Oct 27, 2010
S Jagannath Vs UOI, AIR 1997 SC 811
Hon'ble Supreme Court of India observed as under, "we direct all the respondent-States not to permit the setting up of any industry or the construction of any type on the area at least up to 500 metres from the sea water at the maximum High Tide. The abovesaid area i.e. from the High Tide Level up to 500 metres shall be kept free from all construction of any type.”
Oct 26, 2010
UOI Vs Kamath Holiday Resorts (P) Ltd, AIR 1996 SC 1040
The Collector of the Union Territory, Daman, as a step towards promoting tourism leased out a site in the reserved forest area to the respondent for putting up a snack bar and a restaurant to cater to the needs of tourists visiting the forest….Not allowed
Oct 25, 2010
Burrabazar Fireworks Dealers Association Vs Commissioner of police, Calcutta, AIR 1998 Cal 121
Court held that, “Art 19(1) (g) of the Constitution of India does not guarantee the fundamental right to carry on trade or business which creates pollution or which takes away that community’s safety, health and peace. A citizen or people cannot be made a captive listener to hear the tremendous sounds caused by bursting out from noisy fireworks.”
Oct 24, 2010
prosecution witness can not be examined as defence witness
Decided On: 31.03.2006
State of Madhya Pradesh
Vs. Badri Yadav and Anr.
Vs. Badri Yadav and Anr.
JUDGMENT
H.K. Sema, J.
1. This appeal filed by the State of Madhya Pradesh is against the judgment and order of the High Court dated 12.5.2000 passed in Criminal Appeal No. 699 of 1996, whereby the High Court recorded acquittal of respondents-accused herein, by reversing the judgment of the Trial Court convicting the respondent and others under Section 302/34 IPC and sentenced them RI for life and a fine of Rs. 200/- and in default to undergo RI for a period of one month.
2. Briefly stated the facts are as follows:-
On 16.9.1989, the respondents herein were loitering around 'kothi building' where the courts are situated in order to find out the deceased Lal Mohd. They were all sitting in an auto rickshaw which was hired by them. Finally, they succeeded in locating the deceased Lal Mohd. who was sitting in a tempo. While the tempo stopped for permitting a lady to alight from it and proceeded ahead, the accused-respondents obstructed the said tempo and they pulled out the deceased Lal Mohd. from the said tempo and assaulted him with swords and knives causing number of injuries, which resulted in his death. The matter was investigated and after a prima facie case being established the charge was laid before the Additional Sessions Judge. The learned Sessions Judge after threadbare discussion of the evidence of prosecution witnesses including the two eye witnesses PW-8 Mohd.Amin and PW-9 Zakir Ali who later juxtaposed as DW-1 and DW-2, came to the conclusion that an offence punishable under Section 302 read with 34 was found well established against the accused and convicted as aforesaid.
3. Before the Trial Court four accused had faced the trial namely accused Badri Yadav, Raju, Mahesh Bhat and Mohan Jayaswal. Accused Mohan Jayaswal died during the trial. Accused Mahesh Bhat was acquitted by the Trial Court on benefit of doubt. Accused Raju died during the pendency of this appeal and, therefore, appeal qua him stands abated. Now only the respondent-accused Badri Yadav is before us. The High Court by the impugned order relied upon the testimony of DW-1 Mohd. Amin and DW-2 Zakir Ali who were examined as eye witnesses as PW-8 and PW-9 and acquitted the respondents by reversing the well merited judgment of the Trial Court convicting the respondents.
4. The facts of this case illustrate a disquieting feature as to how the High Court has committed a grave miscarriage of justice in recording the acquittal of the respondents. Few dates would suffice. PW-8 Mohd.Amin and P.W.9 Zakir Ali's statements were recorded under Section 164 Cr.P.C. before the Magistrate on 21.9.1989. On 18.12.1990 their statements on oath were recorded before the Trial Court as prosecution witnesses.
5. It appears that PW-8 and PW-9 filed an affidavit on 16.8.1994 that the statements made before the Magistrate by them were under pressure, tutored by police of Madhav Nagar and due to their pressure the statements were recorded. It was further stated that the policemen threatened them that if they did not make statements as tutored by the police they would implicate PW-8 and PW-9 in this case and when the statements were recorded before the Magistrate the policemen were standing outside and therefore the statements were made as tutored by the police and due to threat and coercion. By this affidavit they have completely resiled from their previous statements recorded before the court as prosecution witnesses. They further stated that they did not see any marpeet and who had inflicted injuries. They further denied that they did not see any incident at all nor any person. Though the affidavit appeared to be dated 16.8.1994, it was actually signed by both on 17.8.1994.
6. In the affidavit of Zakir Ali PW-9 dated 17.8.1994 it is also stated that his statement was recorded on 18.12.1990 before the Sessions Judge. The affidavit further stated that the statement recorded on 18.12.1990 was made due to threat and under the pressure of police. It is further stated that the applicant was going for Haj and according to the religious rites, he wanted to bid good-bye to all the sins he had committed. It is further stated that the statements he made before the court of Magistrate and before the Sessions Judge were false. It is unfortunate that the said application was allowed by the Sessions Judge on 9.2.1995 and they were allowed to be examined as defence witnesses juxtaposed as DW-1 and DW-2. The Sessions Judge, however, on examining the credibility of PW-8 and PW-9 juxtaposed as DW-1 and DW- 2 rejected it as not trustworthy, in our view rightly.
7. The Sessions Judge came to a finding that the statements of DW-1 and DW-2 were recorded under Section 164 Cr.P.C. before the Magistrate on 21.9.1989 as PW-8 and PW-9. Thereafter, their statements were recorded before the Sessions Judge on 18.12.1990 and after four years on 17.7.1995 they gave a different version resiling from their previous statements on grounds of threat, coercion and being tutored by the police. It will be noticed that in between 18.12.1990 the day on which their statements were recorded before the Sessions Judge as PWs and their statements as defence witnesses which were recorded on 17.7.1995 as DWs, no complaint whatsoever was made by DW-1 and DW-2 to any Court or to any authority that they gave statements on 18.12.1990 due to coercion, threat or being tutored by the police. This itself could have been a sufficient circumstance to disbelieve the subsequent statements as DW-1 and DW-2 as held by the Sessions Judge, in our view, rightly.
8. The High Court, while reversing the order of conviction recorded by the Sessions Judge gave the following reasons in support of the reversal in paragraph 16 as under: -
This case has focused a very strange phenomenon before us. The witnesses were examined initially as prosecution witnesses. The trial was not completed within short span of time. It lingered on for about five years. After lapse of five years these witnesses stated in favour of the accused and against the prosecution. The question arises whether the prosecutor in charge of the prosecution was vigilant enough to see that all prosecution witnesses are examined within reasonable time span, so as to see that the case is completed within that time span. The question arises whether the court was vigilant enough to see that the trial is conducted day by day system. The both answers would be negative.
Unfortunately, the Sessions Trial was not conducted day by day. The prosecution witnesses were not produced by making them to remain present for day by day trial. The adjournments were sought by defence and they were also granted liberally. All this resulted in strange situation where those two witnesses stated something as prosecution witnesses and after lapse of sufficient time, they appeared before the court and gave the evidence as defence as witnesses and stated against the prosecution.
9. In our view, the reasoning recorded by the High Court, itself would have been sufficient to reject the testimony of DW-1 and DW-2. However, having said so the High Court reversed the order of conviction and recorded the order of acquittal, which is perverse. In this case the application under Section 311 Cr.P.C. for recalling PW-8 and PW-9 and re-examining them was rejected by the Court on 2.9.1994. Therefore, the question with regard to recalling PW-8 and PW-9 and re- examining them stood closed. There is no provision in the Code of Criminal Procedure that by filing affidavit the witnesses examined as PWs (PW-8 and PW-9 in this case) could be juxtaposed as DW-1 and DW2- and be examined as defence witnesses on behalf of the accused.
10. Mr. A.T.M. Rangaramanujam, learned senior counsel for the respondent, however, contended that the accused is entitled to enter upon defence and adduce evidence in support of his case as provided under Section 233 Cr.P.C. particularly Sub-Section (3) of Section 233. Sub-Section (3) of Section 233 reads: -
(3) If the accused applies for the issue of any process for compelling the attendance of any witness or the production of any document or thing, the Judge shall issue such process unless he considers, for reasons to be recorded, that such application should be refused on the ground that it is made for the purpose of vexation or delay or for defeating the ends of justice.
11. Section 233 itself deals with entering upon defence by the accused. The application for recalling and re-examining persons already examined, as provided under Section 311 Cr.P.C., was already rejected. The power to summon any person as a witness or recall and re-examine any person already examined is the discretionary power of the Court in case such evidence appears to it to be essential for a just decision of the case. Under Section 233 Cr.P.C. the accused can enter upon defence and he can apply for the issue of any process for compelling the attendance of any witness in his defence. The provisions of Sub-section (3) of Section 233 cannot be understood as compelling the attendance of any prosecution witness examined, cross-examined and discharged to be juxtaposed as DWs. In the present case PW-8 and PW-9 were juxtaposed as DW-1 and DW-2. This situation is not one what was contemplated by Sub-section 3 of Section 233 Cr.P.C.
12. When such frivolous and vexatious petitions are filed, a Judge is not powerless. He should have used his discretionary power and should have refused relief on the ground that it is made for the purpose of vexation or delay or for defeating the ends of justice. In the present case, the witnesses were examined by the prosecution as eyewitnesses on 18.12.1990, cross-examined and discharged. Thereafter, an application under Section 311 Cr.P.C. was rejected. They were recalled purportedly in exercise of power under Sub-section (3) of Section 233 Cr.P.C. and examined as DW-1 and DW-2 on behalf of the accused on 17.7.1995. This was clearly for the purpose of defeating the ends of justice, which is not permissible under the law.
13. In the case of Yakub Ismail Bhai Patel v. Gujrat in which one of us Dr. AR. Lakshmanan, J. was the author of the judgment, in somewhat similar case to the facts of the present case it was held that once a witness is examined as a prosecution witness he cannot be allowed to perjure himself by resiling from the testimony given in court on oath by filing affidavit stating that whatever he had deposed before court as PW was not true and was done so at the instance of the police. In that case the evidence of PW-1 was relied upon by the Trial Court and also by the High Court. He was examined by the prosecution as an eyewitness. He also identified the appellants and the co- accused in the Court. After a long lapse of time he filed an affidavit stating that whatever he had stated before the Court was not true and had done so at the instance of the police. In those facts and circumstances this Court in paragraphs 38 and 39 at SCC pp.240-241 held as under: -
38. Significantly this witness, later on filed an affidavit, wherein he had sworn to the fact that whatever he had deposed before Court as PW 1 was not true and it was so done at the instance of the police.
39. The averments in the affidavit are rightly rejected by the High Court and also the Sessions Court. Once the witness is examined as a prosecution witness, he cannot be allowed to perjure himself by resiling from the testimony given in Court on oath. It is pertinent to note that during the intervening period between giving of evidence as PW 1 and filing of affidavit in court later, he was in jail in a narcotic case and that the accused persons were also fellow inmates there.
14. In the present case, both PW-8 and PW-9 are related to the deceased. PW-8 is the elder brother of the deceased and PW-9 is the friend of the deceased. Being the close relative and friend of the deceased there is no rhyme and reason to depose falsely against the accused and allowing the real culprit to escape unpunished. On 21.9.1989, their statements were recorded under Section 164 Cr.P.C. before the Magistrate. On 18.12.1990, their depositions were recorded before the Sessions Judge. In both the statements they have stated that they were eyewitnesses and witnessed the occurrence. Both of them have stated that they saw the accused assaulting the deceased with knives and swords. They were subjected to lengthy cross-examination but nothing could be elicited to discredit the statement-in-chief. Their examination as defence witnesses was recorded on 17.7.1995 when they resiled completely from the previous statements as prosecution witnesses. It, therefore, clearly appears that the subsequent statements as defence witnesses were concocted well an after thought. They were either won over or were under threat or intimidation from the accused. No reasonable person, properly instructed in law, would have acted upon such statements.
15. Another contention of counsel for the respondent is being noted only to be rejected. It is contended that accused Mahesh who suffered disclosure statement was acquitted by the Trial Court on benefit of doubt and, therefore, the same yardstick should have been applied to the case of the respondent herein. The Trial Court acquitted the accused Mahesh by giving him the benefit of doubt because his name does not figure in the F.I.R. One Gopal Yadav was mentioned in the F.I.R. as an accused. Whether the Gopal Yadav mentioned in the F.I.R. was the same Mahesh was not explained by the prosecution and this was the reason for the acquittal of Mahesh. The name of the respondent herein was named in the F.I.R. as one of the assailants and he was also identified by PW-8 and PW-9.
16. Prima facie PW-8 Mohd. Amin and PW-9 Zakir Ali in their subsequent affidavits made a false statement which they believed to be false or did not believe to be true. Hence, they are liable for perjury for giving false evidence punishable under Section 193 IPC. We direct the Vth Additional Sessions Judge, Ujjain
17. In the facts and circumstances aforesaid, the High Court was not justified in reversing the conviction recorded by the Trial Court. The order of the High Court dated 12.5.2000 is accordingly set aside and the order of the Trial Court convicting the respondent under Section 302/34IPC is restored. The appeal is allowed. The respondent is on bail. His bail bond and surety stands cancelled. He is directed to be taken back into custody forthwith to serve out the remaining part of the sentence. Compliance report within one month
M/S Abhilash Textiles Vs The Rajkot Municipal Corp, AIR 1988 Guj 57
Hon'ble Supreme Court of India observed as under, "Is there any right to carry on business or trade in unregulated manner and cause nuisance to the public and also become a health hazard to the society at large? If no, can the petitioners claim any right to be heard before they are asked to discontinue or prevent the nuisance?....
Article 19(1)(g) of the Constitution confers right upon every citizen to practice any profession or to carry on any occupation, trade or business. But this fundamental right is subject to reasonable restrictions which may be placed in the interest of the general public as provided for in sub-clause (6) of Art. 19 itself. No one has a right to carry on business so as to cause nuisance to the society….
The petitioners cannot assert their right, much less fundamental right, to carry on business without any regard to the fundamental duty. In a complex society, in which we live today, no one can claim absolute freedom without incurring any obligation whatsoever for the general well being.”
Article 19(1)(g) of the Constitution confers right upon every citizen to practice any profession or to carry on any occupation, trade or business. But this fundamental right is subject to reasonable restrictions which may be placed in the interest of the general public as provided for in sub-clause (6) of Art. 19 itself. No one has a right to carry on business so as to cause nuisance to the society….
The petitioners cannot assert their right, much less fundamental right, to carry on business without any regard to the fundamental duty. In a complex society, in which we live today, no one can claim absolute freedom without incurring any obligation whatsoever for the general well being.”
Oct 23, 2010
Forum Prevention of Environment & Sound Pollution Vs UOI, AIR 2005 SC 3136
Hon'ble Supreme Court of India observed as under, "Anyone who wishes to live in peace, comfort and quiet within his house has a right to prevent the noise as pollutant reaching him. No one can claim a right to create noise even in his own premises… Any noise which has the effect of materially interfering with the ordinary comforts of life judged by the standard of a reasonable man is nuisance….
Those who make noise often take shelter behind Article 19(1)A pleading freedom of speech and right to expression. Undoubtedly, the freedom of speech and right to expression are fundamental rights but the rights are not absolute….
While one has a right to speech, others have a right to listen or decline to listen….
Civil law can be divided under two heads (i) The Law of Torts (ii) The General Civil Law. The cases regarding noise have not come before the law courts in large quantity. The reason behind this is that many people in India did not consider noise as a sort of pollution and they are not very much conscious about the evil consequences of noise pollution.”
Court issue direction for fireworks to reduce noise pollution.
Those who make noise often take shelter behind Article 19(1)A pleading freedom of speech and right to expression. Undoubtedly, the freedom of speech and right to expression are fundamental rights but the rights are not absolute….
While one has a right to speech, others have a right to listen or decline to listen….
Civil law can be divided under two heads (i) The Law of Torts (ii) The General Civil Law. The cases regarding noise have not come before the law courts in large quantity. The reason behind this is that many people in India did not consider noise as a sort of pollution and they are not very much conscious about the evil consequences of noise pollution.”
Court issue direction for fireworks to reduce noise pollution.
Oct 22, 2010
Cooverjee B Bharucha Vs Excise Commr, Ajmer, AIR 1954 SC 220
Hon'ble Supreme Court of India observed as under, " The right of every citizen to pursue any lawful trade or business is obviously subject to such reasonable conditions as may be deemed by the governing authority of the country essential to the safety, health, peace, order and morals of the community. Some occupations by the noise made in their pursuit, some by the odours they engender, and some by the dangers accompanying them, require regulations as to the locality in which they may be conducted.”
Oct 21, 2010
Karnataka Industrial Areas Development Board Vs C Kenchappa, AIR 2006 SC 2038
Hon'ble Supreme Court of India observed as under, "In consonance with the principle of 'Sustainable Development', a serious endeavour has been made in the impugned judgment to strike a golden balance between the industrial development and ecological preservation. …
Oct 20, 2010
Mrs Susetha Vs State of Tamil Nadu, AIR 2006 SC 2893
Hon'ble Supreme Court of India observed as under, "The Appellant herein claims herself to be a member of the Okkiam Thoraipakkam ly was lying in disuse. It was in fact an abandoned one. The Panchayat took a decision of constructing a shopping complex for the purpose of user thereof for resettlement of those persons who were displaced due to expansion of a highway project….
Maintenance of wetlands was highlighted by the Calcutta High Court in People united for better living in Calcutta - Public and Anr Vs State of West Bengal, AIR 1993 Cal 215, observing that the wetland acts as a benefactor to the society.”
Maintenance of wetlands was highlighted by the Calcutta High Court in People united for better living in Calcutta - Public and Anr Vs State of West Bengal, AIR 1993 Cal 215, observing that the wetland acts as a benefactor to the society.”
Oct 19, 2010
T B Ibrahim Vs The Regional Transport Authority, AIR 1953 SC 79
Hon'ble Supreme Court of India observed as under, "There is no fundamental right in a citizen to carry on business wherever he chooses and his right must be subject to any reasonable restriction imposed by the executive authority in the interest of public convenience.”
Oct 18, 2010
Rural Litigation and Entitlement Kendra Vs State of U P (1985) 2 SCC 431
Hon'ble Supreme Court of India observed as under, "conflict between development and conservation and serves to emphasise the need for reconciling the two in the larger interest of the country.”
Oct 17, 2010
Sachidanand Pandey Vs State of west Bengal, AIR 1987 SC 1109
Hon'ble Supreme Court of India observed as under, "On a consideration of all the facts and circumstances of the case, we are satisfied that the Government of West Bengal acted perfectly bona fide in granting the lease of Begumbari land to the Taj Group of Hotels for the construction of a Five Star hotel in Calcutta.”
Oct 16, 2010
Orissa State (Prevention & Control of Pollution Board Vs M/S Orient Paper Mills, AIR 2003 SC 1966
Hon'ble Supreme Court of India observed as under, " The Constitution could not have intended that all administration in the autonomous districts should come to a stop till the Governor made regulations under paragraph 19(1)(b) or till district Council passed laws under para 3(1)(g) … Doubtless when regulations are made….. The administrative authorities would be bound to follow the regulations so made or the laws so passed….
Non-framing of Rules does not curtail the power of the State Government to declare any area as air pollution control area by means of a notification published in the official gazette.”
Non-framing of Rules does not curtail the power of the State Government to declare any area as air pollution control area by means of a notification published in the official gazette.”
Oct 15, 2010
State of M P Vs Kedia Leather & Liquor Ltd, AIR 2003 SC 3236
Hon'ble Supreme Court of India observed as under, " SDM of the area concerned served orders in terms of Section 133 of the Code directing the respondents who owned industrial units to close their industries on the allegation that serious pollution was created by discharge of effluent from their respective factories and thereby a public nuisance was caused. The preliminary issues and the proceedings initiated by the SDM were questioned by the respondents….
The object and purpose behind Section 133 of the Code is essentially to prevent public nuisance and involves a sense of urgency in the sense that if the Magistrate fails to take recourse immediately irreparable damage would be done to the public….
some times there is a confusion between Section 133 and Section 144 of the Code. While the latter is more general provision the former is more specific. While the order under the former is conditional, the order under the latter is absolute. The proceedings are more in the nature of civil proceedings than criminal proceedings. One significant factor to be noticed is that person against whom action is taken is not an accused within the meaning of Section 133 of the Code. He can give evidence on his own behalf and may be examined on oath. Proceedings are not the proceedings in respect of offences….
Right to live with human dignity becomes illusory in the absence of humane and healthy environment….
There is presumption against a repeal by implication; and the reason of this rule is based on the theory that the Legislature while enacting a law has a complete knowledge of the existing laws on the same subject matter, and therefore, when it does not provide a repealing provision, the intention is clearly not to repeal the existing legislation. When the new Act contains a repealing section mentioning the Acts which it expressly repeals, the presumption against implied repeal of other laws is further strengthened on the principle expressio unius (persone vel rei) est exclusio alterius. (The express intention of one person or thing is the exclusion of another)….
The necessary questions to be asked are:
(1) Whether there is direct conflict between the two provisions.
(2) Whether the Legislature intended to lay down an exhaustive Code in respect of the subject-matter replacing the earlier law;
(3) Whether the two laws occupy the same field. The doctrine of implied repeal is based on the theory that the Legislature, which is presumed to know the existing law, did not intend to create any confusion by retaining conflicting provisions and, therefore, when the court applies the doctrine, it does nothing more than giving effect to the intention of the Legislature by examining the scope and the object of the two enactments and by a comparison of their provisions….
The Court leans against implying a repeal, “unless two Acts are so plainly repugnant to each other that effect cannot be given to both at the same time”
The object and purpose behind Section 133 of the Code is essentially to prevent public nuisance and involves a sense of urgency in the sense that if the Magistrate fails to take recourse immediately irreparable damage would be done to the public….
some times there is a confusion between Section 133 and Section 144 of the Code. While the latter is more general provision the former is more specific. While the order under the former is conditional, the order under the latter is absolute. The proceedings are more in the nature of civil proceedings than criminal proceedings. One significant factor to be noticed is that person against whom action is taken is not an accused within the meaning of Section 133 of the Code. He can give evidence on his own behalf and may be examined on oath. Proceedings are not the proceedings in respect of offences….
Right to live with human dignity becomes illusory in the absence of humane and healthy environment….
There is presumption against a repeal by implication; and the reason of this rule is based on the theory that the Legislature while enacting a law has a complete knowledge of the existing laws on the same subject matter, and therefore, when it does not provide a repealing provision, the intention is clearly not to repeal the existing legislation. When the new Act contains a repealing section mentioning the Acts which it expressly repeals, the presumption against implied repeal of other laws is further strengthened on the principle expressio unius (persone vel rei) est exclusio alterius. (The express intention of one person or thing is the exclusion of another)….
The necessary questions to be asked are:
(1) Whether there is direct conflict between the two provisions.
(2) Whether the Legislature intended to lay down an exhaustive Code in respect of the subject-matter replacing the earlier law;
(3) Whether the two laws occupy the same field. The doctrine of implied repeal is based on the theory that the Legislature, which is presumed to know the existing law, did not intend to create any confusion by retaining conflicting provisions and, therefore, when the court applies the doctrine, it does nothing more than giving effect to the intention of the Legislature by examining the scope and the object of the two enactments and by a comparison of their provisions….
The Court leans against implying a repeal, “unless two Acts are so plainly repugnant to each other that effect cannot be given to both at the same time”
Oct 14, 2010
Pollution Murli S Deora Vs UOI, AIR 2002 SC 40
Hon'ble Supreme Court of India observed as under, “why should a non-smoker be afflicted by various diseases, including lung cancer or of heart, only because he is required to go to public places? Is it not indirectly depriving of his life without any process of law? The answer is obviously — “yes”….
Realising the gravity of the situation and considering the adverse effect of smoking on smokers and passive smokers, we direct and prohibit smoking in public places.”
Realising the gravity of the situation and considering the adverse effect of smoking on smokers and passive smokers, we direct and prohibit smoking in public places.”
Oct 13, 2010
Municipal Council, Ratlam Vs Vardichand, (1980) 4 SCC 162
Hon'ble Supreme Court of India observed as under, "The key question we have to answer is whether by affirmative action a court can compel a statutory body to carry out its duty to the community by constructing sanitation facilities ….
Had the municipal council and its executive officers spent half of this litigative zeal on cleaning up the street and constructing the drains by rousing the people’s sramdan resources and laying out the city’s limited financial resources, the people’s needs might have been largely met long ago….
So the guns of Section 133 go into action wherever there is public nuisance. The public power of the magistrate under the Code is a public duty to the members of the public who are victims of the nuisance, and so he shall exercise it when the jurisdictional facts are present as here. “All power is a trust - that we are accountable for its exercise - that, from the people, and for the people, all springs, and all must exist.” Discretion becomes a duty when the beneficiary brings home the circumstances for its benign exercise….
plea is not that the facts are wrong but that the law is not right because the municipal funds being insufficient it cannot carry out the duties under Section 123 of the Act….
under Part III of the Constitution have to be respected by the State regardless of budgetary provision. Likewise, Section 123 of the Act has no saving clause when the municipal council is penniless….
Public nuisance, because of pollutants being discharged by big factories to the detriment of the poorer sections, is a challenge to the social justice component of the rule of law. Likewise, the grievous failure of local authorities to provide the basic amenity of public conveniences drives the miserable slum-dwellers to ease in the streets, on the sly for a time, and openly thereafter, because under Nature’s pressure bashfulness becomes a luxury and dignity a difficult art. A responsible municipal council constituted for the precise purpose of preserving public health and providing better finances cannot run away from its principal duty by pleading financial inability. Decency and dignity are non-negotiable facets of human rights….
providing drainage systems- not pompous and attractive, but in working condition and sufficient to meet the needs of the people - cannot be evaded if the municipality is to justify its existence….
the court, armed with the provisions of the two Codes and justified by the obligation under Section 123 of the Act, must adventure into positive directions as it has done in the present case. Section 133 CrPC authorise the prescription of a time-limit for carrying out the order….
Magistrate only expected the Municipal Council and the Town. Improvement Trust to evolve a plan and to start planning about it within six months; the learned Magistrate has rightly not fixed the time-limit within which that plan will be completed….
Before us the major endeavour of the Municipal Council was to persuade us to be pragmatic and not to force impracticable orders on it since it had no wherewithal to execute the order. Of course, we agree that law is realistic and not idealistic and what cannot be performed under given circumstances cannot be prescribed as a norm to be carried out. From that angle it may well be that while upholding the order of the magistrate, we may be inclined to tailor the direction to make it workable. But first things first and we cannot consent to a value judgment where people’s health is a low priority. Nevertheless, we are willing to revise the order into a workable formula the implementation of which would be watch-dogged by the court….
We have no hesitation in holding that if these directions are not complied with the subDivisional Magistrate will prosecute the officers responsible. Indeed, this Court will also consider action to punish for contempt in case of report by the sub-Divisional Magistrate of wilful breach by any officer.”
Had the municipal council and its executive officers spent half of this litigative zeal on cleaning up the street and constructing the drains by rousing the people’s sramdan resources and laying out the city’s limited financial resources, the people’s needs might have been largely met long ago….
So the guns of Section 133 go into action wherever there is public nuisance. The public power of the magistrate under the Code is a public duty to the members of the public who are victims of the nuisance, and so he shall exercise it when the jurisdictional facts are present as here. “All power is a trust - that we are accountable for its exercise - that, from the people, and for the people, all springs, and all must exist.” Discretion becomes a duty when the beneficiary brings home the circumstances for its benign exercise….
plea is not that the facts are wrong but that the law is not right because the municipal funds being insufficient it cannot carry out the duties under Section 123 of the Act….
under Part III of the Constitution have to be respected by the State regardless of budgetary provision. Likewise, Section 123 of the Act has no saving clause when the municipal council is penniless….
Public nuisance, because of pollutants being discharged by big factories to the detriment of the poorer sections, is a challenge to the social justice component of the rule of law. Likewise, the grievous failure of local authorities to provide the basic amenity of public conveniences drives the miserable slum-dwellers to ease in the streets, on the sly for a time, and openly thereafter, because under Nature’s pressure bashfulness becomes a luxury and dignity a difficult art. A responsible municipal council constituted for the precise purpose of preserving public health and providing better finances cannot run away from its principal duty by pleading financial inability. Decency and dignity are non-negotiable facets of human rights….
providing drainage systems- not pompous and attractive, but in working condition and sufficient to meet the needs of the people - cannot be evaded if the municipality is to justify its existence….
the court, armed with the provisions of the two Codes and justified by the obligation under Section 123 of the Act, must adventure into positive directions as it has done in the present case. Section 133 CrPC authorise the prescription of a time-limit for carrying out the order….
Magistrate only expected the Municipal Council and the Town. Improvement Trust to evolve a plan and to start planning about it within six months; the learned Magistrate has rightly not fixed the time-limit within which that plan will be completed….
Before us the major endeavour of the Municipal Council was to persuade us to be pragmatic and not to force impracticable orders on it since it had no wherewithal to execute the order. Of course, we agree that law is realistic and not idealistic and what cannot be performed under given circumstances cannot be prescribed as a norm to be carried out. From that angle it may well be that while upholding the order of the magistrate, we may be inclined to tailor the direction to make it workable. But first things first and we cannot consent to a value judgment where people’s health is a low priority. Nevertheless, we are willing to revise the order into a workable formula the implementation of which would be watch-dogged by the court….
We have no hesitation in holding that if these directions are not complied with the subDivisional Magistrate will prosecute the officers responsible. Indeed, this Court will also consider action to punish for contempt in case of report by the sub-Divisional Magistrate of wilful breach by any officer.”
Oct 12, 2010
Forum Prevention of Environment & Sound Pollution Vs UOI, AIR 2006 SC 348
Hon'ble Supreme Court of India observed as under, "Restrictions on the use of loud speakers…. No religion ever says to force the unwilling to listen to expressions of religious beliefs. In the Bhagavad Gita, Krishna says to Arjuna: This secret gospel of the Gita should never be imparted to a man who lacks penance, nor to him who is wanting in devotion, nor even to him who lends not a willing ear; and in no case to him who finds fault with Me... He who, offering the highest love to Me, preaches the most profound gospel of the Gita among My devotees, shall come to Me alone; there is no doubt about it….
Before parting, we would like to clarify further that we may not be understood as diluting in any manner our holding in Noise Pollution. We are also not granting any exemption or relaxation in favour of anyone by our verdict.”
Before parting, we would like to clarify further that we may not be understood as diluting in any manner our holding in Noise Pollution. We are also not granting any exemption or relaxation in favour of anyone by our verdict.”
Oct 11, 2010
Goa Foundation, Goa Vs Diksha Holdings Pvt Ltd, AIR 2001 SC 184
Hon'ble Supreme Court of India observed, “It was also contended before the High Court that there exist large number of sand dunes and permitting the respondent to have the hotel complex on the plot of land will ultimately lead to irreversible ecological damage of the coastal area, and, therefore, the Court should prevent such construction.”
Narmda Bachao Andolan Vs UOI AIR 2000 SC 3751
Hon'ble Supreme Court of India observed, “The “precautionary principle” and the corresponding burden of proof on the person who wants to change the status quo will ordinarily apply in a case of polluting or other project or industry where the extent of damage likely to be inflicted is not known….
Water is one element without which life cannot sustain. Therefore, it is to be regarded as one of the primary duties of the Government to ensure availability of water to the people….
The courts, in the exercise of their jurisdiction, will not transgress into the field of policy decision….
Just because a petition is termed as a PIL does not mean that ordinary principles applicable to litigation will not apply. Laches is one of them…
Public interest litigation should not be allowed to degenerate to becoming publicity interest litigation or private inquisitiveness litigation….
If a considered policy decision has been taken, which is not in conflict with any law or is not mala fide, it will not be in public interest to require the court to go into and investigate those areas which are the function of the executive….
A hard decision need not necessarily be a bad decision….
Environmental concern has not only to be of the area which is going to be submerged but also its surrounding area. The impact on environment should be seen in relation to the project as a whole. While an area of land will submerge but the construction of the dam will result in multifold improvement in the environment of the areas where the canal waters will reach.”
Water is one element without which life cannot sustain. Therefore, it is to be regarded as one of the primary duties of the Government to ensure availability of water to the people….
The courts, in the exercise of their jurisdiction, will not transgress into the field of policy decision….
Just because a petition is termed as a PIL does not mean that ordinary principles applicable to litigation will not apply. Laches is one of them…
Public interest litigation should not be allowed to degenerate to becoming publicity interest litigation or private inquisitiveness litigation….
If a considered policy decision has been taken, which is not in conflict with any law or is not mala fide, it will not be in public interest to require the court to go into and investigate those areas which are the function of the executive….
A hard decision need not necessarily be a bad decision….
Environmental concern has not only to be of the area which is going to be submerged but also its surrounding area. The impact on environment should be seen in relation to the project as a whole. While an area of land will submerge but the construction of the dam will result in multifold improvement in the environment of the areas where the canal waters will reach.”
Oct 10, 2010
Vellore Citizens Welfare Forum Vs UOI, AIR 1996 SC 2715
Hon'ble Supreme Court of India observed, “the tanneries are discharging untreated effluent into agricultural fields, roadsides, waterways and open lands….The traditional concept that development and ecology are opposed to each other is no longer acceptable. “Sustainable Development” is the answer….
We are, however, of the view that “The Precautionary Principle” and “The Polluter Pays Principle” are essential features of “Sustainable Development”. The “Precautionary Principle” - in the context of the municipal law - means:
(i) Environmental measures - by the State Government and the statutory authorities - must anticipate, prevent and attack the causes of environmental degradation.
(ii) Where there are threats of serious and irreversible damage, lack of scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation.
(iii) The “onus of proof” is on the actor or the developer/industrialist to show that his action is environmentally benign….
“Polluter Pays Principle” as interpreted by this Court means that the absolute liability for harm to the environment extends not only to compensate the victims of pollution but also the cost of restoring the environmental degradation…
Even otherwise once these principles are accepted as part of the Customary International Law there would be no difficulty in accepting them as part of the domestic law. It is almost an accepted proposition of law that the rules of Customary International Law there would be no difficulty in accepting them as part of the domestic law. It is almost an accepted proposition of law that the rules of Customary International Law which are not contrary to the municipal law shall be deemed to have been incorporated in the domestic law and shall be followed by the courts of law.”
We are, however, of the view that “The Precautionary Principle” and “The Polluter Pays Principle” are essential features of “Sustainable Development”. The “Precautionary Principle” - in the context of the municipal law - means:
(i) Environmental measures - by the State Government and the statutory authorities - must anticipate, prevent and attack the causes of environmental degradation.
(ii) Where there are threats of serious and irreversible damage, lack of scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation.
(iii) The “onus of proof” is on the actor or the developer/industrialist to show that his action is environmentally benign….
“Polluter Pays Principle” as interpreted by this Court means that the absolute liability for harm to the environment extends not only to compensate the victims of pollution but also the cost of restoring the environmental degradation…
Even otherwise once these principles are accepted as part of the Customary International Law there would be no difficulty in accepting them as part of the domestic law. It is almost an accepted proposition of law that the rules of Customary International Law there would be no difficulty in accepting them as part of the domestic law. It is almost an accepted proposition of law that the rules of Customary International Law which are not contrary to the municipal law shall be deemed to have been incorporated in the domestic law and shall be followed by the courts of law.”
no need for prosecution to apply for process to the witnesses
State v. K. A. Shariff
1971 CRI. L. J. 226
MYSORE HIGH COURT AIR 1971 MYSORE 60 (V 58 C 16)
Judgement
SANTHOSH, J. :- This appeal filed by the State is directed against the order of acquittal of the two respondents passed by the Judicial Magistrate, First Class, Second Court, Bijapur, in C. C. No. 1344 of 968. Charges under Sections 392 and 323 of the Indian Penal Code were framed against the respondents by the learned Magistrate and the case was posted for evidence. On 27-5-1969 as there were no witnesses present in the court on behalf of the prosecution, the learned Magistrate acquitted the respondents under Section 251-A(11) of the Code of Criminal Procedure, and it is this order of acquittal that is challenged by the State in this appeal.
2. The learned State Public Prosecutor appearing on behalf of the appellant, has contended that the said order of acquittal passed by the learned Magistrate is illegal. On 27-5-1969 as the Assistant Public Prosecutor was not well, and adjournment was asked on behalf of the prosecution which was not unreasonable and that the learned Magistrate was not justified in acquitting the respondents merely on the ground that no prosecution witnesses were present in Court. The learned Magistrate had no power to acquit the respondents under Section 251-A(11) of the Code of Criminal Procedure unless he records a finding that the respondents accused who were charged with the serious offence of robbery, were not guilty of the charge. He therefore argues that the impugned order of acquittal is not in accordance with law and deserves to be set aside.
3. The order-sheet in the case shows that on 24-2-1969 charges were framed against the respondents-accused and the case was posted for evidence to 11-3-1969. On 11-3-69 as no witnesses were present, the case was again posted for evidence to 10-4-69. On 10-4-1969 as the Magistrate was on leave the case was posted to 23-4-1969; that on 23-4-1969 as the counsel for the accused were absent and no witnesses were present, the case was posted to 27-5-1969. On 27-5-1969 the Head Constable represented that the Assistant Public Prosecutor was not well and the witnesses were not present and the learned Magistrate passed the following order :
"In this case, I do not see any reason to adjourn the case any more as a punishment to the accused for the laches on the part of the prosecution. Hence, I take the prosecution has no evidence to adduce and close the case. The accused are acquitted u/s. 251-A(11), Cr. P.C. and their bail bonds are cancelled."
4. In State of Mysore v. Narasimhegowda, (1964) 2 Mys LJ 241 : (AIR 1965 Mys 167) on which strong reliance is placed by the learned State Public Prosecutor in support of his contention that the learned Magistrate had no power to acquit the respondents without recording evidence under Section 251-A(11) of the Code of Criminal Procedure, Tukol and Chandrashekhar, JJ. held that in a case where the magistrate had framed charges and the case was adjourned for production of the prosecution witnesses and the summons issued to the witnesses had not been returned, the Magistrate could not have passed an order of acquittal under Section 251-A(11), Cr. P.C. without recording evidence and finding the accused to be not guilty. Having issued summons to the witnesses the Magistrate should have taken steps by issuing warrants if necessary to secure the presence of witnesses. Their Lordships observed in para 4 at p. 243 (of Mys LJ) : (Para 4 at p. 169 of AIR) as follows :-
"Sub-Sec. (11) lays down that 'if, in any case under this section in which a charge has been framed, the Magistrate finds the accused not guilty, he shall record an order of acquittal.' The word 'finds' seems to have been used in the sense of 'decides', 'concludes' or 'holds' implying that the finding to be arrived at shall be after consideration of all the evidence adduced by the prosecution, the plea of the accused and the evidence adduced on his behalf if any. This Section occurs in Chapter XXI of the Code which also provides for the procedure for trial of warrant cases 'instituted otherwise than on a police report' and embodies in Section 258(1) provisions identical with those of Sub-Section (11). The Code does not provide for or contemplate on order of acquittal being recorded merely on the ground that the prosecution or the complainant had failed to produce evidence on the date fixed by the Magistrate. We do not desire to express any opinion in the present case on the question whether the Magistrate cannot at all record an order of acquittal under any circumstance where the prosecution or the complainant persistently and unreasonably fails in his obligation to keep the witnesses present or secure their attendance."
In para 5 their Lordships also observed as follows :
"In warrant cases where the law requires the State to undertake the burden of prosecuting the offenders in public interest to ensure law and order, the Court also has its responsibility to see that justice is done by a fair and speedy trial. Passing orders of discharge or acquittal without just and sufficient grounds would be contrary to law and against public interest."
Mr. Swamy the learned counsel appearing on behalf of the respondents-accused, has relied on a decision of a single Judge of this Court reported in Basappa v. Kalappa, (1966) 2 Mys LJ 528 in which Honniah, J. held thus :
"Before the amendment Act of 1955 the Magistrate had a duty to ascertain the names of the prosecution witnesses and summon them, but there appears to be no analogous provision in S.251A. Under Sub-Section (7) of Section 251A the Magistrate is to take such evidence as is produced before him in support of the prosecution. If for one reason or the other, the prosecution fails to produce such evidence, the only alternative left to the Magistrate would be to act under Sub-Section (11), to make an order holding that the accused are not guilty as the prosecution has failed to produce any evidence in support of the charge and then record an order of acquittal."
The Bench decision of this Court (1964) 2 Mys LJ 241 : (AIR 1965 Mys 167) referred to earlier, was not brought to His Lordship's notice. Further in the said case the prosecutor had undertaken to produce the witnesses on the adjourned hearing. The acquittal was also not challenged by the State but by the complainant only.
It is contended by Mr. Swamy that in the instant case, no summons to the witnesses had been taken by the prosecution and the prosecution undertook to produce the witnesses. As the prosecution have not produced any witness in support of their case, the learned Magistrate, it is argued, was perfectly justified in acquitting the respondents-accused under Sub-Section (11) of Section 251A.
5. There is no force in the said contention of Mr. Swamy. In the charge-sheet filed by the Police, there was a specific prayer for issue of summons to the witnesses cited in the charge-sheet. In the order sheet of the case, it is nowhere stated that the prosecution undertook to produce the witnesses. In a case like this where the prosecution has not undertaken to produce the witnesses and where they have made a specific prayer in the charge-sheet to issue summons to the witnesses mentioned therein, it is the duty of the Court to issue summons to those witnesses and insist on their attendance. If the witnesses do not come to court in spite, of the summons, it is open to the Court to issue a warrant and see that the witnesses appear before the Court.
We may also point out that under sub-clause (2) of Section 207A of the Code of Criminal Procedure it is the duty of the officer conducting the prosecution to apply to the Magistrate to issue process to compel the attendance of any witness. Section 208(3) of the said Code also lays down that in proceedings instituted otherwise than on police reports, it is the duty of the complainant or the officer conducting the prosecution or the accused to apply to the Magistrate to issue process to compel the attendance of any witness. There is no such obligation cast, under Section 251-A(7) of the Cr. P.C. on the prosecution to apply for process to the witnesses. There is, therefore, no force in the contention advanced by Mr. Swamy that it is the duty of the prosecution to apply for summons to the witnesses they proposed to examine in the case.
6. It is also clear from the wordings of sub-clause (11) of Section 251-A that if in any case under this Section in which a charge has been framed the Magistrate finds the accused not guilty, he shall record an order of acquittal. As has been pointed by Their Lordships in (1964) 2 Mys LJ 241 : (AIR 1965 SC 167) to which we have already referred, the word 'finds' in sub-clause (11) of this Section is used in the sense 'decides' implying that the finding to be arrived at shall be after consideration of the evidence adduced by the prosecution, the plea of the accused and the evidence adduced on his behalf if any, and the Code does not provide for or contemplate an order of acquittal being recorded merely on the ground that the prosecution failed to produce the witnesses on the date fixed by the Magistrate.
The words used in sub-clause (11) are 'finds the accused not guilty' and 'record an order of acquittal'. If the legislature wanted merely that the accused should be acquitted, it could have simply used the words 'pass an order of acquittal'. There was no need for the legislature to use the specific words 'finds the accused not guilty'. Finding the accused not guilty implies that the Court has applied its mind to the merits of the case after recording evidence and then only found him not guilty. We may also point out that the policy of law seems to be that in serious cases the accused should not be acquitted merely because of laches on the part of the prosecution. In summons cases instituted on complaint under Section 247 of the Cr. P.C. the Court is competent to acquit the accused merely because of the non-appearance of the complainant. Under Section 249 of the Cr. P.C. in any case instituted otherwise than upon a complaint, the Magistrate may, for reasons to be recorded by him, stop the proceedings at any stage without pronouncing any judgement either of acquittal or conviction and may thereupon release the accused. Power is given to Court to stop proceedings for good reasons even in a case instituted otherwise than on a complaint.
Some Courts have taken the view that Section 249 applies only to summons cases as it is found in Chapter XX dealing with trial of summons cases. But the words used in the said Section are very wide and it says 'in any case' instituted otherwise than upon a complaint the Court for reasons to be recorded by it may stop the proceedings. It may also be mentioned that the very next Section 250, though it appears in Chapter XX dealing with trial of summons cases, refers to compensation to be awarded for frivolous accusations both in summons and warrant cases.
Referring to this Section 439 Cr. P.C. the learned author Sohoni in his Code of Criminal Procedure, 1966 Edition observes that "The Section though occurring in Chapter XX seems to be applicable to warrant cases also." All that we are interested in pointing out here is, that so far as Police charge-Sheets are concerned, there is no provision in Chapter XXI dealing with trial of warrant cases, for the acquittal of the accused merely on the ground of absence of the prosecutor or non-appearance of his witnesses. Section 259 is the only Section in the said Chapter which states that when the proceedings have been instituted upon complaint and on the day fixed for hearing the complainant is absent and the offence may be lawfully compounded or is not a cognizable offence, the Magistrate may, in his discretion at any time before the charge is framed, discharge the accused. It is needless to point out that Sec. 259 does not apply to cases instituted on police charge-sheets.
7. Apart from the question of law, we are of the opinion even on merits, the learned Magistrate was not justified in passing the impugned order. The order sheet shows that it was represented to him that the Assistant Public Prosecutor was ill on 27-5-69 the day on which he acquitted the accused. The order sheet further discloses that later in the day the Head Constable filed an application for issue of attendance certificates to five witnesses who are stated to have been present. The charge against the respondents was of a serious one viz. robbery. We have already pointed out that the order sheet does not disclose that the prosecution at any time undertook to produce any witnesses. We are, therefore, clearly of opinion that the learned Magistrate was not justified in passing the impugned order in the instant case. Disposal of cases in this fashion is not desirable.
8. For the reasons mentioned above, we allow this appeal and set aside the order of acquittal of the respondents passed by the learned Magistrate and we remand the case for a fresh disposal in accordance with law. We direct that the case should be disposed of expeditiously.
Appeal allowed.
1971 CRI. L. J. 226
MYSORE HIGH COURT AIR 1971 MYSORE 60 (V 58 C 16)
Judgement
SANTHOSH, J. :- This appeal filed by the State is directed against the order of acquittal of the two respondents passed by the Judicial Magistrate, First Class, Second Court, Bijapur, in C. C. No. 1344 of 968. Charges under Sections 392 and 323 of the Indian Penal Code were framed against the respondents by the learned Magistrate and the case was posted for evidence. On 27-5-1969 as there were no witnesses present in the court on behalf of the prosecution, the learned Magistrate acquitted the respondents under Section 251-A(11) of the Code of Criminal Procedure, and it is this order of acquittal that is challenged by the State in this appeal.
2. The learned State Public Prosecutor appearing on behalf of the appellant, has contended that the said order of acquittal passed by the learned Magistrate is illegal. On 27-5-1969 as the Assistant Public Prosecutor was not well, and adjournment was asked on behalf of the prosecution which was not unreasonable and that the learned Magistrate was not justified in acquitting the respondents merely on the ground that no prosecution witnesses were present in Court. The learned Magistrate had no power to acquit the respondents under Section 251-A(11) of the Code of Criminal Procedure unless he records a finding that the respondents accused who were charged with the serious offence of robbery, were not guilty of the charge. He therefore argues that the impugned order of acquittal is not in accordance with law and deserves to be set aside.
3. The order-sheet in the case shows that on 24-2-1969 charges were framed against the respondents-accused and the case was posted for evidence to 11-3-1969. On 11-3-69 as no witnesses were present, the case was again posted for evidence to 10-4-69. On 10-4-1969 as the Magistrate was on leave the case was posted to 23-4-1969; that on 23-4-1969 as the counsel for the accused were absent and no witnesses were present, the case was posted to 27-5-1969. On 27-5-1969 the Head Constable represented that the Assistant Public Prosecutor was not well and the witnesses were not present and the learned Magistrate passed the following order :
"In this case, I do not see any reason to adjourn the case any more as a punishment to the accused for the laches on the part of the prosecution. Hence, I take the prosecution has no evidence to adduce and close the case. The accused are acquitted u/s. 251-A(11), Cr. P.C. and their bail bonds are cancelled."
4. In State of Mysore v. Narasimhegowda, (1964) 2 Mys LJ 241 : (AIR 1965 Mys 167) on which strong reliance is placed by the learned State Public Prosecutor in support of his contention that the learned Magistrate had no power to acquit the respondents without recording evidence under Section 251-A(11) of the Code of Criminal Procedure, Tukol and Chandrashekhar, JJ. held that in a case where the magistrate had framed charges and the case was adjourned for production of the prosecution witnesses and the summons issued to the witnesses had not been returned, the Magistrate could not have passed an order of acquittal under Section 251-A(11), Cr. P.C. without recording evidence and finding the accused to be not guilty. Having issued summons to the witnesses the Magistrate should have taken steps by issuing warrants if necessary to secure the presence of witnesses. Their Lordships observed in para 4 at p. 243 (of Mys LJ) : (Para 4 at p. 169 of AIR) as follows :-
"Sub-Sec. (11) lays down that 'if, in any case under this section in which a charge has been framed, the Magistrate finds the accused not guilty, he shall record an order of acquittal.' The word 'finds' seems to have been used in the sense of 'decides', 'concludes' or 'holds' implying that the finding to be arrived at shall be after consideration of all the evidence adduced by the prosecution, the plea of the accused and the evidence adduced on his behalf if any. This Section occurs in Chapter XXI of the Code which also provides for the procedure for trial of warrant cases 'instituted otherwise than on a police report' and embodies in Section 258(1) provisions identical with those of Sub-Section (11). The Code does not provide for or contemplate on order of acquittal being recorded merely on the ground that the prosecution or the complainant had failed to produce evidence on the date fixed by the Magistrate. We do not desire to express any opinion in the present case on the question whether the Magistrate cannot at all record an order of acquittal under any circumstance where the prosecution or the complainant persistently and unreasonably fails in his obligation to keep the witnesses present or secure their attendance."
In para 5 their Lordships also observed as follows :
"In warrant cases where the law requires the State to undertake the burden of prosecuting the offenders in public interest to ensure law and order, the Court also has its responsibility to see that justice is done by a fair and speedy trial. Passing orders of discharge or acquittal without just and sufficient grounds would be contrary to law and against public interest."
Mr. Swamy the learned counsel appearing on behalf of the respondents-accused, has relied on a decision of a single Judge of this Court reported in Basappa v. Kalappa, (1966) 2 Mys LJ 528 in which Honniah, J. held thus :
"Before the amendment Act of 1955 the Magistrate had a duty to ascertain the names of the prosecution witnesses and summon them, but there appears to be no analogous provision in S.251A. Under Sub-Section (7) of Section 251A the Magistrate is to take such evidence as is produced before him in support of the prosecution. If for one reason or the other, the prosecution fails to produce such evidence, the only alternative left to the Magistrate would be to act under Sub-Section (11), to make an order holding that the accused are not guilty as the prosecution has failed to produce any evidence in support of the charge and then record an order of acquittal."
The Bench decision of this Court (1964) 2 Mys LJ 241 : (AIR 1965 Mys 167) referred to earlier, was not brought to His Lordship's notice. Further in the said case the prosecutor had undertaken to produce the witnesses on the adjourned hearing. The acquittal was also not challenged by the State but by the complainant only.
It is contended by Mr. Swamy that in the instant case, no summons to the witnesses had been taken by the prosecution and the prosecution undertook to produce the witnesses. As the prosecution have not produced any witness in support of their case, the learned Magistrate, it is argued, was perfectly justified in acquitting the respondents-accused under Sub-Section (11) of Section 251A.
5. There is no force in the said contention of Mr. Swamy. In the charge-sheet filed by the Police, there was a specific prayer for issue of summons to the witnesses cited in the charge-sheet. In the order sheet of the case, it is nowhere stated that the prosecution undertook to produce the witnesses. In a case like this where the prosecution has not undertaken to produce the witnesses and where they have made a specific prayer in the charge-sheet to issue summons to the witnesses mentioned therein, it is the duty of the Court to issue summons to those witnesses and insist on their attendance. If the witnesses do not come to court in spite, of the summons, it is open to the Court to issue a warrant and see that the witnesses appear before the Court.
We may also point out that under sub-clause (2) of Section 207A of the Code of Criminal Procedure it is the duty of the officer conducting the prosecution to apply to the Magistrate to issue process to compel the attendance of any witness. Section 208(3) of the said Code also lays down that in proceedings instituted otherwise than on police reports, it is the duty of the complainant or the officer conducting the prosecution or the accused to apply to the Magistrate to issue process to compel the attendance of any witness. There is no such obligation cast, under Section 251-A(7) of the Cr. P.C. on the prosecution to apply for process to the witnesses. There is, therefore, no force in the contention advanced by Mr. Swamy that it is the duty of the prosecution to apply for summons to the witnesses they proposed to examine in the case.
6. It is also clear from the wordings of sub-clause (11) of Section 251-A that if in any case under this Section in which a charge has been framed the Magistrate finds the accused not guilty, he shall record an order of acquittal. As has been pointed by Their Lordships in (1964) 2 Mys LJ 241 : (AIR 1965 SC 167) to which we have already referred, the word 'finds' in sub-clause (11) of this Section is used in the sense 'decides' implying that the finding to be arrived at shall be after consideration of the evidence adduced by the prosecution, the plea of the accused and the evidence adduced on his behalf if any, and the Code does not provide for or contemplate an order of acquittal being recorded merely on the ground that the prosecution failed to produce the witnesses on the date fixed by the Magistrate.
The words used in sub-clause (11) are 'finds the accused not guilty' and 'record an order of acquittal'. If the legislature wanted merely that the accused should be acquitted, it could have simply used the words 'pass an order of acquittal'. There was no need for the legislature to use the specific words 'finds the accused not guilty'. Finding the accused not guilty implies that the Court has applied its mind to the merits of the case after recording evidence and then only found him not guilty. We may also point out that the policy of law seems to be that in serious cases the accused should not be acquitted merely because of laches on the part of the prosecution. In summons cases instituted on complaint under Section 247 of the Cr. P.C. the Court is competent to acquit the accused merely because of the non-appearance of the complainant. Under Section 249 of the Cr. P.C. in any case instituted otherwise than upon a complaint, the Magistrate may, for reasons to be recorded by him, stop the proceedings at any stage without pronouncing any judgement either of acquittal or conviction and may thereupon release the accused. Power is given to Court to stop proceedings for good reasons even in a case instituted otherwise than on a complaint.
Some Courts have taken the view that Section 249 applies only to summons cases as it is found in Chapter XX dealing with trial of summons cases. But the words used in the said Section are very wide and it says 'in any case' instituted otherwise than upon a complaint the Court for reasons to be recorded by it may stop the proceedings. It may also be mentioned that the very next Section 250, though it appears in Chapter XX dealing with trial of summons cases, refers to compensation to be awarded for frivolous accusations both in summons and warrant cases.
Referring to this Section 439 Cr. P.C. the learned author Sohoni in his Code of Criminal Procedure, 1966 Edition observes that "The Section though occurring in Chapter XX seems to be applicable to warrant cases also." All that we are interested in pointing out here is, that so far as Police charge-Sheets are concerned, there is no provision in Chapter XXI dealing with trial of warrant cases, for the acquittal of the accused merely on the ground of absence of the prosecutor or non-appearance of his witnesses. Section 259 is the only Section in the said Chapter which states that when the proceedings have been instituted upon complaint and on the day fixed for hearing the complainant is absent and the offence may be lawfully compounded or is not a cognizable offence, the Magistrate may, in his discretion at any time before the charge is framed, discharge the accused. It is needless to point out that Sec. 259 does not apply to cases instituted on police charge-sheets.
7. Apart from the question of law, we are of the opinion even on merits, the learned Magistrate was not justified in passing the impugned order. The order sheet shows that it was represented to him that the Assistant Public Prosecutor was ill on 27-5-69 the day on which he acquitted the accused. The order sheet further discloses that later in the day the Head Constable filed an application for issue of attendance certificates to five witnesses who are stated to have been present. The charge against the respondents was of a serious one viz. robbery. We have already pointed out that the order sheet does not disclose that the prosecution at any time undertook to produce any witnesses. We are, therefore, clearly of opinion that the learned Magistrate was not justified in passing the impugned order in the instant case. Disposal of cases in this fashion is not desirable.
8. For the reasons mentioned above, we allow this appeal and set aside the order of acquittal of the respondents passed by the learned Magistrate and we remand the case for a fresh disposal in accordance with law. We direct that the case should be disposed of expeditiously.
Appeal allowed.
Oct 9, 2010
State of Maharashtra Vs Himmatbhai Narbheram Rao, AIR 1970 SC 1157
Hon'ble Supreme Court of India observed as under, " “under the Constitution a proper balance is intended to be maintained between the exercise of the right conferred by Art. 19(1)(f) and (g) and the interests of a citizen in the exercise of his right to acquire, hold or dispose of his property or to carry on occupation, trade or business. In striking that balance the danger which may be inherent in permitting unfettered exercise of right in a commodity must of necessity influence the determination of the restrictions which may be placed upon the right of the citizen ‘to the commodity’.”
T N Godavaraman Thirumulkpad Vs UOI, AIR 2005 SC 4256
Hon'ble Supreme Court of India observed, “Natural resources are the assets of entire nation. It is the obligation of all concerned including Union Government and State Governments to conserve and not waste these resources. Article 48A of the Constitution of India requires the State shall endeavour to protect and improve the environment and to safeguard the forest and wild life of the country….
The point in issue is whether before diversion of forest land for non-forest purposes and consequential loss of benefits accruing from the forests should not the user agency of such land be required to compensate for the diversion….
we hold that the natural resources are not ownership of any one State or individual, public at large is its beneficiary and, therefore, the contention of Mr. Venugopal that the amount of NPV shall be made over to the State Government cannot be accepted”
The point in issue is whether before diversion of forest land for non-forest purposes and consequential loss of benefits accruing from the forests should not the user agency of such land be required to compensate for the diversion….
we hold that the natural resources are not ownership of any one State or individual, public at large is its beneficiary and, therefore, the contention of Mr. Venugopal that the amount of NPV shall be made over to the State Government cannot be accepted”
Oct 8, 2010
A P Pollution Control Board Vs Prof M V Nayudu, AIR 1999 SC 812
Hon'ble Supreme Court of India observed, “In Vellore Citizens’Welfare Forum Vs Union of India (1966) 5 SCC 647, a three-Judge Bench of this Court referred to these changes, to the “precautionary principle” and the new concept of “burden of proof” in environmental matters. We shall next elaborate the new concept of burden of proof referred to in the Vellore case. In that case, Kuldip Singh, J, stated as follows: (iii) The ‘onus of proof’ is on the actor or the developer/ industrialist to show that his action is environmentally benign….
Good governance is an accepted principle of international and domestic laws. It comprises of the rule of law, effective State institutions, transparency and accountability in public affairs, respect for human rights and the meaningful participation of citizens — (including scientists) - in the political processes of their countries and in decisions affecting their lives. It includes the need for the State to take the necessary “legislative, administrative and other actions” to implement the duty of prevention of environmental harm.”
Good governance is an accepted principle of international and domestic laws. It comprises of the rule of law, effective State institutions, transparency and accountability in public affairs, respect for human rights and the meaningful participation of citizens — (including scientists) - in the political processes of their countries and in decisions affecting their lives. It includes the need for the State to take the necessary “legislative, administrative and other actions” to implement the duty of prevention of environmental harm.”
Oct 7, 2010
Indian Council for Enviro-Legal Action Vs UOI, AIR 1996 SC 1446
Hon'ble Supreme Court of India observed, “In M C Mehta case, no compensation was awarded as this Court could not reach the conclusion that Shriram company came within the meaning of ‘State’ in Article 12 so as to be liable to the discipline of Article 21 and to be subjected to a proceeding under Article 32 of the Constitution….
The Polluter Pays principle demands that the financial costs of preventing or remedying damage caused by pollution should lie with the undertakings which cause the pollution, or produce the goods which cause the pollution….”
The Polluter Pays principle demands that the financial costs of preventing or remedying damage caused by pollution should lie with the undertakings which cause the pollution, or produce the goods which cause the pollution….”
M C Mehta Vs UOI, AIR 1987 SC 1086
Hon'ble Supreme Court of India observed as under, " applications for compensation are for enforcement of the fundamental right to life enshrined in Art. 21 of the Constitution and while dealing with such applications we cannot adopt a hyper-technical approach which would defeat the ends of justice….
If this Court is prepared to accept a letter complaining of violation of the fundamental right of an individual or a class of individuals who cannot approach the Court for justice, there is no reason why these applications for compensation which have been made for enforcement of the fundamental right of the persons affected by the oleum gas leak under Art. 21 should not be entertained….
It may now be taken as well settled that Art. 32 does not merely confer power on this Court to issue a direction, order or writ for enforcement of the fundamental rights but it also lays a constitutional obligation on this Court to protect the fundamental rights of the people and for that purpose this Court has all incidental and ancillary powers including the power to forge new remedies and fashion new strategies designed to enforce the fundamental rights….
If the Court were powerless to issue any direction, order or writ in cases where a fundamental right has already been violated, Art. 32 would be robbed of all its efficacy, because then the situation would be that if a fundamental right is threatened to be violated, the Court can injunct such violation but if the violator is quick enough to take action infringing the fundamental right, he would escape from the net of Art. 32….
The power of the Court to grant such remedial relief may include the power to award compensation in appropriate cases….
Whether Article 21 is available against Shriram which is owned by Delhi Cloth Mills Limited, a public company limited by shares and which is engaged in an industry vital to public interest….
Once an authority is deemed to be ‘other authority’ within the meaning of Article 12, it is State for the purpose of all its activities and functions and the American functional dichotomy by which some functions of an authority….
it is immaterial for the purpose of determining whether a corporation is an instrumentality or agency of the State or not whether it is created by a Statute or under a statute, “the inquiry has to be not as to how the juristic person is born but why it has been brought into existence….
It is true that Control is not exercised by the Government in relation to the internal management policies of the Company. However, the control is exercised on all such activities of Shriram which can jeopardize public interest….
we find that Shriram also receives sizeable assistance in the shape of loans and overdrafts running into several crores of rupees from the Government….
Why should a private corporation under the functional control of the State engaged in an activity which is hazardous to the health and safety of the community and is imbued with public interest and which the State ultimately proposes to exclusively run under its industrial policy, not be subject to the same limitations….
rule in Rylands Vs Fletcher was evolved in the year 1866 and it provides that a person who for his own purpose brings on to his land and collects and keeps there anything likely to do mischief if it escapes must keep it at his peril and, if he fails to do so, is prima facie liable for the damage which is the natural consequence of its escape. The liability under this rule is strict and it is no defence that the thing escaped without that person’s wilful act, default or neglect or even that he had no knowledge of its existence….
rule applies only to non-natural user of the land and it does not apply to things naturally on the land or where the escape is due to an act of God and an act of a stranger or the default of the person injured or where the thing which escapes is present by the consent of the person injured or in certain cases where there is statutory authority….
We need not feel inhibited by this rule which was evolved in this context of a totally different kind of economy. Law has to grow in order to satisfy the needs of the fast changing society…. Law cannot afford to remain static….
We cannot allow our judicial thinking to be constricted by reference to the law as it prevails in England or for the matter of that in any other foreign country….
We are certainly prepared to receive light from whatever source it comes but we have to build up our own jurisprudence…
where an enterprise is engaged in a hazardous or inherently dangerous activity and harm results to anyone on account of an accident in the operation of such hazardous or inherently dangerous activity…. such liability is not subject to any of the exceptions which operate vis-Ã -vis the tortious principle of strict liability under the rule in Rylands Vs Fletcher.
If this Court is prepared to accept a letter complaining of violation of the fundamental right of an individual or a class of individuals who cannot approach the Court for justice, there is no reason why these applications for compensation which have been made for enforcement of the fundamental right of the persons affected by the oleum gas leak under Art. 21 should not be entertained….
It may now be taken as well settled that Art. 32 does not merely confer power on this Court to issue a direction, order or writ for enforcement of the fundamental rights but it also lays a constitutional obligation on this Court to protect the fundamental rights of the people and for that purpose this Court has all incidental and ancillary powers including the power to forge new remedies and fashion new strategies designed to enforce the fundamental rights….
If the Court were powerless to issue any direction, order or writ in cases where a fundamental right has already been violated, Art. 32 would be robbed of all its efficacy, because then the situation would be that if a fundamental right is threatened to be violated, the Court can injunct such violation but if the violator is quick enough to take action infringing the fundamental right, he would escape from the net of Art. 32….
The power of the Court to grant such remedial relief may include the power to award compensation in appropriate cases….
Whether Article 21 is available against Shriram which is owned by Delhi Cloth Mills Limited, a public company limited by shares and which is engaged in an industry vital to public interest….
Once an authority is deemed to be ‘other authority’ within the meaning of Article 12, it is State for the purpose of all its activities and functions and the American functional dichotomy by which some functions of an authority….
it is immaterial for the purpose of determining whether a corporation is an instrumentality or agency of the State or not whether it is created by a Statute or under a statute, “the inquiry has to be not as to how the juristic person is born but why it has been brought into existence….
It is true that Control is not exercised by the Government in relation to the internal management policies of the Company. However, the control is exercised on all such activities of Shriram which can jeopardize public interest….
we find that Shriram also receives sizeable assistance in the shape of loans and overdrafts running into several crores of rupees from the Government….
Why should a private corporation under the functional control of the State engaged in an activity which is hazardous to the health and safety of the community and is imbued with public interest and which the State ultimately proposes to exclusively run under its industrial policy, not be subject to the same limitations….
rule in Rylands Vs Fletcher was evolved in the year 1866 and it provides that a person who for his own purpose brings on to his land and collects and keeps there anything likely to do mischief if it escapes must keep it at his peril and, if he fails to do so, is prima facie liable for the damage which is the natural consequence of its escape. The liability under this rule is strict and it is no defence that the thing escaped without that person’s wilful act, default or neglect or even that he had no knowledge of its existence….
rule applies only to non-natural user of the land and it does not apply to things naturally on the land or where the escape is due to an act of God and an act of a stranger or the default of the person injured or where the thing which escapes is present by the consent of the person injured or in certain cases where there is statutory authority….
We need not feel inhibited by this rule which was evolved in this context of a totally different kind of economy. Law has to grow in order to satisfy the needs of the fast changing society…. Law cannot afford to remain static….
We cannot allow our judicial thinking to be constricted by reference to the law as it prevails in England or for the matter of that in any other foreign country….
We are certainly prepared to receive light from whatever source it comes but we have to build up our own jurisprudence…
where an enterprise is engaged in a hazardous or inherently dangerous activity and harm results to anyone on account of an accident in the operation of such hazardous or inherently dangerous activity…. such liability is not subject to any of the exceptions which operate vis-Ã -vis the tortious principle of strict liability under the rule in Rylands Vs Fletcher.
Oct 6, 2010
M C Mehta Vs UOI, AIR 1987 SC 965
This public interest litigation raises some seminal questions concerning the (1) true scope and ambit of Arts. 21 and 32 of the Constitution and (2) principles and norms for determining the liability of large enterprises engaged in manufacture and sale of hazardous products.
Oct 5, 2010
M C Mehta Vs Kamal Nath, AIR 2000 SC 1997
Hon'ble Supreme Court of India observed as under, "determination of the quantum of pollution fine….
“POLLUTER PAYS PRINCIPLE” has also been applied by this Court in various decisions. In Indian Council for Enviro-Legal Action Vs UOI, AIR 1996 SC 1446, it was held that once the activity carried on was hazardous or inherently dangerous, the person carrying on that activity was liable to make good the loss caused to any other person by that activity….
Pollution is a civil wrong. By its very nature, it is a tort committed against the community as a whole. A person, therefore, who is guilty of causing pollution has to pay damages (compensation) for restoration of the environment and ecology. He has also to pay damages to those who have suffered loss on account of the act of the offender. The powers of this Court under Article 32 are not restricted and it can award damages in a PIL or a Writ Petition as has been held in a series of decisions. In addition to damages aforesaid, the person guilty of causing pollution can also be held liable to pay exemplary damages so that it may act as a deterrent for others not to cause pollution in any manner.”
“POLLUTER PAYS PRINCIPLE” has also been applied by this Court in various decisions. In Indian Council for Enviro-Legal Action Vs UOI, AIR 1996 SC 1446, it was held that once the activity carried on was hazardous or inherently dangerous, the person carrying on that activity was liable to make good the loss caused to any other person by that activity….
Pollution is a civil wrong. By its very nature, it is a tort committed against the community as a whole. A person, therefore, who is guilty of causing pollution has to pay damages (compensation) for restoration of the environment and ecology. He has also to pay damages to those who have suffered loss on account of the act of the offender. The powers of this Court under Article 32 are not restricted and it can award damages in a PIL or a Writ Petition as has been held in a series of decisions. In addition to damages aforesaid, the person guilty of causing pollution can also be held liable to pay exemplary damages so that it may act as a deterrent for others not to cause pollution in any manner.”
Oct 4, 2010
M C Mehta Vs Kamal Nath (1997) 1 SCC 388
Hon'ble Supreme Court of India observed as under, "This Court took notice of the news item appearing in the Indian Express dated 25.2.1996 under the caption – “Kamal Nath dares the mighty Beas to keep his dreams afloat.”….
To ecologists, the need for preserving sensitive resources does not reflect value choices but rather is the necessary result of objective observations of the laws of nature. In sum, ecologists view the environmental sciences as providing us with certain laws of nature….
Under the English common law, however, the Sovereign could own these resources but the ownership was limited in nature, the Crown could not grant these properties to private owners if the effect was to interfere with the public interests in navigation or fishing. Resources that were suitable for these uses were deemed to be held in trust by the Crown for the benefit of the public….
large area of the bank of River Beas which is part of protected forest has been given on a lease purely for commercial purposes to the Motels. We have no hesitation in holding that the Himachal Pradesh Government committed patent breach of public trust by leasing the ecologically fragile land to the Motel management….
The public trust doctrine, as discussed by us in this judgment is a part of the law of the land.”
To ecologists, the need for preserving sensitive resources does not reflect value choices but rather is the necessary result of objective observations of the laws of nature. In sum, ecologists view the environmental sciences as providing us with certain laws of nature….
Under the English common law, however, the Sovereign could own these resources but the ownership was limited in nature, the Crown could not grant these properties to private owners if the effect was to interfere with the public interests in navigation or fishing. Resources that were suitable for these uses were deemed to be held in trust by the Crown for the benefit of the public….
large area of the bank of River Beas which is part of protected forest has been given on a lease purely for commercial purposes to the Motels. We have no hesitation in holding that the Himachal Pradesh Government committed patent breach of public trust by leasing the ecologically fragile land to the Motel management….
The public trust doctrine, as discussed by us in this judgment is a part of the law of the land.”
Oct 3, 2010
M C Mehta Vs Kamal Nath (1997) 1 SCC 388
Hon'ble Supreme Court of India observed, “The issues presented in this case illustrate the classic struggle between those members of the public who would preserve our rivers, forests, parks and open lands in their pristine purity and those charged with administrative responsibilities who, under the pressures of the changing needs of an increasingly complex society, find it necessary to encroach to some extent upon open lands heretofore considered inviolate to change. The resolution of this conflict in any given case is for the legislature and not the courts.”
Oct 2, 2010
M C Mehta Vs UOI, AIR 2002 SC 1696
Hon'ble Supreme Court of India observed, “Articles 39(e), 47 and 48-A by themselves and collectively cast a duty on the State to secure the health of the people, improve public health and protect and improve the environment…
The two essential features of sustainable development are (a) the precautionary principle, and (b) the polluter pays principle….
The ‘precautionary principle’ was elucidated by this Court in Vellore Citizens’ Welfare Forum Vs UoI (1996) 5 SCC 647.”
The two essential features of sustainable development are (a) the precautionary principle, and (b) the polluter pays principle….
The ‘precautionary principle’ was elucidated by this Court in Vellore Citizens’ Welfare Forum Vs UoI (1996) 5 SCC 647.”
Oct 1, 2010
M C Mehta Vs Union of India AIR 1987 SC 965
Hon'ble Supreme Court of India observed, “We would also suggest to the Government of India that since cases involving issues of environmental pollution, ecological destruction and conflicts over national resources are increasingly coming up for adjudication and these cases involve assessment and evolution of scientific and technical data, it might be desirable to set up environment courts on the regional basis with one professional Judge and two experts drawn from the Ecological Sciences Research Group keeping in view the nature of the case and the expertise required for its adjudication. There would of course be a right of appeal to this Court from the decision of the environment court.”
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