SUPREME COURT

• CRIMINAL LAWS

Heeralal vs. State of M.P. (Decided on 16.03.2009) MANU/SC/0385/2009

Validity of dying declaration - Conviction for offence punishable under Section 302 of the Indian Penal Code, 1860 under challenge - Appellant abjured the guilt and pleaded innocence on the ground that he brought the deceased in burnt condition to the hospital, along with his parents and uncle for treatment, was apprehended by the police at the hospital and witnesses lied to take revenge of previous grudge

In the first dying declaration recorded by a Nayab Tehsildar, it was clearly stated that the deceased tried to set herself ablaze by pouring kerosene on herself, but in the subsequent declaration, recorded by another Nayab Tehsildar, a contrary statement was made. Another dying declaration was noticed that one dying declaration was earlier made before the Doctor. Trial Court and the High Court came to abrupt conclusions on the purported possibility that the relatives of the accused may have compelled the deceased to give a false dying declaration. No material was brought on record to justify such a conclusion. In view of the apparent discrepancies in the two dying declarations it was held to be unsafe to convict the Appellant in the instant case and accordingly conviction was set aside

Santosh vs. State of U.P. (Decided on 16.03.2009) MANU/SC/0384/2009

Order passed by a ld. Single Judge of the Allahabad High Court dismissing Revision Petitions of the Appellant under challenge - Out of the two revisions petitions filed one was by the Appellant - Matter was taken up ex-parte and the petition was dismissed after referring to various aspects - Application filed for recall was dismissed on the ground that the order sought to be recalled was passed on merits

While issuing notice on the relevant date it was indicated that the matter might be remitted to the High Court for fresh hearing, as the revision petition was dismissed ex-parte. During the hearing of the application Counsel for the Appellant indicated various reasons for non-appearance. In such circumstances it was held to be appropriate to set aside the impugned order and remit the matter to the High Court for a fresh consideration on merits. Instant Appeal was allowed.

• PROPERTY LAWS

Abdul Rahim and Ors. Vs. SK. Abdul Zabar and Ors. (Decided on 06.03.2009) MANU/SC/0379/2009

Interpretation and/or application of the Islamic Law on Gift vis-à-vis handing over of possession of the property gifted

A gift indisputably becomes complete when a person transfers with immediate effect the ownership of his movable or immovable property to another person, and that other person himself or someone else with his consent takes possession of the property gifted. Under Mohammadan Law it is a contract which takes effect through offer and acceptance - Conditions to make a valid and complete gift under the Mohammadan Law are (a) The donor should be sane and major and must be the owner of the property which he is gifting; (b) The thing gifted should be in existence at the time of hiba; (c) If the thing gifted is divisible, it should be separated and made distinct; (d) The thing gifted should be such property to benefit from which is lawful under the Shariat; (e) The thing gifted should not be accompanied by things not gifted; i.e. should be free from things which have not been gifted; (f) The thing gifted should come in the possession of the donee himself, or of his representative, guardian or executor; Also if by reason of a valid gift the thing gifted has gone out of the donee's ownership, the same cannot be revoked. Deed of gift in the instant case was a registered containing a clear and unambiguous declaration of total divestment of property and registered document carries with it a presumption that it was validly executed. Constructive possession of the suit premises must be held to have been handed over by the donor as he had himself prayed for mutation of S2's name in the revenue record. High Court misconstrued the order of the Revenue Authority and also failed to take into consideration the import and purport of the donor's application before the Tahasildar

• LIMITATION ACT

Abdul Rahim and Ors. Vs. SK. Abdul Zabar and Ors. (Decided on 06.03.2009) MANU/SC/0379/2009

Suit governed by Article 59 of the Schedule appended to the Limitation Act - Determination of period of limitation

Suit for cancellation of transaction whether on the ground of being void or voidable would be governed by Article 59 of the Limitation Act - Such suit therefore should be filed within a period of three years from the date of knowledge of the fact that the transaction had taken place

• CRIMINAL LAWS/NARCOTICS

Inspector of Customs, Akhnoor J and K Vs. Yash Pal and Anr. (Decided on 06.03.2009) MANU/SC/0380/2009

Acquittal directed by impugned judgment under challenge - Respondents in the instant case were found guilty of offences punishable under Sections 8 and 21 of the Narcotic Drugs and Psychotropic Substances Act, 1985 - In appeal against the order of conviction passed by the Trial Court, the defence taken was non-compliance of Section 41(2) of the Act and not putting the alleged incriminating materials to the accused while the statement was recorded under Section 342 of the old Code of Criminal Procedure or Section 313 of the new Code - High Court finding substance in the second plea directed acquittal

High Court did not accept the stand relating to non-compliance of Section 41(2) of the Act. It only interfered on the ground that the relevant incriminatory materials were not put to the accused when they were being examined. In the instant case there was no reference to any of the incriminating materials. If the foundation of the prosecution case was the alleged confession before the Customs Authorities, that material was not brought to the notice of the accused persons. No infirmity was held to be found in the impugned judgment to warrant interference and Appeal accordingly was dismissed.

HIGH COURT

• CRIMINAL

DELHI HIGH COURT

BSES Rajdhani Power Ltd. vs. Ishwar Chand (Decided on 10.02.2009) MANU/DE/0195/2009

Electricity - Complaint filed against the respondent/accused for electricity theft - Trial court issued show cause notice u/s 344 of Crpc to the petitioner at this stage of summoning of evidence - Whether order is sustainable in law?

The opinion formed by the trial Judge that the petitioners filed a false case against accused Mangli Ram on the date of the alleged inspection not proved before the trial Judge and was based upon the only statement made by Respondent No. 1 even if it was a correct fact the question of the knowledge of the petitioners about this fact had not been substantiated by any cogent evidence on behalf of respondent No. 1. Thus, there was no occasion for issuing show cause notice under Section 344 Cr.P.C. at that stage.

• ELECTRICITY

PATNA HIGH COURT

Bihar State Electricity Board vs. The State of Bihar (Decided on 13.01.2009) MANU/BH/0014/2009

Electricity - Question before the court was whether the impugned orders passed by the Electrical Inspector while exercising power under Section 26(2) can pass order setting aside any electrical bill raised by the petitioner for the reasons beyond the ambit of Section 26(6) of the Indian Electricity Act, 1910.

From perusal of the impugned orders passed by the Electrical Inspector it is apparent that he has gone into the question of load factor, tampering of meter and other issues to set aside the bills which in no way can be said to be as a result of defective meter. Court comes to an opinion that the Electrical Inspector has exercised his authority beyond the power and ambit of Sections 24 or 26(6) of the Act. dispute would be settled by correcting the bills as per the stand taken before this Court with regard to the load factor.

• COMMERCIAL

ORISSA HIGH COURT

Omfed Bazar Sangha vs. State of Orissa (Decided on 08.01.2009) MANU/OR/0013/2009

Petitioner association filed the petition claiming preference in allotment of the shops in new commercial complex on the ground that they are running businesses with the knowledge of the respondents in the same area for long time.

The members of the Petitioner- Sangha had been rank trespassers and the list-referred to above which appears to have been prepared in collusion with the statutory authorities is definitely not worth placing reliance because moot of the persons whose names have been shown in the list in 1990 at the time of widening the road were not affected. They cannot claim that they had any legally protected right, which can be enforced through Writ Court.

• CIVIL

ALLAHABAD HIGH COURT

Gagan Srivastava vs. UOI (Decided on 27.02.2009)

Petitioners have challenged the vires of Rule 8(d) of Ancient Monuments and Archaeological Sites and Remains Rules, 1959. Matter is with regarding to grant of Licence to work as tourist guide. Question before the court was whether Rule 8 is violative of Art 19 of constitution of India?

Rule 8(d) cannot be held to be ultra vires because the Parliament has enacted the Act, 1958 which is referable to Entry 67 of List 1 of the 7th Schedule of the Constitution of India. Rules have been framed under the Act 1958 i.e., 1959 Rules. Rule 8(d) specifically requires authority or permission from an Archaeological Officer for permitting a person to enter into a protected monument and work as a guide on monetary consideration. Statutory scheme makes it mandatory that without an authority or permission from the Archaeological Officer, no person can claim as a matter of right to work as a guide in a protected monument.

MADRAS HIGH COURT

Paramasivam vs. Elumalai (Decided on 28.01.2009) MANU/TN/0240/2009

Burden of proof - Trial court granted injunction to the respondent. Petitioner assailed the judgment of the Trial court on the ground that burden of proof lies on the respondent/plaintiff to prove that he is possession of the disputed property. Question before the court was the burden of proof lies on whom?

It is the duty of the plaintiff/respondent to go into box first and adduce evidence to prove that as on the date of filing of the suit, he was in possession and enjoyment of the same. Simply because the defendant admitted that the plaintiff is the owner of the property and he and the defendant entered into an agreement to sell under which the defendant/petitioner was put in possession, the onus or the initial burden would not be on the defendant. It is for the plaintiff only to prove his case at the first instance.

• BANKING

DELHI HIGH COURT

R.P. Mathur Prop. Radhika Leather Fashions vs. S.R.P. Industries Ltd (Decided on 09.02.2009) MANU/DE/0191/2009

Dishonor of cheque -Complaint filed before Trial court against the petitioner for dishonor of cheque by the respondent and F.I.R was lodged with C.B.I by the respondent -Trial court took cognizance offence and issued summon in both the cases. Petitioner challenged the same - Question before the court was whether the case is against the principles of double jeopardy?

In the facts of this case two sets of offence have been disclosed categorically and clearly, that is offence of cheating in relation to the complaint subject matter of the CBI investigation and commission of offence under Section 138 of N.I. Act on account of non-payment of the cheque amount within the time prescribed for which the notice was issued to the petitioner by the complainant in accordance with the scheme of the provisions under Section 138 of the N.I. Act. It is not a case of double jeopardy inasmuch as separate punishments are provided for the two set of offences, that is for dishonouring of the cheque under Section 138 of the N.I. Act which cannot exonerate the petitioner for having committed other offences under Section 420/477A/120B IPC to have cheated the complainant on the basis of false assurance given by him supported by the bankers etc. Distinct statutory provisions will be treated as involving separate offences for double jeopardy purposes only if 'each provision requires proof of an additional fact which the other does not'. Where the same evidence suffices to prove both crimes, they are the same for double jeopardy purposes, and the clause forbids successive trials and cumulative punishments for the two crimes. The offences must be joined in one indictment and tried together unless the defendant requests that they be tried separately.