Important Law Points
A Quick Summary of Legal Developments:-
ANTICIPATORY BAIL-There is no justification for reading into Section 438 Cr P C the limitations mentioned in Section 437 Cr P C – The proper course of action on an application for anticipatory bail ought to be that after evaluating the averments and accusations available on the record if the court is inclined to grant anticipatory bail then an interim bail be granted and notice be issued to the Public Prosecutor – – the accused is released on anticipatory bail by the trial court, then it would be unreasonable to compel the accused to surrender before the trial court and again apply for regular bail–GUIDELINES ISSUED link
APPLICATION OF LAW-In Sant Lal Gupta & Ors. v. Modern Coop. Group Housing Society Ltd. & Ors., (2010) 13 SCC 336, this Court held: Page 42 “It is a settled proposition of law that what cannot be done directly, is not permissible to be done obliquely, meaning thereby, whatever is prohibited by law to be done, cannot legally be effected by an indirect and circuitous contrivance on the principle of “quando aliquid prohibetur, prohibetur et omne per quod devenitur ad illud”. An authority cannot be permitted to evade a law by “shift or contrivance”.” (See also: Jagir Singh v. Ranbir Singh, AIR 1979 SC 381; A.P. Diary Dev. Corporation federation v. B. Narsimha Reddy & Ors. AIR 2011 SC 3298; and State of Tamil Nadu & Ors. v. K. Shyam Sunder & Ors. AIR 2011 SC 3470).[Dr. Subramanian Swamy Versus State of Tamil Nadu & Ors January 6, 2014]
ADVERSE POSSESSION– Plea of adverse possession being essentially a plea based on facts, it was required to be proved by party raising it, on basis of proper pleadings and evidence. Burden to prove such plea was, therefore, on Defendant who had raised it. When both Courts below held that, Defendant has failed to prove plea of adverse possession in relation to suit land then such, concurrent findings of fact was un-impeachable and binding on High Court. It is a settled principle of law of adverse possession that person, who claims title over property on strength of adverse possession and thereby wants Court to divest true owner of his ownership rights over such property, is required to prove his case only against true owner of property. It is equally well-settled that, such person must necessarily first admit ownership of true owner over property to knowledge of true owner and secondly, true owner has to be made a party to suit to enable Court to decide plea of adverse possession between two rival Claimants. It is only thereafter and subject to proving other material conditions with aid of adequate evidence on issue of actual, peaceful, and un-interrupted continuous possession of person over suit property for more than 12 years to exclusion of true owner with element of hostility in asserting rights of ownership to knowledge of true owner, a case of adverse possession can be held to be made out which, in turn, results in depriving the true owner of his ownership rights in property and vests ownership rights of property in person who claims it. In this case, Defendant did not admit Plaintiff’s ownership over suit land and, therefore, issue of adverse possession, could not have been tried successfully at instance of Defendant as against Plaintiff. That apart, Defendant having claimed ownership over the suit land by inheritance as an adopted son of Rustum and having failed to prove this ground, he was not entitled to claim title by adverse possession against Plaintiff LINK[Dagadabai(Dead) by L.Rs.VERSUSAbbas @ Gulab Rustum Pinjari[April 18, 2017]
ALIMONY PERMANENT– 5. Section 25 of the Hindu Marriage Act, 1955 confers power upon the court to grant a permanent alimony to either spouse who claims the same by making an application. Sub-section (2) of Section 25 of Hindu Marriage Act confers ample power on the court to vary, modify or discharge any order for permanent alimony or permanent maintenance that may have been made in any proceeding under the Act under the provisions contained in Sub-section (1) of Section 25. In exercising the power Under Section 25 (2), the court would have regard to the “change in the circumstances of the parties”. There must be some change in the circumstances of either party which may have to be taken into account when an application is made under Sub-section (2) of Section 25 for variation, modification or rescission of the order as the court may deem just. The review petition under Order XLVII Rule 1 Code of Civil Procedure came to be filed by the Respondent-wife pursuant to the liberty granted by this Court when the earlier order dated 02.02.2015 awarding a maintenance of Rs. 16,000/- to the Respondent-wife as well as to her minor son was under challenge before this Court. As pointed out by the High Court, in February 2015, the Appellant-husband was getting a net salary of Rs. 63,842/- after deduction of Rs. 24,000/- on account of GPF and Rs. 12,000/- towards income-tax. In February, 2016, the net salary of the Appellant is stated to be Rs. 95,527/-. Following Dr. Kulbhushan Kumar v. Raj Kumari and Anr. (1970) 3 SCC 129, in this case, it was held that 25% of the husband‘s net salary would be just and proper to be awarded as maintenance to the Respondent-wife. The amount of permanent alimony awarded to the wife must be befitting the status of the parties and the capacity of the spouse to pay maintenance. Maintenance is always dependant on the factual situation of the case and the court would be justified in moulding the claim for maintenance passed on various factors. Since in February, 2016, the net salary of the husband was Rs. 95,000/- per month, the High Court was justified in enhancing the maintenance amount. However, since the Appellant has also got married second time and has a child from the second marriage, in the interest of justice, we think it proper to reduce the amount of maintenance of Rs. 23,000/- to Rs. 20,000/- per month as maintenance to the Respondent-wife and son[ Kalyan Dey Chowdhury vs. Rita Dey Chowdhury Nee Nandy -19.04.2017]
ABATEMENT-“ Abatement”, thus, means certain amount of active suggestion or support to do the act- the concept of “ abatement” as found in Section 107 IPC-The word instigate” literally means to goad, urge forward, provoke, incite or encourage to do an act. A person
is said to instigate another person when he actively suggests or stimulates him to an act by any means or language, direct or indirect, whether it takes the form of express solicitation or of hints, insinuation or encouragement. Instigation may be in (express) words or may be by (implied) conduct.Therefore, a person instigating another has to “goad” or “urge forward” the latter with the intention to provoke, incite or encourage the doing of an act with a latter. In order to prove abatement, it must be shown that the accused kept on urging or annoying the deceased by words, taunts until the deceased reacted. A casual remark or something said in routine or usual conversation should not be construed or misunderstood as ABATEMENT -Be it clearly stated that mere allegation of harassment without any positive action in proximity to the time of occurrence on the part of the accused that led a person to commit suicide, a conviction in terms of Section 307 IPC is not sustainable. A casual remark that is likely to cause harassment in ordinary course of things will not come within the purview of instigation. A mere reprimand or a word in a fit of anger will not earn the status of abatement ,There has to be positive action that creates a situation for the victim to put an end to life. LINK
CORRUPTION-WHETHER A COMPLAINT CAN BE FILED BY A CITIZEN FOR PROSECUTING A PUBLIC SERVANT FOR AN OFFENCE UNDER THE PREVENTION OF CORRUPTION ACT, 1988 LINK
CRIME DEFINITION-A crime is an act or omission prohibited by law attracting certain legal consequences like imprisonment, fine etc. Obviously, acts or omissions constituting offences/crimes are capable of being committed only by persons either natural or juridical.[N. Harihara Krishnan Versus J. Thomas August 30, 2017]
CRIMINAL TRIAL, LONG – A criminal trial cannot be allowed to assume the character off fishing and roving inquiry. It would not be permissible in law to permit a prosecution to linger case.[Satish Mehra Versus State of N.C.T. of Delhi & Anr November 22, 2012]
Cause of action estoppel” and “issue estoppel-When the proceedings have attained finality parties are bound by the judgment and are estopped from questioning it. They cannot litigate again on the same cause of action nor can they litigate any issue which was necessary for decision in the earlier litigation. These two aspects are “cause of action estoppel” and “issue estoppel”. These two terms are of common law origin.Again, once an issue has been finally determined, parties cannot subsequently in the same suit advance arguments or adduce further evidence directed to showing that the issue was wrongly determined. Their only remedy is the higher forum if available. The determination of the issue between the parties gives rise to, as noted above, an issue link
COMMON INTENTION– Devi Lal Vs. State of Rajasthan, (1971) 3 SCC 471, in para 13 held that “the words ‘in furtherance of the common intention of all’ are a most essential part of Section 34 of the Indian Penal Code. It is common intention to commit the crime actually committed. The common intention is anterior in time to the commission of the crime. Common intention means a pre-arranged plan.” MUTHURAMALINGAM & ORS.
STATE REPRESENTED BY INSPECTOR OF POLICE ( DEFINITION REFERRED)-Moreover, a distinction between ‘’common intention’ and ‘common object’ was made out by this Court in the case of Chhitarmal Vs. State of Rajasthan, (2003) 2 SCC 266 as under:
“A clear distinction is made out between common intention and common object in that common intention denotes action in concert and necessarily postulates the existence of a pre-arranged plan implying a prior meeting of the minds, while common object does not necessarily require proof of prior meeting of minds or pre-concert. Though there is substantial difference between the two sections, they also to some extent overlap and it is a question to be determined on the facts of each case whether the charge under section 149 overlaps the ground covered by section 34.”( DISTINCTION RELIED)-However, an overt act is not always an inflexible requirement of rule of law to establish culpability of a member of an unlawful assembly. The crucial question is whether the
assembly entertained a common unlawful object and whether the accused was one of the members of such an assembly by intentionally joining it or by continuing in it being aware of the facts which rendered the assembly unlawful. Without unlawful object no assembly becomes an unlawful assembly. [MUTHURAMALINGAM & ORS Versus STATE REPRESENTED BY INSPECTOR OF POLICE[December 9, 2016]
- Common intention is a state of mind. It is not possible to read a person’s mind. There can hardly be direct evidence of common intention. The existence or non-existence of a common intention amongst the accused has to be deciphered cumulatively from their conduct and behavior in the facts and circumstances of each case. Events prior to the occurrence as also after, and during the occurrence, are all relevant to deduce if there existed any common intention. There can be no straight jacket formula. The absence of any overt act of assault, exhortation or possession of weapon cannot be singularly determinative of absence of common intention. State of Rajasthan vs. Shobha Ram, (2013) 14 SCC 732, observing as follows :-
“10. Insofar as common intention is concerned, it is a state of mind of an accused which can be inferred objectively from his conduct displayed in the course of commission of crime and also from prior and subsequent attendant circumstances. As observed in Hari Ram v. State of U.P.6 (SCC p. 622, para 21), the existence of direct proof of common intention is seldom available and, therefore, such intention can only be inferred from the circumstances appearing from the proved facts of the
case and the proved circumstances. Therefore, in order to bring home the charge of common intention, the prosecution has to establish by evidence, whether direct or
circumstantial, that there was plan or meeting of mind of all the accused persons to commit the offence before a person can be vicariously convicted for the act of the other.” [Rajkishore Purohit vs. State of Madhya Pradesh & Ors. [01.08.2017]
CONDONATION OF DELAY:- It is correct that condonation of delay cannot be a matter of course; it is also correct that in seeking such condonation the State cannot claim any preferential or special treatment. However, in situation where there has been no gross negligence or deliberate inaction or lack of bonafides this Court has always taken a broad and liberal view so as to advance substantial justice instead of terminating a proceeding on a technical ground like limitation. Unless the explanation furnished for the delay is wholly unacceptable or if no explanation whatsoever is offered or if the delay is inordinate and third party rights had become embedded during the interregnum the Courts should lean in favour of condonation. Our observations in Postmaster General v. Living Media India Ltd.1 and Amalendu Kumar Bera v. State of West Bengal do not strike any discordant note and have to be understood in the context of facts of the respective cases[STATE OF RAJASTHAN & ANR. VERSUS BAL KISHAN MATHUR (D) THROUGH LRS. & ORS. SEPTEMBER 16, 2013]
CRIMINAL CONSPIRACY-It is now, however, well settled that a conspiracy ordinarily is hatched in secrecy. The Court for the purpose of arriving at a finding as to whether the said offence has been committed or not may take into consideration the circumstantial evidence. However, while doing so, it must be borne in mind that meeting of mind is essential; mere knowledge or discussion would not be sufficient. Yet, the prosecution has failed to prove the evidence which establishes any prior meeting of mind of the accused. [STATE (GOVERNMENT OF NCT OF DELHI) VERSUS NITIN GUNWANT SHAH September 16, 2015]
CRUELTY MENTAL– In Vishwanath Agrawal v. Sarla Vishwanath Agrawal, while dealing with mental cruelty, it has been opined thus: – “22. The expression “cruelty” has an inseparable nexus with human conduct or human behaviour. It is always dependent upon the social strata or the milieu to which the parties belong, their ways of life, relationship, temperaments and emotions that have been conditioned by their social status.” In Samar Ghosh v. Jaya Ghosh , this Court has given certain illustrative examples wherefrom inference of mental cruelty can be drawn. The Court itself has observed that they are illustrative and not exhaustive. We think it appropriate to reproduce some of the illustrations: – “(i) On consideration of complete matrimonial life of the parties, acute mental pain, agony and suffering as would not make possible for the parties to live with each other could come within the broad parameters of mental cruelty. (ii) On comprehensive appraisal of the entire matrimonial life of the parties, it becomes abundantly clear that situation is such that the wronged party cannot reasonably be asked to put up with such conduct and continue to live with other party. Mental cruelty is a state of mind. The feeling of deep anguish, disappointment, frustration in one spouse caused by the conduct of other for a long time may lead to mental cruelty. (vii) Sustained reprehensible conduct, studied neglect, indifference or total departure from the normal standard of conjugal kindness causing injury to mental health or deriving sadistic pleasure can also amount to mental cruelty. (x) The married life should be reviewed as a whole and a few isolated instances over a period of years will not amount to cruelty. The ill conduct must be persistent for a fairly lengthy period, where the relationship has deteriorated to an extent that because of the acts and behaviour of a spouse, the wronged party finds it extremely difficult to live with the other party any longer, may amount to mental cruelty. xxx xxx xxx (xiv) Where there has been a long period of continuous separation, it may fairly be concluded that the matrimonial bond is beyond repair. The marriage becomes a fiction though supported by a legal tie. By refusing to sever that tie, the law in such cases, does not serve the sanctity of marriage; on the contrary, it shows scant regard for the feelings and emotions of the parties. In such like situations, it may lead to mental cruelty.” 26. In the said case the Court has also observed thus: – “99. … The human mind is extremely complex and human behaviour is equally complicated. Similarly human ingenuity has no bound, therefore, to assimilate the entire human behaviour in one definition is almost impossible. What is cruelty in one case may not amount to cruelty in the other case. The concept of cruelty differs from person to person depending upon his upbringing, level of sensitivity, educational, family and cultural background, financial position, social status, customs, traditions, religious beliefs, human values and their value system. 100. Apart from this, the concept of mental cruelty cannot remain static; it is bound to change with the passage of time, impact of modern culture through print and electronic media and value system, etc. etc. What may be mental cruelty now may not remain a mental cruelty after a passage of time or vice versa. There can never be any straitjacket formula or fixed parameters for determining mental cruelty in matrimonial matters. The prudent and appropriate way to adjudicate the case would be to evaluate it on its peculiar facts and circumstances….” – “Making unfounded indecent defamatory allegations against the spouse or his or her relatives in the pleadings, filing of complaints or issuing notices or news items which may have adverse impact on the business prospect or the job of the spouse and filing repeated false complaints and cases in the court against the spouse would, in the facts of a case, amount to causing mental cruelty to the other spouse.” —That apart, the communications, after the decree for restitution of conjugal rights, indicate the attitude of the wife as if she is playing a game of Chess. The launching of criminal prosecution can be perceived from the spectrum of conduct. The learned Magistrate has recorded the judgment of acquittal ( CRUELTY ESTABLISHED) -[Dr. (Mrs.) Malathi Ravi, M.D. Versus Dr. B.V. Ravi, M.D[June 30, 2014]
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DIGNITY-Dignity, as has been held in Charu Khurana v. Union of India, (2015) 1 SCC 192, is the quintessential quality of a personality, for it is a highly cherished value. It is also clear that liberty of the petitioner was curtailed in violation of law. The freedom of an individual has its sanctity. When the individual liberty is curtailed in an unlawful manner, the victim is likely to feel more anguished, agonised, shaken, perturbed, disillusioned and emotionally torn. It is an assault on his/her identity. The said identity is sacrosanct under the Constitution. Therefore, for curtailment of liberty, requisite norms are to be followed. Fidelity to statutory safeguards instil faith of the collective in the system. It does not require wisdom of a seer to visualise that for some invisible reason, an attempt has been made to corrode the procedural safeguards which are meant to sustain the sanguinity of liberty. In Mehmood Nayyar Azam v. State of Chhattisgarh[ (2012) 8 SCC 1 ], the Court has observed that the word “torture” in its denotative concept includes mental and psychological harassment. It has the potentiality to cause distress and affects the dignity of a citizen.
Document-The term “document” referred in Section 91 of the Cr.P.C. has been taken from Section 3 of the Indian Evidence Act, which reads as under:
“Documents” means any matter expressed of described upon any substance by means of letters, figures or marks, or by more than one of those means, intended to be used, or which may be used, for the purpose of recording that matter.
From a reading of Section 91 of the Cr.P.C. and the term “document” as per Section 3 of the Indian Evidence Act, it is clear that the document means legally permissible document either in the shape of original document or in the shape of copy duly authenticated. It is apparent that the photocopy cannot be termed as document as neither it is original nor it is authenticated without any person authenticating the same. More the reason that the photocopy cannot take the place of original document for proving any particular fact or circumstance. Thus, the summoning of the documents under Section 91 of the Cr.P.C. is summoning of the original documents.
DESERTION– in Savitri Pandey v. Prem Chandra Pandey5 has ruled thus:- “Desertion”, for the purpose of seeking divorce under the Act, means the intentional permanent forsaking and abandonment of one spouse by the other without that other’s consent and without reasonable cause. In other words it is a total repudiation of the obligations of marriage. Desertion is not the withdrawal from a place but from a state of things. Desertion, therefore, means withdrawing from the matrimonial obligations i.e. not permitting or allowing and facilitating the cohabitation between the parties. The proof of desertion has to be considered by taking into consideration the concept of marriage which in law legalises the sexual relationship between man and woman in the society for the perpetuation of race, permitting lawful indulgence in passion to prevent licentiousness and for procreation of children. Desertion is not a single act complete in itself, it is a continuous course of conduct to be determined under the facts and circumstances of each case. After referring to a host of authorities and the views of various authors, this Court in Bipinchandra Jaisinghbai Shah v. Prabhavati1 held that if a spouse abandons the other in a state of temporary passion, for example, anger or disgust without intending permanently to cease cohabitation, it will not amount to desertion. In the said case, reference was also made to Lachman Utamchand Kirpalani’s case wherein it has been held that desertion in its essence means the intentional permanent forsaking and abandonment of one spouse by the other without that other’s consent, and without reasonable cause. For the offence of desertion so far as the deserting spouse is concerned, two essential conditions must be there (1) the factum of separation, and (2) the intention to bring cohabitation permanently to an end (animus deserendi). Similarly two elements are essential so far as the deserted spouse is concerned: (1) the absence of consent, and (2) absence of conduct giving reasonable cause to the spouse leaving the matrimonial home to form the necessary intention aforesaid. For holding desertion as proved the inference may be drawn from certain facts which may not in another case be capable of leading to the same inference; that is to say the facts have to be viewed as to the purpose which is revealed by those acts or by conduct and expression of intention, both anterior and subsequent to the actual acts of separation. LINK
DOUBT REASONABLE– This Court has in a recent judgment in the case of Yogesh Singh Vs. Mahabeer Singh & Ors., AIR 2016 SC 5160 = 2016 (10) JT 332, reiterated the said principle in the following words: “It is a cardinal principle of criminal jurisprudence that the guilt of the accused must be proved beyond all reasonable doubts. However, the burden on the prosecution is only to establish its case beyond all reasonable doubt and not all doubts. Here, it is worthwhile to reproduce the observations made by Venkatachaliah, J., in State of U.P. Vs. Krishna Gopal and Anr., (1988) 4 SCC 302: ‘25. … Doubts would be called reasonable if they are free from a zest for abstract speculation. Law cannot afford any favourite other than truth. To constitute reasonable doubt, it must be free from an overemotional response. Doubts must be actual and substantial doubts as to the guilt of the accused person arising from the evidence, or from the lack of it, as opposed to mere vague apprehensions. A reasonable doubt is not an imaginary, trivial or a merely possible doubt; but a fair doubt based upon reason and common sense. It must grow out of the evidence in the case. The concept of probability, and the degrees of it, cannot obviously be expressed in terms of units to be mathematically enumerated as to how many of such units constitute proof beyond reasonable doubt. There is an unmistakable subjective element in the evaluation of the degrees of probability and the quantum of proof. Forensic probability must, in the last analysis, rest on a robust common sense and, ultimately on the trained intuitions of the judge. While the protection given by the criminal process to the accused persons is not to be eroded, at the same time, uninformed legitimization of trivialities would make a mockery of administration of criminal justice.”Machindra vs. Sajjan Galpha Rankhamb & Ors. [19.04.2017]LINK
DUTY OF JUDGE-As we discharge our responsibility in deciding the instant criminal appeal, we proceed to apply principles of law, and draw inferences. For, that is our job. We are trained, not to be swayed by mercy or compassion. We are trained to adjudicate without taking sides, and without being mindful of the consequences. We are required to adjudicate on the basis of well drawn parameters. We have done all that. Despite thereof, we feel crestfallen, heartbroken and sorrowful. We could not serve the cause of justice, to an innocent child. We could not even serve the cause of justice, to her immediate family. The members of the family of Gomi must never have stopped cursing
themselves, for not adequately protecting their child from a prowler, who had snatched an opportunity to brutalise her, during their lapse in attentiveness[State of Gujarat Versus Kishanbhai Etc. January 7, 2014 ]
DYING DECLARATION– This Court in Atbir v. Government of NCT of Delhi has summarized the principles laid down earlier, as under:
“(i) Dying declaration can be the sole basis of conviction if it inspires the full confidence of the court.
(ii) The court should be satisfied that the deceased was in a fit state of mind at the time of making the statement and that it was not the result of tutoring, prompting or imagination.
(iii) Where the court is satisfied that the declaration is true and voluntary, it can base its conviction without any further corroboration. (iv) It cannot be laid down as an absolute rule of law that the dying declaration cannot form the sole basis of conviction unless it is corroborated. The rule requiring corroboration is merely a rule of prudence.
(v) Where the dying declaration is suspicious, it should not be acted upon without corroborative evidence.
(vi) A dying declaration which suffers from infirmity such as the deceased was unconscious and could never make any statement cannot form the basis of conviction.
(vii) Merely because a dying declaration does not contain all the details as to the occurrence, it is not to be rejected.
(viii) Even if it is a brief statement, it is not to be discarded.
(ix) When the eyewitness affirms that the deceased was not in a fit and conscious state to make the dying declaration, medical opinion cannot prevail.
(x) If after careful scrutiny, the court is satisfied that it is true and free from any effort to induce the deceased to make a false statement and if it is coherent and consistent, there shall be no legal impediment to make it the basis of conviction, even if there is no corroboration.”[Reafirmed in STATE (GOVERNMENT OF NCT OF DELHI) VERSUS NITIN GUNWANT SHAH September 16, 2015]
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FAMILY SETTLEMENT-As discussed earlier, when the terms of the family settlement/arrangement between the parties have been reduced to writing, it has to be registered.There is no provision of law requiring family settlements to be reduced to writing and registered, though when reduced to writing the question of registration may arise. Binding family arrangements dealing with immovable property worth more than rupees hundred can be made orally and when so made, no question of registration arises. If, however, it is reduced to the form of writing with the purpose that the terms should be evidenced by it, it required registration and without registration it is inadmissible; but the said family arrangement can be used as corroborative piece of evidence for showing or explaining the conduct of the parties.
GOVERNMENT OF INDIA-In its narrower sense, Government of India is only the executive limb of the State. It comprises a group of people, the administrative bureaucracy that controls the executive functions and powers of the State at a given time. Different governments, in continuous succession, serve the State and provide the means through which the executive power of the State is employed. The expression “Government of India” is surely not used in this narrow and restricted sense in Section 121. In our considered view, the expression “Government of India” is used in Section 121 to imply the Indian State, the juristic embodiment of the sovereignty of the country that derives its legitimacy from the collective will and consent of its people. The use of the phrase “Government of India” to signify the notion of sovereignty is consistent with the principles of Public International Law, wherein sovereignty of a territorial unit is deemed to vest in the people of the territory and exercised by a representative government.(para545) LINK
INCLUDE, INCLUDES, INCLUDING– Lord Watson in Dilworth v. Stamps Commr. made the following classic statement: (AC pp. 105-06) “… The word „include‟ is very generally used in interpretation clauses in order to enlarge the meaning of words or phrases occurring in the body of the statute; and when it is so used these words or phrases must be construed as comprehending, not only such things as they signify according to their natural import, but also those things which the interpretation clause declares that they shall include. But the word „include‟ is susceptible of another construction, which may become imperative, if the context of the Act is sufficient to shew that it was not merely employed for the purpose of adding to the natural significance of the words or expressions defined. It may be equivalent to „mean and include‟, and in that case it may afford an exhaustive explanation of the meaning which, for the purposes of the Act, must invariably be attached to these words or expressions. LINK
In State of Bombay -vs- Hospital Mazdoor Sabha AIR 1960 SC 610, the Supreme Court emphasized that the term “includes” denotes legislative intent to widen the ambit and scope of the thing defined, to include other objects or things which do not fall within the ordinary scope of the expression: …It is obvious that the words used in an inclusive definition denote extension and cannot be treated as restricted in any sense. Where we are dealing with an inclusive definition, it would be inappropriate to put a restrictive interpretation upon terms of wider denotation…” Similar instances of the term “include” being held to widen the scope of a definition can be found in decisions reported as Commissioner Income Tax -vs- Taj Mahal Hotel, Secunderabad AIR 1972 SC 168; Scientific Engineering House Pvt. Ltd. -vs- Commissioner of Income Tax AIR 1986 SC 338 and Lucknow Development Authority – vs- M.K.Gupta 1994 (1) SCC 243
MAINTENANCE (wife is a medical practitioner )-It is the duty of the Court also to see that a minor son should not live in discomfort or should be deprived of requisite modern education. We are conscious, the appellant is earning but that does not necessarily mean that the father should be absolved of his liability. Regard being had to the social status and strata and the concept of effective availing of education we fix a sum of Rs.25,00,000/- (twenty five lacs) excluding the amount already paid towards the maintenance and education of the son.LINK
MISCONDUCT(financial institution)-The very discipline of an organization and especially financial institution where money is deposited of several depositors for their benefit is dependent upon each of its employee, who acts/operates within the allotted sphere as custodian of such deposit. Acting beyond one’s authority by itself is a breach of discipline and thus constitutes a misconduct rendering the delinquent to suffer the adverse orders (see some observations in Disciplinary Authority-cum-Regional Manager & Ors. Vs. Nikunja Bihari Patnaik, 1996(9) SCC 69). Ratified in [Mihir Kumar Hazara Choudhury VERSUS Life Insurance Corpn. & Anr]
PLENARY POWER OF SUPREME COURT-In exercise of plenary powers of Supreme Court under Article 142 of the Constitution of India, in apeculiar facts of a case can do complete justice and in the larger public interest[Shri Gangajali Education Society Versus
Union of India and Ors.31.08.2017]
POLICE DIARY – USE OF DIARY BY ACCUSED RECEIVED THROUGH RTI-It is not open for the accused to produce certain pages of police diary obtained by him under the provisions of Right to Information Act for the purpose of contradicting the police officer LINK
POLICE INVESTIGATION– Under the Scheme of the CrPC, any investigating agency (normally the police) is bound to investigate by following the procedure prescribed therein once it receives either information regarding the commission of a cognizable offence or an order from a Magistrate to investigate into the allegation of the occurrence of a non-cognizable offence and submit a report under Section 173. Section 173(2)(i)(d) inter alia stipulates that the report should contain a statement:
“Whether any offence appears to have been committed and if so by whom?”
The conclusions reached by the police after investigation into the above two questions are required to be scrutinized by a competent Court. It is only after the Court is satisfied that the evidence collected by the investigating agency is sufficient in law to punish the accused, such accused can be punished. Taking cognizance of an offence by the Court is one of the initial steps in the process. Thereafter, the investigating agency is required to collect evidence (investigate) and place the same before the Court under Section 173 CrPC
PROCEEDING VS JUDICIAL PROCEEDING:- Section 193 IPC, refers to a judicial proceeding, Section 195 CrPC refers to a proceeding in any court; it does not say a judicial proceeding in any court. An offence which is treated as more serious by the first paragraph of Section 193 IPC because it is an offence committed during the course of a judicial proceeding should be held to be an offence committed in any proceeding in any court for the purpose of Section 195(1)(b) CrPC. Section 193 IPC, and since they are classed under the first paragraph of the said section, they attract the protection of Section 195(1)(b) CrPC. Lalji Haridas vs. State of Maharashtra, (1964) 6 SCR 700 Ratified[AMIT VASHISTHA VERSUS SURESH AND ANOTHER 31 AUG 2017]
PROMOTION IN SERVICE-The post of JWO[Airman] is admittedly a select promotion post. The appellant, therefore, cannot succeed merely on the basis of his claim of vast experience, knowledge and performance unless he fulfills the eligibility criteria including medical fitness for select promotion. [ SGT Chaman Lal Versus Union of India and Others …..Respondents July 25, 2017]
Public policy – Renusagar Power Plant Co Ltd. v. General Electric Co., (1994) Supp (1) SCC 644, where “public policy” will now include only two of the three things set out therein, viz., “fundamental policy of Indian law” and “justice or morality”. The ground relating to “the interest of India” no longer obtains. “Fundamental policy of Indian law” is now to be understood as laid down in Renusagar (supra). “Justice or morality” has been tightened and is now to be understood as meaning only basic notions of justice and morality i.e. such notions as would shock the conscience of the Court as understood in Associate Builders v. Delhi Development Authority, (2015) 3 SCC 49[HRD CORPORATION (MARCUS OIL AND CHEMICAL DIVISION) VERSUS GAIL (INDIA) LIMITED (FORMERLY GAS AUTHORITY OF INDIA LTD.)
RENEWAL – the words ” renewal or continuance of a lease clearly suggest that there must be a renewal or continuance of a subsisting lease. They would not cover an executory contract to grant a lease. Giving the words ” in respect of ” their widest meaning, viz., relating to ” or ” with reference to ” it is plain that this relationship must be predicated of the grant, renewal or continuance of a lease and unless a lease comes into existence simultaneously or near about the time that the money is received it cannot be said that the receipt was ” in respect of ” the grant of a lease. The relationship of landlord and tenant does not come into existence till a lease comes into existence, in other words, there is no relationship of landlord and tenant until there is a demise of the property which is capable of being taken possession of. LINK
Recognition and Affiliation.The High Court noted that the purpose of affiliation is to enable andpermit an institution to send students to participate in the publicexamination conducted by the examining body and secure thequalification for Degrees, Diplomas and Certificates. On the otherhand, the purpose of recognition is to grant licence to start a courseor training in the concerned stream of education. The High Court then relied on the decision in the case of State of Madhya Pradesh 2 (2010) 12 SCC 6093 (2011) 4 SCC 527 LINK
RES JUDICATA– The scope of application of doctrine of res judicata is in question. The literal meaning of “res” is “everything that may form an object of rights and includes an object, subject-matter or status” and “res judicata” literally means “a matter adjudged a thing judicially acted upon or decided; a thing or matter settled by judgments”. “Res judicata pro veritate accipitur” is the full maxim which has, over the years, shrunk to mere “res judicata”, which means that res judicata is accepted for truth The doctrine contains the rule of conclusiveness of the judgment which is based partly on the maxim of Roman jurisprudence “interest reipublicae ut sit finis litium” (it concerns the State that there be an end to law suits) and partly on the maxim “nemo debet bis vexari pro uno et eadem causa” (no man should be vexed twice over for the same cause). Even an erroneous decision on a question of law attracts the doctrine of res judicata between the parties to it. The correctness or otherwise of a judicial decision has no bearing upon the question whether or not it operates as res judicata. (Vide: Shah Shivraj Gopalji v. ED-, Appakadh Ayiassa Bi & Ors., AIR 1949 PC 302; and Mohanlal Goenka v. Benoy Kishna Mukherjee & Ors., AIR 1953 SC 65). In Smt. Raj Lakshmi Dasi & Ors. v. Banamali Sen & Ors., AIR 1953 SC 33, this Court while dealing with the doctrine of res judicata referred to and relied upon the judgment in Sheoparsan Singh v. Ramnandan Singh, AIR 1916 PC 78 wherein it had been observed as under: “…….. the rule of res judicata, while founded on ancient precedents, is dictated by a wisdom which is for all time….. Though the rule of the Code may be traced to an English source, it embodies a doctrine in no way opposed to the spirit of the law as expounded by the Hindu commentators. Vijnanesvara and Nilakantha include the plea of a former judgment among those allowed by law, each citing for this purpose the text of Katyayana, who describes the plea thus: ‘If a person though defeated at law, sue again, he should be answered, ‘‘you were defeated formerly”. This is called the plea of former judgment.’… And so the application of the rule by the courts in India should be influenced by no technical considerations of form, but by matter of substance within the limits allowed by law’’ 26. This Court in Satyadhyan Ghosal & Ors. v. Smt. Deorajin Debi & Anr., AIR 1960 SC 941 explained the scope of principle of res-judicata observing as under: “7. The principle of res judicata is based on the need of giving a finality to judicial decisions. What it says is that once a res is judicata, it shall not be adjudged again. Primarily it applies as between past litigation and future litigation, When a matter – whether on a question of fact or a question of law – has been decided between two parties in one suit or proceeding and the decision is final, either because no appeal was taken to a higher court or because the appeal was dismissed, or no appeal lies, neither party will be allowed in a future suit or proceeding between the same parties to canvass the matter again. This principle of res judicata is embodied in relation to suits in S. 11 of the Code of Civil Procedure; but even where S. 11 does not apply, the principle of res judicata has been applied by courts for the purpose of achieving finality in litigation. The result of this is that the original court as well as any higher court must in any future litigation proceed on the basis that the previous decision was correct.” A similar view has been re-iterated by this court in Daryao & Ors. v. The State of U.P. & Ors., AIR 1961 SC 1457; Greater Cochin Development Authority v. Leelamma Valson & Ors., AIR 2002 SC 952; and Bhanu Kumar Jain v. Archana Kumar & Anr., AIR 2005 SC 626. The Constitution Bench of this Court in Amalgamated Coalfields Ltd. & Anr. v. Janapada Sabha Chhindwara & Ors., AIR 1964 SC 1013, considered the issue of res judicata applicable in writ jurisdiction and held as under: “…Therefore, there can be no doubt that the general principle of res judicata applies to writ petitions filed under Article 32 or Article 226. It is necessary to emphasise that the application of the doctrine of res judicata to the petitions filed under Art. 32 does not in any way impair or affect the content of the fundamental rights guaranteed to the citizens of India. It only seeks to regulate the manner in which the said rights could be successfully asserted and vindicated in courts of law. In Hope Plantations Ltd. v. Taluk Land Board, Peermade & Anr., (1999) 5 SCC 590, this Court has explained the scope of finality of the judgment of this Court observing as under,“One important consideration of public policy is that the decision pronounced by courts of competent jurisdiction should be final, unless they are modified or reversed by the appellate authority and other principle that no one should be made to face the same kind of litigation twice ever because such a procedure should be contrary to consideration of fair play and justice. Rule of res judicata prevents the parties to a judicial determination from litigating the same question over again even though the determination may even be demonstratedly wrong. When the proceedings have attained finality, parties are bound by the judgment and are estopped from questioning it.” (See also: Burn & Co., Calcutta v. Their Employees, AIR 1957 SC 38; G.K. Dudani & Ors. v. S.D. Sharma & Ors., AIR 1986 SC 1455; and Ashok Kumar Srivastav v. National Insurance Co. Ltd. & Ors., AIR 1998 SC 2046). 29. A three-Judge Bench of this court in The State of Punjab v. Bua Das Kaushal, AIR 1971 SC 1676 considered the issue and came to the conclusion that if necessary facts were present in the mind of the parties and had gone into by the court, in such a fact-situation, absence of specific plea in written statement and framing of specific issue of res judicata by the court is immaterial. A similar view has been re-iterated by this court in Union of India v. Nanak Singh, AIR 1968 SC 1370 observing as under: “This Court in Gulabchand Chhotalal v. State of Gujarat, AIR 1965 SC 1153 observed that the provisions of Section 11 of the Code of Civil Procedure are not exhaustive with respect to all earlier decision operating as res judicata between the same parties on the same matter in controversy in a subsequent regular suit, and on the general principle of res judicata, any previous decision on a matter in controversy, decided after full contest or after affording fair opportunity to the parties to prove their case by a Court competent to decide it, will operate as res judicata in a subsequent regular suit. It is not necessary that the Court deciding the matter formerly be competent to decide the subsequent suit or that the former proceeding and the subsequent suit have the same subject-matter. There is no good reason to preclude, such decisions on matters in controversy in writ proceedings under Article 226 or Article 32 of the Constitution from operating as res judicata in subsequent regular suits on the same matters in controversy between the same parties and thus to give limited effect to the principle of the finality of decisions after full contest.” It is a settled legal proposition that the ratio of any decision must be understood in the background of the facts of that case and the case is only an authority for what it actually decides, and not what logically follows from it. “The court should not place reliance on decisions without discussing as to how the factual situation fits in with the fact-situation of the decision on which reliance is placed. Even otherwise, a different view on the interpretation of the law may be possible but the same should not be accepted in case it has the effect of unsettling transactions which had been entered into on the basis of those decisions, as reopening past and closed transactions or settled titles all over would stand jeopardized and this would create a chaotic situation which may bring instability in the society. In Madan Mohan Pathak & Anr. v. Union of India & Ors., AIR 1978 SC 803, a seven-Judge Bench of this Court dealt with a case wherein the question arose as to whether the order passed by the Calcutta High Court issuing writ of mandamus directing the Life Insurance Corporation of India (hereinafter referred to as L.I.C.) to pay cash bonus for the year 1975-76 to its class 3 and 4 employees in terms of the settlement between the parties was allowed to become final. Immediately after the pronouncement of the judgment, the Parliament enacted the LIC (Modification of Settlement) Act, 1976. The appeal filed against the judgment of Calcutta High Court was not pressed by LIC and the said judgment was allowed to become final. This Court rejected the contention of the LIC that in view of the intervention of legislation, it was not liable to meet the liability under the said judgment. The Court held that there was nothing in the Act which nullifies the effect of the said judgment or which could set at naught the judgment or take away the binding character of the said judgment against LIC. Thus, the LIC was liable to make the payment in accordance with the said judgment and it could not be absolved from the obligation imposed by the said judgment. This Court, while considering the binding effect of the judgment of this Court, in State of Gujarat & Anr. v. Mr. Justice R.A. Mehta (Retd.) & Ors., AIR 2013 SC 693, held: “There can be no dispute with respect to the settled legal proposition that a judgment of this Court is binding,…..It is also correct to state that, even if a particular issue has not been agitated earlier, or a particular argument was advanced, but was not considered, the said judgment does not lose its binding effect, provided that the point with reference to which an argument is subsequently advanced, has actually been decided. The decision therefore, would not lose its authority, “merely because it was badly argued, inadequately considered or fallaciously reasoned”. (Vide: Smt. Somavanti & Ors. v. The State of Punjab & Ors., AIR 1963 SC 151; Ballabhdas Mathuradas Lakhani & Ors. v. Municipal Committee, Malkapur, AIR 1970 SC 1002; Ambika Prasad Mishra v. State of U.P. & Ors., AIR 1980 SC 1762; and Director of Settlements, A.P. & Ors. v. M.R. Apparao & Anr., AIR 2002 SC 1598).” The issue can be examined from another angle. Explanation to Order XLVII, Rule 1 of Code of Civil Procedure, 1908 (hereinafter referred to as the ‘CPC’) provides that if the decision on a question of law on which the judgment of the court is based, is reversed or modified by the subsequent decision of a superior court in any other case, it shall not be a ground for the review of such judgment. Thus, even an erroneous decision cannot be a ground for the court to undertake review, as the first and foremost requirement of entertaining a review petition is that the order, review of which is sought, suffers from any error apparent on the face of the order and in absence of any such error, finality attached to the judgment/order cannot be disturbed. (Vide: Rajendra Kumar & Ors. v. Rambhai & Ors., AIR 2003 SC 2095)LINK
REGULATE-The word `regulate’ is difficult to define as having any precise meaning. It is a word of broad import, having a broad meaning and may be very comprehensive in scope. Thus, it may mean to control or to subject to governing principles. Regulate has different set of meaning and must take its colour from the context in which it is used having regard to the purpose and object of the legislation. The word `regulate’ is elastic enough to include issuance of directions etc. (Vide: K. Ramanathan v. State of Tamil Nadu & Anr., AIR 1985 SC 660; and Balmer Lawrie & Company Limited & Ors. Partha Sarathi Sen Roy & Ors., (2013) 8 SCC 345)LINK
RIGHT TO PRIVACY- The right to privacy is protected as an intrinsic part of the right to life and personal liberty under Article 21 and as a part of the freedoms guaranteed by Part III of the Constitution. [JUSTICE K S PUTTASWAMY (RETD.) AND ANR. VERSUS UNION OF INDIA AND ORS AUGUST 24, 2017 ]
SUMMONING AN ACCUSED- Sonu Gupta v. Deepak Gupta and Ors. (2015) 3 SCC 424, 426 held as follows:
“At the stage of cognizance and summoning the Magistrate is required to apply his judicial mind only with a view to take cognizance of the offence to find out whether a prima facie case is made out for summoning the accused persons. At this stage, the Magistrate is not required to consider the defence version or materials or arguments nor he is required to evaluate the merits of the materials or evidence of the complainant, because the Magistrate must not undertake the exercise to find out at this stage whether the materials would lead to conviction or not”[RAKHI MISHRA Versus STATE OF BIHAR & ORS August 24, 2017]
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