a journal of b.j.a. - patna high courtjudicialacademy.bih.nic.in/publication/juris...
TRANSCRIPT
JURIS-RAY
A Journal of B.J.A.
Mode of Citation 2013 (7) (i) Juris-Ray
Published by :
Bihar Judicial Academy
Tel : 0612-6532319 lllll Fax : 0612-2311123
Gaighat, Patna-7
CONSTITUTION OF INDIA
Preamble
WE, THE PEOPLE OF INDIA, having solemnly resolved
to constitute India into a SOVEREIGN SOCIALIST
SECULAR DEMOCRATIC REPUBLIC and to secure to all
its citizens :
JUSTICE, social, economic and political;
LIBERTY of thought, expression, belief, faith and
worship;
EQUALITY of status and of opportunity; and to promote
among them all;
FRATERNITY assuring the dignity of the individual and
the unity and integrity of the Nation;
IN OUR CONSTITUENT ASSEMBLY this twenty-sixth
day of November, 1949, do HEREBY ADOPT, ENACT AND
GIVE TO OURSELVES THIS CONSTITUTION.
lR;eso t;rs
CONTENTS
Page No.
Part I
Articles
1. Importance of a fair and active Judge in dispensation of justice in civil cases. 12
J.M. Sharma, Director, B.J.A.
2. Expanding Dimensions of Human Rights and District Legal Services Authority 16
By, Dinesh Kumar Sharma, District & Sessions Judge,
Vaishali at Hajipur (Bihar)
3. Judgment Writing (Criminal), the Act of Expression 21
OM Prakash, District & Sessions Judge Siwan
PART II
Synopsis of Important Judgments/Decisions
1. Code of Civil Procedure, 1908 29
(i) S.96 - First Appeal - Appellate Court is also a final court
of law and fact. First Appeal is a
valuable right of parties and unless
restricted by law, whole case therein
is open for rehearing both on
questions of fact and law.
(ii) Order VI, Rule 17 - Amendment of Plaint - Power to
r.w. S151 allow amendment is wide and can
be exercised at any stage of
proceeding. Courts have to be
liberal in accepting the same if same
is made prior to commencement of
trial. If such application is made
after commencement of trial, court
has to arrive at a conclusion that in
spite of due diligence, party could
not have raised the matter before
commencement of trial.
(iii) Order 41, Rule 17 (1) - Dismissal of Appeal for default - If
3
4
appellant does not appear when
appeal is called for hearing court
has to dismiss appeal. Provision
does not postulate a situation where
appeal has to be decided on merits
because possibility of allowing of
appeal is also there if appellant has
to good case on merits even if
nobody had appeared for appellant.
(iv) Order 7, R. 11 - Rejection of plaint has to be on
basis of averments made in plaint
plea taken in written statement are
totally irrelevant.
(v) Order 2, R. 2 - Cause of action -Meaning - It
means bundle of acts which taken
with law applicable to them gives
plaintiff right to relief against
defendant.
(vi) Order 1, Rr. 9 and 3 - Non-Joinder of necessary party as
defendant - Objection in this regard
should be taken before trial court
in order to provide opportunity to
plaintiff to rectify the defect, and
even then if plaintiff persists in not
impleading the party, consequences
of non-jointer may follow:
2. Criminal Procedure Code, 1973 35
(i) S.357 (3), 421 and 431 - Permissibility of imposition of
separate sentence of imprisonment
for default in payment of
compensation - Reasons therefore,
reiterated.
(ii) Ss.438 and 82 - Anticipatory bail -- Grant of proper
exercise of discretionary
jurisdiction/disposal of bail
application - Matters to be
considered by court - Nature and
5
gravity of accusation, antecedents,
possibility of abscondence of
accused, conduct of accused-
relevance.
(iii) Ss. 227 and 228 - Discharge of accused and framing
of charge against accused. Relative
scope- Distinction between Ss. 227
and 228 explained in detail.
(iv) Ss. 397 and 401 - Revisional jurisdiction - Nature,
scope and object of Revisional
Jurisdiction explained in detail.
Finality of order passed in
Revisional jurisdiction - subject only
to jurisdiction of Supreme Court
under Art. 136 of constitution.
(v) S. 439 -Bail - Considerations for grant of bail
kidnapping- Question posed should
be whether accused deserves to
be enlarged on bail or not. Although
period of custody is a relevant
factor but simultaneously totality of
circumstances and criminal
antecedents are also to be weighed.
Social concern has to be kept in
view in juxtaposition of individual
liberty. Imposition of conditions is
subsequent to order admitting an
accused to bail.
(vi) Ss. 24 and 25 - Duties of Public Prosecutor - Apart
from ensuring that the guilty do not
go unpunished, extend to ensuring
fairness in the proceedings and also
to ensure that all relevant facts and
circumstances are brought to notice
of court for a just determination of
the truth so that due justice prevails.
6
(vii) Ss. 211, 215 to 217, - Defect in charge when vitiates trial
222, 464 and 465 Principles reiterated. Need for
accused to show prejudice caused
by error in charge/non framing of
charge and failure of justice
occasioned therapy.
(viii) S. 202 - Twin objects of S. 202 restated.
Scrutiny of complaint by Magistrate.
Locus standi - Accused has no
locus standi at this stage.
(ix) S. 154 - FIR - Once registration of FIR is proved
by police and same is accepted on
record by court and prosecution
establishes its case beyond
reasonable doubt by other
admissible, cogent and relevant
evidence, it will be impermissible
for court to ignore evidentiary value
of FIR. FIR by itself is not a
substantive piece of evidence but it
certainly is a relevant circumstance
of evidence produced by
investigating Agency.
(x) S. 313 - Examination of accused - It is
option of the accused whether to
remain silent or to provide answer
to questions asked by court once
accused opts to give answers and
puts forward his own defence or
events as they occurred, then
accused is bound by such statement
and Court is at liberty to examine it
in light of evidence produced on
record.
(xi) S. 439 (2) - Cancellation of bail - Grant or
rejection of bail stands on one
footing but cancellation of bail is a
7
harsher step and stands on different
footing. Unless there is specific
allegation of misuse of bail or
tempering of prosecution evidence
bail should not normally be
cancelled. Re-appreciation of
evidence for purpose of cancellation
of bail should normally be avoided.
(xii) Ss. 167 (2) and 309 - Remand - Directing remand of
accused is fundamentally a judicial
function. Magistrate does not act in
executive capacity himself whether
materials placed before him justify
such remand. Magistrate has to
apply his mind and not to pass order
of remand in a mechanical manner.
3. Criminal Trial 52
(i) Appreciation of Evidence - Contradictions, inconsistencies,
exaggerations or embellishments -
Discrepancies or improvements in
statements of witnesses - Principles
reiterated.
4. Indian Penal Code, 1860 54
(i) S.406 - Constitution of India Art. 226 -
Criminal breach of trust - FIR -
Element of dishonest intention is an
essential element to constitute
offence of criminal breach of trust.
FIR has been lodged only to
recover part of question money due
from petitioner. It is a case of
breach of trust simpliciter. Matter
is purely civil in nature. FIR do not
disclose commission of any
cognizable offence - FIR quashed.
(ii) S.34 - Common intention - Applicability -
It requires pre-arrranged plan and
8
pre suppose prior concert. If
common intention is proved but no
overt act is attributed to individual
accused, S. 34 will be attracted as
essentially it involves Vicareous
liability. But, if participation of
accused in crime is proved and
common intention is absent S. 34
cannot be invoked.
(iii) S.302/34 or S. 304 - Murder or lesser offence -
pt. I r/w S. 34 Determination of - Nature and
manner of use (blunt side) of
weapons to inflict injuries which
caused death. Injuries inflicted
however on vital part of body i.e.
head, inference from.
(iv) S. 120-B r/w S. 302 - Criminal Conspiracy - Proof of
Ingredients - Meeting of minds -
Need to establish - Principles
reiterated. Proof or otherwise of
conspiracy is usually a matter of
inference. But what is conspicuous
by its absence is essential meeting
of minds between accused B, M
and G to commit murder of
deceased.
5. Evidence Act, 1860 59
(i) S. 80 - Municipal record of right has got
presumption of validity. But
presumption of correctness can
apply only to genuine, not forged
or fraudulent entries. Distinction
may be fine but it is real. Fraud and
forgery rob a document of all its
legal effect and cannot found a claim
to possessory title. However,
unless it is shown that entry is
9
fraudulent court cannot make any
enquiry with regard to that.
(ii) S. 3 - Appreciation of Evidence -
Witnesses - Menace of witnesses
turning hostile erodes criminal
judicial system. Court should not
be mute spectator but shall make
every effort to bring home truth.
(iii) S. 3 - Eye witness - Relationship of eye
witness with deceased is no ground
to disbelieve him unless his
testimony carries element of
unfairness and undue intention of
false implication.
(iv) S. 3 - Appreciation of evidence -
Statement of witness not to be read
in part or in isolation. It has to be
read alongwith statements of other
witnesses to arrive at reasonable
conclusion.
(v) S. 8 - Motive - Assumes significance in
case based on circumstantial
evidence for reason that absence
of motive would put court on its
guard and cause it to scrutinize each
piece of evidence very closely in
order to ensure that suspicion,
emotion or conjecture do not take
place of proof.
(vi) S. 134 - Number of witnesses - Where there
were several persons stated to have
witnessed incident and prosecution
examined those witnesses who were
able to depose more accurately
leaving no room for doubt about
involvement of accused in
occurrence, it was wholly irrelevant
10
and unnecessary to multiply number
of witnesses to repeat same
version.
6. Specific Relief Act, 1963 64
(i) S. 6 - Possession of Immovable property
- In a suit under S. 6 only question
that has to be determined by Court
is whether plaintiff was in
possession of disputed property
and he had been illegally
dispossessed there from on any
date within six months prior to filling
of suit. An unsuccessful litigant in a
suit u/s 6 would have option of
filing a fresh suit for recovery of
possession on the basis of title.
(ii) S. 34 - Challenge to Sale deed - Plaintiff
are not in possession of suit
property. When title did not pass
to plaintiff, they cannot be allowed
to challenge legality of cancellation
deed. Even if cancellation itself is
illegal then also title will not pass on
them-Appeal dismissed.
7. Juvenile Justice Act, 1986 67
(i) (a) Preamble and statement of objects
and Reasons - Purpose of
enactment of the Act, restated.
(b) Rule 12 of Juvenile Justice (Care
and Protection of Children) Rules,
2007 - Juvenility - Post Conviction
claim - Material to prima facie
establish necessity of inquiry into
juvenility claim. Onus to produce,
and evidentiary value of various
types of documents. Manner of
appreciation of evidence and
standard of proof.
PART III
Latest Acts & Amendments
1. Bihar Land Disputes Resolution (Amendment) Act, 2012
[Bihar Act 15, 2012] 70
2. Bihar Maintenance & Welfare of Parents & Senior Citizens Rules, 2012
[Notification No. 1/Sa.su.-vividh-22/09.S.W-1935, dated 7th
September, 2012] 72
PART IV
Latest Circulars & Notifications
1. lafonk ds vkèkkj ij fu;kstu ,oa fu;kstu dh çfØ;k LFkfxr j[ks tkus ds lacaèk esaA(ladYi lañ 3/,eñµ078/2005 lkñ çñµ17415/20 fnlEcj] 2012) 94
2. ekuuh; loksZPp U;k;ky; }kjk VªkaliQMZ dsl (flfofy) uañ&22/2001 (c`t eksgu ykycuke Hkkjr la?k ,oa vU;) esa fnukad&19.04.2012 dks ikfjr U;k;kns'k ds vkyksd esaiQkLV VªSd dksVZ dks LFkk;h :i ls lapkfyr fd, tkus ,oa xSj ;kstuk en esa vLFkk;h :ils l`ftr vij ftyk ,oa l=k U;k;kèkh'k ds inksa esa ls 183 iQkLV VªSd dksVZ ds inksa rFkkmPp U;kf;d lsok laoxZ dk 10 çfr'kr inksa ;Fkk 29 inksa vFkkZr~ dqy 212 inksa dk lkeatuds vkèkkj ij LFkk;h fd, tkus ds iQyLo#i buds fy, vko';d vjktif=kr oxZ&3 ,oaoxZ&4 ds fy, vko';d dqy 1272 inkksa dks lkeatu ds vkèkkj ij LFkk;h fd, tkus dslacaèk esa LohÑfrA (i=k la[;k&,ñ@;ksñ ,iQñ Vhñ lhñ vjktñ in dk LFkk;hdj.k&44/
2012/tsñ@4380/02.11.012) 94
PART V
Activities of the Academy 96
nnn
11
12
PART I Articles
Importance of a fair and active Judge in dispensation of
justice in civil cases.
J.M. Sharma
Director, B.J.A.
John Rawals in his "A Theory of Justice" develops the theme of "Justice as Fairness". To be
a fair and active judge we need not travel outside the Civil Procedure Code. Fairness &
Activeness should have centrality in our judicial act. The Civil Procedure Code 1908 and the Civil
Court Rules of High Court of Judicature at Patna would suffice to ensure that we should be
substantially fair to the litigants who appear before us. The Presiding Officers of the Court have to
play an active role to impart justice. Not a literal but an imaginative and active approach is called
for by knowing the reason behind the procedural rules and requirements. Let us take a few
instance to ensure fairness.
Order VI, VII, VIII, C.P.C. direct to ensure fairness in pleadings. The basic character of the
civil litigative proceeding is its adversary process. Hence the importance of fairness.
Before taking the plaint to file atleast territorial and pecuniary jurisdiction, court fee and
limitation have to be checked. If, it appears to be barred by law, it is better to hear the counsel at
the first instance itself.
Ø Before the trial commences the judge should enforce the provisions of C.P.C. for
taking precise pleas, specific denials, Production of documents in time, furnishing the
list of witnesses within the time allowed and affording facility for inspection of
documents.
Ø Order VI Rule 17 C.P.C. must be liberally construed so long as no new case is made
out, cause of action or nature of the suit is not being changed. The provision of
amendments of pleadings ensure fairness so that a party can not say later on that he
was not given an opportunity to amend his/her pleading which was earlier not drafted
correctly due to various reasons or the part of the pleading was not earlier known to
him/her.
Ø Service of notice to the other party have to be observed by the judge. Audialterum
partem is a wholesome rule in the context of adversarial procedure. For adjournment
of a case, the counsel for the other party known regarding seeking of adjournment
because any adjournment might involve inconvenience to a busy witness. The unfair
13
tactics has to be neutralized by declining such an adjournment.
Ø During hearing each piece of evidence offered by the party makes an impression in
the judge's mind but the judge has to guard against open expression.
Ø The judge has to be fair to the witness before him. Sections 146 to 152 of Indian
Evidence Act, afford guidance to the court when any witness is sought to be annoyed,
insulted or his character is being injured.
Ø Though the C.P.C. does not provide for argument but it is essential to hear brief
arguments. The piece meal impressions gathered in the course of the hearing have to
be corrected and consolidated during arguments. The judge may indicate the trend of
his thinking through questions seeking clarifications, so that the counsel may have an
opportunity to argue on all the points to the contrary, if there is indication that at
present the judge is having adverse opinion against him. In fairness, the counsel should
have this opportunity of salvaging his cause at that stage. At this stage the Presiding
Officer of the Court has to avoid getting into an argument with the counsel.
Ø To secure Fairness every judge has to understand C.P.C. and Civil Court Rules
carefully and cautiously.
Ø The decision of every case requires first a shifting of evidence bearing upon the
controversy. In every case atleast there are two sets of facts and the judge shifts the
evidence to find out where the truth between two conflicting versions lies and then to
find as to which view is in accordance with law.
Ø The provisions of C.P.C. direct us also to be an active judge. The following contexts
empower a judge to play his own role.
Order VI Rule 16 : Striking out pleadings-the court can strike out such pleadings as
provided there under.
Order VII Rule 11 : Under this provision the court can reject a plaint as provided.
Order X Rules 1 & 2 : The Judge can get vague pleadings clarified.,
Order XI : The Judge should use this provision to cut down trial time.
Order XIII Rule 10 : If a record or paper is otherwise admissible in evidence, the court
may send the paper from its own record or from other records.
Order XIV. : It is the duty of the court to frame issues. Of course, documents
can be looked into, parties may be examined, if need be, and
lawyers on either side may be heard. Except in difficult cases,
issues should be framed on-the day on which the written statement
is filed or on the next day (Rule 90 of Civil Court Rules). Lengthy
adjournments should not be granted for interlocutory matters such
14
as calling for records, service of interrogatories, issue of
commissions filing of list of witnesses and payment of costs for
issuing summonses.
(G.L. 10/49, G.L. 11/62, G.L. 3/63).
Order XVI, Rule 7 : The Court has power to direct any person present in the court to
give evidence or to produce any documents then and there in his
possession or power.
Order XVI, Rule 14 : The Court may on its own accord summon as witnesses strangers
to suit.
Order XVII, Rule 3 : The Court may proceed to decide the case even if the party fails
to adduce evidence.
Order XVIII, Rule 1, : If both sides shirk the right to begin at the trial, the judge has to
Section 102, Indian ascertain froim the pleadings and issues as to who would fail if, no
Evidence Act: evidence at all were to be given on either side then rule that the
burden of proof lies on such party as would fail.
Order XVIII, Rule 10, 11, : Also empower a judge to play active role.
12, 17 & 18
Section 165, Indian : The Judge has got power to put questions to obtain proper proof
Evidence Act, 1872 of relevant facts or for ordering production of documents.
Order XXXIII, Rule 9(A), : The Court has to play an active role as provided there under.
17 & 18
Section 3, Limitation Act, : The Court may, suo motto take up questions of limitation even in
1963 the absence of any plea or issues on such a point.
Under the procedural law as its stands, the role of the judge is mostly responsive to what the
party does. The judge has to actively responde to contexts where the law expects him to so
respond, so that others may not hijack-the trial to achieve their ends. For imparting timely &
qualitative justice, these provisions and few others where the code vests the judge to take initiative,
have to be used carefully & cautiously to regain faith of litigants. The judge must act as a fair and an
active judge. Delay defeat justice. A judge has to keep balance for ensuring fairness by using the
provisions of C.P.C.intelligently as an active judge. The function of a judge is to conduct the
proceeding in a fair, orderly and dignified manner. It is the function of the judge to give the
maximum protection to the right and privileges of the parties so that it may appear that justice has
not only been done but appears to have been done.
The truth should be the guiding star in the entire judicial process. Truth alone has to be the
foundation of justice. The entire judicial system has been created only to discern and find out the
15
real truth. Judges at all levels have to seriously engage themselves in the journey of discovering the
truth. That is their mandate, obligation and bounden duty. Justice system will acquire credibility
only when people will be convinced that justice is based on the foundation of the truth.
In Mohanlal Shamji Soni vs. Union of India (1991 Supp (1) SCC 271: 1991 SCC
(Cri) 595) the Apex Court observed that in such a situation a questuion that arises for consideration
is whether the Presiding Officer of a court should simply sit as a mere umpire at a contest between
two parties and declare at the end of the combat who has won and who has lost or is there not any
legal duty of his own, independent of the parties, to take an active role in the proceedings in finding
the truth and administering justice? It is a well-accepted and settled principle that a court must
discharge its statutory function-whether discretionary or obligatory-according to law in dispensing
justice because it is the duty of a court not only to do justice but also to ensure that justice is being
done.
What people expect is that the court should discharge its obligation to find out where in fact
the truth lies. Right from the inception of the judicial system it has been accepted that discovery,
vindication and establishment of truth are the main purposes underlying the existence of the courts
of justice.
"Satyameva Jayate" (literally "truth stands invincible") is a mantra from the ancient scripture
Mundaka Upanishad. Upon Independence of India, it was adopted as the national motto of India.
It is inscribed in Devnagri script at the base of the national emblem. The meaning of the full mantra
is as follows:
"Truth alone triumphs; not falsehood. Through truth the divine path is spread out by which the
sages whose desires have been completely fulfilled, reach where that supreme treasure of truth
resides."
rrr
16
Expanding Dimensions of Human Rights
and
District Legal Services Authority
By, Dinesh Kumar Sharma,
District & Sessions Judge,
Vaishali at Hajipur (Bihar)
A. Introduction:
District Legal Services Authority ('DLSA' for Short) is a body, constituted U/s 9 of the Legal
Services Authority Act, 1987, to exercise the powers and perform the functions assigned to it
under the said Act. Section 10 of the said Act lays down to the effect that it shall be duty of this
body namely, DLSA, to perform such of the functions of the State Authority in the District as may
be delegated to it from time to time by the State Authority. Section 4(n) of the said Act empowers
the Central Authority (NASLA) to co-ordinate and monitor the functioning of State Authorities.
DLSAs, etc. and give general directions for the proper implementation of the legal services
programmes. This small write up ventures to underline the importance and unique relevance of the
role of DLSA in imparting Human Rights awareness among the masses at least in some pin-
pointed areas.
B. Human Rights-The Concept
Human rights, from teleological point of view, may be conceived as those basic, inalienable,
inviolable and unavoidably minimum set of rights which emanate from, and are integrally associated
with, the sole fact that the entity in which these rights vest, is a 'human person' and 'human being'.
The 'human person' has been accorded supreme worth and dignity even in scriptures and spiritual
literature. Goswami Tulsidas, in his timeless work 'Ramcharitmans', writes: "cM+s Hkkx ekuql ru ikokAlqj nqyZHk ln~xzaFkfUg xkok**AA
[Getting Human Body is a matter of humense Fortune; Even the gods Aspire for it—So
proclaim the Scriptures]. In course of growth of civilisations, when the concept of 'law' acquired
concrete shape, human rights, quite naturally, came to acquire the central significance in the
thoughts of social thinkers and jurists. Historical events like wars, socio-political injustices or
actions of power centres-good or bad, were criticised or appreciated, ultimately on the touchstone
of whether they stiffled and undermined human rights or augmented and uplifted it.
C. Human Rights - The Institution Treatment at International Level
After the failure of the League of Nations and as a sequel to the world having witnessed the
scourge of two world wars, in the year 1945, the United Nations Organisation came into being.
17
The Preamble of the UN Charter, inter alia, resolves:
"We the Peoples of the United Nations Determined to reaffirm faith......in the dignity
and worth of the human person.......Have resolved to Combine our Efforts to Accomplish
these Aims."
As if the aforesaid basis declaration in the Preamble of UNO were not enough, in Articles 1
of the Charter it was, inter alia, laid down:
"The purposes of the United Nations are.......to achieve international co-operation in
promoting and encouraging respect for human rights......for all without distinction as to race,
sex, language, or religion........".
The emphasis of the World Body (UNO) on human rights did not end even there. The
General Assembly and the Economic and Social Council of the UNO, were called upon to make
recommendations for the advancement of human rights so that the pleadge of the member Nations
in this regard, to take joint and separate action in co-operation with the UNO for upholding human
rights, could be given real shape. Acting accordingly, the General Assembly of UNO, upon
recommendation of its special Commission, adopted on December 10, 1948, a Universal
Declaration of Human Rights, setting forth in thirty articles basic rights and fundamental freedoms
to which all men and women everywhere in the world are entitled. To reiterate, the only
qualification for being entitled to enjoy "Human Rights" is the fact that entity is a human being and
has human person. The details of these rights have to be essentially universal and must transcend
the national, linguistic, political and cultural boundaries and barriers.
D. Human Rights-The Indian Scene
The Constitution of India in its several Articles in the Fundamental Rights chapter, apart from
the Preamble in which, inter alia, resolution has been made for securing dignity of the individual,
delineates the guarantee of human rights. Articles 21, as is well-known, is the repository of the
guarantee for non-deprivation of life or personal liberty except according to procedures established
by Law. The concept of 'life', which means 'human life', enshrined in the Article, haqs received
tremendously wide as well as deep interpretations under Judicial pronouncements of Hon'ble the
Apex Court and the High Courts. Any detailed study of the amplitude and sweep of those
interpretations, honesty speaking, would call for an independent study at length manifestly
transcending the shortt scope of this write-up. All that can be most humbly noted at this place is
that those interpretations have been admirably progressive, humane, generous, enlightening and
inexhaustively erifying. Articles 20, by prohibiting ex post facto substantive criminal legislation,
double jeopardy, and self-incrimination and Article 22, by putting limitations on arrest powers and
preventive detentions, also go to manifest inter alia. Indian commitment to the international
convention on human rights. In a recent decision, vide (2012)9 SCC 791, Raghuvansh Dewan
Chand Bhasin vs. State of Maharashtra, Hon'ble Supreme Court have deprecated arrest of a
lawyer on Independence Day in circumstances indicating overtones of intentional humiliation and
18
have been pleased to lay down valuable guidelines for Magistrates issuing warrants and the Police
agency executing them. It is respectfully submitted that the said decision is immensely educative in
the field of relevant human rights.
The protection of Human Rights Act, 1993, vide Sec. 2 (d) thereof, defines human rights in a
way so as to include the provisions of Indian Constitution guaranteeing the rights relating to life,
liberty, equality and dignity of the individual or embodied in the International Covenants and
enforceable by Courts in India. Article 253 of the Constitution empowers the Parliament to make
any law for implementing any treaty, agreement or convention made at any international conference,
association or other body. Section 2 (f) of the Protection of Human Rights Act, 1993, defines
International Covenants as the International Covenants on Civil and Political Rights and International
Covenants on Economics, Social and Cultural Rights, adopted by the General Assembly of United
Nations on the 16th December, 1966. These two covenants seem to have been legislatively
selected by Parliament for enforcement through municipal law under the powers conferred under
Article 253 of the Constitution above-referred. It is well known that after the adoption of
Universal declaration of Human Rights, it was felt that cause of human rights would be better
served and promoted by an obligation of binding force and the General Assembly made provisions
for the aforesaid two covenants expecting that the provisions of these covenants would be made
enforceable under municipal laws of the member States. These covenants, apart from the
traditional ideas of human rights, inter alia, look to raising standards of living, protecting labour,
promoting education and in other ways advancing general welfare of an individual.
F. Expending Dimensions of Human Rights-A Glimpse
There is no gainsaying the proposition that an exhaustive enumeration of human rights is
simply impossible. It is never a closed set. Certain heads may, at most, be noted, to have a glimpse
of its expanding dimensions:—
(a) the fundamental rights of life and liberty enshrined under Article 21 of the Constitution
with all the ramifications occasioned by authoritative Judicial interpretations like those
relating to education, health, speedy justice, legal aid, mental health etc.
(b) the fundamental rights, guaranteeing prohibition of double jeopardy, limitations on
arrests, non-prosecution under ex-post facto criminal law etc. under Articles 20, 21,
22, Constitution of India, and also protected under various provisions of ordinary
criminal law like Cr. P.C.,
(d) rights relating to custodial interrogations, incarceration etc.,
(e) human rights of juvenile delinquents.,
(f) human rights of victims of crimes.,
(g) right to medical aid, where necessary, of an accused.,
(h) right to legal awareness and legal literacy.,
19
(i) rights coming into being and operation because of International law and International
treaties and conventions, like protection against child labor etc.,
(j) rights during natural calamities, disasters, riots, mob violence etc.,
(k) rights relating to victimisation by press, media trial, prejudicial reportings etc.,
(l) right of fair, honest and dignified treatment in all wals of human relationships personal,
social, political, administrative, judicial, etc.,
(m) rights of personality development-socially, educationally, politically, economically,
and spiritually.,
(n) rights of unborn child etc.,
(o) political rallies and questions of obstructions to normal human rights of non-participants
in such rallies, etc.,
(p) human rights in the context of the practice of ragging and relevant laws directed at
prevention of ragging, etc.
F. Spreading Human Rights Literacy-Involving DLSA In The Task
Section 12(h) of the Protection of Human Rights Act, 1993, empowers the National Human
Rights Commission and section 29 thereof, read with section 12, empowers the State Human
Rights Commission, "To spread human rights literacy among various sections of society and
promote awareness of the safeguards available for the protection of these rights through publications,
the media, seminars and other available means", [underlining mine for emphasis]. We know that
DLSA is chaired by District Judge-head of the District Judiciary, other important members being
District Magistrate (Vice Chairman), Superintendent of Police, Public Prosecutor, President of
District Bar Association, among others. It is easy to visualise that a significant chunk of human
rights is relatable to administration of justice, specially criminal justice. A District Judge, being
Chairperson of DLSA can be safely accorded the presumption that he can effectively select
Judicial Officers for spreading human rights literacy and/or meaningfully organize interactions with
police and executive machinery in not only human right literacy programmes for the masses but
also in sensitising the stakeholders to human rights values so as to minimise its infractions. The
stakeholders include the Judicial Officers, the Police Officers, the Executive Officers, the Public
Prosecutors, the Defense Lawyers, apart from the general public. The writer of this write-up
would like to humbly say that as Chairperson of DLSA at Gopalganj, Bihar, while observing
Human Rights Day on 10th December, 2011, he had organized a lively seminar on the topic
"Human Rights and Administration of Criminal Justice at District Level" in which all the stakeholders
above referred including DM and SP, apart from Lawyers, College Teachers, Journalists, and
Social Activists had meaningfully participated and a threadbare discussion of the issues together
with possible remedies had taken place. It is also a well known fact that in compliance with the
calendar enforced at the directions of NALSA and State Authority, DLSA is humbly engaging
20
itself throughout the year, as per calendar, in spreading legal awareness in various areas. National
and/or State Human Rights Commission may, perhaps, co-ordinate human rights literacy
programmes with NALSA or State Authority or vice versa, directing the involvement of DLSA in
such manner and in such areas as may be thought appropriate taking, perhaps, into account the
efficacy of DLSA in the areas concerned. Even in open-ended legal awareness programmes
conducted by DLSA, as per directions of NALSA or State Authority, the DLSA can imaginatively
chalk out the topics with emphasis on human rights. College and school students can be very
suitable audience for inculcating in them the human rights values. The writer of this write-up, as
Chairperson of DLSA, Vaishali, Hajipur, has initiated a series of Legal Awareness Programmes for
College Students for which several topics pertaining to human rights areas have been selected and
awareness in the field is being imparted phasewise. Suitable disciplines like those of political
science, law, philosophy, psychology, sociology, literature etc may also be involved by DLSA in
imparting human rights awareness in students-the basic objective being inculcation of attitudinal
changes. A panel of lawyers might be prepared, with suitable incentives, by DLSA for assisting in
the spread of human rights awareness among all stakeholders. Expert nominees deputed by
National/State Human Rights Commission may come and train resource persons of DLSA so as
to enable them to render their services skillfully in imparting human rights awareness. The Human
Rights Organisation at District Level, and accredited NGOs in the field, might also be suitably
involved by DLSA in the task. Let the instrumentality and institution of DLSA be employed for
spreading human rights movement at grass-root level of society with missionary zeal.
rrr
21
Judgment Writing (Criminal), the Act of Expression
OM Prakash
District & Sessions Judge Siwan
Introduction—Judgment writing is the most important task of a judicial officer, Several
Judicial Officers may take similar decision in a case but when called upon to express it in form of
judgment, their way to place the facts and assign reasons of a particular conclusion will differ.
Taking decision is a work of analytical study but writing good judgment is an art. A good judgment
is combined effect of literature, knowledge and reasonings. It is arrangement of various facts with
colours of convincing reasonings pointing towards the conclusion drawn. Art has no rigid rules nor
art of expression of different person may be the same. However there are some golden rules of
logical expression. The purpose of this article is to highlight various ways of logical expression in
the form of judgment.
Judgment—Hon'ble Supreme Court, in ruling reported in AIR 1950 S.C. 188 Bharat
Bank, Ltd., Delhi vs. Employees of the Bharat Bank, Ltd., Delhi, observed about requisites
of judicial decision as follows—
"A true judicial decision presupposes an existing dispute between two or more parties,
and then lavolves four requisites:
(1) The presentation (not necessarily orally) of their case by the parties to the dispute.
(2) If the dispute between them is a question of fact the ascertainment of the last by means
of evidence adduced by the parties to the dispute and often with the assistance of
argument by or on behalf of the parties on the evidence;
(3) if the dispute between them is a question of law, the submission of legal argument by
the parties, and
(4) a decision which disposes of the whole matter by a finding upon the facts in dispute
and application of the law of the land to the fest so found, including where required a
ruling upon any disputed question of law."
Requirements of a judgment may also be understood by following observations of Hon'ble
Supreme Court in the case of Omar Salay Mohamed Sait vs. CIT 37 ITR 151 (SC) with
reference to the orders passed by the Income-Tax Appellate Tribunal:—
"The Income-Tax Appellate Tribunal is a fact finding Tribunal and if it arrives at its own
conclusions after due consideration of the evidence before it, the court will not interfere. It is
necessary, however, that every fact for and against the assessee must have been considered
with due care and the Tribunal must have given its finding in a manner which would clearly
indicate what were the questions which arose for determination, what was the evidence pro
and contra in regard to each one of them and what were the findings reached on the evidence
22
on record before it. The conclusions reached by the Tribunal should not be coloured by any
irrelevant considerations or matters of prejudice and if there are any circumstances which
require to be explained by the assessee, the assessee should be given an opportunity of doing
so. On no account whatever should the Tribunal base its findings on suspicions, conjunctures,
or surmises; nor should it act on no evidence at all or on improper rejection of material and
relevant evidence or partly on evidence and partly on suspicions, conjunctures or surmises."
Statutory Requirement—Chapter XXVII of Cr.P.C. Deals with the essentials of a
judgment vis a vis its delivery. The statutory requirements of a judgment are—
1. It shall be written in the language of court [section 354 (1) (a) Cr. P.C.]
2. It shall contain the point or points for determination, the decision thereon and the
reasons for the decision [section 354 (1)(b) Cr.P.C.]
3. In case of conviction, it shall specify the offence of which and the section of IPC or
other law under which the accused is convicted as well as the punishment to which he
is sentenced. [section 354 (1) (C) Cr. P.C.]
4. In case of acquittal, it shall state the offence of which the accused is acquitted and
direct that he be set at liberty. [section 354 (1) (d) Cr.P.C.]
5. In case of death sentence, special reasons for such sentence should be recorded and
the sentence shall direct that he be hanged by the neck till he is dead. [section 354 (5)
Cr.P.C.]
Language of Court —Rule 11 of Criminal Court Rules (volume I) vis a vis Rule 6 of Civil
Court Rules provide that the Govt. of Bihar has declared that 'Hindi' to be written in 'Deonagri'
script is court language in the State of Bihar. Letter no. 17805-21 dated 16.8.74 of Hon'ble Court
provide that as far as possible, Criminal Courts should record judgment in Hindi. Similar
Instruction was issued vide court's letter no. 8266-300 dated 13.7.89.
The Art of Expression—A complete judgment consists of five parts namely (i) cause title
(ii) Facts and points for determination (iii) Findings (iv) conclusion and (v) Sentence.
Cause title is like address book of a case. Normally the place of delivering judgment is
mentioned at the top and just below it, name of court with name of PO is mentioned. Then the
date, case no., name of parties, charges and name of the lawyers of both parties is mentioned. In
cases of sessions trial, name of committing court with date of commitment is also mentioned in
cause title. Since decree is not prepared in criminal case, name of all accused with their age is
mentioned in cause title. The purpose of mentioning age of accused is a caution so that a minor/
juvenile may not be tried.
Facts & Points for determination—A judgment is mostly started by mentioning the
offence and the sections for which the accused or accused persons have been tried and that they
have pleaded not guilty or their plea of guilt has not been accepted and hence trial. Then
registration of FIR/complaint with information therein, facts discovered during investigation or
inquiry, cognizance and summoning order may be mentioned. Then the plea of defence and points
23
for determination is mentioned.
The other way of starting a judgment is to mention undisputed facts followed by the facts
leading to investigation/inquiry, brief facts leading to summoning, charge, defence plea and
statement of accused u/s 313 Cr.P.C.
Mention about tranfer of case to different courts is mostly unnecessary unless the court
delivering judgment is specifically constituted for the said trial.
Points for determination is one of the essentials of judgment and it should be carefully
determined. The initial points should be about factum of occurrence and a separate point about
complicity of accused/accused persons in occurrence (if proved) should be framed. While
determining points for determination, the ingredients of offence must always be kept in mind and if
the defence has taken some specific plea (.e.g. alibi, accident etc.) a separate point in this respect
may also be framed. In counter cases of assault, a point about aggressor ship may be framed.
Starting Judgment—There is no specific rule of starting discussions of judgment. Different
persons start the judgment (finding) in different ways. Some person starts judgment with weak
points and gradually the evidences of conclusive nature are mentioned to derive conclusion and
some person may adopt the contrast manner i.e. mention determinative evidences first and
corroborate it by other evidences and circumstances to rule out chances of innocence or guilt.
Some persons start judgment with medical evidences [2007 (Supp)PLJR 555]. However one of
the golden rule is that a judgment should not be started with such evidences which are not
substantive in nature. Thus a judgment should not be started with confession of co accused,
credibility of FIR, TI parade etc. In ruling reported in 2005 SCC (Cri) 481, the observation of
Constitution Bench decision reported in AIR 1964 SC 1184 has been quoted that "the court
cannot start with confession of co-accused person; it must begin with other evidence adduced by
the prosecution and after it has formed its opinion with regard to the quality and effect of the said
evidences, then it is permissible to turn to the confession in order to receive assurance to the
conclusion which the judicial mind is about to reach on the said other evidences". The confession
of a co-accused person cannot be treated as substantive evidence and can be pressed into service
only when the court is inclined to accept other evidence and feel necessity of seeking an assurance
in support of its conclusion deducible from the said evidence.
A judgment should not be mere collection of statement of witnesses. The reasons for
believing or not believing on a particular relevant statement by reference of substantial corroboration
and critical examination must reflect from the discussions showing application of judicial mind.
There is no straight jacet formula of such discussions (AIR 1987 SC 1328). However the nodes of
discussions normally adopted by different trial judges may be broadly described as follows:
Arrange different groups of witnesses—A trial court should firstly ascertain as to which
of the witnesses are formal in nature, which of them are examined to prove corroborative facts
(expert witnesses etc.), who are witnesses of supporting facts and which of them have been
examined on the point of factum of occurrence. The witnesses examined about factum of
occurrence should be further examined as to presence of which of them is natural at the scene of
24
occurrence, which of them are chance witnesses and who are independent witnesses. The
witnesses who are not believable at all should also be examined and referred with reasons of
disbelieving them. While doing so it must be kept in mind that the principle of Falsus in uno, falsus
in omnibus is not applicable to the Indian situations. In ruling reported in 2008 (2) PLJR 64, it has
been observed "The social conditions, the training of life which we get in our society as also on
level of literacy make it utterly impracticable to apply the above principle to witnesses in India. The
capabilities to retain and reproduce the facts of a witness vary from man to man and some pitfalls
here and the there might not be an unusual incidence in the deposition of a witness deposing in our
courts. This is the reason that the courts are required to separate the grains from the chaff so as to
isolating the truth and acting upon them in passing a judgment." The court must be cautious while
dealing with hostile witness also. Hon'ble Apex Court in ruling reported in 2005 SCC (Cri) 61 and
in several other judgments, has observed that "the fact that a witness has resiled from the earlier
statement made in the course of investigation puts the court on guard and cautions the court against
acceptance of such evidence without satisfactory corroboration".
Different modes of discussion about oral evidences may be summarily described as follows:
Witness wise discussion—This is the most common method adopted by trial courts. The
discussion is started with the crucial witness (mostly informant) and relevant statement of facts in
his deposition is quoted. The statement of main witness about factum of chance witnesses and
witnesses about corroborative facts and circumstances, by referring criticism of defence side with
reasonings of its acceptance or rejection. The statement of witnesses is referred one by one, to
ascertain as to which of the statement of main witnesses has been substantially corroborated and
on what point there is no satisfactory corroboration and on what points there is contradiction. The
defence evidence (if any) and specific defence plea (if any) is then examined. At last, the proved
facts should be summarized with precise reference of corroboration and the court may draw
conclusion as to which of the charge is proved beyond reasonable doubts. Then complicity of each
accused by reference of incriminating evidences and circumstances is examined. The order of
discussion of the evidences of witnesses may be changed according to the peculiar circumstances
of each case. [See judgments reported in 2007 (Supp) PLJR 521, 539, 551]
Charge wise discussion—This is comparatively convenient and precise form of writing
judgment. When there are several charges of different nature, the evidences are separately
discussed by reference of each such charge and in such discussion, the deposition of witnesses are
not taken as a whole at one time. The evidences of witnesses may be consistent in respect of some
charges and there may be vital contradiction in respect to other charges. Thus separation of grain
from chaff may be more convenient while making discussion charge wise. [See the judgment
reported in 2007 (Supp) PLJR 496]
Split evidence discussion—The evidences of a criminal case may be broadly divided in
four categories. They are (i) Evidences about credibility of witnesses (ii) Pre occurrence events (iii)
main occurrence (iv) post occurrence events. Evidences of pre occurrence event mostly show
probability. Existence of litigation, enmity, motive, knowledge, previous conduct relevant u/s 16 of
evidence Act etc are not offences in itself and they lend assurance to the conclusions about main
25
occurrence. However, absence or failure to prove these facts are mostly not fatal.Genesis of
occurrence is also pre occurrence event but failure to prove it, if alleged, is mostly fatal.
Conspiracy and abatement are pre occurrence events which are independent offences also.
However failure to prove it may have impact in respect of statements made during conspiracy.
Evidences of post occurrence events are mostly corroborative in nature. They are res gastae, TIP,
dying declarations, confessions, FIR, expert evidence etc. The evidences about main occurrence
are most crucial in a criminal trial.
Discussion of evidences by identifying and splitting evidences in above said four categories
makes the judgment more objective, analystical and result oriented. In such a situation, no
evidence or circumstance may remain unconsidered and the Court may also be confident in
forming opinion as to contradiction or non-provong of which fact is fatal and to what extent. The
rule of caution that 'falsus in uno, falsus in omnibus' is not applicable in Indian Courts, may be
clearly appreciated and applied while writing judgment in this manner. The court may also be able
to consider as to whether any part of statement of a witness, declared hostile, is worth reliable or
not.
Caption wise or Heading wise Discussion—In cases where the ingredients of offence or
offences relate to several acts done at several places or evidences are collected from different
places or evidences are collected on different dates or time or in cases based on circumstantial
evidences or where there are joinder of several judgment. Writing judgment in such manner may
be seen in various recent judgments of Hon'ble Apex Court. Each crucial fact sought to be proved
is discussed under different suitable heading by reference of respective evidences and at last, the
proved facts and circumstances are summarized. The plea of defence may also be dealt under
separate heading, if necessary.
Composite Mode of Discussion—As stated above, there is no hard and fast rule or mode
of writing judgment. A judge is at liberty to express the reasonings and discussions in the manner
convenient to him. The reasonings must be clearly expressed and repetitions should be avoidsed.
Thus, while writing judgment adopting one of the mode, a judge may adopt another mode also to
clearly express the discussions and findings on any point. Thus while writing judgment charge wise,
the concerning evidences may be discussed witness wise or heading wise. It is oftenly said that a
judgment should be precise but the word precise is too vague. However, it may mean that there
should not be repetitions of discussdion and findings. But in order to make the judgment precise or
short, any evidence or circumstance, howsoever weak it may be, should, not be left. However
weaker evidences and circumstances are normally pressed into service for lending assurance to
the findings given in view of other evidences and in cases of circumstantial evidences, they may be
used to neutralize any other hypothesis.
Normative mode of writing Judgment—I heard about this form of writing in a seminar of
National Judicial Academy. Normally a trial court or a court of first appeal/revision discusses the
factual evidences first and then on the basis of proved facts, it is ascertained as to whether the
ingredients of offence is proved. Normative mode is just opposite to it. It consists three parts (i)
The law, (ii) The Norms and (iii) discussions. Norms means the object for which the law has been
26
made. The purpose sought to be achieved by such law; the judicial precedent. Thus in a criminal
trial the court while writing judge may firstly ascertain the ingredients of the offence (the law). Then
the 'Norm' i.e. purpose for which the said act or acts have been made punishable and judicial
precedent should be briefly observed and then factual evidences should be discussed as to
whether requirements of law as per norms is proved. The norm or purpose may have different
sheds in criminal trials. The penal liability may be deterrent or reformative. It may be strict or
vicariouys liability. The offence may be personal, social or socio-economic. It may have some
presumptions under law. Identifying norms may be useful in determination of degree of proof as
well as burden of proof. For example, where marriage is ingredient of an offence (e.g. Section
494,m 497 IPC), it requires strict proof. But in cases u/s 498A, 304B IPC or 125 Cr.P.C., the
degree of proving marriage by giving evidence about validity of marriage is not be so strict.
Discussions, in general—In the case of Union of India vs. M.L. Kapoor AIR 1974 SC
87, their Lordships of Supreme Court observed as under—
"If the statute requires recording of reasons, then it is the statutory requirement and,
therefore, there is no scope for further inquiry. But even when the statute does not impose
such an obligation it is necessary for the judicial authorities to record reason as it is only
visible safeguard against possible injustice and arbitrariness and affords protection to the
person adversely affected. Reasons are the lins between the material on which certain
conclusions are based and the actual conclusions. They disclose how the mind is applied to
the subject-matter for a decision, whether it is purely administrative or quasi judicial. They
should reveal rational nexus between the facts considered and the conclusion reached. Only
in this way can opinions or decisions recorded be shown to be manifestly just and reasonable."
Discussion is the soul of a judgment and the art of applying reasonings leading to
conclusion must reflect from it. It is the statement of a judge about the facts of the case and it
must show critical perusal of deposition of witnesses in the light of argument. In jurisprudence,
only three arguments can occur; one about facts, the other two about the law:
1. The litigants may contest factual allegations.
2. Or they may claim that the other side has cited the wrong law.
3. Or they may concede that the other side has cited the right law, but misinterpreted it.
In ruling reported in AIR 1995 S.C. 686 Muhtiar Singh vs. State of Punjab, Hon'ble
Supreme Court made following comments about a judgment:
"The trial court apparently failed in the discharge of its essential duties. There is no
mention in the judgment as to what various witnesses deposed at the trial, except for the
evidence of the medical witness. The judgment does not disclose as to what was argued
before it on behalf of the prosecution and the defence. The judgment is so infirm that we are
unable to appreciate as to how the findings were arrived at. The judgment of the trial court is
truly speaking not a judgment in the eye of law. The trial court appears to have been blissfully
ignorant of the requirements of Section 354(i)(b) Cr. P.C. Since, the first appeal lay to this
Court, the trial Court should have reproduced and discussed at least the essential parts of the
27
evidence of the witnesses besides recording the submissions made at the bar to enable the
appellate court to know the basis on which the 'decision' is based. A 'decision' does not
merely mean the "conclusion" it embraces/within its fold the reasons which form the basis for
arriving at the "conclusions". The judgment of the trial court contains only the "conclusions"
and nothing more. The judgment of the trial court cannot, therefore, be sustained. The case
needs to be remanded to the trial court for its fresh disposal by writing a fresh judgment in
accordance with law."
While writing judgment, it must be kept in mind that the judgment is subject to appeal and
revision and during argument in such appeal or revision, the trial judge will not get opportunity to
defend his findings by adding grounds. Treat every judgment as a show cause as to why the
accused has been convicted or acquitted. A judgment should be concised and self explanatory.
However, in order to make a judgment concise, the relevant evidences, howsoever weak should
not be ignored. It must be kept in mind that judgment is statement of the judge and not references
of statements given by others. The discussion must reflect the opinion and observations of the
judge himself and it should not appear as compilation of opinion and observations of others
(witnesses). There are some golden rules which may be helpful to make a judgment concise.
1. Use small sentences to express yourself.
2. Avoid repetitions unless it is extremely necessary.
3. Express in active voice and avoid passive voice sentences. For example–
Active voice – The doctor has opined that injury no. 2 was grievous in nature.
Passive Voice – It has been opined by the doctor that nature of injury no. 1 was
grievous.
Active Voice – The IO found blood near the door.
Passive Voice –It was found by the IO that there is blood near the door.
4. Ignore elaborate discussion in respect of undisputed facts.
5. Use such words only in judgment, the meaning of which is correctly known.
6. Avoid two negatives in one sentence.
The document need not be checked unless it is desired by a party.
The document may be checked, if it is desired by party.
He could not have created the trust, except for the benefit of the defendant.
He could have created trust only for the benefit of the defendant.
7. In absence of direct evidences about the main occurrence, try to consider elimination
of other possibilities. For example, in trial of dowary death if the possibilities of
natural death or accidental death is ruled out, it my be safely concluded that death was
either suicidal or homicidal.
Concluding part of Judgment–The findings of fact determines the offence or offences
28
proved or not proved (beyond reasonable doubt) against each accused. The statutory requirements
necessary to be mentioned in judgment in cases of conviction or acquittal has already been
mentioned above. Some more provisions of law necessary to be kept in mind while taking decision
are as follows:
1. When the conviction is under the IPC and it is doubtful under which of the two
sections, or under which of the two parts of the same section, the offence falls, the
court shall distinctly express the same and pass judgment in alternative [Section 354
(2) Cr. P.C.]
2. A person charged with major offence consisting of several particulars and only some
of such particulars constituting minor offence is proved, he may be convicted of such
minor offence though he was not charged with it [Section 222 (1) Cr. P.C] but if
conditions requisite for the initiating of proceedings in respect of that minor offence is
not satisfied, no conviction can be made [Section 222 (4) Cr. P.C.]
3. A person charged with an offence may be convicted of an attempt to commit such
offence although the attempt is not separately charged [Section 222 (3) Cr.P.C]
4. If a single act or series of acts is of such a nature that it is doubtful which of several
offences will constitute, the accused may be charged for any number of such charges
or he may be charged alternatively. However, if in such case, the accused is charged
with one offence and it appears in evidence that he committed a different offence for
which he might have been charged, as above, he may be convicted of the offence
which he is shown to have committed, although he was not charged with it [Section
221 (2) Cr.P.C]
Pronouncement of Judgment –A judgment may be pronounced
1. By dictating whole judgment in open court, to be taken down in shorthand and signing
the transcript and every page thereof as soon as it is made ready and write on it the
date of the delivery of the judgment in open court [Section 353 (1) (2) Cr. P.C]
2. By reading whole judgment or the operative part thereof and then signing the same
(each page of judgment should be signed if it is not in his own hand) [Section 353 (1)
(3) Cr.P.C]
3. The judgment should be pronounced within 14 days from final conclusion of argument.
rrr
29
PART II Synopsis of Important Decisions
1. Code of Civil Procedure, 1908
(i) S.96 - First Appeal - Appellate Court is also a final court of law and fact. First Appeal is
a valuable right of parties and unless restricted by law, whole case
therein is open for rehearing both on questions of fact and law.
2012 (4) BLJ PHC 123
Abdul Maroof and Ors. Vs. Ram Sunder Sah and Anr.
Held: -
In the case of Santosh Hazari vs. Purushottam Tiwari, (2001) 3 Supreme Court Cases
179, the Apex Court has held that while reversing a finding of fact, the appellate court must assign
its own reasons for arriving at different finding. The First Appellate Court is also a final court of law
and fact. The First Appeal is a valuable right of the parties and unless restricted by law, the whole
case therein is open for rehearing both on questions of fact and law. The findings of fact based on
conflicting evidence arrived at by the trial court must weigh with Appellate Court more so when the
findings are based on oral evidence recorded by the trial court. This certainly does not mean that
when appeal lies on facts, the Appellate Court is not competent to reverse a finding of fact arrived
at by the trial judge. As a matter of law, if the appraisal of the evidence by the trial court suffers
from a material irregularity or is based on inadmissible evidence or on conjectures and surmises the
Appellate Court is entitled to interfere with the findings of fact. This decision of the Apex Court has
again been reiterated by the Apex court in AIR 2008 Supreme Court 938 (Union of India and
Anr.vs.Ranchod and others) paragraph 7. In the present case the Appellate Court instead of
discussing the evidences adduced by the parties in support of their respective cases held that since
the matter has already been concluded by the registration authority which was never challenged by
the degendants, the plaintiff's suit has been decreed. As stated above, while decreeing the plaintiff's
suit, the Lower Appellate Court has not met any reason assigned by the trial court. It is settled
principles of law that the registration authorities are not the court and, therefore, any finding
recorded by the registering authority will not be binding of the court. In such circumstances, it was
the duty of the appellate court to have considered the evidences of the parties and should have
recorded independent finding as to whether the plaintiff's sale deed, Exhibit 1 was in fact, executed
by Mostt. Chulhiya or not This was the most important question which could not have been
bypassed by the Lower Appellate Court on the ground that the registering authority has completed
the formalities and witnesses have been examined by him. Therefore, in my opinion, the reason
assigned by the Lower Appellate Court for setting aside the trial court judgement is erroneous,
therefore it is unsustainable in the eye of law.
(ii) Order VI, Rule 17 r.w. S151 - Amendment of Plaint - Power to allow amendment
is wide and can be exercised at any stage of
30
proceeding. Courts have to be liberal in accepting
the same if same is made prior to commencement of
trial. If such application is made after commencement
of trial, court has to arrive at a conclusion that in
spite of due diligence, party could not have raised
the matter before commencement of trial.
2012 (4) BLJ SC 124
Abdul Rehman and Anr. Vs. Mohd. Ruldu and Ors.
Held: -
It is clear that parties to the suit are permitted to bring toward amendment of their pleadings
at any stage of the proceeding for the purpose of determining the real question in controversy
between them. The Courts have to be liberal in accepting the same, if the same is made prior to the
commencement of the trial. If such application is made after the commencement of the trial, in that
event, the Court has to arrive at a conclusion that in spite of due diligence, the party could not have
raised the matter before the commencement of trial.
The original provision was deleted by Amendment Act 46 of 1999, however, it has again
been restored by Amendment Act 22 of 2002 but with an added proviso to prevent application for
amendment being allowed after the trial has commenced, unless the Court comes to the conclusion
that in spite of due diligence, the party could not have raised the matter before the commencement
of trial. The above proviso, to some extent, curtails absolute discretion to allow amendment at any
stage. At present, if application is filed after commencement of trial, it has to be shown that in spite
of due diligence, it could not have been sought earlier. The object of the rule is that Courts should
try the merits of the case that come before them and should, consequently, allow all amendments
that may be necessary for determining the real question in controversy between the parties
provided it does not cause injustice or prejudice to the other side. This Court, in a series of
decisions has held that the power to allow the amendment is wide and can be exercised at any
stage of the proceeding in the interest of justice. The main purpose of allowing the amendment is to
minimize the litigation and the plea that the relief sought by way of amendment was barred by time
is to be considered in the light of the facts and circumstances of each case. The above principles
have been reiterated by this Court in J. Samuel and Others vs. Gattu Mahesh and Others,
(2012) 2 SCC 300 [: 2012(2) BLJ & JLJ 215 (SC)] and Ramesh Kumar Agarwal vs.
Rajmala Exports Pvt. Ltd. and Others, (2012) 5 SCC 337. Keeping the above principles in
mind, let us consider whether the appellants have made out a case for amendment.
Next, we have to see whether the proposed amendments would alter the claim/cause of
action of the plaintiffs. In view of the same, we verified the averments in the un-amended plaint. As
rightly pointed out by Ms. Manmeet Arora, learned counsel for the appellants that the entire factual
matrix for the relief sought for under the proposed amendment had already been set out in the un-
31
amended plaint. We are satisfied that the challenge to the voidness of those sale deeds was implicit
in the factual matrix set out in the un-amended plaint and, therefore, the relief of cancellation of sale
deeds as sought by amendment does not change the nature of the suit as alleged. It is settled law
that if necessary factual basis for amendment is already contained in the plaint, the relief sought on
the said basis would not change the nature of the suit. In view of the same, the contrary view
expressed by the trial Court and High Court cannot be sustained. It is not in dispute that the relief
sought by way of amendment by the appellants could also be claimed by them by way of a
separate suit on the date of filing of the application. Considering the date of the sale deeds and the
date on which the application was filed for amendment of the plaint, we are satisfied that the reliefs
claimed are not barred in law and no prejudice should have been caused to respondents Nos. 1-
3 (defendant Nos. 1-3 therein) if the amendments were allowed and would in fact avoid
multiciplity of litigation.
Learned counsel for the appellants has also brought to our notice that the amendments were
necessitated due to the observations made by the High Court in its earlier order dated 19.4.2007
in C.R. No. 3361 of 2007 to the effect that the appellants' application for ad-interim injunction
without seeking cancellation of the sale deeds is not maintainable. This aspect has not been noticed
by the trial Court as well as the High Court while considering the application filed under Order VI
Rule 17 of the Code.
It is also brought to our notice that respondent Nos. 2 and 3 herein- transferees under the
sale deed, are the nephews of the appellants herein and the transferors and the purchase of the suit
alnd by them is void to their knowledge as they were equally bound by the judgment dated
20.12.1971 and compromise deed dated 4.7.1972 declaring that under the applicable customary
law of inheritance to the parties therein, widows and daughters have no right of inheritance in the
presence of the sons. It is the claim of the appellants that in view of the same, respondents -
transferees are not bona fide purchasers of the suit land. Learned counsel for the appellants again
brought to our notice that these facts were specifically stated in the un-amended plaint and,
therefore, amendment seeking incorporation of relief of declaration that the sale deeds are void
does not change the nature of the suit. Because of those allegations in the un-amended plaint, the
same was denied by the defendants in their written statement and we are satisfied that the
necessary factual matrix as regards the relief of cancellation was already on record and the same
was an issue arising between the parties.
In view of the stand taken by the respondent Nos. 1-3 herein/Defendant Nos. 1-3 in their
written statement and observation of the High Court in the application filed for injunction, we are of
the view that the proposed amendment to include a relief of declaration of title, in addition to the
permanent injunction, is to protect their interest and not to change the basic nature of the suit as
alleged.
In Pankaja & Anr. Vs. Yellapa (Dead) By Lrs. Ors. AIR 2004 Supreme Court 4102 =
32
(2004) 6 SCC 415, this Court held that if the granting of an amendment really subserves the
ultimate cause of justice and avoids further litigation, the same should be allowed. In the same
decision, it was further held that an amendment seeking declaration of title shall not introduce a
different relief when the necessary factual basis had already been laid down in the plaint in regard
to the title.
We reiterate that all amendments which are necessary for the purpose of determining the real
questions in controversy between the parties should be allowed if it does not change the basic
nature of the suit. A change in the nature of relief claimed shall not be considered as a change in the
nature of suit and the power of amendment should be exercised in the larger interests of doing full
and complete justice between the parties.
In the light of various principles which we have discussed and the factual matrix as
demonstrated by learned counsel for the appellants, we are satisfied that the appellants have made
out a case for amendment and by allowing the same, the respondents herein (Defendants Nos. 1-
3) are in no way prejudiced and they are also entitled to file additional written statement if they so
desire. Accordingly, the order of the trial court dated 6.6.2007 dismissing the application for
amendment of plaint in Suit No. 320 of 2003 as well as the High Court in Civil Revision No. 4486
of 2007 dated 13.11.2007 are set aside. The application for amendment is allowed. Since the suit
is of the year 2003, we direct the trial Court to dispose of the same within a period of six months
from the date of receipt of copy of the judgment after affording opportunity to all the parties
concerned. The appeal is allowed. No order as to costs.
(iii) Order 41, Rule 17 (1) - Dismissal of Appeal for default - If appellant does not appear
when appeal is called for hearing court has to dismiss appeal.
Provision does not postulate a situation where appeal has to
be decided on merits because possibility of allowing of appeal
is also there if appellant has to good case on merits even if
nobody had appeared for appellant.
2012 (4) BLJ SC 117
Ghanshyam Dass Gupta Vs. Makhan Lal
Held: -
Rule 17(1) of Order 41 deals with the dismissal of appeal for appellant's default. The above
mentioned provision, even without explanation, if literally read, would clearly indicate that if the
appellant does not appear when the appeal is called for hearing, the court has to dismiss the
appeal. The provision does not postulate a situation where, the appeal has to be decided on
merits, because possibility of allowing of the appeal is also there, if the appellant has a good case
on merits; even if no body had appeared for the appellant. Prior to 1976, conflicting views were
expressed by different High Courts in the country as to the purport and meaning of sub-rule (1) of
Rule 17 of Order 41 CPC. Some High Courts had taken the view that it was open to the appellate
33
court to consider the appeal on merits, even though there was no appearance on behalf of the
appellant at the time of hearing. Some High Courts had taken the view that the High Court cannot
decide the matter on merits, but could only dismiss the appeal for appellant's default. Conflicting
views raised by the various High Courts gave rise to more litigation. The Legislature, therefore, in
its wisdom, felt that it should clarify the position beyond doubt. Consequently, Explanation to sub-
rule (1) of Rule 17 of Order 41 CPC was added by Act 104 of 1976, making it explicit that
nothing in sub-rule (1) of Rule 17 of Order 41 CPC should be construed as empowering the
appellate court to dismiss the appeal on merits where the appellant remained absent or left un-
represented on the day fixed for hearing the appeal. The reason for introduction of such an
explanation is due to the fact that it gives an opportunity to the appellant to convince the appellate
court that there was sufficient cause for non-appearance. Such an opportunity is lost, if the courts
decide the appeal on merits in absence of the counsel for the appellant.
We may, in this connection, refer to a judgment of this Court in Abdur Rahman and Others
vs. Athifa Begum and Others (1996) 6 SCC 62, wherein the scope of explanation to Rule
17(1) of Order 41 CPC came up for consideration. While interpreting the said provision, this
Court took the view that the High Court could not go into the merits of the case if there was no
appearance on behalf of the appellant. We also endorse that view.
For the reasons stated above, we are inclined to allow this appeal and set aside the judgment
of the High Court and restore FRA No. 664 of 2003 and direct the High Court to dispose of the
same in accordance with law. However, there will be no order as to costs.
(iv) Order 7, R. 11 - Rejection of plaint has to be on basis of averments made in plaint plea
taken in written statement are totally irrelevant.
AIR 2012 SC 3023
Bhau Ram V. Janak Singh and Ors.
Held: -
Paddamma (PW.1) deposed that her husband owned land, adjacent to the land of A-2.
There was some dispute regarding the pathway between them. A Panchayat was convened to
resolve the dispute, and the parties were restrained from using the others'land as passageway. She
stated that she was working in the field along with her husband and mother-in-law on 17.11.1999.
At about 4.00p.m., the accused persons, while going to the village, after finishing their work in the
adjacent field, wanted to pass through her land. Her husband raised an objection. Yenkappa (A-
1) then started abusing the deceased and instigated the other accused persons to assault him. The
appellants used axes, and the wooden part of a plough to injure her husband. Her husband, as a
result fell down. When she tried to save him, she too, was threatened by the appellants. Once her
husband had fallen, the accused, however, stopped the assault (A-2) threw down the "Meli" there
and the accused left the place saying that the victim had fallen. Rangayya (PW-6), whocame to the
34
said place, was asked to bring a bullock cart from the village, in which they then took the
deceased to the police station. Upon the advice of the police the deceased was taken to the
hospital, where he was declared dead, She has also admitted in her cross-examination that the
place of occurrence was about 1 km. away from her house and that she had given birth to a girl
child one month prior to the date of occurrence of such incident. Her mother-in-law, who was also
present at the place of occurrence was suffering from weak eye sight, and no longer had good
vision as a result of old age.
(v) Order 2, R. 2 - Cause of action -Meaning - It means bundle of acts which taken with
law applicable to them gives plaintiff right to relief against defendant.
(2012) 8 SCC 706
The Church of Christ Charitable Trust and Educational Charitable Society,
Represented By Its Chairman Vs. Ponniamman Educational Trust Represented by its
Chairperson/Managing Trustee
Held: -
While scrutinizing the plaint averments, it is the bounden duty of the trial court to ascertain the
materials for cause of action. The cause of action is a bundle of facts which taken with the law
applicable to them gives the plaintiff the right to relief against the defendant. Every fact which is
necessary for the plaintiff to prove to enable him to get a decree should be set out in clear terms. It
is worthwhile to find out the meaning of the words "cause of action". A cause of action must include
some act done by the defendant since in the absence of such an act no cause of action can possibly
accrue.
In A.B.C. Laminart (P) Ltd. v. A.P. Agencies this Court explained the meaning of "cause of
action" as follows: (SCC p. 170, para 12)
"12. A cause of action means every fact, which if traversed, it would be necessary for
the plaintiff to prove in order to support his right to a judgment of the court. In other words,
it is a bundle of facts which taken with the law applicable to them gives the plaintiff a right to
relief against the defendant. It must include some act done by the defendant since in the
absence of such an act no cause of action can possibly accrue. It is not limited to the actual
infringement of the right sued on but includes all the material facts on which it is founded. It
does not comprise evidence necessary to prove such facts, but every fact necessary for the
plaintiff to prove to enable him to obtain a decree. Everything which if not proved would give
the defendant a right to immediate judgment must be part of the cause of action. But it has no
relation whatever to the defence which may be set up by the defendant nor does it depend
upon the character of the relief prayed for by the plaintiff."
It is useful to refer the judgment in Bloom Dekor Ltd. v. Subhash Himatlal Desai,
wherein a three-Judge Bench of this Court held as under: (SCC p. 328, para28)
35
"28. By 'cause of action' it is meant every fact, which if traversed, it would be necessary
for the plaintiff to prove in order to support his right to a judgment of the court, (Cooke v.
Gill); in other words, a bundle of facts which it is necessary for the plaintiff to prove in order
to succeed in the suit."
It is mandatory that in order to get relief, the plaintiff has to aver all material facts. In other
words, it is necessary for the plaintiff to aver and prove in order to succeed in the suit.
(vi) Order 1, Rr. 9 and 3 - Non-Joinder of necessary party as defendant - Objection in
this regard should be taken before trial court in order to
provide opportunity to plaintiff to rectify the defect, and even
then if plaintiff persists in not impleading the party, consequences
of non-jointer may follow:
(2012) 8 SCC 706
The Church of Christ Charitable Trust and Educational Charitable Society,
Represented By Its Chairman Vs. Ponniamman Educational Trust Represented by its
Chairperson/Managing Trustee
Held: -
On the other hand, when the plaintiff itself persists in not impleading a necessary party in spite
of objection, the consequences of non-joinder may follow. However, the said objection should be
taken in the trial court itself so that the plaintiff may have an opportunity to rectify the defect. The
said plea cannot be raised in this Court for the first time. This position has been reiterated in State
of U.P. v. Ram Swarup Saroj. We hold that a plea as to the non-joinder of the party cannot be
raised for the first time before this Court if the same was not raised before the trial court and has
not resulted in failure of justice. In the case of non-joinder, if the objection is raised for the first time
before this Court, the Court can always implead the party on the application wherever necessary.
However, in the case on hand, for the disposal of application filed for rejection of the plaint under
Order 7 Rule 11, the second defendant is not a necessary party, hence he need not be impleaded.
Accordingly, we reject the said objection of the respondent herein.
2. Criminal Procedure Code, 1973
(i) S.357 (3), 421 and 431 -Permissibility of imposition of separate sentence of imprisonment
for default in payment of compensation - Reasons therefore,
reiterated.
(2012) 8 SCC 721
R. Mohan V. A.K. Vijay Kumar
Held: -
The idea behind directing the accused to pay compensation to the complainant is to give him
36
immediate relief so as to alleviate his grievance. In terms of Section 357 (3) compensation is
awarded for the loss or injury suffered by the person due to the act of the accused for which he is
sentenced. If merely an order directing compensation is passed, it would be totally ineffective. It
could be an order without any deterrence or apprehension of immediate adverse consequences in
case of its non-observance. The whole purpose of giving relief to the complainant under Section
357 (3) of the Code would be frustrated if he is driven to take recourse to Section 421 of the
Code. Order under Section 357 (3) must have potentiality to secure its observance. Deterrence
can only be infused into the order by providing for a default sentence. If Section 421 of the Code
puts compensation ordered to be paid by the court on a par with fine so far as mode of recovery
is concerned then there is no reason why the court cannot impose a sentence in default of payment
of compensation as it can be done in case of default in payment of fine under Section 64 IPC. It is
obvious that in view of this, in Vijayan, this Court stated that the abovementioned provisions
enabled the court to impose a sentence in default of payment of compensation and rejected the
submission that the recourse can only be had to Section 421 of the Code for enforcing the order of
compensation. Pertinently, it was made clear that observations made by this Court in Hari Singh
are as important today as they were when they were made. The conclusion, therefore, is that the
order to pay compensation may be enforced by awarding sentence in default.
(ii) Ss.438 and 82 - Anticipatory bail -- Grant of proper exercise of discretionary
jurisdiction/disposal of bail application - Matters to be considered by
court - Nature and gravity of accusation, antecedents, possibility of
abscondence of accused, conduct of accused-relevance.
(2012) 8 SCC 730
Lavesh V. State (NCT of Delhi)
Held: -
Before considering the claim of the appellant, it is useful to refer Section 438 of the Code
relating to grant of bail to a person who is apprehending arrest which reads as under:
"438. Direction for grant of bail to person apprehending arrest.--(1) Where any person
has reason to believe that he may be arrested on accusation of having committed a non-
bailable offence, he may apply to the High Court or the Court of Session for a direction under
this section that in the event of such arrest he shall be released on bail; and that court may,
after taking into consideration, inter alia, the following factors, namely--
(i) the nature and gravity of the accusation;
(ii) the antecedents of the applicant including the fact as to whether he has previously
undergone imprisonment on conviction by a court in respect of any cognizable
offence.
(iii) the possibility of the applicant to flee from justice; and
37
(iv) where the accusation has been made with the object of injuring or humiliating the
applicant by having him so arrested,
either reject the application forthwith or issue an interim order for the grant of anticipatory
bail.
Provided that, where the High Court or, as the case may be, the Court of Session, has
not passed any interim order under this sub-section or has rejected the application for grant
of anticipatory bail, it shall be open to an officer in charge of a police station to arrest, without
warrant the applicant on the basis of the accusation apprehended in such application."
It makes it clear that in a non-bailable offence if a person has reason to believe that he may be
arrested, he is free to apply to the High Court or the Court of Session praying that in the event of
such arrest, he shall be released on bail. The belief that the applicant may be arrested must be
founded on reasonable grounds. While considering such a request, the Court has to take into
consideration the nature and the gravity of the accusation, antecedents, possibility of the applicant
to flee from justice, etc. Further, normally, the Court should not exercise its discretion to grant
anticipatory bail in disregard of the magnitude and seriousness of the matter. The matter regarding
the unnatural death of the daughter-in-law at the house of her in-laws was still under investigation
and the appropriate course to adopt was to allow the Magistrate concerned to deal with the same
on the basis of the material before the Court.
From these materials and information, it is clear that the present appellant was not available
for interrogation and investigation and was declared as "absconder". Normally, when the accused
is "absconding" and declared as a "proclaimed offender", there is no question or granting
anticipatory bail. We reiterate that when a person against whom a warrant had been issued and is
absconding or concealing himself in order to avoid execution of warrant and declared as a
proclaimed offender in terms of Section 82 of the Code he is not entitled to the relief of
anticipatory bail.
With the above observation, the appeal is dismissed and the interim protection granted by
this Court on 23-1-2012 stands vacated. The appellant is directed to surrender within a period of
one week from today.
(iii) Ss. 227 and 228 - Discharge of accused and framing of charge against accused.
Relative scope- Distinction between Ss. 227 and 228 explained in
detail.
(2012) 9 SCC 460
Amit Kapoor Vs. Ramesh Chander and Another
Held: -
Framing of a charge is an exercise of jurisdiction by the trial court in terms of Section 228 of
the Code unless the accused is discharged under Section 227 of the Code. Under both these
38
provisions, the court is required to consider the "record of the case" and documents submitted
therewith and, after hearing the parties, may either discharge the accused or where it appears to
the court and in its opinion there is ground for presuming that the accused has committed an
offence, it shall frame the charge. Once the facts and ingredients of the section exists, then the court
would be right in presuming that there is ground to proceed against the accused and frame the
charge accordingly. This presumption is not a presumption of law as such. The satisfaction of the
court in relation to the existence of constituents of an offence and the facts leading to that offence
is a sine qua non for exercise of such jurisdiction. It may even be weaker than a prima facie case.
There is a fine distinction between the language of Sections 227 and 228 of the Code. Section 227
is the expression of a definite opinion and judgment of the Court while Section 228 is tentative.
Thus, to say that at the stage of framing of charge, the Court should form an opinion that the
accused is certainly guilty of committing an offence, is an approach which is impermissible in terms
of Section 228 of the Code.
At the initial stage of framing of a charge, the court is concerned not with proof but with a
strong suspicion that the accused has committed an offence, which, if put to trial, could prove him
guilty. All that the court has to see is that the material on record and the facts would be compatible
with the innocence of the accused or not. The final test of guilt is not to be applied at that stage. We
may refer to the well-settled law laid down by this Court in State of Bihar v. Ramesh Singh.
(SCC pp.41-42,para 4)
"4. Under Section 226 of the Code while opening the case for the prosecution the
Prosecutor has got to describe the charge against the accused and state by what evidence he
proposes to prove the guilt of the accused. Thereafter comes at the initial stage the duty of the
court to consider the record of the case and the documents submitted therewith and to hear
the submissions of the accused and the prosecution in that behalf. The judge has to pass
thereafter an order either under Section 227 or Section 228 of the Code. If 'the Judge
considers that there is no sufficient ground for proceeding against the accused, he shall
discharge the accused and record his reasons for so doing', as enjoined by Section 227. If,
on the other hand, 'the Judge is of opinion that there is ground for presuming that the accused
has committed an offence which---…. (b) is exclusively triable by the court, he shall frame in
writing a charge against the accused', as provided in Section 228. Reading the two
provisions together in juxtaposition, as they have got to be, it would be clear that at the
beginning and the initial stage of the trial the truth, veracity and effect of the evidence which
the prosecutor proposes to adduce are not to be meticulously judged. Nor is any weight to
be attached to the probable defence of the accused. It is not obligatory for the Judge at that
stage of the trial to consider in any detail and weigh in a sensitive balance whether the facts,
if proved, would be incompatible with the innocence of the accused or not. The standard of
test and judgment which is to be finally applied before recording a finding regarding the guilt
or other wise of the accused is not exactly to be applied at the stage of deciding the matter
39
under Section 227 or Section 228 of the Code. At that stage the court is not to see whether
there is sufficient ground for conviction of the accused or whether the trial is sure to end in his
conviction. Strong suspicion against the accused, if the matter remains in the region of
suspicion, cannot take the place of proof of his guilt at the conclusion of the trial. But at the
initial stage if there is a strong suspicion which leads the court to think that there is ground for
presuming that the accused has committed an offence then it is not open to the court to say
that there is no sufficient ground for proceeding against the accused. The presumption of the
guilt of the accused which is to be drawn at the initial stage is not in the sense of the law
governing the trial of criminal cases in France where the accused is presumed to be guilty
unless the contrary is proved. But it is only for the purpose of deciding prima facie whether
the court should proceed with the trial or not. If the evidence which the Prosecutor proposes
to adduce to prove the guilt of the accused even if fully accepted before it is challenged in
cross-examination or rebutted by the defence evidence, if any, cannot show that the accused
committed the offence, then there will be no sufficient ground for proceeding with the trial. An
exhaustive list of the circumstances to indicate as to what will lead to one conclusion or the
other is neither possible nor advisable. We may just illustrate the difference of the law by one
more example. If the scales of pan as to the guilt or innocence of the accused are something
like even at the conclusion of the trial, then, on the theory of benefit of doubt the case is to end
in his acquittal. But if, on the other hand, it is so at the initial stage of making an order under
Section 227 or Section 228, then in such a situation ordinarily and generally the order which
will have to be made will be one under Section 228 and not under Section 227."
Having examined the interrelationship of these two very significant provisions of the Code, let
us now examine the scope of interference under any of these provisions in relation to quashing the
charge. We have already indicated above that framing of charge is the first major step in a criminal
trial where the court is expected to apply its mind to the entire record and documents placed
therewith before the court. Taking cognizance of an offence has been stated to necessitate an
application of mind by the court but framing of charge is a major event where the court considers
the possibility of discharging the accused of the offence with which he is charged or requiring the
accused to face trial. There are different categories of cases where the court may not proceed with
the trial and may discharge the accused or pass such other orders as may be necessary keeping in
view the facts of a given case. In a case where, upon considering the record of the case and
documents submitted before it, the court finds that no offence is made out or there is a legal bar to
such prosecution under the provisions of the Code or any other law for the time being in force and
there is a bar and there exists no ground to proceed against the accused, the court may discharge
the accused. There can be cases where such record reveals the matter to be so predominantly of
a civil nature that it neither leaves any scope for an element of criminality nor does it satisfy the
ingredients of a criminal offence with which the accused is charged. In such cases, the court may
discharge him or quash the proceedings in exercise of its powers under these two provisions.
40
In the light of the above principles, now if we examine the findings recorded by the High
Court, then it is evident that what weighed with the High Court was that firstly it was an abuse of
the process of court and, secondly, it was a case of civil nature and that the facts, as stated, would
not constitute an offence under Section 306 read with Section 107 IPC. Interestingly and as is
evident from the findings recorded by the High Court reproduced supra that "this aspect of the
matter will get unraveled only after a full-fledged trial", once the High Court itself was of the
opinion that clear facts and correctness of the allegations made can be examined only upon full
trial, where was the need for the Court to quash the charge under Section 306 at that stage.
Framing of charge is a kind of tentative view that the trial court forms in terms of Section 228 which
is subject to final culmination of the proceedings.
We have already noticed that the legislature in its wisdom has used the expression "there is
ground for presuming that the accused has committed an offence". This has an inbuilt element of
presumption once the ingredients of an offence with reference to the allegations made are satisfied,
the Court would not doubt the case of the prosecution unduly and extend its jurisdiction to quash
the charge in haste. A Bench of this Court in State of Maharashtra v. Som Nath Thapa referred to
the meaning of the word "presume" while relying upon Black's Law Dictionary. It was defined to
mean "to believe or accept upon probable evidence"; "to take as proved until evidence to the
contrary is forthcoming". In other words, the truth of the matter has to come out when the
prosecution evidence is led, the witnesses are cross-examined by the defence, the incriminating
material and evidence is put to the accused in terms of section 313 of the Code and then the
accused is provided an opportunity to lead defence, if any. It is only upon completion of such steps
that the trial concludes with the court forming its final opinion and delivering its judgment. Merely
because there was a civil transaction between the parties would not by itself alter the status of the
allegations constituting the criminal offence.
(iv) Ss. 397 and 401 - Revisional jurisdiction - Nature, scope and object of Revisional
Jurisdiction explained in detail. Finality of order passed in Revisional
jurisdiction - subject only to jurisdiction of Supreme Court under
Art. 136 of constitution.
(2012) 9 SCC 460
Amit Kapoor Vs. Ramesh Chander and Another
Held: -
Section 397 of the Code vests the court with the power to call for and examine the records
of an inferior court for the purposes of satisfying itself as to the legality and regularity of any
proceedings or order made in a case. The object of this provision is to set right a patent defect or
an error of jurisdiction or law. There has to be a well-founded error and it may not be appropriate
for the court to scrutinize the orders, which upon the face of it bears a token of careful
consideration and appear to be in accordance with law. If one looks into the various judgments of
41
this Court, it emerges that the Revisional jurisdiction can be invoked where the decisions under
challenge are grossly erroneous, there is no compliance with the provisions of law, the finding
recorded is based on no evidence, material evidence is ignored or judicial discretion is exercised
arbitrarily or perversely. These are not exhaustive classes, but are merely indicative. Each case
would have to be determined on its own merits.
Another well-accepted norm is that the revisional jurisdiction of the higher court is a very
limited one and cannot be exercised in a routine manner. One of the inbuilt restrictions is that it
should not be against an interim or interlocutory order. The Court has to keep in mind that the
exercise or revisional jurisdiction itself should not lead to injustice ex facie. Where the Court is
dealing with the question as to whether the charge has been framed properly and in accordance
with law in a given case, it may be reluctant to interfere in exercise of its revisional jurisdiction
unless the case substantially falls within the categories aforestated. Even framing of charge is a
much advanced stage in the proceedings under the Cr. P.C.
It may also be noticed that the revisional jurisdiction exercised by the High Court is in a way
final and no inter court remedy is available in such cases. Of course, it may be subject to
jurisdiction of this Court under Article 136 of the Constitution of India. Normally, a revisional
jurisdiction should be exercised on a question of law. However, when factual appreciation is
involved, then it must find place in the class of cases resulting in a perverse finding. Basically, the
power is required to be exercised so that justice is done and there is no abuse of power by the
court. Merely an apprehension or suspicion of the same would not be a sufficient ground for
interference in such cases.
The jurisdiction of the court under Section 397 can be exercised so as to examine the
correctness, legality or propriety of an order passed by the not specifically use the expression
"prevent abuse of process of any court or otherwise to secure the ends of justice", the jurisdiction
under Section 397 is a very limited one. The legality, propriety or correctness of an order passed
by a court is the very foundation of exercise of jurisdiction under Section 397 but ultimately it also
requires justice to be done. The jurisdiction could be exercised where there is palpable error, non-
compliance with the provisions of law, the decision is completely erroneous, or where the judicial
discretion is exercised arbitrarily. On the other hand, Section 482 is based upon the maxim quando
lex aliquid alicui concedit, concedere videtur id sine quo res ipsa esse non potest i.e. when the law
gives anything to anyone, it also gives all those things without which the thing itself would be
unavoidable. The section confers very wide power on the Court to do justice and to ensure that
the process of the court is not permitted to be abused.
It may be somewhat necessary to have a comparative examination of the powers exercisable
by the court under these two provisions. There may be some overlapping between these two
powers because both are aimed at securing the ends of justice and both have an element of
discretion. But, at the same time, inherent power under Section 482 of the Code being an
42
extraordinary and residuary power, it is inapplicable in regard to matters which are specifically
provided for under other provisions of the Code. To put it simply, normally the court may not
invoke its power under Section 482 of the Code where a party could have availed of the remedy
available under Section 397 of the Code itself. The inherent powers under Section 482 of the
Code are of a wide magnitude and are not as limited as the power under Section 397. Section 482
can be invoked where the order in question is neither an interlocutory order within the meaning of
Section 397 (2) nor a final order in the strict sense. Reference in this regard can be made to Raj
Kapoor v. State. In that very case, this Court has observed that inherent power under Section 482
may not be exercised if the bar under Sections 397(2) and 397(3) applies, except in extraordinary
situations, to prevent abuse of the process of the Court. This itself shows the fine distinction
between the powers exercisable by the Court under these two provisions. In that very case, the
Court also considered as to whether the inherent powers of the High Court under Section 482
stand repelled when the revisional power under Section 397 overlaps. Rejecting the argument, the
Court said that the opening words of Section 482 contradict this contention because nothing in the
Code, not even Section 397, can affect the amplitude of the inherent powers preserved in so many
terms by the language of Section 482. There is no total ban on the exercise of inherent powers
where abuse of the process of the court or any other extraordinary situation invites the court's
jurisdiction. The limitation is self-restraint, nothing more. The distinction between a final and
interlocutory order is well known in law. The orders which will be free from the bar of Section
397(2) would be the orders which are not purely interlocutory but, at the same time, are less than
a final disposal. They should be the orders which do determine some right and still are not finally
rendering the court functus officio of the lis. The provisions of Section 482 are pervasive. It should
not subvert legal interdicts written into the same Code but, however inherent powers of the Court
unquestionably have to be read and construed as free of restriction. Having examined the
interrelationship of these two very significant provisions of the Code, let us now examine the scope
of interference under any of these provisions in relation to quashing the charge. We have already
indicated above that framing of charge is the first major step in a criminal trial where the court is
expected to apply its mind to the entire record and documents placed therewith before the court.
Taking cognizance of an offence has been stated to necessitate an application of mind by the court
but framing of charge is a major event where the court considers the possibility of discharging the
accused of the offence with which he is charged or requiring the accused to face trial. There are
different categories of cases where the court may not proceed with the trial and may discharge the
accused or pass such other orders as may be necessary keeping in view the facts of a given case.
In a case where, upon considering the record of the case and documents submitted before it, the
court finds that no offence is made out or there is a legal bar to such prosecution under the
provisions of the Code or any other law for the time being in force and there is a bar and there
exists no ground to proceed against the accused, the court may discharge the accused. There can
be cases where such record reveals the matter to be so predominantly of a civil nature that it
43
neither leaves any scope for an element of criminality nor does it satisfy the ingredients of a criminal
offence with which the accused is charged. In such cases, the court may discharge him or quash
the proceedings in exercise of its powers under these two provisions.
This further raises a question as to the wrongs which become actionable in accordance with
law. It may be purely a civil wrong or purely a criminal offence or a civil wrong as also a criminal
offence constituting both on the same set of facts. But if the records disclose commission of a
criminal offence and the ingredients of the offence are satisfied, then such criminal proceedings
cannot be quashed merely because a civil wrong has also been committed. The power cannot be
invoked to stifle or scuttle a legitimate prosecution. The factual foundation and ingredients of an
offence being satisfied, the court will not either dismiss a complaint or quash such proceedings in
exercise of its inherent or original jurisdiction. In Indian Oil Corpn. v. NEPC India Ltd. this
Court took the similar view and upheld the order of the High Court declining to quash the criminal
proceedings because a civil contract between the parties was pending.
Having discussed the scope of jurisdiction under these two provisions i.e. Section 397 and
482 of the code and the fine line of jurisdictional distinction, now it well be appropriate for us to
enlist the principles with reference to which the courts should exercise such jurisdiction. However,
it is not only difficult but is inherently impossible to state with precision such principles. At best and
upon objective analysis of various judgments of this Court, we are able to cull out some of the
principles to be considered for proper exercise of jurisdiction, particularly, with regard to quashing
of charge either in exercise of jurisdiction under Section 397 or Section 482 of the Code or
together, as the case may be:
Though there are no limits of the powers of the Court under Section 482 of the Code but the
more the power, the more due care and caution is to be exercised in invoking these powers. The
power of quashing criminal proceedings, particularly, the charge framed in terms of Section 228 of
the Code should be exercised very sparingly and with circumspection and that too in the rarest of
rare cases.
The Court should apply the test as to whether the uncontroverted allegations as made from
the record of the case and the documents submitted therewith prima facie establish the offence or
not. If the allegations are so patently absurd and inherently improbable that no prudent person can
ever reach such a conclusion and where the basic ingredients of a criminal offence are not satisfied
then the Court may interfere.
The High Court should not unduly interfere. No meticulous examination of the evidence is
needed for considering whether the case would end in conviction or not at the stage of framing of
charge or quashing of charge.
Where the exercise of such power is absolutely essential to prevent patent miscarriage of
justice and for correcting some grave error that might be committed by the subordinate courts
even in such cases, the High Court should be loath to interfere, at the threshold, to throttle the
44
prosecution in exercise of its inherent powers.
Where there is an express legal bar enacted in any of the provisions of the Code or any
specific law in force to the very initiation or institution and continuance of such criminal proceedings,
such a bar is intended to provide specific protection to an accused.
The Court has a duty to balance the freedom of a person and the right of the complainant or
prosecution to investigate and prosecute the offender.
The process of the court cannot be permitted to be used for and oblique or ultimate/ulterior
purpose.
Where the allegations made and as they appeared from the record and documents annexed
therewith to predominantly give rise and constitute a "civil wrong" with no "element of criminality"
and does not satisfy the basic ingredients of a criminal offence, the court may be justified in
quashing the charge. Even in such cases, the court would not embark upon the critical analysis of
the evidence.
Another very significant caution that the courts have to observe is that it cannot examine the
facts, evidence and materials on record to determine whether there is sufficient material on the
basis of which the case would end in a conviction: the court is concerned primarily with the
allegations taken as a whole whether they will constitute an offence and, if so, is it an abuse of the
process of court leading to injustice.
It is neither necessary nor is the court called upon to hold a full-fledged enquiry or to
appreciate evidence collected by the investigating agencies to find out whether it is a case of
acquittal or conviction.
Where allegations give rise to a civil claim and also amount to an offence, merely because a
civil claim is maintainable, does not mean that a criminal complaint cannot be maintained.
In exercise of its jurisdiction under Section 228 and /or under Section 482, the Court cannot
take into consideration external materials given by an accused for reaching the conclusion that no
offence was disclosed or that there was possibility of his acquittal. The Court has to consider the
record and documents annexed therewith by the prosecution.
Quashing of a charge is an exception to the rule of continuous prosecution. Where the
offence is even broadly satisfied, the Court should be more inclined to permit continuation of
prosecution rather than its quashing at that initial stage. The Court is not expected to marshal the
records with a view to decide admissibility and reliability of the documents or records but is an
opinion formed prima facie.
Where the charge -sheet, report under Section 173(2) of the Code, suffers from fundamental
legal defects, the Court may be well within its jurisdiction to frame a charge.
Coupled with any or all of the above, where the Court finds that it would amount to abuse of
45
process of the Code or that the interest of justice favours, otherwise it may quash the charge. The
power is to be exercised exdebito justitiae i.e. to do real and substantial justice for administration
of which alone, the courts exist.
[Ref. State of W.B. v. Swapan Kumar Guha; Madhavrao Jiwajirao Scindia v.
Sambhajirao Chandrojirao Angre ; Janata Dal v. H.S.Chowdhary ; Rupan Deol Bajaj v.
Kanwar Pal Singh Gill ; G. Sagar Suri v. State of U.P. ; Ajay Mitra v. State of M.P. : Pepsi
Foods Ltd. v. Special Judicial Magistrate ; State of U.P. v. O.P. Sharma]
(v) S. 439 -Bail - Considerations for grant of bail–kidnapping- Question posed should
be whether accused deserves to be enlarged on bail or not. Although
period of custody is a relevant factor but simultaneously totality of
circumstances and criminal antecedents are also to be weighed.
Social concern has to be kept in view in juxtaposition of individual
liberty. Imposition of conditions is subsequent to order admitting an
accused to bail.
(2012) 9 SCC 446
Ash Mohammad Vs. Shiv Raj Singh @ Lalla Babu and Anr.
Held: -
Be it noted, a stage has come that in certain States abduction and kidnapping have been
regarded as heroism. A particular crime changes its colour with efflux of time. The concept of
crime in the contextual sense of kidnapping has really undergone a sea change and has really
shattered the spine of the orderly society. It is almost nauseating to read almost every day about
the criminal activities relating to kidnapping and particularly by people who call themselves experts
in the said nature of crime.
we may usefully state that when the citizens are scared to lead a peaceful life and this kind of
offences usher in an impediment in establishment of orderly society, the duty of the court becomes
more pronounced and the burden is heavy. There should have been proper analysis of the criminal
antecedents. Needless to say, imposition of conditions is subsequent to the order admitting an
accused to bail. The question should be posed whether the accused deserves to be enlarged on
bail or not and only thereafter issue of imposing conditions would arise. We do not deny for a
moment that period of custody is a relevant factor but simultaneously the totality of circumstances
and the criminal antecedents are also to be weighed. They are to be weighed in the scale of
collective cry and desire. The societal concern has to be kept in view in juxtaposition of individual
liberty. Regard being had to the said parameter we are inclined to think that the social concern in
the case at hand deserves to be given priority over lifting the restriction on liberty of the accused.
(vi) Ss. 24 and 25 - Duties of Public Prosecutor - Apart from ensuring that the guilty do
not go unpunished, extend to ensuring fairness in the proceedings and
46
also to ensure that all relevant facts and circumstances are brought to
notice of court for a just determination of the truth so that due justice
prevails.
(2012) 9 SCC 771
V.K. Sasikala Vrs. State represented by Superintendent of Police
Held: -
In a recent pronouncement in Manu Sharma v. State (NCT of Delhi) to which one of us
(Sathasiva, J.) was a party, the role of a Public Prosecutor and his duties of disclosure have
received a wide and in-depth consideration of this Court. This Court has held that though the
primary duty of a Public Prosecutor is to ensure that an accused is punished, his duties extend to
ensuring fairness in the proceedings and also to ensure that all relevant facts and circumstances are
brought to the notice of the Court for a just determination of the truth so that due justice prevails.
The fairness of the investigative process so as to maintain the citizens' rights under Article 19 and
21 and also the active role of the court in a criminal trial have been exhaustively dealt with by this
Court. Finally, it was held that it is the responsibility of the investigating agency as well as that of the
courts to ensure that every investigation is fair and does not erode the freedom of an individual
except in accordance with law. It was also held that one of the established facets of a just, fair and
transparent investigation is the right of an accused to ask for all such documents that he may be
entitled to under the scheme contemplated by the Code of Criminal Procedure. The said scheme
was duly considered by this Court in different paragraphs of the report.
(vii) Ss. 211, 215 to 217, - Defect in charge when vitiates trial Principles reiterated.
222, 464 and 465 Need for accused to show prejudice caused by error in
charge/non framing of charge and failure of justice occasioned
therapy.
(2012) 9 SCC 650
Bhimanna Vs. State of Karnataka
Held: -
Further, the defect must be so serious that it cannot be covered under Sections 464/465
CrPC, which provide that, an order of sentence or conviction shall not be deemed to be invalid
only on the ground that no charge was framed, or that there was some irregularity or omission or
misjonder of charges, unless the court comes to the conclusion that there was also, as a
consequence, a failure of justice. In determining whether any error, omission or irregularity in
framing the charges has led to a failure of justice, this Court must have regard to whether an
objection could have been raised at an earlier stage during the proceedings or not, While judging
the question of prejudice or guilt, the court must bear in mind that every accused has to right to a
fair trial, where he is aware of a what he is being tried for and where the facts sought to be
47
established against him are explained to him fairly and clearly, and further, where he is given a full
and fair chance to defend himself the said charge(S).
This Court in Sanichar Sahni v. State of Bihar, while considering the issue placed reliance
upon various judgments of this Court particularly on Topandas v. State of Bombay, Willie
(William) Slaney v. State of M.P. ,Fakhruddin v. State of M.P. , State of A.P. v. Thakkidiram
Reddy, Ramji Singh v. State of Bihar and Gurpreet Singh v. State of Punjab and came to
the following conclusion; (Sanichar Sahni case, SCC p.204,para 27)
Therefore…. Unless the convict is able to establish that defect in framing the charges has
caused real prejudice to him and that he was not informed as to what was the real case against him
and that he could not defend himself properly, no interference is required on mere technicalities,
Conviction order in fact is to be tested on the touchstone of prejudice theory".
A similar view has been reiterated in Abdul Sayeed v. State of M.P.
In Shamnsahed M. Multtani v. State of Karnataka this Court explained the meaning of the
phrase "failure of justice" observing that the superior court must examine whether the issue raised
regarding failure of justice is really a failure of justice or whether it is only a camouflage. The court
must further examine whether the said aspect is of such a nature, that non-explanation of it has
contributed to penalising an individual, and if the same is true then the court may say, that since he
was not given an opportunity to explain such aspect, there was "failure of justice" on account of
non-compliance with the principles of natural justice. The expression "failure of justice" is an
extremely pliable or facile an expression which can be made to fit into any situation of a case.
The court must endeavour to find the truth. There would be "failure of justice" not only by
unjust conviction but also by acquittal of the guilty, as a result of unjust failure to produce requisite
evidence. Of course, the rights of the accused have to be kept in mind and safeguarded but they
should not be overemphasised to the extent of forgetting that the victims also have rights. It has to
be shown that the accused has suffered some disability or detriment in the protections available to
him under the Indian criminal jurisprudence. "Prejudice", is incapable of being interpreted in its
generic sense and applied to criminal jurisprudence. The plea of prejudice has to be in relation to
investigation or trial and not matters falling beyond their scope.Once the accused is able to show
that there has been serious prejudice caused to him with respect to either of these aspects, and that
the same has defeated the rights available to him under jurisprudence, then the acccused can seek
benefit under the orders of the court. (Vide Nageshwar Shri Krishna Ghobe v. State of
Maharashtra, State v/ T. Venkatesh Murthy, Rafiq Ahmad v. State of U.P. and Rattiram v.
State of M.P.)
(viii) S. 202 - Twin objects of S. 202 restated. Scrutiny of complaint by Magistrate. Locus
standi - Accused has no locus standi at this stage.
(2012) 10 SCC 517
48
Manharibhai Mulzibhai Kakadia and Anr. Vs. Shaileshbhai Mohanbhai Patel and
Ors.
Held: -
Section 202 of the Code has twin objects one to enable the Magistrate to scrutinize carefully
the allegations made in the complaint with a view to prevent a person named therein as accused
from being called upon to face an unnecessary, frivolous or meritless complaint and the other, to
find out whether there is some material to support the allegations made in the complaint. The
Magistrate has a duty to elicit all facts having regard to the interest of an absent accused person
and also to bring to book a person or persons against whom the allegations have been made. To
find out the above, the Magistrate himself may hold an inquiry under Section 202 of the Code or
direct an investigation to be made by a police officer. The dismissal of the complaint under Section
203 is without doubt a pre-issuance of process stage. The Code does not permit an accused
person to intervene in the course of inquiry by the Magistrate under Section 202. The legal position
is no more res integra in this regard. More than five decades back, this Court in Vadilal Panchal v.
Dattatraya Dulaji Ghadigaonkar with reference to Section 202 of the Criminal Procedure Code,
1898 (corresponding to Section 202 of the present Code) held that the inquiry under Section 202
was for the purpose of ascertaining the truth or falsehood of the complaint i.e. for ascertaining the
truth or falsehood of the complaint i.e. for ascertaining whether there was evidence in support of
the complaint so as to justify the issuance of process and commencement of proceedings against
the person concerned.
(ix) S. 154 - FIR - Once registration of FIR is proved by police and same is accepted on
record by court and prosecution establishes its case beyond reasonable
doubt by other admissible, cogent and relevant evidence, it will be
impermissible for court to ignore evidentiary value of FIR. FIR by itself
is not a substantive piece of evidence but it certainly is a relevant
circumstance of evidence produced by investigating Agency.
2012 (4) BLJ SC 5
Bable @ Gurdeep Singh Vs. State of Chattisgarh Tr. P.S.O.P. Kursipur
Held: -
Once registration of the FIR is proved by the Police and the same is accepted on record by
the Court and the prosecution establishes its case beyond reasonable doubt by other admissible,
cogent and relevant evidence, it will be impermissible for the Court to ignore the evidentiary value
of the FIR. The FIR, Ext. P1, has duly been proved by the statement of PW10, Sub-Inspector,
Suresh Bhagat. According to him, he had registered the FIR upon the statement of PW1 and it was
duly signed by him. The FIR was registered and duly formed part of the records of the police
station which were maintained in normal course of its business and investigation. Thus, in any case,
it is a settled proposition of law that the FIR by itself is not a substantive piece of evidence but it
49
certainly is a relevant circumstance of the evidence produced by the investigating Agency. Merely
because PW1 had turned hostile, it cannot be said that the FIR would lose all its relevancy and
cannot be looked into for any purpose. In the present case, PW11 and-PW 14 are the two
persons who had reached the place of incident immediately after the occurrence. They were
instantaneously told by the deceased as to who the assailants were. They have substantially
supported what had been recorded in the FIR which further stands corroborated by the medical
evidence and the statements of other witnesses. In these circumstances, we cannot discredit the
statements of PW11 and PW14 merely because PW1 has turned hostile. Besides this, in
furtherance to the statements of the accused persons, recovery of the weapons used in the crime
was effected.
(x) S. 313 - Examination of accused - It is option of the accused whether to remain silent
or to provide answer to questions asked by court once accused opts to give
answers and puts forward his own defence or events as they occurred, then
accused is bound by such statement and Court is at liberty to examine it in
light of evidence produced on record.
2012 (4) BLJ SC 5
Bable @ Gurdeep Singh Vs. State of Chattisgarh Tr. P.S.O.P. Kursipur
Held: -
The legislative scheme contained under the provisions of Section 313 of the Code of
Criminal Procedure, 1973 (Cr. P.C.) is to put to the accused all the incriminating material against
him and it is equally important to provide an opportunity to the accused to state his case. It is the
option of the accused whether to remain silent or to provide answer to the question asked by the
Court. Once the accused opts to give answers and, in fact, puts forward his own defence or the
events as they occurred, then the accused is bound by such statement and the Court is at liberty to
examine it in light of the evidence produced on record.
(xi) S. 439 (2) - Cancellation of bail - Grant or rejection of bail stands on one footing but
cancellation of bail is a harsher step and stands on different footing.
Unless there is specific allegation of misuse of bail or tempering of
prosecution evidence bail should not normally be cancelled. Re-
appreciation of evidence for purpose of cancellation of bail should
normally be avoided.
2012 (4) BLJ PHC 3
Bhavesh Kumar Sahu Vs. State of Bihar and Anr.
Held: -
The learned District and Sessions Judge, Bhagalpur, has also submitted the enquiry report,
wherein he has come to a finding that the case diary was officially received on 16.12.2009 and it
50
was handed over to learned Additional Public Prosecutor for his examination, so that bail petition
was finally heard and disposed of. The learned District and Sessions Judge has come to a finding
that though there was carelessness or laches on the part of Bench clerk/officer clerk in drawing
routine order regarding bail petition as also in the order sheet of other cases, because of lack of
proper training to the Bench Clerk/office clerk, but as a matter of fact, the case diary was received
in the court and thereafter the bail petition was finally disposed of by the impugned order dated
21.12.2009.
After having heard the parties at length and on perusal of the enquiry report submitted by the
learned District and Sessions Judge, Bhagalpur, this Court does not find any illegality or irregularity
in the manner in which bail was granted to opposite party no.2. So far the contention of the learned
counsel for the petitioner regarding non-consideration of full merit of the case is concerned, this
Court is of the view that re-appreciation of evidence for the purpose of cancellation of bail should
normally be avoided. However, in some exceptional circumstances, bail can be cancelled, when
on purely irrelevant considerations bail is granted to an accused. Law in this regard has been well
settled by the Apex Court in the case of Naendra K. Amin vs. State of Gujarat (AIR 2008 SC
(Supp.) 1939) as also in the case of Ram Babu Tiwary vs. State of M.P. (AIR 2009 SC
(Supp.) 1664). Materials available on record do not necessitate the re-appreciation of evidence in
the present case. I am conscious of the fact that parameters applied either for grant or rejection of
bail are different and the same can not be applied for the purpose of cancellation of bail of an
accused. It is well established that grant or rejection of bail stands on one footing, but cancellation
of bail is a harsher step and stands on different footing, since it involves curtailment of liberty of an
individual. Once an accused is granted bail during the pendency of enquiry or trial, unless and until
there is specific allegation of misuse of privilege of bail or tampering of prosecution evidence or
similar such allegation, bail should not be normally cancelled. Reference can be made for the
above propositions of law to the celebrated judgments of the Apex Court in the cases of Aslam
Babalal Desai vs. State of Maharashtra (AIR 1993 SC-I) and Dinesh M.N.(S.P.) vs. State
of Gujarat (AIR 2008 SC 2318).
In the present case, admittedly bail was granted to opposite party no. 2 on 21.12.2009 and
he has enjoyed the privilege of bail for more than two and half years. The petitioner has not at all
alleged misuse of privilege of bail or tampering with the prosecution evidence by opposite party
no.2. This Court does not find that the learned Sessions court has acted in a haste manner for grant
of bail to opposite party no. 2. Admittedly, the case diary called for on 10.12.2009, as per the
enquiry report of the learned District and Sessions Judge, Bhagalpur, was received on 16.12.2009
and finally bail petition was heard and decided on 21.12.2009. Therefore, the contention raised on
behalf of the petitioner that learned additional Sessions Judge, Naugachia, acted in a haste manner
for granting bail to opposite party no.2 does not seem to be correct. The facts appearing in the
case of Subodh Kumar Yadav vs. State of Bihar (supra) were entirely different from the facts
appearing in the present case. Hence reliance placed by the learned counsel appearing on behalf of
51
the petitioner on the case of Subodh Kumar Yadav vs. State of Bihar (supra) is misconceived.
For the reasons recorded above, this Court does not find any cogent and valid reason for
cancellation of bail granted to opposite party no.2. Consequently, the petition fails and is
accordingly dismissed.
(xii) Ss. 167 (2) and 309 - Remand - Directing remand of accused is fundamentally a
judicial function. Magistrate does not act in executive capacity
himself whether materials placed before him justify such
remand. Magistrate has to apply his mind and not to pass
order of remand in a mechanical manner.
2012 (4) BLJ SC 134
Manubhai Ratilal Patel Tr. Ushaben Vs. State of Gujarat & Ors.
Held: -
Keeping in view the aforesaid concepts with regard to the writ of habeas corpus, especially
pertaining to an order passed by the learned Magistrate at the time of production of the accused,
it is necessary to advert to the schematic postulates under the Code relating to remand. There are
two provisions in the Code which provide for remand, i.e., Sections 167 and 309. The Magistrate
has the authority under Section 167(2) of the Code to direct for detention of the accused in such
custody, i.e., police or judicial, if he thinks that further detention is necessary.
The act of directing remand of an accused is fundamentally a judicial function. The Magistrate
does not act in executive capacity while ordering the detention of an accused. While exercising this
judicial act, it is obligatory on the part of the Magistrate to satisfy himself whether the materials
placed before him justify such a remand or, to put it differently, whether there exist reasonable
grounds to commit the accused to custody and extend his remand. The purpose of remand as
postulated under Section 167 is that investigation cannot be completed within 24 hours. It enables
the Magistrate to see that the remand is really necessary. This requires the investigating agency to
send the case diary along with the remand report so that the Magistrate can appreciate the factual
scenario and apply his mind whether there is a warrant for police remand or justification for judicial
remand or there is no need for any remand at all. It is obligatory on the part of the Magistrate to
apply his mind and not to pass an order of remand automatically or in a mechanical manner. It is
apt to note that in Madhu Limaye (Supra), it has been stated that once it is shown that the arrests
made by the police officers were illegal, it was necessary for the State to establish that at the stage
of remand, the Magistrate directed detention in jail custody after applying his mind to all relevant
matters.
52
3. Criminal Trial
(i) Appreciation of Evidence - Contradictions, inconsistencies, exaggerations or
embellishments - Discrepancies or improvements in
statements of witnesses - Principles reiterated.
(2012) 10 SCC 433
Kuriya and Another Vs. State of Rajsthan
Held:-
The other submission on behalf of the appellant relates to contradictions and improvements in
the statements of the witnesses. It is contended that Ext. P-4 does not confine itself to the lodging
of the FIR. PW 3 has not mentioned the presence of PW 15 at the place of occurrence while,
according to PW 15, he was present at the site. The witnesses had also stated that the neck of the
deceased was broken, while according to PW 6, it was not so. The witnesses, including PW 3,
PW 7 and PW 15 have made definite improvements in their statements before the court in
comparison with their statements recorded under Section 161 CrPC by the investigating officer,
with which they were even confronted. The counsel has then argued that the witnesses have to be
of "sterling worth", otherwise the case of the prosecution would fall.
"Sterling worth" is not an expression of absolute rigidity. The use of such an expression in the
context of criminal jurisprudence would mean a witness worthy of credence, one who is reliable
and truthful. This has to be gathered from the entire statement of the witnesses and the demeanour
of the witnesses, if any, noticed by the court. Linguistically, "sterling worth" means "thoroughly
excellent" or "of great value". This term, in the context of criminal jurisprudence cannot be of any
rigid meaning. It must be understood as a generic term. It is only an expression that is used for
judging the worth of the statement of a witness. To our mind, the statements of the witnesses are
reliable, trustworthy and deserve credence by the Court. They do not seem to be based on any
falsehood.
As far as absence of the name of PW 15 from the FIR (Ext. P-4) is concerned, it is clear that
PW 3 was following his father from behind and the moment the accused persons, who were large
in number, started assaulting his father with weapons that they were carrying, for fear of his own life
and to bring people to save his father, he ran from the site. Obviously, PW 15 appeared at the
scene at that time and PW 3 had not seen him at that juncture. Afterwards, when he came to the
site along with other witnesse i.e. PW 2, PW 4 and PW7, he saw his father's body being thrown
near the hand-pump in front of the house of the accused. The death of his father would have
perturbed him so much that his priorities would be only to take his father to the hospital and inform
the police, rather than viewing as to who was there around him besides the persons who had come
with him. The presence of PW 15, thus, cannot be doubted at the site in question. He was going
from the bus-stand to his house and had stopped on the way after seeing the incident. This
behaviour of PW 15 is very normal behaviour and does not call for the raising of any unnecessary
doubts.
53
Similarly, in the post-mortem report, no bleeding injury was noticed, which obviously means
that there was no open cut injury which was bleeding. In the inquest report, the injuries of the
deceased have been noticed and it had also been noticed that blood was coming from the body of
the deceased which could be very possible when examined in conjunction with the statement of the
witnesses including PW 3, PW 7 and PW 15 that the clothes of the deceased were bloodstained
and his body was dragged from inside the house of the accused to the outside near the hand-
pump.
No doubt, the eyewitnesses have stated that the neck of the deceased was broken, while
according to other witnesses, it was lying in a twisted condition. According to the post-mortem
report (Ext. P-11) and statement of PW 6, there were bruises on the entire back including
shoulders. However, no apparent external injury was noticed on the neck of the deceased. But
after dissecting the neck, the doctor came to know that there was swelling in the neck muscles and
hard bone edges had fractures which were prior to the death of the deceased. In Ext. P-2, when
the investigating officer under item 8 examined the neck of the deceased, he also noticed that the
neck was not stable and was loosely turning both sides with external aid. This clearly shows that
the neck of the deceased was badly injured and even had a fracture. It is obvious that there is also
no contradiction between the statement of the witnesses and the medical evidence even in this
regard.
These cannot be termed as contradictions between the statements of the witnesses they are
explainable variations which are likely to occur in the normal course and do not, in any way,
adversely affect the case of the prosecution. Thus, there are no material contradictions in the
statement of the witnesses or the documents, nor can the presence of PW 15 be doubted at the
place of occurrence.
For instance PW 15, in his cross-examination, had stated before the Court that Laleng had
twisted the neck of the deceased. According to the accused, it was not so recorded in his
statement under Section 161, Ext. D-2 upon which he explained that he had stated before the
police the same thing, but he does not know why the police did not take note of the same.
Similarly, he also said that he had informed the police that the four named accused had dragged the
body of the deceased and thrown it near the hand-pump outside their house, but he does not know
why it was not so noted in Ext. D-2. There are some variations or insignificant improvements in the
statements of PW 3 and PW 7. According to the learned counsel appearing for the appellants,
these improvements are of such nature that they make the statement of these witnesses unbelievable
and unreliable. We are again not impressed with this contention. The witnesses have stated that
they had informed the police of what they stated under oath before the court, but why it was not so
recorded in their statements under Section 161 recorded by the investigating officer would be a
reason best known to the investigating officer. Strangely, when the investigating officer, PW 16,
was being cross-examined, no such question was put to him as to why he did not completely
record the statements of the witnesses or whether these witnesses had made such aforementioned
statements. Improvements or variations in the statements of the witnesses should be of such nature
54
that it would create a definite doubt in the mind of the court that the witnesses are trying to state
something which is not true and which is not duly corroborated by the statements of the other
witnesses. That is not the situation here. These improvements do not create any legal impediment
in accepting the statements of PW 3, PW 4, PW 7 and PW 15 made under oath.
This Court has repeatedly taken the view that the discrepancies or improvements which do
not materially affect the case of the prosecution and are insignificant cannot be made the basis for
doubting the case of the prosecution. The courts may not concentrate too much on such
discrepancies or improvements. The purpose is to primarily and clearly sift the chaff from the grain
and find out the truth from the testimony of the witnesses. Where it does not affect the core of the
prosecution case, such discrepancy should not be attached undue significance. The normal course
of human conduct would be that while narrating a particular incident, there may occur minor
discrepancies. Such discrepancies may even in law render credential to the depositions. The
improvements or variations must essentially relate to the material particulars of the prosecution
case. The alleged improvements and variations must be shown with respect to material particulars
of the case and the occurrence. Every such improvement, not directly related to the occurrence, is
not a ground to doubt the testimony of a witness. The credibility of a definite circumstance of the
prosecution case cannot be weakened with reference to such minor or insignificant improvements.
Reference in this regard can be made to the judgments of this Court in Kathi Bharat Vajsur v. State
of Gujarat, Narayan Chetanram Chaudhary v. State of Maharashtra, Gura Singh v. State of
Rajasthan and Sukhchain Singh v. State of Haryana.
What is to be seen next is whether the version presented in the Court was substantially similar
to what was said during the investigation. It is only when exaggeration fundamentally changes the
nature of the case, the Court has to consider whether the witness was stating the truth or not. (Ref.
Sunil Kumar v. State (Govt. of NCT of Delhi)).
4. Indian Penal Code, 1860
(i) S.406 - Constitution of India Art. 226 - Criminal breach of trust - FIR - Element of
dishonest intention is an essential element to constitute offence of criminal
breach of trust. FIR has been lodged only to recover part of question money
due from petitioner. It is a case of breach of trust simpliciter. Matter is purely
civil in nature. FIR do not disclose commission of any cognizable offence -
FIR quashed.
2012 (4) BLJ PHC 14
Rajeeb Ranjan Kumar Vs. State of Bihar & Others
Held: -
I have carefully considered the rival submissions made on behalf of the parties. There is no
dispute with the proposition of law that at the stage of investigation the plausible defence of the
accused is not to be seen. It is the allegation appearing in the F.I.R. which is to be seen by the
Court where the question for consideration is as to whether the F.I.R. should be quashed or not. It
55
can be quashed only under the circumstance where the allegations, even if, taken at their face value
and accepted in their entirety do not constitute the offence alleged.
The most essential ingredient of criminal breach of trust is, therefore, misappropriation with a
dishonest intention. Breach of trust simpliciter is not an offence as it is not associated with an
intention which is dishonest. The term 'dishonestly' defined under Section 24 of the Indian Penal
Code means doing anything with the intention of causing wrongful gain to one person or wrongful
loss to another.
In the background of the facts and law laid down by the Apex Court, if I look to the F.I.R. in
question, I find that the same has been instituted only with the purpose to recover an amount which
is alleged to be due against the petitioner. There is no whisper in the F.I.R. that there was any act
of inducement on the part of the petitioner or he had any intention to cheat from the very inception.
The admitted position is that he participated in an auction held by the respondents for settlement of
a pond. The respondents settled the pond in favour of the petitioner, as he was the highest bidder.
He deposited 50% of the total bid amount but failed to deposit the balance amount due against
him. Such being the position, in my view, the allegations made in the F.I.R. do not constitute
cognizable offence. The allegations, at best, make out a case of breach of trust simpliciter. There is
no whisper in the F.I.R. that the breach of trust committed by the petitioner was with an ingredient
of mens rea. An act of breach of trust simpliciter involves a civil wrong of which the person
wronged may seek his redress for damages in a civil court but a breach of trust with mens rea give
rise to a criminal prosecution as well.
Having regard to all the circumstances, particularly that the matter is purely of a civil nature
and the allegations made in the F.I.R. do not disclose commission of any cognizable offence, in my
view, the F.I.R. is liable to be quashed.
For the reasons assigned, hereinabove, the F.I.R. of Agam Kuan P.S. Case No.210 of 2011
dated 10.8.2011 is quashed.
(ii) S.34 - Common intention - Applicability - It requires pre-arrranged plan and pre
suppose prior concert. If common intention is proved but no overt act is
attributed to individual accused, S. 34 will be attracted as essentially it involves
Vicareous liability. But, if participation of accused in crime is proved and
common intention is absent S. 34 cannot be invoked.
2012 (4) BLJ SC 129
Suresh Sakharam Nangare Vs. State of Maharashtra
Held: -
Since the conviction of the appellant is based only with the aid of Section 34 of IPC, it is
useful to refer the same:-
"34. Acts done by several persons in furtherance of common intention.- When a
criminal act is done by several persons in furtherance of the common intention of all, each of
56
such persons is liable for that act in the same manner as if it were done by him alone."
A reading of the above provision makes it clear that to apply Section 34, apart from the fact
that there should be two or more accused, two factors must be established: (i) common intention,
and (ii) participation of accused in the commission of an offence. It further makes clear that if
common intention is proved but no overt act is attributed to the individual accused, Section 34 will
be attracted as essentially it involves vicarious liability but if participation of the accused in the
crime is proved and common intention is absent, Section 34 cannot be invoked. In other words, it
requires a pre-arranged plan and pre-supposes prior concert, therefore, there must be prior
meeting of minds.
(iii) S.302/34 or S. 304 pt. I r/w S. 34 - Murder or lesser offence - Determination of -
Nature and manner of use (blunt side) of
weapons to inflict injuries which caused death.
Injuries inflicted however on vital part of body
i.e. head, inference from.
(2012) 10 SCC 402
Selvam Vs. State of Tamilnadu
Held: -
We have considered the submissions of the learned counsel for the parties and we find that
the difference in the version in the FIR and the version in the evidence PW 1 and PW 2 is not very
material so as to create a reasonable doubt with regard to the participation of Accused 1, 6 and 7
in the assault on the deceased:
In the FIR, it has been alleged that Accused 1 and 6 delivered a cut on the deceased. In his
evidence, PW 1 has stated that Accused 1 had delivered a cut on the centre of the head of the
deceased and Accused 6 delivered a cut on the head of the deceased. Similarly, in his evidence
PW 2 has stated that Accused 1 delivered a cut on the centre of the head of the deceased and
Accused 6 snatched the aruval from Accused 1 and delivered a cut on the centre of the head of the
deceased. The FIR and the evidence of PW 1 and PW 2 are, thus, clear that Accused 1 and
Accused 6 delivered cut injuries on the deceased.
Regarding the participation of Accused 7 in the assault, in the FIR it is alleged that Accused
7 assaulted on "us" with a stick. The evidence of PW 1 and PW 2 is that Accused 7 assaulted on
the left side of the head of the deceased with a stick. The word "us" in the FIR cannot mean to
exclude the deceased inasmuch as the deceased was the brother of PW 1 and was the son of PW
2. There is evidence to show that besides the deceased, PW 1 and PW 2 were also injured and
were treated at the hospital. Hence, Accused 7 has used the stick not just against PW 1 and PW
2, but also against the deceased.
We, therefore, do not find any material difference between the version in the FIR and in the
evidence of PW 1 and PW 2 on the role of Accused 7 in the assault.
57
The evidence of PW 1 and PW 2, in our opinion, establishes beyond reasonable doubt that
Accused 1 used the aruval to strike at the head of the deceased. From the evidence of PW 1 and
PW 2, it is also established beyond reasonable doubt that Accused 6 snatched the aruval from
Accused 1 and struck on the head of the deceased. The evidence of PW 1 and PW 2 also
establish that Accused 7 struck the head of the deceased by a stick. The result of all these acts of
Accused 1, 6 and 7 is death of the deceased.
Section 34 IPC states that:
"34. Acts done by several persons in furtherance of common intention.-- When a
criminal act is done by several persons in furtherance of the common intention of all, each of
such persons is liable for that act in the same manner as if it were done by him alone."
Section 33 IPC, states that the word "act" denotes as well as a series of acts as a single act.
Thus, even though Accused 1, 6 and 7 may have committed different acts, they have cumulatively
committed the criminal act which has resulted in the death of the deceased and are liable for the
criminal act by virtue of Section 34 IPC. We, therefore, do not find any merit in the submission that
Accused 7 was not liable for the same punishment as Accused 1 and 6.
The next question which we have to decide is: whether the criminal act committed by
Accused 1, 6 and 7 amounts to murder under Section 300 IPC, or some other offence.
The medical evidence of PW 11 is clear that all the injuries of the deceased were most
probably as a result of an assault by a blunt weapon and in the opinion of PW 11, the deceased
appears to have died due to head injuries. PW 11 has ALSO ADMITTED IN HER cross-
examination that she did not see any incised injuries during the post-mortem examination and had
a sickle been used it would have caused incised wounds. Thus, it appears that Accused 1 and
Accused 6 had used not the sharp side but the blunt side of the aruval and Accused 7 had used the
stick in the assault on the deceased. The fact that the blunt side of the aruval and a stick was used
in the assault on the deceased would go to show that Accused 1, 6 and 7 did not have any intention
to cause the death of the deceased. Nonetheless, the injuries caused by Accused 1, 6 and 7 were
all on the head of the deceased, including the parietal and temporal regions. Accused 1, 6 and 7,
thus, had the intention of causing bodily injury as is likely to cause death and were liable for
punishment for culpable homicide not amounting to murder under Section 304 Part I IPC.
On similar facts, where injuries were caused by a blunt weapon, this Court in State of Punjab
v. Tejinder Singh held in para 8: (SCC pp. 517-18)
"8. In view of our above findings we have now to ascertain whether for their such acts
A-1 and A-2 are liable to be convicted under Section 302 read with Section 34 IPC. It
appears from the evidence of PW 4 and PW 5 that the deceased was assaulted both with the
sharp edge and blunt edge of the gandasas and the nature of injuries also so indicates. If really
the appellants had intended to commit murder, they would not have certainly used the blunt
edge when the task could have been expedited and assured with the sharp edge. Then again
we find that except one injury on the head, all other injuries were on non-vital parts of the
58
body. Post-mortem report further shows that even the injury on the head was only muscle-
deep. Taking these facts into consideration we are of the opinion that the offence committed
by the appellants is one under Section 304 (Part I) IPC and not under Section 302 IPC."
In this case, the assault on the deceased was on 16-11-2006 and the deceased died in the
hospital after nine days on 25-11-2006. In Abani k. Debnath v. State of Tripura this Court, after
considering the nature of the injuries as well as the fact that the deceased succumbed to the injury
after a lapse of seven days, took the view that the conviction of the accused in that case cannot fall
under Section 302 IPC.
After considering the evidence of PW 1 and PW 2, the medical evidence of PW 11 and the
fact that the deceased died after nine days of the assault, we are of the considered opinion that the
trial court and the High Court were not right in convicting the appellants under Section 302 IPC,
and the appellants should have been convicted instead under Section 304 Part I read with Section
34 IPC. We accordingly allow these appeals in part, modify only the conviction and sentence on
the appellants under Section 302 IPC, and instead order that the appellants (namely, Accused 1,
6 and 7) are convicted under Section 304 Part I read with Section 34 IPC and sentenced to
rigorous imprisonment for seven years. The fine amount imposed by the trial court and affirmed by
the High Court is affirmed.
(iv) S. 120-B r/w S. 302 - Criminal Conspiracy - Proof of Ingredients - Meeting of minds -
Need to establish - Principles reiterated. Proof or otherwise of
conspiracy is usually a matter of inference. But what is conspicuous
by its absence is essential meeting of minds between accused B,
M and G to commit murder of deceased.
(2012) 9 SCC 696
Baliya @ Bal Kishan Vs. State of Madhya Pradesh
Held: -
The offence of "criminal conspiracy" is defined in Section 120-A of the Penal Code whereas
Section 120-B of the Code provides for punishment for the said offence. The foundation of the
offence of criminal conspiracy is an agreement between two or more persons to cooperate for the
accomplishment/performance of an illegal act or an act which is not illegal by itself, through illegal
means. Such agreement or meeting of minds create the offence of criminal conspiracy and
regardless of proof or otherwise of the main offence to commit which the conspiracy may have
been hatched, once the unlawful combination of minds is complete, the offence of criminal
conspiracy stands committed. More often than not direct evidence of the offence of criminal
conspiracy will not be forthcoming and proof of such an offence has to be determined by a process
of inference from the established circumstances of a given case.
The essential ingredients of the said offence, the permissible manner of proof of commission
thereof and the approach of the courts in this regard has been exhaustively considered by this
Court in several pronouncements of which, illustratively, reference may be made to E.K.
59
Chandrasenan v. State of Kerala, Kehar Singh v. State (Delhi Admn.), Ajay Aggarwal v.
Union of India and Yash Pal Mittal v. State of Punjab. The propositions of law which
emanate from the above cases are, in no way, fundamentally different from what has been stated
by us hereinabove.
The offence of criminal conspiracy has its foundation in an agreement to commit an offence or
to achieve a lawful object through unlawful means. Such a conspiracy would rarely be hatched in
the open and, therefore, direct evidence to establish the same may not be always forthcoming.
Proof or otherwise of such conspiracy is a matter of inference and the court in drawing such an
inference must consider whether the basic facts i.e. circumstances from which the inference is to be
drawn have been proved beyond all reasonable doubt, and thereafter, whether from such proved
and established circumstances no other conclusion except that the accused had agreed to commit
an offence can be drawn. Naturally, in evaluating the proved circumstances for the purposes of
drawing any inference adverse to the accused, the benefit of any doubt that may creep in must go
to the accused.
Applying the above tests we find that in the present case the prosecution had proved, through
the evidence of PWs 8 and 11, the conversation between Dr. Sandhya Swami and the accused
Baliya to the effect that the reputation of Dr. Sandhya Swami had suffered because of accused
Baliya and further that a pamphlet in this regard has been published. The prosecution has also
succeeded in proving that the accused Baliya had stated that he knew who was the author of the
pamphlet and that Baliya had told accused Manish and Gopal that the author of the pamphlet
(deceased Pradeep) should not be spared. While this happened in the afternoon of the day of the
occurrence, in the early part of the evening hours the deceased Pradeep was found lying injured on
the road and on being brought to the hospital, was declared dead. Whether on this evidence the
conclusion that the appellant-accused had hatched a conspiracy to commit the murder of Pradeep
can be drawn to the exclusion of all other possible conclusion is the question that requires our
answer.
5. Evidence Act, 1860
(i) S. 80 - Municipal record of right has got presumption of validity. But presumption of
correctness can apply only to genuine, not forged or fraudulent entries. Distinction
may be fine but it is real. Fraud and forgery rob a document of all its legal effect
and cannot found a claim to possessory title. However, unless it is shown that
entry is fraudulent court cannot make any enquiry with regard to that.
2012 (4) BLJ PHC 199
Madan Prasad & Anr. Vs. Mostt. Malti Devi & Ors.
Held: -
So far the submission that except the municipal record of right, no revenue records have been
produced is concerned, it may be mentioned here that the municipal record of right has got
presumption of validity. In the case of Vishwa Vijay Bharati vs. Fakhrul Hassan and others, AIR
60
1976 Supreme Court 1485, the Apex court at paragraph 14 has held that it is true that the entries
in the revenue record ought, generally, to be accepted at their face value and courts should not
embark upon an appellate inquiry into their correctness. But the presumption of correctness can
apply only to genuine, not forged or fraudulent, entries. The distinction may be fine but it is real.
The distinction is that one cannot challenge the correctness of what the entry in the revenue record
states but the entry is open to the attack that it was made fraudulently or surreptitiously. Fraud and
forgery rob a document of all its legal effect and cannot found a claim to possessory title.
Admittedly, the revenue record of right is in the name of father of Dhebar Mahato. Unless it is
shown that the entry is fraudulent, the court cannot make any enquiry with regard to that.
(ii) S. 3 -Appreciation of Evidence - Witnesses - Menace of witnesses turning hostile
erodes criminal judicial system. Court should not be mute spectator but shall make
every effort to bring home truth.
AIR 2012 SC 3104
State Tr. P.S. Lodhi Colony, New Delhi Vs. Sanjeev Nanda
Held: -
Witness turning hostile is a major disturbing factor faced by the criminal courts in India.
Reasons are many for the witnesses turning hostile, but of late, we see, especially in high profile
cases, there is a regularity in the witnesses turning hostile, either due to monetary consideration or
by other tempting offers which undermine the entire criminal justice system and people carry the
impression that the mighty and powerful can always get away from the clutches of law thereby,
eroding people's faith in the system. This court in State of U.P. v. Ramesh Mishra and Anr.
[AIR 1996 SC 2766 : (1996 AIR SCW 3468)] held that it is equally settled law that the evidence
of hostile witness could not be totally rejected, if spoken in favour of the prosecution or the
accused, but it can be subjected to closest scrutiny and that portion of the evidence which is
consistent with the case of the prosecution or defence may be accepted. In K. Anbazhagan v.
Superintendent of Police and Anr. [AIR 2004 SC 524 : (2003 AIR SCW 6468)], this Court held
that if a court finds that in the process the credit of the witness has not been completely shaken, he
may after reading and considering the evidence of the witness as a whole with due caution, accept,
in the light of the evidence on the record that part of his testimony which it finds to be creditworthy
and act upon it. This is exactly what was done in the instant case by both the trial court and the
High Court and they found the accused guilty.
We cannot, however, close our eyes to the disturbing fact in the instant case where even the
injured witness, who was present on the spot, turned hostile. This Court in Sidhartha Vashisht
alias Manu Sharma v. State (NCT of Delhi) [(2010) 6 SCC 1: (AIR 2010 SC 2352: 2010
AIR SCW 4302)] and in Zahira Habibullah Shaikh v. State of Gujarat [AIR 2006 SC
1367] had highlighted the glaring defects in the system like non-recording of the statements
correctly by the police and the retraction of the statements by the prosecution witness due to
intimidation, inducement and other methods of manipulation. Courts, however, cannot shut their
61
eyes to the reality. If a witness becomes hostile to subvert the judicial process, the Courts shall not
stand as a mute spectator and every effort should be made to bring home the truth. Criminal
Judicial System cannot be overturned by those gullible witnesses who act under pressure,
inducement or intimidation. Further, Section 193 of the IPC imposes punishment for giving false
evidence but is seldom invoked.
(iii) S. 3 - Eye witness - Relationship of eye witness with deceased is no ground to
disbelieve him unless his testimony carries element of unfairness and undue
intention of false implication.
AIR 2012 SC 3046
Dayal Singh and Ors. Vs. State of Uttaranchal
Held: -
This Court has repeatedly held that an eye-witness version cannot be discarded by the Court
merely on the ground that such eye-witness happened to be a relation or friend of the deceased.
The concept of interested witness essentially must carry with it the element of unfairness and undue
intention to falsely implicate the accused. It is only when these elements are present, and statement
of the witness is unworthy of credence that the Court would examine the possibility of discarding
such statements. But where the presence of the eye-witnesses is proved to be natural and their
statements are nothing but truthful disclosure of actual facts leading to the occurrence and the
occurrence itself, it will not be permissible for the Court to discard the statements of such related
or friendly witness. The Court in the case of Dharnidhar v. State of Uttar Pradesh [(2010) 7
SCC 759 : (2010 AIR SCW 5685)] took the following view : (Para 8 of AIR SCW):
"12. There is no hard-and-fast rule that family members can never be true witnesses to
the occurrence and that they will always depose falsely before the court. It will always
depend upon the facts and circumstances of a given case. In Jayabalan v. UT of
Pondicherry (2010) 1 SCC 199 : (AIR 2010 SC (Supp) 352 : 2010 AIR SCW 419), this
Court had occasion to consider whether the evidence of interested witnesses can be relied
upon. The Court took the view that a pedantic approach cannot be applied while dealing
with the evidence of an interested witness. Such evidence cannot be ignored or thrown out
solely because it comes from a person closely related to the victim. The Court held as under:
(SCC p. 213, paras 23-24) : (Paras 21 and 22 of AIR, AIR SCW).
"23. We are of the considered view that in cases where the court is called upon to deal
with the evidence of the interested witnesses, the approach of the court, while appreciating
the evidence of such witnesses must not be pedantic. The court must be cautious in
appreciating and accepting the evidence given by the interested witnesses but the court must
not be suspicious of such evidence. The primary endeavour of the court must be to look for
consistency. The evidence of a witness cannot be ignored or thrown out solely because it
comes from the mouth of a person who is closely related to the victim.
24. From a perusal of the record, we find that the evidence of PWs 1 to 4 is clear and
62
categorical in reference to the frequent quarrels between the deceased and the appellant.
They have clearly and consistently supported the prosecution version with regard to the
beating and the ill-treatment meted out to the deceased by the appellant on several occasions
which compelled the deceased to leave the appellant's house and take shelter in her parental
house with an intention to live there permanently. PWs 1 to 4 have unequivocally stated that
the deceased feared threat to her life from the appellant. The aforesaid version narrated by
the prosecution witnesses viz. PWs 1 to 4 also finds corroboration from the facts stated in the
complaint."
13. Similar view was taken by this Court in Ram Bharosey v. State of U.P. (AIR
2010 SC 917 : 2009 AIR SCW 7220) AIR 1954 SC 704 (sic), where the Court stated the
dictum of law that a close relative of the deceased does not, per se, become an interested
witness. An interested witness is one who is interested in securing the conviction of a person
out of vengeance or enmity or due to disputes and deposes before the court only with that
intention and not to further the cause of justice. The law relating to appreciation of evidence
of an interested witness is well settled, according to which, the version of an interested
witness cannot be thrown overboard, but has to be examined carefully before accepting the
same."
(iv) S. 3 - Appreciation of evidence - Statement of witness not to be read in part or in
isolation. It has to be read alongwith statements of other witnesses to arrive at
reasonable conclusion.
AIR 2012 SC 3539
Shyamal Ghosh Vs. State of West Bengal
Held: -
Then, it was argued that there are certain discrepancies and contradictions in the statement of
the prosecution witnesses inasmuch as these witnesses have given different timing as to when they
had seen the scuffling and strangulation of the deceased by the accused. It is true that there is some
variation in the timing given by PW8, PW17 and PW19. Similarly, there is some variation in the
statement of PW7, PW9 and PW 11. Certain variations are also pointed out in the statements of
PW2, PW4 and PW6 as to the motive of the accused for commission of the crime. Undoubtedly,
some minor discrepancies or variations are traceable in the statements of these witnesses. But
what the Court has to see is whether these variations are material and affect the case of the
prosecution substantially. Every variation may not be enough to adversely affect the case of the
prosecution. The variations pointed out as regards the time of commission of the crime are quite
possible in the facts of the present case. Firstly, these witnesses are rickshaw pullers or illiterate or
not highly educated persons whose statements had been recorded by the Police. Their statements
in the Court were recorded after more than two years from the date of the incident. It will be
unreasonable to attach motive to the witnesses or term the variations of 15-20 minutes in the timing
of a particular event, as a material contradiction. It probably may not even be expected of these
witnesses to state these events with the relevant timing with great exactitude, in view of the
63
attendant circumstances and the manner in which the incident took place. To illustrate the
irrelevancy of these so called variations or contradictions, one can deal with the statements of
PW2, PW4 and PW6. PW4 and PW6 have stated that the deceased had constructed shops
along with his brother for the purpose of letting out and it was thereupon that the accused persons
started demanding a sum of 40,000/- from the deceased and had threatened him of dire
consequences, if their demand was not satisfied. PW2 has made a similar statement. However, he
has stated that Uttam Das and the accused persons had threatened the deceased that if the said
money was not paid, they would not allow the deceased to enjoy and use the said shops built by
him. This can hardly be stated to be a contradiction much less a material contradiction. According
to the Witnesses, two kinds of dire consequences were stated to follow, if the demand for payment
of money made by the accused was not satisfied. According to PW4 and PW6, they had
threatened to kill the deceased while according to PW2, the accused had threatened that they
would not permit the accused to enjoy the said property. Statements of all these witnesses clearly
show one motive, i.e., illegal demand of money coupled with the warning of dire consequences to
the deceased in case of default. In our view, this is not a contradiction but are statements made
bona fide with reference to the conduct of the accused in relation to the property built by the
deceased and his brother. It is a settled principle of law that the Court should examine the
statement of a witness in its entirety and read the said statement along with the statement of other
witnesses in order to arrive at a rational conclusion. No statement of a witness can be read in part
and/or in isolation. We are unable to see any material or serious contradiction in the statement of
these witnesses which may give any advantage to the accused.
(v) S. 8 - Motive - Assumes significance in case based on circumstantial evidence for reason
that absence of motive would put court on its guard and cause it to scrutinize each
piece of evidence very closely in order to ensure that suspicion, emotion or
conjecture do not take place of proof.
2012 CRI. L.J. 4657
Dr. Sunil Clifford Daniel Vs. State of Punjab
Held: -
In a case of circumstantial evidence, motive assumes great significance and importance, for
the reason that the absence of motive would put the court on its guard and cause it to scrutinize
each piece of evidence very closely in order to ensure that suspicion, emotion or conjecture do not
take the place of proof.
(vi) S. 134 - Number of witnesses - Where there were several persons stated to have
witnessed incident and prosecution examined those witnesses who were able
to depose more accurately leaving no room for doubt about involvement of
accused in occurrence, it was wholly irrelevant and unnecessary to multiply
number of witnesses to repeat same version.
(2012) 9 SCC 432
64
Avtar Singh Vs. State of Haryana
Held: -
The learned counsel further submitted that though the prosecution would claim injuries on
several persons of the complainant party, the other persons who were stated to have been injured
or were present at the place of occurrence were not examined. In this context, it will be relevant to
refer to the decision of this Court reported in Tej Prakash v. State of Haryana wherein this Court
held that all the witnesses of the prosecution may not be called and it is sufficient if witnesses who
were essential to the unfolding of the narrative on which the prosecution is based must be called by
the prosecution. The legal position has been stated in para 18 as under: (SCC p. 330)
"18. In of his contention that serious prejudice was caused to the appellant by non-
examination of Phool Singh who had been cited by the prosecution as one of the witness, Mr.
Ganesh relied upon Stephen Seneviratne v. R., Habeeb Mohammad v. State of Hyderabad
and State of U.P. v. Jaggo. The aforesaid decisions can be of little assistance to the
appellant in the present case. What was held by the Privy Council and this Court was that
witnesses who were essential to the unfolding of the narrative on which the prosecution is
based must be called by the prosecution whether the effect of their testimony is for or against
the case for the prosecution and that failure to examine such a witness might affect a fair trial.
It was also observed that all the witnesses of the prosecution need not be called. In the
present case, the witnesses who were essential to the unfolding of the narrative had been
examined."
The law on this aspect can be succinctly stated to the effect that in order to prove the guilt of
the accused, the prosecution should make earnest effort to place the material evidence both oral
and documentary which satisfactorily and truthfully demonstrate and fully support the case of the
prosecution. Where there were several persons stated to have witnessed the incident and the
prosecution examined those witnesses who were able to depose the nature of offence committed
more accurately leaving no room for doubt about the involvement of the accused in the occurrence
and the extent of their involvement with specific overt act and also were able to withstand the
cross-examination by maintaining the sequence and the part played as originally stated, it will be
wholly irrelevant and unnecessary to multiply the number of witnesses to repeat the same version.
6. Specific Relief Act, 1963
(i) S. 6 - Possession of Immovable property - In a suit under S. 6 only question that has to
be determined by Court is whether plaintiff was in possession of disputed property
and he had been illegally dispossessed there from on any date within six months
prior to filling of suit. An unsuccessful litigant in a suit u/s 6 would have option of
filing a fresh suit for recovery of possession on the basis of title.
2012 (4) BLJ SC 86
I.T.C. Limited Vs. Adarsh Coop. Housing Soc. Ltd.
Held: -
65
Section 6 of the Specific Relief Act, 1963 under which provision of law the suit in question
was filed by the plaintiff-respondent is pari-materia with Section 9of the Act of 1877. A bare
reading of the provisions contained in Section 6 of the Act of 1963 would go to show that a person
who has been illegally dispossessed of his immovable property may himself or through any person
claiming through him recover such possession by filing a suit. In such a suit, the entitlement of the
plaintiff to recover possession of property from which he claims to have been illegally dispossessed
has to be adjudicated independently of the question of title that may be set up by the defendant in
such a suit. In fact, in a suit under Section 6, the only question that has to be determined by the
Court is whether the plaintiff was in possession of the disputed property and he had been illegally
dispossessed therefrom on any date within six months prior to the filing of the suit. This is because
Section 6(2) prescribes a period of six months from the date of dispossession as the outer limit for
filing of a suit. As the question of possession and illegal dispossession therefrom is the only issue
germane to a suit under Section 6, a proceeding thereunder, naturally, would partake the character
of a summary proceeding against which the remedy by way of appeal or review has been
specifically excluded by sub-section 3 of Section 6. Sub-section 4 also makes it clear that an
unsuccessful litigant in a suit under Section 6 would have the option of filing a fresh suit for recovery
of possession on the basis of title, if any. In fact, the above view has found expression in several
pronouncements of this Court of which reference may be made to the decisions in Lallu
Yashwant Singh (dead) by his LRs. Vs. Rao Jagdish Singh & Ors., AIR 1968 SC 620,
Krishna Ram Mahale (D) by LRs vs. Mrs. Shobha Venkat Rao, AIR 1989 SC 2097 and
Sanjay Kumar Pandey & Ors. Vs. Gulabahar Sheikh & Ors., SCC 2004(4) 664. In fact,
para 4 of this Court's judgment passed in Sanjay Kumar Pandey (supra) may be a useful
reiteration of the law in this regard. The same is, therefore, extracted hereinbelow:--
"4. "A suit under Section 6of the Act is often called a summary suit inasmuch as the
enquiry in the suit under Section 6 is confined to finding out the possession and dispossession
within a period of six months from the date of the institution of the suit ignoring the question of
title. Sub-section (3) of Section 6 provides that no appeal shall lie from any order or decree
passed in any suit instituted under this section. No review of any such order or decree is
permitted. The remedy of a person unsuccessful in a suit under Section 6 of the Act is to file
a regular suit establishing his title to the suit property and in the event of his succeeding he will
be entitled to recover possession of the property notwithstanding the adverse decision under
Section 6 of the Act. Thus, as against a decision under Section 6 of the Act, the remedy of
unsuccessful party is to file a suit based on title. The remedy of filing a revision is available but that
is only by way of an exception; for the High Court would not interfere with a decree or order under
Section 6 of the Act except on a case for interference being made out within the well-settled
parameters of the exercise of revisional jurisdiction under Section 115 of the Code."
(ii) S. 34 -Challenge to Sale deed - Plaintiff are not in possession of suit property. When title
did not pass to plaintiff, they cannot be allowed to challenge legality of cancellation
deed. Even if cancellation itself is illegal then also title will not pass on them-
Appeal dismissed.
66
2012 (4) BLJ PHC 165
Sri Ram Lal Mandal & Ors. Vs. Sri Satya Narayan Mandal & Ors.
Held: -
From perusal of the lower appellate Court Judgment, it appears that after considering the
materials available on record, the lower appellate Court has categorically recorded that Rs.
18,000/- was not paid. It is admitted by the appellant that chirkut i.e., receipt of registered sale
deed and registered sale deed was not in possession of the plaintiff. Both the Courts below
recorded a finding that the plaintiffs are not in possession of the suit property.
In the case of Janak Dulari Devi vs. Kapildeo Rai, 2011 (6) S.C.C.555, the Apex Court
considering the case of similar nature held that "as per practice of ta khubzul badlain prevalent in
Bihar (that is, title to the property passing to the purchaser only when there is exchange of
equivalents), where a sale deed recites that the entire sale consideration has been paid and
possession has been delivered, but the registration receipt is retained by the vendor and possession
of the property is also retained by the vendor, as the agreed consideration (either full or a part) is
not received, irrespective of the recitals in the sale deed the title would not pass to the purchaser,
till payment of the entire consideration to the vendor and the registration receipt is obtained by the
purchaser in exchange. In such cases, on the sale deed being executed and registered, the
registration receipt (which is issued by the Sub-Registrar) authorizing the holder thereof to receive
the registered sale deed on completion of the registration formalities, is received and retained by
the vendor and is not given to the purchaser. The vendor who holds the registration receipt will
either receive the registered document and keep the original sale deed in his custody or may keep
the registration receipt without exchanging it for the registered document from the sub-Registrar,
till payment of consideration is made. When the purchaser pays the price (that is, the whole price
or part that is due) on or before the agreed date, he receives in exchange, the registration receipt
from the vendor entitling him to receive the original registered sale deed, as also the possession. If
the payment is not made as agreed, the vendor could repudiate the sale and refuse to deliver the
registration receipt/registered document, as the case may be, which is in his custody, and proceed
to deal with the property as he deems fit, by ignoring the rescinded sale.
The effect of such transactions in Bihar is that even though the duly executed and registered
sale deed may recite that the sale consideration has been paid, title has been transferred and
possession has been delivered to the purchaser, the actual transfer of title and delivery of
possession is postponed from the time of execution of the sale deed to the time of exchange of the
registration receipt for the consideration, that is, ta khubzul badlain.
The practice of a ta khubzul badlain (of title passing on exchange of equivalents) is prevalent
only in Bihar. Normally, the recitals in a sale deed abut transfer of title, receipt of consideration and
delivery of possession will be evidence of such acts and events; and on the execution and
registration of the sale deed, the sale would be complete even if the sale price was not paid, and it
will not be possible to cancel the sale deed unilaterally. The practice of ta khubzul badlain in Bihar
recognizes that a duly executed sale deed will not operate as a transfer in praesenti but postpones
67
the actual transfer of title, from the time of execution and registration of the deed, to the time of
exchange of equivalents, that is, registration receipt and the sale consideration, if the intention of
the parties was that title would pass only on payment of entire sale consideration."
As has been stated above in the present case from the facts and circumstances of the case,
admittedly, the vendor did not hand over the registration receipt nor hand over possession of the
property and the case of the plaintiff that entire amount has been paid has been found to be false,
therefore, in my opinion, the lower appellate Court has rightly found that title did not pass on the
plaintiff.
So far unilateral cancellation of the sale deeds are concerned, it can very well be said that
when title did not pass to the plaintiff, they cannot be allowed to say or challenge the legality or
otherwise of the cancellation deed. Even if it is held that cancellation itself are illegal then also title
will not pass on them.
In view of my above discussion and the law laid down by the Apex Court, in my opinion, the
points raised by the learned counsel for the appellant has already been answered by the Apex
Court. Therefore, the substantial question of law as alleged by the appellant is not at all a
substantial question of law as the same has already been settled by the Apex Court. Therefore, I
find no substantial question of law involved in this second appeal and accordingly, this second
appeal is dismissed.
7. Juvenile Justice Act, 1986
(i) (a) Preamble and statement of objects and Reasons - Purpose of enactment of the Act,
restated.
(b) Rule 12 of Juvenile Justice (Care and Protection of Children) Rules, 2007 -
Juvenility - Post Conviction claim - Material to prima facie establish necessity of
inquiry into juvenility claim. Onus to produce, and evidentiary value of various types
of documents. Manner of appreciation of evidence and standard of proof.
(2012) 10 SCC 489
Abuzar Hossain @ Gulam Hossain Vs. State of West Bengal
Held: -
Parliament felt it necessary that uniform juvenile justice system should be available throughout
the country which should make adequate provision for dealing with all aspects in the changing
social, cultural and economic situation in the country and there was also need for larger involvement
of informal systems and community based welfare agencies in the care, protection, treatment,
development and rehabilitation of such juveniles and with these objectives in mind, it enacted the
Juvenile Act, 1986 (for short "the 1986 Act").
The 1986 Act was replaced by the Juvenile Justice (Care and Protection of Children) Act,
2000 (for short "the 2000 Act"). The 2000 Act has been enacted to carry forward the constitutional
philosophy engrafted in Articles 15(3), 39(e) & (f), 45 and 47 of the Constitution and also
68
incorporate the standards prescribed in the Convention on the Rights of the Child, United Nations
Standard Minimum Rules for the Administration of Juvenile Justice, 1985, the United Nations
Rules for the Protection of Juveniles Deprived of their Liberty (1990) and all other relevant
international instruments.
In Pawan a three-Judge Bench has laid down the standards for evaluating the claim of
juvenility raised for the first time before this Court. If Pawan had been cited before the Bench when
the criminal appeal of Abuzar Hossain alias Gulam Hossain came up for hearing perhaps reference
would not have been made. Be that as it may, in the light of the discussion made above, we intend
to summarise the legal position with regard to Section 7-A of the 2000 Act and Rule 12 of the
2007 Rules. But before we do that, we say a word about the argument raised on behalf of the
State of Bihar that claim juvenility cannot be raised before this Court after disposal of the case. The
argument is so hopeless that it deserves no discussion. The expression "any court" in Section 7-A
is too wide and comprehensive; it includes this Court. The Supreme Court Rules surely do not limit
the operation of Section 7-A to the courts other than this Court where the plea of juvenility is
raised for the first time after the disposal of the case.
Now, we summarise the position which is as under:
A claim of juvenility may be raised at any stage even after the final disposal of the case. It may
be raised for the first time before this Court as well after the final disposal of the case. The delay in
raising the claim of juvenility cannot be a ground for rejection of such claim. The claim of juvenility
can be raised in appeal even if not pressed before the trial court and can be raised for the first time
before this Court though not pressed before the trial court and in the appeal court.
For making a claim with regard to juvenility after conviction, the claimant must produce some
material which may prima facie satisfy the court that an inquiry into the claim of juvenility is
necessary. Initial burden has to be discharged by the person who claims juvenility.
As to what materials would prima facie satisfy the court and/or are sufficient for discharging
the initial burden cannot be catalogued nor can it be laid down as to what weight should be given
to a specific piece of evidence which may be sufficient to raise presumption of juvenility but the
documents referred to in Rules 12(3)(a)(i)to (iii) shall definitely be sufficient for prima facie
satisfaction of the court about the age of the delinquent necessitating further enquiry under Rule 12.
The statement recorded under Section 313 of the Code is too tentative and may not by itself be
sufficient ordinarily to justify or reject the claim of juvenility. The credibility and/or acceptability of
the documents like the school leaving certificate or the voters' list, etc. obtained after conviction
would depend on the facts and circumstances of each case and no hard-and-fast rule can be
prescribed that they must be prima facie accepted or rejected. In Akbar Sheikh and Pawan these
documents were not found prima facie credible while in Jitendra Singh the documents viz. school
leaving certificate, marksheet and the medical report were treated sufficient for directing an inquiry
and verification of the appellant's age. If such documents prima facie inspire confidence of the
court, the court may act upon such documents for the purposes of Section 7-A and order an
enquiry for determination of the age of the delinquent.
69
An affidavit of the claimant or any of the parents or a sibling or a relative in support of the
claim of juvenility raised for the first time in appeal or revision or before this Court during the
pendency of the matter or after disposal of the case shall not be sufficient justifying an enquiry to
determine the age of such person unless the circumstances of the case are so glaring that satisfy the
judicial conscience of the court to order an enquiry into determination of the age of the delinquent.
The court where the plea of juvenility is raised for the first time should always be guided by
the objectives of the 2000 Act and be alive to the position that the beneficent and salutary
provisions contained in the 2000 Act are not defeated by the hypertechnical approach and the
persons who are entitled to get benefits of the 2000 Act get such benefits. The courts should not be
unnecessarily influenced by any general impression that in schools the parents/guardians understate
the age of their wards by one or two years for future benefits or that age determination by medical
examination is not very precise. The matter should be considered prima facie on the touchstone of
preponderance of probability.
Claim of juvenility lacking in credibility or frivolous claim of juvenility or patently absurd or
inherently improbable claim of juvenility must be rejected by the court at the threshold whenever
raised.
COMPILED BY
SRI S.K. JHA
(DY. DIRECTOR, BJA)
rrr
70
PART III Latest Acts and Amendments
The Bihar Land Disputes Resolution
(Amendment) Act, 2012
[Bihar Act 15, 2012]1
An Act to Amend The Bihar Land Disputes Resolution Act, 2009
Be it enacted by the Legislature of the State of Bihar in the sixty third year of Republic
of India as follows:—
1. Short title, extent and commencement.—(1) This Act may be called The Bihar Land
Disputes Resolution (Amendment) Act, 2012.
(2) It shall extend to the whole of the State of Bihar.
(3) It shall come into force at once.
2. Amendment of Section-15 of The Bihar Land Disputes Resolution Act, 2009.—(1)
After the title of Section 15 "Execution of the order passed by the Competent Authority" the
existing provision shall be numbered as sub-section "(1)".
(2) After the existing provision of Section 15, the following new Sub-Sections (2), (3),
(4), (5), (6) and (7) shall be added:—
"(2) In case of unauthorized and unlawful dispossession of any settlee/allottee under any
Act contained in the schedule-1 of the Act or of any owner of raiyati land, the Competent
Authority shall execute his order passed under this Act by deputing a Revenue Officer under
his jurisdiction and directing the Officer-In-charge of the concerned police station to depute
a police officer with adequate police force.
(3) In case there is sufficient apprehension that the settlee/allottee of any land under any
Act contained in schedule-1 of the Act or owner of any raiyati land may be dispossessed of
his land, the Competent Authority may pass an appropriate order and shall execute his order
by requesting the concerned Sub-Divisional Magistrate/Executive Magistrate/Officer- In-
Charge of the concerned police station to take preventive actions under the relevant sections
of Criminal Procedure Code.
(4) In case of partition of land holding, the Competent Authority shall execute his order
passed under this Act by getting the land measured and demarcated by Amin as per his order
under prior intimation in prescribed form about the date and time of measurement and
demarcation to co-sharers and by getting the Takhtabandi (apportionment of the specific
shares of the co-sharers) of the co-sharers prepared. The Competent Authority shall invite
1. Published in Bihar Gazette (Ex. ord.) No. 443, dated 30th August, 2012.
71
objections from co-sharers against the Takhtabandi and upon hearing of the objections shall
finalise the Takhtabandi and shall deliver possession of land to co-sharers in accordance
with their Takhta (specific share). In case, it is not possible to measure or demarcate the land
or to deliver the possession without the use of force then he shall depute a Revenue Officer
under his jurisdiction and direct the Officer-In-charge of the concerned police station to
depute a police officer with adequate police force and get his order executed.
(5) In case of declaration of right of a person with respect to any land, the Competent
Authority shall execute his order passed under this Act by directing the revenue authorities
concerned to make necessary amendment in revenue records concerned including inter alia
the continuous record of rights, tenants ledger register and khesra register reflecting the right
of the person as per his order.
(6) In case of boundary dispute, the Competent Authority may execute his order
passed under this Act, by getting the boundaries of the concerned plot or a part thereof
measured and demarcated by Amin, as per his order, with prior intimation in prescribed form
to all land holders having common boundaries, by way of notice indicating date and time of
measurement and demarcation, but in case it is not possible without the use of force then he
shall depute a Revenue Officer under his jurisdiction and direct the Officer-Incharge of the
concerned police station to depute a police officer with adequate police force and get his
order executed.
(7) (a) In case of unauthorized structure, the Competent Authority shall execute his
order passed under this Act by directing the person responsible for such unauthorized
structure through a notice in prescribed form to remove such structure within 30 days of the
receipt of the order.
(b) In case the person against whom a notice is made under Clause-(a) fails to remove
the structure after the lapse of the 30 days period of notice, the Competent Authority shall
issue a second notice in prescribed form directing him to remove such a structure within 15
days of the receipt of the notice failing which the structure shall be impounded or the structure
shall be removed at his cost.
(c) In case the structure is not removed after the lapse of 15 days period of the notice
under the Clause-(b), the Competent Authority shall impound the structure or remove it as he
deems fit but in case of removal, the cost of the removal shall be realized from the person
against whom the notice has been issued under the provisions of the Bihar and Orissa Public
Demands Recovery Act, 1914."
rrr
72
The Bihar Maintenance & Welfare of Parents & Senior
Citizens Rules, 2012]1
Department of Social welfare Directorate of Social Security and Disability)
Notification No. 1/Sa.su.-vividh-22/09.S.W-1935, dated 7th September, 2012.—In exercise
of the powers conferred by Section 32 of the Maintenance and Welfare of Parents and Senior
Citizens Act, 2007 (Central Act 56 of 2007), the Government of Bihar hereby makes the following
Rules:—
Preliminary
1. Short title extent and commencement.—(1)These Rules may be called the Bihar
Maintenance and Welfare of Parents and Senior Citizens Rules, 2012.
(2) It shall extend to the whole of the state of Bihar.
(3) It shall come into force at once.
2. Definitions.—(1) In these Rules, unless the context otherwise requires:
(a) “Act” means the Maintenance and Welfare of Parents and Senior Citizens Act, 2007
(Central Act 56 of 2007);
(b) “application” means an application made to a Tribunal under Section 5 of the Act;
(c) “blood relations”, in the context of a male and a female inmate, mean father-
daughter, mother-son and brother-sister (not cousins);
(d) “Form” means a form appended to these Rules;
(e) “Government” means the Government of Bihar.
(f) “inmate”, in relation to an old age home, means a senior citizen duly admitted to
reside in such a home;
(g) “Maintenance officer” means the officer designated under sub-section (1) of
Section 18, filed under Section 4, of the Act.
(h) “opposite party” means the party against whom an application for maintenance has
been filed under Section 4;
(i) “Presiding Officer” means an officer appointed to preside over a Maintenance
Tribunal referred to under sub-section (2) of Section 7, or an Appellate Tribunal
under sub-section (2) of Section 15 of the Act;
(j) “Schedule” means a schedule appended to these Rules;
(k) “Section” means a Section of the Act;
1. Published in Bihar Gazette (Ex. ord.) No. 471, dated 12th September, 2012.
73
(l) “Tribunal” means maintenance tribunal constituted under Section 7 of the Act.
(m) “Senior Citizen Poor” means define by the state government and instruction issued
from government time to time .
(2) Words and expressions used and not defined in these Rules but defined in the Act shall
have the meaning respectively assigned to them in the Act.
CHAPTER II
Procedure for Maintenance Tribunal and Conciliation Officers
3. Constitution of Maintenance Tribunal.—The government shall, by notification in the
official gazette, constitute maintenance tribunal in each sub division under Section 7(1) of the Act.
4. Panel for Appointment as Conciliation Officer.—(1) Every Tribunal shall prepare a
panel of persons suitable for appointment as Conciliation Officer under sub-section (6) of Section
6, which shall include the Maintenance Officers designated under Section 18.
(2) Persons referred to under sub-rule (1), other than Maintenance Officers designated
under Section 18, shall be chosen subject to fulfilling the following conditions, namely:
(a) he should be associated with an organization which is working for the welfare of
senior citizens and/or weaker Sections, or in the area of education, health, poverty-
alleviation, women’s empowerment, social welfare, rural development or related
fields, for at least two years with an unblemished record of service;
(b) he should be a senior office-bearer of the organization; and
(c) he should possess good knowledge of law.
Provided that a person who is not associated with an organization of the kind
mentioned above, may also be included in the panel mentioned in sub-rule (1) if he
fulfills the following conditions namely:
(i) he has a good and unblemished record of public service in one or more of the
areas mentioned in clause (a); and
(ii) he possess good knowledge of law.
(3) The Tribunal shall publish the panel mentioned in sub-rule (1) for general information at
least twice every year, on 1st January and 1st July, respectively, and every, time any change is
effected therein.
(4) Conciliation Officer can be appointed by the state government.
(5) The tenure of Conciliation Officer will be three years from date of appointment.
5. Procedure for filing an application for maintenance, and Its registration.—(1) An
application for maintenance under Section 4 shall be made in Form 'A', in the manner laid down in
clauses (a) and (b) of sub-section (1) of Section 5.
74
(2) On receipt of an application under sub-rule (1), the Presiding Officer shall cause:
(a) Its essential details to be entered in a Register of Maintenance Claim Cases, to be
maintained as in Annexure - I, and
(b) Its acknowledgement in Form ‘B’ to be given notwithstanding anything contained in
Rule 5, to the applicant or his authorized representative. In case of hand delivery, and
its dispatch by post in other cases and the acknowledgement shall specify, inter-alia,
the registration number of the application.
(3) Where a Tribunal takes cognizance of a maintenance claim, suo motu, the Presiding
Officer shall, after ascertaining facts, get Form ‘A’ completed as accurately as possible, through
the staff of the Tribunal, and shall, as far as possible, get it authenticated by the concerned senior
citizen or parent, or any person or organization authorized by him and shall cause the same to be
registered in accordance with clause (a) of sub-rule (2) above.
6. Preliminary Scrutiny of the application.—(1) On receipt of an application under sub-
section (1) of Section 5, the Tribunal shall satisfy itself that:
(a) The application is complete; and
(b) The opposite party has, prima facie, an obligation to maintain the applicant in terms
of Section 4.
(2) In case where the Tribunal finds any lacunae in the application, it may direct the applicant
to rectify such lacunae within a reasonable time limit.
(3) Every application shall be heard and decided, within a reasonable time limit.
7. Notice to the Opposite Party.—(1) Once the Tribunal is satisfied on the points
mentioned in sub-rule (1) of Rule 5, it shall cause to be issued to each person against whom an
application for maintenance has been filed, a notice in Form ‘C’ directing them to show cause why
the application should not be granted, along with a copy of the application and its enclosures, in the
following manner:
(a) by hand delivery (Dasti) through the applicant if he so desires, else through a process
server; or
(b) by registered post with acknowledgement due.
(2) The notice shall require the opposite party to appear in person, on the date to be
specified in the notice and to show cause, in writing, as to why the application should not be
granted and shall also inform that, in case he fails to respond to it, the Tribunal shall proceed ex
parte.
(3) Simultaneously with the issue of notice under sub-rules (1) and (2), the applicants (s) shall
also be informed of the date mentioned in sub-rule (2), by a notice issued in Form ‘D’.
75
(4) The provisions of Order V of the Code of Civil Procedure, 1908, shall apply, mutatis
mutandis, for the purpose of service of notice under sub-rules (2) and (3).
(5) The Tribunal shall have all the powers of a Civil Court for the purpose of taking evidence
on oath and of enforcing the attendance of witnesses of compelling the discovery and production
of documents and material objects and for such other purposes as may be prescribed; and the
Tribunal shall be deemed to be a Civil Court for all the purposes of Section 195 and Chapter
XXVI of the Code of Criminal Procedure, 1973.
8. Procedure in case of the non-appearance by the Opposite Party.—In case, despite
service of notice, the opposite party fails to show cause in response to a notice, the Tribunal shall
proceed ex parte, by taking evidence of the applicant and making such other inquiry as it deems
fit, and shall pass an order disposing of the application.
9. Procedure in case of admission of claim.—In case, on the date fixed in the notice
issued under Rule 6, the opposite party appears and accepts his liability to maintain the applicant,
and the two parties arrive at a mutually agreed settlement, the Tribunal shall pass an Order
accordingly.
10. Procedure for impleading children or relatives.—(1) An application by the opposite
party, under the proviso to sub-section (5) of Section 5, to implead any other child or relative of
the applicant shall be filed on the first date of hearing as specified in the notice issued under sub-
rule (2) of Rule 6:
Provided that no such application shall be entertained after such first hearing, unless the
opposite party shows sufficient cause for filling it at later stage.
(2) On receipt of an application under sub-rule (1), the Tribunal shall, if it is prima facie
satisfied, after hearing the parties, about the reasonableness of such application, issue notice to
such other child or relative to show cause why they should not be impleaded as a party, and shall
after giving them an opportunity of being heard, pass an order regarding their impleadment or
otherwise.
(3) In case the Tribunal passes an order of impleadment under sub-rule (2), it shall cause a
notice to be issued to such impleadment party in Form “C” in accordance with Rule 6.
11. Reference to Conciliation Officer.—(1) In case, on the date fixed in the notice issued
under Rule 6, the opposite party appears and shows cause against the maintenance claim, the
Tribunal shall seek the opinion of both the parties as to whether they Tribunal shall seek the opinion
of both the parties as to whether they like the matter to be referred to a Conciliation Officer and if
they express their willingness in this behalf, the Tribunal shall ask them whether they would like the
matter to be referred to a person included in the panel prepared under Rule 3, or to any other
person acceptable to both parties.
(2) If both the parties agree on any person, whether included in the panel under Rule 3 or
76
otherwise, the Tribunal shall appoint such person as the Conciliation Officer in the case, and shall
refer the matter to him, through a letter in Form ‘E’, requesting the Conciliation Officer to try and
work out a settlement acceptable to both parties, within a period not exceeding one month from
the date of receipt of the reference.
(3) The reference in Form ‘E’ shall be accompanied with copies of the application and
replies of the opposite party thereto.
12. Duties of Conciliation Officer.—(1) Upon receipt of a reference under Rule 10, the
Conciliation Officer shall hold meetings with the two parties as necessary, and shall try to work out
a settlement acceptable to both the parties, within a period of one month from the date of receipt
of the reference.
(2) If the Conciliation Officer succeeds in working out a settlement acceptable to both the
parties, he shall draw up a memorandum of settlement in Form ‘F’, get it signed by both parties,
and forward it, with a report in Form ‘G’, along with all records of the case received from the
Tribunal, back to the Tribunal within a month from the receipt of the reference.
(3) If the Conciliation Officer is unable to arrive at a settlement within one month of receipt of
a reference under Rule (12), he shall return the papers received from the Tribunal along with a
report in Form ‘H’, showing efforts made to bring about a settlement and the points of difference
between the two parties which could not be reconciled.
(4) Maintenance of Register–The Conciliation Officer shall maintain a detailed list of
voluntary organizations as per Schedule II which will contain arrangements for security and
services for older persons. The Conciliation Officer shall be responsible for inspection/monitoring
and data collection from old age homes operated by persons/group of persons/voluntary
organizations/institutions/ donor agencies/others.
13. Action by the Tribunal in case of settlement before a Conciliation Officer.—(1) In
case, the Tribunal receives a report from the Conciliation Officer under sub-rule (2) of Rule 11,
along with a memorandum of settlement, it shall give notice to both parties to appear before it on
a date to be specified in the notice, and confirm the settlement.
(2) In case on the date specified in the notice as above, the parties appear before the Tribunal
and confirm the settlement arrived at before the Conciliation Officer, the Tribunal shall pass a final
order as agreed in such settlement.
14. Action by the Tribunal in other cases.—(1) In case,
(i) the applicant(s) and the opposite parties do not agree for reference of their dispute to
a Conciliation Officer as per Rule 10, or
(ii) the Conciliation Officer appointed under Rule 10 sends a report under sub-rule (3) of
Rule 11, conveying inability to work out a settlement acceptable to both the parties,
or
77
(iii) no report is received from a Conciliation Officer within the stipulated timelimit of one
month, or
(iv) in response to the notice issued under sub-rule (1) of Rule 12, one or both the parties
decline to confirm the settlement worked out by the Conciliation Officer,
the Tribunal shall give to both the parties an opportunity of leading evidence in support of their
respective claims, and shall, after a summary inquiry as provided in sub-Section (1) of Section 8,
pass such order as it deems fit.
(2) An order passed under Rule 7, Rule 8 or under sub-rule (1) above shall be a speaking
one, spelling out the facts of the case as ascertained by the Tribunal, and the reasons for the order.
(3) While passing an order under sub-rule (1), directing the opposite party to pay maintenance
to an applicant, Tribunal shall take the following into consideration:
(a) amount needed by the applicant to meet his basic needs, especially food, clothing,
accommodation, and healthcare,
(b) income of the opposite party, and
(c) Value of and actual and potential income from the property, if any, of the applicant
which the opposite party would inherit and/or is in possession of.
(4) A copy of every order passed, whether final or interim, on an application, shall be given to
the applicant (s) and the opposite party or their representatives, in person, or shall be sent to them
through a process server or by registered post.
15. Maximum maintenance allowance.—The maximum maintenance allowance which a
Tribunal may order the opposite party to pay shall, subject to a maximum of rupees ten thousand
per month, be fixed in such a manner that it does not exceed the monthly income from all sources
of the opposite party, divided by the number of persons in his family, counting the applicant or
applicants and also among the Opposite party's family members.
CHAPTER III
Constitution of Appellate Tribunal and Related Procedures
16. Establishment and Procedure of Appellate Tribunal.—The Government shall, by
notification in the Official Gazette, constitute for each District one Appellate Tribunal as may be
specified in the notification to hear the appeal against the order of Tribunal under Section 15 (1) of
the Act.
17. Form of appeal.—An appeal under sub-section (1) of Section 16 shall be filed before
the appellate Tribunal in Form ‘I’, and shall be accompanied by a copy of the impugned order of
the Maintenance Tribunal.
18. Registration and acknowledgement of appeal.—On receipt of an appeal, the
Appellate Tribunal shall register it in a register to be maintained for the purpose in such form as the
78
State Government may direct, and shall, after registering such appeal, give an acknowledgement
to the appellant, specifying the appeal number and the next date of hearing, in Form ‘J’.
19. Notice of hearing to the respondent.—(1) On receipt of an appeal, the Appellate
Tribunal shall, after registering the case and assigning an appeal number, cause notice to be served
upon the respondent under its seal and signature in Form ‘K’.
(2) The notice under sub-rule (1) shall be issued through registered post with acknowledgement
due, or through a process server.
(3) The provisions of Order V of the Civil Procedure Code shall apply mutatis mutandis for
the purposes of service of notice issued under sub-rule (1).
CHAPTER IV
Scheme for Management of Old Age Homes Established under Section 19
20. Scheme for management of old age homes for indigent senior citizens.—(1) Old
age homes established under Section 19 shall be run in accordance with the following norms and
standards:
(A) The home shall have physical facilities and shall be run in accordance with the
operational norms as laid down in the Schedule III.
(B) Inmates of the home shall be selected in accordance with the following procedure:
[a] applications shall be invited at appropriate intervals, but at least once each year,
from indigent senior citizens, as defined in Section 19 of the Act, desirous of living
in the home;
[b] in case the number of eligible applicants on any occasion is more than the number
of places available in a home for admission, selection of inmates will be made in
the following manner:
(i) the more indigent and needy will be given preference over the less
indigent applicants,
(ii) other things being equal, older senior citizens will be given preference
over the less old, and
(iii) other things being equal, female applicants will be given preference
over male applicants.
Illiterate and/or very infirm senior citizens may also be admitted without any
formal application if the competent authority, is satisfied that the senior citizen is not in
a position to make a formal application, but is badly in need of shelter;
(C) While considering applications or cases for admission, no distinction shall be made on
the basis of religion or caste;
79
(D) The home shall provide separate lodging for men and women inmates, unless a male
and a female inmate are either blood relations or a married couple;
(E) Day-to-day affairs of the old age home shall be managed by a Management Committee,
such that inmates are also suitably represented on the Committee.
(2) State Government may issue detailed guidelines/orders from time to time for admission
into and management of old age homes in accordance with the norms and standards laid down in
sub-rule (1) and the Schedule.
(3) State Government may form implementation committee at district level for management
of day to day affaires of Old Age Home
(4) Visitors will be allowed in the old age homes up on prior permission of the home
management within prescribed hours, keeping in mind the security and welfare of the inmates.
(5) Under Section 19(2) and other relevant Sections the State Government/department will
start and published integrated schemes and appropriate guide line for senior citizens.
CHAPTER V
Duties and Powers of the District Magistrate
21. Duties and powers of the District Magistrate.—(1)The District Magistrate shall
perform the duties and exercise the powers mentioned in sub-rule (2) and (3) so as to ensure that
the provisions of the Act are properly carried out in his district.
(2) It shall be the duty of the District Magistrate to:
(i) ensure that life and property of senior citizens of the district are protected and they are
able to live with security and dignity;
(ii) oversee and monitor the work of Maintenance Tribunals and Maintenance Officers of
the district with a view to ensuring timely and fair disposal of applications for
maintenance, and execution of Tribunals’ orders;
(iii) oversee and monitor the working of old age homes in the district so as to ensure that
they conform to the standards laid down in these Rules, and any other guidelines and
orders of the Government;
(iv) ensure regular and wide publicity of the provisions of the Act, and Central and State
Governments’ programmes for the welfare of senior citizens;
(v) encourage and coordinate with panchayats, municipalities, Nehru Yuva Kendras,
educational institutions and especially their National Service Scheme Units,
organizations, specialists, experts, activists, etc. working in the district so that their
resources and efforts are effectively pooled for the welfare of senior citizens of the
district;
80
(vi) ensure provision of timely assistance and relief to senior citizens in the event of natural
calamities and other emergencies;
(vii) ensure periodic sensitization of officers of various Departments and Local Bodies
concerned with welfare of senior citizens, towards the needs of such citizens, and the
duty of the officers towards the latter;
(viii) review the progress of investigation and trial of cases relating to senior citizens in the
district, except in cities having a Police Commissioner;
(ix) ensure that adequate number of prescribed application forms for maintenance are
available in offices of common contact for citizens like Panchayats, Block Development
Offices, Tahsildar offices, District Social Welfare Offices, Collectorate, Police Stations
etc;
(x) promote establishment of dedicated Help lines for senior citizens at district
headquarters, to begin with; and
(xi) perform such other function as the Government, may by order, assign to the District
Magistrate in this behalf, from time to time.
(3) With a view to performing the duties mentioned in sub-rule(2), the District Magistrate
shall be competent to issue such directions, not inconsistent with the Act, these Rules, and general
guidelines of the Government, as may be necessary, to any concerned Government or statutory
agency or body working in the district, and especially to the following:
(a) Officers of the Government in the Police, Health and Publicity Departments, and the
Department dealing with welfare of senior citizens;
(b) Maintenance Tribunals and Conciliation Officers;
(c) Panchayats and Municipalities; and
(d) Educational institutions.
CHAPTER VI
Protection of Life and Property of Senior Citizens
22. Action plan for the protection of life and property of Senior Citizens.— (1)The
District Superintendent of Police and in the case of cities having a Police Commissioner, such
Police Commissioner shall take all necessary steps, subject to such guidelines as the Government
may issue from time to time for the protection of life and property of senior citizens.
(2) Without prejudice to the generality of sub-rule (1):
(i) each police station shall maintain an up-to-date list of senior citizens living within itsjurisdiction, especially those who are living by themselves (i.e. without there being anymember in their household who is not a senior citizen);
(ii) a representative of the police station together as far as possible, with a social worker
81
or volunteer, shall visit such senior citizens at regular intervals of at least once a month,
and shall, in addition, visit them as quickly as possible on receipt of a request of
assistance from them;
(iii) complaints/problems of senior citizens shall be promptly attended to, by the local
Police;
(iv) one or more Volunteers’ Committee(s) shall be formed for each Police Station which
shall ensure regular contact between the senior citizens, especially those living by
themselves, on the one hand, and the police and the district administration on the
other;
(v) the District Superintendent of Police or, the Police Commissioner as the case may be,
shall cause to be publicized widely in the media and through the Police Stations, at
regular intervals, the steps being taken for the protection of life and property of senior
citizens;
(vi) each Police Station shall maintain a separate Register containing all important particulars
relating to offences committed against Senior Citizens as in Annexure IV;
(vii) the Register referred to in clause (vi) shall be kept available for public inspection, and
every officer inspecting a Police Station shall invariably review the status as entered in
the Register;
(viii) the Police Station shall send a monthly report of such crimes to the District
Superintendent of Police by the 10th of every month;
(ix) list of Do’s and Don’ts to be followed by senior citizens, in the interest of their safety
will be widely publicized;
(x) antecedents of domestic servants and others working for senior citizens shall be
promptly verified, on the request of such citizens;
(xi) community policing for the security of senior citizens will be undertaken in conjunction
with citizens living in the neighborhood, Residents’ Welfare Associations, Youth
Volunteers, Non-Government Organizations, etc;
(xii) the District Superintendent of Police shall submit to the Director General of Police
and to the District Magistrate, a monthly report by the 20th of every month, about the
status of crimes against senior citizens during the previous month, including progress
of investigation and prosecution of registered offences, and preventive steps taken
during the month, as in Annexure V;
(xiii) the District Magistrate shall cause the report to be placed before the Districtlevel
Committee constituted under Rule 24;
(xiv) The Director General of Police shall cause the reports submitted under clause (xii) to
82
be compiled, once a quarter, and shall submit them to the Government every quarter
as well as every year for, inter-alia, being placed before the State Council of Senior
Citizens constituted under Rule 23.
CHAPTER VII
State Council and District Committees of Senior Citizens
23. State Council of Senior Citizens.—(1)The State Government may, by order, establish
a State Council of Senior Citizens to advise the Government on effective implementation of the Act
and to perform such other functions in relation to Senior Citizens.
(2) The State Council shall consist of the following members, namely:
1. Minister, Department of Social Welfare, Govern- Chairperson
ment of Bihar
2. Principal Secretary/Secretary, Department of Member
Social Welfare
3. Nominated Representative (Not Below the post of Member
Deputy secretary) By Principal Secretary/Secre-
tary, Department of Home Affairs
4. Nominated Representative (Not Below the post of Member
Deputy secretary) By Principal Secretary/Secre-
tary, Department of Health
5. Nominated Representative (Not Below the post of Member
Deputy secretary) By Principal Secretary/Secre-
tary, Department of Finance
6. Nominated Representative (Not Below the post of Member
Deputy secretary) By Principal Secretary/Secre-
tary, Department of Rural Development
7. Nominated Representative (Not Below the post of Member
Deputy secretary) By Principal Secretary/Secre-
tary, Department of Urban Development
8. Nominated Representative (Not Below the post of Member
Deputy secretary) By Principal Secretary/Secre-
tary, Department of Transport
9. Director, Department of Information and Public Member
Relations
83
10. Nominated Representative By Director General Member
of Police
11. Three Social Workers (working for the welfare & Member
rights of older persons)
12. Two Representatives of Pensioners Associations Member
13. Two Representatives of NGOs working with Older Member
Persons
14. Director, Directorate of Social Security Member Secretary
(3) The State Council shall meet at least once in every six months.
(4) Tenure of the members of the State Council, other than ex officio members, Rules of
procedure of the Council and other ancillary matters shall be such as the State Government may by
order, specify.
(5) The State Government shall carry out external research and social investigation on the
implementation of the Act and the programmes/schemes relating to the older persons.
24. District Committee of Senior Citizens.—(1)The State Government may by order,
establish a District Committee of Senior Citizens for each District to advise on effective and
coordinated implementation of the Act, at the district level, and to perform such other functions on
relation to senior citizens at the district level.
(2) The District Committee for Senior Citizens shall consist of the following members,
namely:
1. District Magistrate Chairperson
2. Police Superintendent Member
3. Civil Surgeon cum Chief Medical Officer Member
4. Two Social Workers (one from the Old Age Home) Member
5. Representative of Pensioners Association Member
6. Two representatives of Voluntary Organizations Member
nominated by District Magistrate
7. Assistant Director Social Security Member Secretary
(3) The District Committee shall meet at least once in every three months.
(4)Tenure of the members of the District Committee, other than ex officio members, Rules of
procedure of the Committee and other ancillary matters shall be such as the State Government
may by order, specify.
84
(5)The District Committee will review the following activities relating to the implementation of
the Maintenance and Welfare of Parents and Senior Citizens Act, 2007, including:—
(a) Review of administration and management of old age homes;
(b) Quarterly supervision of institutions set up under the Maintenance and Welfare of
Parents and Senior Citizens Act, 2007 and send its report to the Director, Directorate
of Social Security / Secretary, Department of Social Welfare;
(c) Propose appropriate programme for promotion and development of old age homes;
(d) Support programmes relating to rehabilitation of senior citizens;
(e) Ensure linkages between different agencies working in the area of senior citizens
welfare;
(f) Review the functions of tribunals set up in the district under the Maintenance and
Welfare of Parents and Senior Citizens Act, 2007;
(g) Provide necessary suggestions for improving quality of institutional and noninstitutional
services.
(6) After completing its supervision, the Committee will prepare a report on its findings and
send the same to the Director, Directorate of Social Security / Secretary, Department of Social
Welfare for necessary action.
SCHEDULE
[See Rule (18)]
Norms of Physical Facilities and Operational Standards for an old age home for
Indigent Senior Citizens Established
Under Section 19 of the Act.
(I) Physical Facilities
(1) Land : The land for the old age home should be adequate to comply with the Floor-
Area Ratio (FAR) as prescribed by the relevant urban body / State Government. In
the case of semi-urban/rural areas the State Government shall provide adequate land
for setting up of an Old Age Home of requisite capacity that is adequate for living,
medical facilities, dining, toilet facilities, recreation, gardening, further expansion, etc.
(2) Living Space: The Old age home shall, as far as possible, have minimum area per
inmate as per the following norms:
(i) area of bedroom/ dormitory per inmate .. 7.5.Sq. metres
(ii) Living area or carpet area per inmate i.e. ..12 Sq. metres
including (i) above plus ancillary areas like kitchen, dining
hall, recreation room, medical room, etc., but excluding
85
verandah, corridor, etc.,
3. Facilities.—(1) The old age home shall have the following facilities:
(i) residential area comprising rooms/dormitories-separately for men and women;
(ii) adequate water for drinking and ancillary purposes;
(iii) electricity, fans and heating arrangement for inmates (as necessary);
(iv) kitchen-cum-store and office;
(v) dining hall;
(vi) adequate number of toilets and baths, including toilets suitable for disabled persons;
(vii) recreation facilities, television, newspaper and an adequate collection of books; and
(viii) first aid, sick bay, and primary healthcare facilities.
(2) The old age home should be barrier-free with provision of ramps and handrails, and
wherever necessary, lifts, etc.
II Operational standards
1. Supply of nutritious and wholesome diet as per scale to be fixed by the Government.
2. Adequate clothing and linen for the inmates, including for the winter season.
3. Adequate arrangements for sanitation, hygiene, and watch and ward / security.
4. Arrangements with the nearest Government hospital for emergency medical care, and
with the nearest Police Station for security requirements.
FORM ‘A’
Application for Maintenance under the Bihar Maintenance & Welfare of Parents &
Senior Citizens Act, 2007
For use of the Office of the Tribunal
Date of Filing… ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ...
OR
Date of Receipt by
Post ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ...
Registration
Number ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ...
Signature
Presiding Officer
In the Tribunal for Maintenance & Welfare of Parents:
86
Branch: ... ... ... ... ... ... ... ... ... ... ... ...
State: ... ... ... ... ... ... ... ... ... ... ... ... ..
(a) (b) ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ...Applicant
and
(c) (d) ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ...Through the
Respondent
Details of the Application:
1. Particulars of the Applicant:
(i) Name of the Applicant ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ...
(ii) Father/Husband’s Name ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ...
(iii) Address ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ...
... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ...
(iv) Address for all Information & Correspondence
2. Particulars of the Respondent:
(i) Name of the Respondent ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ...
(ii) Address of the Respondent ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ...
... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ...
(iii) Address for all Information & Correspondence ... ... ... ... ... ... ... ... ... ... ... ... ... ...
... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ...
3. Jurisdiction of the Tribunal: The applicant declares that the subject matter of the case
against which intervention is sought is within the jurisdiction of the Tribunal.
4. Facts of the Matter: The facts of the matter are given below.
5. Requested Relief (s): The applicant prays for relief as mentioned below, based on the
facts mentioned in para 4 above.
6. Transfer Orders, if request for the same has been made:
During pendency of the application, the applicant prays of the issuance of the below
mentioned interim order:
(Give the reasons and the outline for the request for interim order)
7. Particulars of Alternatives: The applicant declares that she/he has utilised all available
alternatives.
8. The matter is not pending before any other court. The applicant declares that the
matter in which this application has been made is not pending before any court or any other
Tribunal / authority or has not been dismissed by any court or any other officer.
87
9. Details of Index: Details of those documents on which the prayer for relief is based,
second copy of the entry index is enclosed.
Verification
I, ... ... ... ... ... ... ... ... ... ... ... ... (Name of the applicant), son / daughter / wife / husband
of ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ...
Age ... ... ... ... ... ...,Resident of
... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... .. ... Hereby certify
that issues mentioned in para 1 to 9 are true to my personnel knowledge
and
Belief, and that no fact has been hidden.
Place ___________
Date____________ Signature of Applicant
Copy to:
Presiding Officer
... ... ... ... ... ... ... ... ... ... ... ...
... ... ... ... ... ... ... ... ... ... ... ...
Receipt
Receipt of application filed in the Parents and Senior Citizens Tribunal by Sri/Smt. ... ... ... ...
... ... Address ... ... ... ... ... ... ... ... ... ... ... ... is hereby accepted.
For Presiding Officer
FORM ‘B’
Placed Before ... ... ... ... ... ... Tribunal ... ... ... ... ... ...
Indexation of the filed Application
Application has been received for maintenance ... ... ... ... ... ... (Particulars) from ... ... ... ...
... ... The application has been registered as case no. ... ... ... ... ... ...dated ... ... ... ... ... ...The
case hearing has been fixed for ... ... ... ... ... ...
Place:
Date: Signature
FORM ‘C’
Form for Notice/Summon to Respondent
[See Section 6 (1)]
Placed Before ... ... ... ... ... ... Tribunal ... ... ... ... ... ...
Address:
88
Case No. ... ... ... ... ... ... 2010
Applicant
V/s
Respondent / Respondents
To,
... ... ... ... ... ... ... ... ... ... ... ...
... ... ... ... ... ... ... ... ... ... ... ...
... ... ... ... ... ... ... ... ... ... ... ...
It is informed that the applicant under Section 4 of the Maintenance and Welfare of Parents
and Senior Citizens Act, 2007 has filed a claim for payment of Rupees ... ... ... ... ... ... per month
as maintenance from you. Hearing has been fixed on ... ... ... ... ... ... at ... ... ... ... ... ... Am / Pm
at the above mentioned office of the Tribunal. You are required to be present in person on the said
date and time with all supporting documents and your objections and statements. If you fail to be
present, the Tribunal will pass ex-parte order. Issued with my signature and seal dated ... ... ... ...
... ... 2010.
Registrar
(Seal of the Tribunal)
FORM ‘D’
[See Section 6 (3)]
Placed Before ... ... ... ... ... ... Tribunal ... ... ... ... ... ...
Endorsement of the Application
Application has been received for maintenance ... ... ... ... ... ... (particulars) from ... ... ... ...
... ...The application has been registered as case no. ... ... ... ... ... ...dated ... ... ... ... ... ...The case
hearing has been fixed for ... ... ... ... ... ...
Place:
Date: Signature
FROM ‘E’
Form for Directions to Conciliation Officer
[Section 6 (2) See Proviso]
Placed Before ... ... ... ... ... ... Tribunal ... ... ... ... ... ...
District ... ... ... ... ... ... Case No ... ... ... ... ... ...2009
Applicant:
Respondent:
89
vkosnd }kjk izfroknh ds fo:¼ Hkj.k&iks"k.k gsrq mijksDr ,rfLeu i'pkr~ fofufnZ"V lqyg vfèkdkjh dks lqyg dsfy, fufnZ"V fd;k tkrk gSA
Conciliation Officer will on or before ... ... ... ... ... ...apprise the decision/ settlement terms
to the Tribunal.
Issued with the signature and seal of the Tribunal on day ... ... ... ... ... ...Date ... ... ... ... ... ...
Signature
(Seal of the Tribunal)
To,
The Conciliation Officer
... ... ... ... ... ... ... ... ... ... ... ...
... ... ... ... ... ... ... ... ... ... ... ...
... ... ... ... ... ... ... ... ... ... ... ...
FROM ‘F’
[See Rule 11 (2)]
District ... ... ... ... ... ... ... ... ... ... Case No ... ... ... ... ... ... ... ... ... ... ... ... 2010
Applicant ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ...
Statement of Applicant ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ...
Statement of Respondent ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ...
Details of Settlement ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ...
Both parties are present and have agreed for the above mentioned mutual settlement on this
day ... ... ... ... ... ...2010.
Signature of the Applicant
Signature of the Respondent
Signature
Conciliation Officer
FROM ‘G’
[See Rule 11 (2) Settlement Report]
District ... ... ... ... ... ... ... ... ... ... ...Case No ... ... ... ... ... ... ... ... ... ... ... ... 2010
Applicant ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ...
Respondent ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ...
Tribunal Order No ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ...
Date of Settlement
Terms of Settlement
90
Agreement of Applicant and Respondent
Date:
Place:
Signature
Conciliation Tribunal
FROM ‘H’
[See Rule 11 (3)]
Applicant ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ...
Respondent ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ...
Settlement Order No ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ...
Proposal for Settlement ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ...
Arguments of the
Applicant ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ...
Arguments of the Respondent ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ...
Efforts made by Conciliation Officer:-
1. ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ...
2. ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ...
Points of Disagreement of the Applicant
Points of Disagreement of the Respondent
Decision:
Date: Signature
Conciliation Tribunal
FROM ‘I’
[See Rule 15]
Appeal in the Appellate Tribunal
Placed Before ... ... ... ... ... ... Tribunal ... ... ... ... ... ...
District ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ...
Appeal Number ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ...
Applicant:
Name & Address
... ... ... ... ... ... ... ... ... ... ... ...
... ... ... ... ... ... ... ... ... ... ... ...
91
... ... ... ... ... ... ... ... ... ... ... ...
Respondent:
Name & Address
... ... ... ... ... ... ... ... ... ... ... ...
... ... ... ... ... ... ... ... ... ... ... ...
... ... ... ... ... ... ... ... ... ... ... ...
Case Number ... ... ... ... ... ...and Date of Order ... ... ... ... ... ... against which the appeal
has been made. Copies of attached documents ... ... ... ... ... ...
Adhar
Appellant
Verification
I, ... ... ... ... ... ...above mentioned appellant do solemnly declare that the above statement
and particulars are correct as per my information, knowledge and belief.
Place:
Date:
Appellant
FORM ‘J’
Form for Issuance of Notice of Appeal under Section 16
(Section 16)
Tribunal ... ... ... ... ... ... ... ... ... ... ... ... placed before ... ... ... ... ... ... ... ... ... ... ...
Appeal Number
Applicant:
Name and Address
... ... ... ... ... ... ... ... ... ... ... ...
... ... ... ... ... ... ... ... ... ... ... ...
... ... ... ... ... ... ... ... ... ... ... ...
Defendant:
... ... ... ... ... ... ... ... ... ... ... ...
... ... ... ... ... ... ... ... ... ... ... ...
... ... ... ... ... ... ... ... ... ... ... ...
It is informed that the above mentioned appeal by the appellant has been submitted is vide
Case No ... ... ... ... ... ... against order dated ... ... ... ... ... ... Appeal ... ... ... ... ... ...has been
scheduled for ... ... ... ... ... ...AM / PM for final hearing. Your presence personally or through an
92
authorised representative (advocate) is required on the said date and time. Failure to attend will
lead to the appeal being heard and settled ex-parte.
Issued through my signature and seal of the court on ... ... ... ... ... ... day ... ... ... ... ...
...2010.
Signature
Competent Officer
FORM ‘K’
[Rule 17 (1)]
(Section 16)
Placed before the Tribunal ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ...
Appeal Number ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ...
Applicant:
... ... ... ... ... ... ... ... ... ... ... ...
... ... ... ... ... ... ... ... ... ... ... ...
... ... ... ... ... ... ... ... ... ... ... ...
Defendant:
... ... ... ... ... ... ... ... ... ... ... ...
... ... ... ... ... ... ... ... ... ... ... ...
... ... ... ... ... ... ... ... ... ... ... ...
It is informed that the above mentioned appeal by the appellant has been submitted is vide
Case No ... ... ... ... ... ...against order dated ... ... ... ... ... ... Appeal ... ... ... ... ... ... has been
scheduled for ... ... ... ... ... ... AM / PM for final hearing. Your presence personally or through an
authorised representative (advocate) is required on the said date and time. Failure to attend will
lead to the appeal being heard and settled ex-parte.
Issued through my signature and seal of the court on ... ... ... ... ... ... day ... ... ... ... ...
...2010.
Signature
Competent Officer
By the name and Order of the Governor of Bihar
ANNEXURE – 1
(See Rule – 4)
Register for Disposal of Claims by Tribunal
93
ANNEXURE – 2
Sl. Name, Age Sex Date of Type Date of Issue of Date of Details of Order
No. Address & Appli- of Notice Hearing Directions
Telephone cation Claim To the To the Issued by
of the Appli- Opposite Tribunal
Applicant cant Party
1 2 3 4 5 6 7 8 9 10 11
ANNEXURE – 2
(See Rule – 11)
List of Voluntary Organizations Providing Service to Senior Citizens
Sl. Name Addr- Contact Nature Any Number of Detail of Name Order
No. of the ess & Person of other Benefici- Building of the
Orga- Tele- & Tele- Services Work aries Act
nization phone phone Provided Males Fem- Ow- Ren- Under
Num- Num- to Senior ales ned ted Which
ber ber Citizens Regis-
tered
1 2 3 4 5 6 7 8 9 10 11 12
ANNEXURE – 4
(See Rule – 20)
List of Offences Committed Against Senior Citizens
S. Name & Age Sex Nature of Date of Condition Prosecution Action Order
No. Address of Offence Offence as under Taken by
the Senior Against Discussed Registered the
Citizen Senior Offences Police
Citizen
1 2 3 4 5 6 7 8 9 10
rrr
94
PART IV Notifications/Circulars
lkekU; ç'kklu foHkkx] ladYi lañ 3/,eñµ078/2005 lkñ çñµ17415/20 fnlEcj] 2012.
fo"k;%µlafonk ds vkèkkj ij fu;kstu ,oa fu;kstu dh çfØ;k LFkfxr j[ks tkus ds lacaèk esaA
dfeZ;ksa ,oa ç'kklfud lqèkkj foHkkx lEçfr lkekU; ç'kklu foHkkx ds ladYi Kkikad&2401 fnukad&18.07.2007
(le;≤ ij ;Fkk la'kksfèkr) }kjk lafonk ds vkèkkj ij ,d lhfer@vYi vofèk ds fy, fu;kstu dh çfØ;k,oa ekxZn'kZu fl¼kUr fu:fir fd;s x;s gSaA mDr ladYi ds vkyksd esa fofHk foHkkxksa }kjk LohÑr inksa ds fo#¼fu;fer fu;qfDr esa gks jgs foyEc dks ns[krs gq, mDr inksa ds fo#¼ lafonk ds vkèkkj ij fu;qfDr dh çfØ;k viukbZtk jgh gS vFkok mu inksa ij fu;qfDr dh tk jgh gSA blds vykok dqN foHkkxksa }kjk u;s&u;s inksa ds l`tu lfgrmu inksa ij lafonk ds vkèkkj ij fu;kstu Hkh fd;k tk jgk gSA
2. lafonk p;u dh çfØ;k dks vkSj lqn`<+ djus ds mís'; ls foHkkxh; ladYi Kkikad&2401 fnukad18.07.2007 esa la'kksèku fd, tkus dh dkjZokbZ çkjaHk dh tk jgh gSA blfy, vc fofHk foHkkxksa ds }kjk lafonkij fu;kstu dh dkjZokbZ ubZ uhfr ds vuq:i gh fd;k tkuk Js;"dj gksxkA
3. mi;qZDr vkyksd esa jkT; ljdkj }kjk ;g fu.kZ; fy;k x;k gS fd fofHk foHkkxksa ds }kjk {ks=kh; Lrjksa dsfy, l`ftr inksa ds fo#¼ lafonk ds vkèkkj ij fu;kstu dh dkjZokbZ ugha dh tk, ,oa lkekU; ç'kklu foHkkx }kjkfuxZr gksus okys u, funs'k dh çrh{kk dh tk,A lsokfuo`Ùk dfeZ;ksa ,oa inkfèkdkfj;ksa dh lsok;sa ysus ds lacaèk esafuxZr foHkkxh; ladYi Kkikad&2804 fnukad&29.03.2010 (le;≤ ij ;Fkk la'kksfèkr) ds fy, ;g jksdçHkkoh ugha jgsxkA
rrr
fcgkj ljdkj] fofèk foHkkx] i=k la[;k&,ñ@;ksñ ,iQñ Vhñ lhñ vjktñ in dk LFkk;hdj.k&44/2012/
tsñ@4380/02.11.012.
fo"k;%µekuuh; loksZPp U;k;ky; }kjk VªkaliQMZ dsl (flfofy) uañ&22/2001 (c`t eksgu yky cuke Hkkjrla?k ,oa vU;) esa fnukad&19.04.2012 dks ikfjr U;k;kns'k ds vkyksd esa iQkLV VªSd dksVZ dks LFkk;h :i lslapkfyr fd, tkus ,oa xSj ;kstuk en esa vLFkk;h :i ls l`ftr vij ftyk ,oa l=k U;k;kèkh'k ds inksa esa ls 183
iQkLV VªSd dksVZ ds inksa rFkk mPp U;kf;d lsok laoxZ dk 10 çfr'kr inksa ;Fkk 29 inksa vFkkZr~ dqy 212 inksa dklkeatu ds vkèkkj ij LFkk;h fd, tkus ds iQyLo#i buds fy, vko';d vjktif=kr oxZ&3 ,oa oxZ&4 ds fy,vko';d dqy 1272 inkksa dks lkeatu ds vkèkkj ij LFkk;h fd, tkus ds lacaèk esa LohÑfrA
vkns'k%µLohÑr
funs'kkuqlkj mi;qZDr fo"k; ds lacaèk esa dguk gS fd ekuuh; loksZPp U;k;ky; }kjk VªkaliQMZ ds'k (flfoy)uañ&22/2001 esa fnukad&19.04.2012 dks ikfjr vkns'k ds vkyksd esa jkT; ljdkj us lkekU; ç'kklu foHkkx ds i=klañ&12177 fnukad&30.08.2012 ds }kjk 183 iQkLV VªSd dksVZ dks xSj ;kstuk esa LFkk;h djrs gq, lkekU; ç'kklufoHkkx ds i=kkad&3975 fnukad&11.04.2011 }kjk xSj ;kstuk en esa vLFkk;h :i ls vij ftyk ,oa l=k U;k;kèkh'kdksfV ds l`ftr 219 inksa esa ls 183 iQkLV VªSd dksVZ ds fy, vij ftyk ,oa l=k U;k;kèkh'k inksa dks lkeaftr djrsgq, ,oa fcgkj mPp U;kf;d lsok ds l`ftr 291 inksa dk 10 çfr'kr ;kfu 29 inksa vFkkZr~ dqy 212 vij ftyk
95
,oa l=k U;k;kèkh'k dksfV ds inksa dks mDr 219 inksa esa lkeatu ds vkèkkj ij LFkk;h fd, tkus ds iQyLo:i budsfy, vko';d vjktif=kr oxZ&3 ,oa oxZ&4 ds fuEufyf[kr dqy 1272 vko';d inksa dks fofèk foHkkxh; Kkilañ&543 tsñ fnukad&16.09.2011 }kjk vjktif=kr oxZ&3 ,oa oxZ&4 ds vLFkk;h :i ls l`ftr dqy 1314 esa lkeaftrdjrs gq, LFkk;h djus dk fu.kZ; fy;k gS%&
Øñ lañ inuke inksa dh lañ osrueku
1. csap DydZ@vkWfiQl DydZ 424 ihñ chñ 1 + 1900
2. LVsuksxzkiQj 212 ihñ chñ 1 + 2400
3. fMiksft'ku jkbZVj 212 ihñ chñ 1 + 2400
4. vnZyh@ihmQu@vkWfiQl ihmQu 424 ihñ chñ 1 + 1800
2. mDr LFkk;hdj.k ds iQyLo#i 183 iQkLV VªSd dksVZ ds fy, iwoZ esa vLFkk;h :i ls l`ftr dqy 586
in Lor% lkeaftr gks tk;saxs ftlds fy, vyx ls in l`tu dh vko';drk ugha gksxhA
3. mDr inksa ds LFkkiuk O;; dk fodyu ctV 'kh"kZ&2014 U;k; ç'kklu y?kq 'kh"kZ&105 flfoy vkSj ls'kUlU;k;ky; mi'kh"kZ&0001 flfoy vkSj l=k U;k;ky; vUrxZr osru@HkÙks ls gksxkA
4. mDr inksa ds LFkk;hdj.k ds çHkko esa fnukad&16.10.2012 dh eaf=kifj"kn~ dh cSBd ds en lañ&4 esaLohÑfr çkIr gSA
rrr
96
PART V Activities of the Academy
Activities of the Academy
(October, 2012 - December, 2012)
A.P. Tripathi
Addl. Director, B. J. A.
Providing timely justice has become the greatest challenge before the judiciary due to
multiple reasons like docket explosion, ignorance about the Court Management, Time Management,
lack of sensitivity etc. The Judges of the subordinate courts have to play a pivotal role in this
regard. Educating judges as well as all the duty holders associated with the justice delivery system
is the only tool for improvement of the qualitative output. The conventional functions are assuming
new dimension with expansion, diversification and changes in the expectation of the society. The
object of training is to change ones awareness, knowledge, skills and behavior and as such
continued legal education is beneficial for judicial officers manning the district Courts. Sensitization
of prosecution officers and making then proactive is equally important for the criminal justice
delivery system.
Keeping all the aspects in the mind JEEP No. 23/2012 to JEEP No. 40/2012 was organized.
During this quarter 3 five day special training programmes were also organized in between 3rd
October, 2012 to 1st December 2012 for keeping the P.Ps./Addl. P.Ps. abrest with the new
diversified dimension of criminal justice system. Except the routine training programmes one State
Level Zonal Seminar on "Justice- Delayed- Role and Responsibility of Court" was also organized
on 15th December 2012, Under the able guidance of Hon'ble the Patron-in-Chief & Hon'ble
Chairman of Bihar Judicial Academy.
JEEP No. 33, 34 and 35/2012 were organized for Addl. District & Session Judges. During
the session Hon'ble Mr. Justice Sadanand Mukherjee former Judge of Patna High Court
addressed the participants on the Topic "Principles of Evidence and Electronic Evidence". His
lordship had emphasized the relevancy and admissibility of electronic evidence. Hon'ble Mr.
Justice Abhijit Sinha also instilled valuable inputs on the Subject "Speedy Disposal of NDPS
Act Cases". His lordship cautioned that the NDPS Act is very technical in nature and as such
interpretation of the provisions should be made very carefully in consonance with the latest
decisions of the Apex Court.
JEEP No. 37 was organized for all the District & Sessions Judges of Bihar. Hon'ble Mr.
Justice Navin Sinha, Chairman of the Bihar Judicial Academy, Hon'ble Mr. Justice S. Nayer
Hussain, Hon'ble Mr. Justice Navaniti Prasad Singh, Hon'ble Mr. Justice Ashwani
97
Kumar Singh & Hon'ble Mr. Justice Abhijit Sinha graced the occasion and in addition to
updation of knowledge of the participants their lordships sensitized them towards their pious duties
and responsibilities.
Hon'ble Mr. Justice Navin Sinha, Chairman of the Bihar Judicial Academy very emphatically
stated that the interest of the society is paramount and it should be safeguarded at all costs. In the
present scenario nature of the crime has been changed and we have to combat with it in effective
manner which can only be possible by updation of our knowledge and skill. It was also added that
the Judicial Officers should always work with the feeling of heart within and God overheard. We
should always focus on our duties and should always desist from blame game.
Hon'ble Mr. Justice S. Nayer Hussain conveyed that each and every officer should be
noble as it pays in many way. Nobility and industriousness can be learnt from Abraham Linkon,
former president of America. His lordship had further impressed upon speedy disposal of the
cases but it should be synchronized with the quality of justice. Judicial officers are required only to
adhere with rational view. It should always be kept in our mind that faith of the consumer of justice
should not be eroded. We must cultivate the habit of learning because it is perpetual process till our
last breath.
During the session meant for the District & Sessions Judges, Hon'ble Mr Justice Navaniti
Prasad Singh reminded that the judicial officers should develop sense of responsibility. We must
arouse consciousness towards even tiny incident happening around us. The consumers of justice
are looking towards us with high expectation and it should not be shattered.
Hon'ble Mr. Justice Ashwini Kumar Singh stated that we are under the public gaze and
we will have to withstand firmly to the expectations of the society for whom we are committed.
Hon'ble Mr. Justice Abhijit Sinha, former Judge of Hon'ble High Court has sensitized the
District Judges regarding preparing budget of the judgeship and handling the financial matters
timely, carefully and cautiously so that larger interest of the subordinate officers and staffs could be
safeguarded.
Other faculty members like Sri Ashok Priyadarshi on Motor Vehicle Accident Claim Case,
Dr. Anshuman on Charge and statements u/s. 313 Cr. P.C., Sri Sushil Kumar on Court Management
and Case Management, Dr. Arvind Kumar Singh on Medico-Legal Evidence, Sri J.M. Sharma,
Director, Bihar Judicial Academy on Civil Appeals, Probate Cases and Interlocutory Applications,
Sri M.P. Srivastava on Appreciation of Evidence, Sri Ajay Jha on CIS (Case Information System),
Sri Ajay Kumar Verma on Timely and Qualitative Adjudication of Civil Appeals and Sri Anil
Kumar Srivastava on Criminal Appeal and Revision, shared their knowledge galvanized with
experience.
Apart from above, we also imparted training to ministerial staffs comprising bench clerks &
office clerks of District & Sessions Judges and bench clerks & office clerks of Family Courts in
98
four separate batches under the heading of "Orientation Course on Tools and Techniques for
Enhancing Skills & Better Output". As resource person Sri N.P. Singh, Sri Ashish Kumar Ghosh,
Sri Ajaz Ahmad, Sri Imamuddin Khan Contributed a lot in updating the knowledge of ministerial
staffs.
One Zonal Seminar Comprising the district Patna, Rohtas Bihar Sharif, Ara and Buxar was
organised by the Bihar Judicial Academy on 15th December, 2012 on the topic "Justice Delayed
- Role & Responsibility of Courts". All the participating judgeships were headed by their
respective District Judges accompanied by two nominated judicial officers from each judgeship.
The District Judges or their representatives suggested valuable ways and means for
strengthening the Justice Delivery System in presence of their respective Hon'ble Inspecting
Judges of Patna High Court. Hon'ble Mr. Justice Navin Sinha, Hon'ble Mr. Justice
Samarendra Pratap Singh, Hon'ble Justice Mrs. Anjana Prakash, Hon'ble Mr. Justice
Vikash Jain and Hon'ble Mr. Justice Chakradhari Sharan Singh appreciated and evaluated
the presentation on the relevant topic and lastly Nalanda was placed in 'A' category whereas
Buxar and Bhojpur Judgship were bestowed category 'B' and 'C' respectively. Hon'ble Chairman
of this Academy apprised that after some interval such type of seminars will be held on different
relevant topics in different Zonal District Headquarters.
Thus, the closing quarter of the year 2012 remained full of academic activities and after
scrutinizing the feedbacks received from the participants we find the topics selected for them
proved its efficacy and we have succeeded in making the participants more vibrant and sensitive.
The questionnaire prepared by respectable Director of this Academy kept the participants more
attentive and responsive. Sri S.K. Jha Deputy Director of this Academy arranged the different
topics and case laws in the 'Juris-Ray' like a bouquet and made it more informative and
presentable. Conclusively we can say with pride that during this quarter also we spared no stone
unturned in proving the worthiness of Bihar Judicial Academy to the best of our capacity.
rrr
99
BIHAR JUDICIAL ACADEMY
Academic Calander
Sl. Target Group Course Title Duration
1. Principal Magistrates Refresher Course on Child 5th - 6th January, 2013
(Juvenile Justice Board) Psychology and amended (Saturday - Sunday)
provisions of J.J. Act, Issues
& Challenges.
2. Railway Magistrates Refresher Course on for 12th -13th January, 2013
Qualitative and Quantitative (Saturday - Sunday)
Augmentation in Disposal of
the Cases.
3. Registrars/Judge-in-Charge Orientation Course on 19th - 20th January, 2013
Enhancement of Skill, General (Saturday - Sunday)
Administration and Financial
Management.
4. Sub-Divisional Judicial Issues & Challenges in handling 2nd - 3rd February, 2013
Magistrates Matrimonial Cases and Special (Saturday - Sunday)
(SDJM Batch - I) Cases.
5. Sub-Divisional Judicial Issues & Challenges in handling 9th - 10th February, 2013
Magistrates Matrimonial Cases and Special (Saturday - Sunday)
(SDJM Batch - II) Cases.
6. Principal Judges & Addl. Role of Family Courts, 16th-17th February, 2013
Principal Judge (Patna) Settlement through Mediation (Saturday - Sunday)
(Family Courts) and Reconciliation.
7. Judicial Magistrates-cum- Expeditions Trial, Quality 2nd - 3rd March, 2013
Addl. Munsif (Civil Judge Judgment & Minimizing (Saturday - Sunday)
Jr. Div.) Batch I Adjournment
8. Judicial Magistrates-cum- Expeditions Trial, Quality 16th-17th March, 2013
Addl. Munsif (Civil Judge Judgment & Minimizing (Saturday - Sunday)
Jr. Div.) Batch II Adjournment
9. Judicial Magistrates-cum- Expeditions Trial, Quality 23rd-24th March, 2013
Addl. Munsif (Civil Judge Judgment & Minimizing (Saturday - Sunday)
Jr. Div.) Batch III Adjournment
100
10. Judicial Magistrates-cum- Expeditions Trial, Quality 30th - 31st March, 2013
Addl. Munsif (Civil Judge Judgment & Minimizing (Saturday - Sunday)
Jr. Div.) Batch IV Adjournment
11. Judicial Magistrates-cum- Expeditions Trial, Quality 6th - 7th April, 2013
Addl. Munsif (Civil Judge Judgment & Minimizing (Saturday - Sunday)
Jr. Div.) Batch V Adjournment
12. Judicial Magistrates-cum- Expeditions Trial, Quality 27th - 28th April, 2013
Addl. Munsif (Civil Judge Judgment & Minimizing (Saturday - Sunday)
Jr. Div.) Batch VI Adjournment
13. Judicial Magistrates-cum- Expeditions Trial, Quality 4th - 5th May, 2013
Addl. Munsif (Civil Judge Judgment & Minimizing (Saturday - Sunday)
Jr. Div.) Batch VII Adjournment
14. Judicial Magistrates-cum- Expeditions Trial, Quality 11th - 12th May, 2013
Addl. Munsif (Civil Judge Judgment & Minimizing (Saturday - Sunday)
Jr. Div.) Batch VIII Adjournment
15. Munsifs (Permanent Courts) Civil Pendency: Issues and 18th - 19th May, 2013
& Execution Munsifs Solutions/Delayed Execution (Saturday - Sunday)
(Batch I)
16. Munsifs (Permanent Courts) Civil Pendency: Issues and 25th - 26th May, 2013
& Execution Munsifs Solutions/Delayed Execution (Saturday - Sunday)
(Batch II)
17. Sub-Judge Care & Cautions Since 1st - 2nd June, 2013
(Batch I) institution to Execution/Handling (Saturday - Sunday)
Adjournment & Interlocutor
Application
18. Sub-Judge Care & Cautions Since 8th - 9th June, 2013
(Batch II) institution to Execution/Handling (Saturday - Sunday)
Adjournment & Interlocutor
Application
19. Sub-Judge Care & Cautions Since
(Batch III) institution to Execution/Handling 15th -16th June, 2013
Adjournment & Interlocutor (Saturday - Sunday)
Application
Sl. Target Group Course Title Duration
101
20. Sub-Judge Care & Cautions Since 22nd -23rd June, 2013
(Batch IV) institution to Execution/Handling (Saturday - Sunday)
Adjournment & Interlocutor
Application
21. ACJM/ Sub-Judge I Role & Responsibility of Sub- 29th - 30th June, 2013
(Batch I) Judge I as Secretary DLSA/ (Saturday - Sunday)
Handling Adjournments &
Interlocutory Applications/Bail
& Disposal of Properties
22. ACJM/ Sub-Judge I Role & Responsibility of Sub- 6th - 7th July, 2013
(Batch II) Judge I as Secretary DLSA/ (Saturday - Sunday)
Handling Adjournments &
Interlocutory Applications/Bail
& Disposal of Properties
23. CJM Role of CJM in Criminal Justice 13th - 14th July, 2013
Administration/Issues & (Saturday - Sunday)
Challenges
24. Ad-hoc ADJ Orientation Course on Court 27th - 28th July, 2013
(Batch I) Management, Case Management (Saturday - Sunday)
& Arrear Management
25. Ad-hoc ADJ Orientation Course on Court 3rd - 4th August, 2013
(Batch II) Management, Case Management (Saturday - Sunday)
& Arrear Management
26. Ad-hoc ADJ Orientation Course on Court 17th - 18th August, 2013
(Batch III) Management, Case Management (Saturday - Sunday)
& Arrear Management
27. Ad-hoc ADJ Orientation Course on Court 24th - 25th August, 2013
(Batch IV) Management, Case Management (Saturday - Sunday)
& Arrear Management
28. ADJ Refresher Course in Session 31st August - 1st Sep.,
(Batch I) Trial, Appellate Jurisdiction & 2013 (Saturday - Sunday)
Revisional Jurisdiction
Sl. Target Group Course Title Duration
102
29. ADJ Refresher Course in Session 7th - 8th September, 2013
(Batch II) Trial, Appellate Jurisdiction & (Saturday - Sunday)
Revisional Jurisdiction
30. ADJ Refresher Course in Session 14th-15th September, 2013
(Batch III) Trial, Appellate Jurisdiction & (Saturday - Sunday)
Revisional Jurisdiction
31. District Judge Judicial Administrative, Budgeting, 28th-29th September, 2013
Financial Management of District (Saturday - Sunday)
Judiciary
32. In-charge Librarian Enhancement of Skill in Managing 26th-27th October, 2013
Books & Journals (Saturday - Sunday)
33. Accountant Enhancing of Skill and Excellence 23rd-24th November, 2013
in Maintaining Accounts in Civil (Saturday - Sunday)
Courts
34. Munsif Seristedar Enhancement of Skill and 30th November -1st Dec., 2013
Capacity in Management of (Saturday - Sunday)
Court Affairs
35. Bench Clerk of CJM Enhancement of Skill and 14th-15th December, 2013
Capacity in Management of (Saturday - Sunday)
Court Affairs
East Zone Regional Judicial Conference Designed and Proposed by
National Judicial Academy
1. 22nd to 24th February, 2013
State Level Zonal Seminars at Bihar Judicial Academy:-
1. 20th April, 2013 (Saturday)
2. 18th May, 2013 (Saturday)
3. 20th July, 2013 (Saturday)
4. 21st September, 2013 (Saturday)
5. 7th December, 2013 (Saturday)
Mediation Training Programme Conducted by Bihar State Legal Services Authority at
Bihar Judicial Academy
1. 15th to 19th April, 2013 (Monday to Friday)
Sl. Target Group Course Title Duration
103
2. 20th to 24th May, 2013 (Monday to Friday)
3. 17th to 21st June, 2013 (Monday to Friday)
4. 22nd to 26th July, 2013 (Monday to Friday)
5. 19th to 23rd August, 2013 (Monday to Friday)
6. 25th to 29th November, 2013 (Monday to Friday)
7. 16th to 20th December, 2013 (Monday to Friday)
Ubuntu Awareness cum Training Sessions at Bihar Judicial Academy
1. 5th & 6th January, 2013 (Saturday & Sunday)
2. 12th & 13th January, 2013 (Saturday & Sunday)
3. 19th & 20th January, 2013 (Saturday & Sunday)
4. 2nd & 3rd February, 2013 (Saturday & Sunday)
Five Days Training Programmes of PPs and Addl. PPs. are going on Zone-wise. Slots
available will be Allotted for their Training in 2013.
1. 6th to 10th February (Wednesday to Sunday)
2. 5th to 9th March (Tuesday to Saturday)
3. 13th to 17th March (Wednesday to Sunday)
4. 20th to 24th March (Wednesday to Sunday)
5. 3rd to 7th April (Wednesday to Sunday)
6. 9th to 13th April (Tuesday to Saturday)
7. 24th to 28th April (Wednesday to Sunday)
8. 8th to 12th May (Wednesday to Sunday)
9. 5th to 9th June (Wednesday to Sunday)
10. 12th to 16th June (Wednesday to Sunday)
11. 3rd to 7th July (Wednesday to Sunday)
12. 10th to 14th July (Wednesday to Sunday)
13. 17th to 21st July (Wednesday to Sunday)
14. 4th to 8th September, (Wednesday to Sunday)
15. 11th to 15th September (Wed. to Sunday)
16. 23rd to 27th October (Wednesday to Sunday)
17. 20th to 24th November (Wed. to Sunday)
18. 4th to 8th December (Wednesday to Sunday)
19. 11th to 15th December (Wed. to Sunday)
104
INVITATION
1. BJA, Patna–7, has been publishing a Quarterly Journal, namely
“Juris-Ray”
2. Articles on any legal, contemporary Socio-legal issues are invited from Judges
and readers for publication in the Journal.
3. The Articles should be neatly typed, duly signed, should be legible and may be
sent by Post, addressed to the Director, Bihar Judicial Academy, Gaighat,
Gulzarbagh, Patna–7.