Saturday, April 30, 2011

Qadhafi encouraging mass rape: U.S. official

A top United States official has alleged that Libyan leader Colonel Muammar Qadhafi supplied Viagra, a drug to treat sexual impotence, to his forces to encourage them to commit mass rape.

Susan Rice, U.S. Ambassador to the United Nations, reportedly brought up the Viagra issue “during a discussion about whether there is moral equivalence between the Qadhafi forces and the rebels”.

Media reports said her statements were based on claims by the Al Jazeera news channel last month that “Libya-based doctors... had found Viagra in the pockets of pro-Qadhafi soldiers”.

The Guardian quoted an unnamed diplomat as saying “I was in the room when she mentioned Viagra... She listed human rights abuses by Gaddafi's forces, including snipers shooting children in the street and the Viagra story.” The report added that Ms. Rice was “trying to persuade doubters that Libya was not just a civil war and that Qadhafi was encouraging human rights abuses.”

Diplomatic sources reportedly said that no one else present at the meeting responded to the allegation and it “did not cause a stir.”

However contradicting Ms. Rice, NBC News carried comments by U.S. military and intelligence officials to the effect that there was no evidence that Colonel Qadhafi's forces were being supplied Viagra and engaging in systematic rape in rebel areas.

According to media reports, “The officials added that although rape has been used as a weapon in many other African conflicts, they have not seen reports of that coming from Libya.”

Apart from the political angle, Ms. Rice's claim also begs the medical question of what effects the drug has on the human body. Speaking to The Hindu a doctor said, “Viagra does not affect libido, it only acts locally. Further it has a limited period of action.”

She added that the link between Viagra and sexual drive was “very weak,” and concurred that it would only result in mass rape in this case if the soldiers were anyway intent on committing rape and at the same time suffering from problems relating to sexual impotence.

Consent for divorce can be withdrawn even after stipulated period: court

Consent for divorce by ‘mutual consent' can be withdrawn by either the wife or the husband even after the expiry of the stipulated 18-month period and in such cases a decree for divorce cannot be granted, the Supreme Court has held.

A Bench of Justices D.K. Jain and H.L. Dattu held that mutual consent as contemplated under Section 13-B (2) of the Hindu Marriage Act should continue until the divorce decree was passed by court.

Writing the judgment, Justice Dattu said: “Marriages are made in heaven, or so it is said. But we are, more often than not, made to wonder what happens to them by the time they descend down to earth. Though there is a legal machinery in place to deal with such cases, these are perhaps the toughest for the courts to deal with. Such is the case presently before us.”

Interpreting 13-B (2), the Bench said: “From the language of this section, as well as the settled law, it is clear that one of the parties may withdraw his/her consent anytime before the passing of the decree. The most important requirement for grant of divorce by mutual consent is free consent of both parties.”

Unless there was a complete agreement between the husband and the wife for dissolution of marriage and unless the court was completely satisfied, it could not grant a decree for divorce by mutual consent. “Otherwise, in our view, the expression ‘divorce by mutual consent' would be otiose.”

The Bench said: “The 18-month period for withdrawal of consent was specified only to ensure quick disposal of cases of divorce by mutual consent and not to specify the time period for withdrawal of consent.”

In the instant case, Hitesh Bhatnagar and his wife Deepa, after the birth of a girl child, applied for divorce by mutual consent in a court in Gurgaon, Haryana. Though Deepa withdrew her consent after the stipulated 18 months, the trial court dismissed the application stating that since there was no ‘mutual consent' divorce could not be granted. The Punjab and Haryana High Court upheld this judgment.

Dismissing Hitesh's appeal against this order, the Supreme Court pointed out that non-withdrawal of consent before the expiry of 18 months was irrelevant as Deepa had time and again expressed her willingness to live with her husband for the sake of the girl child. In the light of these facts, it would be a travesty of justice to dissolve this marriage as having broken down. On the appellant's plea that the Court should exercise its extraordinary power under Article 142 (to do substantive justice), the Bench said such a power had been vested in it with implicit trust and faith, and extraordinary care and caution had to be observed while exercising this jurisdiction.

The Bench placed on record its appreciation of the efforts made by counsel Harshvir Pratap Sharma to bring about an amicable settlement between the parties.

67 ‘Bombay’ laws changed to Gujarat acts

Ahmedabad: Gujarat ended a 50-yearold hangover of the erstwhile Bombay state and replaced the Bombay tag borne by 67 laws with the Gujarat label. So drinking laws under the Bombay Prohibition Act, 1949, will now be the Gujarat Prohibition Act.
Chief minister Narendra Modi announced on Saturday, a day before Gujarat is to celebrate 50 years of its split from the Bombay state, that the laws would be rechristened as Gujarat acts and all official procedures would follow these names.
He said that the state assembly had on March 28 this year passed a resolution which was ratified by governor Dr Kamla. The Gujarat government put out an extraordinary gazette on April 15 called The Gujarat Short Titles (Amendment) Act 2011 (Gujarat act no 15 of 2011).
Some of the popular and frequently used laws, apart from prohibition, are those of the Bombay land revenue code 1979; Bombay Police Act, 1951; and Bombay Provincial Municipal Corporation Act, 1949.

Friday, April 29, 2011

Pataudi moves HC against BCCI

Mumbai: Former India captain Mansur Ali Khan Pataudi has moved the Bombay High Court against the Board for Control of Cricket in India (BCCI) seeking appointment of an arbitrator, after the latter discontinued his services as a member of the IPL Governing Council.He has also claimed an amount of Rs. 1.16 crore as his annual fees for the year 2010 from the BCCI. The application, which came up for hearing on Thursday, was adjourned for a week.
The application filed by Delhi based Pataudi says that an arbitrator should be appointed as the BCCI has failed to abide by the clause of the agreement by which he (Pataudi) was appointed in February 2008.
He has also claimed that the agreement was to come in effect from October 1, 2007. As per the agreement clause, Pataudi would offer his expertise in all Governing Council meetings and other matters. The agreement was for five years, during which BCCI had agreed to pay an annual fees of Rs 1 crore, net of taxes, said the application. The agreement stated that if either of the parties wanted to terminate the contract, they would have to invoke the arbitration clause of the Agreement.
Pataudi’s application says that he received Rs 50 lakh on August 11, 2008 for the period October 2007 to September 2008. “During e-mail correspondence, BCCI assured that it will pay the taxes,” said the application. However, “The respondent (BCCI) was and is not ready to fulfill his contractual obligation,” stated the application.
On December 24, 2008, Pataudi sent another notice to the BCCI, asking the board to pay Rs 1 crore net and bear all the taxes. He further requested them to reimburse service tax and income tax paid by him.
Pataudi also attached a bill of Rs 1.16 crore along with the notice for rendering his services and tax borne by him.
The BCCI, on October 1, 2010, sent a letter to Pataudi amending the earlier contract and there by terminating his contract as per the amended terms passed in the general body meeting.
Pataudi, before moving the HC, sent a letter to the BCCI in January 2011, suggesting that Dr BP Saraf, former chief justice of Jammu and Kashmir, be appointed as arbitrator.

Bail plea of 2 CWG bigwigs rejected

New Delhi: A trial court on Friday denied bail to two former CWG Organising Committee officials—Lalit Bhanot and V K Verma—arrested in connection with alleged irregularities in awarding a Rs 107 crore contract to a Swiss firm for the CWG games held last year.
“Bail applications of both the accused are dismissed. They are remanded to judicial custody,” the court said. OC’s former Secretary General Bhanot and its ex-Director General V K Verma had moved their bail plea saying the CBI had deliberately added harsher penal provision of section 467 (forgery of valuable security) of the IPC against them so that they could get 90-days to file the charge sheet.
The defence counsel, while arguing on the bail plea before Special Judge Talwant Singh, said that section 467 of the IPC has been added as this offence is punishable upto life term. They said that CBI should have filed the charge sheet against the duo within 60-days, which has already expired, but they have added section 467 of IPC so that they could get 90 days time to file the police report.
They argued that CBI has not told the court about the valuable securities. Countering the defence counsel, CBI prosecutor V K Sharma said that probe in the case is going on.
Bhanot and Verma are presently in judicial custody till May 5. They were arrested by CBI on February 23 for alleged irregularities in awarding Rs 107-crore contract to the Swiss firm in procuring the Timing, Scoring and Result (TSR) system for the Commonwealth Games.
20B (criminal conspiracy) and 420 (cheating) of IPC and various sections of Prevention of Corruption Act, along with Switzerland-based firm Swiss Timing Ltd and other unnamed persons.
OC Chairman Suresh Kalmadi and two other officials were also arrested in the same case on April 25. They are presently in CBI's custody till May 4.

SC notices to Gujarat, CBI in ashram deaths case

Ahmedabad:The Supreme Court on Friday issued notices to the state home department and CBI asking them to give reason as to why the petition demanding an independent probe in the mysterious death of two children at the Asaram Ashram Gurukul should not be admitted.
Cousins — Dipesh and Abhishek Waghela — were found dead in July 2008 on the Sabarmati riverbank right behind the ashram with their bodies completely mutilated. Since the children were staying at the Motera gurukul, parents demanded a thorough probe against the ashram’s office bearers and accused them of indulging in black magic at the behest of the spiritual leader, which might have been the cause of death.
The parents sought a CBI probe from the Gujarat high court. The court simultaneously heard the petition filed by seven ashram office bearers who demanded quashing of the FIR against them. While Justice Akil Kureshi refused to hand over the probe to CBI, he struck down the culpable homicide section (304 of IPC) from the FIR which has stringent penalty and permitted the probe agency — CID (crime), to retain the rash and negligent act section (304A), 34, 114 of IPC along with section 23 of the Juvenile Justice Act. The high court concluded that the seven sadhaks should not be considered accused for culpable homicide, but they prima facie seemed accused of showing negligence which resulted in death, for the kids were in their custody.
Parents of the deceased kids, Praful and Shantilal Waghela, approached the SC challenging the high court’s decision. After a preliminary hearing of their appeal, a bench of Justice P Sathasivam and Justice B S Chauhan issued show-cause notice to the Gujarat government and CBI at the stage of admission.

DIG Sanjiv Bhatt may face disciplinary action

Ahmedabad: The police academy at Karai has charged DIG Sanjiv Bhatt of indiscipline. In a report sent to the DGP office, the academy to which all police training colleges are affiliated, has charged Bhatt of using government staff and vehicles for personal work. The DGP got this report on Friday. The report says that on August 31, Bhatt was posted at the SRP training school in Sorath, Junagadh. He reported on duty at the new office on September 1, 2010. On February 14 this year, Bhatt asked for 54-days leave citing no particular reason. But the DGP office said that his leave was under consideration and did not clear the request. However, Bhatt went on medical leave.
The investigation report also alleges that Bhatt used official vehicles and staff of his Junagadh job while being in Ahmedabad and also claimed travel and dearness allowance for his unauthorized absence from the office in Sorath. He has been charged with dereliction of duty and recommended for suspension, says the order. The DGP office is expected to move this file with a noting to the home ministry.

Contempt of court case: Lawyer goes into hiding

Ahmedabad: After being slapped with 12 cases for contempt of court, advocate Devesh Bhatt has gone underground.
The police reported to the Gujarat high court on Friday that the lawyer could not be traced either at his residence or his work place despite various efforts.
The police informed the division bench of justices D H Waghela and K A Puj that advocate Bhatt remained untraceable even after tight surveillance on part of police at different places, which the lawyer frequented. On perusal of the affidavit, the court directed the police to find out movable and immovable property belonging to the lawyer, particularly his bank accounts.
During last hearing, the court contemplated the seizure of advocate Bhatt’s property in case of non-execution of the non-bailable warrant issued against him. The court has asked the police to come up with details regarding the lawyer’s property and kept further hearing after the summer vacation; said amicus curiae in this case, advocate Asim Pandya. Meanwhile, the division bench issued notice to the alleged contemnor in 11 different cases. The court issued bailable warrants of Rs 20,000 in each of the case, and the lawyer has to furnish bail bond of equal amount in all the cases to avoid arrest.
Advocate Bhatt has been issuing legal notices to judicial officers for quite some time. He has also filed damage suit against certain judicial officers. This led the high court to initiate contempt of court proceeding against him. After the bench issued bailable warrant, advocate Bhatt dashed off notices to them also along with the amicus curiae.

SC restrains 19 leaseholders from mining in Karnataka

NEW DELHI: The Supreme Court today restrained 19 mining lease holders in Bellary-Hospet region of Karnataka from carrying out any mining activities, including transportation of extracted iron ores, till its further orders.

Acting on the two reports of the apex court-appointed Central Empowered Committee (CEC), which has found large scale of illegal mining in Bellary Forest area, the special forest bench stayed any further mining operations in the 19 mines mentioned in it.

"We make it clear that there would be no mining or transportation of mined materials (in 19 mines) till further order," the bench headed by Chief Justice S H Kapadia said while passing an interim order.

The bench said it would also consider about the rest 68 mining lease holders, mentioned in the third and fourth list of the CEC report for violating environmental norms in mining operations, in its next hearing.

The apex court said as around 30 of them have got some interim orders from the Karnataka High Court, so it would decide about them after the CEC files transfer petition against those firms here.

"There cannot be two parallel orders, one allowing to mine and the other to stop. We would have to call all of them and asked to vacate," said the bench which also consisted of justices Aftab Alam and K S Radhakrishnan, while declining the request of amicus curaie to restrain the 68 firms also.

Striking Air India pilots remain defiant; ready to go to jail

MUMBAI: Despite the Delhi High Court ordering the striking Air India pilots to get back to work and the airline management threatening stern action and declaring a lock-out, the 850-plus agitating pilots today said they will go ahead with the stir and are willing to go the jail.

"We are more than willing to go jail. Nearly 31,000 Air India employees will also be ready to court arrest because we are serious about saving the national carrier from ruin," Rishab Kapur, General Secretary of the banned Indian Commercial Pilot Associations ( ICPA), told reporters here this evening. The strike entered its third day today.

He demanded a CBI probe into "corruption" in the airline under the leadership of Managing Director Arvind Jadhav.

"We are willing to get back to work provided the Government assures that they will look into the corruption issue raised by us and order a CBI enquiry."

Kapur also demanded to make public portion of the Niira Radia tape that allegedly speaks about the hidden agenda of the Air India management to sell the Government-run airline to a private party.

However, when the media insisted on revealing the name of the private company, Kapur declined to do so and merely said "listen the Niira Radia tape".

"The scam in Air India under the present management is bigger than the 2G scam. We want a CBI probe and sacking of the dictatorial Chairman," he said.

On the AI management's threat to slap ESMA (Essential Service Management Act) and declare a lock out at the company if the pilots do not call off the strike by 5 pm today, Kapur said it seems that the management is "completely confused about how to treat the issues we have raised".

ESMA can only be invoked by the government not a company, he said. Also, since over half a dozen airlines are operating in the country, how can Air India's services be considered as an essential service, he asked.

Asked about pilots disobeying the court order and inviting contempt proceedings, Kapur said he will be present in the Delhi High Court on Monday.

On May 2, the court is scheduled to hear the Air India management's petition seeking contempt of court proceedings against the striking pilots.

Julian Assange on Prime Minister Manmohan Singh

Julian Assange on Prime Minister Manmohan Singh's reaction to the India Cables


Pre-impeachment probe against Dinakaran stayed

The Supreme Court on Friday stayed the pre-impeachment probe by a Rajya Sabha-appointed panel into allegations of judicial misconduct and corruption against Sikkim High Court Chief Justice P D Dinakaran.
The apex court passed the order on a plea by Justice Dinakaran, expressing apprehension of a biased probe against him by the three-member panel, comprising Justice Aftab Alam of the apex court, Karnataka High Court Chief Justice J S Khehar and senior advocate P P Rao.
Senior advocate Amrendra Saran, appearing for the 61-year-old judge, pleaded before the apex court bench of justices H S Bedi and C K Prasad that Mr Rao was part of a delegation of lawyers, which had met the erstwhile Chief Justice of India K G Balakrishnan in 2009 to oppose his (Dinakaran’s) elevation to the Supreme Court.
Inclusion of advocate Mr Rao in the probe panel indicates the possibility of bias in probe against the judge, he said.
The bench after hearing his contentions, stayed the panel’s proceedings and issued notices to it, its chairman Justice Aftab Alam and advocate Rao.
Justice Dinakaran, in his petition to the apex court, said, “If there is reasonable likelihood of bias it is in accordance with natural justice and common sense that the judge likely to be so biased should be incapacitated from sitting. The basic principle underlying the rule is that justice must not only be done but must also appear to be done,” he said.
Challenging the panel’s decision of rejecting his plea, the judge pleaded that it was in violation of natural justice.
“The impugned order passed by the Judges Inquiry Committee allowing a biased member to continue to serve as a member of the committee is hit by the principles of natural justice and, hence, violative of Article 14 of the Constitution,” he said.
He pleaded that the apex court should quash the order passed by the panel on the issue of Rao’s recusal.
The panel had on April 24 rejected Dinakaran’s plea against Rao saying the objection should have been raised at the start of the proceedings. Rao did not participate in the meeting when this application was discussed.
The panel had also rejected his plea of staying the proceedings till he is supplied with all documents in the case.
Charges against Justice Dinakaran, who is due to retire on May 9, 2012, were levelled when he was Chief Justice of the Karnataka High Court. He was subsequently transferred to the Sikkim High Court.
According to the judge, the panel is acting in contravention of Article 124 and 121 by raking up personal issues against him and his family members although the said constitutional provisions expressly barred any such reference of a high court or Supreme Court judge’s personal life.
The panel, appointed by Rajya Sabha chairperson Hamid Ansari after the House initiated impeachment motion against him, had asked Dinakaran to respond to the 16 charges framed against him.
The charges against Dinakaran include possession of wealth disproportionate to his known sources of income and illegal encroachment on public property and land belonging to Dalits and other weaker sections.
He is also accused of having five Tamil Nadu Housing Board plots in the name of his wife and two daughters, benami transactions, acquiring and possessing agricultural holdings beyond the ceiling fixed by the TN Land Reforms Act 1961, destruction of evidence, undervaluation of sale agreements, evasion of stamp duty and illegal constructions.
He has also been accused of resorting to irregular and dishonest administrative actions by fixing rosters of judges to facilitate dishonest judicial decisions while he was the Chief Justice of Karnataka High Court.


Pre-impeachment probe against Dinakaran stayed

The Supreme Court on Friday stayed the pre-impeachment probe by a Rajya Sabha-appointed panel into allegations of judicial misconduct and corruption against Sikkim High Court Chief Justice P D Dinakaran.
The apex court passed the order on a plea by Justice Dinakaran, expressing apprehension of a biased probe against him by the three-member panel, comprising Justice Aftab Alam of the apex court, Karnataka High Court Chief Justice J S Khehar and senior advocate P P Rao.
Senior advocate Amrendra Saran, appearing for the 61-year-old judge, pleaded before the apex court bench of justices H S Bedi and C K Prasad that Mr Rao was part of a delegation of lawyers, which had met the erstwhile Chief Justice of India K G Balakrishnan in 2009 to oppose his (Dinakaran’s) elevation to the Supreme Court.
Inclusion of advocate Mr Rao in the probe panel indicates the possibility of bias in probe against the judge, he said.
The bench after hearing his contentions, stayed the panel’s proceedings and issued notices to it, its chairman Justice Aftab Alam and advocate Rao.
Justice Dinakaran, in his petition to the apex court, said, “If there is reasonable likelihood of bias it is in accordance with natural justice and common sense that the judge likely to be so biased should be incapacitated from sitting. The basic principle underlying the rule is that justice must not only be done but must also appear to be done,” he said.
Challenging the panel’s decision of rejecting his plea, the judge pleaded that it was in violation of natural justice.
“The impugned order passed by the Judges Inquiry Committee allowing a biased member to continue to serve as a member of the committee is hit by the principles of natural justice and, hence, violative of Article 14 of the Constitution,” he said.
He pleaded that the apex court should quash the order passed by the panel on the issue of Rao’s recusal.
The panel had on April 24 rejected Dinakaran’s plea against Rao saying the objection should have been raised at the start of the proceedings. Rao did not participate in the meeting when this application was discussed.
The panel had also rejected his plea of staying the proceedings till he is supplied with all documents in the case.
Charges against Justice Dinakaran, who is due to retire on May 9, 2012, were levelled when he was Chief Justice of the Karnataka High Court. He was subsequently transferred to the Sikkim High Court.
According to the judge, the panel is acting in contravention of Article 124 and 121 by raking up personal issues against him and his family members although the said constitutional provisions expressly barred any such reference of a high court or Supreme Court judge’s personal life.
The panel, appointed by Rajya Sabha chairperson Hamid Ansari after the House initiated impeachment motion against him, had asked Dinakaran to respond to the 16 charges framed against him.
The charges against Dinakaran include possession of wealth disproportionate to his known sources of income and illegal encroachment on public property and land belonging to Dalits and other weaker sections.
He is also accused of having five Tamil Nadu Housing Board plots in the name of his wife and two daughters, benami transactions, acquiring and possessing agricultural holdings beyond the ceiling fixed by the TN Land Reforms Act 1961, destruction of evidence, undervaluation of sale agreements, evasion of stamp duty and illegal constructions.
He has also been accused of resorting to irregular and dishonest administrative actions by fixing rosters of judges to facilitate dishonest judicial decisions while he was the Chief Justice of Karnataka High Court.

SC refuses to lift stay on criminal proceedings against Yeddyurappa

NEW DELHI: In a reprieve for Karnataka chief minister BS Yeddyurappa, the Supreme Court on Friday refused to quash a Karnataka high court order which had stayed criminal proceedings against him and his family members in a corruption case.

A bench of justices VS Sirpurkar and TS Thakur dismissed the petition filed by two advocates challenging the stay granted by the high court against a trial court order which had taken cognisance of the complaint filed against the Chief Minister and his family.

The bench, while dismissing the petition, asked the high court to consider the application moved by the complainant, if any, for vacation of the stay not later than six weeks.

Advocate Sirajin Basha had moved the apex court through advocate Prashant Kumar challenging the March 29 Karnataka high court order which had allowed the petition filed by Yeddyurappa's son-in-law Sohan Kumar.

Basha had sought directions to lift the stay on the criminal proceedings against Yeddyurappa and his family members in a complaint case related to irregularities in denotification of land.

Sohan had challenged the lower court order for further proceedings, including the Lokyukta probe, against them.

There are five complaints filed against the chief minister's family members and the governor had accorded sanction to prosecute for offences committed under IPC section 405 (criminal breach of trust) and under provisions of the Prevention of Corruption Act.

The additional civil and sessions judge had on March 24 postponed prosecution in the complaint and ordered Lokayukta police to probe the matter and submit the final report of the inquiry by May 4. 

RUDRA v. DIV.MNGR,NATIONAL INSURANCE CO.LTD.&ANR. [2011] INSC 326 (18 March 2011)

Judgement
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO.2695 OF 2011 (Arising out of Special Leave Petition (C) No.33820/2010)


Rudra ...Appellant(s)
Versus
Divisional Manager, ...Respondent(s) National Insurance Co. Ltd. & Anr.


GANGULY, J.

1. Application for deletion of respondent No.2 from the array of parties is allowed.


2. Leave granted

3. On 15.12.2002, at about 1.30 pm, the appellant was walking on the road when a BMTC bus (bearing 1 No. KA-01-A-3638) came in high speed and dashed against the appellant, as a result of which the appellant sustained multiple injuries and was admitted in hospital for operation and treatment.


4. The appellant was aged 25 years and was working as a coolie. He filed a claim petition under Section 166 of the Motor Vehicles Act, 1988 claiming Rs.4 lacs as compensation with interest @ 18%. He also claimed that he was earning a monthly income of Rs.4000/- p.m.


5. Apparently, when the appellant was admitted to hospital immediately after the accident, he was conscious and well oriented and his breath smelled of alcohol. Hence, the respondent contended that the accident occurred solely due to the negligence of the appellant.


6. However, the Tribunal did not accept this argument of the respondent. It held that merely 2 because the appellant had consumed alcohol did not mean that the driver of the vehicle did not need to drive the vehicle cautiously. Thus, the Tribunal concluded that the accident occurred due to the rash and negligent driving of the offending vehicle as a result of which the appellant sustained injuries.


7. The Tribunal concluded that as the appellant was a coolie, his daily earnings would be Rs.100/- per day, as the appellant's claim that he was earning Rs.4000/- p.m. was unsupported by documentary evidence. The Tribunal considered the fact that the appellant had been in hospital for at least a month and, therefore, it awarded an amount of Rs.3000/- towards loss of income during treatment period. The doctor had assessed disability of the appellant's left lower limb at 58% and that of the whole body at 29%. Considering the nature of the injuries (fracture of the ankle and foot), it awarded Rs.15,000/- towards pain and  suffering, Rs.2000/- towards medical expenses, and Rs.3000/- towards nourishment. The Tribunal also awarded global compensation of Rs.15,000/- towards loss of amenities as the appellant could not normally carry out his occupation with the weight of the body on it. Thus, total compensation amounted to Rs.40,000/-, payable at 8% p.a. rate of interest.


8. On appeal before the High Court of Karnataka, the Court took the view that assessment of disability by the doctor of the left lower limb at 58% and the whole body at 29% appeared to be a bit of an exaggeration. Thus, it reassessed the whole body disability at 15% for calculating compensation payable towards loss of future income. Accordingly, adopting a multiplier of 18 since the appellant was aged 25 years, it computed loss of future income (which had not been awarded by the Tribunal at all) at Rs.97,200/- (Rs.3000 X 12 X 18 X 15/100). However, it enhanced compensation for pain and 4 suffering to Rs.20,000/-, Rs.5000/- for conveyance, nourishing food and attendant charges, Rs.9000/- towards loss of income during period of treatment (taking income of appellant at Rs.3000/- p.m. for 3 months). Accordingly, the award of the Tribunal was modified and compensation was enhanced to Rs.1,48,200/-, with interest at 6% p.a.


9. Still dissatisfied with the compensation amount awarded, the appellant filed the present appeal before this Court. Having gone through the records and after hearing the parties, we are of the view that the appeal deserves to be allowed.


10. When the doctor had assessed whole body disability at 29%, and the same was accepted by the Tribunal, the High Court erred in rejecting the same and instead of presuming disability of 15% of the whole body. Hence, we re-compute loss of future income by considering disability at 29%, which 5 amounts to Rs.1,87,920/- (Rs.3000 X 12 X 18 X 29/100).

11. The doctor, in his evidence, has also stated that the nature of disability is such that the appellant cannot work as a coolie or do any other manual work. Hence, we award compensation for loss of amenities to Rs.40,000/-, for pain and suffering to Rs.30,000/-, for medical expenses to Rs.10,000/- and for conveyance, nourishment and attendant charges to Rs.20,000/-.

12. The break-up of compensation is as follows:

Pain and suffering - Rs.30,000/- Loss of amenities - Rs.40,000/- Medical expenses - Rs.10,000/- Conveyance, nourishment and attendant charges - Rs.20,000/- Loss of future income - Rs.1,87,920/- Loss of income during treatment - Rs.9,000/- TOTAL - Rs.2,96,920/- 

13. Thus, total compensation amounts to Rs.2,96,920/-, which is rounded off to Rs.3,00,000/-. The impugned judgment of the High Court is hereby modified, awarding Rs.3,00,000/- with interest of 6% p.a. on the enhanced sum, payable from the date of the claim petition till realization.

14. The appeal is accordingly allowed.

15. No order as to costs.

.......................J.

(G.S. SINGHVI) .......................J.

Thursday, April 28, 2011

R. RAMACHANDRA NAIR v. THE DY.S.P.VIGILANCE OF POLICE & ANR. [2011] INSC 296 (28 March 2011)

Judgement 

IN THE SUPREME COURT OF INDIA 

CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 792 OF 2011 (Arising out of S.L.P. (Crl.) No. 9818 of 2010) 

R. Ramachandran Nair .... Appellant(s) 

Versus T

he Deputy Superintendent Vigilance Police & Anr. .... Respondent(s)

P. Sathasivam, J.
1) Leave granted.
2) This appeal is directed against the impugned judgment and order dated 12.07.2010 passed by the High Court of Kerala at Ernakulam in Criminal R.P. No. 1606 of 2010 whereby the High Court dismissed the petition filed by the appellant herein seeking discharge from the criminal case pursuant to a charge sheet filed in the Court of the Enquiry Commissioner and Special Judge, Thrissur, by the Vigilance Police Department.
3) Brief facts:
1 (a) The Government of Kerala was trying to establish a Sanskrit University in the State from the year 1972 onwards. On 15.07.1991, the appellant was appointed as Special Officer for creating the first Sanskrit University in the State. On 16.01.1993, the State issued a Government Order directing the District Collector, Ernakulam to acquire the land for the establishment of the University. The entire land of 42.5 acres, so acquired in Kalady (the holy birth place of Sree Sankaracharya) in Ernakulam District which was handed over to the University by the District Collector of Ernakulam for establishing the University consisted of low-lying and water- logged paddy fields and any development work could be started only after it was filled up with earth. Before starting the work of filling up, the appellant, who was functioning as the Chief Secretary to State Government at the State Headquarters, had consulted several experts in the field including the Chief Engineer of the State Public Works Department (hereinafter referred to as PWD") who was actually brought to the site. The appellant filled 42.5 acres of waterlogged land with earth brought from distance. An 2 amount of Rs.5,925/- was spent for filling up of every one cent of the water logged land. (b) From 01.01.1994 to 30.06.1996, the appellant was appointed as the first Vice-Chancellor of the University. On 18.12.1996, an FIR being Crime No.9 of 1996 was registered in the Vigilance Police Station, Ernakulam against the appellant and four other persons under Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988 (hereinafter referred to as "the PC Act") and Sections 120-B and 463 of the Indian Penal Code (in short "IPC"). The allegation against the appellant was that the work of filling of earth in the land acquired for the said University was done in an irregular manner and he obtained a pecuniary advantage of Rs. 59,51,543/- with the contractors thereby causing corresponding wrongful loss to the University.
(c) During May-June, 1997 the Vigilance Department examined the site relating to the alleged earth-filling during the years 1993 and 1994. This examination was done after three years and after the occurrence of six monsoons. Due to 3 the impact of rains during six monsoons during that time, the field had got thoroughly consolidated.
(d) On 30.06.2005, a charge-sheet was filed in the Court of the Enquiry Commissioner and Special Judge, Thrissur with a delay of eight and a half years after the F.I.R. and without obtaining the previous sanction of the Syndicate of the University under Section 50(2) of the Sree Sankaracharya University of Sanskrit Act, 1994 (hereinafter referred to as "the Act"). In the FIR, the pecuniary loss caused to the University was indicated as Rs.59,51,543/- whereas in the charge-sheet it has come down to less than 5% of the originally estimated amount, i.e., Rs.2,68,358/-. (e) In the meanwhile, on 03.04.2006, the Principal Secretary to the State Government directed the Director, Vigilance and Anti Corruption Bureau to withdraw the cases against the appellant. In this communication, the State has admitted that the conduct of the appellant was in good faith and that only because of the speedy actions taken by him, the University had become a reality within a short period of time and that the 4 appellant is eligible for the protection under Section 50(3) of the Act. (f) On 19.12.2008, the appellant filed an application under Section 239 of the Criminal Procedure Code (in short "the Code") being CMP No. 2933 of 2008 in CC No. 31 of 2005 in the Court of Enquiry Commissioner and Special Judge, Thrissur for discharge. By order dated 29.08.2009, the Special Judge dismissed the abovesaid application on the ground that the appellant is not entitled to get the protection of Section 50 of the Act as being the Vice-Chancellor, the appellant was a public servant. (g) Against the said order, the appellant preferred Criminal Revision Petition No. 1606 of 2010 before the High Court of Kerala. By order dated 12.07.2010, the High Court dismissed the revision filed by the appellant herein. The said order is under challenge in this appeal.
4) Heard Mr. K.V. Viswanathan, learned senior counsel for the appellant and Mr. Jaideep Gupta, learned senior counsel for the respondents.
5 5) The only allegation on the appellant was that while functioning as the Vice-Chancellor of the University he was found guilty for filling of earth in the land acquired for the University in a most perfunctory and irregular manner with ulterior motive by not recording the measurements correctly, showing inflated figures of measurements in the records and thereby committed falsification of accounts and forgery, criminal breach of trust and cheated the Government by corrupt or illegal means and committed misconduct, obtained undue pecuniary advantage of Rs.2,68,358/-, and he being the first accused has committed offence punishable under Sections 13(1) (d) and 13(2) of the PC Act and Sections 409, 468, 477A and 120-B of IPC. 6) Mr. K.V. Viswanathan, learned senior counsel for the appellant, at the foremost, submitted that in view of Section 50(2) of the Act, without the previous sanction of the Syndicate of the University, the prosecution cannot be allowed to proceed against the appellant. He pointed out that Section 50(2) of the Act stipulates "sanction of the Syndicate". He further highlighted that the prosecution, which has been 6 initiated without the sanction of the University, ought not to be allowed to continue against the appellant. He also submitted that inasmuch as even in 2006 the Government of Kerala, Vigilance (B) Department Thiruvananthapuram, after considering all the relevant materials, decided to withdraw the criminal proceedings against the appellant in the cases i.e. CC No. 21 of 2000 and CC No. 49 of 2000 pending before the Court of Enquiry Commissioner & Special Judge, Kozhikode and CC No. 31 of 2005 pending before the Court of Enquiry Commissioner & Special Judge, Thrissur, with the permission of the respective Courts. He also submitted that even on merits inasmuch as the appellant obtained the approval of the Chief Engineer of the PWD and accepted the lowest tender which was below the amount prescribed by the competent officer of the PWD i.e. Assistant Executive Engineer, there is no loss to the Government hence he cannot be held liable. 7) On the other hand, Mr. Jaideep Gupta, learned senior counsel for the respondents submitted that in view of the materials available, the appellant has not made out a case for discharge and he has to face the trial. He also submitted that 7 the plea of the appellant was considered and rejected by the trial Court as well as by the High Court, therefore, interference by this Court is not warranted. 8) We have carefully considered the rival submissions and perused all the relevant materials. 9) Insofar as the first issue, namely, whether or not a prosecution can be allowed to proceed in the face of Section 50(2) of the Act without the sanction of the Syndicate of the University, it is useful to refer the relevant provision which reads as:- "50. Protection of acts done in good faith-- (1) XXX (2) No suit, prosecution or other proceedings shall lie against any officer or other employee of the University for any act done or purported to have been done under this Act, or the Statutes or the Ordinances or the Regulations without the previous sanction of the Syndicate.
(3) XXX"
The headnote makes it clear that any act done in good faith is protected. The appellant, being Vice-Chancellor of the University, is one of the Officers of the University in terms of Section 23 of the Act. In that event, it is not in dispute that Section 50(2) is applicable to the appellant and in respect of any act done under the Act or Statutes or Ordinances or 8 Regulations, no suit or prosecution or other proceeding be initiated against him without the previous sanction of the Syndicate. Inasmuch as sub-Section 2 used the word "shall", previous sanction of the Syndicate is a pre-condition or mandate before initiating either civil or criminal prosecution. To put it clear, as per Section 50(2) of the Act, no prosecution will lie against the appellant without the previous sanction of the Syndicate. It is important to note that the allegations against him related to actions which he had taken while he was discharging his duties as an Officer of the University, namely, the Vice-Chancellor of the University. A perusal of the FIR makes it clear that there was not even a whisper of an allegation or in the charge-sheet that the appellant had made any personal gain in the transaction. The allegation was only that the contractor who did the earth filling obtained an excess amount of Rs. 2,68,358/-. It is not clear why the prosecution has waited for nearly 81/2 years to file the charge-sheet or waited until the death of the contractor and until the Assistant Executive Engineer who prepared the quotation for the work and in-charge of the work got promoted as Executive Engineer 9 and then as Superintending Engineer and retired from service on superannuation and left the country for working in UAE before filing the chargesheet in the Court.
10) Apart from the above conclusion, in the light of the language used in sub-Section 2 which is mandatory in the absence of previous sanction of the Syndicate of the University, the prosecution cannot be launched or proceeded. It is not the case of the prosecuting agency that they obtained sanction from the Syndicate of the University which is the competent authority to sanction. In the light of the language used in sub-Section 2 and in the absence of previous sanction by the Syndicate of the University, we hold that the prosecution cannot be allowed to proceed, even otherwise, he being a Vice-Chancellor, acted diligently by following the procedure, no action could be initiated after a period of 8 years from the initiation of the complaint. 11) Coming to the second contention, namely, the stand of the Government which is reflected in the proceedings dated 03.04.2006, it is also useful to extract the decision of the Government of Kerala, Vigilance (B) Department which was 1 communicated by Principal Secretary to Government to the Director, Vigilance & Anti Corruption Bureau, Thiruvananthapuram which reads thus:- "GOVERNMENT OF KERALA No. 9575/B1/05/Vig. Vigilance (B) Department Thiruvananthapuram Dated 03.04.2006 From The Principal Secretary to Government To The Director Vigilance & Anti-Corruption Bureau Thiruvananthapuram Sir, Sub: Withdrawal of cases pending against Shri R Ramachandran Nair, former Vice-Chancellor, Sree Sankaracharya University of Sanskrit - Reg.
Ref. 1. Govt. letter of even No. dated 07.10.2005.

2. Your letter No. C5/SJK/16465/2000 dated 03.12.05 & 18.02.06.
I am directed to invite your attention to the references cited and to inform you that a further examination of facts in respect of the three cases viz. (CC No. 21/2000 and CC No. 49/2000) of the Court of Enquiry Commissioner & Special Judge, Kozhikode and CC No. 31 of 2005 of the Court of Enquiry Commissioner & Special Judge, Thrissur it is found that steps were taken by the University Centres at the earliest possible date and it was due to such speedy action that the University which was being contemplated for a very long time became a reality within such a short period of 1994-1996. As the former Vice-Chancellor had acted in good faith in the discharge of the functions imposed on him under the University Act, he is fully eligible for the protection of Section 50(3) of Sree Sankaracharya University of Sanskrit Act, 1994, which read as follows:- 50(3) "No Officer or other employee of the University shall be liable in respect of any such act in any civil or criminal proceedings if the act was 1 done in good faith and in the course of the execution of the duties or in the discharge of the functions imposed by or under this Act."
As the action taken by the former Vice-Chancellor was "in good faith" in all three cases, it is decided that prosecution shall be withdrawn in CC 21/2000 and CC No. 49/2000 of the Enquiry Commissioner & Special Judge, Kozhikode, and CC No. 31/2005 of the Enquiry Commissioner & Special Judge Court, Thrissur.
Hence, I am to request you to take urgent action to withdraw the cases in CC 21/2000 and CC No 49/2000 pending before the Court of Enquiry Commissioner & Special Judge, Kozhikode and CC No. 31/2005, before the Enquiry Commissioner & Special Judge, Thrissur, with the permission of the respective courts.
The action taken in matter may be intimated to Government immediately.
Yours faithfully Sd//- K.A. BHAGAVATHY AMMAL Additional Secretary For Principal Secretary to Government"
12) Perusal of the above communication at the highest level makes it clear that on examination of the entire facts in the 3 cases, namely, CC Nos. 21 and 49 of 2000 and CC No. 31 of 2005 which are pending before the Special Judge, Kozhikode and Thrissur respectively and the sincere and speedy action taken by the appellant as Vice-Chancellor of the University and also acted in good faith in the discharge of the function imposed on him under the Act, the Government requested the 1 Director Vigilance, Anti-Corruption Bureau to take action to withdraw all the 3 cases pending before the respective Courts. It is not clear, in spite of such decision at the highest level, namely, Chief Secretary to Government, no follow up action was taken before the concerned courts seeking permission to withdraw the criminal proceedings pending against the appellant. In terms of Section 114 of the Evidence Act, 1872 this Court may legitimately draw a presumption that the Government had taken a conscious decision exonerating the appellant even in 2006 and there is no reason to doubt the integrity of the appellant. 13) Apart from the legal issues which are in favour of the appellant, even on merits, prosecution cannot be allowed to proceed against the appellant. When the appellant was asked to take required steps for formation of the University under the Act, the Government allotted 42.5 acres of land which was water logged and any development work could be started only after it was to be filled up with earth. It is also available from the records that the estimate was prepared by the Assistant Executive Engineer and based on which tenders were called 1 for and it is not in dispute that the appellant accepted the lowest tender which is of lesser amount than the one prescribed by the Engineer. It can also be seen that before the work was started, the appellant had consulted several experts in the field including the higher officials of the State and actually brought them to the site regarding the filling up of the earth. Further, though in the FIR, the complainant had claimed that the appellant had obtained a pecuniary advantage of around Rs. 59,51,543/- whereas in the charge- sheet filed by the prosecution in the Court, it has come down to less than 5 per cent of the original estimate, nearly, Rs. 2,68,358/-, admittedly, there is no mention in the chargesheet about the huge difference in the calculation of the loss between the FIR and the chargesheet. Further, when the Government of Kerala decided to establish a University exclusively for Sanskrit in its State two decades ago, admittedly, nothing came out for a long time and only in the year 1991 the appellant was appointed as Special Officer for creating a University. It was pointed out that within two years the mission was completed and Sri Sankaracharya University 1 of Sanskrit was created and started functioning in November 1993 and in the next month i.e. in December 1993, the Government appointed him as the first Vice-Chancellor of the University and he assumed charge of the post with effect from January 1, 1994. He continued in the post for a period of 21/2 years i.e. till 30.06.1996. All these factual details clearly show that even on merits the respondents are not justified in continuing the criminal proceedings. Though all these legal and factual details have been projected before the Trial Court as well as the High Court, the same were not correctly appreciated and both the courts committed an error in dismissing his petition filed for discharge. With the abundant materials and in view of the non-compliance of statutory provisions mentioned above, we accept the claim of the appellant. For all these reasons, we are satisfied that the appellant has made a case for discharge from the criminal proceedings.
14) In these circumstances, the orders passed by the Enquiry Commissioner and Special Judge, Thrissur dated 29.08.2009 in CMP No 2933 of 2008 and CC No. 31 of 2005 and order of 1 the High Court dated 12.07.2010 in Crl. RP No. 1606 of 2010 are set aside, consequently, the appellant is discharged from all the allegations leveled against him. The appeal is allowed.
 .................................................J. 
(P. SATHASIVAM) 
 ...............................................J. 
(DR. B.S. CHAUHAN) 
NEW DELHI;  

RAJESH SINGH & ORS. v. STATE OF U.P. [2011] INSC 297 (28 March 2011)

Judgement Reportable
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 1160 OF 2005

Rajesh Singh & Ors. ... Appellants
Versus
State of U.P. ... Respondent

V.S. SIRPURKAR, J.


1. The judgment passed by the High Court allowing the appeal against acquittal and convicting the appellant for the offence under Section 302 read with Section 34, IPC is in challenge in this appeal.


2. The three appellants, Rajesh Singh (accused No.1), Najai Srivastav (accused No.2) and Mohan Singh (accused No.3) came to be tried by the trial Court on the allegation that they had committed murder of a young boy Deepak on 11.4.1993 in the evening at about 5 O'Clock. Deceased Deepak was the son of Virendra Kumar (PW-1). Virendra Kumar (PW-1) was a lawyer's clerk. When he and his brother S.K. Srivastav, an 2 advocate, were going for having `paan' at the paan shop near Pico centre belonging to accused No.1, Rajesh, they saw that the three accused persons were beating Deepak. Deepak was made to take the posture like a cock (murga) and two bricks were kept on his back. Rajesh was hitting him with those bricks and the hands and feet of the boy had been tied and accused Najai was hitting him with a can. When Virendra Kumar (PW-1) asked as to why his son was being beaten, it was told that Deepak had stolen some money. Virendra Kumar (PW-1) requested the accused persons to let the child go as they had already beaten him severely. However, Rajesh refused to leave him and threatened that if he does not go he would also be assaulted. This incident was seen by some others also. On this Virendra Kumar (PW-1) said that he would inform the police but waited. All the three accused persons dragged Deepak to house No.128/21, C-Block, Kidwai Nagar, Kanpur which was the house of accused No.3, Mohan Singh. They confined him inside and shut the door. Virendra Kumar (PW-1) and others kept on shouting from outside. After about half an hour, the three accused persons ran away. When Virendra Kumar (PW-1) and others went inside they saw that the boy was hung with a hook in the ceiling. His feet were dangling at the height of 4-5 feet from the floor and he was dead. Virendra Kumar (PW-1) then informed the police by lodging an FIR. 3

3. The investigation was taken up by Chandra Shekhar Yadav (PW-4). He reached the spot, did the necessary formalities and sent the body for autopsy. As many as five ante-mortem injuries were found on the dead body during the post-mortem which was conducted by Dr. Jugal Kishore Sharma (PW-3). These injuries were in the nature of large abraded contusions. On internal examination his hyoid bone was found fractured. As per the opinion expressed, the boy died due to asphyxia as a result of throttling. After the investigation, charge sheet was filed. The prosecution examined Virendra Kumar (PW-1), Shyam Ji Pandey (PW-2) as eye- witnesses while Dr. Jugal Kishre Sharma who had conducted autopsy on the dead body of deceased was examined as PW-3. In addition to this, police witnesses were also examined. The accused abjured the guilt. The trial Court, however, acquitted the accused persons dis-believing the eye witnesses and held that their presence was doubtful. He also held that the conduct of Virendra Kumar (PW-1) was unnatural. The trial Court also observed that the prosecution had failed to examine S.K. Srivastav advocate, another eye witness.

4. The State filed an appeal against this judgment and the High Court allowed the appeal convicting the three accused persons of the offence under Section 302 read with Section 34, IPC. That is how the appeal has come before us.

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5. It was vehemently argued by Shri Sanjay Jain, learned counsel for the appellants that this was a case where the medical evidence was contradictory with the evidence of eye witnesses. He also pointed out that the trial Court had given sound reasons and the High Court had not exercised the caution while upsetting the finding of acquittal handed out by the trial Court. The learned counsel also urged that it not was found that the judgment of the trial Court was perverse and the inferences were not possible at all. The appellate Court could not have upset the judgment and convicted the accused persons. We were also taken through the evidence of the witnesses which was severely criticized by the learned counsel. Lastly, the learned counsel claimed that all the accused persons could not be held guilty, particularly, when it was not certain as to which accused had caused the murder by throttling deceased Deepak.

6. As regards this, the learned Senior Counsel appearing on behalf of the State supported the judgment passed by the High Court and pointed out that this was the most foul murder and the reasoning given by the trial Court was extremely perverse. Shri R.K. Dash, learned Senior Counsel pointed out by reference to the judgment of the trial Court that the trial Court was extremely casual in appreciating the evidence and had rejected the important evidence of the eye witnesses for no reasons.

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7. On this backdrop, it is to be seen whether the appellate Court was right in convicting the accused persons. There can be no dispute about the principles which are now more or less settled while dealing with the judgment of acquittal. There can be no dispute with the proposition argued by Shri Jain that unless the reasoning by the trial Court is found to be perverse, the acquittal cannot be upset. There can also be no dispute of the other proposition argued by Shri Jain that where two views are possible even then the judgment of acquittal should not be upset in the sense that the Court while dealing with the judgment of acquittal must see as to whether the trial Court has taken a possible view.

8. It is a well settled position now and we reiterate the same that while upsetting the judgment of acquittal, the appellate Court must show the perversity in the judgment of the trial Court and the appellate Court's judgment must show that the Court was alive to the fact that it was dealing with the judgment of acquittal and further the appellate Court also must record the finding that the view taken by the trial Court was not possible in law at all.


9. Testing the judgment from these angles, it has to be said that the appellate Court's judgment very clearly records a finding that the acquittal recorded by the trial Court was based on flimsy grounds and was wholly unjustified. The High Court has also considered the benefit of doubt 6 awarded by the trial Court and has observed that it should not become a fetish. The High Court has also given very good reasons to set aside the findings arrived at by the trial Court.


10. The first such finding by the trial Court was that the FIR was ante- timed on the ground that as per the evidence of Chandra Shekhar Yadav (PW-4), the investigating officer, the dead body of deceased Deepak was dispatched from the spot after being sealed at 9 p.m. for the police lines. However, in the record of the police lines, it was shown to have received at 10 a.m. on 12.4.1993. The FIR was also criticized by the trial Court and the defence counsel here on the ground that there was no evidence offered by the prosecution to suggest that the special report of the crime was sent to the higher authorities. The High Court has found that this criticism was not justified. The High Court has given the reasoning that the FIR was lodged by the witness Virendra Kumar (PW-1) on 11.4.93 itself at 6.40 p.m. Thus, if the incident happened at about 5 O'Clock in the evening, the recording of the FIR at 6.40 p.m. in a police station which was 8 Kms. away from the spot of occurrence could not be said to be late reporting. The High Court has also relied upon the evidence of Chandra Shekhar Yadav (PW-4) that the FIR had been lodged in the police station when he was not present there and he was informed about it only on wireless and, therefore, he happened to reach the spot directly with ASI 7 and started the investigation of the case and was busy there in drawing of Panchnama etc. right up to 11 p.m. and merely because the copy of FIR was received in the office of the circular officer on 13.4.1993, it should not lead to the conclusion that the FIR was ante-timed. The High Court has also found that if the dead body reached the police lines late at mid night and if it was shown in the record that it was received at 10 a.m. on 12.4.93, there was nothing significantly doubtful. We have also gone through the record as well as the evidence of the investigating officer Chandra Shekhar Yadav (PW-4) and though the timing is slightly irregular, that alone would not be sufficient to reach a conclusion that the FIR was ante-timed. After all nothing was going to be gained by the prosecution by ante-timing the FIR. Had the FIR been ante-timed, the Panchnama could not have been commenced at 7.30 p.m. We do not find any significant cross examination of the Panchas and the police officers, particularly, on the aspect of timing thereof. We do not find this circumstance to be of such a nature so as to throw the whole prosecution story which was proved by two eye witnesses, one of them being the father of the boy.


11. The learned counsel severely criticized the evidence of Virendra Kumar (PW-1) on the ground that the behaviour of Virendra Kumar (PW-1) was extremely unnatural and that his presence on the spot was extremely doubtful. We have seen the evidence of Virendra Kumar (PW-1) very 8 closely. We have also seen the reasons given by the trial Court for rejecting his evidence. According to this witness, he and his brother S.K. Srivastav had gone near Rajesh Pico Centre to have paan. That pico centre was in the house of 128/22, C-Block, Kidwai Nagar, Kanpur. According to this witness, he saw crowd in front of the Rajesh Pico centre and saw that three accused beating his 11 year old son. He was made to take posture of a cock (murga) and he was being hit by accused Najai with a can. While Rajesh was pressing bricks and Mohan was slapping his son which he did twice. On being asked, the accused Rajesh replied that Deepak had stolen his money and even after requests by the witness, Deepak was not being released and, therefore, Virendra Kumar (PW-1) made hue and cry that the would inform the police. This incident was seen by Brij Bhan Singh, Shyam Ji Pandey and Dinesh Kumar also. However, in their presence, the accused persons dragged Deepak inside the nearby house at 128/22, C-Block, Kidwai Nagar, Kanpur and shut the outside door. It was after about half an hour that the accused persons opened the door and the three accused persons fled away towards a square known as Chalis Dookan Chauraha. When the witnesses entered the room, they found Deepak was hanging with the rope and was dead. His legs were dangling at 4-5 feet above the floor. It was on this basis that the First Information Report was given in their hand writing after it was prepared. The trial Court then noted the topography of the area as also the houses of 9 the witnesses. Thereafter, the trial Court observed that there were 3-4 paan shops including one Pandit Ji's Paan shop. The trial Court also noted that the witness did not have paan at Pandit Ji's Paan shop and proceeded towards the paan shop which was near the shop of the accused Rajesh. The trial Court also noted that there were about 100-150 persons gathered when the door was shut by the accused persons and that when the accused persons escaped by opening the door nobody tried to catch them. He also noted that this witness had taken the name of Shyam Ji Pandey to be present in the crowd. While considering the evidence of this witness, who was an eye witness and father of the unfortunate boy, the trial Court held that Virendra Kumar (PW-1) and Dinesh Kumar who were the clerks of the advocate as also SK Srivastav the brother of Virendra Kumar (PW-1) and Shyam Ji Pandey who himself was an advocate were residents of different places. The trial Court then observed:

"the presence of many advocates and clerks is natural in the court but the presence of these four at the spot of occurrence on a holiday does not seem more probable." The trial Court then further observed:

"the betel shop of Pandit Ji is situated near the house of witness Virendra Kumar (PW-1) before Pico centre but witness did not eat the betel on the aforesaid shop but came to eat betel near Pico centre where the incident was happening. These circumstances make the presence of this witness on the spot of occurrence at the time of incident doubtful and this witness appears to be a chance witness."

10

12. It is on the basis of this that the trial Court has dis-believed the evidence of Virendra Kumar (PW-1). We do not find any other reason having been given to dis-believe his evidence. That we are surprised by this finding would be an understatement. There was nothing unnatural for the witness to choose his Paan shop and merely because he did not go to the nearest Paan shop, no fault could be found with the witness. Further, it has come in the evidence that the residence of Virendra Kumar (PW-1) is hardly 300-350 steps away from the Pico centre where the incident was happening, therefore, to call this witness a chance witness is a perversity. The High Court has noted this perversity and has adversely commented on the finding reached by the trial Court. The other reason given by the trial Court was that one Shyam Ji Pandey was present at the time of writing the FIR and his name was bound to have been mentioned in the FIR, but it did not mention the name of Shyam Ji Pandey and, therefore, Shyam Ji Pandey also appeared to be a chance witness. As regards Shyam Ji Pandey, the Sessions Judge said that his claim that he saw the incident when he was going to fetch ice near the Pico centre was obviously false and the trial Court has mentioned "according to this witness, normally he drinks fresh water of hand pipe. The incident is of 11th April at 5 p.m. At that time it is not hot worth drinking cold water especially when the witness used to drink hand pipe water daily."

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13. Again, this reason for rejecting the evidence of Shyam Ji Pandey, to say the least, is perverse. There is no law saying that merely because one is used to drink water from hand pipe, he should not purchase ice. The High Court has found this reasoning in respect of Shyam Ji Pandey to be perverse. Again the Sessions Judge found that Shyam Ji Pandey who was present was not mentioned in the FIR. It was bound to be realized that Virendra Kumar (PW-1), the author of the FIR had seen his own son being killed by three bullies of the locality. It has also come in the evidence that accused No.1, Rajesh was already facing a murder case and was on bail. Under these circumstances, to expect each and every detail including the names of the witnesses, would be totally unnatural when both these witnesses faced their cross examination extremely well. There was nothing brought in their cross examination which could falsify their claim of having seen the ghastly incident.

14. It is true that the others like the brother of Virendra Kumar (PW-1) did not step into the witness box but that by itself will not make the evidence of two witnesses suspect in any manner. The witness was candid enough to say that he did not have any enmity with accused Mohan and he had heard that he was being tried under Section 302, Indian Penal Code. He was also candid enough to say that accused Mohan and accused Najai had not raised any accusation against deceased Deepak 12 that he had stolen their belongings. It has come in his cross examination that when he was requesting the accused persons to spare his son, Brij Bhan Singh, Shyam Ji Pandey and Dinesh reached there on hearing the shouts thereby the presence of Shyam Ji Pandey was thoroughly established by him in his cross examination itself. In his cross examination, he gave a graphic description of what each accused was doing while beating Deepak. The tenor of his evidence was natural and even after closely examining the evidence we also feel like the High Court that the Sessions Judge was in error in rejecting the evidence on flimsy grounds. Same is true of the evidence of Shyam Ji Pandey and excepting that Shyam Ji Pandey was not expected to purchase ice and for that purpose come out on the spot, nothing has been found inconsistent with the evidence of Virendra Kumar (PW-1). Shyam Ji Pandey is a literate witness. He is MA LLB and had practiced law for two years. He also claimed that he knew and recognized the three accused persons. He had given a correct and graphic picture of what happened. Much of his cross examination was on the fringes without confronting him with any inconsistencies. It was really a matter of importance that there are no prevarications or inter se contradictions in the evidence of these witnesses. He has also given the correct picture of what each accused was doing. After seeing the whole evidence, we are convinced that the approach of the Sessions Judge, while appreciating the evidence of these two eye 13 witnesses was extremely perverse. The trial Court has also found fault with the fact that none of the witnesses tried to stop the accused persons when they fled. That is hardly any reason to dis-believe the prosecution case. One of the accused persons was already facing a murder case. The witness Virendra Kumar (PW-1) has also spoken about that. It should be seen that the accused were viewed as bullies and, therefore, nobody might have tried to apprehend them.


15. Further the trial Court has found fault with the fact that the other witnesses like Shiv Kumar was not examined. That would be hardly a circumstance in favour of the defence, particularly, when the two other witnesses were offered. It is not the quantity but the quality of the evidence which matters.


16. The Sessions Judge did not take into consideration the evidence of the doctor who wholeheartedly supported the prosecution case. It is obvious from the post-mortem report that there were ante-mortem injuries. There were 10 abraded contusions on both sides of neck in front and just below chin. The injuries described were also serious injuries for an 11 year old child. His hyoid bone was also found fractured. Therefore, the fact that Deepak's death was homicidal death was obvious. He had suffered the contusion on the back of left side below scapula and contusion on back of legs below knee etc. which were in perfect unison 14 with the evidence of the two eye witnesses. The High Court has taken note of the medical evidence in a correct manner. At least the injuries of the deceased read with the evidence by the eye witnesses should have put the trial Court on guard. We must say that the trial Court had acquitted the accused persons in a very casual manner.


17. The most important circumstance in this case is the finding of the dead body in the house of one of the accused persons. Surely, the dead body could not have walked inside the house of the accused person. There was absolutely no explanation from the accused persons, more particularly, accused Rajesh as to how the body was found in a hanging position in the house of one of the accused. All the witnesses are unanimous on the point that all the three accused persons went inside the house dragging Deepak with them. This important circumstance was completely lost sight of by the trial Court. That also can be said to be a perversity on the part of the trial Court.


18. As regards the argument of learned counsel for the defence that it was not certain as to which accused actually caused the murder and, therefore, all the three accused persons were bound to be given the benefit of doubt, it has to be said that the argument is without any substance. It is clear that all the three accused persons had taken part in the beating of deceased Deepak and all the accused persons dragged him 15 in the room and closed the door. Therefore, it was up to the accused persons to explain as to how Deepak died. It is very clear that all the three accused persons had acted with common intention of causing the death and, therefore, all the three accused persons would be guilty with the aid of Section 34, IPC. The High Court has rightly held them guilty.


19. In short, after examining the evidence closely, we are of the firm opinion that the acquittal in this case was completely out of the question. The reasoning given by the trial Court was wholly unacceptable and can safely be called perverse. The High Court having noted these defects in the judgment of the trial Court and the casual approach of the trial Court was justified in reversing the acquittal. In our opinion, the appeal has no merits and must be dismissed. It is accordingly dismissed.

......................................J.

[V.S. SIRPURKAR
] .......................................J.

[T.S. THAKUR] New Delhi;

March 28, 2011.

16 Digital Proforma

1. Case No. : Criminal Appeal No.1160 of 2005 2. Cause title : Rajesh Singh & Ors.

State of U.P.


3. Judgment heard by : Hon'ble Mr. Justice V.S. Sirpurkar Hon'ble Mr. Justice T.S. Thakur

4. Judgment reserved by : Hon'ble Mr. Justice V.S. Sirpurkar

5. Date of C.A.V. : 15.3.2011

6. Date of pronouncement of Judgment : 28.3.2011

AZEEZ v. STATE OF KERALA [2011] INSC 327 (28 March 2011)

Judgement
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 833 OF 2011 (Arising out of SLP(Crl.) No.5930/2010)

AZEEZ Appellant(s) :
VERSUS:
STATE OF KERALA Respondent(s)

O R D E R
Leave granted.

The appellant was convicted by the Trial Court under Sections 304-A, 279 and 337 of the Indian Penal Code and was sentenced to undergo simple imprisonment for one year under Section 304-A. He was further sentenced to undergo simple imprisonment for three months under Section 279 and three months under Section 337 of the IPC. However, the sentences were directed to run concurrently. The appellant filed an appeal before the Additional Sessions Judge, (Fast Track Court) No.1, Thrissur, which was dismissed. Thereafter, he filed a revision before the High Court which was also dismissed. The appellant is thus before this Court. 2 We have heard the learned counsel for the parties and perused the impugned judgment.

The appellant has undergone a part of the sentence and has agreed to pay a compensation of Rs.2,35,000/- to the complainant. It is stated at the Bar that out of this amount, Rs.35,000/- has already been received by the complainant and a sum of Rs.2 lakhs has been deposited by the appellant in the Registry of this Court, which is kept in the fixed deposit. The learned counsel for the appellant submits that he has no objection if the amount deposited with the Registry is paid to the complainant. Similarly, the complainant has no objection if the appellant is released on the sentence already undergone by him if the aforementioned amount is paid to her. On a consideration of the totality of the facts and circumstances of this case, we are of the view that ends of justice would meet if the amount of Rs.2 lakhs, with interest, is directed to be paid to the complainant (Mrs. Valsala) and the sentence 3 of the appellant is reduced to the period already undergone by him. We order accordingly. However, we make it clear that this case has been decided on the peculiar facts of this case and shall not be treated as a precedent. The appeal is disposed of with the aforementioned observations and directions. .....................J
(DALVEER BHANDARI)
.....................J
(DEEPAK VERMA) New Delhi;

March 28, 2011.

B.V.VIDHYASHANKAR v. B.MAHAVEER KUMAR [2011] INSC 328 (28 March 2011)

Judgement
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.873 OF 2011 (Arising out of SLP(Crl.) No.8662/2008)

B.V. VIDHYASHANKAR Appellant(s) :
VERSUS:
B. MAHAVEER KUMAR Respondent(s)

O R D E R

1. Leave granted.

2. We have heard the learned counsel for the parties.

3. The appellant issued a cheque bearing No.112378 dated 5.12.2002 of Citibank for Rs.1,30,000/- in favour of the respondent, which was dishonoured when presented to the drawee bank. The respondent filed a complaint under Section 138 of the Negotiable Instruments Act, 1881.

4. The Trial Court convicted the appellant for having committed the offence punishable under Section 138 of the Negotiable Instruments Act and sentenced him to pay a fine of Rs.2 lakhs, out of 2 which Rs.1,90,000/- to be paid to the complainant and the remaining Rs.10,000/- to be appropriated by the State. The order of conviction and sentence passed by the Trial Court was affirmed by the revisional court and the High Court.

5. The appellant has deposited Rs.1 lakh before the Trial Court and in pursuance of the direction of this Court, Rs.1 lakh has been deposited in the Registry of this Court.

6. Learned counsel for the respondent-complainant submits that the respondent has no objection in setting aside the order of conviction of the appellant if out of the amount of Rs.2 lakhs deposited by the appellant Rs.1,90,000/- is given to him.

7. In the peculiar facts and circumstances of this case, we are of the considered view that ends of justice would meet if the respondent-complainant is paid Rs.1,90,000/-, with interest accrued thereon, and the conviction of the appellant is set aside. We order accordingly.


8. The amount of Rs.1 lakh which has been deposited in the Trial Court be handed over to the respondent-complainant within four weeks from today and out of Rs.1 lakh deposited by the appellant in the Registry of this Court, Rs.90,000/-, with interest accrued thereon, be paid to the respondent- complainant and Rs.10,000/- be appropriated by the State.

9. However, we make it clear that this case has been decided on its own peculiar facts and shall not be treated as a precedent.

10. The appeal is disposed of with the aforementioned observations and directions. .....................J
(DALVEER BHANDARI)
.....................J
(DEEPAK VERMA) New Delhi;

March 28, 2011.

Modi govt withdraws security cover of IPS officer who deposed against Modi

Days after he submitted an affidavit in the Supreme Court to say Gujarat Chief Minister Narendra Modi wanted “Muslims taught a lesson” for “the burning of kar sevaks at Godhra” in 2002, IPS officer Sanjiv Bhatt’s security detail was withdrawn on the orders of the state Director General of Police. Instead of four guards, he will now have a lone policeman guarding him.
“There is no way I am going to allow this. My family needs to be protected,” Bhatt told The Indian Express, saying he was drafting a reply to the DGP.

Bhatt had been recommended Y-category security — it comprises a security team of 11, including seven armed guards outside the house — after police intelligence underlined the threat he faced in view of his disclosures to the Special Investigation Team probing the riots cases.
Since no decision had been taken on providing him Y-category cover, he had made his own security arrangement at his residence, using four men drawn from the SRP Training College where he is currently posted as Principal.

Court refuses to quash case against Alagiri

The Madras High Court Bench here on Thursday dismissed a petition filed by Union Minister M.K. Alagiri to quash a criminal case registered against him on the basis of a complaint lodged by a Tahsildar, who was also the Assistant Returning Officer of Melur Assembly constituency here on April 1.

Declining to entertain the petition, Justice R.S. Ramanathan held that there were no grounds to quash the case at the present stage as the Tahsildar had categorically stated in the First Information Report that the Minister yelled at him and also attempted to assault him.

According to the complainant, the Minister had got enraged when he ordered video recording of the Minister's visit to a local temple along with his partymen following a tip-off that the visit was meant to canvass votes for the Assembly election held on April 13.

The judge pointed out that there was no dispute on the issue that the Tahsildar, M. Kalimuthu, was duly authorised by the Election Commission, in his capacity as the Assistant Returning Officer, to record the movements of certain political leaders on video.

When such was the case, the allegation that the Minister yelled at the officer and asked him to get out of the temple would attract Section 188 of the Indian Penal Code which prohibits an individual from causing obstruction, annoyance or injury to any person employed lawfully, he observed.

Mr. Justice Ramanathan said Section 141 (unlawful assembly) would also be attracted in the present case. Visiting a temple with a group of 40 to 50 individuals may not be termed as unlawful, but in this case, it turned into one due to the alleged conduct of the visitors, he added.

As for the affidavit filed by the Tahsildar before the court retracting the allegations of assault, the judge said that it was for the police and not the court to take a call on the issue. “No such incident took place on the date as alleged in my complaint,” the affidavit read.

Earlier, the petitioner's counsel contended that the Union Minister too was a public servant and he was well aware of his duties and responsibilities. “He is not a habitual offender. The only allegation made out against the first petitioner is that he made a gesture to his partymen,” the counsel said.

Though the quash petition had been filed jointly by the Minister, Deputy Mayor of Madurai P.M. Mannan (46) and two other Dravida Munnetra Kazhagam functionaries, counsel said that he pressed for quashing the FIR only with respect to the Minister. The State Public Prosecutor too supported the petitioner by stating that he was against quashing the FIR in respect of all other accused in the case, but for the Minister “who stands on a different footing.” He also objected to permitting an eyewitness to the incident as an intervener in the quash petition.

M. Kannan, an All India Anna Dravida Munnetra Kazhagam functionary, had filed the intervening petition. Senior counsel K. Chellapandian, appearing for him, read out the relevant sentence in the FIR in which the Tahsildar had directly accused the Minister of attempting to assault him.

‘Raja manipulated Telecom Commission'

The former Communications and IT Minister, A. Raja, manipulated the powerful Telecom Commission, the Department of Telecom's decision-making body, to favour companies in granting 2G licences in 2008, the draft Public Accounts Committee (PAC) report on 2G scam has said.

It also pointed out that how the DoT under Mr. Raja bypassed the Telecom Regulatory Authority of India (TRAI) on important issues, particularly that relating to grant of new licences.

Not placed

The PAC noted that as per the Rules of Business of the Telecom Commission, matters of policy relating to telecommunications and proposals for acceptance of any rules and procedures which involve significant deviations from normal rules and procedures of the government are to be brought before the Commission. However, the TRAI's recommendations of 2007, which were very crucial from the perspective of the management of the telecom sector and spectrum management, were never placed before the Commission.

To make the Commission virtually defunct, the report said, an artificial and convenient division has been created by inclusion of full-time and part-time members of the Commission. Pointing out that the Finance Ministry was bypassed while taking decisions related to spectrum pricing, the report said: “Prevalent practice has been developed in the DoT as a camouflage to take very convenient decisions through the permanent internal members of the DoT and avoid uncomfortable decisions in the entire Telecom Commission, where the part-time but independent members, particularly the Finance Secretary, would be raising objections.”

“The Committee strongly disapproves [of] such a dubious practice and impresses upon them to henceforth discard distinguishing between the full-time and part-time members or for that matter between internal or full Telecom Commission as the Commission is one entity,” the report said. The Committee has asked the government to revisit the ‘Transaction of the Business Rules' of the Commission with a view to revising the quorum rule making the presence of the Finance Secretary, or his authorised representative not below the rank of Joint Secretary in the Department of Economic Affairs, as an essential condition for constituting the quorum.

The PAC also found serious faults in the functioning of the TRAI. Though the TRAI's recommendations are not binding upon the Centre, it is mandatory for the government to seek its recommendation in matters pertaining to the need and timing for introduction of new service providers.

“But the Committee is surprised to note that while seeking the TRAI's recommendation on April 13, 2007 on various issues, the DoT did not seek recommendations on grant of new licences despite the mandatory requirement. Even though the decision of the government is final whether to accept or reject the TRAI's recommendation, not seeking such recommendations at all speaks volumes for the DoT's malafide designs to circumvent the established provisions in the TRAI Act,” it added.

Pointing out that the TRAI's flip-flop in its recommendations contributed towards the DoT, under Mr. Raja, taking arbitrary and unilateral decisions, the PAC has recommended that “the TRAI should reflect deeply and dispassionately mindful of the far-reaching implications of their recommendation so that there is no scope for second interpretation or the so-called cherry-picking.”

TRAI criticised

Criticising the TRAI for not exercising its suo motu powers when the first-come-first-served (FCFS) basis for granting licence was arbitrarily adopted by the DoT, the PAC report said the TRAI's explanation that it never recommended the FCFS criteria was again an indicator of its ambiguous stance on important matters, which was “worse than dereliction of duty.”

“The Committee considers it the TRAI's moral obligation to take such steps because its advocacy of no auction of 2G Spectrum led to the adoption of the FCFS method which subsequently resulted in the allotment of spectrum at a throw away price,” the report added.