Sep 17, 2009
Manishi jain vs state decided by Gujrat HC on 04/09/2009
Law is settled that when the Government is exercising the powers under Section 95 of the Cr.P.C., the government has to form an opinion and those opinion will give rise to the grounds and grounds have to be stated in the notification issued in exercise of the powers under Section 95 of the Cr.P.C..No opinion has been expressed by the State in the notification. Lack of opinion means lack of thinking. Lack of thinking means lack of understanding. Gujrat High Court set aside the ban on book of Jaswant Singh on Jinnah.
Virendra Bandhu v. State of Rajasthan, AIR 1980 Rajasthan 241
the Full Bench of Rajasthan High Court has examined the scope of Section 95 of Cr.P.C. and other related provisions and the Court held that total absence of grounds for the opinion of the Government in the order of forfeiture would render such an order invalid and void.
Tata Tea Limited Vs SEBI
it would be legitimate for the acquirer to enter into a non-compete agreement with the promoter sellers if he feels threatened by a lurking fear of competition from them.
Sep 12, 2009
State of U.P. through C.B.I. Vs. Amar Mani Tripathi 2005 SCC(Criminal) 1960
It is well settled that the matters to be considered in an application for bail are (i) whether there is any prima facie or reasonableground to believe that the accused had committed the offence; (ii) nature and gravity of the charge; (iii) severity of the punishment in the event of conviction; (iv) danger of accused absconding or fleeing if released on bail; (v)character,behaviour,means,positionandstandingoftheaccused;(vi) likelihood of the offence being repeated; (vii) reasonable apprehension of the witnesses being tampered with;and (viii) danger, of course, of justice being thwarted by grant of bail.
Jamuna Nishad Vs. State of U.P. decided by Allahabad High Court on 09.09.2009
it was the applicant who led the unruly armed crowd. Being a member of cabinet, it was expected of him that he will set an example to the citizens of the State to follow the law. It is really worrying and appalling that the caravans which followed the applicant, Cabinet Minister, carried those people who were armed with lethal weapon and wielded them against law enforcing agencies. The incident started by destroying the public property inside the police station and even the constables present there were roughed up.
Carrying a cavalcade of people armed with illegal lethal fire arms by the public representatives have become a matter of pride for them with show of force to deter ordinary people who are the real constitution framers as they have adopted and given to themselves The Constitution( See Preamble). It is the need of the hour that all these types of show of muscle power and illegal weaponry in public places must be curbed.
Looking to the record of acquittal which has been appended along with this bail application and the fact that the applicant was a minister in a Ruling Government, which is still in power in the State, the fair trial and exertion of pressure on the witnesses is not a remote possibility.
Carrying a cavalcade of people armed with illegal lethal fire arms by the public representatives have become a matter of pride for them with show of force to deter ordinary people who are the real constitution framers as they have adopted and given to themselves The Constitution( See Preamble). It is the need of the hour that all these types of show of muscle power and illegal weaponry in public places must be curbed.
Looking to the record of acquittal which has been appended along with this bail application and the fact that the applicant was a minister in a Ruling Government, which is still in power in the State, the fair trial and exertion of pressure on the witnesses is not a remote possibility.
Vakeel Ahmad Vs State Of U.P. & Another decided by Allahabad High Court on 03.9.2009.
Whether the Magistrate is bound to grant remand for judicial custody in those sections only for which prayer has been made by the investigating officer in remand application.
During the course of investigation, remand under section 354, 506 IPC was sought by the investigating officer.When the applicant-accused was brought to court for seeking remand, an application was moved on behalf of the prosecution to grant remand under section 376 IPC also. The learned magistrate after hearing parties counsel, allowed the application of prosecution and granted remand sending the applicant in judicial custody under section 376, 323, 506 IPC.
If in any case, the investigating officer deliberately commits mischief and with a view to help the accused, he does not seek remand in proper sections, then the magistrate can not sit as silent spectator. While granting remand under section 167 Cr.P.C., the magistrate is required to go through the case diary.
Investigating officer is not the sole authority to decide as to what offence is made out on the basis of material in case diary.
During the course of investigation, remand under section 354, 506 IPC was sought by the investigating officer.When the applicant-accused was brought to court for seeking remand, an application was moved on behalf of the prosecution to grant remand under section 376 IPC also. The learned magistrate after hearing parties counsel, allowed the application of prosecution and granted remand sending the applicant in judicial custody under section 376, 323, 506 IPC.
If in any case, the investigating officer deliberately commits mischief and with a view to help the accused, he does not seek remand in proper sections, then the magistrate can not sit as silent spectator. While granting remand under section 167 Cr.P.C., the magistrate is required to go through the case diary.
Investigating officer is not the sole authority to decide as to what offence is made out on the basis of material in case diary.
SURYA KANT AND OTHERS Vs STATE OF U.P. decided by Allahabad High Court on 31.8.2009
During course of that heated verbal onslaught, it is alleged that all of a sudden two of the appellants picked up knives but appellant Mani Kant picked up only a blunt object. Their was no challenge call nor their was any instigation to murder the deceased. No sooner than picking up the weapons that all the appellants launched an assault on the prosecution side. While two of theappellants assaulted the deceased but Mani Kant did not even endeavour to beat him. There is no evidence on record to even remotely suggest that Mani Kant had the same intention as that of his other two brothers.For the applicability of section 34 I.P.C. sharing of common intention is sine qua non. Without such sharing of intention section 34 I.P.C. has got no applicability. Thus Mani Kant Acquitted.
Jagannath versus State ofM.P. 2007SC(Supp)905
A common intention may be developed on the spot, but the same must not only be developed but also must be shared with theotheraccused.
Sep 10, 2009
Dolat Ram And Ors. v. State of Haryana (1995) 1 SCC 349
However, bail once granted should not be cancelled in a mechanical manner without considering whether any supervening circumstances have rendered it no longer conducive to a fair trial to allow the accused to retain his freedom by enjoying the concession of bail during the trial.
Bihar School Examination Board Vs. Suresh Prasad Sinha Decided On by supreme court of india 04.09.2009
The examination fee paid by the student is not the consideration for availment of any service, but the charge paid for the privilege of participation in the examination.
Board is not a `service provider' and a student who takes an examination is not a `consumer' and consequently, complaint under the Act will not be maintainable against the Board.
The Board is not carrying on any commercial, professional or service-oriented activity. No `benefit' is conferred nor any `facility' provided by the Board for any consideration. Therefore, the said decision is inapplicable.
Lord Denning in the matter of applying precedents have become locus classicus: Each case depends on its own facts and a close similarity between one case and another is not enough because even a single significant detail may alter the entire aspect, in deciding such cases. One should avoid the temptation to decide cases (as said by Cardozo) by matching the colour of one case against the colour of another.
Precedent should be followed only so far as it marks the path of justice, but you must cut the dead wood and trim off the side branches else you will find yourself lost in thickets and branches. My plea is to keep the path to justice clear of obstructions which could impede it.
Board is not a `service provider' and a student who takes an examination is not a `consumer' and consequently, complaint under the Act will not be maintainable against the Board.
The Board is not carrying on any commercial, professional or service-oriented activity. No `benefit' is conferred nor any `facility' provided by the Board for any consideration. Therefore, the said decision is inapplicable.
Lord Denning in the matter of applying precedents have become locus classicus: Each case depends on its own facts and a close similarity between one case and another is not enough because even a single significant detail may alter the entire aspect, in deciding such cases. One should avoid the temptation to decide cases (as said by Cardozo) by matching the colour of one case against the colour of another.
Precedent should be followed only so far as it marks the path of justice, but you must cut the dead wood and trim off the side branches else you will find yourself lost in thickets and branches. My plea is to keep the path to justice clear of obstructions which could impede it.
Lucknow Development Authority v. M. K. Gupta 1994 (1) SCC 243
In absence of any indication, expressed or implied there is no reason to hold that authorities created by the Statute are beyond purview of the Act.... The legislative intention is thus clear to protect a consumer against services rendered even by statutory bodies. The test, therefore, is not if a person against whom complaint is made is a statutory body but whether the nature of the duty and function performed by it is service or even facility".
C.I.T v. Sun Engg. Works (P) Ltd. 1992(4) SCC 363
It is neither desirable nor permissible to pick out a word or a sentence from the judgment of this Court, divorced from the context of the question under consideration and treat it to be complete `law' declared by this Court. The judgment must be read as a whole and the observations from the judgment have to be considered in the light of the questions which were before this Court. A decision of this Court takes its colour from the questions involved in the case in which it is rendered and while applying the decision to a later case, the courts must carefully try to ascertain the true principle laid down by the decision of this Court and not to pick out words or sentences from the judgment, divorced from the context of the questions under consideration by this Court, to support their reasonings.
Government of Karnataka and Ors. v. Gowramma and Ors. AIR 2008 SC 863
Reliance on the decision without looking into the factual background of the case before it is clearly impermissible. A decision is a precedent on its own facts. Each case presents its own features. It is not everything said by a Judge while giving a judgment that constitutes a precedent. The only thing in a Judge's decision binding a party is the principle upon which thecase is decided and for this reason it is important to analyse a decision and isolate from it the ratio decidendi. According to the well-settled theory of precedents, every decision contains three basic postulates (i) findings of material facts, direct and inferential. An inferential finding of facts is the inference which the Judge draws from the direct, or perceptible facts; (ii) statements of the principles of law applicable to the legal problems disclosed by the facts; and (iii) judgment based on the combined effect of the above. A decision is an authority for what it actually decides.
Bhavnagar University v. Palitana Sugar Mills Pvt. Ltd. (2003) 2 SCC 111
It is well settled that a little difference in facts or additional facts may make a lot of difference in the precedential value of a decision.
Sep 9, 2009
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THE CPIO, SUPREME COURT OF INDIA, TILAK MARG, NEW DELHI vs SUBHASH CHANDRA AGARWAL W.P. (C) 288/2009, Pronounced on: 02.09.2009
A judge’s independence, paradoxically imposes duties on him (or her): duty to decide according to law and binding precedent, rather than individual choice of the judge’s notion of justice of the case; the duty to not only do justice, but follow a fair procedure which accords with notions of justice: “appear to be doing justice”, which in turn would mean that the judge is not completely “free” to follow a personal agenda, but has to decide the merits of the case, according to facts presented by parties.
The second duty – another dimension of independence- is that judges do not decide cases by dictates of popularly held notions of right and wrong. Indeed a crucial part of the judge’s mandate is to uphold those fundamental values upon which society organizes itself; here, if the judge were to follow transient “popular” notions of justice, the guarantees of individual freedoms, entrenched in the Constitution, would be rendered meaningless.
The precondition of ‘public confidence’ runs the risk of being misunderstood. The need to ensure public confidence does not mean the need to ensure popularity.
All power – judicial power being no exception – is held accountable in a modern Constitution. Holders of power too are expected to live by the standards they set, interpret, or enforce, at least to the extent their office demands.
court is of the opinion that the volitional nature of the resolutions, should be seen as the higher judiciary’s commitment to essential ethical behaviour, and its resolve to abide by it.
Members of the higher judiciary in this country occupy high Constitutional office; the Constitution designedly devised only one procedure for removal, and conferred immense confidence on these functionaries. The assumption was, and continues to be that holders of these offices are women and men of impeccable credentials, and maintain the highest standards of probity in their professional and personal lives. They are deemed to be aware of the demands of their office, and the role of judges. Therefore, if they consciously decide to create a self-regulatory norms, their adherence is guaranteed.
it is immediately apparent that the CJI cannot be a fiduciary vis-Ã -vis Judges of the Supreme Court; he cannot be said to have superior knowledge, or be better trained, to aid or control their affairs or conduct. Judges of the Supreme Court hold independent office, and are there is no hierarchy, in their judicial functions, which places them at a different plane than the CJI.
If public servants – here the expression is used expansively to include members of the higher judiciary too – are obliged to furnish asset declarations, the mere fact that they have to furnish such declaration would not mean that it is part of public activity, or “interest”.
no law bars public servants from acquiring properties, or investing their income. The obligation to disclose these investments and assets is to check the propensity to abuse a public office, for private gain. If the information applicant is able to demonstrate what Section 8(1) (j) enjoins the information seeker to, i.e. that “the larger public interest justifies the disclosure of such information” the authority deciding the application can proceed to the next step, after recording its prima facie satisfaction, to issue notice to the “third party” i.e. the public servant.
The obligation to give access or deny access to information, is today controlled by provisions of the Act, as it presently exists. It nowhere obliges disclosure of assets of spouses, dependants and children – of judges. Members of the higher judiciary are, in this respect entitled to the same protection – and exemptions- as in the case of other public servants, including judicial officers up to the District Judge level, members of All India services, and other services under the Union.
For the purposes of this case, however, the particulars sought do not justify or warrant that protection; all that the applicant sought is whether the 1997 resolution was complied with. That kind of innocuous information does not warrant the protection granted by Section 8 (1)(j).
An honest, but strict or unpopular judge can be unfairly vilified, without anyone giving his version; similarly, unfounded allegations of improper personal behaviour cannot be defended by the judge in public, even though they can be levelled freely; they may tarnish his reputation or worse, and he would have to smart under them, under the haunting prospect of its being resuscitated every now and then.
The perception that the wheels of justice grind too slowly, in the meanwhile, continues. For the litigant, who pins his hopes on speedy resolution of his disputes, these explanations may wear thin; yet the judge who tries cases is not superhuman; the judge is as human as any other citizen.
The popular public perception is that judges do not work after official hours, and enjoy long vacations, a hangover of the British Raj. On the contrary, a crushing load ensures that judges put in equal number of hours, sometimes more, than what is spent by them, in open court, resulting typically in 10-14 hour working days, at times more. Most Saturdays are working days, if the judicial officer or the judge has to be “on par” with the judgments and orders that are to be prepared and announced. If judges have to understand and deal with all the cases listed before their courts, they would also have to spend some time, beforehand, reading up the previous day.
It would be useful to quote Dr. Barrack, from “The Judge in a Democracy” again, as it summarizes the values which every judge is committed to live by: “ As a judge, I do not have a political platform. I am not a political person. Right and left, religious and secular, rich and poor, man and woman, disabled and nondisabled, all are equal in my eyes. All are human beings, created in the image of the Creator. I will protect the human dignity of each. I do not aspire to power. I do not seek torule. I am aware of the chains that bind me as a judge and as the president of the Supreme Court. I have repeatedly emphasized the rule of law and not of the judge. I am aware of the importance of the other branches of government – legislative and executive – which give expression to democracy. Between those two branches are connecting bridges and checks and balances. I view my office as a mission. Judging is not a job. It is a way of life. Whenever I enter the courtroom, I do so with the deep sense that, as I sit at trial, I stand on trial.”
The second duty – another dimension of independence- is that judges do not decide cases by dictates of popularly held notions of right and wrong. Indeed a crucial part of the judge’s mandate is to uphold those fundamental values upon which society organizes itself; here, if the judge were to follow transient “popular” notions of justice, the guarantees of individual freedoms, entrenched in the Constitution, would be rendered meaningless.
The precondition of ‘public confidence’ runs the risk of being misunderstood. The need to ensure public confidence does not mean the need to ensure popularity.
All power – judicial power being no exception – is held accountable in a modern Constitution. Holders of power too are expected to live by the standards they set, interpret, or enforce, at least to the extent their office demands.
court is of the opinion that the volitional nature of the resolutions, should be seen as the higher judiciary’s commitment to essential ethical behaviour, and its resolve to abide by it.
Members of the higher judiciary in this country occupy high Constitutional office; the Constitution designedly devised only one procedure for removal, and conferred immense confidence on these functionaries. The assumption was, and continues to be that holders of these offices are women and men of impeccable credentials, and maintain the highest standards of probity in their professional and personal lives. They are deemed to be aware of the demands of their office, and the role of judges. Therefore, if they consciously decide to create a self-regulatory norms, their adherence is guaranteed.
it is immediately apparent that the CJI cannot be a fiduciary vis-Ã -vis Judges of the Supreme Court; he cannot be said to have superior knowledge, or be better trained, to aid or control their affairs or conduct. Judges of the Supreme Court hold independent office, and are there is no hierarchy, in their judicial functions, which places them at a different plane than the CJI.
If public servants – here the expression is used expansively to include members of the higher judiciary too – are obliged to furnish asset declarations, the mere fact that they have to furnish such declaration would not mean that it is part of public activity, or “interest”.
no law bars public servants from acquiring properties, or investing their income. The obligation to disclose these investments and assets is to check the propensity to abuse a public office, for private gain. If the information applicant is able to demonstrate what Section 8(1) (j) enjoins the information seeker to, i.e. that “the larger public interest justifies the disclosure of such information” the authority deciding the application can proceed to the next step, after recording its prima facie satisfaction, to issue notice to the “third party” i.e. the public servant.
The obligation to give access or deny access to information, is today controlled by provisions of the Act, as it presently exists. It nowhere obliges disclosure of assets of spouses, dependants and children – of judges. Members of the higher judiciary are, in this respect entitled to the same protection – and exemptions- as in the case of other public servants, including judicial officers up to the District Judge level, members of All India services, and other services under the Union.
For the purposes of this case, however, the particulars sought do not justify or warrant that protection; all that the applicant sought is whether the 1997 resolution was complied with. That kind of innocuous information does not warrant the protection granted by Section 8 (1)(j).
An honest, but strict or unpopular judge can be unfairly vilified, without anyone giving his version; similarly, unfounded allegations of improper personal behaviour cannot be defended by the judge in public, even though they can be levelled freely; they may tarnish his reputation or worse, and he would have to smart under them, under the haunting prospect of its being resuscitated every now and then.
The perception that the wheels of justice grind too slowly, in the meanwhile, continues. For the litigant, who pins his hopes on speedy resolution of his disputes, these explanations may wear thin; yet the judge who tries cases is not superhuman; the judge is as human as any other citizen.
The popular public perception is that judges do not work after official hours, and enjoy long vacations, a hangover of the British Raj. On the contrary, a crushing load ensures that judges put in equal number of hours, sometimes more, than what is spent by them, in open court, resulting typically in 10-14 hour working days, at times more. Most Saturdays are working days, if the judicial officer or the judge has to be “on par” with the judgments and orders that are to be prepared and announced. If judges have to understand and deal with all the cases listed before their courts, they would also have to spend some time, beforehand, reading up the previous day.
It would be useful to quote Dr. Barrack, from “The Judge in a Democracy” again, as it summarizes the values which every judge is committed to live by: “ As a judge, I do not have a political platform. I am not a political person. Right and left, religious and secular, rich and poor, man and woman, disabled and nondisabled, all are equal in my eyes. All are human beings, created in the image of the Creator. I will protect the human dignity of each. I do not aspire to power. I do not seek torule. I am aware of the chains that bind me as a judge and as the president of the Supreme Court. I have repeatedly emphasized the rule of law and not of the judge. I am aware of the importance of the other branches of government – legislative and executive – which give expression to democracy. Between those two branches are connecting bridges and checks and balances. I view my office as a mission. Judging is not a job. It is a way of life. Whenever I enter the courtroom, I do so with the deep sense that, as I sit at trial, I stand on trial.”
fiduciary relationship
The Advanced Law Lexicon, 3rd Edition, 2005, defines fiduciary relationship as “a relationship in which one person is under a duty to act for the benefit of the other on the matters within the scope of the relationship….Fiduciary relationship usually arise in one of the four situations (1) when one person places trust in the faithful integrity of another, who is a result gains superiority or influence over the first, (2) when one person assumes control and responsibility over another, (3) when one person has a duty to act or give advice to another on matters falling within the scope of the relationship, or (4) when there is specific relationship that has traditionally berecognized as involving fiduciary duties, as with a lawyer and a client, or a stockbroker and a customer”
Sir Ivor Jennings
“The laws provide only a framework; those who put the laws into operation give the framework a meaning and fill in the interstices. Those who take decisions create precedents which others tend to follow, and when they have been followed long enough they acquire the sanctity and the respectability of age. They not only are followed but they have to be followed. We are of the view that there is no distinction between the constitutional law and an established constitutional convention and bothare binding in the field of their operation. Once it is established to the satisfaction of the Court that a particular convention exists and is operating then the convention becomes a part of the constitutional law of the land and can be enforced in the like manner.”
Andi Mukta Sadguru Shree Muktajee Vandas Swami Suvarna Jayanti Mahotsav Smarak Trust v. V.R. Rudani, (1989) 2 SCC 691
The duty must be judged in the light of positive obligation owed by the person or authority to the affected party. No matter by what means the duty is imposed, if a positive obligation exists, mandamus cannot be denied.
A.K. Kraipak v. Union of India 1969 (2) SCC 262
the line between quasi-judicial orders and administrative orders had thinned.
K. Veeraswami v. Union of India 1991 (3) SCC 655
members of the higher judiciary (High Courts and the Supreme Court) are covered by the Prevention of Corruption Act, and can be prosecuted, provided the CJI is consulted beforehand, and consents to that course.
fiduciary relationship
Black’s Law Dictionary as “one founded on trust or confidence reposed by one person in the integrity and fidelity of another.”
Union of India v. Association for Democratic Reforms, AIR 2002 SC 2112
citizens who elect MPs or MLAs are entitled to know that their representative has not misconducted himself in collecting wealth after being elected. This information could be easily gathered only if prior to election, the assets of such person are disclosed
Indira Jaising v. Registrar General 2003 (5) SCC 494
“Therefore, in the hierarchy of the courts, the Supreme Court does not have any disciplinary control over the High Court Judges, much less the Chief Justice of India has any disciplinary control over any of the Judges. That position in law is very clear. Thus, the only source or authority by which the Chief Justice of India can exercise this power of inquiry is moral or ethical and not in exercise of powers under any law. Exercise of such power of the Chief Justice of India based on moral authority cannot be made the subject-matter of a writ petition to disclose a report made to him.”
Sep 8, 2009
CS (OS) No.392/2005 Date of decision : August 21, 2009
The mere fact that a website is accessible in a particular place may not itself be sufficient for the courts of that place to exercise personal jurisdiction over the owners of the website. However, where the website is not merely passive but is interactive permitting the users not only to have access to the contents thereof but, also subscribe to the services provided by the owners/operators, may in certain circumstances create jurisdiction in the court of that place where the website is accessible. Where the website is interactive, the level of interactivity becomes relevant and in cases of limited interactivity such interactivity may not be sufficient for a court to exercise jurisdiction.In this case not even a small part of cause of action has arisen in Delhi. Hence, court hold that this court has no territorial jurisdiction to entertain the present suit.
M.N. Ojha and Ors. Vs. Alok Kumar Srivastav and Anr. SLP (Crl.) No. 1875 of 2008 Decided On: 21.08.2009
the saving of inherent power of the High Court in criminal matters is intended to achieve a salutary public purpose "which is that a court proceeding ought not to be permitted to degenerate into a weapon of harassment or persecution. If such power is not conceded, it may even lead to injustice".
Pepsi Foods Ltd. and Anr. v. Special Judicial Magistrate and Ors. (1998)5 SCC 749
Summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. It is not that the complainant has to bring only two witnesses to support his allegations in the complaint to have the criminal law set into motion. The order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. He has to examine the nature of allegations made in the complaint andthe evidence both oral and documentary in support thereof and would that be sufficient for the complainant to succeed in bringing charge home to the accused. It is not that the Magistrate is a silent spectator at the time of recording of preliminary evidence before summoning of the accused. The Magistrate has to carefully scrutinise the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations or otherwise and then examine if any offence is prima facie committed by all or any of the accused.
Jagannath Ganeshram Agarwala v. Shivnarayan Bhagirath and Ors. AIR 1940 Bombay 247
the liability of the surety is co-extensive, but is not in the alternative. Both the principal debtor and the surety are liable at the same time to the creditors.
Halsbury's Laws of England, Fourth Edition,Vol. 20, paragraph 159 at page 87
"it is not necessary for the creditor, before proceeding against the surety, to request the principal debtor to pay, or to sue him, although solvent, unless this is expressly stipulated for".
Lachhman Joharimal v. Bapu Khandu and Tukaram Khandoji (1869) 6 Bombay High Court Reports 241
a creditor is not bound to exhaust his remedy against the principal debtor before suing the surety and that when a decree is obtained against a surety, it may be enforced in the same manner as a decree for any other debt.
Sep 7, 2009
DELHI HIGHER JUDICIAL SERVICE EXAMINATION – 2009
Application form including the DHJSE Registration Form can be obtained
personally on payment of Rs. 1,000/- each for General Category candidates and
Rs. 200/- for Scheduled Castes/Scheduled Tribes candidates on any working day
from 14.09.2009 to 14.10.2009 between 10.30 A.M. & 1.00 P.M. and 2.00 P.M. &
4.00 P.M. from the Filing Counter of Delhi High Court, or by sending a self
addressed envelope of 38 cm X 25 cm size with postage stamp of Rs. 60/- affixed on
it alongwith Demand Draft of Rs. 1,000/- for General Category candidates and
Rs. 200/- for Scheduled Castes/Scheduled Tribes candidates in favour of Registrar
General, Delhi High Court, New Delhi payable at New Delhi in an envelope
addressed to Joint Registrar (Vig.), Delhi High Court, New Delhi, superimposed with
words in bold letters, “DHJS EXAMINATION– 2009”. The prescribed Application
Form alongwith instructions and DHJSE Registration Form will be sent to the
candidate(s) by Speed Post/Registered Post subject to their fulfilling above said
requirements and no enquiry / correspondence shall be entertained in this regard.
personally on payment of Rs. 1,000/- each for General Category candidates and
Rs. 200/- for Scheduled Castes/Scheduled Tribes candidates on any working day
from 14.09.2009 to 14.10.2009 between 10.30 A.M. & 1.00 P.M. and 2.00 P.M. &
4.00 P.M. from the Filing Counter of Delhi High Court, or by sending a self
addressed envelope of 38 cm X 25 cm size with postage stamp of Rs. 60/- affixed on
it alongwith Demand Draft of Rs. 1,000/- for General Category candidates and
Rs. 200/- for Scheduled Castes/Scheduled Tribes candidates in favour of Registrar
General, Delhi High Court, New Delhi payable at New Delhi in an envelope
addressed to Joint Registrar (Vig.), Delhi High Court, New Delhi, superimposed with
words in bold letters, “DHJS EXAMINATION– 2009”. The prescribed Application
Form alongwith instructions and DHJSE Registration Form will be sent to the
candidate(s) by Speed Post/Registered Post subject to their fulfilling above said
requirements and no enquiry / correspondence shall be entertained in this regard.
Prem Shankar Pandey & Others Vs State Of U.P. & Another, HIGH COURT OF ALLAHABAD APPLICATION U/S 482 No. - 16003 of 2009
The words "Nothing in this Code" used in section 482 is a non obstante clause, and give it overriding effect over other provisions in the Cr.P.C. The words "or otherrwise to secure the ends of justice" in section 482 implies that to secure the interest of justice, sometimes (though only in very rare cases) the High Court can pass an order in violation of a provision in the Cr.P.C. in appropriate cases where the dispute is of a personal nature and the parties have settled the dispute amicably, the High Court in exercise of its inherent power under section 482 Cr.P.C. can quash the criminal proceedings even in those cases where the offences are non- compoundable.
.S.Joshi & others vs. State of Haryana and another 2003 (46) ACC 779
Marriage is a scared ceremony, the main purpose of which is to enable the young couple to settle down in life and live peacefully. But little matrimonial skirmishes suddenly erupt which often assume serious proportions resulting in commission of heinous crimes in which elders of the family are also involved with the result that those who could have counselled and brought about rapprochement are rendered helpless on their being arrayed as accused in the criminal case. There are many other reasons which need not be mentioned here for not encouraging matrimonial litigation so that the parties may ponder over their defaults and terminate their disputes amicably by mutual agreement instead of fighting it out in a court of law where it takes years and years to conclude and in that process the parties lose their "young" days in chasing their " cases" in different courts.
There is no doubt that the object of introducing Chapter XX-A containing section 498-A in the Indian Penal Code was to prevent the torture to a woman by her husband or by relatives of her husband. Section 498-A was added with a view to punishing a husband and his relatives who harass or torture the wife to coerce her or her relatives to satisfy unlawful demands of dowry. The hyper-technical view would be counter productive and would act against interests of women and against the object for which this provision was added. There is every likelihood that non-exercise of inherent power to quash the proceedings to meet the ends of justice would prevent women from settling earlier. That is not the object of Chapter XXA of Indian Penal Code.
There is no doubt that the object of introducing Chapter XX-A containing section 498-A in the Indian Penal Code was to prevent the torture to a woman by her husband or by relatives of her husband. Section 498-A was added with a view to punishing a husband and his relatives who harass or torture the wife to coerce her or her relatives to satisfy unlawful demands of dowry. The hyper-technical view would be counter productive and would act against interests of women and against the object for which this provision was added. There is every likelihood that non-exercise of inherent power to quash the proceedings to meet the ends of justice would prevent women from settling earlier. That is not the object of Chapter XXA of Indian Penal Code.
U.P. v. Gobardhan Lal (2004) 11 SCC 402
allegations of mala-fides must inspire confidence of the Court and ought not to be entertained on the mere asking of it or on consideration borne out of conjectures or surmises and except for strong and convincing reasons, no interference would ordinarily be made with an order of transfer. That the burden of proving mala-fides is on a person leveling such allegations and the burden is heavy, admits of no legal ambiguity. Mere assertion or bald statement is not enough to discharge the heavy burden that the law imposes upon the person leveling allegations of mala-fides; it must be supported by requisite materials.
Sep 6, 2009
State of Rajasthan Vs. Naresh @ Ram Naresh Cr.A. No. 837 of 2002 Decided by supreme court on: 26.08.2009
An order of acquittal should not be lightly interfered with even if the court believes that there is some evidence pointing out the finger towards the accused. The view that is taken by the High Court is found to be a plausible view, and therefore, the benefit must always go to the accused and not to the prosecution. If the prosecution wants to prove the fact, the same must be proved by leading evidence, which is reliable and trustworthy, which pinpoints and conclusively proves the guilt of the accused.
State of U.P. v. Gambhir Singh (2005) 11 SCC 271
We do not feel persuaded to interfere with the order of the High Court in an appeal against acquittal. It is well settled that if on the same evidence two views are reasonably possible, the one in favour of the accused must be preferred.
Chandrappa v. State of Karnataka (2007) 4 SCC 415
In our considered view, the following general principles regarding powers of the appellate court while dealing with an appeal against an order of acquittal emerge:
( 1) An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded.
(2) The Code of Criminal Procedure, 1973 puts nolimitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law.
( 3) Various expressions, such as, "substantial and compelling reasons", "good and sufficient grounds", "very strong circumstances", "distorted conclusions", "glaring mistakes", etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of "flourishes of language" to emphasise the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidenceand to come to its own conclusion.
(4) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court.
(5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellatecourt should not disturb the finding of acquittal recorded by the trial court.
( 1) An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded.
(2) The Code of Criminal Procedure, 1973 puts nolimitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law.
( 3) Various expressions, such as, "substantial and compelling reasons", "good and sufficient grounds", "very strong circumstances", "distorted conclusions", "glaring mistakes", etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of "flourishes of language" to emphasise the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidenceand to come to its own conclusion.
(4) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court.
(5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellatecourt should not disturb the finding of acquittal recorded by the trial court.
Anil Kumar v. State of U.P. (2004) 13 SCC 257
There is no embargo on the appellate court reviewing the evidence upon which an order of acquittal is based. Generally, the order of acquittal shall not be interfered with because the presumption of innocence of the accused is further strengthened by acquittal. 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 theaccused 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.
Sep 5, 2009
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Babubhai Jamnadas Patel Vs. State of Gujarat and Ors. Supreme Court of India, Criminal Appeal Nos. 1678-1679 of 2009
“There is little doubt that normally investigation of offences is the function of the investigating agencies and the Courts do not ordinarily interfere with the same. But, at the same time the High Court is vested with such powers, though the same are invoked only in cases where extraordinary facts are involved, necessitating such monitoring by the Courts.” “The Courts, and in particular the High Courts and the Supreme Court, are the sentinels of justice and have been vested with extraordinary powers of judicial review and supervision to ensure that the rights of the citizens are duly protected. The Courts have to maintain a constant vigil against the inaction of the authorities in discharging their duties and obligations in the interest of the citizens for whom they exist. This Court, as also the High Courts, have had to issue appropriate writs and directions from time to time to ensure that the authorities performed at least such duties as they were required to perform under the various statutes and orders passed by the administration. As for example, in the instant case, the High Court had to repeatedly intervene and pass orders to ensure that the investigation was being conducted diligently.” “no doubt that in appropriate cases, the Courts may monitor an investigation into an offence when it is satisfied that either the investigation is not being proceeded with or is being influenced by interested persons.”
Vineet Narain and Ors. v. Union of India and Anr. (1998) 1 SCC 226, popularly known as "Hawala case
" in the absence of appropriate legislation and even executive orders in matters of public interest and urgency, the Supreme Court, in exercise of its powers under Article 142 of the Constitution, can issue orders and directions to fill the gap for enforcement of fundamental rights and doing complete justice between the parties.
M.C. Abraham and Anr. v. State of Maharashtra and Ors. (2003) 2 SCC 649
whether a charge-sheet should be submitted or not was the concern of the Investigating Agency and the High Court had exceeded its jurisdiction in directing the same to be filed.
Director, Central Bureau of Investigation and Ors. v. `Niyamavedi' (1995) 3 SCC 601
“Any observations which may amount to interference in the investigation, should not be made. Ordinarily the Court should refrain from interfering at a premature stage of the investigation as that may derail the investigation and demoralise the investigation. Of late, the tendency to interfere in the investigation is on the increase and Courts should be wary of its possible consequences. We say no more.”
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