SUPREME COURT

• CRIMINAL LAWS

Bholu Ram Vs. State of Punjab and Anr. (Decided on 29.08.2008)

Scope of Section 319 of the Code of Criminal Procedure, 1973 - Whether application under section 319 of the Code can be filed only by the person other than accused - Whether it prescribes any time limit for filing such application

Section 319 of the Code empowers a Court to proceed against any person not shown to be an accused if it appears from the evidence that such person has also committed an offence for which he can be tried together with the accused.

The primary object underlying Section 319 is that the whole case against all the accused should be tried and disposed of not only expeditiously but also simultaneously. Justice and convenience both require that cognizance against the newly added accused should be taken in the same case and in the same manner as against the original accused. The power must be regarded and conceded as incidental and ancillary to the main power to take cognizance as part of normal process in the administration of criminal justice.

It is also settled law that power under Section 319 can be exercised either on an application made to the Court or by the Court suo motu. It is in the discretion of the Court to take an action under the said section and the Court is expected to exercise the discretion judicially and judiciously having regard to the facts and circumstances of each case.

Section 319 nowhere states that such an application can be filed by a person other than the accused. It also does not prescribe any time limit within which such application should be filed in the Court.

Whether Judicial Magistrate once after having passed an order and summon were issued, has power, authority or jurisdiction to review the said order or recall the summons - Whether by interfering with the findings of the Judicial Magistrate, the Revisional Court's holding that Judicial Magistrate has such power sustainable - Legal remedy available to the party aggrieved

The holding of the revisional Court, that the Magistrate has power to recall the earlier order passed by him, by relying upon K.M. Mathew's case decided by the Apex Court. The learned Additional Sessions Judge ought to have considered the material fact in its proper perspective that the order passed by the learned Magistrate was legal and proper and because of that, the revision filed against that order by the State was also dismissed by the revisional Court.

Even if it is assumed that the trial Court did not possess the power of recalling its order, it would not preclude the revisional Court from exercising revisional jurisdiction and quashing and setting aside an order passed by a subordinate Court if it was not in accordance with law. In a given case, a Magistrate may take cognizance of an offence illegally or arbitrarily without there being any material whatsoever. Such illegal order should not deprive the accused from contending that the learned Magistrate was wrong and wholly unjustified in entertaining the complaint or taking cognizance of an offence. In such cases, however, the accused is not without legal remedy. If the act of taking cognizance, issuance of process or joining of an innocent person as an accused is totally uncalled for or ex facie bad in law, it is open to the aggrieved party to invoke inherent jurisdiction of the High Court under Section 482 of the Code. If the High Court is satisfied that the order passed by the Magistrate was illegal, improper or arbitrary, it can exercise inherent powers and quash criminal proceedings initiated against the party. But that power is independent and has nothing to do with recalling of an earlier order by the Court, which passed it.

• SERVICE LAWS

Union of India (UOI) and Anr. vs. S. Nagarajan (Decided on 01.09.2008)

Whether direction of retrospective appointment or continuity of service or for regular appointment in the absence of vacancies justified - Casual employee arrested in connection with criminal case - On acquittal, against representation made no reinstatement with conferment of temporary status done - CAT directed to dispose of the representation, which however was rejected on the ground that no casual workers were then being appointed - High Court directed that he should be taken into appointment retrospectively however he shall not be entitled to any monetary benefits for the past period but such past period could be taken into account for the purpose of increment and other benefits in future

High Court not justified in directing retrospective appointment or continuity of service. Nor could there be any direction for regular appointment in the absence of vacancies. Also since he was not in service in the relevant period, he was also not entitled to claim temporary status under the relevant scheme. He was directed to be reemployed as a fresh ad-hoc employee provided he makes a written application in this behalf and thereafter to be continued as such ad-hoc employee till a regular vacancy arises in which he can be absorbed. He will not be entitled to any benefits available to regular employees until he is regularly appointed. However it was clarified that this shall not be a precedent.

• CONSTITUTIONAL LAWS

State of Maharashtra vs. Bharat Shanti Lal Shah and Ors. (Decided on 01.09.2008)

Constitutional validity of the Maharashtra Control of Organised Crime Act, 1999 (`MCOCA') challenged on the ground that the State Legislature did not have the legislative competence to enact such a law and also that the aforesaid law is unreasonable and is violative of the provisions of Article 14 of the Constitution of India - Bombay High Court upheld the constitutional validity of Section 2(d), (e) and (f) and also the provisions of Sections 3 and 4 but struck down Sections 13 to 16 as unconstitutional as being beyond the legislative competence of the State Legislature - The High Court held that the Parliament alone has the power to make law in that regard as provided for under Entry 31 of List I of Seventh Schedule to the Constitution and that already the Indian Telegraph Act, 1885, a Central Act was holding the field. The High Court also struck down Sub-section (5) of Section 21 of the MCOCA holding that the same was violative of provisions of Article 14 of the Constitution of India

Issue of constitutional validity of Sections 13 to 16 as also Section 21(5) of MCOCA, on the ground of lack of legislative competence and also being violative of the fundamental rights guaranteed in Part III of the Constitution or of any other constitutional provision

A perusal of the relevant provisions of MCOCA would indicate that the said law authorizes the interception of wire, electronic and oral communication only if it is intended to prevent the commission of an organised crime or if it is intended to collect the evidence to the commission of such an organized crime. Interception of wire, electronic and oral communication with the said intent in case of urgency is also permitted under the State Act in which case it is to be approved by an officer not below the rank of Additional Director General of Police within 48 hours of occurrence of interception. The provisions of the MCOCA when read with the Statement of Objects and Reasons, which are already dealt with and referred to hereinbefore, would make it apparent and establish that the grounds for interception of the communication under MCOCA are distinct and different from the ground covered by Section 5(2) of the Telegraph Act. A comparative reading of the provisions of the Telegraph Act as also of the MCOCA would establish that both the Acts deal with the subjects and areas, which cannot be said to be identical and common.

It is now well settled that though the Statement of Objects and Reasons accompanying a legislative Bill cannot be used to determine the true meaning and effect of the substantive provisions of a statute, but it is permissible to refer to the Statement of Objects and Reasons accompanying a Bill for the purpose of understanding the background, the antecedent state of affairs, the surrounding circumstances in relation to the statute, and the evil which the statute sought to remedy.

The objects and reasons read with the contents of the Act would indicate that the subject matter of the Act is maintaining public order and prevention by police of commission of serious offences affecting public order and, therefore as submitted, it will be relatable to Entry 1 and 2 of List II. After enacting MCOCA, assent of the President was also obtained and received on 24.04.1999. That being the position if the subject matter and the field of legislation are found to be covered under any of the entries of the Concurrent List also, the constitutional validity will have to be upheld. Thus, Entry 1, 2 and 12 of the Concurrent List would and could also be brought into operation and aid can be taken from said entries also, for the Act deals with subject matters which are relatable as well to Entries 1, 2 and 12 of the Concurrent List.

The source of power to legislate the aforesaid Act can be derived by the State from the aforesaid entries of the State List and the Concurrent List and while enacting the aforesaid State Act the assent of the President was also taken. Therefore, the Act cannot be said to be beyond the legislative competence of the State Legislature. The content of the said Act might have encroached upon the scope of Entry 31 of List I but the same is only an incidental encroachment. As the main purpose of the Act is within the parameter of Entry 1 and 2 of the State Legislature we find no reason to hold that the provisions of Sections 13 to 16 are constitutionally invalid because of legislative competence.

Whether the provisions are violative of the mandate of Article 21 of the Constitution

The Right to Privacy has been developed by the Supreme Court over a period of time and with the expansive interpretation of the phrase `personal liberty', this right has been read into Article 21. As stated in the case of Gobind v. State of M.P. reported in (MANU/SC/0119/1975) that Right to Privacy is a `right to be let alone' and a citizen has a right `to safeguard the privacy of his own, his family, marriage, procreation, motherhood, child-bearing and education among other matters'. The term privacy has not been defined and it was held in the case of People's Union for Civil Liberties (PUCL) v. Union of India (MANU/SC/0149/1997) that as a concept it may be too broad and moralistic to define it judicially and whether right to privacy can be claimed or has been infringed in a given case would depend on the facts of the said case.

The interception of conversation though constitutes an invasion of an individual right to privacy but the said right can be curtailed in accordance to procedure validly established by law. Thus what the Court is required to see is that the procedure itself must be fair, just and reasonable and non arbitrary, fanciful or oppressive.

The object of the MCOCA is to prevent the organised crime and a perusal of the provisions of Act under challenge would indicate that the said law authorizes the interception of wire, electronic or oral communication only if it is intended to prevent the commission of an organised crime or if it is intended to collect the evidence to the commission of such an organized crime. The procedures authorizing such interception are also provided therein with enough procedural safe guards, some of which are indicated and discussed hereinbefore. In addition under Section 16 of the MCOCA, provision for prohibiting and punishing the unauthorized user of information acquired by interception of wire, electronic or oral communication has been made. Thus as the Act under challenge contains sufficient safeguards and also satisfies the aforementioned mandate the contention of it being violative not accepted.

Whether a person accused of an offence under MCOCA should be denied bail if on the date of the offence he is on bail for an offence under MCOCA or any other Act

The object of the MCOCA is to prevent the organised crime and, therefore, there could be reason to deny consideration of grant of bail if one has committed a similar offence once again after being released on bail but the same consideration cannot be extended to a person who commits an offence under some other Act, for commission of an offence under some other act would not be in any case in consonance with the object of the act which is enacted in order to prevent only organised crime.

A person who is on bail after being arrested for violation of law unconnected with MCOCA, should not be denied his right to seek bail if he is arrested under the MCOCA, for it cannot be said that he is a habitual offender. The provision of denying his right to seek bail, if he was arrested earlier and was on bail for commission of an offence under any other Act, suffers from the vice of unreasonable classification by placing in the same class, offences which may have nothing in common with those under MCOCA, for the purpose of denying consideration of bail. The aforesaid expression and restriction on the right of seeking bail is not even in consonance with the object sought to be achieved by the Act and, therefore, on the face of the provisions this is an excessive restriction.

Whether the expression "or under any other Act" appearing in the section is arbitrary and discriminatory

The said words from Sub-section (5) of Section 21 as being violative of Article 14 and 21 of the Constitution, order of the High Court was upheld to the extent that the words "or under any other Act" should be struck down from Sub section (5) of Section 21.

• CIVIL

INTERPRETATION OF STATUTE

Union of India (UOI) and Ors. vs. Priyankan Sharan and Anr. Decided on 08.09.2008

Object of Interpretation of Statute - Maxim of "Ad ea quae frequentius accidunt jura adaptantur" (The laws are adapted to those cases which more frequently occur)

It is well settled principle in law that the Court cannot read anything into a statutory provision, which is plain and unambiguous. A statute is an edict of the Legislature. The language employed in a statute is the determinative factor of legislative intent.

The intention of the Legislature is primarily to be gathered from the language used, which means that attention should be paid to what has been said as also to what has not been said. As a consequence, a construction which requires for its support, addition or substitution of words or which results in rejection of words as meaningless has to be avoided.

While interpreting a provision the Court only interprets the law and cannot legislate it. If a provision of law is misused and subjected to the abuse of process of law, it is for the legislature to amend, modify or repeal it, if deemed necessary.

Two principles of construction - one relating to casus omissus and the other in regard to reading the statute as a whole - appear to be well settled. Under the first principle a casus omissus cannot be supplied by the Court except in the case of clear necessity and when reason for it is found in the four corners of the statute itself but at the same time a casus omissus should not be readily inferred and for that purpose all the parts of a statute or section must be construed together and every clause of a section should be construed with reference to the context and other clauses thereof so that the construction to be put on a particular provision makes a consistent enactment of the whole statute. This would be more so if literal construction of a particular clause leads to manifestly absurd or anomalous results which could not have been intended by the Legislature.

HIGH COURT

• FAMILY

BOMBAY HIGH COURT

Miss Smita Halarnkare through her mother Mrs. Gokula Fadte Vs. Mr. Mahendra Halarnkar (Decided on 13.08.2008) MANU/MH/0720/2008

Illegal Child - Maintenance sought under section 125 of the Code of Criminal Procedure - Whether entitled to claim

As held by the apex court in Nand Lal Misra v. Kanhaiya Lal Misra,the proceedings under S.125 are civil in nature and it recognizes the right of a child or wife to claim maintenance and prescribes the procedure to be followed. An illegitimate child unable to maintain itself is entitled to a monthly allowance for its maintenance, if the putative father having sufficient means neglects or refuses to maintain him.The ground for making application under this section is not legitimacy or illegitimacy but the paternity of the child is required to be proved. The onus lies squarely on the mother, to establish the paternity of such child. The failure to prove the marriage between the petitioner's mother and the respondent was no ground to discard the maintenance to the illegitimate child as the standard of proof of marriage in proceedings under Section 125 is not as strict as it is required in a trial for an offence under Section 494 of IPC.

• SERVICE

GUJARAT HIGH COURT

Pravinkumar Balwantpuri Goswami Vs. State of Gujarat and 6 Ors. (Decided on 14.08.2008) MANU/GJ/0537/2008

Whether Government servant entitled to claim revocation of his transfer order

Transfer is an incidence of service and no right accrues to an employee to stay at a particular place till the entire length of his service. As held by apex court in Union of India and Ors v. S.L. Abbas, who should be transferred where, is a matter for the appropriate authority to decide and such order of transfer cannot be vitiated or interfered by the court unless there is malafides or violation of statutory provisions of law.

A Government servant, who holds a transferable post, has no vested right to remain posted at a particular place and is liable to be transferred from one place to another, in the public interest and as per administrative exigencies prevalent at the relevant point of time.No mala fides or political interference detrimental to him is proved from the material on record.

JHARKHAND HIGH COURT

Janardan Prasad Saha and Anr. Vs.The State of Jharkhand and Ors. (Decided on 03.07.2008) MANU/JH/0479/2008

Whether recovery of excess amount paid as a part of salary after revision of pay scale justified

Going by the judicial pronouncements, the employer cannot recover the amount paid to the employees as a part of the salary after the revision of the pay scale. The order of recovery to the extent of difference of is illegal, arbitrary and unsustainable. In Sahib Ram case (supra), the Supreme Court has specifically held that any amount paid to an employee without his misrepresentation cannot be recovered. In most cases it has been held that after retirement, there is no relationship of employer and employee between the parties and the recovery out of the retiral dues cannot be made, except by following the due procedure established by law.

• PROPERTY

PUNJAB AND HARYANA HIGH COURT

Harish Chand and Anr. Vs. Rameshwar Dayal Mangla alias Ramesh Chand (Decided on 25.03.2008) MANU/PH/0535/2008

Adverse Possession -Whether continuous possession over the suit property for more than 21 years prior to filing of the suit makes claimant entitled to right of ownership by way of adverse possession

Permissive possession cannot become hostile by long lapse of time and it does not entitle the licencee to claim adverse possession.A suit for mandatory injunction can be filed by the owner of the immovable property on the termination of the licence.The grant of licence may be express or implied which can be inferred from the conduct of the parties. Though there is no writing with regard to the property having been given to the defendant, however, permissive possession is proved from the fact that house tax and property tax receipts are in the name of the plaintiffs, which is also admitted by the defendants. It is not necessary for the licenser to file a regular suit for possession by paying court fee on the market value of the property.

• SALES TAX/VAT

ORISSA HIGH COURT

Hindustan Petroleum Corporation Ltd. Vs. State of Orissa and Ors. (Decided on 16.05.2008) MANU/OR/0218/2008

Scope and Meaning of doctrine of merger - Determination of

According to Law Lexicon "the doctrine of merger arises only when there are two independent things and the greater one would swallow up or may extinct the lessor one by process of absorption." It is a common law doctrine founded on principles of propriety in the hierarchy of justice delivery system. The honourable Supreme Court in the case of Amba Bai v. Gopal reported in MANU/SC/0286/2001 held that if the judgment or order of an inferior court is subjected to an appeal or revision by the superior court and in such proceedings the order or judgment is passed by the superior court determining the rights of the parties, it would supersede the order or judgment passed by the inferior court. The juristic justification for such doctrine of merger is based on the common law principle that there cannot be, at one and the same time, more than one operative order governing the subject-matter and the judgment of the inferior court is deemed to lose its identity and merges with the judgment of the superior court.

• CIVIL

PUNJAB AND HARYANA HIGH COURT

Ahuja Distributor and Anr. Vs.Sarup Tanneries Limited and Anr. (Decided on 15.05.2008) MANU/PH/0541/2008

Discovery of documents - Scope and object of Order 11 rule 12 of the Code of Civil Procedure, 1908.

An application for discovery of documents can be made under the provisions of Order 11 Rule 12 CPC. This provision enables a party to apply to the Court for an order directing any other party to suit to make discovery on oath of the documents, which are or have been in his possession or power relating to any matter in question therein. The Court cannot disallow the party to produce documents only on the ground that the party did not ask for discovery. The object of this procedure is two fold. It is to secure that all material documents are disclosed by putting the opposite party on oath as to the documents in his possession. It is also to put an end to what might otherwise lead to protracted trial. It is to save expense and time and to shorten litigation. Rule 12 leaves a clear discretion with the Court to make such order either generally or limited to certain classes of documents as may in its discretion is thought fit.