Embed Size (px)
Citation preview
JUDICIAL TRAINING & RESEARCH INSTITUTE, U.P.,
LUCKNOW
Quarterly Digest
CONSTITUTIONAL, CIVIL, CRIMINAL & REVENUE LAWS (Covering important judgments of Supreme Court and Allahabad High Court)
January to March, 2018
Volume: XX Issue No.: 1
Director
EDITOR-IN-CHARGE
Sri Anoop Kumar Goel, Addl. Director
(REDITORS
Dr. Babbu Sarang, Addl. Director (Research) Sudhir Kumar – V, Addl. Director (Trg.)
Pradeep Kumar Singh, Addl. Director (Admin.) Pankaj Jaiswal, Dy. Director
Mohinder Kumar, Dy. Director Saurabh Saxena, Dy. Director
FINANCIAL ADVISOR
Ram Prakash Pal, Addl. Director (Finance)
ASSOCIATE
B.K. Mishra, Research Officer
ASSISTANCE
Waqar Hasan Girish Kumar Singh
Anoop Kumar
SUBJECT INDEX
(Supreme Court)
Sl. No. Name of Act
1. Administration of Justice
2. Administrative Law
3. Advocates Act
4. Arbitration Act
5. Arbitration and Conciliation Act
6. Arms Act
7. Bail
8. Civil Procedure Code
9. Constitution of India
10. Contract Act
11. Court Fees Act
12. Criminal Procedure Code
13. Criminal Trial
14. Evidence Act
15. Hindu adoption and Maintenance Act
16. Hindu Marriage Act
17. Hindu Minority and Guardianship Act
18. Hindu Succession Act
19. Indian Penal Code
20. Interpretation of Statutes
21. Juvenile Justice (Care and Protection of Children) Act
22. Juvenile Justice (Care and Protection of Children)
Model Rules
23. Land Acquisition Act
24. Motor Vehicles Act
25. Negotiable Instruments Act
26. Practice and Procedure
27. Prevention of Money Laundering Act
28. Provincial Small Cause Courts Act
29. Public Premises (Eviction of Unauthorized Occupants)
Act
30. Rent Control Laws
31. Right to Fair Compensation and Transparency in Land
Acquisition, Rehabilitation and Settlement Act
32. Right to Information Act
33. Service Law
34. Specific Relief Act
35. Stamp Act
36. Succession Act
37. Transfer of Property Act
38. Words and Phrases
SUBJECT INDEX
(High Court)
Sl. No. Name of Act
1. Civil Procedure Code
2. Constitution of India
3. Criminal Procedure Code 4. Hindu Marriage Act 5. Indian Penal Code 6. Interpretation of Statutes
7. Juvenile Justice (Care and Protection of Children) Act 8. Land Acquisition Act 9. Legal Services Authorities Act 10. Motor Vehicles Act
11. Provincial Small Cause Courts Act
12. Railways Act 13. Right to fair compensation and Transparency in Land
Acquisition, Rehabilitation and Resettlement Act
14. Service Law
15. Stamp Act 16. Statutory Provisions
17. Transfer of Property Act
18. U.P. Urban buildings (Regulation of Letting, Rent and Eviction)
Act
19. U.P.Z.A. & L.R. Act
20. Wakf Act
21. Words and Phrases
22. Legal Quiz
NOTE: This journal is meant only for reference and guidance. For authentic
detailed information, readers are advised to consult referred
Journal(s).
LIST OF THE CASES COVERED IN THIS ISSUE
(SUPREME COURT)
Sl. No. Name of the Case & Citation
1. Ahsan V. State of U.P. 2017 (8) Supreme 665 : 2018 Cr.L.J.
95 (SC)
2. Amardeep Singh V. Harveen Kaur, 2018(1) ARC 337 S.C.
3. Anil Kumar Singh V. Vijay Pal Singh & Ors., 2017(13)
SCALE 756
4. Anil Kumar Yadav V. State (NCT) of Delhi 2018 (1)
Supreme 109
5. Anil V. New India Assurance Co. Ltd. 2018 (1) Supreme
135
6. Ankur Kapoor V. Oriential Insurance Co. Ltd. 2017(8)
Supreme 202
7. Athul Rao V. State of Karnataka 2017 (8) Supreme 578
8. Authorized Officer, State Bank of Travancore V. Mathew
K.C. 2018 (1) Supreme 471
9. B. Sunitha V. The State Of Telangana 2018 (1) Supreme 190
: 2018 Cr.L.J. 715
10. Baj Balam Prasad V. State of Bihar 2018 (1) Supreme 12
11. Balwant Vithal Kadam V. Sunil Baburaoi Kadam. 2018 (1)
SCALE 35: AIR 2018 SC 49
12. Barun Chandra Thakur V. Central Bureau Of Investigation
2018 (1) Supreme 172
13. C. Venkata Swamy V. H.N. Shivanna (D) by L.R. 2018 (1)
Supreme 79: 2017 (14) SCALE 14:2018(1) ARC 49
14. C. Venkata Swamy V. H.N. Shivanna (Dead) by Legal
Representative, (2018) 1 SCC 604
15. Chand Devi Daga V. Manju K. Humatani, (2018) 1 SCC 71
16. Chandpaklal Ramanlal Shah V. Reliance Industries Ltd.,
2018 Cr.L.J. 490 (SC)
17. Commissioner of Income Tax V. Ms. Essar Teleholdings
Ltd. through its Manager 2018 (1) Supreme 557
18. Commissioner of Service Tax Etc. V. M/s. Bhayana Builders
Pvt. Ltd. 2018 (2) Supreme 143
19. Dalip Singh V. Bhupinder Kaur 2018 (2) Supreme 35
20. Danamma @ Suman Surpur V. Amar 2018 (1) Supreme
538: 2018(1) SCALE 657
21. Dharmabiri Rana V. Promod Kumar Sharma,AIR 2017 SC
5431
22. Dinesh Kumar J. V. National Insurance Co. Ltd., 2018 ACJ
535 (SC)
23. Dineshbhai Chandubhai Patel V. State of Gujarat, 2018 (1)
Supreme 66
24. Dr. Nazrul Islam V. Union of India 2017 (14) SCALE 235
25. Flora Elias Nohoum V. Indrish Ali Laskar 2018(1) Supreme
350
26. Gaurav Pradhan V. State of Rajasthan 2017 (8) Supreme
561
27. Girish Kumar Suneja V. C.B.I., 2017 Cr.L.J. 4980 (SC)
28. H.V.Nirmala V. R.Sharmila, 2018 (1) Supreme 339
29. Halappa V. Malik Sab, 2018 ACJ 686 (SC)
30. Hem Raj V. Oriental Insurance Co. Ltd., 2018 ACJ 5 (SC)
31. I.C. Sharma V. Oriental Insurance Co. Ltd., 2018 ACJ 542
(SC)
32. Indiabulls Housing Finance Ltd. Vs. M/s Deccan Chronicle
Holdings Ltd. 2018 (2) Supreme 40
33. Indian Oil Corporation Limited V. State of Bihar 2017 (8)
Supreme 361
34. Issac @ Kishor V. Ronald Cheriyan 2018 (1) Supreme 482
35. Jagtar Singh @ Jagdev Singh V. Sanjeev Kumar and others,
2018 (1) SCALE 3
36. Jaiprakash V. T.S. David 2018 (1) Supreme 337
37. Jaswant Singh V. Parkash Kaur, AIR 2017 SC 5275
38. Jayant Verma & Ors. v. Union of India & Ors. 2018 (3)
SCALE 156
39. Joseph V. State of Tamil Nadu, 2018 (1) Supreme 197 : AIR
2018 SC 93
40. Kalawati (D) Through LRS. V. Rakesh Kumar 2018(3)
SCALE 32
41. Kamini Jaiswal V. Union of India, AIR 2017 SC 5334 : 2018
Cr.L.J. 1068
42. Kanachur Islamic Education (R) V. Union of India 2017 (8)
Supreme 684
43. Kara Bhai V. State of Gujarat 2018 (1) Supreme 119 : 2018
Cr.L.J. 1138 (SC)
44. Karan Singh Tyagi V. State of U.P. 2017 (8) Supreme 268
45. Kaushal Kishore Awasthi V. Balwant Singh Thakur, AIR
2018 SC 199
46. Khekh Ram V. State of H.P. 2017 (8) Supreme 269 : (2018) 1
SCC 202
47. Lachhaman Dass V. Resham Chand Kaler 2018 (1)
Supreme 486
48. Latesh @ Dadu Baburao Karlekar V. The State of
Maharashtra 2018 (1) Supreme 524
49. Laxmidhar Nayak V. Jugal Kishore Behera , 2017 (13)
SCALE 718
50. Life Insurance Corporation of India V. Nandini J. Shah
2018 (1) Supreme 705
51. Lok Nath Pandey v. State of U.P., 2018 Cr.L.J. 400 (SC)
52. Lt. Col. Prasad Shrikant Purohit V. State of Maharashtra
2017 (8) Supreme 353
53. Lynette Fernandes V. Gertie Mathias (since deceased) by
LRs, (2018) 1 SCC 271: AIR 2017 SC 5453:2017(8) Supreme
654
54. M/S Indian Farmers Fertilizer Cooperative Ltd. V. M/S
Bhadra Products, 2018 (1) Supreme 306
55. M/s. India Farmers Fertilizer Co-operative Limited V. M/s.
Bhadra Products, 2018 (1) Scale 442
56. M/S. Neerja Realtors Pvt. Ltd. V. Janglu (Dead) Thr. Lr
2018(1) Supreme 379
57. Maharashtra State Electricity Distribution Company Ltd.
V. M/s Datar Switchgear Ltd. 2018 (1) Supreme 424
58. Mahavir V. Union of India, 2018 (1) SCALE 174
59. Management of Bharat Heavy Electricals V. M. Mani, 2017
(8) Supreme 225
60. Mansukhbhai Dhamjibhai Patel V. State of Gujarat, 2017
(14) SCALE 239
61. Maya Devi (d) Through LRs. V. State of Haryana, 2018 (1)
SCALE 501
62. Mohidner Kumar Mehra V. Roop Rani Mehra, 2017 (14)
SCALE 223
63. Mr. Ranvir Dewan V. Mrs. Rashmi Khanna, 2017 (4)
SCALE 201
64. Ms Eera, through Dr. Manjula Krippendorf V. State (Govt.
of NCT of Delhi), 2018 Cr,L,J, 186 (SC)
65. Munusamy V.The Managing Director, Tamil Nadu State
Transport Coorporation (Villupuram) Ltd. 2018 (2) SCALE
389
66. Muthukrishnan (Dead) by L.RS. V. S.T. Reddiar
Educational & Charitable Trust & Ors. 2018 (3) SCALE
318
67. N. Harihara Krishnan V. J. Thomas 2017 (8) Supreme 674
68. N.C. Bansal V. UP Financial Corporation 2018 (1) Supreme
329
69. Nagaiah V. (Smt. Chowdamma dead) By LRs. 2018 (1)
Supreme 491
70. Nanjegowda @ Gowda (D) by LRs. V. Ramegowda 2018 (1)
Supreme 83
71. Nasiruddin V. State of Uttar Pradesh, AIR 2018 SC 127
72. National Insurance Company Limited V. Pranay Sethi, AIR
2017 SC 5157
73. National Kamgar Union V. Kran Rader Pvt. Ltd., 2018 (1)
Supreme 240
74. National Kamgar Union V. Kran Rader Pvt. Ltd., 2018 (1)
Supreme 240
75. Nikesh Tarachand Shah V. Union of India 2017 (8) Supreme
529
76. Nitya Dharmananda @ K. Lenin V. Sri Gopal Sheelum
Reddy also Known as Nithya Bhaktananda 2018(1)
Supreme 170 : 2017 (14) SCALE 319
77. P. Ramadas V. State of Kerala 2018 (1) Supreme 756
78. Pankajbhai Rameshbhai Zalavadia V. Jethabhai Kalabhai
Zalavadiya, AIR 2018 SC 490
79. Pratima Das @Arati Das V. Subudh Das 2018 (3) SCALE
154
80. Purvi Mukesh Gada v. Mukesh Popatlal Gada, AIR 2017
SC 5407
81. Rajendra Rajoriya V. Jagat Narain Thapak 2018 (2)
Supreme 100
82. Rakesh Kumar Paul V. State of Assam, 2018 Cr.L.J. 155
(SC)
83. Ran Vijay Singh V. State of U.P., AIR 2018 SC 52
84. Ranvir Dewan V. Mrs. Rashmi Khanna, AIR 2018 SC 62
85. Ratanlal @ Babulal Chunilal SamsukaV. Sundarabai
Govardhandas Thr. LRs. & Ors. 2017(13) SCALE 763
86. Reliance General Insurance Company Ltd. V. Shalu
Sharma, 2018 (1) Supreme 469
87. Rohit Tandon V. The Enforcement Directorate 2017 (8)
Supreme 249: 2018 Cr.L.J. 416 (SC)
88. Samar Kumar Roy V. Jharna Bera, AIR 2018 SC 334
89. Sampurna Behura V. Union of India 2018 (1) Supreme 642
90. Selvaraj V. State by Inspector of Police, Tamil Nadu, 2018
(1) Supreme 553
91. Shivaji Balaram Haibatti V. Sri Avinash Maruthi Pawar,
AIR 2017 SC 5494
92. Shri Nagar Mal V. The Oriential Insurance Company Ltd.
2018 (1) Supreme 133
93. Shyam Narayan Chouksey V. Union of India, 2018 (1)
Supreme 291: 2018(1) SCALE 197
94. Smt. Subhdra V. The Ministry of Coal and Anr. 2018 (1)
SCALE 560
95. State by the Inspector of Police, Chennai V. S. Selvi and
Another, 2018 (1) SCALE 5 : AIR 2018 SC 81
96. State of Goa v. Jose Maria Albert Vales @ Robert Vales
2017 (8) Supreme 586
97. State of Himachal Pradesh V. Raj Kumar 2018 (1) Supreme
103
98. State of Himachal Pradesh V. Raj Kumar 2018 (1) Supreme
103
99. State of Jharkhand V. M/s Hindustan Construction Co.
Ltd., AIR 2018 SC 1
100. State of Madhya Pradesh through Principal Secretary V.
Mahendra Gupta, 2018(1) Supreme 674
101. Subhash Chander Bansal V. Gian Chand 2018 (1) Supreme
342
102. Sundaram Finance Limited V. Abdul Samad and another,
2018 (36) LCD 568
103. Sunkamma (d) by LRs v. Pushparaj (D) by LRs. 2017 (14)
SCALE 322
104. Suraj Narain Kapoor v. Pradeep Kumar,AIR 2017 SC 5046
105. Surat Singh (Dead) V. Siri Bhagwan 2018 (2) Supreme 137
: 2018 (3) SCALE 246
106. Surender Singh V. State of Haryana 2018 (2) Supreme 115
107. Suresh Kumar through GPA V. Anil Kakaria, (2018)1 SCC
86
108. Suresh Kumar V. Anil Kakaria, AIR 2017 SC 5239
109. Suresh Kumar Wadhwa V. State of M.P. AIR 2017 SC 5435
110. Susme Builders Pvt. Ltd V. Chief Executive Officer, Slum
Rehabilitation Authority 2018 (1) Supreme 385
111. Teesta Atul Setalvad v. State of Gujarat, AIR 2018 SC 27
112. The State of Himachal Pradesh V. Trilok Chand 2018(1)
Supreme 326
113. Trilok Singh Chauhan V. Ram Lal (Dead) Thr. LRs, 2017
(14) SCALE 217
114. Union Public Service Commission V. Angesh Kumar, 2018
(2) Supreme 60
115. Union Territory, Chandigarh Administration V. Pradeep
Kumar, (2018) 1 SCC 797 : AIR 2018 SC 376
116. United India Insurance Co. Ltd. V. Sunil Kumar, 2018 ACJ
1 (SC)
117. Upendra Singh V. State of Bihar 2018 (1) Supreme 746
118. Urmila Devi V. Deity, Mandir Shree Chamunda Devi,
through Temple Commissioner 2018 (1) Supreme 501
119. Uttarakhand Transport Corporation (Earlier known as
UPSRTC) V. Sukhveer Singh 2017(8) Supreme 282
120. Varala Bharath Kumar V. State of Telangana 2017 (8)
Supreme 324
LIST OF THE CASES COVERED IN THIS ISSUE
(HIGH COURT)
Sl. No. Particulars
1. Abhishek Shukla V. High Court of Judicature, Allahabad,
AIR 2018 All. 32
2. Abid Khan V. Smt. Maya Devi, AIR 2018 All. 27
3. Ajit Singh v. Union of India, AIR 2018 (NOC) 111 (All.)
4. Arun Kumar Gupta v. Santosh Kumar, AIR 2018 All. 11
5. Brij Gopal Mishra v. Dr. Manorama Srivastava, AIR 2018
(NOC) 89 (All)
6. Dr. (Smt.) Chhaya Rastogi v. State of U.P. and another,
2018 (102) ACC 94
7. Har Dayal and others v. Mewa Ram and others, 2018 (36)
LCD 349
8. Harish Chandra v. Rahul Kumar, AIR 2018 All. 1
9. Jag Mohan V. The Commissioner and other 2018 (36) LCD
373
10. Jahan Singh v. State of U.P., AIR 2017 All 247
11. Mahesh Chandra V. Sri Bishan Dayal, 2018 (1) ARC 343
12. Manglu Prasad V Union of India, 2018 ACJ 393 (All)
13. Mast Ram Tiwari v. State of U.P. and others, 2018 (36) LCD
516 (FB)
14. Mehtab Laiq Ahmed Shaikh v. State of Maharashtra, AIR
2018 Bom 1 (FB)
15. Narayan Prasad Sarswat v. Smt. Shaifali alias Muniya, AIR
2018 (NOC) 90 (All.)
16. Oriental Insurance Co. Ltd. V. Rajesh Devi, 2018 ACJ 301
(All)
17. Pratap Singh V. Board of Revenue and others, 2017 (6)
AWC 6310
18. Raj Kumar v. State of U.P., AIR 2018 All 253
19. Renu Singh v. Promod Kumar Singh, AIR 2018 (NOC) 48
(All.)
20. Sahibzada Moinuddin Siddiqui V. U.P. Sunni Central
Board of Wakfs and others, 2018 (1) AWC 765
21. Sandeep Bajpai V. Union of India and others, 2018 (1) AWC
1024
22. Sanjay Kumar Singh V. State, 2018 ALJ 286
23. Sanjeev Kumar Gupta V. State of U.P. , 2018 (1) ALJ 276
24. Sarswat v. Smt. Shaifali alias Muniya, AIR 2018 (NOC) 90
(All.)
25. Satya Prakash and others v. District Judge, Sultanpur and
others, 2018 (1) AWC 877
26. Shri Niwas V. State of U.P., AIR 2018 (NOC) 210 (All.)
27. Smt. Asha Kapoor V. State of U.P., 2018 (36) LCD 410
28. Smt. Priyanka Devi V. State of U.P., 2018 (2) ALJ 203
29. Smt. Rajani V. Pratipal Singh 2017 (6) AWC 6402
30. U.P. State Road Transport Corp. V. Indra Raj Verma, AIR
2018 All 6
31. Victoria V. Yesuraj Kumar, AIR 2018 Ker 27(FB)
32. Vyasdhar V. A.D.J., Gonda, 2018 (1) AWC 730
Part –I (Supreme Court)
Administration of Justice:
Abatement –Sole assessee dying during litigation – Case abates.
Insofar as Civil Appeal No. 3247 of 2015 is concerned, where the assessee is
Gurmehar Construction, it may additionally be noted (as pointed out by the learned
counsel for the respondent) that the assessee was a sole proprietorship concern of Mr.
Narender Singh Atwal, who died on February 24, 2014. This is so stated in the counter
affidavit filed by the respondent on May 16, 2017 and this position has not been
disputed by the Department. This appeal, in any case, has abated as well in view of the
judgment of this Court in Shabina Abraham & Ors. v. Collector of Central Excise &
Customs2 2 (2015) 10 SCC 770. Commissioner of Service Tax Etc. V. M/s. Bhayana
Builders Pvt. Ltd. 2018 (2) Supreme 143
Judicial propriety - High Court giving liberty to respondent to apply to trial court for
further investigation – Does not constitute a direction to trial court to order further
investigation
Merely because liberty was given to respondent no. 2 by the High Court in the
judgment dated 21st October, 2013, it would not follow that the Trial Court was
obliged to issue directions for further investigation at the instance of respondent no. 2
and sans recording satisfaction that further investigation was necessary in the fact
situation of the case. On the other hand, the Trial Court has given tangible reasons
why further investigation was not necessary, which have not been analyzed by the
High Court at all, much less overturned.
Considering all aspects of the matter, therefore, we are of the view that the
High Court committed manifest error in interfering with the discretionary order passed
by the Trial Court in the fact situation of the present case. In other words, the Trial
Court had rightly rejected the prayer of respondent no. 2 for further investigation, for
the reasons noted in its order dated 7th August, 2014. Athul Rao V. State of Karnataka
2017 (8) Supreme 578
Restitution – Grant of – Not a matter of right, but discretion – Hardships on both sides
must be looked at.
It will be noticed, on a reading of para 23 of Bharat Ferro Alloys (supra), that
ultimately restitution is not a matter of right, but is a matter of discretion, and that
hardships on both sides must be looked at in order to find a pragmatic solution by way
of restitution. Given the fact that the state continued with the grant of set off till the
year 2014, and reopened assessments beginning from 2008 – 09 based on an audit
objection, we are of the view that it would be highly inequitable at this juncture to
allow the State to charge interest, which would arise as a result of stay orders being
passed in the writ petitions. Indian Oil Corporation Limited V. State of Bihar 2017 (8)
Supreme 361
Administrative Law:
Natural Justice - Reasonable opportunity of hearing – Synonymous to ‘fair hearing’
Reasonable opportunity of hearing which is synonymous to ‘fair hearing’, it is
not longer res integra is an important ingredient of audi alteram partem rule and
embraces almost every facet of fair procedure. The rule of ‘fair hearing’ requires that
the affected party should be given an opportunity to meet the case against him erring
takes within its fold a just decision supplemented by reasons and rationale.
Reasonable opportunity of hearing or right to ‘fair hearing’ casts a steadfast and
sacrosanct obligation on the adjudicator to ensure fairness in procedure and action, so
much so that any remiss or dereliction in connection therewith would be at the pain of
invalidation of the decision eventually taken. Every executive authority empowered to
take an administrative action having the potential of visiting any person with civil
consequences must take care to ensure that justice is not only done but also
manifestly appears to have been done. Kanachur Islamic Education (R) V. Union of
India 2017 (8) Supreme 684
Advocates Act:
Ss. 35, 49(1)(c) - Bar Council of India Rules (1975), Part VI, Chap. II
– Standards of Professional Conduct and Etiquette, R. 22 –
Professional misconduct – Determinations.
In the instant case, the complainant was selling the property to the
intending buyer which was an arrangement between them unconnected
with any legal proceedings. The said property was not being sold in
execution of any decree, in which proceedings the appellant was engaged,
as noted above. Insofar as the filing of the Suit by the appellant on behalf
of the complainant is concerned, that had resulted into passing of decree
and the proceedings had concluded. Even as per the complainant's own
admission, it is much thereafter that the complainant intended to sell the
property in question when he found himself in need of money. It is this
sale which the appellant tried to interdict. He was not doing so in the
capacity of an Advocate. As per him, the complainant was not authorised
to sell the property without repaying his debt. Whether the appellant was
right in this submission or not, is not relevant. What is relevant is that this
act has nothing to do with the professional conduct of the appellant.
Therefore, the very initiation of disciplinary proceedings against the
appellant by the State Bar Council was improper and without jurisdiction.
Kaushal Kishore Awasthi v. Balwant Singh Thakur, AIR 2018 SC
199.
Arbitration Act:
Ss. 14(2), 2(c), 31(4) – Filling of award in Court – Jurisdiction when application is made
in reference to competent Court – That Court alone shall have jurisdiction over
arbitration proceedings
Definition of the term ‘Court’ in the dictionary clause and the meaning of the
word ‘Court’ as employed in Section 31(4) of the Act and appreciating the same in the
context of the provisions and also taking note of the scheme of the Act, Supreme
Court find that the construction placed in Guru Nanak Foundation (supra) suffers from
a fundamental fallacy. The language used in Section 31(4) of the Act commences with
the non-obstante clause. The said part of the provision has to be understood in the
textual context because primarily the provision is an enabling one and the real
intendment that is conveyed through the vehicle of expressive language is that where
any application has been made in a reference under the Act as regards the Court
which has competence to entertain an application, that court alone shall have the
jurisdiction over the arbitration proceedings. The purpose behind the said provision is
to avoid conflict in the exercise of jurisdiction and to inject the intention of certainty of
the jurisdictional court keeping in view the scheme of the Act which is meant to
facilitate the process of arbitration and see the finality of the post award proceedings.
Therefore, it is difficult to accept that the Supreme Court can assume original
jurisdiction, solely because of control over the proceedings, for original jurisdiction has
been conferred upon the Supreme Court under Articles 32 and 131 of the
Constitution. Said original jurisdiction is not available to this Court in respect of a
dispute that finds mention in Article 262 of the Constitution. Court competent to
entertain the reference will have the jurisdiction to deal with the objections to the
award or any post award proceeding. Superior court is not expected in law to assume
jurisdiction on the foundation that it is a higher court and further opining that all
contentions are open. The legislature, in its wisdom, has provided an appeal under
Section 39 of the Act. Solely because a superior court appoints the arbitrator or issues
directions or has retained some control over the arbitrator by requiring him to file the
award in this Court, it cannot be regarded as a court of first instance as that would go
contrary to the definition of the term ‘court’ as used in the dictionary clause as well as
in Section 31(4). Simply put, the principle is not acceptable because this Court cannot
curtail the right of a litigant to prefer an appeal by stating that the doors are open to
this Court and to consider it as if it is an original court. Original jurisdiction in this Court
has to be vested in law. Unless it is so vested and the Court assumes, the court really
scuttles the forum that has been provided by the legislature to a litigant. Supreme
Court may make a reference to an arbitrator on consent but to hold it as a legal
principle that it can also entertain objections as the original court will invite a
fundamental fallacy pertaining to jurisdiction. State of Jharkhand V. M/s Hindustan
Construction Co. Ltd., AIR 2018 SC 1
Arbitration and Conciliation Act:
Ss. 2(c), 16, 31,32,34 & 37- Interim arbitral award- Scope of
As can be seen from Section 2(c) and Section 31(6), except for
stating that an arbitral award includes an interim award, the Act is silent
and does not define what an interim award is. We are, therefore, left
with Section 31(6) which delineates the scope of interim arbitral awards
and states that the arbitral tribunal may make an interim arbitral award on
any matter with respect to which it may make a final arbitral award.
The language of Section 31(6) is advisedly wide in nature. A
reading of the said sub-section makes it clear that the jurisdiction to make
an interim arbitral award is left to the good sense of the arbitral tribunal,
and that it extends to “any matter” with respect to which it may make a
final arbitral award.
To complete the scheme of the Act, Section 32(1) is also material.
This section goes on to state that the arbitral proceedings would be
terminated only by the final arbitral award, as opposed to an interim
award, thus making it clear that there can be one or more interim awards,
prior to a final award, which conclusively determine some of the issues
between the parties, culminating in a final arbitral award which ultimately
decides all remaining issues between the parties.
An interim award or partial award is a final award on matter
covered therein made at an intermediate stage of the arbitral proceedings
Tested in the light of the statutory provisions and the case law cited above, it
is clear that as the learned Arbitrator has disposed of one matter between the parties
i.e. the issue of limitation finally, the award dated 23 rd July, 2015 is an “interim
award” within the meaning of Section 2(1)(c) of the Act and being subsumed within
the expression “arbitral award” could, therefore, have been challenged under Section
34 of the Act. M/s. India Farmers Fertilizer Co-operative Limited V. M/s. Bhadra
Products, 2018 (1) Scale 442
Sec. 16 – Jurisdiction – Depends to certain extent on the context – Arbitral decision on
point of limitation would not go to jurisdiction – Sec. 16 not attracted.
That “jurisdiction” is a coat of many colours, and that the said word
displays a certain colour depending upon the context in which it is
mentioned, is well-settled. In the classic sense, in Official Trustee v.
Sachindra Nath Chatterjee, (1969) 3 SCR 92 at 99, “jurisdiction” is stated
to be:
“In the order of Reference to a Full Bench in the case of Sukhlal v. Tara
Chand [(1905) ILR 33 Cal 68] it was stated that jurisdiction may be defined to
be the power of a Court to hear and determine a cause, to adjudicate and
exercise any judicial power in relation to it: in other words, by jurisdiction is
meant the authority which a Court has to decide matters that are litigated
before it or to take cognizance of matters presented in a formal way for its
decision. An examination of the cases in the books discloses numerous
attempts to define the term ‘jurisdiction’, which has been stated to be ‘the
power to hear and determine issues of law and fact’, the authority by which
the judicial officer take cognizance of and ‘decide causes’; ‘the authority to
hear and decide a legal controversy’, ‘the power to hear and determine the
subject-matter in controversy between parties to a suit and to adjudicate or
exercise any judicial power over them;’ ‘the power to hear, determine and
pronounce judgment on the issues before the Court’; ‘the power or authority
which is conferred upon a Court by the Legislature to hear and determine
causes between parties and to carry the judgments into effect’; ‘the power to
enquire into the facts, to apply the law, to pronounce the judgment and to
carry it into execution’.”
M/S Indian Farmers Fertilizer Cooperative Ltd. V. M/S Bhadra Products, 2018
(1) Supreme 306
Sec. 34 – Amendment in arbitration petition as well as appeal – Belated – Rightly
rejected by High Court
In this case three chamber summons were taken out by the appellant during
the pendency of this appeal before the Division Bench. By these chamber summons,
the appellant intended to amend the petition which was filed by it under Section 34 of
the Act as well as the appeal. The High Court after detailed discussion in the impugned
judgment rejected these summons. We find that the amendment sought was highly
belated. Arbitration petition filed under Section 34 of the Act was sought to be
amended after a delay of eight years. Further, the amendment in the appeal, taking
those very grounds on which amendment in the arbitration petition was sought, was
sought after a delay of 3½ years. The High Court, thus, rightly rejected these summons.
Maharashtra State Electricity Distribution Company Ltd. V. M/s Datar Switchgear Ltd.
2018 (1) Supreme 424
Sec. 36- Arbitration Award - Enforcement of
The enforcement of an award through its execution can be filed anywhere in
the country where such decree can be enforced. There is no requirement for obtaining
a transfer of the decree from the Court which would have jurisdiction over the arbitral
proceedings. Sundaram Finance Limited V. Abdul Samad and another, 2018 (36) LCD
568
Arms Act:
Ss. 27(2) and 27(3) – Acquittal under – On the sole ground of non-obtaining of prior
sanction from District Magistrate to prosecute – Of no avail in conviction u/s 302 IPC.
Insofar as the conviction of the Sahayam (A3), an attempt was made that he
cannot be convicted under Section 302 IPC as Selvaraj (A2) and Sahayam (A3) were
acquitted under Section 27(2) and Section 27(3) of the Arms Act, 1959. As rightly
contended by the learned counsel for the State, the sole reason for acquittal under
Section 27(2) and Section 27(3) of the Arms Act is non-obtaining of prior sanction from
District Magistrate to prosecute the accused under the Arms Act. Hence, the acquittal
of the accused Nos. 2 and 3 under Section 27(2) and Section 27(3) of the Arms Act is of
no avail to accused No. 3. Joseph V. The State of Tamil Nadu 2018 (1) Supreme 197
Bail:
Grant of - Depends upon variety of circumstances – Varying from case to case.
The provision of bail goes back to Magna Carta itself. Clause 39, which was, at
that time, written in Latin, is translated as follows:
“No free man shall be seized or imprisoned or stripped of his rights or
possessions, or outlawed or exiled, or deprived of his standing in any other
way, nor will we proceed with force against him or send others to do so,
except by the lawful judgment of his equals or by the law of the land”
In Bushel’s case, decided in 1670, Chief Justice Sir John Vaughan was able to
state that, “the writ of habeas corpus is now the most usual remedy by which a man is
restored again to his liberty, if he have been against law deprived of it.” Despite this
statement of the law, one Jenkes was arrested and imprisoned for inciting persons to
riot in a speech, asking that King Charles II be petitioned to call a new Parliament.
Jenkes went from pillar to post in order to be admitted to bail. The Lord Chief Justice
sent him to the Lord Chancellor, who, in turn, sent him to the Lord Treasurer, who sent
him to the King himself, who, “immediately commanded that the laws should have
their due course.” )See Jenke’s case, 6 How. St. Tr. 1189 at 1207, 1208 (1676)). It is
cases like these that led to the next great milestone of English history, namely the
Habeas Corpus Act of 1679. This Act recited that many of the King’s subjects have
been long detained in prison in cases where, by law, they should have been set free on
bail. The Act provided for la habeas corpus procedure which plugged legal loopholes
and even made the King’s Bench Judges subject to penalties for non-compliance.
What is important to learn from this history is that clause 39 of Magna Carta
was subsequently extended to pre-trial imprisonment, so that persons could be
enlarged on bail to secure their attendance for the ensuing trial. It may only be added
that one century after the Bill of Rights, the US Constitution borrowed the language of
the Bill of Rights when the principle of habeas corpus found its way into Article 1
Section 9 of the US Constitution, followed by the Eighth Amendment to the
Constitution which expressly states that, “excessive bail shall not be required, nor
excessive fines imposed, nor cruel and unusual punishments inflicted”. We may only
add that the Eighth Amendment has been read into Article 21 by a Division Bench of
this Court in Rajesh Kumar V. State through Govt. of NCT of Delhi (2011)13 SCC
706:92011) 6 Supreme 514, at paragraphs 60 and 61. Nikesh Tarachand Shah V. Union
of India 2017 (8) Supreme 529
Civil Procedure Code:
Sec. 9 – Specific Relief Act Sec. 34 – Jurisdiction of Civil Court –
Whether barred – Sit for declaration of title including declaration as
to legal character of alleged marriage between parties to suit – Suit
filed under Act of 1963 and not under Hindu Marriage Act or Special
Marriage Act – Jurisdiction of Civil Court, not barred.
It is clear that the examination of the remedies provided and the
scheme of the Hindu Marriage Act and of the Special Marriage Act show
that the statute creates special rights or liabilities and provides for
determination of rights relating to marriage. The Acts do not lay down
that all questions relating to the said rights and liabilities shall be
determined only by the Tribunals which are constituted under the said
Act. Section 8(a) of the Family Courts Act excludes the Civil Court's
jurisdiction in respect of a suit or proceeding which is between the parties
and filed under the Hindu Marriage Act or Special Marriage Act, where
the suit is to annul or dissolve a marriage, or is for restitution of conjugal
rights or judicial separation. It does not purport to bar the jurisdiction of
the Civil Court if a suit is filed under Section 34 of the Specific Relief Act
for a declaration as to the legal character of an alleged marriage. Also as
was pointed out, an exclusion of the jurisdiction of the civil courts is not
readily inferred. Given the line of judgments referred to by the High
Courts, and given the fact that a suit for declaration as to legal character
which includes the matrimonial status of parties to a marriage when it
comes to a marriage which allegedly has never taken place either de jure
or de facto, it is clear that the civil court's jurisdiction to determine the
aforesaid legal character is not barred either expressly or impliedly by any
law. Samar Kumar Roy V. Jharna Bera, AIR 2018 SC 334.
Sec. 96 r/w O. 41 R. 31 – High Court dismissing first appeal cursorily without
appreciating evidence, dealing with the issues and discussing the arguments raised by
parties – Not sustainable.
The need to remand the case to the High Court has occasioned for the reason
that the Single Judge dismissed the appeals very cursorily and without undertaking any
appreciation of evidence, dealing with various issues arising in the case and discussing
the arguments raised by the parties in support of their case. In other words, the
disposal of the two first appeals could not be said to be in conformity with the
requirements of Sec. 96 read with O. 41 R. 31 of the Code.
It is settled principle of law that a right to file first appeal against the decree
under Sec. 96of the Code is a valuable legal right of the litigant. The jurisdiction of the
first Appellate Court while hearing the first appeal is very wide like that of the Trial
Court and it is open to the appellant to attack all findings of fact or /and of law in first
appeal. It is the duty of the first Appellate Court to appreciate the entire evidence and
arrive at its own independent conclusion, for reasons assigned, either of affirmace or
difference. C. Venkata Swamy V. H.N. Shivanna (D) by L.R. 2018 (1) Supreme 79: 2017
(14) Scale 14:2018(1) ARC 49
Sec. 96 - Interim stay- High Court modifying the order granting stay, dismissing the
application filed by appellants for reconsidering the order –Legality of
It is not in dispute that the impugned orders are interim in nature
having been passed in pending Regular First Appeal filed by the
defendants (respondents herein) against the judgment and decree dated
11.03.2008 passed by the Trial Court in O.S. No.1 of 2003, which decreed
the plaintiffs (appellants’) suit. It is also not in dispute that the first appeal
out of which these appeals arise in which the impugned orders were
passed is still pending for its final disposal.
In a situation where the impugned orders are interim in nature and
when the first appeal in which such impugned orders were passed is still
pending for its final disposal in the High Court, it would be in the interest
of all the parties to the appeal that the appeal itself be disposed of finally
on merits.
So far as the legality of the impugned orders is concerned, suffice it
to say, it being interim in nature, court did not consider it proper to
interfere in such order.
However, it will be open to the parties to approach the High Court
to apply for further modification of the orders and depending upon a case,
the High Court is free to pass appropriate order in accordance with law.
Muthukrishnan (Dead) by L.RS. V. S.T. Reddiar Educational &
Charitable Trust & Ors. 2018 (3) Scale 318
Sec. 96 and Or. 41 R. 31—First appeal—Proper mode of disposal of – Principles
reiterated
It is a settled principle of law that a right to file first appeal against decree u/s.
96 of Code is a valuable legal right of litigant—Jurisdiction of first appellate court while
hearing first appeal is very wide like that of trial court and it is open to appellant to
attack all findings of fact or/and of law in first appeal.
It is duty of first appellate court to appreciate entire evidence and arrive at its
own independent conclusion, for reasons assigned, either of affirmation or difference.
Similarly, powers of first appellate court while deciding first appeal are indeed well
defined by various judicial pronouncements of Supreme Court and are, therefore, no
more res integra.
Remanding case to High Court for deciding appeals afresh on merits in
accordance with law keeping in view observations made above, however, clarified that
refrained from making any observation on merits of controversy. Since appeals are
quite old, High Court to decide appeals expeditiously uninfluenced by any observations
in accordance with law, impugned judgment is set aside. C. Venkata Swamy V. H.N.
Shivanna (Dead) by Legal Representative, (2018) 1 SCC 604
Sec. 100 – High Court allowing second appeal after hearing the appellant only and not
the respondent – Not permissible.
We find that the High Court allowed the second appeal filed by respondent
No. 1 herein without hearing respondent No.4 before it, i.e., (appellant herein). In
other words, the High Court allowed the second appeal after hearing the appellant of
second appeal only and not respondent No.4 of the second appeal, who was absent at
the time of hearing.
When respondent No. 4 (appellant herein) filed an application under Section
151 read with Order 41 Rule 21 of the Code praying for an opportunity of hearing, his
application was dismissed by the High Court.
In our opinion, the High Court erred in deciding the second appeal much less
allowing it without hearing the contesting respondent No.4 (appellant herein) and also
erred in dismissing his application filed under Section 151 read with Order 41 Rule 21
of the Code for rehearing of the second appeal. Surat Singh (Dead) V. Siri Bhagwan
2018 (2) Supreme 137 : 2018 (3) SCALE 246
Sec. 100 – High Court sitting aside concurrent findings of the trial court and the first
appellate court without discussing any evidence – Not permissible.
We fail to understand how the High Court could come to this conclusion. In
the written statement the defendant had denied the averments made in Para 2 of the
plaint. The defendant had denied that he had received Rs. 92,000/- as earnest money.
There was no admission by him of any of the allegations. The reasoning given by the
High Court is specious and cannot stand scrutiny. The High Court did not discuss the
evidence at all and erred in setting aside the concurrent findings of both the Courts.
In view of the above discussion, we allow the appeal, set aside the judgment
of the High Court and restore the decree of the trial court. Dalip Singh V. Bhupinder
Kaur 2018 (2) Supreme 35
Sec. 100 – Instantly, High Court framing substantial question of law and simultaneously
answering it in concluding part of the judgment – Not giving opportunity to
respondent – Unsustainable being without jurisdiction
Here is the case where the High Court was under a legal obligation to frame
the substantial question at the time of admission of the appeal after hearing the
appellant or/and his counsel under sub-section (4) of Section 100 of the Code, but the
High Court did it while passing the final judgment in its concluding para.
Such novel procedure adopted by the High Court, in our considered opinion, is
wholly contrary to the scheme of Section 100 of the Code and renders the impugned
judgment legally unsustainable.
In our considered opinion, the High Court had no jurisdiction to frame the
substantial question at the time of writing of its final judgment in the appeal except to
the extent permitted under sub-section (5). The procedure adopted by the High Court,
apart from it being against the scheme of Section 100 of the Code, also resulted in
causing prejudice to the respondents because the respondents could not object to the
framing of substantial question of law. Indeed, the respondents could not come to
know on which question of law, the appeal was admitted for final hearing.
Yet, the other reason is that the respondents are only required to reply while
opposing the second appeal to the question formulated by the High Court under sub-
section (4) and not beyond that. If the question of law is not framed under sub-section
(4) at the time of admission or before the final hearing of the appeal, there remains
nothing for the respondent to oppose the second appeal at the time of hearing. In this
situation, the High Court will have no jurisdiction to decide such second appeal finally
for want of any substantial question(s) of law. Surat Singh (Dead) V. Siri Bhagwan
2018 (2) Supreme 137
Sec. 100 – Second Appeal – Concurrent findings of facts – Based upon appreciation of
evidence – Are binding in nature – Cannot be interfered with when such findings are
neither perverse nor against provision of law.
In our considered opinion, the findings recorded by the three Courts on facts,
which are based on appreciation of evidence undertaken by the three Courts, are
essentially in the nature of concurrent findings of fact and, therefore, such findings are
binding on this Court. Indeed, such findings were equally binding on the High Court
while hearing the second appeal and it was rightly held by the High Court also.
It is more so when these findings were neither found to be perverse to the
extent that no judicial person could ever record such findings nor these findings were
found to be against the evidence, nor against the pleadings and lastly, nor against any
provision of law. Suresh Kumar V. Anil Kakaria, AIR 2017 SC 5239
Adverse possession – Scope of
There can be no adverse possession among the members of one family for
want of any animus among them over the land belonging to their family. Nanjegowda
@ Gowda (D) by LRs. V. Ramegowda 2018 (1) Supreme 83
O.1, R. 10(1),(2), O.22, R.4, S.11 – Impleadment of legal
representatives – Application for –Application filed under O.22, R.4
for bringing legal representatives, dismissed earlier as not
maintainable on account of death of defendant prior to filing of suit –
Subsequent application under O.1, R.10 for addition of legal heirs,
maintainable – Decision in earlier application under O.22, R.4 cannot
act as res judicata.
The purchaser of the property, i.e. defendant no.7, though dead at
the time of filing the suit, was made one of the defendants erroneously.
The persons who are now sought to be impleaded under Order 1 Rule 10
of the Code are the legal representatives of the deceased defendant no. 7.
Therefore, there cannot be any dispute that the presence of the legal
representatives of the deceased is necessary in order to enable the Court to
effectively and completely adjudicate upon and settle all the questions in
the suit. Their presence is necessary in the suit for the determination of the
real matter in dispute. Therefore, they are needed to be brought on record,
of course, subject to the law of limitation, as contended under Section 21
of the Limitation Act.
Merely because the earlier application filed by the appellant under
Order 22 Rule 4 of the Code was dismissed on 09.09.2009 as not
maintainable, it will not prohibit the plaintiff from filing another
application, which is maintainable in law. There was no adjudication of
the application to bring legal representatives on record on merits by virtue
of the order dated 09.09.2009. On the other hand, the earlier application
filed under Order 22 Rule 4 of the Code was dismissed by the trial Court
as not maintainable, inasmuch as defendant no. 7 had died prior to the
filing of the suit and that Order 22 Rule 4 of the Code comes into the
picture only when a party dies during the pendency of the suit. The only
course open to the appellant in law was to file an application for
impleadment to bring on record the legal representatives of deceased
defendant no. 7 under Order 1 Rule 10 of the Code. Hence, the order
passed by the trial Court on the application filed under Order 22 Rule 4 of
the Code, dated 09.09.2009, will not act as res-judicata. Pankajbhai
Rameshbhai Zalavadia V. Jethabhai Kalabhai Zalavadiya, AIR 2018
SC 490
O. 5, Rr. 20 & 1 7 – Service of summons – Consideration of
O.17 R. 17 provides as follows:
“17. Procedure when defendant refuses to accept service, or cannot be
found.- Where the defendant or his agent or such other person as aforesaid refuses to
sign the acknowledgment, or where the serving officer, after using all due and
reasonable diligence, cannot find the defendant, who is absent from his residence at
the time when service is sought to be effected on him at his residence and there is no
likelihood of his being found at the residence within a reasonable time and there is no
agent empowered to accept service of the summons on his behalf, nor any other
person on whom service can be made, the serving officer shall affix a copy of the
summons on the outer door or some other conspicuous part of the house in which the
defendant ordinarily resides or carries on business or personally works for gain, and
shall then return the original to the court from which it was issued, with a report
endorsed thereon or annexed thereto stating that he has so affixed the copy, the
circumstances under which he did so, and the name and address of the person (if any)
by whom the house was identified and ‘whose presence the copy was affixed.”
Evidently as the report of the bailiff indicates, he was unable to find the defendant at
the address which was mentioned in the summons. The report of the bailiff does not
indicate that the summons were affixed on a conspicuous part of the house, at the
address mentioned in the summons. There was a breach of the provisions of Order V
Rule 17. When the application for substituted service was filed before the Trial Court
under Order V Rule 20, a cryptic order was passed on 2 September 2011. Order V Rule
20 requires the Court to be satisfied either that there is reason to believe that the
defendant is keeping out of the way for the purpose of avoiding service or that for any
other reason, the summons cannot be served in the ordinary way. Substituted service
is an exception to the normal mode of service. The Court must apply its mind to the
requirements of Order V Rule 20 and its order must indicate due consideration of the
provisions contained in it. Evidently the Trial Court failed to apply its mind to the
requirements of Order V Rule 20 and passed a mechanical order. Besides this, as
observed by the learned Single Judge of the High Court, the Trial Judge ignored the
provisions contained in Chapter III of the Civil Manual issued by the High Court on its
appellate side for the guidance of civil courts and officers subordinate to it.
The submission that under Order V Rule 20, it was not necessary to affix a
copy of the summons at the court house and at the house where the defendant is
known to have last resided, once the court had directed service by publication in the
newspaper really begs the question. There was a clear breach of the procedure
prescribed in Order V Rule 17 even antecedent thereto. Besides, the order of the Court
does not indicate due application of mind to the requirement of the satisfaction
prescribed in the provision. The High Court was, in these circumstances, justified in
coming to the conclusion that the ex-parte judgment and order in the suit for specific
performance was liable to be set aside.M/S. Neerja Realtors Pvt. Ltd. V. Janglu (Dead)
Thr. Lr 2018(1) Supreme 379
O. 6 R. 17 – Amendment in plaint – Suit at initial stage – Proposed amendment not
likely to change nature of suit – Court should be liberal in allowing proposed
amendment.
When a suit is still at its initial stage and the trial is yet to begin and when the
documents filed are alleged to be that of the respondents themselves having obtained
through TRI, there is no reason why the appellant (plaintiff) be not allowed to file
them. N.C. Bansal V. UP Financial Corporation 2018 (1) Supreme 329
O. 6R. 17- Amendment of pleading- Not permitting amendment subsequent to
commencement of the trial- Object of
From the facts of the present case, it is clear from the record that issues were
framed on 17.05.2010 and case was fixed for recording of evidence of plaintiff on
10.08.2010. Plaintiff did not produce the evidence and took adjournment and in the
meantime filed an application under Order VI Rule 16 or 17 on 17.01.2011. Thereafter
the Court on 26.07.2011 has granted four week’s time as the last opportunity to file
the examination-in-chief.
Thus technically trial commenced when the date was fixed for leading
evidence by the plaintiff but actually the amendment application was filed before the
evidence was led by the plaintiff. The parties led evidence after the amendment
application was filed. In this context, it is necessary to notice the order of the High
Court dated 14.02.2014, which records that evidence of both the parties have been
concluded. Most important fact to be noticed in theorder is that the Court recorded
the statement of plaintiff’s counsel that parties have led evidence in view of the
amendment sought in the plaint.
The Proviso to Order VI Rule 17 prohibited entertainment of amendment
application after commencement of the trial with the object and purpose that once
parties proceed with the leading of evidence, no new pleading be permitted to be
introduced. The present is a case where actually before parties could led evidence, the
amendment application has been filed and from the order dated 14.02.2014, it is clear
that the plaintiff’s case is that parties has led evidence even on the amended pleadings
and plaintiff’s cases was that in view of the fact that the parties led evidence on
amended pleadings, the allowing the amendment was mere formality. The defendant
in no manner can be said to be prejudiced by the amendments since plaintiff led his
evidence on amended pleadings also as claimed by him.
Looking to the object and purpose by which limitation was put on permitting
amendment of the pleadings, in substance, in the present case no prejudice can be
said to have caused to the defendant since the evidence was led subsequent to the
filing of the amendment application. court is of the view that looking to the purpose
and object of the Proviso, present was a case where it cannot be held that amendment
application filed by the plaintiff could not be considered due to bar of the Proviso.
Taking into overall consideration of the facts of the present case and specially
the fact that evidence by the parties was led after the filing of the amendment
application, court is of the view that justice could have been served in allowing the
amendment application. court thus allow the appeal and set aside the order of the
High Court as well as the order of the Additional District Judge.Mohidner Kumar
Mehra v. Roop Rani Mehra & Ors., 2017 (14) SCALE 223
O. 7, R. 14 – Filing of documents – That of respondents, obtained through TRI – Ought
to be allowed.
So far as the filing of documents is concerned, this application too should have
been allowed on the same grounds on which we have allowed the amendment
application. In other words when a suit is still at its initial stage and the trial is yet to
begin and when the documents filed are alleged to be that of the respondents
themselves having obtained through TRI, there is no reason why the appellant
(plaintiff) be not allowed to file them. N.C. Bansal V. UP Financial Corporation 2018 (1)
Supreme 329
O.9, R. 13 – Trial court passing ex parte decree against four defendants – Case restored
at instance of defendants 3 and 4 - No notice of the proceeding served on defendants
1 and 2 – Validity of
It is not in dispute that all the four defendants (1 to 4) suffered ex parte decree
on 27.02.2004 jointly and severally. It is also not in dispute that only defendant Nos. 3
and 4 applied to the Court for setting aside the decree under Order 9 Rule 13 of the
Code. This application was allowed by the Trial Court by order dated 20.12.2005 which
resulted in setting aside of the entire ex parte decree against all the defendants,
including defendant Nos. 1 and 2 though they did not apply for its setting aside. The
suit was accordingly restored to its file for fresh trialon merits.
In our view, defendant Nos. 1 and 2 were entitled to a notice of the
proceedings under Order 9 Rule 13 of the Code in terms of local amendment made by
the State of Kerala in the first proviso to Order 9 Rule 13, wherein the words "after
notice to them” were inserted. This local amendment made in the first proviso to
Order 9 Rule 13 was applicable to defendant nos. 1 and 2. When enquired, it was
stated that no notice was served on defendant Nos. 1 and 2 before setting aside the
ex parte decree and in their absence, the suit was restored. This was, in our view, one
irregularity committed by the Trial Court while restoring the entire suit, though it was
for the benefit of defendant Nos. 1 and 2.
The Trial Court, however, again decreed the suit by judgment/decree dated
20.02.2007 ex parte against defendant Nos. 1 and 2 but after hearing only defendant
Nos. 3 and 4. It is against this judgment and decree which was impugned in appeal by
defendant Nos. 3 and 4, which was again set aside by the High Court by impugned
judgment resulting in remand of the case to the Trial Court for fresh trial on merits
giving rise to filing of this appeal by the plaintiffs. As mentioned above, though we are
inclined to uphold the remand order, but that we do so on the basis of
aforementioned two grounds noticed by us in the proceedings in the suit and in Order
9 Rule 13 proceedings. The two legal infirmities noticed by us in the proceedings call
for remand of the case to the Trial Court for fresh adjudication of the civil suit on
merits in accordance with law. Jaiprakash V. T.S. David 2018 (1) Supreme 337
O.9 R. 9, 13 – Limitation Act, Sec. 5 – Restoration application – Condonation of delay –
Consideration of.
The High Court held that application for restoration could be under Order 9
and the limitation for restoration is 30 days from the date of dismissal as per Article
122. For the purposes of this case, it is not necessary for us to enter into the question
as to whether limitation for application filed by the appellants on 21.08.2002 was 30
days or 3 years. Even if it is assumed that limitation for filing application was only 30
days, the appellants in their application itself have already given sufficient explanation
for filing the application on 21.08.2002. They were not aware of the application dated
20.07.1999 filed by Ranjit singh deceased who could not recover from illness and died
on 20.11.2001. The Trial Court has held that reasons given by the appellants were not
sufficient which finding has been reversed by the Appellate Court.
Section 5 of the Limitation Act was attracted in application filed for
restoration. The Appellate Court having found sufficient cause for restoration, it is just
and equitable to conclude that there was sufficient cause for condonation of delay, if
any. Thus, the rejection of the application of the appellants on the above ground also
cannot be sustained.
In view of the foregoing discussion the judgment of the High Court is set aside.
The order of the Appellate Court shall stand revived and Trial Court shall proceed as
directed by the Appellate Court vide its judgment dated 30.01.2009. Jaswant Singh v.
Parkash Kaur, AIR 2017 SC 5275.
O.23 R. 1- Withdrawal of suit- Grant of permission to withdraw the suit- Liability of
plaintiff to pay cost to Respondent/Defendant
In the present case, Court observed that the appellant (plaintiff) had
applied for withdrawal of his suit under O.23, R.1. The Trial Court
acceded to the prayer and accordingly granted permission to the appellant
to withdraw the suit on payment of cost of Rs.350/- to the defendants. The
Trial Court did by take recourse to the powers conferred under O. 23 sub-
rule (4)(a) of Rule 1.
The effect of this grant of permission to the appellant was that
though he was allowed to withdraw the suit but was not permitted to file a
fresh suit on the same subject matter. Since only one person had filed the
suit and, therefore, sub-rule (5) of Rule 1 was not attracted.
In court’s considered opinion, when the plaintiff files an
application under O.23, R.1 and prays for permission to withdraw the suit,
whether in full or part, he is always at liberty to do so and in such case,
the defendant has no right to raise any objection to such prayer being
made by the plaintiff except to ask for payment of the cost to him by the
plaintiff as provided in sub-rule (4).
The reason is that while making a prayer to withdraw the suit under
Rule 1(1), the plaintiff does not ask for any leave to file a fresh suit on the
same subject matter. A mere withdrawal of the suit without asking for
anything more can, therefore, be always permitted. In other words, the
defendant has no right to compel the plaintiff to prosecute the suit by
opposing the withdrawal of suit sought by the plaintiff except to claim the
cost for filing a suit against him.
Court is of the considered opinion that the Trial Court and the
Revision Court (A.D.J) were justified in permitting the appellant
(plaintiff) to withdraw the suit under sub-rule (1) of Rule 1. In other
words, since the appellant had applied for withdrawal of the suit under
O.23, R.1, the Trial Court was justified in permitting withdrawal of the
suit subject to the appellant paying cost of Rs.350/- to respondent No.1
(defendant No.1). Such order, in courts view, was in conformity with sub-
rule (3) of Rule 1 and was rightly upheld by the Revision Court.
The High Court, however, committed jurisdictional error in
allowing the defendant's writ petition by finding fault in the orders of the
Trial Court and Revision Court and giving directions to the plaintiff to
place defendant No.1 in possession of the suit land without there being
any basis whatsoever.
As mentioned above, the High Court should have seen that the
scope of writ petition was confined to examine the question as to whether
the Trial Court and Revision Court were justified in allowing the
application filed by the plaintiff under O.23, R.1 of the Code and to decide
this question, the High Court should have confined its inquiry to examine
as to whether the requirements of O.23, R.1 were complied with or not but
not beyond it.
There was, therefore, no justification on the part of the High Court
to have travelled in the issues relating to the grant of injunction in relation
to the suit land and give direction to the appellant (plaintiff) to place
respondent No. 1 in possession of the suit land.
In the light of foregoing discussion, court is of the considered opinion that the
Trial Court and the Revision Court were justified in permitting the appellant (plaintiff)
to withdraw the suit whereas the High Court was not right in setting aside the orders
of the Revision Court and the Trial Court and giving directions to place defendant No.1
in possession of the suit land.Anil Kumar Singh v. Vijay Pal Singh & Ors., 2017(13)
SCALE 756
O. 32, R. 1 – Next friend – Entitled to file suit on behalf of minor – Need not necessarily
be a duly appointed guardian u/s 4(b), Hindu Minority and Guardianship Act – No
permission or leave of Court necessary.
There cannot be any dispute that the plaintiff no. 1 did not and does not come
within the meaning of a “Guardian” as specified in Sub-section (b) of Section 4 of the
Hindu Guardianship Act. But the present facts are not governed by the provisions of
Hindu Guardianship Act; rather they are governed by O. 32 of the Code of Civil
Procedure (hereinafter referred to “Code”).
A bare reading of O. 32, R. 1 of the Code makes it amply clear that every suit
by a minor shall be instituted in his name by a person who in such suit shall be called
the “next friend” of the minor. The next friend need not necessarily be a duly
appointed guardian as specified under SubSection (b) of Section 4 of Hindu
Guardianship Act. “Next friend” acts for the benefit of the “minor” or other person
who is unable to look after his or her own interests or manage his or her own law suit
(person not sui juris) without being a regularly appointed guardian as per Hindu
Guardianship Act. He acts as an officer of the Court, especially appearing to look after
the interests of a minor or a disabled person whom he represents in a particular
matter. The aforesaid provision authorises filing of the suit on behalf of the minor by a
next friend. If a suit by minor is instituted without the next friend, the plaint would be
taken off the file as per Rule 2 of O. 32 of the Code. Order 32 Rules 1 and 3 of the Code
together make a distinction between a next friend and a guardian
ad litem; i.e., (a) where the suit is filed on behalf of a minor and (b) where the suit is
filed against a minor. In case, where the suit is filed on behalf of the minor, no
permission or leave of the Court is necessary for the next friend to institute the suit,
whereas if the suit is filed against a minor, it is obligatory for the plaintiff to get the
appropriate guardian ad litem appointed by the Court for such minor. A “guardian ad
litem” is a special guardian appointed by a court in which a particular litigation is
pending to represent a minor/infant, etc. in that particular litigation and the status of
guardian ad litem exists in that specific litigation in which appointment occurs. Various
High Courts have also adopted this view. The Madras High Court in Kaliammal, minor
by Guardian, Patta Goundan v. Ramaswamy Goundan, AIR 1949 Mad. 859 observed
that there is no need of sanction of the Court for a next friend to sue, if he is not
incapacitated. This was also the view taken by the High Court of Allahabad in K. Kumar
v. Onkar Nath, AIR 1972 All. 81. Nagaiah V. (Smt. Chowdamma dead) By LRs. 2018 (1)
Supreme 491
Constitution of India:
Art. 16 – Appointment – In police services – Acquittal in any criminal
case cannot be presumed to be honourable acquittal for consideration
of his appointment.
It is thus well settled that acquittal in a criminal case does not
automatically entitle him for appointment to the post. Still it is open to the
employer to consider the antecedents and examine whether he is suitable
for appointment to the post. From the observations of this Court in Mehar
Singh and Parvez Khan cases, it is clear that a candidate to be recruited to
the police service must be of impeccable character and integrity. A person
having criminal antecedents will not fit in this category. Even if he is
acquitted or discharged, it cannot be presumed that he was honourably
acquitted/completely exonerated. The decision of the Screening
Committee must be taken as final unless it is shown to be mala fide. The
Screening Committee also must be alive to the importance of the trust
repose in it and must examine the candidate with utmost character.Union
Territory, Chandigarh Administration V. Pradeep Kumar, AIR 2018
SC 376.
Art. 16(4) – Reservation – Can be provided by an executive order also.
Art. 16 sub-clause (4) of the Constitution of India is an enabling provision
empowering the state for making any provision for the reservation of appointments or
posts in favour of any backward class of citizens which, in the opinion of the State, is
not adequately represented in the services under the State. The orders issued by the
state Government from time to time were the orders contemplated by Article 16 sub-
clause (5). It is well settled by nine Judge Constitution Bench that reservation in favour
of backward classes can be provided by a State Government by an executive order
also. Gaurav Pradhan V. State of Rajasthan 2017 (8) Supreme 561
Arts 32, 16 – Uttar Pradesh Secondary Education Services Selection Board Act , S. 16 –
Appointment of Trained Graduate Teachers – Examination for – Revaluation of answer
books – Directions issued.
Sympathy or compassion does not play any role in the matter of directing or
not directing re-evaluation of an answer sheet. If an error is committed by the
examination authority, the complete body of candidates suffers. The entire
examination process does not deserve to be derailed only because some candidates
are disappointed or dissatisfied or perceive some injustice having been caused to them
by an erroneous question or an erroneous answer. All candidates suffer equally,
though some might suffer more but that cannot be helped since mathematical
precision is not always possible.
For re-valuation of mark-sheets, following are directions/highlights in respect
of matter. They are: (i) If a statute, Rule or Regulation governing an examination
permits the re-evaluation of an answer sheet or scrutiny of an answer sheet as a
matter of right, then the authority conducting the examination may permit it; (ii) If a
statute, Rule or Regulation governing an examination does not permit re-evaluation or
scrutiny of an answer sheet (as distinct from prohibiting it) then the Court may permit
re-evaluation or scrutiny only if it is demonstrated very clearly, without any
“inferential process of reasoning or by a process of rationalisation” and only in rare or
exceptional cases that a material error has been committed; (iii) The Court should not
at all re-evaluate or scrutinize the answer sheets of a candidate – it has no expertise in
the matter and academic matters are best left to academics; (iv) The Court should
presume the correctness of the key answers and proceed on that assumption; and (v)
In the event of a doubt, the benefit should go to the examination authority rather than
to the candidate. Ran Vijay Singh V. State of U.P., AIR 2018 SC 52
Art. 136 – Scope of – By granting special leave Supreme Court does not convert itself
into an appellate court to appreciate evidence for third time.
It is now well established that this Court does not, by special leave
convert itself into an appellate court to appreciate evidence for third time.
As has been consistently held by this Court in Ramaniklal Gokaldas and
Others v. State of Gujarat (1976) 1 SCC 6 and Ramanbhai Naranbhai
Patel and others v. State of Gujarat (2000) 1 SCC 358 and other cases,
unless some serious infirmity or perversity is shown, this Court normally
refrains from reappreciating the matter on appeal by special leave. In the
case at hand, hurling of bombs is attributed only to accused Nos. 1 to 3.
Had the other accused intended to kill Kennedy and the witnesses, they
would have inflicted injuries on the vital organs or used the surest weapon
of committing murder and not mere sickles/sticks. Conviction of accused
Nos. 4 to 10 under Section 302 IPC with the aid of Section 149 IPC, in
our view, suffers from serious infirmity and liable to be set aside. Joseph
V. The State of Tamil Nadu 2018 (1) Supreme 197
Art. 136—Scope of Interference under—Concurrent findings recorded by courts
below—Interference—Scope
Findings recorded by three courts below on facts viz. that appellant-plaintiff
had failed to prove agreement dt. 24.4.1980 allegedly entered into by predecessor-in-
interest of R-1, R-2 and R-3 to sell land to appellant-plaintiff and will executed by
deceased in appellant-s favour, which are based on appreciation of evidence are
essentially in nature of concurrent findings of fact and as such are binding on Supreme
Court. Further, as rightly held said findings were equally binding on High Court while
hearing second appeal. More so, when such findings were not found to be perverse.
Concurrent findings of three courts below rendered against appellant-plaintiff call for
no interference. Suresh Kumar through GPA V. Anil Kakaria, (2018)1 SCC 86
Art. 136 – Finding of fact by courts below – Binding on Supreme Court unless perverse.
Once the Courts record a finding on such question, be that of
concurrence or reversal, the finding is usually held binding on this Court
while hearing the appeal under Article 136 of the Constitution.
It is only when such finding is found to be against any provision of
law or evidence or is found to be wholly perverse to the extent that no
average judicial person could ever record such finding, it would not be
held binding on the superior Court. National Kamgar Union V. Kran
Rader Pvt. Ltd., 2018 (1) Supreme 240
Art. 136 – Scope of – Normally Supreme Court does not interfere with an interim order
passed in a proceeding pending before High Court.
Normally this Court in exercise of jurisdiction under Article 136 of the
Constitution is loathe to interfere with an interim order passed in a pending
proceeding before the High Court, except in special circumstances, to prevent
manifest injustice or abuse of the process of the court. In the present case, the facts
are not in dispute. Authorized Officer, State Bank of Travancore V. Mathew K.C. 2018
(1) Supreme 471
Art. 142 – Court taking recourse to innovative method to try and find a solution –
Order attempting complete justice between the parties – Falls in the ambit of Art. 142
The Division Bench has noted he long and chequered history of the case and
has noted that the Court has to take recourse to an innovative method to try and find
a solution. It is thus apparent that this is an order falling within the ambit of Article 142
to do complete justice between the parties. The Court was aware that the slum
dwellers were suffering due to the long protracted litigation. Therefore, the Court felt
the need to find an innovative solution. Susme Builders Pvt. Ltd V. Chief Executive
Officer, Slum Rehabilitation Authority 2018 (1) Supreme 385
Art. 145 – Constitution of Benches – Powers of C.J.I. - C.J.I. Is master of
roster – Competent to constitute Bench in exercise of his administrative
power.
Court considers the question whether court can hear the matter as the Bench
has been formed by Hon’ble Chief Justice of India in exercise of his administrative
power. That issue stands concluded by the decision of 5-Judge Bench of this Court. The
Constitution Bench of this Court has clearly held that Hon’ble Chief Justice of India is
the master of the roster, and any order which had been passed contrary to the order
of the Constitution Bench, was held to be ineffective in law, not binding on the Hon’ble
Chief Justice of India. The Hon’ble Chief Justice of India has constituted a Bench on
administrative side after the aforesaid decision of this Court in which, this precise
question, as to the competence of the Chief Justice to constitute a Bench, has been
decided; as such, the submission made by Shri Shanti Bhushan, learned senior counsel,
is hereby rejected. We cannot reopen this issue. The decision is binding. Kamini Jaiswal
V. Union of India, AIR 2017 SC 5334 : 2018 Cr.L.J. 1068
Art. 226 – Jurisdiction not absolute – To be exercised judiciously and in accordance
with law – Normally should not be exercised if alternate remedy available.
The discretionary jurisdiction under Art. 226 is not absolute but has to be
exercised judiciously in the given facts of a case and in accordance with law. The
normal rule is that a writ petition under Article 226 of the Constitution ought not to be
entertained if alternate statutory remedies are available, except in cases falling within
the well defined exceptions as observed in Commissioner of Income Tax and Others vs.
Chhabil Dass Agarwal, 2014 (1) SCC 603, as follows:
“15. Thus, while it can be said that this Court has recognized some exceptions
to the rule of alternative remedy i.e. where the statutory authority has not acted in
accordance with the provisions of the enactment in question, or in defiance of the
fundamental principles of judicial procedure, or has resorted to invoke the provisions
which are repealed, or when an order has been passed in total violation of the
principles of natural justice, the proposition laid down in Thansingh Nathmal case,
Titaghur Paper Mills case and other similar judgments that the High Court will not
entertain a petition under Article 226 of the Constitution if an effective alternative
remedy is available to the aggrieved person or the statute under which the action
complained of has been taken itself contains a mechanism for redressal of grievance
still holds the field.
Therefore, when a statutory forum is created by law for redressal of
grievances, a writ petition should not be entertained ignoring the statutory
dispensation.”Authorized Officer, State Bank of Travancore V. Mathew K.C. 2018 (1)
Supreme 471
Art. 227 – High Court duty bound to see that subordinate court did not commit any
illegality or perversity.
It is the duty of the High Court while exercising the supervisory jurisdiction to
see that the subordinate Court has exercised its powers in accordance with law and
did not commit any illegality or perversity in reaching to the conclusion.
While recording a finding, if it is noticed by the High Court that the
subordinate Court has failed to take into consideration the material evidence or
recorded a finding without there being any evidence, then the High Court would be
entitled to interfere in such finding in exercise of its supervisory jurisdiction under
Article 227 of the Constitution. Such is the case here. National Kamgar Union V. Kran
Rader Pvt. Ltd., 2018 (1) Supreme 240
Contract Act:
Sec. 73 – Breach of terms of contract of fundamental nature – Effect of
Contract can be terminated on breach of terms of contract of fundamental
nature. Maharashtra State Electricity Distribution Company Ltd. V. M/s Datar
Switchgear Ltd. 2018 (1) Supreme 424
Sec. 74 – Forfeiture of earnest money – Right of – Arises only when contract contains
stipulation of forfeiture – In absence of any stipulation, no right is available to party to
forfeit sum.
Reading of Section 74 would go to show that in order to forfeit the sum
deposited by the contracting party as "earnest money" or “security" for the due
performance of the contract, it is necessary that the contract must contain a
stipulation of forfeiture. In other words, a right to forfeit being a contractual right and
penal in nature, the parties to a contract must agree to stipulate a term in the contract
in that behalf. A fortiori, if there is no stipulation in the contract of forfeiture, there is
no such right available to the party to forfeit the sum. Suresh Kumar Wadhwa V. State
of M.P. AIR 2017 SC 5435.
Court Fees Act:
Sec. 13 – Supreme Court remanding the matter to Reference Court for fresh
determination of market rate – Appellants held entitled to get back court fee paid
before High Court and Supreme Court.
Since we have remanded these cases to the Reference Court for fresh
adjudication on merits in accordance with law, the appellants (landowners) are
entitled to get back the amount of court fee paid by each appellant (landowner) on his
appeal memo before the High Court as also before this Court as provided under
Section 13 of the Court Fees Act. Surender Singh V. State of Haryana 2018 (2) Supreme
115
Criminal Procedure Code:
Sec. 91 – Summoning materials not made part of charge sheet – Accused has no right
to invoke sec. 91 – Court, however if satisfied about bearing of the materials on
framing of charge, may invoke sec. 91.
It is settled law that at the stage of framing of charge, the accused cannot
ordinarily invoke Section 91. However, the court being under the obligation to impart
justice and to uphold the law, is not debarred from exercising its power, if the interest
of justice in a given case so require, even if the accused may have no right to invoke
Section 91. To exercise this power, the court is to be satisfied that the material
available with the investigator, not made part of the charge-sheet, has crucial bearing
on the issue of framing of charge.
Thus, it is clear that while ordinarily the Court has to proceed on the basis of
material produced with the charge sheet for dealing with the issue of charge but if the
court is satisfied that there is material of sterling quality which has been withheld by
the investigator/prosecutor, the court is not debarred from summoning or relying
upon the same even if such document is not a part of the charge sheet. It does not
mean that the defence has a right to invoke Section 91 Cr.P.C. de hors the satisfaction
of the court, at the stage of charge. Nitya Dharmananda @ K. Lenin V. Sri Gopal
Sheelum Reddy also Known as Nithya Bhaktananda 2018(1) Supreme 170 : 2017 (14)
SCALE 319
Sec. 102 – Penal Code, Ss. 420, 467 – Power of Police to seize property
– Frezing of bank accounts by investigating authority – Due
procedure for seizure followed by authority – Freezing of bank
accounts, proper.
In this case it is noticed that the prosecution has alleged that the
two Trusts are run by the private appellants and other accused. They were
actively involved in collecting huge funds as donation in the name of
providing legal assistance to the 2002 Gujarat Riot Victims. Such
donations received by the two Trusts had never reached the victims, the
members of the Gulberg Society in respect of which grievance has been
made in the subject FIR. Further, substantial discrepancies have been
noticed from the bank accounts, copies of audited account statements and
Balance Sheet. The final account did not tally with the accounts, as
submitted. The appellants did not offer credible explanation in that regard,
much less satisfactory. According to the respondents, the conduct of the
appellants of non-cooperation during the investigation strengthens the
suspicion of the commission of an offence. They provided incorrect
information. It is also a case of non-disclosure and suppression of material
facts. These circumstances create suspicion of the commission of offence
under investigation. It is alleged by the respondents that the appellants
deliberately and intentionally did not disclose that they have already
opened new accounts and transferred huge sums of money after knowing
that stated bank accounts of the appellants were seized on 21.01.2014 by
the investigating agency.
Suffice it to observe that as the Investigating Officer was in
possession of materials pointing out circumstances which create suspicion
of the commission of an offence, in particular, the one under investigation
and he having exercised powers under Section 102 of the Code, which he
could, in law, therefore, could legitimately seize the bank accounts of the
appellants after following the procedure prescribed in sub-Section (2) and
sub-Section (3) of the same provision. As aforementioned, the
Investigating Officer after issuing instructions to seize the stated bank
accounts of the appellants submitted report to the Magistrate concerned
and thus complied with the requirement of sub-Section (3).
The suspicion entertained by the investigating agency as to how the
appellants appropriated huge funds, which in fact were meant to be
disbursed to the unfortunate victims of 2002 riots will have to be
explained by the appellants. Further, once the investigation is complete
and police report is submitted to the concerned Court, it would be open to
the appellants to apply for de-freezing of the bank accounts and persuade
the concerned Court that the said bank accounts are no more necessary for
the purpose of investigation, as provided in sub Section (3) of Section 102
of the Code. It will be open to the concerned Court to consider that
request in accordance with law after hearing the investigating agency,
including to impose conditions as may be warranted in the fact situation of
the case. Teesta Atul Setalvad v. State of Gujarat, AIR 2018 SC 27.
Sec.125- Maintenance- Grant of
The appellant approached this Court aggrieved by the Judgment dated
27.05.2014 passed by the High Court of Gauhati in Criminal Revision Petition No. 396
of 2013. The order in favour of the appellant under Section 125 Cr.PC granting
maintenance at the rate of Rs. 4000/- per month from the month of September, 2013,
has been set aside, mainly on the ground that the appellant failed to prove that she
was the wife of respondent- Subudh das. According to the appellant, the respondent
had fathered three children in her though the same was denied by the respondent
Hence, by order dated 28.02.2017, court directed the parties to go for a DNA
test. The report of the DNA has been forwarded to us. It is reported that the
respondent is the father of the three children born to the appellant.
In the above circumstances, court set aside the impugned order passed by the
High Court and restore the order dated 04.09.2013 passed by the Sub-Divisional
Judicial Magistrate, Hojai, Sankardev Nagar in M.R. Case no. 99 of 2008 filed under
Section 125 Cr.PC. Pratima Das @Arati Das V. Subudh Das 2018 (3) SCALE 154
Sec. 154 – FIR – Registration against Judges of High Courts and Supreme Court and
C.J.I. – Not permissible without requisite sanction.
There cannot be registration of any FIR against a High Court Judge or Chief
Justice of the High Court or the Supreme Court Judge without consultation of the
Hon’ble Chief Justice of India and, in case there is an allegation against Hon’ble Chief
Justice of India, the decision has to be taken by the Hon’ble President, in accordance
with the procedure prescribed in the said decision. In present case, there was no
favourable order granted by Supreme Court in favour of the medical college for the
current academic session 2017-18, rather its inspection for considering confirmation of
letter of permission for the next year 2018-19 had been ordered. Decision will be in
the hands of the MCI. After decision has been rendered on 18.9.2017 by Supreme
Court, FIR has been lodged and it appears that money was yet to be exchanged. FIR
dated 19.9.2017 reflecting meeting of for getting favourable order at Delhi shortly;
whereas Supreme Court has already decided the mater on 18.9.2017. Thus it is a
farfetched and too tenuous to even assume or allege that matter was pending in
Supreme Court for which any bribe was to be delivered to anyone. Kamini Jaiswal V.
Union of India, AIR 2017 SC 5334.
Sec. 154 – Not mentioning names of accused in FIR – Prosecution case cannot be
thrown out.
The value to be attached to the FIR depends upon facts and circumstances of
each case. When a person gives a statement to the police officer, basing on which the
FIR is registered. The capacity of reproducing the things differs from person to person.
Some people may have the ability to reproduce the things as it is, some may lack the
ability to do so. Some times in the state of shock, they may miss the important details,
because people tend to react differently when they come across a violent act. Merely
because the names of the accused are not stated and their names are not specified in
the FIR that may not be a ground to doubt the contents of the FIR and the case of the
prosecution cannot be thrown out on this count. Latesh @ Dadu Baburao Karlekar V.
The State Of Maharashtra 2018 (1) Supreme 524
Sec. 167(2)(i) – Proviso (a) – Default bail – Grant of – Words “not less
than” occurring in Clause (I) to proviso (a) of S. 167(2)
While it is true that merely because a minimum sentence is
provided for in the statute it does not mean that only the minimum
sentence is imposable. Equally, there is also nothing to suggest that only
the maximum sentence is imposable. Either punishment can be imposed
and even something in between. Where does one strike a balance? It was
held that it is eventually for the court to decide what sentence should be
imposed given the range available. Undoubtedly, the Legislature can bind
the sentencing court by laying down the minimum sentence (not less
than) and it can also lay down the maximum sentence. If the minimum is
laid down, the sentencing judge has no option but to give a sentence
“not less than” that sentence provided for. Therefore, the words “not
less than” occurring in Clause (i) to proviso (a) of Section 167(2) of the
Cr.P.C. (and in other provisions) must be given their natural and obvious
meaning which is to say, not below a minimum threshold and in the case
of Section 167 of the Cr.P.C. these words must relate to an offence
punishable with a minimum of 10 years imprisonment.
Of the two views expressed by this Court, court accept the view in
Rajeev Chaudhary (AIR 2001 SC 2369).
Consequently, court's opinion that the petitioner had satisfied all
the requirements of obtaining ‘default bail’ which is that on 11 th
January, 2017 he had put in more than 60 days in custody pending
investigations into an alleged offence not punishable with imprisonment
for a minimum period of 10 years, no charge sheet had been filed against
him and he was prepared to furnish bail for his release, as such, he ought
to have been released by the High Court on reasonable terms and
conditions of bail.Rakesh Kumar Paul V. State of Assam, 2018 Cr.L.J. 155
(SC)
S. 167 (2) – Proviso (a) – Indefeasible right of 'default bail' – Cannot be
frustrated by prosecution on any pretext
The accused can avail his liberty by filing an application stating
that the statutory period for filing the charge sheet or challan has expired
and the same has not yet been filed and therefore the indefeasible right
has accrued in his or her favour and further the accused is prepared to
furnish the bail bond.
This Court also noted that apart from the possibility of the
prosecution frustrating the indefeasible right, there are occasions when
even the court frustrates the indefeasible right. Reference was made to
Mohamed Iqbal Madar Sheikh v. State of Maharashtra, (1996) 1 SCC 722
wherein it was observed that some courts keep the application for
‘default bail’ pending for some days so that in the meantime a charge
sheet is submitted. While such a practice both on the part of prosecution
as well as some courts must be very strongly and vehemently
discouraged, we reiterate that no subterfuge should be resorted to, to
defeat the indefeasible right of the accused for ‘default bail’ during the
interregnum when the statutory period for filing the charge sheet or
challan expires and the submission of the charge sheet or challan in
court. Procedure for obtaining default bail. Rakesh Kumar Paul V. State of
Assam, 2018 Cr.L.J. 155 (SC)
Sec. 173 (8) – Further investigation after framing of charge – Magistrate cannot, suo
motu or on an application filed by the complainant / informant, direct further
investigation.
The question as to whether, after framing of charges and taking cognizance, it
is open to the Magistrate to direct further investigation either suo motu or on an
application filed by the complainant / informant is no more res integra. In a recent
decision of this Court (to which one of us, Justice Dipak Misra was party) in the case of
Amrutbhai Shambhubhai patel V. Sumanbhai Kantibhai Patel and others, (2017) 4 SCC
177 after analyzing earlier decisions on the point, it has been held that neither the
Magistrate suo motu nor on an application filed by the complainant / informant can
direct further investigation. Further investigation in a given case may be ordered only
on the request of the investigating agency and that too, in circumstances warranting
further investigation on the detection of material evidence only to secure fair
investigation and trial, the life purpose of the adjudication in hand.
In any case, at the instance of respondent no.2, it was not open to the Court to
direct further investigation as the Trial Court had already framed charges and taken
cognizance of the case against the appellant who appeared before it in the said
proceedings. The prayer for further investigation was not at the instance of the
investigating agency nor on the ground of detection of material evidence. Athul Rao V.
State of Karnataka 2017 (8) Supreme 578
Sec. 200 – Magistrate taking cognizance stating that Sessions Court has made out a
prima facie case – Not permissible – Magistrate ought to independently apply his
mind.
On a perusal of the order of the learned Magistrate taking cognizance, it is
apparent that the learned Magistrate observes that the Sessions court has already
made out a prima facie case. Such finding would be difficult to sustain as the revisional
court only observed certain aspects in furtherance of remanding the matter. Such
observations could not have been made by the Magistrate as he was expected to
apply his independent mind while taking cognizance. In the case on hand, we
recognize the limitation on the appellate forum to review subjective satisfaction of the
Magistrate while taking cognizance, but such independent satisfaction unless reflected
in the order would make it difficult to be sustained. Rajendra Rajoriya Vs. Jagat Narain
Thapak 2018 (2) Supreme 100
Sec. 227 – Discharge of accused– Accused evading excise duty on account
of taking credit without following procedure under R. 56-A of Central
Excise Rules (1944) – Validity
Learned Solicitor General appearing for the appellant submitted
that the view taken by the High Court is erroneous. The charge against
the respondent was of evasion of excise duty under Section 9(1)(b)
which remains unamended. The evasion was on account of the
respondent having taken credit without following the procedure under
Rule 56A. By omission of the said Rule, the charge did not suffer from any
legal infirmity. Alternatively, it was submitted that Section 6 of the
General Clauses Act applied to omission which was also repeal. It also
applies to a Rule. In this regard, reliance has been placed on Fibre Boards
Pvt. Ltd. Bangalore versus Commissioner of Income Tax, Bangalore 3,
Shree Bhagwati Steel Rolling Mills versus Commissioner of 1 (1969) 2 SCC
412 2 (2000) 2SCC 536 3 (2015) 10 SCC 333 Central Excise4 . It was also
submitted that retrospective amendment has been made to the Act by
the Finance Act, 2001 making it clear that actions taken under a rule will
not lapse even if the rule is omitted. The Explanation applied only to
future action and not to continuing action. Reliance has been placed on a
full Bench Judgment of the Allahabad High Court in Simholi Sugar Mills
Ltd. versus Union of India 5 It was also submitted that penalty for
wrongly taking credit was upheld by the Tribunal in Reliance Industries
Ltd. versus CCE 6, which has attained finality.
It is not necessary to go into all the rival contentions. In our view,
the matter can be decided on a short point. The charge against the
respondent is of evasion of duty. The ingredient of the offence is the
evasion. The omission of a procedural rule for availing the credit cannot
in any manner affect the said charge. The prosecution cannot be
deprived of opportunity to prove evasion which by itself is an offence. In
this view of the matter, there was no justification for the High Court to
quash the charge merely on the ground of Rule 56A having been
omitted.Chandpaklal Ramanlal Shah V. Reliance Industries Ltd., 2018
Cr.L.J. 490 (SC)
Ss. 227 & 239 – IPC - Section 506(i) –Discharge for offence- Sustainability
In the present case, Complainant allegedly had paid a sum of Rs. 200000/- as
advance- Balance sale consideration, though was allegedly tried to be paid by the
complainant repeatedly, both the accused refused to receive the same- Prosecution
case that for recovery of amount, the complainant visited house of respondent 1 (A-2)
and at that time he was threatened with dire consequences, beaten and pushed out of
the house of accused by her and A-1 –Application filed by accused u/s239, Cr.PC was
dismissed by trial Court- However, High Court set aside the order of the trial Court and
discharged A-2
It is well settled by this Court in catena of judgments that the Judge while
considering the question of framing charge under Section 227 of the Code in sessions
cases (which is akin to Section 239 Cr.PC pertaining to warrant cases) has the
undoubted power to sift and weigh the evidence for the limited purpose of finding out
whether or not a prima facie case against the accused has been made out; where the
material placed before the Court disclose grave suspicion against the accused which
has not been properly explained, the Court will be fully justified in framing the charge;
by and large if two views are equally possible and the Judge is satisfied that the
evidence produced before him while giving rise to some suspicion but not grave
suspicion against the accused, he will be fully within his rights to deischarge the
accused. The Judge cannot act merely as a Post Office or a mouth piece of the
prosecution, but has to consider the broad probabilities of the case, the total effect of
the statements and the documents produced before the Court, any basic infirmities
appearing in the case and so on. This however does not mean that the Judge should
make a roving enquiry into the pros and cons of the matter and weigh the materials as
if he was conducting a trial.
The High Court has discharged the accused no2/ respondent no. 1 only on the
ground that there is a discrepancy in the time of the occurrence. In the complaint it is
mentioned as 11.30 am whereas in the complainant’s statement recorded under
Section 161(3) of the Cr.PC it is mentioned as 5.30 pm. In our considered opinion, only
on the basis of such discrepancy, the High Court should not have discharged the
accused. The High Court should have taken into consideration the other material on
record to find out as to whether prima facie case is made out against the accused or
not for framing of charge. Be that as it may, court find that the material on record at
this stage is sufficient to frame charge for the offence under Section 506 (i) of IPC
against respondent no. 1/accused no. 2, inasmuch as the averments made in the
complaint and the investigating report prima facie disclose that the complainant was
threatened with dire consequences. Hence, in our view, the High Court was not
justified in discharging the accuse. State by the Inspector of Police, Chennai V. S. Selvi
and Another, 2018 (1) SCALE 5
Ss. 228 and 439 – Trial court framing charge and granting bail by a common order –
Validity of - It is not desirable to frame charge and grant bail by way of a common
order
It is to be pointed out that the Sessions Court considered both
framing of charges and also grant of bail to accused Anil Kumar Yadav by
way of a common order. On 27.02.2017, charges were framed against all
the accused and bail was granted to appellant Anil Kumar Yadav. Insofar
as framing of charges, in a case before the Sessions Court, under Section
228 of the Criminal Procedure Code, the court is required to consider
"whether there is ground for presuming that the accused has committed an
offence....." and then Court shall frame in writing a charge against the
accused. For grant of bail, the court is required to consider several other
factors. The considerations for framing of charge and grant of bail are
different. It was stated by the Bar that by and large this is the procedure
followed in Delhi. We may however indicate that it is not desirable to
frame charge and grant bail by way of a common order. Anil Kumar
Yadav V. State (NCT) of Delhi, 2018 (1) Supreme 109
Sec. 239 – Discharge – Application for
It is trite that at the stage of consideration of an application for
discharge, the Court has to proceed with the presumption that material
brought on record by the prosecution are true and evaluate such material
with a view to find out whether the facts emerging there from taken at
their face value disclose existence of the ingredients of the offence. State
by the Inspector of Police, Chennai v. S. Selvi, AIR 2018 SC 81.
Sec. 343 – On a complaint made u/s 340 or 341, Magistrate will follow procedure for
taking cognizance in a case on police report.
As sub-section (1) of Section 343 would unequivocally testify, a Magistrate to
whom a complaint is made under Section 340 or Section 341 shall, notwithstanding
anything contained in Chapter XV of the Code i.e. the procedure to be followed by a
Magistrate taking cognizance on a complaint, proceed as far as may be to deal with
the case as if it was instituted on a police report. Whereas Section 344 prescribes
summary procedure for trial for giving false evidence, Section 345 outlines the
procedure in certain cases of contempt committed in the view or presence of any
Court as mentioned therein. Section 346 prescribes the procedure where the Court
considers that the case should not be dealt with in the manner as set-out in Section
345, whereupon the Magistrate to whom any case is forwarded would proceed to deal
therewith, as far as may be, as if it were instituted on a police report. State of Goa v.
Jose Maria Albert Vales @ Robert Vales 2017 (8) Supreme 586
Ss. 302, 256, 249 and 482—Criminal complaint (relating to a warrant case herein)—
Death of complainant during proceedings—Right of legal heirs of deceased
complainant to continue prosecution
Criminal complaint filed by one S pertaining to offences u/ss. 420, 467, 468,
471, 120-B, 201 r/w S. 34 IPC, which was governed by procedure under CrPC for trial of
warrant cases by Magistrates, was dismissed by trial Magistrate concerned holding
that no prima facie case was made out against accused concerned. Aggrieved thereby,
S filed a criminal revision petition before Sessions Judge, but that too stood dismissed.
Thereafter, S preferred a criminal miscellaneous petition before High Court. During
pendency of that petition, S died. Right of legal heirs of deceased S to continue
proceedings. Issue as to having regard to: (i) provision u/s. 302 Cr.P.C. regarding grant
of permission to conduct prosecution, (ii) effect of absence of complainant as
prescribed in s. 249 Cr.P.C., as well as considering that under Cr.P.C. (a) in respect of
trial of a warrant case, there is no provision for rejection of complaint on death of
complainant, and (b) even in case of trial of summons case, it is not mandatory (u/s.
256 Cr.P.C.) that after death of complainant the complaint is to be rejected, held, on
death of complainant S in present case, High Court did not commit any error in
allowing legal heirs of S to prosecute petition pending before it. Chand Devi Daga V.
Manju K. Humatani, (2018) 1 SCC 71
Sec. 357-A – Victim compensation Scheme – Consideration for granting in
case, accused, since deceased allegedly committing rape on mentally
retarded victim, 38 years old
Having said so, I would have proceeded to record the formal
conclusion. But, in the instant case, I am disposed to think, more so, when
the accused has breathed his las and there is a medical certificate from
AIIMS as regard the mental disability of the victim, there should be no
further enquiry as envisaged under section 357-A of the Cr.P.C.
The said provision reads as follows:
“357 Victim compensation scheme.(1) Every State Government in co-
ordination with the Central Government shall prepare a scheme for
providing funds for the purpose of compensation to the victim or his
dependents who have suffered loss or injuryas a result of the crime and
who require rehabilitation.
(2) Whenever a recommendation is made by the
Court for compensation, the District Legal Service
Authority or the State Legal Service Authority, as
the case may be, shall decide the quantum of
compensation to be awarded under the scheme referred to in sub-
section (1).
(3) If the trial Court, at the conclusion of the trial, is satisfied, that
the compensation awarded under Sec. 357 is not adequate for
such rehabilitation, or where the cases end in acquittal or discharged and
the victim has to be rehabilitated, it may make recommendation for
compensation.
The State/District Legal Services Authority has to conduct an
inquiry and award the adequate compensation by
completing the inquiry. Had the accused been alive, the trial
would have taken place in a Court of Session as proceeded under Cr.P.C.
As the accused has dies and the victim is certified to be a mentally
disabled person and is fighting the lis for some time to come within the
purview of the POCSO Act wherein the trial is held in a different manner
and the provisions relating to the compensation are
different, I direct that the State Legal Services Authority, Delhi shall
award the compensation keeping in view the
Scheme framed by the Delhi Government. Ms Eera, through Dr.
Manjula Krippendorf V. State (Govt. of NCT of Delhi), 2018 Cr,L,J,
186 (SC)
Sec. 378 – Appeal against acquittal – Appellate court will be within its power to re-
appreciate the evidence and materials on record to reach its own conclusions.
Though it is no longer res integra that an order of acquittal, if appealed
against, ought not to be lightly interfered with, it is trite as well that the Appellate
Court is fully empowered to review, re-appreciate and reconsider the evidence on
record and to reach its own conclusions both on questions of fact and on law. As a
corollary, the Appellate Court would be within its jurisdiction and authority to dislodge
an acquittal on sound, cogent and persuasive reasons based on the recorded facts and
the law applicable. If only when the view taken by the Trial Court in ordering acquittal
is an equally plausible and reasonable one that the Appellate Court would not readily
substitute the same by another view available to it, on its independent appraisal of the
materials on record. This legally acknowledged restraint on the power of the Appellate
Court would get attracted only if the two views are equally plausible and reasonable
and not otherwise. If the view taken by the Trial Court is a possible but not a
reasonable one when tested on the evidence on record and the legal principles
applied, unquestionably it can and ought to be displaced by a plausible and reasonable
view by the Appellate Court in furtherance of the ultimate cause of justice. Though no
innocent ought to be punished, it is equally imperative that a guilty ought not to be let
of casually lest justice is a casualty. Khekh Ram V. State of H.P. 2017 (8) Supreme 269 :
(2018) 1 SCC 202
Sec. 386 – Powers of Appellate Court – Interference in appeal with
sentence in case of attempt to murder
Sec. 307 provides three punishments for three classes of nature of
the cases. One class of cases, which falls in first part of the Section,
prescribes a term “which may extend to ten years and fine”, second class
of cases, which falls in the second part of the Section, prescribes either
“imprisonment for life" or "such punishment, which is prescribed in first
part" and the third class of cases is when any person offending under
Section 307 IPC is under sentence of imprisonment for life, causes hurt,
be punished with “death”.
It is for the reasons that firstly, the facts of the case squarely fall in
the second part of Section 307 IPC; secondly, gunshot injury caused by
the appellant to the victim-Shahjad was grievous in nature, thirdly, the
bullet injury was caused in the head which was the most delicate and vital
part of the body; fourthly, the facts of the case satisfied the ingredients of
the first part of Section 307 IPC, namely, all the three accused which
included the appellant had gone to the house of victim-Shahjad with a
common intention to kill the members of family and in order to
accomplish the intention, each accused targeted one member of the family
present in the room which resulted in death of a stillborn child of
Rukhsana, who was hit by gunshot in her abdomen and other two
members suffered serious gunshot injuries though both survived.
In Court's opinion, while sentencing the accused, the Court is
required to take into account several factors arising in the case, such as the
nature of offence committed, the manner in which it was committed, its
gravity, the motive behind the commission of the offence, nature of
injuries sustained by the victim, whether the injuries sustained were
simple or grievous in nature, weapons used for commission of offence and
any other extenuating circumstances if any. Once these factors are
considered while imposing the sentence, there remains little scope to
interfere in quantum of punishment. Such is the case here. Ahsan V. State
of U.P., 2018 Cr.L.J. 95 (SC)
Sec. 386 – Retrial – In event of trial being unsatisfactory for particular reasons –
Cannot be ordered on mere irregularity or not causing any prejudicial – The power
should be exercised only in exceptional cases.
Normally,retrial should not be ordered when there is some infirmity rendering
the trial defective. A retrial may be ordered when the original trial has not been
satisfactory for particular reasons like…., appropriate charge not framed, evidence
wrongly rejected which could have been admitted or evidence admitted which could
have been rejected etc. Retrial cannot be ordered when there is a mere irregularity or
where it does not cause any prejudice, the Appellate Court may not direct retrial. The
power to order retrial should be exercised only in exceptional cases. Issac @ Kishor V.
Ronald Cheriyan 2018 (1) Supreme 482
Ss. 397, 298, 399 and 401 – Extent of revisional power – Revision court is authorized to
examine correctness, legality or propriety of any findings, sentence or order.
The extent of the revisionary powers inter alia, is provided under Section 399
read with Section 401 of Cr.P.C. It is clear from the aforesaid provisions that Section
398 has to be read along with other Sections which are equally applicable to the
revision petitions filed before the Sessions Court. Section 398 only deals with a distinct
power to direct further inquiry, whereas Section 397 read with Section 399 and
Section 401 confers power on the revisionary authority to examine correctness,
legality or propriety of any findings, sentence or order. The powers of the revisionary
court have to be cumulatively understood in consonance with Sections 398, 399 and
401 of Cr.P.C. Rajendra Rajoriya Vs. Jagat Narain Thapak 2018 (2) Supreme 100
Ss. 397 (2), 482 – Revision – Right to file – Interlocutory orders not revisable due to
prohibition contained in S. 397(2) – Cannot be circumvented by resort to S. 482
There are three categories of orders that a court can pass – final, intermediate
and interlocutory. There is no doubt that in respect of final order, a court can exercise
its revisional jurisdiction – that is in respect of a final order of acquittal or conviction.
There is equally no doubt that in respect of an interlocutory order, court cannot
exercise its revisional jurisdiction. As far as an intermediate order is concerned, court
can exercise its revision jurisdiction since it is not an interlocutory order.Girish Kumar
Suneja V. C.B.I., 2017 Cr.L.J. 4980 (SC)
Sec. 438 – Consideration of.
When there is no mention of involvement of person concerned in the FIR and
investigation also does not point out the same, interim bail cannot be denied.
The present appeal is directed against the judgment and order dated
21.11.2017 passed by the High Court of Punjab & Haryana at Chandigarh in Criminal
Miscellaneous Nos. M-35002 and 35003 of 2017 whereby learned single Judge of the
High Court had granted interim bail to Mr. Ryan Pinto, Dr. Augustine Francis Pinto and
Mrs. Grace Pinto-the top Signature Not Verified Digitally signed by management
executive of the Ryan International School till the entation of challan subject to certain
conditions.
On going through the FIR registered by the Police Station, Bhondsi dated
08.09.2017 which admittedly has been re-registered by the CBI, we find that no
allegation has been made against the private respondents herein. Learned single Judge
of the High Court, after considering the material and evidence on record as also the
material produced by the CBI.
Thus, as on date, the CBI is yet to examine and analyse the role of the private
respondents in this case and there is no evidence of their complicity in the crime and
there is not even a pointer of involvement of respondents herein in the alleged crime.
Their involvement cannot be established until and unless, there is some substantial
evidence against them. Learned single Judge, while granting interim bail to the private
respondents till the presentation of Challan had laid down certain conditions which are
as follows:-
“As a result of my above discussion, I find merits in both the petitions and the
same are allowed. Order dated 07.10.2017 granting interim bail to the
petitioners is made absolute, till the presentation of Challan, subject to the
following terms:-
(i) that the petitioners shall make themselves available for interrogation by the
investigating agency as and when required;
(ii) that the petitioners shall not, directly or indirectly, make any inducement,
threat or promise to any person acquainted with the facts of the accusation
against them so as to dissuade him from disclosing such facts to the Court or
to investigating agency;
(iii) that the petitioners shall not leave India without the prior permission of the
Court.
(iv) that the petitioners will seek regular bail on the presentation of Challan in
Court.”
In our considered opinion, without expressing anything on the merits of the
case as the investigation is still under progress and the CBI is yet to come to a
conclusion regarding the involvement of the private respondents in the crime, the
private respondents herein have made out a case for grant of protection by way of
interim bail till the presentation of Challan by the CBI as has been passed by learned
single Judge. Therefore, the order passed by learned single Judge granting interim bail
to the answering respondents till the presentation of Challan cannot be faulted with.
Barun Chandra Thakur V. Central Bureau Of Investigation 2018 (1) Supreme 172
Sec. 439 – Every accused is same in eyes of law – Irrespective of his nationality.
The law under Sec. 439 of Cr.P.C. is very clear and in the eyes of the law every
accused is the same irrespective of their nationality. Lachhaman Dass V. Resham
Chand Kaler 2018 (1) Supreme 486
Sec. 439 – Grant of bail – Principles and factors to be considered - Stated.
The law in regard to grant or refusal of bail is very well settled. The Court
granting bail should exercise its discretion in a judicious manner and not as a matter of
course. Though at the stage of granting bail a detailed examination of evidence and
elaborate documentation of the merit of the case need not be undertaken, there is a
need to indicate in such orders reasons for prima facie concluding why bail was being
granted particularly where the accused is charged of having committed a serious
offence. Any order devoid of such reasons would suffer from non-application of mind.
It is also necessary for the court granting bail to consider, among other circumstances,
the following factors also before granting bail; they are:
(a) The nature of accusation and the severity of punishment in case of conviction
and the nature of supporting evidence.
(b) Reasonable apprehension of tampering with the witness or apprehension of
threat to the complainant.
Lt. Col. Prasad Shrikant Purohit V. State of Maharashtra 2017 (8) Supreme 353
Sec. 439 – Grant of bail – Considerations
While granting bail, the relevant considerations are:- (i) nature of seriousness
of the offence; (ii) character of the evidence and circumstances which are peculiar to
the accused; and (iii) likelihood of the accused fleeing from justice; (iv) the impact that
his release may make on the prosecution witnesses, its impact on the society; and (v)
likelihood of his tampering. No doubt, this list is not exhaustive. There are no hard and
fast rules regarding grant or refusal of bail, each case has to be considered on its own
merits. The matter always calls for judicious exercise of discretion by the Court. Anil
Kumar Yadav V. State (NCT) of Delhi 2018 (1) Supreme 109
Sec. 439 – Grant of bail – Bail cannot be denied merely because of sentiments of
community against the accused.
Though an accused has a right to make successive applications for grant of
bail, the court entertaining such subsequent bail applications has a duty to consider
the reasons and grounds on which the earlier bail applications were rejected. In such
cases, the court also has a duty to record the fresh grounds which persuade it to take a
view different from the one taken in the earlier applications.
At the stage of granting bail, a detailed examination of evidence and elaborate
documentation of the merits of the case has not to be undertaken. The grant or
refusal to grant bail lies within the discretion of the court. The grant or denial is
regulated, to a large extent, by the facts and circumstances of each particular case. But
at the same time, right to bail is not to be denied merely because of the sentiments of
the community against the accused. Lt. Col. Prasad Shrikant Purohit V. State of
Maharashtra 2017 (8) Supreme 353
Sec. 482 – Appellant charged various sections of IPC – Charge sheet filed – In
pursuance of subsequent complaint supplementary charge sheet filed u/s 376 – High
Court refusing to quash charge sheet u/s 482 – Effect of
Having considered the matter we are of the view that there is
inherent improbability in the version of the respondent – complainant
insofar as the offence under Section 376 IPC is concerned. This is
because, according to the complainant, she came to know about the
factum of the earlier marriage of the accused appellant in the year 2014
though the parties were married in the year 2009. That apart, in the
complaint dated 19th December, 2014 it is stated that the same has been
lodged after one year of the knowledge of the previous marriage of the
accused appellant.
In view of the inherent improbability in the case of the complainant we are of
the view that through the trial against the accused appellant under Ss. 493, 494, 495,
496, 420, 506 IPC and under Sec. 67A of the Information Technology Act, 2000 should
continue the supplementary charge-sheet insofar as the offence under Section 376 IPC
is concerned ought to be interfered with by us. We order accordingly. Karan Singh
Tyagi V. State of U.P. 2017 (8) Supreme 268
Sec. 482 – Scope of
High Court acted beyond its jurisdiction under Sec. 482 Cr.P.C.
In this case, the High Court, in our view, virtually decided all the issues arising
out of the case like an investigating authority or / and appellate authority decides, by
little realizing that it was exercising its inherent jurisdiction under Sec. 482 of the Code
at this stage.
The High Court, in our view, failed to see the extent of its jurisdiction, which it
possess to exercise while examining the legality of any FIR complaining commission of
several cognizable offences by accused persons. In order to examine as to whether the
factual contents of the FIR disclose any prima facie cognizable offences or not , the
High Court cannot act like an investigating agency and nor can exercise the powers like
an appellate Court. Dineshbhai Chandubhai Patel V. State of Gujarat, 2018 (1)
Supreme 66
Sec. 482 – Principles for exercise of power under – Stated.
While exercising power under Sec.482 or under Art.226 in such matters, the
court does not function as a Court of Appeal or Revision. Inherent jurisdiction under
Sec. 482 of the Code though wide has to be exercised sparingly, carefully or with
caution and only when such exercise is justified by the tests specifically laid down
under Sec.482 itself. It is to be exercised ex debito justitiaeto do real and substantial
justice, for the administration of which alone courts exist. The court must be careful
and see that its decision in exercise of its power is based on sound principles. The
inherent powers should not be exercised to stifle a legitimate prosecution. Of course,
no hard and fast rule can be laid down in regard to cases in which the High Court will
exercise its extra ordinary jurisdiction of quashing the proceedings at any stage. Varala
Bharath Kumar V. State of Telangana 2017 (8) Supreme 324
Criminal Trial:
Circumstantial evidence – Grounds for admissibility
In the catena of judgments, this Court held that when conviction is based on
circumstantial evidence, there should not be any gap in the chain of circumstances;
the accused is entitled to the benefit of doubt. In the present case, by cogent and
convincing evidence, prosecution has established the circumstances :- (1) Motive
(evidence of PW-15); (ii) accused beating the deceased and taking her away (Evidence
of PW -1); (iii) Death of Meena Devi is homicidal (evidence of PW-24); (iv) Conduct of
accused in not reporting to the police about missing of the deceased Meena Devi; and
(v) Absence of explanation from the accused as to the death of the deceased. The
circumstances relied upon by the prosecution are proved by cogent and reliable
evidence. The circumstances cumulatively taken form a complete chain pointing out
that the murder was committed by the accused and none-else. State of Himachal
Pradesh V. Raj Kumar 2018 (1) Supreme 103
Conviction on sole evidence of a witness – Said evidence at variance with other
witnesses – Accused deserves acquittal.
Conviction on sole evidence of a witness which is found to be at variance with
other witnesses cannot be sustained. Selvaraj V. State by Inspector of Police, Tamil
Nadu, 2018 (1) Supreme 553
Discrepancies in prosecution case and contradictions in statements by prosecution
witnesses – Prosecution failing to prove its case – High Court rightly acquitting the
accused persons.
Police seized three gunny bags of contraband (Charas) from possession of the
accused persons.
The Trial Court convicted the accused for the offence punishable under Sec. 20
of the N.D.P.S. Act and sentenced them to undergo rigorous imprisonment for a period
of ten years and to pay a fine of Rs. 1,00.000/- each and in default of payment of fine,
to undergo further imprisonment for two years.
The High Court allowed the appeals and set aside the conviction. In
view of discrepancies in prosecution case and contradictions in statements by
prosecution witnesses the accused cannot be convicted.
Going by the number of discrepancies in the prosecution case coupled with
the contradictory statements by prosecution witnesses, the entire prosecution story
vitiates and leads for discrediting its version. Contradictions in the statement of the
witnesses are fatal for the case, though minor discrepancies or variance in their
evidence will not disfavour [See: State of H.P. Vs. Lekh Raj (2000) 1 SCC 247].
Considering the circumstances of the case on hand, it can be said that the
discrepancies are comparatively of a major character and go to the root of the
prosecution story. We cannot therefore ignore them to give undue importance to the
prosecution case. It is well settled that the Court can sift the chaff from the grain and
find out the truth from the testimony of the witnesses. The evidence is to be
considered from the point of view of trustworthiness and once the same stands
satisfied, it ought to inspire confidence in the mind of the Court to accept the stated
evidence.
In the light of the above discussion, in our considered opinion, the prosecution
has failed to establish the commission of alleged offence by the accused—respondents
beyond reasonable doubt. The evidence is scanty and lacking support to establish that
the contraband was really recovered from the possession of the respondents in the
manner alleged by the prosecution on the said date and time. It is imperative that the
law the Court should follow for awarding conviction under the provisions of N.D.P.S.
Act is “stringent the punishment stricter the proof.” In such cases, the prosecution
evidence has to be examined very zealously so as to exclude every chance of false
implication. But, in the case on hand, under the above explained circumstances, the
prosecution story cannot be believed to award conviction to the accused—
respondents. They deserve benefit of doubt. We are, therefore, in complete
agreement with the view taken by the High Court and see no reason to interfere with
the order impugned herein. The State of Himachal Pradesh V. Trilok Chand 2018(1)
Supreme 326
Investigation—Defective or illegal investigation—Concern expressed by Supreme
Court regarding, its seriousness of offence involved—Necessary directions issued, to
ensure against repetition of shortcomings in future
Supreme Court shares the concern expressed by trial court on the shoddy
investigation conducted in the case, having regard in particular to the seriousness of
the offence involved and reiterate the direction issued by it to the Superintendent of
Police, to enquire into the matter to ascertain the reason for omission/lapses in the
investigation, identify the person(s) responsible there for and the action taken in
connection therewith so as to ensure against repetition of such shortcomings in
future. Superintendent of Police to complete the inquiry and submit a report to
Supreme Court within a period of three months herefrom.Khekh Ram V. State of
Himachal Pradesh, (2018) 1 SCC 202
Test Identification Parade – Not necessary when accused known to witness – TI parade
not substantial piece of evidence but a rule of prudence.
The necessity of holding Test Identification Parade arises only when the
accused are not previously known to each other. The Test Identification Parade is not a
substantial piece of evidence, but is useful for corroboration with the other evidence.
It is a rule of prudence. The Test Identification Parade, even if it is held may not be
considered in all cases as trustworthy evidence on which the conviction of the accused
can be sustained. In the case on hand, the absence of Test Identification Parade will
not vitiate the case of the prosecution as the accused and P.W.2 were known to each
other. Latesh @ Dadu Baburao Karlekar V. The State of Maharashtra 2018 (1) Supreme
524
Reasonable doubt – Reasonableness of doubt must be a practical one – Not an
abstract theoretical hypothesis.
The reasonableness of a doubt must be a practical one and not on an abstract
theoretical hypothesis. Reasonableness is a virtue that forms as a mean between
excessive caution and excessive indifference to a doubt. Latesh @ Dadu Baburao
Karlekar V. The State of Maharashtra 2018 (1) Supreme 524
Respondent not appearing – Court modifying sentence of appellant in absence of
respondent in view of that the same would not cause prejudice to him – However,
respondent given liberty to approach the Court for recall of the same, if aggrieved.
We are conscious of the fact that respondent no. 2 (complainant) has not
appeared before this Court, but the order which we propose to pass is to his
advantage and, in all probability, the same would be acceptable to him. We make it
clear that if respondent no. 2 – original complainant is not satisfied with this order, he
will be free to apply for recall of the same, which request can be considered
appropriately. P. Ramadas V. State of Kerala 2018 (1) Supreme 756
Evidence Act:
Sec. 27 – Recovery evidence – Reliability – Penal Code, Ss. 302, 34 -
Murder – Accused and co-accused jointly stabbing deceased causing
death – Both accused leading to recovery of blood-stained knives – FSL
report establishing blood of deceased on on knife – Seized clothes of
accused showing blood of deceased – Testimony of eye-witnesses found
to be reliable – Both accused liable to be convicted.
Statements made by the Accused No.1 and 2 had led to the
recovery of alleged weapons of assault i.e. knives which had blood stains.
The same were sent for analysis/examination to the Forensic Science
Laboratory (F.S.L.). The report of the F.S.L. suggests that the human
blood found on one of the knives was having blood group 'A', which was
the blood group of the deceased and on the other knife the finding was
inconclusive. During the course of the investigation the clothes worn by
the accused appellant were recovered and the same were also sent for
chemical analysis to the F.S.L. The report of analysis suggests that the
same were also carrying human blood group 'A'.
In this regard, we have taken note of the evidence tendered by
the eye-witnesses which go to show that it is Accused-1 (Bhima) and
Accused-2 (Kara Bhai), who had jointly gone to the house of the
deceased and had called him out and had taken him away. Immediately
thereafter the incident had taken place in course of which both Accused
Nos.1 and 2 had attacked the deceased with knives. In view of the said
evidence on record, the prosecution would not be required to establish
that it is any one particular accused who is responsible for causing the
fatal injury inasmuch as the ingredients of Section 34 IPC would be
squarely attracted in the present case.Kara Bhai v. State of Gujarat, 2018
Cr.L.J. 1138 (SC)
Sec.106 – Attractibility of
When accused was last seen with the deceased and does not explain as to
how the deceased died, adverse inference can be drawn against him u/s 106, Evidence
Act.
When prosecution establishes complete chain of circumstances point to the
guilt of the accused, he has to be convicted. State of Himachal Pradesh V. Raj Kumar
2018 (1) Supreme 103
Hindu Adoption and Maintenance Act
Ss. 2(a), 3 & 10 – Ingredients of a valid custom- Custom of adopting married
sons- Proof of –Burden of proving adoption is a heavy one and if there is no
documentary evidence in support of adoption, the court should be very cautious in
relying upon oral evidence
From the provisions, it is clear that a person cannot be adopted if
he or she is a married person, unless there is a custom or usage, as defined
under Section 3(a), applicable to the parties which permits persons who
are married being taken in adoption.
India has a strong tradition of respect for difference and diversity
which is reflected under the Hindu family laws as it is applicable to
diverse communities living from the southern tip to northern mountains,
from western plains to eastern hills. Diversity in our country brings along
various customs which defines what India is. Law is not oblivious of this
fact and sometimes allows society to be governed by customs within the
foundation of law.
It is well known that a custom commands legitimacy not by an
authority of law formed by the State rather from the public acceptance and
acknowledgment.
As per the settled law under Section 2(a) the Act, the following
ingredients are necessary for establishing a valid customa. Continuity. b.
Certainty. c. Long usage. d. And reasonability. As customs, when pleaded
are mostly at variance with the general law, they should be strictly proved.
Generally, there is a presumption that law prevails and when the claim of
custom is against such general presumption, then, whoever sets up the
plea of existence of any custom has to discharge the onus of proving it,
with all its requisites to the satisfaction of the Court in a most clear and
unambiguous manner.
It should be noted that, there are many types of customs to name a
few-general customs, local customs and tribal customs etc. and the burden
of proof for establishing a type of custom depend 1 Bryan A. Garner,
Black's Law Dictionary (10th Eds.), p. 468. 10 on the type and the extent
of usage.
A judicial decision recognizing a custom may be relevant, but these are not
indispensable for its establishment. When a custom is to be proved by judicial notice,
the relevant test would be to see if the custom has been acted upon by a court of
superior or coordinate jurisdiction in the same jurisdiction to the extent that justifies
the court, which is asked to apply it, in assuming that the persons or the class of
persons concerned in that area look upon the same as binding in relation to
circumstances similar to those under consideration. In this case at hand there was no
pleading or proof which could justify that the above standards were met.
It is very much evident that the appellant in this case has failed to
produce any evidence to prove that such practice has attained the status of
general custom prevalent among the concerned community. Custom, on
which the appellant is relying, is a matter of proof and cannot be based on
a priori reasoning or logical and analogical deductions, as sought to be
canvassed by the appellant herein. Hence the issue is answered against the
appellant.
In response to issue number two, we are concerned here with the
custom of adopting married sons in the community of the appellant. The
only evidence, the appellant has adduced, is his own testimony and a word
of a priest who had performed the ceremony. A general custom which the
appellant intends to prove requires greater proof than the one appellant
adduced before the court. Moreover, there is no dispute with regard to the
fact that the appellant did not plead in his written statement about
existence of any custom as such. Parties to a suit are always governed by
their pleadings. Any amount of evidence or proof adduced without there
being proper pleading is of no consequence and will not come to the
rescue of the parties.
At this juncture it would be necessary to observe the law laid down
by this Court in numerous cases that the burden of proving adoption is a
heavy one and if there is no documentary evidence in support of adoption,
the Court should be very cautious in relying upon oral evidence. Ratanlal
@ Babulal Chunilal SamsukaV. Sundarabai Govardhandas Thr. LRs.
& Ors. 2017(13) SCALE 763
Hindu Marriage Act:
Sec. 13-B(2)- Minimum period of six months for a motion for passing decree of divorce
on basis of mutual consent-Whether mandatory-Consideration of- It is not mandatory
but directory, it will be open to the Court to exercise its discretion in the facts and
circumstance of each case where there is no possibility of parties resuming
cohabitation and there are chances of alternative rehabilitation-In conducting such
proceedings the Court can also use the medium of video conferencing and also permit
genuine representation of the parties-Explained.
Since we are of the view that the period mentioned in Section 13-(B)(2) is not
mandatory but directory, it will be open to the Court to exercise to exercise its
discretion in the facts and circumstances of each case where there is no possibility of
parties resuming cohabitation and there are chances of alternative rehabilitation.
Needless to say that in conducting such proceedings the Court can also use the
medium of video conferencing and also permit genuine representation of the parties
through close relations such as parents or siblings where the parties are unable to
appear in person for any just and valid reason as may satisfy the Court, to advance the
interest of justice.
The parties are now at liberty to move the concerned Court for fresh
consideration in the light of this order. The appeal is disposed of accordingly.
Amardeep Singh V. Harveen Kaur, 2018(1) ARC 337 S.C.
Hindu Minority and Guardianship Act:
Sec. 13 – Custody of Children – Welfare principle.
Learned counsel for the respondent had made a fervent plea to the effect that
if custody is retained by the appellant, it would amount to giving her advantage of her
own wrong as she took undue advantage of the gracious act of the respondent in
voluntarily handing over the custody of the children, but only for three days. He also
highlighted the conduct of the appellant, as discussed by the High Court, which has
castigated the appellant in this behalf in not obeying the interim directions of giving
access to the respondent.
In view of our aforesaid discussion, we do not find these arguments to be
meritorious. It also needs to be emphasised that the Court, in these proceedings, is not
concerned with the dispute between the husband and the wife inter se but about the
custody of children and their welfare. A holistic approach in this behalf is to be
undertaken. SCALEs tilt in favour of the appellant when the matter is examined from
that point of view. Purvi Mukesh Gada v. Mukesh Popatlal Gada, AIR 2017 SC 5407.
Hindu Succession Act:
Sec. 6, Explanation 1 (after Amendment, 2005) – Provision confers upon the daughter
of the coparcener as well the status of coparcener in her own right in the same
manner as the son and gives same rights and liabilities in the coparcener properties as
she would have had if it had been son.
The law relating to a joint Hindu family governed by the Mitakshara law has
undergone unprecedented changes. The said changes have been brought forward to
address the growing need to merit equal treatment to the nearest female relatives,
namely daughters of a coparcener. The section stipulates that a daughter would be a
coparcener from her birth, and would have the same rights and liabilities as that of a
son. The daughter would hold property to which she is entitled as a coparcenary
property, which would be construed as property being capable of being disposed of by
her either by a will or any other testamentary disposition. These changes have been
sought to be made on the touchstone of equality, thus seeking to remove the
perceived disability and prejudice to which a daughter was subjected. The
fundamental changes brought forward about in the Hindu Succession Act, 1956 by
amending it in 2005, are perhaps a realization of the immortal words of Roscoe Pound
as appearing in his celebrated treaties, The Ideal Element in Law, that “the law must
be stable and yet it cannot stand still.”
Section 6, as amended, stipulates that on and from the commencement of the
amended Act, 2005, the daughter of a coparcener shall by birth become a coparcener
in her own right in the same manner as the son. It is apparent that the status
conferred upon sons under the old section and the old Hindu Law was to treat them as
coparceners since birth. The amended provision now statutorily recognizes the rights
of coparceners of daughters as well since birth. The section uses the words in the
same manner as the son. It should therefore be apparent that both the sons and the
daughters of a coparcener have been conferred the right of becoming coparceners by
birth. It is the very factum of birth in a coparcenary that creates the coparcenary,
therefore the sons and daughters of a coparcener become coparceners by virtue of
birth. Devolution of coparcenary property is the later stage of and a consequence of
death of a coparcener. The first stage of a coparcenary is obviously its creation as
explained above, and as is well recognized. One of the incidents of coparcenary is the
right of a coparcener to seek a severance of status. Hence, the rights of coparceners
emanate and flow from birth (now including daughters) as is evident from sub-s (1)(a)
and (b).
Hence, it is clear that the right to partition has not been abrogated. The right is
inherent and can be availed of by any coparcener, now even a daughter who is a
coparcener. Danamma @ Suman Surpur V. Amar 2018 (1) Supreme 538: 2018(1)
SCALE 657
Sec. 14(1) & (2)- Scope of- Applicability of Sec. 14(2) of the Act
In order to decide the question as to whether the appellant’s case falls
under Section 14 (1) or (2) of the Act, it is necessary to first examine as to what is the
true nature of the estate held by the testator. Second, what the testator had intended
and actually bequeathed to his wife by his Will; and lastly, the right in the property
received by Mrs. Pritam, viz., absolute interest by virtue of sub-section (1) or “life
interest” by virtue of sub-section (2) of Section 14 of the Act.
Coming now to the facts of the case, it is not in dispute that the suit house was
the self-acquired property of late Mr. Dewan. It is also not in dispute as one can take it
from reading the contents of Will that Mr. Dewan had intended to give only “life
interest" to his wife in the suit house, which he gave to her for the first time by way of
disposition of his estate independent of her any right. It is also not in dispute that it
was confined to a right of residence to live in the suit house during her lifetime and to
use the income earned from the suit house to maintain herself and the suit house. It is
also not in dispute that the testator gave to his son ground floor of the suit house and
first floor to his daughter with absolute right of ownership. The testator also permitted
both of them to get their names mutated in the municipal records as absolute owners
and also get them assessed as owners in the wealth tax assessment cases.
Applying the principle laid down in the aforementioned two cases to the facts
of the case on hand, court is of the considered opinion that the case of plaintiff No.2-
Mrs. Pritam does not fall under Section 14 (1) of the Act but it squarely falls
under Section 14 (2) of the Act. In other words, in our view, in the facts of this case,
the law laid down in Sadhu Singh’s case(supra) would apply.
Second, the testator gave the suit house in absolute ownership to
his son and the daughter and conferred on them absolute ownership. At
the same time, he gave only “life interest” to his wife, i.e., a right to live
in the suit house which belonged to son and daughter. Such disposition,
the testator could make by virtue of Section 14 (2) read with Section 30 of
the Act.
Third, such “life interest” was in the nature of “restricted estate”
under Section 14(2) of the Act which remained a “restricted estate” till her
death and did not ripen into an “absolute interest” under Section 14(1) of
the Act. In other words, once the case falls under Section 14(2) of the Act,
it comes out of Section 14(1). It is permissible in law because Section
14(2) is held as proviso to Section 14(1) of the Act.
Fourth, the effect of the Will once became operational after the
death of testator, the son and the daughter acquired absolute ownership in
the suit house to the exclusion of everyone whereas the wife became
entitled to live in the suit house as of right. In other words, the wife
became entitled in law to enforce her right to live in the suit house qua her
son/daughter so long as she was alive. If for any reason, she was deprived
of this right, she was entitled to enforce such right qua son/daughter but
not beyond it. However, such was not the case here.
Sixth, it is a settled principle of law that the “life interest” means an interest
which determines on the termination of life. It is incapable of being transferred by
such person to others being personal in nature. Such person, therefore, could enjoy
the “life interest” only during his/her lifetime which is extinguished on his/her death.
Such is the case here. Her “life interest” in the suit house was extinguished on her
death on 12.09.2016. Mr. Ranvir Dewan v. Mrs. Rashmi Khanna & Anr., 2017 (4) SCALE
201
Ss. 30, 14(1), (2) – Will – Claim for absolute estate by Hindu widow –
Will of male Hindu providing only life interest or ‘restricted interest’
for widow – Widow’s right falling u/s 14(2) – Cannot claim absolute
interest in property.
In view of foregoing discussion, we are of the considered opinion
that there is no error in the impugned judgment, which has rightly held
that the case of Mrs. Pritam (Plaintiff No. 2) falls under Section 14(2) of
the Act insofar as it relates to the suit house. Ranvir Dewan v. Mrs.
Rashmi Khanna, AIR 2018 SC 62
Indian Penal Code:
Sec. 34 – Ground for attractibility
When ingredients of Sec. 34 squarely attracted it is not required to establish
that it is any one particular accused who is responsible for causing the fatal injury.
We have taken note of the evidence tendered by the eye-witnesses
which go to show that it is Accused-1 (Bhima) and Accused-2 (Kara
Bhai), who had jointly gone to the house of the deceased and had called
him out and had taken him away. Immediately thereafter the incident had
taken place in course of which both Accused Nos.1 and 2 had attacked the
deceased with knives. In view of the said evidence on record, the
prosecution would not be required to establish that it is any one particular
accused who is responsible for causing the fatal injury inasmuch as the
ingredients of Section 34 IPC would be squarely attracted in the present
case.
For the aforesaid reasons, we are unable to find any error in the
view taken by the High Court in convicting and imposing the sentence of
life imprisonment on the appellant. Kara Bhai V. State of Gujarat 2018
(1) Supreme 119
Sec. 149 – To invoke sec. 149, essential ingredients of Sec. 141 have to
established
Sec. 149 IPC consists of two parts:
The first part of the section means that there exists common object and that
the offence has been committed in prosecution of the common object. In
order that the offence may fall within the first part, the offence must be
connected immediately with the common object of the unlawful assembly of
which the accused was member.
The second part of the section means that even if the offence committed is
not in direct prosecution of the common object of the assembly, it may yet fall
under Section149, if it can be shown that the offence was such as the
members knew was likely to be committed.
What is important in each case is to find out if the offence was committed to
accomplish the common object of the assembly or was the one which the members
knew to be likely to be committed. Once the court finds that the ingredients of Section
149 IPC are fulfilled, every person who at the time of committing that offence was a
member of the assembly has to be held guilty of that offence.
After such a finding, it would not be open to the court to see as to who
actually did the offensive act nor would it be open to the court to require the
prosecution to prove which of the members did which of the above two ingredients.
Before recording the conviction under Section 149 IPC, the essential ingredients of
Section 141 IPC must be established.Joseph V. State of Tamil Nadu, 2018 (1) Supreme
197
Sec. 149 – Vicarious liability – Every member of the unlawful
assembly would be vicariously liable for acts done by any member of
the assembly.
Creation of vicarious liability under Section 149 IPC is well
elucidated in Allauddin Mian and Others. Sharif Mian and Anr. v. State of
Bihar (1989) 3 SCC 5, this Court held:
"8. ........Therefore, in order to fasten vicarious responsibility on any member
of an unlawful assembly the prosecution must prove that the act constituting an
offence was done in prosecution of the common object of that assembly or the act
done is such as the members of that assembly knew to be likely to be committed in
prosecution of the common object of that assembly.
Under this section, therefore, every member of an unlawful assembly renders
himself liable for the criminal act or acts of any other member or members of that
assembly provided the same is/are done in prosecution of the common object or
is/are such as every member of that assembly knew to be likely to be committed.
This section creates a specific offence and makes every member of the
unlawful assembly liable for the offence or offences committed in the course of the
occurrence provided the same was/were committed in prosecution of the common
object or was/were such as the members of that assembly knew to be likely to be
committed. Since this section imposes a constructive penal liability, it must be strictly
construed as it seeks to punish members of an unlawful assembly for the offence or
offences committed by their associate or associates in carrying out the common object
of the assembly......"[underlining added]
The same principles were reiterated in paras (26) and (27) in Daya Kishan v.
State of Haryana (2010) 5 SCC 81 and also in Kuldip Yadav and Ors. v. State of Bihar
(2011) 5 SCC 324. Joseph V. State of Tamil Nadu, 2018 (1) Supreme 197
Sec. 302 – Arms Act S. 27 – Murder – Conviction – Validity – Acquittal of accused under
S. 27(3) of Arms Act for non-obtaining of prior sanction from District Magistrate –
Cannot be ground for setting aside his conviction for offence of murder.
As the conviction of the Sahayam (A3), an attempt was made that he cannot
be convicted under Section 302 IPC as Selvaraj (A2) and Sahayam (A3) were acquitted
under Section 27(2) and Section 27(3) of the Arms Act, 1959. As rightly contended by
the learned counsel for the State, the sole reason for acquittal under Section 27(2) and
Section 27(3) of the Arms Act is non-obtaining of prior sanction from District
Magistrate to prosecute the accused under the Arms Act. Hence, the acquittal of the
accused Nos. 2 and 3 under Section 27(2) and Section 27(3) of the Arms Act is of no
avail to accused No. 3. Joseph v. State of Tamil Nadu, AIR 2018 SC 93.
Sec. 307 – Appellant causing hurt to victim – Appellant rightly convicted under Part II
of Sec. 307 and sentenced to life imprisonment.
Attempts by life convicts-When any person offending under this
section is under sentence of imprisonment for life, he may, if hurt is
caused, be punished with death.”
Section 307 provides three punishments for three classes of nature
of the cases. One class of cases, which falls in first part of the Section,
prescribes a term “which may extend to ten years and fine”, second class
of cases, which falls in the second part of the Section, prescribes either
“imprisonment for life" or "such punishment, which is prescribed in first
part" and the third class of cases is when any person offending under
Section 307 IPC is under sentence of imprisonment for life, causes hurt,
be punished with “death”.
So far as the punishment prescribed in first part of the Section is
concerned, it applies to the cases where a person does any act with an
intention or knowledge and under any circumstances, caused death.
So far as the punishment prescribed in second part is concerned, it
applies to the cases where the person while committing the act falling in
first part, causes "hurt" to any person.
Here, we are concerned with class of cases falling under part one
and two.
It is for the reasons that firstly, the facts of the case squarely fall in
the second part of Section 307 IPC; secondly, gunshot injury caused by
the appellant to the victim-Shahjad was grievous in nature, thirdly, the
bullet injury was caused in the head which was the most delicate and vital
part of the body; fourthly, the facts of the case satisfied the ingredients of
the first part of Section 307 IPC, namely, all the three accused which
included the appellant had gone to the house of victim-Shahjad with a
common intention to kill the members of family and in order to
accomplish the intention, each accused targeted one member of the family
present in the room which resulted in death of a stillborn child of
Rukhsana, who was hit by gunshot in her abdomen and other two
members suffered serious gunshot injuries though both survived.
We thus find no good ground to alter the punishment awarded by
the Sessions Court, which on the facts found proved, was rightly affirmed
by the High Court. Ahsan V. State of U.P. 2017 (8) Supreme 665
Ss. 307 & 325 r/w Sec. 34 – Grievous hurt –Attracts sec. 325 and not Sec. 307
In the first place, the High Court convicted four accused persons
under Section 325 read with section 34 IPC and not under Section 307
IPC. In other words, in the opinion of the High Court, no case was made
out under Section 307 IPC, but it was essentially a case of a "grievous
hurt" falling under Section 325 IPC.
This finding of the High Court, in our opinion, is based on proper
appreciation of entire prosecution evidence and we do not find any reason
to disturb it for convicting the respondents under Section 325 IPC instead
of Section 307 IPC. Subhash Chander Bansal vs Gian Chand 2018 (1)
Supreme 342
Interpretation of Statutes:
Commencement – Mere date of enforcement not decisive to determine its
prospectivity or retrospectivity – Nature and content of statute must be looked into.
It is, however, well settled that the mere date of enforcement of statutory
provisions does not conclude that the statute is prospective in nature. The nature and
content of statute have to be looked into to find out the legislative scheme and the
nature, effect and consequence of the statute. Commissioner of Income Tax V. Ms.
Essar Teleholdings Ltd. through its Manager 2018 (1) Supreme 557
Judicial order or Judgment should be read as a whole - A single line or phrase cannot
be read out of context – A judgment cannot be interpreted like a statute.
We are not in agreement with this submission. It is settled law that a judicial
order or judgment has to be read as a whole and a single line or phrase cannot be read
out of context. A judgment is not to be interpreted like a statute. Susme Builders Pvt.
Ltd vs Chief Executive Officer, Slum Rehabilitation Authority 2018 (1) Supreme 385
Fiscal statute – Legislature, in its plenary jurisdiction, can legislate prospectively or
retrospectively – However, every statute is prima facie prospective unless made to
have retrospective operations expressly or by necessary implications.
The legislature has plenary power of legislation within the fields assigned to
them, it may legislate prospectively as well as retrospectively. It is a settled principle of
statutory construction that every statute is prima facie prospective unless it is
expressly or by necessary implications made to have retrospective operations. Legal
Maxim “nova constitutio futuris formam imponere debet non praeteritis”
Commissioner of Income Tax V. Ms. Essar Teleholdings Ltd. through its Manager 2018
(1) Supreme 557
Retrospectivity – Consideration of
The settled principle of interpretation that while the statute affecting the
substantive rights is presumed to be prospective, a statute changing the forum of
remedy and the procedure is retrospective has also not been kept in mind. These
principles are the basis of the view taken in the Unique Engineering Works and
Pradeep Kumar Gupta. The said considerations are valid and legitimate, supported by
ample authority of binding precedents of the Apex Court. Indiabulls Housing Finance
Ltd. Vs. M/s Deccan Chronicle Holdings Ltd. 2018 (2) Supreme 40
Juvenile Justice (Care and Protection of Children) Act:
Sec. 4 – Juvenile Justice Board (JJB) – Suggestion for Circuit Board in certain areas –
Appointment of social workers as members of the JJB – Has to be in accordance with
provisions of Rule 88 r/w Rule 87, Model Rules.
With regard to the establishment of JJBs, we were given to understand that
most districts now have a JJB, but it is high time that every district in every State
must have a JJB. An exception could perhaps be made such as in some districts of
Arunachal Pradesh where there is perhaps no juvenile crime or, there could be some
districts where the number of inquiries are very few in which event the JJB may
appropriately schedule its sittings. Similarly, a ̳circuit JJB‘ could be considered if there
are some adjacent districts where the number of pending inquires is quite few.
The selection of social workers as members of the JJB is required to be carried
out in accordance with the provisions of Rule 8 read with Rule 87 of the Model Rules.
It must be appreciated that the appointment of social workers is serious business, in as
much as they bring their experience - practical and professional - while conducting an
enquiry under the JJ Act. This becomes all the more important when it is appreciated
that the social workers can also conduct an enquiry independent of the Principal
Magistrate as provided for in Section 7 of the JJ Act. However, the final disposition of
the enquiry cannot be without the Principal Magistrate as mandated in the proviso to
sub-section (3) of Section 7 of the JJ Act. There is therefore a heavy responsibility on
the social workers to make a meaningful contribution during the course of an enquiry
and also at the time of its disposition.
The submissions made before us by learned counsel for the petitioner as well
as by learned counsel appearing for NALSA suggest that the JJBs do not have daily
sittings. Of course, this would depend upon the number of inquiries pending before
each JJB, but clearly if there
are a large number of inquiries pending, it is the obligation of the JJB to sit on a daily
basis so that the enquiry is concluded within the time limit prescribed by the JJ Act. It
does not serve any purpose at all if an enquiry remains pending for a considerable
period of time -no one benefits by the delay in the disposition of an enquiry. In this
context, we may also add that where a large number of inquiries are pending, it would
be worthwhile for the State Government and the High Court to consider having more
than one JJB. In Delhi, for instance, there are as many as three JJBs functioning at any
given point of time and that is because of the large number of pending enquiries.
Similar steps can be taken by some of the other State Governments as well as by the
High Courts after evaluating and making an assessment of the need for more than one
JJB being established in a district..
During the course of hearing, we had emphasized the need for a study to be
conducted by the State Governments on whether there is adequate staff available
with the JJBs. Unfortunately, the response was rather poor and we were only told that
there is adequate staff available. It must be appreciated that a JJB is virtually in the
nature of a court, although it does not conduct a trial, but only conducts an enquiry.
Nevertheless, it does need adequate staff to perform its functions in an efficient
manner. The JJB also has several administrative functions and they need due attention
so that there is effective coordination between the JJB, the officials of the Observation
Home, the police, the juvenile in conflict with law and the parents of that juvenile and
lawyers representing the police as well as the juvenile in conflict with law. These
administrative duties need attention if the JJB is to function effectively and a casual
statement that the JJB has adequate staff, though possibly correct, is neither here nor
there considering the requirements of the stake -holders who attend the enquiry
before the JJB. Sampurna Behura V. Union of India 2018 (1) Supreme 642
Sec. 68(1) – Claim of juvenility –Two different dates of birth of juvenile in
two different schools - Determination of age
Court would not be wrong to proceed on the basis that the entries
of date of birth in the school register(s) are made on the basis of the
declaration to the said effect by the parents/guardian of the child at the
time of entry of the child in the school. The earliest declaration in this
regard is in the Amar Singh Children School as well as the Central
Academy Senior Secondary School in whose registers the date of birth of
the respondent No.2 is recorded as 7th October, 1990. A perusal of the
documents in original produced by the Central Board of Secondary
Education pursuant to the order of this Court would indicate the
existence of a certificate duly signed by the Principal of the said
institutions that the particulars in the register including the date of birth
of all the students had been brought to the notice of the
parents/guardian of such students. The respondent No.2 appeared in
Class 10 examination i.e. matriculation examination from the Central
Academy Senior Secondary School in the year 2005 and the date of birth
certified by the CBSE is 7th October, 1990. After the respondent No.2
failed in Class 10 examination in the year 2005 he migrated to Paniyara
Inter College, Maharajganj, U.P. in the year 2005-2006 and there again
on the basis of his own declaration his date of birth is recorded as 10th
August, 1993. When the respondent No.2 or his parents/guardian acting
on his behalf had declared his date of birth initially as 7th October, 1990
which is recorded in the first matriculation certificate we do not see how
there can be a reasonable basis for a subsequent date i.e. 10th August,
1993 to be entered in the school record of Paniyara Inter College,
Maharajganj, U.P. to which school the respondent No.2 had migrated in
the year 2005-2006 after his failure in Class 10 examination of the CBSE.
We are, therefore, of the view that it is the first declaration of date of
birth, which is contained in the matriculation certificate issued to the
respondent No. 2 by the CBSE i.e. 7th October, 1990 which should hold
the field, a fact fortified by the own conduct of the said respondent No.2
in making a declaration to obtain a PAN card stating that his date of birth
is 12th March, 1985. On the basis of the aforesaid PAN card, the
respondent No.2 had, in fact, opened a bank account in the HDFC Bank at
Gorakhpur, Uttar Pradesh. The said matriculation certificate coupled with
the aforesaid ancillary facts lead the Court to conclude that the correct
date of birth determined in accordance with the certificate contemplated
under Rule 12 of the J.J. Rules so far as the respondent No.2 is concerned
is 7th October, 1990. He, therefore, was not a juvenile on the date of
occurrence of the incident i.e. 8th April, 2010. Consequently, the
respondent No.2 is not entitled to the benefit of the provisions of the J.J.
Act and is liable to be tried for the offence under Section 302 IPC in
accordance with the provisions of the Code of Criminal Procedure, 1973.
The accused – respondent No.2 who has been released by the Juvenile
Board will surrender before the learned trial Court within four weeks
from today where after he will be tried in accordance with law. The trial
be completed at the earliest.Lok Nath Pandey v. State of U.P., 2018 Cr.L.J.
400 (SC)
Juvenile Justice (Care and Protection of Children) Model Rules:
Rule 64 – Probation Officer – Role and functions – Training
It is clear from a reading of the above provision that a probation Officer has a
very important role to play in ensuring that a juvenile in conflict with law is given
adequate repre4sentation and a fair hearing before the JJB and the enquiry is
conducted in a manner that is conducive to the rehabilitation of the juvenile in conflict
with law. In this regard, the preparation of an individual care plan and post release
plan gain immense significance and a Probation Officer has an important role to play in
this. Sampurna Behura V. Union of India 2018 (1) Supreme 642
Land Acquisition Act:
Ss. 4 & 6 – Re–grant policy- Validity of – Re-grant of land being not permissible, the
policy of re-grant is held in violation of law
Court is of the view that the policy is in violation of law. The High
Court was justified in holding that re-grant of land is not permissible. It is
a different matter if there is policy for rehabilitation for persons displaced
by the land acquisition, in case such persons are rendered landless. If land
acquired for public purpose is no longer needed for such purpose, the
State can transfer such land but such disposal is regulated by doctrine of
public trust. Thus apart from the appellants having not been found entitled
to re-grant of the acquired land, re-grant policy itself is against Article
14 as interpreted in several decisions including in In Re: Natural
Resources Allocation, (2002) 10 SCC 1.
Accordingly, we direct that the policy of the State for re-grant may
not be given effect to in future. The State will be at liberty to frame the
appropriate policy in accordance with law for rehabilitation of the
displaced persons who are rendered landless on account of acquisition
within a period of three months. Mansukhbhai Dhamjibhai Patel &
Anr. V. State of Gujarat & Ors. 2017 (14) SCALE 239
Ss. 4 & 23-Compensation claims- Determination of- Post notification instances cannot
be taken into consideration for determining the compensation of the acquired land
Contention of the appellants/claimants are mainly three-fold:- (i) there was
only ten months difference between the notification dated 12.02.1988 and the sale
deed dated 27.12.1988 while so, the High Court was not justified in not considering
the said sale deed dated 27.12.1988 as an exemplar on the ground that the same is a
post notification; (ii) considering that the land acquired falls within municipal limits
and had immense potential for use for commercial and residential purpose, applying
the maximum cut at the rate of 67.5% was not justified; and (iii) for acquisition of the
land of the adjoining khasra by notification dated 27.03.1989, compensation was
awarded at the rate of Rs.7,26,000/- per acre by the High Court which is more than
three times higher than the compensation awarded in the present case.
So far as the first contention is concerned, the sale deed relied upon by the
appellants/claimants dated 27.12.1988 is post notification. Sub-section (1) of Section
23 of the Act provides that the compensation to be awarded shall be determined by
the reference court, based upon the market value of the acquired land at the date of
the publication of the notification under Section 4(1). In Kolkata Metropolitan
Development Authority v. Gobinda Chandra Makal and Anr. (2011) 9 SCC 207, it was
held that the relevant date for determining the compensation is the date of
publication of the notification under Section 4(1) of the Act in the Gazette. In para
(34), it was held as under:- "34. One of the principles in regard to determination of the
market value under Section 23(1) is that the rise in market value after the publication
of the notification under Section 4(1) of the Act should not be taken into account for
the purpose of determination of market value. If the deeming definition of
“publication of the notification” in the amended Section 4(1) is imported as the
meaning of the said words in the first clause of Section 23(1), it will lead to anomalous
results. The owners of the lands which are the subject-matter of the notification and
neighbouring lands will come to know about the proposed acquisition, on the date of
publication in the Gazette or in the newspapers. If the giving of public notice of the
substance of the notification is delayed by two or three months, there may be several
sale transactions in regard to nearby lands in that period, showing a spurt or hike in
value in view of the development contemplated on account of the acquisition itself."
Applying the ratio of the above decision, we are of the view that the post notification
instances cannot be taken into consideration for determining the compensation of the
acquired land. Maya Devi (d) Through LRS. & Ors. v. State of Haryana & Anr., 2018 (1)
SCALE 501
Sec. 23 – Without any evidence and considering, various factors for determining the
market rate – Not permissible
In this case, the High Court, in the absence of any evidence on any of these
issues, could not have determined one flat market rate of the acquired land in
question by applying one isolated rate of one land situated in one village Kasan and
adding 8% annual increase from 1994 in such rate and made it applicable to the entire
lands situated in 15 different villages.
The fair market value of the acquired land cannot be decided in isolation on
the basis of only one factor. There are several other factors, which govern the
determination of the rate. These factors need to be proved with sufficient
evidence.Surender Singh V. State of Haryana 2018 (2) Supreme 115
Motor Vehicles Act
Sec. 68 r/w Rule 65, Madhya Pradesh Motor Vehicles Rules, 1994 – Matter heard by
three members – Decision taken by two members – Being majority decision, held,
valid.
Although Rules, 1994 do not expressly provide that decision of the State
Transport Authority shall be taken in accordance with the opinions of the majority but
there being no special majority provided for decision to be taken in the meeting of the
State Transport Authority, normal rule that decision by majority of the members
present has to be followed. In the present case when three members were present
and quorum was complete, the decision taken by majority, i.e., opinion of two
members shall form the valid decision of the State Transport Authority.
Thus, the concept of taking decision by majority of votes of the members is
very much present in the scheme of the Rules. Although, where a decision is to be
taken by the circulation by votes a special majority is provided in Rule 65 (4) but
present being not a case of decision by circulation, simple majority by members
present was sufficient for taking a binding decision by the State Transport Authority.
In view of the foregoing discussion, we are of the opinion that decision dated
15.12.2014 issued with the signatures of Chairperson and one member was a valid
decision in spite of the fact that one of the members who was present in the hearing
when the meeting took place on 16.10.2014 and had been transferred in the
meanwhile did not sign the order. The decision of the State Transport Authority dated
15.12.2014 was fully in accordance with the statutory scheme of the Rules, 1994 and
both the learned Single Judge and Division Bench erred in holding the decision as
invalid. We, thus, are of the view that judgments of learned Single Judge and Division
Bench do not express the correct view of the law. State of Madhya Pradesh through
Principal Secretary V. Mahendra Gupta, 2018(1) Supreme 674
Sec. 147(1)—Motor insurance—Third party—Liability of insurance company
The accident took place on 24 September 2005. The appellant was 28 years old at the time of the accident. The case of the appellant is that on 24 September 2005 he was visiting Sirigere to attend an event. A demonstration of tractors was being held at 11.30 A.M. by Sonalika tractors. The appellant, who is an agriculturist, claimed that when he approached the tractor, the driver was unable to bring it to a halt as a result of which it turned turtle and collided with the appellant resulting in his sustaining grievous injuries. A first information report was registered at the Bharamasagara Police Station under Case Crime 147 of 2005 and a charge-sheet was filed against the driver for offences punishable under Sections 279 and 338 of the Penal Code. The appellant claimed compensation in the amount of Rs.25,00,000/-.
Before the Tribunal the defence of the insurer was that the appellant was riding on the mudguard of the tractor, this having been stated in the FIR. According to the insurer, the policy of insurance did not cover the risk of anyone other than the driver of the tractor. The Tribunal rejected the defence of the insurer and relied upon the testimony of the appellant which was found to have been corroborated by the evidence of PW 3, an eye-witness to the incident. On the aspect of compensation the Tribunal noted that the appellant belongs to a family of agriculturists which has a land holding of 5 acres and 25 gunthas. The appellant was married. The Tribunal did not accept the plea of the appellant that his monthly income was Rs.10,000/-, in the absence of cogent proof. The Tribunal assumed the income of the appellant to be Rs.3,000/- per month. The age of the appellant at the time of the accident being 28 years, the Tribunal applied a multiplier of 16 and computed the compensation on account of the loss of future earning capacity at Rs.5,76,000/-. An additional amount of Rs.50,000/- was awarded towards loss of amenities and Rs.30,000/- for future medical expenses. The driver, owner and insurer have been held to be jointly and severally liable.
The judgment of the Tribunal indicates that the defence of the insurer based on the first information report, the complaint Exh.P1 and the supplementary statement of the appellant at Exh.P2 was duly evaluated.
The High Court has proceeded to reverse the finding of the Tribunal purely on the basis that the FIR which was lodged on the complaint of the appellant contained a version which was at variance with the evidence which emerged before the Tribunal. The Tribunal had noted the admission of RW1 in the course of his cross-examination that the insurer had maintained a separate file in respect of the accident. The insurer did not produce either the file or the report of the investigator in the case. Moreover,
no independent witness was produced by the insurer to displace the version of the incident as deposed to by the appellant and by PW 3. The cogent analysis of the evidence by the Tribunal has been displaced by the High Court without considering material aspects of the evidence on the record. The High Court was not justified in holding that the Tribunal had arrived at a finding of fact without applying its mind to the documents produced by the claimant or that it had casually entered a finding of fact. Court is, therefore, of the view that the finding of the High Court is manifestly erroneous and that the finding of fact by the Tribunal was correct.Halappa V. Malik Sab, 2018 ACJ 686 (SC)
Ss. 149 & 166- Accident claim- Liability of Insurance Company- Determination of
It is submitted Mr. Yadunandan Bansal, lerned Counsel appearing for the
appellant that the controversy is covered by the Two-judge Bench decision in National
Insurance Company Limited v. Balakrishana and Another (2013) 1 SCC 731.
In view of the aforesaid, court think it appropriate to set aside the judgment
and order passed by the High Court and remit the matter for consideration whether
the policy in question is a “Comprehensive/package polity” or exclusively an “Act
policy”. After such consideration court shall pass a CA 7546/13 reasoned order.
Needless to say, if any other contention is available to the insured, he will be at liberty
to raise the same before the High Court. Jagtar Singh @ Jagdev Singh V. Sanjeev Kumar
and others, 2018 (1) SCALE 3
Sec. 163 – Claimant a Merchant Navy Cadet trainee – Suffering grievous injury
resulting in permanent disability in right arm marking him unfit for Merchant Navy –
Determination of compensation.
The case relates to enhancement of compensation.
The appellant, a “Dec Cadet trainee” of Merchant Navy in the Binnyship
Management Company Ltd. met with an accident resulting in grievous injury to his
right arm which resulted in permanent disability to the extent of 50% to his right arm.
The MACT awarded compensation of Rs. 6,60,000/- (Rupees Six Lacs Sixty
Thousand only) along with 9% interest per annum. The High Court enhanced the same
to Rs. 8,80.000/- along with interest.
This appeal is filed for further enhancement.
In case of permanent disability the claimant should also be compensated
towards pain, agony and trauma as a consequence of injuries; loss of amenities
(including loss of prospects of marriage); and loss of expectation of life. Ankur Kapoor
V. Oriential Insurance Co. Ltd. 2017(8) Supreme 202
Sec. 163-A(1)—Claim application—Negligence of victim—Whether in a claim proceedings u/S. 163-A, is it open to the insurance company to raise the defence/plea of negligence of victim—Held: no, permitting insurance company to raise defence of negligence would bring proceedings u/S. 163-A at par with proceedings u/S. 166 which would not only be self-contradictory but also defeat the very legislative intention
Supreme Court observed that it is clear that grant of compensation
under Section 163-A of the Act on the basis of the structured formula is in
the nature of a final award and the adjudication thereunder is required to
be made without any requirement of any proof of negligence of the
driver/owner of the vehicle(s) involved in the accident. This is made
explicit by Section 163A(2). Though the aforesaid section of the Act does
not specifically exclude a possible defence of the Insurer based on the
negligence of the claimant as contemplated by Section 140(4), to permit
such defence to be introduced by the Insurer and/or to understand the
provisions of Section 163A of the Act to be contemplating any such
situation would go contrary to the very legislative object behind
introduction of Section 163A of the Act, namely, final compensation
within a limited time frame on the basis of the structured formula to
overcome situations where the claims of compensation on the basis of
fault liability was taking an unduly long time. In fact, to
understand Section 163A of the Act to permit the Insurer to raise the
defence of negligence would be to bring a proceeding under Section
163A of the Act at par with the proceeding under Section 166 of the Act
which would not only be self-contradictory but also defeat the very
legislative intention.
For the aforesaid reasons, we answer the question arising by
holding that in a proceeding under Section 163A of the Act it is not open
for the Insurer to raise any defence of negligence on the part of the victim.
United India Insurance Co. Ltd. V. Sunil Kumar, 2018 ACJ 1 (SC)
Sec. 166- Accident claim –Enhancement of compensation for death in road accident on
29.9.1991- Determination of
In this case, PW-1 in his evidence stated that Chanchali Nayak was
earning Rs.35/- per day as wages out of the labour work. Deceased
Chanchali Nayak was an agricultural labourer. The tribunal has taken her
income at the rate of Rs.25/- per day and assessed the monthly income at
Rs.650/- per month. It is quite improbable that a labourer would be
available for such a small amount of Rs.25/- per day. The wages fixed by
the tribunal for the daily labourer at Rs.25/- per day and the monthly
income at Rs.650/- is too low. The reasoning of the tribunal that a lady
labourer may not get engagement daily is not acceptable. Even though
works like cutting of paddy and other agricultural labour may not be
available on all days throughout the year, in rural areas other kinds of
work are available for a labourer. Deceased Chanchali Nayak even though
was said to be earning only Rs.35/- per day at that time, over the years,
she would have earned more. In our view, deceased Chanchali Nayak,
being a woman and mother of three children, would have also contributed
her physical labour for maintenance of household and also taking care of
her children. The High Court as well as the tribunal did not keep in view
the contribution of the deceased in the household work, being a labourer
and also maintaining her husband, her daily income should be fixed at
Rs.150/- per day and Rs.4,500/- per month.
Taking income from the agricultural labour work at Rs.3,000/- per
month and Rs.1,500/- per month for the household work, the monthly
income of the deceased is fixed at Rs.4,500/- per month deducting 1/3rd
for personal expenses, contribution of deceased towards the family is
calculated at Rs.3,000/- per month and Rs.36,000/- per annum. Deceased
Chanchali Nayak was aged 42 years. As per the second schedule to
the Motor Vehicles Act, 1988, for the age groups 40-45 years multiplier is
"15". As per Sarla Verma (Smt.) and Others v. Delhi Transport
Corporation and Another (2009) 6 SCC 121, for the age groups 41-45
years multiplier to be adopted is "14". Therefore, the multiplier of "12"
adopted by the tribunal and the High Court may not be correct. Hence, the
multiplier of "12" adopted may not be correct. Adopting the multiplier of
"14" loss of dependency is calculated at Rs.5,04,000/- (3,000x12x14).
As per the decision of the Constitution Bench in National Insurance
Company Limited v. Pranay Sethi and Others 2017 (13) SCALE 12,
compensation of Rs.15,000/- for loss of estate and Rs.15,000/- for funeral
expenses is awarded. Thus total compensation awarded to the claimants is
enhanced to Rs.5,34,000/- payable with interest at the rate of 7% per
annum.
The impugned judgment is modified and the compensation payable
to the claimants is enhanced to Rs.5,34,000/-. The enhanced compensation
is payable with interest at the rate of 7% per annum from 27.01.2016 (the
date of judgment of the High Court) and this appeal is partly allowed.
Laxmidhar Nayak V. Jugal Kishore Behera , 2017 (13) SCALE 718
Sec. 166- Accident claim –Necessity to provide for future prospects while computing
the compensation amount under the head ‘loss of dependency’
Applying the dictum of the Constitution Bench, the appellants are
justified in insisting for grant of future prospects at the rate of 40% of the
established income.
The High Court has held that the earning of the deceased at the
relevant time can be taken as Rs.4,000/per month. The High Court did not
provide 40% towards future prospects on the established income of the
deceased. Thus, the monthly loss of dependency, in the facts of the
present case would be Rs.4,000 + 1,600 = Rs.5,600/.
In other words, instead of amount awarded by the High Court
towards loss of dependency in the sum of Rs.4,32,000/, the same will
stand modified to Rs.6,04,800/( Rupees six lakh four thousand eight
hundred only) along with interest at the rate of 9% (nine percent) per
annum. This court not disturbing the other directions given by the High
Court in respect of other heads.
The compensation awarded by the High Court is enhanced from
Rs.5,01,500/to Rs.6,74,300/[ Rupees six lakh seventy four thousand three
hundred only]. The respondent Transport Corporation is directed to
deposit the entire award amount as indicated above with interest at 9%
(nine percent) per annum less the amount already deposited if any, within
a period of eight weeks from the date of receipt of a copy of this judgment
and the appellants shall be entitled to the compensation in the proportion
specified by the Tribunal.
The first and second appellants are entitled to withdraw the amount
deposited upon verification of due application and the share of the third
appellant (minor) shall be deposited in any of the nationalised banks till
she attains majority and the second claimant/mother is entitled to
withdraw interest thereon once in three months towards meeting the needs
of the minor. Upon turning 18, the minor appellant is entitled to withdraw
her respective share. Munusamy & Ors. v.The Managing Director,
Tamil Nadu State Transport Coorporation (Villupuram) Ltd. 2018
(2) SCALE 389
Sec. 166 – When the cause or manner of death is not established, no compensation
can be awarded.
Significantly, no post-mortem was conducted. The High Court also noticed the
fact that though the accident took place on 12 January 1995, a complaint was lodged
only on 15 February 1995. As regards the evidence of the driver, the High Court noted
that while at one stage he had stated that the deceased was brought dead, at another
place he stated that he was referred to the government hospital for further treatment.
The circumstance that no post- mortem was conducted is an extremely significant
aspect of the case which in our view has justifiably weighed with the High Court.
Moreover, the High Court found that if there were three passengers in the tractor, all
of whom had known that driver Dharampal had by his negligent act run over Ram
Kanwar, the most natural conduct would have been to lodge a complaint. The person
who died was the brother of the owner of the tractor. Hence, the fact that a complaint
was not lodged for nearly one month is a significant omission in the case. The High
Court has also noticed that there were no hospital records to indicate, from the nature
of the injuries, that death had occurred due to an accident of the nature alleged.
On a careful analysis of the judgment of the High Court and the material on
the record, we find no reason to take a view at variance with that of the High Court.
The reasoning contained in the award of the Tribunal was perfunctory. The Tribunal
failed to notice crucial aspects of the case which have a bearing on the question as to
whether the death of Ram Kanwar was caused as a result of the accident caused by
the tractor. Each of the circumstances relied upon by the High Court is germane to the
ultimate conclusion that a false case was set up to support a claim for compensation.
The appellants have not been able to displace the careful analysis of the evidence by
the High Court and the findings which have been arrived at.
For the above reasons, we find no merit in the appeals. The appeals are
accordingly dismissed. There shall be no order as to costs. Anil V. New India Assurance
Co. Ltd. 2018 (1) Supreme 135
Sec. 166 – Deceased aged 29 – Proper application of multiplier
One Solu Kumar Goyal driving a motor cycle was knocked down by a truck and
died on the sport. The MACT awarded a compensation of Rs. 4, 31,000/-. High Court
refused to interfere.
While determining compensation, correct multiplier should be applied and
compensation for future prospects granted.
However, we find merit in the submission which has been urged on behalf of
the appellants that the Tribunal failed to apply the correct multiplier and erred in not
grating the benefit of future prospects in computing the income of the deceased and
the loss of dependency. Having due regard to the judgment delivered by the
Constitution Bench of this Court in National insurance Company Li8mited V. Pranay
Sethi, (2017) 13 SCALE 12 and in Sarla Verma V. Delhi Transport Corporation, (2009) 6
SCC 121 : (2009) 3 Supreme 487 the correct multiplier should be 17 having regard to
the age of the deceased. An addition of 40 per cent towards future prospects would
also be warranted in terms of the judgment of the Constitution Bench. On this basis
and since the deceased was a bachelor, the loss of dependency would work out to Rs.
8, 56,800/-. The appellants would be entitled to an amount of Rs. 15,000/- towards
loss of estate and Rs. 15,0000/- towards funeral expenses. The award of compensation
accordingly stands quantified at Rs. 8,86,800/-. The appellants are allowed interest @
7.5% p.a. from the date of the filing of the petition before the M.A.C.T. till realization.
Shri Nagar Mal V. The Oriential Insurance Company Ltd. 2018 (1) Supreme 133
Sec. 166 – Compensation – Future prospects – Deceased aged 42 years – Self
employed – Future prospects cannot be denied
The judgment of a Constitution Bench of this Court in National Insurance
Company Limited v Pranay Sethi1 settles the issue. The deceased was self-employed.
In such a case, future prospects cannot be denied. The grant must be in accordance
with the following principle set down in the judgment:
"(iv) In case the deceased was self-employed or on a fixed salary, an addition
of 40% of the established income should be the warrant where the deceased was
below the age of 40 years. An addition of 1 (2017) 13 SCALE 12 3 25% where the
deceased was between the age of 40 to 50 years and 10% where the deceased was
between the age of 50 to 60 years should be regarded as the necessary method of
computation. The established income means the income minus the tax component."
Since the deceased was 42 years of age, an addition of 25% on the ground of future
prospects would be warranted instead of 30% computed by the Tribunal. Reliance
General Insurance Company Ltd. V. Shalu Sharma 2018 (1) Supreme 469
Negligence—Contributory negligence—Determination of
On behalf of the appellant, it has been submitted that both the tribunal and
the High Court were manifestly in error in holding the appellant to be guilty of
contributory negligence to the extent of forty per cent. It has been submitted that the
tribunal as well as the High Court proceeded on the erroneous premise that since the
appellant had failed to produce the driving licence, an adverse inference on the aspect
of contributory negligence would have to be drawn. Moreover, it was submitted that
the entire discussion on contributory negligence is conjectural and is not worthy of
acceptance. In this regard, reliance was placed on the judgment of this Court in Sudhir
Kumar Rana v. Surinder Singh, 2008 ACJ 1834 (SC).
Insofar as the judgment of the High Court is concerned, the Division Bench has
placed a considerable degree of importance on the fact that there was no visible
damage to the lorry but that it was the motor cycle which had suffered damage and
that there was no eye-witness. We are in agreement with the submission which has
been urged on behalf of the appellant that plea of contributory negligence was
accepted purely on the basis of conjecture and without any evidence. Once the finding
that there was contributory negligence on 1 (2008) 12 SCC 436 the part of the
appellant is held to be without any basis, the second aspect which weighed both with
the tribunal and the High Court, that the appellant had not produced the driving
licence, would be of no relevance. Dinesh Kumar J. V. National Insurance Co. Ltd., 2018
ACJ 535 (SC)
Quantum—Fatal accident—Principles of assessment—Future prospects—Whether
higher percentage of additional for future prospects than the standard percentage as
fixed in Pranay Sethi, 2017 ACJ 2700 (SC), is permissible where satisfactory evidence is
available—Held: yes.
In present case, it is submitted that the view taken by this Court in National
Insurance Co. Ltd. v.. Pranay Sethi, 2017 ACJ 2700 (SC), is no bar to future prospects
being taken at level higher than 25 per cent in case the deceased above 40 years or 50
per cent in case the deceased was below 40 years if the evidence on record so
warrants. It is submitted that standardization may be the increase (sic) based on
presumption but when there is an actual evidence led to the satisfaction of the
Tribunal/court that future prospects was higher than the standard percentage, there is
no bar to the court/Tribunal awarding higher compensation on that basis.
In the present case, the Tribunal has applied the correct principle of law and
made the component of future prospects higher than the standard percentage. The
High Court held that the Tribunal could not have gone beyond the standard
percentage. To that extent, the view taken by the High Court cannot be sustained.
Accordingly, Court set aside the order of the High Court and restore the order
of the Tribunal. Hem Raj V. Oriental Insurance Co. Ltd., 2018 ACJ 5 (SC)
Negotiable Instruments Act:
Sec. 138 – Advocate’s fee – Merely by issuance of a cheque no presumption could
arise that the amount in the cheque was payable towards fee – In absence of
independent proof, issuance of cheque could not furnish cause of action u/s 138.
One of the issues was dealt with by a single Bench Judgment of the Madras
High Court in C. Manohar versus B.R. Poornima5. R. Banumathi, J (as her Lordship then
was) held that no presumption could arise merely by issuance of a cheque that
amount stipulated in the cheque was payable towards fee. In absence of independent
proof, issuance of cheque could not furnish cause of action under Section 138 of the
Act in the context 4 J.S. Vasu versus State of Punjab (1994) 1 SCC 184, para 20 5 (2004)
Crl.L.J 443 of an advocate or client. B. Sunitha V. The State Of Telangana 2018 (1)
Supreme 190
Sec. 138 – Dishonour of cheque – Legally enforceable debt – Cheque in
question issued to advocate towards fees claimed on basis of percentage
of subject-matter in litigation
Thus, mere issuance of cheque by the client may not debar him
from contesting the liability. If liability is disputed, the advocate has to
independently prove the contract. Claim based on 7 (1955) 1 SCR 490 8
(1979) 1 SCC 308, para 31 percentage of subject matter in litigation
cannot be the basis of a complaint under Section 138 of the Act.
In view of the above, the claim of the respondent advocate being against
public policy and being an act of professional misconduct, proceedings in the
complaint filed by him have to be held to be abuse of the process of law and have to
be quashed.B. Sunitha V. State of Telengana, 2018 Cr.L.J. 715 (SC)
Ss. 138 and 141 – High Court negating need to take cognizance of an offence accused-
wise – A correct law in the background of the scheme of the Cr.P.C. – Not correct in
case of the Act.
The High Court failed to appreciate that the liability of the appellant (if any in
the context of the facts of the present case) is only statutory because of his legal status
as the DIRECTOR of DAKSHIN. Every person signing a
cheque on behalf of a company on whose account a cheque is drawn does not become
the drawer of the cheque. Such a signatory is only a person duly authorised to sign the
cheque on behalf of the company/drawer of the cheque. If DAKSHIN/drawer of the
cheque is sought to be summoned for being tried for an offence under Section 138 of
THE ACT beyond the period of limitation prescribed under THE ACT, the appellant
cannot be told in view of the law declared by this Court in Aneeta Hada that he can
make no grievance of that fact on the ground that DAKSHIN did not make any
grievance of such summoning. It is always open to DAKSHIN to raise the defense that
the initiation of prosecution against it is barred by limitation. DAKSHIN need not
necessarily challenge the summoning order. It can raise such a defense in the course
of trial.
Coming to the view of the High Court that only the offence is taken
cognizance of and there is no need to take cognizance of an offence
accused-wise is an erroneous view in the context of a prosecution under THE ACT.
Such a statement of law was made by this Court in the background of the
scheme of the CrPC.
The CrPC is an enactment which is designed to regulate the procedures
governing the investigation of crimes in order to get the perpetrators of the crime
punished. A crime is an act or omission prohibited by law attracting certain legal
consequences like imprisonment, fine etc. Obviously, acts or omissions constituting
offences/crimes are capable of being committed only by persons either natural or
juridical.
The scheme of the prosecution in punishing under Section 138 of THE ACT is
different from the scheme of the CrPC. Section 138 creates an offence and prescribes
punishment. No procedure for the investigation of the offence is contemplated. The
prosecution is initiated on the basis of a written complaint made by the payee of a
cheque. Obviously such complaints must contain the factual allegations constituting
each of the ingredients of the offence under Section 138.
Otherwise in the absence of any authority of law to investigate the offence
under Section 138, there would be no person against whom a Court can proceed.
There cannot be a prosecution without an accused. The offence under Section 138 is
person specific. Therefore, the Parliament declared under Section 142 that the
provisions dealing with taking cognizance contained in the CrPC should give way to the
procedure prescribed under Section 142. Hence the opening of non-obstante clause
under Section 142. It must also be remembered that Section 142 does not either
contemplate a report to the police or authorize the Court taking cognizance to direct
the police to investigate into the complaint. N. Harihara Krishnan V. J. Thomas 2017
(8) Supreme 674
Sec. 142 r/w clause (c) Proviso, Sec. 138 – Limitation – Cognizance of an offence u/s
138 – Cannot be taken unless complaint is filed within one month of cause of action.
Section 142 of the Act inter alia stipulates that no court shall take cognizance
of any offence punishable under Section 138 unless a complaint is made within one
month of the date on which the cause of action arises under clause (c) of the proviso
to Section 138. Therelevant portion of Section 142 reads as follows:-
“142 Cognizance of offences. —Notwithstanding anything contained in the
Code of Criminal Procedure, 1973—
(a) no court shall take cognizance of any offence punishable under section 138
except upon a complaint, in writing, made by the payee or, as the case may
be, the holder in due course of the cheque;
(b) such complaint is made within one month of the date on which the cause of
action arises under clause (c) of the proviso to section 138:
Provided that the cognizance of a complaint may be taken by the Court after the
prescribed period, if the complainant satisfies the Court that he had sufficient
cause for not making a complaint within suchperiod.” N. Harihara Krishnan V. J.
Thomas 2017 (8) Supreme 674
Practice and Procedure:
Precedents- Doctrine of per incuriam- Where there is a detailed judgment of the High
Court dealing with several authorities, and it is reversed in a cryptic fashion without
dealing with any of them, the judgment loses binding force
It is clear, therefore, that where a matter is not argued at all by the
respondent, and the judgment is one of reversal, it would be hazardous to
state that the law can be declared on an ex parte appraisal of the facts and
the law, as demonstrated before the Court by the appellant’s counsel
alone. That apart, where there is a detailed judgment of the High Court
dealing with several authorities, and it is reversed in a cryptic fashion
without dealing with any of them, the per incuriam doctrine kicks in, and
the judgment loses binding force, because of the manner in which it deals
with the proposition of law in question. Also, the ratio decidendi of a
judgment is the principle of law adopted having regard to the line
of reasoning of the Judge which alone binds in future cases. Such
principle can only be laid down after a discussion of the relevant
provisions and the case law on the subject. If only one side is heard and a
judgment is reversed, without any line of reasoning, and certain
conclusions alone are arrived at, without any reference to any case law, it
would be difficult to hold that such a judgment would be binding upon us
and that we would have to follow it. Jayant Verma & Ors. v. Union of
India & Ors. 2018 (3) SCALE 156
Prevention of Money Laundering Act:
Sec. 3 - Offence of money laundering – Proceeds of crime – Possession of
demonetized currency – Accused allegedly converting said currency by
bank drafts – Act if accused indicating mens rea – Falls within meaning of
S. 3
As the fulcrum of Section 3 quoted above, is expression
‘proceeds of crime', the dictionary clause in the form of Section 2(1)(u)
is of some relevance. The same reads thus :
“2(1)(u) ‘proceeds of crime’ means any property derived or
obtained, directly or indirectly, by any person as a result of
criminal activity relating to a scheduled offence or the value of any such
property or where such property is taken or held outside the country,
then the property equivalent in value held within the country”. It will
be useful to advert to the meaning of expression “property”as
predicated in Section 2(1)(v), The same reads thus :
“2(1)(v) “property” means any property or assets of every
description, whether corporeal or incorporeal, movable or
immovable, tangible or intangible and includes deeds and
instruments evidencing title to, or interest in, such property or
assets, wherever located;
The expression ‘scheduled offence’ has been defined in Section 2(1)(y) of the
Act of 2002. The same reads thus :
“2(1)(y) ‘scheduled offence' means
(i) the offences specified under Part A of the Schedule; or
(ii) the offences specified under Part B of the Schedule if the
total value involved in such offences is one crore rupees or
more; or
(iii) the offences specified under Part C of the Schedule;”
Indisputably, the predicate offence is included in Part A in
paragraph 1 of the Schedule in the Act of 2002, in particular
Sections 420, 467, 471 and 120B of IPC. Indeed, the expression
“criminal activity” has not been defined. By its very nature the alleged
activities of the accused referred to in the predicate offence are criminal
activities.
The possession of
demonetized currency in one sense, ostensibly, may appear to
be only a facet of unaccounted money in reference to the provisions of
the Income Tax Act or other taxation laws.
However, the stated activity allegedly indulged into by th
e accused named in the commission of predicate offence is
replete with mens rea. In that, the concealment, possession,
acquisition or use of the property by projecting or claiming it as
sustained property and converting the same by bank drafts, would
certainly come within the sweep of criminal activity
relating to a scheduled offence. That would come within the
meaning of Section 3 and punishable under Section 4 of the
Act, being a case of money laundering. The expression ‘money
laundering' is defined thus :-
“2(1)(p) “money laundering” has the meaning assigned to it
in section 3. Rohit Tandon V. Enforcement Directorate, 2018 Cr.L.J. 416
(SC)
Sec. 45 – Bail – Factors to be considered
It has been expounded that the Court at the stage of considering the
application for grant of bail, shall consider the question from the angle as to whether
the accused was possessed of the requisite mens rea. The Court is not required to
record a positive finding that the accused had not committed an offence under the
Act. The Court ought to maintain a delicate balance between a judgment of acquittal
and conviction and an order granting bail much before commencement of trial. The
duty of the Court at this stage is not to weigh the evidence meticulously but to arrive
at a finding on the basis of broad probabilities. Further, the Court is required to record
a finding as to the possibility of the accused committing a crime which is an offence
under the Act after grant of bail.
Keeping in mind the dictum in the aforesaid decisions, we find no difficulty in
upholding the opinion recorded by the Sessions Court as well as the High Court in this
regard. In our opinion, both the Courts have carefully analyzed the allegations and the
materials on record indicating the complicity of the appellant in the commission of
crime punishable under Section 3/4 of the Act of 2002. The Courts have maintained
the delicate balance between the judgment of acquittal and conviction and order
granting bail before commencement of trial. The material on record does not
commend us to take a contrary view. Rohit Tandon V. The Enforcement Directorate
2017 (8) Supreme 249: 2018 Cr.L.J. 416 (SC)
Sec. 45 – Interpretation of statute – Reading down – Merely reading down the two
conditions would not get rid of the vice of manifest arbitrariness and discrimination –
Contention that the twin conditions are akin to conditions for grant of ordinary bail
rejected.
In this case, the learned Attorney General has argued before us that we must
uphold Section 45 as it is part of a complete code under the 2002 Act. According to
him, Section 45, when read with Sections 3 and 4, would necessarily lead to the
conclusion that the source of the proceeds of crime, being the scheduled offence, and
the money laundering offence, would have to be tried together, and the nexus that is
provided is because the source of money laundering being as important as money
laundering itself, conditions under Section 45 would have to be applied. We are afraid
that, for all the reasons given by us earlier in this judgment, we are unable to agree.
The learned Attorney General asked us to read down Section 45 in that when the
Court is satisfied that there are reasonable grounds for believing that a person is not
guilty of an offence, it only meant that the Court must prima facie come to such a
conclusion. Secondly, the fact that he is not likely to commit “any offence” while on
bail would only be restricted to any offence of a like nature. Again, we are afraid that
merely reading down the two conditions would not get rid of the vice of manifest
arbitrariness and discrimination, as has been pointed out by us hereinabove. Also, we
cannot agree with the learned Attorney General that Section 45 imposes two
conditions which are akin to conditions that are specified for grant of ordinary bail. For
this purpose, he referred us to Amarmani Tripathi (supra) at para 18, in which it was
stated that, for grant of bail, the Court has to see whether there is prima facie or
reasonable ground to believe that the accused has committed the offence, and the
likelihood of that offence being repeated has also be seen. It is obvious that the twin
conditions set down in Section 45 are a much higher threshold bar than any of the
conditions laid down in paragraph 18 of the aforesaid judgment. In fact, the
presumption of innocence, which is attached to any person being prosecuted of an
offence, is inverted by the conditions specified in Section 45, whereas for grant of
ordinary bail the presumption of innocence attaches, after which the various factors
set out in paragraph 18 of the judgment are to be looked at. Under Section 45, the
Court must be satisfied that there are reasonable grounds to believe that the person is
not guilty of such offence and that he is not likely to commit any offence while on bail.
Nikesh Tarachand Shah V. Union of India 2017(8) Supreme 529
Provincial Small Cause Courts Act
Sec. 25- Revision petition- Scope of
This appeal has been filed against the judgment dated 26.8.2014 of High Court
of Uttarakhand in Civil Revision No. 32 of 2010 by which judgment High Court has
allowed the Revision and set aside the order passed by the Judge, Small Causes Court
directing the eviction of the respondent-tenant with recovery of rent and damages.
The landlord aggrieved by the judgment has come up in this appeal.
There are very limited grounds on which there can be interference in exercise
of jurisdiction under Section 2, they are, when (i) Findings are perverse or (ii) based on
no material or (iii) Findings have been arrived at upon taking into consideration the
inadmissible evidences or (iv) Findings have been arrived at without consideration of
relevant evidences .
Present is not a case where High Court set aside the finding of the Trail Court
on any of above grounds where Revisional Court under Section 25 can interfere. High
Court has not even referred to the reasons given by the Trial Court while coming to the
conclusion that the rate of rent is Rs. 1500/- per month. Court is of the view that
judgment or the High Court is unsustainable. Trilok Singh Chauhan v. Ram Lal (Dead)
Thr. LRS. & Ors., 2017 (14) SCALE 217
Public Interest Litigation:
National Anthem – Has to be respected as salutation to the mother land – List of
occasions cannot be exhaustively stated – Proper decorum has to be maintained when
the National Anthem is played or sung.
To appreciate the submissions advanced at the Bar, it is necessary to refer to
Section 3 of the 1971 Act. It reads as under:-
“3. Prevention of singing of National Anthem, etc..- Whoever intentionally
prevents the singing of the Indian National Anthem or causes disturbances to
any assembly engaged in such singing shall be punished with imprisonment for
a term, which may extend to three years, or with fine, or with both.”
On a perusal of the said provision, it is clear as day that no one can
intentionally prevent the singing of the National Anthem or cause any disturbance to
an assembly engaged in such singing. It is a penal provision. The Orders relating to the
National Anthem deal with playing of the anthem, mass singing of the anthem, playing
of foreign anthems and general provisions. Clause III(4) of the orders reads as follows:-
“III(4). It is not possible to give an exhaustive list of occasions on which the
singing (as distinct from playing) of the Anthem can be permitted. But there is
no objection to the singing of the Anthem accompanied by mass singing so
long as it is done with due respect as a salutation to the motherland and
proper decorum is maintained.”
On a careful reading of the above provision, it is clear that the said Order
states that it is not possible to give an exhaustive list of the occasions. It further lays
down that there is no objection to the singing of the National Anthem accompanied by
mass singing so long as it is done with due respect as a salutation to the motherland
and maintenance of the proper decorum. Thus, three aspects are obvious: First the
National Anthem is not only to be respected, but it is a respect as a salutation to the
motherland; second, the list of occasions cannot be exhaustively stated; and, third,
proper decorum has to be maintained when the National Anthem is played or sung.
In view of the aforesaid, we think it appropriate that the Committee should
comprehensively look into all the aspects. Mr. K.K. Venugopal, learned Attorney
General for India has submitted in the course of argument that the petitioner can give
suggestions by way of representation to the Committee. Mr. V.K. Biju and Ms. Nanita
Sharma, learned counsel and Mr. Sanjeev Bhatnagar, the applicant in-person can also
give suggestion in this regard. When we say suggestions, we mean that suggestions
shall only relate to the National Anthem and nothing else. Shyam Narayan Chouksey V.
Union of India, 2018 (1) Supreme 291: 2018(1) SCALE 197
Public Premises (Eviction of Unauthorized Occupants) Act:
Sec. 9 – In Absence of procedure – Does not make him persona designata.
The fact that there is no express indication in the 1971 Act about the
procedure to be adopted or followed by the appellate officer, it would not follow
therefrom that the District Judge or designated judicial officer who hears the appeals
under Section 9, does so not as a Court but as a persona designata. For the reasons
already alluded to we have no hesitation in holding that the remedy of appeal under
Section 9 before the Appellate Officer is not as a 57 persona designata but to a pre-
existing judicial authority. Life Insurance Corporation of India V. Nandini J. Shah 2018
(1) Supreme 705
Rent Control Laws:
Not necessary for landlord to make out all grounds which he has taken in the plaint for
claiming eviction of the tenant – Even if one ground is made out, landlord would be
entitled to eviction of tenant.
There can be no dispute to the legal proposition that even if the landlord is
able to make out only one ground out of several grounds of the eviction, he is entitled
to seek the eviction of his tenant from the suit premises on the basis of that sole
ground which he has made out under the
Rent Act.
In other words, it is not necessary for the landlord to make out all the grounds
which he has taken in the plaint for claiming eviction of the tenant under the Rent Act.
If one ground of eviction is held made out against the tenant, that ground is sufficient
to evict the tenant from the suit premises. Flora Elias Nohoum V. Indrish Ali Laskar
2018(1) Supreme 350
Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and
Settlement Act:
Sec. 24- Land Acquisition Act, 1894- Ss. 4, 6, 12,31 & 34- Lapse of acquisition
proceedings- Provision of Section 24(2) of the 2013 Act cannot be invoked in cases of
dead claims or stale claims- Act of failure to deposit money u/s 31 of the Land
Acquisition Act, after possession is taken only imposes liability to pay higher interest
u/s 34 of the Act- Cases in which there is deliberate action of the owners for not
collecting the compensation and they do not want to receive it, Sec. 24(2) of the 2013
Act does not come to their rescue
In the instant case, the case is liable to be dismissed on the ground of delay
and laches. By no stretch of the imagination, the principles enumerated in Section
24 of the Act of 2013 can be permitted to invoke. We are not inclined to entertain
such a stale claim after 105 years of acquisition.
The court is duty bound to prevent the abuse of the process of law in the cases
which have been concluded several decades before, in courts considered opinion, the
provisions of Section 24(2) of the 2013 Act cannot be invoked in such cases of dead
claims or stale claims. There are several numbers of cases coming to this court in
which matters had been contested up to this court questioning the acquisition and the
petitions have been dismissed by this court, and acquisition has attained finality,
possession was taken, the award passed. Notice had been issued under Section
12(2) of the Act tendering the awarded amount but it has not been collected by
the claimants/land owners deliberately or they had refused to collect it and are not
ready and willing to accept it and, thereafter, it has been deposited in the name and
account of the owners in the treasury which is also deposited as per the State
Government’s instructions issued time to time relating to how Government money is
to be dealt with. The act of failure to deposit money under section 31 after possession
is taken only imposes liability to pay higher interest under section 34. The acquisition
would not lapse under the Act.
In our opinion, the cases in which there is deliberate action of the owners for
not collecting the compensation and they do not want to receive it, section 24(2) of
the 2013 Act does not come to their rescue as provisions are to help those persons
who are deprived of compensation but not for those who deliberately had not
received it and litigated for decades for quashing of proceedings avoiding to receive
compensation by willful act. The failure to deposit in court under section 31(1) in such
cases would attract only interest as envisaged under section 34 of the Act and the
provisions of section 24 cannot be so invoked in such cases. Mahavir & Ors. V. Union
of India & Anr., 2018 (1) SCALE 174
Right to Information Act:
Ss. 8, 9 and 11 – Scope of
Furnishing of marks of Civil Services exam cannot be mechanically directed.
Weighing the need for transparency and accountability on the one
hand and requirement of optimum use of fiscal resources and
confidentiality of sensitive information on the other, we are of the view
that information sought with regard to marks in Civil Services Exam
cannot be directed to be furnished mechanically. Situation of exams of
other academic bodies may stand on different footing.
Furnishing raw marks will cause problems as pleaded by the UPSC as quoted
above which will not be in public interest. However, if a case is made out where the
Court finds that public interest requires furnishing of information, the Court is
certainly entitled to so require in a given fact situation. If rules or practice so require,
certainly such rule or practice can be enforced. In the present case, direction has been
issued without considering these parameters. Union Public Service Commission V.
Angesh Kumar, 2018 (2) Supreme 60
Service Law:
All India Services ( Death-cum-Retirement Benefits) Rules, 1958 - Rule 6(1) –
Disciplinary proceedings- Continuation of proceedings after retirement from service
proceedings can be continued against the appellant- if grave misconduct has been
found in term of Sect. 6(i)
In the present case the learned senior counsel appearing for the
Union of India and the State of West Bengal have invited our attention to
Rule 6(1) of the All India Services (Death-cum-Retirement Benefits)
Rules, 1958 Signature Not Verified and submit that the departmental
proceedings can be Digitally signed by continued for the purpose of
withholding the pension or gratuity, or both, either in full or in
part, whether permanently or for a specified period and even for recovery
from pension or gratuity of the whole or in part if any pecuniary loss has
been caused to the Central or State Government.
No doubt, such recovery is permissible only if the pensioner is
found, in a departmental proceeding, to have been guilty of grave
misconduct or to have caused pecuniary loss to the Central or State
Government, by misconduct or negligence during his service, including
the service rendered on reemployment after retirement.
Now that the Inquiry Report has been submitted, it is for the
Central Government to take a decision as per the procedure prescribed
under the Rules. Ultimately if the appellant is found guilty of a grave
misconduct, then only the question of impact on pension arises and that
stage has not arisen yet. These are all matters for the disciplinary authority
to consider while passing final orders. In the facts of this case, court direct
the Central Government to give an opportunity of hearing to the appellant
before final orders on recovery, if any, are passed. It is for the appellant to
raise all these contentions when the Central Government takes a decision
under Rule 6(1). Dr. Nazrul Islam V. Union of India 2017 (14) SCALE
235
Compassionate Appointment – Bipartite Agreement – A female dependant, if below 45
years of age, has an option either to accept the monetary compensation or
employment- it is not an option reserved to the employer, but an option given to the
employee
This Court in Canara Bank & Anr. vs. M. Mahesh Kumar, reported
in (2015) 7 SCC 412 and submitted that compassionate appointment is not
a matter of right and there is a discretion available to the employer. We
have no quarrel with the settled position, but the instant case is not a case
of discretionary compassionate appointment governed by any statutory
guidelines. It is governed by a Scheme, as agreed to by the parties and
which has become part of the Bipartite Agreement. The terms of the
Agreement are very specific and give no room for any discretion.
In paragraph 9.5.0(ii) of the Agreement, it is very clearly and
specifically mentioned that a female dependant, if below 45 years of age,
has an option either to accept the monetary compensation or employment.
It is not an option reserved to the employer, but an option given to the
employee. It was in terms of the Agreement only that the appellant had
been insisting that she should be given employment, if she is otherwise
eligible in terms of the Bipartite Agreement. But the second respondent
kept on insisting that the son, being above the age of 12 years, would be
kept on live roster until he attains the age of 18 years and till such time,
the appellant would be given compensation @ Rs. 3,000/- per month in
terms of Paragraph 9.5.0(iii) of the Agreement.
Having regard to the entire facts and circumstances of the case, we are of the
view that the interests of justice would be met and complete justice to the appellant
will be rendered in case the appeal is disposed of as follows:- I) The second respondent
is directed to appoint one son of the appellant, who has otherwise become major as of
now, as per the choice of the appellant, within two months from today. Needless to
say that the appointment will be commensurate with the qualification and entitlement
of the incumbent. II) From 01.02.2004, as ordered by the High Court, the appellant
shall be paid Rs. 3,000/- per month along with interest at the rate of 7.5% from the
respective dates when the amount became due. III) Towards all other claims on
account of loss of employment for the last 13 years, as far as the appellant is
concerned, it would be just, fair and reasonable that a lumpsum amount is paid to the
appellant, which we fix as Rs. 5,00,000/- (Rupees Five Lakhs). This amount shall also be
paid to the appellant within two months from today. Smt. Subhdra V. The Ministry of
Coal and Anr. 2018 (1) SCALE 560
Departmental Proceedings and criminal proceedings – Two separate proceedings in
law – Can be conducted independently, as instantly
Departmental proceedings and criminal proceedings are two separate
proceedings in law and can be conducted independently.
Standard of proof being different, acquittal in criminal proceeding would be of
no avail. Departmental proceeding is not required to be stayed in view of criminal
proceedings. Management of Bharat Heavy Electricals V. M. Mani 2017 (8) Supreme
225
Misconduct – Acts of corruption/misappropriation cannot be condoned, even in cases
where the amount involved is meager
It is no more res integra that acts of corruption/ misappropriation
cannot be condoned, even in cases where the amount involved is meager.
Uttarakhand Transport Corporation (Earlier known as UPSRTC) V.
Sukhveer Singh 2017(8) Supreme 282
Regularization – Appointment made without advertisement and any
recommendation of selection panel – Appointment not made by
competent authority – Posts not sanctioned – Held, appointment not
in accordance with law.
We note Civil Appeal No. 2356 of 2018 Page 7 of 11 that the cases of these
persons, including the appellant, were duly considered by the University, on the basis
of which order dated August 13, 2003 were passed refusing regularization. This order
specifically states that the initial appointment of the appellant and others was not in
accordance with law. It was made without advertisement and there was no
recommendation of panel by the Selection Committee. So much so, the appointments
were not made by the competent authority. We find that the University, or for that
matter, the Government had agreed to regularize the services of those employees of
the colleges, which had become the Constituent Colleges, only on the condition that
their initial appointment was after following the due procedure and that too against
the sanctioned post. A statement was made at the Bar by learned counsel for the
respondent that there were no sanctioned posts even now.
Law pertaining to regularization has now been authoritatively determined by a
Constitution Bench judgment of this Court in Secretary, State of Karnataka Ors. v.
Umadevi Ors., (2006) 4 SCC 1. On the application of law laid down in that case, it is
clear that the question of regularisation of daily wager appointed contrary to law does
not arise. This ratio of the Civil Appeal No. 2356 of 2018 Page 8 of 11 judgment could
not be disputed by the learned counsel for the appellant as well. That is why she
continued to plead that the appointment of the appellant was made after following
due procedure and in accordance with law. However, that is not borne from the
records. It may be mentioned that in Uma Devi, the Court left a small window opened
for those who were working on ad hoc/ daily wage basis for more than ten years, to
regularize them as a one-time measure. However, that was also subject to the
condition that they should have been appointed in duly sanctioned post. Further,
while counting their ten years period, those cases were to be excluded where such
persons continued to work under the cover of orders of the courts or the tribunal. The
High Court has, in the impugned judgment, discussed these nuances and has also
referred to the judgment in Uma Devi and held that the benefit of one-time measure
suggested in that case could not be extended to the appellant.
We are, thus, of the view that there is no merit in this appeal, which is
accordingly dismissed. Upendra Singh V. State of Bihar 2018 (1) Supreme 746
Regularization – Can be claimed while in service, not after
termination.
This case relates to regularization of services of temporary and
daily wages employees.
One cannot dispute that the State has the power to appoint persons for a
temporary period under the Act and Rules framed thereunder and once such power
was exercised by the State, the status of such appointee continued to be that of
temporary employee notwithstanding grant of some extensions to them for some
more period.
In other words, the grant of extension to work for some more period to the
writ petitioners could never result in conferring on them the status of a permanent
employee or/and nor could enable them to seek regularization in the services unless
some Rule had recognized any such right in their favour.
That apart, when the period fixed in the appointment orders expired in the
year 1991 then there was no scope for the appellants to have claimed continuity in
service for want of any extension order in that behalf. Baj Balam Prasad V. State of
Bihar 2018 (1) Supreme 12
Specific Relief Act:
Ss. 12, 13, 14, & 15- Suit for permanent injunction – Issue of ‘Lawful possession’ -
Consideration of
Though the appellants/defendants disputed the title and possession of
the plaintiff over site no.47, the defendants have merely averred that the
documents relied upon by the plaintiff that is agreement of sale (09.09.1986) and
general power of attorney (03.05.1988) are forged and not acceptable. Nothing
further has been elicited from PW2 to show that he had no right to sell site
no.47 to the plaintiff.
Contention of appellants/defendants is that site no.47 is not covered
under the sale deed in favour of Madhavan Pillai (21.04.1975). Further contention of
appellants is that merely on the basis of registered power of attorney, title and
ownership of immovable property (site no.47) could not have been transferred to the
plaintiff. Court refrain from going into the merits of this contention for two
reasons. Firstly, since the present suit and further appeal thereon emanates
from the suit pertaining to permanent injunction where the touchstone upon which
the suit has to be decided is "lawful possession" and not "ownership".
Secondly, appellants/defendants have filed separate suit in O.S.No.5327 of 1995
against Madhavan Pillai and the respondents, for a declaration that appellants are
the owners of 'B' Schedule property thereon (which includes site no.47) and
other reliefs. As seen from the additional documents filed before us, the
said suit has been dismissed on 17.12.2016 against which an appeal is said
to have been filed and pending. Therefore, we deem it appropriate, not to express
any opinion on the question of title and ownership of respondent/plaintiff on the basis
of registered general power of attorney. Sunkamma (d) by LRs v. Pushparaj (D) by LRs.
2017 (14) SCALE 322
Sec. 16 – Suit for specific performance - Readiness and willingness to perform the
contract – Consideration of –It means the capacity of the plaintiff to perform the
contract which would include the financial position to pay the purchase price
In so far as the present appeal is concerned, the material on record
clearly indicates that Rakesh Kumar did not have the necessary funds
available with him to pay the balance consideration. His low income and
low bank balance indicated his incapacity to make the balance payment.
As far as his capacity to arrange for funds is concerned, it has come on
record that Rakesh Kumar did take a loan from his cousin but that was
only for his business and not for paying the balance consideration for the
land in dispute. There is nothing on record to indicate that Rakesh Kumar
could have not only repaid the loan taken from his cousin, but
additionally, could have arranged sufficient funds to pay the balance
consideration. It is very doubtful, and it is easy and reasonable to infer
this, that Rakesh Kumar was incapable of meeting both liabilities.
On the facts placed before us, we are satisfied that the Trial Judge
was right in coming to the conclusion that Rakesh Kumar was not in a
position to pay the balance consideration to Kalawati and the other
vendors, and by necessary implication, it must be held that he was neither
ready nor willing to perform his part of the agreement.
There is nothing to indicate the nature of the “no objection
certificate” that the vendors were required to obtain and who were the
authorities from whom the “no objection certificate” was required, nor is
there any indication of the purpose for which the “no objection certificate”
was required. Similarly, there is no indication about the nature of the
income tax clearance certificate required and for what purpose. This
clause appears to have been inserted in the agreement to sell without any
application of mind and it is quite possible, as alleged by the vendors that
the agreement to sell was ante-dated after the introduction of Section 260-
UC in the Income Tax Act, 1961. However, we need not go into this
possibility in view of the vague nature of the clause.
On an overall consideration of the facts and in the circumstances of
the case, in our opinion, the High Court was in error in setting aside the
judgment and decree of the Trial Judge. Kalawati (D) Through LRS. V.
Rakesh Kumar 2018(3) SCALE 32
Sec.16 –Transfer of Property Act, 1882- Section 54- Suit for specific performance –
Maintainability –Consideration of
So far as the plea relating to validity and enforceability of the
agreement in question is concerned, it was rightly held by the High Court
to which this court concur that the agreement in question is not hit by
Section 48 of the Maharashtra Co-operative Society Act inasmuch as the
agreement to sell in itself does not create any interest in the land nor does
it amount to sale under Section 54 of the T.P. Act. It only enables the
intending buyer to claim specific performance of such agreement on
proving its terms. In other words, there lies a distinction between an
agreement to sell, and sale. The latter creates an interest in the land once
accomplished as defined under Section 54 of the T.P. Act. It was also
rightly held on facts to which this court concur that since the dues of the
Land Development Bank were repaid, the question of applicability of
Section 48 did not arise. This court, therefore, find no ground to disagree
with this factual finding.
So far as the plea relating to readiness and willingness is
concerned, it was again rightly held by the High Court to which this court
concur that this being a finding of fact, it could not be disturbed in second
appeal and was binding on the High Court. It was more so when the first
Appellate Court had recorded its finding by appreciating the entire
evidence on record. This court, therefore, find no ground to disagree with
this finding of the High Court.
So far as the plea relating to limitation is concerned, it was rightly
held by the High Court to which this court again concur that, firstly, it was
neither raised before the Trial Court and nor before the first Appellate
Court; and secondly, it being a mixed question of law and fact, the same
could not be examined, for the first time, in second appeal by the High
Court. This court agrees with the finding of the High Court calling for no
interference. Balwant Vithal Kadam V. Sunil Baburaoi Kadam. 2018
(1) SCALE 35: AIR 2018 SC 49
Sec. 20 – Specific performance – Agreement to sell – Can only be granted when it is
proved that person executing agreement has right to transfer property.
The Court can order specific performance of an agreement only when it is
proved that a person allegedly executing an agreement to sell has right of transferring
the property. When defendants have denied their entitlement and right, title and
interest in the suit property, the said question was necessary to be answered before
decreeing the suit. The trial court after noticing the said pleading on behalf of the
defendants did not enter into this question or returned any finding that defendants
are owner of the suit property. Further, essential findings pertaining to right of the
defendant to transfer the property being not there, the passing of a decree of specific
performance was clearly erroneous. The Appellate Court has rightly set aside the
decree of specific performance of contract after recording the finding that defendant
No.1 is not the owner of the property. It is not proved that any power of attorney was
executed so as to enable defendant No.2 to enter into agreement to sell and further
the execution of agreement has also not been proved. Although, copy of alleged
power of attorney dated 04.11.1986 which is admittedly an unregistered document
has been filed by appellant before this Court as Annexure-P12, but both the Courts
having not considered the same, it is not necessary for this Court to consider the same
in this Civil Appeal.Dharmabiri Rana v. Promod Kumar Sharma,AIR 2017 SC 5431
Sec. 21 – Scope of – Power to grant decree for specific performance of
contract – Discretionary.
From the facts and material on record, it is undisputed that agreement to sell
was executed by defendant Nos.1 t 5 in favour of the plaintiff and entire sale
consideration of Rs.90,000/ was received and possession was delivered in the year
1989 itself. Plaintiff constructed three shops on the suit land. Plaintiff's case that to
defeat the rights of the plaintiff a gift deed dated 08.07.1991 was executed by
defendant Nos.1 to 5 in favour of defendant No.6 has been accepted by courts below
which have declared the gift deed as null and void. The decree for specific
performance was granted by the trial court, it was confirmed by the First Appellate
Court. The suit land was acquired and compensation was determined in favour of
defendant No.6 whose name was recorded in the Revenue records. No objection can
be taken to the view of the High Court
that consequent of the acquisition of suit land under the land acquisition proceedings
decree of specific performance granted in favour of plaintiff could not have been
maintained.
This Court in Kanshi Ram V. Om Prakash Jawal and others, 1996 (4) SCC 593
has again in context of suit for specific performance of the contract held that granting
decree for specific performance of contract is
one of the discretion to be exercised on sound principles. When the court gets into
equity jurisdiction, it would be guided by justice, equity, good conscience and fairness
to both the parties. Urmila Devi V. Deity, Mandir Shree Chamunda Devi, through
Temple Commissioner 2018 (1) Supreme 501
Sec. 34 – Suit for recovery of possession – Ground of adverse possession- Finding of
High Court that defendant is tenant, in absence of pleadings and evidence, erroneous
– Defendant possessing suit shop as encroacher – Plaintiff entitled for possession of
suit premises.
In this case First, the respondent did not adduce any evidence to prove that he
was in possession of the suit shop as tenant of the appellant's predecessorin-title. In
order to prove the tenancy between the respondent and the appellant's predecessor-
in-title (Vithal Dhopeshwarkar), it was necessary for the respondent to have filed rent
receipts/lease deed etc. and also to have examined his landlord who, according to
him, had inducted him as tenant in the suit shop. It was not done.
Second, Ex.P-15, which is sale deed of the suit shop nowhere recites that the
respondent was in possession of the suit shop as tenant. All that it recites is that the
respondent has been in possession of the suit shop. Such recitals, in our opinion, no
way confer the status of a tenant on the respondent in the absence of any
independent evidence adduced by him to prove the creation of tenancy. No benefit of
Ex.P-15 could thus be taken by the respondent to claim the status of a tenant.
In the light of aforementioned reasons, we are of the considered opinion, that
the High Court was not right in holding that the respondent was in occupation of the
suit shop as tenant and that the remedy of the appellant was to file a civil suit to claim
eviction under the Rent Laws. This finding, in our view, is contrary to the pleadings and
evidence. It is also otherwise not legally sustainable for want of any evidence adduced
by the respondent in support thereof.
In view of foregoing discussion, we are of the considered view that the Trial
Court and First Appellate Court were justified in holding the appellant to be the owner
of the suit shop, having purchased the same vide registered sale deed dated
20.09.1997 from its previous owner. It was also rightly held that the respondent was in
possession of the suit shop as an encroacher and failed to prove his adverse
possession over the suit shop. These findings being concurrent findings of fact were
binding on the High Court and, therefore, the second appeal should have been
dismissed in limine as involving no substantial question of law. Sri Shivaji Balaram
Haibatti V. Sri Avinash Maruthi Pawar, AIR 2017 SC 5494
Ss. 34, 39 – Suit for declaration and mandatory injunction – Maintainability
In this case first place, the appellant had no title to the suit land. All that he
had claimed to possess in relation to the suit land was an agreement dated 24.04.1980
to purchase the suit land from its owner (Shri Ved Prakash Kakaria). The appellant, as
mentioned above, failed to prove the agreement. In this view of the matter, the
appellant had no prima facie case in his favour to file a suit nor he had even any locus
to file the suit in relation to the suit land once the agreement was held not proved.
Second, the proper remedy of the appellant in this case was to file a civil suit
against respondent Nos.1 to 3 to claim specific performance of the agreement in
question in relation to the suit land and such suit should have been filed immediately
after execution of agreement in the year 1980 or/and within three years from the date
of execution. It was, however, not done. The suit was, however, filed by the appellant
almost after 12 years from the date of agreement and that too it was for declaration
and mandatory injunction but not for specific performance of agreement. It was, in
our opinion, a misconceived suit and was, therefore, rightly dismissed.
Third, the suit was otherwise hopelessly barred by limitation because, as
mentioned above, the date of agreement is 24.04.1980 whereas the suit was filed on
10.10.1992. There is nothing to show that the agreement was to be kept alive for such
a long time. It is apart from the fact that the alleged agreement itself was not held
proved and, therefore, no suit for claiming any relief in relation to the suit land could
be filed by the appellant. Even the Will was rightly held not proved by the Courts
below and we are inclined to uphold the finding on this issue too. Indeed when the
deceased has two sons and one daughter (respondent Nos.1-3), why should he
execute a Will in appellant’s favour, who was not related to him. Suresh Kumar v. Anil
Kakaria, AIR 2017 SC 5239
Stamp Act
Ss. 2(16), 2(14), 2(12), Sch. I, Art. 35 – Stamp duty – Levy of –
Chargeable to pay stamp duty as per rate prescribed in Art. 35 of Sch
1.
In present case, Corporation in these cases awarded the contract to
the appellants to recover the tolls (fees) from squatters, vendors, kiosks
etc. and for parking the vehicles in specified places. The contract was,
therefore, for recovery of tolls and created rights and liabilities in favour
of contracting parties qua each other. It cannot be disputed that the
expression “tolls of any description” in clause (c) would include all kinds
of levy, charges, fees etc. which the Corporation is entitled to charge
under its Bye-laws (41). It squarely attracts Section 2(16)(c) of the Stamp
Act and partakes the character of a “Lease”. contract in question also
satisfied the definition of the expression “Instrument” as defined in
Section 2(14) of the Stamp Act because it created a right and liability and
lastly, it also satisfied the definition of expression “executed” and
“execution" as defined in Section 2 (12) of the Stamp Act because it
contained the signature of contracting parties. Thus, contract in question is
a “Lease” as defined in Section 2(16)(c) of the Stamp Act and is
accordingly chargeable to payment of stamp duty as per the rates
prescribed in Article 35 of Schedule I of the Stamp Act as “Lease”.
Nasiruddin v. State of Uttar Pradesh, AIR 2018 SC 127.
Succession Act
Sec. 63 r/w Sec. 68, Evidence Act – Proving of Will – Will registered – Executed by
father in favour of minor daughter and minor son – Not unnatural – Plaintiff proving
the Will in accordance with Sec. 68.
First, the Will dated 12.03.1980 is a registered Will. Second, it was
executed by none other than the father-Ramaiah in favour of his minor
daughter-Sharmila and minor Son-Umesh born from first wife. Third,
when Ramaiah-the father bequeathed his property to his minor children
then we find nothing unnatural in it. In our opinion, it is a natural
bequeath out of love and affection. Fourth, there is no question of minor
daughter and son playing an active role in execution of the Will dated
12.03.1980 in their favour. It is for the simple reason that both were too
young to indulge in any kind of illegal acts to grab the suit property. In
other words, it was too much to expect from the minor children to play
any active role in grabbing their father's property and create forged Will.
Fifth, it has come in the evidence that the original Will dated 12.03.1980
was not in possession of the plaintiff but it was in possession of defendant
No.1. For this reason, the plaintiff filed its certified copy after obtaining
from Registrar’s office. Sixth, this explanation was accepted by the High
Court and, in our opinion, rightly. Seventh, since the original Will was not
in plaintiff's possession, its existence and legality could be proved by the
plaintiff by leading the secondary evidence. Eighth, the plaintiff proved
the Will dated 12.03.1980 in accordance with the requirement of Section
68 of the Evidence Act,1872 by adducing her own evidence and by
examining one attesting witness of the Will. In our view, such evidence
was sufficient to prove the Will. Ninth, it is not in dispute that the later
Will dated 20.05.1995 disclosed by the defendants did not find mention
therein the fact of execution of first Will dated 12.03.1980 by the testator.
In our view, the Will dated 20.05.1995 should have found reference of the
earlier Will dated 12.03.1980 because Will dated 12.03.1980 was a
registered Will and in order to prevail the last Will over the earlier one,
the reference of revocation of the earlier Will dated 12.03.1980 was
necessary in the later Will. It was not so. Tenth, since the plaintiff was not
a party to the compromise decree dated 25.01.1997 passed in OS No.7266
of 1996, it was not binding on her. Lastly, once the Will dated 12.03.1980
is held proved, in accordance with law, the plaintiff becomes entitled to
claim a declaration in her favour that she is the owner of the properties
bequeathed to her by the testator as specified in the Will.
In the light of the foregoing discussion, we hold that the High
Court was right in holding that the plaintiff was able to prove the Will
dated 12.03.1980 and that the Will dated 20.05.1995 and the decree dated
25.01.1997 passed in O.S. No.7266 of 1996 are not binding on the
plaintiff. H.V.Nirmala V. R.Sharmila, 2018 (1) Supreme 339
Sec. 263 – Appellant challenging probate of the will alleging fraud – Not adducing any
evidence – Not tenable.
Allegation that the grant of probate was obtained by the appellant in
fraudulent manner, as mentioned supra, the appellant has not come forward to
adduce any evidence to prove the so called allegation of fraud. The signature of Mr.
Richard P. Mathias on the Will has not been challenged. The Trial Court as well as the
High Court has recorded the finding that the genuineness of the Will was not
challenged by the appellant. Moreover, the particulars of fraud are neither pleaded
nor proved by the party alleging fraud before the District Court.
The party alleging fraud must set forth full particulars of fraud and the case
can be decided only on the particulars laid out. There can be no departure from them.
General allegations are insufficient. Merely because the appellant has made bald
allegations in the revocation application that the Will executed by the deceased is void
because the same has been brought out by Mrs. Mathias and the same is constituted
by fraud and undue influence, it will not absolve her from providing specifically the
particulars of fraud and undue influence. Mere bald pleading will not help her in the
absence of proof. In the absence of any evidence on record showing prejudice because
of non issuance of citation at Chikmagalur, and in the absence of any evidence - much
less cogent evidence - to prove fraud and undue influence, we conclude that the Trial
Court as well as the High Court is justified in concluding that there is no just cause for
revocation of grant of probate under Section 263 of the Indian Succession Act. Lynette
Fernandes V. Mrs. Gertie Mathias (since deceased) by LRs. AIR 2017 SC 5453:2017(8)
Supreme 654
Sec. 263—and Explns. (a) and (b) thereto—Petition for revocation of grant of
probate—Limitation period with respect to—Determination of—Commencement of
that limitation—Held, would commence from date of grant of probate
Appellant assailing grant of probate was a minor at the time of that grant.
Hence, 3 yrs’ limitation for seeking revocation of grant of probate by her commenced
after she attained majority on 9.9.1995. Resultantly, proceeding initiated by appellant
for revocation of grant of probate on 25.1.1996 i.e. 31 yrs after she attained majority,
was highly belated. No acceptable explanation offered with respect to that delay.
Hence held, petition for revocation of said grant was rightly dismissed on ground of
limitation. Lynette Fernandes V. Gertie Mathias since deceased by legal, (2018) 1 SCC
271: AIR 2017 SC 5453:2017(8) Supreme 654.
Sec. 263 – Appellant seeking revocation of probate after 36 years as against three
years under Art. 137, Limitation Act, 1963 – Held petition time barred.
Revocation of grant of probate can be sought within three years. Grant of
probate being a judgment in rem the limitation starts from the date of porobate. If the
appellant was a minor at the time of grant of probate, as instantly, limitation of three
years will start from the date of his/ her attaining majority. Lynette Fernandes V. Mrs.
Gertie Mathias (since deceased) by LRs. AIR 2017 SC 5453:2017(8) Supreme 654
Transfer of Property Act:
Sec. 58 (c) – Mortgage by conditional sale or sale with option of repurchase –
Determination
The plaintiff’s suit for redemption of mortgage, decreed by the trial court and
affirmed in first appeal, having been reversed by the High Court, the plaintiff is in
appeal. The parties shall be referred to by their respective position in the suit, for
convenience.
The question whether a document is a mortgage by conditional sale, or a sale
with an option to repurchase, is a vexed question to be determined in the facts of each
case.
A bare reading of the original document reveals that it is styled as a sale deed.
The vendor specifically recites that he had purchased the property for a sum of
Rs.1500/- by sale deed dated 22.6.1948, from its original owners. That he was the
exclusive owner of the property, which was not encumbered in any manner and that
he had absolute title and authority singularly, to deal with the same to the exclusion of
his brothers, from whom he had separated long ago. He was selling the shop for a sum
of Rs.4000/- because he had purchased a motor vehicle, which he wanted to run on
hire. On receipt of the consideration money he was voluntarily transferring all right,
title and interest in the property to the vendee and his legal heirs for all times to
come. If the property was found to be encumbered in any manner, the vendee could
approach the court, for return of the sale amount, including against the immovable
property of the vendor. If the amount was returned within a period of 5 years, either
in installments or in lump-sum, the purchaser would execute the sale deed in his
favour.
The recitals reveal no reference to any loan taken or mortgage created with
regard to any immovable property as security for such loan, much less to discharge
any debt. It does not evince the creation of a debtor and creditor relationship. On the
contrary, the recitals are specific that the vendor was in need of money to run the
vehicle purchased by him on hire, and was selling the shop to raise money for the
purpose. The suit for redemption was also filed beyond the period of 5 years.
Significantly, the first appellate court observed that the recitals indicated that it was a
sale deed, but concluded that it was a mortgage by conditional sale, only because the
right to redemption was incorporated in the same document, which was but only one
of the factors amongst others, to determine the true nature of the document. Suraj
Narain Kapoor v. Pradeep Kumar,AIR 2017 SC 5046
Words and Phrases:
“Honorable acquittal”—Meaning of—
What is honourable acquittal, was considered by this Court in Inspector
General of Police v. S. Samuthiram, (2013) 1 SCC 598, in which this Court held as
under: (SCC p. 609, para 24)
“24. The meaning of the expression “honourable acquittal” came up for
consideration before this Court in RBI v. Bhopal Singh Panchal, (1994) 1 SCC 541. In
that case, this Court has considered the impact of Regulation 46(4) dealing with
honourable acquittal by a criminal court on the disciplinary proceedings. In the
context, this Court held that the mere acquittal does not entitle an employee to
reinstatement in service, the acquittal, it was held, has to be honourable. The
expressions “honourable acquittal”, “acquitted of blame”, “fully exonerated” are
unknown to the Code of Criminal Procedure or the Penal Code, which are coined by
judicial pronouncements. It is difficult to define precisely what is meant by the
expression “honourably acquitted”. When the accused is acquitted after full
consideration of prosecution evidence and that the prosecution had miserably failed
to prove the charges leveled against the accused, it can possibly be said that the
accused was honourably acquitted. Union Territory, Chandigarh Administration V.
Pradeep Kumar, (2018) 1 SCC 797
“Income” – Means actual income less than tax paid.
“Income” means actual income less than the tax paid. Future prospects are to
be added to the sum on the percentage basis.
While determining the income, an addition of 50% of actual salary to the
income of the deceased towards future prospects, where the deceased had a
permanent job and was below the age of 40 years, should be made. The addition
should be 30%, if the age of the deceased was between 40 to 50 years. In case the
deceased was between the age of 50 to 60 years, the addition should be 15%. Actual
salary should be read as actual salary less tax.
Reasonable figures on conventional heads, namely, loss of estate, loss of
consortium and funeral expenses should be Rs. 15,000/-, Rs. 40,000/- and Rs. 15,000/-
respectively. The aforesaid amounts should be enhanced at the rate of 10% in every
three years. National Insurance Company Limited v. Pranay Sethi, AIR 2017 SC 5157.
“Under-insurance”—What is
Under-insurance means insured taking out insurance policy in which he has
valued the insured items for a sum which is less than the actual value thereof—
Normally it is done to pay lesser premium—If entire insured property is lost
policyholder will only get the maximum sum for which the property has been insured
which would be less than the actual value. When group of items is insured under one
heading and some of the items and not all items are lost then the principle of under-
insurance would be applicable. I.C. Sharma V. Oriental Insurance Co. Ltd., 2018 ACJ
542 (SC)
PART – 2 (HIGH COURT)
Civil Procedure Code:
S. 9 – U.P. Zamindari Abolition and Land Reforms Act, S 331 (1-A)
[as inserted by Amendment Act (4 of 1969)] – Suit for cancellation of
sale deed and permanent injunction – Suit for cancellation of sale
deed can only be instituted in Civil Court and not in Revenue Court,
for later can only deal with declaration alone.
Contention as to lack of inherent jurisdiction cannot be accepted
because a suit for cancellation of a sale-deed can be instituted only in a
Civil Court. No doubt, where the plaintiff does not have his name
recorded in the revenue record and his possession on the date of the
institution of the suit is also not reflected by way of an entry in the
revenue record, and the sale deed in question is either executed by some
third party affecting the interest of the plaintiff or the plaintiff claims the
sale as void for the reasons disclosed in the plaint, the appropriate course
for such a plaintiff would be to seek a declaration in respect of his right
because that would be the main relief and cancellation would be ancillary
and, therefore, in such a case the suit would be cognizable by a Revenue
Court and such a suit before a civil court would be barred by section 331
of the UPZA & LR Act. Because the Revenue Court, in such cases, can
grant declaratory decree or such other relief, which it is empowered under
the provisions of the U.P.Z.A.& L.R. Act, by ignoring the void document
on the principle that a void document is non est and its cancellation is not
essential. But where a person is recorded in the revenue record he cannot
be denied right to seek cancellation of a document merely on the ground
that he could get a declaration of his right from the Revenue Court.
Because every person has a right to remove the cloud on his title by
seeking cancellation of an instrument which casts a shadow on his
title. Shri Niwas v. State of U.P., AIR 2018 (NOC) 210 (All.)
Sec. 21 – Suit for partition –Valuation of subject matter - For determining pecuniary
jurisdiction – Is value of plaintiff’s share as mentioned in plaint.
In a suit for partition where the plaintiff asserts that he is in joint possession of
the property along with other sharers, value of the subject matter for the purpose of
determining pecuniary jurisdiction is the value of the plaintiff's share mentioned in the
plaint. Primarily the plaint averments should decide the valuation for the purpose of
jurisdiction. Victoria v. Yesuraj Kumar, AIR 2018 Ker 27 (FB)
Sec. 151 - Discretionary powers of Court – Exercise of – Scope
Sec. 151 of the Code recognizes the discretionary power inherent in every
court as a necessary corollary for rendering justice in accordance with law, to do what
is `right' and undo what is `wrong'. Thus this power can be invoked to do all things
necessary to secure the ends of justice and prevent abuse of its process. The power
under Section 151 C.P.C. cannot be exercised by a court to do a thing which is
prohibited by law or the Code or where the Code contains provisions dealing with a
particular topic or aspect, and such provisions either expressly or by necessary
implication exhaust the scope of the power of the court or the jurisdiction that may
exercised in relation to that matter. Thus, where the remedy of procedure is provided
under the Code, the courts cannot invoke the special provisions of Section 151 C.P.C.
The inherent power under Section 151 C.P.C. Should be exercised by the court
cautiously, in the absence of any legislative guidance to deal with the procedural
situation. The exercise of this power depends upon discretion and wisdom of the court
on the facts and circumstances of each case to meet the ends of justice and to prevent
abuse of process of Court. The court should also see that the bonafides of the
applicant cannot be doubted. Harish Chandra v. Rahul Kumar, AIR 2018 All. 1
O. 6, R. 17- Amendment in plaint- At appellate stage- Appellate court while allowing
amendment application had not taken into consideration – Object of inserting proviso
to O.6, R.17-Amendment application rejected
This is a petition under Art. 227 of the Constitution of India Challenging an
order dated 30.10.2017 passed by the Additional District Judge, Gonda in Civil Appeal
No. 14 of 2017 allowing the application for amendment of the plaint by the appellant-
plaintiff on the ground that the amendment sought is only in the number of Gata i.e.,
instead of old number a new number is sought to the mentioned which did not change
the nature of the case.
The appellate court while allowing the amendment application has not taken into
consideration the object of inserting the proviso to Order VI , Rule 17 of the Code of
Civil Procedure. The facts which were sought to be instead at the appellate stage in
the plaint were very much within the knowledge of the plaintiff- appellant and there is
nothing to show that there was any due diligence on their part in this due regard.
Therefore, considering the facts and circumstances of the case, the amendment
application which has been allowed by the appellate court cannot be sustained. The
order of the appellate court is accordingly quashed. The appellate court shall now
proceed to decide the appeal as per law with expedition. Vyasdhar V. A.D.J., Gonda
and others, 2018 (1) AWC 730
O. 7, R. 11- Application for rejection of plaint - Non-disposal of-Court below directed
petitioner to file his W.S. and that it would consider the said application thereafter -
Courts below committed a manifest and grave error in failing to dispose of the
application made by the petitioner and deferring a decision thereon awaiting the filing
of a W.S.-A litigation which is vexatious or is otherwise contended to be barred by law
cannot be permitted to proceed to a full length trial, this would be clearly be contrary
to the legislative intendment underlying O.7, R. 11, CPC-Trial Court directed to
consider application under O. 7, Rule 11, CPC on merits before proceeding any further.
From the discussion above as well as the principles enunciated by the
Supreme Court in the decisions noticed, it is clear and apparent that the courts below
committed a manifest and grave error in failing to dispose of the application made by
the petitioner and deferring a decision thereon awaiting the filing of a written
statement. A litigation which is vexatious or is otherwise contended to be barred by
law cannot be permitted to proceed to a full length trial. This would clearly be contrary
to the legislative intendment underlying Order 7 Rule 11. Adoption of a course of
action as has been done by the courts below in the facts of the present case would
clearly do injustice to a valuable right conferred upon a defendant by the
aforementioned provision. The orders impugned herein cannot, therefore, be
sustained.
Accordingly and for all the reasons noted above, this writ petition is allowed.
The orders dated 05.07.2010, passed by the Ist Additional Civil Judge (Junior Division)
and 03.05. 2014, passed by the Additional District Judge, Court No. 9, Firozabad are
hereby set aside. The Trial Court shall now take up for consideration the application
preferred by the petitioner under Order 7 Rule 11 and shall proceed to rule upon the
same on merits before proceeding any further. The trial Court shall endeavour to
decide the said application in the light of the observations made herein above
expeditiously and preferably within a period of three months from the date of
presentation of a certified copy of this Order. Mahesh Chandra V. Sri Bishan Dayal,
2018 (1) ARC 343
O. 13, R. 1- Sec. 151 – Production of additional document – Application for – Inherent
powers of Court
I find that the certified copy of Tax Assessment Register of Nagar Nigam,
Aligarh relating to the disputed shop was a relevant public document admissible in
evidence, for the purpose of correct determination of issues to render justice. Facts of
the case shows that the application for taking in evidence the document in question
was bonafidely filed by the petitioner. Therefore, the revisional court, in the interest of
justice, has not committed any error of law to permit the plaintiff/ respondent to
produce the said evidence, subject to payment of cost of Rs. 2,000/-. Harish Chandra v.
Rahul Kumar, AIR 2018 All. 1
O. 17 Rr. 2, 3 – Non appearance of party on fixed date – Discretionary power of Court
– Discussed.
Careful reading of Order 17 rule 2 indicates that the said provision speaks of
the discretion of the Court to proceed to dispose of the suit, in one of the modes,
directed under Order 9 or to make such order, as it thinks fit, in case the parties or any
of them fail to appear on an adjourned date of hearing. Explanation to Rule 2,
however, gives a discretion to the Court to proceed to decide the suit in absence of a
party whose evidence or substantial portion thereof has already been recorded. Under
rule 2, the expression "in one of the modes directed in that behalf by Order 9" or
"make such order as it thinks fit" makes it clear that the Court can choose any one of
the modes as provided in that behalf under Order 9. Under Order 17 Rule 3, where any
of the parties, whose evidence was to be recorded or whose witness was to appear on
the date fixed, fails to comply with the Court's direction, notwithstanding such default,
the Court may proceed to decide the suit forthwith, in a case where the parties to the
suit are present. However, in a case, where the parties or any of them, are/is absent,
having committed the said default, the Court has no option but to proceed under rule
2. Thus joint reading of the rule 2 and 3 of Order 17 leaves no room for doubt that a
discretion has been conferred upon the Court to choose as to the manner to proceed
and pass appropriate orders in a given set of the facts and circumstances of the case,
before it. Brij Gopal Mishra v. Dr. Manorama Srivastava, AIR 2018 (NOC) 89 (All).
O. 18, Rr. 17 and 17-A (since omitted), S. 151 – Recalling of witness – Application for –
Exercise of discretionary powers by Court – Scope.
Power under Order XVIII Rule 17 is a discretionary power which may be
exercised by the court either on its own motion or on an application filed by any of the
parties to the suit requesting the court to exercise the said power. However, it should
be used sparingly in appropriate cases to enable the court to clarify any doubts it may
have in regard to the evidence led by the parties. This power should not be used to fill
up omissions on the evidence of a witness who has already been examined. Harish
Chandra v. Rahul Kumar, AIR 2018 All. 1
Constitution of India:
Art. 25 – Freedom of religion – Gives complete freedom to all citizens
to profess, practice and propagate religion of their choice – But
citizens cannot claim right to erect structures in name of religion in
unauthorized manner over public land or over land of others.
Right of belief and practice of religion guaranteed by Art. 25 is
subject to public order, morality, health and other provisions of Part III.
Thus, while a citizen has complete freedom to profess, practice and
propagate religion of his choice, he cannot claim right to erect structures
in the name of religion in an unauthorised manner over public land or over
land of others. The law forbids him from so doing. This is founded on the
principle that no group of citizens shall arrogate to itself rights and
privileges, which it denies to others. This is also based on the principle
that no person should suffer any form of disability or discrimination
because of an act of another section of the society undertaken under the
cloak of religion, which the law denounces.Abhishek Shukla v. High
Court of Judicature, Allahabad, AIR 2018 All. 32
Criminal Procedure Code:
Sec. 2 (wa) –“Victim” , definition of- Held, means a person who has suffered any loss or
injury and includes his or her guardian or legal heir
Before we proceed further, it would be relevant to notice certain
provisions, which are relevant for our purpose, to address the question.
The word 'complaint' and the word 'victim' have been defined by clauses
(d) and (wa) of Section 2 of CrPC, which read thus:
"(d) "complaint" means any allegation made orally or in writing to
a Magistrate, with a view to his taking action under this Code, that some
person, whether known or unknown, has committed an offence, but does
not include a police report.
Explanation.- A report made by a police officer in a case which
discloses, after investigation, the commission of a non-cognizable offence
shall be deemed to be a complaint; and the police officer by whom such
report is made shall be deemed to be the complainant;
(wa) "victim" means a person who has suffered any loss or injury
caused by reason of the act or omission for which the accused person has
been charged and the expression "victim" includes his or her guardian or
legal heir;"Mast Ram Tiwari V. State of U.P., 2018 (36) LCD 516
Sec. 69—Issuance of summons—Purpose of
Purpose of Sec. 69 of Cr.P.C. for issuance of summons through additional
mode i.e. registered post is none else but to draw presumption against addressee once
an endorsement of refusal is received back. This presumption, however, is not
envisaged to be drawn when summons are issued through police officer u/s. 62 and
notice comes back with remark of refusal. Sanjay Kumar Singh vs. State, 2018 ALJ 286
Sec. 202- Inquiry u/s 202 Cr.PC is of a limited purpose
Hon’ble court held that the inquiry under Section 202, Cr.PC is of a limited
nature to find out whether there is a prima faice case to issue process against the
person accused of the offence in the complaint and to prevent the issue of process in
the complaint which is either false or vexatious or intended only to harass such
person. At that stage, the evidence is not to be meticulously appreciated, inasmuch as,
the limited purpose is to find out “whether or not there is sufficient ground for
proceeding against the accused” the standard to be adopted by the Magistrate in
scrutinizing the evidence is also not the same as the one which is to be kept in view at
the stage of framing charges. At the stage of inquiry under Section 202, Cr.PC it is the
duty of the Magistrate which making an inquiry to elicit all facts not merely with a
view to protect the interest of an absent accused person, but also with a view to bring
to book a person or persons against whom grave allegations are made. Sanjeev Kumar
Gupta V. State of U.P. , 2018 (1) ALJ 276
Sec. 372 Proviso (as amended w.e.f. 31.12.2009) and Section 37 (3), (4) and (5) –
Appeal against the order of acquittal, filed by victim- Limitation for
Court is satisfied that the limitation for preferring an appeal against the order
of acquittal by the victim would be 90 days in all cases, other than the cases instituted
upon complaint, and 60 days for any case instituted upon complaint against the order
of acquittal after the High Court grants special leave to appeal. Mast Ram Tiwari v.
State of U.P. and others, 2018 (36) LCD 516 (FB)
Hindu Marriage Act:
Sec. 13- Suit- For Divorce- Lodging of F.I.R. by defendant –Appellant against plaintiff-
respondent-By itself could not be said to be act of cruelty-Impugned judgment
granting decree of divorce set aside –Matrimonial suit dismissed- Appeal allowed
Points for determination in this appeal which have arisen are:
(I) Whether finding of Trial Court with regard to character and conduct of
defendant-appellant is based on no evidence.
(II) Whether plaintiff-respondent has proved a case of cruelty so as to justify
decree of divorce by adducing credible evidence. (III) Whether judgment and decree
passed by Trial Court is based on evidence and justified in law.
Before considering aforesaid questions on merits, court may also notice some
other events in the meantime.
Lodging of report by appellant by itself cannot be said to be an act of "cruelty"
since it cannot be said that report lodged by defendant-appellant is false or frivolous.
Police after investigation has submitted charge sheet and trial is pending. A divorce on
the ground of "cruelty" cannot be granted for the weakness of evidence in defence but
plaintiff can succeed only when he is able to prove his case of "cruelty" by adducing
evidence in support of claim. The finding recorded by Trial Court to grant divorce
decree on the ground that plaintiff-appellant has illicit relations with Vishal Srivastava,
which amounts to mental cruelty, is based on no evidence at all and we have no
hesitation in answering all the aforesaid points for determination in favour of
defendant-appellant and against plaintiff-respondent.
In the result, appeal succeeds and is allowed. Impugned judgment dated
03.02.2010 is hereby set aside and Matrimonial Suit No. 274 of 2006 filed by plaintiff-
respondent seeking divorce, is hereby dismissed. Smt. Rajani v. Pratipal Singh 2017 (6)
AWC 6402.
Sec. 13(1)(i) – Evidence Act S. 112 – Divorce proceedings – Allegation
of infidelity against wife – Child born after seven months of marriage –
DNA Test to determine paternity – Parties yet to led evidence – Stage for
conducting DNA test not reached – DNA test refused considering welfare
of child. Renu Singh v. Promod Kumar Singh, AIR 2018 (NOC) 48
(All.).
Sec. 13(1)(i) – Divorce – On ground of adultery – Allegations of
involvement of wife in adulterous relationship – Wife not married with
p[etitioner at relevant time – Refusal to grant divorce, proper. Narayan
Prasad Sarswat v. Smt. Shaifali alias Muniya, AIR 2018 (NOC) 90
(All.).
Sec. 13(1)(i-a) – Dissolution of marriage – On ground of cruelty -
Wife levelling wild allegations and prosecuting proceedings for
conviction and apprehension of incarceration of husband and his family
for sending them in jail – Allegation constituting grave assault on
character, honour and reputation of husband and his family –Arrest and
getting bailed out of criminal offences also resulting in loss of reputation
and prestige of husband and his family – Constitutes mental cruelty –
Husband entitled for a decree of divorce. Sarswat v. Smt. Shaifali alias
Muniya, AIR 2018 (NOC) 90 (All.).
Sec. 13(1)(iii) – Divorce – Ground of mental disorder – Degree of mental disorder must
be proved to be such that petitioning spouse cannot reasonably be expected to live
with other – Decree of divorce, cannot be granted.
Section 13(1)(iii) of the Act, provides for a ground of divorce when the
respondent suffers from incurably unsound mind or has been suffering continuously or
intermittently from mental disorder of such a kind and to such an extent that the
petitioner cannot reasonably be expected to live with the respondent. Therefore, it is
clear that mere unsound mind is not a ground for divorce. It should be incurably
unsound mind. Similarly, if a person is suffering from a mental disorder, that by itself is
not a ground for divorce. The mental disorder should be of such a kind and to such an
extent that the petitioner cannot reasonably be expected to live with the respondent.
Explanation to the said proviso explains the meaning of mental disorder. The
expression 'mental disorder' means mental illness, arrested or incomplete
development of mind, psychopathic disorder or any other disorder of disability of
mind and includes schizophrenia. Merely branding a spouse as a schizophrenic is not
sufficient. The degree of mental disorder of the spouse must be proved to be such that
other spouse cannot reasonably be expected to live with him or her. Raj Kumar v.
State of U.P., AIR 2018 All 253.
Indian Penal Code:
Ss. 323, 504, 506 and 269- Essential ingredients must be present while accused is
summoned by the court
The Hon’ble Court held that, at the time passing summoning order there is no
iota of evidence or any such report on record which may prima facie indicate that any
piece of cotton, metal or surgical item or anything else was left inside the abdomen of
patient by the revisionist and the impugned order does not state that the learned
Magistrate has considered any such report. Is also pertinent to mention that neither
the complainant nor her witnesses in their statements under section 200 and 202
Cr.PC could dare to state as to what piece was left in abdomen of patient. The
impugned order does not state that there is any medical report from hospital. In
absence of any medical evidence on record, mere bald allegations made in complaint
or in statements of complainant & her witnesses may not be sufficient to form prima
facie evidence of any offences. Dr. (Smt.) Chhaya Rastogi v. State of U.P. and another,
2018 (102) ACC 94
Interpretation of Statutes:
Amendment - Retrospective effect
Restriction imposed by Section 169(3) of the U.P. Z.A. & L.R. Act upon the
bhumidhar for devolution of his bhumidhari and would be operative w.e.f. 23.8.2004
i.e. the date of commencement of Amendment Act by which the registration of the
Will has been made compulsory. The restriction so imposed by the aforesaid provision
is on the right of bhumidhar to bequeath his property except by way of a registered
instrument. The restriction is not upon the person who is claiming his right on the
basis of Will rather it is on the testator of the Will. Thus, no bhumidhari land could be
bequeathed after 23.8.2004 except by way of a registered Will, the whole idea is that
the land of the village remain with the tiller of the land. Jahan Singh v. State of U.P.,
AIR 2017 All 247
‘Proviso’, scope of –Held, a proviso must be limited to subject-matter of the enacting
clause
The court has to refer to the rules of interpretation of statutes to
find out what is the effect of the proviso to Section 372 of Cr.P.C., it is
well established that the proviso of a statute must be given an
interpretation limited to the subject-matter of the enacting provision.
Reliance is placed on the decision of this Court rendered by four Judge
Bench in Dwarka Prasad v. Dwarka Das Saraf, (1976) 1 SCC 128, the
relevant para 18 of which reads thus:
"18. ... A proviso must be limited to the subject-matter of the
enacting clause. It is a settled rule of construction that a proviso must
prima facie be read and considered in relation to the principal matter to
which it is a proviso. It is not a separate or independent enactment.
"Words are dependent on the principal enacting words to which they are
tacked as a proviso. They cannot be read as divorced from their context"
(Thompson v. Dibdin, 1912 AC 533). If the rule of construction is that
prima facie a proviso should be limited in its operation to the subject-
matter of the enacting clause, the stand we have taken is sound. To expand
the enacting clause, inflated by the proviso, sins against the fundamental
rule of construction that a proviso must be considered in relation to the
principal matter to which it stands as a proviso. A proviso ordinarily is but
a proviso, although the golden rule is to read the whole section, inclusive
of the proviso, in such manner that they mutually throw light on each
other and result in a harmonious construction."Mast Ram Tiwari v. State
of U.P. and others, 2018 (36) LCD 516
Juvenile Justice (Care and Protection of Children) Act:
Determination of age – Medico Legal examination report is a last step.
Hon’ble Court held that, the provisions of Section 94, Juvenile Justice Act, 2015
do not permit the Court to look into medico legal evidence of any kind in the face of a
date of birth certificate from the school or the matriculation or equivalent certificate
from the concerned examination Board. It is only if the aforesaid documents are not
available, that a birth certificate given by a corporation or a municipal authority or a
Panchayat can be looked into for the purpose of determination of age. It is in a
situation where the said two categories of documents in their relative priority are not
available that medico legal evidence as to the age may be considered. Smt. Priyanka
Devi V. State of U.P. and others 2018 (2) ALJ 203
Land Acquisition Act:
Ss. 4, 17(1) – Acquisition of Land – Challenge as to – Subsequent
purchasers after issuance of notification under S. 4 cannot challenge
validity of acquisition proceedings.
Anyone who deals with the land subsequent to a Section 4
notification being issued, does so, at his own peril. In other words,
purchase of lands after publication of Section 4 notification in relation to
such land is void against the State and, at the most, the purchaser may be a
person interested in compensation, since he steps into the shoes of the
erstwhile owner and may therefore, merely claim compensation. In the
present case, the petitioners purchased the farm lands/plots between 2007
and 2012, whereas the acquisition was complete in 1950. No recorded
landowner who held the land at the time of issuance of the acquisition
notifications ever raised any grievance in respect of the acquisition or
initiated a legal challenge to the same. We have, therefore, no hesitation in
holding that the petitioners being persons, who purchased lands
subsequent to the issuance of a Section 4 notification with respect to it, are
not competent to challenge the validity of the acquisition proceedings on
any ground whatsoever, for the reason that the deeds executed in their
favour are void against the State and the beneficiary of the acquisition.
There has also been an abject failure of the part of the petitioners to
establish or prove that the original landholder who possessed the land at
the time of issuance of the notifications was deprived of compensation.
The petitioners, therefore, at the most, can claim that they cannot be
dispossessed without the due process of law being followed. Ajit Singh v.
Union of India, AIR 2018 (NOC) 111 (All.).
Legal Services Authorities Act:
Sec. 20(2)—Reference to Lok Adalat—Matters relating to non-compoundable
offences—Beyond jurisdiction of Lok Adalat
Matters which cannot be dealt with by Lok Adalat are matters relating to
offence not compoundable under any law. In the instant case, final report was
submitted in an F.I.R. registered u/ss. 406, 420, 467, 471, IPC which are not
compoundable offences under law. Therefore, even if parties would agree or an
opportunity of being heard is complied with, nature of case essentially falls beyond the
jurisdiction of Lok Adalat. Sanjay Kumar Singh V. State, 2018 ALJ 286
Sec. 21(2)—Settlement before Lok Adalat—Revision against—Compromise or
settlement is not open to be questioned under Act
Appeal being specifically barred u/s. 21(2), revision is also not maintainable.
Sanjay Kumar Singh V. State, 2018 ALJ 286
Motor Vehicles Act:
Sec. 149(2)(a)(ii)—Motor insurance—Driving licence—Liability of insurance company—Evidence that driver had valid licence to drive the tanker—Whether driver was holding a valid licence and insurance company is liable—Held: yes.
In the claim petition the description of the offending vehicle has
been given as a tanker with its registration number. The appellant-
insurance company filed its written statement wherein it accepted that the
accident took place with the tanker in question. In the written statement no
pleading was drawn to the effect that the tanker was carrying gas or that it
was a hazardous vehicle for which any special licence was required by its
driver. In paragraph 20 only a bald allegation was made that the driver of
the tanker was not having a valid and effective driving license but it was
nowhere pleaded that the tanker was a hazardous vehicle.
The accident had taken place on 20.3.2011. The information
furnished by the licensing authority on Form 54 clearly reveals that the
driver Rajesh Kumar had the license to drive the tanker which was valid
from 11.12.2006 to 10.12.2009 and 20.9.2010 to 19.9.2011.
In the absence of any pleading to the effect that the offending
vehicle was a hazardous vehicle for which a special license was required
in law, the licence brought on record which was valid for driving the
tanker was sufficient to establish that it was not being driven in violation
of terms and conditions of the insurance policy. Oriental Insurance Co.
Ltd. V. Rajesh Devi, 2018 ACJ 301 (All)
S. 173 – Appeal for enhancement of compensation – Objection as to
pecuniary jurisdiction – Unless objection is raised at threshold of
proceedings – Objection cannot be raised at appellate stage.
Pecuniary jurisdiction of this Court as per the limit provided under
High Court Rules is, of course, a relevant jurisdictional criteria but unless
the objection is raised at the threshold of proceedings, such an objection at
this stage and that too without raising a ground of manifest error of law
apparent on the face of record in the impugned judgement on merit, in my
humble view, is impermissible. The Court taking such a view is fortified
by an apex court judgement reported in Willie (William) Slanley v. The
State of Madhya Pradesh (1955) 2 SCR 1140. This Court would further
take note of the aspect that no intra court appeal lies against the judgement
rendered by a Single Judge in exercise of appellate jurisdiction, thus, even
a remedial prejudice is not caused to the petitioner. U.P. State Road
Transport Corp. v. Indra Raj Verma, AIR 2018 All 6
Sec. 173 – Valuation of appeals – Appeal for enhancement of
compensation – Determinable an amount set up as claim before
Tribunal.
The aforesaid rule by reference makes Section 4 of the Court Fees Act, 1870
applicable insofar as the money claims are concerned. Right to claim compensation is
essentially a money claim, therefore, the Court would hasten to refer to the Court Fees
Act, 1870. The relevant part of Section 7 of the Court Fees Act which relates to money
claims, is reproduced as under:
"7. Computation of fees payable in certain suits.--The amount of fee payable
under this Act in the suits next hereinafter mentioned shall be computed as
follows:--
for money.-- (i) In suits for money (including suits for damages or
compensation, or arrears of maintenance, of annuities, or of other sums
payable periodically)--according to the amount claimed."
This Court in view of the provisions quoted above, is of the
considered opinion that the valuation of appeals filed before this Court
would be determinable on the amount as it is set out in the claim filed
before the Tribunal. The court fee under the Motor Vehicles Rules, 1998
is fixed, therefore, nothing turns on the question of payment of court fee
but pecuniary jurisdiction of this court has to be viewed in the light of
valuation of appeal mentioned therein. The appeal for enhancement of
compensation clearly mentions the valuation of appeal at Rs. 45,09,950/-
after deduction of the amount allowed by the Tribunal. U.P. State Road
Transport Corp. v. Indra Raj Verma, AIR 2018 All 6
Provincial Small Cause Courts Act:
Sec.23 – Suit for eviction – Tenant disputing title of landlord – Not
obligatory on Small Cause Court to return plaint – Question of title
can be considered as incidental question - But decision cannot operate
as res judicata in subsequent suit for title.
Provision of Sec. 23 of the Act is discretionary provision. It does
not make it obligatory on the Court of Small Causes to invariably return
the plaint once a question of title is raised by the tenant. A question of title
could also incidentally be gone into and that any finding recorded by a
Judge, Small Causes in this behalf could not be res judicata in a
subsequent suit based on title. In the case of a eviction suit under Rent
Control Act, question of title could be considered by Small Causes Court
as an incidental question and the final determination of title is left to be
decided by the Competent Court in appropriate proceedings. The
procedure adopted in the Trial Court of the case before the Small Cause
Court is summary in nature. Mere denial of landlord-tenant relationship
by the defendant / tenant would not oust eviction proceeding before small
cause court. If question if title is not involved in suit and even if question
of title has been raised by tenant, it can be incidentally gone into y Court
and any finding recorded in this regard by Judge, Small Casue Court, shall
not operate as res judicata in suit based on title. Abid Khan v. Smt. Maya
Devi, AIR 2018 All. 27.
Railways Act:
Sec. 123 (c)(2)—Untoward incident—Claimants filed claim alleging that deceased after
purchasing ticket was waiting for train when another train passed on the side track
and on account of air pressure of the said train he lost balance, fell down and
sustained fatal injuries—Whether the incident did not fall within the ambit of
untoward incident and Railway Claims Tribunal was justified in rejecting the claim—
Held: yes.
The appellants have claimed to be parents of the deceased Sanjay who died in
accident. The learned counsel for the appellant has submitted that the deceased was a
valid ticket holder and while he was waiting for boarding on train at the side of railway
track, due to air pressure of the running train i.e. Gwalior Mail the deceased fell down
on the track of the train and received injuries, on account of which he succumbed to
death. Such an accident is covered under the definition ‘untoward incident’ as defined
in Section 123 (c). Therefore, the respondents are liable to compensate his death to
the claimants, it has been submitted that Railway Claim Tribunal has failed to
appreciate the facts of the case correctly and has dismissed the Appellants claim on
the ground that since neither the deceased was travelling in train nor was boarding on
train when the accident took place, therefore, such accident is not covered under the
definition ‘untoward incident’ as has been defined in Sec.123 (2). Manglu Prasad V
Union of India, 2018 ACJ 393 (All)
Right to fair compensation and Transparency in Land Acquisition,
Rehabilitation and Resettlement Act :
Sec. 24(2) – Deemed lapse of acquisition proceedings – S. 24(2) of
RFCTLARR applies only to acquisition proceedings initiated under
Land Acquisition Act – Does not apply to proceedings under MRTP
Act.
Sec. 24(2) of the RFCTLARR provides different time frame and
lapsing of acquisition on default, it cannot be applied to the acquisition
initiated under Section 125 to 127 of the MRTP Act. MRTP Act has not
undergone any change from its character as complete code. Section 24(2)
of the RFCTLARR will apply only if the acquisition proceedings are
"initiated" under Land Acquisition Act, and cannot apply if they are
initiated u/Ss 125 to 127 of the MRTP Act. Subsequent amendments to
MRTP Act, framing of Rules by the State, and proviso to Section
125 have not brought in any change in position of law in this regard.
While carrying out the planned development, balance has to be achieved
between individual rights and larger good of the society. MRTP Act has
its own scheme for achieving such balance. MRTP Act has an elaborate
methodology of identification and finalization of the need for public
amenities and to initiate the process for acquisition of the land for
fulfilling need so determined. MRTP Act has its checks and balances such
as Section 127, which mandates that a private land cannot be placed under
reservation indefinitely depriving owner to put it to full use. Embargo has
been placed on the powers of State by providing a time limit
under Section 127 within which lands so identified needs to be acquired.
If acquisition proceedings would lapse in this manner, it would frustrate
the rights of State as contemplated under Section 126 as well as 127 of the
Act. Such cause of action will disturb the equilibrium of MRTP Act and
cause legal and practical impediments. Mehtab Laiq Ahmed Shaikh v.
State of Maharashtra, AIR 2018 Bom 1 (FB).
Service Law
Employment- Transfer- Order of- In transfer matter scope of judicial review is very
limited –Transfer order can be challenged only on ground of violation of statutory
rules or mala fide
It has been contended by the learned counsel for the petitioner that transfer
order was issued only on the basis of the complaints made by the Builders Association
against the petitioner and, as such, the same is penal and stigmatic in nature. Further,
the wife of the petitioner is a State Government employee and as per O.M. issued by
D.O.P. and T both the spouses should be posted at one place. The order of transfer is
bad in law and is legally not sustainable. All these relevant aspects of the matter have
not been correctly appreciated by the tribunal and the application has been rejected in
a cursory manner.
In the transfer matter the scope of judicial review is very limited. It is a trite
law that no Government servant has any legal right to be posted at any particular
place of his choice. Transfer is an incident of Government service. Transfer order can
be challenged only on the ground of violation of the statutory rules or Mala fide.
Sandeep Bajpai V. Union of India and others, 2018 (1) AWC 1024.
Stamp Act:
Sec. 47-A(3) –Deficiency in payment of Stamp Duty on any
instrument- Limitation for the Collector to take cognizance, for
initiating proceedings –Held, is four years from the date of
registration of the instrument
Sub Section 3 of Section 47-A of the Act, 1899 clearly provides
that the Collector may, suo motu, on a reference within four years from
the date of registration of any instrument, on which duty is chargeable on
the market value of the property call for and examine the instrument for
the purpose of satisfying himself as to the correctness of the market value
of the property. Sub Section 3 of Section 47-A of the Act, 1899 reads as
under:
"47-A (3) The Collector may, suo motu, on a reference from any
Court or from the Commissioner of Stamps, or an Additional
Commissioner of Stamps or a Deputy Commissioner of Stamps or
an Assistant Commissioner of Stamps or any officer authorised by
the State Government in that behalf, within four years from the
date of registration of any instrument, on which duty is chargeable
on the market value of the property not already referred to him
under sub-section (1), call for and examine the instrument for the
purpose of satisfying himself as to the correctness of the market
value of the property, which is the subject of such instrument and
the duty payable thereon, and if after such examination he has
reason to believe that the market value of such property has not
been truly set forth in such instrument, he may determine the
market value of such property and the duty payable thereon:"
Sub section 3 of Section 47-A itself prescribed the limitation within
which proceedings for recovery of deficiency of stamp duty may be
initiated. In the present case admittedly the sale deed was executed on
09.06.1992 whereas the notice under Section 47-A of the Act, 1899 was
issued on 28.09.2000 which is almost 8 years from the date of the
execution of the sale deed, therefore the entire proceedings were grossly
barred by time.
This controversy is no longer res integra having been settled by a
Full Bench of this Court in the case of Girjesh Kumar Srivastava and
another Vs. State of U.P. and others reported in AIR 1998 Allahabad 237
(Special Bench) wherein the Full Bench has held that the period of
limitation will run from the date when the Collector takes cognisance of
the matter and initiates proceedings. Jag Mohan V. The Commissioner
and other 2018 (36) LCD 373
Sec. 47-A (3)- Deficiency in Stamp Duty- Proceedings, mode of
The notice must necessarily disclose to the person concerned the
basis and the reasons upon which the Collector has come to form an
opinion that the market value of the property has not been truly set forth.
Smt. Asha Kapoor V. State of U.P., 2018 (36) LCD 410
Statutory Provisions:
The Uttar Pradesh Public Services (Tribunal Amendment) Act, 2017
[U.P. Act 4 of 2017]
An Act further to amend the Uttar Pradesh Public Services (Tribunal) Act 1976
It is hereby enacted in the Sixty-eight Year of the Republic of India as follows-
Prefatory Note-Statement of Objects and Reasons- The Uttar Pradesh Public
Services (Tribunal) Act 1976 (U.P. Act 17 of 1976) has been enacted to provide for the
constitution of a tribunal of adjudicate disputes in respect of matter relating to
employment of all public servants of the State of Uttar Pradesh. Proviso to sub-section
(8) of Section 3 of the said Act provides that the Chairman shall not hold office after
attaining the age of seventy years and a member shall not hold office after attaining
the age of sixty five years. With a view to giving an opportunity to other talented
officers so as to ensure efficiency in the working of the tribunal, it has been decided to
amend the said Act to reduce the maximum age for holding office of the Chairman
from seventy years to sixty-five years and Vice-Chairman and Member from sixty five
years to sixty two years.
The Uttar Pradesh Public Services (Tribunal) (Amendment) Bill, 2017 is
introduced accordingly.
1. Short title.- this Act may be called the Uttar Pradesh Public Services (Tribunal)
(Amendment) Act, 2017
2. Amendment of Section 3 of U.P. Act No 17 of 1976.- In Section 3 of the Uttar
Pradesh Public Service (Tribunal) Act, 1976-
(a) In sub-section (8), for the existing proviso the following proviso shall be
substituted, namely-
“Provided that no Chairman, Vice-Chairman or member shall hold office as
such after he has attained, -
(a) In the case of Chairman, the age of sixty five years, and
(b) In the case of Vice-Chairman or a member, the age of sixty two year.”
(b) after sub –section (8-b) the following sub-section shall be inserted,
namely –
“(8-c) The provisions of sub-section (8) as amended by the Uttar Pradesh
Public Services (Tribunal) (Amendment) Act, 2017 shall apply also to the
Chairman, Vice- chairman, or a member holding office on the commencement
of the said Act.”
High Court of Judicature at Allahabad, Amendment (Admin. ‘G-1’ ) Section. Noti. No.
67/VIIIc, Correction Slip No. 256, dated February 20, 2017, published in the U.P.
Gazette, Part 1-Ka, dated 4th March, 2017, p 105
In exercise of the powers conferred by Article 225 of the Constitution of India
and all other powers enabling it in this behalf, the High Court of Judicature at
Allahabad is pleased to make the following amendment in Allahabad High Court Rules,
1952, Volume I, with effect from the date of its publication in the Official Gazette.
CHAPTER XXIV
RULES FRAMED UNDER SECTION 34 (1)
1. Title and commencement.- (i) These rule shall be called “Allahabad High Court
(Amendment) Rules, 2017”
(ii) These rules shall come into force from the date of its publication in the
Official Gazette of the Government.
2. Definition.- The rule means “Allahabad High Court Rules, 1952”
3. Amendment in Rule 3-A of Chapter XXIV.- The existing provisions of Rules 3-A
under heading ‘Rules framed under Section 34 (1)’ of Chapter XXIV of the
Allahabad High Court Rules, 1952 shall be amended as under:
3-A (i) Unless the Court grants leave, an Advocate who is not on the rule of
Advocates in the High Court at Allahabd or Lucknow shall not be allowed to
appear, act or plead in the High Court at Allahabad or Lucknow as the case might
be unless he filed appoint along with a Advocate who in on such roll for Allahabad
Cases at Allahabad and for Lucknow Cases at Lucknow.
(ii) The High Court shall prepare a Roll of Advocate in Parts ‘A’ and ‘B’ of those who
ordinarily practice in the High Court part ‘A’ for Allahabad and Part ‘B’ for
Lucknow.
(ii) the roll of Advocates shall bear in regard to each advocate entered, his full
name, father’s name, passport size cloured photograph, enrolment number, date
of enrolment, complete postal address both of residence and office which shall be
(Deleted) of Allahabd or Lucknow as the case may be.
(iv) The rolls shall be prepared and revised periodically in the manner and under
the authority as may be prescribed by the Chief Justice.
(v) This Rule 3-A shall come into force after notification by the Chief Justice that
both the rolls for Allahabd and Lucknow in Parts ’A’ and ‘b’ are complete
Transfer of Property Act:
S. 53-A – Part performance –Protection of possession of proposed
transferee, who takes possession of property in part performance of
contract – Essential conditions to be fulfilled.
Doctrine of part performance of contract as provided by Section
53-A aims at protecting the possession of such transferee, who takes
possession of the property in part performance of the contract and is
willing to perform his part of the contract, provided certain conditions
contemplated by Section 53A of the Act are fulfilled.
If a transferee wants to protect his possession under Section 53A of
Act he has to establish that following conditions are satisfied:
(1) there must be a contract to transfer for consideration any
immovable property;
(2) contract must be in writing, signed by the transferor, or by
someone on his behalf;
(3) writing must be in such words from which the terms necessary
to construe the transfer can be ascertained;
(4) transferee must in part performance of the contract take
possession of the property, or of any part thereof;
(5) transferee must have done some act in furtherance of the
contract ; and
(6) transferee must have performed or be willing to perform his
part of the contract;
If aforementioned conditions are fulfilled then in a given case,
there is an equity in favour of the proposed transferee, who can protect his
possession against the proposed transferor even though a registered deed
conveying the title is not executed by the proposed transferor. In such as
situation equitable doctrine of part performance provided under Section
53A of Act comes into play. Arun Kumar Gupta v. Santosh Kumar,
AIR 2018 All. 11
U.P. Urban Building (Regulation of Letting, Rent and Eviction) Act:
Sec. 3 (i)- U.P. Provincial Small Cause Courts Act, 1887 –Sec. 15 read with Schedule II
Clause (iv) as amended- Suit –For Eviction and arrears of rent- Decreed against
tenants- petitioners- Maintainability of proceeding for eviction
In this case, learned counsel appearing for the petitioners submits that on the
date of notice the property in dispute was an open land as admitted by the landlord,
therefore, the suit would not lie before the SCC Court, it would lie before the regular
Civil Court in view of Section 15 read with Schedule-II (State Amendment) of the U.P.
Provincial Small Cause Courts Act, 1887, as, once it was the case of the opposite party
no. 3 herein that the building which had been let out had got demolished, then, the
very basis of tenancy had ceased to exist, therefore, the proceedings were essentially
for eviction from the open land per se, as such, the competent forum was the Regular
Civil Court.
The contention of Shri Kunal Shah holding brief of Shri Gaurav Mehrotra,
learned counsel for the opposite party no. 3 is that it is an admitted factual position
that the tenanted premises were let out for residential purposes much prior to its
purchase by his client in the year 1970 and that the tenancy continued even
thereafter. However, at some stage the building got demolished, a fact has been
denied by the petitioners, but this does not mean that the tenancy ceased to exist as,
in view of the definition of ''building' it means land appurtenant to the building. The
definition of building contained in Section 3(i) of the U.P. Act No. XIII of 1972 when
read conjointly with enunciation of the meaning of ''building' by the Supreme Court in
its decisions the land beneath it and appurtenant thereto is also part of it, therefore,
even after demolition not only the building as defined aforesaid, continues to exist,
but, the tenancy also subsists, in respect of which, the petitioners did not pay the rent
since 1970, hence, a notice was given seeking arrears of rent and also on the ground
that the structure no longer being in existence and the petitioner having illegally set
up a ''Gumti' thereon contrary to the purpose for which the tenancy was created
thereby changing the use for commercial purposes, seeking his eviction therefrom,
and the Courts below had concurrently held that the petitioners were in arrears of
rent and there was veritably no contest on this issue. The only issue raised by the
petitioners being one of jurisdiction of the SCC Court to deal with such matters on the
premise that what remains now is open land, it is absolutely misconceived, as, the
dispute relates to tenancy in respect of a ''building' as defined under Section 3(i) of the
Act, 1972, which continues to exist in the eyes of law, therefore, the jurisdiction was
with the SCC Court and it was not a dispute where his client was seeking possession of
open land per-se i.e. bereft of the tenanted premises and the tenancy. Satya Prakash
and others v. District Judge, Sultanpur and others, 2018 (1) AWC 877
U.P. Zamindari Abolition & Land Reforms Act:
Gaon Sabha Manual, Para 46 (7) –Allotment of Abadi site- Duration
of-
Allotment of lease creates life-time interest only. If the building is
abandoned or the owner dies, land or site shall escheat to the State. Har
Dayal and others v. Mewa Ram and others, 2018 (36) LCD 349
Sec. 117 –Gaon Sabha Manual, Para 46(7) –On the death of allottee,
land of the house gets vested in the State
Once land of the house of Khatkin vested in the State under para
46(7) of the Gram Sabha Manual as she died issuless admittedly, it
required a notification under Section 117 of the Act No. 1 of 1941 for
transfer of the same to the Gaon Sabha. Thus, the theory of allotment of
abadi site and thereby claim over the land as set up by defendants is
absolutely untenable in law nor, there is any possession memo prepared
giving possession of land with exact dimension to the defendants. Thus in
view of the above, the substantial question of law A is decided in
affirmative and against the defendants. Har Dayal V. Mewa Ram, 2018
(36) LCD 349
Sec. 176- U.P. Revenue Code, 2006- Section 231- Suit for partition- Rejection of
objection as to -Maintainability of
A partition suit being aforesaid Case No.D201309720076 (Raj Singh vs. Pal
Singh) under Section 176 of the U.P.Z.A. & L.R. Act was filed in the year 2010. The said
case was pending as on 11.02.2016 when the U.P. Revenue Code, 2006 came into
force. Before the S.D.M. Shamli, the petitioner has raised an objection over
maintainability of the aforesaid case on the ground that the said partition case is not
maintainable, inasmuch as that the U.P. Revenue Code has now holds the field. The
objection was rejected by the S.D.M. vide order dated 20.04.2017 on the ground that
the case is pending since the year 2010 and as such provisions of U.P.Z.A. & L.R. Act
would be applicable. Aggrieved with the said order, the petitioner filed a Revision
No.889 of 2017 which has been dismissed by the impugned order dated 25.08.2017
passed by the Board of Revenue U.P. Allahabad.
Section 231(1) is applicable on all cases pending before the State Government
or any Revenue Court immediately before the commencement of the Code. Such cases
have to be decided in accordance with the provisions of the appropriate law, which
would have been applicable to them had this Code not been passed. Undisputedly, the
aforesaid partition suit under Section 176 of the U.P.Z.A. & L.R. Act was filed before
the S.D.M. Shamli in the year 2010. The said partition suit was pending as on the date
when the U.P. Revenue Code came into force. Therefore, in view of the provisions of
Section 231 of the Code, the aforesaid suit shall be governed by the provisions of the
U.P.Z.A. & L.R. Act. Learned counsel for the petitioner could not show any provision in
the Code which expressly provides otherwise. Under the circumstances, I do not find
any infirmity either in the order dated 20.04.2017 passed by the S.D.M. in the
aforesaid case or the order dated 25.08.2017 passed in Revision No.889 of 2017
(Pratap Singh vs. Pala Singh and others).
In view of the above discussion, the writ petition is dismissed. Pratap Singh V.
Board of Revenue and others, 2017 (6) AWC 6310
S 331 (1-A) [as inserted by Amendment Act (4 of 1969)] – CPC ( 5 OF
1908), Ss. 21, 47, 100 – Jurisdiction of Civil Court – Objection as to –
Execution stage/proceedings – Consequent to insertion of S. 331 (1-A)
pleas as regards maintainability of suit before Civil Court has to be
raised in court of first instance – Plea could not be set up by
defendants in second appeal.
A plea as regards complete lack of jurisdiction in a court to try the
subject matter of suit can be raised at any stage even in the execution
proceeding but by addition of sub-section (1-A) in section 331 of the
U.P.Z.A. & L.R. Act, the legislative intent is clear that where no objection
is taken as regards jurisdiction of the civil court at the appropriate stage in
the trial, the trial court's decision is not to be assailed before the appellate
court or the revisional court on ground of lack of jurisdiction and, in a
case where the objection as regards jurisdiction is taken at the appropriate
stage, the challenge in that regard is to be entertained by the appellate
court or revisional court, as the case may be, when it is demonstrated that
there has been a consequent failure of justice. Shri Niwas V. State of
U.P., AIR 2018 (NOC) 210 (All.)
Wakf Act:
Ss. 63 and 64 - Appointment of Mutawalli- Order dated 4.4.1996 passed by Board’s –
Officiating Secretary appointing petitioner as Mutawalli was passed after Wakf Act,
1995 came into operation after 1.1.1996- Held, that order dated 4.4.1996 passed by
Officiating Secretary appointing petitioner as Mutawalli was completely without
jurisdiction and hence void ab initio
Under challenge in Writ Petition No. 3778(MB) of 1996 is an order dated
05.06.1996 said to have been purportedly passed by the Controller of U.P. Sunni
Central Wakf Board whereby the operation of the order dated 04.04.1996 was stayed.
It is noticeable that by means of order dated 04.04.1996, the petitioner-Sahibzada
Moinuddin Siddiqui was appointed as Mutwalli to manage the affairs of the Wakf in
question. This court while entertaining the writ petition no. 3778(MB) of 1996, passed
an order on 03.01.1997, whereby the order impugned in the said writ petition dated
05.06.1996 was stayed and accordingly in compliance of the said order dated
03.01.1997, passed by this Court, no further proceedings were held by the Board or
any other officer of the Board.
In Writ Petition No. 9093(MB) of 2016, which too has been filed by the
petitioner-Sahimzada Moinuddin Siddiqui, under challenge is the decision dated
08.03.2016 said to have been taken by the U.P. Sunni Central Wakf Board whereby Sri
Shahibzada Khurshid Husain (respondent No.4 in Writ Petition No. 9093(MB) of 2016)
has been appointed as Mutwalli with the finding that it would not be appropriate to
appoint the petitioner- Sahibzada Moinuddin Siddiqui as Mutwalli. At this juncture,
court may also notice that Wakf Board while taking the decision dated 08.03.2016 has
given a finding that there was a vacancy in the office of Mutwalli of the Wakf in
question.
Admittedly, the order dated 04.04.1996 passed by the officiating Secretary of
the Board is an order passed after the Wakf Act, 1995 came into operation i.e. after
01.01.1996. The term of Sri Sahibzada Khurshid Husain as Mutwalli came to an end on
01.04.1996 for the reason that he was appointed as Mutwalli only for a period of two
years by means of order dated 02.04.1994, passed by the Secretary of the Board. On
the reasoning given by us above for holding the order dated 05.06.1996 to be without
jurisdiction and hence void ab initio, court is persuaded to hold that the order dated
04.04.1996, passed by the officiating Secretary of the Board whereby the petitioner-
Sahibzada Moinuddin Siddiqui was appointed as Mutwalli is also completely without
jurisdiction and hence void ab initio.
As a result of forgoing discussions made and reasons given above, both the
writ petitions are disposed off in terms of the following order and directions:
(1) The order dated 05.06.1996, passed by the Controller of the U.P. Sunni
Central Wakf Board, as is contained in Annexure No. 6 to the Writ Petition No.
3778(MB) of 1996 and the entire proceedings from where the said order dated
05.06.1996 has emanated, are hereby quashed.
(2) The impugned decision dated 08.03.2016 of U.P. Sunni Central Wakf Board,
which is contained as Annexure No. 1 to the Writ Petition No. 9093(MB) of 2016 is also
hereby quashed.
(3) Since court has also held above that the order dated 04.04.1996, passed by
the officiating Secretary of the U.P. Sunni Central Waqf Board, as is contained in
Annexure No.3 to the writ petition No.3778(MB) of 1996, is completely without
jurisdiction and void ab initio, hence the said order will also not be operative hence-
fourth. Sahibzada Moinuddin Siddiqui V. U.P. Sunni Central Board of Wakfs and others,
2018 (1) AWC 765
Sec. 85 – Constitution of India, Art. 226 – Bar to jurisdiction of Court
– Refers to Civil Court, Revenue Court and any other authority –
Does not include High Court – As power of High Court to issue writs
under Art. 226 being basic feature cannot be curtailed.
Sec. 85 of the Act bars jurisdiction of the “civil court, revenue
court and any other authority”. It does not include a High Court nor could
it be, as power of the High Court to issue prerogative writs under Article
226 of the Constitution being one of the basic features, cannot be
curtailed. In other words, the bar placed under this Act can neither eclipse
nor subsume constitutional powers conferred on the High Court. In
appropriate case, it is always open to the High Court to invoke its power
under Article 226 of the Constitution. Whether or not, such power is
exercised, is a matter of judicial discretion to be exercised having regard
to the facts and circumstances of a particular case. Thus, even otherwise,
we are of the firm opinion that even if certain matters would fall within
the jurisdiction of the Tribunal, yet there cannot be an absolute bar in
exercise of power under Article 226 of the Constitution.Abhishek Shukla
v. High Court of Judicature, Allahabad, AIR 2018 All. 32
Words and Phrases:
“Contributory negligence—meaning of
“Contributory negligence” it means failure by a person to exercise reasonable case for safety of either himself or his property, so that he becomes blameworthy in part as author of his own wrong. [S. Manjula Devi vs. Brijpal Singh, 2018 ACJ 55 (Mad.)]
“Joint tenancy and tenancy in common” – Distinction between – stated
Joint tenants form one body owning the properties. A joint tenancy is said to
be distinguished by four unities, viz., unity of possession, unity of interest, unity of title
and unity of the time of commencement of such title. In the case of a tenancy-in-
common, it does not require all the four requisites of joint tenancy. Between a joint
tenancy and tenancy-in-common, there is one similarity, viz., unity of possession. In
order to constitute a tenancy-in-common, there must be an equal right to possession
of every part and parcel of the subject matter of the tenancy; joint possession is not
essential. Other three unities mentioned in the case of joint tenancy need not be there
in tenancy-in-common, so that the interest of the tenants-in-common may be
unequal; their title may be different and such title might have commenced at different
times. A tenant-in-common, as to his own share, is precisely in the position of owner
of the entire and separate estate. He can transfer his share during his life time or make
a bequest so as to take effect after his death. On his death intestate, his estate would
devolve on his heirs. Whereas a joint tenant cannot dispose of his share by Will
because the rule of survivorship applied on the death of a joint tenant. But a joint
tenant can dispose of his interest by a transfer inter vivos. Upon a transfer inter vivos
by a joint tenant, the transferee does not become a joint tenant as he holds his share
transferred to him under a title different from the other joint tenants of his transferor.
Victoria V. Yesuraj Kumar, AIR 2018 Ker 27
LEGAL QUIZ
Q.1 Whether an application for claiming a juvenile is maintainable after passing of
sentence?
Ans. Kindly see the following provisions of Juvenile Justice (Care & Protection of
Children) Act 2000.
Section 7-A- Procedure to be followed when claim of juvenility is
raised before any Court- (1) Whenever a claim of juvenility is raised before any
court or a Court is of the opinion that an accused person was a juvenile on the
date of commission of the offence, the Court shall make an inquiry, take such
evidence as may be necessary (but not an affidavit) so as to determine the age
of such person, and shall record a finding whether the person is a juvenile or a
child or not, stating his age as nearly as may be: Provided that a claim of
juvenility may be raised before any Court and it shall be recognized at any
stage, even after final disposal of the case, and such claim shall be determined
in terms of the provisions contained in the Act and the rules made thereunder,
even if the juvenile has ceased to be so on or before the date of
commencement of this Act.
(2) If the Court finds a person to be a juvenile on the date of
commission of the offence under sub-section (1), it shall forward the juvenile
to the Board for passing appropriate order, and the sentence, if any, passed by
a court shall be deemed to have no effect.
Q. 2 Whether a transfer application referred by a private person (Complainant) is
maintainable in session trial?
Ans. Section $08 (1) Cr.PC empowers a Sessions Judge to transfer any particular
case to one criminal court to another criminal court in his sessions division.
Under Section 408 (2) the Sessions Judge may act either on the report of the
lower court or on the application of a party interested or on his own initiative.
Kindly see following rulings on the point
Radhey Shyam & Ors. v. State of U.P. , 1984 ACrR 297
Pappu v. State of U.P. and another, 2007 (57) ACC
Q. 3 i. Can bail order be passed without Probation Officer’s report?
(S. 13b). Rule 13(e) of J.J. Rules, 2007
ii.Where juvenile is held quilty, can judgment of conviction be passed, in
absence of DPO Report?
(S. 15(2), Rule 15(2)
“The problem of DPO report is more where juvenile are not having abode in
U.P. or living in Jhuggi-jhopri, in such cases DPO is unable to reach their
parents.
iii. S. 14 Proviso r/w 13(6) mandates that every inquiry shall be completed
within 4 months and in exceptional cases 6 months shall lead to “Termination
of proceedings” except in serious offences.
(a) The word “serious offence” is not defined in J.J. Act not in Rules, 2007. Only
a running reference is made in R. 11 (7). Can the definition of R. 11 (7) be fully
applied?
(b) Since “Termination” of proceedings is not provided in S. 14 of Act only R.
13 (7) permits it, can R. 13(7) shall prevail overs S. 14 of Act?
(c) What will be the effect of “Termination” Whether acquittal or discharge?
(d) Can S. 258, Cr.PC be applied r/w R/ 13(2) (e)?
Ans. i. S. 13(b) imposes a duty on police who has arrested a juvenile to inform his
parent or guardian and Probation Officer an Rule 13(1)(e) relates to the
notification of next date of hearing and obtaining social investigation report
from Probation Officer.
ii. S. 15(2) and Rule 15(2) clearly provide that Board shall obtain the social
investigation report either through a Probation Officer or a recognized
voluntary organization or otherwise, and shall take into consideration the
findings of such report before passing an order. If no report is given by P.O.,
the report of voluntary organization may be taken into account while passing
order after holding the juvenile guilty.
iii.
(a) The word “serious offences” has been explained U/r 13(7).
(b) Rules can not prevail over the provisions of Act.
(c) The words ‘acquittal” or “Discharge” has not been used in the Act.
(d) All the procedure of trial in summons cases, shall be applied.
Q. 4 If there is any set standard for getting concurrent charge allowance?
Ans. No Such Standard has been set in G.O. dt. 27.01.2006
Q.5 Where a Link Officer performing the work of another court like signing order
sheets, exemption application, making recommendations in MAC refund
voucher etc., will be entitled for concurrent charge allowance?
Ans. The concurrent charge allowance has been granted to judicial officer on the
recommendations of Shetty Commission which are as follows- 19. 155- “We
recommend that charge allowance be paid to the judicial officer when he is
placed in charge of another court continuously beyond the period of ten
working days and if he performs appreciable judicial work of the Court”
The Controlling Authority i.e. District Judge is competent to grant such
allowance if he is satisfied that ‘appreciable judicial work’ has been performed
by such judicial officer. For further clarification of G.O., you may approach to
Government or appropriate authority.
