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Wednesday, November 15, 2017

Post Settlement - Guidelines for Quashing 482 CrPC

Parbatbhai Aahir v. State of Gujarat, 2017 SCC OnLine SC 1189, decided on 04.10.2017

 

http://www.scconline.com/DocumentLink/qZe7uF78

 

he Court summarised the elaborate principles laid down by the Supreme Court in various cases. Below is the summary of the principles:

  • The invocation of the jurisdiction of the High Court to quash a First Information Report or a criminal proceeding on the ground that a settlement has been arrived at between the offender and the victim is not the same as the invocation of jurisdiction for the purpose of compounding an offence. While compounding an offence, the power of the court is governed by the provisions of Section 320 of the Code of Criminal Procedure, 1973. Also, the power to quash under Section 482 is attracted even if the offence is non-compoundable.
  • In the exercise of the power under Section 482 and while dealing with a plea that the dispute has been settled, the High Court must have due regard to the nature and gravity of the offence. Heinous and serious offences involving mental depravity or offences such as murder, rape and dacoity cannot appropriately be quashed though the victim or the family of the victim have settled the dispute. Such offences are, truly speaking, not private in nature but have a serious impact upon society. The decision to continue with the trial in such cases is founded on the overriding element of public interest in punishing persons for serious offences.
  • As distinguished from serious offences, there may be criminal cases which have an overwhelming or predominant element of a civil dispute. They stand on a distinct footing in so far as the exercise of the inherent power to quash is concerned.
  • Criminal cases involving offences which arise from commercial, financial, mercantile, partnership or similar transactions with an essentially civil flavour may in appropriate situations fall for quashing where parties have settled the dispute. In such a case, the High Court may quash the criminal proceeding if in view of the compromise between the disputants, the possibility of a conviction is remote and the continuation of a criminal proceeding would cause oppression and prejudice.
  • Economic offences involving the financial and economic well-being of the state have implications which lie beyond the domain of a mere dispute between private disputants. The High Court would be justified in declining to quash where the offender is involved in an activity akin to a financial or economic fraud or misdemeanour. The consequences of the act complained of upon the financial or economic system will weigh in the balance.

 

Monday, November 13, 2017

156(3) without FIR

Question No. (i)

MANU/MH/1459/2009” Mr. Panchabhai Popotbhai Butani,  vs. The State of Maharashtra through Senior Inspector,  (10.12.2009 - BOMHC) : MANU/MH/1459/2009

 

Whether in absence of a complaint to the police, a complaint can be made directly before a Magistrate ?

 

Answer

 

Normally a person should invoke the provisions of Section 154 of the Code before he takes recourse to the power of the Magistrate competent to take cognizance under Section 190 of the Code, under Section 156(3). At least an intimation to the police of commission of a cognizable offence under Section 154(1) would be a condition precedent for invocation of powers of the Magistrate under Section 156(3) of the Code. We would hasten to add here that this dictum of law is not free from exception. There can be cases where noncompliance to the provisions of Section 154(3) would not divest the Magistrate of his jurisdiction in terms of Section 156(3). There could be cases where the police fail to act instantly and the facts of the case show that there is possibility of the evidence of commission of the offence being destroyed and/or tampered with or an applicant could approach the Magistrate under Section 156(3) of the Code directly by way of an exception as the Legislature has vested wide discretion in the Magistrate.

 

Question No. (ii)

 

Whether without filing a complaint within the meaning of Section 2(d) and praying only for an action under Section 156(3), a complaint before a Magistrate was maintainable ?

 

Answer

 

A Petition under Section 156(3) cannot be strictly construed as a complaint in terms of Section 2(d) of the Code and absence of a specific or improperly worded prayer or lack of complete and definite details would not prove fatal to a petition under Section 156(3), in so far as it states facts constituting ingredients of a cognizable offence. Such petition would be maintainable before the Magistrate.

 

Mr. Panchabhai Popotbhai Butani,  vs. The State of Maharashtra through Senior Inspector,  (10.12.2009 - BOMHC) : MANU/MH/1459/2009

Tuesday, September 5, 2017

Party seeking to comply with the judgment and taking time from court cannot later challenge it

Union of India v. Puja Dubey 2011 SCC OnLine Del 4879

 

7. We are of the view that a party to a lis if has represented to the Court that it intends to comply with the judgment and on such representation seeks extension of time prescribed for such compliance, and thereby acquiesces to the judgment, ought not to be permitted to subsequently challenge the said judgment without setting out as to why instead of complying, a decision for challenging the judgment has been taken. This is more so when such party to the litigation is the Government. It was so held by the Division Bench of this Court in Secretary, Govt. of India v. Sanjay Kumar MANU/DE/7428/2007 as also by the Division Bench of the Calcutta High Court in UOI v. R. Velumurugan (2009) 3 CHN 170. An attempt to brush the dust under the carpet cannot be ruled out.

Friday, July 28, 2017

Failure to frame points of determination is not fatal in First Appeal


2017 (2) SCC 415
Sent from Phone

Supreme Court: Enlargement of Notice

Yomeshbhai Pranshankar Bhatt v. State of Gujarat, (2011) 6 SCC 312 : (2011) 2 SCC (Cri) 944 at page 317

11. In view of this position under the Rules and having regard to the constitutional provision under Article 142, we do not think that this Court at the time of final hearing is precluded from considering the controversy in its entire perspective and in doing so, this Court is not inhibited by any observation in an order made at the time of issuing the notice.

 

Supreme Court passing order without notice to Respondent

State of Rajasthan v. Mahila Mandal, (2011) 15 SCC 499 : (2014) 1 SCC (L&S) 615 at page 499

2. We are quite conscious of the fact that we are passing this order without giving notice to the respondent(s) because the controversy is very limited and giving notice would cause much greater financial hardship for the respondent(s). In this view of the matter, we are passing this order in absence of the respondent(s). In case the respondent(s) is/are still aggrieved then the respondent(s) would be at liberty to approach this Court.

 

Wednesday, July 12, 2017

Public Interest v. Private Interest

Brij Pal Sharma v. Ghaziabad Development Authority, (2005) 7 SCC 106 at page 109

17. We, however, clarify that dismissal of the appeal should not be construed as approval of the conduct of the statutory authority in the manner in which it is sought to be done. The statutory authority, like GDA, being the State within the ambit of Article 12 of the Constitution, is duty-bound to act in a manner, which would benefit the public interest, overlooking the private interest. It is trite law that when the private interest is pitted against the public interest, the later must prevail over the former. If such instances are brought to the notice of the Court in future, they would be examined on their own merits.

 

Wednesday, May 24, 2017

Undertaking to pay under threat of arrest

Arrest warrant — Release upon undertaking to deposit Rs. 10 lac — Legality — Undertaking given by appellant while being under constraint of his arrest cannot be termed as voluntary one — Legal liability of appellant is yet to be ascertained — Arrest and release upon undertaking order cannot be legally sustained.
II (2015) BC 155 (DRAT — Delhi)

Friday, May 19, 2017

Filing 32 after 136

Once SLP is dismissed, another SLP from same order can be entertained

Binding Nature of Judgment set aside on a different point

 

S. Shanmugavel Nadar v. State of T.N., (2002) 8 SCC 361 at page 369

15. A situation, near similar to the one posed before us, has been dealt in Salmond's Jurisprudence (12th Edn., at pp. 149-50) under the caption — “Circumstances destroying or weakening the binding force of precedent: (perhaps) affirmation or reversal on a different ground.” It sometimes happens that a decision is affirmed or reversed on appeal on a different point. As an example, suppose that a case is decided in the Court of Appeal on ground A, and then goes on appeal to the House of Lords, which decides it on ground B, nothing being said upon A. What, in such circumstances, is the authority of the decision on ground A in the Court of Appeal? Is the decision binding on the High Court, and on the Court of Appeal itself in subsequent cases? The learned author notes the difficulty in the question being positively answered and then states: (i) The High Court may, for example, shift the ground of its decision because it thinks that this is the easiest way to decide the case, the point decided in the court below being of some complexity. It is certainly possible to find cases in the reports where judgments affirmed on a different point have been regarded as authoritative for what they decided. (ii) The true view is that a decision either affirmed or reversed on another point is deprived of any absolute binding force it might otherwise have had; but it remains an authority which may be followed by a court that thinks that particular point to have been rightly decided.

 

Thursday, May 11, 2017

"Second" SLP (by different party) against same impugned order may still be entertained

Delhi Admn. v. Madan Lal Nangia, (2003) 10 SCC 321 at page 326

4. Dr Dhavan submitted that this civil appeal should be dismissed because the Delhi Development Authority had also filed a special leave petition against this portion of the judgment whereby the writ petition of the respondents had been allowed. He pointed out that in that special leave petition the Union of India and the Delhi Administration were Respondents 10 and 13 respectively. He submitted that that special leave petition was dismissed on 18-11-1996. He pointed out that the review filed by the Delhi Development Authority was also dismissed on 7-11-2000. He submitted that in this special leave petition the Union of India and the Delhi Development Authority have not been made parties obviously with an intention of hiding the fact that the Delhi Development Authority's special leave petition had been dismissed. We are unable to accept this submission. We have seen the orders dated 18-11-1996 whereby the Delhi Development Authority's special leave petition was summarily dismissed. It is settled law that if a special leave petition is summarily dismissed such a dismissal does not bar other parties from filing a special leave petition against the same judgment. No authority is required for this proposition but if any is required, then the cases of Kunhayammed v. State of Kerala [(2000) 6 SCC 359] and S. Shanmugavel Nadar v. State of T.N. [(2002) 8 SCC 361] may be looked at. Even otherwise, the order dated 7-11-2000 is very clear. On this date the Delhi Development Authority's review petition was dismissed, but this order specifically delinked this civil appeal along with two other civil appeals. Once this Court has specifically chosen to keep this appeal alive, we do not consider it correct or proper to now dismiss this appeal only on the ground that the special leave petition and the review petition of the Delhi Development Authority have been dismissed.

 

Wednesday, May 10, 2017

SLP only against review order is not maintainable

 Vinod Kapoor v. State of Goa, (2012) 12 SCC 378 : 2012 SCC OnLine SC 817 at page 382

11. Moreover, on the High Court rejecting the application for review of the appellant, the order rejecting the application for review is not appealable by virtue of the principle in Order 47 Rule 7 CPC. In Shanker Motiram Nale v. Shiolalsing Gannusing Rajput [(1994) 2 SCC 753] , Suseel Finance & Leasing Co. v. M. Lata[(2004) 13 SCC 675] and M.N. Haider v. Kendriya Vidyalaya Sangathan [(2004) 13 SCC 677] cited by the learned counsel for Respondent 8, this Court has consistently held that an appeal by way of special leave petition under Article 136 of the Constitution is not maintainable against the order rejecting an application for review in view of the provisions of Order 47 Rule 7 CPC.

 

Monday, May 1, 2017

After dismissal of suit (default), writ will not lie

P.R. Murlidharan v. Swami Dharmananda Theertha Padar, (2006) 4 SCC 501 at page 504, para 12.

Wednesday, April 26, 2017

Two inconsistent sections in the same Act

Govt. of T.N. v. Park View Enterprises, (2001) 1 SCC 742 at page 746

8. The intent of the legislature in the matter of placement of sections also needs to be gone into since a later section will carry its effectiveness in the event of contraintention expressed in an earlier provision of the statute. The law is well settled on this score and we need not dilate thereon any further but the factum of the refusal to register by reason of undervaluation in terms of Section 47-A cannot stand scrutiny of acceptance having regard to the language used therein. The legislative intent as expressed in Section 35 stands clear to the fact that refusal to register is not permissible in terms therewith. Section 35 is a provision to cater for the instruments not being properly stamped and as such being inadmissible in evidence. It is not that the legislature was not aware of the stamp duty but a special power has been conferred on the Registrar in that regard and the Collector has been empowered to impose appropriate fees and stamp duty in terms of provision of Section 38 read with Sections 39 and 40 of the Act. The powers of the Collector as specified therein, stand in an unambiguous situation as the final authority in the matter of assessment of the duty leviable thereon, and that is precisely the reason as to why the State Legislature engrafted Section 47-A and specifically records in the statute that steps are to be taken only after registration of such an instrument. It can thus conclusively be said that there is existing a categorical expression of legislative intent in regard to the registration of the document — the registration is effected subject to the condition as provided in the statute itself with proper safeguard being taken note of by the legislature and contraexpression of opinion would run counter to the legislative intent which is otherwise not permissible in law.

 

Wednesday, April 12, 2017

Second SLP

In Vinod Kapoor v. State of Goa [(2012) 12 SCC 378 : AIR 2012 SC 3722] , has categorically observed that once the special leave petition is dismissed as withdrawn without obtaining appropriate permission to file a special leave petition once over again after exhausting the remedy of review petition before the High Court, the same is not maintainable.

Tuesday, February 14, 2017

Meaning of "any"



1. Shri Balaganesan Metals v. M.N. Shanmugham Chetty, (1987) 2 SCC 707 at page 718
18. In construing Section 10(3)(c) it is pertinent to note that the words used are “any tenant” and not “a tenant” who can be called upon to vacate the portion in his occupation. The word “any” has the following meaning:
“some; one of many; an indefinite number. One indiscriminately or whatever kind or quantity.
Word ‘any’ has a diversity of meaning and may be employed to indicate ‘all’ or ‘every’ as well as ‘some’ or ‘one’ and its meaning in a given statute depends upon the context and the subject-matter of the statute.
It is often synonymous with ‘either’, ‘every’ or ‘all’. Its generality may be restricted by the context;” (Black's Law Dictionary, 5th Edn.)

19. Unless the legislature had intended that both classes of tenants can be asked to vacate by the Rent Controller for providing the landlord additional accommodation, be it for residential or non-residential purposes, it would not have used the word “any” instead of using the letter “a” to denote a tenant.

2. LDA v. M.K. Gupta, (1994) 1 SCC 243 at page 254
4.   …The words ‘any’ and ‘potential’ are significant. Both are of wide amplitude. The word ‘any’ dictionarily means ‘one or some or all’. In Black's Law Dictionary it is explained thus, “word ‘any’ has a diversity of meaning and may be employed to indicate ‘all’ or ‘every’ as well as ‘some’ or ‘one’ and its meaning in a given statute depends upon the context and the subject-matter of the statute”. The use of the word ‘any’ in the context it has been used in clause (o) indicates that it has been used in wider sense extending from one to all.

3. K. Prabhakaran v. P. Jayarajan, (2005) 1 SCC 754 : 2005 SCC (Cri) 451 at page 779
50. In Black's Law Dictionary (6th Edn.) the word “any” is defined (at p. 94) as under:
Any.—Some; one out of many; an indefinite number. One indiscriminately of whatever kind or quantity.
One or some (indefinitely).
‘Any’ does not necessarily mean only one person, but may have reference to more than one or to many.
Word ‘any’ has a diversity of meaning and may be employed to indicate ‘all’ or ‘every’ as well as ‘some’ or ‘one’ and its meaning in a given statute depends upon the context and the subject-matter of the statute.
It is often synonymous with ‘either’, ‘every’, or ‘all’. Its generality may be restricted by the context; thus, the giving of a right to do some act ‘at any time’ is commonly construed as meaning within a reasonable time; and the words ‘any other’ following the enumeration of particular classes are to be read as ‘other such like’, and include only others of like kind or character.”
51. The word “any” may have one of the several meanings, according to the context and the circumstances. It may mean “all”; “each”; “every”; “some”; or “one or many out of several”. The word “any” may be used to indicate the quantity such as “some”, “out of many”, “an infinite number”. It may also be used to indicate quality or nature of the noun which it qualifies as an adjective such as “all” or “every”. (See The Law Lexicon, P. Ramanatha Aiyar, 2nd Edn. at p. 116.) Principles of Statutory Interpretation by Justice G.P. Singh (9th Edn., 2004) states (at p. 302)—
“When a word is not defined in the Act itself, it is permissible to refer to dictionaries to find out the general sense in which that word is understood in common parlance. However, in selecting one out of the various meanings of a word, regard must always be had to the context as it is a fundamental rule that ‘the meanings of words and expressions used in an Act must take their colour from the context in which they appear’. Therefore, ‘when the context makes the meaning of a word quite clear, it becomes unnecessary to search for and select a particular meaning out of the diverse meanings a word is capable of, according to lexicographers’.”

4. Indra Sawhney v. Union of India, 1992 Supp (3) SCC 217 : 1992 SCC (L&S) Supp 1 : (1992) 22 ATC 385 at page 595

579. ‘Backward class’ in Article 16(4) thus cannot be read as backward caste. What is the scope then? Is it social backwardness, educational backwardness, economic backwardness, social and economic backwardness, natural backwardness etc.? In absence of any indication expressly or impliedly any group or collectivity which can be legitimately considered as ‘backward’ for purposes of representation in service would be included in the expression ‘backward class’. Word ‘any’ is indicative of that the backward class was not visualised in singular. When the Constitution was framed the anxiety was to undo the historical backwardness. Yet a word of wider import was used to avoid any closed-door policy. For instance, backwardness arising out of natural reasons was never contemplated. But today with developments of human rights effort is being made to encourage those to whom nature has not been so kind. Do such persons not form a class? Are they not backward? They cannot, obviously compete on equal level with others. Backwardness which the Constitution-makers had to tackle by making special provision, due to social and economic condition, was different but that does not exclude backwardness arising due to different reasons in new set-up.
580. Although dictionarily the word ‘any’ may mean one or few and even all yet the meaning of a word has to be understood in the context it has been used. In Article 16(4) it cannot mean all as it would render the whole Article unworkable. The only, reasonable meaning that can be attributed to it is that it should be the States' discretion to pick out one or more than one from amongst numerous groups or collectivity identified or accepted as backward class for purposes of reservation. Whether such picking is reasonable and satisfies the test of judicial review is another matter. That explains the rationale for the non-obstante clause being discretionary and not mandatory. A State is not bound to grant reservation to every backward class. In one State or at one place or at one point of time it may be historical and social backwardness or geographical and habitational backwardness and at another it may be social and educational or backwardness arising out of natural cause.


Friday, January 27, 2017

Plea of Jurisdiction can be raised at any stage

Most Rev. P.M.A Metropolitan v. Mar Marthoma 1995 Supp (4) 286, that the plea of bar of jurisdiction of Civil Court can be raised even at the stage of Supreme Court directly.

Wednesday, January 25, 2017

Review cannot be moved after moving Appeal

In  Kabari (P) Ltd. v. Shivnath Shroff [(1996) 1 SCC 690 : AIR 1996 SC 742]:Court cannot entertain an application for review if before making the review application, the superior court had been moved for getting the selfsame relief, for the reason that for the selfsame relief two parallel proceedings before the two forums cannot be taken.

 

However: where the matter has been decided by a non-speaking order in limine the party may approach the High Court by filing a review petition. National Housing Coop. Society Ltd. v. State of Rajasthan [(2005) 12 SCC 149] .

Promotion should be challenged within 6 months or at most a year

PS Sadasivaswamy v. State of TN, (1975) 1 SCC 152

Statutory rules cannot be amended by Executive instructions, but filling of gaps is permissible

Sant Ram Sharma v. State of Rajasthan, AIR 1967 Supreme Court 1910 (Consti. Bench)

When High Court has condoned delay, not proper for Supreme Court at SLP stage to dismiss on that ground

Dayal Singh v. Union of India, (2003) 2 SCC 593