Case filed against Lalu
http://timesofindia.indiatimes.com/Patna/Case-filed-against-Lalu/articleshow/4386856.cms
11 Apr 2009, 0401 hrs IST, TNN
PATNA: A Patna High Court lawyer, S N Pathak, on Friday filed a writ petition against Union railway minister Lalu Prasad seeking his removal from the post of minister for making provocative and unconstitutional statements that if he had been the home minister of the country he would have let a roadroller over Varun Gandhi for his remarks against Muslims. The petitioner submitted that Lalu had made this statement on April 7 at a public meeting in Kishanganj and the district magistrate of Kishanganj has also lodged an FIR against him. By making such statements, Lalu has violated the constitutional provisions under which he took oath of the office of the railway minister, the petitioner said.
HC wants report in strays eating infant case
http://timesofindia.indiatimes.com/Cities/HC-wants-report-in-strays-eating-infant-case/articleshow/4387662.cms
11 Apr 2009, 0515 hrs IST, TNN
NAGPUR: The Nagpur Bench of Bombay High Court has expressed concern over the shoddy state of affairs regarding infrastructure and services at the Government Medical College (GMC). A division bench has directed the state government to furnish a copy of the report submitted by Ajni police after probing the case of stray dogs mauling and eating a new-born baby inside GMC. The division bench comprising justices J N Patel and Filomeno Reis was hearing a bunch of petitions on GMC, including a suo motu action into the case of the new-born baby being mauled by stray dogs and Ajni police registering it as an accidental case. The baby-mauling incident in August 2006 had prompted NECO group chairman Basant Lal Shaw to write a letter to the high court which treated it as a public interest litigation. The State Department of Public Health, Department of Medical Education and Drugs, GMC and Ajni Police station officer were made respondents in the case. The bench also asked the government to file a reply on reviewing the old staffing pattern, unchanged since 1950, resulting in shortfall of officials.
HC judges reserve verdict in B Manjunath case
http://timesofindia.indiatimes.com/Lucknow/HC-judges-reserve-verdict-in-B-Manjunath-case/articleshow/4386953.cms
11 Apr 2009, 0422 hrs IST, TNN
LUCKNOW: The high court on Friday reserved its verdict in the sensational murder case of B Manjunath case. The trial court had awarded death penalty to an accused while life imprisonment to seven associates in the crime. These convicted persons challenged the judgment and sentence of the trial court in an appeal before the high court. On Friday, the division bench comprising Justice K K Mishra and Justice D V Sharma heard final arguments on the appeal and reserved its judgment. A sales officer of Indian Oil Corporation and IIM Lucknow alumni, B Manjunath was murdered in Lakhimpur Kheri on the intervening night of November 19 and November 20, 2005 by oil mafia as he was campaigning against adulteration in petroleum products.
The incident came to light on November 20, 2005 in the morning in district Sitapur, when a police head constable, Ram Bhawan Singh, on suspicion during checking, chased and intercepted a Maruti car in which the dead body of Manjunath was found. The police arrested Vivek Sharma and Rakesh Anand from the car and registered an FIR.
The accused confessed to their crime and divulged names of other accused persons. They told that Manjunath was murdered in Lakhimpur at the petrol pump of Pawan Mittal alias Monu. The matter was transferred to police station Gola, Kheri. During investigation, the police found evidence against Mittal, Vivek Sharma, Rakesh Anand, Sanjay Awasthi, Devesh Agnihotri, Rajesh Verma and Shivkesh Giri alias Lalla and filed charge sheet against them.
The trial of the accused was conducted before sessions Judge, Kheri, S M Abdi, who sentenced Mittal to death penalty and other co-accused with lifer. The convicted persons challenged the judgment of the sessions Judge before the high court, pleading that they were innocent and there was no evidence against them to convict them for murder of Manjunath. After prolonged hearing, in the high court, the lawyers of appellants and the prosecution concluded their arguments on Friday.
18 judges appointed at HC
http://timesofindia.indiatimes.com/Cities/18-judges-appointed-at-HC/articleshow/4387262.cms
11 Apr 2009, 0413 hrs IST, TNN
LUCKNOW: The president of India has appointed 18 new judges
in the Allahabad high court. The judges are expected to take oath of office on April 13. The judges will be additional judges for a period of two years. After the said period, the judges will be confirmed as per their performance. The newly appointed judges, in order of seniority, include -- Ashwani Kumar Singh, Devendra Kumar Arora, Anil Kumar, Dasu Ram Azad, Naheed Ara Moonis, Rituraj Awasthi, Rajesh Chandra, Shyam Shankar Tiwari, Yogendra Kumar Sangal, Kashi Nath Pandey, Virendra Singh, Ram Autar Singh, Jayshree Tiwari, Subhash Chandra Agarwal, Yogesh Chandra Gupta, Shrikant Tripathi, Ashok Srivastava and Virendra Kumar Dixit
HC to hear contempt plea against Rabri on April 15
http://timesofindia.indiatimes.com/Cities/HC-to-hear-contempt-plea-against-Rabri-on-April-15/articleshow/4387178.cms
11 Apr 2009, 0336 hrs IST, Ravi Dayal, TNN
PATNA: The Patna High Court will hear a criminal contempt petition filed against leader of the Opposition in Bihar assembly and former CM Rabri Devi in connection with her alleged derogatory remarks that the CM Nitish Kumar was "controlling judiciary and the media". A division bench comprising Chief Justice G M Koshy and Justice Ravi Ranjan on Thursday fixed April 15 to hear the petition filed by a lawyer Awadhesh Kumar Pandey, whose counsel Gyan Prakash Ojha submitted before the court the order of advocate general P K Shahi giving his consent to file the contempt petition. The advocate general had, under the provision of Section 15(1)(b) of Contempt of Court Act, given Ojha the consent to file the contempt petition on behalf of Awadhesh Kumar Pandey against Rabri Devi.
Woman moves HC to get back grandkids
http://timesofindia.indiatimes.com/Mumbai/Woman-moves-HC-to-get-back-grandkids/articleshow/4387088.cms
11 Apr 2009, 0154 hrs IST, Swati Deshpande, TNN
MUMBAI: Kisabai Lokhande, a 66-year-old illiterate woman from a Satara slum has filed a habeas corpus petition in the Bombay high court to get back her two granddaughters who were given in an inter-country adoption and sent to Spain. The issue which highlights the need for greater check in processing eligibility for adoptions, is that the agency had claimed that the two minor girls were abandoned and no consent was required from family members. Lokhande had initiated a search for her grandchildren last year although they had been adopted in 2005. She moved court as the last resort, wanting the HC to direct the DGP and the local cops to register complaints for various offences including kidnapping, cheating, using forged documents and illegally declaring a child under 12 as being abandoned-an offence attracting up to seven years in jail. She had complained to the police this January but to no avail, her lawyer Pradeep Havnur said. He added, "She is aggrieved at the police apathy in not registering an FIR against the accused, including Preet Mandir, an adoption agency in Pune. The agency allegedly colluded with the Satara Child Welfare Committee to declare the girls as destitute.'' The petition said inter-country adoption is a lucrative business and private adoption agencies working in collusion with government authorities are offered free foreign travel sponsored by international adoption agencies. Lokhande said with the help of a local NGO, she learnt that her granddaughters had been identified by a Spanish Adoption Agency Ninos-Sin-Fronteras (Children without Frontiers), who worked in tandem with agencies in Satara, Centre Adoption Resource Agency (CARA) and Preet Mandir. Baby-shopping means big business with transactions going up to Rs 5 lakh, the petition alleged, and reports are easily doctored for a price.
HC upholds confiscation of sandalwood
http://timesofindia.indiatimes.com/Cities/HC-upholds-confiscation-of-sandalwood/articleshow/4387057.cms
11 Apr 2009, 0240 hrs IST, TNN
CHENNAI: The Madras High Court has upheld the confiscation of more than 100 tons of sandalwood which was grown in a private estate in Yercaud, and cut by the estate-owner as wind-fallen and dead wood. As per Section 36-A of the Tamil Nadu Forest Act, it is a criminal offence to possess sandalwood exceeding five kilo without a licence from the district forest officer. As per Section 40-A, if a person who claims ownership, does not establish his right or title, then the timber would be deemed to be the property of the state. Section 40-G also prohibits trade in sandalwood and it also prohibits any person felling sandalwood tree without the written permission of the chief conservatory of forest. Pointing to all these requirements, the forest department confiscated the sandalwood in the custody of Vijayann Rajesh of Cauvery Peak Estate at Yercaud. Rajesh filed the petition stating that they were windfallen and dead sandalwood trees. He had also furnished documents such as chitta and adangal to establish ownership of the consignment. In 1993, the jurisdictional forest authorities seized the stock and also registered a first information report against him. His attempt to get the case quashed failed when the court dismissed his petition in March 1994. The present petition was filed questioning the confiscation powers of the authorities, and also demanding money equivalent of the seized sandalwood. Justice K Chandru, pointing out that the petitioner had not proved ownership over the wood, said, "no licence was obtained to retain such huge quantities of sandalwood in terms of the rules in force...In the absence of any legal and enforceable right of the petitioner being established before this court, this court is not inclined to interfere with the confiscation as ordered by the authorities."
HC flays corpn for splitting hairs on tax
http://timesofindia.indiatimes.com/Cities/HC-flays-corpn-for-splitting-hairs-on-tax/articleshow/4386938.cms
11 Apr 2009, 0225 hrs IST, TNN
CHENNAI: Administrative blocs of educational institutions are entitled to be exempted from property tax assessment, the Madras High Court has ruled. Justice K Chandru, passing orders on a writ petition filed by the Tamil Nadu Dr MGR Medical University, flayed the Chennai corporation for giving an "artificial meaning" to the exemption clause, and demanding property tax from the university administration. The university, which offers medical education and research programmes, was surprised to receive a property tax demand from the corporation in July 2006. Though it replied to the notice and explained that its Guindy campus was very much a part of the university's academic responsibilities, the corporation insisted that the premises were being used for "non-residential purpose." Section 101(c) of the Chennai City Municipal Corporation Act 1919 envisaged statutory exemption only to classrooms and laboratories, it argued. Only administrative works were going on in the Guindy campus and hence it was not eligible for exemption, the civic body said, and issued a final warrant also. Justice Chandru, dubbing the corporation's behaviour as "highly irresponsible," said it had failed to take note of the main object of the exemption clause devised by the state legislature. "The attempt of the corporation to indulge in interpretation of the section by giving artificial meaning, that only such of those buildings where instructions are given to students alone are exempted and that other administrative buildings are not exempted, clearly shows the sorry state of affairs in the office of the Chennai corporation, the judge said." Pointing out that the Guindy premises had the vice-chancellor's office, executive council hall and registrar office, justice Chandru said that without these facilities the educational purposes of the university could not be served. He then quashed the demand notice and the final warrant issued by the corporation.
HC upholds life sentence of 3
http://timesofindia.indiatimes.com/Delhi/HC-upholds-life-sentence-of-3/articleshow/4386636.cms
11 Apr 2009, 0609 hrs IST, TNN
NEW DELHI: The Delhi High Court has upheld the life sentence of three convicts in a 2001 murder and abduction case where the convicts killed the driver and kidnapped two kids of a businessman for ransom in September 2001. A division bench of justice Pradeep Nandrajog and justice Aruna Suresh upheld the conviction of Dharam Singh, Jaipal and Madan for killing a driver and kidnapping the two children of a garment exporter for ransom. According to the prosecution, the convicts had kidnapped four-and-half-year-old Rishabh and Subham, sons of Rajiv Aggarwal and nursery students of Bal Bharati School in Rohini, when they were returning from school in their Maruti Zen on September 17, 2001. After they waylaid the vehicle, the convicts later strangulated the car driver, Sunil, and then called up the father of the children, demanding Rs one crore to release the kids, the prosecution said, adding that police by tracing the phone calls and movements of Aggarwal apprehended the kidnappers at the time of his meeting with them. Observing that the statements of the convicts, the recovery of body of the driver at their instance and the rescue of the children from the possession of Dharam Singh are "incriminating evidence'', the Bench upheld the conviction of the trio and refused to show any leniency, as sought by the lawyers for the defence. The court, however, acquitted three other co-accused Ashok Kumar, Sunil Kumar and Jai Bhagwan for want of evidence as the prosecution was unable to establish a complete chain of evidence with respect to them.
Provide lawyers for poor: HC
http://timesofindia.indiatimes.com/Cities/Provide-lawyers-for-poor-HC/articleshow/4386961.cms
11 Apr 2009, 0620 hrs IST, TNN
NEW DELHI: The Delhi High Court has suggested the Delhi Legal Services Authority (DLSA) to set up a panel of lawyers having at least 10 years experience to defend accused who are poor and facing trial for committing grievous offences. "DLSA should prepare a separate panel of trial court lawyers comprising senior lawyers of not less than 10 years or more experience and associate lawyers of not less than five years to defend the indigent accused facing trial for commission of offences punishable with sentence of seven years and more,'' suggested Justice S Muralidhar in a judgement. "Care may be taken to ensure their competence in handling serious cases...A special set of fees may also be paid to such lawyers so that they can give their best,'' the court said. HC's suggestion came while dealing with a ten year-old drug trafficking case against a Nepali national under the Narcotic Drugs and Psychotropic Substances (NDPS) Act in which convict Bal Bahadur's lawyer said the accused being a poor man failed to engage a lawyer of his own. Later, the legal aid cell changed three lawyers assigned for him and as a result he was unable to instruct them properly, Bahadur's lawyer said. HC allowed the counsel's plea and reduced the sentence to a month from one year jail term awarded by the trial court to Bahadur in default of paying the fine. However, the court upheld the trial court's August 2008 order sentencing him to 10 years rigorous imprisonment for drug trafficking under the NDPS Act.
Lenders to have final say in NPA classification: HC
http://www.business-standard.com/india/storypage.php?autono=354720
Anindita Dey / Mumbai April 11, 2009, 0:26 IST
In what would provide a major relief to banks who are plagued with fears of rising defaults and bad debt, the Bombay High Court has ruled that the decision of a bank in assessing a debt as bad is the final word for writing it off and claiming deduction on income tax (I-T).
The high court delivered the judgement after hearing an appeal filed by the I-T department against deductions claimed by Oman International Bank. The court ruled in favour of the bank stating that the classification of bad debt is a commercial decision of the assessee (bank in this case) and once an entry is made in its accounts, it would be established as bad debt. The judgement was delivered in February this year.
There will be no further burden or obligation on the part of the assessee to prove a written-off debt as bad debt and hence the assessee can claim deduction against it for the year in which the amount of debt is written off, the court said. The onus is on the department to show that the debt is not bad if it is not satisfied with the reasoning of the assessee. In 2007, the I-T department lost the same case against the Oman International Bank, after the Appellate Authority in Mumbai ruled in the bank’s favour.
According to an amendment in Section 36, such deduction is now available under Section 36 (1) (vii). The court is of the view that the law is very clear on the classification of bad debt and it states that a mere provision for bad and doubtful debt cannot be written off for claiming deduction. In fact, the debt has to be irrecoverable for being written off to be eligible for deduction. In fact, the amendment was incorporated to avoid such litigations. Prior to the amendment, the assessing officer has to be convinced about the quality of debt to allow deductions.
The court order has defined a debt as bad if there are no reasonable expectations of recovery of dues from that account. Tax officials are of the view that the companies are using this to evade tax. Healthy business groups park their surplus funds with their financially weak companies as loans. Since these weak companies do not pay interest on these loans, the loan gets written off and the principal and interest are claimed as deduction.
Banks, on their part, will have to make full provisioning for bad debt (set aside funds equivalent of the full amount of the loan), according to an RBI guideline.
However, there are tax benefits for provisioning. Since write-offs are allowed for deduction from tax claims, most banks are writing off bad debt rather than making provisions. Banking sources say the recovery is hampered once the loan is written off and thus it is compensated at least with deduction claimed from the income tax.
HC takes bite out of Wagh...
http://www.mumbaimirror.com/index.aspx?page=article§id=15&contentid=2009041120090411025423833148f4819
Judge comes down heavily on Navi Mumbai Police Commissioner for illegal confinement of businessman; strips him of his detention powers
By Hetal Vyas
Posted On Saturday, April 11, 2009 at 02:54:23 AM
Illegal detention of a businessman from Belapur by the Navi Mumbai police has landed the latter in such a situation that it can’t exercise its special powers at the crucial time of elections. Taking cognisance of the high-handedness of the police, the Bombay High Court has suspended all detention powers of the Navi Mumbai Police Commissioner Ramrao Wagh.The order could have serious repercussions with the elections just days ahead. Usually, the police detains hundreds of anti-social elements during this time to ensure trouble-free voting.In the absence of this power, the police is practically incapacitated and cannot hold anyone in custody.The order came following a petition filed by Pawan Arora, 35, who had been detained by the APMC police station for eight months (from May 2008 to January 2009). The police had invoked the Maharashtra Prevention of Dangerous Activities of Slumlords, Bootlegger, Drug Offenders and Dangerous Persons Act (MPDA) against Arora, saying that he was an accused in 28 criminal cases.Arora, while in custody, moved the Bombay HC alleging that he had been illegally detained by the police. The court, on January 23, quashed Arora’s detention and he was released.Shocked to know that he had 28 offences registered against him, Arora filed an RTI seeking information on the grounds of his detention.“The RTI revealed that in the first 24 cases, Arora’s name had not even figured anywhere, let alone been mentioned as an accused. He was never arrested in any of these cases, yet he had to spend eight months behind bars,” said Arora’s lawyer UN Tripathi. “We then filed a petition seeking an inquiry against the commissioner, and also compensation.”The police case was so weak that during the hearing, the public prosecutor Aruna Pai-Kamat was forced to admit: “Factually, what has been stated by the petitioner is true. He was not involved in 24 out of the 28 cases.”The division bench of Justice Bilal Nazki and Justice F M Reis, while stripping Wagh of his detention powers, observed: “An order of detention cannot be passed mechanically and the person cannot be deprived of his cherished right of freedom and liberty at the whims of a police officer.”The court was especially harsh on the high-handed manner in which the police had exercised its special powers. It said: “A police officer who passed such an order... prima facie cannot be trusted with such an extraordinary power. We direct that the respondent No 1 (Wagh) shall not exercise any powers of detaining persons under MPDA until further orders of this court.”The case will come up for hearing on April 15.
WHAT IT MEANS FOR THE POLICE The police in Maharashtra is endowed with special powers – generally given to district magistrates elsewhere – to detain anti-social elements, extern them, or ask for bonds of good behaviour.These powers are exercised largely during elections, important political rallies, or public events to ensure law and order. With the HC stripping the CP of these powers, law and order during upcoming elections could be severely jeopardised.
Rise in criminal cases disturbing: CJI
http://www.tribuneindia.com/2009/20090411/main7.htm
New Delhi, April 10Chief Justice of India KG Balakrishnan said there is a new “disturbing” litigation trend in the country - a fall in civil disputes but a rise in criminal cases. “Criminal cases have witnessed a three per cent rise while there has been six per cent decrease in civil cases? This is a disturbing trend,” the Chief Justice said late Thursday evening, while inaugurating a function to mark the beginning of the golden jubilee celebrations of the Bar Association of India.
Elaborating upon the new trend, Chief Justice Balakrishnan said: “87 per cent of the total cases pending in India are in the subordinate courts, of which 71 per cent are criminal cases.” In states with higher literacy level, the number of civil cases was 29 per 1,000 people while in states with poor literacy it was as low as 4.6 per 1,000, he said. Describing the number of civil cases filed as “very low”, the CJI wondered why people were not coming forward to file civil suits. He appealed to the lawyers and legal community to ponder over this issue and help genuine and needy litigants in getting justice at an affordable cost.
The CJI also rued that in recent years there had been some instances of collusion between the defence and prosecution counsel in criminal cases.
The Chief Justice also disapproved of the astronomical fees being charged by the lawyers from clients and asked them to improve their ethical standards instead and help youngsters during their initial years in the legal profession.
Justice Balakrishnan said statutory bodies like the Bar Council of India and other state bar councils often take too much time in deciding complaints of professional misconduct against advocates. — IANS
’84 Anti-Sikh RiotsEyewitness wants to record statement http://www.tribuneindia.com/2009/20090411/punjab.htm#1
Kulwinder SandhuTribune News Service
Moga, April 10Resham Singh, another eyewitness of the anti-Sikh riots of 1984, at present settled in the US, has come forward to record his statement before the CBI against Congress leader Jagdish Tytler. He has alleged that Tytler instigated violence at Gurdwara Pulbangsh in Delhi on November 1, 1984, where three persons were killed.
In an affidavit sent to the CBI, the copy of which is available with The Tribune, he has stated that he was a taxi driver in Delhi at the time of the riots. When he was trying to reach home, passing Gurdwara Pulbangsh he saw smoke billowing out of the building and a mob, led by Tytler, was chanting slogans “khoon ka badla khoon”.
Resham said when he got closer to the building, he saw and heard Tytler instigating and screaming at the mob to take out the Sikhs hiding in the gurdwara. The witness stated that he also saw a few people putting a tyre around the neck of a Sikh who was burning while an agitated mob was watching and chanting slogans.
He said he met the two-member CBI team, along with attorney Gurpatwant Singh Pannun, who is pursuing the case of the riot victims at the international level, during its visit to the US in December, 2008, to record his statement, but officials refused. He even visited the Indian Consulates in New York and San Francisco and waited outside for hours to give his statement, but the officials did not call him inside, he alleged.
Meanwhile, Pannun had stated that this eyewitness was also willing to come to India to record his statement if the CBI or any court of law called him for this purpose.
Ragging CaseJudicial custody of accused extended till April 23 http://www.tribuneindia.com/2009/20090411/himachal.htm#13
Our Correspondent
Kangra, April 10Judicial Magistrate (First Class) Avinash Chander Sharma at Kangra today extended the judicial custody of four senior students of Dr RP Government Medical College, Tanda, who were involved in the ragging incident that allegedly led to the death of first year student Aman Sataya Kachroo, for 14 days and would have to be produced before the court on April 23.
The four students Dr Ajay Verma, Naveen Verma, Abhinav Verma and Mukul Sharma were facing murder charge under Section 302, IPC. Dr Ajay and Naveen were arrested by the Kangra police following a ragging complaint lodged by the principal of the college, Dr Suresh Sankhyan, on March 8, the day Aman died in the DRPGMC hospital. The other two accused Mukul and Abhinav surrendered before the District and Sessions Judge at Dharamshala, on March 10. On April 1, all accused medical students were remanded to Judicial custody for 10 days till April 10 and they were produced before the court today.
Pankaj Dhiman, public prosecutor said all accused would be produced before the court again on April 23.
Malda jail inmates protest against torture
http://www.thestatesman.net/page.news.php?clid=10&theme=&usrsess=1&id=250617
MALDA, April 10: The inmates in Malda Correctional Home started an agitation last night, refusing food in protest against the alleged torture of an inmate Pintu Sheikh who they claim caught a jail employee red-handed stealing mustard oil from a store room yesterday evening. Inmates alleged that Pintu Sheikh was severally beaten up within the jail by the wardens last night in their attempt to unearth the truth behind the alleged theft. The inmates were also protesting against the poor quality of food in the jail and the stealing of materials from the kitchen store rooms. The Malda district magistrate Mr Sridhar Ghosh visited the jail today and met the inmates, requesting them to relinquish their hunger strike. Mr Ghosh told reporters that he would draw the attention of the higher authorities of the correction home to the matter, and had sought written complaints from the inmates. The Malda DM backed up the claim that Pintu Sheikh was assaulted inside the jail, provoked by the protests lodged against the jail employee, and expressed unhappiness over his torture. The district authorities of Malda Correctional Home reported the matter to their higher authorities. Senior officer Mr K Pramanik from Kolkata arrived at the correctional home to investigate the matter this afternoon, and held separate meetings with the jail authorities and inmates in an attempt to resolve the crisis. n SNS
Substantial rise in crime rate Law and order
http://www.hindu.com/2009/04/11/stories/2009041159420300.htm
Educated youths taking to crime raises several difficult questions, writes
S. Vijay Kumar
It is a matter of concern that some students and office-goers are involved in chain-snatching incidents. When we were looking for habitual criminals, these fresh offenders turned out to be accused in a series of chain-snatching cases reported in recent weeks.” Commissioner of Police, K. Radhakrishnan, said this at a press conference early this month.
There have been dozens of chain-snatching incidents in Chennai and its suburbs since early this year. The modus operandi in almost all cases was that motorcycle-borne suspects, usually wearing helmets, would snatch gold chains from women walking alone on the road. While such incidents were earlier reported in remote residential areas, they have now started happening on main roads, sometimes in broad daylight and in full public view.
Has recession led the crime graph go up the scale? Are unemployed youths taking to crimes for a livelihood? Some students snatched gold chains from aged women to pay college fees or for a lavish living? These questions crop up in the backdrop of crime statistics and confessions made by suspects in different cases.
According to a senior police official, the overall crime scene (at the State level) showed a 14.59 per cent increase in murder and property crimes as compared to the previous year (up to February). While the number of robbery cases almost doubled, there was a substantial rise in theft and burglary cases.
“There has been an increase in crimes. But I am not sure whether it can be attributed to recession or any other factor consequent to it. However, there were cases involving educated youths, including students, indulging in thefts and robberies. While a Senior Auditor in the office of the Accountant-General was arrested for stealing a luxury car, an MBA graduate who tried to flee after snatching the chain of a girl was nabbed by locals in Chennai,” the official added.
In Anna Nagar, a gang of five youths was arrested this week for committing a series of burglaries. They were working in slaughter houses and took to crimes after work. “Since they could not afford going to movies, using mobile phones and purchasing good clothes, they conspired to commit burglaries,” an investigator said, adding that vehicle checks were intensified in vulnerable areas.
PIL petition challenges collection of toll
http://www.hindu.com/2009/04/11/stories/2009041154340400.htm
Special Correspondent
On NH-5 at Vijayanallur near Madhavaram
CHENNAI: A public interest litigation petition has challenged the collection of toll on NH-5 at Vijayanallur near Madhavaram here without completing the six laning of the highway, including the Karanodai bridge.
In the petition, ‘Traffic’ Ramaswamy of T. Nagar said the NH-5 was from Chennai to Kolkata. Though it started at Mint here, it took real shape at Madhavaram under the Golden Quadrilateral project. There was a proposal to six-lane the highway.
The petitioner said the six-lane work had not even started. The bridge across the Kortalaiyar had not been fully reconstructed. Because of the toll collection, the public suffered. As toll was being collected, facilities such as toilets, pedestrian underpass, bye-lanes and service roads ought to have been provided. But they were totally lacking at Vijayanallur toll plaza.
Mr. Ramaswamy prayed the Madras High Court to issue a writ calling for the records pertaining to the notification of the Ministry of Shipping and Road Transport and Highways of February 2009 awarding rights to L and T Chennai Tada Tollway Ltd to collect toll and quash the same as illegal. He also sought a direction to authorities not to put up toll plaza in the Chennai-Tada section without completing the six-lane road.
When the matter came up before the First Bench comprising Chief Justice H.L. Gokhale and Justice F.M. Ibrahim Kalifulla on Thursday, P.Wilson, appearing for the National Highways Authority of India, said the contractor was collecting the toll as per the official notification. There was no illegality in the collection.
The Bench posted the matter for April 16 to enable the NHAI counsel to file a counter.
Court directive to Slum Board
http://www.hindu.com/2009/04/11/stories/2009041160900400.htm
Special Correspondent
CHENNAI: The Madras High Court has restrained the Tamil Nadu Slum Clearance Board from plying tipper lorries on ‘Panchayat Road’ adjacent to Akshara Matriculation School at Kokilambal Nagar Extension, Okkiam Thoraipakkam, on the city’s outskirts.
Plying lorries
Justice K.Suguna passed the interim order of injunction on a petition filed by the Meenakshi Narayanan Memorial Educational Charity Trust, Thoraipakkam, represented by its managing trustee, Nalini Unni, seeking to issue a writ forbearing the board and its contractors from plying their lorries on the ‘Panchayat Road’ in a manner detrimental to the safety of the schoolchildren and directing them to use alternative routes for their vehicles.
An interim injunction was also prayed for.
In her order, Justice K.Suguna ordered notice of motion returnable in two weeks.
The Judge said that in the meanwhile, there would be an order of interim injunction restraining the board and its contractors from plying tipper lorries on the road adjacent to the institution for the purpose of the board’s ongoing project in Okkiam Thoraipakkam taluk.
The matter has been posted for April 15.
Letter to judge is treated as a petition
http://www.hindu.com/2009/04/11/stories/2009041160410300.htm
Mohamed Imranullah S.
MADURAI: N. Kalaiselvi of K. Meenatchipuram in Tiruchuli Taluk of Virudhunagar district was unaware of the whereabouts of her husband.
She was also not satisfied with the police action on her complaint. Immediately, the woman did not file a case but wrote a letter to one of the High Court Judges.
The letter received by Justice A.C. Arumuga Perumal Adityan in Chennai on April 2 read that the woman’s husband T. Nagarajan went missing since January 20.
Immediately, she lodged a complaint with the Tiruchuli police station. But the police did not take proper steps to trace her husband.
To add to it, the sub-inspector, writer and other policemen in the station obtained her signatures in many blank papers.
They also threatened her father and made him sign those papers as a witness.
Their ultimate object was to close the case because they were unable to answer their superiors, she alleged.
“I am very scared. My repeated pleas to you are to trace out my missing husband… You have been giving special attention to the plight of poor women like me. Hence, I earnestly request you to do the needful. I expect your affectionate help and immediate action,” the letter written in Tamil, hailing the judge as a great social reformer, read.
The Judge directed the Registrar General in the Principal Seat of the High Court in Chennai to forward the letter to the Registrar (Judicial) of the Madurai Bench. It was ordered to be taken up as a suo-motu habeas corpus petition after obtaining necessary orders from the administrative judge in the Bench.
Accordingly, it was placed before Justice M. Chockalingam who ordered to list the HCP before a Division Bench comprising Justice P. Murgesen and Justice T. Raja. The Registry itself drafted the petition and included the Tiruchuli police inspector as a respondent.
The matter would be taken up for hearing on Monday.
Judicial enquiry into custodial death sought
http://www.hindu.com/2009/04/11/stories/2009041161640700.htm
Staff Reporter
“Enquiries are conducted by RDOs only”
MADURAI: A public interest litigation petition has been filed in the Madras High Court Bench here seeking a direction to the Home Secretary to ensure that judicial enquiries were conducted in all cases of custodial death or rape.
People’s Watch, a human rights organisation based in Madurai, claimed that details obtained by it under the Right to Information Act from various district Collectors revealed that only executive magistrates probed such crimes in the State.
Originally, Section 176 of the Code of Criminal Procedure (Cr. P. C.) provided for inquests by executive magistrates (Revenue Divisional Officers) in addition to police investigations in cases of custodial death or rape.
However, a new sub section 176 (1) (A) was inserted in Cr. P. C. through an amendment in 2005. The amendment, providing for a mandatory inquiry by a judicial magistrate or metropolitan magistrate, came into effect from June 23, 2006.
The petitioner organisation on July 5, 2008 sought details from all the Collectors in the State seeking details of cases reported as death, disappearance or rape in police custody and whether a judicial inquiry was conducted in those cases.
“We received replies only from a few of the districts including Tuticorin, Thanjavur and Tirunelveli…It is found out that the enquiries were conducted invariably by the RDOs only and not by the judicial magistrates,” its affidavit read.
Blasts convict to be released on furlough
http://timesofindia.indiatimes.com/Mumbai/Blasts-convict-to-be-released-on-furlough/articleshow/4387097.cms
11 Apr 2009, 0105 hrs IST, Kartikeya, TNN
MUMBAI: Mohammed Moin Qureshi, the youngest convict in the 1993 serial blasts case, is going to walk out of jail for the first time since his arrest on April 20, 1993. However, Qureshi's freedom is going to be short-lived as the Bombay high court has allowed his release on furlough (special leave a jailed convict is entitled to), for a period of two weeks. Qureshi filed for furlough in September 2007, but his plea was turned down by jail authorities. He then moved the high court. Qureshi was found guilty by the Tada court of the attack on the fishermen's village in Mahim, that had left three dead. While his three accomplices in the attack were given the death penalty, Qureshi was spared the noose as he was only 17 years old at the time of the incident.
11 per cent candidates face criminal charges
http://www.hindu.com/2009/04/11/stories/2009041150700200.htm
Special Correspondent
GUNTUR: The National Election Watch has analysed the affidavits of the 315 candidates who are in the fray in the first phase of elections to Lok Sabha from 22 constituencies. According to the Election Watch Forum Convener P.C. Sai Babu here on Friday, a thorough scrutiny has brought out some interesting facts about these 315 candidates.
Out of these candidates 62 contestants who had filed affidavits along with their nomination papers did not reveal their educational qualifications. Other facts known from the affidavits are following:
Out of the 315 contestants 34 (11 per cent ) face criminal charges, while 64 (20 per cent) contestants have movable and immovable assets valued at more than Rs.1 crore. One of the refreshing aspect is 34 candidates are below 40 years making it a youthful elections in places.
While the common complaint with the political fraternity is that it does not like to set a minimum qualification for becoming a people’s representative, going by the affidavits, 4.5 per cent of the contestants are graduates or have acquired higher qualifications, which the Election Watch Forum said was a welcome trend.
Meanwhile, the Guntur West Praja Rajyam Party candidate Tulasi Ramachandra Prabhu has made a written complaint to the Superintendent of Police Mahesh Chandra Laddha alleging the police of being partial towards the ruling party and has urged him to ensure that was no vindictive attitude towards his supporters. Enclosing a list of all of its supporters who were bound over under sections 107 and 110, allegedly while they were following him during campaign, he has asked the SP to lift such a restriction on them.
Elephant deaths: State asked to file report
http://www.hindu.com/2009/04/11/stories/2009041154720500.htm
Staff Reporter
BANGALORE: The Karnataka High Court on Thursday took a dim view of the admission by officials of the Forest Department that they were not aware of orders by the Supreme Court relating to protection of elephants.
Observing that “ignorance of the law is no excuse”, a Division Bench comprising Chief Justice P.D. Dinakaran and Justice V.G. Sabhahit asked both the State and the Forest Department to file a comprehensive report. The Bench passed the order when it took up a suo motu public interest litigation (PIL) petition.
Senior counsel M. R. Naik said the report had not mentioned any Supreme Court direction.
The Bench adjourned hearing of the case to April 17.
Fearless lawyer upheld bar oath
http://timesofindia.indiatimes.com/Bangalore/Fearless-lawyer-upheld-bar-oath/articleshow/4386890.cms
10 Apr 2009, 2344 hrs IST, N Dinesh Nayak & Jaideep Shenoy, TNN
MANGALORE: Naushad Kasim, the Mangalore-based criminal lawyer who was shot dead on Thursday night off Falnir Road, was acclaimed for his professional skills. His hometown is Bhatkal. This Sri Dharmasthala Manjunateshwara Law College graduate had enrolled as a lawyer in 1999. He was working as a junior with criminal advocate Purushotham Poojary. He practised both in Mangalore and Udupi. Poojary told `The Times of India' that Naushad was an intelligent lawyer, who had handled all kinds of criminal cases. However, he was disliked by the police for the way he functioned. He had independently argued on behalf of Atul Rao, prime accused in the unnatural death case of Padmapriya, wife of Udupi MLA K Raghupathi Bhat. According to Poojary, they were unaware of D-company hitman Rashid Malbari's background when they agreed to argue his case. "I didn't know of any threat that Naushad may have received." The day Naushad was shot, he had argued in court against extension of police custody of his client. The court remanded Malbari to judicial custody till April 23. Advocate Kallige Tharanath Shetty said Naushad didn't hesitate to take on the establishment, and even filed private complaints against the police on behalf of his clients. He also gave legal help to `alleged' terrorists arrested by the district police in October 2008. Recently, he told his colleagues that he was receiving threatening calls, but he may not have taken them seriously. Another advocate, Ivan D' Souza, said one must respect Naushad's willingness to represent the accused, irrespective of who they were. "Lawyers take an oath to defend their clients in the best possible manner when they enrol at the bar, and Naushad did that precisely," he explained.
DSP Solanki gets respite from SC in drug case
http://timesofindia.indiatimes.com/Ahmedabad/DSP-Solanki-gets-respite-from-SC-in-drug-case/articleshow/4387028.cms
11 Apr 2009, 0548 hrs IST, TNN
AHMEDABAD : Supreme Court has rejected Gujarat government's plea for cancellation of bail granted to deputy superintendent of police R M Solanki in connection with a case, where he allegedly registered false drug peddling case against his business partner. When Solanki was in charge SP at ATS in 2005, he registered a complaint against one Vinu Parmar for being found in illegal possession of 900 gram charas in Junagadh. But Parmar moved Gujarat High Court claiming that he was a business partner with Solanki and after a land dispute between them, the cop had tried to falsely implicate him in a fabricated drug peddling case. The high court instituted a police inquiry by the then DCP Subhash Trivedi. After probing Parmar's allegations, Trivedi submitted a report stating that Solanki, with help eight officers like DSP Manoj Patel and police inspector Virendra Rawal, had lodged a wrong complaint in order to fix Parmar to settle the land dispute. Meanwhile, Solanki levelled atrocity charges against Trivedi, and this case is under investigation. However, following Trivedi's report, all police officers were arrested and sent to jail. Ultimately, they got bail from the high court in 2006. Against the high court's decision to free Solanki, the state government filed an application in SC to cancel his bail. Recently, the bail cancellation application came to be heard by a division Bench of Justices BN Agrawal and GS Singhvi, who questioned the Gujarat government as to why it is interested in cancelling bail of only one officer. The Apex court dismissed the state government's application observing that there was no valid ground to cancel Solanki's bail and directed the trial court in Ahmedabad to conclude the trial within one year.
Apex court notice to Ansal brothers
http://www.hindu.com/2009/04/11/stories/2009041160510300.htm
J. Venkatesan
NEW DELHI: The Supreme Court has issued notice to Sushil Ansal and Gopal Ansal to show cause why the sentence of one-year imprisonment awarded to them by the Delhi High Court for negligence in the 1997 Uphaar fire tragedy should not be enhanced.
The High Court while upholding the trial court order convicting them under Section 304-A (rash and negligent act) of the IPC reduced the sentence of imprisonment from two years to one year.
Acting on special leave petitions filed by the two brothers, the Supreme Court had already released them on bail.
Now a Bench of Justice S.B. Sinha and Justice Mukundakam Sharma has issued notice to the two brothers on an appeal filed by the Central Bureau of Investigation against the High court judgment seeking enhancement of the punishment.
Charitable organization gets relief in land case
http://timesofindia.indiatimes.com/Pune/Charitable-organization-gets-relief-in-land-case/articleshow/4387045.cms
11 Apr 2009, 0323 hrs IST, Asseem Shaikh, TNN
PUNE: The Indian Financial Association of the Seventh Day Adventist Mission, a well-known charitable trust in the country, got major relief from the appellate court in the revenue department, when an ex parte order passed against it was stayed on March 25. The appellate court presiding officer and additional collector R Gaikwad stayed an ex parte order passed by the now-transferred sub-divisional officer of Pune division, Shankar Jadhav, to delete the trust's name from the revenue records with respect to 50 acres of land in Gultekdi, till the appeal filed by the trust was decided in the appellate court. The trust runs charitable institutions like hospitals, schools, publishing houses, churches, media centres and other organisations across the nation to cater to the needs of the poor. To support these activities, the trust had purchased land in Gultekdi between 1922 and 1930. The land owned by the trust was never disputed even after the Town Planning Scheme was finalised. The 7/12 extract also stands in the trust's name till February 2009. However, one Suryakant Dhole, who was appointed as the power of attorney holder on behalf of Eknath Dhole, tried to make a case of ownership of the trust's property and moved the civil court to seek various reliefs in 2007. Suryakant claims that Eknath gave him the power of attorney to fight this case because Eknath's father, Kaluram, was one of the owners of the several pieces of land sold to the trust in 1922-1930. Suryakant has never produced the power of attorney in the earlier proceedings. Since Dhole did not get any relief from the Pune civil court, he later filed an application before the SDO to delete the trust's name from the revenue records and enter the name of his legal heirs. Speaking to TOI on Friday, lawyer Ranjeet Srinivasan who is representing the trust said, "The SDO, without giving us any notice, passed an ex parte order to delete the trust's name from the revenue record from several survey numbers admeasuring about 50 acres of land on February 27, which was his last working day." "Jadhav had further called the circle officer and talathi to his office and had directed them to insert the names of Dhole and others on the 7/12 extract, which was in gross violation of the circular issued by the divisional commissioner on October 5, 2008," Srinivasan stated. "The divisional commissioner's circular directs all revenue officers, tahsildhar, SDO's and circle officers not to execute any order passed by them till the appeal referred by either of the parties is decided by the appellate court," Srinivasan added. The case will now come up for hearing before the appellate court on April 30.
Bail rejected in Sanvordem assault case
http://timesofindia.indiatimes.com/Goa/Bail-rejected-in-Sanvordem-assault-case/articleshow/4387175.cms
11 Apr 2009, 0323 hrs IST, TNN
MARGAO: Additional sessions judge P V Savoikar rejected the bail application of one Alinson D'souza, resident of Digas-Panchawadi, accused in an assault case that took place at Sanvordem on March 26. Curchorem police had registered a case under section 143, 147, 148, 324 and 307 against the accused for assaulting one Barburao Naik, resident of Baghwado-Sanvordem.
lawyer cops loved to hate
http://timesofindia.indiatimes.com/Mangalore/A-lawyer-cops-loved-to-hate/articleshow/4386680.cms
10 Apr 2009, 2254 hrs IST, N Dinesh Nayak & Jaideep Shenoy, TNN
MANGALORE: Naushad Kasim, the city-based criminal lawyer, with around a decade's experience who was shot dead on Thursday night off Falnir Road was a young budding lawyer acclaimed by colleagues and friends for his professional skills. A law graduate from Sri Dharmasthala Manjunateshwara Law College here, Naushad enrolled as lawyer in 1999 and was working as a junior under leading criminal advocate Purushotham Poojary. Naushad, hailing from Bhatkal was quite successful in his profession and settled down in Mangalore 10 years ago. Poojary told The Times of India that though Naushad was an intelligent lawyer, he was disliked by the police for the way he functioned. Naushad had independently argued on behalf of Atul Rao, prime accused in unnatural death case of Padmapriya, wife of Udupi MLA K Raghupathi Bhat, in the later stages of the case. Poojary said they were unaware of Rashid Malbari's background, and agreed to argue the case only when Malbari's wife requested them. Naushad had received no threats as far as he knew and the incident was quite shocking, he said. Advocate Kallige Tharanath Shetty said Naushad, a member of Mangalore Bar Association, practiced both in Mangalore and Udupi. Describing Naushad as a hard-working lawyer, known for his ethics, Kallige said Naushad did not hesitate to take on the establishment by filing private complaints against the police on behalf of his clients. He was active in providing legal assistance to `alleged' terrorists arrested by the district police last October. Recalling he had warned Naushad to be on his guard when he confided in fellow advocates that he was receiving threat calls, Kallige feels his carefree attitude may have brought about his tragic demise. Earlier in the day, Naushad had argued against his client's extension of police custody. The court had remanded Malbari to judicial custody up to April 23. Ivan D' Souza, advocate, said one must respect Naushad for his willingness and courage to represent the accused, irrespective of their claim to fame or notoriety. "All lawyers take an oath to defend their clients in the best possible manner when they enrol at the bar," Ivan said and added Naushad did precisely that.
Cops booked for lodging false case
http://timesofindia.indiatimes.com/Kanpur/Cops-booked-for-lodging-false-case/articleshow/4386514.cms
10 Apr 2009, 2245 hrs IST, TNN
KANPUR: The additional chief metropolitan magistrate (I) of Kanpur Nagar A K Yadav on Friday ordered to lodge cases against two sub-inspectors for filing a fake case and chargesheet against one Shanu. The presiding judge in his order observed that one person could not be present at two places at a time and the police were not able to convince the court that their report was correct. Hence, a miscellaneous case should be registered against them. The sub-inspectors were identified as Pheelkhana out-post in charge OP Dwivedi and Girish Chand Sharma. According to case file, one Sri Devi had lodged a report at Pheelkhana police station that a robber had stolen her gold chain on September 29,2007. The then outpost incharge had registered the case and investigated the matter and pointed out that Sanu was the man who had committed the robbery. Next incharge OP Awasthi filed a chargesheet in the court. The court was surprised when accused Sanu apprised that he was in Kanpur Jail on that day in a case of 398 IPC. The judge summoned the report from jail and he found that jail authorities ratified the facts stated by Sanu. He sought explanation of the two policemen. The submission given by the two SIs, who appeared in the court and gave an unconvincing answer. The presiding officer took it seriously and asked to register a case against them. Sentenced: Additional district and sessions judge II of Kanpur dehat C M Dixit on Friday convicted two persons for making an attempt to kill someone and sentenced them to five years' rigorous imprisonment along with a fine of Rs 6000. The convicted were identified as Sunil Yadav and Raja Mishra, both according to police were chain-snatchers and professional criminals.
Paying bank loan doesn't absolve one of fraud: apex court
http://www.themoneytimes.com/20090411/paying-bank-loan-doesnt-absolve-one-fraud-apex-court-id-1063322.html
April 11, 2009
New Delhi, April 11: The Supreme Court has ruled that a person accused of having availed a bank loan through cheating, forgery or criminal conspiracy with bank officials would be liable to be prosecuted even after paying the loan.
A bench of Justice S.B. Sinha and Justice Mukundakam Sharma gave this verdict Wednesday, rejecting a West Bengal woman's plea to exonerate her of the charges of taking the bank loan in collusion with its officials as she had paid back the loan.
"When a settlement is arrived at by and between the creditor and the debtor, various criminal offences (like forgery, cheating and criminal conspiracy) committed to take the loan do not come to an end," said the bench, dismissing the woman's plea.
"It is now a well settled principle of law that in a given case, a civil proceeding and a criminal proceeding can proceed simultaneously. The bank is entitled to recover the amount of loan given to the debtor," the bench said.
"If in connection with obtaining the loan, criminal offences have been committed by the persons accused thereof including the officers of the bank, criminal proceedings would also indisputably be maintainable," the bench added.
The apex court bench upheld the trial court ruling, which was further endorsed by the Calcutta High Court. All the courts below had consistently held that an accused cannot be absolved of his of her criminal liability by settling the civil dispute.
The case pertained to Calcutta woman Rumi Dhar, who had taken a loan from the Oriental Bank of Commerce in 1993.
As she failed to pay the bank loan in time, the bank initiated criminal proceedings against the woman, her husband and some other people, including some of its own officials saying they had defrauded and cheated the bank as per a criminal plot hatched amongst themselves.
The matter was referred to the Central Bureau of Investigation (CBI), which filed its probe report to the designated CBI court in Kolkata indicting all the accused for hatching a criminal conspiracy to cheat the bank and sought their trial.
Meanwhile, the bank also moved the debt recovery tribunal and it reached settlement with the woman that she would pay a sum of around Rs.2.5 million to settle her debt to the bank.
As per the settlement, the woman paid the requisite amount to the bank, which also returned her property documents, confiscated by the CBI, which she had pledged to the bank earlier.
After reaching settlement with the bank she approached the trial court in February 2006 pleading that she be exonerated from the criminal charges. But the trial court dismissed her plea. So did the high court in 2007 and the apex court now.
-IANS
JUDGMENTS
Hazarat Ali vs. Special Land Acquisition Officer & Anr. dated 2009-04-01
http://legalapproach.net/case_details.php?jid=1428
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.5530 OF 2002
Hazarat Ali ...Appellant(s)
Versus Special Land Acquisition Officer & Anr. ...Respondent(s)
O R D E R
Heard learned counsel for the parties.
By an order dated 8.02.1972, Special Land Acquisition Officer, Saundatti, allotted plot no. 749, Block Nos. 1-2 of Rampura village District Belgaum, State of Karnataka, to the appellant by treating him as displaced person. After one month and twenty eight days, the concerned officer passed order dated 30.03.1972 whereby he revised the allotment and allotted plot no. 749 to respondent no.2 – Imamsab Mohamadsab Dupadal and one Fakiramma wife of Meerasah Pinjar. The appellant did not challenge the allotment made in favour of respondent no.2 and Fakiramma but, after more than twenty years, the Special Officer passed order dated 9.7.1992 whereby he cancelled the allotment made in favour of respondent no.2 and Fakiramma on the ground that respondent no.2 is residing at Betageri in Dharwad district and no document was produced in support of his eligibility as displaced person.
Respondent no.2 challenged order dated 9.7.1992 in Writ Petition No. 6484/1999, which was allowed by the learned Single Judge on 22.2.2000 on the ground that there was no tangible reason for cancellation of the allotment after twenty years and that too without affording opportunity of hearing to the allottee and making an inquiry. The Division Bench of the High Court dismissed the writ appeal preferred by the appellant and confirmed the findings recorded by the learned Single Judge for invalidation of order dated 9.7.1992.
In our view, when the order of cancellation was quashed on the ground that the same was passed without giving notice to respondent no.2, the learned Single Judge ought to have given liberty to the concerned authority to pass fresh order in accordance with law. His failure to do so has caused prejudice to the appellant herein. The Division Bench too committed the same error by not leaving it open to the concerned officer to pass fresh order.
Accordingly, the appeal is allowed in part, impugned orders are modified and it is made clear that the concerned officer shall be free to pass fresh order in accordance with law after giving reasonable opportunity of hearing to the affected persons.
No costs.
J.
[B.N. AGRAWAL]
J.
[G.S. SINGHVI] New Delhi, April 01, 2009.
Marirudraiah & Ors. vs. B. Sarojamma & Ors. dated 2009-04-02
http://legalapproach.net/case_details.php?jid=1429
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. OF 2009
(Arising out of S.L.P. (C) No. 20131 of 2006)
Marirudraiah & Ors. .... Appellant(s)
Versus
B. Sarojamma & Ors. .... Respondent(s)
J U D G M E N T
P. Sathasivam, J.
Leave granted.
This appeal is directed against the final judgment and orders dated 15.06.2006 and 17.06.2006 passed by the High Court of Karnataka at Bangalore in Regular First Appeal No. 207 of 2003.
3) Regular First Appeal No. 207 of 2003 was filed under
Section 96 of the Civil Procedure Code before the High Court of Karnataka against the judgment and decree dated 25.10.2002 passed in O.S. No. 8252 of 1998 by the XXII Additional City Civil and Sessions Judge, Bangalore granting preliminary decree in a suit for partition and separate possession. In the said appeal, applicants-Suresh Salariya and V. Mohammed Shaffiulla of Bangalore filed I.A. No. 4 of 2005 seeking permission to bring them on record as additional respondents contending that they have purchased suit item No.9 from Smt. B. Sarojamma with the consent of other sharers, appellant Nos. 3, 4, 5 and 8 therein. In the absence of any objection by the appellants, the High Court allowed the said application. It is further seen that the appellants and respondent Nos. 1 to 3 before the High Court filed a compromise petition and the same was signed by all the parties by their respective advocates. On 15.06.2006, all the parties to the compromise petition were present and admitted the execution of the same. They were identified by their advocates. According to the compromise, the parties have no objection to divide the suit schedule joint family properties under Section 6 of the Hindu Succession Act. In terms of the compromise, the appeal itself was disposed of. At that stage, counsel appearing for respondent Nos. 4 and 5 before the High Court, purchasers of item No. 9 submitted that since they purchased the suit item No.9 from appellant No.1, namely, B. Sarojamma with the consent of appellant Nos. 3, 4, 5 and 8, prayed that the suit item No. 9 may be allotted to the share of those persons and they may be directed to pay the value of the share of the remaining parties in respect of suit item No.9 is concerned. It was pointed out by the purchasers that considering the total number of shares to be divided among the parties, suit item No. 9 cannot be divided by metes and bounds. However, the contesting parties submitted that the said dispute has to be relegated to the final decree proceedings. 4) Considering the submissions made, the High Court
accepted the claim of the purchasers-impleaded Respondents and directed the trial Court to work out equity in favour of the purchasers and compensate the plaintiffs and other sharers who are not parties to the sale deed in the final decree proceedings. With the said observation, the High Court dismissed the appeal on 15.06.2006.
5) On 17.06.2006, at the request of the counsel for the respondent Nos. 1 and 2 therein, the matter was listed for “being spoken to”. Thereafter, the High Court, after hearing the learned counsel appearing for the respective parties, clarified the earlier order dated 15.06.2006 and observed that “since the purchasers have stepped into the shoes of the appellants, plaintiffs share has to be ascertained and while working out the equity, the share of the plaintiff in item No.9 shall be compensated in terms of money by considering the market value by the appellants who have sold the property to respondent Nos. 4 and 5.” Though the said course was strongly objected to by the contesting parties, the High Court declined to modify the same and reiterated its earlier order dated 15.06.2006. Aggrieved by these orders, respondents therein filed the above appeal.
6) We heard Mr. Naveen R. Nath, learned counsel for the appellants and Mr. M.N. Krishna Mani, learned senior counsel for the respondents.
7) The questions which arise for consideration in this appeal are:
(a) Whether the High Court was justified in impleading the purchasers pendente lite as party respondents in the appeal?
(b) Whether High Court was justified in issuing direction for allotment of suit item No.9 in favour of the purchasers and compensation to be paid to the other sharers? 8) Considering the limited issue raised, there is no need to traverse all the factual details. Admittedly, after passing of the preliminary decree, the subject-matter of the suit was pending in the High Court as Regular First Appeal No. 207 of 2003 and the same was closed by recording the compromise petition filed by the parties. An application for passing final decree for actual apportionment among the sharers was filed before the trial Court and the same is pending consideration as on date. In view of the fact that B. Sarojamma and Others sold item No.9 in favour of respondent Nos. 8 and 9 herein, they filed I.A. No. 4 of 2005 in the First Appeal pending in the High Court for impleading them as additional respondents. There is no need to go into the question about their entitlement. In view of the fact that they purchased item No.9 of the suit property from B. Sarojamma and Others who are sharers, we are not inclined to disturb the order of the High Court impleading them as respondents in the proceedings. However, as rightly pointed out by learned counsel for the appellants, we are more concerned about the positive direction of the High Court that in the final decree proceedings, the trial court has to work out the equity in favour of the purchasers and compensate the plaintiffs and other sharers who are not parties to the sale deed. As pointed out by learned counsel for the appellants, it is not in dispute that when the purchasers approached the High Court for their impleadment and for directions, final decree proceeding was pending before the trial Court. In fact, it was pointed out that pursuant to the application filed for passing final decree, a Commissioner was appointed for division of the suit properties by metes and bounds. It is relevant to point out that Respondent Nos. 8 and 9 herein purchased item No.9 from the first respondent herein pendente lite. In fact, the courts are not supposed to encourage pendente lite transactions and regularize their conduct by showing equity in their favour. In such circumstances, we are of the view that it is but proper to relegate all the issues in the final decree proceedings and in the case on hand, the same is pending before the trial Court.
9) In the light of the above discussion, we confirm the order
of the High Court with regard to impleading the pendente lite purchasers (Respondent Nos. 8 and 9 herein) as parties to the proceedings, whereas other aspects, namely, direction for payment of compensation to the plaintiff and others and working out equity are set aside. However, all the parties are permitted to put-forth their claim by way of separate application before the trial Court in the final decree proceedings and it is for the trial Court to consider the claim/objection of the parties including equity and pass
appropriate orders in accordance with law.
10) To this extent, the impugned order of the High Court is
modified and the appeal is allowed in part. No costs.
.…...….…….……………………J
(Dr. ARIJIT PASAYAT)
...…………………………………J.
(LOKESHWAR SINGH PANTA)
....…………………………………J.
(P. SATHASIVAM)
NEW DELHI; APRIL 02, 2009.
M/s Joy Auto Works & Ors. vs. Sumer Builders (P) Ltd. & Anr. dated 2009-04-02
http://legalapproach.net/case_details.php?jid=1430
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 2131 OF 2009
(Arising out of S.L.P.(C)NO.1868 of 2008)
M/s Joy Auto Works & Ors. ... Appellants
Vs.
Sumer Builders (P) Ltd. & Anr. ... Respondents
J U D G M E N T
ALTAMAS KABIR, J.
Leave granted.
One Khatau Bhanji (hereinafter referred to as ‘Bhanji’) was said to be the owner of Original Plot No.227 measuring 4874.95 sq. yards within the city of Mumbai. The Arbitrator appointed under the Maharashtra Regional and Town Planning Act, 1966 (hereinafter referred to as the ‘1966 Act’) passed an Award on 24.2.1962 in respect of the said plot and Original Plot No.231 owned by one Javle. In terms of the Award, Javle lost all his rights to Original Plot No.231 while Original Plot No. 227 was divided into plot No. 878 (1000 sq. yards), plot No.879 (3647 sq. yds.) and plot No. 877. By virtue of the said Award, Bhanji was given Final Plot No. 879 measuring 3647 square yards in lieu of Original Plot No.227, while Javle was given plot No.878 measuring 1000 square yards in lieu of Original Plot No.231, and Plot No.877 was earmarked for the construction of a 40 feet Development Plan Road (hereinafter referred to as ‘DP Road’).
3. The appellants herein claimed that they had been granted lease of 1305 sq. yards. out of plot No.879 on 20.10.1962 by Bhanji, which was contiguous to plot No.878, which was also under the occupation of the appellants. The appellant No.1 claims to have been running an automobile garage and carrying on other connected activities on the said properties since 1979 and in connection with the business it had two motorable accesses to plot No.878 through the portion of plot No.879 demised in favour of the appellant by Bhanji, for egress and ingress to and from the public road. According to the appellants there was no other motorable access either to plot No.878 or the portion of the plot No.879 under the occupation of the appellants.
4. According to the appellants in an attempt to have them evicted from plot No.878 Javle complained to the Bombay Municipal Corporation that the said plot was being used by the appellants for commercial purposes although in the Development Plan the same had been earmarked for residential purposes. On such complaint notices were issued for removal of the structures in which such commercial activities were being carried out. Ultimately, however, plot No.878 was purchased by the appellants from Javle and no further steps were taken by the Bombay Municipal Corporation pursuant to the said notices.
5. In the meantime, the respondent No.1 acquired Bhanji’s interest in the remaining portion of plot No.879 and began obstructing the use of the motorable access from the public road to plot Nos.879 and 878. Accordingly, on 11.6.2005 the appellants wrote to the respondent No.1 informing it of their right in Final Plot No.878 and the portion of Final Plot No.879 under their occupation together with the two access roads. Since despite the said letter the respondent No.1 brought two iron gates and building-material to block the entrance to plot Nos.878 and 879 from the public road, the appellant No.2 and the original plaintiff-Mulji Shah were compelled to file L.C. Suit No.5570 of 2005 in the City Civil Court at Bombay for perpetual injunction and by Notice of Motion prayed for an injunction to restrain the respondent from obstructing or interfering with the use, occupation and possession of plot No.878 and plot No.879 to the extent of 1305 sq. yards together with the structures thereupon with motorable access to and from the public road through plot No.879. The appellants prayed for an injunction to restrain the respondents from constructing or placing any gates upon plot No.879, pending the hearing and final disposal of the suit and also to restrain the defendant No.2, the Bombay Municipal Corporation, from approving any plans for construction of a boundary wall or gates on plot No.879, which would obstruct the free and full use of the two accesses by the appellants from the public road.
Considering the facts indicated hereinabove the Trial Court initially granted an ad-interim injunction against the respondent No.1 on 23.12.2005. Upon notices being served the respondents contested the claim and respondent No.1 contended that he had acquired the ownership of Final Plot No. 879 measuring 3043.50 sq. yards by a Deed of Conveyance executed in his favour on 20.12.2004.
When the Notice of Motion was taken up for hearing the Respondent No.1 contended that in terms of the Town Planning Scheme–IV (TPS-IV) there is a 40 feet wide D.P. Road abutting plot No.878 through which the appellants have a right of passage. According to the respondents the appellants have a right of passage from plot No.878 only from the D.P. Road and at no point of time had they enjoyed any right of passage through the property of the respondent No.1, nor have they established any prescriptive right or an easementary right of necessity so as to attract the provisions of Sections 13, 19 and 41 of the Indian Easement Act, 1882.
After hearing the parties on the Notice of Motion the Trial Court rejected the claim of the appellants regarding the two access points through plot No.879 but allowed the appellants to use one of the two access passages, referred to as Access No.2, to reach their plot from the public road. Such access was, however, denied for the use of vehicles.
While passing the aforesaid order, the Trial Court took note of the fact that Mr. Javle, the vendor of Appellant No.2 had by Writ Petition No.1667 of 1984 sought a direction upon the Bombay Municipal Corporation to remove the hutments on the land abutting Final Plot No. 878 which had been set aside for a 40 feet wide D.P. Road and to construct the said road expeditiously. The said writ petition was withdrawn on 7.8.1984 purportedly in view of the statement made by the Bombay Municipal Corporation that action would immediately be taken under the 1966 Act and that the demolition of encroachments, which was preventing the construction of the road, would be carried out in accordance with law. A Notice issued by the Bombay Municipal Corporation on 8.8.1984 to that effect, was challenged by one Arun Sales, a licensee of the Appellant No.1, who filed L.C. Suit No. 5822 of 1984 against the Bombay Municipal Corporation challenging the said notice. Ultimately, the Notice of Motion taken out in the suit was dismissed and the suit itself came to be disposed of in view of a settlement between the appellants and some members of the Javle family whereby the appellant No.2 acquired Final Plot No.878 from the Javle family.
10. In the appeal preferred by the appellants herein the appeal Court accepted the position that the Original Plot No.227 had been divided into Final Plot No.879 measuring 3043.50 sq. yards and Final Plot No.878 which belong to appellant No.2 in respect whereof there is no dispute. However, the appeal Court also came to a finding that there was no material on record to show that the appellants had ever exercised any right of access through Final Plot No.879 belonging to the respondent No.1 and when the appellant No.2 purchased Final Plot No.878 under TPS-IV it was clearly understood that in order to approach the said plot she would have a right of passage through the proposed 40 feet wide D.P. Road provided under the Scheme. As a result, the appellant No.2 could claim a right of passage to and from plot No. 878 against the Bombay Municipal Corporation only through the proposed D.P. Road. Furthermore, the Appellant No.1 being the husband of the Appellant No.2 and since the structure on Final Plot No.879 was contiguous to Final Plot No.878, he could also claim right of passage from the said D.P. Road. The appeal Court held that merely because the Bombay Municipal Corporation had failed to discharge its duties in providing a road and passage to the appellants the appellants could not claim such a right through property belonging to others and thereby create obstructions in their use of the property. The appeal Court, accordingly chose not to interfere with the limited relief granted by the trial Court and dismissed the appeal.
It is the said order of the Appeal Court dated 12.12.2007 which is the subject matter of challenge in the present appeal.
Appearing in support of the appeal Mr. C.A. Sundaram, learned Senior Counsel emphasized the fact that in the absence of any other access to Final plot No.878 or the portion of plot No. 879 the only means of access for over 35 years had been through plot No.879 which formed part of the Original Plot No.227 which was sub-divided into plot Nos.878, 879 and 877. Mr. Sundaram also submitted that the 40 feet wide D.P. Road, indicated in the Development Plan under TPS-IV, was only in contemplation when the Award was passed by the Arbitrator under the 1966 Act and on account of the various encroachments and obstructions the said road has never been constructed. This, in fact, had prompted Javle to file a Writ Petition for a direction upon the Bombay Municipal Corporation to remove the said encroachments and constructions and to take up the construction of the road immediately. Mr. Sundaram submitted that in the absence of any actual road adjacent to plot No.878, the owner thereof had access to her land only through plot No.879. Mr. Sundaram contended that only after the respondent No.1 had acquired the ownership of plot No.879 in 2004 that such right was attempted to be disturbed by the Respondent No.1 by threatening to put up a boundary wall and an iron gate to prevent the use of such passage which was being used for more than 35 years.
13. Mr. Sundaram submitted that though the Special Leave Petition had been filed against an interim order it had become necessary to do so since the only means of egress and ingress to and from plot No.878 and the portion of plot No.879 under the possession of appellant No.1 would be completely obstructed, if the respondents were not restrained from obstructing the motorable access to the said plots which the appellants had been enjoying for over 35 years. Mr. Sundaram urged that the Courts below had wrongly relied on only a proposal for the construction of a 40 feet wide D.P. Road adjacent to plot No. 878 in passing a limited interim order without ascertaining whether such road had actually been constructed and was in existence. Mr. Sundaram also submitted that both the Courts below had lost sight of the fact that plot No.878 and the portion of plot No.879 under the occupation of the appellants was completely land-locked since the construction of the 40 feet wide D.P. Road next to plot No.878 was still in the realm of planning and had not yet been executed. In other words, the appellants had no access to their portion of the plots under their occupation except through plot No. 879.
Mr. Sundaram’s submissions were strongly opposed by Mr. Dushyant Dave, learned Senior Counsel appearing for respondent No.1. He strenuously urged that the appellants never had any right of passage through plot No.879 and their access to plot No.878 and the portion of plot No.879 under their occupation was from the 40 feet wide D.P. Road which was adjacent to plot No.878. Mr. Dave also urged at the outset that the Special Leave Petition was not maintainable since it was directed against the orders passed in an interlocutory application in which concurrent findings of fact had been arrived at.
Mr. Dave then contended that, in any event, since plot No. 878 and the portion of plot No.879 under the occupation of the appellants had been earmarked in the Master Plan for residential purposes under no circumstances could the appellants be permitted under the provisions of the 1966 Act to continue with commercial activities thereupon.
Mr. Dave also contended that it is for the very same reason that a complaint had been made by Javle and notices had been issued thereupon by the Bombay Municipal Corporation to the appellants to remove the structures which were being used for such commercial purposes.
From the site plan which had been made Exh. ‘A’ in the suit, Mr. Dave pointed out that the claim of the appellants to a right of motorable access through plot No.879 renders the said plot unfit for any use by the respondent No.1 and that in the earlier suits the appellants have never asserted such right.
Mr. Dave submitted that while disposing of the Notice of Motion dated 11.9.1975, the learned Trial Court noticed the fact that after obtaining an ad-interim order of injunction, the appellants had tried to convert the temporary structures on the plots in question into a permanent ones. Mr. Dave also submitted that while dismissing the Notice of Motion, the High Court also took into consideration the Town Planning Scheme No.IV, Mahim, which came into force on 15th August, 1963, whereunder the Final Plot allotted to Bhanji and Javle could not be used for commercial purposes and that accordingly the appellants were not entitled to an order of injunction which would have the effect of altering the said Scheme and the use of the plots earmarked for particular purposes.
On behalf of the Bombay Municipal Corporation it was submitted by Mr. Shekhar Naphade, learned Senior Counsel, that in the Development Scheme conceived by the Planning Authority different plots had been earmarked for different purposes. Mr. Naphade urged that under the TPS-IV Scheme certain Final Plots which had been identified for industrial purposes could be used for such purposes only. Similarly, except the plots which had been allotted for ‘public purposes’ the remaining plots could be used for residential purposes and Final Plot Nos. 878 and 879 fell within the ambit of paragraph 1(n) of TPS-IV and could be used for residential purposes only. Mr. Naphade submitted that the appellants had been offered an alternative plot of land measuring 500 sq. yards at Powell Land Industrial Estate, Kondivili, Bombay, but such offer had been turned down by the appellants.
Ultimately, on the complaint made by Javle, the appellants were issued notices under Sections 89 and 90 of the 1966 Act to remove the structures from the plots in question and also for the eviction of the appellants therefrom.
Mr. Naphade submitted that upon service of the said notices, the appellants filed Suit No.6544 of 1975 in the City Civil Court at Bombay, inter alia, for a declaration that the Final Scheme viz. TPS-IV was not binding on the appellants and that the said notices under Sections 89 and 90 of the said Act were illegal and void and had no effect in law. In the said suit, the appellants took out a Notice of Motion for an ad-interim order of injunction to restrain the Bombay Municipal Corporation from demolishing the structures which had been put up in Final Plot No.878 and a part of Final Plot No.879. Ultimately, as indicated hereinabove, the Notice of Motion was dismissed and the appeal taken against the said order was withdrawn by Mulji Shah on 1st August, 1977. Subsequently, on 29th September, 1977, Mulji Shah filed another suit in the City Civil Court in Bombay, being Suit No.7540 of 1977, in which an ex-parte ad-interim order was passed restraining the Bombay Municipal Corporation from removing him from the Final Plot No.878 and a part of Final Plot No.879 and from removing the structures thereupon in any manner. The said Notice of Motion came up for hearing in 1979 and was dismissed for default and the ad-interim injunction was vacated.
22. Mr. Naphade also submitted that thereafter
Dr. K.V. Javle filed Writ Petition No.1667 of 1984 and prayed for a Mandamus upon the Bombay Municipal Corporation and its officers to carry out their statutory obligations under the 1966 Act and the rules framed thereunder and in particular to give effect to the TPS-IV, Mahim, by directing the said authorities to remove all the structures, temporary or otherwise, from Final Plot No.878 and to direct the authorities of the Bombay Municipal Corporation to hand over and deliver vacant possession of the said plot measuring 1000 sq. yards and for a further direction on the said respondents to construct the DP road adjoining Final Plot No.878. Mr. Naphade pointed out that on the assurance given on behalf of the Bombay Municipal Corporation and its authorities that notice for demolition would be issued under Sections 89 and 90 of the 1966 Act and served within two weeks and demolition will be carried out as prescribed in law, the writ petition was allowed to be withdrawn by order dated 7th August, 1984.
Mr. Naphade submitted that in 1984 a fresh notice was given to the appellants for removal of the structures on the plots in question. Thereafter, as mentioned hereinabove, Arun Sales, a licensee of the Appellant No.1, filed L.C. Suit No.5822 of 1984 against the Bombay Municipal Corporation challenging the notice dated 8th August, 1984, and obtained interim orders which were subsequently vacated.
Mr. Naphade contended that the structures raised by the appellants were not in conformity with the Town Planning Scheme though in the suit filed by the appellants an attempt has been made to make out a case that since the 40 feet wide DP Road had not yet been constructed by the Corporation, it should not permit any new construction on Final Plot No.879 so as to block the only access available over the said plot to Plot No.878. Mr. Naphade submitted that such a case was against the provisions of the Town Planning Scheme and taking advantage of an order of injunction, the appellants could not be allowed to continue to use plot No.878 and the portion of plot No.879 in their occupation for commercial purposes.
Mr. Naphade submitted that the learned Trial Judge had, while denying motorable access through plot No.879, allowed access otherwise to the appellants from the main road to the premises under their occupation.
Since the appellants have come up against the refusal of the High Court to grant their interim prayer to have motorable access to plot No.878 and a portion of plot No.879 under their possession from the main road through plot No.879 during the pendency of the suit, we can only consider the case of the parties on a prima facie basis, inasmuch as, the suit is yet to be decided on merits.
The case being argued on behalf of the appellants, may not ultimately be dependent upon whether the appellants run any commercial venture on plot No.878 and the portion of plot No.879 under their possession, but the question of such a right of passage may ultimately be relevant if it is established that there is no other access to the said premises. Accordingly, having regard to Exh.A in the suit, which is a site plan which has been referred to as Exh.C in the paper book at page 120, some provision has to be made even at the interim stage to preserve a motorable access from the main road to the premises under the occupation of the appellants so that upon development of plot No.879 such a right is not totally extinguished. While the Trial Court has allowed access on foot from the main road to the said premises, in our view, a motorable access should be preserved at least till the 40 feet wide DP road adjacent to plot No.878 is available to the appellants for egress and ingress from their portion of the premises, which is otherwise land-locked, on till the disposal of the suit.
It would not be appropriate on our part to make any observation on the merits of the case of the parties since the same is yet to be decided. We are only required to ensure the balance of convenience and inconvenience and the equities between the parties at this stage. We are also required to consider if any of the parties will suffer irreparable loss and injury unless an interim order, as prayed for by the appellants, is allowed or denied. This is not one of those cases where the appellants may be suitably compensated by damages in case their suit succeeds.
Having considered the submissions advanced on behalf of the respective parties, including that of the Bombay Municipal Corporation, we are of the view that ad-interim protection, as prayed for by the appellants, should be given in the facts and circumstances of the case.
29. We, therefore, direct that the appellants plaintiffs will be entitled to a motorable access from the main road to Plot No.878 through Plot No.879 and the portion of Plot No.879 in their possession either till the disposal of the suit or till the construction of the 40 feet wide D.P. Road running adjacent to Final Plot No.878 by the Bombay Municipal Corporation in terms of the assurance given by it on 7th August, 1984, in Writ Petition No.1667 of 1984 and also in terms of the directions given in Writ Petition No.2443 of 2006 filed by the Respondent No.1 before the Bombay High Court, whichever is earlier. However, once the said 40 feet wide D.P. Road is constructed by the Bombay Municipal Corporation, giving clear motorable access to Plot No.878, the Respondent No.1 should no longer be deprived of the full enjoyment of its property and will be entitled to move the Trial Court to get the right of way through Plot No.879 granted by this order revoked and this order will not stand in the way of such an order being passed by the Trial Court, if it is satisfied that sufficient motorable access is available to the appellants on account of construction of the 40 feet wide D.P. Road. We also make it clear that the right of motorable access to Plot No.878 through Plot No.879 granted by this order to the appellants will not preclude the Bombay Municipal Corporation from taking any action as it may be entitled to under the 1966 Act or other relevant enactments in relation to the Town Planning Scheme No.IV, Mahim. Furthermore, subject to any order to the contrary that may have been passed in any other proceeding, the Bombay Municipal Corporation must implement the assurance given by it on 7th August, 1984, when the Writ Petition No.1667 of 1984 was permitted to be withdrawn, regarding construction of the 40 feet wide D.P. Road adjacent to Final Plot No.878, with utmost expedition.
We, therefore, allow the appeal to the extent indicated hereinabove.
There will be no order as to costs.
(ALTAMAS KABIR)
(MUKUNDAKAM SHARMA)
New Delhi Dated:2.4.2009
Rama Chaudhary vs. State of Bihar dated 2009-04-02
http://legalapproach.net/case_details.php?jid=1431
REPORTABL E
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. OF 2009
(Arising out of S.L.P. (Crl.) No. 370 of 2009
Rama Chaudhary .... Appellant(s)
Versus
State of Bihar .... Respondent(s)
J U D G M E N T
P. Sathasivam, J.
Leave granted.
This appeal is directed against the order of the High Court of Judicature at Patna passed in Criminal Revision No. 437 of 2008 dated 10.12.2008 in and by which, after finding that there is no illegality or irregularity in summoning the witnesses named in the supplementary charge-sheet, the High Court rejected the criminal revision filed by the appellant herein against the order dated 19.02.2008 passed in Sessions Trial No. 63 of 2004 whereby the learned Additional Sessions Judge allowed the application of the prosecution to summon the witnesses named in the supplementary charge-sheet.
3) Brief facts of the case are as follows:
a) On the basis of fardebayan of Smt. Champa Devi – wife of Awadh Yadav in Siwan Mofussil Police Station case No. 8 of 2001 was registered against the appellant and others on 13.01.2001 under Section 364/34 of IPC. b) On 08.08.2003, an offence under Section 27 of the Arms Act was also added. The police, after completion of investigation, submitted charge-sheet on 29.08.2003 against the appellant and other five accused under Section 364/34 IPC and Section 27 of the Arms Act. In the said charge-sheet, the prosecution has conveyed that they are going to examine altogether 18 witnesses. c) On 11.03.2004, the learned Sessions Judge framed charges under Sections 120-B, 364/34, 302/34 and 201/34 IPC read with Section 27 of the Arms Act. The prosecution had examined 21 witnesses.
d) When the trial was at the stage of closure, on 08.09.2007, another charge-sheet was submitted by the Police in the court of Chief Judicial Magistrate, Siwan, against the charge-sheeted accused persons adding names of eight new witnesses in the charge-sheet. In the said report/charge-sheet, Police did not mention name of any accused. The learned Chief Judicial Magistrate, Siwan, without proceeding under Section 190 Cr.P.C. forwarded the second charge-sheet to the court of Session/Special Court, Siwan, on 10.09.2007.
e) On 12.01.2008, the prosecution has filed an application in a pending Sessions Trial No. 63 of 2004 to summon the prosecution witnesses named in the second charge-sheet. The appellant has filed a reply contending that the application filed by the prosecution is not maintainable and the same was filed with mala fide intention. By order dated 19.02.2008, the learned Sessions Judge, Special Court allowed the said application to summon the witnesses by observing that the goal of criminal trial is to discover the truth and to achieve that goal the best possible evidence is to be brought on record. The learned trial Judge issued summons to the newly added witnesses and posted the case to 23.02.2008. Being aggrieved by the said order, the appellant filed Criminal Revision No. 437 of 2003 under Sections 397 and 401 of Cr.P.C. before the High Court. By the impugned judgment and order dated 10.12.2008, the High Court dismissed the said revision. Aggrieved by the same, the appellant filed the above appeal.
4) We heard Mr. U.U. Lalit, learned senior counsel for the appellant and Mrs. Vimla Sinha, learned counsel for the State of Bihar.
5) Mr. U.U. Lalit, learned senior counsel for the appellant, after taking us through relevant materials as well as Section 173(2) and (8) of the Code of Criminal Procedure, 1973 contended that “further investigation” referred to in sub- clause (8) does not mean “re-investigation” against the accused persons who are already facing trial in the case. He further pointed out that, in the present case, after submission of charge-sheet under Section 173(2) in the year 2003, the cognizance of the offence was taken by the Chief Judicial Magistrate and the case was remitted to the Court of Sessions. Trial was commenced and altogether 21 witnesses have been examined. At a belated stage, the prosecution has filed the present report for further investigation with a view to delay the disposal of the trial. According to him, further investigation as contemplated in Section 173(8) of the Cr.P.C. cannot be allowed to be made into the very same offence in relation to the same accused if the trial had already commenced. According to him, at this juncture, allowing the application of the prosecution for summoning eight new witnesses would prejudice the defence of the accused in the trial.
6) On the other hand, Mrs. Vimla Sinha, learned counsel for the State of Bihar, submitted that sub-section (8) of Section 173 Cr.P.C. recognizes right and confer statutory duty on the Investigating Agency to conduct further investigation and submit supplementary charge-sheet on the basis of fresh materials at any stage and no prior permission from the Magistrate is required for further investigation. She further submitted that Section 231 of Cr.P.C. gives unfettered right to the prosecution to produce any person as witness even though such person may not have been examined by the Police if examination of such person is necessary for unfolding the prosecution story.
7) Sub-section (1) of Section 173 of Cr.P.C. makes it clear that every investigation shall be completed without unnecessary delay. Sub-section (2) mandates that as soon as the investigation is completed, the officer in charge of the police station shall forward to a Magistrate empowered to take cognizance of the offence on a police report, a report in the form prescribed by the State Government mentioning the name of the parties, nature of information, name of the persons who appear to be acquainted with the circumstances of the case and further particulars such as the name of the offences that have been committed, arrest of the accused and details about his release with or without sureties. Among other sub-sections, we are very much concerned about subsection (8) which reads as under:-“(8) Nothing in this section shall be deemed to preclude further investigation in respect of an offence after a report under sub-section (2) has been forwarded to the Magistrate and, where upon such investigation, the officer in charge of the police station obtains further evidence, oral or documentary, he shall forward to the Magistrate a further report or reports regarding such evidence in the form prescribed; and the provisions of sub-sections (2) to (6) shall, as far as may be, apply in relation to such report or reports as they apply in relation to a report forwarded under sub-section (2).”
8) A mere reading of the above provision makes it clear that irrespective of report under sub-section (2) forwarded to the Magistrate, if the officer in-charge of the police station obtains further evidence, it is incumbent on his part to forward the same to the Magistrate with a further report with regard to such evidence in the form prescribed.
9) The above said provision also makes it clear that
further investigation is permissible, however, reinvestigation is prohibited. The law does not mandate taking of prior permission from the Magistrate for further investigation. Carrying out a further investigation even after filing of the charge-sheet is a statutory right of the police. Reinvestigation without prior permission is prohibited. On the other hand, further investigation is permissible.
10) From a plain reading of sub-section (2) and sub-section (8) of Section 173, it is evident that even after submission of police report under sub-section (2) on completion of investigation, the police has a right to “further” investigation under sub-section (8) of Section 173 but not “fresh investigation” or “reinvestigation”. The meaning of “Further” is additional; more; or supplemental. “Further” investigation, therefore, is the continuation of the earlier investigation and not a fresh investigation or reinvestigation to be started ab initio wiping out the earlier investigation altogether. Subsection (8) of Section 173 clearly envisages that on completion of further investigation, the investigating agency has to forward to the Magistrate a “further” report and not fresh report regarding the “further” evidence obtained during such investigation.
As observed in Hasanbhai Valibhai Qureshi vs. State of Gujarat and Others, (2004) 5 SCC 347, the prime consideration for further investigation is to arrive at the truth and do real and substantial justice. The hands of investigating agency for further investigation should not be tied down on the ground of mere delay. In other words, the mere fact that there may be further delay in concluding the trial should not stand in the way of further investigation if that would help the court in arriving at the truth and do real and substantial as well as effective justice.
If we consider the above legal principles, the order dated 19.02.2008 of the trial Court summoning the witnesses named in the supplementary charge-sheet cannot be faulted with. It is true that after enquiry and investigation charges were framed on 11.03.2004 and thereafter in the course of trial about 21 witnesses were examined. In the meantime, Police submitted supplementary charge-sheet with certain new materials and on the basis of supplementary charge-sheet, the prosecution filed an application on 12.01.2008 in a pending Sessions Trial No. 63 of 2004 to the trial Court for summoning the persons named in the charge-sheet for their examination as prosecution witnesses. On a careful perusal of the application, the trial Court, by order dated 19.02.2008, allowed the same and has summoned those witnesses named in the supplementary charge-sheet.
13) The law does not mandate taking prior permission from the Magistrate for further investigation. It is settled law that carrying out further investigation even after filing of the charge-sheet is a statutory right of the Police. [vide K. Chandrasekhar vs. State of Kerala and Others, (1998) 5 SCC 223.] The material collected in further investigation cannot be rejected only because it has been filed at the stage of trial. The facts and circumstances show that the trial Court is fully justified to summon witnesses examined in the course of further investigation. It is also clear from Section 231 of the Cr.P.C. that the prosecution is entitled to produce any person as witness even though such person is not named in the earlier charge-sheet. All those relevant aspects have been taken note of by the learned Magistrate while summoning the witnesses based on supplementary charge-sheet. This was correctly appreciated by the High Court by rightly rejecting the revision. We fully agree with the said conclusion. 14) In the light of the above discussion, we do not find any valid ground for interference, consequently, the appeal fails and the same is dismissed.
.…….…….……………………..J.
(S.B. SINHA)
...…………………………………J.
(P. SATHASIVAM)
NEW DELHI; APRIL 02, 2009.
About Me
- Kamal Kumar Pandey (Adv. Supreme Court of India)
- Lawyer Practising at Supreme Court of India. Court Experience: Criminal, Civil & PIL (related to Property, Tax, Custom & Duties, MVAC, insurance, I.P.R., Copyrights & Trademarks, Partnerships, Labour Disputes, etc.) Socio-Legal: Child Rights, Mid Day Meal Programme, Sarva Shiksha Abhiyaan, Women Rights, Against Female Foeticide, P.R.Is, Bonded Labour, Child labour, Child marriage, Domestic violence, Legal Literacy, HIV/AIDS, etc. Worked for Legal Aid/Advise/Awareness/Training/Empowerment/Interventions/Training & Sensitisation.
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