• Featured

    Whether directions/guidelines given in Damodar S. Prabhu Case are inapplicable in cases which are resolved/settled in Lok Adalats?

  • Featured

    Inadmissibility of document

  • Doctrine

    Doctrine of Proportionality

  • Question of Law

    What is adverse possession?

  • Thursday, 18 September 2014

    The Indian Evidence Act, 1872 - The Representation of the People Act, 1951 - Section 100(1)(b) read with Section 123(2)(ii) and (4) - What is the nature and manner of admission of electronic records?

    Anvar P.V. Vs. P.K. Basheer and others

    Posted at  Thursday, September 18, 2014  |  in  Evidence  |  Read More»

    The Indian Evidence Act, 1872 - The Representation of the People Act, 1951 - Section 100(1)(b) read with Section 123(2)(ii) and (4) - What is the nature and manner of admission of electronic records?

    Tuesday, 16 September 2014

    The Indian Penal Code, 1860 - Section 420 and 120B - The Prevention of Corruption Act, 1947 - Section 5(2) - The Code of Criminal Procedure, 1973 - Section 313 - Delay in lodging FIR - Criminal Conspiracy - Cheating.

    Edmund S Lyngdoh Vs. State of Meghalaya

    Posted at  Tuesday, September 16, 2014  |  in  Corruption  |  Read More»

    The Indian Penal Code, 1860 - Section 420 and 120B - The Prevention of Corruption Act, 1947 - Section 5(2) - The Code of Criminal Procedure, 1973 - Section 313 - Delay in lodging FIR - Criminal Conspiracy - Cheating.

    The Indian Penal Code, 1860 - Sections 302 r/w 149 - Behaviour of the witnesses - Scope of power of appellate court dealing with an appeal against acquittal - Unless there are substantial and compelling reasons, the order of acquittal is not required to be reversed in appeal.

    Dilawar Singh & Ors. Vs. State of Haryana

    Posted at  Tuesday, September 16, 2014  |  in  Murder  |  Read More»

    The Indian Penal Code, 1860 - Sections 302 r/w 149 - Behaviour of the witnesses - Scope of power of appellate court dealing with an appeal against acquittal - Unless there are substantial and compelling reasons, the order of acquittal is not required to be reversed in appeal.

    Monday, 15 September 2014

    IN THE SUPREME COURT OF INDIA 
    CIVIL APPELLATE JURISDICTION 
    CJI. (R.M. Lodha) (Jagdish Singh Khehar) (J. Chelameswar) (A.K. Sikri) and (Rohinton Fali Nariman) JJ.
    September 15, 2014
    CIVIL APPEAL NO.8750 OF2014
    (arising out of SLP (C) No.540 of 2009) COMMISSIONER OF INCOME TAX (CENTRAL)-I, NEW DELHI …..APPELLANT(S) 
    VERSUS
    VATIKA TOWNSHIP PRIVATE LIMITED |…..RESPONDENT(S) | 

    Commr.Of Income Tax-I,new Delhi Vs. Vatika Township P.Ltd.

    Posted at  Monday, September 15, 2014  |  in  Income Tax  |  Read More»

    IN THE SUPREME COURT OF INDIA 
    CIVIL APPELLATE JURISDICTION 
    CJI. (R.M. Lodha) (Jagdish Singh Khehar) (J. Chelameswar) (A.K. Sikri) and (Rohinton Fali Nariman) JJ.
    September 15, 2014
    CIVIL APPEAL NO.8750 OF2014
    (arising out of SLP (C) No.540 of 2009) COMMISSIONER OF INCOME TAX (CENTRAL)-I, NEW DELHI …..APPELLANT(S) 
    VERSUS
    VATIKA TOWNSHIP PRIVATE LIMITED |…..RESPONDENT(S) | 

    Wednesday, 10 September 2014

    The Negotiable Instruments Act, 1881 - Section 138 - The Legal Services Authorities Act, 1987 - Whether directions/guidelines given in Damodar S. Prabhu Case are inapplicable in cases which are resolved/settled in Lok Adalats? Held, In those matters where the case has to be decided/settled in the Lok Adalat, if the Court finds that it is a result of positive attitude of the parties, in such appropriate cases, the Court can always reduce the costs by imposing minimal costs or even waive the same. For that, it would be for the parties, particularly the accused person, to make out a plausible case for the waiver/reduction of costs and to convince the concerned Court about the same. This course of action would strike a balance between the two competing but equally important interests, namely, achieving the objectives delineated in Damodar S. Prabhu (supra) on the one hand and the public interest which is sought to be achieved by encouraging settlements/resolution of case through Lok Adalats.

    Madhya Pradesh State Legal Services Authority Vs. Prateek Jain & Anr.

    Posted at  Wednesday, September 10, 2014  |  in  Lok Adalat  |  Read More»

    The Negotiable Instruments Act, 1881 - Section 138 - The Legal Services Authorities Act, 1987 - Whether directions/guidelines given in Damodar S. Prabhu Case are inapplicable in cases which are resolved/settled in Lok Adalats? Held, In those matters where the case has to be decided/settled in the Lok Adalat, if the Court finds that it is a result of positive attitude of the parties, in such appropriate cases, the Court can always reduce the costs by imposing minimal costs or even waive the same. For that, it would be for the parties, particularly the accused person, to make out a plausible case for the waiver/reduction of costs and to convince the concerned Court about the same. This course of action would strike a balance between the two competing but equally important interests, namely, achieving the objectives delineated in Damodar S. Prabhu (supra) on the one hand and the public interest which is sought to be achieved by encouraging settlements/resolution of case through Lok Adalats.

    The Indian Penal Code, 1860 - Section 302 - Murder - Circumstantial Evidence - It is a case of blind murder. There are no eyewitnesses. Conviction is based on the circumstantial evidence. In such a case, complete chain of events has to be established pointing out the culpability of the accused person. The chain should be such that no other conclusion, except the guilt of the accused person, is discernible without any doubt.

    Sangili @ Sanganathan Vs. State of Tamil Nadu

    Posted at  Wednesday, September 10, 2014  |  in  Murder  |  Read More»

    The Indian Penal Code, 1860 - Section 302 - Murder - Circumstantial Evidence - It is a case of blind murder. There are no eyewitnesses. Conviction is based on the circumstantial evidence. In such a case, complete chain of events has to be established pointing out the culpability of the accused person. The chain should be such that no other conclusion, except the guilt of the accused person, is discernible without any doubt.

    The Land Acquisition Act, 1894 - The Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 - though there is lack of clarity on the issue whether compensation has been paid for majority of land holdings under acquisition or not, there is no dispute that physical possession of the lands belonging to the appellants under consideration in these appeals has not been taken by the State or any other authority on its behalf and more than five years have elapsed since the making of the award dated 30.11.2006 and 01.01.2014 when the 2013 Act came into force. Therefore, the conditions mentioned in Section 24(2) of the 2013 Act are satisfied for allowing the plea of the appellants that the land acquisition proceedings must be deemed to have lapsed in terms of Section 24(2) of the 2013 Act.

    Sree Balaji Nagar Residential Association Vs. State of Tamil Nadu & Ors.

    Posted at  Wednesday, September 10, 2014  |  in  Land Acquisition  |  Read More»

    The Land Acquisition Act, 1894 - The Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 - though there is lack of clarity on the issue whether compensation has been paid for majority of land holdings under acquisition or not, there is no dispute that physical possession of the lands belonging to the appellants under consideration in these appeals has not been taken by the State or any other authority on its behalf and more than five years have elapsed since the making of the award dated 30.11.2006 and 01.01.2014 when the 2013 Act came into force. Therefore, the conditions mentioned in Section 24(2) of the 2013 Act are satisfied for allowing the plea of the appellants that the land acquisition proceedings must be deemed to have lapsed in terms of Section 24(2) of the 2013 Act.

    Tort - Not only Constitutional Courts have to, in suitable cases, uphold claims arising out of loss of life or liberty on account of violation of statutory duties of public authorities, in private law remedies, just and fair claims of citizens against public bodies have to be upheld and compensation awarded in Tort. Where activity of a public body is hazardous, highest degree of care is expected and breach of such duty is actionable. This obligation is also referable to Article 21 - Court reiterate the need for a comprehensive legislation dealing with tortious liability of the State and its instrumentalities in such cases for certainty on the subject - Court requested the Law Commission to look into the matter and take such steps as may be found necessary.

    Vadodara Municipal Corporation Vs. Purshottam V. Murjani and Ors.

    Posted at  Wednesday, September 10, 2014  |  in  Tort  |  Read More»

    Tort - Not only Constitutional Courts have to, in suitable cases, uphold claims arising out of loss of life or liberty on account of violation of statutory duties of public authorities, in private law remedies, just and fair claims of citizens against public bodies have to be upheld and compensation awarded in Tort. Where activity of a public body is hazardous, highest degree of care is expected and breach of such duty is actionable. This obligation is also referable to Article 21 - Court reiterate the need for a comprehensive legislation dealing with tortious liability of the State and its instrumentalities in such cases for certainty on the subject - Court requested the Law Commission to look into the matter and take such steps as may be found necessary.

    The Arbitration and Conciliation Act, 1996 - Section 34 - Which Court will have the jurisdiction to entertain and decide an application under S.34 of the Arbitration Act?

    State of West Bengal & Ors. Vs. Associated Contractors

    Posted at  Wednesday, September 10, 2014  |  in  Arbitration  |  Read More»

    The Arbitration and Conciliation Act, 1996 - Section 34 - Which Court will have the jurisdiction to entertain and decide an application under S.34 of the Arbitration Act?

    Tuesday, 9 September 2014

    The Indian Penal Code, 1860 - Section 302 r/w 34 - the eye witnesses account of the concerned witnesses were all convincing and were corroborative in every minute aspect of the occurrence - their version was natural and there was nothing to suspect their version in narrating the occurrence - the defence version was rightly rejected by the trial Court as the same was wholly unreliable - Apart from eye witnesses account the recoveries of the weapons, the medical evidence and the FSL reports fully supporting the case of the prosecution - the judgment of the trial Court ought not to have been interfered by the High Court - therefore, allow this appeal and set aside the judgment of the High Court and restore the judgment of the trial Court along with the conviction and sentence imposed - accused shall, therefore, surrender forthwith and undergo the unexpired portion of the sentence imposed on them.

    State of Rajasthan Vs. Chandgi Ram & Ors.

    Posted at  Tuesday, September 09, 2014  |  in  Murder  |  Read More»

    The Indian Penal Code, 1860 - Section 302 r/w 34 - the eye witnesses account of the concerned witnesses were all convincing and were corroborative in every minute aspect of the occurrence - their version was natural and there was nothing to suspect their version in narrating the occurrence - the defence version was rightly rejected by the trial Court as the same was wholly unreliable - Apart from eye witnesses account the recoveries of the weapons, the medical evidence and the FSL reports fully supporting the case of the prosecution - the judgment of the trial Court ought not to have been interfered by the High Court - therefore, allow this appeal and set aside the judgment of the High Court and restore the judgment of the trial Court along with the conviction and sentence imposed - accused shall, therefore, surrender forthwith and undergo the unexpired portion of the sentence imposed on them.

    Monday, 8 September 2014

    The Specific Relief Act, 1963 - Section 16(c) r/w Explanation (ii) - Specific performance of contract cannot be enforced in favour of a person who fails to aver and prove that he has performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him, other than terms the performance of which he has been prevented or waived by the defendant. 

    Telikicherla Sesibhushan (Dead) by Lrs. Vs. Kalli Raja Rao (Dead) by Lrs. & Ors.

    Posted at  Monday, September 08, 2014  |  in  Specific Relief  |  Read More»

    The Specific Relief Act, 1963 - Section 16(c) r/w Explanation (ii) - Specific performance of contract cannot be enforced in favour of a person who fails to aver and prove that he has performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him, other than terms the performance of which he has been prevented or waived by the defendant. 

    The Indian Penal Code, 1860 - Section 420 - The Prize Chits and Money Circulation (Banning) Act, 1978 - Sections 4, 5 & 6 - No error of law in quashing the FIR after not only the parties settled their money dispute but also the other alleged sufferers entered into an agreement to settle their claims.

    Gold Quest International Private Limited Vs. The State of Tamil Nadu & Ors.

    Posted at  Monday, September 08, 2014  |  in  Quashing of FIR  |  Read More»

    The Indian Penal Code, 1860 - Section 420 - The Prize Chits and Money Circulation (Banning) Act, 1978 - Sections 4, 5 & 6 - No error of law in quashing the FIR after not only the parties settled their money dispute but also the other alleged sufferers entered into an agreement to settle their claims.

    The Constitution of India - Article 136 - Special Leave to Appeal - Will - Validity and Legality of - An appeal to Supreme Court can be lodged only upon grant of special leave to appeal would indicate the highly circumscribed nature of the jurisdiction of this Court. In contrast to a statutory appeal, an appeal lodged upon grant of special leave pursuant to a provision of the Constitution would call for highly economic exercise of the power which though wide to strike at injustice wherever it occurs must display highly judicious application thereof. Determination of facts made by the High Court sitting as a first appellate court or even while concurring as a second appellate court would not be reopened unless the same give rise to questions of law that require a serious debate or discloses wholly unacceptable conclusions of fact which plainly demonstrate a travesty of justice. Appreciation or re-appreciation of evidence must come to a halt at some stage of the judicial proceedings and cannot percolate to the constitutional court exercising jurisdiction under Article 136.

    Leela Rajagopal & Ors. Vs. Kamala Menon Cocharan & Ors.

    Posted at  Monday, September 08, 2014  |  in  Will  |  Read More»

    The Constitution of India - Article 136 - Special Leave to Appeal - Will - Validity and Legality of - An appeal to Supreme Court can be lodged only upon grant of special leave to appeal would indicate the highly circumscribed nature of the jurisdiction of this Court. In contrast to a statutory appeal, an appeal lodged upon grant of special leave pursuant to a provision of the Constitution would call for highly economic exercise of the power which though wide to strike at injustice wherever it occurs must display highly judicious application thereof. Determination of facts made by the High Court sitting as a first appellate court or even while concurring as a second appellate court would not be reopened unless the same give rise to questions of law that require a serious debate or discloses wholly unacceptable conclusions of fact which plainly demonstrate a travesty of justice. Appreciation or re-appreciation of evidence must come to a halt at some stage of the judicial proceedings and cannot percolate to the constitutional court exercising jurisdiction under Article 136.

    Friday, 5 September 2014

    Rajasthan Housing Board Employees Conditions of Recruitment and Promotion Regulations, 1976 - Section 53 - the Project Engineers (Junior) recruited on the basis of diploma, upon their acquiring the qualification of ‘AMIE’, are not entitled to count their experience of service prior to acquisition of such qualification for the purpose of eligibility for promotion to the post of Project Engineer (Senior) against the 20% quota fixed for promotion of degree holder Project Engineers (Junior). In order to claim promotion against such 20% quota the three years’ experience of service must be acquired after obtaining the qualification or degree of AMIE.

    K.K. Dixit & Ors. etc. Vs. Rajasthan Housing Board & Anr. etc.

    Posted at  Friday, September 05, 2014  |  in  Promotion  |  Read More»

    Rajasthan Housing Board Employees Conditions of Recruitment and Promotion Regulations, 1976 - Section 53 - the Project Engineers (Junior) recruited on the basis of diploma, upon their acquiring the qualification of ‘AMIE’, are not entitled to count their experience of service prior to acquisition of such qualification for the purpose of eligibility for promotion to the post of Project Engineer (Senior) against the 20% quota fixed for promotion of degree holder Project Engineers (Junior). In order to claim promotion against such 20% quota the three years’ experience of service must be acquired after obtaining the qualification or degree of AMIE.

    The Arbitration and Conciliation Act, 1996 - Section 34 - When in a contract of arbitration, certain disputes are expressly “excepted”, whether the Arbitrator can arbitrate on such excepted issues and what are the consequences if the Arbitrator decides such issues? Held, it was not open to the Arbitrator to decide the issues which were not arbitrable and the award, so far as it relates to disputes regarding non-arbitrable disputes is concerned, is bad in law.

    M/s Harsha Constructions Vs. Union of India & Ors.

    Posted at  Friday, September 05, 2014  |  in  Arbitration  |  Read More»

    The Arbitration and Conciliation Act, 1996 - Section 34 - When in a contract of arbitration, certain disputes are expressly “excepted”, whether the Arbitrator can arbitrate on such excepted issues and what are the consequences if the Arbitrator decides such issues? Held, it was not open to the Arbitrator to decide the issues which were not arbitrable and the award, so far as it relates to disputes regarding non-arbitrable disputes is concerned, is bad in law.

    The Indian Penal Code, 1860 - Section 302, 397, 307 r/w 34 - Eye Witness - theory of “memory”. - Scientific understanding of how memory works - Whether a particular event or the faces of a person could be remembered would depend upon the circumstances under which those faces are seen - Argument that when the incident lasted for only 90 seconds, it was difficult to remember the faces of the accused persons after 7½ years of the incident, particularly in the absence of previous acquaintance - Held, under the given circumstances and keeping in view the nature of incident, 90 seconds was too long a period which could enable the eye-witness (PW-2) to watch the accused persons and such a horrible experience would not be easily forgotten. Death of a friend and near death experience by the witness himself would be etched in the memory for long. Therefore, faces of accused persons would not have been forgotten even after 7½ years.

    Pargan Singh Vs. State of Punjab & Anr.

    Posted at  Friday, September 05, 2014  |  in  Murder  |  Read More»

    The Indian Penal Code, 1860 - Section 302, 397, 307 r/w 34 - Eye Witness - theory of “memory”. - Scientific understanding of how memory works - Whether a particular event or the faces of a person could be remembered would depend upon the circumstances under which those faces are seen - Argument that when the incident lasted for only 90 seconds, it was difficult to remember the faces of the accused persons after 7½ years of the incident, particularly in the absence of previous acquaintance - Held, under the given circumstances and keeping in view the nature of incident, 90 seconds was too long a period which could enable the eye-witness (PW-2) to watch the accused persons and such a horrible experience would not be easily forgotten. Death of a friend and near death experience by the witness himself would be etched in the memory for long. Therefore, faces of accused persons would not have been forgotten even after 7½ years.

    Thursday, 4 September 2014

    The Uttar Pradesh Official Language Act, 1951 - The Uttar Pradesh Official Language (Amendment) Act, 1989 - Section 3 - Interpretation - Hindi to be official language of the State - Urdu language shall be used as second language - the State Government issued a notification on 07.10.1989 notifying use of Urdu language as second official language for the following seven purposes: Entertaining petitions and applications in Urdu and replies thereof in Urdu, receiving documents written in Urdu by the Registration office, publication of important Government Rules, Regulations and Notifications in Urdu also, issuing Government orders and circulars of public importance in Urdu also, publication of important Government advertisements in Urdu also, publication of Urdu translation also of the Gazette, exhibition of important signposts in Urdu. Whether the impugned enactment can be said to be a valid piece of legislation within the meaning of Article 345 of the Constitution? Whether the impugned notification suffers from the vice of excessive delegation? Whether the impugned enactment and the impugned notification are valid and constitutional or ultra vires? Held, neither insertion of Section 3 in the 1989 Amendment Act nor the impugned notification in pursuance of the above provision notifying Urdu as the second language for seven purposes is unconstitutional.

    U.P. Hindi Sahitya Sammelan Vs. State of U.P.

    Posted at  Thursday, September 04, 2014  |  in  Language  |  Read More»

    The Uttar Pradesh Official Language Act, 1951 - The Uttar Pradesh Official Language (Amendment) Act, 1989 - Section 3 - Interpretation - Hindi to be official language of the State - Urdu language shall be used as second language - the State Government issued a notification on 07.10.1989 notifying use of Urdu language as second official language for the following seven purposes: Entertaining petitions and applications in Urdu and replies thereof in Urdu, receiving documents written in Urdu by the Registration office, publication of important Government Rules, Regulations and Notifications in Urdu also, issuing Government orders and circulars of public importance in Urdu also, publication of important Government advertisements in Urdu also, publication of Urdu translation also of the Gazette, exhibition of important signposts in Urdu. Whether the impugned enactment can be said to be a valid piece of legislation within the meaning of Article 345 of the Constitution? Whether the impugned notification suffers from the vice of excessive delegation? Whether the impugned enactment and the impugned notification are valid and constitutional or ultra vires? Held, neither insertion of Section 3 in the 1989 Amendment Act nor the impugned notification in pursuance of the above provision notifying Urdu as the second language for seven purposes is unconstitutional.

    The Mines and Minerals (Development and Regulation) Act, 1957 - Sections 21, 22 - The Indian Penal Code, 1860 - Section 379/114 - Whether the provisions contained in Sections 21, 22 and other sections of Mines and Minerals (Development and Regulation) Act, 1957 operate as bar against prosecution of a person who has been charged with allegation which constitutes offences under Section 379/114 and other provisions of the Indian Penal Code. In other words, whether the provisions of Mines and Minerals Act explicitly or impliedly excludes the provisions of Indian Penal Code when the act of an accused is an offence both under the Indian Penal Code (inshort, ‘IPC’) and under the provisions of Mines and Minerals (Development and Regulation) Act. Held, Considering the principles of interpretation and the wordings used in Section 22, the provision is not a complete and absolute bar for taking action by the police for illegal and dishonestly committing theft of minerals including sand from the river bed.

    State of NCT of Delhi Vs. Sanjay

    Posted at  Thursday, September 04, 2014  |  in  Mines and Minerals  |  Read More»

    The Mines and Minerals (Development and Regulation) Act, 1957 - Sections 21, 22 - The Indian Penal Code, 1860 - Section 379/114 - Whether the provisions contained in Sections 21, 22 and other sections of Mines and Minerals (Development and Regulation) Act, 1957 operate as bar against prosecution of a person who has been charged with allegation which constitutes offences under Section 379/114 and other provisions of the Indian Penal Code. In other words, whether the provisions of Mines and Minerals Act explicitly or impliedly excludes the provisions of Indian Penal Code when the act of an accused is an offence both under the Indian Penal Code (inshort, ‘IPC’) and under the provisions of Mines and Minerals (Development and Regulation) Act. Held, Considering the principles of interpretation and the wordings used in Section 22, the provision is not a complete and absolute bar for taking action by the police for illegal and dishonestly committing theft of minerals including sand from the river bed.

    The Consumer Protection Act, 1986 - Section 21(b) - The Motor Vehicles Act, 1988 - Sections 39, 43, 66, 192 - Insurance - Necessity for registration - Temporary registration - Using a vehicle on the public road without any registration is not only an offence punishable u/s. 192 of the M.V. Act but also a fundamental breach of the terms and conditions of policy contract.

    Narinder Singh Vs. New India Assurance Company Ltd. and others

    Posted at  Thursday, September 04, 2014  |  in  Motor Vehicle  |  Read More»

    The Consumer Protection Act, 1986 - Section 21(b) - The Motor Vehicles Act, 1988 - Sections 39, 43, 66, 192 - Insurance - Necessity for registration - Temporary registration - Using a vehicle on the public road without any registration is not only an offence punishable u/s. 192 of the M.V. Act but also a fundamental breach of the terms and conditions of policy contract.

    The Indian Penal Code, 1860 - Section 302/326/34 - Murder - Dying Declaration - Absence of smell of kerosene oil in the hair of the deceased sent for chemical examination does not render the dying declaration doubtful and unbelievable.

    Tanua Rabidas Vs. State of Assam

    Posted at  Thursday, September 04, 2014  |  in  Murder  |  Read More»

    The Indian Penal Code, 1860 - Section 302/326/34 - Murder - Dying Declaration - Absence of smell of kerosene oil in the hair of the deceased sent for chemical examination does not render the dying declaration doubtful and unbelievable.

    Wednesday, 3 September 2014

    Dying Declaration - In burn injury cases, two possible hypothesis arise in the judicial mind – was it suicide or was it homicide. In cases where the dying declaration projected by the prosecution gets credence, the alternative hypothesis of suicide has to be justifiably eliminated - If a dying declaration is found to be reliable, then there is no need for corroboration by any witness and conviction can be sustained on that basis alone.

    Prempal Vs. State of Haryana

    Posted at  Wednesday, September 03, 2014  |  in  Dying Declaration  |  Read More»

    Dying Declaration - In burn injury cases, two possible hypothesis arise in the judicial mind – was it suicide or was it homicide. In cases where the dying declaration projected by the prosecution gets credence, the alternative hypothesis of suicide has to be justifiably eliminated - If a dying declaration is found to be reliable, then there is no need for corroboration by any witness and conviction can be sustained on that basis alone.

    Tuesday, 2 September 2014

    The Indian Evidence Act, 1872 - Section 116 - The East Punjab Urban Land Restriction Act, 1949 - Section 13-B - Doctrine of estoppel - Estoppel of tenant; and of licensee of person in possession - Right to recover immediate possession of residential building or scheduled and/or non-residential building to accrue to Nonresident Indian - No dispute either the jural relationship of landlord and tenant between the parties or the rate of rent settled between them - The rule embodied in Section 116 simply prevents the tenant in occupation of the premises from denying the title of the landlord who let him into possession - a tenant in possession of the property cannot deny the title of the landlord - If ordinarily a landlord cannot be asked to prove his title before getting his tenant evicted on any one of the grounds stipulated for such eviction, no reason why he should be asked to do so only because he happens to be a Non-Resident Indian. The general principles of Evidence Act including the doctrine of estoppel enshrined in Section 116 are applicable even to the tenants occupying properties of the Non-Resident Indians referred to in the Act - the Courts below fell in manifest error in holding that the appellantlandlord was obliged to prove his title to the property, no matter the tenant clearly admits the existence of jural relationship of landlord and tenant between him and the appellant. 

    Kamaljit Singh Vs. Sarabjit Singh

    Posted at  Tuesday, September 02, 2014  |  in  Eviction  |  Read More»

    The Indian Evidence Act, 1872 - Section 116 - The East Punjab Urban Land Restriction Act, 1949 - Section 13-B - Doctrine of estoppel - Estoppel of tenant; and of licensee of person in possession - Right to recover immediate possession of residential building or scheduled and/or non-residential building to accrue to Nonresident Indian - No dispute either the jural relationship of landlord and tenant between the parties or the rate of rent settled between them - The rule embodied in Section 116 simply prevents the tenant in occupation of the premises from denying the title of the landlord who let him into possession - a tenant in possession of the property cannot deny the title of the landlord - If ordinarily a landlord cannot be asked to prove his title before getting his tenant evicted on any one of the grounds stipulated for such eviction, no reason why he should be asked to do so only because he happens to be a Non-Resident Indian. The general principles of Evidence Act including the doctrine of estoppel enshrined in Section 116 are applicable even to the tenants occupying properties of the Non-Resident Indians referred to in the Act - the Courts below fell in manifest error in holding that the appellantlandlord was obliged to prove his title to the property, no matter the tenant clearly admits the existence of jural relationship of landlord and tenant between him and the appellant. 

    The Indian Penal Code, 1860 - Section 302 and 304 Part-II - It is not a fit case where conviction could be sustained under Section 302, IPC. The weapon used by the appellant is a wooden stick and as per the prosecution case, the deceased was severely beaten by the said stick. As a result thereof, she died. There is no cogent evidence to show that the appellant had beaten the deceased with an intention to cause her death. In such circumstances, the conviction of the appellant under Section 304 Part-II, IPC will be just and proper.

    Kusha Laxman Waghmare Vs. State of Maharashtra

    Posted at  Tuesday, September 02, 2014  |  in  Murder  |  Read More»

    The Indian Penal Code, 1860 - Section 302 and 304 Part-II - It is not a fit case where conviction could be sustained under Section 302, IPC. The weapon used by the appellant is a wooden stick and as per the prosecution case, the deceased was severely beaten by the said stick. As a result thereof, she died. There is no cogent evidence to show that the appellant had beaten the deceased with an intention to cause her death. In such circumstances, the conviction of the appellant under Section 304 Part-II, IPC will be just and proper.

    The LIC of India (Staff) Regulations, 1960 - Regulation 39(1)(f)

    Life Insurance Corporation of India & Ors. Vs. Triveni Sharan Mishra

    Posted at  Tuesday, September 02, 2014  |  in  Service  |  Read More»

    The LIC of India (Staff) Regulations, 1960 - Regulation 39(1)(f)

    The Delhi Municipal Corporation Health Service Recruitment Regulations, 1982

    Vireshwar Singh & Ors. Vs. Municipal Corporation of Delhi & Ors.

    Posted at  Tuesday, September 02, 2014  |  in  UPSC  |  Read More»

    The Delhi Municipal Corporation Health Service Recruitment Regulations, 1982

    Uttar Pradesh High Schools andIntermediate Colleges (Payment of Salaries of Teachers and Other Employees) Act, 1971 - Uttar Pradesh Basic Education Act, 1972  - Uttar Pradesh Recognised Basic Schools (Recruitment and Conditions of Service of Teachers and Other Conditions) Rules, 1975 - Uttar Pradesh Junior High Schools (Payment of Salaries of Teachers and Other Employees) Act, 1978 - Uttar Pradesh Recognised Basic Schools (Junior High Schools) (Recruitment and Conditions of Service of Teachers) Rules, 1978 - Whether teachers of privately managed primary schools and primary sections of privately managed high schools are eligible to receive their salaries from the State Government?

    State of U.P. & Ors. Vs. Pawan Kumar Divedi & Ors.

    Posted at  Tuesday, September 02, 2014  |  in  Education  |  Read More»

    Uttar Pradesh High Schools andIntermediate Colleges (Payment of Salaries of Teachers and Other Employees) Act, 1971 - Uttar Pradesh Basic Education Act, 1972  - Uttar Pradesh Recognised Basic Schools (Recruitment and Conditions of Service of Teachers and Other Conditions) Rules, 1975 - Uttar Pradesh Junior High Schools (Payment of Salaries of Teachers and Other Employees) Act, 1978 - Uttar Pradesh Recognised Basic Schools (Junior High Schools) (Recruitment and Conditions of Service of Teachers) Rules, 1978 - Whether teachers of privately managed primary schools and primary sections of privately managed high schools are eligible to receive their salaries from the State Government?

    Monday, 1 September 2014

    Admission to the M.B.B.S. course - Principles - Unless such claims of exceptional nature are brought before the Court within the time schedule fixed by this Court, Court or Board should not pass orders for granting admission into any particular course out of time.

    Chandigarh Administration & Another Vs. Jasmine Kaur & others

    Posted at  Monday, September 01, 2014  |  in  MBBS  |  Read More»

    Admission to the M.B.B.S. course - Principles - Unless such claims of exceptional nature are brought before the Court within the time schedule fixed by this Court, Court or Board should not pass orders for granting admission into any particular course out of time.

    The Arbitration and Conciliation Act, 1996 - Section 34 - Appellant is entitled for crane hire charges and, therefore, that amount needs to be deducted from the amount payable to the respondent under the Award on other heads - the appellant is not liable to pay any pre-Award interest and the interest @ 10.5% p.a. shall be payable by the appellant only from the date of Award till the date of payment on the Award amount now found payable, if any.

    Bharat Heavy Electricals Ltd. Vs. Tata Projects Ltd.

    Posted at  Monday, September 01, 2014  |  in  Arbitration  |  Read More»

    The Arbitration and Conciliation Act, 1996 - Section 34 - Appellant is entitled for crane hire charges and, therefore, that amount needs to be deducted from the amount payable to the respondent under the Award on other heads - the appellant is not liable to pay any pre-Award interest and the interest @ 10.5% p.a. shall be payable by the appellant only from the date of Award till the date of payment on the Award amount now found payable, if any.

    Friday, 29 August 2014

    The Representation of the People Act, 1951 - Section 83 - The Code of Civil Procedure, 1908 - Order VII Rule 11(a) - The Constitution of India - Article 191(1)(a) - Election Petition - Contents of petition - Office of profit - Disqualification for membership - Whether the averments in the election petition disclose a cause of action - The respondent was the Chairperson of the Kerala State Wakf Board when he contested the election to the Kerala Legislative Assembly.  the election petition having disclosed a cause of action, it should not have been thrown out at the threshold. The impugned order and judgment are hence set aside. The appeals are allowed. The election petition is remitted to the High Court for trial in accordance with law.

    Ashraf Kokkur Vs. K.V.Abdul Khader Etc.

    Posted at  Friday, August 29, 2014  |  in    |  Read More»

    The Representation of the People Act, 1951 - Section 83 - The Code of Civil Procedure, 1908 - Order VII Rule 11(a) - The Constitution of India - Article 191(1)(a) - Election Petition - Contents of petition - Office of profit - Disqualification for membership - Whether the averments in the election petition disclose a cause of action - The respondent was the Chairperson of the Kerala State Wakf Board when he contested the election to the Kerala Legislative Assembly.  the election petition having disclosed a cause of action, it should not have been thrown out at the threshold. The impugned order and judgment are hence set aside. The appeals are allowed. The election petition is remitted to the High Court for trial in accordance with law.

    Wednesday, 27 August 2014

    Constitution of India - Articles 74, 75, 84, 102, 163 - Criminalisation of Politics - Constitutional Provisions - Purity of Election - Corruption in the present scenario - Provisions relating to qualifications and disqualification of MPs And MLAs/MLCs - Council of Ministers of State who aid and advise the Governor - Doctrine of Implied Limitation - Principle Of Constitutional Silence Or Abeyance - Doctrine Of Constitutional Implications - Other Relevant Constitutional Concepts – Constitutional Morality, Good Governance And Constitutional Trust - Good Governance - Salus Populi Suprema Lex - Constitutional Trust - Inidividual Responsibility Of Ministers - Analysis Of The Term “Advice’ Under Article 75 (1) - Qualifications and disqualifications for being a legislator - Constitution negatively provides the qualification for membership of Parliament - Disqualifications for membership of either House of Parliament - Issue of criminal antecedents.

    Manoj Narula Vs. Union of India

    Posted at  Wednesday, August 27, 2014  |  in  Politics  |  Read More»

    Constitution of India - Articles 74, 75, 84, 102, 163 - Criminalisation of Politics - Constitutional Provisions - Purity of Election - Corruption in the present scenario - Provisions relating to qualifications and disqualification of MPs And MLAs/MLCs - Council of Ministers of State who aid and advise the Governor - Doctrine of Implied Limitation - Principle Of Constitutional Silence Or Abeyance - Doctrine Of Constitutional Implications - Other Relevant Constitutional Concepts – Constitutional Morality, Good Governance And Constitutional Trust - Good Governance - Salus Populi Suprema Lex - Constitutional Trust - Inidividual Responsibility Of Ministers - Analysis Of The Term “Advice’ Under Article 75 (1) - Qualifications and disqualifications for being a legislator - Constitution negatively provides the qualification for membership of Parliament - Disqualifications for membership of either House of Parliament - Issue of criminal antecedents.

    Tuesday, 26 August 2014

    The Indian Penal Code, 1860 - Sections 148, 149, 302, 307, 449, 323 and 216 - The Arms Act, 1959 - Section 25 - The evidence of injured witness, being a stamped witness, is accorded a special status in law. This is as a consequence of the fact that injury to the witness is an inbuilt guarantee of his presence at the scene of the crime and because the witness would not want to let actual assailant go unpunished.

    Balwan & Ors. Vs. State of Haryana

    Posted at  Tuesday, August 26, 2014  |  in  Arms  |  Read More»

    The Indian Penal Code, 1860 - Sections 148, 149, 302, 307, 449, 323 and 216 - The Arms Act, 1959 - Section 25 - The evidence of injured witness, being a stamped witness, is accorded a special status in law. This is as a consequence of the fact that injury to the witness is an inbuilt guarantee of his presence at the scene of the crime and because the witness would not want to let actual assailant go unpunished.

    The Code of Criminal Procedure, 1973 - Section 482 - The Indian Penal Code, 1860 - Sections 379, 406, 420 - Whether the respondents are guilty under Section 379 IPC or not is a matter of evidence. The fact that the police chose to file a chargesheet under Section 406 and 420 IPC is not conclusive regarding the offences for which the respondents-accused are to be tried. The trial Court can always frame an appropriate charge if there is sufficient material from the report of the police available before it. In case where the material is insufficient to frame a charge, the trial Court may either discharge the accused or may direct further investigation in the matter. Before deciding as to which one of the three courses of action mentioned above is to be resorted to, the trial Court must examine the content of the complaint, the evidence gathered by the investigating agency and also scrutinize whether the investigating agency proceeded in the right direction.

    Ghanshyam Sharma Vs. Surendra Kumar Sharma & Ors.

    Posted at  Tuesday, August 26, 2014  |  in  Quashing of FIR  |  Read More»

    The Code of Criminal Procedure, 1973 - Section 482 - The Indian Penal Code, 1860 - Sections 379, 406, 420 - Whether the respondents are guilty under Section 379 IPC or not is a matter of evidence. The fact that the police chose to file a chargesheet under Section 406 and 420 IPC is not conclusive regarding the offences for which the respondents-accused are to be tried. The trial Court can always frame an appropriate charge if there is sufficient material from the report of the police available before it. In case where the material is insufficient to frame a charge, the trial Court may either discharge the accused or may direct further investigation in the matter. Before deciding as to which one of the three courses of action mentioned above is to be resorted to, the trial Court must examine the content of the complaint, the evidence gathered by the investigating agency and also scrutinize whether the investigating agency proceeded in the right direction.

    The Contract Labour (Regulation and Abolition) Act, 1970 - Section 10(1) - Since the decisions in the writ petitions have reached finality, such question cannot be reagitated in another writ petition between same parties as the question will be hit by the principles of res judicata. Once the Notification dated 28th April, 2000 for abolition of contract labour in respect of the workers in DAP Plant – Cleaning of granulation dry section, cleaning in combustion chamber, etc. was issued, it was incumbent on the part of the Company to implement the same. Since it was not implemented, the High Court rightly directed to implement the same.

    M/s Paradeep Phosphate Ltd. Vs. Paradeep Phosphate Mazdoor Union & Ors.

    Posted at  Tuesday, August 26, 2014  |  in  Contract Labour  |  Read More»

    The Contract Labour (Regulation and Abolition) Act, 1970 - Section 10(1) - Since the decisions in the writ petitions have reached finality, such question cannot be reagitated in another writ petition between same parties as the question will be hit by the principles of res judicata. Once the Notification dated 28th April, 2000 for abolition of contract labour in respect of the workers in DAP Plant – Cleaning of granulation dry section, cleaning in combustion chamber, etc. was issued, it was incumbent on the part of the Company to implement the same. Since it was not implemented, the High Court rightly directed to implement the same.

    The Arbitration and Conciliation Act, 1996 - Section 34 - Scope of interference of the Court - Court would not be justified in reappraising the material on record and substituting its own view in place of the Arbitrator’s view. Where there is an error apparent on the face of the record or the Arbitrator has not followed the statutory legal position, then and then only it would be justified in interfering with the award published by the Arbitrator. Once the Arbitrator has applied his mind to the matter before him, the Court cannot reappraise the matter as if it were an appeal and even if two views are possible, the view taken by the Arbitrator would prevail.

    M/s Navodaya Mass Entertainment Ltd. Vs. M/s J.M.Combines

    Posted at  Tuesday, August 26, 2014  |  in  Arbitration  |  Read More»

    The Arbitration and Conciliation Act, 1996 - Section 34 - Scope of interference of the Court - Court would not be justified in reappraising the material on record and substituting its own view in place of the Arbitrator’s view. Where there is an error apparent on the face of the record or the Arbitrator has not followed the statutory legal position, then and then only it would be justified in interfering with the award published by the Arbitrator. Once the Arbitrator has applied his mind to the matter before him, the Court cannot reappraise the matter as if it were an appeal and even if two views are possible, the view taken by the Arbitrator would prevail.

    Monday, 25 August 2014

    Mines and Minerals (Development and Regulation) Act, 1957 - Coal Mines (Nationalisation) Act, 1973 - Section 3(3)(a)(iii) - Breach of - Allocation of coal blocks - Non-compliance of the mandatory legal procedure - Violation of the principle of Trusteeship of natural resources by gifting away precious resources as largesse - Arbitrariness, lack of transparency, lack of objectivity and non-application of mind; and Allotment tainted with mala fides and corruption and made in favour of ineligible companies tainted with mala fides and corruption.

    Manohar Lal Sharma Vs. The Principal Secretary & Ors.

    Posted at  Monday, August 25, 2014  |  in  Coal Mines  |  Read More»

    Mines and Minerals (Development and Regulation) Act, 1957 - Coal Mines (Nationalisation) Act, 1973 - Section 3(3)(a)(iii) - Breach of - Allocation of coal blocks - Non-compliance of the mandatory legal procedure - Violation of the principle of Trusteeship of natural resources by gifting away precious resources as largesse - Arbitrariness, lack of transparency, lack of objectivity and non-application of mind; and Allotment tainted with mala fides and corruption and made in favour of ineligible companies tainted with mala fides and corruption.

    Thursday, 21 August 2014

    Gift Deed - the gift deed dated 26.04.1952 irrevocably vested all rights in the immovable property in Banu Bibi, it is natural for us to conclude, that the sale of the gifted immovable property by Banu Bibi to V.Sreeramachandra Avadhani on 02.05.1978, was legal and valid. Consequently, the claim of the respondents to the gifted property, on the demise of Banu Bibi on 17.02.1989, is not sustainable in law.

    V. Sreeramachandra Avadhani (d) By L.rs. Vs. Shaik Abdul Rahim & Anr.

    Posted at  Thursday, August 21, 2014  |  in  Gift  |  Read More»

    Gift Deed - the gift deed dated 26.04.1952 irrevocably vested all rights in the immovable property in Banu Bibi, it is natural for us to conclude, that the sale of the gifted immovable property by Banu Bibi to V.Sreeramachandra Avadhani on 02.05.1978, was legal and valid. Consequently, the claim of the respondents to the gifted property, on the demise of Banu Bibi on 17.02.1989, is not sustainable in law.

    Wednesday, 20 August 2014

    Negotiable Instruments Act, 1881 -  Section 138 - It is no longer arguable that the issuance of the notice has relevance to the question of criminal territorial jurisdiction under Section 138 of the NI Act in view of the deliberations in Dashrath Rupsingh Case.

    Shivgiri Associates & Ors. Vs. Metso Mineral (india) Pvt. Ltd.

    Posted at  Wednesday, August 20, 2014  |  in  Cheque  |  Read More»

    Negotiable Instruments Act, 1881 -  Section 138 - It is no longer arguable that the issuance of the notice has relevance to the question of criminal territorial jurisdiction under Section 138 of the NI Act in view of the deliberations in Dashrath Rupsingh Case.

    Thursday, 14 August 2014

    Service Law - L.I.C. of India (Staff) Regulations, 1960 - Regulation 39(1)(b) - Wednesbury Principles - Judicial Review - Disciplinary Authority - Punishment - Scope and power of judicial review of the courts while dealing with the validity of quantum of punishment imposed by the disciplinary authority - In case if the Court felt that the quantum of punishment was disproportionate, then it should remand the matter back to the disciplinary authority instead of modifying the punishment on its own - the High Court transgressed its limits of judicial review by itself assuming the role of sitting as departmental appellate authority, which is not permissible in law.

    The Life Insurance Corporation of India & Others Vs. S. Vasanthi

    Posted at  Thursday, August 14, 2014  |  in  Service  |  Read More»

    Service Law - L.I.C. of India (Staff) Regulations, 1960 - Regulation 39(1)(b) - Wednesbury Principles - Judicial Review - Disciplinary Authority - Punishment - Scope and power of judicial review of the courts while dealing with the validity of quantum of punishment imposed by the disciplinary authority - In case if the Court felt that the quantum of punishment was disproportionate, then it should remand the matter back to the disciplinary authority instead of modifying the punishment on its own - the High Court transgressed its limits of judicial review by itself assuming the role of sitting as departmental appellate authority, which is not permissible in law.

    Wednesday, 13 August 2014

    Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977 - Terms and conditions of service of employees of Private schools - Qualifications and appointment of Head - Qualifications of Teachers - Qualifications for Primary Teachers -Qualifications for trained Teachers in Secondary Schools and Junior Colleges of Education - Graduate Teachers - Seniority List - For promotion to the post of Head Master of a Primary School, whether seniority of the teacher is to be counted from the date of initial appointment, or from the date of acquisition of educational and training qualification?

    Viman Vaman Awale Vs. Gangadhar Makhriya Charitable Trust & Ors.

    Posted at  Wednesday, August 13, 2014  |  in  Teacher  |  Read More»

    Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977 - Terms and conditions of service of employees of Private schools - Qualifications and appointment of Head - Qualifications of Teachers - Qualifications for Primary Teachers -Qualifications for trained Teachers in Secondary Schools and Junior Colleges of Education - Graduate Teachers - Seniority List - For promotion to the post of Head Master of a Primary School, whether seniority of the teacher is to be counted from the date of initial appointment, or from the date of acquisition of educational and training qualification?

    Code of Criminal Procedure, 1973 - Sections 200 and 202 - Whether a Magistrate after accepting a negative final report submitted by the Police can take action on the basis of the protest petition filed by the complainant/first informant?

    Rakesh & Anr. Vs. State of U.P. & Anr.

    Posted at  Wednesday, August 13, 2014  |  in  Protest Petition  |  Read More»

    Code of Criminal Procedure, 1973 - Sections 200 and 202 - Whether a Magistrate after accepting a negative final report submitted by the Police can take action on the basis of the protest petition filed by the complainant/first informant?

    Arbitration & Conciliation Act, 1996 - Section 11 - 

    North Eastern Railway & Ors. Vs. Tripple Engineering Works

    Posted at  Wednesday, August 13, 2014  |  in  Arbitration  |  Read More»

    Arbitration & Conciliation Act, 1996 - Section 11 - 

    Cantonment Act, 1924 - Section 181, 274 -Conveying a lease of the building standing on the cantonment land with the power of resumption in the cantonment authority subject to payment of compensation for the cost of the building and not as a lease of the land itself.

    Purshottam Das Tandon Dead by Lrs. Vs. Military Estate Officer & Ors.

    Posted at  Wednesday, August 13, 2014  |  in  Cantonment  |  Read More»

    Cantonment Act, 1924 - Section 181, 274 -Conveying a lease of the building standing on the cantonment land with the power of resumption in the cantonment authority subject to payment of compensation for the cost of the building and not as a lease of the land itself.

    Tuesday, 12 August 2014

    Criminal Procedure Code, 1973 - Section 482 - Negotiable Instruments Act, 1881 - Section 138 - Negotiable Instruments (Amendment and Miscellaneous Provisions) Act, 2002 - Dishonour of cheque for insufficiency, etc. of funds in the account - Cognizance of offences - Plea of Limitation - Condone the Delay - Whether the handwritten note sent by the complainant to the respondent could be treated as ‘notice’  - Whether the notice issued by the advocate could only be treated as ‘notice’ within the meaning of Section 138 of the Act? - If there was any delay in filing the Complaint whether such delay could have been condoned by the High Court in accordance with the provisions of the Act? - Whether the High Court was right in quashing the criminal proceedings on the ground of limitation or instead of quashing the criminal proceedings it ought to have remitted the matter back to the Trial Court for deciding the issue of limitation? Held, the handwritten note fulfilling the mandatory requirements under clause (b) of proviso to Section 138 could be said to be a valid ‘notice’ - High Court was not right in quashing the complaint merely on the ground that complaint is barred by limitation, that too a plea which was taken for the first time before the High Court - On the other hand, the High Court ought to have remanded the matter to the Trial Court for deciding the issue of limitation - Without even filing an application seeking condonation of delay at an initial stage, complainant cannot be given opportunity at any stage of the proceeding - Only to afford an opportunity for the complainant Apex Court allowed to move an application seeking condonation of delay, under the peculiar facts and circumstances of the case.

    Pawan Kumar Ralli Vs. Maninder Singh Narula

    Posted at  Tuesday, August 12, 2014  |  in  Notice  |  Read More»

    Criminal Procedure Code, 1973 - Section 482 - Negotiable Instruments Act, 1881 - Section 138 - Negotiable Instruments (Amendment and Miscellaneous Provisions) Act, 2002 - Dishonour of cheque for insufficiency, etc. of funds in the account - Cognizance of offences - Plea of Limitation - Condone the Delay - Whether the handwritten note sent by the complainant to the respondent could be treated as ‘notice’  - Whether the notice issued by the advocate could only be treated as ‘notice’ within the meaning of Section 138 of the Act? - If there was any delay in filing the Complaint whether such delay could have been condoned by the High Court in accordance with the provisions of the Act? - Whether the High Court was right in quashing the criminal proceedings on the ground of limitation or instead of quashing the criminal proceedings it ought to have remitted the matter back to the Trial Court for deciding the issue of limitation? Held, the handwritten note fulfilling the mandatory requirements under clause (b) of proviso to Section 138 could be said to be a valid ‘notice’ - High Court was not right in quashing the complaint merely on the ground that complaint is barred by limitation, that too a plea which was taken for the first time before the High Court - On the other hand, the High Court ought to have remanded the matter to the Trial Court for deciding the issue of limitation - Without even filing an application seeking condonation of delay at an initial stage, complainant cannot be given opportunity at any stage of the proceeding - Only to afford an opportunity for the complainant Apex Court allowed to move an application seeking condonation of delay, under the peculiar facts and circumstances of the case.

    Thursday, 7 August 2014

    Constitution of India - Article 341 - Constitution (Pondicherry) Scheduled Castes Order, 1964 - Scheduled Castes - It is important to bear in mind that it is by virtue of the notification of President under Article 341(1) that the Scheduled Castes come into being. The members of the Scheduled Castes are drawn from castes, races or tribes, they attain a new status by virtue of Presidential Order. Clause (2) of Article 341 empowers Parliament alone by law to include or exclude from the list of Scheduled Castes specified in a notification issued under Clause (1) by the President. By no executive power, the amendment, modification, alteration or variance in the Presidential Order is permissible. It is not open to the executive to do anything directly or indirectly which may lead to any change in the Presidential Order. Once Presidential Order has been issued under Article 341(1) or Article 342(1), any amendment in the Presidential Order can only be made by the Parliament by law as provided in Article 341(2) or Article 342(2), as the case may be, and in no other manner. The interpretation of “resident” in the Presidential Order as “of origin” amounts to altering the Presidential Order. Thus, impugned Government Orders - G.O.M. 11/2005 and G.O.M. 12/2005 - not being in conformity and consonance with the Presidential Order, 1964 cannot be sustained in law and have to be set aside.

    Puducherry S.S. People Welfare Association Vs. Chief Secretary To Govt., Union Territory of Pondicherry & Ors.

    Posted at  Thursday, August 07, 2014  |  in  Scheduled Caste  |  Read More»

    Constitution of India - Article 341 - Constitution (Pondicherry) Scheduled Castes Order, 1964 - Scheduled Castes - It is important to bear in mind that it is by virtue of the notification of President under Article 341(1) that the Scheduled Castes come into being. The members of the Scheduled Castes are drawn from castes, races or tribes, they attain a new status by virtue of Presidential Order. Clause (2) of Article 341 empowers Parliament alone by law to include or exclude from the list of Scheduled Castes specified in a notification issued under Clause (1) by the President. By no executive power, the amendment, modification, alteration or variance in the Presidential Order is permissible. It is not open to the executive to do anything directly or indirectly which may lead to any change in the Presidential Order. Once Presidential Order has been issued under Article 341(1) or Article 342(1), any amendment in the Presidential Order can only be made by the Parliament by law as provided in Article 341(2) or Article 342(2), as the case may be, and in no other manner. The interpretation of “resident” in the Presidential Order as “of origin” amounts to altering the Presidential Order. Thus, impugned Government Orders - G.O.M. 11/2005 and G.O.M. 12/2005 - not being in conformity and consonance with the Presidential Order, 1964 cannot be sustained in law and have to be set aside.

    Constitution of India - Article 226 - Constitution (15th) Amendment Act, 1963 - Clause 1(A) - Constitution (42nd) Amendment Act, 1976 - Clause (2) - Power of High Courts to issue certain writs  – Scope of Article 226(2) of the Constitution, particularly the cause of action in maintaining a writ petition - Undue hardship and inconvenience to the citizens to invoke writ jurisdiction - High Court can issue a writ when the person or the authority against whom the writ is issued is located outside its territorial jurisdiction, if the cause of action wholly or partially arises within the court’s territorial jurisdiction - On a plain reading of Clause(2) of Article 226 it is manifestly clear that the High Court can exercise power to issue direction, order or writs for the enforcement of any of the fundamental rights or for any other purpose if the cause of action in relation to which it exercises jurisdiction notwithstanding that the seat of the Government or authority or the residence of the person against whom the direction, order or writ is issued is not within the said territory - There cannot be any doubt that the question whether or not cause of action wholly or in part for filing a writ petition has arisen within the territorial limit of any High Court has to be decided in the light of the nature and character of the proceedings under Article 226 of the Constitution. In order to maintain a writ petition, the petitioner has to establish that a legal right claimed by him has been infringed by the respondents within the territorial limit of the Court’s jurisdiction.

    Constitution of India - Article 226 (2) - Cause of action for the purpose of - Cause of action is bundle of facts which is necessary for the plaintiff to prove in the suit before he can succeed.

    Nawal Kishore Sharma Vs. Union of India and Others

    Posted at  Thursday, August 07, 2014  |  in  Writ  |  Read More»

    Constitution of India - Article 226 - Constitution (15th) Amendment Act, 1963 - Clause 1(A) - Constitution (42nd) Amendment Act, 1976 - Clause (2) - Power of High Courts to issue certain writs  – Scope of Article 226(2) of the Constitution, particularly the cause of action in maintaining a writ petition - Undue hardship and inconvenience to the citizens to invoke writ jurisdiction - High Court can issue a writ when the person or the authority against whom the writ is issued is located outside its territorial jurisdiction, if the cause of action wholly or partially arises within the court’s territorial jurisdiction - On a plain reading of Clause(2) of Article 226 it is manifestly clear that the High Court can exercise power to issue direction, order or writs for the enforcement of any of the fundamental rights or for any other purpose if the cause of action in relation to which it exercises jurisdiction notwithstanding that the seat of the Government or authority or the residence of the person against whom the direction, order or writ is issued is not within the said territory - There cannot be any doubt that the question whether or not cause of action wholly or in part for filing a writ petition has arisen within the territorial limit of any High Court has to be decided in the light of the nature and character of the proceedings under Article 226 of the Constitution. In order to maintain a writ petition, the petitioner has to establish that a legal right claimed by him has been infringed by the respondents within the territorial limit of the Court’s jurisdiction.

    Constitution of India - Article 226 (2) - Cause of action for the purpose of - Cause of action is bundle of facts which is necessary for the plaintiff to prove in the suit before he can succeed.

    Wednesday, 6 August 2014

    The Indian Penal Code, 1860 - Sections 147, 148, 452, 324, 307 and 302 - The Juvenile Justice (Care and Protection of Children) Rules, 2007 - Rule 98 - Disposed off cases of juveniles in conflict with law - the maximum period for which a juvenile could be kept in a special home is for three years.

    Hakkim Vs. State Represented by Deputy Superintendent of Police

    Posted at  Wednesday, August 06, 2014  |  in  Juvenile  |  Read More»

    The Indian Penal Code, 1860 - Sections 147, 148, 452, 324, 307 and 302 - The Juvenile Justice (Care and Protection of Children) Rules, 2007 - Rule 98 - Disposed off cases of juveniles in conflict with law - the maximum period for which a juvenile could be kept in a special home is for three years.

    Monday, 4 August 2014

    Negotiable Instruments Act, 1881 -Section 138 - Territorial Jurisdiction - The territorial jurisdiction is restricted to the Court within whose local jurisdiction the offence was committed, i.e. where the cheque is dishonoured by the bank on which it is drawn.

    Dashrath Rupsingh Rathod Vs. State of Maharashtra & Anr.

    Posted at  Monday, August 04, 2014  |  in  Cheque  |  Read More»

    Negotiable Instruments Act, 1881 -Section 138 - Territorial Jurisdiction - The territorial jurisdiction is restricted to the Court within whose local jurisdiction the offence was committed, i.e. where the cheque is dishonoured by the bank on which it is drawn.

    Friday, 1 August 2014

    The Representation of People Act, 1951 - Section 116A read with Section 116B - The Constitution of India - Article 191(1)(a) - The Haj Committee Act, 2002 (Central Act 35 of 2002) - Section 3 - The Parliament (Prevention of Disqualification) Act, 1959 - Section 3 - The Parliament (Prevention of Disqualification) Act, 2006 - The Kerala Legislative Assembly (Removal of Disqualification) Act, 1951 (Act 15 of 1951) -Whether the first respondent occupies the office under the State Government? and If it is an office, is he the holder of an office of profit? Appellant has advanced a submission that profit should not be confined to pecuniary benefits but also to other factors such as status, power and influence emanating from the post - first respondent happened to be Chairperson of the State Haj Committee of Kerala and the allowances admissible to the Haj Committee of India have not been shown to be same as that for the State Haj Committee, Kerala - What are the essential requirements for determining whether the office in question is an ‘office of profit’ or not - The plea raised by  the appellant that the word ‘profit’ should include even status and influence etc., besides the pecuniary profits, is not found acceptable - An ‘office of profit’ is an office which is capable of yielding a profit or pecuniary gain. The word ‘profit’ has always been treated equivalent to or a substitute for the term ‘pecuniary gain’. The very context, in which the word ‘profit’ has been used after the words ‘office of’, shows that not all offices are disqualified but only those which yield pecuniary gains as profit other than mere compensatory allowances, to the holder of the office - There is no requirement to make a departure from the long line of established precedents on this issue. If the submissions of learned counsel for the appellant were to be accepted, it would add a great amount of uncertainty in deciding whether an office is an ‘office of profit’ or not. 

    U.C. Raman Vs. P.T.A. Rahim

    Posted at  Friday, August 01, 2014  |  in  Election  |  Read More»

    The Representation of People Act, 1951 - Section 116A read with Section 116B - The Constitution of India - Article 191(1)(a) - The Haj Committee Act, 2002 (Central Act 35 of 2002) - Section 3 - The Parliament (Prevention of Disqualification) Act, 1959 - Section 3 - The Parliament (Prevention of Disqualification) Act, 2006 - The Kerala Legislative Assembly (Removal of Disqualification) Act, 1951 (Act 15 of 1951) -Whether the first respondent occupies the office under the State Government? and If it is an office, is he the holder of an office of profit? Appellant has advanced a submission that profit should not be confined to pecuniary benefits but also to other factors such as status, power and influence emanating from the post - first respondent happened to be Chairperson of the State Haj Committee of Kerala and the allowances admissible to the Haj Committee of India have not been shown to be same as that for the State Haj Committee, Kerala - What are the essential requirements for determining whether the office in question is an ‘office of profit’ or not - The plea raised by  the appellant that the word ‘profit’ should include even status and influence etc., besides the pecuniary profits, is not found acceptable - An ‘office of profit’ is an office which is capable of yielding a profit or pecuniary gain. The word ‘profit’ has always been treated equivalent to or a substitute for the term ‘pecuniary gain’. The very context, in which the word ‘profit’ has been used after the words ‘office of’, shows that not all offices are disqualified but only those which yield pecuniary gains as profit other than mere compensatory allowances, to the holder of the office - There is no requirement to make a departure from the long line of established precedents on this issue. If the submissions of learned counsel for the appellant were to be accepted, it would add a great amount of uncertainty in deciding whether an office is an ‘office of profit’ or not. 

    Wednesday, 23 July 2014

    Commissions of Inquiry Act, 1952 - Contempt of Courts Act, 1971 - When a sitting Supreme Court Judge is appointed as a Commissioner by the Central Government under the 1952 Act, does he carry with him all the powers and jurisdiction of the Supreme Court? In other words, whether the functions which are discharged by the Supreme Court Judge as a Commissioner are purely statutory functions independent of the jurisdiction vested in the Supreme Court? Held, the Commission appointed under the 1952 Act is not a Court for the purposes of Contempt of Courts Act even though it is headed by a sitting Supreme Court Judge. 

    Contempt of Courts Act, 1971 - Whether truth can be pleaded as defence in contempt proceedings? Held, the amended section enables the Court to permit justification by truth as a valid defence in any contempt proceedings if it is satisfied that such defence is in public interest and the request for invoking the defence is bona fide.

    Dr. Subramanian Swamy Vs. Arun Shourie

    Posted at  Wednesday, July 23, 2014  |  in  Contempt  |  Read More»

    Commissions of Inquiry Act, 1952 - Contempt of Courts Act, 1971 - When a sitting Supreme Court Judge is appointed as a Commissioner by the Central Government under the 1952 Act, does he carry with him all the powers and jurisdiction of the Supreme Court? In other words, whether the functions which are discharged by the Supreme Court Judge as a Commissioner are purely statutory functions independent of the jurisdiction vested in the Supreme Court? Held, the Commission appointed under the 1952 Act is not a Court for the purposes of Contempt of Courts Act even though it is headed by a sitting Supreme Court Judge. 

    Contempt of Courts Act, 1971 - Whether truth can be pleaded as defence in contempt proceedings? Held, the amended section enables the Court to permit justification by truth as a valid defence in any contempt proceedings if it is satisfied that such defence is in public interest and the request for invoking the defence is bona fide.

    Acquisition of Certain Area at Ayodhya Act, 1993 - Contempt Proceedings - Subject matter remained dormant for almost two decades and now contemner No.3 is 96 years and he is not able to respond to the charges due to old age and illness - do not think that this is a fit case where - should deal with the matter further - contemner Nos.1 and 2 have also tendered unconditional apology - Insofar as contemner Nos.4 to 6 are concerned, the Court has not yet taken cognizance of criminal complaint against them - In what has been said above, the contempt matters deserve to be closed - order accordingly.

    Rajeev Dhawan Vs. Gulshan Kumar Mahajan & Ors.

    Posted at  Wednesday, July 23, 2014  |  in  Contempt  |  Read More»

    Acquisition of Certain Area at Ayodhya Act, 1993 - Contempt Proceedings - Subject matter remained dormant for almost two decades and now contemner No.3 is 96 years and he is not able to respond to the charges due to old age and illness - do not think that this is a fit case where - should deal with the matter further - contemner Nos.1 and 2 have also tendered unconditional apology - Insofar as contemner Nos.4 to 6 are concerned, the Court has not yet taken cognizance of criminal complaint against them - In what has been said above, the contempt matters deserve to be closed - order accordingly.

    Tuesday, 22 July 2014

    Indian Administrative Service (Appointment by Promotion) Regulations, 1955 - Regulation 5(4) - It was incumbent upon State Government to forward complete service records of all the eligible candidates to the UPSC for considering them for promotion to IAS cadre.

    G. Mohanasundaram Vs. R. Nanthagopal and Ors.

    Posted at  Tuesday, July 22, 2014  |  in  UPSC  |  Read More»

    Indian Administrative Service (Appointment by Promotion) Regulations, 1955 - Regulation 5(4) - It was incumbent upon State Government to forward complete service records of all the eligible candidates to the UPSC for considering them for promotion to IAS cadre.

    Sahara Case - Three offshore hotel properties owned by Saharas are allowed to be transferred, sold or encumbered subject to the condition that the entire sale consideration received by the Saharas after repayment of the loan outstanding towards the Bank of China is deposited with SEBI towards compliance with the directions contained in the conditional bail order dated 26.3.2014 passed by this Court. The excess amount, if any, shall be deposited by the Saharas in a separate account to await orders from this Court regarding their utilisation. The sale of the offshore properties shall not be at a price lesser than the value estimated by CBRE and JLL for the said properties reduced at the most by 5% of such value - Sale of remainder of the properties which Saharas have been allowed to transfer, sell or encumber in terms of our order dated 4th June, 2014 shall not be at a price less than the estimated value of the said properties reduced at the most by 5% of such estimate - Shri Shekhar Naphade, Senior Advocate, to assist the Court in the case as an Amicus Curiae.

    S.E.B.I. Vs. Sahara India Real Estate Corporation Ltd. & Ors.

    Posted at  Tuesday, July 22, 2014  |  in  Sahara Case  |  Read More»

    Sahara Case - Three offshore hotel properties owned by Saharas are allowed to be transferred, sold or encumbered subject to the condition that the entire sale consideration received by the Saharas after repayment of the loan outstanding towards the Bank of China is deposited with SEBI towards compliance with the directions contained in the conditional bail order dated 26.3.2014 passed by this Court. The excess amount, if any, shall be deposited by the Saharas in a separate account to await orders from this Court regarding their utilisation. The sale of the offshore properties shall not be at a price lesser than the value estimated by CBRE and JLL for the said properties reduced at the most by 5% of such value - Sale of remainder of the properties which Saharas have been allowed to transfer, sell or encumber in terms of our order dated 4th June, 2014 shall not be at a price less than the estimated value of the said properties reduced at the most by 5% of such estimate - Shri Shekhar Naphade, Senior Advocate, to assist the Court in the case as an Amicus Curiae.

    Indian Penal Code (45 of 1860) - Sections 147, 148, 149 r/w 302, 120B - Criminal Law (Amendment) Act, 2013 - Section 7 - Code of Criminal Procedure, 1973 - Section 389 -Suspension of sentence pending the appeal; release of appellant on bail - Whether the appellate court, while considering the release of the convict on bail, should give an opportunity to the public prosecutor for showing cause in writing against such release where the conviction is on an offence punishable with death or imprisonment for life or for a term not less than ten years?

    Atul Tripathi Vs. State of U.P. & Anr.

    Posted at  Tuesday, July 22, 2014  |  in  Suspension of Sentence  |  Read More»

    Indian Penal Code (45 of 1860) - Sections 147, 148, 149 r/w 302, 120B - Criminal Law (Amendment) Act, 2013 - Section 7 - Code of Criminal Procedure, 1973 - Section 389 -Suspension of sentence pending the appeal; release of appellant on bail - Whether the appellate court, while considering the release of the convict on bail, should give an opportunity to the public prosecutor for showing cause in writing against such release where the conviction is on an offence punishable with death or imprisonment for life or for a term not less than ten years?

    Constitution of India, 1950 - Art. 32 read with Art.14, 21 & 22 - Indian Penal Code, 1860 - Section 147, 148, 149, 323, 427, 504, 379 and 386 - Arms Act Section 27 - Unlawful custody - Writ of Habeas Corpus - Petitioner is an accused facing prosecution for offences, cognizance whereof has already been taken by the competent Court. He is presently in custody pursuant to the order of remand made by the said Court. A writ of Habeas Corpus is, in the circumstances, totally mis-placed.

    Saurabh Kumar Vs. Jailor, Koneila Jail & Anr.

    Posted at  Tuesday, July 22, 2014  |  in  Habeas Corpus  |  Read More»

    Constitution of India, 1950 - Art. 32 read with Art.14, 21 & 22 - Indian Penal Code, 1860 - Section 147, 148, 149, 323, 427, 504, 379 and 386 - Arms Act Section 27 - Unlawful custody - Writ of Habeas Corpus - Petitioner is an accused facing prosecution for offences, cognizance whereof has already been taken by the competent Court. He is presently in custody pursuant to the order of remand made by the said Court. A writ of Habeas Corpus is, in the circumstances, totally mis-placed.

    Monday, 21 July 2014

    Indian Penal Code, 1860 - Section 325 and 341 - Since the accused and the victim have entered into a compromise, it would be in the interest of both sides to reduce the sentence awarded to the accused to the sentence already undergone.

    Sathiyamoorthy And Ors. Vs. State Represented By The Inspector of Police, Madurai

    Posted at  Monday, July 21, 2014  |  in  Compoundable  |  Read More»

    Indian Penal Code, 1860 - Section 325 and 341 - Since the accused and the victim have entered into a compromise, it would be in the interest of both sides to reduce the sentence awarded to the accused to the sentence already undergone.

    Indian Penal Code, 1860 - Section 498A - Dowry Prohibition Act, 1961 - Section 4 - A compoundable offence can be compounded in view of a compromise, if the Court finds it proper to do so even after conviction if the appeal is pending.

    Manohar Singh Vs. State of Madhya Pradesh & Anr.

    Posted at  Monday, July 21, 2014  |  in  Dowry  |  Read More»

    Indian Penal Code, 1860 - Section 498A - Dowry Prohibition Act, 1961 - Section 4 - A compoundable offence can be compounded in view of a compromise, if the Court finds it proper to do so even after conviction if the appeal is pending.

    Indian Penal Code, 1860 - Sections 341, 323, 324, 504 and 307 r/w 34 - Code of Criminal Procedure, 1973 - Section 231(2) r/w 311 - Whether Supreme Court can compound the offences under Sections 326 and 307 of the IPC which are non-compoundable?

    Yogendra Yadav & Ors. Vs. The State of Jharkhand & Anr.

    Posted at  Monday, July 21, 2014  |  in  Compounding  |  Read More»

    Indian Penal Code, 1860 - Sections 341, 323, 324, 504 and 307 r/w 34 - Code of Criminal Procedure, 1973 - Section 231(2) r/w 311 - Whether Supreme Court can compound the offences under Sections 326 and 307 of the IPC which are non-compoundable?

    Wednesday, 16 July 2014

    Negotiable Instruments Act, 1881 - Section 138 - Code of Criminal Procedure, 1973 - Section 482 - Indian Evidence Act, 1872 - Section 114 - General Clauses Act, 1897 - Section 27 - Service of notice - Meaning of service by post - Section 114 of the Evidence Act enables the Court to presume that in the common course of natural events, the communication would have been delivered at the address of the addressee. Section 27 of the GC Act gives rise to a presumption that service of notice has been effected when it is sent to the correct address by registered post. It is not necessary to aver in the complaint that in spite of the return of the notice unserved, it is deemed to have been served or that the addressee is deemed to have knowledge of the notice. Unless and until the contrary is proved by the addressee, service of notice is deemed to have been effected at the time at which the letter would have been delivered in the ordinary course of business. The High Court clearly erred in quashing the complaint on the ground that there was no recital in the complaint that the notice under Section 138 of the NI Act was served upon the accused. The High Court also erred in quashing the complaint on the ground that there was no proof either that the notice was served or it was returned unserved/unclaimed. Service of notice is a matter of evidence and proof and it would be premature at the stage of issuance of process to move the High Court for quashing of the proceeding under Section 482 of the Cr.P.C.

    M/s. Ajeet Seeds Ltd. Vs. K. Gopala Krishnaiah

    Posted at  Wednesday, July 16, 2014  |  in  Cheque  |  Read More»

    Negotiable Instruments Act, 1881 - Section 138 - Code of Criminal Procedure, 1973 - Section 482 - Indian Evidence Act, 1872 - Section 114 - General Clauses Act, 1897 - Section 27 - Service of notice - Meaning of service by post - Section 114 of the Evidence Act enables the Court to presume that in the common course of natural events, the communication would have been delivered at the address of the addressee. Section 27 of the GC Act gives rise to a presumption that service of notice has been effected when it is sent to the correct address by registered post. It is not necessary to aver in the complaint that in spite of the return of the notice unserved, it is deemed to have been served or that the addressee is deemed to have knowledge of the notice. Unless and until the contrary is proved by the addressee, service of notice is deemed to have been effected at the time at which the letter would have been delivered in the ordinary course of business. The High Court clearly erred in quashing the complaint on the ground that there was no recital in the complaint that the notice under Section 138 of the NI Act was served upon the accused. The High Court also erred in quashing the complaint on the ground that there was no proof either that the notice was served or it was returned unserved/unclaimed. Service of notice is a matter of evidence and proof and it would be premature at the stage of issuance of process to move the High Court for quashing of the proceeding under Section 482 of the Cr.P.C.

    Tuesday, 15 July 2014

    General principles regarding powers of appellate Court while dealing with an appeal against an order of acquittal.

    C.K. Dasegowda & Ors. Vs. State of Karnataka

    Posted at  Tuesday, July 15, 2014  |  in  Acquittal  |  Read More»

    General principles regarding powers of appellate Court while dealing with an appeal against an order of acquittal.

    Code of Criminal Procedure, 1973 - Section 125 - Family Court Act, 1984 - Section 7 - Maintenance - Delay in disposal of the proceeding - Grant of maintenance from the date of application - most of the time the husband had taken adjournments and some times the court dealt with the matter showing total laxity - wife sustained herself as far as she could in that state for a period of nine years - grant of maintenance from the date of application and by so granting the High Court has not committed any legal infirmity - concur with the order of the High Court.

    Bhuwan Mohan Singh Vs. Meena & Ors

    Posted at  Tuesday, July 15, 2014  |  in  Maintenance  |  Read More»

    Code of Criminal Procedure, 1973 - Section 125 - Family Court Act, 1984 - Section 7 - Maintenance - Delay in disposal of the proceeding - Grant of maintenance from the date of application - most of the time the husband had taken adjournments and some times the court dealt with the matter showing total laxity - wife sustained herself as far as she could in that state for a period of nine years - grant of maintenance from the date of application and by so granting the High Court has not committed any legal infirmity - concur with the order of the High Court.

    Wednesday, 9 July 2014

    Bihar Reorganisation Act, 2000 - Section 76 and 89 - Prevention of Corruption Act, 1988 - Section 13(1)(d) read with Section 13(2) - Indian Penal Code, 1860 - Section 420 / 465 / 466 / 467 / 471 / 477(A)/201 /109 / 120B - Power of Central Government to give directions - Personnel related issues incident to bifurcation of States - Transfer of pending proceedings - Vigilance inquiry which was initiated against the 1st respondent by the Vigilance Department of the State of Bihar prior to reorganisation of the State i.e. 15th November, 2000, should have been transferred to the Vigilance Department of the State of Jharkhand, as the 1st respondent was allocated cadre of Jharkhand and was posted under the Government of Jharkhand - Therefore in view of the fact that he has been allocated to the IAS cadre of the Jharkhand State since 15th November, 2000, i.e., the date on which Jharkhand State came into existence, the Vigilance Department, Government of Bihar ceases to have a jurisdiction to investigate against the 1st respondent.

    State of Bihar & Ors. Vs. Ashok Kumar Singh & Ors.

    Posted at  Wednesday, July 09, 2014  |  in  Bifurcation  |  Read More»

    Bihar Reorganisation Act, 2000 - Section 76 and 89 - Prevention of Corruption Act, 1988 - Section 13(1)(d) read with Section 13(2) - Indian Penal Code, 1860 - Section 420 / 465 / 466 / 467 / 471 / 477(A)/201 /109 / 120B - Power of Central Government to give directions - Personnel related issues incident to bifurcation of States - Transfer of pending proceedings - Vigilance inquiry which was initiated against the 1st respondent by the Vigilance Department of the State of Bihar prior to reorganisation of the State i.e. 15th November, 2000, should have been transferred to the Vigilance Department of the State of Jharkhand, as the 1st respondent was allocated cadre of Jharkhand and was posted under the Government of Jharkhand - Therefore in view of the fact that he has been allocated to the IAS cadre of the Jharkhand State since 15th November, 2000, i.e., the date on which Jharkhand State came into existence, the Vigilance Department, Government of Bihar ceases to have a jurisdiction to investigate against the 1st respondent.

    Tuesday, 8 July 2014

    Indian Penal Code, 1860 - Section 302 - Murder - No eye witness of the occurrence - Case was based on the circumstantial evidence - the accused was unhappy with his wife and this resulted in quarrels between them off and on - quarrel took place even in the evening preceding the date of the death - narration of chain of circumstantial evidence relied upon by the prosecution lead to the inference that the accused is guilty for the offence of murder - all the circumstances taken together lead to only hypothesis of the guilt of the accused - chain of circumstantial evidence relied upon by the prosecution is complete to hold the accused guilty of the offence punishable under Section 302 IPC - accused was rightly convicted and sentenced under Section 302 IPC for life imprisonment by the learned Sessions Judge as affirmed by the High Court.

    Khim Singh Vs. State of Uttarakhand

    Posted at  Tuesday, July 08, 2014  |  in  Murder  |  Read More»

    Indian Penal Code, 1860 - Section 302 - Murder - No eye witness of the occurrence - Case was based on the circumstantial evidence - the accused was unhappy with his wife and this resulted in quarrels between them off and on - quarrel took place even in the evening preceding the date of the death - narration of chain of circumstantial evidence relied upon by the prosecution lead to the inference that the accused is guilty for the offence of murder - all the circumstances taken together lead to only hypothesis of the guilt of the accused - chain of circumstantial evidence relied upon by the prosecution is complete to hold the accused guilty of the offence punishable under Section 302 IPC - accused was rightly convicted and sentenced under Section 302 IPC for life imprisonment by the learned Sessions Judge as affirmed by the High Court.

    Dowry Death In dowry death cases direct evidence may not be available. Such cases may be proved by circumstantial evidence. 

    Indian Evidence Act, 1872 - Section 113-A and B - Indian Penal Code, 1860 - Section 498-A, Section 304-B and Section 306 all read with Section 34 - Dowry Death - Demand of dowry for purchasing Hero Honda Motorcycle and other house hold articles - The harassment of the deceased was with a view to coerce her to convince her parents to meet demand of dowry. The said willful conduct has driven the deceased to commit the suicide or not is a matter of doubt, in absence of specific evidence. Therefore, in the light of Clause (b) of Section 498-A IPC, all the accused guilty for the offence under Section 498-A IPC. Prosecution failed to prove that the deceased committed suicide. The accused are, therefore, acquitted for the offence under Section 306 r/w 34 IPC. The prosecution on the basis of evidence has successfully proved that the deceased died within 7 years of her marriage; the death of the deceased is caused by burns i.e. nor under normal circumstances. It has also been proved that soon before her death, during her pregnancy the deceased was subjected to cruelty and harassment by her husband and relatives of accused in connection with demand of dowry. Therefore, the prosecution successfully proved with beyond reasonable doubt that accused are guilty for the offence under Section 304-B, r/w 34 IPC.

    State of Maharashtra Vs. Rajendra & Ors.

    Posted at  Tuesday, July 08, 2014  |  in  Dowry  |  Read More»

    Dowry Death In dowry death cases direct evidence may not be available. Such cases may be proved by circumstantial evidence. 

    Indian Evidence Act, 1872 - Section 113-A and B - Indian Penal Code, 1860 - Section 498-A, Section 304-B and Section 306 all read with Section 34 - Dowry Death - Demand of dowry for purchasing Hero Honda Motorcycle and other house hold articles - The harassment of the deceased was with a view to coerce her to convince her parents to meet demand of dowry. The said willful conduct has driven the deceased to commit the suicide or not is a matter of doubt, in absence of specific evidence. Therefore, in the light of Clause (b) of Section 498-A IPC, all the accused guilty for the offence under Section 498-A IPC. Prosecution failed to prove that the deceased committed suicide. The accused are, therefore, acquitted for the offence under Section 306 r/w 34 IPC. The prosecution on the basis of evidence has successfully proved that the deceased died within 7 years of her marriage; the death of the deceased is caused by burns i.e. nor under normal circumstances. It has also been proved that soon before her death, during her pregnancy the deceased was subjected to cruelty and harassment by her husband and relatives of accused in connection with demand of dowry. Therefore, the prosecution successfully proved with beyond reasonable doubt that accused are guilty for the offence under Section 304-B, r/w 34 IPC.

    Monday, 7 July 2014

    Muslim Law - Fatwa does not have a force of law and, therefore, cannot be enforced by any process using coercive method. Any person trying to enforce that by any method shall be illegal and has to be dealt with in accordance with law. 

    Vishwa Lochan Madan Vs. Union of India & Ors.

    Posted at  Monday, July 07, 2014  |  in  Muslim  |  Read More»

    Muslim Law - Fatwa does not have a force of law and, therefore, cannot be enforced by any process using coercive method. Any person trying to enforce that by any method shall be illegal and has to be dealt with in accordance with law. 

    State Bank of Patiala Voluntary Retirement Scheme, 2000 - State Bank of Patiala (Employees) Pension Regulations, 1995 - Regulation 18 Pension on Voluntary Retirement - If broken period is more than six months, it shall be treated as one year - Employees completed more than 19 years and 6 months of service in the Bank are to be treated to have completed 20 years of service and entitled to the benefit of Pension on Voluntary Retirement.

    State Bank of Patiala Vs. Pritam Singh Bedi & Ors.

    Posted at  Monday, July 07, 2014  |  in  Pension  |  Read More»

    State Bank of Patiala Voluntary Retirement Scheme, 2000 - State Bank of Patiala (Employees) Pension Regulations, 1995 - Regulation 18 Pension on Voluntary Retirement - If broken period is more than six months, it shall be treated as one year - Employees completed more than 19 years and 6 months of service in the Bank are to be treated to have completed 20 years of service and entitled to the benefit of Pension on Voluntary Retirement.

    Consumer Protection Act, 1986 – Section 17(1) and 19 - Complaints - Appeals - “predeposit” - waiver of - Interim order of stay - Condition of pre-deposit is there to avoid frivolous appeals - If the National Commission after hearing the appeal of the parties in its discretion wants to stay the amount awarded, it is open to the National Commission to pass an appropriate interim order including conditional order of stay - Entertainment of an appeal and stay of proceeding pursuant to order impugned in the appeal stands at different footings, at two different stages - Pre-deposit has no nexus with merit of the appeal and grant of stay depends on prima facie case; balance of convenience and irreparable loss of party seeking such stay.
    Held:- The second proviso to Section 19 of the Act mandates pre-deposit for consideration of an appeal before the National Commission. It requires 50% of the amount in terms of an order of the State Commission or 35,000/- whichever is less for entertainment of an appeal by the National Commission. Unless the appellant has deposited the predeposit amount, the appeal cannot be entertained by the National Commission. A pre-deposit condition to deposit 50% of the amount in terms of the order of the State Commission or Rs.35,000/- being condition precedent for entertaining appeal, it has no nexus with the order of stay, as such an order may or may not be passed by the National Commission. Condition of pre-deposit is there to avoid frivolous appeals. It is not the case of any of the appellants that the Consumer Forum including State and National Commissions has no power to pass interim order of stay. If the National Commission after hearing the appeal of the parties in its discretion wants to stay the amount awarded, it is open to the National Commission to pass an appropriate interim order including conditional order of stay. Entertainment of an appeal and stay of proceeding pursuant to order impugned in the appeal stands at different footings, at two different stages.  One (pre-deposit) has no nexus with merit of the appeal and the other (grant of stay) depends on prima facie case; balance of convenience and irreparable loss of party seeking such stay. In view of the finding recorded above, the interference with the impugned order dated 15th May, 2012 passed by the National Commission is not called for. In absence of any merit, the appeals are accordingly dismissed. No costs.
    • Dr.(Mrs.) K. Kathuria v. National Consumer Disputes Redressal Forum, AIR 2007 Delhi 135
    • State of Haryana v. Maruti Udyog Ltd. and others, (2000) 7 SCC 348

    M/s Shreenath Corp. & Ors. Vs. Consumer Education & Research Society & Ors.

    Posted at  Monday, July 07, 2014  |  in  Consumer  |  Read More»

    Consumer Protection Act, 1986 – Section 17(1) and 19 - Complaints - Appeals - “predeposit” - waiver of - Interim order of stay - Condition of pre-deposit is there to avoid frivolous appeals - If the National Commission after hearing the appeal of the parties in its discretion wants to stay the amount awarded, it is open to the National Commission to pass an appropriate interim order including conditional order of stay - Entertainment of an appeal and stay of proceeding pursuant to order impugned in the appeal stands at different footings, at two different stages - Pre-deposit has no nexus with merit of the appeal and grant of stay depends on prima facie case; balance of convenience and irreparable loss of party seeking such stay.
    Held:- The second proviso to Section 19 of the Act mandates pre-deposit for consideration of an appeal before the National Commission. It requires 50% of the amount in terms of an order of the State Commission or 35,000/- whichever is less for entertainment of an appeal by the National Commission. Unless the appellant has deposited the predeposit amount, the appeal cannot be entertained by the National Commission. A pre-deposit condition to deposit 50% of the amount in terms of the order of the State Commission or Rs.35,000/- being condition precedent for entertaining appeal, it has no nexus with the order of stay, as such an order may or may not be passed by the National Commission. Condition of pre-deposit is there to avoid frivolous appeals. It is not the case of any of the appellants that the Consumer Forum including State and National Commissions has no power to pass interim order of stay. If the National Commission after hearing the appeal of the parties in its discretion wants to stay the amount awarded, it is open to the National Commission to pass an appropriate interim order including conditional order of stay. Entertainment of an appeal and stay of proceeding pursuant to order impugned in the appeal stands at different footings, at two different stages.  One (pre-deposit) has no nexus with merit of the appeal and the other (grant of stay) depends on prima facie case; balance of convenience and irreparable loss of party seeking such stay. In view of the finding recorded above, the interference with the impugned order dated 15th May, 2012 passed by the National Commission is not called for. In absence of any merit, the appeals are accordingly dismissed. No costs.
    • Dr.(Mrs.) K. Kathuria v. National Consumer Disputes Redressal Forum, AIR 2007 Delhi 135
    • State of Haryana v. Maruti Udyog Ltd. and others, (2000) 7 SCC 348

    Criminal Procedure Code, 1973 - Chapter XVIII - Section 209, 226, 227, 228 - Relative scope of Sections 227 and 228 - Discharge  - Framing of charge - Trial before a Court of Session - When the accused person is brought before the Court in pursuance of a commitment of the case u/s 209, the prosecutor is required to open his case by describing the charge brought against the accused and stating by what evidence he proposes to prove his guilt of the accused - From sub Section (1) of Section 228, it is clear that after such consideration and hearing, as given under Section 227, if Judge forms an opinion that there is a ground for presuming that the accused has committed an offence, Judge may frame the charge(s). From Section 228 it is clear that no separate hearing is required to be given for framing the charge if the accused is not discharged upon consideration of the record of the case and documents and after hearing the submissions under Section 227.
    Amit Kapoor v. Ramesh Chander and another, (2012) 9 SCC 460
    Held, In this case, it is not alleged that the Sessions Judge has not followed Sections 226 and 227 Cr.P.C before framing the charge. Further, it is not the case of the appellant that the court has not given him hearing at the stage of discharge u/s 227 Cr.P.C. For framing of charge u/s 228, the judge is not required to record detail reasons as to why such charge is framed. On perusal of record and hearing the parties at the stage of discharge u/s 227 Cr.P.C. if the Judge is of opinion that there is ground for presuming that the accused has committed an offence, he is competent to frame charge for such offence even if not mentioned in the charge sheet. We find no merit in this appeal. The appeal is accordingly dismissed.  

    Dinesh Tiwari Vs. State Of Uttar Pradesh & Anr.

    Posted at  Monday, July 07, 2014  |  in  Framing of Charge  |  Read More»

    Criminal Procedure Code, 1973 - Chapter XVIII - Section 209, 226, 227, 228 - Relative scope of Sections 227 and 228 - Discharge  - Framing of charge - Trial before a Court of Session - When the accused person is brought before the Court in pursuance of a commitment of the case u/s 209, the prosecutor is required to open his case by describing the charge brought against the accused and stating by what evidence he proposes to prove his guilt of the accused - From sub Section (1) of Section 228, it is clear that after such consideration and hearing, as given under Section 227, if Judge forms an opinion that there is a ground for presuming that the accused has committed an offence, Judge may frame the charge(s). From Section 228 it is clear that no separate hearing is required to be given for framing the charge if the accused is not discharged upon consideration of the record of the case and documents and after hearing the submissions under Section 227.
    Amit Kapoor v. Ramesh Chander and another, (2012) 9 SCC 460
    Held, In this case, it is not alleged that the Sessions Judge has not followed Sections 226 and 227 Cr.P.C before framing the charge. Further, it is not the case of the appellant that the court has not given him hearing at the stage of discharge u/s 227 Cr.P.C. For framing of charge u/s 228, the judge is not required to record detail reasons as to why such charge is framed. On perusal of record and hearing the parties at the stage of discharge u/s 227 Cr.P.C. if the Judge is of opinion that there is ground for presuming that the accused has committed an offence, he is competent to frame charge for such offence even if not mentioned in the charge sheet. We find no merit in this appeal. The appeal is accordingly dismissed.  

    Indian Penal Code, 1860 - Sections 409, 420, 467, 468, 471, 34 and 120-B - Code of Criminal Procedure, 1973 - Section 197 - Prosecution of Judges and public servants.

    Chandan Kumar Basu Vs. State of Bihar

    Posted at  Monday, July 07, 2014  |  in  Sanction  |  Read More»

    Indian Penal Code, 1860 - Sections 409, 420, 467, 468, 471, 34 and 120-B - Code of Criminal Procedure, 1973 - Section 197 - Prosecution of Judges and public servants.

    Service Law - Marwar Gramin Bank (Staff) Service Regulations, 1980 - Absence from duty - Appeal preferred against the order of the removal was dismissed by the Appellate Authority - Orders of the Disciplinary Authority and Appellate Authority were challenged before the High Court  on the grounds that the entire inquiry stood vitiated having conducted in violation of principles of natural justice - Single Judge allowed the writ petition, quashed the order of removal and directed to reinstate in service with all consequential benefits - Judgment passed by the Single Judge was challenged by the Bank in a writ appeal - Division Bench though accepted that the Inquiry stood vitiated but set aside the order of reinstatement - Hence instant appeal - Whether the order of Division Bench was sustainable - Held, Division Bench was wrong in setting aside the order of reinstatement - The order of termination being quashed by the High Court, in absence of any observation and grounds to refuse the reinstatement, the appellant automatically stood reinstated - Without reinstatement in service, the question of further inquiry does not arise - There was no occasion for the Division Bench of the High Court to direct further inquiry, without reinstatement of appellant - Order passed by the Division Bench of the High Court cannot be upheld - Appeal is allowed.

    Service Law - Marwar Gramin Bank (Staff) Service Regulations, 1980 - Absence from duty - Medical Certificate - No prior permission was obtained from the competent authority - Medical reports were submitted after about 24 days - No allegation that unauthorized absence from duty was willful and deliberate - It is neither case of the Disciplinary Authority nor the Inquiry Officer that the medical reports were forged or fabricated or obtained for any consideration though he was not ill during the said period - In absence of such evidence and finding, it was not open to the Inquiry Officer or the Disciplinary Authority to disbelieve the medical certificates issued by the Doctors without any valid reason and on the ground of 24 days delay.

    Chhel Singh Vs. M.G.B.Gramin Bank Pali & Ors.

    Posted at  Monday, July 07, 2014  |  in  Service  |  Read More»

    Service Law - Marwar Gramin Bank (Staff) Service Regulations, 1980 - Absence from duty - Appeal preferred against the order of the removal was dismissed by the Appellate Authority - Orders of the Disciplinary Authority and Appellate Authority were challenged before the High Court  on the grounds that the entire inquiry stood vitiated having conducted in violation of principles of natural justice - Single Judge allowed the writ petition, quashed the order of removal and directed to reinstate in service with all consequential benefits - Judgment passed by the Single Judge was challenged by the Bank in a writ appeal - Division Bench though accepted that the Inquiry stood vitiated but set aside the order of reinstatement - Hence instant appeal - Whether the order of Division Bench was sustainable - Held, Division Bench was wrong in setting aside the order of reinstatement - The order of termination being quashed by the High Court, in absence of any observation and grounds to refuse the reinstatement, the appellant automatically stood reinstated - Without reinstatement in service, the question of further inquiry does not arise - There was no occasion for the Division Bench of the High Court to direct further inquiry, without reinstatement of appellant - Order passed by the Division Bench of the High Court cannot be upheld - Appeal is allowed.

    Service Law - Marwar Gramin Bank (Staff) Service Regulations, 1980 - Absence from duty - Medical Certificate - No prior permission was obtained from the competent authority - Medical reports were submitted after about 24 days - No allegation that unauthorized absence from duty was willful and deliberate - It is neither case of the Disciplinary Authority nor the Inquiry Officer that the medical reports were forged or fabricated or obtained for any consideration though he was not ill during the said period - In absence of such evidence and finding, it was not open to the Inquiry Officer or the Disciplinary Authority to disbelieve the medical certificates issued by the Doctors without any valid reason and on the ground of 24 days delay.

    Negotiable Instruments Act, 1881 - Section 138 read with Section 141 - Proceedings initiated against the company and its Managing Director - In the event of the company being let off, the same cannot continue against the Managing Director who is only vicariously liable.

    Anil Gupta Vs. Star India Pvt. Ltd. & Anr.

    Posted at  Monday, July 07, 2014  |  in  Cheque  |  Read More»

    Negotiable Instruments Act, 1881 - Section 138 read with Section 141 - Proceedings initiated against the company and its Managing Director - In the event of the company being let off, the same cannot continue against the Managing Director who is only vicariously liable.

    Friday, 4 July 2014

    Indian Penal Code, 1860 - Section 302, 307, 450, 394 & 397 - Whether death sentence awarded is excessive, disproportionate on the facts and circumstance of the case, i.e. whether the present case can be termed to be a rarest of the rare case - Accused is an educated person, he was about 26 years old at the time of committing the offence. The accused was a tutor in the family of the decease. He was in acquaintance with the deceased as well as PW-3 and PW-4. There is nothing specific to suggest the motive for committing the crime except the articles and cash taken away by the accused. It is not the case of the prosecution that the accused cannot be reformed or that he is a social menace. Apart from the incident in question there is no criminal antecedent - It is true that the accused has committed a heinous crime, but it cannot be held with certainty that this case falls in the “rarest of the rare category”. On appreciation of evidence on record and keeping in mind the facts and circumstances of the case, the sentence of death penalty would be extensive and unduly harsh.

    Santosh Kumar Singh Vs. State of M.P.

    Posted at  Friday, July 04, 2014  |  in  Murder  |  Read More»

    Indian Penal Code, 1860 - Section 302, 307, 450, 394 & 397 - Whether death sentence awarded is excessive, disproportionate on the facts and circumstance of the case, i.e. whether the present case can be termed to be a rarest of the rare case - Accused is an educated person, he was about 26 years old at the time of committing the offence. The accused was a tutor in the family of the decease. He was in acquaintance with the deceased as well as PW-3 and PW-4. There is nothing specific to suggest the motive for committing the crime except the articles and cash taken away by the accused. It is not the case of the prosecution that the accused cannot be reformed or that he is a social menace. Apart from the incident in question there is no criminal antecedent - It is true that the accused has committed a heinous crime, but it cannot be held with certainty that this case falls in the “rarest of the rare category”. On appreciation of evidence on record and keeping in mind the facts and circumstances of the case, the sentence of death penalty would be extensive and unduly harsh.

    Thursday, 3 July 2014

    Indian Penal Code, 1860 - Sections 447, 326 read with Section 34 - Explosives Substances Act, 1908 - Sections 3 and 4 - Code of Criminal Procedure, 1973 - Section 311 - Recall the Investigating Officer - Once recalled does not prevent further recall if the evidence appears to the court to be essential to the just decision of the case - Court can exercise power of re-summoning any witness even if it has exercised the said power earlier. 

    Indian Penal Code, 1860 - Sections 447, 326 read with Section 34 - Explosives Substances Act, 1908 - Sections 3 and 4 - Code of Criminal Procedure, 1973 - Section 311 - Recall the Investigating Officer - It should not cause prejudice to the accused. It should not permit the prosecution to fill-up the lacuna. Whether recall of a witness is for filling-up of a lacuna or it is for just decision of a case depends on facts and circumstances of each case. Cause of justice must not be allowed to suffer because of the oversight of the prosecution. 

    Held :- Section 311 of the Code is one of many such provisions of the Code which strengthen the arms of a court in its effort to ferret out the truth by procedure sanctioned by law. It is couched in very wide terms. It empowers the court at any stage of any inquiry, trial or other proceedings under the Code to summon any person as a witness or examine any person in attendance, though not summoned as witness or recall and re-examine already examined witness. The second part of the Section uses the word ‘shall’. It says that the court shall summon and examine or recall or re-examine any such person if his evidence appears to it to be essential to the just decision of the case. The words ‘essential to the just decision of the case’ are the key words. The court must form an opinion that for the just decision of the case recall or re- examination of the witness is necessary. Since the power is wide it’s exercise has to be done with circumspection. It is trite that wider the power greater is the responsibility on the courts which exercise it. The exercise of this power cannot be untrammeled and arbitrary but must be only guided by the object of arriving at a just decision of the case. It should not cause prejudice to the accused. It should not permit the prosecution to fill-up the lacuna. Whether recall of a witness is for filling-up of a lacuna or it is for just decision of a case depends on facts and circumstances of each case. In all cases it is likely to be argued that the prosecution is trying to fill-up a lacuna because the line of demarcation is thin. It is for the court to consider all the circumstances and decide whether the prayer for recall is genuine.

    Mannan Sk & Ors. Vs. State of West Bengal & Anr.

    Posted at  Thursday, July 03, 2014  |  in    |  Read More»

    Indian Penal Code, 1860 - Sections 447, 326 read with Section 34 - Explosives Substances Act, 1908 - Sections 3 and 4 - Code of Criminal Procedure, 1973 - Section 311 - Recall the Investigating Officer - Once recalled does not prevent further recall if the evidence appears to the court to be essential to the just decision of the case - Court can exercise power of re-summoning any witness even if it has exercised the said power earlier. 

    Indian Penal Code, 1860 - Sections 447, 326 read with Section 34 - Explosives Substances Act, 1908 - Sections 3 and 4 - Code of Criminal Procedure, 1973 - Section 311 - Recall the Investigating Officer - It should not cause prejudice to the accused. It should not permit the prosecution to fill-up the lacuna. Whether recall of a witness is for filling-up of a lacuna or it is for just decision of a case depends on facts and circumstances of each case. Cause of justice must not be allowed to suffer because of the oversight of the prosecution. 

    Held :- Section 311 of the Code is one of many such provisions of the Code which strengthen the arms of a court in its effort to ferret out the truth by procedure sanctioned by law. It is couched in very wide terms. It empowers the court at any stage of any inquiry, trial or other proceedings under the Code to summon any person as a witness or examine any person in attendance, though not summoned as witness or recall and re-examine already examined witness. The second part of the Section uses the word ‘shall’. It says that the court shall summon and examine or recall or re-examine any such person if his evidence appears to it to be essential to the just decision of the case. The words ‘essential to the just decision of the case’ are the key words. The court must form an opinion that for the just decision of the case recall or re- examination of the witness is necessary. Since the power is wide it’s exercise has to be done with circumspection. It is trite that wider the power greater is the responsibility on the courts which exercise it. The exercise of this power cannot be untrammeled and arbitrary but must be only guided by the object of arriving at a just decision of the case. It should not cause prejudice to the accused. It should not permit the prosecution to fill-up the lacuna. Whether recall of a witness is for filling-up of a lacuna or it is for just decision of a case depends on facts and circumstances of each case. In all cases it is likely to be argued that the prosecution is trying to fill-up a lacuna because the line of demarcation is thin. It is for the court to consider all the circumstances and decide whether the prayer for recall is genuine.

    Wednesday, 2 July 2014

    Employees’ Provident Funds and Miscellaneous Provisions Act, 1952 - Sections 1(3), 2(e), 7A, 7Q, 8, 14B and 17B - Employees’ State Insurance Act, 1948 - Section 85B - Power to recover damages - Imposition of ‘damages’ - Failure to deposit penal damages within the stipulated period - “employer” - Determination of moneys due from employers - Interest payable by the employer - Mode of recovery of moneys due from employers - Liability in case of transfer of establishment
    • Darjeeling Dooars Plantation Ltd. vs Regional Provident Fund Commissioner, 1995 ILLJ 939 Cal.
    • Dalgaon Agro Industries Ltd. vs Union of India, (2006) 1 CALLT 32 (HC)
    • The Regional Provident Fund Commissioner, Mangalore vs Karnataka Forest Plantations Corporation Ltd., Bangalore, 2000 (1) LLJ 1134
    • Sayaji Mills Ltd. vs. Regional Provident Fund Commissioner, 1984 (Supp) SCC 610
    • Employees’ State Insurance Corporation vs HMT Ltd. (2008) 3 SCC 35
    • Organo Chemical Industries vs Union of India (1979) 4 SCC 573
    • Babubhai & Co. vs. State of Gujarat (1985) 2 SCC 732

    Mcleod Russel India Limited Vs. Reg. Provident Fund Commissioner, Jalpaiguri & Ors.

    Posted at  Wednesday, July 02, 2014  |  in  Provident Fund  |  Read More»

    Employees’ Provident Funds and Miscellaneous Provisions Act, 1952 - Sections 1(3), 2(e), 7A, 7Q, 8, 14B and 17B - Employees’ State Insurance Act, 1948 - Section 85B - Power to recover damages - Imposition of ‘damages’ - Failure to deposit penal damages within the stipulated period - “employer” - Determination of moneys due from employers - Interest payable by the employer - Mode of recovery of moneys due from employers - Liability in case of transfer of establishment
    • Darjeeling Dooars Plantation Ltd. vs Regional Provident Fund Commissioner, 1995 ILLJ 939 Cal.
    • Dalgaon Agro Industries Ltd. vs Union of India, (2006) 1 CALLT 32 (HC)
    • The Regional Provident Fund Commissioner, Mangalore vs Karnataka Forest Plantations Corporation Ltd., Bangalore, 2000 (1) LLJ 1134
    • Sayaji Mills Ltd. vs. Regional Provident Fund Commissioner, 1984 (Supp) SCC 610
    • Employees’ State Insurance Corporation vs HMT Ltd. (2008) 3 SCC 35
    • Organo Chemical Industries vs Union of India (1979) 4 SCC 573
    • Babubhai & Co. vs. State of Gujarat (1985) 2 SCC 732

    Indian Penal Code, 1860 - Section 302 - Murder - Whether the High Court is justified in interfering with the order of acquittal by reversing the judgment of the Trial Court - If two views are reasonably possible from the very same evidence, the Appellate court on re-appreciation of the same evidence cannot impose its own view - The Appellate Court may re-appreciate the evidence when it is satisfied that the Trial Court has committed an error and has failed to consider the credibility and trustworthiness of the account given by the eyewitnesses - The evidence on record has to be read as a whole and it is not proper to reject one or other evidence on the ground of certain contradictions and omissions which do not go to the roots of the case - If the testimony of the eye-witnesses are found trustworthy and remained unchanged, ignorance of such testimony can be held to be perverse.

    Held:- Thus from the nature of incised injuries found on the scalp, it is clear that death of Mahantappa was due to injury to the brain as a result of wounds caused to the head probably by multiple hits by heavy sharp edged weapon and the same is marked as Ex.P-17. There is no dispute regarding the cause of death that the deceased met with homicidal death. Considering the facts and circumstances of the case and on careful examination of the act of the accused as proved by testimony of witnesses, we are of the opinion that the said act of accused which resulted in death of Mahantappa neither comes within the ambit of the exceptions under Section 300 IPC nor within the scope of Section 304 IPC. It is not an act done under grave and sudden provocation or in good faith or not an act, which he in good faith believes to be lawful and necessary for due discharge in his duty or not an act committed without premeditation in sudden fight. Therefore, the Appellate Court rightly held that the act of the accused No.1 thus falls within the ingredients of Section 300 IPC punishable under Section 302 IPC. We find no ground to interfere with the impugned judgment. In absence of any merit, the appeal is dismissed.
    • Hem Raj and another vs. State of Punjab, (2003) 12 SCC 241
    • T. Subramanian vs. State of Tamil Nadu, (2006) 1 SCC 401
    • Haji Khan vs. State of U.P., (2005) 13 SCC 353

    Pundappa Yankappa Pujari Vs. State of Karnataka

    Posted at  Wednesday, July 02, 2014  |  in  Murder  |  Read More»

    Indian Penal Code, 1860 - Section 302 - Murder - Whether the High Court is justified in interfering with the order of acquittal by reversing the judgment of the Trial Court - If two views are reasonably possible from the very same evidence, the Appellate court on re-appreciation of the same evidence cannot impose its own view - The Appellate Court may re-appreciate the evidence when it is satisfied that the Trial Court has committed an error and has failed to consider the credibility and trustworthiness of the account given by the eyewitnesses - The evidence on record has to be read as a whole and it is not proper to reject one or other evidence on the ground of certain contradictions and omissions which do not go to the roots of the case - If the testimony of the eye-witnesses are found trustworthy and remained unchanged, ignorance of such testimony can be held to be perverse.

    Held:- Thus from the nature of incised injuries found on the scalp, it is clear that death of Mahantappa was due to injury to the brain as a result of wounds caused to the head probably by multiple hits by heavy sharp edged weapon and the same is marked as Ex.P-17. There is no dispute regarding the cause of death that the deceased met with homicidal death. Considering the facts and circumstances of the case and on careful examination of the act of the accused as proved by testimony of witnesses, we are of the opinion that the said act of accused which resulted in death of Mahantappa neither comes within the ambit of the exceptions under Section 300 IPC nor within the scope of Section 304 IPC. It is not an act done under grave and sudden provocation or in good faith or not an act, which he in good faith believes to be lawful and necessary for due discharge in his duty or not an act committed without premeditation in sudden fight. Therefore, the Appellate Court rightly held that the act of the accused No.1 thus falls within the ingredients of Section 300 IPC punishable under Section 302 IPC. We find no ground to interfere with the impugned judgment. In absence of any merit, the appeal is dismissed.
    • Hem Raj and another vs. State of Punjab, (2003) 12 SCC 241
    • T. Subramanian vs. State of Tamil Nadu, (2006) 1 SCC 401
    • Haji Khan vs. State of U.P., (2005) 13 SCC 353

    Indian Penal Code, 1860 - Section 498-A - Dowry Prohibition Act, 1961 - Section 4 - Anticipatory bail - Matrimonial Disputes - Crime in India 2012 Statistics - Provisions that are used as weapons rather than shield by disgruntled wives - Simplest way to harass is to get the husband and his relatives arrested under this provision - In a quite number of cases,bed-ridden grand-fathers and grand-mothers of the husbands, their sisters living abroad for decades are arrested.

    Held:- There is phenomenal increase in matrimonial disputes in recent years. The institution of marriage is greatly revered in this country. Section 498-A of the IPC was introduced with avowed object to combat the menace of harassment to a woman at the hands of her husband and his relatives. The fact that Section 498-A is a cognizable and non-bailable offence has lent it a dubious place of pride amongst the provisions that are used as weapons rather than shield by disgruntled wives. The simplest way to harass is to get the husband and his relatives arrested under this provision. In a quite number of cases,bed-ridden grand-fathers and grand-mothers of the husbands, their sisters living abroad for decades are arrested. “Crime in India 2012 Statistics” published by National Crime Records Bureau, Ministry of Home Affairs shows arrest of 1,97,762 persons all over India during the year 2012 for offence under Section 498-A of the IPC, 9.4% more than the year 2011. Nearly a quarter of those arrested under this provision in 2012 were women i.e. 47,951 which depicts that mothers and sisters of the husbands were liberally included in their arrest net. Its share is 6% out of the total persons arrested under the crimes committed under Indian Penal Code. It accounts for 4.5% of total crimes committed under different sections of penal code, more than any other crimes excepting theft and hurt. The rate of charge-sheeting in cases under Section 498A, IPC is as high as 93.6%, while the conviction rate is only 15%, which is lowest across all heads. As many as 3,72,706 cases arepending trial of which on current estimate, nearly 3,17,000 are likely to result in acquittal. 

    Arrest - Power to arrest - The attitude to arrest first and then proceed with the rest is despicable. 

    Held:- Arrest brings humiliation, curtails freedom and cast scars forever. Law makers know it so also the police. There is a battle between the law makers and the police and it seems that police has not learnt its lesson; the lesson implicit and embodied in the Cr.PC. It has not come out of its colonial image despite six decades of independence, it is largely considered as a tool of harassment, oppression and surely not considered a friend of public. The need for caution in exercising the drastic power of arrest has been emphasized time and again by Courts but has not yielded desired result. Power to arrest greatly contributes to its arrogance so also the failure of the Magistracy to check it. Not only this, the power of arrest is one of the lucrative sources of police corruption. The attitude to arrest first and then proceed with the rest is despicable. It has become a handy tool to the police officers who lack sensitivity or act with oblique motive. 

    Arrest - Power of arrest - No arrest should be made only because the offence is non-bailable and cognizable - No arrest can be made in a routine manner on a mere allegation of commission of an offence made against a person - No arrest is made without a reasonable satisfaction reached after some investigation as to the genuineness of the allegation - 

    Held:- Law Commissions, Police Commissions and this Court in a large number of judgments emphasized the need to maintain a balance between individual liberty and societal order while exercising the power of arrest. Police officers make arrest as they believe that they possess the power to do so. As the arrest curtails freedom, brings humiliation and casts scars forever, we feel differently. We believe that no arrest should be made only because the offence is non-bailable and cognizable and therefore, lawful for the police officers to do so. The existence of the power to arrest is one thing, the justification for the exercise of it is quite another. Apart from power to arrest, the police officers must be able to justify the reasons thereof. No arrest can be made in a routine manner on a mere allegation of commission of an offence made against a person. It would beprudent and wise for a police officer that no arrest is made without a reasonable satisfaction reached after some investigation as to the genuineness of the allegation. Despite this legal position, the Legislature did not find any improvement. Numbers of arrest have not decreased. Ultimately, the Parliament had to intervene and on the recommendation of the 177th Report of the Law Commission submitted in the year 2001, Section 41 of the Code of Criminal Procedure (for short ‘Cr.PC), in the present form came to be enacted. It is interesting to note that such a recommendation was made by the Law Commission in its 152nd and 154th Report submitted as back in the year 1994. The value of the proportionality permeates the amendment relating to arrest. 

    Code of Criminal Procedure, 1973 - Section 41(1)(b) - When police may arrest without warrant - The police office before arrest must put a question to himself, why arrest? Is it really required? What purpose it will serve? What object it will achieve? It is only after these questions are addressed and one or the other conditions as enumerated above is satisfied, the power of arrest needs to be exercised. In fine, before arrest first the police officers should have reason to believe on the basis of information and material that the accused has committed the offence.

    Held:- From a plain reading of the aforesaid provision, it is evident that a person accused of offence punishable with imprisonment for a term which may be less than seven years or which may extend to seven years with or without fine, cannot be arrested by the police officer only on its satisfaction that such person had committed the offence punishable as aforesaid. Police officer before arrest, in such cases has to be further satisfied that such arrest is necessary to prevent such person from committing any further offence; or for proper investigation of the case; or to prevent the accused from causing the evidence of the offence to disappear; or tampering with such evidence in any manner; or to prevent such person from making any inducement, threat or promise to a witness so as to dissuade him from disclosing such facts to the Court or the police officer; or unless such accused person is arrested, his presence in the court whenever required cannot be ensured. These are the conclusions, which one may reach based on facts. Law mandates the police officer to state the facts and record the reasons in writing which led him to come to a conclusion covered by any of the provisions aforesaid, while making such arrest. Law further requires the police officers to record the reasons in writing for not making the arrest. In pith and core, the police office before arrest must put a question to himself, why arrest? Is it really required? What purpose it will serve? What object it will achieve? It is only after these questions are addressed and one or the other conditions as enumerated above is satisfied, the power of arrest needs to be exercised. In fine, before arrest first the police officers should have reason to believe on the basis of information and material that the accused has committed the offence. Apart from this, the police officer has to be satisfied further that the arrest is necessary for one or the more purposes envisaged by sub-clauses (a) to (e) of clause (1) of Section 41 of Cr.PC. 

    Constitution of India, 1950 - Article 22 (2) - Code of Criminal Procedure, 1973 - Section 41, 57 and 167 - Detention affects the liberty and freedom of citizens and needs to be exercised with great care and caution - In many of the cases, detention is authorised in a routine, casual and cavalier manner - Before a Magistrate authorises detention court has to be first satisfied that the arrest made is legal and in accordance with law and all the constitutional rights of the person arrested is satisfied - If the arrest effected by the police officer does not satisfy the requirements, Magistrate is duty bound not to authorise his further detention and release the accused - When an accused is produced before the Magistrate, the police officer effecting the arrest is required to furnish to the Magistrate, the facts, reasons and its conclusions for arrest and the Magistrate in turn is to be satisfied that condition precedent for arrest under S.41 Cr.PC has been satisfied and it is only thereafter that he will authorise the detention of an accused - The Magistrate before authorising detention will record its own satisfaction, may be in brief but the said satisfaction must reflect from its order - It shall never be based upon the ipse dixit of the police officer.

    Held:- An accused arrested without warrant by the police has the constitutional right under Article 22(2) of the Constitution of India and Section 57, Cr.PC to be produced before the Magistrate without unnecessary delay and in no circumstances beyond 24 hours excluding the time necessary for the journey. During the course of investigation of a case, an accused can be kept in detention beyond a period of 24 hours only when it is authorised by the Magistrate in exercise of power under Section 167 Cr.PC. The power to authorise detention is a very solemn function. It affects the liberty and freedom of citizens and needs to be exercised with great care and caution. Our experience tells us that it is not exercised with the seriousness it deserves. In many of the cases, detention is authorised in a routine, casual and cavalier manner. Before a Magistrate authorises detention under Section 167, Cr.PC, he has to be first satisfied that the arrest made is legal and in accordance with law and all the constitutional rights of the person arrested is satisfied. If the arrest effected by the police officer does not satisfy the requirements of Section 41 of the Code, Magistrate is duty bound not to authorise his further detention and release the accused. In other words, when an accused is produced before the Magistrate, the police officer effecting the arrest is required to furnish to the Magistrate, the facts, reasons and its conclusions for arrest and the Magistrate in turn is to be satisfied that condition precedent for arrest under Section 41 Cr.PC has been satisfied and it is only thereafter that he will authorise the detention of an accused. The Magistrate before authorising detention will record its own satisfaction, may be in brief but the said satisfaction must reflect from its order. It shall never be based upon the ipse dixit of the police officer, for example, in case the police officer considers the arrest necessary to prevent such person from committing any further offence or for proper investigation of the case or for preventing an accused from tampering with evidence or making inducement etc., the police officer shall furnish to the Magistrate the facts, the reasons and materials on the basis of which the police officer had reached its conclusion. Those shall be perused by the Magistrate while authorising the detention andonly after recording its satisfaction in writing that the Magistrate will authorise the detention of the accused. In fine, when a suspect is arrested and produced before a Magistrate for authorising detention, the Magistrate has to address the question whether specific reasons have been recorded for arrest and if so, prima facie those reasons are relevant and secondly a reasonable conclusion could at all be reached by the police officer that one or the other conditions stated above are attracted. To this limited extent the Magistrate will make judicial scrutiny. 

    Code of Criminal Procedure, 1973 - Section 41A - Notice of appearance before police officer - Inserted by Section 6 of the Code of Criminal Procedure (Amendment) Act, 2008 (Act 5 of 2009) - Aimed to avoid unnecessary arrest or threat of arrest. 

    Held:- Aforesaid provision makes it clear that in all cases where the arrest of a person is not required under Section 41(1), Cr.PC, the police officer is required to issue notice directing the accused to appear before him at a specified place and time. Law obliges such an accused to appear before the police officer and it further mandates that if such an accused complies with the terms of notice he shall not be arrested, unless for reasons to be recorded, the police office is of the opinion that the arrest is necessary. At this stage also, the condition precedent for arrest as envisaged under Section 41 Cr.PC has to be complied and shall be subject to the same scrutiny by the Magistrate as aforesaid. 

    Code of Criminal Procedure, 1973 - Section 41 - When police may arrest without warrant - Police officers do not arrest accused unnecessarily and Magistrate do not authorise detention casually and mechanically. 

    Held:- If the provisions of Section 41, Cr.PC which authorises the police officer to arrest an accused without an order from a Magistrate and without a warrant are scrupulously enforced, the wrong committed by the police officers intentionally or unwittingly would be reversed and the number of cases which come to the Court for grant of anticipatory bail will substantially reduce. We would like to emphasise that the practice of mechanically reproducing in the case diary all or most of the reasons contained in Section 41 Cr.PC for effecting arrest be discouraged and discontinued.

    Directions

    (1) All the State Governments to instruct its police officers not to automatically arrest when a case under Section 498-A of the IPC is registered but to satisfy themselves about the necessity for arrest under the parameters laid down above flowing from Section 41, Cr.PC;

    (2) All police officers be provided with a check list containing specified sub-clauses under Section 41(1)(b)(ii);

    (3) The police officer shall forward the check list duly filed and furnish the reasons and materials which necessitated the arrest, while forwarding/producing the accused before the Magistrate for further detention;

    (4) The Magistrate while authorising detention of the accused shall peruse the report furnished by the police officer in terms aforesaid and only after recording its satisfaction, the Magistrate will authorise detention;

    (5) The decision not to arrest an accused, be forwarded to the Magistrate within two weeks from the date of the institution of the case with a copy to the Magistrate which may be extended by the Superintendent of police of the district for the reasons to be recorded in writing;

    (6) Notice of appearance in terms of Section 41A of Cr.PC be served on the accused within two weeks from the date of institution of the case, which may be extended by the Superintendent of Police of the District for the reasons to be recorded in writing;

    (7) Failure to comply with the directions aforesaid shall apart from rendering the police officers concerned liable for departmental action, they shall also be liable to be punished for contempt of court to be instituted before High Court having territorial jurisdiction.

    (8) Authorising detention without recording reasons as aforesaid by the judicialMagistrate concerned shall be liable for departmental action by the appropriate High Court.

    The directions aforesaid shall not only apply to the cases under Section 498-A of the I.P.C. or Section 4 of the Dowry Prohibition Act but also such cases where offence is punishable with imprisonment for a term which may be less than seven years or which may extend to seven years; whether with or without fine.

    Arnesh Kumar Vs. State of Bihar & Anr.

    Posted at  Wednesday, July 02, 2014  |  in  Arrest  |  Read More»

    Indian Penal Code, 1860 - Section 498-A - Dowry Prohibition Act, 1961 - Section 4 - Anticipatory bail - Matrimonial Disputes - Crime in India 2012 Statistics - Provisions that are used as weapons rather than shield by disgruntled wives - Simplest way to harass is to get the husband and his relatives arrested under this provision - In a quite number of cases,bed-ridden grand-fathers and grand-mothers of the husbands, their sisters living abroad for decades are arrested.

    Held:- There is phenomenal increase in matrimonial disputes in recent years. The institution of marriage is greatly revered in this country. Section 498-A of the IPC was introduced with avowed object to combat the menace of harassment to a woman at the hands of her husband and his relatives. The fact that Section 498-A is a cognizable and non-bailable offence has lent it a dubious place of pride amongst the provisions that are used as weapons rather than shield by disgruntled wives. The simplest way to harass is to get the husband and his relatives arrested under this provision. In a quite number of cases,bed-ridden grand-fathers and grand-mothers of the husbands, their sisters living abroad for decades are arrested. “Crime in India 2012 Statistics” published by National Crime Records Bureau, Ministry of Home Affairs shows arrest of 1,97,762 persons all over India during the year 2012 for offence under Section 498-A of the IPC, 9.4% more than the year 2011. Nearly a quarter of those arrested under this provision in 2012 were women i.e. 47,951 which depicts that mothers and sisters of the husbands were liberally included in their arrest net. Its share is 6% out of the total persons arrested under the crimes committed under Indian Penal Code. It accounts for 4.5% of total crimes committed under different sections of penal code, more than any other crimes excepting theft and hurt. The rate of charge-sheeting in cases under Section 498A, IPC is as high as 93.6%, while the conviction rate is only 15%, which is lowest across all heads. As many as 3,72,706 cases arepending trial of which on current estimate, nearly 3,17,000 are likely to result in acquittal. 

    Arrest - Power to arrest - The attitude to arrest first and then proceed with the rest is despicable. 

    Held:- Arrest brings humiliation, curtails freedom and cast scars forever. Law makers know it so also the police. There is a battle between the law makers and the police and it seems that police has not learnt its lesson; the lesson implicit and embodied in the Cr.PC. It has not come out of its colonial image despite six decades of independence, it is largely considered as a tool of harassment, oppression and surely not considered a friend of public. The need for caution in exercising the drastic power of arrest has been emphasized time and again by Courts but has not yielded desired result. Power to arrest greatly contributes to its arrogance so also the failure of the Magistracy to check it. Not only this, the power of arrest is one of the lucrative sources of police corruption. The attitude to arrest first and then proceed with the rest is despicable. It has become a handy tool to the police officers who lack sensitivity or act with oblique motive. 

    Arrest - Power of arrest - No arrest should be made only because the offence is non-bailable and cognizable - No arrest can be made in a routine manner on a mere allegation of commission of an offence made against a person - No arrest is made without a reasonable satisfaction reached after some investigation as to the genuineness of the allegation - 

    Held:- Law Commissions, Police Commissions and this Court in a large number of judgments emphasized the need to maintain a balance between individual liberty and societal order while exercising the power of arrest. Police officers make arrest as they believe that they possess the power to do so. As the arrest curtails freedom, brings humiliation and casts scars forever, we feel differently. We believe that no arrest should be made only because the offence is non-bailable and cognizable and therefore, lawful for the police officers to do so. The existence of the power to arrest is one thing, the justification for the exercise of it is quite another. Apart from power to arrest, the police officers must be able to justify the reasons thereof. No arrest can be made in a routine manner on a mere allegation of commission of an offence made against a person. It would beprudent and wise for a police officer that no arrest is made without a reasonable satisfaction reached after some investigation as to the genuineness of the allegation. Despite this legal position, the Legislature did not find any improvement. Numbers of arrest have not decreased. Ultimately, the Parliament had to intervene and on the recommendation of the 177th Report of the Law Commission submitted in the year 2001, Section 41 of the Code of Criminal Procedure (for short ‘Cr.PC), in the present form came to be enacted. It is interesting to note that such a recommendation was made by the Law Commission in its 152nd and 154th Report submitted as back in the year 1994. The value of the proportionality permeates the amendment relating to arrest. 

    Code of Criminal Procedure, 1973 - Section 41(1)(b) - When police may arrest without warrant - The police office before arrest must put a question to himself, why arrest? Is it really required? What purpose it will serve? What object it will achieve? It is only after these questions are addressed and one or the other conditions as enumerated above is satisfied, the power of arrest needs to be exercised. In fine, before arrest first the police officers should have reason to believe on the basis of information and material that the accused has committed the offence.

    Held:- From a plain reading of the aforesaid provision, it is evident that a person accused of offence punishable with imprisonment for a term which may be less than seven years or which may extend to seven years with or without fine, cannot be arrested by the police officer only on its satisfaction that such person had committed the offence punishable as aforesaid. Police officer before arrest, in such cases has to be further satisfied that such arrest is necessary to prevent such person from committing any further offence; or for proper investigation of the case; or to prevent the accused from causing the evidence of the offence to disappear; or tampering with such evidence in any manner; or to prevent such person from making any inducement, threat or promise to a witness so as to dissuade him from disclosing such facts to the Court or the police officer; or unless such accused person is arrested, his presence in the court whenever required cannot be ensured. These are the conclusions, which one may reach based on facts. Law mandates the police officer to state the facts and record the reasons in writing which led him to come to a conclusion covered by any of the provisions aforesaid, while making such arrest. Law further requires the police officers to record the reasons in writing for not making the arrest. In pith and core, the police office before arrest must put a question to himself, why arrest? Is it really required? What purpose it will serve? What object it will achieve? It is only after these questions are addressed and one or the other conditions as enumerated above is satisfied, the power of arrest needs to be exercised. In fine, before arrest first the police officers should have reason to believe on the basis of information and material that the accused has committed the offence. Apart from this, the police officer has to be satisfied further that the arrest is necessary for one or the more purposes envisaged by sub-clauses (a) to (e) of clause (1) of Section 41 of Cr.PC. 

    Constitution of India, 1950 - Article 22 (2) - Code of Criminal Procedure, 1973 - Section 41, 57 and 167 - Detention affects the liberty and freedom of citizens and needs to be exercised with great care and caution - In many of the cases, detention is authorised in a routine, casual and cavalier manner - Before a Magistrate authorises detention court has to be first satisfied that the arrest made is legal and in accordance with law and all the constitutional rights of the person arrested is satisfied - If the arrest effected by the police officer does not satisfy the requirements, Magistrate is duty bound not to authorise his further detention and release the accused - When an accused is produced before the Magistrate, the police officer effecting the arrest is required to furnish to the Magistrate, the facts, reasons and its conclusions for arrest and the Magistrate in turn is to be satisfied that condition precedent for arrest under S.41 Cr.PC has been satisfied and it is only thereafter that he will authorise the detention of an accused - The Magistrate before authorising detention will record its own satisfaction, may be in brief but the said satisfaction must reflect from its order - It shall never be based upon the ipse dixit of the police officer.

    Held:- An accused arrested without warrant by the police has the constitutional right under Article 22(2) of the Constitution of India and Section 57, Cr.PC to be produced before the Magistrate without unnecessary delay and in no circumstances beyond 24 hours excluding the time necessary for the journey. During the course of investigation of a case, an accused can be kept in detention beyond a period of 24 hours only when it is authorised by the Magistrate in exercise of power under Section 167 Cr.PC. The power to authorise detention is a very solemn function. It affects the liberty and freedom of citizens and needs to be exercised with great care and caution. Our experience tells us that it is not exercised with the seriousness it deserves. In many of the cases, detention is authorised in a routine, casual and cavalier manner. Before a Magistrate authorises detention under Section 167, Cr.PC, he has to be first satisfied that the arrest made is legal and in accordance with law and all the constitutional rights of the person arrested is satisfied. If the arrest effected by the police officer does not satisfy the requirements of Section 41 of the Code, Magistrate is duty bound not to authorise his further detention and release the accused. In other words, when an accused is produced before the Magistrate, the police officer effecting the arrest is required to furnish to the Magistrate, the facts, reasons and its conclusions for arrest and the Magistrate in turn is to be satisfied that condition precedent for arrest under Section 41 Cr.PC has been satisfied and it is only thereafter that he will authorise the detention of an accused. The Magistrate before authorising detention will record its own satisfaction, may be in brief but the said satisfaction must reflect from its order. It shall never be based upon the ipse dixit of the police officer, for example, in case the police officer considers the arrest necessary to prevent such person from committing any further offence or for proper investigation of the case or for preventing an accused from tampering with evidence or making inducement etc., the police officer shall furnish to the Magistrate the facts, the reasons and materials on the basis of which the police officer had reached its conclusion. Those shall be perused by the Magistrate while authorising the detention andonly after recording its satisfaction in writing that the Magistrate will authorise the detention of the accused. In fine, when a suspect is arrested and produced before a Magistrate for authorising detention, the Magistrate has to address the question whether specific reasons have been recorded for arrest and if so, prima facie those reasons are relevant and secondly a reasonable conclusion could at all be reached by the police officer that one or the other conditions stated above are attracted. To this limited extent the Magistrate will make judicial scrutiny. 

    Code of Criminal Procedure, 1973 - Section 41A - Notice of appearance before police officer - Inserted by Section 6 of the Code of Criminal Procedure (Amendment) Act, 2008 (Act 5 of 2009) - Aimed to avoid unnecessary arrest or threat of arrest. 

    Held:- Aforesaid provision makes it clear that in all cases where the arrest of a person is not required under Section 41(1), Cr.PC, the police officer is required to issue notice directing the accused to appear before him at a specified place and time. Law obliges such an accused to appear before the police officer and it further mandates that if such an accused complies with the terms of notice he shall not be arrested, unless for reasons to be recorded, the police office is of the opinion that the arrest is necessary. At this stage also, the condition precedent for arrest as envisaged under Section 41 Cr.PC has to be complied and shall be subject to the same scrutiny by the Magistrate as aforesaid. 

    Code of Criminal Procedure, 1973 - Section 41 - When police may arrest without warrant - Police officers do not arrest accused unnecessarily and Magistrate do not authorise detention casually and mechanically. 

    Held:- If the provisions of Section 41, Cr.PC which authorises the police officer to arrest an accused without an order from a Magistrate and without a warrant are scrupulously enforced, the wrong committed by the police officers intentionally or unwittingly would be reversed and the number of cases which come to the Court for grant of anticipatory bail will substantially reduce. We would like to emphasise that the practice of mechanically reproducing in the case diary all or most of the reasons contained in Section 41 Cr.PC for effecting arrest be discouraged and discontinued.

    Directions

    (1) All the State Governments to instruct its police officers not to automatically arrest when a case under Section 498-A of the IPC is registered but to satisfy themselves about the necessity for arrest under the parameters laid down above flowing from Section 41, Cr.PC;

    (2) All police officers be provided with a check list containing specified sub-clauses under Section 41(1)(b)(ii);

    (3) The police officer shall forward the check list duly filed and furnish the reasons and materials which necessitated the arrest, while forwarding/producing the accused before the Magistrate for further detention;

    (4) The Magistrate while authorising detention of the accused shall peruse the report furnished by the police officer in terms aforesaid and only after recording its satisfaction, the Magistrate will authorise detention;

    (5) The decision not to arrest an accused, be forwarded to the Magistrate within two weeks from the date of the institution of the case with a copy to the Magistrate which may be extended by the Superintendent of police of the district for the reasons to be recorded in writing;

    (6) Notice of appearance in terms of Section 41A of Cr.PC be served on the accused within two weeks from the date of institution of the case, which may be extended by the Superintendent of Police of the District for the reasons to be recorded in writing;

    (7) Failure to comply with the directions aforesaid shall apart from rendering the police officers concerned liable for departmental action, they shall also be liable to be punished for contempt of court to be instituted before High Court having territorial jurisdiction.

    (8) Authorising detention without recording reasons as aforesaid by the judicialMagistrate concerned shall be liable for departmental action by the appropriate High Court.

    The directions aforesaid shall not only apply to the cases under Section 498-A of the I.P.C. or Section 4 of the Dowry Prohibition Act but also such cases where offence is punishable with imprisonment for a term which may be less than seven years or which may extend to seven years; whether with or without fine.

    About-Privacy Policy-Contact us
    Copyright © 2013 SUPREME LAW. Blogger Template by Bloggertheme9
    Proudly Powered by Blogger.
    back to top