Important Court Citations

Incorrect and false record of proceedings

During the oral arguments, this Hon'ble Court was pleased to dub the 25 PILs filed by the petitioner as "blackmailing". However, the order passed by this Hon'ble Court seems to have eschewed from so correctly recording the proceedings inasmuch as the said word "blackmailing" is missing from the said order. Therefore, the conclusion is inevitable that this Hon'ble Court has resorted to a multi-cornered mendacity and falsehood and a smorgasbord of deliberate deceptions with an evil intention to cause a gross, grave, outrageous and grotesque miscarriage of justice.  

Inadvertent Mistakes In The Plaint Cannot Be Refused To Be Corrected: SC [Read Judgment]

https://www.livelaw.in/news-updates/inadvertent-mistake-made-in-the-plaint-cannot-be-refused-to-be-corrected-143262

[7/8, 21:39] Neeta Saxena: https://indiankanoon.org/docfragment/183691621/?formInput=Inadvertent%20Mistakes%20In%20The%20Plaint%20Cannot%20Be%20Refused%20To%20Be%20

Supreme Court of India,  Varun Pahwa vs Renu Chaudhary on 1 March, 2019

9. The memo of parties is thus clearly inadvertent mistake on the part of the counsel who drafted the plaint. Such inadvertent mistake cannot be refused to be corrected when the mistake is apparent from the reading of the plaint. The Rules of Procedure are handmaid of justice and cannot defeat the substantive rights of the parties. It is well settled that amendment in the pleadings cannot be refused merely because of some mistake, negligence, inadvertence or even infraction of the Rules of Procedure. The Court always gives leave to amend the pleadings even if a party is negligent or careless as the power to grant amendment of the pleadings is intended to serve the ends of justice and is not governed by any such narrow or technical limitations.

Kerla HC Sasidharan vs Reserve Bank Of India on 23 June, 1990

If the power to correct inadvertant mistakes is not recognised and accepted, it may lead to perpetuation of injustice and to undesirable consequences. A person whose rights are so affected by an illegal order passed behind his back need not be compelled to rush to court to get it set aside, on pain of its being held binding otherwise. The authority concerned can itself remedy the mischief, on its being apprised of its mistake and the injustice flowing therefrom. (See in this connection Karunakaran Nambiar v. Director of Public Instruction 1966 KLT 290). Such an order does not affect any rights of the party benefitting by the mistake, as no rights legally inhered in him by virtue of the mistaken order. 

Supreme Court of India

J.K.Synthetics Ltd. Ã Appellant vs K.P.Agrawal & Anr. Ã Respondents on 1 February, 2007

a) If there is an arithmetical or clerical or typographical error in the order, it can be corrected.

b) Where the court had said something which it did not intend to say or omitted something which it intended to say, by reason of any accidental slip/omission on the part of the court, such inadvertentmistake can be corrected.

c) The power cannot be exercised where the matter involves rehearing on merits, or reconsideration of questions of fact or law, or consideration of fresh material, or new arguments which were not advanced when the original order was made. Nor can the power be exercised to change the reasoning and conclusions.

 Amendments of Pleadings under CPC  Order 6 Rule 17.

Pleading should contain the facts but no law should be applied in pleadings. Only the court has the power to apply the law on the basis of fact stated in the Pleadings. In the case of Gouri Dutt Ganesh Lal Firm v. Madho Prasad,1 Privy Council Appeal No. 5 of 1942 (From Patna: Patna Appeal No. 9 of 1939) , honorable court stated that Pleadings should be defined in four words – “Plead Facts, not laws”.  https://blog.ipleaders.in/amendments-of-pleadings-cpc/

https://www.nls.ac.in/lib/bareacts/civil/cpc/cpco6.html

BHC Malaysian International Trading ... vs Mega Safe Deposit Vaults (P.) Ltd. on 27 January, 2006

P27. Under Order 6 Rule 2 of the Code of Civil Procedure, 1909, every pleading shall contain a statement in concise form of material facts relied on by a party but not the evidence nor the law of which a court may take judicial notice.

P.Chidambaram : vs R.S.Raja Kannappan on 7 June, 2012 madras high court

P!!50 There is distinction between facta probanda (the facts required to be proved, i.e. material facts) and facta probantia (the facts by means of which they are proved, i.e. particulars or evidence). It is settled law that pleadings must contain only facta probanda and not facta probantia. The material facts on which the party relies for his claim are called facta probanda and they must be stated in the pleadings. But the facts or facts by means of which facta probanda (material facts) are proved and which are in the nature of facta probantia (particulars or evidence) need not be set out in the pleadings. They are not facts in issue, but only relevant facts required to be proved at the trial in order to establish the fact in issue.

On the other hand, my submission is that nobody shall be harmed due to a mistake of the court. Actus curiae neminem gravabit.

Please see paras 17 and 18 of CMP for "Court cannot traverse beyond the scope of pleadings." Reliance may be placed to the judgement passed in the case Commissioner, Bangalore Development Authority -Vs.- S.Vasudeva reported in 2000(2) SCC.439 where it was held that Court should not travel beyond the scope of the writ petition and/or beyond the pleading therein.  Supreme Court of India Commissioner Bangalore ... vs S. Vasudeva And Ors on 18 January, 2000

Bench: B.N. Kirpal, M.B. Shah CASE NO.:Appeal (civil)  456-458 of 2000

COMMISSIONER BANGALORE DEVELOPMENT AUTHORITY VS VASUDEVA AND ORS.DATE OF JUDGMENT: 18/01/2000

  : Calcutta High Court (Appellete Side)Judgement Passed In The Case The ... vs T.R.Challappan Reported In Air ... on 30 June, 2009

Material and relevant  …..has not accidently not been considered by court

Relevant portion miscarriage of  justice has occurred same may be rectified

Mohamed akram ansari

To perpetuate an error in not heroism .to Rectify is compulsion of judicium.

  In course of submission, reference was made to the decision of the Apex Court in the case between Mohd. Akram Ansari Vs. Chief Election Officer & Ors., as reported in (2008) 2 SCC 95. The Apex Court in the said case observed that 'there is a presumption in law that a judge deals with all the points which have been pressed before him. It often happens that in a petition or appeal several points are taken in the memorandum of the petition or appeal, but at the time of arguments only some of these points are pressed............ If a point is not mentioned in the judgment of a Court, the presumption is that that point was never pressed before the learned judge and it was given up. However, that is a rebuttable presumption. In case the petitioner contends that he had pressed that point also (which has not been dealt with in the impugned judgment), it is open to him to file an application before the same learned Judge (or Bench) which delivered the impugned judgment and if he satisfies the Judge (or Bench) that the other points were in fact pressed, but were not dealt with in the impugned judgment, it is open to the Court concerned to pass appropriate orders, including an order of review...........'

https://indiankanoon.org/doc/322690/      https://indiankanoon.org/doc/128315199/    https://indiankanoon.org/search/?formInput=To+perpetuate+an+error+in+not+heroism

https://indiankanoon.org/search/?formInput=to+perpetuate+an+error+is+heroism+doctypes%3Asupremecourt

beyond the scope of pleading https://indiankanoon.org/search/?formInput=beyond%20the%20scope%20of%20pleading%20+doctypes:supremecourt

accidental mistake can be corrected https://indiankanoon.org/search/?formInput=accidental+mistake+can+be+corrected+%3A+supremecourt

rule of law only https://indiankanoon.org/docfragment/753224/?formInput=rule%20of%20law%20only%20

beat about the bush ……. https://www.supremecourtcases.com/index2.php?option=com_content&itemid=1&do_pdf=1&id=275 In the circumstances and for the reasons stated above both the Court and the parties have been beating about the bush. Counsel for the principal respondent omitted to hit the Bull's eye. He ought to have raised a preliminary objection:

Judge misbehave contempt of court ; https://indiankanoon.org/docfragment/114065311/?formInput=judge%20misbehave

Without bothering about the performance .

judge impropriety https://indiankanoon.org/search/?formInput=judge%20impropriety%20

Kerala HC Upholds Rs.1 Lakh Compensation To Man Who Was Illegally Detained On Suspicion Of Being A 'Maoist' [Read Judgment]

https://www.livelaw.in/news-updates/kerala-hc-upholds-compensation-illegally-detained-suspicion-maoist-146167

Ordinarily, a litigation is based on adjudication on the merits of the contentions of the parties. Litigation should not be terminated by default, either of the plaintiff or the defendant. The cause of justice does require that as far as possible, adjudication be done on merits.

Judicial Disciline

  https://indiankanoon.org/search/?formInput=judicial%20discipline

traversed beyond the scope of the pleadings of the case.

disposing of matters on ‘merits’   https://indiankanoon.org/search/?formInput=disposing+of+matters+on+%E2%80%98merits%E2%80%99

In the legal arena, an attempt should always be made to  allow the matter to be contested on merits rather than to throw it   on such technicalities……It is the duty of the Court to see to it that           justice should be done between the parties…..” https://indiankanoon.org/search/?formInput=justice+should+be+done+between+the+parties%E2%80%A6..%E2%80%9D+

            “Scope of the Power of Rectification

)       Because it is settled law that when prejudice results from an order

attributable to the Court’s mistake, error or omission, then it is the duty of the

Court to set it right; atonement to the wronged party by the Court for the

wrong committed by it has nothing to do with the concept of inherent power

to review, vide the law laid down by the Hon’ble Supreme Court of India in

Honda Siel Power Products Ltd. v CIT, (2007) 295 ITR 466 (SC):

            “Scope of the Power of Rectification

    Because it is settled law that no act of the Court should harm a litigant

and it is the bounden duty of Courts to see that if a person is harmed by a

mistake of the Court he should be restored to the position he would have

occupied but for that mistake, vide, inter alia, AIR 1966 SC 1631, Jang Singh

v Brij Lal & others:

Once the Court comes to the conclusion that a wrong order has

            been passed, it becomes the solemn duty of the Court to rectify the

            mistake rather than perpetuate the same

While dealing with a   similar issue, this Court in Hotel Balaji v State of Andhra Pradesh,

            AIR 1993 SC 1048 observed as under:

                        “…..To perpetuate an error is no heroism. To rectify

                        it is the compulsion of judicial conscience

Because it is settled law that no one shall suffer for an act of the

court is not a rule confined to an erroneous act of the court; the act of the

court embraces within its sweep all such acts as to which the court may form

an opinion in any legal proceeding that the court would not have so acted had it

been correctly apprised of the facts and the law, vide, inter alia,

South Eastern Coalfields Limited v State of M.P., (2003) 8 SCC 648:

The settled principle of law is that the actus

            curiae neminem gravabit - 'act of the court shall not harm

            anybody'.

The court may not have a suo motu power to amend a

                        decree but the same would not mean that the court cannot

                        rectify a mistake. If a property was subject matter of pleadings

                        and the court did not frame an issue which it ought to have

                        done, it can, at a later stage, when pointed out, may amend the

                        decree.

Learned senior counsel for the appellants would submit that the maxim actus curiae neminemgravabit or “an act of the court shall prejudice no man” is a settled principle of law and applicable in the present case.

https://lawandotherthings.com/2017/08/government-advocates-and-standing-counsel-investigating-the-professional-pasts-of-supreme-court-judges/

https://economictimes.indiatimes.com/news/politics-and-nation/procedures-on-complaints-against-judges-on-supreme-court-website/articleshow/46947547.cms

There can be no quarrel with the proposition as noted by the High Court that a party cannot be made to suffer on account of an act of the Court. There is a well recognised maxim of equity, namely, actus curiae neminem gravabit which means an act of the Court shall prejudice no man. This maxim is founded upon justice and good sense which serves a safe and certain guide for the administration of law. The other maxim is, lex non cogit ad impossibilia, i.e. the law does not compel a man to do that what he cannot possibly perform. The applicability of the abovesaid maxims has been approved by this Court in Raj Kumar Dey and ors. vs. Tarapada Dey and Ors. 1987 (4) SCC 398, Gursharan Singh vs. New Delhi Municipal Committees1996 (2) SCC 459 and Mohammed Gazi vs. State of M.P. and Ors. 2000 (4) SCC 342."

https://indiankanoon.org/doc/61939581/     speculation order

He ought to know that speculations, suspicions, conjectures, surmises and assumptions cannot take the place of proof and evidence, vide P. Satyanarayana Murthy v The District Inspector of Police (SC, 14.9.2015, Para 25)  

The paramount consideration of the court is to ensure that miscarriage of justice is avoided.

CRIMINAL APPEAL NO. 1306 OF 2003, Supreme Court of India

Sannaia Subba Rao & Ors vs State Of A.P on 24 July, 2008

 Law is well settled with regard to the fact that however strong the suspicion may be, it cannot take the place of proof. Strong suspicion,coincidence, grave doubt cannot take the place of proof. Always a duty is cast upon the Courts to ensure that suspicion does not take place of the legal proof. Supreme Court of India Sheila Sebastian vs R.Jawaharaj on 11 May, 2018   Idle speculation, suspicion, conjectures and surmises cannot take the place of evidence.

Making Of Fake Document Is Different Than Causing It To Be Made; Only Maker Can Be Charged With Forgery: SC

https://www.livelaw.in/making-of-fake-document-is-different-than-causing-it-to-be-made-only-maker-can-be-charged-with-forgery-sc/ Case name: Sheila Sebastian vs R. Jawaharaj Date of Judgment: May 11, 2018

  Because it is settled law that no one shall suffer for an act of the court is not a rule confined to an erroneous act of the court; the act of the court embraces within its sweep all such acts as to which the court may form an opinion in any legal proceeding that the court would not have so acted had it been correctly apprised of the facts and the law, vide, inter alia, South Eastern Coalfields Limited v State of M.P., (2003) 8 SCC 648:

Because the said accidental mistakes are also rectifiable on the authoritative decision of the Hon’ble Supreme Court in SCR 2009 (2) 452,

Tilak Raj v Baikunthi Devi:

Since the court exists to dispense justice, any mistake….should be  allowed to be rectified by exercising inherent power vested in the court  for sub-serving the cause of justice. The principle behind the provision  is that no party should suffer due to bona fide mistake. Whatever is intended by the court while passing the order or decree must be  properly reflected therein otherwise it would only be destructive of the principle of advancing the cause of justice. In such matters, the court   should not bind itself by the shackles of technicalities.

In S. Satnam Singh and Ors. vs. Surender Kaur and Anr.,  reported in 2008 (15) SCALE  626 Court held as follows:

                        “21. The court may not have a suo motu power to amend a

                        decree but the same would not mean that the court cannot

                        rectify a mistake. If a property was subject matter of pleadings

                        and the court did not frame an issue which it ought to have

                        done, it can, at a later stage, when pointed out, may amend the

                        decree.

                        22. The power of amendment, in a case of this nature, as noticed

                        hereinbefore, would not only be dependent upon the power of

                        the court but the principle that a Court shall always

                        be ready and willing to rectify the mistake it has

                        committed.””    

Actus curiae neminem  gravabit. An act of the Court shall prejudice no man.

It is the duty of the Court to enforce that   obligation unless it is shown that restitution would be clearly contrary  to the real justice of the case.

A party cannot be allowed to take any benefit of his own wrongs  by getting an interim order and thereafter blame the Court.

The aforesaid judgments are passed on the application of legal maxim “sublato fundamento cadit opus”, which means in case a   foundation is removed, the superstructure falls.”

We appreciate the manner in which the learned Judge accepted his mistake and granted relief to the respondents.”

the Hon’ble Supreme Court in SLR 2005 (6) 1, Rajinder Singh v Lt. Governor, Andaman and Nicobar Islands:     “9…..Law is well-settled that the power of judicial review of its own order            by the High Court inheres in every Court of plenary jurisdiction to prevent mis-carriage of justice.

The maxim actus curiae neminem gravabit (act of the court  cannot cause any prejudice and loss to the party) is also applicable to the facts of the present case. The said doctrine is applicable not             only to acts of the courts which are erroneous but also applicable to all such acts of the court which the court would not have directed  after it had been apprised of the correct facts and the law.

Because it is settled law that interest in finality of the decision must

yield where the interest of justice so requires.

            As held in Rupa Ashok Hurra v Ashok Hura, (2002) 4 SCC 388:

           

            “The concern of this Court for rendering justice in a cause is  

            not less important than the principle of finality of its judgment. We

            are faced with competing principles — ensuring certainty and finality

            of a judgment of the Court of last resort and dispensing justice on

            reconsideration of a judgment on the ground that it is vitiated being in  

            violation of the principle of natural justice or apprehension of bias due

            to a Judge who participated in decision making process not disclosing

            his links with a party to the case, or abuse of the process of the court.           

            Such a judgment, far from ensuring finality, will always remain under

            the cloud of uncertainty. Almighty alone is the dispenser of absolute

            justice - a concept which is not disputed but by a few. We are of the

            view that though Judges of the highest court do their best,

            subject of course to the limitation of human fallibility, yet situations

            may arise, in the rarest of the rare cases, which would require

            reconsideration of a final judgment to set right miscarriage of

            justice complained of. In such case it would not only be proper but

            also obligatory both legally and morally to rectify the error. After

            giving our anxious consideration to the question, we are persuaded

            to hold that the duty to do justice in these rarest of rare cases shall

            have to prevail over the policy of certainty of judgment as though it  

            is essentially in the public interest that a final judgment of the final

            court in the country should not be open to challenge, yet there

            may be circumstances, as mentioned above, wherein declining to

            reconsider the judgment would be oppressive to judicial conscience

            and would cause perpetuation of irremediable injustice. It may be

            useful to refer to the judgment of the Supreme Court of United States in

            Ohio Power Company's case (supra). In that case the Court of Claims

            entered judgment for refund of tax, alleged to have been overpaid, in

            favour of the tax payer. On the application of the Government a writ of

            certiorari against that judgment was declined by the Supreme Court of

            United States in October 1955. The Government sought re-hearing of

            the case by filing another application which was dismissed in

            December 1955. A second petition for hearing was also rejected in May

            1956. However, in June 1956 the order passed in December 1955 was

            set aside sua sponte (of its own motion) and that case was ordered to be

            heard along with two other pending cases in which the same question

            was presented. In those two cases the Supreme Court held against the

            tax payer and, on the authority of that judgment, reversed the judgment

            of the Court of Claims. Four learned members of the Court, in

            per curiam opinion, rested the decision "on the ground of interest in

            finality of the decision must yield where the interest of justice so

            required". Three learned members dissented and held that denial of

            certiorari had become final and ought not to be disturbed. Two learned

            members, however, did not participate.

The upshot of the discussion in our view is that this Court, to

            prevent abuse of its process and to cure a gross miscarriage of

            justice, may re-consider its judgments in exercise of its inherent

            power.”

            As held in AIR 1964 SC 72, S. Partap Singh v State of Punjab: 

            “The Constitution enshrines and guarantees the rule of law and Art.

            226 is designed to ensure that each and every authority in the State,

            

            including the Government, acts bona fide and within the limits of its

            power and we consider that when a Court is satisfied that there is an

            abuse or misuse of power and its jurisdiction is invoked, it is

            incumbent on the Court to afford justice to the individual.”

Because the said grave, manifest and accidental slips, omissions, errors

and mistakes and the said flagrant miscarriage of justice are inconsistent with

a rational system of justice.

Because it is settled law that “when the law gives anything to anyone, it

gives also all those things without which the thing itself would be unavailable”,

So far legal position is concerned, there would hardly be any doubt about the proposition that in terms of Section 152 C.P.C., any error occurred in the decree on account of arithmetical or clerical error or accidental slip may be rectified by the court. The principle behind the provision is that no party should suffer due to mistake of the court and whatever is intended by the court while passing the order or decree must be properly reflected therein, otherwise it would only be destructive to the principle of advancing the cause of justice. Supreme Court of IndiaJayalakshmi Coelho vs Oswald Joseph Coelho on 28 February, 2001, [(2001) 4 SCC 181],

vide 2001 (8) SCC 570, Dinesh Dutt Joshi v State of Rajasthan.

            At best, then, it would be a situation where an applicant has filed

            an application which is couched under the wrong provision of law.

            There is no dispute that the court has jurisdiction to review or

            modify/recall an order passed. It is well settled that the court

            having jurisdiction to grant the relief sought in an application

            would not be precluded from doing so, merely because an

            application has been couched under a wrong provision of law.

Because it is settled law that the petitioner has an inalienable right to

pray for rectification of the said accidental mistakes till they are corrected;

there is no bar of res judicata in the correctional jurisdiction.

39)     Because the totality of the facts and circumstances of the case speak

for themselves, and, the doctrine of res ipsa loquitur(the principle that the mere occurrence of some types of accident is sufficient to imply negligence.) squarely applies to them.  

(40)     Because it is settled law that the Hon’ble High Court does not act like a

proverbial “bull in a china shop” in the exercise of its jurisdiction under Article

226, vide 1999 (1) SCC 741, UP State Cooperative Land Development

Bank Ltd. v Chandra Bhan Dubey, Para 27.

passed a non-speaking order in violation of the principles of naturaljustice. 

In this view of the matter we are of opinion that the petitioner is entitled to release as the orderby which he was detained is no order under the Rules for it was passed without the application of themind of the authority concerned.

Supreme court pronouncement is binding on lower courts  SC Pronouncement Binding On HCs Even If It Cannot Be Strictly Called 'Ratio Decidendi', Reiterates SC Supreme Court of India

The Peerless Gen.Fin And ... vs Commnr. Of Income Tax on 9 July, 2019

  https://indiankanoon.org/doc/52085221/

Article 141. Law declared by Supreme Court to be binding on all courts The law declared by the Supreme Court shall be binding on all courts within the territory of India

https://www.livelaw.in/top-stories/sc-pronouncements-binding-on-high-courts-even-if-not-strictly-ratio-decidendi-146336

P10  We reiterate that though the Court’s focus was not directly on this, yet, a pronouncement by this Court, even if it cannot be strictly called the ratio decidendi

of the judgment, would certainly be binding on the High Court.

In our view, by passing such an order, the High Court has literally stepped into the shoes of the Disciplinary Authority, which is impermissible. It needs to be mentioned, that, the High Court in cases of departmental enquiries and the findings recorded therein does not exercise the powers of the appellate court/ authority. It is settled law that imposition of punishment is within the power and discretion of the disciplinary authority. It is not necessary to refer to the decisions on this topic.

orders were arbitrary, discriminatory and unrelated to the object.  below is found to be arbitrary, purely speculative, and, based on no evidence, order is arbitrary, without enquiry, surmisical, speculative, against law and facts of the case

intemperate language

A Mere Incorrect Averment In Affidavit Cannot Be Classified As Fraud: Madras HC [Read Order]

https://www.livelaw.in/mere-incorrect-averment-affidavit-cannot-classified-fraud-madras-hc-read-order/

that the law laid down by the Supreme Court is binding on all , notwithstanding the fact that it is against the State or a private party and that it is binding on even those who were not parties before the Court.

“The law of contempt is not made for the protection of judges who may be sensitive to the winds of public opinion. Judges are supposed to be men of fortitude, able to thrive in a hardy climate.” [ Douglas, J., Craig v. Harney, 331 US 367, 376 (1947)]

Scandalising the court is one of them. “There are many kinds of contempts. The chief forms of contempt are insult to Judges, attacks upon them, comment on pending proceedings with a tendency to prejudice fair trial, obstruction to officers of courts, witnesses or the parties, abusing the process of the court, breach of duty by officers connected with the court and scandalising the Judges or the courts. The last form occurs, generally speaking, when the conduct of a person tends to bring the authority and administration of the law into disrespect or disregard. In this conduct are included all acts which bring the court into disrepute or disrespect or which offend its dignity, affront its majesty or challenge its authority. Such contempt may be committed in respect of a Single Judge or a single court but may, in certain circumstances, be committed in respect of the whole of the judiciary or judicial system.”6

C.S.Karnan ( 2017) 7 SCC 1 it is ruled as under ;

 High Court Judge disobeying Supreme Court direction and abusing process of court sentenced to six months imprisonment.

The Commission then referred to the Supreme Court judgments of Union of India v. Sandur Manganese and Iron Ores Ltd., (2013) 8 SCC 337 and S.Bagirathi Ammal v. Palani Roman Catholic Mission, (2009) 10 SCC 464, wherein it was held that the power of review cannot be exercised solely on basis that the parties do not agree with the view of the judgment, as long as the point is already dealt with and answered, parties are not entitled to challenge the impugned judgment in the guise that an alternative view is possible under review jurisdiction. Under the review jurisdiction, rehearing of issues is not allowed but the same issues can be decided just by a perusal of the records and if a prima facie error is detected then it can be corrected using the review jurisdiction. In the instant case, the error was apparent only with respect to certain complainants.

Criminal * the allegations were not sufficient to constitute an offence under the said section, the proceedings against the petitioner were quashed [Chethan v. State, Crl. Petition No. 5185 of 2017, order dated 7.2.2018] Karnataka High Court

High Court Has Duty To Protect Honest Businessmen From Those Who Use Unscrupulous Means To Cheat : Calcutta HC [Read Order]

Article 225 of the Constitution preserved the jurisdiction, including inherent jurisdiction which existed on the date when the Constitution came into force, and accordingly, the High Court is the repository of power enabling it to reach its arms to do justice. Such being the case, I am of the view that the High Court has a duty to use its inherent powers, in appropriate cases for the ends of justice, equity and good conscience. Furthermore, in the commercial world of today it is the duty of the High Court to protect the honest businessman against persons who use unscrupulous means to cheat such a businessman. Failure to do so, would amount to eroding the confidence of the citizens in the High Court. (The Hon’ble Justice Shekhar B. Saraf G.A. No. 725 of 2019 With C.S. No. 50 of 2019 Tata Chemicals Ltd. Versus M/S Kshitish Bardhan Chunilal Nath and Others WITH G.A. No. 733 of 2019 With C.S. 51 of 2019 Tata Chemicals Ltd. Versus Ashok Kumar Saha & Anr.)

We cannot help but disapprove the approach of the High Court for reasons already noticed in Dwarikesh Sugar Industries Ltd. vs. Prem Heavy Engineering Works (P) Ltd. and Another, 1997 (6) SCC 450, observing :-

“32. When a position, in law, is well settled as a result of judicial pronouncement of this Court, it would amount to judicial impropriety to say the least, for the subordinate courts including the High Courts to ignore the settled decisions and then to pass a judicial order which is clearly contrary to the settled legal position. Such judicial adventurism cannot be permitted and we strongly deprecate the tendency of the subordinate courts in not applying the settled principles and in passing whimsical orders which necessarily has the effect of granting wrongful and unwarranted relief to one of the parties. It is time that this tendency stops.”

In the mater of Authorized Officer , State Bank of Travancore and Ors. Vs. Mathew K.C. 2018 (3) SCC 85 , where Honb’le Supreme Court ruled as under ;

“JUDICIAL ADVENTURISM BY HIGH COURT –PASSING ORDER BY IGNORING LAW SETTLED BY COURT ”

It is duty of the court to apply the correct law even if not raised by the party.

If any order against settled law is to be passed then it can be done only by a reasoned order.

Interest Of Victim And Society At Large Must Also Be Kept In View While Sentencing: SC [Read Judgment]

"The courts must not only keep in view the right of the accused, but must also keep in view the interest of the victim and society at large. The courts have been consistent in approach that a reasonable proportion has to be maintained between the gravity of the offence and the punishment. While it is true that the sentence imposed upon the accused should not be harsh, inadequacy of sentence may lead to sufferance of the victim and the community at large." In Suryakant Baburao @ Ramrao Phad vs. State of Maharashtra, IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 1161 2019 (Arising out of SLP(Crl.) No.8894 of 2018) SURYAKANT BABURAO @ RAMRAO PHAD ...Appellant VERSUS STATE OF MAHARASHTRA AND OTHERS

In State of Punjab v. Bawa Singh (2015) 3 SCC 441, the Supreme Court in para (16) held as under:- “16. ……. undue sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy of law. It is the duty of every court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed. The sentencing courts are expected to consider all relevant facts and circumstances bearing on the question of sentence and proceed to impose a sentence commensurate with the gravity of the offence. The court must not only keep in view the rights of the victim of the crime but also the society at large while considering the imposition of appropriate punishment. Meagre sentence imposed solely on account of lapse of time without considering the degree of the offence will be counterproductive in the long run and against the interest of the society.”

Having carefully considered the submissions made by the learned senior counsel for the parties and having examined the law laid down by the Constitution Benches in the abovesaid decisions, we would like to sum up the legal position in the following terms :-

(1) The law laid down by this Court in a decision delivered by a Bench of larger strength is binding on any subsequent Bench of lesser or co-equal strength.

(2) A Bench of lesser quorum cannot doubt the correctness of the view of the law taken by a Bench of larger quorum. In case of doubt all that the Bench of lesser quorum can do is to invite the attention of the Chief Justice and request for the matter being placed for hearing before a Bench of larger quorum than the Bench whose decision has come up for consideration. It will be open only for a Bench of co- equal strength to express an opinion doubting the correctness of the view taken by the earlier Bench of co- equal strength, whereupon the matter may be placed for hearing before a Bench consisting of a quorum larger than the one which pronounced the decision laying down the law the correctness of which is doubted.

(3) The above rules are subject to two exceptions : (i) The abovesaid rules do not bind the discretion of the Chief Justice in whom vests the power of framing the roster and who can direct any particular matter to be placed for hearing before any particular Bench of any strength; and

(ii) In spite of the rules laid down hereinabove, if the matter has already come up for hearing before a Bench of larger quorum and that Bench itself feels that the view of the law taken by a Bench of lesser quorum, which view is in doubt, needs correction or reconsideration then by way of exception (and not as a rule) and for reasons it may proceed to hear the case and examine the correctness of the previous decision in question dispensing with the need of a specific reference or the order of Chief Justice constituting the Bench and such listing. Such was the situation in Raghubir Singh & Ors. and Hansoli Devi & Ors.(supra).

Supreme Court of India

Central Board Of Dawoodi Bohra ... vs State Of Maharashtra & Anr on 17 December, 2004

Author: R.C.Lahoti

Bench: R.C.Lahoti Cji, S.V.Patil, K.G.Balakrishnan, B.N.Srikrishna, A.K.Mathur

           CASE NO.:

Writ Petition (civil)  740 of 1986

It held, citing the Supreme Court’s judgment in Delhi Judicial Service Association’s case that the Supreme Court and the high court, being the court of record, shall have the powers as well as the duty to protect the authority and dignity of courts.

Citing another case, R.L. Kapur v State of Madras (1972), the division bench of the high court held that under Article 215 of the Constitution, the high court as a court of record possesses inherent power and jurisdiction, which is a special one, not arising or derived from Contempt of Courts Act and the provisions of Section 3 of 1926 Act.   t was specifically held in that case that under Article 215 of the Constitution, no law made by a legislature could take away the jurisdiction conferred on the high court nor it could confer it afresh by virtue of its own authority. The high court, therefore, held that it has got wide inherent power to punish for contempt not only of subordinate courts, but of the high court itself.

“The objective of the contempt proceedings is not to punish a contemner for insult of a particular judge, but for saving the dignity of the judicial system. In case the punishment is not awarded to a person, who by his publication scandalises and lowers the authority of not only the Court but has lowered the authority of the judiciary in the eyes of general public…the faith of the general public in the judiciary will be shattered,” the high court had held in its order.

The Hon'ble Supreme Court in the judgment in Harjinder Singh Vs State of Punjab and others, reported in (1985) 1 SCC 422 has held as follows:

5. ... ... ... On April 7, 1984 the appellant filed an application that as the prosecution versions in the police challan case and the complaint case were conflicting and the number of accused and the prosecution witnesses were also different, the trial of the two cases may not be held together. While this application was pending, the respondents made an application on April 24, 1984 that the police challan case and the complaint case be consolidated and clubbed together. That application of theirs was allowed by the learned Additional Judge who by his order dated April 24, 1984 directed that the cases may be clubbed and consolidated and the evidence recorded in one case be read as evidence in the other case.

AS PER ASSIGNMENT The Supreme Court has held in A.H. Ansari & others Vs. High Court of Judicature at Allahabad [1997 (11) SCC 230] that the Judges of the High Court are required to hear the matter assigned to him by the Hon'ble Chief Justice. They cannot entertain the matters on their own in respect of which jurisdiction has not been assigned to them, and if any such judgments are made exceeding their assignment the appellate court can take cognizance and scrutinize the judgment.

Vide A.R. Antulay v R.S. Nayak, AIR 1988 SC 1531:

           “To err is human. Courts including the apex one are

           no  exception.    To  own   up  the   mistake  when    

           judicial satisfaction is reached does not militate against 

           its status or authority. Perhaps it would enhance both.” 

                                                                        

P 65……..Most importantly, on neither occasion did the High Court indicate the slightest of reasons or any application of mind as to why it endorsed the findings of the inquiry officer or rejected the contentions of the appellant or even why such a harsh of punishment was called for in the circumstances. After all, it was also the finding of the inquiry officer that there was no evidence of the appellant having entered the motorman's cabin on any other occasion.

P 72. FMA 26 of 2019 is allowed as above with costs assessed at Rs.1 lakh to be paid by the High Court to the appellant. Calcutta High Court (Appellate Side)Mintu Mallick vs The Hon'Ble High Court At Calcutta ... on 4 July, 2019

Common sense – first principle

Menka GandhiVs. Union of India, (1978) article 21 In Maneka Gandhi vs the Union of India (1978 AIR SC 597), the apex court held that the "procedure" under Article 21 had to be fair, just and reasonable, and would have to be also tested with Article 14 (equality) and 19 (the freedoms) thereby ushering in the era of "substantive due process".

·         State of Haryana Vs. Bhajan Lal

·         Citation: Bhajan Lal: State of Haryana and Others Versus. Ch. Bhajan Lal and Others, 1992 Supp (1) SCC 335; 1992 Cri LJ 527= AIR 1992 SC 604 [Full PDF Judgment]

Extract From The Judgment

6. The investigation of an offence is the field exclusively reserved for the police officers whose powers in that field are unfettered so long as the power to investigate into the cognizable offences is legitimately exercised in strict compliance with the provisions falling under Chapter XII of the Code and the Courts are not justified in obliterating the track of investigation when the investigating agencies are well within their legal bounds. A noticeable feature of the scheme under Chapter XIV of the Code is that a Magistrate is kept in the picture at all stages of the police investigation but he is not authorised to interfere with the actual investigation or to direct the police how that investigation is to be conducted. But if a police officer transgresses the circumscribed limits and improperly and illegally exercises his investigatory powers in breach of any statutory provision causing serious prejudice to the personal liberty and also property of a citizen, then the Court, on being approached by the person aggrieved for the redress of any grievance has to consider the nature and extent of the breach and pass appropriate orders as may be called for without leaving the citizens to the mercy of police echelons since human dignity is a dear value of our Constitution. No one can demand absolute immunity even if he is wrong and claim unquestionable right and unlimited powers exercisable upto unfathomable cosmos. Any recognition of ï7 3 Power’ which no authority on earth can enjoy.

The Supreme Court of India in Justice KS Puttaswamy (RETD) vs Union of India and Ors WP (C) 494/2012 has declared that Article 21 of the Indian Constitution includes within it a Right to Privacy.

SC:Findings must be based on facts - HC erred - order set aside - Existence of Debt or Liability of Accused in the offence u/s. 138 of N. I. Act.

Concurrent findings of two Courts below that cheque contained signature of Accused and was given to Complainant to present in the Bank. Presumption u/s. 139 raised. No evidence led to rebut the presumption. Accused even did not come in Witness Box to support his case. Only defence taken in Reply to Notice that the Cheque was stolen by the Complainant. Rejected by two Courts below. No contrary views expressed by Revisional Court. Finding of Revisional Court that Accused has been successful in creating doubt in mind of Court with regard to existence of Debt or Liability, held erroneous.

Case:

Kishan Rao Vs. Shankargouda

Citation:

2018 ALL SCR (Cri) 1197

SC:Mere summary disposal of a Special Leave Petition does not conclude the issue on merits.

It is true that the exercise of power under aforesaid Article 226(2) of the Regulations by the very same  Committee did not meet with the approval, and the Division Bench in certain cases did reject the plea of the State Government, and affirmed the orders passed by the Single Judge setting aside the orders of compulsory retirement. It is also true that in those matters Special Leave Petitions were dismissed summarily. However, it is well settled that mere summary disposal of a Special Leave Petition does not conclude the issue on merits.

Case:

M/s Rup Diamonds and others Vs. Union of India & Ors .

Citation:

(1989) 2 SCC 356 para 8.

Reiterated in:

2019 (5) Supreme 227 SC

SC orders 5 Lakhs compensation for arrests without following prescribed procedure u/s. 41 and 41-A of Cr.P.C.

Arrest of two ladies, one Doctor and another an Advocate, in an offence registered u/s. 420/34 IPC, without following the due procedure as prescribed u/s. 41 and 41-A of Cr.P.C., it jeopardized their dignity and liberty, state directed to pay compensation of Rs. 5 Lakhs each.

Case:

Dr. Rini Johar and Anr. Vs. State of M.P. and Ors.

Citation:

Writ Petition(Criminal) No. 30 of 2015.

Bench / Judges:

Dipak Mishra and Shiva Kirti Singh

Decided by Supreme Court on 30/06/2016.  https://indiankanoon.org/doc/103942103/

https://indiankanoon.org/doc/1951858/  It is settled position or law that the High Court in exercise of this inherent power in wider sense possesses :-

(a) the power to pass an order which may be necessary to give effect to any order under this Code;

(b) the power, using as a sheild, to prevent the abuse of the process of the court;

(c) the power to secure the ends of Justice and ; (d) finally the ultimate power to perform the real and substantial justice.

But defination is only to be found in the code of Civil Procedure. Section 2(9) of the CPC defined judgment as follows :-

" 'Judgment' means the statement given by the Judge on the ground of a decree or order. In Black's Law Dictionary 'judgment' has been defined as follows :-

"Judgment. A sense of knowledge sufficient to comprehend nature of transaction.

The information of an opinion or notion concerning something by exercising the mind upon it.

The official and authentic decision of a court of justice upon the respective rights and claims of the parties to an action or suit therein litigated and submitted to its determination."

 In another case of Janha Das v. Daitari Chandra Pattanaik reported in (1991) 4 Orissa Criminal Report-484, the Orissa High Court held that the dismissal of the criminal Revision for default was neither a judgment nor a final order and such order is administrative in nature rather than a judicial order and as such, Section 362 is not be a bar to restoration of the criminal revision. In paragraph-3 of the said judgment the Court held as follows:

In Indirect Tax Association Vs. R. K. Jain (2010) 8 SCC 281, it is ruled by Hon‟ble Supreme Court that; ―Judge have their accountability to the society and their accountability must be judged by their conscience and oath of their office, that is to defend and uphold the Constitution and the laws without fear and favor with malice towards none, with charity for all, we strive to do the right.‖

Hon‟ble Supreme Court in Davinder Pal Singh Bhullar‟s Case (2011) 14 SCC 770 had observed as under; ―It is a myth that the Judges, taking the oath of office as a judge, a man ceases to be human and strips himself of all predilections, becomes a passionless thinking machine.”

In “Madhav Hayawadanrao Hoskot vs. State of Maharashtra; (1978) 3 SCC 544” Justice Shri V.R. Krishna Iyer reproduced the well-known words of Mr. Justice William J. Brennan, Jr. and held as under:

“16. Nothing rankles more in the human heart than a brooding sense of injustice. 4

…Democracy’s very life depends upon making the machinery of justice so effective that every citizen shall believe in and benefit by its impartiality and fairness. The social service which the Judges render to the community is the removal of a sense / fear of injustice from the hearts of people, which unfortunately is not being done, and the people (victims & dejected litigants) have been left abandoned to suffer and bear their existing painful conditions, and absolutely on the mercy of GOD.”

Hon‟ble Uttaranchal High Court in Laxman Singh Rana Vs. Jagdish in C-482 No. 1014486/ 2015 vide order dated 8th December, 2015 it is ruled as under;

―As per the mandate of Article 14 of the Constitution of India, every litigant should be given equal treatment. Ordinarily, no case / suit should be directed to be decided by the Trial Court out of turn, unless, of course, there are compelling circumstances to do so.‖ Similar law is followed in Ishk Lal Vs. Avodh Bihari Mittal in WPMS No. 2210 of 2015 vide order dated 8 September, 2015 it is read as under;

―As per mandate of Article 14 of the Constitution of India, every litigant should be given equal treatment & ordinarily, no case should be directed to be decided out of turn, on priority basis unless, of course, there are compelling circumstances to do so. Undisputedly, there are so many appeals, which were filed prior to the appeal, in question, which are still pending and waiting for their turn. I do not find any compelling circumstance justifying out of turn hearing of the appeal.‖

Joinder of causes of action - Several causes of action can be joined against same defendant or same defendants jointly - There cannot be joinder of causes of action when there are different set of defendants who have different causes of actions. (2019(1) Apex Court Judgments 424 (S.C.)

Head note by

Chander Mohan

Advocate

7814266184

The underlying object has been succinctly stated by Scrutton, L.J., in the leading case of R. v. Kensington Income Tax Commissioners, (1917) 1 KB 486 : 86 LJ KB 257 : 116 LT 136 in the following words:

"[I]t has been for many years the rule of the Court, and one which it is of the greatest importance to maintain, that when an applicant comes to the Court to obtain relief on an ex parte statement he should make a full and fair disclosure of all the material facts- it says facts, not law. He must not misstate the law if he can help it; the Court is supposed to know the law. But it knows nothing about the facts, and the applicant must state fully and fairly the facts; and the penalty by which the Court enforces that obligation is that if it finds out that the facts have not been fully and fairly stated to it the Court will set aside any action which it has taken on the faith of the imperfect statement".

DELETE LINES FROM ORDER

in Raghubir Saran v. State of Bihar , as follows:

When the question arises before the High Court in any specific case whether to resort to such undefined power it is essential for it to exercise great caution and circumspection. Thus when it is moved by an aggrieved party to expunge any passage from the order or judgment of a subordinate Court it must be fully satisfied that the passage complained of is wholly irrelevant and unjustifiable, that its retention on the records will cause serious harm to the person to whom it refers and that its expunction will not affect the reasons for the judgment or order.

Courts Can Interfere With Administrative Actions Only If It Suffers From Vice Of Illegality, Irrationality Or Procedural Impropriety: SC

https://www.livelaw.in/top-stories/judicial-review-of-administrative-decisions-148169

CIVIL APPEAL Nos.7319­7320 OF 2019 (Arising out of S.L.P.(C) Nos. 172­173 of 2019) 

MUNICIPAL COUNCIL NEEMUCH .... APPELLANT(S) 

VERSUS 

MAHADEO REAL ESTATE AND ORS. .... RESPONDENT(S) 

 It could thus be seen that the scope of judicial review of 

an administrative action is very limited. Unless the Court comes 

to a conclusion, that the decision maker has not understood the 

law correctly that regulates his decision­ making power or when 

it is found that the decision of the decision maker is vitiated by 

irrationality and that too on the principle of “Wednesbury 

Unreasonableness” or unless it is found that there has been a 

procedural impropriety in the decision­making process, it would 

not be permissible for the High Court to interfere in the decision 

making process. It is also equally well settled, that it is not 

permissible for the Court to examine the validity of the decision 

but this Court can examine only the correctness of the decision­ 

making process. 

 17.It could thus be seen that an interference by the High 

Court would be warranted only when the decision impugned is 

vitiated by an apparent error of law, i.e., when the error is 

apparent on the face of the record and is self evident. The High 

Court would be empowered to exercise the powers when it finds 

that the decision impugned is so arbitrary and capricious that 

no reasonable person would have ever arrived at. It has been 

reiterated that the test is not what the court considers 

reasonable or unreasonable but a decision which the court 

thinks that no reasonable person could have taken. Not only 

this but such a decision must have led to manifest injustice.

GROUND THAT CHARGE OF DISOBEDIENCE OF THE ORDERS OF THE HIGHE R AUTHORIT Y  UNCONSTITUTIONAL ORDER

https://www.lawsfeed.com/supreme-court-judgement/mohdyunus_khan_vs_state_of_up_28-09-2010

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO……………/2010

(Arising out of S.L.P.(C) NO. 19318/2007)

Mohd. Yunus Khan ... Appellant

Versus

State of U.P. & Ors. ...Respondents

J U D G M E N T

Dr. B.S. CHAUHAN, J.

1. Leave granted.

The facts of the present case reveal that a person who initiated

the disciplinary proceedings against the appellant for disobeying his

own orders; appointed his subordinate as an inquiry officer; appeared

as a witness in the proceedings to prove the charges of disobedience

of his orders; accepted the enquiry report; and further passed the order

of punishment - i.e. dismissal of the appellant from service. The

1

proper opportunity of

hearing to the appellant. The High Court failed to consider that, in a case where there had been a violation of the statutory provisions, or principles of

natural justice, power of judicial review required to be exercised. The

appeal deserves to be allowed.

Punishment for misconduct can be

imposed in consonance with the statutory rules and principles of

natural justice. (See Bachhittar Singh v. State of Punjab & Anr.,

AIR 1963 SC 395; Union of India v. H.C. Goel, AIR 1964 SC 364;

Anil Kumar v. Presiding Officer & Ors., AIR 1985 SC 1121;

Moni Shankar v. Union of India & Anr. (2008) 3 SCC 484; and

Union of India & Ors. v. Prakash Kumar Tandon, (2009) 2 SCC

541).

16.

Our Constitution protects not only the life and liberty

but also the dignity of every person. Life convicts and hardcore

criminals deprived of personal liberty are also not wholly denuded of

their Constitutional rights. Arbitrariness is an anathema to the

principles of reasonableness and fairness enshrined in our

constitutional provisions. The rule of law prohibits the exercise of

power in an arbitrary manner and/or in a manner that travels beyond

the boundaries of reasonableness. Thus, a statutory authority is not

permitted to act whimsically/arbitrarily. Its actions should be guided

by the principles of reasonableness and fairness. The authority cannot

be permitted to abuse the law or to use it unfairly.

The legal maxim “nemo debet esse judex in propria causa” (no

man shall be a judge in his own cause) is required to be observed by

all judicial and quasi-judicial authorities as non-observance thereof is

treated as a violation of the principles of natural justice. (Vide

Secretary to Government, Transport Department v. Munuswamy

Mudaliar & Anr., AIR 1988 SC 2232; Meenglas Tea Estate v.

The Workmen, AIR 1963 SC 1719; and Mineral Development Ltd.

v. The State of Bihar & Anr., AIR 1960 SC 468).

This Court in A.U. Kureshi v. High Court of Gujarat &

Anr., (2009) 11 SCC 84, placed reliance upon the judgment in Ashok

Kumar Yadav & Ors. v. State of Haryana & Ors., (1985) 4 SCC

417, and held that no person should adjudicate a dispute which he or

she has dealt with in any capacity. The failure to observe this

principle creates an apprehension of bias on the part of the said

person. Therefore, law requires that a person should not decide a case

wherein he is interested. The question is not whether the person is

actually biased but whether the circumstances are such as to create a

reasonable apprehension in the minds of others that there is a

likelihood of bias affecting the decision.

An order in violation of the principles of natural justice may be

void depending on the facts and circumstances of the case. (Vide Raja

Jagdambika Pratap Narain Singh v. Central Board of Direct

Taxes & Ors., AIR 1975 SC 1816; Smt. Maneka Gandhi v. Union

of India & Anr., AIR 1978 SC 597; Krishan Lal v. State of J & K,

(1994) 4 SCC 422; State Bank of Patiala & Ors. v. S.K. Sharma,

AIR 1996 SC 1669; Union of India & Anr. v. M/s. Mustafa &

Najibai Trading Co. & Ors., AIR 1998 SC 2526; and Vishnu Dutt

& Ors. v. State of Rajasthan & Ors., (2005) 13 SCC 592). “Principles of natural

justice are to some minds burdensome but this price-a small price

indeed-has to be paid if we desire a society governed by the rule of

law.”

As the punishment order had been passed in violation of the

statutory rules and the principles of natural justice as well

IMPORTANT ORDERs  &  RULEs  IN Civil Procedure Code :----

 1) To delete/Add parties ORDER 1 RULE 10.

2) Amendment of Suit to add defendants   ORDER 1 RULE 10(4)

3) Substitute service   ORDER 5 RULE 20

4) Amendment of pleadings ORDER 6 RULE 17

5) Additional W.S ORDER 8 RULE 9

6) Setting aside exparte order ORDER 9RULE 7

7) Restoration ORDER 9 RULE 9

8) Setaside exparte decree ORDER 9 RULE 13

9) To order production of documents ORDER 11 RULE 14

11) Inspection of documents ORDER 11 RULE 15

12) To produce documents    ORDER 12 RULE 8

13) Production of documents    ORDER 7 RULE 14(3)

14) To return unmarked documents    ORDER 13 RULE 7(2)

15) To return marked Documents Order 13 RULE 9

16) Adjournment order 17 RULE 1

17) Recalling witness order 18 RULE 17

18) To grant installments after decree passed    ORDER 20 RULE 11(2)

19) Stay of execution    ORDER 21 RULE 26

20) Delivery of immovable property    ORDER 21RULE 35

21) To Break open door    ORDER 21 RULE 35(3)

22) Attachments of movables of JDRs    ORDER 21RULE 43

23) Attachments of Payorders of JDRs    ORDER 21RULE 45(1)

24) Attachment of salary of JDRs    ORDER 21 RULE 48

25) Attachment of Immovable property of JDRs    ORDER 21 RULE 54

26) Sale of attached property   ORDER 21 RULE 64

27) Adjournment/stoppage of sale ORDER 21RULE 69

28) Delivery of movable property    ORDER 21 RULE 9

29) To bring L.Rs on record incase of death of Plaintiff    ORDER 22 RULE 3

30) To bring L.Rs on record incase of death of Defendant    ORDER 22RULE 4

31) For Compromise    ORDER 23 RULE 3

32) Appointment of commissioner to examine witness    ORDER 26 RULE 1

33) *Appointment of commissioner to make local investigation"    ORDER 26 RULE 9

34) Appointment of commissioner to examine adjust A/Cs    ORDER 26 RULE 11

35) Appointment of commissioner to make partition of immovable property    ORDER 26 RULE 13

36) Disclose partners names    ORDER 30RULE 2

37) Appointment of guardian for minors    ORDER 33RULE 1

38) Removal of guardian    ORDER 32 RULE 9

39) To declare as major    ORDER 32 RULE 12

40) Appointment of guardian of an unsound person    ORDER 32 RULE 15

41) Attachment before judgment    ORDER 38 RULE 5

42) Appointment of receiver    ORDER 40 RULE 1

43) Regular appeal    ORDER 41 RULE 1

44) Stay of execution of decree in appeal    ORDER 41 RULE 5(1)

45) Restore of appeal dismissed for default   ORDER 41 RULE 19

46) Production of additional evidence in appeal   ORDER 41 RULE 27

47) Second appeal     ORDER 42 RULE 1

48) Review of Judgment    ORDER 47 RULE 1

49) Advancement      RULE 109(2)

50) Third party for C.Cs       RULE188(2)

51) Amendment of Judgments/decrees/orders ORDER Sec.152  

52) To summon doctor for evidence (Handover summons)    ORDER 16 RULE 7(4).

It is well-settled that

an executing court cannot travel beyond the order or decree

under execution (see Rameshwar Dass Gupta v. State of

U.P. and Another, (1996) 5 SCC 728).  IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 7800 OF 2014

S. Bhaskaran ...Appellant(s) Versus Sebastian (Dead) By Lrs. & Ors. ...Respondent(s)

"A Judge Is Also Judged By the Quality And Purity of His Character", SC Upholds Dismissal Of Magistrate Who Passed Favourable Orders For A Lady Lawyer

In this case, the officer decided the cases because of his proximate relationship with a lady lawyer and not because the law required him to do so. This is also gratification of a different kind.. The Judicial Officer concerned did not live upto the expectations of integrity, behavior and probity expected of him. His conduct is as such that no leniency can be shown and he cannot be visited with a lesser punishment.

The bench observed that a judge must decide the case only on the basis of the facts on record and the law applicable to the case. If a judge decides a case for any extraneous reasons then he is not performing his duty in accordance with law, it added.

The first and foremost quality required in a Judge is integrity. The need of integrity in the judiciary is much higher than in other institutions. The judiciary is an institution whose foundations are based on honesty and integrity. It is, therefore, necessary that judicial officers should possess the sterling quality of integrity.The behavior of a Judge has to of an exacting standard, both inside and outside the Court.

Judges are also public servants. A Judge should always remember that he is there to serve the public. A Judge is judged not only by his quality of judgments but also by the quality and purity of his character. Impeccable integrity should be reflected both in public and personal life of a Judge. One who stands in judgments over others should be incorruptible. That is the high standard which is expected of Judges

Judges must remember that they are not merely employees but hold high public office and that the standard of conduct expected of a Judge is much higher than that of an ordinary person.

https://drive.google.com/viewerng/viewer?embedded=true&url=https://www.livelaw.in/pdf_upload/pdf_upload-364719.pdf

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 7306 OF 2019

(Arising out of SLP (C) No. 33818/2015)

SHRIRANG YADAVRAO WAGHMARE APPELLANT(S)

VERSUS

THE STATE OF MAHARASHTRA AND ORS. RESPONDENT(S)

https://www.livelaw.in/top-stories/judicial-review-of-administrative-decisions-148169

The Supreme Court has reiterated that while exercising its powers of judicial review of administrative action, Courts could not interfere with the administrative decision unless it suffers from the vice of illegality, irrationality or procedural impropriety

The scope of judicial review of an administrative action is very limited. Unless the Court comes to a conclusion, that the decision maker has not understood the law correctly that regulates his decision-making power or when it is found that the decision of the decision maker is vitiated by irrationality and that too on the principle of "Wednesbury Unreasonableness" or unless it is found that there has been a procedural impropriety in the decision-making process, it would not be permissible for the High Court to interfere in the decision making process. It is also equally well settled, that it is not permissible for the Court to examine the validity of the decision but this Court can examine only the correctness of the decision-making process.

An interference by the High Court would be warranted only when the decision impugned is vitiated by an apparent error of law, i.e., when the error is apparent on the face of the record and is self evident. The High Court would be empowered to exercise the powers when it finds that the decision impugned is so arbitrary and capricious that no reasonable person would have ever arrived at. It has been reiterated that the test is not what the court considers reasonable or unreasonable but a decision which the court thinks that no reasonable person could have taken. Not only this but such a decision must have led to manifest injustice.

In facts of the case, the bench observed that the decision of the State Government or the Commissioner could not be termed as illegal, improper, unreasonable or irrational. The bench also said that the decision of the Commissioner which is undoubtedly in larger public interest, which would ensure that the Municipal Council earns a higher revenue by enlarging the scope of the competition

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL Nos.7319­7320 OF 2019

(Arising out of S.L.P.(C) Nos. 172­173 of 2019)

MUNICIPAL COUNCIL NEEMUCH .... APPELLANT(S)

VERSUS

MAHADEO REAL ESTATE AND ORS. .... RESPONDENT(S)

https://drive.google.com/viewerng/viewer?embedded=true&url=https://www.livelaw.in/pdf_upload/pdf_upload-364560.pdf

Anita Kushwaha vs. Pushap Sudan, ( (2016) 8 SCC 509 ) has held that access of justice is an integral part of the guarantee contained in Article 21 and 14 of the Constitution of India which guarantees equality before law and equal protection of law to not only citizens but non-citizens also.

8. False averments in pleadings are sufficient to attract Chapter XI of the Indian Penal Code:

xxx xxx xxx 8.7. Making false averment in the pleading pollutes the stream of justice. It is an attempt at inviting the Court into passing a wrong judgment and that is why it must be treated as an offence.

RECALL For Order

Beyond the scope of pleading…….which is impermissible and unwarranted .

Sub para:   “ ….. “ but court has observed . no way stated has approval

Sub : go beyond SC judgement ……….. order should be recalled . respondent has supported the petitioner , beyond the scope of pleading .  

Court should apply the mind on pleading .  sacared documents on record. Abuse of position and power, abuse of the process of court by the court. If a subordinate court commits an abuse of the process of the Court, a superior court has the power, nay the duty to prevent the said abuse becoming perpetual by interfering with the proceeding. https://indiankanoon.org/docfragment/93284/?formInput=abuse%20of%20the%20process%20of%20court%20by%20the%20court

Counter has annexed the documents which are fabricated …….mislead

Criminal contempt mislead statement  SC order agarwal or CRPC 340 .

Misprepresented the fact .

Shy lock story by shakesphere……

13. The learned Single Judge has concluded that the Arbitrator, in formulating, during the course of the final award, an additional issue whether the deduction was neither LD nor a penalty, has travelled beyond the scope of the reference and pleadings and written submissions of the parties. Delhi High Court Engineers India Limited vs Tema India Limited on 7 January, 2016

Even there was no pleading by the respective parties on that score, as it appears from the pleadings. It is settled legal position that the Court is bound to proceed on the basis of the pleading and cannot travel beyond the pleading save and except in some exceptional cases where the writ Court may consider that any point is required to be adjudicated and to that effect Court may frame that question and may direct the person concerned to answer that issue. Reliance may be placed to the judgement passed in the case Commissioner, Bangalore Development Authority -Vs.- S.Vasudeva reported in 2000(2) SCC.439 where it was held that Court should not travel beyond the scope of the writ petition and/or beyond the pleading therein. On the point that the Court may frame a new question and may answer that point by giving an opportunity of hearing is also the view decided by the Apex Court in the case V.K.Majotra -Vs.- Union of India reported in 2003(8) SCC. 40 whereby the Court held that additional point not pleaded, could be raised by the writ Court, subject to providing of an opportunity of hearing to the affected parties, but such power should be exercised in rarest of rare cases and when fact and circumstances require such adjudication. Even in the case Som Mittal -Vs.- Government of Karnataka reported in 2008(3) SCC.574, a judgement of three Judges' Bench, the Court held that when there is necessity to decide or comment upon the issue not raised by the party, the Court may do so after inviting the parties so that they may put forward the views on such issue. Judgement Passed In The Case The ... vs T.R.Challappan Reported In Air ... on 30 June, 2009 calcutta HC , https://indiankanoon.org/docfragment/189887145/?formInput=Beyond%20the%20scope%20of%20pleading

It is well settled that since the principle of promissory estoppels is based on equitable principles, a person who obtains appointment by misrepresenting his educational qualification cannot be permitted to invoke the principle of promissory estoppel when his appointment is cancelled because of such misrepresentation. Reliance in this connection may be made to the judgment of the Apex Court in the case of Central Airmen Selection Board Vs. Surender Kumar Das reported in 2003(1)SCC 152.

CONTEMPT OF COURT  https://indiankanoon.org/doc/994171/   Supreme Court of India

S. K. Sarkar, Member, Board Of ... vs Vinay Chandra Misra on 12 December, 1980

Equivalent citations: 1981 AIR 723, 1981 SCR (2) 331

Article 215 of the Constitution provides : "Every High Court shall be a court of record and shall have all the powers of such a court including the power to punish for contempt of itself."

Entry 14 of List III of the Seventh Schedule is to this effect : "Contempt of Court, but not including contempt of the Supreme Court." A provision analogous to Article 215 is Article 129 which preserves to the Supreme Court all the powers of a Court of Record including the power to punish for contempt of itself. Entry 77 of List I of the Seventh Schedule is relatable to Article 129.

Articles 129 and 215 preserve all the powers of the Supreme Court and the High Court, respectively, as a Court of Record which include the power to punish the contempt of itself. As pointed out by this Court in Mohd. Ikram Hussain v. The State of U.P., there are no curbs on the power of the High Court to punish for contempt of itself except those contained in the Contempt of Courts Act. Articles 129 and 215 do not define as to what constitutes contempt of court. Parliament has, by virtue of the aforesaid Entries in List I and List III of the Seventh Schedule, power to define and limit the powers of the courts in punishing contempt of court and to regulate their procedure in relating thereto. Indeed, this is what is stated in the Preamble of the Act of 1971.

Section 2(c) of the Act defines `criminal contempt". Section 9 emphasises that "nothing contained in this Act shall be construed as implying that any disobedience, breach, publication or other act is punishable as contempt of court which would not be so punishable apart from this Act". Section 10 runs as under :

"Every High Court shall have and exercise the same jurisdiction, powers and authority, in accordance with the same procedure and practice, in respect of contempts of courts subordinate to it as it has and exercises in respect of contempts of itself."

Then, there is a proviso which is not material for our purpose. The provision in Section 10 is but a replica of Section 3 of the 1952 Act. The phrase "courts subordinate to it" used in Section 10 is wide enough to include all courts which are judicially subordinate to the High Court, even though administrative control over them under Article 235 of the Constitution does not vest in the High Court. Under Article 227 of the Constitution the High Court has the power of superintendence over all courts and tribunals throughout the territories in relation to which it exercises jurisdiction. The Court of Revenue Board, therefore, in the instant case, is a court "subordinate to the High Court" within the contemplation of Section 10 of the Act.

Section 14 provides for the procedure where contempt is committed in the face of the Supreme Court or a High Court. Section 15 is very material for our purpose. It provides in regard to cognizance of `criminal contempt' in cases other than those falling under Section 14. The material portion of Section 15 reads thus :

"(1) In the case of a criminal contempt, other than a contempt referred to in Section 14, the Supreme Court or the High Court may take action on its own motion or on a motion made by-

(a) the Advocate-General, or

(b) any other person, with the consent in writing of the Advocate-General.

(2) In the case of any criminal contempt of a subordinate court, the High Court may take action on a reference made to it by the subordinate court or on a motion made by the Advocate-General or, in relation to a Union Territory, by such Law Officer as the Central Government may, by notification in the Official Gazette, specify in this behalf............."

The operation of sub-section (1) appears to be confined to cases of `criminal contempt' of the Supreme Court or the High Court, itself. Criminal contempt of a subordinate court is dealt with in sub-section (2).

7. Mr. Jethmalani also urged that even Rule 6 of the aforesaid Rules had not been followed, as notices have not been issued to the respondents in Form 1, as prescribed and the proceedings were, therefore, liable to be discontinued on such ground as well.

8. In support of his aforesaid submissions, Mr. Jethmalani referred to and relied upon the decision of this Court in P.N. Duda vs. P. Shiv Shanker & Ors. [(1988) 3 SCC 167], in which the provisions of Section 15(1)(a) and (b) of the Contempt of Courts Act, 1971, read with Explanation (a) and Rule 3(a),

(b) and (c) of the Contempt of Supreme Court Rules, 1975, had been considered in paragraphs 53 and 54 of the judgment. It was pointed out that a direction had been given by this Court that if any information was lodged even in the form of a petition inviting this Court to take action under the Contempt of Courts Act or Article 215 of the Constitution, where the informant is not one of the persons named in Section 15 of the said Act, it should not be styled as a petition and should not be placed for admission on the judicial side. On the other hand, such a petition was required to be placed before the Chief Justice for orders in Chambers and the Chief Justice could decide, either by himself or in consultation with the other judges of the Court, whether to take any cognizance of the information. Mr. Jethmalani submitted that since, despite the aforesaid direction, the application filed by the Amicus Curiae had been placed before the Court in its judicial side, the same was not maintainable on such score as well and the proceedings were liable to be discontinued on such ground also.

9. Mr. Jethmalani also referred to the decision of this Court in Bal Thackrey vs. Harish Pimpalkhute & Ors. [(2005) 1 SCC 254], wherein in the absence of the consent of the Advocate General in respect of a contempt petition filed by a private party under Section 15 of the Contempt of Courts Act, without a prayer for taking suo motu action of contempt, was held to be not maintainable.

10. Mr. Jethmalani urged that the power vested in the High Courts and the Supreme Court under the Contempt of Courts Act, 1971, was a regulatory measure imposing a fetter on a citizen's fundamental right to freedom of speech and would have to be invoked and exercised with utmost caution so as not to infringe upon such fundamental right. Any deviation from the prescribed Rules should not be accepted or condoned lightly and must be deemed to be fatal to the proceedings taken to initiate action for contempt.

11. Mr. Shanti Bhushan, learned Senior Advocate, who appeared for Respondent No.2, while reiterating the submissions made by Mr. Ram Jethmalani, laid special stress on the decision in Duda's case (supra) and reiterated the directions given in such case to the effect that the application made by the Amicus Curiae could have been placed only before the Chief Justice in Chambers on the administrative side and not on the judicial side. Mr. Shanti Bhushan submitted that in matters such as this, the reputation of the Court had to be considered and in view of the deviation from the normal procedure, which was meant to be strictly adhered to, the contempt proceedings and notice issued on the aforesaid application, were liable to be dropped.

The error committed by the Registry of the Supreme Court in placing the matter on the judicial side instead of placing the same before the Hon'ble Chief Justice of India on the administrative side, is an administrative lapse which does not reduce the gravity of the allegations. Even in Duda's case (supra) and more explicitly in Bal Thackrey's case, it has been indicated by this Court that it could have taken suo motu cognizance, had the petitioners prayed for it, even without the consent of the Attorney General, but that such a recourse should be confined to rare occasions only.

Thus, on prima facie satisfaction that there were sufficient grounds for taking action on its own motion, the Court initiated suo motu action by directing issue of notice to the Respondents. Hence, the present contempt proceeding was initiated by the Court on its own motion and it is not covered by clauses (a), (b) and (c) of sub- section (1) of Section 15 of the Contempt of courts Act, 1971 or clauses (b) and (c) of Rule 3 of the Rules to Regulate Proceedings for Contempt of the Supreme Court, 1975. On the other hand, the present proceeding is covered by clause (a) of rule 3 of the said Rules. Merely because the information regarding the allegedly contemptuous statements made by Respondent No.1 and published by Respondent No.2 was furnished to the Court by the learned Amicus Curiae, the proceeding cannot lose its nature or character as a suo motu proceeding. The learned Amicus Curiae was entitled to place the information in his possession before the court and request the court to take action. The petition filed by him constituted nothing more than a mode of laying the relevant information before the court for such action as the court may deem fit. No proceedings can commence until and unless the court considers the information before it and decides to initiate proceedings. If the court considers the information placed before it and initiates proceedings by directing notice to issue to the alleged contemnors the action taken comes within the ambit of Rule 3(a) of the Rules to Regulate Proceedings for Contempt of the Supreme Court, 1975.

189Th Report On Revison Of Court Fee,LAW COMMISSION OF INDIA          189TH REPORT,ON REVISION OF COURT FEES STRUCTURE         FEBRUARY, 2004

https://indiankanoon.org/docfragment/58259708/?formInput=right%20to%20access

CHAPTER IX CONCLUSIONS AND RECOMMENDATIONS On the basis of our discussion in preceding chapters, following conclusions emerge:

1) Right to access to Courts is now recognized as a basic human right and its origin can be traced to Art. 8 of the Universal Declaration of Human Rights passed by the United Nations Organisation in 1948 and to Art. 2 of the International Covenant on Civil and Political Rights to which India is a party.

Supreme Court of India in Joginder Kumar Vs. State of

U.P. and others2 has held as follows:

“20. ..........No arrest can be made because it is

lawful for the police officer to do so. The existence of

the power to arrest is one thing. The justification for

the exercise of it is quite another. The police officer

must be able to justify the arrest apart from his power

to do so. Arrest and detention in police lock-up of a

person can cause incalculable harm to the reputation

and self-esteem of a person. No arrest can be made in

a routine manner on a mere allegation of commission

of an offence made against a person. It would be

prudent for a police officer in the interest of protection

of the constitutional rights of a citizen and perhaps in

his own interest that no arrest should be made without

a reasonable satisfaction reached after some

investigation as to the genuineness and bona fides of

a complaint and a reasonable belief both as to the

person's complicity and even so as to the need to

effect arrest. Denying a person of his liberty is a

serious matter. The recommendations of the Police

Commission merely reflect the constitutional

concomitants of the fundamental right to personal

liberty and freedom. A person is not liable to arrest

merely on the suspicion of complicity in an offence.

There must be some reasonable justification in the

opinion of the officer effecting the arrest that such

arrest is necessary and justified. Except in heinous

offences, an arrest must be avoided if a police officer

issues notice to person to attend the Station House

and not to leave the Station without permission would

do.”

This is a case of blatant violation of

fundamental right by the Police. Having come to such

conclusion, mere quashing the FIR shall not mitigate the

agony which the petitioner was compelled to undergo. In

D.K.Basu Vs. State of West Bengal3

it is held that a

Court of Law cannot close its consciousness and aliveness

to stark realities by recording thus:

“45. The old doctrine of only relegating the

aggrieved to the remedies available in civil law limits

the role of the courts too much, as the protector and

custodian of the indefeasible rights of the citizens.

The courts have the obligation to satisfy the social

aspirations of the citizens because the courts and the

law are for the people and expected to respond to

their aspirations. A court of law cannot close its

consciousness and aliveness to stark realities. Mere

punishment of the offender cannot give much solace

to the family of the victim — civil action for damages

is a long drawn and a cumbersome judicial process.

Monetary compensation for redressal by the court

finding the infringement of the indefeasible right to

life of the citizen is, therefore, useful and at time

perhaps the only effective remedy to apply balm to

the wounds of the family members of the deceased

victim, who may have been the breadwinner of the

family.”

In Arnesh Kumar’s case, Hon'ble Supreme

Court of India has issued directions to ensure that the

Police Officers do not arrest the accused unnecessarily

and Magistrates do not authorize detention casually and

mechanically. The said directions read as follows:

“11. Our endeavour in this judgment is to ensure

that police officers do not arrest the accused

unnecessarily and Magistrate do not authorize detention

casually and mechanically. In order to ensure what we

have observed above, we give the following directions:

11.1. All the State Governments to instruct its

police officers not to automatically arrest when a case

under Section 498-A IPC is registered but to satisfy

themselves about the necessity for arrest under the

WWW.LIVELAW.IN

CRL.P. NO.4306/2019

18

parameters laid down above flowing from Section 41

CrPC;

11.2. All police officers be provided with a check

list containing specified sub-clause under section

41(1)(b)(ii);

11.3. The police officer shall forward the check list

duly filled and furnish the reasons and materials which

necessitated the arrest, while forwarding/producing the

accused before the Magistrate for further detention;

11.4. The Magistrate while authorizing detention of

the accused shall peruse the report furnished by the

police officer in terms aforesaid and only after recording

its satisfaction, the Magistrate will authorize detention;

11.5. The decision not to arrest an accused, be

forwarded to the Magistrate within two weeks from the

date of the institution of the case with a copy to the

Magistrate which may be extended by the Superintendent

of Police of the district for the reasons to be recorded in

writing;

11.6. Notice of appearance in terms of Section 41-

A CrPC be served on the accused within two weeks from

the date of institution of the case, which may be

extended by the Superintendent of Police of the district

for the reasons to be recorded in writing;

11.7. Failure to comply with the directions

aforesaid shall apart from rendering the police officers

concerned liable for departmental action, they shall also

be liable to be punished for contempt of court to be

instituted before the High Court having territorial

jurisdiction.

11.8. Authorising detention without recording

reasons as aforesaid by the Judicial Magistrate concerned

shall be liable for departmental action by the appropriate

High Court.”

(Emphasis Supplied)

(h) The Registrar General shall take necessary

action for initiation of Departmental Enquiry

against the Magistrate as per directions in

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CRL.P. NO.4306/2019

21

para 11.8 of Arneshkumar Vs. State of Bihar

and another (supra).

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

DATED THIS THE 11TH DAY OF OCTOBER, 2019

BEFORE

THE HON’BLE MR. JUSTICE P.S. DINESH KUMAR

CRIMINAL PETITION No.4306 OF 2019

BETWEEN:

SRI. JAIKANTH S

PETITIONER

(BY SHRI. ARUNA SHYAM M, ADVOCATE)

AND :

THE STATE OF KARNATAKA... RESPONDENT

Predisposition To A Particular View Raises Reasonable Doubt Of Judicial Bias' : Sr Adv Shyam Divan Seeks Justice Mishra's Recusal

"Bias may be defined as a pre-conceived opinion or a pre-disposition or pre-determination to decide a case or an issue in a particular manner, so much so that such pre-disposition does not leave the mind open to conviction. It is, in fact, a condition of mind, which sways judgments and renders the Judge unable to exercise impartiality in a particular case",</i> Divan quoted from the SC precedent in <b>State of West Bengal v S Pathak (1998) 5 SCC 513

Actual existence of bias is not needed for recusal of judges. A reasonable likelihood of existence of bias affecting perception of judge being impartial is sufficient for recusal, submitted Divan relying on <b>State of Punjab v Davinder Pal Singh Bhullar (2011) 14 SCC 740.

Divan quotes Para 5 of Narinder Singh Arora v State (2012) 1 SCC 561 to state what constitutes bias

Divan quotes Para 12 of Narinder Singh Arora v State (2012) 1 SCC 561 to state likelihood is bias is a ground for recusal

https://www.livelaw.in/top-stories/shyam-divan-seeks-justice-arun-mishra-recusal-land-acquisition-sec-24--148961

The cardinal principle is justice must not only be done, but also seen to be done.

https://www.livelaw.in/top-stories/shyam-divan-seeks-justice-arun-mishra-recusal-land-acquisition-sec-24--148961

 It was submitted that besides the maxim justice delayed is justice denied there is other judicial maxim justice hurried is justice buried which applies to the facts of the present case

Learned counsel for the petitioner laid emphasis on the maxim „justice hurried is justice buried' but there is another maxim „justice delayed is justice denied." Quick and prompt trial of criminal offences is the need of the hour to repose faith of the people in judiciary. 

The right to speedy trial is implicit in Art.21 of the constitution of India. The first written articulation of the right to speedy trial appeared in 1215 in the Magna Carta: "We will sell to no man, we will not deny or defer to any man either justice or right." Article 21 of the Indian constitution declares that "no person shall be deprived of his life or personal liberty except according to the procedure laid by law." Justice V.R.Krishna Iyer in Babu Singh v. State of UP, AIR 1978 SC 527 remarked, "Our justice system even in grave cases, suffers from slow motion syndrome which is lethal to „fair trial‟ whatever the ultimate decision. Speedy justice is a component of social justice since the community, as a whole, is concerned in the criminal being condignly and finally punished within a reasonable time and the innocent being absolved from the inordinate ordeal of criminal proceedings." Shiv Kumar Yadav vs State on 4 March, 2015Delhi High Court

 The anxiety of all concerned about quick dispensation of justice has been succinctly stated by one of us (Hon'ble Justice Kirpal) in All India Judges Association & Ors. v. Union of India & Ors. (JT 2002 [3] SC 503) in the following words:

"An independent and efficient judicial system is one of the basic structures of our Constitution. If sufficient number of judges are not appointed, justice would not be available to the people, thereby undermining the basic structure. It is well known that justice delayed is justice denied. Brij Mohan Lal vs Union Of India & Ors on 6 May, 2002 scc

Sedition Charge For Writing A Letter To PM: My Dear CJM Ji, Ignorance Of Law Is No Excuse!

https://www.livelaw.in/columns/sedition-charge-for-writing-a-letter-to-pm-my-dear-cjm-ji-ignorance-of-law-is-no-excuse-148890

"Article 141 of Indian Constitution says: The law declared by the Supreme Court shall be binding on all courts. It is called precedent, which is one of the important sources of law for any democratic nation and such law would bind all the lower courts. As recently as on September 7, 2016, Supreme Court Bench of Justice Dipak Misra quoted an old judgment to reassert that 'Someone's statement criticising the government does not invoke an offence of sedition or defamation.' On May 26, ...

This judgement of Supreme Court in 1962 which was re-enforced in 2016 will bind the Chief Judicial Magistrate of Bihar, but it appears the ratio decidendi was totally ignored by him. If he is ignorant of this decision read with Article 141, he should have at least known that 'ignorantia juris non-excusat' i.e., the ignorance of law is no excuse and that law presumes that each knows the law.

Madhya Pradesh High Court

Suresh Kumar Kulshrestha vs M.P.M.K.V.V. Company Ltd. ... on 12 April, 2019

It is well established principle of law that a mistaken belief about a law is no defence to a violation of that law. All persons are presumed to know and understand the law.

Ignorantia Facti Excusat, Ignorantia Juris Non Excusat, which means ignorance of fact can be excused, but ignorance of law cannot be excused.

In Anil Rai v. State of Bihar reported in (2001) 7 SCC 318, para 3. any procedure or course of action which does not ensure a reasonable quick adjudication has been termed to be unjust. Such a course is contrary to the maxim 'actus curiae neminem gravabit' that an act of the Court shall prejudice none.

Illegal building navi Mumbai https://indiankanoon.org/doc/150638608/

In the case of State of U.P. v. Raj Narain, (1975) 4 SCC 428, Mathew, J. eloquently expressed this proposition in the following words:

"In a government of responsibility like ours, where all the agents of the public must be responsible for their conduct, there can be but few secrets. The people of this country have a right to know every public act, everything that is done in a public way, by their public functionaries. They are entitled to know the particulars of every public transaction in all its bearing. The right to know, which is derived from the concept of freedom of speech, though not absolute, is a factor which should make one wary, when secrecy is claimed for transactions which can, at any rate, have no repercussion on public security. To cover with veil of secrecy, the common routine business, is not in the interest of the public. Such secrecy can seldom be legitimately desired. It is generally desired for the purpose of parties and politics or personal self-interest or bureaucratic routine. The responsibility of officials to explain and to justify their acts is the chief safeguard against oppression and corruption."

The case of S.P. Gupta v. Union of India, 1981 SCC Supp. 87, decided by a seven-Judge Constitution Bench of this Court, is generally considered as having broken new ground and having added a fresh, liberal dimension to the need for increased disclosure in matters relating to public affairs. In that case, the consensus that emerged amongst the Judges was that in regard to the functioning of government, disclosure of information must be the ordinary rule while secrecy must be an exception, justifiable only when it is demanded by the requirement of public interest. The Court held that the disclosure of documents relating to the affairs of State involves two competing dimensions of public interest, namely, the right of the citizen to obtain disclosure of information, which competes with the right of the State to protect the information relating to its crucial affairs. It was further held that, in deciding whether or not to disclose the contents of a particular document, a Judge must balance the competing interests and make his final decision depending upon the particular facts involved in each individual case. It is important to note that it was conceded that there are certain classes of documents which are necessarily required to be protected, e.g. Cabinet Minutes, documents concerning the national safety, documents which affect diplomatic relations or relate to some State secrets of the highest importance, and the like in respect of which the Court would ordinarily uphold Government's claim of privilege. However, even these documents have to be tested against the basic guiding principle which is that wherever it is clearly contrary to the public interest for a document to be disclosed, then it is in law immune from disclosure. (Paras 73 and 74 at pp. 284-286).

 Rupa Ashok Hurra v. Ashok Hurra, (2002) 4 SCC 388 : AIR 2002 SC 1771

 By majority of 5 : 2 the appeal was allowed and all proceedings in the cases against the appellant before the High Court pursuant to the said order of the Constitution Bench dated February 16, 1984, were set aside and quashed. Mukharji, Oza and Natarajan, JJ. took the view that the earlier order of this Court dated February 16, 1984 which deprived the appellant of his constitutional rights, was contrary to the provisions of the Act of 1952 and was in violation of the principles of natural justice and in the background of the said Act was without any precedent and that the legal wrong should be corrected ex debito justitiae Ranganath Misra,J., with whom Ray,J., agreed, while concurring with the majority, observed that it was a duty of the Court to rectify the mistake by exercising inherent powers.

Nevertheless, we think that a petitioner is entitled to relief ex debito justitiae if he establishes (1) violation of principles of natural justice in that he was not a party to the lis but the judgement adversely affected his interests or, if he was a party to the lis, he was not served with notice of the proceedings and the matter proceeded as if he had notice and (2) where in the proceedings a learned Judge failed to disclose his connection with the subject-matter or the parties giving scope for an apprehension of bias and the judgment adversely affects the petitioner.

Rupa Ashok Hurra v. Ashok Hurra, (2002) 4 SCC 388 : AIR 2002 SC 1771:

The question before a Constitution Bench in this case was whether an aggrieved person is entitled to any relief against a final judgment/order of the Supreme Court, after dismissal of review petition (under Article 137 of the Constitution), either under Article 32 of the Constitution or otherwise. It was held that:

1.    A final judgment/order passed by Supreme Court cannot be assailed in an application under Article 32 of the Constitution of India by an aggrieved person whether he was a party to the case or not.

2.    The jurisdiction of Supreme Court under Article 32 of the Constitution cannot be invoked to challenge the validity of a final judgment/order passed by this Court after exhausting the remedy of review under Article 137 of the Constitution read with Order XI, Rule 1 of the Supreme Court Rules, 1966.

3.    It was pointed out above that Article 32 can be invoked only for the purpose of enforcing the fundamental rights conferred in Part III and it is a settled position in law that no judicial order passed by any superior court in judicial proceedings can be said to violate any of the fundamental rights enshrined in Part III. It may further be noted that the superior courts of justice do not also fall within the ambit of State or other authorities under Article 12 of the Constitution.

4.    Though Judges of the highest Court do their best, subject of course to the limitation of human fallibility, yet situations may arise in the rarest of the rare cases, which would require reconsideration of a final judgment to set right miscarriage of justice complained of. In such case it would not only be proper but also obligatory both legally and morally to rectify the error. Therefore, the duty to do justice in these rarest of rare cases shall have to prevail over the policy of certainty of judgment as though it is essentially in public interest that a final judgment of the final Court in the country should not be open to challenge yet there may be circumstances, as mentioned above, wherein declining to reconsider the judgment would be oppressive to judicial conscience and cause perpetuation of irremediable injustice.

5.    Therefore, it was held that the Supreme Court, to prevent abuse of its process and to cure a gross miscarriage of justice, may reconsider its judgments in exercise of its inherent power. This was allowed by way of a curative petition.

6.   It was held that except when very strong reasons exist, the Supreme Court should not entertain an application seeking reconsideration of an order of the Court which has become final on dismissal of a review petition. It is neither advisable nor possible to enumerate all the grounds on which such a petition may be entertained. Nevertheless, a petitioner is entitled to relief if he establishes (1) violation of principles of natural justice in that he was not a party to the lis but the judgment adversely affected his interests or, if he was a party to the lis, he was not served with notice of the proceedings and the matter proceeded as if he had notice and (2) where in the proceedings a learned Judge failed to disclose his connection with the subject-matter or the parties giving scope for an apprehension of bias and the judgment adversely affects the petitioner.

7.    Detailed procedure for filing of curative petition was laid down in this case, inter alia, including, that the curative petition shall contain a certification by a Senior Advocate with regard to the fulfilment of the requirements for filing the curative petition.

People'S Union For Democratic ... vs Union Of India & Others on 18 September, 1982

Equivalent citations: 1982 AIR 1473, 1983 SCR (1) 456

Public interest litigation is brought before the court not for the purpose of enforcing the right of one individual against another as happens in the case of ordinary litigation, but it is intended to promote and vindicate public interest which demands that violations of constitutional or legal rights of large numbers of people who are poor, ignorant or in a socially or economically disadvantaged position should not go unnoticed and unredressed. That would be destructive of the Rule of Law which forms one of the essential elements of public interest in any democratic form of government. The Rule of Law does not mean that the protection of the law must be available only to a fortunate few or that the law should be allowed to be prostituted by the vested interests for protecting and upholding the status quo under the guise of enforcement of their civil and political rights. The poor too have civil and political rights and the Rule of Law is meant for them also, though today it exists only on paper and not in reality. People'S Union For Democratic ... vs Union Of India & Others ,1982 AIR 1473, 1983 SCR (1) 456

In State of Uttranchal v. Balwant Singh Chaufal & Ors., (2010) 3 SCC 402, in paragraphs 36, 96 and 103, it has been held thus:

"36. Public interest litigation is not in the nature of adversarial litigation but it is a challenge and an opportunity to the government and its officers to make basic human rights meaningful to the deprived and vulnerable sections of the community and to assure them social and economic justice which is the signature tune of our Constitution. The Government and its officers must welcome public interest litigation because it would provide them an occasion to examine whether the poor and the downtrodden are getting their social and economic entitlements or whether they are continuing to remain victims of deception and exploitation at the hands of strong and powerful sections of the community and whether social and economic justice has become a meaningful reality for them or it has remained merely a teasing illusion and a promise of unreality, so that in case the complaint in the public interest litigation is found to be true, they can in discharge of their constitutional obligation root out exploitation and injustice and ensure to the weaker sections their rights and entitlements.

Public  interest   litigation  which   is

strategic arm  of  the  legal  aid  movement  and  which  is

intended to  bring justice  within the     reach  of  the    poor

masses, who  constitute the low visibility area of humanity,

is a  totally different kind of litigation from the ordinary

traditional litigation  which is essentially of an adversary

character where    there is  a dispute  between two litigating

parties, one  making claim  or seeking     relief against      the

other and  that other  opposing such claim or resisting such

relief. Public    interest litigation  is brought       before      the

court not  for the  purpose of enforcing the  right of   one

individual  against  another  as  happens  in  the  case  of

ordinary litigation,  but it  is  intended  to   promote      and

indicate public    interest which    demands that  violations of

constitutional or legal rights of large number of people who

are  poor,   ignorant  or  in  a  socially  or   economically

disadvantaged  position   should  not     go   unnoticed     and

unredressed. That  would be  destructive of  the Rule of Law

which forms one of the essential elements of public interest

in any democratic form of Government. [467 C-F]

     1:2. The  Rule of Law does not mean that the protection

of the law must be available only to a fortunate few or that

the law      should be  allowed to  be prostituted by the vested

interests for  protecting and upholding the status quo under

the guise  of  enforcement  of their  civil  and  political

rights. The poor too have civil and political rights and the

Rule of      law is      meant for them also, though today it exists

only on      paper and  not in  reality. If the sugar barons and

the alcohol  kings have  the Fundamental  rights to carry on

their business    and to fatten their purses by exploiting the

consuming public, certainly the "chamaras" to belonging

458

to the      lowest strata  of society  have Fundamental Right to

earn on      honest living    through their  sweat and toil. Large

numbers of  men, women  and children who constitute the bulk

of an  population are  today living a sub human existence in

conditions of  object poverty; utter grinding    poverty      bas

broken their back and sapped their moral fibre. They have no

faith in  the existing  social and  economic system. Nor can

these poor  and deprived  sections  of     humanity  afford  to

enforce their civil and political rights.

Supreme Court of India

Sanjeev Kumar Jain vs Raghubir Saran Charitable Trust & ... on 12 October, 2011

 The provisions relating to costs should not however obstruct access to courts and justice. Under no circumstances the costs should be a deterrent, to a citizen with a genuine or bonafide claim, or to any person belonging to the weaker sections whose rights have been affected, from approaching the courts.

This Hon’ble Court in Nilabati Behera [Supra], at para 21 has observed that

“…Article 9(5) of the International Covenant on Civil and Political Rights, 1966 which indicates that an enforceable right to compensation is not alien to the concept of enforcement of a guaranteed right. Article 9(5) reads as under: “Anyone who has been the victim of unlawful arrest or detention shall have an enforceable right to compensation”. 

Court in Nilabati Behera Vs. State of Orissa & Ors., (1993) 2 SCC 746 at para 20 has held that

“…the court is not helpless and the wide powers given to this Court by Article 32, which itself is a fundamental right, imposes a constitutional obligation on this Court to forge such new tools, which may be necessary for doing complete justice and enforcing the fundamental rights guaranteed in the Constitution, which enable the award of monetary compensation in appropriate cases, where that is the only mode of redress available”.

Industrial Development Cannot Be Done On The Graves Of Human Being And At Cost Of Air And Water Quality : NGT  https://www.livelaw.in/environment/industrial-development-cannot-be-done-149602

In Bandhua Mukti Morcha v. Union of India & Ors., (1984) 3 SCC 161, the Apex Court expressed thus:

"9. .....When the Court entertains public interest litigation, it does not do so in a cavilling spirit or in a confrontational mood or with a view to tilting at executive authority or seeking to usurp it, but its attempt is only to ensure observance of social and economic rescue programmes, legislative as well as executive, framed for the benefit of the have- nots and the handicapped and to protect them against violation of their basic human rights, which is also the constitutional obligation of the executive. The Court is thus merely assisting in the realisation of the constitutional objectives."

Thereafter, their Lordships proceeded to hold as follows:

"55. .....In public interest litigation, the role held by the Court is more assertive than in traditional actions.

PARLIAMENT COULD NOT RESTRICT FUNDAMENTAL RIGHTS

 In Golaknath vs. State of Punjab [(1967) 2 SCR 762 

fundamental rights cannot be waived of. To substantiate his plea, reliance is placed on following catena of decisions:

1. R. Jambukeswaran and Ors. v. Union of India and Ors., 2004(2) ATJ FB CAT 1;

2. Mani Kant Gupta and Ors. v. State of Uttar Pradesh, 2004(1) ATJ 349, and

3. Union of Indian and Ors. v. Wing Commander T. Parthasarathy, 2001(1) SCC 158.

 In Basheshar Nath v. C.I.T., it was held by the Supreme Court that the fundamental right cannot be waived.

 In Olga Tellis v. Bombay Municipal Corporation, it was held by the Supreme Court that although an undertaking was given by the appellants before the High Court on behalf of the hut and pavement dwellers that they did not claim any fundamental right to put huts on pavements or public roads and that they will not obstruct the demolition of the huts after a certain date, they could not be estopped from contending before the Supreme Court that the huts constructed by them on the pavements cannot be demolished because of their right to livelihood under Article 21 of the Constitution. From this decision also it follows that a fundamental right cannot be waived, and there can be no estoppel.

It was held in case titled Yare Tali v. Tapak Tali (2002) 3 GLR 376 that the approach of the Court should be liberal and pragmatic so that no injustice is caused to the litigant who has approached the Court with all the expectations of getting justice.

G.P. Srivastava v. R.K. Raizada AIR 2000 SC 1221 has laid down that a party cannot be penalized for his/her previous negligence which has been overlooked or condoned earlier.

A.R. Vadodriya v. Municipal Corporation of Greater Bombay AIR 2004 Bom. 8 wherein it is laid down that failure of the clerk of the Advocate to note the correct date of hearing in his diary had been held as sufficient cause for restoration of the suit.

Tis hazari curt ak kuhar J Addl Distt Judge  14 May 2012 vijay kumar vs pratap singh  CS 186/2009

https://indiankanoon.org/doc/94439021/ Frivilous PIL Cost Guidelines

Para 16……..The attempt of the Courts must always be to minimize litigation and not multiply it. An established maxim boni judicis est lites dirimere, ne lis ex lite oritur; et interest reipublicae ut sit finis litium casts a duty upon the Court to bring litigation to an end and to ensure that no further litigation arises from its decisions. Judicial resources are valuable and scarce. The resources of the Court are not infinite especially in terms of judicial time. Therefore, administration of justice, in interest of equity and fair play, demands that a view which discourages rather than encourages litigation be taken. Delhi High Court,Sh. Prem Prakash Chaudhary & Ors. vs Sh. Rajinder Mohan Rana & Ors on 8 February, 2011

The Government orders are in violation of principles of natural justice and opposed to equity, justice and fair play.

Supreme Court of India

Shangrila Food Products Ltd. & Anr vs Life Insurance Corporation Of ... on 9 July, 1996

Equivalent citations: 1996 SCC (5) 54, JT 1996 (6) 522

It is well-settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognisance of the entire facts and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice. This jurisdiction of the High Court, being extraordinary, is normally exercisable keeping in mind the principles of equity. One of the ends of the equity is to promote honesty and fair play. If there be any unfair advantage gained by a party priorty, before invoking the jurisdiction of the High Court, the court can take into account the unfair advantage gained and can require the party to shed the unfair gain before granting relief.

While for ordinary citizen , getting donation s may be taxable , but not illegal , for an NGO or specified persons it may be illegal and punishable.

STAY ORDER GUIDELINES

These three aspects are to be considered while granting injunction also. In Kashi Math Samsthan & Anr vs Srimad Sudhindra Thirtha Swamy & ... on 2 December, 2009, it was observed thus: In an order of injunction, the party who seeks for grant of such injunction has to prove that he has made out a prima facie case to go for trial, the balance of convenience is also in his favour and he will suffer irreparable loss and injury if injunction is not granted. But it is equally well settled that when a party fails to prove prima facie case to go for trial, question of considering the balance of convenience or irreparable loss and injury to the party concerned would not be material at all, that is to say, if that party fails to prove prima facie case to go for trial, it is not open to the Court to grant injunction in his favour even if, he has made out a case of balance of convenience being in his favour and would suffer irreparable loss and injury if no injunction order is granted.

 case of Kashi Math Samsthan & anr. Vs. Srimad Sudhindra Thirtha Swamy & Appeal from Order No.4/2014 anr., reported in 2010 AIR (SC) 296 to submit that if the parties fail to prove prima facie case to go for trial, it is not open to the Court to grant injunction in favour of such party even if balance of convenience or irreparable loss or injury is shown

MISCONDUCT   CITATIONS

The Supreme Court in (9) State of Punjab and Ors. v. Ram Sing Ex. Constable, upon which Mr. Mukherjee himself has placed reliance upon held:-

- 11 -

"5. Misconduct has been defined in Black's Law Dictionary, Sixth Edition at Page 999 thus:

"A Transgression of some established and definite rule of action, a forbidden act, a dereliction from duty, unlawful behaviour, wilful in character, improper or wrong behaviour, it synonyms are misdemeanor, misdeed, misbehaviour, delinquency, impropriety, mismanagement, offense, but not negligence or carelessness.

Misconduct in offence has been defined as:

"Any unlawful behaviour by a public officer in relation to the duties of his office, wilful in character. Term embraces acts which the office holder had no right to perform, acts performed improperly and failure to act in the face of an affirmative duty to act."

-------------------------

P. Ramanath Aiyar's Law Lexicon, Reprint Edition 1987 at Page 821 defines 'misconduct' thus:

"The term misconduct implies a wrongful intention, and not a mere error of judgment, Misconduct is not necessarily the same thing as conduct involving moral turpitude. The word misconduct is a relative term, and has to be construed with reference to the subject- matter and the context wherein the term occurs, having regard to the scope of the Act or statute which is being construed. Misconduct literally means wrong conduct or improper conduct. In usual parlance, misconduct means a transgression of some established and definite rule of action, where no discretion is left, except what necessity may demand and carelessness, negligence and unskilfulness are transgressions of some established, but indefinite, rule of action, where some discretion is necessarily left to the actor. Misconduct is a violation of definite law; carelessness or abuse of discretion under an indefinite law. Misconduct is a forbidden

- 12 -

act; carelessness, a forbidden quality of an act and is necessarily indefinite. Misconduct in office may be defined as unlawful behaviour or neglect by a public official by which the rights of a party have been affected."

-----------------------------------

This aspect of the matter has recently been considered by the Apex Court in Baldev Singh Gandhi vs. State of Punjab & Ors., AIR 2002 SC 1124 in the following terms :

"9. 'Misconduct' has not been defined in the Act. The word 'misconduct' is antithesis of the word 'conduct'. Thus, ordinarily the expression 'misconduct' means wrong or improper conduct, unlawful behavior, misfeasance, wrong conduct, misdemeanour etc. There being different meaning of the expression 'misconduct', we, therefore, have to construe the expression 'misconduct' with reference to the subject and the context wherein the said expression occurs. Regard being had to the aims and objects of the statute......".

 In Probodh Kumar Bhowmick vs. University of Calcutta & Ors., 1994 (2) Cal. LJ 456, it was observed:

14. `Misconduct', inter alia, envisages breach of discipline, although it would not be possible to lay down exhaustively as to what would constitute conduct and indiscipline, which, however, is wide enough to include wrongful omission or commission whether done or omitted to be done intentionally or unintentionally. It means, "improper behaviour; intentional wrong doing on deliberate violation of a rule of standard or behaviour":

"Misconduct is a transgression of some established and definite rule of action, where no discretion is left except what necessity may demand; it is a violation of definite law, a forbidden act. It differs from carelessness. Misconduct even if it is an offence under the Indian Penal Code is equally a misconduct."

 In (5) Mahendra Singh Dhantwal v.

Hindustan Motors Ltd. reported in (1976) II LLJ 259 (264) SC, a three Judge Bench of the Supreme Court observed "standing orders of a company only describe certain cases of misconduct and the same cannot be exhaustive of all the species of misconduct which a workman may commit. Even though a given conduct may not come within the specific terms of misconduct described in the standing order, it may still be a misconduct in the special facts of a case, which it may not be possible to condone and for which the employer may take appropriate action".

Even in the absence of rules specifying misconduct, it would be open to the employee to consider reasonably what conduct can be properly treated as misconduct.

See (6) W.M. Agnani v. Badri Das reported in (1963) 1 LLJ page 684 at 690.

In (7) Delhi Cloth and General Mills Co Ltd. v. Its Workmen reported in (1969) 2 LLJ 755 at 772 at Shah, J. states "misconduct spreads over a wide and hazy spectrum of industrial activity; the most seriously subversive conducts rendering an employee wholly unfit for employment to mere technical default covered thereby".

----------------

Thus it could be seen that the word 'misconduct' though not capable of precise definition, on reflection receives its connotation from the context, the delinquency in its performance and its effect on the discipline and the nature of the duty. It may involve moral turpitude, it must be improper or wrong behavior; unlawful behavior, willful in character; forbidden act, a transgression of established and definite rule of action or code of conduct but not mere error of judgment, carelessness or negligence in performance of the duty; the act complained of bears forbidden quality or character."

https://indiankanoon.org/doc/755525/ 

https://indiankanoon.org/doc/39469945/

In a clear and loud message to all the lawyers, the Supreme Court of India in a latest, landmark and laudable judgment titled Lal Bahadur Gautam v. State of U.P. and others in Civil Appeal No(s). 4794 of 2019 (arising out of SLP (Civil) No(s). 9527 of 2019) has sought to send an unmistakable and stern message to them in unequivocal terms that everyone has to be responsible and careful in what they present to the Court while firmly and fully reiterating that a lawyer demeans himself if he acts merely as a mouthpiece of his client.

IN THE HIGH COURT AT CALCUTTA CIVIL APPELLATE JURISDICTION APPELLATE SIDE The Hon’ble JUSTICE BIBEK CHAUDHURI S.A 8 of 2016 With CAN 9460 of 2019 Sri Biswanath Pal Vs. Sri Sankar Nath Pal & Ors.

'I am not unmindful to note that the Hon'ble Supreme Court in number of cases deprecated that trend of the higher judiciary of making criticism or adverse remark against a judicial officer in a judiciary pronouncement. However, the Hon'ble Supreme Court observed that unworthy conduct of subordinate judicial officer cannot be overlooked. Power of superior court to express its opinion and make even critical observations regarding the conduct of judicial function by a judicial officer is undeniable, but the power is to be exercised only when necessary for the purpose of reaching a decision on the main controversy before it.'The following decisions of the Hon’ble Supreme Court may be relied on in support of my observation:- (i) ‘K’ A Judicial Officer, in RE : (2001) 3 SCC 54. (ii) A.M. Mathur vs. Pramod Kumar Gupta : (1990) 2 SCC 533 (iii) Niranjan Patnaik vs Sashibhusan Kar & Anr : (1986) 2 SCC 569 (iv) Mona Panwar vs. High Court of Judicature of Allahabad : (2011) 3 SCC 496.

SC:Without poof of demand of bribe, no corruption case made out - Prevention of Corruption Act - Ss. 7, 13(2) r/w 13(1)(d) - Illegal gratification.

Held, what constitutes illegal gratification is question of law while whether on evidence that crime is committed is question of fact - Where evidence regarding demand and acceptance of bribe leaves room for doubt and does not displace wholly presumption of innocence, charge cannot be said to have been established - On facts held, since proof of demand which is an indispensable essentiality was absent, High Court was justified in quashing charges framed thereunder (Paras 28 and 29)

Case:State Vs. Anup Kumar Srivastava

Citation:

(2017) 15 SCC 560; (2018) 1 SCC (Cri) 816; AIR 2017 SC 3698

In non-cognizable offence judicial process initiates by lodging a criminal complaint with the metropolitan magistrate, who then orders the concerned police station to investigate the crime accordingly, after which a charge sheet is filed with the court, which is followed by the trial. After the trial, the court will pass orders regarding the issue of a warrant to arrest the accused.

Also file a private complaint i.e. application in Judicial Magistrate First Class’s court under S. 499 and S.500 of Indian Penal Code for defamation against that woman. Once your case will be proved in court of Law as you are innocent then she will be punished. You can simultaneously file a civil suit under Law of tort for damages.

After Filing charge sheet by the police – If the charge sheet has been filed on the basis of frivolous FIR, and the case is committed to session judge and before commencement of trial, the accused can file a discharge Application u/s 227 of CrPC, in order to get discharged from the offence charged with on the basis of false FIR against him on the following grounds–

That the charge sheet contains no prima facie evidence against the accused in respect of the offence with which he is charged.

The trial cannot be commenced against the accused because of insufficiency of evidence on record.

The evidence on record is inadmissible as evidence under the Indian Evidence Act.

(iii) After the Commencement of trial – If the discharge Application u/s 227 of CrPC filed by the accused has been rejected by Session court, and the charge is framed and the trial is commenced then Application under Section 232 of CrPC can only be made for the Acquittal of the Accused.

Jacob Mathew vs. State of Punjab & Anr. (2005) 6 SCC 1 , observed that to prosecute the medical professionals for negligence under criminal law, something more than mere negligence had to be proved. It said: 'In Jacob Mathew's Case this Court clearly held that in criminal law medical professionals are placed on a pedestal different from ordinary mortals. It was further held that to prosecute the medical professionals for negligence under criminal law, something more than mere negligence had to be proved. Medical professionals deal with patients and they are expected to take the best decisions in the circumstances of the case. Sometimes, the decision may not be correct, and that would not mean that the medical professional is guilty of criminal negligence. Such a medical profession may be liable to pay damages but unless negligence of a high order is shown the medical professionals should not be dragged into criminal proceedings. That is why in Jacob Mathew's case (supra)this Court held that in case of criminal negligence against a medical professional it must be shown that the accused did something or failed to do something in the given facts and circumstances of the case which no medical professional in his ordinary senses and prudence would have done or failed to do.'

The Supreme Court acts as the Custodian of Constitution of India because the Constitution itself has empowered the Judiciary to review the laws enacted by the Parliament. Article 14 of the Constitution states that if the law enacted by the legislature is ultra vires to the Constitutional provisions, the Supreme Court gets the power to review and repeal it.

Custodian means a person entrusted with the custody or care of something.

Whenever the Fundamental Rights are denied or restricted, it can be challenged in the Supreme Court under Article 32;

The dispute between Centre and State, can be settled in the Supreme Court under Article 131;

Law declared by the Supreme Court shall be binding on all the courts in India under Article 141;

For the enforcement of decrees - Article 142;

President of India consulting Supreme Court under Article 143;

Supreme Court judgments are the law of the land ;

Whenever a doubt arises regarding the Constitution, the Supreme Court will interpret under Article 147 ;

Based on the above facts, the Supreme Court takes care of the Constitution.

So, simply the Supreme Court is the Custodian of the Constitution.

CONTEMPT OF COURT

 In support of his contentions, the learned SPP has relied upon the following judgments of the Hon'ble Supreme Court:

1. (2017)3 SCC 362 - State of Karnataka Vs. State of Tamil Nadu and others.

2. AIR 1998 SC 3299 - Ajay Kumar Pandey Vs. Veerendra Saran Hence, he seeks to allow the contempt petition and to punish the accused as prayed for in the petition.

AJAY KUMAR PANDEY VS. VEERENDRA SARAN reported in AIR 1998 SC 3299. Paragraph Nos.18 and 22 of the said judgment are relevant for our purpose. In the said paragraphs, Their Lordships have held as under:

"18. The rule of law is the foundation of a democratic society. The judiciary is the guardian of the rule of law and if the judiciary is to perform its duties and functions effectively and remain true to the spirit with which they are sacredly entrusted, the dignity and authority of the courts has to be respected and protected at all costs. It is for this reason that the courts are entrusted with the extraordinary power of punishing those for contempt of Court who indulge in acts whether inside or outside the courts, which tend to undermine the authority of the Courts and bring them in disrepute and disrespect thereby obstructing them from discharging their judicial duties without fear or favour. This power is exercised by the courts not to vindicate the dignity and honour of any individual Judge who is personally attacked or scandalised but with a view to uphold the majesty of law and the administration of justice. The foundation of the judiciary is the trust and the confidence of the people in its ability to deliver fearless and impartial justice and as such no action can be permitted which may shake the very foundation itself".https://indiankanoon.org/doc/115155302/

The contemner, for reasons which can only be attributed to his misconception of his role and over-zealousness to assert himself and his side of the matter intentionally overstepped his limits and conveniently ignored die above legal position, and abrogated to himself, in substance, the role of a judge in his own cause. He has thus in effect not only challenged the jurisdiction of the Court to discharge its functions but also its authority to do so.

Lower court can not issue contempt notice

https://timesofindia.indiatimes.com/city/delhi/Lower-courts-cant-issue-contempt-notice-HC/articleshow/6263401.cms

Delhi High Court

Syed Nusrat Ali vs State & Anr. on 5 August, 2010https://indiankanoon.org/doc/137686299/

https://www.casemine.com/judgement/in/5608fbfde4b014971114b1a6

https://www.casemine.com/judgement/in/5609aef2e4b014971141540c

https://timesofindia.indiatimes.com/city/pune/contempt-plea-court-tells-agency-to-file-say/articleshow/65554971.cms

Chief Justice S.A. Bobde, while hearing the maintainability of the Sabarimala reference before a 9-judge bench, stated that the court has not “prejudicially affected anyone’s rights” while making the reference. https://www.legalsarcasm.com/legal-national/court-has-not-prejudicially-affected-anyones-rights-by-making-the-reference-cji-bobde/

SC:Private complaint - Unexplained delay of a long period of more than one year in filing - Ss. 190(1)(a) Cr.P.C.

Such delay rightly held by High Court to be a vulnerable circumstances (Para 23).

Case:

 Shakila Abdul Gafar Khan Vs. Vasant Raghunath Dhoble.

Citation:

(2003) 7 SCC 749: 2003 SCC (Cri) 1918: AIR 2003 SC 4567.

SC:Cognizance of offence of illegal mining quashed - lack of complaint by competent authority, but court can proceed with trial for offence of theft of sand under S. 379 of IPC.

Offence of illegal mining - Cognizance of - On complaint of State police - Validity - As per S.22 No court can take cognizance of offence under Mines and Minerals Act of 1957, except on complaint in writing by person authorized by Central or State Govt.- State police was not authorized to make complaint – Cognizance of offence, illegal.

However court can take cognizance of offence for theft of sand under section 379 of IPC, and the other offences under special statute are quashed.

Case:

Kanwar Pal Singh Vs. State of Uttar Pradesh.

Citation:

2020 ALL SCR (Cri) 201

[ B ]:- Section 204 CRPC Cognizance of offence - Impugned order of cognizance and summoning of accused, passed on a printed proforma by filling gaps after filling blanks by Court employee and putting of signature by Magistrate-Impugned order is wrong and illegal and without due application of judicial mindhence set aside (Paras 5 & 6)

Raj Kumar v/s State of UP CRL-R 2816/10 [ HARSH KUMAR JJ ]

[ ALLAHABAD HIGH COURT ]

SC:Court’s jurisdiction to take cognizance - Foundation of - Cr.P.C. Section 190.

Though police report is material on which cognizance is taken, held (per curiam), from that it cannot be said that a valid and legal police report is the foundation of the court’s jurisdiction to take cognizance.

Case:

 M.C Mehta (Taj Corridor Scam) Vs. Union of India.

Citation:

2007 1 110 (SC).

SC:Methods of taking cognizance of offence - Ss. 190 and 193 Cr.P.C.

The Code of Criminal Procedure has prescribed four known methods of taking cognizance of offence by the court competent to try the same. The court has to take cognizance of the offence before initiation  of the proceeding can be contemplated. The court called upon to take cognizance of the offence must apply its mind to the facts placed before it either upon a police report or upon a complaint or in some other manner the court came to know about it and in the case of Court of Session upon commitment of the case by the Magistrate.

Case:

 A. R. Antulay Vs. Ramdas Sriniwas Nayak.

Citation:

(1984) 2 SCC 500: 1984 SCC (Cri) 277: AIR 1984 SC 718: 1984 Cri LJ 647: 1984 Boom LR 228.

SC:What is meaning of "taking Cognizance", how is it taken.

Held, term though not statutorily defined, yet judicial pronouncements give it a definite meaning and connotation - Cognizance broadly means taking judicial notice by competent court of a causes or matter presented before it so as to decide whether there is basis for initiating proceedings for judicial determination - Words and phrases - "Cognizance" (para 34).

Case:

 Subramanian Swamy Vs. Manmohan Singh.

Citation:

(2012) 3 SCC 64: (2012) 2 SCC (L&S) 666: (2012) 1 SCC (Cri) 1041: AIR 2012 SC 1185: 2012 Cri LJ 1519: (2012) 4 ALD 109.

https://hindi.livelaw.in/know-the-law/know-about-protest-petition-152714

SC:Aim of contempt proceedings is “to deter men from offering any indignities to a Court of Justice”.

Contempt of Courts Act, 1971 - The aim of the contempt proceeding is “to deter men from offering any indignities to a Court of Justice” and an essential feature of the proceeding is the exercise of summary power by the Court itself in regard to the delinquent.

Case:

Bathina Ramakrishna Reddy Vs. State of Madras

Citation:

AIR 1952 SC 149, 151 : 1952 SCR 425: 1952 Cri LJ 832

SC:Magistrate has no power to direct further investigations, suo moto or at request of Complainant, after cognizance is taken by the Court or accused is discharged - particularly in absence of a request made by the Investigation Officer.

Ss. 173(8), 156(3) and 202 - Relative scope of role and powers of Magistrate under, explained - Power of Magistrate to direct further investigation after cognizance has been taken/process issued or accused has been discharged - Scope and limitations - Need for request for further investigation by investigating agency before further investigation can be directed under S. 173(8) - Absence of power of Magistrate to direct further investigation either suo motu or on prayer made by complainant/informant, once cognizance has been taken/process issued or accused has been discharged.

Case:

Amruthbai Shambhubhai Patel Vs. Sumanbhai Kantibhai Patel

Citation:

(2017) 4 SCC 177 : (2017) 2 SCC (Cri) 331 : AIR 2017 SC 774.

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 168 OF 2020 Govind Prasad Kejriwal      .. Appellant(s) Versus State of Bihar & Anr.        .. Respondent(s)  Magistrate While Holding Inquiry U/s 202 CrPC Required To Take A Broad View And a Prima Facie Case: SC

Unequivocal(Clear) Statements Made By Counsel Will Be Binding On Clients: SC [Read Judgment]

SC:Statements recorded by police under S. 161 of Cr.P.C. do not constitute substantial evidence on it's own.

S. 161 - Statement recorded under S. 161 CrPC - Held, does not constitute evidence that can be relied upon by court to convict an accused in absence of substantive evidence - Absence of substantive inculpating evidence - Conviction reversed.

Case:

Virendra Singh Vs. State of Haryana

Citation:

(2017) 11 SCC 126 : (2017) 3 SCC (Cri) 878 : AIR 2017 SC 1228.

SC:Wherever investigation is stayed by HC, such cases should be disposed of in 6 months preferably.

The authority of the High Court to order stay of investigation pursuant to lodging of FIR, or trial in deserving cases is unquestionable. But the exercise of this authority carries with it the responsibility to expeditiously dispose of the power given to the High Courts and the same power is to be exercised sparingly only to prevent an abuse of the process and to promote the ends of justice. It is therefore clear that (i) such an extraordinary power has to be exercised with due caution and circumspection, (ii) once such a power is exercised, the High Court should not lose sight of the case where it has exercised its extraordinary power of staying investigation and trial, and (iii) the High Court should make it a point of finally disposing of such proceedings as early as possible but preferably within six months from the date the stay order is issued. (Para 55) Case:Imtiyaz Ahmad Vs. State of Uttar Pradesh and others.

Citation:

(2012) 2 Supreme Court Cases 688.

SC:HC should not compare disputed signatures with originals by invoking S.73 of the Evidence Act, without the assistance of handwriting experts.

Wherein in an Election Petition, the High Court on appreciation of oral evidence found that witnesses examined on the side of the election petitioner have either admitted that they have voted two times or they must be deemed to have voted two times in view of similarity of signatures on two counter foils alleged to be related to those witnesses, and proceeded to compare the signatures found in the counterfoils to find out whether both the signatures were to be by the same person, without the aid of an expert or the evidence of persons conversant with the disputed signatures, the approach made by the High Court was not in conformity with the spirit of section 73 of the Evidence Act.

Case:

State of Delhi (Delhi Administration) Vs. Pali Ram

Citation:

AIR 1979 SC 14

SC:Registration of FIR is mandatory if information given to police discloses commission of cognizable offence - At that stage other considerations such as genuineness or credibility of information not relevant - S. 154 Cr.P.C.

Registration of FIR is mandatory if the information given to the police under Section 154 of the Code discloses the commission of a cognizable offence. However, if no cognizable offence is bmade out in the information given, then the FIR need not be registered immediately and perhaps the police can conduct a sort of preliminary verification or inquiry for the limited purpose of ascertaining as to whether a cognizable offence has been committed. But, if the information given clearly mentions the commission of a cognizable offence, there is no other option but to register an FIR forthwith. Other considerations are not not relevant at the stage of registration is falsely given, whether the information is genuine, whether the information is credible, etc. At the stage of registration of FIR, what is to be seen is merely whether the information given ex facie discloses the commission of a cognizable offence. (Paras 6 and 8).

Case:

State of Telangana Vs. Habib Abdullah Jeelani

Citation:

(2017) 2 SCC 779 : (2017) 2 SCC (Cri) 142 : AIR 2017 SC 373.

SC:Courts have unrestricted power to add or alter any charge before pronouncement of judgment.

S. 216 - Alteration of charge - Power of Courts - Held, there is unrestricted power to add or alter any charge whenever court finds that defective charge has been made or addition of new charge becomes necessary after commencement of trial - But such addition or alteration has to be made before pronouncement of Judgment (Para 11).

Case:

Jasvinder Saini Vs. State (Govt. of NCT of Delhi).

Citation:

(2013) 7 SCC 256: (2013) 3 SCC (Cri) 295: (2013) 202 DLT 61: (2013) 128 AIC 183.

SC:Mere examination of complainant upon oath does not mean that the Magistrate has taken cognizance of offence.

Taking of cognizance means application of mind to contents of complaint and take judicial notice of offence. Mere examination of complainant upon oath does not mean that the Magistrate has taken cognizance of offence.

Case:

 SR Sukumar VS. S Sunaad Raghuram

Citation:

AIR 2015 SC 2757

SC: S. 154 Cr.P.C.- First information report need not necessarily contain details as to each and every particular injury sustained by deceased.

FIR - S. 154 Cr.P.C. - It needs to contain only some information about the crime and some information about the manner in  which the offence has been committeed - It is not required to contain minute details of whole crime be(Para 9).

Case:Sunil Khergade Vs. State of Maharashtra

Citation:(2016) 15 SCC 773 : (2016) 4 SCC (Cri) 785 : (2015) 153 AIC 58 : AIR 2015 SC Supp Supp 2251.

SC:Taking cognizance without application of mind - proceeding is liable to be set aside.

Where the court took cognizance and issued process but there is no indication of application of mind to allegation in complaint, the order by Magistrate calling appellant/accused to defend criminal proceedings is liable to be set aside.

Case:

 S Satyanaryana VS. Energo Masch Power Engg & Const PL

Citation:AIR  2015 SC 2166

SC:Uncalled remarks against Advocate expunged.

Advocates – Adverse remarks – Expunging of Certain adverse remarks passed by High Court against advocate - Found to be uncalled for and unnecessary - Hence, liable to be expunged from record.

Case:

Balaji Associates Vs. State of Maharashtra. https://indiankanoon.org/doc/171632672/

Supreme Court of India

Balaji Associates Through Its ... vs The State Of Maharashtra on 27 August, 2019

 Citation:

2020(1) ALL MR 410 (S.C.)

Investigating Officer sentenced to 6 weeks  imprisonment for not following Section 41-A of CrPc  haven't issued Notice to the Accused before Arrested

SC:Dismissal of writ petition in liminie withouta speaking order will not act as res Judicata.

Civil Procedure Code, 1908 - Section 10 - Dismissal of writ petition in limine or laches or availability of alternative remedy would not operate as res judicata.

Held: Where a writ petition after contest is disposed of on merits by a speaking order, the question decided in that petition would operate as res judicata, but not dismissal in limine or dismissal on the ground of laches or availability of alternative remedy.

Case: Pujari Bai VS. Madan Gopal

Citation:AIR 1989 SC 1764

BomHC: Defamation if not made out in one communication, can't be made out in another based on same allegations, process issued by Magistrate is quashed

Defamation - Indian Penal Code (1860),  Ss. 499, 500, 109, 34 - CRPC (1973), Ss. 200, 202 - Companies Act (2013), Ss. 169, 213 - Defamation - Issuance of process - Petition against - Removal of respondent - independent Director by Company for loss of confidence - Issuance of statutory special notice giving backdrop of material as to acts of respondent, necessitating initiation of action of his removal - Imputations in said statutory notice cannot be termed as “per se defamatory” - Moreover, it had ultimately resulted in removal of respondent from company by requisite majority - Further, no mens rea can be attributed to Petitioners, Directors Officers of Company - Petitioners cannot be said to have an intention to cause harm to reputation of respondent - Petitioners cannot be held vicariously liable and no malice can be attributed to them, since power u/s 169 of Companies Act, 2013 has been exercised by Company, a corporate entity - Therefore, issuance of process to Petitioners and holding that imputations contained in special notice was per se defamatory, illegal - Moreso when no offence of defamation made out since imputations have not been contained in special notice for first time but also in representation offered by respondent by availing statutory remedy and addressing independent letter to shareholders.

Case:

Ratan N. Tata Vs. State of Maharashtra.

Citation:(2020) ALL MR (Cri) 409

SC: S. 190 Cr.PC - Allegation that accused persons transferred shares on the basis of forged and fabricated signatures - Criminalcourts can also proceed simultaneously.

Mere filing of a claim before the Consumer Forum would not make the dispute a civil dispute - Penal Code, 1860 - Ss. 406, 420, 467, 468 and 120-B. Criminal case could still be prosecuted.

Case:Ashok Chaturvedi Vs. Shitul H. Chanchani

Citation:

(1998) 7 SCC 698 : AIR 1998 SC 2796.

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SC:Custody Girl child of 12 years handed to father as girl preferred so, mother gets visitation rights

Custody of Child

Guardians and Wards Act (1890), Sec 7 - Custody of minor daughter - Grant of, to father - Validity - Girl who is over 12 years of age is certainly capable of forming an intelligent preference regarding her custody - Girl expressed her definite desire to reside with her father - She stated that she received love and affection from her father, who was taking care of her food, education and would assist her in her school projects and activities - Counselors also in their report stated that girl is comfortable with her father - Grant of custody rights to father and visitation rights to mother, proper.

Case:DSG Vs. AKG.

Citation:(2020) ALL SCR (Cri) 218

SC: Not mentioning names of accused in FIR.

Criminal Procedure Code, 1973 - Section 154 - Not mentioning names of accused in FIR - No ground to doubt contents of FIR - Prosecution case cannot be thrown out on this ground.

Case:

Latesh @ Dadu Baburao Karlekar Vs. The State of Maharashtra

Citation:2018 (1) Supreme 524 : (2018) 186 AIC 227 : (2018) 1 AICLR 856 : (2018) AIR (SCW) 659 : (2018) 2 AIRBomR (Cri) 13 : (2018) AIR (SC) 659 : (2018) 1 AllCrlRulings 843 : (2018) AllSCR (Crl) 311 : (2018) 1 AndhLD (Criminal) 542 : (2018) 1 BomCR (Cri) 594 : (2018) 1 CalCriLR 206 : (2018) 2 CriCC 505 : (2018) CriLJ 1812 : (2018) CriLR 173 : (2018) 1 Crimes 95 : (2018) Supl CutLT (Criminal) 504 : (2018) 2 ECrC 24 : (2018) 1 JBCJ 412 : (2018) 2 JCC 762 : (2018) 1 JLJR 321 : (2018) 2 JT 27 : (2018) 1 LawHerald(SC) 145 (2018) 2 MLJ (Criminal) 168 : (2018) 69 OrissaCriR 892 : (2018) 1 PCCR 197 : (2018) 2 PLJR 1 : (2018) 1 RajCriC 385 : (2018) 5 RCR(Criminal) 58 : (2018) 2 RLW 1551 : (2018) 1 Scale 626 : (2018) 3 SCC 66 : (2018) 2 SCC (Cri) 235 (2018) 1 SCCriR 156.

HC:Defamation, 500 IPC - Reputation is not at all a fact necessary to be proved in Criminal defamation.

Reputation is not at all a necessary fact to be proved in a charge under Section 500 of the Indian Penal Code, and hence it does not become a fact in issue.

Citation:32 Pat 276 : 1954 Cr LJ 121 : AIR 1954 Pat 84.

SC:If certain salient pieces of evidence were missed or were not appreciated, the Supreme Court will interfere.

The Supreme Court will not readily interfere with the finding of fact given by the High Court but if the High Court acts perversely or otherwise improperly, interference by the Supreme Court is called for. Where the judgement of the lower Court shows that certain salient pieces of evidence were missed or were not appreciated, the Supreme Court will interfere

Case:

State of Madras Vs. Vaidyanatha Iyer

Citation:

AIR 1958 SC 61 : 1958 Cr LJ 232 : 1958 SCR 580.

SC:No infirmity attached to the testimony of police officials merely because they belong to police force.

Police as Witness - It is well settle that credibility of witness has to be tested on the touchstone of truthfulness and trustworthiness. It is quite possible that in a given case, a Court of law may not base conviction solely on the evidence of complaint or a police official but it is not the law that police witnesses should not be relied upon and their evidence cannot be accepted unless it is corroborated in material particulars by other independent evidence. The presumption that every person acts honestly applies as much in favour of a police official as any other person. No infirmity attached to the testimony of police officials merely because they belong to police force. The rule of prudence may require more careful scrutiny of their evidence. But, if the Court is convicted that what was stated by a witness has a ring of truth, conviction can be based on such evidence.

Case:State of Maharashtra Vs. Damu Gopinath Shinde

Citation:

AIR 2000 SC 1691

SC:Registrars and other Officers under Co-operative Societies Act are not "public servants" within the ambit of S. 21 of the Indian Penal Code.

A "public servant" within the meaning of S. 2 of the Maharashtra Co-operative Societies Act, 1960, is not a "public servant" within the meaning of S. 2 of the Prevention of Corruption Act 1947 by virtue of the provisions of S. 161 of the Maharashtra Co-operative Societies Act, 1960, read with S. 21 of the I. P. Code. It is undoubtedly true that the Co-operative Societies Act has been enacted by the State Legislature and their powers to make such legislation is derived from Entry 32 of List II of the Seventh Schedule to the Constitution. The Legislature, no doubt, in S. 161 of 1960 Act, has referred to the provisions of S. 21 of the I. P. Code. But such reference would not make the Registrars and other Officers under Co-operative Societies Act "public servants" within the ambit of S. 21 of the I. P. Code.

Case:

State of Maharashtra Vs. Laljit Singh Shah

Citation:

AIR 2000 SC 937 : 2000 SCC (Cri) 533 : (2000) 2 SCC 699.

SC:Chief Justice of India & High Courts and their respective CJs are public authorities within the meaning of RTI law - Right to Information Act (2005), S. 2(h).

Constitution of India, Arts. 124, 214 - Public authority - Supreme Court is a public authority - And  office of Chief Justice is not separate from Supreme Court - Hence, there will be only one CPIO - Equally true is about High Courts and their respective CJs.

Case:Central Public Information Officer Vs. Subhash Chandra Agarwal

Citation:2019 ALL SCR 2593.

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SC:Professional misconduct means conduct which would reasonably be regarded as disgraceful or dishonourable by legal practitioners of good repute and efficiency - mere negligence won't be professional misconduct, though the client may be entitled to a compensation from his counsel.

Advocates Act 1961, S. 35 - Professional misconduct means conduct which would reasonably be regarded as disgraceful or dishonourable by legal practitioners of good repute and efficiency. Mere negligence, even of a serious character will not suffice to found a charge of Professional misconduct. But if counsel, by his acts or omission causes the interest of the party, engaging him in any legal proceedings to be prejudicially affected, he does so at his peril and the party is entitled to compensation from his own counsel.

Case:

Manjit Kaur Vs. Deol Bus Service

Citation:AIR 1989 P & H 183 at p. 185, (1989) 95 PLR 497, ILR (1989), P & H 370.

SC:Without poof of demand of bribe, no corruption case made out - Prevention of Corruption Act - Ss. 7, 13(2) r/w 13(1)(d) - Illegal gratification.

Held, what constitutes illegal gratification is question of law while whether on evidence that crime is committed is question of fact - Where evidence regarding demand and acceptance of bribe leaves room for doubt and does not displace wholly presumption of innocence, charge cannot be said to have been established - On facts held, since proof of demand which is an indispensable essentiality was absent, High Court was justified in quashing charges framed thereunder (Paras 28 and 29).

Case:

State Vs. Anup Kumar Srivastava

Citation:

(2017) 15 SCC 560; (2018) 1 SCC (Cri) 816; AIR 2017 SC 3698

SC:Fair trial - Court's duty to ensure that witnesses depose truthfully and fearlessly.

Held, fair trial is possible only when witnesses are truthful as they are the eyes and ears of the court - Thus, it is necessary to ensure that trial is conducted fairly where witnesses are able to depose truthfully and fearlessly - Constitution of India, Art, 21 - CrPC, 1973, S. 309 - Evidence Act 1872, Ss. 167 and 154

Case:Dinubhai Boghabhai Solanki Vs. State of Gujarat

Citation:(2018) 11 SCC 129; (2018) 2 SCC (Cri) 430; AIR 2017 SC 5690

SC: Supreme Court's power to punish for contempt of itselfa d lower courts - Scope - Taking suo motu cognizance of contempt of ITAT - is Legal and proper.

Held, Supreme Court can punish not only for contempt of itself but also for contempt of all courts and tribunals subordinate to it including Income Tax Appellate Tribunal - Taking suo motu cognizance of contempt of ITAI by Supreme Court, although would render the contemner unable to appeal to any other court, held, not improper - Hence, the contemnor's contention that the Supreme Court, rejected - Further held, S. 15 of Contempt of Courts Act also empowers Supreme Court Rules - Contempt of Courts Act, 1971, Ss. 15 and 2(c) - Income Tax Act, 1961, Ss. 2(4) and 252 & 254.

Case:ITAT Vs. V. K. Agrawal

Citation:(1999) 1 SCC 16 : SC 452 AIR 1999.

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SC:False statement on oath is perjury - Notice issued.

Person verifying factually incorrect statement in SLP about High Court proceedings - Notice issued to show cause why contempt of court/ perjury proceedings be not instituted against him.

Penal Code, 1860, S. 191 - Contempt of Courts Act, 1971, S. 2(c).

Case:Timber (P) Ltd. Vs. Wazir Jai Singh,

Citation:1999 SCC (Cri) 347.

SUPREME COURT DIRECTION ON ARREST;

In view of the increasing incidence of violence and torture in custody, the

Supreme Court of India (in D.K.Basu vs. State of West Bengal (1997) AIR 1997

SC 610) has laid down 11 specific requirements and procedures that the police

and other agencies have to follow for the arrest, detention and interrogation of any

person. These are:

1. Police arresting and interrogating suspects should wear “accurate, visible and

clear” identification and name tags, and details of interrogating police officers

should be recorded in a register.

2. A memo of arrest must be prepared at the time of arrest. This should:

 Have the time and date of arrest.

be attested by at least one witness who may either be a family member of

the person arrested or a respectable person of the locality where the arrest was

made.

 be counter-signed by the person arrested.

3. The person arrested, detained or being interrogated has a right to have a

relative, friend or well-wisher informed as soon as practicable, of the arrest and the

place of detention or custody. If the person to be informed has signed the arrest

memo as a witness this is not required.

4. Where the friend or relative of the person arrested lives outside the district, the

time and place of arrest and venue of custody must be notified by police within 8 to

12 hours after arrest. This should be done by a telegram through the District Legal

Aid Authority and the concerned police station.

5. The person arrested should be told of the right to have someone informed of

the arrest, as soon as the arrest or detention is made.

6. An entry must be made in the diary at the place of detention about the arrest,

the name of the person informed and the name and particulars of the police

officers in whose custody the person arrested is.

7. The person being arrested can request a physical examination at the time

of arrest. Minor and major injuries if any should be recorded. The

"Inspection Memo" should be signed by the person arrested as well as the

arresting police officer. A copy of this memo must be given to the person arrested.

8. The person arrested must have a medical examination by a qualified

doctor every 48 hours during detention. This should be done by a doctor who is on

the panel, which must be constituted by the Director of Health Services of every

State.

9. Copies of all documents including the arrest memo have to be sent to the Area

Magistrate (laqa Magistrate) for his

record.

10. The person arrested has a right to meet a lawyer during the interrogation,

although not for the whole time.

11. There should be a police control room in every District and State headquarters

where information regarding the arrest and the place of custody of the person arrested

must be sent by the arresting officer. This must be done within 12 hours of the arrest

The control room should prominently display the information on a notice

board.

These requirements were issued to the Director General of Police and the

Home Secretary of every State. They were obliged to circulate the

requirements to every police station under their charge. Every police station

in the country had to display these guidelines prominently. The judgment also

encouraged that the requirements be broadcast through radio and television and

pamphlets in local languages be distributed to spread awareness.

These requirements are in addition to other rights

and rules, such as:

• The right to be informed at the time of arrest of the offence for which the person is

being arrested.

• The right to be presented before a magistrate within 24 hours of the arrest.

• The right not to be ill-treated or tortured during arrest or in custody.

• Confessions made in police custody cannot be used as evidence against the accused.

• A boy under 15 years of age and women cannot be called to the police station only for

questioning.

[ D ]:- Section 197(1)(3) CRPC Police Act, Section 29 Allegation upto effect that the petitioner-police officer failed to get the summons of one of the witnesses in a criminal case returned either served or unserved to the trial Court-Further allegation that he did not response to the show cause notice issued by the trial Court seeking the explanation as to why   the summons of the witness has not been returned served or unserved-Act or omission on part of him is very much connected to his official duty Proceedings are liable to be terminated for lack of prosecution sanction. (Paras 13, 14, 16 to 19)

VK Godika v/s State of Rajasthan CMP 2403/14 [ VIJAY JJ ]

[ RAJASTHAN HIGH COURT ]

Further the petitioners argue that section 92(2) of CrPC empowers the police to seek such information for an ongoing investigation and also stated that the Ministry of Communication and Information Technology has issued circular in this regard in 2014. The advocate for the petitioners Mr. CV Nagesh further argued that the question of vicarious liability would not arise out of a criminal proceeding. http://lawtimesjournal.in/in-case-alleging-disclosure-of-call-details-without-consent-against-airtel-chairman-and-md-karnataka-high-court-quashes-charges/

Hurray🕺🏾Its crystal clear now that; Private property is a human right: Determined on 13th Jan’2020; by The Hon’ble Supreme Court

'Govt Servant Has Right To Free Speech' : Tripura HC Sets Aside Suspension Of Staff For Attending Political Rally & FB Post [Read Judgment]

Educational Institutions Comes Within The Meaning Of 'Establishments' Under Section 1(5) Of The ESI Act, 1948 : Calcutta HC [Read Judgment] https://www.reddyandreddy.org/educational-institutions-comes-within-the-meaning-of-establishments-under-section-15-of-the-esi-act-1948-calcutta-high-court/

SC:Cheating or breach of trust is not part of duty of a government servant - Sanction for prosecution not required.

For offences under sections 406 and 409 read with section 120-B of the IPC, sanction under section 197 of the Cr PC is a condition precedent for launching the prosecution.Sections 406 and 409 of the IPC are cognate offences in which the common component is criminal breach of trust. When the offender in the offence under section 406 is a public servant(or holding any one of the positions listed in the section), the offence would escalate to section 409 of the IPC read with section 120-B, it is not part of duty of the public servant to enter into a criminal conspiracy for committing breach of trust, there was no sense in stating that if the offence is under section 406 read with section 120-B, IPC, it would make all the difference vis-a-vis section 197 of the Cr. P.C .

Case:

State of Kerala Vs. V Padmanabhan.

Citation:

AIR 1999 SC 2405

Negligence tantamount to dereliction of duties would be misconduct. This judgement has failed to consider this aspect which could have resulted in a huge loss of revenue to the exchequer. Moreover in all corruption cases unless the accused I'd caught red handed, it's difficulty to establish quid pro quo.

A wrong decision does not give a right to a person to enforce the wrong order and claim equality: Delhi HC

Link to Judgment: https://www.reddyandreddy.org/a-wrong-decision-does-not-give-a-right-to-a-person-to-enforce-the-wrong-order-and-claim-equality-delhi-hc/

Senior Divisional Manager, LIC of India v. Renuka Sharma

Judicial Process Should Not Be An Instrument of Oppression or Needless Harassment: Allahabad HC

http://www.legalservicesindia.com/law/article/1392/5/Judicial-Process-Should-Not-Be-An-Instrument-of-Oppression-or-Needless-Harassment-Allahabad-HC

https://www.latestlaws.com/latest-news/hc-to-litigatant-we-shall-not-allow-anyone-to-use-judicial-processes-as-instrument-of-oppression-or-harassment-read-the-judgement/

Services Of Contractual Employee Can Be Counted Towards Qualifying Service For Grant Of Pension, Post Regularization: HP HC

Death Of A Youth In A Pothole; Kerala HC Express Apology To The Family Of Deceased For The 'Systemic Failure'[Read Order]