"In a case where the magistrate has
to perform the duty of recording a statement under Section 164
Cr.P.C., he is under an obligation to elicit all information which the
witness wishes to disclose, as a witness who may be an illiterate,
rustic villager may not be aware of the purpose for which he has been
brought, and what he must disclose in his statements under Section 164
Cr.P.C. Hence, the magistrate should ask the witness explanatory
questions and obtain all possible information in relation to the said case." Hon'ble Supreme Court of India observed on 04.02.13 in R Shaji Vs State of Kerala
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Mar 30, 2013
Jan 27, 2013
M C Mehta Vs Union of India (1987) 1 SCC 395
Hon'ble Supreme Court of India observed as on ambit and scope of Article 32 “We have already had occasion to consider the ambit and coverage of Article 32 in the Bandhua Mukti Morcha v. Union of India and we wholly endorse what has been stated by one of us namely, Bhagwati, J. as he then was in his judgment in that case in regard to the true scope and ambit of that article. It may now be taken as well settled that Article 32 does not merely confer power on this Court to issue a direction, order or writ for enforcement of the fundamental rights but it also lays a constitutional obligation on this Court to protect the fundamental rights of the people and for that purpose this Court has all incidental and ancillary powers including the power to forge new remedies and fashion new strategies designed to enforce the fundamental rights. It is in realisation of this constitutional obligation that this Court has in the past innovated new methods and strategies for the purpose of securing enforcement of the fundamental rights, particularly in the case of the poor and the disadvantaged who are denied their basic human rights and to whom freedom and liberty have no meaning.
We are also of the view that this Court under Article 32(1) is free to devise any procedure appropriate for the particular purpose of the proceeding, namely, enforcement of a fundamental right and under Article 32(2) the court has the implicit power to issue whatever direction, order or writ is necessary in a given case, including all incidental or ancillary power necessary to secure enforcement of the fundamental right. The power of the court is not only injunctive in ambit, that is, preventing the infringement of a fundamental right, but it is also remedial in scope and provides relief against a breach of the fundamental right already committed vide Bandhua Mukti Morcha case. If the court were powerless to issue any direction, order or writ in cases where a fundamental right has already been violated, Article 32 would be robbed of all its efficacy, because then the situation would be that if a fundamental right is threatened to be violated, the court can inject such violation but if the violator is quick enough to take action infringing the fundamental right, he would escape from the net of Article 32. That would, to a large extent, emasculate the fundamental right guaranteed under Article 32 and render it impotent and futile. We must, therefore, hold that Article 32 is not powerless to assist a person when he finds that his fundamental right has been violated. He can in that event seek remedial assistance under Article 32. The power of the court to grant such remedial relief may include the power to award compensation in appropriate cases. We are deliberately using the words “in appropriate cases” because we must make it clear that it is not in every case where there is a breach of a fundamental right committed by the violator that compensation would be awarded by the court in a petition under Article 32.”
We are also of the view that this Court under Article 32(1) is free to devise any procedure appropriate for the particular purpose of the proceeding, namely, enforcement of a fundamental right and under Article 32(2) the court has the implicit power to issue whatever direction, order or writ is necessary in a given case, including all incidental or ancillary power necessary to secure enforcement of the fundamental right. The power of the court is not only injunctive in ambit, that is, preventing the infringement of a fundamental right, but it is also remedial in scope and provides relief against a breach of the fundamental right already committed vide Bandhua Mukti Morcha case. If the court were powerless to issue any direction, order or writ in cases where a fundamental right has already been violated, Article 32 would be robbed of all its efficacy, because then the situation would be that if a fundamental right is threatened to be violated, the court can inject such violation but if the violator is quick enough to take action infringing the fundamental right, he would escape from the net of Article 32. That would, to a large extent, emasculate the fundamental right guaranteed under Article 32 and render it impotent and futile. We must, therefore, hold that Article 32 is not powerless to assist a person when he finds that his fundamental right has been violated. He can in that event seek remedial assistance under Article 32. The power of the court to grant such remedial relief may include the power to award compensation in appropriate cases. We are deliberately using the words “in appropriate cases” because we must make it clear that it is not in every case where there is a breach of a fundamental right committed by the violator that compensation would be awarded by the court in a petition under Article 32.”
Vineet Narain Vs Union of India (1998) 1 SCC 226
Hon'ble Supreme Court of India observed as “There are ample powers conferred by Article 32 read with Article 142 to make orders which have the effect of law by virtue of Article 141 and there is mandate to all authorities to act in aid of the orders of this Court as provided in Article 144 of the Constitution. In a catena of decisions of this Court, this power has been recognised and exercised, if need be, by issuing necessary directions to fill the vacuum till such time the legislature steps in to cover the gap or the executive discharges its role. It is in the discharge of this duty that the IRC was constituted by the Government of India with a view to obtain its recommendations after an in-depth study of the problem in order to implement them by suitable executive directions till proper legislation is enacted. The report of the IRC has been given to the Government of India but because of certain difficulties in the present context, no further action by the executive has been possible. The study having been made by a Committee considered by the Government of India itself as an expert body, it is safe to act on the recommendations of the IRC to formulate the directions of this Court, to the extent they are of assistance. In the remaining area, on the basis of the study of the IRC and its recommendations, suitable directions can be formulated to fill the entire vacuum. This is the exercise we propose to perform in the present case since
this exercise can no longer be delayed. It is essential and indeed the constitutional obligation of this Court under the
aforesaid provisions to issue the necessary directions in this behalf. We now consider formulation of the needed directions in the performance of this obligation. The directions issued herein for strict compliance are to operate till such time as they are replaced by suitable legislation in this behalf.”
Court on its own Motion Vs UOI
Hon'ble Supreme Court of India observed as - 13.12.12 - Amarnath cave case - in terms of Article 21 of the Constitution of India, a person has a right to live with dignity and not be subjected to inhuman treatment, particularly in such places where large number of people are bound to visit because of their faith.
The absence of statutory law
occupying the field formulating effective measures to check breach of
rights is the true scope of proper administration of justice. It is the
duty of the Executive to secure the vacuum, if any, by executive orders
because its field is coterminous with that of the Legislature and where there is inaction even by the Executive, for whatever reason, the Judiciary
must step in, in pursuance of its constitutional obligation to provide solution in any case till the time the Legislature addresses the issue.
The courts have taken precaution not to pass orders even within the ambit of Article 142 of the Constitution that would amount to supplanting
substantive law but at the same time these constitutional powers cannot in
any way be controlled by any statutory provision. The absence of law and a vacuum or lacunae in law can always be supplied by judicial dictum.
The absence of statutory law
occupying the field formulating effective measures to check breach of
rights is the true scope of proper administration of justice. It is the
duty of the Executive to secure the vacuum, if any, by executive orders
because its field is coterminous with that of the Legislature and where there is inaction even by the Executive, for whatever reason, the Judiciary
must step in, in pursuance of its constitutional obligation to provide solution in any case till the time the Legislature addresses the issue.
The courts have taken precaution not to pass orders even within the ambit of Article 142 of the Constitution that would amount to supplanting
substantive law but at the same time these constitutional powers cannot in
any way be controlled by any statutory provision. The absence of law and a vacuum or lacunae in law can always be supplied by judicial dictum.
University of Kerala Vs Council of Principals of Colleges, Kerala & Ors (2010) 1 SCC 353
Hon'ble Supreme Court of India observed as
“32. It may be noted that this Court has on several occasions issued directions, directives in respect of those situations which are not covered by any law. The decision in Vishaka Vs State of Rajasthan is one such instance wherein a three-Judge Bench of this Court gave several directions to prevent sexual harassment of women at the workplace. Taking into account the “absence of enacted law” to provide for effective enforcement of the right of gender equality and guarantee against sexual harassment, Verma, C.J. held that guidelines and norms given by the Court will hold the field until legislation was enacted for the purpose. It was clarified that this Court was acting under Article 32 of the Constitution and the directions “would be treated as the law declared by the Court under Article 141 of the Constitution”.
33. Similarly, the Supreme Court issued directions regarding the procedure and the necessary precautions to be followed in the adoption of Indian children by foreign adoptive parents. While there was no law to regulate inter-country adoptions, Bhagwati, J., (as His Lordship then was) in Laxmi Kant Pandey Vs Union of India, formulated an entire scheme for regulating inter-country and intra-country adoptions. This is an example of the judiciary filling up the void by giving directions which are still holding the field.”
“32. It may be noted that this Court has on several occasions issued directions, directives in respect of those situations which are not covered by any law. The decision in Vishaka Vs State of Rajasthan is one such instance wherein a three-Judge Bench of this Court gave several directions to prevent sexual harassment of women at the workplace. Taking into account the “absence of enacted law” to provide for effective enforcement of the right of gender equality and guarantee against sexual harassment, Verma, C.J. held that guidelines and norms given by the Court will hold the field until legislation was enacted for the purpose. It was clarified that this Court was acting under Article 32 of the Constitution and the directions “would be treated as the law declared by the Court under Article 141 of the Constitution”.
33. Similarly, the Supreme Court issued directions regarding the procedure and the necessary precautions to be followed in the adoption of Indian children by foreign adoptive parents. While there was no law to regulate inter-country adoptions, Bhagwati, J., (as His Lordship then was) in Laxmi Kant Pandey Vs Union of India, formulated an entire scheme for regulating inter-country and intra-country adoptions. This is an example of the judiciary filling up the void by giving directions which are still holding the field.”
OMA @ Omprakash & Anr Vs State of Tamil Nadu
Hon'ble Supreme Court of India -on 18.12.12- in this case Session Court had observed, “In this case, the accused came from a state about
2000 k.m. from our state and they did not think that
the victims were also human like them but they thought only about the well being of their family and
their own life and committed the fear of death amongst the common public of our state by committing robbery and murder for about 11 years.
Therefore, this court is of the opinion that the death sentence that would be imposed on them would create a fear amongst the criminals who commit such crime and further this case is a rarest of rare
case that calls for the imposition of death sentence.” -
The ‘special reasons’ weighed with the trial judge to say the least, was only one’s predilection or
inclination to award death sentence, purely judge-centric.
Learned judge has not discussed the aggravating or mitigating
circumstances of this case, the approach was purely ‘crimecentric’.... We are really surprised to note the “special reasons” stated by the trial judge in para 36(b) of the judgment. We fail to see why we import the criminal jurisprudence of America or the Arab
countries to our system. Learned trial judge speaks of sentence like “lynching” and described that it has attained legal form in America. Lynching means kill someone for an alleged offence
without a legal trial, especially by hanging....
We are also not concerned with the question whether the
criminals have come from 20 km away or 2000 km away.
Learned judge says that they have come to “our state”, forgetting the fact that there is nothing like ‘our state’ or ‘your state’. Such parochial attitude shall not influence or sway a judicial mind.
Learned judge has further stated, since the accused persons had come from a far away state, about 2000 km to “our state” for
committing robbery and murder, death sentence would be
imposed on them. Learned judge has adopted a very strange
reasoning, needs fine tuning and proper training....
Learned trial judge has also opined that the imposition of death sentence under Section 396 of the IPC is the only weapon in the hands of judiciary under the prevailing law to help to eliminate the crime. Judiciary has neither any weapon in its hands nor uses it to eliminate crimes. Duty of the judge is to decide cases which come before him in accordance with the constitution and laws, following the settled judicial precedents. A
Judge is also part of the society where he lives and also conscious of what is going on in the society. Judge has no weapon or sword. Judge’s greatest strength is the trust and confidence of the people, whom he serves. We may point out that clear reasoning and analysis are the basic requirements in a judicial decision.
Judicial decision is being perceived by the parties and by the society in general as being the result of a correct application of the legal rules, proper evaluation of facts based on settled judicial
precedents and judge shall not do anything which will undermine the faith of the people.
2000 k.m. from our state and they did not think that
the victims were also human like them but they thought only about the well being of their family and
their own life and committed the fear of death amongst the common public of our state by committing robbery and murder for about 11 years.
Therefore, this court is of the opinion that the death sentence that would be imposed on them would create a fear amongst the criminals who commit such crime and further this case is a rarest of rare
case that calls for the imposition of death sentence.” -
The ‘special reasons’ weighed with the trial judge to say the least, was only one’s predilection or
inclination to award death sentence, purely judge-centric.
Learned judge has not discussed the aggravating or mitigating
circumstances of this case, the approach was purely ‘crimecentric’.... We are really surprised to note the “special reasons” stated by the trial judge in para 36(b) of the judgment. We fail to see why we import the criminal jurisprudence of America or the Arab
countries to our system. Learned trial judge speaks of sentence like “lynching” and described that it has attained legal form in America. Lynching means kill someone for an alleged offence
without a legal trial, especially by hanging....
We are also not concerned with the question whether the
criminals have come from 20 km away or 2000 km away.
Learned judge says that they have come to “our state”, forgetting the fact that there is nothing like ‘our state’ or ‘your state’. Such parochial attitude shall not influence or sway a judicial mind.
Learned judge has further stated, since the accused persons had come from a far away state, about 2000 km to “our state” for
committing robbery and murder, death sentence would be
imposed on them. Learned judge has adopted a very strange
reasoning, needs fine tuning and proper training....
Learned trial judge has also opined that the imposition of death sentence under Section 396 of the IPC is the only weapon in the hands of judiciary under the prevailing law to help to eliminate the crime. Judiciary has neither any weapon in its hands nor uses it to eliminate crimes. Duty of the judge is to decide cases which come before him in accordance with the constitution and laws, following the settled judicial precedents. A
Judge is also part of the society where he lives and also conscious of what is going on in the society. Judge has no weapon or sword. Judge’s greatest strength is the trust and confidence of the people, whom he serves. We may point out that clear reasoning and analysis are the basic requirements in a judicial decision.
Judicial decision is being perceived by the parties and by the society in general as being the result of a correct application of the legal rules, proper evaluation of facts based on settled judicial
precedents and judge shall not do anything which will undermine the faith of the people.
Ravi alias Ravichandran Vs State represented by Inspector of Police (2007) 15 SCC 372
Hon'ble Supreme Court of India observed as -
“A judgment of conviction can be arrived at even if no test identification parade has been held. But when a first information report has been lodged against unknown persons, a test identification parade in terms of Section 9 of the Evidence Act, is held for the purpose of testing the veracity of the witness in regard to his capability of identifying persons who were unknown to him....
It was incumbent upon the prosecution to arrange a test identification parade. Such test identification parade was required to be held as early as possible so as to exclude the possibility of the accused being identified either at the police station or at some other place by the witnesses concerned or with reference to the photographs published in the newspaper. A conviction should not be based on a vague identification.”
“A judgment of conviction can be arrived at even if no test identification parade has been held. But when a first information report has been lodged against unknown persons, a test identification parade in terms of Section 9 of the Evidence Act, is held for the purpose of testing the veracity of the witness in regard to his capability of identifying persons who were unknown to him....
It was incumbent upon the prosecution to arrange a test identification parade. Such test identification parade was required to be held as early as possible so as to exclude the possibility of the accused being identified either at the police station or at some other place by the witnesses concerned or with reference to the photographs published in the newspaper. A conviction should not be based on a vague identification.”
Bhajju alias Karan Singh Vs State of Madhya Pradesh -(2012) 4 SCC 327
A two-Judge Bench of Hon'ble Supreme Court of India observed as
“Normally, when a witness deposes
contrary to the stand of the prosecution
and his own statement recorded under
Section 161 CrPC, the prosecutor, with
the permission of the court, can pray to
the court for declaring that witness
hostile and for granting leave to crossexamine the said witness. If such a
permission is granted by the court then
the witness is subjected to crossexamination by the prosecutor as well as an opportunity is provided to the
defence to cross-examine such
witnesses, if he so desires. In other
words, there is a limited examination-inchief, cross-examination by the
prosecutor and cross-examination by
the counsel for the accused. It is
admissible to use the examination-inchief
as well as the cross-examination of the said witness insofar as it supports
the case of the prosecution.”
“Normally, when a witness deposes
contrary to the stand of the prosecution
and his own statement recorded under
Section 161 CrPC, the prosecutor, with
the permission of the court, can pray to
the court for declaring that witness
hostile and for granting leave to crossexamine the said witness. If such a
permission is granted by the court then
the witness is subjected to crossexamination by the prosecutor as well as an opportunity is provided to the
defence to cross-examine such
witnesses, if he so desires. In other
words, there is a limited examination-inchief, cross-examination by the
prosecutor and cross-examination by
the counsel for the accused. It is
admissible to use the examination-inchief
as well as the cross-examination of the said witness insofar as it supports
the case of the prosecution.”
Rameshbhai Mohanbhai Koli and Others Vs State of Gujarat - (2011) 11 SCC 111
“It is settled legal proposition that
the evidence of a prosecution witness
cannot be rejected in toto merely
because the prosecution chose to treat him as hostile and cross-examined him.
The evidence of such witnesses cannot
be treated as effaced or washed off the
record altogether but the same can be
accepted to the extent that their version is found to be dependable on a
careful scrutiny thereof."
the evidence of a prosecution witness
cannot be rejected in toto merely
because the prosecution chose to treat him as hostile and cross-examined him.
The evidence of such witnesses cannot
be treated as effaced or washed off the
record altogether but the same can be
accepted to the extent that their version is found to be dependable on a
careful scrutiny thereof."
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