This tag is associated with 78 posts

compounding of offence under Section 211(7) of the Companies Act.= Now the question is whether in the aforesaid circumstances the Company Law Board can compound offence punishable with fine or imprisonment or both without permission of the court. It is pointed out that when the prosecution has been laid, it is the criminal court which is in seisin of the matter and it is only the magistrate or the court in seisin of the matter who can accord permission to compound the offence.= “621A. Composition of certain offences.- (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), any offence punishable under this Act whether committed by a company or any officer thereof, not being an offence punishable with imprisonment only, or with imprisonment and also with fine, may, either before or after the institution of any prosecution, be compounded by- (a) the Company Law Board; or (b) where the maximum amount of fine which may be imposed for such offence does not exceed five thousand rupees, by the Regional Director, on payment or credit, by the company or the officer, as the case may be, to the Central Government of such sum as that Board or the Regional Director, as the case may be, may specify: Provided that the sum so specified shall not, in any case, exceed the maximum amount of the fine which may be imposed for the offence so compounded: Provided further that in specifying the sum required to be paid or credited for the compounding of an offence under this sub-section, the sum, if any, paid by way of additional fee under Sub-section (2) of Section 611 shall be taken into account. xx xx xx (4)(a) Every application for the compounding of an offence shall be made to the Registrar who shall forward the same, together with his comments thereon, to the Company Law Board or the Regional Director, as the case may be. (b) Where any offence is compounded under this section, whether before or after the institution of any prosecution, an intimation thereof shall be given by the company to the Registrar within seven days from the date on which the offence is so compounded. (c) Where any offence is compounded before the institution of any prosecution, no prosecution shall be instituted in relation to such offence, either by the Registrar or by any shareholder of the company or by any person authorised by the Central Government against the offender in relation to whom the offence is so compounded. (d) Where the composition of any offence is made after the institution of any prosecution, such composition shall be brought by the Registrar in writing, to the notice of the Court in which the prosecution is pending and on such notice of the composition of the offence being given, the company or its officer in relation to whom the offence is so compounded shall be discharged. xx xx xx (7) Notwithstanding anything contained in the Code of Criminal Procedure, 1973,- (a) any offence which is punishable under this Act with imprisonment or with fine, or with both, shall be compoundable with the permission of the Court, in accordance with the procedure laid down in that Act for compounding of offences; (b) any offence which is punishable under this Act with imprisonment only or with imprisonment and also with fine shall not be compoundable. (8) No offence specified in this section shall be compounded except under and in accordance with the provisions of this section.”= The legislature in its wisdom has not put the rider of prior permission of the court before compounding the offence by the Company Law Board and in case the contention of the appellant is accepted, same would amount to addition of the words “with the prior permission of the court” in the Act, which is not permissible. As is well settled, while interpreting the provisions of a statute, the court avoids rejection or addition of words and resort to that only in exceptional circumstances to achieve the purpose of Act or give purposeful meaning. It is also a cardinal rule of interpretation that words, phrases and sentences are to be given their natural, plain and clear meaning. When the language is clear and unambiguous, it must be interpreted in an ordinary sense and no addition or alteration of the words or expressions used is permissible. As observed earlier, the aforesaid enactment was brought in view of the need of leniency in the administration of the Act because a large number of defaults are of technical nature and many defaults occurred because of the complex nature of the provision. From what we have observed above, we are of the opinion that the power under sub-section (1) and sub-section (7) of Section 621A are parallel powers to be exercised by the Company Law Board or the authorities mentioned therein and prior permission of Court is not necessary for compounding the offence, when power of compounding is exercised by the Company Law Board. In view of what we have observed above, the order impugned does not require any interference by this Court. In the result, we do not find any merit in the appeal and it is dismissed accordingly but without any order as to costs.

Page 1 REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 2102 OF 2004 V.L.S. FINANCE LTD. …APPELLANT VERSUS UNION OF INDIA & ORS. …RESPONDENTS JUDGMENT CHANDRAMAULI KR. PRASAD,J. This appeal by special leave arises out of an order dated 5th of November, 2003 passed by the Company Judge, Delhi High Court … Continue reading

“1. Whether the use of beacons red-light and sirens by persons other than high constitutional functionaries is lawful and constitutional? 2. Whether the provision of security to persons other than the constitutional functionaries without corresponding increase in sanctioned strength and without a specific assessment of threat is lawful and constitutional? 3. Whether the closure of roads for facilitating movement of VIPs is lawful and constitutional?”

‘ ITEM NO.305 COURT NO.3 SECTION XI S U P R E M E C O U R T O F I N D I ARECORD OF PROCEEDINGS Petition(s) for Special Leave to Appeal (Civil) No(s).25237/2010 (From the judgement and order dated 21/08/2009 in CMWP No.15440/1998 of TheHIGH COURT OF JUDICATURE AT ALLAHABAD) ABHAY SINGH Petitioner(s)VERSUSSTATE … Continue reading

INJUNCTION TO RESTRAIN TELECAST OF T.V. SERIAL TELECAST = the proposed telecast of the Episode Nos.214-215 of “CRIME PATROL DASTAK”, in which the dramatised version of “JBT TEACHERS RECRUITMENT SCAM” is to be broadcast,= once the trial has been completed and the Petitioners have been convicted and, thereafter, arrested, there is no further possibility of any bias against them at the time of hearing of the appeal. The contents of the trial and the ultimate judgment of conviction and sentence is now in the public domain and is available for anyone to see.= Without going into the question of the right of freedom of speech of the maker of the Television Episodes, we are convinced that no interference is called for with the order of the Division Bench of the High Court, setting aside the order of the learned Single Judge. However, in order to safeguard the interests of the Petitioners, we are also of the view that certain restrictions can be imposed at the time of the screening of the said Episodes. Accordingly, the Producers, Directors and Distributors and all those connected with the screening of the aforesaid Episodes on television, shall ensure that there is no direct similarity of the characters in the Serial with the Petitioners, who have been convicted in connection with the JBT Teachers Recruitment and had been sentenced to different periods of custody, and that steps are taken to protect their identity, as far as possible. 18. The Special Leave Petition is dismissed with the aforesaid observations.

  ‘ REPORTABLE   IN THE SUPREME COURT OF INDIA   CIVIL APPELLATE JURISDICTION   SPECIAL LEAVE PETITION(CIVIL) NO.9967 OF 2013   Vidya Dhar & Ors. Petitioners   Versus   Multi Screen Media Pvt. Ltd. Respondent   J U D G M E N T   ALTAMAS KABIR, C.J.I.   1. The three petitioners before … Continue reading

discrimination towards female child – “यत्र ना्यरस्तुपूज्यन्ते रमन्ते तत्र देवता:” [“Yatra naryastu pujyante ramante tatra dewatah”] (where woman is worshipped, there is abode of God). We have mentioned about dowry thrice, because this demand is made on three occasions: (i) before marriage; (ii) at the time of marriage; and (iii) after the marriage. Greed being limitless, the demands become insatiable in many cases, followed by torture on the girl, leading to either suicide in some cases or murder in some.”- “I am the child. All the word waits for my coming. All the earth watches with interest to see what I shall become. Civilization hangs in the balance. For what I am, the world of tomorrow will be. I am the child. You hold in your hand my destiny. You determine, largely, whether I shall succeed or fail, Give me, I pray you, these things that make for happiness.- The persons involved in such awareness campaign are required to equip themselves with constitutional concepts, culture, philosophy, religion, scriptural commands and injunctions, the mandate of the law as engrafted under the Act and above all the development of modern science. It needs no special emphasis to state that in awareness camps while the deterrent facets of law are required to be accentuated upon, simultaneously the desirability of law to be followed with spiritual obeisance, regard being had to the purpose of the Act, has to be stressed upon. The seemly synchronization shall bring the required effect. That apart, documentary films can be shown to highlight the need; and instill the idea in the mind of the public at large, for when mind becomes strong, mountains do melt. The people involved in the awareness campaigns should have boldness and courage. There should not be any iota of confusion or perplexity in their thought or action. They should treat it as a problem and think that a problem has to be understood in a proper manner to afford a solution. They should bear in mind that they are required to change the mindset of the people, the grammar of the society and unacceptable beliefs inherent in the populace. It should be clearly spelt out that female foeticide is the worst type of dehumanisation of the human race. 23. I have highlighted the aforesaid aspects so that when awareness campaigns are held, they are kept in view, for that is the object and purpose to have real awareness. 24. The matter be listed as directed.

Page 1 1 Reportable IN THE SUPREME COURT OF INDIA EXTRAORDINARY CIVIL WRIT JURISDICTION WRIT PETITION (CIVIL) NO. 349 OF 2006 Voluntary Health Association of Punjab ..Petitioner Versus Union of India & Others .. Respondents O R D E R Indian society’s discrimination towards female child still exists due to various reasons which has its roots … Continue reading

Land Acquisition Act, – Notification under Section 4 of the Land Acquisition Act, 1894 (hereinafter referred to as the ‘Act’) was issued on 5.3.1963 in respect of the land admeasuring 139 bighas and 2 biswas including the aforesaid land of the appellant. A declaration under Section 6 of the Act was made in respect of the said land on 22.8.1963. The Land Acquisition Collector made the award under the Act on 29.11.1963. However, no award was made in respect of the land measuring 23 bighas and 7 biswas including the suit land as it had been shown to be the land of Central Government. However, the possession of the land in respect of which the award was made and the land transferred to the appellant was also taken and the Union of India handed it over to 2Page 3 Delhi Electric Supply Units (for short ‘DESU’) for the construction of staff quarters on 5.7.1966. The appellant claimed to have been deprived of the land without paying any compensation whatsoever, thus, there was a regular correspondence by the appellant – In a welfare State, statutory authorities are bound, not only to pay adequate compensation, but there is also a legal obligation upon them to rehabilitate such persons. The nonfulfillment of their obligations would tantamount to forcing the said uprooted persons to become vagabonds or to indulge in anti-national activities as such sentiments would be born in them on account of such ill-treatment. Therefore, it is not permissible for any welfare State to uproot a person and deprive him of his 9Page 10 fundamental/constitutional/human rights, under the garb of industrial development. The appellants have been deprived of their legitimate dues for about half a century. In such a fact-situation, we fail to understand for which class of citizens, the Constitution provides guarantees and rights in this regard and what is the exact percentage of the citizens of this country, to whom Constitutional/statutory benefits are accorded, in accordance with the law”. 11. The instant case is squarely covered by the aforesaid judgment in Tukaram’s case (supra) and thus, entitled for restoration of possession of the land in dispute. However, considering the fact that the possession of the land was taken over about half a century ago and stood completely developed as Ms. Ahlawat, learned counsel has submitted that a full-fledged residential colony of employees of DESU has been constructed thereon, therefore, it would be difficult for respondent no.1 to restore the possession. 12. In such a fact-situation, the only option left out to the respondents is to make the award treating Section 4 notification as, on this date, i.e. 12.2.2013 and we direct the Land Acquisition Collector to make the award after hearing the parties within a period of four 1Page 11 months from today. For that purpose, the parties are directed to appear before Land Acquisition Collector, C/o The Deputy Commissioner, South M.B. Road, Saket, New Delhi on 26.2.2013. The appellant is at liberty to file a reference under Section 18 of the Act and to pursue the remedies available to him under the Act. Needless to say that the appellant shall be entitled to all statutory benefits. 13. With these directions, the appeals are allowed. The judgments impugned herein are set aside. C.A. No. 203/2004 14. In view of the order passed in C.A. Nos. 204-205/2004, the appeal is dismissed.

Page 1 REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NOS. 204-205 OF 2004 Bhimandas Ambwani (D) Thr. Lrs. …Appellant Versus Delhi Power Company Limited …Respondents with C.A. No. 203/2004 O R D E R CIVIL APPEAL NOS. 204-205 OF 2004 1. These appeals have been preferred against the impugned judgment and … Continue reading

Penal Code 1860, Sections 304-A, 88, 92, 93-Criminal Liability for Medical Negligence-Death due to medical negligence-Criminal liability of doctor-Held, to prosecute a medical professional for criminal negligence it must be shown that the accused doctor did something or failed to do something which in the given facts and circumstances no medical professional in his ordinary senses and prudence would have done or failed to do-Hazard taken by the accused doctor should be of such a nature that the resultant injury was most likely imminent-On facts, held, doctor can not be proceeded against under S. 304-A as it is a case of non-availability of oxygen cylinder-Rationale for special treatment of doctOTHERS discussed in detail and guidelines laid down to protect interest of doctOTHERS, and to save them from unwarranted and malicious proceedings. Sections 304-A, 88, 92, 93-Mens rea in criminal negligence-Held, for negligence to amount to a criminal offence, the element of mens rea must be shown to exist- Recklessness, i. e. disregard for the possible consequences, constitutes the mens rea in criminal negligence. Section 304-A-Negligence-As a tort and criminal negligence-Nature of Negligence required-Held, to fasten liability in criminal law, degree of negligence has to be higher than negligence enough to fasten liability for damages in civil law-For criminal libility, the negligence has to be gross or of a very high degree-Expression “rash and negligent act” to be reads qualified by “grossly”. 304-A-Liability under-When attracted-Held, death must be direct result of act of accused-Such act must be causa causans-Not enough if it is cause sine qua non-Criminal Law-Negligence-Causation. Section 304-A-Res ipsa loquitor-Applicability in criminal law-Held, this rule cannot be applied for determining per se the liability for negligence in criminal law and case under section 304-A cannot be decided solely by applying this rule. Tort-Professional negligence-Scope of-Held, a professional may be held liable for negligence if he was not possessed of the requisite skill which he professed to have possessed, or he did not exercise the skill which he possessed with reasonable competence in the given case-Standard of care required is of the ordinary competent person exercising ordinary skill in that profession-Test laid down in Bolam’s case held, applicable in India. Professional negligence distinguished from occupational negligence. Tort-Negligence-Medical Neglicence-Detailed explanation of when devation from normal medical practice would amount to evidence of medical negligence. Tort-Negligence-Res ipsa loquitor-Application to Medical Practioners-Held, has to be applied with extreme care and caution to the cases of medical negilgence. Complainant’s father was admitted to the hospital. He felt difficulty in breathing. Duty nurse called some doctor to attend to the patient. No doctor turned up for 20-25 minutes. Then the appellant and another doctor came to the patients room. An oxygen cylinder was brought and connected to the mouth of the patient but the breathing problem increased further. The oxygen cylinder was found to be empty. There was no other gas cylinder available. Later, the patient was declared dead. An offence under sections 304-A/34 Penal Code, 1860 was registered and charges filed against the doctOTHERS. Doctor’s petition to High Court to quash the charges was dismissed. Hence the appeal. Citation: 2005 AIR 3799,2005(2 )Suppl.SCR383 ,2005(6 )SCC300 ,2005(6 )SCALE173 ,2005(6 )JT614Allowing the appeal, the Court HELD : 1.1. Negligence in the context of medical profession necessarily calls for a treatment with a difference. To infer rashness or negligence on the part of a professional, in particular a doctor, additional considerations apply. A case of occupational negligence is different from one of professional negligence. A simple lack of care, an error of judgment or an accident, is not proof of negligence on the part of a medical professional. So long as a doctor follows a practice acceptable to the medical profession of that day, he cannot be held liable for negligence merely because a better alternative course or method of treatment was also available or simply because a more skilled doctor would not have chosen to follow or resort to that practice or procedure which the accused followed. When it comes to the failute of taking precautions what has to bee seen is whether those precautions were taken which the ordinary experience of men has found to be sufficient; a failure to use special or extraordinary precautions which might have prevented the particular happening cannot be the standard for judging the alleged negligence. So also, the standard of care, while assessing the practice as adopted, is judged in the light of knowledge available at the time of the incident, and not at the date of trial. Similarly, when the charge of negligence arises out of failure to use some particular equipment, the charge would fail if the equipment was not generally available at that particular time (that is, the time of the incident) at which it is suggested it should have been used. [338-B-F] 1.2. A professional may be held liable for negligence on one of the two findings: either he was not possessed of the requisite skill which he professed to have possessed, or, he did not exercise, with reasonable competence in the given case, the skill which he did possess. The standard to be applied for judging, whether the person charged has been negligent or not, would be that of an ordinary competent person exercising ordinary skill in that profession. It is not possible for every professional to posses the highest level of expertise or skills in that branch which he practices. A highly skilled professional may be possessed of better qualities, but that cannot be made the basis or the yardstick for judging the performance of the professional proceeded against on indictment of negligence. The test for determining medical negligence as laid down in Bolam’s case [1957] 1 W.L.R. 582, holds good in its applicability in India. [338-F-H; 339-A] Micheal Hyde and Associates v. J.D. William & Co., [2001] PNLR 233; Bolam v. Friern Hospital Management Committee, [1957] 1WLR 582 Eckersley v. Binnie, [1988] 18 Con LR 1; Hucks v. Cole, [1968] 118 New LJ 469; Maynard v. West Midlands Regional Health Authority, [1985] 1 All ER 635 and Hunter v. Hanley, [1995] SLT 213, relied on. Suresh Gupta (Dr.) v. Govt. of NCT of Delhi, [2004] 6 SCC 422; John Oni Akerele v. R., AIR (1943) PC 72; Kurban Hussein Mohammedali Rangwalla v. State of Maharashtra, [1965] 2 SCR 622; Kishan Chand v. State of Haryana, [1970] 3 SCC 904; Juggankhan v. State of M.P., [1965] 1 SCR 14 and Emperor v. Omkar Rampratap, (1902) 4 Bom LR 679, relied on. Dr. Laxman Balkrishna Joshi v. Dr. Trimbak Bapu Godbole, [1969] 1 SCR 206; Indian Medical Association v. V.P. Shantha, [1995] 6 SCC 651; Poonam Verma v. Ashwin Patel, [1996] 4 SCC 332; Achutrao Haribhau Khodwa v. State of Maharashtra, [1996] 2 SCC 634; Spring Meadows Hospital v. Harjot Ahluwalia, [1998] 4 SCC 39; Whitehouse v. Jorden, (1981) 1 ALL ER 267 and State of Haryana v. Santra, [2005] 5 SCC 182, referred to. 2.1. The jurisprudential concept of negligence differs in civil and criminal law. What may be negligence in civil law may not necessarily be negligence in criminal law. Generally speaking, it is the amount of damages incurred which is determinative of the extent of liability in tort; but in criminal law it is not the amount of damages but the amount and degree of negligence that is determinative of liability. For negligence to amount to an offence, the element of mens rea must be shown to exist. It is recklessness that constitutes mens rea in criminal law as far as negligence is concerned. The moral culpability of recklessness is not located in a desire to cause harm. It resides in the proximity of the reckless state of mind to the state of mind present when there is an intention to cause harm. There is, in other words, a disregard for the possible consequences. For an act to amount to criminal negligence, the degree of negligence should be much higher i.e. gross or of a very high degree. Negligence which is neither gross nor of a higher degree may provide a ground for action in civil law but cannot form the basis for prosecution. [318-C, E, H; 319-A; 320-C; 339-A-B] 2.2. The word `gross’ has not been used in Section 304A of IPC, yet it is settled that in criminal law negligence or recklessness, to be so held, must be of such a high degree as to be `gross’. The expression `rash or negligent act’ as occurring in Section 304A of the IPC has to be read as qualified by the word `grossly’. To impose criminal liability under Section 304-A IPC, it is necessary that the death should have been the direct result of a rash and negligent act of the accused, and that act must be the proximate and efficient cause without the intervention of another’s negligence. [332-C-D; 339-C-D] 2.3. To prosecute a medical professional for negligence under criminal law it must be shown that the accused did something or failed to do something which in the given facts and circumstances no medical professional in his ordinary senses and prudence would have done or failed to do. The hazard taken by the accused doctor should be of such a nature that the injury which resulted was most likely imminent. [339-D-E] R. v. Lawrence, [1981] 1 All ER 974; R. v. Caldwell, [1981] 1 All ER 961; Andrews v. Director of Public Prosecutions, (1937) AC 576; Syad Akbarnr v. State of Karnataka, [1980] 1 SCC 30; Reg v. lndu Beg, [1881] 3All 776 Riddell v. Raid, [1942] 2 All ER 161; Bhalchandra Waman Pathe v. State of Maharashtra, (1968) Mah LJ 423 (SC), relied on. Roscoe’s Law of Evidence (15th Edn.), pp. 848-49; “Speeches and Poems with the Report and Notes on the Indian Penal Code” by Lord Macaulay (Houghton Mifflin and Company, published in 1874), pp. 419, 421 & 422; Alan Merry and Alexander McCall Smith ErrOTHERS, Medicine and the Law (Cambridge University Press, 2001), pp. 241-248, relied on. 3. Res ipsa loquitur is only a rule of evidence and operates in the domain of civil law specially in cases of torts and helps in determining the onus of proof in actions relating to negligence. It cannot be pressed in service for determining per se the liability for negligence within the domain of criminal law. Res ipsa loquitur has, if at all, a limited application in trial on a charge of criminal negligence. [339-E-F] Syad Akbar v. State of Karnataka, [1980] 1 SCC 30, relied on Krishnan v. State of Kerala, [1996] 10 SCC 508, explained, 4. To protect the interest of doctOTHERS and to save them from unwarranted and malicious proceedings, statutory Rules or Executive Instructions incorporating certain guidelines need to be framed and issued by the Government of India and/or the State Governments in consultation with the Medical Council of India. So long as it is not done, the following guidelines will be in force which should govern the prosecution of doctOTHERS for offences of which criminal rashness or criminal negligence is an ingredient. A private complaint may not be entertained unless the complainant has produced prima facie evidence before the Court in the form of a credible opinion given by another competent doctor to support the charge of rashness or negligence on the part of the accused doctor. The investigating officer should, before proceeding against the doctor accused of rash or negligent act or omission, obtain an independent and competent medical opinion preferably from a doctor in government service qualified in that branch of medical practice who can normally be expected to give an impartial and unbiased opinion applying Bolam’s test to the facts collected in the investigation. A doctor accused of rashness or negligence, may not be arrested in a routine manner, unless his arrest is necessary for furthering the investigation or for collecting evidence or unless the investigation officer feels satisfied that the doctor proceeded against would not make himself available to face the prosecution unless arrested. [340-F-H; 341-A-B] 5. In the present case all the averments made in the complaint, even if held to be proved, do not make out a case of criminal rashness or negligence on the part of the accused-appellant. It is not the case of the complainant that the accused-appellant was not a doctor qualified to treat the patient whom he agreed to treat. It is a case of non-availability of oxygen cylinders either because of the hospital having failed to keep available a gas cylinder or because of the gas cylinder being found empty. Then, probably the hospital may or may not be liable in civil law but the accused-appellant cannot be proceeded against under Section 304-A IPC on the parameters of the Bolam test. [341-C-E] G.E. Vahanvati, Rakesh Dwivedi, Ashok H. Desai, Vivek K. Tankha, Rupinder Singh Suri, Mrs. Gurvinder Suri, Jagjit Singh Chhabra, Atul Nanda, Addl. Advocate General for State of Punjab, Bimal Roy Jad, P.N. Puri, Maninder Singh, Kirtiman Singh, Saurabh Mishra, Angad Mirdha, Mrs. Pratibha M. Singh, Devadatt Kamat, Ms. Rameeja Hakem, Chinmoy Pradip Sharma, Hrishikesh Barua, Ms. Suruchi Suri, Ravinder Narain, Ms. Sushma Sharma, Ms. Meghalee Barthakur, Ms.Kanika Gamber, Rajan Narain, Harekhrishna Upadhyaya, Prashant Kumar, Siddharth Singh Chauhan, Harsh Pathak, A.A. Maitrya, Praveen Khattar, Mrs. Sudha Gupta, Avik Datt and V. K. Monga for the appearing parties.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 21 CASE NO.: Appeal (crl.) 144-145 of 2004 PETITIONER: Jacob Mathew RESPONDENT: State of Punjab & Anr. DATE OF JUDGMENT: 05/08/2005 BENCH: CJI R.C. LAHOTI,G.P. MATHUR & P.K.BALASUBRAMANYAN JUDGMENT: J U D G M E N T R.C. LAHOTI, CJI Ashok Kumar Sharma, the respondent no.2 herein … Continue reading

Avalon Resorts (P) Ltd. and Holiday Solutions = Although the word ‘Red’ has not been defined anywhere, yet according to the opposite party the word ‘Red’ means summer season commencing from 15th week of the year and continues till 33rd week of every year. – It is difficult to fathom as to why the petitioner should pay the maintenance allowance when he has not utilized such facility. One is supposed to pay the allowance when the thing is utilized by him. The termination of the notice on this ground is illegal. -The opposite parties are entitled to get the rent @10000/- per year from 2001 to 2012. The total comes to Rs.1,10,000/-. It is made clear that the complainant can avail the facility for the next 21 years from today. Before availing the opportunity, he can inform the opposite parties. The complainant is also entitled to rent out the said apartment for one week to any person for which the respondent will not raise any objection but in that case, the complainant shall be responsible for the maintenance. The complainant will not pay any maintenance allowance for the year when he does not utilized the facility for a particular year but otherwise he must pay the maintenance allowance. We, therefore, modify the judgment and direct the petitioner to pay Rs.11,000/- with interest at the rate of 9% from the date of filing of this complaint till its realization. The complainant can avail the facility for the next 21 years. Accordingly, both the revision petitions are disposed of.

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI   REVISION PETITION NO.  4318 OF  2012  (Against the order dated 31.08.2012 in First Appeal No. 1280 of 2007 of the Punjab State Consumer Disputes Redressal Commission, Chandigarh) Shri Harwinder Singh Randhawa S/o Shri Sohan Singh R/o E/293, Ranjit Avenue Amritsar (Punjab)                                              … Petitioner Versus 1. Avalon Resorts (P) Ltd. Empire Estate, Mehrauli–Gurgaon Road Sultanpur, New Delhi-110030 2. Holiday Solutions, GH-14/34, Ist Floor, Pashchim Vihar New Delhi-110063                                         … Respondents … Continue reading

licences – shops in dispute admeasuring 4.22 sq. yards upto 100 sq. yards situated at Qutub Road, Sadar Bazar, Delhi = the High Court dismissed the said writ petitions challenging the notice dated 25.5.1987, issued by the Divisional Railway Manager, Northern Railway, calling upon the appellants to pay the licence fee for the railway property in their use, at the enhanced rate, and also letter dated 29.7.1987, terminating licences to operate the shops in question and to vacate the premises for failing to deposit outstanding dues on account of non-payment of licence fee. = We are of the considered opinion that no fault can be found with the aforesaid observations and no interference is required. The enhanced license fee cannot be held to be unreasonable or arbitrary, and as warranting any interference by a court of equity. 8. Undoubtedly, the enhanced license fee being 13 times, the earlier license fee amount seems excessive, and such an observation was also made by the Hon’ble Railway Minister in order dated 11.4.1981, but the enhanced license fee would be illusory if the same is compared with the prevailing license fee in the said market as applicable to private shops. A welfare state must serve larger public interest. “Salus Populi Suprema lex”, means that the welfare of the people is the supreme law. A state instrumentality must serve the society as a whole, and must not grant unwarranted favour(s) to a particular class of people without any justification, at the cost of others. However, in order to serve larger public interest, the State instrumentality must be able to generate its own resources, as it cannot serve such higher purpose while in deficit. Merely because the appellants have been occupying the suit premises for a prolonged period of time, they cannot claim any special privilege. In the absence of any proof of violation of their rights, such concession cannot be granted to them.- The High Court has observed that the letter/notice dated 7.8.1980, enhancing the rate of license fee remains unchallenged, and therefore, the application of notice dated 25.5.1987, with retrospective effect is justified. This finding is not factually correct. Notice dated 7.8.1980, enhancing the license fee was received by the appellants, and representations were filed by them through their Association, raising all their grievances to the effect that during a period of 30 years, the license fee paid by them had been enhanced about 15 to 20 times, without any justification and hence, they demanded justice. The same were considered by the then Railway Minister, and orders dated 26.9.1980 and 11.4.1981 were passed by him, observing that the license fee may be revised after every 5 years on the basis of justice and equity. Certain interim relief was also granted. Thus, in view of the above, we are of the opinion that the aforesaid demands should not have been made to apply with retrospective effect from the year 7-8-1980. In view of the above, the appeals succeed and are allowed partly, to the extent that notice dated 25.5.1987 must not be applied retrospectively, i.e., w.e.f. 7-8-1980. However, the enhanced license fee may be recovered from the appellants from the said date in accordance with law. With these observations, the appeals stand disposed of. Interim order passed earlier stands vacated. CA Nos.268-279, 263-266 & 248-262 of 2003 The abovesaid Civil Appeals stand disposed of in terms of the judgment passed in Civil Appeal Nos.243-247 of 2003.

REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NOs. 243-247 OF 2003 Lala Ram (D) by L.R. & Ors. …Appellants Versus Union of India & Anr. …Respondents With Civil Appeal Nos. 268-279, 263-266 & 248-262 of 2003 J U D G M E N T Dr. B. S. CHAUHAN, J. 1. … Continue reading

QUASHING OF FIR-under Section 482 of the Cr.P.C., the High Court was free to consider even material, that may be produced on behalf of the accused, to arrive at a decision whether the charge as framed could be maintained. = Dr. Monica Thapar fell ill. – Dr. Girish Kazi, a cardiologist. It was suspected, that she has a hole in her heart. Based on the aforesaid diagnosis, Dr. Dumaswala, another cardiologist, conducted Doppler echo-cardiography. The said echo-cardiography confirmed the presence of a large hole in her heart. On the advice of doctors who attended on Dr. Monica Thapar at Medical College, Surat, she was shifted to Urmil Heart and Lung Centre, Surat, on 24.9.1992. While at Urmil Heart and Lung Centre, Surat, Dr. Monica Thapar allegedly suffered a massive heart attack on 26.9.1992. The same supposedly proved fatal. 3. The factum of death of Dr. Monica Thapar was conveyed to the immediate family of Rajiv Thapar, as well as to the family of the deceased=Telephone bills demonstrate, that phone calls were regularly made from the residence of Rajiv Thapar (appellant no. 1), to the maternal family of Dr. Monica Thapar. The family of the husband of Dr. Monica Thapar was in consistent and regular contact with the other family members also. This relationship is shown to have been subsisting even at the time of the illness of Dr. Monica Thapar which proved to be fatal. Of utmost importance is a letter written by Rajiv Kapoor (the brother of the deceased, and the son of Madan Lal Kapoor, the respondent-complainant). In a letter dated 22.9.1992, just four days before the death of Dr. Monica Thapar (on 26.9.1992), Rajiv Kapoor showered praise on the immediate family of Rajiv Thapar residing at Delhi. His letter to his sister describes her in-laws in Delhi, as “very affectionate and very caring”. The telephone bills, as also the letter addressed by Rajiv Kapoor to his sister (Dr. Monica Thapar), are materials of sterling quality. Neither of the said materials has been controverted, either on veracity or on truthfulness. All this, in our opinion, would undoubtedly and inevitably result in concluding, that the relationship between the two families was cordial and affectionate. Clearly contrary to what has been alleged in the complaint. 30. Even though the statement of Dr. Pritu Dhalaria has been relied upon by the SDM, Delhi in the inquest report, which completely knocks out all the pleas advanced by Madan Lal Kapoor (the respondent-complainant), we are of the view, that it would be improper to make any reference thereto in deciding the present controversy. Reliance on the statement of Dr. Pritu Dhalaria would be permissible only after the same is recorded by a court on oath, whereupon, he has to be subjected to cross-examination. Only then, his statement would acquire credibility for reliance. Any fact situation based on the oral testimony, by one or the other party, cannot be the basis of a determination, akin to the one in hand. 31. We are persuaded to conclude from the facts and circumstances of the case exhaustively discussed in the foregoing paragraphs, that all the steps delineated in the paragraph 23 above, can be answered in the affirmative, on the basis of the material relied by the accused, more particularly, the post-mortem examination report dated 28.9.1992 conducted by a Medical Board comprising of four doctors, whose integrity has not been questioned by the respondent-complainant; the chemical analysis findings contained in the Central Forensic Science Laboratory’s report dated 9.2.1993 which has not been disputed by the respondent-complainant; the inquest report of the SDM, Delhi, dated 6.7.1993, findings whereof have been painstakingly recorded by involving the respondent-complainant; the letter of Rajiv Kapoor (the brother of the deceased) dated 22.9.1992 addressed to Dr. Monica Thapar just four days before her death, the contents and authenticity whereof are not subject matter of challenge at the hands of the respondent-complainant; and finally, the telephone bills produced by the appellants-accused substantiating consistent and regular contact between the rival families, which have not been questioned. We, therefore, have no hesitation in concluding, that the judicial conscience of the High Court ought to have persuaded it, on the basis of the material examined by it, to quash the criminal proceedings initiated against the appellants-accused. We, therefore, hereby quash the aforesaid proceedings. 32. Despite the conclusion recorded hereinabove, we are of the view, that in the facts and circumstances of this case, there should have been no difficulty whatsoever for the High Court to have exercised its judicial conscience for invoking the power vested in it under Section 482 of the Cr.P.C. From the narration of the facts recorded above, it emerges, that even though the respondent-complainant Madan Lal Kapoor, in his complaint dated 6.7.1993, adopted a clear and categoric stance, that his daughter Dr.Monica Thapar had been poisoned to death, before the Additional Sessions Judge, Delhi, the respondent-complainant ventured to suggest, that the appellants-accused had strangulated her. The Additional Sessions Judge, Delhi, summoned two of the doctors who were members of the Medical Board which had conducted the post-mortem examination, and sought clarifications from them. He also recorded the statement of one of the said doctors. The Additional Sessions Judge, thereupon, ruled out the plea of strangulation. When the respondent-complainant himself was uncertain about the manner in which his daughter had allegedly died, the High Court should have viewed the matter keeping in mind the likelihood of the hurt caused to a father who had lost his daughter within one year of her marriage. The matter needed to have been evaluated, on the basis of one of the parameters laid down in State of Haryana & Ors. Vs. Bhajan Lal & Ors., 1992 Supp. (1) SCC 335, namely, whether the criminal proceedings initiated by Madan Lal Kapoor (the respondent-complainant) were actuated by malice and ulterior motive for wreaking vengeance on the accused with a view to spite him due to some private/personal grudge. There is yet another reason emerging from the facts of the case which needed to be kept in mind. Madan Lal Kapoor (the respondent-complainant) had continued to represent before the SDM, Delhi, that he would produce the mother of the deceased, who knew the facts best of all. Despite that, the mother of the deceased did not appear in the inquest proceedings to record her statement, even though a number of opportunities were afforded to the respondent-complainant to produce her. The permissible inference is that he was himself not privy to the facts. The fact that the mother of the deceased had not appeared to record a statement against the appellants-accused has to have some reason/justification. Would a mother who believes that her daughter had been poisoned/strangulated, restrain herself from recording her statement,despite the persuasion of her husband? Probably not. The instant factual position has been recorded hereinabove, not for the sake of determination of the present controversy. In a factual situation not as clear as the one in hand, facts such as these, could be taken into consideration by a High Court for recording its satisfaction, on the parameters formulated above. 33. For the reasons recorded hereinabove, criminal proceedings against the appellants-accused are hereby set aside. The order of the High Court is accordingly also set aside, but on grounds different from those taken into consideration by the High Court. The instant appeal, accordingly succeeds.

“REPORTABLE” IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.__174___ OF 2013 (Arising out of SLP (Criminal) No. 4883 of 2008) Rajiv Thapar & Ors. …. Appellants Versus Madan Lal Kapoor …. Respondent J U D G M E N T JAGDISH SINGH KHEHAR, J. 1. Leave granted. 2. Rajiv Thapar (appellant … Continue reading

the first information report registered under Sections 328, 354 and 376 of the Indian Penal Code against the appellant-accused, and the consequential chargesheet dated 28.6.2007, as also the framing of charges by the Additional Sessions Judge, New Delhi on 1.12.2008, deserves to be quashed. The same are accordingly quashed. It was, therefore, that during the course of her medical examination at the AIIMS, a vaginal smear was not taken. Her clothes were also not sent for forensic examination by the AIIMS, because she had allegedly changed the clothes which she had worn at the time of occurrence. In the absence of any such scientific evidence, the proof of sexual intercourse between the complainant/prosecuterix and the appellant- accused would be based on an assertion made by the complainant/prosecuterix. And an unequivocal denial thereof, by the appellant-accused. – A consensual relationship without any assurance, obviously will not substantiate the offence under Section 376 of the Indian Penal Code, alleged against Prashant Bharti.

“REPORTABLE” IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 175 OF 2013 (Arising out of SLP (Criminal) No. 1800 OF 2009) Prashant Bharti …. Appellant Versus State of NCT of Delhi …. Respondent J U D G M E N T JAGDISH SINGH KHEHAR, J. 1. Leave granted. 2. On 16.2.2007, … Continue reading

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