SUPREME COURT

• CIVIL LAWS

Ajab Singh and Ors. Vs. Antram and Ors. (Decided on 03.02.2009) (MANU/SC/0119/2009)

Scope of interference by Superior Court in an order pronounced in exercise of Revisional Jurisdiction - Appellant by way of present appeal questioned the correctness of order as bad in law and having been passed in ignorance of the bar of limitation - Applicability of Section 6 of the Limitation Act and Section 341 of the UP Act

On conjoint reading of the two provisions, Section 6 of the Limitation Act is expressly applicable to the proceedings under the UP Act. The decision of the Revisional Authority in entertaining the revision at the instance of the contesting Respondent Nos. 1 and 2 therefore did not suffered from any jurisdictional error. The legal position well settled that unless finding of the revisional authority suffers from error of jurisdiction, the Superior Court should not interfere. Appellants in the instant case failed to prove that they were in actual physical possession. In such factual background the findings of the lower authorities that the name of the Appellants should be recorded, as Bhumidar was not factually correct. Thus the finding based on the analysis of the factual aspect by the revisional authority does not normally gets upset by a superior Court unless demonstrably shown to be perverse.

• CONSTITUTIONAL LAWS

Dalbir Singh vs. State of U.P. and Ors. (Decided on 03.02.2009) (MANU/SC/0110/2009)

Custodial torture and diabolic acts of the police officials - Constitutional provisions to check such incidents

Custodial violence, torture and abuse of police power are not peculiar to this country, but it is widespread. It has been the concern of international community because the problem is universal and the challenge almost global. Article 21, one of the luminary provisions in the Constitution of India, 1950 and a part of the scheme for fundamental rights occupies a place of pride in the Constitution. The Article mandates that no person shall be deprived of his life and personal liberty except according to the procedure established by law. Articles 20(3) and 22 of the Constitution further manifest the constitutional protection extended to every citizen and the guarantees held out for making life meaningful and not a mere animal existence. The dehumanizing torture, assault and death in custody, which have assumed alarming proportions, raise serious questions about the credibility of rule of law and administration of criminal justice system. Rarely in cases of police torture or custodial death, there is any direct ocular evidence of the complicity of the police personnel alone who can only explain the circumstances in which a person in their custody had died. Torture in custody flouts the basic rights of the citizens recognized by the Indian Constitution and is an affront to human dignity. Unless stern measures are taken to check this, the foundations of the criminal justice delivery system would be shaken.

• CRIMINAL LAWS

Ashok Kumar Vs. State of U.P. and Anr. (Decided on 03.02.2009) MANU/SC/0117/2009

Challenge to order of High Court granting Bail to Respondent No. 2 - Second bail application was filed seeking bail on the ground that the ballistic expert report completely falsified the prosecution case - Appellant submitted that the approach of the High Court was clearly erroneous on various grounds

Contentions of Appellant against the impugned order was held to be right contended i.e. High Court appeared to have arrived at a definite conclusion about non possibility of the injuries having been sustained in the manner indicated by the prosecution. While considering the bail application it was held that such finding should not have been recorded. Since the accused in the instant case was on bail for considerable length of time, it was directed that instead of canceling the order of bail, the impugned order since suffered from various infirmities, the trial be completed within three months. If the complainant or any witness seeks protection for appearance before the Court during trial, the same can be provided by the concerned police officials.

Mohabbat and Ors. Vs. State of M.P. (Decided on 03.02.2009) MANU/SC/0116/2009

Challenge to order of Conviction – Witnesses projected as eye witnesses by the prosecution did not support the prosecution version and resiled from the statements made during investigation - One witness, brother of the deceased, reiterated the statements made during investigation, relying on which, Trial Court found the accused persons guilty

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. Relationship is not a factor to affect credibility of a witness. It is more often than not that a relation would not conceal actual culprit and make allegations against an innocent person. Foundation has to be laid if plea of false implication is made. In such cases, the court has to adopt a careful approach and analyze evidence to find out whether it is cogent and credible. The ground that the witness being a close relative and consequently being a partisan witness, should not be relied upon, has no substance.

State of M.P. Vs. Ramesh @ Chhinge and Ors. (Decided on 03.02.2009) MANU/SC/0108/2009

Challenge to judgment directing Acquittal of Respondents tried for allegedly committing offence U/s 302 of the Indian Penal Code, 1860 - High Court noted that there were material discrepancies in the eye- witnesses' version

Judgment of the High Court was held to be fully unreasoned. The evidence infact clearly established how and who caused farsa injury on the head of the deceased, which was not noticed by the High Court. Further there was no discussion of the eye - witnesses' version and even the medical evidence. The farsa injury caused on the head was not been noticed. The impugned High Court judgment was held to be clearly unsustainable in view of the deficiencies highlighted. Matter remitted to the High Court for detailed analysis of the relevant evidence and to give fresh decision on merit afresh.

State of M.P. Vs. Kashiram and Ors. (Decided on 02.02.2009) (MANU/SC/0107/2009)

Order of Conviction - Offence allegedly committed under sections 307 r/w Sections 149 and 148 of the Indian Penal Code, 1860 - Sessions Court ordered conviction - By the impugned judgment, however, the High Court held that the appropriate conviction - would be U/s 326 r/w S. 149 IPC - Determination of grounds to justify conviction under section 307 of the Indian Penal Code, 1860

High Court in the instant case completely overlooked evidence on record and the impugned judgment shows total non-application of mind. To justify a conviction under Section 307, it is not essential that bodily injury capable of causing death should have been inflicted. Although the nature of injury actually caused may often give considerable assistance in coming to a finding as to the intention of the accused, such intention may also be deduced from other circumstances, and may even, in some cases, be ascertained without any reference at all to actual wounds. The Section makes a distinction between an act of the accused and its result, if any. Such an act may not be attended by any result so far as the person assaulted is concerned, but still there may be cases in which the culprit would be liable under this Section. It is not necessary that the injury actually caused to the victim of the assault should be sufficient under ordinary circumstances to cause the death of the person assaulted. What the Court has to see is whether the act, irrespective of its result, was done with the intention or knowledge and under circumstances mentioned in the Section. An attempt in order to be criminal need not be the penultimate act. It is sufficient in law, if there is present an intent coupled with some overt act in execution thereof. It is sufficient to justify a conviction under Section 307 if there is present an intent coupled with some overt act in execution thereof. It is not essential that bodily injury capable of causing death should have been inflicted. The Section makes a distinction between the act of the accused and its result, if any. The Court has to see whether the act, irrespective of its result, was done with the intention or knowledge and under circumstances mentioned in the Section. Therefore, an accused charged under Section 307 IPC cannot be acquitted merely because the injuries inflicted on the victim were in the nature of a simple hurt. Whether there was intention to kill or knowledge that death will be caused is a question of fact and would depend on the facts of a given case.

Kishangiri Mangalgiri Goswami Vs. State of Gujarat (Decided on 28.01.2009) MANU/SC/0096/2009

Appellants convicted for offences punishable Under sections 306 and 498A of the Indian Penal Code, 1860 and S. 3 of the Dowry Prohibition Act, 1961 – Trial Court found that the letters written by the accused clearly established demand of dowry and further the suicide was clearly abetted by the acts and conduct of the Appellant – High Court also concurred with the views of the trial Court – Appellant questioned the letters stating the same as not signed by him and also the same as not being addressed to anyone - Further, there was no material to show that the Appellant had subjected the deceased to such cruelty and harassment as to instigate her to commit suicide

Abetment involves a mental process of instigating a person or intentionally aiding that person in doing of a thing. In cases of conspiracy also it would involve that mental process of entering into conspiracy for the doing of that thing. More active role which can be described as instigating or aiding the doing of a thing it required before a person can be said to be abetting the commission of offence under Section 306 of IPC. The offence of abetment is a separate and distinct offence provided in the Act as an offence. The abetment may be by instigation, conspiracy or intentional aid, as provided in the three clauses of Section 107. Section 109 provides that if the act abetted is committed in consequence of abetment and there is no provision for the punishment of such abetment, then the offender is to be punished with the punishment provided for the original offence. 'Abetted' in Section 109 means the specific offence abetted. Therefore, the offence for the abetment of which a person is charged with the abetment is normally linked with the proved offence. The conviction in the instant case in so far its relation to Section 306 IPC, was held to be not sustainable in view of the facts of the case and was set aside. However, conviction under Section 498A IPC and Section 3 of DP Act was sustained.

HIGH COURTS

• SALES TAX/VAT

KERALA HIGH COURT

State of Kerala Vs. Respondent: Millenium Polypackers (Decided on 04.12.2008) MANU/KE/0376/2008

Assessee is a dealer in plastic bags and plastic covers. claimed exemption from payment of sales tax on the ground that the sale of plastics bags and plastic covers is a second sales. assessing authority has rejected the claim. assessee was successful both before the first appellate authority and the Appellate Tribunal.Appeal filed before High court by the department. whether conversion of plastic sheets/tubings into plastic covers would amount to manufacture? 

while processing plastic sheets/tubings into plastic covers/bags, no new commercially different commodity would emerge and therefore, there is no manufacture as such and since purchase of plastic sheets has already suffered tax, the sales turnover of plastic covers/bags is a second sale and therefore, not liable for payment of tax under the Act. 

• CRIMINAL 

BOMBAY HIGH COURT

Suresh Desai Son of Prataprao Desai Vs. Respondent: State through the Bicholim Police Station (Decided on 14.01.2009) MANU/MH/0043/2009

Petitioner was convicted under Sections 279, 304A, 337 and 338 IPC.by the Trial court. Appellate court also confirmed the judgement of the Trial court. Revision filed by the petitioner before the High court against the order of the Appellate court. 

The scope of revision is always limited. The Court can look into the legality and propriety of the order passed by the Court below and cannot reassess the evidence over again unless it is shown prima facie that appreciation of the evidence was perverse. 

• SERVICE 

CHHATTISGARH HIGH COURT 

Alok Agrawal, Hrishikesh Prasad and Santosh Agrawal all employees of Bhilai Steel Plant Vs. Respondent: Steel Authority of India Limited and Managing Director (Decided on 05.01.2009) MANU/CG/0002/2009

petitioners have impugned the Circular dated 18.7.2008 (Annexure P/12), whereby applications have been invited from eligible non- executive employees for consideration for promotion to the posts of Junior Officers at all Plants/Units of SAIL, and as per selection procedure, the eligible candidates are required to appear in written test followed by interview. Writ petition filed. 

Once appointed an employee has no vested right in regard to the terms of service but acquires a status and, therefore, the rights and obligations thereto are no longer determined by consent of parties, but by statute or statutory rules which may be framed and altered unilaterally by the Government.