FIRST LAW

Academic Nature  - Key Answer - When there are conflicting views, then the court must bow down to the opinion of the experts. Judges are not and cannot be experts in all fields and, therefore, they must exercise great restraint and should not overstep their jurisdiction to upset the opinion of the experts.  Uttar Pradesh Public Service Commission v. Rahul Singh, AIR 2018 SC 2861 : JT 2018 (6) SC 102 : 2018 (8) SCALE 25 : (2018) 7 SCC 254   C.A. No. 5838 of 2018 14-06-2018

1. Civil P.C. 1908 - S.47 - Questions to be determined by the Court executing decree - All questions relating to facts and law which have been raised or could have been raised and decided during trial, appeal or revision would not be reopened in the execution proceedings;  Anandbhai Prahladbhai Lokapur v. Veenaben Anandbhai Lokapur, 25-06-2018 F.A. No. 1687 of 2018

Academic Nature - Key Answer - When there are conflicting views, then the court must bow down to the opinion of the experts. Judges are not and cannot be experts in all fields and, therefore, they must exercise great restraint and should not overstep their jurisdiction to upset the opinion of the experts. Uttar Pradesh Public Service Commission v. Rahul Singh, AIR 2018 SC 2861 : JT 2018 (6) SC 102 : 2018 (8) SCALE 25 : (2018) 7 SCC 254 C.A. No. 5838 of 2018 14-06-2018

Specific Relief Act, 1963 - S.20 - Discretion as to decreeing specific performance - When a Court considers a suit for specific performance of a contract for sale of immovable property, once it is found that the agreement is genuine and the plaintiff had pleaded and proved his readiness and willingness to perform his part of the contract, it is upon the Court to further consider whether the discretion to grant specific performance has to be exercised in terms of S.20 of the Specific Relief Act.

1.  Farooq Ahmad Dar v. State  [ Jammu & Kashmir High Court,  u/s 561-A No.176 of 2017 ] No official can be booked for the commission of criminal misconduct on the allegation of any illegality committed in absence of any concrete material showing the deal of bribe or embezzlement. 

The non-joining of public witnesses is fatal to the prosecution case, particularly when no reasonable explanation has been given by prosecution for not joining of public witnesses and no efforts seem to have been made for joining independent witnesses.

Lok Adalat do not have any power of adjudicatory function and if it is found that the offence is not compoundable then it cannot have access on the merits to give any finding.

Penal Code, 1860 - Ss. 294(b) - Police Act, 2011 ( Kerala)   -  S.119(b) -  taking photographs or records or videos of propagate them at any place in a manner affecting reasonable privacy of a woman - What is meant by the reasonable privacy of a woman ? I n the absence of a clear definition as to what is meant by a transgression into the privacy of a person, the conduct of the petitioner cannot ex post facto be brought within the campus of offending a statutory provision.

Criminal Trial - Discharge - Summons Case - If the word 'discharge' is used in a summons case, it cannot be said to be illegal - The court may use the word 'release' or 'discharge' when it finds that the proceedings cannot be continued in a summons case and consequently it drops the proceedings.

Protection of Children from Sexual Offences Act, 2012 -  S. 29 -   Presumption -  It would come into operation only when the prosecution is first able to establish facts that would form the foundation.

W hen the applications are filed to restore the same, the Courts are expected to look into the matter not only in the technical angle but also it needs blending of humanity looking to the nature of the case for which the restoration is sought. Otherwise the Court would start emitting danger signals.

The State has a right to assess the suitability of a candidate for appointment with or without interview. The State having exercised the jurisdiction in terms of Madhya Pradesh Educational Service (Collegiate Branch) Recruitment Rules, 1990, it cannot be said that power of relaxation to do away with the interview is illegal.

Evidence Law - If there is any inconsistency in the evidence of the eye witnesses and the medical evidence, the Court has to believe the evidence of the eye witnesses. In other words, ocular evidence prevail over the medical evidence.

Criminal Procedure Code, 1973 - S.161 - Panchnama of statement of a witness recorded by the I.O. (not a statement u/S 161 CrPC), is not admissible in evidence - Accused cannot be convicted on the basis of such document when witness has turned hostile.

Evidence Law - Reasonable Doubt - An ingenious mind can question anything and, on the other hand, there is nothing which it cannot convince. When you consider the facts, you have a reasonable doubt as to whether the matter is proved or whether it is not a reasonable doubt in this sense. The reasonableness of a doubt must be a practical one and not on an abstract theoretical hypothesis. Reasonableness is a virtue that forms as a mean between the excessive caution and excessive indifference to a doubt.

Article 21 of the Constitution of India proscribes deprivation, of the life and liberty of every Indian citizen, save and except by "procedure established by law". The law, in this country, permits deprivation of the liberty of the citizen, by her, or his, incarceration, during trial, as well as after its conclusion, but for different reasons, and to achieve different purposes. Incarceration, after trial and consequent on the accused being found guilty, is punitive in nature. Punishment, by plain logic, has necessarily to follow a determination of guilt, accompanying conviction, and can never be anterior thereto. Incarceration during trial, therefore, can never be punitive in nature and is never intended to operate as a punishment, as was rightly held in H. B. Chaturvedi vs C.B.I., 171 (2010) DLT 223 .

The judgement of Dalveer Bhandari, J, in Siddharam Satlingappa Mhatre vs State of Maharashtra, (2011) 1 SCC 694 , speaking for himself and K. S. Radhakrishnan, J., which is regarded as a watershed decision in "anticipatory bail jurisprudence", sets out the following ten definitive tests, to guide courts while deciding applications for bail in apprehension of arrest, under Section 438 of the Cr.P.C.

The existing system can be drastically changed or improved if the following steps are taken by the trial courts while dealing with the civil trials:

Code of Civil Procedure, 1908 -  Order XI Rule 1 -  Interrogatories help in shortening trial. The court needs to consider whether the matters as sought for are relevant and if they relate to the matter in question in the suit.

Protection of Women from Domestic Violence Act, 2005 - the magistrate passing the ex parte residence orders under section 19 of the Domestic Violence Act is equally competent under section 23 (1) of the Act to enforce its order vacating the ex parte order and necessary directions can be issued to the jurisdictional SHO to enforce its order.

Motor Vehicles Act, 1988 -  Ss. 128 &129 -  No motor motorcyclists/ Scooterists shall be permitted to ply the motor cycle/scooter without wearing helmet of I.S.I mark.

Penal Code, 1860 - Ss. 405, 406 & 420 -  Criminal P.C. 1973 -  Ss. 397, 401 & 482 - Q uashment of Complaint -  The criminal proceedings manifestly attended with malafide and/or where the proceeding is maliciously instituted with ulterior motive for wreaking vengeance on the accused and turning a civil litigation into a criminal litigation, deserves to be quashed. 

Criminal P.C. 1973 -  S.374 - Penal Code, 1860 - S. 302 -  Evidence Act, 1872 -  S. 32 -  Dying Declaration -  A dmissibility of -  One of the principles, which is always kept in mind, while examining the dying declaration of the deceased is that "a man will not meet his Maker with a lie in his mouth".

Criminal P.C. 1973 - S. 228 -  Framing of Charge -  While framing charge, the trial Court in exercise of the power under section 228 Cr.P.C., has to form an opinion judicially for its  prima facie  satisfaction on the basis of the material available on record that there is a ground for  presuming  that the accused has committed an offence and is not expected to critically evaluate the material/evidence placed on record by the prosecution.

Representation of the People Act, 1951 - Ss. 83 & 123(4) - Corrupt Practice -  To constitute any 'statement of fact' as corrupt practice under section 123(4) of the R.P.Act, the same must reflect on personal character or conduct of the candidate.

1. Shafhi Mohammad v. State of H.P., (2018) 5 SCC 311  Criminal Trial - Investigation - Videography - Importance of capturing crucial evidence in credible manner - Action plan and phased manner of implementation - Directions issued.  2. State of T.N. v. Kamala, (2018) 5 SCC 322  Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 - S. 3(1)(ii) - Preventive Detention - COFEPOSA does not require detaining authority to specify period for which a detenu is required to be detained - Not rendered invalid/illegal in absence of such specification; JT 2018 (4) SC 164  3. Seema Upadhyay v. Union of India, (2018) 5 SCC 325  Constitution of India, 1950 - Art. 32 - Public Interest Litigation (PIL) - Maintainability - CBI investigation - Oil Adulteration by mafias - Transfer of cash subsidy to intended beneficiaries of kerosene oil - Aadhaar card or through PDS or other credible mechanism - Petitioner was given liberty to approac...

Public Service Commission - K ey Answers -  When there are conflicting views, then the court must bow down to the opinion of the experts. Judges are not and cannot be experts in all fields and, therefore, they must exercise great restraint and should not overstep their jurisdiction to upset the opinion of the experts.

Service Law - Resignation from service made by a person can be withdrawn before its acceptance by the competent authority and before it takes effect.

While fixing an interim maintenance court has to take a prima facie view of the matter and need not to critically examine the respective claims of the parties regarding their respective incomes and assets because for deciding the same the evidence would be required. But, at the same time, an aggrieved person cannot be rendered to lead a life of a destitute till completion of trial.  It is also pertinent to note that as per the dictionary meaning of the word 'maintenance', it includes all such means of living as would enable one to live in the degree of comfort, suitable and becoming to his situation of life. It is said to include anything requisite to housing, feeding, clothing, health, proper recreation, vacation, traveling expenses or other proper cognate purposes.  For computing the maintenance, the following test have been laid down by Hon'ble Apex Court in Jasbir Kaur Sehgal vs. District Judge, Dehradun & Ors. 1997 (7) SCC 7 , wherein it has been ob...

Free thought and independent action has its significance in the advancement of human communities; but the pitfalls of life cannot be ignored and the role of parents in guiding young minds; though having attained the legal age of majority cannot be discounted. We as a society err in confusing maturity with majority.

1. Rangappa v. Mohan, AIR 2010 SC 1898  Negotiable Instruments Act, 1881 - Section 138 - Existence of legally recoverable debt or liability - Is matter of presumption u/s 139.  2. Narinder Kumar v. Harnam Singh, 2000 Cri.L.J. 257 When no subsisting debt or other liability is found to have been established which the accused was legally bound discharge or was legally enforceable debt or other liability not it is proved that the cheque was issued with a view to such debt/liability. The accused thus, is entitled for acquittal solely on this ground.  3. John K. Abraham v. Simon C. Abraham, Laws (SC) 2013 - 12 - 4  The complainant not sure as to who wrote cheque nor aware as to when and where existing transaction took place for which cheque was issued by the accused - Conviction of accused is not proper.  4. Binod Kumar Lal v. State of Jharkhand, reported in Laws (JHAR) 2008 - 3 - 5  The Hon'ble Court had upheld the view taken by the learned low...

Protection of Children from Sexual Offences Act, 2012 - S.29 -  Criminal Procedure Code, 1973 -  S.438 -  A nticipatory Bail - Presumption as to certain offences -  While considering the bail application the court has to taken into consideration the effect of the presumption envisaged under Section 29 of the Act.

Constitution of India, 1950 - Art.  19(1)(a) -  Police Act, 1960 ( Kerala)   -  S.57 -  'man missing' -   writ of habeas corpus -  right of a person to live as a transgender -  D etenu has undoubtedly the right to wander about or associate with likeminded people and cannot be compelled to be at his parental home.

Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 - S. 14 -  Chief Judicial Magistrate has no jurisdiction to grant time for payment of the debt due to the secured creditor  in a proceedings under Section 14 of the Act.

Negotiable Instruments Act, 1881 -  S. 138 -  Legal Services Authorities Act, 1987 -  S. 21  (2)   -  In case of settlement of any matter relating to Section 138 of the Negotiable Instruments Act, the Lok Adalath must ensure that before passing the award, the entire amount settled between the parties is paid.

Administrative Law State must evolve a mechanism to set at rest all interdepartmental controversies at the level of the Government and such matters should not be carried to a court of law for resolution of the controversy; Ladakh Road Lines v. State of J&K [Jammu & Kashmir High Court, 06-06-2018]

The principles of Section 304-B of I.P.C. and Section 113-B of the Evidence Act are summerised by Supreme Court in the case of Kashmir Kaur Vs. State of Punja, AIR 2013 SC 1039 , as under:-

So far as the offence punishable under Section 149 of IPC making a member of unlawful assembly guilty of offence committed in prosecution of common object is concerned, three ingredients are required to be satisfied - 

Constitution  of India, 1950  -  Ss.  301 & 14 -  Surcharge on Taxes Act, 1957 ( Kerala)  - S.  3  (1A) -  If the object of the legislation is augmentation of revenue, a classification of the dealers based on the criterion viz., whether they import goods into the State is  per se  unjustifiable and unintelligible - the impugned levy is discriminatory and violative of Article 301 read with clause (a) of Article 304 as also Article 14 of the Constitution.

Law summarized on Electronic Evidence Summation of the law laid down by the Apex Court in respect of admissibility of electronic evidence : 

Juvenile Justice (Care and Protection of Children) Act, 2015 -  Code of Criminal Procedure, 1973 -  Section 438 -  Held,  an application for anticipatory bail under Section 438 of the Code at the instance of a child in conflict with law is maintainable before the High Court or the Court of Session.

1. Amol Mahadeo Mandale v. State of Maharashtra [Bombay High Court] Evidence Act, 1872 - Ss. 27 & 65B - Penal Code, 1860 - Ss. 120B, 147, 148, 149, 302 & 506B - Electronic Evidence - CCTV footages from Hard Disk, CD and DVD - Significant aspects to be noted in respect of electronic evidence produced - Identification of Accused - Unlawful Assembly - Criminal Conspiracy - Chain of the facts and circumstances established.  http://bit.ly/2JlFAwX

Consumer Protection Act, 1986 -  Rule 14(1)(b) - Civil P.C. 1908 -  O. 1 R. 10(4) -  Merely because the, plaintiff does not choose to implead a person is not sufficient for rejection of an application for being impleaded.  

Civil P.C. 1908 - O. 6 R. 17 -  Amendment of pleadings - I nconsistent plea can also be raised by the defendants in the written statement although the same may not be permissible in the case of plaint.

Evidence Act, 1872 - Ss. 27 & 65B - Penal Code, 1860 - Ss.  120B,  147, 148,   149,  302 & 506B -  Electronic Evidence -  CCTV footages from Hard Disk, CD and DVD -  Significant aspects to be noted in respect of electronic evidence produced -  I dentification of Accused -  U nlawful Assembly - Criminal Conspiracy  -  Chain of the facts and circumstances established.

Passport Act, 1967 -  S. 10(3)(e) -  Criminal P.C. 1973 - S. 102 - Power of police officer to seize certain property - P ower of impounding of Passport are vested with the Passport Authority.

Consumer Protection Act, 1986 -  S. 17 - D ispute of housing construction -  I ntending purchaser against the developer / builder -  allegation of deficiency in service.

1. B. Sailesh Saxena v. Union of India, Andhra High Court Constitution of India, 1950 - Arts. 14 & 19(1)(g) - Tender - Work Tender - Qualification - Manufacture, Supply and Laying of Power Cables in the Power Transmission and Distribution Industry - Qualification Requirement of Past Experience of Atleast 245 kms - Whether such eligibility criteria was arbitrary and in violation.

Headload Workers Act 1978 ( Kerala) - Ss.  2(m)  Explanation-II   &  9A -  “headload worker” -  Engaging the services of headload workers -  stacking of articles which are delicate or sophisticated - Mobile phones would, undoubtedly, come within that exception of delicate and sophisticated article and cannot be loaded and unloaded by persons who are not trained and skilled to do such job with due diligence.

Divorce - The act of sodomy, forcible sexual intercourse and adoption of unnatural means which are forced upon the other spouse and result for unbearable pain to the extent that one is forced to stay away would certainly be a ground to seek separation or decree of divorce.

Constitution of India, 1950 -  Article 226 -  Writ of Habeas Corpus - L ive-in relationship has become rampant in our society and such living partners cannot be separated by the issue of a writ of habeas corpus provided they are major.