereof may be disposed of finally, is also satisfied. It is upon the concerned court to examine that on decision upon the issue of res judicata as preliminary issue, the entire case or any part thereof shall be disposed of finally or not. It will depend upon the facts and circumstances of the each individual case and no hard and fast rule can be laid down in this regard. Therefore, it is necessary for the court concerned to examine as to whether while deciding the issue of res judicata in a particular suit or case the entire case or any part thereof may be disposed of or not and after such assessment if the concerned court forms an opinion that entire case or any part thereof may be disposed of by deciding the issue of res judicata involved in the case concerned, only in that event of the matter the concerned court is under legal obligation to decide the issue of res judicata as preliminary issue first by postponing the settlement of other issue otherwise it is not under obligation to decide such issue as preliminary issue first but such opinion of the court should be based on objective material on record and should not be based on mere whims. (M/s. K.G. Plasto Chem (I) Private Ltd. v. M/s. Tulison Industrial (machines) Pvt. Ltd. & Ors.; 2009(4) ALJ 251)

* Ss. 24 & 104 – Order passed on transfer application not made appeablable under any provision of CPC including S. 104 of CPC.

Undisputedly, an order passed on an application under section 24, CPC has not been made appealable under any provision of the CPC including section 104, CPC Right to appeal is not inherent unless it is specifically provided by the statute. Since the Code of Civil Procedure does not specifically provide for an appeal against an order passed on a transfer application and at the same time by implication excludes an appeal against such an order by virtue of section 105, CPC therefore, merely for the reason Rule 5 Chapter VIII of the Rules of the Court, 1952 is silent in this regard it would not confer jurisdiction of appeal. If any contrary interpretation is made and the appeal is held to be maintainable it would amount to conferring jurisdiction of appeal which otherwise is not specifically provided but is expressly as well as by implication excluded by section 105, CPC. Thus, in the above scenario the right of special appeal as contemplated by Rule 5 Chapter VIII of the Rules of the Court, even though the same is independent to the provisions of CPC, against the order of the Single Judge passed on a transfer application under section 24, CPC stands impliedly excluded.

It is for this reason that a tradition in the Court has always been not to file an appeal against an order either allowing or rejecting an application under section 24, CPC passed by the District Judge or a Single Judge of the Court. Where an order is passed under section 24, CPC by the District Judge the aggrieved party either moves a fresh application or challenges before the High Court in exercise of supervisory powers under Article 227 of the Constitution of India. Similarly, where an order is passed by the learned Single Judge under section 24, CPC either a fresh application is moved before the Supreme Court under section 25, CPC or the matter is taken up under Article 136 of the Constitution of India. (Amit Khanna v. Smt. Suchi Khanna; 2009(107) RD 800)

* S. 89 – Settlement before mediation centre in divorce case – Terms of settlement are binding on parties and family court directed to decide pending case in terms of settlement.

(Rohit Ahuja v. Additional Principal Judge, Family Court, Lucknow & Anr.; 2009(4) ALJ (NOC) 707)

* S. 152 – Scope of – A genuine and bonafide mistake can be corrected in exercise of power under Section 152.

Mistake in respect of Khasra Number. Since the mistake was clerical in nature and the appellant being not responsible for the said clerical mistake which had occurred due to wrong recording of Khasra Number in Khasra Girdawari, the court finds no reason as to why such a genuine and bona fide mistake cannot be allowed to be corrected by exercising the powers under section 152 of the CPC. In K. Rajamouli v. A.V.K.N. Swamy; 2002(47) ALR 31 (SC)=2001 (5) SCC 37, the Court held as follows:-

“Section 152 provides that a clerical or arithmetical mistake in judgments, decrees or orders or errors arising therein from any accidental slip or omission may at any time be corrected by the Court either of its own motion or on the application of any of the parties.” (Tilak Raj v. Baikunthi Devi; 2009(107) 460)

* O. 6, R. 17 – Additional relief of mense profit/damages claimed by way of amendment – Maintainability.

Learned Counsel for the revisionist has not denied that the suit is not governed by Order XX Rule 12 of CPC. The provisions of aforesaid Order XX Rule 12 are fully applicable in the matter. The plaintiffs initially alongwith the prayer for the possession of the immovable property also claimed mesne profit which had accrued on the property for the period prior to the institution of the suit. Since, the plaintiffs had claimed a relief for possession and mesne profits as contemplated by Order XX Rule 12, therefore, the court below was empowered to grant future mesne profit also, even, if it was not claimed by the plaintiffs. The court has only to see whether the case of the plaintiff is governed by Order XX Rule 12 of CPC. In case, if it is applicable, court is fully empowered to grant future mesne profit also. Since the suit is fully governed by the provisions of Order XX Rule 12 of CPC, therefore, the question with regard to the limitation (to incorporate additional relief as sought by the plaintiff) and applicability of proviso Order VI Rule 17 of CPC does not lie.

In the present case, the suit is governed by Order XX Rule 12 of CPC and the court has been empowered to grant future mesne profit. In the case of Muni Lal (supra) the amendment was sought under Order VI Rule 17 to incorporate consequential relief in the Appellate Court. The said case was not governed by Order XX Rule 12 of CPC as such the revisionist cannot claim any assistance from the said case, particularly in view of the several decisions of the Apex Court where the question of limitation was considered and was held that the application for amendment of the pleadings should not be disallowed merely because it is opposed on the ground, that the same is barred by limitation. On the contrary application has to be considered bearing in mind the discretion i.e. vested with the Court in allowing or disallowing such amendment in the interest of justice.

The revisionist has not laid down any valid foundation to his argument, it has been spun around thin air and it is difficult to uphold the contention of the revisionist. No fault can be found with the approach adopted by the court below. The court below has assigned cogent, convincing and satisfactory reasons to allow the amendment application of the plaintiff. Argument of the revisionist has no substance and is wholly untenable and erroneous.  (M/s. Banwari Lal Associaiton Pvt. Ltd. v. M/s. Basanti Devi Family Trust, Ghaziabad & Ors.; 2009(5) ALJ 328)

* O. 8, R. 10 – Failure to file written statement – Effect of.

Order 8, Rule 10 CPC is the procedure when the party fails to present written statement. The Court can then make an order as it thinks fit because non-filing of written statement and proceeding under Rule 10 CPC would be akin to a defence struck out. The requirement under this rule would be for the Court to see that even if the facts detailed in the plaint are deemed to be admitted a judgment can be passed against the defendant without any proof of the facts contained in the plaint. If the facts in the plaint itself disclose a factual controversy then the Court has to proceed cautiously and exercise its discretion to require the plaintiff to prove such factual controversy. (Handloom Weavers Society v. Special Additional District Judge, Sitapur & Ors.; 2009(4) ALJ 693)

* O. 17, R. 2 – Refusal to grant adjournment – Validity of.

In the present case insofar as the application for adjournment is concerned the Court was not satisfied with the reason given therein for non-filing of the written statement, for the very same reason the Court had earlier imposed costs while granting adjournment on 3 earlier occasions for filing the written statement and the costs had not been deposited/paid by the petitioner. Order 17, Rule 1 CPC enables the court to grant adjournment if sufficient cause is shown. The proviso provides that no such adjournment shall be granted more than three times. The provisions of the Code are procedural in nature hence the Court in its inherent power can grant further adjournment for valid reasons. But refusing further adjournment cannot entitle a litigant to say that the refusal is illegal particularly when while refusing further adjournment the Court has recorded reasons for the same. In this case the Court found that on three previous occasions adjournment had been granted for filing written statement on payment of costs. Neither the written statement was filed nor were the costs imposed paid. In Rule 2 of Order 17 CPC the Court is empowered to impose costs for granting adjournment and Clauses (c) and (d) relate to circumstances when adjournment is sought on the ground of counsels inability to appear. Therefore, the refusal to adjourn the suit further at the instance of a defendant who had not filed his written statement nor paid the costs cannot be held to be illegal particularly when prior to the three adjournments the court had allowed the application of the defendant and had set aside the ex parte decree.  (Handloom Weavers Society v. Special Additional District Judge, Sitapur & Ors.; 2009(4) ALJ 693)

* O. XVIII, R. 17 – Purpose of

Though the provisions of Order XVIII, Rule 17 CPC have been interpreted to include applications to be filed by the parties for recall of witnesses, the main purpose of the said rule is to enable the Court, while trying a suit, to clarify any doubts which it may have with regard to the evidence led by the parties. The said provisions are not intended to be used to fill up omissions in the evidence of a witness who has already been examined. As indicated by the learned Single Judge, the evidence not being sought to be introduced by recalling the witness in question, as available at the time when the affidavit of evidence of the witness was prepared and affirmed. It is not as if certain new facts have been discovered subsequently which were not within the knowledge of the applicant when the affidavit of evidence was prepared. In the instant case, Sadanand Shet was shown to have been actively involved in the acquisition of the flat in question and, therefore, had knowledge of all the transactions involving such acquisition. It is obvious that only after cross-examination of the witness that certain lapses in his evidence came to be noticed which impelled the appellant to file the application under Order XVIII, Rule 17, CPC. Such a course of action which arises before Court in the fact situation of this case, does not make out a case for recall of a witness after his examination has been completed. The power under the provisions of Order XVIII, Rule 17 CPC is to be sparingly exercised and in appropriate cases and not as a general rule merely on the ground that his recall and re-examination would not cause any prejudice to the parties. That is not the scheme of intention of Order XVIII, Rule 17 CPC.

Court has further held that it is now well settled that the power to recall any witness under Order XVIII, Rule 17 CPC can be exercised by the Court either on its own motion or on an application filed by any of the parties to the suit, but as indicated hereinabove, such power is to be invoked not to fill up the lacunae in the evidence of the witness which has already been recorded but to clear any ambiguity that may have arisen during the course of his examination. (Vadiraj Naggappa Vernekar (Dead) Through LRs. V. Sharad Chand Prabhakar Gogate; 2009(107) RD 770)

* O. 21, R. 99 – Applicability of this provision is not attracted in case of eviction suit filed under U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act.

In case of eviction suit application of a third party seeking independent right is maintainable under section 23 of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act and if special Act provides manner of eviction then provisions contained under Rule 99, of Order 21 are not attracted and also because object of Act is different than regular suit filed under Code of Civil Procedure and nature of enquiry of right under Act is altogether different than Code of Civil Procedure. Under Code of Civil Procedure, there is complete procedure prescribed for filing suit, written statement, framing of issues and leading of evidence etc., whereas under Act only few provisions of Code of Civil Procedure have been adopted and the provisions contained under Order 21, Rules 97, 99 are not amongst those provisions therefore also application under Order 99 would not be maintainable. (Rajan Bhatia v. Smt. Zohra Begum & Anr.; 2009(5) ALJ 297)

* O. 39, R. 1 – Temporary injunction grant of.

Ordinarily the trial courts are reluctant to grant injunction even if prima-facie case is made out. Such an attitude on the part of the judicial officers shall shake the people’s faith in the administration of justice and the people will choose alternative forum to ventilate their grievance. Whenever all the three conditions were satisfied or the facts and circumstances of a case require interference then the courts must grant temporary injunction on equitable ground. In the present case, involvement of police even after filing of the suits and compelling the parties to enter into an agreement is sufficient ground to pass appropriate order or grant temporary injunction to meet the ends of justice. Injunction should not have been refused by the court below when the facts brought to its notice that an unregistered compromise was written at the police station and the parties were directed to sign the same. At least, appellate court should have taken note of the fact but it appears that because of paucity of knowledge and being not acquainted with the various pronouncements of the Court and Hon’ble Supreme Court, the appellate court decided the appeal casually and failed to exercise jurisdiction vested in it.

Both sides claim that they are in possession of the land in question. Keeping in view the facts and circumstances of the case, it shall be appropriate that parties must maintain status quo during the pendency of the suit in question and they are restrained from changing the nature of the suit properly. (Dharamraj alias Dharmu Yadav v. The District Judge, Ambedkar Nagar & Ors.; 2009 (4) ALJ 593)

* O. 39, R. 1, 2 & 2-A – Order of injunction – A direction to pay money either by way of final or interim order, is not considered to be an injunction, an application against its disobedience U/O. 39, R. 2-A would not be maintainable.

An interim direction to a defendant in a suit by the creditor against the landlords/borrowers, to deposit the arrears of rent in court and to continue to deposit the rents in court with a condition that the tenant will have to pay interest if the rent was not so deposited, cannot be considered to be an order of ‘injunction’. In a general sense, though every order of a court which commands or forbids is an injunction, but in its accepted legal sense, an injunction is a judicial mandate operating in personam by which, upon certain established principles of equity, a party is required to do or refrain from doing a particular thing.

Already noticed that the application by the bank, on which the said order dated 27.5.1996 was passed, was, neither under Rule 1 nor under Rule 2 of Order 39 CPC and none of the ingredients required for an application under either Rule 1 or Rule 2 of Order 39 existed was found in the application by the bank. As the order dated 27.5.1996 was neither under Rule 1 or 2 of Order 39, the application under Rule 2A of Order 39 was not maintainable.

If a garnishee, or a defendant, who is directed to pay any sum of money, does not pay the amount, the remedy is to levy execution and not in an action for contempt or disobedience/breach under Order 39, Rule 2A. This is evident from Rule 46B of Order 21 read with Rule 11A of Order 38 of the Code. Contempt jurisdiction, either under the Contempt of Court Act, 1971, or under Order 39, Rule 2A of the Code, is not intended to be used for enforcement of money decrees or directions/orders for payment of money. The process and concept of execution is different from process and concept of action for disobedience/contempt. (Food Corporation of India v. Sukha Deo Prasad; 2009(4) ALJ 377)

* O. XL, R. 1 – Appointment of receiver – Receiver to be appointed, when it is just and convenient.

            A receiver, having regard to the provisions contained in Order XL, Rule 1 of the Code of Civil Procedure, is appointed only when it is found to be just and convenient to do so.

Appointment of a receiver in a pending suit is a matter which is within the discretionary jurisdiction of the Court. Ordinarily the Court would not appoint a receiver (save and) except on a prima facie finding that the plaintiff has an excellent chance of success in the suit. It is also for the plaintiff not only to show a case of adverse and conflicting claims of property but also emergency, danger or loss demanding immediate action. Element of danger is an important consideration. Ordinarily, a receiver would not be appointed unless a case has been made out which may deprive the defendant of a de facto possession. For the said purpose, conduct of the parties would also be relevant. (Parmanand Patel (Dead) through LRs. & Another v. Sudha A. Chowgule & Others; 2009(107) RD 80)

* Revenue Entries – Forged – Consequence of

If the entries in the revenue record are fictitious or forged then not only entry is liable to be corrected and person whose name is recorded is liable to be evicted forthwith vide Hari Ram v. Collector; 2004(2) RD 360, and he may also be saddled with the liability of paying good damages for the period for which he remained in possession (Minimum Rs. 10,000 per hectare per year). Criminal proceedings may also be launched against him. However, the sin-qua-non for all these things is opportunity of hearing. (Smt. Kunti & Others v. Commissioner, Meerut Division, Meerut & Others; 2009 (107) RD 405)

Constitution of India

* Art. 14 – Purpose of – Principles of Natural Justice – To prevent miscarriage of justice.

Natural justice is the essence of fair adjudication, deeply rooted in tradition and conscience, to be ranked as fundamental. The purpose of following the principles of natural justice is the prevention of miscarriage of justice. (Uma Nath Pandey & Ors. v. State of U.P. & Anr.; 2009(4) ALJ 515)

* Art. 14 – Natural Justice – This rule can be implied from nature of duty.

Concept of natural justice has undergone a great deal of change in recent years. Rules of natural justice are not rules embodied always expressly in a statute or in rules framed thereunder. They may be implied from the nature of the duty to be performed under a statute. What particular rule of natural justice should be implied and what its context should be in a given case must depend to a great extent on the facts and circumstances of that case, the frame-work of the statute under which the enquiry is held.

Expression ‘civil consequences’ encompasses infraction of not merely property or personal rights but of civil liberties, material deprivations, and non-pecuniary damages. In its wide umbrella comes everything that affects a citizen in his civil life. (Uma Nath Pandey & Ors. v. State of U.P. & Anr.; 2009(4) ALJ 515)

* Art. 16 – Transfer – If transfer order passed in administrative exigency and interest of department then no interference is warranted.

It would be appropriate at this stage to reproduce caution in the words of the Apex Court as expressed in Gobardhan Lal as under:

“A challenge to an order of transfer should normally be eschewed and should not be countenanced by the Courts or Tribunals as though they are Appellate Authorities over such orders, which could assess the niceties of the administrative needs and requirements of the situation concerned. This is for the reason that Courts or Tribunals cannot substitute their own decisions in the matter of transfer for that of competent authorities of the State and even allegations of mala fide when made must be such as to inspire confidence in the Court or are based on concrete materials and ought not to be entertained on the mere making of it or on consideration borne out of conjectures or surmises and except for strong and convincing reasons, no interference could ordinarily be made with an order of transfer. (Jitendra Singh v. State of Uttar Pradesh; 2009(4) ALJ 372)

* Art. 19(1)(b)(a)(d) and (21), (3)(5) – Bandh or strike/Hartal – ‘Bandh’ – What is – Determination of

            The issue involved in this case was raised before the High Court of Kerala and a Full Bench of the Court in Bharat Kumar K. Palicha v. State of Kerala; AIR 1997 Ker 291, declared that giving of call for bandh and its enforcement by any association, organization or political party was illegal and unconstitutional.

            Against the said judgment in Bharat Kumar case, the matter was brought to the Court in Communist Party of India (M); AIR 1998 SC 184, and while granting leave, the Court in para 3 approved the law laid down by the Kerala High Court. The Court observed that the reasoning given by the High Court, particularly in paras 12, 13 and 17 for the ultimate conclusion and directions in para 18, was correct and Their Lordships were in agreement with the same. It was further observed that the High Court had drawn a very appropriate distinction between the bandh on the one hand and strike/hartal on the other. Specifically, it was stated in the judgment that Their Lordships were in agreement with the view taken by the High Court.

            The aforesaid para 3 in Communist Party of India (M) runs thus:

“On a perusal of the impugned judgment of the High Court, referring to which learned counsel for the appellant pointed out certain portion, particularly in paras 13 and 18 including the operative part in support of their submissions, the court finds that the judgment does not call for any interference. The court is satisfied that the distinction drawn by the High Court between a ‘Bandh’ and a call for general strike or ‘Hartal’ is well made out with reference to the effect of a ‘Bandh’ on the fundamental rights of other citizens. There cannot be any doubt that the fundamental rights of the people as a whole cannot be subservient to the claim of fundamental right of an individual or only a section of the people. It is on the basis of this distinction that the High Court has rightly concluded that there cannot be any right to call or enforce a ‘Bandh’ which interferes with the exercise of the fundamental freedoms of other citizens, in addition to causing national loss in many ways. The court may also add that the reasoning given by the High Court, particularly those in paras 12, 13 and 17 for the ultimate conclusion and directions in para 18 is correct with which court is in agreement. The Court may also observe that the High Court has drawn a very appropriate distinction between a ‘Bandh’ on the one hand and a call for general strike or ‘Hartal’ on the other. The court is in agreement with the view taken by the High Court.”

(All India Anna Dravida Munnetra Kazhagam v. Chief Secretary, Government of Tamil Nadu and Others; (2009) 2 SCC (Cri) 703)

* Art. 19(1)(a) to (c) and (2) to (4) and 32 – Agitations, Bandhs, Hartals etc. resulting in large – Scale destruct in of public and private properties – Detailed guidelines for assessment of, laid down.

            The basic principles as suggested by Nariman Committee are appropriate.

In the absence of legislation the following guidelines are to be adopted to assess damages:

(I)        Wherever a mass destruction to property takes place due to protests or thereof, the High Court may issue suo motu action and set up a machinery to investigate the damage caused and to award compensation related thereto.

(II)       Where there is more than one State involved, such action may be taken by the Supreme Court.

(III)      In each case, the High Court or the Supreme Court, as the case may be, appoint a sitting or retired High Court Judge or a sitting or retired District Judge as a Claims Commissioner to estimate the damages and investigate liability.

(IV)      An assessor may be appointed to assist the Claims Commissioner.

(V)       The Claims Commissioner and the assessor may seek instructions from the High Court or the supreme Court as the case may be, to summon the existing video or other recordings from private and public sources to pinpoint the damage and establish nexus with the perpetrators of the damage.

(VI)      The principles of absolute liability shall apply once the nexus with the event that precipitated the damage is established.

(VII)    The liability will be borne by the actual perpetrators of the crime as well as the organizers of the event giving rise to the liability-to be shared, as finally determined by the High Court or the Supreme Court as the case may be.

(VIII)  Exemplary damages may be awarded to an extent not greater than twice the amount of the damages liable to be paid.

(IX)      Damages shall be assessed for

(a) damages to public property;

(b) damages to private property;

(c) damages causing injury or death to a person or persons; and

(d) cost of the actions by the authorities and police to take preventive and other actions.

(X)      The Claims Commissioner should make a report to the High Court or the Supreme Court which would determine the liability after hearing the parties.

The recommendations of the Thomas Committee and the Nariman Committee mentioned herein which have the approval of the Supreme Court shall immediately become operative. They shall be operative as guidelines. (Destruction of Public and Private Properties, In Re v. State of Andhra Pradesh and Others; (2009) 2 SCC (Cri) 629)

* Art. 129 – Power of Supreme Court to punish for civil contempt of itself – Scope.

            Section 2(b) and (c) of the Contempt of Courts Act, 1971 Act which define civil and criminal contempt read as under:

“2(b) ‘civil contempt’ means willful disobedience to any judgment, decree, direction, order, writ or other process of a court or willful breach of an undertaking given to a court;

(c) ‘criminal contempt’ means the publication (whether by words, spoken or written, or by signs, or by visible representations, or otherwise) of any matter or the doing of any other act whatsoever which-

(i)         scandalizes or tends to scandalize, or lowers or tends to lower the authority of any court; or

(ii)        prejudices, or interferes or tends to interfere with, the due course of any judicial proceeding; or

(iii)       interferes or tends to interfere with, or obstructs or tends to obstruct, the administration of justice in any other manner.”

            An analysis of Section 2(b) of the 1971 Act shows that willful disobedience to any judgment, decree, direction, order, writ or other process of a court or willful breach of an undertaking given to a court constitutes civil contempt. If this definition is read with Article 129 of the Constitution of India, it becomes clear that being a court of record, the court can punish a person for civil contempt if it is found that he has willfully disobeyed any judgment, etc. or violated an undertaking given to the Court. (All India Anna Dravida Munnetra Kazhagam v. L.K. Tripathi and Others; (2009) 2 SCC (Cri) 673)

* Art. 194 – Powers and privileges of member of State Legislature – MLA has no right to vote or participate in proceedings of Assembly while he is detained in prison.

A person lawfully detained in prison does not loose all his fundamental rights which he otherwise possesses. However, there are several natural consequences which flow from his detention. Right to life guaranteed under Article 21 of the Constitution is available to detenue also, but right to practice ones profession stands stripped when a person is detained in prison. When an ordinary person who is detained in prison is denied his right to vote, then the MLA who is detained in prison on criminal charges cannot claim any superior right to participate in the sessions of assembly and to cast his vote. The plea that in case the MLA is not permitted to participate in the proceedings of the assembly then his constituency shall remain unrepresented is not tenable. Non-participation in the proceedings of the assembly by the petitioner (MLA) is a natural consequence of his detention in prison on criminal charges. Right of participation in the proceedings of the assembly by a member and the privileges in the assembly given to members are rights and privileges of those members who are participating in the proceedings. When the petitioner is detained in prison by lawful order, he cannot claim a writ of mandamus permitting him to participate in the proceedings of the Assembly. (Shekher Tiwari v. State of U.P. & Ors.; 2009(5) ALJ 313)

* Art. 226 – Excise of revisional-cum-supervisory power permissible only in exceptional cases.

The High Court in the exercise of its revisional-cum-supervisory power cannot go into the intricate details of facts and decide the questions raised therein. However, in exceptional cases such orders which are based on perversity and arbitrariness could be interfered with by the High Court. (Gurjar Singh & Ors. v. Deputy Director, Consolidation & Ors.; 2009(4) ALJ 573)

* Art. 226 – Delay and laches – Writ petition once admitted cannot be thrown out on ground of delay and laches.

After perusal of the record, the court find that the petition has already been admitted by the Court by means of an order dated 10.10.2002 and the Court proceeded to pass interim order on the same very date. Therefore, in the light of the decision of the Hon’ble Supreme Court cited on this point, the Court is of the view that the delay in filing the writ petition is liable to be condoned and now at this stage, the present petition cannot be thrown out on this very point. Thus, the objection raised by the opposite party against the maintainability of the writ petition on the ground of delay is hereby overruled. (Krishna Baldeo & Ors. v. State of U.P. & Ors.; 2009(4) ALJ 81)

* Art. 300-A – Right to hold property though not a fundamental right, is a constitutional as well as Human Rights.

It must also be borne in mind that right to hold property, although no longer a fundamental right, is still a constitutional right. It is a human right. (Aslam Mohammad Merchant v. Competent Authority and Others; (2009) 2 SCC (Cri) 793)

* Art. 311 – U.P. Fundamental Rules – Rule 56 – Order for compulsory retirement passed by competent authority on the basis of three adverse entries would not be arbitrary – No interference.

It would also be useful to refer certain principles in respect to compulsory retirement, culled out by the Hon’ble Apex Court in Baikunth Nath Das and another v. Chief District Medical Officer Baripada and another; 1992(2) SCC 299 = AIR 1992 SC 1020, which have been reiterated in State of Gujarat v. Umed Bhai M. Patel; AIR 2001 SC 1109:

“(i)       When the services of a public servant are no longer useful to the general administration, the officer can be compulsorily retired for the sake of public interest.

(ii)        Ordinarily, the order of compulsory retirement is not to be treated as a punishment coming under Article 311 of the Constitution.

(iii)       For better administration, it is necessary to chop off dead-wood, but the order of compulsory retirement can be passed after having due regard to the entire service record of the officer.

(iv)       Adverse entries made in the confidential record shall be taken note of can be given due weightage in passing such order.

(v)        Even uncommunicated entries in the confidential record can also be taken into consideration.

(vi)       The order of compulsory retirement shall not be passed as a short cut to avoid departmental enquiry when such course is more desirable.

(vii)      If the officer is given a promotion despite adverse entries made in the confidential record that is a fact in favour of the officer.

(viii)     Compulsory retirement shall not be imposed as a punitive measure.”

In the case in hand it is not disputed that the petitioner appellant earned three adverse entries which has been considered by the competent authority while passing the order of compulsory retirement under Fundamental Rule 56. It thus cannot be said that there was no material or the decision taken by competent authority is arbitrary or based on no material on record. The Court, therefore, do not find any fault with the view taken by the Hon’ble Single Judge that the petitioner appellant deserves no relief and the writ petition is liable to be dismissed. (Kishori Lal Raman Sarswat v. State of U.P. & Ors.; 2009(4) ALJ 213)

* Art. 311 – U.P. Temporary Govt. Servants (Termination of Service) Rules – R. 3 – Termination of services – Termination of temporary services of constable on ground that he had concealed vital facts regarding submission of charge-sheet against him – Not improper.

Rule 3 of Rules 1975 clearly provides that service of the Government servant in temporary service shall be liable to termination at any time by notice in writing either given by the Government servant to the appointing authority or by the appointing authority to the Government servant.

The impugned order is clearly in conformity with the provisions of Rule 3 of Rules 1975 and in light of the decision of the Apex Court, referred to above the order of termination cannot be said to be by way of punishment. It was an order simplicitor in accordance with the Rule and no opportunity was required to be given to the petitioner before terminating his services. The petitioner was admittedly recruited as a temporary constable and as per conditions mentioned in the advertisement he was not selected against the clear vacancy as para 14(4) of the advertisement clearly provides that the recruitment is temporary and in the event of any vacancy the appointment will be considered.

In view of the above it is quite clear that the petitioner was recruited temporarily, therefore, he has no lien to the post and his services have been rightly terminated under the provision of Rules 1975. (Mohammad Gayasuddin v. State of U.P. & Ors.; 2009(4) ALJ 243)

* Articles 341 & 342 – Power to declare sub-caste of a caste vested only in Parliament, neither State Government nor the High Court is competent to declare.

The Hon’ble Supreme Court in the case of Sudhakar Vithal Kumbhare v. State of Maharashtra and Others; 2004(54) ALR 602 (SC), as held that neither the State Government nor the Hon’ble High Court has any authority of law to declare any caste to be a sub caste of a Caste notified in the list referable to sections 341/342 of the Constitution of India. It has been explained that any amendment in the list including that pertaining to inclusion of sub-caste, can be made only under an Act of Parliament. (Jitendra v. State of U.P. & Others; 2009(108) RD 18)

Consumer Protection Act

* S. 2 – Medical Negligence – Consideration of

The consent given by the complainant for the excision biopsy cannot, by inference, be taken as an implied consent for a surgery (save in exceptional cases), as held by the Court in Samira Kohli v. Dr. Prabha Manchanda & Anr.; (2008) 2 SCC 1. the two issues which are relevant for the purpose of the court and raised before the Bench were:

(i) Whether informed consent of a patient is necessary for surgical procedure involving removal of reproductive organs? If so, what is the nature of such consent?

(ii) When a patient consults a medical practitioner, whether consent given for diagnostic surgery can be construed as consent for performing additional or further surgical procedure – either as conservative treatment or as radical treatment – without the specific consent for such additional or further surgery?

These two questions were answered in the following terms:

“Consent in the context of a doctor-patient relationship, means the grant of permission by the patient for an act to be carried out by the doctor, such as a diagnostic, surgical or therapeutic procedure. Consent can be implied in some circumstances from the action of the patient. For example, when a patient enters a dentist’s clinic and sits in the dental chair, his consent is implied for examination, diagnosis and consultation. Except where consent can be clearly and obviously implied, there should be express consent. There is, however, a significant difference in the nature of express consent of the patient, known as “real consent” in UK and as “informed consent” in America. In UK, the elements of consent are defined with reference to the patient and a consent is considered to be valid and “real” when (i) the patient gives it voluntarily without any coercion; (ii) the patient has the capacity and competence to give consent; and (iii) the patient has the minimum of adequate level of information about the nature of the procedure to which he is consenting to. On the other hand, the concept of “informed consent” developed by American courts, while retaining the basic requirements of consent, shifts the emphasis on the doctor’s duty to disclose the necessary information to the patient to secure his consent. “Informed consent” is defined in Taber’s Cyclopedic Medical Dictionary thus:

“Consent that is given by a person after receipt of the following information: the nature and purpose of the proposed procedure or treatment; the expected outcome and the likelihood of success; the risks; the alternatives to the procedure and supporting information regarding those alternatives; and the effect of no treatment or procedure, including the effect on the prognosis and the material risks associated with no treatment. Also included are instructions concerning what should be done if the procedure turns out to be harmful or unsuccessful.”

The next question is whether in an action for negligence/battery for performance of an unauthorized surgical procedure, the doctor can put forth as defence the consent given for a particular operative procedure, as consent for any additional or further operative procedures performed in the interests of the patient.

It is clear from the evidence in the case before the Court that there was no urgency in the matter as the record shows that discussions for the deferment of the proposed excision biopsy had taken place between the complainant, his parents and Dr. Satyanarayana in the OPD and the consent for the procedure had been obtained. Also in the light of the observations in the cited cases, any implied consent for the excision of the tumour cannot be inferred.

Court has further held that mere misjudgment or error in medical treatment by itself would not be decisive of negligence towards patient and the knowledge of medical practice and procedure available at the time of the operation and not at the date of trial, is relevant. It is also evident that a doctor rendering treatment to a patient is expected to have reasonable competence in his field. (Bolam’s principle). It is the case of the complainant that it is the lack of care and caution and the neglect on the part of the attending doctors, and Dr. Satyanarayana in particular, to make the necessary pre-operative investigations that had led to the complications at the time of the operation and thereafter. (Nizam’s Institute of Medical Sciences v. Prasanth S. Dhananka & Ors.; 2009(4) ALJ 549)

* S. 2(e), (d) & (o) – Complaint – What constitutes? – Consumer – Public auction of existing cities – Purchaser/Leasee is not “consumer” – Service provider – Who is.

A ‘complaint’ is maintainable before a consumer forum under the Consumer Protection Act, 1986, by a ‘complainant’ (‘consumer’ or others specified) against a ‘trader’ or ‘service provider’. The terms ‘complainant’ ‘complaint’ ‘consumer’ ‘trader’ and ‘service’ are defined in clauses (b), (c), (d), (q) and (o) of Section 2 of the Act. Therefore, a consumer forum will have jurisdiction only when: (i) the complainant is a ‘consumer’ as defined in clause (d) or a person specified in clause (b) of section 2 of the Act; (ii) the respondent is a ‘trader’ as defined in clause (q) or a provider of ‘service’ as defined in clause (o) of section 2 of the Act; and (iii) the ‘complaint’ relates to any of the matters specified in clause (c) of section 2, for obtaining any relief provided by order under the Act. It therefore follows that where the complainant is not a ‘consumer’ (or a person specified in clause (b) of section 2, or where the respondent is not a ‘trader’ or ‘service provider’ or where the complaint does not relate to matters enumerated in clause (c) of Section 2 of the Act, the consumer forum will have no jurisdiction either to entertain any complaint or grant any relief under the Act.

The Court noted that the appellants raised one more contention that the complaints were not maintainable against the Government can never be considered as a ‘service provider’ under the Act. As such a contention was not raised either before the UT Commission or National Commission; the Court does not propose to examine the said contention in these appeals. (U.T. Chandigarh Administration & Anr. V. Amarjeet Singh & Ors.; 2009(4) ALJ 116)

* S. 2(1)(g) – Medical Negligence – Burden of proof lies on complainant.

The onus to prove medical negligence lies largely on the claimant and that this onus can be discharged by leading cogent evidence. A mere averment in a complaint which is denied by the other side can, by no stretch of imagination, be said to be evidence by which the case of the complainant can be said to be proved. It is the obligation of the complainant to provide the facts probanda as well as the facta probantia. (Dr. C.P. Sreekumar M.S. (Ortho) v. S. Ramanujam; 2009(4) ALJ 645)

* S. 24-A – Consumer complaint forum not to admit complaint filed beyond limitation because provision of S. 24-A is peremptory.

Provision as to limitation is peremptory in nature and requires consumer forum to see before it admits the complaint that it has been filed within two years from the date of accrual of cause of action. The consumer forum, however, for the reasons to be recorded in writing may condone the delay in filing the complaint if sufficient cause is shown. The expression, ‘shall not admit a complaint’ occurring in Section 24-A is sort of a legislative command to the consumer forum to examine on its own whether the complaint has been filed within limitation period prescribed thereunder. As a matter of law, the consumer forum must deal with the complaint on merits only if the complaint has been filed within two years from the date of accrual of cause of action and if beyond the said period, sufficient cause has been shown and delay condoned for the reasons recorded in writing. (State Bank of India v. M/s. B.S. Agricultural Industries (I))

Contempt of Courts Act

* S. 2 – Contempt – What does not amount.

If a garnishee, or a defendant, who is directed to pay any sum of money, does not pay the amount, the remedy is to levy execution and not in an action for contempt or disobedience/breach under Order 39, Rule 2A. This is evident from Rule 46B of Order 21 read with Rule 11A of Order 38 of the Code. Contempt jurisdiction, either under the Contempt of Court Act, 1971, or under Order 39, Rule 2A of the Code, is not intended to be used for enforcement of money decrees or directions/orders for payment of money. The process and concept of execution is different from process and concept of action for disobedience/contempt. (Food Corporation of India v. Sukha Deo Prasad; 2009(4) ALJ 377)

* S. 2(b) – Word ‘willful’ – Meaning of

            The term “willful” has not been defined in the 1971 Act. Therefore, it will be useful to notice dictionary meaning of the said term. As per the New Oxford Illustrated Dictionary; (1980 Edn.), the term “willful” means “asserting or disposed to assert one’s own will against instruction, persuasion, etc.; obstinately self-willed; deliberate, intentional, showing perversity or self-will”.

According to Black’s Law Dictionary (8th Edn.) – “willful” means “voluntary and intentional, but not necessarily malicious” and “willfulness” means-

“1.       the fact or quality of acting purposely or by design; deliberateness; intention, willfulness does not necessarily imply malice, but it involves more than just knowledge.

2.         the voluntary, intentional violation or disregard of a known legal duty”.

As per Stroud’s Judicial Dictionary, Vol. 5 (4th Edn.), “willful disobedience” means:

“(1) the willful disobedience of a SEAMAN or apprentice is ‘wilfully disobeying any lawful command DURING the engagement’: ‘There may be many cases in which DESERTION, Or ABSENCE without leave, would not amount to willful disobedience, and in these cases the seman would only be liable to the lesser penalty. Where, however, the seaman deserts or is intentionally absent without leave after the time at which he has been lawfully ordered to be on board, his desertion or absence may amount to “wilful disobedience”, and, consequently, that he would be liable to imprisonment. The words “during the engagement” seem to suggest that the contract between the employer and the employed should be taken into account, and that if, having regard to that contract, the order was one which the employed was bound to obey, his disobedience might be dealt with under clause (d)”.

In Shorter Oxford English Dictionary, the term “willful” has been defined as:

“1.       Asserting or disposed to assert one’s own will against persuation, instruction, or command; governed by will without regard to reason; obstinately self-willed or perverse.

2.         Willing, consenting; ready to comply with a request, desire, or requirement.

3.         Proceeding from the will; done or suffered of one’s own free will or choice; voluntary.

4.         Done on purpose or wittingly; purposed, deliberate, intentional, (chiefly, now always, in bad sense of a blameworthy action; freq. implying ‘perverse, obstinate’.

(All India Anna Dravida Munnetra Kazhagam v. L.K. Tripathi And Others; (2009) 2 SCC (Cri) 673)

* S. 2(c) – Criminal contempt – What amounts to

In the instant case, the contemnor took an offending position before the High Court by firstly stating that she would not allow the Court to function unless the Judge gives the answer to her questions; secondly that she would stand at the dais (bar podium) and not move out unless she was thrown out of Court by the police and also did not allow other counsel to plead their cases; and thirdly she accused the Judge of lacking in integrity in open Court in the presence of other Counsel, clerks, staff, and Litigants stating that the Judge should paste a list of his favourite counsel on the notice Board outside the Court. The charge, therefore, constituted against the contemnor was that she intentionally forestalled the functioning of a constitutional office and not only attacked the institution but the presiding Judge as well. Whatever was spoken was well within the perception of the Judge and in the direct sight of the Court. It was clearly intended to undermine the authority of the Court and malign its dignity in the Courts view itself. The Judge was personally imputed with motives by calling him to get a notice pasted outside Court of his favourite counsel.

There are instances of normal and excusable, though excessive, outbreaks of acrimonious expressions by lawyers. They are condonable and pardonable as they do not exceed limits of vulgar indecency. But where a calculative approach with the intent of bringing about disrepute to the Court for no valid cause is discernible, then it is nothing else but contemptuous if not something more. The utterances give a feeling of burning sense of impropriety. An out burst of the kind presently in question suggests that the belief in the institution is slandered and its image disfigured. The words spoken were unattractive, extravagant and ferociously contemptuous. It was unreceptive and unrecognizable.

In the absence of any valid defence, the facts leading to the charge stood established and the charge stood proved to the hilt. The scene created by the contemnor taken in its entirety took within its fold all the characteristics of an ex-facie criminal contempt as defined in Section 2(c), (i), (ii) and (iii) read with Section 14 of the 1971.

The contemnor had tendered her apology to save herself from the ignominy of punishment. There was no remorse or repentance in either her affidavits or the submissions. Such an apology cannot be accepted. (Suo Motu Action taken by the Court v. Smt. Sadhna Upadhyaya, Advocate; 2009(4) ALJ 434)

* Civil contempt – Burden of – Determination of

            As therefore some judgments in which the courts have considered the question relating to burden of proof in contempt cases. In Bramblevale Ltd., Re [1970 Ch 128: (1969) 3 WLR 699: (1969) 3 All ER 1062 (CA)] Lord Denning observed: (All ER pp. 1063 H-1064 B)

“A contempt of court is an offence of a criminal character. A man may be sent to prison for it. It must be satisfactorily proved. To use the time-honoured phrase, it must be proved beyond reasonable doubt. It is not proved by showing that, when the man was asked about it, he told lies. There must be some further evidence to incriminate him. Once some evidence is given, then his lies can be thrown into the scale against him. But there must be some other evidence….

…Where there are two equally consistent possibilities open to the court, it is not right to hold that the offence is proved beyond reasonable doubt.”

In Mrityunjoy Das v. Sayed Hasibur Rahaman; (2001) 3 SCC 739, the Court referred to a number of judicial precedents including the observations made by Lord Denning in Bramblevale Ltd., Re [1970 Ch 128: (1969) 3 WLR 699: (1969) 3 All ER 1062 (CA)] and held:

“……The common English phrase ‘he who asserts must prove’ has its due application in the matter of proof of the allegations said to constitute the act of contempt. As regards the ‘standard of proof’, be it noted that a proceeding under the extraordinary jurisdiction of the court in terms of the provisions of the Contempt of Courts Act is quasi-criminal, and as such, the standard of proof required is that of a criminal proceeding and the breach shall have to be established beyond reasonable doubt.”

In Chhotu Ram v. Urvashi Gulati; (2001) 7 SCC 530: 2001 SCC (L & S) 1196, a two-Judge Bench observed:

“As regards the burden and standard of proof, the common legal phraseology ‘he who asserts must prove’ has its dues application in the matter of proof of the allegations said to constitute the act of contempt. As regards the ‘standard of proof’, be it noted that a proceeding under the extraordinary jurisdiction of the court in terms of the provisions of the Contempt of Courts Act is quasi-criminal, and as such, the standard of proof required is that of a criminal proceeding and the breach shall have to be established beyond all reasonable doubt.”

In Anil Ratan Sarkar v. Hirak Ghosh; (2002) 4 SCC 21, the Court referred to Chhotu Ram v. Urvashi Gulati; (2001) 7 SCC 530: 2001 SCC (L & S) 1196, and observed:

“…….The contempt of Courts Act, 1971 has been introduced in the statute book for the purposes of securing a feeling of confidence of the people in general and for due and proper administration of justice in the country – undoubtedly a powerful weapon in the hands of the law courts but that by itself operates as a string of caution and unless thus otherwise satisfied beyond doubt, it would neither be fair nor reasonable for the law courts to exercise jurisdiction under the statute.”

(All India Anna Dravida Munnetra Kazhagam v. L.K. Tripathi and Others; (2009) 2 SCC (Cri) 673)

* Criminal contempt – Contumacious speech – Xerox copies of newspaper and tape of edited version of speech telecast on TV – Admissibility in evidence.

The only material produced against Respondent 6 is in the form of Xerox copies of newspapers and tape of the edited version of speech allegedly telecast on TV on 1.10.2007 and 2.10.2007. Respondent 6 has claimed that the newspapers had reported something by putting in his mouth which he did not speak and that what was telecast on TV was the doctored version of his speech. Therefore, the petitioners were duty-bound to produce some primary evidence to prove the contents of the speech made by Respondent 6 scandalising judiciary in general and in contempt of the Supreme Court’s order dated 30.9.2007 [AIADMK case, (2009) 5 SCC 452: (2009) 2 SCC (Cri) 703] in particular.

The Xerox copies of the newspapers in which the contents of speech made by Respondent 6 have been published cannot be relied upon because the petitioners have not filed the affidavits of those who covered the meeting held by the political parties and heard the speech made by Respondent 6, if such affidavits had been filed, Respondent 6 could have been called upon to explain his position. Likewise, the original tape containing telecast of the speech made by Respondent 6 has not been made available to the Court.

Therefore, charge cannot be framed against Respondent 6 with reference to Section 2(c) of the 1971 Act because the petitioners have not produced any legally admissible evidence to prove the contents of the speech allegedly made by him. (All India Anna dravida Munnetra Kazhagam v. L.K. Tripathi And Others; (2009) 2 SCC (Cri) 673)

Contract Act

* S. 23 – Agreement in respect of testamentary property between Executor and third party – Enforceability of

The testamentary Court must give effect to the Will and not an agreement by and between the Executor and the third party, which would be contrary to the wishes of the testator.

A probate when granted binds the whole world. It is a judgment in rem. The Executor, therefore, has to administer the estate of the testator in terms of the Will and not on the basis of the settlement arrived at by and between the parties which would be inconsistent with the terms of the Will. In case of any conflict between the terms of the Will and the settlement, the former will prevail. The Court, thus, in exercise of its jurisdiction under S. 302 can enforce only the terms of the will and not the terms of the agreement which is not part of the Will.  (Chandrabhai K. Bhoir & Ors. v. Krishna Arjun Bhoir & Ors.; AIR 2009 SC 1645)

Court Fee Act

* S. 7(IV-A) – Scope of – Whether an instrument secures money or property having money value and it be decided with reference to the date of institution of suit.

In the instant case, admittedly the suit has been filed long after the death of the testator the will has become operative and therefore, the Will is an instrument or document securing property having money value. Since section 7 (IV-A) (U.P. Amendment) specifically provides for payment of Court fee in case where the suit is for or involving cancellation or adjudging void or voidable an instrument securing property having money value. Article 17(iii) of Schedule-II of the Court Fees Act shall not be applicable. (Smt. Rajni Swami v. Smt. Shakuntala Sharma; 2009(107) RD 442)

* Sch. 2, Art. 17(iii), S. 7(iv-A) (U.P. Amendment) – Direction to deposit ad valorem Court-fees in suit for declaration that Will executed was null and void – Validity of

There is a big gap between the declaration simpliciter and relief in the garb of declaration. If a person makes a prayer to declare right, title or interest of a property in his favour then it can be construed as declaration simpliciter but when a plaintiff seeks any declaration to disentitle others right into a property, such type of circumvent prayer cannot be treated to be declaration simpliciter. In other words, he is not asking any relief for himself but wants to prevent his opponent from enjoying fruit of the property. Therefore, such type of relief is virtually in the nature of injunction at first with the nomenclature of the “declaration”. Therefore, it is required for the Court to go into the real nature of dispute arising out of the plaint to ascertain the cause and incidental cause which helps it. A Will is execution of document of a testator to give his property to a person of his choice. Such Will will be enforceable only after the death of the testator. In some of the States of India, grant of probate by the appropriate Court of law on the Will is compulsory and in some of the State it is optional. In the State of U.P., obtain probate on the Will is optional, therefore, as soon as the testator dies and Will comes into light, it operates as a valuable instrument in favour of the person in whose favour property is devolved by such Will. If such person seeks a probate before the Court by filing it, no question of ad valorem Court-fee will be applicable but it will be paid as soon as Court will grant such probate in his favour. In the instant case, the defendant/respondent never approached to the Court to obtain a probate but enjoying the property as successor under the Will. Now, if such Will is declared by the Court as null and void, right of the person in the property or properties under the Will, will be extinguished. Therefore, the principle of securing property under the Will will be attracted. Therefore, under no stretch of imagination Court can hold and say that the suit can be entertained on the basis of the fixed Court-fees. Thus, directions issued for payment of ad valorem fees would not be improper. (Smt. Rajni Swami v. Smt. Shakuntala Sharma; 2009(5) ALJ 290 (DB)

Criminal Procedure Code

* S. 24 – Role of Public Prosecutor – He has to act objectively and not according to dictates of State Government.

The Public Prosecutor cannot act on the dictates of the State Government, he has to act objectively as he is also an officer of the court. The Special Court is free to assess whether the prosecution has established its case. (Captain Amarinder Singh v. Parkash Singh Badal & Others; (2009) 2 SCC (Cri) 971)

* S. 133 – Maintenance of public order – Proceedings U/s. 133 is not intended to settle private disputes between different members of public.

A proceeding under Section 133 is of a summary nature. It appears as a part of Chapter X of the Code which relates to maintenance of public order and tranquility. The Chapter has been classified into four categories. Sections 129 to 132 come under the category of “unlawful assemblies”. Sections 133 to 143 come under the category of “public nuisance”. Section 144 comes under the category of “urgent cases of nuisance of apprehended danger” and the last category covers Sections 145 to 149 relating to “disputes as to immovable property”. Nuisances are of two kinds, i.e. (i) Public; and (ii) Private.

The first relates to the prosecution under Chapter XIV of IPC. The second provides for summary proceedings under Sections 133 to 144 of the Code, and the third relates to remedies under special or local laws. Sub-section (2) of Section 133 postulates that no order duly made by a Magistrate under this Section shall be called in question in any civil court. The provisions of Chapter X of the Code should be so worked as not to become themselves a nuisance to the community at large. Although every person is bound to so use his property that it may not work legal damage or harm to his neighbour, yet on the other hand, no one has a right to interfere with the free and full enjoyment by such person of his property, except on clear and absolute proof that such use of it by him is producing such legal damage or harm. Therefore, a lawful and necessary trade ought not to be interfered with unless it is proved to be injurious to the health or physical comfort of the community. Proceedings under Section 133 are not intended to settle private disputes between different members of the public.

The word ‘community’ in Clause (b) of Section 133(1) cannot be taken to mean residents of a particular house. It means something wider, that is, the public at large or the residents of an entire locality. The very fact that the provision occurs in a Chapter containing ‘Public Nuisance’ is indicative of this aspect. It would, however, depend on the facts situation of each case and it would be hazardous to lay down any strait-jacket formula. (Suhelkhan Khudyarkhan & Anr. v. State of Maharashtra & Ors.; AIR 2009 SC 1868)

* S. 154 – Defective investigation – Effect of

It is true that a faulty investigation cannot be a determinative factor and would not be sufficient to throw out a credible prosecution version. But in the instant case there is no explanation offered even to explain the discrepancies. (Motilal & Another v. State of Rajasthan; (2009) 7 SCC 454)

* S. 154 – Delay in lodging/filing of FIR – Effect of – Delay by itself may not be a ground to disbelieve prosecution case.

            Delay in lodging of a first information report although by itself may not be a ground to disbelieve the entire prosecution case, but each case must be judged on its own facts. If the story of the complainant victim, had returned to school on 3.8.1986 and attempts were made by the appellant immediately thereafter to send for him for repeating the commission of the same offence (of sodomy), there was no reason why the first information report was not lodged immediately. (Gowrishankara Swamigalu v. State of Karnataka and Another; (2009) 2 SCC (Cri) 813)

* S. 156(3) – Scope of.

            When the application is moved the Magistrate will not work like a postman but he has to examine whether from reading of the application/complaint under section 156(3) Cr.P.C. prima facie commission of offence is disclosed or not. If he finds that no commission of offence was disclosed, he can reject the application and if he finds that prima facie commission of cognizable offence was disclosed, he will direct for registration and investigation of such complaint. If the Magistrate finds that though prima facie commission of offence was disclosed but it does not require investigation as no recovery or discovery is necessary in that case, then he may proceed as a complaint case. However, if the learned Magistrate finds that prima facie no commission of offence was disclosed he can reject the application. (Chandrapal v. State of U.P. & Ors.; 2009(4) ALJ 35)

* S. 167(2) and S. 309(1) – Remand to custody – Pre-cognizance and post-cognizance procedures, distinguished.

A distinction between a remand of an accused at pre-cognizance stage vis-à-vis the post-cognizance stage is apparent. Whereas the remand at a pre-cognizance stage is to be made in terms of sub-section (2) of Section 167 of the Code, an order of remand of an accused at post-cognizance stage can be effected only in terms of sub-section (2) of Section 309 thereof. This aspect of the matter has been considered by the Court recently in Mithabhai Pashabhai Patel v. State of Gujarat; (2009) 6 SCC 332. (Jeewan Kumar Raut and Another v. Central Bureau of Investigation; (2009) 7 SCC 526)

* S. 173 – Re-investigation – Permissibility of.

The Supreme Court while passing the order in exercise of its jurisdiction under Article 32 of the Constitution of India in NHRC case, (2009) 6 SCC 342: (2009) 2 SCC (Cri) 1055 and the order dated 22.9.2008 did not direct reinvestigation. “Further investigation” and “reinvestigation” stand on different footing. A distinction exists between a reinvestigation and further investigation. It may be that in given situation a superior court in exercise of its constitutional power, namely, under Articles 226 and 32 of the Constitution of India could direct a “State” to get an offence investigated and/or further investigated by a different agency. Direction of a reinvestigation, however, being forbidden in law, no superior court would ordinarily issue such a direction. If the investigating authority, in terms of the provisions of Cr.P.C., could not ask for reinvestigation, the court would have to proceed on the basis that Supreme Court in its order in NHRC case, (2009) 6 SCC 342: (2009) 2 SCC (Cri) 1055 and the order dated 22.9.2008 only directed further investigation,. Furthermore, in this case the Special Investigating Team has already submitted its report to the Supreme Court. (Mithabhai Pashabhai Patel & Others v. State of Gujarat; (2009) 2 SCC (Cri) 1047)

* S. 173(8) – Further investigation – Directions/permission for.

            The Court while passing the order in exercise of its jurisdiction under Article 32 of the Constitution of India did not direct reinvestigation. The Court exercised its jurisdiction which was within the realm of the Code. Indisputably the investigating agency in terms of sub-section (8) of Section 173 of the Code can pray before the court and may be granted permission to investigate into the matter further. There are, however, certain situations, where such a formal request may not be insisted upon. (Mithabhai Pashabhai Patel & Others v. State of Gujarat; (2009) 2 SCC (Cri) 1047)

*S. 190 – Passing order while taking cognizance of offence – Obligation of Judicial Magistrate to apply his mind to content of charge-sheet and the application of mind to be reflected in said order.

            Where no case has been made out for taking cognizance of an offence under Section 420 of the Penal Code, it was obligatory on the part of the Chief Judicial Magistrate to apply his mind to the contents of the charge-sheet. Such application of mind on his part should have been reflected from the order.

In a case of this nature where even no case has been made out for taking cognizance of an offence under Section 420 of the Penal Code, it was obligatory on the part of the learned Chief Judicial Magistrate to apply his mind to the contents of the charge-sheet. Such application of mind on his part should have been reflected from the order. (See State of Karnataka v. Pastor P. Raju; (2006) 6 SCC 728, and Pawan Kumar Sharma v. State of Uttaranchal; Criminal Appeal No. 1692 of 2007 decided on 10.12.2007) (Devendra & Others v. State of Uttar Pradesh & Another, (2009) 7 SCC 495)

* S. 197 – Sanction for prosecution – Bar on taking cognizance of offence in absence of sanction is absolute and complete.

So far as public servants are concerned the cognizance of any offence, by any Court, is barred by Section 197 of the Code unless sanction is obtained from the appropriate authority, if the offence, alleged to have been committed, was in discharge of the official duty. The Section not only specifies the persons to whom the protection is afforded but it also specifies the conditions and circumstances in which it shall be available and the effect in law if the conditions are satisfied. The mandatory character of the protection afforded to a public servant is brought out by the expression, ‘no Court shall take cognizance of such offence except with the previous sanction’. Use of the words, ‘no’ and ‘shall’ make it abundantly clear that the bar on the exercise of power of the Court to take cognizance of any offence is absolute and complete. Very cognizance is barred. That is the complaint cannot be taken notice of. According to Black’s Law Dictionary the word ‘cognizance’ means ‘Jurisdiction’ or ‘the exercise of jurisdiction’ or ‘power to try and determine causes’. In common parlance it means taking notice of. A Court, therefore, is precluded from entertaining a complaint or taking notice of it or exercising jurisdiction if it is in respect of a public servant who is accused of an offence alleged to have committed during discharge of his official duty.

Section does not extend its protective cover to every act or omission done by a public servant in service, but restricts its scope of operation to only official duty. (State of U.P. v. Paras Nath Singh; 2009(5) ALJ 249)

* S. 313 – Examination of accused – Mandatory nature of – Effect of non-compliance with S. 313.

The purpose of Section 313 of the Code is set out in its opening words – ‘for the purpose of enabling the accused personally to explain any circumstances appearing in the evidence against him. In Hate Singh Bhagat Singh v. State of Madhya Bharat; AIR 1953 SC 468, it has been laid down by Bose, J. that the statements of the accused persons recorded under Section 313 of the Code ‘are among the most important matters to be considered at the trial’. It was pointed out that:

The statements of the accused recorded by the Committing Magistrate and the Sessions Judge are intended in India to take the place of what in England and in America he would be free to state in his own way in the witness box (and that) they have to be received in evidence and treated as evidence and be duly considered at the trial.

This position remains unaltered even after the insertion of Section 315 in the Code and any statement under Section 313 has to be considered in the same way as if Section 315 is not there.

The object of examination under this section is to give the accused an opportunity to explain the case made against him. This statement can be taken into consideration in judging his innocence or guilt. Where there is an onus on the accused to discharge, it depends on the facts and circumstances of the case if such statement discharges the onus.

The word ‘generally’ in sub-section (1)(b) does not limit the nature of the questioning to one or more questions of a general nature relating to the case, but it means that the question should relate to the whole case generally and should also be limited to any particular part or parts of it. The question must be framed in such a way as to enable the accused to know what he is to explain, what are the circumstances which are against him and for which an explanation is needed. The whole object of the section is to afford the accused a fair and proper opportunity of explaining circumstances which appear against him and that the questions must be fair and must be couched in a form which an ignorant or illiterate person will be able to appreciate and understand. A conviction based on the accused’s failure to explain what he was never asked to explain is bad in law. The whole object of enacting Section 313 of the Code was that the attention of the accused should be drawn to the specific points in the charge and in the evidence on which the prosecution claims that the case is made out against the accused so that he may be able to give such explanation as he desires to give.

Above being the position the appeal deserves to be allowed. It is a matter of regret and concern that the trial court did not indicate the incriminating material to the accused. Section 313 of the Code is not an empty formality. There is a purpose behind examination under Section 313 of the Code. (Ranvir Yadav v. State of Bihar; (2009) 3 SCC (Cri) 92)

* S. 319 – Summon of additional accused – When not to be interfered with.

            All that is required by the Court for invoking its powers under Section 319 Cr.P.C. is to be satisfied that from the evidence adduced before it, a person against whom no charge had been framed, but whose complicity appears to be clear, should be tried together with the accused. It is also clear that the discretion is left to the Court to take a decision on the matter.

In the instant case, although, the appellants were named in the FIR they were not named as accused in the charge-sheet during the trial. However, P.W. 1 in his evidence, has named the appellants as persons who were involved in the incident causing the death of Brijesh Kumar Singh and injuries to Manvender Singh. Despite the above, the trial Court, on two separate occasions, rejected the prayer made by the Respondent No. 2 for summoning the appellants herein under Section 319 Cr.P.C. The High Court, after considering the evidence of P.W. 1, Kamlesh Singh, thought it necessary for the appellants to be summoned.

Court has carefully considered the submissions made on behalf of the respective parties and the provisions of Section 319 Cr.P.C. and have arrived at the conclusion that no interference is called for with the order passed by the High Court. (Ram Pal Singh & Ors. v. State of U.P. & Anr.; AIR 2009 SC 1723)

* S. 340 & 341 – Perjury – Appeal or revision by State against initiation of suo motu action by High Court would not be maintainable.

A bare reading of the provisions makes it clear that an appeal under Section 341 can be filed by any person on whose application the Court other than the High Court refused to make a complaint under sub-section (1) or sub-section (2) of Section 340. The other person who can file an appeal is one against whom such a complaint has been made by such Court. Undisputedly, the present case was one where the initiation was suo motu by the High Court. The effect of decision of the Court which took suo motu action not to proceed further appears to have been kept in mind by the legislature while enacting Section 341(1). Sub-section (2) of Section 341 is relevant for the purpose of this case. It states that an order under Section 341 and subject to any such order, an order under Section 340 shall be final and shall not be subject to revision. In other words there is legal embargo created on filing a revision in respect of an order under section 340 which cannot be the subject matter of challenge. Undisputedly, what was challenged before the High Court was an order under Section 340 by the State of Kerala. The High Court was justified in holding that no appeal can be filed by the State under Section 341 of the Act. But its conclusions about maintainability of the revision are indefensible in view of the clear language of sub-section (2) of Section 341. It appears that the High Court has made certain observations against the officers which do not in the view of the court warrant interference. Therefore, the impugned order of the High Court regarding the maintainability of the revision stands set aside. (K. Sudhakaran v. State of Kerala; AIR 2009 SC 1898)

*S. 354 – Sentence – In order to award sentence some factors should be clearly balanced.

After giving due consideration to the facts and circumstances of each case, for deciding just and appropriate sentence to be awarded for an offence, the aggravating and mitigating factors and circumstances in which a crime has been committed are to be delicately balanced on the basis of really relevant circumstances in a dispassionate manner by the Court. Such act of balancing is indeed a difficult task. No formula of a foolproof nature is possible that would provide a reasonable criterion in determining a just and appropriate punishment in the infinite variety of circumstances that may affect the gravity of the crime. In the absence of any foolproof formula which may provide any basis for reasonable criteria to correctly assess various circumstances germane to the consideration of gravity of crime, the discretionary judgment in the facts of each case, is the only way in which such judgment may be equitably distinguished. (State of U.P. v. Sattan @ Satyendra & Ors.; 2009(4) ALJ 234)

* S. 376 and 417 – Rape – Inference regarding consent.

The evidence about the cheating is of slipshod nature and not believable. It is also self-effacing. After all, the first act of the sexual intercourse was without the consent and the accused had thereby committed rape, however, the version that he gave a marriage promise would really go against the prosecution whereby it would mean that the subsequent acts were done with the consent of the girl on account of the promise of marriage. We do not think that such could be the approach. After all, if the promise of marriage was given and the girl had succumbed on that account, by itself, may not amount to cheating. Besides this, the girl has very specifically stated that even subsequently she was ravished against her wishes. Therefore, the theory of promise of marriage and the consent for sexual intercourse will wither away. The courts therefore, acquit the accused of the offence under Section 417 IPC. (Zindar Ali Sheikh v. State of West Bengal and Another; (2009) 2 SCC (Cri) 737)

* S. 389 – Suspension of sentence and grant of bail pending appeal – Order granting bail passed without considering relevant aspect will be liable to be set aside.

            The parameters to be adopted while dealing with the application for bail by suspension of sentence during the pendency of the appeal has been examined by the Court in several cases. In Kishori Lal v. Rupa and Ors.; 2004 (7) SCC 638, it was noted as follow:

“Section 389 of the Code deals with suspension of execution of sentence pending the appeal and release of the appellant on bail. There is a distinction between bail and suspension of sentence. One of the essential ingredients of Section 389 is the requirement for the appellate court to record reasons in writing for ordering suspension of execution of the sentence or order appealed against. If he is in confinement, the said Court can direct that he be released on bail or on his own bond. The requirement of recording reasons in writing clearly indicates that there has to be careful consideration of the relevant aspects and the order directing suspension of sentence and grant of bail should not be passed as a matter of routine.

The appellate court is duty-bound to objectively assess the matter and to record reasons for the conclusion that the case warrants suspension of execution of sentence and grant of bail. In the instant case, the only factor which seems to have weighed with the High Court for directing suspension of sentence and grant of bail is the absence of allegation of misuse of liberty during the earlier period when the accused respondents were on bail.”

In Anwari Begum v. Sher Mohammad and Anr.; 2005 (7) SCC 326, it was, inter alia, observed as follows:

“Even on a cursory perusal the High Court’s order shows complete non-application of mind. Though a detailed examination of the evidence and elaborate documentation of the merits of the case is to be avoided by the court while passing orders on bail applications, yet a court dealing with the bail application should be satisfied as to whether there is a prima facie case, but exhaustive exploration of the merits of the case is not necessary. The court dealing with the application for bail is required to exercise its discretion in a judicious manner and not as a matter of course.

There is a need to indicate in the order reasons for prima facie concluding why bail was being granted, particularly where an accused was charged of having committed a serious offence. It is necessary for the courts dealing with application for bail to consider among other circumstances, the following factors also before granting bail, they are:

1.   The nature of accusation and the severity of punishment incase of conviction and the nature of supporting evidence.

2.   Reasonable apprehension of tampering with the witness or apprehension of threat to the complainant.

3.   Prima facie satisfaction of the court in support of the charge.

Any order dehors of such reasons suffers from non-application of mind as was noted by the Court in Ram Govind Upadhyay v. Sudarshan Singh & Ors.; 2002 (3) SCC 598, Puran etc. v. Rambilas and Anr. etc.; 2001 (6) SCC 338, and in Kalyan Chandra Sarkar v. Rajesh Ranjan alias Pappu Yadav and Anr.; JT 2004 (3) SC 442.”

In the instant case, extracted portion of the High Court’s order goes to show there was complete non-application of mind and non-consideration of the relevant aspects.

The impugned order, therefore, is not sustainable and is set aside. (Khilari v. State of U.P. & Ors.; AIR 2009 SC 1837)

* S. 389 – Suspension of sentence pending appeal and release of appellants on bail – Scope and manner of exercise of discretion of High Court.

            When an appeal is preferred against conviction in the High Court, the High Court has ample power and discretion to suspend the sentence, but that discretion has to be exercised judiciously depending on the facts and circumstances of each case. While considering the suspension of sentence, each case is to be considered on the basis of nature of the offence, manner in which occurrence had taken place, whether in any manner bail granted earlier had been misused. In fact, there is no straitjacket formula which can be applied in exercising the discretion. The facts and circumstances of each case will govern the exercise of judicial discretion while considering the application filed by the convict under Section 389 Cr.P.C. (Angana and Another v. State of Rajasthan; (2009) 2 SCC (Cri) 742)

* S. 397(2) – Maintainability of revision – Whether revision against order issuing process for summoning of accused in complaint case would be maintainable – Held, ‘yes’ because it is not interlocutory order.

The matter of maintainability of Revision against summoning order has been considered by the Hon’ble Apex Court in several decision. In the case of Rajendra Kumar Sita Ram Pandey & Others v. Uttam and Another; 1999(38) ACC 438: AIR 1999 SC 1028 in which the matter of bar of revision under the provisions of sub-section (2) of section 397 Cr.P.C. against summoning order was considered. Following its earlier decisions in the case of Amarnath and others v. State of Haryana and others; 1977 Cri.LJ 1891 and Madhu Limaye v. State of Maharashtra; 1978 (15) ACC 184: AIR 1978 SC 47, the Hon’ble Apex Court in Rajendra Kumar Sita Ram Pandey (supra) has held that order issuing process for summoning the accused to face the trial is not an interlocutory order and therefore the bar under sub-section (2) of section 397 would not apply to such order. Therefore, in view of the specific law laid down by the Hon’ble Apex Court in the case of Rajendra Kumar Sita Ram Pandey (supra), Revision against summoning order is legally maintainable.

The matter of maintainability of revision was considered again by the Hon’ble Apex Court in the case of K.K. Patel and another v. State of Gujarat and another; 2000(41) ACC 351 (SC): AIR 2000 SC 3346. In para 11 of the judgment in K.K. Patel (supra), the Hon’ble Apex Court held that “it is now wellnigh settled that in deciding whether an order challenged is interlocutory or not as for secition 397(2) Cr.P.C. of the Code, the sole test is not whether such order was passed during the interim stage. The feasible test is whether by upholding the objections raised by a party, it would result in culminating the proceedings, if so any order passed on such objections would not be merely interlocutory in nature as envisaged in section 397(2) of the Code. In the present case, if the objection raised by the appellants were upheld by the Court the entire prosecution proceedings would have been terminated.”. Applying the principle laid down by the Hon’ble Apex Court in Amarnath v. State of Haryana, Madhu Limaye v. State of Maharashtra and K.K. Patel v. State of Gjuarat (supra), in the considered opinion of the Court, the order issuing process against the accused is not an interlocutory order and hence, Revision against such order would not be barred under sub-section (2) of section 397 Cr.P.C.

The matter of challenging summoning order in Revision under Section 397 or in proceedings under section 482 Cr.P.C., was recently considered by the Hon’ble Apex Court in Dhariwal Tobacco Products Ltd. & Others v. State of Maharashtra and another; 2009(64) ACC 962: AIR 2009 SC 1032. Making reference to its earlier decisions, the Hon’ble Apex Court has specifically held in para 8 of the report at page 963 that indisputably issuance of summons is not an interlocutory order within the meaning of section 397 of the Code. Therefore, in view of the observation of the Hon’ble Apex Court, the present Revision against summoning order would not be barred by sub-section (2) of section 397 Cr.P.C. and is legally maintainable, although jurisdiction of the High Court under section 482 Cr.P.C. can also be invoked to challenge the summoning order, as held by the Hon’ble Apex Court in Dhariwal Tobacco Products Ltd. (Jag Narain & Ors. v. State of U.P. & Anr.; 2009(5) ALJ 84)

* S. 401 and 374(2) – Revision – Disposal without speaking order – Not proper.

            A criminal revision petition against conviction for the offences punishable under Sections 7 and 16 of the Prevention of Food Adulteration Act, 1954, filed before the High Court, was admitted. But on the same day it was disposed of by a cryptic and practically non-reasoned order.

Supreme Court observed that is not the way to dispose of a revision petition which has been admitted. If there was no substance, it should not have been admitted. Since it was admitted, the High Court obviously felt that there was some arguable point. Thereafter to dismiss it without indicating any reason or basis is certainly not the proper way of disposal. (Goverdhan Dass Bansal v. State (Delhi Administration) Through Secretary; (2009) 2 SCC (Cri) 848)

* S. 437 – Bail – Grant of – Though detailed examination of evidence is not to be undertaken but court is bound to give some reason for prima facie conclusion why bail is granted.

While dealing with an application for bail, there is a need to indicate in the order, reasons for prima facie concluding why bail was being granted particularly where an accused was charged of having committed a serious offence. It is necessary for the courts dealing with application for bail to consider among other circumstances, the following factors also before granting bail, they are:

1.        The nature of accusation and the severity of punishment incase of conviction and the nature of supporting evidence.

2.         Reasonable apprehension of tampering of the witness or apprehension of threat to the complainant.

3.         Prima facie satisfaction of the Court in support of the charge.

Though a conclusive finding in regard to the points urged by the parties is not expected of the Court considering the bail application, yet giving reasons is different from discussing merits or demerits. As noted above, at the stage of granting bail a detailed examination of evidence and elaborate documentation of the merits of the case has not to be undertaken. But that does not mean that while granting bail some reasons for prima facie concluding why bail was being granted is not required to be indicated. (State of Maharashtra, etc. v. Dhanendra Shriram Bhurle, etc.; AIR 2009 SC 1706)

*S. 437 & 439 – Grant  of interim bail pending regular bail application – Right to reputation – Relevance.

When a person applies for regular bail then the court concerned ordinarily lists that application after a few days so that it can look into the case diary which has to be obtained from the police authorities and in the meantime the applicant has to go to jail. Even if the applicant is released on bail thereafter, his reputation may be tarnished irreparably in society. The reputation of a person is his valuable asset, and is a facet of his right under Article 21 of the Constitution vide Deepak Bajaj v. State of Maharashtra; (2008) 16 SCC 14. Hence, the court is of the opinion that in the power to grant bail there is inherent power in the court concerned to grant interim bail to a person pending final disposal of the bail application. Of course, it is in the discretion of the court concerned to grant interim bail or not but the power is certainly there. (Sukhwant Singh & Others v. State of Punjab; (2009) 7 SCC 559)

*S. 438 – Anticipatory bail – When may be cancelled

            The appellant had remained on bail for a long time; the impugned judgment having been passed only on 3.12.2008. If the investigating agency was of the opinion that custodial interrogation or interrogation of the appellant in presence of the other accused was necessary, the learned Sessions Judge could have moved in that behalf. If matters relating to the involvement of the appellant in the crime vis-à-vis the other accused were required to be further probed, the Sessions Judge again could have been approached.

It is also beyond anybody’s comprehension as to why the High Court was not moved for cancellation of bail granted in favour of other public servants including the storekeeper. (Fida Hussain Bohra v. State of Maharashtra; (2009) 2 SCC (Cri) 624)

*S. 439 – Bail – Cannot be granted on ground of parity.

In the case of Salim v. State of U.P.; 2003 AllLJ 625, the Court has held that parity cannot be the sole ground for bail.

Again in the case of Zubair v. State of U.P.; 2005(52) ACC 205: 2005 All LJ 1838, the Court observed that there is no absolute hidebound rule that bail must necessarily be granted to the co-accused, where another co-accused has been granted bail.

Although the Hon’ble Apex Court has granted bail recently on the ground of parity in Izrahul Haq Abdul Hamid Shaikh and Anr. v. State of Gujarat; 2009(3) JT 385, but this case cannot be said to be the authority to hold that parity is a sole ground for granting bail. It is nowhere held as a binding precedent in this case that if bail has been granted by a Bench to any accused, then another Bench is bound to grant bail to other similarly placed accused. Otherwise also a judgment of the Court is only an authority for what it actually decides and not what logically follows from it and judgment of the Court is not to be read mechanically as a Euclid’s Theorem nor as if it was a statute.

In view of the discussion, the court is of the considered opinion that parity cannot be the sole ground for granting bail. (Shahnawaz v. State of U.P.; 2009(5) ALJ 92)

* S. 482 – Inherent power – Exercise of – Court does not function as a court of appeal or revision.

Exercise of power under Section 482 of the Code in a case of this nature is the exception and not the rule. The Section does not confer any new powers on the High Court. It only saves the inherent power which the Court possessed before the enactment of the Code. It envisages three circumstances under which the inherent jurisdiction may be exercised, namely, (i) to give effect to an order under the Code, (ii) to prevent abuse of the process of court, and (iii) to otherwise secure the ends of justice. It is neither possible nor desirable to lay down any inflexible rule which would govern the exercise of inherent jurisdiction. No legislative enactment dealing with procedure can provide for all cases that may possibly arise. Courts, therefore, have inherent powers apart from express provisions of law which are necessary for proper discharge of functions and duties imposed upon them by law.

It is to be exercised ex debito justitiae to do real and substantial justice for the administration of which alone courts exist. Authority of the Court exists for advancement of justice and if any attempt is made to abuse that authority so as to produce injustice, the Court has power to prevent such abuse. It would be an abuse of process of the Court to allow any action which would result in injustice and prevent promotion of justice. In exercise of these powers Court would be justified to quash any proceeding if it finds that initiation or continuance of it amounts to abuse of the process of Court or quashing of these proceedings would otherwise serve the ends of justice. When no offence is disclosed by the complaint, the Court may examine the question of fact. When a complaint is sought to be quashed, it is permissible to look into the materials to assess what the complainant has alleged and whether any offence is made out even if the allegations are accepted in toto.

The powers possessed by the High Court under Section 482 of the Code are very wide and the very plentitude of the power requires great caution in its exercise. Court must be careful to see that its decision in exercise of this power is based on sound principles. The inherent power should not be exercised to stifle a legitimate prosecution. High Court being the highest Court of a State should normally refrain from giving a prima facie decision in a case where the entire facts are incomplete and hazy, more so when the evidence has not been collected and produced before the Court and the issues involved, whether factual or legal, are of magnitude and cannot be seen in their true perspective without sufficient material. Of course, no hard and fast rule can be laid down in regard to cases in which the High Court will exercise its extraordinary jurisdiction of quashing the proceeding at any stage.

The interference at the threshold with the FIR is to be in very exceptional circumstances as held in R.P. Kappor’s case reported in AIR 1960 SC 866. (State of A.P. v. Aravapally Venkanna & Anr.; AIR 2009 SC 1863)

* S. 482 – Exercise of power under – When permissible.

It is unfortunate that the High Court while considering the habeas corpus petition filed under Article 226 of the Constitution by the wife of the detenu challenging the order of detention on various grounds, on going through the materials of the Department as an appellate court, relying on Section 482 Cr.P.C. directed the Commissioner of Customs to lodge a report with the police within a period of 15 days along with the complete set of relevant documents to enable them to register a case under Sections 199, 468 and 471 IPC against the detenu. The said direction is not warranted considering the fact that the issue before the High Court was about the validity of the detention order and the curtailment of the personal liberty of the detenu and nothing more. (Pooja Batra v. Union of India & Others; (2009) 2 SCC (Cri) 659)

* S. 482 – Quashing of FIR – Reasonable order – Speaking order necessity.

The practically non-reasoned order of the High Court does not reveal that the parameters relating to exercise of power under Section 482 Cr.P.C. were kept in view. (Lakhwant Singh v. Jasbir Singh & Others; (2009) 2 SCC (Cri) 873)

Criminal Trial

* Appreciation of Evidence – Degree of relevancy of – Testimony witnesses would depend upon facts of each case – there cannot be any precedent on facts.

The question as to whether the witnesses in criminal cases, irrespective of the nature of offence should be fully relied upon or not, would depend upon the facts of each case. There cannot be any precedent on facts. (Gowrishankara Swamigalu v. State of Karnataka & Another; (2009) 2 SCC (Cri) 813)

* Investigation – Unsatisfactory nature of – Effect of.

            The shabby quality of investigation was severely criticized by the learned counsel. There can be no dispute that the investigation in this case is not at all satisfactory. There are discrepancies galore. However, in this case, the truthful version of the prosecutrix cannot be ignored. It is trite law that the defence cannot take advantage of such bad investigation where there is clinching evidence available to the prosecution as in this case. The court, therefore, confirm the finding of the High Court that the accused is guilty of the offence under Section 376 IPC. (Zindar Ali Sheikh v. State of West Bengal and Another; (2009) 2 SCC (Cri) 737)

* Purpose and role of courts in criminal trial – Discovery, vindication and establishment of truth are main purposes for holding a fair trial which are underlying objects for existence of courts of justice.

A few important aspects concerning the cases need to be noted:

(1)        Fair trial

(2)        Modalities to ensure that the witnesses depose freely and in that context the need to protect the witnesses from interference by person(s) connected with it is the protection of victims who in most cases are witnesses.

(3)        Able assistance to court by competent Public Prosecutors.

(4) Further role of SIT.

So far as fair trial is concerned the discovery and vindication and establishment of truth are certainly the main purposes of courts of justice. They are the underlying objects for the existence of the courts of justice. (NHRC v. State of Gujarat; (2009) 3 SCC (Cri) 44)

* Weak evidence – Conviction based on weak evidence – Sustainability of

In Darshan Singh v. State of Punjab; 1983 SCC (Cri) 523, the Court cautioned that the court ordinarily should not convict a person for commission of the offence of conspiracy on the basis of a weak evidence. (Baldev Singh v. State of Punjab; (2009) 3 SCC (Cri) 66)

* Witnesses – Testimony of related witness – Reliability of.

            Relationship is not a factor to affect credibility of a witness. It is more often than not that a relation would not conceal actual culprit and make allegations against an innocent person. Foundation has to be laid if plea of false implication is made. In such cases, the court has to adopt a careful approach and analyze evidence to find out whether it is cogent and credible. (Hardeep Singh & Others v. State of Haryana; (2009) 2 SCC (Cri) 770)

Dowry Prohibition Act

* S. 3 – Dowry demand – Proof of

The accused married Kantaben (hereinafter referred to as the ‘deceased’) in 1989. Soon after two years of his marriage, the accused started inflicting mental and physical torture on her and she was taunted by the accused for not bringing sufficient dowry in the marriage. He also demanded from the victim an amount of Rs. 40,000/- for the purpose of purchasing a house. He even wrote letters to the in-laws and demanded Rs. 40,000/- for purchasing the house. The demand was persistent. Even threats were administered to the deceased and her family members. Thus, the accused inflicted mental and physical torture on the victim which prompted her to commit suicide by burning herself on 23.3.1999 after pouring kerosene on her body. Thus, as per the prosecution case, the appellant has committed the offence punishable under Sections 498A and 306, IPC read with Sections 3 and 7 of DP Act.

In cases of alleged abetment of suicide there must be proof of direct or indirect acts of incitement to the commission of suicide. The mere fact that the husband treated the deceased-wife with cruelty is not enough.

The conviction so far as it relates to Section 306, IPC, therefore, cannot be sustained in view of the background facts and is set aside. But the materials on record particularly the letters on which specific emphasis has been led by the trial Court and the High Court amply demonstrate the commission of offences punishable under section 498-A, IPC and Section 3 of DP Act. The convictions are sustained. But the sentence in respect of Section 3 of DP Act is reduced to three years. (Kishangiri Managalgiri Goswami v. State of Gujarat; AIR 2009 SC 1808)

Essential Commodities Act

* S. 3 – Whether cancellation of fair price shop licence on the only ground that there were irregularity would be proper – Held, “No”.

Merely saying that the distribution is not being done properly would not be sufficient for passing an order cancelling the licence of the petitioner. The valuable rights of the petitioner flow from the licence which has been given in his favour and in case the same is to be cancelled or withdrawn, there should be sufficient reason for the same.

In the present case, the charges against the petitioner were absolutely vague. The reply submitted by the petitioner was not considered while passing the orders, either by the Sub-Divisional Officer or by the appellate authority and merely saying that there were irregularities, without specifying any kind of irregularity and without there being any evidence having been called for from the petitioner, would not be a ground for cancelling the licence of the petitioner. (Siyaram v. State of Uttar Pradesh & Ors.; 2009(4) ALJ 30)

Evidence Act

* S. 3 – Interested witness – Relationship is not factor to affect credibility of a witness.

Merely because the eye-witnesses are family members their evidence cannot per se be discarded. When there is allegation of interestedness, the same has to be established. Mere statement that being relatives of the deceased they are likely to falsely implicate the accused cannot be a ground to discard the evidence which is otherwise cogent and credible. The Court shall also deal with the contention regarding interestedness of the witnesses for furthering prosecution version. Relationship is not a factor to affect credibility of a witness. It is more often than not that a relation would not conceal actual culprit and make allegations against an innocent person. Foundation has to be laid if plea of false implication is made. In such cases, the court has to adopt a careful approach and analyse evidence to find out whether it is cogent and credible.

The Court observe that the ground that the witness being a close relative and consequently being a partisan witness, should not be relied upon, has no substance. This theory was repelled by the Court as early as in Dalip Singh’s case; AIR 1953 SC 364, in which surprise was expressed over the impression which prevailed in the minds of the Members of the Bar that relatives were not independent witnesses. Speaking through Vivian Bose, J. it was observed:

“We are Unable to agree with the learned Judges of the High Court that the testimony of the two eyewitnesses requires corroboration. If the foundation for such an observation is based on the fact that the witnesses are women and that the fate of seven men hangs on their testimony, we know of no such rule. If it is grounded on the reason that they are closely related to the deceased we are unable to concur. This is a fallacy common to many criminal cases and one which another Bench of the Court endeavoured to dispel in – ‘Rameshwar v. State of Rajasthan’; AIR 1952 SC 54 at p. 59. We find, however, that it unfortunately still persists, if not in the judgments of the Courts, at any rate in the arguments of counsel.” (Bhupendra Singh & Ors. v. State of U.P.; 2009(4) ALJ 317)

* S. 9 – T.I. parade not taking place during investigation/arrest but taking place for its first time in court after a long delay – Permissibility and effect.

Although test identification for the first time in court is permissible in law, the principle should be applied having regard to the facts and circumstances of the case. The accused persons having been identified for the first time in the court, it is difficult for any court to rely upon the same and that too after such a long time. (Hem Singh v. State of Haryana; (2009) 3 SCC (Cri) 28)

* S. 30 – Extra-judicial confession – Nature of – Can it become basis of conviction – No, unless it is corroborated.

Evidence of extra-judicial confession is generally of a weak nature. No conviction ordinarily can be based solely thereupon unless the same is corroborated in material particulars. Extra-judicial confession must be found to be reliable.

PW 22, Sukhdev Singh was examined by the police authorities also in some other cases. A suggestion was put to him that he was a police tout. His evidence, therefore, in the opinion of the court, cannot be relied upon. If his evidence cannot be relied upon, the same could not have formed for foundation of recording a judgment of conviction and sentence and that too in a case of conspiracy. The Court must also notice that the evidence of purported extra-judicial confession by itself cannot be held to be sufficient for recording a judgment of conviction against a co-accused in terms of Section 30 of the Evidence Act. (Baldev Singh v. State of Punjab; (2009) 3 SCC (Cri) 66)

* S. 32 – Dying declaration – Whether statement of deceased recorded by Police Officer in a routine manner as complaint and not as a dying declaration can be relied up – Held, “Yes” provided be was in a fit state of health to make the statement.

In Paras Yadav v. State of Bihar; 1999 SCC (Cri) 104, it was held that the statement of a deceased recorded by a police officer in a routine manner as a complaint and not as a dying declaration can be taken as a dying declaration after the death of the injured if he was found to be in a fit state of health to make a statement. If the dying declaration is recorded by an investigating officer the same can be relied upon if the evidence of the prosecution witness is clearly established beyond reasonable doubt that the deceased was conscious and he was removed to the hospital and he was in a fit state of health to make the statement. In the instant case, the position appears to be different. (State of Rajasthan v. Wakteng; (2009) 3 SCC (Cri) 217)

* S. 32 – Dying declaration – Though conviction can be based solely on the dying declaration without any corroboration, but the same should not be suffering from any infirmity i.e. it should be found to be true and voluntary.

Though conviction can be based solely on the dying declaration, without any corroboration the same should not be suffering from any infirmity.

While great solemnity and sanctity is attached to the words of a dying man because a person on the verge of death is not likely to tell lie or to concoct a case so as to implicate an innocent person but the court has to be careful to ensure that the statement was not the result of either tutoring, prompting or a product of the imagination. It is, therefore, essential that the court must be satisfied that the deceased was in a fit state of mind to make the statement, had clear capacity to observe and identify the assailant and that he was making the statement without any influence or rancour. Once the court is satisfied that the dying declaration is true and voluntary it is sufficient for the purpose of conviction. (State of Rajasthan v. Wakteng; (2009) 3 SCC (Cri) 217)

* S. 32 – Inconsistencies between multiple dying declarations – Effect of – Conviction based on such evidence would be unsafe.

Ext. P-15 (second dying declaration) is not a mere improvement of Ext. P-12 (first dying declaration). The story projected in Ext. P-12 is entirely different from Ext. P-14. The story in Ext. P-12 has been given up and a new case has been projected in Ext. P-14 by introducing new set of eyewitnesses and new set of accused. Hence, both Exts. P-12 and P-14 cannot be believed.

It is seen from the records that three different stories have been projected by the prosecution. As per Ext. P-12 recorded at 12.45 p.m., three persons attacked with sticks in the presence of one eyewitness. As per Ext. C-2 recorded at 2.30 p.m. ten persons attacked with crowbar. As per Ext. P-14 recorded by PW 8 before the death of the deceased at 2.50 p.m. seven persons attacked with sticks in the presence of two new eyewitnesses. No clear answer comes from the prosecution as to which of the three versions is believable. Ext. P-12 suffers from two infirmities. Firstly, medical evidence is contradictory. Secondly, the only eyewitness mentioned in Ext. P-12 was not examined. The non-examination of the said eyewitness would result in the lack of corroboration to Ext. P-12. Above being the position, it would be unsafe to convict the appellant-accused. Their convictions are accordingly set aside. (Vallabhaneni Venkateshwara Rao v. State of Andhra Pradesh; (2009) 2 SCC (Cri) 1118)

* S. 32(1) – Dying declaration – Dumb person’s declaration based on signs.

It appears that the observation of the High Court that the deceased was both deaf and dumb is not based on any material. Apart from the other materials on record, as indicated by us hereto before, even the respondents in their memo of revision had described the deceased merely as a dumb and paralytic person and not a deaf person. Furthermore, it was not the stage where the High Court would prefer one dying declaration to that of the other. (Palwinder Singh v. Balwinder Singh and Others; (2009) 2 SCC (Cri) 850)

* S. 115 – Estoppel and waiver – Principles when not attracted – When order is passed without jurisdiction.

An accused ordinarily would not be presumed to have waived his right. The procedural principles like estoppel or waiver would not be attracted where an order is passed without jurisdiction as the same would be a nullity. An order which is a nullity cannot be brought into effect for invoking the principles like estoppel, waiver or res judicata. (Jayendra Vishnu Thakur v. State of Maharashtra; 2009 AIR SCW 3898 (I)

* S. 115 – Promissory estoppel – Applicability of

            Merely because a candidate has done some preparation for becoming eligible for applying under the advertisement, would not mean that he had invested any amount on any representation being made by the Corporation for giving him the outlet or the agency and, therefore, he cannot claim any right on the principle of doctrine of promissory estoppel nor he could have any legitimate expectation for the contract or award of Kisan Sewa Kendra. Investing money or making arrangement of land only for purpose of becoming eligible for being considered for selection cannot be taken to be a change of stand or incurring liability on representation made by the Corporation that he would be selected. It is known to every candidate that unless he becomes eligible under the terms of the advertisement, he cannot apply and his candidature would be rejected. It is also known to every candidate that despite him being eligible under the terms of the advertisement, he would necessarily not be selected in final panel where his/her candidature will be considered along with all other eligible. It is only, when the selection committee considers the candidature of all candidates who are found eligible after scrutiny of forms that a panel is prepared with maximum three names. Even after the panel is prepared, what right a panelist would have for getting the contract, is also not to be debated for the reason that a candidate on panel does not have any enforceable right, though of course in given facts and circumstances of the case if the exclusion of such candidate or wring placement of a candidate is found, that can be corrected and such a right can be enforced. It can also be said that when a letter of intent is issued and such a person changes and alters his position, a different principle may be applicable in case the letter of intent is later on revoked. But where merely on an advertisement, application is made and the person has not been selected, he cannot raise plea of doctrine of promissory estoppel nor that of legitimate expectation. (Khalid Mohammad Khan v. Union of India & Anr.; 2009(4) ALJ 21)

* Adverse Possession – Ingredients of – A peaceful and continuous possession being the ingredients of the principle of adverse possession.

For claiming title by adverse possession, it was necessary for the plaintiff to plead and prove animus possidendi. A peaceful, and continuous possession being the ingredients of the principle of adverse possession as contained in the maxim nec vi, nec clam, nec precario, long possession by itself would not be sufficient  to prove adverse possession. (Vishwanath Bapurao Sabale v. Shalinibai Nagappa Sabale; 2009(108) RD 71)

* Video CD’s – When cannot be regarded as reliable evidence?

In view of the conflicting versions given in this case, the court finds no reason to disbelieve the report of the Presiding Officer the Additional District Judge Sri S.S. Mishra against whom no motive have been attributed. The fact stated in his report that neither the petitioner nor any other member raised any objection to any videography being done by any person and that no such fact that any videography was being done was brought to his notice indicates that the case about the videography is an after thought. These facts in the report of the Presiding Officer have not been controverted. The court therefore, inclined to accept the version given by the Presiding Officer who holds the rank of an Additional District Judge and to whom no motive for giving a false report has been imputed. Moreover, the petitioner has already filed the photographs of the India TV and of the Aina Vision and there is nothing in these photographs, which may demonstrate that the members were being influenced. In these facts and circumstances the video CD’s cannot be regarded as reliable evidence. (Smt. Ruchi Verma v. State of U.P. & Others; 2009(108) RD 41)

Family Court Act

* S. 19 – Appeal – Limitation to file would be 30 days as prescribed U/s. 19 and not 90 days as prescribed under Hindu Marriage Act.

The limitation provided under the Family Courts Act would prevail over the one which has been provided under the Hindu Marriage Act for the simple reason that the Family Courts Act is in the form of super legislation vis-à-vis the Hindu Marriage Act. Insofar as procedure for settling family/matrimonial disputes is concerned. S. 20 of Family Courts Act in this regard specifically provided that in event of inconsistency between provisions of that Act or any other law for the time being in force, the provisions of Family Courts Act shall prevail.

Accordingly, where the family courts have been established and a judgment and order is passed by it, the appeal against such judgment and order would be one under S. 19 of Family Courts Act and the provisions of S. 28 of Hindu Marriage Act insofar as it provides for filing an appeal pales into insignificance and stand superseded by S. 19 of Family Courts Act. (Ashutosh Kumar v. Anjali Srivastava; AIR 2009 SC 100 (All)

* Possession – Co-sharer has right to transfer his undivided share but cannot put under in possession without physical partition of the undivided landed property.

Without there being any physical formal partition of an undivided landed property, a co-sharer cannot put a vendee in possession although such a co-sharer may have a right to transfer his undivided share. Reliance in this regard may be placed to a decision of the Court in M.V.S. Manikayala Rao v. M. Narasimhaswami and Others; AIR 1966 SC 470, wherein the Court stated as follows:

“Now, it is well settled that the purchaser of a co parcener’s undivided interest in the joint family property is not entitled to possession of what he had purchased. His only right is to sue for partition of the property and ask for allotment to him of that which, on partition, might be found to fall to the share of the coparcener whose share he had purchased.” (Ramdas v. Sitabai & Others; 2009(107) RD 780)

Guardians and Wards Act

* S. 7 – Custody of minor daughter – Application by father – Mother claiming herself to be a prostitute and denying applicant to be father – DNA report in favour of applicant – Custody granted to father.

Everybody was made known that unless any other proof is available to the Court, the Court is compelled to proceed on the basis of contentions of the parties, which have been advanced before the Court, and come to an appropriate finding. The Court finds from the evidence, materials and arguments put forth before the Court that there is sufficient reason to believe that the child was born in their wedlock and, therefore, the paramount consideration is welfare of the child and it is correct to say that the child’s welfare cannot be protected if she is given in such a society, to which her mother belongs. If her mother separates herself from such society and lives with the respondent/applicant permanently, that will be for the benefit of the family as well as for the child but the Court cannot compel them therefore in this proceeding. However, the Court can, at best, wish for their betterment. But so far as child is concerned, she will be definitely given in the custody of her father (respondent/applicant), who besides being financially sound is well educated and lives in a reputed society and he is able to protect the welfare of the child.

Considering all pros and cons of the matter, ultimately today an order has been passed by the Court to handover the child in the custody of the respondent/applicant. (Smt. Mamta Singh & Anr. v. Kamal Kant Gautam; 2009(4) ALJ 177)

* S. 17 – Custody of child – Right of natural guardian is not absolute – Paramount consideration for deciding custody is welfare of child.

In the instance case child looked after by his maternal grandmother right from his brith – Grandmother financially sound – Had bestowed her attention throughout for welfare of child after death of her only daughter – Father of child having meagre income – Indebted to many persons – Had re-married and also has a child – Father has to be out of house frequently on account of his business – Child has remained with grandmother for long time and is growing up well in an atmosphere which is conducive to its growth – In circumstances maternal grandmother allowed to retain custody of child. (Anjali Kapoor, Smt. V. Rajiv Baijal; 2009 AIR SCW 4302)

Hindu Adoption and Maintenance Act

* S. 120 – Effect of adoption – Adopted son can claim all benefits like real son of deceased including compassionate appointment.

            With effect from the date of adoption, the adopted child shall be deemed to be the child of his or her adoptive father or mother for all purposes and would be engrafted in the family of his/her adoptive mother and father and from such date all the ties in the family of his or her birth shall be deemed to be severed and replaced by these created by adoption the adopted child gets all the rights, privilege and obligations of child in the adoptive family, therefore, there remains no difference between real child and adopted child and if the adoption is registered under any law for time being in force. It shall be presumed that adoption has been done in accordance with the provisions of law unless and until it is disproved.

Thus the adopted son shall be included within meaning of son, defined as member of family of deceased included within meaning of son, defined as member of family of deceased Government servant under Dying in Harness Rules, 1974 and he can claim all the benefits like real son of the deceased including compassionate appointment under aforesaid Rule.  (Shiv Prasad v. State of U.P. & Ors.; 2009(5) ALJ 98)

Hindu Marriage Act

* S. 13 – Divorce – Ground of – Irretrievable breaking down of marriage is not ground for divorce.

            So far as the submission that both parties are not living together since 10-12 years and therefore, marriage should be treated to have broken down, in support of which series of decision of the Apex Court were shown to the Court, suffice it to say that living separate for a quite long period, is not a ground given in Section 13 of Hindu Marriage Act on which decree for divorce can be granted. The decree for divorce is to be granted only on the ground so stated in Section 13 of Hindu Marriage Act.

            Apex Court in a recent decision in the case of Vishnu Dutt Sharma, SLP © No. 13166 of 2007. Ruled that even if the parties are not living together since long, that cannot be treated to be a ground for divorce and the argument of break down in the marriage is not to be accepted and on this ground, decree of divorce is not to be maintained.

            The observation of the Apex Court in this report is to be quoted here:

“On a bare reading of Section 13 of the Act, reproduced above, it is crystal clear that no such ground of irretrievable breakdown of the marriage is provided by the legislature for granting a decree of divorce. The Court cannot add such a ground to Section 13 of the Act as that would be amending the Act, which is a function of the legislature.”

            A mere direction of the Court without considering the legal position is not a precedent. If the court grant divorce on the ground of irretrievable breakdown, then the court shall by judicial verdict be adding a clause to Section 13 of the Act to effect that irretrievable break down of the marriage is also a ground for divorce. In the opinion of the Court, this can only be done by the legislature and not by the Court. It is for the Parliament to enact or amend the law and not for the Courts. (Smt. Purnima Gupta v. Ajit Kumar Gupta; 2009(4) ALJ 186)

Hindu Succession Act

* S. 14(1) – In view of S. 14(1), Hindu female is now full owner of property possessed by her.

The principle laid down in section 14(1) of the said Act has been read by Courts in a very comprehensive manner since the said Act overrides the old law on Stri Dhana in respect of properties possessed by female Hindu. In Eramma v. Veerupana and others; AIR 1966 SC 1879, Justice Ramaswami speaking for the Court held that section 14(1) of the Act contemplates that a female Hindu, who in the absence of the said provision would have been a limited owner of the property, will now become full owner by virtue of the said section. Such female Hindu will have all powers of disposition to make the estate heritable by their own heirs and not revertible to the heirs of the last male holder. (Gangamma etc. v. G. Nagarathnamma & Others; 2009(108) RD 68)

* Hindu Coparcenary – Much narrower body than the joint family.

A Hindu Coparcenary is a much narrower body than the joint family. It includes only those persons, who acquire by birth an interest in the joint or coparcenery property (211, Mulla’s Hindu Law, 20th Edition, 2007), Mulla’s Hindu Law, 20th Edition, 2007). In the same article, in the next paragraph, it has been stated as under:

“to understand the formation of a coparcenery, it is important to note the distinction between ancestral property and separate property. Property inherited by a Hindu from his father, father’s father or father’s father’s father is ancestral property. Property inherited by him from relations is his separate property. The essential feature of ancestral property is that if the person inheriting it has sons, grandsons or great grand-sons, they become joint owner’s coparcenary with him. They become entitled to it due to their birth”.

For these principles, reference may also be made to State Bank of India v. Ghamandi Ram; AIR 1969 SC 1330, C.N. Arunachala Mudaliar v. C.A. Muruganatha Mudaliar; AIR 1953 SC 495. (Son can assert an equal right with the father only when the grand-father’s property has devolved upon his father and has become ancestral property in his ends) and the authorities mentioned in the aforesaid Article 211 of Mulla’s Hindu Law. It is also stated in the aforesaid Article 211 as follows:

“Ancestral property is species of coparcenary property. As stated above, if a Hindu inherited property from his father, it becomes in his hands as regards his son. In such a case, it is said that the son becomes a coparcener with the father as regards the property so inherited and the coparcenary consists of the father and the son.”

In N.V. Narendranath v. Commissioner of Wealth Tax, Andhra Pradesh; AIR 1970 SC 14, it has been held that a Hindu Coparcenery is a much narrower body than the Hindu Joint Family. (Moti Lal (Dead) & Others; Suresh Chandra & Others; 2009(108) RD 47)

Indian Easement Act

* S. 12 – Maintainability of suit by statutory corporation – Statutory corporation has locus standi to maintain suit for easementary rights.

If the provisions of Section 92 of the Code of Civil Procedure were not attracted, the suit by the Corporation which is also a statutory corporation, in the opinion of the Court, was maintainable. (Mandal Panchayat, Hunsagi v. North-Eastern Karnataka Road Transport Corporation; (2009) 7 SCC 450)

Indian Penal Code

* S. 34 – Applicability of.

Section 34 has been enacted on the principle of joint liability in the doing of a criminal act. The section is only a rule of evidence and does not create a substantive offence. The distinctive feature of the section is the element of participation in action. The liability of one person for an offence committed by another in the course of criminal act perpetrated by several persons arises under Section 34 if such criminal act is done in furtherance of a common intention of the persons who join in committing the crime. Direct proof of common intention is seldom available and, therefore, such intention can only be inferred from the circumstances appearing from the proved facts of the case and the proved circumstances. In order to bring home the charge of common intention, the prosecution has to establish by evidence, whether direct or circumstantial, that there was a plan or meeting of minds of all the accused persons to commit the offence for which they are charged with the aid of Section 34, be it pre-arranged or on the spur of the moment; but it must necessarily be before the commission of the crime. The true content of the section is that if two or more persons intentionally do an act jointly, the position in law is just the same as if each of them has done it individually by himself. As observed in Ashok Kumar v. State of Punjab; (1977) 1 SCC 746 = AIR 1977 SC 109, the existence of a common intention amongst the participants in a crime is the essential element for application of this section. It is not necessary that the acts of the several persons charged with commission of an offence jointly must be the same or identically similar. The acts may be different in character, but must have been actuated by one and the same common intention in order to attract the provision.

The section does not say ‘the common intention of all’ nor does it say ‘an intention common to all’. Under the provisions of Section 34 the essence of the liability is to be found in the existence of a common intention animating the accused leading to the doing of a criminal act in furtherance of such intention. As a result of the application of principles enunciated in Section 34, when an accused is convicted under Section 302 read with Section 34, in law it means that the accused is liable for the act which caused death of the deceased in the same manner as if it was done by him alone. The provision is intended to meet a case in which it may be difficult to distinguish between acts of individual members of a party who act in furtherance of the common intention of all or to prove exactly what part was taken by each of them. As was observed in Chinta Pulla Reddy v. State of A.P.; AIR 1993 SC 1899. Section 34 is applicable even if no injury has been caused by the particular accused himself. For applying Section 34 it is not necessary to show some overt act on the part of the accused. (Hardeep Singh & Others v. State of Haryana; (2009) 2 SCC (Cri) 770)

* Ss. 96 to 106 – Right of private defence – Principles, restated.

The only question which needs to be considered is the alleged exercise of right of private defence. Section 96 IPC provides that nothing is an offence which is done in the exercise of the right of private defence. The section does not define the expression ‘right of private defence’. It merely indicates that nothing is an offence which is done in the exercise of such right. Whether in a particular set of circumstances, a person legitimately acted in the exercise of the right of private defence is a question of fact to be determined on the facts and circumstances of each case. No test in the abstract for determining such a question can be laid down. In determining this question of fact, the court must consider all the surrounding circumstances. It is not necessary for the accused to plead in so many words that he acted in self-defence. If the circumstances show that the right of private defence was legitimately exercised, it is open to the court to consider such a plea. In a given case the court can consider it even if the accused has not taken it, if the same is available to be considered from the material on record. Under Section 105 of the Evidence Act, 1872 (in short ‘the Evidence Act’), the burden of proof is on the accused, who sets up the plea of self-defence, and, in the absence of proof, it is not possible for the court to presume the truth of the plea of self-defence. The court shall presume the absence of such circumstances. It is for the accused to place necessary material on record either by himself adducing positive evidence or by eliciting necessary facts from the witnesses examined for the prosecution. An accused taking the plea of the right of private defence is not necessarily required to call evidence; he can establish his plea by reference to circumstances transpiring from the prosecution evidence itself. The question in such a case would be a question of assessing the true effect of the prosecution evidence, and not a question of the accused discharging any burden. Where the right of private defence is pleaded, the defence must be a reasonable and probable version satisfying the court that the harm caused by the accused was necessary for either warding off the attack or for forestalling the further reasonable apprehension from the side of the accused. The burden of establishing the plea of self-defence is on the accused and the burden stands discharged by showing preponderance of probabilities in favour of that plea on the basis of the material on record.

The accused need not prove the existence of the right of private defence beyond reasonable doubt. It is enough for him to show as in a civil case that the preponderance of probabilities is in favour of his plea.

The number of injuries is not always a safe criterion for determining who the aggressor was. It cannot be stated as a universal rule that whenever the injuries are on the body of the accused persons, a presumption must necessarily be raised that the accused persons had caused injuries in exercise of the right of private defence. The defence has to further establish that the injuries so caused on the accused probabilise the version of the right of private defence. Non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance. But mere non-explanation of the injuries by the prosecution may not affect the prosecution case in all cases. This principle applies to cases where the injuries sustained by the accused are minor and superficial or where the evidence is so clear and cogent, so independent and disinterstated, so probable, consistent and creditworthy, that it far outweighs the effect of the omission on the part of the prosecution to explain the injuries.

The right of private defence is essentially a defensive right circumscribed by the governing statute i.e. IPC, available only when the circumstances clearly justify it. It should not be allowed to be pleaded or availed as a pretext for a vindictive, aggressive or retributive purpose of offence. It is a right of defence, not for retribution, expected to repeal unlawful aggression and not as retaliatory measure. While providing for exercise of the right, care has been taken in IPC not to provide and has not devised a mechanism whereby an attack may be pretence for killing. A right to defend does not include a right to launch an offensive, particularly when the need to defend no longer survived. (Narain Singh & Others v. State of Haryana; (2009) 2 SCC (Cri) 762)

* S. 149 – Object of – Mean of – Emphasis in S. 149 is on common object and not on common intention.

            The emphasis in Section 149, IPC is on the common object and not on common intention. Mere presence in an unlawful assembly cannot render a person liable unless there was a common object and he was actuated by that common object and that object is one of those set out in Section 141. Where common object of an unlawful assembly is not proved, the accused persons cannot be convicted with the help of Section 149. (Bhupendra Singh & Ors. v. State of U.P.; 2009(4) ALJ 317)

* S. 149 – Distinction between two parts of provision and same cannot be obliterated or ignored.

Section 149 IPC consists of two parts. The first part of the section means that the offence to be committed in prosecution of the common object must be one which is committed with a view to accomplish the common object. In order that the offence may fall within the first part, the offence must be connected immediately with the common object of the unlawful assembly of which the accused was a member. Even if the offence committed is not in direct prosecution of the common object of the assembly, it may yet fall under Section 141, if it can be held that the offence was such as the members knew was likely to be committed and this is what is required in the second part of the section.

The distinction between the two parts of Section 149 cannot be ignored or obliterated. In every case it would be an issue to be determined, whether the offence committed falls within the first part or it was an offence such as the members of the assembly knew to be likely to be committed in prosecution of the common object and falls within the second part. However, there may be cases which would be within the first part but offences committed in prosecution of the common object; would be generally, if not always, be within the second part, namely, offences which the parties knew to be likely to be committed in the prosecution of the common object. (Bhupendra Singh & Ors. v. State of U.P.; 2009(4) ALJ 317)

* S. 149 & 34 – Distinction between “common object” and “common intention”.

In Munna Chanda v. State of Assam; (2006) 3 SCC 752, the Court held that the concept of common object, it is well known, is different from common intention. It is true that so far as common object is concerned no prior concert is required. Common object can be formed on the spur of the moment. Course of conduct adopted by the members of the assembly, however, is a relevant factor. At what point of time the common object of the unlawful assembly was formed would depend upon the facts and circumstances of each case. (Akbar Sheikh v. State of W.B.; (2009 7 SCC 415)

* S. 300 – Murder Proof of

In this case though one pellet was recovered and there was only one injury. But that does not on the facts of the case take the offence out of the purview of Section 302, IPC. It cannot be laid down as a rule of universal application that when there is one shot fired, Section 302 IPC is ruled out. It would depend upon the factual scenario, more particularly, the nature of weapon, the place where the injury is caused and the nature of the injury. In the instant case it has been clearly established that the accused aimed at the head of the deceased and fired the shot which hit him on his head and that too was fired from a close range.

Above being the position the applicable offence is Section 302, IPC. (Joginder Singh v. State of Punjab; 2009 Cri.L.J. 2805)

* S. 302 r/w S. 149 – Discrepancy between ocular and medical evidence – Effect of

So far as the alleged discrepancy between medical evidence and ocular evidence is concerned, it is to be noted as rightly done by the High Court that the incident occurred around midnight when six murders were committed one after another. In such circumstances it was practically not possible for any witness to ascribe pinpointed role or the kind of weapons with which blows were given. In an incident when killing of so many persons took place, it would be difficult for a witness to remember with precision the kind of weapon used by a particular accused. It is to be noted that evidence of the witnesses are not liable for rejection on the hypothetical so-called medical discrepancy. (State of Uttar Pradesh v. Sattan alias Satyendra and Others; (2009) 2 SCC (Cri) 572)

* S. 304 – Offence under – Invocation of.

Before Section 304 IPC can be invoked, the ingredients which must be satisfied are: (i) the death of the person must have been caused; (ii) such death must have been caused by the act of the accused by causing bodily injury; (iii) there must be an intention on the part of the accused (a) to cause death; or (b) to cause such bodily injury which is likely to cause death (Part I); or (iv) there must be knowledge on the part of the accused that the bodily injury in such that it is likely to cause death (Part II). (Mahadev Prasad Kaushik v. State of Uttar Pradesh and Another; (2009) 2 SCC (Cri) 834)

* Ss. 304-Part II & S. 300 – Murder – Applicability of

The question with regard to finding out the intention on the part of the accused to cause death depends upon the facts and circumstances of each case. No hard and fast rule can be laid down thereof. Section 300 of the Code provides that subject to the exceptions contained therein culpable homicide would be murder if the act by which the death is caused is done with the intention of causing death. Exception-1 thereto providing for a situation when culpable homicide is not murder. In terms of Exception-1, culpable homicide is not murder if the offender, whilst deprived of the power of self-control by grave and sudden provocation, causes the death of the person who gave the provocation or causes the death of any other person by mistake or accident. The said provision is, however, subject to the following:

“First – That the provocation is not sought or voluntarily provoked by the offender as an excuse for killing or doing harm to any person.

Secondly. – That the provocation is not given by anything done in obedience to the law, or by a public servant in the lawful exercise of the powers of such public servant.

Thirdly.  – That the provocation is not given by anything done in the lawful exercise of the right of private defence.”

The Explanation appended thereto states that whether the provocation was grave and sudden enough to prevent the offence from amounting to murder is a question of fact. It is not a case of exercise of right of private defence. The provocation was not given by a thing done in obedience to the law, or by a public servant in the lawful exercise of the powers of such public servant. The provocation, if any, was sought for by the offenders. In this case, appellant and Iqbal must be held to have known that it was so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death.

Therefore, the Court is of the opinion that the appellant has rightly been found guilty of commission of an offence under Section 302 of the IPC, instead of S. 304, Part II. (Mohd. Asif v. State of Uttaranchal; 2009 Cri.L.J. 2789)

* Ss. 304-B & 498-A – Comparative – Scope.

The ingredient of cruelty is common to Sections 304-B and 498-A IPC, but the width and scope of the two sections is different, inasmuch as Section 304-B deals with cases of death as a result of cruelty or harassment within seven years of marriage. Section 498-A has a wider spectrum and it covers all cases in which the wife is subjected to cruelty by her husband or relative of the husband which may result in death by way of suicide or cause grave injury or danger to life, limb or health (whether mental or physical) or even harassment caused with a view to coerce the woman or any person related to her to meet unlawful demand for property or valuable security.

In order to bring home charge under Section 304-B IPC, the prosecution is required to establish that the death of the woman has been caused by burns or bodily injury or otherwise than under normal circumstances within seven years of her marriage and soon before her death, the woman is subjected to cruelty or harassment by her husband or his relative. However, for the purpose of conviction under Section 498-A IPC, it is sufficient to prove that the woman was subjected to cruelty, as elucidated in the Explanation appearing below substantive part of the section, by her husband or his relative. (Dinesh Seth v. State of NCT of Delhi; (2009) 2 SCC (Cri) 783)

* Ss. 375 & 376 – Rape – Ingredients of rape reiterated – For satisfying ingredients of rape, it is not necessary that there should be complete penetration.

In Modi’s Medical Jurisprudence, it is stated that to constitute the offence of rape, it is not necessary that there should be complete penetration of the penis with the emission of semen and the rupture of hymen. Partial penetration of the penis within the labia majora or the vulva or pudenda, with or without the emission of semen, or even an attempt at penetration is quite sufficient for the purpose of law. It is, therefore, quite possible to commit legally, the offence of rape without producing any injury to the genitals or leaving any seminal stains.

For the purpose of satisfaction of the ingredients of rape, it is not necessary that there should be complete penetration. (See: Aman Kumar v. State of Haryana; 2004 SCC (Cri) 1266 at SCC P. 386. (Satyapal v. State of Haryana; (2009) 3 SCC (Cri) 108)

* S. 376 – Rape – Consent of prosecutrix – Determination of

That the radiological age of the girl has been assessed about 17 years which if interpreted even slightly on the higher side then she was more than 17 years old i.e. about 18 years. It is a settled law that there can be variation of two years in age on either side. It is submitted that if a favourable interpretation of only one year is made in favour of the convict/appellant her age comes to 18 and, as such, she being an adult was capable of giving consent. He further submits that her being a consenting party is apparent from her entire conduct from the day she left her house and went along with the aforesaid two ladies namely Laxmi and Vidya (niece and sister of the appellant respectively) and reached Mangat Khera along with present appellant and then went to Unnao by bus and then to Delhi by train and then stayed there for about 7-8 days in the company of both the above ladies as also the appellant in a room belonging to one Hanuman Prasad a relative of the appellant. Thereafter the appellant got a railway ticket purchased for her. Then she came back to her village on her own on 9.8.2004. Then only the recovery memo (Ext. Ka-8) is said to had been prepared by the police when coincidentally the police had come in that village and found that she has returned back on her own. In her medical examination no injury was found either in the internal part or anywhere. Even any spermatozoa were also not found. Thus, nothing was found to show any sexual assault or alleged rape. In her medical examination she was rather found to be habitual of sexual intercourse. These arguments have substance. The learned court below has not taken into consideration these significant points properly. It only observed that if prosecutrix had given consent for going along with two ladies and the appellant up to Delhi it does not mean that she had given consent for sexual intercourse also. It is true but the court cannot ignore some significant facts and surroundings circumstances.

The absence of any mark of injury or spermatozoa or symptom of sexual assault also suggests that she was a consenting party. In this case the court intended to give at least benefit of doubt to appellant and allow his appeal and set aside the conviction. (Ram Bali v. State of U.P.; 2009(5) ALJ 72)

* S. 498-A – Whether “relative of the husband” in S. 498-A includes “girl friend” or “concubine” – Held, “No”.

Section 498-A is a penal one. It, thus, deserves strict construction. Ordinarily, save and except where a contextual meaning is required to be given to a statute, a penal provision is required to be construed strictly.

By no stretch of imagination would a girlfriend or even a concubine in an etymological sense be a “relative”. The word “relative” brings within its purview a status. Such a statuts must be conferred either by blood or marriage or adoption. If no marriage has taken place, the question of one being relative of another would not arise.

In the absence of any statutory definition, the term “relative” must be assigned a meaning as is commonly understood. Ordinarily it would include father, mother, husband or wife, son, daughter, brother, sister, nephew or niece, grandson or grand daughter of an individual or the spouse of any person. The meaning of the word “relative” would depend upon the nature of the statute. It principally includes a person related by blood, marriage or adoption. (U. Suvetha v. State by Inspector of Police and Another; (2009) 3 SCC (Cri) 36)

* S. 498-A – Ingredients of – Re-enumerated.

Ingredients of Section 498-A of the Penal Code are:

(a)        The woman must be married;

(b)        She must be subjected to cruelty or harassment; and

(c)       Such cruelty or harassment must have been shown either by husband of the woman or by the relative of her husband.

The appellant herein had not been charged for abetment of a crime. Any conspiracy amongst the accused persons has also not been alleged. A woman in terms of the aforementioned provision must be subjected to cruelty by her husband and/or his relative. The word “cruelty” has also been defined in the Explanation appended thereto. It is in two parts. Clause (a) of the said Explanation refers to a conduct which is likely to drive the woman to commit suicide or to cause grave injury or danger to her life, limb or health (whether mental or physical); Clause (b) provides for harassment of the woman, where such harassment, is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security. It is not the case of the first informant that the appellant had any role to play with regard to demand of dowry.

The word “cruelty” having been defined in terms of the aforesaid Explanation, no other meaning can be attributed thereto. Living with another woman may be an act of cruelty on the part of the husband for the purpose of judicial separation or dissolution of marriage but the same, in the opinion of the Court, would not attract the wrath of Section 498-A of the Penal Code. An offence in terms of the said provision is committed by the persons specified therein. They have to be the “husband” or his “relative”. Either the husband of the woman or his relative must have subjected her to cruelty within the aforementioned provision. If the appellant had not (sic) been instigating the husband of the first informant to torture her, as has been noticed by the High Court, the husband would be committing some offence punishable under the other provisions of the Penal Code and the appellant may be held guilty for abetment of commission of such an offence but not an offence under Section 498-A of the Penal Code. (U. Suvetha v. State by Inspector of Police and Another; (2009) 3 SCC (Cri) 36)

* Ss. 498-A & 300 – Cruelty and Murderer – Proof of

The evidence of PWs 1, 2, 4, 7, 8 and 14 clearly establish that the body was found in the matrimonial home of the deceased with injuries noticed by them which fit in with the evidence of the Autopsy Surgeon (PW – 15). The evidence of PWs 2, 4, 7 and 8 throw considerable light on the controversy. The death took place within one year and four months of the marriage in the house of the accused persons and the dead body was found with injuries. At the relevant time the accused persons were absconding which is of considerable importance. The plea of alibi set up by the present appellant has been discarded because there was no material to substantiate such plea. The trial Court and the High Court have analyzed this aspect in great detail. From the evidence of PWs 2, 4, 7 and 8 it is seen that the accused persons were absconding since the date of incident when the dead body of the deceased lay in her matrimonial home. PW 14 the Investigating Officer’s evidence was to that effect. The High Court has rightly noted that the conduct of the accused appellants before it had a striking feature in the absence of any reasonable explanation and is an inculpating circumstance against them. (Krishna Ghosh v. State of West Bengal; 2009 Cri.L.J. 2820)

Indian Succession Act

* Ss. 68 & 63(c) – Will proof of – to be proved not only by proving the signature of the executor – But it should be found to be free from any suspicious circumstances.

The law in regard to proof of a valid Will is now well settled.

It has to be proved not only by proving the signature of the executor but it should be found to be free from any suspicious circumstances. Section 63(c) of the Indian Succession Act reads as under:

“Section 63.-executionof unprivileged Wills.- Every testator, not being a soldier employed in an expedition or engaged in actual warfare, ‘[or an airman so employed or engaged,] or a mariner at sea, shall execute his Will according to the following rules:-

(a)    and (b) …

(c)    The Will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the Will or has seen some other person sign the Will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgement of his signature or mark, or of the signature of such other person; and each of the witnesses shall sign the Will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary.”

Indisputably, the said provision is mandatory in nature. A Will is required to be attested by two or more witnesses.

Section 68 of the Evidence Act provides that the propounder must prove execution and attestation of the Will by examining at least one of the attesting witnesses. (Lalitaben Jayantilal Popat v. Pragnaben Jamnadas Kataria & Others; 2009(107) RD 425)

* Grant of probate – Necessity of – To obtain probate on Will is optional in U.P.

In some of the States of India, grant of probate by the appropriate Court of law on the Will is compulsory and some of the States it is optional. In the State of U.P., obtain probate on the Will is optional, therefore, as soon as the testator dies and Will comes into light, it operates as a valuable instrument in favour of the person in whose favour property is devolved by such Will. If such person seeks a probate before the Court by filing it, no question of ad valorem Court-fee will be applicable but it will be paid as soon as Court will grant such probate in his favour. (Smt. Rajni Swami v. Smt. Shakuntala Sharma; 2009(107) RD 442)

Indian Stamp Act

* S. 69 – Applicability of

It is wholly immaterial whether appellants are purchasing the insurance stamps from the State of U.P. or from any other State. In fact, as mentioned earlier. Rules 115-A of the U.P. Stamp Rules itself declares that ‘Stamps which are the property of the Central Government’. That being the legal position, it is legally untenable to contend that the insurance stamps must be purchased from the State of U.P. only. Further, it must be kept in mind that Section 69 of the Stamps Act will also have no application as, admittedly; the appellants are neither the stamp vendors nor doing any unauthorized sale of the insurance stamps. (V.V.S. Rama Sharma & Ors. v. State of U.P. & Ors.; 2009(40 ALJ 309)

* Nature of – A taxing statute.

It is an acknowledged legal position that there are two guiding principles for applicability of the Stamp Act in respect of a particular document. They are:-

(1)               The Court is not bound by the apparent tenor of an instrument, it shall decide according to the real nature or substance of the document; and

(2)               The duty is on the instrument and not on the transaction.

To answer as to under what Article the instrument falls, the first thing to be looked into is the document itself in order to determine the character thereof. Applying the above principle of law, in the view of the court, for the purposes of determining the stamp duty, the document should be taken into account and not the transaction. (Nand Kumar Agarwal v. State of U.P. & Others; 2009(107) RD 438)

* Stamp duty – Determination of – Document should be taken into account and not the transaction.

It is equally well settled that Stamp Act is a taxing statute. It must be construed strictly, and if two meanings are equally possible, the meaning in favour of the subject must be given effect to (See: Board of Revenue v. Rai Saheb Sidhnath; AIR 1965 SC 1092). (Nand Kumar Agarwal v. State of U.P. & Others; 2009(107) RD 438)

Interpretation of Statutes

* Subsidiary Rules – Construction in favour of Constitutionality.

The provisions of the Act must be interpreted in a manner so that its constitutionality is upheld. The validity of the provisions might have received constitutional protection, but when stringent laws become applicable as a result whereof some persons are to be deprived of his/her right in a property, scrupulous compliance with the statutory requirements is imperative. (Aslam Mohammad Merchant v. Competent Authority and Others; (2009) 2 SCC (Cri) 793)

* Taxing statute – Interpretation of – Equity has no role to play.

In interpreting a taxing statute, it has been said time and again, that equity has no role to play. Equitable considerations are entirely out of place. Nor can taxing statutes be interpreted on any presumptions or assumptions. The Court must look squarely at the words of the statute and interpret them. It must interpret a taxing statute in the light of what is clearly expressed; it cannot imply anything which is not expressed; it cannot import provisions in the statutes so as to supply any assumed deficiency. (Nand Kumar Agarwal v. State of U.P. & Others; 2009(107) RD 438)

Juvenile Justice (Care & Protection of Children) Act

* S. 2(k) & 68 of U.P. Juvenile Justice (Care & Protection of Children) Rules, 2004, Rule 22(5) – Juvenile – Determination of age.

It is to be noted that the High Court found that the school certificates produced clearly believed the claim of respondent No. 1. The High Court has categorically found that the various records relied upon by respondent No. 1 were not reliable. The trial Court and the High Court also held that the mother’s evidence was also not acceptable because it was based on estimations. Strangely the High Court relied upon a certificate of a doctor which did not even indicate the basis on which it was observed that the radiology age of respondent No. 1 was about 18 years.

That being so, the abrupt conclusion of the High Court about the age of respondent No. 1 cannot be maintained. (Pappu v. Sonu & Anr.; 2009(5) ALJ 276 (SC [From: Allahabad; Cri. Revn. No. 1992 of 2007, D/7.9.2007 (All]))

* Ss. 32 & 2(h) – Doubt regarding age of accused on the date of occurrence – Duty

The appellant was prosecuted under Section 302 IPC. The occurrence took place on 20.4.1998. He was arrested on the charge of murder of one R on 8.5.1998. Upon completion of investigation a charge-sheet was filed against him on 30.11.1998. The trial court delivered a judgment on 28.4.2000. An application filed for sending him to Borstal School in terms of Section 10-A of the Tamil Nadu Borstal Schools Act, was refused. An appeal preferred by the appellant before the High Court was dismissed by reason of the impugned judgment.

Allowing the appeal, the Supreme Court held-

In a situation of this nature, where despite the possibility of a juvenile having been tried and convicted for rigorous imprisonment for life by the trial court or the High Court, the Supreme Court has in a large number of decisions directed an enquiry to be made as regards the age of the juvenile. The trial Judge should be directed to hold the enquiry in regard to the age of the appellant on the date of commission of the offence and in the event it is found that the appellant was a juvenile within the meaning of the provisions of the Juvenile Justice Act, 1986 he should proceed with the matter in accordance with law. (Balu alias Bakthvatchalu v. State of Tamil Nadu; (2009) 2 SCC (Cri) 829)

Land Acquisition Act

* S. 5-A – Nature of – A safeguard against the arbitrary exercise of power by the state.

There is no gainsaying in the fact that this right to file objection under section 5-A is a valuable right and the Governments are not given a free hand to dispense with section 5-A. Section 5-A is only a safeguard against the arbitrary exercise of the power by the State. But one should also not lose sight of the fact that invocation of such a provision is also sometimes imperative as in order to meet the urgency of the situation it needs to be invoked in public interest. It depends upon case to case. Sometimes it may not be necessary at all and the State functionaries may sometime out of over jealousness may invoke this provision which would seriously jeopardize the interest of the people. Therefore, it depends upon case to case where in a given situation section 5-A has been correctly invoked and the authorities were satisfied in an objective manner.

In the light of these facts it cannot be said that invoking of power was in any way improper exercise. There is need for decongestion of the traffic and it is really the dire need of the hour and earliest it is implemented, better for the people at large. (M/s. Sheikhar Hotels Gulmohar Enclave & Another v. State of U.P. & Others; 2009(107) RD 465)

* S. 17(4) – Right of landlord to file objection when can be taken away? – Not only if condition precedents for exercise of such emergency power stood satisfied.

Right to file objection and hearing thereof to a notification issued by the appropriate Government expressing its intention to acquire a property is a valuable right. Such a valuable right of hearing and particularly in a case of this nature could have been taken away only if conditions precedent for exercise of this emergency power stood satisfied. Sub-section (4) of section 17 of the Act is an exception to section 5-A of the Act. (Mahender Pal v. State of Haryana; 2009(107) RD 784)

r

Legal Services Authority Act

* S. 22 – Applicability of – Disputes cannot be referred to private legal aid services/non governmental organization for settlement.

The Lok Adalat and Permanent Lok Adalat have been vested with powers as enumerated under Section 22 of the 1987 Act while deciding a case brought before it. Under the 1987 Act no private legal aid society or non governmental organization has been given any role in the settlement of any dispute.

The 1987 Act contains provisions for providing financial aid to voluntary organizations and social action groups. The 1987 Act has been enacted to give effect to the object and purpose of Article 39-A of the Constitution.

Thus, when the 1987 Act provides complete mechanism for settlement of dispute through Lok Adalat and Permanent Lok Adalat the rights and obligations of the parties and their role have to be found out from the 1987 Act itself. The provisions of the 1987 Act do not contain any indication that the cases have to be referred to voluntary organizations for settlement. The settlement of cases have to take place according to the 1987 Act by Lok Adalats and Permanent Lok Adalats, hence, petition seeking reference to private legal aid societies/Non-Governmental Organizations for settlement would not be maintainable. (Arun Kumar Upadhyay v. State of U.P. & Ors.; 2009(5) ALJ 338)

Limitation Act

* S. 5 – Condonation of delay – Proof by sufficient cause is a condition precedent for exercise of the extraordinary discretion vested in the court.

The proof by sufficient cause is a condition precedent for exercise of the extraordinary discretion vested in the court. What counts is not the length of the delay, but the sufficiency of the cause and shortness of the delay is one of the circumstances to be taken into account in using the discretion. In N. Balakrishnan v. M. Krishnamurthy; AIR 1998 SC 3222, it was held by the Court that Section 5 is to be construed liberally so as to do substantial justice to the parties. The provision contemplates that the court has to go in the position of the person concerned and to find out if the delay can be said to have resulted from the cause which he had adduced and whether the cause can be recorded in the peculiar circumstances of the case as sufficient.

What constitutes sufficient cause cannot be laid down by hard-and-fast rules. In New India Insurance Co. Ltd. v. Shanti Mishra; (1975) 2 SCC 840, the Court held that discretion given by Section 5 should not be defined or crystallized so as to convert a discretionary matter into a rigid rule of law. (State (NCT of Delhi) v. Ahmed Jaan; (2009) 2 SCC (Cri) 864)

* Ss. 5 & 14 – Purpose of – These sections meant for grant of relief where mistake committed.

The question which arises for consideration is as to whether only because a mistake has been committed by or on behalf of the appellants in approaching the appropriate forum for ventilating their grievances, the same would mean that the provision of sub-section (2) of section 14 of the Limitation Act, which is otherwise available, should not be taken into consideration at all. The answer to the said question must be rendered in the negative. The provisions contained in section 5 and 14 of the Limitation Act are meant for grant of relief where a person has committed some mistake.

The provisions of section 5 and 14 of the Limitation Act alike should, thus, be applied in a broad-based manner. When sub-section (2) of section 14 of the Limitation Act per se is not applicable, the same would not mean that the principles akin thereto would not be applied. Otherwise, the provisions of section 5 of the Limitation Act would apply. There cannot be any doubt whatsoever that the same would be applicable to a case of this nature. (Bijnesh & Another v. Dy. Director of Consolidation, Banda & Others; 2009(108) RD 22)

Motor Vehicles Act, 1988

* S. 149 (2) (a) – Breach of specified condition of policy – Burden of proof – Determination of.

In terms of Section 149 of the Act, the Insurance Company would be liable to pay the awarded amount to the claimants provided the accident is covered by the terms of the policy, although the burden in respect thereof would be on the Insurance Company.

It is now well settled in view of Section 58 of the Evidence Act that facts admitted need not to be proved. (Bhuwan Singh v. Oriental Insurance Company Ltd. & Another; (2009) 2 SCC (Cri) 619)

* S. 163-A – Maintainability of claim for compensation – Application can be made either 163-A or U/s. 166 of Act, but it cannot be made under both Ss. 163-A & S. 166.

Claim for compensation – Application can be made either under S. 163-A or under S. 166 of Act – Application made both under S. 163-A and under S. 166 cannot be allowed. (Oriental Insurance Co. Ltd., Lalitpur v. Bahoran Singh & Ors.; 2009(4) ALJ (NOC) 718 (All)

* S. 166, 169 and Sch. II Note 5 – Permanent total disablement and permanent partial disablement – Distinction between.

The distinction between “permanent total disablement” and “permanent partial disablement” is that whereas in the former it is 100% disablement, in the latter it is only the disablement to the extent specified in Schedule I to the 1923 Act. Similar terms have been used in clauses (a) and (b) of Para 5 of Schedule II of the Motor Vehicles Act. It, by reference, incorporates the provisions of Schedule I of the 1923 Act. Indisputably, therefore, the Note appended thereto would not only be applicable to the cases falling under the 1923 Act but apply to the cases which fall under the 1988 Act as well.

The respondent admitted that he had not suffered any permanent disability. He, even according to the Chief Medical Officer, suffered only 15% disability. In the present case, there was nothing to show that the respondent had suffered 100% loss of earning capacity. There is nothing on record to show that the qualified medical practitioner had opined that there was a permanent and complete loss of use of his right leg or that he had become totally unfit to work as a driver. In that situation, the High Court was not correct in determining the loss of income at 100%. It is, therefore, held that the extent of disability should have been determined at 15% and not 100%. (Oriental Insurance Company Ltd. v. Mohd. Nasir and Another; (2009) 2 SCC (Cri) 987)

* S. 168 – Whether compromise of claim case which was only signed by counsel of parties but not by parties could not be accepted by the Court.

After the amendment of Order XXIII, Rule 3 of the Code of Civil Procedure, 1908 by Act No. 104 of 1976 the Court was under duty to verify whether the compromise was in writing and was signed by the parties. In the present case, it is admitted that the compromise was not signed by the parties. It was only signed by the counsel of the parties. The compromise as such could not be accepted by the Court even if it was entered into the proceedings in lok adalat. (Smt. Urmila Devi & Ors. v. Motor Vehicle Claim Tribunal & Ors.; 2009 (4) ALJ 602)

* S. 168, Sch. II – Workmen’s Compensation Act, S. 4, Sch I – Compensation for permanent disability – Compensation payable is directly relatable to extent of physical disability and loss of earning capacity depends on extent of physical disability.

Both the statutes provide for the mode and manner in which the percentage of loss of earning capacity is required to be calculated. They provide that the amount of compensation in cases of permanent disability would be directly relatable to the percentage of physical disability suffered by the injured. The statutes provide for determination of the extent of physical disability suffered by a qualified medical practitioner so as to enable him to assess the loss of earning capacity. The Note appended to the Second Schedule of the 1988 Act raises a legal fiction, stating that ‘injuries deemed to result in Permanent Total Disablement/Permanent Partial Disablement and percentage of loss of earning capacity shall be as per Schedule I under the Workmen’s Compensation Act, 1923’. Permanent disability, therefore, for certain purposes have been corelated with functional disability. What, therefore, is relevant is to find out the nature of injuries and as to whether the same falls within the purview of Part I or Part II thereof. Whereas Part I specifies the injuries which would deem to result in permanent total disablement, Part II specifies injuries which would be deemed to result in permanent partial disablement. The distinction between the ‘permanent total disablement’ and ‘permanent partial disablement’ is that whereas in the former it is 100% disablement, in the latter it is only the disablement to the extent specified in the Schedule. Similar terms have been used in Clauses (a) and (b) of paragraph 5 of the Second Schedule of the Motor Vehicles Act. It, by reference, incorporates the provisions of the First Schedule of the 1923 Act. Indisputably, therefore, the Note appended thereto would not only be applicable to the cases falling under the 1923 Act but apply to the cases which fall under the 1988 Act as well. (Oriental Insurance Co. Ltd. v. Mohd. Nasir & Anr.; 2009(5) ALJ 253)

* S. 171 – Interest on amount of compensation has to be awarded from date of filing of claim petition.

The genetics of the interest may be traced from the Motor Vehicles Act, 1964 (sic). Erstwhile Section 110-CC of that act provides for awarding of interest where any claim was allowed, prior to that there was no statutory provision for awarding interest. The object of the interest is that claimants have been deprived of the compensation amount would have been paid forthwith they could have deposited in the bank and could have secured interest or could have utilized it much more usefully. The amount of compensation, in fact, became due on the date when the accident took place but Section 171 of the Motor Vehicles Act, 1988 provides that the interest cannot be awarded earlier than the date of claim made. The said Section runs as under:-

“171. Award of interest where any claim is allowed.- Where any Claims Tribunal allows a claim for compensation made under this Act, such Tribunal may direct that in addition to the amount of compensation simple interest shall also be paid as such rate and from such date not earlier than the date of making the claim as it may specify in this behalf.”

In the case of Union of India v. P.S. Mahal; AIR 1976; J & K 80, it was held that the interest should be payable from the date of the presentation of the claim before the Tribunal, interest has normally to be awarded from the date of making the claim unless there are good reasons for making a deviation, as per the ratio laid down in Sonoo Keki v. Bishwanath Singh; 1987 ACJ 458-460 = 1987 All LJ 206. Thus now it is well settled position that the interest cannot be awarded from the date of accident but it can be awarded from the date of making the claim. The liability to pay interest is an independent liability and excluded from the liability to pay compensation. Payment of interest is allowable in view of Section 171 of the Act, if the Tribunal in its discretion so directs. Section 171 of the Motor Vehicles Act, 1988 subsequently empowers the Tribunal to award interest at such rate as it may specify in that behalf in the award, it cannot be said that Section 34 of the Code of Civil Procedure would govern the award. Section 171 gives discretion to the Tribunal to award reasonable amount of interest after taking into consideration the facts and circumstances of each case.

In the light of facts and circumstances of the case, the court is of the view that the interest will have to be awarded from the date of filing of the claim petition before the Tribunal. Hence, the impugned order passed by the Tribunal is modified accordingly. (Durga Pd. Singh & Anr. v. Bhola Singh & Ors.; 2009(4) ALJ 307)

* S. 171 – Interest – Award of interest from date of filing of claim petition – when permissible.

In Bijoy Kumar Dugar v. Bidyadhar Dutta and Others; AIR 2006 SC 1255 wherein the Hon’ble Supreme Court held that the claimant shall be entitled for the payment of interest from the date of filing of the Claim Petition. The contention of the insurance company was rejected by their Lordships of Hon’ble Supreme Court for payment of interest from the date of filing of the written statement. (New India Assurance Co. Ltd. v. Indrapal Dixit & Ors.; 2009 (4) ALJ 209)

National Security Act

* S. 3 – Preventive Detention – Order of detention passed after gap of four months – Validity of

The impugned detention order, after a gap of peaceful four months, is based on stale ground. There was no live link existing on the date on which detention order was passed, which link had snapped and there was no proximity in the prejudicial activity and passing of the detention order and therefore to resort to such stringent measure, by respondent No. 2, was not a desirable necessity. This, in the opinion of the Court, makes further detention of the petitioner illegal. (Anjani Kumar Srivastava v. State of U.P. & Ors.; 2009(5) ALJ 22)

* S. 3 – Preventive detention – Distinction between law and order, public order and security of State – Enumerated.

The distinction between the three concepts, namely, law and order, public order and the security of the State may be appreciated by three imaginary concentric. Circles, the outer-most circle representing law and order which is regarded as least serious next inner circle representing public order which is regarded as more serious than law and order, and the innermost circle representing the security of State which is regarded as the most serious. The nature or quality of the act is not material for deciding whether the act affects law and order or it affects public order. What is relevant, is the potentiality of the act, that is, the degree and extent of the impact and effect of the act upon the society. An act by itself is not determinant of its own gravity. In its nature or quality it may not differ from other similar acts, but in its potentiality, that is, in its impact on society, it may be very different. Acts similar in nature, but committed in different contexts and circumstances, might have different potentiality. Such similar acts might cause different reactions depending on the different contexts and circumstances in which such acts are committed. An act committed in a particular context or circumstance may affect only law and order but the same act when committed in a different context or circumstance may affect public order. What is relevant is not the number of acts, but the extent of reach of the act upon society and its impact. Public order is the even tempo of the life of the community taking the country as a whole or even a specified locality. Public order is said to have been affected if the even tempo of life of the community is affected. In case the current of life of the community, i.e. the normal and orderly life of the community is affected then the public order is said to have been affected. (Rajiv Mishra v. State of U.P. & Ors.; 2009 Cri.L.J. 2619)

* S. 3 – Order of Preventive Detention – Validity of – Order can be validly passed even if detenue is already in custody.

Detention order can be validly passed even if a person is already in custody. However, the following conditions must be fulfilled in such a case:

1.                  The authority passing the detention order is aware of the fact that such person is actually in custody.

2.                  the authority has reason to believe on the basis of reliable material placed before him:

(a)     that there is a real possibility of such person being released on bail, and

(b)     that on being so released such person would in all probability indulge in prejudicial activities.

3.                  It is felt essential by the authority to detain such person to prevent such person from engaging in such activities.

Once the above conditions are satisfied, the detention order cannot be struck down.

It is thus, evident that all the conditions required for passing the detention order in respect of a person who is already in custody, were satisfied in the present case. (Rajiv Mishra v. State of U.P. & Ors.; 2009 Cri.L.J. 2619)

* S. 8 – If representation of detenu against order of detention had not been decided – Effect of

The Detaining Authority has not considered detenu’s representation at all vide annexure-3. In the said representation detenu has specifically pleaded that the detention order has been passed by misusing the power and is violative of Articles 14 and 21 of the Constitution of India and the same has been passed without any application of mind in a mechanical manner. It was further mentioned that the detention order was passed after an inordinate delay without any valid reason. It was also mentioned that the detenu was a handicapped person and was unable to move freely and while inside the jail he had suffered a heart stroke for which he was admitted in the hospital as well. There are other averments made in the said representation including averments that the detenu petitioner was implicated falsely in the crime. It is clear from the counter affidavit filed by the respondent No. 2 Detaining Authority, that she had not considered and decided the detenu’s representation at all and all these aspects of the matter remained unconsidered and this in the opinion of the Court makes further detention invalid. Further, in the counter affidavit of the District Magistrate, it is no where mentioned that she had considered the representation filed by the detenu. The law on this aspect has already been crystallized and now there cannot be two opinions about this that failure to decide the representation by the detenu makes the detention order indefensible and invalid. (Anjani Kumar Srivastava v. State of U.P. & Ors.; 2009(5) ALJ 22)

Natural Justice

* Principle of – If revenue entries are to be expunged, then notice must be given to affected person.

It is well established in law that if a person is going to be effected by any order of judicial authority or by administrative authority, effected person is entitled for notice and opportunity. Admittedly, petitioner has not been afforded any opportunity, which is apparent from the order passed by respondent. (Lal Babu v. Addl. District Magistrate (F & R)/D.D.C. & Others; 2009(107) RD 750)

NDPS Act

* S. 2(vii-a), 2 (XXIIIA), 21 (as amended by amendment Act No. 9 of 2001) – Effect of amending Act 2001, regarding conviction and sentence for possession of smack – Amending Act cannot be applied with retrospective effect.

It is now beyond any doubt of dispute that the quantum of punishment to be inflicted on an accused upon recording a judgment of conviction would be as per the law, which was prevailing at the relevant time.

As on the date of commission of the offence and/or the date of conviction, there was no distinction between a small quantity and a commercial quantity, question of infliction of a lesser sentence by reason of the provisions of the Amending Act, in the opinion considered by the court, would not arise,

It is also a well-settled principle of law that a substantive provision unless specifically provided for or otherwise intended by the Parliament should be held to have a prospective operation. One of the facets of Rule of Law is also that all statutes should be presumed to have a prospective operation only.

The Court is of the opinion that the Amending Act cannot be said to have any retrospective effect. (Jawahar Singh alias Bhagat Ji v. State of GNCT of Delhi; 2009 Cri.L.J. 2860)

* S. 50 – Applicability of.

So far as the alleged non-compliance with the requirements of Section 50 is concerned, the Court in several cases held that the provision has no application when the search is not of a person. In the instant case, the seizure was not from the person of accused, but from inside the house. That being so, Section 50 of the Act had no application to the facts of the case. (State of Rajasthan v. Manoj Sharma & Another; (2009) 2 SCC (Cri) 591)

Practice and Procedure

* Discretionary jurisdiction must be exercised judiciously and not arbitrarily.

The Civil Courts in the matter of enforcement of an agreement to sell exercise a discretionary jurisdiction. Discretionary jurisdiction albeit must be exercised judiciously and not arbitrarily or capriciously. A plaintiff is expected to approach the Court with clean hands. His conduct plays an important role in the matter of exercise of discretionary jurisdiction by a Court of law. In Mohammadia Cooperative Building Society Limited v. Lakshmi Srinivasa Cooperative Building Society Limited and Others; 2008(7) SCC 310, the Court held:

“Grant of a decree for specific performance of contract is a discretionary relief. There cannot be any doubt whatsoever that the discretion has to be exercised judiciously and not arbitrarily. But for the said purpose, the conduct of the plaintiff plays an important role. The Courts ordinarily would not grant any relief in favour of the person who approaches the Court with a pair of dirty hands.”

In Ms. Sanjana M. Wig v. Hindustan Petroleum Corpn. Ltd.; JT 2005(8) SC 334, in regard to exercise of the discretionary jurisdiction, the Court held that the same depends upon the facts and circumstances of each case where for no hard and fast rule can be laid down. (G. Jayashree and Others v. Bhagwandas S. Patel and Others; 2009(108) RD 29)

* Res-judicata – Principles of res-judicata is not applicable in Criminal Proceedings.

The principle of res-judicata has no application in criminal proceedings. The principles of res-judicata as enumerated in Section 11 of the Code of Civil Procedure or the general principles thereof will have no application in a case of this nature. (Devendra & Others v. State of Uttar Pradesh & Another, (2009) 7 SCC 495)

Prevention of Corruption Act

* Ss. 7 & 13(1)(d) r/w S. 13(2) – Essential ingredients of offences Re-enumerated.

The essential ingredients of Section 7 are:

(i)         That the person accepting the gratification should be a public servant;

(ii)        That he should accept the gratification for himself and the gratification should be as a motive or reward for doing or forbearing to do any official act or for showing or forbearing to show, in the exercise of his official function, favour or disfavour to any person.

Insofar as Section 13(1) (d) of the Act is concerned, its essential ingredients are:

(i)         That he should have been a public servant;

(ii)        That he should have used corrupt or illegal means or otherwise abused his position as such public servant, and

(iii)       That he should have obtained a valuable thing or pecuniary advantage for himself or for any other person.

The primary requisite of an offence under Section 13(1)(d) of the Act is proof of a demand or request of a valuable thing or pecuniary advantage from the public servant. In the absence of proof of demand or request from the public servant for a valuable thing or pecuniary advantage, the offence under Section 13(1)(d) cannot be held to be established.

In the absence of examination of the complainant, there is no substantive evidence to prove the factum of demand. The High Court held that since the Special Judge made attempts to secure the presence of the complainant and those attempts failed because he was not available in India, there was justification for non-examination of the complainant. In the absence of semblance of explanation by the investigating officer for the non-examination of the complainant, it was not open to the courts below to find out their own reason for not tendering the complainant in evidence. It has, therefore, to be held that the best evidence to prove the demand was not made available before the court.

The prosecution has to prove the charge beyond reasonable doubt like any other criminal offence and the accused should be considered innocent till it is established otherwise by proper proof of demand and acceptance of the illegal gratification, the vital ingredient, necessary to be established to procure a conviction for the offences under consideration.

Section 20(3) is a “non obstante clause”. It provides that where the gratification is trivial and the court is of the opinion that no inference of corruption may fairly be drawn, it may decline to draw the presumption as referred to in Sections 20(1) and (2). The court is not bound to draw a presumption under Section 20 where the alleged gratification is too trivial.

In a case such as this an inference of corruption may not be fairly drawn as the alleged demand was of Rs. 25 only. The High Court was not justified in drawing the presumption under Section 20 and holding that the offence punishable under Section 7 of the Act was proved. Mere recovery of currency notes (Rs. 20 and Rs. 5) denomination, in the facts of the present case, by itself cannot be held to be proper or sufficient proof of the demand and acceptance of bribe. (A. Subair v. State of Kerala; (2009) 3 SCC (Cri) 85)

* S. 19(3) and (4) – Plea of improper sanction cannot be raised for first time in appeal.

In appeal against conviction the appellant cannot be allowed to raise the plea of invalid sanction for the first time in appeal nor High Court is empowered to consider the objection to the validity of sanction raised for the first time in appeal, especially when, the appellant who ought to have raised this plea before the trial Court did not raise any such objection at any stage of the proceedings before the trial Court. The appellant, therefore, cannot be allowed to agitate that the sanction was improper especially when, he has failed to show that improper sanction has resulted into failure of justice. (Satish Kumar v. CBI; 2009 Cri.L.J. 2716)

Prevention of Food Adulteration Act

* S. 7(10) – Taking of sample – Non-compliance of S. 10(7) by Food Inspector – Effect of

Section 10(7) of the Act provides that where the Food Inspector takes any action under clause (a) of sub-section (1), sub-section (2), sub-section (4) or sub-section 6, he shall call one or more persons to be present at the time when such action is taken and take his or their signatures. This provision seems to be mandatory in nature. What is contemplated by section 10(7) of the said Act is that the Food Inspector while taking action for taking sample of any food must call one or more persons to be present at that time. If the Food Inspector makes attempt to call one or more persons at the time of taking sample and the persons so called by him shows their unwillingness to be witnesses, the Food Inspector cannot be blamed in such situation and it will be deemed that the Food Inspector has made sufficient compliance of section 10(7) of the Act. But where the Food Inspector does not make any such attempt, it would amount to violation of the mandatory provisions of section 10(7) of the Act. Section 10(7) of the Act seems to have significance due to the reason that the proceedings done by the Food Inspector may get authenticity during trial and the prosecution version may be believed. In absence of due compliance of the provisions of section 10(7) of the Act a valid conviction cannot be recorded against the accused, especially when the accused denies the factum of taking of sample by the Food Inspector.

In view of the peculiar situation of the case, the order of acquittal based on non-compliance of section 10(7) of the Act cannot be upset on the lines suggested by the A.G.A. (Nagar Swasthya Adhikari, Nagar Mahapalika, Agra v. Phooli Singh & Anr.; 2009(5) ALJ 66)

Probation of Offenders Act

* Ss. 4 & 6 – Applicability of

It was enacted to provide for the release of offenders on probation or after due admonition and for matters connected therewith. Section 4 of the Act empowers the Court to release a person on probation of good conduct, subject to the conditions that the offence is not punishable with death or imprisonment for life. Only in the event, the provisions of the said Act are applicable, Section 6 of the Act can be taken recourse to.

The appellant was charged with the commission of an offence under Section 302 of the Penal Code. He has been found guilty under Section 304 Part I thereof which provides for imprisonment for life or imprisonment of either description of a term which may extend to imprisonment for life. In this view of the matter, the provisions of the Act are not applicable. (Bala Baine Linga Raju v. State of Andhra Pradesh; (2009) 3 SCC (Cri) 13)

Registration Act

* S. 17(b) – Scope of – A deed of cancellation of sale deed falls within purview – Compulsorily registrable.

Section 17 of the Act deals with documents of which registration is compulsory and section 18 of the Act deals with the documents of which registration is optional. Section 17(b) is relevant for this case, which reads as follows:

“Section 17(b): other non-testamentary instruments which purport or operate to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards, to or in immovable property.”

A plain reading of the above provision would disclose that all non-testamentary instruments declaring a right or title over immovable properties worth Rs. 100/- and upwards shall be registered. A deed of cancellation of a sale falls within the purview of such an instrument declaring right and title for an immovable property. If any such document cancelling the sale is presented for registration, since the same is compulsorily registrable under section 17, the Registering officer is obliged to register the same, provided the execution of the said document is validly made by mutual consent of the parties and the same is not illegal or void. To constitute a valid execution, it should be executed by all parties to the earlier sale. Unless there is valid execution by competent persons, the Registering Officer has to necessarily refuse to register the document. Thus, in a situation where the document is either void or illegal or there is no valid execution, the registering Officer is bound to refuse to register the same. Dehors such a position, if the Registering Officer proceeds to register the said document, then the said registration would be without jurisdiction and not valid. (G.D. Subramaniam v. Sub-registrar, Office of Konur Sub-registrar, Chennai & Others; 2009(107) RD 476)

* S. 17(1)(d) – Rent deed – Rent deed for 11 months is not liable to be registered – Order impounding it liable to be set aside.

A bare perusal of the rent deed shows that the rent deed was for a period of 11 months.

Under the provisions of Section 17(1)(d) such an instrument is not liable to be registered. Learned Counsel for the petitioner has relied on a decision of the Hon’ble Apex Court in the case of Satish Kumar v. Zarif Ahmed and Others; 1997 (30) ALR 189 (SC).

In view of the above dictum as well as in view of the provisions of section 17(1)(d) of the Registration Act, 1908, the contention raised by the petitioner has substance. The impugned order dated 29.4.2000 is set aside. (Subhash Chand v. State of U.P. through its Collector, Bulandshahar & Another; 2009(107) RD 468)

* S. 32-A – Scope of – A mandatory provision.

Before the introduction of section 32-A of the Indian Registration Act, there were complaints of impersonations. That would have been one of the reasons why the parliament, in fitness of things, thought it fit to amend the Indian Registration Act so as to introduce section 32-A which provides that all such deeds shall be signed by the seller as well as the purchaser and the same shall also bear their finger prints and photographs.

This is undoubtedly a mandatory provision. Unless the requirements of section 32-A are complied with, the registering officer shall refuse to register the document. The proviso added to section 32-A of the act does not specifically speak of a sale and instead, it speaks of any document relating to transfer of ownership of immovable property. Thus, a document nullifying an earlier sale of an immovable property would also fall within the scope of proviso to section 32-A of the Act.

If a deed of cancellation, unilaterally executed by one party without the signature of the other party and without his photograph and finger prints, is presented for registration, for non-compliance of section 32-A of the Act, the Registering Officer should refuse to register the document. (G.D. Subramaniam v. Sub-registrar, Office of Konur Sub-registrar, Chennai & Others; 2009(107) RD 476)

Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act

* S. 3(1)(x) – Offence under Act – Significance of place.

Acts amounting to insult or humiliation to members of Scheduled Castes and Scheduled Tribes should be visible and audible to public, otherwise it would not amount to offence – Alleged incident of insult or intimidation took place inside house of applicant and not in the public place – Not an offence. (Uday Singh Ram Singh Pawar v. State of Maharashtra & Anr.; 2009 Cri.L.J. (NOC) 783 (Bom)

Service Law

* U.P. Recruitment of Dependents of Govt. Servants Dying in Harness Rules, 1974 – Rule 2(c) – Hindu Adoptions and Maintenance Act, S. 12 – Compassionate appointment – Adopted son can claim all benefits like real son of deceased including compassionate appointment U/R. 2(c).

With effect from the date of adoption, the adopted child shall be deemed to be the child of his or her adoptive father or mother for all purposes and would be engrafted in the family of his/her adoptive mother and father and from such date all the ties in the family of his or her birth shall be deemed to be severed and replaced by these created by adoption the adopted child gets all the rights, privilege and obligations of child in the adoptive family, therefore, there remains no difference between real child and adopted child and if the adoption is registered under any law for time being in force. It shall be presumed that adoption has been done in accordance with the provisions of law unless and until it is disproved.

Thus the adopted son shall be included within meaning of son, defined as member of family of deceased government servant under Dying in Harness Rules, 1974 and he can claim all the benefits like real son of the deceased including compassionate appointment under aforesaid Rule. (Shiv Prasad v. State of U.P. & Ors.; 2009(5) ALJ 98)

Specific Relief Act

* Specific Performance – Land agreed to be sold prior to consolidation – What would be the effect of plot number changed with excess of an area in consolidation proceeding.

The change of number did not change the physical identity of the land. The boundaries remained the same except to the extent of 0.006 hectare. The excess area of 0.006 hectare upon change of number and upon allotment was not agreed to be sold or purchased. Hence the area of 0.006 hectare of plot No. 281 is not subject-matter of the agreement of sale and no decree has been passed regarding that area. Since an agreement of sale does not create any ‘interest’ in land and it was not relating to the area 0.006 hectare, hence there is no issue involved in this case regarding the said area of 0.006 hectare.  (Rama Shanker v. Raja Ram; 2009(107) RD 401)

* Specific Performance – Suit for specific performance would be maintainable if relationship of vender and vendee continues.

            Relationship of vendor and vendee between defendant No. 1 and the plaintiff, therefore, continued, if that be so, the suit for specific performance was maintainable. (Hamid Khan v. Ashabi and Others; 2009(107) RD 739)

Terrorist and Disruptive Activities (Prevention) Act

* S. 19(1) – Appeal to Supreme Court – Scope of

An appeal has been filed under Section 19(1) of the Terrorist and Disruptive Activities (Prevention) Act, 1987 (hereinafter referred to as “TADA”) impugning the judgment dated 11.7.2007 passed by the learned Designated Court, Assam, Guwahati in Sessions Case No. 68 of 2001 whereby the appellant has been convicted by the learned Judge of the Designated Court under Section 3(2)(i) of TADA and was sentenced to undergo imprisonment for life and to pay a fine of Rs. 2000 in default further imprisonment for six months. On the benefit of doubt being extended, the other accused, namely, Premodhar Gogoi was acquitted.

Notwithstanding anything contained in the Code, an appeal shall lie as a matter of right from any judgment, sentence or order, not being an interlocutory order, of a Designated Court to the Supreme Court both on facts and on law.

This appeal has been filed before the Court under Section 19(1) of TADA which provides for an appeal both on facts and on law and the Court being the first appellate court is entitled to look into the evidence on record. (Ganesh Gogoi v. State of Assam; (2009) 7 SCC 404)

U.P. Control of Goondas Act

* S. 3(1) – Notice U/s. 3 – Requirement for valid notice.

Externment of Goonda – Notice under S. 3 – Validity – Crime numbers and sections etc., with which accused was charge-sheeted, were mentioned in notice but assertion of broad particulars which were required to be mentioned with regard to each of cases, not mentioned in notice – Notice not valid. (Raj Kumar Dubey v. State of U.P. & Ors.; 2009 Cri.L.J. (NOC) 820 All)

U.P. Consolidation of Holdings Act

* S. 11-C – Scope of

From the allegations in the writ petition, it is quite clear that since Zamindari Abolition, the land in dispute was mentioned as Nayee Parti hence is was a Gaon Sabha property. The Consolidation Officer gifted the Gaon Sabha property to the petitioner without even issuing notice to Gaon Sabha or Government Counsel. No record has been filed showing that at any point of time land in dispute was entered in the name of the petitioner. The order dated 2.5.2001 alleged to be a forged order by the petitioner has also not been annexed. Under section 11-C of UPCH, Act, consolidation authorities are required to protect State and Gaon Sabha property but the Consolidation Officer has done exactly contrary. Annexure-5 is copy of CH Form 23, which only contains the recital that by virtue of order dated 2.5.2001 passed in Case No. 484, the land allotted for Panchayat Bhawan was changed. It is quite possible that earlier some other Gaon Sabha property had been earmarked for the said purpose. If it was so then petitioner could have absolutely no concern therewith. The prayer in this writ petition is that SDO and Police authorities who are in collusion with the husband of the Pradhan should be restrained from interfering in peaceful possession of the petitioner over the land in dispute. (Mohan & another v. District Magistrate/Collector, Ghazipur & Others; 2009(108) RD 20)

* S. 42-A – Scope of

Under the aforesaid section only clerical or arithmetical errors apparent on the face of record may be corrected. This provision is equivalent to section 152, CPC. However, Consolidation Authorities are very liberally using this section for passing any type of order without properly appreciating its very very limited scope. Power under this section shall rarely be invoked and with great caution.(Mohan & another v. District Magistrate/Collector, Ghazipur & Others; 2009(108) RD 20)

U.P. Imposition of Ceiling and Land Holdings Act

* Interim Relief – Grant of refusal of – Principles to be taken into consideration – Highlighted.

For the purpose of consideration of grant of interim relief, the settled principles of prima facie case, balance of convenience and irreparable injury has to be kept in mind before passing an order either refusing or granting an interim order. The purpose of an interim order is to preserve the state of affairs so as to avoid any prejudice to the parties during the pendency of the litigation. The balance of convenience and the likelihood of injury has to be assessed. (Mahmood Rais & Others v. State of U.P. & Others; 2009(107) RD 449)

U.P. Industrial Disputes Act

* S. 6-C – Award of labour court does not cease to be effective after expiry of one year.

The provision of Section 6-C of the Act provides a statutory period on the life of an award. After the expiry of that period, the award does not cease to be effective and in fact, continues to remain binding on the parties. Even if the award has ceased to be in operation, it will continue to have its effect as a contract between the parties that has been made by an industrial adjudication in place of the old contract. Thus even though, the period of operation of the award elapses, the obligation flowing from the award continues to govern the relations between the parties till it is altered by another contract. The obligations created by an award can only be altered by a fresh adjudication or by a fresh contract and till such time as the aforesaid two happenings occur, the award continues to remain binding upon the parties in spite of the fact that the award becomes unenforceable after the expiry of one year. (U.P. State Bridge Corpn. Ltd. v. Prescribed Authority, Labour Court, Varanasi & Ors.; 2009 (4) ALJ 33)

U.P. Land Revenue Act

* S. 173 – Nature of powers of Commissioner regarding confirmation of auction sale – Commissioner would have no option but to pass order confirming sale.

There is thus no manner of doubt that an order passed under Section 173 is judicial in nature as well as the proceedings culminating in the passing of that order are judicial in nature. The Commissioner, therefore, having, in the course of these proceedings, passed a judicial order rejecting Section 173 Application of Nakul Singh, by virtue of the obligation cast upon him in Section 174; he had no option but to confirm the sale. The court is saying so because the obligation cast upon the Commissioner, as contained in Section 174, is mandatory. The word “shall” used in Section 174 has to be construed as mandatory and binding in nature. Section 174 clearly provides that if an Application under Section 173 has in fact been made and if it is rejected, the Commissioner has no option but to pass an order confirming the sale.  (VIR Buildcon Pvt. Ltd. and etc. v. The Commissioner  & Ors. etc.; 2009(5) ALJ 232)

U.P. Panchayat Raj Act

* Ss. 15, 17 – Functions of Panchayats – Determination of.

            Language of Section 15 of the U.P. Panchayat Raj Act read with the interpretation placed upon Article 243-G by the Hon’ble Supreme Court of India in the case of U.P. Gram Panchayat Adhikari Sangh, it logically follows that it is open to the State Government to entrust the Gram Panchayats for performance of functions and duties qua roads, culverts, bridges, ferries, water-ways and other means of communication, subject to such conditions, as the State, Government may deem fit. Such power of the State Government to impose conditions or to regulate the performance of the functions and duties relating to construction of roads, culverts, bridges etc. is left untouched. In the opinion of the Court it is always open to the State Government to enforce a scheme, the implementation whereof may not be ensured through the Gram Panchayats, inasmuch as the power to impose condition for implementing the scheme necessary includes the power to completely exclude the Gram Panchayats from execution of the scheme by the State Government as the situation may demand. (Smt. Vidya Devi & Ors. etc. v. State of U.P. & Ors.; 209(4) ALJ 68)

U.P. Provincial Small Cause Courts Act

* Sch. 2, Art. 4 (as amended in U.P.) – Suit for eviction – Small Cause Courts has jurisdiction only to pass eviction decree but also to execute the same.

            In Shakti Dhar v. D.D. Upadhyay; 1986 ALR 65, has held that the Court of Small Causes has power to execute the decree for ejectment.

After amendment in the Provincial Small Cause Courts Act, not only a decree for ejectment can be passed by the court of small causes but such a decree can be executed by it.

A revision, under section 25 of the Provincial Small Cause Courts Act read with Order 21, Rule 103 of the CPC, rather than appeal under section 96 read with Order 21, Rule 103 of the CPC is maintainable.  (Wahid v. Mohd. Anwar; 2009(4) ALJ 225)

* S. 25 – Revision against order passed in execution of ejectment decree on objection filed by third party is maintainable.

Section 25 of the PSCC Act provides for further proceeding against a decree and the orders passed by the court of small causes. It provides for a revision against the same. While discussing the 2nd point. I have already held that the impugned order is the order passed by the court of small causes; this order is to be treated as a decree by the court of small causes. If this is so, then appeal cannot be filed under section 96 read with Order 21 Rule 103 of CPC. Only a revision can be filed under section 25 of the PSCC Act read with Order 21, Rule 103 of the CPC. (Wahid v. Mohd. Anwar; 2009(4) ALJ 225)

U.P. Recruitment of Dependants of Govt. Servants Dying in Harness Rules

* R. 5 – Compassionate appointment cannot be claimed by defendant of part time Tube Well Operator.

            The appellant-State seeks to challenge the order passed by the learned single Judge whereby the learned single Judge has allowed the writ petition filed by the respondent herein by an order dated 9.11.2005. The respondent had sought employment on compassionate ground on the footing that his father was in a regular employment of the State.

The State has challenged this judgment and order and has relied upon a Division Bench judgment in the case of State of U.P. and Another v. Smt. Phoola Devi passed in Special Appeal No. 117 of 2000 decided on 14.7.2000.

Division Bench in Special Appeal No. 117 of 2000 examined the relevant rules and also noted that part time Tube Well Operators were to be called as Nalkoop Sahayaks in pursuance of Government Order issued on 20.2.1992. The respondent is calling himself as an Assistant Tube Well Operator, which is a translation of the term Nalkoop Sahayak. The relevant Government Order in terms says that all these Nalkoop Sahayaks are supposed to work for part time and held that the writ petitioner could not claim compassionate appointment on the ground that she was widow of a part time Tube Well Operator who died in harness.

On relying the judgment passed in case of State of U.P. v. Smt. Poonam Devi has held that compassionate appointment cannot be claimed by dependant of part time Tube Well Operator. (State of U.P. & Anr. v. Shailendra Kumar Singh; 2009 (4) ALJ 27)

U.P. Stamp Rules, 1942

* Rule 3(1) – Object of – Stamp issued by U.P. State alone can be used in U.P.

The word ‘Government’ used in Rule 3(i) has not been defined under the U.P. Stamp Rules. However since Rule 3 is part of the U.P. Stamp Rules framed by the State Government it would refer to the State Government of U.P. and therefore, the stamps issued by the State Government alone are to be used on the documents executed in Uttar Pradesh for indicating payment of stamp duty, as would also follow from examination of the various provisions of the Stamp Act and the U.P. Stamp Rules. (Zonal Manager, Life Insurance Corporation of India, Kanpur & Others v. Dy. Inspector General Registration/Dy. Commissioner Stamps, Kanpur Division, Kanpur & Others; 2009(108) RD 97)

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

* S. 16 – Order of vacancy passed for whole house would be improper while application had been filed for only vacancy of first floor.

In this case, the Rent Control Authority i.e. Additional District Magistrate, Lucknow has observed that it is clear that 1st floor is occupied by an Advocate and the ground floor is lying vacant. No person of the landlady is living in the house in question. It has been let out to one after other person from time to time without any allotment order from the Court. On the basis of the Inspector’s report and after perusing the objections filed on behalf of landlady, the vacancy of the ground floor as well as first floor portions were ordered to be notified by DM, Lucknow.

In the light of the aforesaid observation, he allotted the ground floor portion of the house in question to Shri Rama Shanker Singh, petitioner No. 1. the report of the Inspector indicates that he submitted the report for proceeding of allotment only for first floor of the house as was deemed vacant but the  Additional District Magistrate exceeded his jurisdiction and allotted the ground floor to petitioner No. 1. Simultaneously, he also allotted the first floor of the house to petitioner No. 2 being a Government servant.

Therefore, court is of the view that only first floor of the house in question was before the authority concerned for determination of vacancy and he committed error in passing the order of vacancy of the whole house. (Rama Shanker & Anr. v. Addl. District Judge-II, Lucknow & Ors.; 2009(5) LJ 116)

* S. 18 – Whether revision against order declaring vacancy in absence of party (landlord) would be maintainable.

The petitioner’s case is that the landlord was living in England but the notice does not indicate that it was sent to landlord in England. Thus, it is established that by the Rent Control Authority, Mr. Pran Nath Seth was accepted as the person covered under the definition of ‘landlord’ as provided under Section 3(j) of the Act.

Since except Mr. Pran Nath Seth, nobody was asked to participate in the proceeding of determination of vacancy, after passing the order in the proceeding definitely, he had right to challenge the same, therefore, he had rightly preferred the revision in his own capacity. Once the revision filed by him was maintainable, it does not make difference as to whether he was having authority on behalf of Smt. Asha Tandon to file the same or not. Therefore, the revision filed by him was well maintainable. (Rama Shanker & Anr. v. Addl. District Judge-II, Lucknow & Ors.; 2009(5) LJ 116)

* S. 21(1)(a) – Release of premises – Bonafide need – Determination of.

The Hon’ble Supreme Court in Shiv Sarup Gupta v. Dr. Mahesh Chand Gupta; (1999) 6 SCC 222 = AIR 1999 SC 2507, has held –

“the term bona fide or genuinely refers to a state of mind. Requirement is not mere desire. The degree of intensity contemplated by “requires” is much higher than in mere desire. The phrase “required bona fide” is suggestive of legislative intent that a mere desire which is the outcome of whim or fancy is not taken note of by the rent control legislation. A requirement in the sense of felt need which is an outcome of a sincere, honest desire, in contradistinction with a mere pretence or pretext to evict a tenant, on the part of the landlord claiming to occupy the premises for himself or for any member of the family would entitle him to seek ejectment of the tenant. Looked at from this angle, any setting of the facts and circumstances protruding the need of the landlord and its bona fides would be capable of successfully withstanding the test of objective determination by the Court. The judge of facts should place himself in the arm-chair of the landlord and then ask the question to himself-whether in the given facts substantiated by the landlord the need to occupy the premises can be said to be natural, real, sincere, and honest. If the answer be in the positive, the need is bona fide. The failure on the part of the landlord to substantiate the pleaded need, or, in a given case, positive material brought on record by the tenant enabling the Court drawing in inference that the reality was to the contrary and the landlord was merely attempting at finding out a pretence or pretext for getting rid of the tenant, would be enough to persuade the Court certainly to deny its judicial assistance to the landlord.

The Court further in Smt. Tara Devi v. District Judge & Others; 1979 ARC 382 has held on the basis of the Hon’ble Supreme Court decision rendered in Muttu Lal v. Radhey Lal; AIR 1974 SC 1596 as under:

“It is for the Court to determine the truth of the assertion and also whether it is bona fide. The test which has to be applied is an objective test and not a subjective one and merely because the landlord asserts that he wants the accommodation for his personal use would not be enough to establish that he requires it for his personal use”.

Both the Courts below have on meticulous evaluation of evidence found that requirement of the landlord is proved and comparative hardship also tilts in favour of land lord. Two courts below after considering the entire evidence available on record have given concurrent finding on the bona fide need of the landlord and comparative hardship. (Hari Om Verma v. Additional District & Sessions Judge, Lucknow & Ors.; 2009k (4) ALJ 216)

U.P.Z.A. & L.R. Act

* S. 126 – Settlement of fishery rights by auction – Ground for cancellation of bid.

In the present case, the authorities have cancelled the auction on the ground that the price bid was grossly inadequate and has directed that a fresh auction should be held.

Admittedly, the area of the pond is less than a hectare and a fisheries’ right for 10 years’ was required to be auctioned. Consequently, the bid given by the petitioner to the tune of Rs. 12,500.00 was grossly inadequate.

In view of the aforesaid, the impugned order cancelling the auction does not suffer from any error of law. In fact, the Supreme Court in the case of Ram and Shyam Company; AIR 1985 SC 1147, held that the Government was entitled to reject the highest bid if it found that the price offered was inadequate. The Supreme Court, further held, that after rejecting the offer, it was obligatory upon the Government to act fairly, and that at any rate, it should not act arbitrarily. (Bhrigu Nath Pandey v. State of Uttar Pradesh & Ors.; 2009 (4) ALJ 25)

* S. 171 – read with S. 172 – Applicability of.

If recorded tenure holder died during the life time of his grand father. Father was already dead. Grand father the only surviving person left. Grand father had right over the property of the deceased recorded tenure holder. (Lala Vishambhar v. Ishwar Singh & Another; 2009(107) RD 445)

* S. 172 – Successor U/s. 172 absconded and untraceable – Line of succession U/s. 171 would be open.

            Under Section 172 of the Act, succession in case of a woman holding an interest as a widow, mother, daughter, etc. is provided Smt. Rajni could inherit the property as mother of Sachin. But the record indicates that she has absconded and is untraceable. Once the successor under section 172 of the Act has absconded or surrendered her rights by absconding, the line of succession under section 171 would open since those mentioned therein are in the General Order of Succession. (Lala Vishambhar v. Ishwar Singh & Another; 2009(107) RD 445)

* S. 195 – Consolidation Officer could not cancel patta, he could only avoid the patta if it is void.

Petitioner was allotted patta of some Gaon Sabha land in the year 1963 under section 195 of U.P.Z.A. and L.R. Act. He applied for mutation. Meanwhile consolidation proceedings intervened. Accordingly, mutation matter was to be decided by Consolidation Officer. The matter was registered before C.O., Gyanpur, District Varanasi in the form of Case No. 9360. Sri Sita Ram v. Gram Samaj. The C.O. held that on patta signatures and thumb impressions of allottee-petitioner were not there; that prior permission of Sub-Divisional Officer or Tehsildar concerned was not sought; that information of executing the patta was not given to members of Gram Samaj, that separate notice to each member should have been given for patta allotment which was not done.

There is no requirement of law that on patta signatures or thumb impressions of allottee must also be there. As far as prior permission of SDO is concerned the provision was not there in the year 1963. It was added only in the year 1969.

C.O. could not cancel the patta. CO could only avoid the patta if it was void. However, neither there was any allegation nor there is any finding that patta is void ab-initio.  (Shri Nath (Dead) Through LRs v. Dy. Director of Consolidation, Varanasi & others; 2009(108) RD 62)

* S. 198(3) – Allotment of Gaon Sabha Land under above Act and Rules not to be made unless date of allotment is advertised in some daily newspaper having wide circulation in concerned area.

Under section 198(3) it is permissible to allot Gaon Sabha land to a deserving person to a maximum extent of 1.26 hectares or 3.125 acres of land. However, this is ‘maximum area which may be allotted. With the increase of population it is not at all necessary to allot so much area to one person. Smaller areas allotted to larger number of people will serve the public purpose in a better way.

Accordingly, it is directed that henceforth no allotment of gaon sabha land under U.P.Z.A. & L.R. Act and the Rules framed thereunder shall be made unless date of allotment is advertised in some such daily newspaper which has got wide circulation in the area in question (e.g. Dainik Jagran and Amar Ujala) atleast two weeks in advance. Through advertisement applications from deserving persons with sufficient details shall be invited and the available land shall be allotted to all the deserving applicants. The applications shall be entered in a register specifically maintained for the said purpose. The receipt of applications must be issued to the applicant and applications shall be preserved at least for seven years. This procedure shall be followed for making allotment of ceiling land also as under section 27(3) of U.P. Imposition of Ceiling on Land Holdings Act allotment is to be made in accordance with the order of preference and subject to the limits specified in section 198 of U.P.Z.A. & L.R. Act. (Raja Ram & Others v. Smt. Son Kali & Others; 2009(107) RD 796)

* S. 331(4) – Disposal of second appeal by Board of Revenue without formulating substantial question of law would be improper.

Sub-section (4) of Section 331 which speaks for cognizance of suits, etc. under this Act, is also reproduced as under:-

“331(4). A second appeal shall lie on any of the grounds specified in section 100 of the code of Civil Procedure, 1908 from the final order or decree, passed in an appeal under sub-section (3), to the authority, if any, mentioned against it in column 6 of the Schedule aforesaid”.

Sub-section (1) of Section 100 of CPC is also reproduced as under:-

“100(1). Second appeal – (1) Save as otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie to the High Court from every decree passed in appeal by any Court subordinate to the High Court, if the High Court is satisfied that the case involves a substantial question of law.”

Thus, provisions of sub-section (1) of Section 100 CPC Speaks that Court has show its satisfaction that the case involves substantial question of law. Therefore, in the light of the judgment of Hon’ble Supreme Court rendered in the case of M/s Wyawahare & Sons v. Madhukar Raghunath Bhave; AIR 2007 SC 3037, and after reading the judgment of the Board of Revenue. I am of the considered opinion that since the Board of Revenue did not formulate the substantial question of law and has failed to show its satisfaction on any of the substantial question of law, if any, involved therein, the judgment and order passed by the Board of Revenue is unsustainable. (Krishna Baldeo & Ors. v. State of U.P. & Ors.; 2009(4) ALJ 81)

Workmen’s Compensation Act

* Preamble and Ss. 3 & 4 – Nature of – It is beneficent legislation hence, it should begin literal construction giving effect to the legislative intent.

Both the 1923 Act and the 1988 Act are beneficent legislation insofar as they provide for payment of compensation to the workmen employed by the employers and/or by use of motor vehicle by the owner thereof and/or the insurer to the claimants suffering permanent disability. The amount of compensation is to be determined in terms of the provisions of the respective Acts. Whereas in terms of the 1923 Act, the Commissioner who is a quasi-judicial authority, is bound to apply the principles and the factors laid down in the Act for the purpose of determining the compensation. Section 168 of the 1988 Act enjoins the Tribunal to make an award determining the amount of compensation which appears to be just.

Both the Acts aim at providing for expeditious relief to the victims of accident. In these cases, the accidents took place by reason of use of motor vehicles. Both the statutes are beneficial ones for the workmen as also the third parties. The benefits thereof are available only to the persons specified under the Act besides under the contract of insurance. The statutes, therefore, deserve liberal construction. The legislative intent contained therein is required to be interpreted with a view to give effect thereto. (Oriental Insurance Co. Ltd. v. Mohd. Nasir & Another; (2009) 2 SCC (Cri) 987)

Words & Phrases

*  “Good Faith” and “Due Care” – Meaning of.

‘Good faith’ – nothing shall be deemed to be done in good faith which is not done with due care and attention.

The aforesaid definition shows that an act done with due care and attention satisfies the test of “good faith”. “Due care” means that sufficient care was taken so far as circumstances demanded and there was absence of negligence. In other words, the plaintiff has taken sufficient care which a reasonable man is expected to take in order to avoid any injury. (J. Kumar Dasan Nair & Another v. IRIC Sohan & Others; 2009(108) RD 22)

*  “Just Compensation” – Meaning of

Assessment of compensation though involving certain hypothetical considerations should nevertheless be objective. Further, the compensation awarded does not become “just compensation” merely because the Tribunal considers it to be just, “just compensation” is adequate compensation which is fair and equitable, on the facts and circumstances of the case, to make good the loss suffered as a result of the wrong, as far as money can do so, by applying the well-settled principles relating to award of compensation. It is not intended to be a bonanza, largesse or source of profit. (Sarla Verma (Smt.) & Others v. Delhi Transport Corporation & Another; (2009) 2 SCC (Cri) 1002)

* Landlord – Definition in U.P. Urban Buildings Regulations of Letting Rent and Eviction Act includes person to whom rent is payable and also agent of landlord.

Section 3(j) of the Act defines the term ‘landlord’ as a person to whom its rent is or if the building were let, would be payable and includes, except in clause (g), the agent or attorney, or such person. (Rama Shanker & Anr. v. Addl. District Judge-II, Lucknow & Ors.; 2009(5) ALJ 116)

*  “Market value” – What is

Market value is a changing concept. The Explanation to sub-rule (5) makes the position clear that (sic market) value would be such as would have fetched or would fetch if sold in the open market on the date of execution of the instrument of conveyance. Here, the property was offered for sale in the open market and bids were invited. That being so, there is no question of any intention to defraud the revenue or non-disclosure of the correct price. The factual scenario as indicated above goes to show that the properties were disposed of by the orders of BIFR and AAIFR and that too on the basis of value fixed by Assets Sales Committee. The view was expressed by the Assets Sales Committee which consisted of members such as representatives of IDBI, debenture-holders, Government of West Bengal and Special Director of BIFR. That being so, there is no possibility of any undervaluation and therefore, Section 47-A of the Act has no application. It is not correct as observed by the High Court that BIFR was only a mediator. (V.N. Devadoss v. Chief Revenue Control Officer-cum-Inspector & Others; (2009) 7 SCC 438)

*  “Negligence” – Meaning of.

Though the term “negligence” has not been defined in the Penal Code, it may be stated that negligence is the omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs would do, or doing something which a reasonable and prudent man would not do. (Mahadev Prasad Kaushik; (2009) 2 SCC (Cri) 834)

* “Property” – Meaning of

It cannot be held that the property for the purpose of Section 420 or 405 of the Penal Code would be non-corporeal property. It will have to be either movable or immovable property or the property which is transferable, consumable or capable of being spent and not one of the types of mark-sheet which is intangible, non-transferable or non-expendable. (Sunil Kumar S/o Gaya Prasad Mishra etc. v. State of Maharashtra; 2009 Cri.L.J. 2599 (Bom)

*  ‘Regular satisfactory service’

Once services are confirmed, an employee would be borne on the regular cadre. He thus being in the regular service, satisfactory completion of the stipulated period therein would entitle him to the benefits thereof. (Chief Engineer/Operation, Dakshini Haryana Bijli Vitran Nigam Limited and Another v. Mauj Khan and Others; (2009) 7 SCC 355)

*  “Secure” – Means to make safe – Discussed.

Webster defines “secures” to mean “to make certain”, “to put beyond hazard”, “To secure” is to make safe, to put beyond hazard of losing or of not receiving, as to secure a debt by a mortgage; it also means to get safely in possession, to obtain to acquire certainly, as to secure as inheritance or a price. (Smt. Rajni Swami v. Smt. Shakuntala Sharma; 2009(107) RD 442)