Hon'ble Supreme Court of India observed, -One of the paramount duties of the Superior Courts is to see that a person who is apparently innocent is not subjected to persecution and humiliation on the basis of a false and wholly untenable complaint. What was the share of the respective co-sharers is a question which is purely a civil dispute; a criminal court cannot determine the same.
this Court in Mahesh Chand v. B. Janardhan Reddy and Anr. (2003) 1 SCC 734, wherein it was opined that second complaint was not completely barred in law. This Court, however, in that decision itself held that the second complaint can lie only on fresh facts and/or if a special case is made out.
Further, second complaint on the same facts could be entertained only in exceptional circumstances, namely, where the previous order was passed on an incomplete record or on a misunderstanding of the nature of complaint or it was manifestly absurd, unjust or where new facts which could not, with reasonable diligence, have been brought on record in the previous proceedings, have been adduced.
Jan 30, 2011
Lakshmi and Anr Vs Chinnammal @ Rayyammal and Ors, Decided On 08.04.2009
interpretation of Order XIII Rule 10-
Hon'ble Supreme Court of India observed as under - Order XIII of the Code provides for production, impounding and return of documents. Rule 1 of the said Order mandates production of original documents by the parties at or before the settlement of issues. Rule 9 of the Order XIII provides for return of admitted documents. Rule 10 empowers the Court to send papers from its own records or from other courts.
If bringing on record a document is essential for proving the case by a party, ordinarily the same should not be refused; the Court's duty being to find out the truth. The procedural mechanics necessary to arrive at a just decision must be encouraged. We are not unmindful of the fact that the court in the said process would not encourage any fishing inquiry. It would also not assist a party in procuring a document which he should have himself filed.
Hon'ble Supreme Court of India observed as under - Order XIII of the Code provides for production, impounding and return of documents. Rule 1 of the said Order mandates production of original documents by the parties at or before the settlement of issues. Rule 9 of the Order XIII provides for return of admitted documents. Rule 10 empowers the Court to send papers from its own records or from other courts.
If bringing on record a document is essential for proving the case by a party, ordinarily the same should not be refused; the Court's duty being to find out the truth. The procedural mechanics necessary to arrive at a just decision must be encouraged. We are not unmindful of the fact that the court in the said process would not encourage any fishing inquiry. It would also not assist a party in procuring a document which he should have himself filed.
Jan 29, 2011
Kashibai v. Parwatibai (1995) 6 SCC 213
Hon'ble Supreme Court of India observed that in the absence of the consent of one of the two wives, the adoption by the husband could not be treated as valid one.
Jan 28, 2011
Kailash Vs and Ors (2005) 4 SCC 480
Hon'ble Supreme Court observed -
All the rules of procedure are the handmaid of justice. The language employed by the draftsman of processual law may be liberal or stringent, but the fact remains that the object of prescribing procedure is to advance the cause of justice. In an adversarial system, no party should ordinarily be denied the opportunity of participating in the process of justice dispensation.
All the rules of procedure are the handmaid of justice. The language employed by the draftsman of processual law may be liberal or stringent, but the fact remains that the object of prescribing procedure is to advance the cause of justice. In an adversarial system, no party should ordinarily be denied the opportunity of participating in the process of justice dispensation.
Jan 27, 2011
Kalyani Vs Janak C Mehta and Ors (2009) 1 SCC 516
(1) The High Court ordinarily would not exercise its inherent jurisdiction to quash a criminal proceeding and, in particular, a First Information Report unless the allegations contained therein, even if given face value and taken to be correct in their entirety, disclosed no cognizable offence.
(2) For the said purpose, the Court, save and except in very exceptional circumstances, would not look to proceeding and, in particular, a First Information Report unless the allegations contained therein, even if given face value and taken to be correct in their entirety, disclosed no cognizable offence.
(2) For the said purpose, the Court, save and except in very exceptional circumstances, would not look to any document relied upon by the defence.
(3) Such a power should be exercised very sparingly. If the allegations made in the FIR disclose commission of an offence, the court shall not go beyond the same and pass an order in favour of the accused to hold absence of any mens rea or actus reus.
(4) If the allegation discloses a civil dispute, the same by itself may not be a ground to hold that the criminal proceedings should not be allowed to continue.
(2) For the said purpose, the Court, save and except in very exceptional circumstances, would not look to proceeding and, in particular, a First Information Report unless the allegations contained therein, even if given face value and taken to be correct in their entirety, disclosed no cognizable offence.
(2) For the said purpose, the Court, save and except in very exceptional circumstances, would not look to any document relied upon by the defence.
(3) Such a power should be exercised very sparingly. If the allegations made in the FIR disclose commission of an offence, the court shall not go beyond the same and pass an order in favour of the accused to hold absence of any mens rea or actus reus.
(4) If the allegation discloses a civil dispute, the same by itself may not be a ground to hold that the criminal proceedings should not be allowed to continue.
Jan 26, 2011
Shanti Kumar Panda Vs Shakuntala Devi (2004) 1 SCC 438
Hon'ble Supreme Court observed-
A decision by a criminal court does not bind the civil court while a decision by the civil court binds the criminal court.
A decision by a criminal court does not bind the civil court while a decision by the civil court binds the criminal court.
Jan 25, 2011
Uday Shankar Triyar Vs Ram Kalewar Prasad Singh and Anr (2006) 1 SCC 75,
Hon'ble Supreme Court of India observed -
Non-compliance with any procedural requirement relating to a pleading, memorandum of appeal or application or petition for relief should not entail automatic dismissal or rejection, unless the relevant statute or rule so mandates. Procedural defects and irregularities which are curable should not be allowed to defeat substantive rights or to cause injustice. Procedure, a hand-maiden to justice, should never be made a tool to deny justice or perpetuate injustice, by any oppressive or punitive use. The well recognized exceptions to this principle are:
i) where the Statute prescribing the procedure, also prescribes specifically the consequence of noncompliance.
ii) where the procedural defect is not rectified even after it is pointed out and due opportunity is given for rectifying it;
iii) where the non-compliance or violation is proved to be deliberate or mischievous;
iv) where the rectification of defect would affect the case on merits or will affect the jurisdiction of the court.
v) in case of Memorandum of Appeal, there is complete absence of authority and the appeal is presented without the knowledge, consent and authority of the appellant.
Non-compliance with any procedural requirement relating to a pleading, memorandum of appeal or application or petition for relief should not entail automatic dismissal or rejection, unless the relevant statute or rule so mandates. Procedural defects and irregularities which are curable should not be allowed to defeat substantive rights or to cause injustice. Procedure, a hand-maiden to justice, should never be made a tool to deny justice or perpetuate injustice, by any oppressive or punitive use. The well recognized exceptions to this principle are:
i) where the Statute prescribing the procedure, also prescribes specifically the consequence of noncompliance.
ii) where the procedural defect is not rectified even after it is pointed out and due opportunity is given for rectifying it;
iii) where the non-compliance or violation is proved to be deliberate or mischievous;
iv) where the rectification of defect would affect the case on merits or will affect the jurisdiction of the court.
v) in case of Memorandum of Appeal, there is complete absence of authority and the appeal is presented without the knowledge, consent and authority of the appellant.
Jan 24, 2011
Narendra Vs State of Karnataka, Decided On: 05.05.2009
A judge does not preside over a criminal trial merely to see that no innocent man is punished. A judge also presides to see that a guilty man does not escape. The law does not enjoin a duty on the prosecution to lead evidence of such character which is almost impossible to be led or at any rate extremely difficult to be led. The duty on the prosecution is to lead such evidence which it is capable of leading, having regard to the facts and circumstances of the case.
Jan 23, 2011
Leo Roy FRey Vs The Suprentendent District Jail Amritsar and Another AIR 1958 SC 119
Hon'ble Supreme Court observed -It is true that the Collector of Customs has used the words 'punishment' and 'conspiracy', but those words were used in order to bring out that each of the two petitioners was guilty of the offence under s. 167(8) of the Sea Customs Act. The petitioners were not and could never be charged with criminal conspiracy before the Collector of Customs and therefore Art. 20(2) cannot be invoked.
Jan 22, 2011
Monica Bedi Vs State of AP
Hon'ble Supreme Court observed, -Article 20 (2) embodies a protection against a second trial and conviction for the same offence. The fundamental right guaranteed is the manifestation of a long struggle by the mankind for human rights. A similar guarantee is to be found in almost all civilised societies governed by rule of law. The well known maxim `nemo delset bis vexari pro eadem causa; embodies the well established common law rule that no one should be put on peril twice for the same offence. BLACKSTONE referred to this universal maxim of the common law of England that no man is to be brought into jeopardy of his life more than once for the same offence.
The fundamental right guaranteed under Article 20 (2) has its roots in common law maxim nemo debet bis vexari - a man shall not be brought into danger for one and the same offence more than once. If a person is charged again for the same offence, he can plead, as a complete defence, his former conviction, or as it is technically expressed, take the plea of autrefois convict. This in essence is the common law principle. The corresponding provision in the American Constitution is enshrined in that part of the Fifth Amendment which declares that no person shall be subject for the same offence to be twice put in jeopardy of life or limb. The principle has been recognised in the existing law in India and is enacted in Section 26 of the General Clauses Act, 1897 and Section 300 of the Criminal Procedure Code, 1973. This was the inspiration and background for incorporating sub- clause (2) into Article 20 of the Constitution. But the ambit and content of the guaranteed fundamental right are much narrower than those of the common law in England or the doctrine of `double jeopardy' in the American Constitution.
What is the meaning of expression used in Article 20 (2) "for the same offence"? What is prohibited under Article 20 (2) is, the second prosecution and conviction must be for the same offence. If the offences are distinct, there is no question of the rule as to double jeopardy being applicable.
It is thus clear that the same facts may give rise to different prosecutions and punishment and in such an event the protection afforded by Article 20 (2) is not available. It is settled law that a person can be prosecuted and punished more than once even on substantially same facts provided the ingredients of both the offences are totally different and they did not form the same offence.
In Halsbury's Laws of England, 2nd Edition, Volume-IX, the law is succinctly summarised on this aspect of the matter as:
"If the defendant pleads autrefois convict or autrefois acquit, the prosecution replies or demurs. If the prosecution replies, which is the usual course, a jury is sworn to try the issue(x). The onus of proving the plea is on the defendant (a). He may prove it by producing a certified copy of the record or proceedings of the alleged previous conviction or acquittal (b), and showing by such copy or by other evidence, if necessary, that he has been convicted or acquitted of the same, or practically the same, offence as that on which he has been arraigned (c), or that he might on his former trial have been convicted of the offence on which he has been arraigned (d). The question for the jury on the issue is whether the defendant has previously been in jeopardy in respect of the charge on which he is arraigned (e), for the rule of law is that a person must not be put in peril twice for the same offence. The test is whether the former offence and the offence now charged have the same ingredients in the sense that the facts constituting the one are sufficient to justify a conviction of the other, not that the facts relied on by the Crown are the same in the two trials (f)."
The fundamental right guaranteed under Article 20 (2) has its roots in common law maxim nemo debet bis vexari - a man shall not be brought into danger for one and the same offence more than once. If a person is charged again for the same offence, he can plead, as a complete defence, his former conviction, or as it is technically expressed, take the plea of autrefois convict. This in essence is the common law principle. The corresponding provision in the American Constitution is enshrined in that part of the Fifth Amendment which declares that no person shall be subject for the same offence to be twice put in jeopardy of life or limb. The principle has been recognised in the existing law in India and is enacted in Section 26 of the General Clauses Act, 1897 and Section 300 of the Criminal Procedure Code, 1973. This was the inspiration and background for incorporating sub- clause (2) into Article 20 of the Constitution. But the ambit and content of the guaranteed fundamental right are much narrower than those of the common law in England or the doctrine of `double jeopardy' in the American Constitution.
What is the meaning of expression used in Article 20 (2) "for the same offence"? What is prohibited under Article 20 (2) is, the second prosecution and conviction must be for the same offence. If the offences are distinct, there is no question of the rule as to double jeopardy being applicable.
It is thus clear that the same facts may give rise to different prosecutions and punishment and in such an event the protection afforded by Article 20 (2) is not available. It is settled law that a person can be prosecuted and punished more than once even on substantially same facts provided the ingredients of both the offences are totally different and they did not form the same offence.
In Halsbury's Laws of England, 2nd Edition, Volume-IX, the law is succinctly summarised on this aspect of the matter as:
"If the defendant pleads autrefois convict or autrefois acquit, the prosecution replies or demurs. If the prosecution replies, which is the usual course, a jury is sworn to try the issue(x). The onus of proving the plea is on the defendant (a). He may prove it by producing a certified copy of the record or proceedings of the alleged previous conviction or acquittal (b), and showing by such copy or by other evidence, if necessary, that he has been convicted or acquitted of the same, or practically the same, offence as that on which he has been arraigned (c), or that he might on his former trial have been convicted of the offence on which he has been arraigned (d). The question for the jury on the issue is whether the defendant has previously been in jeopardy in respect of the charge on which he is arraigned (e), for the rule of law is that a person must not be put in peril twice for the same offence. The test is whether the former offence and the offence now charged have the same ingredients in the sense that the facts constituting the one are sufficient to justify a conviction of the other, not that the facts relied on by the Crown are the same in the two trials (f)."
Jan 19, 2011
Kailas & Others bs State of Maharashtra TR 2010 Supreme Court of India observed,
Supreme Court of India observed,
We are surprised that the conviction of the accused under the Scheduled Cases and Scheduled Tribes (Prevention of Atrocities) Act, 1989 was set aside on hyper technical grounds that the Caste Certificate was not produced and investigation by a Police Officer of the rank of Deputy Superintendent of Police was not done. These appear to be only technicalities and hardly a ground for acquittal, but since no appeal has been filed against that part of the High Court judgment, we are now not going into it.
The parade of a tribal woman on the village road in broad day light is shameful, shocking and outrageous. The dishonor of the victim Nandabai called for harsher punishment, and we are surprised that the State Government did not file any appeal for enhancement of the punishment awarded by the Additional Sessions Judge.
While North America (USA and Canada) is a country of new immigrants, who came mainly from Europe over the last four or five centuries, India is a country of old immigrants in which people have been coming in over the last ten thousand years or so. Probably about 92% people living in India today are descendants of immigrants, who came mainly from the North-West, and to a lesser extent from the North-East. Since this is a point of great importance for the understanding of our country, it is necessary to go into it in some detail.
People migrate from uncomfortable areas to comfortable areas. This is natural because everyone wants to live in comfort. Before the coming of modern industry there were agricultural societies everywhere, and India was a paradise for these because agriculture requires level land, fertile soil, plenty of water for irrigation etc. which was in abundance in India. Why should anybody living in India migrate to, say, Afghanistan which has a harsh terrain, rocky and mountainous and covered with snow for several months in a year when one cannot grow any crop? Hence, almost all immigrations and invasions came from outside into India (except thosen Indians who were sent out during British rule as indentured labour, and the recent migration of a few million Indians to the developed countries for job opportunities). There is perhaps not a single instance of an invasion from India to outside India.
There are a large number of religions, castes, languages, ethnic groups, cultures etc. in our country, which is due to the fact that India is a country of immigrants. Somebody is tall, somebody is short, some are dark, some are fair complexioned, with all kinds of shades in between, someone has Caucasian features, someone has Mongoloid features, someone has Negroid features, etc. There are differences in dress, food habits and various other matters.
The well known example of the injustice to the tribals is the story of Eklavya in the Adiparva of the Mahabharat. Eklavya wanted to learn archery, but Dronacharya refused to teach him, regarding him as low born. Eklavya then built a statue of Dronacharya and practiced archery before the statue. He would have perhaps become a better archer than Arjun, but since Arjun was Dronacharya;s favourite pupil Dronacharya told Eklavya to cut off his right thumb and give it to him as;guru dakshina; (gift to the teacher given traditionally by the student after his study is complete). In his simplicity Eklavya did what he was told.
This was a shameful act on the part of Dronacharya. He had not even taught Eklavya, so what right had he to demand;guru dakshina;, and that too of the right thumb of Eklavya so that the latter may not become a better archer than his favourite pupil Arjun?
We are surprised that the conviction of the accused under the Scheduled Cases and Scheduled Tribes (Prevention of Atrocities) Act, 1989 was set aside on hyper technical grounds that the Caste Certificate was not produced and investigation by a Police Officer of the rank of Deputy Superintendent of Police was not done. These appear to be only technicalities and hardly a ground for acquittal, but since no appeal has been filed against that part of the High Court judgment, we are now not going into it.
The parade of a tribal woman on the village road in broad day light is shameful, shocking and outrageous. The dishonor of the victim Nandabai called for harsher punishment, and we are surprised that the State Government did not file any appeal for enhancement of the punishment awarded by the Additional Sessions Judge.
While North America (USA and Canada) is a country of new immigrants, who came mainly from Europe over the last four or five centuries, India is a country of old immigrants in which people have been coming in over the last ten thousand years or so. Probably about 92% people living in India today are descendants of immigrants, who came mainly from the North-West, and to a lesser extent from the North-East. Since this is a point of great importance for the understanding of our country, it is necessary to go into it in some detail.
People migrate from uncomfortable areas to comfortable areas. This is natural because everyone wants to live in comfort. Before the coming of modern industry there were agricultural societies everywhere, and India was a paradise for these because agriculture requires level land, fertile soil, plenty of water for irrigation etc. which was in abundance in India. Why should anybody living in India migrate to, say, Afghanistan which has a harsh terrain, rocky and mountainous and covered with snow for several months in a year when one cannot grow any crop? Hence, almost all immigrations and invasions came from outside into India (except thosen Indians who were sent out during British rule as indentured labour, and the recent migration of a few million Indians to the developed countries for job opportunities). There is perhaps not a single instance of an invasion from India to outside India.
There are a large number of religions, castes, languages, ethnic groups, cultures etc. in our country, which is due to the fact that India is a country of immigrants. Somebody is tall, somebody is short, some are dark, some are fair complexioned, with all kinds of shades in between, someone has Caucasian features, someone has Mongoloid features, someone has Negroid features, etc. There are differences in dress, food habits and various other matters.
The well known example of the injustice to the tribals is the story of Eklavya in the Adiparva of the Mahabharat. Eklavya wanted to learn archery, but Dronacharya refused to teach him, regarding him as low born. Eklavya then built a statue of Dronacharya and practiced archery before the statue. He would have perhaps become a better archer than Arjun, but since Arjun was Dronacharya;s favourite pupil Dronacharya told Eklavya to cut off his right thumb and give it to him as;guru dakshina; (gift to the teacher given traditionally by the student after his study is complete). In his simplicity Eklavya did what he was told.
This was a shameful act on the part of Dronacharya. He had not even taught Eklavya, so what right had he to demand;guru dakshina;, and that too of the right thumb of Eklavya so that the latter may not become a better archer than his favourite pupil Arjun?
Jan 18, 2011
Jan 17, 2011
Frank and Co. Ltd. vs. George Banham, 1896 Appeal Cases 199
Lord Macnaghten "fraud is infinite in variety; sometimes it is audacious and unblushing; sometimes it pays a sort of homage to virtue, and then it is modest and retiring; it would be honesty itself if it could only afford it. But fraud is fraud all the same; and it is the fraud, not the manner of it, which calls for the interposition of the Court"
Jan 16, 2011
Venture Global Engineering vs. Satyam Computer Services Ltd. and another (2008) 4 SCC 190
foreign award could be challenged under Section 34 of Arbitration act
Jan 15, 2011
Ram Narayan & Others State Of U.P. 2009
Court held on the permission of investigation u/s 155(2) CrPC -
permission can be granted by the Magistrate on the basis of the application moved by the complainant or any other aggrieved person.
permission can be granted by the Magistrate on the basis of the application moved by the complainant or any other aggrieved person.
Jan 14, 2011
Ghurey Lal v. State of Uttar Pradesh (2008) 10 SCC 450
In this case Hon'ble Supreme Court of India observed on power in appeal
1. The appellate court may review the evidence in appeals against acquittal under Sections 378 and 386 of the Criminal Procedure Code,
1973. Its power of reviewing evidence is wide and the appellate court can re appreciate the entire evidence on record. It can review the trial courts conclusion with respect to both facts and law.
2. The accused is presumed innocent until proven guilty. The accused possessed this presumption when he was before the trial court. The trial courts acquittal bolsters the presumption that he is innocent.
3. Due or proper weight and consideration must be given to the trial courts decision. This is especially true when a witness credibility is at issue. It is not enough for the High Court to take a different view of the evidence. There must also be substantial and compelling reasons for holding that the trial court was wrong.
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1. The appellate court may review the evidence in appeals against acquittal under Sections 378 and 386 of the Criminal Procedure Code,
1973. Its power of reviewing evidence is wide and the appellate court can re appreciate the entire evidence on record. It can review the trial courts conclusion with respect to both facts and law.
2. The accused is presumed innocent until proven guilty. The accused possessed this presumption when he was before the trial court. The trial courts acquittal bolsters the presumption that he is innocent.
3. Due or proper weight and consideration must be given to the trial courts decision. This is especially true when a witness credibility is at issue. It is not enough for the High Court to take a different view of the evidence. There must also be substantial and compelling reasons for holding that the trial court was wrong.
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Jan 13, 2011
Aher Raja Khima Vs. State of Saurashtra: AIR 1956 SC 217
Supreme Court Of India observed -
it is also dangerous to allow a man to be convicted on the strength of a confession unless it is made voluntarily and unless he realises that anything he says may be used against him; and any attempt by a person in authority to bully a person in to making a confession or any threat or coercion would at once invalidate it if the fear was still operating on his mind at the time heal so dangerous to allow a man to be convicted on the strength of a confession unless it is made voluntarily and unless he realises that anything he says may be used against him; and any attempt by a person in authority to bully a person in to making a confession or any threat or coercion would at once invalidate it if the fear was still operating on his mind at that time.
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it is also dangerous to allow a man to be convicted on the strength of a confession unless it is made voluntarily and unless he realises that anything he says may be used against him; and any attempt by a person in authority to bully a person in to making a confession or any threat or coercion would at once invalidate it if the fear was still operating on his mind at the time heal so dangerous to allow a man to be convicted on the strength of a confession unless it is made voluntarily and unless he realises that anything he says may be used against him; and any attempt by a person in authority to bully a person in to making a confession or any threat or coercion would at once invalidate it if the fear was still operating on his mind at that time.
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Jan 12, 2011
Krishna Ghosh Vs. State of West Bengal, Decided On: 31.03.2009
Hon'ble Supreme Court of India observed,
High Court has rightly noted that the conduct of the accused appellants before it had a striking feature in the absence of any reasonable explanation and is an inculpating circumstance against them
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High Court has rightly noted that the conduct of the accused appellants before it had a striking feature in the absence of any reasonable explanation and is an inculpating circumstance against them
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State of Maharashtra Vs. M/s Hindustan Construction Company Ltd. – AIR 2010 SC 1299
amendment in application- where application under Section 34 of Arbitration Act has been made within the prescribed time, leave to amend grounds, in such an application, if the peculiar circumstances of the case and the interest of justice so warrant, can be granted.
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State of Himachal Pradesh Vs Nishant Sareen.
The question raised in this appeal, by special leave, is as regards the extent of power vested in the Government in reviewing its order granting or refusing sanction to prosecute the public servant in terms of Section 19 of the Prevention of Corruption Act, 1988.
Hon'ble Court observed
a change of opinion per se on the same materials cannot be a ground for reviewing or reconsidering the earlier order refusing to grant sanction. However, in a case where fresh materials have been collected by the investigating agency subsequent to the earlier order and placed before the sanctioning authority and on that basis, the matter is reconsidered by the sanctioning authority and in light of the fresh materials an opinion is formed that sanction to prosecute the public servant may be granted, there may not be any impediment to adopt such course.
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Hon'ble Court observed
a change of opinion per se on the same materials cannot be a ground for reviewing or reconsidering the earlier order refusing to grant sanction. However, in a case where fresh materials have been collected by the investigating agency subsequent to the earlier order and placed before the sanctioning authority and on that basis, the matter is reconsidered by the sanctioning authority and in light of the fresh materials an opinion is formed that sanction to prosecute the public servant may be granted, there may not be any impediment to adopt such course.
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Jan 3, 2011
Uma Shankar Singh Vs State of Bihar & Anr
On behalf of the Petitioner it was urged that when he was not named as an accused in the charge-sheet filed by the investigating agency, the Magistrate could not have taken cognizance as far as he was concerned and the trial court should have waited till the stage of Section 319 Cr.P.C. if at all the Petitioner was to be arrayed as an accused. Mr P S Mishra, learned Senior Advocate, reiterated the oft-repeated saying that cognizance is taken of an offence and not the offender.
Magistrate can apply his mind independently to the materials contained in the police report.
Magistrate can apply his mind independently to the materials contained in the police report.
Jan 2, 2011
Emperor vs Barendra Kumar Ghosh on 23.10.1924
There is a difference between object and intention, for, though their object is common, the intentions of the several members may differ and indeed may be similar only in respect that they are all unlawful, while the element of participation in action, which is the leading feature of Section 34, is replaced in Section 149 by membership of the assembly at the time of the committing of the offence. Both sections deal with combinations of persons, who become punishable as sharers in an offence. Thus they have a certain resemblance and may to some extent overlap, but Section 149 cannot at any rate relegate 34 to the position of dealing only with joint action by the commission of identically similar criminal acts, a kind of case which is not in itself deserving of separate treatment at all.
Abetment does not in itself involve the actual commission of the crime abetted. It is a crime apart. Section 114 deals with the case, where there has been the crime of abetment, but where also there has been actual commission of the crime abetted and the abettor has been present thereat, and the way in which it deals with such a case is this. Instead of the crime being still abetment with circumstances of aggravation, the crime becomes the very crime abetted.
Abetment does not in itself involve the actual commission of the crime abetted. It is a crime apart. Section 114 deals with the case, where there has been the crime of abetment, but where also there has been actual commission of the crime abetted and the abettor has been present thereat, and the way in which it deals with such a case is this. Instead of the crime being still abetment with circumstances of aggravation, the crime becomes the very crime abetted.
Dhapubai (Dead) Widow of Gopalji through LRs Vs Ghisalal and others
decided by Hon'ble Supreme Court of India on 12.01.11
Whether mere presence of wife in the ceremonies performed by her husband for adoption of child amounted to her consent as contemplated by the proviso to Section 7 of the Hindu Adoptions and Maintenance Act, 1956 or not-
The term 'consent' used in the proviso to Section 7 and the explanation appended thereto has not been defined in the Act. Therefore, while interpreting these provisions, the Court shall have to keep in view the legal position obtaining before enactment of the 1956 Act, the object of the new legislation and apply the rule of purposive interpretation...
Unfortunately, all the Courts completely ignored that presence of Dhapubai in the ceremonies of adoption was only as a mute spectator and not as an active participant...
By no stretch of imagination, this could be equated with her active participation in the adoption ceremonies so as to enable the Courts to draw an inference that she had given consent for the adoption of Ghisalal.
adoption of Ghisalal by Gopalji was not valid because her consent had not been obtained as per the mandate of the proviso to Section 7 of the 1956 Act.
Whether mere presence of wife in the ceremonies performed by her husband for adoption of child amounted to her consent as contemplated by the proviso to Section 7 of the Hindu Adoptions and Maintenance Act, 1956 or not-
The term 'consent' used in the proviso to Section 7 and the explanation appended thereto has not been defined in the Act. Therefore, while interpreting these provisions, the Court shall have to keep in view the legal position obtaining before enactment of the 1956 Act, the object of the new legislation and apply the rule of purposive interpretation...
Unfortunately, all the Courts completely ignored that presence of Dhapubai in the ceremonies of adoption was only as a mute spectator and not as an active participant...
By no stretch of imagination, this could be equated with her active participation in the adoption ceremonies so as to enable the Courts to draw an inference that she had given consent for the adoption of Ghisalal.
adoption of Ghisalal by Gopalji was not valid because her consent had not been obtained as per the mandate of the proviso to Section 7 of the 1956 Act.
Jan 1, 2011
Himanshu Singh Sabharwal Vs State of M P, AIR 2008 SC 1943
Hon'ble Supreme Court observed, "The Courts have to take a participatory role in a trial. They are not expected to be tape recorders to record whatever is being stated by the witnesses. Section 311 of the Code and Section 165 of the Evidence Act confer vast and wide powers on Presiding Officers of Court to elicit all necessary materials by playing an active role in the evidence collecting process. They have to monitor the proceedings in aid of justice in a manner that something, which is not relevant, is not unnecessarily brought into record. Even if the prosecutor is remiss in some ways, it can control the proceedings effectively so that ultimate objective i.e. truth is arrived at. This becomes more necessary where the Court has reasons to believe that the prosecuting agency or the prosecutor is not acting in the requisite manner. The Court cannot afford to be wishfully or pretend to be blissfully ignorant or oblivious to such serious pitfalls or dereliction of duty on the part of the prosecuting agency.”
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