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(1) Whether multiplier specified in the Second Schedule appended to the Motor Vehicles Act, 1988 (for short “the 1988 Act”) should be scrupulously applied in all cases? and (2) Whether for determination of the multiplicand, the 1988 Act provides for any criterion, particularly as regards determination of future prospect.- where the deceased was married, the deduction towards personal and living expenses of the deceased, should be one-third (1/3rd) where the number of dependent family members is 2 to 3, one-fourth (1/4th) where the number of dependent family members is 4 to 6, and one-fifth (1/5th) where the number of dependent family members exceeds six. 31. Where the deceased was a bachelor and the claimants are the parents, the deduction follows a different principle. In regard to bachelors, normally, 50% is deducted as personal and living expenses, because it is assumed that a bachelor would tend to spend more on himself. Even otherwise, there is also the possibility of his getting married in a short time, in which event the contribution to the parent(s) and siblings is likely to be cut drastically. Further, subject to evidence to the contrary, the father is likely to have his own income and will not be considered as a dependant and the mother alone will be considered as a dependant. In the absence of evidence to the contrary, brothers and sisters will not be considered as dependants, because they will either be independent and earning, or married, or be dependent on the father. 32. Thus even if the deceased is survived by parents and siblings, only the mother would be considered to be a dependant, and 50% would be treated as the personal and living expenses of the bachelor and 50% as the contribution to the family. However, where the family of the bachelor is large and dependent on the income of the 23 Fakeerappa and Anr. v. Karnataka Cement Pipe Factory and Others; [(2004) 2 SCC 473] 31Page 32 deceased, as in a case where he has a widowed mother and large number of younger non-earning sisters or brothers, his personal and living expenses may be restricted to one-third and contribution to the family will be taken as two-third.” 38. The above does provide guidance for the appropriate deduction for personal and living expenses. One must bear in mind that the proportion of a man’s net earnings that he saves or spends exclusively for the maintenance of others does not form part of his living expenses but what he spends exclusively on himself does. The percentage of deduction on account of personal and living expenses may vary with reference to the number of dependant members in the family and the personal living expenses of the deceased need not exactly correspond to the number of dependants. 39. In our view, the standards fixed by this Court in Sarla Verma17 on the aspect of deduction for personal living expenses in paragraphs 30, 31 and 32 must ordinarily be followed unless a case for departure in the circumstances noted in the preceding para is made out. 40. In what we have discussed above, we sum up our conclusions as follows: (i) In the applications for compensation made under Section 166 of the 1988 Act in death cases where the age of the deceased is 15 years and above, the Claims Tribunals shall select the multiplier as 32Page 33 indicated in Column (4) of the table prepared in Sarla Verma17 read with para 42 of that judgment. (ii) In cases where the age of the deceased is upto 15 years, irrespective of the Section 166 or Section 163A under which the claim for compensation has been made, multiplier of 15 and the assessment as indicated in the Second Schedule subject to correction as pointed out in Column (6) of the table in Sarla Verma17 should be followed. (iii) As a result of the above, while considering the claim applications made under Section 166 in death cases where the age of the deceased is above 15 years, there is no necessity for the Claims Tribunals to seek guidance or for placing reliance on the Second Schedule in the 1988 Act. (iv) The Claims Tribunals shall follow the steps and guidelines stated in para 19 of Sarla Verma17 for determination of compensation in cases of death. (v) While making addition to income for future prospects, the Tribunals shall follow paragraph 24 of the Judgment in Sarla Verma17 . (vi) Insofar as deduction for personal and living expenses is concerned, it is directed that the Tribunals shall ordinarily follow the standards prescribed in paragraphs 30, 31 and 32 of the judgment in 33Page 34 Sarla Verma17 subject to the observations made by us in para 38 above. (vii) The above propositions mutatis mutandis shall apply to all pending matters where above aspects are under consideration. 41. The reference is answered accordingly. Civil appeals shall now be posted for hearing and disposal before the regular Bench.
Page 1 REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 4646 OF 2009 Reshma Kumari and Ors. … Appellants Vs. Madan Mohan and Anr. … Respondents WITH CIVIL APPEAL NO. 4647 OF 2009 JUDGMENT R.M. LODHA,J. A two-Judge Bench (S.B. Sinha and Cyriac Joseph, JJ.) proceeded to hear these appeals on … Continue reading
Motor Vehicles Act, 1988 : s. 166 – Claim petitions by passengers of bus and its driver – Injured in a collision between a bus and a truck – Tribunal holding that bus driver, and not the truck driver, was driving the vehicle in a rash and negligent manner – Claim petitions of passengers allowed and that of driver rejected – High Court rejecting claim petition of bus driver observing that he having not questioned finding of tribunal in passengers’ petitions regarding his negligence and the findings having become final, he was bound thereby – Held: Claimant-bus driver was fully aware of his legal liability – He was also prosecuted in criminal court in that regard – He deposed in claim petitions filed by injured passengers – He was aware that his plea of not being negligent was negatived – He, therefore, was party to the proceedings initiated by passengers and could have preferred an appeal thereagainst – Tribunal and High Court rightly rejected his claim – `Party’ – `Necessary party’ – ` Aggrived person’ – Connotation of – Practice and Procedure – Words & Phrases. In a motor accident stated to have occurred on a collision between a bus belonging to the State Road Transport Corporation and a truck, several passengers traveling in the bus and its driver (the appellant) were injured. The passengers as also the appellant filed a claim petition before the Motor Accident Claims Tribunal. The appellant was also prosecuted in a criminal case for rash and negligent driving. However, that case ended in acquittal. Before the Tribunal the Corporation denied and disputed the case of the passengers that the appellant was driving the bus in a rash and negligent manner. The appellant also examined himself in the claim petitions filed by the passengers and supported the case of the Corporation. The Tribunal heard both the sets of cases together and allowed the claim petitions of the passengers holding that the appellant was driving the bus rashly and negligently. The Corporation did not challenge the awards given in favour of the passengers and the same attained finality. Rejecting the claim petition of the appellant the Tribunal held that it was the appellant, and not the truck driver, who was driving the vehicle rashly and negligently. In the appeal filed by the appellant the High Court affirming the order of the Tribunal held that as the appellant did not question correctness of the award of the Tribunal in the passengers’ cases, although a party aggrieved, he was bound thereby as regards the finding of negligence. In the instant appeal filed by the bus driver, it was contended for the appellant, inter alia, that the awards passed by the Tribunal in the cases of the passengers were not binding on the appellant; and that the High Court erred in holding that although the appellant was not a party in the proceedings, he was an aggrieved person. =Dismissing the appeal, the Court HELD: 1.1 Section 168 of the Motor Vehicles Act,1988 mandates the Tribunal to specify the amount which shall be paid by the owner or the driver of the vehicle involved in the accident or by both or any of them. As it is imperative on the part of the Tribunal to specify the amount payable, inter alia by the driver of the vehicle, a fortiori he should be impleaded as a party in the proceedings. In appropriate cases, liability of the driver may be primary. He may not, however, be a necessary party in the sense that in his absence, the entire proceeding shall not be vitiated as the owner of the vehicle was a party in his capacity as a joint tort feaser. [para 18 and 33 ] [98-B, C] Sitaram Motilal Kalal Vs. Santanuprasad Jaishanker Bhatt AIR 1966 SC 1697; and Municipal Corporation of Greater Bombay Vs. Laxman Iyer and Another (2003) 8 SCC 731 – relied on. Patel Roadways and Another Vs. Manish Chhotalal Thakkar and Others ILR 2000 Kar. 3286; Minu B. Mehta and Another Vs. Balkrishna Ramchandra Nayan and Another AIR 1977 SC 1248; and New India Assurance Co. Vs Munni Devi 1993 ACJ 1066 (M.P.) and Madhya Pradesh State Road Transport Corporation Vs. Vaijanti 1995 ACJ 560 (M.P.) – referred to. 1.2 In the instant case, the appellant was fully aware of his legal liability. He was involved in the criminal case. He deposed in the claim applications filed by the injured persons who were travelling in the bus. He was fully aware that unless he proves his innocence in regard to the charge of rash and negligent driving, he would be held liable therefor, particularly, when he himself had filed the claim petition. It might have been a matter of sharing of liability between him and the driver of the truck. He was aware that his plea of not being negligent has been negatived. He, for all intent and purport, therefore, was a party to the earlier proceedings. If he intended to get rid of the findings recorded by the Tribunal, he could have preferred an appeal thereagainst. He did not choose to do so. It was in that sense, the High Court cannot be said to have committed any error in holding tha the appellant was also an aggrieved person. [para 22 and 25] [100-D, E, F; 104-B] 2.1 In the instant case, two sets of claims cases were heard together, one filed by the passengers of the KSRTC bus and the other filed by the driver of the said bus. Unless the finding of negligence in the claim cases of the passengers was negatived, in the claim cases filed by the driver himself, the said finding of negligence on the part of the driver could not have been varied. [para 23] [101-E, F] 2.2 In the first set of claims cases, the driver of the bus was held to be negligent and, therefore, a ruling that the driver is a necessary party would mean that the bus driver must necessarily be involved in these proceedings. However, the driver of the bus had sufficient opportunity to make a representation against the allegation of negligence as he was examined as RW1 in the claim cases filed by the passengers, even though he was not formally impleaded as a respondent. Hence, the High Court has correctly held that he was a `party’ to the proceedings. [para 23] [101-G, H] 2.3 In the claims filed by the driver of the bus, namely the appellant, specific allegations were made against the driver of the truck. Hence, the driver of the truck was not a necessary party. Here, one must bifurcate the terms `party’ and `necessary party’. `Party’ has been correctly defined by the High Court in the impugned judgment in terms of involvement in the proceedings regardless of formal impleadment. However, a necessary party as defined is one who must be joined in an action because, inter alia, complete relief cannot be given to those already parties their joinder. [para 23] [102-B-E] Black’s Law Dictionary, 5th Edition – referred to. 3.1 The principles of natural justice demand that a person must be given an opportunity to defend his action. Appellant not only made averments as regards absence of negligence on his part; he made specific allegations against the driver of the truck. The driver of the truck alone would have been competent to depose. In a given case, like the present one, the owner of the truck may not defend the action at all keeping in view the fact that the vehicle was an insured one. [para 19-20] [98-D, E, F] Halsbury’s Laws of England, 3rd Edn., Vol. 32 – referredto. 3.2 First and foremost, natural justice would mandate involvement of a driver, as an adverse finding on negligence cannot and should not be made against him without giving him the opportunity to at least make a representation as a witness. More importantly, however, one must look at the kind of evidence which must be led in such cases. To make a finding on negligence without involving the driver, as, at least, a witness would vitiate the proceedings not only on the basis of the fact that the driver has not been given an opportunity to make a representation, but also because the evidence to make a finding regarding negligence would necessarily be inadequate. On this basis, a driver should be made a `party’ to the proceedings. It was done in the instant case. Without contrary evidence led by the appellant or the Corporation, the finding of negligence on the part of the appellant cannot be interfered with. Without a deposition on the part of the truck driver and without his involvement at least as a witness, an adverse finding on negligence cannot be made against him. In any event, the truck driver was examined as RW1. Therefore, in the circumstances, the driver of the bus was examined in the first set of claims cases in the same manner as the driver of the truck was examined in the second set of cases (which has been filed by the Appellant). [para 23 and 24] [102-E, F; 103-D-H; 104-A] 4. Both the Tribunal and the High Court have rightly arrived at a finding of fact that it was the appellant alone who was rash and negligent in driving of the vehicle. No case had been made out to differ with the said finding of fact. [para 25] [104-B, C] Kiran Suri for the Appellant. R.S. Hegde, Chandra Prakash, Rahul Tyagi, J.K. Nayyar, P.P. Singh, D. Varadarajan and Shiv Prakash Pandey for the Respondents.=2008 AIR 2545, 2008(7 )SCR83 , , 2008(7 )SCALE496 ,
CASE NO.: Appeal (civil) 3041 of 2008 PETITIONER: Machindranath Kernath Kasar RESPONDENT: D.S. Mylarappa & Ors. DATE OF JUDGMENT: 29/04/2008 BENCH: S.B. Sinha & V.S. Sirpurkar JUDGMENT: J U D G M E N T REPORTABLE CIVIL APPEAL NO. 3041 OF 2008 [Arising out of SLP (Civil) No. 17711 of 2006] S.B. SINHA, J : … Continue reading
Indian Succession Act, 1925 – s.63 – Execution of unprivileged Wills – Execution of registered Will by testator- Certain properties bequeathed in favour of his sons and daughters but no property bequeathed to his eldest son-claimant – Suit by one of the beneficiaries – Claimant’s case that the first Will was not genuine and had been revoked by testator by subsequent Wills – First appellate court decreeing the suit in favour of beneficiary holding that the existence of first Will was admitted and the subsequent Wills were not proved – Upheld by High Court – On appeal, held: Subsequent Wills are surrounded by various suspicious circumstances – Claimant failed to discharge its onus of removing the suspicious circumstances surrounding the Wills – Attesting witness of the Wills also not examined – Thus, order of High Court upheld – Evidence Act, 1872 – s. 68. The father executed a registered Will and bequeathed certain properties in favour of his two sons-respondent and G; and his two daughters. He did not bequeath any property to his eldest son-appellant no.1. The father-testator died on 23.5.1980. Thereafter, the appellant tried to disturb the possession of the respondent. The respondent filed a suit. The appellant contended that the said Will was not genuine and was revoked by testator by another Will dated 25.4.1980 and also thereafter, by another Will dated 02.05.1980. The appellant claimed his rights under the subsequent Wills- Ex.B-19 and Ex.B-20. The trial court dismissed the suit. The first appellate court allowed the appeal and decreed the suit. It held that the existence of the first Will has been admitted and the subsequent Wills were not proved since no attesting witnesses were produced to prove the two subsequent unregistered Wills; and the same were executed when the testator was unwell. The High Court upheld the order. It found that the first Will was executed while the testator was residing with the respondent and his family at place V and the subsequent Wills were executed couple of weeks prior to the death of the testator, at place C where appellant was residing. Hence the appeal. =Dismissing the appeal, the Court HELD: 1.1. When a Will is surrounded by suspicious circumstances, the person propounding the Will has a very heavy burden to discharge. Where testator’s mind is feeble and he is debilitated and there is not sufficient evidence as to the mental capacity of the testator or where the deposition in the Will is unnatural, improbable or unfair in the light of the circumstances or it appears that the bequest in the Will is not the result of testator’s free will and mind, the Court may consider that the Will in question is surrounded by suspicious circumstances. [Para 8] [739-G-H; 740- A-C] 1.2. Under section 63 of the Indian Succession Act, 1925, the Will has to be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the Will or has seen some other person sign the Will, in the presence, and by the direction of the testator, or has received from the testator a personal acknowledgment of his signature or mark, or of the signature of such other person; and each of the witnesses shall sign the Will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary. Section 68 of the Evidence Act, 1872 further provides if a document is required by law to be attested it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution if there be an attesting witness alive, and subject to the process of the Court is capable of giving evidence. [Para 11] [740-E-H; 741-A-B] 2.1. In the instant case, both the subsequent Wills-Ex.B-19 and Ex.B-20 were allegedly executed by the testator a couple of weeks before his death and when he was made to stay in the house of the 1st appellant. It appears that the attestors of both the said two Wills were all of place C and were strangers to the family. Those two Wills surfaced only at the time when the 1st appellant gave his written statement in 1994 in the suit filed by the respondent. These are suspicious circumstances surrounding Ex.B-19 and Ex.B-20. The High Court also found on analyzing the said facts that there are suspicious circumstances surrounding the execution of Ex.B-19 and Ex.B-20 and they are required to be dispelled by the appellant. The statutory requirements u/s. 68 of the Evidence Act and u/s. 63 of Indian Succession Act are to be fulfilled which have not been done. Not a single attesting witness of Ex.B-19 and Ex.B-20 was examined. [Paras 6 and 7] [739-B-F] 2.2. Both Ex.B-19 & Ex.B-20 are surrounded by various suspicious circumstances. The appellants did not succeed in discharging its onus of removing the suspicious circumstances surrounding Ext B19 & B20. The High Court upheld the finding of the first appellate court that Ex.B-19 and Ex.B-20 have not been proved. The High Court was right in not interfering with those findings in the second appeal as no substantial question of law has been erroneously decided by the first appellate court. Thus, there is no reason to find any error in the judgment of the High Court. [Paras 8, 10 and 14] [739-G; 740-F; 742-A-B] H. Venkatachala Iyengar v. B.N. Thimmajamma and Ors AIR 1959 SC 443; Madhukar D. Shende v. Tarabai Aba Shedage (2002) 2 SCC 85; Niranjan Umeshchandra Joshi v. Mrudula Jyoti Rao and Ors. (2006) 13 SCC 433; Savithri and Ors. v. Karthyayani Amma and Ors. (2007) 11 SCC 621, relied on. Case Law Reference: AIR 1959 SC 443 Relied on. Para 8 (2002) 2 SCC 85 Relied on. Para 13 (2006) 13 SCC 433 Relied on. Para 13 (2007) 11 SCC 621 Relied on. Para 13 CIVIL APPELLATE JURISDICTION : Civil Appeal No. 7357 of 2002. From the Judgment & Order dated 10.12.2001 of the High Court of Judicature at Madras In S.A. No. 130 of 2000. V. Prabhakar, R. Chandrachud for the Appellants. B. Sridhar, K. Ram Kumar for the Respondent.
REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO(s). 7357 OF 2002 Balathandayutham and another ..Appellant(s) Versus Ezhilarasan ..Respondent(s) J U D G M E N T GANGULY, J. 1.Heard counsel for the parties. 2. The material facts of the case are: Late Mr. M. Ramachandran, the father of the 1st … Continue reading
Succession Act, 1925 – s.90 – Effect of, on interpretation of the Will – Held: In absence of a contrary intention in the Will, the description of the properties in the Will would be deemed to refer to and include the property answering that description at the death of the testator – The Will would then be deemed to speak from the date of the testator’s death – English Wills Act (U.K) – s.24. Will – Statutory presumption against intestacy – Held: While construing a Will, the Court should lean against any intestacy – However, the presumption against intestacy cannot be raised ignoring the intention in the Will. Interpretation of Statutes – Deeming provision – Interpretation and effect of – Legal fiction. Words and Phrases – “deemed” and “comprise” – Meaning of. Dispute arose between the parties over some properties bequeathed in terms of a Will. In the Will, seven items of property were bequeathed. Pursuant to an application filed by the appellants under Section 278 of the Indian Succession Act, 1925, the District Judge granted the letters of administration in respect of all the seven items of property in the Will. On appeal, the High Court affirmed the grant of letters of administration in respect of items 1 to 3. It declined to grant the letters of administration in respect of items 4 to 7 on the ground that on the date of the Will, the testator’s title over item nos.4 to 7 was not perfected; and that it was perfected only on the registration of the sale deed (executed in favour of the testator), which was after the execution of the Will. In the instant appeals, the question which arose for consideration was whether in view of the provisons of s.90 of the Indian Succession Act, 1925, the judgment of the High Court was erroneous and liable to be set aside. =Disposing of the appeals, the Court HELD:1.1. Section 90 of the Indian Succession Act, 1925 is based on Section 24 of the English Wills Act. Prior to the English Wills Act under the common law, testamentary disposition of real property spoke from the date of the Will. But the English Wills Act changed that by a statutory presumption to the effect, that unless a contrary intention appears from the recitals of the Will, the Will speaks from the date of the testator’s death. [Para 13] [1142-F] 1.2. Section 90 uses the legal fiction “deemed” and that is used with the specific purpose of raising a presumption against intestacy. On an analysis of the provisions of Section 90, it is clear that the property described in the Will shall be deemed to refer to and comprise the property answering that description at the death of the testator. In the absence of a contrary intention in the Will, the description of the properties in the Will shall be deemed to refer to and include the property answering that description at the death of the testator. [Paras 14, 16] [1142-G-H] Shorter Oxford Dictionary on Historical Principles, p.386; Webster’s Comprehensive Dictionary Encyclopedic Edition, p.269 and Law of Wills by Williams, 3rd edition, p.429, referred to. 2. When the legislature uses a deeming provision to create a legal fiction, it is always used to achieve a purpose. The obvious purpose herein is to avoid intestacy in respect of properties referred to and comprised in the Will. Once the purpose is ascertained, the Court must give full effect to the statutory fiction and the fiction is to be carried to its logical end. Going by this test, the High Court did not properly appreciate the purport of Section 90 in the context of the Will when it is common ground that the Will does not contain any contrary intention in respect of the bequest of items 4 to 7 of the properties. [Paras 17, 18, 19] [1143-E-H; 1144-A-C] State of Travancore-Cochin and others v. Shanmugha Vilas Cashewnut Factory, Quilon AIR 1953 SC 333 and State of Bombay v. Pandurang Vinayak and others AIR 1953 SC 244, relied on. East End Dwellings Co. Ld. v. Finsbury Borough Council 1952 AC 109, referred to. 3. On general principles also, a Will speaks only from the date of the death of the testator. In the present case, assuming that the testator had not acquired title in respect of half of the property, namely, items 4 to 7 of the property bequeathed by him in the Will on 8.5.1967, but the sale deed having been registered on 8.5.1967, the title reverts back to the date of execution of the sale deed on 2.5.67 under Section 47 of the Registration Act. And the testator died on 20.7.71. Therefore, much before his death, the testator acquired full title over items 4 to 7 of the property. Therefore, the High Court was in clear error in not appreciating the effect of Section 90 on the interpretation of the Will. [Para 21] [114- F-H] 4. It is one of the well established principles that while construing a Will, the Court should lean against any intestacy. The presumption against intestacy cannot be raised ignoring the intention in the Will. That is why Section 90 stipulates that the deeming clause will operate only where there is no contrary intention. In this case, it is common ground that no contrary intention could be discerned in the Will in respect of items 4 to 7. In construing a Will both the English Courts and the Supreme Court of India lean against any presumption favouring intestacy in the absence of a manifest contrary intention in the Will. The judgment of the High Court is thus set aside and that of the District Judge is restored. [Paras 32, 34 and 39] [1147-F-H; 1148-F-G; 1149-F] Ram Saran Lall and others v. Mst. Domini Kuer and others, AIR 1961 SC 1747, distinguished. Hamda Ammal v. Avadiappa Pathar and 3 others (1991) 1 SCC 715, and A. Jithendernath v. Jubilee Hills Coop. House Building Society and another (2006) 10 SCC 96, held inapplicable. Gnambal Ammal v. T Raju Ayyar and others, AIR 1951 SC 103; N. Kasturi v. D. Ponnammal and others, AIR 1961 SC 1302; Pearey Lal v. Rameshwar Das AIR 1963 SC 1703 and Navneet Lal alias Rangi v. Gokul and others AIR 1976 SC 794, relied on. Alavandar Gramani Vs. Danakoti Ammal and others (AIR 1927 Madras 383); Abdulsakur Haji Rahimtulla and others v. Abubakkar Haji Abba and others AIR 1930 Bombay 191; Rangoo Ramji Vs. Harisa and another, AIR 1932 Nagpur 163, referred to. Re Harrison Turner Vs. Hellard, (1885) 30 Chancery Division 390; Re Fleming’s Will Trusts Ennion Vs. Hampstead Old People’s Housing Trust Limited and Another (1974) 3 All ER 323 and Venkata Narasimha Appa Row vs. Parthasarthy Appa Row and another 41 Indian Appeals 51, referred to. Case Law Reference: AIR 1953 SC 333 relied on Para 17 AIR 1953 SC 244 relied on Para 18 1952 AC 109 referred to Para 18 (1885) 30 Chancery Division 390 referred to Para 22 (1974) 3 All ER 323) referred to Para 23 AIR 1927 Madras 383 referred to Para 26 AIR 1930 Bombay 191 referred to Para 27 AIR 1932 Nagpur 163 referred to Para 28 41 Indian Appeals 51 referred to Para 31 AIR 1951 SC 103 relied on Para 32 AIR 1961 SC 1302 relied on Para 33 AIR 1963 SC 1703 relied on Para 33 AIR 1976 SC 794 relied on Para 33 AIR 1961 SC 1747 distinguished Para 35 (1991) 1 SCC 715 held inapplicable Para 38 (2006) 10 SCC 96 held inapplicable Para 38 CIVIL APPELLATE JURISDICTION : Civil Appeal No. 7226 of 2002. From the Judgment & Order dated 6.12.2000 of the High Court of Kerala at Ernakulam in M.F.A. No. 44 of 1990. WITH C.A. No. 4432 of 2003 T.L. Vishwanatha Iyer, T.G. Narayanan Nair, K.N. Madhusoodanan, Romy Chacko, Jasaswini Mishra for the appearing parties.
REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO.7226 OF 2002 Ittianam & Others ..Appellant(s) Versus Cherichi alias Padmini ..Respondent(s) WITH CIVIL APPEAL NO.4432 OF 2003 J U D G M E N T GANGULY, J. CIVIL APPEAL NO.7226 OF 2002 1. This appeal is directed against the judgment of the … Continue reading
elections =improper rejection of nomination papers =the Returning Officer erred in acting in hot haste in rejecting the nomination paper of the proposed candidate and not postponing the scrutiny to the next day, particularly, when a request was made by the authorised representative of the proposed candidate. The election petitioners have been successful in proving the improper rejection of the proposed candidate’s nomination paper. In other words, they have been able to prove the ground for setting aside appellant’s election to 89-Athagarh Assembly Constituency under Section 100(1)(c) of the 1951 Act.
REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 4956 OF 2010 Ramesh Rout …. Appellant Versus Rabindra Nath Rout ….Respondent WITH CIVIL APPEAL NO. 4962 OF 2010 JUDGMENT R.M. Lodha, J. The returned candidate — Ramesh Rout – whose election to the 14th Orissa Legislative … Continue reading
The domestic enquiry found the delinquent employee guilty of all the charges. The enquiry report was accepted by the Disciplinary Authority and there is no grievance on behalf of the respondent-workman that statutory provisions/principles of natural justice have not been observed while conducting the enquiry. The Disciplinary Authority imposed the punishment of dismissal from service which cannot be held to be disproportionate or non-commensurate to the delinquency. The Labour Court after reconsidering the whole case came to the conclusion that the enquiry has been conducted strictly in accordance with law in a fair manner and charges have rightly been proved against the delinquent 1
Reportable IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 9933 OF 2011 (Arising out of SLP(C) No.7083 of 2010) The Divisional Controller, KSRTC …. Appellant Versus M.G. Vittal Rao …. Respondent J U D G M E N T Dr. B.S. CHAUHAN, J 1. Leave granted. 2. This appeal has been … Continue reading
AIR INDIA CABIN CREW ASSN=whether the promotional avenues and other terms of =In our view, once an employee is placed in the Executive cadre, he ceases to be a workman and also ceases to be governed by Settlements arrived at between the Management and the workmen through the concerned Trade Union. It is not a question of an attempt made by such employees to wriggle out of the Settlements which had been arrived at prior to their elevation to the Executive cadre, which, by operation of law, cease to have any binding force on the employee so promoted by the Management. 51. We are not, therefore, inclined to interfere with the orders passed in the several writ petitions, out of which the present appeals arise, and the same are, accordingly, dismissed.
REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NOS.9857-9861 OF 2011 (Arising out of SLP(C)Nos.20668-20672 of 2007) AIR INDIA CABIN CREW ASSN. & ORS. … APPELLANTS Vs. UNION OF INDIA & ORS. … RESPONDENTS WITH CIVIL APPEAL NOS.9862-9865 OF 2011 (Arising out of SLP(C)Nos.20679-20682 of 2007) AND CIVIL APPEAL NOS.9866-9871 OF … Continue reading
Narcotic Drugs and Psychotropic Substances Act, 1985: ss. 22, 23, 52A, 53 and 53A -Possession of contraband – Recovery – Prosecution – Confessions made by accused before Customs authorities – During trial confession retracted – Conviction by courts below – On appeal, held: Conviction not justified – In the facts of the case, recovery not proved beyond reasonable doubt – Investigation of the case not fair and reasonable – There are discrepancies in the treatment and disposal of physical evidence leading to drawl of negative inference – Cumulative effect of the facts of contradiction in the statements of the official witnesses, failure to examine independent witnesses and nature of confession and circumstances of recording of confession and other lacunae in the prosecution case, do not lead to guilt of accused – Constitution of India, 1950 – Articles 14 and 21 – Standing Order No. 1 of 1989 – Section 3.1- Evidence Act, 1872- s. 114 (e) and (g) – Customs Act, 1962 – s.110(1B) . ss. 35 and 54 – Reverse burden of proof – Constitutional validity of – Held: Are ex faciedel not unconstitutional – A right to be presumed innocent has to be applied subject to exceptions – Such presumption is a human right and cannot be equated with fundamental right enshrined under Article 21 – Constitutionality of penal provision providing for reverse burden of proof must be tested on the anvil of State’s responsibility to protect innocent citizens – Procedural requirements are required to be strictly complied with -Evidence Act,1872 – s. 25 – Customs Act, 1962 – ss. 108 and 138B – International Covenant on Civil and Political Rights (1966) – Article 14(2) – Universal Declaration of Human Rights (1948) – Article 12- European Convention for Protection of Human Rights and Fundamental Freedoms- Article 6.2- Evidence – Reverse burden of proof. Evidence – Confession – Retracted confession – Reliance on – For conviction under NDPS Act – Confession made under s. 108 of Customs Act – Plea of accused that confession was not voluntary but under threat and distress – Held: Provisions of Customs Act cannot be applied for conviction under any other statute – Customs Officer, by virtue of legal fiction would be deemed to be police officer – Thus confession made to them would run counter to s. 25 of Evidence Act – s. 108 must give way to Article 20(3) of the Constitution – A retracted confession can be relied on only if it is voluntary – Burden to prove that confession was made voluntarily is on the prosecution – Narcotic Drugs and Psychotropic Substances Act, 1985- ss. 53 and 53A – Constitution of India, 1950 – Article 20(3) -Penal Code, 1860 – ss. 193 and 228 – Customs Act, 1962 – ss. 108 and 138B. International Law: International Covenant on civil and Political Rights – Article 14 (2) – Presumption of innocence – Held: It is a human right – It cannot per se be equated with fundamental right under Article 21 of the Constitution – Constitution of India, 1950 – Article 21. Doctrines/Principles: (i) Doctrine of Compatibility. (ii) Doctrine of constitutionality. (iii) Doctrine of res ipsa loquitur. Appellant-an Afghan national, presented himself before authorities for Customs clearance at airport. He was searched by the Gazetted Officer of the Customs Department and 22 packets of brown power weighing 1 Kg. 400 gms. were recovered from a carton belonging to him. Appellant was taken into custody immediately thereafter by the customs authorities. He was formally arrested 15 hours after the recovery. Appellant confessed his guilt on two occasions. As per the Forensic Report, the alleged contraband was found to be of white colour. Appellant in his examination u/s 313 Cr.P.C. denied in categorical terms that the carton belonged to him. He also retracted from his alleged confession. Trial Court convicted the appellant u/s. 22 and 23 of Narcotic Drugs and Psychotropic Substances Act, 1985. The conviction was confirmed by High Court. In appeal to this court appellant contended that ss. 35 and 54 of the Act imposing reverse burden on an accused is contrary to Article 14 (2) of the International Covenant on Civil and Political Rights which provides that an accused is innocent until proved `guilty’ and thus ultra vires Articles 14 and 21 of the Constitution of India; that confessions of the accused before customs authorities are inadmissible in evidence being hit by s. 25 of Evidence Act, as s. 108 of customs Act should be read coupled with s. 53 and 53A of the Act; that a heightened standard of proof is required to be discharged by the prosecution to establish foundational facts and the same has not been done in the instant case; that in view of the facts that there was failure to produce physical evidence before the Court, there was failure to examine independent witnesses and there were discrepancies in the statements of the official witnesses with regard to search and seizure, conviction is not sustainable. =Allowing the appeal, the Court HELD: 1.1 The provisions of Sections 35 and 54 of Narcotic Drugs and Psychotropic Substances Act, 1985 are not ultra vires the Constitution of India. However, procedural requirements laid down therein are required to be strictly complied with. Only because the burden of proof under certain circumstances is placed on the accused, the same, by itself, would not render the impugned provisions unconstitutional. [Paras 43 and 151] [408-B, 452-C,D] 1.2 Sections 35 and 54 of NDPS Act may have to be read in the light of Articles 14 and 21 of the Constitution of India. However, limited inroad on presumption would be justified. The Act specifically provides for the exceptions. It is a trite law that presumption of innocence being a human right cannot be thrown aside, but it has to be applied subject to exceptions. [Paras 65, 67 and 71] [413-F, 415-A, 416-F] 1.3 Presumption of innocence is a human right as envisaged under Article 14(2) of the International Covenant on Civil and Political Rights. It, however, cannot per se be equated with the fundamental right and liberty adumbrated in Article 21 of the Constitution of India. [Para 42] [407-G] State v. Basson 2004 (6) BCLR 620 (CC) – referred to. `War, Violence, Human Rights, and the overlap between national and international law: Four cases before the South African Constitutional Court’ by Albie Sachs, 28 Fordham International Law Journal 43- referred to 1.4 A right to be presumed innocent, subject to the establishment of certain foundational facts and burden of proof, to a certain extent, can be placed on an accused. The provision for reverse burden is not only provided for under the special Acts like the present one but also under the general statutes like IPC. The Evidence Act provides for such a burden on an accused in certain matters, as, for example, under Section 113A and 113B thereof. Even otherwise, this Court, having regard to the factual scenario involved in cases, e.g., where husband is said to have killed his wife when both were in the same room, burden is shifted to the accused. The doctrine of res ipsa loquitur providing for a reverse burden has been applied not only in civil proceedings but also in criminal proceedings. [Paras 44, 50 and 68] [408-C, 410-A,B,C, 415-B] M/s. Seema Silk and Sarees and Anr. v. Directorate of Enforcement and Ors. 2008 (7) SCALE 624 – relied on Krishna Janardhan Bhat v. Dattatraya G. Hegde 2008 (1) SCALE 421; Hiten P. Dalal v. Bratindranath Banerjee 2001 (6) SCC 16; Alimuddin vs. King Emperor 1945 Nagpur Law Journal 300; Syed Akbar vs. State of Karnataka AIR 1979 SC 1848 Jacob Mathew vs. State of Punjab 2005 (6) SCC 1; State of A.P. v. C. Uma Maheswara Rao and Anr. 2004 (4) SCC 399; B. Nagabhushanam v. State of Karnataka 2008 (7) SCALE 716 – referred to. Regina v. Lambert 2001 UKHL 37 : 2001 (3) All ER 577; State v. Coetzee 1997 (2) LRC 593; R. v. Hansen 2007 NZSC 7; Home vs. Dorset Yacht Company 1970 (2) ALL E.R. 294 – referred to. The Presumption of Innocence in English Criminal Law, 1996 Crim.L.R. 306- referred to. 1.5 It must be construed having regard to the other international conventions and having regard to the fact that it has been held to be constitutional. Thus, a statute may be constitutional but a prosecution thereunder may not be held to be one. Enforcement of law, on the one hand and protection of citizen from operation of injustice in the hands of the law enforcement machinery, on the other, is, thus, required to be balanced. The constitutionality of a penal provision placing burden of proof on an accused, thus, must be tested on the anvil of the State’s responsibility to protect innocent citizens. [Paras 44, 51 and 52] [408-C,D, 410-C,D,E] 1.6 The procedures laid down under the Act being stringent in nature, however, must be strictly complied with. Provisions imposing reverse burden, however, must not only be required to be strictly complied with but also may be subject to proof of some basic facts as envisaged under the statute in question. `Reason to believe’, as provided in several provisions of the Act and as defined in Section 26 of IPC on the part of the officer concerned is essentially a question of fact. [Paras 46, 47 and 75] [408-E,F, 419-E,G] Directorate of Revenue and Anr. v. Mohammed Nisar Holia 2008 (2) SCC 370 – referred to. 1.7 The court must assess the importance of the right being limited to our society and this must be weighed against the purpose of the limitation. The purpose of the limitation is the reason for the law or conduct which limits the right. [Para 53] [410-E,F] S v. Dlamini; S v. Dladla and Ors. 1999 (7) BCLR 771(CC) – referred to. Glanville Williams, Textbook of Criminal Law (2nd Edn.) page 56 – referred to. 1.8 Independence of judiciary must be upheld. The superior courts should not do something that would lead to impairment of basic fundamental and human rights of an accused. [Para 72] [416-G] The State v. Abdul Rashid Khoyratty, 2006 UKPC 13 – referred to. 2.1 The fact of recovery has not been proved beyond all reasonable doubt which is required to be established before the doctrine of reverse burden is applied. Recoveries have not been made as per the procedure established by law. The investigation of the case was not fair. [Para 151] [452-G, 453-A] 2.2 The provisions of NDPS Act and the punishment prescribed therein being indisputably stringent, the extent of burden to prove the foundational facts on the prosecution, i.e., `proof beyond all reasonable doubt’ would be more onerous. A heightened scrutiny test would be necessary to be invoked. Whereas, on the one hand, the court must strive towards giving effect to the parliamentary object and intent in the light of the international conventions, but, on the other, it is also necessary to uphold the individual human rights and dignity as provided for under the UN Declaration of Human Rights by insisting upon scrupulous compliance of the provisions of the Act for the purpose of upholding the democratic values. It is necessary for giving effect to the concept of `wider civilization’. It is a well settled principle of criminal jurisprudence that more serious the offence, the stricter is the degree of proof. A higher degree of assurance, thus, would be necessary to convict an accused. [Para 77] [420-B,C,D,E,F] State of Punjab v. Baldev Singh, 1999 (3) SCC 977; Ritesh Chakravarty v. State of Madhya Pradesh, JT 2006 (12) SC 416 – relied on. 2.3 Sections 35 and 54 of NDPS Act, no doubt, raise presumptions with regard to the culpable mental state on the part of the accused as also place burden of proof in this behalf on the accused; but the said provision would clearly show that presumption would operate in the trial of the accused only in the event the circumstances contained therein are fully satisfied. An initial burden exists upon the prosecution and only when it stands satisfied, the legal burden would shift. Even then, the standard of proof required for the accused to prove his innocence is not as high as that of the prosecution. Whereas the standard of proof required to prove the guilt of accused on the prosecution is “beyond all reasonable doubt” but it is `preponderance of probability’on the accused. If the prosecution fails to prove the foundational facts so as to attract the rigours of Section 35 of NDPS Act, the actus reus which is possession of contraband by the accused cannot be said to have been established. [Para 79] [421-B,C,D, E] 2.4 With a view to bring within its purview the requirements of Section 54 of the Act, element of possession of the contraband was essential so as to shift the burden on the accused. The provisions being exceptions to the general rule, the generality thereof would continue to be operative, namely, the element of possession will have to be proved beyond reasonable doubt. [Para 80] [421-E,F] 2.5 Whether the burden on the accused is a legal burden or an evidentiary burden would depend on the statute in question. The purport and object thereof must also be taken into consideration in determining the said question. It must pass the test of doctrine of proportionality. The difficulties faced by the prosecution in certain cases may be held to be sufficient to arrive at an opinion that the burden on the accused is an evidentiary burden and not merely a legal burden. The trial must be fair. The accused must be provided with opportunities to effectively defend himself. [Para 81] [421-G, 422-A] Sheldrake v. Director of Public Prosecutions 2005 (1) All ER 237 – referred to. Article by Richard Glover titled “Sheldrake Regulatory Offences and Reverse Legal Burdens of Proof” 2006 (4) Web JCLI – referred to. 2.6 In India the statute must not only pass the test of reasonableness as contained in Article 14 of the Constitution of India but also the `liberty’ clause contained in Article 21 of the Constitution of India. Placing persuasive burden on the accused persons must justify the loss of protection which will be suffered by the accused. Fairness and reasonableness of trial as also maintenance of the individual dignity of the accused must be uppermost in the court’s mind. [Paras 83 and 84] [425-G, 426-A,B] R. v. Johnstone (2003) 3 All ER 884 – referred to. 3.1 A fundamental error has been committed by the High Court in placing explicit reliance upon Section 108 of the Customs Act. Every proceeding in terms of sub-section (4) of Section 108 would be a judicial proceeding within the meaning of Sections 193 and 228 IPC. The enquiry contemplated under Section 108 is for the purpose of Customs Act and not for the purpose of convicting an accused under any other statute including the provisions of the Act. [Paras 87 and 88] [427-F,G, 428-A] 3.2 The High Court should have considered the question having regard to the stand taken by the appellant that the confessions made by him were under threat and distress and not made voluntarily. Only because certain personal facts known to him were written, the same by itself would not lead to the conclusion that they were free and voluntary. [Para 90] [428-C] 3.3 Clause (3) of Article 20 of the Constitution provides that no person accused of any offence shall be compelled to be a witness against himself. Any confession made under Section 108 of the Customs Act must give way to Article 20(3) wherefor there is a conflict between the two.[Para 91] [428-D,E] 3.4 A retracted confessional statement may be relied upon but a rider must be attached thereto namely if it is made voluntarily. The burden of proving that such a confession was made voluntarily would, thus, be on the prosecution. [Para 91] [428-E] 3.5 The extent of right to a fair trail of an accused must be determined keeping in view the fundamental rights as adumbrated under Article 21 of the Constitution of India as also the International Convention and Covenants chartered in Human Rights. Criminal justice delivery system prevailing in India lacks mechanisms to remedy systemic violations of the accused’s core constitutional rights which include the right to effective assistance of counsel, the right to have exculpatory evidence disclosed, and the right to be free from suggestive eyewitness identifications, coerced custodial interrogation and the fabrication of evidence. [Para 94] [430-A,B,C] Aggregation in Criminal Law by Brandon L. Garrett April 2007 California Law Review Vol. 95 No.2 page 385 at 393 – referred to. 3.6 When, however, the custom officers exercise their power under Customs Act, it is not exercising its power as an officer to check smuggling of goods; it acts for the purpose of detection of crime and bringing an accused to book. [Para 95] [430-D] State of Punjab v. Barkat Ram AIR 1962 SC 276- referred to 3.7 Section 25 of the Evidence Act was enacted to put a stop to the extortion of confession, by taking away from the police officers as the advantage of proving such extorted confession during the trial of accused persons. [Para 97] [431-F,G] Queen Empress v. Babulal ILR (1884) 6 All. 509 – referred to. 3.8 NDPS Act is a complete code by itself. The customs officers have been clothed with the powers of police officers under NDPS Act. It does not, therefore, deal only with a matter of imposition of penalty or an order of confiscation of the properties under the Act but also with the offences having serious consequences. Section 53 of NDPS Act empowers the customs officers with the powers of the Station House Officers. An officer invested with the power of a police officer by reason of a special statute in terms of sub-section (2) of Section 53 would, thus, be deemed to be police officers and for the said purposes of Section 25 of Evidence Act shall be applicable. A legal fiction must be given its full effect. [Paras 98, 99and 100] [431-G, 432-A,B,C] UCO Bank and Anr. v. Rajinder Lal Capoor 2008 (6) SCALE 1 – referred to. 3.9 Section 53A of NDPS Act makes such a statement relevant for the purposes of the said Act. The observations of the High Court that confession can be the sole basis of conviction in view of Section 108 of the Customs Act, thus, appear to be incorrect. the provisions of the Customs Act cannot be applied to seek conviction thereunder. [Paras 101 and 103] [432-D,G] Alok Nath Dutta v. State of West Bengal 2006 (13) SCALE 467; Pon Adithan v. Deputy Director, Narcotics Control Bureau, Madras 1999 (6) SCC 1 – relied on. Balkrishna Chhaganlal Soni v. State of West Bengal 1974 (3) SCC 567; Babubhai Udesinh Parmar v. State of Gujarat, 2006 (12) SCC 268 – referred to. 3.10 A search and seizure or an arrest made for the purpose of proceeding against a person under the Act cannot be different only because in one case the authority was appointed under the Customs Act and in the other under another. What is relevant is the purpose for which such arrest or search and seizure is made and investigation is carried out. The law applicable in this behalf must be certain and uniform. [Para 106] [433-F,G] 3.11 Even otherwise Section 138B of Customs Act must be read as a provision containing certain important features, namely: (a) There should be in the first instance statement made and signed by a person before a competent custom official. (b) It must have been made during the course of enquiry and proceedings under the Customs Act. [Para 107] [433-G, 434-A,B] 3.12 Confessional statement of an accused, therefore, cannot be made use of in any manner under Section 138B of the Customs Act. Even otherwise such an evidence is considered to be of weak nature. [Para 108] [434-F,G] Gopal Govind Chogale v. Assistant Collector of Central Excise and Anr. 1985 (2) Bom CR 499 – referred to. 4.1 There are a large number of discrepancies in the treatment and disposal of the physical evidence. There are contradictions in the statements of official witnesses. Non-examination of independent witnesses and the nature of confession and the circumstances of the recording of such confession do not lead to the conclusion of the appellant’s guilt. Finding on the discrepancies although if individually examined may not be fatal to the case of the prosecution but if cumulative view of the scenario is taken, the prosecution’s case must be held to be lacking in credibility. [Para 151] [452-D,E,F,G] 4.2 The cardboard carton was not produced in court being allegedly missing. No convincing explanation was rendered in that behalf. The inference was drawn only on the basis of a mere assertion of the witness without any corroboration. No explanation has been given as to what happened to the container. Its absence significantly undermines the case of the prosecution. It reduces the evidentiary value of the statements made by the witnesses referring the fact of recovery of the contraband therefrom. [Para 110 and 111] [435-D, 436-A,C] 4.3 Preservance of original wrappers comes within the purview of the direction issued in terms of Section 3.1 of the Standing Order No. 1 of 1989. The guidelines such as those present in the Standing Order cannot be blatantly flouted and substantial compliance therewith must be insisted upon for so that sanctity of physical evidence in such cases remains intact. Clearly, there has been no substantial compliance of these guidelines by the investigating authority which leads to drawing of an adverse inference against them to the effect that had such evidence been produced, the same would have gone against the prosecution. [Paras 112 and 117] [436-D, 438-G, 439-A] Moni Shankar v. Union of India and Anr. 2008 (3) SCC 484; State of Kerala and Ors. v. Kurian Abraham (P) Ltd. and Anr. 2008 (3) SCC 582; Union of India v. Azadi Bachao Andolan 2004 (10) SCC 1 – relied on. Chief Commercial Manager, South Central Railway, Secunderabad and Ors. v. G. Ratnam and Ors. 2007 (8) SCC 212 – referred to. 4.4 The bulk quantity of heroin allegedly recovered indisputably has also not been produced in court. Respondents contended that the same had been destroyed. However, on what authority it was done is not clear. Law requires that such an authority must flow from an order passed by the Magistrate u/s. 52 of NDPS Act. Such an order whereupon reliance has been placed is Exhibit PJ; on a bare perusal whereof, it is apparent that at no point of time any prayer had been made for destruction of the said goods or disposal thereof otherwise. What was necessary was a certificate envisaged under Section 110(1B) of Customs Act. An order was required to be passed under the aforementioned provision providing for authentication, inventory etc. The same does not contain within its mandate any direction as regards destruction. [Para 118] [439-B,C,D] 4.5 There is a distinction between Section 110(1B) of Customs Act and Section 52A(2) of NDPS Act as sub-section (4) thereof, namely, that the former does not contain any provision like sub-section (4) of Section 52A. It is of some importance to notice that paragraph 3.9 of the Standing Order requires pre-trial disposal of drugs to be obtained in terms of Section 52A of NDPS Act. Exhibit PJ can be treated as nothing other than an order of authentication as it is a certificate under Section 110(1B) of Customs Act as the aspect of disposal clearly provided for under Section 52A of the Act is not alluded to. [Para 121] [440-F,G] 4.6 Pre-trial disposal of drugs is not permissile on certificate obtained u/s 110 (1B) of Customs Act. Firstly because taking recourse to the purported general practice adopted by the Customs Department is not envisaged in regard to prosecution under the Act. Secondly, no such general practice has been spoken of by any witness. A statement made at the Bar as regards existence of such a purported general practice cannot be a substitute of evidence whereupon only the court could rely upon. [Para 122] [441-F,G, 442-A] 4.7 Physical evidence relating to three samples taken from the bulk amount of heroin were also not produced. Even if it is accepted for the sake of argument that the bulk quantity was destroyed, the samples were essential to be produced and proved as primary evidence for the purpose of establishing the fact of recovery of heroin as envisaged under Section 52A of the Act. [Para 124] [442-D,E] 4.8 A slight difference in the weight of the sample may not be held to be so crucial as to disregard the entire prosecution case as ordinarily an officer in a public place would not be carrying a good scale with him. Here, however, the scenario is different. The place of seizure was an airport. The officers carrying out the search and seizure were from the Customs Department. They must be having good scales with them as a marginal increase or decrease of quantity of imported articles whether contraband or otherwise may make a huge difference under the Customs Act. [Para 126] [443-A,B,C] 4.9 Physical evidence of a case of this nature being the property of the court should have been treated to be sacrosanct. Non-production thereof would warrant drawing of a negative inference within the meaning of Section 114(g) of the Evidence Act. While there are such a large number of discrepancies, if a cumulative effect thereto is taken into consideration on the basis whereof the permissive inference would be that serious doubts are created with respect of the prosecution’s endeavour to prove the fact of possession of contraband from the appellant. [Para 48] [443-F,G] Jitendra v. State of U.P. 2004 (10) SCC 562 – relied on. 4.10 Several other lacunae in the prosecution case had been brought to the notice of the Court. The samples had been kept at the airport for a period of three days. They were not deposited at the malkhana. It was obligatory on the part of the Customs Department to keep the same in the safe custody. There are gaping flaws in the treatment, disposal and production of the physical evidence and the conclusion that the same was in safe custody required thorough evidence on the part of the prosecution which suggests that the sanctity of the physical evidence was not faulted. It was not done in the present case. [Paras 130 and 131] [444-C,D,E,F] 4.11 The sample, thus, with only a seal of custom by itself cannot be stated to be one recovered from the appellant specially when the prosecution case is that it contained accused’s signature and date of it which is not found on the original. The independent witnesses did not sign the samples. The original seal was not produced. It is a mystery to whom the seal was entrusted. Thus, the change in colour, weight of the sample as also the absence of the accused’s signature thereupon cannot be totally ignored. The seal was not even deposited in the malkhana. As no explanation whatsoever has been offered in this behalf, it is difficult to hold that sanctity of the recovery was ensured. Even the malkhana register was not produced. There exist discrepancies also in regard to the time of recovery. [Paras 133, 135 and 136] [445-G, 446-A,B, 447-E,F,G] State of Punjab v. Baldev Singh, 1999 (3) SCC 977 – relied on. 4.12 Although examination of independent witnesses in all situations may not be imperative, if they were material, in terms of Section 114(e) of the Evidence Act, an adverse inference could be drawn. In a case of his nature, where there are a large number of discrepancies, the appellant has been gravely prejudiced by their non-examination. It is true that what matters is the quality of the evidence and not the quantity thereof but in a case of this nature where procedural safeguards were required to be strictly complied with, it is for the prosecution to explain why the material witnesses (independent witnesses) had not been examined. [Paras 138 and 139] [449-C,D,E] 4.13 Article 12 of the Universal Declaration of Human Rights provides for the Right to a fair trial. Such rights are enshrined in our Constitutional Scheme being Article 21 of the Constitution of India. If an accused has a right of fair trial, his case must be examined keeping in view the ordinary law of the land. The courts, in order to do justice between the parties, must examine the materials brought on record in each case on its own merits. Marshalling and appreciation of evidence must be done strictly in accordance with the well known legal principles governing the same; wherefor the provisions of the Code of Criminal Procedure and Evidence Act must be followed. Appreciation of evidence must be done on the basis of materials on record and not on the basis of some reports which have nothing to do with the occurrence in question. [Paras 143, 144 and 145] [450-D,E,F,G] 4.14 Exbt PA indicates that the gazetted officer or the independent witnesses were not present at the time of purported recovery. Exhibit PC, however, shows the presence of independent witnesses at the time of recovery. The credibility of the statements, having regard to these vital discrepancies stand eroded. [Para 148] [451-D,E] 4.15 The High Court disregarded that although Exhibit PA may not affect a technical compliance of Section 50 of the Act on taking a complete and circumspect view of the materials brought on record, but the same, affect the credibility of the documentary evidence and the statements of the official witnesses, namely, PW1 and PW2. If origin of principle has not been followed and discrepancies and contradictions have occurred in the statements of PW1 and PW2 the same would cause doubt on the credibility of prosecution case and their claim of upholding procedure established by law in effecting recovery. [Para 150] [451-G, 452-A,B] State of Himachal Pradesh v. Pawan Kumar 2005 (4) SCC 350 – distinguished. State of Punjab v. Baldev Singh, 1999 (3) SCC 977; D.K. Basu v. State of West Bengal 1997 (1) SCC 416 – referred to Miranda v. Arizona 1966 (384) US 436- referred to. 5. There is necessity of disposal of such cases as quickly as possible. The High Courts should be well advised to device ways and means for stopping recurrence of such a case where a person undergoes entire sentence before he gets an opportunity of hearing before this Court. [Para 152] [453 B-C] Tanu Bedi, D.P. Singh, Sanjay Jain, Rajat Vohra, Prayanat Singh, Rachana Golchha and Sunil Roy for the Appellant. Vikas Sharma and B.V. Balaramdas (for B. Krishna Prasad) for the Respondent. Kuldip Singh and A.K, Mehta for the state.
IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 1034 OF 2008 [Arising out of SLP (Crl.) No. 5597 of 2006] Noor Aga …Appellant Versus State of Punjab & Anr. …Respondents JUDGMENT S.B. SINHA, J : Leave granted. INTRODUCTION Several questions of grave importance including the constitutional validity of the Narcotic Drugs … Continue reading
Indian Partnership Act, 1932: ss.42 and 4 – Deemed dissolution of firm – Two partners – Death of one partner – LRs of deceased partner not interested in continuing the firm or in constituting a fresh firm – Effect of – Held: Since there were only two partners constituting the partnership firm, on death of one of them, there was deemed dissolution of the firm, despite existence of a clause in the partnership deed which said otherwise – A partnership is a contract between partners – There cannot be any contract unilaterally without acceptance by the other partner – LRs of the deceased partner could not be asked to continue the partnership, as there was no legal obligation upon them to do so, as partnership is not a matter of heritable status but purely one of contract, which is also clear from definition of partnership under s.4. ss.14 and 48 – Property of firm – Partnership firm, constituted for construction of a cinema theatre, consisted of two partners – While the first partner offered her land for construction of cinema theatre, the second partner constructed cinema theatre and other allied constructions by procuring funds – Deemed dissolution of the firm in view of death of the first partner – Distribution of residual property amongst the partners – Held: On facts, there was no intention from either partner to treat the land, building, structures etc. as properties of the firm – As the partnership got dissolved on death of a partner, it would be reasonable to allow both the parties to take their respective properties – First partner entitled to exclusive possession of the land while second partner entitled to take away the movables and recover the value of buildings and structure embedded to the land. Appeal – Second appeal – New plea – Question of law, based on pleadings and evidence on record, not raised before lower courts – Held: Such question of law can be permitted for the first time before the High Court. Constitution of India, 1950 – Article 136 – Powers under – Not to be exercised, until grave injustice is shown to be caused to the aggrieved party by way of the impugned order. The partnership firm in question, constituted for construction of a cinema theatre, consisted of two partners. One of the partners filed suit for dissolution of the partnership firm alleging that the other partner mismanaged the business of the firm, manipulated the account books and stopped payment of the minimum guarantee profit, as envisaged under the partnership deed, to the plaintiff-partner. In terms of the partnership deed, the plaintiff-partner offered her land for construction of the cinema theatre, while the defendant-partner constructed the cinema theatre and other allied constructions by procuring necessary funds. During pendency of the suit, the plaintiff-partner died and her legal representatives, i.e. the appellants, were brought on record. The trial court held that there was deemed dissolution of the partnership firm due to death of the plaintiff-partner, and since the appellants were not agreeable to enter into partnership with the defendant-partner, they were entitled for rendition of accounts and to be handed over the entire cinema theatre with allied structures as per the deed of partnership. Meanwhile the defendant-partner also died, and his legal representatives, i.e. the respondents were brought on record before the First Appellate Court, which confirmed the decree passed by the trial court. The respondents filed appeal before the High Court, which also held that the partnership firm stood dissolved on account of death of one of the partners, but permitted the respondents to take away the movables from the cinema theatre and recover the value of the building and structures embedded to the land. On a combined reading of the terms of the partnership deed, the High Court held that the land and the cinema were not the properties of the firm but were properties of the respective parties, and thus the appellants were entitled to exclusive possession of the land and the respondents were entitled to take away the projectors and other machineries, the furnitures and all other items, which can be safely removed from their place and that the appellants should pay the respondents the value of the remaining portions of the structures which could not be removed without any damage, after proper valuation of the same. In appeal to this Court, the questions which arose for consideration were: 1) whether the High Court erred in permitting the respondents in raising a question for the first time in second appeal, which was not in the pleadings before the Trial Court or the First Appellate Court; 2) whether the High Court erred in holding that there had been dissolution of the partnership firm on account of death of a partner and 3) whether the High Court also erred in permitting the Respondents to remove the movables from the cinema theatre. =Dismissing the appeals, the Court HELD: 1. The contention that the High Court erred in permitting the respondents to raise a new plea for the first time in the second appeal has no substance. The new plea which was allegedly raised before the High Court for the first time was that all assets of the firm including the land and building is to be dealt with under Section 48 of the Partnership Act, 1932 and the proceeds is to be disbursed to the two partners in accordance with the respective shares as per the partnership deed. The High Court had dismissed this plea. The Respondents did not appeal against the said finding of the High Court. That apart, when a question of law is raised on the basis of the pleadings and evidence on record which might not have been raised before the courts below, it is difficult to hold that such question of law cannot be permitted for the first time before the High Court. Therefore, one fails to see how the Appellants are aggrieved by this finding of the High Court even assuming the High Court had formulated a new question of law, which was not raised before the Courts below. There is thus no scope for exercise of powers by this Court under Article 136 of the Constitution. [Paras 17 and 19] [889-g-h; 890-a-c; 891-a-b] Santakumari & Ors. v. Lakshmi Amma Janaki Amma (D) By Lrs. & Ors. (2000) 7 SCC 60, relied on. Hardayal Gir v. Sohna Ram 1970 (3) SCC 635 and Chandra Singh v. State of Rajasthan (2003) 6 SCC 545, referred to. 2.1. Dissolution of a partnership firm on account of death of one of the partners is subject to the contract entered into by the parties. Though Clause 22 of the Partnership deed herein reads that “the partnership deed shall be in force for a period of 42 years certain from this date and the death of any partner shall not have the effect of dissolving the firm”, this clause clearly states that death of any partner shall not have the effect of dissolving the firm. However, in the facts and circumstances of the case, absolute effect to this clause cannot be given. [Paras 22 and 23] [892-a-d] 2.2. When there are only two partners constituting the partnership firm, on the death of one of them, the firm is deemed to be dissolved despite the existence of a clause which says otherwise. A partnership is a contract between the partners. There cannot be any contract unilaterally without the acceptance by the other partner. The appellants, the legal representatives of the deceased partner were not at all interested in continuing the firm or constitute a fresh firm and they cannot be asked to continue the partnership, as there is no legal obligation upon them to do so as partnership is not a matter of heritable status but purely one of contract, which is also clear from the definition of partnership under Section 4 of the Partnership Act, 1932. Therefore, the trial court was justified in holding that the firm dissolved by virtue of death of one of the partners and the first appellate court as well as the High Court have taken the correct view in upholding the same. [Para 26] [893-d-f] Smt. S. Parvathammal v. CIT 1987 Income Tax Reports 161, approved. 3. As to the issue related to removing the movables from the Cinema and allowing the Respondents to recover the value of the building and structures embedded to the land, from the appellants, it is true that there was no intention from either of the parties to treat these properties as the properties of the firm. A careful perusal of Clause 24 of the Partnership Deed clearly indicates that the land as well as the building with the fixtures etc., to be vested with the plaintiff-partner (since deceased), after the expiry of term of 42 years. It is also true that directing the delivery of the entire property to the appellants would cause prejudice to the rights of the Respondents and would put him to loss. As the partnership got dissolved on the death of the plaintiff-partner, it would be reasonable to allow both the parties to take their respective properties. The appellants are entitled to the exclusive possession of the land and the respondents are entitled to take away the movables from the property and recover the value of the buildings and structure embedded to the land. It has to be assessed by the technically qualified person. The appellants are liable to pay the value of the remaining structures after adjusting the amount if any due to the appellants. [Paras 27 and 41] [893- g; 897-h; 898-a-d] Arjun Kanoji Tankar v. Santaram Kanoji Tankar (1969) 3 SCC 555; Arm Group Enterprises Ltd. v. Waldorf Restaurant (2003) 6 SCC 432; Commissioner of Income Tax, Madhya Pradesh v. Dewas Cine Corporation (1968) 2 SCR 173; Narayanappa v. Krishtappa (1966) 3 SCR 400; Malabar Fisheries Co. Calicut v. CIT (1979) 4 SCC 766 and S.V. Chandra Pandian v. S.V. Sivalinga Nadar (1993) 1 SCC 589, referred to. Mills v. Clarke 1953 (1) AER 779, referred to. Halsbury’s Law of England, 4th Edition, referred to. Case Law Reference: AIR 1978 AP 257 referred to Para 4 1970 (3) SCC 635 referred to Para 18 (2003) 6 SCC 545 referred to Para 19 (2000) 7 SCC 60 relied on Para 19 1987 ITR 161 approved Para 25 (1969) 3 SCC 555 referred to Para 31 (2003) 6 SCC 432 referred to Para 32 1953 (1) AER 779 referred to Para 34 (1968) 2 SCR 173 referred to Para 36 (1966) 3 SCR 400 referred to Para 38 (1979) 4 SCC 766 referred to Para 39 (1993) 1 SCC 589 referred to Para 39 CIVIL APPELLATE JURISDICTION : Civil Appeal No.6933-6934 of 2002. From the Judgment & Order dated 9.4.2002 of the High Court of Judicature, Andhra Pradesh at Hyderabad in A.S. Nos. 1048 & 1050 of 2001. WITH C.A. Nos. 4411-4412 of 2002. Dr. K. Parasaran, Rakesh Dwivedi, R.F. Nariman, A.D.N. Rao, A. Subba Rao, Roy Abraham, Kishore Rai, Seema Jain, Anant Prakash, Shantanu Krishna, Mukti Choudhary, Preetika Dwivedi, Rahul Dua, Himinder Lal for the appearing parties.
REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NOS. 6933-6934 OF 2002 Mohd. Laiquiddin & Anr. ..Appellants Versus Kamala Devi Misra (Dead) By L.Rs & Ors. ..Respondents WITH CIVIL APPEAL NOS. 4411-4412 of 2002 Smt. Kamala Devi Misra (Dead) By L.Rs & Ors .Appellants Versus Mohd. Laiquiddin Khan & Anr. ..Respondents … Continue reading
Employees’ State Insurance Act, 1948 – ss. 45A and 2(9) – Employee – Payment of ESI contributions – Co-operative Milk Producer’s Societies engaged in purchase of milk and pasteurization of the same – Workers employed by contractors in performance of contract awarded to them for transportation of milk – Liability of Milk societies to pay ESI contribution in respect of the workers – Held: Not liable – Workers employed by contractors in performance of contract awarded to them for transportation of milk, not covered by the definition of `employee’ u/s. 2(9) – No evidence to show that workers who did loading and unloading of milk cans were directly employed by Milk Societies – Also they are not employed on the premises of Milk Societies – Said workers did not work under the supervision of Milk Societies . Words and phrases: Expression `supervision’ – Meaning of – In the context of s. 2(9) of the Employees’ State Insurance Act, 1948. The appellants Co-operative Milk Producer’s Societies, namely HCMPSU Ltd. and BURDCMPS Union, were engaged in purchase of milk and pasteurization of the same. The appellant awarded contract for transportation of milk for a specific period at a particular rate to the contractor. The contractor employed workers for the same. The inspection of the appellant’s establishment was carried out. The concerned authority passed an order u/s. 45A of the Employees’ State Insurance Act, 1948 calling upon the appellants to pay contribution in respect of workers employed for transportation and procurement of milk together with interest. The appellant challenged the order before the Employees’ State Insurance Court and the same was dismissed. The High Court upheld the order. Hence the appeals. =Allowing the appeals, the Court HELD: 1.1 Merely being employed in connection with the work of an establishment, in itself, does not entitle a person to be an `employee’; he must not only be employed in connection with the work of the establishment but also be shown to be employed in one or other of the three categories mentioned in s. 2(9) of the Employees’ State Insurance Act, 1948. [Para 17] [251-A-B] Royal Talkies, Hyderabad and Others v. Employees State Insurance Corporation (1978) 4 SCC 204, relied on. Regional Director, Employees’ State Insurance Corpn., Madras v. South India Flour Mills (P) Ltd. (1986) 3 SCC 238; Kirloskar Brother Ltd. v. Employees’ State Insurance Corporation (1996) 2 SCC 682; Rajakamal Transport and Another v. Employees’ State Insurance Corporation, Hyderabad (1996) 9 SCC 644; Transport Corporation of India v. Employees’ State Insurance Corporation and Another (2000) 1 SCC 332; M/s. Saraswat Films v. Regional Director, E.S.I. Corporation Trichur JT 2002 (Suppl 1) SC 454, referred to. 1.2. It is not the case of any of the parties nor there is any evidence to show that the persons who did loading and unloading were directly employed by the appellants. Section 2(9)(i) is, therefore clearly not attracted as it covers the workers who are directly employed by the principal employer. Clause (ii) of s. 2(9) requires either (a) that the person to be an employee should be employed on the premises of the factory or establishment, or (b) that the work is done by the person employed under the supervision of the principal employer or his agent on work which is ordinarily part of the factory or establishment or which is preliminary to the work carried on in or incidental to the purpose of the factory or establishment. The expression “on the premises of the factory or establishment” comprehends presence of the persons on the premises of the factory or establishment for execution of the principal activity of the industrial establishment and not casual or occasional presence. [Para 18] [251-C-F] 1.3. For the purposes of loading and unloading the milk cans, the truck driver and loaders enter the premises of the appellants but mere entry for such purpose cannot be treated as an employment of those persons on the premises of the factory or establishment. The said expression does not comprehend every person who enters the factory for whatever purpose. This is not and can never be said to be the purpose of the expression. The persons employed by the contractor for loading and unloading of milk cans are not the persons employed on the premises of the appellants’ establishment. [Para 18] [251-F-H; 252-A] 2.1. Although, E.S.I. Court in respect of the appellants in separate orders, recorded a finding that such workers work under the supervision of the principal employer and the said finding has not been interfered with by the High Court but it is difficult to accept the said finding. The ordinary meaning of the word `supervision’ is `authority to direct’ or `supervise’ i.e., to oversee. The expression `supervision of the principal employer’ u/s. 2(9) means something more than mere exercise of some remote or indirect control over the activities or the work of the workers. Supervision for the purposes of s. 2(9) is `consistency of vigil’ by the principal employer so that if need be, remedial measures may be taken or suitable directions may be given for satisfactory completion of work. A direct disciplinary control by the principal employer over the workers engaged by the contractors may also be covered by the expression `supervision of the principal employer’. The circumstances, as in the case of HCMPSU Ltd., that the authorized representatives of the principal employer are entitled to travel in the vehicle of the contractor free of charge or in the case of BURDCMPS Union, that the principal employer has right to ask for removal of such workers who misbehave with their staff are not the circumstances which may even remotely suggest the control or interference exercised by the appellants over the workers engaged by the contractor for transportation of milk. From the agreements entered into by the appellants with the contractors, it does not transpire that the appellants have arrogated to themselves any supervisory control over the workers employed by the contractors. The said workers were under the direct control of the contractor. Exercise of supervision and issue of some direction by the principal employer over the activities of the contractor and his employees is inevitable in contracts of this nature and that by itself is not sufficient to make the principal employer liable. That the contractor is not an agent of the principal employer u/s. 2(9)(ii) admits of no ambiguity. [Para 22] [254-B-H; 255-A-B] 2.2. No evidence was collected by the E.S.I. Corporation during the inspection of the appellants’ establishments or from the contractors that the appellants have any say over the terms and conditions of employment of these employees or that the appellants have any thing to do with logistic operations of the contractors. As a matter of fact, there is nothing on record to show that principal employer had any knowledge about the number of persons engaged by the contractors or the names or the other details of such persons. There is also no evidence that the appellants were aware of the amount payable to each of these workers. In the circumstances, even if it be held that the transportation of milk is incidental to the purpose of factory or establishment, for want of any supervision of the appellants on the work of such employees, these employees are not covered by the definition of `employee’ u/s. 2(9) of the Act. [Para 22] [255-A-D] C.E.S.C. Limited and Ors. v. Subhash Chandra Bose and Ors. (1992) 1 SCC 441, relied on. Halsbury’s Laws of England (Hailsham Edition) Vol. I p 145, para 350, referred to. Case Law Reference: (1986) 3 SCC 238 Referred to. Para 13 (1996) 2 SCC 682 Referred to. Para 13 (1996) 9 SCC 644 Referred to. Para 13 (2000) 1 SCC 332 Referred to. Para 13 JT 2002 (Suppl 1) SC 454 Referred to. Para 13 (1978) 4 SCC 204 Relied on. Para 18 (1992) 1 SCC 441 Relied on. Para 22 CIVIL APPELLATE JURISDICTION : Civil Appeal No. 3816 of 2010. From the Judgment & Order dated 28.9.2005 of the High Court of Karnataka at Bangalore in MFA No. 2349 of 2004. WITH C.A. No.3817 of 2010. A.S. Bhasme and Nikhil Nayyar for the Appellant. V.J. Francis and Sanjeev Anand for the Respondent.
REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 3816 OF 2010 (Arising out of SLP(C) No. 746 of 2006) The Managing Director, Hassan Co-operative Milk Producer’s Society Union Limited …Appellant Versus The Assistant Regional Director Employees State Insurance Corporation …Respondent WITH CIVIL APPEAL NO. 3817 OF 2010 (Arising out of … Continue reading
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