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Code of Criminal Procedure, 1973; Ss. 188, 468, 470, 473 & 482/Penal Code, 1860; Ss. 406 and 498A/Dowry Prohibition Act, 1961; Ss. 4 & 6: Matrimonial offences-Court’s power to take cognizance beyond period of limitation-Quashing of proceedings before Magistrate on ground of limitation-Held: In the interest of justice, court could take cognizance of an offence after expiry of limitation period by liberally exercising power u/s.473 Cr.P.C.-High Court should be extremely cautious and slow to interfere with investigation/trial of criminal cases-It could exercise inherent powers u/s.482 Cr.P.C. only when it is satisfied that FIR does not disclose commission of cognizable offence or prosecution is barred by limitation or to prevent abuse of process of the Court or continuation of proceeding of the criminal case would result in failure of justice-Magistrate took cognizance of offence after lapse of three years-A co-ordinate Bench of High Court quashed the proceeding qua the parents of appellants on the ground that Magistrate could not have taken cognizance of offence after three years-Appellants do not appear to have drawn attention of Single Judge of the High Court about quashing of the said proceedings-In such peculiar facts of the case, continuation of the proceedings would amount to abuse of process of the Court-Hence, the proceedings as against accused, pending in the Court of Metropolitan Magistrate, quashed-Limitation-Courts power to relax. Appellant No.1, an engineer working in USA, married the eldest daughter of respondent no. 2. Before marriage, the appellant and their parents demanded certain amount of cash and jewellery as dowry. They also demanded transfer of certain property belonging to the parents of the girl in favour of the parents of appellant No.1. Appellant No.1 and his parents accepted the proposal and performed betrothal. Later, they demanded Zen car and threatened to cancel the engagement unless the car was given. The demand was fulfilled by the parents of the girl by raising loan. After marriage, when she went to USA along with the parents of the appellants, she stayed at New Jersey in U.S.A. from 1.11.1998 to 2.12.1998. During this period, she was allegedly subjected to cruelty and harassment by the appellants and their parents for demand of more and more dowry. She left her matrimonial home and stayed with her relatives. Later, appellant No.1 instituted divorce petition in Superior Court at New Jersey and an ex parte decree was passed in his favour. In the meanwhile, the victim informed to her parents about the ill-treatment meted out to her by her husband and his parents. Thereupon, respondent no. 2-mother of the victim, filed a complaint in the Court of Metropolitan Magistrate. The Magistrate referred the complaint for investigation under Section 156(3) Cr.P.C. After investigation, the Inspector of Police, Women Protection Cell, C.I.D., submitted the final report with the suggestion to close the case. The Investigating Officer also made a reference to the direction given by Additional Director General of Police, CID to close the case due to lack of evidence. The Magistrate rejected the final report and directed the police to make further investigation. The police conducted further investigation and a Notice was also issued to the victim to appear before CID Police. Respondent no. 2 filed a Criminal Petition under Section 482 Cr.P.C. for quashing the notice for appearance of her daughter. The same was disposed of by the Single Judge with liberty to the petitioner to approach the investigating agency/Court and inform it about the efforts being made by her daughter to come to India. Respondent no. 2 also filed a Writ Petition for issuance of a direction to the Regional Passport Officer to impound the passport of appellant no. 1. That petition was allowed by the Single Judge of the High Court. The victim obtained duplicate passport and visa and came to India. She appeared before the Investigating Officer and gave statement under Section 161 Cr.P.C. The police filed a charge-sheet under Sections 498A and 406 IPC read with Sections 3, 4 and 6 of the Dowry Act. The Magistrate took cognizance of the case and issued summons to the appellants and their parents. The parents of the appellants challenged the proceedings in the Criminal Petition filed by the parents of the victim under Section 482 Cr.P.C. The Single Judge quashed the proceedings. The appellant also filed a petition for quashing the proceedings against him. However, the Single Judge of the High Court held that the proceedings in Criminal Petition cannot be quashed against him as the Magistrate had taken cognizance within three years. Hence the present appeal. Appellants contended that the Single Judge of the High Court committed an error by refusing to quash the proceedings in the Criminal Petition filed by the parents of the victim ignoring the fact that the Magistrate had taken cognizance after almost four years of the last act of alleged cruelty committed against the victim; that after dissolution of the marriage, the victim had taken back the Gold and Silver jewellery and then contracted marriage with another person and this fact ought to have been considered by the Single Judge of the High Court while examining the appellants’ pleas that the proceedings of criminal case instituted against them amounts to an abuse of the process of law; and that in exercise of the power under Section 482 Cr.P.C., the High Court is duty bound to quash the proceedings which are barred by time and protect the appellants against unwarranted persecution. Respondent No.2 submitted that Single Judge of the High Court rightly declined to quash the proceedings in the criminal petition filed by her because the offences committed by the appellants were continuing in nature; that even though as on the date of taking cognizance of offences by the Magistrate, a period of more than three years had elapsed, the proceedings in the Criminal Petition cannot be declared as barred by limitation because the appellants were not in India and the period of their absence is liable to be excluded in terms of Section 470(4) Cr.P.C.; that offences of cruelty and criminal breach of trust are continuing offences and prosecution launched against the appellants cannot be treated as barred by time; that the Magistrate could also exercise power under Section 473 Cr.P.C. for extending the period of limitation because the appellants and their parents did not co-operate in the investigation and also prevented the victim from coming to India to give her statement; and that the proceedings of the criminal case cannot be quashed only on the ground of lack of sanction under Section 188 Cr. P.C. Allowing the appeal, the Court HELD: 1. While considering the applicability of Section 468 Cr.P.C. to the complaints made by the victims of matrimonial offences, the court can invoke Section 473 Cr.P.C. and can take cognizance of an offence after expiry of the period of limitation keeping in view the nature of allegations, the time taken by the police in investigation and the fact that the offence of cruelty is a continuing offence and affects the society at large. To put it differently, in cases involving matrimonial offences the court should not adopt a narrow and pedantic approach and should, in the interest of justice, liberally exercise power under Section 473 for extending the period of limitation. [Para 23] [496-F, G; 497-A] State of Punjab v. Sarwan Singh, [1981] 3 SCC 34; Venka Radhamanohari v. Vanka Venkata Reddy, [1993] 3 SCC 4; Arun Vyas v. Anita Vyas, [1999] 4 SCC 690; State of Himachal Pradesh v. Tara Dutt [2000] 1 SCC 230 and Ramesh v. State of Tamil Nadu, [2005] 3 SCC 507, relied on. 2.1. The High Court should be extremely cautious and slow to interfere with the investigation and/or trial of criminal cases and should not stall the investigation and/or prosecution except when it is convinced beyond any manner of doubt that the FIR does not disclose commission of any offence or that the allegations contained in the FIR do not constitute any cognizable offence or that the prosecution is barred by law or the High Court is convinced that it is necessary to interfere to prevent abuse of the process of the court. In dealing with such cases, the High Court has to bear in mind that judicial intervention at the threshold of the legal process initiated against a person accused of committing offence is highly detrimental to the larger public and societal interest. [Para 30] [501-E, F, G] R.P. Kapur v. State of Punjab, AIR (1960) SC 866; State of Haryana v. Bhajanlal, [1992] Supp. 1 SCC 335; State of Bihar v. J.A.C. Saldanha, [1980] 1 SCC 554 and State of West Bengal v. Swapan Kumar Guha, [1982] 1 SCC 561 and M/s Zandu Pharmaceutical Works Ltd. v. Mohd. Sharaful Haque, [2005] 7 SCC 254, referred to. 2.2. The people and the society have a legitimate expectation that those committing offences either against an individual or the society are expeditiously brought to trial and, if found guilty, adequately punished. Therefore, while deciding a petition filed for quashing the FIR or complaint or restraining the competent authority from investigating the allegations contained in the FIR or complaint or for stalling the trial of the case, the High Court should be extremely careful and circumspect. If the allegations contained in the FIR or complaint discloses commission of some crime, then the High Court must keep its hands off and allow the investigating agency to complete the investigation without any fetter and also refrain from passing order which may impede the trial. [Para 30] [501-H; 502-A, B] 2.3. The High Court should not go into the merits and demerits of the allegations simply because the petitioner alleges malus animus against the author of the FIR or the complainant. The High Court must also refrain from making imaginary journey in the realm of possible harassment which may be caused to the petitioner on account of investigation of the FIR or complaint. Such a course will result in miscarriage of justice and would encourage those accused of committing crimes to repeat the same. However, if the High Court is satisfied that the complaint does not disclose commission of any offence or prosecution is barred by limitation or that the proceedings of criminal case would result in failure of justice, then it may exercise inherent power under Section 482 Cr.P.C. [Para 30] [502-C, D, E] 3.1. In the instant case, although the Single Judge of High Court dealt with various points raised by the appellants and negatived the same by recording the detailed order, his attention does not appear to have been drawn to the order dated 24.10.2006 passed by the Co-Ordinate Bench in Criminal Petition No.1302/2003 whereby the proceedings of CC No.240/2002 were quashed qua the parents of the appellants on the ground that the Magistrate could not have taken cognizance after three years. Respondent No.2 is not shown to have challenged the order, therefore, that order will be deemed to have become final. If attention of the Single Judge who decided Criminal Petition filed by the appellants had been drawn to the order passed by another Single Judge in Criminal Petition No.1302/2003, he may have, by taking note of the fact that the Magistrate did not pass an order for condonation of delay or extension of the period of limitation in terms of Section 473 Cr.P.C., quashed the proceedings of CC No.240/2002. [Para 32] [502-F, G; 503-A, B] 3.2. In the peculiar facts of this case, continuation of proceedings of CC No.240/2002 will amount to abuse of the process of the Court. It is not in dispute that after marriage, the victim lived with appellant No.1 for less than one and a half months. It is also not in dispute that their marriage was dissolved by the Superior Court at New Jersey, U.S.A. The victim is not shown to have challenged the decree of divorce. As a matter of fact, she had solemnized second marriage with another person and has two children from the second marriage. She also received all the articles of dowry (including jewellery). Almost nine years has elapsed since the marriage of appellant No.1 with the victim and seven years from her second marriage. Therefore, at this belated stage, there does not appear to be any justification for continuation of the proceedings in CC No.240/2002. Rather, it would amount to sheer harassment to the appellant and the victim who are settled in USA, if they are required to come to India for giving evidence in relation to an offence allegedly committed in 1998-99. It is also extremely doubtful whether the Government of India will, after lapse of such a long time, give sanction in terms of Section 188 Cr.P.C. Hence, the proceedings of CC No.240/2002, pending in the Court of Metropolitan Magistrate, are quashed. [Paras 33 and 34] [503-B, C, D, E, F, G] Bina Madhavan and S. Udaya Kumar Sagar (for M/s. Lawyer’s Knit & Co.) for the Appellants. I.V. Narayana, T.N. Rao, Manjeet Kirpal, Paramjeet Singh and L.D. Rajendar for the Respondents.2008 AIR 787 , 2007(13 )SCR478 , , 2007(14 )SCALE321 ,
CASE NO.: Appeal (crl.) 1708 of 2007 PETITIONER: Sanapareddy Maheedhar and Another RESPONDENT: State of Andhra Pradesh and Another DATE OF JUDGMENT: 13/12/2007 BENCH: S.B. Sinha & G.S. Singhvi JUDGMENT: J U D G M E N T (arising out of Special Leave Petition (Crl.) No. 6680 OF 2006) G.S. Singhvi, J. Leave granted. This … Continue reading
it is no doubt true that the conviction in a case of rape can be based solely on the testimony of the prosecutrix, but that can be done in a case where the court is convinced about the truthfulness of the prosecutrix and there exist no circumstances which cast a shadow of doubt over her veracity. If the evidence of the prosecutrix is of such quality that may be sufficient to sustain an order of conviction solely on the basis of her testimony. In the instant case we do not find her evidence to be of such quality.
CASE NO.: Appeal (crl.) 1156-1158 of 2005 PETITIONER: Ramdas and others RESPONDENT: State of Maharashtra DATE OF JUDGMENT: 07/11/2006 BENCH: B.P. SINGH & TARUN CHATTERJEE JUDGMENT: J U D G M E N T B.P. Singh, J In these appeals by special leave the appellants Ramdas, Ashok and Madhukar have challenged their conviction under … Continue reading
Penal Code, 1860: ss. 302, 302/114, 307 and 307/114 – Three of the members of a group of agitators setting ablaze a University bus full of girl-students – Three girls burnt alive to death and several others received burn injuries – HELD: Courts below rightly convicted and sentenced the three accused to death – Their activities were not only barbaric but inhuman to the highest degree – The manner of the commission of the offence is extremely brutal, diabolical, grotesque and cruel – It is shocking to the collective conscience of society – Sentence/Sentencing – Sentence of death – Aggravating and mitigating circumstances – Explained. ss. 147/148, 341 IPC and ss. 3 and 4 of TN (PDL) Act, 1982 r/w s.149 – IPC Offences committed by a group of agitators – Conviction and sentence by trial court – Sentence directed to run consecutively – High Court directing sentences to run concurrently – HELD: The maximum sentence to be served by the accused as per High Court judgment being 2 years and accused having served 14 months of sentence, in the circumstances of the case, sentence reduced to the period already undergone – Tamil Nadu (Prevention of Dangerous Activities of Boot Laggers, Traffic Offenders, Forest Offenders Activities, Immoral Traffic Offenders and Slum Grabbers and Videopirate) Act, 1982. Evidence: Discrepancies in evidence – HELD: An undue importance should not be attached to omissions, contradictions and discrepancies which do not go to the heart of the matter and shake the basic version of the prosecution witness. Hostile witness – Evidence of – HELD: cannot be discarded as a whole, and relevant parts thereof which are admissible in law, can be used by the prosecution or the defence. Extra-judicial confessional statement – Exhibiting of – Explained. Investigation: Irregularities in investigation – HELD: In the instant case, irregularities-committed in the investigation by the earlier I.Os. have too little relevance on the merits of the case and the material of earlier investigations has rightly been not relied upon by the subsequent Investigating Officer. Obligation on trial court in case of defective investigation – HELD: Investigation is not the solitary area for judicial scrutiny in a criminal trial – Where there has been negligence or omissions etc. on the part of the investigating agency, which resulted in defective investigation, there is a legal obligation on the court to examine the prosecution evidence de hors such lapses and examine whether the lapses had affected the prosecution case. Test identification parade – HELD: Is a part of investigation and provides for an assurance that the investigation is proceeding in the right direction and it enables the witnesses to satisfy themselves that the accused whom they suspect is really one who was seen by them at the time of commission of offence – Holding the test identification parade is not substantive piece of evidence, yet it may be used for the purpose of corroboration that a person brought before the court is the real person involved in the commission of the crime – However, the test identification parade, even if held, cannot be considered in all the cases as trustworthy evidence on which the conviction of the accused can be sustained – It is a rule of prudence which is required to be followed in cases where the accused is not known to the witness or the complainant – Evidence Act, 1872 – s.9 – Test identification parade. Code of Criminal Procedure, 1973 s.195 – Cognizance by court, of offence punishable u/s 188 IPC – HELD: The provisions of s.195 are mandatory – Non-compliance of it would vitiate the prosecution and all other consequential orders – Law does not permit taking cognizance of any offence punishable u/s 188 IPC unless there is a complaint in writing by the competent public servant – In the absence of such a complaint, the trial and conviction will be void ab initio being without jurisdiction – However, non-compliance of s.195 would have no bearing on the prosecution case so far charges for other offences are concerned – Penal Code, 1860 – s.188. Criminal Trial: Clubbing of two Criminal cases into one trial – HELD: In the instant case, second incident was a fall out of the first occurrence – Merely because two separate complaints had been lodged, it would not mean that they could not be clubbed together and one charge-sheet could not be filed – Practice and Procedure. Criminal Law: Crime and society – Crimes occurring in presence of public and police – Social sensitivity – Duty of police and protectors of law – A University bus full of girl students set ablaze by some of the agitators – Three young girls charred to death while several others sustained burn injuries – HELD: Even if the common man fails to respond to the call of his conscience, the police should not have remained inactive – The administration did not bother to find out why the police did not intervene and assist in the rescue, much less reprimand them for failing in their duty. During the “Rasta Roko Agitation” staged against conviction of a political leader, a mob of 100-150 of her supporters, while the prohibition order u/s 60 of the Indian Police Act, 1861 was in force, damaged a town bus and set ablaze a University bus with 47 girl-students, with the result that 3 students burnt alive and 28 others received burn injuries and several others sustained serious injuries. Two FIRs were lodged as regards the occurrence involving both the buses. In all, 30 accused were convicted u/ss 188, 341 IPC, and ss. 3 and 4 of the TNP (PDL) Act read with s. 149 IPC. They were also convicted u/s 147 IPC except A-24, who was convicted u/s 148 IPC. Besides, A-2 to A-4 were also found guilty of setting the University bus ablaze and burning three girl-students to death and causing burn injuries and other serious injuries to 28 others for which A-2 and A-3 were convicted u/s 302 IPC each for three counts and A-4 u/s 302 read with s. 114 IPC for three counts; A-2 and A-3 were further convicted u/s 307 IPC each for 46 counts and A-4 u/s 307 read with s.114 IPC for 46 counts; A-2 to A-4 were sentenced to death. The sentences imposed on the other accused persons were directed to run consecutively which extended to 7 years odd. The High Court confirmed the death sentences of A-2 to A-4, but modified the sentences of the other accused to run concurrently. In the appeals filed by the convicts, it was contended for them that in the absence of any complaint by the competent officer whose prohibition order was stated to have been violated, the charge u/s 188 IPC could not have been framed; that the Criminal cases registered in respect of two separate FIRs could not have been clubbed into one single trial; that there were contradictions in the statements of alleged eye-witnesses; and, as such, the case did not warrant any trial. =Disposing of the appeals, the Court HELD: 1.1 From the record, involvement of A-2 to A-4 in the incident of setting fire to the University bus has been substantiated. From the evidence of PW-99, PW-4, PW-5, PW-1 and PW-2, PW-8, PW-11, PW-12, PW-14, it has been established that A-2 to A-4 came on motorcycle, A-1 and A-3 sprinkled petrol inside the bus and set the bus ablaze. PW-99 has spoken about A-2 to A-4. He is an advocate and belongs to the locality. He has deposed that A-2 had set fire to the Route No.7-B town bus. He has also corroborated the evidence of PW-97 that while the bus was in flames, some persons tried to douse the fire but they were prevented by A-23. A-2 remained present in the earlier occurrence as well as the subsequent occurrence. It is significant to note that A-4 had kept the engine of the motor cycle running only to escape from the scene of occurrence along with A-2 and A-3 after the occurrence. The said fact would also indicate the mind of the accused to commit the offence and to flee from the scene of occurrence to avoid the clutches of law. But for PWs 1, 2, 4 and 5 and some other students who became alert immediately after the bus was set on fire, the consequence could have been disastrous and more deaths could have occurred. [para 47, 51-56] 1.2 So far as the issue of damage to the buses and the main incident of setting the University bus on fire is concerned, both the courts have proceeded on the finding, after appreciating the entire evidence on record, that there was no common object between A-2, A-3 and A-4 on the one hand, and the other accused, on the other, regarding murder of the students and burning of the bus. Therefore, all of them had been convicted under different sections. However, the High Court directed the sentence to run concurrently so far as A-1, A-5 to A-14, A-16 to A-21, A-23 to A-26 and A-28 to A-31 are concerned. There has been sufficient material to show their participation in the “Rasto Roko Andolan” and indulging in the incident of damaging the local route bus. Both the courts below have recorded the concurrent findings of fact in this regard and there is no reason to interfere with the same. [para 46] [302-C-E] 1.3 As regards the doubts raised about the arrest of A-4, and his confessional statement, there has been no cross-examination independently on his behalf on this issue. Even in cross-examination on behalf of other accused nothing has been elicited qua irregularity or improbability of the arrest of A-4. Therefore, there is no reason to disbelieve the arrest of A- 4 as shown by the I.O. [para 45] [301-E-H; 302-A-B] 1.4 A large number of injured students were examined in the court. They supported the prosecution case but did not identify any person either in the test identification parade or in the court. Their seating position in the bus had been such that they could not see as who had sprinkled the petrol in the bus. Besides, the photographer (PW-51) photographed and videographed the spot of the agitation. He also photographed the burning bus. He watched the video prepared by him in the court and identified the same. [para 62] [308-F-G] 2.1 If there are some omissions, contradictions and discrepancies, the entire evidence cannot be disregarded. After exercising care and caution and sifting through the evidence to separate truth from untruth, exaggeration and improvements, the court comes to a conclusion as to whether the residuary evidence is sufficient to convict the accused. Thus, an undue importance should not be attached to omissions, contradictions and discrepancies which do not go to the heart of the matter and shake the basic version of the prosecution witness. As the mental abilities of a human being cannot be expected to be attuned to absorb all the details of the incident, minor discrepancies are bound to occur in the statements of witnesses. The omissions and improvements in the evidence of the PWs pointed out in the instant casse are found to be very trivial in nature. [para 70-71] [311-F-G; 312-A-B] Sohrab & Anr. v. The State of M.P., 1973 ( 1 ) SCR 472=AIR 1972 SC 2020; State of U.P. v. M.K. Anthony, AIR 1985 SC 48; Bharwada Bhogini Bhai Hirji Bhai v. State of Gujarat, 1983 ( 3 ) SCR 280= AIR 1983 SC 753; State of Rajasthan v. Om Prakash 2007 (7) SCR1000= AIR 2007 SC 2257; Prithu @ Prithi Chand & Anr. v. State of Himachal Pradesh, 2009 (2 ) SCR765 = (2009) 11 SCC 588; State of U.P. v. Santosh Kumar & Ors., 2009 (14 ) SCR 106 = (2009) 9 SCC 626; and State v. Saravanan & Anr., AIR 2009 SC 151 – relied on. 2.2 The evidence of a hostile witness cannot be discarded as a whole, and relevant parts thereof which are admissible in law, can be used by the prosecution or the defence. In the instant case, some of the material witnesses i.e. PW-86; and PW-51 turned hostile. Their evidence has been taken into consideration by the courts below strictly in accordance with law. [para 70] [311-D-E] Bhagwan Singh v. The State of Haryana, 1976 ( 2 ) SCR 921= AIR 1976 SC 202; Rabindra Kumar Dey v. State of Orissa, 1977 ( 1 ) SCR 439= AIR 1977 SC 170; Syad Akbar v. State of Karnataka, 1980 ( 1 ) SCR 95= AIR 1979 SC 1848; and Khujji @ Surendra Tiwari v. State of Madhya Pradesh, 1991 ( 3 ) SCR 1= AIR 1991 SC 1853; State of U.P. v. Ramesh Prasad Misra & Anr., 1996 ( 4 ) Suppl. SCR 631=AIR 1996 SC 2766; Balu Sonba Shinde v. State of Maharashtra, 2002 ( 2 ) Suppl. SCR 135= (2002) 7 SCC 543; Gagan Kanojia & Anr. v. State of Punjab, (2006) 13 SCC 516; Radha Mohan Singh @ Lal Saheb & Ors. v. State of U.P., 2006 (1 ) SCR519 = AIR 2006 SC 951; Sarvesh Naraia Shukla v. Daroga Singh & Ors., 2007 (11 ) SCR300 =AIR 2008 SC 320; and Subbu Singh v. State, 2009 (7 ) SCR383 = (2009) 6 SCC 462 – relied on 2.3 As regards exhibiting and reading of an extra-judicial confessional statement, only the admissible part of it can be exhibited. The statement as a whole, if exhibited and relied upon by the prosecution, leads to the possibility of the court getting prejudiced against the accused. In the instant case, the confessional statement of A-4 had been exhibited in the court in its full text. It was neither required nor warranted nor was permissible. However, in view of the fact that there had been other sufficient material on record to show his involvement in the crime, the full exhibition of the statement had not prejudiced the case against him. [para 67-68] [310-C-E] Aloke Nath Dutta & Ors. v. State of West Bengal, 2006 (10 ) Suppl. SCR 662 = (2007) 12 SCC 230; State of Maharashtra v. Damu Gopinath Shinde & Ors., 2000 ( 3 ) SCR 880=AIR 2000 SC 1691; and Anter Singh v. State of Rajasthan, AIR 2004 SC 2865 – relied on. Pulukuri Kotayya v. King-Emperor, AIR 1947 PC 67 – referred to 3.1 The investigation is not the solitary area for judicial scrutiny in a criminal trial. The conclusion of the trial in the case cannot be allowed to depend solely on the probity of investigation. The defect in the investigation by itself cannot be a ground for acquittal. Where there has been negligence on the part of the investigating agency or omissions, etc. which resulted in defective investigation, there is a legal obligation on the court to examine the prosecution evidence de hors such lapses, carefully, to find out whether the evidence is reliable or not and to what extent the lapses affected the object of finding out the truth. It is to be examined as to whether there is any lapse by the I.O. and whether due to such lapse any benefit should be given to the accused. [para 43-44] [310-A- B; 301-F-H] Chandra Kanth Lakshmi v. State of Maharashtra, AIR 1974 SC 220; Karnel Singh v. State of Madhya Pradesh, 1995 (2) Suppl. SCR629= (1995) 5 SCC 518; Ram Bihari Yadav v. State of Bihar, 1998 ( 2 ) SCR 1097= AIR 1998 SC 1850; Paras Yadav v. State of Bihar, 1999 ( 1 ) SCR 55= AIR 1999 SC 644; State of Karnataka v. K. Yarappa Reddy, 1999 ( 3 ) Suppl. SCR 359= AIR 2000 SC 185; Amar Singh v. Balwinder Singh 2003 ( 1 ) SCR 754= AIR 2003 SC 1164; Allarakha K. Mansuri v. State of Gujarat, 2002 ( 1 ) SCR 1011= AIR 2002 SC 1051; and Ram Bali v. State of U.P., 2004 (1 ) Suppl. SCR195 = AIR 2004 SC 2329 – relied on. 3.2 In the instant case, the occurrence was so ugly and awful that the I.Os. had conducted the investigation under great anxiety, tension and in a charged atmosphere. Therefore, some irregularities were bound to occur. The State authorities ultimately transferred the investigation to the CBCID. Therefore, the irregularities committed in the investigation by the earlier I.Os. have too little relevance on the merits of the case and the material of earlier investigation has rightly been not relied upon by the subsequent Investigating Officer. [para 43-44] [301-A-B; 300-A-H] 3.3 The test identification parade is a part of the investigation and is very useful in a case where the accused are not known before hand to the witnesses. It provides for an assurance that the investigation is proceeding in the right direction and it enables the witnesses to satisfy themselves that the accused whom they suspect is really one who was seen by them at the time of commission of offence. The accused should not be shown to any of the witnesses after arrest; and before holding the test identification parade, he is required to be kept “baparda”. [para 36] [297- H; 298-A-C] 3.4 Holding the test identification parade is not substantive piece of evidence, yet it may be used for the purpose of corroboration that a person brought before the court is the real person involved in the commission of the crime. However, the test identification parade, even if held, cannot be considered in all the cases as trustworthy evidence on which the conviction of the accused can be sustained. It is a rule of prudence which is required to be followed in cases where the accused is not known to the witness or the complainant. [para 32] [296-C-D] State of H.P. v. Lekh Raj 1999 (4) Suppl. SCR286 = AIR 1999 SC 3916 – relied on. Mulla & Anr. v. State of Uttar Pradesh, 2010 (2 ) SCR633 = (2010) 3 SCC 508; Matru @ Girish Chandra v. The State of Uttar Pradesh, 1971 ( 3 ) SCR 914=AIR 1971 SC 1050; and Santokh Singh v. Izhar Hussain & Anr., 1974 ( 1 ) SCR 78= AIR 1973 SC 2190; Lal Singh & Ors v. State of U.P., AIR 2004 SC 299; Suresh Chandra Bahri v. State of Bihar 1994 ( 1 ) Suppl. SCR483= AIR 1994 SC 2420; Malkhan Singh v. State of M.P., 2003 (1) Suppl. SCR443 = AIR 2003 SC 2669; Ankush Maruti Shinde & Ors. v. State of Maharashtra, 2009 (7 ) SCR182 = (2009) 6 SCC 667; and Jarnail Singh & Ors. v. State of Punjab, 2009 (13 ) SCR774 = (2009) 9 SCC 719; Shaikh Umar Ahmed Shaikh & Anr. v. State of Maharashtra, 1998 ( 2 ) SCR1209= AIR 1998 SC 1922; Lalli @ Jagdeep Singh v. State of Rajasthan, (2003) 12 SCC 666; Dastagir Sab & Anr. v. State of Karnataka, 2004 (1 ) SCR952 = (2004) 3 SCC 106; Maya Kaur Baldevsingh Sardar & Anr. v. State of Maharashtra, 2007 (10 ) SCR752 = (2007) 12 SCC 654; and Aslam @ Deewan v. State of Rajasthan, 2008 (13 ) SCR1010= (2008) 9 SCC 227; Yuvaraj Ambar Mohite v. State of Maharashtra, 2006 (7) Suppl. SCR677 = (2006) 12 SCC 512; D. Gopalakrishnan v. Sadanand Naik & Ors., 2004 (5) Suppl. SCR520 =AIR 2004 SC 4965; Kartar Singh v. State of Punjab 1994 ( 2 ) SCR 375=, (1994) 3 SCC 569; Umar Abdul Sakoor Sorathia v. Intelligence Officer, Narcotic Control Bureau, 1999 ( 1 ) Suppl. SCR113=AIR 1999 SC 2562 – referred to. 3.5 In the instant case, it is evident that all the accused for whom test identification parades were conducted were identified by some of the witnesses in the jail. They were also identified by some of the eye witnesses/injured witnesses in the court. Both the courts below came to the conclusion that identification of A-2 to A-4 by the witnesses, if examined in conjunction with the evidence of the Judicial Magistrate, PW-89 and his reports, particularly, Exh. P.137 and P.142, leaves no room for doubt regarding the involvement of A-2 to A-4 in the crime. There is no cogent reason to take a contrary view. Not supporting of the prosecution case by PW.86 would not tilt the balance of the case in favour of the appellants. [para 39 and 42] [298-F-G; 299-F-G] 4.1 The provisions of s.195 Cr.PC are mandatory. Non-compliance of it would vitiate the prosecution and all other consequential orders. The law does not permit taking cognizance of any offence punishable u/s 188 IPC unless there is a complaint by the competent public servant whose lawful order has not been complied with. The complaint must be in writing. The court cannot assume cognizance of the case without such complaint. In the absence of such a complaint, the trial and conviction will be void ab initio being without jurisdiction. In the instant case, no such complaint had ever been filed. Therefore, it was not permissible for the trial Court to frame a charge u/s 188 IPC. [para 25 and 27] [293-C-D; F-G] M.S. Ahlawat v. State of Haryana & Anr., 1999 (4) Suppl. SCR160=AIR 2000 SC 168; Sachida Nand Singh & Anr. v. State of Bihar & Anr. 1998 ( 1 ) SCR 492= (1998) 2 SCC 493; and Daulat Ram v. State of Punjab 1962 Suppl. SCR 812= AIR 1962 SC 1206 – relied on. Govind Mehta v. The State of Bihar1971 Suppl. SCR777= AIR 1971 SC 1708; Patel Laljibhai Somabhai v. The State of Gujarat 1971 Suppl. SCR834=AIR 1971 SC 1935; Surjit Singh & Ors. v. Balbir Singh, 1996 ( 3 ) SCR 70= (1996) 3 SCC 533; State of Punjab v. Raj Singh & Anr. 1998 (1) SCR223= (1998) 2 SCC 391; K. Vengadachalam v. K.C. Palanisamy & Ors. (2005) 7 SCC 352; and Iqbal Singh Marwah & Anr. v. Meenakshi Marwah & Anr. 2005 (2) SCR 708 = AIR 2005 SC 2119; Basir-ul-Haq & Ors. v. The State of West Bengal, 1953 SCR836= AIR 1953 SC 293; and Durgacharan Naik & Ors v. State of Orissa, 1966 SCR636= AIR 1966 SC 1775 – referred to. 4.2 However, it cannot be said that absence of a complaint u/s 195 Cr.PC falsifies the genesis of the prosecution case and is fatal to the entire case. In the instant case, there is ample evidence on record to show that there was a prohibitory order, which had been issued by the competent officer one day before; it had been given due publicity and had been brought to the notice of the public at large; it has been violated as there is no denial even by the accused persons that there was no `Rasta Roko Andolan’. The agitation which initially started peacefully, turned ugly and violent when the public transport vehicles were subjected to attack and damage. In such an eventuality, in case the charges u/s 188 IPC are quashed, it would by no means have any bearing on the case of the prosecution, so far as the charges for other offences are concerned. [para 27] [293-G-H; 394-A-C] 5. As regards clubbing of two crimes bearing Nos. 188 and 190 of 2000 together, keeping in view the totality of the circumstances and the sequence in which the two incidents occurred and taking into consideration the evidence of drivers and conductors/cleaners of the vehicles involved in the first incident and the evidence PW-87, the second occurrence was nothing but a fall out of the first one. The damage caused to the public transport vehicles and the consequential burning of the University bus remained part of one and the same incident. Merely because two separate complaints had been lodged, did not mean that they could not be clubbed together and one charge sheet could not be filed. [para 28] [294-D-F] T.T. Antony v. State of Kerala & Ors. 2001 ( 3 ) SCR 942= (2001) 6 SCC 181 – relied on. 6.1 So far as sentencing is concerned, criminal law requires strict adherence to the rule of proportionality in providing punishment according to the culpability of each kind of criminal conduct keeping in mind the effect of not awarding just punishment on the society. [para 75] State of Punjab v. Rakesh Kumar, 2008 (12 ) SCR929 = AIR 2009 SC 391; and Sahdev v. Jaibar @ Jai Dev & Ors., 2009 (3 ) SCR722 =(2009) 11 SCC 798; Bantu v. State of U.P., 2008 (11) SCR184 = (2008) 11 SCC 113, Sevaka Perumal v. State of T.N. 1991 ( 2 ) SCR 711= AIR 1991 SC 1463 – relied on. 6.2 Life imprisonment is the rule and death penalty an exception. The “rarest of the rare case” comes when a convict would be a menace and threat to the harmonious and peaceful co- existence of the society. Where an accused does not act on any spur-of-the-moment provocation and he indulged himself in a deliberately planned crime and meticulously executed it, the death sentence may be the most appropriate punishment for such a ghastly crime. Therefore, the court must satisfy itself that death penalty would be the only punishment which can be meted out to a convict. It has to be considered whether any other punishment would be completely inadequate and what would be the mitigating and aggravating circumstances in the case. Murder is always foul. However, the degree of brutality, depravity, diabolic nature and the circumstances under which murders take place differ in each case. [para 75-76] [315-E-H; 316-A] Bachan Singh v. State of Punjab, AIR 1980 SC 898; Machhi Singh & Ors. v. State of Punjab, 1983 ( 3 ) SCR 413=AIR 1983 SC 957; Devender Pal Singh v. State of NCT of Delhi, 2002 ( 2 ) SCR 767=AIR 2002 SC 1661; Atbir v. Govt. of N.C.T. of Delhi, JT 2010 (8) SC 372; Mahesh v. State of M.P., 1987 ( 2 ) SCR 710= AIR 1987 SC 1346 – relied on. 6.3 In the instant case, the girl-students of the University, while on tour had been the victims of a heinous crime. A demonstration by the appellants which had started peacefully, took an ugly turn when the appellants started damaging public transport vehicles. Damaging the public transport vehicles did not satisfy them and they became the law unto themselves. Some of the appellants had evil designs to cause damage to a greater extent so that people may learn a “lesson”. In order to succeed in their mission, A-2, A-3 and A-4 went to the extent of sprinkling petrol in a bus full of girl students and setting it on fire with the students still inside the bus. They were fully aware that the girls might not be able to escape, when they set the bus on fire. As it happened, some of the girls did not escape the burning bus. No provocation of any kind had been offered by any of the girls or by any person whatsoever. A-2, A-3 and A-4 did not pay any heed to the pleas made by PW1 and PW2, the teachers, to spare the girls. They caused the death of three innocent young girls and burn injuries to another twenty. There can be absolutely no justification for the commission of such a brutal offence. This shows the highest degree of depravity and brutality on the part of A-2, A-3 and A-4. [para 77] [316-C-H; 317-A-B] 6.4 The aggravating circumstances in the case of A-2, A-3 and A-4 are that this offence had been committed after previous planning and with extreme brutality. These murders involved exceptional depravity on the part of A-2, A-3 and A-4. These were the murders of helpless, innocent, unarmed, young girl students in a totally unprovoked situation. No mitigating circumstances could be pointed out to impose a lesser sentence on them. Their activities were not only barbaric but inhuman to the highest degree. Thus, the manner of the commission of the offence in the present case is extremely brutal, diabolical, grotesque and cruel. It is shocking to the collective conscience of society. There is no cogent reason to interfere with the punishment of death sentence awarded to A-2, A-3 and A-4 by the courts below and the same is confirmed. [para 77] [317-C-F] 6.5 So far as the other appellants are concerned, the maximum sentence to be served by them as per the judgment of the High Court is two years. Most of these appellants have already served more than 14 months of their sentence and they are on bail. The incident occurred on 2.2.2000, so more than ten and a half years have already elapsed since the incident. These appellants have already suffered a lot. Their sentences are reduced to the period undergone. [para 77] [317-G] 7. The crime occurred right in the middle of a busy city. Innocent girls trapped in a burning bus were shouting for help and only the male students from their University came to their rescue and succeeded in saving some of them. There were large number of people including the shopkeepers, media persons and on-duty police personnel, present at the place of the “Rasta Roko Andolan”, which was very close to the place of the occurrence of the crime, and none of them considered it proper to help in the rescue of the victims. Even if the common man fails to respond to the call of his conscience, the police should not have remained inactive. But the police stood there and witnessed such a heinous crime being committed and allowed the burning of the bus and roasting of the innocent children. The administration did not bother to find out why the police did not intervene and assist in the rescue of the girl students, much less reprimand them for failing in their duty. If the common citizens and public officials present at the scene of the crime had done their duty, the death of three innocent young girls could have been prevented. [para 78] [318-A-D] Case Law Reference: 1971 Suppl. SCR777 referred to para 20 1971 Suppl. SCR834 referred to para 20 1996 (3) SCR70 referred to para 20 1998 (1) SCR223 referred to para 20 2005) 7 SCC 352 referred to para 20 2005 (2) SCR708 referred to para 20 1953 SCR836 referred to para 21 1966 SCR636 referred to para 21 1999 (4) Suppl. SCR160 relied on para 22 1998 ( 1 ) SCR 492 relied on para 23 1962 Suppl. SCR 812 relied on para 24 2001 ( 3 ) SCR 942 relied on para 28 AIR 2004 SC 299 referred to para 29 AIR 1994 SC 2420 referred to para 30 2003 (1 ) Suppl. SCR443 referred to para 30 2009 (7 ) SCR182 referred to para 30 2009 (13 ) SCR774 referred to para 30 2004 (1 ) SCR952 referred to para 30 (2003) 12 SCC 666 referred to para 30 1998 ( 2 ) SCR1209 referred to para 30 2007 (10 ) SCR752 referred to para 30 2008 (13 ) SCR1010 referred to para 30 2006 (7 ) Suppl. SCR677 referred to para 31 2004 (5 ) Suppl. SCR520 referred to para 31 1999 (4 ) Suppl. SCR286 relied on para 32 2010 (2 ) SCR633 referred to para 33 1971 ( 3 ) SCR 914 referred to para 33 1974 ( 1 ) SCR 78 referred to para 33 1994 ( 2 ) SCR 375 referred to para 34 1994 ( 1 ) Suppl. SCR 483 referred to para 34 1999 ( 1 ) Suppl. SCR 113 referred to para 35 AIR 1974 SC 220 relied on para 44 1995 ( 2 ) Suppl. SCR 629 relied on para 44 1998 ( 2 ) SCR1097 relied on para 44 1999 ( 1 ) SCR 55 relied on para 44 1999 ( 3 ) Suppl. SCR 359 relied on para 44 2003 ( 1 ) SCR 754 relied on para 44 2002 ( 1 ) SCR1011 relied on para 44 2004 (1 ) Suppl. SCR195 relied on para 44 2006 (10 ) Suppl. SCR662 relied on para 65 2000 ( 3 ) SCR 880 relied on para 66 AIR 2004 SC 2865 relied on para 66 AIR 1947 PC 67 referred to para 66 1976 ( 2 ) SCR 921 relied on para 69 1977 ( 1 ) SCR 439 relied on para 69 1980 ( 1 ) SCR 95 relied on para 69 1991 ( 3 ) SCR 1 relied on para 69 1996 ( 4 ) Suppl. SCR 631 relied on para 70 2002 ( 2 ) Suppl. SCR 135 relied on para 70 (2006) 13 SCC 516 relied on para 70 2006 (1 ) SCR519 relied on para 70 2007 (11 ) SCR300 relied on para 70 2009 (7 ) SCR383 relied on para 70 1973 ( 1 ) SCR 472 relied on para 71 AIR 1985 SC 48 relied on para 71 1983 ( 3 ) SCR 280 relied on para 71 2007 (7 ) SCR1000 relied on para 71 (2009) 11 SCC 588 relied on para 71 2009 (14 ) SCR106 relied on para 71 2009 (2 ) SCR765 relied on para 71 AIR 1980 SC 898 relied on para 72 1983 ( 3 ) SCR 413 relied on para 73 2002 ( 2 ) SCR 767 relied on para 74 JT 2010 (8) SC 372 relied on para 74 1987 ( 2 ) SCR 710 relied on para 75 2008 (12 ) SCR929 relied on para 75 2009 (3 ) SCR722 relied on para 75 2008 (11 ) SCR184 relied on para 75 1991 ( 2 ) SCR 711 relied on para 75 CRIMINAL APPELLATE JURISDICTION : Criminal Appeal Nos. 127-130 of 2008. From the Judgment & Order dated 06.12.2007 of the High Court of Madras Death Sentence Referred Trial No. 1 of 2007 with Criminal Appeal Nos. 226, 266, & 267 of 2007. With Criminal Appeal No. 1632-1634 of 2010. Sushil Kumar, P.N. Prakash, P.H. Manoj Pandian, Subramonium Prasad, Shyam D. Nandan, Rajat Khattry, Gurukrishnakumar, Aditya Kumar, Anmol Thakral for the Appellants. Altaf Ahmed, R. Shunmugasundaram, Srinivasan, Promila, S. Thananjayan, R. Nedumaran for the Respondent.
REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NOS. 127-130 OF 2008 C. Muniappan & Ors. … Appellants Vs. State of Tamil Nadu …Respondents WITH CRIMINAL APPEAL NOS.1632-1634 OF 2010 (Arising out of SLP(Crl.) Nos. 1482-1484 of 2008) D.K. Rajendran & Ors. etc.etc. …Appellants Vs. State of Tamil Nadu ….Respondent JUDGMENT … Continue reading
MESNE PROFITS =The Commissioner in his report under the heading observations has mentioned that most of the witnesses felt sorry for the plaintiff for receiving such low rent of Rs.36,000/-. After completion of the examination, while leaving P.W.2 informed them that he got it done another registered lease deed for Rs.65/- per sq. ft which is 100 mts away from A.2 towards suit schedule property. After completion of the examination of P.W.3 informed them that the existing market value for sq. ft is Rs.60/- and h has given for cheaper rate as the present rates are sky rocketed. After completion of the examination of P.W.4 he has requested the counsel for the defendant not to trouble the plaintiff by paying meager rent and requested him to pay the existing market value. The P.W.7 after completion of the examination while leaving the premises expressed that he is lucky enough as the present existing market value per sq. ft is on an average of Rs.45/-. Therefore, the said observations are unwarranted to be recorded by the Commissioner because whenever he wanted to record he ought to have been recorded in the evidence of the witnesses but not out of the record. The learned Commissioner has not followed proper procedure for arriving at the mesne profits. Thus, the said report of the learned Commissioner cannot be taken as basis for deciding the mesne profits. With regard to the quantum of mesne profits granted by the lower court, the lower court has granted mesne profits@ Rs.30/- per sq. feet as the plaintiff has claimed the same in the plaint. The claim made by the plaintiff in the plaint is not a basis for fixing the mesne profits. The court has to fix the mesne profits basing on the evidence and material placed before it for ascertaining the same. The lower court has observed that the Commissioner has arrived the mesne profits @ Rs.46.06 ps per sq. feet. The evidence adduced by the petitioners and documents relied upon by them would prove that the property situated in and around the suit schedule property fetch the rents more than Rs.60/- per sq. feet since the petitioners claiming Rs.30/- per sq. yard only in their plaint which was filed in the year 2005 which is not far back, the court below considered that the petitioners cannot claim more than what they pleaded in their original plaint. He further observed that the evidence of R.W.1 would show that he is getting Rs.27.50 ps per sq. yards which is situated near by the schedule property. Therefore, he accepted the evidence of R.W.1 to show that the property is situated near the suit schedule property would fetch more than Rs.30/- per sq. feet and thereby fixed the mesne profits for the suit schedule property at Rs.30/- per sq. feet. R.W.1 is not the owner of the property and according to him he has leased out the premises bearing No.483, Road No.36, Jubilee Hills to one G. M. Singh and the said property belongs to his sister K. Radha and he leased out the said premises of 2000 sq. yards for rent @ Rs.55,000/- per month. But the said R.W.1 has not produced any documents to show about the rent that he has been receiving by him for the said premises. Therefore, relying upon the evidence of R.W.1 by the lower court for arriving at the prevailing rent is without reliable evidence. Since the Commissioner has not properly enquired into the matter and the lower court has not come to the conclusion with regard to the mesne profits basing on the material placed before it, we hold it is just and proper to set the order of the lower court and remit back for making fresh enquiry with regard to the mesne profits. Hence, the order of the lower court is not just, legal and valid. In the result, both the appeals are allowed and the matter is remitted the matter back to the lower court for fresh disposal in accordance with law we made it clear that both parties are at liberty to adduce evidence on their behalf. In the circumstances, both the parties have to bear their own costs.
HON’BLE SRI JUSTICE B. PRAKASH RAO & HON’BLE SRI JUSTICE P. DURGA PRASAD C.C.C.A Nos.26 & 79 of 2008 Date: 28.02.2011 Between: M. Raja Gopala Rao and another ….Appellants. And: Sri K. Vinay Reddy …..Respondent. C.C.C.A No.79 of 2008 Between: Sri K. Vinay Reddy ….Appellant. And: M. Raja Gopala Rao and another …..Respondents. HON’BLE … Continue reading
Hindu law : Hindu Marriage Act, 1955 : Section 16. Void marriage-Children-Legitimacy of-Second marriage-Contract of-During subsistence of first marriage-Prior to commencement of Act-Void under S. 5 of Madras Marumakkattayam Act, 1932 then in force-Held : Children born of void second marriage entitled to inherit share in the properties of their parents by operation of amended S. 16. Section 16-Amendment-Legitimacy-Nature of-Pre-amended S. 16-Classified illegitimate children into two groups-Those born of void marriages contracted before Act-And those born of void marriages contracted after Act came into force-Held : Section 16 violative of Article 14 of the Constitution. Section 16-Amendment of-Position thereafter-Amendment removed the mischief and also delinked S. 11 from S. 16-Hence, amended S. 16 was constitutionally valid-It enacted legal fiction whereby illegitimate children were deemed legitimate-Thereby entitling them to succeed to properties of their parents. Madras Marumakkattayam Act, 1932 : Section 5-Polygamy-Void under-Act repealed by S. 7(2) of Kerala Joint Family System (Abolition) Act, 1975-Effect of–Contract of second marriage during lifetime of first wife-Prohibition under S. 5 would operate-Such second mamage would not be affected by the repeal by virtue of S. 4 of Kerala Interpretation and General Clauses Act, 1925-Kerala Joint Hindu Family System (Abolition) Act, 1975, S. 7(2)-Kerala Interpretation and General Clauses Act, 1925, S. 4. Constitution of India, 1950 : Article 14 : Statute-Constitutionality of-Presumption in favour of-Burden of proof is on person challenging constitutionality-To show arbitrary discrimination between persons similarly circumstanced-Presumption-Displacing of-By showing discrimination was apparent and manifest-Duty of Court to look to the statute as a whole to see if classification was valid having nexus with object sought to be achieved. Interpretation of Statutes : Interpretation-Subsidiary rules of-Legal fiction-Purpose of-Parties between whom it was to operate-To be ascertained by Court to give full effect to legislative intent and to carry the purpose to its logical end. Mischief Rule–Language having more than one meaning-Applicability of-Rule in Heydon’s case-When and how to be invoked-Non-obstante clause-Operation and interpretation of. RN contracted a second marriage with Appellant No. 1 during the lifetime of his first wife who was the mother of Respondents 1 to 9, in contravention of the prohibition of such a second marriage under Section 5 of Madras Marumakkattayam Act, 1932 which was then in force. The question before this Court was whether Appellants 2 to 6, who were the children born of the second marriage, would inherit any share in the properties left behind by RN after his death. =Allowing the appeal, this Court HELD : 1.1. Section 7(2) of Kerala Joint Hindu Family System (Abolition) Act, 1975 by which the Madras Marumakkattayam Act, 1932 was repealed does not indicate any intention contrary to the provisions contained in Kerala Interpretation and General Clause Act, 1925 which, will apply with full vigour on the principle that whenever there is a repeal of any enactment, the consequences indicated in Section 4 would follow, unless there was any saving clause in the repealing enactment or any other intention was expressed therein. In the case of a simple repeal, there is hardly any room for the expression of a contrary view. Repeal in the instant case is a case of repeal simplicitor. Hence, in view of section 4(b) of Kerala Interpretation and General Clauses Act, the previous operation of Madras Act will not be affected by the repeal nor will the repeal affect anything July done or suffered thereunder. So also, a liability incurred under that Act will remain unaffected and will not be obliterated by the repeal as indicated in Section 4(c). RN had contracted a second marriage, in the lifetime of his first wife, when Madras Act was in force, which prohibited a second marriage and, therefore, the consequences indicated in the Act that such a marriage would be void would not be affected nor will the previous operation of the Act be affected by the repeal of that Act. The repeal does not mean that Madras Act never existed on the Statute Book nor will the repeal have the effect of validating RN’s second marriage, if it was already a void marriage under that Act. [17-H, 18-A-D] Balakrishna Menon v. Asst. Controller of Estate. Duty, AIR (1971) SC 2390; Venugopala Ravi Verma v. Union of India, AIR (1969) SC 1094; Achuttan Nair v. C. Amma, AIR (1966) SC 411 and Padmavathy Amma v. Amnuni Panicker, AIR (1995) SC 2154, relied on. Bhaurao v. State of Maharashtra, AIR (1965) SC 1564 and Kochunni v. Kuttammni, AIR (1948) PC 47, referred to. 1.2. Since the Rule of Legitimacy under Section 16 of Hindu Marriage Act, 1955 (HMA) was made dependent upon the marriage (void or voidable) being annulled by a decree of annulment, the children born of such marriage, would continue to be illegitimate if the decree of annulment was not passed, which, incidentally, would always be the case if the parties did not approach the Court. The other result was that the illegitimate children came to be divided in two groups; those born of marriage held prior to the Act and those born of marriage after the Act. There was no distinction between these two groups of illegitimate children, but they came to suffer hostile legislative discrimination on account of the language employed therein. Indeed, language is an imperfect instrument for the expression of human thought. [27-E-G] 1.3. The object of Section 16. HMA was to protect legitimacy of children born of void or voidable marriages. In leaving out one group of illegitimate children from” being treated as legitimate, there did not appear to be any nexus between the object sought to be achieved by Section 16, HMA and the classification made in respect of illegitimate children similarly situate or circumstanced. Section 16, HMA was earlier linked with Sections 11 and 12, HMA. On account of the language employed in unamended Section 16 and its linkage with Sections 11 and 12, the provisions had the effect of dividing and classifying the illegitimate children into two groups without there being any nexus in the statutory provisions and the object sought to be achieved thereby. [27-H, 32-F-G] State v. Narsu Appa Mali, ILR (1951) Bombay 775; Srinivasa Iyer v. Saraswathi Ammal, ILR (1953) Madras 78 and G. Sambireddy v. G. Jayamina, AIR (1972) A.P. 156 referred to. 1.4. Legitimacy is a matter of status. Illegitimate children, on the contrary, are children as are not born either in lawful wedlock, or within a competent time after its determination. It is on account of marriage, valid or void, that children are classified as legitimate or illegitimate. That is to say, the social status of children is determined by the act of their parents. If they have entered into a valid marriage, the children are legitimate; but if the parents commit a folly, as a result of which a child is conceived, such child who comes into existence as an innocent human baby is labelled as illegitimate. Realising this situation, Parliament made a law which protected the legitimacy of such innocent children. [26-E, G-H] Ampthill Peerage Case, (1976) All ER 411and Salemi v. Minister for Immigration and Ethnic Affairs, (1977) 14 ALR 1 (7), referred to. “Commentaries on the Hindu Marriage Act, 1955” by K.P. Saksena; “Principles of Hindu Law” by Jogendra Chunder Ghose, 1903 Edn. and “Hindu Law of Marriage Stridhana”, 4th. Edn. (reprinted in India in 1984), referred to. 2.1. Whenever an enactment is attacked on the ground of discrimination, it becomes the duty of the court to look to the legislation as a whole and to find out why class legislation was introduced and what was the nexus between the classification and the object sought to be achieved by it. There is always a presumption that an Act made by the Parliament or the State Legislature is valid; so also there is a strong presumption in favour of the validity of legislative classification. It is for those who challenge the Act as unconstitutional to show and prove beyond all doubts that the legislature arbitrarily discriminated between different persons similarly circumstanced. This presumption, however, can be displaced by showing that the discrimination was so apparent and manifest that any proof was hardly required. Section 16, as originally enacted, fell under this category. To the extent it discriminated between two groups of illegitimate children in the matter of conferment of status of legitimacy, it was violative of Article 14. The vice or the mischief from which unamended Section 16 suffered has been removed or not is the next concern of this Court. [18-G, 30-E-G] 2.2. In order to give full effect to what was intended to be achieved by enacting Section 16, the Parliament intervened and amended Section 16. The words “notwithstanding that a marriage is null and void under Section 11” employed in Section 16(1) indicate undoubtedly the following: (a) Section 16(1) stands delinked from Section 11. (b) Provisions of Section 16(1) which intend to confer legitimacy on children born of void marriages will operate with full vigour in spite of Section 11 which nullifies only those marriages which are held after the enforcement of the Act and in the performance of which Section 5 is contravened. (c) Benefit of legitimacy has been conferred upon the children born either before or after the date on which Section 16(1) was amended. (d) Mischief or the vice which was the basis of unconstitutionality of unamended Section 16 has been effectively removed by amendment. (e) Section 16(1) now stands on its own strength and operates independently of other sections with the result that it is constitutionally valid as it does not discriminate between illegitimate children similarly circumstanced and classifies them as one group for conferment of legitimacy. Section 16, in its present form, is, therefore, not ultra vires the constitution. [33-C-F] K.P. Verghese v. Income-tax Officer, Emakulam and Anr, 131 ITR 597; Bengal Immunity Co. Ltd. v. Slate of Bihar, AIR (1955) SC 661; Goodyear India Ltd. v. State of Haryana, AIR (1990) SC 781; C.I.T., M.P. & Bhopal v. Sodra Devi, AIR (1857) SC 832; Union of India v. G.M. Kokil, [1984] Supp. SCC 196; Chandavarkar Sita Ratna Rao v. Ashalata S. Gumam, [1986] 4 SCC 447 (477); R.S. Ragunath v. State of Kamataka, [1992] 1 SCC 335; Heydon’s case (1584) 3 Co. Rep 7a; Mayfair Property Company, (1898) 2 Ch 28 (CA); Eastman Photographic Materials Company Ltd. v. Comptroller-General of Patents, Designs and Trade-Marks, (1898) AC 571, 576 (HL) and Munsell v. Olins, (1975) 1 All ER 16 (HL) p-29, referred to. T. Ramayammal v. T. Mathummal, AIR (1974) Mad. 321, approved. “Principles of Statutory Interpretation” By G.P. Singh, referred to. 3.1. Section 16 contains a legal fiction. It is by a rule of ‘ficto juris that the legislature has provided that children, though illegitimate, shall, nevertheless, be treated as legitimate notwithstanding that the marriage was void or voidable. [33-H] 3.2. In view of legal fiction contained in Section 16, the illegitimate children, for all practical purposes, including succession to the properties of their parents, have to be treated as legitimate. They cannot, however, succeed to the properties of any other relation on the basis of this rule, which in its operation, is limited to the properties of the parents. [34-E] 3.3. When an Act of Parliament or a State Legislature provides that something shall be deemed to exist of some status shall be deemed to have been acquired, which not have been so acquired or in existence but for the enactment, the Court is bound to ascertain the purpose for which the fiction was created and the parties between whom the fiction was to operation, so that full effect may be given to the intention of the legislature and the purpose may be carried to its logical conclusion. [34- A-B] M/s. J K Cotton Spg. & Wvg. Mills Ltd. v. Union of India, AIR (1988) SC 191, American Home Products Corporation \. Mac Laboratories, [1986] 1 SCC 465 and M. Venugopal v. Divisional Manager, LIC, [1994] 2 SCC 323, relied on. East End Dwellings Co. Ltd. v. Finsbury Borough Council, (1952) AC 109 B, referred to. 4. Appellants 2 to 6 were born prior to the date on which amendments were introduced in Section 16(1), and consequently they would, notwithstanding that the marriage between their parents had taken place at a time when there was a legislative prohibition on the second marriage, to be treated as legitimate, and would, therefore, inherit the properties of their father, RN, under Section 16(3) of the Act. [34-F-G] CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 5473-75 of 1995. =1996 AIR 1963, 1996( 2 )Suppl.SCR 1, 1996( 4 )SCC 76, 1996( 4 )SCALE131 , 1996( 4 )JT 656
PETITIONER: SMT. PARAYANKANDIYAL ERAVATHKANAPRAVAN KALLIANI AMMA & ORS . Vs. RESPONDENT: K. DEVI & ORS. DATE OF JUDGMENT: 26/04/1996 BENCH: AHMAD SAGHIR S. (J) BENCH: AHMAD SAGHIR S. (J) KULDIP SINGH (J) CITATION: 1996 AIR 1963 1996 SCC (4) 76 JT 1996 (4) 656 1996 SCALE (4)131 ACT: HEADNOTE: JUDGMENT: J U D G M … Continue reading
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION=medical negligence = Coming finally to the assessment of the expert committee of AIIMS, we find that on the fall of the patient in the bathroom, it says— “It has been established from the record that the patient had a fall on the day 15 of the treatment, but the details of the fall, injury sustained if any, clinical condition post fall and/or CT scan are not available. There is a mention of altered sensoriumon day 16 which may be a part of Intra Cranial event (which may be a neurological manifestation) or Neutropenic shock because of infection.” 9. We have already noted the observation of the expert committee that in the absence of record of the clinical condition of the patient from 15th afternoon to 16th morning, they were not in a position to comment whether there was medical negligence or not. These observations of the expert committee of AIIMS and the records of treatment clearly show that on 15.12.2000, after deciding not to discharge the patient, respondent/NIMS has committed two serious lapses— a. While the condition of the patient warranted assessment of the effect of fall in the bathroom (whether by CT scan or any other investigation) it was not done. b. In fact there was no further investigation or treatment till the morning of the fateful day 16.12.2000. This is established by absence of record of treatment after 4 PM. Even the oral testimony of OP-3 examined above does not travel beyond 5 PM on 15.12.2000. The total gap from 5 PM on 15.12.2000 and 8 AM on 16.12.2000 has remained completely unexplained. 10. What compounds these two lapses is that the patient was running high temperature. In fact, it was serious enough for the OPs to postpone his discharge fixed for 15.12.2000. Secondly, as per their own evidence, the OPs knew that sudden deterioration in the condition of the patient was a strong possibility. Thirdly, OP-3 knew about high fever and had been telephonically informed about the fall. In our considered view, these lapses amount to deficiency of service, within the meaning of Section 2(1)(g) of the Consumer Protection Act 1986. 11. In view of the above, the appeal is partially allowed. The allegation of deficiency of service is upheld to the extent of the lapses discussed above. A lump sum compensation of Rupees three lakhs is therefore awarded, with interest at 7% from the date of the complaint. The same shall be paid to the complainants by the OPs, jointly and severally, within a period of three months. Failing this, the amount shall carry interest at 12% for the period of delay.
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI FIRST APPEAL NO. 202 OF 2006 (Against the order dated 31/12/2005 in C.D. No.116 of 2001 of the State Commission, Andhra Pradesh) Smt. N. Shree Mani W/o late Sri N. Vinayaka Rao Aged about 42 years, Indian, Occ: Accounts Officers in Telephones N. Purnima, daughter of late No. Vinayaka Rao, Aged about 21 years, Student N. Lakshmi, … Continue reading
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION= delay in transport of container – loss allowed only for ground rent for keeping the containers for the delayed period only, other claims are discarded as they are too remote=It took about a month time for opposite party No. 2 to make arrangement for the transportation of 11th container to ICD Tughlakabad by road as a result of which the delivery of even the 10 containers, which has arrived earlier could not be effected and the entire consignment was delivered to the complainant on 26th May, i.e. after a delay of about one month. 3. According to the complainant, due to the above delay in the delivery of the consignment of the imported Tube Mills, the complainant has suffered monetary loss as under: “That the complainant had suffered the following losses due to the negligence and deficiency in services rendered by the respondent: Letter of Credit charges as well as interest Rs. 3,16,970.00 Ground rent charges paid by the complainant Rs. 5,79,100.00 Amount paid to M/s. Gallium Industries For commissioning the project for delay in Arrival of full consignment. Rs. 15,15,000.00 Material/Tubes imported from Italy Rs. 8,88,724.00 Travelling allowance paid to Sh. R.S. Ponia, Sr. Officer, for his visit to Respondent No. 1 Rs. 18,554.00 _____________ Total Rs. 33,18,348.00 “ ______________
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI ORIGINAL PETITION NO. 225 OF 1999 SKH Metals Limited, Plot No. 2, Maruti Joint Venture Complex, Gurgaon – 122 015 Haryana, India …….. Complainant(s) Vs. M/s. German Express Shipping Agency, 12/13, Hans Bhawan, 1, Bahadur Shah Zafar Marg, New Delhi – 110 002. Raina Continental Ltd., B-29-30, Vishal Tower, Janak Puri District Centre, New Delhi – 110 058 ……. Opposite Party (ies) … Continue reading
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION= when the consumer asked for refund of the amount paid, the state commission ordering to pay balance amount and direct the opposite party to execute the sale deed is wrong one= However, it must be noted that whatever the basis, the order of the State Commission giving the complainant twomonths time to pay and get the site, was well beyond the relief sought by the complainant. Before the State Commission, the case put forth by the respondent/Complainant was that the auction was held on 22.9.1997 but there was no confirmation of the same. He wrote to BDA on 26.5.1998 stating that he had been waiting for over six months. Having got no response, he has made alternative arrangement and was no longer interested in confirmation of the auction sale. He had therefore sought refund of the amount of Rs 17.12. lakhs deposited by him. Receipt of this letter is acknowledged by BDA on the same day. This is reiterated in the complaint petition (and his affidavit evidence) before the State Commission. Accordingly, the relief sought by him was refund with interest. Even as late as 18.8.2003, the respondent/complainant had stated in his written submission before the State Commission— “The only question that requires to be resolved in this complaint is whether the Complainant is entitled to seek refund of the money deposited by him at the time of bidding the auction.” It is therefore, abundantly clear that in the impugned order the State Commission has granted a relief which was never sought by the complainant. 8. The impugned order, passed on 24.9.2004 is unsustainable, on another ground viz. that it amounts to permitting the complainant to purchase the site in 2004 at the market price of 1997. 9. For reasons detailed above, the order of the Karnataka State Consumer Disputes Redressal Commission in Complaint No. 47/1999 is set aside. The matter is remanded back to the State Commission for fresh consideration of the complaint petition and the prayer made therein. The State Commission shall decide the points for determination and adjudicate upon them after going into all aspects of the matter. Parties to the present proceedings shall bear their own costs.
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI FIRST APPEAL NO. 8 OF 2005 (Against the order dated 24.09.2004 in Complaint No.47 of 1999 of the State Commission, Karnataka) Bangalore Development Authority, By its Commissioner, Kumara Park (West) Bangalore– 560 020 Karnataka ……….Appellant Versus Sri Varghese George P. S/o George Jacob, No.13, Jayamahal Extension, Bangalore, Karnataka ………Respondent BEFORE HON’BLE MR. … Continue reading
RTI Act =On September 21, 2007, Mr. Manohar Parrikar, the Leader of Opposition (respondent no.1), made an application to the Public Information Officer (for short “the PIO”) in the Secretariat of the Governor of Goa, asking for a copy of the report sent by the Governor of Goa to the Union Home Minister regarding the political situation in Goa during the period from 24th July 2007 to 14th August 2007. By a letter dated 22nd December 2007, the PIO in the Secretariat of the Governor of Goa declined to furnish the copy and wrote: “I am to inform that these communications are highly sensitive, and secret in nature. It is regretted that the same cannot be supplied in accordance with the exemption allowed under the Right to Information Act, 2005”.?
1 WP 478/2008 abs IN THE HIGH COURT OF BOMBAY AT GOA CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 478 OF 2008 1. Public Information Officer Joint Secretary to the Governor Raj Bhavan, Donapaula, Goa 2. Secretary to Governor First Appellate Authority, Raj Bhavan, Donapaula, Goa .. Petitioners V/s 1. Shri Manohar Parrikar Leader of Opposition, … Continue reading
Orissa Private Medical & Dental Colleges Association, through its Chairman ………….. Appellant =we order that Respondent No. 1 will conduct further counseling for the 624 OJEE-11 qualified candidates in the waiting list to fill up the eight seats, that are still vacant in the Private Medical College/Colleges, which are the members of the appellant Association on or before 24.11.2011, subject to the rules and regulations applicable for admissions. The appellant shall also furnish the list of 2
REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. …………….. OF 2011 (Arising out of SLP (C) No.27690 of 2011) Orissa Private Medical & Dental Colleges Association, through its Chairman ………….. Appellant versus Chairman, Orissa Joint Entrance Examination-2011 & Ors. ……………..Respondents O R D E R H. L. Dattu, J. 1) … Continue reading
advocatemmmohan 