Hindu under HMA

In Sondur Gopal Vs Sondur Rajini Hon'ble Supreme Court of India observed as on 15.07.13

“State cannot have operation in another State. A law which has extra territorial operation cannot directly be enforced in another State but such a law is not invalid and saved by Article 245 (2) of the Constitution of India. Article 245(2) provides that no law made by Parliament shall be deemed to be invalid on the ground that it would have extra-territorial operation. But this does not mean that law having extra-territorial operation can be enacted which has no nexus at all with India”

“Therefore, in our opinion, the decision of the Calcutta High Court taking a view that the provisions of the Act would apply to a Hindu whether domiciled in the territory of India or not does not lay down the law correctly”

“To say that it applies to Hindus irrespective of their domicile extends the extra-territorial operation of the Act all over the world without any nexus which interpretation if approved, would make such provision invalid.”

“the Act will apply to Hindu outside the territory of India only if such a Hindu is domiciled in the territory of India.”

“The right to change the domicile of birth is available to any person not legally dependant and such a person can acquire domicile of choice. It is done by residing in the country of choice with intention of continuing to reside there indefinitely. Unless proved, there is presumption against the change of domicile”

Court Question- role of court

Ram Chander Vs State Of Haryana AIR 1981 SC 1036 

Evidence Act- sec 165- power of court to ask question- role of court in evidence

"“If a Criminal Court is to be an effective instrument in dispensing justice, the presiding judge must cease to be a spectator and a mere recording machine. He must become a participant in the trial by evincing intelligent active interest by putting questions to witnesses in order to ascertain the truth. The Court has wide powers and must actively participate in the trial to elicit the truth and to protect the weak and the innocent. It is the duty of a judge to discover the truth and for that purpose he may "ask any question, in any form, at any time, of any witness, or of the parties, about any fact, relevant or irrelevant". But this he must do, without unduly trespassing upon the functions of the public prosecutor and the defence counsel, without any hint of partisanship and without appearing to frighten, coerce, confuse, intimidate or bully witnesses. He must take the prosecution and the defence with him. The Court. the prosecution and the defence must work as a team whose goal is justice, a team whose captain is the judge. The judge, "like the conductor of a choir, must, by force of personality personality, induce his team to work in harmony; subdue the raucous, encourage the timid, conspire with the young, flatter and old”

“The Court, the prosecution and the defence must work as a team whose goal is justice, a team whose captain is the judge.”

Common object” may also be developed at the time of incident

 Ramachandran and others v. State (2011) 9 SCC 257

 “27. Thus, this Court has been very cautious in a catena of judgments that where general allegations are made against a large number of persons the court would categorically scrutinise the evidence and hesitate to convict the large number of persons if the evidence available on record is vague. It is obligatory on the part of the court to examine that if the offence committed is not in direct prosecution of the common object, it yet may fall under the second part of Section 149 IPC, if the offence was such as the members knew was likely to be committed. Further inference has to be drawn as to what was the number of persons; how many of them were merely passive witnesses; what were their arms and weapons. The number and nature of injuries is also relevant to be considered. “Common object” may also be developed at the time of incident”

Execution of decree

Babu Lal Vs M/s. Hazari Lal Kishori Lal & Ors. (1982) 1 SCC 525 Hon'ble Supreme Court of India observed as 

“Procedure is meant to advance the cause of justice and not to retard it. The difficulty of the decree holder starts in getting possession in pursuance of the decree obtained by him. The judgment debtor tries to thwart the execution by all possible objections…...”

Disposal of case property- how to prove

AIR 2003 SC 638 Sunderbhai Ambalal Desai and C M Mudaliar Vs State of Gujarat Hon'ble Supreme Court of India observed as 

“In our view, the powers under Section 451 Cr.P.C. should be exercised expeditiously and judiciously. It would serve various purposes, namely:--

1. Owner of the article would not suffer because of its remaining unused or by its misappropriation;

2. Court or the police would not be required to keep the article in safe custody;

3. If the proper panchnama before handing over possession of article is prepared, that can be used in evidence instead of its production before the Court during the trial. If necessary, evidence could also be recorded describing the nature of the property in detail; and

4. This jurisdiction of the Court to record evidence should be exercised promptly so that there may not be further chance of tampering with the articles."

“For this purpose, if material on record indicates that such articles belong to the complainant at whose house theft, robbery or dacoity has taken place, then seized articles be handed over to the complainant after:--

(1) preparing detailed proper panchnama of such articles;

(2) taking photographs of such articles and a bond that such articles would be produced if required at the time of trial; and  (3) after taking proper security.

13. For this purpose, the Court may fol ow the procedure of recording such evidence, as it thinks necessary, as provided under Section 451 Cr.P.C. The bond and security should be taken so as to prevent the evidence being lost, altered or destroyed. The Court should see that photographs of such articles are attested or countersigned by the complainant, accused as well as by the person to whom the custody is handed over. Still however, it would be the function of the Court under Section 451 Cr.P.C. to impose any other appropriate condition.”

“In any case, such articles should be produced before the Magistrate within a week of their seizure. If required, the Court may direct that such articles be handed over back to the Investigating Officer for further investigation and identification. However, in no set of circumstances, the Investigating Officer should keep such articles in custody for a longer period for the purpose of investigation and identification. For currency notes, similar procedure can be followed”

“For articles such as seized liquor also, prompt action should be taken in disposing it of after preparing necessary panchnama. If sample is required to be taken, sample may kept properly after sending it to the chemical analyser, if required. But in no case, large quantity of liquor should be stored at the police station. No purpose is served by such storing.

20. Similarly for the Narcotic drugs also....”

“In our view, no further directions are required to be given in these matters.

However, it is made clear that in case where accused disputes that he is not involved in the alleged incident and no article was found from him then such endorsement be taken on the photograph. Further with regard to the vehicle also, it is made clear that there may not be any necessity of producing the vehicle before the Court and the seizure Report may be sufficient”

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."

Delay in lodging the FIR

In State of H P Vs Gian Chand (2001) 6 SCC 71 Hon'ble Supreme Court of India observed as,

“Delay in lodging the FIR cannot be used as a ritualistic formula for doubting the prosecution case and discarding the same solely on the ground of delay in lodging the first information report. Delay has the effect of putting the court on its guard to search if any explanation has been offered “for the delay, and if offered, whether it is satisfactory or not. If the prosecution fails to satisfactorily explain the delay and there is a possibility of embellishment in the prosecution version on account of such delay, the delay would be fatal to the prosecution. However, if the delay is explained to the satisfaction of the court, the delay cannot by itself be a ground for disbelieving and discarding the entire prosecution case”

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."

legislature is the best judge

 Indian Supreme Court in State of Bihar Vs Kameshwar Singh, AIR1952 S.C. 252(274) observed as "The legislature is the best judge of what is good for the community, by whose suffrage it comes into existence."

reservation instead of removing caste system is promoting caste system

reservation instead of removing caste system is promoting caste system. Reservation in educational institutions is draining the count of talented minds from the country. In short reservation is not the right approach to improve the conditions of the backward caste, because if it would have been a right approach then it would have shown results but even after more than 60 years of independence still the situation of the backward castes has not improved. http://www.lawyersclubindia.com/articles/Reservation-Is-it-satisfying-the-purpose-for-which-it-was-implemented--5587.asp