Tuesday, August 31, 2010

Maharashtra assures SC on cop for SIT probe in Gujarat

New Delhi: Supreme Court on Tuesday recorded an undertaking from Maharashtra government that it would relieve senior IPS officer Dr K Venkatesan within a week to enable him join the reconstituted SIT, headed by former CBI director R K Raghavan, to probe to post-Godhra riots.


A Bench, headed by Justice D K Jain, recorded the undertaking after Maharashtra’s counsel Sanjay Kardia assured the court that the state had no objection to the officer joining the SIT and said necessary steps would be taken within a week to relieve him of his present responsibilities in the state.
Modi’s statement was recorded by SIT on March 27-28 in connection with the riots at the Gulbarg society in Ahmedabad in which senior Congress leader Ahsan Jafri was killed. Venkatesan is at present working as an IG in the office of the DGP Maharashtra.
On August 19, the apex court had issued a show cause notice to Maharashtra government for not relieving Venkatesan, who has been identified as one of the two members to be included in SIT after two Gujarat cadre officers, Geetha Johri and Shivanand Jha, were moved out of the probe panel by the apex court.
Raghavan said the other member Y C Modi, a senior Assam cadre IPS officer, has already joined the panel. Raghavan told the bench that he had communicated with the home ministry regarding the appointment of Venkateshan, who is an officer of high integrity and competence, but the Maharashtra government was not willing to relieve him.
SIT is monitoring 10 cases of 2002 Gujarat riots on the directions of the apex court.
The cases relate to Gulbarg Society, Ode, Sardarpura, Naroda Gaam, Naroda Patia, Baranpura, Machipith, Tarsali, Pandarwada and Raghavapura

HC quashes FIR against Kuldip Sharma

Ahmedabad: In an embarrassing development for the state government, the Gujarat High Court quashed on Tuesday an FIR filed by CID (crime) against senior IPS officer Kuldip Sharma in connection with the 1984 Kutch encounter deaths.



On May 10, 1984, alleged smugglers Umarwali Mamad and Fakir Mamad Budha were killed in a police encounter and Jumawali Mamad and his son Ibrahim went missing. Jusab Juma Mamad Mokha from Paiya village complained to DGP SS Khandwawala that his father and other family members were killed by Sharma, who was, at the time, the superintendent of police of Kutch district. An FIR was lodged by CID (Crime) last month against Sharma and AS Bishnoi — who was a sub-inspector when the encounter took place — for murder and kidnapping. And the Gujarat police began investigating the case. Curiously, in 1984, an FIR had been filed against 10 policemen, including Bishnoi. The charges were dropped against nine, and Bishnoi was tried and acquitted in 2004.
Sharma approached the high court to challenge the FIR immediately after it was filed. His counsel SV Raju argued that when Sharma was posted in Kutch, the place was a haven for smugglers and anti-national elements, and that spying was rampant. Because Sharma took strict action against the anti-socials, they tried to implicate police personnel in false cases, the counsel argued. While the state government maintained that the FIR was filed in the wake of new evidence, Sharma’s counsel contended that a second FIR was not maintainable. Moreover, Sharma was posted outside Gujarat between 1995 and 1992, and therefore there was no chance of influencing witnesses.
After hearing the arguments, justice RH Shukla quashed the FIR and stopped the police investigation. The court observed that the state government as well as the complainant had not challenged the sessions court’s order during all these years.
While quashing the FIR, the court also considered a delay of 26 years in filing the FIR. Besides, the court raised an important question: when Bishnoi was acquitted in this case, and when Mokha did not challenge the order, “would it be justified to allow the investigation to proceed?” After a discussion, the court concluded that allowing the investigation to go on would be a futile exercise to trace any evidence in the case, though it was a cognizable and serious offence. But any probe in this case would be nothing but an attempt to bypass judicial proceedings.The HC also declined the state government’s plea to suspend the order for sometime so that it could approach the SC.

Stopping the state government to probe the 26-year old-encounter case against additional DGP Kuldip Sharma, the Gujarat High Court enumerated the instances where the state government and the private complainant failed to take any steps during all these years.
Justice RH Shukla has considered inaction on part of the private complainant and the state government a major ground for quashing the FIR against Sharma. The court has observed that a division bench had in 1985, while dealing with a habeas corpus petition for missing Jumavali Mamad and his son Ibrahim, given directions with regard to further probe by CID (crime) or CBI.
The high court has also noticed that the trial against sub-inspector AS Bishnoi resulted in acquittal, against which the state government preferred no appeal in the high court. A private complaint was filed by complainant Ibrahim Juma Mokha before a magisterial court in Bhuj against 10 policemen, but Sharma’s name was not mentioned by him at that stage.
The high court also referred to the judgment of acquittal, which had found lapse in the investigation like not recovering the revolver or rifle, not calling for ballistic expert reports. Moreover, the lower court also expressed that had the case been investigated by an investigating agency like CBI, it could have been different matter and therefore the benefit of doubt was given to Bishnoi.
Justice Shukla took notice of the behaviour on part of the private complainant during the trial was going on in the sessions court and after the pronouncement of judgment. “Assuming at that time the court has not taken the steps, he could have filed an application for bringing additional evidence on record or any other proceedings could have been initiated as may be advised, or at least he could have moved the high court when no appeal was preferred,” the high court observed.


Bus burning incident: police inaction deprecated

The Supreme Court on Monday strongly deprecated the inaction of the police in not intervening to save the lives of three innocent college girls when the bus was burning.



A Bench of Justice G.S. Singhvi and Justice B.S. Chauhan said: “This crime occurred right in the middle of a busy city. Innocent girls trapped in a burning bus were shouting for help and only the male students from their university came to their rescue and succeeded in saving some of them. There were a large number of people, including shopkeepers, mediapersons, and police personnel and none of them considered it proper to help in their rescue. Even if the common man fails to respond to the call of his conscience, the police should not have remained inactive.”

The Bench said: “The so-called administration did not bother to find out why the police did not intervene and assist in the rescue of the girl students. It is clear that the so-called protectors of society stood there and witnessed such a heinous crime being committed and allowed the burning of the bus and roasting of the innocent children without being reprimanded for failing in their duty. If the common citizens and public officials present at the scene of the crime had done their duty, the death of the three innocent young girls could have been prevented.”

The Bench said: “Life imprisonment is the rule and death penalty an exception. The rarest of the rare case comes when a convict would be a menace and threat to the harmonious and peaceful co-existence of society. Where an accused does not act on any spur-of-the-moment provocation and he indulged himself in a deliberately planned crime and meticulously executed it, the death sentence may be the most appropriate punishment for such a ghastly crime.”

Taking a lenient view and not imposing the appropriate punishment would be a mockery of justice.

It said to permit the accused to escape the extreme penalty of law when faced with such evidence and such cruel acts and to give a lesser punishment would be to render the justice system of this country suspect.

The Bench said the common man would lose faith in the courts if the punishment was not proportional to the offence committed.

Pointing out that there was no justification for the commission of such a brutal offence in this case, it declined to interfere with the death sentence awarded by the courts below to the three main accused.

“Vigilance, best defence against online banking frauds and scams”

Fraudsters are now faking even Reserve Bank of India's (RBI) documents and circulars. Many such fake documents contain the names of genuine RBI officials. However, their contents are entirely false, according to S.K. Maheshwari, General Manager (Foreign Exchange Department), RBI.

All documents and circulars of the RBI are uploaded into its site - www.rbi.org.in. – and hence the public could cross-check anything purported to RBI circular they receive.




Addressing a press conference here to raise awareness on foreign exchange fraud on Monday, he said that fake websites of RBI or banks were being created to lure unsuspecting individuals. “While RBI only picks up secondary information, the number of complaints of such online frauds is high in Chennai. The RBI is getting a complaint almost every day,” he said.

Online scam
A typical online scam involves informing a person via email or SMS that he/she has won a lottery in a foreign country and is asked to deposit a sum for transaction fee.

The tricksters get somebody to open a genuine bank account for such scams by giving them a share, he said, adding that the money gets withdrawn immediately after the victim deposits it.

He said that such transactions were in violation of the Foreign Exchange Management Act, 1999.

The RBI was conducting an awareness campaign to sensitise the public to such scams besides issuing circulars cautioning banks authorised to deal in foreign exchange.

While it is the major type of fraud, lottery was not the only method, he said, adding some others which included promising exporters better prices in exchange for a ‘registration fee' or offering loans at cheaper interest rates.

“The main targets of such scams are the middle class who possess mobile phones and email ids. The fraudsters play on the human greed,” he said.

Avoid cafes
A.J. George, RBI Assistant General Manager, said that the website of all banks had ‘https' in the prefix of their website with the ‘s' standing for secured websites.

While fraudsters could create fake bank websites with similar designs and similar sounding website address, (for ex: www.rbii.org.in), their sites would have only ‘http.'

Banks never asked their customers the PIN details especially over the telephone except while using their website.

He also urged the public to avoid conducting bank transactions in internet cafes.

Distribution of food grains an order, not a suggestion, SC pulls up Pawar

NEW DELHI: The Supreme Court today made it clear that it had ordered free distribution of foodgrains to the poor instead of allowing it to rot in godowns and it was not a suggestion as made out by Agriculture minister Sharad Pawar.
"It was not a suggestion. It is there in our order. You tell the Minister," the court told the government counsel.
The apex court had on August 12 asked the Centre to consider free distribution of foodgrains to the poor instead of allowing it to rot in Food Corporation of India godowns.

The court had passed the direction while dealing with a public interest litigation filed by civil rights group PUCL on rampant corruption in Public Distribution System (PDS) besides rotting of food grains in FCI godowns.

Following this, Pawar had said it was not possible to implement the "suggestion" of the court for free distribution.

Today, a Bench of Justices Dalveer Bhandari and Deepak Verma referred to newspaper reports quoting Pawar that the apex court had only made a suggestion and it was not an order.

"You tell the Minister that it is there in the order, it is part of the order," the Bench said.

The court directed the Government to conduct a fresh survey of the BPL/ABPL/ AAY beneficiaries on the basis of the figures available for 2010 and said the authorities cannot rely on a decade-old data to extend the benefits.

The Bench further said that the government must take urgent steps to prevent further rotting of food grains while maintaining that it must procure only that much quantity which it can preserve.

The Bench reiterated its earlier order that persons above poverty line shall not be entitled to subsidised foodgrains but if the Government was determined to extend the benefit, the same shall be given to those families whose annual income is below Rs three lakh.

Earlier, the apex court had asked the government to consider the suggestion for disbanding PDS supply to Above Poverty Line (APL) families and restrict the benefit only to BPL families and Antodya Anna Yojana (AAY) Scheme beneficiaries.

However, the Centre, in an affidavit, had said it was extending the PDS supply to APL families only after meeting the requirements of the BPL/ AAY beneficiaries.

Monday, August 30, 2010

Life term confirmed for man who killed woman for not wearing burqa

Taking a serious view of moral policing over enforcement of burqa turning brutal, the Supreme Court has upheld life term to a man who slashed a woman repeatedly resulting in her death.



The enforcement of burqa by force happened in Annu Nagar in Bhopal in December 1997. Zarina was sitting outside her house and was rolling beedis when the accused, Rafiq Khan, came and objected to her being without a burqa.
He offered her money to buy one. She refused to take the money and asked him to mind his own business. This enraged Khan no end. He picked up a knife and slashed and stabbed her repeatedly in front of her minor daughter Farida. Zarina died of the injuries.
Challenging the conviction and life term before the apex court, Khan had pleaded that Farida was a minor and her testimony could not be relied upon. But a Bench comprising Justices H S Bedi and C K Prasad said the girl was 13 years old and understood what the accused was upto.
The next line of defence put up by Khan for a lenient sentence was that there was no previous enmity between him and the deceased and that it happened on the spur of the moment. Arguing for the state of Madhya Pradesh, counsel Vibha Datta Makhija said it was a clear case of enforcing burqa code and the accused did not deserve any leniency.

Magistrates need training in juvenile laws: HC

Gujarat High Court on Monday directed its administrative arm to arrange for training in the Juvenile Justice Act for the magistrates in Gujarat judiciary.

The order came after a petitioner Lok Adhikar Manch raised the issue of inadequacies on the part of judiciary in handling juvenile cases.
The PIL was filed in 2003, demanding setting up of remand homes and equip them with manpower to take proper care of juveniles that were brought in official care for various reasons, including commission of offence.
Following this PIL, the state government was asked by the court to implement the law, and remand homes were set up accordingly in each of the districts.
The government recently filled some 400 vacancies lying vacant in remand homes for years.
When the PIL came up for hearing on Monday, the petitioner’s counsel Anand Yagnik submitted that there was a need to sensitise the members of judiciary, particularly judicial magistrate first class (JMFC) who preside the juvenile courts, regarding the issue of juveniles.
After noticing that JMFCs were not trained in juvenile laws and child psychology, a bench headed by Chief Justice SJ Mukhopadhaya directed the administrative side of the high court to arrange for training in this regard. The court asked the registrar general to submit a progress report after a month.
During the last proceeding, the social justice and employment department informed that the court that it was considering certain trades like stitching, sewing and carpentry outdated and therefore they would be done away with.
Instead, the state government is planning to introduce fashion designing, computer education and information technology.


Need to improve conditions in lower courts: CJI

Chief Justice of India S. H. Kapadia on Saturday said it was the need of the hour to improve the conditions in the country's lower courts. He was speaking at the inauguration of a new District Court complex for the Capital.

Justice Kapadia said that with the commissioning of the new District Court at Saket in South Delhi a new era has been ushered in for the benefit of litigants, advocates and visitors.




It would also facilitate documentation of records and maintenance of legal issues in a better way.

Lauding the Delhi Government's role in improving the delivery of justice, the Chief Justice said the budgetary allocation on this head in Delhi was 1.6 per cent of the total allocation as against 0.5 per cent in the rest of the country.

Describing the judiciary and the courts as knowledge organisations, Justice Kapadia said people were fortunate that the rule of law still prevails in our country.


Chief Minister Sheila Dikshit said the Delhi Government is conscious of its responsibility to provide easy access to justice at a low cost. “Keeping an alarming situation of increase of cases in the courts, we are not only to strengthen the existing system but have to implement other modes of resolution of disputes. The Government has taken the initiative to bring law and justice into the day-to-day lives of the citizens,'' she said.

The approach in this direction has been multi-pronged, she said. “On the one hand the infrastructure has been strengthenedand on the other innovative methods have been initiated to find new ways to bring justice closer and more accessible to the citizens.''

The Chief Minister said her government has also initiated innovative measures with such a mechanism under the Department of Law, Justice and Legislative Affairs. It has established a society by the name of Delhi Dispute Resolution Society with the objective of providing prompt justice to people before they go to the court or the police.

“We have already established a few mediation centres and more are likely to be established very shortly in all areas of the city,'' she added.

6 Saudi women to file suit against dad for preventing their marriage

DUBAI: In an unusual legal fight, six Saudi sisters have decided to file a lawsuit against their father for repeatedly having turned down their suitors and not allowing them to get married.


The women, all in their 30s, have written a letter to Sultan Bin Zahem, chairman of Saudi Arabia's Advocacy Committee, demanding that they be given the authority to get married.

They allege that their father always turned down their suitors claiming that there was no woman in his family to negotiate the marriage terms.

In the letter, the women alleged that their father has rejected many suitors even though they were pious men and of good conduct, Saudi Okaz newspaper reported.

Bin Zahem said the women can file a lawsuit against their guardian and the judge will summon him to ask him why he has not allowed his daughters to get married.

If his reasons were not convincing, the judge would use his authority to approve their marriages to appropriate men.

The girls' complaint cannot be considered as disobedience of parents because they were demanding the right to their private social lives; the official was quoted as saying by the newspaper.

The sisters are now preparing to file a suit against their father.

Sunday, August 29, 2010

M.A.A. Annamalai V/S State of Karnataka & Another (CRIMINAL APPEAL NO. 1504 OF 2010)August 12, 2010

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1504 OF 2010
(Arising out of SLP (Crl) No.5768 of 2008)

M.A.A. Annamalai .. Appellant
Versus
State of Karnataka & Another .. Respondents
JUDGMENT

Dalveer Bhandari, J.

1. Leave granted.


2. This appeal is directed against the judgment and order dated 26.05.2008 passed by the High Court of Karnataka at Bangalore in Criminal Petition No.2625 of 2004.


3. Brief facts of the case are as under:-

The appellant, who was one of the Directors of R.P.S.

Benefit Fund Ltd. submitted his resignation letter on

8.12.1997 which became effective from the date of filing of

Form 32 (27.12.1997) with the Registrar of Companies. The

said Form has been filed with this petition.


4. Respondent no.2 filed a complaint with the Indira Nagar

Police Station, Bangalore, alleging:

- that RPS Benefit Fund had invited deposits from
the public vide circular dated 06.12.1998 and
that monies had been invested by the Petitioner
and his wife in the Pensioner's Benefit Fund,
pursuant to the approval of the scheme by the
Reserve Bank of India;
- that the Company had issued letters on
18.05.1999 and 14.06.1999 to the investors not
to present their interest warrants and that
payments of interests would be made by August
1999;
- that the company had since closed its business
and the amount due to the Respondent No.2 was
about Rs.2,91,778/-;


5. The Respondent No.2 lodged a First Information Report

on 15.10.1999 with the Indira Nagar Police Station alleging the

offence under section 420 Indian Penal Code read with
3

sections 3, 4, 5 and 6 of the Money Circulation and Banning

Act, 1978." In the FIR, it was stated that the alleged offences,

if any, were committed during the period between 24.05.1998

and 17.09.1999.

6. According to the appellant, he ceased to be a Director of

the company from 27.12.1997, therefore, he was not

responsible in any manner for what had happened in the

company after he had resigned as a Director of the company.


7. The First Information Report was lodged by respondent

no.2 and consequently the then Xth Additional Chief

Metropolitan Magistrate, Bangalore issued a non bailable

warrants against the appellant.


8. On Company Petition filed at the instance of the

creditors, the Company Court on 23.7.2002 directed the

winding up of the company. In the winding up petition,

nothing had been mentioned about the appellant because he

was not the Director of the company at the relevant point of

time.
4

9. The Karnataka High Court on 10.6.2004 directed

quashing of the entire proceedings in Criminal Petition

No.4007 of 2002 regarding the erstwhile Directors of the

company. The proceedings before the Xth Additional Chief

Metropolitan Magistrate were based on the complaint filed by

respondent no.2 stating that he and his wife had invested in

the Short Term Deposit Scheme with the company.


10. The High Court held that some of the Directors of the

company had retired in April 1999 and that the non-payment

of matured funds and non payment of interest amount had

taken place after April 1999. According to the appellant, he is

in no manner responsible for company's non payment of either

the mature funds and interest amount. The appellant

submitted that the petition had been filed for some collateral

purposes for unnecessary exerting the pressure on the former

Directors.


11. The learned Judge also held that material ingredients of

the offence of cheating had not been made out. The appellant

filed a petition before the High Court of Karnataka under

section 482 of the Code of Criminal Procedure seeking to
5

quash the proceedings initiated on the basis of the complaint

registered as CC 22656 of 2001 arising out of the Crime

No.425/1999 pending before the Xth Additional Chief

Metropolitan Magistrate, Bangalore.


12. The appellant submitted that he cannot be held liable or

responsible for any of the alleged illegalities committed by the

company after he had resigned from the company. The

appellant's main grievance is that in the impugned judgment,

the learned Single Judge has not dealt with this principal

argument advanced by the appellant. In the impugned

judgment the court observed:-

"It is needless to say that there are some documents
produced by the petitioner to show that at the
relevant point of time he was not the Director of the
Company. It is also his case that he also being an
investor, the ratio followed by this court in the case
of similarly situate persons, applies to his case also.
However, it is for the trial court to ascertain as to
whether there is investment by the petitioner or not,
when he was appointed as a Director, when he
resigned and whether the alleged incident has taken
place during his directorship and further, to
ascertain the preliminary aspect as to whether there
is a prima facie case against him and whether he
has participated in the proceeding or not as in-
charge and managing affairs keeping in view the
various decisions and pass orders in accordance
with law."
6

13. The court further observed that the petition was disposed

of with a direction to the appellant to approach the trial court

seeking for order of discharge.


14. According to the appellant, even according to the

averments of the complaint in the First Information Report

there were no allegations whatsoever against the appellant, in

that event, the High Court ought to have quashed the

proceedings against the appellant instead of compelling him to

approach the Trial Court for obtaining the order of discharge.

The casual approach of the High Court has led to grave

miscarriage of justice.


15. According to the appellant, respondent no.2 had invested

in the Pensioner's Benefit Fund after approval of the scheme

by the Reserve Bank of India and therefore, in any event, the

element of cheating as alleged cannot be made out by any

stretch of imagination. The complaint and the First

Information Report, as aforementioned, do not make out any

case against the appellant.
7

16. In the facts and circumstances of this case, the High

Court was not justified in refusing to quash the complaint

against the appellant and compelling him to go to the trial

court for seeking an order of discharge.



17. We have heard the learned counsel for the parties. The

learned counsel appearing for the State has failed to point out

any specific allegation or averment against the appellant.

Admittedly, the appellant had resigned from the Board of

Directors of the Company with effect from 27.12.1997 and

therefore, cannot be held responsible for any activities of the

company after he ceased to be a Director of the company.

Even, according to the allegation of respondent no.2, no

criminal case can be made out against the appellant.


18. It may be pertinent to mention that a letter has been

placed on record which was sent by respondent no.2, R.

Narayanamurthy to the Inspector of Police, Indranagar Police

Station, Indranagar, Bangalore which reads as under:-
8

"From:

R. Narayanamurthy,
S/o Late N.A. Ramaswamy,
105, Second Main Road,
4th Cross, Sadanandnagar,
NGEF Layout,
Bangalore - 560038

To
The Inspector of Police,
Indranagar Police Station,
Indranagar,
Bangalore-560033

Dear Sir,
Sub: Complaint against RPS Benefit Fund Ltd. and Mr.
M.A.A. Annamalai, Director of the company.
I wish to inform you that I am withdrawing all my charges
against the abovesaid company and its director M.A.A.
Annamalai, s/o Annamalai Chettiar residing at No.1,
Velayudam Street, Nungambakkam, Chennai -6000034.
I further wish to inform you that I am withdrawing all my
criminal cases against Mr. M.A.A. Annamalai and other
directors because of my advanced age and ill health and also
as I have received 55% of the deposited amount from the
Official Liquidator, High Court of Madras at Chennai and I
am also confident to receive further amounts in due course.
I also understand that Mr. M.A.A. Annamalai resigned from
the Board of RPS benefit Fund Ltd. on 8/12/1997 whereas I
have deposited my money with the company only in
December 1998 and in the year 1999. His name has been
inadvertently included as an accused by the Investigating
Officer.
Hence I am withdrawing all my criminal charges against Mr.
M.A.A. Annamalai and the company.
Thanking you,
Yours faithfully,
Sd/-
(R. Narayanamurthy)
Date: 16/09/09"
9

19. This letter indicates that respondent no.2 is not

interested in prosecuting the appellant. According to the

appellant, the proceedings initiated against the appellant in

this case are liable to be quashed.

20. It may be pertinent to mention that respondent no. 2 also

filed an affidavit on 16.9.2009 before this Court. In this

affidavit, reference has also been made to the affidavit filed

before the High Court on 24.6.2009 in which he prayed that

all cases against the Company and the Directors be withdrawn

as he had already received 55% of the deposit amount from

the Official Liquidator, High Court of Madras at Chennai. In

the said affidavit filed before this Court, it was also mentioned

that the appellant had resigned as Director from RPS Benefit

Fund Ltd. on 8.12.1997 but his name had been included as

one of the accused by the Investigating Officer. In this

connection, he had also mentioned that the deponent was to

withdraw the charges of cheating against all the Directors of

the RPS Benefit Fund Ltd., including the appellant pending

before the 10th Additional Chief Metropolitan Magistrate,

Bangalore.
10

21. The learned counsel for the appellant submitted that,

apart from the affidavit of respondent no. 2, no case under

section 420 IPC is made out against the appellant. The

primary requirement to make out an offence of cheating under

section 415 punishable under section 420 IPC is

dishonest/fraudulent intention at the time of inducement is

made. In order to appreciate the controversy in proper

perspective, we deem it appropriate to reproduce section 415

IPC. The same reads as under:

"415. Cheating.- Whoever, by deceiving any person,
fraudulently or dishonestly induces the person so
deceived to deliver any property to any person, or to
consent that any person shall retain any property, or
intentionally induces the person so deceived to do or
omit to do anything which he would not do or omit if he
were not so deceived, and which act or omission causes
or is likely to cause damage or harm to that person in
body, mind, reputation or property, is said to "cheat"."


22. Two main ingredients of section 420 IPC are dishonest

and fraudulent intention. The Indian Penal Code has defined

the word "dishonestly" in section 24 IPC. Section 24 IPC reads

as under:

"24. Dishonestly - Whoever does anything with the
intention of causing wrongful gain to one person or
wrongful loss to another person, is said to do that thing
"dishonestly"."
11

23. The word "fraudulently" has also been defined in section

25 IPC. Section 25 IPC reads as under:

"25. Fraudulently - A person is said to do a thing
fraudulently if he does that thing with intent to
defraud but not otherwise."


24. In the instant case, according to the appellant there has

been no dishonest intention nor have any allegations as to the

extent of such a dishonest intention been made in the

complaint and FIR. In fact, no material whatsoever has been

produced by the respondent no.2 which would indicate any

such dishonest/fraudulent intention at any stage leave alone

at the stage of the alleged inducement of inviting depositors to

deposit money with the company. Furthermore, the

complaint against the Chairman and the Managing Director

itself has been quashed by an order of the High Court for the

very reason that such dishonest/fraudulent intention was

not made out in this case. The judgment of the High Court

acquired finality before no appeal was preferred before this

Court.


25. It is submitted that the FIR merely alleged a violation

under the Money Circulation and Banning Act without giving
12

any basis or material for the same, cannot be sustained. In

the instant case, a company was operating under license from

the Reserve Bank of India and was so carrying on a legitimate

business under a license by the statutory authority. The mere

fact that the company got into financial distress and went into

liquidation would not in any manner make the activity carried

out by them unlawful so as to invoke sections 3 to 6 of the

Money Circulation and Banning Act. In fact, to fall within the

mischief of the Act, it must be shown that the activity ought to

be an unlawful one to make quick and easy money and a

lawful activity duly approved by the Reserve Bank of India

cannot fall under the mischief of the said Act.


26. According to the appellant, the company started its

activities only after getting license from the Reserve Bank of

India and the depositors were legally invited to invest in the

company thereafter and respondent no.2 was one of the

depositors. Admittedly, in the liquidation proceedings, more

than 55% of outstanding company's liabilities had been

cleared despite the company having been wound up.
13

27. The appellant submitted that a complaint under section

420 IPC stands on a different footing than a complaint under a

special statute. Unlike special statutes, like the Negotiable

Instruments Act which casts a vicarious liability on officers in

charge of and responsible for the company in an offence under

the Indian Penal Code, there is no role for vicarious liability.

The appellant has also alleged that even assuming that the

company can be said to have committed an offence, this would

not be enough to sustain a complaint against any officer of the

company for an offence under the Indian Penal Code unless an

allegation or material of the said officer having been involved

in the commission of the offence is made out. Any special

provision like section 141 of the Negotiable Instruments Act, a

deemed provision is included where if the offence is committed

by a company, the officers responsible for the conduct of the

business of the company are deemed to be liable and a

presumption of their liability arise unless duly discharged by

them. There is no such presumption under the Indian Penal

Code and while so necessary allegation/ material must be

available not merely against the company but also against the

accused persons as having participated in such offence. In
14

the instant case, there is not even a whisper anywhere either

in the complaint or in any material collected to show a direct

participation of the appellant who was merely included on the

ground that, once upon a time, he was one of the Directors of

the company.


28. The appellant also submitted that even assuming that

there could have been a vicarious liability thrust on the

appellant, even then there cannot be any such vicarious

liability in absence of any allegations and material to show

that the appellant was in charge of or responsible for the

conduct of the company's business which had given rise to the

offence. In the instant case, the appellant ceased to be the

Director of the company w.e.f. 27.12.1997 following his

resignation on 8.12.1997, which fact was also recorded in the

Statutory Form 32 filed before the Registrar of Companies.

The complaint itself expressly stated that the offence had

taken place only thereafter and in fact the FIR expressly stated

that the occurrence of offence was between 24.5.1998 and

17.9.1999. At that stage, the appellant had admittedly ceased

to be a Director of the company and was not even connected

with the company in any manner at the time when the alleged
15

offence was committed and cannot be prosecuted in respect of

such acts of the company.


29. The appellant, in order to strengthen his stand, has

placed reliance on a numbers of judgments of this Court.

Reliance has been placed on the case of Hira Lal Hari Lal

Bhagwati v. CBI, New Delhi (2003) 5 SCC 257. In this case,

the Court has observed that for establishing the offence of

cheating, the complainant is required to show that the

accused had fraudulent or dishonest intention at the time of

making promise or representation. From his failure to keep

promise subsequently, such a culpable intention right at the

beginning cannot be presumed.


30. Reliance has also been placed on another case between

Uma Shankar Gopalika v. State of Bihar & Another (2005)

10 SCC 336, in which this Court observed that it is well

settled that every breach of contract would not give rise to an

offence of cheating and only in those cases breach of contract

would amount to cheating where there was any deception

played at the very inception. If the intention to cheat has

developed later on, the same cannot amount to cheating.
16

31. The learned counsel for the appellant also relied on the

case of S.V.L. Murthy etc. v. State represented by CBI,

Hyderabad (2009) 6 SCC 77, in which this Court observed as

under:

"41. An offence of cheating cannot be said to have
been made out unless the following ingredients are
satisfied:
(i) deception of a person either by making a false
or misleading representation or by other action
or omission;
(ii) fraudulently or dishonestly inducing any
person to deliver any property; or
(iii) to consent that any person shall retain any
property and finally intentionally inducing that
person to do or omit to do anything which he
would not do or omit.
For the purpose of constituting an offence of
cheating, the complainant is required to show that
the accused had fraudulent or dishonest intention
at the time of making promise or representation.
Even in a case where allegations are made in regard
to failure on the part of the accused to keep his
promise, in the absence of a culpable intention at
the time of making initial promise being absent, no
offence under Section 420 of the Penal Code can be
said to have been made out."

32. In Vir Prakash Sharma v. Anil Kumar Agarwal (2007)

7 SCC 373, this Court observed as under:

"13. The ingredients of Section 420 of the Penal
Code are as follows:
(i) Deception of any persons;
17

(ii) Fraudulently or dishonestly inducing any
person to deliver any property; or
(iii) To consent that any person shall retain
any property and finally intentionally
inducing that person to do or omit to do
anything which he would not do or omit.
No act of inducement on the part of the
appellant has been alleged by the respondent. No
allegation has been made that he had an intention
to cheat the respondent from the very inception."

33. This Court in Pepsi Foods Ltd. & Anr. v. Special

Judicial Magistrate & Ors. (1998) 5 SCC 749 observed as

under:

"28. Summoning of an accused in a criminal case is
a serious matter. Criminal law cannot be set into
motion as a matter of course. It is not that the
complainant has to bring only two witnesses to
support his allegations in the complaint to have the
criminal law set into motion. The order of the
Magistrate summoning the accused must reflect
that he has applied his mind to the facts of the case
and the law applicable thereto. He has to examine
the nature of allegations made in the complaint and
the evidence both oral and documentary in support
thereof and would that be sufficient for the
complainant to succeed in bringing charge home to
the accused. It is not that the Magistrate is a silent
spectator at the time of recording of preliminary
evidence before summoning of the accused. The
Magistrate has to carefully scrutinise the evidence
brought on record and may even himself put
questions to the complainant and his witnesses to
elicit answers to find out the truthfulness of the
allegations or otherwise and then examine if any
offence is prima facie committed by all or any of the
accused."
18

34. The learned counsel appearing for the State of Karnataka

supported the impugned judgment of the High Court and

submitted that no interference is called for by this court. He

placed reliance on the case of State of Haryana & Others v.

Bhajan Lal & Others 1992 Supp (1) SCC 335 in which this

Court observed as under:

".....that the power of quashing a criminal
proceeding should be exercised very sparingly and
with circumspection and that too in the rarest of
rare cases; that the court will not be justified in
embarking upon an enquiry as to the reliability or
genuineness or otherwise of the allegations made in
the FIR or the complaint and that the extraordinary
or inherent powers do not confer an arbitrary
jurisdiction on the court to act accordingly to its
whims or caprice."


35. The learned counsel for the State also submitted that, in

the instant case, the FIR was not only registered under section

420 IPC but under sections 3, 4, 5 and 6 of the Prize Chits

and Money Circulation Schemes (Banning) Act, 1978.


36. He also placed reliance on the case of Rajesh Bajaj v.

State NCT of Delhi & Others (1999) 3 SCC 259, in which

this Court, while dealing with section 482 Cr.P.C. has held as

under:
19

"It is not necessary that a complainant should
verbatim reproduce in the body of his complaint all
the ingredients of the offence he is alleging. Nor is it
necessary that the complainant should state in so
many words that the intention of the accused was
dishonest or fraudulent. Splitting up of the
definition into different components of the offence to
make a meticulous scrutiny, whether all the
ingredients have been precisely spelled out in the
complaint, is not the need at this stage. If factual
foundation for the offence has been laid in the
complaint the court should not hasten to quash
criminal proceedings during investigation stage
merely on the premise that one or two ingredients
have not been stated with details. For quashing an
FIR (a step which is permitted only in extremely rare
cases) the information in the complaint must be so
bereft of even the basic facts which are absolutely
necessary for making out the offence".


37. The learned counsel for the State further submitted that

the mere settlement of the case with the complainant on

whose complaint the initial FIR was lodged does not dislodge a

criminal prosecution by the State. Several other witnesses

exist who would testify to the transactions and it would be up

to the trial court to test the prosecution case.


38. Reliance was also placed on the case of Medchl

Chemicals & Pharma (P) Ltd. v. Biological E.Ltd. &

Ors.(2000) 3 SCC 269, wherein this Court observed as under:
20

"Needless to record however and it being a settled
principle of law that to exercise powers under Section
482 of the Code, the complaint in its entirety shall have
to be examined on the basis of the allegation made in
the complaint and the High Court at that stage has no
authority or jurisdiction to go into the matter or
examine its correctness. Whatever appears on the face
of the complaint shall be taken into consideration
without any critical examination of the same. But the
offence ought to appear ex facie on the complaint".


39. It is further submitted by the counsel for the State that

the complaint clearly disclosed the offences under sections 3,

4, 5 and 6 of the Act and also offence under section 420 IPC.


40. Reliance has been placed by the learned counsel for the

State that this Court in Kuriachan Chacko & Others v.

State of Kerala (2008) 8 SCC 708, while dealing with the

Prize Chits and Money Circulation Schemes (Banning) Act, has

held that:

"21. The Preamble of the 1978 Act declares that it has
been enacted "to ban the promotion or conduct of prize
chits and money circulation schemes and for matters
connected therewith and incidental thereto".
22. Section 2 is legislative dictionary and defines certain
terms. The phrase "money circulation scheme" is
defined in clause (c) which reads as under:
2.(c) `money circulation scheme' means any
scheme, by whatever name called, for the
making of quick or easy money, or for the
receipt of any money or valuable thing as the
consideration for a promise to pay money, on
any event or contingency relative or
applicable to the enrolment of members into
21

the scheme, whether or not such money or
thing is derived from the entrance money of
the members of such scheme or periodical
subscriptions;

In this case, it was further held that:

"39. We are unable to agree with the learned counsel.
The courts below rightly held that prima facie case had
been made out against the accused. Both the
ingredients necessary for application of Section 2(c) of
the Act are present in the case on hand. The trial court,
for coming to that conclusion, referred to certain
documents. The advertisement clearly declared that a
member would get double the amount when after his
enrolment, two members were enrolled under him and
thereafter, 4 other persons were enrolled and after the
enrolled 4 persons, 8 persons were enrolled under them.
Thus, only after 14 persons under the first enrolled
person become members under the Scheme, the first
person would get Rs.1250 i.e. double the amount of
Rs.625 (1+2+4+8). The trial court also noted that
Kuriachan Chacko (Accused 1) who proposed the
project for implementation, described how the project
would work from which also it is clear that the double
amount will be given to a person who purchases a unit
only after 14 persons are enrolled subsequent to him."


41. We have carefully considered the rival contentions. It

emerges that:

a) In the instant case, the appellant ceased to be a

Director of the company from 27.12.1997

whereas the alleged offences, if any, were

committed during the period from 24.5.1998 to

17.9.1999.
22

b) Admittedly, there are no allegations against the

appellant in the First Information Report.


c) The company had invited investment from the

depositors to invest in the business/benefit funds

after receiving due approval of the scheme from

the Reserve Bank of India. Therefore, in any

event, the element of cheating as alleged cannot

be made out by any stretch of imagination.


d) The complainant/respondent no.2 submitted in

writing to this Court that he does not want to

proceed against the appellant because according

to him the appellant has been inadvertently

included as an accused by the Investigating

Officer. He further mentioned in the letter that

he had already received 55% of the deposited

amount from the Official Liquidator and he did

not want to proceed against the appellant.
23

e) Even assuming that there could have been a

vicarious liability thrust on the appellant, even

then there cannot be any such vicarious liability

in absence of any allegations and material to

show that the appellant was in-charge of or

responsible for the conduct of the company's

business which had given rise to the offence.

From any angle of the matter, the appellant

cannot be compelled to face the criminal trial in

this case.


42. The inherent power should not be exercised to stifle the

legitimate prosecution but at the same time no person be

compelled to face criminal prosecution if basic ingredients of

the alleged offence against him are altogether absent.



43. On consideration of the totality of the facts and

circumstances of this case, the impugned judgment of the

High Court is set aside and the appeal is allowed and the

proceedings initiated against the appellant on the basis of the

complaint registered as CC 22656 of 2001 pending before the
24

Xth Addl. Chief Metropolitan Magistrate, Bangalore, are

quashed.



44. As a result, this appeal is allowed.



.................................J.
(Dalveer Bhandari)



.................................J.
(A.K. Patnaik)
New Delhi;
August 12, 2010.


S.S. Chheena V/S Vijay Kumar Mahajan & Another (CRIMINAL APPEAL NO. 1503 OF 2010-12-08-2010)

REPORTABLE



IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1503 OF 2010
(Arising out of SLP (Crl) No.6811 of 2009)

S.S. Chheena .. Appellant

Versus

Vijay Kumar Mahajan & Another .. Respondents




JUDGMENT



Dalveer Bhandari, J.

1. Leave granted.


2. This appeal is directed against the judgment of the High

Court of Punjab & Haryana at Chandigarh in Criminal

Revision No.1800 of 2008 dated 17.2.2009.





3. The appellant S.S. Chheena was a Security Officer at

Guru Nanak Dev University, Amritsar. This job was accepted

by him after his retirement from the Indian Police Service
2

(IPS). He is seriously aggrieved by the order of the Additional

Sessions Judge, Amritsar by which he had framed a charge

against the appellant under section 306 of the Indian Penal

Code (for short, IPC).


4. Brief facts necessary to dispose of this appeal are as

under:-

On 13.10.2003, a dispute arose between the son of the

complainant, namely, Saurav Mahajan, deceased who was a

final year student of the Law Department and Harminder

Singh, a fellow student of the same class. The dispute was

with regard to the theft of a mobile phone which came to the

notice of M.D. Singh, the then Head of the Law Department on

13.10.2003, pursuant to which M.D. Singh asked both the

students, i.e., Saurav Mahajan, deceased and Harminder

Singh alias Montu to submit their versions of the incident in

writing.


5. The deceased and Harminder Singh gave their written

versions of the incident and thereafter M.D. Singh forwarded

their versions to the University authorities for taking

necessary action. Consequently, the enquiry was conducted
3

on 13.10.2003 by the Security Officer of the University - the

appellant herein. During the course of the enquiry, on

17.10.2003, the son of the complainant committed suicide by

jumping in front of a train. Subsequently, during the search,

a suicide note was recovered from the pocket of the deceased

dated 16.10.2003. The suicide note is important for

adjudicating and deciding this appeal. The said suicide note

is reproduced as under:-

"SUICIDE NOTE

I am Saurav Mahajan a final year student of
Department of Law of GNDU. Montu had levelled a
false allegation upon me. I am very annoyed
because a false allegation has been levelled upon
me. I have a faith that this allegation is false,
accused Montu and his accomplices will be arrested
and I will be declared as innocent. The reason of
my annoyance is that I am falsely involved as I did
not commit any theft. A dying person will not speak
falsely. I have not committed this theft.

According to me, the theft has been committed
by Harminder Singh in connivance with his
accomplices. Harminder Singh says that on the day
when the Mobile was stolen, he was taking the test.
I made request to Mr. Chhina to see as to whether
he was engaged in the test or not? Or he had not
completed the whole test, came out a little before
the fixed time, and committed theft. Examination
sheet of the said day of Harminder Singh be seen.
Harminder Singh had admitted two things in the
presence of M.D. Singh, HOD of the Law
Department, i.e. (1) he had played a joke with me
4

(2) Harminder Singh admitted that he had
demanded money from me.

Chhina Sahib, M.D. Singh, while dying, I will
not speak untrue. I have not committed any theft.
Real thief is Montu. He has falsely involved my
name. Harminder Singh cannot prove this at any
cost because he is totally wrong. On the other
hand, he has admitted that he had sold this
Reliance set to his friends and has falsely leveled
this allegation against me.

I request my uncle/aunt, mother/father to
forgive me that I tried my best to fulfill their
expected wishes but could not do the same because
Harminder Singh has leveled false allegation against
me. I want to say this thing again that I am
innocent and request my mother/father that they
may not make any complaint regarding my suicide.
I will also say to Chhina Sahib even if they give
justice and leave me but the people will have a
suspicion about me. I am taking this step on
account of my insult. Harminder Singh and his
accomplices are responsible for my suicide or MD
Singh who did not take into account my faith and
without consulting me, has forwarded this case.

Dated: 16.10.2003 Sd/-
Saurav Mahajan


I have not committed any theft and I am not
involved with Montu and his accomplices are
responsible of my this step. Till today, I have not
spoken badly to any one but, however, if any
mistake had been done by me to anybody, please
forgive me.
Sd/-
Saurav Mahajan"
5

6. In the suicide note it is stated that he (Saurav Mahajan)

did not commit the theft and he had committed suicide

because he was falsely implicated in the theft case of a mobile

phone. He further mentioned in the suicide note that

Harminder Singh and his accomplices were responsible for

this act. On the basis of the suicide note a FIR No.81 dated

17.10.2003 under section 306 of the IPC was registered at the

Police Station, GRPS, Amritsar. In the said FIR, the suicide

note of the deceased has been reproduced and on the basis of

the same, Harminder Singh was implicated under section 306

IPC along with M.D. Singh. It is pertinent to mention that in

the said FIR, the appellant, namely, S.S. Chheena, the

Security Officer was not even named as an accused.


7. The complainant had approached the Punjab State

Human Rights Commission, Chandigarh, but, the Commission

had also refused to interfere in the investigation conducted in

FIR No.81 dated 17.10.2003.


8. A report under section 173 of the Code of Criminal

Procedure was submitted only against Harminder Singh.
6

Pursuant to the presentation of the Challan, charges were

framed against Harminder Singh @ Montu.


9. The complainant, being father of the deceased filed a

private complaint in the court of learned Additional Chief

Judicial Magistrate, Amritsar, in which it was alleged that the

appellant S.S. Chheena and M.D. Singh were responsible for

abetting the suicide of his son and sought for their trial under

section 306 IPC.


10. During the course of the trial, an application was moved

by the Public Prosecutor for summoning of the appellant and

M.D. Singh, the then Head of the Department of Law of Guru

Nanak Dev University, Amritsar under section 319 Cr.P.C.

The learned Additional Chief Judicial Magistrate, Amritsar, on

the basis of the said complaint, summoned the appellant as

well as M.D. Singh to face trial under section 306 IPC. The

trial court dismissed the application under section 319 Cr.P.C.

being not pressed as the appellant and his co-accused stood

summoned in the complaint case. The trial court clubbed the

complaint case with the State case and ordered for framing of

the charge under section 306 IPC. Accordingly, a charge-sheet
7

was filed against the appellant along with Harminder Singh @

Montu.


11. The appellant, aggrieved by the framing of the charge

moved the High Court in the Revision Petition which was

dismissed on 17.2.2009. Against that order, the appellant has

approached this court.


12. The High Court observed that the material against the

appellant was not just the suicide note but also includes

threats, humiliating phrases etc. addressed to the deceased

and his father over a period of few days.


13. According to the appellant, it may be significant to

mention that if the threat or the humiliating phrases etc. by

the appellant had any impact on the deceased's mind or had

led to the abetment to commit suicide then all these facts

ought to have been mentioned in the suicide note. In the

suicide note nothing had been mentioned against the

appellant. According to the appellant in absence of any

material against him, no charge could be framed against him

under section 306 of IPC.
8

14. The appellant submitted that the main question which

arises for adjudication is whether it would be just and fair to

compel the appellant to face the rigmarole of a criminal trial in

absence of any credible material against him? According to

the appellant, a careful reading of the suicide note clearly

leads to the conclusion that the appellant was not even

remotely connected with the offence of abetment. When the

appellant was in no manner connected with this case and

there was no credible material to connect the appellant with

the crime, in this view of the matter, according to the

appellant, it would be a futile exercise to compel him to

undergo the rigmarole of a criminal trial.


15. Learned counsel for the appellant has placed reliance on

the judgment of this court in Gangula Mohan Reddy v.

State of Andhra Pradesh (2010) 1 SCC 750 (in which one of

us, Bhandari, J., was the author of the said judgment). The

ratio of the said judgment is fully applicable to this case and

we deem it proper to rely and reproduce some parts of the

said judgment.
9

16. In order to properly comprehend the scope and ambit of

Section 306 IPC, it is important to carefully examine the basic

ingredients of Section 306 IPC. The said section is

reproduced as under:-

"306. Abetment of suicide.--If any person commits
suicide, whoever abets the commission of such
suicide, shall be punished with imprisonment of
either description for a term which may extend to
ten years, and shall also be liable to fine."


17. The word "suicide" in itself is nowhere defined in the

Penal Code, however its meaning and import is well known

and requires no explanation. "Sui" means "self" and "cide"

means "killing", thus implying an act of self-killing. In short, a

person committing suicide must commit it by himself,

irrespective of the means employed by him in achieving his

object of killing himself.


18. Suicide by itself is not an offence under either English or

Indian criminal law, though at one time it was a felony in

England. In England, the former law was of the nature of

being a deterrent to people as it provided penalties of two

types:
10

7 Degradation of corpse of the deceased by burying
it on the highway with a stake through its chest.

7 Forfeiture of property of the deceased by the
State.


19. This penalty was later distilled down to merely not

providing a full Christian burial, unless the deceased could be

proved to be of unsound mind. However, currently there is no

punishment for suicide after the enactment of the Suicide Act,

1961 which proclaims that the rule of law whereby it was a

crime for a person to commit suicide has been abrogated.


20. In our country, while suicide in itself is not an offence,

considering that the successful offender is beyond the reach of

law, attempt to suicide is an offence under Section 309 IPC.


21. "Abetment" has been defined under Section 107 of the

Code. We deem it appropriate to reproduce Section 107, which

reads as under:

"107. Abetment of a thing.--A person abets the
doing of a thing, who--
First.--Instigates any person to do that thing; or
Secondly.--Engages with one or more other person
or persons in any conspiracy for the doing of that
thing, if an act or illegal omission takes place in
pursuance of that conspiracy, and in order to the
doing of that thing; or
11

Thirdly.--Intentionally aids, by any act or illegal
omission, the doing of that thing."

Explanation 2 which has been inserted along with Section

107 reads as under:

"Explanation 2.--Whoever, either prior to or at the
time of the commission of an act, does anything in
order to facilitate the commission of that act, and
thereby facilitates the commission thereof, is said to
aid the doing of that act."


22. The learned counsel for the appellant has placed reliance

on a judgment of this Court in Mahendra Singh v. State of

M.P. 1995 Supp (3) SCC 731. In Mahendra Singh, the

allegations levelled were as under: (SCC p. 731, para 1)

"1. ... My mother-in-law and husband and sister-in-
law (husband's elder brother's wife) harassed me.
They beat me and abused me. My husband
Mahendra wants to marry a second time. He has
illicit connections with my sister-in-law. Because of
these reasons and being harassed I want to die by
burning."


23. The Court on the aforementioned allegations came to a

definite conclusion that by no stretch the ingredients of

abetment are attracted on the statement of the deceased.

According to the appellant, the conviction of the appellant

under Section 306 IPC merely on the basis of the
12

aforementioned allegation of harassment of the deceased is

unsustainable in law.


24. The learned counsel also placed reliance on another

judgment of this Court in Ramesh Kumar v. State of

Chhattisgarh (2001) 9 SCC 618. In this case, a three-Judge

Bench of this Court had an occasion to deal with a case of a

similar nature. In a dispute between the husband and wife,

the appellant husband uttered "you are free to do whatever

you wish and go wherever you like". Thereafter, the wife of the

appellant Ramesh Kumar committed suicide. The Court in

para 20 has examined different shades of the meaning of

"instigation". Para 20 reads as under: (SCC p. 629)

"20. Instigation is to goad, urge forward, provoke,
incite or encourage to do `an act'. To satisfy the
requirement of instigation though it is not necessary
that actual words must be used to that effect or
what constitutes instigation must necessarily and
specifically be suggestive of the consequence. Yet a
reasonable certainty to incite the consequence must
be capable of being spelt out. The present one is not
a case where the accused had by his acts or
omission or by a continued course of conduct
created such circumstances that the deceased was
left with no other option except to commit suicide in
which case an instigation may have been inferred. A
word uttered in the fit of anger or emotion without
intending the consequences to actually follow
cannot be said to be instigation."
13




25. In this case, the court came to the conclusion that there

is no evidence and material available on record wherefrom an

inference of the appellant-accused having abetted commission

of suicide by Seema may necessarily be drawn.



26. In State of West Bengal v. Orilal Jaiswal (1994) 1 SCC

73, this Court has cautioned that the court should be

extremely careful in assessing the facts and circumstances of

each case and the evidence adduced in the trial for the

purpose of finding whether the cruelty meted out to the victim

had in fact induced her to end the life by committing suicide.

If it appears to the court that a victim committing suicide was

hypersensitive to ordinary petulance, discord and differences

in domestic life quite common to the society to which the

victim belonged and such petulance, discord and differences

were not expected to induce a similarly circumstanced

individual in a given society to commit suicide, the conscience

of the court should not be satisfied for basing a finding that

the accused charged of abetting the offence of suicide should

be found guilty.
14



27. This Court in Chitresh Kumar Chopra v. State (Govt. of

NCT of Delhi) (2009) 16 SCC 605 had an occasion to deal with

this aspect of abetment. The Court dealt with the dictionary

meaning of the words "instigation" and "goading". The Court

opined that there should be intention to provoke, incite or

encourage the doing of an act by the latter. Each person's

suicidability pattern is different from the other. Each person

has his own idea of self-esteem and self-respect. Therefore, it

is impossible to lay down any straitjacket formula in dealing

with such cases. Each case has to be decided on the basis of

its own facts and circumstances.


28. Abetment involves a mental process of instigating a

person or intentionally aiding a person in doing of a thing.

Without a positive act on the part of the accused to instigate

or aid in committing suicide, conviction cannot be sustained.

The intention of the legislature and the ratio of the cases

decided by this Court is clear that in order to convict a person

under Section 306 IPC there has to be a clear mens rea to

commit the offence. It also requires an active act or direct act

which led the deceased to commit suicide seeing no option and
15

that act must have been intended to push the deceased into

such a position that he committed suicide.


29. In the instant case, the deceased was undoubtedly

hypersensitive to ordinary petulance, discord and differences

which happen in our day-to-day life. Human sensitivity of each

individual differs from the other. Different people behave

differently in the same situation.


30. When we carefully scrutinize and critically examine the

facts of this case in the light of the settled legal position the

conclusion becomes obvious that no conviction can be legally

sustained without any credible evidence or material on record

against the appellant. The order of framing a charge under

section 306 IPC against the appellant is palpably erroneous

and unsustainable. It would be travesty of justice to compel

the appellant to face a criminal trial without any credible

material whatsoever. Consequently, the order of framing

charge under section 306 IPC against the appellant is quashed

and all proceedings pending against him are also set aside.
16

31. As a result, the appeal is allowed and the impugned

judgment of the High Court is set aside.



.................................J.
(Dalveer Bhandari)



.................................J.
(K.S. Radhakrishnan)
New Delhi;
August 12, 2010

Judges too enjoy right to work with dignity: CJI



Chief Justice of India S.H. Kapadia on Saturday expressed anguish over pathetic working conditions in trial courts in the country, saying even judges enjoy the rights enshrined under Article 21 of the Constitution.

“For the last 20 years, I have been seeing the pathetic condition in which most of the states’ district judges are working. There is no house, no rooms, no proper place to work. I have myself seen those courts,” he said.

The Article 21 pertains to a person or a human society’s right to live with dignity and this includes even the judges, Justice Kapadia said.

The CJI said the country received very good foreign investments because the rule of law still prevails and exists in the largest democracy of the world.

“Some of our neighbours have been ruled by law and we are lucky to have the rule of law, which is a very vital distinction. It is an asset which one needs to protect.

“Today we are getting very good investment particularly in the form of foreign institutional investments and FDIs because, this country has established a brand name, in the sense that rule of law still prevails and exist in the democratic set up of India,” he said at an inaugural function of the sixth district court complex here.

Emphasising the need for adequate judicial infrastructure, Justice Kapadia said no justice delivery mechanism can work efficiently without it and expressed satisfaction over efforts made by Delhi government in this regard.

“Can you have a judicial delivery justice system or justice delivery mechanism without a proper infrastructure? The answer is no.

“All the three wings of the government, be it executive or legislature or judiciary, all accepts that we need to have a justice delivery mechanism thereby a proper infrastructure is put in place. But because of financial constraints, these dreams are not fulfilled. But today, I am proud to say at least in this state my dream is fulfilled,” the CJI said.

Over 650 Indians on Interpol’s ‘wanted’ list

The number of Indians or people of Indian origin on Interpol’s ‘wanted’ list is on the rise with 656 of them getting red-alert notices in little over five years.

The global crime monitoring organisation has issued 656 red-alert notices against Indians or people of Indian origin between January 2005 and May 2010, generally for crimes committed in countries other than India.




A highest of 150 red notices were issued last year while the number stood at 75 in the first five months of this year.

Many of these wanted people are involved in acts of terrorism or serious crimes like rape of a minor.

A red alert or red corner notice obliges immigration and police forces of all member countries to arrest the person concerned and inform the authorities in his home country, or the country where the crime was committed. Interpol is the world’s largest international police organisation, with 188 member countries.

A total of 133 notices wee issued in 2007 while the number stood at 119 in 2006.

About 85 such notices were drawn in 2008 and 94 others in 2005, the CBI, which acts as a nodal agency for international policing in India, said in reply to an RTI query.

The countries where the largest number of offences have been reported include Saudi Arabia, Kuwait, United Arab Emirates, Oman, the U.S., Hong Kong, Russia, Belarus, Egypt, Australia and Belgium.

The offences include money laundering, tax evasion, sexual harassment, disrupting railway traffic, mail fraud and demanding dowry. At least 25 per cent of the offences relate to overspeeding and road accidents.

Exercising his Right to Information, Ashwini Shrivastava had asked for details of red alert notice issued against people of Indian origin in the past five years including the details of offences.


Saturday, August 28, 2010

India’s median age is only 25.9

Comparing just the average ages of different cabinets doesn’t tell the full story. The fact is that India has the lowest median age — the level at which half the population is younger and half older — of 25.9 years on this list of the 15 largest economies. It, therefore, also has the largest mismatch between the age of its population and the age of its leaders.



The difference between the average age of India’s cabinet and the median age of its population is almost 39 years, which is three times the gap for the developed countries on this list. In fact, with the exception of the US, where this age difference is above 20 years, all the other G-8 countries have cabinet ministers on average less than 20 years older than the median age of the country.
The list indicates that developing countries tend to have a higher age difference between their leaders and the population. This gap is 31 for Brazil, 28 for Indonesia, and 26 for China. But remember that China’s median age is 10 years more than India’s, so a gap of 26 years is much less significant.
Could the response to a young leader like Rahul Gandhi, or his father Rajiv Gandhi in an earlier era, be a manifestation of a yearning among many for this age gap between the leader and the led to be reduced? Your reading is as good as ours.


Judge lands in row over ‘copy and paste’

Ahmedabad: A judge has been facing allegations that he copied and pasted the text of one case pertaining to arms recovery in another case related to liquor prohibition. Aggrieved by this method of extracting paragraphs of already prepared orders for convenience on part of the court, the litigant has written to Chief Justice of Gujarat High Court and raised a question on possibility of dispensation of justice.



As per the case details, Kishanlal Bishnoi from Jhalor, Rajasthan was nabbed by the city crime branch sleuths on ring road near Naroda carrying 385 bottles of IMFL in his car on August 5. Bishnoi was booked under the prohibition laws. After his police remand got over, Bishnoi’s uncle Motiram filed a bail application on August 12 seeking release of his nephew.
The metropolitan magistrate in court No 11 rejected the bail application with observation that when such a huge stock of liquor was allegedly found from Bishnoi in the state of Mahatma Gandhi, it would have an adverse impact on society. However, the order came as a shock for the litigant and his lawyer Mohammed Shafi Sheikh. Immediately after obtaining the copy of the order, they dashed off a complaint to the high court against the magistrate. The case was regarding prohibition, but the magistrate recorded submissions stating that Advocate argued that “...the said revolver was not recovered from custody of the accused...He is a resident of Bihar...”
Motiram through advocate Sheikh complained before the high court that the lower court passed the order without hearing, and recorded submissions which were not made by the defence at all. He alleged that the magistrate mentioned a case related to revolver in the prohibition related case and used the text after copying it from an order that was already prepared for some arms recovery case. “The order mentions contentions which were not forwarded by me, because there was no connection of a revolver with this case. We have raised this issue because when the courts begin to copy and paste orders without application of mind, from where litigants can expect justice?”

Friday, August 27, 2010

Gujarat HC order on Ishrat case stayed

NEW DELHI: The Supreme Court on Friday stayed the Gujarat High Court order directing transfer of the Ishrat Jahan fake encounter case probe from state police to the apex court-constituted Special Investigation Team (SIT) headed by former CBI director R K Raghavan.


Taking cue from the SC's objection last week to HC's order entrusting the probe to SIT, Ishrat's mother through counsel Kamini Jaiswal told a Bench comprising Justices B Sudershan Reddy and S S Nijjar that unless the HC order was stayed, the state could issue a notification to that effect.

Shamima Kauser, in her application, sought a stay of that part of the HC's August 12 order asking the Narendra Modi government to issue a notification regarding further investigation to be conducted by SIT.

The Bench felt it appropriate to stay transfer of probe to SIT as the latter had already moved an application before the HC expressing its inability to investigate the case.

The application followed remarks made by the Special Bench of the SC hearing post-Godhra riots cases. The special Bench had said SIT was not a statutory body but one that was created by SC for a specific purpose and no other forum could ask it to investigate any other matter.

On April 19, the SC had referred Kauser's petition seeking CBI probe into Ishrat fake encounter case to the HC saying it would be in a better position to appreciate the facts and circumstances of the case.

What is the difference between impairment and disability?

Impairment
According to the fifth edition of the Guides to the Evaluation of Permanent Impairment, published by the American Medical Association (AMA), impairment is defined as "an alteration of an individual's health status; a deviation from normal in a body part or organ system and its functioning."1,2,3 The World Health Organization (WHO) defines impairment as "any loss or abnormality of psychological, physiological or anatomical structure or function."4



The Social Security Administration (SSA) defines a medically determinable impairment as "an impairment that results from anatomical, physiological, or psychological abnormalities which can be shown by medically acceptable clinical and laboratory diagnostic techniques."5,6,7,8 The SSA further states that a physical or mental impairment "must be established by medical evidence consisting of signs, symptoms, and laboratory findings—not only by the individual's statement of symptoms."

According to the AMA Guides, impairments that are to be rated are permanent impairments. A permanent impairment is defined as one that has reached maximum medical improvement (MMI) and is well stabilized and unlikely to change substantially in the next year with or without medical treatment. Each state workers' compensation system has its own definition of impairment. These definitions may vary from state to state but are generally consistent with the definition expressed in the AMA Guides.9

Disability

According to the fifth edition of the AMA Guides, disability is defined as "an alteration of an individual's capacity to meet personal, social, or occupational demands because of an impairment."2,10 The WHO defines disability as an activity limitation that creates a difficulty in the performance, accomplishment, or completion of an activity in the manner or within the range considered normal for a human being. Difficulty encompasses all of the ways in which the performance of the activity may be affected.

On the other hand, the SSA defines disability as "the inability to engage in any substantial, gainful activity by reason of any medically determinable physical or mental impairment(s), which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months."5,6,7,8 Workers' compensation systems usually define disability as a reduction in wage-earning capacity as a result of an injury, illness, or occupational disease that arose out of, or in the course of, employment.
Distinguishing the difference between impairment and disability is imperative. One individual can be impaired significantly and have no disability, while another person can be quite disabled with only limited impairment. For example, a person with paraplegia who is wheelchair-bound may be working full time quite successfully as an accountant and, therefore, would not meet the SSA's definition of disability. On the other hand, a concert pianist might have a relatively minor injury to a digital nerve that severely limits his/her ability to perform basic work activities (playing difficult piano concertos). In some disability systems, a person in this situation might meet the definition of disabled even though he/she can do other work.
Because of this difference between impairment and disability, physicians are encouraged to rate impairment based on the level of impact that the condition has on the performance of activities of daily living (ADL) rather than on the performance of work-related tasks.11 According to the AMA Guides, impairment ratings derived from the AMA Guides are "not intended for use as direct determinants of work disability."
Interestingly, various professionals and institutions regularly use the AMA Guides for the direct measurement of disability. Most states recognize the impairment ratings determined by the AMA Guides as direct measures of disability, despite the stated intent of the authors.
Disability can be temporary or permanent, and it can be partial or total.12,13 Various programs have various categories of disability. An individual can be temporarily unable to perform work activity for remuneration or profit (for example, after trauma, surgery, and/or intensive care) and can be classified as disabled under some disability programs. However, if recovery occurs within 12 months, the individual is not likely to be classified as disabled under the SSA's permanent disability program.

Many workers' compensation systems allow for partial disability, generating a need for the AMA Guides to measure the extent of the impairment as related to normal functional capacity.12,13,14 The SSA disability program, on the other hand, is an all-or-nothing type of program; the claimant is considered either entirely disabled or not disabled. The Americans with Disabilities Act (ADA) confuses the definition of disability even further. According to the act, disability is present if at least 1 of the following requirements has been fulfilled:
A physical or mental impairment that substantially limits at least 1 of an individual's major life activities
A record of such an impairment
Being regarded as possessing this sort of an impairment
With this broad definition of what constitutes a disability, virtually everyone with a health problem could argue that they have a disability. Further complicating the ADA definition—as ADA cases are tried in the courts—is the ever-changing legal definition of disability.
Defining impairment and disability is not an easy task, as can be seen by the differences in the above-cited perceptions. The definition of these terms varies depending on the circumstances involved in a specific case. This article provides insight into the varying interpretations, definitions, and applications of the concept of disability.

Thursday, August 26, 2010

Five AP judges suspended for copying

Hyderabad: Five judges of the Andhra Pradesh subordinate judiciary were suspended by the state’s high court on Wednesday for allegedly cheating in the LLM exams, which were held at the Arts College of Kakatiya University in Warangal.



The incident took place on Tuesday. One of the judges was found copying from a law book hidden under his answersheet. Written slips and pages torn from textbooks were seized from other judges. The copying material was confiscated by university invigilators who stopped the judges from writing any further. The judges were pursuing the LLM course through the distance mode from Kakatiya University; the degree helps judges gain increments in their career. Those placed under suspension are: K Ajitsimha Rao, senior civil judge, Ranga Reddy district; M Kistappa, principal senior civil judge, Anantapur; P Vijayendar Reddy, second additional district judge, Ranga Reddy district; M Srinivasachary, senior civil judge in Bapatla of Guntur district; and Hanumantha Rao, additional junior civil judge in Warangal.According to N Manohar, the university’s additional controller of examinations, the candidates were taking their exams in Room No 102 when a team headed by him made a surprise visit.
The judges were caught on camera copying from books, smuggled notes, and from each other. After learning about the incident, the HC suspended the five from service pending an inquiry. The HC will soon launch disciplinary proceedings against the judicial officers, sources said.
The Warangal Bar Association said the entire episode was a blot on the judiciary. “The judiciary is the final recourse for the people to get justice, and if the judges indulge in this kind of malpractice, how can you trust the judgment of the courts?” asked Ravi Kumar of the association.

Chargesheet against Mayawati in DA case ready, CBI tells SC

New Delhi: The clock has turned full circle for Mayawati, with CBI, ending a brief period of ambiguity, telling the Supreme Court that there was a fit case for prosecution of the UP chief minister in a disproportionate assets case.

In an affidavit, the investigating agency contested Mayawati’s argument that CBI was harassing her despite the Income Tax Appellate Tribunal (ITAT) endorsing her contention that the disproportionate assets she allegedly owned were actually gifts received by her. CBI argued that ITAT findings were based on assumptions and conjectures whereas the evidence collected by the agency was unimpeachable.
In April this year, attorney general G E Vahanvati told the SC that CBI would consider her April 20 representation protesting CBI’s stubbornness in persisting with the DA case against her despite the clean chit from the I-T department. The matter comes up for hearing on Monday.
As is typical of the cases concerning Mayawati, the latest turn in the DA case is being seen through the prism of her equations with the Centre. CBI’s willingness to consider her plea to accept I-T department’s certificate of innocence to her came at a time when Centre needed BSP’s support in the trial of strength with the Opposition over cut motions. On April 27, BSP voted with the UPA against the cut motion brought by BJP and Left.
Its rejection of I-T department’s finding coincides with escalation of tension between Congress and BSP, with Rahul Gandhi joining the protest against police firing on farmers resisting acquisition of land for Mayawati’s dream project Yamuna Expressway.
The renewed hostility between the two sides is also said to be the reason why this time Congress preferred to have an agreement with the BJP to secure the passage of the nuclear liability bill on Wednesday rather than strike deals with BSP, SP and RJD.
Countering Mayawati’s argument, the CBI, in its affidavit before the apex court, argued that ITAT’s finding, which had already been appealed against in the Allahabad High Court, could not be cited as an evidence in a criminal case in which the investigation had been completed and the agency was ready with the chargesheet against her.