Terrorist and Disruptive Activities (Prevention) Act, 1987 — Sections 3(1) & 19 — Death sentence — Commuting to life imprisonment — Consideration of defective investigation and circumstances of accused — Caste massacre in which 35 murdered by slitting the throats and seven inured — Designated Court awarded death sentence — Held, as held by this Court in earlier batch of trial on same FIR that investigation was defective — It was a caste retaliation against Ranveer Sena — Though action was sponsored by MCC, but none of the witness deposed connection of appellants with MCC — It is possible that appellants might join in the incident due to their lower caste and poverty — No harm was caused to women and children — Though the death sentence has been confirmed in Krishna Mochi on same FIR but the case of appellants are different and the minority view in that case was against confirmation of death sentence — Criminal Procedure Code, 1973 — Section 354(2) — Penal Code, 1860 — Sections 302 & 149.
Bachan Singh v. State of Punjab, 1980 (2) SCC 684, Machi Singh v. State of Punjab, 1983 (3) SCC 470, Swamy Shraddananda @ Murali Manohar Mishra v. State of Karnataka reported in AIR 2008 SC 3040, Santosh Kumar Satishbhushan Bariyar v. State of Maharashtra, 2009 (6) SCC 498, Relied.
Krishna Mochi and Others v. State of Bihar reported in 2002 (6) SCC 81, Referred.
HELD: Then comes the question of sentence to appellant nos.1 and 3 i.e. Vyas Ram and Bugal Mochi. It is true that in Krishna Mochi (supra), by a majority of two versus one, the crime in the instant case was held to be one which deserved the extreme penalty of death. This was apparently on the lines of the judgment of the Constitution Bench in Bachan Singh v. State of Punjab, 1980 (2) SCC 684 as being one belonging to the rarest of the rare category. We have, however, to note that as far as the present trial is concerned, the occurrence of the crime is of February 1992 and the charges were framed in May 2004. More than nine years have gone thereafter also, and the appellants have been facing the trauma of the crime and the trial all this period. Besides, as noted earlier, the manner in which the investigation has proceeded was far from satisfactory. In all cases where death sentences are to be awarded, the circumstances of the accused are also required to be considered. The present case there was more or less a caste war between the haves and the have nots. The appellants belonged to the latter category. The present incident was claimed to be a retaliatory attack by the members of MCC. They are essentially the persons belonging to the scheduled castes and backward classes, and economically weaker and exploited sections of society. The attack was supposed to be in retaliation to an earlier attack by the Bhumihar community, led by the Ranvir Sena. It must also be noted that none of the witnesses have attributed to these appellants that they belonged to the MCC. It is quite possible that due to their poverty and caste conflict in the villages they were drawn in the melee and participated in the crime. At the same time no harm was done to women and children. Appellant No.1 Vyas Ram worked with one Jamuna Singh. No harm was done to any member from his family either. This is not to say that such acts are to be condoned, but at the same time we have to consider as to whether after taking into account these circumstances of the accused, death sentence was warranted. We do not think so.
(Para 32)
In this connection we must state that though the FIR was common, the testimonies in the two cases are in fact different, and on the analysis thereof we have come to the conclusion that one of the accused is not guilty, however, the other two are, but considering the circumstances in their case the death sentence is not warranted.
(Para 33)
Even with respect to the death sentence awarded in Krishna Mochi (supra), having considered the dissenting opinion rendered by Hon’ble Shah J., we must note the approach adopted by this Court.
(Para 34)
As far as appellant nos.1 and 3, accused Vyas Ram and Bugal Mochi are concerned, although their conviction under the offences for which they were charged is upheld, the death sentence awarded to them is commuted to imprisonment for life, which is to mean the rest of their natural life.
(Para 35)
Vyas Ram v. State of Bihar [Bench Strength 2], Criminal Appeal No. 791/2009 (20/09/2013), 2013(11) SCALE 645 [A.K. Patnaik, J.: H.L. Gokhale, J.] <<LAWPACK SUPREME COURT>>
Terrorist and Disruptive Activities (Prevention) Act, 1987 — Section 20-A — Trial before Special Court — Benefit of amendment — Applicability of provision — Held, the amendment of 1993 would apply to the cases which were pending investigation on 22.5.1993, and in which the challan had not been filed in Court till then — Present case not in this category.
HELD: Besides as far as applicability of Section 20A is concerned, the submission on behalf of the appellant is not wholly correct. In fact at the end of paragraph 25 of Hitendra Thakur (supra), this court has held that the amendment of 1993 would apply to the cases which were pending investigation on 22.5.1993, and in which the challan had not been filed in Court till then. The present case was registered on 13.02.1992, the charge-sheet was submitted on 12.02.1993, and the cognizance was taken 6 days thereafter i.e. on 18.02.1993. Thus, all these steps were taken before coming into force of the amendment act. Therefore, the appellants cannot claim the benefit of the amendment, nor does the case cited by them come to their rescue.
(Para 13)
Vyas Ram v. State of Bihar [Bench Strength 2], Criminal Appeal No. 791/2009 (20/09/2013), 2013(11) SCALE 645 [A.K. Patnaik, J.: H.L. Gokhale, J.] <<LAWPACK SUPREME COURT>>
Penal Code, 1860 — Section 149 — Unlawful assembly — Act attracting offence — Liability of every member — Held, the provision required to attract liability in case only participation of a member to further common object or he has knowledge of such object — As per Masalti’s case participation is sufficient to held vicariously liable, however, as per Baladin’s case, if a person is a mere bystander, and no specific role is attributed to him, he may not come under the wide sweep of Section 149 — At the same time, we must also note that in that very matter where there was evidence of an injured witness, deposing against the accused, the same was accepted.
Masalti v. State of U.P. AIR 1965 SC 202, Baladin v. State of U.P AIR 1956 SC 181, Krishna Mochi and Others v. State of Bihar 2002 (6) SCC 81, Jamuna Chaudhary v. State of Bihar AIR 1974 SC 1822, Relied.
HELD: Thus, the defining ingredient for the involvement of the accused would be the common intention. Section-149 of I.P.C makes it amply clear that if an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or such as the members of that assembly knew to be likely to be committed in prosecution of that object, every person who, at the time of the committing of that offence is a member of the same assembly, is guilty of that offence. Masalti (supra) emphatically brings home the principle that the punishment prescribed by Section-149 is in a sense vicarious, and does not always proceed on the basis that the offence has been actually committed by every member of the unlawful assembly. At the same time we cannot ignore the law as laid down in Baladin (supra) that if a person is a mere bystander, and no specific role is attributed to him, he may not come under the wide sweep of Section 149.
(Para 18)
The submission of the appellants which does merit a close scrutiny and a thorough examination by the court is, however, concerning the allegedly faulty investigation, especially the failure of the prosecution to conduct a Test Identification Parade, and the delay in recording the statements of the witnesses which according to them rendered the entire alleged identification of the appellants doubtful. The appellants claim to be entitled to the benefit of doubt as it is dangerous to uphold the death sentence of the appellants on such shaky evidence. The appellants draw support from a judgment in the case of Jamuna Chaudhary v. State of Bihar reported in AIR 1974 SC 1822. In that case benefit of doubt was given to some of the accused in view of the unsatisfactory material on record. At the same time, we must also note that in that very matter where there was evidence of an injured witness, deposing against the accused, the same was accepted. The appellants have also drawn the attention of the court to the fact that a set of persons who were accused in the same case had been acquitted in the case of Bihari Manjhi and Others v. State (supra). However, here the bone of contention is with respect to their participation itself, in the light of the deficiency in the investigation. Those deficiencies also find a place in Hon’ble Mr. Justice Shah’s observations in the Krishna Mochi case (supra).
(Para 19)
Vyas Ram v. State of Bihar [Bench Strength 2], Criminal Appeal No. 791/2009 (20/09/2013), 2013(11) SCALE 645 [A.K. Patnaik, J.: H.L. Gokhale, J.] <<LAWPACK SUPREME COURT>>
Terrorist and Disruptive Activities (Prevention) Act, 1987 — Sections 3(1) & 19 — Terrorist activities — Defective investigation — Effect — Appellants were convicted and awarded death sentence — Informant was subsequently involved in anther Case and could not produced for examination — Neither case diary of initial IO was produced nor he was examined in the case — Investigation has been carried on oral instruction of SP without any written order as required under the Act — SP has recorded the confession of one of accused, but he could not identified him in the dock — Subsequent investigation was carried by inspector, a lower post than prescribed under the Act — SHO of concerned police station admitted that he was accused of murder case of a close relative of one of accused — Held, investigation was a defective investigation, therefore, Hon’ble Mr. Justice Shah (minority) had set aside conviction of other accused in earlier set of trial on same FIR — Delay in recording the statements of witnesses by the Investigating Officer and absence of the Test Identification Parade were also instrumental in demolishing the credibility of the investigation.
Kamaksha Rai v. State of U.P., reported in 1999 (8) SCC 701, Binay Kumar Singh v. State of Bihar reported in 1997(1) SCC 283, Referred.
HELD: Suresh Chander Sharma (PW21) who had taken over the investigation after Ram Japit Kumar, had admitted in his cross examination that the entire investigation had been conducted by Ram Japit Kumar. PW 21 had not recorded the statements of many witnesses including the three chowkidaars who were the first to meet inspector Vijay Pratap Singh the then Station Incharge, and report the incident to him when he had come on patrolling, and heard the sounds of firing and explosion. The investigation conducted by Ram Japit had never been brought on record nor was his case diary submitted. PW21 had also admitted that the case diary was not with him, and that he had not seen the notification under TADA (para 61). It was also admitted that investigation has been done on the oral instructions of the Superintendent of Police without the necessary written orders from him or Director General of Police.
(Para 20)
According to the statement of the Superintendent of Police Sunil Kumar, he received the information of Bihari Manjhi’s arrest on 27.2.1992, and he went there to record the statement. He claims to have met Bihari Manjhi and told him to make his statement without fear or favour, and Bihari Manjhi did so. However, the same officer was not able to identify Bihari Manjhi in the Court. Moreover, the police personnel of P.S. Tekari were busy in making arrests, and a number of V.I.Ps were visiting. So the investigation had been entrusted to Suresh Chander Sharma, Inspector from Chandauti Police Station. Surprisingly, he does not remember whether written permission, to invoke TADA was taken or not, and whether under TADA the investigation had to be carried out only by an officer of rank of DSP or above.
(Para 21)
He admitted that he was an accused in the murder case of Vasuki Yadav, nephew of Vakil Yadav, (one of the accused in the present case), and had filed a petition before the Supreme Court for quashing the cognizance taken against him in that case.
(Para 22)
Hon’ble Mr. Justice Shah had drawn support from the principle laid down in Masalti’s case to emphasise the impossibility of basing the conviction on such shaky investigation.
(Para 23)
The delay in recording the statements of witnesses by the Investigating Officer and absence of the Test Identification Parade were also instrumental in demolishing the credibility of the investigation, and thus led to Hon’ble Mr. Justice Shah’s dissenting opinion.
(Para 24)
Vyas Ram v. State of Bihar [Bench Strength 2], Criminal Appeal No. 791/2009 (20/09/2013), 2013(11) SCALE 645 [A.K. Patnaik, J.: H.L. Gokhale, J.] <<LAWPACK SUPREME COURT>>
Civil Procedure Code, 1908 — Order 21 Rules 90 & 83 — Execution — Inordinate delay in recovery — Judgment debtor failed to pay despite several opportunities — Suit was filed in 1955 and after passing final decree execution was filed in 1962 — Attachment was made for execution but sale was deferred on application of JD to make payment but payment was not made — Thereafter, property was auction sold, but again objection was filed on ground that sale was effectuated on lower price — Objection was allowed by Execution Court — However, Lower appellate court set aside the objection — In second appeal, High Court stayed the sale subject to condition that appellant JD should pay entire decretal amount within prescribed time — No payment was made within time, consequently stay was vacated automatically — Challenged — Plea of appellant that now entire decretal amount has been deposited in Court — Held, decree holders are unable to get the decretal amount despite filing execution in 1962 — Sufficient opportunities had been provided to the judgment debtor to pay the decretal amount but every time the appellant failed to pay the decretal amount within the period prescribed, this matter should have an end at this stage and therefore, we dismiss the appeal — Practice and procedure — Much delay in execution.
HELD: We have heard the learned counsel and have also considered the facts of the case. It is really deplorable that the heirs of the plaintiff who had filed the original suit somewhere in 1955 are still unable to get the decretal amount. In our opinion, sufficient opportunities had been provided to the judgment debtor to pay the decretal amount but every time the appellant failed to pay the decretal amount within the period prescribed, this matter should have an end at this stage and therefore, we dismiss the appeal and the stay granted by this Court also stands vacated.
(Para 13)
Manju Swarup v. Bhupenshwar Prasad [Bench Strength 2], Civil Appeal No. 8398/2013 (Arising out of SLP (C) No. 6094/2007) (20/09/2013), 2013(11) SCALE 659 [Anil R. Dave, J.: A.K. Sikri, J.] <<LAWPACK SUPREME COURT>>
Environment (Protection) Act, 1986 — Sections 5 & 3 — Transportation of animals and functioning of slaughter houses — Direction by Central Government — Direction for strict compliance — Held, in compliance of order passed by this Court dated 23.8.2012 and 9.7.2013, the Ministry of Environment and Forrest has formulated detail guidelines regarding transportation of animals and functioning of slaughter house, the text of the guidelines is extracted in this judgment — Some States have filed action taken report (ATR) in compliance of the previous orders — All States and other concerns are directed for strict compliance of guidelines of MoEF and those States who have not filed ATR are directed to file within three months — Prevention of Cruelty to Animals (Establishment and Registration of Societies for Prevention of Cruelty to Animals) Rules, 2000 — Solid Wastes (Management and Handling) Rules, 2000 — Prevention of Cruelty to Animals (Slaughter House) Rules, 2000.
HELD: We reiterate the importance of proper implementation of the provisions of the Prevention of Cruelty to Animals (Establishment and Registration of Societies for Prevention of Cruelty to Animals) Rules, 2000, the Environment Protection Act, 1986, the Solid Wastes (Management and Handling) Rules, 2000 and the Prevention of Cruelty to Animals (Slaughter House) Rules, 2000. Over and above, it is also of extreme importance that all the State Governments, the State Animal Welfare Boards, Pollution Control Board etc. should scrupulously follow the guidelines issued by the MoEF, in obedience to the direction given by this Court on 10.10.2012.
(Para 3)
We direct all the State Governments/UTs and the Committees constituted to effectively follow the above-mentioned guidelines. For giving further directions, initially we are inclined to direct the States of Tamil Nadu, Karnataka, Kerala, Delhi, Maharashtra and Uttar Pradesh to implement the provisions of the Act mentioned earlier as well as the guidelines issued by the MoEF, and file an action taken report within three months. Post after three months along with the Action Taken Reports. Communicate the order to the Chief Secretaries of the above-mentioned States.
(Para 4)
Laxmi Narain Modi v. Union of India [Bench Strength 2], Writ Petition (C) No. 309/2003 (27/08/2013), 2013(11) SCALE 313: 2013(12) JT 348 [K.S. Radhakrishnan, J.: Pinaki Chandra Ghose, J.] <<LAWPACK SUPREME COURT>>
Bihar Municipal Officers and Servants Pension Rules, 1987 — Rules 4(ii) & 1 — Statutory right to pension — Denial by adopting resolution, Legality of — Pension Rules, 1987 came into effect but Municipal Corporation, disabled two employees/petitioners from exercising their option, by taking view that Rules were not applicable until adopted resolution to give pensionary benefits to its employees who had retired from service from the year 2000 onwards in accordance with Rules — Held, resolution was clearly in contravention of the Rules — Municipal Corporation cannot take advantage of such a disability caused by itself and deny their statutory right to pension under the Rules — Moreover, two employees have also not received part or whole of provident fund contribution although they have retired in 1996 and 1997 and hence they could not have been deemed to have exercised their option to retain existing provident fund — Impugned judgment set aside and appellants to be given the pensionary benefits including pension and family pension, as the case may be, in accordance with the Rules — Appeals allowed — Service and Labour Law — Pensionary benefits.
(Para 8 & 9)
Sanchari Devi v. Ara Municipal Corporation [Bench Strength 2], Civil Appeal Nos. 4802-4803/2013 Arising out of Special Leave Petition (C) Nos. 14922-14923/2009 (25/06/2013), 2013(9) SCALE 694 [A.K. Patnaik, J.: Ranjan Gogoi, J.] <<LAWPACK SUPREME COURT>>
Bihar Municipal Officers and Servants Pension Rules, 1987 — Rules 1 & 4(i) — Entitlement to pension under — Held, all permanent employees of Municipalities and Notified Area Committees had a statutory right to get pension if they had not retired before the date of effect of the Rules and had not received part or whole of provident fund contribution.
(Para 6)
HELD: A bare reading of the Rules 1 and 4(i) of the Rules makes it clear that the Rules apply to permanent employees of the Municipalities and Notified Area Committees in the State of Bihar. Thus, all permanent employees of Municipalities and Notified Area Committees including the Ara Municipal Corporation were statutorily entitled to the pension under the Rules. Rule 4(ii) of the Rules provided further that municipal employees who retired before the date of effect of the Rules and received part or whole amount of provident fund contribution will not be eligible for pension. Hence, Municipal employees who had retired before the date of effect of the Rules and had received part or whole of provident fund contribution were not entitled for the pension under the Rules. In other words, all permanent employees of Municipalities and Notified Area Committees including the Ara Municipal Corporation had a statutory right to get pension if they had not retired before the date of effect of the Rules and had not received part or whole of provident fund contribution.
(Para 6)
Sanchari Devi v. Ara Municipal Corporation [Bench Strength 2], Civil Appeal Nos. 4802-4803/2013 Arising out of Special Leave Petition (C) Nos. 14922-14923/2009 (25/06/2013), 2013(9) SCALE 694 [A.K. Patnaik, J.: Ranjan Gogoi, J.] <<LAWPACK SUPREME COURT>>
Criminal Procedure Code, 1973 — Section 319 — Summon to face trial — Absence of evidence on record, Sustainability of — Appeal preferred against order passed by ASJ, summoning appellant to face trial for an offence punishable under Sections 304 and 115 of IPC, based on accusation made by respondent No.2 that he is guilty of the offence in view of dying declaration of husband/deceased in which he stated that his wife threw kerosene oil lamp over him when he snatched the mobile from her, who was alleged to be talking with appellant — Held, it does not appear from evidence that appellant committed offence for which such person could be tried together with accused — Appellant was not present at the time of the incident which took place in the house of the couple nor was he anywhere near it — There is no allegation that the appellant has instigated or inferenced his wife to throw the kerosene lamp over him or to attack oil lamp over deceased or to attack him — Appellant therefore could not have committed the offence under Sections 304 and 115 of IPC — Appeal allowed — Penal Code, 1860 — Sections 304 & 115 — Summing order under — Quashing of.
(Para 4 & 5)
Vikas v. State of Uttar Pradesh [Bench Strength 2], Criminal Appeal Nos. …./2013 (08/07/2013), 2013(7) SLT 513 [B.S. Chauhan, J.: S.A. Bobde, J.] <<LAWPACK SUPREME COURT>>
Criminal Procedure Code, 1973 — Section 319 — Power of court to proceed from evidence on record — Held, Court is empowered in the course of an inquiry or trial of an offence to proceed against a person for in offence from the evidence on record.
(Para 4)
Vikas v. State of Uttar Pradesh [Bench Strength 2], Criminal Appeal Nos. …./2013 (08/07/2013), 2013(7) SLT 513 [B.S. Chauhan, J.: S.A. Bobde, J.] <<LAWPACK SUPREME COURT>>
Criminal Procedure Code, 1973 — Section 319 — Reference of evidence under — Interpretation of — Held, evidence refers to evidence which is already brought on record and not the evidence already brought on record when the order under Section 319 is made and not evidence which is brought on record for the trial of the person added as an accused.
Sarojben Ashwin Kumar Shah v. State of Gujarat & Anr., III (2011) BC 543 (SC): III (2011) CCR 273 (SC): VI (2011) SLT 119: III (2011) DLT (Crl.) 615 (SC): 2011 (74) ACC 951, Referred.
(Para 4)
Vikas v. State of Uttar Pradesh [Bench Strength 2], Criminal Appeal Nos. …./2013 (08/07/2013), 2013(7) SLT 513 [B.S. Chauhan, J.: S.A. Bobde, J.] <<LAWPACK SUPREME COURT>>
Criminal Procedure Code, 1973 — Chapter 21-A — Plea bargaining — Grant of benefit, Without recording statement of complainant, Effect of — Complaint, alleging kidnapping of appellant by private respondents — Charge sheet only for offences punishable under Sections 323, 343 read with Section 34 IPC — Trial court allowed application of respondents-accused for pleading guilty and further given them benefit of Probation of the Offenders Act, 1958 — By impugned order, High Court rejected the application filed by appellant for setting aside the judgment and order passed by trial court — Appeal –Held, trial court proceeded not only in great haste, but adopted a procedure not known in law — High Court failed to appreciate that before the statement of appellant or any other witness could be recorded, trial court disposed off the matter on the date when the application itself had been submitted admitting the guilt — Appeal allowed — Judgment and order of trial court as well as of High Court are set aside — Matter remitted to trial court to be decided afresh in accordance with law — Probation of Offenders Act, 1958 — Section 12 — Benefit under — Without issuing notice to victim, Effect of.
State of U.P. v. Ranjit Singh, AIR 1999 SC 1201 & Shankar Dass v. Union of India & Anr., AIR 1985 SC 772, Relied on.
(Para 9, 13 & 14)
Girraj Prasad Meena v. State of Rajasthan [Bench Strength 2], Criminal Appeal No. 1547/2013 (30/09/2013), Criminal Appeal No. 1547/2013 [B.S. Chauhan, J.: S.A. Bobde, J.] <<LAWPACK SUPREME COURT>>
Criminal Procedure Code, 1973 — Chapter 21-A — Plea bargaining — Observation of conviction not adversely affecting services of accused, Legality of — Trial court while allowing application of respondents-accused for pleading guilty, observed that order of conviction would not adversely affect the services of respondents-accused — Challenged — Held, trial court had no competence to make any observation having civil consequences so far as the private respondents are concerned.
Sushil Kumar Singhal v. Regional Manager, Punjab National Bank, (2010) 8 SCC 573 & Karamjit Singh v. State of Punjab, (2009) 7 SCC 178, Referred.
(Para 13)
Girraj Prasad Meena v. State of Rajasthan [Bench Strength 2], Criminal Appeal No. 1547/2013 (30/09/2013), Criminal Appeal No. 1547/2013 [B.S. Chauhan, J.: S.A. Bobde, J.] <<LAWPACK SUPREME COURT>>
Criminal Procedure Code, 1973 — Chapter 21-A — Plea bargaining — Grant of benefit, Requirement of notice to victim — Held, if trial court wanted to entertain any issue of plea bargaining, then too court was obliged to put the victim to notice before extending any such benefits that have been given in the present case.
(Para 13)
Girraj Prasad Meena v. State of Rajasthan [Bench Strength 2], Criminal Appeal No. 1547/2013 (30/09/2013), Criminal Appeal No. 1547/2013 [B.S. Chauhan, J.: S.A. Bobde, J.] <<LAWPACK SUPREME COURT>>
Criminal Procedure Code, 1973 — Sections 228/251 r/w Sections 216 & 217 — Alteration of charges — Opportunity of hearing to accused, Requirement of — Held, filing of charge sheet and taking cognizance has nothing to do with the finality of charges, as charges framed after the cognizance is taken by the court, can be altered/amended/changed and any charge can be added at any stage upto the stage of conviction — Only legal requirement is that, accused is entitled to an opportunity of show- cause/hearing.
Umesh Kumar v. State of A.P., JT 2013 (12) SC 213, Referred.
(Para 6)
Girraj Prasad Meena v. State of Rajasthan [Bench Strength 2], Criminal Appeal No. 1547/2013 (30/09/2013), Criminal Appeal No. 1547/2013 [B.S. Chauhan, J.: S.A. Bobde, J.] <<LAWPACK SUPREME COURT>>
Bombay Public Trust Act, 1950 — Section 18 — Unification of churches and formation of CNI — Resolution to accept unification, Lack of reference of dissolution of FDCB, Effect of — Unification of six churches which included the FDCB, when CNI was formed — Charity Commissioner dismissed the objections raised against the Change Reports, allowing the properties vested in FDCB to be vested in CNI — Civil Court Judge quashed and set aside the order of Charity Commissioner — Single Judge confirmed order of Civil Court — Challenged — Held, unification has no legal foundation — FDCB is a religious society registered under the Societies Registration Act and its property vests with a Trust regulated by the BPTA — Procedure for dissolution of FDCB has not conformed to the requirements of the SR Act and the procedure as laid down in the BPT Act — Society and the Trust being creatures of statute, have to resort to the modes provided by the statute for its amalgamation and the so-called merger cannot be treated or can give effect to the dissolution of the Trust — Resolution only resolved to accept the recommendation of joint unification but does not refer to dissolution — Appeals dismissed — Societies Registration Act, 1860 — Sections 13 & 5 — Formation of society — Non-compliance of provisions of statute — Effect of.
Church of North India v. Lavajibhai Ratanjibhai & Ors., 2005 (10) SCC 760, Relied on.
The Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt, AIR 1954 SC 282 & Ratilal Panachand Gandhi & Ors. v. State of Bombay & Ors., AIR 1954 SC 388, Distinguished.
(Para 12, 15, 17, 25 & 26)
Vinod Kumar M. Malavia v. Maganlal Mangaldas Gameti [Bench Strength 2], Civil Appeal Nos. 8800-8801/2013 (Arising out of Special Leave Petition (Civil) Nos. 16575-16576/2012) (30/09/2013), Civil Appeal Nos. 8800-8801/2013 (Arising out of Special Leave Petition (Civil) Nos. 16575-16576/2012) [Surinder Singh Nijjar, J.: Pinaki Chandra Ghose, J.] <<LAWPACK SUPREME COURT>>
Bombay Public Trust Act, 1950 — Section 18 — Registration with retrospective effect — Non-existence of — Held, the Act is silent about the registration with retrospective effect.
(Para 15)
Vinod Kumar M. Malavia v. Maganlal Mangaldas Gameti [Bench Strength 2], Civil Appeal Nos. 8800-8801/2013 (Arising out of Special Leave Petition (Civil) Nos. 16575-16576/2012) (30/09/2013), Civil Appeal Nos. 8800-8801/2013 (Arising out of Special Leave Petition (Civil) Nos. 16575-16576/2012) [Surinder Singh Nijjar, J.: Pinaki Chandra Ghose, J.] <<LAWPACK SUPREME COURT>>
Bombay Public Trust Act, 1950 — Section 80 — Bar on jurisdiction of civil courts — Held, the Act is a complete code in itself — Third party cannot maintain a suit so as to avoid the rigours of the provisions of the Act.
Church of North India v. Lavajibhai Ratanjibhai & Ors., 2005 (10) SCC 760, Relied on.
(Para 22)
Vinod Kumar M. Malavia v. Maganlal Mangaldas Gameti [Bench Strength 2], Civil Appeal Nos. 8800-8801/2013 (Arising out of Special Leave Petition (Civil) Nos. 16575-16576/2012) (30/09/2013), Civil Appeal Nos. 8800-8801/2013 (Arising out of Special Leave Petition (Civil) Nos. 16575-16576/2012) [Surinder Singh Nijjar, J.: Pinaki Chandra Ghose, J.] <<LAWPACK SUPREME COURT>>
Bombay Public Trust Act, 1950 — Section 22 — Proceedings under — Adherence to CPC and Evidence Act, Whether required? — Held, Charity Commissioner is not required to strictly adhere to the procedure under the Code of Civil Procedure, 1908 and the Evidence Act, 1872, the evidence submitted before the Charity Commissioner may be admissible unless they are against the basic principles of Evidence Law.
Vinod Kumar Mathurseva Malvia & Anr. v. Maganlal Mangaldas Gameti and Ors., 2006 (9) SCC 282 & Church of North India v. Lavajibhai Ratanjibhai & Ors., 2005 (10) SCC 760, Relied on.
(Para 23)
Vinod Kumar M. Malavia v. Maganlal Mangaldas Gameti [Bench Strength 2], Civil Appeal Nos. 8800-8801/2013 (Arising out of Special Leave Petition (Civil) Nos. 16575-16576/2012) (30/09/2013), Civil Appeal Nos. 8800-8801/2013 (Arising out of Special Leave Petition (Civil) Nos. 16575-16576/2012) [Surinder Singh Nijjar, J.: Pinaki Chandra Ghose, J.] <<LAWPACK SUPREME COURT>>
Bombay Public Trust Act, 1950 — Section 18 — Public trust — A society also — Held, a public trust being religious in nature, may also be a society under the Societies Registration Act.
(Para 12)
Vinod Kumar M. Malavia v. Maganlal Mangaldas Gameti [Bench Strength 2], Civil Appeal Nos. 8800-8801/2013 (Arising out of Special Leave Petition (Civil) Nos. 16575-16576/2012) (30/09/2013), Civil Appeal Nos. 8800-8801/2013 (Arising out of Special Leave Petition (Civil) Nos. 16575-16576/2012) [Surinder Singh Nijjar, J.: Pinaki Chandra Ghose, J.] <<LAWPACK SUPREME COURT>>
Societies Registration Act, 1860 — Section 13 — Creation of Body — Compliance of provisions of regulating statute — Held, a body created by a statute must conform to the provisions of the regulating statute.
(Para 12)
Vinod Kumar M. Malavia v. Maganlal Mangaldas Gameti [Bench Strength 2], Civil Appeal Nos. 8800-8801/2013 (Arising out of Special Leave Petition (Civil) Nos. 16575-16576/2012) (30/09/2013), Civil Appeal Nos. 8800-8801/2013 (Arising out of Special Leave Petition (Civil) Nos. 16575-16576/2012) [Surinder Singh Nijjar, J.: Pinaki Chandra Ghose, J.] <<LAWPACK SUPREME COURT>>
Societies Registration Act, 1860 — Section 5 — Property of Society — Non-vesting in trustees, Effect of — Held, property of a Society, if not vested in trustees, then only shall vest for the time being with the governing body of such society.
(Para 13)
Vinod Kumar M. Malavia v. Maganlal Mangaldas Gameti [Bench Strength 2], Civil Appeal Nos. 8800-8801/2013 (Arising out of Special Leave Petition (Civil) Nos. 16575-16576/2012) (30/09/2013), Civil Appeal Nos. 8800-8801/2013 (Arising out of Special Leave Petition (Civil) Nos. 16575-16576/2012) [Surinder Singh Nijjar, J.: Pinaki Chandra Ghose, J.] <<LAWPACK SUPREME COURT>>
Criminal Procedure Code, 1973 — Section 156(3) — Complaint against public servant — Investigation at pre-cognizance stage, Requirement of sanction — Private complaint on allegations of offences punishable under PC Act — Special Judge/Magistrate directed investigation by Deputy Superintendent of Police, without production of valid sanction order — High Court quashed the order passed by Special Judge, as well as complaint — Appeals by complainants — Held, once it is noticed that there was no previous sanction, Magistrate cannot order investigation against a public servant while invoking powers under Section 156(3) Cr.P.C. — No error in the order passed by High Court — Appeals dismissed — Prevention of Corruption Act, 1988 — Sections 19 & 2(c) — Sanction — Pre-condition for ordering investigation.
State of Uttar Pradesh v. Paras Nath Singh, (2009) 6 SCC 372, Subramanium Swamy v. Manmohan Singh and another, (2012) 3 SCC 64 & General Officer, Commanding v. CBI, Criminal Appeal No. 257 of 2011, Relied on.
(Para 13)
Anil Kumar v. M.K. Aiyappa [Bench Strength 2], Criminal Appeal Nos. 1590-1591/2013 (@ Special Leave Petition (Criminal) Nos. 6652-6653/2013) (01/10/2013), Criminal Appeal Nos. 1590-1591/2013 (@ Special Leave Petition (Criminal) Nos. 6652-6653/2013) [K.S. Radhakrishnan, J.: A.K. Sikri, J.] <<LAWPACK SUPREME COURT>>
Criminal Procedure Code, 1973 — Section 156(3) — Order of investigation — Requirement of application of mind — Held, after going through the complaint, documents and hearing the complainant, what weighed with the Magistrate to order investigation, should be reflected in the order, though a detailed expression of his views is neither required nor warranted.
Maksud Saiyed v. State of Gujarat and Others, (2008) 5 SCC 668, Relied on.
(Para 8)
Anil Kumar v. M.K. Aiyappa [Bench Strength 2], Criminal Appeal Nos. 1590-1591/2013 (@ Special Leave Petition (Criminal) Nos. 6652-6653/2013) (01/10/2013), Criminal Appeal Nos. 1590-1591/2013 (@ Special Leave Petition (Criminal) Nos. 6652-6653/2013) [K.S. Radhakrishnan, J.: A.K. Sikri, J.] <<LAWPACK SUPREME COURT>>
Criminal Procedure Code, 1973 — Section 156(3) r/w Section 197 — Reference for investigation — Pre-cognizance stage — Held, Special Judge referring the case for investigation is at pre-cognizance stage.
State of Uttar Pradesh v. Paras Nath Singh, (2009) 6 SCC 372, Referred.
(Para 10)
Anil Kumar v. M.K. Aiyappa [Bench Strength 2], Criminal Appeal Nos. 1590-1591/2013 (@ Special Leave Petition (Criminal) Nos. 6652-6653/2013) (01/10/2013), Criminal Appeal Nos. 1590-1591/2013 (@ Special Leave Petition (Criminal) Nos. 6652-6653/2013) [K.S. Radhakrishnan, J.: A.K. Sikri, J.] <<LAWPACK SUPREME COURT>>
Criminal Procedure Code, 1973 — Sections 190 & 156(3) — Special Judge — Powers of — Held, a Special Judge is deemed to be a Magistrate and, therefore, clothed with all the magisterial powers provided under the Code of Criminal Procedure — Prevention of Corruption Act, 1988 — Section 5(4) — Special Judge — Powers of.
(Para 11)
Anil Kumar v. M.K. Aiyappa [Bench Strength 2], Criminal Appeal Nos. 1590-1591/2013 (@ Special Leave Petition (Criminal) Nos. 6652-6653/2013) (01/10/2013), Criminal Appeal Nos. 1590-1591/2013 (@ Special Leave Petition (Criminal) Nos. 6652-6653/2013) [K.S. Radhakrishnan, J.: A.K. Sikri, J.] <<LAWPACK SUPREME COURT>>
Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 — Section 59 — Direction of Chief Commissioner — For inclusion of cadre in list of identified posts, Validity of — Respondent applied for promotion under physically handicapped person`s quota after availing all facilities of restructured Cadre — Chief Commissioner entertained the complaint and directed the appellants to include the TOA cadre which is required to do clerical work and other such jobs in the list of identified jobs — Challenged — Held, promotion in the physically handicapped quota was limited to certain categories of posts — Since the respondent was a TOA, which was not identified for the purpose of reservation for physically handicapped persons and hence his claim for promotion to Grade-IV could not be allowed since the promotion to the Grade was based on seniority in the basic cadre and in fact there was no reservation even for SC/ST candidates for promotion to Grade-IV — Appeal allowed.
(Para 9, 10 & 11)
Bharat Sanchar Nigam Limited v. G. Sarvothaman [Bench Strength 2], Civil Appeal No. 8947/2013 (Arising out of S.L.P. (Civil) No. 24120/2007) (04/10/2013), Civil Appeal No. 8947/2013 (Arising out of S.L.P. (Civil) No. 24120/2007) [K.S. Radhakrishnan, J.: A.K. Sikri, J.] <<LAWPACK SUPREME COURT>>
Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 — Section 59 — Powers of Chief Commissioner under — Held, Chief Commissioner has got only the power to examine the matters relating to “deprivation of rights” of persons with disabilities — He has no power to direct inclusion of one more category among the identified categories and to grant the benefit.
(Para 12)
Bharat Sanchar Nigam Limited v. G. Sarvothaman [Bench Strength 2], Civil Appeal No. 8947/2013 (Arising out of S.L.P. (Civil) No. 24120/2007) (04/10/2013), Civil Appeal No. 8947/2013 (Arising out of S.L.P. (Civil) No. 24120/2007) [K.S. Radhakrishnan, J.: A.K. Sikri, J.] <<LAWPACK SUPREME COURT>>
Arbitration Act, 1940 — Sections 20 & 21 — Reference to arbitration — B-1 Agreements, Lack of clause to confer role of arbitrator, Effect of — B-1 Agreements between Government of Maharashtra and appellant — Dispute arose between parties and recovery proceedings initiated before court — Trial Court declared that Clause 30 of B-1 Agreement is an arbitration clause and appointed Chief Engineer (PWD) as an Arbitrator and referred all the disputes to him — In Revision Application filed by respondents against the order of the trial Court, Single Judge held that Clause 30 of B-1 Agreement cannot be treated as an arbitration clause — Appeal — Held, there is nothing in the language of Clause 30 from which it can be inferred that the parties had agreed to confer the role of arbitrator upon the Superintending Engineer of the Circle — High Court rightly held that Clause 30 of B-I Agreement is not an Arbitration Agreement and the trial Court was not right in appointing the Chief Engineer as an Arbitrator — Appeals dismissed
Bihar State Mineral Development Corporation and another v. Encon Builders (I)(P) Limited, (2003) 7 SCC 418, Referred.
Mallikarjun Vs. Gulbarga University, 2004 (1) SCC 372 & Punjab State v. Dina Nath, (2007) 5 SCC 28, Distinguished.
(Para 17 & 31)
Vishnu v. State of Maharashtra [Bench Strength 3], Civil Appeal No. 3680/2005 (04/10/2013), Civil Appeal No. 3680/2005 [G.S. Singhvi, J.: V. Gopala Gowda, J.: C. Nagappan, J.] <<LAWPACK SUPREME COURT>>
Arbitration and Conciliation Act, 1996 — Section 2(a) — B-1 Agreement — Clauses 29 & 30 — Not an arbitration clause.
State of U.P. Vs. Tipper Chand, 1980(2) SCC 341, State of Maharashtra v. M/s. Ranjeet Constructio, Civil Appeal No. 4700/1985, State of Orissa Vs. Damodar Das, 1996 (2) SCC 216, K.K. Modi v. K.N. Modi (1998) 3 SCC 573 & Bharat Bhushan Bansal v. U.P. Small Industries Corporation Limited, Kanpur, (1999) 2 SCC 166, Relied on.
(Para 17)
HELD: A conjoint reading of Clauses 29 and 30 of B-1 Agreements entered into between the parties shows that the appellant had to execute all works subject to the approval in all respects of Superintending Engineer of the Circle, who could issue directions from time to time about the manner in which work was to commence and execute. By virtue of Clause 30, decision of the Superintending Engineer of the Circle was made final, conclusive and binding on all the parties in respect of all questions relating to the meaning of the specifications, designs, drawings, quality of workmanship or materials used on the work or any other question relating to claim, right, matter or things arising out of or relating to the contract designs, drawings, specifications, estimates, instructions, orders, etc. These two clauses by which the Superintending Engineer was given over all supervisory control were incorporated for smooth execution of the works in accordance with the approved designs and specifications and also to ensure that quality of work is not compromised. The power conferred upon the Superintending Engineer of the Circle was in the nature of a departmental dispute resolution mechanism and was meant for expeditious sorting out of problems which could crop up during execution of the work. Since the Superintending Engineer was made overall in-charge of all works to be executed under the contract, he was considered by the parties to be the best person who could provide immediate resolution of any controversy relating to specifications, designs, drawings, quality of workmanship or material used, etc. It was felt that if all this was left to be decided by the regular civil Courts, the object of expeditious execution of work of the project would be frustrated. This is the primary reason why the Superintending Engineer of the Circle was entrusted with the task of taking decision on various matters. However, there is nothing in the language of Clause 30 from which it can be inferred that the parties had agreed to confer the role of arbitrator upon the Superintending Engineer of the Circle.
(Para 17)
Vishnu v. State of Maharashtra [Bench Strength 3], Civil Appeal No. 3680/2005 (04/10/2013), Civil Appeal No. 3680/2005 [G.S. Singhvi, J.: V. Gopala Gowda, J.: C. Nagappan, J.] <<LAWPACK SUPREME COURT>>
Arbitration and Conciliation Act, 1996 — Section 2(a) — Arbitration agreement — Circulars issued by State Government to interpret, Binding effect of — Held, circulars issued by the State Government may provide useful guidance to the authorities involved in the implementation of the project but the same are not conclusive of the correct interpretation of the relevant clauses of the agreement and, in any case, Government`s interpretation is not binding on the Courts.
(Para 32)
Vishnu v. State of Maharashtra [Bench Strength 3], Civil Appeal No. 3680/2005 (04/10/2013), Civil Appeal No. 3680/2005 [G.S. Singhvi, J.: V. Gopala Gowda, J.: C. Nagappan, J.] <<LAWPACK SUPREME COURT>>
Service and Labour Law — Dismissal from service — Misconduct of forcibly entering Principal`s office, During duty hours in inebriated condition, Proportionality of — Penalty of `removal` from the service — High Court modified the penalty and imposed lesser punishment — Appellant-school approached Supreme Court — Held, entering the school premises in working hours i.e. 11.30 a.m. in an inebriated condition and thereafter forcibly entering into the Principal`s room would constitute a serious misconduct — Penalty of removal for such a misconduct cannot be treated as disproportionate — In all cases dealing with the penalty of removal, dismissal or compulsory retirements, hardship would result — That cannot a ground for the Court to interdict with the penalty — Reasoning of the High Court unacceptable — Appeal allowed — Punishment of removal of respondent from service is upheld — Central Civil Services (Classification, Control and Appeal) Rules, 1965 — Rule 14 — Misconduct — Central Civil Services (Conduct) Rules, 1964 — Rule 20 — Misconduct — Constitution of India — Articles 226 & 227 — Punishment — Interference by high Court, Effect of.
H.G.E. Trust & Anr. vs. State of Karnataka & Ors., (2006) 1 SCC 430 Karnataka Bank Ltd. Vs. A.L. Mohan Rao, (2006) 1 SCC 63, Ex-Constable Ramvir Singh vs. Union of India & Ors., (2009) 3 SCC 97 & Charanjit Lamba vs. Commanding Officer, (2010) 11 SCC 314, Referred.
(Para 11, 12 & 13)
Deputy Commissioner, KVS v. J. Hussain [Bench Strength 2], Civil Appeal No. 8948/2013 (Arising Out/the SLP (Civil) No. 18271/2006) (04/10/2013), Civil Appeal No. 8948/2013 (Arising Out/the SLP (Civil) No. 18271/2006) [Sudhansu Jyoti Mukhopadhaya, J.: A.K. Sikri, J.] <<LAWPACK SUPREME COURT>>
Service and Labour Law — Serious misconduct — Going to work place under influence of alcohol, Effect of — Held, going to place of work under the influence of alcohol during working hours would be a serious act of misconduct.
(Para 10)
Deputy Commissioner, KVS v. J. Hussain [Bench Strength 2], Civil Appeal No. 8948/2013 (Arising Out/the SLP (Civil) No. 18271/2006) (04/10/2013), Civil Appeal No. 8948/2013 (Arising Out/the SLP (Civil) No. 18271/2006) [Sudhansu Jyoti Mukhopadhaya, J.: A.K. Sikri, J.] <<LAWPACK SUPREME COURT>>
Service and Labour Law — Penalty — Discretion and role of disciplinary authority and appellate authority — Discussed.
(Para 6)
HELD: When the charge proved, as happened in the instance case, it is the disciplinary authority with whom lies the discretion to decide as to what kind of punishment is to be imposed. Of course, this discretion has to be examined objectively keeping in mind the nature and gravity of charge. The Disciplinary Authority is to decide a particular penalty specified in the relevant Rules. Host of factors go into the decision making while exercising such a discretion which include, apart from the nature and gravity of misconduct, past conduct, nature of duties assigned to the-delinquent, responsibility of duties assigned to the delinquent, previous penalty, if any, and the discipline required to be maintained in department or establishment where he works, as well as extenuating circumstances, if any exist. The order of the Appellate Authority while having a re-look of the case would, obviously, examine as to whether the punishment imposed by the Disciplinary Authority is reasonable or not. If the Appellate Authority is of the opinion that the case warrants lesser penalty, it can reduce the penalty so imposed by the Disciplinary Authority. Such a power which vests with the Appellate Authority departmentally is ordinarily not available to the Court or a Tribunal.
(Para 6)
Deputy Commissioner, KVS v. J. Hussain [Bench Strength 2], Civil Appeal No. 8948/2013 (Arising Out/the SLP (Civil) No. 18271/2006) (04/10/2013), Civil Appeal No. 8948/2013 (Arising Out/the SLP (Civil) No. 18271/2006) [Sudhansu Jyoti Mukhopadhaya, J.: A.K. Sikri, J.] <<LAWPACK SUPREME COURT>>
Service and Labour Law — Penalty — Not shockingly disproportionate, Interference with, Impermissibility — Held, once, it is found that the penalty is not shockingly disproportionate, merely because in the opinion of the Court lesser punishment could have been more justified, cannot be a reason to interfere with the said penalty.
(Para 11)
Deputy Commissioner, KVS v. J. Hussain [Bench Strength 2], Civil Appeal No. 8948/2013 (Arising Out/the SLP (Civil) No. 18271/2006) (04/10/2013), Civil Appeal No. 8948/2013 (Arising Out/the SLP (Civil) No. 18271/2006) [Sudhansu Jyoti Mukhopadhaya, J.: A.K. Sikri, J.] <<LAWPACK SUPREME COURT>>
Service and Labour Law — Penalty — Mitigating circumstances, Consideration by departmental authorities — Held, mitigating circumstances are to be looked into by the departmental authorities and not by courts.
(Para 11)
Deputy Commissioner, KVS v. J. Hussain [Bench Strength 2], Civil Appeal No. 8948/2013 (Arising Out/the SLP (Civil) No. 18271/2006) (04/10/2013), Civil Appeal No. 8948/2013 (Arising Out/the SLP (Civil) No. 18271/2006) [Sudhansu Jyoti Mukhopadhaya, J.: A.K. Sikri, J.] <<LAWPACK SUPREME COURT>>
Service and Labour Law — Punishment — Doctrine of Wednesbury Rule of reasonableness, Applicability of — Discussed.
Council of Civil Service Unions vs. Minister for Civil Service & Ranjit Thakur vs. Union of India (1987) 4 SCC 611, Referred.
(Para 7)
HELD: When the punishment is found to be outrageously disproportionate to the nature of charge, principle of proportionality comes into play. It is, however, to be borne in mind that this principle would be attracted, which is in tune with doctrine of Wednesbury Rule of reasonableness, only when in the facts and circumstances of the case, penalty imposed is so disproportionate to the nature of charge that it shocks the conscience of the Court and the Court is forced to believe that it is totally unreasonable and arbitrary.
(Para 7)
Deputy Commissioner, KVS v. J. Hussain [Bench Strength 2], Civil Appeal No. 8948/2013 (Arising Out/the SLP (Civil) No. 18271/2006) (04/10/2013), Civil Appeal No. 8948/2013 (Arising Out/the SLP (Civil) No. 18271/2006) [Sudhansu Jyoti Mukhopadhaya, J.: A.K. Sikri, J.] <<LAWPACK SUPREME COURT>>
Service and Labour Law — Punishment — Judicial review by court, Scope — Held, Court while undertaking judicial review of penalty pursuant to disciplinary action is not supposed to substitute its own opinion on reappraisal of facts.
Union Territory of Dadra & Nagar Haveli vs. Gulabhia M.Lad, (2010) 5 SCC 775, Referred.
(Para 6)
Deputy Commissioner, KVS v. J. Hussain [Bench Strength 2], Civil Appeal No. 8948/2013 (Arising Out/the SLP (Civil) No. 18271/2006) (04/10/2013), Civil Appeal No. 8948/2013 (Arising Out/the SLP (Civil) No. 18271/2006) [Sudhansu Jyoti Mukhopadhaya, J.: A.K. Sikri, J.] <<LAWPACK SUPREME COURT>>
Penal Code, 1860 — Section 354 — Appeal against conviction — Concurrent findings of court below, Guilt proved beyond reasonable doubt, Effect of — Appellant suddenly came on the way of complainant and forcibly caught hold of her hair and planted a kiss, resultantly, she suffered a cut over her lower lip and started bleeding — Claimed for benefit under Probation of Offenders Act, 1958 — Held, this court not inclined to re-appreciate the evidence and same is also not warranted in view of the fact that the complainant, who had no enmity against the appellant has been very consistent about the factual matrix not only in her statement under Section 161 of Cr.P.C. but also before the court and had supported the prosecution case fully — Her version was corroborated by several other witnesses and the courts below have recorded a finding that the appellant was guilty beyond reasonable doubt — As appellant behaved like a road side Romeo, not a fit case where the benefit of the Act 1958 should be given to the appellant — Probation of Offenders Act, 1958 — Section 12 — Denial of benefit under.
Musa Khan & Ors. v. State of Maharashtra, AIR 1976 DV 2566, Karamjit Singh v. State of Punjab, (2009) 7 SCC 178 & State of Himachal Pradesh v. Dharam Pal, (2004) 9 SCC 681, Referred.
(Para 7 & 12)
Ajahar Ali v. State of West Bengal [Bench Strength 2], Criminal Appeal No. 1623/2013 (Arising out of SLP (Crl.) No. 2817/2013) (04/10/2013), Criminal Appeal No. 1623/2013 (Arising out of SLP (Crl.) No. 2817/2013) [B.S. Chauhan, J.: S.A. Bobde, J.] <<LAWPACK SUPREME COURT>>
Penal Code, 1860 — Section 354 — Conviction — Plea of juvenility and leniency, Entertainment of — Appellants pleads for leniency on ground that trial has gone on for a long time and considering the time gap of 18 years and the fact that parties settled in life — Held, as the appellant had been awarded only six months imprisonment, considering the matter under the JJ Act, 2000 would not serve any purpose at such a belated stage — High Court had been of the opinion that appellant had been dealt with very leniently and it was a fit case where the High Court wanted to enhance the sentence but considering the fact that the incident occurred long back, the High Court refrained to do so — Thus, appeal dismissed.
Abuzar Hossain @ Gulam Hossain v. State of West Bengal, (2012) 10 SCC 489, Chinnadurai v. State of Tamil Nadu, AIR 1996 SC 546, State of U.P. v. Shri Kishan, AIR 2005 SC 1250 & Sadhupati Nageswara Rao v. State of Andhra Pradesh, AIR 2012 SC 3242, Relied on.
(Para 21 & 22)
Ajahar Ali v. State of West Bengal [Bench Strength 2], Criminal Appeal No. 1623/2013 (Arising out of SLP (Crl.) No. 2817/2013) (04/10/2013), Criminal Appeal No. 1623/2013 (Arising out of SLP (Crl.) No. 2817/2013) [B.S. Chauhan, J.: S.A. Bobde, J.] <<LAWPACK SUPREME COURT>>
Penal Code, 1860 — Section 354 — Object of enactment of — Held, provisions of Section 354 IPC has been enacted to safeguard public morality and decent behavior.
State of Punjab v. Major Singh, AIR 1967 SC 63, Aman Kumar v. State of Haryana, AIR 2004 SC 1497; Raju Pandurang Mahale v. State of Maharashtra, AIR 2004 SC 1677; Turkeshwar Sahu v. State of Bihar, (2006) 8 SCC 560, Mrs. Rupan Deol Bajaj & Anr. v. Kanwar Pal Singh Gill & Anr., AIR 1996 SC 309, Vishaka & Ors. v. State of Rajasthan & Ors., AIR 1997 SC 3011 & Apparel Export Promotion Council v. A.K. Chopra, AIR 1999 SC 625, Referred.
(Para 14)
Ajahar Ali v. State of West Bengal [Bench Strength 2], Criminal Appeal No. 1623/2013 (Arising out of SLP (Crl.) No. 2817/2013) (04/10/2013), Criminal Appeal No. 1623/2013 (Arising out of SLP (Crl.) No. 2817/2013) [B.S. Chauhan, J.: S.A. Bobde, J.] <<LAWPACK SUPREME COURT>>
Juvenile Justice (Care and Protection of Children) Act, 2000 — Section 7-A — Plea of juvenility — First time in SLP, Permissibility — Held, raising of issue of juvenility for the first time in Supreme Court is permissible.
Abuzar Hossain @ Gulam Hossain v. State of West Bengal, (2012) 10 SCC 489, Relied on.
(Para 13)
Ajahar Ali v. State of West Bengal [Bench Strength 2], Criminal Appeal No. 1623/2013 (Arising out of SLP (Crl.) No. 2817/2013) (04/10/2013), Criminal Appeal No. 1623/2013 (Arising out of SLP (Crl.) No. 2817/2013) [B.S. Chauhan, J.: S.A. Bobde, J.] <<LAWPACK SUPREME COURT>>
Constitution of India — Articles 21, 14 & 309 — Trial by Special Judge — Continuation on contractual basis after retirement, Allowability of — Prosecution against petitioners for having assets disproportionate to their known income — State Government passed an order whereby directed respondent no.4, Special Public Prosecutor not to appear in the pending prosecution against petitioners, impending his retirement — Petitioners challenged validity of action of State Government removing Respondent No. 4 on the ground that fundamental rights for speedy trial have been breached — Held, order of removal of respondent no.4 is a product of mala fides and the impugned order is not sustainable in the eyes of law as such the same is hereby quashed — State Government is competent to appoint Special Judge on contractual basis after his retirement for the period required to conclude the present trial, though with the consultation of the High Court — Therefore, matter referred to High Court to decide on the administrative side as to whether, in order to conclude the trial expeditiously as guaranteed under Article 21 of the Constitution requires the extension of the services of Special Judge — Karnataka Civil Services (General Recruitment) Rules, 1977 — Rule 11(2) — Fair trial.
Chandramouleshwar Prasad v. The Patna High Court & Ors., AIR 1970 SC 370; Union of India v. Sankalchand Himatlal Sheth & Anr., AIR 1977 SC 2328; State of Gujarat v. Gujarat Revenue Tribunal Bar Association, AIR 2013 SC 107; and State of Gujarat & Anr. v. Justice R.A. Mehta (Retired) & Ors., (2013) 3 SCC 1, Distinguished.
(Para 30 & 31)
Selvi J. Jayalalithaa v. State of Karnataka [Bench Strength 2], Writ Petition (Criminal) No. 154/2013 (30/09/2013), Writ Petition (Criminal) No. 154/2013 [B.S. Chauhan, J.: S.A. Bobde, J.] <<LAWPACK SUPREME COURT>>
Constitution of India — Article 21 — Fair trial — Right of every accused — Held, fair trial must be accorded to every accused in the spirit of the right to life and personal liberty and accused must get a free and fair, just and reasonable trial on the charge imputed in a criminal case — Criminal Law — Fair trial — Right of every accused.
(Para 26)
HELD: Fair trial is the main object of criminal procedure and such fairness should not be hampered or threatened in any manner. Fair trial entails the interests of the accused, the victim and of the society. Thus, fair trial must be accorded to every accused in the spirit of the right to life and personal liberty and the accused must get a free and fair, just and reasonable trial on the charge imputed in a criminal case. Any breach or violation of public rights and duties adversely affects the community as a whole and it becomes harmful to the society in general. In all circumstances, the courts have a duty to maintain public confidence in the administration of justice and such duty is to vindicate and uphold the `majesty of the law’ and the courts cannot turn a blind eye to vexatious or oppressive conduct that occurs in relation to criminal proceedings. Denial of a fair trial is as much injustice to the accused as is to the victim and the society. It necessarily requires a trial before an impartial judge, a fair prosecutor and an atmosphere of judicial calm. Since the object of the trial is to mete out justice and to convict the guilty and protect the innocent, the trial should be a search for the truth and not a bout over technicalities and must be conducted under such rules as will protect the innocent and punish the guilty. Justice should not only be done but should be seem to have been done. Therefore, free and fair trial is a sine qua non of Article 21 of the Constitution. Right to get a fair trial is not only a basic fundamental right but a human right also.
(Para 26)
Selvi J. Jayalalithaa v. State of Karnataka [Bench Strength 2], Writ Petition (Criminal) No. 154/2013 (30/09/2013), Writ Petition (Criminal) No. 154/2013 [B.S. Chauhan, J.: S.A. Bobde, J.] <<LAWPACK SUPREME COURT>>
Constitution of India — Articles 21 & 14 — Hindrance in fair trial — Effect of — Held, any hindrance in a fair trial could be violative of Article 14 of the Constitution.
Smt. Triveniben v. State of Gujarat, AIR 1989 SC 1335; A.R. Antulay & Ors, v. R.S. Nayak, AIR 1992 SC 1701; Raj Deo Sharma (II) v. State of Bihar, (1999) 7 SCC 604; Dwarka Prasad Agarwal (D) by L.Rs. & Anr. v. B.D. Agarwal & Ors., AIR 2003 SC 2686; K. Anbazhagan v. Supdt. of Police, AIR 2004 SC 524; Zahira Habibullah Sheikh (5) v. State of Gujarat, AIR 2006 SC 1367; Noor Aga v. State of Punjab & Anr., (2008) 16 SCC 417; Capt. Amarinder Singh v. Parkash Singh Badal & Ors., (2009) 6 SCC 260; Mohd. Hussain @ Julfikar Ali v. State (Govt. of NCT of Delhi), AIR 2012 SC 750; Sudevanand v. State through CBI, (2012) 3 SCC 387; Rattiram & Ors. v. State of M.P., (2012) 4 SCC 516 & Natasha Singh v. CBI, (2013) 5 SCC 741, Referred.
(Para 26)
Selvi J. Jayalalithaa v. State of Karnataka [Bench Strength 2], Writ Petition (Criminal) No. 154/2013 (30/09/2013), Writ Petition (Criminal) No. 154/2013 [B.S. Chauhan, J.: S.A. Bobde, J.] <<LAWPACK SUPREME COURT>>
Constitution of India — Article 142 — Exercise of extraordinary power — Order violating statutory provisions, Permissibility of — Held, Supreme Court generally should not pass any order in exercise of its extraordinary power to do complete justice if such order violates any statutory provisions.
Teri Oat Estates (P) Ltd. v. UT, Chandigarh & Ors., (2004) 2 SCC 130; Manish Goel v. Rohini Goel, AIR 2010 SC 1099 & State of Uttar Pradesh v. Sanjay Kumar, (2012) 8 SCC 537, Referred.
(Para 29)
Selvi J. Jayalalithaa v. State of Karnataka [Bench Strength 2], Writ Petition (Criminal) No. 154/2013 (30/09/2013), Writ Petition (Criminal) No. 154/2013 [B.S. Chauhan, J.: S.A. Bobde, J.] <<LAWPACK SUPREME COURT>>
Administrative Law — Discretionary power — Exercise for unlawful purpose, Effect of — Held, if discretionary power has been exercised for an unauthorised purpose, it is generally immaterial whether its repository was acting in good faith or in bad faith and the order becomes vulnerable and liable to be set aside.
State of Tamil Nadu & Ors. v. K. Shyam Sunder & Ors., AIR 2011 SC 3470, M.I. Builders Pvt. Ltd. v. V. Radhey Shyam Sahu & Ors., AIR 1999 SC 2468; Onkar Lal Bajaj etc. etc. v. Union of India & Anr. etc.etc., AIR 2003 SC 2562; State of Karnataka & Anr. v. All India Manufacturers Organization & Ors., AIR 2006 SC 1846; A.P. Dairy Development Corporation Federation v. B. Narasimha Reddy & Ors., AIR 2011 SC 3298, Smt. S.R. Venkataraman v. Union of India & Anr., AIR 1979 SC 49, Ravi Yashwant Bhoir v. District Collector, Raigad & Ors., AIR 2012 SC 1339 & Kalabharati Advertising v. Hemant Vimalnath Narichania & Ors., AIR 2010 SC 3745, Referred.
(Para 25)
Selvi J. Jayalalithaa v. State of Karnataka [Bench Stren