Nov 17, 2010
Udit Narain Singh Malpaharia Vs Addl Member, Board of Revenue, Bihar, AIR 1963 SC 786,
Hon'ble Supreme Court of India observed as under, " To answer the question raised it would be convenient at the outset to ascertain who are necessary or proper parties in a proceeding. The law on the subject is well settled: it is enough if we state the principle. A necessary party is one without whom no order can be made effectively; a proper party is one in whose absence an effective order can be made but whose presence is necessary for a complete and final decision on the question involved in the proceeding.”
Nov 16, 2010
Shiv Shakti Co-op Housing Society, Nagpur Vs Swaraj Developers (2003) 6 SCC 659,
Hon'ble Supreme Court of India observed as under, "It is a well-settled principle in law that the Court cannot read anything into a statutory provision which is plain and unambiguous. A statute is an edict of the legislature. The language employed in a statute is the determinative factor of legislative intent. Words and phrases are symbols that stimulate mental references to referents. The object of interpreting a statute is to ascertain the intention of the legislature enacting it. (See Institute of Chartered Accountants of India v. Price Waterhouse.) The intention of the legislature is primarily to be gathered from the language used, which means that attention should be paid to what has been said as also to what has not been said. As a consequence, a construction which requires for its support, addition or substitution of words or which results in rejection of words as meaningless has to be avoided. As observed in Crawford v. Spooner Courts cannot aid the legislatures' defective phrasing of an Act, we cannot add or mend, and by construction make up deficiencies which are left there. (See State of Gujarat v. Dilipbhai Nathjibhai Patel). It is contrary to all rules of construction to read words into an Act unless it is absolutely necessary to do so. [See Stock v. Frank Jones (Tipton) Ltd.] Rules of interpretation do not permit Courts to do so, unless the provision as it stands is meaningless or of a doubtful meaning. Courts are not entitled to read words into an Act of Parliament unless clear reason for it is to be found within the four corners of the Act itself.”
Nov 15, 2010
RS Nayak Vs AR Antulay, AIR 1984 SC 684,
Hon'ble Supreme Court of India observed as under, "...If the words of the Statute are clear and unambiguous, it is the plainest duty of the Court to give effect to the natural meaning of the words used in the provision. The question of construction arises only in the event of an ambiguity or the plain meaning of the words used in the Statute would be self defeating.”
Nov 14, 2010
D Velusamy Vs D Patchaiammal, CRIMINAL APPEAL NOS. 2028-2029 OF 2010
we may point out that the expression `domestic relationship' includes not only the relationship of marriage but also a relationship `in the nature of marriage'. The question, therefore, arises as to what is the meaning of the expression `a relationship in the nature of marriage'. Unfortunately this expression has not been defined in the Act. Since there is no direct decision of this Court on the interpretation of this expression we think it necessary to interpret it because a large number of cases will be coming up before the Courts in our country on this point, and hence an authoritative decision is required…..
In our opinion a `relationship in the nature of marriage' is akin to a common law marriage. Common law marriages require that although not being formally married :-
(a) The couple must hold themselves out to society as being akin to spouses.
(b) They must be of legal age to marry.
(c) They must be otherwise qualified to enter into a legal marriage, including being unmarried.
(d) They must have voluntarily cohabited and held themselves out to the world as being akin to spouses for a significant period of time.(see `Common Law Marriage' in Wikipedia on Google)
In our opinion a `relationship in the nature of marriage' under the 2005 Act must also fulfill the above requirements, and in addition the parties must have lived together in a `shared household' as defined in Section 2(s) of the Act. Merely spending weekends together or a one night stand would not make it a `domestic relationship'….
In our opinion not all live in relationships will amount to a relationship in the nature of marriag8e to get the benefit of the Act of 2005.To get such benefit the conditions mentioned by us above must be satisfied, No doubt the view we are taking would exclude many women who have had a live in relationship from the benefit of the 2005 Act, but then it is not for this Court to legislate or amend the law. Parliament has used the expression `relationship in the nature of marriage' and not `live in relationship'. The Court in the grab of interpretation cannot change the language of the statute.
Read full Judgment at http://judis.nic.in/supremecourt/helddis3.aspx
In our opinion a `relationship in the nature of marriage' is akin to a common law marriage. Common law marriages require that although not being formally married :-
(a) The couple must hold themselves out to society as being akin to spouses.
(b) They must be of legal age to marry.
(c) They must be otherwise qualified to enter into a legal marriage, including being unmarried.
(d) They must have voluntarily cohabited and held themselves out to the world as being akin to spouses for a significant period of time.(see `Common Law Marriage' in Wikipedia on Google)
In our opinion a `relationship in the nature of marriage' under the 2005 Act must also fulfill the above requirements, and in addition the parties must have lived together in a `shared household' as defined in Section 2(s) of the Act. Merely spending weekends together or a one night stand would not make it a `domestic relationship'….
In our opinion not all live in relationships will amount to a relationship in the nature of marriag8e to get the benefit of the Act of 2005.To get such benefit the conditions mentioned by us above must be satisfied, No doubt the view we are taking would exclude many women who have had a live in relationship from the benefit of the 2005 Act, but then it is not for this Court to legislate or amend the law. Parliament has used the expression `relationship in the nature of marriage' and not `live in relationship'. The Court in the grab of interpretation cannot change the language of the statute.
Read full Judgment at http://judis.nic.in/supremecourt/helddis3.aspx
Nov 13, 2010
Vimala (K) Vs Veeraswamy (K) (1991) 2 SCC 375
Hon'ble Supreme Court of India observed about sect 125 CrPC "the object is to prevent vagrancy and destitution. It provides a speedy remedy for the supply of food, clothing and shelter to the deserted wife. When an attempt is made by the husband to negative the claim of the neglected wife depicting her as a kept-mistress on the specious plea that he was already married, the court would insist on strict proof of the earlier marriage. The term `wife' in Section 125 of the Code of Criminal Procedure, includes a woman who has been divorced by a husband or who has obtained a divorce from her husband and has not remarried. The woman not having the legal status of a wife is thus brought within the inclusive definition of the term `wife' consistent with the objective. However, under the law a second wife whose marriage is void on account of the survival of the first marriage is not a legally wedded wife, and is, therefore, not entitled to maintenance under this provision."
Nov 12, 2010
The Jumma Masjid, Mercara Vs Kodimaniandra Deviah AIR 1962 SC 847
Transfer of Property Act - Sections 6, 43 and 44
Hon'ble Supreme Court of India observed, “The sole point for determination in this appeal is, whether a transfer of property for consideration made by a person who represents that he has a present and transferable interest therein, while he possesses, in fact, only a spes successionis, is within the protection of s. 43 of the Transfer of Property Act. If it is, then on the facts found by the courts below, the title of the respondents under Ex. III and Ex. IV must prevail over that of the appellant under Ex. A. If it is not, then the appellant succeeds on the basis of Ex. A.…
whenever a person transfers property to which he has no title on a representation that he has a present and transferable interest therein, and acting on that representation, the transferee takes a transfer for consideration. When these conditions are satisfied, the section enacts that if the transferor subsequently acquires the property, the transferee becomes entitled to it, if the transfer has not meantime been thrown up or cancelled and is subsisting. There is an exception in favour of transferees for consideration in good faith and without notice of the rights under the prior transfer. But apart from that, the section is absolute and unqualified in its operation. It applies to all transfers which fulfil the conditions prescribed therein, and it makes no difference in its application, whether the defect of title in the transferor arises by reason of his having no interest whatsoever in the property, or of his interest therein being that of an expectant heir….
Section 43 deals with representations as to title made by a transferor who had no title at the time of transfer, and provides that the transfer shall fasten itself on the title which the transferor subsequently acquires. Section 6(a) enacts a rule of substantive law, while s. 43 enacts a rule of estoppel which is one of evidence. The two provisions operate on different fields, and under different conditions, and we see no ground for reading a conflict between them or for cutting down the ambit of the one by reference to the other. In out opinion, both of them can be given full effect on their own terms, in their respective spheres. To hold that transfers by persons who have only a spes successionis at the date of transfer are not within the protection afforded by s. 43 would destroy its utility to a large extent….
when a person transfers property representing that he has a present interest therein, whereas he has, in fact, only a spes successionis, the transferee is entitled to the benefit of s. 43, if he has taken the transfer on the faith of that representation and for consideration. In the present case, Santhappa, the vendor in Ex. III, represented that he was entitled to the property in praesenti, and it has been found that the purchaser entered into the transaction acting on that representation. He therefor acquired title to the properties under s. 44 of the Transfer of Property Act.”
Hon'ble Supreme Court of India observed, “The sole point for determination in this appeal is, whether a transfer of property for consideration made by a person who represents that he has a present and transferable interest therein, while he possesses, in fact, only a spes successionis, is within the protection of s. 43 of the Transfer of Property Act. If it is, then on the facts found by the courts below, the title of the respondents under Ex. III and Ex. IV must prevail over that of the appellant under Ex. A. If it is not, then the appellant succeeds on the basis of Ex. A.…
whenever a person transfers property to which he has no title on a representation that he has a present and transferable interest therein, and acting on that representation, the transferee takes a transfer for consideration. When these conditions are satisfied, the section enacts that if the transferor subsequently acquires the property, the transferee becomes entitled to it, if the transfer has not meantime been thrown up or cancelled and is subsisting. There is an exception in favour of transferees for consideration in good faith and without notice of the rights under the prior transfer. But apart from that, the section is absolute and unqualified in its operation. It applies to all transfers which fulfil the conditions prescribed therein, and it makes no difference in its application, whether the defect of title in the transferor arises by reason of his having no interest whatsoever in the property, or of his interest therein being that of an expectant heir….
Section 43 deals with representations as to title made by a transferor who had no title at the time of transfer, and provides that the transfer shall fasten itself on the title which the transferor subsequently acquires. Section 6(a) enacts a rule of substantive law, while s. 43 enacts a rule of estoppel which is one of evidence. The two provisions operate on different fields, and under different conditions, and we see no ground for reading a conflict between them or for cutting down the ambit of the one by reference to the other. In out opinion, both of them can be given full effect on their own terms, in their respective spheres. To hold that transfers by persons who have only a spes successionis at the date of transfer are not within the protection afforded by s. 43 would destroy its utility to a large extent….
when a person transfers property representing that he has a present interest therein, whereas he has, in fact, only a spes successionis, the transferee is entitled to the benefit of s. 43, if he has taken the transfer on the faith of that representation and for consideration. In the present case, Santhappa, the vendor in Ex. III, represented that he was entitled to the property in praesenti, and it has been found that the purchaser entered into the transaction acting on that representation. He therefor acquired title to the properties under s. 44 of the Transfer of Property Act.”
Nov 11, 2010
Quadrat Ullah Vs Municipal Board Bareilly, AIR 1974 SC 396
Hon'ble Supreme Court of India observed, “There is no simple litmus test to distinguish a lease as defined in Section 105 Transfer of Property Act from a licence as defined in Section 52, Easements Act, but the character of the transaction turns on the operative intent of the parties. To put it pithily, if an interest in immovable property, entitling the transferees to enjoyment, is created, it is a lease; if permission to use land without right to exclusive possession is alone granted, a licence is the legal result. Marginal variations to this broad statement are possible and Ex. '1' and '4' fall in the grey area of unclear recitals. The law on the point has been stated by this Court in the Associated Hotels' case….
In determining whether an agreement creates between the parties the relationship of landlord and tenant or merely that of licenser and licensee the decisive consideration is the intention of the parties. The parties to an agreement cannot, however, turn a lease into a licence merely by stating that the document is to be deemed a licence or describing it as such; the relationship of the parties is determined by law on a consideration of all relevant provisions of the agreement; nor will the employment of words appropriate to a lease prevent the agreement from conferring a licence only if from the whole document it appears that it was intended merely to confer a licence. In the absence of any formal document the intention of the parties must be inferred from the circumstances and the conduct of the parties….
The fact that the agreement grants a right of exclusive possession is not in itself conclusive evidence of the existence of a tenancy, but it is a consideration of the first importance….
A licence is normally created where a person is granted the right to use premises without becoming entitled to exclusive possession thereof, or the circumstances and conduct of the parties show that all that was intended was that the grantee should be granted a personal privilege with no interest in the land. If the agreement is merely for the use of the property in a certain way and on certain terms while the property remains in the possession and control of the owner, the agreement will operate as a licence, even though the agreement may employ words appropriate to a lease….”
In determining whether an agreement creates between the parties the relationship of landlord and tenant or merely that of licenser and licensee the decisive consideration is the intention of the parties. The parties to an agreement cannot, however, turn a lease into a licence merely by stating that the document is to be deemed a licence or describing it as such; the relationship of the parties is determined by law on a consideration of all relevant provisions of the agreement; nor will the employment of words appropriate to a lease prevent the agreement from conferring a licence only if from the whole document it appears that it was intended merely to confer a licence. In the absence of any formal document the intention of the parties must be inferred from the circumstances and the conduct of the parties….
The fact that the agreement grants a right of exclusive possession is not in itself conclusive evidence of the existence of a tenancy, but it is a consideration of the first importance….
A licence is normally created where a person is granted the right to use premises without becoming entitled to exclusive possession thereof, or the circumstances and conduct of the parties show that all that was intended was that the grantee should be granted a personal privilege with no interest in the land. If the agreement is merely for the use of the property in a certain way and on certain terms while the property remains in the possession and control of the owner, the agreement will operate as a licence, even though the agreement may employ words appropriate to a lease….”
Nov 10, 2010
Rambaran Prosad Vs Ram Mohit Hazra and Ors, AIR1967 SC 744
learned Counsel put forward the argument that the covenant for pre-emption was merely a personal covenant between the contracting parties and was not binding against successors-in-interest or the assignees of the original parties to the contract. We are unable to accept this submission as correct. It is true that the pre-emption clause does not expressly state that it is binding upon the assignees or successors-in-interest, but, having regard to the context and the circumstances in which the award was made, it is manifest that the pre-emption clause must be construed as binding upon the assignees or successors-in-interest of the original contracting parties.
Nov 9, 2010
Pandit Chunchun Jha Vs Sheikh Ebadat Ali and Anr
Transfer of Property Act - Section 58- The question whether a given transaction is a mortgage by conditional sale or a sale outright with a condition of repurchase is a vexed one which invariably gives rise to trouble and litigation….
first is that the intention of the parties is the determining factor- The next step is to see whether the document is covered by section 58(c) of the Transfer of Property Act, for, if it is not, then it cannot be a mortgage by conditional sale. The first point there is to see whether there is an "ostensible sale." That means a transaction which takes the outward from of a sale, for the essence of a mortgage by conditional sale is that though in substance it is a mortgage it is couched in the form of a sale with certain conditions attached.
first is that the intention of the parties is the determining factor- The next step is to see whether the document is covered by section 58(c) of the Transfer of Property Act, for, if it is not, then it cannot be a mortgage by conditional sale. The first point there is to see whether there is an "ostensible sale." That means a transaction which takes the outward from of a sale, for the essence of a mortgage by conditional sale is that though in substance it is a mortgage it is couched in the form of a sale with certain conditions attached.
Nov 8, 2010
Raja Dhruv Dev Chand Vs Harmohinder Singh and Anr AIR 1968 SC 1024
Lease of a land by Govt before partition. After partition land goes to Pakistan. Whether frustrated and lessee can claim money back.
Nov 7, 2010
State of UP Vs Deoman Upadhyaya 1960 CrLJ 1504
Evidence Act 1872 – Sec 27 -accused offered to hand over the gandasa which he said, he had thrown in the village tank after murder, and in the presence of the investigating officer and certain witnesses, he waded into the tank and took out a gandasa, which, on examination by the Serologist, was found to be stained with human blood….
Hon'ble Supreme Court of India observed, “Section 27 of the Indian Evidence Act is one of a group of sections relating to the relevancy of certain forms of admissions made by persons accused of offences. Sections 24 to 30 of the Act deal with admissibility of confessions, i.e., of statements made by a person stating or suggesting that he has committed a crime. By s. 24, in a criminal proceeding against a person, a confession made by him is inadmissible if it appears to the court to have been caused by inducement, threat or promise having reference to the charge and proceeding from a person in authority. By s. 25, there is an absolute ban against proof at the trial of a person accused of an offence, of a confession made to a police officer. The ban which is partial under s. 24 and complete under s. 25 applies equally whether or not the person against whom evidence is sought to be led in a criminal trial was at the time of making the confession in custody. For the ban to be effective the person need not have been accused of an offence when he made the confession. The expression, "accused person" in s. 24 and the expression "a person accused of any offence" have the same connotation, and describe the person against whom evidence is sought to be led in a criminal proceeding….
Section 27 is founded on the principle that even though the evidence relating to confessional or other statements made by a person, whilst he is in the custody of a police officer, is tainted and therefore inadmissible, if the truth of the information given by him is assured by the discovery of a fact, it may be presumed to be untainted and is therefore declared provable in so far as it distinctly relates to the fact thereby discovered. Even though s. 27 is in the form of a proviso to s. 26, the two sections do not necessarily deal with the evidence of the same character. The ban imposed by s. 26 is against the proof of confessional statements. Section 27 is concerned with the proof of information whether it amounts to a confession or not, which leads to discovery of facts. By s. 27, even if a fact is deposed to as discovered in consequence of information received, only that much of the information is admissible as distinctly relates to the fact discovered…..
On an analysis of Sections 24 to 27 of the Indian Evidence Act, and s. 162 of the Code of Criminal Procedure, the following material propositions emerge :-
(a) Whether a person is in custody or outside, a confession made by him to a police officer or the making of which is procured by inducement, threat or promise having reference to the charge against him and proceeding from a person in authority, is not provable against him in any proceeding in which he is charged with the commission of an offence.
(b) A confession made by a person whilst he is in the custody of a police officer to a person other than a police officer is not provable in a proceeding in which he is charged with the commission of an offence unless it is made in the immediate presence of a Magistrate.
(c) That part of the information given by a person whilst in police custody whether the information is confessional or otherwise, which distinctly relates to the fact thereby discovered but no more, is provable in a proceeding in which he is charged with the commission of an offence.
(d) A statement whether it amounts to a confession or not made by a person when he is not in custody, to another person such latter person not being a police officer may be proved if it is otherwise relevant.
(e) A statement made by a person to a police officer in the course of an investigation of an offence under Ch. XIV of the Code of Criminal Procedure, cannot except to the extent permitted by s. 27 of the Indian Evidence Act, be used for any purpose at any enquiry or trial in respect of any offence under investigation at the time when the statement was made in which he is concerned as a person accused of an offence.”
Hon'ble Supreme Court of India further observed, “"persons in custody" and "persons not in custody" do not stand on the same footing nor require identical protection, is the mere theoretical possibility of some degree of inequality of the protection of the laws relating to the admissibility of evidence between persons in custody and persons not in custody by itself a ground of striking down a salutory provision of the law of evidence ?
the High Court was in error in holding that s. 27 of the Indian Evidence Act and s. 162, sub-s. (2), of the Code of Criminal Procedure in so far as 'that section relates to s. 27of the Indian Evidence Act' are void as offending Art. 14 of the Constitution….
The High Court was of the view that the mere fetching of the gandasa from its hiding place did not establish that Deoman himself had put it in the tank, and an inference could legitimately be raised that somebody else had placed it in the tank, or that Deoman had seen someone placing that gandasa in the tank or that someone had told him about the gandasa lying in the tank. But for reasons already set out the information given by Deoman is provable in so far as it distinctly relates to the fact thereby discovered : and his statement that he had thrown the gandasa in the tank is information which distinctly relates to the discovery of the gandasa. Discovery from its place of hiding, at the instance of Deoman of the gandasa stained with human blood in the light of the admission by him that he had thrown it in the tank in which it was found therefore acquires significance, and destroys the theories suggested by the High Court. …
The quarrel between Deoman and Sukhdei and the threat uttered by him that he would smash Sukhdei's "mouth" (face) and his absconding immediately after the death of Sukhdei by violence, lend very strong support to the case for the prosecution. The evidence, it is true, is purely circumstantial but the facts proved establish a chain which is consistent only with his guilt and not with his innocence. In our opinion therefore the Sessions Judge was right in his view that Deoman had caused the death of Sukhdei by striking her with the gandasa produced before the court….
When an offence is committed and investigation starts, the police have two objects in view. The first is the collection of information, and the second is the finding of the offender….
Section 27 which is framed as an exception has rightly been held as an exception to Sections 24 to 26 and not only to s. 26.”
Subba Rao was in minority and held section 27 as unconstitutional.
Hon'ble Supreme Court of India observed, “Section 27 of the Indian Evidence Act is one of a group of sections relating to the relevancy of certain forms of admissions made by persons accused of offences. Sections 24 to 30 of the Act deal with admissibility of confessions, i.e., of statements made by a person stating or suggesting that he has committed a crime. By s. 24, in a criminal proceeding against a person, a confession made by him is inadmissible if it appears to the court to have been caused by inducement, threat or promise having reference to the charge and proceeding from a person in authority. By s. 25, there is an absolute ban against proof at the trial of a person accused of an offence, of a confession made to a police officer. The ban which is partial under s. 24 and complete under s. 25 applies equally whether or not the person against whom evidence is sought to be led in a criminal trial was at the time of making the confession in custody. For the ban to be effective the person need not have been accused of an offence when he made the confession. The expression, "accused person" in s. 24 and the expression "a person accused of any offence" have the same connotation, and describe the person against whom evidence is sought to be led in a criminal proceeding….
Section 27 is founded on the principle that even though the evidence relating to confessional or other statements made by a person, whilst he is in the custody of a police officer, is tainted and therefore inadmissible, if the truth of the information given by him is assured by the discovery of a fact, it may be presumed to be untainted and is therefore declared provable in so far as it distinctly relates to the fact thereby discovered. Even though s. 27 is in the form of a proviso to s. 26, the two sections do not necessarily deal with the evidence of the same character. The ban imposed by s. 26 is against the proof of confessional statements. Section 27 is concerned with the proof of information whether it amounts to a confession or not, which leads to discovery of facts. By s. 27, even if a fact is deposed to as discovered in consequence of information received, only that much of the information is admissible as distinctly relates to the fact discovered…..
On an analysis of Sections 24 to 27 of the Indian Evidence Act, and s. 162 of the Code of Criminal Procedure, the following material propositions emerge :-
(a) Whether a person is in custody or outside, a confession made by him to a police officer or the making of which is procured by inducement, threat or promise having reference to the charge against him and proceeding from a person in authority, is not provable against him in any proceeding in which he is charged with the commission of an offence.
(b) A confession made by a person whilst he is in the custody of a police officer to a person other than a police officer is not provable in a proceeding in which he is charged with the commission of an offence unless it is made in the immediate presence of a Magistrate.
(c) That part of the information given by a person whilst in police custody whether the information is confessional or otherwise, which distinctly relates to the fact thereby discovered but no more, is provable in a proceeding in which he is charged with the commission of an offence.
(d) A statement whether it amounts to a confession or not made by a person when he is not in custody, to another person such latter person not being a police officer may be proved if it is otherwise relevant.
(e) A statement made by a person to a police officer in the course of an investigation of an offence under Ch. XIV of the Code of Criminal Procedure, cannot except to the extent permitted by s. 27 of the Indian Evidence Act, be used for any purpose at any enquiry or trial in respect of any offence under investigation at the time when the statement was made in which he is concerned as a person accused of an offence.”
Hon'ble Supreme Court of India further observed, “"persons in custody" and "persons not in custody" do not stand on the same footing nor require identical protection, is the mere theoretical possibility of some degree of inequality of the protection of the laws relating to the admissibility of evidence between persons in custody and persons not in custody by itself a ground of striking down a salutory provision of the law of evidence ?
the High Court was in error in holding that s. 27 of the Indian Evidence Act and s. 162, sub-s. (2), of the Code of Criminal Procedure in so far as 'that section relates to s. 27of the Indian Evidence Act' are void as offending Art. 14 of the Constitution….
The High Court was of the view that the mere fetching of the gandasa from its hiding place did not establish that Deoman himself had put it in the tank, and an inference could legitimately be raised that somebody else had placed it in the tank, or that Deoman had seen someone placing that gandasa in the tank or that someone had told him about the gandasa lying in the tank. But for reasons already set out the information given by Deoman is provable in so far as it distinctly relates to the fact thereby discovered : and his statement that he had thrown the gandasa in the tank is information which distinctly relates to the discovery of the gandasa. Discovery from its place of hiding, at the instance of Deoman of the gandasa stained with human blood in the light of the admission by him that he had thrown it in the tank in which it was found therefore acquires significance, and destroys the theories suggested by the High Court. …
The quarrel between Deoman and Sukhdei and the threat uttered by him that he would smash Sukhdei's "mouth" (face) and his absconding immediately after the death of Sukhdei by violence, lend very strong support to the case for the prosecution. The evidence, it is true, is purely circumstantial but the facts proved establish a chain which is consistent only with his guilt and not with his innocence. In our opinion therefore the Sessions Judge was right in his view that Deoman had caused the death of Sukhdei by striking her with the gandasa produced before the court….
When an offence is committed and investigation starts, the police have two objects in view. The first is the collection of information, and the second is the finding of the offender….
Section 27 which is framed as an exception has rightly been held as an exception to Sections 24 to 26 and not only to s. 26.”
Subba Rao was in minority and held section 27 as unconstitutional.
Nov 6, 2010
Satyabrata Ghose Vs Mugneeram Bangur & Co and Anr [1954] S.C.R. 310
Hon'ble Supreme Court of India observed "The doctrine of frustration is really an aspect or part of the law of discharge of contract by reason of supervening impossibility or illegality of the act agreed to be done and hence comes within the purview of section 56 of the Indian Contract Act. It would be incorrect to say that section 56 of the Contract Act applies only to case of physical impossibility and that where this section is not applicable, recourse can be had to the principles of English law on the subject of frustration. It must be held also that to the extent that the Indian Contract Act deals with a particular subject, it is exhaustive upon the same and it is not permissible to import the principles of English law dehors these statutory provisions."
Nov 5, 2010
Prem Shankar Shukla Delhi Administration, AIR 1980 SC 1535
Hon'ble Supreme Court of India observed, “Handcuffing of accused should not be made in case of non-approval of same by Judicial Officer….
a telegram from one Shukla, prisoner lodged in the Tihar Jail, has prompted the present 'habeas' proceedings…. The petitioner claims that he is a 'better class' prisoner, a fact which is admitted, although one fails to understand how there can be a quasi-caste system among prisoners in the egalitarian context of Article 14. It is a sour fact of life that discriminatory treatment based upon wealth and circumstances dies hard under the Indian Sun. We hope the Ministry of Home Affairs and the Prison Administration will take due note of the survival after legal death of this invidious distinction and put all prisoners on the same footing unless there is a rational classification based upon health, age, academic or occupational needs or like legitimate ground and not irrelevant factors like wealth, political importance, social status and other criteria which are a hang-over of the hierarchical social structure hostile to the constitutional ethos….
In Sunil Butra's case (supra) it has been laid down by a Constitution Bench of this Court that imprisonment does not, ipso facto mean that fundamental rights desert the detainee….
Handcuffs should not be used in routine. They are to be used only where the person is desperate, rowdy or is involved in non-bailable offence. There should ordinarily be no occasion to handcuff persons occupying a good social position in public life, or professionals like jurists, advocates doctors, writers, educationists’ and well known journalists. This is at best an illustrative list; obviously it cannot be exhaustive. It is the spirit behind these instructions that should be understood. It shall be the duty of supervisory officers at various levels, the SHO primarily, to see that these instructions are strictly complied with. In case of non-observance of these instructions severe action should be taken against the defaulter….
The duty officers of the police station must also ensure that an accused when brought at the police station or dispatched, the facts where he was handcuffed or otherwise should be clearly mentioned along with the reasons for handcuffing in the relevant daily diary report. The SHO of the police station and ACP of the Sub-Division will occasionally check up the relevant daily diary to see that these instructions are being complied’ with by the police station staff….
Handcuffing is prima facie inhuman and, therefore, unreasonable, is over-harsh and at the first flush, arbitrary. Absent fair procedure and objective monitoring, to inflict 'irons' is to resort to zoological strategies repugnant to Article 21….
Once we make it a constitutional mandate that no prisoner shall be handcuffed or fettered routinely or merely for the convenience of the custodian or escort--and we declare that to be the law--the distinction between classes of prisoners becomes constitutionally obsolete. Apart from the fact that economic and social importance cannot be the basis for classifying prisoners for purposes of handcuffs or otherwise, how can we assume that a rich criminal or under-trial is any different from a poor or pariah convict or under-trial in the matter of security risk ? An affluent in custody may be as dangerous or desperate as an indigent, if not more…..
a telegram from one Shukla, prisoner lodged in the Tihar Jail, has prompted the present 'habeas' proceedings…. The petitioner claims that he is a 'better class' prisoner, a fact which is admitted, although one fails to understand how there can be a quasi-caste system among prisoners in the egalitarian context of Article 14. It is a sour fact of life that discriminatory treatment based upon wealth and circumstances dies hard under the Indian Sun. We hope the Ministry of Home Affairs and the Prison Administration will take due note of the survival after legal death of this invidious distinction and put all prisoners on the same footing unless there is a rational classification based upon health, age, academic or occupational needs or like legitimate ground and not irrelevant factors like wealth, political importance, social status and other criteria which are a hang-over of the hierarchical social structure hostile to the constitutional ethos….
In Sunil Butra's case (supra) it has been laid down by a Constitution Bench of this Court that imprisonment does not, ipso facto mean that fundamental rights desert the detainee….
Handcuffs should not be used in routine. They are to be used only where the person is desperate, rowdy or is involved in non-bailable offence. There should ordinarily be no occasion to handcuff persons occupying a good social position in public life, or professionals like jurists, advocates doctors, writers, educationists’ and well known journalists. This is at best an illustrative list; obviously it cannot be exhaustive. It is the spirit behind these instructions that should be understood. It shall be the duty of supervisory officers at various levels, the SHO primarily, to see that these instructions are strictly complied with. In case of non-observance of these instructions severe action should be taken against the defaulter….
The duty officers of the police station must also ensure that an accused when brought at the police station or dispatched, the facts where he was handcuffed or otherwise should be clearly mentioned along with the reasons for handcuffing in the relevant daily diary report. The SHO of the police station and ACP of the Sub-Division will occasionally check up the relevant daily diary to see that these instructions are being complied’ with by the police station staff….
Handcuffing is prima facie inhuman and, therefore, unreasonable, is over-harsh and at the first flush, arbitrary. Absent fair procedure and objective monitoring, to inflict 'irons' is to resort to zoological strategies repugnant to Article 21….
Once we make it a constitutional mandate that no prisoner shall be handcuffed or fettered routinely or merely for the convenience of the custodian or escort--and we declare that to be the law--the distinction between classes of prisoners becomes constitutionally obsolete. Apart from the fact that economic and social importance cannot be the basis for classifying prisoners for purposes of handcuffs or otherwise, how can we assume that a rich criminal or under-trial is any different from a poor or pariah convict or under-trial in the matter of security risk ? An affluent in custody may be as dangerous or desperate as an indigent, if not more…..
Nov 4, 2010
Maneka Gandhi Vs Union of India [1978] 2 SCR 621
The ambit of personal liberty protected by Article 21 is wide and comprehensive. It embraces both substantive rights to personal liberty and the procedure provided for their deprivation.
Nov 3, 2010
Porstor Miemoller said
When they arrested my neighbour I did not protest. When they arrested the men and women in the opposite house I did not protest. And when they finally came for me, there was nobody left to protest.
Nov 2, 2010
Prem Chand Vijay Kumar Vs Yashpal Singh and Anr, (2005) 4 SCC 417
If dishonour of a cheque has once snowballed into a cause of action it is not permissible for a payee to create another cause of action with the same cheque. Limitation started with first notice of demand and second notice made no difference.
Nov 1, 2010
Nazar Singh and others Vs Jagjit Kaur and others, AIR 1996 SC 855
Question was whether a land received by widow as compromise in lieu of her maintenance would become absolute property u/s14 Hindu Succession Act or not. Court held yes.
Mst. Karmi Vs Amru and Ors, AIR 1971 SC 745
The life estate given to a lady under a will cannot become an absolute estate under the provisions of the Hindu Succession Act.
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