Saturday, August 29, 2009

  1. Order 7, Rule 7, C. P. C. gives unfettered jurisdiction to the Civil Court to grant any appropriate relief to a party. The pleadings in most cases are loosely drafted and therefore, the Courts are duty bound to take the entire pleadings into consideration to find out what relief a party is actually asking for and can grant such relief, even if such relief is not specifically asked for in the prayer portion of the plaint.

  • Order 7, Rule 7, C. P. C., the Civil Court has inherent power to grant either general relief or other relief which appears to it to be legitimate and proper in any case, even though such reliefs have not been specifically asked for. Where the Plaintiff comes with a claim of larger relief, but is found entitled to a lesser one, then in appropriate case, the suit need not be dismissed and such lesser relief may be granted to him, if it is found to be just and proper. The Court should not scrutinize the pleadings with such meticulus care so as to result in genuine claims being defeated on trivial grounds. The pleading has to be read as a whole to ascertain its true import and it is not permissible to cull out a sentence or passage and read it out of the context, in isolation. The intention of the party concerned is to be gathered primarily from the tenor and term of his pleading taken as a whole. In case as question arise as to whether a particular relief has been asked for, the whole of the plaint should be taken into consideration and the substance and not merely the form of the plaint, should be looked into. Under Order 7, Rule 7, C. P. C. the Court can grant a relief, which has not been speciffically prayed for, if the Court thought it just and proper that such a relief should be given.

  • The wording of Order 7, Rule 7, C. P. C. and the observation of the Apex Court and different High Courts thus propagate that even if the Plaintiff has not asked for a specific relief, such relief can be granted by the Court if in the opinion of the Court grant of such relief is just and proper.

  1. The law is well settled that when there is an error in exercise of jurisdiction or when an inferior Court or tribunal acts without jurisdiction or in excess of it, or fails to exercise it, this Court in exercise of its powers under Article 226 of the Constitution will quash the said order. But where there may be conceivably two opinions, it can hardly be said to be an error and not every error can be corrected by a superior Court in exercise of its statutory powers as a Court of appeal or revision._________Vol. 106 CLT 281

Thursday, August 27, 2009

A prisoner wears the armour of basic freedom even behind bars and that on breach thereof by lawless officials the law will respond to his distress signals through writ aid. The Indian human has a constant companion-the Court armed with Constitution. The weapon is Habeas, the pow er is Par t - III and the projectile is Batra, AIR 1978 SC 167.

Sunday, August 23, 2009

When an CBI investigation can be directed

  1. No doubt the Magistrate cannot order investigation by the CBI vide CBI vs. State of Rajasthan and another (Supra), but this Court or the High Court has power under Article 136 or Article 226 to order investigation by the CBI. That, however should be done only in some rare and exceptional case, otherwise, the CBI would be flooded with a large number of cases and would find it impossible to properly investigate all of them.

In Secretary, Minor Irrigation & Rural Engineering Services U.P. and others vs. Sahngoo Ram Arya and another 2002 (5) SCC 521 (vide para 6) , this Court observed that although the High Court has power to order a CBI inquiry, that power should only be exercised if the High Court after considering the material on record comes to a conclusion that such material discloses prima facie a case calling for investigation by the CBI or by any other similar agency. A CBI inquiry cannot be ordered as a matter of routine or merely because the party makes some allegation.

  1. In Union of India vs. Prakash P. Hinduja and another 2003 (6) SCC 195 (vide para 13), it has been observed by this Court that a Magistrate cannot interfere with the investigation by the police. However, in our opinion, the ratio of this decision would only apply when a proper investigation is being done by the police. If the Magistrate on an application under Section 156(3) Cr.P.C. is satisfied that proper investigation has not been done, or is not being done by the officer-in-charge of the concerned police station, he can certainly direct the officer in charge of the police station to make a proper investigation and can further monitor the same (though he should not himself investigate).

  1. We have elaborated on the above matter because we often find that when someone has a grievance that his FIR has not been registered at the police station and/or a proper investigation is not being done by the police, he rushes to the High Court to file a writ petition or a petition under Section 482 Cr.P.C. We are of the opinion that the High Court should not encourage this practice and should ordinarily refuse to interfere in such matters, and relegate the petitioner to his alternating remedy, firstly under Section 154(3) and Section 36 Cr.P.C. before the concerned police officers, and if that is of no avail, by approaching the concerned Magistrate under Section 156(3).

It is true that alternative remedy is not an absolute bar to a writ petition, but it is equally well settled that if there is an alternative remedy the High Court should not ordinarily interfere.

Aggrieved person does not have the right to choose an investigating agency

It has been held by this Court in CBI & another vs. Rajesh Gandhi and another 1997 Cr.L.J 63 (vide para 8) that no one can insist that an offence be investigated by a particular agency. We fully agree with the view in the aforesaid decision. An aggrieved person can only claim that the offence he alleges be investigated properly, but he has no right to claim that it be investigated by any particular agency of his choice.

  1. It is a well settled proposition of law that a writ of certiorary cannot be issued to a subordinate Court/Tribunal/authority exercising judicial/quasi judicial power by supplementing the Judgment of such lower authority with a fresh Judgment/order, unless the order of such subordinate authority is manifestly illegal and unjust and suffers from error of law and fact apparent on the face of it. It is also a well-known principle of law that a writ of certiorary can be issued only if the order of the inferior Tribunal or subordinate Court suffers from an error of jurisdiction, or from a breach of the principles of natural justice or is vitiated by a manifest or apparent error of law. There is no sanction enabling the High Court to reappraise the evidence without sufficient reason in law and reach findings of fact contrary to those rendered by an inferior Court or subordinate Court. (See A.I.R.1986 SC 302, Harbans Lal v. Jagmohan Saran). Nothing has been brought out before this Court to bring the impunged order within the parameters, as envisaged above, so as to call for interference by this Court with the said order by issuance of a writ of certiorary in quashing the same.

  1. Before parting, we note with some anguish that this case is a classic example of how a judicial process can be misused by unscrupulous litigants, more so, when the person concerned himself happens to be an advocate. In the first instance, neither “D.K. Jain” nor “Deepak Jain”, actually one and the same person, challenged the ex-parte decree dated 10th March, 1997 and it was only when execution proceedings were initiated against “Deepak Jain”, that to obstruct execution, he raised a frivolous plea of the identification of the Judgement-debtor, with the result that although over a decade has gone by yet the decree holder has not been able to enjoy the fruits of the money decree so far.__________CLT Vol.108 (231)

  1. Time and again it has been emphasized that judicial propriety and decorum requires that if a Single Judge, hearing a matter, feels that earlier decision of a Single Judge needs re-consideration, he should not embark upon that enquiry, sitting as a Single Judge, but should refer the matter to a larger Bench. Regrettably, in the present case, the Learned Single Judge departed from the said healthy principle and choose to re-examine the same question himself.__________CLT Vol.108 (231)

  1. A bare reading of Section 152 CPC makes it clear that the power of the Court under the said provision is limited to rectification of clerical and arithimetical errors arising from any accidental slip or omission. There cannot be re-consideration of the merits of the matter and the sole object of the provision is based on the maxim actus curiae neminem gravabit, i.e., an act of Court shall prejudice no man. In our Judgment, the issue requiring adjudication by the Executing Court did not call for and was clearly the scope of Section 152 CPC.__________CLT Vol.108 (231)

Law panel for 10 years’ imprisonment for death caused by rash driving

More than 1,00,000 Indians are dying every year in road accidents. More than a million are injured or maimed.

Driving recklessly/dangerously, non-observance of traffic rules, driving without driving licence, driving by untrained/disqualified drivers/minors, driving under the influence of liquor, driving while talking on mobile phone, driving without helmet, ill-health of vehicles and bad road infrastructure are among the causes of accidents, accroding to the report.

For rash driving or riding on a public way in a manner as to endanger human life, the Commission suggested amending Section 279 IPC by introducing Section 279 A and providing for five years’ imprisonment, as against six months at present. Similar under Section 338 IPC for causing grievous hurt by act endangering life or personal safety of others, the Commission suggested five-year imprisonment as against two years at present and for reckless driving under Section 184 IPC, the Commission has recommended a punishment of five years.

“Install CCTV cameras”

The Commission asked the Centre to enact a comprehensive legislation on road traffic law to regulate all kinds of traffic. “As an important part of the enforcement measures, there should be compulsorily installed CCTV cameras at all vulnerable points, to be determined by an expert committee to curb traffic violations.”

Further all motor vehicles should be fitted with irremovable or tamperproof speed governors to regulate speed, the report said.

Friday, August 7, 2009

There is a clear distinction in law regarding pleadings in the Writ Petition and that of a suit proceedings. A petitioner is required adduce evidence to substantiate the pleadings of the Writ Petition. There is nothing on the record to show as on what basis the statement had been made by the Petitioner, that compensation had not been paid to his forefathers. The petitioner was born after 15 years of acquisition of the land. The Petitioner's father or grandfather could have challenged the acquisition proceedings. However, they did not choose to do so. Even if the land had been taken illegally, the issue cannot be examined at such a belated stage. Hence the petition is liable to be dismissed.

Admittedly the right to property had earlier been a fundamental right and now it remains as a constitutional and/or as a human right. No person can be deprived of his property without paying the compensation.

Property in legal sense means an aggregate of rights which are guaranteed and protected by law. It extends to every species of valuable right and interest, more particularly, ownership and exclusive right to a thing, the right to dispose of things in every legal way to possess it, to use it and to exclude everyone else from interfering with it. The dominion or indefinite right of use or disposition which one may lawfully exercise over particular things or subjects is called property.________ (Jilubhai Nanbhia Khachar etc. etc Vs. State of Gujarat & Anr., AIR 1995 SC 142)

The Court further observed that a person who is deprived of his property without authority of law is entitled to compensation.___________CLT Vol. 108 (88)

“Encumbrance” actually mean the burden caused by an act or omission of man and not that created by nature. It means a burden or charge upon property or a claim or lien on the land. It means a legal liability on property. Thus, it constitutes a burden on the title which diminishes the value of the land. So far as the provisions of the land acquisition Act are concerned, the word 'encumbrance' means the interest in respect of which compensation has been made or could have been claimed. These examples of “encumbrance” includes a lease or a mortgage, securities, servitudes and trust, etc. (Vide Colector of Bombay Vs. Nusserwanji Rattanji Mistri and Ors., AIR 1955 SC 298)

In view of the above, the law can be summarized that once the land is acquired it vests in the State free from all encumbrances. It is not the concern of the land owner as how his land is used and whether the land is being used for the purpose for which it was acquired or for any other purpose. He becomes persona non grata once the land vests in the State. He has a right to get compensation only for the same. The person interested cannot claim the right of restitution of land on any ground, whatsoever.______CLT Vol. 108 (93)

Later entry be presumed to be correct until it is proved by evidence to be incorrect and previous entry shall be admissible as evidence of fact existing at the time such entry was made._________CLT. Vol.101 (737)

It is true that accused's act of raping a child of 6 years and murdering her due to gagging her mouth and nosetrix at the time of incident is quite heinous and requires to be condemned but at the same time it cannot be said that it is rarest of the rare case where accused requires to be eliminated from the society. Hence, there is no justifiable reason to impose death sentence.________2002 (1) Cri.80 (SC)

Even otherwise the petitioners could have approached the authorities dealing with complaints under the provisions of the Complaint Handling Procedure. Without exhausting the aforesaid remedies available to the petitioners they should not have rushed to this Court by invoking the extra-ordinary powers enshrined under Article 226 of the Constitution.___________71 CLT, Vol. 95

The principle is that when the only man who can prove a fact has a strong motive for asserting it, his evidence must be received with greater caution than that of a disinterested witness, and that every circumstances of legitimate suspicion which is found to exist must make any reasonable man less ready to accept his uncorroborated testimony.

  1. Why should the evidence of a girl or a woman who complains of rape or sexual molestation, be viewed with doubt, disbelief or suspicion?

    Just as a witness who has sustained some injury in the occurrence, which is not found to be self-inflicted, is considered to be a good witness in the sense that he is least likely to shield the real culprit, the evidence of a victim of a sexual offence is entitled to great weight, absence of corroboration notwithstanding.

    The same degree of care and caution must attach in the evaluation of her evidence as in the case of an injured complainant witness and no more. What is necessary is that the Court must be alive to and conscious of the fact that it is dealing with the evidence of a person who is interested in the outcome of the charge levelled by her.

    If for some reason the Court is hesitant to place implicit reliance on the testimony of the prosecutrix it may look for evidence which may lend assurance to her testimony short of corroboration required in the case of an accomplice.

    If the totality of the circumstances appearing on the record of the case discloses that the prosecutrix does not have a strong motive to falsely involve the person charged, the Court should ordinarily have no hesitation in accepting her evidence.____________87CLT, 709, 710

Distinction between Civil and Criminal Contempt

A civil contempt is failure to do something ordered to be done by a court in a civil action for the benefit of the opposing party therein, while “a criminal contempt” is conduct that is directed against the dignity and authority of the court._____________S.S.Roy V.State, 54 Cr.L.J.1578 : AIR 1953 Orissa 266 : I.L.R. 1952 Cut. 467.

    In order to award death sentence the court should ask itself and answer the following question : (i) Was there something uncommon about the crime which renders sentence of imprisonment for life inadequate and calls for a death sentence? (ii) Were the circumstances of the crime such that there is no alternative but to impose death sentence even after according maximum weightage to the mitigating circumstances which speak in favour of the offender?___________1999, Crimes, Dec 314 (S.C)