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INSTITUTE OF JUDICIAL TRAINING & RESEARCH, U.P. VINEET KHAND, GOMTINAGAR,

LUCKNOW – 226 010

Quarterly Digest

CONSTITUTIONAL, CIVIL, CRIMINAL & REVENUE LAWS (Covering important judgments of Supreme Court and Allahabad High Court)

April – June, 2007

Volume: XIII Issue No.: 2

Quarterly Digest

CONSTITUTIONAL, CIVIL, CRIMINAL & REVENUE LAWS (Covering important judgments of Supreme Court and Allahabad High Court)

April – June, 2007

Volume: XIII Issue No.:2

INSTITUTE OF JUDICIAL TRAINING & RESEARCH, U.P. VINEET KHAND, GOMTINAGAR,

LUCKNOW – 226 010

EDITOR-IN-CHIEF VED PAL Director

EDITOR-IN-CHARGE A.K. AGARWAL, Additional Director (Administration)

EDITORS VIJAI VARMA, Additional Director (Training)

GYANESH KUMAR, DY. Director Ms. REKHA AGNIHOTRI, DY. Director Mrs. KIRAN BALA, Assistant Director

FINANCIAL ADVISOR AWADHESH KUMAR

Additional Director (Finance)

ASSOCIATES SABIHA AKHTAR, Training Officer

B.K. MISHRA, Research Officer

ASSISTANCE D.C. Kapri

Mahendra Joshi Nagendra Kumar Shukla,

Anoop Kumar K.S. Bajpayee

SUBJECT INDEX

Sl.No. Subject

PART – I

1. Advocates Act

2. Arbitration and Conciliation Act

3. Arms & Explosive

4. Banking Law

5. Civil Procedure Code

6. Constitution of India

7. Contempt of Courts Act

8. Contract Act

9. Co-operative Societies Act

10. Court Fee Act

11. Criminal Procedure Code

12. Criminal Trial

13. Education

14. Essential Commodities Act

15. Evidence Act

16. Family Law / Matrimonial Disputes

17. Guardians and Wards Act

18. Hindu Marriage Act

19. Hindu Minority and Guardianship Act

20. Indian Penal Code

21. Indian Succession Act

22. Interpretation of Statutes

23. Land Acquisition Act

24. Legal Services Authorities Act

25. Limitation Act

26. Motor Vehicles Act, 1988

27. Muslim Law

28. NDPS Act

29. Negotiable Instruments Act

30. Panchayats and Zila Parishads

31. Precedents

32. Prevention of Corruption Act

33. Prevention of Food Adulteration Act 1954

34. Provincial Small Cause Courts Act

35. Public Policy

36. Rent Control and Eviction

37. Societies Registration Act

38. Specific Relief Act

39. Stamp Act

40. Taxation

41. Tort

42. Transfer of Property Act

43. U.P. Consolidation of Holdings Act

44. U.P. Imposition of Ceiling on Land Holdings Act

45. U.P. Land Revenue Act

46. U.P. Municipalities Act

47. U.P. Recruitment of Dependants of Government Servants

(Dying in Harness) Rule

48. U.P. Zamindari Abolition and Land Reforms Act

49. Will - Mutation

PART – II

50. Pending Bill(s)

51. Words and Phrases

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LIST OF CASES COVERED IN THIS ISSUE

Sl.No Name of the Case & Citation

1. Aashirwad Films v. Union of India & Ors; Appeal (civil) 709 of 2004,

decided by Hon‘ble Supreme Court on 18.05.2007

2. Abdul Qayyum v. II Additional District Judge Meerut & Ors.; 2007 (2) ALJ

332

3. Ace Pipeline Contracts Private Limited v. Bharat Petroleum Corporation

Limited; decided by Hon‘ble Supreme Court on 04.04.2007

4. Ajay Singh v. State of Maharashtra; Appeal (crl.) 829 of 2007, Decided by

Hon‘ble Supreme Court on 06/06/2007

5. Ashok Kumar Sonkar v. Union of India and Others; Civil Appeal No. 4761 of

2006, decided on February 23, 2007 by the Hon‘ble Supreme Court = (2007)

4 SCC 54

6. Ashok Pandey v. K. Mayawati and others; Writ Petition (Civil) 296 of 2007,

decided by Hon‘ble Supreme Court on 13.6.2007

7. Bapu @ Gajraj Singh v. State of Rajasthan; Appeal (crl.) 1313 of 2006,

Decided by Hon‘ble Supreme Court on 04/06/2007

8. Brij lal v. Dy. Director of Consolidation; 2007(102) RD 496

9. Budh Singh v. State of M.P.; Appeal (crl.) 769 of 2007, Decided by Hon‘ble

Supreme Court on 18/05/2007

10. Caterpillar India Pvt. Ltd v. Western Coal Fields Ltd. and Ors; Transfer Case

(civil) 4 of 2004, Decided by Hon‘ble Supreme Court on 18/05/2007

11. Central Bureau of Investigation v. State of Gujarat; Appeal (Crl.) 1181 of

2001, Decided by Hon‘ble Supreme Court on 21/06/2007

12. Daya Ram v. Raghunath & Ors Appeal (civil) 2900 of 2007, Decided on

15/06/2007

13. Dy. Superintendent, H.P. Corpn. Ltd. & Anr v. Kolhapur Agri. Market

Commtt. Kolhapur; Appeal (civil) 2903 of 2007, Decided by Hon‘ble


14. Executive Officer, Nagar Panchayat Chandauli and Anr. v. State of U.P. and

Others.; 2007 (2) ALJ DOC 17 (ALL) DB

15. Gobinder Singh v. General Public; AIR 2007 (NOC) 792 P&H

16. Greater Bombay Co-op. Bank Ltd v. M/s United Yarn Tex. Pvt. Ltd. & Ors;

Appeal (civil) 432 of 2004, Decided by Hon‘ble Supreme Court on

04/04/2007

17. Gurpreet Singh v. Union of India; Appeal (civil) 4570/2006, decided by

Constitutional Bench of Hon‘ble Supreme Court on 19.10.2006

18. Heera & Anr v. State of Rajasthan; Appeal (Crl.) 1307 of 2006, Decided by


19. In re: Ram Chandra Sharma; Cri. Contempt No. 29 of 2005, decided by

Hon‘ble Allahabad High Court on 19.9.2005 = 2007 (3) ALJ 94

20. Iqbal Bano v. State of U.P. and Anr; Appeal (crl.) 795 of 2001, Decided by


21. Jagat Bhan Singh v. State of U.P. 2007 (2) ALJ 639

22. Jagvir Singh & Ors. v. State (Delhi Admn.), Appeal (Crl.) Decided by

Hon‘ble Supreme Court on 5.6.2007

23. Kailash Nath Pandey and another v. State of U.P. and another;

Criminal Misc. Application No. 12535 of 2007, Decided by Hon‘ble

Allahabad High Court on 05.06.2007

24. Kamal Singh v. State of U.P.; 2007 (3) ALJ 146

25. Kandapazha Nadar & Ors. V. Chitraganiammal & Ors.; C.A. No. 5107 of

2000, Decided by Hon‘ble Supreme Court on 16.4.2007 = 2007(3) Supreme

529

26. Kishori Lal v. State of M.P; Appeal (crl.) 1115 of 1999, Decided by Hon‘ble

Supreme Court: 19/06/2007

27. Laxman Anaji Dhundale & Another v. State of Maharashtra; Appeal (crl.)

481 of 2007, Decided by Hon‘ble Supreme Court on 04/04/2007

28. M/s Bindal Logistics Pvt. Ltd. v. M/s Ashoka Handloom Factory & Ors. 2007

(1) ALJ 148

29. M/s Delta Mechcons (India) Ltd v. M/s Marubeni Corporation; Arbitration

Petition 11 of 2006, Decided by Hon‘ble Supreme Court on 18.05.2007

30. M/s Hotel Vilas and Anr. v. Anil Roy and Ors.; 2007 (3) ALJ 427

31. M/s Universal Subscriptions Agency Pvt. Ltd. v. The Joint Commissioner of

Income Tax, Special Ranger, Kanpur; 2007 (1) ALJ 376 DB

32. Manager, ICICI Bank Ltd. v. Prakash Kaur and others; Cr. Appeal No.

267/2007, Decided by Hon‘ble Supreme Court on 26.2.2007 = 2007 (3) ALJ

245

33. Mano v. State of Tamil Nadu; Appeal (crl.) 462 of 2007, Decided by Hon‘ble

Supreme Court on 02.04.2007

34. Mohd. Yusuf & Others v. State Of U.P. & Another; Application U/s 482 No.

12516 of 2007, Decided on 05/06/2007

35. N. Rangachari v. Bharat Sanchar Nigam Limited; Criminal Appeal No. 592 of

2007, Decided by Hon‘ble Supreme Court on 19.4.2007 = 2007 (3) Supreme

626

36. Nanta Deb Singha Mahapatra & Ors v. State of West Bengal; Appeal (crl.)

828 of 2007, Decided by Hon‘ble Supreme Court on 06/06/2007

37. National Institute of Technology and others v. Neeraj Kumar Singh; AIR

2007 SC 1155

38. New India Assurance Co. Ltd. v. Vedwati and Ors.; 2007 (3) ALJ 193

39. Niranjan Singh v. State of Madhya Pradesh; Appeal (crl.) 487 of 2001;


40. North East Karnataka Road Transport Corporation v. M. Nagangouda;

Criminal Appeal No. 129/2007 decided on January 9, 2007 by Hon‘ble

Supreme Court = AIR 2007 SC 973

41. Om Prakash v. State (NCT) of Delhi; Appeal (crl.) 534 of 2001; Decided by


42. Onkar Nath s/o Deewan Chandra v. Union of India & Ors; 2007 (2) ALJ 307

43. Oriental Insurance Company Ltd. v. Meena Variyal & Ors.; 2007 (3) ALJ 596

SC

44. P.T. Munichilkkanna Reddy & Ors. v. Revamma & Ors.; Civil Appeal No.

7062 of 2000, Decided by Hon‘ble Supreme Court on 24.4.2007 = 2007 (3)

Supreme 751

45. Patel Jagdish Haribhai v. State of Gujarat; 2007 Cri. LJ 1297

46. Peekay Re-Rolling Mills Pvt. Ltd. v. Asst. Commissioner and another; (2007)

4 SCC 30

47. Prabhakaran v. State of Kerala; Appeal (Crl.) 775 of 2005, Decided by


48. Prabhat Kumar Srivastava v. State of Uttar Pradesh and Anr.; 2007 (3) ALJ

140

49. Pramod Singh v. State of U.P., Criminal Misc. Writ Petition No. 10180 of

2007, Decided by Hon‘ble High Court of Allahabad on 23.3.2007 = 2007 (58)

ACC 192

50. Raj Kumar Soni & Anr Vs. State of U.P. & Anr.; Appeal (civil) 1763 of 2007,


51. Ram Anugrah v. Dy. Director of Consolidation, Allahabad; 2007 (102) RD

736

52. Ram Charittar & Another etc v. State of Uttar Pradesh etc.; Appeal (crl.) 329

of 2006, Decided by Hon‘ble Supreme Court on 04/04/2007

53. Ram Khiladi alias Ram Khilona alias Dariwal v. State of U.p.; Crl. M. First

Bail Application No. 11346 of 2007, Decided by Hon‘ble Allahabad High

Court on 04.06.2007

54. Ram Kishor v. State of U.P.; Criminal Misc. Bail Application No. 11414 of

2007, Decided on 5-6-07 by Allahabad High Court

55. Ram Narayan Gupta v. Smt. Laxmi Devi & Another; Application U/s 482 No.

11923 of 2007, Judgement/Order Dated 01/06/2007

56. Ram Sewak and Anr. v. State of U.P. and Anr.; 2007 (3) ALJ 114

57. Ram Sewak v. State of U.P.; 2007 (102) RD 511

58. Ram Shanker v. State of U.P. and others; AIR 2007 (NOC) 979 Allahabad

59. Ram Singh v. Sonia & Others; Cri. Appeals No. 895 of 2005 with Nos. 894 of

2005 and 142 of 2006, decided on February 15, 2007 = (2007) 2 SCC (Cri) 1

60. Rathnashalvan v. State of Karnataka; Criminal Appeal No. 45 of 2007,

Decided on January 11, 2007 by the Hon‘ble Supreme Court = (2007) 3 SCC

474

61. Raveendranath Naik v. Bar Council of India and others; W.P. No. 11180 of

2003, Decided by Hon‘ble Karnaktaka High Court on 8.2.2007 = 2007 (3)

ALJ (NOC) 524 Kar. = AIR 2007 Kar. 75

62. Rosali V. v. Talco Bank & Ors.; C. A. No. 6129 of 2000, decided on

23.1.2007 by the Hon‘ble Supreme Court = AIR 2007 SC 998

63. Sanjay Singh and Another v. U.P. Public Service Commission, Allahabad and

Another; Writ Petition (C) No. 165 of 2005 with Nos. 172, 409, 466 and 467

of 2005, decided on January 9, 2007 by the Hon‘ble Supreme Court = (2007)

3 SCC 720

64. Satish Rajput, Advocate & Others v. State of U.P. & Another; Application

U/s. 482 No. 12467 of 2007, Decided by Hon‘ble Allahabad High Court on

04.06.2007

65. Secretary, A.P. Social Welfare Residential Educational Institutions v. Pindiga

Sridhar & ors.; Civil Appeal No. 1470/2007, Decided by Hon‘ble Supreme

Court on 19.3.2007 = AIR 2007 SC 1527

66. Shamsher and Others v. State of U P.; Crl. Misc. Application no. 3076 of

2007, Decided by Hon‘ble High Court on 22-3-07

67. Shivanand Mallappa Koti v. State of Karnataka; Appeal (Crl.) 145 of 2002,

Decided by Hon‘ble Supreme Court on 5.6.2007

68. Smt. Manjuri Bera v. The Oriental Insurance Company Ltd. & Anr.; Civil

Appeal No. 1702 of 2007, Decided by Hon‘ble Supreme Court on 30.3.2007

= 2007 (3) Supreme 620

69. Smt. Mayadevi v. Jagdish Prasad; Civil Appeal No. 877 of 2007, Decided by

Hon‘ble Supreme Court on 21.2.2007 = AIR 2007 S.C. 1426

70. Smt. Suresh and Others v. Shree Chand and Others; W.P. Nos. 311 and 25926

of 2005, Decided by Hon‘ble Allahabad High Court on 22.02.2007 = 2007

(102) RD 516

71. Smt. Zakia Kausar v. Dy. Director of Consolidation, Moradabad

72. Sobaran Singh v. Board of Revenue and Anrs.; 2007 (2) ALJ DOC 25 ALL

73. Sri Pratap Bhattacharya v. Sri Ashok Bhattacharya; AIR 2007 (NOC) 893

Cal.

74. State of Haryana v. Surender & Ors. etc.; Appeal (crl.) 618-620 of 2001,


75. State of Haryana v. Suresh & Appeal (crl.) 1097 of 2002; State of Rajasthan

v. Babu Ram Appeal (Crl.) 248/2001 Decided by the Hon‘ble Supreme Court

on 5.6.2007

76. State of Madhya Pradesh v. Chamru @ Bhagwandas etc.etc; Appeal (crl.)

743-744 of 2002, Decided on 19/06/2007

77. State of Madhya Pradesh v. Sewa Singh; Appeal (crl.) 1275 of 2001, Decided

by Hon‘ble Supreme Court on 13/06/2007

78. State of Rajasthan v. Chittarmal; Appeal (Crl.) 477 of 2001, Decided by


79. State of Rajasthan v. Wakteng; Appeal (crl.) 677 of 2002, Decided by


80. State, NCT of Delhi v. Malvinder Singh; Appeal (Crl.) 433 of 2002, Decided

by Hon‘ble Supreme Court on 21/06/2007

81. Sukhwasi v. State of U.P.; Cr. Misc. Application No 9297 of 2007, Decided

on 18-5-2007

82. Supreme Court Bar Association v. Union of India & Ors.; W.P. (Civil) No. 27

of 2007, Decided by Hon‘ble Supreme Court on 13.4.2007 = 2007 (3)

Supreme 562

83. Suraj Bhan & Ors. v. Financial Commr. & Ors.; Civil Appeal No. 1971 of

2007, Decided by Hon‘ble Supreme Court on 16.4.2007 = 2007 (3) Supreme

539

84. Swami Rameshwar Prapannacharya Daraganj, Allahabad v. State of U.P.;

2007 (3) ALJ 390

85. Swamy Sharaddanandea @ Murali Monahar Mishra v. State of Karnataka;

Appeal (Crl.) 454 of 2006, Decided by Hon‘ble Supreme Court on

18.05.2007

86. The Oriental Insurance Company Limited v. Meena Variyal & ors; Appeal

(civil) 5825 of 2006; Decided by Hon‘ble Supreme Court on 02.04.2007

87. Umesh Chandra and Anr. v. Mahila Vidyalaya Society, Lucknow and others;

2007 (2) ALJ (NOC) 292

88. Union of India & Anr. v. Smt. Jagdish Kaur; AIR 2007 Allahabad 67

89. Union of India v. R. Gandhi; Appeal (civil) 3067 of 2004, Decided by


90. Usha Balashaheb Swami & ors. v. Kiran Appaso Swami & Ors.; Civil Appeal

No. 2019 of 2007, Decided by Hon‘ble Supreme Court on 18.4.2007 = 2007

(3) Supreme 582

91. V.R. Sudhakara Rao & Ors. v. T.V. Kameswari; Civil Appeal Nos. 8303-

8304 of 2003, Decided by Hon‘ble Supreme Court on 18.4.2007 = 2007 (3)

Supreme 592

92. Vinod Kumar Kushwaha v. The Vice Chancellor, Bundelkhand University,

Jhansi; C.M.W.P. No 40247 of 2005, Decided by Hon‘ble Allahabad High

Court on 02.03.2007

93. Vishal Chand Jain v. IX Addl. District Judge, Saharanpur & Ors.; 2007 (3)

ALJ 74

94. Vishnu Prakash Agarwal v. State of U.p.; Crl. M. Bail Application No. 11397

of 2007, Decided by Hon‘ble Allahabad High Court on 04.06.2007

95. West Bengal State Electricity Board v. Dilip Kumar Ray; AIR 2007 SC 976

96. Yogendra Pal and Others v. State of U.P.; Criminal Appeal No. 561 of 1981,

Decided by Hon‘ble Allahabad High Court on 28.6.2007

* * *

PART – I

Advocates Act Sec. 6 – Resolution passed by Bar Council of India directing advocates not

to participate in the programme of Legal Service Authorities in the form of

Lok Adalat and Legal Aid Programmes. Such direction is inoperative as

being illegal and void. (Raveendranath Naik v. Bar Council of India and others,

W.P. No. 11180 of 2003, decided by Karnaktaka High Court on 8.2.2007 = 2007

(3) ALJ (NOC) 524 Kar. = AIR 2007 Kar. 75)

Arbitration and Conciliation Act

Section 11(4)-(5)-(6) – Whether for purposes of sub-sections (4) and (5) of

Section, which expressly prescribe 30 days, the period of 30 days is

mandatory or not.‖

The period of 30 days cannot be read in Sub-Section (6) of Section 11 of

the Act as the statute does not permit it. We are aware of the Departmental

lethargy in making appointment of arbitrators in terms of the arbitration clause.

Therefore, mandamus can be issued by the Courts in exercise of powers under

Section 11(6) of the Act but the demand should be in the event of failure by the

authorities to appoint arbitrators within the reasonable time. Courts are not

powerless to issue mandamus to the authorities to appoint arbitrators as far as

possible as per the arbitration clause. But in large number of cases if it is found

that it would not be conducive in the interest of parties or for any other reasons to

be recorded in writing, choice can go beyond the designated persons or

institutions in appropriate cases. But it should normally be adhered to the terms

of arbitration clause & appoint the arbitrator/arbitrators named therein except in

exceptional cases for reasons to be recorded or where both parties agree for

common name. Appeal (civil) 1783 of 2007. (Ace Pipeline Contracts Private

Limited v. Bharat Petroleum Corporation Limited; Decided by Hon‘ble

Supreme Court on 04.04.2007)

S. 11 – ICC fail to appoint Presiding Arbitrator as per the Arbitration

Agreement – Whether Presiding Arbitrator can be appointed by the Chief

Justice of India – Yes.

As per terms of Arbitration agreement the petitioner and the respondent

have nominated their arbitrators but the nominee arbitrators had failed to appoint

a presiding arbitrator in terms thereof and in that context, as per the agreement,

the petitioner had approached the ICC for nominating a presiding arbitrator but

the ICC had refused the request without assigning any reason. Held, that the

jurisdiction of the Chief Justice of India --- being an international arbitration ---

under the Act was attracted and it was just and necessary to appoint a presiding

arbitrator in terms of Section 11 of the Act. (M/s Delta Mechcons (India) Ltd v.

M/s Marubeni Corporation; Arbitration Petition 11 of 2006, Decided by

Hon‘ble Supreme Court on 18.05.2007)

Arms & Explosive Arms Act 1959 Sec. 17(3) - Suspension of Arms License. Whether pendency

of criminal case is sufficient to suspend arms license - Held: No. But if the

weapon is used in a criminal case licence can be suspended for a particular

period. (Pramod Singh v. State of U.P., Criminal Misc. Writ Petition No. 10180

of 2007, Decided by Hon‘ble High Court of Allahabad on 23.3.2007 = 2007 (58)

ACC 192

Banking Law Recovery of Debts Due to Banks and Financial Institutions Act, 1993 Sec. 25 -

Bank Loan – Recovery: Held: Recovery should be made by the bank through

legal means and not by hiring muscles men as recovery agents. (Manager

ICICI Bank Ltd. V. Prakash Kaur and others, Cr. Appeal No. 267/2007, decided

by Hon‘ble Supreme Court, on 26.2.2007 = 2007 (3) ALJ 245.)

Civil Procedure Code O. 6 Rule 17 – Amendment of Pleadings – Amendment of Plaint &

Written Statement stand on different footings – Amendment may be allowed

after the trial has commenced if the court is satisfied that application could

not move earlier despite of due diligence of the party – Court should be

liberal in granting prayer for amendment of Pleadings.

From a bare perusal of Order 6 Rule 17 of the Code of Civil Procedure, it

is clear that the court is conferred with power, at any stage of the proceedings, to

allow alteration and amendments of the pleadings if it is of the view that such

amendments may be necessary for determining the real question in controversy

between the parties. The proviso to Order 6 Rule 17 of the Code, however,

provides that no application for amendment shall be allowed after the trial has

commenced unless the court comes to a conclusion that in spite of due diligence,

the party could not have raised the matter before the commencement of trial.

However, proviso to Order 6 Rule 17 of the Code would not be applicable in the

present case, as the trial of the suit has not yet commenced.

It is now well-settled by various decisions of this Court as well as those by

High Courts that the courts should be liberal in granting the prayer for amendment

of pleadings unless serious injustice or irreparable loss is caused to the other side

or on the ground that the prayer for amendment was not a bonafide one.

It is equally well settled principle that a prayer for amendment of the

plaint and a prayer for amendment of the written statement stand on different

footings. The general principle that amendment of pleadings cannot be allowed so

as to alter materially or substitute cause of action or the nature of claim applies to

amendments to plaint. It has no counterpart in the principles relating to

amendment of the written statement. Therefore, addition of a new ground of

defence of substituting or altering a defence or taking inconsistent pleas in the

written statement would not be objectionable while adding, altering or

substituting a new cause of action in the plaint may be objectionable. Such being

the settled law, we must hold that in the case of amendment of a written

statement, the courts are more liberal in allowing an amendment than that of a

plaint as the question of prejudice would be far less in the former than in the latter

case. (Usha Balashaheb Swami & ors. v. Kiran Appaso Swami & Ors.; Civil

Appeal No. 2019 of 2007, decided by Hon‘ble Supreme Court on 18.4.2007 =

2007 (3) Supreme 582)

O. 23 Rule 1(4) (b) withdrawal of suit – Suit withdrawal without liberty to

file fresh suit.

Order allowing withdrawal cannot constitute a decree debarring plaintiff

from taking the defence in second round of litigation. When the court allows the

suit to be withdrawn without liberty to file a fresh suit, without any adjudication,

such order allowing withdrawal cannot constitute a decree and it cannot debar the

petitioners herein from taking the defence in the second round of litigation.

(Kandapazha Nadar & Ors. V. Chitraganiammal & Ors.; C.A. No. 5107 of

2000, Decided by Hon‘ble Supreme Court on 16.4.2007 = 2007(3) Supreme

529)

Constitution of India Whether the legislature is competent in setting up national company law

tribunal and its appellate tribunal barring the jurisdiction exercised by the

High Court under Article 226 & 227 of the Constitution – Matter referred

for decision to Constitution bench by holding as follows: -

Law relating to the legislative competence to establish Tribunals has been

enunciated in several judgments of this court, including L. Chandra Kumar v.

Union of India and Ors (1997) 3 SCC 261; Union of India & Anr. Vs. Delhi High

Court Bar Association & Ors. (2002) 4 SCC 275 and State of Karnataka Vs.

Vishwabharathi House Building Cooperative Society & Ors. (2003) 2 SCC 412.

It has been held that under Entries 77, 78, 95 of List I, Entry 65 of List II and

Entry 11A of List III, the Parliament and State Legislatures possess legislative

competence to effect changes in the original jurisdiction of the Supreme Court

and the High Courts.

However, in none of the decisions rendered so far the question as to what

extent such powers of High Court can be transferred to Tribunals, excepting

judicial review under Articles 226/227 has not been considered. There is as yet

no demarcating line to show that, except for powers exercised under Article 226

& 227, the Parliament has the legislative competence to vest intrinsic judicial

functions, traditionally performed by Courts in any Tribunal or Authority, outside

the judiciary. The question to be determined is whether such ‗wholesale transfer

of powers‘ as contemplated by the Companies (Second Amendment) Act, 2002

would offend the constitutional scheme of separation of powers and independence

of judiciary, so as to aggrandize one branch over the other.

Since the issues raised in the appeals are of seminal importance and are

likely to have serious impact on the very structure and independence of the

judicial system, we are of the view that the issue with regard to the constitution of

the Tribunals and the areas of their jurisdiction needs to be given a fresh look and

therefore, the matter deserves to be heard by a Constitution Bench. (Union of

India v. R. Gandhi; Appeal (civil) 3067 of 2004, Decided by Hon‘ble Supreme

Court on 18.05.2007.)

Objectives of a statute should not contravene broad constitutional scheme

enshrined under Articles 14, 19, 21 and Preamble of the Constitution.

It has been accepted without dispute that taxation laws must also pass the

test of Article 14 of the Constitution of India. It has been laid down in a large

number of decisions of this Court that a taxation statute for the reasons of

functional expediency and even otherwise, can pick and choose to tax some.

Importantly there is a rider operating on this wide power to tax and even

discriminate in taxation: that the classification thus chosen must be reasonable.

The extent of reasonability of any taxation statute lies in its efficiency to achieve

the object sought to be achieved by the statute. Thus, the classification must bear

a nexus with the object sought to be achieved [See Moopil Nair v. State of

Kerala AIR 1961 SC 552, East India Tobacco Co. v. State of Andhra Pradesh

AIR 1962 SC 1733, V. Venugopala Ravi Varma Rajah v. Union of India and

Anr. AIR 1969 SC 1094, Assistant Director of Inspection Investigation v. Kum.

A.B. Shanthi AIR 2002 SC 2188, The Associated Cement Companies Ltd. v.

Government of Andhra Pradesh and Anr. AIR 2006 SC 928]

Objectives in a statute may have a wide range. But the entire matter should

also be considered from a social angle. In any case, it cannot be the object of any

statute to be socially devisive in which event it may fall foul of broad

constitutional scheme enshrined under Articles 19, 21 as also the Preamble of the

Constitution of India. (Aashirwad Films v. Union of India & Ors; Appeal

(civil) 709 of 2004, decided by Hon‘ble Supreme Court on 18.05.2007)

Article 311 – Compliance of Natural Justice in the termination of service

when service was obtained by practicing fraud – held:

By now it is settled principle of law that the principle of natural justice

cannot be applied in a straight – jacket formula. To sustain the compliant of

violation of principles of natural justice one must establish that he was prejudiced

for non-observance of the principles of natural justice. The facts clearly disclose

that the appointment on compassionate ground was secured by playing fraud.

Fraud clocks every thing. In such admitted fact there was no necessity of issuing

show cause notice. Thus it cannot be said there was non-observance of principles

of natural justice. No prejudice whatsoever has been caused to the respondents.

(Secretary, A.P. Social Welfare Residential Educational Institutions v.

Pindiga Sridhar & ors. – Civil Appeal No. 1470/2007 decided on 19.3.2007 =

AIR 2007 SC 1527)

Whether membership of Raj Sabha is a disqualification for being

appointed Chief Minister and Ministers under Art. 161(1), (4) and

requirement of their being elected to State Legislative Assembly within a

period of six months does not apply to them – Held: No.

The absence of the expression ―from amongst members of the

Legislature‖ in Article 164(1) is indicative of the position that whereas under that

provision a non-legislator can be appointed as a Chief Minister or a Minister but

that appointment would be governed by Article 164(4), which places a restriction

on such a non-member to continue as a Minister or the Chief Minister, as the case

may be, unless he can get himself elected to the Legislature within the period of

six consecutive months from the date of his appointment. Article 164(4) is

therefore not a source of power or an enabling provision for appointment of a

non-legislator as a Minister even for a short duration. It is actually in the nature of

a disqualification or restriction for a non-member, who has been appointed as a

Chief Minister or a Minister, as the case may be, to continue in office without

getting himself elected within a period of six consecutive months. [(See S.R.

Chaudhuri v. State of Punjab and Ors. (2001 (7) SCC 126)] 14. In Dr. Janak Raj

Jai v. H.D. Deve Gowda (1997 (10) SCC 462) it was held that a member of the

Legislative Assembly could be appointed as Prime Minister. (Ashok Pandey v.

K. Mayawati and others, writ petition (Civil) 296 of 2007, decided by Hon‘ble


Contempt of Courts Act

Advocate disturbing the proceedings of the Court by creating an ugly

scene by thumping the desk and shouting in the court – Whether amount to

Contempt of Court – Held, Yes.

Disturbing the proceeding of any Court and not allowing the Court to

function normally, on part of any person is a serious matter as it threatens to

disturb the orderly functioning of the legal system. The matter becomes more

serious when the functioning of a five Judge Bench in the High Court is

disturbed. And it becomes all the more serious when such activity is by an

Advocate, who is expected to maintain the decorum and help in upholding

the dignity of the Court in the eyes of litigants and public at large. When an

advocate, being an officer of the Court, indulges in disturbing the Court

proceedings, it sends a very wrong message to the general public and tends to

shake public confidence in the system. The very existence of law Courts

depends upon the public confidence, which they inspire. Advocate held guilty

for Contempt of Court. (In re: Ram Chandra Sharma; Cri. Contempt No. 29 of

2005, decided by Allahabad High Court on 19.9.2005 = 2007 (3) ALJ 94)

Contract Act Calling of Tenders – Imposing a condition restricting choice – Whether

justified – Held – No.

Imposing a condition like purchase preference no option is left and a

monopoly is being created. The increase in effectiveness of PSEs cannot be done

on a uniform policy without examination as to whether such protection is

necessary for a particular PSE. It has to be examined individually as to whether

any differential treatment is called for. It is pointed out that there may be no

competition left if 10% margin is given. In essence, the submission is that the

preference should be given PSE specific and the margin also has to be examined

rationally.

Imposing a condition like purchase preference no option is left and a

monopoly is being created. The increase in effectiveness of PSEs cannot be done

on a uniform policy without examination as to whether such protection is

necessary for a particular PSE. It has to be examined individually as to whether

any differential treatment is called for. It is pointed out that there may be no

competition left if 10% margin is given. In essence, the submission is that the

preference should be given PSE specific and the margin also has to be examined

rationally. (Caterpillar India Pvt. Ltd v. Western Coal Fields Ltd. and Ors;

Transfer Case (civil) 4 of 2004, decided by Hon‘ble Supreme Court on

18/05/2007)

Co-operative Societies Act

S. 117 – Whether notice is mandatory to be given to Registrar before

filing the suit. Held: Yes.

In absence of notice suit would be barred for cognizance. (Ram

Shanker v. State of U.P. and others, AIR 2007 (NOC) 979 Allahabad)

Court Fee Act S. 7(iv-A) and Article 17(iii) – To relief one for declaration of share and

other for cancellation of sale deed in respect of the share claimed – Whether

S. 7(iv-A) is applicable – Held, No.

It is well settled law that the payment of Court fee is dependent entirely

upon the averments made in the plaint and the relief claimed. The averments

made in the written statement is not required to be examined. In the present case,

the plaintiffs have prayed for two reliefs, namely, that they should be declared to

be the half owners of the property in question on the basis of a registered. Will

left by their mother and the second relief is for the cancellation of the sale deed

executed by the defendant in respect of their alleged share of the property.

In my view, section 7 (iv-A) of the Court Fees Act, as applicable, in the

State of U.P. is not applicable to the present case, for the simple reason, that it is

not a suit for the cancellation of an instrument securing money and other property

having a market value. The suit is for a declaration to the effect that the plaintiffs

should be declared to be the half owners of the property in question on the basis

of a registered Will. The suit is not for the cancellation of the Will nor is the suit

for a declaration that the Will should be declared null and void. Consequently, the

judgment cited by the learned Counsel for the respondents has no application to

the present facts and circumstances of the case. Even though, the Will is an

instrument securing money, the present suit is not a suit for a declaration seeking

the Will to be null and void nor the suit has been filed for the cancellation of the

Will. Consequently, the provision of section 7 (iv-A) of the Court Fees Act is not

applicable. (Smt. Suresh and Others v. Shree Chand and Others; W.P. Nos.

311 and 25926 of 2005, decided by Allahabad High Court on 22.02.2007 =

2007 (102) RD 516)

Criminal Procedure Code

S. 125 – Maintenance allowance – Whether Maintenance allowance fixed

in the compromise can be altered u/s 127 Cr.P.C - Held –Yes.

So far as the question of variation in the amount of maintenance is

concerned the court has got ample jurisdiction to alter the amount of monthly

allowance under section 127 Cr.P.C. taking into consideration the rise in prices.

If any lump sum payment had been made by way of permanent alimony

under a compromise, then the opposite parties could not raise any further claim

under section 127 Cr.P.C. But if that is not the position, and there has been

sufficient rise in prices since that date of compromise Maintenance allowance

fixed in the compromise that can be altered u/s 127 Cr.P.C.

(Ram Narayan Gupta v. Smt. Laxmi Devi & Another Application U/s 482

No. 11923 of 2007, Judgement/Order Dated01/06/2007)

S. 156(3) Cr.P.C., Powers of Magistrate, correctness of dictum in Cr. M.

Appl. 6152/06 doubted-referred to larger Bench.

According to the ruling of Hon'ble Vinod Prasad, J. in Smt. Masuman

(supra) the Magistrate is bound to pass order for registration of the case and its

investigation by the police in such a case also, and he has got no jurisdiction to

himself judge even the prima facie veracity of the allegations before passing

the order, and that he has to pass order for registration of the case on each

and every application which contains allegations of commission of cognizable

offence . The above view of Hon‘ble Vinod Prasad, in my humble opinion, does

not appear to be in consonance with the observations of Hon'ble Supreme

Court in Suresh Chand Jain (supra) and the Full bench ruling of this court in

Ram Babu Gupta(supra). Since there is difference of opinion on this point, I am

of the view that this question should be referred to a Larger Bench for decision.

I, therefore, frame the following question for reference to the larger

Bench:

" Whether the Magistrate is bound to pass an order on each and every

application under section 156(3) Cr.P.C. containing allegations of commission

of a cognizable offence for registration of the F.I.R. and its investigation by the

police even if those allegations , prima facie, do not appear to be genuine and do

not appeal to reason, or he can exercise judicial discretion in the matter and

can pass order for treating it as 'complaint' or to reject it in suitable cases"?

Let the papers be placed before Hon'ble the Chief Justice at his

Lordship‘s kind convenience for passing suitable orders for formation of a Larger

Bench for determination of the above question.

The application 482 Cr.P.C. shall be decided on the basis of the verdict of

the larger Bench on the above point. (Sukhwasi v. State of U.P.; Cr. Misc.

Application No 9297 of 2007, Decided on18-5-2007)

Co-accused similarly situated admitted to Bail – Claim of bail on the

ground of parity – Whether should be allow? – Held, No. – Parity is not

absolute rule and should not be blindly followed – Each case should be

decided on its own merit – Bail rejected and direction for speedy disposal of

case issued.

Parity is not an absolute rule. Order dated 02.05.2007 has been perused.

Seriousness of the crime in today's world has been totally ignored and its impact

on family members of the abductee has been totally ignored, as such said order

cannot be blindly followed. Kidnapping has become an organised industry,

wherein human emotions are encashed at the best. Once applicant is member of

the said syndicate no bail can be accorded to him. However in the present case in

case charge sheet has been submitted in the matter then in that event concerned

shall court endeavour and attempt to take up the aforesaid criminal trial on

priority basis and shall proceed to decide the same preferably within next six

months from the date of presentation of certified copy of this order. It is made

clear that no unnecessarily adjournment shall be granted to parties concerned. (In

term of the aforesaid observations present bail application is rejected. (Ram

Khiladi alias Ram Khilona alias Dariwal v. State of U.P.; Crl. M. First Bail

Application No. 11346 of 2007, decided by Allahabad High Court on

04.06.2007)

S. 301 & 302 Cr.P.C. – Whether a private counsel can appear before this

Court in a bail application which is triable by the Court of Sessions – Held,

Can only appear if an endorsement of ―No Objection‖ is made by Govt.

Counsel

Section 301 run as under:-

―301. Appearance by Public Prosecutors:- (1) The Public

Prosecutor or Assistant Public Prosecutor in charge of a case may

appear and plead without any written authority before any Court in

which that case is under inquiry, trial or appeal.

(2) If any such case any private person instructs a pleader to

prosecute any person in any Court, the Public Prosecutor or

Assistant Public Prosecutor in charge of the case shall conduct the

prosecution, and the pleader so instructed shall act therein under

the directions of the Public Prosecutor or Assistant Public

Prosecutor, and may, with the permission of the Court, submit

written arguments after the evidence is closed in the case.‖

S. 302 provides as under:-

―302. Permission to conduct prosecution- (1) Any Magistrate

inquiring into or trying a case may permit the prosecution to be

conducted by any person other than a police officer below the rank

of Inspector; but no person, other than the Advocate-General or

Government Advocate or Government Advocate or a Public

Prosecutor or Assistant Public Prosecutor, shall be entitled to do so

without such permission:

Provided that no police officer shall be permitted to conduct the

prosecution if he has taken part in the investigation into the offence with

respect to which the accused is being prosecuted.

(2) Any person conducting the prosecution may do so personally or

by a pleader.‖

In view of the provisions of Section 301 Cr.P.C. as well as the ruling of

the Hon'ble Apex Court in Shiv Kumar Vs. Hukum Chand (supra) he cannot

appear without obtaining "No objection" from the AGA appearing in this case.

It is to be seen that in the aforesaid case of Shiv Kumar (supra), the private

counsel appearing for the complainant had sought permission and the public

prosecutor had made an endorsement in his favour and then the permission was

by the Sessions Judge that permission was modified by the High Court to bring

out it in accordance with the provision of Section 301 Cr.P.C.

In the present case, Sri B.B. Paul, learned counsel has simply filed a

memo of appearance on behalf of the complainant he has not obtained the "No

Objection" of the AGA nor any permission has been sought and unless and until

these defects are removed, he cannot be permitted to appear on behalf of the

complainant and participate in the proceedings. (Vishnu Prakash Agarwal v.

State of U.P.; Crl. M. Bail Application No. 11397 of 2007, decided by

Allahabad High Court on 04.06.2007)

S. 200 & 202 and S. 3/1 & 10 SC/ST Act – Whether Magistrate can

summon accused for the offence punishable under SC/ST Act without

recording complete evidence – Held, No. – Magistrate ought to record

complete evidence before summoning accused as the case punishable under

SC/ST Act is triable by Court of Special Judge which is Court of Sessions

Judge.

The learned Magistrate recorded the statement of complainant under

section 200 Cr.P.C. and he also recorded the statements of Ram Lal and Babu

Lal under section 202 Cr.P.C. Thereafter he summoned the accused under section

323,504 and 506 I.P.C. and 3(1)(10) SC/ST Act vide order dated 18.12. 2006.

Aggrieved with that order the accused applicants have filed this application under

section 482 Cr.P.C.

Learned counsel for the applicants submitted before me that the offence

under sections 3(1)(10) SC/ST Act is triable by Special Judge (SC/ST Act) and so

the case is to be committed to the Court of Sessions by the Magistrate for trial.

He submitted that since the case is triable by the court of Sessions, the

Magistrate has to record statements of all the witnesses including formal witness

like Doctor and other police witnesses etc. under section 202 Cr.P.C., but he did

not do so in this case. The complainant had filed a copy of the injury report and

he also stated that he had got X-ray of his injuries done on the advise of the

Doctor but neither the Doctor, who medically examined the complainant, was

examined under section 202 Cr.P.C., nor the X ray plate nor X- ray report was

summoned nor the Doctor, who got the X ray done, was summoned. He

further pointed out that in this case the complainant has claimed that he had sent

report of the incident to the S.P. Mirzapur on 6.7.07 by registered post and in that

report there are allegations regarding commission of the offence under

sections 3(1)(10) of SC/ST Act which is a cognizable offence, and so it was

essential for the Magistrate to have obtained report from the S.P. Mirzapur as

to whether he had received application dated 6.7.06 from the complainant or

not, and if he had received that application , what action was taken by him on

that report , and whether the matter has been got investigated or not, taking into

consideration the provisions of SC/ST Act, and the documents regarding

action , if any, taken by the S.P. Mirzapur on that report should also have been

summoned by the Magistrate, and after getting recorded statements of all the

prosecution witnesses and obtaining report of the police on the aforesaid

application of the complainant dated 6.7.06, he should have passed order in the

matter. Since the learned Magistrate has failed to comply with the above

requirements, the impugned order passed by him cannot be upheld and the same

is liable to be set aside. The application under section 482 Cr.P.C. is therefore

allowed. (Kailash Nath Pandey and another v. State of U.P. and another;

Criminal Misc. Application No. 12535 of 2007, decided by Allahabad High

Court on 05.06.2007)

Ss. 82 & 83 – Whether process U/s 82 & 83 can be issued simultaneously –

Held - No

The warrant is to be issued at the first instance and when the accused does

not appear in court even after issue of warrant, the process under sections 82

Cr.P.C. can be issued only when there is a report to this effect that he is

absconding. After issuing proclamation under sections 82 Cr.P.C. the court has to

wait for thirty days from the date of publication of proclamation, and then

attachment under section 83 Cr.P.C. is to be issued. But if the court is of the

view that the accused is about to dispose of the whole or any part of his property

or is about to remove the whole or any part of his property from the local

jurisdiction of the court, the proclamation under section 82 Cr.P.C. and

attachment u/s 83 Cr.P.C. can be issued simultaneously. In such a case, the court

must be satisfied on the basis of the evidence produced before it that these

circumstances exist and he has to mention these facts in the order for issuing

processes under sections 82 and 83 Cr.P.C. simultaneously. (Shamsher and

others v. State of U P.; Crl. Misc. Application no. 3076 of 2007, Decided by

Hon‘ble Allahabad High Court on 22-3-07)

Investigation – Whether Magistrate can direct the CBI to take over

investigation. Held:

This Court in Central Bureau of Investigation through S.P. Jaipur Vs.

State of Rajasthan & another [2001) 3 SCC 333] has laid down the principles as

to whether direction can be given to the CBI under Section 156(3) Cr.P.C. It was

held that magisterial power cannot be stretched under the said provision beyond

directing the officer incharge of a police station to conduct the investigation and

no such direction can be given to the CBI. In the instant case, the first

information report was already registered and in that sense Section 156(3) Cr.P.C.

had no application. There is substance in the plea of learned counsel for the CBI

that routine matters should not be entrusted to the CBI as the investigating

agencies of various States can effectively investigate such matters. Of course,

where it is shown that the investigating agency is not doing proper investigation

and/or that there is reason to believe that there is laxity in the investigation, a

direction may be given to the CBI to investigate the matter in appropriate cases.

This case is not one where any complexity was involved. It was a routine case of

theft of Muddamal property. The learned Sessions Judge, therefore, rightly

appears to have set aside the orders passed by the learned Chief Judicial

Magistrate. (Central Bureau of Investigation v. State of Gujarat; Appeal

(Crl.) 1181 of 2001, Decided by Hon‘ble Supreme Court on 21/06/2007)

Criminal Trial

Effect of minor contradiction – Does not make the witness unreliable.

No enmity with the accused could be proved by the evidence against the

witnesses, and hence we agree with the High Court that some minor

contradictions will not shake their testimony. (Ram Charittar & Another etc. v.

State of Uttar Pradesh etc.; Appeal (Crl.) 329 of 2006, decided on 04/04/2007)

S. 34 IPC – When can be invoked - Held,

To invoke Section 34 successfully, it must be shown that the criminal act

complained against was done by one of the accused persons in the furtherance of

the common intention of all; if it is shown, then liability for the crime may be

imposed on any one of the persons in the same manner as if the act were done by

him alone. This being the principle, it is clear to their Lordships that common

intention within the meaning of the section implies a pre-arranged plan, and to

convict the accused of an offence applying the section it should be proved that the

criminal act was done in concert pursuant to the pre-arranged plan. As has been

often observed, it is difficult if not impossible to prove the intention of an

individual; in most cases it has to be inferred from his act or conduct or other

relevant circumstances of the case.‖

In Hamlet vs. State of Kerala [2003 (10) SCC 108, vide para 17], this

Court held that to establish the common intention of several persons to attract

Section 34 IPC, the following two fundamental facts have to be established: (i)

common intention and (ii) participation of the accused in commission of the

offences. In the present case, neither common intention nor participation of the

appellants in the commission of the offence has been established beyond

reasonable doubt.

No doubt, as held by this Court in Anil Sharma vs. State of Jharkhand

[2004 (5) SCC 679, vide para 17] direct proof of common intention is seldom

available and, therefore, such intention can only be inferred from the

circumstances appearing from the proved facts of the case. However, in order to

bring home the charge of common intention the prosecution has to establish by

evidence, whether direct or circumstantial, that there was plan or meeting of

minds of all the accused persons to commit the offence for which they are charged

with the aid of Section 34 (Laxman Anaji Dhundale & another v. State of

Maharashtra; Appeal (crl.) 481 of 2007; decided by Hon‘ble Supreme Court

on 04/04/2007)

Witness related to deceased – Evidentiary value – Held,

In regard to the interestedness of the witnesses for furthering the

prosecution version, relationship is not a factor to affect the credibility of a

witness. It is more often than not that a relation would not conceal the actual

culprit and make allegations against an innocent person. Foundation has to be laid

if a plea of false implication is made. In such cases, the court has to adopt a

careful approach and analyse evidence to find out whether it is cogent and

credible. (Mano v. State of Tamil Nadu; Appeal (Crl.) 462 of 2007, decided

by Hon‘ble Supreme Court on 02.04.2007)

Whether time of death can be accurately stated; Held -No

It is now well settled that the lapse of time of taking place of death cannot be

accurately stated. In Amrit Singh v State of Punjab [AIR 2007 SC 132], it was

held:-―...Exact time as to when the occurrence took place is not known and it

would be hazardous to make any guess in this behalf.....‖ (Budh Singh v. State of

M.P.; Appeal (Crl.) 769 of 2007, Decided by Hon‘ble Supreme Court on

18/05/2007)

A defective investigation by itself cannot be a ground for acquittal.

(Budh Singh v. State of M.P.; Appeal (Crl.) 769 of 2007, Decided by Hon‘ble

Supreme Court on 18/05/2007)

Right of private defence - Whether it is necessary for the accused to plead

in so many words that he acted in self-defence - Court when should consider

the plea of right of self defence- Whether burden on accused is the same as

on prosecution; Held:

Section 96, IPC provides that nothing is an offence which is done in the

exercise of the right of private defence. The Section does not define the

expression ‗right of private defence‘. It merely indicates that nothing is an offence

which is done in the exercise of such right. Whether in a particular set of

circumstances, a person acted in the exercise of the right of private defence is a

question of fact to be determined on the facts and circumstances of each case. No

test in abstract for determining such a question can be laid down. In determining

this question of fact, the Court must consider all the surrounding circumstances.

It is not necessary for the accused to plead in so many words that he acted in self-

defence. If the circumstances show that the right of private defence was

legitimately exercised, it is open to the Court to consider such a plea. In a given

case the Court can consider it even if the accused has not taken it, if the same is

available to be considered from the material on record. Under Section 105 of the

Indian Evidence Act, 1872, the burden of proof is on the accused, who sets up the

plea of self-defence, and, in the absence of proof, it is not possible for the Court to

presume the truth of the plea of self-defence. The Court shall presume the absence

of such circumstances. It is for the accused to place necessary material on record

either by himself adducing positive evidence or by eliciting necessary facts from

the witnesses examined for the prosecution. An accused taking the plea of the

right of private defence is not required to call evidence; he can establish his plea

by reference to circumstances transpiring from the prosecution evidence itself.

The question in such a case would be a question of assessing the true effect of the

prosecution evidence, and not a question of the accused discharging any burden.

Where the right of private defence is pleaded, the defence must be a reasonable

and probable version satisfying the Court that the harm caused by the accused was

necessary for either warding off the attack or for forestalling the further

reasonable apprehension from the side of the accused. The burden of establishing

the plea of self-defence is on the accused and the burden stands discharged by

showing preponderance of probabilities is favour of that plea on the basis of the

material on record. (See Munshi Ram and Ors. v. Delhi Administration: AIR

1968 SC 702: State of Gujarat v. Bai Fatima: AIR 1975 SC 1478: State of U.P. v.

Mohd. Musheer Khan: AIR 1977 SC 2226: and Mohinder Pal Jolly v. State of

Punjab: AIR 1979 SC 577). Sections 100 to 101 define the extent of the right of

private defence of body. If a person has a right of private defence of body under

Section 97, that right extends under Section 100 to causing death if there is

reasonable apprehension that death or grievous hurt would be the consequence of

the assault. The oft quoted observation of this Court in Salim Zia v. State of U.P.

(AIR 1979 SC 391), runs as follows:

―It is true that the burden on an accused person to establish the plea

of self-defence is not as onerous as the one which lies on the

prosecution and that, while the prosecution is required to prove its

case beyond reasonable doubt, the accused need not establish the

plea to the hilt and may discharge his onus by establishing a mere

preponderance of probabilities either by laying basis for that plea

in the cross-examination of the prosecution witnesses or by

adducing defence evidence.‖

The accused need not prove the existence of the right of private defence

beyond reasonable doubt. It is enough for him to show as in a civil case that the

preponderance of probabilities is in favour of his plea. (Nanta Deb Singha

Mahapatra & Ors v. State of West Bengal; Appeal (Crl.) 828 of 2007,


On rejecting final report case to proceed as State Case if sufficient

evidence in C.D. and not otherwise.

A case can proceed as state case after rejection of the final report, if there

is evidence against the accused in the case diary. Where the I.O. has not properly

investigated the case. Two alternatives are open to the learned Magistrate in such

a case. He can direct the I.O. for further investigation and pass suitable order in

the matter after receiving the report on further investigation. But in that case the

accused could not be summoned on the basis of in-sufficient evidence against the

accused in the case diary, nor any order could be passed for further proceeding

with the case unless sufficient evidence was produced before the Court. The other

alternative before the Magistrate was to summon the accused after rejecting the

final report on the basis of statements of witnesses filed by the complainant in the

shape of affidavits If the Magistrate was satisfied with those affidavits, he could

take cognizance, but in that case, the case could proceed as a complaint case and

not as the state case. Since the learned Magistrate has passed an order for

summoning the accused on the basis of insufficient evidence in the case diary

holding that proper investigation was not done the orders for summoning the

accused and treating it as state case can not be sustained. (Mohd. Yusuf &

Others v. State of U.P. & Another Application U/s 482 No. 12516 of

2007Judgement dated - 05/06/2007)

Exercise of right of private defence - When right accrue, continue and

extent of the right- Explained;

The number of injuries is not always a safe criterion for determining who

the aggressor was. It cannot be stated as a universal rule that whenever the

injuries are on the body of the accused persons, a presumption must necessarily be

raised that the accused persons had caused injuries in exercise of the right of

private defence. The defence has to further establish that the injuries so caused on

the accused probabilities the version of the right of private defence. Non-

explanation of the injuries sustained by the accused at about the time of

occurrence or in the course of altercation is a very important circumstance. But

mere non-explanation of the injuries by the prosecution may not affect the

prosecution case in all cases. This principle applies to cases where the injuries

sustained by the accused are minor and superficial or where the evidence is so

clear and cogent, so independent and disinterested, so probable, consistent and

credit-worthy, that it far outweighs the effect of the omission on the part of the

prosecution to explain the injuries. [See Lakshmi Singh v. State of Bihar (AIR

1976 SC 2263)]. In this case, as the Courts below found there was not even a

single injury on the accused persons, while PW2 sustained large number of

injuries and was hospitalized for more than a month. A plea of right of private

defence cannot be based on surmises and speculation. While considering whether

the right of private defence is available to an accused, it is not relevant whether he

may have a chance to inflict severe and mortal injury on the aggressor. In order to

find whether the right of private defence is available to an accused, the entire

incident must be examined with care and viewed in its proper setting. Section 97

deals with the subject matter of right of private defence. The plea of right

comprises the body or property (i) of the person exercising the right; or (ii) of any

other person; and the right may be exercised in the case of any offence against the

body, and in the case of offences of theft, robbery, mischief or criminal trespass,

and attempts at such offences in relation to property. Section 99 lays down the

limits of the right of private defence. Sections 96 and 98 give a right of private

defence against certain offences and acts. The right given under Sections 96 to 98

and 100 to 106 is controlled by Section 99. To claim a right of private defence

extending to voluntary causing of death, the accused must shows that there were

circumstances giving rise to reasonable grounds for apprehending that either death

or grievous hurt would be caused to him. The burden is on the accused to show

that he had a right of private defence which extended to causing of death. Sections

100 and 101, IPC define the limit and extent of right of private defence.

Sections 102 and 105, IPC deal with commencement and continuance of

the right of private defence of body and property respectively. The right

commences, as soon as a reasonable apprehension of danger to the body arises

from an attempt, or threat, or commit the offence, although the offence may not

have been committed but not until that there is that reasonable apprehension. The

right lasts so long as the reasonable apprehension of the danger to the body

continues. In Jai Dev. v. State of Punjab (AIR 1963 SC 612), it was observed that

as soon as the cause for reasonable apprehension disappears and the threat has

either been destroyed or has been put to route, there can be no occasion to

exercise the right of private defence.

In order to find whether right of private defence is available or not, the

injuries received by the accused, the imminence of threat to his safety, the injuries

caused by the accused and the circumstances whether the accused had time to

have recourse to public authorities are all relevant factors to be considered. Thus,

running to house, fetching a tabli and assaulting the deceased are by no means a

matter of course. These acts bear stamp of a design to kill and take the case out of

the purview of private defence. Similar view was expressed by this Court in Biran

Singh v. State of Bihar (AIR 1975 SC 87) and recently in Sekar @Raja Sekharan

v. State represented by Inspector of Police, Tamil Nadu (2002 (7) Supreme 124).

(Nanta Deb Singha Mahapatra & Ors v. State of West Bengal; Appeal (Crl.)

828 of 2007, Decided by Hon‘ble Supreme Court on 06/06/2007)

Medical Evidence - Eye witness account at variance with the medical

evidence, whether can be the basis of acquittal- Held -yes.

The post-mortem was conducted by a team of doctors. It was noted that

there was no external or internal injury and the cause of death is unknown. On

forensic examination presence of Ethyl Alcohol was noticed. If the deceased had

been subjected to kicks on vital parts or slapped as was stated by PW-6 there

certainly would have been marks of injury. Doctor‘s evidence clearly rules this

out. Further the evidence of PW-6 was rightly held to be unreliable by the High

Court. During investigation she has stated that the accused had slapped the

deceased. There was no mention about the kick on the thigh or that the accused

kicked the deceased after he fell down. Further the evidence of PW-2 (brother of

PW-6) was to the effect that PW-6 had told him that the deceased was assaulted

by Sub Inspector Pandey and the accused. Evidence of PW-6 is entirely different.

It is true that in the case of custodial violence there would be less

possibility of getting direct evidence, and direct independent witness. This was

the position as indicated by this Court in State of M.P. v. Shyamsunder Trivedi

and Ors. (1995 (4) SCC 262). There were injuries on the body of the deceased in

that case. In the present case medical evidence clearly shows that there was no

external or internal injury.

Above being the position, the judgment of acquittal passed by the High

Court does not suffer from any infirmity to warrant interference. (State of

Madhya Pradesh v. Sewa Singh; Appeal (Crl.) 1275 of 2001, Decided by

Hon‘ble Supreme Court on 13/06/2007)

Value of Identification - The photograph of accused was shown to the

witnesses before the T.I. Parade –Effect – Held -

Wittnesses admitted in cross-examination that the Police had shown them

the photograph of Chamru. This would render the entire proceedings as useless.

and conviction cannot be based on such evidence. (State of Madhya Pradesh v.

Chamru @ Bhagwandas etc.; Appeal (crl.) 743-744 of 2002, Decided on:

19/06/2007)

Old age and long pendency of a Criminal Case – Whether sufficient to

take lenient view in the matter of punishment – Held – No.

So far as sentence is concerned; Yogtendra Pal was about 58 years old on

12.9.80 when his statement was recorded under Section 313 Cr.P.C. His two

brothers, namely Onkar Nath and Siya Ram were about 48 years and 45 years

respectively. Now after expiry of about 27 years, they are 85, 75 and 72 years

between their conviction and disposal of this appeal, we are inclined to take a

lenient view and are of the opinion that ends of justice would be met if they are

sentenced to the period already undergone by them and to pay a fine of Rs.

4,000/-. (Yogendra Pal and Others v. State of U.P.; Criminal Appeal No. 561

of 1981, Decided by Hon‘ble Allahabad High Court on 28.6.2007)

Education U.P. Secondary Education Selection Board Act, 1982 – S. 2(a) – Whether

word ‗Teacher‘ includes a temporary teacher? – Held, Yes.

The word "teacher" has not been defined under the Intermediate Education

Act, but under Section 2(a) of the U.P. Secondary Education Selection Board Act,

1982 "teachers" means-

"2(k) "Teacher" means a person employed for imparting instruction in an

institution, and includes a Principal or a Head Master".

Under section 2(e) of the U.P. High Schools and Intermediate Colleges

(Payment of Salaries of Teachers and other Employees) Act, 1971, the teacher has

been defined as:-

"2(e) "Teacher" of an institution means a Principal, Head Master or other

teacher in respect of whose employment maintenance grant is paid by the

State Government to the institution, and includes any other teacher

employed in fulfilment of the conditions of recognition of the institution

or its recognition in a new subject or for a higher class or as a result of the

opening with the approval of the Inspector of a new section in an existing

class."

Under section 2(18) of the U.P. State Universities Act, 1873 the teacher

has been defined as :-

"2(18) 'Teacher' means a person employed for imparting instruction or

guiding or conducting research in the university or in an Institute or in a

constituent, affiliated or associated college, and includes a Principal or a

Director."

In view of the aforesaid, the irresistible conclusion is, that a teacher would

include not only a permanent teacher but also a temporary teacher, who is

employed for imparting instructions in an institution. (Vinod Kumar Kushwaha

v. The Vice Chancellor, Bundelkhand University, Jhansi; C.M.W.P. No

40247 of 2005, decided by Allahabad High Court on 02.03.2007)

Essential Commodities Act

S. 7(2), Proviso added by way of amendment – Authorising court to

impose punishment less than three months for special reasons to be recorded

- Whether prospective or retrospective. Held:

Unless specifically provided law has a prospective effect. So, at the

relevant point of time when the offence was committed by the appellant –

accused, the proviso cannot be said to be in existence. The Court, therefore, is not

inclined to show any leniency to the accused – appellant because it is not legally

possible for the Court to impose punishment less than the minimum prescribed.

(Patel Jagdish Haribhai v. State of Gujarat; 2007 Cri. L J 1297).

Evidence Act Recovered weapon not sent for forensic examination – Effect – Held,

If the recovery of the weapons was after a long period and those were not sent for

forensic examination that does not in any way dilute the evidentiary value of the

prosecution version. (Mano v. State of Tamil Nadu; Appeal (Crl.) 462 of 2007,

decided by Hon‘ble Supreme Court on 02.04.2007)

Whether dying declaration can be made the basis of conviction. – Held,

Though conviction can be raised solely on the dying declaration without any

corroboration the same should not be suffering from any infirmity. (State of

Rajasthan v. Wakteng; Appeal (crl.) 677 of 2002, decided by Hon‘ble


Whether statement recorded by a police personnel and having thumb

impression of the deceased falls within the category of dying declaration-

Held,

Merely because a statement is recorded by a police personnel and the

thumb impression of the deceased was affixed it cannot straightaway be rejected.

(See State of Rajasthan v. Teja Ram (1999 (3) SCC 507), Rajik Ram v. Jaswant

Singh Chauhan (AIR 1975 SC 667) and famous Tahsildar‘s case, Tahsildar Singh

v. State of U.P; (AIR 1959 SC 1012). In Paras Yadav and Ors. v. State of Bihar

(1999 (2) SCC 126) it was held that the statement of a deceased recorded by a

police officer in a routine manner as a complaint and not as a dying declaration

can be taken as a dying declaration after the death of the injured if he was found

to be in a fit state of health to make a statement. If the dying declaration is

recorded by an investigating officer the same can be relied upon if the evidence of

the prosecution witness is clearly established beyond reasonable doubt that the

deceased was conscious and he was removed to the hospital and he was in a fit

state of health to make the statement. In the instant case, the position appears to

be different. (State of Rajasthan v. Wakteng; Appeal (Crl.) 677 of 2002,

decided by Hon‘ble Supreme Court on 07/06/2007)

When dying declaration can be relied upon - Circumstance enumerated

by Hon‘ble Supreme Court;

While great solemnity and sanctity is attached to the words of dying man

because a person on the verge of death is not likely to tell lie or to concoct a case

so as to implicate an innocent person but the Court has to be careful to ensure that

the statement was not the result of either tutoring, prompting or a product of the

imagination. It is, therefore, essential that the Court must be satisfied that the

deceased was in a fit state of mind to make the statement, had clear capacity to

observe and identify the assailant and that he was making the statement without

any influence or rancor. Once the Court is satisfied that the dying declaration is

true and voluntary it is sufficient for the purpose of conviction. (State of

Rajasthan v. Wakteng; Appeal (Crl.) 677 of 2002, decided by Hon‘ble


Confession - Explained

The expression ‗confession‘ is not defined in the Evidence Act,

‗Confession‘ is a statement made by an accused, which must either admit in terms

the offence, or at any rate substantially all the facts, which constitute the offence.

The dictionary meaning of the word ‗statement‘ is ―act of stating; that which is

stated; a formal account, declaration of facts etc.‖ The word ‗statement‘ includes

both oral and written statement. Communication to another is not however an

essential component to constitute a ‗statement‘. An accused might have been

over-heard uttering to himself or saying to his wife or any other person in

confidence. He might have also uttered something in soliloquy. He might also

keep a note in writing. All the aforesaid nevertheless constitute a statement. It

such statement is an admission of guilt, it would amount to a confession whether

is communicated to another or not. This very question came up for consideration

before this Court in Sahoo v. State of Uttar Pradesh, AIR 1966 SC 40: (1966 Cr1

U 68). After referring to some passages written by well-known authors on the

―Law of Evidence‖ Subba Rao, J. (as he then was) held that ―communication is

not a necessary ingredient to constitute confession‖. In paragraph 5 of the

judgment, this Court held as follows:

...Admissions and confessions are exceptions to the hearsay rule.

The Evidence Act places them in the category of relevant evidence

presumably on the ground that as they are declarations against the

interest of the person making them, they are probably true. The

probative value of an admission or a confession goes not to depend

upon its communication to another, though, just like any other

piece of evidence, it can be admitted in evidence only on proof.

This proof in the case of oral admission or confession can be

offered only by witnesses who heard the admission or confession.

as the case may be.... If, as we have said, statement is the genus

and confession is only a sub-species of that genus, we do not see

any reason why the statement implied in the confession should be

given a different meaning. We, therefore, hold that a statement,

whether communicated or not, admitting guilt is a confession of

guilt

(Ajay Singh v. State of Maharashtra; Appeal (crl.) 829 of 2007,

Decided by Hon‘ble Supreme Court on 06/06/2007)

Extra Judicial Confession – Whether sufficient to base a conviction –

Held,

While dealing with a stand of extra judicial confession, Court has to

satisfy that the same was voluntary and without any coercion and undue

influence. Extra judicial confession can form the basis of conviction if persons

before whom it is stated to be made appear to be unbiased and not even remotely

inimical to the accused. Where there is material to show animosity, Court has to

proceed cautiously and find out whether confession just like any other evidence

depends on veracity of witness to whom it is made. It is not invariable that the

Court should not accept such evidence if actual words as claimed to have been

spoken are not reproduced and the substance is given. It will depend on

circumstance of the case. If substance itself is sufficient to prove culpability and

there is no ambiguity about import of the statement made by accused, evidence

can be acted upon even though substance and not actual words have been stated.

Human mind is not a tape recorder, which records what has been spoken word by

word. The witness should be able to say as nearly as possible actual words spoken

by the accused. That would rule out possibility of erroneous interpretation of any

ambiguous statement. If word-by-word repetition of statement of the case is

insisted upon, more often than not evidentiary value of extra judicial confession

has to be thrown out as unreliable and not useful. That cannot be a requirement in

law. There can be some persons who have a good memory and may be able to

repost exact words and there may be many who are possessed of normal memory

and do so. It is for the Court to judge credibility of the witness‘s capacity and

thereafter to decide whether his or her evidence has to be accepted or not. If Court

believes witnesses before whom confession is made and is satisfied confession

was voluntary basing on such evidence, conviction can be founded. Such

confession should be clear, specific and unambiguous. (Ajay Singh v. State of

Maharashtra; Appeal (Crl.) 829 of 2007, Decided by Hon‘ble Supreme Court

on 06/06/2007)

What transpired at the hearing, recorded in the judgment of the Court -

whether conclusive of the facts so stated – Held - Yes

Statements of fact as to what transpired at the hearing, recorded in the

judgment of the Court, are conclusive of the facts so stated and no one can

contradict such statements by affidavit or other evidence. If a party thinks that the

happenings in Court have been wrongly recorded in a judgment, it is incumbent

upon the party, while the matter is still fresh in the minds of the Judges, to call the

attention of the very Judge who has made the record. That is the only way to have

the record corrected. If no such step is taken, the matter must necessarily end

there. It is not open to the appellants to contend before this Court to the contrary.

(Jagvir Singh & Ors. v. State (Delhi Admn.); Appeal (Crl.), Decided by

Hon‘ble Supreme Court on 5.6.2007)

S. 3 – Appreciation of Evidence – (1) Whether variance in evidence as to

the role played by the accused persons is sufficient to disbelieve witness.

Held: No. (2) Principle of appreciation of evidence enumerated.

The golden thread which runs through the web of administration of justice

in criminal cases is that if two views are possible on the evidence adduced in the

case, one pointing to the guilt of the accused and the other to his innocence, the

view which is favourable to the accused should be adopted. The paramount

consideration of the Court is to ensure that miscarriage of justice is prevented. A

miscarriage of justice which may arise from acquittal of the guilty is no less than

from the conviction of an innocent. (State of Haryana v. Surender & Ors. etc.;

Appeal (Crl.) 618-620 of 2001, decided by Hon‘ble Supreme Court on

01/06/2007)

S. 9 – Identification parade – Identification in Court – Value – How to

appreciate identification evidence – Legal Position explained:

As was observed by this Court in Matru v. State of U.P. (1971 (2) SCC

75) identification tests do not constitute substantive evidence. They are primarily

meant for the purpose of helping the investigating agency with an assurance that

their progress with the investigation into the offence is proceeding on the right

lines. The identification can only be used as corroborative of the statement in

court. (See: Santokh Singh v. Izhar Hussain (1973 (2) SCC 406). The necessity

for holding an identification parade can arise only when the accused are not

previously known to the witnesses. The whole idea of a test identification parade

is that witnesses who claim to have seen the culprits at the time of occurrence are

to identify them from the midst of other persons without any aid or any other

source. The test is done to check upon their veracity. In other words, the main

object of holding an identification parade, during the investigation stage, is to test

the memory of the witnesses based upon first impression and also to enable the

prosecution to decide whether all or any of them could be cited as eyewitnesses of

the crime. The identification proceedings are in the nature of tests and

significantly, therefore, there is no provision for it in the Code and the Evidence

Act. It is desirable that a test identification parade should be conducted as soon as

after the arrest of the accused. This becomes necessary to eliminate the possibility

of the accused being shown to the witnesses prior to the test identification parade.

This is a very common plea of the accused and, therefore, the prosecution has to

be cautious to ensure that there is no scope for making such allegation. If,

however, circumstances are beyond control and there is some delay, it cannot be

said to be fatal to the prosecution.

It is trite to say that the substantive evidence is the evidence of

identification in Court. Apart from the clear provisions of Section 9 of the

Evidence Act, the position in law is well settled by a catena of decisions of this

Court. The facts, which establish the identity of the accused persons, are relevant

under Section 9 of the Evidence Act. As a general rule, the substantive evidence

of a witness is the statement made in Court. The evidence of mere identification

of the accused person at the trial for the first time is from its very nature

inherently of a weak character. The purpose of a prior test identification,

therefore, is to test and strengthen the trustworthiness of that evidence. It is

accordingly considered a safe rule of prudence to generally look for corroboration

of the sworn testimony of witnesses in Court as to the identity of the accused who

are strangers to them, in the form of earlier identification proceedings. This rule

of prudence, however, is subject to exceptions, when, for example, the Court is

impressed by a particular witness on whose testimony it can safely rely, without

such or other corroboration. The identification parades belong to the stage of

investigation, and there is no provision in the Code which obliges the

investigating agency to hold or confers a right upon the accused to claim, a test

identification parade. They do not constitute substantive evidence and these

parades are essentially governed by Section 162 of the Code. Failure to hold a test

identification parade would not make inadmissible the evidence of identification

in Court. The weight to be attached to such identification should be a matter for

the Courts of fact. In appropriate cases it may accept the evidence of identification

even without insisting on corroboration. [See Kanta Prashad v. Delhi

Administration (AIR 1958 SC 350), Vaikuntam Chandrappa and others v. State of

Andhra Pradesh (AIR 1960 SC 1340), Budhsen and another v. State of U.P. (AIR

1970 SC 1321) and Rameshwar Singh v. State of Jammu and Kashmir (AIR 1972

SC 102)].

In Jadunath Singh and another v. The State of Uttar Pradesh (1970) 3 SCC

518), the submission that absence of test identification parade in all cases is fatal,

was repelled by this Court after exhaustive considerations of the authorities on the

subject. That was a case where the witnesses had seen the accused over a period

of time. The High Court had found that the witnesses were independent witnesses

having no affinity with deceased and entertained no animosity towards the

appellant. They had claimed to have known the appellants for the last 6-7 years as

they had been frequently visiting the town of Bewar.

This Court noticed the observations in an earlier unreported decision of

this Court in Parkash Chand Sogani v. The State of Rajasthan (Criminal Appeal

No. 92 of 1956 decided on January 15, 1957), wherein it was observed :- ―It is

also the defence case that Shiv Lal did not know the appellant. But on a reading of

the evidence of P.W. 7 it seems to us clear that Shiv Lal knew the appellant by

sight. Though he made a mistake about his name by referring to him as Kailash

Chandra, it was within the knowledge of Shiv Lal that the appellant was a brother

of Manak Chand and he identified him as such. These circumstances are quite

enough to show that the absence of the identification parade would not vitiate the

evidence. A person who is well-known by sight as the brother of Manak Chand,

even before the commission of the occurrence, need not be put before an

identification parade in order to be marked out. We do not think that there is any

justification for the contention that the absence of the identification parade or a

mistake made as to his name, would be necessarily fatal to the prosecution case in

the circumstances.‖ The Court concluded:

―It seems to us that it has been clearly laid down by this Court, in

Parkash Chand Sogani v. The State of Rajasthan (supra) (AIR Cri

LJ), that the absence of test identification in all cases is not fatal

and if the accused person is well-known by sight it would be waste

of time to put him up for identification. Of course if the prosecution

fails to hold an identification on the plea that the witnesses already

knew the accused well and it transpires in the course of the trial

that the witnesses did not know the accused previously, the

prosecution would run the risk of losing its case.‖

In Harbajan Singh v. State of Jammu and Kashmir (1975) 4 SCC 480),

though a test identification parade was not held, this Court upheld the conviction

on the basis of the identification in Court corroborated by other circumstantial

evidence. In that case it was found that the appellant and one Gurmukh Singh

were absent at the time of roll call and when they were arrested on the night of

16th

December, 1971 their rifles smelt of fresh gunpowder and that the empty

cartridge case which was found at the scene of offence bore distinctive markings

showing that the bullet which killed the deceased was fired from the rifle of the

appellant. Noticing these circumstances this Court held:- ―In view of this

corroborative evidence we find no substance in the argument urged on behalf of

the appellant that the Investigating Officer ought to have held an identification

parade and that the failure of Munshi Ram to mention the names of the two

accused to the neighbours who came to the scene immediately after the

occurrence shows that his story cannot be true.

As observed by this Court in Jadunath Singh v. State of U.P. (AIR 1971

SC 363) absence of test identification is not necessarily fatal. The fact that

Munshi Ram did not disclose the names of the two accused to the villages only

shows that the accused were not previously known to him and the story that the

accused referred to each other by their respective names during the course of the

incident contains an element of exaggeration. The case does not rest on the

evidence of Munshi Ram alone and the corroborative circumstances to which we

have referred to above lend enough assurance to the implication of the appellant.‖

It is no doubt true that much evidentiary value cannot be attached to the

identification of the accused in Court where identifying witness is a total stranger

who had just a fleeting glimpse of the person identified or who had no particular

reason to remember the person concerned, if the identification is made for the first

time in Court.

In Ram Nath Mahto v. State of Bihar (1996) 8 SCC 630) this Court upheld

the conviction of the appellant even when the witness while deposing in Court did

not identify the accused out of fear, though he had identified him in the test

identification parade. This Court noticed the observations of the trial Judge who

had recorded his remarks about the demeanour that the witness perhaps was afraid

of the accused as he was trembling at the stare of Ram Nath-accused. This Court

also relied upon the evidence of the Magistrate, PW-7 who had conducted the test

identification parade in which the witness had identified the appellant. This Court

found, that in the circumstances if the Courts below had convicted the appellant,

there was no reason to interfere.

In Suresh Chandra Bahri v. State of Bihar (1995 Supp (1) SCC 80), this

Court held that it is well settled that substantive evidence of the witness is his

evidence in the Court but when the accused person is not previously known to the

witness concerned then identification of the accused by the witness soon after his

arrest is of great importance because it furnishes an assurance that the

investigation is proceeding on right lines in addition to furnishing corroboration

of the evidence to be given by the witness later in Court at the trial. From this

point of view it is a matter of great importance, both for the investigating agency

and for the accused and a fortiori for the proper administration of justice that such

identification is held without avoidable and unreasonable delay after the arrest of

the accused. It is in adopting this course alone that justice and fair play can be

assured both to the accused as well as to the prosecution. Thereafter this Court

observed:- ―But the position may be different when the accused or a culprit who

stands trial had been seen not once but for quite a number of times at different

point of time and places which fact may do away with the necessity of a TI

parade.‖

In State of Uttar Pradesh v. Boota Singh and others (1979 (1) SCC 31),

this Court observed that the evidence of identification becomes stronger if the

witness has an opportunity of seeing the accused not for a few minutes but for

some length of time, in broad daylight, when he would be able to note the features

of the accused more carefully than on seeing the accused in a dark night for a few

minutes.

In Ramanbhai Naranbhai Patel and others v. State of Gujarat (2000 (1)

SCC 358) after considering the earlier decisions this Court observed:- ―It becomes

at once clear that the aforesaid observations were made in the light of the peculiar

facts and circumstances wherein the police is said to have given the names of the

accused to the witnesses. Under these circumstances, identification of such a

named accused only in the Court when the accused was not known earlier to the

witness had to be treated as valueless. The said decision, in turn, relied upon an

earlier decision of this Court in the case of State (Delhi Admn.) v. V. C. Shukla

(AIR 1980 SC 1382) wherein also Fazal Ali, J. speaking for a three-Judge Bench

made similar observations in this regard. In that case the evidence of the witness

in the Court and his identifying the accused only in the Court without previous

identification parade was found to be a valueless exercise. The observations

made therein were confined to the nature of the evidence deposed to by the said

eye-witnesses. It, therefore, cannot be held, as tried to be submitted by learned

Counsel for the appellants, that in the absence of a test identification parade, the

evidence of an eye-witness identifying the accused would become inadmissible or

totally useless; whether the evidence deserves any credence or not would always

depend on the facts and circumstances of each case. It is, of course, true as

submitted by learned Counsel for the appellants that the later decisions of this

Court in the case of Rajesh Govind Jagesha v. State of Maharashtra (AIR 2000

SC 160) and State of H.P. v. Lekh Raj (AIR 1999 SC 3916), had not considered

the aforesaid three-Judge Bench decisions of this Court. However, in our view,

the ratio of the aforesaid later decisions of this Court cannot be said to be running

counter to what is decided by the earlier three-Judge Bench judgments on the

facts and circumstances examined by the Court while rendering these decisions.

But even assuming as submitted by learned Counsel for the appellants that the

evidence of, these two injured witnesses i.e. Bhogilal Ranchhodbhai and

Karsanbhai Vallabhbhai identifying the accused in the Court may be treated to be

of no assistance to the prosecution, the fact remains that these eye-witnesses were

seriously injured and they could have easily seen the faces of the persons

assaulting them and their appearance and identity would well within imprinted in

their minds especially when they were assaulted in broad daylight. They could not

be said to be interested in roping in innocent persons by shielding the real accused

who had assaulted them.‖

These aspects were recently highlighted in Munshi Singh Gautam (dead)

and Ors. v. State of M.P. ( 2005 (9) SCC 631).17. In the instant case the accused

persons have been identified by PWs 1 and 11 and no infirmity was noticed in

their evidence. Additionally, evidence of PW 22 clearly shows that all requisite

formalities with regard to Test Identification Parade were adopted and followed.

In that view of the matter there is no merit in the appeal which is accordingly

dismissed. (Heera & Anr v. State of Rajasthan; Appeal (Crl.) 1307 of 2006,


Family Law / Matrimonial Disputes

Burden of Proof in Matrimonial Cases – Concept of Proof beyond

reasonable doubt – whether applicable to Matrimonial Dispute – Held: No.

The concept, a proof beyond the shadow of doubt, is to be applied to

criminal trials and not to civil matters and certainly not to matters of such delicate

personal relationship as those of husband and wife. Therefore, one has to see what

are the probabilities in the case and legal cruelty has to be found out, not merely

as a matter of fact, but as the effect on the mind of the complainant spouse

because of the acts or omissions of the other. Cruelty may be physical or

corporeal or may be mental. In physical cruelty, there can be tangible and direct

evidence, but in the case of mental cruelty there may not at the same time be

direct evidence. In cases where there is no direct evidence courts are required to

probe into the mental process and mental effect of incidents that are brought out

in evidence. It is in this view that one has to consider the evidence in matrimonial

matters. (Smt. Mayadevi v. Jagdish Prasad; Civil Appeal No. 877 of 2007,

decided by Hon‘ble Supreme Court on 21.2.2007 = AIR 2007 S.C. 1426)

Guardians and Wards Act

S. 30 – Transfer of immovable property of ward Guardian - Previous

permission of ―Court not taken - Transfer would be viodable

In the plaint, allegations were that mother of the plaintiff was appointed as

guardian by the District Judge. Under S. 29 of Guardians and Wards Act, 1890, a

guardian appointed or declared by the Court shall not without the previous

permission of the Court, transfer immovable property of his ward. However,

under S. 30 of the said Act. Accordingly, if the plaint allegations are proved then

sale deeds will the voidable. In view of the above, it is only the Civil Court which

has got the jurisdiction to try the suits. (Abdul Qayyum v. II Additional District

Judge Meerut & Ors. 2007 (2) ALJ 332)

Hindu Marriage Act S. 27 – Whether Stridhan falls under S. 27 – Held, No.

Section 27 is not meant for Stridhan and is meant for those items only

which are presented jointly to the bride and bride groom. Section 27 of Hindu

Marriage Act is not applicable to Stridhans, which are different from the items

mentioned under section 27 of the Hindu Marriage Act. (Satish Rajput,

Advocate & Others v. State of U.P. & Another; Application U/s. 482 No.

12467 of 2007, decided by Allahabad High Court on 04.06.2007)

Hindu Minority and Guardianship Act

S. 8 - Permission by guardian to sell landed property of minor. Market value

of land assessed to be Rs. 2,00,000 per acer. Proposed sale was in the interest of

minor – permission granted to sale at the rate of not less than Rs. 2,00,000/- per

acer. (Gobinder Singh v. General Public, AIR 2007 (NOC) 792 (P&H)

Indian Penal Code Ss. 302, 498A IPC and Ss. 3, 4 and 6 of the Dowry Prohibition Act, 1961 -

To constitute offence under S. 498-A whether it is necessary that the demand

should be for dowry alone – Held - No

Section 498-A does not specifically speak of a dowry demand. It speaks of

unlawful demand for property and valuable articles.

Section 498-A IPC was enacted by the Criminal Law (Second

Amendment) 1983 with effect from 25.12.1983. The word ―cruelty‖ has been

explained in Section 498-A; so also harassment. ―Cruelty‖ under the Explanation

deals with two types of circumstances. Clause (a) refers to willful conduct leading

to suicide or grave injury or danger to life, limb or health which can be either

mental or physical of the woman. Clause (b) relates to harassment with a view to

coerce her or any person related to her to meet any unlawful demand for any

property or valuable or is on account of failure to meet such demand.

There is no evidence on record on this aspect of any such demand. Even in

the letters, on which prosecution placed heavy reliance, there is no reference to

any demand of dowry or for that matter of any nature. In fact in Ex. P-2, the

deceased had written to her mother that she had promised to pay for some articles

which the mother-in-law i.e. A-1 had purchased. She had stated that she was

embarrassed that her parents were not paying the money, though A-1 had never

asked for it. This was not a case of any demand for property or valuable security.

On the contrary, the deceased had objected to her parents not paying for

something which the A-1 had spent the money. To similar effect was letter Ex.P-

3. It is evident from the evidence on record that half of the marriage expenses

were borne by the accused-appellant and his family. Even Ext. P-4 on which

learned counsel for the State placed strong reliance does not speak of any demand.

It only speaks of a apprehension of a second marriage. Though, he submitted that

the demand of dowry is in the background and has to be inferred, the plea is

clearly unacceptable in the absence of any material to substantiate that plea. This

letter was also written three years prior to the occurrence. (Shivanand Mallappa

Koti v. State of Karnataka; Appeal (Crl.) 145 of 2002, Decided by Hon‘ble

Supreme Court on 5.6.2007.

S. 302 & 304A – Applicability of S. 304A & 302 explained:

Coming to the plea of the applicability of Section 304A it is to be noted

that the said provision relates to death caused by negligence. Section 304A

applies to cases where there is no intention to cause death and no knowledge that

the act done in all probabilities will cause death. The provision relates to offences

outside the range of Sections 299 and 300 IPC. It applies only to such acts, which

are rash and negligent and are directly the cause of death of another person.

Rashness and negligence are essential elements under Section 304A. It carves out

a specific offence where death is caused by doing a rash or negligent act and that

act does not amount to culpable homicide under Section 299 or murder in Section

300 IPC. Doing an act with the intent to kill a person or knowledge that doing an

act was likely to cause a persons‘ death is culpable homicide. When the intent or

knowledge is the direct motivating force of the act, Section 304A IPC has to make

room for the graver and more serious charge of culpable homicide.

In order to be encompassed by the protection under Section 304A there

should be neither intention nor knowledge to cause death. When any of these two

elements is found to be present, Section 304A has no application.

Coming to the plea of the applicability of Section 304A it is to be noted

that the said provision relates to death caused by negligence. Section 304A

applies to cases where there is no intention to cause death and no knowledge that

the act done in all probabilities will cause death. The provision relates to offences

outside the range of Sections 299 and 300 IPC. It applies only to such acts which

are rash and negligent and are directly the cause of death of another person.

Rashness and negligence are essential elements under Section 304A. It carves out

a specific offence where death is caused by doing a rash or negligent act and that

act does not amount to culpable homicide under Section 299 or murder in Section

300 IPC. Doing an act with the intent to kill a person or knowledge that doing an

act was likely to cause a persons‘ death is culpable homicide. When the intent or

knowledge is the direct motivating force of the act, Section 304A IPC has to make

room for the graver and more serious charge of culpable homicide.

In order to be encompassed by the protection under Section 304A there

should be neither intention nor knowledge to cause death. When any of these two

elements is found to be present, Section 304A has no application. (State of

Rajasthan v. Chittarmal; Appeal (Crl.) 477 of 2001, Decided by Hon‘ble


S. 304A & S. 304 Part II IPC – Analysed//Scope and applicability of S.

304 Part II and 304A IPC explained:

Section 304A speaks of causing death by negligence. This section applies

to rash and negligence acts and does not apply to cases where death has been

voluntarily caused. This section obviously does not apply to cases where there is

an intention to cause death or knowledge that the act will in all probability cause

death. It only applies to cases in which without any such intention or knowledge

death is caused by what is described as a rash and negligent act. A negligent act

is an act done without doing something which a reasonable man guided upon

those considerations which ordinarily regulate the conduct of human affairs would

do or act which a prudent or reasonable man would not do in the circumstances

attending it. A rash act is a negligent act done precipitately. Negligence is the

genes, of which rashness is the species. It has sometimes been observed that in

rashness the action is done precipitately that the mischievous or illegal

consequences may fall, but with a hope that they will not. Lord Atkin in Andrews

v. Director of Public Prosecutions (1937) AC 576 at p.583 = 2 All E.R. 552)

observed as under:

―Simple lack of care such as will constitute civil liability is not

enough. For purposes of the criminal law there are degrees of

negligence; and a very high degree of negligence is required to be

proved before the felony is established. Probably of all the epithets

that can be applied ‗recklessness‘ most nearly covers the case. It is

difficult to visualize a case of death caused by reckless driving in

the connotation of that term in ordinary speech which would not

justify a conviction for manslaughter; but it is probably not all

embracing, for ‗recklessness‘ suggests an indifference to risk

whereas the accused may have appreciated the risk and intended to

avoid it, and yet shown in the means adopted to avoid the risk such

a high degree of negligence as would justify a conviction.‖

Section 304-A applies to cases where there is no intention to cause death

and no knowledge that the act done in all probability will cause death. The

provision is directed at offences outside the range of Sections 299 and 300 IPC.

The provision applies only to such acts which are rash and negligent and are

directly cause of death of another person. Negligence and rashness are essential

elements under Section 304-A. Culpable negligence lies in the failure to exercise

reasonable and proper care and the extent of its reasonableness will always

depend upon the circumstances of each case. Rashness means doing an act with

the consciousness of a risk that evil consequences will follow but with the hope

that it will not. Negligence is a breach of duty imposed by law. In criminal cases,

the amount and degree of negligence are determining factors. A question whether

the accused‘s conduct amounted to culpable rashness or negligence depends

directly on the question as to what is the amount of care and circumspection

which a prudent and reasonable man would consider to be sufficient considering

all the circumstances of the case. Criminal rashness means hazarding a dangerous

or wanton act with the knowledge that it is dangerous or wanton and the further

knowledge that it may cause injury but done without any intention to cause injury

or knowledge that it would probably be caused.

As noted above, ―Rashness‖ consists in hazarding a dangerous or wanton

act with the knowledge that it is so, and that it may cause injury. The criminality

lies in such a case in running the risk of doing such an act with recklessness or

indifference as to the consequences. Criminal negligence on the other hand, is the

gross and culpable neglect or failure to exercise that reasonable and proper care

and precaution to guard against injury either to the public generally or to an

individual in particular, which, having regard to all the circumstances out of

which the charge has arisen it was the imperative duty of the accused person to

have adopted.The distinction has been very aptly pointed out by Holloway J. in

these words:

―Culpable rashness is acting with the consciousness that the

mischievous and illegal consequences may follow, but with the

hope that they will not, and often with the belief that the actor has

taken sufficient precautions to prevent their happening. The

imputability arises from acting despite the consciousness. Culpable

negligence is acting without the consciousness that the illegal and

mischievous effect will follow, but in circumstances which show

that the actor has not exercised the caution incumbent upon him

and that if he had, he would have had the consciousness. The

imputability arises from the negligence of the civic duty of

circumspection.‖ (See In re: Nidamorti Nagabhusanam 7 Mad.

H.C.R. 119)

Vehicular accidents resulting in deaths and injuries are spiraling. The

situation in India is not very different.About 82,000 persons were killed on Indian

roads in 2002. Official statistics regarding serious injuries are not reliable as they

underestimate the actual number, but it is estimated that the number of people

hospitalized may be 15-20 times the number killed. In a do-nothing scenario, it is

possible that India will have 1,20,000 - 1,30,000 road traffic fatalities in the year

2008 and possibly 1,50,000 - 1,75,000 in 2015. Our vision should aim at reducing

the fatalities to less than 1,00,000 in the short term (2008) and less than 70,000 in

the long term (2015).

In developing countries, death rates from vehicle crashes are rising, and

disproportionately high in relation to the number of crashes. According to a report

published in 2000 developing and transitional countries cumulatively represent

over 85 percent of all road traffic deaths. Kenya has nearly 2,000 fatalities per

10,000 crashes. Vietnam has over 3,000 fatalities per 10,000 crashes. 44% of all

road traffic deaths occur in the Asia/Pacific area, which only has 16 % of the total

number of motor vehicles.

―At 71,495 and 59,927 total deaths, China and India, respectively,

had the highest number of road fatalities in the world in 1995.:

Pedestrian deaths represent 62 % of all traffic fatalities in Lebanon.

In most developing countries vulnerable road users, including

pedestrians, bicycle and motor cycle riders, account for the

majority of all fatalities: Eastern European countries represent 6%

of motor vehicles, but 11% of crash fatalities worldwide‖. The

Latin America/Caribbean region has the second highest crash costs

behind Asia. As vehicle use in developing countries are increasing,

road traffic injuries are expected to become the third leading cause

of death and disability worldwide by 2020. In developing

countries, each vehicle is much more lethal than the vehicles in

developed countries, because it most frequently takes the lives not

of vehicle occupants, but of vulnerable road users: pedestrians,

cyclists. Many developing countries are increasing the rate of

motorized vehicle use at up to 18% per year. In India, for example,

there has been a 23% increase in the number of vehicles from

1990-1999 and a 60-fold increase is predicted by 2050.

The human loss in such accidents is tragic. Survivors and family members

are affected not only by an immediate death or disability, but also lifetime

psychological and physical suffering. Crashes often result in orphans, and some

victims, as young as infants, spend the rest of their lives with medical facilities.

Proven interventions for developed countries require research,

modification, and testing for developing countries. For example, developing

countries face poorly designed and maintained roadways, unsafe vehicles, drivers

under the influence of drugs or alcohol, lack of national policies, and inadequate

enforcement. Success will require significant new resources supported by

sustained political commitment.

When the factual scenario of the present case is analysed, it is crystal clear

that the appropriate conviction would be under Section 304 A IPC and not Section

304 Part II IPC. Conviction is accordingly altered. The maximum sentence which

can be imposed for offence punishable under Section 304A is two years with fine

or with both. The custodial sentence, therefore, is reduced to the maximum i.e.

two years. (Prabhakaran v. State of Kerala; Appeal (Crl.) 775 of 2005,


S. 397IPC – Whether to attract S. 397 IPC, it is necessary that grievous

hurt should have been caused as a result of assault – held - No

Any hurt which endangers life is a grievous hurt. It would be seen that

one of the injuries was caused just below the nipple. The term endangers life is

much stronger than the expression dangerous to life. Apart from that in the

provision attempt to cause grievous hurt attracts its application. The question

whether the accused attempted to cause death or grievous hurt would depend upon

the factual scenario. In the instant case knife blow was given on the chest just

below the nipple. Considering the place where injury was inflicted i.e. on the

chest the High Court was right in its view about the applicability of Section 397

IPC. (Niranjan Singh v. State of Madhya Pradesh; Appeal (Crl.) 487 of 2001,

Decided on 14/06/2007)

S. 84 – Plea of Insanity - When under Section 84 IPC, a person can be

exonerated from liability - Held:

Under Section 84 IPC, a person is exonerated from liability for doing an

act on the ground of unsoundness of mind if he, at the time of doing the act, is

either incapable of knowing (a) the nature of the act, or (b) that he is doing what is

either wrong or contrary to law. The accused is protected not only when, on

account of insanity, he was incapable of knowing the nature of the act, but also

when he did not know either that the act was wrong or that it was contrary to law,

although he might know the nature of the act itself. He is, however, not protected

if he knew that what he was doing was wrong, even if he did not know that it was

contrary to law, and also if he knew that what he was doing was contrary to law

even though he did not know that it was wrong. The onus of proving unsoundness

of mind is on the accused. But where during the investigation previous history of

insanity is revealed, it is the duty of an honest investigator to subject the accused

to a medical examination and place that evidence before the Court and if this is

not done, it creates a serious infirmity in the prosecution case and the benefit of

doubt has to be given to the accused. The onus, however, has to be discharged by

producing evidence as to the conduct of the accused shortly prior to the offence

and his conduct at the time or immediately afterwards, also by evidence of his

mental condition and other relevant factors. Every person is presumed to know

the natural consequences of his act. Similarly every person is also presumed to

know the law. The prosecution has not to establish these facts.

There are four kinds of persons who may be said to be non-compos mentis

(not of sound mind), i.e., (1) an idiot; (2) one made non-compos by illness (3) a

lunatic or a mad man and (4.) one who is drunk. An idiot is one who is of non-

sane memory from his birth, by a perpetual infirmity, without lucid intervals; and

those are said to be idiots who cannot count twenty, or tell the days of the week,

or who do not know their fathers or mothers, or the like, (See Archbold‘s

Criminal Pleadings, Evidence and Practice, 35th

Edn. pp.31-32; Russell on Crimes

and Misdemeanors, 12th

Edn. Vol., p.105; 1 Hala‘s Pleas of the Grown 34). A

person made non-compos men-us by illness is excused in criminal cases from

such acts as are-committed while under the influence of his disorder, (See 1 Hale

PC 30). A lunatic is one who is afflicted by mental disorder only at certain periods

and vicissitudes, having intervals of reason, (See Russell, 12 Edn. Vol. 1, p. 103;

Hale PC 31). Madness is permanent. Lunacy and madness are spoken of as

acquired insanity, and idiocy as natural insanity.

Section 84 embodies the fundamental maxim of criminal law, i.e., actus

non reum facit nisi mens sit rea‖ (an act does not constitute guilt unless done with

a guilty intention). In order to constitute an offence, the intent and act must

concur; but in the case of insane persons, no culpability is fastened on them as

they have no free will (furios is nulla voluntas est).

The section itself provides that the benefit is available only after it is

proved that at the time of committing the act, the accused was labouring under

such a defect of reason, from disease of the mind, as not to know the nature and

quality of the act he was doing, or that even if he did not know it, it was either

wrong or contrary to law then this section must be applied. The crucial point of

time for deciding whether the benefit of this section should be given or not, is the

material time when the offence takes place. In coming to that conclusion, the

relevant circumstances are to be taken into consideration, it would be dangerous

to admit the: defence of insanity upon arguments derived merely from the

character of the crime. It is only unsoundness of mind which naturally impairs the

cognitive faculties of the mind that can form a ground of: exemption from

criminal responsibility. Stephen in ‗History of the Criminal Law of England, Vo.

II, page 166 has observed that if a persons cut off the head of a sleeping man

because it would be great fun to see him looking for it when he woke up, would

obviously be a case where the perpetrator of the act would be incapable of

knowing the physical effects of his act. The law recognizes nothing but incapacity

to realise the nature of the act and presumes that where a man‘s mind or his

faculties of ratiocination are sufficiently dim to apprehend what he is doing, he

must always be presumed to intend the consequence of the action he takes. Mere

absence of motive for a crime, howsoever atrocious it may be, cannot in the

absence of plea and proof of legal insanity, bring the case within this section This

Court in Sherall Walli Mohammed v. State of Maharashtra: (1972 Cr.LJ 1523

(SC)), held that the mere fact that no motive has been proved why the accused

murdered his wife and child or the fact that he made no attempt to run away when

the door was broken open would not indicate that he was insane or that he did not

have necessary mens rea for the offence. Mere abnormality of mind or partial

delusion, irresistible impulse or compulsive behaviour of a psychopath affords no

protection under Section 84 as the law contained in that section is still squarely

based on the outdated Naughton rules of 19th

Century England. The provisions of

Section 84 are in substance the same as that laid down in the answers of the

Judges to the questions put to them by the House of Lords, in M Naughton‘s case.

(1843) 4 St. Tr. (NS) 847. Behaviour, antecedent, attendant and subsequent to the

event, may be relevant in finding the mental condition of the accused at the time

of the event, but not that remote in time. It is difficult to prove the precise state of

the offender‘s mind at the time of the commission of the offence, but some

indication thereof is often furnished by the conduct of the offender while

committing it or immediately after the commission of the offence. A lucid interval

of an insane person is not merely a cessation of the violent symptoms of the

disorder, but a restoration of the faculties of the mind sufficiently to enable the

person soundly to judge the act; but the expression does not necessarily mean

complete or prefect restoration of the mental faculties to their original condition.

So, if there is such a restoration, the person concerned can do the act with such

reason, memory and judgment as to make it a legal act; but merely a cessation of

the violent symptoms of the disorder is not sufficient.

The standard to be applied is whether according to the ordinary standard,

adopted by reasonable men, the act was right or wrong. The mere fact that an

accused is conceited, odd irascible and his brain is not quite all right, or that the

physical and mental ailments from which he suffered had rendered his intellect

weak and had affected his emotions and will, or that he had committed certain

unusual acts, in the past or that he was liable to recurring fits of insanity at short

intervals, or that he was subject to getting epileptic fits but there was nothing

abnormal in his behaviour, or that his behaviour was queer, cannot be sufficient to

attract the application of this section.. (Bapu @ Gajraj Singh v. State of

Rajasthan; Appeal (crl.) 1313 of 2006, Decided by Hon‘ble Supreme Court

on 04/06/2007)

Essential of the offence of Abatement to commit suicide - Whether mere

cruelty towards wife is sufficient to prove the offence punishable u/s 306

I.P.C. - Held;

Section 107 IPC defines abetment of a thing. The offence of abetment is a

separate and distinct offence provided in the Act as an offence. A person, abets

the doing of a thing when (1) he instigates any person to do that thing; or (2)

engages with one or more other persons in any conspiracy for the doing of that

thing; or (3) intentionally aids, by act or illegal omission, the doing of that thing.

These things are essential to complete abetment as a crime. The word ―instigate‖

literally means to provoke, incite, urge on or bring about by persuasion to do any

thing. The abetment may be by instigation, conspiracy or intentional aid, as

provided in the three clauses of Section 107. Section 109 provides that if the act

abetted is committed in consequence of abetment and there is no provision for the

punishment of such abetment, then the offender is to be punished with the

punishment provided for the original offence. ‗Abetted‘ in Section 109 means the

specific offence abetted. Therefore, the offence for the abetment of which a

person is charged with the abetment is normally linked with the proved offence.

In cases of alleged abetment of suicide there must be proof of direct or

indirect acts of incitement to the commission of suicide. The mere fact that the

husband treated the deceased-wife with cruelty is not enough. [See Mahinder

Singh v. State of M.P. (1995 AIR SCW 4570)]. Merely on the allegation of

harassment conviction in terms of Section 306 IPC is not sustainable. There is

ample evidence on record that the deceased was disturbed because she had not

given birth to any child. PWs. 8, 10, and 11 have categorically stated that the

deceased was disappointed due to the said fact and her failure to beget a child and

she was upset due to this. (Kishori Lal v. State of M.P.; Appeal (Crl.) 1115 of

1999; Date of Judgment: 19/06/2007)

Indian Succession Act Will – Whether attestation by two or more witnesses can be dispensed

with. Held: No.

It is necessary that signature of attesting witness have to be made

simultaneously in presence of each other. (Sri Pratap Bhattacharya v. Sri

Ashok Bhattacharya; AIR 2007 (NOC) 893 Cal.)

Interpretation of Statutes

The rule of appropriation in execution of money decrees – Explained:

We are of the view that the normal rule that in case of a debt due with

interest, any payment made by the debtor, in the first instance, is to be

appropriated towards the satisfaction of interest and thereafter towards principal,

subject to a contract to the contrary, is not excluded by the provisions of the Act.

The normal principle is embedded on the basis of Section 60 of the Indian

Contract Act, 1872. It is also indicated in Order XXI Rule 1(3)(c) of the Code.

(Gurpreet Singh v. Union of India, Appeal (civil) 4570/2006, decided by

Constitutional Bench of Hon‘ble Supreme Court on 19.10.2006)

Co-operative Societies Acts - Recovery of Debts Due to Banks and

Financial Institutions Act, 1993 – Whether such Co-operative Banks would

have right of recovery under the respective Co-operatives Societies Acts or

they will have to proceed under 1993 Act. Scope & Interpretation of Acts

explained.

The Recovery of Debts Due to Banks and Financial Institutions Act,

1993[‘the RDB Act‘] was enacted by the Parliament with the objects and reasons

for the recovery of the debts due to the banks. Before the coming into force of the

RDB Act, the banks were approaching Civil Courts for recovery of their debts

from the defaulters by filing civil suits before the Civil Courts of competent

jurisdiction. After the coming into force of the RDB Act on the 25th day of June

1993, the jurisdiction of the Civil Courts was taken away. The decision to have

separate Bank Tribunals was taken by the Central Government after considering

the increasing workload of the Civil Courts and delay in disposal of the bank

suits. The Statement of Objects and Reasons for the enactment of the RDB Act

are that the banks and financial institutions at present experience considerable

difficulties in recovering loans and enforcement of securities charged with them.

The existing procedure for recovery of debts due to the banks and financial

institutions has blocked a significant portion of their funds in unproductive assets,

the value of which deteriorates with the passage of time. The Committee on the

financial system headed by Shri M. Narasimham has considered the setting up of

the Special Tribunals with special powers for adjudication of such matters and

speedy recovery as critical to the successful implementation of the financial sector

reforms. An urgent need was, therefore, felt to work out a suitable mechanism

through which the dues to the banks and financial institutions could be realized

without delay. In 1981, a Committee under the Chairmanship of Shri T. Tiwari

had examined the legal and other difficulties faced by banks and financial

institutions and suggested remedial measures including changes in law. The

Tiwari Committee had also suggested setting up of Special Tribunals for recovery

of dues of the banks and financial institutions by following a summary procedure.

The setting up of Special Tribunals will not only fulfill a long-felt need, but also

will be an important step in the implementation of the Report of Narasimham

Committee. Whereas on 30th September, 1990 more than fifteen lakhs of cases

filed by the public sector banks and about 304 cases filed by the financial

institutions were pending in various Courts, recovery of debts involved more than

Rs.5622 crores in dues of Public Sector Banks and about Rs.391 crores of dues of

the financial institutions. The locking up of such huge amount of public money in

litigation prevents proper utilization and re-cycling of the funds for the

development of the country.

The distinction between peoples‘ co-operative banks serving their

members and corporate banks doing commercial transactions is fundamental to

the constitutional dispensation and understanding co-operative banking generally

and in the context of cooperative banking not coming under the ambit of the BR

Act. Thus, even if the co-operatives are involved in the activity of banking which

involves lending and borrowing, this is purely incidental to their main co-

operative activity which is a function in public domain.

It is well-settled that the language of the Statutes is to be properly

understood. The usual presumption is that the Legislature does not waste its

words and it does not commit a mistake. It is presumed to know the law, judicial

decisions and general principles of law. The elementary rule of interpretation of

the Statute is that the words used in the Section must be given their plain

grammatical meaning. Therefore, we cannot afford to add any words to read

something into the Section, which the Legislature had not intended.

The provisions of the Recovery of Debts Due to Banks and Financial

Institutions Act, 1993 [RDB Act] by invoking the Doctrine of Incorporation are

not applicable to the recovery of dues by the co-operatives from their members.

The field of co-operative societies cannot be said to have been covered by the

Central Legislation by reference to Entry 45, List I of the Seventh Schedule of the

Constitution. Co-operative Banks constituted under the Co-operative Societies

Acts enacted by the respective States would be covered by co-operative societies

by Entry 32 of List II of Seventh Schedule of the Constitution of India. (Greater

Bombay Co-op. Bank Ltd v. M/s United Yarn Tex. Pvt. Ltd. & Ors; Appeal

(civil) 432 of 2004, Date of Judgment: 04/04/2007)

Interpretation of Statutes - Whether Court can legislate or amend the

law.; Held- No.

No doubt Parliament can abolish the death sentence by deleting it as one

of the punishments prescribed in the I.P.C or other statutes, but this Court cannot

do so. The Court cannot legislate or amend the law. There is broad separation of

powers under the Constitution and this Court must not ordinarily encroach into

the legislative or executive domain as held by us in Indian Drugs &

Pharmaceuticals Ltd. Vs. The Workman of Indian Drugs & Pharmaceuticals Ltd.

2007(1) SCC 408. (Swamy Sharaddanandea @ Murali Monahar Mishra v.

State of Karnataka; Appeal (Crl.) 454 of 2006, Decided by Hon‘ble Supreme

Court on 18.05.2007)

Failure to give reasons in support of judgment/order/ Admn. Order –

effect –Makes the judgment/ order/Admn. Order not sustainable

Reasons introduce clarity in an order. On plainest consideration of justice,

the High Court ought to have set forth its reasons, howsoever brief, in its order

indicative of an application of its mind, all the more when its order is amenable to

further avenue of challenge. The absence of reasons has rendered the High

Court‘s judgment not sustainable.

Even in respect of administrative orders Lord Denning M.R. in Breen v.

Amalgamated Engineering Union (1971 (1) All E.R. 1148) observed ―The giving

of reasons is one of the fundamentals of good administration‖. In Alexander

Machinery (Dudley) Ltd. v. Crabtree (1974 LCR 120) it was observed:

―Failure to give reasons amounts to denial of justice‖. Reasons are

live links between the mind of the decision taker to the controversy

in question and the decision or conclusion arrived at‖. Reasons

substitute subjectivity by objectivity. The emphasis on recording

reasons is that if the decision reveals the ―inscrutable face of the

sphinx‖, it can, by its silence, render it virtually impossible for the

Courts to perform their appellate function or exercise the power of

judicial review in adjudging the validity of the decision. Right to

reasons is an indispensable part of a sound judicial system, reasons

at least sufficient to indicate an application of mind to the matter

before Court. Another rationale is that the affected party can know

why the decision has gone against him. One of the salutary

requirements of natural justice is spelling out reasons for the order

made, in other words, a speaking out. The ―inscrutable face of a

sphinx‖ is ordinarily incongruous with a judicial or quasi-judicial

performance.

(Daya Ram v. Raghunath & Ors Appeal (civil) 2900 of 2007, Decided on

15/06/2007)

Different stages that occur when an award is passed and scope for

reopening of the appropriation already made pursuant to the award

discussed and explained.

On the scheme of the Act, it is seen that the award of compensation is at

different stages. The first stage occurs when the award is passed. Obviously, the

award takes in all the amounts contemplated by Section 23(1) of the Act, Section

23(1A) of the Act, Section 23(2) of the Act and the interest contemplated by

Section 34 of the Act. The whole of that amount is paid or deposited by the

Collector in terms of Section 31 of the Act. At this stage, no shortfall in deposit is

contemplated, since the Collector has to pay or deposit the amount awarded by

him. If a shortfall is pointed out, it may have to be made up at that stage and the

principle of appropriation may apply, though it is difficult to contemplate a partial

deposit at that stage. On the deposit by the Collector under Section 31 of the Act,

the first stage comes to an end subject to the right of the claimant to notice of the

deposit and withdrawal or acceptance of the amount with or without protest.

The second stage occurs on a reference under Section 18 of the Act.

When the reference Court awards enhanced compensation, it has necessarily to

take note of the enhanced amounts payable under Section 23(1), Section 23(1A),

Section 23(2) and interest on the enhanced amount as provided in Section 28 of

the Act and costs in terms of Section 27. The Collector has the duty to deposit

these amounts pursuant to the deemed decree thus passed. This has nothing to do

with the earlier deposit made or to be made under and after the award. If the

deposit made, falls short of the enhancement decreed, there can arise the question

of appropriation at that stage, in relation to the amount enhanced on the reference.

The third stage occurs, when in appeal, the High Court enhances the

compensation as indicated already. That enhanced compensation would also bear

interest on the enhanced portion of the compensation, when Section 28 is applied.

The enhanced amount thus calculated will have to be deposited in addition to the

amount awarded by thereference Court if it had not already been deposited.

The fourth stage may be when the Supreme Court enhances the

compensation and at that stage too, the same rule would apply.

Can a claimant or decree holder who has received the entire amount

awarded by the reference court or who had notice of the deposit of the entire

amount so awarded, claim interest on the amount he has already received merely

because the appellate court has enhanced the compensation and has made payable

additional compensation? We have already referred to Order XXI and Order

XXIV of the Code to point out that such a blanket re-opening of the transaction is

not warranted even in respect of a money decree. Section 28 of the Act indicates

that the award of interest is confined to the excess compensation awarded and it is

to be paid from the date of dispossession. This is in consonance with the position

that a fresh re-appropriation is not contemplated or warranted by the scheme of

the Act. But if there is any shortfall at any stage, the claimant or decree holder

can seek to apply the rule of appropriation in respect of that amount, first towards

interest and costs and then towards the principal, unless the decree otherwise

directs. (Gurpreet Singh v. Union of India, Appeal (civil) 4570/2006, decided

by Constitutional Bench of Hon‘ble Supreme Court on 19.10.2006)

Land Acquisition Act Land Acquisition Act 1894, Amendment Act 68/84, Sec. 23 & 28 – C.P.C.,

Or. 21. R.1, Or.24, R. 3 – Contract Act Ss. 59 to 61 - Whether general rule of

appropriation is not applicable or wholly applicable in the execution

proceeding of an award under Land Acquisition Act as amended by Land

Acquisition (Amendment) Act, (68 of 1984) - different provisions of Land

Acquisition Act, C.P.C. and Contract Act and Ruling of Prem Nath Kapur &

others v. National Fertilizers Corporation of India Ltd. (1995) Supp. 5 SCR

790 and Sunder v. Union of India, (2001) Supp. 3 SCR 176 discussed. Held:

Though, a decree holder may have the right to appropriate the payments

made by the judgment-debtor, it could only be as provided in the decree if there is

provision in that behalf in the decree or, as contemplated by Order XXI Rule 1 of

the Code as explained by us above. The Code or the general rules do not

contemplate payment of further interest by a judgment debtor on the portion of

the principal he has already paid. His obligation is only to pay interest on the

balance principal remaining unpaid as adjudged either by the court of first

instance or in the court of appeal. On the pretext that the amount adjudged by the

appellate court is the real amount due, the decree-holder cannot claim interest on

that part of the principal already paid to him. Of course, as indicated, out of what

is paid he can adjust the interest and costs first and the balance towards the

principal, if there is a shortfall in deposit. But, beyond that, the decree-holder

cannot seek to re-open the entire transaction and proceed to recalculate the

interest on the whole amount and seek a re-appropriation as a whole in the light of

the appellate decree.

It is true that the understanding of the expression ―compensation awarded‖

for the purpose of Section 28 of the Act in Prem Nath Kapur (supra) was

modified. To that extent one bend of reasoning in Prem Nath Kapur (supra) also

stands discredited. But as we see it, on the question of appropriation, the decision

in Sunder (supra) does not have such an impact as to compel us to jettison the

reasoning adopted in Prem Nath Kapur (supra). Slightly deviating from the

reasoning in Prem Nath Kapur (supra) we have indicated earlier that even going

by Order XXI Rule 1 of the Code, the position would be as envisaged in Prem

Nath Kapur (supra). That apart, we are inclined to respectfully agree with the

reasoning in Prem Nath Kapur (supra) that on the wording of Section 34 and

Section 28 of the Act read with and understood in the light of the stages of the

award of compensation, the question of appropriation would be at different stages

and a decree holder would not be entitled to reopen the entire transaction to claim

a reappropriation of the amounts already received by him and appropriated at that

particular stage. The reliance on the doctrine of merger does not enable the

decree-holder to get over the scheme adopted by the Act.

Prem Nath Kapur (supra) also indicates that when an award-decree is

passed specifying the amounts under different heads like the amount under

Section 23(1), the amount under Section 23(2), the amount under Section 23(1A)

and the interest under Section 28 and the judgment debtor makes a deposit of

specified sums under these different heads, it will amount to the judgment debtor

intimating the decree holder as to how the sum deposited is to be applied in

discharge of the obligation of the judgment debtor. Once a decree holder receives

the payment of the sums thus deposited, he would be accepting the appropriation

made by the judgment debtor under the award decree on the scheme of the Land

Acquisition Act. This part of the reasoning in Prem Nath Kapur (supra) is, of

course, also based on the reasoning that there is some inconsistency in Order XXI

Rule 1 of the Code and the scheme of the Act. Prem Nath Kapur (supra) also

indicates that when the decree itself specifies the amount payable under different

heads (the decree has to do so under Section 26 of the Act) and amounts are

deposited towards those different heads, the appropriation would be on the basis

of the direction under the decree which must be taken to be one for crediting the

various sums paid under particular heads. On the scheme of the Act, especially

the wording of Section 34 and Section 28 of the Act it is not possible to say that

the said approach made in Prem Nath Kapur (supra) is erroneous or is

unreasonable or is not a line of approach that is not warranted. Therefore, when

the judgment debtor State makes a deposit along with the calculation

appropriating distinct sums towards various heads of compensation as awarded by

the reference court or by the appellate court in the appellate decree, and the

amount is received by the decree holder, the decree holder must be taken to be not

entitled to seek an appropriation as if the judgment debtor has not made any

intimation and that he is entitled to appropriate at his volition. Considering the

scheme of compensation under the Act in the context of the specific nature of the

items specifically referred to in Section 23 of the Act, we are of the view that the

approach adopted in Prem Nath Kapur (supra) is justified. A re-appropriation by

seeking to reopen the satisfaction already rendered might result in interest being

made payable even on that part of the principal amount that had already been

deposited and received by the decree holder and that would be in the realm of

unjust enrichment.

What is to happen when a part of the amount awarded by the reference

court or by the appellate court is deposited pursuant to an interim order of the

appellate court or of the further appellate court and the awardee is given the

liberty to withdraw that amount? In such a case, the amount would be received

by the decree holder on the strength of the interim order and the appropriation will

be subject to the decision in the appeal or the further appeal and the direction, if

any, contained therein. In such a case, if the appeal is disposed of in his favour,

the decree holder would be entitled to appropriate the amount already received by

him pursuant to the interim order first towards interest then towards costs and the

balance towards principal as on date of the withdrawal of the amount and claim

interest on the balance amount of enhanced compensation by levying execution.

But on that part appropriated towards the principal, the interest would cease from

the date on which the amount is received by the awardee. Of course, if while

passing the interim order, the court had indicated as to how the deposited amount

is to be appropriated, that direction will prevail and the appropriation could only

be done on the basis of that direction.

Thus, on the whole, we are satisfied that the essential ratio in the Prem

Nath Kapur (supra) on appropriation being at different stages is justified though if

at a particular stage there is a shortfall, the awardee decree holder would be

entitled to appropriate the same on the general principle of appropriation, first

towards interest, then towards costs and then towards the principal, unless, of

course, the deposit is indicated to be towards specified heads by the judgment

debtor while making the deposit intimating the decree-holder of his intention.

We, thus, approve the ratio of Prem Nath Kapur (supra) on the aspect of

appropriation. (Gurpreet Singh v. Union of India, Appeal (civil) 4570/2006,

decided by Constitutional Bench of Hon‘ble Supreme Court on 19.10.2006)

Legal Services Authorities Act

S. 6 – Appointment of Chairman of State Legal Service Authority in

different States – A retired Judge can only be appointed when unusual

difficulties exist – Normally a sitting Judge should be appointed as

Chairman.

In some States earlier a sitting Judge was functioning as the Chairman of

the State Legal Service Authority. We could not find any reason as to why a

departure from the long-standing practice of appointing a sitting Judge as the

Chairman of the State Legal Service Authority was departed from.

Another disturbing feature is that some of the State Governments have

asked for panel of names to be given. Calling for such panel in essence results in

substitution of objectivity with subjectivity. This is to be avoided. Though in

terms of Section 6(2) retired Judge can be appointed, but that shall have to be in

exceptional circumstances. The advantage of having a sitting Judge as the

Chairman far outweigh the disadvantages, some of which have been highlighted

by learned counsel for the States where retired Judges are appointed. Therefore,

normal rule is that a sitting Judge should be appointed as the Chairman and only

when unusual difficulties exist, a retired Judge may be appointed. That has to be

the exception and not the rule. (Supreme Court Bar Association v. Union of

India & Ors.; W.P. (Civil) No. 27 of 2007, decided by Hon‘ble Supreme

Court on 13.4.2007 = 2007 (3) Supreme 562)

Limitation Act Article 64 & 65 – Adverse possession – When sufficient to conform title –

Onus of proof – Held,

Adverse possession in one sense is based on the theory or presumption

that the owner has abandoned the property to the adverse possessor on the

acquiescence of the owner to the hostile acts and claims of the person in

possession. It follows that sound qualities of a typical adverse possession lie in it

being open, continuous and hostile.

To assess a claim of adverse possession, two-pronged enquiry is required:

1. Application of limitation provision thereby jurisprudentially ―willful

neglect‖ element on part of the owner established. Successful application

in this regard distances the title of the land from the paper-owner.

2. Specific Positive intention to dispossess on the part of the adverse

possessor effectively shifts the title already distanced from the paper

owner, to the adverse possessor. Right thereby accrues in favour of

adverse possessor as intent to dispossess is an express statement of

urgency and intention in the upkeep of the property.

(P.T. Munichilkkanna Reddy & Ors. v. Revamma & Ors.; Civil Appeal No. 7062

of 2000, decided by Hon‘ble Supreme Court on 24.4.2007 = 2007 (3) Supreme

751)

Motor Vehicles Act, 1988

Ss. 166 & 140 – Whether a married daughter is entitled to receive

compensation on the death of her father – Held, Yes. But the quantum of

compensation would be the liability referable U/s. 140 of M.V. Act – Whether

amount of compensation can be less then the liability referable to S. 140 of

the Act – Held, No.

In terms of clause (c) of sub-section (1) of Section 166 of the Act in case

of death, all or any of the legal representatives of the deceased become entitled to

compensation and any such legal representative can file a claim petition. The

proviso to said sub-section makes the position clear that where all the legal

representatives had not joined, then application can be made on behalf of the legal

representatives of the deceased by impleading those legal representatives as

respondents. Therefore, the High Court was justified in its view that the appellant

could maintain a claim petition in terms of Section 166 of the Act.

There are several factors which have to be noted. The liability under

Section 140 of the Act does not cease because there is absence of dependency.

The right to file a claim application has to be considered in the back-ground of

right to entitlement. While assessing the quantum, the multiplier system is applied

because of deprivation of dependency. In other words, multiplier is a measure.

There are three stages while assessing the question of entitlement. Firstly, the

liability of the person who is liable and the person who is to indemnify the

liability, if any. Next is the quantification and Section 166 is primarily in the

nature of recovery proceedings. As noted above, liability in terms of Section 140

of the Act does not cease because of absence of dependency.

Judged in that background where a legal representative who is not

dependant files an application for compensation, the quantum cannot be less than

the liability referable to Section 140 of the Act. Therefore, even if there is no loss

of dependency the claimant if he or she is a legal representative will be entitled to

compensation, the quantum of which shall be not less than the liability flowing

from Section 140 of the Act. The appeal is allowed to the aforesaid extent. (Smt.

Manjuri Bera v. The Oriental Insurance Company Ltd. & Anr.; Civil Appeal

No. 1702 of 2007, decided by Hon‘ble Supreme Court on 30.3.2007 = 2007 (3)

Supreme 620).

Motor Vehicles Act, 1988 – Ss. 146, 147, 163A & 166 – Whether policy in

terms of S. 147 is also intended to cover persons other than ―third party‖ –

Held, No.

Scope of the expression ―any person‖ occurring in S. 147 of the Act also

explained and held, ―any person‖ is to be understood as a third party. The

Hon‘ble Supreme Court observed as under: -

Chapter XI of the Act bears a heading, ―Insurance of Motor Vehicles

against third party risks‖. The definition of ―third party‖ is an inclusive one since

Section 145(g) only indicates that ―third party‖ includes the Government. It is

Section 146 that makes it obligatory for an insurance to be taken out before a

motor vehicle could be used on the road. The heading of that Section itself is

―Necessity for insurance against third party risk‖. No doubt, the marginal heading

may not be conclusive. It is Section 147 that sets out the requirement of policies

and limits of liability. It is provided therein that in order to comply with the

requirements of Chapter XI of the Act, a policy of insurance must be a policy

which is issued by an authorised insurer; or which insures the person or classes of

persons specified in the policy to the extent specified in sub-section (2) against

any liability which may be incurred by the owner in respect of the death of or

bodily injury or damage to any property of a third party caused by or arising out

of the use of the vehicle in a public place. With effect from 14.11.1994, injury to

the owner of goods or his authorised representative carried in the vehicle was also

added. The policy had to cover death of or bodily injury to any passenger of a

public service vehicle caused by or arising out of the use of the vehicle in a public

place. Then, as per the proviso, the policy shall not be required to cover liability

in respect of the death, arising out of and in the course of his employment, of the

employee of a person insured by the policy or in respect of bodily injury sustained

by such an employee arising out of and in the course of his employment, other

than a liability arising under the Workmen‘s Compensation Act, 1923 in respect

of the death of, or bodily injury to, an employee engaged in driving the vehicle, or

who is a conductor, if it is a public service vehicle or an employee being carried

in a goods vehicle or to cover any contractual liability. Sub-section (2) only sets

down the limits of the policy. As we understand Section 147 (1) of the Act, an

insurance policy thereunder need not cover the liability in respect of death or

injury arising out of and in the course of the employment of an employee of the

person insured by the policy, unless it be a liability arising under the Workmen‘s

Compensation Act, 1923 in respect of a driver, also the conductor, in the case of a

public service vehicle, and the one carried in the vehicle as owner of the goods or

his representative, if it is a goods vehicle. It is provided that the policy also shall

not be required to cover any contractual liability. Uninfluenced by authorities, we

find no difficulty in understanding this provision as one providing that the policy

must insure an owner against any liability to a third party caused by or arising out

of the use of the vehicle in a public place, and against death or bodily injury to

any passenger of a public service vehicle caused by or arising out of the use of

vehicle in a public place. The proviso clarifies that the policy shall not be

required to cover an employee of the insured in respect of bodily injury or death

arising out of and in the course of his employment. Then, an exception is

provided to the last forgoing to the effect that the policy must cover a liability

arising under the Workmen‘s Compensation Act, 1923 in respect of the death or

bodily injury to an employee who is engaged in driving the vehicle or who serves

as a conductor in a public service vehicle or an employee who travels in the

vehicle of the employer carrying goods if it is a goods carriage. Section 149(1),

which casts an obligation on an insurer to satisfy an award, also speaks only of

award in respect of such liability as is required to be covered by a policy under

clause (h) of sub-section (1) of Section 147, (being a liability covered by the

terms of the policy). This provision cannot therefore be used to enlarge the

liability if it does not exist in terms of Section 147 of the Act.

The object of the insistence on insurance under Chapter XI of the Act thus

seems to be to compulsorily cover the liability relating to their person or

properties of third parties and in respect of employees of the insured employer,

the liability that may arise under the Workmen‘s Compensation Act, 1923 in

respect of the driver, the conductor and the one carried in a goods vehicle carrying

goods. On this plain understanding of Section 147, we find it difficulty to hold

that the insurance company, in the case on hand, was liable to indemnify the

owner, the employer Company, the insured, in respect of the death of one of its

employees, who according to the claim, was not the driver. Be it noted that the

liability is not one arising under the Workmen‘s Compensation Act, 1923 and it is

doubtful, on the case put forward by the claimant, whether the deceased could be

understood as a workman coming within the Workmen‘s Compensation Act,

1923. Therefore, on a plain reading of Section 147 of the Act, it appears to be

clear that the insurance company is not liable to indemnify the insured in the case

on hand.

In New India Assurance Co. Ltd. Vs. Asha Rani and others [(2003) 2

S.C.C 223) this Court had occasion to consider the scope of the expression ―any

person‖ occurring in Section 147 of the Act. This Court held:

―that the meaning of the words ―any person‖ must also be

attributed having regard to the context in which they have been

used i.e. ― a third party‖. Keeping in view the provisions of the

1988 Act we are of the opinion that as the provisions thereof did

not enjoin any statutory liability on the owner of a vehicle to get

his vehicle insured for any passenger travelling in a goods vehicle,

the insurers would not be liable therefor.‖

In other words, this Court clearly held that the apparently wide words ―any

person‖ are qualified by the setting in which they occur and that ―any person‖ is

to be understood as a third party. (The Oriental Insurance Company Limited v.

Meena Variyal & ors; Appeal (civil) 5825 of 2006; decided by Hon‘ble


Motor Vehicles Act, 1988 – Ss. 146, 147, 163A & 166 – Whether in a claim

for compensation under S. 166 proof of negligence is necessary – Held, yes.

Whether in a claim for compensation U/s. 163A it is necessary to establish

negligence or default on the part of owner/driver – Held, No.

We think that the law laid down in Minu B. Mehta & Anr. v. Balkrishna

Ramchandra Nayan & Anr. (supra) was accepted by the legislature while enacting

the Motor Vehicles Act, 1988 by introducing Section 163A of the Act providing

for payment of compensation notwithstanding anything contained in the Act or in

any other law for the time being in force that the owner of a motor vehicle or the

authorised insurer shall be liable to pay in the case of death or permanent

disablement due to accident arising out of the use of the motor vehicle,

compensation, as indicated in the Second Schedule, to the legal heirs or the

victim, as the case may be, and in a claim made under sub-section (1) of Section

163A of the Act, the claimant shall not be required to plead or establish that the

death or permanent disablement in respect of which the claim has been made was

due to any wrongful act or neglect or default of the owner of the vehicle

concerned. Therefore, the victim of an accident or his dependants have an option

either to proceed under Section 166 of the Act or under Section 163A of the Act.

Once they approach the Tribunal under Section 166 of the Act, they have

necessarily to take upon themselves the burden of establishing the negligence of

the driver or owner of the vehicle concerned. But if they proceed under Section

163A of the Act, the compensation will be awarded in terms of the Schedule

without calling upon the victim or his dependants to establish any negligence or

default on the part of the owner of the vehicle or the driver of the vehicle. (The

Oriental Insurance Company Limited v. Meena Variyal & ors; Appeal

(civil) 5825 of 2006; decided by Hon‘ble Supreme Court on 02.04.2007)

Motor Vehicles Act, 1988 – Ss. 146, 147, 163A & 166 – Deceased himself

driving the vehicle –Insurance Policy, issued in terms of S. 147 of the Act

which has no special clause covering persons other than ―third party‖ -

Whether Insurance Company liable when deceased is himself is owner or

employee of owner – Held, No.

Ratio of Swaran Singh‘s case also clarified

The object of the insistence on insurance under Chapter XI of the Act thus

seems to be to compulsorily cover the liability relating to their person or

properties of third parties and in respect of employees of the insured employer,

the liability that may arise under the Workmen‘s Compensation Act, 1923 in

respect of the driver, the conductor and the one carried in a goods vehicle carrying

goods. On this plain understanding of Section 147, we find it difficulty to hold

that the insurance company, in the case on hand, was liable to indemnify the

owner, the employer Company, the insured, in respect of the death of one of its

employees, who according to the claim, was not the driver. Be it noted that the

liability is not one arising under the Workmen‘s Compensation Act, 1923 and it is

doubtful, on the case put forward by the claimant, whether the deceased could be

understood as a workman coming within the Workmen‘s Compensation Act,

1923. Therefore, on a plain reading of Section 147 of the Act, it appears to be

clear that the insurance company is not liable to indemnify the insured in the case

on hand.

The argument that the proviso does not keep out employees from coverage

though the claims under the Workmen‘s Compensation Act are specified, cannot

be accepted on the plain language of the proviso. The proviso enacts an

exemption and carves out an exception to that exemption. The suggested

interpretation would result in ignoring the effect of the language employed by the

proviso, exempting the owner from covering his employees under insurance

except in cases where the liability in respect of them is, one arising under the

Workmen‘s Compensation Act. Obviously, as determined by that Tribunal.

We shall now examine the decision in Swaran Singh (supra) on which

practically the whole of the arguments on behalf of the claimants was rested. On

examining the facts, it is found that, that was a case which related to a claim by a

third party. In claims by a third party, there cannot be much doubt that once the

liability of the owner is found, the insurance company is liable to indemnify the

owner, subject of course, to any defence that may be available to it under Section

149(2) of the Act. In a case where the liability is satisfied by the insurance

company in the first instance, it may have recourse to the owner in respect of a

claim available in that behalf. Swaran Singh (supra) was a case where the

insurance company raised a defence that the owner had permitted the vehicle to

be driven by a driver who really had no licence and the driving licence produced

by him was a fake one. Their Lordships discussed the position and held ultimately

that a defence under Section 149(2)(a)(ii) of the Act was available to an insurer

when a claim is filed either under Section 163A or under Section 166 of the Act.

The breach of a policy condition has to be proved to have been committed by the

insured for avoiding liability by the insurer. Mere absence of or production of

fake or invalid driving licence or disqualification of the driver for driving at the

relevant time, are not in themselves defences available to the insurer against either

the insured or the third party. The insurance company to avoid liability, must not

only establish the available defence raised in the concerned proceeding but must

also establish breach on the part of the owner of the vehicle for which the burden

of proof would rest with the insurance company. Whether such a burden had

been discharged, would depend upon the facts and circumstances of each case.

Even when the insurer, is able to prove breach on the part of the insured

concerning a policy condition, the insurer would not be allowed to avoid its

liability towards the insured unless the said breach of condition is so fundamental

as to be found to have contributed to the cause of the accident. The question

whether the owner has taken reasonable care to find out whether the driving

licence produced by the driver was fake or not, will have to be determined in each

case. If the vehicle at the time of the accident was driven by a person having a

learner‘s licence, the insurance company would be liable to satisfy the award.

The amount that may be awarded to the insurance company against the insurer in

an appropriate case could be recovered even by way of the enforcement of the

very award. The insurance company had to satisfy the claim of the insured in

cases where a defence under Section 149(2) has been established by the Company

in terms of a fake licence or the learner‘s licence. Their Lordships distinguished

Malla Prakasarao Vs. Malla Janaki & Ors. [(2004) 3 S.C.C. 343] wherein it was

held that the insurance company had no liability to pay any compensation where

an accident resulted by a vehicle being driven by a driver without a driving

licence. In other words, a distinction between a case of no licence and a case of

licence which turned out to be fake or deficient was drawn and the liability was

held to stand on different footings.

It is difficult to apply the ratio of Swaran Singh‘s case, to a case not

involving a ―third party‖. The whole protection provided by Chapter XI of the Act

is against third party risk. Therefore, in a case where a person is not a third party

within the meaning of the Act, the insurance company cannot be made

automatically liable merely by resorting to the Swaran Singh (supra) ratio. This

appears to be the position. This position was expounded recently by this Court in

National Insurance Co. Ltd. Vs. Laxmi Narain Dhut [2007 (4) SCALE 36]. This

Court after referring to Swaran Singh (supra) and discussing the law summed up

the position thus:

―In view of the above analysis the following situations emerge:

1. The decision in Swaran Singh‘s case (supra) has no application to

cases other than third party risks.

2. Where originally the license was a fake one, renewal cannot cure

the inherent fatality.

3. In case of third party risks the insurer has to indemnify the amount

and if so advised, to recover the same from the insured.

4. The concept of purposive interpretation has no application to cases

relatable to Section 149 of the Act.

The High Courts/Commissions shall now consider the mater afresh in the

light of the position in law as delineated above.‖

We are in respectful agreement with the above view. (The Oriental

Insurance Company Limited v. Meena Variyal & Ors; Appeal (civil) 5825 of

2006; decided by Hon‘ble Supreme Court on 02.04.2007)

Motor Vehicles Act, 1988 – Ss. 146, 147, 163A & 166 – General Principle

applicable in determining the claim for compensation clarified by holding

that the Tribunal should not forget basic principles of establishing liability

and quantum of compensation – Further held that driver should be made

party because vicarious liability of owner is dependent on the liability of

driver.

Before we proceed to consider the main aspect arising for decision in this

Appeal, we would like to make certain general observations. It may be true that

the Motor Vehicles Act, insofar as it relates to claims for compensation arising

out of accidents, is a beneficent piece of legislation. It may also be true that

subject to the rules made in that behalf, the Tribunal may follow a summary

procedure in dealing with a claim. That does not mean that a Tribunal

approached with a claim for compensation under the Act should ignore all basic

principles of law in determining the claim for compensation. Ordinarily, a

contract of insurance is a contract of indemnity. When a car belonging to an

owner is insured with the insurance company and it is being driven by a driver

employed by the insured, when it meets with an accident, the primary liability

under law for payment of compensation is that of the driver. Once the driver is

liable, the owner of the vehicle becomes vicariously liable for payment of

compensation. It is this vicarious liability of the owner that is indemnified by the

insurance company. A third party for whose benefit the insurance is taken, is

therefore entitled to show, when he moves under Section 166 of the Motor

Vehicles Act, that the driver was negligent in driving the vehicle resulting in the

accident; that the owner was vicariously liable and that the insurance company

was bound to indemnify the owner and consequently, satisfy the award made.

Therefore, under general principles, one would expect the driver to be impleaded

before an adjudication is claimed under Section 166 of the Act as to whether a

claimant before the Tribunal is entitled to compensation for an accident that has

occurred due to alleged negligence of the driver. Why should not a Tribunal

insist on the driver of the vehicle being impleaded when a claim is being filed?

As we have noticed, the relevant provisions of the Act are not intended to jettison

all principles of law relating to a claim for compensation which is still based on a

tortious liability. The Tribunal ought to have, in the case on hand, directed the

claimant to implead Mahmood Hasan who was allegedly driving the vehicle at the

time of the accident. Here, there was also controversy whether it was Mahmood

Hasan who was driving the vehicle or it was the deceased himself. Surely, such a

question could have been decided only in the presence of Mahmood Hasan who

would have been principally liable for any compensation that might be decreed in

case he was driving the vehicle. Secondly, the deceased was employed in a

limited company. It was necessary for the claimants to establish what was the

monthly income and what was the dependency on the basis of which the

compensation could be adjudged as payable. Should not any Tribunal trained in

law ask the claimants to produce evidence in support of the monthly salary or

income earned by the deceased from his employer Company? Is there anything in

the Motor Vehicles Act which stands in the way of the Tribunal asking for the

best evidence, acceptable evidence? We think not. Here again, the position that

the Motor Vehicles Act vis-a-vis claim for compensation arising out of an

accident is a beneficent piece of legislation, cannot lead a Tribunal trained in law

to forget all basic principles of establishing liability and establishing the quantum

of compensation payable. The Tribunal, in this case, has chosen to merely go by

the oral evidence of the widow when without any difficulty the claimants could

have got the employer company to produce the relevant documents to show the

income that was being derived by the deceased from his employment. Of course,

in this case, the above two aspects become relevant only if we find the insurance

company liable. If we find that only the owner of the vehicle, the employer of the

deceased was liable, there will be no occasion to further consider these aspects

since the owner has acquiesced in the award passed by the Tribunal against it.

(The Oriental Insurance Company Limited v. Meena Variyal & ors; Appeal

(civil) 5825 of 2006; decided by Hon‘ble Supreme Court on 02.04.2007)

Muslim Law Muslim Woman (Protection of Rights on Divorce) Act, 1986.

(1) Whether a Muslim Divorced Wife is entitled to get maintenance

allowance under section 3(1)(a) Muslim Woman (Protection of Rights on

Divorce) Act, 1986 beyond iddat period.

(2) Whether a divorced Muslim woman who is not remarried and who is not

able to maintain herself after the iddat period can proceed as provided under

Section 4 of the Act against her relative who are liable to maintain her.

(3) Whether liability of the Muslim husband to his divorced wife arising

under Section 3 (i) (a) of the Act to pay maintenance is not confined to the

iddat period.

(4) Whether the provisions of the Act offend Article 14, 15 and 21 of the

Indian Constitution.‖

Held: As under: -

(1) A Muslim husband is liable to make reasonable and fair provision for

the future of the divorced wife which obviously includes her maintenance as well.

Such a reasonable and fair provision extending beyond the iddat period must be

made by the husband within the iddat period in terms of Section 3 (i) (a) of the

Act.

(2) Liability of the Muslim husband to his divorced wife arising under

Section 3 (i) (a) of the Act to pay maintenance is not confined to the iddat period.

(3) A divorced Muslim woman who is not remarried and who is not able

to maintain herself after the iddat period can proceed as provided under Section 4

of the Act against her relative who are liable to maintain her in proportion to the

properties which they inherit on her death according to Muslim law for such

divorced woman including her children and parents. If any of her relative being

unable to pay maintenance, the Magistrate may direct the State Waqf Board

established under the Act to pay maintenance.

(4) The provisions of the Act do not offend Article 14, 15 and 21 of the

Indian Constitution.‖

The position was followed in Sabra Shamim v. Maqsood Ansari (2004 (9)

SCC 616).

Proceedings under Section 125 Cr.P.C. are civil in nature. Even if the Court

notices that there was a divorced woman in the case in question, it was open to

him to treat it as a petition under the Act considering the beneficial nature of the

legislation. Proceedings under Section 125 Cr.P.C. and claims made under the Act

are tried by the same Court. In Vijay Kumar Prasad v. State of Bihar and Ors.

(2004 (5) SCC 196), it was held that proceedings under Section 125 Cr.P.C. are

civil in nature. It was noted as follows:

―14. The basic distinction between Section 488 of the old Code and

Section 126 of the Code is that Section 126 has essentially

enlarged the venue of proceedings for maintenance so as to move

the place where the wife may be residing on the date of

application. The change was thought necessary because of certain

observations by the Law Commission, taking note of the fact that

often deserted wives are compelled to live with their relatives far

away from the place where the husband and wife last resided

together. As noted by this Court in several cases, proceedings

under Section 125 of the Code are of civil nature. Unlike clauses

(b) and (c) of Section 126(1) an application by the father or the

mother claiming maintenance has to be filed where the person

from whom maintenance is claimed lives.‖

Accordingly, we set aside the order impugned of the High Court and remit

the matter for fresh consideration.

The High Court while deciding the matter shall keep in view the principles

indicated above. Since the matter is pending since long, the High Court shall

dispose of the matter within six months from the date of receipt of this order to

avoid unnecessary delay. We direct the parties to appear before the High Court

on 23rd

July 2007. We request the Chief Justice of the High Court to list the

matter before the appropriate Bench. (Iqbal Bano v. State of U.P. and Anr.

Appeal (Crl.) 795 of 2001, decided by Supreme Court on 05/06/2007)

NDPS Act NDPS Act - Bail – Under Section 37 of the NDPS Act

Every offence punishable under this Act has been declared to be

cognizable and non-bailable. Under clause (b) of Section 37 a rider has been

provided that no person accused of an offence punishable for a term of

imprisonment of five years or more shall be released on bail or on his own bond

unless the Public Prosecutor has been given an opportunity to oppose the

application for such release, and where the Public Prosecutor opposes the

application, the Court is satisfied that there are reasonable grounds for believing

that he is not guilty of such offence and that he is not likely to commit any

offence while on bail.

Here, in the present case 150 gm of Charas, which is more than small

quantity of 100 gms. prescribed has been recovered. Thus, the applicant from his

own showing was in possession of 50 gm. extra quantity of Charas, and the

punishment which has been provided for said contravention under Section 20,

runs between ten years. In the present case for recovery small quantity of Charas

i. e. 100 gms. Maximum punishment is six months, since only 50 gm. extra

Charas is alleged to have been recovered, the maximum punishment which can be

imposed may not be more than 5 years, prima facie in the facts of the case.

Seeing the way and manner in which recovery has been made, and the

nature of the offence and the small extra quantity of Charas is alleged to have

been recovered from the applicant, and that applicant has no criminal history, he

is directed to be released on bail in case crime No. 336 of 2007, under Section

8/20 of the NDPS Act, Police Station Tajganj, District Agra, on his furnishing

personal bond and two sureties, each in the like amount, to the satisfaction of the

Court concerned. (Ram Kishor v. State of U.P; Criminal Misc. Bail

Application No. 11414 of 2007, Decided on 5-6-07 by Hon‘ble Allahabad

High Court)

S. 42 & 43 NDPS Act compared – Scope and applicability explained:

The next question is whether Section 42 of the NDPS Act applies to the facts

of this case. In our view Section 42 of the NDPS Act has no application to the

facts of this case. Section 42 authorises an officer of the departments

enumerated therein, who are duly empowered in this behalf, to enter into and

search any such building, conveyance or place, if he has reason to believe

from personal knowledge or information given by any person and taken down

in writing that any narcotic drug or psychotropic substance etc. is kept or

concealed in any building, conveyance or enclosed place. This power can be

exercised freely between sunrise and sunset but between sunset and sunrise if

such an officer proposes to enter and search such building, conveyance or

enclosed place, he must record the grounds for his belief that a search warrant

or authorization cannot be obtained without affording opportunity for the

concealment of evidence or facility for the escape of an offender.

Section 43 of the NDPS Act provides that any officer of any of the

departments mentioned in Section 42 may seize in any public place or in

transit any narcotic drug or psychotropic substance etc. in respect of which he

has reason to believe that an offence punishable under the Act has been

committed. He is also authorized to detain and search any person whom he

has reason to believe to have committed an offence punishable under the Act.

Explanation to Section 43 lays down that for the purposes of this section, the

expression ―public place‖ includes any public conveyance, hotel, shop, or

other place intended for use by, or accessible to, the public.

Sections 42 and 43, therefore, contemplate two different situations. Section 42

contemplates entry into and search of any building, conveyance or enclosed

place, while Section 43 contemplates a seizure made in any public place or in

transit. If seizure is made under Section 42 between sunset and sunrise, the

requirement of the proviso thereto has to be complied with. There is no such

proviso in Section 43 of the Act and, therefore, it is obvious that if a public

conveyance is searched in a public place, the officer making the search is not

required to record his satisfaction as contemplated by the proviso to Section

42 of the NDPS Act for searching the vehicle between sunset and the sunrise.

(State, NCT of Delhi v. Malvinder Singh; Appeal (Crl.) 433 of 2002,


N.D.P.S. Act- S. 50 – Compliance - Requirement discussed - Meaning of

words ―search any person‖ explained-

The word ―person‖ has not been defined in the Act. Section 2(xxix) of the

Act says that the words and expressions used herein and not defined but defined

in the Code of Criminal Procedure have the meanings respectively assigned to

them in that Code. The Code, however, does not define the word ―person‖.

Section 2(y) of the Code says that the words and expressions used therein and not

defined but defined in the Indian Penal Code, 1860 have the meanings

respectively assigned to them in that Code. Section 11 of the Indian Penal Code

says that the word ―person‖ includes any Company or Association or body of

persons whether incorporated or not. Similar definition of the word ―person‖ has

been given in Section 3(42) of the General Clauses Act. Therefore, these

definitions render no assistance for resolving the controversy in hand.

One of the basic principles of interpretation of Statutes is to construe them

according to plain, literal and grammatical meaning of the words. If that is

contrary to, or inconsistent with, any express intention or declared purpose of the

Statute, or if it would involve any absurdity, repugnancy or inconsistency, the

grammatical sense must then be modified, extended or abridged, so far as to avoid

such an inconvenience, but no further. The onus of showing that the words do not

mean what they say lies heavily on the party who alleges it. He must advance

something which clearly shows that the grammatical construction would be

repugnant to the intention of the Act or lead to some manifest absurdity (See

Craies on Statute Law, Seventh ed. page 83-85). In the well known treatise -

Principles of Statutory Interpretation by Justice G.P. Singh, the learned author has

enunciated the same principle that the words of the Statute are first understood in

their natural, ordinary or popular sense and phrases and sentences are construed

according to their grammatical meaning, unless that leads to some absurdity or

unless there is something in the context or in the object of the Statute to suggest

the contrary (See the Chapter - The Rule of Literal Construction -page 78 - Ninth

ed.). This Court has also followed this principle right from the beginning. In

Jugalkishore Saraf v. Raw Cotton Co. Ltd. AIR 1955 SC 376.

S.R. Das, J. said: -

―The cardinal rule of construction of statutes is to read the statute

literally, that is, by giving to the words used by the legislature their

ordinary, natural and grammatical meaning. If, however, such a

reading leads to absurdity and the words are susceptible of another

meaning the Court may adopt the same. But if no such alternative

construction is possible, the Court must adopt the ordinary rule of

literal interpretation.‖

A catena of subsequent decisions have followed the same line. It,

therefore, becomes necessary to look to dictionaries to ascertain the correct

meaning of the word ―person‖.

A bag, briefcase or any such article or container, etc. can, under no

circumstances, be treated as body of a human being. They are given a separate

name and are identifiable as such. They cannot even remotely be treated to be part

of the body of a human being. Depending upon the physical capacity of a person,

he may carry any number of items like a bag, a briefcase, a suitcase, a tin box, a

thaila, a jhola, a gathri, a holdall, a carton, etc. of varying size, dimension or

weight. However, while carrying or moving along with them, some extra effort or

energy would be required. They would have to be carried either by the hand or

hung on the shoulder or back or placed on the head. In common parlance it would

be said that a person is carrying a particular article, specifying the manner in

which it was carried like hand, shoulder, back or head, etc. Therefore, it is not

possible to include these articles within the ambit of the word ―person‖ occurring

in Section 50 of the Act.

The scope and ambit of Section 50 of the Act was examined in

considerable detail by a Constitution Bench in State of Punjab v. Baldev Singh;

[1999 (6) SCC 172] and para 12 of the reports is being reproduced below:

―12. On its plain reading, Section 50 would come into play only in

the case of a search of a person as distinguished from search of any

premises etc. However, if the empowered officer, without any prior

information as contemplated by Section 42 of the Act makes a search or

causes arrest of a person during the normal course of investigation into an

offence or suspected offence and on completion of that search, a

contraband under the NDPS Act is also recovered, the requirements of

Section 50 of the Act are not attracted.‖

The Bench recorded its conclusion in para 57 of the reports and sub-paras

(1), (2), (3) and (6) are being reproduced below:

―57. On the basis of the reasoning and discussion above, the

following conclusions arise:

(1) That when an empowered officer or a duly authorized

officer acting on prior information is about to search a

person, it is imperative for him to inform the person

concerned of his right under Sub-section (1) of Section 50

of being taken to the nearest gazetted officer or the nearest

Magistrate for making the search. However, such

information may not necessarily be in writing.

(2) That failure to inform the person concerned about the

existence of his right to be searched before a gazetted

officer or a Magistrate would cause prejudice to an

accused.

(3) That a search made by an empowered officer, on prior

information, without informing the person of his right that

if he so requires, he shall be taken before a gazetted officer

or a Magistrate for search and in case he so opts, failure to

conduct his search before a gazetted officer or a Magistrate

may not vitiate the trial but would render the recovery of

the illicit article suspect and vitiate the conviction and

sentence of an accused, where the conviction has been

recorded only on the basis of the possession of the illicit

article, recovered from his person, during a search

conducted in violation of the provisions of Section 50 of

the Act.

That in the context in which the protection has been incorporated in

Section 50 for the benefit of the person intended to be searched, we do not express

any opinion whether the provisions of Section 50 are mandatory or directory, but

hold that failure to inform the person concerned of his right as emanating from

Sub-section (1) of Section 50, may render the recovery of the contraband suspect

and the conviction and sentence of an accused is bad and unsustainable in law.‖

(State of Haryana v. Suresh; Appeal (Crl.) 248/2001 & State of Rajasthan v.

Babu Ram; Appeal (crl.) 1097 of 2002, Decided by Hon‘ble Supreme Court

on 5.6.2007 )

Negotiable Instruments Act

S. 138 & 141 – When an offence is alleges to be committed by a company

– Who is liable for the prosecution – Held, every person who is incharge of

and is responsible to the company for the conduct of the business of the

company.

A Company, though a legal entity, cannot act by itself but can only act

through its directors. Normally, the Board of Directors act for and on behalf of the

company. This is clear from Section 291 of the Companies Act which provides

that subject to the provisions of that Act, the Board of Directors of a Company

shall be entitled to exercise all such powers and to do all such acts and things as

the Company is authorized to exercise and do.

Therefore, a person in the commercial world having a transaction with a

company is entitled to presume that the directors of the company are incharge of

the affairs of the company. If any restrictions on their powers are placed by the

memorandum or articles of the company, it is for the directors to establish it at the

trial. It is in that context that Section 141 of the Negotiable Instruments Act

provides that when the offender is a company, every person, who at the time when

the offence was committed was incharge of and was responsible to the company

for the conduct of the business of the company, shall also be deemed to be guilty

of the offence along with the company. It appears to us that an allegation in the

complaint that the named accused are directors of the company itself would usher

in the element of their acting for and on behalf of the company and of their being

incharge of the company. While Section 138 made a person criminally liable on

dishonour of a cheque for insufficiency of funds or the circumstances referred to

in the Section and on the conditions mentioned therein, Section 141 laid down a

special provision in respect of issuance of cheques by companies and

commissions of offences by companies under Section 138 of the Negotiable

Instruments Act. Therein, it was provided that if the person committing an offence

under Section 138 of the Act was a company, every person, who at the time the

offence was committed, was in charge of and was responsible to the company for

the conduct of the business of the company as well as the company, shall be

deemed to be guilty of the offence and shall be liable to be proceeded against and

punished accordingly. The scope of Section 141 has been authoritatively

discussed in the decision in S.M.S. Pharmaceuticals Ltd. (supra) binding on us

and there is no scope for redefining it in this case. Suffice it to say, that a

prosecution could be launched not only against the company on behalf of which

the cheque issued has been dishonoured, but it could also be initiated against

every person who at the time the offence was committed, was in charge of and

was responsible for the conduct of the business of the company. In fact, Section

141 deems such persons to be guilty of such offence, liable to be proceeded

against and punished for the offence, leaving it to the person concerned, to prove

that the offence was committed by the company without his knowledge or that he

has exercised due diligence to prevent the commission of the offence. Sub-section

(2) of Section 141 also roped in Directors, Managers, Secretaries or other officers

of the company, if it was proved that the offence was committed with their

consent or connivance. (N. Rangachari v. Bharat Sanchar Nigam Limited;

Criminal Appeal No. 592 of 2007, decided by Hon‘ble Supreme Court on

19.4.2007 = 2007 (3) Supreme 626)

Panchayats and Zila Parishads

U.P. Panchayat Raj Act – S. 12(c) – U.P. Panchayat Raj (Settlement of

Election Disputes) Rules – R. 3(1) proviso – Dismissal of election petition for

non-compliance of R. 3 of above mentioned Rules, 1994

The rule 3(1) proviso in so far as it provides that the election petition

shall not be entertained unless it is accompanied by the treasury challan to

show that the amount of Rs. 50/-has been deposited is mandatory whereas

the manner of deposit cannot be said to be mandatory failure of which may

entail dismissal of the election petition. In case the deposit is shown for the

Gaon Sabha in question substantial compliance is fully proved and the

election petition need not be dismissed on the ground that the deposit is not

in the particular account i.e. personal ledger account of the Gaon Sabha. the

petitioner himself has filed treasury challan by which the amount was

deposited in the State Bank of India by the petitioner of village Mohinipur.

The aforesaid deposit clearly makes out substantial compliance of Rule 3 and

the election petition is fully entertained on the strength of such deposit.

(Kamal Singh v. State of U.P.; 2007 (3) ALJ 146)

Precedents Constitution of India - Art. 141 – Obitur dictum of Supreme Court –

May be binding only on High Courts in absence of direct pronouncement on

that question elsewhere by Supreme Court.

An Obitur dictum of SC may be binding only on the High Court in

absence of a direct pronouncement on that question elsewhere by SC but as far as

this court is concerned, though not binding, it does not have clear persuasive

authority. (Oriental Insurance Company Ltd. v. Meena Variyal & Ors. 2007

(3) ALJ 596 (SC)

Prevention of Corruption Act

S. 19, 7 – Sanction for prosecution – When necessary

The Opposite Party was demanding of bribe was not a part of the function

of the public servant and S. 7 of the Act provides for doing or forbearing to do

any official act or for showing or for bearing to show, in the exercise of his

official functions, favour or disfavour to any person or for rendering or attempting

to render any service or disservice to any person and since demand of bribe was

not part of the official functions, no sanctions was required. it is to be noticed that

the words rendering or attempting to render are also included in S. 7 of the Act

and any attempt, therefore, to demand of bribe must be deemed to be covered

within the parameter of S. 7 of the Act. If this argument advanced by the counsel

for the O.P. no. 2 were to be accepted, the very purpose of the Prevention of

Corruption Act which is to inhibit bribery and corruption would be frustrated and

such a construction cannot be deemed to be intended by the Legislature. If any

public servant demands bribe, he demands the same because he is a public servant

and wants to show favour or disfavour in the discharge of his official duty and,

therefore, it cannot be said that demanding bribe by an official would not be

covered under S. 7 of the Act because demanding of bribe is not a part of his

official function. Hence, contention propounded by the counsel for the O.P. no. 2

cannot, therefore, prevail and the view taken by the Anti-Corruption Judge in the

impugned order is not correct and needs to be set aside. (Prabhat Kumar

Srivastava v. State of Uttar Pradesh and Anr. 2007 (3) ALJ 140)

Prevention of Food Adulteration Act 1954

Ss. 7(1)- 16 Margin of variation is small and case is old one- whether

deserve lenient view on punishment;

Appellant made a plea for affording the benefit as given by this Court in

N. Sukumaran Nair‘s case (supra) and Santosh Kumar v. Municipal Corporation

and Anr. (2000 (9) SCC 151). The plea is made on the ground that the occurrence

took place in 1984 and the margin of variation is very small.

It is pointed out that the appellant has already suffered custody for more

than three months. We direct that a sum of Rs.7,500/-, as fine, be deposited

within a period of six weeks from today. (Om Prakash v. State (NCT) of Delhi;

Appeal (crl.) 534 of 2001, Decided by Hon‘ble Supreme Court on 5.6.2007)

Provincial Small Cause Courts Act

Ss. 10, 15 (U.P. Amendment) Sch. 2, Art. 4 – Jurisdiction of Small Cause

Court Act

The U.P. State amendments in Section 15 of the Provincial Small Cause

Courts Act specifically provides that a suit in relation to a relief for eviction by

the lessor against the lessee from a building after determination of the lease shall

be congnizable by the Court of Judge Small Causes only. S. 16 of the said Act

makes it an exclusive jurisdiction of that Court. Therefore, this suit being a suit

for relief of eviction of the tenant from the leased premises is subject matter

covered under the exclusive jurisdiction of the Court of Small Causes only and it

would not lie before any regular Civil Court. (M/s Bindal Logistics Pvt. Ltd. v.

M/s Ashoka Handloom Factory & Ors. 2007 (1) ALJ 148)

Public Policy Essential Commodities Act – S. 3 – Fair price shop licence – Revocation

challenged on the ground that the order of revocation is cryptic and

unreasoned – Validity of.

I would not scruple to say that impugned order passed has its foundation

in the control order issued under the Essential Commodities Act and by this

reckoning, the function performed by the sub-divisional officer is a statutory

function and he is obligated upon to reckon with and weigh with each and every

averment contained in the reply submitted by the petitioner in response to the

chargesheet by means of catena of decisions, it has been stressed time and again

that the officer performing the statutory function must give reasons in as much as

failure to give reasons amounts to denial of justice. The right to reason is an

indispensable part of a sound judicial system. To be precise, one of the salutary

requirements of natural justice is spelling out reasons for the order made. (Jagat

Bhan Singh v. State of U.P. 2007 (2) ALJ 639)

Rent Control and Eviction

S. 21(1)(b) - Release of premises – Ground that building was in

dilapidated condition. Release order must be based on the fact that finding of

Prescribed Authority was based on cogent reasons. Prescribed under Rule 17

of U.P. Urban Building (Regulation of Letting, Rent and Eviction) Rules, 72

It cannot be said that the landlord had not proved that the shop in dispute

is in dilapidated condition or that Prescribed Authority has recorded finding of

fact regarding dilapidated condition of the building on no evidence. The

Prescribed Authority has considered the evidence of witnesses who have deposed

that the shop in dispute is in dilapidated condition and thereafter recorded the

finding of fact that effect.

A perusal of the judgment of Prescribed Authority reveals that it has

considered this aspect of the case and recorded a finding of fact that the

provisions of Rule 17 have been complied with by the landlord.

The finding of fact recorded by the Prescribed Authority is not based only on the

report of the Commissioner nor it has recorded the finding merely because the

building is 70 years old. To the contrary, the finding of the Prescribed Authority is

based on cogent reasons.

From the findings, quoted in the body of judgment, it is crystal clear that

the Prescribed Authority has not gone beyond pleadings and landlord has

provided his case with clarity that the building was in dilapidated condition.

(Vishal Chand Jain v. IX Addl. District Judge, Saharanpur & Ors.; 2007 (3)

ALJ 74)

Sections 4, 7, 15 - Eviction of Unauthorised Occupant - Jurisdiction of

Estate Officer.

The Scheme of 1971 Act including S. 15 of 1971 Act give a clear

indication that 1971 Act was enacted as a Special Act for the special purpose.

Section 15 of the 1971 Act clearly confers the jurisdiction on that Court to

entertain any suit or proceeding in respect of eviction of any person who is

unauthorised occupant of any public premises. The submission of Sri Asthana is

that there being an arbitration clause in agreement between the parties, the

proceeding under 1971 Act cannot be drawn, is hopelessly devoid of any merit. In

the Arbitration and Conciliation Act, 1996 also no provision could be pointed out

which preclude jurisdiction of the Special Act under Ss. 4/7 of 1971 Act for

eviction of unauthorised occupant. Section 42 provides for jurisdiction of a

limited purpose, with respect to an arbitration agreement in any application under

that part. Present is not a case in which S.42 has any relevance. If there is an

arbitration clause the jurisdiction of an authority under a Special Act is barred by

the said clause. (Onkar Nath S/o Deewan Chandra v. Union of India & Ors;

2007 (2) ALJ 307)

S. 21(1)(a) – Release of shop – Bonafide need and comparative hardship –

Determination of.

In the present case Hon‘ble court has observed that need for opening fast

food restaurant in hotel and for having good attractive reception cum lobby cannot

be said to be not a bonafide need. Hotel business is expanding rapidly and hotel,

which provides better facilities, is expected to attract more and better customers.

In respect of comparative hardship, it is admitted that the tenant had alternative

accommodation at a distance about 150 meters from the shop in dispute. In

addition, landlord also offered alternative accommodation to tenant. Hence,

finding of bonafide need and comparative hardship recorded in favour of landlord.

(M/s Hotel Vilas and Anr. v. Anil Roy and Ors.; 2007 (3) ALJ 427)

Societies Registration Act

S. 3-A – Brahmrishi Sri Devrahababa Surveshwar Kalyan Mahamandal

Byelaws, Cl. 6(1) Ka, Kha – Presidentship of religious society – Declaration

of result of Presidentship in violation of byelaws of society by the Assistant

Registrar, Society would be erroneous in the law and liable to the set aside.

There is no provision under the Byelaws of the society that Sadhu Samaj

shall elect the successor and the President of the Society after the death of the

founding President. The Sadhus who allegedly passed the resolution in favour of

the respondent no. 3 were not members of the society. Under Cl. 6(1) Ka, it was

provided that successor of President would be either his disciple or disciple of

Brahmarishi Sri Devrahababa with the further restriction that he should have

renounced the world. There is no provision under the byelaws that the successor

of the founder President as elected by the Sadhu Samaj shall also be the President

of the Society. A formal resolution is required to be passed and procedure

prescribed under the byelaws for inducting new member is necessary to be

followed before reinducting an expelled member for about 11 months after the

acquittal of Respondent no. 3, the founder President remained alive still he did not

re-induct him as member of the society or office bearer of the executive body of

the society accordingly, even if some letter was written by the founder President

before removal of the Respondent no. 3, it would not be of any help to the

Respondent no. 3. On the basis of the said letter Respondent no. 3 cannot say that

he is entitled to become President after the death of the founder President.

Accordingly , impugned order is patently erroneous in law and is liable to be set

aside. (Swami Rameshwar Prapannacharya Daraganj, Allahabad v. State of

U.P. 2007; (3) ALJ 390)

S. 6 – Suit by registered society – Who shall be authorized to institute a

suit.

In absence of such specific provisions under the rules of a society, it is for

the committee of management or governing body to determine as to who shall

represent the society in the court of competent jurisdiction for institution of a suit.

Only a person authorized by the rules or by the governing body or the executive

body to institute a suit shall be entitled to file a suit or a petition in this Court or in

other Court or tribunals. Under Section 6 of the Act, it shall be incumbent upon

the members of the society while framing rules or byelaws to categorically

provide as to who shall be entitled to sue on behalf of the society in representative

capacity. In the absence of the categorical provisions in the rules or byelaws of

the society, non of the officer bearers like President, Secretary or Manager or the

Chairman shall be entitled to institute a suit or file an objection in representative

capacity. (Umesh Chandra and Anr. v. Mahila Vidyalaya Society, Lucknow

and others; 2007 (2) ALJ (NOC) 292)

Specific Relief Act S. 16 – Transfer of Property Act – S. 53A – Whether defence U/s. 53A of

the T.P. Act is available in case of oral agreement of sale.

In the case of an oral agreement of sale the defence U/s. 53A of the T.P.

Act is not available to a party, who alleges to be in possession of property.

The relief of Specific Performance is discretionary relief. Except the oral

evidence, there is no clear proof relating to the terms and condition of the

contract, like delivery of possession and obtaining permission from urban land

ceiling authorities. The essential terms and conditions of a concluded contract was

not established. In such circumstances order for refund of earnest money was

proper which was sought in the form of alternative relief. Refusal to grant relief of

specific performance on the strength of an oral agreement of sale cannot be said

improper. (V.R. Sudhakara Rao & Ors. v. T.V. Kameswari; Civil Appeal Nos.

8303-8304 of 2003, decided by Hon‘ble Supreme Court on 18.4.2007 = 2007

(3) Supreme 592)

Stamp Act S. 47A (U.P. Amendment) – U.P. Stamp (Valuation of Property) Rules, R.

3, 5 – Valuation of Property for sale of agriculture land – Presumption

drawn by Collector and fixation of valuation presuming it to be non-

agriculture would be illegal – Every valuation has to be calculated according

to the principles laid down under Rules 3 and 5 of above mentioned rules.

There is noting in the Uttar Pradesh Stamp (Valuation of Property) Rules,

1997 that the Collector may presume transfer of an agricultural land less than 0.16

acre as non-agricultural even if the land is being used for the agricultural

purposes. For assessing valuation he has to consider all relevant factors mentioned

under Rule 3(1)(a)(i) of the Uttar Pradesh Stamp (Valuation of Property) Rules,

1997 so far as agricultural land is concerned. In present case, the total area which

was purchased by the petitioner is .24 acre which is fully cultivable and could be

used for agricultural purposes. the presumption drawn by the Collector and

fixation of valuation presuming it non-agricultural is wholly unwarranted in law.

Every valuation has to be calculated according to the principles laid down under

Rules 3 and 5 of the Uttar Pradesh Stamp (Valuation of Property) Rules, 1997

framed under the Indian Stamp Act. (Ram Sewak and Anr. v. State of U.P. and

Anr.; 2007 (3) ALJ 114)

S. 56 – Deficiency of Stamp Duty – Determination of Imposition of

penalty.

The Court was of the view that the findings recorded by the authorities

below suffer from error of law apparent on the face of record. The writ ptition

deserves to be allowed on the ground that according to the order passed by the

Collector under Rule 340-A of the Stamp Rules, if area of the land purchased is

less than 0.16 acre said transfer is presumed as non-agricultural and stamp duty is

accordingly charged. In the present case the land covered under the sale deed is

0.24 acre and, therefore, under the order of the Collector, the land purchased

through the impugned sale deed could not be presumed as non-agricultural land.

Transferees are real brothers, who purchased 0.24 acre land in a village for

agricultural purposes is also clear from the sale deed and other materials available

on record. The authorities below acted illegally in presuming the land covered

under the sale deed as non-agricultural land and assessing as such accordingly on

the basis of such presumption.

In view of above, impugned orders imposing additional stamp duty and

penalty was unwarranted and unsustainable law. Impugned orders are liable to be

quashed on this ground alone. (Ram Sewak v. State of U.P.; 2007 (102) RD 511)

Taxation

Income Tax Act – S. 147 – Income escaping assessment – What amounts

to

For taking proceeding under S. 147 the Assessing Authority should have

reasons to believe that any income chargeable to tax has escaped assessment for

any assessment year. He can assess or reassess such income and also any other

income chargeable to tax which has escaped assessment and which comes to his

notice subsequently in the course of the proceeding under S. 147. He can also

recomputed the loss or the depreciation allowance or any other allowance as the

case may be for the relevant assessment year. Thus, if an allowance, which was

not admissible under the Act, has been allowed, it would be deemed to be a case

where the income chargeable to tax has escaped assessment. (M/s Universal

Subscriptions Agency Pvt. Ltd. v. The Joint Commissioner of Income Tax,

Special Ranger, Kanpur; 2007 (1) ALJ 376 (DB))

Sales Tax – Purchase Tax – Declared goods – AYs 1994-95 abd 1996-97 to

1999-2000 – Provisions in State Act (S. 5-Am Kerala General Sales Tax Act,

in this case) for levy of purchase tax on taxable goods on which no sales tax

was payable – Applicability.

The Respondent Revenue contended that the purchase tax under S. 5A of

the State Act was capable of being levied only where no sales tax was levied on

the taxable goods u/s 5 thereof and thus only a single-point levy or one-stage levy

took place i.e. either sales tax or purchase tax and not both. The first aspect of the

arguments of the respondent is with respect to the impact of exemption upon the

liability to tax. In our opinion, exemption can only operate when there has been a

valid levy, for if there was no levy at all, there would be nothing to exempt.

(Peekay Re-Rolling Mills Pvt. Ltd. v. Asst. Commissioner and another;

(2007) 4 SCC 30)

Tort Motor Vehicles Act - Ss. 147, 2(14) – Goods vehicle – Passenger travelling

in goods vehicles – Insurer not liable to pay compensation in case of injury or

death of gratuitous passenger.

A bare reading of the provisions makes it clear that the legislative intent

was to prohibit goods vehicle from carrying any passenger. This is clear from the

expression ‗in addition to passengers‘ as contained in definition of ‗goods

vehicle‘ in the old Act. The position becomes further clear because the expression

used is ‗goods carriage‘ is solely for the carriage of goods. Carrying of passengers

in a goods carriage is not contemplated in the Act. There is no provision similar to

Cl. (ii) of the proviso appended to S. 95 of the old Act prescribing requirement of

insurance policy. Even S. 147 of the Act mandates compulsory coverage against

the death of or bodily injury to any passenger of ‗public service vehicle‘. The

proviso makes it further clear that compulsory coverage in respect of drivers and

conductors of public service vehicle and employees carried in goods vehicle

would by limited to liability under W.C. Act. There is no reference to passengers.

Thus, provisions of the Act do not enjoin any statutory liability on the owner of a

vehicle to get his vehicle insured for any passenger travelling in goods carriage

and the insurer would have no liability therefore. (New India Assurance Co.

Ltd. v. Vedwati and Ors. 2007 (3) ALJ 193)

Torts- Malicious prosecution – meaning of

‗Malicious Prosecution‘ means that the proceedings which are complained

of were initiated from a malicious spirit, i.e. from an indirect and improper

motive, and not in furtherance of justice. (West Bengal State Electricity Board

v. Dilip Kumar Ray; AIR 2007 SC 976)

Transfer of Property Act

Ss. 106, 111(a) – Determination of lease – Notice – Necessity of

From bare perusal of agreement shows that the lease was for a fixed term

of five years which was expired. Clause 14 of the agreement clearly stipulated

that the extension of the lease could be granted by mutual agreement between the

parties. There is no material available on record indicating that the petitioner sort

consent of the landlady for continuance of tenancy after expiry of period of five

years. Hon‘ble Apex Court in Smt. Shanti Devi v. Amal Kumar Banerji, AIR

1981 SC 1550 has held that where a lease is for a definite term, it expires by a

flux of time by reason of section 111(a) of the Transfer of Property Act, as such

service of a notice under section 106 of the said Act is not necessary for

determination of lease. (Union of India and Anr. v. Smt. Jagdish Kaur; AIR

2007 All 67)

Lease – Whether there can be automatical renewal of the lease in absence

of desired to renew lease by the lessor –Held;

There can no automatic renewal and there can be renewal only if it is so

desired by the Central Government. There was no desire in that regard by the

Central Government. (Dy. Superintendent, H.P. Corpn. Ltd. & Anr v.

Kolhapur Agri. Market Commtt. Kolhapur; Appeal (civil) 2903 of 2007,


U.P. Consolidation of Holdings Act

S. 5(1)(c)(iii) – Permission under – When not required.

Plain reading of S. 4(2) of Registration Act makes it clear that a document

becomes operative from ten times of its execution and not from the time of its

registration. Thus the sale deed in favour of petitioner no.1 became operative from

the date of its execution i.e. 8.10.1987. Publication of notification under S. 4(2) of

the Act having been made subsequent to the said date i.e. on 10.10.1987, no

permission from Settlement Officer Consolidation was required on the date of

execution and the sale deed cannot be said to be hit by provisions of section

5(1)(c)(iii) of the Act. (Smt. Zakia Kausar v. Dy. Director of Consolidation,

Moradabad;)

U.P. Imposition of Ceiling on Land Holdings Act

S. 48 – Revision – Alongwith delay condonation application filed after

lapse of 20 years against compromise order passed by Appellate Court –

Revision allowed without recording any finding regarding question of delay –

Unsustainable.

Petitioner submitted that there was inordinate delay in filing of the

revision and the Deputy Director of Consolidation has not passed any order

condoning the delay. It is also submitted that the appeal was filed by the

respondent themselves. Therefore it is difficult to believe that they did not enquire

about the fate of the appeal for a long period of 20 years. In paragraph no. 18 of

the writ petition it has been alleged the revision without recording any finding

regarding the question of delay. The respondent could not refer to any order that

may have been passed by the Dy. Director of Consolidation allowing the delay

condonation application. It was necessary for the Dy. Director of Consolidation to

decide the question of delay. Without deciding the delay condonation application,

the revision could not have been allowed. (Ram Anugrah v. Dy. Director of

Consolidation; Allahabad [2007 (102) RD 736)

U.P. Land Revenue Act

S. 48 – Scope of – Revision Court is competent to entertain a revision

against an appellable order where no appeal has been filed.

The Dy. Director of Consolidation has wide powers under S. 48 of the Act

to entertain a revision. The Dy. Director of Consolidation can exercise revisional

jurisdiction under S. 48 against an appealable order passed by the Consolidation

Officer where no appeal has been filed. The revisions filed by the petitions were

under S. 48 of the Act. Considering the fact that the matter is a very older one, it

is appropriate that the Dy. Director of Consolidation decides the matter. (Brij lal

v. Dy. Director of Consolidation; 2007(102) RD 496)

S. 201 – Restoration - Allowing application to set aside order of Board of

Revenue dismissing appeal in default – Grounds for.

In the instant case, ground taken by appellant that one month‘s delay in filing the

restoration application, which was not explained and application for amending

memorandum for second appeal pending and order passed on a day of which

appellant had no notice. Hence the court observed that the appellant was entitled

to have application restored because of Board has not found out whether appellant

had notice of the date. It is therefore, application of restoration has been allowed.

(Sobaran Singh v. Board of Revenue and Anrs.; 2007 (2) ALJ DOC 25

(ALL.)

U.P. Municipalities Act

S. 34 - Scope of

S. 34 is a original power of the Prescribed Authority or the District

Magistrate to prohibit execution of a resolution or order of Municipal Board. S.

34 has not application when the punishment order has been passed by the

punishing authority under the U.P. Municipal Servants Rules, 1967. (Executive

Officer, Nagar Panchayat Chandauli and Anr. v. State of U.P. and Others.;

2007 (2) ALJ DOC 17 (ALL.) (DB))

Ss. 74, 76 – U.P. Municipal Servant‘s Appeal Rules, 1967, Rule 3 -Appeal

against order of dismissal of Class IV employee in Nagar Panchayat- Stay by

Divisional Commissioner – validity of.

President of Nagar Panchayat can dismiss or punish such staff only when

there is no Executive officer-Plea that since President has granted permission to

initiate proceedings, ultimate order of Executive Officer is to be treated as order

of President, so as to make it appealable to Divisional Commissioner cannot be

accepted- Divisional Commissioner being not Appellate authority, had no

jurisdiction to entertain& stay dismissal order. (Executive Officer, Nagar

Panchayat, Chandauli & Anr. v. State of U.P. & Ors.; 2007(2) ALJ DOC 17

(ALL.) (DB)

U.P. Recruitment of Dependants of Government Servants

(Dying in Harness) Rule

Compassionate Appointment – Widow or dependent children of deceased

employee can only be appointed.

All public appointment must be in consonance with Art. 16 of Constitution

of India. Exception carved out therefore, are the cases where appointments are to

be given to the widow or dependent children of the employee who died in

harness. Such an exception is carved out with a view to see that family of the

deceased employee who has died in harness does not become a destitute. No

appointment, therefore, on compassionate ground to a person other than those for

whose benefit the exception has been carved out. Other family members of the

deceased employee would not derive any benefit thereunder. (National Institute

of Technology and others v. Neeraj Kumar Singh; AIR 2007 SC 1155)

U.P. Zamindari Abolition and Land Reforms Act

U.P. Zamindari Abolition and Land Reforms Act & Rules. -- Grant of lease

of government lands.

Parganadhikari is merely authorized to sign the lease deed on behalf

of the Governor. The Rules nowhere confer power upon the Parganadhikari

to allot Government land on lease in favour of any individual. (Raj Kumar

Soni & Anr. v. State of U.P. & Anr Appeal (civil); 1763 of 2007 Decided on

03/04/2007)

Will - Mutation Delhi Land Revenue Act, 1954 – Mutation of Agriculture Land on the

basis of a Will – Will under challenge in Civil Court – Civil Court is alone

competent to decide validity and genuineness of Will – Entry in revenue

record have only fiscal purpose i.e. payment of land revenue.

It is well settled that an entry in Revenue Records does not confer title on a person whose name appears in Record of Rights. It is settled law that entries in the Revenue Records or Jamabandi have only ‘fiscal purpose’ i.e. payment of land-revenue, and no ownership is conferred on the basis of such entries. So far as title to the property is concerned, it can only be decided by a competent Civil Court (vide Jattu Ram v. Hakam Singh and Ors.; AIR 1994 SC 1653). As already noted earlier, civil proceedings in regard to genuineness of Will are pending with High Court of Delhi. The validity and genuineness of the Will can only be decided by a competent Civil Court. (Suraj Bhan & Ors. v. Financial Commr. & Ors.; Civil Appeal No. 1971 of 2007, decided by Hon’ble Supreme Court on 16.4.2007 = 2007 (3) Supreme 539)

***

PART – II

Pending Bill(s)

THE GRAM NYAYALAYAS BILL, 2007

___________

ARRANGEMENT OF CLAUSES

___________

CHAPTER I

PRELIMINARY

CLAUSES

1. Short title, extent and commencement.

2. Definitions.

CHAPTER II

GRAM NYAYALAYA

3. Establishment of Gram Nyayalayas.

4. Headquarters of Gram Nyayalaya.

5. Appointment of Nyayadhikari.

6. Qualifications for appointment.

7. Constitution of cadre of Nyayadhikaris of Gram Nyayalayas.

8. Removal of Nyayadhikari.

9. Terms and conditions of Nyayadhikaris.

10. Nyayadhikari not to participate in proceedings in which he is

interested.

11. Nyayadhikari to hold mobile courts and conduct proceedings in

villages.

12. Seal of Gram Nyayalaya.

CHAPTER III

JURISDICATION, POWERS AND AUTHORITY OF GRAM

NYAYALAYA

13. Limits of jurisdiction of Gram Nyayalayas.

14. Criminal jurisdiction.

15. Civil jurisdiction.

16. Power to amend Schedules.

17. Gram Nyayalaya to have exclusive civil and criminal jurisdiction

in certain matters.

18. Certain disputes not to be tried by Gram Nyayalayas.

19. Gram Nyayalayas to close a case in certain circumstances.

20. Limitation.

21. Transfer of pending cases.

22. Duties of ministerial officers.

CHAPTER IV

PROCEDURE IN CRIMINAL CASES

23. Gram Nyayalaya to follow summary procedure.

24. Pronouncement of judgment.

25. Power of Gram Nyayalayas to transfer cases.

26. Legal aid to parties.

27. Power to compound cases.

28. Gram Nyayalayas not to take cognizance of certain offences.

29. Power of Gram Nyayalayas to order amount of fine to be applied

for certain expenses.

CHAPTER V

PROCEDURE IN CIVIL CASES

30. Duty of Gram Nyayalaya to make efforts for conciliation and

settlement of civil disputes.

31. Appointment of Conciliators.

32. Procedure generally.

33. Special procedure in civil disputes.

34. Transfer of civil disputes.

35. Payment of interest in money decrees.

36. Power of the Gram Nyayalaya to issue commissions.

CHAPTER VI

PROCEDURE GENERALLY

37. Proceedings to be in the official language of the State.

38. Evidence to be on oath.

39. Gram Nyayalayas to have the power of Judicial Magistrate of the

first class for summoning any person.

CHAPTER VII

APPEALS

40. Appeal in criminal cases.

41. Appeal in civil cases.

CHAPTER VIII

MISCELLANEOUS

42. Cases pending in or disposed of by other courts.

43. Assistance of police to Gram Nyayalayas.

44. Nyayadhikaris and employees, etc., to be public servants.

45. Inspection of Gram Nyayalayas.

46. Power to remove difficulties.

47. Power of High Court to make rules.

48. Power of State Government to make rules.

THE FIRST SCHEDULE.

THE SECOND SCHEDULE.

Bill No. XXXVII of 2007

THE GRAM NYAYALAYAS BILL, 2007

A

BILL

to provide for the establishment of Gram Nyayalayas for the purposes of

providing access to justice, both civil and criminal, to the citizens at the grass-

roots level and to ensure that opportunities for securing justice are not denied to

any citizen by reason of social, economic or other disabilities and for matters

connected therewith or incidental thereto.

BE it enacted by Parliament in the Fifty-eighth Year of the Republic of India as

follows:–

CHAPTER I

PRELIMINARY

Short title, extent and commencement.

1. (1) This Act may be called the Gram Nyayalayas Act, 2007.

(2) It extends to the whole of India except the State of Jammu and Kashmir, the

State of Nagaland, the State of Arunachal Pradesh, the State of Sikkim and to the

tribal areas.

Explanation.—In this sub-section, the expression ―tribal areas‖ means the areas

specified in Parts I, II, IIA, and III of the table below paragraph 20 of the Sixth

Schedule to the Constitution within the State of Assam, the State of Meghalaya,

the State of Tripura and the State of Mizoram, respectively.

(3) It shall come into force on such date as the Central Government may, by

notification published in the Official Gazette, appoint, and different dates may be

appointed for different States.

Definitions.

2. In this Act, unless the context otherwise requires,—

(a) ―Gram Nyayalaya‖ means a subordinate court established under sub-section

(1) of section 3;

(b) ―Gram Panchayat‖ means an institution (by whatever name called) of

selfgovernment

constituted, at the village level, under article 243B of the Constitution, for

the rural areas;

(c) ―High Court‖ means, —

(i) in relation to any State, the High Court for that State;

(ii) in relation to a Union territory to which the jurisdiction of the High

Court for a State has been extended by law, that High Court;

(iii) in relation to any other Union territory, the highest Court of criminal

appeal for that territory other than the Supreme Court of India;

(d) ―notification‖ means a notification published in the Official Gazette and the

expression ―notified‖ shall be construed accordingly;

(e) ―Nyayadhikari‖ means the presiding officer of a Gram Nyayalaya appointed

under sub-section (2) of section 5;

(f) ―Panchayat at intermediate level‖ means an institution (by whatever name

called) of self-government constituted, at the intermediate level, under article

243B of the Constitution, for the rural areas in accordance with Part IX of the

Constitution;

(g) ―prescribed‖ means prescribed by rules made under this Act;

(h) ―State Government‖, in relation to a Union territory, means the administrator

thereof appointed under article 239 of the Constitution and any reference to

―Governor‖ shall be construed as a reference to the administrator of such Union

territory;

(i) all other words and expressions used but not defined in this Act and defined in

the Code of Civil Procedure, 1908 or the Code of Criminal Procedure, 1973 shall

have the meanings respectively assigned to them in those Codes.

CHAPTER II

GRAM NYAYALAYA

Establishment of Gram Nyayalayas.

3. (1) The State Government shall, for securing access to justice, both civil and

criminal at the grass-roots level to the citizens, by notification, establish one or

more Gram Nyayalayas for every Panchayat at intermediate level or a group of

contiguous Panchayats at intermediate level in a district or where there is no

Panchayat at intermediate level in any State, for a group of contiguous Gram

Panchayats:

Provided that where the State Government is of opinion that there is a need to

establish additional Gram Nyayalayas for any Panchayat at intermediate level it

shall, in consultation with the High Court, by notification, establish such

additional Gram Nyayalayas as it deems fit.

(2) The Gram Nyayalayas established under sub-section (1) shall be in addition to

the civil and criminal courts established under any other law for the time being in

force.

(3) A Gram Nyayalaya shall be the lowest court of subordinate judiciary in the

State.

Headquarters of Gram Nyayalaya.

4. The headquarters of every Gram Nyayalaya shall be located at the headquarters

of the intermediate Panchayat in which the Gram Nyayalaya is established or such

other place as may be notified by the State Government.

Appointment of Nyayadhikari.

5. (1) Every Gram Nyayalaya established under sub-section (1) of section 3 shall

be presided over by a Nyayadhikari.

(2) The Nyayadhikari shall be appointed by the Governor of the State in

consultation with the High Court in accordance with the rules made in this behalf.

Qualifications for appointment.

6. (1) A person shall not be qualified to be appointed as a Nyayadhikari unless

he—

(a) is eligible to be appointed as a Judicial Magistrate of the first class; and

(b) belongs to the cadre of Nyayadhikaris constituted by the Governor in

consultation with the High Court under section 7.

(2) While appointing a Nyayadhikari, representation shall be given, as far as

practicable, to the members of the Scheduled Castes and Scheduled Tribes,

women and any other classes or communities as may be specified by the State

Government from time to time.

Constitution of cadre of Nyayadhikaris of Gram Nyayalayas.

7. The Governor shall, in consultation with the High Court, constitute a cadre of

Nyayadhikaris comprising of persons with integrity and fulfilling the following,

namely:—

(a) he should possess a degree in law from a recognised University;

(b) he should not be more than forty-five years of age at the time of appointment;

(c) he should have proficiency in at least one official language of the State other

than English.

Removal of Nyayadhikari.

8. (1) A Nyayadhikari may be removed from his office on the ground of

incompetence, gross negligence, corruption, malfeasance or conduct unbecoming

of a Nyayadhikari.

(2) Any person who has been removed from the office of Nyayadhikari shall be

ineligible for appointment under the Government.

Terms and conditions of Nyayadhikaris.

9. The salary and allowances payable to and the other terms and conditions of

service of the Nyayadhikaris shall be such as may be prescribed by the State

Government.

Nyayadhikari not to participate in proceedings in which he is interested.

10. The Nyayadhikari shall not participate in the proceedings of the Gram

Nyayalaya if he has any interest or is involved in the subject matter of the dispute

pending consideration or is related to one of the parties to the proceeding and in

such a case the Nyayadhikari shall refer the matter to the District Judge or

Sessions Judge, as the case may be, for transfer of the case to any other Gram

Nyayalaya.

Nyayadhikari to hold mobile courts and conduct proceedings in villages.

11. (1) The Nyayadhikari shall periodically visit the villages falling under his

jurisdiction

and conduct proceedings (including taking of evidence, deciding of cases and the

holding

of mobile court if considered necessary) at any place which it considers is in close

proximity to the place where the parties ordinarily reside or where the whole or

part of the cause of action had arisen:

Provided that where the Gram Nyayalaya decides to hold mobile court outside its

headquarters, it shall give wide publicity as to the date and place where it

proposes to hold mobile court.

(2) The State Government shall extend all facilities to the Gram Nyayalaya

including the provision of vehicles for holding mobile court and additional

security for the Nyayadhikari while conducting proceedings outside its

headquarters.

Seal of Gram Nyayalaya.

12. Every Gram Nyayalaya established under this Act shall use a seal of the court

in such form and dimensions as may be prescribed by the State Government.

CHAPTER III

JURISDICTION, POWERS AND AUTHORITY OF GRAM NYAYALAYA

Limits of jurisdiction of Gram

13. The State Government shall, by notification, define the local territorial limits

of the jurisdiction of any Gram Nyayalaya in consultation with the High Court

and may, from time to time, depending on the workload, alter or readjust the local

territorial limits in like manner.

Criminal jurisdiction.

14. (1) Notwithstanding anything contained in the Code of Criminal Procedure,

1973 or any other law for the time being in force, the Gram Nyayalaya may take

cognizance of an offence on a complaint or on a police report and shall—

(a) try all offences specified in Part I of the First Schedule; and

(b) try offences and grant relief specified under the enactments specified in Part II

of that Schedule:

Provided that where the Gram Nyayalaya, at any stage of the trial, is of the

opinion that the accused should be sentenced to imprisonment exceeding one

year, it may forward the case to the court of session for referring it to the court of

competent jurisdiction.

(2) Without prejudice to the provisions of sub-section (1), the Gram Nyayalaya

shall also try all offences under the Central Acts where—

(i) the maximum punishment provided for is imprisonment not exceeding one

year, whether with or without fine;

(ii) the punishment provided for is only fine;

(iii) the offences are compoundable, whether with or without the permission of

the court, under the Code of Criminal Procedure, 1973 or under any other law for

the time being in force.

(3) Without prejudice to the provisions of sub-sections (1) and (2), the Gram

Nyayalaya shall also try all such offences or grant such relief under the State Acts

by including them in Part III of the First Schedule.

Civil jurisdiction.

15. (1) Notwithstanding anything contained in any other law for the time being in

force and subject to the provisions of the Code of Civil Procedure, 1908 and sub-

section (2), the Gram Nyayalayas shall have jurisdiction to try all original suits

and proceedings of such categories and subject to such pecuniary limits as may be

notified by the High Court from time to time.

(2) The Gram Nyayalaya shall be the lowest court of competent jurisdiction to

hear and dispose of suits of a civil nature falling under the classes of disputes

specified in the Second Schedule.

Power to amend Schedules.

16. (1) Where the Central Government is satisfied that it is necessary or expedient

so to do, it may, by notification, add to or omit any item from the First Schedule

or the Second Schedule, as the case may be, and thereupon the First Schedule, or

the Second Schedule, as the case may be, shall be deemed to have been amended

accordingly.

(2) Every notification issued under sub-section (1) shall be laid before each House

of Parliament.

(3) If the State Government is satisfied that it is necessary or expedient so to do, it

may, in consultation with the High Court, by notification, add to any item in Part

III of the First Schedule or Part III of the Second Schedule or omit from it any

item in respect of which the State Legislature is competent to make laws and

thereupon the First Schedule or the Second Schedule, as the case may be, shall be

deemed to have been amended accordingly.

(4) Every notification issued under sub-section (3) shall be laid before the State

Legislature.

Gram Nyayalaya to have exclusive civil and criminal jurisdiction in certain

matters.

17. Notwithstanding anything contained in the Code of Criminal Procedure, 1973,

or the Code of Civil Procedure, 1908, or any other law for the time being in force

and subject to the provisions of this Act, a Gram Nyayalaya shall have exclusive

jurisdiction in respect of disputes covered by the subject matters specified in

sections 14 and 15.

Certain disputes not to be tried by Gram Nyayalayas.

18. Notwithstanding anything contained in section 13, section 14 or section 15,

the Gram Nyayalaya shall not have jurisdiction to take cognizance of the

following classes of disputes, namely:–

(a) a dispute by or against the Central Government or the State Government or a

public servant for anything which is in good faith done or purported to have been

done by him in his official capacity;

(b) a dispute where one of the parties is a minor or a person of unsound mind;

(c) any claim cognizable by revenue courts.

Gram Nyayalayas to close a case in certain circumstances.

19. If the Nyayadhikari is satisfied that it is necessary in the interest of justice to

close a case, it may, on its own motion or on an application by either party to the

civil dispute, pass orders closing the case, and advise the parties to approach the

appropriate civil court in respect of matters relating to any complicated issue of

fact or law which should be decided by any other competent court of law:

Provided that whenever a case is closed by the Nyayadhikari under this section,

the period for which the case has been pending in it shall be excluded for the

purposes of computing the period of limitation.

Limitation.

20. The provisions of the Limitation Act, 1963, and the provisions of Chapter

XXXVI of the Code of Criminal Procedure, 1973 shall be applicable to the Gram

Nyayalaya.

Transfer of pending cases.

21.(1) The District Court may, with effect from such date as may be notified,

transfer all the cases pending before the court subordinate to it, both civil and

criminal, to the Gram Nyayalaya competent to hear and try.

(2) The Gram Nyayalaya may in its discretion continue with the cases from the

stage at which it was pending before the court from which it was transferred or it

may de novo hear or try the case, as the case may be.

Duties of ministerial officers.

22. (1) The State Government shall determine the nature and categories of the

officers and other employees required to assist the Gram Nyayalaya in the

discharge of its functions and provide the Gram Nyayalaya with such officers and

other employees as it may think fit.

(2) The salaries and allowances payable to and the other conditions of service of

the officers and other employees of the Gram Nyayalaya shall be such as may be

prescribed by the State Government.

(3) The officers and other employees of a Gram Nyayalaya shall perform such

duties as may, from time to time, be assigned to them by the Nyayadhikari.

CHAPTER IV

PROCEDURE IN CRIMINAL CASES

Gram Nyayalaya to follow summary procedure.

23. (1) Subject to the provisions of sub-section (2), the provisions of the Code of

Criminal Procedure, 1973 and the rules made thereunder shall apply to the

proceedings in respect of criminal cases triable by the Gram Nyayalaya under this

Act.

(2) While exercising criminal jurisdiction, the Gram Nyayalaya shall follow the

procedure for summary trials and the provisions of sections 262 to 265 (both

inclusive) of the Code of Criminal Procedure, 1973 shall apply accordingly.

(3) The trial of offences by the Gram Nyayalaya under this Act shall be, as far as

may be, on a day-to-day basis and every case shall be disposed of within a period

of ninety days from the date of its institution.

Pronouncement of judgment.

24. (1) The Gram Nyayalaya shall pronounce its judgment within one week from

the last date of its hearing.

(2) The Gram Nyayalaya shall deliver a copy of its judgment immediately to both

the parties free of cost.

(3) The Gram Nyayalaya shall, in cases where imprisonment has been awarded,

forward

copies of the judgment along with the warrant of commitment to the officer-in-

charge of the jail concerned, the police station concerned, and the Sessions Judge

having jurisdiction.

Power of Gram Nyayalayas to transfer cases.

25. If at any stage of the proceedings it appears to the Gram Nyayalaya that the

case is one which ought to be tried by a Judicial Magistrate of the first class or

any other superior court, or if at the close of a trial, the Gram Nyayalaya is of the

opinion that the accused is guilty and that he ought to receive a punishment more

severe than that which the Gram Nyayalaya is empowered to impose, it shall

submit the case to the appropriate Magistrate having jurisdiction who shall

transfer the case to his own court and proceed according to law.

Legal aid to parties.

26. (1) The State Government shall appoint in each Gram Nyayalaya one or more

advocates for the purpose of conducting the criminal cases in the Gram

Nyayalaya.

(2) Notwithstanding anything contained in sub-section (1) or in the Code of

Criminal Procedure, 1973, in a criminal proceeding before the Gram Nyayalaya,

the complainant may, engage an advocate of his choice and at his expense to

present the case of the prosecution with the leave of the Gram Nyayalaya.

(3) The State Legal Services Authority, constituted under section 6 of the Legal

Services

Authorities Act, 1987, shall prepare a panel of advocates and assign at least two

of them to be attached to each Gram Nyayalaya so that their services shall be

readily available to the parties, if they so desire.

Power to compound cases.

27. Any offence cognizable by a Gram Nyayalaya under this Act may be

compounded with its permission, if such offence is compoundable with or without

the permission of the court under any law for the time being in force.

Gram Nyayalayas not to take cognizance of certain offences.

28. The Gram Nyayalaya shall not take cognizance of any offence which is

punishable with imprisonment for more than one year or if the accused has been

previously convicted and sentenced to suffer imprisonment for a term of one year

or more.

Power of Gram Nyayalayas to order amount of fine to be applied for certain

expenses.

29. In imposing any fine, the Gram Nyayalaya may direct that the whole or any

portion of the fine recovered shall be applied—

(a) towards defraying the expenses incurred in the case by the complainant; or

(b) in giving compensation to the victim of an offence or to a person for any

material loss or damage caused to him by reason of commission of the offence.

CHAPTER V

PROCEDURE IN CIVIL CASES

Duty of Gram Nyayalaya to make efforts for conciliation and settlement of

civil disputes.

30. (1) In every suit or proceeding of a civil nature instituted endeavour shall be

made by the Gram Nyayalaya in the first instance, where it is possible to do so,

consistent with the nature and circumstances of the case, to assist, persuade and

conciliate the parties in arriving at a settlement in respect of the subject matter of

the suit or proceeding, as the case may be, and for this purpose a Gram Nyayalaya

may, subject to the rules made by the High Court in this behalf, follow such

procedure as it may deem fit.

(2) If, in any suit or proceeding, at any stage, it appears to the Gram Nyayalaya

that there is a reasonable possibility of a settlement between the parties, the Gram

Nyayalaya may adjourn the proceedings for such period as it thinks fit to enable

them to make attempts to effect such a settlement.

(3) Where any proceeding is adjourned under sub-section (2), the Gram

Nyayalaya may in its discretion refer the matter to one or more conciliators for

effecting a settlement between the parties.

(4) The power conferred by sub-section (2) shall be in addition to, and not in

derogation of, any other power of the Gram Nyayalaya to adjourn the

proceedings.

Appointment of Conciliators.

31.(1) For the purposes of section 30, the District Judge shall, in consultation with

the District Magistrate, prepare a panel consisting of the names of social workers

at the village level having integrity for appointment as Conciliators who posses

such qualifications and experience as may be prescribed by the High Court.

(2) The sitting fee and other allowances payable to and the other terms and

conditions of engagement of Conciliators shall be such as may be prescribed by

the State Government.

Procedure generally.

32. (1) Subject to the other provisions of this Act, and the rules made thereunder,

the Gram Nyayalaya shall be deemed to be a civil court and shall have all the

powers of such court for dealing with the suits of a civil nature.

(2) The Gram Nyayalaya shall not be bound by the procedure laid down in the

Code of Civil Procedure, 1908 or the rules of evidence as laid down in the Indian

Evidence Act, 1872, but shall be guided by the principles of natural justice and

subject to the other provisions of this Act and any rule made by the High Court,

the Gram Nyayalaya shall have the power to regulate its own procedure including

the fixing of places and times of its proceedings.

(3) In respect of matters of a civil nature for which no express provision has been

made in this Act, the High Court may, by rules, provide for them.

Special procedure in civil disputes.

33. (1) Notwithstanding anything contained in any other law relating to the court

fee, any person desirous of settlement of any dispute or matter of a civil nature

referred to in the Second Schedule may make an application to the Gram

Nyayalaya in such form and in such manner as may be prescribed by the High

Court and accompanied by a fee of one hundred rupees or such other amount as

may be prescribed by the High Court from time to time.

(2) The Gram Nyayalaya shall issue a notice accompanied by a copy of the

application served on the opposite party in such manner as may be prescribed by

the High Court fixing a date for his appearance or to file a written reply.

(3) After the opposite party files his written reply, the Gram Nyayalaya shall fix a

date for hearing and inform all the parties to be present in person or through their

advocates or authorised agents.

(4) On the date fixed for hearing the Gram Nyayalaya shall hear both the parties

in regard to their respective contentions and if the dispute does not require

recording of any evidence, pronounce the decision.

(5) In case any of the parties to the dispute desires to produce oral or documentary

evidence, or both, and the Gram Nyayalaya is of the opinion that the dispute

involves questions of fact which have to be decided by recording oral or

documentary evidence for a just decision, the Gram Nyayalaya shall record the

summary of evidence, if any, on a date fixed for hearing.

(6) Notwithstanding that the procedure laid down in the Code of Civil Procedure,

1908 shall not be applicable to civil disputes or claims before the Gram

Nyayalaya, the Gram Nyayalaya shall, for the purposes of this Act, have the same

powers as are vested in a civil court under the Code of Civil Procedure, 1908

while trying a claim or dispute in respect of the following matters, namely: —

(i) summoning and enforcing attendance of any person or witness and examining

him on oath;

(ii) requiring the discovery and production of any document or other material

object producible as evidence;

(iii) receiving of evidence on affidavits;

(iv) dismissing an application for default or deciding it ex parte;

(v) any other matter which may be prescribed by the State Government.

(7) The Gram Nyayalaya shall have the power to proceed ex parte if any of the

parties does not appear.

(8) In regard to any incidental matter that may arise during the course of the

proceedings, the Gram Nyayalaya shall adopt such procedure as it may deem just

and proper in the interest of justice.

(9) The proceedings shall, as far as is practicable, be consistent with the interests

of justice and the hearing shall be continued on a day to day basis until its

conclusion, unless the Gram Nyayalaya finds the adjournment of the hearing

beyond the following day to be necessary for reasons to be recorded in writing.

(10) The Gram Nyayalaya shall pronounce the judgment within a period of ninety

days from the date of statement of claim application, and within one week of the

last day of hearing of the case.

(11) The judgment shall contain the number of the application, the names of the

parties, the particulars of the claim, the points for determination, the summary of

evidence adduced on either side, if any, and the findings reached by the Gram

Nyayalaya.

(12) A copy of the order shall be delivered to both the parties within three days on

payment of such fees as may be prescribed by the State Government.

Transfer of civil disputes.

34. The District Judge having jurisdiction may, on an application made by any

party or when there is considerable pendency with one Gram Nyayalaya or

whenever he considers it necessary in the interests of justice, transfer any case

pending before a Gram Nyayalaya to any other Gram Nyayalaya within his

jurisdiction.

Payment of interest in money decrees.

35. (1) Where in any claim for money due the Gram Nyayalaya passes an order

for payment of money, it may also order payment of interest thereon at a rate not

exceeding twelve per cent. per annum from the date of the claim statement

application till the date of payment.

(2) The Gram Nyayalaya may, if it deems fit, direct payment in instalments with

or without interest.

Power of the Gram Nyayalaya to issue commissions.

36. The Gram Nyayalaya shall have all the powers of the civil court to issue

commission and the provisions of sections 75 to 78 of the Code of Civil

Procedure, 1908 shall apply as if for the words ―the Court‖ or ―any Court‖

referred to therein, the words ―the Gram Nyayalaya‖ had been substituted.

CHAPTER VI

PROCEDURE GENERALLY

Proceedings to be in the official language of the State.

37. The proceedings before the Gram Nyayalaya and its judgment shall, as far as

practicable, be in one of the official languages of the State other than the English

language.

Evidence to be on oath.

38. The evidence given orally before a Gram Nyayalaya shall be on oath or on

solemn affirmation.

Gram Nyayalayas to have the power of Judicial Magistrate of the first class

for summoning any person.

39. (1) The Gram Nyayalaya shall have the powers of a Judicial Magistrate of the

first class in respect of all matters relating to summons, securing the presence of

witnesses, attendance of persons confined or detained in prisons, production of

any material evidence including any records, title deeds, agreements, contracts,

and any other thing, object or such relevant material as it may deem fit.

(2) Where any person has been given notice or summon to appear before the

Gram Nyayalaya, the Gram Nyayalaya shall record his statement and thereafter

the Gram Nyayalaya may dispense with his attendance at the hearing of the case.

CHAPTER VII

APPEALS

Appeal in criminal cases.

40. (1) An appeal against any order or sentence passed by a Gram Nyayalaya in a

criminal matter shall lie to the Court of Sessions exercising jurisdiction over the

area within which the Gram Nyayalaya is situated, within thirty days of the

passing of such order or sentence.

(2) An appeal preferred under sub-section (1) shall be heard and disposed of by an

Assistant Sessions Judge subordinate to the Sessions Judge within six months

from the date of filing of the appeal.

(3) The Assistant Sessions Judge may, pending disposal of the appeal, direct the

suspension of the sentence or order appealed against.

(4) The decision of the Assistant Sessions Judge under sub-section (2) shall be

final and no appeal or revision shall lie from the decision of the Assistant Sessions

Judge.

Appeal in civil cases.

41. (1) An appeal against any final order or judgment passed by a Gram

Nyayalaya in a civil matter shall lie to the District Court exercising jurisdiction

over the area within which the Gram Nyayalaya is situated within thirty days of

the passing of such order or judgment.

(2) An appeal preferred under sub-section (1) shall be heard and disposed of by

the Senior Civil Judge subordinate to the District Judge, within six months from

the date of filing of the appeal.

(3) The District Court may, pending disposal of the appeal, direct the suspension

of the order or judgment appealed against.

(4) The decision of the Senior Civil Judge under sub-section (2) shall be final and

no appeal or revision shall lie from the decision of the Senior Civil Judge.

CHAPTER VIII

MISCELLANEOUS

Cases pending in or disposed of by other courts.

42. (1) The Gram Nyayalaya shall not try any civil matter which is the subject

matter of any proceeding pending or disposed of by a competent court unless it is

a pending case transferred to it by the District court under section 21.

(2) Where a case is pending in any court against an accused person in respect of

any offence or where an accused person has been tried for any offence, the Gram

Nyayalaya shall not take cognizance of any such offence or on the same facts, or

any other offence of which the accused might have been charged or convicted.

Assistance of police to Gram Nyayalayas.

43. (1) Every police officer functioning within the local limits of jurisdiction of a

Gram Nyayalaya shall be bound to assist the Gram Nyayalaya in the exercise of

its lawful authority.

(2) Whenever the Gram Nyayalaya, in the discharge of its functions, requests

revenue or police officer or a Government servant to provide assistance to the

Gram Nyayalaya, he shall be bound to provide such assistance.

Nyayadhikaris and employees, etc., to be public servants.

44. The Nyayadhikaris and the officers and other employees of the Gram

Nyayalayas shall be deemed, when acting or purporting to act in pursuance of any

of the provisions of

this Act, to be public servants within the meaning of section 21 of the Indian

Penal Code.

Inspection of Gram Nyayalayas.

45. The District Judge shall authorise any Senior Civil Judge or Assistant

Sessions Judge to inspect the Gram Nyayalayas within his jurisdiction once in

every six months or such other period as the High Court may specify and issue

such instructions, as he considers necessary and submit a report to the High Court.

Power to remove difficulties.

46. (1) If any difficulty arises in giving effect to the provisions of this Act, the

Central Government may, by order published in the Official Gazette, make such

provisions not inconsistent with the provisions of this Act, as may appear to it to

be necessary or expedient for removing the difficulty:

Provided that no order shall be made under this section after the expiry of a period

of three years from the date of commencement of this Act.

(2) Every order made under this section shall be laid, as soon as may be after it is

made, before each House of Parliament.

Power of High Court to make rules.

47. (1) The High Court may, by notification, make rules for carrying out the

provisions of this Act.

(2) In particular and without generality of the foregoing power, such rules may

provide for all or any of the following matters, namely:—

(a) the receipt and custody of all documents and records by or on behalf of the

Gram Nyayalaya and the grant of judgment, orders and other records;

(b) the place and the manner in which the proceedings of the Gram Nyayalaya

shall be conducted;

(c) the manner in which any process is issued by the Gram Nyayalaya;

(d) the particulars of the registers and records to be maintained by the Gram

Nyayalaya;

(e) the conduct of training programme for the Nyayadhikaris and Conciliators of

the Gram Nyayalayas;

(f) the supervision and inspection of the Gram Nyayalayas in respect of specified

matters;

(g) rules regulating the procedure for assisting, persuading or conciliation of

parties in arriving at a settlement in a suit or proceeding under sub-section (1) of

section 30;

(h) the detailed procedure for conduct of civil suits under sub-sections (1) and (3)

of section 30;

(i) the conditions which a person shall fulfil to be eligible to be included in the

panel of Conciliators under sub-section (1) of section 31;

(j) the form and the manner of service of notice under sub-section (1) of section

33;

(k) any other matter not being a matter specified in section 48 in respect of which

rules are required to be made by the High Court for carrying out the provisions of

this Act.

Power of State Government to make rules.

48. (1) The State Government may, by notification, make rules for carrying out

the provisions of this Act.

(2) In particular, and without prejudice to the generality of the foregoing power,

such rules may provide for all or any of the following matters, namely:—

(a) the rules relating to appointment of the Nyayadhikari under sub-section (2) of

section 5;

(b) the salary and allowances payable to and the other terms and conditions of

service of Nyayadhikaris under section 9;

(c) the form and dimensions of the seal of the Gram Nyayalaya under section 12;

(d) the salaries and allowances payable to and the other terms and conditions of

service of the officers and other employees of the Gram Nyayalayas under sub-

section (2) of section 22.

(e) the sitting fee and other allowances payable to and the other terms and

conditions of engagement of Conciliators under sub-section (2) of section 31;

(f) the fee payable in respect of copies of orders of the Gram Nyayalaya under

sub-section (12) of section 33;

(g) any other matter which may be prescribed or in respect of which rules are

required to be made by the State Government.

(3) Every rule made by the State Government under this Act shall be laid as soon

as may be after it is made, before the State Legislature.

MGIPMRND—1514LAW(S-5)—16-04-2007.

***

THE FIRST SCHEDULE

[See sections 14 and 16]

PART I

OFFENCES UNDER THE INDIAN PENAL CODE (45 OF 1860)

(i) Sections 109 to 113 in so far as they relate to the offences mentioned at

subitem (ii).

(ii) Sections 120B (relating to any other criminal conspiracy), 137, 138, 140, 143,

149, 150, 151, 153, 154, 155, 156, 157, 158 (being hired to take part in an

unlawful assembly or riot except in case of going with arm), 160, 163, 166, 168,

171, 171E, 171F, 171G, 171H, 171-I, 172, 173, 174, 175, 176, 177 (relating to

knowingly furnishing false information to a public servant), 178, 179, 180, 182,

183, 184, 185, 186, 187, 188, 190, 202, 225B, 228, 264, 265, 266, 267, 269, 271,

272, 273, 274, 275, 276, 277, 278, 279, 280, 282, 283, 284, 285, 286, 287, 288,

289, 290, 291, 294, 294A, 296, 297, 298, 309, 323, 334, 336, 337, 341, 342, 352,

357, 358, 374, 417, 426, 434, 447, 448, 482, 486, 489, 489E, 491, 508, 509 and

510.

(iii) Sections 125, 324, 332, 353, 379, 427, 428, 429, 430, 431, 432 and 504.

PART II

OFFENCES AND RELIEF UNDER THE OTHER CENTRAL ACTS

(i) The Protection of Civil Rights Act, 1955 (22 of 1955).

(ii) The Bonded Labour System (Abolition) Act, 1976 (19 of 1976).

(iii) The Protection of Women from Domestic Violence Act, 2005 (43 of 2005).

(iv) The Minimum Wages Act, 1948 (9 of 1948).

(v) The Payment of Wages Act, 1936 (4 of 1936).

(vi) Order for maintenance of Wives, Children and Parents under Chapter IX of

the Code of Criminal Procedure, 1973 (2 of 1974).

(vii) The Equal Remuneration Act, 1976 (25 of 1976).

PART III

OFFENCES UNDER THE STATE ACTS

(To be notified by the concerned State Government)

THE SECOND SCHEDULE

[See sections 15 (2) and 16]

PART I

SUITS OF A CIVIL NATURE

WITHIN THE JURISDICTION OF GRAM NYAYALAYAS

(i) Civil Disputes:

(a) Right to purchase of property;

(b) Use of common pasture;

(c) Regulation and timing of taking water from irrigation channel.

(ii) Property Disputes:

(a) Village and farm houses (Possession);

(b) Water channels;

(c) Right to draw water from a well or tube well.

(iii) Other Disputes:

(a) Claims under the Minimum Wages Act, 1948 (9 of 1948);

(b) Claims under the Payment of Wages Act, 1936 (4 of 1936);

(c) Money suits either arising from trade transaction or money lending;

(d) Disputes arising out of the partnership in cultivation of land;

(e) Disputes as to the use of forest produce by inhabitants of Gram

Panchayats.

PART II

CLAIMS AND DISPUTES UNDER THE CENTRAL ACTS NOTIFIED

UNDER SUBSECTION (1) OF SECTION 14 BY THE CENTRAL

GOVERNMENT

PART III

CLAIMS AND DISPUTES UNDER THE STATE ACTS

NOTIFIED UNDER SUB-SECTION (2) OF SECTION 14 BY THE STATE

GOVERNMENT

(To be notified by the concerned State Government)

***

THE PREVENTION OF UNSOLICITED TELEPHONIC CALLS AND

PROTECTION OF PRIVACY BILL, 2006

A

BILL

to prohibit unsolicited telephone calls by business promoters or individuals to

persons not desirous of receiving such calls and for the protection of individual

privacy of citizens and for matters connected therewith or incidental thereto.

BE it enacted by Parliament in the Fifty-seventh Year of the Republic of

India as follows:—

Short title, extent and commencement.

1. (1) This Act may be called the Prevention of Unsolicited Telephonic Calls and

Protection of Privacy Act, 2006.

(2) It extends to the whole of India.

(3) It shall come into force at once.

Definitions.

2. In this Act, unless the context otherwise requires:—

(a) ―prescribed‖ means prescribed by rules made under this Act;

(b) words and expressions used but not defined in this Act but defined in the

Indian Penal Code, 1860, the Indian Telegraph Act, 1885 and the

Information Technology Act, 2000 shall have the same meaning as is

respectively assigned to them in those Acts.

Prohibition of making unsolicited telephone calls.

3. (1) The making of unsolicited telephone calls for promoting business interests

or for other purposes or for harassment is hereby prohibited.

(2) Whoever contravenes the provisions of sub-section (1) shall be guilty of an

offence under this Act.

Mobile operators not to pass on information of subscribers.

4. Notwithstanding anything contained in any other law for the time being in

force, the licenced Mobile operators shall not pass on the information of their

subscribers to any telemarketing service provider, Banks, Insurance

Companies or such other service provider so as to protect the subscribers from

unsolicited telephone calls.

Right to privacy.

5. (1) Every person shall have the right of privacy and to lead and enjoy his

personal life without unwarranted infringement thereof and no person shall be

deprived of this right except according to procedure established by law for the

time being in force.

(2) whoever contravenes the provisions of sub-section (1) shall be guilty of an

offence under this Act.

Restriction on use of cellphone camera.

6. No person shall use a cellular phone having built in camera if it does not

produce a sound of minimum sixty-five decibels and flashes a light when used

to take a picture of any object or with such other conditions as may be

prescribed.

Restrictions of photography violating privacy.

7. Subject to public order, morality and health no person with a view to

blackmail the person or for making commercial gains therefrom, shall

photograph:-

(a) any part or whole of a human body whether nude or semi-nude or

otherwise without the consent of the person concerned; and

(b) any part or whole of a human body at a public place without the consent of

the person concerned.

Penalty.

8. (1) Whoever contravenes the provisions of,—

(i) Section 3 shall be punished with imprisonment for a term which shall not

be less than two years but may extend to four years and also with fine

which may extend to two lakh rupees;

(ii) Section 5 shall be punished with imprisonment for a term which shall not

be less than five years but may extend to seven years and also with fine

which may extend to five lakh rupees;

(iii)Section 6 shall be punishable with imprisonment for six months or with

fine which may extend to two lakh rupees or with both.

(2) Any mobile company which contravenes the provisions of section 4 shall

be punished with fine which may extend to ten lakh rupees and suspension of

its licence for a period of one year.

Offences to be cognizable.

9. Notwithstanding anything contained in the Code of Criminal Procedure, 1973

every offence punishable under this Act shall be cognizable.

Overriding effect of the Act.

10. The provision of this Act shall have effect notwithstanding anything

inconsistent therewith contained in any other law for the time being in force.

Power to make rules.

11. The Central Government may, by notification in the Official Gazette,

make rules for carrying out the purposes of this Act

Words and Phrases Rashness:

Rashness means doing an act with the consciousness of a risk that evil

consequence is will follow but with the hope that it will not. (Rathnashalvan v.

State of Karnataka; Criminal Appeal No. 45 of 2007, decided on January 11,

2007 by the Hon‘ble Supreme Court = (2007) 3 SCC 474)

Criminal Rashness:

Criminal Rashness means hazarding a dangerous or wanton act with the

knowledge that it is dangerous or wanton and the further knowledge that it may

cause injury but done without any intention to cause injury or knowledge that it

would probably be caused. (Rathnashalvan v. State of Karnataka; Criminal

Appeal No. 45 of 2007, decided on January 11, 2007 by the Hon‘ble Supreme

Court = (2007) 3 SCC 474)

Negligence:

Negligence is breach of duty imposed by law. (Rathnashalvan v. State of

Karnataka; Criminal Appeal No. 45 of 2007, decided on January 11, 2007 by

the Hon‘ble Supreme Court = (2007) 3 SCC 474)

Criminal Negligence:

Criminal Negligence is failure to exercise reasonable and proper care, its extent

depend on the circumstances of each case. (Rathnashalvan v. State of

Karnataka; Criminal Appeal No. 45 of 2007, decided on January 11, 2007 by

the Hon‘ble Supreme Court = (2007) 3 SCC 474)

Gainful employment:

Include self-employment wherefrom income is generated.

Income either from employment in an establishment or from self-employment

merely differentiates the sources from which income is generated, the end use

being the same. (North East Karnataka Road Transport Corporation v. M.

Nagangouda; Criminal Appeal No. 129/2007 decided on January 9, 2007 by

the Hon‘ble Supreme Court = AIR 2007 SC 973)

Immediately:

Term ―immediately‖ has two meanings –

One, indicating the relation of cause and effect and the other the absence of time

between two events. In the former sense, it means proximately, without

intervention of anything, as opposed to ―immediately‖. In the latter sense, it

means instantaneously. The term ―immediately‖ is, thus required to be construed

as meaning with all reasonable speed, considering the circumstances of the case.

In a given situation the term ―immediately‖ may mean ―without reasonable time.‖

Where an act is to be done within reasonable time, it must be done immediately.

(Rosali V. v. Talco Bank & Ors.; Civil Appeal No. 6129 of 2000, decided on

23.1.2007 by the Hon‘ble Supreme Court = AIR 2007 SC 998)

Ratio decidendi:

Ratio decidendi is the reason for the decision and not the final order

containing the decision.

Every judgment of superior courts has three segments namely:

(i) the facts and the point at issue;

(ii) the reasons for the decision; and

(iii) the final order containing the decision.

The reasons for the decision or the ratio decidendi is not the final order containing

the decision. In fact, in a judgment, though the ratio decidendi may point to a

particular result, the decision (final order relating to relief) may be different and

not a natural consequence of the ratio decidendi of the judgment. This may

happen either on account of any subsequent event or the need to mould the relief

to do complete justice in the matter. It is the ratio decidendi of a judgment and not

the final order in the judgment, which forms a precedent. (Sanjay Singh and

Another v. U.P. Public Service Commission, Allahabad and Another; Writ

Petition (C) No. 165 of 2005 with Nos. 172, 409, 466 and 467 of 2005, decided

on January 9, 2007 by the Hon‘ble Supreme Court = (2007) 3 SCC 720)

Scaling Process:

It is the process by which Raw marks in different subjects are adjusted to a

common scale. It is a recognized method of ensuring uniformity inter se among

the candidates who have taken examinations in different subjects, as, for example

the Civil Services Examination. In the Judicial Service Examination, the

candidates were required to take the examination in respect of the all five subjects

and the candidates did not have any option in regard to the subjects. (Sanjay

Singh and Another v. U.P. Public Service Commission, Allahabad and

Another; Writ Petition (C) No. 165 of 2005 with Nos. 172, 409, 466 and 467 of

2005, decided on January 9, 2007 by the Hon‘ble Supreme Court = (2007) 3

SCC 720)

Distinction between “irregular appointment” and “illegal appointment”:

There is a distinction between ―irregular appointment‖ and ―illegal appointment‖.

If an appointment is irregular, the same can be regularised and the court may not

take serious note of irregularity but an ―illegal appointment‖ can not be legalised.

If the provisions of Article 14 & 16 of the Constitution and Statutory Rules are

not complied with in an appointment, such appointment is illegal and is non est in

the eye of the law, which renders the appointment to be nullity. (Ashok Kumar

Sonkar v. Union of India and Others; Civil Appeal No. 4761 of 2006, decided

on February 23, 2007 by the Hon‘ble Supreme Court = (2007) 4 SCC 54)

“May be true” and “must be true”:

Hon‘ble Supreme Court held as under on these words & phrases:

―The court has to be watchful and avoid the danger of allowing the suspicion to

take the place of legal proof, for sometimes unconsciously it may happen to be a

short step between moral certainty and legal proof. There is a long mental

distance between ―may be true‖ and ―must be true‖ and the same divides

conjectures from sure conclusions. ‖ (Ram Singh v. Sonia & Others; Cri.

Appeals No. 895 of 2005 with Nos. 894 of 2005 and 142 of 2006, decided on

February 15, 2007 = (2007) 2 SCC (Cri) 1)

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la[;k &1351@N%&iq0&3&25ih@2007] fnukWd 16 twu] 2007%

izs"kd]

ts0,u0 pSEcj]

izeq[k lfpo] xg̀]

mRrj izns’k 'kkluA

lsok esa]

¼1½ leLr izeq[k lfpo@lfpo]


¼2½ iqfyl egkfuns’kd]


¼3½ vij iqfyl egkfuns’kd]

mRrj izns’k iqfyl eq[;ky;]

bykgkcknA

x`g¼iqfyl½ vuqHkkx&3 y[kuÅ% fnukWd 16

twu] 2007

fo"k;%& fo’ks"k vuqla/kku ny ¼,l0vkbZ0Vh0½ dk xBu ds lEcU/k

esaA

egksn;]

dkuwu dk jkt LFkkfir djus ds fy, ;g vko’;d gS fd u

dsoy NksVs vijk/kh cfYd cM+s] vljnkj ,oa fofHkUu inksa ij vklhu ,sls

O;fDr ,oa yksd lsod tks viuh igqWp ,oa in dk nq:i;ksx djds xaHkhj

mailto:lfpo@lfpo

mailto:lfpo@lfpo

vkfFkZd vijk/k djrs gSa] dks Hkh dkuwu ds nk;js esa yk;k tk;sA cnyrh

ifjfLFkfr;ksa esa izns’k esa mRre Js.kh ds ,d vUrfoZ"k;d (Multi-

Disciplinary) vuqla/kku ny dh vko’;drk gS tks izHkko’kkyh

O;fDr;ksa ,oa yksd lsodksa }kjk dkfjr tfVy ,oa xaHkhj ekeyksa dh tkWp

,oa foospuk dj ldsA bl i`"Bhkwfe esa 'kklu }kjk ,d loZlEiUu ,oa

mPp dk;Z{kerk okys fo’ks"k vuqla/kku ny (Special Investigation

Team) laf{kIr uke ,l0vkbZ0Vh0] dh Lfkkiuk dk fu.kZ; fy;k x;k gSA

2& ,l0vkbZ0Vh0 dk dk;Z{ks=%& x`g foHkkx }kjk lanfHkZr ekeyksa dh

tkWp ,oa foospuk ds fy, ,l0vkbZ0Vh0 dk xBu ,d Lora= tkWp ,oa

foospuk ,tsUlh ds :i esa fd;k tk jgk gSA ;gkW tkWp ls vfHkizk;

izkjfEHkd tkWp ls gSA ,l0vkbZ0Vh0 dh tkWpsa lanfHkZr djus dk vf/kdkj

x`g foHkkx dks gksxk vkSj xg̀ foHkkx Lor% vFkok vU; foHkkxksa ds

iz’kklfud foHkkxk/;{kksa }kjk lanfHkZr izdj.kksa esa xq.k&nks"k ds vk/kkj ij

rFkk izdj.k dh xaHkhjrk dks n`f"Vxr j[krs gq, tkWp@foospuk ds izdj.k

,l0vkbZ0Vh0 dks lanfHkZr djsxkA

2-1 ,l0vkbZ0Vh0 dks dsoy ,sls izdj.k lanfHkZr fd;s tk;saxsa ftuesa

jkT; ljdkj ,oa jkT; ljdkj ds v/khu dk;Z dj jgs fofHkUu

foHkkx@laxBu@laLFkkvksa@fuxeksa@vf/kdj.kksa vkfn esa yksd lsodksa }kjk

vFkok yksd lsodksa }kjk vU; O;fDr;ksa ds lkFk lkaB&xkaB dj jkT;

ljdkj@jkT; ljdkj ds v/khu fofHkUu

foHkkx@laxBuksa@laLFkkvksa@fuxeksa@vf/kdj.kksa vkfn dks xaHkhj

jktLo@foRrh; gkfu igqWpk;h x;h gksA blds vfrfjDr yksd&O;oLFkk

dks xaHkhj {kfr igqWpkus okys izdj.kksa esa x`g foHkkx }kjk viokn Lo:i

ekeys ,l0vkbZ0Vh0 dks lanfHkZr fd;s tk ldsaxsaA

2-2 ,l0vkbZ0Vh0 dk dk;Z u dsoy foospuk djuk cfYd

foospuksijkUr U;k;ky; esa vfHk;kstu dk;Z viuh ns[k&js[k esa djuk

rFkk tgkW foHkkxh; dk;Zokgh dh vuqla’kk dh tkrh gS ogkW ij foHkkxh;

dk;Zokgh esa lacaf/kr foHkkx ls vuqJo.k djuk Hkh gksxkA Li"V fd;k

tkrk gS fd ,l0vkbZ0Vh0 }kjk izkjfEHkd tkWp ds i'pkr~ yksd lsodksa ds

fo:) foHkkxh; dk;Zokgh dh [email protected] fd;k tk ldsxkA

,l0vkbZ0Vh0 }kjk foospuksijkUr Hkkjrh; n.M izfØ;k lafgrk dh

/kkjk&173 ds rgr U;k;ky; esa fjiksVZ is’k djus ds vfrfjDr yksd

lsodksa ds fo:) foHkkxh; dk;Zokgh dh [email protected] Hkh fd;k tk

ldsxkA

2-3 pwWfd ,l0vkbZ0Vh0 }kjk ,sls ekeyksa esa foospuk dh tk;sxh ftlesa

fyIr O;fDr vljnkj gksaxs vkSj dkuwu dh isaphnxh dk ykHk mBkdj

vius vkidks U;k;ky; ds ek/;e ls cpkuk pkgsaxsa] vr% mi;qDr izdj.kksa

esa ,l0vkbZ0Vh0 }kjk fo’ks"k yksd vfHk;kstd (Special Public

Prosecutor) dh fu;qfDr ds fy, x`g foHkkx ls vuqjks/k djus dh

Lora=rk gksxhA

2-4 x`g foHkkx ds izeq[k lfpo dh v/;{krk esa ,d lfefr xfBr dh

tk;sxh ftlesa iqfyl egkfuns’kd] m0iz0 rFkk lacaf/kr foHkkx] tgkW dh

izkjfEHkd tkWp@foospuk dh x;h gS] ds foHkkxk/;{k ¼;fn foHkkxk/;{k ds

fyIr gksus dh vk’kadk gks rks iz’kklfud foHkkxk/;{k½ gksaxsA ,l0vkbZ0Vh0

}kjk izkjfEHkd tkWp vFkok foospuk ds mijkUr vk[;k@fu"d"kZ x̀g

foHkkx dks izLrqr fd;k tk;sxkA ;g lfefr ,l0vkbZ0Vh0 dh vk[;k ij

fopkjksijkUr izkFkfedh ntZ djus] foospuksijkUr U;k;ky; esa vkjksi&i=

nkf[ky djus] nks"kh ljdkjh lsod ds fo:) foHkkxh; dk;Zokgh djus &

y?kq@nh?kZ n.M dh laLrqfr vkfn dj ldsxhA fdlh izkbosV O;fDr ds

fo:) dk;Zokgh lafLFkr gksus dh n’kk esa lfefr }kjk fu.kZ; fy;k

tk;sxkA

3- ,l0vkbZ0Vh0 dk iz’kklfud <kWpk%& ,l0vkbZ0Vh0 dk eq[;ky;

y[kuÅ esa gksxk ,oa vij iqfyl egkfuns’kd Lrj ds vf/kdkjh mlds

izeq[k gksaxsaA muds v/khu ,d vkbZ0th0@Mh0vkbZ0th0 ,oa dk;Z dh

vf/kdrk dks ns[krs gq, 02 ;k mlls vf/kd iqfyl v/kh{kd fu;qDr fd;s

tk;saxsA iqfyl egkfuns’kd] m0iz0 }kjk miyC/k dk;Zcy esa ls

,l0vkbZ0Vh0 esa 04 iqfyl mik/kh{kd ,oa 10 fujh{kd rFkk 06 mi

fujh{kd ,oa 30 dkaLVsfcy fu;qDr fd;s tk;saxsaA blds vfrfjDr 06

vk’kqfyfid] 02 mi fujh{kd¼,e½ rFkk 04 lgk;d mi fujh{kd¼,e½ dh

fu;qfDr dh tk;sxhA prqFkZ Js.kh ds 10 in Hkh miyC/k djk;s tk;saxsA

dkykUrj esa mijksDr lHkh inksa ds l`tu dh Lohdf̀r ysdj

fu;qfDr@inksUufr dh O;oLFkk iqfyl eq[;ky; }kjk dh tk;sxhA

,l0vkbZ0Vh0 dks fof/kd jk; nsus ,oa vfHk;kstu gsrq ,d ofj"B

vfHk;kstu vf/kdkjh] ,d vfHk;kstu vf/kdkjh rFkk ,d lgk;d

vfHk;kstu vf/kdkjh dh fu;qfDr x`g foHkkx }kjk dh tk;sxhA

3-1 ,l0vkbZ0Vh0 esa pwWfd fofHkUu foHkkxksa ls lacaf/kr ekeyksa dh

tkWp@foospuk dh tk;sxh] vr% ,l0vkbZ0Vh0 izeq[k dks x`g foHkkx ds

ek/;e ls ,sls rduhdh@fo"k;d~ tkudkjh j[kus okys

vf/kdkjh@deZpkjh dks vius lkFk vko’;drkuqlkj okWfNr vof/k ds

fy, lEc) djus dk vf/kdkj gksxk ,oa ,l0vkbZ0Vh0 }kjk fd;s x;s

bl izdkj ds fuosnu dks lacaf/kr foHkkx ds foHkkxk/;{k@lfpo }kjk

izR;sd n’kk esa Lohdkj djuk gksxkA bl izdkj miyC/k djk;s tkus okys

fo’ks"kK vf/kdkfj;ksa dk ,d iSuy] ftlesa 05 vf/kdkjh gksaxs] foHkkx }kjk

,l0vkbZ0Vh0 izeq[k dks vfoyEc Hkstk tk;sxkA ml iSuy esa ls

vf/kdkfj;ksa@deZpkfj;ksa dks pquus ds fy, ,l0vkbZ0Vh0 izeq[k Lora=

gksaxsA

3-2 lacaf/kr foHkkx ftlds izdj.k dh tkWp vFkok foospuk

,l0vkbZ0Vh0 }kjk dh tk jgh gS og ,l0vkbZ0Vh0 dks vko’;d

vk/kkjHkwr lg;ksx (Logical Support) miyC/k djk;sxkA

3-3 foospuk@tkWp esa vkus okyh tfVyrk dks ns[krs gq,

vko’;drkuqlkj ,l0vkbZ0Vh0 }kjk futh {ks= ls mi;qDr foRrh; iSdst

ds vk/kkj ij pkVZMZ ,dkm.VsUV] dEiuh lsdzsVjh] QkbusfU’k;y ,ukfyLV]

oSY;wolZ (Valuers) ,oa dEI;wVj fo’ks"kKksa ,oa vU; fo’ks"kKksa dh lsok;sa yh

tk ldsaxhA blds fy, mUgsa x`g foHkkx ls vuqeksnu izkIr djuk gksxkA

3-4 ,l0vkbZ0Vh0 izeq[k dks dk;kZy; ds vkUrfjd fu;e ,oa

dk;Ziz.kkyh r; djus ds fy, vf/kdkj izkIr gksxkA ijUrq x̀g foHkkx

}kjk tkWp@foospuk ds fy, fu/kkZfjr le;&lhek dk vknj djuk gksxkA

4- ,l0vkbZ0Vh0 dk fo’ks"kkf/kdkj%& ,l0vkbZ0Vh0 }kjk vius dk;Z ds

nkSjku vko’;drkuqlkj okWfNr vfHkys[k lacaf/kr

foHkkx@laxBu@laLFkk@fuxe@vf/kdj.k vkfn }kjk ;qfDr;qDr

le;&lhek esa miyC/k djk;s tk;saxsA lacaf/kr foHkkxk/;{k ;g lqfuf’pr

djsaxsaA

5- lkt&lTtk%& ,l0vkbZ0Vh0 ds dk;kZy; gsrq mi;qDr LFkku]

okgu ,oa vU; vko’;d midj.kksa dh miyC/krk Hkh lqfuf’pr dh

tk;sxhA bl iz;kstu ij gksus okyk O;; iqfyl vk/kqfudhdj.k ;kstuk ls

ogu fd;k tk;sxkA bl laca/k esa vko’;d vkSipkfjdrkvksa dh iwfrZ djds

/kujkf’k vkcafVr djus dh dk;Zokgh vyx ls dh tk;sxhA

6- ctV%& ,l0vkbZ0Vh0 ds vukorZd O;; o vkorZd O;; dks xg̀

¼iqfyl½ foHkkx dh vuqnku la[;k&26 ds vUrxZr O;ofLFkr /kujkf’k ls

ogu fd;k tk;sxkA iqfyl egkfuns’kd vko’;drkuqlkj bl ny dks

/kukjkf’k voeqDr djsaxsaA

7- fo’ks"k U;k;ky;ksa dk xBu%& ,l0vkbZ0Vh0 }kjk foosfpr fd;s x;s

vkijkf/kd izdj.kksa ds Rofjr fuLrkj.k gsrq Hkz"Vkpkj fuokj.k vf/kfu;e

rFkk Hkkjrh; n.M lafgrk ds v/khu fd;s x;s vijk/kksa dh lquokbZ gsrq

vyx&vyx fo’ks"k U;k;ky;ksa ds l`tu ds lEcU/k esa vyx ls

fof/klEer dk;Zokgh dh tk;sxhA

8- fofo/k%& ,l0vkbZ0Vh0 dk;kZy; dks iqfyl Fkkus ds :i esa

vf/klwfpr djus ds fy, x`g foHkkx ds Lrj ls dk;Zokgh dh tk;sxhA

bl iqfyl Fkkus dk dk;Z{ks= lEiw.kZ mRrj izns’k gksxkA

8-1 ,l0vkbZ0Vh0 ds lHkh fujh{kd ,oa mlls Åij ds vf/kdkfj;ksa dks

Fkkuk izHkkjh ds :i esa vf/klwfpr fd;k tk;sxk ftlls fd os Lora=

jgdj vius v/khu fdlh iqfyl vf/kdkjh@deZpkjh dks fdlh izdj.k

dh foospuk ds laca/k esa tkudkjh vFkok lk{; ,df=r djus gsrq

funsZf’kr dj ldsax saA ,l0vkbZ0Vh0 ds fujh{kdksa dks Hkz"Vkpkj fuokj.k

vf/kfu;e] 1973 ds rgr foospuk dk vf/kdkj nsus gsrq vf/klwpuk x̀g

foHkkx }kjk tkjh dh tk;sxhA

8-2 ,l0vkbZ0Vh0 izeq[k dks foHkkxk/;{k dk Lrj izkIr gksxk ftlds

fy, 'kklu }kjk vf/klwpuk tkjh dh tk;sxhA

8-3 ,l0vkbZ0Vh0 esa dk;Z dj jgs foopdksa dks ewy osru ds 25

izfr’kr rFkk ,l0ih0 ,oa mlds Åij ds vf/kdkfj;ksa dks 15 izfr’kr

fo’ks"k HkRrk ns; gksxkA

Hkonh;]

g-

ts0,u0pSEcj

izeq[k lfpo

la[;k &1351@N%&iq0&3&25ih@2007] rn~fnukWd %&

izfrfyfi fuEufyf[kr dks lwpukFkZ ,oa vko’;d dk;Zokgh gsrq

izsf"kr%&

¼1½ iqfyl egkfuns’kd] vfHk;kstu] y[kuÅA

¼2½ leLr e.Myk;qDr@ftykf/kdkjh@iqfyl egkfujh{kd

tksu@iqfyl miegkfujh{kd] ifj{ks=] mRrj izns’kA

¼3½ leLr ofj"B iqfyl v/kh{kd@iqfyl v/kh{kd] mRrj izns’kA

¼4½ leLr foHkkxk/;{k] mRrj izns’kA

vkKk ls]

g0

¼Mk0 gfjvkse½

fo’ks"k lfpoA

&&&&&&&&&&&&

lhfer izlkj ds fy, apr-jun 07.pdflhfer izlkj ds fy, restricted circulation institute of judicial...

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