LT March-2015

GENERAL
ESCALATION OF PRICE CANNOT BE A VALID GROUND

TO DENY RELIEF OF SPECIFIC PERFORMANCE
A . RAMALINGAM (THE RESPONDENT-FIRST

DEFENDANT) IS THE absolute owner of 1/3rd
undivided share in the property bearing no. 43, Mission
defendant he has admitted that he is the owner of 1/3rd
share in the suit property. He has also admitted that the
2nd defendant is the brother and registered power of
Road, Bangalore and his elder brother-second defendant attorney holder of the first defendant. But he pleaded
is his power of attorney holder. It is the case of the that the power of attorney was given by him to the
plaintiff that on 25.6.1979, the second defendant- second defendant only for the limited purpose of looking
respondent as registered owner of attorney holder after and managing the suit property. He denied that
entered into an agreement to sell 1/3rd share in the suit there was an agreement to sell the suit property in favour
property to the appellant-plaintiff for consideration of of the plaintiff and also denied of having received
Rs. 40,000/- and received advance of Rs. 5,000/-. As per advance amount of Rs. 5000/-. Respondent first
the aforesaid registered agreement, the balance defendant alleged that the said agreement was prepared
consideration was to be paid on or before 30.12.1980 and by his elder brother by misusing the power of attorney
the parties to the agreement had to take necessary steps and second defendant had acted on the ill-advice of the
for obtaining permission from the competent authority plaintiff, to play fraud on him. He contended that the suit
under the Urban Land (Ceiling and Regulation) Act. property was worth more than Rs. 3,00,000/- on the date
Plaintiff's further case is that he paid the entire sale of the said agreement and he had sent a registered notice
consideration to the second defendant who received the to the plaintiff on 1.10.1983 denying the execution of the
same on behalf of the first defendant. It is contended said agreement.
that the plaintiff had been always ready and willing to It has been further alleged by the respondent-first
perform his part of the contract and that the plaintiff has defendant that one D. Narendra had filed a suit O.S. No.
been requesting the defendants to take necessary steps 767/78, renumbered as O.S. 2762/80, seeking partition of
to obtain permission from the Urban Land Ceiling 1/3rd share in the suit scheduled property. Appellant-
Authority. Since the defendants failed to take necessary plaintiff herein was the 4th defendant in the said suit
steps, the plaintiff issued legal notice to the defendants and he had filed his written statement on 27.2.1979,
on 5.3.1980 and 25.5.1980 calling upon the defendants wherein he pleaded that he had agreed to purchase the
to complete the sale in favour of the plaintiff and to suit property. He contended that the same goes to show
perform their part of the contract. The defendants sent that the plaintiff had planned to snatch the property and
reply to notice on 4.10.1980 wherein they repudiated the that the agreement in question came into existence in
agreement in question. As averred, the plaintiff has been collusion with the second defendant.
in possession of the undivided share of the defendants The respondent-defendant has further pleaded that the
in the schedule property in pursuance of the above plaintiff occupied the premises in question as a tenant
agreement for sale. Since the defendants failed to execute by virtue of allotment order in HRC (ACC) 306/1970 and
the sale deed, the plaintiff filed a suit for specific that thereafter he has sublet the portion of the suit
performance praying for a direction to the defendants property to various persons. It is further stated that the
to execute the sale deed in respect of 1/3rd share in the plaintiff has not been paying rent to the defendant in
suit property. proportionate to the income that he derives by such
In the suit, the defendants 1 and 2 have filed separate subletting. The defendant alleged that he had no
written statements. In the written statement filed by first intention to sell the full property to any person much
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GENERAL
less to the plaintiff, and he wants to retain the suit who was examined as DW-1, has admitted the signatures
property. of defendant no. 2 in the receipts produced by the
The second defendant, elder brother of the respondent plaintiff, which are at Ex. P8(a) to P8(g). The trial court
and his power of attorney holder, by way of separate came to the conclusion that the defendant have received
written statement denied that the agreement for sale in the amount of consideration and the plaintiff performed
question was executed with the consent of the first his part of the agreement by paying full consideration
defendant. According to him, the plaintiff obtained the and was always ready and willing to get the sale deed
said agreement by playing fraud and giving assurance executed. However, the defendants have not performed
that he would get certain benefits. He also pleaded in their part of the agreement, have evaded to execute the
his written statement that one D. Narendra, who had sale deed in favour of the plaintiff. Therefore, trial court
alleged to have purchased 1/3rd share in the suit property came to the conclusion that it is a fit case to grant specific
from Thyagarajan, had filed a suit being O.S. 767/78 performance of agreement and to direct defendant no. 1
seeking decree of partition and separate possession. In to execute the sale deed in favour of the plaintiff.
the said suit, the plaintiff stated that he is holding Aggrieved by the judgement and decree, the respondent
agreement from Thyagarajan to purchase the property. defendant preferred appeal before the High Court.
Thyagarajan is the son of the second defendant, who in By judgement dated 3.2.2004, learned Single Judge of
good faith that his son would retain his 1/3rd share and the High Court partly allowed the appeal modifying the
to save the property obliged the plaintiff to execute the judgement and decree of the trial court by refusing to
sale agreement and not with an intention to sell the grant specific performance and directing the first
property. It is pleaded that the plaintiff had promised that defendant to pay back the consideration amount with
he would not enforce the sale agreement and it is only interest at 12% from the date of agreement till the date
to see that the suit filed by D. Narendra is dismissed. of payment after deducting rent payable to him by the
The second defendant contended that the receipt issued plaintiff in respect of 1/3rd share.
by him to the plaintiff were not towards payment of Aggrieved by the aforesaid decision of the High Court,
rents. Moreover, he had not issued any receipt for petitioner approached the Supreme Court preferring an
having received money towards sale consideration. appeal by special leave being Civil Appeal No. 6956 of
On consideration of entire facts and evidence brought 2004. Supreme Court by judgement dated 4.3.2011 in that
on record, the trial court decreed the suit directing the appeal titled as H. Siddiqui v. A. Ramalingam [2011 (4)
first defendant to execute the sale-deed in favour of the SCC 240], set aside the judgement and order of the High
plaintiff in respect of 1/3rd share in the suit schedule Court and remanded back the matter to the High Court
property. The trial court held that defendant no. 1 has to decide the same afresh in accordance with law .
admitted to have executed the power of attorney (Ex. Supreme Court in the remand order observed as under:
P22) and it clearly states that the second defendant was 20. The High Court failed to realize that it was
authorized to sell the suit property. Further, defendant deciding the first appeal and that it had to be
has utterly failed to prove that the plaintiff had obtained decided strictly in adherence with the
the agreement for sale in question by playing fraud. On provisions contained in Order 41 Rule 31 of the
the contrary, the evidence clearly proves that the first Code of Civil Procedure, 1908 (CPC) and once
defendant had authorized the second defendant to sell the issue of the alleged power of attorney was
the suit property to the plaintiff and that the second also raised as is evident from Point (a)
defendant has agreed to sell the suit property to the formulated by the High Court, the Court should
plaintiff having full authority to do so. Defendant no. 1, not have proceeded to Point (b) without dealing
108 I Lawteller I March 2015 www.lawteller.com

GENERAL
with the relevant issues involved in the case, the event of any default on the part of the
particularly, as to whether the power of attorney vendors in completing the sale the earnest
had been executed by the respondent in favour money paid herewith shall be refunded to the
of his brother enabling him to alienate his share purchasers together with a like amount of Rs.
in the property. 5,000/- (Rupees five thousand only) was a
21. The said provisions provide guidelines for liquidated damages for breach of contract."
the appellate court as to how the court has to Thus, in case of non-execution of the sale deed,
proceed and decide the case. The provisions the appellant could get the earnest money with
should be read in such a way as to require that damages.
the various particulars mentioned therein 24. So far as the issues of inadequate
should be taken into consideration. Thus, it consideration and rise in price are concerned,
must be evident from the judgement of the both the parties have argued the same at length
appellate court that the court has properly and placed reliance on a large number of
appreciated the facts/evidence, applied its mind judgements of this Court, including: Chand Rani
and decided the case considering the material (Smt.) (dead) by Lrs. v. Kamal Rani (Smt.) (dead)
on record. It would amount to substantial by Lrs. (supra); Nirmala Anand v. Advent
compliance with the said provisions if the Corporation (P) Ltd. & Ors. (supra); P. D'Souza
appellate court's judgement is based on the v. Shondrilo Naidu (supra); Jai Narain
independent assessment of the relevant Parasrampuria (dead) & Ors. v. Pushpa Devi
evidence on all important aspects of the matter Saraf & Ors. [2006 (7) SCC 756]; Pratap
and the findings of the appellate court are well Lakshman Muchandi & Ors. v . Shamlal
founded and quite convincing. It is mandatory Uddavadas Wadhwa & Ors. (supra).
for the appellate court to independently assess 25. In view of the above, as we are of the
the evidence of the parties and consider the considered opinion that the courts below have
relevant points which arise for adjudication and not proceeded to adjudicate upon the case
the bearing of the evidence on those points. strictly in accordance with law, we are not
Being the final court of fact, the first appellate inclined to enter into the issue of inadequate
court must not record mere general expression consideration and rise in price. However, the
of concurrence with the trial court judgement judgement impugned cannot be sustained in
rather it must give reasons for its decision on the eyes of law.
each point independently to that of the trial On remand, High Court considered the matter afresh and
court. Thus, the entire evidence must be allowed the appeal of first defendant and set aside the
considered and discussed in detail. Such judgement and decree of the trial court, dismissing the
exercise should be done after formulating the suit of the plaintiff.
points for consideration in terms of the said Against the judgement of the High Court wife of the
provisions and the court must proceed in plaintiff filed special leave petition. The Supreme court
adherence to the requirements of the said accepted the appeal, set aside the judgement of the High
statutory provisions. Court and decree of the trial court was affirmed.
xxxxx
23. More so, none of the courts below had taken The operative part of the judgement read as under :
into consideration Clause 11 of the agreement Although it was pleaded by defendant no. 1 that the
dated 30.6.1979 which reads as under. "11. In power of attorney was given to defendant no. 2 for limited

GENERAL
purpose of managing the property, the said power of discretion in their favour by refusing to grant a decree
attorney was not produced in the Court. DW-1 did not for specific performance. Further, if a party to a lis does
produce the original power of attorney to prove his case not disclose all material facts truly and fairly but states
that the second defendant, his elder brother, was only them in distorted manner and mislead the Court, the
authorized to manage the property. It is the plaintiff, who Court has inherent power to exercise its discretionary
produced the Xerox copy of the registered power of jurisdiction in order to prevent abuse of the process of
attorney, which was shown to the DW-1 during cross- law.
examination, who admitted the signature in the power TTTTTTT
of attorney. All these relevant pieces of evidence have It is well settled that remedy for specific performance is
not been appreciated by the High Court in its right an equitable remedy. The Court while granting decree
perspective. Instead of drawing adverse inference of specific performance exercises its discretionary
against the defendant, in not producing the original jurisdiction. Section 20 of the Specific Relief Act
power of attorney, which was in their power and specifically provides that Court's discretion to grant
possession, the High court has committed grave error decree of specific performance is discretionary but not
in holding that the power of attorney has not been arbitrary. Discretion must be exercised in accordance
proved as required under Section 65 and 66 of the with sound and reasonable judicial principles.
Evidence Act. In our view, when the Xerox copy of power TTTTTTT
of attorney produced by the plaintiff in evidence and Subsequent rise in price will not be treated as a
the signature and the contents of the said power of hardship entailing refusal of the decree for specific
attorney were admitted by the defendant, there was no performance. Rise in price is a normal change of
question of proving the said document as required circumstances and, therefore, on that ground a decree
under the Evidence Act. The judgement of reversal for specific performance cannot be reversed.
passed by the High Court by coming to the aforesaid TTTTTTT
conclusion is wholly perverse and contrary to law. A However, the court may take notice of the fact that there
certified copy of the power of attorney is no record and has been an increase in the price of the property and
it falsifies the case of the defendants/respondent considering the other facts and circumstances of the
undisputedly. case, this Court while granting decree for specific
TTTTTTT performance can impose such condition which may to
Although defendant no. 2 held a registered power of some extent compensate the defendant-owner of the
attorney on behalf of defendant no. 1 to sell and dispose property.
of the property, but the defendants not only made a false TTTTTTT
statement on affidavit that the power of attorney had The equitable discretion to grant or not to grant a relief
authorized the second defendant only to look after and for specific performance also depends upon the conduct
manage the property but also withheld the said power of the parties. The necessary ingredient has to be proved
of attorney from the Court in order to misguide the and established by the plaintiff so that discretion would
Court from truth of the facts. Fur ther, by registered be exercised judiciously in favour of the plaintiff. At the
agreement the defendants agreed to sell the suit same time, if the defendant does not come with clean
premises after receiving advance consideration but they hands and suppresses material facts and evidence and
denied the existence of the agreement in their pleading. misled the Court then such discretion should not be
Such conduct of the defendants in our opinion, exercised by refusing to grant specific performance.
disentitles them to ask the Court for exercising TTTTTTT

GENERAL
Efflux of time and escalation of price of the property by the pendency of litigation.
itself cannot be a valid ground to deny the relief of TTTTTTT
specific performance. But the Court in its discretion may Authorities relied upon : Civil Appeal No. 9047 of 2014,
impose reasonable conditions including payment of 1759 (1) Eden 177.
additional amount to the vendor. It is equally well settled Reference : Supreme Court. Zarina Siddiqui v. A.
that the plaintiff is not to be denied specific performance Ramalingam alias R. Amarnathan, civil appeal no. 9947
only on account of phenomenal increase of price during of 2014.
—————
DIRECTION FOR "FURTHER INVESTIGATION" DOES

NOT AMOUNT TO "RE-INVESTIGATION"
O N THE COMPLAINT OF ONE TOFAIL AHMED
ALLEGING kidnapping of his son, P.S. Case No.
181/2011 was registered under Section 365 of the
further investigation by an independent agency , more
particularly the CID, by its order dated 29.1.2013.
The Trial Court in Sessions Case No. 182 of 2012
Indian Penal Code, 1860 (the IPC) at the Badarpur
directed further investigation by the CID, stayed the
Police Station at Karimganj, Assam, dated 22.11.2012.
trial proceedings and rejected the bail application of
Sessions Case No. 75 of 2012 arising out of the
accused-petitioners herein by a common order dated
aforesaid was registered under Sections 365, 120B, 302
18.2.2013.
and 201 of IPC and Section 27 of the Arms Act against
Against the aforesaid order passed by the Trial Court,
two accused-petitioners herein-Kamal Hussain and
the accused-petitioners had approached the High
Mumin Uddin. Further, another Police Case No. 126
Court with the limited prayer of grant of bail. The High
of 2012 was registered under Sections 365, 120B, 302,
Court being of the view that since direction of further
201 of IPC and Section 25(1-B)(a), (2) and (3) of the
investigation has been issued by the learned Sessions
Arms Act for threatening to commit murder of the
Judge, the charge sheet submitted earlier by the police
witnesses in the aforesaid Sessions Trial against the
had become infructuous and the accused-appellants
petitioner accused persons herein and the
were entitled to seek relief under Section 167(2),
corresponding Sessions Case No. 182 of 2012 was
proviso (A)(1), by its order dated 12.3.2013 in Bail
committed. The accused-petitioners were in judicial
Application No. 593 of 2013 had granted bail to the
custody. While the aforesaid to accused petitioners
three accused-applicants therein (the petitioner before
in Sessions Case No. 75 of 2012 were acquitted, the
us). On the basis of the aforesaid order of the High
Trial Court had enlarged accused petitioner-Abdul
Court, three other co-accused-petitioners were
Basit on bail by order dated 24.1.2013.
released by order dated 20.3.2013 in Bail Application
The wife of the deceased preferred Writ Petition No.
No. 654 of 2013. Subsequently , by order dated
4523 of 2012 before the High Court for the direction
20.3.2013 in Bail Application No. 664 of 2013, other
to investigating agencies in Police Case No. 126 of
three co-accused were enlarged on bail.
2012 to investigate properly. The High Court took note
of the fact that the Sessions Case No. 182 of 2012 is Aggrieved by the aforesaid three orders, the respondent
at the stage of framing of charges and observed that herein approached the High Court by way of Crl. M.C.
depending upon the materials on record the Trial 226 of 2013 of 2013 in B.A. No. 654 of 2013 and sought
Court is at liberty to invoke Section 173(8) of the Code for cancellation of the bail granted to all the accused-
of Criminal Procedure, 1973 (the Code) requiring petitioners herein on the grounds, inter alia, that the

GENERAL
direction of learned Sessions Judge, Karimganj in application by the prosecuting agency.
Sessions Case No. 182 of 2012 to the CID to conduct TTTTTTT
further investigation of the case under Section 173(8) of Generally the grounds for cancellation of bail, broadly,
the Code does not tantamount to re-investigation or are (i) the accused misuses his liberty by indulging in
fresh investigation of the case and hence, did not render similar criminal activity, (ii) interferes with the course
the charge-sheet submitted by the police in the of investigation, (iii) attempts to tamper with evidence
aforesaid case infructuous and therefore, could not have or witnesses, (iv) threatens witnesses or indulges in
entitled the respondents to avail of default bail under similar activities which would hamper smooth
Section 167(2)(i) of the Code on the ground that charge- investigation, (v) there is likelihood of his fleeing to
sheet was not submitted within 90 days. another country, (vi) attempts to make himself saree by
The High Court by a common judgement and order, going underground or becoming unavailable to the
dated 16.7.2013, has accepted the aforesaid ground and investigating agency, (vii) attempts to place himself
allowed the prayer of the respondent herein, thus beyond the reach of his surety, etc.
canceling the bail granted to all the accused-petitioners TTTTTTT
herein. While disposing of the matter the High Court, in Where bail has been granted under the proviso to
paragraph 4 of the impugned judgement, has held as Section 167(2) for the default of the prosecution in not
under: completing the investigation in sixty days after the defect
…there would be no difficulty in holding that is cured by the filing of a charge-sheet, the prosecution
granting of bail contrary to law or contrary to may seek to have the bail cancelled on the ground that
law laid down by the Apex Court can constitute there are reasonable grounds to believe that the
a valid ground for cancellation of bail already accused has committed a non-bailable offence and that
granted; this will no (sic) fall foul of Section 362 if it is necessary to arrest him and commit him to custody.
of the Code. However, in the last mentioned case, one would expect
Aggrieved by the aforesaid cancellation of bail by the very strong grounds indeed.
High Court the accused-petitioner filed special leave TTTTTTT
petitions. The Supreme Court accepted the appeals, set The respondents herein had filed the criminal
aside the judgement and order passed by the High miscellaneous petition before the High Court seeking
Court. The interim order granted on 2.9.2013 by the cancellation of bail on grounds that the bail was
Supreme Court granting bail to the accused-petitioners obtained by the petitioners herein by gross
were ordered to continue till the disposal of case No. misrepresentation of facts, misleading the Court and
126 of 2012 corresponding case no. 182 of 2012. indulging in fraud. Thus, the petition challenged the
The operative part of the judgement read as under : legality of the grant of bail and required the bail order
to be set aside on ground of it being perverse in law.
An order for release on bail under proviso (a) to Section
167(2) is not an order on merits but an order-on-default The circumstances brought on record did not reflect any
situation where the bail was misused by the petitioner-
of the prosecuting agency. Such an order could be
accused. Therefore, the High Court could not have
nullified for special reasons after the defect/default has
been cured. The accused cannot, therefore, claim any entertained the said petition and cancelled the bail on
grounds on it being perverse in law.
special right to remain on bail. If the investigation
TTTTTTT
reveals that the accused has committed a serious offence
and charge-sheet is filed, the bail granted under Since, no express provision for review of order granting
bail exists under the Code, the High Court becomes
proviso(a) to Section 167(2) could be cancelled on an
functus officio and Section 362 of the Code applies

GENERAL
herein barring the review of judgement and order of the Court.
Court granting bail to the accused-petitioners. Even TTTTTTT
though the cancellation of bail rides on the satisfaction It is a well settled proposition of law what cannot be
and discretion of the Court under Section 439(2) of the done dir ectly, cannot be done indir ectly. While
Code, it does not vest the power of review in the Court exercising a statutory power a Court is bound to act
which granted bail. within the four corners of the Statute. The statutory
TTTTTTT exercise of the power stands on a different pedestal than
The High Court is not justified in reviewing its earlier the power of judicial review vested in a Court.
order of grant of bail and thus, the impugned judgement TTTTTTT
and order requires to be set aside. Authorities relied upon : 2013 (12) Scale 190, 2001 (6)
TTTTTTT SCC 318, 1978 (1) SCC 118.
The judgment and order granting bail cannot be Reference : Supreme Court. Abdul Basit @ Raju & Ors.
reviewed by the Court passing such judgement and Etc. v. Md. Abdul Kadir Chaudhary & Anr., special leave
order in absence of any express provision in the Code petition (crl.) nos. 6855-6857 of 2013 (from the Judgement
for the same. Section 362 of the Code operates as bar and Order dated 16.7.2013 in CRLMC No. 226/2013 in BA
to any alteration or review of the cases disposed of by No. 654/2013, DRLMC No. 227/2013 in BA No. 664/2013
the Court. The singular exception to the said statutory and CRLMC No. 228 in BA No. 593/2013 passed by the
bar is correction of clerical or arithmetical error by the High Court of Gauhati at Guahati).
—————
COUNTER CLAIM REMAINS ALIVE EVEN

IF SUIT IS DISMISSED
O NE PHOOLAN RANI, WIFE OF OM PRAKASH,
AND ANOTHER instituted Civil Suit No. 107B of
2003 seeking a declaration that they are the owners in
respondents were entitled to 1/4th share each. The
judgement and decree passed in the said suit was
assailed in appeal and the appellate court modified the
possession of the land admeasuring 1/9th share in the judgement and decree dated 21.9.2002 vide judgement
suit land and further praying for permanent injunction dated 15.2.2003 holding that each one of them was
against the defendants. After issue of notice, the entitled to 1/9th share and the said modification was
defendant Nos. 12 to 14 filed a counter-claim putting done on the ground that the property was ancestral in
forth that they had the right, title and interest as the nature and the sisters had their shares. After disposal
original owner, Jeth Ram, had executed a Will dated of the appeal, one of the sisters filed a declaratory suit
18.5.1995 in their favour. to the effect that she is the owner in possession of land
After the counter-claim was filed, defendant Nos. 1 and in respect of 1/9th share in the suit land and in the said
2 filed an application for dismissal of the counter-claim suit a counter-claim was filed by defendant Nos. 12 to
on the foundation that the same did not merit 14 stating that they had become owner in possession of
consideration as it was barred by Order 2, Rule 2 of the suit property on the basis of a properly registered
C.P.C. It was set forth in the application that a suit for Will dated 18.5.1995 executed by Jeth Ram. In the
declaration was earlier filed by the present appellants application it was set forth that the counter-claim had
along with others against the defendants and a decree been filed in collusion with the plaintiff as the plea of
was passed in their favour on 21.9.2002 whereby it was claiming any status under the Will dated 18.5.1995 was
held that the present appellants and some of the never raised in the earlier suit. It was urged that the plea

GENERAL
having not been raised by way of a counter-claim in the meal adjudication. The plaintiff can file an application
second suit being barred by the principles of Order 2 for exclusion of a counterclaim and can do so at any
Rule 2 of C.P.C. time before issues are settled in relation to the counter-
The learned trial Judge adverted to the lis in the first claim.
suit, the factum of not raising the plea with regard to TTTTTTT
Will in the earlier suit and came to hold that the counter- In the instant case, the counter-claim has been dismissed
claim could not be advanced solely on the ground that finally by expressing an opinion that it is barred by
the existence of the Will had come to the knowledge of principles of Order 2, Rule 2 of the CPC. The question
the defendants only in the year 2003. Being of this view, is what status is to be given to such an expression of
the learned trial Judge allowed the application filed by opinion.
the defendant Nos. 1 and 2 and resultantly dismissed TTTTTTT
the counter-claim filed by the defendant Nos. 12 to 14 When there is a conclusive determination of rights of
vide order dated 13.10.2010. parties upon adjudication, the said decision in certain
The legal substantiality of the aforesaid order was called circumstances can have the status of a decree. In the
in question in Civil Revision No. 900 of 2011 preferred instant case, the counter-claim has been adjudicated
under Article 227 of the Constitution of India wherein and decided on merits holding that it is barred by
the High Court taking note of the previous factual principle of Order 2, Rule 2 of C.P.C.
background came to hold that the learned trial Judge had TTTTTTT
failed to appreciate that the Will dated 18.5.1995 executed When the counter-claim filed by the defendants is
by Jeth Ram, the father of defendant Nos. 12 to 14, was adjudicated and dismissed, finality is attached to it as
alive at the time of adjudication of the earlier suit and far as the controversy in respect of the claim put forth
hence, the said Will could not have taken aid of during by the defendants is concerned. Nothing in that regard
his lifetime. The aforesaid analysis persuaded the learned survives as far as the said defendants are concerned.
Single Judge to set aside the order passed by the learned When an opinion is expressed holding that the counter-
trial Judge. However, the Single Judge observed that it claim is barred by principles of Order 2, Rule 2 C.P.C.,
would be open to the plaintiff to raise all pleas against it indubitably adjudicates the controversy as regards the
the counter-claim. substantive right of the defendants who had lodged the
Against the judgement of the High Court special leave counter-claim. It cannot be regarded as an ancillary or
petition was filed. The Supreme Court accepted the incidental finding recorded in the suit.
appeal, set aside the order of the High Court mainly on TTTTTTT
the ground that revision was not maintainable, liberty There may be situations where an order can get the
was granted to the respondents to prefer an appeal status of a decree. A Court may draw up a formal decree
before the appropriate forum as required under law. or may not, but if by virtue of the order of the Court, the
rights have finally been adjudicated, irrefutably it would
The operative part of the judgement read as under : assume the status of a decree. As is evincible, in the case
A counter-claim preferred by the defendant in a suit is at hand, the counter-claim which is in the nature of a
in the nature of a cross-suit and by a statutory command cross-suit has been dismissed. Nothing else survives for
even if the suit is dismissed, counter-claim shall remain the defendants who had filed the counter-claim.
alive for adjudication. As per Rule 6A(2) the court is Therefore, we have no hesitation in holding that the
required to pronounce a final judgement in the same order passed by the learned trial Judge has the status
suit both on the original claim and also on the of a decree and the challenge to the same has to be
counterclaim. The seminal purpose is to avoid piece- made before the appropriate forum where appeal could

CONSUMER
lay by paying the requisite fee. It could not have been Reference : Supreme Court. Rajni Rani &Anr. v. Khairati
unsettled by the High Court in exercise of the power Lal & Ors., civil appeal no. 6862 of 2014 (from the
under Article 227 of the Constitution of India. Judgement and Order dated 1.12.2011 of the High Court
TTTTTTT of Punjab and Haryana at Chandigarh in Civil Revision
Authorities relied upon : AIR 1967 SC 1344, AIR 1961 No. 900 of 2011).
SC 794,AIR 1933 PC 58. —————
ISSUING NSC IN TRADE NAME WAS

A CURABLE IRREGULARITY
O N 28.4.1995, M/S BHAGWATI VANASPATI
TRADERS PURCHASED one, six years' National
Savings Certificate (NSC) bearing number 6NS/06DD
respondent was additionally directed to pay, a sum of Rs.
5,000/- as compensation, and also cost of Rs. 2,000/-, to
the appellant proprietorship concern.
387742, by investing a sum of Rs. 5,000/-. The above NSC Dissatisfied with the order dated 1.2.2007, passed by the
was to mature on 28.4.2001. The maturity amount payable District Forum in favour of the appellant, the respondent
on 28.4.2001 was Rs. 10,075/-. Senior Superintendent of Post Offices, Meerut, preferred
Since M/s. Bhagati Vanaspati Traders was not paid the Appeal no. 460 of 2007 before the State Consumer
amount due on maturity, B.K. Garg (sole proprietor) made Disputes Redressal Commission, Lucknow . The
repeated visits to the office from where the NSC was aforestated appeal was allowed by the State Commission
purchased. He was informed, that an NSC could only be vide its order dated 21.1.2008. The appellant concern then
issued in the name of an individual, and that, the NSC preferred Revision Petition No. 1456 of 2008 before the
taken in the name of M/s BhagwatiVanaspati Traders, was National Consumer Disputes Redressal Commission, New
not valid. He was also informed, that the matter had been Delhi. The National Commission dismissed the revision
referred for advice to the Post Master General, Bareilly, petition, vide the impugned order dated 4.9.2008.
and that, the question of payment of the maturity amount Against the order of National Commission special leave
would be considered only after the receipt of inputs from petition was filed. The Supreme Court accepted the appeal,
Bareilly. Having waited for a substantial length of time, the respondent was accordingly directed to pay to B.K.
and realizing that no further action had been taken at the Garg the maturity amount of Rs. 10,075/- with 12% interest,
hands of the respondent, B.K. Garg visited the office of from the date of maturity, till the date of payment. He
the Post Master General, Bareilly. At Bareilly he was would be entitled to Rs. 5,000/- towards compensation,
informed, that the matter had been referred to the Director as was awarded to him by the District Forum, held the
General (Post), Department of Posts, New Delhi, and that, Supreme Court.
he would have to await the decision of the Director
General (Post). Having waited long enough, without any The operative part of the judgement read as under :
fruitful result, M/s Bhagwati Vanaspati Traders preferred The contention advanced at the hands of the learned
Complaint Case no. 513 of 2004 before the District counsel for the appellant was based on the decision
Consumer Disputes Redressal Forum, Meerut (the District rendered by this Court in Tata Iron & Steel Co. Ltd. v.
Forum). The District Forum, by its order dated 1.2.2007 Union of India & ors.
accepted the claim of M/s Bhagwati Vanaspati Traders, TTTTTTT
and accordingly, directed the respondent to pay the It was the emphatic contention of the learned counsel
maturity amount of Rs. 10,075/- with 12% interest, from for the appellant, that the rule of estoppel would come
the date of maturity till the date of payment. The to the aid of the appellant, inasmuch as, the appellant

CONSUMER
having been consciously permitted to purchase the in a sole proprietorship concern an individual uses a
NSC, could not be denied the benefit of the maturity fictional trade name, in place of his own name. The
amount by asserting, that there was some irregularity rigidity adopted by the authorities is clearly
in the purchase of the NSC. ununderstandable. The postal authorities having
TTTTTTT permitted M/s. Bhagwati Vanaspati Traders to purchase
It is not possible for us to accept the applicability of the NSC in the year 1995, could not have legitimately
the principle of estoppel in the facts and circumstances raised a challenge of irregularity after the maturity
of this case. No representation is ever shown to have thereof in the year 2001, specially when the irregularity
been made to the appellant. It was the appellant's was curable. Legally, rule 17 of the Post Office Savings
individual decision to purchase the NSC. It is not shown, Bank General Rules, 1981, would apply only when an
that a fraudulent representation was made to the applicant is irregularly allowed something more, than
appellant. It is also not shown, that a false statement what is contemplated under a scheme.
was negligently made to the appellant. The rule of TTTTTTT
estoppel, in the present case, could have only been It is not possible for us to deny relief to the appellant,
premised on some conduct of the respondent, which had based on the judgements rendered by this Court in Raja
willfully induced the appellant to invest in the NSC. Prameeelamma case [1998 (9) SCC 706] and Arulmighu
Unfortunately, for the appellant, no such willful conduct Dhandayadhapaniswamy Thirukoil case [2011 (13)
has been brought to our notice. SCC 220], in view of the fact that, the matter was never
TTTTTTT examined in the perspective determined by us
This case would be governed by the proposition evolved hereinabove. In neither of the two judgements, the
in Moorgate Mercantile Co. Ltd. v. Twitchings [1977 AC amendment of the NSC was sought.
890], namely, where two people with the same source TTTTTTT
of information assert the same truth or agree to assert The postal authorities should have solicited the change
the same falsehood at the same time, neither can be of the name in the NSC, through a representation by
estopped against the other. Therefore, whilst it cannot B.K. Garg himself. On receipt of such a representation,
be disputed, that the authorities issuing the NSC were the alleged irregularity would have been cured, and the
required to ensure, that the same was issued to only such beneficiary of the deposit, would have legitimately
persons who were eligible in law to purchase the same, reaped the fruits thereof. Rather than adopting the above
yet in terms of the mandate of rule 17 extracted simple course, the postal authorities chose to strictly
hereinabove, the vires whereof is not subject matter of and rigidly interpret the terms of the scheme. This
challenge, it is not possible for us to accept, that the resulted in the denial of the legitimate claims of the sole
rule of estoppel could be relied upon at the behest of proprietor of the appellant concern, i.e., B.K. Garg, of
the appellant, for any fruitful benefit. the investment made by him.
TTTTTTT TTTTTTT
It is indeed true, that the NSC was purchased in the Authorities relied upon : 1977 AC 890.
name of M/s. Bhagwati Vanaspati Traders. It is also Reference : Supreme Court. M/s. Bhagwati Vanaspati
equally true, that M/s. Bhagwati Vanaspati Traders is a Traders v. Senior Superintendent of Post Offices, Meerut,
sole proprietorship concern of B.K. Garg, and as such, civil appeal no. 4854 of 2009 (from the Judgement and
the irregularity committed while issuing the NSC in the Order dated 4.9.2008 in RP No. 1456 of 2008 of the
name of M/s. Bhagwati Vanaspati Traders, could have National Consumer Disputes Redressal Commission,
easily been corrected by substituting the name of M/s. New Delhi).
Bhagwati Vanasptati Traders with that of B.K. Garg. For, —————

GLOBAL GLIMPSE
SUPREME COURT UPHOLDS FINDING THAT STATE DENTAL BOARD IS
ANTICOMPETITIVE
The US Supreme Court ruled in North Carolina State Board of Dental Examiners v. Federal Trade Commission that
because the North Carolina State Board of Dental Examiners consists mostly of active market participants in the
occupation the board regulates, it could only invoke immunity to antitrust action if it was actively supervised by
the state. The Federal Trade Commission (FTC) filed an administrative action against the board in June 2010, alleging
that the board stifled competition in violation of antitrust laws by working to bar non-dentists from providing teeth
whitening services. A unanimous commission ruled in December 2011 that the board had violated Section 5 of the
FTC Act, a decision upheld upon review by the US Court of Appeals for the Fourth Circuit. The Supreme Court
ruled that because the state did not actively supervise the board, it was not immune from antitrust action, and
upheld the FTC's ruling. The case was argued before the Supreme Court in October 2014.
UN REPORTS PROGRESS TOWARD TORTURE PREVENTION INAFGHANISTAN

The UN Assistance Mission in Afghanistan (UNAMA) announced that Afghanistan has made "some progress"
toward preventing the torture and ill-treatment of detainees held in government custody . The UN officials
acknowledged the effort and commitment the Afghan government has shown towards eliminating the use of torture
in detainment facilities, yet the report shows that one-third of those detained are still being mistreated. UNAMA
attributes the progress to new government policies and directives banning torture, increased inspection visits to
detention facilities, and focused training on alternative interrogation techniques, however, they suggest that lack
of accountability through criminal prosecution allows the continued use of torture to go unpunished. This is the
third report on torture and abuse in Afghan detainment facilities published by UNAMA and the UN High
Commissioner for Human Rights. UNAMA released the first report on detainee torture in Afghanistan in October
2011. In January 2014, a second report detailed findings of continued torture and abuse of detainees. The Afghan
government confirmed the report's findings of widespread torture and mistreatment of prisoners in facilities across
Afghanistan. Human Rights Watch urged Afghanistan to make meaningful reforms to end the use of torture in
government detention centers based on the report.
CANADA SUPREME COURT STRIKES DOWN P ART OF ANTI-MONEY

LAUNDERING LAW TARGETING LAWYERS
The Supreme Court of Canada struck down part of the nation's anti-money laundering and terrorist financing law
pertaining to lawyers, on the grounds that the legislation infringed on lawyers' duty to their clients. A unanimous
court found that provisions of the Proceeds of Crime (Money Laundering) and Terrorist Financing Act, which forced
lawyers to collect and report any suspicious financial activity involving their clients to the Financial Transactions
and Reports Analysis Centre of Canada, was "inconsistent with the lawyer's duty of commitment to the client's
cause". The law, which was challenged by the Federation of Law Societies of Canada, imposed criminal charges on
non-compliant lawyers, but such charges had never been pursued by the government. The court's decision does
not overrule or affect other portions of the anti-money laundering and terrorism finance law.
JAMAICAPARLIAMENT DECRIMINALIZES SMALLAMOUNTS OF MARIJUANA
The Jamaican House of Parliament passed an act decriminalizing small amounts of marijuana. Under the new law,
possession of less than two ounces of marijuana is considered a petty offense punishable by a ticket. Beyond
consumption, the legislation allows individuals to cultivate up to five plants on any premises. Minister of National

GLOBAL GLIMPSE
Security Peter Bunting issued a statement following the act's passage, reinforcing the governments intent to continue
combating transnational drug trafficking and illegal cultivation of marijuana. The new law also lays the ground
work for the establishment of a licensing agency to regulate a lawful medical marijuana industry in the country.
Additional regulations regarding the licensing agencies and the establishment of the medical marijuana sector are
expected in the coming months. Jamaica is the most recent country to join a growing global trend of loosening anti-
marijuana laws. In November the head of the UN Office on Drugs and Crime expressed concern that the legalization
of marijuana by some US states is not compatible with existing international drug conventions.
NEPAL FORMS COMMISSIONS TO PROBE WAR CRIMES

Nepal created two commissions to investigate allegations of war crimes and disappearances that occurred during
the nation's 10-year civil war, said Nepali Law Minister NarahariAcharya. The Truth and Reconciliation Commission,
will investigate abuses committed during the conflict, and the Commission on Enforced Disappearances will
investigate the disappearances of more than 1,300 people still missing after the conflict ended in 2006. This agreement
by the coalition government to address the war-time accusations comes just after Human Rights Watch (HRW)
expressed its concern regarding the government's delay in the formation of the long-desired commissions. The
commissions will start their investigations within six months of their creation and will operate on two-year tenure.
Nepal's treatment of human rights issues has been a controversial topic in the wake of the civil war that ended
eight years ago and left more than 13,000 dead.
FEDERAL JUDGE DISMISSES GOOGLEANTITRUST SUIT

A federal judge for the Northern District of California dismissed a class action suit against Google for allegedly
monopolizing search engines in Android phones. The plaintiffs in the case were two customers who purchased
Samsung Galaxy mobile phones and sought to represent a class of Android purchasers. According to the claim,
neither plaintiff knew that Google would be the default search engine on their phone nor how to modify the search
engine. The plaintiffs argued their phones could have cost less and contained better search functions if it were not
for Google's strict Mobile Application Distribution Agreements. Plaintiffs brought forth six causes of action against
Google under both federal and state laws, including: the Sherman Act, the Clayton Act, the California Unfair
Competition Law and California's Cartwright Act. The judge granted Google's motion to dismiss all counts, finding
the plaintiffs' statement of facts do not indicate that Google's conduct prevented consumers from freely choosing
among search products or prevented competitors from innovating.
CALIFORNIA PLASTIC BAG BAN HALTED BY REFERENDUM PETITION

The implementation of California's plastic bag ban [SB 270], which was set to go into effect in July, had been halted
by a successful referendum petition. The trade group American Progressive Bag Alliance (ACPA) collected more
than 800,000 signatures on their petition. A random sampling of these signatures by election officials is projected
to satisfy the requirement 504,760 signatures needed to place the measure on the November 2016 ballot. The ACPA
contends the bag ban will eliminate manufacturing jobs and boost grocery store profits. Supporters of ban, including
campaign group California vs. Big Plastic, argue the law is intended to protect the environment by preventing littering
and pollution caused by plastic grocery bags. In addition, supporters of the ban have heavily criticized the more
than $3 million spent by ACPA in their push for a referendum. The referendum will not affect bans on plastic grocery
bags enacted by 138 cities and counties in California. SB 270 has faced a protracted and continuing political battle.
California Governor Jerry Brown signed the bill in October, making it the first law of its kind in the US. California

GLOBAL GLIMPSE
Senator Alex Padilla introduced the bill in an effort to reduce the amount of litter caused in the state by plastic
bags. Austin, Texas, banned plastic bags in 2013 and in January 2014, Los Angeles became the largest US city to
ban the use of plastic bags.
AUSTRALIA PM TO TOUGHEN CITIZENSHIP LAWS TO CURTAIL TERRORISM

Australian Prime Minister Tony Abbott announced a plan to revoke and curb citizenship of Australians involved in
terrorist activities. The proposal was made as a response to over a hundred Australian nationals who have traveled
overseas to fight for the Islamic State (IS), finding themselves in direct combat with Australian troops in Afghanistan
and Iraq. The proposed plan would revoke or suspend the citizenship of dual nationals participating in terrorist
activities, and lost privileges for natural born citizens. The proposal also provides for the appointment of a security
tsar meant to control groups or people that incite religious and racial hatred, most notably, people identified as
"hate preachers". IS, also known as the Islamic State of Iraq and the Levant (ISIL) and Islamic State of Iraq and
Syria (ISIS), has caused international upheaval as a result of its systematic violence and human rights abuses since
2013. In November 2014 the International Criminal Court (ICC) said it was contemplating bringing charges against
IS fighters for war crimes and crimes against humanity. A UN report released in early February outlined IS's continued
human rights abuses in the practice of the abduction and systematic killing of Iraqi children.
FEDERAL JUDGE REJECTS BP PETITION TO REDUCE OIL SPILL FINE

A judge for the US District Court for the Eastern District of Louisiana rejected a motion by BP to reduce the civil
fine payable under the Clean Water Act in relation to the 2010 offshore oil spill. BP's appeal sought to reduce the
fine per barrel from the $4,300 proposed by the US government to $3,000 per barrel. Judge Carl Barbie's opinion
accepted the government's argument that the higher price was necessary to adjust for inflation. This opinion follows
an earlier ruling by Barbier in January 2015 reducing the maximum fine BP could face due to an overestimation of
the size of the oil spill. The April 2010 Deepwater Horizon oil spill had far-reaching and catastrophic environmental
effects. According to a 2013 study published by the National Academy of Sciences, it is difficult to know the full
extent of environmental damage caused by the spill because of the movement of ocean currents and the difficulties
of monitoring the great variety of natural resources found in the Gulf of Mexico. In December 2014 the US Supreme
Court declined to review the settlement reached in the oil spill case following an order of adherence to the terms of
the settlement issued by the US Court of Appeals for the Fifth Circuit last March. BP claims that under the terms
of the settlement they are forced to pay businesses and individuals who could not prove that their injuries were
caused by the oil spill in 2010.
ooooooo
QUOTE from COURT

Don't try to instruct your lawyer. If you do, you've got
the wrong lawyer.
—JOHN T. NOLAN

LAW FOR YOU
AWARD RELATING T O NON Further, S. 12(ii) of Court-fees Act clearly empowers the
ARBITRABLE DISPUTES LIABLE TO BE appellate court to direct a party to make up deficit court-
QUASHED fee in the plaint at the appellate stage. The power exercised
Arbitration arises from a contract and unless there is a by the first appellate court can be traced to clause (ii) of
specific written contract, a contract with regard to S. 12 of 1870 Act as well.
arbitration cannot be presumed. S. 7(3) of theArbitration Reference : SC. Sardar Tajender Singh Ghambhir
and Conciliations Act clearly specifies that the contract and another v. Sardar Gurpreet Singh & others,
with regard to arbitration must be in writing. It was not civil appeal no. 8660 of 2014 [arising out of S.L.P.
open to the Arbitrator to arbitrate upon the disputes in (C) No. 9042 of 2013].
question as there was a specific clause whereby the said IF ALLOTMENT IS TAINTED, SECOND
disputes had been "excepted". Moreover, when the law EMPANELLED CANDIDATE NOT
specifically makes a provision with regard to formation of ENTITLED TOALLOTMENT
a contract in a particular manner, there cannot be any If the allotment of dealership or distributorship of
presumption with regard to a contract if the contract is petroleum products is tainted due to political connections
not entered into by the mode prescribed under the Act. or patronage or other extraneous considerations, the entire
Therefore, it was not open to the Arbitrator to decide the selection process is vitiated and, therefore the second
issues which were not arbitrable and the award, so far as ranked or second empanelled candidate is not entitled to
it relates to disputes regarding non-arbitrable disputes is an automatic allotment of dealership or distributorship in
concerned, is bad in law and is liable to be quashed. If a his or her favour. When the allotment of the dealership or
non-arbitrable dispute is referred to anArbitrator and even distributorship for petroleum products in favour of the
if an issue is framed by the Arbitrator in relation to such first empanelled candidate was cancelled as a result of the
a dispute, there cannot be a presumption or a conclusion Report of the Committee appointed which Report has been
to the effect that the parties had agreed to refer the issue accepted by Supreme Court, the selection process itself
to the Arbitrator. In the instant case, the respondent is vitiated. In such an event, there is no question of the
authorities had raised an objection relating to the second empanelled candidate being automatically granted
arbitrability of the issue before the Arbitrator and yet the the dealership or distributorship in place of the first
Arbitrator had rendered his decision on the said empanelled candidate. The entire panel of selected
"excepted" dispute. The Arbitrator could not have decided candidates must stand cancelled and a fresh selection
the said "excepted" dispute. process must be initiated.
Reference :SC. M/s Harsha Constructions v. Union Reference : SC. Chairman-cum-Managing
of India & Ors., civil appeal no. 534 of 2007. Director, Indian Oil Corporation Ltd. and Ors. v.
DEFICIENCY IN COURT FEE CAN BE Sunita Kumari & Anr., civil appeal no. 8980 of
MADE GOOD DURING APPELLATE 2014 [arising out of S.L.P. (Civil) No. 313 of 2012]
STAGE with SLP (Civil) No. 31006 of 2012.
Deficiency in court fee in respect of plaint can be made PERSON IN POSSESSION OF VEHICLE
good during the appellate stage. Appeal is continuation UNDER HYPOTHECATIONAGREEMENT
of suit and the power of the appellate court is coextensive IS OWNER
with that of the trial court. What could be done by the A person in whose name a motor vehicle stands registered
trial court in the proceeding of the suit, can always be is the owner of the vehicle and, where motor vehicle is
done by the appellate court in the interest of justice. the subject of hire-purchase agreement or an agreement

LAW FOR Y OU
of hypothecation, the person in possession of the vehicle by which the Chief Justice may provide for the procedure
under that agreement is the owner. It also stipulates that to be followed in cases dealt with by him under S. 11. This
in case of a minor, the guardian of such a minor shall be again shows that it is not the High Court or the Supreme
treated as the owner. Thus, the intention of the legislature Court rules that are to be followed but a separate set of
in case of a minor is mandated to treat the guardian of rules made by the Chief Justice for the purposes of Section
such a minor as the 'owner'. This is the first exception to 11. Moreover, S. 11(12)(b) was necessitated in order that
the definition of the term 'owner'. The second exception it be clear that the Chief Justice of "the High Court" will
that has been carved out is that in relation to a motor only be such Chief Justice within whose local limits the
vehicle, which is the subject of hire-purchase agreement Principal Civil Court referred to in S. 2(1)(e) is situate and
or an agreement of lease or an agreement of the Chief Justice of that High Court which is referred to
hypothecation, the person in possession of vehicle under in the inclusive part of the definition contained in Section
that agreement is the owner. 2(1)(e). This sub-section also does not in any manner make
Reference :SC. HDFC Bank Ltd. v. Kumari Reshma the Chief Justice or his designate "court" for the purpose
and Ors., civil appeal nos. 10608-10609 of 2014 of S. 42. Again, the decision of the Chief Justice or his
[arising out of S.L.P. (Civil) Nos. 19079-19080 of designate, not being the decision of the Supreme Court
2014]. or the High Court, as the case may be, has no precedential
APPLICATION UNDER S. 1 1 OF value being a decision of a judicial authority which is not
a Court of Record.
ARBITRATIONAND CONCILIATIONACT
Reference : SC. State of West Bengal & others v.
IS MADE TO C.J. OR HIS DESIGNATE Associated Contractors, civil appeal no. 6691 of
S. 2(1)(e) of Arbitration and Conciliation Act contains an
2005.
exhaustive definition marking out only the Principal Civil
Court of original jurisdiction in a district or a High Court PURPOSE OF S. 125 Cr.P.C. IS TO
having original civil jurisdiction in the State, and no other PREVENT VAGRANCY AND
court as "court" for the purpose of Part-I of theArbitration DESTITUTION IN SOCIETY
and Conciliation Act, 1996, S. 42 only applies to Provision of S. 125(2) of Cr.P.C. expressly enables the
application made under Part-I if they are made to a court Court to grant maintenance from the date of the order or
as defined. Since application made under S. 8 are made to from the date of the application. However, Section 125 of
judicial authorities and since applications under S. 11 are the Cr.P.C. must be construed with sub-section (6) of
made to the Chief Justice or his designate, the judicial Section 354 of the Cr.P.C. Thus, every final order under
authority and the Chief Justice or his designate not being Section 125 of the Cr.P.C. [and other sections referred to
court as defined, such applications would be outside S. in sub-section(c) of Section 354] must contain points for
42. Also, a party who applies under S. 8 does not apply determination, the decision thereon and the reasons for
as dominus litis, but has to go wherever the 'action' may such decision. In other words, Section 125 and Section
have been filed. Thus, an application under Section 8 is 354(6) must be read together. Section 125 of the Cr.P.C.,
parasitical in nature - it has to be filed only before the therefore, impliedly requires the Court to consider making
judicial authority before whom a proceeding is filed by the order for maintenance effective from either of the two
someone else. Further, the "judicial authority" may or may dates, having regard to the relevant facts. For good
not be a Court. And a Court before which an action may reason, evident from its order, the Court may choose either
be brought may not be a Principal Civil Court of original date. It is neither appropriate nor desirable that a Court
jurisdiction or a High Court exercising original jurisdiction. simply states that maintenance should be paid from either
Further, the scheme referred to in S. 11 (10) is a scheme the date of the order or the date of the application in

LAW FOR Y OU
matters of maintenance. Thus, as per S. 354 (6) of the When the trial court is required to act in accordance with
Cr.P.C., the Court should record reasons in support of the the mandatory provisions of S. 313, failure on the part of
order passed by it, in both eventualities. The purpose of the trial court to comply with the mandate of the law,
the provision is to prevent vagrancy and destitution in cannot automatically enure to the benefit of the accused.
society and the Court must apply its mind to the options Any omission on the part of the Court to question the
having regard to the facts of the particular case. accused on any incriminating circumstance would not ipso
Reference : SC. Jaiminiben Hirenbhai Vyas and facto vitiate the trial, unless some material prejudice is
another v. Hirenbhai Rameshchandra Vyas and shown to have been caused to the accused. Insofar as
another, criminal appeal no. 2435 of 2014 [arising non-compliance of mandatory provisions of S. 313, it is
out of SLP (Cri.) No. 3345 of 2013]. an error essentially committed by the Trial Court. Since
DOCTRINE OF PIERCING VEIL justice suffers in the hands of the Court, the same has to
be corrected or rectified in the appeal.
The doctrine of piercing the veil allows the Court to
Reference : SC. Nar Singh v. State of Haryana,
disregard the separate legal personality of a company and
criminal appeal no. 2388 of 2014 [arising out of
impose liability upon the persons exercising real control
S.L.P. (Cri.) No. 8852 of 2013].
over the said company. However, this principle has been
and should be applied in a restrictive manner, that is, only AWARD OF COMPENSATION IN LIEU
in scenarios wherein it is evident that the company was a OF REINSTATEMENT
mere camouflage or sham deliberately created by the It is no doubt true that a Court may pass an order
persons exercising control over the said company for the substituting an order of reinstatement by awarding
purpose of avoiding liability. The intent of piercing the compensation but the same has to be based on justifiable
veil must be such that would seek to remedy a wrong grounds viz. (i) where the industry is closed; (ii) where
done by the persons controlling the company . The the employee has superannuated or going to retire shortly
application would thus depend upon the peculiar facts and no period of service is left to his credit; (iii) where
and circumstances of each case. the workman has been rendered incapacitated to
Reference : SC. Balwant Rai Saluja & Anr. v. Air discharge the duties and cannot be reinstated and/or (iv)
India Ltd. & Ors., civil appeal nos. 10264-10266 when he has lost confidence of the Management to
of 2013. discharge duties. There may be appropriate case on facts
NON COMPLIANCE OF S. 313 WOULD which may justify substituting the order of reinstatement
NOT ENTITLEACCUSED TOACQUITTAL by award of compensation, but that has to be supported
by some legal and justifiable reasons indicating why the
The importance of a statement under S. 313 of Criminal
order of reinstatement should be allowed to be substituted
P.C. (2 of 1974) insofar as the accused is concerned, can
by award of compensation.
hardly be minimized. The statutory provision is based on
Reference : SC. Tapash Kumar Paul v. BSNL &
the rules of natural justice for an accused, who must be
another, civil appeal no. 4980 of 2014 [arising
made aware of the circumstances being put against him
out of SLP (C) No. 15357 of 2013].
so that he can give a proper explanation to meet that case.
If an objection as to S. 313, statement is taken at the 'JUDICIAL APPROACH' CHECK
earliest stage, the Court can make good the defect and AGAINST FLAWSAND FAULTS
record additional statement of the accused as that would The expression "Fundamental Policy of Indian Law" must,
be in the interest of all. When objection as to defective S. include, all such fundamental principles as providing a
313, statement is raised in the appellate court, then basis for administration of justice and enforcement of law
difficulty arises for the prosecution as well as the accused. in this country. Without meaning to exhaustively

LAW FOR Y OU
enumerate the purport of the expression "Fundamental victim of the crime but also the society at large while
Policy of Indian Law", to three distinct and fundamental considering the imposition of appropriate punishment.
juristic principles may be referred that must necessarily Meagre sentence imposed solely on account of lapse of
be understood as a part and parcel of the Fundamental time without considering the degree of the offence will
Policy of Indian Law. The first and foremost is the be counter-productive in the long run and against the
principle that in every determination whether by a Court interest of the society. One of the prime objectives of
or other authority that affects the rights of a citizen or criminal law is the imposition of adequate, just,
leads to any civil consequences, the Court or authority proportionate punishment which commensurate with
concerned is bound to adopt what is in legal parlance gravity, nature of crime and the manner in which the
called a 'judicial approach' in the matter. The duty to adopt offence is committed. One should keep in mind the social
a judicial approach arises from the very nature of the power interest and conscience of the society while considering
exercised by the Court or the authority does not have to the determinative factor of sentence with gravity of crime.
be separately or additionally enjoined upon the fora The punishment should not be so lenient that it shocks
concerned. What must be remembered is that the the conscience of the society. It is, therefore, solemn duty
importance of judicial approach in judicial and quasi- of the court to strike a proper balance while awarding the
judicial determination lies in the fact so long as the Court, sentence as awarding lesser sentence encourages any
Tribunal or the Authority exercising powers that affect the criminal and, as a result of the same, the society suffers.
rights or obligations of the parties before them shows Reference : SC. State of Madhya Pradesh v.
fidelity to judicial approach, they cannot act in an arbitrary, Surendra Singh, criminal appeal no. 2401 of 2014
capricious or whimsical manner. Judicial approach ensures [arising out of SLP (Cri.) No. 5947 of 2013].
that the authority acts bona fide and deals with the subject DETERMINATION OF SICK COMPANY, IS
in a fair, reasonable and objective manner and that its
IN EXCLUSIVE DOMAIN OF BIFR
decision is not actuated by any extraneous consideration.
Sick Industrial Companies (Special Provisions) Act (1 of
Judicial approach in that sense acts as a check against
1986) gives complete supervisory control to the BIFR over
flaws and faults that can render the decision of a Court,
the affairs of a sick Industrial Company from the stage of
Tribunal or Authority vulnerable to challenge.
registration of reference and questions concerning status
Reference : SC. Oil & Natural Gas Corporation
of sickness of such company are in the exclusive domain
Ltd. v. Western Geco International Ltd., civil appeal
of the BIFR. Any submission or assertion by anyone
no. 3415 of 2007.
including the Company that by certain developments the
SENTENCE MUST COMMENSURATE Company as revived itself and/or that its net worth since
WITH GRAVITY OF OFFENCE the stage of registration having become positive no such
Undue sympathy to impose inadequate sentence would scheme for revival needs to be undertaken, must be and
do more harm to the justice system to undermine the public can only be dealt with by the BIFR. Any such assertion
confidence in the efficacy of law. It is the duty of every or claim has to be made before the BIFR and only upon
court to award proper sentence having regard to the nature the satisfaction of the BIFR that a sick company is no
of the offence and the manner in which it was executed longer sick, that such company could be said to have
or committed. The sentencing courts are expected to ceased to be amenable to its supervisory control under
consider all relevant facts and circumstances bearing on the Act. The aspects of rival of such company being
the question of sentence and proceed to impose a completely within its exclusive domain, it is the BIFR alone,
sentence commensurate with the gravity of the offence. which can determine the issue whether such company
The court must not only keep in view the rights of the now stands revived or not. The jurisdiction of the civil

LAW FOR Y OU
court in respect of these matters stands completely partly on the maxim of Roman jurisprudence "interest
excluded. reipublicae ut sit finis litium" (it concerns the State that
Reference : SC. Ghanshyam Sarda v. M/s Shiv there be an end to law suits) and partly on the maxim
Shankar Trading Co., and others, civil appeal no. "nemo debet bis vexari pro uno et eadem causa" (no man
10221 with 10222, 10223, 10224-10225, 10226 should be vexed twice over for the same cause). Even an
of 2014 [@ Special Leave Petition (C) No. 5249 erroneous decision on a question of law attracts the
with 5897, 8610, 8611, 6412 of 2014 and Comptent doctrine of res judicata between the parties to it. The
Petn. (C) Nos. 338 with 375 of 2014, @ S.L.P. (C) correctness or otherwise of a judicial decision has no
No. 5249 with 8610 of 2014]. bearing upon the question whether or not it operates as
USE OF DNATEST BEAVOIDED res judicata.
Reference : SC. Dr. Subramanian Swamy v. State
Depending on the facts and circumstances of the case, it
of Tamil Nadu & Ors., civil appeal no. 10620 with
would be permissible for a Court to direct the holding of
10621, 10622 of 2013.
a DNA examination, to determine the veracity of the
allegation(s), which constitute one of the grounds, on FINALITY ATTACHED TO JUDGEMENT
which the concerned party would either succeed or lose. IS PRESERVED
There can be no dispute, that if the direction to hold such Explanation to Order XLVII, Rule 1 of Code of Civil
a test can be avoided, it should be so avoided. The reason Procedure, 1908 provides that if the decision on a question
is that the legitimacy of a child should not be put to peril. of law on which the judgement of the court is based, is
Reference : SC. Dipanwita Roy v. Ronobroto Roy, reversed or modified by the subsequent decision of a
civil appeal no. 9744 of 2014 [arising out of SLP superior court in any other case, it shall not be a ground
(C) No. 5694 of 2013]. for the review of such judgement. Thus, even an erroneous
"RES JUDICATA" MEANING EXPLAINED decision cannot be a ground for the court to undertake
The literal meaning of "res" is "everything that may form review, as the first and foremost requirement of
an object of rights and includes an object, subject-matter entertaining a review petition is that the order, review of
or status" and "res judicata" literally means "a matter which is sought, suffers from any error apparent on the
adjudged, a thing judicially acted upon or decided; a thing face of the order and in absence of any such error, finality
or matter settled by judgements". "Res judicata pro attached to the judgement/order cannot be disturbed.
veritate accipitur" is the full maxim which has, over the Reference : SC. Dr. Subramanian Swamy v. State
years, shrunk to mere "res judicata", which mean that res of Tamil Nadu & Ors., civil appeal no. 10620 with
judicata is accepted for truth. The doctrine contains the 10621, 10622 of 2013.
rule of conclusiveness of the judgement which is based ooooooo
QUOTE from COURT

Lawyers take to politics like bears take to honey.
—ROBERT TOWNSEND

GENERAL
NEITHER ACCUSED ABETTED THE DECEASED TO COMMIT
SUICIDE NOR HARASSED; CONVICTION SETASIDE
O N 6.6.2001 THE COMPLAINANT OF THE CASE

VIZ. CAPTAIN Jagtar Singh (PW1) lodged a report
Ex. A-1 at P.S. Sitarganj, wherein it has been stated that
taken apart and separate charge-sheet was filed against
them at later stage. In that case, the trial court has
acquitted these accused persons by giving them
marriage of his daughter Jagpreet Kaur was solemnized benefit of doubt with respect to allegations alleged
with Upkar Singh son of Harpal Singh on 1.3.2001. the against them.
complainant gave the articles in the marriage according To prove its case against Smt. Kuldeep Kaur and Gurial
to his capacity, but in-laws of his daughter used to Singh & Rakesh Grover, prosecution examined eight
demand car etc. and used to taunt and harass his witnesses, namely , PW1 Captain Jagtar Singh
daughter. It was further complained that Jagpreet Kaur (deceased's father), PW2 Smt. Gurmeet Kaur (deceased's
told the informant that her in-laws harassed her on cousin sister), PW3 Pyara Singh (deceased's relative),
account of nonfulfillment of demand of dowry and in PW4 Dr. R.A. Kediya (who conducted post-mortem),
the intervening night of 5th/6th of June, 2001, she was PW5 Harak Singh Rawat (Tehsildar), PW6 Balwant
compelled to commit suicide. On the basis of this Singh, PW7 S.I. Sohan Pal Singh and PW8 Dalip Singh
complaint, case was registered against the accused (Investigation Officer). In defence, three witnesses were
persons under Section 304-B, IPC and the police took examined. Incriminating evidence was put to the
into custody a small bottle, cover of which was slightly accused persons under Section 313 of the Code of
torned, on which "Cypermethrin High Emulsifable Criminal Procedure, in which they submitted that they
Concentrate (Vet) Elitomin 100 E.C." was written. Diary were falsely implicated in the case.
Ex. A-2 written by the deceased was also seized. Dead On appreciation of evidence and material placed on
body was sent for postmortem, where no apparent record, the trial court held that the deceased did not
injury except ligature mark on the neck was found. commit suicide due to cruelty caused to her in
According to the concerned Doctor, cause of death of connection with demand of dowry and acquitted the
the deceased was due to asphyxia as a result of ante- appellant and other co-accused of the offence
mortem hanging. punishable under Sections 498A/304B, IPC and
Upon investigation, charge-sheet for the offence Sections 3 & 4 of the Dowry Prohibition Act. However,
punishable under Section 304-B, IPC was submitted in the appellant was held guilty under Section 306, IPC
the Court of Magistrate, who committed the case to the and was sentenced to undergo imprisonment for three
Court of Sessions for trial. The trial court charged years and fine of Rs. 5000/-.
accused persons viz. mother-in-law Smt. Kuldeep Kaur Aggrieved by the decision of the trial court,
and brothers-in-law Gurial Singh & Rakesh Grover respondent-State preferred appeal before the High
under Section 498A/304-B, IPC and Section ¾ of Dowry Court against the judgement of acquittal passed by the
Prohibition Act, to which the accused persons pleaded trial court. Accused-appellant also preferred appeal
not guilty and sought trial. challenging her conviction under Section 306, IPC. After
It is worth to mention here that as accused Harpal hearing learned counsel appearing for the parties and
(father-in-law) had died, case was abated against him, appreciating the evidence and papers placed before it,
and since deceased's husband Upkar Singh and sister- the Division Bench of the High Court dismissed the
in-law Rupender Kaur and Satender Kaur were absent appeals affirming judgement of the trial court.
at the time of filing of charge-sheet, their records were Against the judgement of the Division Bench mother-

CONSUMER
in-law of the deceased-Kuldeep Kaur filed special leave true to say that neither the accused persons abetted his
petition. The Supreme Court accepted the appeal, set daughter to commit suicide nor they harassed her.
aside the judgement of the conviction of the appellant TTTTTTT
under Section 306 IPC. The evidence adduced as against the appellant does not
establish the case under Section 306 of the Code. On
The operative part of the judgement read as under : the basis of evidence of the prosecution witnesses,
A perusal of trial court judgement pertaining to conviction of the appellant only cannot be sustained.
deceased's husband would show that PW1, father of the Having regard to the fact of the case and the evidence
deceased, in his cross examination stated that no dowry of the prosecution witnesses, the trial court acquitted
was demanded by the accused persons from the day of all the accused persons except the present appellant
alliance till solemnization of marriage. Whatever and the said judgement was affirmed by the High Court.
stridhan was given was as per the custom and as per We do not find any str ong reason to agree with the
his will in the form of gift to his daughter. He further judgement of conviction passed by the trial court and
stated that his daughter had not told him that in the affirmed by the High Court as against the appellant.
absence of Upkar Singh she remained dejected in her TTTTTTT
matrimonial house because of her mother-in-law, father- Reference : Supreme Court. Kuldeep Kaur v. State of
in-law, sister-in-law and husband and elder brother-in- Uttarakhand, criminal appeal no. 2267 of 2014 (from the
law on the issue of dowry. Witness himself stated that Judgement and Order dated 3.1.2013 in CRLA No. 213/
only God knows why her daughter committed suicide 2006, passed by the High Court of Uttarakhand at
without any reason. This witness has stated that it is Nainital).
—————
NO ONE CAN BE PUNISHED MERELY FOR

APPROACHING COURT
I N THE COMPLAINT FILED BEFORE THE DISTRICT
FORUM, THE prayer of Ashok Ramnik Lal Tolat (the
respondent) was as follows:
the complainant along with the 18% interest,
from the date of payment to the complainant
and the Hon'ble Forum be pleased to direct the
(a) That this Hon'ble Forum be pleased to hold opposite parties to forthwith to take back the
that the opposite parties (joint and severally) said vehicle from the complainant, after
to have practiced unfair trade practice, towards refunding the complainant's money with
the complainant and direct them (jointly and interest, as prayed;
severally) to remove unfair trade practice, (d) This Hon'ble Forum be pleased to direct
practiced by them against the complainant; the opposite parties (jointly and severally) to
(b) This Hon'ble Forum be pleased to direct pay compensation for physical and mental
the opposite parties (jointly and severally) to pain, shock, suffering, agonies, hardships,
remove the deficiencies in their services and inconveniences and expenses suffered by the
negligence towards the complainant; complainant, to the tune of Rs. 50,000/-
(c) The Hon'ble Forum be pleased to direct the (Rupees Fifty Thousand) or as thought fit in
opposite parties (jointly and severally) to the interest of justice, by this Hon'ble Forum;
refund the complainant a sum of Rs. 14,00,000 (e) The Hon'ble Forum be pleased to direct the
(Rupees Fourteen Lakh) and Rs. 1,91,295/- to opposite parties (jointly and severally) to pay

CONSUMER
Rs.. 25,000/- to the complainant, as cost of this through water such as when crossing shallow
complaint. stream's first check the depth of the water and
The case of the complainant is that he had passion for the water stream bed for firmness and ensure
driving and dream to visit Leh Ladakh, Jammu & that the bed of stream is flat ……….. the water
Kashmir and Nepal by driving a motor car. By surfing should be shallow enough that it does not
the internet, he read advertisement given by the reach under carriage.
appellant as follows: Thus he found that the owner's manual was contrary
Introducing a world without borders, an SUV to the assurance in the brochure, internet and the book
to end all SUVs. That's the new Chevrolet titled "for a special journey called life". He also realized
Forester. With the Power of 120 horses under that the vehicle was not SUV but a mere passenger car,
its borne unique All-Wheels (AWD), it literally not fit for "off-road, no road and dirt road" driving. He
puts the four corners of the earth within your could not realize his dream to drive it to Leh Ladakh,
easy reach. It won't just get you there. But get Jammu & Kashmir and Nepal. The action of the
you there. But get you there in unmatched appellant was thus, "unfair trade practice". He sought
comfort and luxury by-road, off-road or no- permission to remove "unfair trade practice" and
road. deficiencies in service and also to refund a sum of Rs.
Relying upon the same, he visited the agents of the 14 Lakhs the price of the vehicle and Rs. 1,91,295/- the
appellant and was given a book titled "for a special price of accessories with 18% interest from the date of
journey called life". He was assured that the vehicle purchase till the date of payment and also to pay
offered for sale will realize his dream. The brochure also compensation for physical and mental pain shock,
assured that "the vehicle in question is an SUV to end suffering, agonies, hardships, inconvenience and
all SUVs. And……….it will put the four corners of the expenses suffered by the complainant, to the tune of
earth within your each and ………… it won't just get Rs. 50,000/- or as thought fit in the interest of justice
you their every time. But get you're there in unmatched and the costs. The District Forum directed refund of
comfort, by road, off-road or no road". He was also Rs. 14 Lakhs plus Rs. 1,91,295/- towards cost of
shown visual presentation of the vehicle and was also accessories with interest @ 9% per annum from the
given a copy of the VCD. Accordingly, he purchased date of complaint to the date of payment subject to the
the vehicles on 1st May, 2004 for Rs. 14 Lakhs and got return of the vehicle, apart from compensation of Rs.
accessories worth Rs. 1,91,295/- fitted and also got the 5,000/- for mental agony and Rs. 2,000/- as costs of
vehicle insured and registered. litigation.
Thereafter he realized that the vehicle was not fit for The said order of the District Forum was challenged
"off-road, no road and dirt road" driving as represented by the appellant before the Consumer Disputes
and had defects. Accordingly, he approached the Redressal Commission, Gujarat State, Ahmedabad (the
appellant and its dealers who referred to the owner's State Commission). The State Commission held that the
manual at pages 8-6 colum 1 & 3 printed by the vehicle had no mechanical or manufacturing defect but
Company to the effect: the advertisement that car was SUV amounted to
"unfair trade practice". Accordingly, in substitution of
off-road driving ………. But please keep in
mind that AWD Chevrolet is a passenger car the order of the District Forum, the complainant was
held entitled to Rs. 50,000/- as compensation which
and is neither a conventional off-road vehicle
included costs of litigation. But at the same time, the
nor an all terrain vehicle ……. If the driving
complainant was required to pay Rs. 5,000/- towards

CONSUMER
costs for undeserving claim. The appellant was directed Commission proceeded to consider the relief to be
not to describe the vehicle in question as SUV in any given. It was held that the State Commission was not
form of advertisement, website, literature etc. and to justified in reversing the direction of the District Forum
make the correction that it is a passenger car as once the commission of "unfair trade practice" was
mentioned in the manual. established, even as per finding of the State
Accordingly, the appellant complied with the said Commission. Accordingly, the National Commission
direction by issuing a disclaimer. restored the relief given by the District Forum with
slight modification as follows:
The respondent preferred a revision petition against the
Order of the State Commission while the appellant filed Once it is found that respondent has indulged
a cross revision petition. in unfair trade practice which had misled the
petitioner to purchase the vehicle in question,
The National Commission held that the appellant could
in our view, the most appropriate relief to the
not be allowed to contest the finding of committing
petitioner would be to reinstate the petitioner
"unfair trade practice" in view of its conduct in
to his original position before the purchase of
voluntarily complying with the order of the State
the vehicle viz., refund of the price of the
Commission and filing cross revision without any
vehicle along with some compensation in that
justification and belatedly. Referring to the material on
behalf. Keeping in view that the vehicle was
record, particularly, the undisputed correspondence,
used by the petitioner for a period of about
the said finding was also af firmed on merits. After
one year and it has run approximately 14,000
referring to the definition of "unfair trade practice"
kms, we consider it appropriate that the
under Section 2(1)(r) of the Consumer Protection Act,
respondent should refund a sum of Rs.
1986 (the Act), it was concluded:
12,50,000 (Rupees twelve lacs fifty thousand
Keeping in view the above definition of unfair only) to the petitioner subject to the condition
trade practice and the material obtaining on
that the vehicle in question, without the
record more particularly the representations
accessories, which the petitioner got fixed at
made and held out by the respondent in their a cost of Rs. 1,91,295/-, is returned to the
brochures relating to the vehicle in question,
respondent.
the owner's manual as also the clarification
The above was not the end of the journey, though the
rendered by the manufacturer of the vehicle,
above relief met the claim of the complainant in his
there can be hardly any doubt that the motor
complaint. The National Commission proceeded to
vehicle Chevrolet forester AWD model was not
consider the issue of punitive damages for "unfair trade
a vehicle of the said description in as much
practice" in selling the said vehicles to about 260
as it was not a SUV vehicle. Therefore, the
consumers. It was held that though the consumers had
petitioner must have been misled on that score
not approached the National Commission and a period
to believe that the vehicle offered for sale was
of four years had passed, the appellant should pay
a SUV. This act of the respondent would
punitive damages of Rs. 25 Lakhs and out of the said
clearly fall within the mischief of unfair trade
amount, a sum of Rs. 5 Lakhs be paid to the
practice as envisaged in section 2(r) (supra).
complainant while the rest be deposited in the
We therefore, affirm the findings of the S tate
"Consumer Welfare Fund" of the Central Government
Commission in this behalf.
to be utilized for the benefit and protection of the
After recording the above finding the National
interests of the consumers generally. Final operative

CONSUMER
order passed by the National Commission is as follows: suppliers of goods and services. The redress is provided
The respondents are hereby directed to pay a to a consumer against any deficiency in service as well
sum of Rs. 12,50,000/- (Rupees Twelve Lacs as against any loss or inquiry arising out of u" nfair trade
Fifty Thousand only) to the petitioner towards practice". By later amendment, scope of a complaint can
price of the vehicle subject to the petitioner cover not only individual consumer but also consumers
returning the vehicle in question without who are not identifiable conveniently . However, the
accessories to the respondents. The complainant has to make an averment and make a
respondents are hereby called upon to deposit claim.
a sum of Rs. 25 lacs (Rupees Twenty Five TTTTTTT
Lacs) as punitive damages with this Mere proof of "unfair trade practice"is not enough for
Commission. Out of the said deposited claim or award of relief unless causing of loss is also
amount, a sum of Rs. 5 lacs (rupees five lacs) established which in the present case has not been
shall be paid to the petitioner-complainant and established.
rest of the amount shall be credited to the TTTTTTT
"Consumer Welfare Fund" of the Central Neither there is any averment in the complaint about
Government to be utilized for the benefit and the suffering of punitive damages by the other
protection of the interests of the consumers consumers nor the appellant was aware that any such
generally. We also award a sum of Rs. 50,000/ claim is to be met by it. Normally, punitive damages are
- (Rupees fifty thousand) in favour of the awarded against a conscious wrong doing unrelated to
complainant to meet his cost of litigation the actual loss suffered. Such a claim has to be specially
before the three consumer fora. The liability pleaded. The respondent complainant was satisfied with
to pay and deposit the amounts shall be joint the order of the District Forum and did not approach
and several on the respondents. We grant six the State Commission.
weeks to the respondents to comply with the TTTTTTT
directions given herein above. The National Commission has gone much beyond its
jurisdiction in awarding the relief which was neither
Against the order of the National Commission appeals
sought in the complaint nor before the State
were filed in the Supreme Court. The Supreme Court
Commission. We are thus, of the view that to this extent
accepted the appeals, the order of the National
the order of the National Commission cannot be
Commission to the extent of award of punitive damages
sustained. The said order is contrary to principles of fair
was set aside.
procedure and natural justice. We also make it clear that
this order will not stand in the way of any aggrieved
The operative part of the judgement read as under : party raising a claim before an appropriate forum in
What survives for consideration is the submission of
accordance with law.
learned senior counsel for the appellant, that there was
TTTTTTT
no claim before the National Commission for the
Reference : Supreme Court. General Motors (India)
punitive damages nor the appellant had an opportunity
Private Limited v. Ashok Ramnik Lal Tolat & Anr., civil
to meet such claim and that part of the order needs to
appeal nos. 8072-8073 of 2009 (from the Judgement and
be set aside.
Order dated 16.12.2008 of the National Consumer
TTTTTTT
Disputes Redressal Commission, New Delhi in Revision
The Act is a piece of social legislation to provide a
Petition No. 3349 of 2006 and 2858 of 2008).
forum to the consumers who are taken for a ride by
—————

MIND SPRINT.....
1
4 5
7 8 9
10 11
12
13 14
15
16
17
18
ACROSS DOWN
2. In civil law it means to find for the defender or 1. Any property which is capable of being inherited.
respondent in respect of the claim(s) made by the 3. A judicial prohibition or court order preventing
pursuer. someone from doing something.
4. Letters passing between seller and purchaser setting 5. A formal order made by a court containing its
out terms of agreement of the sale of property. decision.
7. The crime committed by a witness in court 6. The right of a person during his or her life to use and
proceedings by lying on oath or on an affirmation. enjoy property.
8. The legal share of a parent's free moveable estate 9. A formal statement of a witness taken or written by
due on death to the children. another person.
12. To discharge from liability. 10. The widow's legal right of dower in real estate.
15. A written statement in an action setting out the factual 11. When one party to an agreement does not pursue
and legal grounds of action of the pursuer in a civil rights under the agreement even though the other
action. party has not kept to its terms.
16. A civil wrong. 13. The effect or serve to the use, benefit, or advantage
17. To give (final) decree or judgment and authorises an of a person.
extract of the decree or order. 14. A term used to refer to a widow or widower in
18. The appearance of a defender or respondent in civil relation to succession to a deceased's estate.
proceedings.
For answers turn to page no. 154

LEGAL UPDATES
SC REFUSES TO HEAR PLEAAGAINST proposing a total of 80 sewage treatment plants (STPs)
ORDINANCE which would process, in a day, 368 million liters of water
flowing into the river in the five river basin States. The
Despite pleas that it infringes "grassroots democracy", the
court directed the government to present the status of 31
Supreme Court has refused to entertain a challenge against
ongoing projects of STPs and 15 others which were in
the Rajasthan Panchayati Raj (Second Amendment)
the bidding stage. The hearing primarily focused on the
Ordinance, 2014. The ordinance, promulgated on
domestic sewage flowing into the river. In October 2014,
December 20, 2014, prescribes minimum educational
the Bench had referred to the National Green Tribunal the
qualifications to contest in local body elections, and
responsibility of monitoring and inspecting industrial units
effectively keeps out illiterate persons from the democratic
along the river and even cut off their water and power
process. In a brief hearing, a Bench led by Chief Justice
connections if they were found to be polluting. The
of India asked the petitioners, led by social activistAruna
Supreme Court has been hearing this petition since the
Roy, to approach the Rajasthan High Court and convince
early 1980s. Numerous orders have been passed by it,
it of the urgency of the matter. The ordinance stipulates
directing the authorities to protect the river. The petition
that a member of a zila parishad or panchayat samiti
was filed by lawyer M.C. Mehta highlighting the alarming
should have acquired secondary education. While the
state of the river and its depletion owing to pollution.
panchayat sarpanch of a Scheduled area should have
passed Class 5, his counter-part in Non-Scheduled areas FRAME GUIDELINES TO HELP
should have cleared Class 8. Appearing for various NURSES: SC
petitioners, senior advocates Raju Ramachandran, Anand In a relief to the nursing community, the Supreme Court
Grover and Abhishek Manu Singhvi submitted that the has asked the Centre to consider framing guidelines to
ordinance was passed "strategically", knowing that the improve the working conditions of nurses, especially those
courts would be closed for vacations". "We are only working in metropolitan cities, and provide them with a
telling you to please go to the High Court and then come decent life. The Social Justice Bench gave the Centre a
back to us," Chief Justice Dattu observed. Ms. Roy's four-week deadline to study the problems plaguing
petition argued that the ordinance is a "punitive and nurses, who are forced to work for meager remuneration.
disentitling measure" in a State where the Right to Appearing for the Centre,Additional Solicitor General P.S.
Education has seen the worst implementation. It argued Narasimha assured the court that the government "will
that the ordinance violated the inclusive spirit of the 73rd take care" of the problems affecting the nurses, including
and 74th Amendments and served as "exit for illiterate their complaints about lack of facilities, low salaries and
people". Mr. Grover submitted that the 2001 Census poor working atmosphere in hospitals and nursing homes.
showed 82.5 percent of the people above 20 years of age Mr. Narasimha, however, said the Centre has no control
in rural Rajasthan did not have formal education beyond over institutions run exclusively by State governments.
class 5 or primary level. "In such cases, the States have to take action. But we
SC ASKS GOVT. FOR UPDATE ON will take care of the institutions coming under us," the
GANGA CLEAN-UP PROJECTS ASG submitted before the Bench. The hearing came on a
petition filed by the Indian Council of Nurses, which
The Supreme Court has asked the NDA government if
represent over three lakh nurses across the country. The
there was any chance of cleaning up the Ganga river
Council's lawyer, Supreme Court advocate Romy Chacko,
during its current term in power . Solicitor-General
argued that hospitals and nursing homes keep in their
submitted that a consortium of IITs was preparing a road
custody the original certificates of the nurses-a practice
map for cleaning the river. He said the government was
more prevalent in the cities such as Delhi, Mumbai and

LEGAL UPDATES
other metros-and that amounts to bonded labour. Mr. Fernando, with a knife and killed him. According to his
Chacko said the nurses are "too poor to approach the mother Ramesh studied B.E. Mechanical at Anna
courts individually and fight for their basic rights." "They University and got employment at Tamil Nadu
get Rs. 5,000 to Rs. 6,000 a month. They cannot afford to Petrochemicals Limited. However, he developed some
go individually to the court against the hospital mental problem. The Madras High Court had confirmed
management. So the association has come to the highest the conviction and sentence of Ramesh, rejected the plea
court. There is a need for uniform guidelines to help them of unsoundness of mind saying "he had ventured to
lead a decent working life," Mr. Chacko submitted. attack the victim to death, actuated by religious
fanaticism". "Mere abnormality of mind of partial delusion
INSANITY CAN'T BE SOLE GROUND
affords no protection under Section 84 IPC. The accused
FOR RELEASE OF MURDER CONVICT:
had abnormal behaviour and was under treatment till the
SC beginning of the year 2005 and thereafter remained
Insanity cannot be the sole ground for release of a murder mentally fit," the HC said.
convict from jail as he may use the leeway given to him
to commit another murder, the Supreme Court observed
SUPREME COURT RULING LIMITS LIFE
while hearing a bail plea. The Bench observed that rather OF ORDINANCES
than letting out such a person, he should be placed in a The government would be courting legal trouble if it
mental hospital for treatment. The court made the attempts to re-promulgate the ordinances. In 1986, the
observation while dealing with an application for bail filed Supreme Court judgement in D.C. Wadhwa versus State
by the mother of Ramesh Babu, a murder convict from of Bihar declared that it was the "constitutional duty" of
Tamil Nadu sentenced to life imprisonment, on the ground the public to approach the court against re-promulgation
of unsoundness of mind. "Insanity cannot be the sole of ordinances in a massive scale as a routine measure.
ground for release. Who will take care of him? He The apex court held "the power to promulgate an
committed the murder when he was insane, he is still ordinance is essentially a power to be used to meet an
insane and if he will be released then he may commit extraordinary situation and cannot be allowed to be
another murder," the Bench said. M. Shanthi, the mother 'perverted to serve political ends'." An ordinance is
relied on Section 335 of the Prisoners act to submit that promulgated by the President on the Union Cabinet's
her son suffered from paranoid schizophrenia and required advice under Article 123 of the Constitution. It is a power
bail for treatment. The provision mandated keeping an wielded in circumstances that require immediate action.
insne person in safe custody. The application for bail Ordinances cannot be re-promulgated on a massive scale
came in the backdrop of a pending appeal challenging the in a routine manner , the apex court had held. The
Madras High Court of September 2009, confirming his life judgement held that the apex court can adjudicate if the
term. "We may acquit him [in future] but he should be re-promulgation subverted "the democratic process which
kept in a mental hospital. How can he be released? Who lies at the core of our constitutional scheme and subjected
will take care of him? His mother is an old lady, somebody people to be governed not by the laws made by the
has to take care of him," the Bench observed. The court, legislature as provided in the Constitution but by laws
however, has sought a response from the Tamil Nadu made by the Executive".
police within four weeks. Ramesh, a mechanical engineer, EMPTY SHELL OF A ROOM, NOT A
chopped a man to death at a church in St. Thomas Mount,
TOILET IN REALITY
Chennai, on November 26, 2006. He had entered a book
Four months after the government kick-started the Swachh
stall in the church and attacked the manager , Jacob
Bharat Abhiyan campaign, the Supreme Court has

LEGAL UPDATES
declared that merely calling an empty shell of a room a knowledge" to do it. "Either you (search engines) stop it
toilet, without providing users any of the required or we will do it ourselves at the gateway if you provide
facilities, does not make it a "toilet in reality." The Bench us with the details," Mr. Kumar submitted in court.
made the observation in a written order stressing the need
SPELL OUT COMPENSATION FOR
for clean and safe toilets for girls in schools. The court
STERILIZATION DEATHS: SC
pointed to how authorities build a certain "structure,"
christen it a "toilet" and then forged about it. "It can be Terming the deaths of over 10 women, who underwent
said without any fear of contradiction that a toilet in sterilization procedures in government camps in Bilaspur
structure only is not a toilet in reality," it observed in its district of Chhattisgarh, a "tragedy", the Supreme Court
three-page order. "Schools which are co-educational and has directed the State government to reveal steps taken
girls' schools have to have toilets which are clean and to indemnify and compensate the victims. The Social
acceptable, having proper facilities," the order read. The Justice Bench said the deaths remained "fresh" in public
court passed the order while perusing a report submitted memory and steps must be taken by both the Centre and
by its own committee, which conducted a survey of school the State to disburse funds to the victims. Besides the
toilets in Andhra Pradesh and Telangana. The report was deaths, over 30 people were reported critical after
scathing on the state of toilet facilities, especially for girl undergoing "faulty" surgeries at the government
students. The deplorable state of affairs in both States organized camp. Eighty-three women allegedly underwent
continued despite an earlier direction from the apex court the procedure in five hours at the free camps, organized
to frame schemes in this regard. The court's orders and by the Health Department on November 8, 2014. The
the hearing were based on a petition filed by J.K. Raju in Bench said the Bilaspur deaths occurred despite specific
2013. The court ordered that the Secretary , School directives issued by the court in 2005 in the Ramakant
Education Department, of both States be present in court Ravi versus Union of India case to ensure uniform norms
on March 10, 2015. and safety and quality in sterilization procedures. In its
2005 order, the court had ordered the creation of medical
REMOVE ADS ON PRE-NATAL SEX panels for conducting sterilization procedures, uniform
SELECTION: SC proforma for obtaining consent from patients, and
In an interim order, a Supreme Court bench ordered the insurance policies. The Bench said the State had to
three search engines-Google, Yahoo and Microsoft-to honour the conditions of the Family Planning Indemnity
"forthwith" withdraw online advertisements, currently Scheme framed by the Health Ministry.
being hosted or published, on pre-natal sex determination
STAY ON SALMAN'S CONVICTION
facilities, clinics or centres in violation of Section 22 of
SETASIDE
the Pre-Conception and Pre-Natal Diagnostic Techniques
(Prohibition of Sex Selection) or PC-PNDT Act, 1994. The Supreme Court has set aside a Rajasthan High Court
Referring to an affidavit filed by the Ministry of order staying actor Salman Khan's conviction in a 17-year-
Communications and information Technology, Solicitor- old blackbuck hunting case to facilitate his travel abroad
General Ranjit Kumar said the government would be able on work. The Bench while refusing to uphold the High
to "stop the presentation of any kind of thing that relates Court's stay order, said a court cannot stay a judicial order
to sex selection and eventual abortion" if the search of conviction merely because it would prevent him from
engines part with the URLs of such content.Alternatively, entering a foreign country. In November 2013, the
he said the search engines can also" effectively or Rajasthan High Court had stayed Salman's conviction so
regularly" block key words and advertisement links as they that he could get a visa to go to U.K. for a film shoot.
have the "relevant technology and deep-domain The actor had been sentenced to a five-year term in prison

LEGAL UPDATES
for hunting the protected animal. His conviction and for the court's intervention with the civic body and the
subsequent prison sentence of five years made him government to consider either regularization of their flats
ineligible for a visa under U.K.'s immigration rules and or "any other legitimate remedy ," including
subsequently, he was denied one. The Rajasthan "implementation of the existing policies and laws and even
government challenged the High Court's stay order. It said formation of new policies as required." "The flat owners
there was no "exceptional circumstances" in Salman's case are largely middle-class families and all individual
which warranted such a "blanket order." "If some foreign tenements measure between 500 sq.ft and thereabouts.
country is not granting permission to visit the said These middle-class citizens are being denied their rights
country on the ground that the respondent [Mr. Khan] under the existing laws and policies," the application said.
was convicted of an offence and sentenced for five years But the BMC strongly objected to the plea, arguing that
of imprisonment under the Indian Law, the said order the regularization of the flats would have a serious impact
cannot be a ground to stay the order of conviction," not just in Mumbai but across the country. The flats were
Justice Mukhopadhyay wrote in the 11-page order for the built about 30 years ago without the civic body's
Bench. "Only if the court comes to a definite conclusion permission.
that irreversible consequences/injustice would be caused
SC REPOSES FAITH IN SIT
to the accused which could not be restored, was it well
Trusting the government and its own Special
within the domain of the court to stay the conviction. No
Investigation Team to complete the job of unearthing black
such ground has been shown by the High Court while
money Indians have stashed away in foreign banks, the
passing the impugned order [November 2013]," the
Supreme Court spoke in the voice of the common man:
Supreme Court Bench observed. Noting there is nothing
"We are interested in seeing the money come back to us
on record to suggest that Salman needs to visit the U.K.
[nation], not in names, details." The Bench made the oral
again for a film shoot, the Bench however gave the actor
observation on an application by Rajya Sabha member and
liberty to approach the High Court again for stay on
senior lawyer Ram Jethmalani that not a "single rupee has
conviction.
come out in the past six months" and investigation into
GOVT. TO CONSIDER black money has been reduced to "a raid here, an
REGULARIZATION OF CAMPA COLA attachment there and that's all." It was on Mr .
FLATS Jethmalanai's petition in 2009 that the court set up the SIT,
Spelling a relief for the beleaguered residents of the Campa led by two retired Supreme Court judges-Justices M.B.
Cola society in Mumbai, the Maharashtra government told Shah and Arijit Pasayat-to retrieve the money. Senior
the Supreme Court that it was inclined to consider advocate Anil Diwan, counsel for Mr. Jethmalani, said the
regularizing the illegal flats as per law. The Devendra BJP manifesto had promised to take steps on a "priority
Fadnavis government informed a Bench that fresh basis to minimize the scope of corruption by minimizing
applications would be looked into under the Floor Surface the hoarding of black money." But Attorney-General
Index (FSI) rules. The Bench advised the residents, facing Mukul Rohtagi strongly objected to the line of argument.
eviction, to move the State government and the "It is completely wrong in saying that not a penny has
Brihanmumbai Municipal Corporation (BMC) for come up. Some of them [627 Indian account-holders] have
regularization. It clarified that its successive orders of paid penalties. Besides, time was given to us till March
February 27 and October 1, 2013 would not prevent the 31, 2015, to complete prosecution of black money holders
government from considering the applications afresh. The abroad under the IncomeTax Act," Mr. Rohatgi countered.
hearing came on an application moved by the residents "Everything the government has is with the Supreme
Court's SIT. We have shared every single document, name,

LEGAL UPDATES
account details with them. Nothing has been hidden from represented by senior advocate Dushyant Dave and
them." Chief Justice Dattu interjected, saying: "We are advocate Haris Beeran, was one of the two petitioners who
interested in seeing the money come back to us [nation], successfully fought for the rights of NRIs to vote from
not in names, details." Mr. Rohtagi submitted that the abroad. His present application seeks the Supreme Court
government and the SIT should be allowed to do their intervention to set up a method for in-country migrants-
job. Chief Justice Dattu said, "We are certain the SIT will who leave their constituency for reasons of work/
do its job well." employment, business, education, marriage, etc. - to vote
from their current place of residence. According to him,
SC REJECTSASARAM'S BAILPLEA
the number of migrants within the country is "staggering."
The Supreme Court has dismissed an application for
interim bail plea filed by self-styled 'godman'Asaram in a BCCI SHOULD PAY SERVICE TAX FOR
rape case. A three-judge Bench rejected the bail application RECORDING MATCHES: SC
on the basis of a medical report from a panel of doctors The Supreme Court has said the Board of Control for
from theAIIMS that he does not require immediate surgery Cricket in India would have to pay service tax for recording
and could continue with the present course of treatment. cricket matches, as it was a "service provider." The BCCI
"We have no reason to reject the opinion of the experts had moved the court against an order by the Central
of the All India Institute of Medical Sciences (AIIMS)," Excise and Service Tax Appellate Tribunal directing it to
the court said. The Bench, instead, turned its attention to pay Rs. 18 crore as service tax for recording matches
make sure that there is no undue influence upon three of between 2006 and 2010. The cricketing body argued that
the six material witnesses during the ongoing trial in a merely recording a match was not part of production of a
Jodhpur court, observing that the court hear their programme, and could not be included as an act attracting
testimony at the earliest. The Bench gave Asaram liberty service tax. It argued that camerapersons deployed just
to file a fresh bail plea after the statements of the three recorded the matches and this could not be described as
witnesses were recorded. The Bench made it clear to production. But the court did not agree with the cricketing
Asaram's side that it would restrict itself to hear the bail body's arguments. "The BCCI is [a] service provider. If
plea only on medical grounds and not on the merits of this is not a service, then what else is? Whatever the BCCI
the case. does is a service," observed the Bench.
NOTICE ON VOTING RIGHTS FOR AMEND LAW TO PROTECT HINDU
INTER-STATE MIGRANTS WIFE, SAYS PANEL
The Supreme Court has sought the government's Noting it is the "supreme duty" of a Hindu to protect
response to an application on allowing inter-State migrants those dependent on him, the Law Commission
the same voting privileges, like postal ballot, accorded to recommended to the government that the law should be
government servants. Section 20(8) (d) of the amended entitling a Hindu wife, whose husband is unable
Representation of the People Act 1950 read with Section to provide for her, to receive maintenance from his family.
60(b) of the Representation of the PeopleAct 1951 allows A seven-member committee led by the Law Commission
government servants and certain other class of persons of India Chairperson Justice A.P. Shah recommended a
to vote via postal ballot following the Election clause to be inserted in the Hindu Adoption and
Commission's consent. The Bench issued notice to the Maintenance Act, 1956 to financially protect a Hindu
government, and gave it four weeks' time to respond on woman, whose husband suffers from physical or mental
the application by Dr. V.P. Shamsheer, a native of disability and has no means to maintain herself. The same
Kozhikode, Kerala, based in UAE. Dr . Shamsheer, applies to wives of those who have disappeared or

LEGAL UPDATES
chosen "renunciation of the world by entering any chairperson and two senior most Supreme Court judges
religious order or other reasons." The only exception is as members, there was no "primacy" for them. Even their
when the husband has already got his share in the family collective recommendation of a candidate as judge could
property on partition. The committee has handed over its be frozen if any two non-judicial members on the panel
report to Law Minister D.V. Sadananda Gowda. vetoed it. The petition said the NJAC Act did not give
any "suitability criteria" for appointment as judge, leaving
SC LAWYERS' BODY PLEA TO
it to the Commission to frame them. It sought a return to
DECLARE NJAC INVALID
the recommendations of the 2002 Justice M.N.
The Supreme Court Advocate-on-Record Association Venkatachaliah Committee in which the NJAC was
(SCAORA) filed a writ petition seeking a declaration that composed of five members.
the Constitution 99th Amendment Act, 2014, providing
constitutional status to the National JudicialAppointments SC QUASHES FIR AGAINST COUPLE
Commission, is "invalid, void and unconstitutional". The FOR FB POST
association had, in August last year, challenged the NJAC In a fillip to free speech on social media, the Supreme
law. But a Bench led by Justice Anil R. Dave had said it Court has quashed FIRs registered by the Bengaluru
was too premature as the States were yet to ratify it. Traffic Police against a couple for posting "adverse"
However, the Supreme Court had given them liberty to comments on its Facebook page. The Bench said the
approach it at a later stage. The NJAC, which restores couple were well within their rights to air their grievances
the political class's role in the appointment of judges to on a public forum like Facebook. "The page created by
the Supreme Court and the High Courts, received the the traffic police on Facebook was a forum for the public
President's assent after ratification by 16 State legislatures. to put forth their grievances. In our considered view, the
Both the Constitution Amendment Bill and the NJAC Bill appellants might have posted the comment online under
were passed by Parliament in August 2014. The petition the bonafide belief that it was within the permissible
contends that by passing the NJAC Bill, Parliament had limits," the 10-page judgement observed. The couple's car
"altered the basic structure of the Constitution" and had hit an autorickshaw, resulting in injuries to a
encroached into judicial independence. "Independence of passenger. They paid due compensation to the injured
the judiciary includes the necessity to eliminate political person and took care of the hospital charges. But Ms.
influence even at the stage of appointment of a judge," Jawa, who drove the car, was summoned to the Pulakeshi
the petition said. It said the amendment, as passed by the Nagar Traffic Police Station, Bengaluru city, where the
two houses of Parliament, "takes away the primacy of the police allegedly misbehaved with her. The couple vented
collective opinion of the Chief Justice of India and the their anger on the police's Facebook page. The police
two senior most Judges of the Supreme Court of India". reacted by lodging a criminal complaint against the couple.
Although the six-member Commission had the CJI as ooooooo
QUOTE from COURT

A peasant between two lawyers is like a fish between two
cats.
—SPANISH PROVERS

GENERAL
NO CASE OF ACCIDENTAL BURNING;
ACQUITTAL SET ASIDE
after returning back, she lit the match stick, as a result of
T HE DECEASED SOUMYA WAS MARRIEDTO THE
ACCUSED-Manjunath on 13th May, 1996. She was
living with her husband and his mother co-accused
which fire broke out resulting in accidental burn injuries.
On appeal, the High Court reversed the decision of the
Suvarnnamma. She was not treated well and was Trial Court for reasons which can be summed up as
harassed for dowry. On 31st August, 1998 at about 6.15 follows:
P.M., when her husband had gone out, the accused (i) According to PW-1, the brother of the
Suvarnnamma brought kerosene can, poured kerosene deceased, the police had come to the hospital
on the deceased-Soumya and ignited the fire. She cried on the night itself on 31st August, 1998 and he
for help but Suvarnnamma put a rug on her. Thereafter, gave a complaint to the police at that time, while,
she shifted her to Chigateri General Hospital, Davangere. according to the Investigating Officer he came
PW-19, Dr. Rajeshwari Devi, examined her, Next day in to the hospital on 1st September , 1998 and
the morning of 1st September, 1998, at about 7A.M., PW- recorded the statement of the deceased
26, V. Dhananjaya, PSI, in the presence of PW-19, Dr. (ii) The dying declaration recorded by PW-22
Rajeshwari Devi recorded her statement and on that basis was not produced though recording of such
registered First Information Report. Soumya died on 3rd statement was admitted by the PW -19, Dr.
September, 1998. After investigation, the accused-the Rajeshwari Devi and the Taluka Executive
husband, the mother-in-law and the sister-in-law, were Magistrate, PW-22.
sent up for trial. (iii) It was doubtful that the death was either
The prosecution examined 26 witnesses which included homicidal or suicidal. The prosecution failed to
the family members of the deceased who gave evidence discharge the burden to prove this fact. In
of demand of dowry and also the oral dying declarations absence thereof, the death had to be taken to
made before them. PW-22, Taluqa Executive Magistrate, be by accident.
was examined to prove the inquest report. The (iv) There were discrepancies in the evidence
prosecution also examined the medical experts and the regarding the demand and payment of dowry
investigating officers. The accused denied the about the place where the negotiations took
prosecution allegations and stated that they were taken place, the persons present at the time of
out of their house by the police at 12 A.M. mid-night negotiations and the items of dowry demanded.
and arrested and were not aware of anything. (v) The Trial Court had not recorded the
The Trial Court held that the offences were proved statement under Section 313 Cr.P.C. properly
against the respondent-accused. However, co-accused resulting in prejudice to the accused.
Geetha, sister of Manjunath was acquitted. The Trial Court Against the judgement of the High Court special leave
held that the demand of dowry soon before the death was petition was filed. The Supreme Court accepted the
established by the evidence of family members of the appeal, the order passed by the High Court was set aside
deceased which was reliable. The Trial Court rejected the and that passed by the Trial Court was restored with the
plea that the prosecution had withheld the dying modification that the sentence of imprisonment awarded
declaration (Exhibit D-7) recorded by PW-22 that the to the accused under Section 304B will stand reduced
deceased caught fire accidentally; she had switched on to R.I. for seven years while maintaining sentence under
the gas stove and had gone to change her clothes; when other heads.

GENERAL
The operative part of the judgement read as under : PW-1, PW-3, PW-4, PW-5, PW-8, PW-14, PW-15 and PW-
16 were more reliable in the circumstances on record.
Burden of proof is on the prosecution and the TTTTTTT
prosecution has to establish its case beyond reasonable What is surprising and wholly unacceptable is the stand
doubt. Much weight cannot be given to minor of the accused who were husband and mother in-law of
discrepancies which are bound to occur on account of the deceased, living in the same house and that they had
difference in perception, loss of memory and other no idea that the deceased received burn injuries. This
invariable factors. In the absence of direct evidence, the stand is clearly incompatible with the stand in Exhibit
circumstantial evidence can be the basis of conviction D-7 that the accused mother in-law of the deceased was
if the circumstances are of conclusive nature and rule very much present in the house and she shifted the
out all reasonable possibilities of accused being deceased to the hospital. The deceased was
innocent. Once the prosecution probabilises the accompanied by her mother in-law who is one of the
involvement of the accused but the accused takes a false accused. The deceased could not have made any
plea, such false plea can be taken as an additional voluntary and independent dying declaration in such
circumstance against the accused. When the accused circumstances as the influence of the accused could not
takes a false plea about the facts exclusively known to be ruled out.
him, such circumstance is a vital additional TTTTTTT
circumstance against the accused. There is no evidence of struggle or cries and the burn
TTTTTTT
injuries are to the extent of 95%. In the case of an
Though the investigating agency is expected to be fair accident, the deceased would have tried to run away
and efficient, any lapse on its part cannot per se be a or escape. In these circumstances, there is hardly any
ground to throw out the prosecution case when there is possibility of accidental burn injuries. Extensive burns
overwhelming evidence to prove the offence. and other circumstances support the version of
TTTTTTT
unnatural death. In these circumstances, the dying
In appeal against the acquittal, if a possible view has declaration (Exhibit P-10) is consistent with the
been taken, no interference is required, but if the view circumstances on record while Exhibit D-7 is not.
taken is not legally sustainable, the Court has ample TTTTTTT
powers to interfere with the order of acquittal. The overwhelming evidence to prove the demand of
TTTTTTT
dowry has been rejected on account of minor
Court cannot be a mute spectator , particularly in discrepancies about the place at which the negotiations
criminal case and shun its primary duty of finding out took place or the persons in whose presence demand
the truth from the material on record. Thus merely was made. Such minor contradictions are not enough
showing that the prosecution withheld dying to discredit the version of demand of dowry.
declaration (Exhibit D-7) could not be a ground for the TTTTTTT
Court not finding out the cause of death from the The High Court has not at all discussed the truthfulness
material on record and inferring that the death was or otherwise of the plea of the accused that though they
accidental. Once dying declaration (Exhibit D-7) was were at home, they had no knowledge of burn injuries.
produced even by defence, the Court has to go into the This stand in their statement under Section 313 Cr.P.C.
authenticity of two rival versions in the dying is clearly false. They were expected to know the incident
declarations. It was required to be ascertained whether and make disclosure thereof, absence of which was a
(Exhibit D-7) was a genuine and reliable dying circumstance against them.
declaration or the oral dying declarations made before TTTTTTT

SERVICE
Even if dying declaration Exhibit D-7 was recorded and Section 313 Cr.P.C. could not be treated to be fatal.
not produced, this could not absolve the Court from TTTTTTT
considering the truthfulness of available evidence. There Authorities relied upon :1983 (3) SCC 217, 1973 (2) SCC
is no justification to hold that death was accidental nor 793.
to reject evidence of demand of dowry. There is objective Reference : Supreme Court. State of Karnataka v. Smt.
medical evidence which by itself shifts the burden on Suvarnnamma & Anr., criminal appeal no. 785 of 2010
the accused to explain circumstances in which burn (from the Judgement and Order dated 22.12.2005 of the
injuries ere caused in their house. In these High Court of Karnataka at Bangalore in CriminalAppeal
circumstances, any infirmity in the statement under No. 1818 of 2004).
—————
IF EMPLOYEES SHOULD BE EXEMPTED FROM
REFUNDING EXCESS AMOUNT?
T HE ISSUE IN THE PRESENT CASE IS WHETHER
ALL THE PRIVATE respondents, against whom an
order of recovery (of the excess amount) has been made,
mistake of making the higher payment to the employees.
The payment of higher dues to the private respondents,
in all these cases, was not on account of any
should be exempted in law from the reimbursement of misrepresentation made by them, nor was it on account
the same to the employer. of any fraud committed by them. Any participation of
All the private respondents in the present bunch of the private respondents, in the mistake committed by the
cases were given monetary benefits, which were in employer, in extending the undeserved monetary benefits
excess of their entitlement. These benefits flowed to to the respondent-employees, is totally ruled out. It
them, consequent upon a mistake committed by the would therefore not be incorrect to record, that the
concerned competent authority, in determining the private respondents, were as innocent as their employers,
emoluments payable to them. The mistake could have in the wrongful determination of their inflated
occurred on account of a variety of reasons; including emoluments.
the grant of a status, which the concerned employee was The Supreme Court summarized the following few
not entitled to; or payment of salary in a higher scale, situations, wherein recoveries by the employers would
than in consonance of the right of the concerned be impermissible in law:
employee; or because of a wrongful fixation of salary of (i) Recovery from employees belonging to
the employee, consequent upon the upward revision of Class-III and Class-IV service (or Group 'C' and
pay-scales; or for having been granted allowances, for Group 'D' service).
which the concerned employee was not authorized. The (ii) Recovery from retired employees, or
long and short of the matter is, that all the private employees who are due to retire within one year,
respondents were beneficiaries of a mistake committed of the order of recovery.
by the employer , and on account of the said (iii) Recovery from employees, when the excess
unintentional mistake, employees were in receipt of payment has been made for a period in excess
monetary benefits, beyond their due. of five years, before the order of recovery is
Another essential factual component in this bunch of issued.
cases is, that the respondent-employees were not guilty (iv) Recovery in cases where an employee has
of furnishing any incorrect information, which had led wrongfully been required to discharge duties of
the concerned competent authority , to commit the a higher post, and has been paid accordingly,

SERVICE
even though he should have rightfully been this country, has to be the basis of all governmental
required to work against an inferior post. actions. An action of the State, ordering a recovery from
(v) In any other case, where the Court arrives an employee, would be in order, so long as it is not
at the conclusion, that recovery if made from rendered iniquitous to the extent, that the action of
the employee, would be iniquitous or harsh or recovery would be more unfair, more wrongful, more
arbitrary to such an extent, as would far improper, and mor e unwar ranted, than the
outweigh the equitable balance of the corresponding right of the employer, to recover the
employer's right to recover. amount. Or in other words, till such time as the recovery
would have a harsh and arbitrary effect on the employee,
The operative part of the judgement read as under : it would be permissible in law.
Orders passed by the employer seeking recovery of TTTTTTT
monetary benefits wrongly extended to employees, can A government employee is primarily dependent on his
only be interfered with, in cases where such recovery wages, and if a deduction is to be made from his/her
would result in a hardship of a nature, which would far wages, it should not be a deduction which would make
outweigh, the equitable balance of the employer's right it difficult for the employee to provide for the needs of
to recover. In other words, interference would be called his family. Besides food, clothing and shelter , an
for, only in such cases where, it would be iniquitous to employee has to cater, not only to the education needs
recover the payment made. In order to ascertain the of those dependent upon him, but also their medical
parameters of the above consideration, and the test to requirements, and a variety of sundry expenses. Based
be applied, reference needs to be made to situations on the above consideration, we are of the view, that if
when this Court exempted employees from such recovery, the mistake of making a wrongful payment is detected
even in exercise of its jurisdiction under Article 142 of within five years, it would be open to the employer to
the Constitution of India. Repeated exercise of such recover the same. However, if the payment is made for a
power, "for doing complete justice in any cause"would period in excess of five years, even though it would be
establish that the recovery being effected was iniquitous, open to the employer to correct the mistake, it would
and therefore, arbitrar y. And accordingly, the be extremely iniquitous and arbitrary to seek a refund
interference at the hands of this Court. of the payments mistakenly made to the employee.
TTTTTTT TTTTTTT
The right to recover being pursued by the employer, will It is apparent from the conclusions drawn in Syed Abdul
have to be compared, with the effect of the recovery on Qadir's case (supra), that recovery of excess payments,
the concerned employee. If the effect of the recovery from made from employees who have retired from service, or
the concerned employee would be, more unfair, more are close to their retirement, would entail extremely
wrongful, more improper, and more unwarranted, than harsh consequences outweighing the monetary gains by
the corresponding right of the employer to recover the the employer. We are satisfied that recovery would be
amount, then it would be iniquitous and arbitrary, to iniquitous and arbitrary, if it is sought to be made after
effect the recovery. In such a situation, the employee's the date of retirement, or soon before retirement. A
right would out-balance, and therefore eclipse, the right period within one year from the date of superannuation,
of the employer to recover. in our considered view, should be accepted as the period
TTTTTTT during which the recovery should be treated as
In view of the constitutional mandate, equity and good iniquitous. Therefore, it would be justified to treat an
conscience, in the matter of livelihood of the people of order of recovery, on account of wrongful payment made

GENERAL
to an employee, as arbitrary, if the recovery is sought etc. v. Rafiq Masih (White Washer) etc., civil appeal no.
to be made after the employee's retirement, or within one 11527 of 2014 (from the Judgement and Order dated
year of the date of his retirement on superannuation. 17.1.2011 of the High Court of Punjab and Haryana at
TTTTTTT Chandigarh in Civil Writ Petition No. 16277 of 2010).
Reference : Supreme Court. State of Punjab and others —————
STATE IS BOUND TO ENSURE THAT CONSTITUTIONAL

RIGHTS OF CITIZENS ARE PROTECTED
D R. BALWANT SINGH (THEAPPELLANT) FILED
WRIT PETITION IN the Rajasthan High Court. He
retired as Director General of Police in March 1995.
personnel like others would also use the walls of the
residential houses including that of the appellant's
house to ease and nobody was in a position to tell
To settle after retirement, the appellant constructed his them not to do such activities in front of their houses.
house in a residential colony opposite to Vidhyut The appellant also noticed that these activities had
Bhawan in Jyoti Nagar in Jaipur city. The locality and, gained considerable momentum making living of the
in particular, the location of the appellant's house is residents of that area a miserable one because neither
very near to "V idhan Sabha" (S tate Assembly they were in a position to stay comfortably and
Building). peacefully inside the house or do any work due to
The appellant to his misfortune noticed that very constant noise pollution nor were in a position to
frequently, thousand/hundreds of people belonging come out of their house due to constant fear of
to political/non-political parties would gather on the insecurity and restrictions put by the State.
road approaching to Vidhan Sabha, which is in front The appellant was one of the most affected persons
of his house, with agitated mood and would undertake whose living in his house had become impossible due
their "Protests March" or "Dharna" or "Procession" to these activities and finding no solution to the
for ventilating their grievances. The protestors then problem faced, compelled him to first approach the
would use indiscriminately loudspeakers by erecting Commissioner of Police and make an oral complaint
temporary stage on the road and go on delivering but finding that no action was taken, filed a written
speeches one after the other throughout the day complaint on 21.11.2011.
which sometimes used to continue for indefinite In the complaint, the appellant narrated the
period regardless of time. Since there used to be a aforementioned grievances in detail and requested the
gathering of thousand/hundreds of people, the Commissioner of Police to take immediate effective
demonstrators would indiscriminately make use of the remedial steps to prevent such events.
compound walls of nearby houses including that of Since the Commissioner of Police did not take any
the appellant's house to ease themselves frequently action on the complaint, the appellant, on 6.3.2012,
at any time. filed a complaint before the National Human Rights
In order to regulate such events and to maintain law Commission (NHRC), New Delhi under the provisions
and order situation, the State and Police of the Human Rights Commission Act, 2005 (the Act).
Administration used to put barricades and depute The NHRC forwarded the appellant's complaint to the
hundreds of police personnel to see that no untoward Rajasthan State Human Rights Commission (RSHRC)
incident occurs. These barricades used to be installed for taking appropriate action in accordance with law .
just in front of the gates of the houses of the The RSHRC, on receipt of the complaint, registered
residents including the appellant's house. The police the same being Petition No. 12/17/1720 and by order

GENERAL
dated 24.9.2012 partly allowed the appellant's petition order on the reliefs prayed for by the
and directed the Additional Home Secretary to order petitioner be passed as the State Government
the concerned officials to effectively stop interference has already taken all requisite action within
with the right of the appellant herein to lead an its powers to ensure that the peace and quiet
independent and peaceful life and ensure that: of the petitioner living in his residential house
1. The crowd of demonstrators does not at Jyoti Nagar locality in proximity to Vidhan
assemble, on both roads opposite to the Sabha is not unduly disturbed. It would be
petitioner's house during the assembly expected that measures detailed by the
sessions. Additional Advocate General in his
2. The demonstrators are not allowed to use submissions before this Court would be
high powered loudspeakers during day and implemented strictly.
night. The appellant, felt aggrieved, filed intra court appeal
3. The road is not closed after stopping traffic before the Division Bench of the High Court out of
and traffic movement is maintained in a which this appeal arises. The Division Bench, by
sustained and orderly manner. impugned order, more or less on the same lines on
4. The policemen are stopped from urinating which the learned Single Judge had disposed of the
in the proximity of the wall of the petitioner's writ petition, decided the appellant's appeal.
house from the side of the M.L.A.'s complex The Division Bench in the concluding part of their
during the Assembly Sessions. order observed as under:
5. No barricading is done on the road In view of that assurance extended on behalf
opposite to, and near , the house of the of the State Government, the learned single
petitioner. Judge has already reached the conclusion
Despite issuance of the aforementioned directions, the that the directions issued by the Human
State did not ensure its compliance and on the other Rights Commission, Rajasthan in its order
hand, some miscreants attacked the appellant's house dated 24.9.2012, have substantially been
and hence out of disgust, the appellant was complied with. At this stage, the Division
compelled to file writ petition being S.B. Civil Writ Bench of this Court cannot give further
Petition No. 2273 of 2013 before the High Court of direction in the appeal. The State Government
Rajasthan Bench at Jaipur, seeking, appropriate reliefs obviously shall also comply with such order
by issuance of writ of prohibition/mandamus against and act in conformity with assurance given
the State and its authorities to protect the interest of before the single Bench and take special care
the appellant, his property and his peaceful living. to ensure that peace and quiet of the
Learned single Judge, by order dated 25.2.2013 petitioner, living in his residential house at
disposed of the appellant's writ petition observing Jyoti Nagar locality in proximity to Vidhan
that since the State has already taken all necessary Sabha is not unduly disturbed.
steps in the light of the directions given by the Against the judgement of the Division Bench special
RSHRC in their order dated 24.9.2012 and hence no leave petition was filed before the Supreme Court .The
more orders are called for in the writ petition. respondents had filed their counter affidavit. The
Learned Single Judge, in the concluding part of his State, on affidavit has stated that it is their duty to
order, observed as under: ensure that no harm, injury, damage or inconvenience/
………. I am of the considered view that no nuisance of any nature is caused to the life and

GENERAL
property of any citizen on account of any action and respondents were directed to ensure strict compliance
activities of other person(s) or/and State authorities of the conditions/steps mentioned in Paras 5(a) to (d)
and all personal/fundamental/property rights of the Counter Affidavit extracted above and while
guaranteed and recognized in law to every citizen are ensuring its compliance, if the respondents consider
protected to enable him to lead a meaningful life with that it needs some amendments for ensuring better
dignity and peace and to also enjoy his property . It implementation then in such eventuality, the same be
is further stated that in compliance to the order done in the larger interest of the residents of the
passed by RSHRC, the State has issued directions for concerned area and equally for the benefits of the
ensuring its compliance which are as under: residents of different parts in the State.
a. Deputy Commissioner of Police has been
put in charge of the area in order to ensure The operative part of the judgement read as under :
law and order in and around the residence of We direct the respondents to ensure strict compliance
the petitioner. of the directions contained in Para 174 to 178 of the
b. Barricading at appropriate distance from judgement of this Court in Noise Pollution (V), In Re
the residence of the petitioner so that the [2005 (5) SCC 733], and for ensuring its compliance,
movement of the residents as well as of the whatever remedial steps which are required to be taken
petitioner is not restricted as such and also by the State and their concerned department(s), the
because of the demonstration in specific. same to be taken at the earliest to prevent/check the
When the legislative assembly is in session noise pollution as directed in the aforesaid directions.
barricading is done at least 60 feet away from TTTTTTT
the residence of the petitioner.. So far as the disturbance created by the police/state
c. Mobile public toilets (two vehicles) have officials/people at large in the appellant's peaceful
been placed by the Rajasthan Municipal living in his house is concerned, in our considered view,
Corporation in the concerned area so that they do result in adversely affecting the appellant's rights
hygiene is maintained in and around the area guaranteed under Article 21 of the Constitution. The
which has been affected by regular RSHRC and the writ Court were, therefore, justified in
demonstration. Further all cautions have been entertaining the complaint under the Act and the writ
taken that the public uses such facilities and petition under Article 226 of the Constitution of India
neither police personnel on duty nor the and in consequence justified in giving appropriate
demonstrator may spoil the walls of the directions mentioned above while disposing the
petitioner by urinating. appellant's complaint/writ petition.
TTTTTTT
d. Prior permission as per the Rules are being
given by the office of Deputy Commissioner State was right on their part in not contesting the
of Police, Jaipur (South) to the demonstrators appellant's complaint/writ petition by raising technical/
and District Collector is directed to ensure legal grounds finding the appellant's grievance made
that while giving permission for in his complaint to be genuine and then rightly came
demonstration it may also check that no out with remedial suggestions to deal with the situation
instruments are allowed which may violate arising in the case.
TTTTTTT
the Rules or cause noise pollution.
The Supreme Court accepted the appeal in part. The We have perused the steps suggested by the State in their
counter affidavit and find that if the steps suggested by
impugned orders were modified in as much as
the State are implemented in letter and spirit and further

SERVICE
the implementation is observed in its proper perspective consider that it needs some amendment(s) for ensuring
is observed in its proper perspective by the State and better implementation then in such eventuality, the same
its authorities from time to time coupled with any other be done in the larger interest of the residents of the
good suggestions, if noticed, while implementing the concerned area and equally for the benefits of the
suggestions, then most of the problems presently being residents of different parts in the State.
faced by the appellant and many others like him in the TTTTTTT
concerned area(s) would be reduced to a large extent. Authorities relied upon : AIR 1954 Bombay 50.
TTTTTTT Reference : Supreme Court. Dr. Balwant Singh v.
We, accordingly, direct the respondents to ensure strict Commissioner of Police & Ors., civil appeal no. 10024 of
compliance of the conditions/steps mentioned in Paras 2014.
5(a) to (d) of the Counter Affidavit extracted above and —————
while ensuring its compliance, if the respondents
DISMISSAL FOUND TO BE DISPROPORTIONATE;

COMPENSATION AWARDED
C OLLECTOR SINGH (THE APPELLANT) WAS
WORKING AS A SEMI-SKILLED workman since
15.8.1986 in the respondent-company, namely, M/s
apology dated 25.4.1992 and by its award dated
17.9.1996, held that the termination of services of the
appellant was justified. Aggrieved by the said order,
L.M.L. Limited (Scooter Unit), Kanpur. The appellant appellant filed a writ petition before the High Court
was served with a charge-sheet on 18.4.1992 stating and vide its order dated 24.9.2012, High Court
that on that date, he threw jute/cotton waste balls dismissed the writ petition upholding the award
hitting the face of Laxman Sharma, Foreman in the said passed by the Labour Court.
company and on objecting to the same, the appellant Aggrieved by the said order , the appellant filed
is alleged to have further abused him with filthy special leave petition. The Supreme Court accepted
language and also threatened him with dire the appeal, set aside the impugned order of the High
consequences outside the premises of their factory . Court. The respondent management was directed to
On 25.4.1992, the appellant submitted an apology letter pay the amount of compensation of Rs. 5 lakh to the
stating that he had thrown piece of jute which fell on appellant.
Foreman Laxman Sharma by mistake and seeking
pardon for the same. A departmental inquiry was The operative part of the judgement read as under :
conducted on 25.5.1992 and the appellant was given Courts below appear to have proceeded on the premise
adequate opportunity to cross-examine the witnesses that in his apology letter, the appellant has admitted
as well as for putting forth his defence. The Enquiry the said incident on 18.4.1992. By perusal of the
Officer submitted his report finding that the appellant contents of the said apology letter, it is discerned that
was guilty of misconduct and on the basis of the the appellant has made admission only with respect to
enquiry report, the appellant was dismissed from the throwing of the jute/cotton waste balls by mistake and
services of the company by an order dated 24.6.1992. further stating that such a mistake would not be
Aggrieved by the order of dismissal, the appellant repeated in future and that he be pardoned for the same.
raised an industrial dispute which was registered as The letter nowhere states that the appellant was involved
Adjudication No. 178/1994 before the Labour Court, in the incident of hurling abuses and using filthy
Kanpur. The Labour Court relied upon the letter of language against his superior officer. In essence, even

GENERAL
the incident of throwing of jute/cotton waste balls at the these years the appellant must have been gainfully
Foreman has been stated as a mistake. Use of abusive employed elsewhere. Further, the appellant was born in
language is not established by the apology letter . the year 1955 and has almost reached the age of
Therefore, mere act of throwing of jute/cotton waste balls superannuation. In such circumstances, there cannot be
weighing 5 to 10 gms may not be itself lead to imposing any order of reinstatement and award of lump sum
punishment of dismissal from service. In such a situation, compensation would meet the ends of justice.
we find it difficult to fathom a reason for placing such Considering the length of service of the appellant in the
excessive reliance on the apology letter by the enquiry establishment and his deprivation of the job over the
officer appointed for the departmental enquiry as well years and his gainful employment over the years
as the courts below for justifying the punishment of elsewhere, in our view , lump sump amount of
dismissal from service. compensation of Rs. 5,00,000/- would meet the ends of
TTTTTTT justice in lieu of reinstatement, back wages, gratuity and
Having said that the punishment of dismissal from in full quit of any other amount payable to the
service is harsh and disproportionate, this Court in appellant.
ordinary course would either order reinstatement TTTTTTT
modifying the punishment or remit the matter back to Authorities relied upon :2013 (10) SCC 185, 1984 (2) SCC
the disciplinary authority for passing fresh order of 569, 1982 (3) SCC 346.
punishment. But we are deliberately avoiding the Reference : Supreme Court. Collector Singh v. L.M.L.
ordinary course. We are doing so because nearly two Ltd., Kanpur, civil appeal no. 10125 of 2014.
decades have passed since his termination and over —————
COMPLAINT AGAINST DISTANT

RELATIVES QUASHED
T HE CASE OF THE COMPLAINANT IN THE FIR
REGISTERED ON 4TH May, 2010 in the Bhelupur
Police Station at Varanasi is that her marriage was
Criminal Procedure (Cr.P.C.) with the plea that the
summoning was not justified as neither they were
named in the FIR got registered by the complainant nor
solemnized on 30th April, 2005. Her brothers who lived any individual role was attributed to them in the
abroad gave lot of dowry and cash in the marriage but criminal complaint. Their relationship with the husband
her family could not fulfill more demands raised by the of the complainant was remote as grand father of the
elder brother of her husband's father, who was the head appellant No. 1 was brother of grand father of the
of the joint family on account of which family members husband of the complainant. In such remote
of her husband were not satisfied and tortured her . On relationship, the appellants will have no interest in
account of torture, she came to her parents house with raising any demand for dowry or causing any
her child on 1st March, 2009 she gave a complaint on harassment to the complainant. Their implication was
27th April, 2010 leading to registration of the FIR on thus, clear abuse of the process of the Court.
4th May, 2010. She also filed complaint in the Court of The High Court dismissed the petition with the
Additional Chief Judicial Magistrate, Varanasi. In the observation that the statement of the complainant
said complaint, the appellant were summoned vide under Sections 200 and 202, Cr .P.C. disclosed the
Order dated 30th November, 2010. commission of offence and thus there was no illegality
Aggrieved by the said summons, the appellants moved in the order of summoning.
the High Court under Section 482 of the Code of Against the judgement of the High Court special leave

GENERAL
petition was filed. The Supreme Court accepted the husband, his parents or at best close family members may
appeal and quashed the proceedings against the be expected to demand dowry or to harass the wife but
appellants, without expressing any opinion about the not distant relations, unless there is tangible material
case of the complainant against the other accused. to support allegations made against such distant
relations. Mere naming of distant relations is not enough
The operative part of the judgement read as under : to summon them in absence of any specific role and
We have gone thr ough the FIR and the criminal material to support such role.
complaint. In the FIR, the appellants have not been TTTTTTT
named and in the criminal complaint they have been The parameters for quashing proceedings in a criminal
named without attributing any specific role to them. The complaint are well known. If there are triable issues,
relationship of the appellant with the husband of the the Court is not expected to go into the veracity of the
complainant is distant. In Kans Raj v. State of Punjab rival versions but where on the face of it, the criminal
& Ors. [2000 (5) SCC 207], it was observed: proceedings are abuse of Court's process, quashing
5…….. A tendency has, however, developed for jurisdiction can be exercised. Reference may be made
roping in all relations of the in-laws of the to K. Ramashrishna and Ors. v. State of Bihar and Anr.
deceased wives in the matters of dowry deaths [2000 (8) SCC 547], Pepsi Foods Ltd. and Anr. v.
which, if not discouraged, is likely to affect the Special Judicial Magistrate and Ors. [1998 (5) SCC
case of the prosecution even against the real 749], State of Haryana and Ors. v. Ch. Bhajan Lal and
culprits. In their over enthusiasm and anxiety to Ors. [1992 (Suppl. 1) SCC 335] and Asmathunnisa v.
seek conviction for maximum people, the parents State of A.P. represented by the Public Prosecutor, High
of the deceased have been found to be making Court of A.P., Hyderabad and Anr. [2011 (11) SCC 259].
efforts for involving other relations which TTTTTTT
ultimately weaken the case of the prosecution Reference : Supreme Court. Kailash Chandra Agrawal
even against the real accused as appears to have & Anr. v. State of U.P. & Ors., criminal appeal no. 2055
happened in the instant case. of 2014 (from the Judgement and Order dated 2.5.2011
TTTTTTT of the High Court of Judicature atAllahabad in Crl. Misc.
The Court has, thus, to be careful in summoning distant Application No. 14003 of 2011).
relatives without there being specific material. Only the —————
AN ISOLATED INSTANCE OF DOWRY DEMAND NOT ENOUGH

TO RECORD CONVICTION UNDER SECTION 304B
M ARRIAGE OF SHARANJIT KAUR (DECEASED)
WAS SOLEMNIZED with second accused-Pritam
Singh in the month of January 1997. Although PW-4 -
in-law) demanded for a gold karra as dowry. PW-4, the
father of the deceased could not meet the demand of
dowry, so he brought his daughter back to his house.
Joginder Singh (father of the deceased) gave sufficient After one month, at the request of her in-law's, Sharanjit
dowry at the time of his daughter's marriage, after two Kaur was sent back to her husband's house; but again
months of her marriage, the deceased told her father and after one month, she returned to her maternal house
Harbans Singh-the mediator of marriage that the second with the same demand of karra. Two days prior to her
accused-Pritam Singh and his family members were death i.e. on 24.8.1997, second accused-Pritam Singh took
demanding dowry and harassing her. About two months her back to the matrimonial house. On 25.8.1997 at about
after the marriage, the appellant-Baljinder Kaur (sister- 6.00 P.M., first accused-Sohan Singh came to the house

GENERAL
of PW-4 and informed him about deceased's illness. petition was filed. The Supreme Court accepted the
Immediately, PW-4 along with Darshan Singh (PW-5) and appeal, set aside the conviction under Section 304B IPC.
Harbans Singh rushed to the house of the accused and The appellant was convicted under Section 498A IPC and
found Sharanjit Kaur vomiting and in a critical condition. sentenced to undergo the period already undergone by
The deceased stated that the accused had beaten her her.
and administered some poisonous substance to her. PW-
4 and others took the deceased to the hospital at Raikot, The operative part of the judgement read as under :
but she died on the way to the hospital. In cases related to dowry death, the circumstances
PW-4 set the law in motion by lodging complaint on the showing the cruelty or harassment are not restricted to
next day i.e. 26.8.1997 at 11.00 A.M. with sub-inspector a particular instance, but normally refer to a course of
of police (PW-8) at Raikot. On the basis of the complaint, conduct. Such conduct of cruelty or dowry harassment
FIR No. 86 was registered on 26.8.1997 under Section must be "s oon before death". There should be a
304B IPC. Board of Doctors consisting of PW-1-Dr. perceptible nexus between her death and the dowry
Varinder Singh, Medical Officer and two other doctors related harassment or cruelty inflicted on her.
conducted autopsy on the body of deceased-Sharanjit TTTTTTT
Kaur, and opined that the cause of death of the From the testimony of PW-4, it is evident that the
deceased was poisoning. On completion of the appellant demanded gold karra two months after the
investigation, charge sheet was filed against first solemnization of marriage of the deceased and the
accused-Sohan Singh (father-in-law), accused No. 2- demand was not s"oon before her death". Excepting one
Pritam Singh (Husband), accused No. 3-Surjit Kaur stray instance of demand of dowry, there is no material
(mother-in-law) and accused No. 4-Baljinder Kaur (sister- on record to connect the appellant with the persistent
in-law) under Section 304B IPC. demand for dowr y. Admittedly, the appellant was
To bring home the guilt of the accused, prosecution has married to Jugraj Singh of village Diwana about six
examined nine witnesses and exhibited documents and years prior to the solemnization of marriage of Sharanjit
material objects. To substantiate their defence the Kaur with Pritam Singh. The appellant has got three
accused examined two defence witnesses. The accused children and she lives in her in-law's house in village
were questioned under Section 313 Cr.P.C. about the Diwana. DW-2 Nirmal Singh, a resident of village
incriminating evidence and materials and the accused Diwana and neighbour of the appellant had stated that
denied all of them. Upon consideration of evidence, trial the appellant resides in her in-law's house at village
court found the accused guilty and convicted all the four Diwana and denied that appellant Baljinder Kaur often
accused under Section 304B IPC and sentenced each of lives in village Burj Naklian in her father's house.
them to undergo rigorous imprisonment for seven years. TTTTTTT
Aggrieved, the accused filed appeal before the High There is no evidence showing any persistent dowry
Court. Criminal Revision was also filed by PW-4, Joginder demand or the conduct of the appellant subjecting
Singh, father of the deceased for enhancement of Sharanjit Kaur to cruelty or harassment for or in
sentence. The appeal and the revision were disposed of connection with dowry. About twenty days prior to the
by an order dated 11.8.2010 whereby the High Court occurrence, when Sharanjit Kaur went to her father's
dismissed the criminal revision and confirmed the house, she only generally stated about the dowry
conviction of the appellant and Pritam Singh while demand. She had not specifically stated about the
acquitting father-in-law and mother-in-law. demand of dowry by the appellant. In their evidence
Against the judgement of the High Court special leave PWs 4 and 5 have stated that on 25.8.1997, they went

BUSINESS
to the house of Pritam Singh in village Burj Naklian, the demand of dowry "soon before her death"by the
all the accused except appellant-Baljinder Kaur were appellant, in our view, evidence on record makes out
in the house. After the alleged demand of gold karra an offence under Section 498A IPC. So far as the
two months after the marriage, Sharanjit Kaur went to sentence, the occurrence was of the year 1997. The
her house, again came back to the marital house and appellant is having three grown up children. The
again went to her father's house and again came back appellant has already undergone sentence for a period
to the marital house. In our considered view, the alleged of about fifteen months. In the facts and circumstances
demand of gold karra about two months after the of the case, for the conviction under Section 498A, she
marriage cannot be said to constitute a proximate live is sentenced to undergo imprisonment already
link with the death of deceased Sharanjit Kaur and the undergone.
conviction of the appellant under Section 304B IPC TTTTTTT
cannot be sustained. Authorities relied upon : 2004 (13) SCC 348.
TTTTTTT Reference : Supreme Court. Baljinder Kaur v. State of
Even though there is no evidence that the deceased was Punjab, criminal appeal no. 1142 of 2011.
treated with cruelty or harassment in connection with —————
COMPLAINANT FAILED TO SHOW EXISTENCE OF LEGALLY

RECOVERABLE DEBT; ORDER OF ACQUITTAL UPHELD
Instrument Act, against the accused.
K . DAMODARA NAIDU-THE RESPONDENT
HEREIN/COMPLAINANT and K. Subramani-the
appellant/accused were working as lecturers in a
In the trial of the complainant examined himself as PW1
and examined CWs1 and 2 on his side and marked
Government College at Bangalore. The case of the documents Exh. P1 to P23. The accused examined
complainant is that the accused borrowed a loan of Rs. himself as DW1 and marked documents Exhs. D1 to D5.
14 lakhs in cash on 1.12.1997 from him to start granite The trial court held that the complainant had no source
business, promising to repay the same with 3% interest of income to lend a sum of Rs. 14 lakhs to the accused
per month on demand and issued post-dated cheque and he failed to prove that there is legally recoverable
dated 30.11.2000 for sum of Rs. 29,12,000/- which debt payable by the accused to him and that in discharge
included principal and interest and few days prior to of said liability he issued the cheque and accordingly
presentation of the cheque on its due date to bank for acquitted the accused for the alleged offence under
encashment, the accused requested him not to present Section 138 of N.I. Act. Aggrieved by the same the
the cheque and took extension of time of another three complainant preferred appeal in the High Court in
years for repayment and finally issued a cheque dated Criminal Appeal No. 368 of 2009, and the High Court
16.8.2005 for a sum of Rs. 73,83,552/- which included heard the appeal along with 9 other appeals by framing
principal and interest. The complainant presented the two legal issues which are as under:
cheque on 19.8.2005 for encashment to his banker and i) Whether an action under Section 138 of the
it was dishonored with an endorsement 'fund insufficient' N.I. Act for dishonor of cheque is the
and the complainant issued legal notice on 12.9.2005 complainant required to establish his financial
demanding repayment within 15 days from the date of capacity to lend money?
its receipt thereof and accused sent reply but failed to ii) Will not presumption under Section 139
comply with the demand and the complainant lodged of the N.I. Act accrues to the benefit of
complaint under Section 138 of the Negotiable the complainant unless the accused rebuts

SERVICE
that presumption? amount of Rs. 5 lakhs derived by him from sale of site
Relying on the ratio laid down by the Supreme Court in No. 45 belonging to him. Neither in the complaint nor
the decision in Rangappa v. Sri Mohan (supra) the High in the chief-examination of the complainant, there is any
Court answered the first issue in the negative and the averment with regard to the sale price of site No. 45.
second issue in the affirmative. It further held that the The concerned sale deed was also not produced.
orders of acquittal recorded by the trial court in all the Though the complainant was an income-tax assessee he
appeals suffer from legal infirmity as the prosecution has had admitted in his evidence that he had not shown the
been undone only on the ground that complainant had sale of site No. 45 in the income-tax return. On the
not proved his capacity to lend money and hence those contrary the complainant has admitted in his evidence
orders are liable to be set aside. Accordingly it allowed that in the year 1997 he had obtained a loan of Rs.
the appeals and set aside the respective judgements of 1,49,205 from L.I.C. It is pertinent to note that the
acquittal and remanded the cases to courts concerned alleged loan of Rs. 14 lakhs is claimed to have been
directing retrial. disbursed in the year 1997 to the accused. Further the
Against the judgement of the High Court special leave complainant did not produce bank statement to
petition was filed. The Supreme Court accepted the substantiate his claim. The trial court took into account
appeal, set aside the impugned judgement insofar as the the testimony of the wife of the complaint in another
appellant was concerned and the judgement of acquittal criminal case arising under Section 138 of the N.I. Act
passed by the trial court was restored. in which she has stated that the present appellant/
accused had not taken any loan from her husband. On
The operative part of the judgement read as under : a consideration of entire oral and documentary evidence
In the present case the complainant and the accused the trial court came to the conclusion that the
were working as Lecturers in a Government college at complainant had no source of income to lend a sum of
the relevant time and the alleged loan of Rs. 14 lakhs Rs. 14 lakhs to the accused and he failed to prove that
is claimed to have been paid by cash and it is disputed. there is legally recoverable debt payable by the accused
Both of them were governed by the Government Servants' to him.
Conduct Rules which prescribes the mode of lending and TTTTTTT
borrowing. There is nothing on record to show that the Reference : Supreme Court. K. Subramani v. K.
prescribed mode was followed. The source claimed by Damodara Naidu, criminal appeal no. 2402 of 2014.
the complainant is savings from his salary and an —————
VICARIOUS PUNISHMENT NOT

PERMISSIBLE IN LAW
T HE RESPONDENT-UNION TERRITORY OF
CHANDIGARH HAD invited applications from
eligible persons for recruitment to the post of Constables
advertisement (in 1997), were exempted from applying
afresh.
The appellant, Joginder Singh, who had also applied in
in the year 1997. The said selection was quashed by the the year 1997, was also called in 2001 and was among
High Court of Punjab and Haryana. However, in the year the 40 candidates who had applied were declared as
2001, A fresh selection process was started by the successful candidates. The appellant was medically
respondents, as per the decision of the Administration examined and was called for an interview as he was
of the first respondent wherein it has stated that the found fit for selection to the post of Constable. However,
candidates who had applied in response to the previous after verification of his antecedents and character from

SERVICE
his native village, it was found that he was involved in initiated against the appellant. We are of the opinion
a case with FIR No. 200 dated 14.4.1998, under the that the acquittal of the accused from the criminal case
provisions of Sections 148/149/323/325/307 IPC a criminal was an honourable acquittal. Therefore, the appellant
case was registered at Police Station Sadar Bhiwani. After should not be deprived from being appointed to the post,
the trial was conducted by the Additional Session in the public employment, by declaring him as
Judge, Bhiwani, the appellant was acquitted from the unsuitable to the post even though he was honourably
charges leveled against him on 4.10.1999. The appellant acquitted in the criminal case registered against him.
filed Original Application before the CAT, Chandigarh, TTTTTTT
for issuing a direction to the respondent for issuance of The appellant has honestly disclosed in his verification
an appointment order in view of his selection to the post application submitted to the selection authority that
in the selection process. there was a criminal case registered against him and
The Central Administrative Tribunal, Chandigarh after that it ended in an acquittal on account of compromise
hearing the parties passed an order dated 12.3.2003, between the parties involved in the criminal case, he
allowing the Original Application of the appellant and cannot be denied an opportunity to qualify for any post
directed the respondents to appoint the appellant to the including the post of a Constable.
post of Constable within a period of 30 days from the TTTTTTT
date of receipt of the certified copy of the order. The rules lay down the criteria that clean antecedents
Aggrieved by the order of the CAT, the respondent- and good moral character is indispensable for a
Union Territory filed C.W.P. No. 5909 CAT of 2003 before candidate to even fall within the zone of consideration.
the High Court of Punjab and Haryana at Chandigarh Further, he had been acquitted on 4.10.1999, i.e. much
questioning the correctness of the same. The High Court before he was called for the interview/medical
vide its common order dated 24.3.2008 has set aside the examination/written test. Further, as per Rule 12.18,
order of the CAT and allowed the writ petition. emphasis has been laid on the freedom and otherwise
The High Court has opined that the order of the CAT from conviction. An interpretation of the Rules clearly
passed in favour of the appellant, suffers from illegality, indicate that an acquittal in a criminal case will qualify
which cannot be sustained in law and accordingly set him for appointment to the post of Police Constable, as
aside the same. Hence, this appeal has been preferred the appellant had successfully qualified the other
by the appellant urging various legal grounds. requisites required for his selection.
TTTTTTT
Against the judgement of the High Court, Special Leave
Petition was filed. The Supreme Court upheld the The Police authorities cannot be allowed to sit in
judgement and order of the CAT. The respondents were judgement over the findings recorded by the Sessions
directed to comply with the same by issuing Court in its judgement, wherein the appellant has been
appointment letter to the appellant. The Supreme Court honourably acquitted. Denying him the appointment to
held that the High Court has committed a grave error the post of a Constable is like a vicarious punishment,
both on facts and in law and has fail to follow the legal which is not permissible in law, therefore, the impugned
principles laid down by Supreme Court. judgement and order passed by the High Court is
vitiated in law and liable to be set aside.
The operative part of the judgement read as under : TTTTTTT
The relevant consideration to the case is the The alleged past conduct of the appellant in relation
antecedents of the candidate for appointing him to the to the criminal case will not debar or disqualify him for
post of Constable. Adverting to the criminal proceeding the post of the Constable for which he was successfully

GENERAL
selected after qualifying the written test, medical test Reference : Supreme Court. Joginder Singh v. Union
and the interview conducted by the selection authority. Territory of Chandigarh & Ors., civil appeal no. 2325 of
Further, as stated by us earlier , there has been no 2009 (from the Judgement and Order dated 24.3.2008 of
concealment of any relevant fact from the respondents the High Court of Punjab and Haryana at Chandigarh in
by the appellant. The respondents were thus not justified Civil Writ Petition No. 5909 CAT of 2003).
in denying the said post to the appellant. —————
TTTTTTT
TWO LIFE SENTENCES HAS TO

RUN CONCURRENTLY
B RIEFLY STATED, CASE OF THE PROSECUTION
IS THAT THE 1ST accused/appellant married
Lillikutty and their marriage was solemnized on 11.2.1988
15 were examined and Exs. P-1 to P-25 were marked and
MOs 1 to 18 were identified. The accused were
questioned under Section 313 Cr.P.C. and they denied
and they continued their stay in House bearing No. MP. all the incriminating evidence and circumstances brought
VIII/84 of Karulayai Amsom along with other accused, out in evidence against them.
who are the father, mother and brother of the appellant. Upon consideration of evidence, the trial court convicted
The allegation leveled is that in the matrimonial hose, the appellant/1st accused under Section 498A IPC and
the appellant/1st accused and other accused ill-treated sentenced him to undergo two years of rigorous
and tortured Lillikutty, compelling her to take the extreme imprisonment and to pay a fine of Rs. 5,000/- and in
step of putting and end to her life by committing suicide. default of payment of fine, to undergo further
During the marital life, Lillikutty had a premature delivery. imprisonment of one year. For the offence punishable
When she became pregnant again in 1993, it is alleged under Section 306 IPC, the trial court sentenced him to
that A-1 provided her with some tablets and Lillikutty undergo rigorous imprisonment for seven years and to
had a miscarriage. During her marital life Lillikutty pay a fine of Rs. 50,000/- and in default of payment of
delivered a child who did not live long. On 23.2.1996 fine, to undergo further imprisonment of three years. The
Lillikutty poured kerosene oil on herself and also drank substantive sentences of the appellant were ordered to
some, which was later cleared away. On 23.2.1996, a run consecutively. Accused 2 to 4 were convicted under
mediation talk had been scheduled and PW-1 and the Section 498A IPC and were sentenced to undergo
relatives of Lillikutty were also to attend the mediation imprisonment for two years and to pay fine of Rs. 5,000/
talks but when the meeting was so scheduled. Lillikutty - with default clause of one year . The High Court
committed suicide by hanging. On the first information confirmed the conviction and also the sentence of
by PW-1, a neighbour of the accused, law was set in imprisonment imposed upon all the accused.
motion. Initially FIR was registered for unnatural death Being aggrieved, the appellant filed special leave petition
under Section 174 Cr.P.C. and on subsequent complaint, in the Supreme Court. The Supreme Court issued notice
the same was altered to one for the offences punishable only on the limited question as to whether the sentence
under Sections 498A and 306IPC. PW-4 conducted was made to run concurrently , instead of running
autopsy and submitted the post-mortem report. PW-14, consecutively. The Supreme Court by order dated
investigating officer, had taken up the investigation and 18.7.2014 observed that Section 31 Cr.P.C. was not
seized the documents and material objects and examined noticed by the Supreme Court in Mohd. Akhtar Hussain
the witnesses and laid the charge sheet against the alias Ibrahim Ahmed Bhatti v. Asstt. Collector of
appellant and other accused. In the trial court, PWs 1 to Customs (Prevention), Ahmedabad & Anr. [1988 (4) SCC

GENERAL
183] and referred the matter to be considered by a larger In Manoj alias Panu v. State of Haryana [2014
Bench in order to settle the law. The order of reference (2) SCC 153] the Bench simply followed the
is as follows: earlier judgement.
The petitioner herein was concurrently From the judgement in Mohd. Akhtar Hussain
convicted for offences under Section 498A and alias Ibrahim Ahmed Bhatti case (supra), it
Section 306 IPC and sentenced to undergo appears that Section 31 of the Criminal
rigorous imprisonment for 2 years and 7 years Procedure Code was not noticed by this Court
respectively on the above-mentioned two when this Court observed as extracted above.
counts apart from paying certain amounts of Section 31 (1) of the Cr.P.C. reads as follows:
fine, the details of which may not be necessary. 31. Sentence in cases of conviction of several
Both the Courts directed that the sentences offences at one trial.
should run consecutively. (1) When a person is convicted at one trial of
By an order dated 31st March, 2014, notice was two or more offences, the Court may, subject to
issued limited only to the question whether the the provisions of Section 71 of the Indian Penal
direction whereby the sentences were ordered Code (45 of 1860), sentence him for such
to run consecutively is legally tenable. offences, to the several punishments prescribed
Learned counsel for the petitioner has placed therefore which such Court is competent to
reliance on the judgement of this Court in Mohd inflict; such punishments when consisting of
Akhtar Hussain alias Ibrahim Ahmed Bhatti v. imprisonment to commence the one after the
Assistant Collector of Customs (Prevention), expiration of the other in such order as the Court
Ahmedabad and Another [supra] and Manoj may direct, unless the Court directs that such
alias Panu v. State of Haryana [2014 (2) SCC 153] punishments shall run concurrently.
and argued that when and accused is found (2)………..
guilty of more than one offence at the same (3)………..
trial, though separate conviction is recorded on Therefore, the statutory stipulation is clear that
each of the different charges and different normally sentences in such cases are to run
sentences are imposed, such sentences are consecutively.
required to be directed to run concurrently. Hence we find it difficult for us to accept the
This Court in Mohd. Akhtar Hussain alias statement of law made in the above mentioned
Ibrahim Ahmed Bhatti case (supra) at para (10) two cases. We, therefore, deem it appropriate
held as under: that the matter be considered by a Bench of
The basic rule of thumb over the years has appropriate strength to settle the law. We direct
been the so-called single transaction rule for the Registry to place the papers before Hon'ble
concurrent sentences. If a given transaction the Chief Justice of India for appropriate orders.
constitutes two offences under two enactments The Supreme Court answered the Reference by holding
generally, it is wrong to have consecutive that Section 31 Cr.P.C. leaves full discretion with the
sentences. It is proper and legitimate to have Court to order sentences for two or more offences at one
concurrent sentences. But this rule has no trial to run concurrently, having regard to the nature of
application if the transaction relating to offences offences and attendant aggravating or mitigating
is not the same or the facts constituting the two circumstances.
offences are quite different. Keeping in view the totality of the facts and

GENERAL
circumstances of the case, the sentences imposed on the If the Court does not direct that the sentences shall run
appellant were ordered to run concurrently and the concurrently, then the sentences will run consecutively
appeal was disposed of with the above modifications. by operation of Section 31 (1) Cr .P.C. There is no
question of the convict first undergoing the sentence of
The operative part of the judgement read as under : imprisonment for life and thereafter undergoing the rest
In Section 31(1) Cr.P.C., since the word "may"is used, of the sentences of imprisonment for fixed term and any
in our considered view, when a person is convicted for such direction would be unworkable. Since sentence of
two or more offences at one trial, the Court may exercise imprisonment for life means jail till the end of normal
its discretion in directing that the sentence for each life of the convict, the sentence of imprisonment of fixed
offence may either run consecutively or concurrently term has to necessarily run concurrently with life
subject to the provisions of Section 71 IPC. But the imprisonment. Likewise if two life sentences are imposed
aggregate must not exceed the limit fixed in proviso (a) on the convict, necessarily, Court has to direct those
and (b) of sub-section (2) of Section 31 Cr.P.C. that is- sentences to run concurrently.
(i) it should not exceed 14 years and (ii) it cannot TTTTTTT
exceed twice the maximum imprisonment awardable by In the facts and circumstances of the present case, in
the sentencing court for a single offence. our view, the sentences imposed on the appellant
TTTTTTT could be ordered to be run concurrently. At the time
The words "u nless the court directs that such of marriage, the appellant was employed as a Painter
punishments shall run concurrently"occurring in sub- at Delhi and after marriage, it is stated that the
section (1) of Section 31, make it clear that Section 31 appellant had secured an employment in Gulf
Cr.P.C. vests a discretion in the Court to direct that the countries and used to visit India once in two years
punishment shall run concurrently, when the accused only. It is brought on evidence that in a period of eight
is convicted at one trial for two or more offences. It is years from 1988-1996, he came on leave to India for
manifest from Section 31 Cr.P.C. that the Court has the only four times and finally he visited India while he
power and discretion to issue a direction for concurrent was on leave during January-February 1996. The
running of the sentences when the accused is convicted appellant also appears to have taken efforts for
at one trial for two or more offences. mediation to settle the differences and the mediation
TTTTTTT was scheduled to take place on 23.2.1996; but
In case, the Court directs sentences to run one after the Lillikutty committed suicide on the same day. Keeping
other, the Court has to specify the order in which the in view the totality of the facts and circumstances of
sentences are to run. If the Court directs running of the case, the sentences imposed on the appellant for
sentences concurrently, order of running of sentences is the offences punishable under Sections 498A and
not required to be mentioned. Discretion to order 306IPC are ordered to run concurrently and the
running of sentences concurrently or consecutively is appeal is disposed of with the above modifications.
judicial discretion of the Court which is to be exercised TTTTTTT
as per established law of sentencing. The court before Authorities relied upon :2014 (8) Scale 96, 2012 (11) SCC
exercising its discretion under Section 31 Cr.P.C. is 629.
required to consider the totality of the facts and Reference : Supreme Court. O.M. Cherian @
circumstances of those offences against the accused Thankachan v. State of Kerala & Ors., criminal appeal
while deciding whether sentences are to run no. 2387 of 2014.
consecutively or concurrently. —————
TTTTTTT

LIGHTER SIDE OF LAW
LAW
Excerpts taken from court proceedings that's really DID YOU KNOW?
silly and funny too. These are actually things people
said in court, word for word, taken down and n Greece
published by court reporters who had the torment of One could not wear a hat in the Olympic
staying calm while these exchanges were actually
Stadium in ancient times as it would obstruct
taking place.
someone’s view.
Q : What gear were you in, at the moment of impact?
A : Gucci sweats and Reebok!
n Iceland
Q : This myasthenia gravis, does it effect your
memory at all?
It was once against the law to have a pet dog
A : Yes. in a city in Iceland.
Q : And in what ways does it effect your memory?
A : I forget!
Q : You forget? Can you give us an example of n Indonesia
something you've forgotten???
No woman is allowed to be taller than her
Q : How old is your son, the one living with you? husband – if necessary she must chop off a
A : Thirty-three or thirty-six, I can't remember which. section of her legs.
Q : How long has he lived with you?
A : Forty-three years.
Q : Now Doctor, isn't it true when a person dies in

n Greece
his sleep, he doesn't know about it until the next It is legal to strike anyone from Turkey with a
morning? Phalanx (small sword) except on alternate
A : Did you actually pass the bar exam?
Monday.
Q : So, the date of your conception of your baby was Disclaimer - Lawteller T eam is not responsible for the
actuality of the above information as available in the public
July 9th?
domain.
A : Yes.
Q : And what were you doing at that time? MIND SPRINT SOLUTION
N E C N A R A E P M O C
18
O C
I N R E C E D
17
T A T R
I R C E O
N A T C I L E D I R T
16
G E N E L U U
O B E C N E D N E C S E D N O C
15
C R R R R E O
14 13
R E N O X E T T E L
12
R F F C N T R
11 10
P M I T I G E L Y R U J R E P
9 8 7
L D M T
6
R A N
E T S E V I S S I M
5 4
T I
N D
I E
3
R
"Hurry up with your investigation - he's lying on the remote." E I Z L I O S S A

2
H
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GENERAL

ESCALATION OF PRICE CANNOT BE A VALID GROUND

A . RAMALINGAM (THE RESPONDENT-FIRST

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DIRECTION FOR "FURTHER INVESTIGATION" DOES

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COUNTER CLAIM REMAINS ALIVE EVEN

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ISSUING NSC IN TRADE NAME WAS

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UN REPORTS PROGRESS TOWARD TORTURE PREVENTION INAFGHANISTAN

CANADA SUPREME COURT STRIKES DOWN P ART OF ANTI-MONEY

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NEPAL FORMS COMMISSIONS TO PROBE WAR CRIMES

FEDERAL JUDGE DISMISSES GOOGLEANTITRUST SUIT

CALIFORNIA PLASTIC BAG BAN HALTED BY REFERENDUM PETITION

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AUSTRALIA PM TO TOUGHEN CITIZENSHIP LAWS TO CURTAIL TERRORISM

FEDERAL JUDGE REJECTS BP PETITION TO REDUCE OIL SPILL FINE

QUOTE from COURT

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QUOTE from COURT

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O N 6.6.2001 THE COMPLAINANT OF THE CASE

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NO ONE CAN BE PUNISHED MERELY FOR

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QUOTE from COURT

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STATE IS BOUND TO ENSURE THAT CONSTITUTIONAL

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DISMISSAL FOUND TO BE DISPROPORTIONATE;

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COMPLAINT AGAINST DISTANT

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AN ISOLATED INSTANCE OF DOWRY DEMAND NOT ENOUGH

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