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LUCKNOW
Quarterly Digest
EDITOR-IN-CHIEF
Anil Kumar Ojha
Volume: XVIII Issue No.: 3
Director
EDITOR-IN-CHARGE
FINANCIAL ADVISOR
Ram Prakash Pal, Additional Director (Finance)
ASSOCIATE
B.K. Mishra, Research Officer
ASSISTANCE
Waqar Hasan
Girish Kumar Singh
Anoop Kumar
SUBJECT INDEX
(Supreme Court)
Sl. No. Name of Act
1. Administration of Justice
2. Administrative Law
3. Advocate Act
4. Arbitration Act
5. Arbitration and Conciliation Act
6. Arms Act
7. Bail
8. Civil Procedure Code
9. Constitution of India
10. Consumer Protection Act
11. Contempt of Courts Act
12. Criminal Justice System
13. Criminal Procedure Code
14. Criminal Trial
15. DNA Test
16. Estoppel
17. Evidence Act
18. Forest Act
19. General Clauses Act
20. Hindu Law
21. Hindu Marriage Act
22. Hindu Succession Act
23. Indian Contract Act
24. Indian Penal Code
25. Interest Act
26. Interpretation of Statute
27. Juvenile Justice (Care & Protection of Children) Act
28. Land Acquisition Act
29. Limitation Act
30. Mohammedan Law
31. Motor Vehicles Act
32. Muslim Personal Law (Shariat) Application Act
33. Narcotic Drugs and Psychotropic Substance Act
34. Negotiable Instrument Act
35. Practice and Procedure
36. Prevention of Corruption Act
37. Prevention of Money Laundering Act
38. Provincial Small Cause Courts Act
39. Rent Control Act
40. Right to Fair Compensation and Transparency in Land
Acquisition, Rehabilitation and Resettlement Act
41. Right to Information Act
42. Securitization and Reconstruction of Financial Assets and
Enforcement of Security Interest Act
43. Service Law
44. Specific Relief Act
45. Transfer of Property Act
46. U.P. Consolidation of Holdings Act
47. Wakf Act
48. Words and Phrases
***
SUBJECT INDEX
(High Court)
Sl. No. Name of Act
1. Arbitration and Conciliation Act
2. Civil Procedure Code
3. Constitution of India
4. Criminal Procedure Code
5. Criminal Trial
6. Court Fees Act
7. Evidence Act
8. Indian Stamp Act
9. Interpretation of Statutes
10. Land Acquisition Act
11. Motor Vehicles Act
12. Motor Vehicle Rules
13. Muslim Law
14. Provincial Small Cause Courts Act
15. Registration Act
16. SARFAESI Act
17. Service Law
18. U.P. Recruitment of Dependents of Government Servants Dying-
in-Harness Rules
19. Specific Relief Act
20. Statutory Provisions
21. Trust Act
22. U.P. Panchayat Raj (Settlement of Election Disputes) Rules
23. U.P. Revenue Code
24. U.P. Urban Building (Regulation of Letting, Rent and Eviction)
Act
25. U.P. Zamindari Abolition and Land Reforms Act.
26. Wakf Act
27. Words and Phrases
28. Legal Quiz
***
Administration of Justice:
Appellant wasting public time – Liable for exemplary cost – Cost of
Rupees one Lakh imposed.
We are of the view that since the appellant has wasted the public
time, while setting aside the aforesaid orders, she should be burdened with
exemplary costs, which we quantify at Rupees one lakh. The appellant is
directed to pay the cost as ordered by us to an orphanage, namely, Delhi
Council for Child Welfare, located at Qudsia Bagh, Yamuna Marg, Civil
Lines, Delhi 110054, within four weeks from today and produce an
acknowledgement for having paid the amount to the orphanage within one
week thereafter. Smt. P. Chandrakala V. K. Narender 2017 (6)
Supreme 164
Administrative Law:
Judicial propriety – High Court deciding matter for and against dead
persons whose legal representatives not brought on record –
Judgment and order, held nullity.
It is a fundamental principle of law laid down by this Hon‘ble
Court in Kiran Singh V. Chaman Paswan, AIR 1954 SC 340 that a decree
passed by the Court, if it is a nullity, its validity can be questioned in any
proceeding including in execution proceedings whenever such decree is
sought to be enforced by the decree holder. The reason is that the defect of
this nature affects the very authority of the Court in passing such decree
and goes to the root of the case. This principle, in Hon‘ble Court‘s
considered opinion , squarely applies to this case because it is a settled
principle of law that the decree passed by the Court for or against a dead
person is a ―nullity‖. Gurnam Singh (D) Thr. Lrs. V. Gurbachan Kaur
(D) by Lrs. 2017(4) Supreme 549
Advocate Act
Bar Council of India Certificate and place of Practice (Verification),
Rules, 2015- Fake –Lawyers- Process of verification- Steps taken by
the Bar Council of India to cause an enquiry and to find out fake
lawyers out of its members and/or not even a member of the Bar
Councils and/or member of any Bar Association of the Country
Court has been informed by learned senior counsel for the Bar Council of
India as well as the respective State Bar Councils that the process of
verification is not completed yet. In view of that, to do complete justice to
the parties, it would be proper for us to provide a last opportunity for the
same as mentioned below:-
(1) 15 (fifteen) days‘ time be given to cure the defective applications by
the concerned Advocates and to all such advocates to submit their
complete application forms for necessary verification of their degrees if
they have not submitted the same earlier, from the date of publication of
advertisement in two leading newspapers, one in English language and the
other in regional language having wide circulation in the respective
State/Union Territories, for which advertisement shall be published within
7 days from the passing of this order.
(2) 1 (one) month time for verification of applications, without any
charge, by the State Bar Councils, after the expiry of the above 15
(fifteen) days.
(3) The University Authorities shall ensure the verification of degrees
awarded by them, without any charge, within 1 (month) on its
presentation.
(4) The respective State Bar Councils shall publish a Final Electoral Roll
by including the names and particulars of such advocates whose degrees
attached with the application forms have been verified by the concerned
University authorities. The names of all such advocates who have not
removed the defects in the application forms already submitted within the
specified time and also such persons whose degrees on verification have
been found false or fake by the University authorities shall not be included
in the Electoral Rolls.
(5) Bar Council of India to declare the schedule of elections in respective
State Bar Councils to be held after the expiry of 75 (seventy five) days, as
mentioned above, within one week mentioning therein:-
(i) 15 days for nomination.
(ii) 1 week for withdrawal of nomination.
(iii) to upload final candidates‘ list in 1 (one) week.
(iv) to decide the date of election.
Court further make it clear that all the steps be taken by all the parties
concerned in the matter for the purpose of elections in respect of all the
Bar Councils where the term of the existing members have already
expired or to be expired. We further make it clear that although this order
has been passed in favour of the verification only for the purpose of the
election but it would also include for the purpose of the verification of all
other learned lawyers who have already applied within the time stipulated
by this Court. Ajayinder Sangwan and Ors. v. Bar Council of Delhi &
Ors., 2017 (9) SCALE 561
Arbitration Act:
Arbitration – Construction of a contract – Lies within the province of
the arbitral tribunal – More so when based on relevant evidentiary
material
The arbitrator has taken the view that the provision for price escalation
would not bind the claimant beyond the scheduled date of completion.
This view of the arbitrator is based on a construction of the provisions of
the contract, the correspondence between the parties and the conduct of
the Board in allowing the completion of the contract even beyond the
formal extended date of 6 September 1983 up to 31 January 1986. Matters
relating to the construction of a contract lie within the province of the
arbitral tribunal.
Moreover, in the present case the view which has been adopted by the
arbitrator is based on evidentiary material which was relevant to the
decision. Assam State Electricity Board V. Buildworth Pvt. Ltd. 2017
(5) Supreme 405
Arms Act
Ss. 3(1), 21, 21(1); 25(1B(a) and 25(1B) (h) – Applicability of
Sec. 25(1B)(a) and (h) both provide for different conditions for an
offence which is punishable under the provision. The fact that the licence
has been renewed, may be relevant in reference to section 21 (1) read with
Sec. 25(1B) (h) but offence under sec. 3(1) read with Ss. 21 and 25(1B)(a)
independently stands.
We are thus of the view that by mere renewal of the licence of the
appellant, the offence which is alleged on 24.04.2011 cannot be held to be
washed out. Harpreet Singh V. State of Himachal Pradesh 2017 (6)
Supreme 289
BAIL
Bail – When already rejected by the High Court and Supreme Court
– Validity of
As is demonstrable, the learned trial Judge has not been guided by the
established parameters for grant of bail. He has not kept himself alive to
the fact that twice the bail applications had been rejected and the matter
had travelled to this Court. Once this Court has declined to enlarge the
appellants on bail, endeavours to project same factual score should not
have been allowed. It is absolute impropriety and that impropriety calls
for axing of the order. Virupakshappa Gouda and another vs. State of
Karnataka and another, (2017) 2 SCC (Cri) 542 ; (2017) 5 SCC 406.
Sec. 100 –Trial court and first appellate court returning concurrent
findings of fact – High Court in second appeal reversing the same –
No perversity in the findings of first appellate– High Court order set
aside.
First appellate court is the last court on facts. The Hon‘ble Court
finds no perversity in the findings of the first appellate court. The said
court has found on admission that there was landlord-tenant relationship.
After entering such a finding only, the eviction was ordered on the ground
of arrears of rent. There is no dispute on these facts. On the right to sell
the property by the first respondent‘s father, the findings are concurrent.
In that view of the matter, we allow the appeal, set aside the impugned
judgment of the High Court and restore that of the first appellate court.
Satish Chand (D) by LRs. V. Kailash Chand 2017 (5) Supreme 206
Sec. 151 & O. 21, R. 32- Application under S. 151 CPC for grant of
police protection-Filed in execution Court for execution of decree
passed in suit for permanent injunction- Execution Court granted it-
High Court interfered with order holding that the application should
have been filed only under O. 21, R. 32 CPC-An exact provision not
invoked, that by itself shall not be a reason for rejecting the
application-Rejection improper, order passed by Execution Court
restored.
But merely because an application for police protection was filed only
under Section 151 CPC invoking the inherent jurisdiction, it cannot be a
reason for the High Court to reject it and hold that the application should
have been filed under Order XXI, Rule 32 CPC. The crucial question is
whether the Execution Court has jurisdiction. That is not disputed. The
only thing is that an exact provision was not invoked. That by itself shall
not be a reason for rejecting the application (See Municipal Corporation of
the City of Ahmedabad v. Ben Hiraben Manila,(1993) 2 SCC 422 and T.
Nagappa v. Y.R. Muralidhar, (2008) 5 SCC 633). In case, the Execution
Court has the jurisdiction and has otherwise followed the procedure under
the Rules, the action has to be upheld. One relevant question is also
whether the judgment debtor has suffered any injury or whether any
prejudice has been caused to him. If the answer is in the negative, as in the
instant case, the execution must proceed. The impugned judgment is
hence set aside, the appeal is allowed and the order passed by the
Execution Court is restored.
There shall beno orders as to costs. Raja Venkateswarlu and another V.
Mada Venkata Subbaiah and another, 2017 (3) ARC 7
O. 9 R., 13; O. 43 R. 1 (c) & 1 (d); Section 141- Limitation Act, 1963-
Section 5 –Setting aside decree ex-parte against defendants- Appeal
from orders - Maintainability
High Court held that appeal filed by appellant before the District Judge
against the order of trial Court dated 23.12.2005 was not maintainable-
High Court had also observed that restoration application filed by
appellant was also barred by time- Whether appeal filed by appellants
under Order XLIII Rule 1, CPC was maintainable- Held ,Yes . Jaswant
Singh & Ors.V. Parkash Kaur & Anr. 2017 (9) SCALE 123
Constitution of India:
Arts. 19 & 21- Right of privacy- Whether there is any fundamental
right of privacy under the Constitution of India- This Court places
these matters before a Nine Judge Constitution Bench
Court has observed it has become essential for us to determine whether
there is any fundamental right of privacy under the India Constitution. The
determination of this question would essentially entail whether decision
recorded by this Court in M.P. Sharma and Ors. v. Satish Chandra,
District Magistrate, Delhi and Ors.-1950 SCR 1077 by an eight- Judge
Constitution Bench, and also in Kharak Singh v. the State of U.P. and Ors.
1962 (1)SCR 332 by a six- Judge Constitution Bench, that there is no such
fundamental right is the correct expression of the constitutional position.
Before dealing with the matter any further, court is of the view that the
issue noticed hereinabove deserves to be placed before the nine Judges
Constitution Bench. List these matters before the Nine- Judge Constitution
bench on 19.07.2017. Justice K.S. Puttaswamy (Retd.) and Anr. V.
Union of India and Ors., 2017 (8) SCALE 38
Art. 30(1) – Minority institutions – Appointment of headmaster or
principal of choice – Right is absolute
As far as the selection and appointment of the Headmaster or the
Principal, as the case may be, is concerned, this Court in Secy. Malankara
Syrian Catholic College Vs. T. Jose and Others , reported in (2007) 1 SCC
386 , after referring to all the celebrated cases on minority rights, viz. T
M A Pai Foundation v. State of Karnataka [(2002) 8 SCC 481],
P.A. Inamdar vs. State of Maharashtra [(2005) 6 SCC 537], State of
Kerala v. Very Rev. Mother Provincial [(1970) 2 SCC 417], The
Ahmedabad St. Xavier‘s College Society v. State of Gujarat [(1974) 1
SCC 717], Frank Anthony Public School Employees‘ Association v
Union of India [(1986) 4 SCC 707], Rev.Sidhajbhai v. State of Bombay
[(1963) 3 SCR 837], D.A.V. College v. State of Punjab [(1971) 2 SCC
269], All Saints High School v. Government of A.P. [(1980) 2 SCC 478],
St. Stephen‘s College v. University of Delhi [(1992) 1 SCC 558], N.
Ammad v. Manager, Emjay High School [(1998) 6 SCC 674], Board of
Secondary Education & Teachers Training v. Joint Director of Public
Instructions [(1998) 8 SCC 555], has held in Paras 27 to 29 that the
Management of a minority aided educational institution is free to appoint
the Headmaster or the Principal, as the case may be, of its own choice and
has no obligation to appoint the available senior qualified member from
the same community. Manager, Corporate Educational Agency V.
James Mathew 2017 (6) Supreme 306
Sec. 319 – Powers of Court to proceed under Sec. 319 even against
persons not arrayed as accused – Cannot be disputed
Powers of the Court to proceed under Section 319 Cr.P.C. even
against those persons who are not arrayed as accused, cannot be
disputed. This provision is meant to achieve the objective that real culprit
should not get away unpunished. A Constitution Bench of this Hon‘ble
Court in Hardeep Singh v. State of Punjab & Ors., (2014) 3 SCC 92:
[2014]1 Supreme 132, explained the aforesaid purpose behind this
provision in the following manner:
―8. The constitutional mandate under Articles 20 and 21 of the
Constitution of India provides a protective umbrella for the smooth
administration of justice making adequate provisions to ensure a fair and
efficacious trial so that the accused does not get prejudiced after the law
has been put into motion to try him for the offence but at the same time
also gives equal protection to victims and to society at large to ensure
that the guilty does not get away from the clutches of law. For the
empowerment of the courts to ensure that the criminal administration
of justice works properly, the law was appropriately codified and
modified by the legislature under Cr.P.C. indicating as to how the
courts should proceed in order to ultimately find out the truth so that an
innocent does not get punished but at the same time, the guilty are
brought to book under the law. It is these ideals as enshrined under the
Constitution and our laws that have led to several decisions,
whereby innovating methods and progressive tools have been forged to
find out the real truth and to ensure that the guilty does not go
unpunished.
12. Section 319 CrPC springs out of the doctrine judex damnatur cum
nocens absolvitur (Judge is condemned when guilty is acquitted) and this
doctrine must be used as a beacon light while explaining the ambit and
the spirit underlying the enactment of Sec. 319 CrPC.
13. It is the duty of the court to do justice by punishing the real culprit.
Where the investigating agency for any reason does not array one of the
real culprits as an accused, the court is not powerless in calling the said
accused to face trial. The question remains under what
circumstances and at what stage should the court exercise its power as
contemplated in Section 319 Cr.P.C.?
19. The court is the sole repository of justice and a duty is cast upon it to
uphold the rule of law and, therefore, it will be inappropriate to deny the
existence of such powers with the courts in our criminal justice system
where it is not uncommon that the real accused, at times, get away by
manipulating the investigating and/or the prosecuting agency. The desire
to avoid trial is so strong that an accused makes efforts at times to get
himself absolved even at the stage of investigation or inquiry even
though he may be connected with the commission of the offence.‖
In Hardeep Singh‘s case, the Constitution Bench has also settled the
controversy on the issue as to whether the word ‗evidence‘ used in
Section 319(1) Cr.P.C. has been used in a comprehensive sense and
indicates the evidence collected during investigation or the word
‗evidence‘ is limited to the evidence recorded during trial. It is held
that it is that material, after cognizance is taken by the Court, that is
available to it while making an inquiry into or trying an offence, which
the court can utilise or take into consideration for supporting reasons to
summon any person on the basis of evidence adduced before the
Court. The word ‗evidence‘ has to be understood in its wider sense, both
at the stage of trial and even at the stage of inquiry. It means that the
power to proceed against any person after summoning him can be
exercised on the basis of any such material as brought forth before it. At
the same time, this Court cautioned that the duty and obligation of the
Court becomes more onerous to invoke such powers consciously on such
material after evidence has been led during trial. The Court also clarified
that ‗evidence‘ under Section 319 Cr.P.C. could even be examination-
in-chief and the Court is not required to wait till such evidence is tested
on cross-examination, as it is the satisfaction of the Court which can be
gathered from the reasons recorded by the Court in respect of complicity
of some other person(s) not facing trial in the offence. Brijendra Singh
V. State of Rajasthan 2017 (4) Supreme 558
Ss. 438 & 439 –Maharashtra Control of Organized Crime Act, 1999 –
Sections 3(1) (i), 3(1) (ii), 3 (2), 3(3) & 3(5) –IPC – Sections 302, 307 ,
326, 427, 153-A & 120 B – Explosive substances Act -Sections 3,4,5,
&6 – Arms Act, 1959 – Sections 3, 5, & 25- Unlawful Activities
(Prevention) Act , 1967- Sections 15, 16, 17, 18, 20 & 23- Bail
application –Factors to be considered by the Court- Successive
applications for grant to bail- Court has duty to record the fresh
grounds which persuade it to take a view different from the one taken
in the earlier applications
In our considered opinion, there are material contradictions in the charge
sheets filed by the ATS Mumbai and the NIA which are required to be
tested at the time of trial and this Court cannot pick or choose one version
over the other. Liberty of a citizen is undoubtedly important but this is to
balance with the security of the community. A balance is required to be
maintained between the personal liberty of the accused and the
investigational rights of the agency. It must result in minimum
interference with the personal liberty of the accused and the right of the
agency to investigate the case.
The law in regard to grant or refusal of bail is very well settled. The court
granting bail should exercise its discretion in a judicious manner and not
as a matter of course. Though at the stage of granting bail a detailed
examination of evidence and elaborate documentation of the merit of the
case need not be undertaken, there is a need to indicate in such orders
reasons for prima facie concluding why bail was being granted
particularly where the accused is charged of having committed a serious
offence. Any order devoid of such reasons would suffer from non-
application of mind. It is also necessary for the court granting bail to
consider, among other circumstances, the following factors also before
granting bail; they are:
(a) The nature of accusation and the severity of punishment in case of
conviction and the nature of supporting evidence.
(b) Reasonable apprehension of tampering with the witness or
apprehension of threat to the complainant. (c) Prima facie satisfaction of
the court in support of the charge.
Before concluding, we must note that though an accused has a right to
make successive applications for grant of bail, the court entertaining such
subsequent bail applications has a duty to consider the reasons and
grounds on which the earlier bail applications were rejected. In such cases,
the court also has a duty to record the fresh grounds which persuade it to
take a view different from the one taken in the earlier applications.
It is further made clear that the grant of bail to the appellant herein
shall be no consideration for grant of bail to other accused persons in the
case and the prayer for bail by other accused persons (not before us) shall
be considered on its own merits. We also make it clear that the Special
Court shall decide the bail applications, if filed by the other accused
persons, uninfluenced by any observation made by this Court. Further,
any observations made by us in this order shall not come in the way of
deciding the trial on merits. Lt. Col. Prasad Shrikant Purohit V. State
of Maharashtra, 2017 (9) SCALE 442
Criminal Trial :
Appreciation of evidence
In Court‘s opinion, merely for said lapse of not producing the envelope on
the part of the investigating agency is not sufficient in the present case to
create reasonable doubt in the prosecution story. In our opinion, it is
almost impossible to come across a single case where the investigation
was completely flawless or absolutely foolproof. The function of the
criminal court is to find out the truth and it is not the correct approach to
simply pick up the minor lapses of the investigation and acquit the
accused, particularly when the ring of truth is undisturbed. Suresh
Chandra Jana V. The State of West Bengal 2017 (6) Supreme 35
Time of death – State of Food in the stomach – Not the only factor
The presence or absence of food at the time of post-mortem in relation to
the time of death is based on various factors and circumstances such as the
type and nature of the food consumed, the time of taking the meal, the
age of the person concerned and power and capacity of the person to
digest the food. ….. Judging the time of death from the contents of the
stomach, may not always be the determinative test. It will require due
corroboration from other evidence. If the prosecution is able to prove its
case beyond reasonable doubt and cumulatively, the evidence of the
prosecution, including the time of death, is proved beyond reasonable
doubt and the same points towards the guilt of the accused, then it may
not be appropriate for the court to wholly reject the case of the prosecution
and to determine the time of death with reference to the stomach contents
of the deceased. Even in Modi‘s Jurisprudence, it has been recorded as
under:
―... The state of the contents of the stomach found at the time of medical
examination is not a safe guide for determining the time of the occurrence
because that would be a matter of speculation, in the absence of reliable
evidence on the question as to when the deceased had his last meal and
what that meal consisted of.‖
Where there is positive direct evidence about the time of occurrence, it is
not open to the court to speculate about the time of occurrence by the
presence of faecal matter in the intestine. The question of time of death of
the victim should not be decided only by taking into consideration the
state of food in the stomach. Sanjay Khanderao Wadane V. State of
Maharashtra 2017 (5) Supreme 282
Odontology report
In today‘s world, Odontology is a branch of forensic science in
which dental knowledge is applied to assist the criminal justice delivery
system. In a case where the victim's body contained various white bite
marks, Bite mark analysis play an important role in the criminal justice
system. Advanced development of technology such as laser scanning,
scanning electron microscopy or cone beam computed tomography in
forensic odontology is utilized to identify more details in bite marks and
in the individual teeth of the bite. Unlike fingerprints and DNA, bite
marks lack the specificity and durability as the human teeth may change
over time. However, bite mark evidence has other advantages in the
criminal justice system that links a specific individual to the crime or
victim. For a bite mark analysis, it must contain abundant information and
the tooth that made the mark must be quite distinctive.
Bite marks in skin are photographed in cases where the suspect is
apprehended. A thorough dental combination is administered after dental
examination of the suspect. Final comparison of the details of the original
mark with the dentation of the suspect is done by experts.
The bite marks generally include only a limited number of teeth.
The teeth and oral structure of the accused are examined by experts and,
thereafter, bite marks are compared and reports are submitted. Forensic
Odontology is a science and the most common application of Forensic
Odontology is for the purpose of identification of persons from their tooth
structure.
Forensic Odontology has established itself as an important and
indispensable science in medico-legal matters and expert evidence
through various reports which have been utilized by courts in the
administration of justice. In the case at hand, the report is wholly credible
because of matching of bite marks with the tooth structure of the accused
persons and there is no reason to view the same with any suspicion.
Learned counsel for the appellants would only contend that the whole
thing has been stage- managed. We are not impressed by the said
submission, for the evidence brought on record cogently establish the
injuries sustained by the prosecutrix and there is consistency between the
injuries and the report. We are not inclined to accept the hypothesis that
bite marks have been managed. Mukesh and another V. State (NCT of
Delhi) and others, (2017) 2 SCC (Cri) 673 ; (2017) 7 SCC 1
DNA Test
Doctor has clearly testified in his cross- examination that all the
experiments conducted by him confirmed to the guidelines and
methodology documented in the Working Procedure Manuals of the
laboratory which have been validated and recommended for use in the
laboratory. He further added that once a DNA profile is generated, its
accuracy is 100%. The trial court and the High Court have consistently
noted that the counsel for the defence did not raise any substantial ground
to challenge the DNA report during the cross-examination of doctor. In
such circumstances, there is no reason to declare the DNA report as
inaccurate, especially when it clearly links the accused persons with the
incident.
The argument that the DNA test cannot be treated to be accurate,
for there was blood transfusion as the prosecutrix required blood and
when there is mixing of blood, the DNA profiling is likely to differ, not
sustained. It is seemly to note, nothing had been put to the expert in his
cross-examination in this regard. As the authorities relating to DNA
would show, if the quality control is maintained, it is treated to be quite
accurate and as the same has been established. Mukesh and another V.
State (NCT of Delhi) and others, (2017) 2 SCC (Cri) 673 ; (2017) 7
SCC 1
Estoppel :
Substantive offence of defalcation – Conspiracy an allied
offence – Parties are different – Issue of estoppels does not arise.
It is pertinent to mention here that this Court in this very case has
negatived the contention of joint trials and amalgamation of trials in the
aforesaid decisions. When parties are different, issue of estoppels would
not arise. The substantive offence is that of defalcation. Conspiracy was
an allied offence to the substantive offence. State of Jharkhand through
S.P., C.B.I. V. Lalu Prasad @ Lalu Prasad Yadav 2017 (4) Supreme
321
Evidence Act:
Sec. 3 – Rape and murder – Question of imposing of death sentence –
Materials on recordestablishing possibility of accused being reformed
and rehabilitated – Considering aggravating circumstances namely
extreme depravity and barbaric manner in which crimes was
committed and helplessness of four years of girl – Outweigh
mitigating circumstances brought on record
The material placed on record shows that after the Judgment under
review, the petitioner has completed Bachelors Preparatory Programme
offered by the Indira Gandhi National Open University enabling him to
prepare for Bachelor level study and that he has also completed the
Gandhi Vichar Pariksha and had participated in drawing competition
organized sometime in January 2016. It is asserted that the jail record of
the petitioner is without any blemish. The matter is not contested as
regards Conditions 1, 2, 5, 6 and 7 as stated in paragraph 206 of the
decision in Bachan Singh (supra) but what is now being projected is that
there is a possibility of the accused being reformed and rehabilitated.
Though these attempts on part of the petitioner are after the Judgment
under review, we have considered the material in that behalf to see if
those circumstances warrant a different view. We have given anxious
consideration to the material on record but find that the aggravating
circumstances namely the extreme depravity and the barbaric manner in
which the crime was committed and the fact that the victim was a helpless
girl of four years clearly outweigh the mitigating circumstances now
brought on record. Having taken an overall view of the matter, in our
considered view, no case is made out to take a different view in the
matter. We, therefore, affirm the view taken in the Judgment under review
and dismiss the present Review Petitions. Vasanta Sampat Dupare V.
State of Maharashtra, 2017 Cr.L.J. 3204
Forest Act:
Hindu Law
Partition Suit- Burden of proof- Legal presumption that every Hindu
family is joint in food, worship and estate and in absence of any proof
of division, such legal presumption continues to operate in the family-
Burden lies upon the member who, after admitting the existence of
jointness in that family properties, asserts his claim that some
properties out of entire lot of ancestral properties are his self-
acquired property
Here is a case where two Courts below, on appreciating the entire
evidence, have come to a conclusion that the plaintiffs failed to prove their
case in relation to both the suit properties. The concurrent findings of facts
recorded by the two 6 Courts, which do not involve any question of law
much less substantial question of law, are binding on this Court.
It is more so when these findings are neither against the pleadings nor
against the evidence and nor contrary to any provision of law. They are
also not perverse to the extent that no such findings could ever be
recorded by any judicial person. In other words, unless the findings of
facts, though concurrent, are found to be extremely perverse so as to affect
the judicial conscious of a judge, they would be binding on the Appellate
Court.
It is a settled principle of law that the initial burden is always on the
plaintiff to prove his case by proper pleading and adequate evidence (oral
and documentary) in support thereof. The plaintiffs in this case could not
prove with any documentary evidence that the suit properties described in
Schedule ‗B‘ and ‗C‘ were their self-acquired properties and that the
partition did not take place 7 in respect of Schedule ‗D‘ properties and it
continued to remain ancestral in the hands of family members. On the
other hand, the defendants were able to prove that the partition took place
and was acted upon.
In order to prove that the suit properties described in Schedule ‗B‘ and
‗C‘ were their self-acquired properties, the plaintiffs could have adduced
the best evidence in the form of a sale-deed showing their names as
purchasers of the said properties and also could have adduced evidence of
payment of sale consideration made by them to the vendee. It was,
however, not done.
Not only that, the plaintiffs also failed to adduce any other kind of
documentary evidence to prove their self-acquisition of the Schedule ‗B‘
and ‗C‘ properties nor they were able to prove the source of its
acquisition.
It is a settled principle of Hindu law that there lies a legal
presumption that every Hindu family is 8 joint in food, worship and estate
and in the absence of any proof of division, such legal presumption
continues to operate in the family. The burden, therefore, lies upon the
member who after admitting the existence of jointness in the family
properties asserts his claim that some properties out of entire lot of
ancestral properties are his self-acquired property.
In our considered opinion, the legal presumption of the suit properties
comprising in Schedule ‗B‘ and ‗C‘ to be also the part and parcel of the
ancestral one (Schedule ‗D‘) could easily be drawn for want of any
evidence of such properties being self-acquired properties of the plaintiffs.
It was also for the reason that the plaintiffs themselves had based their
case by admitting the existence of joint family nucleolus in respect of 9
schedule ‗D‘ properties and had sought partition by demanding 4/9th
share.
In our considered opinion, it was, therefore, obligatory upon the
plaintiffs to have proved that despite existence of jointness in the family,
properties described in Schedule ‗B‘ and ‗C‘ was not part of ancestral
properties but were their self-acquired properties. As held above, the
plaintiffs failed to prove this material fact for want of any evidence.
Court has, therefore, no hesitation in upholding the concurrent findings of
the two Courts, which in our opinion, are based on proper appreciation of
oral evidence. Adiveppa & Ors. V. Bhimappa & Anr. 2017 (11)
SCALE 156
Interest Act:
Sec. 3(1)(b) – Interest on damages – Power to grant - Arbitrator
empowered to grant interest on damages from the date mentioned in
this regard in a written notice claiming such interest.
Learned counsel appearing on behalf of the Board, however, submitted
that a claim for damages gets quantified upon an adjudication by the
arbitrator. Hence, it was submitted that no interest could be awarded prior
to the date of the award. Even this aspect of the matter is, in our view, no
longer res integra. The arbitrator has power to grant interest on damages
under Section 3(1)(b) of the Interest Act, 1978, from the date mentioned
in this regard in a written notice claiming such interest. The position
which prevailed prior to the Interest Act, 1978 (to the effect that interest
on damages would be payable only after ascertainment of damages) has
undergone a change after the enactment of the Act. Interest on damages
could be claimed from the date of the written notice as contemplated in
the law. This aspect of the matter has been set at rest in a decision of this
Court in State of Rajasthan Vs. Ferro Concrete Construction Pvt. Ltd.
(2009) 12 SCC 1.Assam State Electricity Board V. Buildworth Pvt.
Ltd. 2017 (5) Supreme 405
Interpretation of Statute:
Rule of - Broad and purposeful interpretation to be given to
provision of S. 2(14) of JJ Act
Definition of a ―child in need of care and protection‖ given in
Section 2(14) of the JJ Act should be given a broad and purposeful
interpretation. It ought not to be treated as exhaustive but illustrative and
furthering requirements of social justice. Re : Exploitation of Children
in Orphanages in the State of Tamil Nadu V. Union of India, AIR
2017 SC 2546
External aid—Use of
External aids of interpretation are to be used only when language of
legislation is ambiguous and admits of two or more meanings. When
language clear or ambiguity can be resolved under more common rules of
statutory interpretation, court would be reluctant to look at external aids of
statutory interpretation. Rakesh Kumar Paul V. State of Assam, AIR
2017 SC 3948
Sec. 30 – Claim for refund of earnest money – Civil suits already filed
– Same cannot be agitated before reference Court under Sec. 30
Once remedy in the form of civil suits has been resorted to, in our
considered opinion, it was not at all proper exercise of power to invoke
provisions under Section 30 of the act with regard to appointment of the
compensation by directing refund of earnest money. It is not mandatory to
make a reference to the civil court under Sec. 30 and adjudication of
dispute in an appropriate case can be ordered by way of the civil suit. In
the instant case civil suits had already been preferred by respondent no. 1.
It was not appropriate to decide same dispute under Sec. 30. Ramesh
Chand V. M/s Ranmayt developers Pvt. Ltd. 2017 (4) Supreme 588
Sec. 54 r/w Sec. 5, Limitation Act, 1963 – Appellant filing appeal after
a delay of 3671 days – High Court in a similar case condoning delay of
3386 days on the condition that interest will not be payable for period
of delay – Held, such benefit cannot be denied to the appellants.
When the concerned court has exercised its discretion either
condoning or declining to condone the delay, normally the superior court
will not interfere in exercise of such discretion. The true guide is whether
the litigant has acted with due diligence. Since the appellants/ claimants
are the agriculturists whose lands were acquired and when similar situated
agriculturists were given a higher rate of compensation, there is no reason
to decline the same to the appellants. Merely on the ground of delay such
benefit cannot be denied to the appellants. The interest of justice would be
ser4ved by declining the interest on the enhanced compensation and also
on the solatium and other statutory benefits for the period of delay. K.
Subbarayudu V. Special Deputy Collector (Land Acquisition) 2017
(5) Supreme 572
Limitation Act:
Art. 65, Explanation (b) – Applicable only in the case where property
is not claimed through the female but independently of woman who
has died and was absolute owner.
The suit preferred by the plaintiffs in the year 1979 beyond a
period of 12 years, was hopelessly barred by limitation. We are unable to
accept the submission as Explanation (b) to Article 65 of the Act is
applicable only in the case where property is not claimed through the
female but independently of woman who has died. The word ―entitled‖
contained in Explanation (b) to Article 65 clearly means a person is
entitled independently of the right of the Hindu or Mohammedan female.
In case she is absolute owner Article 65 (b) will have no application. In
other words, it is necessary to trace the right to someone else and not to
the Hindu or Mohammedan female, as the case may be. In the instant
case, Shakuntalabai, daughter of Shankara Rao became absolute owner of
the property on 6.2.1958 and on her death on 1.10.1962, the right accrued
to Anandibai on the basis of inheritance made from Shakuntalabai who
was the owner of the ½ share in question. When the property is claimed
from a woman, Hindu or Mohammedan, who was the full owner, it could
not be said that Anandibai or the plaintiffs became entitled to the property
independently of the rights of female i.e. Shakuntalabai. Thus the suit
filed by such heir of female for separate possession / partition would not
be governed by Explanation (b) to Article 65. In such a case limitation
would not commence as per Explanation (b) to Article 65 on death of
female Hindu. However, the starting point of limitation for computation of
12 years would be the date of start of adverse possession otherwise.
Bapusaheb Chimasaheb Naik Nimbalkar (Dead) through LRs V.
Mahesh Vijaysinha Rajebhosale, 2017 (4) Supreme 593
Arts. 82 & 113- Fatal Accidents Act, 1855- Section 1A- Constitution –
Article 142- Suit for compensation –Limitation period of two years
for filing a suit or claim under the Act – Consideration of
Part VII of the Schedule deals with the "suits relating to tort".
Therefore, when a suit for compensation is filed under the Fatal Accidents
Act, 1855, the same has to be filed within the period of two years as
prescribed under Article 82 of the Limitation Act, 1963. In the instant
case, the action for damages is brought under Section 1A of the Fatal
Accidents Act, 1855.
However on a query as to whether there is a scheme under the first
respondent for providing compensation to the victims, the learned
standing Counsel has informed us that there is a scheme under the Rules
now applicable wherein the legal heirs of the deceased person are entitled
to a one-time compensation of Rs.5 lakhs. The accident is of the year
2008. Therefore, we are of the view that it is a fit case to invoke our
jurisdiction under Article 142 of the Constitution of India and grant Rs. 7
lakhs as compensation. The first respondent shall pay this amount to the
first appellant within two months from today otherwise the appellants will
be entitled to interest of 12 per cent per annum from the date of the
accident and the officers responsible for the delay shall be personally
liable for the same. Damini and Another v. Managing Director,
Jodhpur Vidyut Vitran Nigam Limited and another, 2017 (11)
SCALE 450
Mohammedan Law:
Divorce – Triple Talaq –Constitutionality and legal sanctity – This
form of Talaq is manifestly arbitrary in the sense that marital tie can
be broken capriciously and whimsically by a Muslim man without
any attempt at reconciliation so as to save it – This form of Talaq
must be held to be violative of fundamental right contained under
Art. 14 of Constitution of India.
Advocate, appeared on behalf of respondent no.11 (in Writ Petition (C)
No.118 of 2016) - Dr. Noorjehan Safia Niaz, who was impleaded as such,
by an order dated 29.6.2016. It was submitted by learned counsel, that
‗talaq-e-biddat‘ was a mode of divorce that operated instantaneously. It
was contended, that the practice of ‗talaq-e- biddat‘, was absolutely
invalid even in terms of Muslim ‗personal law‘ – ‗Shariat‘. It was
submitted, that it was not required of this Court to strike down the practice
of ‗talaq-e-biddat‘, it was submitted, that it would suffice if this Court
merely upholds the order passed by the Delhi High Court in the Masroor
Ahmed case, by giving a meaningful interpretation to ‗talaq-e-biddat‘,
which would be in consonance with the verses of the Quran and the
relevant ‗hadiths‘.
It was also asserted by learned counsel, that Islam from its very inception
recognized rights of women, which were not available to women of other
communities. It was pointed out, that the right of divorce was conferred
on Muslim women, far before this right was conferred on women
belonging to other communities. It was asserted, that even in the 7th
century, Islam granted women the right of divorce and remarriage. The
aforesaid legal right, according to learned counsel, was recognized by the
British, when it promulgated the Shariat Act in 1937. It was submitted,
that through the above legislation all customs and usages contrary to the
Muslim ‗personal law‘ – ‗Shariat‘, were unequivocally annulled. It was
therefore contended, that while evaluating the validity of ‗talaq-e-biddat‘,
this Court should be conscious of the fact, that the Muslim ‗personal law‘
– ‗Shariat‘, was a forward looking code of conduct, regulating various
features in the lives of those who professed the Muslim religion. Shayara
Bano V. Union of India 2017 (5) Supreme 577
Sec. 166- Raising of the claims before the Motor Accident Claims
Tribunal – In the absence of limitation provided in the Statute- Held,
a claim raised before the MACT, can be considered to be genuine, so
long as it is a live and surviving claim- The claim in question raised
after 28 years of the Accident held to be stale and considered to be a
dead claim
The daughter of the respondents died in a motor accident on 02.02.1977.
A claim petition was filed, under Section 166 of the Motor Vehicles Act,
1988 (hereinafter referred to as 'the 1988 Act'), seeking compensation on
account of the motor accident, wherein the respondents' daughter had
died, on 23.02.2005 i.e., after a period of more than 28 years. The Motor
Accident Claims Tribunal entertained the above claim.
A prayer made to reject the claim petition, for the reason, that the said
claim had been raised 28 years after the accident in question, was rejected.
It is in these circumstances, that M/s Purohit and Company (the petitioner
herein) approached the High Court, wherein, the matter was re-
adjudicated.
Again, a prayer was made at the hands of the petitioner, that the claim had
been made belatedly, and was not a surviving claim. The High Court,
upheld the justiciability of the claim petition, on the short ground, that no
period of limitation had been provided for raising a claim for
compensation, under the Motor Vehicles Act, 1988.
Court are of the considered view, that a claim raised before the Motor
Accident Claims Tribunal, can be considered to be genuine, so long as it
is a live and surviving claim. Court satisfied in accepting the declared
position of law, expressed in the judgments relied upon by the learned
counsel for the appellant. It is not as if, it can be open to all and sundry, to
approach a Motor Accident Claims Tribunal, to raise a claim for
compensation, at any juncture, after the accident had taken place. The
individual concerned, must approach the Tribunal within a reasonable
time.
The question of reasonability would naturally depend on the facts and
circumstances of each case. court however, satisfied, that a delay of 28
years, even without reference to any other fact, cannot be considered as a
prima facie reasonable period, for approaching the Motor Accident Claims
Tribunal. The only justification indicated by the respondents, for initiating
proceedings after a lapse of 28 years, emerges from paragraph 4,
contained in the application for condonation of delay, filed by the
claimants, before the Tribunal. Paragraph 4 aforementioned is extracted
hereunder:
"4. That the Petitioners are poor person and they have no knowledge about
the Law. Also the Respondent has not pay the single pie towards any
compensation."
Having given our thoughtful consideration to the justification expressed
at the behest of the respondents, for approaching the Tribunal, after a
period of 28 years, court is of the view, that the explanation tendered,
cannot be accepted. Undoubtedly, the claim (pertaining to an accident
which had occurred on 02.02.1977), in the facts and circumstances of the
instant case, was stale, and ought to have been treated as a dead claim, at
the point of time, when the respondents approached the Tribunal by filing
a claim petition, on 23.02.2005.
In view of the reasons recorded hereinabove, court hereby set aside
the impugned order dated 07.07.2015, and allow the instant appeal, by
holding, that the claim raised by the respondents before the Motor
Accident Claims Tribunal, was not a surviving claim, when the
respondents approached the said Tribunal. M/s Purohit and Company
V. Khatoonbee and another, 2017 (35) LCD (SC) 2206
Ss.138
Now the issue before us is even though the first notice was issued
by the appellant within time to the correct address of the first respondent,
whether the High Court was right in rejecting the case of the appellant
herein on the ground that second notice was issued beyond the period of
limitation i.e. 15 days from the date of receiving dishonour intimation
from the bank under Clause (b) of the proviso to Section 138 of the N.I.
Act.
It is clear from Section 27 of the General Clauses Act, 1897 and Section
114 of the Indian Evidence Act, 1972, that once notice is sent by
registered post by correctly addressing to the drawer of the cheque, the
service of notice is deemed to have been effected. Then requirements
under proviso (b) of Section 138 stands complied, if notice is sent in the
prescribed manner. However, the drawer is at liberty to rebut this
presumption.
It is well settled that interpretation of a Statute should be based on the
object which the intended legislation sought to achieve.
"It is a recognized rule of interpretation of statutes that expressions used
therein should ordinarily be understood in a sense in which they best
harmonize with the object of the statute, and which effectuate the object of
the Legislature. If an expression is susceptible of a narrow or technical
meaning, as well as a popular meaning, the Court would be justified in
assuming that the Legislature used the expression in the sense which
would carry out its object and reject that which renders the exercise of its
power invalid"New India Sugar Mills Ltd. v. Commissioner of Sales Tax,
1963 AIR(SC) 1207.
This Court in catena of cases has held that when a notice is sent by
registered post and is returned with postal endorsement "refused" or "not
available in the house" or "house locked" or "shop closed" or "addressee
not in station", due service has to be presumed Jagdish Singh v. Natthu
Singh, 1992 1 SCC 647; State of M.P. v. Hiralal, 1996 7 SCC 523 and V.
Raja Kumari v. P. Subbarama Naidu, 2004 8 SCC 774.Though in process
of interpretation right of an honest lender cannot be defeated as has
happened in this case. From the perusal of relevant sections it is clear that
generally there is no bar under the N.I. Act to send a reminder notice to
the drawer of the cheque and usually such notice cannot be construed as
an admission of non-service of the first notice by the appellant as has
happened in this case.
Moreover the first notice sent by appellant on 12-04-1991 was
effective and notice was deemed to have been served on the first
respondent. Further, it is clear that the second notice has no relevance at
all in this case at hand. Second notice could be construed as a reminder of
respondent's obligation to discharge his liability. As the complaint, was
filed within the stipulated time contemplated under Clause (b) of Section
142 of the N.I. Act, therefore Section 138 r/w 142 of N.I. Act is attracted.
In the view of the matter, we set aside the impugned judgment of the High
Court. N. Parameswaram Unni V. G Kannan And Another 2017
C.R.L.J 2838
Service Law:
Employment secured by furnishing false caste certificate – removal of
respondent – No error.
The order for removal of the respondent who was working as
Farash in the office of the Revenue Divisional Commissioner, Central
Division, Cuttack (Second respondent) was set aside by the Orissa
Administrative Tribunal, Cuttack. The judgment of the Tribunal was
confirmed by the Division Bench of the High Court of Orissa at Cuttack.
We have examined the material on record and the submissions made by
the learned counsel appearing for the parties. We are not in agreement
with the judgment of the Tribunal as confirmed by the High Court that the
Respondent is entitled for reinstatement for the following reasons:
a. It is clear from the record that the Respondent was sponsored by
the Employment Exchange as a candidate belonging to a Schedule Tribe
community. His name would not have been sponsored but for the
certificate which showed that he belongs to Schedule Tribes community.
b. The State Level Scrutiny Committee recorded a finding that the
Respondent indulged in fraud in obtaining a certificate showing that he
belongs to a Schedule Tribe. The Committee recommended action to be
taken against the officer who had issued the certificate. The order passed
by the State Level Scrutiny Committee has become final as it has not been
set aside by any Court.
c. Though he was appointed in a post not reserved for Schedule
Tribes, he would not have been in the zone of consideration if he did not
produce the certificate showing that he belongs to Schedule Tribes.
d. The Tribunal has committed a serious error in recording a finding
that there is no evidence to show that the Respondent has obtained the
certificate only to procure employment.
e. It is clear from the facts that the Respondent fraudulently obtained
a certificate showing that he belongs to Schedule Tribes community which
stands cancelled by the order passed by the State level scrutiny committee.
It was held by Denning, L. J. in Lazarus Estates, Ltd. v. Beasley (1956) 1
All E.R. 341, 345 that ―No Court will allow a person to keep an advantage
which he has obtained by fraud. [...] Fraud unravels everything. The Court
is careful not to find fraud unless it is distinctly pleaded and proved; but
once it is proved it vitiates judgments, contracts and all transactions
whatsoever‖. State of Orissa V. Bibhisan Kankar 2017 (5) Supreme
814
Promotion – Empanelment and qualifying merit bench mark – Does
not confer any vested right for promotion.
The fact that the appellant has been empanelled in the list of
candidates due for promotion and also qualified the merit bench mark,
does not mean that he has acquired any vested right. The promotion to the
post of JWO, indisputably, is a select promotion hedged with the medical
fitness eligibility criterion to be fulfilled by the incumbent. That is not so
in the case of time bound promotion. We hold that there is no substance in
the contention that the appellant has in fact or in law been discriminated in
the manner. SBT Chaman Lal V. Union of India 2017(6) Supreme 166
Wakf Act
Sec.4(1A) (as amended by Act 27 of 2013)—Preliminary survey of a
Wakf—S.4(1A) applies only if survey of a Wakf was not done prior to
commencement of Wakf (Amendment) Act, 2013
In the matter on hand, the said provision also will not come to the
aid of the plaintiff inasmuch as the said sub-section can be employed only
if survey of a wakf was not done before the commencement of Wakf
(Amendment) Act, 2013. Admittedly in the matter on hand, the survey
was conducted prior to 1962 and based on such Surveyor‘s report only,
the list was prepared and the same was submitted to State Government,
which in turn, was forwarded to Wakf Board, the Wakf Board after
examining the report published the list in the Official Gazette in the year
1962. Hence, sub-section (1A) of Section 4 also will be of no avail to the
plaintiff. Madanuru Sri Rama Chandra Murthy vs. Syed Jalal, AIR
2017 SC 2653
Sec. 100 & O. 22, R.3-Suit for eviction and permanent injunction-
Plaintiff being central council Radhasoami Satsang filed suit against
defendants/licensee-During pendency of the suit many plaintiffs died-
Application under O. 22, R. 3 by defendant-Application allowed-
Appeal against also dismissed-Second appeal against-Maintainability
of-The order of abatement not a decree in terms of S. 2(2) CPC as
there is no adjudication of rights of parties on merit, hence it cannot
be said to be a decree-Second appeal not maintainable accordingly
rejected.
This second appeal is by the plaintiffs-Central Council Radhasoami
Satsang and its members, against the judgment and order dated 09th
November, 2016 passed by the learned Additional District Judge, Court
No. 12, Agra 1 in Civil Appeal No. 96 of 2012, Central Council
Radhasoami Satsang and others v. Dr. D.K. Hazara, and the order dated
24th February, 2012 passed by the learned Additional Civil Judge (Senior
Division), Court No. 5, Agra2 in Original Suit No. 223 of 1989, Central
Council Radhasoami Satsang v. Dr. Daya Kishore Hazara, allowing the
application of the defendant-respondent for abatment of the suit and
rejecting the application of the plaintiffs for impleadement of some of the
members of the society as plaintiff in the suit.
What emerges from the aforesaid judgments is that the order of abatement
is not a decree terms of Section 2(2) CPC as there is not adjudication of
rights of the parties on merit, hence it cannot be said to be a decree.
After careful consideration of the submissions made by the learned
counsel for the parties, the material on the record and the law discussed
above, I am of the view that the preliminary objection raised by Sri Ravi
Kant, learned Senior Counsel appearing for the respondent, merits
acceptance. Hence, the appeal is dismissed as not maintainable.
No order as to costs. Central Council Radhasoami Satsang And 21
Others V. Dr. D.K. Hazra, 2017(2) ARC 678.
Constitution of India
Art. 226- Interference- Compassionate Appointment- Rejection of-
Ground- Delay – Compassionate appointment cannot be made if the
family has sufficient means to carry on its affairs for long time-
Reiterated that the rule of compassionate appointment has an object
to give relief in destitution and is not a provision to provide alternate
employment
Court find that petitioner applied for compassionate appointment after a
considerable time from the death of his mother and, therefore, question of
compassionate appointment does not arise inasmuch it is well settled that
if the family had sufficient means to carry on its affairs for long time, in
such a case compassionate appointment cannot be made. The purpose of
compassionate appointment is not to provide employment by succession
but it is to meet immediate necessity arrived at due to sudden demise of
sole bread earner of the family leaving the legal heirs in penury.
The purpose of compassionate appointment is not for providing a post
against post. It is not reservation in service by virtue of succession. If the
family is not in penury and capable to maintain itself for a long time, no
mandamus would be issued after a long time for providing compassionate
appointment to a legal heir of the deceased employee.
It is thus clear that rule of compassionate appointment has an object to
give relief against destitution. It is not a provision to provide alternate
employment or an appointment commensurate with the post held by the
deceased employee. It is not by way of giving similarly placed life to the
dependents of the deceased. While considering the provision pertaining to
relaxation under Rules, 1974 the very object of compassionate
appointment cannot be ignored.
In view of above exposition of law and in the facts and circumstances of
the case, court did not find any error in the impugned order warranting
interference. Razee Ullah v. State of U.P. and others, 2017 (35) LCD
2137
Ss. 437, 438 – Interim bail – Application for – Pending successive bail
application for– Application ought to be listed before Judges, who is
in-charge of successive bail application
If the prayers are perused, the applicant had requested the Court to
release him on interim bail i.e. till the successive bail application is heard
and finally decided. In our views, there is a difference between interim
bail and temporary bail. Therefore, when an applicant makes a prayer to
release him for interim bail i.e. till the successive bail application is
decided, the concerned Judge has to deal with the case on merits.
Essentially it is in the nature of interim relief pending consideration of
prayer for regular bail. If an application is filed for interim bail, which
would not be for a specific period, the same would require detailed
scrutiny of evidence, therefore, in our views, it should be heard by the
Judge, who is in-charge of the successive bail application. Even
procedurally, such application for interim bail would be filed 'In' the main
application for regular bail and therefore will always tag along with such
proceedings.
However, when an accused, whose successive bail application is
pending before the High Court, files an application for releasing him on
bail for a limited period on various types of reasons, the Court has to look
into the reasons for the prayers made by the applicant for his temporary
release. There would be number of reasons for asking temporary bail such
as marriage in the family, death of relatives, etc.
When an under trial prisoner comes forward with a prayer to release him
from the judicial custody for a particular reason for a limited period, the
considerations before the Court would be different. When an application is
filed for temporary bail, the matter is not required to be argued on merits
for grant of regular bail. The Court, before whom such application for
temporary bail is placed for hearing, would examine the jail record of
accused, his behaviour in the jail, whether he is released on temporary bail
in past and his conduct during the temporary release period, police report,
etc. Therefore, when the Court finds that the cause put forward by the
accused is genuine, such application would be granted by the Court for a
limited period on appropriate terms and conditions. The criteria for
considering an application for temporary bail therefore would be different
than the application for interim bail, which is required to be decided on
merits after examining the evidence. Therefore, we answer the reference
as under:
(i) If the application is filed by an accused for interim bail in a pending
successive bail application, the same shall be listed before the Judge, who
is in-charge of successive bail application.
(ii) If temporary bail application is filed during the pendency of a
successive bail application, the same shall be placed before an appropriate
Court, as per the roster. Abhijit Prabhakar Konduskar v. State of
Gujarat, 2017 Cr.L.J. 3026 (Guj HC)(FB)
Criminal Trial
Competence of child witness – S. 118 of Indian Evidence Act –
Consideration of
Hon‘ble Court held that this is true that section 118 of Indian Evidence
Act contemplates no disqualification against the understanding of child
witness. However, it is also true that unless the competence is tested by
the Trial Judge, he/she would not be in a position to ascertain the
capability of child witness to understand the question.
The evidence of child witness cannot be rejected per se but the Court as a
rule of prudence is required to consider such an evidence with close
scrutiny. Shiv Kesh v. State of U.P. , 2017 (100) ACC 4
Evidence Act
S. 9 – Test Identification parade –Whether always necessary – Held,
‗No‘
Hon‘ble Court held that test identification is a device to establish the
identities of perpetrators of crime. But in this case, court find that the
identities of the assailants were not disputed and the assailants were
named in the FIR itself, and as such, holding of test identification parade
was not require. In the present case, FIR was lodged within 45 minutes of
incident disclosing identities of all the four assailants. At least two
witnesses emphatically claimed from the very beginning that they had
recognized the assailant. These witnesses have described them. In this
scenario, holding of test identification parade was not necessary. If
identities of assailants are established or prosecution is satisfied with the
available evidence regarding the identity a assailants, then there is no
necessity of holding the test identification parade. Court believe that even
in this case, there was no necessity of holding the test identification
parade as there was no dispute about identity of assailants. Trial court
rightly rejected the application for test identification. Bhairon Prasad &
Ors V. State, 2017 (4) ALJ 88
Interpretation of Statutes:
Principle of ejusdem generis
The decisions of three Full Benches of this Court as well as
Supreme Court, holding that the words ―or other proceedings‖ have to be
read ejusdem generis with the words ―original suits‖. They will not
include appeals or revisions.
The phrase ―other proceeding‖ have to be read ejusdem generis
with the words original suit. It was held that revision under Section 115
C.P.C. is not maintainable from revisional order of subordinate court.
Jagdish Narayan Tandon And 3 Others V. Onkar Nath Tandon And
10 Others, 2017 (4) ALJ 72
Land Acquisition Act
Ss. 4 (1), 5A and 17 (4)- Acquisition of land- Claim for additional
compensation and developed abadi land
This petition seeks the quashing of the order dated 23.6.2016 passed by
the Chief Executive Officer. New Okhia Industrial Development
Authority –respondent No. 3 rejecting the representation filed by the
petitioner for providing 64.70 % Additional Compensation and 10%
developed abadi land in view of the Full Bench decision in the case of
Gajraj and others v. State of U.P. and others, 2011 (11) ADJ 1 .
The issue that arises for consideration in this petition is whether the
benefit of the directions issued in Gajaraj for providing additional
compensation and land should be given to such tenure-holders also whose
lands were not acquired by the notifications under challenge in Gajarj.
The relief which was granted in Gajaraj cannot be made applicable to the
acquisition proceedings not covered by the acquisitions assailed in
Gajaraj. The petitioners are, therefore, not entitled to the relief claimed in
this petition
The impugned order, therefore, does not suffer from any illegality which
may call for interference by the court under Article 226 of the
Constitution. Baljeet and others V. State of U.P. and others, 2017 (3)
AWC 2364
Muslim Law
Issuance of 'Fatwa'
The 'Fatwa' issued by whatever body not emanating from any
judicial system recognized by law, is not binding on any one including the
person who had asked for it. Aaqil Jamil v. State of U.P.,2017 (4) ALJ
229
Provincial Small Cause Courts Act
Sec. 25 - Non-framing of issues as per procedure of CPC-Effect-Small
Causes Court is not under obligation to frame issues and record
findings on each issue separately, however, the Small Causes Court is
under obligation to consider the pleadings of the parties.
Next submission is that the court below had decided the suit without
framing the issues as per the procedure provided under the Civil
Procedure Code. The Small Causes Court is not under obligation to frame
issues and record findings on each issue separately. The proceedings by
the Small Causes Court are summary in nature, however, the Small
Causes Court is under obligation to consider the pleadings of the parties,
the evidences on record and specific findings on the issues raised therein
are required to be recorded. The suit for eviction filed by the respondents
has been decreed vide judgment and order dated 12.1.2017 with the
specific findings recorded therein that the rent of the suit premises was
30,000/- p.m. The revisionists were in arrears from July 2010 to July
2012. The notice dated 2.7.2012 terminating the tenancy was served upon
the revisionists. Despite service of the said notice, the revisionists did not
vacate the suit premises. The defence was struck off vide order dated
13.11.2014. The order of striking off defence was challenged in a revision
which is pending before this Court, however, there is no interim order
restraining the Small Caused Court to proceed with the order.
The plea taken regarding fixation of tenure of lease for a period of 15
years in ground No. 6 cannot to the aid of the revisionists for the reason
that the lease was on month to month basis. On account of default of the
revisionists, it was terminated by a valid notice which was duly served
upon the revisionists. No evidence has been brought on record nor there is
any material to dispute the assertion of the plaintiff regarding the rate of
rent, the period of default and the service of notice. In view thereof, no
infirmity is found in the findings recorded by the Small Causes Court. The
maximum period of lease agreed between the parties was subject to the
condition that the rent of the premises was paid every month regularly.
The S.C.C. Revision is found devoid of merits and hence dismissed.
Muthoot Finance Ltd. &Another V. Chandra Kant Gupta & 3
Others, 2017(2) ARC 55.
Registration Act
S. 49 – Proviso – Unregistered document affecting immovable
property – Use for collateral purpose – Unregistered lease deed
produced to claim that plaintiff is permanent lessee of suit land –
Cannot be used to prove nature of possession of plaintiff
In light of the legal position, it may be seen that in the instant case,
the contention of the learned counsel for the appellants that the
unregistered lease deed can be admitted in evidence to prove the nature
and possession of the appellants in the suit property being lessee on the
basis of the said case is wholly misplaced. Rather the ratio of the above
noted judgment of the Full Bench is that it is for the Court to decide in the
facts and circumstances of each case whether the unregistered document is
sought to be used for the purpose which can really be termed as collateral
one, distinct from the main purpose. The unregistered 1890 deed has been
produced and sought to be used by the appellants for the purpose of
establishing their title directly to the immovable property as sought to be
conveyed by the said document. The said deed, therefore, cannot be
accepted in evidence for collateral purpose i.e. as a proof of nature and
character of possession of the appellants in the suit property. Radha
Sharan Dubey V. Ram Niwas, 2017 (4) ALJ 277
SARFAESI Act
Ss. 13(8), (4), (10), (12), 38(2)(1)(b)—Sale of secured assets—Service
of 30 days‘ notice to borrower—Is mandatory—Said power of sale or
transfer cannot be exercised arbitrarily or whimsically in violation of
statutory provisions
Undoubtedly, public money should be recovered and recovery
should be made expeditiously, but it does not mean that the financial
institutions, which are concerned only with the recovery of their loans,
may be permitted to behave like property declares and be permitted
further to dispose of the secured assets in any unreasonable or arbitrary
manner in flagrant violation of statutory provisions.
Therefore, by virtue of the stipulations contained under the
provisions of the SARFAESI Act, in particular, Section 13(8), any sale or
transfer of a secured asset, cannot take place without duly informing the
borrower of the time and date of such sale or transfer in order to enable
the borrower to tender the dues of the secured creditor with all costs,
charges and expenses and any such sale or transfer affected without
complying with the said statutory requirement would be a constitutional
violation and nullify the ultimate sale. Ashok Kumar V. Authorized
Officer, Punjab National Bank, AIR 2017 All. 178
Service Law
Employment- Recovery of amount after retirement paid in excess-
Petitioner No. 1 had completed his service career and had retired
after attaining age of superannuation- His pension had already been
fixed- Excess payment was made in years 2005 and 2007 respectively
–Steps for recovery of same were initiated on 14.12.2016 –Thus,
recovery could not be held to be justified- Recovery order deserving
to be quashed- Special appeal stood allowed
In the instant case, Petitioners-appellants, who are two in numbers, are
before this Court, assailing the validity of the decision dated 24.01.2017
(Deena Nath Pandey and another vs. State of U.P. and others), wherein
learned Single Judge has refused to quash the recovery in question on
account of the fact that excess amount has been paid and the said fact has
been admitted before this Court and in view of this recovery is justified.
After respective arguments have been advanced the factual situation there
is no dispute that petitioner no.1 has completed his service carrier and has
retired after attaining the age of superannuation and his pension has
already been fixed. In reference to the petitioner no.2, he is still in
service. Excess payment was made in year 2005 and 2007 respectively
and steps for recovery of the same has been initiated on 14.12.2016.
The case in hand is squarely covered by the para meters of
aforementioned judgement, therefore, amount paid in excess, admittedly
being of year 2005 and 2007 respectively and recovery in question
admittedly being pressed in the year 2016, then the recovery cannot be
justified and accordingly, in our considered opinion, recovery order
deserves to be quashed. Deena Nath Pandey and another V. State of
U.P. and others, 2017 (3) AWC 3120
Wakf Act
Ss. 51, 52 and 85 –Code of Civil Procedure, declaring sale-deed to be
void –Held, that civil court had no jurisdiction to entertain suit-
Finding arrived at by Additional District Judge held to be erroneous
in law
The sole question for consideration before this Court is as to whether the
suit as was filed by the plaintiff was maintainable in the civil court. The
admitted case of the plaintiff was that the property was one which had
vested in a Waqf and so alienating it without the sanction of the Board
would render the sale-deed woid. When such was the case then in the
event of an illegal sale-deed being executed the board could have taken
recourse to the procedure as was prescribed under Section 52 of the Waqf
Act, 1995. Section 52 is the remedy which is available to the Board. A
bare reading of Section 85 of the Act, makes it clear that no suit lay in a
civil court. In view of what has been stated above, it can safely be said
that the finding arrived at by the Additional District Judge, Kanpur Nagar,
is errouneous in law. The civil court had not jurisdiction to entertain the
suit. Smt. Shakeela Khatoon V. Jangle Wali Masjid Waqf No. 277
and another, 2017 (3) AWC 2772
Words and Phrases
‗Aggrieved person‘ –Includes man against whom decision has been
pronounced, wrongly depriving him of something or refusing
something or affecting his title to someone
Normally a ‗person aggrieved‘ must be a man who has suffered
legal grievance, a man against whom a decision has been pronounced
which has wrongly deprived him of something or wrongfully refused
something or wrongfully affected his title to someone. Smt. Meenu
Pathak V. Revisional Authority/Dy. Commissioner, Stamp, AIR 2017
All. 132
Word ‗due process of law‘—
Means to person should be condemned unheard—Due process of
law requires that court should adjudicate rights of parties. Radha Sharan
Dubey vs. Ram Niwas, AIR 2017 (NOC) 828 (All)
Word ―elected‖—Meaning
The question requiring adjudication is whether the term ‗elected‘
can be confined to the process of election by ―casting of votes‖ or here the
word ‗elected‘ is wide enough to cover other modes, manners and ways
also. The Act 1860 or a General Clauses Act or any other statute, pari
material with the statute in question so as to throw light in a particular
manner.Ram Chandra Mission V. State of U.P., AIR 2017 (NOC) 688
(All.)
Ans. Pertaining to the bearing of expenses of Police Aid wherein the Civil
Court U/s. 151 CPC has allowed the application of police Aid.
It is stated that police held is an extra ordinary measure or procedure to
implement the execution of the order. In other words, it is to be regarded as an
extreme step where the court is convinced of the existence of a grave
emergency. As a General Rule the expenses of the Police Aid or help in carrying
out the execution of an injunction order passed by a civil court is on a party
who has applied for the same. However, there can be an exception to it and a
decision to this effect will have to be taken keeping in view all the facts and
circumstances of a particular case –
AIR 1995 BOM 61- Ratna Bai v. Stwa Rao,
AIR 2004 Bom 225- Neerabai J. Patil v. Narayan D. Patil,
AIR 2002 Cal. 91 –STP Ltd. v. Nirmal Jeet Singh
Q.2 Whether u/s 372 of the Indian Succession Act 1925 the succession can
be granted for bank locker also?
Ans. Hon’ble Calcutta High Court, Hon’ble Chhatisgarh High Court & Hon’nle
Madhya Pradesh High Court in the following cases have held that for access to
Bank locker or to receive ornaments kept in safe deposit locker in the Bank,
same not being a debt or security within meaning of S. 372, Succession
certificate cannot be granted.
AIR 1982 Cal 92; State Bank of India v. Netai Ch. Porel (DB)
AIR 2007 Chh 36; Bimla Devi v. Shobha Wali
AIR 1997 MP 196; Sharda Chopra v. State Bank of India
Q. 3 ररहाई के सम्बन्ध में हाई कोर्ग के “Bail Order” में यदद Clerical Errorहो र्यी
िो उसके आधार ऩर क्या ररहाई रोकी जायेर्ी या नही। इस सम्बन्ध में यदद कोई
Ruling/Circular Orderहो िो कृऩया अवर्ि कराने का कष्र् करें ।
Ans. Hon’ble High Court of Judicature at Allahabd (D.B.) in Cri. Appeal No.
1472/2005 decided on 12.9.2012 and cautioned the Trial Court to avoid
unnecessary harassment of litigants in criminal matters. This position was
reiterated by Hon’ble High Court in Cri. Mic.Application No. 8724 of 2013 in
which general directions were issued to magistrate in this regard.
The Hon’ble High Court of Judicature at Allahabad had also issued on 16.1.2013
Circular letter in pursuance of the order passed by (D.B) as mentioned above. In
circular letter No. 16124/Adm. “G-II” dated Allahabad 2.12.2013 in which the
Hon’ble Court expressed its extreme displeasure on the unnecessary
harassment of the litigants in criminal matters on account of typing mistake
which occurred in the order of the Hon’ble Court if otherwise the case and
parties may be located with other given particulars. In this circular letter the
judgment of Hon’ble Court in Cri. Misc. Case no 3680/2013 (titled Musibat Ali
and others v. State of U.P. and others) was circulated among judicial officers.
Ans. The benefit under Sec. 4, Probation of Offenders Act, 1958 should not
be given to a convict for committing offences under Sections 419 &420 I.P.C. in
view of the law laid down by the Hon’ble Supreme Court. The Hon’ble Supreme
Court in Nilgiris Bar Association v. R.K. Mahalingham and another, 1998 Cr.LJ
675, held that the crime committed under Sections 419, 420 IPC should be
detterently dealt with and consequently set aside the order releasing convict
on probation. The Hon’ble Supreme Court again in A.S. Krishnan & others v.
State of Kerala, 2004 Cr.LJ 2833, observed that the offences committed u/s
420, 120-B, 201 & 471 r/w S. 34 deserve deterrent punishment in the larger
interest of society and the plea relating to extending benefit or S. 4 Probation
of Offenders Act, 1958 was not allowed.