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Whether the State Government had no jurisdiction to authorise the Special Judge to try these cases under FERA. on transfer from Magistrate court by way of Notification ? =Section 62 of FERA made the offence under Section 56 non-cognizable. Besides, Section 61 (1) of FERA stated that ‘it shall be lawful’ for the Magistrate to pass the necessary sentence under Section 56. It does not state that the Magistrate alone is empowered to pass the necessary sentence, in which case the proceeding cannot be transferred from his Court. = The error in A.S. Impex was correctly understood by the Division Bench of the Delhi High Court in Mahender Singh v. High Court of Delhi, (2009) 151 Comp Cas 485 (Delhi) and in N.G. Sheth v. C.B.I., 151 (2008) DLT 89. The Division Bench in both cases took a view different from that in A.S. Impex. However, both decisions having been rendered by Division Benches, A.S. Impex, could not be overruled. Therefore, I complete the formality and overrule A.S. Impex since it does not lay down the correct law in this regard. For the reasons stated above, there is no substance in the objections raised by the petitioners. The High Court has looked into Section 407 of Cr.P.C., referred to Articles 227 and 235 of the Constitution of India, and thereafter in its impugned judgment has observed as follows:- “Having perused Section 407 Cr.P.C. and Article 227 and 235, I have no hesitation to hold that this Court either in the administration side or in the judicial side has absolute jurisdiction to transfer any criminal cases pending before one competent Court to be heard and decided by another Court within the jurisdiction of this Court. This Court in its administrative power can issue direction that cases of particular nature shall be heard by particular court having jurisdiction.” For the reasons above mentioned, the Special Leave Petitions are dismissed.
published in http://judis.nic.in/supremecourt/imgst.aspx?filename=40834 REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION SPECIAL LEAVE PETITION (CRIMINAL) Nos. 6219-6220 OF 2012 Kamlesh Kumar & Ors. … Petitioners Versus The State of Jharkhand & Ors. … Respondents J U D G E M E N T H.L. GOKHALE, J These Special Leave Petitions (Criminal) seek … Continue reading
Industrial dispute = The Industrial Tribunal/ Labour Court constituted under the Industrial Disputes Act is a creature of that statute. It acquires jurisdiction on the basis of reference made to it. The Tribunal has to confine itself within the scope of the subject matter of reference and cannot travel beyond the same. This is the view taken by this Court in number of cases including in the case of National Engineering Industries Limited v. State of Rajasthan & Ors. 2000 (1) SCC 371. 19. It is for this reason that it becomes the bounden duty of the appropriate Government to make the reference appropriately which is reflective of the real/ exact nature of “dispute” between the parties. In the instant case, the bone of contention is as to whether the respondent workmen were simply transferred by the appellant to M/s. Lafarge or their services were taken over by M/s. Lafarge and they became the employees of the M/s. Lafarge. Second incidental question which would follow therefrom would be as to whether they have right to join back the services with the appellant in case their service conditions including salary etc. which they were enjoying with the appellant are not given or protected by M/s. Lafarge? If it is proved that their service conditions are violated, another question would be as to whether they can claim the service benefits/ protection from M/s. Lafarge or they have the right to go back to the appellant?= It follows from the above that the reference in the present form is clearly defective as it does not take care of the correct and precise nature of the dispute between the parties. On the contrary, the manner in which the reference is worded shows that it has already been decided that the respondent workmen continue to be the employees of the appellant and further that their services were simply transferred to M/s. Lafarge. This shall preclude the appellant to put forth and prove its case as it would deter the labour court to go into those issues. It also implies that by presuming so, the appropriate Government has itself decided those contentious issues and assumed the role of an adjudicator which is, otherwise, reserved for the Labour Court/ Industrial Tribunal. 21. As a consequence, this appeal is allowed and the impugned judgment of the High Court is set aside. Sequitur to that would be to quash the references made in the present form. However, at the same time, direction is given to the appropriate Government to make fresh reference, incorporating real essence of the dispute as discussed in this judgment, within a period of two months from the date of receipt of the copy of this judgment.
published in http://judis.nic.in/supremecourt/imgst.aspx?filename=40776 [REPORTABLE] IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 8246 OF 2013 (Arising out of Special Leave Petition (Civil) No. 20494 of 2011) M/s. Tata Iron & Steel Co. Ltd. …….Appellant(s) Versus State of Jharkhand & Ors. ……Respondent(s) WITH C.A. No. 8247/2013 (@ SLP(C) No. 21086 of 2011) … Continue reading
transfer of case at fag end not maintainable = In order to substantiate the contention relating to bias, namely, the Presiding Judge would be influenced by his brother-in-law or even by his sister or Mr. P.K. Shahi to go against the interest of the appellant, Mr. Ram Jethmalani, learned senior counsel, placed some photographs taken on 13.01.2013 during the visit of Hon’ble the Chief Minister of Bihar Shri Nitish Kumar to the ancestral house of Shri P.K. Shahi along with the entire Shahi family at House No. 147 Village Angota Block, Nautan P.S., District Sivan. By showing these photographs, it is argued that there is a reasonable apprehension of real likelihood of bias on the part of the Presiding Judge. Apart from the relationship, as mentioned by the appellant, we were also shown the genealogical table. In our opinion, merely because some of the distantly related members were in the midst of the present Chief Minister, it cannot be presumed that the Presiding Judge would conclude against the appellant. Admittedly, the above criminal proceedings were heard by the very same Judge from November, 2011. After examination of witnesses and after hearing the arguments on both the sides, it is not clear how the appellant has such an apprehension at this stage. If the appellant really had any apprehension in his mind, this could have been raised at the earliest point of time and not after the conclusion of evidence and arguments, particularly, on the eve of pronouncement of judgment. As observed earlier, inconvenience, if any, can be set at right by granting further time for arguments. Accordingly, the claim of the appellant for transfer of the entire case from the file of the Special Judge to any other competent court cannot be entertained. We have already highlighted that the prosecution was initiated as early as in 1997 and after prolonged trial, the matter has reached final stage, namely, pronouncement of the decision. In our view, in a matter of this nature, it is not at all desirable to shift the case to some other court at the last hour.
published in http://judis.nic.in/supremecourt/imgst.aspx?filename=40636 REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION 1 CRIMINAL APPEAL NO.1166 OF 2013 (Arising out of S.L.P. (Crl.) No. 5513 of 2013) Lalu Prasad @ Lalu Prasad Yadav …. Appellant(s) Versus State of Jharkhand …. Respondent(s) 2 3 J U D G M E N … Continue reading
Even if the prosecutrix is of easy virtue/unchaste woman that itself cannot be a determinative factor and the court is required to adjudicate whether the accused committed rape on the victim on the occasion complained of.” = No test identification is necessary – She denied all the suggestions made by the prosecution that she was a girl of easy virtue or bad character and she was a consenting party to the said incident or she was habitual to sex.- when she categorically deposed that some boys also raped and she fell unconscious = The test identification parade could not be held as the prosecutrix had fled away from her village and gone to reside with her sister at Bokaro after being threatened by the accused, therefore, appellants should not be allowed to take the benefit of this circumstance. There is no prohibition in law to convict the accused of rape on the basis of sole testimony of the prosecutrix and the law does not require that her statement be corroborated by the statements of other witnesses.= under Section 313 Cr.P.C.,- No explanation had been furnished by either of them as to why the prosecutrix had deposed against them and involved them in such a heinous crime.= Rape cannot be treated only as a sexual crime but it should be viewed as a crime involving aggression which leads to the domination of the prosecutrix. In case of rape besides the psychological trauma, there is also social stigma to the victim. Majority of rapes are not sudden occurrences but are generally well planned as in this case. Social stigma has a devastating effect on rape victim. It is violation of her right of privacy. Such victims need physical, mental, psychological and social rehabilitation. Physically she must feel safe in the society, mentally she needs help to restore her lost self esteem, psychologically she needs help to overcome her depression and socially, she needs to be accepted back in the social fold. Rape is blatant violation of women’s bodily integrity. 17. After considering the case from all angles, we do not see any cogent reason to interfere with the findings of fact recorded by the courts below. The appeals lack merit and are, accordingly, dismissed.
reported in http://judis.nic.in/supremecourt/imgst.aspx?filename=40588 Non-Reportable IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NOS. 109-110 of 2011 Md. Iqbal & Anr. …Appellants Versus State of Jharkhand …Respondent J U D G M E N T Dr. B.S. Chauhan, J. 1. These appeals have been preferred against the … Continue reading
This case is a glaring example of how cause of justice can be defeated by inefficient, lackadaisical and incompetent investigating agency.= We began by commenting on the unhappy conduct of the investigating agency. We conclude by reaffirming our view. We are distressed at the way in which the investigation of this case was carried out. It is true that acquitting the accused merely on the ground of lapses or irregularities in the investigation of a case would amount to putting premium on the deprecable conduct of an incompetent investigating agency at the cost of the victims which may lead to encouraging perpetrators of crimes. This Court has laid down that the lapses or irregularities in the investigation could be ignored subject to a rider. They can be ignored only if despite their existence, the evidence on record bears out the case of the prosecution and the evidence is of sterling quality. If the lapses or irregularities do not go to the root of the matter, if they do not dislodge the substratum of the prosecution case, they can be ignored. In this case, the lapses are very serious. PW-5 Jaldhari Yadav is a pancha to the seizure panchnama under which weapons and other articles were seized from the scene of offence and also to the inquest panchnama. Independent panchas have not been examined. The investigating officer has stated in his evidence that the seized articles were not sent to the court along with the charge-sheet. They were kept in the Malkhana of the police station. He has admitted that the seized articles were not sent to the Forensic Science Laboratory. No explanation is offered by him about the missing sanha entries. His evidence on that aspect is evasive. Clothes of the deceased were not sent to the Forensic Science Laboratory. The investigating officer admitted that no seizure list of the clothes of the deceased was made. Blood group of the deceased was not ascertained. No link is established between the blood found on the seized articles and the blood of the deceased. It is difficult to make allowance for such gross lapses. Besides, the evidence of eye-witnesses does not inspire confidence. Undoubtedly, a grave suspicion is created about the involvement of the accused in the offence of murder. It is well settled that suspicion, however strong, cannot take the place of proof. In such a case, benefit of doubt must go to the accused. In the circumstances, we quash and set aside the impugned judgment and order. The appellants-accused are in jail. We direct that the appellants – A1-Sunil Kundu, A2-Bablu Kundu, A3-Nageshwar Prasad Sah and A4-Hira Lal Yadav be released forthwith unless otherwise required in any other case. 20. The appeals are disposed of in the aforestated terms.
Page 1 REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 1073 OF 2008 SUNIL KUNDU AND ANR. … APPELLANTS Versus STATE OF JHARKHAND … RESPONDENT WITH CRIMINAL APPEAL NO. 1419 OF 2008 HIRA LAL YADAV … APPELLANT Versus STATE OF JHARKHAND … RESPONDENT WITH CRIMINAL APPEAL NO. 1512 OF 2009 NAGESHWAR … Continue reading
When the FIR can be quashed ? =1. Where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima-facie constitute any offence or make out a case against the accused. 2. Where the allegations in the First Information Report and other materials, if any, accompanying the F.I.R. do not disclose a cognizable offence, justifying an investigation by police officers Under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code. 3. Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. 4. Where, the allegations in the F.I.R. do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated Under Section 155(2) of the Code. 5. Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. 6. Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party. 7. Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge. 109. We also give a note of caution to the effect that the power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rare cases; that the Court will not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the F.I.R. or the complaint and that the extraordinary or inherent powers do not confer an arbitrary jurisdiction on the Court to act according to its whim or caprice.”
1 Reportable IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 1356 OF 2004 Union of India & Ors. …….. Appellants Versus Ramesh Gandhi ……… Respondent J U D G E M E N T Chelameswar, J. 1. This appeal arises out of a judgment of the High Court of Calcutta dated … Continue reading
“498A. Husband or relative of husband of a woman subjecting her to cruelty. – Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine. Explanation. – For the purpose of this section, “cruelty” means- (a) Any willful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or (b) Harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on
REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 1745 OF 2010 (@ SPECIAL LEAVE PETITION(CRL.) No.4758 of 2009) SUNITA JHA … APPELLANT Vs. STATE OF JHARKHAND & ANR. … RESPONDENTS J U D G M E N T ALTAMAS KABIR, J. 1. Leave granted. 2. This Appeal is directed against … Continue reading
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