#015 WITHDRAWAL OF CRIMINAL CASE FILED AGAINST HUSBAND WHERE HUSBAND HAS WITHDRAWN HIS DIVORCE PETITION

Transfer Petition (civil) 457 of 2006
PETITIONER: ARCHANA
RESPONDENT: VIMALENDRA PAL SINGH BHADAURIA
DATE OF JUDGMENT: 08/02/2008
BENCH: H.K. SEMA & MARKANDEY KATJU

STATUTES
Sec. 498A of I.P.C. (Harassment for dowry)
Sec. 482 of Cr.P.C. (High Court's powers to quash proceedings)
Sec. 320 of Cr.P.C. (Non-compoundability of crimes).

BRIEF DETAILS OF THIS CASE
Wife entering into settlement with husband.
Husband agreeing not to press on the divorce proceedings.
Wife praying for quashing for F.I.R. filed by her against husband and the criminal proceedings pending in a Session Court.

VERDICT
Supreme Court consented.

REASONS
Special nature of the case. Need for flexibility in case of marrital disputes.

IMPORTANT CASE WHERE GUIDELINES CAN BE FOUND

CASE NO.: Appeal (crl.) 383 of 2003
PETITIONER: B.S. Joshi & Ors.
RESPONDENT: State of Haryana & Anr.
DATE OF JUDGMENT: 13/03/2003.
BENCH: Y.K. Sabharwal & H.K. Sema.

URL WHERE THESE TWO CASES CAN BE SEEN
Click to go to: http://www.judis.nic.in/supremecourt/chejudis.asp

#014 ACQUITTAL WHERE CORPUS DELICTI HAS NOT BEEN PROVED

CASE NO.: Appeal (civil) 1107 of 2005
PETITIONER: K.T. Palanisamy
RESPONDENT: State of Tamil Nadu
DATE OF JUDGMENT: 11/01/2008
BENCH: S.B. SINHA & DALVEER BHANDARI

TRIAL COURT: Life Imprisonment.
High Court: Confirmation.
Supreme Court: Acquittal.

BLOGGER'S VIEWS
Key elements which the Apex Court examined/observed:

1. Distinction between MAY BE and MUST BE/SHOULD BE

12. It is now well settled that in a case where an offence is said to
have been established on circumstantial evidence alone, indisputably all the links
in the chain must be found to be complete as has been held in Sharad
Birdhichand Sarda v. State of Maharashtra [AIR 1984 SC 1622] in the
following terms :
A close analysis of this decision would show that
the following conditions must be fulfilled before a
case against an accused can be said to be fully
established:
(1) the circumstances from which the conclusion
of guilt is to be drawn should be fully established.
It may be noted here that this Court indicated that
the circumstances concerned 'must or should' and
not 'may be' established. There is not only a
grammatical but a legal distinction between 'may
be proved' and 'must be or should be proved as was
held by this Court in Shivaji Sahebrao Bobade v.
State of Maharashtra where the following
observations were made:
certainly, it is a primary principle that the accused
must be and not merely may be guilty before a
Court can convict, and the mental distance
between 'may be' and 'must be' is long and divides
vague conjectures from sure conclusions.
(2) the facts so established should be consistent
only with the hypothesis of the guilt of the
accused, that is to say, they should not be
explainable on any other hypothesis except that the
accused is guilty.
(3) the circumstances should be of a conclusive
nature and tendency.
(4) they should exclude every possible hypothesis
except the one to be proved, and
(5) there must be a chain of evidence so complete
as not to leave any reasonable ground for the
conclusion consistent with the innocence of the
accused and must show that in all human
probability the act must have been done by the
accused.
153. These five golden principles, if we may say
so, constitute the panchsheel of the proof of a case
based on circumstantial evidence.

2. Need for proving "Corpus delicti" (material evidence such as dead body):

13. In this case, corpus delicti has not been proved. The same need
not be but the death as a fact must be proved. Even death has not been proved in
this case. No piece of mortal remains of the deceased was found. If the
prosecution witnesses are to be believed they had no reason to suspect the
appellant herein at the relevant point of time.

#013 RAPE CASE WHERE THE DEFENCE OF CONSENT FAILED

IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1279 OF 2001
Nehru @ Jawahar .........Appellant
Versus
State of Chhatisgarh ........
Respondent
Date of Judgement: 13th June 2008.
JUDGMENT
Dr. ARIJIT PASAYAT, J

You can see the full judgement by starting a case numberwise query as "Appeal (cr), No. 1279, and year 2001. URL: Click.

BLOGGER'S BRIEF REVIEW
This is a simple case of conviction for rape u/s 376 of I.P.C. The trial court awarded seven years R.I. The High Court reduced to five years R.I. The accused pushed it to Supreme Court. The defence of the accused: The raped girl (14 years) gave consent.

The Apex Court observed the following reply given by the victim during her cross-examination. :

"13. Having taken me inside the school accused
unloaded the wood stack I was carrying on my head and
told me to go inside the room but I didn't go into the
room. Thereupon accused caught hold me- when I
shouted accused gagged me and thereafter he took me
inside the room and made me to lie thereafter he lifted
my petticoat. When I hit him with the leg he caught hold
my leg. I had beaten him with the hand also thereupon
accused caught hold my hand, when accused released
my mouth, I tried to yet, he again gagged me.

14. The flooring of the room of the school is of stone
where accused had made me lie on the ground. I tried to
release myself from the grip of the accused with the
result my body waist had scratched."

The Supreme Court rightly observed:

8. Above being the position the plea of consent is without
substance.
9. The appeal lacks merit, deserves dismissal, which we
direct.

The accused has wasted seven years (2001 to 2008) in the Supreme Court.

#012 DOWRY HARASSMENT- DEATH OF MOTHER- CUSTODY OF CHILD WITH MATERNAL GRAND PARENTS

IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION


CIVIL APPEAL NO. 4960 OF 2008
ARISING OUT OF
SPECIAL LEAVE PETITION (CIVIL) NO. 1243 OF 2008


NIL RATAN KUNDU & ANR. ... APPELLANTS

VERSUS

ABHIJIT KUNDU ... RESPONDENT

IMPORTANCE
The Supreme Court reiterated that welfare of the child is important in deciding on the child's custody. In this case, the trial court and the High Court decided the custody of the child in favour of the natural guardian father, taking a legalistic view. The Supreme Court allowed the child custody in favour of the maternal grand parents.

#011, A case of dowry harrassment taking turns

CASE NO.:
Appeal (crl.) 174 of 2008

PETITIONER:
SUNITA JAIN

RESPONDENT:
PAWAN KUMAR JAIN & ORS.

DATE OF JUDGMENT: 25/01/2008

BENCH:
C.K. THAKKER & D.K. JAIN.

SOME QUESTIONS EXAMINED BY THE SUPREME COURT
1. Whether a High Court could quash under Sec. 482 of Cr.P.C., the criminal proceedings pending in a lower court?

2. Whether a criminal court can revise its own judgements in criminal cases (S. 362 of Cr. P.C.?

BLOGGER'S VIEWS
This case is worth reading for:

1. Suffering wives, their relatives.
2. Harrassing husbands and their relatives.
3. Advocates of both the parties.

#001 INTEREST RATE OF 782% IN A LAND OF MILK AND HONEY

To lay persons, US is a country of Milk and Honey, and a Nation which declares "In God We Trust!".

The Financial Journals globally blurt out everyday about the low rates of interest prevailing in the West. Here is an interesting case, tried by the United States Bankruptcy Court, Northern District of Georgia, Atlanta Division, Case No. 02-91845.
In the matter of Healing Touch Inc., Tamara Miles Ogier vs Synedra Smith Johnson.

Click: http://209.85.175.104/unclesam?q=cache:rDDQs1jfCUcJ:www.ganb.uscourts.gov/judges/opn/opn_view.php%3FId%3D222+flabbergast&hl=en&ct=clnk&cd=6.

The court's observation is worth noting:

"...Seven days after Defendant made the second loan of $30,000 to Debtor, it repaid the loan infull with interest in the amount of $4,500. That charge for the use of $30,000 for seven days worksout to an annual interest rate of 782%, which would flabbergast even the most avaricious loanshark. ..."

#004 DISCLOSURE OF REASONS IS CRUCIAL FOR ANY JUDGEMENT

CASE NO.: Appeal (crl.) 222 of 2008
PETITIONER: Ran Singh and Anr.
RESPONDENT: State of Haryana and Anr.
DATE OF JUDGMENT: 30/01/2008

The Supreme Court of India corrected the Punjab and Hariyana High Court, its action of not giving reasons for its judgement.

Brief details: A dowry harrassment case filed by bride's father.

Statute under discussion: Definition of dowry u/s 2 of the Dowry Prohibition Act, 1961 (Dowry Act).

Section 2. Definition of 'dowry'  In this Act,
'dowry' means any property or valuable
security given or agreed to be given either
directly or indirectly 


(a) by one party to a marriage to the
other party to the marriage; or

(b) by the parents of either party to a
marriage or by any other person, to
either party to the marriage or to any
other person,

at or before or any time after the marriage in
connection with the marriage of the said
parties, but does not include dower or mehr
in the case of persons to whom the Muslim
personal law (Shariat) applies.

Explanation I- For the removal of doubts, it is
hereby declared that any presents made at
the time of a marriage to either party to the
marriage in the form of cash, ornaments,
clothes or other articles, shall not be deemed
to be dowry within the meaning of this
section, unless they are made as
consideration for the marriage of the said
parties.

Explanation II- The expression 'valuable
security' has the same meaning in Section 30
of the Indian Penal Code (45 of 1860)."

The trial court held that no offenses could be made out against the father and mother. The High Court ordered added their names, without indicating reasons for its decision. The Supreme Court reversed the HIgh Court's decision. The Supreme Court's observations:

9. Reasons introduce clarity in an order. On plainest
consideration of justice, the High Court ought to have set forth
its reasons, howsoever brief, in its order indicative of an
application of its mind. The absence of reasons has rendered
the High Court's judgment not sustainable.

10. Even in respect of administrative orders Lord Denning
M.R. in Breen v. Amalgamated Engineering Union (1971 (1) All
E.R. 1148) observed "The giving of reasons is one of the
fundamentals of good administration". In Alexander Machinery
(Dudley) Ltd. v. Crabtree (1974 LCR 120) it was observed:
"Failure to give reasons amounts to denial of justice". Reasons
are live links between the mind of the decision taker to the
controversy in question and the decision or conclusion arrived
at". Reasons substitute subjectivity by objectivity. The
emphasis on recording reasons is that if the decision reveals
the "inscrutable face of the sphinx", it can, by its silence,
render it virtually impossible for the Courts to perform their
appellate function or exercise the power of judicial review in
adjudging the validity of the decision. Right to reason is an
indispensable part of a sound judicial system, reasons at least
sufficient to indicate an application of mind to the matter
before Court. Another rationale is that the affected party can
know why the decision has gone against him. One of the
salutary requirements of natural justice is spelling out reasons
for the order made, in other words, a speaking out. The
"inscrutable face of a sphinx" is ordinarily incongruous with a
judicial or quasi-judicial performance.

#006 SUPREME COURT CORRECTED A HIGH COURT NOT GIVING REASONS FOR ITS JUDGEMENT

Supreme Court of India in its judgement dated 04/02/2008 corrected the omission of a High Court, in not giving reasons for its decision of dismissing an appeal.

Here are the observations of the Supreme Court, which are very reasonable:

6. The order of the High Court reads as follows:

"Heard. Dismissed".
It is absolutely non-reasoned. Reasons introduce clarity in an order. On plainest consideration of justice, the High Court ought to have set forth its reasons, howsoever brief, in its order indicative of an application
of its mind. The absence of reasons has rendered the High Court's judgment unsustainable.

7. Even in respect of administrative orders Lord Denning M.R. in Breen v. Amalgamated Engineering Union (1971 (1) All E.R. 1148) observed "The giving of reasons is one of the fundamentals of good administration". In Alexander Machinery
(Dudley) Ltd. v. Crabtree (1974 LCR 120) it was observed:
"Failure to give reasons amounts to denial of justice". Reasons are live links between the mind of the decision taker to the controversy in question and the decision or conclusion arrived at". Reasons substitute subjectivity by objectivity. The emphasis on recording reasons is that if the decision reveals the "inscrutable face of the sphinx", it can, by its silence, render it virtually impossible for the Courts to perform their appellate function or exercise the power of judicial review in adjudging the validity of the decision. Right to reason is an
indispensable part of a sound judicial system, reasons at least sufficient to indicate an application of mind to the matter before Court. Another rationale is that the affected party can know why the decision has gone against him. One of the salutary requirements of natural justice is spelling out reasons for the order made, in other words, a speaking out. The "inscrutable face of a sphinx" is ordinarily incongruous with a judicial or quasi-judicial performance.

If you wish to see the full text of Supreme Court's judgement: Click here: Appeal (crl.) 257 of 2008 : Jagtamba Devi vs. Hemram and Others.

#007 GUIDELINES OF SUPREME COURT OF INDIA, FOR ENTERTAINING LETTERS/PETITIONS AS PIL

GUIDELINES TO BE FOLLOWED FOR ENTERTAINING LETTERS/PETITIONS RECEIVED
IN SUPREME COURT OF INDIA, AS PUBLIC INTEREST LITIGATION (PIL):

These guidelines are available at Click to read.

These guidelines are clear, comprehensive and worth reading.

#008 SUPREME COURT OF INDIA ON PUBLIC INTEREST LITIGATION (PIL)

The Supreme Court of India, in its Judgement dated Dec. 14, 2007, (Seema Dhamdhere, Secretary, M.P.S.C. vs. State of Maharashtra and Others) reiterated the guidelines given by it in Gurpal Singh vs. State of Punjab, (2005 (5) SCC 136).

"The scope of entertaining a petition
styled as a public interest litigation, locus
standi of the petitioner particularly in matters
involving service of an employee has been
examined by this court in various cases. The
Court has to be satisfied about (a) the
credentials of the applicant; (b) the prima facie
correctness or nature of information given by
him; (c) the information being not vague and
indefinite. The information should show
gravity and seriousness involved. Court has to
strike balance between two conflicting
interests; (i) nobody should be allowed to
indulge in wild and reckless allegations
besmirching the character of others; and (ii)
avoidance of public mischief and to avoid
mischievous petitions seeking to assail, for
oblique motives, justifiable executive actions.
In such case, however, the Court cannot afford
to be liberal. It has to be extremely careful to
see that under the guise of redressing a public
grievance, it does not encroach upon the
sphere reserved by the Constitution to the
Executive and the Legislature. The Court has
to act ruthlessly while dealing with imposters
and busy bodies or meddlesome interlopers
impersonating as public-spirited holy men.
They masquerade as crusaders of justice. They
pretend to act in the name of Pro Bono
Publico, though they have no interest of the
public or even of their own to protect.

As noted supra, a time has come to weed
out the petitions, which though titled as public
interest litigations are in essence something
else. It is shocking to note that Courts are
flooded with large number of so called public
interest litigations where even a minuscule
percentage can legitimately be called as public
interest litigations. Though the parameters of
public interest litigation have been indicated
by this Court in large number of cases, yet
unmindful of the real intentions and
objectives, High Courts are entertaining such
petitions and wasting valuable judicial time
which, as noted above, could be otherwise
utilized for disposal of genuine cases. Though
in Dr. Duryodhan Sahu and Ors. v. Jitendra
Kumar Mishra and Ors. (AIR 1999 SC 114),
this Court held that in service matters PILs
should not be entertained, the inflow of so-
called PILs involving service matters continues
unabated in the Courts and strangely are
entertained. The least the High Courts could
do is to throw them out on the basis of the
said decision. The other interesting aspect is
that in the PILs, official documents are being
annexed without even indicating as to how the
petitioner came to possess them. In one case,
it was noticed that an interesting answer was
given as to its possession. It was stated that a
packet was lying on the road and when out of
curiosity the petitioner opened it, he found
copies of the official documents. Whenever
such frivolous pleas are taken to explain
possession, the Court should do well not only
to dismiss the petitions but also to impose
exemplary costs. It would be desirable for the
Courts to filter out the frivolous petitions and
dismiss them with costs as afore-stated so that
the message goes in the right direction that
petitions filed with oblique motive do not have
the approval of the Courts."