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Jul 31, 2010
Shiv Kumar v. Hukam Chand 1999 (7) SCC 467
Hon’ble Supreme Court of India observed, “In the magistrate's court anybody (except a police officer below the rank of Inspector) can conduct prosecution, if the magistrate permits him to do so. Once the permission is granted the person concerned can appoint any counsel to conduct the prosecution on his behalf in the magistrate's court….. From the scheme of the Code the legislative intention is manifestly clear that prosecution in a session court cannot be conducted by any one other than the Public Prosecutor. The legislature reminds the State that the policy must strictly conform to fairness in the trial of an accused in a sessions court. A Public Prosecutor is not expected to show a thirst to reach the case in the conviction of the accused somehow or the other irrespective of the true facts involved in the case. The expected attitude of the Public Prosecutor while conducting prosecution must be couached in fairness not only to the court and to the investigating agencies but to the accused as well. If an accused is entitled to any legitimate benefit during trial the Public Prosecutor should not scuttle/conceal it. On the contrary, it is the duty of the Public Prosecutor to winch it to the fore and make it available to the accused. Even if the defence counsel overlooked it, Public Prosecutor has the added responsibility to bring it to the notice of the court if it comes to his knowledge. A private counsel, if allowed free hand to conduct prosecution would focus on bringing the case to conviction even if it is not a fit case to be so convicted. That is the reason why Parliament applied a bridle on him and subjected his role strictly to the instructions given by the Public Prosecutor.”
Jul 30, 2010
‘K’ A Judicial Officer (2001) 3 SCC 54
“A Subordinate Judge faced with disparaging and undeserving remarks made by a court of superior jurisdiction is not without any remedy. He may approach the High Court invoking its inherent jurisdiction seeking expunction of objectionable remarks which jurisdiction vests in the High Court by virtue of its being a court of record and possessing inherent powers as also the power of superintendence.”
Jul 29, 2010
R.V. Bhasin Vs State of Maharashtra Bombay HC on 06.01.10
“Supreme Court dated 30/8/1999 in Shiv Kumar v. Hukum Chand & Anr. In that case, the appellant/complainant wanted the counsel appointed by him to conduct the prosecution in the Sessions Court. The public prosecutor had consented to it. The High Court rejected the prayer. After considering the relevant provisions of the Code, particularly Section 301 thereof, the Supreme Court endorsed the High Court's view after observing that the prosecution in a Sessions Case cannot be conducted by anyone other than the public prosecutor. The Supreme Court observed that if a private counsel is allowed a free hand to conduct a prosecution he would focus on bringing the case to conviction even if it is not a fit case where the accused could be convicted………The Supreme Court (in Ramji Lal Modi vs State of U.P AIR 1957 SC 620)observed that Section 295-A does not penalize any and every act of insult to or attempt to insult the religion or the religious beliefs of a class of citizens but it penalises only those acts of insults to or those varieties of attempts to insult the religion or the religious beliefs of a class of citizens which are perpetrated with the deliberate and malicious intention of outraging the religious feelings of that class”
Following are the principles.banning abook u/s95 CrPC “a) The Notification must state the grounds of the Government’s opinion. (Harnam, Narayan Das, Lalai Singh Yadav)
b) A formal authoritative setting forth of the grounds is statutorily mandatory. Appendix cannot make up for grounds of opinion. (Lalai Singh Yadav AIR 1977 SC 202)
c) Mere repetition of an opinion or reproduction of the Section will not answer the requirement of a valid notification. (Narayan Das)
d) Grounds must not be stated at learned length. In certain cases a laconic statement may be enough while in others more detailed reasons may be required. Grounds may be brief but cannot be blank. (Lalai Singh Yadav)
e) Grounds of opinion must mean conclusion of facts on which the opinion is based. Grounds must necessarily be the import or the effect or the tendency of the matters contained in the offending publication either as a whole or in portions of it, as illustrated by passages which Government may choose, (Narayan Das’s case where the Supreme Court referred to the Calcutta High Court’s judgment in Arun Ranjan Ghose with approval).
f) The High Court must set aside an order of forfeiture if there are no grounds of opinion because if there are no grounds of opinion, it cannot be satisfied that the grounds given by the Government justified the order. If in such case, the High Court upholds the order, it would mean that the High Court itself made the order which the High Court cannot do. (Harnam)
g) The High Court must set aside the order of forfeiture if it is not satisfied that the grounds on which the Government formed it’s opinion justify that opinion. (Harnam)
h) The validity of the order of forfeiture would depend on the merits of the grounds. It is not the duty of the High Court to find out for itself whether the book contained any such matter whatsoever. The High Court cannot make a roving enquiry beyond the grounds set forth in the order. (Harnam)
i) The State cannot extract stray sentences of portions of the book and come to a finding that the said book as a whole ought to be forfeited. (Baragur (2007) 5 SCC 11)
j) The matter charged as being within the mischief of the relevant sections of the IPC must be read as a whole. One cannot rely on stray, isolated passages for proving the charge nor indeed can one take a sentence here and a sentence there and connect them by a meticulous process of inferential reasoning. (Gopal Godse, Special Bench, Bombay High Court.)
k) Section 295-A of the IPC does not penalize any and every act of insult to or attempt to insult the religion or religious beliefs of a class of citizens. There must be a malicious or deliberate intention to outrage the religious feelings of a class of citizens. (Ramji Modi, Balwant Singh, Manzar Khan, Bhagwati Charan Sharma Nagpur High Court, Gopal Godse Special Bench, Bombay High Court.)
l) Intention of the author has to be gathered from the language, contents and import of the offending material. (Baragur, Gopal Godse Special Bench, Bombay High Court).
m) If the purpose of writing the book was a historical research based on a number of reference books and other material, it would be difficult for the State to contend that simple narration of history would promote violence, enmity or hatred. (Varsha Publications, Special Bench, Bombay High Court.)
n) If the allegations made in the offending article is based on folklore, tradition or history something in extenuation could perhaps be said for the author. (Baragur)
o) If the writing is calculated to promote feelings of enmity or hatred, it is no defence to a charge under Section 153-A of the IPC that the writing contains a truthful account of past events or is otherwise supported by good authority. Adherence to the strict path of history is not by itself a complete defence to a charge under Section 153-A. (Gopal Godse, Special Bench, Bombay High Court).
p) Section 95(1) of the Code requires that the ingredients of the offences should appear to the Government to be present. Section 95 does not require that it should be proved to the satisfaction of the Government that all requirements of punishing sections including mens rea were fully established. (Baragur, Nandkishore, Special Bench of Patna High Court).
q) The onus to dislodge the prima facie opinion of the Government that the offending publication comes within the relevant offence including its requirement of intent is on the applicant and such intention has to be gathered from the language, contents and import thereof. (Nandkishore, Special Bench of Patna High Court, approved in Baragur.)
r) It is not necessary to prove that as a result of the objectionable matter enmity or hatred was in fact caused between the different classes. It is enough to show that the language of the writing is of a nature calculated to promote feelings of enmity or hatred. (Gopal Godse, Special Bench, Bombay High Court.).
s) For judging what are the natural or probable consequences of the writing, it is permissible to take into consideration the class of readers for whom the book is primarily meant as also the state of feelings between the different classes or communities at the relevant time. (Gopal Godse, Special Bench, Bombay High Court.)
t) Whether the objectionable matter is meant for limited circulation, whether it is to cater to ignorant, illiterate inflammable mob or educated people would be a relevant consideration. (Bhagwati Charan Sharma – Nagpur High Court).
u) The effect of the words must be judged from the standards of reasonable strongminded, firm and courageous men and not those of weak and vacillating minds, nor of those who scent danger in every hostile point of view. (Ramesh v. Union of India, AIR 88 SC 775, Manzar Khan, Bhagwati Charan Sharma – Nagpur High Court.)”
Following are the principles.banning abook u/s95 CrPC “a) The Notification must state the grounds of the Government’s opinion. (Harnam, Narayan Das, Lalai Singh Yadav)
b) A formal authoritative setting forth of the grounds is statutorily mandatory. Appendix cannot make up for grounds of opinion. (Lalai Singh Yadav AIR 1977 SC 202)
c) Mere repetition of an opinion or reproduction of the Section will not answer the requirement of a valid notification. (Narayan Das)
d) Grounds must not be stated at learned length. In certain cases a laconic statement may be enough while in others more detailed reasons may be required. Grounds may be brief but cannot be blank. (Lalai Singh Yadav)
e) Grounds of opinion must mean conclusion of facts on which the opinion is based. Grounds must necessarily be the import or the effect or the tendency of the matters contained in the offending publication either as a whole or in portions of it, as illustrated by passages which Government may choose, (Narayan Das’s case where the Supreme Court referred to the Calcutta High Court’s judgment in Arun Ranjan Ghose with approval).
f) The High Court must set aside an order of forfeiture if there are no grounds of opinion because if there are no grounds of opinion, it cannot be satisfied that the grounds given by the Government justified the order. If in such case, the High Court upholds the order, it would mean that the High Court itself made the order which the High Court cannot do. (Harnam)
g) The High Court must set aside the order of forfeiture if it is not satisfied that the grounds on which the Government formed it’s opinion justify that opinion. (Harnam)
h) The validity of the order of forfeiture would depend on the merits of the grounds. It is not the duty of the High Court to find out for itself whether the book contained any such matter whatsoever. The High Court cannot make a roving enquiry beyond the grounds set forth in the order. (Harnam)
i) The State cannot extract stray sentences of portions of the book and come to a finding that the said book as a whole ought to be forfeited. (Baragur (2007) 5 SCC 11)
j) The matter charged as being within the mischief of the relevant sections of the IPC must be read as a whole. One cannot rely on stray, isolated passages for proving the charge nor indeed can one take a sentence here and a sentence there and connect them by a meticulous process of inferential reasoning. (Gopal Godse, Special Bench, Bombay High Court.)
k) Section 295-A of the IPC does not penalize any and every act of insult to or attempt to insult the religion or religious beliefs of a class of citizens. There must be a malicious or deliberate intention to outrage the religious feelings of a class of citizens. (Ramji Modi, Balwant Singh, Manzar Khan, Bhagwati Charan Sharma Nagpur High Court, Gopal Godse Special Bench, Bombay High Court.)
l) Intention of the author has to be gathered from the language, contents and import of the offending material. (Baragur, Gopal Godse Special Bench, Bombay High Court).
m) If the purpose of writing the book was a historical research based on a number of reference books and other material, it would be difficult for the State to contend that simple narration of history would promote violence, enmity or hatred. (Varsha Publications, Special Bench, Bombay High Court.)
n) If the allegations made in the offending article is based on folklore, tradition or history something in extenuation could perhaps be said for the author. (Baragur)
o) If the writing is calculated to promote feelings of enmity or hatred, it is no defence to a charge under Section 153-A of the IPC that the writing contains a truthful account of past events or is otherwise supported by good authority. Adherence to the strict path of history is not by itself a complete defence to a charge under Section 153-A. (Gopal Godse, Special Bench, Bombay High Court).
p) Section 95(1) of the Code requires that the ingredients of the offences should appear to the Government to be present. Section 95 does not require that it should be proved to the satisfaction of the Government that all requirements of punishing sections including mens rea were fully established. (Baragur, Nandkishore, Special Bench of Patna High Court).
q) The onus to dislodge the prima facie opinion of the Government that the offending publication comes within the relevant offence including its requirement of intent is on the applicant and such intention has to be gathered from the language, contents and import thereof. (Nandkishore, Special Bench of Patna High Court, approved in Baragur.)
r) It is not necessary to prove that as a result of the objectionable matter enmity or hatred was in fact caused between the different classes. It is enough to show that the language of the writing is of a nature calculated to promote feelings of enmity or hatred. (Gopal Godse, Special Bench, Bombay High Court.).
s) For judging what are the natural or probable consequences of the writing, it is permissible to take into consideration the class of readers for whom the book is primarily meant as also the state of feelings between the different classes or communities at the relevant time. (Gopal Godse, Special Bench, Bombay High Court.)
t) Whether the objectionable matter is meant for limited circulation, whether it is to cater to ignorant, illiterate inflammable mob or educated people would be a relevant consideration. (Bhagwati Charan Sharma – Nagpur High Court).
u) The effect of the words must be judged from the standards of reasonable strongminded, firm and courageous men and not those of weak and vacillating minds, nor of those who scent danger in every hostile point of view. (Ramesh v. Union of India, AIR 88 SC 775, Manzar Khan, Bhagwati Charan Sharma – Nagpur High Court.)”
Jul 28, 2010
Smt Yamunabai Anantrao Adhav Vs Anantrao Shivram Adhav and Anr AIR 1988 S.C.
Hon’ble Supreme Court of India observed, “The marriages covered by S.11 are void ipso jure, that is, void from the very inception, and have to be ignored as not existing in law at all if and when such a question arises. Although the section permits a formal declaration to be made on the presentation of a petition, it is not essential to obtain in advance such a formal declaration from a court in a proceeding specifically commenced from the purpose….the marriage of a woman in accordance with the Hindu rites with a man having a living spouse is a complete nullity in the eye of law and she is not entitled to the benefit of Section 125 of the Code..”
Jul 27, 2010
In Mangala Bhivaji Lad Bombay High Court on 29.03.2010
Court observed that“Rameshchandra Daga Vs Rameshwari Daga (2005) 2 S.C.C. 33 In that case, Apex Court confirmed the order of grant of maintenance to the second wife passed at the time of decree under Section 11 of the Hindu Marriage Act…..According to Delhi High Court, (Smt. Narinder Pal Kaur Chawla Vs Manjit Singh Chawla reported in AIR 2008 Delhi 7) a Hindu husband is estoped from challenging validity of the second marriage in view of the wrong committed by him in not disclosing to the second wife the factum of his first marriage, otherwise it would amount to giving premium to the husband for defrauding the second wife….We fully agree with the view expressed by the Andhra Pradesh High Court (Abbayolla M. Subba Reddy Vs Padmamma, reported in AIR 1999 Andhra Pradesh 19) that the expression Hindu ”wife used in Section 18 of the Hindu Adoption and Maintenance Act, means legally wedded Hindu wife and no less. The appellant not being the legally wedded wife of the respondent cannot resort to Section 18 of the Hindu Adoption and Maintenance Act to claim maintenance.”
Jul 26, 2010
State of Uttaranchal Vs Balwant Singh Chaufal & Others
Hon’ble Supreme Court of India on 18.01.2010 observed, “The public interest litigation is the product of realization of the constitutional obligation of the court….Public interest litigation is not in the nature of adversary litigation but it is a challenge and an opportunity to the government and its officers to make basic human rights meaningful to the deprived and vulnerable sections of the community and to assure them social and economic justice which is the signature tune of our Constitution. The Government and its officers must welcome public interest litigation because it would provide them an occasion to examine whether the poor and the down-trodden are getting their social and economic entitlements or whether they are continuing to remain victims of deception and exploitation at the hands of strong and powerful sections of the community and whether social and economic justice has become a meaningful reality for them or it has remained merely a teasing illusion and a promise of unreality, so that in case the complaint in the public interest litigation is found to be true, they can in discharge of their constitutional obligation root out exploitation and injustice and ensure to the weaker sections their rights and entitlements….We deem it appropriate to broadly divide the public interest litigation in three phases.
Phase-I: It deals with cases of this Court where directions and orders were passed primarily to protect fundamental rights under Article 21 of the marginalized groups and sections of the society who because of extreme poverty, illiteracy and ignorance cannot approach this court or the High Courts.
Phase-II: It deals with the cases relating to protection, preservation of ecology, environment, forests, marine life, wildlife, mountains, rivers, historical monuments etc. etc.
Phase-III: It deals with the directions issued by the Courts in maintaining the probity, transparency and integrity in governance.
...In Sunil Batra v. Delhi Administration & Others AIR 1978 SC 1675, the Court departed from the traditional rule of standing by authorizing community litigation…
…In Smt. Nilabati Behera alias Lalita Behera v. State of Orissa & Others AIR 1993 SC 1960, this Court gave directions that for contravention of human rights and fundamental freedoms by the State and its agencies, a claim for monetary compensation in petition under Article 32 of 226…
....Prajwala v. Union of India & Others (2009) 4 SCC 798, a petition was filed in this Court in which it was realized that despite commencement of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995, disabled people are not given preferential treatment
……In Avinash Mehrotra v. Union of India & Others (2009) 6 SCC 398, a public interest litigation was filed, when children were burnt alive in a fire at a private school in Tamil Nadu. This happened because the school did not have the minimum safety standard measures. The court, in order to protect future tragedies in all such schools, gave directions that it is the fundamental right of each and every child to receive education free from fear of security and safety, hence the Government should implement National Building Code and comply with the said orders in constructions of schools for children…
……M. C. Mehta v. Union of India & Others (2007) 12 SCALE 91, in another public interest litigation, a question whether the Apex Court should consider the correctness of the order passed by the Governor of Uttar Pradesh refusing to grant sanction for prosecution of the Chief Minister and Environment Minister after they were found responsible in ‘Taj Heritage Corridor Project”. It was held that the judiciary can step in where it finds the actions on the part of the legislature or the executive to be illegal or unconstitutional…
…In BALCO Employees’ Union (Regd.) v. Union of India & Others AIR 2002 SC 350, this Court recognized that there have been, in recent times, increasing instances of abuse of public interest litigation. Accordingly, the court has devised a number of strategies to ensure that the attractive brand name of public interest litigation should not be allowed to be used for suspicious products of mischief. Firstly, the Supreme Court has limited standing in PIL to individuals “acting bonafide.” Secondly, the Supreme Court has sanctioned the imposition of “exemplary costs”…
……. directions: (1) The courts must encourage genuine and bona fide PIL and effectively discourage and curb the PIL filed for extraneous considerations.
2) Instead of every individual judge devising his own procedure for dealing with the public interest litigation, it would be appropriate for each High Court to properly formulate rules for encouraging the genuine PIL and discouraging the PIL filed with oblique motives. Consequently, we request that the High Courts who have not yet framed the rules, should frame the rules within three months. The Registrar General of each High Court is directed to ensure that a copy of the Rules prepared by the High Court is sent to the Secretary General of this court immediately thereafter.
3) The courts should prima facie verify the credentials of the petitioner before entertaining a P.I.L.
4) The court should be prima facie satisfied regarding the correctness of the contents of the petition before entertaining a PIL.
5) The court should be fully satisfied that substantial public interest is involved before entertaining the petition.
6) The court should ensure that the petition which involves larger public interest, gravity and urgency must be given priority over other petitions.
7) The courts before entertaining the PIL should ensure that the PIL is aimed at redressal of genuine public harm or public injury. The court should also ensure that there is no personal gain, private motive or oblique motive behind filing the public interest litigation.
8) The court should also ensure that the petitions filed by busybodies for extraneous and ulterior motives must be discouraged by imposing exemplary costs or by adopting similar novel methods to curb frivolous petitions and the petitions filed for extraneous considerations.”
Phase-I: It deals with cases of this Court where directions and orders were passed primarily to protect fundamental rights under Article 21 of the marginalized groups and sections of the society who because of extreme poverty, illiteracy and ignorance cannot approach this court or the High Courts.
Phase-II: It deals with the cases relating to protection, preservation of ecology, environment, forests, marine life, wildlife, mountains, rivers, historical monuments etc. etc.
Phase-III: It deals with the directions issued by the Courts in maintaining the probity, transparency and integrity in governance.
...In Sunil Batra v. Delhi Administration & Others AIR 1978 SC 1675, the Court departed from the traditional rule of standing by authorizing community litigation…
…In Smt. Nilabati Behera alias Lalita Behera v. State of Orissa & Others AIR 1993 SC 1960, this Court gave directions that for contravention of human rights and fundamental freedoms by the State and its agencies, a claim for monetary compensation in petition under Article 32 of 226…
....Prajwala v. Union of India & Others (2009) 4 SCC 798, a petition was filed in this Court in which it was realized that despite commencement of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995, disabled people are not given preferential treatment
……In Avinash Mehrotra v. Union of India & Others (2009) 6 SCC 398, a public interest litigation was filed, when children were burnt alive in a fire at a private school in Tamil Nadu. This happened because the school did not have the minimum safety standard measures. The court, in order to protect future tragedies in all such schools, gave directions that it is the fundamental right of each and every child to receive education free from fear of security and safety, hence the Government should implement National Building Code and comply with the said orders in constructions of schools for children…
……M. C. Mehta v. Union of India & Others (2007) 12 SCALE 91, in another public interest litigation, a question whether the Apex Court should consider the correctness of the order passed by the Governor of Uttar Pradesh refusing to grant sanction for prosecution of the Chief Minister and Environment Minister after they were found responsible in ‘Taj Heritage Corridor Project”. It was held that the judiciary can step in where it finds the actions on the part of the legislature or the executive to be illegal or unconstitutional…
…In BALCO Employees’ Union (Regd.) v. Union of India & Others AIR 2002 SC 350, this Court recognized that there have been, in recent times, increasing instances of abuse of public interest litigation. Accordingly, the court has devised a number of strategies to ensure that the attractive brand name of public interest litigation should not be allowed to be used for suspicious products of mischief. Firstly, the Supreme Court has limited standing in PIL to individuals “acting bonafide.” Secondly, the Supreme Court has sanctioned the imposition of “exemplary costs”…
……. directions: (1) The courts must encourage genuine and bona fide PIL and effectively discourage and curb the PIL filed for extraneous considerations.
2) Instead of every individual judge devising his own procedure for dealing with the public interest litigation, it would be appropriate for each High Court to properly formulate rules for encouraging the genuine PIL and discouraging the PIL filed with oblique motives. Consequently, we request that the High Courts who have not yet framed the rules, should frame the rules within three months. The Registrar General of each High Court is directed to ensure that a copy of the Rules prepared by the High Court is sent to the Secretary General of this court immediately thereafter.
3) The courts should prima facie verify the credentials of the petitioner before entertaining a P.I.L.
4) The court should be prima facie satisfied regarding the correctness of the contents of the petition before entertaining a PIL.
5) The court should be fully satisfied that substantial public interest is involved before entertaining the petition.
6) The court should ensure that the petition which involves larger public interest, gravity and urgency must be given priority over other petitions.
7) The courts before entertaining the PIL should ensure that the PIL is aimed at redressal of genuine public harm or public injury. The court should also ensure that there is no personal gain, private motive or oblique motive behind filing the public interest litigation.
8) The court should also ensure that the petitions filed by busybodies for extraneous and ulterior motives must be discouraged by imposing exemplary costs or by adopting similar novel methods to curb frivolous petitions and the petitions filed for extraneous considerations.”
Jul 25, 2010
Dr. K. Krishna Murthy Vs UOI
Hon’ble Supreme Court of India observed on 11.05.2010, “ the right to vote has been held to be a statutory right and not a fundamental right and the same position has been consistently upheld in subsequent decisions…..With respect to the challenge against the constitutional validity of Art. 243-D(6) and 243-T(6) which enable the reservation of seats and chairperson posts in favour of backward classes, we are in agreement with the respondents that these are merely enabling provisions and it would be quite improper to strike them down as violative of the equality clause…..On the question of breaching this upper ceiling, the arguments made by the petitioners were a little misconceived since they had accounted for vertical reservations in favour of SC/ST/OBCs as well as horizontal reservations in favour of women to assert that the 50% ceiling had been breached in some of the States. This was clearly a misunderstanding of the position since the horizontal reservations in favour of women are meant to intersect with the vertical reservations in favour of SC/ST/OBC…..
(i) The nature and purpose of reservations in the context of local self-government is considerably different from that of higher education and public employment.
(ii) Article 243-D(6) and Article 243-T(6) are constitutionally valid since they are in the nature of provisions which merely enable State Legislatures.
(iii) We are not in a position to examine the claims about overbreadth in the quantum of reservations provided for OBCs under the impugned State Legislations since there is no contemporaneous empirical data. The onus is on the executive to conduct a rigorous investigation.
(iv) The upper ceiling of 50% vertical reservations in favour of SC/ST/OBCs should not be breached in the context of local self-government. Exceptions can only be made in order to safeguard the interests of Scheduled Tribes in the matter of their representation in panchayats located in the Scheduled Areas.
(v) The reservation of chairperson posts in the manner contemplated by Article 243-D(4) and 243-T(4) is constitutionally valid.
(i) The nature and purpose of reservations in the context of local self-government is considerably different from that of higher education and public employment.
(ii) Article 243-D(6) and Article 243-T(6) are constitutionally valid since they are in the nature of provisions which merely enable State Legislatures.
(iii) We are not in a position to examine the claims about overbreadth in the quantum of reservations provided for OBCs under the impugned State Legislations since there is no contemporaneous empirical data. The onus is on the executive to conduct a rigorous investigation.
(iv) The upper ceiling of 50% vertical reservations in favour of SC/ST/OBCs should not be breached in the context of local self-government. Exceptions can only be made in order to safeguard the interests of Scheduled Tribes in the matter of their representation in panchayats located in the Scheduled Areas.
(v) The reservation of chairperson posts in the manner contemplated by Article 243-D(4) and 243-T(4) is constitutionally valid.
Jul 24, 2010
Lalu Prasad Yadav & Anr Vs. State of Bihar & Anr
Hon’ble Supreme Court of India on 01.04.2010 abot appeal against acquittal in crpc observed, “Legislature has maintained a mutually exclusive division in the matter of appeal from an order of acquittal inasmuch as the competent authority to appeal from an order of acquittal in two types of cases referred to in sub-section
2) is the central government and the authority of the state government in relation to such cases has been excluded. As a necessary corollary, it has to be held, and we hold, that the State Government (of Bihar) is not competent to direct its public prosecutor to present appeal”
2) is the central government and the authority of the state government in relation to such cases has been excluded. As a necessary corollary, it has to be held, and we hold, that the State Government (of Bihar) is not competent to direct its public prosecutor to present appeal”
Jul 23, 2010
Chhattisgarh State Electricity Board Vs Central Electricity Regulatory Commission
Hon’ble Supreme Court of India on 15.04.10 observed, “Section 5 of the Limitation Act cannot be invoked by this Court for entertaining an appeal filed against the decision or order of the Tribunal beyond the period of 120 days specified in Section 125 of the Electricity Act.”
Jul 22, 2010
Bellamy v. Sabine 1857 (1) De G & J 566
“It is, as I think, a doctrine common to the Courts both of Law and Equity, and rests, as I apprehend, upon this foundation – that it would plainly be impossible that any action or suit could be brought to a successful termination, if alienations pendente lite were permitted to prevail. The plaintiff would be liable in every case to be defeated by the defendant’s alienating before the judgment or decree, and would be driven to commence his proceedings de novo, subject again to be defeated by the same course of proceeding.”
Jul 21, 2010
Nainsingh v. Koonwarjee AIR 1970 SC 997
Hon’ble Supreme Court of India observed, “Under the inherent power of Courts recognized by Section 151 CPC, a Court has no power to do that which is prohibited by the Code. Inherent jurisdiction of the Court must be exercised subject to the rule that if the Code does contain specific provisions which would meet the necessities of the case, such provisions should be followed and inherent jurisdiction should not be invoked. In other words the court cannot make use of the special provisions of Section 151 of the Code where a party had his remedy provided elsewhere in the Code”
Jul 20, 2010
Manohar Lal Chopra v. Rai Bahadur Rao Raja Seth Hiralal AIR 1962 SC 527
Hon’ble Supreme Court of India observed, “the inherent powers are not in any way controlled by the provisions of the Code as has been specifically stated in S.151 itself. But those powers are not to be exercised when their exercised may be in conflict with what had been expressly provided in the Code or against the intentions of the legislature.”
Padam Sen v. State of UP AIR 1961 SC 218
Hon’ble Supreme Court of India observed, “The inherent powers of the court are in addition to the powers specifically conferred on the court by the Code. They are complementary to those powers and therefore it must be held that the court is free to exercise them for the purposes mentioned in S.151 of the Code when the exercise of those powers is not in any way in conflict with what has been expressly provided in the Code or against the intentions of the Legislature.”
Jul 19, 2010
Vinod Seth Vs. Devinder Bajaj & Anr. 2010
Hon’ble Supreme Court of India observed, “Every person has a right to approach a court of law if he has a grievance for which law provides a remedy. Certain safeguards are built into the Code to prevent and discourage frivolous, speculative and vexatious suits. Section 35 of the Code provides for levy of costs….. Code, nowhere authorizes or empowers the court to issue a direction to a plaintiff to file an undertaking to pay damages to the defendant in the event of being unsuccessful in the suit…… Justice Holmes explained and extended the adage thus : (See his dissenting opinion in Northern Securities Co. v. United States 193 (1903) US 197) : “Great cases, like hard cases make bad law. For great cases are called great, not by reason of their real importance in shaping the law of the future, but because of some accident of immediate overwhelming interest which appeals to the feelings and distorts the judgment. These immediate interests exercise a kind of hydraulic pressure which makes what previously was clear seem doubtful, and before which even well settled principles of law will bend.”… The provision for costs is intended to achieve the following goals : (a) It should act as a deterrent to vexatious, frivolous and speculative litigations or defences. The spectre of being made liable to pay actual costs should be such, as to make every litigant think twice before putting forth a vexatious, frivolous or speculative claim or defence. (b) Costs should ensure that the provisions of the Code, Evidence Act and other laws governing procedure are scrupulously and strictly complied with and that parties do not adopt delaying tactics or mislead the court. (c) Costs should provide adequate indemnity to the successful litigant for the expenditure incurred by him for the litigation. This necessitates the award of actual costs of litigation as contrasted from nominal or fixed or unrealistic costs. (d) The provision for costs should be an incentive for each litigant to adopt alternative dispute resolution (ADR) processes and arrive at a settlement before the trial commences in most of the cases. In many other jurisdictions, in view of the existence of appropriate and adequate provisions for costs, the litigants are persuaded to settle nearly 90% of the civil suits before they come up to trial. (e) The provisions relating to costs should not however obstruct access to courts and justice. Under no circumstances the costs should be a deterrent, to a citizen with a genuine or bonafide claim, or to any person belonging to the weaker sections whose rights have been affected, from approaching the courts……… There is (therefore) an urgent need for the legislature and the Law Commission of India to re-visit the provisions relating to costs and compensatory costs contained in Section 35 and 35A of the Code.
State Govt. of NCT of Delhi v. Sunil 2001 CRI. L. J. 504
Supreme Court observed, “we may point out that there is no requirement either under Section 27 of the Evidence Act or under Section 161 of the Code of Criminal Procedure, to obtain signature of independent witnesses on the record in which statement of an accused is written. The legal obligation to call independent and respectable inhabitats of the locality to attend and witness the exercise made by the police is cast on the police officer when searches are made under Chapter VII of the Code….. It must be remembered that search is made to find out a thing or document which the searching officer has no prior idea where the thing or document is kept. He prowls for it either on reasonable suspicion or on some guess work that it could possibly be ferreted out in such prowling. It is a stark reality that during searches the team which conducts search would have to meddle with lots of other articles and documets also and in such process many such articles or documents are likely to be displaced or even strewn helter-skelter. The legislative idea in insisting on such searches to be made in the presence of two independent inhabitants of the locality is to ensure the safety of all such articles meddled with and to protect the rights of the persons entitled thereto. But recovery of an object pursuant to the information supplied by an accused in custody is different from the searching endeavour envisaged in Chapter VII of the Code….. it is a fallacious impression that when recovery is effected pursuant to any statement made by the accused the document prepared by the Investigating Officer contemporaneous with such recovery must necessarily be attested by independent witnesses. Of course, if any such statement leads to recovery of any article it is open to the Investigating Officer to take the signature of any person present at that time, on the document prepared for such recovery. But if no witness was present or if no person had agreed to affix his signature on the document, it is difficult to lay down, as a proposition of law, that the document so prepared by the police officer must be treated as tainted and the recovery evidence unreliable…… We feel that it is an archaic notion that actions of the police officer should be approached with initial distrust. We are aware that such a notion was lavishly entertained during British period and policemen also knew aobut it. Its hang over persisted during post-independent years but it is time now to start placing at least initial trust on the actions and the documents made by the police. At any rate, the Court cannot start with the presumption that the police records are untrustworthy. As a proposition of law the presumption should be the other way around. That official acts of the police have been regularly performed is a wise principle of presumption and recognised even by the legislature. Hence when a police officer gives evidence in Court that a certain article was recovered by him on the strength of the statement made by the accused it is open to the Court to believe the version to be correct if it is not otherwise shown to be unreliable. It is for the accused, through cross-examination of witnesses or through any other materials, to show that the evidence of the police officer is either unreliable or at least unsafe to be acted upon in a particular case.”
Jul 18, 2010
Krishna Kumar @ Pappu Vs State of UP
"Section 27 is an exception to sections 25 and 26 of the Evidence Act. It is based on the doctrine of confirmation by subsequent (discovered) facts.…sections 100 and 165 CrPC: Do not relate to recovery on pointing out of the accused; and Are not applicable to the discovery under section 27 of the Evidence Act…..it cannot be said, as a matter of law that: The signatures of the accused have to be obtained on the recovery memo; or An endorsement is required that the accused has refused to accept it; and Merely failure to do so, vitiates the recovery. ……No mandatory provision has been brought to our notice that the disclosure memo should be separately prepared. The fact that they are often prepared, and perhaps it is better if they are prepared, does not mean that in case disclosure memo is not prepared then the recovery is unreliable……There is a discrepancy between the quantity of the jewellery mentioned in the FIR and the quantity of the jewellery recovered. In the recovered articles, the silver jewellery and Rupees are less but golden jewellery is more. But this is natural rather than unusual.”
Union of India vs. Prafulla Kumar Samal, (1979) 3 SCC 4
Supreme Court observed “( 1) That the Judge while considering the question of framing the charges under Section 227 of the Code has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out.
( 2) Where the materials placed before the Court disclose grave suspicion against the accused which has not been properly explained the Court will be fully justified in framing a charge and proceeding with the trial.
(3) The test to determine a prima facie case would naturally depend upon the facts of each case and it is difficult to lay down a rule of universal application. By and large however if two views are equally possible and the Judge is satisfied that the evidence produced before him while giving rise to some suspicion but not grave suspicion against the accused, he will be fully within his right to discharge the accused.
( 4) That in exercising his jurisdiction under Section 227 of the Code the Judge which under the present Code is a senior and experienced court cannot act merely as a Post Office or a mouthpiece of the prosecution, but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the Court, any basic infirmities appearing in the case and so on. This however does not mean that the Judge should make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial.”
( 2) Where the materials placed before the Court disclose grave suspicion against the accused which has not been properly explained the Court will be fully justified in framing a charge and proceeding with the trial.
(3) The test to determine a prima facie case would naturally depend upon the facts of each case and it is difficult to lay down a rule of universal application. By and large however if two views are equally possible and the Judge is satisfied that the evidence produced before him while giving rise to some suspicion but not grave suspicion against the accused, he will be fully within his right to discharge the accused.
( 4) That in exercising his jurisdiction under Section 227 of the Code the Judge which under the present Code is a senior and experienced court cannot act merely as a Post Office or a mouthpiece of the prosecution, but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the Court, any basic infirmities appearing in the case and so on. This however does not mean that the Judge should make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial.”
Jul 17, 2010
State of Bihar vs. Ramesh Singh (1977) 4 SCC 39
Supreme Court observed “… … Strong suspicion against the accused, if the matter remains in the region of suspicion, cannot take the place of proof of his guilt at the conclusion of the trial. But at the initial stage if there is a strong suspicion which leads the Court to think that there is ground for presuming that the accused has committed an offence then it is not open to the Court to say that there is no sufficient ground for proceeding….it is only for the purpose of deciding prima facie whether the Court should proceed with the trial or not. If the evidence which the Prosecutor proposes to adduce to prove the guilt of the accused even if fully accepted before it is challenged in cross-examination or rebutted by the defence evidence, if any, cannot show that the accused committed the offence, then there will be no sufficient ground for proceeding with the trial. …. ”
P. Vijayan Vs State of Kerala & Anr, Supreme Court in 2010
If two views are possible and one of them gives rise to suspicion only, as distinguished from grave suspicion, the Trial Judge will be empowered to discharge the accused and at this stage he is not to see whether the trial will end in conviction or acquittal. ……..the sufficiency of ground would take within its fold the nature of the evidence recorded by the police or the documents produced before the Court which ex facie disclose that there are suspicious circumstances against the accused so as to frame a charge against him. …….At the time of framing of the charges the probative value of the material on record cannot be gone into, and the material brought on record by the prosecution has to be accepted as true. Before framing a charge the court must apply its judicial mind on the material placed on record and must be satisfied that the commission of offence by the accused was possible. Whether, in fact, the accused committed the offence, can only be decided in the trial.”
Jul 14, 2010
Santosh Kumar Baranwal Vs. State of UP, 2009
Allahabad High Court observed, “It is settled that the evidence of a prosecution witnesses cannot be rejected in totality merely because they have turned hostile or the prosecution has chosen to treat them as hostile and cross-examined them. Their evidence is neither effaced nor washed off from the record. It can be accepted to the extent their testimony is found dependable………There is no direct evidence of any motive. It can only be inferred from the circumstances…….In case anyone in society is depressed or frustrated, then it also reflects upon the society that he lives in. It is the duty of the State to see that such conditions do not exist. The State also has some accountability in this regard……Is it obligatory to impose fine under section 302 IPC or is it discretionary? Fine is Discretionary…….the words 'shall also liable to fine' in section 302 IPC merely empower the court to impose the fine but does not mandate it. To impose or not to impose is in the discretion of the Court. There is another reason for holding that there is discretion to sentence fine. Section 302 IPC neither prescribes upper limit nor prescribes lower limit. In view of section 63 of the IPC the upper limit is unlimited but it cannot be excessive, it depends on the fact of each case. There is no mention of lower limit of fine under section 302 IPC. It also means that the court may choose to impose nil fine that is no fine at all.”
Hon’ble Court also laid down the guideline for compensation u/s 357 CrPC, “The pecuniary circumstances, means, and capacity of the offender to pay the fine;
The cases where offender has enriched himself.
No one should be permitted to live on the wealth that is gained unconsciously or unjustifiably.
Economic offences are generally visited with heavy fines;
Character and magnitude of the offence; Motive for the offence;
The pecuniary gain likely to have been made by the offender.”
Hon’ble Court also laid down the guideline for compensation u/s 357 CrPC, “The pecuniary circumstances, means, and capacity of the offender to pay the fine;
The cases where offender has enriched himself.
No one should be permitted to live on the wealth that is gained unconsciously or unjustifiably.
Economic offences are generally visited with heavy fines;
Character and magnitude of the offence; Motive for the offence;
The pecuniary gain likely to have been made by the offender.”
Modi's Medical Jurisprudence and Toxicology'
Wounds inflicted by a person on his own body are known as self-inflicted wounds. These simulating homicidal wounds are usually produced to support a false charge of assault or attempted murder against an opponent, to augment the seriousness of the injuries which one has already received during a quarrel
Jul 13, 2010
Economic Transport Organisation v. M/s. Charan Spinning Mills (P) Ltd, 2010 (2) Scale 427
Supreme Court observed about the construction of document “In this context, it is necessary to remember that the nature of examination of a document may differ with reference to the context in which it is examined. If a document is examined to find out whether adequate stamp duty has been paid under the Stamp Act, it will not be necessary to examine whether it is validly executed or whether it is fraudulent or forged. On the other hand, if a document is being examined in a criminal case in the context of whether an offense of forgery has been committed, the question for examination will be whether it is forged or fraudulent, and the issue of stamp duty or registration will be irrelevant. But if the document is sought to be produced and relied upon in a civil suit, in addition to the question whether it is genuine, or forged, the question whether it is compulsorily registrable or not, and the question whether it bears the proper stamp duty, will become relevant. If the document is examined in the context of a dispute between the parties to the document, the nature of examination will be to find out that rights and obligation of one party vis-à-vis the other party. If in a summary proceedings by a consumer against a service provider, the insurer is added as a co-complainant or if the insurer represents the consumer as a power of attorney, there is no need to examine the nature of rights inter-se between the consumer and his insurer.”
Indowind Energy Ltd Vs. Wescare
Supreme Court in 2010 observed, “Each company is a separate and distinct legal entity and the mere fact that two companies have common shareholders or common Board of Directors, will not make the two companies a single entity. Nor will existence of common shareholders or Directors lead to an inference that one company will be bound by the acts of the other…..A contract can be spelt out from correspondence or conduct. But an arbitration agreement is different from a contract. An arbitration agreement can come into existence only in the manner contemplated under section 7. If section 7 says that an arbitration agreement should be in writing, it will not be sufficient for the petitioner in an application under section 11 to show that there existed an oral contract between the parties…..it is not permissible in a proceeding under section 11 to merely hold that a party is prima facie a party to the arbitration agreement and that a party is prima facie bound by it. It is not as if the Chief Justice or his Designate will subsequently be passing any other final decision as to who are the parties to the arbitration agreement.”
Jul 12, 2010
Renusagar Power Co. Ltd. Vs. General Electric Co. AIR 1994 SC 860
Supreme Court observed “7(1)(b)(ii) has been used in a narrower sense and in order to attract the bar of public policy the enforcement of award must invoke something more than the violation of the law of India….policy must necessarily be construed in the sense the doctrine of public policy is applied in the field of private international law. Applying the said criteria it must be held that the enforcement of a foreign award would be refused on the ground that it is contrary to public policy if such enforcement would be contrary to (i) fundamental policy of Indian law; or (ii) the interests of India; or (iii) justice or morality”
Vishnu Dutt Sharma vs. Manju Sharma (2009) 6 SCC 379,
Supreme Court observed: “If we grant divorce on the ground of irretrievable breakdown, then we shall by judicial verdict be adding a clause to Section 13 of the Act to the effect that irretrievable breakdown of the marriage is also a ground for divorce. In our opinion, this can only be done by the legislature and not by the Court. It is for the Parliament to enact or amend the law and not for the Courts.”
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