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Internship diary by ronak


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Internship diary by ronak

  1. 1. Internship Diary National Law School of India University, Bangalore UNDER THE GUIDANCE& SUPERVISION OF Justice Dipak Misra (Supreme Court of India)Submittedto:Submittedby:J. Dipak MisraRonakKaranpuria1Supreme Court of India NLSIU, Bangalore st 1 Year LL.M. (Business Law)1e-mail:,Ph: +91-9829328537(Udaipur), 0294-2460774, +91-7411217916(Bangalore)Add: 35-Ekling colony sec-3 HiranMagri, Udaipur (Raj.)
  2. 2. » Day 1: Date: 1th Feb 2013Introduced to the work that is carried by judges interns andfunctioning of library and e-libraryin the Judge‟s library by office staff atthe Supreme court.Describe how to effectively research through various journals, books, concerned departments& various software like SCC, Manupatra etc.In House databases like: JUDIS -Judgment Information System SUPLIS - Case Indexing SUPLIB - Legal Articles LEGIS - Legislation of Acts Catalogue - Online Public Access Catalog(OPAC)Directed to meet Lordship DipakMisra J.» Day 2: Date: 2nd Feb 2013Case Study :Hardevinder Singh v. Paramjit Singh & othersFacts: Suit for possession of land to the extent of the share filed in trial court based on landbeing ancestral, joint Hindu possession, the said WILL is null & void. Trial court givesfinding that the said WILL is devoid of any merit & order that the land is ancestral property.On an appeal by beneficiaries of WILL, the learned appellate judge holds that thepredecessor-in-interest of the parties to the suit, was not ancestral, but self-acquired and,hence, he was competent to alienate the same in any manner as he liked; that WILL wasvalidly executed and that the finding recorded by the learned trial Judge on that score wasunsustainable. On the account of the settlement b/w appellant& the plaintiff, the trial orderwas set aside. But Defendant no.5 filed an appeal before the High Court under Sec-100C.P.C. which held that the appeal is not maintainable.Facts in Issue:1. Whether defendant No. 5 cannot be regarded as an aggrieved party to assail the impugned decree invoking the jurisdiction of the High Court under Section 100 of the Code?2. Whether appeal could lie against a mere finding for the simple reason that the Code does not provide for such an appeal?3. Whether regular second appeal could be filed by the defendant No. 5 where the suit has been dismissed by virtue of the dislodging of the decree of the first appellate court?4. Whether the finding would operate as res judicata in the subsequent proceeding?Principal involved:Three situations have been adverted in Order 41 Rule 22.
  3. 3. Category No. 1 dealswith the impugned decree which is partly in favour ofthe appellant andpartly in favour of the respondent.Dealing with such a situation, the Bench observedthat insuch a case, it is necessary for the respondentto file an appeal or take cross-objection againstthatpart of the decree which is against him if he seeks toget rid of the same though he isentitled to supportthat part of the decree which is in his favour withouttaking any cross-objection.In respect of two othercategories which deal with a decree entirely in favourof the respondentthough an issue had been decidedagainst him or a decree entirely in favour of therespondentwhere all the issues had been answeredin his favour but there is a finding in thejudgmentwhich goes against him, in the pre-amendmentstage, he could not take any cross-objection as hewas not a person aggrieved by the decree.But post-amendment,read in the light of explanation to sub-rule (1), though it is still notnecessary for therespondent to take any cross-objection layingchallenge to any findingadverse to him as thedecree is entirely in his favour, yet he may supportthe decree withoutcross-objection. It gives him theright to take a cross-objection to a finding recordedagainsthim either while answering an issue or whiledealing with an issue. It is apt to note that aftertheamendment to the Code, if the appeal standswithdrawn or dismissed for default, thecrossobjectiontaken to a finding by the respondent wouldstill be adjudicated upon on meritswhich remedy wasnot available to the respondent under theunamended Code.Held:Though the High Court has referred to the said pronouncement, yet it has not applied the ratiocorrectly to the facts. In the present case, as we find, the plaintiff claiming to be a co-sharerfiled the suit and challenged the will. The defendant No. 5, the brother of the plaintiff,supported his case. In an appeal at the instance of the defendant Nos. 1 to 4, the judgment anddecree was overturned. The plaintiff entered into asettlement with the contesting defendantswho had preferred the appeal. Such a decree, we are disposed to think, prejudicially affectsthe defendant No. 5 and, therefore, he could have preferred an appeal. The same having beenunsettled, the benefit accrued in his favour became extinct.» Day 3: Date: 3rd Feb 2013Case study :Parbin Ali and Another v.State of AssamAppeal directedagainst the judgment of conviction and order of sentencepassed by theGuwahati High Court whereby the DivisionBench of the High Court gave the stamp ofapproval to theconviction recorded by the learned Additional SessionsJudge, Silchar underSection302/34 of the Indian Penal Code (for short “the IPC”) andorder of sentence sentencingthe accused-appellants toimprisonment for life and to pay a fine of Rs.500/-, indefault, tosuffer further rigorous imprisonment for onemonth.Fact in issue: 1. Issue ofacceptability of oral dying declaration? 2. Death wascaused due to shock and haemorrhage as a result of theante mortem injuries in the abdomen caused by sharpweapon and homicidal in nature? 3. Whether delay in filing FIR is suspicious? 4. Whether such aperson receiving certain injuries would be in a position tospeak or not has not been brought out anywhere in theevidence?Held:Having said that the discrepancies which have beenbrought out are not material, wemay address to the issueof delay in lodging of the F.I.R. It is perceptible from theevidencethat the father-in-law of the deceased had goneto the police station and lodged the ezahar
  4. 4. and,thereafter, an FIR was lodged. The learned trial Judge hasanalyzed the said aspect in anextremely careful andcautious manner and on a closer scrutiny; we find that theanalysis madeby him is impeccable. In view of our aforesaid analysis, we conclude andhold that the appealis sans substratum and, accordingly,the same has to pave the path of dismissal whichwedirect.» Day 4: Date: 4th Feb 2013The Two-Judge bench comprising Lordship K.S. Radhakrishnan, J.& Lordship DipakMisra, J.held in court room 10,proceeding commences as follows:Judgment delivered by Dipak Misra, J in criminal appeal in case of Gopal Singh v.State ofUttarakhand preferred by Special Leave, the appellant calls into question the legalsubstantiality of the judgment of conviction and order of sentences passed by the High Courtof Uttarakhand at Nainital whereby the learned Single Judge has set aside the convictionunder Sections 307 and 380 of IPC the but maintained the conviction and sentence underSection 324 of theIPC passed by the learned Sessions Judge where punishment of 3 yearsrigorous imprisonment is given.Held: Injuries are not ofsuch nature to convict under Sec- 307 IPC, as stated by a doctor buthas mentionedthat there is no fracture and only a muscle injury. Theweapon used fits into thedescription as provided underSection 324 of IPC, parties are neighbors and there isnothing onrecord to show that the appellant had anycriminal antecedents. We think it appropriate thatinthe obtaining factual score, the sentence of rigorousimprisonment of one year under Section324 of IPC wouldbe adequate. That apart, we are inclined to direct that theappellants shallpay a sum of Rs. 20,000/- towardscompensation as envisaged under Section 357 (3) oftheCode to the victim.Miscellaneous matters, generally related for directions and office report, adjourned mattersand fresh matters mostly related to delay in filling SLP or Ex-party stay or order or seekpermission to file additional matters. Around 70 matters are listed today, some of them whichare crucial for the understanding of proceeding in Hon‟ble court are as follows: 1. In a matter related to 498-A IPC matter were referred to the Ranchi mediation center where appellant is praying to seek transfer, 2. In matter connected to quashing of complaint under Sec-482 Cr.p.c. read with Art.32 before Supreme Court and under Art. 226 before High Court where such pray was dismissed, but here learned counsel raised the issue that wife has file complaint in sec- 346, 323 & 379IPC which was completely malafide, based on false allegations, require re-examination, as FIR & closure report has already been filed, the Hon‟ble courtallows the matter. 3. In matter of cheque under NI act an important legal question is raised that whether all the five ingredients of sec- 138 of NI act, took place at different places will create independently a cause of action in different places. Ingredients of NI act, 1881 as follows:
  5. 5. a) Where any cheque drawn by a person on an account maintained by him with a banker b) For payment of any amount of money to another person from out of that account c) For the discharge, in whole or in part, of any debt or other liability, d) Is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account e) By an agreement made with that bank, such person shall be deemed to have committed an offense and shall, If all such activity like contract, transaction, bank of drawer, bank of receiver, breach of contract, notice, principal place of drawer etc. is different at places whether to create independently different jurisdiction, however matter is adjourned. 4. In a matter, regarding reservation benefits to Ad-hoc post, the Hon‟ble court simply says such principal of reservation can‟t be applied in Ad-Hoc post, matter dismissed. 5. In a matter, raised by the learned counsel, where the attentionof Hon‟ble court is addressed regarding the constitutionality of definition of juveniles which ultravires the constitution. Based on fixation of age, gravity of crime, society, what causes the juvenile to do such offence & whether what are the criteria of creating age for fixation of crime. However the matter was adjourned for non- miscellaneous day.Research question:There is 15-20 year delay in trial, accused is partly responsible for the delay, whether theaccused can come to quash the proceedings of the trial court under Sec- 482 cr.p.c & Art. 226before High Court & Art. 32 before the Supreme Court raising plea of his violation offundamental rights of speedy trial?Researcher first analyses the concept of speedy trial as used in U.S. courts as well as in India,and also the nature & ambit of Sec-482 cr.p.c & powers given under Art. 226 to High Court& under Art. 32 to Supreme court.Smith v. Hooey, 393 US 374 (1969), Barker v. Wingo, 407 US 514 (1972)Strunk v.United States, 412 US 434 (1973)Norman Lorenzo BRADEN v. Walter T. CAPPS,Warden, and State of Alabama2 where it is held that a defendant in federal prison chargedwith a Texas state crime was denied the right to a speedy trialwhen Texas still had notprosecuted him for the crime after seven years. Held that the case must bethrown out. Inanother case it held that violation of the speedy trial clause must be decided on a case-by-casebasis, taking intoaccount four factors:1) Length of delay2) Reason for delay;3)Whether and when the defendant asserted his right to a speedy trial;4) Degree of harm to thedefendant caused by delay.Held that a defendant in custody on different charges maintains the Sixth Amendment right toa speedytrial on new charges. The Court threw the case out after a 279 day wait.2517 F.2d 221
  6. 6. » Day 5: Date: 5th Feb 2013The Two-Judge bench comprising Lordship K.S. Radhakrishnan, J.& Lordship DipakMisra, J.held in court room 10, proceeding commences as follows:Judgment delivered by Dipak Misra, Civil Appeal arising out of SLP in caseUniversity of Rajasthan and another v. PremLataAgarwal&AnrFacts: Where the case is related to confer benefit of pension under the University PensionRegulations, 1990in matter of Ad-Hoc employees. High court considers them as regularemployees and order the University to pass on the benefits, aggrieved by this orderUniversity preferred the appeal where appeals are allowed.Held: In as we perceive, the High Court has proceeded on the basis that their services haveto be treated as regular. Once it is not regular service, theinfrastructure collapses as aconsequence of which the superstructure is bound to founder and, hence, the distinction madeby the High Court is flawed the orders passed by the High Court are set aside.Regular matters are listed, some of them which are crucial tounderstanding the proceeding inHon‟ble court are as follows:1. Offence was established under Sec-143, 323, 342 IPC. Should the benefit of offender act be given to him? If yes then why?2. A matter related to the Work of defense act, 1903 in which appellant party claiming that their area is not located inside the restricted zone where the army depot was established, while govt. stand is that by the issue of circular they come under the restricted zone, actually this case fall due to the suo-moto action taken by the Punjab Haryana High court based on marriage hall had been established near the border near Army depot which might affect the security of the nation. The Hon‟ble court came to conclusion that it is necessary to understand what is “crest” & “outer parapet” as denoted in the Sec-7 of the aforesaid act.A number of issues raised about the procedural requirement that authorities had to performed failing which whether said notification lapsed is also under scrutiny? Whether it is a pick &choose policy? As in this matter compensation is not an issue.Yesterday the work given the Hon‟ble Lordship is to understand the scope & application ofSec-482 Cr.p.c under Art. 226,227 in HC and under Sec-32 in Supreme Court where delay iscaused in trial and to quash the proceedings of the trial court, while examining in the lieu thataccused was partly involved in causing the delay.The report is submitted by the researcher.» Day 6: Date: 6th Feb 2013The Two-Judge bench comprising Lordship K.S. Radhakrishnan, J.& Lordship DipakMisra, J.held in court room 10, regular matters are listed, proceeding commences as follows:Judgment delivered by K.S. Radhakrishnan, Civil Appeal arising out of SLP in caseState of Kerala and others v. President, Parent Teacher Assn. SNVUP and others.Facts:Whetherthe High Court was justified in directing the Secretary, GeneralEducationDepartment of the State of Kerala to get theverification of the actual students‟ strength in allthe aided schools in the State with the assistance of the police and to takeappropriate actionregardingschool authorities who had made bogus admissions andmade wrong recording of
  7. 7. attendance which led to the irregularand illegal fixation of staff strength of the school& theState exchequer incurs heavy financial burden by way of pay and allowances.Held:We are, however, of the view that theinvestigation by the police with regard to theverification of theschool admission, register etc., particularly with regard to theadmissions ofthe students in the aided schools will give a wrongsignal even to the students studying in theschool and thepresence of the police itself is not conducive to the academicatmosphere of theschools. In such circumstances, we areinclined to set aside the directions given by the Two-Judge bench forpolice intervention for verification of the students‟ strength in allthe aidedschools.Regular matters are listed, some of them which are crucial to understanding the proceeding inHon‟ble court are as follows:1. In a criminal matter offence in Sec- 489(b) & 489(c) related to counterfeit currency, charged had not been framed in trial court & accused were facing jail time for long 3 years, in an appeal before High court under Sec-482 cr.p.c. The high court did not quash the proceedings in case of delay as it caused prejudice to the rights of the accused, however Hon‟ble court hereby direct to hear the matter expeditiously as possible.2. In “work of defense act” case, the matter again listed for hearing, learned counsel raised several issues like regarding the statutory lapse by concerned authorities and raise a contention due to such lapse such restrictions cannot permissible. In which scope and application of Sec-3, 7 & 9 of aforesaid act was contented by learned counsel.Again the matter is revolving around the word “crest” & “outer parapet”. However the matter adjourned.Research Question:To understand the scope & application of the word “crest” and “outer parapet” in the sense inWorks of Defense act, 1903 were under section-7 under the heading “Restriction” of said act,the phrase used is “crest of the outer parapet of the work”?Researcher undergone through various journals, books and dictionary like “The 1911 ClassicEncyclopedia”, “Merriam Webster Dictionary”, “Glossaryof Terms3for InterpretingTennessee‟s Civil War Era Military Sites”, “U.S. Military4 History , L series, No.13, May15, 1943”, under which the terms were explained.Based on which report is submitted bythe researcher.» Day 7: Date: 7th Feb 2013The Two-Judge bench comprising Lordship K.S. Radhakrishnan, J.& Lordship DipakMisra, J.held in court room 10, regular matters are listed, proceeding commences as follows:Judgment delivered by K.S. Radhakrishnan, Criminal Appeal arising out ofjudgment of High Court of Punjab and Haryana in caseGurvail Singh @ Gala & Another v.The state of Punjab where HC dismissed the appeal matter connected with Sec-302, 34 IPCwhere death sentence was
  8. 8. Facts: Accused caused death of four persons and nature of injuries they have inflicted, infront of PW1, whose son, daughter-in-law and two grandchildren were murdered related to aproperty dispute.Held:In this case, the Hon‟ble courtconsiders various aspects of “rarest of rare principles” inlight of judicial precedents in awarding death sentence. Wherein court held considering thetotality of the facts and circumstances of this case we hold that imposition of the deathsentence on the appellants was not warranted but while awarding life imprisonment to theappellants, we hold that they must serve a minimum of thirty years in jail without remission.The sentence awarded by the trial court and confirmed by theHigh Court is modified asabove. Appeal partly allowed.Regular matters are listed, some of them which are crucial to understanding the proceeding inHon‟ble court are as follows:1. In the matter, the person was issued caste certificate in the undivided State of Bihar, after the division of the State of Bihar into State of Jharkhand, the person comes in the new area, the issue is whether creation of new statecreates or extinguish the rights of people in that state? As in this matter, candidate pastes certain state exam where he/she was called to producea caste certificate issued by new state(Jharkhand), whether such creation of new state affects its special right granted by statute, like reservation. As the caste certificate issued by authority from Bihar is not accepted by authorities in Jaharkhand, whether such activities arepermitted in the eye of law? The question asked by the Hon‟ble court whether appellant ever approached to the concerned authorities in the state of Jharkhand. Another is whether is it the duty of the state to tell public by way of notification or clarification to show that certain persons may lose their reserved status? Whether bifurcation of the statecreates or extinguish vested rights of the people? However the matter is postponed.2. In the matter, under Sec-498A, cruelty whether a continuing offence? If not? Which court has the jurisdiction to try the case? As matter alleged by learned counsel is that cruelty occur over the phone so cause of action arose to the one who actually heard at the end place. However the case is transferred to mediation center.3. It is the famous case, a pandal fire case that occurred in 2006, question at issue is whether the state or the contractor or the concerned officers who are liable for such incident, whom to fasten with how much monetary liability to pay the total amount to the victims and the family members of deceased. As in this case a trial is pending for last 6 years, that is the action against concerned officers. A number of issues raised by the state, that the Hon‟ble Court has to consider the Uphar Cinema case, give their judgment or order in the light of aforesaid followed the decision, whereby deciding to fix upto 25% liability on the state to pay to the concerned victims while contractor who are without necessary approval, faulty construction of fixation(tent or pandal)& wrong practice liable for such heinous burning resulting in death of around 65 persons.» Day 8: Date: 8th Feb 2013
  9. 9. The Two-Judge bench comprising Lordship G.S. Singhvi, J.& Lordship Dipak Misra,J.held in court room 6, proceeding commences as follows:Miscellaneous matters, generally related for directions and office report, adjourned mattersand fresh matters mostly related to delay in filling SLP or Ex-party stay or order or seekpermission to file additional matters. Around 70 matters are listed today, some of them whichare crucial for the understanding of proceeding in Hon‟ble court are as follows: 1. A transfer petition is filed to transfer the case from Delhi to Greater Noida, however Hon‟ble court simply asked what is the exact distance between Delhi &Greater Noida, which is just 65km, court hereby concluded to decline to interfere and dismiss the petition. 2. Mostly around30-40 matters related to transfer petition & to condone the delay are dismissed. 3. Court come to the knowledge that false affidavit was filed by the police, as the concerned person was already available before police but police did not examine such person, as per the story by police that the concerned person is absconding from investigation, court took the cognizance and asked the state that false affidavit by a police inspector, why shouldn‟t the court take action under Sec- 197 IPC? 4. In a criminal matter, which is a large scale riot, where 88 accused were alleged to perform or involve in such riot, 60 accused were absconding, participation is not of a specific nature, no clear allegation with respect to anybody, hence the Hon‟ble court direct the petitioners to be released on bail.» Day 9: Date: 9th Feb 2013Research Question:To understand the scope of “per incuriam” doctrine and how it has been utilized by commonlaw courts in England and U.S. and how it has been enunciated by Supreme court of India byunderstanding the application of “per incuriam” doctrine?Researcher today anaylzed the doctrine as per the concept applied by courts in India in caseslike Philip Jeyasingh v. The Joint Registrar5,RashmiRekhaThatoi&Anrv.s State ofOrissa &Ors, SibnathKoley And Ors. v. State Of West Bengal And Ors, OfficialLiquidator v. Dayanand and Others6where it is concluded that the decisions of the Court ofAppeal upon questions of law must be followed by Divisional Courts and Courts of firstinstance, and as a general rule, are binding on the Court of Appeal until a contrarydetermination has been arrived at by the House of Lords.» Day 10: Date: 10th Feb 2013Continue to do research on the topic “per incuriam”. Since the doctrine emerged from theEnglish law, the researcher feel to continue it research on the relevant topic to understand itsscope and applicability of English law. The relevant doctrine is fundamentally similarlyapplied in India as in the courts by England. But for the consideration the following landmarkdecision in cases like In London Street Tramways Co. v. London County Council7,5 (1992) 2 MLJ 3096 (2008) 10 SCC 17 (1898) AC 375
  10. 10. Young v Bristol Aeroplane Company Limited8,Morelle Ltd v Wakeling9 Duke vReliance Systems Ltd10,Cassell& Co Ltd v Broome11.The Court of Appeal is bound tofollow its own decisions and those of courts of co-ordinate jurisdiction, and the "full" court isin the same position in this respect as a division of the court consisting of three members.The only exceptions to this rule are: -(1.) The court is entitled and bound to decide which of two conflicting decisions of its own itwill follow;(2.) The court is bound to refuse to follow a decision of its own which, though not expresslyoverruled, cannot, in its opinion, stand by a decision of the House of Lords;(3.) The court is not bound to follow a decision of its own if it is satisfied that the decisionwas given „per incuriam‟ , e.g., where a statute or a rule having statutory effect which wouldhave affected the decision was not brought to the attention of the earlier court.Submitted the research report on topic “per incuriam”.» Day 11: Date: 11th Feb 2013Today the Hon‟ble court sit to hear the miscellaneous matters, generally related for directionsand office report, adjourned matters and fresh matters mostly related to delay in filling SLPor Ex-party stay or order or seek permission to file additional matters. Around 70 matters arelisted today, some of them which are crucial for the understanding of proceeding in Hon‟blecourt are as follows: 1. Petitioner alleges in a criminal matter that his request to investigate the matter by CBCID or CBI was rejected by High Court as in this matter the accused is connected in some way to Comissioner due to which it is impossible to have the police impartial who working under him, however such requested is rejected by the Supreme Court, saying that it is not a ground to transfer such cases to CBI. 2. In a matter, learned counsel allege that the accused has already undergone his main imprisonment & also the imprisonment for which he had not paid the fine, already gone more than 2 years to be released from jail, the court directed the standing counsel to release that person from jail. 3. In a civil matter, suit for possession of land, petitioner is not made parties to the suit, the court order that his rights are reserved even if the decree is granted. 4. In a matter, Sec-420 IPC ,learned counsel contended that it is not a matter of fraud and made an argument that here agreement was made to run a business, which was failed, to re-continue he needed money, that is not a case of fraud or cheating , although chargesheet has been filed. Court order not to interfere here, asked the party to face the trail. 5. In a case, where fraud by educational institution to get an approval from AICTE, incident took place about 12 years ago, learned counsel from educational institution alleges that it is a misconception and they are not govern by new said notification, however court ask to clarify what action who had taken against your concerned officer who allege to involve in corrupt practices, AICTE counsel contended that chargesheet has been filed against some corrupt officers & asked to take action & to reject the petition. However the matter is adjourned.The court asked to file counter affidavit by AICTE.8 [1944] 1 KB 7189 [1955] 1 All ER 708, [1955] 2 QB 37910 [1987] 2 WLR 122511 (No 1)[1972] UKHL 3 (23 February 1972)
  11. 11. » Day 12: Date: 12th Feb 2013Research question:Whether if the punishment or penalty is altered by law through amendment & maximumpunishment or penalty is unaltered, is it an ex post facto, a law which is violative of art.20(1)?In doing the research, the researcher come to three case laws, two from U.S. court andanother one is from Indian Courts, which laid down the principles & its application involvedin ex-post facto law, one is Calder v. Bull 3 U.S. (3 Dall) 380 which laid down four principlesregarding ex-post facto law as said “I will state what laws I consider ex post facto laws,within the words and the intent of the prohibition”:1. Every law that makes an action done before the passing of the law, and which was innocent when done, criminal; and punishes such action.2. Every law that aggravates a crime, or makes it greater than it was, when committed.3. Every law that changes the punishment, andinflicts a greater punishment, than the law annexed to the crime, when committed.4. Every law that alters the legal rules of evidence, and receives less, or different, testimony, than the law required at the time of the commission of the offense, in order to convict the offender.and the other is Dobert v. Florida (1977) 432 U.S. 282 which says that even if the punishmentor penalty is modified where its maximum limits is unaltered, then it is just a proceduralchange and it does not affect the vested rights of accused and it is not violative of Art. 20(1)of the Indian Constitution.Similarly in SatwantSingh v.The state of Punjab (1960) 2 SCR 89&Union Of India And Others vs Super Processors (1993) IILLJ 203 Bom HCthat maximumpenalty remains unaltered as this is prescribed by Section 14-B which remains the same.Therefore, when the exercise of discretion is governed by more rational and generally betterguidelines, such guidelines must be applied from the date when they come into existence.» Day 13: Date: 13th Feb 2013The Two-Judge bench comprising Lordship K.S. Radhakrishnan, J.& Lordship DipakMisra, J.held in court room 10, regular matters are listed, proceeding commences as follows:Judgment delivered by K.S. Radhakrishnan, Civil Appeal against the order of Two-Judge bench High Court of Madhya Pradesh, Jabalpur Bench.Facts:Whether two constables & ASI who have been found guilty can also claim equality oftreatment, if they can establish discrimination while imposing punishment when all of themare involved in the same incident where ASI was demoted to constable rank while twoconstable were suspended in case alleging bribery.Held:Punishment should not bedisproportionate while comparing the involvement of co-delinquentswho are parties to the same transaction or incident.The Disciplinary Authoritycannot impose punishment which isdisproportionate, i.e., lesser punishment for seriousoffencesand stringent punishment for lesser offences. Consequently, we are inclined to allowthe appeal by setting aside the punishment of dismissal from service imposed on the appellantand orders that he be reinstated in service forthwith.
  12. 12. Regular matters are listed, some of them which are crucial to understanding the proceeding inHon‟ble court are as follows:1. Here listed the famous pandal case again, as already discussed, now from state side learned counsel argued that the organizer plan was defective, they did not take the mandatory precautionary measures, they even violative the statutory approval necessary in Electricity act, they even are charged for electricity theft. Now from contractor side, learned counsel ShriShanti Bhushan, argued that there is no iota of doubt regarding the said incident, and about the liability of the state, contractor and concerned officers. He then argued that under Art. 32 the victims are claiming damages, (a) if we are talking of financial burden, then it is case of tort of negligence causing death and injury where questions arise is how to fasten the burden on what principal and like how much? He argued by saying that (i) fire on the account of somebodys negligence (ii) mandatory duty of not stopping the fire (iii) mandatory duty of not helping the people to escape from pandal. (b) Another important question was raised by learned counsel is whether any financial burden can be imposed on the findings of the committee (c) another question was raised by him that the judicial inquiry report should be set aside as his clients were not given equal chance to represent themselves before inquiry & hence it should be set aside.2. In this matter, Bajaj is an employer, the case filed bylabour alleging unfair labour practices doing rotational employment policies ofBajajcompany. While the learned counsel contended that the employee/worker were employed on the basis of project based, which according to him if the project is complete they were removed from job until new job arises.The question arises is that (a)whether periodical employment or rotational employment concerned to be regular employment, (b)whether such employment create or passes any benefits to workers, (c) whether such practices can be considered as unfair labour practices. (d) Whether the principle of res judicata applies here (e) whether the joint memorandum filed in labour court, if yes then what were its effects?ResearchWork:What are“unfair labour practices”under “Industrial Dispute Act, 1947”and to see howdifferent courts have applied “The Maharashtra Recognition of trade unions & prevention ofUnfairLabour Practices act, 1971”?Researcher on the basis of available acts& books draft a report on “Concept of Fairness”,“Background of Unfair Trade Practices”, “Comparison between The MaharashtraRecognitionof Trade Unions And Prevention Of UnfairLabour Practices Act, 1971 &Unfair Labour Practices act, 1971” submitted a report which conclude in brief here includecertain para which are crucial for understanding. Report as hereby follows:„Fairness‟ can be used as a synonym for equitable, reasonable, impartial, just, honest,balanced, according to the rules, right12. All these synonyms contain a high degree of ethicaland moral notions and consequently so do the notion of fairness.13 As such the notion of12 See Poolman Principles of Unfair Labour Practices (1985) 42,and SADWV v Master DiamondCutters Association of SA 1982 ILJ 87 (IC)13 In The Press Corporation 1992 ILJ 391 (A) at 400 C Grosskopf JA in referring to the determinationof unfair labour practices stated: ‘In my view a decision of the court pursuant to these provisions is nota decision on a question of law in the strict sense of the term. It is the passing of a moral judgment ona combination offindings of fact and opinions
  13. 13. fairness is not only difficult to define but is also flexible.14 As Baxter points out, fairness is aconcept that is ambiguous and difficult to ascertain.Authorities cited as follows:H.D. Singh vs Reserve Bank Of India &Ors15, Haryana StateElectronics Development Corporation Ltd. v. Mamni16, Union of India and Ors. v.Ramchander and Anr. (2005) 9 SCC 365which says there in the action on the part of theemployer to terminate the services of an employee on a regular basis and reappoint after agap of one or two days was found to be infringing the provisions of Section 25-F of theIndustrial Disputes Act. This Court held: In this case the services of the respondent had beenterminated on a regular basis and she had been reappointed after a gap of one or two days.Such a course of action was adopted by the Appellant with a view to defeat the object of theAct.» Day 14: Date: 14th Feb 2013The Two-Judge bench comprising Lordship K.S. Radhakrishnan, J.& Lordship DipakMisra, J.held in court room 10, proceeding commences as follows:Judgment delivered by Dipak Misra, Criminal Appeal arising out of SLP incaseSurenderKaushik and others v. State of Uttar Pradesh and others. against the order dated12.10.2012 passed by theTwo-Judge bench of the High Court of Judicature atAllahabad inCriminal Miscellaneous Writ Petition No.15077 of 2012 wherein the High Court hasdeclinedto quash the FIR No. 442 of 2012 registered at P.S.Civil Lines, Meerut, that hasgiven rise to Crime No.491 of 2012 for offences punishable under Sections406, 420, 467,468, 471, 504 and 506 of the IndianPenal Code (for short “the IPC”).Facts:Whether two FIR can be lodged in the same incident alleging different facts, filed atdifferent time, or can a counter FIR can be lodged& whether appellants had invoked thejurisdiction under Article226 of the Constitution for quashment of the FIR ontwocounts.Whetherthe law prohibit the filing of second FIR?The principle is that person shouldnot be vexed twice for the same incident.Held:Court applied the principle that any further complaint by the same complainant orothers against the same accused, subsequent to theregistration of a case, is prohibited underthe Code because an investigation in this regard would have already started and furthercomplaint against the same accused will amount to an improvement onthe facts mentioned inthe original complaint, hence will be prohibited under Section 162 of the Code. Thisprohibition noticed by this Court, in our opinion, does not apply to counter-complaint by theaccused in the first complaint or on his behalf alleging a different version of the saidincident.But to say that it is a second FIR relatingto the same cause of action and the sameincidentand there is sameness of occurrence and an attempthas been made to improvise thecase is not correct.Hence, we conclude and hold that the submissionthat the FIR lodged bythe fourth respondent is asecond FIR and is, therefore, liable to be quashed,does not meritacceptance. Appeal dismissed.Regular matters are listed, some of them which are crucial to understanding the proceeding inHon‟ble court are as follows:1. In a matter, the question arose is what is the effect of 99 year lease? As the lease expired on 7/1/1984, the tenant is operating a weaving mill, and by the enforcement of Sick14 See Cameron, Cheadle and Thompson The New Labour Relations Act (1989) at 13915 1986 AIR SC 132, 1985 SCR Supl. (2) 84216 MANU/SC/8137/2006 : (2006)IILLJ744SC
  14. 14. Industrial Undertaking act 1985, all the rights, title etc vested in state government as possessed by the owner. Another question is according to the aforesaid act who is owner, whether landowner or tenant? As a tenant who is operating a said mill, get the compensation as decided by authority so question raise by learned council what will landowner would get, as he has dispossessed from the land, he did not get the compensation & he is not getting even the rent, in any circumstances he is the actual title holder of the land. In effect of 99 year lease, what is perpetual lease in the eye of law & whether it is permanent lease? However the matter is adjourned.2. In a matter of Aligarh Muslim University, where question in title was in dispute, another is whether Section 163 of the U.P. Tenancy Act is applicable as stated by Aligarh Muslim University for recovery of certain land revenue and for ejectment of defendants on the ground that the plaintiff is Zamindar of the land in dispute and defendants are occupancy tenants/Hereditary Tenants?The respondent learned counsel further averred in the objection that the land in dispute Zamindari was abolished on 1.7.1952. Thereafter, the land in dispute came within the municipal limits of Nagar MahaPalika in 1959. Defendants acquired Bhumidhar rights of the land in dispute. Application under Section 163 of the U.P. Tenancy Act was not maintainable. Where the Aligarh Muslim University, specifically pleaded that the Aligarh Muslim University is an Institute of public utility and was established for public purposes. However the matter is adjourned.» Day 15: Date: 15th Feb 2013Miscellaneous matters, generally related for directions and office report, adjourned mattersand fresh matters mostly related to delay in filling SLP or Ex-party stay or order or seekpermission to file additional matters. Around 66 matters are listed today, some of them whichare crucial for the understanding of proceeding in Hon‟ble court are as follows: 1. In a case related to maintenance, women remarried, husband approach under Art.136 to set aside the maintenance, the court directed the petitioner that to approach a proper forum, when statutory remedy is provided petitioner should avail the same, as Sec127(3) Cr.p.c provided the statutory remedy in case the women re-married to modify or set aside the maintenance, the husband should approach the magistrate holding the jurisdiction and not by the way of SLP. 2. In a case of cheating, fraud embezzlement, where crores and crores of rupees are alleged, investigation is not over, bail cannot be granted. Bail denied. 3. Most of the matter is related to transfer, condonation of delay or stay of application or whether issue notice was received or not? 4. In a case, related to bail, first bail was granted on medical grounds as accused undergone angioplasty, then another bail is granted during recovery period, then he surrendered himself, and collector granted parole, again petitioner/accused come before the Hon‟ble court on medical grounds, here court declined to interfere and order him to surrender before police and go to jail custody, if in case he need any medical facilities such can be provided in jail.» Day 16: Date: 16th Feb 2013
  15. 15. Case Study :M/s. Gian Chand & Brothers and Another v. Rattan Lal @ Rattan SinghFacts: Civil action for recovery of a total sum of Rs 10,45,620/-along with pendentelite andfuture interest at @18% per annum. Plaintiff No. 1 is a registered partnership firm carryingthe business of commission agent for sale and purchase of food grains which advances moneyto the agriculturists and charge commission on the sale price of the agricultural produce soldas determined by the market committee. The respondent-defendant(hereinafter referred to as“the defendant”) had been maintaining regular and long standing current account with theplaintiffs. A sum of Rs.5,80,000/- stood in the name of the defendant towards outstandingbalance and he had acknowledged the same under his signature in thecorresponding accountentry in the account books of the plaintiffs.Fact in Issue:(i) Whether asuit for recovery could be decreed when thepleadings and evidence led by the plaintiffs were atsubstantial variance;(ii) Whether the plaintiffs couldbe said to have established its case, particularlywhen the defendant had denied the factum ofborrowing any sum and the signatures on the cashbook and no evidence including document/fingerprint expert was led by the plaintiffs to establish thesignatures of the defendant in the account books;(iii) Whether it was obligatory on the part of the plaintiffto prove the alleged signatures of the defendant inthe cash book when they had been disputed; and(iv) Whether the admission of the defendant could beassumed in the absence of clear and unambiguousadmission of the party to the litigation.Held:It is manifest that the signatures are proven by the witnesses and they have beenmarked as exhibits without any objection. Thus, there was no plea whatsoever as regards thedenial of signature or anykind of forgery or fraud. The present case is not one such casewhere the plaintiffs have chosen not to adduce any evidence. They have examined witnesses,proven entries in the books of accounts and also proven the acknowledgements duly signedby the defendant.The defendant, on the contrary, except making abald denial of theaverments, had not statedanything else. That apart, nothing was put to thewitnesses in thecross-examination when thedocuments were exhibited. He only came with aspacious plea inhis evidence which was not pleaded.Thus, we have no hesitation in holding that theHighCourt has fallen into error in holding that it wasobligatory on the part of the plaintiffs toexamine thehandwriting expert to prove the signatures. Thefinding that the plaintiffs hadfailed to discharge theburden is absolutely misconceived in the facts of thecase.» Day 17: Date: 17th Feb 2013Case Study :Municipal Corporation Rajasthan v. SanjeevSachdeva and othersFact in Issue:Cases concerned with the interpretation of Section 173-A of the RajasthanMunicipalities Act 1959, as amended by the Rajasthan Municipalities Amendment Act 1999(Act No.19 of 1999), which deals with the power of the State Government to allow change inuse of land on payment of conversion charges.Division bench order: Municipal Corporation is not empowered todemand any amount forchange of use of the land
  16. 16. Held:Amended Section 173-A not only restricts the change of useof land, as the same hasbeen allotted by the municipality or theState Government, but also put restrictions if the landhas beenallotted by any other local authority. Section 173-A(2) covers thecases which are noteven covered by Section 173-A(1) and bringsin its fold even the change of use of land whichis not inconsonance with the Master Plan. Further Section 173-A(1) (2)and (3) alsocontemplates a situation wherein the StateGovernment is entitled to levy conversion chargesif the change in use from one purpose to other purpose. We may, in this respect, also indicatethat, in exercise ofpowers conferred under Section 297 read with Section 173-A ofthe 1959Act, 2000 Rules were promulgated. Weare of the view that the demand is legal and valid andinaccordance with the provisions of Section 173-A, as inserted byAmendment Act 19 of 1999read with 2000 Rules. We are also ofthe view that the Rajasthan High Court has committedan error inapplying the Judgment of this Court in ParesharSoni’scase(supra) which wasdealing with the un-amended provision ofSection 173-A.» Day 18: Date: 18th Feb 2013Miscellaneous matters, generally related for directions and office report, adjourned mattersand fresh matters mostly related to delay in filling SLP or Ex-party stay or order or seekpermission to file additional matters. Around 66 matters are listed today, some of them whichare crucial for the understanding of proceeding in Hon‟ble court are as follows:1. In a Bail petition, the reason given is hypertension, the court rejected the argument contended the learned counsel, not a ground to give bail.2. Question arose is whether another FIR can be filed for the similar event? Whether it is mandatory for police to file FIR? In this case, first FIR filed, preliminary investigation took place, no cognizable offence found out, henceplice file closure report. After 6 month another FIR was filed with identical allegation. Matter adjourned to hear state response.» Day 19: Date: 19th Feb 2013The Two-Judge bench comprising Lordship Dattu, J.& Lordship Dipak Misra, J.held incourt room 6, proceeding commences as follows:Judgment delivered by Dipak Misra, J.The Government of Andhra Pradeshand Others v.Ch. Gandhi in a civil appeal against the judgment of the High Court of Judicature, AndhraPradesh at Hyderabad on theground that the disciplinary authority had imposedtwo majorpenalties.Facts:That disciplinary proceeding under Rule 5 of theRules was initiated against therespondent, a SeniorAccountant in the Office of the Sub Treasury,Nakrekal, on the chargesthat while functioning asthe senior most Accountant in the said office and inchargeof thestrong room keys, he was absent and had notsigned the attendance register in token of hishavingattended the office and also not maintained themovement register as required under theRules; thathe had failed to keep the currency chest book in thecurrency chest and notendorsed every transaction& various other gross irregularities which after enquiry by anofficer i.e. after following the requisite procedure, imposed the penalty of reversion to thepost of Junior Accountant for two years with the stipulation that there would bepostponement of future increments.Facts in Issue:
  17. 17. 1. High Court held that imposition of two penalties and, accordingly, set aside the punishment which had been concurred with by the tribunal. 2. And another thing in effect found that rule has been amended retrospectively would it prejudice the accused which permit such punishment where disciplinary proceedings were started before the amendment? 3. Whether date of the decision is the relevant date to attract the applicability of the rule amended after the commission of an act?Held:It would be difficult to say that the employee had the vested right to beimposed aparticular punishment as envisaged under the unamended rules. Once the charges have beenproven, he could have been imposed the punishment of compulsory retirement or removalfrom service or dismissal from service. The same being a lesser punishment than themaximum, in our considered opinion, is imposable and the disciplinary authority has notcommitted any error by imposing the said punishment, regard being had to the nature of thecharges. The orders passed by the High Court are set aside and the orderof punishmentimposed by the disciplinary authority is restored.Judgment delivered by Dipak Misra, a matter of State of Madhya Pradesh v.GirirajDubey in criminal appealFact in issue: High Court impugned order does not remotely reflect any reason, for the HighCourt has only stated that the prosecution hasfailed to establish the offence against therespondent by adducing adequate evidence. It is urged by him that it is obligatory on the partof the High Court to give reasons while dismissing the application for leave.Held:The order passed by the High Court is set aside and the matter isremitted to the HighCourt to pass a cogent and reasoned order relating to grant or refusal of leave.Regular matters are listed, some of them which are crucial to understanding the proceeding inHon‟ble court are as follows: 1. In a matter, land acquisition & compensation. Main issue is whether the landowners are liable to pay development cost when their land is acquired by government, question of rate of compensation was decided by collector, then the aggrevied party challenges it to the High court, High court order the collector to decide it as the market rate is prevailing, then again aggrevied party reach the Two-Judge bench challenge the order of collector that rate should be modified from the date of acquisition, but here High court modified the order but reduce the amount of compensation saying that development cost has to be bear by landless, as entire area is urbanized, area now cease to become agriculture land and second point is the interest to be paid from the date of acquisition. Matter as heard by Hon‟ble court order that land losers are not liable to development cost. 2. Question arose is whether pension can be subject to micro-classification? In this case, petitioner federation of pensioners association while P2-P23 are pensioners, here SBI make a request to reconsider the pension scheme to central government which was denied, however on repeated request by pensioners before govt. , they did not responded. Here the classification is based on date of retirement. Matter is adjourned for further hearing.Research Question:To analyze and understand the scope and ambit of Sec-50 NDPS Act, 1985 particularlyinregard to the admissibility of the evidence collected by an investigating officer during asearch and seizure conducted in violation of the provisions of Section 50 of the NDPS Act?
  18. 18. Researchercomes across decisions like VijaysinhChandubhaJadejavs State Of Gujarat17 ,The State Of Punjab vsBaldev Singh), MadanLal And Anr. vs State Of HimachalPradesh18, Joseph Fernandez v. State of Goa19, , T.T. Haneefavs State Of Kerala20, Stateof Punjab v. Balbir Singh21where divergent opinion were shown by supreme courts as thepunishment under NDPS act is quite high and of serious nature, require relevantconsideration whether sec-50 casts a duty on the empowered officer to `inform the suspect ofhis right to be searched in the presence of a Gazetted Officer or a Magistrate, if he so desiresor whether a mere enquiry by the said officer as to whether the suspect would like to besearched in the presence of a Magistrate or a Gazetted Officer can be said to be duecompliance with the mandate of the said Section? And whether sec-50 is applicable for thesearch of bag,vehicle& premises etc also?As per concluded by courts from time to time even after amendment under sec-50 that rightunder Section 50(1) of the NDPS Act, by way of a safeguard, has been conferred on thesuspect, check the misuse of power, to avoid harm to innocent persons and to minimisethe allegations of planting or foisting of false cases by the law enforcement agencies, it wouldbe imperative on the part of the empowered officer to apprise the person intended to besearched of his right to be searched before a gazetted officer or a Magistrate.“We have no hesitation in holding that in so far as the obligation of the authorized officerunder sub-section (1) of Section 50 of the NDPS Act is concerned, it is mandatory andrequires a strict compliance. Failure to comply with the provision would render the recoveryof the illicit article suspect and vitiate the conviction if the same is recorded only on the basisof the recovery of the illicit article from the person of the accused during such search.A barereading of Section 50 shows that it only applies in case of personal search of a person. It doesnot extend to search of a vehicle or a container or a bag, or premises. (See Kalama Tumba v.State of Maharashtra and Anr. , The State of Punjab v. Baldev Singh (JT 1999 (4) SC595), Gurbax Singh v. State of Haryana (2001 (3) SCC 28). The language of Section 50 isimplicitly clear that the search has to be in relation to a person as contrasted to search ofpremises, vehicles or articles. This position was settled beyond doubt by the ConstitutionBench in Baldev Singhs case (supra). th» Day 20: Date: 20 Feb 2013Research Question:To analyze and understand the scope and requirement of ingredients that should be proventobring record under conviction under Sec-7 & Sec- 13(1)(d) read with Sec-13(2) under thePrevention of Corruption Act, 1988?The researcher examined the decisions of various Hon‟ble courts where aforementionedsections were under scrutiny. In short certain decision which are felt relevant underconsideration are DR.Anup KumarSrivsatava&Anr v. CBI22, C.K. JafferSharief Vs.State (Through CBI)23, Soma Chakravarthy v State24, TarlochanDev Sharma v. State of17 [(2011) 1 SCC 609]18 18 Equivalent citations: AIR 2003 SC 3642, 2003 (2) A 1999( 3 LD Cri 688, 2003 CriLJ 386819 2001 (1) SCC p.70720 Equivalent citations: 2004 CriLJ 2853, 2004 (94) ECC 199, AIR 2004 SC 331621 (1994 (3) SCC 299)22 2012 (11) TMI 953 (DELHI HIGH COURT)23 (2012) 39 SCD 72124 2007 (5) SCC 403.
  19. 19. Punjab, 25Kanwarjit Singh Kakkar v. State of Punjab And Anr26, State of Maharashtrav. DnyaneshwarLaxamanRaoWankhede27, (C.M. GirishBabuvs CBI, Cochin, HighCourt of Kerala)28,MadhukarBhaskarrao Joshi vs State Of Maharashtra29, Suraj MalVs. State (Delhi Admn.)30, Trilok Chand Jain vs State Of Delhi31where it is concludedthatThe essential ingredients of Section 7 are that(i) the person who accepts gratification should be a public servant,(ii)he should have accepted the gratification for himself and the gratification should be as amotive or reward for doing or forbearing to do any official act or for showing or forbearing toshow, in the exercise of his official function, favour or disfavour to any person or forrendering or attempting to render any service or disservice to any person.Insofar as Section13 (1) (d) of the Act is concerned, the essential ingredients are(i) He should be a public servant(ii) He should have used corrupt or illegal means or otherwise abused his position as such public servant and(iii) He should have obtained a valuable thing or pecuniary advantage for himself or for any other person. Without any public interest a) In Section 13(1) (d), the word used is „obtained‟. The Apex Court in the case of C.K. Damodaran Nair v Govt. of India [(1997) 9 SCC 477] had the occasion to consider the word „obtained‟ used in Section 5 of PC Act, 1947, which is now Section 13(1)(d) of the Act of 1988. It was held in para 12 thus: “The position will, however, be different so far as an offence under Section 5 (1)(d) read with Section 5(2) of the Act is concerned. For such an offence prosecution has to prove that the accused obtained the valuable thing or pecuniary advantage by corrupt or illegal means or by otherwise.” b) That dishonest intention is the gist of the offence u/s. 13(1)(d) is implicit in the words used i.e. corrupt or illegal means and abuse of position as a public servant.Thats an honest though erroneous exercise of power or indecision is not an abuse of power. A decision, action or instruction may be inconvenient or unpalatable to the person affected but it would not be an abuse of power. It must be such an abuse of power which would render a Councilor unworthy of holding the office of President. c) The demand of illegal gratification is a sine qua non for the constitution of an offence under the provisions of the Prevention of Corruption Act, 1988. In arriving at the conclusion as to whether all the ingredients of an offence - demand, acceptance and recovery of the amount of illegal gratification have been satisfied or not. d) The court took the view that mere recovery of tainted money divorced from the circumstances under which it is paid is not sufficient to convict the accused when the substantive evidence in the case is not reliable. The mere recovery by itself cannot prove the charge of the prosecution against the accused, in the absence of any evidence to prove payment of bribes or to show the accused voluntarily accepted the money knowing it to be bribe.25 (2001) 6 SCC 260:26 [2011] 6 S.C.R. 89527 (2010) 2 SCC (Cri.) 38528 (2009) 3 SCC 77929 [2000 (8) SCC 571]).30 [(1979) 4 SCC 725],31 1977 AIR 666, 1976 SCR (1) 348
  20. 20. » Day 21: Date: 21th Feb 2013The Two-Judge bench comprising Lordship H.L. Dattu, J.& Lordship Dipak Misra, J.heldin court room 6, proceeding commences as follows:Regular matters are listed, some of them which are crucial to understanding the proceeding inHon‟ble court are as follows:1. In a criminal matter, where offence under Sec-302, read with Sec-148, 149IPC were found and session court convicted 11 accused while the high court convict 6 accused while acquit others. The petitioners main contention was that his injuries were unexplained by the prosecution, that the main accused and the driver who were driving the tractors were acquitted, that there is not personal amity between accused and the deceased, in this incident one person died and two were seriously injured, total 11 accused on a tractor trespass the land cultivating by the victims and the deceased and carrying lethal weapons hits so hard that one person died on the spot. The statealleges that although 5 were acquitted because of their actual participation in the incident was unexplained by the prosecution but their presence was proved. The Hon‟ble court after hearing rejected the contention alleged by the appellant and found guilty under Sec-302 reads with Sec-149 IPC and rejected the contention to convert the punishment to Sec- 304(II) IPC.2. In a criminal matter, 10 accused convicted under Sec-302 IPC so they come in appeal, were both session court a high court punished them under Sec-302 IPC, hear challenges to convert 302 to 304(II)IPC, alleging the there is a delay in filing FIR, that the incident took place in dark morning it is difficult to identify the persons. Other than that so many grounds were raised by the learned counsel but court reject the plea and found all the accused guilty under Sec-302IPC.3. In a matter, abetment of suicide case, state allege story is that boy come to girl house and the threat or intimidated the girl‟s father that he will come by the evening, make ready your answer when you are about to marry her daughter with him, the question arose simply whether such threat comes under abetment to suicide? The Hon‟ble courtgives its answer in negative, that is not a case of abetment in any sense and dismiss the appeal.» Day 22: Date: 22nd Feb 2013The Two-Judge bench comprising Lordship K.S. Radhakrishnan, J.& Lordship DipakMisra, J.held in court room 10, proceeding commences as follows:Judgment delivered by K.S. Radhakrishnan, Civil Appeal in case State of Keralaand Others v. Kandath DistilleriesFacts in Issue: (1)Whetherthe High Court can issue a Writ of Mandamus under Article 226ofthe Constitution of India, directing the State to part with its exclusive privilege, in thematter of granting licence forestablishing distilleries under the Foreign Liquor(Compounding,Blending and Bottling) Rules, 1975 (for short “1975 Rules”) readwith Section14 of the Abkari Act (for short “the Act”).(2)Whether exercise of statutory discretion mustbebased on reasonable grounds and cannot lapse into thearbitrariness or caprice anathema tothe rule of law envisaged inArticle 14 of the ConstitutionHeld: AWrit of Mandamus can be issued in favour of an applicant whoestablishes a legalright in himself and is issued against anauthority which has a legal duty to perform, but has
  21. 21. failed and/or neglected to do so, but such a legal duty should emanate either inthe dischargeof the public duty or operation of law.Miscellaneous matters, generally related for directions and office report, adjourned mattersand fresh matters mostly related to delay in filling SLP or Ex-party stay or order or seekpermission to file additional matters. Around 57 matters are listed today, some of them whichare crucial for the understanding of proceeding in Hon‟ble court are as follows: 1. In a transfer petition from U.P. to Delhi, contending that there is a threat of life, matter connected to Sec.138 N.I. Act, 1881 but petitioner contended that there is a gang involved, extortion can take place, Hon‟ble court rejects the application that it is not a ground to transfer the case from U.P. to Delhi instead court can grant protection and order the S.P. of that area to provide necessary protection. 2. In a matter, offence related to Sec-304(II) IPC, the issue is related to bail, trial is going on, the court denied the bail application, as charges are serious. 3. In a matter, civil matter, the lease is void but the question arose is whether any benefit should be passed to landless who are cultivating the land, in lower court three suits were filed, one suit by landless for injunction & possession, one suit by owner for possession, one suit by a new owner who purchase the land for a possession. However the matter is adjourned. 4. In a case, the question arose is whether highlighting the answer sheet is ground for rejection and whether it reveals the identity of the candidate, whether it shows a malafide intention? As the matter was filed too late, another candidate was already posted in the advertise post, no vacant seat, even the lower court find discrepancies in the copy, matter dismissed. 5. In a service matter, the question arose about the right of the ad - hoc employee, in regularization. Whether a diploma holder who in the tenure of service, if he gain an additional qualification, or developed any skill can render additional benefits and can be ground which to be accepted in a new post for the same service. What is regular & temporary service? However the matter adjourned. 6. In a NDPS matter, petitioner undergoing 5 years RI, in an appeal he allege that he was falsely implicated in the charges as he was running a dhabha and police in the non payment of the money alleged by police roped him in such offence, another contention was that IO was not examined, and he was not holding any bag which alleged to have him even there is the violation of sec-50 of NDPS act, while state contended that it was a chance revocery, where patrol police while patrolling found him suspicious and on checking the bag he holding found 5kg of drugs(herione) another gound that allege by petitioner is that there is no independent witness. Matter heard by the Hon‟ble court found that there is the concurrent finding of two courts in the question of law as well as facts, no need to intervene, matter dismisses.
  22. 22. » Day 23: Date: 23rd Feb 2013Case Study :ArunBhandariv.State of U.P. and othersFacts:Appellant is an NRI living in Germany while looking for property, came in contact ofrespondent no.2 and her husband, who claim to be the owner of the property, agreement wasexecuted, husband and wife jointly received a sum ofRs.1,05,00,000/- from the appellanttowards partpayment of the sale consideration, on inquiry appellant came to know that theoriginal allottee has executed a POA in the favour of respondent no 3. On instituting FIR, IOsubmits a closure report saying that it is a civil case & no criminal offence has been madeout. Appellant has then fileda protest petition before a Magistrate, which took cognizance ofcase, however on representation before S.P. of that area, which transferred the case to anotherS.I., it came to know that both the S.I. has colluded and file a closure report, but after seeingthe case diary it seems that offence has been made out. he made an entry to file the charge-sheetagainst the respondents under Sections 420, 406,567, 468 and 479 of the IPC. At thisstage, theaccused persons again colluded with the previousInvestigating Officer and theStation House Officerand got the investigation transferred to the previousInvestigatingOfficer. However Magistrate took the cognizance of case after filing the protest petition, casediary & other documents, under Sec 406, 420 IPC.Session judge: Respondent alleges that it is a matter of breach of contract & not a case offraud or cheating, however session judge found that allegations prima facie constituted acriminal offenceand it could not be said that it was a pure & simpledispute of a civil nature.High Court:High Court under exercising the jurisdiction under Art. 226/227 quashed theorder passed by the learned CJM taking cognizance of offence under sec-406,420 IPC againstrespondent in the exercise of power under sec-190(1)(b) of cr.p.c, saying that there is noprivity of contract between the appellant and respondent no.3 hence offence not made outagainst the said respondent.Held:The entireconduct of the respondent Nos. 2 and 3 would showthat a prima facie case ismade out and allegations arethere on record in this regard that they had theintention to cheatfrom the stage of negotiation. In view of our aforesaid analysis we allow the appeal,set asidethe order passed by the High Court and directthe Magistrate to proceed in accordance withlaw.» Day 24: Date: 24th Feb 2013Case Study :Vishwanath S/o SitaramAgrawalv.Sau. SarlaVishwanathAgrawalFacts: Husband files a petition under sec-13(1)(ib) of Hindu Marriage Act,1955 for divorce,while respondent wife with whim and irrationality reigned in her day-to-daybehaviour andfrequent quarrels became a daily affair,on certain occasionsshe used to hide the keys of themotorcycle and close the gate sothat the appellant could not go to the office of the factory tolookafter the businessFacts in issue a) Before learned single judge: 1. whether the appellant had been able toprove the alleged cruelty; 2. whether he was entitled to takedisadvantage of his own wrong The learned trial Judgedismissed the application with costs and also dismissed theapplication of the respondent-wife for grant of permanentalimony. b) On appeal, appellate court entaileddismissal of the appeal.
  23. 23. c) On second appeal before high court, hold that there wereconcurrent findings of fact and no substantial question of law was involved. However, the learned single Judge observed thatthe sons of the parties had grown up and have been married;that the parties had no intention to patch up the matrimonialdiscord; and that the marriage had been irretrievably broken butthat could not be considered by the High Court but only by theApex Court under Article 142 of the Constitution.Held:The cruelbehaviour of the wife has frozen the emotions and snuffed out thebrightcandle of feeling of the husband because he has beentreated as an unperson. Thus, analysed,it is abundantly clearthat with this mental pain, agony and suffering, the husbandcannot beasked to put up with the conduct of the wife and tocontinue to live with her. Therefore, he isentitled to a decree fordivorce.» Day 25: Date: 25th Feb 2013Miscellaneous matters, generally related for directions and office report, adjourned mattersand fresh matters mostly related to delay in filling SLP or Ex-party stay or order or seekpermission to file additional matters. Around 68 matters are listed today, some of them whichare crucial for the understanding of proceeding in Hon‟ble court are as follows: 1. In a criminal matter, under sec-323,324 IPC, as the matter contended by learned counsel is compoundable offence and compromise had already been taken place, place on record, allege that the period of punishment should be reduced to the period already undergone, the Hon‟ble court after hearing the parties reduces the sentence to period already undergone. 2. In a matter related to approval of diploma course from the State Board, while the AICTE has already gave them approval, Haryana board of Technical Education pointing out defects calls that teacher student ration is poor in these colleges and not upto norms prescribed by the board as pointed out by committee, another is the faculty appointed is not having adequate experience, however in the light that students should not suffer for the fraud played the colleges, the Hon‟ble court reject the contention placed by board while directing the colleges to not to take fees for the period already undergone by students,reinspection been ordered while the colleges should remove their defects as soon as possible as pointed out by board for second shift. 3. In a criminal matter, the bullet while examining patient in government hospital was missing, case related to sec-201 IPC as alleges by learned counsel, while ward boy was falsely implicated under sec-302, 34 IPC, also alleging the non-possibility of removing while during operation he was not present in O.T. . Matter adjourned for further hearing. 4. In a matter related to grant-in aid, only one grant is offered to particular course in particular area after having fulfilling the requisite formalities, one college who was established before date of advertisement not fulfilling requisite get the grant-in aid even though not fullifiling the 2years experience criteria, while the college who was established long ago but the course was established after 1 year of date of advt. claiming benefit of the circular issued by Chief minister, Matter adjourned directing
  24. 24. the government for reconsider both colleges for grant-in aid as the matter is of exceptional nature. 5. In a matter connected to promotion, based on seniority list here the candidate is transferred from post to all india radio, for deputation basis and after certain years for regular pay if the same is transferred to same cadre level, then the period alreadt undergone in past services should also be consider in new post, however respondent alleges that our dept. employees were not given promotion showing disrcrimination. Matter adjourned for further hearing.Day 26: Date: 26th Feb 2013Research Work:Femalefoeticide in lieu of PNDT act,Day 27: Date: 27th Feb 2013
  25. 25. Day 28: Date: 28th Feb 2013