Judgments

High Court of Delhi

Mukesh Vs. State

MANU/DE/5807/2017

23.12.2017

Criminal

Mere presence of a knife on Appellant cannot impute pre-meditation on his part

The Appellant has impugned the judgment and the order on sentence passed by learned Additional Sessions Judge, whereby he has been convicted for committing the offence punishable under Section 302 of Indian Penal Code, 1860 (IPC) and sentenced to undergo Life Imprisonment with a fine of Rs. 1 Lac and, in default of payment of fine, to further undergo Simple Imprisonment for one year. The only issue which arises for our consideration is whether an offence under Section 302 or 304 of IPC is made out i.e. whether it is a case of murder or culpable homicide not amounting to murder.

In view of fact that the Appellant used a knife to stab the deceased, this Court has no hesitation in concluding that irrespective of whether or not he had the intention to cause death, he definitely had the intention of causing such bodily injury, i.e. a stab wound on the chest, that is likely to cause death. Hence, the act of the appellant is clearly covered under the ambit of Section 299 of IPC and would qualify as Culpable Homicide.

The facts of the present case do not indicate that at any stage the Appellant, upon grave and sudden provocation, had lost the power of self control and caused the death of the deceased. The eyewitness testimony does not seem to point to either a grave or sudden provocation or any act of the appellant deprived of self control. Hence Exception 1 to Section 300 of IPC shall not be applicable in this case.

Regarding Exception 4, the Supreme Court, in Gurmukh Singh v. State of Haryana, while discussing the question as to whether the offence therein fell under Section 302 or Section 304 of IPC, has identified four ingredients which need to be fulfilled for invoking the said exception which are that death should be caused (a) without premeditation, (b) in a sudden fight; (c) without the offender's having taken undue advantage or acted in a cruel or unusual manner; and (d) the fight must have been with the person killed.

From the facts as established on record, ingredients of Exception 4 are satisfied in the instant case. The prosecution has not been able to demonstrate any animosity or premeditation in the actions of the Appellant. Mere presence of a knife on the appellant cannot impute premeditation on his part. PW 1 has stated in his cross examination that Appellant was a 'Bad Character' of Khichripur, hence the possession of a knife can be reasonably attributed to various other factors and not a premeditated intention to cause the death of the deceased. As per the statement of PW-1 there was a quarrel between the appellant and the deceased regarding some money that appellant had loaned to the deceased which he was unable to pay back. It was during this quarrel that the Appellant took out a knife and stabbed the deceased on his chest, which injury proved to be fatal. Further, in the instant case the Appellant inflicted a single stab wound, which clearly appears to be an act done at the spur of the moment without any premeditation. There were no further injuries inflicted on the deceased and hence it cannot be stated that the Appellant had acted in a cruel or unusual manner. Though it cannot be said that whenever the death is on account of a single blow, the offence is one of 'culpable homicide not amounting to murder' and not of 'murder', this fact, when weighed with the other facts and circumstances of the case, becomes a factor in deciding whether the offence falls under the Exceptions to Section 300 of IPC.

Hence, the facts do not point to a calculated or pre- meditated intent on part of the Appellant to kill the deceased. Clearly, present is not a case for conviction under Section 302 of IPC. In view of the contentions put forth and the factual background, Exception 4 to Section 300 of IPC would be applicable to the present case. It would, therefore, be appropriate to convict the accused under Section 304 Part I of IPC.

The Appeal is entitled to succeed in part. The Appellant's conviction under Section 302 of IPC is altered to Section 304 Part I of IPC. His sentence is therefore modified; instead of life imprisonment, he shall serve rigorous imprisonment for ten years. The sentence of fine is also modified to the extent that fine of Rs. 1 lakh is reduced to Rs. 50,000/- and in default of payment of fine, he shall undergo SI for three months.

Relevant

Gurmukh Singh vs. State of Haryana MANU/SC/1542/2009

Tags : Conviction Legality Offence Nature

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High Court of Bombay

Nagnath Devidasrao Padhye and Ors. Vs. The State of Maharashtra and Ors.

MANU/MH/3382/2017

20.12.2017

Service

Tribunals or Courts cannot direct employer to fill up posts ignoring prescribed procedure for selection and appointment

In facts of present case, the Petitioners were holding the certificates issued by the District Rehabilitation Officer, declaring that, they are project affected persons and are entitled to get benefit of the scheme for rehabilitation of the project affected persons in the form of concession in getting the Government service. Petitioners applied for being appointed to the post of Laboratory Assistant from the quota meant for project affected persons on 16th April, 1998 and July, 1997 respectively.

The Dean, Government Medical College, had opposed Original Applications mainly on the ground that, there were only 20 sanctioned posts of Laboratory Assistants, while the quota of 5% meant for the project affected persons was already exhausted and therefore, the above named petitioners were not liable to be appointed or confirmed in the service under the scheme of rehabilitation of the project affected persons. The Tribunal dismissed the Original Applications on the basis of the judgments in the cases of Secretary, State of Karnataka and others v. Umadevi and others and Rajendra pandurang Pagare and another v. State of Maharashtra and others respectively, holding that the petitioners have no right to seek appointment and confirmation in the service without following due procedure meant for recruitment even for the post reserved for the project affected persons.

In the present case, the quota meant for project affected persons was already exhausted since the candidate at serial No. 132 was appointed from the category of project affected persons on 1st July, 1997. His date of retirement is 30th September, 2036. If that be so, both the Petitioners were not entitled to seek appointment to the posts of Laboratory Assistants from the quota meant for the project affected persons. In view of the circular dated 3rd January, 1997, they were not entitled to claim appointment to the posts of Laboratory Assistant by directly making applications to the Appointing Authority and the Appointing Authority also was not legally authorised to appoint them by entertaining such applications. Both the Petitioners, though were not entitled to be appointed from the category of project affected persons, had secured appointments pursuant to the interim reliefs granted by the Tribunal. It cannot be said that, the Petitioners were appointed to the posts of Laboratory Assistants by following due procedure that was prescribed in the circular dated 3rd January, 1997.

When there was no post available for being filled up from the candidates from the category of project affected persons, the Dean of Government Medical College, Nanded had no authority to appoint the petitioners by entertaining their applications. Therefore, the appointments of the petitioners, which were made without following the due procedure, would be covered by the judgment in the case of Umadevi.

Only because the Dean of the Government Medical College appointed some other persons from the category of project affected persons without following due procedure, the Petitioners cannot claim parity seeking benefit of such irregular/illegal act. When the petitioners seek the assistance of the Court, it is necessary for them to establish their legal right to get appointed to the posts of Laboratory Assistants. They cannot get appointed to the said posts illegally by pointing out to some other illegal appointments.

Both the Petitioners were appointed by the Dean, Government Medical College, Nanded pursuant to the interim orders passed by the Tribunal. It is well settled that, the Tribunals or Courts cannot direct the employer to fill up the posts ignoring the prescribed procedure for selection and appointment. The Tribunal rightly dismissed the Original Applications.

Tags : Appointment Scheme Benefit

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High Court of Gujarat

Parvez Mohammed Iqbal Kazi Vs. State of Gujarat

MANU/GJ/2061/2017

19.12.2017

Criminal

Appellate Court has ample powers to order further inquiry or retrial and in case of acquittal even for committing for trial and also has power to award sentence if accused is found guilty

The Applicant has challenged the judgment passed by the learned Sessions Court reversing the judgment of acquittal in favour of the Applicant by the learned 5th Additional Chief Metropolitan Magistrate. The Applicant is facing charges under Sections 406, 409, 420, 467, 468, 471, 201 and 114 of Indian Penal Code, 1860 ("IPC") for siphoning off an amount of Rs. 4,00,000/- with the help of forged Cheque.

The bare perusal of Section 386 of the Code of Criminal Procedure, 1973 (CrPC) makes it clear that, the Appellate Court has ample powers to order further inquiry or retrial and in case of acquittal even for committing for Trial and also has power to award sentence if accused is found guilty. Therefore, the powers of the Appellate Court is not limited and thereby if Trial Court has failed to appreciate that the evidence of witness is not available on record in its full format then in fact before concluding the Trial, the Trial Court itself should have recalled the witness for recording his evidence in accordance with law if his evidence is not available on record and proceeding of the case.

Therefore, when such irregularity was found by the Appellate Court and when Appellate Court has tried its level best to reconstruct the deposition which is not available, Appellate Court has rightly ordered to reconstruct such deposition by calling the witness since Appellate Court has got ample power to order retrial of the case.

It is evident from the record that, in present case the Appellate Court has followed both such steps, whereby, at first instance, the Appellate Court has tried to restrict the record and when it was confirmed that reconstruction is not possible, the Appellate Court has ordered for retrial of the case for limited purpose so as to record evidence of the witness afresh and to record the statement of the accused under Section 313 with reference to such witness. Thereby, the trial Court has instead of ordering the retrial of entire Trial against the Applicant - accused remanded the matter for limited purpose with a direction to decide it again within the period of six months. In view of operative portion of the impugned order there is no illegality so as to interfere with the impugned order. Revision Application dismissed.

Tags : Acquittal Reversal Validity

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High Court of Madras

B. Rajyalakshmi and Ors. Vs.The Union of India Owning Southern Railway

MANU/TN/4215/2017

19.12.2017

Civil

Burden of proving that, victim is not a bona fide passenger lies on Railways

In facts of present case, according to Appellant, the deceased used to travel in train by purchasing II class ticket and that they came to know from the Railway Police, that the deceased while travelling in one of the train, due to over crowd, jerk and jolt of the train, accidentally fell down from the running train, suffered grievous injuries and died on the spot. A case was registered under Section 174 of Code of Criminal Procedure, 1973 (Cr.P.C.) According to the Appellants, the II class ticket purchased by the deceased was said to have been lost and the same could not be retrieved by police. The claimants filed their claim petition claiming a compensation of Rs. 4,00,000/- (Rupees four lakhs only) for the death of deceased. The Tribunal, dismissed the claim petition stating that, the claimants have not produced the train ticket and established that the victim was a bona fide passenger. Only issue involved in the present appeal is whether the non-production of the ticket by the claimant is fatal to their case.

In Union of India v. Prabhakaran Vijayakumar and others, the Supreme Court, held that, it is well settled that, if the words used in a beneficial or welfare statute are capable of two constructions, the one which is more in consonance with the object of the Act and for the benefit of the person for whom the Act was made should be preferred. Beneficial or welfare statutes should be given a liberal and not literal or strict interpretation.

The claimants have filed the claim petition without producing the ticket purchased by the victim. In the judgments relied upon by the learned counsel appearing for the Appellants it has been held that, it is not possible for the legal representatives to produce the ticket or valid authority, who travelled in the train, and the burden of proving that the deceased-victim was not a bona fide passenger is on the Railways and not on the claimants.

The Apex Court as well as present Court had repeatedly held that, the burden of proving that the victim is not a bona fide passenger lies on the Railways and that non-production of Railway ticket is not fatal to the case of the claimants. Therefore, the Tribunal should not have dismissed the petition on that ground. The judgments relied upon by the learned counsel appearing for the appellants squarely applies to the facts and circumstances of the present case.

In present, circumstances, the order passed by the Railway Claims Tribunal, is set aside and the matter is remitted back to the Tribunal for fresh consideration. The Tribunal is directed to decide the quantum of compensation payable to the claimants afresh and pass orders, on merits and in accordance with law, within a period of three months from the date of receipt of a copy of this judgment. Appeal allowed.

Relevant

Union of India (UOI) vs. Prabhakaran Vijaya Kumar and Ors.MANU/SC/7608/2008

Tags : Bona fide Burden of proof Compensation

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Supreme Court

Harpal Singh Vs. Ashok Kumar and Ors.

MANU/SC/1612/2017

15.12.2017

Property

Validity of a decree can be challenged before an executing court only on ground of an inherent lack of jurisdiction which renders the decree a nullity

In 2002, a suit was instituted by the Respondents for a permanent injunction, alleging that the Defendants to the suit were threatening to interfere with the possession of their lands. The suit was dismissed by the Civil Judge, holding it to be barred by the provisions of Section 185 (1) of the Delhi Land Reforms Act, 1954. The Trial Court held that, the Plaintiff had failed to place any registered document on record to establish his ownership in respect of the land. Moreover, in the view of the Trial Court, it was necessary for the Plaintiffs to first seek a declaration from the revenue Court as bhoomidars upon which alone an injunction could be sought. Subsequently, on 31st December, 2005 the Respondents instituted a suit under Section 6 of the Specific Relief Act against the Appellant, alleging that, the Appellant had forcibly taken possession of the land. The suit was decreed by the trial court ex-parte on 30th May, 2009, upon which execution was initiated by the Respondents as decree-holders.

The petition sought to challenge an order of the Additional District Judge rejecting the objections of the Appellant in the course of the execution of a decree. A learned Single Judge of the High Court of Delhi, by a judgment rejected a petition under Article 227 of the Constitution of India. High Court rejected the submission that, the decree obtained under Section 6 of the Specific Relief Act was a nullity on the ground that, the suit was barred by Section 185 of the Delhi Land Reforms Act, 1954.

The Appellant submitted that, since an earlier suit seeking a permanent injunction was dismissed by a competent civil court in view of the provisions of Section 185(1) of the Delhi Land Reforms Act 1954, and since the land is 'agricultural' in nature, the civil court did not have jurisdiction in the matter. The decree was a nullity and this defence, it was submitted, could be raised in execution.

The position of law which has been consistently followed is that where the land has not been used for any purpose contemplated under the Land Reforms Act and has been built upon, it would cease to be agricultural land. Once agricultural land loses its basic character and has been converted into authorized/unauthorized colonies by dividing it into plots, disputes of plot holders cannot be decided by the revenue authorities and would have to be resolved by the civil court. The bar under Section 185 the Delhi Land Reforms Act, 1954 would not be attracted. This position of law has not been controverted in the present proceedings.

The validity of a decree can be challenged before an executing Court only on the ground of an inherent lack of jurisdiction which renders the decree a nullity. In Hira Lal Patni v. Sri Kali Nath, this Court held that, the validity of a decree can be challenged in execution proceedings only on the ground that the court which passed the decree was lacking in inherent jurisdiction in the sense that it could not have seisin of the case because the subject-matter was wholly foreign to its jurisdiction or that the Defendant was dead at the time the suit had been instituted or decree passed, or some such other ground which could have the effect of rendering the court entirely lacking in jurisdiction in respect of the subject-matter of the suit or over the parties to it.

In Sunder Dass v. Ram Prakash, this Court held that, the law is well settled that an executing Court cannot go behind the decree nor can it question its legality or correctness. But there is one exception to this general Rule and that is that where the decree sought to be executed is a nullity for lack of inherent jurisdiction in the court passing it, its invalidity can be set up in an execution proceeding. Where there is lack of inherent jurisdiction, it goes to the root of the competence of the court to try the case and a decree which is a nullity is void and can be declared to be void by any court in which it is presented. Its nullity can be set up whenever and wherever it is sought to be enforced or relied upon and even at the stage of execution or even in collateral proceedings. The executing court can, therefore, entertain an objection that the decree is a nullity and can refuse to execute the decree. By doing so, the executing court would not incur the reproach that it is going behind the decree, because the decree being null and void, there would really be no decree at all.

In the present case, the finding of fact which was arrived at by the executing Court in the course of its decision on the objection to execution is that, the land had ceased to be agricultural land and was not being used for purposes contemplated under the Delhi Land Reforms Act, 1954. The suit which was decreed on 30th May, 2009 was a suit under Section 6 of the Specific Relief Act which in any event, did not require a determination of the question of title. The earlier suit was a suit for injunction. The finding of fact which has been arrived at is to the effect that, the land in question had ceased to be agricultural in nature on the date of the institution of the suit. Hence, it cannot be held that, the decree of the trial Court was a nullity. The land was not governed, as a result, by the Delhi Land Reforms Act, 1954 since it was not agricultural and the bar under Section 185 of Delhi Land Reforms Act, 1954 was not attracted. There was no inherent lack of jurisdiction and the objection to the execution of the decree was without foundation. There is no merit in the civil appeal, which is accordingly dismissed.

Relevant

Hira Lal Patni v. Sri Kali NathMANU/SC/0041/1961
: (1962) 2 SCR 747, Sunder Dass v. Ram Prakash MANU/SC/0368/1977

Tags : Decree Execution Jurisdiction

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Supreme Court

Raj Kumar Bhatia Vs. Subhash Chander Bhatia

MANU/SC/1617/2017

15.12.2017

Civil

Supervisory jurisdiction conferred on High Court is confined only to see whether an inferior Court or tribunal has proceeded within parameters of its jurisdiction

The present appeal arises from a judgment of the High Court by which an order of the trial Court allowing an application filed by the Appellant for amendment of the written statement was set aside. The High Court has held that, the amendment sought in the written statement was not bona fide and was not necessary for determining the real question in controversy between the parties. The suit was instituted in 2001 and the written statement was filed in 2003. The High Court held that, based on facts which were known to the Appellant in 2003, a belated attempt was made thirteen years later in 2016 to amend the written statement to introduce an averment on the existence of coparcenary/Hindu undivided property. On merits, the High Court held that, it is a settled principle that after the enactment of the Hindu Succession Act, 1956, property which devolves on an individual from a paternal ancestor does not become HUF property but the inheritance is in the nature of self-acquired property unless an HUF exists at the time of the devolution.

The case which was sought to be set up in the proposed amendment was an elaboration of what was stated in the written statement. The High Court has in the exercise of its jurisdiction Under Article 227 of the Constitution entered upon the merits of the case which was sought to be set up by the Appellant in the amendment. This is impermissible. Whether an amendment should be allowed is not dependent on whether the case which is proposed to be set up will eventually succeed at the trial. In enquiring into merits, the High Court transgressed the limitations on its jurisdiction under Article 227 of the Constitution.

In Sadhna Lodh v. National Insurance Co., this Court has held that, the supervisory jurisdiction conferred on the High Court under Article 227 of the Constitution is confined only to see whether an inferior court or tribunal has proceeded within the parameters of its jurisdiction. In the exercise of its jurisdiction under Article 227 of the Constitution, the High Court does not act as an appellate court or tribunal and it is not open to it to review or reassess the evidence upon which the inferior Court or tribunal has passed an order. The Trial Court had in the considered exercise of its jurisdiction allowed the amendment of the written statement under Order 6 Rule 17 of the Code of Civil Procedure. There was no reason for the High Court to interfere under Article 227 of the Constitution. Allowing the amendment would not amount to the withdrawal of an admission contained in the written statement (as submitted by the Respondent) since, the amendment sought to elaborate upon an existing defence. It would also be necessary to note that, it was on 21 st September, 2013 that an amendment of the plaint was allowed by the Trial Court, following which the Appellant had filed a written statement to the amended plaint incorporating its defence. The amendment would cause no prejudice to the Plaintiff. The impugned judgment and order is unsustainable. Appeal allowed. The order passed by the Trial Court allowing the amendment of the written statement is accordingly affirmed.

Relevant

Sadhna Lodh v. National Insurance Co.MANU/SC/0080/2003

Tags : Written Statement Amendment Validity

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