west bengal

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driver of the said taxi involved in the offence undergone seven years and six months in jail, reduced from 10 years to served setence = even if the prosecution case is accepted that the appellant had facilitated in the commission of crime, considering the fact that he did not enter the jewellery shop and was not armed with any weapon, the maximum sentence of 10 years is excessive. On going through all the aspects, particularly, the entire evidence of the owner of the taxi PW-12, we inclined to accept the claim of Mr. Ghosh. – It is relevant to point out that PW-12, nowhere in his statement has described about any illegal activity on the part of the appellant who was his taxi driver. Inasmuch as no adverse statement has been made by him and also of the fact that till date, he had already undergone seven years and six months in jail, while confirming his conviction, we feel that ends of justice would be met by altering his sentence to the period already undergone. 11) In view of our conclusion on the sentence, we direct that the appellant be released forthwith, if he is not required in any other case. The appeal is disposed of on the above terms.

published in      http://judis.nic.in/supremecourt/imgst.aspx?filename=40568 REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION 1 CRIMINAL APPEAL NO. 1109 OF 2009   Rajendra Sharma …. Appellant(s) Versus State of West Bengal …. Respondent(s) 2     J U D G M E N T   P.Sathasivam,J. 1) This appeal is filed against the final … Continue reading

MEDICAL NEGLIGENCE – The State Commission, therefore, directed the Appellants to jointly and severally pay the Respondent (i) Rs.77,023/- towards expenditure upto 30.05.2001; (ii) Rs.70,000/- as damages; and (iii) Rs.10,000/- as litigation costs within a period of 45 days from the date of the communication of the order.- It is an admitted fact that the Respondent was admitted for gallbladder surgery in Appellant/Institute and as a part of the anesthesia procedure a cylindrical pipe was inserted inside his throat and since it could not be placed in the desired position despite several attempts, the operation had to be abandoned. It was later confirmed that the intubation was unsuccessful because of a jutting cartilage inside the throat which was a pre-existing structural problem in the Respondent’s throat. = it was for the Appellants as medical professionals to have got all the tests done and once there was a problem with the intubation, they should not have made repeated attempts to thrust the pipe, which resulted in serious injuries leading to other complications. – the Respondent had developed a life threatening condition because of the pharyngeal tear close to larynx and multiple air filled cavity in Appellant No.1/Institute – the due and reasonable care was not taken by the Appellants in the treatment of the Respondent while intubating the cylindrical pipe in connection with the anesthesia. While the problem was apparently caused because of a structural defect in the Respondent’s throat, severe damage could have been averted or minimized if the Appellants had been more sensitive and careful and not insisted in pushing the tube several times despite knowing that there were problems. There is no other explanation for the extensive and severe injuries caused inside the Respondent’s throat. We are also unable to accept the contention of the Appellants that the onus was on the Respondent to have disclosed the relevant facts regarding structural defects since there is no evidence that he was aware of this problem. If indeed he had been aware, there was no reason for him to have withheld this fact.

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI FIRST APPEAL NO. 114 OF 2009 (Against the order dated 16.02.2009 in SC Case No. 100/O/2001 of the West Bengal State Consumer Disputes Redressal Commission, Kolkata)   1. ILS Hospital Previously known as Institute of Laparoscopic Surgery Jeewansatya, DD-6 Salt Lake City, Sector-1 Kolkata-700064 2. Dr. Om Tantia Director … Continue reading

Section 311 Cr.P.C. empowers the court to summon a material witness, or to examine a person present at “any stage” of “any enquiry”, or “trial”, or “any other proceedings” under the Cr.P.C., or to summon any person as a witness, or to recall and re-examine any person who has already been examined if his evidence appears to it, to be essential to the arrival of a just decision of the case.= Undoubtedly, an application filed under Section 311 Cr.P.C. must be allowed if fresh evidence is being produced to facilitate a just decision, however, in the instant case, the learned Trial Court prejudged the evidence of the witness sought to be examined by the appellant, and thereby cause grave and material prejudice to the appellant as regards her defence, which tantamounts to a flagrant violation of the principles of law governing the production of such evidence in keeping with the provisions of Section 311 Cr.P.C. By doing so, the Trial Court reached the conclusion that the production of such evidence by the defence was not essential to facilitate a just decision of the case. Such an assumption is wholly misconceived, and is not tenable in law as the accused has every right to adduce evidence in rebuttal of the evidence brought on record by the prosecution. The court must examine whether such additional evidence is necessary to facilitate a just and proper decision of the case. The examination of the hand-writing expert may therefore be necessary to rebut the evidence of Rabi Lal Thapa (PW.40), and a request made for his examination ought not to have been rejected on the sole ground that the opinion of the hand-writing expert would not be conclusive. In such a situation, the only issue that ought to have been considered by the courts below, is whether the evidence proposed to be adduced was relevant or not. Identical is the position regarding the panchnama witness, and the court is justified in weighing evidence, only and only once the same has been laid before it and brought on record. Mr. B.B. Sharma, thus, may be in a position to depose with respect to whether the documents alleged to have been found, or to have been seized, were actually recovered or not, and therefore, from the point of view of the appellant, his examination might prove to be essential and imperative for facilitating a just decision of the case. The High Court has simply quoted relevant paragraphs from the judgment of the Trial Court and has approved the same without giving proper reasons, merely observing that the additional evidence sought to be brought on record was not essential for the purpose of arriving at a just decision. Furthermore, the same is not a case where if the application filed by the appellant had been allowed, the process would have taken much time. In fact, disallowing the said application, has caused delay. No prejudice would have been caused to the prosecution, if the defence had been permitted to examine said three witnesses. In view of above, the appeal succeeds and is allowed. The judgment and order of the Trial Court, as well as of the High Court impugned before us, are set aside. The application under Section 311 Cr.P.C. filed by the appellant is allowed. The parties are directed to appear before the learned Trial Court on the 17th of May, 2013, and the learned Trial Court is requested to fix a date on which the appellant shall produce the three witnesses, and the same may thereafter be examined expeditiously in accordance with law, and without causing any further delay. Needless to say that the prosecution will be entitled to cross examine them.

Page 1 REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.709 of 2013 (Arising out of SLP (Crl.) No.3271 of 2013) Natasha Singh …Appellant Versus CBI (State) …Respondents J U D G M E N T Dr. B.S. CHAUHAN, J. 1. Leave granted. 2. This appeal has been preferred against the impugned … Continue reading

We are in this case not concerned with any dispute that is pending before the Scrutiny Committee, this is a case of total non-compliance of the conditions stipulated in the notification (information to the candidates) wherein it has been specifically stated that a candidate claiming to be SC/ST/BC must have a certificate in support of his/her claim from a competent authority specified in the West Bengal Scheduled Caste and Scheduled Tribes (Identification) Act, 1994. In our view, the guidelines in in Kumari Madhuri Patil’s case (supra) or the brochure issued by the Government of India, Ministry of Personnel, Public Grievances and Pensions, Department of Personnel and Training, New Delhi would not override the specific conditions stipulated in the notification (information to the candidates) of compliance of the provisions of the West Bengal Scheduled Caste and Scheduled Tribes (Identification) Act, 1994. In such circumstances we find no error in the decision taken by the Commission in not entertaining the application of the respondent as a member of the ST Community due to non-production of the certificate from the competent authority specified in the above-mentioned Act. 17. The appeal is accordingly allowed and the Judgment of the High Court is set aside. However, we are inclined to record the submission of the learned senior counsel, appearing for the appellant that the respondent would be appointed as a judicial officer in the West Bengal Judicial Service consequent to the examination conducted in the year 2010 since he has produced the Certificate issued by the competent authority under The West Bengal Scheduled Castes and Scheduled Tribes (Identification) Act, 1994. Appeal is, therefore, allowed as above, however there will be no order as to costs.


under Sections 147, 148, 149, 364, 307, 302 IPC= “But it is well settled that interested evidence is not necessarily unreliable evidence. Even partisanship by itself is not a valid ground for discrediting or rejecting sworn testimony. Nor can it be laid down as an invariable rule that interested evidence can never form the basis of conviction unless corroborated to a material extent in material particulars by independent evidence. All that is necessary is that the evidence of interested witnesses should be subjected to careful scrutiny and accepted with caution. If on such scrutiny, the interested testimony is found to be intrinsically reliable or inherently probable, it may, by itself, be sufficient, in the circumstances of the particular case, to base a conviction thereon. Although in the matter of appreciation of evidence, no hard and fast rule can be laid down, yet, in most cases, in evaluating the evidence of an interested or even a partisan witness, it is useful as a first step to focus attention on the question, whether the presence of the witness at the scene of the crime at the material time was probable. If so, whether the substratum of the story narrated by the witness, being consistent with the other evidence on record, the natural course of human events, the surrounding circumstances and inherent probabilities of the case, is such which will carry conviction with a prudent person. If the answer to these questions be in the affirmative, and the evidence of the witness appears to the court to be almost flawless, and free from suspicion, it may accept it, without seeking corroboration from any other source. Since perfection in this imperfect world is seldom to be found, and the evidence of a witness, more so of an interested witness, is generally fringed with embellishment and exaggerations, however true in the main, the court may look for some assurance, the nature and extent of which will vary according to the circumstances of the particular case, from independent evidence, circumstantial or direct, before finding the accused guilty on the basis of his interested testimony. We may again emphasise that these are only broad guidelines which may often be useful in assessing interested testimony, and are not iron-cased rules uniformly applicable in all situations.”= the prosecution has succeeded in proving the place of occurrence, the time of occurrence as well as the manner of assault made on injured persons who are all examined by the Court and their evidence fully corroborates the prosecution case. We notice, in this case, that there is sufficient evidence to show that the incident had happened on 5.7.1983, as projected by the prosecution. The prosecution has successfully proved that it was the appellants and others who had committed the crime, so found by the trial Court as well as the High Court. Large number of persons were involved in the incident that occurred on 5.7.1983. Several injuries were caused by the appellants on the vital parts of the deceased and the injured persons, with dangerous weapons and the injuries are sufficient, as certified by the doctor, in the ordinary course of nature to cause death and the accused persons intended to inflict the injuries that were found on the person of the deceased and injured persons. Appellants caused the injuries with deadly weapons, therefore, intention can be presumed regarding causing injuries as are likely to cause death, which falls under Section 304 Part I IPC and hence the conviction ordered by the trial court under Section 302 IPC is converted to Section 304 Part I IPC.

Page 1 1 REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 1421 OF 2007 Md. Ishaque and Others .. Appellants Versus State of West Bengal and Others ..Respondents J U D G M E N T K. S. RADHAKRISHNAN, J. 1. This appeal arises out of a common judgment and order … Continue reading

held that the Principal Secretary, Food and Supplies Department is not an appellate authority with respect to an order passed under Paragraph 11 of the West Bengal Kerosene Control Order, 1968 = the District Magistrate, Purulia passed an order dated 6.10.2009 whereby the quantum of Kerosene Oil allotted per month to respondent got enhanced. By the same order quantum of Kerosene Oil allotted to the appellant got reduced. Even if it is assumed that the order of the District Magistrate was under Paragraph 11 of the Control Order, such an order is not appealable under Paragraph 10 or before the Principal Secretary and Commissioner of Food and Supply Department, Govt. of West Bengal.- The impugned order passed by the District Magistrate, Purulia on 6th October, 2009 cannot be termed as an order passed under Paragraph 8 or Paragraph 9 of the Control Order. In such a situation, no appeal is maintainable under Paragraph 10 before the Principal Secretary or the Commissioner, Food and Supply Department, Government of West Bengal.- whether the Principal Secretary and Commissioner of the Food and Supply Department has jurisdiction to entertain the appeal against the order passed by District Magistrate.- The State has indeed the inherent power to alter or to set aside any order passed by the District Magistrate but it should follow the procedure as prescribed by the law, such an order should be passed by the authority empowered to do so on behalf of the State in the name of Governor of the State. 20. From the impugned order passed by the Principal Secretary and Commissioner, Food and Supply Department, it is apparent that the said order has been passed in the capacity of his designated post and not on behalf of the State. 21. Learned counsel for the appellant submitted that the writ petition was withdrawn by the appellant to move before the competent authority. But that does not mean that while withdrawing such case, the Court or any individual can confer jurisdiction upon any authority who otherwise is not so empowered under the Statute. 22. We, therefore, do not find any infirmity or illegality in the impugned order passed by the District Magistrate as affirmed by the Single Judge and the Division Bench. In absence of any merit the appeal is dismissed. The parties shall bear their respective costs.

Page 1 REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 7263 OF 2012 (Arising out of Special Leave Petition (Civil) No.9259/2012) RANJIT KUMAR MURMU       …. APPELLANT VERSUS M/S LACHMI NARAYAN BHOMROJ & ORS.       ….RESPONDENTS J UD G M E N T SUDHANSU JYOTI MUKHOPADHAYA, J. This appeal has been preferred by the appellant against the Judgment dated 2nd  February, 2012 passed by the Division Bench of the  Calcutta High Court in A.P.O.T     No.237   of   2010.   The   Division   Bench   while dismissing the appeal preferred by the appellant held that   the   Principal   Secretary,   Food   and   Supplies Department   is   not   an   appellate … Continue reading

vacant post of Headmaster at Howrah Siksha Niketan, “… A person whose name appears in the select list does not acquire any indefeasible right of appointment. Empanelment at the best is a condition of eligibility for purpose of appointment and by itself does not amount to selection or create a vested right to be appointed. The vacancies have to be filled up as per the statutory rules and in conformity with the constitutional mandate….” In the facts and circumstances of the case, the Division Bench of the High Court, in our view, committed an error in upsetting that direction We were informed by the parties that the respondent No.1 has been appointed as Headmaster during the pendency of the litigation at the pain of contempt proceedings against the parties. That appointment has come sometime in September 2010. Since, the order passed which appears to have culminated in the making of the appointment is being set aside, the question is whether we should direct immediate removal of the respondent or continuance of the arrangement till such time fresh selection process is initiated and completed in accordance with law. In our opinion, not only because the respondent has been holding the post for two years, but also because his removal would not immediately result in any benefit either to the institution or to the appellant before us, we, therefore, permit him to continue holding the post but only till such time a fresh selection is made against the vacancy. 19. In the result, we allow this appeal, set aside the order passed by the Division Bench and affirm that passed by Dipankar Datta, J. dated 27 th July, 2009 with the above direction. We make it clear that the respondent No.1 shall be entitled to all the monetary benefits for the period during which he actually works as the Headmaster of the school. The fact that he so works would not, however, create any equity in his favour nor constitute an additional weightage in the new selection process.

Page 1 REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 1310 OF 2013 (Arising out of S.L.P. (C) No.28824 of 2011) Vijoy Kumar Pandey …Appellant Versus Arvind Kumar Rai & Ors. …Respondents J U D G M E N T T.S. THAKUR, J. 1. Leave granted. 2. This appeal by special … Continue reading

“transportation for life” A sentence of transportation for life or imprisonment for life must prima facie be treated as transportation or imprisonment for the whole of the remaining period of the convicted person’s natural life. The petitioner – a life convict has filed this contempt petition against the respondents – the State of West Bengal and its officers for disobeying the order dated 24.11.2010 passed by this Court by not complying with the same within the prescribed period of eight weeks and failure to release him in accordance with the statute. – “The life convict was convicted on 18.01.1990 under Section 302/34 IPC and detained in connection with S.T. No. 01 of June 1989. He was released on parole from Presidency Correctional Home on 29.04.2005 in compliance with Hon’ble Supreme Court’s order in Writ Petition (Criminal) No. 279 of 2004. The police authority vehemently opposed the premature release of the life convict on the following grounds: (a) He was a notorious fellow in the area before his conviction. (b) He still maintains relationship with his old associates. 20Page 21 (c) He is within the age of 52 years with sound health. (d) His socio economic condition is not sound. (e) In case of his premature release there is every possibility of his reverting to criminality. (f) During his parole he has been technically serving life imprisonment binding him to refrain from criminal activities for the time being. There is every possibility of his committing further crimes. Considering the above fact, the Review Board did not find any reason to recommend premature release of the life convict now on parole.” It is seen that after careful consideration of all the aspects, the Review Board in its meeting held on 27.01.2011 did not recommend the petitioner for his premature release. The recommendation of the Review Board was placed before the State Government and the State Government accepted the recommendation of the State Sentence Review Board. The decision of the State Government was communicated to the petitioner vide letter No. 790-J dated 09.02.2012. In view of the decision of the State Sentence Review Board, approval by the State Government and the principles enunciated in various decisions of this Court including the decision of the Constitution Bench in Gopal Vinayak Godse’s case (supra), we find no merit in the contempt petition, consequently, the same is dismissed.

Page 1 REPORTABLE IN THE SUPREME COURT OF INDIA ORIGINAL JURISDICTION CONTEMPT PETITION (C) No. 363 OF 2011 IN WRIT PETITION (CRL.) No. 279 OF 2004 Life Convict Bengal @ Khoka @ Prasanta Sen …. Petitioner (s) Versus B.K. Srivastava & Ors. …. Alleged Contemnors/ Respondent(s) J U D G M E N T P.Sathasivam,J. 1) … Continue reading

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

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

conviction for the offence of culpable homicide not amounting to murder punishable under Section 304 Part I read with Section 34 IPC and sentence of rigorous imprisonment for a period of 10 years and fine?- There is no evidence to suggest any pre-meditation on the part of the appellants to assault the deceased leave alone evidence to show that assailants intended to kill the deceased. There was no previous enmity between the parties who were residents of the same locality except that there was a minor incident in which some hot words were exchanged between the deceased and Sudhir. Even on the following day i.e. on 22nd May, 2001 the incident near the drain involved the appellant-Bishnu Sarkar and the complainant- Debabrato Mazumder son of the deceased. It was only when the deceased noticed the incident and intervened to save the complainant, that Madhab Sarkar started assaulting the deceased and inflicted injuries on his body that resulted in his death. Both the Courts below have no doubt believed the prosecution case that appellant-Bishnu Sarkar was exhorting appellant-Madhab Sarkar to assault the deceased and, therefore, convicted him under Section 304 Part I with the help of Section 34 IPC. A distinction has, however, to be made in the facts and circumstances of the case between the sentence awarded to the appellant-Bishnu Sarkar who is over sixty five years old and that to be awarded to appellant-Madhab Sarkar. In the totality of the circumstances to which we have referred above, we are of the view that a rigorous sentence of three years to appellant no.1-Bishnu Sarkar and seven years to appellant no.2-Madhab Sarkar would meet the ends of justice. The sentence of fine and imprisonment in default of payment thereof will, however, remain unaltered. We accordingly allow the appeal in part and to the extent indicated above in modification of the orders passed by the Courts below.

REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 876 OF 2012 (Arising out of S.L.P (Crl.) No.546 OF 2011) Bishnupada Sarkar & Anr. …Appellants Versus State of West Bengal …Respondent J U D G M E N T T.S. THAKUR, J. 1. Leave granted. 2. This appeal arises out of … Continue reading

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