ARBITRATION
GENERAL REFERENCE TO A STANDARD FORM ENOUGH
FOR INCORPORATION OF ARBITRATION CLAUSE
M /S INOX WIND LTD.-THE APPELLANT IS A
MANUFACTURER of wind turbine generators
(WTGs). The Respondent is engaged in the business
of manufacture of wind power cables and other types
of cables. Two purchase orders dated 13.12.2012 and
02.02.2013 were issued by the Appellant to the
Respondent for supply of cables for their WTGs.
According to the Purchase Order, the supply was to
be according to the terms mentioned in the order and
the Standard Terms and Conditions that were attached
thereto. Apart from the other conditions, the Standard
Terms and Conditions contain a clause pertaining to
dispute resolution. The said clause provides for a
dispute to be resolved by a sole arbitrator in accordance
with the provisions of the Arbitration and Conciliation
Act, 1996. The material on record indicates that the
Respondent accepted all the terms and conditions
mentioned in the Purchase Order except the delivery
period as is evident from a letter dated 15.12.2012.
M/s Thermocables Ltd.-the Respondent, pursuant to
the Purchase Order, supplied wind power cables to the
Appellant. While laying the cables supplied by the
Respondent-company, the Appellant discovered that
the outer sheaths of the cables of 150 sq. mm. were
cracked. This forced them to stop the WTGs so as to
avert damage to expensive equipment. According to the
Appellant, the Respondent-company did not replace the
cables. The Appellant, therefore, was constrained to
issue a notice dated 30.10.2014 proposing the name of
a sole arbitrator in terms of the Standard Terms and
Conditions. In the absence of any response, the
Appellant moved the High Court of Judicature at
Allahabad by filing an application under Section 11 (6)
of the Act.
The High Court dismissed the said application by
holding that an arbitrator cannot be appointed as the
Appellant did not prove the existence of an arbitration
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agreement. The High Court relied upon the judgment
of Supreme Court in M.R. Engineers and Contractors
Private Limited v. Som Datt Builders Limited [2009 (7)
SCC 696] to hold that there is no special reference to
the arbitration clause in the standard terms and
conditions, so the arbitration clause cannot be said to
have been incorporated into the purchase order.
Against the judgement of the High Court appeal was
filed. The Supreme Court accepted the appeal, the
judgement of the High Court was set aside. Justice
Sushil Harkauli was appointed as the Arbitrator to
adjudicate the dispute between the parties.
The operative part of the judgment reads as under:-
We are of the opinion that though general reference
to an earlier contract is not sufficient for
incorporation of an arbitration clause in the later
contract, a general reference to a standard form
would be enough for incorporation of the arbitration
clause. In M.R. Engineers this Court restricted the
exceptions to standard form of contract of trade
associations and professional institutions. In view of
the development of law after the judgment in M.R.
Engineers' case, we are of the opinion that a general
reference to a consensual standard form is sufficient
for incorporation of an arbitration clause. In other
words, general reference to a standard form of
contract of one party will be enough for
incorporation of arbitration clause. A perusal of the
passage from Russell on Arbitration 24 th Edition
(2015) would demonstrate the change in position of
law pertaining to incorporation when read in
conjunction with the earlier edition relied upon by
this Cour t in M.R. Engineers' case. W e are in
agreement with the judgment in M.R. Engineer's case
with a modification that a general reference to a
standard form of contract of one party along with
those of trade associations and professional bodies
May 2018 I 211
ARBITRATION
will be sufficient to incorporate the arbitration clause.
TTTTTTT
In the present case, the purchase order was issued by
the Appellant in which it was categorically
mentioned that the supply would be as per the terms
mentioned therein and in the attached standard terms
and conditions. The Respondent by his letter dated
15.12.2012 confirmed its acceptance of the terms and
conditions mentioned in the purchase order except
delivery period. The dispute arose after the delivery
of the goods. No doubt, there is nothing forthcoming
from the pleadings or the submissions made by the
parties that the standard form attached to the
purchase order is of a trade association or a
professional body. However, the Respondent was
aware of the standard terms and conditions which
were attached to the purchase order. The purchase
order is a single contract and general reference to
the standard form even if it is not by a trade
association or a professional body is sufficient for
incorporation of the arbitration clause.
TTTTTTT
Authorities relied upon : 2010 EWHC 29 (Comm),
2006 EWHC 2530 (Comm)], 1991 (31) Con L.R. 60.
Reference : Supreme Court. M/s Inox Wind Ltd. v.
M/s Thermocables Ltd., civil appeal no. 19 of 2018
[arising out of SLP (Civil) No. 31049 of 2016].
—————

GLOBAL GLIMPSE
US SC REQUIRES MICROSOFT TO DISCLOSE EMAILS STORED OVERSEAS
The US Supreme Court held that Microsoft is required to disclose a customer's electronic information stored
overseas when it was suspected in furthering illegal drug trafficking. The per curium opinion vacated and remanded
the judgment of the US court of appeals, which held the disclosure to be unauthorized due to the information's
storage in Ireland. The court justified its opinion by citing the newly passed CLOUD Act signed by President
Donald Trump in March. The original issue before the court was "whether, when the Government has obtained
a warrant under 18 USC § 2703, a US provider of e-mail services must disclose to the Government electronic
communications within its control even if the provider stores the communications abroad". However, the recently
passed CLOUD Act amended §2703 and essentially answered the question before the court by stating in relevant
part that "A [service provider] shall comply with the obligations of this chapter to preserve, backup, or disclose
the contents of a wire or electronic communication and any record or other information pertaining to a customer
or subscriber within such provider's possession, custody, or control, regardless of whether such communication,
record, or other information is located within or outside of the United States". The case originated in 2013 when
federal law enforcement agents applied to the US district court for a § 2703 warrant requiring Microsoft to disclose
all emails and other relevant information associated with the account of one of its customers thought to be used
to further illegal drug trafficking. Upon determining that the government indeed had probable cause to believe
this to be the case, the magistrate issued the requested warrant. The warrant required Microsoft to disclose the
contents of the specified email account and all other records associated with the account "to the extent that the
information is within Microsoft's possession, custody, or control". However, Microsoft opposed the warrant when
they determined that the account's e-mail contents were stored in a sole location in Dublin, Ireland.After a hearing
in the district court required Microsoft to comply with the warrant despite the information's location overseas,
the court of appeals reversed. Then, following the passing of the CLOUD Act, the government obtained a new
warrant under the new Act's authority which unambiguously authorized the information disclosure.

212 I May 2018 www.lawteller.com


FIR DOES DISCLOSE PRIMA FACIE COMMISSION
OF ANY COGNIZABLE OFFENCE, THUS UPHELD
D ISPUTE BETWEEN THE PARTIES TO THIS
BUNCH OF CASES relates to a piece of land
bearing Survey No. 96/3/2, Block No. 121, admeasuring
5281 sq. mts., Plot No. 71, admeasuring 3475 sq. mts.
of Town Planning Scheme No. 36, situated at village
Althan, Taluka & city-Surat.
The disputed land was jointly owned by the members
of one Rathore family , who according to them,
belonged to Halpai caste.
Six members of the Rathore Family (hereinafter referred
to as the Complainants) filed one joint complaint to
the Commissioner of Police, Surat on 25.04.2011
(Annexure-P-2) complaining therein that one person
by name - Dineshbhai Chandubhai Patel in conspiracy
with several other named persons jointly defrauded and
deceived the complainants by taking advantage of
their illiteracy, poverty and unawareness got executed
bogus Power of Attorney with bogus signatures in
relation to the disputed land. It was alleged that these
persons again in furtherance with the conspiracy got
the disputed land transferred in favour of several
persons and illegally got the construction maps
sanctioned to enable them to do construction over the
disputed land.
In short and in substance, the grievance of the
complainants was that the above named persons
conspired together and snatched away from the
complainants their aforementioned valuable land by
committing fraud, cheating, deception, breach of trust
etc. on them.
The complainants enclosed all disputed documents
along with their complaint to show prima facie case
alleged to have been committed by the above-named
persons and prayed to the Commissioner of Police to
investigate the entire case in relation to their land and
bring the investigation to its logical end by first
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CRIMINAL LAWS
registering the FIR and then after holding a proper
investigation, file the charge sheet in the competent
Court against all those found involved in the case and
prosecute them for the offences which they have
allegedly committed and punish them under the Indian
Penal Code and other related Acts.
This was followed by another complaint (Annexure P-
6) filed with the Collector (SIT), Surat on 23.01.2012
against six named persons seeking therein the
prosecution of those persons for having committed
the alleged offences punishable under Sections 34,
114, 120-B , 420 ,465 ,468, 471 and 476 of the Indian
Penal Code, 1860 (hereinafter referred to as "IPC") read
with Sections 3, 7 and 11 of the Scheduled Castes and
Scheduled Tribes (Prevention of Atrocities) Act, 1989.
The complaint also set out the allegations with details
alike the previous one with some new facts.
Yet another third complaint was filed with the
Collector, District Disputes Redressal Forum, Surat
(Annexure-P-13) on 07.10.2013 by one of the
complainants against 8 named persons making more
or less same allegations made in the first two
complaints with more detailed facts seeking to
prosecute them for the commission of offences named
in the earlier complaints.
It is these three complaints which led to registration
of the FIR (CR No.I.C.R. No. 90 of 2016) on 06.06.2016
with Khatodara Police Station, Surat giving rise to
filing of several criminal applications, bail petitions etc.
one after the other at the instances of the named
accused persons and others alleged to be involved in
the cases.
These cases were filed in the lower Court, the High
Court and also in Supreme Court one after the other
during the last 4 years. The Courts passed several
orders with observations made therein.
May 2018 I 213
CRIMINAL LAWS
The present bunch of appeals arises out of the criminal
applications filed by the named accused persons in
the aforementioned three complaints under Section 482
of the Code of Criminal Procedure, 1973 (hereinafter
referred to as "the Code") in the Gujarat High Court
seeking therein a prayer to quash the aforementioned
FIR.
By impugned judgment dated 10.07.2017, the Single
Judge of the High Court partly allowed the criminal
applications and passed the following operative
portion of the judgment contained in Para 88 which
reads as under:
"(1) The First Information Report, so far as
the offence punishable under Sections 406,
420, 120B of the Indian Penal Code and the
Atrocities Act is concerned, is quashed. The
investigation as regards the allegations of
creating the two bogus power of attorneys
and erasing of 73AA is concerned, shall be
completed by the Commissioner of Police,
Surat in accordance with law.
(2) The Commissioner is also directed to
undertake the investigation as regards the
persons, who had approached the land
owners and had obtained the thumb
impressions on the complaints addressed to
the Commissioner of Police, Surat. To put it
in other words, I direct the Commissioner to
undertake proper investigation as regards the
allegations of blackmailing and extortion
leveled against the particular persons."
Against the judgement dated 10.7.2017 both parties felt
aggrieved thus filed special leave petitions. The
Supreme Court accepted the appeals filed by the
complainants. The impugned judgement was set aside.
As a sequel to the order, the appeals filed by the
accused persons were dismissed.
The operative part of the judgment reads as under:-
The High Court, in our view, virtually decided all the
214 I May 2018
issues arising out of the case like an investigating
authority or/and appellate authority decides, by little
realizing that it was exercising its inherent
jurisdiction under Section 482 of the Code at this
stage.
TTTTTTT
The High Court, in our view, failed to see the extent
of its jurisdiction, which it possess to exercise while
examining the legality of any FIR complaining
commission of several cognizable offences by accused
persons. In order to examine as to whether the factual
contents of the FIR disclose any prima facie
cognizable offences or not, the High Court cannot act
like an investigating agency and nor can exercise the
powers like an appellate Court. The question, in our
opinion, was required to be examined keeping in view
the contents of the FIR and prima facie material, if
any, requiring no proof.
TTTTTTT
At this stage, the High Court could not appreciate the
evidence nor could draw its own inferences from the
contents of the FIR and the material relied on. It was
more so when the material relied on was disputed by
the Complainants and visa-se-versa. In such a
situation, it becomes the job of the investigating
authority at such stage to probe and then of the Court
to examine the questions once the charge sheet is filed
along with such material as to how far and to what
extent reliance can be placed on such material.
TTTTTTT
Once the Court finds that the FIR does disclose prima
facie commission of any cognizable offence, it should
stay its hand and allow the investigating machinery
to step in to initiate the probe to unearth the crime
in accordance with the procedure prescribed in the
Code.
TTTTTTT
The very fact that the High Court in this case went
into the minutest details in relation to every aspect
of the case and devoted 89 pages judgment to quash
the FIR in part lead us to draw a conclusion that the
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High Court had exceeded its powers while exercising
its inherent jurisdiction under Section 482 of the
Code. We cannot concur with such approach of the
High Court.
TTTTTTT
On perusal of the three complaints and the FIR, we
are of the considered view that the complaint and FIR,
do disclose a prima facie commission of various
cognizable offences alleged by the complainants
against the accused persons and, therefore, the High
CRIMINAL LAWS
Court instead of dismissing the application filed by
the accused persons in part should have dismissed the
application as a whole to uphold the entire FIR in
question.
TTTTTTT
Authorities relied upon : AIR 1982 SC 949.
Reference : Supreme Court. Dineshbhai Chandubhai
Patel v. State of Gujarat & Ors., criminal appeal no. 12
of 2018 [arising out of SLP (Crl.) No. 5155 of 2017].
—————

GLOBAL GLIMPSE
PAKISTAN SC BANS NAWAZ SHARIF FROM POLITICS FOR LIFE
The Supreme Court on Pakistan ruled that a person would be disqualified for life if the court found that they
were not "honest" or "truthful" at any point in their career, effectively preventing former prime minister Nawaz
Sharif from running for parliament for life. The Constitution of Pakistan says "a person shall not be qualified
to be elected or chosen as a member of Majlis-e-Shoora (Parliament) unless... he is sagacious, righteous, non-
profligate, honest and ameen, there being no declaration to the contrary by a court of law". The Constitution
of Pakistan itself does not specify how long the period of time a person could be disqualified for it the court
finds them unfit for the position. The Supreme Court of Pakistan decided that an incapacity to meet the above
qualifications imposes a permanent bar to being a part of parliament that will stay in effect "so long as the
declaratory judgment supporting the conclusion of one of the delinquent kinds of conduct under Article 62(1)(f)
of the Constitution remains in effect". This was a unanimous decision made by the court, which decided that
people who were untrustworthy or dishonest should not have the ability to hold a political office. In 2017
Sharif was indicted on corruption charges by his opposing party and was forced to step down by the Supreme
Court of Pakistan. This ruling will disqualify him from ever holding office again due to the interpretation of the
constitutional provision.

PORTUGAL ADOPTS LAW ALLOWING CITIZENS TO LEGALLY

CHANGE GENDER
Portugal's parliament approved legislation that will allow citizens to legally determine their own gender. The
proposed law, introduced by the parliamentary Committee on Constitutional Affairs, Rights, Freedoms and
Guarantees, was adopted unanimously by the chamber. Under the new law, individuals over age 16 will be able
to change their name and gender on official documents without submitting a medical report. Those under 18
will need approval of a parent or guardian. The previously law only allowed individuals over 18 to change their
name and gender and required a medical report. Language in the new law also reinforces the notion that all
persons, regardless of their gender or gender expression, are subject to the equal protection of the law. Language
of the new law states that all persons are free to express their gender and sexuality as they see fit.

www.lawteller.com May 2018 I 215

SERVICE
ACQUITTAL DOES NOT AUTOMATICALLY ENTITLE
FOR APPOINTMENT TO THE POST
O N 14.03.2010, AN ADVERTISEMENT WAS
ISSUED BY UT Chandigarh Police through its
Deputy Inspector General of Police inviting
applications from the candidates to fill up 1200
temporary posts of Constable (Executive) in
Chandigarh Police with essential qualification as
prescribed in the advertisement with instructions for
filling online application form. The recruitment was to
be done as per guidelines thereon as well as standing
order governing the recruitment of constables.
Guideline No.2(A)(a) deals with the circumstances
when the candidate does not disclose the factum of
his involvement in the attestation form and the same
is found subsequently from the verification report. The
candidature of such candidates will be cancelled as
per aforesaid guideline without making any reference
to any Committee for further probe into the conduct
of the candidate. In Guideline No.2(A)(b), it is
prescribed that if a candidate has disclosed his
involvement in some criminal case in the attestation
form, then such case will be referred to Screening
Committee to assess his suitability for appointment in
Chandigarh Police irrespective of the fact that the case
is under investigation, trial or resulted in conviction
or acquittal.
Respondents were declared successful in the
recruitment for the post of Constable (Executive) in
Chandigarh Police after clearing the Physical
Efficiency Test, Physical Measurement Test, written
test and interview. However, the respondents were
denied the employment on the ground that the
respondents had been prosecuted in a criminal trial for
the offences under Section 323 IPC and Section 506
read with Section 34 IPC and were acquitted by the
trial court vide judgment dated 29.01.2010 giving them
benefit of doubt. The case was referred to the
Committee headed by Senior Superintendent of Police
216 I May 2018
and it was found that the respondents were not
suitable for appointment as Constables in the
Chandigarh Police.
Aggrieved, respondents filed OA before CAT. CAT
vide order dated 24.07.2012 allowed the OA and set
aside the orders of the Screening Committee and
directed the competent authority to consider the names
of the respondents for appointment to the post of
Constable. The State filed writ petition before the High
Court which came to be dismissed for all the
respondents except Ombir holding that there was no
concealment of criminal antecedents.
The Union Territory being aggrieved has filed special
leave petition. The Supreme Court set aside the
judgement given by the High Court, the appeals were
thus accepted. The cancellation of candidature of the
respondents was upheld.
The operative part of the judgment reads as under:-
In Guideline 2(A)(b), it is prescribed that if a candidate
has disclosed his involvement in some criminal case in
the attestation form then such case will be referred to
Screening Committee to assess his suitability for
appointment in Chandigarh Police irrespective of the
fact that the case is under investigation, trial or decided
in conviction or acquittal.
TTTTTTT
The acquittal in a criminal case is not conclusive of
the suitability of the candidates in the concerned post.
If a person is acquitted or discharged, it cannot always
be inferred that he was falsely involved or he had no
criminal antecedents. Unless it is an honourable
acquittal, the candidate cannot claim the benefit of the
case. What is honourable acquittal, was considered by
this Court in Deputy Inspector General of Police and
Another v. S. Samuthiram [2013 (1) SCC 598].
TTTTTTT
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It is thus well settled that acquittal in a criminal case
does not automatically entitle him for appointment to
the post. Still it is open to the employer to consider
the antecedents and examine whether he is suitable
for appointment to the post. From the observations of
this Court in Mehar Singh and Parvez Khan cases, it
is clear that a candidate to be recruited to the police
service must be of impeccable character and integrity.
A person having criminal antecedents will not fit in
this category. Even if he is acquitted or discharged,
it cannot be presumed that he was honourably
acquitted/completely exonerated.
TTTTTTT
In a catena of judgments, the importance of integrity
and high standard of conduct in police force has been
emphasized. As held in Mehar Singh case, the decision
of the Screening Committee must be taken as final
unless it is mala fide. In the case in hand, there is
nothing to suggest that the decision of the Screening
Committee is mala fide. The decision of the Screening
Committee that the respondents are not suitable for
being appointed to the post of Constable does not call
for interference. The Tribunal and the High Court, in
our view, erred in setting aside the decision of the
Screening Committee and the impugned judgment is
liable to be set aside.
TTTTTTT
SERVICE
We find that the Screening Committee examined each
and every case of the respondents and reasonings for
their acquittal and taken the decision. While deciding
whether a person involved in a criminal case has been
acquitted or discharged should be appointed to a
post in a police force, nature of offence in which he is
involved, whether it was an honourable acquittal or
only an extension of benefit of doubt because of
witnesses turned hostile and flaws in the prosecution
are all the aspects to be considered by the Screening
Committee for taking the decision whether the
candidate is suitable for the post. As pointed out
earlier, the Screening Committee examined each and
every case and reasonings for their acquittal and took
decision that the respondents are not suitable for the
post of Constable in Chandigarh Police. The
procedure followed is as per guideline 2(A)(b) and
object of such screening is to ensure that only persons
with impeccable character enters police force. While
so, the court cannot substitute its views for the
decision of the Screening Committee.
TTTTTTT
Reference : Supreme Cour t. Union Territory,
Chandigarh Administration and Ors. v. Pradeep Kumar
and Another, civil appeal no. 67 of 2018 [arising out
of SLP (C) No. 20750 of 2016].
—————

GLOBAL GLIMPSE
EUROPEAN COURT OF JUSTICE RULES THAT UNACCOMPANIED MINORS
RETAIN RIGHTS TO FAMILY REUNIFICATION
The European Court of Justice (ECJ) ruled that an unaccompanied minor who turns eighteen during the asylum
procedure remains entitled to family unification, provided the application for family reunification is filed within
three months of the recognition of the minor's refugee status. Those who reach the age of majority during this
process will still be regarded as minors despite their age. The ECJ found that family reunification is necessary
in order to protect the family. The court determined that the term "unaccompanied minor" extends to someone
who has attained the age of majority during the asylum procedure and who later applies for family reunification.
The court said that refugees who arrive as unaccompanied minors have a right to family reunification, and
therefore ruled that they keep this right even if they attain the age of majority during the process of obtaining
asylum.

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CRIMINAL LAWS
CIRCUMSTANTIAL EVIDENCE, WHEN CAN BE
BASIS OF CONVICTION?
T HE HUSBAND OF DECEASED MEENA DEVI
PASSED AWAY about eleven years ago prior to
the incident. Meena Devi was residing with her son
Jeewan Lal (PW-1), daughter Rekha Devi (PW-2) and
accused Raj Kumar (brother-in-law) in the joint family
house. On 23.08.2007 at 08.30 p.m., while Meena Devi
was taking meal along with her family, respondent-
accused came there in drunken condition and started
abusing Meena Devi and her children PW-1 and PW-
2 without any reason and threatened to kill them. Barf
Devi-grandmother of PW-1 who was present in the
house took Jeewan Lal (PW-1) to adjoining sleeping
room and bolted the room from outside. She asked
Rekha Devi (PW-2) daughter of deceased to go to
the house of her maternal uncle Anant Ram (PW-3).
While being inside the room, PW-1 heard the cries
of his mother Meena Devi and from the window saw
the respondent-accused taking her mother towards
the house of another accused Om Prakash. After few
hours, accused opened the door and told him that
his mother had run away from the house and that he
should tell the same to his maternal uncle Anant Ram
(PW-3). Under such threat from respondent-accused
and another accused Ramesh Kumar, PW-1 told his
maternal uncle (PW-3) that his mother had run away
from the house. On 24.08.2007 at about 02.00 a.m.,
Anant Ram (PW-3) came to the house of accused.
Thereafter, PW-1 and PW-3 went to Dharampur Police
Station and informed the police about missing of
Meena Devi. On 25.08.2007, they again went to the
police station Dharampur and at about 11.00-11.30
a.m; at the time Anant Ram (PW-3) received a phone
call from Nek Ram informing that the dead body of
deceased Meena Devi was found hanging from a tree
at Ghat Bahu forest. Thereafter, PW-1 and PW-3 along
with police party went to the spot and found that the
dead body of Meena Devi was hanging from the
218 I May 2018
branch of a pine tree with a plastic rope, tied around
her neck. Statement of PW-1 was recorded, based on
which, case in FIR No.250 of 2007 was registered
under Section 302 IPC and Section 201 read with
Section 34 IPC.
Initial investigation was conducted by Sub-Inspector
of Police Sat Prakash (PW -20) and further
investigation was conducted by Inspector of Police
LR Thakur (PW-22). PW-22 prepared spot map,
inquest and conducted further investigation. Dr .
Vivek Banyal (PW-24) conducted autopsy and opined
that "....death was because of haemorrhagic shock
due to rupture of spleen and anti-mortem injuries
suggesting gagging. Hanging was post-mortem".
Accused Raj Kumar was taken to custody on
25.08.2007 and he was interrogated. Confession
statement of accused was recorded on 27.08.2007
which led to the recovery of a lady shirt from the
room of the house of accused Ramesh Kumar which
was under construction. Upon completion of
investigation, charge-sheet was fled against accused
Raj Kumar, Ramesh Kumar, Om Prakash and Barf Devi
under Section 302 IPC and Section 201 read with
Section 34 IPC.
To bring home the guilt of the accused, in the
Sessions Court, prosecution has examined as many
as twenty four witnesses and marked number of
exhibits and material objects. In the questioning
under Section 313 Cr.P.C., the accused denied all the
incriminating circumstances and evidence and
pleaded that he is innocent. The accused has not
offered any explanation on the death of deceased
Meena Devi.
Based upon the evidence of Anant Ram (PW-3) and
Bhindra Devi (PW-15), the trial court held that Meena
Devi suffered harassment at the hands of her brother-
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in-law (respondent-accused). The trial court held that
Jeewan Lal (PW-1) son of the deceased had spoken
about the overt act of the accused in beating the
deceased and that the accused taking away Meena
Devi from the house. The trial court held that no
reasonable explanation was forth coming from the
accused for the death of the deceased Meena Devi
who was living jointly with the respondent-accused.
On those findings, the trial court convicted the
respondent-accused under Section 302 IPC and
Section 201 IPC read with Section 34 IPC and
sentenced him to undergo imprisonment for life. Other
accused Ramesh Kumar and Om Prakash were
acquitted. Accused Barf Devi remained absconding.
Against the judgement of the High Court preferred an
appeal. The Supreme Court accepted the appeal, the
conviction of the respondent under Section 302 IPC
and the sentence of life imprisonment on him the trial
court was affirmed. The respondent was directed to
be taken into custody to serve the remaining sentence.
The operative part of the judgment reads as under:-
If Meena Devi was so missing, the natural conduct of
the accused was to inform the police and also Anant
Ram (PW-3). But that was not done. In view of Section
106 of the Evidence Act, burden is cast upon the
accused, being the inmate of the house to give a
cogent explanation as to how Meena Devi died. No
reasonable explanation is forthcoming from the
accused as to why he had neither lodged the
complaint nor informed the police about the missing
of Meena Devi. The respondent-accused being inmate
of the house cannot get away by simply keeping quiet
and offering no explanation. This is a strong
militating circumstance against the respondent
indicating that he might be responsible for the
commission of the offence.
TTTTTTT
The circumstances in which PW-1 was placed at that
time, is to be kept in view . PW-1 was only aged
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CRIMINAL LAWS
nineteen years. On the night of 23.08.2007, he had
heard the cries of his mother at the time when she was
beaten. PW-1 and PW-3 had been searching for Meena
Devi for more than twenty four hours that is from
24.08.2007 to 25.08.2007, only to fnd her dead. PW-
1 was already threatened by accused Om Parkash to
inform Anant Ram (PW-3) that Meena Devi had run
away. On 25.08.2007, when PW-1's statement was
recorded, he must have been in trauma and fear
psychosis. In such circumstances, omission to mention
the names of Om Parkash and Ramesh Kumar in his
statement (Ex.P/A) does not render PW-1's evidence
untrustworthy. Upon pr oper appreciation of the
evidence, the trial court observed that evidence of
PW-1 inspires confidence of the court. While so, in our
view, the High Court ought not to have doubted the
version of PW-1 and his credibility.
TTTTTTT
While appreciating the evidence of a witness, the
approach must be whether the evidence of the witness
read as a whole appears to be truthful in the given
circumstances of the case. Once that impression is
formed, it is necessary for the court to scrutinize the
evidence more particularly keeping in view the
drawbacks and infirmities pointed out in the evidence
and evaluate them to fnd out whether it is against the
general tenor of the prosecution case. Jeewan Lal
(PW-1) is the son of the deceased Meena Devi residing
with her and the accused in the same house, and a
natural witness to speak about the occurrence.
Evidence of PW-1 is cogent and natural and is
consistent with the prosecution case. The High Court
was not right in doubting the evidence of PW-1 on
the ground of alleged improvements made by Jeewan
Lal (PW-1) and rejecting his evidence on the premise
that there were certain improvements.
TTTTTTT
Reference : Supreme Court. State of Himachal
Pradesh v. Raj Kumar, criminal appeal no. 31 of 2018
[arising out of SLP (Crl.) No. 1204 of 2015].
—————
May 2018 I 219
CONSTITUTION
WHETHER EXPRESSION "TAX" IN ARTICLE 265
COVERS THE EXPRESSION "FEE"
T ATA IRON AND STEEL CO. LTD. (TISCO- THE
FIRST appellant) is a company registered under
the Companies Act having an industrial unit at
Jamshedpur in the district of Singhbhum, East Bihar
(Now the State of Jharkhand). The industrial unit is
primarily engaged in the business of manufacture and
sale of iron and steel products. For the purpose of
establishing the industry TISCO required
considerable extent of land. A huge extent of land
admeasuring 15,725 acres was acquired by the
Government and conveyed to TISCO by the then
Secretary of State of India in Council by two
conveyances dated 19.1.1912 and 23.9.1929.
The industrial unit and township connected with
TISCO came into existence over a period of time on
the said parcel of land.1 It is an admitted fact that a
river 'Subarnrekha' flows past the said parcel of land.
It is also an admitted fact that from time to time,
TISCO has been drawing water from Subarnrekha
River for various purposes connected with the
industry and its employees. It is also an admitted fact
that the necessary infrastructure for the use and
distribution of water for the above mentioned
purposes was established by TISCO. By virtue of an
enactment known as Bihar Land Holdings Act, as
amended by another Act of 1972, the above
mentioned lands came to be vested in the State of
Bihar. However, the land was once again conveyed
to TISCO by two documents dated 4.8.1984 and
1.8.1985, the details of which may not be necessary
for the purposes of this judgment.
The State of Bihar undertook the construction of a
multipurpose project on Subarnrekha River of which
a dam known as Chandil Dam was a part. It enables
impounding the water of Subarnrekha River. Chandil
Dam is located upstream of Subarnrekha River above
220 I May 2018
the township of TISCO.
Respondents issued a demand notice dated 30.9.1993
calling upon TISCO to pay an amount of Rs.31.351
millions towards bill of water drawn from the river .2
On receipt of the said notice, the appellants filed a
writ petition with prayers:
"(a) to issue a Writ or Order or direction
under Article 226 of the Constitution against
the Respondent authorities to desist from
interference with the (sic) petitioners right
in any manner whatsoever and more
particularly by obstructing the free flow of
water in the River Subarnarekha;
b) to issue a writ, order or direction that the
respondents be restrained from interfering
with or obstructing in any manner the free
flow of water from the River Subarnarekha
for the needs of the petitioners and
Jamshedpur Township and its inhabitants;
c) to declare that the impugned demand
notice dated 30.9.1993 and "Bill" is illegal
and void and/or issue a writ or order or
direction quashing the "Bill of water drawn
by Tisco" of Respondent no. 3 vide letter
no. Su/Prasha/M/1595 dated 30.9.1993
issued with the approval of respondent nos.
1 & 2 as illegal, ultra-vires of the Indian
Constitution and is contrary to law;
d) to declare that the petitioners have
absolute and indisputable rights to water
from the River Subarnarekha that flows on
their own land and to utilize such water for
their own use without payment to any State
or authority whatsoever;
e) to declare that the petitioners have an
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easementary right by prescription to the
waters of the river Subarnarekha;
f) to declare that the petitioners have right
to the water of the river Subarnarekha as
riparian owner;
g) to declare that the impugned actions and
threats are contrary to the petitioners'
fundamental rights granted under Articles
14, 19(1)(g) and 21;"
During the pendency of the said writ petition, various
notices at different points of time demanding the
payments of the amounts specified therein were
received by TISCO. Such demands pertained to
various periods during which water was drawn by
TISCO commencing from November, 1992 to June,
1998. A summary of the same is Annexed to the
Additional Affidavit dated 19.2.2005 filed in the
instant appeal. In substance, TISCO was called upon
to make a further payment of 55.43 crores. It may be
mentioned here that such additional demands were
made during the pendency of the writ petition
No.3819/1993 before the High Court.
It appears from the writ petition and the prayers (a),
(b), (c) and (d) thereof, TISCO's case is that it has a
'riparian right' over the waters of the Subarnarekha
river apart from an "easementary right". Though the
High Court took note of the arguments based on the
above claims, it declined to examine those claims
holding;
"3. … We find that the claim of right by
Tisco in this writ petition is essentially
based on what it calls a riparian right and
its prescriptive right. The existence of such
a right, either natural or prescriptive, can be
decided only in a properly instituted suit in
a competent civil court based on proper
pleadings and evidence to be adduced by
the parties and those are not questions that
we should venture to decided in this
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CONSTITUTION
proceeding under Article 226 of the
Constitution of India."
Before the High Court, it was the specific case of
TISCO that the impugned demand (be it either a tax
or a fee) is without any authority of law and therefore
unconstitutional. It appears from the copy of the writ
petition that it was the specific case of the petitioner
that the impugned demand is without the authority
of law and violative of Article 2653 of the
Constitution of India apart from Articles 14 and
19(1)(g).
It appears to be the case of the respondent-State that
(i) under Entry 174 of List II of the Seventh Schedule
of the Constitution, the State has power to legislate
on water and under Entry 665 of the List II the State
could collect a fee in connection with any one of the
matters in the list and was therefore competent to
make the impugned demands; (ii) necessary statutory
support for the impugned demands could be found
in the provisions of Bihar Irrigation Act, 1876; and
(iii) the State had spent considerable amount for the
construction of "Subarnarekha River Multi Purpose
Project" of which TISCO is one of the "direct
beneficiaries" and therefore, the State is entitled to
collect the money for the water consumed by TISCO.
The respondents also submitted that there was some
dialogue between the State and TISCO for the
purpose of creating a contractual obligation on
TISCO to make payments for water drawn by it.
Therefore, TISCO was obliged by a contract to pay
monies due under the impugned demands.
The High Court did not examine the questions -
Whether the impugned demand is a Tax or a Fee or a
liability arising under a contract?, and, Whether the
prohibition contained in Article 265 is confined only
to levy and collection of tax or it would also extend
to levy or collection of a fee?
No clear finding is recorded by the High Court that
there exists any law authorizing the levy and
May 2018 I 221
CONSTITUTION
collection of the impugned demand. Though the High
Court made references to the Bihar Irrigation Act,
1876, it did not record any conclusion whether the
said Act provides the necessary statutory authority
for the levy and collection of the impugned demands.
However, by the judgment under appeal, High Court
opined that:
"Under Entry 17 of List II of the Seventh
Schedule to the Constitution of India, the
State has power to legislate on water ,
subject to Entry 56 of List I.
**** **** ****
..the State of Bihar must be found to be
competent to enact laws in terms of Entry
17 of List II of the Seventh Schedule.
**** **** ****
Under Entry 66 of List II to the Seventh
schedule, the State has power to collect a
fee in respect of any of the matters in the
list but excluding the fees taken in any
Court. Once we consider that the State has
the right to legislate on water , that is to say,
water supplies, irrigation and canals,
drainage and embankments, water storage
and water power, there must necessarily be
a right to impose a fee on the water supplied
by the State to Tisco after the same is
impounded at Chandil Dam built across the
Subarnrekha River at State's expense or the
water flowing down stream of Subarnrekha
River from any water source. The
expenditure incurred by the State for
construction of the claim would be the quid
pro quo for the fee to be imposed by the
State. We are therefore of the view that the
State is in a position to demand payment for
the water used by Tisco from the
Subarnrekha River during the relevant
period."
222 I May 2018
In substance, the High Court held that in view of the
Entry 66 of the List II of the Seventh Schedule the
State is legally justified in making the impugned
demands! High Court appears to be of the view that
the mere existence of an entry (Entry 66 of List-II) in
the Seventh Schedule is sufficient to justify the
impugned demand.
However, High Court granted a limited relief to TISCO
directing the respondent-State to collect the fee for
water consumed for domestic purposes at a rate
lower than the rate applicable for the water consumed
for the industrial purposes.
"Para 9. ...Therefore, as far as the bill issued
to Tisco prior to the coming into force of the
Bihar Irrigation Act is concerned, the matter
requires to be reconsidered by the State
Government. The Government has to verify
the figures and determine the quantum of
water used by Tisco for its industrial
purposes as distinct from other purposes
and impose a liability on Tisco for water
used for industrial purposes all the present
rate, and impose a rate for water used for
other purposes at a lesser rate consistent
with the rate charged for other domestic
consumers. We do not find anything
irrational or arbitrary in the rate of Rs. 3/-
per thousand gallons adopted by the State.
But that rate can be justified only for the
water used by Tisco for industrial purposes.
Water used for purposes other than
industrial purposes has to be charged at a
lesser rate as indicated above."
Against the judgement of the High Court special
leave petition was filed. The Supreme Court set aside
the judgement. However, having regard the S tate
asserts that the two enactments referred to earlier
provide the necessary authority of law for sustaining
the impugned demand, the matter was remitted to the
High Court.
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The operative part of the judgment reads as under:-
A nine-judge Constitution Bench of this Court in
Jindal Stainless Ltd. & Another v. State of Haryana
& Others [2016 (11) Scale 1], quoted the above-
mentioned statement of law with approval. Therefore,
it is now well settled that the expression "fee" is also
comprehended in the expression "tax" for the purpose
of Article 265 and even for the collection of a "fee",
authority of law (i.e. legislative support) is
mandatorily required under the Constitution.
TTTTTTT
In view of the above-mentioned authoritative
pronouncement, we need not examine the various
ancillary submissions made on behalf of the
respondent State relying upon various judgments of
this Court rendered prior to judgment in Jindal
Stainless case (supra) that the expression "tax"
occurring in Article 265 does not take within its
sweep the expression "fee".
TTTTTTT
No doubt that it has been repeatedly held by this
court that this court would not be averse to examine
a pure question of law, (but not argued in the High
Court) raised for the first time before this Court. This
court only asserted its jurisdiction to resort to such
an examination but did not declare that this Court is
bound to examine in every case where a question of
law is raised.
TTTTTTT
Questions of law arising out of the application and
interpretation of a local law, in our opinion, ought
not to be normally entertained by this court unless
such questions are intertwined with substantial
questions of interpretation of the Constitution. At any
rate, such questions, in our opinion, ought not to be
examined by this court as a court of first instance
when such questions were not either raised or argued
properly before the High Court. Even in those cases
where the parties raised such questions but the High
Court failed to examine such questions, this Court
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CONSTITUTION
cannot become a substitute for the High Court.
TTTTTTT
In the circumstances, we are of the opinion that the
judgment under appeal cannot be sustained and needs
to be set aside. It is, accordingly, set aside. However,
having regard to the fact that the State asserts that
the two enactments referred to earlier provide the
necessary authority of law for sustaining the
impugned demand, the matter is remitted to the High
Court for an examination of the above-mentioned
questions after giving an appropriate opportunity to
the parties to file proper further pleadings in the
matter and argue the same.
TTTTTTT
From the tenor of the counter affidavit filed before the
High Court, it appears that the entire thrust of the
case of the respondent-State appears to be that the
State while making the impugned demands is only
trying to recover some portions of the expenditure
incurred in constructing the Chandil Dam of which
TISCO is one of the direct beneficiaries. A reading of
the counter affidavit filed on behalf of the State by
Dwarka Nath Srivastava, Superintending Engineer
gives a vague impression that the State was
suggesting that the impugned demands arise out of
an agreement between the State and TISCO.
TTTTTTT
First of all, as a matter of fact, there appears to be
some dispute regarding the existence of a concluded
agreement by TISCO which obligates TISCO to make
the payment of the impugned demand. It can be seen
from the above-mentioned counter affidavit that the
respondent State itself admits absence of a concluded
agreement.
TTTTTTT
Authorities relied upon : 2016 (11) Scale 1.
Reference : Supreme Court. Tata Iron and Steel Co.
Ltd. & Another v. State of Bihar & Others, civil appeal
no. 5360 of 2005.
—————
May 2018 I 223
ADVOCATES

INITIATION OF DISCIPLINARY PROCEEDINGS

AGAINST ADVOCATE HELD, IMPROPER

B ALWANT SINGH THAKUR (RESPONDENT NO.

1 HEREIN-THE complainant) had lodged a
complaint with the Bar Council of Chhattisgarh
the act of the appellant was not as an Advocate and,
therefore, could not amount to committing
misconduct. In order to appreciate this contention
(hereinafter referred to as the 'State Bar Council') on one may refer to Rule 22 under Chapter II of the
19.12.2003 against Kaushal Kishore Awasthi-the Standards of Professional Conduct and Etiquette
appellant, who is an Advocate by profession, alleging framed by the BCI in exercise of its power under
that the appellant had acted in a manner which Section 49(1)(c) of the Advocates Act, 1961. This
amounts to professional misconduct. On that basis, Rule reads as under:
the complainant pleaded that disciplinary action be
"22. An advocate shall not, directly or
taken against him. Taking cognizance of the said
indirectly, bid for or purchase, either in his
complaint, a Disciplinary Committee was constituted
own name or in any other name, for his own
as the reply dated 03.02.2006 filed by the appellant was
benefit or for the benefit of any other person,
found not to be satisfactory . After recording the
any property sold in the execution of a decree
evidence and hearing the parties, the Disciplinary
or order in any suit, appeal or other
Committee passed final orders dated 09.12.2006
proceeding in which he was in any way
holding the appellant guilty of professional
professionally engaged. This prohibition,
misconduct and, on that basis, imposed punishment
however, does not prevent an advocate from
by suspending his license of practice for a period of
bidding for or purchasing for his client any
two years. The appellant preferred statutory appeal
property which his client may himself legally
against the said decision of the State Bar Council
bid for or purchase, provided the Advocate is
before the Bar Council of India (BCI). Vide the
expressly authorised in writing in this
impugned judgment, the BCI has affirmed the finding
behalf."
of the State Bar Council as far as holding the appellant
guilty of misconduct is concerned. However, it has TTTTTTT
reduced the term of suspension of license from 2 years
Section 35 of the Advocates Act, 1961, as per which
to one year along with cost of Rs.25,000/- to be paid
punishment can be awarded to an Advocate for
to the complainant.
misconduct makes the following reading:
Against the above order of the BCI, the appeal was
35. Punishment of advocates for misconduct.-
filed by the appellant. The Supreme Court accepted
the appeal, set aside the impugned orders passed by (1) Where on receipt of a complaint or
the Bar Council of India. otherwise a State Bar Council has reason to
believe that any advocate on its roll has been
The operative part of the judgment reads as under:- guilty of professional or other misconduct, it
shall refer the case for disposal to its
Without prejudice to his defence, the learned counsel
disciplinary committee.
for the appellant submitted that even if the aforesaid
contents in the complaint are accepted as correct, (1A) The State Bar Council may, either of its

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own motion or on application made to it by
any person interested, withdraw a proceeding
pending before its disciplinary committee and
direct the inquiry to be made by any other
disciplinary committee of that State Bar
Council.
(2) The disciplinary committee of a State Bar
Council 2[***] shall fix a date for the hearing
of the case and shall cause a notice thereof to
be given to the advocate concerned and to the
Advocate-General of the State.
(3) The disciplinary committee of a State Bar
Council after giving the advocate concerned
and the Advocate-General an opportunity of
being heard, may make any of the following
orders, namely:
(a) dismiss the complaint or , where the
proceedings were initiated at the instance of
the State Bar Council, direct that the
proceedings be filed;
(b) reprimand the advocate;
(c) suspend the advocate from practice for such
period as it may deem fit;
(d) remove the name of the advocate from the
State roll of advocates.
(4) Where an advocate is suspended from
practice under clause (c) of sub-section (3), he
shall, during the period of suspension, be
debarred from practising in any court or before
any authority or person in India.
(5) Where any notice is issued to the Advocate-
General under sub-section (2), the Advocate-
General may appear before the disciplinary
committee of the State Bar Council either in
person or through any advocate appearing on
his behalf.
TTTTTTT
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ADVOCATES
It is very clear from the provisions of Section 35 that
punishment can be awarded to an Advocate if he is
found guilty of professional or other misconduct. Rule
22 is the relevant Rule in the instant case which
proscribes an Advocate from directly or indirectly
making a bid for or purchase either in his own name
or in other's name for his own benefit or for the benefit
of any other person any property sold in the execution
of a decree or order in any suit, appeal or other
proceedings in which he was in any way
professionally engaged.
TTTTTTT
Admittedly, in the instant case, the complainant was
selling the property to the intending buyer which was
an arrangement between them unconnected with any
legal proceedings. The said property was not being
sold in execution of any decree, in which proceedings
the appellant was engaged, as noted above. Insofar
as the filing of the Suit by the appellant on behalf of
the complainant is concerned, that had resulted into
passing of decree and the proceedings had concluded.
Even as per the complainant's own admission, it is
much thereafter that the complainant intended to sell
the property in question when he found himself in
need of money. It is this sale which the appellant tried
to interdict. He was not doing so in the capacity of
an Advocate. As per him, the complainant was not
authorised to sell the property without repaying his
debt. Whether the appellant was right in this
submission or not, is not relevant. What is relevant is
that this act has nothing to do with the professional
conduct of the appellant.
TTTTTTT
Reference : Supreme Court. Kaushal Kishore Awasthi
v. Balwant Singh Thakur & Anr., civil appeal no. 15540
of 2017.
—————
May 2018 I 225
 LAW FOR YOU
INSURANCE COMPANY TOLD TO PAY
AWARD AMOUNT TO CLAIMANTS IN
FIRST INSTANCE, AND IN TURN
RECOVER THE SAME FROM OWNER
OF VEHICLE
Insurance Company can be fastened with liability on
basis of valid insurance policy only alter basic facts are
pleaded and established by owner of offending vehicle-
that vehicle was not only duly insured but also that it
was driven by authorized person having valid driving
licence. Without disclosing name of driver in Written
Statement or producing any evidence to substantiate
fact that copy of driving licence produced in support
was of person who, in fact, was authorized to drive
offending vehicle at relevant time, owner of vehicle
cannot be said to have extricated himself from his
liability. Insurance Company would become liable only
after such foundational facts are pleaded and proved
by owner of offending vehicle. However, considering
fact that owner of vehicle had produced insurance
certificate indicating that offending vehicle was
comprehensively insured by insurance company and in
order to subserve ends of justice, insurance company
directed to pay claim amount awarded by Tribunal to
claimants in first instance, with liberty to recover same
from owner of vehicle in accordance with law.
Reference: SC. Pappu and others v. Vinod Kumar
Lamba and another, civil appeal no. 20962 of
2017 [arising out of SLP (C) No. 29032 of 2015].
DOCTRINE OF ESCHEAT
Doctrine of escheat postulates that where an individual
dies intestate and does not leave behind heir who is
qualified to succeed to property, property devolves on
Government. Though property devolves on Government
in such an eventuality, yet Government takes it subject
to all its obligations and liabilities. State in other words
does not take property "as rival or preferential heir of
deceased but as lord paramount of whole soil of
226 I May 2018
country". Hindu SuccessionAct (30 of 1956) S. 29 comes
into operation only on there being failure of heirs. Failure
means total absence of any heri to person dying intestate.
When question of escheat arises, onus rests heavily on
person ho asserts absence of heir qualified to succeed
to estate of individual who has died intestate to establish
case. Law does not readily accept such consequence.
In other words, even in situation here founder or his line
of heirs is extinct, and properties escheat to State, the
State which receives dedicated property is subject to trust
and cannot treat it in manner of secular property. Escheat
is doctrine which recognizes State as paramount
sovereign in whom property would vest only upon clear
and established case of failure of heirs. This principle is
based on norm that in society governed by rule of law,
Court will not presume that private titles are overridden
in favour of State, in absence of clear case being made
out on basis of governing statutory provision. To allow
administrative authorities of State-including Collector to
adjudicate upon matters of title involving civil disputes
would be destructive of rule of law. Collector is officer of
State. He can exercise only such powers as law
specifically confers upon private disputes. In contrast,
Civil Court has jurisdiction to adjudicate upon all matters
involving civil disputes except where jurisdiction of Court
is taken away, either expressly or by necessary
implication, by statute. In holding that Collector acted
without jurisdiction, it is not necessary for Court to go
as far as to validate title which is claimed by petitioner
to property. Court is not called upon to decide whether
possession claimed by trust of over forty-five years is
backed by credible title. Essential point is that such an
adjudicatory function could not have been arrogated to
himself by Collector. Adjudication on titles must follow
recourse to ordinary civil jurisdiction of Court of
competent jurisdiction under S. 9 of Civil P.C.
Reference: SC. Kutchi Lal Rameshwar Ashram
Trust evam Anna Kshetra Trust Thr. Velji Devshi
Patel v. Collector, Haridwar and others, civil
appeal no.3878 of 2009.
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ONE OUT OF SEVERAL GROUNDS IS
SUFFICIENT TO EVICT TENANT
Even if landlord is able to make out only one ground
out of several grounds of eviction, he is entitled to seek
eviction of his tenant from suit premises on basis of
that sole ground which he has made out under Rent
Act. In other words, it is not necessary for landlord to
make out all grounds which he has taken in plaint for
claiming eviction of tenant under Rent Act. If one
ground of eviction is held made out against tenant, that
ground is sufficient ot evict tenant from suit premises.
Reference: SC. Flora Elias Nahoum and others
v. Idrish Ali Laskar, civil appeal no. 4189 of 2007.
EFFECT OF INTERIM ORDER OF
STAY IN FINANCIAL MATTERS
In financial matters grant of ex-parte interim orders can
have deleterious effect and it is not sufficient to say
that aggrieved has remedy to move for vacating interim
order. Loans by financial institutions are granted from
public money generated at tax payers expense. Such
loan does not become property of person taking loan,
but retains its character of public money given in
fiduciary capacity as entrustment by public. Timely
repayment also ensures liquidity to facilitate loan to
another in need, by circulation of money and cannot
be permitted to be blocked by frivolous litigation by
those who can afford luxury of same.
Reference: SC. Authorized Officer, State Bank
of Travancore and another v. Mathew K.C., civil
appeal no. 1281 of 2018 [arising out of SLP (C)
No. 24610 of 2015].
ADMISSIBILITY OF ELECTRONIC
RECORDS
Applicability of procedural requirement under S. 65B(4)
of Evidence Act (1 of 1872) of furnishing certificate is
to be applied only when such electronic evidence is
produced by person who is in position to produce such
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LAW FOR YOU
certificate being in control of said device and not of
opposite party. In case where electronic evidence is
produced by party who is not in possession of device,
applicability of Ss. 63 and 65 of Act cannot be held to
be excluded. In such case, procedure under said
Sections can certainly be invoked. If this is not so
permitted, it will be denial of justice to person who is in
possession of authentic evidence/witness but on
account of manner of proving, such document is kept
out of consideration by Court in absence of certificate
under S. 65B(4) of EvidenceAct, which party producing
cannot possibly secure. Thus, requirement of certificate
under S. 65B(4) is not always mandatory. Party who is
not in possession of device from which document is
produced, such party cannot be required to produce
certificate under S. 65B(4) of Act. Applicability of
requirement of certificate being procedural can be
relaxed by Court wherever interest of justice so justifies.
Reference: SC. Shafhi Mohammad v. State of
Himachal Pradesh, Special Leave Petition (Crl.)
No. 2302 of 2017 with 9431 of 2011 and 9631-
9634 of 2012.
RIGHTS OF COPARCENERS
EMANATE AND FLOW FROM BIRTH
Law relating to joint Hindu family governed by
Mitakshara law has undergone unprecedented changes.
Said changes have been brought forward to address
growing need to merit equal treatment to nearest female
relatives, namely daughters of coparcener. Section
stipulates that daughter would be coparcener from her
birth, and would have same rights and liabilities as that
of son. Daughter would hold property to which she is
entitled as coparcenary property, which would be
construed as property being capable of being disposed
of by her either by Will or any other testamentary
disposition. These changes have been sought to be
made on touchstone of equality, thus seeking to remove
perceived disability and prejudice to which daughter
was subjected. S. 6, of Hindu Sucession Act as
May 2018 I 227
LAW FOR YOU
amended, stipulates that on and from commencement
of amended Act, 2005, daughter of coparcener shall by
birth become coparcener in her own right in same
manner as son. It is apparent that status conferred upon
sons under old section and old Hindu Law was to treat
them as coparceners since birth. Amended provision
now statutorily recognizes rights of coparceners of
daughters as well since birth. Section uses words in
same manner as son. It should therefore be apparent
that both sons and daughters of coparcener have been
conferred right of becoming coparceners by birth. It is
the very factum of birth in coparcenary that creates
coparcenary, therefore sons and daughters of
coparcener become coparceners by virtue of birth.
Devolution of coparcenary property is later stage of and
consequence of death of coparcener. First stage of
coparcenary is obviously its creation as explained above,
and as is well recognized. One of incidents of
coparcenary is right of coparcener to seek severance
of status. Hence, rights of coparceners emanate and flow
from birth now including daughters.
Reference: SC. Danamma alias Suman Surpur
and another v. Amar and others, civil appeal
nos. 188-189 of 2018 [arising out of SLP (C)
Nos. 10638-10639 of 2013].
REMEDIES AVAILABLE AGAINST EX
PARTE DECREE
Defendant against whom ex parte decree is passed has
two options. First is to file appeal. Second is to file
application under O. 9, R. 13 of Civil P.C. (5 of 1908).
Defendant can take recourse to both proceedings
simultaneously. Right of appeal is not taken away by
filing application under O. 9, R. 13. But if appeal is
dismissed as result of which ex parte decree merges with
order of Appellate Court, petition under O. 9, R. 13
would not be maintainable. When application under O.
9, R. 13 is dismissed, remedy of defendant is under O.
43, Rule 1. However, once such appeal is dismissed,
same contention cannot be raised in first appeal under
228 I May 2018
S. 96 of Code.
Reference: SC. M/s. Neerja Realtors Pvt. Ltd. v.
Janglu (Dead) Thr. LR., civil appeal no. 71 of
2018 [arising out of SLP (C) No. 5847 of 2017].
EX PARTE JUDGEMENT RENDERED
IN CRYPTIC FASHION IS 'PER
INCURIAM'.
Ratio decidendi of judgement is principle of law adopted
having regard to line of reasoning of Judge which alone
binds in future cases. Such principle can only be laid
down after discussion of relevant provisions and case
law on subject. If only one side is heard and judgement
of High Court is reversed, without any line of reasoning,
and certain conclusions alone are arrived at, without any
reference to any case law, it would be difficult to hold
that such Supreme Court judgement would be binding.
Reference: SC. Jayant Verma and other v. Union
of India and others, writ petition (Civil) No. 134
of 2013.
DISPUTE IN RELATION TO NON-
AWARD OF INTEREST TO LAND
OWNERS, CAN BE RAISED IN WRIT
PETITION
Dispute relating to non-award of interest to landowners,
whether under S. 28 or S. 34 is not dispute, which falls
under S. 18 or/and 28-A(3) of Act. In other words,
reference under S. 18 can only be made by Collector in
respect of those issues, which are specified under S.
18. Dispute relating to non-award of interest payable
to landowners under S. 28 or/and S. 34 of Act is not
specified under S. 18 and hence it is not capable of
being referred by Collector to Civil Court under S. 18 of
Act. It is also for reason that payment of interest is
statutory in character and being statutory , it is
mandatory for payment once conditions specified under
S. 28 or/and 34 are fulfilled. It is true that once interest
is awarded by Court under S. 28 or by Collector under
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S. 34 of Act, it becomes part of award. However, it is
hardly of any significance and has no bearing for
deciding question of remedy to challenge issue relating
to non-award of interest. Thus, dispute in relation to
non-award of interest can be raised by aggrieved
person only by taking recourse to Art. 226 of
Constitution in writ petition. In other words, reference
under S. 18 or S. 28-A(3) cannot be considered to be
alternative statutory remedy available to landowner for
getting question of non-award of interest payable
under Ss. 28 or/and 34 of Act decided by Civil Court.
Reference: SC. Union of India and another v.
Pushpavathi and others Etc., civil appeal nos.
1622-1631 with 1632-1641 and 1642-1643 of
2018 [arising out of SLP (C) Nos. 4689-4698
with 20089-20098 and 21043-21044 of 2012].
ALL TRADE DISCOUNTS ARE
ALLOWABLE AS PERMISSIBLE
DEDUCTIONS
Liability to pay tax is on taxable turnover. Taxable
turnover is arrived at after making permissible
deductions from total turnover. Among them are "all
amounts allowed as discounts". Such discount must,
however, be in accord with regular trade practice of
dealer or contract or agreement entered into in particular
case. Expression "tax invoice or bill of sale issued in
respect of sales relating to such discount shows amount
allowed as such discount" is not happily worded.
Words "in respect of sales relating to such discount"
cannot be construed to mean that discount would be
inadmissible as deduction unless tax invoice pertaining
to goods originally issued shows discount. This is
matter of ascertainment. Assessee must establish from
its accounts that discount relates specifically to sales
with reference to which it is allowed. In first part of
proviso, Rule 3(2)(c) recognizes trade practice or, as case
may, contract or agreement of dealer. Latter part which
provides methodology for ascertainment does not
override earlier part. Both must be construed together.
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LAW FOR YOU
Above all, it must be remembered that taxable turnover
is turnover net of deductions. All trade discounts are
allowable as permissible deductions.
Reference: SC. M/s. Maya Appliances (P) Ltd.
now known as Preethi Kitchen Appliances Pvt.
Ltd. v. Addl. Commissioner of Commercial Taxes
and others, civil appeal nos. 357-367 of 2018
[arising out of SLP (Civil) Nos. 24249-24259 of
2014].
PARTY CANNOT BE ALLOWED TO
TAKE BENEFIT OF HIS OWN WRONG
No litigation can derive benefit of pendency of case in
court of law. In case any interim order is passed during
pendency of litigation it merges in final order. In case,
case is dismissed interim order passed during its
pendency is nullified automatically. It is also settled that
party cannot be allowed to take benefit of his on wrong
as 'commodum ex injuria sua nemo habere debet' i.e.
convenience cannot accrue to party from his own
wrong. "No person ought to have advantage of his own
wrong." In case litigation has been filed without any
basis and interim order is passed it would be giving
illegal benefit or wrongful gain for filing untenable claim.
Maxim 'actus curiae neminem gravabit' comes to rescue
of opposite party who has suffered due to interim order
and was unable to take steps. Principle that act of court
shall prejudice no one is clearly applicable in such case.
Court is under an obligation to undo wrong done to
party by act of court and to make restitution under
inherent powers. Thus any undeserved or unfair
advantage gained by party invoking jurisdiction of
court must be neutralized, as institution of litigation
cannot be permitted to confer any advantage on suitor
from delayed action by act of court.
Reference: SC. Indore Development Authority
v. Shailendra (Dead) Through Lrs. and others,
civil appeal no. 20982 of 2017.
ooooooo
May 2018 I 229
SPECIFIC PERFORMANCE
GRANTING DECREE FOR SPECIFIC PERFORMANCE
OF CONTRACT, IS DISCRETION TO BE EXERCISED
ON SOUND PRINCIPLES
R ESPONDENT NOS. 2 TO 6 EXECUTED AN
AGREEMENT TO SELL dated 19.04.1989 in
favour of Krishan Lal, the predecessor-in-interest of
the appellants for sale of their 5/16th share in Khasra
Nos.430 and 431 equal to 02257 hectares for
consideration of Rs.90,000/. Respondent Nos.2 to 6
received full consideration of Rs.90,000/- and handed
over possession to the plaintiff. The plaintiff after
getting possession constructed three shops in the suit
land. Respondent Nos.2 to 6 executed a gift deed in
favour of respondent No.1 of the suit land on
08.07.1991. When in spite of respondents having
received the entire sale consideration the sale deed
was not executed and with mala fide intention the gift
deed was executed in favour of respondent No.1. Civil
Suit No.148 of 1991 was filed by Krishan Lal. Written
statements were filed by defendant Nos.1 to 5 jointly
and separate written statement was filed by defendant
No.6 who is respondent No.1 in the present appeal. It
was admitted to all defendants that the suit land has
been gifted in favour of defendant No.6 by gift deed
dated 08.07.1991. The execution of agreement to sell
was not disputed and the receipt of total sale
consideration was also not denied. The trial court
decreed the suit vide its judgment and order dated
31.03.1999. The trial court declared that gift deed
executed by defendant Nos.1 to 5 in favour of
defendant No.6 is null and void to the extent they
relate to the doner's 5/16th share in the suit land that
was agreed to be sold by them to the plaintiff, decree
of specific performance was granted in favour of the
plaintiff against defendant Nos.1 to 5. The appeal was
filed by defendant No.6 only against the judgment of
the trial court which was also dismissed by the First
Appellate Court vide its judgment dated 17.12.2001.
Defendant No.6 filed Regular Second Appeal in the
230 I May 2018
High Court being RSA No.117 of 2002. During
pendency of the second appeal in the High Court
notification under Section 4 of the Land Acquisition
Act dated 22.12.2005 was issued for acquisition of suit
land. An award dated 10.06.2008 was also given for
the land as well as three shops which were
constructed in the suit land. The name of defendant
No.6 being recorded in the Revenue records
compensation was awarded in favour of defendant No.
6.
Before the High Court a submission was raised on
behalf of defendant No.6 that the land has been
acquired during the pendency of Regular Second
Appeal, the decree of the specific performance cannot
be maintained. The High Court agreeing with the
submission of defendant No.6 modified the decree by
ordering respondent Nos.2 to 6 to pay a sum of
Rs.90,000/- to the plaintiff with interest @ 9% per
annum from the date of filing of the suit.
Against the judgement of the High Court special leave
petition was filed. The Supreme Court accepted the
appeal. The judgment and decree of the High Court
dated 02.11.2012 was modified.
The operative part of the judgment reads as under:-
From materials brought on record, it does appear
compensation was determined in favour of defendant
No.6 to the extent of amount of Rs.10,03,743/. It also
appears that compensation towards shops was also
determined. The name of defendant No.6 being
recorded in the Revenue records, compensation was
determined in its favour. In view of the judgment and
decree of courts below whereby the gift deed dated
08.07.1991 has been declared void, defendant No.6
is left with no right in the suit land and is clearly not
entitled to receive any amount consequent to the
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acquisition of the suit land.
TTTTTTT
Taking into consideration overall facts of the present
case, we are of the view that ends of justice be served
in awarding compensation of Rs.10 lakh in favour of
the plaintiff-appellants out of the compensation
received consequent to the acquisition of the suit land.
The rest of the compensation, if any, received towards
land and shops in question has to be paid to the land
owner that is defendant Nos.1 to 5 (respondent Nos.2
to 6 to this appeal) after deducting an amount of
Rs.10 lakh out of the said compensation. We further
direct in event compensation has not yet been
SPECIFIC PERFORMANCE
disbursed, the compensation be disbursed to the
appellants (legal heirs of the plaintiff) and respondent
Nos.2 to 6 in the above manner and in the event the
compensation has been received by defendant No.6
(respondent No.1), respondent No.1 shall return the
compensation to the extent of Rs.10 lakh to the
appellants and the rest of the amount to defendant
Nos.1 to 5 (respondent Nos.2 to 6).
TTTTTTT
Reference : Supreme Court. Urmila Devi and Others
v. The Deity, Mandir Shree Chamunda Devi, Through
Temple Commissioner and Others, civil appeal no. 462
of 2018 [arising out of SLP (C) No. 25771 of 2013].
—————

GLOBAL GLIMPSE

OHIO SC UPHOLDS STATE'S DEATH PENALTY LAW

The Supreme Court of Ohio ruled that the state's death penalty statute does not violate the Sixth Amendment's
guarantee of "the right to a speedy and public trial, by an impartial jury[.]" Maurice Mason, a former death row
inmate, unsuccessfully challenged the role given to the judge during the sentencing phase of capital punishment
cases. The court unanimously upheld Ohio's law as being in line with the requirements laid out by the US
Supreme Court in Hurst v. Florida. In Ohio, the jury must first come to a guilty verdict [ORC § 2929.03]. Next,
the jury determines the presence of aggravating and mitigating factors [ORC § 2929.04]. Then, the jury itself
must make a finding that the aggravating factors outweigh the mitigating ones. Only after this finding has
resulted in a recommendation of the death penalty does the judge's sentencing discretion come into play . If the
judge agrees with the jury's weighing of the relevant factors, the judge may sentence the defendant to death.
In the absence of a unanimous jury verdict on any of these questions, or if the judge disagrees with the jury's
weighing of the factors, the judge can only hand down a life sentence. The US Supreme Court has interpreted
the Sixth Amendment as requiring every fact necessary for imposition of capital punishment to be determined
by the jury. Most recently, in Hurst, the court struck down Florida's capital punishment sentencing scheme.
Under the invalidated law, after a jury rendered a guilty verdict, the judge determined whether aggravating
factors counseling in favor of the death penalty outweighed mitigating factors counseling against. Noting the
differences between the Florida statute at issue in Hurst and the Ohio statute, the court rejected Mason's
interpretation of the Sixth Amendment. Ohio trial judges may weigh aggravating circumstances against mitigating
factors and impose a death sentence only after the jury itself has made the critical findings and recommended
that sentence. Thus, "the judge's authority to sentence derives wholly from the jury's verdict". Under Ohio's
death-penalty scheme, therefore, trial judges function squarely within the framework of the Sixth Amendment.
Because all of the elements needed for a capital punishment sentence are determined by the jury, the Ohio
Supreme Court found the law to be in accordance with Hurst and with the US Constitution.

www.lawteller.com May 2018 I 231

CRIMINAL LAWS
SENTENCE OF LIFE IMPRISONMENT RESTORED
O N 30.07.2003, INFORMANT BHARAT SINGH
ALONG WITH HIS son Lallu Singh, Shivpati wife
of Lallu Singh, Dheerendra Singh (PW-1), Monu (PW-
2) and Meenu were returning home after working in
their fields at 09.00 P.M. At about 09.00 P.M., when
they reached near huts constructed near the field of
Hanuman alias Mana, then in ambush Prem Bhujva,
Raghuvir, Mehngu and Prem Yadav, extended
exhortation and fired at Lallu Singh with country-made
pistol and guns. Lallu Singh died on the spot and all
the accused persons ran away towards the village.
The incident is stated to be the result of an enmity
culminating into hatching of conspiracy by the accused
due to a Marpit taken place three days prior to the
incident between Sriram Gupta and Shiv Charan on one
side and the deceased on the other wherein they had
threatened the deceased to kill. On account of heavy
rain during night and due to fear of the accused, the
incident was not reported on the same night.
Bharat Singh lodged complaint (Ex.A1) on the next day
i.e. on 31.07.2003 at 10.00 a.m., based on which FIR
No.103 of 2003 (Ex.A3) was registered under Section
302 IPC read with Section 120B IPC. Upon completion
of investigation, chargesheet was filed under Section
302 read with Section 34 IPC and Section 120B IPC on
17.10.2003 against the accused Prem Bhujva, Raghuvir,
Mehngu and Prem Yadav with two others Shiv Charan
and Ram Gupta.
The trial court examined seven prosecution witnesses
including two eye witnesses Dheerendra Singh (PW-
1) and Monu (PW-2), PW-3-SI Dharampal Singh, PW-
4-Dr. Rajesh Kumar Srivastava who conducted post
mortem (Ex. A4) and PWs 4 to 7 who were other
witnesses and investigating of ficer. Upon
consideration of evidence, the trial court held that
evidence of eye witnesses PW-1 and PW-2 is credible
and trustworthy. Based upon the evidence of eye
witnesses PW-1 and PW-2, the trial court held that gun
232 I May 2018
was recovered from the possession of accused Prem
Yadav and as per the ballistic report, the gun
recovered from the possession of accused Prem Yadav
tallied with the empty cartridges recovered from the
place of occurrence and on those findings, the trial
court convicted all the four accused persons under
Section 302 IPC and sentenced each of them to
undergo imprisonment for life and a fine of Rs.5,000/-
was imposed on each of them with default clause.
Aggrieved by the conviction, the respondents/
accused filed criminal appeal before the High Court.
The High Court set aside the conviction and held that
the delay in lodging FIR has not been satisfactorily
explained. The High Court held that the evidence and
incriminating circumstances are not suf ficient to hold
the accused guilty and reversed the judgment of the
trial court and acquitted all the accused.
Being aggrieved by the judgement of the High Court,
State of U.P. filed special leave petition. The Supreme
Court held that the High Court rightly extended the
benefit of doubt to Prem Bhujva, Raghuvir and
Mehngu. In the result, the appeal preferred by the
State pertaining to accused Prem Yadav was allowed.
The conviction of accused Prem Yadav under Section
302 IPC and the sentence of life imprisonment awarded
by the trial court were confirmed. In sofar as the appeal
preferred by the State pertaining to Prem Bhujva,
Raghuvir and Mehngu, were dismissed.
The operative part of the judgment reads as under:-
As pointed out by the trial court, PW-1 and PW-2
being related to deceased Lallu Singh, it is quite
natural that after working in the fields, while
returning to their houses, they accompanied the
deceased Lallu Singh. The trial court which had the
opportunity of seeing and observing the demeanour
of PW-1 and PW-2, found that evidence of PW-1 and
PW-2 is trustworthy and their identification of the
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accused persons cannot be doubted. The High Court,
in our view, was not right in doubting the evidence
of PW-1 and PW-2 and upset the verdict of conviction.
TTTTTTT
For doubting the prosecution case and for acquitting
the accused, the High Court inter alia reasoned:- (i)
inconsistency between evidence of PW-1 and PW-2;
(ii) whether it was raining or not on the night of
30.07.2003; (iii) PW-1 and PW-2 stated that there
were four shots but the deceased had only two fire-
arm injuries; (iv) two lacerated injuries found on the
body of the deceased Lallu Singh were not explained;
and (v) that the members of the family who were along
with the deceased Lallu Singh must have received
injuries; absence of such injuries raise doubt about
the prosecution case. The above reasonings recorded
by the High Court, in our considered view, are not
adequate to doubt the credibility of the eye witnesses
PW-1 and PW-2. As pointed out earlier, PW-1 and PW-
2 were about five-six steps behind the deceased and
the accused were about seven-eight steps in front of
the deceased. Since the gun shots were fired at the
deceased, others in the complainant party may not
have sustained gun-shot injuries or they might have
tried to protect themselves.
TTTTTTT
Even though PW-1 and PW-2 have stated that there
were four shots, two gun shots might have hit the
deceased as there were only two gun-shot injuries and
other shots might have missed the target. There is no
justification for blowing such trivial discrepancies to
doubt the evidence of PW-1 and PW-2 and the
prosecution case and the High Court could not have
referred to the same, much less relied upon the same
to reverse the verdict of conviction. So far as
contradiction in the evidence of PW-1 and PW-2 is
concerned, in our considered view, the discrepancies
pointed out by the High Court neither affect the
credibility of PW-1 and PW-2 nor is fatal to the
prosecution case.
TTTTTTT
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CRIMINAL LAWS
PW-1 and PW-2 have stated that though it was night
time, they were able to recognize the accused persons
in torch light. Accused Prem Bhujva is from the same
village as of deceased Lallu Singh i.e. Devmai and
the remaining three accused persons are from village
Diwan Kheda which is situated at a distance of one
kilometer from their village. The trial court found that
evidence of PW-1 and PW-2 is trustworthy and their
identification of the accused persons cannot be
doubted.
TTTTTTT
The object of Section 313 Cr .P.C. is to put a
circumstance against the accused so that he may meet
out the prosecution case and explain the
circumstances brought out by the prosecution to
implicate him in the commission of the offence. If any
circumstance had not been put to the accused in his
statement, the same shall be excluded from
consideration. Of course, this is subject to a rider
whether omission to put the question under Section
313 Cr.P.C. has caused miscar riage of justice or
prejudice to the accused. As pointed out earlier, in
the case in hand, recovery of gun from the accused
Prem Yadav and the ballistic expert's opinion (Ex.
A14) is only a corroborative piece of evidence
strengthening the prosecution case as established by
the oral testimony of eye witnesses PW-1 and PW-2.
Even assuming that the question regarding the
ballistic expert's evidence has not been put to the
accused under Section 313 Cr.P.C., in the facts and
circumstances of the case in hand, it must be held that
it has caused no prejudice to the accused. In our
considered view, the High Court was not right in
brushing aside this formidable circumstance against
accused Prem Yadav.
TTTTTTT
Reference : Supreme Court. State of U.P. v. Raghuvir
and anr. etc. etc., criminal appeal nos. 2175-2177 of 2017
[arising out of SLP (Crl.) Nos. 349-351 of 2015].
—————
May 2018 I 233
CRIMINAL LAWS
PROBATIVE VALUE OF THE MATERIAL ON RECORD HAS
TO BE GONE INTO, AT THE TIME OF FRAMING CHARGE
R ESPONDENT NO. 2 HEREIN/DEF ACTO
COMPLAINANT LODGED a complaint alleging
that he entered into an agreement for sale in
connection with purchase of property situated in
survey no. 171/2A, Thalambur village, Chengalpet
Taluk, Kancheepuram District, Chennai to the extent
of 2.94 acres for a total sale consideration of Rs.
5,14,50,000/- belonging to Smt. S. Selvi on 5.7.2007,
with her power of attorney Mr. Jothimani-accused no.
1 who is the son-in-law of Smt. S. Selvi. The defacto
complainant is stated to have paid a sum of Rs.
2,00,00,000/- by way of cheque dated 5.7.2007 towards
advance, Rs. 1,00,00,000/- by way of cheque on
21.7.2007 and Rs. 50,00,000/- on 6.8.2007. The balance
of sale consideration, though were allegedly tried to
be paid by the defacto complainant repeatedly, both
the accused refused to receive the same and to carry
out the terms of the agreement. During the year 2011,
accused no. 1 issued three cheques for repaying the
amount received from the defacto complainant and all
of them were returned 'unpaid' by the bank. Hence for
the purposes of recovery of amount, the defacto
complainant visited the house of respondent no. 1 on
20.9.2011 and at that time he was threatened with dire
consequences, beaten and pushed out of the house
of accused/respondent no. 1 by her and accused no.
1. A complaint came to be lodged on 21.9.2011 before
the Commissioner of Police, Egmore, Chennai. Since
no action was taken by the Commissioner of Police,
the defacto complainant preferred Criminal O.P. No.
17945/2012 before the High Court of Judicature at
Madras under Section 482 of the Code of Criminal
Procedure. On being directed by the High Court vide
its order dated 7.9.2012, the complaint came to be
registered by Central Crime Branch, Team-III, Chennai
as C.C.B. Crime No. 484 of 2012 on 18.9.2012. The
234 I May 2018
police after investigation laid a final report before the
Judicial Magistrate, 1st Class, Poonamallee on
1.10.2013, which came to be registered as CC No. 229/
2013.
Smt. S. Selvi-accused no. 2 argued for discharge before
the trial Court. Such arguments were turned down by
the trial Court and the application filed by her under
Section 239 of the Code of Criminal Procedure praying
for discharge was dismissed on 5.11.2015. As against
such order, Smt. S. Selvi approached the High Court
of Judicature at Madras in Crl. R.C. No. 1181 of 2015
and M.P. No. 1 of 2015. The High Court set aside the
order of the trial Court and discharged Smt. S. Selvi.
Against the judgement of the High Court special leave
petition was filed. The Supreme Court accepted the
appeal, the judgement of the High Court discharging
the accused was set aside. The trial court was directed
to proceed the matter in accordance with law against
the accused.
The operative part of the judgment reads as under:-
The Judge while considering the question of framing
charge under Section 227 of the Code in sessions
cases (which is akin to Section 239 Cr.P.C. pertaining
to warrant cases) has the undoubted power to sift and
weigh the evidence for the limited purpose of finding
out whether or not a prima facie case against the
accused has been made out; where the material
placed before the Court disclose grave suspicion
against the accused which has not been properly
explained, the Court will be fully justified in framing
the charge; by and large if two views are equally
possible and the Judge is satisfied that the evidence
produced before him while giving rise to some
suspicion but not grave suspicion against the
accused, he wil be fully within his rights to discharge
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the accused. The Judge cannot act merely as a Post
Office or a mouth piece of the prosecution, but has to
consider the broad probabilities of the case, the total
effect of the statements and the documents produed
before the Court, any basic infirmities appearing in
the case and so on. This however does not mean that
the Judge should make a roving enquiry into the pros
and cons of the matter and weigh the materials as if
he was conducting a trial.
TTTTTTT
High Court has virtually appreciated the entire
material on record as if the High Court is trying a
criminal case. At this preliminary stage, the High
Court was not justified in concluding that the accused
is entitled for discharge merely on the ground of
discrepancy in the timings of the incident. The
question as to whether respondent no. 1 was present
on the place of incident or not during the relevant
point of time or she had been in Calcutta as sought
to be argued before this Court is a matter of proof.
Such fact needs to be gone into by the trial Court after
recording the evidence. If on the basis of the material
on record, the Court would form prima facie opinion
CRIMINAL LAWS
that the accused might have committed offence, it can
frame charge, though for conviction it is required to
be proved beyond reasonable doubt that the accused
has committed the offence. At the time of framing of
charges, the probative value of the material on record
has to be gone into and the Court is not expected to
go deep into the matter and hold that the materials
would not warrant conviction. It is trite that at the
stage of consideration of an application for discharge,
the Court has to proceed with the presumption that
material brought on record by the prosecution are
true and evaluate such material with a view to find
out whether the facts emerging therefrom taken at
their face value disclose existence of the ingredients
of the offence.
TTTTTTT
Authorities relied upon : 2015 (2) SCC 417, 1979 (4)
SCC 274, 1979 (3) SCC 4.
Reference : Supreme Court. State by the Inspector
of Police, Chennai v. S. Selvi and another, criminal
appeal no. 2190 of 2017.
—————

GLOBAL GLIMPSE
FEDERAL JUDGE RULES FACEBOOK MUST FACE CLASS ACTION LAWSUIT
OVER FACIAL RECOGNITION
A judge for the US District Court for the Northern District of California ruled that Facebook must face a class
action lawsuit challenging the company's facial recognition and "tagging" technology. Judge James Donato
ruled that "Facebook users living in Illinois whose face appeared in a photo uploaded to Facebook from Illinois
between June 7, 2011", may proceed with the class action lawsuit. In support of his order, Donato found the
plaintiffs met all four requirements necessary to bring a class action lawsuit: (1) the class is "so numerous that
joinder of all members is impracticable"; (2) there are questions of law or fact in common; (3) the parties' claims
or defenses are "typical of the claims or defenses of the class"; and (4) the named parties proved they would
"fairly and adequately protect the interests of the class". The lawsuit also sought representation of "people
living in Illinois for whom Facebook has a stored 'face template' that was created between June 7, 2011," but
the court denied class action on this claim. The lawsuit alleges Facebook's "tag suggestions" violate Illinois'
Biometric Information Privacy Act, which prohibits private entities form collecting, capturing, purchasing,
receiving through trade or otherwise obtaining "a person's or customer's biometric identifier or biometric
information" without informed consent.

www.lawteller.com May 2018 I 235

CIVIL LAWS
PLAINTIFF CANNOT BE COMPELLED TO
PROSECUTE THE MATTER
A NIL KUMAR SINGH-THE APPELLANT IS THE
PLAINTIFF WHEREAS respondent Nos. 1 to 4
are defendant Nos.1 to 4 and respondent No.5 is
plaintiff No.2 as proforma respondent.
The dispute in this case is essentially between the
appellant and respondent Nos.1 to 4 and relates to a
land bearing number 629-A/0.0320 Hect. and 629-B/
1.5820 hect. situated in village - Asyoli Pargana,
Bangar, Tehsil and District Hardoi (UP) (hereinafter
referred to as "suit land").
The suit land claimed to be originally belonged to one
Shri Jinta s/o Dhamma. He sold it to two persons -
Abhishek Singh and Ajit Pratap Singh. Abhishek Singh
then claimed to have sold his half share to the
appellant on 25.02.2003 whereas Ajit Pratap Singh had
already sold his half share to one Khanulal Mishra on
15.11.2000. Khanulal then claimed to have sold his 1/
4th share out of his share to the appellant and
remaining half share to Ajit Pratap Singh on 04.06.2003.
In this way, the appellant claimed to become the owner
of the suit land to the extent of 3/4th and remaining 1/
4th fell to the share of Ajit Pratap Singh. The mutation
of the names of the owners of the suit land on their
respective shares was accordingly claimed to have
been done.
The appellant claimed to be doing business of making
brick kiln on the suit land after purchase of the suit
land in partnership with respondent No.5 under the
name - M/s Sushma Brick Field.
In May 2006, the appellant (plaintiff) filed a suit being
Civil Suit No.271/2006 in the Court of First Additional
Civil Judge, Hardoi and claimed permanent injunction
restraining respondent No. 1 from interfering in his
possession over the portion of the suit land. The
appellant also applied for grant of temporary
236 I May 2018
injunction under Order XXXIX Rules 1 and 2 of the
Code of Civil Procedure, 1908 (hereinafter referred to
as "the Code") against respondent No. 1 from
interfering in his possession over the portion of the
suit land which he claimed to have purchased.
On 31.05.2006, the Trial Court granted ex-parte
temporary injunction restraining respondent No.1 from
interfering in appellant's possession over the portion
of the suit land as claimed and issued notice of the
suit and the application made for grant of temporary
injunction to respondent No.1. The appellant, in the
meantime, also applied for police protection to ensure
that order dated 31.05.2006 is not violated by
respondent No.1 which was granted on 12.07.2006.
In the meantime, parties claimed to have entered into
a compromise wherein respondent No.1 agreed not to
interfere in appellant's possession. The appellant
accordingly filed an application under Order XXIII Rule
1 to withdraw the suit. Respondent No.1 opposed the
application. By order dated 14.08.2007, the Trial Court
allowed the application and permitted the appellant to
withdraw the suit subject to payment of cost of Rs.350/
- payable to respondent No.1 (defendant No.1). The
appellant's suit was accordingly dismissed as
withdrawn. The order reads as under:
"Case was called out. The parties are present.
The object of 61 C2 has been field by the O.P.
against the 56C2, let the same be included
with record. Heard. The application is
returned on costs of Rs.350/- with the
condition that there shall be restriction on
plaintiff to bring any other further suit
regarding the subject matter of present case
on this cause of action. The objections 61C2
stands disposed of accordingly.
Let the case be consigned to record room
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after necessary proceeding."
Respondent No.1 felt aggrieved and filed revision
under Section 115 of the Code before the Additional
District Judge, Hardoi. By order dated 05.08.2008, the
Additional District Judge dismissed the revision and
upheld the order of the Trial Court.
Respondent No.1 felt aggrieved and filed writ petition
(W.P. No.5453/2008) in the High Court at Allahabad
against the order of the Additional District Judge under
Article 227 of the Constitution of India. By order dated
28.05.2010, the High Court allowed the respondent's
writ petition, set aside the orders ofAdditional District
Judge and the Trial Court and also directed the
appellant (plaintiff) to place respondent No.1
(defendant No.1) in possession of the suit land.
It is against the above order, the plaintiff felt aggrieved
and filed special leave petition. The Supreme Court
accepted the appeal, impugned order was set aside
and the order of the Trial Court and Revision Court
were restored.
The operative part of the judgment reads as under:-
Reading of Order XXIII Rule 1 would go to show that
the plaintiff has a right to file an application to
abandon his suit or part thereof at any time after its
filing. However, if the permission to withdraw the suit,
whether full or part thereof is granted under Rule
1(3), then the plaintiff would be granted liberty to
institute a fresh suit on terms as the Court may deem
fit and proper to impose on the plaintiff in respect of
the same subject matter of the suit or part thereof.
TTTTTTT
If the permission to withdraw the suit is granted under
sub-rule (1) of Rule 1 read with sub-rule (4)(a) or
(b) then in such event, the plaintiff would only be
liable to pay cost to the defendant. However, in such
situation, he is precluded from filing a fresh suit in
respect of the same subject matter or part thereof.
TTTTTTT
In such case, the defendant has no right to raise any
objection to such prayer being made by the plaintiff
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CIVIL LAWS
except to ask for payment of the cost to him by the
plaintiff as provided in sub-rule (4). The reason is that
while making a prayer to withdraw the suit under Rule
1(1), the plaintiff does not ask for any leave to file a
fresh suit on the same subject matter. The defendant
has no right to compel the plaintiff to prosecute the
suit by opposing the withdrawal of suit sought by the
plaintiff except to claim the cost for filing a suit
against him.
TTTTTTT
However, when the plaintiff applies for withdrawal of
the suit along with a prayer to grant him permission
to file a fresh suit on the same subject matter as
provided in sub-rule (3) of Rule 1 then in such event,
the defendant can object to such prayer made by the
plaintiff.
TTTTTTT
Appellant (plaintiff) had applied for withdrawal of his
suit under Order XXIII Rule 1. The T rial Court
accordingly granted permission to the appellant to
withdraw the suit on payment of cost of Rs.350/- to
the defendants. This the Trial Court did by taking
recourse to the powers conferred under Order XXIII
sub-rule (4)(a) of Rule 1. The effect of this grant of
permission to the appellant was that though he was
allowed to withdraw the suit but was not permitted
to file a fresh suit on the same subject matter.
TTTTTTT
The High Court committed jurisdictional error in
allowing the defendant's writ petition by finding fault
in the orders of the Trial Court and Revision Court
and giving directions to the plaintiff to place
defendant No.1 in possession of the suit land without
there being any basis whatsoever.
TTTTTTT
As mentioned above, the High Court should have seen
that the scope of writ petition was confined to examine
the question as to whether the T rial Court and
Revision Court were justified in allowing the
application filed by the plaintiff under Order XXIII
Rule 1 of the Code and to decide this question, the
May 2018 I 237
CIVIL LAWS
High Court should have confined its inquiry to
examine as to whether the requirements of Order XXIII
Rule 1 were complied with or not but not beyond it.
TTTTTTT
The High Court should have seen that the issue of
grant of injunction was not the subject matter of the
writ petition and, therefore, it had nothing to do with
the question of withdrawal of the suit and secondly,
the withdrawal of a suit was governed by Order XXIII
Rule 1 of the Code whereas the injunction was
governed by Order XXXIX Rules 1 and 2 of the Code.
Both operate in different spheres. That apart, the
defendant did not challenge the ex-parte grant of
injunction order in appeal under Order XLIII Rule
1(r) and nor contested it before the Trial Court. It was
only in these two forums, the issue of injunction could
be considered by the Courts but not in present
proceedings which, as mentioned above, were
confined only to the question of withdrawal of suit
and nothing else.
TTTTTTT
We, however, make it clear that defendant No.1 would
be at liberty to raise issues relating to his ownership
and possession in relation to the suit land in
appropriate proceedings in accordance with law.
TTTTTTT
Reference : Supreme Court. Anil Kumar Singh v. Vijay
Pal Singh & Ors., civil appeal no. 20007 of 2017 [arising
out of SLP (C) No. 16749 of 2010].
—————

GLOBAL GLIMPSE

CANADA SC: CONSTITUTION DOES NOT 'GUARANTEE' FREE

INTERPROVINCIAL TRADE
The Supreme Court of Canada held that a law preventing the stocking up of alcohol from another province is
constitutionally valid. The case involved Section 134(b) of the New Brunswick's Liquor Control Act, which
forbids residents from possessing large amounts of alcohol not purchased from the New Brunswick Liquor
Corporation-i.e. purchased from other provinces. Post enactment of the law, the Royal Canadian Mounted Police
(RCMP) were monitoring New Brunswick residents who were crossing the border into Québec to buy cheaper
alcohol. In early October of 2012, Gerard Comeau drove to Québec from his home in New Brunswick to stock
up alcohol. On his way back, Comeau was stopped by the RCMP with large amounts of beer and some spirits
he bought in Québec. He was fined $240, plus fees. Comeau challenged the fine arguing that § 121 of the
Constitution Act (Constitution) guarantees free trade across provincial borders. The government responded §
121 had no applicability to Comeau's situation. The trial court sided with Comeau and dismissed the charge
and the New Brunswick Court of Appeal dismissed the government's request for permission to appeal. The
government then appealed further to the Canada Supreme Court. The Supreme Court unanimously reversed
the Court of Appeal. The Supreme Court's reversal only means that the Court of Appeal's dismissal of the
government's permission to appeal has been struck down and the government may now proceed with its appeal
from the trial court. However, the Court of Appeal will now be bound by the substantive reasoning of the
Supreme Court concerning § 134(b) as it relates to the Constitution while addressing any remaining issues or
arguments.

238 I May 2018 www.lawteller.com


TERMINATION ORDER DOES NOT MENTION A
WORD ABOUT SUPPRESSION, IT CANNOT BE
CALLED STIGMATIC
T EK CHAND-THE RESPONDENT WAS
APPOINTED AS conductor in Punjab Roadways,
Chandigarh-1 on temporary basis on 20.08.1979. His
services were terminated as he was detected in a
fraud case on 18.09.1979. Suppressing the said fact
of his termination, the respondent applied to the
post of clerk in the Office of Registrar Cooperative
Societies, Punjab on 23.05.1980 and was appointed
as clerk on adhoc basis. Respondent joined duty on
26.05.1980 as clerk in Cooperation Department,
Punjab. Government of Punjab issued a general
order dated 26.10.1982 to regularize the services of
adhoc employees as one time measure subject to the
terms and conditions contained in the said order .
While processing for the regularization of the adhoc
employees, the respondent's name was also taken
into consideration. The authorities informed that the
respondent had concealed the fact that he was
appointed in the Transport Department and was
terminated by an order of termination, relieving the
respondent from duties on 22.03.1983.
Thereafter the respondent filed a suit for declaration
that he was a regular employee and for
consequential relief of permanent injunction against
the appellants from terminating his services. By the
judgment dated 20.10.1984 the Trial Court i.e.
Learned Senior Sub Judge, Rupnagar dismissed the
suit. Thereafter the respondent approached the
District Court, Rupnagar by way of first appeal.
However, the respondent withdrew the said appeal
with liberty to file a fresh suit for challenging the
legality and validity of the order of termination
dated 22.03.1983. Thereafter, the respondent filed
Civil Suit No. 232 of 7.12.1985 before learned Senior
Sub Judge, Rupnagar for declaration that he is
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SERVICE
entitled to continue in service from 22.03.1983 and
for consequential relief of salary and other
emoluments. He also prayed for a declaration that
the order of termination of his services dated
22.03.1983 was illegal, void and is against the
principles of natural justice. The learned Senior Sub
Judge Rupnagar dismissed the suit on 12.11.1987,
which judgment came to be questioned by the
respondent by filing Civil Appeal before the learned
District Judge, Rupnagar . Learned Additional
District Judge, Rupnagar, allowed the Appeal on
1112.04.1990 and set aside the judgment of the Trial
Court dated 12.11.1987. The District Judge held that
the respondent should be deemed in continuous
service from 22.03.1983 and was entitled to
consequential reliefs as if his services had not been
terminated. Being aggrieved by the judgment of the
First Appellate Court, the appellants herein filed
Regular Second Appeal No. RSA 1804 of 1990
(O&M) before the High Court of Punjab and
Haryana at Chandigarh, which came to be partly
allowed on 14.07.2016. The High Court set aside the
judgment of the First Appellate Court to a certain
extent i.e. in part. The operative portion of the
judgment reads thus:
"9. In view of these facts and
circumstances, the order of the Appellate
Court is set aside in so far as "deemed to
be in continuous service from that date,
entitled to consequential reliefs as if his
services had not been terminated. The
Appellant shall also entitled to costs" are
concerned. The Appellant are directed to
held an enquiry, in accordance with law
with reference to decision taken for the
May 2018 I 239
SERVICE
purpose of regularization on 23.2.1983 after
giving necessary hearing to the
Respondent within a period of 6 months'
from today.
10. In the meanwhile, status of the
Respondent would be deemed to be under
suspension. In view of the decision of the
Supreme Court passed in Managing
Director Ecil v. B. Karunakar reported as
[1993 (4) SCC 727]. The Respondent is
entitled for subsistence allowance as per
the provisions. The same shall be
calculated and disbursed within a period of
3 months and continue to pay subsistence
allowance till a decision is taken in the
enquiry.
11. Appeal stands disposed of."
Registrar Cooperative Societies thereafter felt
aggrieved by the judgment of the High Court and
thus filed special leave petition. The Supreme Court
accepted the appeal, the judgement of the trial court
in Civil Suit No. 232 of 07.12.1985 was restored. It
is pertinent to mention here that the Supreme Court
having regard to the fact that the respondent has
worked for about three years as an adhoc employee
in the Department of Cooperation and keeping in
mind that the respondent was paid about
Rs.1,18,000/ towards subsistence allowance, the
Supreme Court thus ordered that the additional sum
of Rs.1,00,000/ be paid by the appellants to the
respondent employee within three months from the
date of this order.
The operative part of the judgment reads as under:-
The aforementioned order of termination is plain
and simple, it cannot be said that there is any
stigma attached to the plaintiff by the or der. Under
the relevant Service Rules, the services of an adhoc
employee like the plaintiff/respondent herein are
liable to be terminated at any point of time as soon
240 I May 2018
as the regular incumbent joins or after a period of
only six months whichever is earlier or if his work
and conduct is found unsatisfactor y. Even as per the
appointment letter of the respondent, the services
of the respondent were liable to be terminated at
any point of time when regular incumbent joins or
after six months of his ser vice whichever is earlier.
Thus the order of termination is in accordance with
the terms and conditions specified in the
appointment letter. When the file was put up befor e
the Departmental Scrutiny Committee for
considering the case of the respondent for
regularization of his services, the said Committee
did not approve the case of the respondent for
regularization. It did not mention any word in the
order which depicts that the order of termination
suffers from taint of being stigmatic in nature. Since
nothing is mentioned in the order of termination
about the act of the respondent suppressing his
termination from the Transport Department on the
grounds of fraud/embezzlement, it cannot be said
that stigma was attached to the respondent. If it is
so, no occasion arose for the Appellant-Department
to conduct an enquiry afresh against the
respondent.
TTTTTTT
In view of the above, we find that the judgment of the
Trial Court is just and pr oper. Consequently, the
judgments of the First and second Appellate Courts
are liable to be set aside and accordingly are set
aside. Appeal is allowed. The Judgment of the Trial
Court in Civil Suit No. 232 of 07.12.1985 is restored.
TTTTTTT
Reference : Supreme Court. Registrar Cooperative
Societies, Punjab & Ors. v. Tek Chand, civil appeal no.
21833 of 2017 [arising out of SLP (C) No. 35271/2017
@ CC No. 9195 of 2017].
—————
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 FLASH POINTS
RIGHT TO AVOID PROTRACTED PAIN
The Supreme Court judgment upholding a person's
advance directive to refuse medical treatment
attempts to answer the government's poser whether
the concept of 'Living Will' acts against a person's
"instinctive urge to survive." Additional Solicitor
General P.S. Narasimha, for the government, had
illustrated how it is unknown whether the struggle
to survive is still going on within a dying or a
comatose patient, even at the point of time when
doctors and relatives resolve to act upon his own
advance directive. Chief Justice Dipak Misra, who
headed the five-judge Constitution Bench, addressed
this argument by observing that "a patient in a
terminally ill or persistent vegetative state exercising
the right to refuse treatment may ardently wish to
live but, at the same time, he may wish to be free from
any medical surgery, drugs or treatment of any kind
so as to avoid protracted physical suf fering. Any
such person who has come of age and is of sound
mind has a right to refuse medical treatment."
"Suffering is a state of mind and a perception, which
varies from individual to individual and depends on
various environmental and social factors. Continuous
advancement in medical science has made possible
good pain management in patients of cancer and
other terminal illness," the government had argued.
To this, the court said "there is a presumption of
capacity whereby an adult is presumed to have the
capacity to consent to or to refuse medical
treatment."
PASSIVE EUTHANASIA, UPHELD
The Supreme Court has upheld passive euthanasia
and the right to give advance medical directives or
'Living Wills' to smoothen the dying process as part
of the fundamental right to live with dignity. A five-
judge Constitution Bench in four separate and
concurring opinions, ruled that the fundamental right
to life and dignity under Article 21 of the
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Constitution includes the "right to die with dignity."
Dignity is lost if a man is allowed or forced to
undergo pain and suffering because of "unwarranted
medical support." "The right of a dying man to die
with dignity when life is ebbing out and in the case
of a terminally ill patient or a person in permanent
vegetative state, where there is no hope of recovery ,
accelerating the process of death for reducing the
period of suffering constitutes a right to live with
dignity," Chief Justice Misra held in his opinion,
shared by Justice A.M. Khanwilkar. In his separate
opinion, Justice D.Y. Chandrachud observed that "to
deprive a person of dignity at the end of life is to
deprive him of a meaningful existence." "Meaningful
existence" includes a person's right to self-
determination and autonomy to decide his medical
treatment, the court held. Justice Ashok Bhushan
agreed that right to a dignified life includes a
"dignified procedure of death." Justice A.K. Sikri, in
his separate opinion, said though religion, morality,
philosophy, law and society have conflicting
opinions about whether right to life includes the
right to die, they all agree that a person should die
with dignity. The court described the exact stage at
which suffering robs a dying person of his dignity.
"A state where the treating physicians and the family
members know fully well that the treatment is
administered only to procrastinate the continuum of
breath and the patient is not even aware that he is
breathing," Chief Justice Misra wrote. Justice
Chandrachud said modern medical science should
balance its quest to prolong life with the task of
ensuring "quality of life." One is meaningless without
the other, he added. The court distinguished passive
euthanasia from suicide and active euthanasia. It
called passive euthanasia as a "mere acceleration of
the inevitable conclusion." Active euthanasia, the
court concluded, is unlawful. Suicide involves "overt
acts" which culminates in an unnatural death. A valid
'Living Will' facilitates passive euthanasia. A failure
to legally recognise an advance medical directive
May 2018 I 241
FLASH POINTS
inconveniences the "right to smoothen the dying
process", the court reasoned. In cases of terminally
ill or permanently vegetative state patients, where
there is no hope for revival, priority should be given
to the Living Wills and the right of self-
determination. The court referred to how societal
pressure and fear of criminal liability by relatives and
medical doctors had led to suffering and undignified
deaths. Relatives also fear being accused of
prematurely letting loved ones die. Doctors dikther,
apprehending criminal liability and of being sucked
into a "vortex" of litigation, it said. Chief Justice Misra
said this judgement "clears the maze." By removing
the social stigma against passive euthanasia and
legalizing it, the court has put humaneness on a high
pedestal, he observed. The verdict includes specific
guidelines to test the validity of a Living Will-by
whom it should be certified, when and how it should
come into effect. The guidelines also cover a
situation where there is no Living Will. These
guidelines would stand fast till a legislation on
passive euthanasia and Living Wills is passed. The
Bench said the "sancity of life", a meaningful
existence and the pursuit of happiness include the
exercise of free will. "Free will includes the right of a
person to refuse medical treatment," he wrote. The
Constitution Bench dismissed an earlier view by a
two-judge Bench of the Supreme Court in the Aruna
Shanbaug case that passive euthanasia can be
legalized only through a parliamentary statute. Chief
Justice Misra held that a dying man's choice to end
his life is a fundamental right, and more so, his
"natural human right." He does not require a
legislation to exercise this right.
THE RICH ENCOMIUM P AID T O
COURT
"God always has something for you", begins a note
handed over by a relieved 10-year-old boy to a
Supreme Court Bench led by Justices Kurian Joseph
242 I May 2018
and Mohan Shantanagoudar. A smile flitted across
Justice Kurian's face as he received the note from the
boy in open court. The note was an expression of
gratitude from the child to the court for ending a bitter
divorce battle between his parents. The couple finally
decided to end their differences on an amicable note
and withdraw 23 cases they had filed against each
other after they separated in 2011. Caught in between
were the traumatised children, the boy and his sister
- their love for their parents split. The court
reciprocated by scanning the boy's note and making
it part of the judgment. The Bench dissolved the
marriage by recording a decree of "divorce by mutual
consent". Justice Kurian reached out to the child by
writing in his judgment that the note is "the rich
encomium paid to the court". "The little one present
in court is exuberantly happy and sought liberty to
present a handmade card expressing his joy on the
settlement of all the disputes and litigations between
his mother and father," Justice Kurian said. The court
tried to fathom the anguish the child must have felt
over the years, and his joy that the acrimony between
his parents is over. The court has made the child's
note a proof of how every court has "a duty to make
an endeavour to assist and persuade the parties in
arriving at a settlement in a speedy manner to
prevent sporadic litigations," Justice Kurian said.
CBSE SCHOOLS CASE SC IMPOSES
FINE
An annoyed Supreme Court restrained the Kerala
government from implementing certain guidelines,
which include enrolment of CBSE students for
Aadhaar, while ordering the State to cough up Rs. 1
lakh for chronically seeking adjournments to file an
affidavit. The court had asked the State to file an
affidavit explaining its reason for issuing a
notification in 2011 which required CBSE schools to
enrol students for Aadhaar, teach Malayalam and
have three acres of land as necessary pre-conditions
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to get a no-objection certificate. The Bench ordered
the money to be deposited with the Supreme Court
Legal Services Committee in a week. The money
would be utilised by the committee in juvenile justice
issues. The court restrained the State government
from taking any "precipitate action" against CBSE
school managements before it hears the matter in two
weeks. The Kerala government's affidavit would be
taken on record only if it produces proof of payment
of the money, the court recorded in its order. The
Kerala CBSE School Managements Association,
represented by Sajith P. Warrier, challenged the 2011
State notification, arguing in the apex court that the
demand for CBSE schools in the State is on the
increase and the same is evident from the number of
schools being set up in small towns and even village
areas in Kerala. The association blamed the State for
"discouraging establishment of CBSE schools." Mr.
Warrier argued that the "appropriate government" for
the CBSE schools is the Centre and the State cannot
impose conditions for affiliation in the name of the
Right to Education Act. The State had justified the
notification under the RTE Act.
PLEA ON LAWMAKER-LAWYERS
The Supreme Court admitted a PIL petition to ban
MPs and MLAs from doubling up as lawyers. The
writ petition filed by Supreme Court advocate
Ashwini Kumar Upadhyay said legislators donning
the lawyers' robes was a "matter of serious concern
to both the judiciary and the legislature". "They also
utilise their position as MPs/MLAs to be visible in
the public domain, including on television where they
give interviews or participate in shows. This
essentially amounts to advertising, as their 'brand' is
promoted among the public, many of whom are
potential litigants. This virtually seamless transition
between the two spheres by these legislators is
causing irreversible harm to both the profession and
public interest," the petition said. The petition said
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FLASH POINTS
the practice was in violation of Rule 49 of the Bar
Council of India Act, which forbade an advocate to
be "full-time salaried employee of any person,
government, firm, corporation or concern, so long as
he continues to practice". The lawmakers draw their
salaries and pensions from the exchequer . The
petition was filed by Mr. Upadhyay, represented by
V. Shekhar, after his plea before the BCI was stalled.
Mr. Upadhyay has contended that MPs and MLAs
drew their salaries from the Consolidated Fund of
India, and hence were "employees of the State".
Under Section 21 of the Indian Penal Code and
Section 2(c) of the Prevention of Corruption Act,
MLAs and MPs were public servants. Hence,
allowing them to practice as an advocate and
restricting other public servants was arbitrary ,
irrational and violation of Articles 14-15 of the
Constitution, Mr . Upadhyay said. He said it
amounted to "professional misconduct" that MLAs
and MPs who got salary and other benefits from the
public fund, appeared against the government.
OVERSEAS LAWYERS CAN FLY IN,
FLY OUT FOR GIVING ADVICE
Keeping India's legal market exclusively for Indians,
the Supreme Court ruled that foreign law firms or
foreign lawyers cannot practise law in the country
either on the litigation or non-litigation side. This
means overseas lawyers or firms cannot open offices
in the country , appear in courts or before any
authority or render other legal services, such as
giving opinions or drafting documents. Upholding
similar verdicts of the Bombay and Madras High
Courts, a Bench of Supreme Court, however , said
there was no bar on foreign law firms or foreign
lawyers visiting India for a temporary period on a "fly
in and fly out" basis for giving legal advice to their
clients on foreign law or their own system of law and
on international legal issues. "W e hold that the
expression 'fly in and fly out' will only cover a casual
May 2018 I 243
FLASH POINTS
visit not amounting to 'practice'," the Bench said,
adding that any dispute in this issue would be
decided by the Bar Council of India. The ruling
settles a long-standing argument on whether foreign
firms or attorneys should be allowed to enter the
Indian legal market. The court also ruled that foreign
law firms and lawyers did not have an "absolute
right" to conduct arbitration proceedings and
disputes arising out of contracts relating to
international commercial arbitration. Though they
might not be debarred from conducting arbitration in
India arising out of international commercial
arbitration, they would be governed by the code of
conduct applicable to the legal profession in India.
The court said Business Process Outsourcing (BPO)
companies providing a range of services to
customers like word processing, secretarial support,
transcription and proof reading services, travel desk
support services and others would not come under
the Advocates Act. The ruling settles a long-
standing argument on whether foreign firms or
attorneys should be allowed to enter the Indian legal
market. Sections of the legal fraternity have been
opposing their entry , contending that Indian
advocates are not allowed to practise in the U.K., the
U.S., Australia and other nations, except on fulfilling
onerous restrictions like qualifying tests, experience
and work permit. It was also argued that foreign
lawyers cannot be allowed to practise in India without
reciprocity. The closely watched case saw 32 law firms
from various countries participating. They had argued
that there was no bar on a company carrying on
consultancy or support services.
ACTIVISTS CAN'T INTERVENE IN
AYODHYA CASE, RULES SC
The Supreme Court dashed the hopes of activists like
Shyam Benegal and Teesta Setalvad to intervene in
the sensitive Babri Masjid-Ram Temple land dispute
case, making it clear that only the parties to the
244 I May 2018
original lawsuits would be allowed to put forth their
arguments. A special Bench also said it would first
decide whether the land dispute appeals be sent to
a five-judge Constitution Bench as was sought by
lead petitioner M. Siddiq (since deceased), who is
represented by legal heirs in the case. "Counsel for
appellants as well as the respondents in all the
appeals have raised objections for such intervention/
impleadment/ filing additional documents/seeking
permission to render assistance. We are of considered
opinion that these interlocutory applications do not
merit any consideration and they are accordingly
rejected," the Bench, comprising Justices Ashok
Bhushan and S.A. Nazeer, said. The Bench went a
step further and directed its Registry "not to
entertain any interlocutory applications for
intervention or impleadment." It, however, said the
parties could file additional papers. It accepted the
vehement contention of both the parties, Hindu and
Muslim organisations and individuals, that only
original parties to the dispute be allowed to argue.
Besides Mr. Benegal and Ms. Setalvad, eminent
persons like Aparna Sen and Anil Dharker wanted to
intervene for using the disputed 2.77 acre disputed
land for some 'secular' purposes. The intervention
plea of BJP leader Subramanian Swamy, at whose
instance the cases were fast-tracked by the apex
court, was also rejected. The Bench, however ,
considered Dr. Swamy's submission that he had not
sought to intervene in the matter but filed a separate
writ petition seeking enforcement of his fundamental
right to worship at the birth place of Lord Ram in
Ayodhya. "I had filed a writ petition saying that I
have a fundamental right to worship and this is a
superior right than property right," Dr. Swamy said.
"As we are not inclined to permit the intervention
application, the writ petition filed by the applicant
[Dr. Swamy] shall stand revived and it shall be dealt
with by the appropriate Bench in accordance with
law," the Bench said.
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 FLASH POINTS
DEMONSTRATIONS NOT COVERED nation and is entitled to prevent the citizens, not in
UNDER FUNDAMENTAL RIGHTS sympathy with its viewpoint, from exercising their
fundamental rights or from performing their duties for
Public demonstrations resorting to violence,
their own benefit or for the benefit of the State or
including stone-throwing, are not protected by the
the nation," Justice Bhushan reproduced the verdict
fundamental right to free speech and expression, the
of the High Court given almost 20 years ago.
Supreme Court has held. The Bench observed that
the reason for the demonstration might be genuine,
but this did not give agitators the licence to resort SC FOUND RS. 28000 CRORE MEANT
to violence, destroying property and, at times, lives FOR CONSTRUCTION WORKERS
of citizens. The judgment came on a plea by Gorkha LIES STAGNANT
Janmukti Morcha (GJM) leader Bimal Gurung for
For millions of construction workers, mostly women
protection against arrest in several cases filed against
and children, there is no social or economic justice
him by the West Bengal government for violent
to be given, the Supreme Court lamented in a
unrest in the Darjeeling Hills. Justice Bhushan, who
judgement. The apex court found that Rs. 28,000 crore
wrote the judgment, observed that the Constitution
meant for the welfare of construction workers lies
only protects the right to assemble peacefully .
stagnant in state coffers. This is mainly because
"Demonstrations, whether political, religious or social
successive governments have failed to make use of
or other demonstrations, which create public
the money for the health, safety or service conditions
disturbances or operate as nuisances or create or
of unnamed and unsung construction workers, who,
manifestly threaten some tangible public or private
the Supreme Court said, play a great role in "nation-
mischief are not covered by protection under Article
building". The judgment said the "total lack of
19(1) (free speech)," the court held. A demonstration
concern and apathy on the part of the powers that
was meant to convey a feeling of disillusionment to
be in doing anything substantial for the benefit of
those in authority. But it might take different forms,
construction workers puts a Shakespearean tragedy
it said. "A demonstration may take various forms, it
to shame". It said that the State governments have
may be noisy and disorderly. For instance, stone-
been collecting welfare funds for construction
throwing by a crowd may be cited as an example of
workers since the Parliament passed the Building and
a violent and disorderly demonstration which is
Other Construction Workers (Regulation of
obviously not protected by either the fundamental
Employment and Conditions of Service) Act and the
right to free speech and expression or the
Building and Other Construction Workers Welfare
fundamental right to assembly peacefully," the court
Cess Act', both in 1996. A total of Rs. 37,400 crore
held. Likewise, it held that the right to free speech
was collected for the benefit of construction workers
includes the right to speak in public, but this too
over 22 years. Only Rs. 9,500 crore was utilised for
should not be used to incite violence. The court
their benefit. "What is being done with the remaining
referred to the Kerala High Court's judgment on
about Rs. 28,000 crore? Why is it that construction
'bandhs' to evoke the judicial objections against
workers across the country are being denied the
methods used by particular groups or parties or sects
benefit of this enormous amount?" the Supreme Court
to paralyse the entire citizenry. "No political party or
asked, and itself responded that the "answers blow
organisation can claim that it is entitled to paralyse
in the wind". The court recorded that government
the industry and commerce in the entire State or
estimates show there are over 4.5 crore building and

www.lawteller.com May 2018 I 245

FLASH POINTS
construction workers in the country. As of now, 2.8
crore workers have been registered under the 1996
laws for welfare. But there is no source for these
statistics and the court dismissed these figures as
mere "guesstimates". It pointed out that even if the
government wanted to do good now by distributing
the funds, it cannot as "some of these construction
workers from the 1990s, and even later, may perhaps
have unfortunately passed away or might be
untraceable". Hoping that "someone, somewhere, at
some point" would understand the gravity of the
situation, the Supreme Court issued a slew of
guidelines, including identity cards for construction
workers, the provision of maternity benefits and
minimum wages, and even bringing them under the
Mahatma Gandhi National Rural Employment
Guarantee Act (MGNREGA).
'FACE ID' FROM JUL Y 1 FOR
AADHAAR AUTHENTICATION
The Unique Identification Authority of India (UIDAI)
informed the Supreme Court that it will introduce
'Face ID' on July 1 to enable Aadhaar holders to
authenticate their identity to access services, benefits
and subsidies. The 'Face ID' would help people
without biometrics or those with poor biometrics to
avoid authentication failures and financial exclusion.
The court has repeatedly been referring to how
biometric authentication failures had deprived
citizens of their rightful entitlements like pension and
provident fund. It has highlighted that people with
physical disabilities and the mentally challenged may
face the danger of financial exclusion. In a
presentation to the Supreme Court, UIDAI CEO Ajay
Bhushan Pandey showed photographs of persons
afflicted with leprosy, senior citizens with poor
biometrics and those with physical disabilities
accessing benefits through Aadhaar. He said a
complete exemption from biometric authentication
was provided to persons afflicted with leprosy and
246 I May 2018
those whose biometrics were non-existent due to
disability or other reasons. Mr . Pandey drew the
court's attention to Regulation 4 of the Aadhaar
(Authentication) Regulations of 2016, which detailed
the various modes of authentication. One was
verifying demographic details of the Aadhaar holder
like name, gender and date of birth. The Aadhaar
number and demographic information of the Aadhaar
number holder was matched with the demographic
data in the CIDR (Central Identities Data Repository).
Secondly, there was the One Time Pin (OTP) based
authentication with limited time validity. The PIN was
sent to the registered mobile number and/or e-mail
address of the Aadhaar number holder. Then there
was the multi-factor authentication, which was a
combination of two or more of the modes - biometric
or OTP or demographic - for authentication. The
Regulation allows individuals the right to choose a
suitable mode(s) of authentication for a particular
service or business function to enhance security .
However, for the avoidance of doubt, e-KYC
authentication should only be carried out using OTP
and/or biometric authentication.
CHOICE OF CONSENTING ADULTS
TO LOVE AND MARRY UPHELD
Coming down heavily on crimes committed in the
name of honour, the Supreme Court upheld the choice
of consenting adults to love and marry as a part of
their fundamental rights. The apex court said,
"Honour killing guillotines individual liberty, freedom
of choice and one's own perception of choice." It
issued a set of guidelines for authorities to safeguard
young couples under threat for marrying outside their
caste or religion. It ridiculed the "elevated sense of
honour" of elders, the collective and khap panchayats
who rain horror on couples for choosing to marry
outside their caste, clan or religion. It termed the
elders, presiding over murder in broad daylight, as
"patriarchal monarchs" who believe they are the
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descendants of Caesar or Louis XIV . The court
compared honour killing to some of the harsh
punishments prescribed in the Code of Hammurabi
dating back to 1750 BC. "The human rights of a
daughter, brother, sister or son are not mortgaged to
the so-called or so-understood honour of the family
or clan or the collective... The act of honour killing
puts the rule of law in a catastrophic crisis," Chief
Justice of India Dipak Misra observed while leading
a three-judge Bench. The judgment came on a
petition filed by NGO Shakti Vahini to curb honour
crimes. The court held that the consent of the family,
community or clan is not necessary. In a strongly
worded condemnation of khap panchayats, which
gang up against young couples to force their
presence and dictate punishments, Chief Justice
Misra said khaps feel their duty is sanctified and their
action of punishing the hapless victims is inviolable.
Women are treated by the khaps as servile persons
who have no desire for autonomy. Their families are
either silent spectators or active participants in their
torture. "Masculine dominance becomes the sole
governing factor of perceptive honour ." These
"feudalistic" entities have no compunction in
committing crimes. The police turn a blind eye and
the administration hardly questions them. To
highlight the terror inflicted on women, the Supreme
Court gave a list of actions which trigger honour-
based crimes. They include loss of virginity outside
marriage; unapproved relationships; refusing an
arranged marriage; asking for divorce; demanding
custody of children after divorce; causing scandal
or gossip in the community; and even "falling victim
to rape."
GIVE SOCIAL SERVICE DUTIES TO
THOSE SENTENCED TO 6 MONTHS
OR 1 YEAR
Criminals sentenced to imprisonment for six months
or a year should be allocated social service duties
www.lawteller.com
FLASH POINTS
rather than be put in already overflowing prisons, the
Supreme Court advised the government. The
suggestion came from Justice Deepak Gupta, who is
part of a Bench after the court's amicus curiae Gaurav
Agrawal submitted that 240 jails across the country
are housing inmates 150% above their normal
capacity. Worse is the prison staff-prisoner ratio. Of
about 77,000 sanctioned posts, 24500 lie vacant. Mr .
Agrawal said Tamil Nadu and U.P. are some of the
worst cases in prison staff-inmate ratio. Only about
5,000 prison staff monitors over 92,000 inmates in
Uttar Pradesh. Tamil Nadu has about 4,000 prison
staffers to monitor 13,000 prisoners. Mr. Agrawal said
there are 18 jails exclusively for women. Plus there
are separate areas for women in other jails, but there
is complete disproportionality as far as space for
women inmates are concerned. He said these jails
were not modelled to house women inmates,
especially those with minor children staying with
them. The court also observed about the plight of
undertrial prisoners who languish behind bars. "Sixty
percent of those arrested need not be actually
arrested. The police say there is no need for arrest,
but they still do. Again, half of those arrested, need
not be remanded, but they are still remanded,"
Justice Lokur pointed out. The top court is hearing
a matter relating to inhuman conditions prevailing in
1,382 prisons across the country. On September 15
last year, a Supreme Court judgment had encouraged
the need for open prisons. It had urged for steps like
the appointment of counsellors and support persons
for prisoners, particularly first-time offenders. The
apex court had suggested steps like more family visits
for prisoners and use of phones and video-
conferencing not only between a prisoner and family,
but also his lawyers. It had directed the State Legal
Services Authorities (SLSAs) to conduct a study and
performance audit of prisons. It wanted the
government to constitute a Board of Visitors to
initiate prison reforms.
May 2018 I 247
FLASH POINTS
STEPS NEEDED TO IMPROVE right to speedy justice, the Supreme Court has
COLLEGIUM SYSTEM, SAYS SC observed. In a significant judgment shutting the
doors on the practice of criminals getting unlimited
Urgent measures are required to improve the
stay orders from the higher courts in their ongoing
collegium system of appointment of judges,
trial for one reason or the other , the Supreme Court
including the setting up of an independent
held that any stay of a criminal or corruption trial,
secretariat, the Supreme Court highlighted in a
or even a civil case, will be valid only for six
judgment. The apex court said "corrective measures"
months. Trials cannot be held up for indeterminate
need to be taken against "post-appointment conduct
periods just because a High Court has granted stay .
or inadequate performance or failure to uphold
"Proceedings are adjourned sine die on account of
righteous conduct" by sitting judges. The Bench
stay. Even after the stay is vacated, intimation is not
said the improvements contemplated by the five-
received and proceedings are not taken up," the
judge NJAC Bench, in December 2015, in the
Bench observed. The order to stay trial will be
collegium system had not "seen the light of the day ."
extended after six months only in "exceptional
The court ordered that the Centre should ensure that
cases" and that too in a judicial order which fully
the new Memorandum of Procedure brings about the
explains the reasons for the extension. "W e consider
improvements recommended by the NJAC Bench.
it appropriate to direct that in all pending cases
The apex court highlighted how various High Courts
where stay against proceedings of a civil or criminal
remained without permanent Chief Justices. The Law
trial is operating, the same will come to an end on
Ministry website shows that seven High Courts have
expiry of six months from today , unless in an
been making do with Acting Chief Justices for months
exceptional case by a speaking order such stay is
on end. Justice Goel, who authored the verdict, said
extended. Such extension is valid only for another
Acting Chief Justices were meant only as a temporary
six months. The "speaking order" extending the
measurebefore a permanent Chief Justice is
period of stay should explain why "the stay was
appointed. The judgment points out how High Court
more important than having the trial finalised." Even
Chief Justices are appointed for a few days before
if a stay is granted for six months, the trial court
they retire, serving no purpose to the cause of justice
should react by fixing a date for the trial to
delivery. The court stressed the need for a "full-
commence immediately after the expiry of the stay .
time"and independent body of experts to help in the
Trial proceedings will, by default, begin after the
appointment process. "A full-time body consistent
period of stay is over . "It is well accepted that delay
with independence of judiciary appears to be
in a criminal trial, particularly in the Prevention of
immediate need for the system. Absence thereof
Corruption Act cases, has a deleterious ef fect on
contributes to denial of justice," the judgment
the administration of justice, in which the society
observed.
has a vital interest. Delay in trials affects the faith
in Rule of Law and efficacy of the legal system. It
STAY ON TRIAL WILL BE VALID ONLY affects social welfare and development...The power
FOR SIX MONTHS: SC to grant stay is coupled with accountability ,"
An indefinite freeze on corruption and criminal trials Justice Goel wrote in the judgment.
granted by constitutional courts, especially High
Courts in the cases of the rich and powerful, have ooooooo
often led to delay and denial of the fundamental

248 I May 2018 www.lawteller.com

 CRIMINAL LAWS

GOVT. IS REQUIRED TO SEE, WHETHER THERE

EXIST SUFFICIENT GROUND TO PROCEED,
BEFORE SUMMONING

P RABHU DUTT TIWARI-THE APPELLANT IS

AGGRIEVED SINCE AN order summoning the
respondents was quashed by the High Court as per
the impugned order. The summoning order issued
by the Additional Chief Judicial Magistrate, Court-
19, Deoria reads as follows:
of the self and the two other witnesses has
been recorded under section 202 Cr . P. C.
and a photocopy of the application
submitted to the Superintendent of Police
has been produced as documentary
evidence.

"Complainant appeared along with the On perusal of the documents available on

Counsel on being called. Arguments heard record a case appears to be prima facie
and record perused. made out against the accused Narendra
Mishra, Awadhesh Mishra, Pushpa Devi
Complainant has stated that he is working
Ashutosh Tiwari and Mahima Tiwari under
in telecommunication department Varanasi
sections 419, 420, 468, 471 and 120B IPC.
and that they are three brothers and their
The matter is fit for summoning the accused
father distributed the village land among
for trial.
them and all of them cultivate their land.
The accused number-3 Pushpa Devi filed a ORDER
case against accused number-5 Mahima, in
The accused Narendra Mishra, Awadhesh
collusion with the accused number 1, 2 and
Mishra, Pushpa Devi, Ashutosh Tiwari and
4 and he was taken to their village Nautan
Mahima Tiwari are hereby summoned under
Bihar by threatening him where he was
sections 419, 420, 468, 471 and 120B IPC.
tortured in many different ways and they
The Complainant to comply within a week.
got the registered deed for the land khasra
List for attendance as above on 20.12.2012."
number 377 and 1 191 forcibly. The mental
condition of accused number-5 is not The respondents challenged the order in a criminal
stable and he remains disturbed and taking writ petition before the High Court. The
advantage of the same and all the accused consideration of the High Court reads as follows:
by colluding themselves, in order to cause
"I have given my anxious judicial thoughts
damage to him and his brother Manoj got
over the entire facts and circumstances of
a false and fabricated registered deed made
the case. Considering the fact that the
on 3.10.2012 by producing false papers.
bhumidhari right of Mahima Tiwari has
Police station was informed and since no
never been challenged in the criminal
action was taken by them, this case has
complaint or in the evidence led in support
been filed in this court.
of the allegations made therein and there
In support of the statement, the testimony is no allegation or evidence on record that

www.lawteller.com May 2018 I 249

CRIMINAL LAWS
the sale property was ancestral property or
the complainant had any right by birth
therein, Mahima Tiwari (accused no.5) was
fully entitled to transfer his land in favour
of Pushpa Devi and if he has executed the
sale deed in question in her favour , neither
he nor Pushpa Devi nor any other person
can be held liable for criminal offence
punishable under Sections 419, 420, 468,
471, 120-B of I.P.C. The court of learned
Magistrate and learned revisional court are
not supposed to shut their eyes to the
transferable right of a Bhumidhar . They are
not bound in all the circumstances to take
it for granted that if the oral evidence under
Sections 200 and 202 Cr.P.C. has been led
in support of the allegations made in the
criminal complaint, their hands are fettered
upto the extent that except issuing the
process under Section 204 Cr .P.C. they
would not pass any other order including
the order of dismissal of the criminal
complaint, if at all it appears to the
Magistrate that accused have not
committed any criminal offence. If there is
any grievance to the complainant he is well
within his right to agitate the matter before
the civil court in a suit for cancellation of
the sale deed. The criminal jurisdiction of
the court cannot be invoked to settle the
dispute purely of civil nature."
Against the order passed by the High Court special
leave petition was filed. The Supreme Court
accepted the appeal, the impugned order was set
aside.
The operative part of the judgment reads as under:-
At the stage of summoning the accused on the basis
of a private complaint, all that is required is a
satisfaction by the Magistrate that there is sufficient
250 I May 2018
ground to proceed against the accused in the light of
the records made available and the evidence adduced
by the complainant.
TTTTTTT
Having gone through the order passed by the
Magistrate, it is fairly clear that there has been the
required satisfaction. The discussion by the High
Court would give an indication that the Magistrate
had to appreciate the evidence and then enter a
finding as to whether the accused are guilty or not.
At the stage of summoning, as already stated above,
the satisfaction required for the Magistrate is only to
see whether there is sufficient ground to proceed
against the accused.
TTTTTTT
Such a satisfaction for summoning an accused having
been made out, the High Court went wrong in
interfering with the summoning order. It was too early
for the High Court to enter a finding otherwise. The
impugned order is, hence, set aside. The appeal is
allowed.
TTTTTTT
The party-respondents may appear before the trial
court within a period of one month from today. On
their appearance before the trial court, they shall be
released on bail on furnishing sufficient surety/
sureties to the satisfaction of the trial court. We make
it clear that we have not expressed any opinion on
the merits of the case and it is open to the parties to
take all available steps at the appropriate stage.
TTTTTTT
Reference : Supreme Court. Prabhu Dutt Tiwari v. The
State of Uttar Pradesh & Ors., criminal appeal no. 2113
of 2017 [@ Special Leave Petition (Crl.) Nos. 10733 of
2015].
—————
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COMPENSATION FOR FRUIT TREES ON
ACQUIRED LAND
L AND OF THE RESPONDENT WAS ACQUIRED
ALONG WITH TREES standing on it for
construction of Hydel Channel. A notification under
Section 4 of the Land Acquisition Act, 1894
(hereinafter referred to as 'the Act') was issued on
12.01.1990 and the declaration under Section 6 of the
Act was made on 28.02.1990. The Land Acquisition
Collector passed the supplementary award awarding
compensation of the fruit trees standing on the
acquired land on 10.03.1993. Reference Court had
rejected the reference sought by the respondent
holding that the award made by the Land Acquisition
Collector was proper and correct. The respondent
approached the High Court of Punjab & Haryana by
filing the appeal which came to be allowed by the
impugned judgment and reference was accepted
awarding compensation to the tune of Rs. 5,77,377/-
for the standing trees on the acquired land along with
other statutory benefits as per Sections 23(1-A), 23(2)
and 28 of the Act.
Against the judgement of the High Court special leave
petition was filed by the State. The Supreme Court
accepted the appeal, set aside the impugned order and
the matter was remitted to the High Court for fresh
disposal in accordance with law.
The operative part of the judgment reads as under:-
The expert examined by the respondent (AW-2) has
admitted that there was a tank for storing water and
Judge: A law student who marks his own examination
papers.
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LAND ACQUISITION
buckets were lying. Meaning thereby the respondent
was allegedly watering the fruit trees by pouring
water with the help of buckets. There was no perennial
source of water. In that regard the reference court
concluded that the irrigation facility was scanty. AW-
2 has further deposed that there could be 90 fruit trees
in one killa (equal to one acre). If, only 90 fruits trees
can be planted in one killa (one acre), we are at a
loss to understand as to how there could be 250 trees
or 396 trees in 7 kanals and 2 marlas of land (less
than one acre) that too of B category as is sought to
be contended by the respondent.
TTTTTTT
In view of the above, it is clear that the High Court
has over looked certain material aspects of the
evidence before coming to the conclusion. The High
Court needs to consider the entire material in proper
perspective afresh. Hence, the matter is to be remitted
to the High Court of Punjab & Haryana for fresh
disposal in accor dance with law . Ordered
accordingly, the matter is remitted to the High Court.
The impugned judgment is set aside. Appeal stands
disposed off accordingly.
TTTTTTT
Reference : Supreme Court. State of Punjab and Ors.
v. Thuru Ram, civil appeal no. 488 of 2018 [arising out
of SLP (Civil) No. 2223 of 2017].
—————
—H.L. MENCKEN
May 2018 I 251
MOTOR ACCIDENT
MULTIPLIER OF 17APPLIED FOR COMPUTING
COMPENSATION IN THE CASE OF 20YEARS OLD DECEASED

A N ACCIDENT TOOK PLACE ON 15 NOVEMBER

2008 WHEN AT about 9 p.m. Sonu Kumar Goyal
was proceeding on a motor cycle from Mandi Neem
Ka Thana to his home. A truck bearing Registration
No.RJ-32-GA-0398 dashed against the motor cycle as
a result of which Sonu Kumar sustained grievous
injuries and died on the spot. The third respondent is
the registered owner of the motor vehicle which was
insured with the first respondent. The appellants filed
a claim for compensation before the Tribunal. By its
order dated 16 July 2013 the Tribunal held that the
accident was caused due to the negligence of the
driver of the truck. The insurer was held jointly and
severally liable together with the owner and driver.
While assessing the claim of compensation, the
Tribunal noted that the deceased was a bachelor, aged
20 years. On the income of the deceased, the Tribunal
did not accept the certificates for the months of
August, September and October 2008 produced by the
first appellant who is the father of the deceased in
support of the case that the deceased had a monthly
earning of Rs. 15,000/-. The Tribunal indicated that the
certificates have not been duly proved. The deceased
was pursuing the professional Chartered
Accountancy course. The Tribunal adopted an income
of Rs.6,000/- per month and since the deceased was a
bachelor, it deducted a sum of Rs 3,000/- per month
towards personal expenses. A multiplier of 11 was
applied on the basis of the age of the parents of the
deceased. Accordingly, the loss of dependency was
computed at Rs 3,96,000/- and after addition of
conventional heads, a total compensation of
Rs.4,31,000/- was awarded.
The appellants as well as the insurer filed the appeals
before the High Court. By its judgment dated 30 May
2016 the High Court has declined to interfere with the
award of the Tribunal.
Against the judgement of the High Court special leave
petition was filed. The Supreme Court accepted the
appeals. The appellants were allowed interest @7.5%
p.a. from the date of the filing of the petition before
the M.A.C.T. till realization.
The operative part of the judgment reads as under:-
However, we find merit in the submission which has
been urged on behalf of the appellants that the
Tribunal failed to apply the correct multiplier and
erred in not granting the benefit of future prospects
in computing the income of the deceased and the loss
of dependency. Having due regard to the judgment
delivered by the Constitution Bench of this Court in
National Insurance Company Limited v. Pranay Sethi
[AIR 2017 SC 5157] and in Sarla Verma v. Delhi
Transport Corporation [2009 (6) SCC 121] the
correct multiplier should be 17 having regard to the
age of the deceased. An addition of 40 per cent
towards future prospects would also be warranted in
terms of the judgment of the Constitution Bench. On
this basis and since the deceased was a bachelor, the
loss of dependency would work out to Rs 8,56,800/-.
The appellants would be entitled to an amount of Rs
15,000/- towards loss of estate and Rs 15,000/-
towards funeral expenses. The award of compensation
accordingly stands quantified at Rs 8,86,800/-. The
appellants are allowed interest @7.5% p.a. from the
date of the filing of the petition before the M.A.C.T.
till realization.
TTTTTTT
Reference : Supreme Court. Shri Nagar Mal and Ors.
v. The Oriental Insurance Company Ltd. and Ors., civil
appeal no. 448 of 2018 [arising out of SLP (C) No. 26853
of 2016].
—————

252 I May 2018 www.lawteller.com


STATE HAS DUTY TO CREATE A SENSE
OF CONFIDENCE
T HIS WRIT PETITION IS PREFERRED BY A
PUBLIC SPIRITED person under Article 32 of the
Constitution of India praying for issue a Writ of
Mandamus directing the Government of India to
appoint an international agency with the technical
expertise to study and to adjudge the lifespan of
Mullaperiyar Dam and ascertain the date/period on
which the said dam must be de-commissioned;
appoint a High Powered Committee to suggest the
Supreme Court to declare a date/time period for de-
commissioning of Mullaperiyar Dam; direct the State
owning the dam, that is, Tamil Nadu to make financial
provisions for damages to life and restoration of
environment in the eventuality of a burst of
Mullaperiyar Dam before it is de-commissioned, and
pass any other order or direction as Supreme Court
may deem fit and proper to do so in the facts and
circumstances of the case.
The essential facts which need to be stated for
adjudication of this petition are that Mullaperiyar Dam
was constructed under a lease agreement executed in
the year 1886 between the Maharaja of erstwhile
Travancore with the British Secretary of State for
Madras Presidency for a duration of 999 years. In
pursuance of the said agreement, the dam was
constructed across river Periyar in crude lime surky
mortar at a time when dam engineering was in its
infancy. Periyar river originates from Sivagiri and
Western Ghats at an elevation of 2400 meters from the
sea level and joins Mullayar river downstream at an
elevation of 850 m. It is at this elevated junction, the
Mullaperiyar dam was built having a height of 53.6 m
(176 ft.) from the foundation and a length of 365.7 m
(1,200 ft) for catering to the irrigational needs of the
neighbouring State of Tamil Nadu under the said lease
agreement.
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CONSTITUTION
There is an assertion in the petition that the Chief
Engineer of the dam project, Mr. John Pennycuick
envisaged the lifetime of the dam for a period of 50
years. As 121 years have expired from the date of the
construction of the dam, the decommissioning of the
said dam has become essential and there is need for
assessment of the lifespan of the dam regard being
had to the safety of the citizens especially the persons
residing downstream of the river. There is reference
to the litigations filed between the State of Kerala and
State of Tamil Nadu for long period and more recently
in CS (OS) No. 3 of 2006 before Supreme Court which
was decided on 07.05.2014 in State of Tamil Nadu v.
State of Kerala and another [2014 (12) SCC 696]
whereby Supreme Court apart from issuing other
directions had appointed a Supervisory Committee to
take measures pertaining to the dam in emergent
situations.
It is contended in the petition that because of the
efflux of time and the safety of the dam being
doubtful, fear remains embedded among the people
who reside downstream of the Mullaperiyar dam. That
apart, the residents of the area in proximity do not feel
safe. In such a situation, as set forth, precautionary
steps are required to be taken to protect the life without
waiting for a disaster to happen in the form of a dam
burst which can be triggered due to multiple reasons.
According to the petitioner, due to the differences
between State of Kerala and State of Tamil Nadu over
the contractual rights over the 1886 lease agreement,
they have not taken any steps to mitigate the fear or
dispel the threat to life of many citizens who live in
the zone of immediate catastrophe. The petition has
highlighted a serious concern about the lifespan of the
dam. It is contended that if it is treated to be 999, it is
a speculation in the realm of impossibility which law
May 2018 I 253
CONSTITUTION
does not accept, and is completely averse to it.
It is urged that safety and security of the people and
that of the nation are of paramount importance and,
therefore, the respondents are obligated in law to have
concrete safeguards so that there is no irreversible
environmental consequences and the fear that affects
the bones and brains of the citizens gets vaporised.
By no stretch of imagination the lifespan of the dam
can be conceived to be 999 years which is the term of
the lease deed and there has to be decommissioning
of the dam to save the human life. Any kind of hazard
that affects the life cannot be allowed to remain. The
existence of the dam without necessary assessment
is a peril to the people residing in the affected locality
and it is also a continuous threat to the environment.
As the grievance raised by the petitioner pertains to
apprehended cataclysm and unforeseen calamity to
human life, it was directed that a copy of the petition
to be served on the Union of India.
The Supreme Court issued the following directions:
(i) The Central Government shall constitute
a separate Sub- Committee under Section 9
of the 2005 Act, to exclusively monitor the
measures for ensuring a high level of
preparedness to face any disaster, which is
unpredictable in relation to Mullaperiyar
Dam.
(ii) The State of Kerala as well as the State of
Tamil Nadu shall also constitute separate
Sub-Committees under Section 21 of the 2005
Act, to exclusively monitor the measures for
It took man thousands of years to put words down on paper
lawyers still wish he wouldn't.
254 I May 2018
ensuring a high level of preparedness to face
any disaster occurring from Mullaperiyar
Dam. They must provide for a separate
dispensation under the State plan as
envisaged under Section 23(4) of the 2005
Act.
(iii) The State of Tamil Nadu, which has been
directed to cooperate as per the decision in
State of Tamil Nadu (supra), shall also have
a Sub-Committee for disaster management
and with a specific plan.
(iv) Constitution of all sub-committees shall
be in addition to the existing Committees.All
the States shall work in harmony with the
Central Sub-Committee and ensure high level
preparedness to face any disaster occurring
due to Mullaperiyar Dam, so that life and
property are not damaged.
Supreme Court directed for constitution of exclusive
Sub- Committees for the disaster management for the
Mullaperiyar Dam does not anyway remotely suggest
that there is any doubt about the safety or life span
of the dam, as is alleged in the writ petition. The Court
had said so only keeping in view the consequences
of unpredictable disaster, which have astutely been
canvassed before the Supreme Court.
With the aforesaid directions and observations, the
writ petition is disposed of. There shall be no order
as to costs.
Reference : Supreme Court. Russel Joy v. Union of
India & Ors., Writ Petition (Civil) No. 878 of 2017.
—————
, and his
—MIGNON MCLAUGHLIN
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POST NOTIFICATION INSTANCES CANNOT BE
TAKEN INTO CONSIDERATION FOR DETERMINING
COMPENSATION OF LAND
H ARYANA STATE WARE HOUSING
CORPORATION (Respondent No.2) had
acquired 40 kanal and 8 marlas land at Rania for
construction of warehouse/godown vide Notification
dated 12.02.1988 issued under Section 4(1) of the Land
Acquisition Act, 1894 (for short 'the Act'); out of which
40 kanal 8 marlas land, 21 kanal 6 marlas land was of
the present appellants; Notification dated 21.02.1989
was issued under Section 6 of the Act. Vide award
No.9 dated 19.05.1990, the Land Acquisition Officer
awarded compensation of Rs.75,000/- per acre. Being
aggrieved by the award dated 19.05.1990, the
appellants/claimants filed a reference petition under
Section 18 of the Act before Additional District Judge,
Sirsa for enhancement of compensation, which came
to be dismissed by judgment dated 15.02.1993. Being
aggrieved by the dismissal of the claim for
enhancement, the appellants/claimants filed appeal
before the High Court in R.F.A.No.1519 of 1993. The
High Court relied upon the sale deed dated 26.05.1983
wherein small extent of land of 9 marlas was sold for
Rs.25,500/- as an exemplar. The High Court gave
escalation at 10% for the time gap of 56 months and
calculated the value at Rs.6,64,887/- per acre and made
the deduction at the rate of 67.5% for development
charges and calculated the compensation to be
awarded at Rs.2,19,413/- per acre.
Being aggrieved, the land owners filed Special Leave
Petition (C) No.27989 of 2013 before the Supreme Court
which was withdrawn by order dated 01.08.2014 with
liberty to file review before the High Court. In the
review petition, the appellants/claimants relied upon:-
(i) sale deed dated 27.12.1988; and (ii) subsequent
acquisition of nearby land vide notification dated
27.03.1989 in which the High Court by its judgment
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LAND ACQUISITION
dated 15.09.2006 in R.F.A. No.866 of 1996 awarded
compensation of Rs.7,26,000/- per acre. The High
Court dismissed the review, inter alia, holding that the
sale deed dated 27.12.1988 is a post notification sale
and also the acquisition vide notification dated
27.03.1989 was subsequent one and the same is not
relevant for determining the market value of the lands
acquired vide notification dated 12.02.1988. Moreover,
the High Court found no valid ground for review
under Order XLVII C.P.C.
Being aggrieved, the appellants/land owners filed
appeals before the Supreme Court. The Supreme Court
partially allowed the appeals. The appellants/claimants
were held entitled to get enhanced compensation of
Rs. 4,43,258/- payable with all statutory benefits.
The operative part of the judgment reads as under:-
In Haryana State Agricultural Market Board and Anr.
v. Krishan Kumar and Ors. [2011 (15) SCC 297], this
Court has held that "if the value of small developed
plots should be the basis, appropriate deductions will
have to be made therefrom towards the area to be used
for roads, drains, and common facilities like park,
open space, etc. Thereafter, further deduction will
have to be made towards the cost of development, that
is, the cost of leveling the land, cost of laying roads
and drains, and the cost of drawing electrical, water
and sewer lines."
TTTTTTT
Observing that the development charges for
development of particular plot of land could range
from 20% to 75%, in Lal Chand v. Union of India and
Another [2009 (15) SCC 769], in paras (13), (14)
and (20), this Court held as under:
May 2018 I 255
LAND ACQUISITION
"13. The percentage of 'deduction for
development' to be made to arrive at the market
value of large tracts of undeveloped
agricultural land (with potential for
development), with reference to the sale price
of small developed plots, varies between 20%
to 75% of the price of such developed plots, the
percentage depending upon the nature of
development of the layout in which the
exemplar plots are situated.
14. The 'deduction for development' consists
of two components. The first is with reference
to the area required to be utilised for
developmental works and the second is the cost
of the development works.
.….....
Therefore the deduction for the 'development
factor' to be made with reference to the price of
a small plot in a developed layout, to arrive at
the cost of undeveloped land, will be for more
than the deduction with reference to the price
of a small plot in an unauthorised private layout
or an industrial layout. It is also well known
that the development cost incurred by statutory
agencies is much higher than the cost incurred
by private developers, having regard to higher
overheads and expenditure."
TTTTTTT
In a catena of judgments, this Court has taken the
view to apply one-third deduction towards the
development charges. After referring to various
case laws on the question of deduction for
development, in Major General Kapil Mehra and
Ors. v. Union of India and Anr. [2015 (2) SCC 262],
this Court held as under:
"35. Reiterating the rule of one-third
deduction towards development, in Sabhia
Mohammed Yusuf Abdul Hamid Mulla v. Land
Acquisition Officer [2012 (7) SCC 595], this
256 I May 2018
Court in para 19 held as under:
"19. In fixing the market value of the acquired
land, which is undeveloped or
underdeveloped, the courts have generally
approved deduction of 1/3rd of the market
value towards development cost except when
no development is required to be made for
implementation of the public purpose for
which land is acquired. In Kasturi v. State of
Haryana [2003 (1) SCC 354] the Court held:
'7. … It is well settled that in respect of
agricultural land or undeveloped land which
has potential value for housing or
commercial purposes, normally 1/3rd
amount of compensation has to be deducted
out of the amount of compensation payable
on the acquired land subject to certain
variations depending on its nature, location,
extent of expenditure involved for
development and the area required for road
and other civic amenities to develop the land
so as to make the plots for residential or
commercial purposes. A land may be plain
or uneven, the soil of the land may be soft or
hard bearing on the foundation for the
purpose of making construction; maybe the
land is situated in the midst of a developed
area all around but that land may have a
hillock or may be low-lying or may be having
deep ditches. So the amount of expenses that
may be incurred in developing the area also
varies.....................There may be various
factual factors which may have to be taken
into consideration while applying the cut in
payment of compensation towards
developmental charges, maybe in some cases
it is more than 1/3rd and in some cases less
than 1/3rd. It must be remembered that there
is difference between a developed area and
an area having potential value, which is yet
www.lawteller.com

to be developed. The fact that an area is
developed or adjacent to a developed area
will not ipso facto make every land situated
in the area also developed to be valued as a
building site or plot, particularly when vast
tracts are acquired, as in this case, for
development purpose.'
The rule of 1/3rd deduction was reiterated
in Tejumal Bhojwani v. State of U.P. [2003
(10) SCC 525], V. Hanumantha Reddy v.
Land Acquisition Officer [2003 (12) SCC
642], H.P. Housing Board v. Bharat S. Negi
[2004 (2) SCC 184] and Kiran Tandon v.
Allahabad Development Authority [2004
(10) SCC 745]." (emphasis in original)
36. While determining the market value of
the acquired land, normally one-third
deduction i.e. 33 1/3% towards development
charges is allowed. One-third deduction
towards development was allowed in
Tehsildar (LA) v. A. Mangala Gowri [1991
(4) SCC 218], Gulzara Singh v . State of
Punjab [1993 (4) SCC 245], Santosh Kumari
v. State of Haryana [1996 (10) SCC 631],
Revenue Divl. Officer and LAO v. Sk. Azam
Saheb [2009 (4) SCC 395], A.P. Housing
Board v. K. Manohar Reddy [2010 (1 2) SCC
707], Ashrafi v. State of Haryana [2013 (5)
SCC 527] and Kashmir Singh v . State of
Haryana [2014 (2) SCC 165].
37. Depending on the nature and location of
the acquired land, extent of land required to
be set apart and expenses involved for
development, 30% to 50% deduction
towards development was allowed in
Haryana State Agricultural Market Board
v. Krishan Kumar [2011 (15) SCC 297],
Director, Land Acquisition v . Malla
Atchinaidu [2006 (12) SCC 87], Mummidi
Apparao v . Nagarjuna Fer tilizers &
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LAND ACQUISITION
Chemicals Ltd. [2009 (4) SCC 402] and Lal
Chand v. Union of India [2009 (1 5) SCC
769].
38. In few other cases, deduction of more than
50% was upheld. In the facts and
circumstances of the case in Basavva v. Land
Acquisition Officer [1996 (9) SCC 640], this
Court upheld the deduction of 65%. In Kanta
Devi v. State of Haryana [2008 (15) SCC
201], deduction of 60% towards
development charges was held to be legal.
This Court in Subh Ram v. State of Haryana
[2010 (1) SCC 444], held that deduction of
67% amount was not improper. Similarly, in
Chandrashekar v. Land Acquisition Officer
[2012 (1) SCC 390], deduction of 70% was
upheld."
TTTTTTT
In Subh Ram and Others v. State of Haryana and Anr.
[2010 (1) SCC 444], the deduction of 67% was held
to be not improper. In the case in hand, the High
Court applied deduction at 67.5% which in our
considered view is on the higher side. In the facts and
circumstances of the present case and considering
that the exemplar dated 26.05.1983 was for a small
extent of land and that the acquired land has to be
developed for construction of warehouse, we deem it
appropriate to apply one-third deduction and
deducting one-third that is Rs.2,21,629/- from
Rs.6,64,887/-, the compensation to be awarded is
arrived at Rs.4,43,258/- per acre.
TTTTTTT
Authorities relied upon : 2011 (15) SCC 297.
Reference : Supreme Court. Maya Devi (D) Through
Lrs & Ors. v. State of Haryana & Anr., civil appeal nos.
873-874 of 2018 [arising out of SLP (C) Nos. 30923-
30924 of 2016].
—————
May 2018 I 257
 LIGHTER SIDE OF LAW
LAW
Indian Justice System DID YOU KNOW?
The Buffalo was running mad.
Elephant asked—Why are u running? n Indiana, U.S.
Buffalo: They are arresting all cows. It is illegal to ride a horse in excess of ten
Elephant: But you are not a cow? miles per hour.
Buffalo: It will take at least 20 yrs to prove that in
an Indian court!
n Illinois, U.S.
*The Elephant started running!*
A man can force any single woman to
Marrying A Lawyer marry him if he discovers her picking her
A girl showed interest in only marrying a lawyer. nose while sitting in a car at traffic lights.
I asked the girl, "Why do you prefer a lawyer to
marry?" n Idaho
Idaho,, U.S.
She said, "They bow their head while entering the It is illegal for anyone over the age of
room and again while going out. They say 'your eighty-eight to ride a motorcycle.
honor' or 'my lord' before and after every word."
"They don't have any male ego; because, they wear Georgia, U.S.
n
a gown!"
Picnics are prohibited in graveyards.
"They go to a BAR where liquor is not served."
"More importantly, they never question the Disclaimer - Lawteller T eam is not responsible for the
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"What more does a wife require???"

Wife's Tombstone
A lawyer's wife dies. At the cemetery, people are
appalled to see that the tombstone reads, "Here lies
Phyllis, wife of Murray, L. L. D., Wills, Divorce,
Malpractice,"
Suddenly, Murray bursts into tears. His brother
says, "You should cry, pulling a stunt like this!"
Through his tears, Murray croaks, "You don't
understand! They left out the phone number!"

Documentation
A lawyer sent a text to his another lawyer friend
Lawyer 1: Hey Bro, need your advice. My girlfriend
is online and said "I love you". What should I do?
Lawyer 2: First of all take a screenshot, "A is for Anticipatory Bail..."
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