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SERVICE MATTER = the matter of integration or the fusion of employees, being one of policy, could not have been challenged by the employees unless the said decision was arbitrary, unreasonable or capricious.=The High Court was justified in quashing the Paras 6(iv) and (v) of the G.O.Ms. No.382. The seniority of the respondent has to be fixed in the cadre of Health Inspector Grade I by giving the benefit of service from 27th June, 1997. Further, they are eligible to be promoted on completion of 5 years service on the post of Health Inspector Grade I, though, they can be placed at the bottom of the seniority of serving Health Inspector Grade I as on 1st August, 1997. In our opinion, the High Court, in fact rightly quashed and set aside the offending clauses of 6(iv) and 6(v) of G.O. Ms. No. 382 dated 12th October, 2007.- At this stage, we may summarise the conclusions recorded by us in the following manner:- i. The integration of Leprosy Inspectors into the Department of Health and Preventive Medicine by G.O.Ms. No. 320 dated 27th June, 1997 was complete in all respects. ii. The aforesaid G.O. Ms. No. 320 dated 27th June, 1997 did not bring about an amendment in the Statutory Services Rules contained in G.O. Ms. No. 1507 dated 16th August, 1989. The G.O.Ms. was supplementary to the aforesaid Rules and did not supplant the same. iii. There was no relaxation in the educational qualification for the integration/re-designation of Leprosy Inspectors as Multi Purpose Health Supervisors as the post of Leprosy Inspector was equated with the post of Multi Purpose Health Supervisor. The qualifications prescribed for appointment on the post of Multi Purpose Health Assistants re-designated as Health Inspector Grade II were not applicable for the post of Multi Purpose Health Supervisor. iv. Since, there was a complete integration of the posts of Leprosy Inspector and Multi Purpose Health Supervisor by virtue of G.O.Ms. No. 320 dated 27th June, 1997; both categories were entitled to the same treatment. Therefore, Leprosy Inspectors re- designated as Health Inspector Grade IB were entitled to the pay-scale of Rs.1350-2000 w.e.f. 1st August, 1997 and the pay-scale of Rs.4500-7000 w.e.f. the same were given to Health Inspector Grade IA, with all consequential benefits. v. Upon integration vide G.O.Ms. No. 320 dated 27th June, 1997, Multi Purpose Health Supervisors and Leprosy Inspectors were to be re-designated as Health Inspector Grade I. The birth mark of the Leprosy Inspector got obliterated with the integration. There could be no further distinction in the cadre of Health Inspector Grade I. There could be no such division as Health Inspector Grade IA and Health Inspector Grade IB. vi. Since Paragraph 6(iv) and 6(v) of G.O.Ms. No. 382 dated 12th October, 2007 was in violation of Articles 14 and 16 of the Constitution of India, they have been correctly struck down by the High Court. vii. The denial of seniority to the re-designated Health Inspectors Grade IB, i.e., erstwhile Leprosy Inspectors on the post of Health Inspector Grade I w.e.f. 1st August, 1997 to 12th October, 2007 violated Articles 14 and 16 of the Constitution of India. The Division Bench of the High Court has correctly concluded that the integrated Leprosy Inspectors, re-designated as Health Inspector Grade IB are to be re-designated as Health Inspector Grade I and to be given seniority as well as consequential reliefs such as seniority and further promotions. viii. The provision contained in Clause 6(v) of G.O.Ms. No. 382 dated 12th October, 2007 denying promotion of the re-designated Health Inspector Grade I to the post of Block Health Supervisor and Technical Personal Assistant till the last person in the existing list of Health Inspector Grade I gets promotion as Block Health Supervisor and Technical Personal Assistant, has been rightly held by the High Court to be violative of Articles 14 and 16 of the Constitution of India. ix. The continuance of the existing promotion channels as Non-Medical Supervisor and Health Educator to the re-designated Health Inspector grade I (erstwhile Leprosy Inspectors) did not amount to bestowing a double benefit upon this category. Therefore, the High Court did not enforce negative equality. The High Court has correctly observed that upon integration and merger into one cadre, the pre- existing length of service of the Leprosy Inspectors re-designated as Health Inspector Grade IB had to be protected as it can not be obliterated. Therefore, the Leprosy Inspectors have been correctly placed at the bottom of the seniority list of the already existing Health Inspectors Grade I w.e.f. 27th June, 1997. Therefore, it can not be said that benefit has been given to the Leprosy Inspectors /Health Inspector Grade IB /Health Inspector Grade I with retrospective effect.
‘ REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NOS. 4483-4485 OF 2013 [Arising out of SLP (C) NOS.24492-24494 OF 2010] S. Sivaguru …Appellant VERSUS State of Tamil Nadu & Ors. …Respondents WITH CIVIL APPEAL NO. 4486 OF 2013 [Arising out of SLP (C) NO.25526 OF 2010] R. Arulraj … Continue reading
the plea of insanity under Section 84 of the Indian Penal Code, 1860 (in short ‘the IPC’).= Another factor which goes against the appellant accused is that he himself was examined as a defence witness No.3. According to learned trial Judge, as a witness, he made his statement clearly and cogently and it was also observed that he was meticulously following the court proceedings, acting suitably when the records were furnished for perusal. The trial Judge has also pointed out that during the entire proceedings, the accused has nowhere stated that he was insane earlier to the date of incident. The trial Judge, after noting his answers in respect of the questions under Section 313 of the Code of Criminal Procedure, 1973 has concluded that the accused could not be termed as an “insane” person. – there is no evidence as to the unsoundness of mind of the appellant-accused at the time of the occurrence, namely, on 05.11.2001 and also taking note of the fact that the accused failed to discharge the burden as stated in Section 105 of the Evidence Act, we fully agree with the conclusion arrived at by the trial Court and affirmed by the High Court.
Page 1 REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 926 OF 2009 Mariappan …. Appellant(s) Versus State of Tamil Nadu …. Respondent(s) J U D G M E N T P.Sathasivam, J. 1) This appeal has been filed against the final judgment and order dated 17.10.2006 passed by … Continue reading
the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 =order of detention dated 16/4/2012 issued by the detaining authority i.e. the Principal Secretary (Appeals and Security), Government of Maharashtra, Home Department under the provisions of Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (for short, “the said Act”). The order of detention directed his detention with a view to preventing him in future from smuggling goods. we hold that the order of detention dated 16/4/2012 is valid. However, on account of delay in disposal of the representation of the detenu by the State Government, the continued detention of the detenu is rendered illegal. We, therefore, direct that the detenu – Abdul Nasar Adam Ismail be released from detention forthwith if he is not already released from detention and he is not required in any other case. The appeal is disposed of accordingly.
Page 1 REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 520 OF 2013 [Arising out of Special Leave Petition (Crl.) No.1359 of 2013] ABDUL NASAR ADAM ISMAIL Through Abdul Basheer Adam Ismail … APPELLANT Versus THE STATE OF MAHARASHTRA & ORS. … RESPONDENTS JUDGMENT (SMT.) RANJANA PRAKASH DESAI, J. 1. Leave … Continue reading
environmental clearance= the appellant company applied and obtained ‘No Objection Certificate’ on 01.08.1994 from the Tamil Nadu Pollution Control Board (forPage 2 short ‘the TNPCB’) for setting up a copper smelter plant (for short ‘the plant’) in Melavittan village, Tuticorin. On 16.01.1995, the Ministry of Environment and Forests, Government of India, granted environmental clearance to the setting up of the plant of the appellants at Tuticorin subject to certain conditions including those laid down by the TNPCB and the Government of Tamil Nadu. On 17.05.1995, the Government of Tamil Nadu granted clearance subject to certain conditions and requested the TNPCB to issue consent to the proposed plant of the appellants. Accordingly, on 22.05.1995, the TNPCB granted its consent under Section 21 of the Air (Prevention and Control of Pollution) Act, 1981 (for short ‘the Air Act’) and under Section 25 of the Water (Prevention and Control of Pollution) Act, 1974 (for short ‘the Water Act’) to the appellants to establish the plant in the SIPCOT Industrial Complex, Melavittan village, Tuticorin Taluk.- The environmental clearance granted by the Ministry of Environment and Forests, Government of India, and the consent orders under the Air Act and the Water Act granted by the TNPCB were challenged before the Madras High Court in W.P. Nos.15501, 15502 and 15503 of 1996 by the National Trust for Clean Environment. = There is no doubt that there has been misrepresentation and suppression of material facts made in the special leave petition but to decline relief to the appellants in this case would mean closure of the plant of the appellants. The plant of the appellants contributes substantially to the copper production in India and copper is used in defence, electricity, automobile, construction and infrastructure etc. The plant of the appellants has about 1300 employees and it also provides employment to large number of people through contractors. A number of ancillary industries are also dependent on the plant. Through its various transactions, the plant generates a huge revenue to Central and State Governments in terms of excise, custom duties, income tax and VAT. It also contributes to 10% of the total cargo volume of Tuticorin port. For these considerations of public interest, we do not think it will be a proper exercise of our discretion under Article 136 of the Constitution to refuse relief on the grounds of misrepresentation and suppression of material facts in the special leave petition. – In the result, the appeals are allowed and the impugned common judgment of the High Court is set aside. The appellants, however, are directed to deposit within three months from today a compensation of Rs.100 crores with the Collector of Thoothukudi District, which will be kept in a fixed deposit in a Nationalized Bank for a minimum of five years, renewable as and when it expires, and the interest therefrom will be spent on suitable measures for improvement of the environment, including water and soil, of the vicinity of the plant of the appellants after consultation with TNPCB and approval of the Secretary, Environment, Government of Tamil Nadu. In case the Collector of Thoothukudi District, after consultation with TNPCB, finds the interest amount inadequate, he may also utilize the principal amount or part thereof for the aforesaid purpose after approval from the Secretary, Environment, Government of Tamil Nadu. By this judgment, we have only set aside the directions of the High Court in the impugned common judgment and we make it clear that this judgment will not stand in the way of the TNPCB issuing directions to the appellant-company, including a direction for closure of the plant, for the protection of environment in accordance with law. We also make it clear that the award of damages of Rs. 100 Crores by this judgment against the appellant Company for the period from 1997 to 2012 will not stand in the way of any claim for damages for the aforesaid period or any other period in a civil court or any other forum in accordance with law.
Page 1 Reportable IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL Nos. 2776-2783 OF 2013 (Arising out of SLP (C) Nos. 28116-28123 of 2010) Sterlite Industries (India) Ltd. Etc. Etc. … Appellants Versus Union of India & Ors. Etc. Etc. … Respondents J U D G M E N T A. K. PATNAIK, … Continue reading
the Bank had failed to insure the property.=The State Commission was also informed that in all cases of house loan advanced in Tiruchirapalli by the OP/Bank, during 2003-09 period, the bank itself had insured all houses. In none of the cases, premium was directly paid to the insurance company by the borrower. Clause 13 in the loan agreement needs to be viewed in this background. Had the OP/Bank acted with promptitude and insured the house in time, the benefit of insurance would have been available when the floods came and damaged it. This lapse was further compounded by belated effort on the part of the Bank to ensure it, at the cost of the complainant. The State Commission has therefore rightly held it to be a case of deficiency of service.- the decision of the Tamilnadu Consumer Disputes Redressal Commission in FA No. 194 of 2011 is bases on correct appreciation of the evidence on record. There is no case for intervention by this Commission in exercise of powers under Section 21 (b) of the Consumer Protection Act, 1986. The revision petition is therefore dismissed and the impugned order is confirmed. Further, considering the conduct of the revision petitioner an additional cost of Rs 25,000 is awarded to the respondent/complainant. The same shall be paid by the revision petitioner within three months. Failing this, the amount shall carry interest at 9% for the period of delay.
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO.4645 OF 2012 (Against the order dated 24.07.2012 in First Appeal No.194/2011 of the State Commission, Tamil Nadu) 1. The Chairman Indian Bank Chennai 2. The Manager Indian Bank, Thillai Nagar, 10th Cross, Tiruchirapalli- 18 ……….Petitioners Versus 1. Consumer Protection Council Tamilnadu, No.2, RMS Building, … Continue reading
Wakf Act- Section 9 of the 1921 Act, to the extent it is relevant, reads as under : “SECTION 9. APPLICATION TO COURT FOR DIRECTING THE LANDLORD TO SELL LAND – (1)(a)(i) Any tenant who is entitled to compensation under section 3 and against whom a suit in ejectment has been instituted or proceeding under section 41 of the Presidency Small Cause Courts Act, 1882, taken by the landlord may, within one month of the date of the publication of Madras City Tenants Protection Amendment Act, 1979 in the Tamil Nadu Government Gazette or of the date with effect from which this Act is extended to the municipal town, township or village in which the land is situate or within one month after the service on him of summons, apply to the Court for an order that the landlord shall be directed to sell for a price to be fixed by the Court, the whole or part of the extent of and specified in the application. In view of Section 3 of the 1994 Amendment Act, the application made by the legal representatives of the original defendant being Interlocutory Application No. 16520 of 1973 under Section 9 of the 1921 Act which is said to be pending before the trial court does not survive and by operation of law that application has abated. It is strange that when Second Appeal was heard by the High Court, none of the parties brought to the notice of the learned Judge the provisions of the 1994 Amendment Act. In the Review Petition, the provisions of the 1994 Amendment Act were expressly referred to but the learned single Judge referred to Section 2 only and did not advert to Section 3 at all. The omission to consider Section 3 of the 1994 Amendment Act has rendered the impugned judgment and impugned order legally unsustainable.
REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NOS. 2232-2233 OF 2002 TAMIL NADU WAKF BOARD Appellant (s) VERSUS SYED ABDUL QUADER & ORS. Respondent(s) J U D G M E N … Continue reading
Penal Code, 1860: ss. 302, 302/114, 307 and 307/114 – Three of the members of a group of agitators setting ablaze a University bus full of girl-students – Three girls burnt alive to death and several others received burn injuries – HELD: Courts below rightly convicted and sentenced the three accused to death – Their activities were not only barbaric but inhuman to the highest degree – The manner of the commission of the offence is extremely brutal, diabolical, grotesque and cruel – It is shocking to the collective conscience of society – Sentence/Sentencing – Sentence of death – Aggravating and mitigating circumstances – Explained. ss. 147/148, 341 IPC and ss. 3 and 4 of TN (PDL) Act, 1982 r/w s.149 – IPC Offences committed by a group of agitators – Conviction and sentence by trial court – Sentence directed to run consecutively – High Court directing sentences to run concurrently – HELD: The maximum sentence to be served by the accused as per High Court judgment being 2 years and accused having served 14 months of sentence, in the circumstances of the case, sentence reduced to the period already undergone – Tamil Nadu (Prevention of Dangerous Activities of Boot Laggers, Traffic Offenders, Forest Offenders Activities, Immoral Traffic Offenders and Slum Grabbers and Videopirate) Act, 1982. Evidence: Discrepancies in evidence – HELD: An undue importance should not be attached to omissions, contradictions and discrepancies which do not go to the heart of the matter and shake the basic version of the prosecution witness. Hostile witness – Evidence of – HELD: cannot be discarded as a whole, and relevant parts thereof which are admissible in law, can be used by the prosecution or the defence. Extra-judicial confessional statement – Exhibiting of – Explained. Investigation: Irregularities in investigation – HELD: In the instant case, irregularities-committed in the investigation by the earlier I.Os. have too little relevance on the merits of the case and the material of earlier investigations has rightly been not relied upon by the subsequent Investigating Officer. Obligation on trial court in case of defective investigation – HELD: Investigation is not the solitary area for judicial scrutiny in a criminal trial – Where there has been negligence or omissions etc. on the part of the investigating agency, which resulted in defective investigation, there is a legal obligation on the court to examine the prosecution evidence de hors such lapses and examine whether the lapses had affected the prosecution case. Test identification parade – HELD: Is a part of investigation and provides for an assurance that the investigation is proceeding in the right direction and it enables the witnesses to satisfy themselves that the accused whom they suspect is really one who was seen by them at the time of commission of offence – Holding the test identification parade is not substantive piece of evidence, yet it may be used for the purpose of corroboration that a person brought before the court is the real person involved in the commission of the crime – However, the test identification parade, even if held, cannot be considered in all the cases as trustworthy evidence on which the conviction of the accused can be sustained – It is a rule of prudence which is required to be followed in cases where the accused is not known to the witness or the complainant – Evidence Act, 1872 – s.9 – Test identification parade. Code of Criminal Procedure, 1973 s.195 – Cognizance by court, of offence punishable u/s 188 IPC – HELD: The provisions of s.195 are mandatory – Non-compliance of it would vitiate the prosecution and all other consequential orders – Law does not permit taking cognizance of any offence punishable u/s 188 IPC unless there is a complaint in writing by the competent public servant – In the absence of such a complaint, the trial and conviction will be void ab initio being without jurisdiction – However, non-compliance of s.195 would have no bearing on the prosecution case so far charges for other offences are concerned – Penal Code, 1860 – s.188. Criminal Trial: Clubbing of two Criminal cases into one trial – HELD: In the instant case, second incident was a fall out of the first occurrence – Merely because two separate complaints had been lodged, it would not mean that they could not be clubbed together and one charge-sheet could not be filed – Practice and Procedure. Criminal Law: Crime and society – Crimes occurring in presence of public and police – Social sensitivity – Duty of police and protectors of law – A University bus full of girl students set ablaze by some of the agitators – Three young girls charred to death while several others sustained burn injuries – HELD: Even if the common man fails to respond to the call of his conscience, the police should not have remained inactive – The administration did not bother to find out why the police did not intervene and assist in the rescue, much less reprimand them for failing in their duty. During the “Rasta Roko Agitation” staged against conviction of a political leader, a mob of 100-150 of her supporters, while the prohibition order u/s 60 of the Indian Police Act, 1861 was in force, damaged a town bus and set ablaze a University bus with 47 girl-students, with the result that 3 students burnt alive and 28 others received burn injuries and several others sustained serious injuries. Two FIRs were lodged as regards the occurrence involving both the buses. In all, 30 accused were convicted u/ss 188, 341 IPC, and ss. 3 and 4 of the TNP (PDL) Act read with s. 149 IPC. They were also convicted u/s 147 IPC except A-24, who was convicted u/s 148 IPC. Besides, A-2 to A-4 were also found guilty of setting the University bus ablaze and burning three girl-students to death and causing burn injuries and other serious injuries to 28 others for which A-2 and A-3 were convicted u/s 302 IPC each for three counts and A-4 u/s 302 read with s. 114 IPC for three counts; A-2 and A-3 were further convicted u/s 307 IPC each for 46 counts and A-4 u/s 307 read with s.114 IPC for 46 counts; A-2 to A-4 were sentenced to death. The sentences imposed on the other accused persons were directed to run consecutively which extended to 7 years odd. The High Court confirmed the death sentences of A-2 to A-4, but modified the sentences of the other accused to run concurrently. In the appeals filed by the convicts, it was contended for them that in the absence of any complaint by the competent officer whose prohibition order was stated to have been violated, the charge u/s 188 IPC could not have been framed; that the Criminal cases registered in respect of two separate FIRs could not have been clubbed into one single trial; that there were contradictions in the statements of alleged eye-witnesses; and, as such, the case did not warrant any trial. =Disposing of the appeals, the Court HELD: 1.1 From the record, involvement of A-2 to A-4 in the incident of setting fire to the University bus has been substantiated. From the evidence of PW-99, PW-4, PW-5, PW-1 and PW-2, PW-8, PW-11, PW-12, PW-14, it has been established that A-2 to A-4 came on motorcycle, A-1 and A-3 sprinkled petrol inside the bus and set the bus ablaze. PW-99 has spoken about A-2 to A-4. He is an advocate and belongs to the locality. He has deposed that A-2 had set fire to the Route No.7-B town bus. He has also corroborated the evidence of PW-97 that while the bus was in flames, some persons tried to douse the fire but they were prevented by A-23. A-2 remained present in the earlier occurrence as well as the subsequent occurrence. It is significant to note that A-4 had kept the engine of the motor cycle running only to escape from the scene of occurrence along with A-2 and A-3 after the occurrence. The said fact would also indicate the mind of the accused to commit the offence and to flee from the scene of occurrence to avoid the clutches of law. But for PWs 1, 2, 4 and 5 and some other students who became alert immediately after the bus was set on fire, the consequence could have been disastrous and more deaths could have occurred. [para 47, 51-56] 1.2 So far as the issue of damage to the buses and the main incident of setting the University bus on fire is concerned, both the courts have proceeded on the finding, after appreciating the entire evidence on record, that there was no common object between A-2, A-3 and A-4 on the one hand, and the other accused, on the other, regarding murder of the students and burning of the bus. Therefore, all of them had been convicted under different sections. However, the High Court directed the sentence to run concurrently so far as A-1, A-5 to A-14, A-16 to A-21, A-23 to A-26 and A-28 to A-31 are concerned. There has been sufficient material to show their participation in the “Rasto Roko Andolan” and indulging in the incident of damaging the local route bus. Both the courts below have recorded the concurrent findings of fact in this regard and there is no reason to interfere with the same. [para 46] [302-C-E] 1.3 As regards the doubts raised about the arrest of A-4, and his confessional statement, there has been no cross-examination independently on his behalf on this issue. Even in cross-examination on behalf of other accused nothing has been elicited qua irregularity or improbability of the arrest of A-4. Therefore, there is no reason to disbelieve the arrest of A- 4 as shown by the I.O. [para 45] [301-E-H; 302-A-B] 1.4 A large number of injured students were examined in the court. They supported the prosecution case but did not identify any person either in the test identification parade or in the court. Their seating position in the bus had been such that they could not see as who had sprinkled the petrol in the bus. Besides, the photographer (PW-51) photographed and videographed the spot of the agitation. He also photographed the burning bus. He watched the video prepared by him in the court and identified the same. [para 62] [308-F-G] 2.1 If there are some omissions, contradictions and discrepancies, the entire evidence cannot be disregarded. After exercising care and caution and sifting through the evidence to separate truth from untruth, exaggeration and improvements, the court comes to a conclusion as to whether the residuary evidence is sufficient to convict the accused. Thus, an undue importance should not be attached to omissions, contradictions and discrepancies which do not go to the heart of the matter and shake the basic version of the prosecution witness. As the mental abilities of a human being cannot be expected to be attuned to absorb all the details of the incident, minor discrepancies are bound to occur in the statements of witnesses. The omissions and improvements in the evidence of the PWs pointed out in the instant casse are found to be very trivial in nature. [para 70-71] [311-F-G; 312-A-B] Sohrab & Anr. v. The State of M.P., 1973 ( 1 ) SCR 472=AIR 1972 SC 2020; State of U.P. v. M.K. Anthony, AIR 1985 SC 48; Bharwada Bhogini Bhai Hirji Bhai v. State of Gujarat, 1983 ( 3 ) SCR 280= AIR 1983 SC 753; State of Rajasthan v. Om Prakash 2007 (7) SCR1000= AIR 2007 SC 2257; Prithu @ Prithi Chand & Anr. v. State of Himachal Pradesh, 2009 (2 ) SCR765 = (2009) 11 SCC 588; State of U.P. v. Santosh Kumar & Ors., 2009 (14 ) SCR 106 = (2009) 9 SCC 626; and State v. Saravanan & Anr., AIR 2009 SC 151 – relied on. 2.2 The evidence of a hostile witness cannot be discarded as a whole, and relevant parts thereof which are admissible in law, can be used by the prosecution or the defence. In the instant case, some of the material witnesses i.e. PW-86; and PW-51 turned hostile. Their evidence has been taken into consideration by the courts below strictly in accordance with law. [para 70] [311-D-E] Bhagwan Singh v. The State of Haryana, 1976 ( 2 ) SCR 921= AIR 1976 SC 202; Rabindra Kumar Dey v. State of Orissa, 1977 ( 1 ) SCR 439= AIR 1977 SC 170; Syad Akbar v. State of Karnataka, 1980 ( 1 ) SCR 95= AIR 1979 SC 1848; and Khujji @ Surendra Tiwari v. State of Madhya Pradesh, 1991 ( 3 ) SCR 1= AIR 1991 SC 1853; State of U.P. v. Ramesh Prasad Misra & Anr., 1996 ( 4 ) Suppl. SCR 631=AIR 1996 SC 2766; Balu Sonba Shinde v. State of Maharashtra, 2002 ( 2 ) Suppl. SCR 135= (2002) 7 SCC 543; Gagan Kanojia & Anr. v. State of Punjab, (2006) 13 SCC 516; Radha Mohan Singh @ Lal Saheb & Ors. v. State of U.P., 2006 (1 ) SCR519 = AIR 2006 SC 951; Sarvesh Naraia Shukla v. Daroga Singh & Ors., 2007 (11 ) SCR300 =AIR 2008 SC 320; and Subbu Singh v. State, 2009 (7 ) SCR383 = (2009) 6 SCC 462 – relied on 2.3 As regards exhibiting and reading of an extra-judicial confessional statement, only the admissible part of it can be exhibited. The statement as a whole, if exhibited and relied upon by the prosecution, leads to the possibility of the court getting prejudiced against the accused. In the instant case, the confessional statement of A-4 had been exhibited in the court in its full text. It was neither required nor warranted nor was permissible. However, in view of the fact that there had been other sufficient material on record to show his involvement in the crime, the full exhibition of the statement had not prejudiced the case against him. [para 67-68] [310-C-E] Aloke Nath Dutta & Ors. v. State of West Bengal, 2006 (10 ) Suppl. SCR 662 = (2007) 12 SCC 230; State of Maharashtra v. Damu Gopinath Shinde & Ors., 2000 ( 3 ) SCR 880=AIR 2000 SC 1691; and Anter Singh v. State of Rajasthan, AIR 2004 SC 2865 – relied on. Pulukuri Kotayya v. King-Emperor, AIR 1947 PC 67 – referred to 3.1 The investigation is not the solitary area for judicial scrutiny in a criminal trial. The conclusion of the trial in the case cannot be allowed to depend solely on the probity of investigation. The defect in the investigation by itself cannot be a ground for acquittal. Where there has been negligence on the part of the investigating agency or omissions, etc. which resulted in defective investigation, there is a legal obligation on the court to examine the prosecution evidence de hors such lapses, carefully, to find out whether the evidence is reliable or not and to what extent the lapses affected the object of finding out the truth. It is to be examined as to whether there is any lapse by the I.O. and whether due to such lapse any benefit should be given to the accused. [para 43-44] [310-A- B; 301-F-H] Chandra Kanth Lakshmi v. State of Maharashtra, AIR 1974 SC 220; Karnel Singh v. State of Madhya Pradesh, 1995 (2) Suppl. SCR629= (1995) 5 SCC 518; Ram Bihari Yadav v. State of Bihar, 1998 ( 2 ) SCR 1097= AIR 1998 SC 1850; Paras Yadav v. State of Bihar, 1999 ( 1 ) SCR 55= AIR 1999 SC 644; State of Karnataka v. K. Yarappa Reddy, 1999 ( 3 ) Suppl. SCR 359= AIR 2000 SC 185; Amar Singh v. Balwinder Singh 2003 ( 1 ) SCR 754= AIR 2003 SC 1164; Allarakha K. Mansuri v. State of Gujarat, 2002 ( 1 ) SCR 1011= AIR 2002 SC 1051; and Ram Bali v. State of U.P., 2004 (1 ) Suppl. SCR195 = AIR 2004 SC 2329 – relied on. 3.2 In the instant case, the occurrence was so ugly and awful that the I.Os. had conducted the investigation under great anxiety, tension and in a charged atmosphere. Therefore, some irregularities were bound to occur. The State authorities ultimately transferred the investigation to the CBCID. Therefore, the irregularities committed in the investigation by the earlier I.Os. have too little relevance on the merits of the case and the material of earlier investigation has rightly been not relied upon by the subsequent Investigating Officer. [para 43-44] [301-A-B; 300-A-H] 3.3 The test identification parade is a part of the investigation and is very useful in a case where the accused are not known before hand to the witnesses. It provides for an assurance that the investigation is proceeding in the right direction and it enables the witnesses to satisfy themselves that the accused whom they suspect is really one who was seen by them at the time of commission of offence. The accused should not be shown to any of the witnesses after arrest; and before holding the test identification parade, he is required to be kept “baparda”. [para 36] [297- H; 298-A-C] 3.4 Holding the test identification parade is not substantive piece of evidence, yet it may be used for the purpose of corroboration that a person brought before the court is the real person involved in the commission of the crime. However, the test identification parade, even if held, cannot be considered in all the cases as trustworthy evidence on which the conviction of the accused can be sustained. It is a rule of prudence which is required to be followed in cases where the accused is not known to the witness or the complainant. [para 32] [296-C-D] State of H.P. v. Lekh Raj 1999 (4) Suppl. SCR286 = AIR 1999 SC 3916 – relied on. Mulla & Anr. v. State of Uttar Pradesh, 2010 (2 ) SCR633 = (2010) 3 SCC 508; Matru @ Girish Chandra v. The State of Uttar Pradesh, 1971 ( 3 ) SCR 914=AIR 1971 SC 1050; and Santokh Singh v. Izhar Hussain & Anr., 1974 ( 1 ) SCR 78= AIR 1973 SC 2190; Lal Singh & Ors v. State of U.P., AIR 2004 SC 299; Suresh Chandra Bahri v. State of Bihar 1994 ( 1 ) Suppl. SCR483= AIR 1994 SC 2420; Malkhan Singh v. State of M.P., 2003 (1) Suppl. SCR443 = AIR 2003 SC 2669; Ankush Maruti Shinde & Ors. v. State of Maharashtra, 2009 (7 ) SCR182 = (2009) 6 SCC 667; and Jarnail Singh & Ors. v. State of Punjab, 2009 (13 ) SCR774 = (2009) 9 SCC 719; Shaikh Umar Ahmed Shaikh & Anr. v. State of Maharashtra, 1998 ( 2 ) SCR1209= AIR 1998 SC 1922; Lalli @ Jagdeep Singh v. State of Rajasthan, (2003) 12 SCC 666; Dastagir Sab & Anr. v. State of Karnataka, 2004 (1 ) SCR952 = (2004) 3 SCC 106; Maya Kaur Baldevsingh Sardar & Anr. v. State of Maharashtra, 2007 (10 ) SCR752 = (2007) 12 SCC 654; and Aslam @ Deewan v. State of Rajasthan, 2008 (13 ) SCR1010= (2008) 9 SCC 227; Yuvaraj Ambar Mohite v. State of Maharashtra, 2006 (7) Suppl. SCR677 = (2006) 12 SCC 512; D. Gopalakrishnan v. Sadanand Naik & Ors., 2004 (5) Suppl. SCR520 =AIR 2004 SC 4965; Kartar Singh v. State of Punjab 1994 ( 2 ) SCR 375=, (1994) 3 SCC 569; Umar Abdul Sakoor Sorathia v. Intelligence Officer, Narcotic Control Bureau, 1999 ( 1 ) Suppl. SCR113=AIR 1999 SC 2562 – referred to. 3.5 In the instant case, it is evident that all the accused for whom test identification parades were conducted were identified by some of the witnesses in the jail. They were also identified by some of the eye witnesses/injured witnesses in the court. Both the courts below came to the conclusion that identification of A-2 to A-4 by the witnesses, if examined in conjunction with the evidence of the Judicial Magistrate, PW-89 and his reports, particularly, Exh. P.137 and P.142, leaves no room for doubt regarding the involvement of A-2 to A-4 in the crime. There is no cogent reason to take a contrary view. Not supporting of the prosecution case by PW.86 would not tilt the balance of the case in favour of the appellants. [para 39 and 42] [298-F-G; 299-F-G] 4.1 The provisions of s.195 Cr.PC are mandatory. Non-compliance of it would vitiate the prosecution and all other consequential orders. The law does not permit taking cognizance of any offence punishable u/s 188 IPC unless there is a complaint by the competent public servant whose lawful order has not been complied with. The complaint must be in writing. The court cannot assume cognizance of the case without such complaint. In the absence of such a complaint, the trial and conviction will be void ab initio being without jurisdiction. In the instant case, no such complaint had ever been filed. Therefore, it was not permissible for the trial Court to frame a charge u/s 188 IPC. [para 25 and 27] [293-C-D; F-G] M.S. Ahlawat v. State of Haryana & Anr., 1999 (4) Suppl. SCR160=AIR 2000 SC 168; Sachida Nand Singh & Anr. v. State of Bihar & Anr. 1998 ( 1 ) SCR 492= (1998) 2 SCC 493; and Daulat Ram v. State of Punjab 1962 Suppl. SCR 812= AIR 1962 SC 1206 – relied on. Govind Mehta v. The State of Bihar1971 Suppl. SCR777= AIR 1971 SC 1708; Patel Laljibhai Somabhai v. The State of Gujarat 1971 Suppl. SCR834=AIR 1971 SC 1935; Surjit Singh & Ors. v. Balbir Singh, 1996 ( 3 ) SCR 70= (1996) 3 SCC 533; State of Punjab v. Raj Singh & Anr. 1998 (1) SCR223= (1998) 2 SCC 391; K. Vengadachalam v. K.C. Palanisamy & Ors. (2005) 7 SCC 352; and Iqbal Singh Marwah & Anr. v. Meenakshi Marwah & Anr. 2005 (2) SCR 708 = AIR 2005 SC 2119; Basir-ul-Haq & Ors. v. The State of West Bengal, 1953 SCR836= AIR 1953 SC 293; and Durgacharan Naik & Ors v. State of Orissa, 1966 SCR636= AIR 1966 SC 1775 – referred to. 4.2 However, it cannot be said that absence of a complaint u/s 195 Cr.PC falsifies the genesis of the prosecution case and is fatal to the entire case. In the instant case, there is ample evidence on record to show that there was a prohibitory order, which had been issued by the competent officer one day before; it had been given due publicity and had been brought to the notice of the public at large; it has been violated as there is no denial even by the accused persons that there was no `Rasta Roko Andolan’. The agitation which initially started peacefully, turned ugly and violent when the public transport vehicles were subjected to attack and damage. In such an eventuality, in case the charges u/s 188 IPC are quashed, it would by no means have any bearing on the case of the prosecution, so far as the charges for other offences are concerned. [para 27] [293-G-H; 394-A-C] 5. As regards clubbing of two crimes bearing Nos. 188 and 190 of 2000 together, keeping in view the totality of the circumstances and the sequence in which the two incidents occurred and taking into consideration the evidence of drivers and conductors/cleaners of the vehicles involved in the first incident and the evidence PW-87, the second occurrence was nothing but a fall out of the first one. The damage caused to the public transport vehicles and the consequential burning of the University bus remained part of one and the same incident. Merely because two separate complaints had been lodged, did not mean that they could not be clubbed together and one charge sheet could not be filed. [para 28] [294-D-F] T.T. Antony v. State of Kerala & Ors. 2001 ( 3 ) SCR 942= (2001) 6 SCC 181 – relied on. 6.1 So far as sentencing is concerned, criminal law requires strict adherence to the rule of proportionality in providing punishment according to the culpability of each kind of criminal conduct keeping in mind the effect of not awarding just punishment on the society. [para 75] State of Punjab v. Rakesh Kumar, 2008 (12 ) SCR929 = AIR 2009 SC 391; and Sahdev v. Jaibar @ Jai Dev & Ors., 2009 (3 ) SCR722 =(2009) 11 SCC 798; Bantu v. State of U.P., 2008 (11) SCR184 = (2008) 11 SCC 113, Sevaka Perumal v. State of T.N. 1991 ( 2 ) SCR 711= AIR 1991 SC 1463 – relied on. 6.2 Life imprisonment is the rule and death penalty an exception. The “rarest of the rare case” comes when a convict would be a menace and threat to the harmonious and peaceful co- existence of the society. Where an accused does not act on any spur-of-the-moment provocation and he indulged himself in a deliberately planned crime and meticulously executed it, the death sentence may be the most appropriate punishment for such a ghastly crime. Therefore, the court must satisfy itself that death penalty would be the only punishment which can be meted out to a convict. It has to be considered whether any other punishment would be completely inadequate and what would be the mitigating and aggravating circumstances in the case. Murder is always foul. However, the degree of brutality, depravity, diabolic nature and the circumstances under which murders take place differ in each case. [para 75-76] [315-E-H; 316-A] Bachan Singh v. State of Punjab, AIR 1980 SC 898; Machhi Singh & Ors. v. State of Punjab, 1983 ( 3 ) SCR 413=AIR 1983 SC 957; Devender Pal Singh v. State of NCT of Delhi, 2002 ( 2 ) SCR 767=AIR 2002 SC 1661; Atbir v. Govt. of N.C.T. of Delhi, JT 2010 (8) SC 372; Mahesh v. State of M.P., 1987 ( 2 ) SCR 710= AIR 1987 SC 1346 – relied on. 6.3 In the instant case, the girl-students of the University, while on tour had been the victims of a heinous crime. A demonstration by the appellants which had started peacefully, took an ugly turn when the appellants started damaging public transport vehicles. Damaging the public transport vehicles did not satisfy them and they became the law unto themselves. Some of the appellants had evil designs to cause damage to a greater extent so that people may learn a “lesson”. In order to succeed in their mission, A-2, A-3 and A-4 went to the extent of sprinkling petrol in a bus full of girl students and setting it on fire with the students still inside the bus. They were fully aware that the girls might not be able to escape, when they set the bus on fire. As it happened, some of the girls did not escape the burning bus. No provocation of any kind had been offered by any of the girls or by any person whatsoever. A-2, A-3 and A-4 did not pay any heed to the pleas made by PW1 and PW2, the teachers, to spare the girls. They caused the death of three innocent young girls and burn injuries to another twenty. There can be absolutely no justification for the commission of such a brutal offence. This shows the highest degree of depravity and brutality on the part of A-2, A-3 and A-4. [para 77] [316-C-H; 317-A-B] 6.4 The aggravating circumstances in the case of A-2, A-3 and A-4 are that this offence had been committed after previous planning and with extreme brutality. These murders involved exceptional depravity on the part of A-2, A-3 and A-4. These were the murders of helpless, innocent, unarmed, young girl students in a totally unprovoked situation. No mitigating circumstances could be pointed out to impose a lesser sentence on them. Their activities were not only barbaric but inhuman to the highest degree. Thus, the manner of the commission of the offence in the present case is extremely brutal, diabolical, grotesque and cruel. It is shocking to the collective conscience of society. There is no cogent reason to interfere with the punishment of death sentence awarded to A-2, A-3 and A-4 by the courts below and the same is confirmed. [para 77] [317-C-F] 6.5 So far as the other appellants are concerned, the maximum sentence to be served by them as per the judgment of the High Court is two years. Most of these appellants have already served more than 14 months of their sentence and they are on bail. The incident occurred on 2.2.2000, so more than ten and a half years have already elapsed since the incident. These appellants have already suffered a lot. Their sentences are reduced to the period undergone. [para 77] [317-G] 7. The crime occurred right in the middle of a busy city. Innocent girls trapped in a burning bus were shouting for help and only the male students from their University came to their rescue and succeeded in saving some of them. There were large number of people including the shopkeepers, media persons and on-duty police personnel, present at the place of the “Rasta Roko Andolan”, which was very close to the place of the occurrence of the crime, and none of them considered it proper to help in the rescue of the victims. Even if the common man fails to respond to the call of his conscience, the police should not have remained inactive. But the police stood there and witnessed such a heinous crime being committed and allowed the burning of the bus and roasting of the innocent children. The administration did not bother to find out why the police did not intervene and assist in the rescue of the girl students, much less reprimand them for failing in their duty. If the common citizens and public officials present at the scene of the crime had done their duty, the death of three innocent young girls could have been prevented. [para 78] [318-A-D] Case Law Reference: 1971 Suppl. SCR777 referred to para 20 1971 Suppl. SCR834 referred to para 20 1996 (3) SCR70 referred to para 20 1998 (1) SCR223 referred to para 20 2005) 7 SCC 352 referred to para 20 2005 (2) SCR708 referred to para 20 1953 SCR836 referred to para 21 1966 SCR636 referred to para 21 1999 (4) Suppl. SCR160 relied on para 22 1998 ( 1 ) SCR 492 relied on para 23 1962 Suppl. SCR 812 relied on para 24 2001 ( 3 ) SCR 942 relied on para 28 AIR 2004 SC 299 referred to para 29 AIR 1994 SC 2420 referred to para 30 2003 (1 ) Suppl. SCR443 referred to para 30 2009 (7 ) SCR182 referred to para 30 2009 (13 ) SCR774 referred to para 30 2004 (1 ) SCR952 referred to para 30 (2003) 12 SCC 666 referred to para 30 1998 ( 2 ) SCR1209 referred to para 30 2007 (10 ) SCR752 referred to para 30 2008 (13 ) SCR1010 referred to para 30 2006 (7 ) Suppl. SCR677 referred to para 31 2004 (5 ) Suppl. SCR520 referred to para 31 1999 (4 ) Suppl. SCR286 relied on para 32 2010 (2 ) SCR633 referred to para 33 1971 ( 3 ) SCR 914 referred to para 33 1974 ( 1 ) SCR 78 referred to para 33 1994 ( 2 ) SCR 375 referred to para 34 1994 ( 1 ) Suppl. SCR 483 referred to para 34 1999 ( 1 ) Suppl. SCR 113 referred to para 35 AIR 1974 SC 220 relied on para 44 1995 ( 2 ) Suppl. SCR 629 relied on para 44 1998 ( 2 ) SCR1097 relied on para 44 1999 ( 1 ) SCR 55 relied on para 44 1999 ( 3 ) Suppl. SCR 359 relied on para 44 2003 ( 1 ) SCR 754 relied on para 44 2002 ( 1 ) SCR1011 relied on para 44 2004 (1 ) Suppl. SCR195 relied on para 44 2006 (10 ) Suppl. SCR662 relied on para 65 2000 ( 3 ) SCR 880 relied on para 66 AIR 2004 SC 2865 relied on para 66 AIR 1947 PC 67 referred to para 66 1976 ( 2 ) SCR 921 relied on para 69 1977 ( 1 ) SCR 439 relied on para 69 1980 ( 1 ) SCR 95 relied on para 69 1991 ( 3 ) SCR 1 relied on para 69 1996 ( 4 ) Suppl. SCR 631 relied on para 70 2002 ( 2 ) Suppl. SCR 135 relied on para 70 (2006) 13 SCC 516 relied on para 70 2006 (1 ) SCR519 relied on para 70 2007 (11 ) SCR300 relied on para 70 2009 (7 ) SCR383 relied on para 70 1973 ( 1 ) SCR 472 relied on para 71 AIR 1985 SC 48 relied on para 71 1983 ( 3 ) SCR 280 relied on para 71 2007 (7 ) SCR1000 relied on para 71 (2009) 11 SCC 588 relied on para 71 2009 (14 ) SCR106 relied on para 71 2009 (2 ) SCR765 relied on para 71 AIR 1980 SC 898 relied on para 72 1983 ( 3 ) SCR 413 relied on para 73 2002 ( 2 ) SCR 767 relied on para 74 JT 2010 (8) SC 372 relied on para 74 1987 ( 2 ) SCR 710 relied on para 75 2008 (12 ) SCR929 relied on para 75 2009 (3 ) SCR722 relied on para 75 2008 (11 ) SCR184 relied on para 75 1991 ( 2 ) SCR 711 relied on para 75 CRIMINAL APPELLATE JURISDICTION : Criminal Appeal Nos. 127-130 of 2008. From the Judgment & Order dated 06.12.2007 of the High Court of Madras Death Sentence Referred Trial No. 1 of 2007 with Criminal Appeal Nos. 226, 266, & 267 of 2007. With Criminal Appeal No. 1632-1634 of 2010. Sushil Kumar, P.N. Prakash, P.H. Manoj Pandian, Subramonium Prasad, Shyam D. Nandan, Rajat Khattry, Gurukrishnakumar, Aditya Kumar, Anmol Thakral for the Appellants. Altaf Ahmed, R. Shunmugasundaram, Srinivasan, Promila, S. Thananjayan, R. Nedumaran for the Respondent.
REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NOS. 127-130 OF 2008 C. Muniappan & Ors. … Appellants Vs. State of Tamil Nadu …Respondents WITH CRIMINAL APPEAL NOS.1632-1634 OF 2010 (Arising out of SLP(Crl.) Nos. 1482-1484 of 2008) D.K. Rajendran & Ors. etc.etc. …Appellants Vs. State of Tamil Nadu ….Respondent JUDGMENT … 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
Constitution of India-Articles 25 and 26-Societies Registration Act, 1860-Tamil Nadu Societies Registration Act, 1975-Sections 44 and 53-Suit filed before High Court to declare elections of a Society as null and void-Advocate Commissioner appointed by the High Court held elections and submitted a Report stating that the Society has become defunct-High Court set aside the elections on that ground-Correctness of-Held, State Act provides for mechanism for removal of a defunct Society from the Register of Societies and dissolve the registered Society-It is for the authorities under the Act and not the High Court to look into whether a Society has become defunct-Hence, setting aside the elections on the ground that the Society has become defunct is not valid. A Church, initially registered under the Societies Registration Act, 1860, came to be governed under the Tamil Nadu Societies Registration Act, 1975. The Church runs a large number of schools and hospitals. A suit was filed against the Church before High Court to declare the elections conducted by its Society as null and void. The High Court appointed an Advocate Commissioner to hold the elections. The Commissioner conducted the elections and submitted a report to the High Court stating that the Society has become defunct. The High Court, on the basis of the report, gave directions to the elected members of the Society to apply for fresh registration with the Registrar of Societies. On non-compliance of the directions, the High Court set aside the elections of the Society. Appellant and one another, who were elected members, filed an application for impleading them as parties to the suit before the High Court. The High Court dismissed the application on the ground that the elections have already been declared null and void. The High Court appointed an Administrator for managing the Society. In appeal to this Court, the appellants contended that the High Court erred in declaring the elections null and void since the Registrar of Societies appointed under the Tamil Nadu Societies Registration Act, 1975 has sufficient powers to inquire into the affairs of a Society and cancel registration or order winding up or remove defunct societies from the Register; that the elections, conducted under the supervision of the Advocate Commissioner, have not been held to be unfair; that the order passed by the High Court on the basis of the purported consent of other elected members, without making them as parties, is a nullity; that the appointment of the Administrator was beyond the jurisdiction of the High Court; and that it violated the fundamental rights of the appellants under Articles 25 and 26 of the Constitution of India. =Allowing the appeals, the Court HELD: 1.1. The Tamil Nadu Societies Registration Act, 1975 provides for the mode and manner in which registration of a society is to be cancelled and winding up of a society and removal of a defunct registered society from the registers maintained by the Inspector General of Registration. The statutory authority under the Act abdicated itself of its statutory functions. It was for the statutory authorities to take recourse to such actions as are provided for in the Act and Rules framed thereunder. In the event, the Society became defunct or other statutory requirements were not complied with by the members of the Society, penal measures could have been taken but in no situation the elections of the office bearers could have been set aside. [221-e, f; 226-a, b, c, d, e] 1.2. Right to contest an election of an office bearer of the Society is a statutory right of the member thereof. Such a right also exists under the bye-laws of the society. Once a valid election was held, the High Court could not have directed setting aside of an election only on the purported ground that it became defunct. The High Court in a pending suit could not have done so. It should have relegated the parties to take recourse to such remedies as are available in law for questioning the validity of the election before the appropriate forum. [226-e-f; 227-d-e] Board of Control for Cricket in India and Anr. v. Netaji Cricket Club and Ors., [2005] 4 SCC 741, referred to. 1.3. Keeping in view the interest of the general public, the Court can oversee its functions in case of mismanagement of charitable organisations, although run by minorities. The rights under Articles 25 and 26 of the Constitution of India are not absolute and unfettered. The right to manage does not carry with it a right to mismanage. [227-h; 228-a] Guruvayoor Devaswom Managing Committee and Anr. v. C.K. Rajan and Ors., [2003] 7 SCC 546, referred to. V. Giri, Ajay K. Jain, Dileep Pillai, Sajith P., M.P. Vinod, Dr. A. Francis Julian, Ashwani Bhardwaj, A. Mariarputham, Aruna Mathur and Mini N. Nair (for M/s. Arputham Aruna & Co.) for the Appellants. T.L.V. Iyer, S. Rajappa, Sumit Kumar, M.A. Chinnasamy and Ambrish Kumar for the Respondents.=2007 AIR 1337, 2006(6 )Suppl.SCR219 , 2006(11 )SCC624 , 2006(9 )SCALE245 , 2006(12 )JT432
CASE NO.: Appeal (civil) 4123 of 2006 PETITIONER: I. Nelson & Anr. RESPONDENT: Kallayam Pastorate & Ors. DATE OF JUDGMENT: 14/09/2006 BENCH: S.B. Sinha & Dalveer Bhandari JUDGMENT: J U D G M E N T (Arising out of SLP (C) Nos. 26954-26969/2005) S.B. Sinha, J. Leave granted. The Indian Evangelical Lutheran Church (‘the Church’, … Continue reading
Labour Laws – Reinstatement with back wages – Absence without leave – Deemed as resignation as per Bye-Laws and Rules – Reappointment on compassionate ground ordered – After re-appointment, employee again going on leave without permission – Absence again deemed as his resignation – Writ petition by employee seeking his re-instatement in compliance with order of re-appointment – Single Judge of High Court dismissing the petition holding that the employee concealed the fact of his re-appointment – Division Bench of High Court allowing the writ appeal, holding that despite the order of re-appointment by respondent No. 3, he was not employed and directed reinstatement with back wages – In compliance of Division Bench order, employee reinstated – Thereafter, again he failed to report for work – In departmental inquiry for misconduct found guilty – On appeal, held: The decision of High Court was based on erroneous facts – On facts, High Court order not sustainable so far as payment of back wages and other benefits are concerned – Interference with the order regarding reinstatement not called for in view of his having been found guilty in domestic inquiry – The order is modified to the extent that the employee is entitled to full back wages from the date of his joining duty on reinstatement in compliance of order of Division Bench till the date he failed to report for work – Tamil Nadu Co-operative Societies Rules, 1988 – r. 149(10)(1). Respondent No. 1, appointed with the appellant-Society, remained absent without leave from November, 1990. Appellant treated him to have resigned from service as per the Bye-Laws of the Society and r. 149(10)(1) of Tamil Nadu Co-operative Societies Rules, 1988. After a lapse of 5 years, respondent No. 1 raised industrial dispute. During pendency of the dispute, he was re-appointed by respondent No. 3, on compassionate ground on certain conditions inter-alia that the period of his absence from duty till the date of his joining duty after re-appointment, shall be treated as leave without pay. After his re-appointment, respondent No. 1 was asked to join another Society. After joining there, he again failed to report for work for about one year. That Society passed a resolution to send him back to his parent Society. He was once again deemed to have resigned from the services of the Society. After about 3 years of the passing of the resolution, he filed a writ petition seeking his appointment in appellant- Society in pursuance of the order of re-appointment passed by respondent No. 3. He also sought all the salaries and other benefits from November, 1990. The writ petition was dismissed by Single Judge of High Court on account of suppression of material facts. Writ appeal, against the same was allowed by Division Bench of High Court directing to reinstate respondent No. 1 with back wages from the date of his dismissal, till the date of his reinstatement, together with all other attendant benefits. Hence the present appeal. During pendency of the case before Supreme Court, the appellant-Society reinstated the respondent in compliance of the impugned order passed by the Division Bench of High Court. The respondent, after joining, again failed to report for work. He was placed under suspension and domestic inquiry was initiated against him. Inquiry Officer held that charges against him were duly proved. =Disposing the appeal, the Court HELD: 1. The decision of the Division Bench of the High Court impugned in the instant appeal, cannot be sustained at least as far as payment of back wages and other benefits are concerned. The conduct of the respondent No.1 does not justify the relief given to him by virtue of the impugned order. Despite the fact that the Single Judge pointed out that the prayer made in the Writ Petition could not be granted on account of suppression of material facts which ran counter to such prayer, the Division Bench appears to have lost sight of the same. As the facts reveal, the respondent No.1 unilaterally stopped coming to work without submitting any leave application or prior intimation and that too not for a day or two, but for months on end. The decision of the Appellant-Society to re-appoint the respondent No.1 on compassionate grounds leading to the order of respondent No. 3 permitting the Appellant-Society to re-appoint him, was in itself a concession made to the respondent No.1 which he misused subsequently. [Para 17] [331-C-G] 2. Even after he was released from the Vijayapuram Society on 24th February, 1997, the Respondent No.1 remained silent till 30th September, 2000, when he filed the writ petition for a direction to appoint him to a suitable post in the Appellant-Society or the Sankarapuram Taluk Co- operative Housing Society pursuant to the order passed by respondent No. 3. Despite the maximum latitude shown to him by allowing him to rejoin his duties in the Appellant-Society pursuant to the impugned order passed by Division Bench of High Court, the Respondent No.1 again failed to report for work, as a result he was placed under suspension and a domestic enquiry was conducted in which he was found to be guilty of the charges brought against him. [Para 18] [331-H; 332-A-C] 3. The Division Bench of the High Court does not appear to have considered the events which occurred after the respondent No.1 was reinstated in service pursuant to the order passed by respondent No. 3. The fact that thereafter, on account of his failure to report for duties for more than one year, the respondent No.1 was once again deemed to have resigned from the services of the Society u/r. 149(10)(1) of Tamil Nadu Co-operative Societies Rules, 1988 appears to have been overlooked by the High Court. The Division Bench of the High Court does not also appear to have taken into consideration the fact that the respondent No.1 remained silent for about three years, when he filed Writ Petition for a direction for his appointment. [Para 19] [332-D-G] 4. The events, prior to the date when the respondent No. 1 joined the service after the order passed by the respondent No. 3, and thereafter, were not seriously considered by the Division Bench of the High Court which proceeded on the basis that despite the order passed by the respondent No. 3, the Respondent No.1 had not been given appointment, which fact was entirely erroneous. [Para 20] [332-H; 333-A-B] Novartis India Limited vs. State of West Bengal (2009) 3 SCC 124, distinguished. 5. In the circumstances of the case, the judgment and order of the Division Bench of the High Court cannot be sustained. However, having regard to the fact that a domestic inquiry was conducted against the respondent No.1, in which he was found guilty, interference with that part of the order impugned, directing reinstatement is not called for, but the Court is not inclined to maintain the order of the Division Bench of the High Court regarding payment of back wages. [Para 21] [333-D-E] 6. In the circumstances of the case, the Court is inclined to modify the part of the impugned order directing payment of back wages by directing that the Respondent No.1 will be entitled to full wages only for the period between the date when respondent No. 1 joined duty pursuant to impugned judgment and the date when he failed to join duty for which departmental inquiry was initiated, and other connected benefits, if any. As far as payment of full salary for the period under suspension undergone by the respondent No.1 during which period he was being paid subsistence allowance is concerned, the same will depend on the final order to be passed in the disciplinary proceedings already initiated against the respondent No.1. [Para 23] [334-A-C] Case Law Reference: (2009) 3 SCC 124 Distinguished. Para 20 CIVIL APPELLATE JURISDICTION : Civil Appeal No. 4357 of 2010. From the Judgment & Order dated 27.06.2007 of the High Court of Judicature at Madras in W.A. No. 3748 of 2004. N. Shoba, Sriram J. Thalapathy and Adhi Venkataraman for the appellant. T. Harish Kumar and Anitha Shenoy for the Respondents.
REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO.4357 OF 2010 (@SPECIAL LEAVE PETITION(C) No.18834 OF 2007) Kallakurichi Taluk Co-op. Housing Society Ltd. … Appellant Vs. M. Maria Soosai & Ors. … Respondents J U D G M E N T 2 ALTAMAS KABIR, J. 1. Leave granted. 2. This … Continue reading
advocatemmmohan 