LT-JAN-2013

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* Accused cannot be convicted on moral considerations

* Conviction cannot be based simply on the post-mortem report

* Directors of company cannot be prosecuted alone

* Don't stay corruption
cases mechanically: SC

* Prosecution on basis of successive dishonour of cheque, permissible

* Widow received provident fund, claim for family pension denied

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LT-JAN-2013

  1. 1. NEED OF THE HOUR The year 2012 saw many new developments and happenings in every sphere of the Indian polity. On 22nd July Mr. Pranab Mukherjee was elected as India's 13th President and on 10th August Mr. Hamid Ansari was re-elected consecutively the second Vice-President of India after Dr. Sarvepalli Radhakrishnan. The corruption in the government and the allied bodies acquired greater dimensions with the spilling over of the 2G scam to this year as well. On 2nd February the Supreme Court cancelled all 122 licences given by A. Raja in 2G spectrum scam and on 5th February the Special CBI court dismissed Subramanian Swamy's petition to prosecute Home Minister P. Chidambaram in 2G scam. The disclosures by Mr. Arvind Kejriwal on misallocation of land to many public figures and stashing away of their unaccounted moneys at Geneva; also brought to limelight the parasite commodities like vegetables; added to the woes of the general public. The country witnessed internal strife to a great extent due to the outbreak of Mao clashes in the Kokrajhar area which spread to many parts of India. On the other hand the infamous terrorist, Ajmal Kasab was finally hanged on 22nd November, 2012. Internationally, the re-election of Barack Obama to US President ship, brought in more stringent rules and regulations regarding jobs for expatriates in the US. India displayed a major improvement in sport by bagging 2 silver and 4 bronze medals. On the legal front many new developments took place: The Copyright (Amendment) Bill, 2010 ('Copyright Bill') was passed by both houses of parliament and now awaits presidential assent to become effective as law. "The Judicial Standards and Accountability Bill, 2010" was allowed by a bench of Chief Justice of India (CJI) Altamas Kabir, justices SS Nijjar and J Chelameswar. The bench stayed a May 2012 Delhi High Court order that suspended a government rule requiring Supreme Court and High Court Judges to inform the home and external affairs of their foreign trips. In wake of such proactive and progressive decisions, the common man in India is re-assured that despite many hurdles and disturbances, the nation is heading in the right direction. The need of the hour is a corruption-free government and a healthy economy favouring the growth of all the sectors. We at LAWTELLER, wish a very Happy New Year 2013 to all our subscribers and readers. Let us forge this association stronger to a greater degree and be partners in the expansion of legal awareness in India. EDITOR
  2. 2. 2 LAWTELLER 2013 GENERAL CANDIDATE CANNOTASK COURT TO RELAX THE ELIGIBILITY CRITERIA FORADMISSION TOACOURSE 15.12.2007, explained that the College cannot participate in the admission procedure and cannot giveconsentfortakingthestudentsfromtheRPMT- 2008 till the College received the clearances from the MCI.Thereafter, the inspection report in respect of the College was considered by the Executive Committee of the MCI on 12.5.2008 and the MCI decided to recommend to the Government of India to issue the permission letter for establishment of the College with an annual intake of 150 students fortheacademicyear2008-2009.TheGovernment of India, Ministry of Health and Family Welfare, however, took a decision not to grant permission for establishment of the College for the academic year 2008-2009 and communicated this decision in its letter dated 4.8.2008 to the Chairman and Managing Trustee of the Geetanjali Foundation. Aggrieved, the College filed Writ Petition (C) No. 357 of 2008 before Supreme Court underArticle 32 of the Constitution of India and on 3.9.2008 Supreme Court disposed of the writ petition after recording the statement of the learned Additional Solicitor General that the revised orders will be passed by the Government of India within a week inrespectoftheCollege.Intheorderdated3.9.2008 disposing of the writ petition of the College, Supreme Court further observed that the College may complete the admissions by 30.9.2008 in accordance with the rules and procedure laid down for the purpose of admissions. The Government of India, Ministry of Health and Family Welfare, then issued a permission letter dated 16.9.2008 for establishmentoftheCollegewithandannualintake capacity of 150 students with prospective effect from the academic year 2008-2009 under Section 10A of the Indian Medical Council Act, 1956. In this permission letter dated 16.9.2008, it was inter alia stipulated that the admission process for the academic year 2008-2009 has to be completed by the College within the time schedule indicated in the Regulations on Graduate Medical Education, 1997 made by the MCI. The College by its letter dated 25.9.2008 requested THE SECRETARY MEDICAL EDUCATION, GOVERNMENT of Rajasthan, held a meeting on 4.12.2007 for the purpose of conducting a common entrance test for admission to the Medical and Dental Colleges in the State of Rajasthan for the academic year 2008-2009. Besides the Secretary, Medical Education, Government of Rajasthan, the Registrar, Rajasthan Medical University of Health Sciences, Jaipur, Professor AnatomyofMedicalCollege,Jaipur, SpecialOfficer, Technical Education Department, Government of Rajasthan, representative from the Federation of Private Medical and Dental Colleges of Rajasthan, Jaipur, Managing Director, Geetanjali Medical College. Udaipur Managing Director, National Institute of Medical Sciences, Jaipur, were also present in the meeting. Geetanjali Medical College and Hospital (the College) was yet to receive its permission from the Government of India and affiliation from the Rajasthan University of Medical Sciences and on 12.12.2007, the Chairman and ManagingTrusteeoftheGeetanjaliFoundationShri JagdishPrasadAgarwalgaveawrittenundertaking that the College will admit the students to the MBBS course only after getting permission from the Government of India and after getting affiliation from the Rajasthan University of Medical Sciences. Anothermeetingfortheaforesaidpurposewasheld under the Chairmanship of the Secretary, Medical Education on 15.12.2007 and at this meeting it was decided that students will be made available for 85% of the seats in the medical colleges in the State of Rajasthan through the Rajasthan Pre- MedicalTest2008(RPMT-2008),andtheremaining 15% seats of the colleges will constitute NRI quota which will be filled by the colleges. The representative of the College did not participate in the meeting on the ground that inspection of the College by the Medical Council of India (MCI) was going on. The Director of the College in his letter dated 18.12.2007 to the Secretary, Medical Education, Government of Rajasthan, while expressing his inability to attend the meeting on
  3. 3. 32013 LAWTELLER the President, Federation of Private Medical and Dental Colleges of Rajasthan to allot students to the College by conducting counseling and the Collegealsoissuedanadvertisementon26.9.2008 inleadingnewspapersinvitingapplicationsfromthe candidates for admission counseling to the first year MBBS course for the academic year 2008- 2009 on the basis of PC-PMT/10+2 examination with minimum 50% marks in Physics, Chemistry andBiologyasperregulationsoftheMCIandstated in the advertisement that the last date of receipt of the applications would be 28.9.2008 and the candidate will be selected on the basis of merit. Aftercounseling,outofthe150seatsoftheCollege in first year MBBS course, 16 seats were filled up by students from PC-PMT conducted by the Federation of Private Medical and Dental Colleges of Rajasthan and 101 seats were filled up from amongst candidates who had passed the 10+2 examination and 23 seats of the NRI quota were filled up by the College. Someofthecandidateswhowereselectedthrough the RPMT-2008 and placed in the waiting list of candidates for admission to the MBBS seats in the medical colleges in the State of Rajasthan filed eightwritpetitionsbeforetheRajasthanHighCourt, Jaipur Bench, contending that they were entitled to be admitted to the seats of the College in the first year MBBS course on the basis of their merit in the RPMT-2008 and praying for a direction to the College to consider and give them admission in the MBBS course in the College against the 85% seats of the 150 seats on the basis of their merit in RPMT-2008 by holding counseling and further praying that no one should be admitted against the150seatsfromanysourceotherthantheRPMT- 2008. The learned Single Judge of the High Court, who heard the writ petitions, initially passed an interim order on 29.9.2008 directing that ten seats intheCollegewillbereservedforthewritpetitioners. The learned Single Judge of the High Court thereafter passed the final order on 18.3.2009 holding that the RPMT-2008 was conducted in accordance with Regulation 5 of the Regulations on Graduate Medical Education, 1997 made by the MCI (the MCI Regulations) as well as in accordance with Ordinance 272 (IV) and the policy of the State Government and the College could not have admitted candidates to the 85% of the seats in the MBBS course as per its own choice at the cost of meritorious students placed in the waiting list of candidates found successful in the RPMT- 2008. The learned Single Judge of the High Court thus allowed the writ petitions and declared that the admissions made by the College in MBBS course for the academic year 2008-2009 against 85% of the seats were illegal and directed the State to hold counseling from the waiting list of students of RPMT-2008 and further directed that the writ petitioners will be given admission as per their merit position in the waiting list and the process be completedbeforethecommencementoftheRPMT- 2009.Thefinalorderdated18.3.2009ofthelearned Single Judge was challenged by the College as well as the students who were admitted by the College in Special Appeals before the Division Bench of the High Court.All these SpecialAppeals were heard by a Division Bench of the Rajasthan High Court, Jaipur Bench, but dismissed by a common order dated 3.9.2009. Aggrieved, the students who had been admitted into the college have filed special leave petitions and that the college has also filed separate special leave petition. The Supreme Court accepted the appeals and modified the orders passed by the High Court. The court directed that the admission of six students in the MBBS course should not be disturbed subject to the condition that each of the six students pay to the State Government Rs. 3 lacsfordevelopmentofinfrastructureofgovernment medical colleges within a period of three months failing which they will not be allowed to take the final examination and their admission will be cancelled. The Supreme Court also directed that the College will surrender six seats in the MBBS coursefortheacademicyear2012-2013totheState GovernmenttobefilleduponthebasisoftheRPMT or any other common entrance test conducted by the State Government of Rajasthan or its agency for admission to the MBBS Course and the fee that will be payable by the students admitted to the six seats will be the same as payable by the students admitted on the basis of RPMT or another common entrance test conducted by the State Government or its agency.
  4. 4. 4 LAWTELLER 2013 The operative part of the judgement read as under : The College is a private unaided professional institution and it has been held by this Court in T.M.A. Pai Foundation (supra) that a private unaided professional institution has a fundamental right under Article 19(1)(g) of the Constitution of India to establish and administer an educational institution and such right will include the right to admit students into the institution. TTTTTTT In the absence of a consensual arrangement between the College and the State Government, the College was not under any legal obligation to admit students to 85% of the MBBS seats in the academic years 2008-2009. TTTTTTT TheobservationsinT.M.A.PaiFoundation(supra) make it clear that students seeking admission to a professional institution were required to be treated fairly and preferences were not to be shown to less meritorious but more influential students and greater emphasis was required to be laid on the merit of the students seeking admission. It has been further made clear that merit is to be determined for admission to professional colleges, by either the marks that the student obtains at the qualifying examination, or by a common entrance test conducted by the institution, or in the case of professional colleges, by government agencies. TTTTTTT In P.A. Inamdar (supra), this Court has taken the view that all institutions imparting same or similar professional education can join together for holding a common entrance test satisfying the triple tests of the admission procedure being fair, transparent and non-exploitative. TTTTTTT The stand of the College, however, is that the College had published an advertisement dated 26.9.2008 inviting applications from all the eligible candidateswhohadpassedthe10+2examination with minimum 50% marks in Physics, Chemistry and Biology individually in all the subjects and having English as compulsory subject for admission to its MBBS course and in response to such advertisement, students had applied and selection of students was done on the basis of their merits. It is however, not disputed that the candidates, who had applied in response to the advertisement, had not passed the 10+2 examination from the same board or university but from different boards and universities. If that be so, the merit of the candidates who had applied in response to the advertisement could not be evaluated by a uniform standard and could only be evaluated by a competitive entrance examination of all these students who had applied pursuant to the advertisement of the College. It is not the case of the College that any competitive entrance examination of all the students, who had applied pursuant to the advertisement, was held by the College to determine their comparative merit. Hence, the principle of merit as the basis for selection for admission in the professional courses laid down by this Court in T.M.A. Pai Foundation (supra) and as explained in P.A. Inamdar(supra)hasnotbeenfollowed.Thus,even as per the law laid down by this Court in T.M.A. Pai Foundation and P.A. Inamdar (supra), the College has not been able to establish that the admissions of 117 students to its MBBS course for the academic year 2008-2009 were within its right under Article 19(1)(g) of the Constitution. TTTTTTT Moreover, the College was bound to follow the MCI Regulations while making the admissions to the MBBS seats. The permission letter dated 16.9.2009 stipulated that the admission process for the academic year 2008-2009 has to be completed within the time schedule indicated in the MCI Regulations. Hence, even if the College was required to complete the admission process by 30.9.2008, it could not violate the MCI Regulations on the ground that it had to complete the admission process by 30.9.2008. TTTTTTT It will be clear from the provisions of Regulation 5 quoted above that the selection of students to medical college is to be based solely on merit of the candidate and for determination of the merit, the criteria laid down in Clauses (1), (2), (3) and (4) will apply. Clause (2) of Regulation 5 on which the MCI relied upon clearly states that in States havingmorethanoneUniversity/Board/Examining
  5. 5. 52013 LAWTELLER Body conducting the qualifying examination a competitive entrance examination should be held so as to achieve a uniform evaluation as there may be variation of standards at qualifying examinations conducted by different agencies. It is not the case of the College that all students who applied pursuant to the advertisement had passed 10+2 Examinations conducted by one and the same University/Board/Examining Body. Hence, the merit of the students who had applied pursuant to the advertisement of the College had to be uniformly evaluated by a competitive entrance examination, but no such competitive entrance examination had been held by the College between all the candidates who had applied pursuant to the advertisement. Therefore, there was a clear violation of Clause (2) of Regulation 5 of the MCI Regulations in admitting the 101 students to the MBBS Course for the academic year 2008-2009 by the College. TTTTTTT The College must suffer some penalty as a deterrent measure so that it does not repeat such violation of the MCI Regulations in future. Moreover, if no punitive order is passed, other colleges may be encouraged to violate the MCI Regulations with impunity. There were 117 admissions contrary to the provisions of clause (2) of Regulation 5 of the MCI Regulations. The learned Single Judge of the High Court had directed ten seats to be kept vacant for the academic year 2008-2009 and we are told that those ten seats kept vacant have not been filled up and the College has not received any fees for the ten seats. Excluding these ten seats in a phased manner, not more than ten seats in each academic year beginning from the academic year 2012-2013. These 107 seats will be surrendered to the State Government and the State Government will fill up these 107 seats on the basis of merit as determined in the RPMT or any other common entrance test conducted by the State Government or its agency for admissions to Government Medical Colleges and the fees of the candidates who are admitted to the 107 seats will be the same as fixed for the Government Medical Colleges. TTTTTTT The 117 students, who were admitted to the MBBS course, may not be at fault, but they are beneficiaries of violation of clause (2) of Regulation 5 of the MCI Regulations by the College.TheyhavegotadmissionintotheCollege without any proper evaluation of their merit vis-à- vis the other students who had applied but had not been admitted in a competitive entrance examination. We have held in Priya Gupta v. State of Chhattisgarh & Ors. (supra) that beneficiaries of admissions made contrary to the MCI Regulations must pay some amount for development of infrastructure in the medical college of the government as a condition for allowing them to continue their MBBS studies by our orders under Article 142 of the Constitution. We, therefore, hold that each of the 117 students who have been admitted in the MBBS seats in the College will pay Rs. 3 lacs to the State Government on account of their admission in violation of clause (2) of Regulation 5 of the MCI Regulations and the total amount received by the State Government from the 117 students will be spent for improvement of infrastructure and laboratories in the Government Medical Colleges of the State and for no other purpose. TTTTTTT We do think that we can hold that because of the order dated 26.5.2009 passed by the learned Single Judge of the High Court in S.B. Civil Writ Petition Nos. 13419 of 2008, 10350 of 2008 and 11165 of 2008, which had attained finality, the MCI could not have issued the order dated 4.2.2010 discharging the six students from the MBBS Course on the ground that they had not been selected in the RPMT-2008 and that their admissions were in breach of the provisions of clause (2) of Regulation 5 of the MCI Regulations. TTTTTTT We cannot also accept the contention of the appellants that the College could admit students on the basis of marks obtained by them in the qualifying examinations under Clause (1) of Regulation 5 of the MCI Regulations. The College has relied upon the letter dated 16.9.2009 of the Secretary of the MCI clarifying that for the purpose of completing the admissions within the time schedule fixed by the Court as in the case of Mirdul Dhar and Another vs. Union of India and Others (supra), i.e., 30th September of the year,
  6. 6. 6 LAWTELLER 2013 the admission to the MBBS course could be done on the basis of marks secured in 10+2 Examination, as provided in Regulation 5(1) of the MCI Regulations. But a reading of Regulation 5(1) of the MCI Regulations quoted above would show that this provision applies only in a State where one university or board or examining body conducts the qualifying examination, in which case, the marks obtained at such qualifying examination may be taken into consideration. In the State of Rajasthan, there are more than one university/board/examining bodies conducting qualifying examination and therefore Regulation 5(1) of the MCI Regulations does not apply. As the State of Rajasthan has more than one University/Board/Examining Bodies conducting qualifying examinations, clause (2) of Regulation 5 of the MCI Regulations, which provides that a competitive entrance examination will have to be held so as to achieve a uniform evaluation, will apply. The College, therefore was bound to hold a competitive entrance examination in accordance with clause (2) of Regulation 5 of the MCI Regulations or enter into a consensual arrangement with the State Government to admit students on the basis of the Competitive Entrance ExaminationconductedbytheStateGovernment. This is exactly what the College has done. It had entered into a consensual arrangement with the State Government to admit students on the basis of merit as determined in the RPMT-2008. The clarification in the letter dated 16.9.2009 of the Secretary of the MCI that for the purpose of admissions within the time schedule fixed by this Court, admission can also be made on the basis of marks secured in the 10+2 Examination as providedinRegulation5(1)oftheMCIRegulations is not in accord with the fact situation in State of Rajasthan. The admission of the six students by the College to its MBBS Course on 30.9.2008 was, therefore, in breach of clause (2) of Regulation 5 of the MCI Regulations. TTTTTTT The violation of clause (2) of Regulation 5 of the MCI Regulations is by the College. The case of the MCI is not that the six students were not eligible for admission to the MBBS Course in accordance with the eligibility criteria laid down in Regulation 4 of the MCI Regulations, but that they have not been selected in the RPMT-2008, which was the competitive entrance examination conducted in accordance with clause (2) of Regulation 5 of the MCI Regulations. Moreover the six students had got admission to the MBBS course not on the basis of their merit determined in the RPMT-2008 in accordance with clause (2) of Regulation 5 of the MCI Regulations, but on the basis of their marks in the 10+2 and thus they were beneficiaries of the violation of clause (2) of Regulation 5 of the MCI Regulations. TTTTTTT We invoke our powers under Article 142 of the Constitution and direct that he admission of the 6 students in the MBBS Course will not be disturbed subject to the condition that each of the 6 students pay to the State Government Rs. 3 lacs for development of infrastructure of government medical colleges within a period of three months from today failing which they will not be allowed to take the final MBBS examinations and their admission will be cancelled. Considering however the fact that the College has violated the provisions of clause (2) of Regulation 5 of the MCI Regulations as a deterrent measure to prevent similar breach of the MCI Regulations in future, we direct that the College will surrender six seats in the MBBS course for the academic year 2012-2013 to the State Government to be filled up on the basis of the RPMT or any other common entrance test conducted by the State Government of Rajasthan or its agency for admission to the MBBS Course and the fee that will be payable by the students admitted to the six seats will be the same as are payable by the students admitted on the basis of RPMT or another common entrance test conducted by the State Government or its agency. TTTTTTT Authorities relied upon : 2010 (10) SCC 233, 2005 (13) SCC 704, 1987 (4) SC 29, 1986 (2) SCC 667, 1986 (Suppl.) SCC 740. Reference : Supreme Court. Rajan Purohit & Ors. v. Rajasthan University of Health Science & Ors., civil appeal nos. 8142-8144 of 2011. —————
  7. 7. 72013 LAWTELLER GENERAL CAUSE OF ACTION IN TWO SETS OF SUITS BEING SAME, BAR OF ORDER 2 RULE 2 APPLIES the plaintiff that in respect of the same suit property it had earlier filed suit Nos. C.S. 831 and 833 of 2005 seeking the relief of permanent injunction. As the time for performance of the agreements of sale had not elapsed when C.S. No. 831 and 833 of 2005 were instituted and the plaintiff was "under the bonafide belief that the defendants would perform the agreement" the relief of specific performance was not claimed in the aforesaid suits. However, inspite of a legal notice issued to the defendants on 24.2.2006, the sale deeds had not been executed by the defendant the latter suits i.e. O.S. Nos. 202 and 203 were instituted. While the matter was so situated the defendant in both the suits i.e. the present petitioner, moved the Madras High Court by filing two separate applications under Article 227 of the Constitution to strike off the plaints in O.S. Nos. 202 and 203 of 2007 on the ground that the provisions contained in Order II Rule 2 of the Civil Procedure Code, 1908 (CPC) is a bar to the maintainability of both the suits. Before the High Court the defendant had contended that the cause of action for both sets of suits were the same, namely, the refusal or reluctance of the defendant to execute the sale deeds in terms of the agreements dated 27.7.2005. Therefore at the time of filing of the first set of suits i.e. C.S. Nos. 831 and 833 of 2005, it was open for the plaintiff to claim the relief of specific performance. The plaintiff did not seek the said relief nor was leave granted by the Madras High Court. In such circumstances, according to the defendant- petitioner, the suit filed by the plaintiff for specific performance i.e. O.S. Nos. 202 and 203 were barred under the provisions of Order II Rules 2 (3) of the CPC. The High Court, on consideration of the cases of the parties before it, took the view that on the date of filing of C.S. Nos. 831 and 833 of 2005 the time stipulated in the agreements between THE RESPONDENTS IN THE TWO APPEALS, FILED CIVIL suit no. 831 of 2005 and 833 of 2005 before the Madras High Court seeking a decree of permanent injunction restraining the appellant (defendant) from alienating, encumbering or dealing with the plaint schedule properties to any other third party other than the plaintiff. The aforesaid relief was claimed on the basis of two agreements of sale entered into by the plaintiffs and the defendant both on 27.7.2005 in respect of two different parcels of immovable property consisting of land and superstructures built on plot No. 65 (old No. 43) and plot No. 66 (old No. 42), Second Main Road, Ambattur Industrial Estate, Chennai. In each of the aforesaid suits the plaintiff had stated that under the agreements of sale different amounts were paid to the defendants, yet, on the pretext that restrictions on the alienation of the suit land were likely to be issued by the Central Excise Department on account of pending revenue demands, the defendants were attempting to frustrate the agreements in question. In the suits filed by the plaintiff it was also stated that as the period of six months fixed for execution of the sale deeds under the agreements in question was not yet over, the plaintiff is not claiming specific performance of the agreements. The plaintiffs, accordingly, sought leave of the court to omit to claim the relief of specific performance with liberty to sue for the said relief at a later point of time, if necessary. The two suits in question, i.e. C.S. Nos. 831 and 833 of 2005 were filed by the plaintiff on 28.8.2005 and 9.9.2005 respectively. Thereafter on 29.5.2007, O.S. Nos. 202 and 203 were filed by the plaintiff in the Court of the District Judge, Tiruvallur seeking a decree against the defendant for execution and registration of the sale deeds in respect of the same property and for delivery of possession thereof to the plaintiff. In the aforesaid latter suits it was mentioned by
  8. 8. 8 LAWTELLER 2013 the parties for execution of the sale deeds had not expired. Therefore, the cause of action to seek the relief of specific performance had not matured. According to the High Court it is only after filing of the aforesaid suits and on failure of the defendants to execute the sale deeds pursuant to the legal notice dated 24.2.2006 that the cause of action to seek the aforesaid relief of specific performance had accrued. The High Court, accordingly, took the view that the provisions of Order II Rule 2 (3) of the CPC were not attracted to render the subsequent suits filed by the plaintiff i.e. O.S. Nos. 202 and 203 non- maintainable. The High Court also took the view that the provisions of Order II Rule 2(3) of the CPC would render a subsequent suit not maintainable, only, if the earlier suit has been decreed and the said provisions of the CPC will not apply if the first suit remains pending. In arriving at the aforesaid conclusion the learned Single Judge of the High Court considered himself to be bound by the decision of a Division Bench of the same High Court in the case of R. Vimalchand and M. Ratanchand v. Ramalingam, T. Srinivasalu & T. Venkatesaperumal [2002 (3) MLJ page 177]. The High Court also held that though the application filed by the defendant under Article 227 of the Constitution was not maintainable as the defendant had the remedy of approaching the learned trial court under Order VII Rule 11 of the CPC, yet, in view of the elaborate discussions that have been made and findings and conclusions recorded it would be appropriate to decide the issues raised on merits. Against the judgement of the High Court special leave petition was filed. The Supreme Court accepted the appeals, set aside the judgement and order 6.10.2009 was passed by the High Court of Madras in C.R.P.PD No. 3758 and 3759 of 2007. Consequently, the Supreme Court struck off the plaint in O.S. Nos. 202 and 203 of 2007 on the file of the District Judge, Thiruvallur. The operative part of the judgement read as under : In the instant case though leave to sue for the relief of specific performance at a later stage was claimed by the plaintiff in C.S. Nos. 831 and 833 of 2005, admittedly, no such leave was granted by the Court. TTTTTTT A reading of the plaints filed in C.S. Nos. 831 and 833 of 2005 show clear averments to the effect that after execution of the agreements of sale dated 27.7.2005 the plaintiff received a letter dated 1.8.2005 from the defendant conveying the information that the Central Excise Department was contemplating issuance of a notice restrainingalienationoftheproperty.Theadvance amounts paid by the plaintiff to the defendant by cheques were also returned. According to the plaintiff it was surprised by the aforesaid stand of the defendant who had earlier represented that it had clear and marketable title to the property. The plaintiff, seriously doubted the claim made by the defendant regarding the proceedings initiated by the Central Excise Department. In the plaint it was averred by the plaintiff that the defendant is "finding an excuse to cancel the sale agreement and sell the property to some other third party." In the aforesaid paragraph of the plaint, it was further stated that "in this background, the plaintiff submits that the defendantisattemptingtofrustratetheagreement entered into between the parties." TTTTTTT On the dates when C.S. Nos. 831 and 833 of 2005 were instituted, namely 28.8.2005 and 9.9.2005, the plaintiff itself had claimed that facts and events have occurred which entitled it to contend that the defendant had no intention to honour the agreements dated 27.7.2005. In the aforesaid situation it was open for the plaintiff to incorporate the relief of permanent injunction that formed the subject matter of above two suits. The foundation for the relief of permanent injunction claimed in the two suits furnished a complete cause of action to the plaintiff in C.S. Nos. 831 and 833 to also sue for the relief was omitted and no leave in this regard was obtained or granted by the Court. TTTTTTT A suit claiming a relief to which the plaintiff may become entitled at a subsequent point of time, though may be termed as premature, yet, can not per se be dismissed to be presented on a
  9. 9. 92013 LAWTELLER future date. There is no universal rule to the above effect inasmuch as "the question of a suit being prematuredoesnotgototherootofthejurisdiction of the Court" as held by this Court in Vithalbhai (P) Ltd. v. Union Bank of India (supra). There is no provision in the Specific Relief Act, 1963 requiring a plaintiff claiming the relief of specific performance to wait for expiry of the due date for performanceoftheagreementinasituationwhere the defendant may have made his intentions clear by his overt acts. TTTTTTT Order II Rule 2 of the CPC seeks to avoid multiplicity of litigations on same cause of action. If that is the true object of the law, on which we do not entertain any doubt, the same would too stand fully subserved by holding that the provisions of Order II Rule 2 of the CPC will apply only if the first suit is disposed of and not in a situation where the second suit has been filed during the pendency of the first suit. Rather, Order II Rule 2 of the CPC will apply to both the aforesaid situations. TTTTTTT Authorities relied upon : 2002 (3) MLJ page 177, AIR 1964 SC 1810, AIR 1954 BOM 125, 1894 ILR (16)AII 165. Reference : Supreme Court. M/s Virgo Industries (Eng.) P. Ltd. v. M/s. Venturetech Solutions P. Ltd., civil appeal no. 6372 of 2012 (from the Judgement and Order dated 6.10.2009 of the Hon'ble High Court of Judicature at Madras in C.R.P.PD No. 3758 of 2007). ————— SERVICE WIDOW RECEIVED PROVIDENT FUND, CLAIM FOR FAMILY PENSION DENIED RAJASTHAN ROADWAYS UNION (THE RESPONDENT) raised a claim on behalf of thewidowoflateHariSinghforfamilypensionunder the Scheme before the State Government. The StateGovernmentreferredthemattertotheLabour and Industrial Tribunal, Jaipur (Tribunal) for adjudication of the claim. The Tribunal, after examining the Scheme, took the view that the employee was not informed of his right to exercise the option under the Scheme, consequently, allowed the application and gave a direction to the appellant-Corporation to disburse family pension to the widow of Hari Singh, who was working as a Driver in the service of the Corporation. The appellant-Corporation took up the matter before the High Court of Judicature of Rajasthan at Jaipur Bench by filing S.B. Civil Writ Petition No. 2099 of 1999, which was dismissed by the learned Single Judge and, later, confirmed by the Division Bench as well as vide its judgement dated 29.6.11 in D.B. Civil Special Appeal (Writ) No. 960 of 2011. Against the judgement of the High Court special leave petition was filed. The Supreme Court accepted the appeal, set aside the award of the Tribunal as well as judgement of learned single Judge and the Division Bench of the High Court. The operative part of the judgement read as under : When we read the notification dated 9.4.1971 issued by the Regional Provident Fund Commissioner along with the communication letter dated 30.7.1971 issued by the appellant- corporation, it is evident that the Regional Provident Fund Commissioner as well as appellant-Corporation had informed all the departments/unions, as well as employees working under the Corporation to exercise their necessary option if they wanted to get the benefit of the Family Pension. Facts would indicate that several employees at that time had opted and few of them did not opt for that, since they were interested to get provident fund under the CPF Scheme and not the family pension under the Scheme, after the death of the employee. We have no reason to think that the employees were unaware of the notification issued by the Regional Provident Fund Commissioner as well as the
  10. 10. 10 LAWTELLER 2013 Corporation Facts would also indicate that the wife of Hari Singh had already received the entire provident fund amount and, since Hari Singh had not opted under the Scheme. However, after nine years, respondent Union is raising a dispute which, in our view, in absolutely untenable. The Tribunal as well as Courts below have committed a grave error in not properly appreciating the facts of the case and rendered a perverse finding which necessarily calls for interference. Reference : Supreme Court. Rajasthan State Road Transport Corporation v. President, Rajasthan Roadways Union & Another, civil appeal no. 6639 of 2012. ————— BUSINESS FINANCERS TOLD TO OFFER AFRESH BENEFITS OF OTS ORISSASTATE FINANCIALCORPORATION (OSFC) 2ND respondent herein, disbursed a term loan of Rs. 51,27,200/- and loan in lieu of subsidy of Rs. 23.30 lakhs to 1st respondent (M/s Hotel Torrento Ltd.) for establishing a hotel project at Janugarji, Balasore in the State of Odisha. The project was jointly financed by OSFC and IPICOL, for which 1st respondent had entered into a loan agreement and mortgaged the title deeds and extended a registered lease deed dated 8.2.1988. Lease was valid for a period of 25 years with a renewable clause. There was default in repayment of the loan amount, which led OSFC issuing a demand notice to 1st respondent on 7.2.1991, followed by a recall notice dated 30.11.1991. The respondent was also served with a show cause notice dated 16.12.1994 followed by recall notices dated 4.1.1995 and 13.3.1996. 1st respondent then filed a Writ Application No. 2513of1996on20.3.1996beforetheHighCourtof Orissa to quash the recall notice dated 13.3.1996 and for rehabilitation. The High Court disposed of that writ application with a direction to respondents 2 and 5 (OSFC & IPICOL) to consider the request of 1st respondent for rehabilitation package. On 9.3.2006, an OTS scheme was introduced by OSFC and 1st respondent applied for settlement of its loan account under that scheme. On 18.3.2006, the benefit of the scheme was extended to 1st respondent by OSFC and agreed in principle to settle the term loan account on payment of Rs. 1,16,21,200/- on or before 18.4.2006, subject to certain terms and conditions which were as follows: 1. The settlement amount shall either be paid in one lump sum on or before Dt. 18.4.06 (within 30 days of this settlement order)with3%discountonthesettlement amount. OR Installments as per the sequence mentionedbelow: a) Up front payment of Rs. 23,61,400.00 (Rupees twenty three lakh sixty one thousand four hundred only) (i.e. 25% of settlementamountlessinitialdeposit)shall be paid along with the acceptance letter (formatenclosedherewith)onorbeforeDt. 16.4.06,within30days. b) The balance settlement amount of Rs. 87,15,900.00 (75%) shall be paid on or beforeDt.15.6.06. 2. Any other expenses chargeable/ incurred/debited in the loan accounts towardsmisc.expensesonL/Awitheffect fromDt.11.7.05(dateofapplication)tillthe final settlement of loan accounts shall be paid by you along with the settlement amount. 3.Itmaybenotedthat(NDC)canonlybe issuedinyourfavourafterliquidationofall theloansavailed. 4. You shall have to submit the consent/ decree/permission/withdrawal order (whereverapplicable)beforeissueofNoDue Certificate(NDC). Incaseoffailureofpaymentoftheaforesaid
  11. 11. 112013 LAWTELLER amountwithinthestipulateddates,theone timesettlementofduesconsideredinyour favour including relief and concession thereonshallbewithdrawnwithoutfurther referencetoyou. IPICOL also approved the request for OTS at Rs. 45 lacs with waiver of Rs. 1,88,21,099 subject to certaintermsandconditions,whichwereasfollows: (a)TheOTSamountisRs.45lacs(Rupees forty-five lacs only) and the resultant sacrifice(s) by way of waiver is Rs. 1,88,21,099(Rupeesonecroretwelvelakhs seventeenthousandfivehundredtwenty nineonlyonaccountoffundedinterestand Rs.76,03,570/-(Rupeesseventysixlakhs threethousandfivehundredseventyonly) onaccountofoverdueinterest. (b)TheOTSamountshallbepaidwithina periodof1yearfromthedateofthisletter aspertheschedulegivenbelow: Rs. 6,75,000 towards 25% of upfront payment (including initial payment made by you) within 30 days and balance 75% amounting to Rs. 33,75,000/- within a periodof1yearin4quarterlyinstallments, carrying simple interest @ 14% p.a. on reducingbalance. (c)TheaboveOTSissubjecttocancellation, ifitisfoundthatyouhaveprovidedincorrect details and information or suppression of anymaterialfactsforgettingthesanction of OTS. The decision of IPICOL is final in thisregard. (d) In case of non payment, IPICOL shall havetherightofrequital. The Supreme Court notice that despite of waiver of Rs. 2,26,85,800 and Rs. 1,88,21,099 by OSFC and IPICOL respectively, 1st respondent did not comply with the terms and conditions of the OTS scheme, consequently, OSFC and IPICOL informed 1st respondent that they had withdrawn OTSoffer. TheSupremeCourtfinds,on31.3.2007,yetanother OTS scheme of 2007 was launched by OSFC and, again, an offer was made to 1st respondent to avail of the benefit of that scheme, OSFC, on 4.10.2007, requested 1st respondent to pay the settlement amount of Rs. 1,16,21,200 with delayed payment of interest within 10 days. 1st respondent did not comply with that request as well, consequently, OSFC, on 28.12.2007, withdrew the offer and advised 1st respondent to pay the entire dues as per the agreement, failing which 1st respondent was informed that recovery proceedings would be initiated for realization of the dues. Later, OSFC sent a demand notice dated 22.8.2008 stating that the total loan outstanding as on 31.12.2007 was Rs. 4,52,94,691 and 1st respondent was called upon to pay the amount, failing which it was informed the recovery proceedings would be initiated. 1st respondent then, on 10.9.2008, filed a Writ Petition No. 13376 of 2008 before the Orissa High Court to quash the demand notice dated 22.8.2008 and for a direction to consider its claim under the OTSscheme.On31.10.2008,OSFChad,however, issued a notice recalling the entire amount along with interest and informed 1st respondent that in case of failure to make payment, further action would be taken under Section 29 of the State Financial CorporationAct (SFCAct). Writ Petition came up for hearing before the Orissa High Court on 4.12.2008, and the Court directed OSFC to maintain status-quo and on 7.4.2010, the Court passedanad-interimorderdirecting1strespondent to inform as to whether they were willing to deposit the amount of Rs. 1 Crore for consideration of their claimunderOTS.On26.11.2008,IPICOLalsomade a request to OSFC to initiate proceedings under Section 29 of SFCAct and to take over the assets of the unit. Writ Petition No. 13376 of 2008 came up for final hearing on 21.4.2010, and the Court enquired whether 1st respondent was willing to pay Rs. 1 Crore, as suggested by the Court on 4.12.2008. The Court was informed that a petition had been filed on 21.4.2010 along with a bank draft of Rs. 17,50,000 drawn in favour of the Registrar, Orissa High Court. 1st respondent had also made a request to the Court for time up to 26.2.2010 so as topaytheamountofRs.1Crore.TheCourtordered the return of the draft to the 1st respondent since the amount was due to both OSFC and IPICOL. The Court was informed by OSFC that 1st respondent had not availed of the earlier proposal for OTS and no new OTS scheme was available,
  12. 12. 12 LAWTELLER 2013 still the Court passed the following order: ThelearnedcounselfortheCorporations submits that the earlier proposal for one- time settlement had been considered by boththeCorporationsandthematterhad beensettled.Butthepetitionerdidnotpay theamountforwhichithadtobecancelled and,atpresentthereisnoschemeforone- time settlement. Be that as it may, the Petitioner having defaultedinpaymentofthehugeamount wedisposeofthewritpetitiondirectingthat the petitioner may deposit a sum of Rs. 50,00,000/-(Rupeesfiftylakhs)eachbefore eachofthetwoCorporationsby20.6.2010 andapplicationsshallbefiledbeforeboth theCorporationforsettlementofthedues. If any such application is filed the same shallbeconsideredonitsownmeritbyboth theCorporationseitherseparatelyorjointly providedthereisanyschemeavailablefor suchsettlementbytheCorporations. Intheevent,thePetitionerfailstodeposit the aforesaid amount by 20.6.2010, both theCorporationsshallbeatlibertytotake suchactionaspermissibleunderlawunder theStateFinancialCorporationAct. 1st respondent did not comply with even the above mentioned order, OSFC then issued a registered notice dated 8.7.2010 to 1st respondent pointing that since it had failed to comply with the above mentioned order of the Court, OSFC would be at liability to initiate proceeding under the SFC Act. The 1st respondent was, therefore, asked to liquidate the entire outstanding amount as on 30.6.2010, failing which 1st respondent was informedthatOSFCwouldbeinitiatingactionunder Section 29 of SFC Act. Later, OSFC issued a seizure order dated 2.8.2010 of the property and that order was executed on 15.9.2010 and the possession of the unit was taken over "as is where is" basis. OSFC, during seizure, got prepared a valuation report dated 17.9.2010 from its panel value. Based upon that valuation report, offset price of the unit was fixed at Rs. 1,75,45,000. Later, the sale notice was published in the Daily newspapers,Aamaj and the New Indian Express on 18.9.2010. On 21.9.2010, again, OSFC issued a notice to 1st respondent to clear the outstanding dues with upto date interest of Rs. 6,18,62,238/- collected upto 30.6.2010 before Default-cum-DisposalAdvisory Committee (DDAC) on 29.9.2010 so also to get the assets released. 1st respondent was informed of the sale notice published in the daily newspapers requesting to clear up the dues before the DDAC meeting scheduled to be held on 29.9.2010. 1st respondent was also informed that in that event of non-payment of dues, it could still match or better the highest bid price. 1st respondent, however, did not take any steps to clear the outstanding dues, but preferred a Review Petition No. 99 of 2010 for reviewingtheorderpassedbytheOrissaHighCourt on 21.4.2010 in Writ Petition No. 13376 of 2008. TheCourtrejectedthereviewpetitionon22.9.2010. The Court, after noticing that 1st respondent had not deposited any amount in pursuance to its order dated 21.4.2010, held as follows: Apartfromtheabove,fromtheconductof thepetitioner,wefindthatthepetitionerdid notpayanyamountwhentheaccountwas settledundertheschemeearlierandwaited foranotherdemandnotice.Eveninthewrit petitionthoughthepetitionerwasdirected to deposit Rs. 50,00,000/- (Rupees fifty lakhs)eachwiththetwoCorporations,the samewasnotcompliedwith.Incourseof hearingofthisreviewpetition,thepetitioner hasofferedonlyRs.40,00,000/-(Rupees forty lakhs) to be deposited with the two Corporationsagainsttheoutstandingdues ofmorethansevencrore.Weare,therefore, oftheviewthatthepetitionerhasnointention to clear the dues of the two Corporations whichhadfinancedforestablishingahotel. In the meantime possession of the said hotel has been taken by OSFC under section29oftheStateFinancialCorporation Actandthesamehasbeenadvertisedfor sale.Thesalenotice,acopywhereofwas producedbeforeusshowsthattheloanee can appear before the DDAC on the date fixed i.e. 29th of September, 2010 for the purposeofgettingreleasetheseizedasset. 1strespondentthensubmittedaproposaltoDDAC, which was considered by DDAC on 29.9.2010 and
  13. 13. 132013 LAWTELLER theorderwascommunicatedtothe1strespondent. DDAC, in pursuance to the auction notification in the newspapers, received altogether 9 bids and, after negotiations with the auctioneers, the offer of the appellant was found to be the highest at Rs. 774 lacs, which was accordingly accepted OSFC delivered the possession of the land, building and machinery/furniture and fixture to the appellant vide possession letter dated 11.10.2010. 1strespondent,asalreadystated,thenapproached the Orissa High Court and filed the present writ petitionNo.17711of2010toquashthecancellation of the OTS dated 28.12.2007, sale letter dated 1.10.2010 and also for other consequential reliefs, which were granted by the Division Bench of the Orissa High Court, the operative portion of which reads as follows: For the reasons stated supra the writ petitionisallowed.Ruleissued.Theletters dated 28.12.2007 and 1.10.2010 (Annexure-5 & Annexure-8 series) canceling the proposal for OTS and rejecting the representation dated 29.9.2010, the public sale notice dated 19.9.2010 (Annexure-6), the sale letter dated1.10.2010(Annexure-8series),the sale agreement dated 11.10.2010 (Annexure-A/5)andtheallegeddeliveryof possession are hereby quashed. The Orissa State Financial Corporation and IPICOLaredirectedtoplacefreshdemand withthepetitioner,withinfourweeksfrom thedateofreceiptofthisorder,withregard to the amount of OTS offered in the communications dated 18.3.2006 and 3.4.2006 of the OSFC and IPICOL along with interest at the rate of 9% on the said amountfromthedatetillthedateofpayment or at the rate of interest, stipulated under theOTSScheme,2007incaseofsimilarly placedpersons.Thepetitionerisdirected tomakepaymentwithinsixweeksthereof. Thereafterthepossessionoftheproperty shallbedeliveredtothepetitionerwithina reasonable time. If the petitioner fails to deposittheamount,asdirected,theOSFC andIPICOLareatlibertytoproceedinthe matterinaccordancewithlaw. AgainstthejudgementoftheDivisionBenchspecial leave petition was filed. The Supreme Court accepted both the appeals and set aside the judgement of the Division Bench of Orissa High Court. The operative part of the judgement read as under : The above mentioned facts had considerable bearing for rendering a just and proper judgement in writ petition No. 17711 of 2010, but those vital facts were completely overlooked by the Division Bench and it had also ignored the binding judgement of the coordinate Bench rendered in writ petition No. 13376 of 2008 and the order passed in Review Petition No. 99 of 2010 and the steps taken by the Corporations as permitted by the Division Bench. TTTTTTT In this case, Corporation had issued the recall notice dated 8.7.2010 with a request to pay the entire outstanding dues within 30 days otherwise, failing which, it was stated that action under section 29 of SFC Act would be initiated against the 1st respondent. Seizure order was issued by the Corporation and the entire assets of the unit were taken over under Section 29 of the Act on 15.9.2010 which was after the expiry of 30 days from the date of notice dated 8.7.2010. TTTTTTT The procedure laid down under Section 29 of SFC Act has been followed by the Corporations. The independent valuer submitted his report on 17.9.2010 and the off-set price of the unit was fixed after getting it valued by an independent valuer. It was based upon the valuation report that the off-set price of the unit was fixed at Rs. 1,77,45,000/- on 17.9.2010. Sale notice was published in the News Papers on 18.9.2010 and the auction was conducted on 29.9.2010. In our view, the High Court has committed an error in holding that off-set price of property was not valued before the conduct of auction and that there was no due publication of auction. The Corporation before putting the appellant in possessionagainissuedanoticedated21.9.2010 to 1st respondent enquiring whether he would match the offer. 1st Respondent did not avail of
  14. 14. 14 LAWTELLER 2013 that opportunity as well. It is under such circumstances that sale letter dated 1.10.2010 was issued to the appellant with a copy to all the Directors/Promoters/Guarantors of 1st respondent company. The appellant paid the balance consideration of Rs. 5,65,20,000 on 11.10.2010 and the Sale Memo was extended on that date and the property was also delivered. TTTTTTT We find no illegality in the procedure adopted by the Corporation, since 1st respondent had failed to comply with the directions issued by the co- ordinate Bench of the Orissa High Court in writ petition No. 13376 of 2008, which gave liberty to the Corporations to proceed in accordance with Section 29 of SFC Act. We are of the view that the Division Bench of the High Court had overlooked those vital facts as well as the binding judgement of a co-ordinate Bench in writ petition No. 13376 of 2008 and had wrongly reopened a lis and issued wrong and illegal directions. TTTTTTT Reference : Supreme Court. M/s Micro Hotel P. Ltd. v. M/s Hotel Torrento Limited & Ors., civil appeal no. 6347 of 2012 [from the Judgement and Order dated 25.10.2011 of the Hon'ble High Court of Orissa at Cuttack in Writ Petition (Civil) No. 17711 of 2010]. ————— GENERAL MERE ACT OF HOLDING LEGS, CANNOT BE NULCTED WITH THE OFFENCE OF MURDER RAJENDRA MAHADEO LOKHARE (PW1) THE COMPLAINANT, Kishore Mahadeo Lokhare-(original Accused No. 1) and Sanjay Mahadeo Lokhare @ Sanju (since deceased) are bothers and were residing at Room No. 11, Gangabhaiya Chawl, near K.V.K. High School, Sainath Nagar Road, Ghatkopar (W), Bombay, Suresh Sakharam Nangare-(originalAccused No. 3) is the friend of A-1 and Surekha Mahadeo Lokhare (PW-2) is the wife of A-1. Kishore Mahadeo Lokhare (A-1) was addicted to ganja and liquor and used to ill-treat his wife- Surekha (PW-2) and other members of the family including his younger brother-Sanjay Mahadeo Lokhare-the deceased. Due to the said behaviour, all the family members except Kishore Mahadeo Lokhare shifted to Punjab Chawl, Near Tata Fission Pipe Line, Mulund (W), Bombay. Surekha (PW-2) was very loving and affectionate to Sanjay-the deceased and was used to take care of him as a mother as he was suffering from deformity due to typhoid and had also lost his speech. Sanjay was also having love and affection as a son towards Surekha (PW-2) and he used to intervene whenever his elder brother assaulted his wife-Surekha and children. On this account, Kishore developed enmity against Sanjay and wanted to get rid of him. On 2.3.1995, Kishore Mahadeo Lokhare came to the house of Rajendra Mahadeo Lokhare (PW- 1) and persuaded him to send Sanjay to his house at Ghatkopar on the pretext of performing some Pooja. On the same day, in the afternoon, Sanjay left for his elder brother's home informing that he will return the same night but he did not return. On 3.3.1995, at about 9.30 pm, Rajendra Mahadeo Lokhare (PW-1) visited his elder brother's house in search of Sanjay but he returned after finding that Kishore was present there. On the very same day, i.e., on 3.3.1995, between 10.30 pm to 11.00 pm, PW-1 was informed by two residents of Ghatkopar at his residence that his younger brother-Sanjay has expired due to burn injuries. PW-1 lodged an FIR against his elder brother-Kishore Mahadeo Lokhare at Ghatkopar Police Station which was registered as CR No. 76/1995. After investigation, the police filed chargesheet against 3 persons, namely, Kishore Mahadeo Lokhare, Shabbir Fariyad Khan and Suresh Sakharam Nangare for their involvement in the death of Sanjay Mahadeo Lokhare. The case was omitted to the Court of Sessions and numbered
  15. 15. 152013 LAWTELLER as Sessions Case No. 816 of 1995 and charges were framed against the accused persons under Sections 302 and 201 read with Section 34 of the Indian Penal Code, 1860 (the IPC). During trial before the Court of Sessions, Shabbir Fariyad Khan turned approver and by impugned judgement and order dated 15.10.1998, the Additional Sessions Judge convicted Kishore Mahadeo Lokhare and Suresh Sakharam Nangare (original accused Nos. 1 and 3 respectively) under Section 302 read with Section 34 of IPC and sentenced them to suffer rigorous imprisonment (RI) for life. The accused persons were also convicted under Section 201 read with Section 34 IPC and sentenced to suffer rigorous imprisonment (RI) for 3 years each alongwith a fine of Rs. 2,000/- each, in default, to further undergo RI for 6 months each and the sentences were to run concurrently. Being aggrieved, Suresh Sakharam Nangare preferred CriminalAppeal No. 865 of 2001 before the High Court. By impugned judgement dated 4.8.2006, the Division Bench of the High Court dismissed the appeal and confirmed the conviction and sentence passed by theAdditional Sessions Judge, Greater Bombay. Against the judgement of the High Court special leave petition was filed. The Supreme Court accepted the appeal, by holding that the prosecution failed to establish the guilt insofar as the present appellant is concerned, the appellant was ordered to be released forthwith. The operative part of the judgement read as under : Nobody has implicated the present appellant except the statements made by PW-5 and PW- 7 (the approver). We are satisfied that absolutely there is no material from the side of the prosecution to show that the present appellant had any common intention to eliminate the deceased, who was physically disabled. The only adverse thing against the present appellant is that he used to associate with A-1 for smoking Ganja. In the absence of common intention, we are of the view that convicting the appellant with the aid of Section 34 IPC cannot be sustained. TTTTTTT Apply Section 34, apart from the fact that there should be two or more accused, two factors must be established: (i) common intention, and (ii) participation of accused in the commission of an offence. It further makes clear that if common intention is proved but no overt act is attributed to the individual accused, Section 34 will be attracted as essentially it involves vicarious liability but if participation of the accused in the crime is proved and common intention is absent, Section 34 cannot be invoked. In other words, it requires a pre-arranged plan and pre-supposes prior concert, therefore, there must be prior meeting of minds. TTTTTTT It was a burnt body, averagely nourished with presence of rigor mortis is muscles. His tongue was protruding outside and surface wounds and injuries were 100% superficial to deep burns. In the opinion of doctor PW10, the cause of the death was due to 100% burns injuries. He also issued the post-mortem certificate which is Exh. 21 wherein he opined that the death occurred due to 100% burns and not because of assault. The categorical evidence and the opinion of PW-10 for the cause of the death of Sanjay make it clear that the appellant herein - original Accused No. 3 has nothing to do with the same since the evidence brought in shows that it was Kishore Mahadeo Lokhare-(original Accused No. 1) who took Sanjay to the other room where he burnt him to death. This important aspect has not been considered by the trial Court as well as by the High Court. TTTTTTT On appreciation of the entire material, we have already concluded that the present appellant had no role in the criminal conspiracy and no motive to kill the deceased. TTTTTTT The evidence led in clearly implicates Kishore Mahadeo Lokhare-(original Accused No. 1) in all aspects including motive and the manner of causing death by lighting fire. Apart from all the evidence led in by the prosecution, the above position is clear from the evidence of the Doctor (PW-10)-who conducted the post mortem and his opinion for the cause of the death. Merely
  16. 16. 16 LAWTELLER 2013 because the approver (PW-7) has stated that based on the direction of Kishore Mahadeo Lokhare (original Accused No. 1), the present appellant (original Accused No. 3) caught hold of the legs of the deceased, in the absence of any motive or intention, mere act of holding his legs that too at the end of the event when original Accused No. 1 throttled his neck by sitting on his abdomen, the appellant (original Accused No. 3) cannot be mulcted with the offence of murder with the aid of Section 34 of IPC, particularly, when the medical evidence for the cause of death is otherwise, namely, due to 100% burns. TTTTTTT Reference : Supreme Court. Suresh Sakharam Nangare v. The State of Maharashtra, criminal appeal no. 1606 of 2008. ————— GENERAL FREEDOM CAN BE TAKEN AWAY, ONLY WITH DUE SANCTION OF LAW AN FIR WAS LODGED BYASH MOHAMMAD (THE appellant) on 29.5.2011 alleging that while he was going to his in-laws' place in village Samadia, P.S. Patwai along with Bihari Lal near canal of Milk Road from Patwai which leads to Samdia Khurd, two persons came on a motorcycle and after inquiring about the identity of Bihari Lal told him that they had been asked by Lalla Babu @ Shiv Raj Singh to compel him to accompany them. As there was resistance, they threatened to kill him and eventually made Bihari Lal sit in between them on the Hero Honda motorcycle and fled towards Patwai. The incident was witnessed by Munish and Rajbir. In quite promptitude the appellant went to the Patwai Police Station, District Rampur and lodged the FIR as a consequence of which crime No. 770 of 2011 was registered for offences punishable under Section 364 and 506 of the IPC. On the basis of the FIR the criminal law was set in motion and the accused was arrested and taken into custody. The accused Shiv Raj Singh @ Lalla Babu preferred bailApplication No. 1268 of 2011 which came to be dealt by the learned Additional Sessions Judge, Rampur who taking note of the allegations in the FIR and the stand put forth in oppugnation by the prosecution as well as the victim observed as follows: I have perused the case diary. While confirminghisabduction,victimBihariLal hasstatedunderSection164Cr.P.C.that the abductors took him to the accused. Applicant-accused and his accomplices kept him confined in a room for about 8 days and they also used to assault him and threaten for life.As per the victim, he escapedfromtheircaptivityafterabout8 days of abduction under the pretext of nature's call/time. Munish and Rajbir reported as eye-witnesses in the First Information Report stated before the Investigating Officer that the abductors had stated at the time of abduction that the applicant-accused Lalla Babu has send them to mend you. Thereafter, taking note of the fact that the accused is a history-sheeter and involved in number of cases rejected the application for bail. Being unsuccessful to secure bail from the court of Session, the accused preferred a Bail Application No. 28461 of 2011 before the High Court under Section 439 of the Code. The High Court though took note of the statement made under Section 164 CrPC that name of Shiv Raj Singh @ Lalla Babu had figured as allegations were made against him to that effect that victim Bihari Lal was taken by the kidnappers to him, yet observed that he only sat there and offended Bihari Lal. The High Court only mentioned the fact that the accused has a criminal history and is involved in number of cases but considering the factum that he has been in custody since 30.9.2011 directed his enlargement on bail on certain conditions, namely, the accused shall
  17. 17. 172013 LAWTELLER report at the police station concerned on the first day of each English Calendar month, shall not commit any offence similar to the offence which he is accused of, and shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the court or to any police officer. Against the judgement of the High Court special leave petition was filed. The Supreme Court set aside the order passed by the High Court and the bail bonds of the accused were cancelled. The operative part of the judgement read as under : The High Court, in toto, has ignored the criminal antecedents of the accused. In the case at hand, as the prosecution case unfolds, the accused did not want anyone to speak against his activities. He had sent two persons to kidnap Bihari Lal, who remained in confinement for eight days. The victim was tortured. True it is, sometimes allegations are made that a guardian has kidnapped a child or a boy in love has kidnapped a girl. But kidnapping for ransom or for revenge or to spread terror or to establish authority are in a different realm altogether. TTTTTTT There should have been proper analysis of the criminal antecedents. Imposition of conditions is subsequent to the order admitting an accused to bail. The question should be posed whether the accused deserves to be enlarged on bail or not and only thereafter issue of imposing conditions would arise. TTTTTTT In the present case the victim had been kidnapped under threat, confined and abused. The sole reason for kidnapping is because the victim had shown some courage to speak against the accused. This may be the purpose for sustaining of authority in the area by the accused and his criminal antecedents, speak eloquently in that regard. In his plea for bail the accused hadstatedthatsuchoffenceshadbeenregistered because of political motivations but the range of offence and their alleged years of occurrence do not lend prima facie acceptance to the same. Thus, in the present case his criminal antecedents could not have been totally ignored. TTTTTTT In the present context the period of custody of seven months melts into insignificance. Granting of bail is a matter of discretion for the High Court and this Court is slow to interfere with such orders. But regard being had given to the antecedents of the accused which is also a factor to be taken into consideration as per the pronouncements of this Court and the nature of the crime committed and the confinement of the victim for eight days, we are disposed to interfere with the order impugned. TTTTTTT When we state that the accused is a history- sheeter we may not be understood to have said that a history-sheeter is never entitled to bail. But, it is a significant factor to be taken note of regard being had given to the nature of crime in respect of which he has been booked. TTTTTTT Period of custody is a relevant factor but simultaneously the totality of circumstances and the criminal antecedents are also to be weighed. They are to be weighed in the scale of collective cry and desire. The societal concern has to be kept in view in juxtaposition of individual liberty. Regard being had given to the said parameter we are inclined to think that the social concern in the case at hand deserves to be given priority over lifting the restriction of liberty of the accused. TTTTTTT What has weighed with the High Court is that the accused had spent seven months in custody. That may be one of the factors but that cannot be the whole and the sole factor in every case. It depends upon the nature of the offence, the manner in which it is committed and its impact on the society. TTTTTTT Authorities relied upon : AIR 1980 SC 856, 1989 (23) QBD 598, 606. Reference : Supreme Court. Ash Mohammad v. Shiv Raj Singh @ Lalla Babu & Anr., criminal appeal no. 1456 of 2012 (from the Judgement and Order dated 26.4.2012 of the High Court of Judicature at Allahabad in Crl. Misc. Bail Application No. 28461 of 2011). —————
  18. 18. 18 LAWTELLER 2013 LAW FORYOU DOUBLEJEOPARDY In order to attract the provisions ofArticle 20(2) of the Constitution i.e. doctrine of autrefois acquit or Section 300, Cr. P.C. or Section 71, IPC or S. 26 of General ClausesAct, ingredients of the offences in the earlier case as well as in the latter case must be he same and not different. The test to ascertain whether the two offences are the same, is not identity of the allegations but the identity of the ingredients of the offence. Motive for committing offence cannot be termed as ingredient of offences to determine the issue. The plea of autrefois acquit is not proved unless it is shown that the judgement of acquittal in the previous charge necessarily involves an acquittal of the latter charge. Reference : SC. Sangeetaben MahendrabhaiPatelv. StateofGujarat& Anr.,criminalappealno.645of2012. DIRECTORSOFCOMPANYCANNOT BEPROSECUTEDALONE Section 141 of Negotiable Instruments Act (26of 1881) is concerned with the offences by the company. It makes the other persons vicariously liable for commission of an offence on the part of the company. The vicarious liability gets attracted when the condition precedent under Section 141 namely, offence by company stands satisfied. The power of punishment is vested in the legislature and that is absolute in S. 141 which clearly speaks of commission of offence by the company. The liability created is penal and thus warrants strict construction. It cannot therefore be said that the expression "as well as" in S. 141 brings in the company as well as the Director and/or other officers who are responsible for the acts of the company within its tentacles and, therefore, a prosecution against the Directors or other officers is tenable even if the company is not arraigned as an accused. The words "as well as" have to be understood in the context. Applying the doctrine of strict construction, it is clear that commission of offence by the company is an express condition precedent to attract the vicarious liability of others. Thus, it is absolutely clear that when the company can be prosecuted, then only the persons mentioned in the other categories could be vicariously liable for the offence subject to the averments in the petition and proof thereof. It necessarily follows that for maintaining the prosecution under S. 141 of theAct, arraigning of a company as an accused is imperative only then the other categories of offenders can be brought in the dragnet on the touchstone of vicarious liability as the same has been stipulated in the provision itself. Reference : SC. Aneeta Hada v. M/s. Godfather Travels & Tours Pvt. Ltd., criminal appeal no. 838 with 842 of 2008 with1483and1484of2009. LIABILITY OF INSURER SUBSISTS TILLCANCELLATIONOFPOLICY When the policy of insurance is issued by an authorized insurer on receipt of cheque towards payment of premium and such cheque is returned dishonoured, the liability of authorized insurer to indemnify third parties in respect of the liability which that policy covered subsists and it has to satisfy award of compensation by reason of the provisions of Sections 147(5) and 149(1) of the M.V. Act unless the policy of insurance is cancelled by the authorized insurer and intimation of such cancellation has reached the insured before the accident. In other words, where the policy of insurance is issued by an unauthorized insurer to cover a vehicle on receipt of the cheque paid towards premium and the cheque gets dishonoured and before the accident of the vehicle occurs, such insurance company cancels the policy of insurance and sends intimation thereof to the owner, the insurance company's liability to indemnify the third parties which that policy covered ceases and the insurance company is not liable to satisfy awards of compensation in respect thereof. Reference : SC. United India Insurance Co. Ltd. v. Laxmama & Ors., civil appeal no.3589of2012[arisingoutofS.L.P. (C) No.23511of2009].
  19. 19. 192013 LAWTELLER RULE OF ESTOPPEL ONLY PREVENTS ACCEPTANCE OF EVIDENCE TO DISTURB FINDING ALREADYRECORDED Where an issue of fact has been tried by a competent Court on an earlier occasion and a finding has been recorded in favour of the accused, such a finding would constitute an estoppel or res judicata against the prosecution, not as a bar to the trial and conviction of the accused for a different or distinct offence, but as precluding the acceptance/reception of evidence to disturb the finding of fact when the accused is tried subsequently for a different offence. This rule is distinct from the doctrine of double jeopardy as it does not prevent the trial of any offence but only precludes the evidence being led to prove a fact in issue as regards which evidence has already been led and a specific finding has been recorded at an earlier criminal trial. Thus, the rule relates only to the admissibility of evidence which is designed to upset a finding of fact recorded by a competent Court in a previous trial on a factual issue. Reference : SC. Sangeetaben MahendrabhaiPatelv. StateofGujarat& Anr.,criminalappealno.645of2012. QUANTUMOFCOMPENSATIONAND HEADSFORPAYMENT In determining the quantum of compensation payable to the victims of accident, who are disabled either permanently or temporarily, efforts should always be made to award adequate compensation not only for the physical injury and treatment, but also for the loss of earning and inability to lead a normal life and enjoy amenities, which would have been enjoyed but for the disability caused due to the accident. The amount awardedunder theheadoflossofearningcapacity is distinct and do not overlap with the amount awarded for pain., suffering and loss of enjoyment of life or the amount awarded for medical expenses. Reference : SC. Kavita v. Deepak and Ors.,civilappealno.5945of2012[arising outofS.L.P.(C)No.7396of2011]. EVERY MEMBER OF UNLAWFUL ASSEMBLYVICARIOUSLYLIABLE Section 149 IPC creates a constructive or vicarious liability of the members of unlawful assembly for the unlawful acts committed pursuant to the common object by any other member of that assembly. This principle ropes in every member of the assembly to be guilty of an offence where the offence is committed by any member of that assembly in prosecution of common object of that assembly, or such members or assembly knew that offence is likely to be committed in prosecution of that object. The factum of causing injury or not causing injury would not be relevant, where accused is sought to be roped in with the aid of Section 149 IPC. The relevant question to be examined by the Court is whether the accused was a member of an unlawful assembly and not whether he actually took active part in the crime or not. Reference : SC. Krishnappa & Ors. v. State of Karnataka by Babaleshwara PoliceStation,criminalappealno.984of 2010with1147of2012[arisingoutofS.L.P. (Crl.)No.5830of2012]. PRINCIPLESGOVERNINGJUDICIAL REVIEW IN CONTRACTUAL MATTERS Following principles govern judicial review in contractual matters: (a)The basic requirement ofArticle 14 is fairness in action by the State, and non- arbitrariness in essence and substance istheheartbeatoffairplay.Theseactions areamenabletothejudicialreviewonlyto the extent that the State must act validly for a discernible reason and not whimsicallyforanyulteriorpurpose.Ifthe State acts within the bounds of reasonableness,itwouldbelegitimateto take into consideration the national priorities; (b) Fixation of a value of the tender is entirelywithinthepurviewoftheexecutive andCourtshardlyhaveanyroletoplayin thisprocessexceptforstrikingdownsuch
  20. 20. 20 LAWTELLER 2013 action of the executive as is proved to be arbitrary or unreasonable. If the governmentactsinconformitywithcertain healthy standards and norms such as awardingofcontractsbyinvitingtenders, in those circumstances, the interference by Courts is very limited; (c)Inthematterofformulatingconditions of a tender document and awarding contract,greaterlatitudeisrequiredtobe conceded to the State authorities unless the action of tendering authority is found to be malicious and a misuse of its statutorypowers,interferencebyCourts isnotwarranted. (d)Certainpreconditionsorqualifications fortendershavetobelaiddowntoensure that the contractor has the capacity and theresourcestosuccessfullyexecutethe work;and (e) If the State or its instrumentalities act reasonably, fairly and in public interest in awardingcontract,hereagain,interference byCourtisveryrestrictivesincenoperson can claim fundamental right to carry on businesswiththeGovernment. Reference : SC. M/s Michigan Rubber (India) Ltd. v. State of Karnataka & Ors., civilappealno.5898of2012[arisingoutof S.L.P.(C)NO.25802of2008. IMPLEADMENTOFPARTIES The broad principles which should govern disposal of an application for impleadment are: 1. The Court can, at any stage of the proceedings, either on an application made by the parties or otherwise, direct impleadmentofanypersonasparty,who ought to have been joined as plaintiff or defeandantorwhosepresencebeforethe Court is necessary for effective and complete adjudication of the issues involvedinthesuit. 2. A necessary party is the person who oughttobejoinedaspartytothesuitand in whose absence an effective decree cannotbepassedbyCourt. 3. A proper party is a person whose presence would enable the Court to completely, effectively and properly adjudicate upon all matters and issues, thoughhemaynotbeapersoninfavourof or against whom a decree is to be made. 4.Ifapersonisnotfoundtobeaproperor necessaryparty,theCourtdoesnothave the jurisdiction to order his impleadment againstthewishesoftheplaintiff. 5. In a suit for specific performance, the Court can order impleadment of a purchaserwhoseconductisabove-board, andwhofilesapplicationforbeingjoined as party within reasonable time of his acquiring knowledge about the pending litigation. 6. However, if the applicant is guilty of contumacious conduct or is beneficiary of a clandestine transaction or a transactionmadebytheownerofthesuit property in violation of the restraint order passed by the Court or the application is undulydelayedthentheCourtwillbefuly justified in declining the prayer for impleadment. Reference:SC.BhagwatiDevelopersPvt. Ltd.v.ToshApartmentsPvt.Ltd.andOrs., civil appeal nos. 5918 with 5917 of 2012 [arising out of S.L.P. (C) Nos. 11501 with 17156of2009]. RECOVERY CANNOT BE LIMITED ONLY TO CASES OF FRAUD OR MISREPRESENTATION Any amount paid/received without authority of law can always be recovered barring few exceptions of extreme hardships but not as a matter of right. In such situations law implies an obligation on the payee to repay the money, otherwise it would amount to unjust enrichment. Recovery of excess paid public money cannot be limited only to cases of fraud or misrepresentation. Concept of fraud or misrepresentation is not applicable to such situation. Excess payment made to teachers/ principles due to wrong pay fixation is liable to be recovered. Moreso when there was clear stipulation in the fixation order that in case of wrong/irregular fixation the institution in which the
  21. 21. 212013 LAWTELLER employee works would be responsible for recovery of over payment made. Reference:SC.ChandiPrasadUniyaland Ors.v.StateofUttarakhandandOrs.,civil appealno.5899of2012[@SpecialLeave Petition(C)No.30858of2011]. ACCUSEDCANNOTBECONVICTED ONMORALCONSIDERATIONS If the view taken by the trial Court is a reasonable possible view, the High Court cannot set it aside and substitute it by its own view merely because that view is also possible on the facts of the case. The High Court has to bear in mind that presumption of innocence of an accused is strengthened by his acquittal and unless there are strong and compelling circumstances which rebut that presumption and conclusively establish the guilt of the accused, the order of acquittal cannot be set aside. Unless the order of acquittal is perverse, totally against the weight of evidence and rendered in complete breach of settled principles underlying criminal jurisprudence, no interference is called for with it. Crime may be heinous, morally repulsive and extremely shocking, but moral considerations cannot be a substitute for legal evidence and the accused cannot be convicted on moral considerations. Reference : SC. K. Venkateshwarlu v. StateofAndhraPradesh,criminalappeal no.500of2011. EVIDENCEOFCHILDWITNESS A child witness, by reason of his tender age, is a pliable witness. He can be tutored easily either by threat, coercion or inducement. Therefore, the Court must be satisfied that the attendant circumstances do not show that the child was acting under the influence of someone or was under a threat or coercion. Evidence of a child witness can be relied upon if the Court, with its expertise and ability to evaluate the evidence, comes to the conclusion that the child is not tutored and his evidence has a ring of truth. It is safe and prudent to look for corroboration for evidence of a child witness from the other evidence on record, because while giving evidence a child may give scope to his imagination and exaggerate his version or may develop cold feet and not tell the truth or may repeat what he has been asked to say not knowing the consequences of his deposition in the Court. Careful evaluation of the evidence of a child witness in the background and context of other evidence on record is a must before the Court decide to rely upon it. Reference : SC. K. Venkateshwarlu v. StateofAndhraPradesh,criminalappeal no.500of2011. SPEED DOES NOT ALWAYS DETERMINE RASHESS AND NEGLIGENCE Rash and negligent driving has to be examined in light of the facts and circumstances of a given case. It is a fact incapable of being construed or seen in isolation. It must be examined in light of the attendant circumstances. A person who drives a vehicle on the road is liable to be held responsible for the act as well as for the result. It may not be always possible to determine with reference to the speed of a vehicle whether a person was driving rashly and negligently. Both these acts presuppose an abnormal conduct. Even when one is driving a vehicle at a slow speed but recklessly and negligently, it would amount to 'rash and negligent driving'withinthemeaningofthelanguageofSection 279 IPC. That is why the legislature in its wisdom has used the words 'manner so rash or negligent as to endanger human life'. The preliminary conditions, thus, are that (a) it is the manner in which the vehicle is driven; (b) it be driven either rashly or negligently; and (c) such rash or negligent driving should be such as to endanger human life. Another parameter, applied is of 'reasonable care' in determining the question of negligence or contributorynegligence.Thedoctrineofreasonable care imposes an obligation or a duty upon a person to care for the pedestrian on the road and this duty attainsahigherdegreewhenthepedestrianhappen to be children of tender years. It is axiomatic to say that while driving a vehicle on a public way, there is an implicit duty cast on the drivers to see that their driving does not endanger the life of the rightusersoftheroad,maybeeithervehicularusers or pedestrians. They are expected to take sufficient caretoavoiddangertoothers.Stillanotherprinciple
  22. 22. 22 LAWTELLER 2013 that is pressed in aid by the Courts in such cases is the doctrine of res ipsa loquitur. This doctrine serves two purposes one that an accident may by its nature be more consistent with its being caused by negligence for which the opposite party is responsible than by any other causes and that in such a case, the mere fact of the accident is prima facie evidence of such negligence. Secondly, it is to avoid hardship in cases where the claimant is able to prove the accident but cannot prove how the accident occurred. Reference : SC. Ravi Kapur v. State of Rajasthan, criminal appeal no. 1838 of 2009. A JUDGE, LIKE CAESAR'S WIFE MUSTBEABOVESUSPICION JudicialserviceisnotanordinaryGovernmentservice and the Judge is not employee as such. Judges hold the public office, their function is one of the essential functions of the State. In discharge of their functionsandduties,theJudgesrepresenttheState. The office that a Judge holds is an office of public trust. A Judge must be a person of impeccable integrityandunimpeachableindependence.Hemust be honest to the core with high moral values. When alitigantentersthecourtroom,hemustfeelsecured that the Judge before whom his matter has come, woulddeliverjusticeimpartiallyanduninfluencedby anyconsideration.Thestandardofconductexpected of a Judge is much higher than an ordinary man. This is no excuse that since the standards in the society have fallen the Judges who are drawn from the society cannot be expected to have high standards and ethical firmness required of a Judge. AJudge,likeCaesar'swife,mustbeabovesuspicion. The credibility of the judicial system is dependent upon the Judges who man it. For a democracy to thrive and rule of law to survive, justice system and the judicial process have to be strong and every Judge must discharge his judicial functions with integrity, impartiality and intellectual honesty. Reference : SC. R,C. Chandel v. High CourtofM.P.&Anr.,civilappealno.5790 of2012[arisingoutofS.L.P.(C)No.1884 of2007]. APPLICATION FOR COMPASSIONATEAPPOINTMENT, NEED NOT BE IN PRESCRIBED FORMAT In an application for compassionate appointment what is important is the substance of the application and not the form. If the application in substance conveyed the request for a compassionate appointment and provide the information which the manager required for considering the request, the very fact that the information was not in a given format would not have been a good reason to turn down the request. When the authority concerned did not reject the application on the ground that the same was not in the prescribed format or that the application was deficient in disclosing information that was essential for consideration of the prayer for a compassionate appointment it could to be set up as a ground for rejection of the prayer of applicant by the beneficiary of the appointment made in derogation of the right of applicant. Reference : SC. Shreejith L. v. Deputy Director (Education), Kerala & Ors., civil appealnos.4848,4852,4851,4854,4853, 4849,4850of2012[arisingoutofSLP(C) 7556 of 2008 with 4954, 33421 of 2009, 4467,31908,6607-6608of2011]. ooooooo QUOTE from COURT Be you never so high, the law is above you.Be you never so high, the law is above you.Be you never so high, the law is above you.Be you never so high, the law is above you.Be you never so high, the law is above you. —THOMAS FULLER—THOMAS FULLER—THOMAS FULLER—THOMAS FULLER—THOMAS FULLER
  23. 23. 232013 LAWTELLER GENERAL ARTICLE 14 FORBIDS CLASS LEGISLATION, BUT PROTECTS REASONABLE CLASSIFICATION It is contended that keeping in view the powers, functions and jurisdiction that the Chief/State Information Commissioner and/or the Information Commissioners exercise undisputedly, including the penal jurisdiction, there is a certain requirement oflegalacumenandexpertiseforattainingtheends of justice, particularly, under the provisions of the Act of 2005. On this premise, the petitioner had questioned the constitutional validity of sub- Sections(5)and(6)ofSection12andsub-Sections (5) and (6) of Section 15 of the Act of 2005. These provisions primarily deal with the eligibility criteria for appointment to the posts of Chief Information Commissioners and Information Commissioners, both at the Central and the State levels. The Supreme Court while partially allowing the writ petition issued following directions: 1.Thewritpetitionispartlyallowed. 2. The provisions of Sections 12(5) and 15(5) of the Act of 2005 are held to be constitutionallyvalid,butwiththeriderthat, to give it a meaningful and purposive interpretation,itisnecessaryfortheCourt to'readinto'theseprovisionssomeaspects withoutwhichtheseprovisionsarebound tooffendthedoctrineofequality.Thus,we hold and declare that the expression 'knowledgeandexperience'appearingin theseprovisionswouldmeanandinclude a basic degree in the respective field and theexperiencegainedthereafter.Further, withoutanyperadventureandveritably,we statethatappointmentsoflegallyqualified, judiciallytrainedandexperiencedpersons wouldcertainlymanifestinmoreeffective serving of the ends of justice as well as ensuringbetteradmissionofjusticebythe Commission. It would render the adjudicatoryprocesswhichinvolvescritical legalquestionsandnuancesoflaw,more adherenttojusticeandshallenhancethe public confidence in the working of the NAMIT SHARMA A PUBLIC SPIRITED CITIZEN APPROACHED Supreme Court under Article 32 of the Constitution stating that though the Right to Information Act, 2005 (Act of 2005)isanimportanttoolinthehandsofanycitizen to keep checks and balances on the working of thepublicservants,yetthecriterionforappointment of the persons who are to adjudicate the disputes under this Act are too vague, general, ultra vires the Constitution and contrary to the established principles of law laid down by a plenthora of judgements of Supreme Court. It is the stand of the petitioner that the persons who are appointed to discharge judicial or quasi-judicial functions or powersundertheActof2005oughttohaveajudicial approach, experience, knowledge and expertise. Limitation has to be read into the competence of the legislature to prescribe the eligibility for appointment of judicial or quasi-judicial bodies like the Chief Information Commissioner, Information Commissioners and the corresponding posts in the States, respectively. The legislative power should be exercised in a manner which is in consonance with the constitutional principles and guarantees. Complete lack of judicial expertise in the Commission may render the decision making process impracticable, inflexible and in given cases, contrary to law. The availability of expertise of judicial members in the Commission would facilitate the decision-making to be more practical, effectiveandmeaningful,besidesgivingsemblance of justice being done. The provision of eligibility criteria which does not even lay down any qualificationsforappointmenttotherespectiveposts under theAct of 2005 would be unconstitutional, in terms of the judgements of Supreme Court in the cases of Union of India v. Madras BarAssociation [(2010) 11 SCC 1]; Pareena Swarup v. Union of India; L. Chandra Kumar v. Union of India [(1997) 3 SCC 261]; R.K. Jain v. Union of India [(1993) 4 SCC 119]; S.P. Sampath Kumar v. Union of India [(1987) 1 SCC 124].
  24. 24. 24 LAWTELLER 2013 Commission. This is the obvious interpretation of the language of these provisions and, in fact, is the essence thereof. 3.Asopposedtodeclaringtheprovisions ofSection12(6)and15(6)unconstitutional, wewouldprefertoreadtheseprovisionsas havingeffect'post-appointment'.Inother words,cessation/terminationofholdingof officeofprofit,pursuinganyprofessionor carrying any business is a condition precedenttotheappointmentofaperson as Chief Information Commissioner or InformationCommissionerattheCentreor Statelevels. 4. There is an absolute necessity for the legislature to reword or amend the provisionsofSection12(5),12(6)and15(5), 15(6)oftheAct.Weobserveandhopethat theseprovisionswouldbeamendedatthe earliest by the legislature to avoid any ambiguity or impracticability to avoid any ambiguity or impracticability and to make it in consonance with the constitutional mandates. 5. We also direct that the Central Government and/or the competent authority shall frame all practice and procedurerelatedrulestomakeworkingof theInformationCommissionseffectiveand in consonance with the basic rule of law. Suchrulesshouldbeframedwithparticular reference to Section 27 and 28 of theAct withinaperiodofsixmonthsfromtoday. 6. We are of the considered view that it is anunquestionablepropositionoflawthat the Commission is a 'judicial tribunal' performingfunctionsof'judicial'aswellas 'quasi-judicial' nature and having the trappingsofaCourt.Itisanimportantcog andispartofthecourtattachedsystemof administrationofjustice,unlikeaministerial tribunal which is more influenced and controlled and performs functions akin to themachineryofadministration. 7.Itwillbejust,fairandproperthatthefirst appellateauthority(i.e.theseniorofficers to be nominated in terms of Section 5 of theAct of 2005) preferably should be the persons possessing a degree in law or havingadequateknowledgeandexperience inthefieldoflaw. 8. The Information Commissions at the respectivelevelsshallhenceforthworkin Benches of two members each. One of them being a 'judicial member', while the other an 'expert member'. The judicial membershouldbeapersonpossessinga degree in law, having a judicially trained mindandexperienceinperformingjudicial functions.Alawofficeroralawyermayalso beeligibleprovidedheisapersonwhohas practicedlawatleastforaperiodoftwenty yearsasonthedateoftheadvertisement. Suchlawyershouldalsohaveexperience in social work. We are of the considered view that the competent authority should preferapersonwhoisorhasbeenaJudge of the High Court for appointment as Information Commissioner. Chief InformationCommissionerattheCentreor Statelevelshallonlybeapersonwhoisor hasbeenaChiefJusticeoftheHighCourt oraJudgeoftheSupremeCourtofIndia. 9.Theappointmentofthejudicialmembers to any of these posts shall be made 'in consultation'withtheChiefJusticeofIndia andChiefJusticesoftheHighCourtsofthe respectiveStates, as the case may be. 10. The appointment of the Information Commissioners at both levels should be made from amongst the persons empanelled by the DoPT in the case of Centre and the concerned Ministry in the case of a State. The panel has to be preparedupondueadvertisementandona rationalbasisasafore-recorded. 11.ThepanelsopreparedbytheDoPTor theconcernedMinistryoughttobeplaced before the High-powered Committee in terms of Section 12(3), for final recommendationtothePresidentofIndia. NeedlesstorepeatthattheHighPowered Committee at the Centre and the State levels is expected to adopt a fair and transparentmethodofrecommendingthe
  25. 25. 252013 LAWTELLER names for appointment to the competent authority. 12. The selection process should be commencedatleastthreemonthspriorto theoccurrenceofvacancy. 13. This judgement shall have effect only prospectively. 14.UndertheschemeoftheActof2005,it isclearthattheordersoftheCommissions aresubjecttojudicialreviewbeforetheHigh CourtandthenbeforetheSupremeCourt of India. In terms of Article 141 of the Constitution, the judgements of the SupremeCourtarelawofthelandandare bindingonallcourtsandtribunals.Thus,it is abundantly clear that the Information Commission is bound by the law of precedence, i.e., judgements of the High Court and the Supreme Court of India. In order to maintain judicial discipline and consistency in the functioning of the Commission, we direct that the Commissionshallgiveappropriateattention tothedoctrineofprecedenceandshallnot overlook the judgements of the courts dealing with the subject and principles applicable,inagivencase. The operative part of the judgement read as under : In determining the constitutionality or validity of a constitutional provision, the court must weigh the real impact and effect thereof, on the fundamental rights. The Court would not allow the legislature to overlook a constitutional provision by employing indirect methods. TTTTTTT Traditionality, this Court had provided very limited grounds on which an enacted law could be declared unconstitutional. They were legislative competence, violation of Part III of the Constitution and reasonableness of the law. The first two were definite in their scope and application while the cases falling in the third category remained in a state of uncertainty. TTTTTTT No prejudice needs to be proved in cases where breach of fundamental rights is claimed. Violation of a fundamental right itself renders the impugned action void. TTTTTTT The Court should examine the provision of the statute in light of the provisions of the Constitution (e.g. Part III), regardless of how it is actually administered or is capable of being administered. TTTTTTT In order to examine the constitutionality or otherwise of a statute or any of its provisions, one of the most relevant considerations is the object and reasons as well as the legislative history of the statute. It would help the court in arriving at a more objective and justful approach. It would be necessary for the Court to examine the reasons of enactment of a particular provision so as to find out its ultimate impact vis-à-vis the constitutional provisions. TTTTTTT Most significant canon of determination of constitutionality is that the courts would be reluctant to declare a law invalid or ultra vires on account of unconstitutionality. The courts would accept an interpretation which would be in favour of the constitutionality, than an approach which would render the law unconstitutional. Declaring the law unconstitutional is one of the last resorts taken by the courts. The courts would preferably put into service the principle of 'reading down' or 'reading into' the provision to make it effective, workable and ensure the attainment of the object of the Act. TTTTTTT The provisions of Section 12(5) do not discuss the basic qualification needed, but refer to two components: (a) persons of eminence in public life; and (b) with wide knowledge and experience in the fields stated in the provision. The provision, thus, does not suffer from the infirmity of providing no criteria resulting in the introduction of the element of arbitrariness or discrimination. The provisions require the persons to be of eminence and with knowledge in the stated fields. The vagueness in the expression 'social service', 'mass media' or 'administration and governance' does not introduce the element of discrimination in the provision. The persons from these various walks of life are considered eligible for appointment to the post of Chief Information
  26. 26. 26 LAWTELLER 2013 Commissioner and Information Commissioners in the respective Information Commissions. This gives a wide zone of consideration and this alleged vagueness can always be clarified by the appropriate government. TTTTTTT Sub-Section (6) of Section 12 does have an element of uncertainty and indefiniteness. It is difficult to say what the person eligible under the provision should be doing and for what period. The section does not specify any such period. The exclusion is too vague, while inclusion is uncertain. It creates a situation of confusion which could not have been the intent of law. It is also not clear as to what classification the framers of the Act intended to lay down. The classification does not appear to have any nexus with the object of the Act. There is no intelligible differentia to support such classification. If we read the language of Sections 12(5) and 12(6) together, the provisions under sub-Section (6) appear to be in conflict with those under sub-Section (5) Sub-Section (5) requires the person to have eminence in public life and wide knowledge and experience in the specified field. On the contrary, sub-Section (6) requires that the person should not hold any office of profit, be connected with any political party or carry on any business or pursue any profession. The object of sub-Section (5) stands partly frustrated by the language of sub-Section (6). In other words, sub-Section (6) lacks clarify, reasonable classification and has no nexus to the object of the Act of 2005 and if construed on its plain language, it would result in defeating the provisions of sub-Section (5) of Section 12 to some extent. TTTTTTT Section 12(6) does not speak of the class of eligible persons, but practically debars all persons from being appointed to the post of Chief Information Commissioner or Information Commissioners at the Centre and State levels, respectively. TTTTTTT We would prefer to interpret the provisions of Section 12(6) as applicable post appointment rather than pre-appointment of the Chief Information Commissioner and Information Commissioners. In other words, these disqualifications will only come into play once a person is appointed as Chief Information Commissioner/Information Commissioner at any level and he will cease to hold any office of profit or carry any business or pursue any profession that he did prior to such appointment. It is thus implicit in this provision that a person cannot hold any of the posts simultaneous to his appointment asChiefInformationCommissionerorInformation Commissioner. In fact, cessation of his previous appointment, business or profession is a condition precedent to the commencement of his appointment as Chief Information Commissioner or Information Commissioner. TTTTTTT The legislature in its wisdom has chosen not to provideanyspecificqualification,buthasprimarily prescribed'wideknowledgeandexperience'inthe cited subjects as the criteria for selection. It is not for the courts to spell out what ought to be the qualifications or experience for appointment to a particular post. Suffice it is to say, that if the legislature itself provides 'knowledge and experience' as the basic criteria of eligibility for appointment, this per se, would not attract the rigors of Article 14 of the Constitution. On a reasonable and purposive interpretation, it will be appropriatetointerpretandreadintoSection12(5) that the 'knowledge and experience' in a particular subject would be deemed to include the basic qualification in that subject. We would prefer such an approach than to hold it to be violative of Article 14 of the Constitution. Section 12(5) has inbuilt guidelines to the effect that knowledge and experience, being two distinct concepts, should be construed in their correct perspective. This would include the basic qualification as well as an experience in the respective field, both being the pre-requisites for this section. We are unable to find that the provisions of Section 12(5) suffer from the vice of arbitrariness or discrimination. However, without hesitation, we would hasten to addthatcertainrequirementsoflawandprocedure would have to be read into this provision to sustain its constitutionality. TTTTTTT It is a settled principle of law, as stated earlier, thatcourtswouldgenerallyadoptaninterpretation which is favourable to and tilts towards the

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