advocatemmmohan
just another law knowledge bank
Bihar
Service Matter – Back Door Posting – Temporarily appointed to the post of constable – show cause notice issued and service was also terminated – single judge dismissed the writ – DB allowed the writ – Apex court held that in the absence of any advertisement or selection process, the appointment of the respondent is not protected and could be validly terminated. Learned single Judge was justified in dismissing the writ petition while the Division Bench erred in interfering with the same. =CIVIL APPEAL NO._7392___2014 (Arising out of SLP (C) No.28971 of 2013) State of Bihar and Ors. … Appellant (s) Versus Chandreshwar Pathak … Respondent (s) = 2014 Aug. Part – http://judis.nic.in/supremecourt/filename=41813
Service Matter – Back Door Posting – Temporarily appointed to the post of constable – show cause notice issued and service was also terminated – single judge dismissed the writ – DB allowed the writ – Apex court held that in the absence of any advertisement or selection process, the appointment of the respondent is not … Continue reading
Land Laws – Bihar Consolidation of Holdings and Prevention of Fragmentation Act, 1956 – ss.3 and 4(c) – Partition suit – Dismissed by civil court – Title appeal – During pendency thereof, notification issued u/s.3 of the 1956 Act – Consequence=Partition suit was decreed in lower court , appeal filed and appeal is abated due to non-bringing of legal heirs- Notification under Bihar consolidation of Holdings and prevention of Fragmentation Act 1956 published – application filed before appellant -In the present case, title appeal was pending when notification was issued u/s.3 of the 1956 Act, whereafter an application u/s.4(c) of the 1956 Act was preferred to the effect that the appeal and the suit had abated by statutory operation of law – It would have been advisable on the part of the appellate court to record a finding that the entire proceeding of the civil suit stood abated – But the appellate court directed abatement because of non-substitution of the legal heirs of one of the respondents – Hence, the suit as well as the appeal abated and resultantly the very commencement of the civil proceeding came to a naught and, therefore, findings recorded in the said proceeding became extinct – High Court did not appreciate the lis in proper perspective and held that reliance on the findings recorded by the civil court by the revisional consolidation authority under the 1956 Act could not be faulted – Said conclusion wholly erroneous – Matter remanded to High Court to decide the matter on merits on basis of the material brought before the Consolidation Authorities.= Paras Nath Rai and others ….. Appellants Versus State of Bihar and Ors. … Respondents = Published in http://judis.nic.in/supremecourt/helddis.aspx
Land Laws – Bihar Consolidation of Holdings and Prevention of Fragmentation Act, 1956 – ss.3 and 4(c) – Partition suit – Dismissed by civil court – Title appeal – During pendency thereof, notification issued u/s.3 of the 1956 Act – Consequence – Held: Once a notification has been published u/s.3, every suit and … Continue reading
power of state govt. in varying salary of constitutional appointee ; Binding nature of judgment = G.L. BATRA Vs. STATE OF HARYANA & ORS. judis.nic.in/supremecourt/filename=40864
State Govt. is not competent to vary the remuneration fixed to the constitutional appointee ; Earlier judgment of same bench is binding on the later bench of same quorum; The earlier judgment may seem to be not correct yet it will have the binding effect on … Continue reading
Whether the State Government had no jurisdiction to authorise the Special Judge to try these cases under FERA. on transfer from Magistrate court by way of Notification ? =Section 62 of FERA made the offence under Section 56 non-cognizable. Besides, Section 61 (1) of FERA stated that ‘it shall be lawful’ for the Magistrate to pass the necessary sentence under Section 56. It does not state that the Magistrate alone is empowered to pass the necessary sentence, in which case the proceeding cannot be transferred from his Court. = The error in A.S. Impex was correctly understood by the Division Bench of the Delhi High Court in Mahender Singh v. High Court of Delhi, (2009) 151 Comp Cas 485 (Delhi) and in N.G. Sheth v. C.B.I., 151 (2008) DLT 89. The Division Bench in both cases took a view different from that in A.S. Impex. However, both decisions having been rendered by Division Benches, A.S. Impex, could not be overruled. Therefore, I complete the formality and overrule A.S. Impex since it does not lay down the correct law in this regard. For the reasons stated above, there is no substance in the objections raised by the petitioners. The High Court has looked into Section 407 of Cr.P.C., referred to Articles 227 and 235 of the Constitution of India, and thereafter in its impugned judgment has observed as follows:- “Having perused Section 407 Cr.P.C. and Article 227 and 235, I have no hesitation to hold that this Court either in the administration side or in the judicial side has absolute jurisdiction to transfer any criminal cases pending before one competent Court to be heard and decided by another Court within the jurisdiction of this Court. This Court in its administrative power can issue direction that cases of particular nature shall be heard by particular court having jurisdiction.” For the reasons above mentioned, the Special Leave Petitions are dismissed.
published in http://judis.nic.in/supremecourt/imgst.aspx?filename=40834 REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION SPECIAL LEAVE PETITION (CRIMINAL) Nos. 6219-6220 OF 2012 Kamlesh Kumar & Ors. … Petitioners Versus The State of Jharkhand & Ors. … Respondents J U D G E M E N T H.L. GOKHALE, J These Special Leave Petitions (Criminal) seek … Continue reading
One accused is acquitted due to non-mention of his name in FIR and also no attributions or overt acts against him ; Death penalty converted in imprisonment to life = Principle of prudence, enunciated by Bachan Singh is sound counsel on this count which shall stand us in good stead – whenever in the given circumstances, there is difference of opinion with respect to any sentencing prop (sic)/rationale, or subjectivity involved in the determining factors, or lack of thoroughness in complying with the sentencing procedure, it would be advisable to fall in favour of the “rule” of life imprisonment rather than invoking the “exception” of death punishment.”= In the present case, even if we decide to ignore the similar deficiencies in the prosecution, and look into the oral evidence which has come on record, the case of prosecution against appellant no: 2, Naresh Paswan is rather weak. His name was not mentioned in the FIR. PW-2 Birendra Singh who is an injured witness, though states in the dock that he had seen the appellants slitting the throats, he failed to identify Naresh Paswan in Court. None of the other witnesses including PW-3 Lawlesh Singh, who is another injured witness, have attributed any role to him. None of them said that he was a member of MCC. It is material to note that Madhusudan who was named at Sr. No.5 in the FIR also faced a similar allegation. It was PW-2 Birendra Singh who named Madhusudan as one of the accused who slit the throats of the deceased, but had failed to identify him in the dock. In the absence of other witnesses throwing any light on his participation in the occurrence, Madhusudan was acquitted by the learned designated Judge. = (i) In the circumstances, Crl. Appeal No.791 of 2009 is allowed in part. The judgment convicting appellant no.2, accused Naresh Paswan is set- aside, and he will stand acquitted. He is acquitted of the offences for which he was charged, and it is ordered that he be released forthwith if not required in any other case. (ii) As far as appellant nos.1 and 3, accused Vyas Ram and Bugal Mochi are concerned, although their conviction under the offences for which they were charged is upheld, the death sentence awarded to them is commuted to imprisonment for life, which is to mean the rest of their natural life. (iii) Consequently, the Death Reference Case (R) No.2 of 2011 filed by State of Bihar is hereby dismissed.
published in http://judis.nic.in/supremecourt/imgst.aspx?filename=40818 REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION Criminal Appeal No.791 OF 2009 Vyas Ram @ Vyas Kahar & Ors. … Appellants Versus State of Bihar … Respondent With Death Reference Case (R) No.2 of 2011 State of Bihar … Applicant … Continue reading
Pension and Gratuity with holding pending inquiry = whether, in the absence of any provision in the Pension Rules, the State Government can withhold a part of pension and/or gratuity during the pendency of departmental/ criminal proceedings? = Fact remains that there is an imprimatur to the legal principle that the right to receive pension is recognized as a right in “property”. 14. Article 300 A of the Constitution of India reads as under: “300A Persons not to be deprived of property save by authority of law. – No person shall be deprived of his property save by authority of law.” Once we proceed on that premise, the answer to the question posed by us in the beginning of this judgment becomes too obvious. A person cannot be deprived of this pension without the authority of law, which is the Constitutional mandate enshrined in Article 300 A of the Constitution. It follows that attempt of the appellant to take away a part of pension or gratuity or even leave encashment without any statutory provision and under the umbrage of administrative instruction cannot be countenanced. 15. It hardly needs to be emphasized that the executive instructions are not having statutory character and, therefore, cannot be termed as “law” within the meaning of aforesaid Article 300A. On the basis of such a circular, which is not having force of law, the appellant cannot withhold – even a part of pension or gratuity. As we noticed above, so far as statutory rules are concerned, there is no provision for withholding pension or gratuity in the given situation. Had there been any such provision in these rules, the position would have been different. 16. We, accordingly, find that there is no merit in the instant appeals as the impugned order of the High Court is without blemish. Accordingly, these appeals are dismissed with costs quantified at Rs. 10,000/- each.
published in http://judis.nic.in/supremecourt/filename=40650 REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 6770 OF 2013 (Arising out of Special Leave Petition (Civil) No. 1427 of 2009) State of Jharkhand & Ors. ….. Appellant(s) Vs. Jitendra Kumar Srivastava & Anr. …..Respondent(s) WITH C.A. No. 6771/2013 (arising out of … Continue reading
transfer of case at fag end not maintainable = In order to substantiate the contention relating to bias, namely, the Presiding Judge would be influenced by his brother-in-law or even by his sister or Mr. P.K. Shahi to go against the interest of the appellant, Mr. Ram Jethmalani, learned senior counsel, placed some photographs taken on 13.01.2013 during the visit of Hon’ble the Chief Minister of Bihar Shri Nitish Kumar to the ancestral house of Shri P.K. Shahi along with the entire Shahi family at House No. 147 Village Angota Block, Nautan P.S., District Sivan. By showing these photographs, it is argued that there is a reasonable apprehension of real likelihood of bias on the part of the Presiding Judge. Apart from the relationship, as mentioned by the appellant, we were also shown the genealogical table. In our opinion, merely because some of the distantly related members were in the midst of the present Chief Minister, it cannot be presumed that the Presiding Judge would conclude against the appellant. Admittedly, the above criminal proceedings were heard by the very same Judge from November, 2011. After examination of witnesses and after hearing the arguments on both the sides, it is not clear how the appellant has such an apprehension at this stage. If the appellant really had any apprehension in his mind, this could have been raised at the earliest point of time and not after the conclusion of evidence and arguments, particularly, on the eve of pronouncement of judgment. As observed earlier, inconvenience, if any, can be set at right by granting further time for arguments. Accordingly, the claim of the appellant for transfer of the entire case from the file of the Special Judge to any other competent court cannot be entertained. We have already highlighted that the prosecution was initiated as early as in 1997 and after prolonged trial, the matter has reached final stage, namely, pronouncement of the decision. In our view, in a matter of this nature, it is not at all desirable to shift the case to some other court at the last hour.
published in http://judis.nic.in/supremecourt/imgst.aspx?filename=40636 REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION 1 CRIMINAL APPEAL NO.1166 OF 2013 (Arising out of S.L.P. (Crl.) No. 5513 of 2013) Lalu Prasad @ Lalu Prasad Yadav …. Appellant(s) Versus State of Jharkhand …. Respondent(s) 2 3 J U D G M E N … Continue reading
right to receive pension as per the revised formula.= under the Statute 16 (which has been in force from 1982), it is specifically provided that any change in the rate of pension or relief therein into the service conditions of the State Government employees would be extended to the University. = Therefore, in our view, the Division Bench cannot be faulted for taking the view that the reading of Statute read with the resolution passed by the State Government, University employees will be entitled to include 50% of the D.A. into their basic pay for the purposes of calculating their pension.= It is interesting to note that the University was a party to the Writ Petition but the University did not challenge the decision rendered either by the Single Judge or by the Division Bench. 12. In view of this position, in our view, there is no reason to entertain this appeal. The Civil Appeal is, accordingly, dismissed. No costs.
published in http://judis.nic.in/supremecourt/imgst.aspx?filename=40601 IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 200 OF 2011 STATE OF BIHAR & ORS. APPELLANTS VERSUS SUDHIR CHANDRA KUMAR & ORS. RESPONDENTS WITH C.A.NO.205/2011, 206/2011, 207/2011, 208/2011, 209/2011, 210/2011, 202/2011, 203/2011, 201/2011 AND 204/2011. O R D E R 1. We have heard Mr.Manish Kumar, learned counsel … Continue reading
Death penalty to imprisonment for life; circumstantial evidence; confession before police inadmissible but recovery part is admissible = We are, therefore, convinced that the ultimate conviction of the appellant under Section 302 of IPC and the sentence of life imprisonment imposed on him by commuting the death penalty imposed by the trial Court, was perfectly justified and we do not find any good grounds to interfere with the same. The appeal fails and the same is dismissed.; confessional statement= “16. A confession or an admission is evidence against the maker of it so long as its admissibility is not excluded by some provision of law. Provisions of Sections 24 to 30 of the Evidence Act and of Section 164 of the Code of Criminal Procedure deal with confessions. By virtue of the provisions of Section 25 of the Evidence Act, a confession made to a police officer under no circumstance is admissible in evidence against an accused. The section deals with confessions made not only when the accused was free and not in police custody but also with the one made by such a person before any investigation had begun. The expression “accused of any offence” in Section 25 would cover the case of an accused who has since been put on trial, whether or not at the time when he made the confessional statement, he was under arrest or in custody as an accused in that case or not. Inadmissibility of a confessional statement made to a police officer under Section 25 of the Evidence Act is based on the ground of public policy. Section 25 of the Evidence Act not only bars proof of admission of an offence by an accused to a police officer or made by him while in the custody of a police officer but also the admission contained in the confessional statement of all incriminating facts relating to the commission of an offence. Section 26 of the Evidence Act deals with partial ban to the admissibility of confessions made to a person other than a police officer but we are not concerned with it in this case. Section 27 of the Evidence Act is in the nature of a proviso or an exception, which partially lifts the ban imposed by Sections 25 and 26 of the Evidence Act and makes admissible so much of such information, whether it amounts to a confession or not, as relates to the fact thereby discovered, when made by a person accused of an offence while in police custody. Under Section 164 CrPC a statement or confession made in the course of an investigation, may be recorded by a Magistrate, subject to the safeguards imposed by the section itself and can be relied upon at the trial. 19. From a careful perusal of this first information report we find that it discloses the motive for the murder and the manner in which the appellant committed the six murders. The appellant produced the bloodstained sword with which according to him he committed the murders. In our opinion the first information report Ex. P-42, however is not a wholly confessional statement, but only that part of it is admissible in evidence which does not amount to a confession and is not hit by the provisions of Section 25 of the Evidence Act. The relationship of the appellant with the deceased; the motive for commission of the crime and the presence of his sister-in-law PW 11 do not amount to the confession of committing any crime. Those statements are non-confessional in nature and can be used against the appellant as evidence under Section 8 of the Evidence Act. The production and seizure of the sword by the appellant at the police station which was bloodstained, is also saved by the provisions of the Evidence Act. However, the statement that the sword had been used to commit the murders as well as the manner of committing the crime is clearly inadmissible in evidence. Thus, to the limited extent as we have noticed above and save to that extent only the other portion of the first information report Ex. P-42 must be excluded from evidence as the rest of the statement amounts to confession of committing the crime and is not admissible in evidence.”
reported in http://judis.nic.in/supremecourt/imgst.aspx?filename=40591 Reportable IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.1575 OF 2009 ANUJ KUMAR GUPTA @ SETHI GUPTA …APPELLANT VERSUS STATE OF BIHAR …RESPONDENT J U D G M E N T FAKKIR MOHAMED IBRAHIM KALIFULLA, J. 1. This appeal is directed against the judgment of the High Court … Continue reading
Service matter – appointment of trained teachers in the vacancies in the post of primary teachers in the state of Bihar = several trained teachers for a direction upon the State of Bihar to appoint them in the vacancies in the post of primary teachers in the State of Bihar. = Be that as it may, in the event, some discrepancies had crept in the final select list, the individual grievances contained various anomalies, which it is difficult for us to unravel. Accordingly, we modify our order dated 13th October, 2011, and allow the applicants to approach the High Court for redressal of their grievances. We also direct that the applications, special leave petitions and writ petitions filed before us be treated as withdrawn, with liberty to the parties to approach the High Court individually or otherwise, for relief, if any, but without, in any way, affecting the appointments of those teachers who have already been appointed against the vacant 34,540 posts and are working. We have been informed during the hearing that about 2413 posts out of the 34,540 posts were still left to be filled up. All the applications, Special Leave Petitions and Writ Petitions are, therefore, disposed of in the light of the aforesaid observations. We make it clear that none of the persons appointed out of the 34,540 vacancies should be disturbed in any way, but the question of filling up the balance vacancies may be taken into consideration, while disposing of the applications in question.
Reported in http://judis.nic.in/supremecourt/imgst.aspx?filename=40581 REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION SPECIAL LEAVE PETITION (CIVIL) NO.26824 OF 2012 YASHWANT SINGH & ORS. … PETITIONERS VS. STATE OF BIHAR & ORS. … RESPONDENTS WITH I.A.Nos. 668, 669, 671, 674, 675, 676, 677, 679, 680, … Continue reading
advocatemmmohan 