FIRST LAW

Preventive detention involves detaining of a person without trial aiming at to prevent him from committing certain types of offences. But such detention cannot be made a substitute for ordinary law and absolve investigating authorities of their normal functions of investigating crimes, which detenu may have committed. After all, preventive detention cannot be used as an instrument to keep a person in perpetual custody without trial.

Food Safety Food Safety and Standards Act, 2006 - What is Purpose of AGMARK and FSSAI ?

Penal Code - S.376 - Rape -  There should be sterling quality of statement of victim for basing conviction on her sole testimony.

1. Ramla v. National Insurance Co. Ltd. There is no restriction that the Court cannot award compensation exceeding the claimed amount, since the function of the Tribunal or Court under Section 168 of the Motor Vehicles Act, 1988 is to award “just compensation”. The Motor Vehicles Act is a beneficial and welfare legislation. A “just compensation” is one which is reasonable on the basis of evidence produced on record. It cannot be said to have become time­barred. Further, there is no need for a new cause of action to claim an enhanced amount. The Courts are duty bound to award just compensation.

Abkari Act - Section 55 (1) - Insofar as the jail sentence is concerned, it may vary and extend up to 10 years depending upon the facts of each case, but insofar as the fine amount is concerned, the Court has to impose the minimum amount of Rs. one lakh. However, the Court has discretion to impose fine more than Rs. one lakh depending upon the facts of each case. Santosh @ Santosh Kumar v. State of Kerala, JT 2018 (11) SC 237 : 2018 (14) Scale 804 Crl.A. No. 1409 of 2018 16-11-2018 Administration of Evacuee Property Act, 1950 - Section 10(2)(o) - Displaced Persons (Compensation and Rehabilitation) Act, 1954 - Validity of the Sale Certificate. Mahendra Pratap Dubey v. Managing Officer, Evacuee Property, JT 2018 (11) SC 241 : 2018 (14) Scale 785 C.A. No. 6384 of 2010 16-11-2018 Advocates Act, 1961 - Sections 4, 10B, 15 & 49 - Bar Council of India Rules - Chapter I of Part II -Rule 2, 3 & 7 - For holding election of a member of Bar Council of India to be elected by State Bar C...

Casual Labourers (Grant of Temporary Status and Regularisation) Scheme 1993 -  theory of “inequality of bargaining power”.

Criminal Procedure -  Section 94 - Summons to produce document or other thing - b efore passing any order under Section 94 Cr.P.C., the Court is not obliged to hear the accused person.

Code of Criminal Procedure  - S. 197 -  Prosecution of Judges and public servants - it was not and cannot be a part of the official duty of petitioner to commit offences under section 407/409/420/120-B RPC with regard to misappropriation of Government cements meant for construction of quarters of ITBP, after hatching criminal conspiracy with others accused.

Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 - Sections 14 & 17(4A) - the observations as made in the order impugned after paragraph 11 had been rather unnecessary and the learned Single Judge, with respect, has been in error in issuing generalised directions and that too, to the extent that the borrowers have a right to be heard in the proceedings under Section 14 of the SARFAESI Act.

Motor Vehicles Act, 1988  - S.168 - There is no restriction that the Court cannot award compensation exceeding the claimed amount, since the function of the Tribunal or Court under the Act is to award “just compensation”. The Motor Vehicles Act is a beneficial and welfare legislation. A “just compensation” is one which is reasonable on the basis of evidence produced on record. It cannot be said to have become time­barred. Further, there is no need for a new cause of action to claim an enhanced amount. The Courts are duty bound to award just compensation.  Ramla v. National Insurance Company Limited, JT 2018 (11) SC 507   C.A. No. 11495 of 2018 30-11-2018

Indian Succession Act, 1925 - Ss. 63 & 68 - In this case the only attesting witness DW3’s evidence does not inspire confidence in the mind of the Court and more so it creates suspicion in the mind of the Court with regard to execution and genuineness of the Will. Coupled with this the evidence of defendant Jarnail Singh created all the more cloud on the execution of Will. Jarnail Singh deposed that in lieu of services rendered by him Jagan Nath executed the Will. But the cross examination of Jarnail Singh reveals that he was in Army from the year 1960-1979, whereas the Will was executed in the year 1970. In view of the same it appears highly improbable that Jarnail Singh had an opportunity to render any service to Jagan Nath. Apart from Jarnail Singh none of the other family members entered into the witness box and gave statement in support of services rendered by them. Moreover evidence reveals that Jagan Nath was a Sarpanch of the village and owned 12 Killas of land. Hence, it i...

Anti-Sikh Riots of 1984 -  It is indeed a matter of lament that there has been no meaningful thought spared till date to usher in reforms in the judicial process to effectively deal with the cases of communal riots which are engineered, more often than not, by those who have clout or influence– of various kind.

Service Law - Once the allowances and other benefits and facilities are allowed to teachers or any other employee, it cannot be withdrawn or reduced. Therefore, the question of recovery which was adopted by the Government goes against the principle of natural justice of law.

1. Ashwani Kumar v. State of Punjab Home Department Penal Code, 1860 – Ss. 302 r/w. 34 - Murder - Plea of Alibi - Concurrent Findings - Murdered lady was the wife of the first accused - Second accused claimed that she was innocent and was not present at the time of the alleged occurrence - She has not discharged her burden to show that she was elsewhere - On the other hand, there is evidence of the police officials that after committing the crime, both accused came out and proclaimed that they have accomplished what they wanted - There is no motive for the police officials to falsely implicate the accused - No reason to interfere - Appeal dismissed.

Penal Code, 1860 – Ss. 302 r/w. 34 - Murder - Plea of Alibi - Concurrent Findings -  murdered lady was the wife of the first accused - second accused claimed that she was innocent and was not present at the time of the alleged occurrence - She has not discharged her burden to show that she was elsewhere - On the other hand, there is evidence of the police officials that after committing the crime, both accused came out and proclaimed that they have accomplished what they wanted -  there is no motive for the police officials to falsely implicate the accused - no reason to interfere - appeal dismissed.

Criminal P.C. 1973 – S. 311 - Power to summon material witness, or examine person present  Purpose of - T rial Court adopted rather a hyper technical view in rejecting the application - Order is set aside.

Criminal Procedure - FIR - Delay - Even a long delay can be condoned if the witness has no motive for falsely implicating the accused.

1. Bangalore International Airport Area Planning Authority v. Birla Suprer Bulk Terminal (Now a Unit of Ultra Tech Cement Limited Acts Karnataka Town and Country Planning (KTCP) Act, 1961 Karnataka Industrial Areas Development (KIAD) Act, 1966 Interpretation of Statues - Rule of interpretation says that a statute is best interpreted when we know why it was enacted, which can be seen from the preamble of an Act.

Penal Code, 1860 - S.316 – Causing death of quick unborn child by act amounting to culpable homicide - An offence u/s 316 is made out when any act committed by a person causes death of a quick unborn child. The quickening of an unborn child takes place when the foetus starts movement and the mother will be in a position to feel the movements of the foetus.

1. Ahmed Abdulla Ahmed Al Ghurair (through Their Power Of Attorney Holder Mr. Bartholomew Kamya v. Star Health And Allied Insurance Company Limited Companies Act, 2013 - Section 89 (2) - Declaration in respect of beneficial interest in any share.

Penal Code, 1860 - Ss. 342 & 302 - Even though the accused had committed the heinous offence of brutally assaulting his father with a wooden stick, there is no evidence on record, direct or circumstantial, to attribute the accused with the intention of causing his father's death. Hence, the accused cannot be found guilty of the offence of murder under Section 300 IPC and on the other hand the accused can be found guilty of only the offence under Section Part II of Section 304 IPC.

Narcotics Drugs and Psychotropic Substances Act, 1985 - Section 21 (c) -  Public Witnesses - the basis, therefor, is that public witnesses rarely prefer to be embroiled in a criminal investigation. If, however, the case of the prosecution is that such “co-operative” public witnesses were available, and that they had been invited to, and involved in, the investigations, the failure, on the part of the prosecution, to produce them as witnesses, necessarily dents its case, and dents it badly.

Gavin M. Mylliem v. State of Meghalaya Meghalaya Installation, Regulation, Maintenance and Operation of Weighbridge Rules, 2009 - Rule 14 - Existing Weighbridges to comply with provision of these Rules.

Drugs and Cosmetics Act, 1940 – S. 25 - Reports of Government Analysts -  There is no question of considering the shelf life of the drug when prima facie it appears that the petitioners have failed to notify their intention to adduce evidence in controversion of the report within 28 days in terms of the provisions of Subsection (3) of Section 25 of the Act of 1940.

Code of Criminal Procedure, 1973 - Sections 125 & 482 - Family Courts Act, 1984 - Sections 7, 8, 10, 19 & 20 - Jurisdiction - Appeal -  the area covered by the Family Courts Act, is the area properly demarcated and only to that extent, there would not be applicability of the Code.

1. Uttar Pradesh Public Service Commission v. Surendra Kumar When recommendations were made for substantive number of posts on 12.08.2010, we are of the view that period of one year for operating wait-list is to be computed from 12.08.2010 but not from the last recommendation made for one post, vide letter dated 28.08.2012. Case Number : C.A. No. 11149 of 2018 22-11-2018 Petitioner's Advocate : Rajiv Yadav Bench : Hon'ble Mr. Justice Uday Umesh Lalit, Hon'ble Mr. Justice R. Subhash Reddy Judgment By : Hon'ble Mr. Justice Uday Umesh Lalit 2. M. C. Mehta v. Union of India If a mob goads an elected MP to commit a far more serious offence, would it mean that the elected representative would act on the instructions of the mob and commit the offence? A large number of such situations can arise on a day to day basis and it is disconcerting to note that an elected member of a responsible political party can succumb to pressure from a mob rather than requi...

1. Ganpat Prasad Mehta v. State of Bihar [Patna High Court] Criminal Procedure Code, 1973 - S. 173 - Irrespective of finding recorded by the Investigating Officer submitted before the court in accordance with Section 173 of the CrPC, the cognizance taking magistrate not at all is under compulsion to accept the same rather, the magistrate has got an option available (a) to accept the same, (b) to differ therefrom, (c) to direct further investigation.

The courts while appreciating the evidence in criminal cases have to see the degree of proof is maximum than that of civil case. The evidence produced by prosecution should be legally admissible. If there comes the slightest doubt regarding the involvement of accused in commission of crime as alleged by prosecution, the Court should not go on convicting the accused.

Criminal Procedure Code, 1973 - S. 173 - I rrespective of finding recorded by the Investigating Officer submitted before the court in accordance with Section 173 of the CrPC, the cognizance taking magistrate not at all is under compulsion to accept the same rather, the magistrate has got an option available (a) to accept the same, (b) to differ therefrom, (c) to direct further investigation.

Rent Law - Mere fact that the tenant continues in possession and rent is accepted and the suit is not instituted are insufficient circumstances for inferring an intention to create a new tenancy after expiration of the first.

Evidence Act, 1872 - S. 27 - Only the recovery of weapon of commission of offence would be taken to be admissible as a discovered fact pursuant to the disclosure made by the accused but not his confessional statement that he had murdered the deceased by the said weapon.

The Supreme Court of India in Atul Tripathi v. State of Uttar Pradesh & Ors., reported in (2014) 9 SCC 177 , where the legal position has been summed up at paragraph 15, which reads as follows :- 

Narcotic Drugs and Psychotropic Substances Act, 1985 - Anti Social Activities (Prevention) Act, 2007 (Kerala) - S. 3 - Power to make orders for detaining Known Goondas and Known Rowdies - four cases regarding the involvement of the detenu are in small quantity of contraband narcotics, whereas there is involved a large quantity in the case in which he had been acquitted - The fact that the crimes pending against the detenu were only of small quantity might have persuaded the government to release the detenu - the detention order is not sustainable, since the representation by the detenu under Article 22(5) of the Constitution and under Section 7(2) of KAPPA Act has not been given real and proper consideration by the Government.

Penal Code, 1860 - S. 307 - Attempt to Murder -  the intention of the assailants was only to cause some injury and they had no intention to commit murder. Their intention was only to ward off PW2 from the scene. They did not endeavour to chase him and finish him off. Therefore, the prosecution has not established that the accused committed the offence u/s 307 of I.P.C.

Maximus Fernandez @ Maxwell Fernadez v. Olga Fernandez Civil P.C. 1908 - S.151 - Every procedure is to be understood as permissible till it is shown to be prohibited by law. Every court must be deemed to possess all such powers as may be necessary to do the right and to undo the wrong. Section 151 of the Code does not give the court any new power. It merely declares that the court has inherent power to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the court. Inherent power can be exercised to do real and substantial justice. (Para.11)

Now law is well settled with regard to release of vehicle in a case where there is hypothecation agreement executed between registered owner and financer/banker; once borrower fails to pay installment in terms of agreement then, the financer/banker has a right to take possession of the vehicle back or get the vehicle released in its favour.

Release of vehicle in a case where there is hypothecation agreement executed between registered owner and financer/banker - Once borrower fails to pay installment in terms of agreement then, the financer/banker has a right to take possession of the vehicle back or get the vehicle released in its favour.

Industrial Disputes Act, 1947 - Section 33C - Recovery of money due from an employer - Limitation - Even if some reasonable period of limitation is to be read in to the provision, since the provision itself is silent on that score, then it could be taken to be a period of three years after the conclusion of the proceedings in the Labour Court.

1. Mahendra Pratap Dubey v. Managing Officer, Evacuee Property Administration of Evacuee Property Act, 1950 - Section 10(2)(o) - Displaced Persons (Compensation and Rehabilitation) Act, 1954 - Validity of the Sale Certificate - Once it is held that no sale certificate issued in favour of respondent by the Custodian of Evacuee Property, under the 1950 Act is forthcoming nor any entry in the official register is found in that regard, all persons claiming through him must suffer the consequences of such a finding of fact.

Ranbir Penal Code - Sections 363/376 - the story of rape projected by victim does not inspire confidence of court -  there is no strict proof that accused have committed the criminal act as alleged by prosecution.

Delhi School Education Act, 1973 - Section 8 (3) - Delhi School Education Rules, 1973 - Rule 105 – Probation - Rule 105 is applicable to unaided minority schools, in as much as these provisions do not encroach or interfere with the rights of the minorities to administer their educational institutions.

Family Settlement - A family settlement which settles disputes within the family should not be lightly interfered with especially if the settlement has already been acted upon by some members of the family - Such settlements have to be treated differently from ordinary contracts and should not be lightly disturbed.

Negotiable Instruments Act, 1881 - Section 138 - Whether a complaint would be maintainable, against the company, if the statutory notice is issued only to its Managing Director and is not issued to the company which is maintaining the account from which the subject cheque is issued ?

Code of Criminal Procedure, 1973 - Sections 125 & 482 -  Family Courts Act, 1984 - Order for maintenance of wives, children and parents -  Rejection / Allowing of the Interim Maintenance Applications - Whether an application under Section 482 of Cr.P.C. or a criminal revision under Section 397 of Cr.P.C. is maintainable ?

Labour Law - In determining the question as to whether a person is employed in a supervisory capacity or otherwise, mere designation of the post is not decisive of the nature of employment. 

Securitisation and Reconstruction of Financial Assets and Enforcement of Securities Interest Act, 2002 - Statutory competence of a Chief Judicial Magistrate to act under the provisions of Section 14.

Code of Criminal Procedure, 1973 - S. 482 - Saving of inherent power of the High Court - the abuse of process caused by FIR stands aggravated if the FIR has taken the form of a charge sheet after investigation. The power is undoubtedly conferred to prevent abuse of process of power of any court.

Protection of Women from Domestic Violence Act, 2005 - Section 27 - Jurisdiction - Section 27 (c) is like an exception to the provisions contained in Section 27 (a) 27 (b) of the Act of 2005. The “cause of action” may not necessarily accrue at a place covered by Section 27 (a) or Section 27 (b) of the Act of the 2005. The provisions contained in Section 27 (a) and Section 27 (b) of the Act are relatable to the principle of territorial jurisdiction, which is the place where the contingencies enumerated in Section 27 (a) and Section 27 (b) of the Act that may arise within the territorial jurisdiction of a particular Court and that will become the guiding factor for deciding the place of suing by the aggrieved person.

Narcotic Drugs and Psychotropic Substances Act, 1985 – S. 50 - Conditions under which search of persons shall be conducted.

Interference in the due course of justice or the administration of justice would lead to adverse consequences.

Criminal Procedure Code, 1973 - S. 482 - Penal Code, 1860 - Ss. 498A & 114 - Dowry Prohibition Act, 1961 - Ss. 3 & 4 - Quashing of FIR - C hoosing of forum - Petitioner  mother-in-law  is aged about 59 years -  She has to travel all the way from her native place in Andhra Pradesh to Davanagere to attend the case which causes her hardship and she is roped in the case to harass in that way   - Proceedings against the petitioner are nothing but the abuse of the process of the Court .

Service Law - A staff should not be suspended or departmental proceedings should not be drawn on mere absence from duty.

1. S. Sarojini Amma v. Velayudhan Pillai Sreekumar, AIR 2018 SC 5232 Transfer of Property Act 1882 - Ss. 122, 123, 124, 125 & 126 - “Gift” defined - Transfer how effected - Gift of existing and future property - Gift to several of whom one does not accept - When gift may be suspended or revoked.

Criminal Procedure Code – Power to summon material witness, or examine person present -  Plea of victim that on the earlier occasion he turned hostile under coercion and threat meted out to him at the instance of accused, cannot be a ground for recalling and re-examine.

Negotiable Instruments Act, 1881 - Section 138 – Code of Criminal Procedure Svt. 1989 - Section 561A - Quashing of Complaint - theft of cheques - legal notice on 01.02.2017 demanding an amount of 8, 00,000 - no complaint was filed within stipulated time on said cause of action - cutting and changing the date of 01.02.2017 by 10.03.2017, sent the second notice containing the same contents and again made the same demand for payment of the alleged amount within fifteen days from the receipt of the notice - These are disputed questions of facts, cannot be decided in this petition - These are defenses which petitioner has to prove before court below during trial.

Negotiable Instruments Act, 1881 - Sections 138 and 141 - Offences by companies - Specific proof of resignation of Director - defence taken that they were not directors at the time of offence, is a fact which they have to prove before court below - self written letter sent to boards of directors of firm without any Form 32 of Company Act - these simple letters are not admissible.

1. Sivasankar V.K. v. V.K. Sivan Will - Interpretation of the terms of a Will - the testator wished that ‘Schedule A’ properties are to be enjoyed by the male children - it is within the power of the testator to decide whether he wants the property to be held by the male members.

Information Technology Act, 2000 - S. 67A – Penal Code 1860 - Ss. 376, 376 (2), 376 (2)(n) & 354C - In case of digital evidence stored in a computer, mobile phone, USB drive or digital camera, the Investigating Officer should have ensured that there is a clear link between the hardware and the digital evidence copied from that hardware.

Where a case involves the eye witness testimonies of close relatives of the victim, the Court should be cautious to ensure that the eye witness testimony is corroborated in material particulars. This caution arises from the fact that such injured eye witnesses, who are close relatives, may not be objective and further that on account of the past rivalry with the accused, they may be inclined to falsely implicate the accused. The law in regard to the eye witness testimonies of the related witnesses has been explained by the Supreme Court in several decisions.

Securitisation and Reconstruction of Financial Assets and Enforcement of Securities Interest Act, 2002 - Security Interest (Enforcement) Rules, 2002 - the borrower/debtor can approach the Debts Recovery Tribunal under section 17 of the Act at the stage of the possession notice referred to in rule 8(1) and 8(2) of the 2002 Rules.

Service Law - Teachers - Government should remember that teachers should not be considered as beggars, they are one of the most respected citizens of the country and the backbone of the society. It is also known to all of us that in different parts of the world, teachers are respected and well paid.