Judgments
Supreme Court
Tamil Nadu Dr. MGR Medical University Vs. SVS Educational and Social Trust
MANU/SC/1271/2018
12.11.2018
Education
When consent to affiliation is subject to approval from Central Government, request for continuance of provisional affiliation cannot be granted
The request of the First Respondent for continuance of provisional affiliation for admission of students in Bachelor of Homeopathy Medicine and Surgery (BHMS) degree course for the academic year 2016-2017 was rejected by the Appellant. In a Writ Petition filed by the First Respondent assailing the said order, the High Court directed the Appellant to permit the First Respondent to participate in the counselling for admission to Homeopathic Colleges for the academic year 2017-2018. The Division Bench of the High Court of Madras upheld the said interim order. Hence, present Appeal.
The First Respondent-University does not have the requisite approval from the Central Government as provided in Section 12A of the Homeopathy Central Council Act, 1973. As the consent to affiliation was granted subject to the approval from the Central Government for the period of one year, the request made by the First Respondent for continuance of provisional affiliation was rightly rejected by the Appellant.
As the First Respondent did not have provisional affiliation, there was no question of continuance of the provisional affiliation to the First Respondent. The First Respondent is not entitled for the relief that was granted by the High Court for admission of students to the first BHMS degree course for the academic year 2017-2018 as it has neither approval from the Central Government nor affiliation from the Appellant.
The Division Bench ought not to have granted the relief without deciding whether the First Respondent had the requisite approval from the Central Government to start a College. The order of the High Court is set aside and the appeal is allowed.
Tags : Provisional affiliation Continuation Grant
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High Court of Himachal Pradesh
Neer Vs. State of Himachal Pradesh
MANU/HP/1637/2018
05.11.2018
Narcotics
When the recovery is suspicious, non-production of seal is to be considered to hold the Accused innocent
The present appeal is maintained by the Appellant laying challenge to judgment passed by the trial Court, whereby the Accused was convicted for the commission of the offence punishable under Section 20 of the Narcotic Drugs & Psychotropic Substances Act, 1985 ("NDPS Act"). Question raised in present case is whether order of trial convicting Appellant is sustainable.
When independent witnesses were available, but not associated, even then, if the statement of official witnesses is confidence inspiring, conviction can be based upon their un-shattered testimony. Though, non-production of the seal is not a serious consequence, however, in the present case, when the recovery is suspicious, non-production of seal is to be considered to hold the Accused innocent.
The prosecution has failed to prove the guilt of the Accused beyond the shadow of reasonable doubt and that Accused was found in exclusive and conscious possession of 1 Kg. 600 grams of char as, as alleged. The statement of police witnesses is not confidence inspiring and are full of contradiction, at the same point of time, independent witnesses, which were abundantly available were not associated and seal was not produced in the Court, makes out a case to set aside the judgment of conviction and sentence passed by the learned Trial Court. Accordingly, the appeal is allowed and the judgment of the learned Trial Court is set aside.
Tags : Conviction Evidence Credibility
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High Court of Allahabad
Santosh Kumar Vs. State of U.P.
MANU/UP/4041/2018
02.11.2018
Criminal
In absence of fitness certificate referring mental fitness, no reliance can be placed upon dying declaration
The Appellant has filed present appeal from his conviction and sentence passed by Additional Session's Judge convicting the Appellant under Section 302 Indian Penal Code, 1860 (IPC) and awarding sentence of imprisonment for life with fine of Rs. 2,000, along with default stipulation. Issue raised in present case is whether the conviction of the Appellant solely basing upon the dying declaration is sustainable.
Constitution Bench of Supreme Court in Laxman v. State of Maharashtra, has held that the person who records a dying declaration must be satisfied that the deceased was in a fit state of mind. Where it is proved by the testimony of the Magistrate that the declarant was fit to make the statement even without examination by the doctor the declaration can be acted upon provided the Court ultimately holds the same to be voluntary and truthful. Further, in Paparambaka Rosamma Vs. State of A.P., it has been held that, certificate of fitness given by the doctor should specifically refer mental fitness. In the absence of it, no reliance can be placed upon dying declaration.
The dead body was in pugilistic attitude as such heat was so intense that her brain might have been cooked. Severe damage at least to the extent of blistering of the tongue and upper respiratory tract might have come. Thus, dying declaration is highly doubtful and no reliance can be placed on it. There is no other evidence on record as prosecution witnesses have been declared hostile by the prosecution itself. The conviction of the Appellant solely basing upon the dying declaration is not sufficient. The conviction and sentence of the Appellant is set aside. Appeal allowed
Relevant
Laxman v. State of Maharashtra, MANU/SC/0707/2002
: (2002) 6 SCC 710, Paparambaka Rosamma Vs. State of A.P., MANU/SC/0558/1999
: (1999) 7 SCC 695
Tags : Conviction Legality Dying declaration
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High Court of Bombay
Ashish Vs. State of Maharashtra and Ors.
MANU/MH/3030/2018
02.11.2018
Criminal
Inherent power has to be exercised in accordance with guidelines en-grafted
The Accused of Regular Criminal Case pending on the file of Judicial Magistrate First Class, has approached for quashment of First Information Report registered at Police Station and for termination of concerned criminal proceeding. Moreover the short question which falls for consideration is about competency of present Court to invoke inherent powers in terms of Section 482 of the Code of Criminal Procedure, 1973 at the stage when charge has been already framed by trial Court.
The plain reading of Section 482 of the CrPC nowhere restricts or puts limitation on the powers of this Court in any manner. The object of Section 482 of the CrPC is dual i.e., to prevent abuse of the process of any Court, or to secure the ends of justice. Further the non-obstante clause conveys that the inherent powers of this Court are unfettered meaning thereby has not been limited or restricted by any criteria. Inherent power is of wide plentitude with no statutory limitation but it has to be exercised in accordance with the guidelines en-grafted i.e. to secure the ends of justice and to prevent abuse of process of any Court. No doubt, it would depend on the facts and circumstances of each case and has no straight jacket formula or criteria. While quashing the proceedings, the Court must consider whether it would be unfair or contrary to the interest of justice to continue with the criminal proceedings in the given facts and circumstances.
In case at hand, the offence is about outraging modesty of a woman which is of personal nature. By no stretch of imagination, it can be said that it has far reaching societal impact. The parties have settled the matter. In the circumstances, present is a fit case where the Court should step in and exercise inherent powers for quashment of F.I.R. and consequential criminal proceedings. F.I.R. lodged at Police Station as well as terminate the criminal case pending in the Court of Judicial Magistrate First Class, Nagpur, quashed having effect of acquittal of Applicant/Accused. Application allowed.
Tags : Inherent powers Quashment FIR
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High Court of Bombay
Ravindra Sukhdev Ghadge Vs. Swati Ravindra Ghadge and Ors.
MANU/MH/3043/2018
02.11.2018
Family
If Court passes a decree having no jurisdiction over the matter, it would amount to nullity
In instant second appeal, learned counsel for the Appellant has raised issue of jurisdiction of the trial Court as well as the Appellate Court on the ground that, Sections 7 & 8 of the Family Courts Act, 1984/Act, ousts the jurisdiction of the Civil Court in respect of matrimonial dispute filed. Issue raised in present matter is whether the judgment and decree passed by the Civil Judge Senior Division, Aurangabad, and confirmed by District Judge, Aurangabad is nullity on account of exclusion of jurisdiction in matrimonial matters by Section 7 of the Act.
There is no factual dispute. The petition was filed in the court of Civil Judge Senior Division as the Petitioners were residing in Cidco and the marriage had taken place at Aurangabad. It is not disputed that, the residence of the Original Petitioners as well as place of marriage are within municipal limits of Aurangabad Municipal Corporation and the Family Court is having jurisdiction over the entire area of Aurangabad Municipal Corporation. In view of the establishment of the Family Court, the Civil Judge Senior Division, Aurangabad, had no jurisdiction to conduct the petition for grant of maintenance under the Hindu Adoptions and Maintenance Act, 1956.
In Dr. Jagmittar Sain Bhagat vs. Dir., Health Services, Haryana and Ors., it is laid down that, if the Court passes a decree having no jurisdiction over the matter, it would amount to nullity as the matter goes to the roots of the cause. Such an issue can be raised at any stage of the proceedings. The finding of a Court or Tribunal becomes irrelevant and unenforceable/inexecutable once the forum is found to have no jurisdiction. Similarly, if a Court/Tribunal inherently lacks jurisdiction, acquiescence of party equally should not be permitted to perpetuate and perpetrate, defeating the legislative animation. The Court cannot derive jurisdiction apart from the Statute. In such eventuality, the doctrine of waiver also does not apply.
The specific ouster of jurisdiction of the Courts in respect of area for which the Family court has been established under Section 8 of Act, shows that, the subject-wise jurisdiction of Civil Judge Senior Division., has been ousted and it is not a simple question of territorial jurisdiction. Therefore, the decisions rendered by the Courts having no subject-wise jurisdiction will be a nullity. As Section 8 of the Act has taken away the jurisdiction, the decisions rendered by the Civil Judges and District Courts are nullity. Therefore, the substantial question of law raised is answered in the affirmative.
Tags : Matrimonial dispute Jurisdiction Nullity
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High Court of Bombay
Sunil Balakrushna Telang Vs. State of Maharashtra and Ors.
MANU/MH/3020/2018
01.11.2018
Limitation
State Government had no jurisdiction and authority to convert a statutory appeal in a representation and issue directions
The Petitioner is the owner of plots carved out in a private layout within the municipal limits of Pimpri Chinchwad Municipal Corporation ('municipal corporation'). In present proceeding under Article 226 of the Constitution, the Petitioner is aggrieved by the decision of the Hon'ble Minister for Urban Development Department, Government of Maharashtra, as communicated by a letter dated 28th September, 2016 of the Under Secretary of Government of Maharashtra. By the impugned decision, the Hon'ble Minister while rejecting the statutory appeal as filed by Respondent No. 3 against the rejection of his development permission, converted the said appeal into a representation and has issued certain directions which has enabled the municipal corporation to reconsider the rejection of the development proposal of Respondent No. 3 and grant Respondent No. 3 a development permission.
The only question which falls for consideration is 'whether the Hon'ble Minister was justified in taking the decision as contained in the impugned communication dated 28 September 2016, when the statutory appeal of Sahyadri under Section 47 of the Maharashtra Regional And Town Planning Act, 1966 (MRTP Act) was itself dismissed being barred by limitation, and whether it was permissible for the Hon'ble Minister to treat the statutory appeal as a representation and pass orders thereon.
Section 47 of the MRTP Act provides for a remedy to a person who is aggrieved by an order which may be passed by the planning authority, either granting conditional development permission or refusing permission for development. Section 154 of the MRTP Act cannot be read to confer any jurisdiction/power on the State Government to convert its appellate jurisdiction under Section 47 of the MRTP Act by treating the appeal as a representation so as to pass an order, alien to Section 47 of the MRTP Act or any other orders which the State otherwise can legitimately pass under Section 154 of the MRTP Act.
The State Government has clearly exceeded jurisdiction vested in it as the Appellate Authority under Section 47 of the MRTP Act in taking the decision as contained in the impugned communication dated 28thSeptember 2016. State Government had no authority, power and/or jurisdiction, under Section 47 of the MRTP Act while dismissing Sahyadri's appeal to convert the same into a representation and make directions thereon. The impugned decision/communication therefore, cannot be sustained. Consequent action of the municipal corporation on the basis of the impugned decision of the State Government also cannot remain valid. Petition allowed.
Tags : Power Jurisdiction Legality
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