LEGAL NEWS & JUDGMENTS 05.04.2009

Judiciary must face new challenges: Patil
http://www.assamtribune.com/scripts/details.asp?id=apr0509/at02
Staff Reporter GUWAHATI, April 4 – President, Pratibha Devisingh Patil today urged members of the judiciary to face emerging challenges and evolve with the times so that justice was available to all, including the weak and vulnerable sections of the country. “The doors of the judiciary are open to all. However, recourse to justice is an expensive proposition. Many, particularly those of the disadvantaged sections of society, are unable to afford the associated costs to justice…” In this regard the President appealed to lawyers to come forward and undertake cases of the weaker sections free of cost. “It is through such kind of steps that law and the judicial system can be instruments of social welfare.” Speaking at the concluding session of the diamond jubilee celebrations of the Gauhati High Court, the country’s first citizen laid stress on enhancing legal literacy to help all stakeholders of the judicial system. Legal literacy, in her view, was crucial to make people aware of the legalities involved in an issue and at times helped avoid unnecessary litigation.Revealing her happiness to be a part of the Gauhati High Court’s diamond jubilee celebrations she said that the institution has been able to maintain high standards of judicial values. “It has produced lawyers and judges of eminence, who have enriched the legal field with their knowledge, learning and erudition.”Acknowledging the uniqueness of the Gauhati High Court, the President stated that it exercises jurisdiction over seven north-eastern States. “Its task is onerous, as the region is full of wide variations of geography and it is inhabited by a diverse population, including a number of tribes each with its rich tradition of customary law and practice.”She noted that in the hill regions, a conciliatory approach, rather than an adversarial one was adopted in settling disputes. “I am told that this process is not only expeditious, but its decisions are long lasting.” Such models of justice delivery could be examples for the rest of the country, she added.The President, referring to complex issues in the age of globalisation manifesting in growth of organised violence, and new crimes like cyber fraud, said that they pose fresh challenges that the judiciary would have to meet. She was confident that the Gauhati High Court would be able to rise up to occasion and its efforts to deliver justice will meet with success.Speaking on the occasion, Governor of Assam SC Mathur described it as an honour to be present in the celebrations and said that judiciary has and will continue to be an important pillar of India’s democratic framework. However, he went on to say, “After more than six decades since our Independence, we need to seriously introspect as to whether our judicial machinery has lived up to its expectations of securing justice to all”.Also present on the occasion today were the Chief Justice of the Gauhati High Court J Chelameswar, the Governors of Meghalaya and Arunachal Pradesh, several legal luminaries and distinguished members of the Bar and Bench of all the north eastern states.

President expresses concern over backlog of cases in judiciary
http://www.samaylive.com/news/president-expresses-concern-over-backlog-of-cases-in-judiciary/616798.html

Published by: Noor KhanPublished: Sat, 04 Apr 2009 at 20:18 IST
Guwahati, Apr 4 : President Pratibha Patil today expressed concern over the huge backlog of cases in the Indian judicial system saying innovative ways to address this issue needs to be developed.The President who was speaking at the closing session of the diamond jubilee function of the Guwahati High Court, said when a person knocks at the door of justice, he does so because he has grievances and with the expectation that the matter will be dealt within a reasonable period of time.”This brings me to the concern about the rate of disposal of cases and the huge backlog. I have sometimes heard that legal disputes are passed on from one generation to another… innovative ways for addressing the situation and cooperative efforts at all levels of the judiciary are necessary,” Patil said.Referring to a lecture on judicial reform delivered by Chief justice of India K G Balakrishnan, she said, he has made an interesting “suggestion”.”He said the court should ensure that within the next three years, not more than five per cent of cases pending with them should be more than five years old,” she said. (MORE)

Sanjay Dutt Is Small Fry. What About The Real Big Boys?-II
http://www.thedailyindian.com/?p=2268
Posted by TDI Bureau On April – 4 – 2009
Arindam Chaudhuri
The real bigger fry are continuing to make merry at our expense. Civil society needs to tackle this twin menace most urgently if it wants a future for India
I totally disagree. I think the Indian judiciary and the political class are both guilty of depriving the average Indian citizen of even basic ordinary choices. Economics says that crime too is ruled and infected by incentive — that is, the less the chances of you being punished, the more the chances of you committing a crime. The rancid Indian political class is aware of this delightful incentive. And the pallid Indian judiciary has generously not bothered to redress the balance. Look at Sanjay Dutt. He was arrested for a crime allegedly committed in 1993; and you have puissant Indian courts still trying to decide if he should contest elections! It is only in the last few years that sustained pressure from civil society has forced the judiciary to send even powerful people — including politicians — behind bars. Otherwise, it was simply case after nauseant case of a criminal politician benefiting election after election as cases dragged on in regrettably inefficacious courts.
The deeper problem is the Indian judiciary not making an example of rotten apples within its own suppurating system. We have been profanely embarrassed by public revelations that millions of rupees have been delivered to the houses of High Court judges. We have seen the peccant spectacle of a High Court judge facing impeachment. We have seen credible allegations of a top judicial officer passing orders to favour his family. We have seen the caustic provident fund scam in Uttar Pradesh where numerous judges — some now in High Courts and the Supreme Court — have brazenly misused their powers. We have seen a licentious High Court judge enterprisingly exchange sexual favours for judicial orders. We have seen snappish judges protesting vehemently that they can’t declare their assets. And one thought Caesar’s wife should be above suspicion! We seem to have seen it all. And yet, where is the movement towards basic reforms in judiciary where the rotten apples could have been punished so severely that the ‘incentive’ system would have worked against malefic corruption and worse?
If even those opprobrious judicial officers facing serious allegations of corruption and crime can use the system to get away, what can one expect of pathologically criminal politicians who anyway don’t make tall promises about sobriety and honesty?
Sanjay Dutt is simply a small fry. The real bigger fry are continuing to make merry at our expense. Civil society needs to tackle this twin menace most urgently if it wants a future for India.
(Arindam Chaudhuri is Editor-in-Chief of Planman Media)Concluded

CJI defends Cr.P.C. amendments
http://lawandotherthings.blogspot.com/2009/04/cji-defends-crpc-amendments.html
Sunday, April 05, 2009
In the 10th Kohli Memorial Lecture on ‘Criminal Justice System – growing responsibilities in light of contemporary challenges’, delivered on 2 April 2009, the Chief Justice of India defended the recent amendments to the Code of Criminal Procedure thus:
The legislative intent behind giving this discretionary power to the police is to reduce the high incidence of arbitrary and unnecessary arrests that take place in our criminal justice system. Some critics of this proposed change have argued that the deterrent value of penal provisions will be weakened since arrests will not be made in cases where the suspected persons use their money or muscle-power.This criticism is unfounded because the proposed change does not take away the power to arrest in its entirety. Instead it requires arrests to be made in a reasonable and proportionate manner. The Investigating Officer (I.O.) is required to record reasons in writing for making an arrest, thereby creating a reliable basis for subsequent judicial scrutiny. In instances of exigency, such reasons can of course be recorded after the actual act of arrest. Such a requirement is in conformity with ‘due process’ norms and it will create a measure of accountability in police behaviour apart from providing material for consideration during bail proceedings. Furthermore an Investigating Officer is also to be given the power to issue a ‘notice of arrest’ to the person sought to be apprehended. To my mind, these changes proposed to the law of arrest are well-intentioned and are being unfairly criticised by some.
I have also supported these amendments in this article and previously on this blog. SR Sankaran also offers his support for the amendments in this article in the EPW.
Posted by tarunabh at 11:39 AM

Cop moves court over age bar to study law
http://timesofindia.indiatimes.com/Mumbai/Cop-moves-court-over-age-bar-to-study-law/articleshow/4360077.cms
4 Apr 2009, 2353 hrs IST, Swati Deshpande, TNN
MUMBAI: Shabnam Mulani, a 39-year-old police constable in Mumbai, is not taking no for an answer and has moved the Bombay high court to challenge the “discriminatory, draconian and highly irrational” rule introduced by the Bar Counil of India to bar anyone over 30 years of age from studying law in India. Hers is the second petition challenging the new rule that universities and law colleges are likely to enforce from this academic year. Advocate Yasmin Tavadia, 52, was the first to file a PIL against the restrictive rule and the Bombay HC issued a court notice to the BCI chairperson to give his say on April 16. In a new development, Tavadia wrote to Mumbai University and state bar council to find out whether the statutory requirement of consultation was conducted by the BCI. The woman constable, an Arts graduate, said she was qualified to take admission but was informed by the chairperson board of studies in law that she had been rendered ineligible due to her age. Her lawyer Mahesh Vaswani said the rule was not only unconstitutional but was also depriving an otherwise eligible person from a chance to improve her knowledge and skills to help her in her job. This way, she cannot even take up law as a profession later. The age cut-off for LLB admissions has been criticised by lawyers across the country; petitions are even being drafted in Hyderabad and other cities to challenge the law.

SEBI cases: Consent settlement preferred
http://sify.com/finance/fullstory.php?id=14878649
Ravi Ranjan Prasad Saturday, 04 April , 2009, 12:21

Mumbai: SEBI cases settled through issue of consent orders in matters involving manipulations and irregularities relating to the securities market are gaining in number.
The introduction of the consent order scheme in 2007 was with a view to clear the huge backlog of cases at SEBI without much delay, through an alternative form of dispute resolution.
A survey of the consent orders issued so far indicates increasing preference among the affected parties for the new mechanism for settling pending cases before SEBI.
In the first three months of 2009, around 90 cases have been settled through consent orders, while in 2008 more than 250 cases were settled.
SEBI raises trading limits in currency derivatives
In fact many high-profile cases involving serious violations, where the affected parties have been served with show-cause notices by SEBI, are opting for consent terms to close the matter. Even cases pending before the Supreme Court, or other designated courts for prosecution, as well as those before the Securities Appellate Tribunal, are now being settled by issue of consent orders.
SEBI seeks feedback on extending market hours
The SEBI case against UBS Securities, debarring the Swiss firm from issuing participatory notes for its role in the stock market crash of 2004, was settled on consent terms. The settlement brought to an end the four-year journey of the case from Securities and Exchange Board of India to the Securities Appellate Tribunal, and then to the Supreme Court. On February 9, the Supreme Court disposed of the case between the SEBI and UBS after the parties said they had agreed to amicably settle the matter on consent terms.
More India business stories
Consent orders have no doubt helped ease the burden on the regulator in clearing long-pending matters. But at times cases involving manipulations in the market have been settled for as low as Rs 10,000 which legal experts say raises the question of moral hazard.
“There is a moral hazard in issuing consent orders in cases involving IPO manipulations and other market irregularities, as it creates no deterrent for offenders. Even some of the habitual offenders are having the benefit of the scheme,” said a legal expert associated with SEBI matters.
“The consent orders may be passed at any stage after probable cause of violation has been found. However, in the event of a serious and intentional violation, the process should not be completed till the fact finding process is completed by way of investigation or otherwise,” say SEBI’s guidelines.
As a result of the consent order scheme, fewer cases are now going to Securities Appellate Tribunal, which has settled a large number of appeals filed by the aggrieved parties against whom SEBI has passed orders.

Probe against Sufiya gets underway
http://keralaonline.com/news/probe-sufiya-underway_30551.html

Kochi, Saturday, April 04, 2009: The Prosecution Director General VG Govindan Nair has directed the state Home Ministry to reinvestigate all case against PDP Abdul Nasser Maudani and his wife Sufiya Maudani which includes the Kalamasserry bus torching incident. According to sources, the Home Ministry has been legally advised that if no interrogation takes place it would be considered as a serious laxity in the process of investigation.The Prosecution Director General had yesterday held high-level talks with police officials regarding this. The direction for probe comes in the wake of various allegations that the people who took part in the Panayikullam, Wagamon SIMI camps are present in the PDP led by Maudani and the PIL to ban PDP is all set to be heard at the Kerala High Court next week. The Prosecution Director General has seeked for all details of the investigation from Home Ministry.However, all cases pending against Abdul Nasser Maudani were made void by Ernakulam Additional Chief Judicial Magistrate a year before due to technical reasons.
Meanwhile, Abdul Nasser Maudani has been refuting all charges against him calling it as propaganda “unleashed” by IUML and Congress.
Last week a magistrate has sought a police report on the allegation that Sufiya Maudani, wife of People’s Democratic Party chairman Abdul Nasser Maudani, was behind the burning of a Tamil Nadu bus near Kochi four years ago to protest against the “torture” of her husband in Coimbatore jail.Aluva first class magistrate V.S. Vidyadharan directed the police at Kalamassery, near Kochi, to submit the report by June 1. The charge is that Sufiya had plotted and funded the bus burning to send a strong message to the Tamil Nadu government after she learnt about her husband’s “plight” in the high-security jail in Coimbatore.Maudani, with whom the CPM has an alliance for the coming polls, was accused of masterminding blasts in Coimbatore to assassinate BJP leader L.K. Advani in 1998. He has since been acquitted.A Thrissur resident, P.D. Jose, contended in his complaint that judicial confessions by the accused in the burning of the passenger bus at Kalamassery on September 9, 2005, incriminated Sufiya but the police had refused to interrogate her.Key accused Majeed Parambayi, the PDP secretary in the northern Kannur district in 2000-01, had alleged in his statement that he and three others got Rs 20,000 each from Sufiya. The bus, on a night trip, was torched after assailants offloaded passengers in a deserted area.According to Majeed, Sufiya had broached the idea with him at her residence in Kochi.The PDP had condemned the incident, denying it had anything to do with the arson.In another embarrassment, Sainudiin alias Sattar, picked up by Karnataka police in connection with blasts in Bangalore and Ahmedabad, allegedly said he had close contact with Abdul Maudani.

1984 riots: Sikh body claims proofs questioning CBI
http://www.newstrackindia.com/newsdetails/81697
New Delhi, Sat, 04 Apr 2009 NI Wire
Gurpatwant Singh Pannun, legal advisor Sikhs For Justice, a US based human rights group who is advocating the cases of 84 Sikh Genocide with the help of All India Sikh Students Federation President Karnail Singh Peermohammad, stated that he has solid proofs establishing the role of CBI in giving clean chit to Jagdish Tytler in 1984 Sikh massacre.
Attorney Pannun presented record of his conversations and correspondence with SP Ratn Sanjay and DSP Kishore of CBI who were in the United States from December 22 to December 26 to purportedly record the statements of witnesses against Jagdish Tytler. The correspondence clearly shows that the said CBI officers conducting investigation were made aware of the additional witness against Jagdish Tytler’s.
As per attorney Pannun the new witness’s account actually corroborates the statement of key witness Giani Surinder Singh, who was also named by Giani Surinder Singh in his statement as being present at Gurdawara Pulbangash. Not only was CBI requested time again to record testimony of this new witness during the team’s visit to USA, but was also reminded of the same by Attorney Pannun through an email sent to SP Ratn Sanjay on January 16, 2009 after the team had returned to India. However, all the pleas of Attorney Gurpatwant Singh Pannun, to record additional witness’s testimony fell on the deaf ears of CBI, who proved to be hell bent on giving clean chit to Tytler before the upcoming parliamentary elections.
This is on top of what witnesses’ Attorney Pannun claim to be a hoodwink in the name investigation of when the CBI’s approach in questioning the witnesses Jasbir and Surinder was so preposterous that most of the time was spent by the CBI on questions as to the color of clothes worn by accused, size, number and color of shoes worn by the accused and such other irrelevant, rudimentary and mundane details. As per Jasbir Singh and Surinder Singh, the individuals whose statements were recorded by the CBI, Ratn Sanjay and DSP Kishore time and again threateningly told witnesses “you are lying” and “will file charges against you instead for lying to CBI”.
CBI’s intention and collaboration with Jagdish Tytler is also evident from the fact that days before the CBI’s official announcement of handing the clean chit to Tytler, he had openly declared and announced on the national media that CBI has decided to give clean chit in 1984 Sikh massacre case.
Gurpatwant Singh Pannun stated that their organizations are preparing to file PIL petitions before High Courts of the states where Sikhs were killed in November 1984. The Petitions will request the respective high courts to conduct a judicial inquiry into the killings of thousands of Sikhs and order the filing of charges against the responsible for the killings.
Attorney Pannun further stated that PIL petitions will be filed against all those who are responsible for killings of Sikhs including Jagdish Tytler, Sajjan Kumar, Kamal Nath, Arjun Singh and others who are being nominated to fight the parliament elections to force Election Commission that the killers of thousands of Sikhs be stopped from fighting the elections.

Panel to monitor polls in state
http://timesofindia.indiatimes.com/Cities/Panel-to-monitor-polls-in-state/articleshow/4357158.cms
4 Apr 2009, 0042 hrs IST, Jayanta Gupta, TNN
KOLKATA: The National Election Watch (NEW) has drawn up a panel to monitor the general election in West Bengal. Among those in the new committee are former chief of army staff, Gen (retd) Shankar Roychowdhury, Lt Gen (retd) J K Mukherjee, Spastic Society of India chairperson Uma Ahmad, educationist Shibani Iyengar, Justice (retd) Manoj Mukherjee and social worker Dr Tushar Kanjilal. Happenings Trust head Vijay Iyengar will also be part of the team. He has also been part of Election Watch in West Bengal on the last two occasions. “We have not yet finalised exactly how the committee will function. However, the main role will be to inform voters about the candidates contesting from a particular constituency. The voters have the right to know the kind of person they are voting for. The voters must have easy access to affidavits submitted by the candidates during the filing of nominations. We also hope to teach new voters (those who have just turned 18) how to vote,” Roychowdhury said. The committee will also try to evolve a system for voters who do not find any of the candidates suitable. “The electronic voting machines do not have a button that will automatically cancel the vote of a person. However, the rules allow him to cancel his vote. This is something we will try to work out,” the former army chief added. NEW is a nationwide campaign comprising over 1,200 NGOs and other citizen-led organisations working on electoral reforms, improving democracy and governance in India. It has been active in almost all states during general elections ever since the Association for Democratic Rights (ADR), along with two other organisations, won a PIL in the Supreme Court in 2002, on the mandatory disclosure of educational, financial and criminal backgrounds by candidates. Apart from providing information about candidates, NEW tries to give details about constituencies based on various human development index parameters. It also provides a platform to the general public to comment on work done by their elected representatives and also rates various leaders based on comments of the electorate and the improvement they have brought about in constituencies. ADR, on the other hand, was founded on August 1, 1999, by a group of professors from the Indian Institute of Management (Ahmedabad) and National Institute of Design as well as some IIM alumni. The aim was to work towards strengthening democracy and governance in India by focusing on a fair and transparent electoral process. Social worker Dr Tushar Kanjilal who has worked wonders with the Sunderbans villagers was not fully aware of what the organisations aim to do. When told that NEW and ADR are making attempts to ensure that elections are conducted in a free and fair manner, he broke out in laughter. “How can elections in this country ever be free and fair? Money has to be paid even for basic development work at the panchayat level. However, I shall certainly try to be part of the panel,” he remarked.

Sixteen arrested for destruction of mangroves
http://timesofindia.indiatimes.com/Cities/Sixteen-arrested-for-destruction-of-mangroves/articleshow/4356986.cms
3 Apr 2009, 2348 hrs IST, Sandhya Nair, TNN
MIRA ROAD: The Mira Road police on Thursday arrested 16 people on charges of destroying mangroves at Kanakia Nagar. They have been sent to judicial custody till April 15 by the Thane civil court. Dumping of garbage and construction debris in the last of March had destroyed large patches of mangroves along the creek at Kanakia Nagar. Civic contractors assigned the task of clearing garbage from urban areas were dumping it on the mangrove plot. Construction debris was also being unloaded there. The police seized seven dumpers belonging to civic contractors. They also recovered a JCB machine owned by the Mira-Bhayander Municipal Corporation (MBMC). The entire Mira-Bhayander area has a large stretch of mangroves, most of which has been reclaimed by builders, allegedly in connivance with MBMC officials. Since last week, locals have been noticing the mangroves in Kanakia Nagar being wiped out. Most of the reclamation work is carried out early in the morning or late in the evening, said a resident. According to sources, the mangrove plot is being levelled to make a road that would connect residential complexes coming up in the vicinity. Following a PIL filed by the Bombay Environmental Action Group (BEAG) in 2005, the Bombay high court had directed a freeze on the destruction and cutting of mangroves in the state. In January this year, BEAG had knocked on the high court’s door expressing concern over the destruction of mangroves in Mira-Bhayander, alleging that the civic administration was also responsible for it. The court had asked the MBMC to reply to the allegations. Mangroves have made way for an artificial beach at Jesal Park in Bhayander (E). BEAG, in its report to the high court, had cited instances of mangroves being destroyed in RNP Park through diversion of sea-water and garbage dumping. Among those held were truck owners Rajitram Yadav, Ranatchand Yadav, Bhaiyalal Yadav and Manoj Ramzan Shaikh. The police also arrested 12 drivers and cleaners. They were, however, yet to take action against the errant civic officials. sandhya.nair@timesgroup.com

HC enhances ex-army man’s accident claim from 31k to 4 lakh
http://www.indopia.in/India-usa-uk-news/latest-news/541307/National/1/20/1
Published: April 5,2009

New Delhi, Apr 5 The Delhi High Court has come to the rescue of a former army man who had received disability due to a road accident and enhanced the compensation to Rs 4,20,000 from Rs 31,000 awarded by a tribunal.
Allowing a petition for enhancement of compensation filed by Sher Singh, a hawaldar in army at the time of the accident, Justice J R Midha said,”The award is enhanced from Rs 31,000 to Rs 4,20,000 along with interest at 7.5 per cent per annum.”
On February 28, 1999, Sher Singh and his son were going in a cycle rickshaw when a speeding jeep came from opposite direction and hit the rickshaw resulting in serious injuries to Singh.
The court directed Naresh Kumar, owner of the vehicle, to deposit the enhanced amount with interest with the Motor Accident Claim Tribunal (MACT) within a month.
Justice Midha directed the tribunal to release 30 per cent of the total amount to the victim immediately and rest would remain as the fixed deposit for ten years.
As per the medical records, Singh suffered permanent disability of 25 per cent in the left limb.
Source: PTI

Court upholds police’s right to further probe
http://www.hindu.com/2009/04/05/stories/2009040554421000.htm
J. Venkatesan
NEW DELHI: The power of the investigating agency to conduct further investigation in a case cannot be curtailed or tied down on the ground of mere delay in trial and permission of the magistrate/court concerned is not required for doing so, the Supreme Court has held.
“The mere fact that there may be delay in concluding the trial should not stand in the way of further investigation if that would help the court in arriving at the truth and do real and substantial as well as effective justice,” said a Bench of Justice S.B. Sinha and Justice P. Sathasivam.
‘Statutory right’
Writing the judgment, Mr. Justice Sathasivam said: “The law does not mandate taking prior permission from the Magistrate for further investigation. It is settled law that carrying out further investigation even after filing of the charge-sheet is a statutory right of the police. The material collected in further investigation cannot be rejected only because it has been filed at the stage of trial.”
The Bench pointed out that it was evident that under Section 173 (8) Criminal Procedure Code the police had a right to further investigation but not ‘fresh investigation’ or ‘re-investigation.’ The Judges said: “Further investigation is the continuation of the earlier investigation and not a fresh investigation or re-investigation to be started ab initio wiping out the earlier investigation altogether.”
In the instant case, charges were framed against appellants Rama Chaudhary and others by a sessions court in Bihar in March 2004. Even as the trial was coming to a close, a supplementary charge-sheet was filed in September 2007 in the same case and new witnesses were added. The court in February 2008 issued summons to the witnesses. The Patna High Court dismissed a revision petition against this order and the present appeal is directed against this judgment.
The Bench said: “The facts and circumstances show that the trial court is fully justified to summon witnesses examined in the course of further investigation. We do not find any valid ground for interference with the High Court order.”

JUDGMENTS

Sadhu Singh versus State of Punjab
http://legalapproach.net/case_details.php?jid=1423
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. OF 2009
(Arising out of S.L.P. (Crl.) No.6234 of 2008)
Sadhu Singh ..Appellant
versus
State of Punjab ..Respondent
J U D G M E N T Dr. ARIJIT PASAYAT, J.
1. Leave granted.
2. Challenge in this appeal is to the judgment of a Division Bench of the Punjab and Haryana High Court upholding the conviction of the appellant for offence punishable under Section 302 of the Indian Penal Code, 1860 (in short the ‘IPC’) and Section 27 of the Arms Act, 1959 (in short ‘Arms Act’).
Three persons faced trial for commission of murder of Jagdev Singh (hereinafter referred to as the ‘deceased’). Sadhu Singh, Wazir Singh and Harjinder Singh faced trial for alleged commission of offences punishable under Sections 302, 323 read with Section 34 IPC and Section 27 of the Arms Act. The trial Court held that the appellant was guilty of offence punishable under Section 302 IPC while the other two were guilty of offence punishable under Section 323 IPC. Additionally, appellant was found guilty of offence punishable under Section 27 of the Arms Act.
3. Prosecution version in a nutshell is as follows:
On November 12, 1996 Bachittar Singh (PW-3) along with his sons Sukhdev Singh (PW) and Jagdev Singh (hereinafter referred to as ‘deceased’) were returning to their village at about 9.00 p.m. on a tractor which was being driven by Bachittar Singh while his two sons were sitting on it and when they were about 5-7 Karams short of the house of accused Sadhu Singh they saw the three accused standing in Sadhu Singh’s doorway. At that time Sadhu Singh was armed with a 12 bore SBBL gun while Wazir Singh and Harjinder Singh alias Pappa were empty handed. Wazir singh and Pappa walked upto the tractor and stopped it. Thereafter, Wazir Singh raised a lalkara that Bachittar Singh and others should be taught a lesson for cultivating the land coming in their father’s share and thereupon Sadhu Singh fired a shot at the deceased and Pappa Singh started throwing bricks. Bachittar Singh and others raised alarm and the accused retreated to their house. When Bachittar Singh and Sukhdev Singh came down from the tractor they saw that Jagdev Singh had died. Bachittar Singh left Sukhdev Singh near the dead body and drove the tractor to his house from where he collected Baljinder Singh (brother-in-law of the deceased) and met S.I. Satwant Singh S.H.0., Police Station, Saddar (P.W.6), near the canal bridge within Bir Behman and narrated the occurrence to S.I. Satwant Singh who recorded his statement Ex. P. D. This statement was sent through Constable Chhinder Pal to Police Station Saddar for registration of the case after recording proceedings Ex. P D/2) by M.H. C. Sikandar Singh.
The Investigator took up investigation. The doctor found various injuries on the body of the deceased.
After completion of investigation charge sheet was filed. As the accused persons pleaded innocence, trial was held. In order to further its version the trial Court primarily relied on the evidence of PWs 1, 3 and 4. It did not accept the plea of right of private defence as set up by the accused persons. In appeal, the stand before the trial Court was re-iterated but the High Court found that there was no question of exercise of right of private defence.
4. Learned counsel for the appellant submitted that the trial Court has relied primarily on the statement recorded under Section 313 of Code of Criminal Procedure, 1973 (in short the ‘Code’). The factual scenario shows that the complainant was returning after ploughing the land in front of the house of the accused but correct genesis of the situation has not been brought on record. The deceased was about to hit the accused with a spear. The trial Court and the High Court proceeded on the basis as if the accused had time to go into his house and on that he picked up a gun. It was nobody’s case that the accused went inside and brought a gun. The trial Court makes out a third case. It was pointed out that the claim that the accused persons came and attacked the deceased and PWs is not established. In fact the trial Court and the High Court have not recorded any positive finding regarding the deceased and the PWs travelling in a tractor as on bullet marks were found on the tractor.
5. Learned counsel for the respondent-State on the other hand supported the judgment of the High Court.
6. A plea of right of private defence cannot be based on surmises and speculation. While considering whether the right of private defence is available to an accused, it is not relevant whether he may have a chance to inflict severe and mortal injury on the aggressor. In order to find whether the right of private defence is available to an accused, the entire incident must be examined with care and viewed in its proper setting. Section 97 deals with the subject-matter of right of private defence. The plea of right comprises the body or property (i) of the person exercising the right; or (ii) of any other person; and the right may be exercised in the case of any offence against the body, and in the case of offences of theft, robbery, mischief or criminal trespass, and attempts at such offences in relation to property. Section 99 lays down the limits of the right of private defence. Sections 96 and 98 give a right of private defence against certain offences and acts. The right given under Sections 96 to 98 and 100 to 106 is controlled by Section 99. To claim a right of private defence extending to voluntary causing of death, the accused must show that there were circumstances giving rise to reasonable grounds for apprehending that either death or grievous hurt would be caused to him. The burden is on the accused to show that he had a right of private defence which extended to causing of death. Sections 100 and 101, IPC define the limit and extent of right of private defence.
7. Sections 102 and 105, IPC deal with commencement and continuance of the right of private defence of body and property respectively. The right commences, as soon as a reasonable apprehension of danger to the body arises from an attempt, or threat to commit the offence, although the offence may not have been committed but not until that there is that reasonable apprehension. The right lasts so long as the reasonable apprehension of the danger to the body continues. In Jai Dev v. State of Punjab (AIR 1963 SC 612), it was observed that as soon as the cause for reasonable apprehension disappears and the threat has either been destroyed or has been put to rout, there can be no occasion to exercise the right of private defence.
8. The above position was highlighted in Rizan and Another vs. State of Chhattisgarh, through the Chief Secretary, Govt. of Chhattisgarh, Raipur, Chhatttisgarh (2003 (2) SCC 661), Sucha Singh and Anr. v. State of Punjab (2003 (7) SCC 643) and Bihari Rai v. State of Bihar (SLP (Crl.) No.862 of 2007 disposed of on 26th September, 2008)
9. When the factual scenario is examined it becomes crystal clear that even if it is accepted for the sake of arguments that the accused persons were at some point of time exercising the right of private defence it was exceeded. That being so, the plea regarding exercise of right of private defence cannot be sustained. However, the appropriate conviction would be under Section 304 Part I IPC. The conviction is altered accordingly. Custodial sentence of 10 years would meet the ends of justice.
10. The appeal is allowed to the aforesaid extent.

…… J. (Dr. ARIJIT PASAYAT)
.…… J. (ASOK KUMAR GANGULY)
New Delhi, March 31, 2009

Krishna Ghosh vs. State of West Bengal dated 2009-03-31
http://legalapproach.net/case_details.php?jid=1424

REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. OF 2009
(Arising out of SLP (Crl.) No. 7768 of 2007)

Krishna Ghosh ..Appellant
Versus
State of West Bengal ..Respondent

J U D G M E N T Dr. ARIJIT PASAYAT, J.

1. Leave granted.
2. Challenge in this appeal is to the judgment of a Division Bench of the Calcutta High Court upholding the conviction of the appellant for offence punishable under Sections 498-A and 302 read with 34 of the Indian Penal Code, 1860 (in short the ‘IPC’). The present appeal is filed by the appellant, husband of Yogmaya (hereinafter referred to as the ‘deceased’). A single appeal was filed by the present appellant and his mother-Gita Ghosh and
unmarried sister Kalyani Ghosh A-3.
3. Prosecution version in a nutshell is as follows:
One Jiten Ghosh happens to be the de facto complainant of the instant case who lodged one written complaint with the local P.S. at Ranaghat on 24.07.1987 at 11.05 hours with a plea that his niece (sister’s daughter) Yogmaya was married about 1 year 4 months ago with accused Krishna Ghosh after giving proper dowry. Krishna Ghosh, his mother Gita Ghosh and sister Kalyani Ghosh used to rebuke his niece on very trivial house-hold affairs as they did not like his niece as his niece used to intimate her agony to her parents and to him. They went to Yogmaya’s in-law’s house and used to pacify the matter and ameliorate the same for the benefit of the Yogmaya and thus the conjugal life of Yogmaya was not so peaceful. On 24.07.1987 when he had been to his field one Tentul Mondhal intimated him that the woman folk were weeping at his house and he came to learn from his daughter-in-law Asha Ghosh that his niece Yogmaya had died. Then he proceeded to the house of Yogmaya which was about one mile away from his house and found the dead body of his niece Yogmaya at the verandah of the house of the accused covered with a cloth and the in-laws of Yogmaya were absconding at the relevant time. He came to learn from one Badli Ghosh, wife of Rishipada Ghosh, that on 23.07.1987 at about 8 p.m. she heard about the assault and crying and shouting of his niece Yogmaya but the persons of the locality could not enter into the house of the accused persons. On the relevant day, the dead body of Yogmaya was taken out by her mother-in-law and sister-in-law and one Brijbala and they fled away after covering the dead body with a cloth. After uncovering the cloth he found that Yogmaya sustained bleeding injuries on her ear, nose, left eye, back and leg. Yogmaya died due to assault and torture of her in-laws by chain.
Upon such complaint, the instant case germinated against the accused persons and the criminal law was set in motion after investigation and they came to the conclusion with the submission of charge-sheet against all the three accused persons under Sections 498A and 302 read with Section 34 IPC. Copies were duly supplied to the accused persons under section 207 of the Code of Criminal Procedure, 1973 (in short the ‘Code’) and the case was committed by the learned Magistrate to the Court of Sessions and the cognizance of the case was taken under Section 193 of Code and charges were framed in terms of section 228 (1) (b) of Code on 9th February, 1993.
Trial was held as the accused persons abjured guilt. Witnesses were examined and accused persons were examined under Section 313 of Code
Learned Sessions Judge, Nadia held that the prosecution has established the accusations and directed conviction as noted above. However, no separate sentence was imposed in respect of offence relatable to Section 498-A.
In appeal, the High Court found that the same was without merit and dismissed the same by the impugned judgment.
4. In support of the present appeal, learned counsel for the appellant submitted that the case rests on circumstantial evidence and the circumstances do not establish the guilt of the accused.
5. Learned counsel for the respondent on the other hand supported the judgment of the High Court.
6. It has been consistently laid down by this Court that where a case rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person. (See Hukam Singh v. State of Rajasthan AIR (1977 SC 1063); Eradu and Ors. v. State of Hyderabad (AIR 1956 SC 316); Earabhadrappa v. State of Karnataka (AIR 1983 SC 446); State of U.P. v. Sukhbasi and Ors. (AIR 1985 SC 1224); Balwinder Singh v. State of Punjab (AIR 1987 SC 350); Ashok Kumar Chatterjee v. State of M.P. (AIR 1989 SC 1890). The circumstances from which an inference as to the guilt of the accused is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances. In Bhagat Ram v. State of Punjab (AIR 1954 SC 621), it was laid down that where the case depends upon the conclusion drawn from circumstances the cumulative effect of the circumstances must be such as to negative the innocence of the accused and bring the offences home beyond any reasonable doubt.
7. We may also make a reference to a decision of this Court in C. Chenga Reddy and Ors. v. State of A.P. (1996) 10 SCC 193, wherein it has been observed thus:
“In a case based on circumstantial evidence, the settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. Further the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence….”.
8. In Padala Veera Reddy v. State of A.P. and Ors. (AIR 1990 SC 79), it was laid down that when a case rests upon circumstantial evidence, such evidence must satisfy the following tests:
“(1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;
(2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused;
(3) the circumstances, taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and
(4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence.
9. In State of U.P. v. Ashok Kumar Srivastava, (1992 Crl.LJ 1104), it was pointed out that great care must be taken in evaluating circumstantial evidence and if the evidence relied on is reasonably capable of two inferences, the one in favour of the accused must be accepted. It was also pointed out that the circumstances relied upon must be found to have been fully established and the cumulative effect of all the facts so established must be consistent only with the hypothesis of guilt.
10. Sir Alfred Wills in his admirable book “Wills’ Circumstantial Evidence” (Chapter VI) lays down the following rules specially to be observed in the case of circumstantial evidence: (1) the facts alleged as the basis of any legal inference must be clearly proved and beyond reasonable doubt connected with the factum probandum; (2) the burden of proof is always on the party who asserts the existence of any fact, which infers legal accountability; (3) in all cases, whether of direct or circumstantial evidence the best evidence must be adduced which the nature of the case admits; (4) in order to justify the inference of guilt, the inculpatory facts must be incompatible with the innocence of the accused and incapable of explanation, upon any other reasonable hypothesis than that of his guilt, (5) if there be any reasonable doubt of the guilt of the accused, he is entitled of the right to be acquitted”.
11. There is no doubt that conviction can be based solely on circumstantial evidence but it should be tested by the touch-stone of law relating to circumstantial evidence laid down by the this Court as far back as in 1952.
12. In Hanumant Govind Nargundkar and Anr. V. State of Madhya Pradesh, (AIR 1952 SC 343), wherein it was observed thus:
“It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should be in the first instance be fully established and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused.”
13. A reference may be made to a later decision in Sharad Birdhichand Sarda v. State of Maharashtra, (AIR 1984 SC 1622). Therein, while dealing with circumstantial evidence, it has been held that onus was on the prosecution to prove that the chain is complete and the infirmity of lacuna in prosecution cannot be cured by false defence or plea. The conditions precedent in the words of this Court, before conviction could be based on circumstantial evidence, must be fully established. They are:
(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned ‘must’ or ‘should’ and not ‘may be’ established;
(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;
(3) the circumstances should be of a conclusive nature and tendency;
(4) they should exclude every possible hypothesis except the one to be proved; and
(5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
14. These aspects were highlighted in State of Rajasthan v. Raja Ram (2003 (8) SCC 180), State of Haryana v. Jagbir Singh and Anr. (2003 (11) SCC 261), Kusuma Ankama Rao v State of A.P. (Criminal Appeal No.185/2005 disposed of on 7.7.2008) and Manivel and Ors. v. State of Tami Nadu (Criminal Appeal No.473 of 2001 disposed of on 8.8.2008).
15. The evidence of PWs 1, 2, 4, 7, 8 and 14 clearly establish that the body was found in the matrimonial home of the deceased with injuries noticed by them which fit in with the evidence of the Autopsy Surgeon (PW-15). The evidence of PWs 2, 4, 7 and 8 throw considerable light on the controversy. The death took place within one year and four months of the marriage in the house of the accused persons and the dead body was found with injuries. At the relevant time the accused persons were absconding which is of considerable importance. The plea of alibi set up by the present appellant has been discarded because there was no material to substantiate such plea. The trial Court and the High Court have analysed this aspect in great detail. From the evidence of PWs 2, 4, 7 and 8 it is seen that the accused persons were absconding since the date of incident when the dead body of the deceased lay in her matrimonial home. PW-14 the Investigating Officer’s evidence was to that effect. The High Court has rightly noted that the conduct of the accused appellants before it had a striking feature in the absence of any reasonable explanation and is an inculpating circumstance against them. The injuries on the dead body were noticed by several witnesses e.g. PWs 1, 2, 4, 7 and 8. The autopsy examination on the dead body of the deceased revealed the following injuries:
1. Nail marks (illegible) in shape four in numbers over left side of the neck placed one below the other and extended laterally and other marks over the right side of the neck, aclymorsis over the front of the neck. On direction extravagation of the blood found in the muscles of the neck and
fractures of the (illegible) cartilage found.
2. Multiple abrasion and aclynorsis of the varying sizes are seen over the back and different parts of the body both appear and lower (illegible).
16. According to the doctor the death was due to asphyxia resulting from throttling which was ante mortem and homicidal in nature.
17. Above being the position we find no merit in this appeal which is accordingly dismissed.

………………………..…….J. (Dr. ARIJIT PASAYAT)
………………………………J.
(ASOK KUMAR GANGULY)
New Delhi, March 31, 2009

SANJAY DUTT vs. STATE OF MAHARASHTRA TR. CBI, BOMBAY dated 2009-03-31
http://legalapproach.net/case_details.php?jid=1413

IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRL.M.P. NOS. 4087, 5229, 5230,5237 & 5314 OF 2009
IN CRIMINAL APPEAL NO. 1060 OF 2007

SANJAY DUTT …PETITIONER/APPELLANT
VERSUS
STATE OF MAHARASHTRA …RESPONDENT
TR. CBI, BOMBAY

J U D G M E N T K.G. BALAKRISHNAN, CJI :

The petitioner herein, the 117th accused in Special Case No. 1/93 (Bombay Blast Case) before the Special Judge, TADA (Mumbai), was charged under various Sections of Terrorist and Disruptive Activities (Prevention) Act (TADA) such as Section 3(3), Section 5 and Section 6 and also for the offence under Section 3 and Section 7 read with Sections 25 (1A) and 25(1B) of the Arms Act, 1959. The petitioner was found guilty of offences punishable under Section 3 and Section 7 read with Sections 25(1A) and 25(1B) of the Arms Act and was sentenced to six years rigorous imprisonment. The petitioner has filed appeal against his conviction and sentence and that appeal is pending consideration before this Court. Pending consideration of that appeal, the petitioner was granted bail on 28.2.2007.
Crl,M.P. No. 4087 of 2009 has been filed by the petitioner under Section 389 of the Code of Criminal Procedure, 1973 (Cr.P.C.) praying that execution of the order of conviction and sentence be suspended pending final hearing of the appeal. In the petition it is stated that he belongs to a family which has been in long public service in the country and the petitioner is now desirous of contesting election to the House of People from Lucknow Parliament Constituency and in view of Section 8(3) of the Representation of People Act, 1951, he has incurred disqualification from contesting the election for becoming a member of either House of Parliament. Therefore, it is prayed that the conviction and sentence of the petitioner be suspended to enable him to contest the election.
We have heard Shri Harish N. Salve, learned senior counsel, appearing for the petitioner and Shri Gopal Subramanium, learned Additional Solicitor General of India, appearing for the Central Bureau of Investigation (CBI) opposing the petition. Some third parties have also filed intervention applications. These parties were given opportunity to address their arguments even though we have not allowed any of these intervention applications as it is a Criminal Miscellaneous Petition.
The learned counsel appearing for the petitioner drew our attention to the extracts of the judgment passed by the learned Special Judge and elaborately argued that the petitioner was not part of the criminal conspiracy charged against him. He has been acquitted by the Special Judge for the offence under Sections 3 and 5 of the TADA and no appeal has been filed against that by the State and the conviction is only under Sections 3 and 7 read with Sections 25(1A) and 25 (1B) of the Arms Act. It was argued that the conviction itself for the above offences are based on alleged confession made by the petitioner which was not strictly admissible under the law. It was also contended that the alleged possession of the weapon by the petitioner was much prior to the criminal conspiracy allegedly hatched by other accused. The learned counsel for the petitioner also drew our attention to the fact that though under Section 12 of the TADA the Designated Court, when trying any offence, was competent to try any other offence with which the accused may, under Cr.P.C., be charged at the same trial if the offence is connected with such other offence. It was argued that the finding of the Designated Court would show that offence, if any, allegedly found against the petitioner was not even connected with other offences for which other accused were charged and, in that event, Section 15 of the TADA itself would not be attracted and the confession allegedly made by the petitioner to the police officer was not admissible. The learned counsel further argued that some of the observations made by the Constitution Bench of this Court in Prakash Kumar vs. State of Gujarat, (2005) 2 SCC 409, require slight clarification. The learned counsel further pointed out that the petitioner has got fair chance of appeal filed by him being allowed and, if the conviction and sentence is not suspended, he would be seriously prejudiced. He placed reliance on the decisions of this Court in Navjot Singh Sidhu vs. State of Punjab & Anr, (2007) 2 SCC 574, and Rama Narang vs. Ramesh Narang, (1995) 2 SCC 513.
The learned Additional Solicitor General appearing for the CBI contended that the conviction and sentence could be suspended only in exceptional circumstances and the petitioner in this case is not entitled to any such relief in view of the serious crime allegedly committed by him. It was argued that under Section 8(3) of the Representation of People Act, 1951, any person who has been convicted of any offence and sentenced to imprisonment for not less than two years, except any offence referred to in sub-section (1) or sub-section (2), shall be disqualified from the date of such conviction and shall continue to be disqualified for a further period of six years since his release. Therefore, it is argued, when there is an express prohibition of law from contesting the election, the relief prayed for by the petitioner may not be accepted in the facts and circumstances of the present case.
We have carefully considered the contentions advanced by the petitioner. The petitioner has been convicted for serious offences. Of course, his conviction and sentence have been challenged before this Court in an appeal. Though our attention was drawn to the various findings recorded by the Special Judge and also the nature of evidence adduced by the prosecution, we do not propose to consider these facts at this stage as it may seriously prejudice either of the parties when the appeal filed by the petitioner is considered by this Court. The petitioner is a well-known cine artist and because of his contribution to art and cinema he has got large number of fans throughout the country and abroad. His father was also a well-known film actor and he was deeply involved in politics. At one point of time, petitioner’s father was Minister in the Union Cabinet. The petitioner is not a habitual criminal nor it has been brought to our notice that he had involved in any other criminal case. Despite all these favourable circumstances, we do not think that this is a fit case where conviction and sentence could be suspended so that the bar under Section 8(3) of the Representation of People Act, 1951 will not operate against the petitioner. Law prohibits any person who has been convicted of any offence and sentenced to imprisonment for not less than two years from contesting the election and such person shall be disqualified for a further period of six years since his release. In the face of such a provision, the power of the Court under Section 389 Cr.P.C. shall be exercised only under exceptional circumstances.
The learned counsel appearing for the petitioner has placed reliance on the decision of this Court in Navjot Singh Sidhu’s case (supra). But in that case, the petitioner was a sitting MP and he could have continued as an MP even after his conviction and sentence in view of Section 8(4) of the Representation of People Act, 1951. The petitioner in Navjot Singh Sidhu’s case (supra) resigned and expressed his desire to contest the election. In fact, that was a case where the trial court acquitted the petitioner and the High Court, in reversal, found the petitioner guilty. It was in those circumstances this Court granted stay of the order of conviction and sentence in that case.
In the present case, no such circumstances are in favour of the petitioner. In view of the serious offence for which he has been convicted by the Special Judge, we are not inclined to suspend the conviction and sentence awarded by the Special Judge in the present case. We make it clear that we do not express any opinion on the merit and, if any of the observations made in this order, even it has remote possibility to prejudice either parties, we state that the same is only made for the purpose of disposal of Cr.M.P. No. 4087 of 2009-application for suspension/stay of conviction.

In the result, Cr.M.P. Nos. 4087/2009, 5229/2009, 5230/2009, 5237/2009 and 5314/2009 are dismissed.

CJI
( K.G. BALAKRISHNAN)
…..………………………………J. ( P. SATHASIVAM )
…………………………………..J. ( R.M. LODHA )
NEW DELHI March 31, 2009

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