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Intestate Succession to the property of a member of the Indian Christian Community IN the territories originally forming part of the erstwhile State of Travancore – Merger of State of Travancore with State of Cochin in July 1949 and enactment of Part States (Laws) Act, 1951 providing for extension of certain Parliamentary statutes to Part States Consequential effect of the extension of Indian Succession Act, 1925 – Whether the Indian Succession Act, 1925 or the old Travancore Cochin Succession Act 1092 (Kollan Era) will govern the intestate succession from the date of extension – Indian Succession Act, section 29(2), scope of – Legislative device of incorporation by reference, explained. = Prior to July 1949, the State of Travancore was a princely State and the law in force in the territories of that State in regard to intestate succession to the property of the members of the Indian Christian Community was the Travancore Christian Succession Act, 1092 (Kollan Era). Under the said Act, a widow or mother becoming entitled under sections 16, 17, 21 & 22 shall have only life interest terminable at death or on remarriage and a daughter shall not be entitled to succeed to the property of the intestate in the same share as the son but she will be entitled to one-fourth the value of the share of the son or Rs. 5000 whichever is less and even this amount she will not be entitled on intestacy, if Streedhanom was provided or promised to her by the intestate or in the life time of the intestate, either by his wife or husband or after the death of such wife or husband by her or his heirs. In or about July 1949, the former State of Travancore merged with the former State of Cochin to form Part State of Travancore-Cochin. With a view to bringing about uniforming of legislation in the whole of India, including Part-B States, Parliament enacted Part States (Laws) Act, 1951 providing 372 for extension to Part States certain Parliamentary Statutes prevailing in rest of India, including the Indian Succession Act, 1925. As to the impact of the extension of the Indian Succession Act, 1925, that is to sag, whether it impliedly repealed the Travancore-Christian Succession Act, 1092, divergent judicial opinions were handed over one by a Single Judge of the Madras High Court and the contrary one by the Division Bench of the Madras High Court and the former Travancore Cochin High Court. The petitioners therefore, have now challenged, under Article 32 of the Constitution, Sections 24, 28 and 29 of the Travancore Christian Act, 1092 as unconstitutional and void. Allowing the petitions, the Court, ^ HELD: 1.1 On the coming into force of Part-B States (Laws) Act, 1951 the Travancore & succession Act, 1092 stood repealed and Chapter II of Part V of the Indian Succession Act, 1925 became applicable and intestate succession to the property of members of the Indian Christian community in the territories of the erstwhile State of Travancore was thereafter governed by Chapter II of Part V of the Indian Succession Act, 1925. [382 D-E] 1.2 The Indian Succession Act, 1925 was enacted by Parliament with a view to consolidating the law applicable to intestate and testant succession. This Act being a consolidating Act replaced many enactments which were in force at that time dealing with intestate and testant succession including the Indian Succession Act, 1865. So far as Indian Christians are concerned, Chapter II of Part V contains rules relating to intestate succession and a fortiori on the extension of the Indian & Succession Act, 1925 to Part State of Travancore Cochin, the rules relating to intestate succession enacted in Chapter II of Part V would be applicable equally to Indian Christians in the territories of the former State of Travancore. [377 H, 378 A-B, F-G] 1.3 Sub-section 2 of section 29 of the Indian Succession Act, 1925 did not save the provisions of the Travancore Christian Succession Act, 1092 and therefore, it cannot be said that despite the extension of the Indian Succession Act, 1925 to Part State of Travancore-Cochin, the Travancore Christian Succession Act, 1092 continued to apply to Indian 373 Christians in the territories of the erstwhile State of Travancore. [378 H; 379 A-B] When the Indian Succession Act, 1925 was extended to Part-B State of Travancore-Cochin every Part of that Act was so extended including Chapter II of Part V and the Travancore Christian Succession Act, 1092 was a law corresponding to Chapter II of Part V, since both dealt with the same subject matter, namely, intestate succession among Indian Christians and covered the same field. me fact that Travancore Christian Succession Act, 1092 confined only to laying down rules of intestate succession among the Indian Christians while Indian Succession Act had a much wide coverage cannot lead to the conclusion that the Travancore Christian Succession Act, 1092 was not a law corresponding to the Indian Succession Act. Further by Section 6 of Part States (Laws) Act, 1951 the Travancore Christian Succession Act, 1092 stood repealed in its entirety. When section 6 of Part States (Laws) Act, 1951 provided in clear and unequivocal terms that the Travancore Christian Succession Act, 1092 which was a law in force in part States of Travancore-Cochin corresponding to Chapter II of Part V of the Indian Succession Act, 1925 shall stand repealed, it would be nothing short of subversion of the legislative intent to hold that the Travancore Christian Succession Act, 1092 did not stand repealed but was saved by section 29 sub- section (2) of the Indian Succession Act, 1925. [380 A-H; 381 A-B] Solomon v. Muthiah [1974] 1 M.L.J. Page 53; D. Chelliah v. G. Lalita Bai, A.I.R. 1978 (Madras) 66 (DB) referred to. 2. The legislative device of incorporation by reference is a well known device where the legislature instead of repeating the provisions of a particular statute in another statute incorporates such provisions in the latter statute by reference to the earlier statute. It is a legislative device adopted for the sake of convenience in order to avoid verbatim reproduction of the provisions of an earlier statute in a later statute. But when the legislature intends to adopt this legislative device the language used by it is entirely distinct and different from the one employed in section 29 sub-section (2) of the Indian Succession Act, 1925. The opening part of section 29 sub-section (2) is intended to be a qualificatory or excepting provision and not a provision for incorporation by reference. [381 H; 382 A-C] 374 Kurian Augusty v. Devasay Aley, A.I.R. 1957 Travancore Cochin Page 1 distinguished. =1986 AIR 1011, 1986( 1 )SCR 371, 1986( 2 )SCC 209, 1986( 1 )SCALE250 ,
PETITIONER: MRS. MARY ROY ETC. ETC. Vs. RESPONDENT: STATE OF KERALA & ORS. DATE OF JUDGMENT24/02/1986 BENCH: BHAGWATI, P.N. (CJ) BENCH: BHAGWATI, P.N. (CJ) PATHAK, R.S. CITATION: 1986 AIR 1011 1986 SCR (1) 371 1986 SCC (2) 209 1986 SCALE (1)250 ACT: Intestate Succession to the property of a member of the Indian Christian Community … Continue reading
Hindu law : Hindu Marriage Act, 1955 : Section 16. Void marriage-Children-Legitimacy of-Second marriage-Contract of-During subsistence of first marriage-Prior to commencement of Act-Void under S. 5 of Madras Marumakkattayam Act, 1932 then in force-Held : Children born of void second marriage entitled to inherit share in the properties of their parents by operation of amended S. 16. Section 16-Amendment-Legitimacy-Nature of-Pre-amended S. 16-Classified illegitimate children into two groups-Those born of void marriages contracted before Act-And those born of void marriages contracted after Act came into force-Held : Section 16 violative of Article 14 of the Constitution. Section 16-Amendment of-Position thereafter-Amendment removed the mischief and also delinked S. 11 from S. 16-Hence, amended S. 16 was constitutionally valid-It enacted legal fiction whereby illegitimate children were deemed legitimate-Thereby entitling them to succeed to properties of their parents. Madras Marumakkattayam Act, 1932 : Section 5-Polygamy-Void under-Act repealed by S. 7(2) of Kerala Joint Family System (Abolition) Act, 1975-Effect of–Contract of second marriage during lifetime of first wife-Prohibition under S. 5 would operate-Such second mamage would not be affected by the repeal by virtue of S. 4 of Kerala Interpretation and General Clauses Act, 1925-Kerala Joint Hindu Family System (Abolition) Act, 1975, S. 7(2)-Kerala Interpretation and General Clauses Act, 1925, S. 4. Constitution of India, 1950 : Article 14 : Statute-Constitutionality of-Presumption in favour of-Burden of proof is on person challenging constitutionality-To show arbitrary discrimination between persons similarly circumstanced-Presumption-Displacing of-By showing discrimination was apparent and manifest-Duty of Court to look to the statute as a whole to see if classification was valid having nexus with object sought to be achieved. Interpretation of Statutes : Interpretation-Subsidiary rules of-Legal fiction-Purpose of-Parties between whom it was to operate-To be ascertained by Court to give full effect to legislative intent and to carry the purpose to its logical end. Mischief Rule–Language having more than one meaning-Applicability of-Rule in Heydon’s case-When and how to be invoked-Non-obstante clause-Operation and interpretation of. RN contracted a second marriage with Appellant No. 1 during the lifetime of his first wife who was the mother of Respondents 1 to 9, in contravention of the prohibition of such a second marriage under Section 5 of Madras Marumakkattayam Act, 1932 which was then in force. The question before this Court was whether Appellants 2 to 6, who were the children born of the second marriage, would inherit any share in the properties left behind by RN after his death. =Allowing the appeal, this Court HELD : 1.1. Section 7(2) of Kerala Joint Hindu Family System (Abolition) Act, 1975 by which the Madras Marumakkattayam Act, 1932 was repealed does not indicate any intention contrary to the provisions contained in Kerala Interpretation and General Clause Act, 1925 which, will apply with full vigour on the principle that whenever there is a repeal of any enactment, the consequences indicated in Section 4 would follow, unless there was any saving clause in the repealing enactment or any other intention was expressed therein. In the case of a simple repeal, there is hardly any room for the expression of a contrary view. Repeal in the instant case is a case of repeal simplicitor. Hence, in view of section 4(b) of Kerala Interpretation and General Clauses Act, the previous operation of Madras Act will not be affected by the repeal nor will the repeal affect anything July done or suffered thereunder. So also, a liability incurred under that Act will remain unaffected and will not be obliterated by the repeal as indicated in Section 4(c). RN had contracted a second marriage, in the lifetime of his first wife, when Madras Act was in force, which prohibited a second marriage and, therefore, the consequences indicated in the Act that such a marriage would be void would not be affected nor will the previous operation of the Act be affected by the repeal of that Act. The repeal does not mean that Madras Act never existed on the Statute Book nor will the repeal have the effect of validating RN’s second marriage, if it was already a void marriage under that Act. [17-H, 18-A-D] Balakrishna Menon v. Asst. Controller of Estate. Duty, AIR (1971) SC 2390; Venugopala Ravi Verma v. Union of India, AIR (1969) SC 1094; Achuttan Nair v. C. Amma, AIR (1966) SC 411 and Padmavathy Amma v. Amnuni Panicker, AIR (1995) SC 2154, relied on. Bhaurao v. State of Maharashtra, AIR (1965) SC 1564 and Kochunni v. Kuttammni, AIR (1948) PC 47, referred to. 1.2. Since the Rule of Legitimacy under Section 16 of Hindu Marriage Act, 1955 (HMA) was made dependent upon the marriage (void or voidable) being annulled by a decree of annulment, the children born of such marriage, would continue to be illegitimate if the decree of annulment was not passed, which, incidentally, would always be the case if the parties did not approach the Court. The other result was that the illegitimate children came to be divided in two groups; those born of marriage held prior to the Act and those born of marriage after the Act. There was no distinction between these two groups of illegitimate children, but they came to suffer hostile legislative discrimination on account of the language employed therein. Indeed, language is an imperfect instrument for the expression of human thought. [27-E-G] 1.3. The object of Section 16. HMA was to protect legitimacy of children born of void or voidable marriages. In leaving out one group of illegitimate children from” being treated as legitimate, there did not appear to be any nexus between the object sought to be achieved by Section 16, HMA and the classification made in respect of illegitimate children similarly situate or circumstanced. Section 16, HMA was earlier linked with Sections 11 and 12, HMA. On account of the language employed in unamended Section 16 and its linkage with Sections 11 and 12, the provisions had the effect of dividing and classifying the illegitimate children into two groups without there being any nexus in the statutory provisions and the object sought to be achieved thereby. [27-H, 32-F-G] State v. Narsu Appa Mali, ILR (1951) Bombay 775; Srinivasa Iyer v. Saraswathi Ammal, ILR (1953) Madras 78 and G. Sambireddy v. G. Jayamina, AIR (1972) A.P. 156 referred to. 1.4. Legitimacy is a matter of status. Illegitimate children, on the contrary, are children as are not born either in lawful wedlock, or within a competent time after its determination. It is on account of marriage, valid or void, that children are classified as legitimate or illegitimate. That is to say, the social status of children is determined by the act of their parents. If they have entered into a valid marriage, the children are legitimate; but if the parents commit a folly, as a result of which a child is conceived, such child who comes into existence as an innocent human baby is labelled as illegitimate. Realising this situation, Parliament made a law which protected the legitimacy of such innocent children. [26-E, G-H] Ampthill Peerage Case, (1976) All ER 411and Salemi v. Minister for Immigration and Ethnic Affairs, (1977) 14 ALR 1 (7), referred to. “Commentaries on the Hindu Marriage Act, 1955” by K.P. Saksena; “Principles of Hindu Law” by Jogendra Chunder Ghose, 1903 Edn. and “Hindu Law of Marriage Stridhana”, 4th. Edn. (reprinted in India in 1984), referred to. 2.1. Whenever an enactment is attacked on the ground of discrimination, it becomes the duty of the court to look to the legislation as a whole and to find out why class legislation was introduced and what was the nexus between the classification and the object sought to be achieved by it. There is always a presumption that an Act made by the Parliament or the State Legislature is valid; so also there is a strong presumption in favour of the validity of legislative classification. It is for those who challenge the Act as unconstitutional to show and prove beyond all doubts that the legislature arbitrarily discriminated between different persons similarly circumstanced. This presumption, however, can be displaced by showing that the discrimination was so apparent and manifest that any proof was hardly required. Section 16, as originally enacted, fell under this category. To the extent it discriminated between two groups of illegitimate children in the matter of conferment of status of legitimacy, it was violative of Article 14. The vice or the mischief from which unamended Section 16 suffered has been removed or not is the next concern of this Court. [18-G, 30-E-G] 2.2. In order to give full effect to what was intended to be achieved by enacting Section 16, the Parliament intervened and amended Section 16. The words “notwithstanding that a marriage is null and void under Section 11” employed in Section 16(1) indicate undoubtedly the following: (a) Section 16(1) stands delinked from Section 11. (b) Provisions of Section 16(1) which intend to confer legitimacy on children born of void marriages will operate with full vigour in spite of Section 11 which nullifies only those marriages which are held after the enforcement of the Act and in the performance of which Section 5 is contravened. (c) Benefit of legitimacy has been conferred upon the children born either before or after the date on which Section 16(1) was amended. (d) Mischief or the vice which was the basis of unconstitutionality of unamended Section 16 has been effectively removed by amendment. (e) Section 16(1) now stands on its own strength and operates independently of other sections with the result that it is constitutionally valid as it does not discriminate between illegitimate children similarly circumstanced and classifies them as one group for conferment of legitimacy. Section 16, in its present form, is, therefore, not ultra vires the constitution. [33-C-F] K.P. Verghese v. Income-tax Officer, Emakulam and Anr, 131 ITR 597; Bengal Immunity Co. Ltd. v. Slate of Bihar, AIR (1955) SC 661; Goodyear India Ltd. v. State of Haryana, AIR (1990) SC 781; C.I.T., M.P. & Bhopal v. Sodra Devi, AIR (1857) SC 832; Union of India v. G.M. Kokil, [1984] Supp. SCC 196; Chandavarkar Sita Ratna Rao v. Ashalata S. Gumam, [1986] 4 SCC 447 (477); R.S. Ragunath v. State of Kamataka, [1992] 1 SCC 335; Heydon’s case (1584) 3 Co. Rep 7a; Mayfair Property Company, (1898) 2 Ch 28 (CA); Eastman Photographic Materials Company Ltd. v. Comptroller-General of Patents, Designs and Trade-Marks, (1898) AC 571, 576 (HL) and Munsell v. Olins, (1975) 1 All ER 16 (HL) p-29, referred to. T. Ramayammal v. T. Mathummal, AIR (1974) Mad. 321, approved. “Principles of Statutory Interpretation” By G.P. Singh, referred to. 3.1. Section 16 contains a legal fiction. It is by a rule of ‘ficto juris that the legislature has provided that children, though illegitimate, shall, nevertheless, be treated as legitimate notwithstanding that the marriage was void or voidable. [33-H] 3.2. In view of legal fiction contained in Section 16, the illegitimate children, for all practical purposes, including succession to the properties of their parents, have to be treated as legitimate. They cannot, however, succeed to the properties of any other relation on the basis of this rule, which in its operation, is limited to the properties of the parents. [34-E] 3.3. When an Act of Parliament or a State Legislature provides that something shall be deemed to exist of some status shall be deemed to have been acquired, which not have been so acquired or in existence but for the enactment, the Court is bound to ascertain the purpose for which the fiction was created and the parties between whom the fiction was to operation, so that full effect may be given to the intention of the legislature and the purpose may be carried to its logical conclusion. [34- A-B] M/s. J K Cotton Spg. & Wvg. Mills Ltd. v. Union of India, AIR (1988) SC 191, American Home Products Corporation \. Mac Laboratories, [1986] 1 SCC 465 and M. Venugopal v. Divisional Manager, LIC, [1994] 2 SCC 323, relied on. East End Dwellings Co. Ltd. v. Finsbury Borough Council, (1952) AC 109 B, referred to. 4. Appellants 2 to 6 were born prior to the date on which amendments were introduced in Section 16(1), and consequently they would, notwithstanding that the marriage between their parents had taken place at a time when there was a legislative prohibition on the second marriage, to be treated as legitimate, and would, therefore, inherit the properties of their father, RN, under Section 16(3) of the Act. [34-F-G] CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 5473-75 of 1995. =1996 AIR 1963, 1996( 2 )Suppl.SCR 1, 1996( 4 )SCC 76, 1996( 4 )SCALE131 , 1996( 4 )JT 656
PETITIONER: SMT. PARAYANKANDIYAL ERAVATHKANAPRAVAN KALLIANI AMMA & ORS . Vs. RESPONDENT: K. DEVI & ORS. DATE OF JUDGMENT: 26/04/1996 BENCH: AHMAD SAGHIR S. (J) BENCH: AHMAD SAGHIR S. (J) KULDIP SINGH (J) CITATION: 1996 AIR 1963 1996 SCC (4) 76 JT 1996 (4) 656 1996 SCALE (4)131 ACT: HEADNOTE: JUDGMENT: J U D G M … Continue reading
two months delay in disposal of representation of detenu is illegal and as such the detention order are not correct = an order of detention under Section 3 of the COFEPOSA was served on all the detenus on 10th March, 2011 on whose behalf petitions were filed before the High Court and therefore, their detention under the COFEPOSA commenced on and from 10th March, 2011. In these proceedings, we are not going into the merits of the grounds or the recitals thereof. 4. Before us, the detention of the appellants has been assailed on the question that the representations filed on behalf of the detenus were not disposed of in accordance with the mandate of Article 22(5) of the Constitution.
1 REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 2136 OF 2011 ARISING OUT OF SPECIAL LEAVE PETITION (CRL.) NO. 7953 OF 2011 UMMU SABEENA … APPELLANT VERSUS STATE OF KERALA & ORS. … RESPONDENTS WITH CRIMINAL APPEAL NO. 2137 OF 2011 ARISING OUT OF SPECIAL LEAVE PETITION (CRL.) NO. … Continue reading
Non- compoundable cases , if compromised, can be quashed under inherent powers =It is manifest that simply because an offence is not compoundable under Section 320 IPC is by itself no reason for the High Court to refuse exercise of its power under Section 482 Cr.P.C. That power can in our opinion be exercised in cases where there is no chance of recording a conviction against the accused and the entire exercise of a trial is destined to be an exercise in futility. There is a subtle distinction between compounding of offences by the parties before the trial Court or in appeal on one hand and the exercise of power by the High Court to quash the prosecution under Section 482 Cr.P.C. on the other. While a Court trying an accused or hearing an appeal 14
REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.2094 OF 2011 (Arising out of SLP (Crl.) No.9919 of 2010) Shiji @ Pappu and Ors. …Appellants Versus Radhika and Anr. …Respondents J U D G M E N T T.S. THAKUR, J. 1. Leave granted. 2. This appeal arises out of an … Continue reading
application of sec.324r/w 120 B of I.P.C.= there is nothing on record to establish meeting of minds between the appellant and the other accused. Assuming that the appellant had produced certain documents pertaining to the said auto rickshaw, it cannot be concluded on the basis thereof that he had entered into conspiracy with A1 to A3 to repossess the said auto rickshaw because the loan amount was not repaid and in pursuance thereto A1 to A3 murdered the driver of the said auto rickshaw. The evidence on record is totally inadequate to come to such a conclusion. It is, therefore, not possible to sustain the impugned judgment.
NON-REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.1221 OF 2005 SHERIMON … APPELLANT Versus STATE OF KERALA … RESPONDENT JUDGMENT (SMT.) RANJANA PRAKASH DESAI, J. 1. The appellant (original accused 4) along with three others (original accused 1, 2 & 3) was tried by the Additional Sessions Judge, Kottayam in … Continue reading
Code of Criminal Procedure, 1973 – s. 227 – Discharge – Retired IPS officer aged 85 years charge-sheeted u/s.302/34 IPC for killing a naxalite in a fake encounter, on basis of confession of a constable – Discharge petition u/s. 227 – Rejection of, by courts below – Held: s. 227 confers special power on the judge to discharge accused if upon consideration of records and documents `there is no sufficient ground’ for proceeding against accused – On facts, trial court after evaluating the materials produced by prosecution and after considering the probability of the case, dismissed the discharge petition and High Court upheld the same – Admissibility or acceptability of extra judicial confession made by constable before High Court in earlier proceedings is to be considered at the time of trial – Thus, orders of courts below does not call for interference – Penal Code, 1860 – s.302/34 – Evidence Act, 1872 – s. 30. Appellant is a retired IPS official aged about 85 years. Appellant along with the other accused were charge-sheeted in year 2002 for offence punishable u/s. 302 read with s. 34 IPC for killing a Naxalite in year 1970, in a fake encounter. Appellant-A3 filed a petition for discharge u/s. 227 of the Code of Criminal Procedure, 1973. Trial court dismissed the same and ordered for framing of charges against the appellant. Single Judge of High Court dismissed the revision petition. Hence the present appeal. =Dismissing the appeal, the Court HELD: 1.1 Section 227 of the Code of Criminal Procedure, 1973 confers special power on the Judge to discharge an accused at the threshold if upon consideration of the records and documents, he find that “there is not sufficient ground” for proceeding against the accused. His consideration of the record and document at that stage is for the limited purpose of ascertaining whether or not there is sufficient ground for proceeding against the accused. If the Judge comes to a conclusion that there is sufficient ground to proceed, he will frame a charge u/s. 228, if not, he will discharge the accused. This provision was introduced in the Code to avoid wastage of public time which did not disclose a prima facie case and to save the accused from avoidable harassment and expenditure. [Para 21] [93-E-H] 1.2. If two views are possible and one of them gives rise to suspicion only, as distinguished from grave suspicion, the trial judge will be empowered to discharge the accused and at this stage he is not to see whether the trial will end in conviction or acquittal. Further, the words “not sufficient ground for proceeding against the accused” clearly show that the judge is not a mere Post Office to frame the charge at the behest of the prosecution, but has to exercise his judicial mind to the facts of the case in order to determine whether a case for trial has been made out by the prosecution. In assessing this fact, it is not necessary for the Court to enter into the pros and cons of the matter or into a weighing and balancing of evidence and probabilities which is really the function of the Court, after the trial starts. At the stage of s. 227, the judge has merely to sift the evidence in order to find out whether or not there is sufficient ground for proceeding against the accused. The sufficiency of ground would take within its fold the nature of the evidence recorded by the police or the documents produced before the Court which ex facie disclose that there are suspicious circumstances against the accused so as to frame a charge against him. [Para 10] [86-C-H] 1.3. If on the basis of material on record the Court could form an opinion that the accused might have committed offence it can frame the charge, though for conviction the conclusion is required to be proved beyond reasonable doubt that the accused has committed the offence. At the time of framing of the charges the probative value of the material on record cannot be gone into, and the material brought on record by the prosecution has to be accepted as true. Before framing a charge the court must apply its judicial mind on the material placed on record and must be satisfied that the commission of offence by the accused was possible. Whether, in fact, the accused committed the offence, can only be decided in the trial. Charge may although be directed to be framed when there exists a strong suspicion but it is also trite that the Court must come to a prima facie finding that there exist some materials therefor. Suspicion alone, without anything more, cannot form the basis therefor or held to be sufficient for framing charge. [Para 14] [90-A-D] State of Bihar vs. Ramesh Singh (1977) 4 SCC 39; Union of India vs. Prafulla Kumar Samal (1979) 3 SCC 4; Niranjan Singh K.S. Punjabi vs. Jitendra Bhimraj Bijjaya (1990) 4 SCC 76; Soma Chakravarty vs. State through CBI (2007) 5 SCC 403, Relied on. 2.1. From 1970 till 1998, there was no allegation that the encounter was a fake encounter. In the year 1998, reports appeared in various newspapers in Kerala that the killing of the Naxalite in the year 1970 was in a fake encounter and that senior police officers are involved in the said fake encounter. Pursuant to the said news reports, several writ petitions were filed by various individuals and organizations before the High Court with a prayer that the investigation may be transferred to Central Bureau of Investigation. In the said writ petition, Constable-A1 filed a counter affidavit in which he made a confession that he had shot Naxalite on the instruction of the then Deputy Superintendent of Police-A2; and that the appellant was present when the incident occurred. Based on the assertion in the counter affidavit of the constable-A1, Single Judge of High Court passed an order entrusting an investigation to the CBI. CBI registered an FIR implicating the Constable, the DSP and the appellant as accused Nos. 1, 2 and 3 respectively for an offence u/s. 302/34 IPC. Constable-A1 is not alive and there is no question of joint trial by the prosecution against the other two accused along with A1. [Paras 16 and 18] [90-F-H; 91-A-C; 92- C] 2.2. Insofar as the admissibility or acceptability of the extra judicial confession in the form of counter affidavit made by the first accused before the High Court in the earlier proceedings are all matters to be considered at the time of trial. Their probative value, admissibility, reliability etc. are matters for evaluation after trial. The Additional Solicitor General rightly pointed out that apart from the confession, the statement of CW-6, CW-21, CW-31 and CW-32 are very well available and cannot be ignored lightly. All the above materials require sufficient scrutiny at the hands of the trial judge. [Para 20] [93-C-E] Mohd. Khalid vs. State of West Bengal (2002) 7 SCC 334; Hardeep Singh Sohal & Ors. vs. State of Punjab (2004) 11 SCC 612, referred to. 2.3. In the instant case, though, the trial judge has not assigned detailed reasons for dismissing the discharge petition filed u/s. 227, it is clear from his order that after consideration of the relevant materials charge had been framed for offence u/s. 302 read with s. 34 IPC and because of the same, he dismissed the discharge petition. After evaluating the materials produced by the prosecution and after considering the probability of the case, the judge being satisfied by the existence of sufficient grounds against the appellant and another accused framed a charge. Whether the materials at the hands of the prosecution are sufficient or not are matters for trial. At this stage, it cannot be claimed that there is no sufficient ground for proceeding against the appellant and discharge is the only remedy. Further, whether the trial will end in conviction or acquittal is also immaterial. All these relevant aspects have been carefully considered by the High Court and it rightly affirmed the order passed by the trial judge dismissing the discharge petition filed by the appellant-A3. The said conclusion are concurred with. [Para 22] [94-A-D] 2.4. Nothing is expressed on the merits of the claim made by both the parties and the conclusion of the High Court as well as this Court are confined only for disposal of the discharge petition filed by the appellant u/s. 227 of the Code. It is for the prosecution to establish its charge and the trial judge is at liberty to analyze and to arrive at an appropriate conclusion, one way or the other, in accordance with law. [Para 23] [94-E- F] Case Law Reference: (1977) 4 SCC 39 Relied on. Para 11 (1979) 3 SCC 4 Relied on. Para 12 (1990) 4 SCC 76 Relied on. Para 13 (2007) 5 SCC 403 Relied on. Para 14 (2002) 7 SCC 334 Referred to. Para 18 (2004) 11 SCC 612 Referred to. Para 19 CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No 192 of 2010. From the Judgment & Order dated 4.7.2007 of the High Court of Kerala at Ernakulam in Criminal Revision Petition No. 245 of 2007. Raghenth Basant, Liz Mathew, Senthil Jagadeesan for the Appellant. H.P. Raval, ASG, A. Mariarputham, P.K. Dey T. A. Khan Rajiv Nanda, Arvind Kr. Sharma, Dushyant Parashar, R. Sathish, P. Parmeswaran for the Respondents.
REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 192 OF 2010 (Arising out of S.L.P. (Crl.) No. 4708 of 2007) P. Vijayan …. Appellant (s) Versus State of Kerala & Anr. …. Respondent(s) JUDGMENT P. Sathasivam, J. 1) Leave granted. 2) This appeal is directed against the judgment and order … Continue reading
Constitution of India, 1950: Article 191(1)(c). Election- “Undischarged insolvent”-Disqualification-For election as MLA- Determination of-Held: Cannot be determined by High Court trying an election petition-A person has to be adjudged as insolvent under the Insolvency Act before attracting disqualification under Art. 191(1)(c)- Insolvency Act is a complete code and court constituted under that Act alone is competent to decide that question and not any court or authority- Dictionary or general meaning of “insolvency” has no relevance-The special meaning of “undischarged insolvent” under the law of insolvency is only applicable-The meaning of `insolvent’ under the Sale of Goods Act, 1930 irrelevant-Representation of the People Act, 1951, S.100. Article 191-Disqualification-Conditions for-Election as MLA-Held: Cannot be enlarged by importing any meaning other than permissible on a strict interpretation of the expressions used therein. Representation of the People Act, 1951: Section 100-Election-Election petition-Trial-High Court- Jurisdiction of- Held : Is limited to the extent conferred by the Act- Constitution of India, 1950, Art. 329(b). Election-Voting, electing and contesting-Rights of-Held: These are statutory rights circumscribed by limitation contained therein-Therefore, if the statutes clearly indicate the policy of law, it is not open to the court to interpret such statutes to find out the legislative intent of the provisions. Section 123-Election-Corrupt practices-Bribery-Allegation that the returned candidate using his position and status secured several bottles of rum from Military Canteen and supplied them in his constituency-Witnesses did not have any personal knowledge and came to know about the matter from the employee of the Military Canteen who was not examined-Held: In the absence of examination of the said employee, evidence is vague, not clear and definite much less reliable-Hence, High Court rightly held there was no acceptable evidence which could bring the case within the expression of “bribery” under S.123-Other allegations of corrupt practices also not established. Interpretation of Statutes: External aids-Dictionary meaning-Relevancy of- Held: If an expression has acquired a special connotation in law, it must be assumed that the legislature has used it in a legal sense, not according to dictionary or general meaning. External aids-Constituent Assembly Debates-Discussion in- Reference to- Implication of-Stated. Words and Phrases : “Undischarged insolvent”-Meaning of-In the context of Art. 191(1)(c) of the Constitution of India, 1950. Insolvent”-Meaning of-In the context of S. 2(8) of the Sale of Goods Act, 1930. “Bribery”-Meaning of-In the context of S.123 of the Representation of the People Act, 1951. The appellant was declared elected to State Legislative Assembly. The respondent, the defeated candidate, filed an election petition challenging the election of the appellant on the grounds that he was disqualified from being chosen as a MLA since he was an undischarged insolvent within the meaning of Article 191(l)(c) of the Constitution and that he had indulged in corrupt practices within the meaning of Section 123 of the Representation of the People Act, 1951. The respondent alleged that the appellant using his position and status secured several bottles of rum from a Military Canteen and supplied them in his constituency. The witnesses had no personal knowledge of the bottles being carried but they came to know about the matter from the employee of the Military Canteen who was not examined. The High Court held that the expression “undischarged insolvent” which was not defined in the Provincial Insolvency Act, 1920 should be given its natural meaning, instead of a technical meaning given in the Insolvency Act so that the disqualification applied to any person who was shown to be unable to pay his debts on the relevant date. The High Court referring to the Debates in the Constituent Assembly and to the suggestion of Sir Alladi Krishnaswamy Ayyar that the expression “if he is an undischarged insolvent” should be in terms of Section 73 of the Insolvency Act which was not accepted by the Constituent Assembly and held that the framers of the Constitution did not want to confine the operation of the disqualification only to cases where a person was adjudged insolvent under the Insolvency Act. The High Court, therefore, accepted the submission that pre- adjudication by an insolvency court is not required and observed that a candidate who was found to be an insolvent by the Court trying the election petition and a candidate who had already been adjudicated insolvent by the Insolvency Court but who had not obtained an order for discharge were both covered by Article 191(l)(c) of the Constitution. The High Court declared the appellant as an “undischarged insolvent” and held his election as void. The High Court, however, decided against the respondent-Election Petitioner-on the allegation of corrupt practices. Hence this appeal. On behalf of the appellant it was contended that the High Court could not in deciding an election petition under the R.P. Act examine the question whether the appellant was an undischarged insolvent. =Allowing the appeals, the Court HELD : 1. The expression `undischarged insolvent’ has acquired a special meaning under the Law of Insolvency, the Court must understand that that is the meaning that is sought to be attributed to the expression used in Article 191(l)(c) of the Constitution. The High Court was not justified in holding that the expression `undischarged insolvent’ should be understood de hors the Insolvency Act in a general sense. [434-H; 435-A] Bhagwati Prasad Dixit `Ghorewala’ v. Rajeev Gandhi, (1985) All WC 682, referred to. 2.1. The Provincial Insolvency Act, 1920 is a complete code and determination of all questions regarding insolvency including a question as to whether (1) a person is an insolvent or not, or (2) an insolvent be discharged or not and subject to what conditions, can be decided by the court constituted under that Act alone. It is only when exceptions are carved out as is done in the case of Section 2(8) of the Sale of Goods Act, 1930, any other court or authority can decide such questions. [430-E] 2.2. Under the scheme of the provisions of the Insolvency Act, the exclusive jurisdiction to deal with any question relating to insolvency could be adjudicated upon only by the court constituted under that Act In such a situation, it would not be possible to hold that the High Court had, while dealing with an election petition, jurisdiction to decide a question as to whether a person is an undischarged insolvent or not. Admittedly, in this case, there is no such adjudication. Hence The High Court could not declare the appellant to be an “undischarged insolvent”. [431-F-G] 3. Conferment of power under the Representation of the People Act, 1951 to try an election petition does not amount to enlargement of existing jurisdiction of the High Court. The jurisdiction exercisable under the R.P. Act is a special jurisdiction conferred on the High Court by virtue of Article 329(b) of the Constitution. Even an ordinary Civil Court will not have jurisdiction to decide questions arising under insolvency enactment; much less a special Authority like the High Court when it is not invested with such power under the Insolvency Act. [430-G; 431-B] Upadhyaya Hargovind Devshanker v. Dhirendra Singh Virbhadrasinhil Solanki, AIR (1988) SC 915 and Bhagwati Prasad Dixit `Ghorewala’ v. Rajeev Gandhi, (1985) All WC 682, followed. 4. Under what circumstances and subject to what limitations a person could be declared to have incurred disqualification is a matter of policy of law and the courts have cautioned themselves by stating that right to vote, right to elect or contest an election is a creature of statute and circumscribed by the limitations contained therein. Therefore, so long as the Constitution or the R.P. Act indicates in clear terms as to what its policy is, it would not be open to a court to interpret such a provision by trying to find out what the intent could be by ignoring the actual expressions used. Therefore, the supposed scheme of the provisions would not afford sufficient guidance to take the view that the expression “undischarged insolvent” should be understood as meaning an insolvent who is a person who is in impecunious circumstances as is unable to repay the debt. [432-E-F] 5. Even though Article 191(1) of the Constitution does not include declaration by an insolvency court, but by reason of expression used that he is an “undischarged insolvent” it clearly indicates that he could become “discharged” only in terms of the provisions of the insolvency Acts and not otherwise. It is implicit in the expression “undischarged insolvent” that a person does not become so unless he has been adjudged insolvent and is not discharged by the court under the insolvency Acts. The expression “undischarged insolvent” has acquired a particular legal connotation and such expression cannot be used otherwise than in terms of the insolvency enactment Redundancy and tautology cannot be attributed to the Legislature. When the Legislature has used the expression “undischarged insolvent” that expression must be given its full meaning. [432-H; 433-A] 6. Article 191(l)(c) does not contemplate mere impecuniousity or incapacity of a person to repay one’s debts but he should not only be adjudged insolvent but also remain undischarged. Such a contingency could only arise under the insolvency law. Article 191(l)(c) refers to disqualification of a person from getting elected to the State Legislature. The conditions for disqualification cannot be enlarged by importing to it any meaning other than permissible on strict interpretation of expressions used therein for it is a case of disqualification. Whenever any disqualification is imposed naturally the right of a citizen is cut down and in that event a narrow interpretation is required. Therefore, the liberal view taken by the High Court to the contrary does not appear to be correct. [433-G-H] 7. In ascertaining the meaning of an expression used in a statute, certain norms are adopted. If the legislature has used an expression which has acquired a technical meaning and such expression is used ordinarily in the context of a particular branch of law, it must be assumed that because of its constant use the legislature must be deemed to have used such expression in a particular sense as is understood when used in the similar context If an expression has acquired a special connotation in law, dictionary or general meaning ceases to be helpful in interpreting such a word. Such an expression must be given its legal sense and no other. If the expression “undischarged insolvent” has acquired a special meaning under the law of insolvency, the court must understand that that is the meaning that is sought to be attributed to the expression used in Article 191(1) (C) of the Constitution. [434-F-H] State of Madras v. Gannon Dunkerley & Co. (Madras) Ltd., [1959] SCR 379, relied on. 8. The reference made by Sir Alladi Krishnaswamy Ayyar is to reduce the rigour of the disqualification in the event the adjudication is annulled or if an insolvent obtains a discharge with the certificate that it was caused by misfortune and not by misconduct. Merely because the suggestion made by Sir Alladi Krishnaswamy Ayyar is not accepted by the Constituent Assembly it does not mean that the expression used in Article 191(l)(c) as to “undischarged insolvent” will be different from what is contained under the insolvency enactment. The reference to Section 73 of the Insolvency Act made by Sir Alladi Krishnaswamy Ayyar is in the background stated above and, therefore, has no effect on the interpretation of the meaning of the expression “undischarged insolvent”. [433-D-E] 9. Under the Sale of Goods Act, a special definition of the expression `insolvent’ had to be given to the effect that a person is said to be `insolvent’ who has ceased to pay his debts in the ordinary course of business, or cannot pay his debts as they become due, whether he has committed an act of insolvency or not, and the definition is declaratory in character. Question of insolvency of a buyer is of considerable importance in the context of the seller’s lien. It is in special context a meaning is given to the expression `insolvent’ even though a person had not been adjudged an insolvent in the Insolvency Act to be insolvent for the purposes of the Act. That definition cannot be imported into the R.P. Act. [434-B-C] 10. In the absence of examination of the employee of the Military Canteen the evidence adduced is vague and not clear and definite much less reliable and, therefore, the High Court rightly held that there is no acceptable evidence which can bring the case against the appellant within the expression of “bribery” under Section 123 of the R.P. Act. The other acts of undue influence or that the returned candidate has made an appeal in the name of religion or that he has made any statement with a false reference to the personal character and conduct of the candidate were not established. [436-B-C] CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 7395-96 of 1997.
PETITIONER: THAMPANOOR RAVI Vs. RESPONDENT: CHARUPARA RAVI & ORS. DATE OF JUDGMENT: 15/09/1999 BENCH: S.R.Babu, R.C.Lahoti JUDGMENT: RAJENDRA BABU, J. : Civil Appeal Nos. 7395-7396 of 1997 The appellant in these appeals was declared elected to the Kerala Legislative Assembly from No. 139, Neyyattinkara constituency in an election held on April 27, 1996. Two election … Continue reading
whether the allottees are liable to pay interest ? = the Board entered into agreements of sale with various allottees of the plots of land during the years 1988-1990 and made a provision therein that the Board shall be entitled to re-fix the final price of the property agreed to be sold to the allottees taking into account inter alia the enhanced compensation awarded by the Courts and Tribunals and that the decision of the Board in fixing the revised price of the property shall be conclusive and final. It was also expressly agreed in the agreements of sale that after finalization of the price of the property agreed to be sold by the Board, the allottee shall pay to the Board together with interest at the rate of 15% per annum, the difference between the tentative price fixed and the price finally fixed for the property by the Board within thirty days of the date of a registered notice demanding the payment thereof or in such quarterly installments over a period not exceeding two years to
Reportable IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL No.7835 OF 2011 (Arising out of S.L.P. (C) No. 10580 of 2006) Kerala State Housing Board & Ors. … Appellants Versus Kerala State Housing Board, Nellikode Housing Colony Allottees Assn. & Ors. … Respondents WITH CIVIL APPEAL No.7836 OF 2011 (Arising out of … Continue reading
Constitution of India, 1950: Article 191(1)(c). Election- “Undischarged insolvent”-Disqualification-For election as MLA- Determination of-Held: Cannot be determined by High Court trying an election petition-A person has to be adjudged as insolvent under the Insolvency Act before attracting disqualification under Art. 191(1)(c)- Insolvency Act is a complete code and court constituted under that Act alone is competent to decide that question and not any court or authority- Dictionary or general meaning of “insolvency” has no relevance-The special meaning of “undischarged insolvent” under the law of insolvency is only applicable-The meaning of `insolvent’ under the Sale of Goods Act, 1930 irrelevant-Representation of the People Act, 1951, S.100. Article 191-Disqualification-Conditions for-Election as MLA-Held: Cannot be enlarged by importing any meaning other than permissible on a strict interpretation of the expressions used therein. Representation of the People Act, 1951: Section 100-Election-Election petition-Trial-High Court- Jurisdiction of- Held : Is limited to the extent conferred by the Act- Constitution of India, 1950, Art. 329(b). Election-Voting, electing and contesting-Rights of-Held: These are statutory rights circumscribed by limitation contained therein-Therefore, if the statutes clearly indicate the policy of law, it is not open to the court to interpret such statutes to find out the legislative intent of the provisions. Section 123-Election-Corrupt practices-Bribery-Allegation that the returned candidate using his position and status secured several bottles of rum from Military Canteen and supplied them in his constituency-Witnesses did not have any personal knowledge and came to know about the matter from the employee of the Military Canteen who was not examined-Held: In the absence of examination of the said employee, evidence is vague, not clear and definite much less reliable-Hence, High Court rightly held there was no acceptable evidence which could bring the case within the expression of “bribery” under S.123-Other allegations of corrupt practices also not established. Interpretation of Statutes: External aids-Dictionary meaning-Relevancy of- Held: If an expression has acquired a special connotation in law, it must be assumed that the legislature has used it in a legal sense, not according to dictionary or general meaning. External aids-Constituent Assembly Debates-Discussion in- Reference to- Implication of-Stated. Words and Phrases : “Undischarged insolvent”-Meaning of-In the context of Art. 191(1)(c) of the Constitution of India, 1950. Insolvent”-Meaning of-In the context of S. 2(8) of the Sale of Goods Act, 1930. “Bribery”-Meaning of-In the context of S.123 of the Representation of the People Act, 1951. The appellant was declared elected to State Legislative Assembly. The respondent, the defeated candidate, filed an election petition challenging the election of the appellant on the grounds that he was disqualified from being chosen as a MLA since he was an undischarged insolvent within the meaning of Article 191(l)(c) of the Constitution and that he had indulged in corrupt practices within the meaning of Section 123 of the Representation of the People Act, 1951. The respondent alleged that the appellant using his position and status secured several bottles of rum from a Military Canteen and supplied them in his constituency. The witnesses had no personal knowledge of the bottles being carried but they came to know about the matter from the employee of the Military Canteen who was not examined. The High Court held that the expression “undischarged insolvent” which was not defined in the Provincial Insolvency Act, 1920 should be given its natural meaning, instead of a technical meaning given in the Insolvency Act so that the disqualification applied to any person who was shown to be unable to pay his debts on the relevant date. The High Court referring to the Debates in the Constituent Assembly and to the suggestion of Sir Alladi Krishnaswamy Ayyar that the expression “if he is an undischarged insolvent” should be in terms of Section 73 of the Insolvency Act which was not accepted by the Constituent Assembly and held that the framers of the Constitution did not want to confine the operation of the disqualification only to cases where a person was adjudged insolvent under the Insolvency Act. The High Court, therefore, accepted the submission that pre- adjudication by an insolvency court is not required and observed that a candidate who was found to be an insolvent by the Court trying the election petition and a candidate who had already been adjudicated insolvent by the Insolvency Court but who had not obtained an order for discharge were both covered by Article 191(l)(c) of the Constitution. The High Court declared the appellant as an “undischarged insolvent” and held his election as void. The High Court, however, decided against the respondent-Election Petitioner-on the allegation of corrupt practices. Hence this appeal. On behalf of the appellant it was contended that the High Court could not in deciding an election petition under the R.P. Act examine the question whether the appellant was an undischarged insolvent.
PETITIONER: THAMPANOOR RAVI Vs. RESPONDENT: CHARUPARA RAVI & ORS. DATE OF JUDGMENT: 15/09/1999 BENCH: S.R.Babu, R.C.Lahoti JUDGMENT: RAJENDRA BABU, J. : Civil Appeal Nos. 7395-7396 of 1997 The appellant in these appeals was declared elected to the Kerala Legislative Assembly from No. 139, Neyyattinkara constituency in an election held on April 27, 1996. Two election … Continue reading
whether sale of margarine is to be taxed at 8% or 4% under the provisions of Kerala General Sales Tax Act, 1963 (hereinafter referred to as “the Act”).
1 REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 7731 OF 2011 (Arising out of S.L.P.(C) No.7969 of 2008) Aluva Sugar Agency …..Appellant. Versus State of Kerala …..Respondent J U D G M E N T ANIL R. DAVE, J. 1. Leave granted. 2. Being aggrieved by the judgement and … Continue reading
advocatemmmohan 