Judgments
Supreme Court
The State of Rajasthan Vs. Kanhaiya Lal
MANU/SC/0515/2019
10.04.2019
Criminal
Nature of weapon used and vital part of body where blow was struck are sufficient to prove intention of Accused to cause death
Present appeal arises from the judgment and Order of a Division Bench of the High Court passed in Criminal Appeal. The High Court, while allowing the appeal filed by the Respondent, convicted him under Section 304 Part I of the Indian Penal Code, 1860 (IPC) instead of Section 302 of the IPC. The State preferred present appeal against the said decision. Issue raised in present matter is applicability of Section 304 Part I of IPC.
In the case of Arun Raj, present Court observed and held that, there is no fixed Rule that, whenever a single blow is inflicted, Section 302 of IPC would not be attracted. It is observed by present Court that, nature of weapon used and vital part of the body where blow was struck, prove beyond reasonable doubt the intention of the Accused to cause death of deceased. Once these ingredients are proved, it is irrelevant whether there was a single blow struck or multiple blows.
The judgment of the High Court is manifestly perverse and is totally contrary to the evidence on record. As per PW15, Doctor, a fracture of 4 cm length was found in the parietal and occipital. He also stated that, said head injury was sufficient to cause death in the ordinary course of nature. Thus, the Accused used a deadly weapon-axe on the vital part of the body-head, which proved to be fatal.
A single blow on the vital part of the body like head and that too by deadly weapon-axe and used with force which proved to be fatal, was sufficient to hold that it was a case of murder within the definition of Section 300 of the IPC. Merely because the altercation might have taken place much earlier and not immediately prior to and/or at the time of commission of the offence, it cannot be inferred that, there was no intention on the part of the Accused to cause death of the deceased.
Therefore, the High Court has committed a grave error in converting/altering the conviction from Section 302 of IPC to Section 304 Part I of IPC. Thus, the judgment of the High Court is manifestly perverse and is totally contrary to the evidence on record. The impugned judgment of the High Court was set aside and the judgment of the trial Court convicting the Accused under Section 302 of IPC was restored. Appeal allowed.
Relevant
Arun Raj v. Union of India MANU/SC/0383/2010
Tags : Conviction Sentence Conversion Validity
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High Court of Himachal Pradesh
Tribhuwan Chand Vs. Union of India and Ors.
MANU/HP/0283/2019
10.04.2019
Service
Mere repeated representations will not revive cause of action and cannot be a valid ground for present Court to overlook delay
The Petitioner has approached present Court seeking a direction to consider and promote him from the Post of Inspector (GD) to Subedar Major and then as an Assistant Commandant with effect from the dates when his juniors were allegedly promoted. A further direction for correction in the seniority list and to place the Petitioner above his perceived juniors has also been sought.
The Petitioner joined ITBP on 27th January, 1988 as a Constable (GD) and then as Lance Naik with effect from 11th August, 1988. The Petitioner was promoted as Naik (GD) on 25th September, 1990 and then as Head Constable (GD) on 3rd March, 1996.
The case of the Respondents is that, it was only after the Petitioner qualified the prerequisite tests that he could be promoted. The Petitioner's case is that he has been representing repeatedly since the year 1990 onwards but no heed was paid to his representations. He then served a legal notice dated 7th January, 2018 before approaching this Court.
Settled seniority cannot be unsettled even if it is successfully demonstrated that some irregularity or illegality was committed at the time of finalization of the seniority. It is equally well settled that, Writ Court need not to exercise its discretionary jurisdiction in a case where the Petitioner is guilty of unexplained delay and laches in approaching the Court, especially when there were no social or financial impediments against seeking redressal of grievances.
The case in hand squarely falls within these exceptional clauses. Firstly, the Petitioner was placed above said Om Prakash way back in January, 1990 whereas the writ petition has been filed in the year 2018. This singular fact is sufficient to dissuade present Court from entertaining the claim on merits. Secondly, the Respondents have explained the facts and circumstances in which Inspector (GD) Om Prakash marched over the Petitioner. Thirdly, mere repeated representations by the Petitioner will not revive the cause of action and cannot be a valid ground for this Court to overlook the laches.
No positive mandamus can be issued. Nevertheless, Administrative Authorities, wherever are satisfied that some gross injustice has been done to an employee, may not be precluded from undoing the same merely because of delay in raising the voice. In a given case, there would not be an impediment either in law or in equity for an Administrative Authority to rectify the error, if any, committed by it in the past, provided that, the Authority is satisfied that such error was committed at its hands.
Since, no case of error has been made out by the Petitioner in the instant case, it is left to discretion of Respondent No. 2 or any other prescribed Authority to revisit the issue and see whether any injustice was done to the Petitioner in the past. It will be for the Authorities to satisfy themselves in this regard without any command from this Court. The writ petition is disposed of.
Tags : Promotion Entitlement Discretion
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High Court of Kerala
Frontline Polymers Private Limited Vs. Aloysious C.C.
MANU/KE/1064/2019
10.04.2019
Intellectual Property Rights
Prior publication of design is a valid defence, provided that use of design is not in breach of good faith against proprietor of design
In present matter, an interim order of injunction granted in a suit under the Designs Act, alleging piracy of a registered design, is under challenge by the Defendant. The product in respect of which the dispute has arisen between the parties is a storage water tank viz. "Hopper bottom water tank with inbuilt legs". According to the Plaintiff, he has obtained registration for the design. The contention of the Defendant is that, they have been using the said design and selling the products in the market with the said design since the year 2016.
The prior publication of the design is a valid defence, provided that the use of the design is not in breach of good faith against the proprietor of the design. According to the Defendant, they had been selling the product since the year 2016. The registration, Ext. B9 obtained by the plaintiff is only in 2018 and therefore, the defendant is protected by, prior publication of the design.
Ext. B8 is an advertisement given by the Defendant, relating to the product, in a magazine dated 20th September, 2016. Ext. B9 is the advertisement in another magazine in March 2017. Ext. B14 is the photograph taken on 16th August, 2016 in connection with the inaugural ceremony of the product. The presence of the plaintiff in the said photograph is not disputed. The Plaintiff does not have any explanation for the said flagging of ceremony held by the Defendant and his presence there. Ext. Bl5 is the certification from the central Board of Film Certification regarding the advertisement of the product in question. All the documents relate to the product in question and is much prior to the registration by the Plaintiff.
There is no circumstance to indicate that there was any understanding between the parties whereby the Defendant agreed to refrain from using or publishing the design. It cannot be held that, there is any breach of good faith against the user or publishing of the design.
The learned counsel for the Defendant undertakes that, the Defendant shall maintain accounts regarding sale of the product till the disposal of the suit, to protect the interests of the plaintiff's in so far as it may relate to damages or compensation. Prima facie case, balance of convenience and irreparable injury are all in favour of the Defendant. The order of the court below is liable to be interfered. The impugned order will stand set aside and the injunction vacated. Appeal allowed.
Tags : Design Use Injunction Validity
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High Court of Delhi
Prashant Kumar Umrao Vs. Govt. of NCT of Delhi
MANU/DE/1253/2019
09.04.2019
Constitution
Whenever House resumes after it is adjourned sine die, its resumption does not amount to commencement of session
The Petitioner has filed the present petition praying that, present Court may issue writ of Mandamus or any other appropriate writ, order or direction, thereby directing the Lieutenant Governor of Delhi or any other competent authority to declare the sixth part of the Fourth Session of the Sixth Legislative Assembly of National capital territory of Delhi to be illegal, invalid with all its consequential effects.
The fifth part of the fourth session of the Delhi Legislative Assembly was adjourned sine die on 15th November, 2016. The session was resumed on 17th January, 2017 (the sixth part of the fourth session). The Notification for the same was put up on the website of the Delhi Legislative Assembly on 10th January, 2017. The Petitioner claims that, the said session is illegal in terms of the Government of National Capital Territory of Delhi Act, 1991, as the first session of each year is required to commence with the address by the Lt. Governor.
Section 10(1) of the Act, 1991 provides that, at the commencement of the first session after each general election to the Legislative Assembly and at the commencement of the first session of each year, the Lieutenant Government shall address the Legislative Assembly and inform it of the causes of its summons." The Petitioner contends that, the session that commenced on 17th January, 2017 ought to be considered as the first session of the year 2017, as the same could not be left at the whims and fancies of the Speaker.
The aforesaid issue is squarely covered by the decision of the Constitution Bench of the Supreme Court in Ramdas Athawale (5) v. Union of India and Ors., wherein the Court had explained the distinction between adjournment and prorogation, in the context of Article 87(1) of the Constitution of India, which is pari materia to the provisions of Section 10(1) of the Act, 1991. The Supreme Court had expressly held that, whenever the House resumes after it is adjourned sine die, its resumption for the purpose of continuing its business does not amount to the commencement of the session.
Present Court is also of the view that, the present petition also warrants the imposition of costs. The Petitioner has unnecessarily sought to raise a controversy, where none exists. Such frivolous litigation ought to be discouraged. Accordingly, the present petition is dismissed with costs.
Relevant
Ramdas Athawale vs. Union of India (UOI) and Ors. MANU/SC/0212/2010
Tags : Legislative Assembly Session Resumption
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High Court of Himachal Pradesh
Kewal Singh and Ors. Vs. State of Himachal Pradesh and Ors.
MANU/HP/0286/2019
09.04.2019
Criminal
FIR or complaint can be quashed even in non-compoundable offences, if Court is satisfied that parties have settled disputes amicably
The present petition is maintained by the Petitioners under Section 482 of the Code of Criminal Procedure, 1973 (CrPC) for quashing of FIR under Sections 451, 447, 427, 342, 336, 147, 149 and 506 of the Indian Penal Code, 1860 (IPC) registered at Police Station. The Petitioners has argued that, as the parties have compromised the matter, vide Compromise Deed, dated 12th September, 2018, no purpose will be served by keeping the proceedings against the Petitioners and the FIR/Challan, may be quashed and set aside.
The Hon'ble Supreme Court in Preeti Gupta and another vs. State of Jharkhand and another, have held that, the ultimate object of justice is to find out the truth and punish the guilty and protect the innocent. The tendency of implicating the husband and all his immediate relations is also not uncommon. At times, even after the conclusion of the criminal trial, it is difficult to ascertain the real truth. Long and protracted criminal trials lead to rancour, acrimony and bitterness in the relationship amongst the parties. The criminal trials lead to immense sufferings for all concerned.
Further, the Hon'ble Supreme Court in Jitendra Raghuvanshi and others vs. Babita Raghuvanshi and another, have held that criminal proceedings or FIR or complaint can be quashed under Section 482 of CrPC in appropriate cases in order to meet ends of justice. Even in non-compoundable offences pertaining to matrimonial disputes, if Court is satisfied that parties have settled the disputes amicably and without any pressure, then for purpose of securing ends of justice, FIR or complaint or subsequent criminal proceedings in respect of offences can be quashed.
Thus, the interest of justice will be met, in case, the proceedings are quashed, as the parties have already compromised the matter, as per compromise deed placed on record. Accordingly F.I.R registered at Police Station is ordered to be quashed and consequently, the proceedings pending before the learned Magistrate arising out of the aforesaid FIR, are also ordered to be quashed. The petition is accordingly disposed.
Relevant
Preeti Gupta and Anr. vs. State of Jharkhand and Anr. MANU/SC/0592/2010
, Jitendra Raghuvanshi and Ors. vs. Babita Raghuvanshi and Anr. MANU/SC/0239/2013
Tags : Compromise deed FIR Quashing of
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Railway Claims Tribunal
Sunadari Hembram Vs. Union of India
MANU/RL/0060/2019
09.04.2019
Civil
Mere presence of a body on railway premises will not be conclusive to hold that, injured or deceased was a bona fide passenger for compensation claim
The Applicant has filed present claim petition under Section 16 of the Railway Claims Tribunal Act, 1987 seeking compensation for an amount of Rs. 4,00,000. The averments made by the Applicant are that on 27th September, 2010, her son, since deceased, boarded local train for his journey from Katwa to Bankapi Railway Stations. It is pleaded that, when the said train was entering before Bankapi Railway Station, her son, accidentally fell down from the said running train and died. It is further pleaded that over the incident, a Police Case has been registered.
Admittedly in the instant case, there is no direct evidence. Further, it is the well settled principle of law that, where there is no direct evidence, the circumstantial evidence should be reckoned to come to the reasonable conclusion. In the FIR which is the most prima facie documents, it has clearly mentioned that victim died run over by train. In view of nature of the case, it is observed that for want of sufficient documentary evidence, the Tribunal is helpless to consider the fact that, the victim actually fell down from any train which might have attracted the provision of Section 123(c)(2) of the Railways Act, 1989.
Further, in regard to the loss of alleged ticket, the Tribunal observes that, in the instant case the applicant has not been able to produce sufficient proof to establish that the cause of death of the victim reasonably attracts the provision laid down under Section 123(c)(2) of the Railways Act.
Further, in the case of Union of India vs. Rina Devi wherein the Hon'ble Apex Court has observed that, mere presence of a body on the railway premises will not be conclusive to hold that injured or deceased was a bona fide passenger for which claim for compensation could be maintained. However, mere absence of ticket with such injured or deceased will not negative the claim that he was a bona fide passenger. Initial burden will be on the claimant which can be discharged by filing an affidavit of the relevant facts and burden will then shift on the railway sand the issue can be decided on the facts shown or the attending circumstances.
Thus, in view of the above facts, evidences, circumstances and documents available in the record, the Tribunal observes that since the applicant has miserably failed to prove that her son died due to a reason which may fall within the ambit of untoward incident', as per provision of Section 123(c)(2) of the Railways Act, and that the victim was a bona fide passenger on the date of the alleged incident, the Tribunal is helpless to consider the Issues in favour of the applicant. Since, the applicant has failed to establish her case, she is not entitled to get any compensation. The instant claim application is dismissed.
Tags : Cause of death Proof Compensation Entitlement
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