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THE INDIAN LAW INSTITUTE (Deemed University)

WHAT THE SUPREME COURT HAS SAID ?

Scope of Art. 136 in reweighing the Evidence

The Supreme Court examined the scope of Art.136 of the Constitution of India, 1950 providing for appeal by Special Leave in reweighing the evidence in criminal cases. It was held that the Supreme Court cannot exercise its overriding powers under Art.136 to reweigh evidence. It cannot disturb concurrent findings of facts reached upon by the trial court after proper appreciation of evidence and if two views are possible, one indicating conviction and other acquittal, Supreme Court would not interfere with order of acquittal. However it was held that if acquittal is perverse or imprudent or manifestly illegal or grossly unjust, Supreme Court would interfere with. In the facts of the case, the Court held that all those present in spot need not be examined to prove guilt of the accused; hence non-examination of any other witness was not fatal to prosecution. Prosecution witnesses cannot be disbelieved or discarded merely on reason of non-examination of other witnesses. Therefore, high court clearly erred in reversing the order of conviction by the trial court. (Raj Narain Singh v. State of Uttar Pradesh and Others, decided on 18 September 2009 )

Inherent powers of High Court under S. 482 of Cr.PC

In this case, the respondent lodged FIR against appellants alleging commission of offences under sections 406 and 420 of IPC. Even while investigation was in progress respondent filed petition under section 482 of CrPC. The high court directed the police to expedite and complete investigation. Hence the issue in the present appeal was whether it was open to the high court in exercise of its jurisdiction under section 482 of CrPC to interfere with statutory power of investigation by police and if such a power is available with the court, what are the parameters for its interference. As per the Code, the power under section 482 of CrPC can be exercised by the high court either suo motu or on an application (i) to secure ends of justice; (ii) to give effect to any order under Code; (iii) to prevent abuse of process of any court. Therefore, the high court cannot direct investigating agency to investigate a case in accordance with its views as that would

amount to unwarranted interference. In the present case, the high court, without recording any reason whatsoever, directed police that it is obligatory on their part to record statements from witnesses, arrest, and seizure of property and filing of charge sheet. The high court interfered with investigation of crime which is within the exclusive domain of police. It was held in the present case that without realising the consequences, the high court issued directions in a casual and mechanical manner without hearing appellants. The order of the high court was held to be an order passed overstepping the limits of judicial interference and hence null and void.( D. Venkatasubramaniam and Others v. M. K. Mohan Krishnamachari and Another, decided on 14 September 2009)

Constitutionality of the Office of Profit and Parliament (Prevention of Disqualification) Amendment Act, 2006

The constitutionality of Parliament (Prevention of Disqualification) Amendment Act, 2006 and the exemption of 55 offices from the list of 'office of profit' by Amendment Act with retrospective effect for removal of disqualification were discussed in this case. It was held that the Parliament has the power to enact prevention of disqualification law under article102 (1) (a) with retrospective effect and the question of disqualification of a Member of Parliament is to be decided by President of India. The declaration of disqualification by the President or Speaker/Chairman of the House is a condition precedent for vacancy of seat. However, the decision of President or Chairman/Speaker is merely adjudication and confirmation of pre-existing fact and the vacancy of the seat is consequential. Unless disqualification of a member has been challenged, he could be continued as a member. The legislature is free from undue influence of executive while enacting prevention of disqualification laws. It was further held that requirement of reference to Joint Committee was merely a parliamentary procedure and not a constitutional convention. The Parliament has the power to exempt offices from disqualification retrospectively and the legislative power of Parliament could not be denuded by violation of any norm or traditional procedure. Non-observation of an occasional procedure does not render any prevention of disqualification law unconstitutional. Therefore, matter was held not required to be referred to Joint Committee and the Amendment Act of 2006 was held constitutionally valid. (Consumer Education and Research Society v. Union of India and Others, decided on, 24 August 2009)

Liability of Insurance Company to Pay Compensation in the Absence of a Valid Insurance Coverage

The liability of an Insurance Company to pay compensation under the Motor Vehicles Act, 1988 in the absence of a valid insurance coverage and the powers of the Supreme Court under article 142 of the Constitution of India was the issue in this case. More precisely the question was whether in any event an Insurance Company can prove that it does not have any liability to pay any amount in law to the claimants under Motor Vehicles Act, 1988 or any other enactment, can the Court yet

compel it to pay amount in question by giving it the liberty to later on recover same from owner of vehicle. Previous decisions of the court holding that even if insurance company has no liability, yet it must pay and later on recover it from the owner of the vehicle were challenged in this case. In the light of the conflicting opinions regarding the moot question as to whether in cases where the insurance company has no liability to pay at all, can it be compelled by an order of the Court in exercise of its jurisdiction under article 142 of the Constitution to pay compensation amount and later on recover it from the owner of the vehicle, the matter was referred to the Larger Bench. (National Insurance Company Limited v. Parvathneni and Another, decided on 31 August 2009 ).

High Courts jurisdiction under S. 482 Cr PC

(M.N. Ojha and Ors. v. Alok Kumar Srivastav and Anr. Cri. Appeal No. 1582 of 2009 Decided on Aug 21, 2009)

The Supreme Court while reiterating that frequent and uncalled for interference by the High Court may result in causing obstruction in progress of the inquiry in a criminal case which may not be in the public interest but nevertheless emphasized that the High Court cannot refuse to exercise its jurisdiction if the interest of justice so required where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no fair minded and informed observer can ever reach a just and proper conclusion as to the existence of sufficient grounds for proceeding.

Interim bail should be granted pending disposal of the final bail application

(Chal Kamlendra Pratap Singh v. State of U.P. & Others, decided on March 23, 2009)

The Supreme Court has held that arrest is not a must in all cases of cognizable offences. In deciding whether to arrest or not the police officer must be guided and act according to the principles laid down in Joginder Kumar v. State of U.P. (1994 Cr.LJ 1981). The Court directed to follow the decision in Amaravati (2005 CrLJ 755); wherein it was held that the court, if deems fit in the facts and circumstances of the case, may grant interim bail pending final disposal of bail application; by all courts in U.P. in letter and spirit especially when the provisions of anticipatory bail does not exist in U.P. As per the apex court, in appropriate cases, interim bail should be granted pending disposal of the final bail application, since arrest and detention of a person can cause irreparable loss to a persons reputation.

Standard of Proof in Corrupt Practices in Elections

(M.J. Jacob v. A. Narayanan & Ors.Civil Appeal No. 3611 of 2008 decided on March 6, 2009)

In the instant case the election of a member of the Kerala Legislative Assembly was declared void by the High Court of Kerala and hence the appeal. The ground was corrupt practice committed by the publication of a pamphlet by the appellants election agent. Reversing the impugned judgment the court held thus:

Even assuming that an inference can be drawn from the allegation , that is only one possible inference. There may be any member of other inference also. It is well settled that in an Election Petition for proving an allegation of corrupt practice the standard of proof is like that in a Criminal case. In other words, the allegation must be proved beyond reasonable doubt, and if two views are possible then the benefit of doubt should go to the elected candidate.

Acts which does not constitute infringement of copyright

[Academy of General Edu., Manipal & Anr. v. B. Malini Mallya, Civil Appeal No. 389 of 2008 decided on January 23, 2009]

The Supreme Court in the instant case held that Section 52 of the Copyright Act, 1957 provides certain acts which would not constitute an infringement of a copyright. When a fair dealing is made, inter alia, of a literary or dramatic work for the purpose of private use including research and criticism or review, whether of that work or of any other work, the right in terms of the provisions of the Act cannot be claimed. Thus, if some performance or dance is carried out within the purview of the Section 52, the order of injunction shall not be applicable. Similarly, appellant being an educational institution, if the dance is performed within the meaning of provisions of clause (i) of sub-section (1) of Section 52 the order of injunction shall not apply. Yet again, if such performance is conducted before a non-paying audience by the appellant institution, if the institution comes within the purview of amateur club or society, the same would not constitute any violation of the order of injunction.

Importance of Dying Declarations in Criminal Cases (State of U.P v. Sukhpal Singh and others, Criminal appeal no 1285-1287 of 2001 decided on January 12 2009) Setting aside the decision of the High Court of judicature at Allahabad, the Supreme Court reemphasized the importance of dying declarations in criminal cases in the following words: The High Court in the impugned judgment has gravely erred in totally ignoring the dying declarations, which was recorded by the Magistrate. The apex court also observed that, even though the appellate court is given wide powers to review the trial courts conclusion, this power must be exercised with great care and caution. Parameters for releasing a convict on probation (State of M.P v. Abdul Kdir And Anr, Criminal Appeal No. 1289 of 2002 decided on February 13,2009) In this case, a life convict filed a writ petition before the Single Bench of the Madhya Pradesh High Court praying to be released under the provision of Madhya Pradesh Prisoners (Release on Probation) Act, 1954. The Single Bench by a practically non-reasoned order held the petitioner to be released on probation. In the appeal by the State the Division Bench held that there was no substance in the appeal and also noted that the appeal was barred by 32 days, and, therefore, dismissed the Letters Patent Appeal. The Supreme Court set aside the impugned order of the Division Bench and directed to rehear the Letters Patent Appeal on condonation of delay keeping in view parameters indicated in Arvind Yadav v. Ramesh Kumar [2003 (6) SCC 144]. Guesswork regarding the income of the deceased not to be detached from reality in MACT cases

(U.P State Road Transport Corporation v. Shanti Devi and Anr, Civil appeal No/597 of 2009 decided on February 3, 2009-03-13)

These appeals and cross objections are related to the rationale of compensation amount in a Motor Accident case. The Motor Accident Claims Tribunal taking the income of the deceased as RS 1,000/- per moth and deducting RS 500/- towards personal expenses assessed the compensation to be RS 90,000/- after applying a multiplier of 15. Interest at 6% per annum was awarded from the date of application.

In the appeal file by the Corporation the High Court found the income assessed to be low and fixed it at RS 2000/- from which one-third was to be deducted for personal expenses. The High Court taking the multiplier as 15 assessed the compensation as RS 2,45,000/- with 6% interest.

The apex court found that when there is a lack of material regarding the income of the deceased there is scope for some amount of guesswork but without totally detaching from reality. On the basis of this reasoning the Supreme Court held that the annual income of the deceased could be taken as 1500/-per month out of which one-third can be deducted for personal expenses. Taking multiplier as 11 the Court assessed the compensation to be 1,32,000/- with 6% interest.

No notices to a doctor or hospital without receiving an expert committees report

(Martin F. DSouza v. Mohd. Ishfaq, Civil Petition No.3541 of 2002,decided on February 17, 2009.) The Supreme Court has ruled that whenever a complaint is received against a doctor or hospital by the consumer fora or by the criminal court then before issuing notice to the doctor or hospital against whom the complaint was made the consumer fora or criminal court should first refer the matter to a competent doctor or committee of doctor, specialized in the field relating to which the medical negligence is attributed, and only after that doctor or committee reports that there is a prima facie case of medical negligence should notice be then issue to the concerned doctor/hospital. This is necessary to avoid harassment to doctor who may not be ultimately found to be negligent.

Discretionary Power under Article 136

(Anurag Kumar v. Mohan Lal & Anr.,(Civil Appeal No.446 of 2009) decided on 27.01.2009)

By reiterating its earlier decisions, in (1999) 2 SCC 321) the Apex court held that though special leave is granted under Article136 of the Constitution in a particular petition, the discretionary power which is vested in the court at the stage of special leave petition continues to remain with the Court even at the stage when the appeal comes up for hearing and when both sides are heard on merit As per the Court, the discretionary power under Article 136, is an exceptional and overriding power to be exercised sparingly with caution in extraordinary and special situation.

Non-reasoned order by the high court

(State Represented by Tahsildar Cum Sales Officer v. M. Janakiranman and Anr, Criminal Appeal No. 557-558 of 2002 decided on February 9, 2009)

This appeal was filed against the acquittal order by the single judge of the Madras High Court in an Excise case. The apex court, while remitting the matter to the high court for fresh consideration, criticized the high court for not giving a reasoned order. The Court observed that the High Court has even not indicated as to how the conclusions of the trial court were without any basis or not sustainable.

Importance of Dying Declarations in Criminal Cases

(State of U.P v. Sukhpal Singh and others, Criminal appeal no 1285-1287 of 2001 decided on January 12 2009)

Setting aside the decision of the High Court of judicature at Allahabad, the Supreme Court reemphasized the importance of dying declarations in criminal cases in the following words: The High Court in the impugned judgment has gravely erred in totally ignoring the dying declarations, which was recorded by the Magistrate. The apex court also observed that, even though the appellate court is given wide powers to review the trial courts conclusion, this power must be exercised with great care and cautio

Parameters in the matter of release on probation In this case, a life convict filed a writ petition before the Single Bench of the Madhya Pradesh High Court praying to be released under the provision of Madhya Pradesh Prisoners (Release on Probation) Act, 1954. The Single Bench by a practically non-reasoned order held the petitioner to be released on probation. In the appeal by the State the Division Bench held that there was no substance in the appeal and also noted that the appeal was barred by 32 days, and, therefore, dismissed the Letters Patent Appeal. The Supreme Court set aside the impugned order of the Division Bench and directed to rehear the Letters Patent Appeal on condonation of delay keeping in view parameters indicated in Arvind Yadav v. Ramesh Kumar [2003 (6) SCC 144]. (State of M.P v. Abdul Kdir And Anr, Criminal Appeal No. 1289 of 2002 decided on February 13,2009)

Guesswork regarding the income of the deceased not to be detached from reality in MACT cases

These appeals and cross objections are related to the rationale of compensation amount in a Motor Accident case. The Motor Accident Claims Tribunal taking the income of the deceased as RS

1,000/- per moth and deducting RS 500/- towards personal expenses assessed the compensation to be RS 90,000/- after applying a multiplier of 15. Interest at 6% per annum was awarded from the date of application.

In the appeal file by the Corporation the High Court found the income assessed to be low and fixed it at RS 2000/- from which one-third was to be deducted for personal expenses. The High Court taking the multiplier as 15 assessed the compensation as RS 2,45,000/- with 6% interest.

The apex court found that when there is a lack of material regarding the income of the deceased there is scope for some amount of guesswork but without totally detaching from reality. On the basis of this reasoning the Supreme Court held that the annual income of the deceased could be taken as 1500/-per month out of which one-third can be deducted for personal expenses. Taking multiplier as 11 the Court assessed the compensation to be 1,32,000/- with 6% interest. (U.P State Road Transport Corporation v. Shanti Devi and Anr, Civil appeal No/597 of 2009 decided on February 3, 2009-03-13)

No notices to a doctor or hospital without receiving an expert committees report

The Supreme Court has ruled that whenever a complaint is received against a doctor or hospital by the consumer fora or by the criminal court then before issuing notice to the doctor or hospital against whom the complaint was made the consumer fora or criminal court should first refer the matter to a competent doctor or committee of doctor, specialized in the field relating to which the medical negligence is attributed, and only after that doctor or committee reports that there is a prima facie case of medical negligence should notice be then issue to the concerned doctor/hospital. This is necessary to avoid harassment to doctor who may not be ultimately found to be negligent. (Martin F. DSouza v. Mohd. Ishfaq, Civil Petition No.3541 of 2002,decided on February 17, 2009.)

Discretionary Power under Article 136

By reiterating its earlier decisions, in (1999) 2 SCC 321) the Apex court held that though special leave is granted under Article136 of the Constitution in a particular petition, the discretionary power which is vested in the court at the stage of special leave petition continues to remain with the Court even at the stage when the appeal comes up for hearing and when both sides are heard

on merit As per the Court, the discretionary power under Article 136, is an exceptional and overriding power to be exercised sparingly with caution in extraordinary and special situation. (Anurag Kumar v. Mohan Lal & Anr.,(Civil Appeal No.446 of 2009) decided on 27.01.2009)

Non-reasoned order by the high court

This appeal was filed against the acquittal order by the single judge of the Madras High Court in an Excise case. The apex court, while remitting the matter to the high court for fresh consideration, criticized the high court for not giving a reasoned order. The Court observed that the High Court has even not indicated as to how the conclusions of the trial court were without any basis or not sustainable. (State Represented by Tahsildar Cum Sales Officer v. M. Janakiranman and Anr, Criminal Appeal No. 557-558 of 2002 decided on February 9, 2009).