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INSTITUTE OF JUDICIAL TRAINING & RESEARCH, U.P. VINEET KHAND, GOMTINAGAR,
LUCKNOW – 226 010
Quarterly Digest
CONSTITUTIONAL, CIVIL, CRIMINAL & REVENUE LAWS (Covering important judgments of Supreme Court and Allahabad High Court)
April – June, 2007
Volume: XIII Issue No.: 2
Quarterly Digest
CONSTITUTIONAL, CIVIL, CRIMINAL & REVENUE LAWS (Covering important judgments of Supreme Court and Allahabad High Court)
April – June, 2007
Volume: XIII Issue No.:2
INSTITUTE OF JUDICIAL TRAINING & RESEARCH, U.P. VINEET KHAND, GOMTINAGAR,
LUCKNOW – 226 010
EDITOR-IN-CHIEF VED PAL Director
EDITOR-IN-CHARGE A.K. AGARWAL, Additional Director (Administration)
EDITORS VIJAI VARMA, Additional Director (Training)
GYANESH KUMAR, DY. Director Ms. REKHA AGNIHOTRI, DY. Director Mrs. KIRAN BALA, Assistant Director
FINANCIAL ADVISOR AWADHESH KUMAR
Additional Director (Finance)
ASSOCIATES SABIHA AKHTAR, Training Officer
B.K. MISHRA, Research Officer
ASSISTANCE D.C. Kapri
Mahendra Joshi Nagendra Kumar Shukla,
Anoop Kumar K.S. Bajpayee
SUBJECT INDEX
Sl.No. Subject
PART – I
1. Advocates Act
2. Arbitration and Conciliation Act
3. Arms & Explosive
4. Banking Law
5. Civil Procedure Code
6. Constitution of India
7. Contempt of Courts Act
8. Contract Act
9. Co-operative Societies Act
10. Court Fee Act
11. Criminal Procedure Code
12. Criminal Trial
13. Education
14. Essential Commodities Act
15. Evidence Act
16. Family Law / Matrimonial Disputes
17. Guardians and Wards Act
18. Hindu Marriage Act
19. Hindu Minority and Guardianship Act
20. Indian Penal Code
21. Indian Succession Act
22. Interpretation of Statutes
23. Land Acquisition Act
24. Legal Services Authorities Act
25. Limitation Act
26. Motor Vehicles Act, 1988
27. Muslim Law
28. NDPS Act
29. Negotiable Instruments Act
30. Panchayats and Zila Parishads
31. Precedents
32. Prevention of Corruption Act
33. Prevention of Food Adulteration Act 1954
34. Provincial Small Cause Courts Act
35. Public Policy
36. Rent Control and Eviction
37. Societies Registration Act
38. Specific Relief Act
39. Stamp Act
40. Taxation
41. Tort
42. Transfer of Property Act
43. U.P. Consolidation of Holdings Act
44. U.P. Imposition of Ceiling on Land Holdings Act
45. U.P. Land Revenue Act
46. U.P. Municipalities Act
47. U.P. Recruitment of Dependants of Government Servants
(Dying in Harness) Rule
48. U.P. Zamindari Abolition and Land Reforms Act
49. Will - Mutation
PART – II
50. Pending Bill(s)
51. Words and Phrases
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LIST OF CASES COVERED IN THIS ISSUE
Sl.No Name of the Case & Citation
1. Aashirwad Films v. Union of India & Ors; Appeal (civil) 709 of 2004,
decided by Hon‘ble Supreme Court on 18.05.2007
2. Abdul Qayyum v. II Additional District Judge Meerut & Ors.; 2007 (2) ALJ
332
3. Ace Pipeline Contracts Private Limited v. Bharat Petroleum Corporation
Limited; decided by Hon‘ble Supreme Court on 04.04.2007
4. Ajay Singh v. State of Maharashtra; Appeal (crl.) 829 of 2007, Decided by
Hon‘ble Supreme Court on 06/06/2007
5. Ashok Kumar Sonkar v. Union of India and Others; Civil Appeal No. 4761 of
2006, decided on February 23, 2007 by the Hon‘ble Supreme Court = (2007)
4 SCC 54
6. Ashok Pandey v. K. Mayawati and others; Writ Petition (Civil) 296 of 2007,
decided by Hon‘ble Supreme Court on 13.6.2007
7. Bapu @ Gajraj Singh v. State of Rajasthan; Appeal (crl.) 1313 of 2006,
Decided by Hon‘ble Supreme Court on 04/06/2007
8. Brij lal v. Dy. Director of Consolidation; 2007(102) RD 496
9. Budh Singh v. State of M.P.; Appeal (crl.) 769 of 2007, Decided by Hon‘ble
Supreme Court on 18/05/2007
10. Caterpillar India Pvt. Ltd v. Western Coal Fields Ltd. and Ors; Transfer Case
(civil) 4 of 2004, Decided by Hon‘ble Supreme Court on 18/05/2007
11. Central Bureau of Investigation v. State of Gujarat; Appeal (Crl.) 1181 of
2001, Decided by Hon‘ble Supreme Court on 21/06/2007
12. Daya Ram v. Raghunath & Ors Appeal (civil) 2900 of 2007, Decided on
15/06/2007
13. Dy. Superintendent, H.P. Corpn. Ltd. & Anr v. Kolhapur Agri. Market
Commtt. Kolhapur; Appeal (civil) 2903 of 2007, Decided by Hon‘ble
Supreme Court on 20/06/2007
14. Executive Officer, Nagar Panchayat Chandauli and Anr. v. State of U.P. and
Others.; 2007 (2) ALJ DOC 17 (ALL) DB
15. Gobinder Singh v. General Public; AIR 2007 (NOC) 792 P&H
16. Greater Bombay Co-op. Bank Ltd v. M/s United Yarn Tex. Pvt. Ltd. & Ors;
Appeal (civil) 432 of 2004, Decided by Hon‘ble Supreme Court on
04/04/2007
17. Gurpreet Singh v. Union of India; Appeal (civil) 4570/2006, decided by
Constitutional Bench of Hon‘ble Supreme Court on 19.10.2006
18. Heera & Anr v. State of Rajasthan; Appeal (Crl.) 1307 of 2006, Decided by
Hon‘ble Supreme Court on 20/06/2007
19. In re: Ram Chandra Sharma; Cri. Contempt No. 29 of 2005, decided by
Hon‘ble Allahabad High Court on 19.9.2005 = 2007 (3) ALJ 94
20. Iqbal Bano v. State of U.P. and Anr; Appeal (crl.) 795 of 2001, Decided by
Supreme Court on 05/06/2007
21. Jagat Bhan Singh v. State of U.P. 2007 (2) ALJ 639
22. Jagvir Singh & Ors. v. State (Delhi Admn.), Appeal (Crl.) Decided by
Hon‘ble Supreme Court on 5.6.2007
23. Kailash Nath Pandey and another v. State of U.P. and another;
Criminal Misc. Application No. 12535 of 2007, Decided by Hon‘ble
Allahabad High Court on 05.06.2007
24. Kamal Singh v. State of U.P.; 2007 (3) ALJ 146
25. Kandapazha Nadar & Ors. V. Chitraganiammal & Ors.; C.A. No. 5107 of
2000, Decided by Hon‘ble Supreme Court on 16.4.2007 = 2007(3) Supreme
529
26. Kishori Lal v. State of M.P; Appeal (crl.) 1115 of 1999, Decided by Hon‘ble
Supreme Court: 19/06/2007
27. Laxman Anaji Dhundale & Another v. State of Maharashtra; Appeal (crl.)
481 of 2007, Decided by Hon‘ble Supreme Court on 04/04/2007
28. M/s Bindal Logistics Pvt. Ltd. v. M/s Ashoka Handloom Factory & Ors. 2007
(1) ALJ 148
29. M/s Delta Mechcons (India) Ltd v. M/s Marubeni Corporation; Arbitration
Petition 11 of 2006, Decided by Hon‘ble Supreme Court on 18.05.2007
30. M/s Hotel Vilas and Anr. v. Anil Roy and Ors.; 2007 (3) ALJ 427
31. M/s Universal Subscriptions Agency Pvt. Ltd. v. The Joint Commissioner of
Income Tax, Special Ranger, Kanpur; 2007 (1) ALJ 376 DB
32. Manager, ICICI Bank Ltd. v. Prakash Kaur and others; Cr. Appeal No.
267/2007, Decided by Hon‘ble Supreme Court on 26.2.2007 = 2007 (3) ALJ
245
33. Mano v. State of Tamil Nadu; Appeal (crl.) 462 of 2007, Decided by Hon‘ble
Supreme Court on 02.04.2007
34. Mohd. Yusuf & Others v. State Of U.P. & Another; Application U/s 482 No.
12516 of 2007, Decided on 05/06/2007
35. N. Rangachari v. Bharat Sanchar Nigam Limited; Criminal Appeal No. 592 of
2007, Decided by Hon‘ble Supreme Court on 19.4.2007 = 2007 (3) Supreme
626
36. Nanta Deb Singha Mahapatra & Ors v. State of West Bengal; Appeal (crl.)
828 of 2007, Decided by Hon‘ble Supreme Court on 06/06/2007
37. National Institute of Technology and others v. Neeraj Kumar Singh; AIR
2007 SC 1155
38. New India Assurance Co. Ltd. v. Vedwati and Ors.; 2007 (3) ALJ 193
39. Niranjan Singh v. State of Madhya Pradesh; Appeal (crl.) 487 of 2001;
Decided by Hon‘ble Supreme Court on 14/06/2007
40. North East Karnataka Road Transport Corporation v. M. Nagangouda;
Criminal Appeal No. 129/2007 decided on January 9, 2007 by Hon‘ble
Supreme Court = AIR 2007 SC 973
41. Om Prakash v. State (NCT) of Delhi; Appeal (crl.) 534 of 2001; Decided by
Hon‘ble Supreme Court on 5.6.2007
42. Onkar Nath s/o Deewan Chandra v. Union of India & Ors; 2007 (2) ALJ 307
43. Oriental Insurance Company Ltd. v. Meena Variyal & Ors.; 2007 (3) ALJ 596
SC
44. P.T. Munichilkkanna Reddy & Ors. v. Revamma & Ors.; Civil Appeal No.
7062 of 2000, Decided by Hon‘ble Supreme Court on 24.4.2007 = 2007 (3)
Supreme 751
45. Patel Jagdish Haribhai v. State of Gujarat; 2007 Cri. LJ 1297
46. Peekay Re-Rolling Mills Pvt. Ltd. v. Asst. Commissioner and another; (2007)
4 SCC 30
47. Prabhakaran v. State of Kerala; Appeal (Crl.) 775 of 2005, Decided by
Hon‘ble Supreme Court on 21/06/2007
48. Prabhat Kumar Srivastava v. State of Uttar Pradesh and Anr.; 2007 (3) ALJ
140
49. Pramod Singh v. State of U.P., Criminal Misc. Writ Petition No. 10180 of
2007, Decided by Hon‘ble High Court of Allahabad on 23.3.2007 = 2007 (58)
ACC 192
50. Raj Kumar Soni & Anr Vs. State of U.P. & Anr.; Appeal (civil) 1763 of 2007,
Decided by Hon‘ble Supreme Court on 03/04/2007
51. Ram Anugrah v. Dy. Director of Consolidation, Allahabad; 2007 (102) RD
736
52. Ram Charittar & Another etc v. State of Uttar Pradesh etc.; Appeal (crl.) 329
of 2006, Decided by Hon‘ble Supreme Court on 04/04/2007
53. Ram Khiladi alias Ram Khilona alias Dariwal v. State of U.p.; Crl. M. First
Bail Application No. 11346 of 2007, Decided by Hon‘ble Allahabad High
Court on 04.06.2007
54. Ram Kishor v. State of U.P.; Criminal Misc. Bail Application No. 11414 of
2007, Decided on 5-6-07 by Allahabad High Court
55. Ram Narayan Gupta v. Smt. Laxmi Devi & Another; Application U/s 482 No.
11923 of 2007, Judgement/Order Dated 01/06/2007
56. Ram Sewak and Anr. v. State of U.P. and Anr.; 2007 (3) ALJ 114
57. Ram Sewak v. State of U.P.; 2007 (102) RD 511
58. Ram Shanker v. State of U.P. and others; AIR 2007 (NOC) 979 Allahabad
59. Ram Singh v. Sonia & Others; Cri. Appeals No. 895 of 2005 with Nos. 894 of
2005 and 142 of 2006, decided on February 15, 2007 = (2007) 2 SCC (Cri) 1
60. Rathnashalvan v. State of Karnataka; Criminal Appeal No. 45 of 2007,
Decided on January 11, 2007 by the Hon‘ble Supreme Court = (2007) 3 SCC
474
61. Raveendranath Naik v. Bar Council of India and others; W.P. No. 11180 of
2003, Decided by Hon‘ble Karnaktaka High Court on 8.2.2007 = 2007 (3)
ALJ (NOC) 524 Kar. = AIR 2007 Kar. 75
62. Rosali V. v. Talco Bank & Ors.; C. A. No. 6129 of 2000, decided on
23.1.2007 by the Hon‘ble Supreme Court = AIR 2007 SC 998
63. Sanjay Singh and Another v. U.P. Public Service Commission, Allahabad and
Another; Writ Petition (C) No. 165 of 2005 with Nos. 172, 409, 466 and 467
of 2005, decided on January 9, 2007 by the Hon‘ble Supreme Court = (2007)
3 SCC 720
64. Satish Rajput, Advocate & Others v. State of U.P. & Another; Application
U/s. 482 No. 12467 of 2007, Decided by Hon‘ble Allahabad High Court on
04.06.2007
65. Secretary, A.P. Social Welfare Residential Educational Institutions v. Pindiga
Sridhar & ors.; Civil Appeal No. 1470/2007, Decided by Hon‘ble Supreme
Court on 19.3.2007 = AIR 2007 SC 1527
66. Shamsher and Others v. State of U P.; Crl. Misc. Application no. 3076 of
2007, Decided by Hon‘ble High Court on 22-3-07
67. Shivanand Mallappa Koti v. State of Karnataka; Appeal (Crl.) 145 of 2002,
Decided by Hon‘ble Supreme Court on 5.6.2007
68. Smt. Manjuri Bera v. The Oriental Insurance Company Ltd. & Anr.; Civil
Appeal No. 1702 of 2007, Decided by Hon‘ble Supreme Court on 30.3.2007
= 2007 (3) Supreme 620
69. Smt. Mayadevi v. Jagdish Prasad; Civil Appeal No. 877 of 2007, Decided by
Hon‘ble Supreme Court on 21.2.2007 = AIR 2007 S.C. 1426
70. Smt. Suresh and Others v. Shree Chand and Others; W.P. Nos. 311 and 25926
of 2005, Decided by Hon‘ble Allahabad High Court on 22.02.2007 = 2007
(102) RD 516
71. Smt. Zakia Kausar v. Dy. Director of Consolidation, Moradabad
72. Sobaran Singh v. Board of Revenue and Anrs.; 2007 (2) ALJ DOC 25 ALL
73. Sri Pratap Bhattacharya v. Sri Ashok Bhattacharya; AIR 2007 (NOC) 893
Cal.
74. State of Haryana v. Surender & Ors. etc.; Appeal (crl.) 618-620 of 2001,
Decided by Hon‘ble Supreme Court on 01/06/2007
75. State of Haryana v. Suresh & Appeal (crl.) 1097 of 2002; State of Rajasthan
v. Babu Ram Appeal (Crl.) 248/2001 Decided by the Hon‘ble Supreme Court
on 5.6.2007
76. State of Madhya Pradesh v. Chamru @ Bhagwandas etc.etc; Appeal (crl.)
743-744 of 2002, Decided on 19/06/2007
77. State of Madhya Pradesh v. Sewa Singh; Appeal (crl.) 1275 of 2001, Decided
by Hon‘ble Supreme Court on 13/06/2007
78. State of Rajasthan v. Chittarmal; Appeal (Crl.) 477 of 2001, Decided by
Hon‘ble Supreme Court on 21/06/2007
79. State of Rajasthan v. Wakteng; Appeal (crl.) 677 of 2002, Decided by
Hon‘ble Supreme Court on 07/06/2007
80. State, NCT of Delhi v. Malvinder Singh; Appeal (Crl.) 433 of 2002, Decided
by Hon‘ble Supreme Court on 21/06/2007
81. Sukhwasi v. State of U.P.; Cr. Misc. Application No 9297 of 2007, Decided
on 18-5-2007
82. Supreme Court Bar Association v. Union of India & Ors.; W.P. (Civil) No. 27
of 2007, Decided by Hon‘ble Supreme Court on 13.4.2007 = 2007 (3)
Supreme 562
83. Suraj Bhan & Ors. v. Financial Commr. & Ors.; Civil Appeal No. 1971 of
2007, Decided by Hon‘ble Supreme Court on 16.4.2007 = 2007 (3) Supreme
539
84. Swami Rameshwar Prapannacharya Daraganj, Allahabad v. State of U.P.;
2007 (3) ALJ 390
85. Swamy Sharaddanandea @ Murali Monahar Mishra v. State of Karnataka;
Appeal (Crl.) 454 of 2006, Decided by Hon‘ble Supreme Court on
18.05.2007
86. The Oriental Insurance Company Limited v. Meena Variyal & ors; Appeal
(civil) 5825 of 2006; Decided by Hon‘ble Supreme Court on 02.04.2007
87. Umesh Chandra and Anr. v. Mahila Vidyalaya Society, Lucknow and others;
2007 (2) ALJ (NOC) 292
88. Union of India & Anr. v. Smt. Jagdish Kaur; AIR 2007 Allahabad 67
89. Union of India v. R. Gandhi; Appeal (civil) 3067 of 2004, Decided by
Hon‘ble Supreme Court on 18.05.2007
90. Usha Balashaheb Swami & ors. v. Kiran Appaso Swami & Ors.; Civil Appeal
No. 2019 of 2007, Decided by Hon‘ble Supreme Court on 18.4.2007 = 2007
(3) Supreme 582
91. V.R. Sudhakara Rao & Ors. v. T.V. Kameswari; Civil Appeal Nos. 8303-
8304 of 2003, Decided by Hon‘ble Supreme Court on 18.4.2007 = 2007 (3)
Supreme 592
92. Vinod Kumar Kushwaha v. The Vice Chancellor, Bundelkhand University,
Jhansi; C.M.W.P. No 40247 of 2005, Decided by Hon‘ble Allahabad High
Court on 02.03.2007
93. Vishal Chand Jain v. IX Addl. District Judge, Saharanpur & Ors.; 2007 (3)
ALJ 74
94. Vishnu Prakash Agarwal v. State of U.p.; Crl. M. Bail Application No. 11397
of 2007, Decided by Hon‘ble Allahabad High Court on 04.06.2007
95. West Bengal State Electricity Board v. Dilip Kumar Ray; AIR 2007 SC 976
96. Yogendra Pal and Others v. State of U.P.; Criminal Appeal No. 561 of 1981,
Decided by Hon‘ble Allahabad High Court on 28.6.2007
* * *
PART – I
Advocates Act Sec. 6 – Resolution passed by Bar Council of India directing advocates not
to participate in the programme of Legal Service Authorities in the form of
Lok Adalat and Legal Aid Programmes. Such direction is inoperative as
being illegal and void. (Raveendranath Naik v. Bar Council of India and others,
W.P. No. 11180 of 2003, decided by Karnaktaka High Court on 8.2.2007 = 2007
(3) ALJ (NOC) 524 Kar. = AIR 2007 Kar. 75)
Arbitration and Conciliation Act
Section 11(4)-(5)-(6) – Whether for purposes of sub-sections (4) and (5) of
Section, which expressly prescribe 30 days, the period of 30 days is
mandatory or not.‖
The period of 30 days cannot be read in Sub-Section (6) of Section 11 of
the Act as the statute does not permit it. We are aware of the Departmental
lethargy in making appointment of arbitrators in terms of the arbitration clause.
Therefore, mandamus can be issued by the Courts in exercise of powers under
Section 11(6) of the Act but the demand should be in the event of failure by the
authorities to appoint arbitrators within the reasonable time. Courts are not
powerless to issue mandamus to the authorities to appoint arbitrators as far as
possible as per the arbitration clause. But in large number of cases if it is found
that it would not be conducive in the interest of parties or for any other reasons to
be recorded in writing, choice can go beyond the designated persons or
institutions in appropriate cases. But it should normally be adhered to the terms
of arbitration clause & appoint the arbitrator/arbitrators named therein except in
exceptional cases for reasons to be recorded or where both parties agree for
common name. Appeal (civil) 1783 of 2007. (Ace Pipeline Contracts Private
Limited v. Bharat Petroleum Corporation Limited; Decided by Hon‘ble
Supreme Court on 04.04.2007)
S. 11 – ICC fail to appoint Presiding Arbitrator as per the Arbitration
Agreement – Whether Presiding Arbitrator can be appointed by the Chief
Justice of India – Yes.
As per terms of Arbitration agreement the petitioner and the respondent
have nominated their arbitrators but the nominee arbitrators had failed to appoint
a presiding arbitrator in terms thereof and in that context, as per the agreement,
the petitioner had approached the ICC for nominating a presiding arbitrator but
the ICC had refused the request without assigning any reason. Held, that the
jurisdiction of the Chief Justice of India --- being an international arbitration ---
under the Act was attracted and it was just and necessary to appoint a presiding
arbitrator in terms of Section 11 of the Act. (M/s Delta Mechcons (India) Ltd v.
M/s Marubeni Corporation; Arbitration Petition 11 of 2006, Decided by
Hon‘ble Supreme Court on 18.05.2007)
Arms & Explosive Arms Act 1959 Sec. 17(3) - Suspension of Arms License. Whether pendency
of criminal case is sufficient to suspend arms license - Held: No. But if the
weapon is used in a criminal case licence can be suspended for a particular
period. (Pramod Singh v. State of U.P., Criminal Misc. Writ Petition No. 10180
of 2007, Decided by Hon‘ble High Court of Allahabad on 23.3.2007 = 2007 (58)
ACC 192
Banking Law Recovery of Debts Due to Banks and Financial Institutions Act, 1993 Sec. 25 -
Bank Loan – Recovery: Held: Recovery should be made by the bank through
legal means and not by hiring muscles men as recovery agents. (Manager
ICICI Bank Ltd. V. Prakash Kaur and others, Cr. Appeal No. 267/2007, decided
by Hon‘ble Supreme Court, on 26.2.2007 = 2007 (3) ALJ 245.)
Civil Procedure Code O. 6 Rule 17 – Amendment of Pleadings – Amendment of Plaint &
Written Statement stand on different footings – Amendment may be allowed
after the trial has commenced if the court is satisfied that application could
not move earlier despite of due diligence of the party – Court should be
liberal in granting prayer for amendment of Pleadings.
From a bare perusal of Order 6 Rule 17 of the Code of Civil Procedure, it
is clear that the court is conferred with power, at any stage of the proceedings, to
allow alteration and amendments of the pleadings if it is of the view that such
amendments may be necessary for determining the real question in controversy
between the parties. The proviso to Order 6 Rule 17 of the Code, however,
provides that no application for amendment shall be allowed after the trial has
commenced unless the court comes to a conclusion that in spite of due diligence,
the party could not have raised the matter before the commencement of trial.
However, proviso to Order 6 Rule 17 of the Code would not be applicable in the
present case, as the trial of the suit has not yet commenced.
It is now well-settled by various decisions of this Court as well as those by
High Courts that the courts should be liberal in granting the prayer for amendment
of pleadings unless serious injustice or irreparable loss is caused to the other side
or on the ground that the prayer for amendment was not a bonafide one.
It is equally well settled principle that a prayer for amendment of the
plaint and a prayer for amendment of the written statement stand on different
footings. The general principle that amendment of pleadings cannot be allowed so
as to alter materially or substitute cause of action or the nature of claim applies to
amendments to plaint. It has no counterpart in the principles relating to
amendment of the written statement. Therefore, addition of a new ground of
defence of substituting or altering a defence or taking inconsistent pleas in the
written statement would not be objectionable while adding, altering or
substituting a new cause of action in the plaint may be objectionable. Such being
the settled law, we must hold that in the case of amendment of a written
statement, the courts are more liberal in allowing an amendment than that of a
plaint as the question of prejudice would be far less in the former than in the latter
case. (Usha Balashaheb Swami & ors. v. Kiran Appaso Swami & Ors.; Civil
Appeal No. 2019 of 2007, decided by Hon‘ble Supreme Court on 18.4.2007 =
2007 (3) Supreme 582)
O. 23 Rule 1(4) (b) withdrawal of suit – Suit withdrawal without liberty to
file fresh suit.
Order allowing withdrawal cannot constitute a decree debarring plaintiff
from taking the defence in second round of litigation. When the court allows the
suit to be withdrawn without liberty to file a fresh suit, without any adjudication,
such order allowing withdrawal cannot constitute a decree and it cannot debar the
petitioners herein from taking the defence in the second round of litigation.
(Kandapazha Nadar & Ors. V. Chitraganiammal & Ors.; C.A. No. 5107 of
2000, Decided by Hon‘ble Supreme Court on 16.4.2007 = 2007(3) Supreme
529)
Constitution of India Whether the legislature is competent in setting up national company law
tribunal and its appellate tribunal barring the jurisdiction exercised by the
High Court under Article 226 & 227 of the Constitution – Matter referred
for decision to Constitution bench by holding as follows: -
Law relating to the legislative competence to establish Tribunals has been
enunciated in several judgments of this court, including L. Chandra Kumar v.
Union of India and Ors (1997) 3 SCC 261; Union of India & Anr. Vs. Delhi High
Court Bar Association & Ors. (2002) 4 SCC 275 and State of Karnataka Vs.
Vishwabharathi House Building Cooperative Society & Ors. (2003) 2 SCC 412.
It has been held that under Entries 77, 78, 95 of List I, Entry 65 of List II and
Entry 11A of List III, the Parliament and State Legislatures possess legislative
competence to effect changes in the original jurisdiction of the Supreme Court
and the High Courts.
However, in none of the decisions rendered so far the question as to what
extent such powers of High Court can be transferred to Tribunals, excepting
judicial review under Articles 226/227 has not been considered. There is as yet
no demarcating line to show that, except for powers exercised under Article 226
& 227, the Parliament has the legislative competence to vest intrinsic judicial
functions, traditionally performed by Courts in any Tribunal or Authority, outside
the judiciary. The question to be determined is whether such ‗wholesale transfer
of powers‘ as contemplated by the Companies (Second Amendment) Act, 2002
would offend the constitutional scheme of separation of powers and independence
of judiciary, so as to aggrandize one branch over the other.
Since the issues raised in the appeals are of seminal importance and are
likely to have serious impact on the very structure and independence of the
judicial system, we are of the view that the issue with regard to the constitution of
the Tribunals and the areas of their jurisdiction needs to be given a fresh look and
therefore, the matter deserves to be heard by a Constitution Bench. (Union of
India v. R. Gandhi; Appeal (civil) 3067 of 2004, Decided by Hon‘ble Supreme
Court on 18.05.2007.)
Objectives of a statute should not contravene broad constitutional scheme
enshrined under Articles 14, 19, 21 and Preamble of the Constitution.
It has been accepted without dispute that taxation laws must also pass the
test of Article 14 of the Constitution of India. It has been laid down in a large
number of decisions of this Court that a taxation statute for the reasons of
functional expediency and even otherwise, can pick and choose to tax some.
Importantly there is a rider operating on this wide power to tax and even
discriminate in taxation: that the classification thus chosen must be reasonable.
The extent of reasonability of any taxation statute lies in its efficiency to achieve
the object sought to be achieved by the statute. Thus, the classification must bear
a nexus with the object sought to be achieved [See Moopil Nair v. State of
Kerala AIR 1961 SC 552, East India Tobacco Co. v. State of Andhra Pradesh
AIR 1962 SC 1733, V. Venugopala Ravi Varma Rajah v. Union of India and
Anr. AIR 1969 SC 1094, Assistant Director of Inspection Investigation v. Kum.
A.B. Shanthi AIR 2002 SC 2188, The Associated Cement Companies Ltd. v.
Government of Andhra Pradesh and Anr. AIR 2006 SC 928]
Objectives in a statute may have a wide range. But the entire matter should
also be considered from a social angle. In any case, it cannot be the object of any
statute to be socially devisive in which event it may fall foul of broad
constitutional scheme enshrined under Articles 19, 21 as also the Preamble of the
Constitution of India. (Aashirwad Films v. Union of India & Ors; Appeal
(civil) 709 of 2004, decided by Hon‘ble Supreme Court on 18.05.2007)
Article 311 – Compliance of Natural Justice in the termination of service
when service was obtained by practicing fraud – held:
By now it is settled principle of law that the principle of natural justice
cannot be applied in a straight – jacket formula. To sustain the compliant of
violation of principles of natural justice one must establish that he was prejudiced
for non-observance of the principles of natural justice. The facts clearly disclose
that the appointment on compassionate ground was secured by playing fraud.
Fraud clocks every thing. In such admitted fact there was no necessity of issuing
show cause notice. Thus it cannot be said there was non-observance of principles
of natural justice. No prejudice whatsoever has been caused to the respondents.
(Secretary, A.P. Social Welfare Residential Educational Institutions v.
Pindiga Sridhar & ors. – Civil Appeal No. 1470/2007 decided on 19.3.2007 =
AIR 2007 SC 1527)
Whether membership of Raj Sabha is a disqualification for being
appointed Chief Minister and Ministers under Art. 161(1), (4) and
requirement of their being elected to State Legislative Assembly within a
period of six months does not apply to them – Held: No.
The absence of the expression ―from amongst members of the
Legislature‖ in Article 164(1) is indicative of the position that whereas under that
provision a non-legislator can be appointed as a Chief Minister or a Minister but
that appointment would be governed by Article 164(4), which places a restriction
on such a non-member to continue as a Minister or the Chief Minister, as the case
may be, unless he can get himself elected to the Legislature within the period of
six consecutive months from the date of his appointment. Article 164(4) is
therefore not a source of power or an enabling provision for appointment of a
non-legislator as a Minister even for a short duration. It is actually in the nature of
a disqualification or restriction for a non-member, who has been appointed as a
Chief Minister or a Minister, as the case may be, to continue in office without
getting himself elected within a period of six consecutive months. [(See S.R.
Chaudhuri v. State of Punjab and Ors. (2001 (7) SCC 126)] 14. In Dr. Janak Raj
Jai v. H.D. Deve Gowda (1997 (10) SCC 462) it was held that a member of the
Legislative Assembly could be appointed as Prime Minister. (Ashok Pandey v.
K. Mayawati and others, writ petition (Civil) 296 of 2007, decided by Hon‘ble
Supreme Court on 13.6.2007)
Contempt of Courts Act
Advocate disturbing the proceedings of the Court by creating an ugly
scene by thumping the desk and shouting in the court – Whether amount to
Contempt of Court – Held, Yes.
Disturbing the proceeding of any Court and not allowing the Court to
function normally, on part of any person is a serious matter as it threatens to
disturb the orderly functioning of the legal system. The matter becomes more
serious when the functioning of a five Judge Bench in the High Court is
disturbed. And it becomes all the more serious when such activity is by an
Advocate, who is expected to maintain the decorum and help in upholding
the dignity of the Court in the eyes of litigants and public at large. When an
advocate, being an officer of the Court, indulges in disturbing the Court
proceedings, it sends a very wrong message to the general public and tends to
shake public confidence in the system. The very existence of law Courts
depends upon the public confidence, which they inspire. Advocate held guilty
for Contempt of Court. (In re: Ram Chandra Sharma; Cri. Contempt No. 29 of
2005, decided by Allahabad High Court on 19.9.2005 = 2007 (3) ALJ 94)
Contract Act Calling of Tenders – Imposing a condition restricting choice – Whether
justified – Held – No.
Imposing a condition like purchase preference no option is left and a
monopoly is being created. The increase in effectiveness of PSEs cannot be done
on a uniform policy without examination as to whether such protection is
necessary for a particular PSE. It has to be examined individually as to whether
any differential treatment is called for. It is pointed out that there may be no
competition left if 10% margin is given. In essence, the submission is that the
preference should be given PSE specific and the margin also has to be examined
rationally.
Imposing a condition like purchase preference no option is left and a
monopoly is being created. The increase in effectiveness of PSEs cannot be done
on a uniform policy without examination as to whether such protection is
necessary for a particular PSE. It has to be examined individually as to whether
any differential treatment is called for. It is pointed out that there may be no
competition left if 10% margin is given. In essence, the submission is that the
preference should be given PSE specific and the margin also has to be examined
rationally. (Caterpillar India Pvt. Ltd v. Western Coal Fields Ltd. and Ors;
Transfer Case (civil) 4 of 2004, decided by Hon‘ble Supreme Court on
18/05/2007)
Co-operative Societies Act
S. 117 – Whether notice is mandatory to be given to Registrar before
filing the suit. Held: Yes.
In absence of notice suit would be barred for cognizance. (Ram
Shanker v. State of U.P. and others, AIR 2007 (NOC) 979 Allahabad)
Court Fee Act S. 7(iv-A) and Article 17(iii) – To relief one for declaration of share and
other for cancellation of sale deed in respect of the share claimed – Whether
S. 7(iv-A) is applicable – Held, No.
It is well settled law that the payment of Court fee is dependent entirely
upon the averments made in the plaint and the relief claimed. The averments
made in the written statement is not required to be examined. In the present case,
the plaintiffs have prayed for two reliefs, namely, that they should be declared to
be the half owners of the property in question on the basis of a registered. Will
left by their mother and the second relief is for the cancellation of the sale deed
executed by the defendant in respect of their alleged share of the property.
In my view, section 7 (iv-A) of the Court Fees Act, as applicable, in the
State of U.P. is not applicable to the present case, for the simple reason, that it is
not a suit for the cancellation of an instrument securing money and other property
having a market value. The suit is for a declaration to the effect that the plaintiffs
should be declared to be the half owners of the property in question on the basis
of a registered Will. The suit is not for the cancellation of the Will nor is the suit
for a declaration that the Will should be declared null and void. Consequently, the
judgment cited by the learned Counsel for the respondents has no application to
the present facts and circumstances of the case. Even though, the Will is an
instrument securing money, the present suit is not a suit for a declaration seeking
the Will to be null and void nor the suit has been filed for the cancellation of the
Will. Consequently, the provision of section 7 (iv-A) of the Court Fees Act is not
applicable. (Smt. Suresh and Others v. Shree Chand and Others; W.P. Nos.
311 and 25926 of 2005, decided by Allahabad High Court on 22.02.2007 =
2007 (102) RD 516)
Criminal Procedure Code
S. 125 – Maintenance allowance – Whether Maintenance allowance fixed
in the compromise can be altered u/s 127 Cr.P.C - Held –Yes.
So far as the question of variation in the amount of maintenance is
concerned the court has got ample jurisdiction to alter the amount of monthly
allowance under section 127 Cr.P.C. taking into consideration the rise in prices.
If any lump sum payment had been made by way of permanent alimony
under a compromise, then the opposite parties could not raise any further claim
under section 127 Cr.P.C. But if that is not the position, and there has been
sufficient rise in prices since that date of compromise Maintenance allowance
fixed in the compromise that can be altered u/s 127 Cr.P.C.
(Ram Narayan Gupta v. Smt. Laxmi Devi & Another Application U/s 482
No. 11923 of 2007, Judgement/Order Dated01/06/2007)
S. 156(3) Cr.P.C., Powers of Magistrate, correctness of dictum in Cr. M.
Appl. 6152/06 doubted-referred to larger Bench.
According to the ruling of Hon'ble Vinod Prasad, J. in Smt. Masuman
(supra) the Magistrate is bound to pass order for registration of the case and its
investigation by the police in such a case also, and he has got no jurisdiction to
himself judge even the prima facie veracity of the allegations before passing
the order, and that he has to pass order for registration of the case on each
and every application which contains allegations of commission of cognizable
offence . The above view of Hon‘ble Vinod Prasad, in my humble opinion, does
not appear to be in consonance with the observations of Hon'ble Supreme
Court in Suresh Chand Jain (supra) and the Full bench ruling of this court in
Ram Babu Gupta(supra). Since there is difference of opinion on this point, I am
of the view that this question should be referred to a Larger Bench for decision.
I, therefore, frame the following question for reference to the larger
Bench:
" Whether the Magistrate is bound to pass an order on each and every
application under section 156(3) Cr.P.C. containing allegations of commission
of a cognizable offence for registration of the F.I.R. and its investigation by the
police even if those allegations , prima facie, do not appear to be genuine and do
not appeal to reason, or he can exercise judicial discretion in the matter and
can pass order for treating it as 'complaint' or to reject it in suitable cases"?
Let the papers be placed before Hon'ble the Chief Justice at his
Lordship‘s kind convenience for passing suitable orders for formation of a Larger
Bench for determination of the above question.
The application 482 Cr.P.C. shall be decided on the basis of the verdict of
the larger Bench on the above point. (Sukhwasi v. State of U.P.; Cr. Misc.
Application No 9297 of 2007, Decided on18-5-2007)
Co-accused similarly situated admitted to Bail – Claim of bail on the
ground of parity – Whether should be allow? – Held, No. – Parity is not
absolute rule and should not be blindly followed – Each case should be
decided on its own merit – Bail rejected and direction for speedy disposal of
case issued.
Parity is not an absolute rule. Order dated 02.05.2007 has been perused.
Seriousness of the crime in today's world has been totally ignored and its impact
on family members of the abductee has been totally ignored, as such said order
cannot be blindly followed. Kidnapping has become an organised industry,
wherein human emotions are encashed at the best. Once applicant is member of
the said syndicate no bail can be accorded to him. However in the present case in
case charge sheet has been submitted in the matter then in that event concerned
shall court endeavour and attempt to take up the aforesaid criminal trial on
priority basis and shall proceed to decide the same preferably within next six
months from the date of presentation of certified copy of this order. It is made
clear that no unnecessarily adjournment shall be granted to parties concerned. (In
term of the aforesaid observations present bail application is rejected. (Ram
Khiladi alias Ram Khilona alias Dariwal v. State of U.P.; Crl. M. First Bail
Application No. 11346 of 2007, decided by Allahabad High Court on
04.06.2007)
S. 301 & 302 Cr.P.C. – Whether a private counsel can appear before this
Court in a bail application which is triable by the Court of Sessions – Held,
Can only appear if an endorsement of ―No Objection‖ is made by Govt.
Counsel
Section 301 run as under:-
―301. Appearance by Public Prosecutors:- (1) The Public
Prosecutor or Assistant Public Prosecutor in charge of a case may
appear and plead without any written authority before any Court in
which that case is under inquiry, trial or appeal.
(2) If any such case any private person instructs a pleader to
prosecute any person in any Court, the Public Prosecutor or
Assistant Public Prosecutor in charge of the case shall conduct the
prosecution, and the pleader so instructed shall act therein under
the directions of the Public Prosecutor or Assistant Public
Prosecutor, and may, with the permission of the Court, submit
written arguments after the evidence is closed in the case.‖
S. 302 provides as under:-
―302. Permission to conduct prosecution- (1) Any Magistrate
inquiring into or trying a case may permit the prosecution to be
conducted by any person other than a police officer below the rank
of Inspector; but no person, other than the Advocate-General or
Government Advocate or Government Advocate or a Public
Prosecutor or Assistant Public Prosecutor, shall be entitled to do so
without such permission:
Provided that no police officer shall be permitted to conduct the
prosecution if he has taken part in the investigation into the offence with
respect to which the accused is being prosecuted.
(2) Any person conducting the prosecution may do so personally or
by a pleader.‖
In view of the provisions of Section 301 Cr.P.C. as well as the ruling of
the Hon'ble Apex Court in Shiv Kumar Vs. Hukum Chand (supra) he cannot
appear without obtaining "No objection" from the AGA appearing in this case.
It is to be seen that in the aforesaid case of Shiv Kumar (supra), the private
counsel appearing for the complainant had sought permission and the public
prosecutor had made an endorsement in his favour and then the permission was
by the Sessions Judge that permission was modified by the High Court to bring
out it in accordance with the provision of Section 301 Cr.P.C.
In the present case, Sri B.B. Paul, learned counsel has simply filed a
memo of appearance on behalf of the complainant he has not obtained the "No
Objection" of the AGA nor any permission has been sought and unless and until
these defects are removed, he cannot be permitted to appear on behalf of the
complainant and participate in the proceedings. (Vishnu Prakash Agarwal v.
State of U.P.; Crl. M. Bail Application No. 11397 of 2007, decided by
Allahabad High Court on 04.06.2007)
S. 200 & 202 and S. 3/1 & 10 SC/ST Act – Whether Magistrate can
summon accused for the offence punishable under SC/ST Act without
recording complete evidence – Held, No. – Magistrate ought to record
complete evidence before summoning accused as the case punishable under
SC/ST Act is triable by Court of Special Judge which is Court of Sessions
Judge.
The learned Magistrate recorded the statement of complainant under
section 200 Cr.P.C. and he also recorded the statements of Ram Lal and Babu
Lal under section 202 Cr.P.C. Thereafter he summoned the accused under section
323,504 and 506 I.P.C. and 3(1)(10) SC/ST Act vide order dated 18.12. 2006.
Aggrieved with that order the accused applicants have filed this application under
section 482 Cr.P.C.
Learned counsel for the applicants submitted before me that the offence
under sections 3(1)(10) SC/ST Act is triable by Special Judge (SC/ST Act) and so
the case is to be committed to the Court of Sessions by the Magistrate for trial.
He submitted that since the case is triable by the court of Sessions, the
Magistrate has to record statements of all the witnesses including formal witness
like Doctor and other police witnesses etc. under section 202 Cr.P.C., but he did
not do so in this case. The complainant had filed a copy of the injury report and
he also stated that he had got X-ray of his injuries done on the advise of the
Doctor but neither the Doctor, who medically examined the complainant, was
examined under section 202 Cr.P.C., nor the X ray plate nor X- ray report was
summoned nor the Doctor, who got the X ray done, was summoned. He
further pointed out that in this case the complainant has claimed that he had sent
report of the incident to the S.P. Mirzapur on 6.7.07 by registered post and in that
report there are allegations regarding commission of the offence under
sections 3(1)(10) of SC/ST Act which is a cognizable offence, and so it was
essential for the Magistrate to have obtained report from the S.P. Mirzapur as
to whether he had received application dated 6.7.06 from the complainant or
not, and if he had received that application , what action was taken by him on
that report , and whether the matter has been got investigated or not, taking into
consideration the provisions of SC/ST Act, and the documents regarding
action , if any, taken by the S.P. Mirzapur on that report should also have been
summoned by the Magistrate, and after getting recorded statements of all the
prosecution witnesses and obtaining report of the police on the aforesaid
application of the complainant dated 6.7.06, he should have passed order in the
matter. Since the learned Magistrate has failed to comply with the above
requirements, the impugned order passed by him cannot be upheld and the same
is liable to be set aside. The application under section 482 Cr.P.C. is therefore
allowed. (Kailash Nath Pandey and another v. State of U.P. and another;
Criminal Misc. Application No. 12535 of 2007, decided by Allahabad High
Court on 05.06.2007)
Ss. 82 & 83 – Whether process U/s 82 & 83 can be issued simultaneously –
Held - No
The warrant is to be issued at the first instance and when the accused does
not appear in court even after issue of warrant, the process under sections 82
Cr.P.C. can be issued only when there is a report to this effect that he is
absconding. After issuing proclamation under sections 82 Cr.P.C. the court has to
wait for thirty days from the date of publication of proclamation, and then
attachment under section 83 Cr.P.C. is to be issued. But if the court is of the
view that the accused is about to dispose of the whole or any part of his property
or is about to remove the whole or any part of his property from the local
jurisdiction of the court, the proclamation under section 82 Cr.P.C. and
attachment u/s 83 Cr.P.C. can be issued simultaneously. In such a case, the court
must be satisfied on the basis of the evidence produced before it that these
circumstances exist and he has to mention these facts in the order for issuing
processes under sections 82 and 83 Cr.P.C. simultaneously. (Shamsher and
others v. State of U P.; Crl. Misc. Application no. 3076 of 2007, Decided by
Hon‘ble Allahabad High Court on 22-3-07)
Investigation – Whether Magistrate can direct the CBI to take over
investigation. Held:
This Court in Central Bureau of Investigation through S.P. Jaipur Vs.
State of Rajasthan & another [2001) 3 SCC 333] has laid down the principles as
to whether direction can be given to the CBI under Section 156(3) Cr.P.C. It was
held that magisterial power cannot be stretched under the said provision beyond
directing the officer incharge of a police station to conduct the investigation and
no such direction can be given to the CBI. In the instant case, the first
information report was already registered and in that sense Section 156(3) Cr.P.C.
had no application. There is substance in the plea of learned counsel for the CBI
that routine matters should not be entrusted to the CBI as the investigating
agencies of various States can effectively investigate such matters. Of course,
where it is shown that the investigating agency is not doing proper investigation
and/or that there is reason to believe that there is laxity in the investigation, a
direction may be given to the CBI to investigate the matter in appropriate cases.
This case is not one where any complexity was involved. It was a routine case of
theft of Muddamal property. The learned Sessions Judge, therefore, rightly
appears to have set aside the orders passed by the learned Chief Judicial
Magistrate. (Central Bureau of Investigation v. State of Gujarat; Appeal
(Crl.) 1181 of 2001, Decided by Hon‘ble Supreme Court on 21/06/2007)
Criminal Trial
Effect of minor contradiction – Does not make the witness unreliable.
No enmity with the accused could be proved by the evidence against the
witnesses, and hence we agree with the High Court that some minor
contradictions will not shake their testimony. (Ram Charittar & Another etc. v.
State of Uttar Pradesh etc.; Appeal (Crl.) 329 of 2006, decided on 04/04/2007)
S. 34 IPC – When can be invoked - Held,
To invoke Section 34 successfully, it must be shown that the criminal act
complained against was done by one of the accused persons in the furtherance of
the common intention of all; if it is shown, then liability for the crime may be
imposed on any one of the persons in the same manner as if the act were done by
him alone. This being the principle, it is clear to their Lordships that common
intention within the meaning of the section implies a pre-arranged plan, and to
convict the accused of an offence applying the section it should be proved that the
criminal act was done in concert pursuant to the pre-arranged plan. As has been
often observed, it is difficult if not impossible to prove the intention of an
individual; in most cases it has to be inferred from his act or conduct or other
relevant circumstances of the case.‖
In Hamlet vs. State of Kerala [2003 (10) SCC 108, vide para 17], this
Court held that to establish the common intention of several persons to attract
Section 34 IPC, the following two fundamental facts have to be established: (i)
common intention and (ii) participation of the accused in commission of the
offences. In the present case, neither common intention nor participation of the
appellants in the commission of the offence has been established beyond
reasonable doubt.
No doubt, as held by this Court in Anil Sharma vs. State of Jharkhand
[2004 (5) SCC 679, vide para 17] direct proof of common intention is seldom
available and, therefore, such intention can only be inferred from the
circumstances appearing from the proved facts of the case. However, in order to
bring home the charge of common intention the prosecution has to establish by
evidence, whether direct or circumstantial, that there was plan or meeting of
minds of all the accused persons to commit the offence for which they are charged
with the aid of Section 34 (Laxman Anaji Dhundale & another v. State of
Maharashtra; Appeal (crl.) 481 of 2007; decided by Hon‘ble Supreme Court
on 04/04/2007)
Witness related to deceased – Evidentiary value – Held,
In regard to the interestedness of the witnesses for furthering the
prosecution version, relationship is not a factor to affect the credibility of a
witness. It is more often than not that a relation would not conceal the actual
culprit and make allegations against an innocent person. Foundation has to be laid
if a plea of false implication is made. In such cases, the court has to adopt a
careful approach and analyse evidence to find out whether it is cogent and
credible. (Mano v. State of Tamil Nadu; Appeal (Crl.) 462 of 2007, decided
by Hon‘ble Supreme Court on 02.04.2007)
Whether time of death can be accurately stated; Held -No
It is now well settled that the lapse of time of taking place of death cannot be
accurately stated. In Amrit Singh v State of Punjab [AIR 2007 SC 132], it was
held:-―...Exact time as to when the occurrence took place is not known and it
would be hazardous to make any guess in this behalf.....‖ (Budh Singh v. State of
M.P.; Appeal (Crl.) 769 of 2007, Decided by Hon‘ble Supreme Court on
18/05/2007)
A defective investigation by itself cannot be a ground for acquittal.
(Budh Singh v. State of M.P.; Appeal (Crl.) 769 of 2007, Decided by Hon‘ble
Supreme Court on 18/05/2007)
Right of private defence - Whether it is necessary for the accused to plead
in so many words that he acted in self-defence - Court when should consider
the plea of right of self defence- Whether burden on accused is the same as
on prosecution; Held:
Section 96, IPC provides that nothing is an offence which is done in the
exercise of the right of private defence. The Section does not define the
expression ‗right of private defence‘. It merely indicates that nothing is an offence
which is done in the exercise of such right. Whether in a particular set of
circumstances, a person acted in the exercise of the right of private defence is a
question of fact to be determined on the facts and circumstances of each case. No
test in abstract for determining such a question can be laid down. In determining
this question of fact, the Court must consider all the surrounding circumstances.
It is not necessary for the accused to plead in so many words that he acted in self-
defence. If the circumstances show that the right of private defence was
legitimately exercised, it is open to the Court to consider such a plea. In a given
case the Court can consider it even if the accused has not taken it, if the same is
available to be considered from the material on record. Under Section 105 of the
Indian Evidence Act, 1872, the burden of proof is on the accused, who sets up the
plea of self-defence, and, in the absence of proof, it is not possible for the Court to
presume the truth of the plea of self-defence. The Court shall presume the absence
of such circumstances. It is for the accused to place necessary material on record
either by himself adducing positive evidence or by eliciting necessary facts from
the witnesses examined for the prosecution. An accused taking the plea of the
right of private defence is not required to call evidence; he can establish his plea
by reference to circumstances transpiring from the prosecution evidence itself.
The question in such a case would be a question of assessing the true effect of the
prosecution evidence, and not a question of the accused discharging any burden.
Where the right of private defence is pleaded, the defence must be a reasonable
and probable version satisfying the Court that the harm caused by the accused was
necessary for either warding off the attack or for forestalling the further
reasonable apprehension from the side of the accused. The burden of establishing
the plea of self-defence is on the accused and the burden stands discharged by
showing preponderance of probabilities is favour of that plea on the basis of the
material on record. (See Munshi Ram and Ors. v. Delhi Administration: AIR
1968 SC 702: State of Gujarat v. Bai Fatima: AIR 1975 SC 1478: State of U.P. v.
Mohd. Musheer Khan: AIR 1977 SC 2226: and Mohinder Pal Jolly v. State of
Punjab: AIR 1979 SC 577). Sections 100 to 101 define the extent of the right of
private defence of body. If a person has a right of private defence of body under
Section 97, that right extends under Section 100 to causing death if there is
reasonable apprehension that death or grievous hurt would be the consequence of
the assault. The oft quoted observation of this Court in Salim Zia v. State of U.P.
(AIR 1979 SC 391), runs as follows:
―It is true that the burden on an accused person to establish the plea
of self-defence is not as onerous as the one which lies on the
prosecution and that, while the prosecution is required to prove its
case beyond reasonable doubt, the accused need not establish the
plea to the hilt and may discharge his onus by establishing a mere
preponderance of probabilities either by laying basis for that plea
in the cross-examination of the prosecution witnesses or by
adducing defence evidence.‖
The accused need not prove the existence of the right of private defence
beyond reasonable doubt. It is enough for him to show as in a civil case that the
preponderance of probabilities is in favour of his plea. (Nanta Deb Singha
Mahapatra & Ors v. State of West Bengal; Appeal (Crl.) 828 of 2007,
Decided by Hon‘ble Supreme Court on 06/06/2007
On rejecting final report case to proceed as State Case if sufficient
evidence in C.D. and not otherwise.
A case can proceed as state case after rejection of the final report, if there
is evidence against the accused in the case diary. Where the I.O. has not properly
investigated the case. Two alternatives are open to the learned Magistrate in such
a case. He can direct the I.O. for further investigation and pass suitable order in
the matter after receiving the report on further investigation. But in that case the
accused could not be summoned on the basis of in-sufficient evidence against the
accused in the case diary, nor any order could be passed for further proceeding
with the case unless sufficient evidence was produced before the Court. The other
alternative before the Magistrate was to summon the accused after rejecting the
final report on the basis of statements of witnesses filed by the complainant in the
shape of affidavits If the Magistrate was satisfied with those affidavits, he could
take cognizance, but in that case, the case could proceed as a complaint case and
not as the state case. Since the learned Magistrate has passed an order for
summoning the accused on the basis of insufficient evidence in the case diary
holding that proper investigation was not done the orders for summoning the
accused and treating it as state case can not be sustained. (Mohd. Yusuf &
Others v. State of U.P. & Another Application U/s 482 No. 12516 of
2007Judgement dated - 05/06/2007)
Exercise of right of private defence - When right accrue, continue and
extent of the right- Explained;
The number of injuries is not always a safe criterion for determining who
the aggressor was. It cannot be stated as a universal rule that whenever the
injuries are on the body of the accused persons, a presumption must necessarily be
raised that the accused persons had caused injuries in exercise of the right of
private defence. The defence has to further establish that the injuries so caused on
the accused probabilities the version of the right of private defence. Non-
explanation of the injuries sustained by the accused at about the time of
occurrence or in the course of altercation is a very important circumstance. But
mere non-explanation of the injuries by the prosecution may not affect the
prosecution case in all cases. This principle applies to cases where the injuries
sustained by the accused are minor and superficial or where the evidence is so
clear and cogent, so independent and disinterested, so probable, consistent and
credit-worthy, that it far outweighs the effect of the omission on the part of the
prosecution to explain the injuries. [See Lakshmi Singh v. State of Bihar (AIR
1976 SC 2263)]. In this case, as the Courts below found there was not even a
single injury on the accused persons, while PW2 sustained large number of
injuries and was hospitalized for more than a month. A plea of right of private
defence cannot be based on surmises and speculation. While considering whether
the right of private defence is available to an accused, it is not relevant whether he
may have a chance to inflict severe and mortal injury on the aggressor. In order to
find whether the right of private defence is available to an accused, the entire
incident must be examined with care and viewed in its proper setting. Section 97
deals with the subject matter of right of private defence. The plea of right
comprises the body or property (i) of the person exercising the right; or (ii) of any
other person; and the right may be exercised in the case of any offence against the
body, and in the case of offences of theft, robbery, mischief or criminal trespass,
and attempts at such offences in relation to property. Section 99 lays down the
limits of the right of private defence. Sections 96 and 98 give a right of private
defence against certain offences and acts. The right given under Sections 96 to 98
and 100 to 106 is controlled by Section 99. To claim a right of private defence
extending to voluntary causing of death, the accused must shows that there were
circumstances giving rise to reasonable grounds for apprehending that either death
or grievous hurt would be caused to him. The burden is on the accused to show
that he had a right of private defence which extended to causing of death. Sections
100 and 101, IPC define the limit and extent of right of private defence.
Sections 102 and 105, IPC deal with commencement and continuance of
the right of private defence of body and property respectively. The right
commences, as soon as a reasonable apprehension of danger to the body arises
from an attempt, or threat, or commit the offence, although the offence may not
have been committed but not until that there is that reasonable apprehension. The
right lasts so long as the reasonable apprehension of the danger to the body
continues. In Jai Dev. v. State of Punjab (AIR 1963 SC 612), it was observed that
as soon as the cause for reasonable apprehension disappears and the threat has
either been destroyed or has been put to route, there can be no occasion to
exercise the right of private defence.
In order to find whether right of private defence is available or not, the
injuries received by the accused, the imminence of threat to his safety, the injuries
caused by the accused and the circumstances whether the accused had time to
have recourse to public authorities are all relevant factors to be considered. Thus,
running to house, fetching a tabli and assaulting the deceased are by no means a
matter of course. These acts bear stamp of a design to kill and take the case out of
the purview of private defence. Similar view was expressed by this Court in Biran
Singh v. State of Bihar (AIR 1975 SC 87) and recently in Sekar @Raja Sekharan
v. State represented by Inspector of Police, Tamil Nadu (2002 (7) Supreme 124).
(Nanta Deb Singha Mahapatra & Ors v. State of West Bengal; Appeal (Crl.)
828 of 2007, Decided by Hon‘ble Supreme Court on 06/06/2007)
Medical Evidence - Eye witness account at variance with the medical
evidence, whether can be the basis of acquittal- Held -yes.
The post-mortem was conducted by a team of doctors. It was noted that
there was no external or internal injury and the cause of death is unknown. On
forensic examination presence of Ethyl Alcohol was noticed. If the deceased had
been subjected to kicks on vital parts or slapped as was stated by PW-6 there
certainly would have been marks of injury. Doctor‘s evidence clearly rules this
out. Further the evidence of PW-6 was rightly held to be unreliable by the High
Court. During investigation she has stated that the accused had slapped the
deceased. There was no mention about the kick on the thigh or that the accused
kicked the deceased after he fell down. Further the evidence of PW-2 (brother of
PW-6) was to the effect that PW-6 had told him that the deceased was assaulted
by Sub Inspector Pandey and the accused. Evidence of PW-6 is entirely different.
It is true that in the case of custodial violence there would be less
possibility of getting direct evidence, and direct independent witness. This was
the position as indicated by this Court in State of M.P. v. Shyamsunder Trivedi
and Ors. (1995 (4) SCC 262). There were injuries on the body of the deceased in
that case. In the present case medical evidence clearly shows that there was no
external or internal injury.
Above being the position, the judgment of acquittal passed by the High
Court does not suffer from any infirmity to warrant interference. (State of
Madhya Pradesh v. Sewa Singh; Appeal (Crl.) 1275 of 2001, Decided by
Hon‘ble Supreme Court on 13/06/2007)
Value of Identification - The photograph of accused was shown to the
witnesses before the T.I. Parade –Effect – Held -
Wittnesses admitted in cross-examination that the Police had shown them
the photograph of Chamru. This would render the entire proceedings as useless.
and conviction cannot be based on such evidence. (State of Madhya Pradesh v.
Chamru @ Bhagwandas etc.; Appeal (crl.) 743-744 of 2002, Decided on:
19/06/2007)
Old age and long pendency of a Criminal Case – Whether sufficient to
take lenient view in the matter of punishment – Held – No.
So far as sentence is concerned; Yogtendra Pal was about 58 years old on
12.9.80 when his statement was recorded under Section 313 Cr.P.C. His two
brothers, namely Onkar Nath and Siya Ram were about 48 years and 45 years
respectively. Now after expiry of about 27 years, they are 85, 75 and 72 years
between their conviction and disposal of this appeal, we are inclined to take a
lenient view and are of the opinion that ends of justice would be met if they are
sentenced to the period already undergone by them and to pay a fine of Rs.
4,000/-. (Yogendra Pal and Others v. State of U.P.; Criminal Appeal No. 561
of 1981, Decided by Hon‘ble Allahabad High Court on 28.6.2007)
Education U.P. Secondary Education Selection Board Act, 1982 – S. 2(a) – Whether
word ‗Teacher‘ includes a temporary teacher? – Held, Yes.
The word "teacher" has not been defined under the Intermediate Education
Act, but under Section 2(a) of the U.P. Secondary Education Selection Board Act,
1982 "teachers" means-
"2(k) "Teacher" means a person employed for imparting instruction in an
institution, and includes a Principal or a Head Master".
Under section 2(e) of the U.P. High Schools and Intermediate Colleges
(Payment of Salaries of Teachers and other Employees) Act, 1971, the teacher has
been defined as:-
"2(e) "Teacher" of an institution means a Principal, Head Master or other
teacher in respect of whose employment maintenance grant is paid by the
State Government to the institution, and includes any other teacher
employed in fulfilment of the conditions of recognition of the institution
or its recognition in a new subject or for a higher class or as a result of the
opening with the approval of the Inspector of a new section in an existing
class."
Under section 2(18) of the U.P. State Universities Act, 1873 the teacher
has been defined as :-
"2(18) 'Teacher' means a person employed for imparting instruction or
guiding or conducting research in the university or in an Institute or in a
constituent, affiliated or associated college, and includes a Principal or a
Director."
In view of the aforesaid, the irresistible conclusion is, that a teacher would
include not only a permanent teacher but also a temporary teacher, who is
employed for imparting instructions in an institution. (Vinod Kumar Kushwaha
v. The Vice Chancellor, Bundelkhand University, Jhansi; C.M.W.P. No
40247 of 2005, decided by Allahabad High Court on 02.03.2007)
Essential Commodities Act
S. 7(2), Proviso added by way of amendment – Authorising court to
impose punishment less than three months for special reasons to be recorded
- Whether prospective or retrospective. Held:
Unless specifically provided law has a prospective effect. So, at the
relevant point of time when the offence was committed by the appellant –
accused, the proviso cannot be said to be in existence. The Court, therefore, is not
inclined to show any leniency to the accused – appellant because it is not legally
possible for the Court to impose punishment less than the minimum prescribed.
(Patel Jagdish Haribhai v. State of Gujarat; 2007 Cri. L J 1297).
Evidence Act Recovered weapon not sent for forensic examination – Effect – Held,
If the recovery of the weapons was after a long period and those were not sent for
forensic examination that does not in any way dilute the evidentiary value of the
prosecution version. (Mano v. State of Tamil Nadu; Appeal (Crl.) 462 of 2007,
decided by Hon‘ble Supreme Court on 02.04.2007)
Whether dying declaration can be made the basis of conviction. – Held,
Though conviction can be raised solely on the dying declaration without any
corroboration the same should not be suffering from any infirmity. (State of
Rajasthan v. Wakteng; Appeal (crl.) 677 of 2002, decided by Hon‘ble
Supreme Court on 07/06/2007)
Whether statement recorded by a police personnel and having thumb
impression of the deceased falls within the category of dying declaration-
Held,
Merely because a statement is recorded by a police personnel and the
thumb impression of the deceased was affixed it cannot straightaway be rejected.
(See State of Rajasthan v. Teja Ram (1999 (3) SCC 507), Rajik Ram v. Jaswant
Singh Chauhan (AIR 1975 SC 667) and famous Tahsildar‘s case, Tahsildar Singh
v. State of U.P; (AIR 1959 SC 1012). In Paras Yadav and Ors. v. State of Bihar
(1999 (2) SCC 126) it was held that the statement of a deceased recorded by a
police officer in a routine manner as a complaint and not as a dying declaration
can be taken as a dying declaration after the death of the injured if he was found
to be in a fit state of health to make a statement. If the dying declaration is
recorded by an investigating officer the same can be relied upon if the evidence of
the prosecution witness is clearly established beyond reasonable doubt that the
deceased was conscious and he was removed to the hospital and he was in a fit
state of health to make the statement. In the instant case, the position appears to
be different. (State of Rajasthan v. Wakteng; Appeal (Crl.) 677 of 2002,
decided by Hon‘ble Supreme Court on 07/06/2007)
When dying declaration can be relied upon - Circumstance enumerated
by Hon‘ble Supreme Court;
While great solemnity and sanctity is attached to the words of dying man
because a person on the verge of death is not likely to tell lie or to concoct a case
so as to implicate an innocent person but the Court has to be careful to ensure that
the statement was not the result of either tutoring, prompting or a product of the
imagination. It is, therefore, essential that the Court must be satisfied that the
deceased was in a fit state of mind to make the statement, had clear capacity to
observe and identify the assailant and that he was making the statement without
any influence or rancor. Once the Court is satisfied that the dying declaration is
true and voluntary it is sufficient for the purpose of conviction. (State of
Rajasthan v. Wakteng; Appeal (Crl.) 677 of 2002, decided by Hon‘ble
Supreme Court on 07/06/2007)
Confession - Explained
The expression ‗confession‘ is not defined in the Evidence Act,
‗Confession‘ is a statement made by an accused, which must either admit in terms
the offence, or at any rate substantially all the facts, which constitute the offence.
The dictionary meaning of the word ‗statement‘ is ―act of stating; that which is
stated; a formal account, declaration of facts etc.‖ The word ‗statement‘ includes
both oral and written statement. Communication to another is not however an
essential component to constitute a ‗statement‘. An accused might have been
over-heard uttering to himself or saying to his wife or any other person in
confidence. He might have also uttered something in soliloquy. He might also
keep a note in writing. All the aforesaid nevertheless constitute a statement. It
such statement is an admission of guilt, it would amount to a confession whether
is communicated to another or not. This very question came up for consideration
before this Court in Sahoo v. State of Uttar Pradesh, AIR 1966 SC 40: (1966 Cr1
U 68). After referring to some passages written by well-known authors on the
―Law of Evidence‖ Subba Rao, J. (as he then was) held that ―communication is
not a necessary ingredient to constitute confession‖. In paragraph 5 of the
judgment, this Court held as follows:
...Admissions and confessions are exceptions to the hearsay rule.
The Evidence Act places them in the category of relevant evidence
presumably on the ground that as they are declarations against the
interest of the person making them, they are probably true. The
probative value of an admission or a confession goes not to depend
upon its communication to another, though, just like any other
piece of evidence, it can be admitted in evidence only on proof.
This proof in the case of oral admission or confession can be
offered only by witnesses who heard the admission or confession.
as the case may be.... If, as we have said, statement is the genus
and confession is only a sub-species of that genus, we do not see
any reason why the statement implied in the confession should be
given a different meaning. We, therefore, hold that a statement,
whether communicated or not, admitting guilt is a confession of
guilt
(Ajay Singh v. State of Maharashtra; Appeal (crl.) 829 of 2007,
Decided by Hon‘ble Supreme Court on 06/06/2007)
Extra Judicial Confession – Whether sufficient to base a conviction –
Held,
While dealing with a stand of extra judicial confession, Court has to
satisfy that the same was voluntary and without any coercion and undue
influence. Extra judicial confession can form the basis of conviction if persons
before whom it is stated to be made appear to be unbiased and not even remotely
inimical to the accused. Where there is material to show animosity, Court has to
proceed cautiously and find out whether confession just like any other evidence
depends on veracity of witness to whom it is made. It is not invariable that the
Court should not accept such evidence if actual words as claimed to have been
spoken are not reproduced and the substance is given. It will depend on
circumstance of the case. If substance itself is sufficient to prove culpability and
there is no ambiguity about import of the statement made by accused, evidence
can be acted upon even though substance and not actual words have been stated.
Human mind is not a tape recorder, which records what has been spoken word by
word. The witness should be able to say as nearly as possible actual words spoken
by the accused. That would rule out possibility of erroneous interpretation of any
ambiguous statement. If word-by-word repetition of statement of the case is
insisted upon, more often than not evidentiary value of extra judicial confession
has to be thrown out as unreliable and not useful. That cannot be a requirement in
law. There can be some persons who have a good memory and may be able to
repost exact words and there may be many who are possessed of normal memory
and do so. It is for the Court to judge credibility of the witness‘s capacity and
thereafter to decide whether his or her evidence has to be accepted or not. If Court
believes witnesses before whom confession is made and is satisfied confession
was voluntary basing on such evidence, conviction can be founded. Such
confession should be clear, specific and unambiguous. (Ajay Singh v. State of
Maharashtra; Appeal (Crl.) 829 of 2007, Decided by Hon‘ble Supreme Court
on 06/06/2007)
What transpired at the hearing, recorded in the judgment of the Court -
whether conclusive of the facts so stated – Held - Yes
Statements of fact as to what transpired at the hearing, recorded in the
judgment of the Court, are conclusive of the facts so stated and no one can
contradict such statements by affidavit or other evidence. If a party thinks that the
happenings in Court have been wrongly recorded in a judgment, it is incumbent
upon the party, while the matter is still fresh in the minds of the Judges, to call the
attention of the very Judge who has made the record. That is the only way to have
the record corrected. If no such step is taken, the matter must necessarily end
there. It is not open to the appellants to contend before this Court to the contrary.
(Jagvir Singh & Ors. v. State (Delhi Admn.); Appeal (Crl.), Decided by
Hon‘ble Supreme Court on 5.6.2007)
S. 3 – Appreciation of Evidence – (1) Whether variance in evidence as to
the role played by the accused persons is sufficient to disbelieve witness.
Held: No. (2) Principle of appreciation of evidence enumerated.
The golden thread which runs through the web of administration of justice
in criminal cases is that if two views are possible on the evidence adduced in the
case, one pointing to the guilt of the accused and the other to his innocence, the
view which is favourable to the accused should be adopted. The paramount
consideration of the Court is to ensure that miscarriage of justice is prevented. A
miscarriage of justice which may arise from acquittal of the guilty is no less than
from the conviction of an innocent. (State of Haryana v. Surender & Ors. etc.;
Appeal (Crl.) 618-620 of 2001, decided by Hon‘ble Supreme Court on
01/06/2007)
S. 9 – Identification parade – Identification in Court – Value – How to
appreciate identification evidence – Legal Position explained:
As was observed by this Court in Matru v. State of U.P. (1971 (2) SCC
75) identification tests do not constitute substantive evidence. They are primarily
meant for the purpose of helping the investigating agency with an assurance that
their progress with the investigation into the offence is proceeding on the right
lines. The identification can only be used as corroborative of the statement in
court. (See: Santokh Singh v. Izhar Hussain (1973 (2) SCC 406). The necessity
for holding an identification parade can arise only when the accused are not
previously known to the witnesses. The whole idea of a test identification parade
is that witnesses who claim to have seen the culprits at the time of occurrence are
to identify them from the midst of other persons without any aid or any other
source. The test is done to check upon their veracity. In other words, the main
object of holding an identification parade, during the investigation stage, is to test
the memory of the witnesses based upon first impression and also to enable the
prosecution to decide whether all or any of them could be cited as eyewitnesses of
the crime. The identification proceedings are in the nature of tests and
significantly, therefore, there is no provision for it in the Code and the Evidence
Act. It is desirable that a test identification parade should be conducted as soon as
after the arrest of the accused. This becomes necessary to eliminate the possibility
of the accused being shown to the witnesses prior to the test identification parade.
This is a very common plea of the accused and, therefore, the prosecution has to
be cautious to ensure that there is no scope for making such allegation. If,
however, circumstances are beyond control and there is some delay, it cannot be
said to be fatal to the prosecution.
It is trite to say that the substantive evidence is the evidence of
identification in Court. Apart from the clear provisions of Section 9 of the
Evidence Act, the position in law is well settled by a catena of decisions of this
Court. The facts, which establish the identity of the accused persons, are relevant
under Section 9 of the Evidence Act. As a general rule, the substantive evidence
of a witness is the statement made in Court. The evidence of mere identification
of the accused person at the trial for the first time is from its very nature
inherently of a weak character. The purpose of a prior test identification,
therefore, is to test and strengthen the trustworthiness of that evidence. It is
accordingly considered a safe rule of prudence to generally look for corroboration
of the sworn testimony of witnesses in Court as to the identity of the accused who
are strangers to them, in the form of earlier identification proceedings. This rule
of prudence, however, is subject to exceptions, when, for example, the Court is
impressed by a particular witness on whose testimony it can safely rely, without
such or other corroboration. The identification parades belong to the stage of
investigation, and there is no provision in the Code which obliges the
investigating agency to hold or confers a right upon the accused to claim, a test
identification parade. They do not constitute substantive evidence and these
parades are essentially governed by Section 162 of the Code. Failure to hold a test
identification parade would not make inadmissible the evidence of identification
in Court. The weight to be attached to such identification should be a matter for
the Courts of fact. In appropriate cases it may accept the evidence of identification
even without insisting on corroboration. [See Kanta Prashad v. Delhi
Administration (AIR 1958 SC 350), Vaikuntam Chandrappa and others v. State of
Andhra Pradesh (AIR 1960 SC 1340), Budhsen and another v. State of U.P. (AIR
1970 SC 1321) and Rameshwar Singh v. State of Jammu and Kashmir (AIR 1972
SC 102)].
In Jadunath Singh and another v. The State of Uttar Pradesh (1970) 3 SCC
518), the submission that absence of test identification parade in all cases is fatal,
was repelled by this Court after exhaustive considerations of the authorities on the
subject. That was a case where the witnesses had seen the accused over a period
of time. The High Court had found that the witnesses were independent witnesses
having no affinity with deceased and entertained no animosity towards the
appellant. They had claimed to have known the appellants for the last 6-7 years as
they had been frequently visiting the town of Bewar.
This Court noticed the observations in an earlier unreported decision of
this Court in Parkash Chand Sogani v. The State of Rajasthan (Criminal Appeal
No. 92 of 1956 decided on January 15, 1957), wherein it was observed :- ―It is
also the defence case that Shiv Lal did not know the appellant. But on a reading of
the evidence of P.W. 7 it seems to us clear that Shiv Lal knew the appellant by
sight. Though he made a mistake about his name by referring to him as Kailash
Chandra, it was within the knowledge of Shiv Lal that the appellant was a brother
of Manak Chand and he identified him as such. These circumstances are quite
enough to show that the absence of the identification parade would not vitiate the
evidence. A person who is well-known by sight as the brother of Manak Chand,
even before the commission of the occurrence, need not be put before an
identification parade in order to be marked out. We do not think that there is any
justification for the contention that the absence of the identification parade or a
mistake made as to his name, would be necessarily fatal to the prosecution case in
the circumstances.‖ The Court concluded:
―It seems to us that it has been clearly laid down by this Court, in
Parkash Chand Sogani v. The State of Rajasthan (supra) (AIR Cri
LJ), that the absence of test identification in all cases is not fatal
and if the accused person is well-known by sight it would be waste
of time to put him up for identification. Of course if the prosecution
fails to hold an identification on the plea that the witnesses already
knew the accused well and it transpires in the course of the trial
that the witnesses did not know the accused previously, the
prosecution would run the risk of losing its case.‖
In Harbajan Singh v. State of Jammu and Kashmir (1975) 4 SCC 480),
though a test identification parade was not held, this Court upheld the conviction
on the basis of the identification in Court corroborated by other circumstantial
evidence. In that case it was found that the appellant and one Gurmukh Singh
were absent at the time of roll call and when they were arrested on the night of
16th
December, 1971 their rifles smelt of fresh gunpowder and that the empty
cartridge case which was found at the scene of offence bore distinctive markings
showing that the bullet which killed the deceased was fired from the rifle of the
appellant. Noticing these circumstances this Court held:- ―In view of this
corroborative evidence we find no substance in the argument urged on behalf of
the appellant that the Investigating Officer ought to have held an identification
parade and that the failure of Munshi Ram to mention the names of the two
accused to the neighbours who came to the scene immediately after the
occurrence shows that his story cannot be true.
As observed by this Court in Jadunath Singh v. State of U.P. (AIR 1971
SC 363) absence of test identification is not necessarily fatal. The fact that
Munshi Ram did not disclose the names of the two accused to the villages only
shows that the accused were not previously known to him and the story that the
accused referred to each other by their respective names during the course of the
incident contains an element of exaggeration. The case does not rest on the
evidence of Munshi Ram alone and the corroborative circumstances to which we
have referred to above lend enough assurance to the implication of the appellant.‖
It is no doubt true that much evidentiary value cannot be attached to the
identification of the accused in Court where identifying witness is a total stranger
who had just a fleeting glimpse of the person identified or who had no particular
reason to remember the person concerned, if the identification is made for the first
time in Court.
In Ram Nath Mahto v. State of Bihar (1996) 8 SCC 630) this Court upheld
the conviction of the appellant even when the witness while deposing in Court did
not identify the accused out of fear, though he had identified him in the test
identification parade. This Court noticed the observations of the trial Judge who
had recorded his remarks about the demeanour that the witness perhaps was afraid
of the accused as he was trembling at the stare of Ram Nath-accused. This Court
also relied upon the evidence of the Magistrate, PW-7 who had conducted the test
identification parade in which the witness had identified the appellant. This Court
found, that in the circumstances if the Courts below had convicted the appellant,
there was no reason to interfere.
In Suresh Chandra Bahri v. State of Bihar (1995 Supp (1) SCC 80), this
Court held that it is well settled that substantive evidence of the witness is his
evidence in the Court but when the accused person is not previously known to the
witness concerned then identification of the accused by the witness soon after his
arrest is of great importance because it furnishes an assurance that the
investigation is proceeding on right lines in addition to furnishing corroboration
of the evidence to be given by the witness later in Court at the trial. From this
point of view it is a matter of great importance, both for the investigating agency
and for the accused and a fortiori for the proper administration of justice that such
identification is held without avoidable and unreasonable delay after the arrest of
the accused. It is in adopting this course alone that justice and fair play can be
assured both to the accused as well as to the prosecution. Thereafter this Court
observed:- ―But the position may be different when the accused or a culprit who
stands trial had been seen not once but for quite a number of times at different
point of time and places which fact may do away with the necessity of a TI
parade.‖
In State of Uttar Pradesh v. Boota Singh and others (1979 (1) SCC 31),
this Court observed that the evidence of identification becomes stronger if the
witness has an opportunity of seeing the accused not for a few minutes but for
some length of time, in broad daylight, when he would be able to note the features
of the accused more carefully than on seeing the accused in a dark night for a few
minutes.
In Ramanbhai Naranbhai Patel and others v. State of Gujarat (2000 (1)
SCC 358) after considering the earlier decisions this Court observed:- ―It becomes
at once clear that the aforesaid observations were made in the light of the peculiar
facts and circumstances wherein the police is said to have given the names of the
accused to the witnesses. Under these circumstances, identification of such a
named accused only in the Court when the accused was not known earlier to the
witness had to be treated as valueless. The said decision, in turn, relied upon an
earlier decision of this Court in the case of State (Delhi Admn.) v. V. C. Shukla
(AIR 1980 SC 1382) wherein also Fazal Ali, J. speaking for a three-Judge Bench
made similar observations in this regard. In that case the evidence of the witness
in the Court and his identifying the accused only in the Court without previous
identification parade was found to be a valueless exercise. The observations
made therein were confined to the nature of the evidence deposed to by the said
eye-witnesses. It, therefore, cannot be held, as tried to be submitted by learned
Counsel for the appellants, that in the absence of a test identification parade, the
evidence of an eye-witness identifying the accused would become inadmissible or
totally useless; whether the evidence deserves any credence or not would always
depend on the facts and circumstances of each case. It is, of course, true as
submitted by learned Counsel for the appellants that the later decisions of this
Court in the case of Rajesh Govind Jagesha v. State of Maharashtra (AIR 2000
SC 160) and State of H.P. v. Lekh Raj (AIR 1999 SC 3916), had not considered
the aforesaid three-Judge Bench decisions of this Court. However, in our view,
the ratio of the aforesaid later decisions of this Court cannot be said to be running
counter to what is decided by the earlier three-Judge Bench judgments on the
facts and circumstances examined by the Court while rendering these decisions.
But even assuming as submitted by learned Counsel for the appellants that the
evidence of, these two injured witnesses i.e. Bhogilal Ranchhodbhai and
Karsanbhai Vallabhbhai identifying the accused in the Court may be treated to be
of no assistance to the prosecution, the fact remains that these eye-witnesses were
seriously injured and they could have easily seen the faces of the persons
assaulting them and their appearance and identity would well within imprinted in
their minds especially when they were assaulted in broad daylight. They could not
be said to be interested in roping in innocent persons by shielding the real accused
who had assaulted them.‖
These aspects were recently highlighted in Munshi Singh Gautam (dead)
and Ors. v. State of M.P. ( 2005 (9) SCC 631).17. In the instant case the accused
persons have been identified by PWs 1 and 11 and no infirmity was noticed in
their evidence. Additionally, evidence of PW 22 clearly shows that all requisite
formalities with regard to Test Identification Parade were adopted and followed.
In that view of the matter there is no merit in the appeal which is accordingly
dismissed. (Heera & Anr v. State of Rajasthan; Appeal (Crl.) 1307 of 2006,
Decided by Hon‘ble Supreme Court on 20/06/2007)
Family Law / Matrimonial Disputes
Burden of Proof in Matrimonial Cases – Concept of Proof beyond
reasonable doubt – whether applicable to Matrimonial Dispute – Held: No.
The concept, a proof beyond the shadow of doubt, is to be applied to
criminal trials and not to civil matters and certainly not to matters of such delicate
personal relationship as those of husband and wife. Therefore, one has to see what
are the probabilities in the case and legal cruelty has to be found out, not merely
as a matter of fact, but as the effect on the mind of the complainant spouse
because of the acts or omissions of the other. Cruelty may be physical or
corporeal or may be mental. In physical cruelty, there can be tangible and direct
evidence, but in the case of mental cruelty there may not at the same time be
direct evidence. In cases where there is no direct evidence courts are required to
probe into the mental process and mental effect of incidents that are brought out
in evidence. It is in this view that one has to consider the evidence in matrimonial
matters. (Smt. Mayadevi v. Jagdish Prasad; Civil Appeal No. 877 of 2007,
decided by Hon‘ble Supreme Court on 21.2.2007 = AIR 2007 S.C. 1426)
Guardians and Wards Act
S. 30 – Transfer of immovable property of ward Guardian - Previous
permission of ―Court not taken - Transfer would be viodable
In the plaint, allegations were that mother of the plaintiff was appointed as
guardian by the District Judge. Under S. 29 of Guardians and Wards Act, 1890, a
guardian appointed or declared by the Court shall not without the previous
permission of the Court, transfer immovable property of his ward. However,
under S. 30 of the said Act. Accordingly, if the plaint allegations are proved then
sale deeds will the voidable. In view of the above, it is only the Civil Court which
has got the jurisdiction to try the suits. (Abdul Qayyum v. II Additional District
Judge Meerut & Ors. 2007 (2) ALJ 332)
Hindu Marriage Act S. 27 – Whether Stridhan falls under S. 27 – Held, No.
Section 27 is not meant for Stridhan and is meant for those items only
which are presented jointly to the bride and bride groom. Section 27 of Hindu
Marriage Act is not applicable to Stridhans, which are different from the items
mentioned under section 27 of the Hindu Marriage Act. (Satish Rajput,
Advocate & Others v. State of U.P. & Another; Application U/s. 482 No.
12467 of 2007, decided by Allahabad High Court on 04.06.2007)
Hindu Minority and Guardianship Act
S. 8 - Permission by guardian to sell landed property of minor. Market value
of land assessed to be Rs. 2,00,000 per acer. Proposed sale was in the interest of
minor – permission granted to sale at the rate of not less than Rs. 2,00,000/- per
acer. (Gobinder Singh v. General Public, AIR 2007 (NOC) 792 (P&H)
Indian Penal Code Ss. 302, 498A IPC and Ss. 3, 4 and 6 of the Dowry Prohibition Act, 1961 -
To constitute offence under S. 498-A whether it is necessary that the demand
should be for dowry alone – Held - No
Section 498-A does not specifically speak of a dowry demand. It speaks of
unlawful demand for property and valuable articles.
Section 498-A IPC was enacted by the Criminal Law (Second
Amendment) 1983 with effect from 25.12.1983. The word ―cruelty‖ has been
explained in Section 498-A; so also harassment. ―Cruelty‖ under the Explanation
deals with two types of circumstances. Clause (a) refers to willful conduct leading
to suicide or grave injury or danger to life, limb or health which can be either
mental or physical of the woman. Clause (b) relates to harassment with a view to
coerce her or any person related to her to meet any unlawful demand for any
property or valuable or is on account of failure to meet such demand.
There is no evidence on record on this aspect of any such demand. Even in
the letters, on which prosecution placed heavy reliance, there is no reference to
any demand of dowry or for that matter of any nature. In fact in Ex. P-2, the
deceased had written to her mother that she had promised to pay for some articles
which the mother-in-law i.e. A-1 had purchased. She had stated that she was
embarrassed that her parents were not paying the money, though A-1 had never
asked for it. This was not a case of any demand for property or valuable security.
On the contrary, the deceased had objected to her parents not paying for
something which the A-1 had spent the money. To similar effect was letter Ex.P-
3. It is evident from the evidence on record that half of the marriage expenses
were borne by the accused-appellant and his family. Even Ext. P-4 on which
learned counsel for the State placed strong reliance does not speak of any demand.
It only speaks of a apprehension of a second marriage. Though, he submitted that
the demand of dowry is in the background and has to be inferred, the plea is
clearly unacceptable in the absence of any material to substantiate that plea. This
letter was also written three years prior to the occurrence. (Shivanand Mallappa
Koti v. State of Karnataka; Appeal (Crl.) 145 of 2002, Decided by Hon‘ble
Supreme Court on 5.6.2007.
S. 302 & 304A – Applicability of S. 304A & 302 explained:
Coming to the plea of the applicability of Section 304A it is to be noted
that the said provision relates to death caused by negligence. Section 304A
applies to cases where there is no intention to cause death and no knowledge that
the act done in all probabilities will cause death. The provision relates to offences
outside the range of Sections 299 and 300 IPC. It applies only to such acts, which
are rash and negligent and are directly the cause of death of another person.
Rashness and negligence are essential elements under Section 304A. It carves out
a specific offence where death is caused by doing a rash or negligent act and that
act does not amount to culpable homicide under Section 299 or murder in Section
300 IPC. Doing an act with the intent to kill a person or knowledge that doing an
act was likely to cause a persons‘ death is culpable homicide. When the intent or
knowledge is the direct motivating force of the act, Section 304A IPC has to make
room for the graver and more serious charge of culpable homicide.
In order to be encompassed by the protection under Section 304A there
should be neither intention nor knowledge to cause death. When any of these two
elements is found to be present, Section 304A has no application.
Coming to the plea of the applicability of Section 304A it is to be noted
that the said provision relates to death caused by negligence. Section 304A
applies to cases where there is no intention to cause death and no knowledge that
the act done in all probabilities will cause death. The provision relates to offences
outside the range of Sections 299 and 300 IPC. It applies only to such acts which
are rash and negligent and are directly the cause of death of another person.
Rashness and negligence are essential elements under Section 304A. It carves out
a specific offence where death is caused by doing a rash or negligent act and that
act does not amount to culpable homicide under Section 299 or murder in Section
300 IPC. Doing an act with the intent to kill a person or knowledge that doing an
act was likely to cause a persons‘ death is culpable homicide. When the intent or
knowledge is the direct motivating force of the act, Section 304A IPC has to make
room for the graver and more serious charge of culpable homicide.
In order to be encompassed by the protection under Section 304A there
should be neither intention nor knowledge to cause death. When any of these two
elements is found to be present, Section 304A has no application. (State of
Rajasthan v. Chittarmal; Appeal (Crl.) 477 of 2001, Decided by Hon‘ble
Supreme Court on 21/06/2007)
S. 304A & S. 304 Part II IPC – Analysed//Scope and applicability of S.
304 Part II and 304A IPC explained:
Section 304A speaks of causing death by negligence. This section applies
to rash and negligence acts and does not apply to cases where death has been
voluntarily caused. This section obviously does not apply to cases where there is
an intention to cause death or knowledge that the act will in all probability cause
death. It only applies to cases in which without any such intention or knowledge
death is caused by what is described as a rash and negligent act. A negligent act
is an act done without doing something which a reasonable man guided upon
those considerations which ordinarily regulate the conduct of human affairs would
do or act which a prudent or reasonable man would not do in the circumstances
attending it. A rash act is a negligent act done precipitately. Negligence is the
genes, of which rashness is the species. It has sometimes been observed that in
rashness the action is done precipitately that the mischievous or illegal
consequences may fall, but with a hope that they will not. Lord Atkin in Andrews
v. Director of Public Prosecutions (1937) AC 576 at p.583 = 2 All E.R. 552)
observed as under:
―Simple lack of care such as will constitute civil liability is not
enough. For purposes of the criminal law there are degrees of
negligence; and a very high degree of negligence is required to be
proved before the felony is established. Probably of all the epithets
that can be applied ‗recklessness‘ most nearly covers the case. It is
difficult to visualize a case of death caused by reckless driving in
the connotation of that term in ordinary speech which would not
justify a conviction for manslaughter; but it is probably not all
embracing, for ‗recklessness‘ suggests an indifference to risk
whereas the accused may have appreciated the risk and intended to
avoid it, and yet shown in the means adopted to avoid the risk such
a high degree of negligence as would justify a conviction.‖
Section 304-A applies to cases where there is no intention to cause death
and no knowledge that the act done in all probability will cause death. The
provision is directed at offences outside the range of Sections 299 and 300 IPC.
The provision applies only to such acts which are rash and negligent and are
directly cause of death of another person. Negligence and rashness are essential
elements under Section 304-A. Culpable negligence lies in the failure to exercise
reasonable and proper care and the extent of its reasonableness will always
depend upon the circumstances of each case. Rashness means doing an act with
the consciousness of a risk that evil consequences will follow but with the hope
that it will not. Negligence is a breach of duty imposed by law. In criminal cases,
the amount and degree of negligence are determining factors. A question whether
the accused‘s conduct amounted to culpable rashness or negligence depends
directly on the question as to what is the amount of care and circumspection
which a prudent and reasonable man would consider to be sufficient considering
all the circumstances of the case. Criminal rashness means hazarding a dangerous
or wanton act with the knowledge that it is dangerous or wanton and the further
knowledge that it may cause injury but done without any intention to cause injury
or knowledge that it would probably be caused.
As noted above, ―Rashness‖ consists in hazarding a dangerous or wanton
act with the knowledge that it is so, and that it may cause injury. The criminality
lies in such a case in running the risk of doing such an act with recklessness or
indifference as to the consequences. Criminal negligence on the other hand, is the
gross and culpable neglect or failure to exercise that reasonable and proper care
and precaution to guard against injury either to the public generally or to an
individual in particular, which, having regard to all the circumstances out of
which the charge has arisen it was the imperative duty of the accused person to
have adopted.The distinction has been very aptly pointed out by Holloway J. in
these words:
―Culpable rashness is acting with the consciousness that the
mischievous and illegal consequences may follow, but with the
hope that they will not, and often with the belief that the actor has
taken sufficient precautions to prevent their happening. The
imputability arises from acting despite the consciousness. Culpable
negligence is acting without the consciousness that the illegal and
mischievous effect will follow, but in circumstances which show
that the actor has not exercised the caution incumbent upon him
and that if he had, he would have had the consciousness. The
imputability arises from the negligence of the civic duty of
circumspection.‖ (See In re: Nidamorti Nagabhusanam 7 Mad.
H.C.R. 119)
Vehicular accidents resulting in deaths and injuries are spiraling. The
situation in India is not very different.About 82,000 persons were killed on Indian
roads in 2002. Official statistics regarding serious injuries are not reliable as they
underestimate the actual number, but it is estimated that the number of people
hospitalized may be 15-20 times the number killed. In a do-nothing scenario, it is
possible that India will have 1,20,000 - 1,30,000 road traffic fatalities in the year
2008 and possibly 1,50,000 - 1,75,000 in 2015. Our vision should aim at reducing
the fatalities to less than 1,00,000 in the short term (2008) and less than 70,000 in
the long term (2015).
In developing countries, death rates from vehicle crashes are rising, and
disproportionately high in relation to the number of crashes. According to a report
published in 2000 developing and transitional countries cumulatively represent
over 85 percent of all road traffic deaths. Kenya has nearly 2,000 fatalities per
10,000 crashes. Vietnam has over 3,000 fatalities per 10,000 crashes. 44% of all
road traffic deaths occur in the Asia/Pacific area, which only has 16 % of the total
number of motor vehicles.
―At 71,495 and 59,927 total deaths, China and India, respectively,
had the highest number of road fatalities in the world in 1995.:
Pedestrian deaths represent 62 % of all traffic fatalities in Lebanon.
In most developing countries vulnerable road users, including
pedestrians, bicycle and motor cycle riders, account for the
majority of all fatalities: Eastern European countries represent 6%
of motor vehicles, but 11% of crash fatalities worldwide‖. The
Latin America/Caribbean region has the second highest crash costs
behind Asia. As vehicle use in developing countries are increasing,
road traffic injuries are expected to become the third leading cause
of death and disability worldwide by 2020. In developing
countries, each vehicle is much more lethal than the vehicles in
developed countries, because it most frequently takes the lives not
of vehicle occupants, but of vulnerable road users: pedestrians,
cyclists. Many developing countries are increasing the rate of
motorized vehicle use at up to 18% per year. In India, for example,
there has been a 23% increase in the number of vehicles from
1990-1999 and a 60-fold increase is predicted by 2050.
The human loss in such accidents is tragic. Survivors and family members
are affected not only by an immediate death or disability, but also lifetime
psychological and physical suffering. Crashes often result in orphans, and some
victims, as young as infants, spend the rest of their lives with medical facilities.
Proven interventions for developed countries require research,
modification, and testing for developing countries. For example, developing
countries face poorly designed and maintained roadways, unsafe vehicles, drivers
under the influence of drugs or alcohol, lack of national policies, and inadequate
enforcement. Success will require significant new resources supported by
sustained political commitment.
When the factual scenario of the present case is analysed, it is crystal clear
that the appropriate conviction would be under Section 304 A IPC and not Section
304 Part II IPC. Conviction is accordingly altered. The maximum sentence which
can be imposed for offence punishable under Section 304A is two years with fine
or with both. The custodial sentence, therefore, is reduced to the maximum i.e.
two years. (Prabhakaran v. State of Kerala; Appeal (Crl.) 775 of 2005,
Decided by Hon‘ble Supreme Court on 21/06/2007)
S. 397IPC – Whether to attract S. 397 IPC, it is necessary that grievous
hurt should have been caused as a result of assault – held - No
Any hurt which endangers life is a grievous hurt. It would be seen that
one of the injuries was caused just below the nipple. The term endangers life is
much stronger than the expression dangerous to life. Apart from that in the
provision attempt to cause grievous hurt attracts its application. The question
whether the accused attempted to cause death or grievous hurt would depend upon
the factual scenario. In the instant case knife blow was given on the chest just
below the nipple. Considering the place where injury was inflicted i.e. on the
chest the High Court was right in its view about the applicability of Section 397
IPC. (Niranjan Singh v. State of Madhya Pradesh; Appeal (Crl.) 487 of 2001,
Decided on 14/06/2007)
S. 84 – Plea of Insanity - When under Section 84 IPC, a person can be
exonerated from liability - Held:
Under Section 84 IPC, a person is exonerated from liability for doing an
act on the ground of unsoundness of mind if he, at the time of doing the act, is
either incapable of knowing (a) the nature of the act, or (b) that he is doing what is
either wrong or contrary to law. The accused is protected not only when, on
account of insanity, he was incapable of knowing the nature of the act, but also
when he did not know either that the act was wrong or that it was contrary to law,
although he might know the nature of the act itself. He is, however, not protected
if he knew that what he was doing was wrong, even if he did not know that it was
contrary to law, and also if he knew that what he was doing was contrary to law
even though he did not know that it was wrong. The onus of proving unsoundness
of mind is on the accused. But where during the investigation previous history of
insanity is revealed, it is the duty of an honest investigator to subject the accused
to a medical examination and place that evidence before the Court and if this is
not done, it creates a serious infirmity in the prosecution case and the benefit of
doubt has to be given to the accused. The onus, however, has to be discharged by
producing evidence as to the conduct of the accused shortly prior to the offence
and his conduct at the time or immediately afterwards, also by evidence of his
mental condition and other relevant factors. Every person is presumed to know
the natural consequences of his act. Similarly every person is also presumed to
know the law. The prosecution has not to establish these facts.
There are four kinds of persons who may be said to be non-compos mentis
(not of sound mind), i.e., (1) an idiot; (2) one made non-compos by illness (3) a
lunatic or a mad man and (4.) one who is drunk. An idiot is one who is of non-
sane memory from his birth, by a perpetual infirmity, without lucid intervals; and
those are said to be idiots who cannot count twenty, or tell the days of the week,
or who do not know their fathers or mothers, or the like, (See Archbold‘s
Criminal Pleadings, Evidence and Practice, 35th
Edn. pp.31-32; Russell on Crimes
and Misdemeanors, 12th
Edn. Vol., p.105; 1 Hala‘s Pleas of the Grown 34). A
person made non-compos men-us by illness is excused in criminal cases from
such acts as are-committed while under the influence of his disorder, (See 1 Hale
PC 30). A lunatic is one who is afflicted by mental disorder only at certain periods
and vicissitudes, having intervals of reason, (See Russell, 12 Edn. Vol. 1, p. 103;
Hale PC 31). Madness is permanent. Lunacy and madness are spoken of as
acquired insanity, and idiocy as natural insanity.
Section 84 embodies the fundamental maxim of criminal law, i.e., actus
non reum facit nisi mens sit rea‖ (an act does not constitute guilt unless done with
a guilty intention). In order to constitute an offence, the intent and act must
concur; but in the case of insane persons, no culpability is fastened on them as
they have no free will (furios is nulla voluntas est).
The section itself provides that the benefit is available only after it is
proved that at the time of committing the act, the accused was labouring under
such a defect of reason, from disease of the mind, as not to know the nature and
quality of the act he was doing, or that even if he did not know it, it was either
wrong or contrary to law then this section must be applied. The crucial point of
time for deciding whether the benefit of this section should be given or not, is the
material time when the offence takes place. In coming to that conclusion, the
relevant circumstances are to be taken into consideration, it would be dangerous
to admit the: defence of insanity upon arguments derived merely from the
character of the crime. It is only unsoundness of mind which naturally impairs the
cognitive faculties of the mind that can form a ground of: exemption from
criminal responsibility. Stephen in ‗History of the Criminal Law of England, Vo.
II, page 166 has observed that if a persons cut off the head of a sleeping man
because it would be great fun to see him looking for it when he woke up, would
obviously be a case where the perpetrator of the act would be incapable of
knowing the physical effects of his act. The law recognizes nothing but incapacity
to realise the nature of the act and presumes that where a man‘s mind or his
faculties of ratiocination are sufficiently dim to apprehend what he is doing, he
must always be presumed to intend the consequence of the action he takes. Mere
absence of motive for a crime, howsoever atrocious it may be, cannot in the
absence of plea and proof of legal insanity, bring the case within this section This
Court in Sherall Walli Mohammed v. State of Maharashtra: (1972 Cr.LJ 1523
(SC)), held that the mere fact that no motive has been proved why the accused
murdered his wife and child or the fact that he made no attempt to run away when
the door was broken open would not indicate that he was insane or that he did not
have necessary mens rea for the offence. Mere abnormality of mind or partial
delusion, irresistible impulse or compulsive behaviour of a psychopath affords no
protection under Section 84 as the law contained in that section is still squarely
based on the outdated Naughton rules of 19th
Century England. The provisions of
Section 84 are in substance the same as that laid down in the answers of the
Judges to the questions put to them by the House of Lords, in M Naughton‘s case.
(1843) 4 St. Tr. (NS) 847. Behaviour, antecedent, attendant and subsequent to the
event, may be relevant in finding the mental condition of the accused at the time
of the event, but not that remote in time. It is difficult to prove the precise state of
the offender‘s mind at the time of the commission of the offence, but some
indication thereof is often furnished by the conduct of the offender while
committing it or immediately after the commission of the offence. A lucid interval
of an insane person is not merely a cessation of the violent symptoms of the
disorder, but a restoration of the faculties of the mind sufficiently to enable the
person soundly to judge the act; but the expression does not necessarily mean
complete or prefect restoration of the mental faculties to their original condition.
So, if there is such a restoration, the person concerned can do the act with such
reason, memory and judgment as to make it a legal act; but merely a cessation of
the violent symptoms of the disorder is not sufficient.
The standard to be applied is whether according to the ordinary standard,
adopted by reasonable men, the act was right or wrong. The mere fact that an
accused is conceited, odd irascible and his brain is not quite all right, or that the
physical and mental ailments from which he suffered had rendered his intellect
weak and had affected his emotions and will, or that he had committed certain
unusual acts, in the past or that he was liable to recurring fits of insanity at short
intervals, or that he was subject to getting epileptic fits but there was nothing
abnormal in his behaviour, or that his behaviour was queer, cannot be sufficient to
attract the application of this section.. (Bapu @ Gajraj Singh v. State of
Rajasthan; Appeal (crl.) 1313 of 2006, Decided by Hon‘ble Supreme Court
on 04/06/2007)
Essential of the offence of Abatement to commit suicide - Whether mere
cruelty towards wife is sufficient to prove the offence punishable u/s 306
I.P.C. - Held;
Section 107 IPC defines abetment of a thing. The offence of abetment is a
separate and distinct offence provided in the Act as an offence. A person, abets
the doing of a thing when (1) he instigates any person to do that thing; or (2)
engages with one or more other persons in any conspiracy for the doing of that
thing; or (3) intentionally aids, by act or illegal omission, the doing of that thing.
These things are essential to complete abetment as a crime. The word ―instigate‖
literally means to provoke, incite, urge on or bring about by persuasion to do any
thing. The abetment may be by instigation, conspiracy or intentional aid, as
provided in the three clauses of Section 107. Section 109 provides that if the act
abetted is committed in consequence of abetment and there is no provision for the
punishment of such abetment, then the offender is to be punished with the
punishment provided for the original offence. ‗Abetted‘ in Section 109 means the
specific offence abetted. Therefore, the offence for the abetment of which a
person is charged with the abetment is normally linked with the proved offence.
In cases of alleged abetment of suicide there must be proof of direct or
indirect acts of incitement to the commission of suicide. The mere fact that the
husband treated the deceased-wife with cruelty is not enough. [See Mahinder
Singh v. State of M.P. (1995 AIR SCW 4570)]. Merely on the allegation of
harassment conviction in terms of Section 306 IPC is not sustainable. There is
ample evidence on record that the deceased was disturbed because she had not
given birth to any child. PWs. 8, 10, and 11 have categorically stated that the
deceased was disappointed due to the said fact and her failure to beget a child and
she was upset due to this. (Kishori Lal v. State of M.P.; Appeal (Crl.) 1115 of
1999; Date of Judgment: 19/06/2007)
Indian Succession Act Will – Whether attestation by two or more witnesses can be dispensed
with. Held: No.
It is necessary that signature of attesting witness have to be made
simultaneously in presence of each other. (Sri Pratap Bhattacharya v. Sri
Ashok Bhattacharya; AIR 2007 (NOC) 893 Cal.)
Interpretation of Statutes
The rule of appropriation in execution of money decrees – Explained:
We are of the view that the normal rule that in case of a debt due with
interest, any payment made by the debtor, in the first instance, is to be
appropriated towards the satisfaction of interest and thereafter towards principal,
subject to a contract to the contrary, is not excluded by the provisions of the Act.
The normal principle is embedded on the basis of Section 60 of the Indian
Contract Act, 1872. It is also indicated in Order XXI Rule 1(3)(c) of the Code.
(Gurpreet Singh v. Union of India, Appeal (civil) 4570/2006, decided by
Constitutional Bench of Hon‘ble Supreme Court on 19.10.2006)
Co-operative Societies Acts - Recovery of Debts Due to Banks and
Financial Institutions Act, 1993 – Whether such Co-operative Banks would
have right of recovery under the respective Co-operatives Societies Acts or
they will have to proceed under 1993 Act. Scope & Interpretation of Acts
explained.
The Recovery of Debts Due to Banks and Financial Institutions Act,
1993[‘the RDB Act‘] was enacted by the Parliament with the objects and reasons
for the recovery of the debts due to the banks. Before the coming into force of the
RDB Act, the banks were approaching Civil Courts for recovery of their debts
from the defaulters by filing civil suits before the Civil Courts of competent
jurisdiction. After the coming into force of the RDB Act on the 25th day of June
1993, the jurisdiction of the Civil Courts was taken away. The decision to have
separate Bank Tribunals was taken by the Central Government after considering
the increasing workload of the Civil Courts and delay in disposal of the bank
suits. The Statement of Objects and Reasons for the enactment of the RDB Act
are that the banks and financial institutions at present experience considerable
difficulties in recovering loans and enforcement of securities charged with them.
The existing procedure for recovery of debts due to the banks and financial
institutions has blocked a significant portion of their funds in unproductive assets,
the value of which deteriorates with the passage of time. The Committee on the
financial system headed by Shri M. Narasimham has considered the setting up of
the Special Tribunals with special powers for adjudication of such matters and
speedy recovery as critical to the successful implementation of the financial sector
reforms. An urgent need was, therefore, felt to work out a suitable mechanism
through which the dues to the banks and financial institutions could be realized
without delay. In 1981, a Committee under the Chairmanship of Shri T. Tiwari
had examined the legal and other difficulties faced by banks and financial
institutions and suggested remedial measures including changes in law. The
Tiwari Committee had also suggested setting up of Special Tribunals for recovery
of dues of the banks and financial institutions by following a summary procedure.
The setting up of Special Tribunals will not only fulfill a long-felt need, but also
will be an important step in the implementation of the Report of Narasimham
Committee. Whereas on 30th September, 1990 more than fifteen lakhs of cases
filed by the public sector banks and about 304 cases filed by the financial
institutions were pending in various Courts, recovery of debts involved more than
Rs.5622 crores in dues of Public Sector Banks and about Rs.391 crores of dues of
the financial institutions. The locking up of such huge amount of public money in
litigation prevents proper utilization and re-cycling of the funds for the
development of the country.
The distinction between peoples‘ co-operative banks serving their
members and corporate banks doing commercial transactions is fundamental to
the constitutional dispensation and understanding co-operative banking generally
and in the context of cooperative banking not coming under the ambit of the BR
Act. Thus, even if the co-operatives are involved in the activity of banking which
involves lending and borrowing, this is purely incidental to their main co-
operative activity which is a function in public domain.
It is well-settled that the language of the Statutes is to be properly
understood. The usual presumption is that the Legislature does not waste its
words and it does not commit a mistake. It is presumed to know the law, judicial
decisions and general principles of law. The elementary rule of interpretation of
the Statute is that the words used in the Section must be given their plain
grammatical meaning. Therefore, we cannot afford to add any words to read
something into the Section, which the Legislature had not intended.
The provisions of the Recovery of Debts Due to Banks and Financial
Institutions Act, 1993 [RDB Act] by invoking the Doctrine of Incorporation are
not applicable to the recovery of dues by the co-operatives from their members.
The field of co-operative societies cannot be said to have been covered by the
Central Legislation by reference to Entry 45, List I of the Seventh Schedule of the
Constitution. Co-operative Banks constituted under the Co-operative Societies
Acts enacted by the respective States would be covered by co-operative societies
by Entry 32 of List II of Seventh Schedule of the Constitution of India. (Greater
Bombay Co-op. Bank Ltd v. M/s United Yarn Tex. Pvt. Ltd. & Ors; Appeal
(civil) 432 of 2004, Date of Judgment: 04/04/2007)
Interpretation of Statutes - Whether Court can legislate or amend the
law.; Held- No.
No doubt Parliament can abolish the death sentence by deleting it as one
of the punishments prescribed in the I.P.C or other statutes, but this Court cannot
do so. The Court cannot legislate or amend the law. There is broad separation of
powers under the Constitution and this Court must not ordinarily encroach into
the legislative or executive domain as held by us in Indian Drugs &
Pharmaceuticals Ltd. Vs. The Workman of Indian Drugs & Pharmaceuticals Ltd.
2007(1) SCC 408. (Swamy Sharaddanandea @ Murali Monahar Mishra v.
State of Karnataka; Appeal (Crl.) 454 of 2006, Decided by Hon‘ble Supreme
Court on 18.05.2007)
Failure to give reasons in support of judgment/order/ Admn. Order –
effect –Makes the judgment/ order/Admn. Order not sustainable
Reasons introduce clarity in an order. On plainest consideration of justice,
the High Court ought to have set forth its reasons, howsoever brief, in its order
indicative of an application of its mind, all the more when its order is amenable to
further avenue of challenge. The absence of reasons has rendered the High
Court‘s judgment not sustainable.
Even in respect of administrative orders Lord Denning M.R. in Breen v.
Amalgamated Engineering Union (1971 (1) All E.R. 1148) observed ―The giving
of reasons is one of the fundamentals of good administration‖. In Alexander
Machinery (Dudley) Ltd. v. Crabtree (1974 LCR 120) it was observed:
―Failure to give reasons amounts to denial of justice‖. Reasons are
live links between the mind of the decision taker to the controversy
in question and the decision or conclusion arrived at‖. Reasons
substitute subjectivity by objectivity. The emphasis on recording
reasons is that if the decision reveals the ―inscrutable face of the
sphinx‖, it can, by its silence, render it virtually impossible for the
Courts to perform their appellate function or exercise the power of
judicial review in adjudging the validity of the decision. Right to
reasons is an indispensable part of a sound judicial system, reasons
at least sufficient to indicate an application of mind to the matter
before Court. Another rationale is that the affected party can know
why the decision has gone against him. One of the salutary
requirements of natural justice is spelling out reasons for the order
made, in other words, a speaking out. The ―inscrutable face of a
sphinx‖ is ordinarily incongruous with a judicial or quasi-judicial
performance.
(Daya Ram v. Raghunath & Ors Appeal (civil) 2900 of 2007, Decided on
15/06/2007)
Different stages that occur when an award is passed and scope for
reopening of the appropriation already made pursuant to the award
discussed and explained.
On the scheme of the Act, it is seen that the award of compensation is at
different stages. The first stage occurs when the award is passed. Obviously, the
award takes in all the amounts contemplated by Section 23(1) of the Act, Section
23(1A) of the Act, Section 23(2) of the Act and the interest contemplated by
Section 34 of the Act. The whole of that amount is paid or deposited by the
Collector in terms of Section 31 of the Act. At this stage, no shortfall in deposit is
contemplated, since the Collector has to pay or deposit the amount awarded by
him. If a shortfall is pointed out, it may have to be made up at that stage and the
principle of appropriation may apply, though it is difficult to contemplate a partial
deposit at that stage. On the deposit by the Collector under Section 31 of the Act,
the first stage comes to an end subject to the right of the claimant to notice of the
deposit and withdrawal or acceptance of the amount with or without protest.
The second stage occurs on a reference under Section 18 of the Act.
When the reference Court awards enhanced compensation, it has necessarily to
take note of the enhanced amounts payable under Section 23(1), Section 23(1A),
Section 23(2) and interest on the enhanced amount as provided in Section 28 of
the Act and costs in terms of Section 27. The Collector has the duty to deposit
these amounts pursuant to the deemed decree thus passed. This has nothing to do
with the earlier deposit made or to be made under and after the award. If the
deposit made, falls short of the enhancement decreed, there can arise the question
of appropriation at that stage, in relation to the amount enhanced on the reference.
The third stage occurs, when in appeal, the High Court enhances the
compensation as indicated already. That enhanced compensation would also bear
interest on the enhanced portion of the compensation, when Section 28 is applied.
The enhanced amount thus calculated will have to be deposited in addition to the
amount awarded by thereference Court if it had not already been deposited.
The fourth stage may be when the Supreme Court enhances the
compensation and at that stage too, the same rule would apply.
Can a claimant or decree holder who has received the entire amount
awarded by the reference court or who had notice of the deposit of the entire
amount so awarded, claim interest on the amount he has already received merely
because the appellate court has enhanced the compensation and has made payable
additional compensation? We have already referred to Order XXI and Order
XXIV of the Code to point out that such a blanket re-opening of the transaction is
not warranted even in respect of a money decree. Section 28 of the Act indicates
that the award of interest is confined to the excess compensation awarded and it is
to be paid from the date of dispossession. This is in consonance with the position
that a fresh re-appropriation is not contemplated or warranted by the scheme of
the Act. But if there is any shortfall at any stage, the claimant or decree holder
can seek to apply the rule of appropriation in respect of that amount, first towards
interest and costs and then towards the principal, unless the decree otherwise
directs. (Gurpreet Singh v. Union of India, Appeal (civil) 4570/2006, decided
by Constitutional Bench of Hon‘ble Supreme Court on 19.10.2006)
Land Acquisition Act Land Acquisition Act 1894, Amendment Act 68/84, Sec. 23 & 28 – C.P.C.,
Or. 21. R.1, Or.24, R. 3 – Contract Act Ss. 59 to 61 - Whether general rule of
appropriation is not applicable or wholly applicable in the execution
proceeding of an award under Land Acquisition Act as amended by Land
Acquisition (Amendment) Act, (68 of 1984) - different provisions of Land
Acquisition Act, C.P.C. and Contract Act and Ruling of Prem Nath Kapur &
others v. National Fertilizers Corporation of India Ltd. (1995) Supp. 5 SCR
790 and Sunder v. Union of India, (2001) Supp. 3 SCR 176 discussed. Held:
Though, a decree holder may have the right to appropriate the payments
made by the judgment-debtor, it could only be as provided in the decree if there is
provision in that behalf in the decree or, as contemplated by Order XXI Rule 1 of
the Code as explained by us above. The Code or the general rules do not
contemplate payment of further interest by a judgment debtor on the portion of
the principal he has already paid. His obligation is only to pay interest on the
balance principal remaining unpaid as adjudged either by the court of first
instance or in the court of appeal. On the pretext that the amount adjudged by the
appellate court is the real amount due, the decree-holder cannot claim interest on
that part of the principal already paid to him. Of course, as indicated, out of what
is paid he can adjust the interest and costs first and the balance towards the
principal, if there is a shortfall in deposit. But, beyond that, the decree-holder
cannot seek to re-open the entire transaction and proceed to recalculate the
interest on the whole amount and seek a re-appropriation as a whole in the light of
the appellate decree.
It is true that the understanding of the expression ―compensation awarded‖
for the purpose of Section 28 of the Act in Prem Nath Kapur (supra) was
modified. To that extent one bend of reasoning in Prem Nath Kapur (supra) also
stands discredited. But as we see it, on the question of appropriation, the decision
in Sunder (supra) does not have such an impact as to compel us to jettison the
reasoning adopted in Prem Nath Kapur (supra). Slightly deviating from the
reasoning in Prem Nath Kapur (supra) we have indicated earlier that even going
by Order XXI Rule 1 of the Code, the position would be as envisaged in Prem
Nath Kapur (supra). That apart, we are inclined to respectfully agree with the
reasoning in Prem Nath Kapur (supra) that on the wording of Section 34 and
Section 28 of the Act read with and understood in the light of the stages of the
award of compensation, the question of appropriation would be at different stages
and a decree holder would not be entitled to reopen the entire transaction to claim
a reappropriation of the amounts already received by him and appropriated at that
particular stage. The reliance on the doctrine of merger does not enable the
decree-holder to get over the scheme adopted by the Act.
Prem Nath Kapur (supra) also indicates that when an award-decree is
passed specifying the amounts under different heads like the amount under
Section 23(1), the amount under Section 23(2), the amount under Section 23(1A)
and the interest under Section 28 and the judgment debtor makes a deposit of
specified sums under these different heads, it will amount to the judgment debtor
intimating the decree holder as to how the sum deposited is to be applied in
discharge of the obligation of the judgment debtor. Once a decree holder receives
the payment of the sums thus deposited, he would be accepting the appropriation
made by the judgment debtor under the award decree on the scheme of the Land
Acquisition Act. This part of the reasoning in Prem Nath Kapur (supra) is, of
course, also based on the reasoning that there is some inconsistency in Order XXI
Rule 1 of the Code and the scheme of the Act. Prem Nath Kapur (supra) also
indicates that when the decree itself specifies the amount payable under different
heads (the decree has to do so under Section 26 of the Act) and amounts are
deposited towards those different heads, the appropriation would be on the basis
of the direction under the decree which must be taken to be one for crediting the
various sums paid under particular heads. On the scheme of the Act, especially
the wording of Section 34 and Section 28 of the Act it is not possible to say that
the said approach made in Prem Nath Kapur (supra) is erroneous or is
unreasonable or is not a line of approach that is not warranted. Therefore, when
the judgment debtor State makes a deposit along with the calculation
appropriating distinct sums towards various heads of compensation as awarded by
the reference court or by the appellate court in the appellate decree, and the
amount is received by the decree holder, the decree holder must be taken to be not
entitled to seek an appropriation as if the judgment debtor has not made any
intimation and that he is entitled to appropriate at his volition. Considering the
scheme of compensation under the Act in the context of the specific nature of the
items specifically referred to in Section 23 of the Act, we are of the view that the
approach adopted in Prem Nath Kapur (supra) is justified. A re-appropriation by
seeking to reopen the satisfaction already rendered might result in interest being
made payable even on that part of the principal amount that had already been
deposited and received by the decree holder and that would be in the realm of
unjust enrichment.
What is to happen when a part of the amount awarded by the reference
court or by the appellate court is deposited pursuant to an interim order of the
appellate court or of the further appellate court and the awardee is given the
liberty to withdraw that amount? In such a case, the amount would be received
by the decree holder on the strength of the interim order and the appropriation will
be subject to the decision in the appeal or the further appeal and the direction, if
any, contained therein. In such a case, if the appeal is disposed of in his favour,
the decree holder would be entitled to appropriate the amount already received by
him pursuant to the interim order first towards interest then towards costs and the
balance towards principal as on date of the withdrawal of the amount and claim
interest on the balance amount of enhanced compensation by levying execution.
But on that part appropriated towards the principal, the interest would cease from
the date on which the amount is received by the awardee. Of course, if while
passing the interim order, the court had indicated as to how the deposited amount
is to be appropriated, that direction will prevail and the appropriation could only
be done on the basis of that direction.
Thus, on the whole, we are satisfied that the essential ratio in the Prem
Nath Kapur (supra) on appropriation being at different stages is justified though if
at a particular stage there is a shortfall, the awardee decree holder would be
entitled to appropriate the same on the general principle of appropriation, first
towards interest, then towards costs and then towards the principal, unless, of
course, the deposit is indicated to be towards specified heads by the judgment
debtor while making the deposit intimating the decree-holder of his intention.
We, thus, approve the ratio of Prem Nath Kapur (supra) on the aspect of
appropriation. (Gurpreet Singh v. Union of India, Appeal (civil) 4570/2006,
decided by Constitutional Bench of Hon‘ble Supreme Court on 19.10.2006)
Legal Services Authorities Act
S. 6 – Appointment of Chairman of State Legal Service Authority in
different States – A retired Judge can only be appointed when unusual
difficulties exist – Normally a sitting Judge should be appointed as
Chairman.
In some States earlier a sitting Judge was functioning as the Chairman of
the State Legal Service Authority. We could not find any reason as to why a
departure from the long-standing practice of appointing a sitting Judge as the
Chairman of the State Legal Service Authority was departed from.
Another disturbing feature is that some of the State Governments have
asked for panel of names to be given. Calling for such panel in essence results in
substitution of objectivity with subjectivity. This is to be avoided. Though in
terms of Section 6(2) retired Judge can be appointed, but that shall have to be in
exceptional circumstances. The advantage of having a sitting Judge as the
Chairman far outweigh the disadvantages, some of which have been highlighted
by learned counsel for the States where retired Judges are appointed. Therefore,
normal rule is that a sitting Judge should be appointed as the Chairman and only
when unusual difficulties exist, a retired Judge may be appointed. That has to be
the exception and not the rule. (Supreme Court Bar Association v. Union of
India & Ors.; W.P. (Civil) No. 27 of 2007, decided by Hon‘ble Supreme
Court on 13.4.2007 = 2007 (3) Supreme 562)
Limitation Act Article 64 & 65 – Adverse possession – When sufficient to conform title –
Onus of proof – Held,
Adverse possession in one sense is based on the theory or presumption
that the owner has abandoned the property to the adverse possessor on the
acquiescence of the owner to the hostile acts and claims of the person in
possession. It follows that sound qualities of a typical adverse possession lie in it
being open, continuous and hostile.
To assess a claim of adverse possession, two-pronged enquiry is required:
1. Application of limitation provision thereby jurisprudentially ―willful
neglect‖ element on part of the owner established. Successful application
in this regard distances the title of the land from the paper-owner.
2. Specific Positive intention to dispossess on the part of the adverse
possessor effectively shifts the title already distanced from the paper
owner, to the adverse possessor. Right thereby accrues in favour of
adverse possessor as intent to dispossess is an express statement of
urgency and intention in the upkeep of the property.
(P.T. Munichilkkanna Reddy & Ors. v. Revamma & Ors.; Civil Appeal No. 7062
of 2000, decided by Hon‘ble Supreme Court on 24.4.2007 = 2007 (3) Supreme
751)
Motor Vehicles Act, 1988
Ss. 166 & 140 – Whether a married daughter is entitled to receive
compensation on the death of her father – Held, Yes. But the quantum of
compensation would be the liability referable U/s. 140 of M.V. Act – Whether
amount of compensation can be less then the liability referable to S. 140 of
the Act – Held, No.
In terms of clause (c) of sub-section (1) of Section 166 of the Act in case
of death, all or any of the legal representatives of the deceased become entitled to
compensation and any such legal representative can file a claim petition. The
proviso to said sub-section makes the position clear that where all the legal
representatives had not joined, then application can be made on behalf of the legal
representatives of the deceased by impleading those legal representatives as
respondents. Therefore, the High Court was justified in its view that the appellant
could maintain a claim petition in terms of Section 166 of the Act.
There are several factors which have to be noted. The liability under
Section 140 of the Act does not cease because there is absence of dependency.
The right to file a claim application has to be considered in the back-ground of
right to entitlement. While assessing the quantum, the multiplier system is applied
because of deprivation of dependency. In other words, multiplier is a measure.
There are three stages while assessing the question of entitlement. Firstly, the
liability of the person who is liable and the person who is to indemnify the
liability, if any. Next is the quantification and Section 166 is primarily in the
nature of recovery proceedings. As noted above, liability in terms of Section 140
of the Act does not cease because of absence of dependency.
Judged in that background where a legal representative who is not
dependant files an application for compensation, the quantum cannot be less than
the liability referable to Section 140 of the Act. Therefore, even if there is no loss
of dependency the claimant if he or she is a legal representative will be entitled to
compensation, the quantum of which shall be not less than the liability flowing
from Section 140 of the Act. The appeal is allowed to the aforesaid extent. (Smt.
Manjuri Bera v. The Oriental Insurance Company Ltd. & Anr.; Civil Appeal
No. 1702 of 2007, decided by Hon‘ble Supreme Court on 30.3.2007 = 2007 (3)
Supreme 620).
Motor Vehicles Act, 1988 – Ss. 146, 147, 163A & 166 – Whether policy in
terms of S. 147 is also intended to cover persons other than ―third party‖ –
Held, No.
Scope of the expression ―any person‖ occurring in S. 147 of the Act also
explained and held, ―any person‖ is to be understood as a third party. The
Hon‘ble Supreme Court observed as under: -
Chapter XI of the Act bears a heading, ―Insurance of Motor Vehicles
against third party risks‖. The definition of ―third party‖ is an inclusive one since
Section 145(g) only indicates that ―third party‖ includes the Government. It is
Section 146 that makes it obligatory for an insurance to be taken out before a
motor vehicle could be used on the road. The heading of that Section itself is
―Necessity for insurance against third party risk‖. No doubt, the marginal heading
may not be conclusive. It is Section 147 that sets out the requirement of policies
and limits of liability. It is provided therein that in order to comply with the
requirements of Chapter XI of the Act, a policy of insurance must be a policy
which is issued by an authorised insurer; or which insures the person or classes of
persons specified in the policy to the extent specified in sub-section (2) against
any liability which may be incurred by the owner in respect of the death of or
bodily injury or damage to any property of a third party caused by or arising out
of the use of the vehicle in a public place. With effect from 14.11.1994, injury to
the owner of goods or his authorised representative carried in the vehicle was also
added. The policy had to cover death of or bodily injury to any passenger of a
public service vehicle caused by or arising out of the use of the vehicle in a public
place. Then, as per the proviso, the policy shall not be required to cover liability
in respect of the death, arising out of and in the course of his employment, of the
employee of a person insured by the policy or in respect of bodily injury sustained
by such an employee arising out of and in the course of his employment, other
than a liability arising under the Workmen‘s Compensation Act, 1923 in respect
of the death of, or bodily injury to, an employee engaged in driving the vehicle, or
who is a conductor, if it is a public service vehicle or an employee being carried
in a goods vehicle or to cover any contractual liability. Sub-section (2) only sets
down the limits of the policy. As we understand Section 147 (1) of the Act, an
insurance policy thereunder need not cover the liability in respect of death or
injury arising out of and in the course of the employment of an employee of the
person insured by the policy, unless it be a liability arising under the Workmen‘s
Compensation Act, 1923 in respect of a driver, also the conductor, in the case of a
public service vehicle, and the one carried in the vehicle as owner of the goods or
his representative, if it is a goods vehicle. It is provided that the policy also shall
not be required to cover any contractual liability. Uninfluenced by authorities, we
find no difficulty in understanding this provision as one providing that the policy
must insure an owner against any liability to a third party caused by or arising out
of the use of the vehicle in a public place, and against death or bodily injury to
any passenger of a public service vehicle caused by or arising out of the use of
vehicle in a public place. The proviso clarifies that the policy shall not be
required to cover an employee of the insured in respect of bodily injury or death
arising out of and in the course of his employment. Then, an exception is
provided to the last forgoing to the effect that the policy must cover a liability
arising under the Workmen‘s Compensation Act, 1923 in respect of the death or
bodily injury to an employee who is engaged in driving the vehicle or who serves
as a conductor in a public service vehicle or an employee who travels in the
vehicle of the employer carrying goods if it is a goods carriage. Section 149(1),
which casts an obligation on an insurer to satisfy an award, also speaks only of
award in respect of such liability as is required to be covered by a policy under
clause (h) of sub-section (1) of Section 147, (being a liability covered by the
terms of the policy). This provision cannot therefore be used to enlarge the
liability if it does not exist in terms of Section 147 of the Act.
The object of the insistence on insurance under Chapter XI of the Act thus
seems to be to compulsorily cover the liability relating to their person or
properties of third parties and in respect of employees of the insured employer,
the liability that may arise under the Workmen‘s Compensation Act, 1923 in
respect of the driver, the conductor and the one carried in a goods vehicle carrying
goods. On this plain understanding of Section 147, we find it difficulty to hold
that the insurance company, in the case on hand, was liable to indemnify the
owner, the employer Company, the insured, in respect of the death of one of its
employees, who according to the claim, was not the driver. Be it noted that the
liability is not one arising under the Workmen‘s Compensation Act, 1923 and it is
doubtful, on the case put forward by the claimant, whether the deceased could be
understood as a workman coming within the Workmen‘s Compensation Act,
1923. Therefore, on a plain reading of Section 147 of the Act, it appears to be
clear that the insurance company is not liable to indemnify the insured in the case
on hand.
In New India Assurance Co. Ltd. Vs. Asha Rani and others [(2003) 2
S.C.C 223) this Court had occasion to consider the scope of the expression ―any
person‖ occurring in Section 147 of the Act. This Court held:
―that the meaning of the words ―any person‖ must also be
attributed having regard to the context in which they have been
used i.e. ― a third party‖. Keeping in view the provisions of the
1988 Act we are of the opinion that as the provisions thereof did
not enjoin any statutory liability on the owner of a vehicle to get
his vehicle insured for any passenger travelling in a goods vehicle,
the insurers would not be liable therefor.‖
In other words, this Court clearly held that the apparently wide words ―any
person‖ are qualified by the setting in which they occur and that ―any person‖ is
to be understood as a third party. (The Oriental Insurance Company Limited v.
Meena Variyal & ors; Appeal (civil) 5825 of 2006; decided by Hon‘ble
Supreme Court on 02.04.2007)
Motor Vehicles Act, 1988 – Ss. 146, 147, 163A & 166 – Whether in a claim
for compensation under S. 166 proof of negligence is necessary – Held, yes.
Whether in a claim for compensation U/s. 163A it is necessary to establish
negligence or default on the part of owner/driver – Held, No.
We think that the law laid down in Minu B. Mehta & Anr. v. Balkrishna
Ramchandra Nayan & Anr. (supra) was accepted by the legislature while enacting
the Motor Vehicles Act, 1988 by introducing Section 163A of the Act providing
for payment of compensation notwithstanding anything contained in the Act or in
any other law for the time being in force that the owner of a motor vehicle or the
authorised insurer shall be liable to pay in the case of death or permanent
disablement due to accident arising out of the use of the motor vehicle,
compensation, as indicated in the Second Schedule, to the legal heirs or the
victim, as the case may be, and in a claim made under sub-section (1) of Section
163A of the Act, the claimant shall not be required to plead or establish that the
death or permanent disablement in respect of which the claim has been made was
due to any wrongful act or neglect or default of the owner of the vehicle
concerned. Therefore, the victim of an accident or his dependants have an option
either to proceed under Section 166 of the Act or under Section 163A of the Act.
Once they approach the Tribunal under Section 166 of the Act, they have
necessarily to take upon themselves the burden of establishing the negligence of
the driver or owner of the vehicle concerned. But if they proceed under Section
163A of the Act, the compensation will be awarded in terms of the Schedule
without calling upon the victim or his dependants to establish any negligence or
default on the part of the owner of the vehicle or the driver of the vehicle. (The
Oriental Insurance Company Limited v. Meena Variyal & ors; Appeal
(civil) 5825 of 2006; decided by Hon‘ble Supreme Court on 02.04.2007)
Motor Vehicles Act, 1988 – Ss. 146, 147, 163A & 166 – Deceased himself
driving the vehicle –Insurance Policy, issued in terms of S. 147 of the Act
which has no special clause covering persons other than ―third party‖ -
Whether Insurance Company liable when deceased is himself is owner or
employee of owner – Held, No.
Ratio of Swaran Singh‘s case also clarified
The object of the insistence on insurance under Chapter XI of the Act thus
seems to be to compulsorily cover the liability relating to their person or
properties of third parties and in respect of employees of the insured employer,
the liability that may arise under the Workmen‘s Compensation Act, 1923 in
respect of the driver, the conductor and the one carried in a goods vehicle carrying
goods. On this plain understanding of Section 147, we find it difficulty to hold
that the insurance company, in the case on hand, was liable to indemnify the
owner, the employer Company, the insured, in respect of the death of one of its
employees, who according to the claim, was not the driver. Be it noted that the
liability is not one arising under the Workmen‘s Compensation Act, 1923 and it is
doubtful, on the case put forward by the claimant, whether the deceased could be
understood as a workman coming within the Workmen‘s Compensation Act,
1923. Therefore, on a plain reading of Section 147 of the Act, it appears to be
clear that the insurance company is not liable to indemnify the insured in the case
on hand.
The argument that the proviso does not keep out employees from coverage
though the claims under the Workmen‘s Compensation Act are specified, cannot
be accepted on the plain language of the proviso. The proviso enacts an
exemption and carves out an exception to that exemption. The suggested
interpretation would result in ignoring the effect of the language employed by the
proviso, exempting the owner from covering his employees under insurance
except in cases where the liability in respect of them is, one arising under the
Workmen‘s Compensation Act. Obviously, as determined by that Tribunal.
We shall now examine the decision in Swaran Singh (supra) on which
practically the whole of the arguments on behalf of the claimants was rested. On
examining the facts, it is found that, that was a case which related to a claim by a
third party. In claims by a third party, there cannot be much doubt that once the
liability of the owner is found, the insurance company is liable to indemnify the
owner, subject of course, to any defence that may be available to it under Section
149(2) of the Act. In a case where the liability is satisfied by the insurance
company in the first instance, it may have recourse to the owner in respect of a
claim available in that behalf. Swaran Singh (supra) was a case where the
insurance company raised a defence that the owner had permitted the vehicle to
be driven by a driver who really had no licence and the driving licence produced
by him was a fake one. Their Lordships discussed the position and held ultimately
that a defence under Section 149(2)(a)(ii) of the Act was available to an insurer
when a claim is filed either under Section 163A or under Section 166 of the Act.
The breach of a policy condition has to be proved to have been committed by the
insured for avoiding liability by the insurer. Mere absence of or production of
fake or invalid driving licence or disqualification of the driver for driving at the
relevant time, are not in themselves defences available to the insurer against either
the insured or the third party. The insurance company to avoid liability, must not
only establish the available defence raised in the concerned proceeding but must
also establish breach on the part of the owner of the vehicle for which the burden
of proof would rest with the insurance company. Whether such a burden had
been discharged, would depend upon the facts and circumstances of each case.
Even when the insurer, is able to prove breach on the part of the insured
concerning a policy condition, the insurer would not be allowed to avoid its
liability towards the insured unless the said breach of condition is so fundamental
as to be found to have contributed to the cause of the accident. The question
whether the owner has taken reasonable care to find out whether the driving
licence produced by the driver was fake or not, will have to be determined in each
case. If the vehicle at the time of the accident was driven by a person having a
learner‘s licence, the insurance company would be liable to satisfy the award.
The amount that may be awarded to the insurance company against the insurer in
an appropriate case could be recovered even by way of the enforcement of the
very award. The insurance company had to satisfy the claim of the insured in
cases where a defence under Section 149(2) has been established by the Company
in terms of a fake licence or the learner‘s licence. Their Lordships distinguished
Malla Prakasarao Vs. Malla Janaki & Ors. [(2004) 3 S.C.C. 343] wherein it was
held that the insurance company had no liability to pay any compensation where
an accident resulted by a vehicle being driven by a driver without a driving
licence. In other words, a distinction between a case of no licence and a case of
licence which turned out to be fake or deficient was drawn and the liability was
held to stand on different footings.
It is difficult to apply the ratio of Swaran Singh‘s case, to a case not
involving a ―third party‖. The whole protection provided by Chapter XI of the Act
is against third party risk. Therefore, in a case where a person is not a third party
within the meaning of the Act, the insurance company cannot be made
automatically liable merely by resorting to the Swaran Singh (supra) ratio. This
appears to be the position. This position was expounded recently by this Court in
National Insurance Co. Ltd. Vs. Laxmi Narain Dhut [2007 (4) SCALE 36]. This
Court after referring to Swaran Singh (supra) and discussing the law summed up
the position thus:
―In view of the above analysis the following situations emerge:
1. The decision in Swaran Singh‘s case (supra) has no application to
cases other than third party risks.
2. Where originally the license was a fake one, renewal cannot cure
the inherent fatality.
3. In case of third party risks the insurer has to indemnify the amount
and if so advised, to recover the same from the insured.
4. The concept of purposive interpretation has no application to cases
relatable to Section 149 of the Act.
The High Courts/Commissions shall now consider the mater afresh in the
light of the position in law as delineated above.‖
We are in respectful agreement with the above view. (The Oriental
Insurance Company Limited v. Meena Variyal & Ors; Appeal (civil) 5825 of
2006; decided by Hon‘ble Supreme Court on 02.04.2007)
Motor Vehicles Act, 1988 – Ss. 146, 147, 163A & 166 – General Principle
applicable in determining the claim for compensation clarified by holding
that the Tribunal should not forget basic principles of establishing liability
and quantum of compensation – Further held that driver should be made
party because vicarious liability of owner is dependent on the liability of
driver.
Before we proceed to consider the main aspect arising for decision in this
Appeal, we would like to make certain general observations. It may be true that
the Motor Vehicles Act, insofar as it relates to claims for compensation arising
out of accidents, is a beneficent piece of legislation. It may also be true that
subject to the rules made in that behalf, the Tribunal may follow a summary
procedure in dealing with a claim. That does not mean that a Tribunal
approached with a claim for compensation under the Act should ignore all basic
principles of law in determining the claim for compensation. Ordinarily, a
contract of insurance is a contract of indemnity. When a car belonging to an
owner is insured with the insurance company and it is being driven by a driver
employed by the insured, when it meets with an accident, the primary liability
under law for payment of compensation is that of the driver. Once the driver is
liable, the owner of the vehicle becomes vicariously liable for payment of
compensation. It is this vicarious liability of the owner that is indemnified by the
insurance company. A third party for whose benefit the insurance is taken, is
therefore entitled to show, when he moves under Section 166 of the Motor
Vehicles Act, that the driver was negligent in driving the vehicle resulting in the
accident; that the owner was vicariously liable and that the insurance company
was bound to indemnify the owner and consequently, satisfy the award made.
Therefore, under general principles, one would expect the driver to be impleaded
before an adjudication is claimed under Section 166 of the Act as to whether a
claimant before the Tribunal is entitled to compensation for an accident that has
occurred due to alleged negligence of the driver. Why should not a Tribunal
insist on the driver of the vehicle being impleaded when a claim is being filed?
As we have noticed, the relevant provisions of the Act are not intended to jettison
all principles of law relating to a claim for compensation which is still based on a
tortious liability. The Tribunal ought to have, in the case on hand, directed the
claimant to implead Mahmood Hasan who was allegedly driving the vehicle at the
time of the accident. Here, there was also controversy whether it was Mahmood
Hasan who was driving the vehicle or it was the deceased himself. Surely, such a
question could have been decided only in the presence of Mahmood Hasan who
would have been principally liable for any compensation that might be decreed in
case he was driving the vehicle. Secondly, the deceased was employed in a
limited company. It was necessary for the claimants to establish what was the
monthly income and what was the dependency on the basis of which the
compensation could be adjudged as payable. Should not any Tribunal trained in
law ask the claimants to produce evidence in support of the monthly salary or
income earned by the deceased from his employer Company? Is there anything in
the Motor Vehicles Act which stands in the way of the Tribunal asking for the
best evidence, acceptable evidence? We think not. Here again, the position that
the Motor Vehicles Act vis-a-vis claim for compensation arising out of an
accident is a beneficent piece of legislation, cannot lead a Tribunal trained in law
to forget all basic principles of establishing liability and establishing the quantum
of compensation payable. The Tribunal, in this case, has chosen to merely go by
the oral evidence of the widow when without any difficulty the claimants could
have got the employer company to produce the relevant documents to show the
income that was being derived by the deceased from his employment. Of course,
in this case, the above two aspects become relevant only if we find the insurance
company liable. If we find that only the owner of the vehicle, the employer of the
deceased was liable, there will be no occasion to further consider these aspects
since the owner has acquiesced in the award passed by the Tribunal against it.
(The Oriental Insurance Company Limited v. Meena Variyal & ors; Appeal
(civil) 5825 of 2006; decided by Hon‘ble Supreme Court on 02.04.2007)
Muslim Law Muslim Woman (Protection of Rights on Divorce) Act, 1986.
(1) Whether a Muslim Divorced Wife is entitled to get maintenance
allowance under section 3(1)(a) Muslim Woman (Protection of Rights on
Divorce) Act, 1986 beyond iddat period.
(2) Whether a divorced Muslim woman who is not remarried and who is not
able to maintain herself after the iddat period can proceed as provided under
Section 4 of the Act against her relative who are liable to maintain her.
(3) Whether liability of the Muslim husband to his divorced wife arising
under Section 3 (i) (a) of the Act to pay maintenance is not confined to the
iddat period.
(4) Whether the provisions of the Act offend Article 14, 15 and 21 of the
Indian Constitution.‖
Held: As under: -
(1) A Muslim husband is liable to make reasonable and fair provision for
the future of the divorced wife which obviously includes her maintenance as well.
Such a reasonable and fair provision extending beyond the iddat period must be
made by the husband within the iddat period in terms of Section 3 (i) (a) of the
Act.
(2) Liability of the Muslim husband to his divorced wife arising under
Section 3 (i) (a) of the Act to pay maintenance is not confined to the iddat period.
(3) A divorced Muslim woman who is not remarried and who is not able
to maintain herself after the iddat period can proceed as provided under Section 4
of the Act against her relative who are liable to maintain her in proportion to the
properties which they inherit on her death according to Muslim law for such
divorced woman including her children and parents. If any of her relative being
unable to pay maintenance, the Magistrate may direct the State Waqf Board
established under the Act to pay maintenance.
(4) The provisions of the Act do not offend Article 14, 15 and 21 of the
Indian Constitution.‖
The position was followed in Sabra Shamim v. Maqsood Ansari (2004 (9)
SCC 616).
Proceedings under Section 125 Cr.P.C. are civil in nature. Even if the Court
notices that there was a divorced woman in the case in question, it was open to
him to treat it as a petition under the Act considering the beneficial nature of the
legislation. Proceedings under Section 125 Cr.P.C. and claims made under the Act
are tried by the same Court. In Vijay Kumar Prasad v. State of Bihar and Ors.
(2004 (5) SCC 196), it was held that proceedings under Section 125 Cr.P.C. are
civil in nature. It was noted as follows:
―14. The basic distinction between Section 488 of the old Code and
Section 126 of the Code is that Section 126 has essentially
enlarged the venue of proceedings for maintenance so as to move
the place where the wife may be residing on the date of
application. The change was thought necessary because of certain
observations by the Law Commission, taking note of the fact that
often deserted wives are compelled to live with their relatives far
away from the place where the husband and wife last resided
together. As noted by this Court in several cases, proceedings
under Section 125 of the Code are of civil nature. Unlike clauses
(b) and (c) of Section 126(1) an application by the father or the
mother claiming maintenance has to be filed where the person
from whom maintenance is claimed lives.‖
Accordingly, we set aside the order impugned of the High Court and remit
the matter for fresh consideration.
The High Court while deciding the matter shall keep in view the principles
indicated above. Since the matter is pending since long, the High Court shall
dispose of the matter within six months from the date of receipt of this order to
avoid unnecessary delay. We direct the parties to appear before the High Court
on 23rd
July 2007. We request the Chief Justice of the High Court to list the
matter before the appropriate Bench. (Iqbal Bano v. State of U.P. and Anr.
Appeal (Crl.) 795 of 2001, decided by Supreme Court on 05/06/2007)
NDPS Act NDPS Act - Bail – Under Section 37 of the NDPS Act
Every offence punishable under this Act has been declared to be
cognizable and non-bailable. Under clause (b) of Section 37 a rider has been
provided that no person accused of an offence punishable for a term of
imprisonment of five years or more shall be released on bail or on his own bond
unless the Public Prosecutor has been given an opportunity to oppose the
application for such release, and where the Public Prosecutor opposes the
application, the Court is satisfied that there are reasonable grounds for believing
that he is not guilty of such offence and that he is not likely to commit any
offence while on bail.
Here, in the present case 150 gm of Charas, which is more than small
quantity of 100 gms. prescribed has been recovered. Thus, the applicant from his
own showing was in possession of 50 gm. extra quantity of Charas, and the
punishment which has been provided for said contravention under Section 20,
runs between ten years. In the present case for recovery small quantity of Charas
i. e. 100 gms. Maximum punishment is six months, since only 50 gm. extra
Charas is alleged to have been recovered, the maximum punishment which can be
imposed may not be more than 5 years, prima facie in the facts of the case.
Seeing the way and manner in which recovery has been made, and the
nature of the offence and the small extra quantity of Charas is alleged to have
been recovered from the applicant, and that applicant has no criminal history, he
is directed to be released on bail in case crime No. 336 of 2007, under Section
8/20 of the NDPS Act, Police Station Tajganj, District Agra, on his furnishing
personal bond and two sureties, each in the like amount, to the satisfaction of the
Court concerned. (Ram Kishor v. State of U.P; Criminal Misc. Bail
Application No. 11414 of 2007, Decided on 5-6-07 by Hon‘ble Allahabad
High Court)
S. 42 & 43 NDPS Act compared – Scope and applicability explained:
The next question is whether Section 42 of the NDPS Act applies to the facts
of this case. In our view Section 42 of the NDPS Act has no application to the
facts of this case. Section 42 authorises an officer of the departments
enumerated therein, who are duly empowered in this behalf, to enter into and
search any such building, conveyance or place, if he has reason to believe
from personal knowledge or information given by any person and taken down
in writing that any narcotic drug or psychotropic substance etc. is kept or
concealed in any building, conveyance or enclosed place. This power can be
exercised freely between sunrise and sunset but between sunset and sunrise if
such an officer proposes to enter and search such building, conveyance or
enclosed place, he must record the grounds for his belief that a search warrant
or authorization cannot be obtained without affording opportunity for the
concealment of evidence or facility for the escape of an offender.
Section 43 of the NDPS Act provides that any officer of any of the
departments mentioned in Section 42 may seize in any public place or in
transit any narcotic drug or psychotropic substance etc. in respect of which he
has reason to believe that an offence punishable under the Act has been
committed. He is also authorized to detain and search any person whom he
has reason to believe to have committed an offence punishable under the Act.
Explanation to Section 43 lays down that for the purposes of this section, the
expression ―public place‖ includes any public conveyance, hotel, shop, or
other place intended for use by, or accessible to, the public.
Sections 42 and 43, therefore, contemplate two different situations. Section 42
contemplates entry into and search of any building, conveyance or enclosed
place, while Section 43 contemplates a seizure made in any public place or in
transit. If seizure is made under Section 42 between sunset and sunrise, the
requirement of the proviso thereto has to be complied with. There is no such
proviso in Section 43 of the Act and, therefore, it is obvious that if a public
conveyance is searched in a public place, the officer making the search is not
required to record his satisfaction as contemplated by the proviso to Section
42 of the NDPS Act for searching the vehicle between sunset and the sunrise.
(State, NCT of Delhi v. Malvinder Singh; Appeal (Crl.) 433 of 2002,
Decided by Hon‘ble Supreme Court on 21/06/2007)
N.D.P.S. Act- S. 50 – Compliance - Requirement discussed - Meaning of
words ―search any person‖ explained-
The word ―person‖ has not been defined in the Act. Section 2(xxix) of the
Act says that the words and expressions used herein and not defined but defined
in the Code of Criminal Procedure have the meanings respectively assigned to
them in that Code. The Code, however, does not define the word ―person‖.
Section 2(y) of the Code says that the words and expressions used therein and not
defined but defined in the Indian Penal Code, 1860 have the meanings
respectively assigned to them in that Code. Section 11 of the Indian Penal Code
says that the word ―person‖ includes any Company or Association or body of
persons whether incorporated or not. Similar definition of the word ―person‖ has
been given in Section 3(42) of the General Clauses Act. Therefore, these
definitions render no assistance for resolving the controversy in hand.
One of the basic principles of interpretation of Statutes is to construe them
according to plain, literal and grammatical meaning of the words. If that is
contrary to, or inconsistent with, any express intention or declared purpose of the
Statute, or if it would involve any absurdity, repugnancy or inconsistency, the
grammatical sense must then be modified, extended or abridged, so far as to avoid
such an inconvenience, but no further. The onus of showing that the words do not
mean what they say lies heavily on the party who alleges it. He must advance
something which clearly shows that the grammatical construction would be
repugnant to the intention of the Act or lead to some manifest absurdity (See
Craies on Statute Law, Seventh ed. page 83-85). In the well known treatise -
Principles of Statutory Interpretation by Justice G.P. Singh, the learned author has
enunciated the same principle that the words of the Statute are first understood in
their natural, ordinary or popular sense and phrases and sentences are construed
according to their grammatical meaning, unless that leads to some absurdity or
unless there is something in the context or in the object of the Statute to suggest
the contrary (See the Chapter - The Rule of Literal Construction -page 78 - Ninth
ed.). This Court has also followed this principle right from the beginning. In
Jugalkishore Saraf v. Raw Cotton Co. Ltd. AIR 1955 SC 376.
S.R. Das, J. said: -
―The cardinal rule of construction of statutes is to read the statute
literally, that is, by giving to the words used by the legislature their
ordinary, natural and grammatical meaning. If, however, such a
reading leads to absurdity and the words are susceptible of another
meaning the Court may adopt the same. But if no such alternative
construction is possible, the Court must adopt the ordinary rule of
literal interpretation.‖
A catena of subsequent decisions have followed the same line. It,
therefore, becomes necessary to look to dictionaries to ascertain the correct
meaning of the word ―person‖.
A bag, briefcase or any such article or container, etc. can, under no
circumstances, be treated as body of a human being. They are given a separate
name and are identifiable as such. They cannot even remotely be treated to be part
of the body of a human being. Depending upon the physical capacity of a person,
he may carry any number of items like a bag, a briefcase, a suitcase, a tin box, a
thaila, a jhola, a gathri, a holdall, a carton, etc. of varying size, dimension or
weight. However, while carrying or moving along with them, some extra effort or
energy would be required. They would have to be carried either by the hand or
hung on the shoulder or back or placed on the head. In common parlance it would
be said that a person is carrying a particular article, specifying the manner in
which it was carried like hand, shoulder, back or head, etc. Therefore, it is not
possible to include these articles within the ambit of the word ―person‖ occurring
in Section 50 of the Act.
The scope and ambit of Section 50 of the Act was examined in
considerable detail by a Constitution Bench in State of Punjab v. Baldev Singh;
[1999 (6) SCC 172] and para 12 of the reports is being reproduced below:
―12. On its plain reading, Section 50 would come into play only in
the case of a search of a person as distinguished from search of any
premises etc. However, if the empowered officer, without any prior
information as contemplated by Section 42 of the Act makes a search or
causes arrest of a person during the normal course of investigation into an
offence or suspected offence and on completion of that search, a
contraband under the NDPS Act is also recovered, the requirements of
Section 50 of the Act are not attracted.‖
The Bench recorded its conclusion in para 57 of the reports and sub-paras
(1), (2), (3) and (6) are being reproduced below:
―57. On the basis of the reasoning and discussion above, the
following conclusions arise:
(1) That when an empowered officer or a duly authorized
officer acting on prior information is about to search a
person, it is imperative for him to inform the person
concerned of his right under Sub-section (1) of Section 50
of being taken to the nearest gazetted officer or the nearest
Magistrate for making the search. However, such
information may not necessarily be in writing.
(2) That failure to inform the person concerned about the
existence of his right to be searched before a gazetted
officer or a Magistrate would cause prejudice to an
accused.
(3) That a search made by an empowered officer, on prior
information, without informing the person of his right that
if he so requires, he shall be taken before a gazetted officer
or a Magistrate for search and in case he so opts, failure to
conduct his search before a gazetted officer or a Magistrate
may not vitiate the trial but would render the recovery of
the illicit article suspect and vitiate the conviction and
sentence of an accused, where the conviction has been
recorded only on the basis of the possession of the illicit
article, recovered from his person, during a search
conducted in violation of the provisions of Section 50 of
the Act.
That in the context in which the protection has been incorporated in
Section 50 for the benefit of the person intended to be searched, we do not express
any opinion whether the provisions of Section 50 are mandatory or directory, but
hold that failure to inform the person concerned of his right as emanating from
Sub-section (1) of Section 50, may render the recovery of the contraband suspect
and the conviction and sentence of an accused is bad and unsustainable in law.‖
(State of Haryana v. Suresh; Appeal (Crl.) 248/2001 & State of Rajasthan v.
Babu Ram; Appeal (crl.) 1097 of 2002, Decided by Hon‘ble Supreme Court
on 5.6.2007 )
Negotiable Instruments Act
S. 138 & 141 – When an offence is alleges to be committed by a company
– Who is liable for the prosecution – Held, every person who is incharge of
and is responsible to the company for the conduct of the business of the
company.
A Company, though a legal entity, cannot act by itself but can only act
through its directors. Normally, the Board of Directors act for and on behalf of the
company. This is clear from Section 291 of the Companies Act which provides
that subject to the provisions of that Act, the Board of Directors of a Company
shall be entitled to exercise all such powers and to do all such acts and things as
the Company is authorized to exercise and do.
Therefore, a person in the commercial world having a transaction with a
company is entitled to presume that the directors of the company are incharge of
the affairs of the company. If any restrictions on their powers are placed by the
memorandum or articles of the company, it is for the directors to establish it at the
trial. It is in that context that Section 141 of the Negotiable Instruments Act
provides that when the offender is a company, every person, who at the time when
the offence was committed was incharge of and was responsible to the company
for the conduct of the business of the company, shall also be deemed to be guilty
of the offence along with the company. It appears to us that an allegation in the
complaint that the named accused are directors of the company itself would usher
in the element of their acting for and on behalf of the company and of their being
incharge of the company. While Section 138 made a person criminally liable on
dishonour of a cheque for insufficiency of funds or the circumstances referred to
in the Section and on the conditions mentioned therein, Section 141 laid down a
special provision in respect of issuance of cheques by companies and
commissions of offences by companies under Section 138 of the Negotiable
Instruments Act. Therein, it was provided that if the person committing an offence
under Section 138 of the Act was a company, every person, who at the time the
offence was committed, was in charge of and was responsible to the company for
the conduct of the business of the company as well as the company, shall be
deemed to be guilty of the offence and shall be liable to be proceeded against and
punished accordingly. The scope of Section 141 has been authoritatively
discussed in the decision in S.M.S. Pharmaceuticals Ltd. (supra) binding on us
and there is no scope for redefining it in this case. Suffice it to say, that a
prosecution could be launched not only against the company on behalf of which
the cheque issued has been dishonoured, but it could also be initiated against
every person who at the time the offence was committed, was in charge of and
was responsible for the conduct of the business of the company. In fact, Section
141 deems such persons to be guilty of such offence, liable to be proceeded
against and punished for the offence, leaving it to the person concerned, to prove
that the offence was committed by the company without his knowledge or that he
has exercised due diligence to prevent the commission of the offence. Sub-section
(2) of Section 141 also roped in Directors, Managers, Secretaries or other officers
of the company, if it was proved that the offence was committed with their
consent or connivance. (N. Rangachari v. Bharat Sanchar Nigam Limited;
Criminal Appeal No. 592 of 2007, decided by Hon‘ble Supreme Court on
19.4.2007 = 2007 (3) Supreme 626)
Panchayats and Zila Parishads
U.P. Panchayat Raj Act – S. 12(c) – U.P. Panchayat Raj (Settlement of
Election Disputes) Rules – R. 3(1) proviso – Dismissal of election petition for
non-compliance of R. 3 of above mentioned Rules, 1994
The rule 3(1) proviso in so far as it provides that the election petition
shall not be entertained unless it is accompanied by the treasury challan to
show that the amount of Rs. 50/-has been deposited is mandatory whereas
the manner of deposit cannot be said to be mandatory failure of which may
entail dismissal of the election petition. In case the deposit is shown for the
Gaon Sabha in question substantial compliance is fully proved and the
election petition need not be dismissed on the ground that the deposit is not
in the particular account i.e. personal ledger account of the Gaon Sabha. the
petitioner himself has filed treasury challan by which the amount was
deposited in the State Bank of India by the petitioner of village Mohinipur.
The aforesaid deposit clearly makes out substantial compliance of Rule 3 and
the election petition is fully entertained on the strength of such deposit.
(Kamal Singh v. State of U.P.; 2007 (3) ALJ 146)
Precedents Constitution of India - Art. 141 – Obitur dictum of Supreme Court –
May be binding only on High Courts in absence of direct pronouncement on
that question elsewhere by Supreme Court.
An Obitur dictum of SC may be binding only on the High Court in
absence of a direct pronouncement on that question elsewhere by SC but as far as
this court is concerned, though not binding, it does not have clear persuasive
authority. (Oriental Insurance Company Ltd. v. Meena Variyal & Ors. 2007
(3) ALJ 596 (SC)
Prevention of Corruption Act
S. 19, 7 – Sanction for prosecution – When necessary
The Opposite Party was demanding of bribe was not a part of the function
of the public servant and S. 7 of the Act provides for doing or forbearing to do
any official act or for showing or for bearing to show, in the exercise of his
official functions, favour or disfavour to any person or for rendering or attempting
to render any service or disservice to any person and since demand of bribe was
not part of the official functions, no sanctions was required. it is to be noticed that
the words rendering or attempting to render are also included in S. 7 of the Act
and any attempt, therefore, to demand of bribe must be deemed to be covered
within the parameter of S. 7 of the Act. If this argument advanced by the counsel
for the O.P. no. 2 were to be accepted, the very purpose of the Prevention of
Corruption Act which is to inhibit bribery and corruption would be frustrated and
such a construction cannot be deemed to be intended by the Legislature. If any
public servant demands bribe, he demands the same because he is a public servant
and wants to show favour or disfavour in the discharge of his official duty and,
therefore, it cannot be said that demanding bribe by an official would not be
covered under S. 7 of the Act because demanding of bribe is not a part of his
official function. Hence, contention propounded by the counsel for the O.P. no. 2
cannot, therefore, prevail and the view taken by the Anti-Corruption Judge in the
impugned order is not correct and needs to be set aside. (Prabhat Kumar
Srivastava v. State of Uttar Pradesh and Anr. 2007 (3) ALJ 140)
Prevention of Food Adulteration Act 1954
Ss. 7(1)- 16 Margin of variation is small and case is old one- whether
deserve lenient view on punishment;
Appellant made a plea for affording the benefit as given by this Court in
N. Sukumaran Nair‘s case (supra) and Santosh Kumar v. Municipal Corporation
and Anr. (2000 (9) SCC 151). The plea is made on the ground that the occurrence
took place in 1984 and the margin of variation is very small.
It is pointed out that the appellant has already suffered custody for more
than three months. We direct that a sum of Rs.7,500/-, as fine, be deposited
within a period of six weeks from today. (Om Prakash v. State (NCT) of Delhi;
Appeal (crl.) 534 of 2001, Decided by Hon‘ble Supreme Court on 5.6.2007)
Provincial Small Cause Courts Act
Ss. 10, 15 (U.P. Amendment) Sch. 2, Art. 4 – Jurisdiction of Small Cause
Court Act
The U.P. State amendments in Section 15 of the Provincial Small Cause
Courts Act specifically provides that a suit in relation to a relief for eviction by
the lessor against the lessee from a building after determination of the lease shall
be congnizable by the Court of Judge Small Causes only. S. 16 of the said Act
makes it an exclusive jurisdiction of that Court. Therefore, this suit being a suit
for relief of eviction of the tenant from the leased premises is subject matter
covered under the exclusive jurisdiction of the Court of Small Causes only and it
would not lie before any regular Civil Court. (M/s Bindal Logistics Pvt. Ltd. v.
M/s Ashoka Handloom Factory & Ors. 2007 (1) ALJ 148)
Public Policy Essential Commodities Act – S. 3 – Fair price shop licence – Revocation
challenged on the ground that the order of revocation is cryptic and
unreasoned – Validity of.
I would not scruple to say that impugned order passed has its foundation
in the control order issued under the Essential Commodities Act and by this
reckoning, the function performed by the sub-divisional officer is a statutory
function and he is obligated upon to reckon with and weigh with each and every
averment contained in the reply submitted by the petitioner in response to the
chargesheet by means of catena of decisions, it has been stressed time and again
that the officer performing the statutory function must give reasons in as much as
failure to give reasons amounts to denial of justice. The right to reason is an
indispensable part of a sound judicial system. To be precise, one of the salutary
requirements of natural justice is spelling out reasons for the order made. (Jagat
Bhan Singh v. State of U.P. 2007 (2) ALJ 639)
Rent Control and Eviction
S. 21(1)(b) - Release of premises – Ground that building was in
dilapidated condition. Release order must be based on the fact that finding of
Prescribed Authority was based on cogent reasons. Prescribed under Rule 17
of U.P. Urban Building (Regulation of Letting, Rent and Eviction) Rules, 72
It cannot be said that the landlord had not proved that the shop in dispute
is in dilapidated condition or that Prescribed Authority has recorded finding of
fact regarding dilapidated condition of the building on no evidence. The
Prescribed Authority has considered the evidence of witnesses who have deposed
that the shop in dispute is in dilapidated condition and thereafter recorded the
finding of fact that effect.
A perusal of the judgment of Prescribed Authority reveals that it has
considered this aspect of the case and recorded a finding of fact that the
provisions of Rule 17 have been complied with by the landlord.
The finding of fact recorded by the Prescribed Authority is not based only on the
report of the Commissioner nor it has recorded the finding merely because the
building is 70 years old. To the contrary, the finding of the Prescribed Authority is
based on cogent reasons.
From the findings, quoted in the body of judgment, it is crystal clear that
the Prescribed Authority has not gone beyond pleadings and landlord has
provided his case with clarity that the building was in dilapidated condition.
(Vishal Chand Jain v. IX Addl. District Judge, Saharanpur & Ors.; 2007 (3)
ALJ 74)
Sections 4, 7, 15 - Eviction of Unauthorised Occupant - Jurisdiction of
Estate Officer.
The Scheme of 1971 Act including S. 15 of 1971 Act give a clear
indication that 1971 Act was enacted as a Special Act for the special purpose.
Section 15 of the 1971 Act clearly confers the jurisdiction on that Court to
entertain any suit or proceeding in respect of eviction of any person who is
unauthorised occupant of any public premises. The submission of Sri Asthana is
that there being an arbitration clause in agreement between the parties, the
proceeding under 1971 Act cannot be drawn, is hopelessly devoid of any merit. In
the Arbitration and Conciliation Act, 1996 also no provision could be pointed out
which preclude jurisdiction of the Special Act under Ss. 4/7 of 1971 Act for
eviction of unauthorised occupant. Section 42 provides for jurisdiction of a
limited purpose, with respect to an arbitration agreement in any application under
that part. Present is not a case in which S.42 has any relevance. If there is an
arbitration clause the jurisdiction of an authority under a Special Act is barred by
the said clause. (Onkar Nath S/o Deewan Chandra v. Union of India & Ors;
2007 (2) ALJ 307)
S. 21(1)(a) – Release of shop – Bonafide need and comparative hardship –
Determination of.
In the present case Hon‘ble court has observed that need for opening fast
food restaurant in hotel and for having good attractive reception cum lobby cannot
be said to be not a bonafide need. Hotel business is expanding rapidly and hotel,
which provides better facilities, is expected to attract more and better customers.
In respect of comparative hardship, it is admitted that the tenant had alternative
accommodation at a distance about 150 meters from the shop in dispute. In
addition, landlord also offered alternative accommodation to tenant. Hence,
finding of bonafide need and comparative hardship recorded in favour of landlord.
(M/s Hotel Vilas and Anr. v. Anil Roy and Ors.; 2007 (3) ALJ 427)
Societies Registration Act
S. 3-A – Brahmrishi Sri Devrahababa Surveshwar Kalyan Mahamandal
Byelaws, Cl. 6(1) Ka, Kha – Presidentship of religious society – Declaration
of result of Presidentship in violation of byelaws of society by the Assistant
Registrar, Society would be erroneous in the law and liable to the set aside.
There is no provision under the Byelaws of the society that Sadhu Samaj
shall elect the successor and the President of the Society after the death of the
founding President. The Sadhus who allegedly passed the resolution in favour of
the respondent no. 3 were not members of the society. Under Cl. 6(1) Ka, it was
provided that successor of President would be either his disciple or disciple of
Brahmarishi Sri Devrahababa with the further restriction that he should have
renounced the world. There is no provision under the byelaws that the successor
of the founder President as elected by the Sadhu Samaj shall also be the President
of the Society. A formal resolution is required to be passed and procedure
prescribed under the byelaws for inducting new member is necessary to be
followed before reinducting an expelled member for about 11 months after the
acquittal of Respondent no. 3, the founder President remained alive still he did not
re-induct him as member of the society or office bearer of the executive body of
the society accordingly, even if some letter was written by the founder President
before removal of the Respondent no. 3, it would not be of any help to the
Respondent no. 3. On the basis of the said letter Respondent no. 3 cannot say that
he is entitled to become President after the death of the founder President.
Accordingly , impugned order is patently erroneous in law and is liable to be set
aside. (Swami Rameshwar Prapannacharya Daraganj, Allahabad v. State of
U.P. 2007; (3) ALJ 390)
S. 6 – Suit by registered society – Who shall be authorized to institute a
suit.
In absence of such specific provisions under the rules of a society, it is for
the committee of management or governing body to determine as to who shall
represent the society in the court of competent jurisdiction for institution of a suit.
Only a person authorized by the rules or by the governing body or the executive
body to institute a suit shall be entitled to file a suit or a petition in this Court or in
other Court or tribunals. Under Section 6 of the Act, it shall be incumbent upon
the members of the society while framing rules or byelaws to categorically
provide as to who shall be entitled to sue on behalf of the society in representative
capacity. In the absence of the categorical provisions in the rules or byelaws of
the society, non of the officer bearers like President, Secretary or Manager or the
Chairman shall be entitled to institute a suit or file an objection in representative
capacity. (Umesh Chandra and Anr. v. Mahila Vidyalaya Society, Lucknow
and others; 2007 (2) ALJ (NOC) 292)
Specific Relief Act S. 16 – Transfer of Property Act – S. 53A – Whether defence U/s. 53A of
the T.P. Act is available in case of oral agreement of sale.
In the case of an oral agreement of sale the defence U/s. 53A of the T.P.
Act is not available to a party, who alleges to be in possession of property.
The relief of Specific Performance is discretionary relief. Except the oral
evidence, there is no clear proof relating to the terms and condition of the
contract, like delivery of possession and obtaining permission from urban land
ceiling authorities. The essential terms and conditions of a concluded contract was
not established. In such circumstances order for refund of earnest money was
proper which was sought in the form of alternative relief. Refusal to grant relief of
specific performance on the strength of an oral agreement of sale cannot be said
improper. (V.R. Sudhakara Rao & Ors. v. T.V. Kameswari; Civil Appeal Nos.
8303-8304 of 2003, decided by Hon‘ble Supreme Court on 18.4.2007 = 2007
(3) Supreme 592)
Stamp Act S. 47A (U.P. Amendment) – U.P. Stamp (Valuation of Property) Rules, R.
3, 5 – Valuation of Property for sale of agriculture land – Presumption
drawn by Collector and fixation of valuation presuming it to be non-
agriculture would be illegal – Every valuation has to be calculated according
to the principles laid down under Rules 3 and 5 of above mentioned rules.
There is noting in the Uttar Pradesh Stamp (Valuation of Property) Rules,
1997 that the Collector may presume transfer of an agricultural land less than 0.16
acre as non-agricultural even if the land is being used for the agricultural
purposes. For assessing valuation he has to consider all relevant factors mentioned
under Rule 3(1)(a)(i) of the Uttar Pradesh Stamp (Valuation of Property) Rules,
1997 so far as agricultural land is concerned. In present case, the total area which
was purchased by the petitioner is .24 acre which is fully cultivable and could be
used for agricultural purposes. the presumption drawn by the Collector and
fixation of valuation presuming it non-agricultural is wholly unwarranted in law.
Every valuation has to be calculated according to the principles laid down under
Rules 3 and 5 of the Uttar Pradesh Stamp (Valuation of Property) Rules, 1997
framed under the Indian Stamp Act. (Ram Sewak and Anr. v. State of U.P. and
Anr.; 2007 (3) ALJ 114)
S. 56 – Deficiency of Stamp Duty – Determination of Imposition of
penalty.
The Court was of the view that the findings recorded by the authorities
below suffer from error of law apparent on the face of record. The writ ptition
deserves to be allowed on the ground that according to the order passed by the
Collector under Rule 340-A of the Stamp Rules, if area of the land purchased is
less than 0.16 acre said transfer is presumed as non-agricultural and stamp duty is
accordingly charged. In the present case the land covered under the sale deed is
0.24 acre and, therefore, under the order of the Collector, the land purchased
through the impugned sale deed could not be presumed as non-agricultural land.
Transferees are real brothers, who purchased 0.24 acre land in a village for
agricultural purposes is also clear from the sale deed and other materials available
on record. The authorities below acted illegally in presuming the land covered
under the sale deed as non-agricultural land and assessing as such accordingly on
the basis of such presumption.
In view of above, impugned orders imposing additional stamp duty and
penalty was unwarranted and unsustainable law. Impugned orders are liable to be
quashed on this ground alone. (Ram Sewak v. State of U.P.; 2007 (102) RD 511)
Taxation
Income Tax Act – S. 147 – Income escaping assessment – What amounts
to
For taking proceeding under S. 147 the Assessing Authority should have
reasons to believe that any income chargeable to tax has escaped assessment for
any assessment year. He can assess or reassess such income and also any other
income chargeable to tax which has escaped assessment and which comes to his
notice subsequently in the course of the proceeding under S. 147. He can also
recomputed the loss or the depreciation allowance or any other allowance as the
case may be for the relevant assessment year. Thus, if an allowance, which was
not admissible under the Act, has been allowed, it would be deemed to be a case
where the income chargeable to tax has escaped assessment. (M/s Universal
Subscriptions Agency Pvt. Ltd. v. The Joint Commissioner of Income Tax,
Special Ranger, Kanpur; 2007 (1) ALJ 376 (DB))
Sales Tax – Purchase Tax – Declared goods – AYs 1994-95 abd 1996-97 to
1999-2000 – Provisions in State Act (S. 5-Am Kerala General Sales Tax Act,
in this case) for levy of purchase tax on taxable goods on which no sales tax
was payable – Applicability.
The Respondent Revenue contended that the purchase tax under S. 5A of
the State Act was capable of being levied only where no sales tax was levied on
the taxable goods u/s 5 thereof and thus only a single-point levy or one-stage levy
took place i.e. either sales tax or purchase tax and not both. The first aspect of the
arguments of the respondent is with respect to the impact of exemption upon the
liability to tax. In our opinion, exemption can only operate when there has been a
valid levy, for if there was no levy at all, there would be nothing to exempt.
(Peekay Re-Rolling Mills Pvt. Ltd. v. Asst. Commissioner and another;
(2007) 4 SCC 30)
Tort Motor Vehicles Act - Ss. 147, 2(14) – Goods vehicle – Passenger travelling
in goods vehicles – Insurer not liable to pay compensation in case of injury or
death of gratuitous passenger.
A bare reading of the provisions makes it clear that the legislative intent
was to prohibit goods vehicle from carrying any passenger. This is clear from the
expression ‗in addition to passengers‘ as contained in definition of ‗goods
vehicle‘ in the old Act. The position becomes further clear because the expression
used is ‗goods carriage‘ is solely for the carriage of goods. Carrying of passengers
in a goods carriage is not contemplated in the Act. There is no provision similar to
Cl. (ii) of the proviso appended to S. 95 of the old Act prescribing requirement of
insurance policy. Even S. 147 of the Act mandates compulsory coverage against
the death of or bodily injury to any passenger of ‗public service vehicle‘. The
proviso makes it further clear that compulsory coverage in respect of drivers and
conductors of public service vehicle and employees carried in goods vehicle
would by limited to liability under W.C. Act. There is no reference to passengers.
Thus, provisions of the Act do not enjoin any statutory liability on the owner of a
vehicle to get his vehicle insured for any passenger travelling in goods carriage
and the insurer would have no liability therefore. (New India Assurance Co.
Ltd. v. Vedwati and Ors. 2007 (3) ALJ 193)
Torts- Malicious prosecution – meaning of
‗Malicious Prosecution‘ means that the proceedings which are complained
of were initiated from a malicious spirit, i.e. from an indirect and improper
motive, and not in furtherance of justice. (West Bengal State Electricity Board
v. Dilip Kumar Ray; AIR 2007 SC 976)
Transfer of Property Act
Ss. 106, 111(a) – Determination of lease – Notice – Necessity of
From bare perusal of agreement shows that the lease was for a fixed term
of five years which was expired. Clause 14 of the agreement clearly stipulated
that the extension of the lease could be granted by mutual agreement between the
parties. There is no material available on record indicating that the petitioner sort
consent of the landlady for continuance of tenancy after expiry of period of five
years. Hon‘ble Apex Court in Smt. Shanti Devi v. Amal Kumar Banerji, AIR
1981 SC 1550 has held that where a lease is for a definite term, it expires by a
flux of time by reason of section 111(a) of the Transfer of Property Act, as such
service of a notice under section 106 of the said Act is not necessary for
determination of lease. (Union of India and Anr. v. Smt. Jagdish Kaur; AIR
2007 All 67)
Lease – Whether there can be automatical renewal of the lease in absence
of desired to renew lease by the lessor –Held;
There can no automatic renewal and there can be renewal only if it is so
desired by the Central Government. There was no desire in that regard by the
Central Government. (Dy. Superintendent, H.P. Corpn. Ltd. & Anr v.
Kolhapur Agri. Market Commtt. Kolhapur; Appeal (civil) 2903 of 2007,
Decided by Hon‘ble Supreme Court on 20/06/2007)
U.P. Consolidation of Holdings Act
S. 5(1)(c)(iii) – Permission under – When not required.
Plain reading of S. 4(2) of Registration Act makes it clear that a document
becomes operative from ten times of its execution and not from the time of its
registration. Thus the sale deed in favour of petitioner no.1 became operative from
the date of its execution i.e. 8.10.1987. Publication of notification under S. 4(2) of
the Act having been made subsequent to the said date i.e. on 10.10.1987, no
permission from Settlement Officer Consolidation was required on the date of
execution and the sale deed cannot be said to be hit by provisions of section
5(1)(c)(iii) of the Act. (Smt. Zakia Kausar v. Dy. Director of Consolidation,
Moradabad;)
U.P. Imposition of Ceiling on Land Holdings Act
S. 48 – Revision – Alongwith delay condonation application filed after
lapse of 20 years against compromise order passed by Appellate Court –
Revision allowed without recording any finding regarding question of delay –
Unsustainable.
Petitioner submitted that there was inordinate delay in filing of the
revision and the Deputy Director of Consolidation has not passed any order
condoning the delay. It is also submitted that the appeal was filed by the
respondent themselves. Therefore it is difficult to believe that they did not enquire
about the fate of the appeal for a long period of 20 years. In paragraph no. 18 of
the writ petition it has been alleged the revision without recording any finding
regarding the question of delay. The respondent could not refer to any order that
may have been passed by the Dy. Director of Consolidation allowing the delay
condonation application. It was necessary for the Dy. Director of Consolidation to
decide the question of delay. Without deciding the delay condonation application,
the revision could not have been allowed. (Ram Anugrah v. Dy. Director of
Consolidation; Allahabad [2007 (102) RD 736)
U.P. Land Revenue Act
S. 48 – Scope of – Revision Court is competent to entertain a revision
against an appellable order where no appeal has been filed.
The Dy. Director of Consolidation has wide powers under S. 48 of the Act
to entertain a revision. The Dy. Director of Consolidation can exercise revisional
jurisdiction under S. 48 against an appealable order passed by the Consolidation
Officer where no appeal has been filed. The revisions filed by the petitions were
under S. 48 of the Act. Considering the fact that the matter is a very older one, it
is appropriate that the Dy. Director of Consolidation decides the matter. (Brij lal
v. Dy. Director of Consolidation; 2007(102) RD 496)
S. 201 – Restoration - Allowing application to set aside order of Board of
Revenue dismissing appeal in default – Grounds for.
In the instant case, ground taken by appellant that one month‘s delay in filing the
restoration application, which was not explained and application for amending
memorandum for second appeal pending and order passed on a day of which
appellant had no notice. Hence the court observed that the appellant was entitled
to have application restored because of Board has not found out whether appellant
had notice of the date. It is therefore, application of restoration has been allowed.
(Sobaran Singh v. Board of Revenue and Anrs.; 2007 (2) ALJ DOC 25
(ALL.)
U.P. Municipalities Act
S. 34 - Scope of
S. 34 is a original power of the Prescribed Authority or the District
Magistrate to prohibit execution of a resolution or order of Municipal Board. S.
34 has not application when the punishment order has been passed by the
punishing authority under the U.P. Municipal Servants Rules, 1967. (Executive
Officer, Nagar Panchayat Chandauli and Anr. v. State of U.P. and Others.;
2007 (2) ALJ DOC 17 (ALL.) (DB))
Ss. 74, 76 – U.P. Municipal Servant‘s Appeal Rules, 1967, Rule 3 -Appeal
against order of dismissal of Class IV employee in Nagar Panchayat- Stay by
Divisional Commissioner – validity of.
President of Nagar Panchayat can dismiss or punish such staff only when
there is no Executive officer-Plea that since President has granted permission to
initiate proceedings, ultimate order of Executive Officer is to be treated as order
of President, so as to make it appealable to Divisional Commissioner cannot be
accepted- Divisional Commissioner being not Appellate authority, had no
jurisdiction to entertain& stay dismissal order. (Executive Officer, Nagar
Panchayat, Chandauli & Anr. v. State of U.P. & Ors.; 2007(2) ALJ DOC 17
(ALL.) (DB)
U.P. Recruitment of Dependants of Government Servants
(Dying in Harness) Rule
Compassionate Appointment – Widow or dependent children of deceased
employee can only be appointed.
All public appointment must be in consonance with Art. 16 of Constitution
of India. Exception carved out therefore, are the cases where appointments are to
be given to the widow or dependent children of the employee who died in
harness. Such an exception is carved out with a view to see that family of the
deceased employee who has died in harness does not become a destitute. No
appointment, therefore, on compassionate ground to a person other than those for
whose benefit the exception has been carved out. Other family members of the
deceased employee would not derive any benefit thereunder. (National Institute
of Technology and others v. Neeraj Kumar Singh; AIR 2007 SC 1155)
U.P. Zamindari Abolition and Land Reforms Act
U.P. Zamindari Abolition and Land Reforms Act & Rules. -- Grant of lease
of government lands.
Parganadhikari is merely authorized to sign the lease deed on behalf
of the Governor. The Rules nowhere confer power upon the Parganadhikari
to allot Government land on lease in favour of any individual. (Raj Kumar
Soni & Anr. v. State of U.P. & Anr Appeal (civil); 1763 of 2007 Decided on
03/04/2007)
Will - Mutation Delhi Land Revenue Act, 1954 – Mutation of Agriculture Land on the
basis of a Will – Will under challenge in Civil Court – Civil Court is alone
competent to decide validity and genuineness of Will – Entry in revenue
record have only fiscal purpose i.e. payment of land revenue.
It is well settled that an entry in Revenue Records does not confer title on a person whose name appears in Record of Rights. It is settled law that entries in the Revenue Records or Jamabandi have only ‘fiscal purpose’ i.e. payment of land-revenue, and no ownership is conferred on the basis of such entries. So far as title to the property is concerned, it can only be decided by a competent Civil Court (vide Jattu Ram v. Hakam Singh and Ors.; AIR 1994 SC 1653). As already noted earlier, civil proceedings in regard to genuineness of Will are pending with High Court of Delhi. The validity and genuineness of the Will can only be decided by a competent Civil Court. (Suraj Bhan & Ors. v. Financial Commr. & Ors.; Civil Appeal No. 1971 of 2007, decided by Hon’ble Supreme Court on 16.4.2007 = 2007 (3) Supreme 539)
***
PART – II
Pending Bill(s)
THE GRAM NYAYALAYAS BILL, 2007
___________
ARRANGEMENT OF CLAUSES
___________
CHAPTER I
PRELIMINARY
CLAUSES
1. Short title, extent and commencement.
2. Definitions.
CHAPTER II
GRAM NYAYALAYA
3. Establishment of Gram Nyayalayas.
4. Headquarters of Gram Nyayalaya.
5. Appointment of Nyayadhikari.
6. Qualifications for appointment.
7. Constitution of cadre of Nyayadhikaris of Gram Nyayalayas.
8. Removal of Nyayadhikari.
9. Terms and conditions of Nyayadhikaris.
10. Nyayadhikari not to participate in proceedings in which he is
interested.
11. Nyayadhikari to hold mobile courts and conduct proceedings in
villages.
12. Seal of Gram Nyayalaya.
CHAPTER III
JURISDICATION, POWERS AND AUTHORITY OF GRAM
NYAYALAYA
13. Limits of jurisdiction of Gram Nyayalayas.
14. Criminal jurisdiction.
15. Civil jurisdiction.
16. Power to amend Schedules.
17. Gram Nyayalaya to have exclusive civil and criminal jurisdiction
in certain matters.
18. Certain disputes not to be tried by Gram Nyayalayas.
19. Gram Nyayalayas to close a case in certain circumstances.
20. Limitation.
21. Transfer of pending cases.
22. Duties of ministerial officers.
CHAPTER IV
PROCEDURE IN CRIMINAL CASES
23. Gram Nyayalaya to follow summary procedure.
24. Pronouncement of judgment.
25. Power of Gram Nyayalayas to transfer cases.
26. Legal aid to parties.
27. Power to compound cases.
28. Gram Nyayalayas not to take cognizance of certain offences.
29. Power of Gram Nyayalayas to order amount of fine to be applied
for certain expenses.
CHAPTER V
PROCEDURE IN CIVIL CASES
30. Duty of Gram Nyayalaya to make efforts for conciliation and
settlement of civil disputes.
31. Appointment of Conciliators.
32. Procedure generally.
33. Special procedure in civil disputes.
34. Transfer of civil disputes.
35. Payment of interest in money decrees.
36. Power of the Gram Nyayalaya to issue commissions.
CHAPTER VI
PROCEDURE GENERALLY
37. Proceedings to be in the official language of the State.
38. Evidence to be on oath.
39. Gram Nyayalayas to have the power of Judicial Magistrate of the
first class for summoning any person.
CHAPTER VII
APPEALS
40. Appeal in criminal cases.
41. Appeal in civil cases.
CHAPTER VIII
MISCELLANEOUS
42. Cases pending in or disposed of by other courts.
43. Assistance of police to Gram Nyayalayas.
44. Nyayadhikaris and employees, etc., to be public servants.
45. Inspection of Gram Nyayalayas.
46. Power to remove difficulties.
47. Power of High Court to make rules.
48. Power of State Government to make rules.
THE FIRST SCHEDULE.
THE SECOND SCHEDULE.
Bill No. XXXVII of 2007
THE GRAM NYAYALAYAS BILL, 2007
A
BILL
to provide for the establishment of Gram Nyayalayas for the purposes of
providing access to justice, both civil and criminal, to the citizens at the grass-
roots level and to ensure that opportunities for securing justice are not denied to
any citizen by reason of social, economic or other disabilities and for matters
connected therewith or incidental thereto.
BE it enacted by Parliament in the Fifty-eighth Year of the Republic of India as
follows:–
CHAPTER I
PRELIMINARY
Short title, extent and commencement.
1. (1) This Act may be called the Gram Nyayalayas Act, 2007.
(2) It extends to the whole of India except the State of Jammu and Kashmir, the
State of Nagaland, the State of Arunachal Pradesh, the State of Sikkim and to the
tribal areas.
Explanation.—In this sub-section, the expression ―tribal areas‖ means the areas
specified in Parts I, II, IIA, and III of the table below paragraph 20 of the Sixth
Schedule to the Constitution within the State of Assam, the State of Meghalaya,
the State of Tripura and the State of Mizoram, respectively.
(3) It shall come into force on such date as the Central Government may, by
notification published in the Official Gazette, appoint, and different dates may be
appointed for different States.
Definitions.
2. In this Act, unless the context otherwise requires,—
(a) ―Gram Nyayalaya‖ means a subordinate court established under sub-section
(1) of section 3;
(b) ―Gram Panchayat‖ means an institution (by whatever name called) of
selfgovernment
constituted, at the village level, under article 243B of the Constitution, for
the rural areas;
(c) ―High Court‖ means, —
(i) in relation to any State, the High Court for that State;
(ii) in relation to a Union territory to which the jurisdiction of the High
Court for a State has been extended by law, that High Court;
(iii) in relation to any other Union territory, the highest Court of criminal
appeal for that territory other than the Supreme Court of India;
(d) ―notification‖ means a notification published in the Official Gazette and the
expression ―notified‖ shall be construed accordingly;
(e) ―Nyayadhikari‖ means the presiding officer of a Gram Nyayalaya appointed
under sub-section (2) of section 5;
(f) ―Panchayat at intermediate level‖ means an institution (by whatever name
called) of self-government constituted, at the intermediate level, under article
243B of the Constitution, for the rural areas in accordance with Part IX of the
Constitution;
(g) ―prescribed‖ means prescribed by rules made under this Act;
(h) ―State Government‖, in relation to a Union territory, means the administrator
thereof appointed under article 239 of the Constitution and any reference to
―Governor‖ shall be construed as a reference to the administrator of such Union
territory;
(i) all other words and expressions used but not defined in this Act and defined in
the Code of Civil Procedure, 1908 or the Code of Criminal Procedure, 1973 shall
have the meanings respectively assigned to them in those Codes.
CHAPTER II
GRAM NYAYALAYA
Establishment of Gram Nyayalayas.
3. (1) The State Government shall, for securing access to justice, both civil and
criminal at the grass-roots level to the citizens, by notification, establish one or
more Gram Nyayalayas for every Panchayat at intermediate level or a group of
contiguous Panchayats at intermediate level in a district or where there is no
Panchayat at intermediate level in any State, for a group of contiguous Gram
Panchayats:
Provided that where the State Government is of opinion that there is a need to
establish additional Gram Nyayalayas for any Panchayat at intermediate level it
shall, in consultation with the High Court, by notification, establish such
additional Gram Nyayalayas as it deems fit.
(2) The Gram Nyayalayas established under sub-section (1) shall be in addition to
the civil and criminal courts established under any other law for the time being in
force.
(3) A Gram Nyayalaya shall be the lowest court of subordinate judiciary in the
State.
Headquarters of Gram Nyayalaya.
4. The headquarters of every Gram Nyayalaya shall be located at the headquarters
of the intermediate Panchayat in which the Gram Nyayalaya is established or such
other place as may be notified by the State Government.
Appointment of Nyayadhikari.
5. (1) Every Gram Nyayalaya established under sub-section (1) of section 3 shall
be presided over by a Nyayadhikari.
(2) The Nyayadhikari shall be appointed by the Governor of the State in
consultation with the High Court in accordance with the rules made in this behalf.
Qualifications for appointment.
6. (1) A person shall not be qualified to be appointed as a Nyayadhikari unless
he—
(a) is eligible to be appointed as a Judicial Magistrate of the first class; and
(b) belongs to the cadre of Nyayadhikaris constituted by the Governor in
consultation with the High Court under section 7.
(2) While appointing a Nyayadhikari, representation shall be given, as far as
practicable, to the members of the Scheduled Castes and Scheduled Tribes,
women and any other classes or communities as may be specified by the State
Government from time to time.
Constitution of cadre of Nyayadhikaris of Gram Nyayalayas.
7. The Governor shall, in consultation with the High Court, constitute a cadre of
Nyayadhikaris comprising of persons with integrity and fulfilling the following,
namely:—
(a) he should possess a degree in law from a recognised University;
(b) he should not be more than forty-five years of age at the time of appointment;
(c) he should have proficiency in at least one official language of the State other
than English.
Removal of Nyayadhikari.
8. (1) A Nyayadhikari may be removed from his office on the ground of
incompetence, gross negligence, corruption, malfeasance or conduct unbecoming
of a Nyayadhikari.
(2) Any person who has been removed from the office of Nyayadhikari shall be
ineligible for appointment under the Government.
Terms and conditions of Nyayadhikaris.
9. The salary and allowances payable to and the other terms and conditions of
service of the Nyayadhikaris shall be such as may be prescribed by the State
Government.
Nyayadhikari not to participate in proceedings in which he is interested.
10. The Nyayadhikari shall not participate in the proceedings of the Gram
Nyayalaya if he has any interest or is involved in the subject matter of the dispute
pending consideration or is related to one of the parties to the proceeding and in
such a case the Nyayadhikari shall refer the matter to the District Judge or
Sessions Judge, as the case may be, for transfer of the case to any other Gram
Nyayalaya.
Nyayadhikari to hold mobile courts and conduct proceedings in villages.
11. (1) The Nyayadhikari shall periodically visit the villages falling under his
jurisdiction
and conduct proceedings (including taking of evidence, deciding of cases and the
holding
of mobile court if considered necessary) at any place which it considers is in close
proximity to the place where the parties ordinarily reside or where the whole or
part of the cause of action had arisen:
Provided that where the Gram Nyayalaya decides to hold mobile court outside its
headquarters, it shall give wide publicity as to the date and place where it
proposes to hold mobile court.
(2) The State Government shall extend all facilities to the Gram Nyayalaya
including the provision of vehicles for holding mobile court and additional
security for the Nyayadhikari while conducting proceedings outside its
headquarters.
Seal of Gram Nyayalaya.
12. Every Gram Nyayalaya established under this Act shall use a seal of the court
in such form and dimensions as may be prescribed by the State Government.
CHAPTER III
JURISDICTION, POWERS AND AUTHORITY OF GRAM NYAYALAYA
Limits of jurisdiction of Gram
13. The State Government shall, by notification, define the local territorial limits
of the jurisdiction of any Gram Nyayalaya in consultation with the High Court
and may, from time to time, depending on the workload, alter or readjust the local
territorial limits in like manner.
Criminal jurisdiction.
14. (1) Notwithstanding anything contained in the Code of Criminal Procedure,
1973 or any other law for the time being in force, the Gram Nyayalaya may take
cognizance of an offence on a complaint or on a police report and shall—
(a) try all offences specified in Part I of the First Schedule; and
(b) try offences and grant relief specified under the enactments specified in Part II
of that Schedule:
Provided that where the Gram Nyayalaya, at any stage of the trial, is of the
opinion that the accused should be sentenced to imprisonment exceeding one
year, it may forward the case to the court of session for referring it to the court of
competent jurisdiction.
(2) Without prejudice to the provisions of sub-section (1), the Gram Nyayalaya
shall also try all offences under the Central Acts where—
(i) the maximum punishment provided for is imprisonment not exceeding one
year, whether with or without fine;
(ii) the punishment provided for is only fine;
(iii) the offences are compoundable, whether with or without the permission of
the court, under the Code of Criminal Procedure, 1973 or under any other law for
the time being in force.
(3) Without prejudice to the provisions of sub-sections (1) and (2), the Gram
Nyayalaya shall also try all such offences or grant such relief under the State Acts
by including them in Part III of the First Schedule.
Civil jurisdiction.
15. (1) Notwithstanding anything contained in any other law for the time being in
force and subject to the provisions of the Code of Civil Procedure, 1908 and sub-
section (2), the Gram Nyayalayas shall have jurisdiction to try all original suits
and proceedings of such categories and subject to such pecuniary limits as may be
notified by the High Court from time to time.
(2) The Gram Nyayalaya shall be the lowest court of competent jurisdiction to
hear and dispose of suits of a civil nature falling under the classes of disputes
specified in the Second Schedule.
Power to amend Schedules.
16. (1) Where the Central Government is satisfied that it is necessary or expedient
so to do, it may, by notification, add to or omit any item from the First Schedule
or the Second Schedule, as the case may be, and thereupon the First Schedule, or
the Second Schedule, as the case may be, shall be deemed to have been amended
accordingly.
(2) Every notification issued under sub-section (1) shall be laid before each House
of Parliament.
(3) If the State Government is satisfied that it is necessary or expedient so to do, it
may, in consultation with the High Court, by notification, add to any item in Part
III of the First Schedule or Part III of the Second Schedule or omit from it any
item in respect of which the State Legislature is competent to make laws and
thereupon the First Schedule or the Second Schedule, as the case may be, shall be
deemed to have been amended accordingly.
(4) Every notification issued under sub-section (3) shall be laid before the State
Legislature.
Gram Nyayalaya to have exclusive civil and criminal jurisdiction in certain
matters.
17. Notwithstanding anything contained in the Code of Criminal Procedure, 1973,
or the Code of Civil Procedure, 1908, or any other law for the time being in force
and subject to the provisions of this Act, a Gram Nyayalaya shall have exclusive
jurisdiction in respect of disputes covered by the subject matters specified in
sections 14 and 15.
Certain disputes not to be tried by Gram Nyayalayas.
18. Notwithstanding anything contained in section 13, section 14 or section 15,
the Gram Nyayalaya shall not have jurisdiction to take cognizance of the
following classes of disputes, namely:–
(a) a dispute by or against the Central Government or the State Government or a
public servant for anything which is in good faith done or purported to have been
done by him in his official capacity;
(b) a dispute where one of the parties is a minor or a person of unsound mind;
(c) any claim cognizable by revenue courts.
Gram Nyayalayas to close a case in certain circumstances.
19. If the Nyayadhikari is satisfied that it is necessary in the interest of justice to
close a case, it may, on its own motion or on an application by either party to the
civil dispute, pass orders closing the case, and advise the parties to approach the
appropriate civil court in respect of matters relating to any complicated issue of
fact or law which should be decided by any other competent court of law:
Provided that whenever a case is closed by the Nyayadhikari under this section,
the period for which the case has been pending in it shall be excluded for the
purposes of computing the period of limitation.
Limitation.
20. The provisions of the Limitation Act, 1963, and the provisions of Chapter
XXXVI of the Code of Criminal Procedure, 1973 shall be applicable to the Gram
Nyayalaya.
Transfer of pending cases.
21.(1) The District Court may, with effect from such date as may be notified,
transfer all the cases pending before the court subordinate to it, both civil and
criminal, to the Gram Nyayalaya competent to hear and try.
(2) The Gram Nyayalaya may in its discretion continue with the cases from the
stage at which it was pending before the court from which it was transferred or it
may de novo hear or try the case, as the case may be.
Duties of ministerial officers.
22. (1) The State Government shall determine the nature and categories of the
officers and other employees required to assist the Gram Nyayalaya in the
discharge of its functions and provide the Gram Nyayalaya with such officers and
other employees as it may think fit.
(2) The salaries and allowances payable to and the other conditions of service of
the officers and other employees of the Gram Nyayalaya shall be such as may be
prescribed by the State Government.
(3) The officers and other employees of a Gram Nyayalaya shall perform such
duties as may, from time to time, be assigned to them by the Nyayadhikari.
CHAPTER IV
PROCEDURE IN CRIMINAL CASES
Gram Nyayalaya to follow summary procedure.
23. (1) Subject to the provisions of sub-section (2), the provisions of the Code of
Criminal Procedure, 1973 and the rules made thereunder shall apply to the
proceedings in respect of criminal cases triable by the Gram Nyayalaya under this
Act.
(2) While exercising criminal jurisdiction, the Gram Nyayalaya shall follow the
procedure for summary trials and the provisions of sections 262 to 265 (both
inclusive) of the Code of Criminal Procedure, 1973 shall apply accordingly.
(3) The trial of offences by the Gram Nyayalaya under this Act shall be, as far as
may be, on a day-to-day basis and every case shall be disposed of within a period
of ninety days from the date of its institution.
Pronouncement of judgment.
24. (1) The Gram Nyayalaya shall pronounce its judgment within one week from
the last date of its hearing.
(2) The Gram Nyayalaya shall deliver a copy of its judgment immediately to both
the parties free of cost.
(3) The Gram Nyayalaya shall, in cases where imprisonment has been awarded,
forward
copies of the judgment along with the warrant of commitment to the officer-in-
charge of the jail concerned, the police station concerned, and the Sessions Judge
having jurisdiction.
Power of Gram Nyayalayas to transfer cases.
25. If at any stage of the proceedings it appears to the Gram Nyayalaya that the
case is one which ought to be tried by a Judicial Magistrate of the first class or
any other superior court, or if at the close of a trial, the Gram Nyayalaya is of the
opinion that the accused is guilty and that he ought to receive a punishment more
severe than that which the Gram Nyayalaya is empowered to impose, it shall
submit the case to the appropriate Magistrate having jurisdiction who shall
transfer the case to his own court and proceed according to law.
Legal aid to parties.
26. (1) The State Government shall appoint in each Gram Nyayalaya one or more
advocates for the purpose of conducting the criminal cases in the Gram
Nyayalaya.
(2) Notwithstanding anything contained in sub-section (1) or in the Code of
Criminal Procedure, 1973, in a criminal proceeding before the Gram Nyayalaya,
the complainant may, engage an advocate of his choice and at his expense to
present the case of the prosecution with the leave of the Gram Nyayalaya.
(3) The State Legal Services Authority, constituted under section 6 of the Legal
Services
Authorities Act, 1987, shall prepare a panel of advocates and assign at least two
of them to be attached to each Gram Nyayalaya so that their services shall be
readily available to the parties, if they so desire.
Power to compound cases.
27. Any offence cognizable by a Gram Nyayalaya under this Act may be
compounded with its permission, if such offence is compoundable with or without
the permission of the court under any law for the time being in force.
Gram Nyayalayas not to take cognizance of certain offences.
28. The Gram Nyayalaya shall not take cognizance of any offence which is
punishable with imprisonment for more than one year or if the accused has been
previously convicted and sentenced to suffer imprisonment for a term of one year
or more.
Power of Gram Nyayalayas to order amount of fine to be applied for certain
expenses.
29. In imposing any fine, the Gram Nyayalaya may direct that the whole or any
portion of the fine recovered shall be applied—
(a) towards defraying the expenses incurred in the case by the complainant; or
(b) in giving compensation to the victim of an offence or to a person for any
material loss or damage caused to him by reason of commission of the offence.
CHAPTER V
PROCEDURE IN CIVIL CASES
Duty of Gram Nyayalaya to make efforts for conciliation and settlement of
civil disputes.
30. (1) In every suit or proceeding of a civil nature instituted endeavour shall be
made by the Gram Nyayalaya in the first instance, where it is possible to do so,
consistent with the nature and circumstances of the case, to assist, persuade and
conciliate the parties in arriving at a settlement in respect of the subject matter of
the suit or proceeding, as the case may be, and for this purpose a Gram Nyayalaya
may, subject to the rules made by the High Court in this behalf, follow such
procedure as it may deem fit.
(2) If, in any suit or proceeding, at any stage, it appears to the Gram Nyayalaya
that there is a reasonable possibility of a settlement between the parties, the Gram
Nyayalaya may adjourn the proceedings for such period as it thinks fit to enable
them to make attempts to effect such a settlement.
(3) Where any proceeding is adjourned under sub-section (2), the Gram
Nyayalaya may in its discretion refer the matter to one or more conciliators for
effecting a settlement between the parties.
(4) The power conferred by sub-section (2) shall be in addition to, and not in
derogation of, any other power of the Gram Nyayalaya to adjourn the
proceedings.
Appointment of Conciliators.
31.(1) For the purposes of section 30, the District Judge shall, in consultation with
the District Magistrate, prepare a panel consisting of the names of social workers
at the village level having integrity for appointment as Conciliators who posses
such qualifications and experience as may be prescribed by the High Court.
(2) The sitting fee and other allowances payable to and the other terms and
conditions of engagement of Conciliators shall be such as may be prescribed by
the State Government.
Procedure generally.
32. (1) Subject to the other provisions of this Act, and the rules made thereunder,
the Gram Nyayalaya shall be deemed to be a civil court and shall have all the
powers of such court for dealing with the suits of a civil nature.
(2) The Gram Nyayalaya shall not be bound by the procedure laid down in the
Code of Civil Procedure, 1908 or the rules of evidence as laid down in the Indian
Evidence Act, 1872, but shall be guided by the principles of natural justice and
subject to the other provisions of this Act and any rule made by the High Court,
the Gram Nyayalaya shall have the power to regulate its own procedure including
the fixing of places and times of its proceedings.
(3) In respect of matters of a civil nature for which no express provision has been
made in this Act, the High Court may, by rules, provide for them.
Special procedure in civil disputes.
33. (1) Notwithstanding anything contained in any other law relating to the court
fee, any person desirous of settlement of any dispute or matter of a civil nature
referred to in the Second Schedule may make an application to the Gram
Nyayalaya in such form and in such manner as may be prescribed by the High
Court and accompanied by a fee of one hundred rupees or such other amount as
may be prescribed by the High Court from time to time.
(2) The Gram Nyayalaya shall issue a notice accompanied by a copy of the
application served on the opposite party in such manner as may be prescribed by
the High Court fixing a date for his appearance or to file a written reply.
(3) After the opposite party files his written reply, the Gram Nyayalaya shall fix a
date for hearing and inform all the parties to be present in person or through their
advocates or authorised agents.
(4) On the date fixed for hearing the Gram Nyayalaya shall hear both the parties
in regard to their respective contentions and if the dispute does not require
recording of any evidence, pronounce the decision.
(5) In case any of the parties to the dispute desires to produce oral or documentary
evidence, or both, and the Gram Nyayalaya is of the opinion that the dispute
involves questions of fact which have to be decided by recording oral or
documentary evidence for a just decision, the Gram Nyayalaya shall record the
summary of evidence, if any, on a date fixed for hearing.
(6) Notwithstanding that the procedure laid down in the Code of Civil Procedure,
1908 shall not be applicable to civil disputes or claims before the Gram
Nyayalaya, the Gram Nyayalaya shall, for the purposes of this Act, have the same
powers as are vested in a civil court under the Code of Civil Procedure, 1908
while trying a claim or dispute in respect of the following matters, namely: —
(i) summoning and enforcing attendance of any person or witness and examining
him on oath;
(ii) requiring the discovery and production of any document or other material
object producible as evidence;
(iii) receiving of evidence on affidavits;
(iv) dismissing an application for default or deciding it ex parte;
(v) any other matter which may be prescribed by the State Government.
(7) The Gram Nyayalaya shall have the power to proceed ex parte if any of the
parties does not appear.
(8) In regard to any incidental matter that may arise during the course of the
proceedings, the Gram Nyayalaya shall adopt such procedure as it may deem just
and proper in the interest of justice.
(9) The proceedings shall, as far as is practicable, be consistent with the interests
of justice and the hearing shall be continued on a day to day basis until its
conclusion, unless the Gram Nyayalaya finds the adjournment of the hearing
beyond the following day to be necessary for reasons to be recorded in writing.
(10) The Gram Nyayalaya shall pronounce the judgment within a period of ninety
days from the date of statement of claim application, and within one week of the
last day of hearing of the case.
(11) The judgment shall contain the number of the application, the names of the
parties, the particulars of the claim, the points for determination, the summary of
evidence adduced on either side, if any, and the findings reached by the Gram
Nyayalaya.
(12) A copy of the order shall be delivered to both the parties within three days on
payment of such fees as may be prescribed by the State Government.
Transfer of civil disputes.
34. The District Judge having jurisdiction may, on an application made by any
party or when there is considerable pendency with one Gram Nyayalaya or
whenever he considers it necessary in the interests of justice, transfer any case
pending before a Gram Nyayalaya to any other Gram Nyayalaya within his
jurisdiction.
Payment of interest in money decrees.
35. (1) Where in any claim for money due the Gram Nyayalaya passes an order
for payment of money, it may also order payment of interest thereon at a rate not
exceeding twelve per cent. per annum from the date of the claim statement
application till the date of payment.
(2) The Gram Nyayalaya may, if it deems fit, direct payment in instalments with
or without interest.
Power of the Gram Nyayalaya to issue commissions.
36. The Gram Nyayalaya shall have all the powers of the civil court to issue
commission and the provisions of sections 75 to 78 of the Code of Civil
Procedure, 1908 shall apply as if for the words ―the Court‖ or ―any Court‖
referred to therein, the words ―the Gram Nyayalaya‖ had been substituted.
CHAPTER VI
PROCEDURE GENERALLY
Proceedings to be in the official language of the State.
37. The proceedings before the Gram Nyayalaya and its judgment shall, as far as
practicable, be in one of the official languages of the State other than the English
language.
Evidence to be on oath.
38. The evidence given orally before a Gram Nyayalaya shall be on oath or on
solemn affirmation.
Gram Nyayalayas to have the power of Judicial Magistrate of the first class
for summoning any person.
39. (1) The Gram Nyayalaya shall have the powers of a Judicial Magistrate of the
first class in respect of all matters relating to summons, securing the presence of
witnesses, attendance of persons confined or detained in prisons, production of
any material evidence including any records, title deeds, agreements, contracts,
and any other thing, object or such relevant material as it may deem fit.
(2) Where any person has been given notice or summon to appear before the
Gram Nyayalaya, the Gram Nyayalaya shall record his statement and thereafter
the Gram Nyayalaya may dispense with his attendance at the hearing of the case.
CHAPTER VII
APPEALS
Appeal in criminal cases.
40. (1) An appeal against any order or sentence passed by a Gram Nyayalaya in a
criminal matter shall lie to the Court of Sessions exercising jurisdiction over the
area within which the Gram Nyayalaya is situated, within thirty days of the
passing of such order or sentence.
(2) An appeal preferred under sub-section (1) shall be heard and disposed of by an
Assistant Sessions Judge subordinate to the Sessions Judge within six months
from the date of filing of the appeal.
(3) The Assistant Sessions Judge may, pending disposal of the appeal, direct the
suspension of the sentence or order appealed against.
(4) The decision of the Assistant Sessions Judge under sub-section (2) shall be
final and no appeal or revision shall lie from the decision of the Assistant Sessions
Judge.
Appeal in civil cases.
41. (1) An appeal against any final order or judgment passed by a Gram
Nyayalaya in a civil matter shall lie to the District Court exercising jurisdiction
over the area within which the Gram Nyayalaya is situated within thirty days of
the passing of such order or judgment.
(2) An appeal preferred under sub-section (1) shall be heard and disposed of by
the Senior Civil Judge subordinate to the District Judge, within six months from
the date of filing of the appeal.
(3) The District Court may, pending disposal of the appeal, direct the suspension
of the order or judgment appealed against.
(4) The decision of the Senior Civil Judge under sub-section (2) shall be final and
no appeal or revision shall lie from the decision of the Senior Civil Judge.
CHAPTER VIII
MISCELLANEOUS
Cases pending in or disposed of by other courts.
42. (1) The Gram Nyayalaya shall not try any civil matter which is the subject
matter of any proceeding pending or disposed of by a competent court unless it is
a pending case transferred to it by the District court under section 21.
(2) Where a case is pending in any court against an accused person in respect of
any offence or where an accused person has been tried for any offence, the Gram
Nyayalaya shall not take cognizance of any such offence or on the same facts, or
any other offence of which the accused might have been charged or convicted.
Assistance of police to Gram Nyayalayas.
43. (1) Every police officer functioning within the local limits of jurisdiction of a
Gram Nyayalaya shall be bound to assist the Gram Nyayalaya in the exercise of
its lawful authority.
(2) Whenever the Gram Nyayalaya, in the discharge of its functions, requests
revenue or police officer or a Government servant to provide assistance to the
Gram Nyayalaya, he shall be bound to provide such assistance.
Nyayadhikaris and employees, etc., to be public servants.
44. The Nyayadhikaris and the officers and other employees of the Gram
Nyayalayas shall be deemed, when acting or purporting to act in pursuance of any
of the provisions of
this Act, to be public servants within the meaning of section 21 of the Indian
Penal Code.
Inspection of Gram Nyayalayas.
45. The District Judge shall authorise any Senior Civil Judge or Assistant
Sessions Judge to inspect the Gram Nyayalayas within his jurisdiction once in
every six months or such other period as the High Court may specify and issue
such instructions, as he considers necessary and submit a report to the High Court.
Power to remove difficulties.
46. (1) If any difficulty arises in giving effect to the provisions of this Act, the
Central Government may, by order published in the Official Gazette, make such
provisions not inconsistent with the provisions of this Act, as may appear to it to
be necessary or expedient for removing the difficulty:
Provided that no order shall be made under this section after the expiry of a period
of three years from the date of commencement of this Act.
(2) Every order made under this section shall be laid, as soon as may be after it is
made, before each House of Parliament.
Power of High Court to make rules.
47. (1) The High Court may, by notification, make rules for carrying out the
provisions of this Act.
(2) In particular and without generality of the foregoing power, such rules may
provide for all or any of the following matters, namely:—
(a) the receipt and custody of all documents and records by or on behalf of the
Gram Nyayalaya and the grant of judgment, orders and other records;
(b) the place and the manner in which the proceedings of the Gram Nyayalaya
shall be conducted;
(c) the manner in which any process is issued by the Gram Nyayalaya;
(d) the particulars of the registers and records to be maintained by the Gram
Nyayalaya;
(e) the conduct of training programme for the Nyayadhikaris and Conciliators of
the Gram Nyayalayas;
(f) the supervision and inspection of the Gram Nyayalayas in respect of specified
matters;
(g) rules regulating the procedure for assisting, persuading or conciliation of
parties in arriving at a settlement in a suit or proceeding under sub-section (1) of
section 30;
(h) the detailed procedure for conduct of civil suits under sub-sections (1) and (3)
of section 30;
(i) the conditions which a person shall fulfil to be eligible to be included in the
panel of Conciliators under sub-section (1) of section 31;
(j) the form and the manner of service of notice under sub-section (1) of section
33;
(k) any other matter not being a matter specified in section 48 in respect of which
rules are required to be made by the High Court for carrying out the provisions of
this Act.
Power of State Government to make rules.
48. (1) The State Government may, by notification, make rules for carrying out
the provisions of this Act.
(2) In particular, and without prejudice to the generality of the foregoing power,
such rules may provide for all or any of the following matters, namely:—
(a) the rules relating to appointment of the Nyayadhikari under sub-section (2) of
section 5;
(b) the salary and allowances payable to and the other terms and conditions of
service of Nyayadhikaris under section 9;
(c) the form and dimensions of the seal of the Gram Nyayalaya under section 12;
(d) the salaries and allowances payable to and the other terms and conditions of
service of the officers and other employees of the Gram Nyayalayas under sub-
section (2) of section 22.
(e) the sitting fee and other allowances payable to and the other terms and
conditions of engagement of Conciliators under sub-section (2) of section 31;
(f) the fee payable in respect of copies of orders of the Gram Nyayalaya under
sub-section (12) of section 33;
(g) any other matter which may be prescribed or in respect of which rules are
required to be made by the State Government.
(3) Every rule made by the State Government under this Act shall be laid as soon
as may be after it is made, before the State Legislature.
MGIPMRND—1514LAW(S-5)—16-04-2007.
***
THE FIRST SCHEDULE
[See sections 14 and 16]
PART I
OFFENCES UNDER THE INDIAN PENAL CODE (45 OF 1860)
(i) Sections 109 to 113 in so far as they relate to the offences mentioned at
subitem (ii).
(ii) Sections 120B (relating to any other criminal conspiracy), 137, 138, 140, 143,
149, 150, 151, 153, 154, 155, 156, 157, 158 (being hired to take part in an
unlawful assembly or riot except in case of going with arm), 160, 163, 166, 168,
171, 171E, 171F, 171G, 171H, 171-I, 172, 173, 174, 175, 176, 177 (relating to
knowingly furnishing false information to a public servant), 178, 179, 180, 182,
183, 184, 185, 186, 187, 188, 190, 202, 225B, 228, 264, 265, 266, 267, 269, 271,
272, 273, 274, 275, 276, 277, 278, 279, 280, 282, 283, 284, 285, 286, 287, 288,
289, 290, 291, 294, 294A, 296, 297, 298, 309, 323, 334, 336, 337, 341, 342, 352,
357, 358, 374, 417, 426, 434, 447, 448, 482, 486, 489, 489E, 491, 508, 509 and
510.
(iii) Sections 125, 324, 332, 353, 379, 427, 428, 429, 430, 431, 432 and 504.
PART II
OFFENCES AND RELIEF UNDER THE OTHER CENTRAL ACTS
(i) The Protection of Civil Rights Act, 1955 (22 of 1955).
(ii) The Bonded Labour System (Abolition) Act, 1976 (19 of 1976).
(iii) The Protection of Women from Domestic Violence Act, 2005 (43 of 2005).
(iv) The Minimum Wages Act, 1948 (9 of 1948).
(v) The Payment of Wages Act, 1936 (4 of 1936).
(vi) Order for maintenance of Wives, Children and Parents under Chapter IX of
the Code of Criminal Procedure, 1973 (2 of 1974).
(vii) The Equal Remuneration Act, 1976 (25 of 1976).
PART III
OFFENCES UNDER THE STATE ACTS
(To be notified by the concerned State Government)
THE SECOND SCHEDULE
[See sections 15 (2) and 16]
PART I
SUITS OF A CIVIL NATURE
WITHIN THE JURISDICTION OF GRAM NYAYALAYAS
(i) Civil Disputes:
(a) Right to purchase of property;
(b) Use of common pasture;
(c) Regulation and timing of taking water from irrigation channel.
(ii) Property Disputes:
(a) Village and farm houses (Possession);
(b) Water channels;
(c) Right to draw water from a well or tube well.
(iii) Other Disputes:
(a) Claims under the Minimum Wages Act, 1948 (9 of 1948);
(b) Claims under the Payment of Wages Act, 1936 (4 of 1936);
(c) Money suits either arising from trade transaction or money lending;
(d) Disputes arising out of the partnership in cultivation of land;
(e) Disputes as to the use of forest produce by inhabitants of Gram
Panchayats.
PART II
CLAIMS AND DISPUTES UNDER THE CENTRAL ACTS NOTIFIED
UNDER SUBSECTION (1) OF SECTION 14 BY THE CENTRAL
GOVERNMENT
PART III
CLAIMS AND DISPUTES UNDER THE STATE ACTS
NOTIFIED UNDER SUB-SECTION (2) OF SECTION 14 BY THE STATE
GOVERNMENT
(To be notified by the concerned State Government)
***
THE PREVENTION OF UNSOLICITED TELEPHONIC CALLS AND
PROTECTION OF PRIVACY BILL, 2006
A
BILL
to prohibit unsolicited telephone calls by business promoters or individuals to
persons not desirous of receiving such calls and for the protection of individual
privacy of citizens and for matters connected therewith or incidental thereto.
BE it enacted by Parliament in the Fifty-seventh Year of the Republic of
India as follows:—
Short title, extent and commencement.
1. (1) This Act may be called the Prevention of Unsolicited Telephonic Calls and
Protection of Privacy Act, 2006.
(2) It extends to the whole of India.
(3) It shall come into force at once.
Definitions.
2. In this Act, unless the context otherwise requires:—
(a) ―prescribed‖ means prescribed by rules made under this Act;
(b) words and expressions used but not defined in this Act but defined in the
Indian Penal Code, 1860, the Indian Telegraph Act, 1885 and the
Information Technology Act, 2000 shall have the same meaning as is
respectively assigned to them in those Acts.
Prohibition of making unsolicited telephone calls.
3. (1) The making of unsolicited telephone calls for promoting business interests
or for other purposes or for harassment is hereby prohibited.
(2) Whoever contravenes the provisions of sub-section (1) shall be guilty of an
offence under this Act.
Mobile operators not to pass on information of subscribers.
4. Notwithstanding anything contained in any other law for the time being in
force, the licenced Mobile operators shall not pass on the information of their
subscribers to any telemarketing service provider, Banks, Insurance
Companies or such other service provider so as to protect the subscribers from
unsolicited telephone calls.
Right to privacy.
5. (1) Every person shall have the right of privacy and to lead and enjoy his
personal life without unwarranted infringement thereof and no person shall be
deprived of this right except according to procedure established by law for the
time being in force.
(2) whoever contravenes the provisions of sub-section (1) shall be guilty of an
offence under this Act.
Restriction on use of cellphone camera.
6. No person shall use a cellular phone having built in camera if it does not
produce a sound of minimum sixty-five decibels and flashes a light when used
to take a picture of any object or with such other conditions as may be
prescribed.
Restrictions of photography violating privacy.
7. Subject to public order, morality and health no person with a view to
blackmail the person or for making commercial gains therefrom, shall
photograph:-
(a) any part or whole of a human body whether nude or semi-nude or
otherwise without the consent of the person concerned; and
(b) any part or whole of a human body at a public place without the consent of
the person concerned.
Penalty.
8. (1) Whoever contravenes the provisions of,—
(i) Section 3 shall be punished with imprisonment for a term which shall not
be less than two years but may extend to four years and also with fine
which may extend to two lakh rupees;
(ii) Section 5 shall be punished with imprisonment for a term which shall not
be less than five years but may extend to seven years and also with fine
which may extend to five lakh rupees;
(iii)Section 6 shall be punishable with imprisonment for six months or with
fine which may extend to two lakh rupees or with both.
(2) Any mobile company which contravenes the provisions of section 4 shall
be punished with fine which may extend to ten lakh rupees and suspension of
its licence for a period of one year.
Offences to be cognizable.
9. Notwithstanding anything contained in the Code of Criminal Procedure, 1973
every offence punishable under this Act shall be cognizable.
Overriding effect of the Act.
10. The provision of this Act shall have effect notwithstanding anything
inconsistent therewith contained in any other law for the time being in force.
Power to make rules.
11. The Central Government may, by notification in the Official Gazette,
make rules for carrying out the purposes of this Act
Words and Phrases Rashness:
Rashness means doing an act with the consciousness of a risk that evil
consequence is will follow but with the hope that it will not. (Rathnashalvan v.
State of Karnataka; Criminal Appeal No. 45 of 2007, decided on January 11,
2007 by the Hon‘ble Supreme Court = (2007) 3 SCC 474)
Criminal Rashness:
Criminal Rashness means hazarding a dangerous or wanton act with the
knowledge that it is dangerous or wanton and the further knowledge that it may
cause injury but done without any intention to cause injury or knowledge that it
would probably be caused. (Rathnashalvan v. State of Karnataka; Criminal
Appeal No. 45 of 2007, decided on January 11, 2007 by the Hon‘ble Supreme
Court = (2007) 3 SCC 474)
Negligence:
Negligence is breach of duty imposed by law. (Rathnashalvan v. State of
Karnataka; Criminal Appeal No. 45 of 2007, decided on January 11, 2007 by
the Hon‘ble Supreme Court = (2007) 3 SCC 474)
Criminal Negligence:
Criminal Negligence is failure to exercise reasonable and proper care, its extent
depend on the circumstances of each case. (Rathnashalvan v. State of
Karnataka; Criminal Appeal No. 45 of 2007, decided on January 11, 2007 by
the Hon‘ble Supreme Court = (2007) 3 SCC 474)
Gainful employment:
Include self-employment wherefrom income is generated.
Income either from employment in an establishment or from self-employment
merely differentiates the sources from which income is generated, the end use
being the same. (North East Karnataka Road Transport Corporation v. M.
Nagangouda; Criminal Appeal No. 129/2007 decided on January 9, 2007 by
the Hon‘ble Supreme Court = AIR 2007 SC 973)
Immediately:
Term ―immediately‖ has two meanings –
One, indicating the relation of cause and effect and the other the absence of time
between two events. In the former sense, it means proximately, without
intervention of anything, as opposed to ―immediately‖. In the latter sense, it
means instantaneously. The term ―immediately‖ is, thus required to be construed
as meaning with all reasonable speed, considering the circumstances of the case.
In a given situation the term ―immediately‖ may mean ―without reasonable time.‖
Where an act is to be done within reasonable time, it must be done immediately.
(Rosali V. v. Talco Bank & Ors.; Civil Appeal No. 6129 of 2000, decided on
23.1.2007 by the Hon‘ble Supreme Court = AIR 2007 SC 998)
Ratio decidendi:
Ratio decidendi is the reason for the decision and not the final order
containing the decision.
Every judgment of superior courts has three segments namely:
(i) the facts and the point at issue;
(ii) the reasons for the decision; and
(iii) the final order containing the decision.
The reasons for the decision or the ratio decidendi is not the final order containing
the decision. In fact, in a judgment, though the ratio decidendi may point to a
particular result, the decision (final order relating to relief) may be different and
not a natural consequence of the ratio decidendi of the judgment. This may
happen either on account of any subsequent event or the need to mould the relief
to do complete justice in the matter. It is the ratio decidendi of a judgment and not
the final order in the judgment, which forms a precedent. (Sanjay Singh and
Another v. U.P. Public Service Commission, Allahabad and Another; Writ
Petition (C) No. 165 of 2005 with Nos. 172, 409, 466 and 467 of 2005, decided
on January 9, 2007 by the Hon‘ble Supreme Court = (2007) 3 SCC 720)
Scaling Process:
It is the process by which Raw marks in different subjects are adjusted to a
common scale. It is a recognized method of ensuring uniformity inter se among
the candidates who have taken examinations in different subjects, as, for example
the Civil Services Examination. In the Judicial Service Examination, the
candidates were required to take the examination in respect of the all five subjects
and the candidates did not have any option in regard to the subjects. (Sanjay
Singh and Another v. U.P. Public Service Commission, Allahabad and
Another; Writ Petition (C) No. 165 of 2005 with Nos. 172, 409, 466 and 467 of
2005, decided on January 9, 2007 by the Hon‘ble Supreme Court = (2007) 3
SCC 720)
Distinction between “irregular appointment” and “illegal appointment”:
There is a distinction between ―irregular appointment‖ and ―illegal appointment‖.
If an appointment is irregular, the same can be regularised and the court may not
take serious note of irregularity but an ―illegal appointment‖ can not be legalised.
If the provisions of Article 14 & 16 of the Constitution and Statutory Rules are
not complied with in an appointment, such appointment is illegal and is non est in
the eye of the law, which renders the appointment to be nullity. (Ashok Kumar
Sonkar v. Union of India and Others; Civil Appeal No. 4761 of 2006, decided
on February 23, 2007 by the Hon‘ble Supreme Court = (2007) 4 SCC 54)
“May be true” and “must be true”:
Hon‘ble Supreme Court held as under on these words & phrases:
―The court has to be watchful and avoid the danger of allowing the suspicion to
take the place of legal proof, for sometimes unconsciously it may happen to be a
short step between moral certainty and legal proof. There is a long mental
distance between ―may be true‖ and ―must be true‖ and the same divides
conjectures from sure conclusions. ‖ (Ram Singh v. Sonia & Others; Cri.
Appeals No. 895 of 2005 with Nos. 894 of 2005 and 142 of 2006, decided on
February 15, 2007 = (2007) 2 SCC (Cri) 1)
fo’ks"k vuqla/kku ny ¼,l0vkbZ0Vh0½ ds xBu ds lEcU/k esa 'kklukns’k
la[;k &1351@N%&iq0&3&25ih@2007] fnukWd 16 twu] 2007%
izs"kd]
ts0,u0 pSEcj]
izeq[k lfpo] xg̀]
mRrj izns’k 'kkluA
lsok esa]
¼1½ leLr izeq[k lfpo@lfpo]
mRrj izns’k 'kkluA
¼2½ iqfyl egkfuns’kd]
mRrj izns’k 'kkluA
¼3½ vij iqfyl egkfuns’kd]
mRrj izns’k iqfyl eq[;ky;]
bykgkcknA
x`g¼iqfyl½ vuqHkkx&3 y[kuÅ% fnukWd 16
twu] 2007
fo"k;%& fo’ks"k vuqla/kku ny ¼,l0vkbZ0Vh0½ dk xBu ds lEcU/k
esaA
egksn;]
dkuwu dk jkt LFkkfir djus ds fy, ;g vko’;d gS fd u
dsoy NksVs vijk/kh cfYd cM+s] vljnkj ,oa fofHkUu inksa ij vklhu ,sls
O;fDr ,oa yksd lsod tks viuh igqWp ,oa in dk nq:i;ksx djds xaHkhj
vkfFkZd vijk/k djrs gSa] dks Hkh dkuwu ds nk;js esa yk;k tk;sA cnyrh
ifjfLFkfr;ksa esa izns’k esa mRre Js.kh ds ,d vUrfoZ"k;d (Multi-
Disciplinary) vuqla/kku ny dh vko’;drk gS tks izHkko’kkyh
O;fDr;ksa ,oa yksd lsodksa }kjk dkfjr tfVy ,oa xaHkhj ekeyksa dh tkWp
,oa foospuk dj ldsA bl i`"Bhkwfe esa 'kklu }kjk ,d loZlEiUu ,oa
mPp dk;Z{kerk okys fo’ks"k vuqla/kku ny (Special Investigation
Team) laf{kIr uke ,l0vkbZ0Vh0] dh Lfkkiuk dk fu.kZ; fy;k x;k gSA
2& ,l0vkbZ0Vh0 dk dk;Z{ks=%& x`g foHkkx }kjk lanfHkZr ekeyksa dh
tkWp ,oa foospuk ds fy, ,l0vkbZ0Vh0 dk xBu ,d Lora= tkWp ,oa
foospuk ,tsUlh ds :i esa fd;k tk jgk gSA ;gkW tkWp ls vfHkizk;
izkjfEHkd tkWp ls gSA ,l0vkbZ0Vh0 dh tkWpsa lanfHkZr djus dk vf/kdkj
x`g foHkkx dks gksxk vkSj xg̀ foHkkx Lor% vFkok vU; foHkkxksa ds
iz’kklfud foHkkxk/;{kksa }kjk lanfHkZr izdj.kksa esa xq.k&nks"k ds vk/kkj ij
rFkk izdj.k dh xaHkhjrk dks n`f"Vxr j[krs gq, tkWp@foospuk ds izdj.k
,l0vkbZ0Vh0 dks lanfHkZr djsxkA
2-1 ,l0vkbZ0Vh0 dks dsoy ,sls izdj.k lanfHkZr fd;s tk;saxsa ftuesa
jkT; ljdkj ,oa jkT; ljdkj ds v/khu dk;Z dj jgs fofHkUu
foHkkx@laxBu@laLFkkvksa@fuxeksa@vf/kdj.kksa vkfn esa yksd lsodksa }kjk
vFkok yksd lsodksa }kjk vU; O;fDr;ksa ds lkFk lkaB&xkaB dj jkT;
ljdkj@jkT; ljdkj ds v/khu fofHkUu
foHkkx@laxBuksa@laLFkkvksa@fuxeksa@vf/kdj.kksa vkfn dks xaHkhj
jktLo@foRrh; gkfu igqWpk;h x;h gksA blds vfrfjDr yksd&O;oLFkk
dks xaHkhj {kfr igqWpkus okys izdj.kksa esa x`g foHkkx }kjk viokn Lo:i
ekeys ,l0vkbZ0Vh0 dks lanfHkZr fd;s tk ldsaxsaA
2-2 ,l0vkbZ0Vh0 dk dk;Z u dsoy foospuk djuk cfYd
foospuksijkUr U;k;ky; esa vfHk;kstu dk;Z viuh ns[k&js[k esa djuk
rFkk tgkW foHkkxh; dk;Zokgh dh vuqla’kk dh tkrh gS ogkW ij foHkkxh;
dk;Zokgh esa lacaf/kr foHkkx ls vuqJo.k djuk Hkh gksxkA Li"V fd;k
tkrk gS fd ,l0vkbZ0Vh0 }kjk izkjfEHkd tkWp ds i'pkr~ yksd lsodksa ds
fo:) foHkkxh; dk;Zokgh dh [email protected] fd;k tk ldsxkA
,l0vkbZ0Vh0 }kjk foospuksijkUr Hkkjrh; n.M izfØ;k lafgrk dh
/kkjk&173 ds rgr U;k;ky; esa fjiksVZ is’k djus ds vfrfjDr yksd
lsodksa ds fo:) foHkkxh; dk;Zokgh dh [email protected] Hkh fd;k tk
ldsxkA
2-3 pwWfd ,l0vkbZ0Vh0 }kjk ,sls ekeyksa esa foospuk dh tk;sxh ftlesa
fyIr O;fDr vljnkj gksaxs vkSj dkuwu dh isaphnxh dk ykHk mBkdj
vius vkidks U;k;ky; ds ek/;e ls cpkuk pkgsaxsa] vr% mi;qDr izdj.kksa
esa ,l0vkbZ0Vh0 }kjk fo’ks"k yksd vfHk;kstd (Special Public
Prosecutor) dh fu;qfDr ds fy, x`g foHkkx ls vuqjks/k djus dh
Lora=rk gksxhA
2-4 x`g foHkkx ds izeq[k lfpo dh v/;{krk esa ,d lfefr xfBr dh
tk;sxh ftlesa iqfyl egkfuns’kd] m0iz0 rFkk lacaf/kr foHkkx] tgkW dh
izkjfEHkd tkWp@foospuk dh x;h gS] ds foHkkxk/;{k ¼;fn foHkkxk/;{k ds
fyIr gksus dh vk’kadk gks rks iz’kklfud foHkkxk/;{k½ gksaxsA ,l0vkbZ0Vh0
}kjk izkjfEHkd tkWp vFkok foospuk ds mijkUr vk[;k@fu"d"kZ x̀g
foHkkx dks izLrqr fd;k tk;sxkA ;g lfefr ,l0vkbZ0Vh0 dh vk[;k ij
fopkjksijkUr izkFkfedh ntZ djus] foospuksijkUr U;k;ky; esa vkjksi&i=
nkf[ky djus] nks"kh ljdkjh lsod ds fo:) foHkkxh; dk;Zokgh djus &
y?kq@nh?kZ n.M dh laLrqfr vkfn dj ldsxhA fdlh izkbosV O;fDr ds
fo:) dk;Zokgh lafLFkr gksus dh n’kk esa lfefr }kjk fu.kZ; fy;k
tk;sxkA
3- ,l0vkbZ0Vh0 dk iz’kklfud <kWpk%& ,l0vkbZ0Vh0 dk eq[;ky;
y[kuÅ esa gksxk ,oa vij iqfyl egkfuns’kd Lrj ds vf/kdkjh mlds
izeq[k gksaxsaA muds v/khu ,d vkbZ0th0@Mh0vkbZ0th0 ,oa dk;Z dh
vf/kdrk dks ns[krs gq, 02 ;k mlls vf/kd iqfyl v/kh{kd fu;qDr fd;s
tk;saxsA iqfyl egkfuns’kd] m0iz0 }kjk miyC/k dk;Zcy esa ls
,l0vkbZ0Vh0 esa 04 iqfyl mik/kh{kd ,oa 10 fujh{kd rFkk 06 mi
fujh{kd ,oa 30 dkaLVsfcy fu;qDr fd;s tk;saxsaA blds vfrfjDr 06
vk’kqfyfid] 02 mi fujh{kd¼,e½ rFkk 04 lgk;d mi fujh{kd¼,e½ dh
fu;qfDr dh tk;sxhA prqFkZ Js.kh ds 10 in Hkh miyC/k djk;s tk;saxsA
dkykUrj esa mijksDr lHkh inksa ds l`tu dh Lohdf̀r ysdj
fu;qfDr@inksUufr dh O;oLFkk iqfyl eq[;ky; }kjk dh tk;sxhA
,l0vkbZ0Vh0 dks fof/kd jk; nsus ,oa vfHk;kstu gsrq ,d ofj"B
vfHk;kstu vf/kdkjh] ,d vfHk;kstu vf/kdkjh rFkk ,d lgk;d
vfHk;kstu vf/kdkjh dh fu;qfDr x`g foHkkx }kjk dh tk;sxhA
3-1 ,l0vkbZ0Vh0 esa pwWfd fofHkUu foHkkxksa ls lacaf/kr ekeyksa dh
tkWp@foospuk dh tk;sxh] vr% ,l0vkbZ0Vh0 izeq[k dks x`g foHkkx ds
ek/;e ls ,sls rduhdh@fo"k;d~ tkudkjh j[kus okys
vf/kdkjh@deZpkjh dks vius lkFk vko’;drkuqlkj okWfNr vof/k ds
fy, lEc) djus dk vf/kdkj gksxk ,oa ,l0vkbZ0Vh0 }kjk fd;s x;s
bl izdkj ds fuosnu dks lacaf/kr foHkkx ds foHkkxk/;{k@lfpo }kjk
izR;sd n’kk esa Lohdkj djuk gksxkA bl izdkj miyC/k djk;s tkus okys
fo’ks"kK vf/kdkfj;ksa dk ,d iSuy] ftlesa 05 vf/kdkjh gksaxs] foHkkx }kjk
,l0vkbZ0Vh0 izeq[k dks vfoyEc Hkstk tk;sxkA ml iSuy esa ls
vf/kdkfj;ksa@deZpkfj;ksa dks pquus ds fy, ,l0vkbZ0Vh0 izeq[k Lora=
gksaxsA
3-2 lacaf/kr foHkkx ftlds izdj.k dh tkWp vFkok foospuk
,l0vkbZ0Vh0 }kjk dh tk jgh gS og ,l0vkbZ0Vh0 dks vko’;d
vk/kkjHkwr lg;ksx (Logical Support) miyC/k djk;sxkA
3-3 foospuk@tkWp esa vkus okyh tfVyrk dks ns[krs gq,
vko’;drkuqlkj ,l0vkbZ0Vh0 }kjk futh {ks= ls mi;qDr foRrh; iSdst
ds vk/kkj ij pkVZMZ ,dkm.VsUV] dEiuh lsdzsVjh] QkbusfU’k;y ,ukfyLV]
oSY;wolZ (Valuers) ,oa dEI;wVj fo’ks"kKksa ,oa vU; fo’ks"kKksa dh lsok;sa yh
tk ldsaxhA blds fy, mUgsa x`g foHkkx ls vuqeksnu izkIr djuk gksxkA
3-4 ,l0vkbZ0Vh0 izeq[k dks dk;kZy; ds vkUrfjd fu;e ,oa
dk;Ziz.kkyh r; djus ds fy, vf/kdkj izkIr gksxkA ijUrq x̀g foHkkx
}kjk tkWp@foospuk ds fy, fu/kkZfjr le;&lhek dk vknj djuk gksxkA
4- ,l0vkbZ0Vh0 dk fo’ks"kkf/kdkj%& ,l0vkbZ0Vh0 }kjk vius dk;Z ds
nkSjku vko’;drkuqlkj okWfNr vfHkys[k lacaf/kr
foHkkx@laxBu@laLFkk@fuxe@vf/kdj.k vkfn }kjk ;qfDr;qDr
le;&lhek esa miyC/k djk;s tk;saxsA lacaf/kr foHkkxk/;{k ;g lqfuf’pr
djsaxsaA
5- lkt&lTtk%& ,l0vkbZ0Vh0 ds dk;kZy; gsrq mi;qDr LFkku]
okgu ,oa vU; vko’;d midj.kksa dh miyC/krk Hkh lqfuf’pr dh
tk;sxhA bl iz;kstu ij gksus okyk O;; iqfyl vk/kqfudhdj.k ;kstuk ls
ogu fd;k tk;sxkA bl laca/k esa vko’;d vkSipkfjdrkvksa dh iwfrZ djds
/kujkf’k vkcafVr djus dh dk;Zokgh vyx ls dh tk;sxhA
6- ctV%& ,l0vkbZ0Vh0 ds vukorZd O;; o vkorZd O;; dks xg̀
¼iqfyl½ foHkkx dh vuqnku la[;k&26 ds vUrxZr O;ofLFkr /kujkf’k ls
ogu fd;k tk;sxkA iqfyl egkfuns’kd vko’;drkuqlkj bl ny dks
/kukjkf’k voeqDr djsaxsaA
7- fo’ks"k U;k;ky;ksa dk xBu%& ,l0vkbZ0Vh0 }kjk foosfpr fd;s x;s
vkijkf/kd izdj.kksa ds Rofjr fuLrkj.k gsrq Hkz"Vkpkj fuokj.k vf/kfu;e
rFkk Hkkjrh; n.M lafgrk ds v/khu fd;s x;s vijk/kksa dh lquokbZ gsrq
vyx&vyx fo’ks"k U;k;ky;ksa ds l`tu ds lEcU/k esa vyx ls
fof/klEer dk;Zokgh dh tk;sxhA
8- fofo/k%& ,l0vkbZ0Vh0 dk;kZy; dks iqfyl Fkkus ds :i esa
vf/klwfpr djus ds fy, x`g foHkkx ds Lrj ls dk;Zokgh dh tk;sxhA
bl iqfyl Fkkus dk dk;Z{ks= lEiw.kZ mRrj izns’k gksxkA
8-1 ,l0vkbZ0Vh0 ds lHkh fujh{kd ,oa mlls Åij ds vf/kdkfj;ksa dks
Fkkuk izHkkjh ds :i esa vf/klwfpr fd;k tk;sxk ftlls fd os Lora=
jgdj vius v/khu fdlh iqfyl vf/kdkjh@deZpkjh dks fdlh izdj.k
dh foospuk ds laca/k esa tkudkjh vFkok lk{; ,df=r djus gsrq
funsZf’kr dj ldsax saA ,l0vkbZ0Vh0 ds fujh{kdksa dks Hkz"Vkpkj fuokj.k
vf/kfu;e] 1973 ds rgr foospuk dk vf/kdkj nsus gsrq vf/klwpuk x̀g
foHkkx }kjk tkjh dh tk;sxhA
8-2 ,l0vkbZ0Vh0 izeq[k dks foHkkxk/;{k dk Lrj izkIr gksxk ftlds
fy, 'kklu }kjk vf/klwpuk tkjh dh tk;sxhA
8-3 ,l0vkbZ0Vh0 esa dk;Z dj jgs foopdksa dks ewy osru ds 25
izfr’kr rFkk ,l0ih0 ,oa mlds Åij ds vf/kdkfj;ksa dks 15 izfr’kr
fo’ks"k HkRrk ns; gksxkA
Hkonh;]
g-
ts0,u0pSEcj
izeq[k lfpo
la[;k &1351@N%&iq0&3&25ih@2007] rn~fnukWd %&
izfrfyfi fuEufyf[kr dks lwpukFkZ ,oa vko’;d dk;Zokgh gsrq
izsf"kr%&
¼1½ iqfyl egkfuns’kd] vfHk;kstu] y[kuÅA
¼2½ leLr e.Myk;qDr@ftykf/kdkjh@iqfyl egkfujh{kd
tksu@iqfyl miegkfujh{kd] ifj{ks=] mRrj izns’kA
¼3½ leLr ofj"B iqfyl v/kh{kd@iqfyl v/kh{kd] mRrj izns’kA
¼4½ leLr foHkkxk/;{k] mRrj izns’kA
vkKk ls]
g0
¼Mk0 gfjvkse½
fo’ks"k lfpoA
&&&&&&&&&&&&