SUPREME COURT

• CRIMINAL LAWS

Bhairon Singh v State of Madhya Pradesh (Decided on 29.05.2009) MANU/SC/0908/2009

In a case where accused has been acquitted of the offence punishable under Sections 304B and 306 of the Indian Penal Code, and the death of wife is neither homicidal nor suicidal but accidental whether the oral evidence of witnesses about what the deceased had told them against the accused about the treatment meted out to her admissible under Section 32(1) of the Evidence Act to sustain conviction under Section 498A, IPC?

The statement of a dead person is admissible in law if the statement is as to the cause of death or as to any of the circumstance of the transactions, which resulted in her death, in a case in which the cause of death comes into question. What the concerned witnesses in the instant case deposed had no connection with any circumstance of transaction which resulted in her death. The death of deceased was neither homicidal nor suicidal; it was accidental. Since for an offence under Section 498A simpliciter, the question of death is not and cannot be an issue for consideration, the evidence of concerned witnesses hardly an evidence in law to establish such offence and thus section 32(1) of the Evidence Act does not get attracted.

The rule embodied in Section 6 of the Evidence Act is usually known as the rule of res gestae. What it means is that a fact, which, though not in issue, is so connected with the fact in issue "as to form part of the same transaction" becomes relevant by itself. To form particular statement as part of the same transaction utterances must be simultaneous with the incident or substantial contemporaneous that is made either during or immediately before or after its occurrence. Section 6 of the Evidence Act, in the facts and circumstances of the case, insofar as admissibility of a statement of concerned witnesses about what the deceased had told them against the accused of the treatment meted out to her is concerned, is not at all attracted.

Fateh Chand vs State of Haryana (Decided on 29.5.2009) MANU/SC/0912/2009

Conviction and sentence under Section 376 and 366 of the Indian Penal Code - High in appeal against order of conviction passed by the Trial Court held that at the time of incident prosecutrix was below 16 years of age and Accused committed rape on her - Prosecutrix was thereafter coerced to indulge in flesh trade and therefore conviction and sentence correct - Hence this appeal - Accused/ appellant urged that there was inordinate delay in lodging the FIR also there was no physical injury marks of any nature present on the body of prosecutrix

The delay was bound to occur as the FIR was filed after return of the prosecutrix after one and a half years remaining under the ordain of the accused/appellant. The issue of not having physical injury marks held as irrelevant and not worth taking into consideration for the simple reason that the accused had raped the prosecutrix immediately after taking her away to Jaipur and she was examined after one and a half years from the date of abduction and rape. She was forced to indulge in prostitution during this period. Therefore, the prosecutrix had become habitual to sexual intercourse. In such a fact-situation, question of having any physical injury marks would not arise. Appellant took the prosecutrix from the lawful custody of her parents and she was subjected to rape by him and was coerced to indulge in prostitution. Thus, the case certainly boarded on trafficking of women. Appeal filed by the accused was dismissed.

State of Punjab Vs. Manjit Singh and Ors. (Decided on 28.05.2009) MANU/SC/0895/2009

Quantum of Punishment - Awarding death sentence - Determination of cases as to when to be regarded as falling under rarest of rare category

The Code confers a wide discretion on the court in the matter of awarding appropriate punishment by prescribing the maximum punishment and in some cases both the maximum as well as the minimum punishment for the offence. Though no general guidelines are laid down in the Code for the purpose of awarding punishment, generally the judicial discretion of the court is guided by the principle that the punishment should be commensurate with the gravity of the offence having regard to the aggravating and mitigating circumstances vis-à-vis an accused in each case. On the question of awarding the sentence for the offences for which life imprisonment as well as the death sentence is prescribed, Sub-section (3) of Section 354 Cr.P.C. enjoins that in the case of sentence of death, special reasons for such sentence shall be stated.

For ascertaining the existence or absence of special reasons in the context, it was observed that though, in a sense, to kill is to be cruel and, therefore, all murders are cruel, yet such cruelty may vary in its degree of culpability and it is only when culpability assumes the proportion of extreme depravity that special reasons can legitimately be said to exist. It was emphasized that life imprisonment was the rule and death sentence was an exception and that death sentence must be imposed only when life imprisonment appears to be an altogether inadequate punishment having regard to the relevant circumstance of the crime and provided that the option to sentence of imprisonment for life cannot be conscientiously exercised having regard to the nature and circumstances of the crime and all the relevant circumstances.

Venkateshwaran and Anr. Vs. Singaravel Yarn Traders (Decided On: 28.05.2009) MANU/SC/0904/2009

Refusal to entertain petition under Section 482 of the Code of Criminal Procedure - Disputed question of facts - Whether can be entertained by Petition under Section 482

Disputed question of fact could not have been gone into under Section 482 Cr.P.C. The High Court was absolutely right in not entertaining that question, as it would be during the trial for the accused persons to urge such relief.

• CONSTITUTIONAL LAWS

Delhi Gate Auto Service Station and Ors. Vs. B.P.C.L. Agra th. Sr. Div. Manager and Ors. (Decided on 25.05.2009) MANU/SC/0893/2009

Two parallel remedies pursued simultaneously in form of writ and arbitration - Writ Petition filed by Appellant was dismissed and award passed in Arbitration also under challenge by Appellant - Dismissal of Writ by High Court under challenge in present Appeal

Writ petition was held to be rightly dismissed as in fact petitions itself could not have been entertained on the ground that the Appellants could not have pursued two parallel remedies at one and the same time.

• SERVICE LAWS

Union of India (UOI) and Ors. Vs. Bishamber Das Dogra (Decided on 26.05.2009) MANU/SC/0887/2009

Repeated misconduct or absenteeism - Respondent employee subjected to punishment three times for remaining absent from duty - On the fourth occasion when he remained absent for 10 days without leave, the were initiated against him - Issues arose for consideration were (1) Whether the delinquent employee is not supposed to establish de-facto prejudice in case the enquiry report is not supplied to him before awarding punishment and (2) Whether the order of punishment would be vitiated if the Disciplinary Authority takes into consideration the past conduct of the delinquent employee for the purpose of punishment?

Principles of natural justice cannot be put into a straitjacket formulate and its observance would depend upon the fact situation of each case. Therefore, the application of the principles of natural justice has to be understood with reference to the relevant facts and circumstances of a particular case. It is settled legal position that an order is required to be examined on the touchstone of doctrine of prejudice. in case the enquiry report had not been made available to the delinquent employee it would not ipso facto vitiate the disciplinary proceedings as it would depend upon the facts and circumstances of the case and the delinquent employee has to establish that real prejudice has been caused to him by not furnishing the enquiry report to him. it is desirable that delinquent employee may be informed by the disciplinary authority that his past conduct would be taken into consideration while imposing the punishment. But in case of misconduct of grave nature or indiscipline, even in absence of statutory rules, the authority may take into consideration the indisputable past conduct/service record of the employee for adding the weight to the decision of imposing the punishment if the facts of the case so require.

Respondent employee in the instant case had not completed the service of six years and had been imposed punishment three times for remaining absent from duty. On the fourth occasion when he remained absent for 10 days without leave, the disciplinary proceedings were initiated against him. The show cause notice could not be served upon him for the reason that he again deserted the LINE and returned back after 50 days. Therefore the disciplinary proceedings could not be concluded expeditiously. There was nothing on record to show any explanation for such repeated misconduct or absenteeism. It was a case of gross violation of discipline. The facts of the case did not present special features warranting any interference by the Court in limited exercise of its powers of judicial review. Appeal accordingly was allowed and the order of punishment imposed by the statutory authority was restored.

HIGH COURTS

• CRIMINAL LAWS

DELHI HIGH COURT

Prem Kumar v State (Decided on 30.5. 2009) MANU/DE/0650/2009

Testimony of eyewitness - Appellant convicted for committing offence punishable under section 302 IPC

Trial Judge rightly relied upon the testimony of eye witnesses, which finds corroboration from the testimony of other witness about the dying declaration made by the deceased implicating accused as a person responsible for his injury and also the recovery of weapon of offence i.e. dagger from the possession of the accused and serological report which confirmed that the blood stains on the dagger and pant and shirt of the accused match with blood group of the deceased i.e. group 'O'. Appeal dismissed.

• LIMITATION ACT

DELHI HIGH COURT

Delhi Jal Board Vs. Digvijay Sanitations and Anr. (Decided on 26.05.2009) MANU/DE/0587/2009

Petition under section 34(5) of the Arbitration & Conciliation Act, 1996 - Delay in refilling thereof by about eleven months - Negligence on the part of Counsel - Applicability of Section 5 of the Limitation Act for Condonation of delay questioned

Petitioner, who had filed objections within the prescribed period under the law, cannot be made to suffer for the negligence on the part of its counsel. The delay in refilling is though is of about ten and half months but due to circumstances explained by counsel and in view of the fact that nothing has come on record to show that what has been stated by counsel for the petitioner was not correct, the application deserves to be allowed. Section 5 of the Limitation Act though not applicable as far as filing of petition under Section 34 is concerned, however once the petition was filed within time, if there is delay in refilling, the Court can consider condonation of delay under Section 5 of the Limitation Act and if it is found that the reasons are justified, such delay can be condoned

• CIVIL LAWS

Karnataka High Court

The Corporation Bank Vs. Kotresh S/o Shivappa and Ors. (Decided on 14.05.2009) MANU/KA/0080/2009

Grant of temporary injunction in exercise of jurisdiction conferred under Order 39 Rules 1 and 2 of CPC

Wherein it is proved by affidavit or otherwise that the property in dispute which is the subject matter of the suit is in danger of being wasted, damaged or alienated by any party to the suit, or wrongfully sold in execution of a decree or that the defendant threatens, or intends, to remove or dispose of his property with a view to defraud his creditors and that the defendant threatens to dispossess, the plaintiff or otherwise cause injury to the plaintiff in relation to any property in dispute in the suit or in cases relating to committing of a breach of contract or injury of any kind. In such cases, the Court before granting injunction, should direct the notice of application in respect of the relief to be given to the opposite party, except where it appears that, the granting of the temporary injunction would be defeated by delay. Proviso to Rule 3 of Order 39 CPC empowers the Court to grant an injunction without giving notice of the application to the opposite party by recording reasons for its opinion to the effect that the object of granting the injunction would be defeated by delay. If it proposes to grant an injunction after recording reasons, what should follow, has been provided in Clauses (a) and (b) of the proviso to Rule 3 of Order 39 CPC.

• EXCISE LAWS

RAJASTHAN HIGH COURT

Som Distilleries and Breweries Ltd. Vs. State of Rajasthan and Ors. (Decided on 20.05.2009) MANU/RH/0127/2009

Demand of duty - Order by District Excise Officer - Challenge to Board of Revenue - Legality of - Powers of Excise Commissioner - Whether Petitioner was justified in approaching the Board instead of the Excise Commissioner or not

Held, Excise Commissioner is the authorised officer to hear an appeal against the Order of District Excise Officer. Merely because the Excise Commissioner is authorised by the Act to hear an application against the order of District Excise Officer, in certain exceptional cases where the authorised officer himself is involved, the person would be justified in approaching an officer higher in rank, i.e., the Board of Revenue. A rigid insistence that the petitioner should approach the Excise Commissioner, would defeat the very purpose of justice. Hence, insistence that the Petitioner should have approached the Excise Commissioner and not the Board, is unsustainable. Power to levy and collect the Excise Duty must be exercised in a reasonable, just and fair manner as same is not an unbridled power. In the present, case, Officer-in-charge of the exporting distillery at M.P. had sent all the relevant documents proving that five consignments under the five permits but the same never left the State of M.P.. Report prepared by the Excise Inspector, and the report of District Excise Officer were also in favour of the Petitioner. Excise Commissioner should have re-considered the entire matter. Since the import duty has been charged without any import, clearly the charging and collection of duty is ultra vires the powers of Excise Commissioner. Impugned Order quashed and set aside. Respondent directed to refund the bank guarantee along with interest.