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Sub-Divisional Magistrate

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Service matter – whether the respondent, who was dismissed from service following disciplinary proceedings, is liable to be reinstated on acquittal by a criminal court on the ground of identity of charges in the departmental as well as criminal proceedings. = Apex court held No = State of West Bengal & Ors. … Appellants Versus Sankar Ghosh … Respondent = published in http://judis.nic.in/supremecourt/imgst.aspx?filename=41023

whether   the     respondent,  who  was  dismissed   from   service   following   disciplinary   proceedings, is liable to be reinstated on acquittal by a criminal court  on   the ground of identity of charges in the departmental as  well  as  criminal   proceedings. = Apex court held No =     … Continue reading

dying declaration = “Though a dying declaration is entitled and is still recognised by law to be given greater weightage but it has also to be kept in mind that the accused had no chance of cross-examination. Such a right of cross examination is essential for eliciting the truth as an obligation of oath. This is the reason, generally, the court insists tha the dying declaration should be such which inspires full confidence of the court of its correctness. The court has to be on guard that such statement of the deceased was not as a result of either tutoring, prompting or product of imagination. The court must be further satisfied that the deceased was in a fit state of mind after a clear opportunity to observe and identify the assailants. Once the court is satisfied that the aforesaid requirement and also to the fact that declaration was true and voluntary, undoubtedly, it can base its conviction without any further corroboration.” So far as the statement of PW3 – Prem Chand recorded under Section 161, Cr.P.C. marked as Exh. P6 is concerned, the deceased was only abusing her father in law and that was not even corroborated by PW4 or PW5 and PW3 himself turned hostile. Due to discrepancies and contradictions between the two dying declarations and also in the absence of any other reliable evidence, in our view, the High Court is justified in reversing the order of conviction which calls for no interference by this Court. In view of above, the appeal is, therefore, dismissed.

Page 1 1 REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 427 OF 2007 State of Rajasthan … Appellant Versus Shravan Ram & Anr. … Respondents J U D G M E N T K.S. Radhakrishnan, J. 1. This is an appeal by the State of Rajasthan against the Judgment in … 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

caste certificate = Committee cannot gather evidence on its own to prove or disprove his claim. 20. Having examined the present case on the touchstone of the aforesaid broad parameters, we are of the opinion that the claim of the appellant has not been examined properly. We feel that the documentary evidence produced by the appellant in support of his claim had been lightly brushed aside by the Vigilance Officer as also by the Caste Scrutiny Committee. Insofar as the High Court is concerned, it has rejected the claim solely on the basis of the affinity test. It is pertinent to note that some of these documents date back to the pre- Independence era, issued to appellant’s grandfather and thus, hold great probative value as there can be no reason for suppression of facts to claim a non-existent benefit to the `Halbi’ Scheduled Tribe at that point of time. From the documents produced by the appellant, it appears that his near paternal relatives had been regarded as belonging to the `Halbi’ Scheduled Tribe. The Vigilance Officer’s report does not indicate that the documents produced by the appellant in support of his claim are false. It merely refers to the comments made by the Head Master with reference to the school records of appellant’s father’s maternal brother and his aunt, which had been alleged to be tampered with, to change the entry from Koshti Halba to Halba and 15 nothing more. Neither the Head Master was examined, nor any further enquiry was conducted to verify the veracity of Head Master’s statement. It is of some importance to note at this juncture that in similar cases, involving appellant’s first cousin and his paternal uncle, the High Court, while observing non-application of mind by the Caste Scrutiny Committee, had decided a similar claim in their favour. We are convinced that the documentary evidence produced by the appellant was not examined and appreciated in its proper perspective and the High Court laid undue stress on the affinity test. Thus, the decision of the Caste Scrutiny Committee to cancel and confiscate the caste certificate as well as the decision of the High Court, affirming the said decision is untenable. We are, therefore, of the opinion that the claim of the appellant deserves to be re-examined by the Caste Scrutiny Committee. For the view we have taken on facts in hand, we deem it unnecessary to refer to the decisions cited at the bar. 21. Resultantly, the appeal is allowed; the decisions of Caste Scrutiny Committee and the High Court are set aside and the case is remitted back to the Caste Scrutiny Committee for fresh consideration in accordance with the relevant rules and the aforesaid broad guidelines.

REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 6340 OF 2004 ANAND — APPELLANT VERSUS COMMITTEE FOR SCRUTINY & — RESPONDENTS VERIFICATION OF TRIBE CLAIMS & ORS. JUDGMENT D.K. JAIN, J.: 1. This appeal is directed against the judgment of the High Court of Judicature at Bombay, Nagpur Bench, delivered … Continue reading

APEX COURT OVERRULED THE CLAUSE 13 OF KUMARI MADHURI PATILS CASE WHEREIN THE THEN APEX COURT GAVE NEARLY 15 DIRECTIONS IN UPHOLDING CASTE CERTIFICATES = Respondents 1 to 3 claimed that they belonged to `Dhobi’ caste, a scheduled caste in Bhopal district of Madhya Pradesh, and secured appointment to posts reserved for Schedule Castes. The appellant, who was the President of the Schedule Caste Employees Association, made a complaint to the Sub-Divisional Magistrate that respondents 1 to 3 did not belong to any scheduled caste and had produced false caste certificates. = These two appeals have been referred by a two Judge bench, to a larger bench by order of reference dated 31.3.2010 doubting the legality and validity of the directions issued in Madhuri Patil. We extract below the relevant portion of the order of reference: “In Kumari Madhuri Patit’s case, as many as fifteen directions were given, which, in our opinion, are all legislative in nature. In our opinion, if a Court feels that some law should be made, then it can only make a recommendation to that effect to the legislature but it cannot itself legislate. It is upto the legislature to accept the recommendation or not. =we hold that the second sentence of clause 13 providing that where the writ petition is disposed of by a single judge, no further appeal would lie against the order of the division bench (even when there is a vested right to file such intra-court appeal) and will only be subject to a special leave under Article 136, is not legally proper and therefore, to that extent, is held to be not a good law. The second sentence of direction No.(13) stands overruled.

Reportable IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO.3467 of 2005 WITH CIVIL APPEAL NO.3468 of 2005 Dayaram … Appellant Vs. Sudhir Batham & Ors. … Respondents J U D G M E N T R.V. RAVEENDRAN, J. Respondents 1 to 3 claimed that they belonged to `Dhobi’ caste, a scheduled … Continue reading

CODE OF CRIMINAL PROCEDURE, 1973: s. 145(6) – Application for implementation of order passed u/ 145(4) – Period of limitation – HELD: Article 137 of Limitation Act, being the residuary provision, would be applicable and since the application was filed beyond three years, High Court rightly held the same as barred by limitation – s.6 of Specific Relief Act has no application to proceedings u/s 145 of the Code – Limitation Act, 1963 – Schedule – Article 137 – Specific Relief Act, 1963 – s.6. ss. 397(3) and 482 – Power of High Court to set aside order of revisional court – HELD: Doors of High Court to a litigant who lost before Sessions Judge in revision are not completely closed and in special cases bar u/s 397(3) can be lifted – Power of High Court u/s 482 is not subject to prohibition u/s 397(3). On an application filed u/s 145 of the Code of Criminal Procedure, 1973 by the predecessor-in-interest of the appellants stating that he was dispossessed by respondent no.1 from the lands in dispute within two months of the application, the Executive Magistrate, by his order dated 7.10.1994, declared possession of the appellants over the suit land. On 12.11.1997 the appellants filed another application for restoration of possession in pursuance of the order dated 7.10.1994. The Magistrate directed restoration of possession in favour of the appellants. The criminal revision filed by respondent no.1 was dismissed by the Additional Sessions Judge. On a petition by respondent no. 1, the single Judge of the High Court set aside the orders of the courts below. It was contended for the appellants that having regard to the specific provisions of Sub-section (3) of s. 397 of the Code, the petition before the High Court was not maintainable; that the High Court misinterpretd the provisions of the Specific Relief Act, 1963 and the Limitation Act, 1963 and erred in holding the application filed by the appellants u/s 145 (6) of the Code as barred by limitation.

1 IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.258 OF 2009 (Arising out of SLP(Crl.)No.1624 of 2007) Shakuntala Devi & Ors. …Appellants Vs. Chamru Mahto & Anr. …Respondents J U D G M E N T ALTAMAS KABIR, J. 1. Leave granted. 2. This appeal arises out of the order passed … Continue reading

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