SUPREME COURT

• CONSTITUTIONAL LAWS

Syed Askari Hadi Ali Augustine Imam and Anr. vs. State (Delhi Admn.) and Anr. (Decided on 03.03.2009) MANU/SC/0343/2009

Effect of pendency of a probate proceeding vis-à-vis a criminal case involving allegations of forgery of a Will - Exercise of discretionary jurisdiction under Article 136 of the Constitution

The question as to whether in the facts and circumstances of the case one or the other proceedings would be stayed would depend upon several factors including the nature and the stage of the case. Ordinarily a criminal proceeding has primacy over the civil proceeding. Precedence to a criminal proceeding is given having regard to the fact that disposal of a civil proceeding ordinarily takes a long time and in the interest of justice the former should be disposed of as expeditiously as possible. The present case held to be not a case for exercise of discretionary jurisdiction under Article 136 of the Constitution of India having regard to the facts and circumstances. Appeal accordingly was dismissed.

• CRIMINAL LAWS

State of M.P. Vs. Dhara Singh and Anr. (Decided on 03.03.2009) MANU/SC/0332/2009

Acquittal - Challenge thereto - Trial Court had convicted Respondent No. 1 for offence punishable under Section 302 of the Indian Penal Code, 1860 and Sections 25 and 27 of the Arms Act, 1959 - Respondent No. 2 was convicted under Section 302 read with Section 34 IPC - High COurt in appeal directed acquittal by extending benefit of doubt

The conclusion of the High Court that one of the witnesses name did not find place in the FIR was not correct. Other witness clarified that in fact the name of said witness was indicated in the FIR as `Kaptan'. Additionally, there was no discussion of the evidence of the eye witnesses. In what cases the examination of a ballistic report is essential to further the prosecution version would depend upon the circumstances of each case. As held in Surendra Paswan v. State of Jharkhand MANU/SC/0978/2003, "So far as the non-seizure of blood from the cot is concerned, the investigating officer has stated that he found bloodstained earth at the place of occurrence and had seized it. Merely because it was not sent for chemical examination, it may be a defect in the investigation but does not corrode the evidentiary value of the eyewitnesses. The investigating officer did not find presence of blood on the cot. The trial court and the High Court have analysed this aspect. It has been found that after receiving the bullet injury the deceased leaned forward and whatever blood was profusing spilled over onto the earth. So far as the effect of the bullet being not sent for ballistic examination is concerned, it has to be noted that Sukhwant Singh case is not an authority for the proposition as submitted that whenever a bullet is not sent for ballistic examination the prosecution has to fail. In that case one of the factors which weighed with this Court for not finding the accused guilty was the prosecution's failure to send the weapon and the bullet for ballistic examination." High Court was held to be in error in directing acquittal of the Respondents and accordingly finding of the High Court was set aside and that of the trial Court was restored.

Lunaram Vs. Bhupat Singh and Ors. (Decided on 27.02.2009) MANU/SC/0296/2009

Interference with order of acquittal - Challenge to the order passed by High Court directing acquittal of the Respondents convicted and sentenced by the ld. Spl. Judge, SC and ST, Prevention of Atrocities Case - High Court in its finding noted that the evidence of some witnesses did not had any credibility and it was full of omissions and contradictions, which were held to be not of any minor nature.

There is no embargo on the Appellate court reviewing the evidence upon which an order of acquittal is based. Generally, the order of acquittal should not be interfered with because the presumption of innocence of the accused is further strengthened by acquittal. However if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view, which is favourable to the accused, should be adopted. In a case where admissible evidence is ignored, a duty is cast upon the Appellate court to re-appreciate the evidence where the accused has been acquitted, for the purpose of ascertaining as to whether any of the accused really committed any offence or not. High Court in the instant case had noted that the prosecution version was not clearly believable. Some of the so-called eyewitnesses stated that the deceased died because his ankle was twisted by an accused. Others said that he was strangulated. It was the case of the prosecution that the injured witnesses were thrown out of the bus. The doctor who conducted the post mortem and examined the witnesses had categorically stated that it was not possible that somebody would throw a person out of the bus when it was in running condition. Considering the parameters of appeal against the judgment of acquittal, no interfere in the appeal was held to be called for and accordingly Appeal was dismissed.

Joginder Singh Vs. State of Punjab (Decided on 27.02.2009) MANU/SC/0299/2009

Related witness - Credibility questioned - High Court vide impugned judgment upheld the conviction of the Appellant for offence punishable under Section 302 of the Indian Penal Code, 1860 - In appeal the primary stand was that the so called eyewitnesses were related to the deceased and, therefore, their evidence should not have been relied upon - High Court found that merely because the prime witnesses were related to the deceased that did not in any event affect the credibility of their evidence

Merely because the eyewitnesses are family members, their evidence cannot `per se' be discarded. When there is allegation of interestedness, the same has to be established. Mere statement that being relatives of the deceased they are likely to falsely implicate the accused cannot be a ground to discard the evidence which is otherwise cogent and credible - Ground that the witness being a close relative and consequently being a partisan witness, should not be relied upon, has no substance - Judicial approach has to be cautious in dealing with such evidence; but the plea that such evidence should be rejected because it is partisan cannot be accepted as correct - It cannot be laid down as a rule of universal application that when there is one shot fired, Section 302 IPC is ruled out - It would depend upon the factual scenario, more particularly, the nature of weapon, the place where the injury is caused and the nature of the injury - In the instant case it has been clearly established that the accused aimed at the head of the deceased and fired the shot which hit him on his head and that too was fired from a close range - Appeal dismissed

• SERVICE LAWS

Praveen Bhatia Vs. Union of India (UOI) and Ors. (Decided On 05.03.2009) MANU/SC/0357/2009

High Court vide impugned judgment dismissed the writ petition filed by the Appellant challenging the order whereby he was compulsorily retired in exercise of powers conferred by Section 19 of the Air Force Act, 1950 and Rule 15 of the Air Force Rules, 1969 - Appellants stand was that the court of enquiry has exonerated him on all counts except late filing of property returns which according to him was not of serious nature to warrant compulsory retirement

The range of activities which may amount to acts which are inconsistent with the interest of public service and not befitting the status, position and dignity of a public servant are so varied that it would be impossible for the employer to exhaustively enumerate such acts and treat the categories of misconduct as closed - It has, therefore, to be noted that the word "misconduct" is not capable of precise definition. But at the same time though incapable of precise definition, the word "misconduct" on reflection receives its connotation from the context, the delinquency in performance and its effect on the discipline and the nature of the duty - The act complained of must bear a forbidden quality or character and its ambit has to be construed with reference to the subject-matter and the context wherein the term occurs, having regard to the scope of the statute and the public purpose it seeks to serve - As held in Union of India and Ors. v. Harjeet Singh Sandhu MANU/SC/0248/2001, in the background of Rule 14 of the Army Rules, it was held that any wrongful act or any act of delinquency which may or may not involve moral turpitude would be "misconduct" under Rule 14 - Further in State of Punjab and Ors. v. Ram Singh Ex. Constable MANU/SC/0426/1992, it was held that the term "misconduct" may involve moral turpitude. It must be improper or wrong behaviour, unlawful behaviour, wilful in character, forbidden act, a transgression of established and definite rule of action or code of conduct but not mere error of judgment, carelessness or negligence in performance of the duty; the act complained of bears forbidden quality or character - Conduct rules of the Government and public sector corporations constitute a code of permissible acts and behaviour of their servants - Scheme of the Conduct Rules is to first of all enunciate a general rule of conduct and behaviour followed by specific prohibitions and restrictions - Power of the Court to interfere with the quantum of punishment is extremely restricted and only when the relevant factors have not been considered the Court can direct re-consideration or in an appropriate case to certain litigation, indicate the punishment to be awarded; and that can only be in very rare cases - As evident from record that the prescribed period for filing property return is six months and though Appellant was aware of the requirement he did not choose to file any return, even during the course of enquiry no return was filed and ultimately after show cause notice was issued it was filed. That being so there was held to be no merit in the instant appeal and the same was accordingly dismissed.

HIGH COURT

• BANKING

BOMBAY HIGH COURT

Lt. Col. Anil Bhat, Sucheta Bhat and Nadiya Bhat of Delhi, Indian Inhabitant Vs. Citibank (Decided on 09.02.2009) MANU/MH/0094/2009

Banking- Jurisdiction- Plaint was filed before Debt Recovery Appellate Tribunal by the respondent. Tribunal ordered that as the plaint was with out jurisdiction, it should be presented before proper court. Application was filed under Section 19 of the Act is neither a plaint nor a suit as contemplated under the Code of Civil Procedure and as the Recovery of Debts Due to Bank & Financial Institution Act, 1993. Question before the court was whether the tribunal would have no jurisdiction to direct return of the Original Application to the Respondent for presentation to the proper Court ?

Tribunal would have no jurisdiction to direct return of the plaint after it came to the conclusion that it had no jurisdiction over the subject matter.

• CIVIL

BOMBAY HIGH COURT

Bandekar Brothers Pvt. Ltd. Vs. V.G. Quenim (Decided on 10.02.2009) MANU/MH/0114/2009

Civil-Both the parties filed two separate suits before Trial. Plaintiff/ Appellant filed an application before Trial Court under Order 13, Rule 10 praying for calling for record of the another suit , to rely on the evidence in that suit. Trial court dismissed the application filed by the respondent. Question before the court was whether is it permissible to rely on the evidence of the witness in another suit for the purposes of the present suit ?

Record and proceedings in another suit, cannot be read in evidence unless documents concerned are tendered in evidence consistent with the procedure governing the trial.

• COMPANY

BOMBAY HIGH COURT

Intertek Testing Services India Pvt. Ltd., a Company incorporated under the Companies Act, 1956 Vs. (Decided on 06.02.2009) MANU/MH/0096/2009

Company- Change of name - Two companies amalgamated with the approval of the court. In amalgamation scheme there was proposal for change of name. Transferee company/Applicant filed an application for change of name before Registrar of Companies which was rejected.

Under Section 394(A) of the Companies Act, it is mandatory for the Court to give notice on every application made to it under Sections 391 or 394 to the Central Government. Moreover, the Court is bound to take into consideration the representations if any are made to it by the Government before passing an order under any of these sections. Notice given admittedly no objection raised by Regional director. If objections to the change in the name had been taken when the Petition was considered, it would have been open to the Court to consider whether or not the change in the name ought to be permitted. That stage has passed in the present case.

R.O.C. is bound to comply with the order of this Court sanctioning the scheme.

• CRIMINAL

MADRAS HIGH COURT

Mohan @ Mohan Reddy Vs The Commissioner of Police and The Secretary to Government, Prohibition and Excise Department (Decided on 23.01.2009) MANU/TN/0195/2009

Criminal- Habeous corpous - Petitioner/detenue was detained under Tamil Nadu Prevention of Dangerous Activities of Bootleggers, Drug Offenders, Forest Offenders, Goondas, Immoral Traffic Offenders, Sand Offenders, Slum Grabbers and Video Pirates Act, 1982. Earlier Habeous corpous petition filed before High Court by the petitioner was dismissed. Present Habeous corpus petition filed. Question before the court was whether the habeous corpous petition is hit by the principles of Resjudicata?

No reason, whatsoever, has been offered on the part of the detenu, as to why the grounds, which have been brought before Court now in this petition, were not raised earlier, though they were very well available to him. On a careful perusal of the entire materials placed on record and also the so-called new grounds raised by the petitioner, Court do not consider them as the new ones since they are only the grounds with some surgical changes, with the context, substance and essence remaining the same with that of the grounds raised earlier.No change in circumstances.

Rani, Arjunan and Subbu Vs State by Inspector of Police (Decided on 27.01.2009) MANU/TN/0159/2009

Conviction based on Extra judicial confession - Deceased found dead on the railway tracks and Appellants were arrested for the murder of the deceased. Trial court convicted the Appellants on the basis of their extra judicial confession - Whether conviction valid ?

Except the extra judicial confession, the prosecution had no evidence to offer. Hence it would be highly unsafe to sustain conviction on such a weakest piece of evidence. Therefore, the appellants are entitled for acquittal.

• LABOUR AND INDUSTRIAL

BOMBAY HIGH COURT

Directorate of Health Services, Government of Goa Vs. Tukaram S. Gaonkar (Decided on 16.02.2009) MANU/MH/0108/2009

Labour and industrial- Compensation - Deceased died while she was in the employment of the employer. On an application by the claimants , Commission awarded compensation Rs. 49,341/- - Whether Commission rightly awarded the compensation?

There is no evidence of even casual nexus between the nature of employment and her death. Since there is no connection with the cause of death and employment nor did she die of accident during the course of her employment, the claimant is not entitled to any compensation. The appeal must therefore, be allowed and order of Commission set aside.