CBI is not an authority

In Sh Navendra Kumar Vs UOI, Gauhati High Court on 08.10.13 declared constitution of CBI as ultra virus and also explains what is an obiter dictum as under,

“So far as constitution of police force is concerned, Union and the State, both have legislative competence to enact laws on ‘ police’. However, so far as law, enacted by Parliament, is concerned, it can operate only in the ‘Union territories’ and not in any ‘ State’, because ‘police’ is a subject falling under State List”

“The State, in D Bhuvan Mohan Patnaik Vs State of AP AIR 1974 SC 2092 which had acted on executive instructions in installing live high-voltage wire on the walls of the jail, could not justify installation of this mechanism on the basis of a ‘law’ or ‘ procedure established by law’ inasmuch as the executive instructions, which had been acted upon, were held by the Supreme Court to be not a ‘law’ within the meaning of Article 13(3)(a) nor could these instructions, according to the Supreme Court, fall within the expression, “procedure established by law’, as envisaged by Article 21.”

“The elaborate discussions on the concepts of ratio decidendi and obiter dicta, made in the cases pointed above, can be summarized as follows:

(a) A decision is an authority for what it actually decides. What is the essence, in a decision, is its ratio and not every observation found therein nor what logically flows from the various observations made in the judgment. The enunciation of the reason or the principles on which a question before a Court has been decided, is alone binding as a precedent.

(b) In a given case, two questions may arise before a Court for its determination. The Court may determine both, although only one of them may be necessary for the ultimate decision of the case. The question, which was necessary for the determination of the case would be the 'ratio decidendi' . However, the opinion of the tribunal on the question, which was not necessary to decide the case would be only an 'obiter dictum'.

(c) ‘Obiter dictum’ is made as argument or illustration, as pertinent to other cases as to the one on hand, and which may enlighten or convince, but which in no sense are a part of the judgment in[…]”

Dr Rajesh Talwar & Anr Vs CB

Hon'ble Supreme Court of India while dismissing an application of accused u/s 233 CrPC to call certain witnesses observed on 08.10.2013 as “We might note that criminal courts are not obliged to accede to the request made by any party to entertain and allow application for additional evidence and in fact, are bound in terms of Section 233(3) Cr.PC. to refuse such request if it appears that they are made in order to vex the proceedings or delay the same”

Read Full Judgment Here

EVM Paper Trail Judgment- A Judgment or an office order?

Dr Subramanian Swamy Vs Election Commission of India full judgment text

I have just gone through this judgment. In this case Hon'ble Supreme Court of India observed that paper trail/ paper receipt is necessary in the election in India and held in para 29 

"From the materials placed by both the sides, we are satisfied that the “paper trail” is an indispensable requirement of free and fair elections. The confidence of the voters in the EVMs can be achieved only with the introduction of the paper trail”

Government of India was also directed to provide required financial “assistance for procurement of units of VVPAT” for implementation of such a system (VVPAT) in a phased manner. 

With due respect to everybody after reading this judgment and being a toddler in field of law I failed to understand whether it is a judgment or office order by a senior executive or a review of work of some junior officer. My understanding about a judgment was that it decides an issue between two parties or establish rule of law and save the constitution.  But this judgment failed to touch any legal issue except the word herein above in inverted commas. 

Judgment goes in a direction to discuss implementation of Paper trail and its' cost. This is perhaps under the duty and power of other wing and not to judiciary. Moreover judgment nowhere discuss whether other wing failed to do his duty or not but gave direction to provided fund of Rs 1690 crore for these machine. 

This amount is not huge keeping in mind the budget of State but I am more concerned with the paper. In my opinion it will waste a huge number of paper resulting in loss of trees and environment.

Keeping a paper trail or giving a receipt to voter may be harmful in any country specifically in India. This may becomes a method for powerful and bad elements of society to ensure that a fearful voter had cast vote in his favour and voter may be forced to handover the said paper to those person outside the both. 

EVM was introduced in the elections many years back and now days there is not a very big disrespect or hate against them. Moreover Court is there to protect and ensure free and fair election and not to create or "achieved the confidence of voter". Same is the duty, field or specifically dream of the Parliament. 

Just punishment is the collective cry of the society

Gopal Singh Vs State of Uttarakhand JT 2013 (3) SC 444 Hon'ble Supreme Court of India observed as 

“18. Just punishment is the collective cry of the society. While the collective cry has to be kept uppermost in the mind, simultaneously the principle of proportionality between the crime and punishment cannot be totally brushed aside. The principle of just punishment is the bedrock of sentencing in respect of a criminal offence”

sentence should reflect the crime

Hazara Singh vs Raj Kumar Hon'ble Supreme Court of India observed on 18.04.13 as

“The cardinal principle of sentencing policy is that the sentence imposed on an offender should reflect the crime he has committed and it should be proportionate to the gravity of the offence.”

“If acquittal of some co-accused casts a cloud of doubt over the entire prosecution case, the whole case may be rejected. But we fail to understand how acquittal of some of the accused can have any relevance to the question of sentence awarded to those who are convicted.”

“Mr Jain said that the High Court has enhanced the fine and compensated the injured and, therefore, we should not enhance the sentence. Accepting such a submission would mean that if your pockets can afford, commit serious crime, offer to pay heavy fine and escape entacles of law. Power of wealth need not extend to overawe court processes.”

Disqualification of MP on conviction

Hon'ble Supreme Court of India in Lily Thomas Vs Union of India observed on 10.07.13 as  “if any sitting member of Parliament or a State Legislature is convicted of any of the offences mentioned in sub-sections (1), (2) and (3) of Section 8 of the Act and by virtue of such conviction and/or sentence suffers the disqualifications mentioned in sub-sections (1), (2) and (3) of Section 8 of the Act after the pronouncement of this “judgment, his membership of Parliament or the State Legislature, as the case may be, will not be saved by subsection (4) of Section 8 of the Act which we have by this judgment declared as ultra vires the Constitution notwithstanding that he files the appeal or revision against the conviction and /or sentence."

there is no substantial difference between an appeal against convictionand an appeal against acquittal

IN Kanhaiya Lal & Ors Hon'ble Supreme Court of India observed

“delayed FIR can usher in craftsmanship, manipulation and embellishment and may make the prosecution story vulnerable, but when the delay has been adequately explained, the same deserves acceptation and, accordingly, we do so.”

“In the case at hand, the witnesses have lost their father, husband and a relative. There is no earthly reason to categorise them as interested witnesses who would nurture an animus to see that the accused persons are convicted, though they are not involved in the crime. On the contrary, they would like that the real culprits are prosecuted and convicted”

“The preponderance of judicial opinion of this Court is that there is no substantial difference between an appeal against conviction and an appeal against acquittal except that while dealing with an appeal against acquittal, the Court keeps in view the position that the presumption of innocence in favour of the accused has been fortified by his acquittal."

Sunil Mehta & Anr Vs State of Gujarat & Anr

Hon'ble Supreme Court of India observed on 20.02.13
CrPC 1973 - Chapter XV & Part B of Chapter XIX - Whether depositions of the complainant and his witnesses recorded before cognizance is taken by the Magistrate would constitute evidence for the Magistrate to frame charges against the accused? - No