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Vol-V Part-7

July, 2010

IMPORTANT CASE LAWS

Compiled by Tamil Nadu State Judicial Academy Chennai 28

SUPREME COURT CITATIONS

(2010) 5 Supreme Court Cases 513 V. Kishan Rao Vs Nikhil Super Speciality Hospital and Another Consumer Protection Services Medical practitioners/Services Medical negligence Expert opinion of prima facie negligence, if a precondition for Consumer Forum to proceed with a case No rule of general application, held, can be laid down in this regard Expert opinion is required only when a case is complicated enough warranting expert opinion, or facts of a case are such that Forum cannot resolve an issue without experts assistance On facts held, where a patient who was suffering from intermittent fever and chills, was wrongly treated for typhoid instead of malaria for four days, which resulted in her death, was an apparent case of medical negligence It was not necessary to obtain expert opinion in the first instance before District Forum could award compensation Investigation conducted by another hospital where patient was removed in a critical condition on fifth day, showed that Widal Test for typhoid was negative whereas test for malariral parasite was positive, was sufficient for District Forum to conclude that it was a case of wrong treatment Consumer Protection Act, 1986 Ss. 2(o), 2(g), 13 and 14 Evidence Act, 1872, S.45. Consumer Protection Services Medical Practitioners/services Medical negligence Requirement to obtain independent medical opinion before investigation is initiated against a doctor Direction given in Jacob Mathew Case, (2005) 6 SCC 1, para 52- Held, is meant for criminal cases and not for civil cases filed in Consumer Fora for the purpose of determining civil liability General directions given in Martin F.D Souza Case, (2009) 3 SCC 1, para 106 extending the same to civil cases, held, are per incuriam and not binding Consumer Forum can give appropriate relief on the basis of summary trial on affidavits Consumer Forum can also, in its discretion, permit expert evidence but it is not bound by views expressed by expert because medical negligence is a mixed question of law and fact, to be resolved finally by Forum In complicated civil cases requiring expert evidence, parties are also free to approach civil court instead of Consumer Forum Consumer Protection Act, 1986 Ss, 1(o), 3, 13 and 14 Civil Procedure Code, 1908 S.9 Evidence Act, 1872 - S.45 Penal Code, 1860 S. 304-A. Precedents Per incuriam decision When a judgment is rendered by ignoring provisions of a statute and earlier larger Bench decision on the point, such decision is per incuriam Such judgment is not a binding precedent Constitution of India Art. 141.

Consumer protection Consumer Forums - Practice and Procedure Evidence Act, 1872, if applicable Held, complaints before Consumer For a are tried summarily Evidence Act, 1872 is not applicable For a under Consumer Protection Act, 1986 are to follow principles of natural justice Hence, District Forum could rely upon hospital records without following provisions of Ss. 61, 64, 74 and 75, Evidence Act, 1872 - Consumer Protection Act, 1986 Ss. 13 and 14 Evidence Act, 1872, Ss. 61,64,74 and 75. Consumer Protection Act, 1986 Generally Purpose of the Act Held, is to provide a forum for speedy and simple redressal of consumer disputes Such legislative purpose cannot be defeated or diluted by superimposing requirement of having expert evidence in cases of civil medical negligence, regardless of factual position of a case Kif that is done, efficacy of Act would be curtailed and in many cases remedy would become illusory for common man. (2010) 5 Supreme Court Cases 600 S. Khushboo Vs Kanniammal and Another Constitution of India Arts. 19(1) (a) & (2) Obscenity Reference to sex or calling for social acceptance of premarital sex, if obscene Mode of and norms for determination of Context and purpose for which the reference to sex was made in any given setting, held, must be taken into consideration Moreover, obscenity standards reflecting sensibilities as well as tolerance level of average reasonable person Appellants statement merely referring to increasing incidence of premarital sex and calling for its acceptance but not describing sexual act or saying anything which could arouse sexual desires in the mind of a reasonable and prudent reader, made in context of a survey on sexual habits of people Publication of such statement in news magazine as part of survey, held, not in the nature of obscene communications Possibility, if any, of such statement encouraging some people to engage in premarital sex, inconsequential as that is not an offence Words and Phrases Obscenity Penal Code, 1860, Ss.292, 40,42 and 497. Constitution of India Arts. 19(1)(a) & (2) Morally provocative statement not making out any offence Role of criminal law Abuse of process of court Proper course for Magistrate at cognizance stage Where numerous complaints under provisions of IPC and Indecent Representation of Women (Prohibition ) Act for statement made by accused did not make out a prima facie case for any offence, held, Magistrate ought to have directed investigation into the allegations before taking cognizance - Striking caveat against lightly interfering with constitutional right to freedom of speech and expression , held, there is a presumption in favour of accused in such cases Appellants call for social acceptance of premarital sex, held, could not be subjected to interference under criminal law Further, held, morality and criminality cannot be treated to be coextensive Criminal Procedure Code , 1973 Ss. 190, 202 and 482 Penal Code, 1860 Ss. 153-A, 499, 500, 509,292 Indecent Representation of Women (Prohibition) Act, 1986 Ss. 4 and 6.

Constitution of India Arts. 19(1) and 136 Quashment of criminal proceedings Proceedings Prosecution under Ss. 153-A-A, 499,500,509,292 IPC and Ss. 4 and 6, Indecent Representation of Women (Prohibition) Act, 1986 Complaints not making out prima facie case for any of the offences alleged Criminal proceedings, therefore, quashed Criminal Procedure Code, 1973 S. 482. Criminal Law Particular offences Sexual offences Adults willingly engaging in sexual relations outside the marital setting, held, is not an offence, with exception of adultery as defined under S. 497 IPC Criminal Procedure Code, 1973 S. 2(n) General Clauses Act, 1897 S. 3(38) Penal Code, 1860, Sc 40 to 42 and 497. Penal Code, 1860 - S. 499 Defamation Acts prima facie not amounting to defamation Complaint of such acts if mala fide Determination of Accused in response to survey conducted by news magazine on subject of sexual habits of people residing in big cities, making a statement endorsing in general premarital sex and posing a question as to whether people in Tamil Nadu were not aware of incidence of sex or premarital sex Statement not directed at any individual or even at a company or association or collection of persons Such statement, held, did not constitute prima facie case of defamation of Tamil speaking women Moreover, complainants not having suffered any specific legal injury by said statement, held, were not persons aggrieved within the meaning of S. 199(1) CrPC, 1973 Hence, complaints filed by them, held mala fide - S. 199(1) CrPC, 1973 Hence, complaints filed by them, held, mala fide- More so when most of them were associated with a particular political party Criminal Procedure Code, 1973-S. 199(1). Penal Code, 1860- S. 499 Expln. 2 Scope Tamil- Speaking women, if could be viewed as a class of persons covered by Expln.2. Penal Code, 1860 S. 509 Offence under Ingredients of, restated Grievance with publication of a statement calling for social acceptance of premarital sex made by appellant, held, does not make out said offence. Penal Code, 1860 S. 153-A Applicability Held, not applicable to statement which was neither made on behalf of any group nor was directed against any particular group. Criminal Procedure Code, 1973 S. 199 Requirement of taking cognizance of offence of defamation only upon receiving complaint by a person aggrieved Object of, held, is to discourage filing of frivolous complaints Penal Code, 1860 S.499. (2010) 5 Supreme Court Cases 645 C. Magesh and Others Vs State of Karnataka Criminal Trial - Appreciation of evidence Contradictions, inconsistencies, exaggerations or embellishments Inconsistencies Conviction whether sustainable Held, consistency is the keyword for upholding conviction of an accused There must be a string joining evidence of all the witnesses satisfying the test of consistency Due to inconsistency

in testimonies, improper identification, absence of specific role attributed to A-25 and A-46, conviction reversed. Held: In Criminal jurisprudence, evidence has to be evaluated on the touchstone of consistency. Consistency is the keyword for upholding the conviction of an accused. In a criminal trial, evidence of the eyewitness requires a careful assessment and must be evaluated for its creditability. Since the fundamental aspect of criminal jurisprudence rests upon the stated principle that no man is guilty until proven so, hence utmost caution is required to be exercised in dealing with situations where there are multiple testimonies and equally large number of witnesses testifying before the court. There must be a string that should join the evidence of all the witnesses and thereby satisfying the test of consistency in evidence amongst all the witnesses. Hence, on account of inconsistency, improper identification and in absence of specific role being attributed to A-25 and A-46, their conviction cannot be upheld. Constitution of India -Art. 136 Interference in criminal matters Reappreciation of evidence When called for Exception made and evidence reappreciated since case involved certain alleged odious deeds of few individuals, to impart full and substantial justice Penal Code, 1890, Ss. 302,307, 435, 143, 148 r/w S. 149 IPC. Held: Normally, it is not in practice to consider each and every individual piece of evidence available; however an exception has been made in this case since it involved certain alleged odious deeds of few individuals. In order to impart full and substantial justice, this exception has been made. Criminal jurisprudence entails that a thorough appreciation of records needs to be done in order to do complete justice. Criminal Procedure Code, 1973 Ss. 91 and 233 Accuseds applications to secure certain materials, documents and witnesses to establish their defence Rejected by trial court Held, trial court can refuse securing of defence evidence if it feels it is being done to further delay the trial Criminal Trial Defence. Held: In this particular matter there has been an inordinate delay, despite the High Court granting six months for the completion of the trial and thereafter another three months extension was sought by the trial court. As per Section 233 CrPC, the trial court can refuse securing of defence evidence if it so feels that the same is being done to further delay the trial. Thus, the trial court has committed no error in rejecting the above applications. Even otherwise there seems to be no prejudice caused to the accused by mere rejection of these applications. Criminal Procedure Code, 1973 S. 378 Reversal of acq2uittal Principles to be followed Labour dispute turning hostile leading to death of two women and injury to several others Out of 49 accused seven convicted by trial court High Court in cryptic manner reversing acquittal of four accused and confirming conviction of the seven accused found guilty by trial court Sustainability Manner of disposal deprecated High Court without properly discussing legal and factual aspects held four accused guilty Held, there was no occasion to have passed order of conviction without removing doubts with regard to correctness, legality and propriety of the two dying declarations Four accused convicted by High Court, acquitted Out of remaining seven accused appellants, conviction and sentence awarded by trial court and confirmed by High Court for A-1, A-2, A-32, A-33, confirmed A -25 and A- 46 acquitted Penal Code, 1860 Ss. 302, 307,435,427,143 and 148 r/w S. 149 IPC. Criminal Procedure Code, 1973 S.154 FIR Object and value of Denial of, by person by whom lodged Effect Reiterated, FIR not a substantive piece of evidence However, cannot be given a complete go-by Can be used to corroborate evidence of

person lodging it In present case, due to discrepancies in evidence and no secondary evidence led to ascertain veracity of FIR, the same cannot be wholly relied on Evidence Act, Ss. 145 and 157. Evidence Act, 1872 S. 32(1) Recording of dying declaration Mode of 10 recording statements in hospital of two injured persons sustaining burn injuries Answers not in question-answer form, doctors certifying they were in a fit state of health to have their statements recorded only at the end of recording the statements Also statement not recorded in presence of Magistrate Effect Held, treating the said statements as dying declarations, questionable Criminal Procedure Code, 1973, Ss. 161, 162 and 164. Constitution of India Art. 136 - Interference in criminal matters Concurrent findings of fact General rule of no interference Conviction of five accused by trial court, confirmed by High Court Held, great consistency in evidence with regard to different roles attributed to said five accused Concurrent findings of fact recorded against them, cannot be interfered with in appeal Conviction and sentence upheld. 2010 2 MLJ(Crl) 1104(SC) Sidhartha Vashisht @ Manu Sharma Vs State (NCT of Delhi) Indian Penal Code (45 of 1860), Sections 302, 201 read with 120-B- Murder case Presence of accused at scene of crime proved Prosecution established its case beyond reasonable doubt Order of High Court reversing order of acquittal and convicting accused held to be proper. FACTS IN BRIEF: Aggrieved by the order of the High Court by which the High Court reversed the order of acquittal passed by the trial Court and convicted the accused under Section 302, 201 / 120-B IPC and Section 27 of the Arms Act, present appeal is filed by the accused. QUERIES: 1. Whether the prosecution has established its case beyond reasonable doubt against all the three accused? 2. Whether the trial Court is justified in acquitting all the accused in respect of charges leveled against them? 3. Whether the order of the High Court imposing punishment when the trial Court acquitted all the accused in respect of the charges leveled against them is sustainable? Held: From the evidence adduced, it is clear that the accused Nos. 1-3 were present at the scene of occurrence. Admittedly without setting up a plea of alibi to show their presence elsewhere, they have flatly denied their presence. It has been proved by the prosecution that the deceased was murdered for a row over the drink. The evidence regarding the actual incident, the testimonies of witnesses, the evidence connecting the vehicles and cartridges to the accused

Manu Sharma, as well as his conduct after the incident prove his guilt beyond reasonable doubt. The High Court has analyzed all the evidence and arrived at the correct conclusion. Code of Criminal Procedure, 1973 (2 of 1974), Section 154 First Information Report- Cryptic telephonic messages not giving particulars of offence or accused could not be treated as FIR. Held: It is evident from the facts established on record in the present case that none of the three telephonic messages received by police furnished any detail about the offence or the accused. Cryptic telephonic messages could not be treated as FIR as their object is only to get the police to the scene of offence and not to register the FIR. The said intention can also be clearly culled out from a bare reading of Section 154 of the Code of Criminal Procedure. In view of the same, the three telephonic messages received by the police around 2.25 a.m. on 30.4.1999 did not constitute the FIR under Section 154 of the Code and the statement of Shyan Munshi P.W.2 was rightly registered as the FIR. Code of Criminal Procedure, 1973 (2 of 1974), Section 162 Statements of witnesses Delay in recording evidence of witnesses Identity of accused as suspect in present case not consequence of any delay Delay not fatal to prosecution case. Held: In the present case, there were about 100 or more persons present at the party. Thee identity of all such persons took substantial amount of time to determine. Consequent to the large number of witnesses, their interrogation also consequently took a substantial amount of time. Unlike the said decision, in the present case, there are no concomitant circumstances to suggest that the investigator was deliberately making time with a view to give a particular shape to the case. The details of investigation conducted on each day are very clearly brought out in the evidence of the various witnesses. Furthermore, the identity of the appellant as a suspect in the present case was not the consequence of any delay. Thus, the delay, if any, in recording the evidence of witnesses in the present case cannot be considered as an infirmity in the prosecution case. Code of Criminal Procedure, 1973 (2 of 1974), Sections 207 and 208 Bar Council of India Rules, Rule 16 - Constitution of India (1950), Article 21- Role of Public Prosecutor Duty of disclosure to disclose certain evidence to defence Right of accused to free and fair trial Trial would only be vitiated if non-disclosure amounts to material irregularity and causes irreversible prejudice to accused. Held: It is clear that the Code & the Bar Council of India Rules provide a wide duty of disclosure. But this duty is limited to evidence on which the prosecutor proposes to place reliance during the trial. The right of the accused with regard to disclosure of documents is a limited right but is codified and is the very foundation of a fair investigation and trial. A document which has been obtained bonafidely and has bearing on the case of the prosecution and in the opinion of the public prosecutor, the same should be disclosed to the accused in the interest of justice and fair investigation and trial should be furnished to the accused. Then that document should be disclosed to the accused giving him chance of fair defence, particularly when nonproduction or disclosure of such a document would affect administration of criminal justice and the defence of the accused prejudicially. The concept of disclosure and duties of the prosecutor under the English System cannot be made applicable to Indian Criminal Jurisprudence Stricto Senso at this stage. However, the doctrine of disclosure would have to be given somewhat expanded application. As far as the present case is concerned, it has been noticed that no prejudice had been caused to the right of the accused to fair trial and non-furnishing of the copy of one of the ballistic reports had not hampered the ends of justice.

Test Identification Parade-No previous TIP-Court identification as being above-board and more than conclusive.

may

appreciate

dock

Held: Learned Solicitor General submitted that, even otherwise, an adverse inference ought to be drawn against the appellants for their refusal to join the TIP. This view has found favor time and again by this Court. It is pertinent to note that it is dock identification which is a substantive piece of evidence. Therefore even where no TIP is conducted no prejudice can be caused to the case of the Prosecution. Observations or disparaging remarks by higher Courts Language which may imply an allegation of suspicion in performance of function of Court should be carefully examined Unless absolutely established on record, comments should be avoided. Held: In line with the consistent view of this Court, the Division Bench could have avoided making such observations which directly or impliedly indicates towards impropriety in the functioning of the Court, appreciation of evidence by the learned Judge and /or any other ancillary matter. The content and merit of the judgment would have remained unaffected even if such language or comments were not made against the learned trial judge. The respect of judiciary and for the judiciary, is of paramount consideration. Every possible effort should be made and precaution taken which will help in preservation of public faith and individual dignity. A judicial consensus would require that the judgment should be set aside or affirmed as the case may be but preferably without offering any undesirable comments, disparaging remarks or indications which would impinge upon the dignity and respect of judicial system, actus curiae neminem gravabit. Despite exercise of such restraint, if, in a given case, the Court finds compelling reasons for making any comments in that even it will be in consonance with the basic rule of law and adherence to the principles of natural justice that view point of the concerned learned judges should also be invited. Constitution of India (1950), Article 19(1)(a) Freedom of speech and expression Distinction between trial by media and informative media Trial by media should be avoided particularly in view of constitutional protections given to suspect Invasion of his rights bound to be held as impermissible. Held: Despite the significance of the print and electronic media in the present day, it is not only desirable but least that is expected of the persons at the helm of affairs in the field, to ensure that trial by media does not hamper fair investigation by the investigating agency and more importantly does not prejudice the right of defence of the accused in any manner what-soever. It will amount to travesty of justice if either of this causes impediments in the accepted judicious an dfair investigation and trial. Presumption of innocence of an accused is a legal presumption and should not be destroyed at the very threshould through the process of media trial and that too when the investigation is pending. In that event, it will be opposed to the very basic rule of law and would impinge upon the protection granted to an accused under Article 21 of the Constitution (Anukul Chandra Pradhan v. Union of India and Others (1996) 6 SCC 354) 2010 -1- L.W.(Crl) 654 Babubhai Jamnadas Patel Vs State of Gujarat & Ors.

Criminal P.C., Section 156/Investigation by the Police Powers of the Court to give directions, Scope, I.P.C., Section 420, 465, 120-B, Appeal to Supreme Court against interim order passed by Gujarat High Court in Criminal Appeals. Question is as to whether the Courts can monitor investigations in respect of offences alleged to have been committed when the investigation had already been commenced by the investigation agency. Held: There is little doubt that normally investigation of offences is the function of the investigating agencies and the Courts do not ordinarily interfere with the same But, at the same time the High Court is vested with such powers, though the same are invoked only in cases when extraordinary facts are involved, necessitating such monitoring by the Courts. Courts, and in particular the High Courts and the Supreme Court, are the sentinels of justice and have been vested with extraordinary powers of Judicial Review and supervision to ensure that the rights of the citizens are duly protected Courts have to maintain a constant vigil against the inaction of the authorities in discharging their duties and obligations in the interest of the citizens for whom hey exist. In the instant case, the High Court had to repeatedly intervene and pass orders to ensure that the investigation was being conducted diligently - Periodical status reports were required in that regard Because of the tardy progress of the investigation the High Court had to step in at the instance of the respondents herein. There can be no doubt that in appropriate cases, the Courts may monitor an investigation into an offence when it is satisfied that either the investigation is not being proceeded with or is being influenced by interested persons. I.P.C., Section 420, 465, 120 - B, Appeal to Supreme Court against interim order passed by Gujarat High Court in Criminal Appeals See Criminal P.C., Section 156/Investigation by the Police Powers of the Court to give directions, Scope. 2010 -1- L.W.(Crl) 680 Gangula Mohan Reddy Vs State of Andhra Pradesh I.P.C., Section 106/Abetment of suicide, Ingredient, Definition of abetment, Section 109/Instigation, meaning of. Appellant, employer of the deceased victim agricultural labourer was stated to have harassed the deceased by levelling accusations of theft of jewels and for return of advance money paid Conviction of appellant, held, cannot be sustained. Without a positive act on the part of the accused to instigate or aid in committing suicide, conviction cannot be sustained In order to convict a person under section 306 IPC there has to be a clear means rea to commit the offence It also requires an active act or direct act which led the deceased to commit suicide seeing no option and this act must have been intended to push the deceased into such a position that he committed suicide. I.P.C., Section 109/Instigation, meaning of-See Section 106/Instigation, meaning of See Section 106/Abetment of suicide, Ingredient, Definition of abetment.

The word suicide in itself is nowhere defined in the Indian Penal Code, however its meaning and import is well known and requires no explanation. Sus means self and cide means killing, thus implying an act of self-killing. In short a person committing suicide must commit it by himself, irrespective of the means employed by him in achieving his object of killing himself. Para 7 Suicide by itself is not an offence under either English or Indian criminal law, though at one time it was a felony in England. Para 8 In our country, while suicide in itself is not an offence, considering that the successful offender is beyond the reach of law, attempt to suicide is an offence under section 309 of IPC. Para 10 Abetment involves a mental process of instigating a person or intentionally aiding a person in doing of a thing. Without a positive act on the part of the accused to instigate or aid in committing suicide, conviction cannot be sustained. The intention of the Legislature and the ratio of the cases decided by this court is clear that in order to convict a person under section 306 IPC there has to be a clear mean rea to commit the offence. It also requires an active act or direct act which led the deceased to commit suicide seeing no option and this act must have been intended to push the deceased into such a position that he committed suicide. In the light of the provisions of law and the settled legal positions crystallized by a series of judgments of this Court, the conviction of the appellant cannot be sustained. Consequently, the appeal filed by the appellant is allowed and disposed of. 2010 -1- L.W.(Crl) 693 K.M. Ibrahim Vs K.P. Mohammed & anr. Negotiable Instruments Act (1881), Sections 138, 147, Criminal P.C., Section 320/ Compounding of offence, After the proceedings had been concluded before the Appellate Forum, Acquittal, Scope, Constitution of India, Article 142 / Powers of the Supreme Court. Appeal to Supreme Court was preferred against the dismissal of Revision Petition by the High Court confirming the conviction by the appellate court and trial court It was contended for appellant that since specific power had been given to the parties to a proceeding under the Negotiable Instruments Act under Section 147 to compound the offence, there could be no reason as to why the same cannot be permitted even after conviction, which had been affirmed upto the High Court Held: It is true that the application under Section 147 of the Negotiable Instruments Act was made by the parties after the proceedings had been concluded before the Appellate Forum-However, Section 147 of the aforesaid Act does not bar the parties from compounding an offence under Section 138 even at the appellate stage of the proceedings. There is no reason to reject the application under Section 147 of the aforesaid Act even in a proceeding under Article 136 of the Constitution Since the parties have settled their disputes, in keeping with the spirit of Section 147 of the Act, we allow the parties to compound the offence, set aside the judgment of the courts below and acquit the appellant of the charges against him. 2010 -3- L.W. 577

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L.I.C. of India & another Vs Ram Pal Singh Bisen C.P.C., Order XII, Rules 1,2,2-A,3-A (as amended by Act 104 of 1976, w.e.f. 1.2.1977) / Admissions, Notice of Admissions, Notice to admit, Practice and Procedure/Evidence, Proof of document, Service / Wrongful dismissal, Suit filed by Development Officer of the L.I.C. challenging his dismissal. Question is as to the effect of documents filed by appellants nad marked as exhibits, in absence of any oral evidence having been tendered by the appellants (L.I.C) and especially in absence of putting their own defence to the respondent during his cross examination in the Court Appellants have not been able to show compliance of Order 12 Rule 1 and 2 of the CPC, meaning thereby that there has not been any compliance thereof Records do not reveal that any such procedure was adopted either by the appellants or by the Trial Court to prove the documents filed by the appellants and mark them as Exhibits Thus no advantage thereof could be accrued to the appellants, even if it is assumed that said documents have been admitted by respondent and were then exhibited and marked. It is true that failure to prove the defence does not amount to an admission, nor does it reverse or discharge the burden of proof of the plaintiff but still the duty cast on the defendants has to be discharged by adducing oral evidence, which the appellants have miserably failed to do Thus looking to the matter from any angle, it is fully established that appellants had miserably failed to prove and establish their defence in the case. Under the Law of Evidence also, it is necessary that contents of documents are required to be proved either by primary or by secondary evidence Contents of the document cannot be proved by merely filing in a court. Practice and Procedure/Evidence, Proof of documents See C.P.C., Order XII, Rules 1,2,2-A, 3-A (as amended by Act 104 of 1976, w.e.f 1.2.1977)/Admissions, Notice of Admissions, Notice to admit. Evidence, Proof of document See C.P.C., Order XII, Rules 1,2,2-A, 3-A (as amended by Act 104 of 1976, w.e.f. 1.2.1977) / Admissions, Notice of Admissions, Notice to admit, Practice and Procedure.

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Service / Wrongful dismissal, Suit filed by Development Officer of the L.I.C. challenging his dismissal See C.P.C., Order XII, Rules 1,2,2-A (as amended by Act 104 of 1976, w.e.f. 1.2.1977) / Admissions, Notice of Admissions, Notice to admit, Practice and Procedure/Evidence, Proof of document. Suit was filed challenging order of dismissal of the plaintiff Development Officer, passed by appellant L.I.C., and confirmed on appeal, etc. therefrom. Suit was decreed by trial court and it was upheld by High Court. Appeal to Supreme Court was preferred by the L.I.C. Held: Records reveal a sorry state of affairs as to the manner in which suit had been contested in the trial court by the appellants herein, abutting gross negligence and callous manner, not even adhering to the provisions of the Code of Civil Procedure and the Indian Evidence Act, yet challenging the same before this Court, even after having lost from all courts. 2010 -3- L.W. 602 H.P. Vedavyasachar Vs Shivashankara & Anr. C.P.C., Order 41, Rule 27 / Additional Evidence, application for, before the appellate court, Duty and Powers of Appellate Court, Practice and Procedure. While allowing an application for adducing additional evidence, the appellate court has two options open to it; it may record the evidence itself, or it may direct the trial court to do so In this case, the High Court could not have directed the trial court to dispose of the suit after taking evidence Such an order of remand could be only in terms of Order 41, Rule 23 or Rule 23A or Rule 25 Order of High Court set aside Directions passed. The application for additional evidence, in the appeal before the High Court, was allowed stating that the appellants are permitted to lead additional evidence before the trial court. The respondent also be provided opportunity to cross-examine the appellants in regard to the additional evidence that is sought to be produced and the trial court shall thereafter dispose of the case on merits insofar as B Schedule property is concerned. It was contended before the Supreme Court that in any event for the said purpose, the entire case could not have been remanded to the trial court for fresh disposal after recording fresh evidence as it was not a removal as envisaged under Order XLI Rule 23 of CPC. Held: When an application for adducing additional evidence is allowed the appellate court has two options open to it. It may record the evidence itself or it may direct the trial court to do so. For the aforementioned purpose, in our considered opinion, the High Court could not have directed the trial court to dispose of the suit after taking evidence. Such an order of remand could be only in terms of Order XLI Rule 25 of the Code. None of the said provisions have any application in the instant case.

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Order of the High Court modified, directing as under: (i) The learned trial court upon recording the evidence as directed by the High Court shall transmit the records to the First Appellate Court with a copy of its report annexed thereto. (ii) Such an exercise by the learned trial court must be completed within a period of four weeks from the date of communication of this order. (iii) The first appellate court must dispose of the first appeal on receipt of the said order as also the evidence as adduced as expeditiously as possible.

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HIGH COURT CITATIONS

(2010) 4 MLJ 11 56 K. Ramachandran represented by his Power Agent M.P. Murugesan Vs Bagawathi Code of Civil Procedure (5 of 1908), Order 9 Rule 9, Order 3 Rule 2 Limitation Act (36 of 1963), Section 5- Dismissal of set aside ex parte application and delay condonation application filed by Power of Attorney/Subsequent purchaser No leave obtained from Court to be represented as POA-Purchase hit by lis pendens and no sufficient reasons assigned for delay-Revision dismissed. FACTS IN BRIEF: The restoration and delay condonation applications were filed by the Power of Attorney who is the subsequent purchaser of the property in dispute was dismissed. A revision was preferred there from. QUERY: Whether an application filed by the Power agent of the defendant for setting aside the exparte decree and to condone the delay in filing the application is maintainable, when no leave of the Court was obtained to be represented as Power of Attorney? Held: On a conspectus of the facts and circumstances of the case which float on the surface, this Court is of the considered view that the petitioner after dismissal of impleading application I.A. No. 100 of 2007 endeavours to step into the shoes of his vendor/defendant by subsequent purchaser who purchased the suit property on 6.7.2005 after the passing of an exparte decree on 29.9.2003 but before the restoration, is clearly hit by principle of lis pendens as per Section 52 of the Transfer of Property Act and moreover, the reasons assigned by the power agent of the revision petitioner in I.A. No. 2628 to 2631 of 2008 that he was suffering from henenteric fever and took treatment and therefore, he could not contact his previous counsel due to his ill-health were not a sufficient/good cause and this Court is not inclined to adopt a liberal, elastic and a justice oriented approach overriding technicalities in the present case based on the facts and circumstances and viewed in that perspective, these Civil Revision Petitions fail. Code of Civil Procedure (5 of 1908), Order 3 Rule 2 Permission to be represented by Power of Attorney Vests with discretion of Court. Held: It is left open to the Court to grant or withhold the permission in its discretion. As a matter of fact, the Court may even after grant of permission, withdraw it half way through if the representative proves himself reprehensible. The antecedents, the relationship, the reasons for requisitioning the services of the private person and a variety of other circumstances must be gathered before grant or refusal of permission.

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Limitation Act 36 ofm1963), Section 5 Sufficient cause What is - When to adopt liberal, elastic and justice oriented approach. Held: The reasons assigned by the power agent of the revision petitioner in I.A. No. 2628 to 2631 of 2008 that he was suffering from henenteric fever and took treatment and therefore, he could not contact his previous counsel due to his ill-health were not a sufficient/good cause and this Court is not inclined to adopt a liberal, elastic and a justice oriented approach overriding technicalities in the present case (based on the facts and circumstances and viewed in that perspective, these Civil Revision Petitions fail.

(2010) 4 MLJ 981 Kuppan Vs Muniammal and Another Hindu Marriage Act (25 of 1955), Sections 11,16 Indian Evidence Act (1 of 1872), Section 114 Partition Presumption of marriage Legitimacy of children born out of void marriage. FACTS IN BRIEF: Suit filed for partition which was dismissed by the trial Court, but reversed by the first appellate Court. Aggrieved over the same, defendant preferred the present second appeal disputing the legitimacy of plaintiff for getting the share. QUERY: Whether the first appellate Court was right in holding that the factum of marriage was proved and therefore plaintiff was the legitimate son entitled for share in the properties? Held: Even though, 1st Plaintiff was third wife of Sadasiva Gounder and notwithstanding such marriage is void, children who are born who would have otherwise been legitimate if the marriage had been valid, shall be deemed to be their legitimate children. Invoking Section 16 of Hindu Marriage Act, lower Appellate Court rightly held that 2nd plaintiff being born out of such marriage shall be deemed to be the legitimate son of Sadasiva Gounder. Properties being ancestral properties, Sadasiva Gounder was entitled to half share and defendant is entitled to the remaining half share. Being third wife, 1st Plaintiff is not entitled to any share in the properties of Sadasiva Gounder. From out of half share of Sadasiva Gounder, 2 nd plaintiff is entitled to half share i.e. 1/4th share. Lower Appellate Court rightly held that 2nd plaintiff would be entitled to 1/4th share in the suit properties.

2010 3- L.W. 502

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M/s. Transchem Limited, rep. By its Managing Director Vs M/s. Chouraria Wire Netting Industries, By its Managing Partner Prayer: Appeal filed under Section 96 of the Code of Civil Procedure against the judgment and decree passed in O.S.No. 1350 of 2000, dated 16.04.2003 on the file of the Additional District Judge, Fast Track Court V, Chennai. Limitation Act (1963), Sections 19,18, acknowledgment, what is, mere payment, sans acknowledgment of such payment will not save limitation, Limitation Act (1908), Section 20. Held: Plaintiff was maintaining a running account By means of Ex.A-5 the defendant sent a fax message on 5.9.1996 admitting the debt and stated that they are in a position to clear all the debts and requested the plaintiff to wait - It can be treated as an acknowledgment under Section 18 of the present Act. The legal requirement is, payment within the period of limitation shall be acknowledged in writing by borrower and from the date of such acknowledgment time would begin to run In the absence of such acknowledgment, mere payment alone would not serve limitation To put it differently in clear terms, mere payment made on 24.12.1996, within 3 years from 24.12.1996 it will not save limitation. Held: Section 20 of the earlier Limitation Act (9/1908) is analogous to Section 19 of the new Act in verbatim. What section 20 of the old Act says, has been reiterated in Section 19 of the new Act. There is no difference at all. Hence, the principles laid down under Section 20 of the old Act would be applicable to the debts which are governed by the present Section 19 of the new Act. In the present case on hand, concededly the plaintiff was maintaining a running account. By means of Ex.A-5 the defendant sent a fax message of 5.9.1996 admitting the debt and stated that they are in a position to clear all the debts and requested the plaintiff to wait for one more week or two. It can be treated as an acknowledgment under Section 18 of the present Act. Worthwhile it is to say that contents in Section 19 of the old Act No 9/1908 are being produced in Section 18 of the present Act. So Section 18 of the new act is Section 19 of the old Act. 2010 3- L.W. 522 A. Ramadas Rao and Others Vs M/s. J.P. Builders, rep. by its Proprietor and Others C.P.C., Section 114/Review, Order 47, R.1, Recovery of Debts due to Banks and Financial Institutions Act (RDB Act) (1993), Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act (SARFAESI Act), (2002), Specific Relief Act (1963), Section 16/Ready and Willing, Contract Act, Section 31/Contingent contract, Scope of, Section 128/Suretys liability. Review of judgment reported in 2010-2-L.W. 368 dismissed - It was contended that the apparent error in referring to the decree for specific performance without referring to the decree for specific performance being subject to mortgage has misled that Court to believe that the decree is a simple decree for specific performance and the Court had not

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noticed that the decree for specific performance is the decree for specific performance is subject to mortgage in favour of the 3rd Defendant Bank. Contention urged on behalf of review petitioners that the Court has exceeded its jurisdiction under Section 96 of CPC by going into the questions, which were not pleaded and which were not the subject matter of any issue by formulating questions of law, which did not arise in the first appeal and by interfering with the order of trial Court and without even an appeal against the conditional decree-Grievance of the review petitioners/Defendants 1 and 2 is that directions have been issued by the Court based on facts, which were not pleaded and by ignoring the statutory provisions of SARFAESI Act. Held: Mere reference to the decree as decree for specific performance does not mean we have diluted that part of the decree-Decree for specific performance, being subject to mortgage. An error apparent on the face of the record must be such a patent error, which in one glance, can be detected without advancing long drawn argument on either side Where there are two possible views regarding interpretation or application of law vis-avis the particular facts of a case, taking one view, even if it is erroneous, cannot be said to be an error apparent on the face of the record - In a review application, this Court cannot sit as an appeal late Court and re-appreciate the entire evidence Various points raised for the review petitioners are upon the merits of the matter and the Review Court, sitting as Appellate Court and exercising Appellate jurisdiction, cannot go into the merits of our own findings. 2010 (3) CTC 692 F.J. Irani Others Vs Hajee Sir Ismail Wakf Estate, rep. by its Trustees Others Law of Pre-emption Ingredients of Pre-emption Rights of Parties Right of preemption is embedded on principle that strangers to one property should not acquire ownership of adjacent property which may render enjoyment of property already owned difficult Right of pre-emption is right of substitution Such right can be enforced only after thing in respect of which right of pre-emption is sought is sold and not before Such right exists only between free holders -Pre-emptor should have vested ownership of one property to enforce right in respect of another property Tenants of property could also obtain right of pre-emption by virtue of statues or contracts Pre-emption is weak pre-emption by virtue of statutes or contracts - Pre-emption is weak right and can be defeated by owner of property by any legitimate means Pre-emptor would loose his rights by acquiescence in sale of such property by any positive act There are no equities in favour of pre-emptor. Facts: JHI took on lease certain properties belonging to estate of one IS in 1940 with the object of putting up cinema theatre. The lease was for 21 years and was to be renewed for a further period of 10 years. A theatre was built on portion of leased land. JHI died in 1949 and his heirs succeeded his estate. Lease was to expire in 1971 after renewal and Lessor demanded possession at the time of expiry of renewed lease. In 1972 the Lessor filed a Suit against the lessee and the said Suit was settled and by virtue of that a Lease Deed was executed in 1974. The said Lease Deed recognized the Lessor as the owner of the land as well as the building and the lease executed for a period of 15 years commencing from 01.01.1972 ending on 31.12.1986. Entire land and building was leased out by such document. The lease contained a clause for renewal for a further period of 10 years. In 1992 lessees legal heirs filed a Suit for declaration that the build-

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ing constructed in the land belonged to them and sought declaration that certain clauses in the Lease Deed were illegal in view of the Section 12 of Tamil Nadu City Tenants Protection Act. In 1984 the owner of the property offered to sell the property to the lessee and invited a quotation. The lessee failed to make an offer despite repeated reminders. In 1995 the Lessor invited for tenders and the lessee also participated and submitted a tender. The tenders were opened and the 2nd Defendant had quoted much higher than the lessee and the property was sold to him but even before the sale deed the lessee filed a Suit seeking enforcement of pre-emption right for the purchase of the said property. Held: A survey of the law as propounded by the Supreme Court, over the past 60 years, from Shri Audh Singh upto Kumar Gonsusab, shows that the claim for enforcement of the right of preemption has to be tested keeping in mind, the following principles: (i) It is a right of substitution and hence it arises only after the sale; (ii) The right exists only as between freeholders. The pre-emptor should have yested ownership of the pre-emptive tenement, to be able to exercise the right of pre-emption in respect of another property. However, the right of pre-emption may also be available to tenants, by virtue of statutes or contract; (iii) It is a very weak right, which can be defeated by all legitimate means, by the owner; (iv) Acquiescence in the sale by any positive act, amounting to relinquishment, would result in the forfeiture of the right; and (v) There are no equities in favour of the pre-emptor. 2010 (3) CTC 742 Secretary to Government, Home, Prohibition and Excise Department & Others Vs S. Suresh Babu. & Others Right to Information Act, 2005 (22 of 2005), Section 6 (2) - Information cannot be denied by authorities on ground that informant has motive in getting information, to settle private score Bona fides of information seeker need not be looked into in view of Section 6(2) of RTI Act Authorities bound to provide information. Facts: According to the first respondent about 400 people were in killed in Collachal Village during the Tsunami period due to the indiscriminate mining operation carried out by Indian Rare Earth Ltd., a Central Government undertaking violating environmental and CRZ notifications. It is the case of the First respondent that the workmen belonging to V.V. Minerals were assaulted by the employees of the IREL and consequently a Criminal Complaint was lodged with the Karungal Police Station. It is the case of the Respondent that steps were being taken to withdraw the Criminal Complaint made against the employees of IREL without notice to the defacto complainant/respondent. Hence, the Respondent sought for certain information regarding, which was denied by the Information Officer. On Appeal the 4th Respondent passed an order directing then petitioner to disclose the information sought for by the Respondents. Challenging the same the present Writ petition has been preferred by the Government.

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Held: In the Writ petition it is this order which is under challenge. Though it was stated that the second respondent was motivated in seeking information and he was set up by M/s. V.V. Minerals to settle local scores, this Court is not inclined to go into the bona fide of the information seeker in the light of Section 6(2). 2010 (3) CTC 769 Pradeep Kumar and another Vs Balasundaram Code of Civil Procedure, 1908 (5 of 1908), Order 9, Rule 13 Suit for Recovery of money Ex parte decree passed and later set aside Ex parte decree passed for second time Application to set aside ex parte decree dismissed Order challenged in Appeal Appeal also dismissed Revision against that order Earlier when Suit was posted for trial, an ex parte decree was passed and same was set aside and after affording several opportunities to defendants, Suit was again decreed ex parte No evidence to show that 1st defendant was decree ex parte No, evidence to show that 1st defendant was suffering from any illness When Second Application is filed under Order 9, Rule 13, conduct of party has to be taken not of - In view of judgment of Supreme Court reported in Ramesh v. Ratnakar Bank Ltd., AIR 2001 SCW 4759, defendants directed to deposit a sum of Rs. 2,00,000/- along with costs of Suit within eight weeks Plaintiff permitted to withdraw costs of Suit Non-compliance of condition would restore ex parte decree and plaintiff can proceed with execution Civil Revision Petition disposed of. Facts: In a money Suit, ex parte decree was passed in the second time. The Application filed by the defendants to set aside the ex parte decree was dismissed and the defendants challenged the said order by way of Civil Revision that the defendants deposited a sum of Rs. 2,00,000/- along with costs of the Suit and the plaintiff was permitted to withdraw the costs. Held: While considering the Petition under Order 9, Rule 13, C.P.C. to set aside the ex parte decree, the Court has to consider the conduct of the party who filed the Petition. In the instant case, admittedly there was an earlier ex parte decree, on Petition, that was set aside by the Court below, subsequently, the case was posted for trial, P.W.1 was examined in chief, continuously there was nko representation for the petitioners/defendants to cross-examine P.W.1, that was recorded by the Court below. Before passing the ex parte decree, sufficient opportunity was given to the petitioners. It is not in dispute that there ware two petitioners/defendants. According to the petitioners, the second petitioner was ill and admitted in the hospital, however, in order to prove the alleged illness of second petitioner, no supporting document was produced by the petitioners before the Court below. Even if the second petitioner was bed-ridden or taking treatments as inpatient, nothing prevented the first petitioner in appearing and giving instructions to his counsel, so as to cross-examine the witness. When the second petition was filed under Order 9, Rule 13, C.P.C., the conduct of the party has also to be taken into consideration. On the aforesaid facts and circumstances, I am of the view that the defence raised by the learned counsel appearing for the petitioners that the act of the petitioners is neither willful nor wanton cannot be accepted. In the light of the decisions rendered by the Honble Apex Court and other Courts, to meet the ends of justice, I find it just and reasonable to pass a conditional order, accordingly, as a condition precedent, the petitioners are directed to deposit a sum of Rs. 2,00,000/- (Rupees Two lakhs only) to the credit of the Suit in O.S. No. 64 of 2004 before the Court below within eight weeks from the date of receipt of a copy of this order, apart from paying the costs of the Suit and the respondent will be entitled to withdraw the costs of the Suit to be de-

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posited. If the conditional order is complied with, this Civil Revision Petition will be allowed and in case if the conditional order is not complied with, this Civil Revision Petition shall stands dismissed without any further reference to this Court and the respondent will be at liberty to proceed with the E.P. 2010 (3) CTC 785 Jayakumari Vs Balachander Hindu Marriage Act, 1955 (25 of 1955), Section 13(1)(i-a) cruelty what is Not defined in Act- No strait jacket formula or hard and fast rule to constitute act of cruelty Has to be judged on facts of each case taking into account surrounding circumstances Relevant factors are status of life, standard of living, family back ground and society in which parties are accustomed Particular behavior may amount to cruelty in one set of circumstances and may not so in other set of circumstances. Facts: The wife, who suffered a divorce decree in a Petition filed by the husband one the ground of cruelty, filed the Appeal attacking the various findings of the Trial Court. It was mainly contended by the wife that she was in fact the one who was subject to cruelty at the hands of her husbands relatives. The husband defended the order of divorce on he ground that the Criminal case filed by the wife ended in his favour on Appeal and the allegations of the wife cannot be believed as she did not choose to give timely Complaints. On Appeal, held: Then term cruelty consists of unwarranted and unjustifiable conduct on the part of defendant causing other spouse to endure suffering and distress thereby destroying peace of mind and making living with such spouse unbearable, completely destroying real purpose and object of matrimony. It would of course be difficult to define the expression cruelty. There cannot be any hard and fast rule in interpreting the same. As pointed out, the word cruelty cannot be put in a strait-jacket of judicial definition. It must be judged on the facts of each case having regard to the surrounding circumstances. Whether one spouse is guilty of cruelty is essentially a question of fact and previously decided cases have little, if any, value. The term cruelty is not defined in the Act. It is to be judged by taking into consideration the status of life, the standard of living, the family background and the society in which the parties are accustomed to move because particular behaviour may amount to cruelty in one set of circumstances and may not be so in other set of circumstances. Practice and Procedure Binding nature of decision in Criminal Case in Civil in Civil action Imposition of liability Standard of proof required in Civil and Criminal Cases is widely different Judgment of acquittal in a Criminal Case is irrelevant in a Civil Case based on cause of action Findings of Criminal Court not binding in Civil action Only in exceptional cases circumstances resulting in acquittal would assume relevance In a Civil Suit, Defendant can be held liable even on preponderance of probabilities or action decided on mere consideration of burden of proof in the absence of other evidence In Criminal Cases proof required is beyond reasonable doubt and accused also entitled to benefit of doubt Case law discussed. 2010 (3) CTC 819 Oriental Insurance Company Limited, Salem Vs

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Minor Jayapriya, rep. Others Motor Vehicles Act, 1988 (59 of 1988), Section 166 Constitution of India Appeal by Insurer against compensation awarded in a case of fatal accident Question regarding validity of adoption Contention that there cannot be a valid adoption among Christians is not in consonance with Constitution Cannon Law provides for adoption - There is no embargo for adoption amongst Christians In any event, validity of adoption cannot be challenged in Motor Accident proceedings, which is a summary in nature Compensation reduced C.M.A. partly allowed. Facts: In a Civil Miscellaneous Appeal arising from a Motor Accident case, Question arose whether there can be a valid adoption amongst Christians. High Court held that the Canon law is applicable and that there is no embargo for adoption amongst Christians and also held that in a motor accident proceeding, which is a summary in nature, the validity of adoption cannot be investigated in detail. Held: In our considered view, the stand taken by the learned counsel for 6th Respondent that there cannot be valid adoption among the Christians is not in consonance with the Constitution and the various judicial pronouncements. As pointed out by the learned Single Judge, the Canon Law, which is applicable to Jagadambal and 6th Respondent provides for adoption if the Civil Law of the Country permit the same. In the light of Sections 40 and 41 of Juvenile Justice Act, we do not find any embargo for adoption. In any event, the proceeding, being summary in nature, the validity or otherwise of the adoption needs no further elaboration. 2010 (3) CTC 890 Vijay Kumar Sharma @Manju Vs Raghunandan Sharma @ Baburam and others Arbitration and Conciliation Act, 1996 (26 of 1996), Section 7 Valid Arbitration Agreement What constitutes There must be a written agreement by parties submitting to Arbitration, all or certain disputes which have arisen or may arise in respect of a defined legal relationship, whether contractual or not When there is no document signed by parties nor exchange of letters, telex, telegrams referring to or recording an Arbitration Agreement there is no Arbitration Agreement as defined under Section 7 Provision in a Will of a Testator merely constitutes his wish that disputes should be settled by Arbitration It cannot be construed as an Arbitration Agreement within the meaning of Section 7 of Act. Facts: Pending dispute between brothers, one alleging that their father had left behind a Will and the other contending that the Will was fabricated and that he was entitled to partition, an Application under Section 8 of the Arbitration and conciliation Act, 1996 was filed by the executors of the Will alleging that the deceased had made a declaration that the disputes should be referred to Arbitration. The same was allowed by the Trial Court and an Appeal was filed to the High Court. Pending the Appeal, the named Arbitrator under the Will withdrew himself and an Application was filed under Section 11(6) of the Act for appointment of an independent Arbitrator. The same is under challenge before the Apex Court. Held: In this case, admittedly, there is no document signed by the parties to the dispute, nor any exchange of letters, telex, telegrams (or other means of telecommunication) referring to or record-

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ing an Arbitration Agreement between the parties. It is also not in dispute that there is no exchange of statement of claims or defence where the allegation of existence of an Arbitration Agreement by one party is not denied by the other. In other words, there is no Arbitration Agreement as defined in Section 7 between the parties. In Jadgish Chander v. Ramesh Chander, 2007 (5) SCC 519, this Court held: The existence of an Arbitration Agreement as defined under Section 7 of the Act is a condition precedent for exercise of power to appoint an Arbitrator / Arbitral Tribunal, under Section 11 of the Act by the Chief Justice or his designate, It is not permissible to appoint an Arbitrator to adjudicate the disputes between the parties, in absence of an Arbitration Agreement of mutual consent. 2010 2 MLJ (Crl) 1211 V.D. Grahalakshmi Vs Narayanan Venuprasad Menon Code of Criminal Procedure, 1973 (2 of 1974) Section 203-Dismissal of private complaint -Matrimonial dispute between petitioner and her husband Application before Family court for dissolution of marriage Allegation of previous marriage between petitioner and respondent-private complaint filed against respondent alleging offences of forgery and cheating by impersonation Dismissal of complaint by trial court Revision petition against order of trial Court dismissing complaint given by petitioner- Matrimonial dispute cannot be lightly viewed just like that of any other dispute when s serious offence of forgery is alleged which involves future and modesty at its very inception on the ground that some witnesses have been omitted procedure contemplated under Sections 200,201 203 and 204 are all only means to justice and they cannot be termed as substantive provisions Too technical approach cannot be adopted where serious offence is allegedpetition allowed. Held: A matrimonial dispute cannot be lightly viewed just like that of any other dispute. When a serious offence of forgery is alleged which involves the future and modesty of a woman, on such a technical ground that some witnesses have been omitted to be cited, statements under Section 201Cr.P.C. have not been recorded and documents have not been produced, the complaint cannot be foreclosed at its very inception. In my considered opinion, the procedure contemplated under Sections 200,201,203 and 204 Cr. P.C. are all only means to justice and they cannot be termed as substantive provisions. After all procedure is the handmaid of justice. Therefore, a too technical approach cannot be adopted in case of this nature where such serious offence is alleged. 2010 2 MLJ (Crl) 1231 Sundareswaran Vs Inspector of Police, Puzhal Code of Criminal Procedure, 1973 (2of 1974), Section 439- Indian penal code (45of 1860), Section 439 Indian penal Code (45 of 1860), Section 376 Tamilnadu prohibition of Harassment of Women Act (44 of 1998), Section 4 Juvenile Justice (Care and protection of

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Children) Act (56 of 2000), Section 23 - petition for bail Petitioner none else than father of victim girl, accused of shocking and heinous crime of raping his own daughter - Pervert and degrading act of petitioner resulted in unbearable mental torture and agony not only to victim but also to victims mother and other close relatives Heinous crime alleged to have been committed by petitioner to be dealt with iron hand Considering seriousness and gravity of offence alleged, it is not desirable to release petitioner on bail-Petition dismissed. Held: The petitioner, who is none else than the father of the of the victim girl, has been accused of shocking and heinous crime of raping his own daughter. The sanctity of father and daughter relationship got stained due to the lustful acts of the petitioner causing indelible scar, not only physically but also emotionally, on the victim. The custodian of the trust has betrayed the trust reposed on him. The heinous crime alleged to have been committed by the petitioner is to be dealt with an iron hand. This Court is also of the considered view that the victim as well as her mother, who has given the complaint, need protection by the police. The release of the petitioner would definitely hamper the investigation and the petitioner may likely to cause serious threat and fear to the victim and her mother resulting in tampering he evidence. Considering the seriousness and gravity of the offence alleged against the petitioner, it is not desirable to release the petitioner on bail and accordingly, this petition is hereby dismissed. 2010 2 MLJ 1240 M. Mohan and Another Vs State of Tamil Nadu by Inspector of Police, Coimbatore Indian Penal Code (45 of 1860), Sections 498-A, 306, 304-B-Dowry Prohibition Act (28 of 1961), Section 4-Dowry death Cruelty-Proximate and live link between effect of cruelty based on dowry demand and consequential death should be proved by prosecution In present case, no evidence to shows ill-treatment of deceased for demand of dowry soon before her death Evidence only show some misunderstanding between accused and deceased Same does not lead to inference that accused had committed offences under Section 304-B, 306 and 498-A IPC and Section 4 of Dowry Prohibition Act Conviction and sentence imposed on accused set aside. Held: The Trial Court had proceeded on the basis that even at the time of her marriage, there was problem regarding demand of dowry, although there was no evidence in this behalf. In relation to dowry death, the circumstances showing the existence of cruelty or harassment to the deceased, though cannot be restricted to a particular instance or period of time, but at the same time, it shall not be stretched to any period. In the present case, even if it is assumed that there was a demand of motor cycle and a house property, the evidence clearly showed that the said demand had been made long before the death and there is no evidence to show that she was treated with cruelty or harassment with such demand during the period between the birth of the child and till her tragic end. In such circumstances, no presumption could be raised so as to base conviction under Section 304-B of IPC. In the resent case, nothing is brought out from the evidence of PW.2 to PW.4 to bring home the charge under Section 498-A and 306 of IPC on record and even regarding the last incident, there were two inconstant versions of PW.4, the uncle of the deceased and PW.2 and PW.3 and as such, no credence can be attributed to their evidence. The necessary ingredients for

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holding the Appellants guilty of commission of the offence under Section 306 and 498-A of IPC are totally absent in this case and therefore, conviction even under Section 306 and 498-A of IPC is not warranted. 2010 -1- L.W.(Crl) 697 P.S. Sethuraman Vs P. Elavazhagan Criminal revision filed under Section 397 and 401 Cr.P.C., against the order passed by the learned Judicial Magistrate, Ariyalur, in Crl.M.P.No, 4782 of 2009 in C.C.No.259 of 2007 dated 09.02.2010. Negotiable Instruments Act, Section 147 (Amendments introduced with effect from 6.2.2003 making he offence as compoundable offence), Probation of Offenders Act, Section 3, Criminal P.C., Section 361/Compounding of offence. Revision was preferred against dismissal of petition filed before Magistrate by the Accused under Section 258 r/w 320 Cr.P.C with a prayer to treat the compromise memo filed by parties dated 07.10.2008 as compounding petition and to stop all the proceedings of the case and to discharge the accused. Question which arises for consideration is Whether the court can terminate the proceedings acting upon the payment made in full due under the cheque during the pendency of the criminal proceeding, in the absence of any request for withdrawal or for compounding of the offence by the complainant?. Held: Receipt of the cheque amount has not been denied by the respondent herein But still, the respondent has not come forward for settlement with the accused If the trial Court comes to the conclusion that the accused is guilty, then it is open to the learned Judicial Magistrate to take into consideration about the payment made by the accused and also take into consideration the other factors and to show leniency while sentencing the accused Even the learned Judicial Magistrate may apply the relevant provision under Section 3 of the Probation of Offenders Act and admonish him, subject to Section 361 of Cr.P.C. Probation of Offenders Act, Secton 3-See Negotiable Instruments Act, Section 147 (Amendments introduced with effect from 6.2.2003 making the offence as compoundable offence). Criminal P.C., Section 361/Compunding of offence See Negotiable Instruments Act, Section 147 (Amendments introduced with effect from 6.2.2003 making the offence as compoundable offence), Probation of Offenders Act, Section 3. Held: As per the petition filed by the accused, the learned counsel for the respondent received demand draft and acknowledged it on the advise of the learned Magistrate. Therefore, it is made clear, though the complainant had been willing to compromise the matter, at a later stage had changed his mind after receiving a sum of Rs. 4.5 lakhs out of the cheque amount of Rs. 50 lakhs. The remaining amount of Rs. 50,000/- also was received as demand draft. The complainant is not denying the receipt of the amount of Rs. 5 lakhs which is the total cheque amount. But, the complainant is not coming forward either to withdraw the complainant or to compound the offence against he accused.

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2010 -1- L.W.(Crl) 703 Dhivan Vs State rep. by The Inspector of Police, Vadalur Criminal P.C., Section 439/Petition (Crl.O.P.) praying for Anticipatory Bail Rearrest of accused who is on Bail granted by Magistrate whether permissible on the ground of Section 302, I.P.C., being added in the Final Report- Prayer for grant of Anticipatory Bail, Scope, I.P.C., Section 323, 506(ii), 201, (302). Case registered under Ss.323, 506(ii) and Bail was granted by Magistrate When final report was submitted, Section 302 of IPC was also added and according to the petitioner, he is again sought to be arrested by the respondent police not withstanding the fact that he has already been granted bail by the learned Magistrate and filed the Crl.O.P. Question considered, whether the respondent police has got power to re-arrest the petitioner at this stage though he is enjoying he benefit of order of bail granted by the learned Magistrate?- Held: simply because a penal provision is added in the case in respect of a serious non-bailable offence, the bail granted earlier shall not automatically stand cancelled and therefore, the police shall not have the power to re-arrest the accused until the bail granted earlier is cancelled by way of a positive order by the appropriate court. Since the bail granted to the petitioner earlier by the learned Magistrate has not so far been cancelled, the apprehension of arrest at this stage when the petitioner is very much on bail is baseless and so, the question of granting anticipatory bail does not arise Criminal Original Petition dismissed with observations. I.P.C., Sections 323, 506 (ii), 201, (302), - See Criminal P.C., Section 439/Petition (Crl.O.P.) Re-arrest of accused who is on Bail, granted by Magistrate whether permissible on the ground of Section 302, I.P.C. being added in the Final Report Prayer for grant of Anticipatory Bail , Scope. 2010 -1- L.W.(Crl) 707 P. Thangaraju Vs State Represented by its Deputy Superintendent of Police, Dharmapuri I.P.C., Section 409, 420, 468, 120-B. Prevention of Corruption Act (1988), Sections 13(1) (c) , 13(2), 19(3), Guidelines issued by the Director of Rehabilitation by his proceedings in D.O.Rc.No. H/7728/94 dated 04.10.1995, In respect of the procedures to be followed for the verification of the identity of the beneficiary, Scope, Criminal P.C., Section 397(1)(2)/Revision against order of Special Judge declining to discharge Revision Petitioner (6th Accused), Objection for maintainability of revision

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considered, Interlocutory order in Section 397, Crl.P.C., what is Held: settled rule of interpretation is that when there is a conflict between two enactments, the non-obstante clause to the extent of such conflict may make one Act to have over-riding effect on the other. In the PCA, there is no such total exclusion of the provisions of the Code of Criminal Procedure in respect of revision There is no conflict between Section 19(3)(c) of the PCA and Section 397(2) of the Code Simply because non-obstante clause is found both in S.11(2) of the PCA and in S. 19(3)(c) of the PCA should have the same extended meaning as interpreted in Madhu Limayes case by the Honble Supreme Court, and followed by this Court in V.R. Nedunchezhians case. To conclude, an order declining to discharge an accused under the PCA is an intermediate order against which revision lies. Prior to 04.10.1995, there were no Guidelines issued by the Director of Rehabilitation in respect of the procedures to be followed for the verification of the identity of the beneficiary Such Guidelines were issued by the Director of Rehabilitation by his proceedings in D.O.Rc.No. H/7728/94 dated 04.10.1995 Procedure contemplated in the guidelines dated 04.10.1995 cannot be made applicable to the facts of the present case since the 3rd instalment was sanctioned by the Revenue Divisional Officer as early as on 05.03.1994 itself Thus, the Guidelines dated 04.10.1995 cannot be in any manner made applicable to the facts of the present case. In this case, assuming that the petitioner was also a party to the breach of the procedures contemplated in the matter of sanction of the loan under the Scheme, that will not amount to any of the offences as stated in the final report There is no material on record to frame charges against the petitioner - Petitioner is entitled for discharge from the case Revision allowed. Prevention of Corruption Act (1988), Sections 13(1)(c) , 13(2), 19(3), Guidelines issued by the Director of Rehabilitation by his proceedings in D.O.Rc.No H/7728/94 dated 04.10.1995, In respect of the procedures to be followed for the verification of the identity of the beneficiary, Scope- See I.P.C., Sections 409, 420, 468, 120-B Criminal P.C., Section 397(1)(2) /Revision aganint order of Special Judge declining to discharge Revision Petitioner (6th Accused), Objection raised for maintainability considered, Interlocutory order in Section 397, Crl.P.C., what is See I.P.C., Section 409, 420, 468, 120-B, Prevention of Corruption Act (1988), Sections 13(1)(c), 13(2), 19(3), Guidelines issued by the Director of Rehabilitation by his proceedings in D.O.Rc.No. H/7728/94 dated 04.10.1995, In respect of the procedures to be followed for the verification of the identity of the beneficiary, Scope. 2010 -1- L.W.(Crl) 748 Srinivasan Vs The State of Tamil Nadu, rep. By Sub Inspector of Police, Dindivanam I.P.C. Section 326, 452/Fracture, nature of, Sentence, Considerations In this case, P.W.6, Dr. Sahu who was examined on the prosecution side would depose before the Court that he was conversant with the handwriting and signature of the Doctor who gave

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treatment and through him Ex. P3, the wound certificate was marked The core question arises as to what was the actual nature of the grievous injury. It is one thing to say that there was fracture and yet it is another, to point out clearly what was the gravity of the fracture There are various types of fractures, like simple fracture, compound fracture, etc. Unless in detail the nature of the fracture is found established, this Court cannot have a clear view of it in its minds eye about the nature of the fracture. Fact is that for the offence under Section 326 IPC, even life imprisonment is contemplated, and it all depends upon the gravity of the grievous inflicted on a person with dangerous weapon Here, technically alone, it is found proved that the injured sustained fracture - Hence I would like to agree with the submission made by the learned counsel for the petitioner that the sentence of one month imprisonment, if imposed, that would meet the ends of justice. Accordingly, this revision is partly allowed by reducing the two sentences of six months rigorous imprisonment imposed under Section 452 IPC as well as under Section 326 IPC, to one month simple imprisonment Revision partly allowed.

2010 -1- L.W.(Crl) 751 Periyasamy Vs Lakshmi Criminal P.C., (1973), Section 125,128 Revision against order of Magistrate Imposing sentence of Rigorous Imprisonment for 12 months on the petitioner (husband), in the Crl.M.P filed under Section 128 for execution, pursuant to an order passed in the MC filed under Section 125, seeking maintenance Held: the petition which culminated in the impugned order was filed only to enforce the order of maintenance as provided in Section 128 of the Code and it was not filed under Section 125(3) of the Code. It is well settled that under Section 128 of the Code while enforcing an order of maintenance, the learned Magistrate is not empowered to impose any sentence on the defaulter The learned Magistrate is empowered only to enforce the same as provided for recovery of fine in the Code Order impugned in this revision is set aside; and Crl.M.P. is remitted to the learned Judicial Magistrate, Bhavani, Erode District to enforce the order as provided in Section 128. In the petition filed under Section 125, Magistrate passed an order directing the petitioner (husband) herein to pay a sum of Rs. 1,000/- per month to the respondent (wife) herein as maintenance. On the ground that the petitioner failed to pay the maintenance amount for 37 months, the respondent filed Crl.M.P.No.2971 of 2008 before the learned Magistrate under Section 128 of the Code for execution. On appearance, the respondent requested the learned Magistrate to grant time to pay the amount. Though time was granted, the petitioner did not pay the amount. Finally, the learned Magistrate by order dated 25.03.2009 imposed a sentence of 12 months of Rigorous Imprisonment. Challenging the same, the petitioner is now before this Court with this revision. Held: Admittedly, the petition which culminated in the impugned order was filed only to enforce the order of maintenance as provided in Section 128 of the Code and it was not filed

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under Section 125(3) of the Code. It is well settled that under Section 128 of the Code while enforcing an order of maintenance, the learned Magistrate is not empowered to impose any sentence on he defaulter. The learned Magistrate is empowered only to enforce the same as provided for recovery of fine in the Code. But, the learned Magistrate has passed an order of sentence as though she was dealing with a petition under Section 125(3) of the code. It is needless to say that under Section 1259(3) of the Code, there ware various constraints like, the limitation, etc., to entertain a petition; whereas under Section 128 of the Code, obviously, there is no such limitation provided for enforcing the order. It is not as though a wrong provision has been quoted by the respondent. Even during the argument, it was understood by the parties that the petition was filed only under Section 128 of the Code, which is evidence from the impugned order itself. The powers of the Magistrate under Section 125 and 128 of the Code are distinguishable. Therefore, a petition filed under Section128 of the Code cannot be treated as a petition filed under Section 125 of the Code. Now, the learned Magistrate has allowed the petition therebyput an end to the further proceedings. The order impugned in this revision petition not only has caused prejudice to the petitioner, but also deprives the respondent inasmuch as she has claimed arrears of maintenance for 37 months, whereas the order relates only to 12 months. Thus, the respondent also stands to lose the arrears of maintenance for 25 months. Thus, the impugned order is not at all sustainable. Revision petition is allowed; the order impugned in this revision is set aside; and Crl.M.P.No. 2971 of 2008 is remitted to the learned Judicial Magistrate, Bhavani, Erode District to enforce the order a provided in Section 128 of the Code of Criminal Procedure. 2010 -1- L.W.(Crl) 753 Pooluthevar & 4 others Vs The State rep. by the Inspector of Police, Tbhoothukudi I.P.C., Section 307, 149, 148, 99, 103, 105/Private Defence, Plea as to, Scope-Right of private defence is not available unless a particular act would cause reasonable apprehension of death or grievous hurt. Basic principle of doctrine of the right of private defence is that when an individual or his property is faced with danger and immediate aid from the State machinery is not readily available, then the concerned individual is entitled to protect himself and his property. Considering the nature of the injuries sustained by PW1, lenient view can be taken in awarding sentence against the accused and under the said circumstances, the accused 1 & 2 can be sentenced to undergo six months rigorous imprisonment under Section 307 red with 149 of the Indian Penal Code and the accused 3 to 5 can be sentenced to undergo one year rigorous imprisonment under Section 307 With the above modification, the present criminal appeal can be allowed in part.

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