SUPREME COURT

• CRIMINAL LAWS

Amin Khan vs. State of Rajasthan and Ors. (Decided on 25.02.2009) MANU/SC/0280/2009

Scope and ambit of Section 390 of the Code of Criminal Procedure - Trial Court ordered acquittal of six persons who faced trial for allegedly committing offences punishable under Section 396 of the Indian Penal Code, 1860 and Sections 3 and 35 of the Arms Act, 1959 - State contended that acquittal of the accused persons was based on mere presumptions without considering the evidence on record and therefore liable to be set aside - High Court vide impugned order granted leave and summoned the accused persons through bailable warrants and later accepted the plea of State vide application in terms of Section 390 read with Section 482 of Code for revoking the earlier order and to commit the accused persons to prison after summoning them through non bailable warrants

To prove allegations of dacoity under Section 396 IPC against accused persons, the prosecution has to prove that the accused persons were five or more than five in number - When an appeal is presented under Section 379, the High Court may issue a warrant directing that the accused be arrested and brought before it or any subordinate court, and the Court before which he is brought may commit him to prison pending the disposal of the appeal or admit him to bail - High Court under Section 390 has the power to re-arrest the accused pending the disposal of an appeal against his acquittal - High Court has found that prima facie the evidence regarding identification made in court and DNA test has not been considered in the proper perspective by the trial Court - No infirmity found in the impugned judgment to warrant interference - Appeal dismissed

Mani @ Udattu Man and Ors. vs. State rep. by Inspector of Police (Decided on 25.02.2009) MANU/SC/0285/2009

Conviction for offences punishable under Section 302 of the Indian Penal Code, 1860 - One accused was acquitted and seven were convicted - Prosecution in order to establish charge against the accused, examined fifteen witnesses - Plea of the accused person before High Court in appeal was that since almost all the prosecution witnesses examined as eye-witnesses did not support the prosecution version - High Court dismissed the plea - Applicability of the maxim falsus in uno falsus in omnibus

It is the duty of Court to separate grain from chaff. Where chaff can be separated from grain, it would be open to the Court to convict an accused notwithstanding the fact that evidence has been found to be deficient, or to be not wholly credible. Falsity of material particular would not ruin it from the beginning to end. The maxim "falsus in uno falsus in omnibus" has no application in India and the witness or witnesses cannot be branded as liar (s). The maxim "falsus in uno falsus in omnibus" has not received general acceptance nor has this maxim come to occupy the status of rule of law. It is merely a rule of caution. All that it amounts to is that in such cases testimony may be disregarded, and not that it must be disregarded. The doctrine is dangerous for if a whole body of the testimony were to be rejected, because witness was evidently speaking an untruth in some aspect, it is to be feared that administration of criminal justice would come to a dead-stop - Therefore, it has to be appraised in each case as to what extent the evidence is worthy of acceptance. The evidence of the relevant witness and the cross examination when compared with the complaint, corroborated and strengthened the prosecution version - Appeals dismissed

Narayan vs. State of Rajasthan (Decided on 25.02.2009) MANU/SC/0286/2009

Conviction for offences punishable under Sections 302 and 201 of the Indian Penal Code, 1860 - Conviction based on circumstantial evidence - Correctness thereof questioned

Where a case rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person - Circumstances from which an inference as to the guilt of the accused is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances - In a case based on circumstantial evidence, the settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature and all the circumstances should be complete and there should be no gap left in the chain of evidence - In the instant case, circumstances highlighted by the Trial court and the High Court clearly established the guilt of the accused - Appeal dismissed

• CONSTITUTIONAL LAWS

People's Union for Civil Liberties and Anr. Vs. Union of India (UOI) and Anr. (Decided on 23.02.2009) MANU/SC/0263/2009

Scope of the citizen's right - Right of negative voting - Whether Election Commission empowered to issue directions as ordered by the High Court - Whether a voter, a citizen of this Country has a right to get relevant information, such as assets, qualification and involvement in offence for being educated and informed for judging the suitability of a candidate contesting election as MP or MLA

In a democracy, the electoral process has a strategic role - Democracy based on "free and fair elections" was considered as a basic feature of the Constitution in the case of Kesavananda Bharati - Right to elect, to be elected and to dispute an election are neither fundamental rights nor common law rights but are simply statutory rights and therefore subject to statutory limitations - An election petition similarly is not an action at common law, nor in equity but is a statutory proceeding to which only statutory rules apply - Statute concerned with the election matters is the Representation of the People Act which is a complete and self-contained code and within it must be found any rights claimed in relation to an election or an election dispute - Issue whether right of the voter to exercise his choice for the candidate is a necessary concomitant of the voter's freedom of expression guaranteed under Article 19(1)(a) of the Constitution, needs a clear exposition of law by a larger Bench - Also the width and amplitude of the power of the Election Commission under Article 324 needs further consideration by a larger Bench in the light of the judgments of the Apex Court whereby the elector's right to be informed about the assets and antecedents of the persons seeking election to the legislature has been duly recognized - File to be placed before Hon'ble the Chief Justice for appropriate order.

• SERVICE LAWS

Sri Jyotish Kaiborta and Ors. Vs. The State of Assam and Ors. (Decided on 25.02.2009) MANU/SC/0287/2009

Appointments to the vacant posts of Lower Division Assistants in the Transport Department, Government of Assam - Validity of Selection process questioned

In a case where in viva voce very high marks were given to candidates who secured low or very low marks in the written test that might be a ground for suspicion. But if the candidates securing high marks in the written test were able to secure equally high marks in viva voce, no anomaly could be found. There have to be some difference between the selected and the unselected candidates. High Court did not made clear the `distinct pattern' it was able to discern from a scrutiny of the marks awarded to the candidates - It is settled law that in such writ petitions a roving inquiry on the factual aspect is not permissible - High Court not only engaged itself into a non-permitted fact-finding exercise but also went on to rely on the findings of the amicus curiae, or as the case may be, the scrutiny team, which was inappropriate - While testing the fairness of the selection process wherein thousands of candidates were involved, the High Court should have been slow in relying upon such microscopic findings and it was not for the High Court to place itself into a position of a fact-finding commission, that too, more particularly at the instance of those petitioners who were unsuccessful candidates.

HIGH COURT

• BANKING

RAJASTHAN HIGH COURT

Adesh Saint Vs Dr. Pramod Bhatnagar, (Decided on 21.01.2009) MANU/RH/0005/2009

Banking- Maintainability of Complainant- Question before the court was whether power of attorney holder can file Complaint?- Complaint u/s 138 of N.I.Act filed through power of Attorney holder against respondent before Trial court and Court took cognizance- Order assailed before Sessions court by the respondent and was allowed and hence this petition.

It is well settled that the object of Section 200 of the Code in providing for examination of the complainant and his witnesses by the court is to satisfy itself about the existence of a prima facie case against the person accused of the offence and to ensure that such person is not harassed by false and vexatious complaints by issue of process. The power of attorney holder is entitled to file the complaint.

• TRUSTS AND SOCIETIES

MADRAS HIGH COURT 

The Pentecostal Mission Vs. Union of India and Ors. (Decided on 06.01.2009) MANU/TN/0098/2009

Tax concessions- Petitioner society, which is a charitable institution challenged the Notification S.O.1248 (E) dated 05.11.2004 on the ground that Omni Buses belonging to the Petitioner Society have been categorised as 'transport vehicles' and therefore, Notification is ultra vires?

Omni Buses owned by the Petitioner Society are used only for preaching / attending prayer meeting it may also be that Omni Buses owned by Petitioner Society are used for other charitable purposes and running less mileage. If the vehicles of Petitioner Society are so used for Religious / Charitable purposes and running less mileage, it is for the Petitioner Society to approach the Transport Commissioner / 2nd Respondent seeking concession in rate of taxes.vehicles used by Philanthropical Institutions, concession has been granted in payment of t ax. . Therefore in the instant case it is for the Petitioner Society to approach the 1st Respondent / Transport Commissioner for payment of tax in respect of vehicles owned by it.

• TENANCY

BOMBAY HIGH COURT

The Mahal Masjid Trust, A public trust, Duly registered under Bombay Public Trust Act, thr. Mohd. Akbar Patel S/o Badshahmiyan and Shri Naimuddin Khan S/o Azizuddin Khan Vs.Respondent: Additional Collector, Collectorate Premises and Abdul Wahab S/o Bismilah Saheb (Decided on 03.02.2009) MANU/MH/0075/2009

Restoration of Possession - Petitioner/landlord challenged the order of Rent Controller granting restoration of possession in favour of the Respondent on an application u/s Clause 13 (7) of the C.P. and Berar Letting of Premises and Rent Control Order, 1949?

Where the landlord has obtained possession of the premises in pursuance of the permission granted by the Controller under Clause 13 (1) on the ground specified in Clause 13 (3) (vii), the landlord shall, after repairs or alterations above have been completed, restore possession of the premises to the tenant.If Clause 13 (3) (vii) and clause 13(7) of the Rent Control Order are read together, it appears that if the provisions of Clause (7) are not complied with, an application can be moved before the Rent Controller for enforcement of that right and restoration of possession. However, if by some private agreement and particularly without any permission of the Rent Controller, the tenant vacates the premises in favour of the landlord, Clause 13 is completely silent and does not provide any protection and restoration in favour of the tenant.

• MUNICIPAL TAXES

ALLAHABAD HIGH COURT

Govel Trust running Aravind Eye Hospital Vs. The Government of Tamil Nadu, rep. by its Secretary, Municipal Administration and Water Supply Department, The Executive Officer, Kalapatti Town Panchayat and The Kalapatti Town Panchayat (Decided on 23.01.2009) MANU/TN/0087/2009

Property tax - Petitioner filed writ petitions against the assessment and demand of property tax made by the second and third respondents in respect of an Eye Hospital run by the petitioner Trust?

Plea of the Municipal Corporation was that the petitioner Trust in their hospitals are collecting rents from the patients and, therefore, it is commercial in nature and hence the exemption provided under the MCMC Act will not ensure to their benefit is not acceptable .Learned Judge held that since the exemption available under Section 123 of the Coimbatore City Municipal Corporation Act is similar to the exemption available under Section 121(e) of the Madurai City Municipal Corporation Act, the hospital run by the petitioner Trust at Madurai was eligible for an exemption from paying the property tax. The fact that in respect of the very same Trust running hospitals at Madurai and Tirunelveli, this Court had categorically held that they are not liable to pay property tax as it had been statutorily exempted from such payments. It is also brought to the notice of this Court that in more or less under similar circumstances in respect of a private educational institution, similar questions came up for consideration before this Court.

• LABOUR AND INDUSTRIAL

MADRAS HIGH COURT

The Pondicherry Housing Board Employees' Union, rep. by its Secretary Mr. Rathina Subramanian and The Pondicherry Housing Board Staff Union, rep. by its Secretary Mr. D. FrancisVs.The Government of Pondicherry, rep. by Chief Secretary, Government of Pondicherry and The Pondicherry Housing Board, rep. by its Chairman (Decided on 19.01.2009) MANU/TN/0093/2009

Bonus- Petitioners filed Writ petitions seeking for a direction to the second respondent to grant the statutory minimum bonus of 8.33% every year together with the exgratia payment paid to the employees of the public sector undertaking under the first respondent Government?

Once the statutory exemptions pleaded under Section 32 by the respondents fail and there being no other exemption granted by the State Government under Section 36 of the Bonus Act, the necessary corollary is that the Bonus Act will apply to the second respondent. Since the petitioners are only seeking for a statutory minimum bonus guaranteed under Section 10 of the Bonus Act, there is no necessity to drive them to raise an industrial dispute regarding the quantum of bonus payable to its employees. If the workmen of the second respondent are aggrieved and want something more than the statutory minimum bonus the only remedy open to them is to raise an industrial dispute in terms of Section 22 of the Payment of Bonus Act, 1965.

• CRIMINAL

GUJARAT HIGH COURT

Arvindbhai @ Hadiyo Khimjibhai Solanki Vs. Commissioner of Police and 2 Ors. (Decided on 21.01.2009) MANU/GJ/0042/2009

Detention- Petitioner-detenu assailed the order passed the by the respondent No. 1, Ahmedabad, in exercise of power under Sub-section (2) of Section 3 of the Gujarat Prevention of Anti Social Activities Act, 1985 by filing Writ Petition.

Before passing an order of detention, the detaining authority must come to a definite findings that there is threat to the 'public order' and it is very clear that the present case would not fall within the category of threat to a public order. In that view of the matter, when the order of detention has been passed by the detaining authority without having adequate grounds for passing the said order, cannot be sustained and, therefore, it deserves to be quashed and set aside.

• CONTEMPT OF COURT

BOMBAY HIGH COURT

Smt. Rupali Shah and Shri Pradeep S. Shah Vs. Respondent: Munesh Ralhan @ Ricky Ralhan and Smt. Manorama Ralhan (Decided on 02.02.2009) MANU/MH/0078/2009

Contempt of court - Whether contempt notice is barred by the law of limitation as it was issued after one year of the alleged breach ? Contempt proceedings initiated against the petitioners for breaching the status quo order dtd 10th May 1999 passed in notice of motion No. 1455/1999 in suit No. 2606/1999.

The action of issuing suo-motu notice on 27th October 2005 is not within a period of one year from the date on which the contempt is alleged to have been committed. The said show cause notice is, therefore, issued after expiry of the limitation period prescribed in Section 20 of the Contempt of Courts Act, 1971 and therefore, cannot be proceeded with.

• SERVICE

JHARKHAND HIGH COURT

Smt. Babni Debi and Smt. Shanti Devi Vs. State of Jharkhand and Ors. (Decided on 16.01.2009) MANU/JH/0015/2009

Pension- Question before the court was that "whether the services rendered in a pvt Hospital prior to its taking over by the state Govt should taken into account for granting pensionary benefits?

Petitioners cannot claim weightage of their services rendered by them in the Hospital prior to its taking over by the State Government for any purpose or for any pensionary benefits.

• CRIMINAL

BOMBAY HIGH COURT

Ram Shankar Sahane son of Tufani Sahane Vs. State (Decided on 30.01.2009) MANU/MH/0083/2009

Murder - Order of conviction passed u/s 302 IPC has been assailed by the petitioner by filing this Appeal?-Question before the court was whether all the circumstances proved beyond doubt while coming to conclusion that in all probability to establish the guilt of the accused on the basis of circumstantial evidence?

Court was of the view that motive is always relevant in criminal cases and in case based on circumstantial evidence, it is of special importance, but is of no consequence, if the evidence is strong. There is no doubt that there is motive behind every crime and that is why the investigation agency as well as the Courts while examining the complicity of an accused try to ascertain as to what was the motive on the part of the accused to commit the crime in question. This is a clear case where motive was alleged by the prosecution and the prosecution has failed to prove the same. In a case based on circumstantial evidence and where the evidence is very weak, motive is of special significance to the prosecution and prosecution having alleged it but having failed to prove the same certainly it does break one link in the chain of circumstance

It is well settled law that the case of the prosecution has to be tested independently of the defence version and the Court has to be cautious to avoid the risk of allowing mere suspicion however strong to take the place of proof. That is why, we often say that it is not the defence which wins but it is the prosecution which loses. A mere moral conviction or a suspicion, however grave it may be, cannot take place of proof. Acquitting the guilty is as much doing injustice, as convicting the innocent, and both are to be scrupulously avoided.