0

INDEX
TABLE OF CONTENTS

Sr. Act/Subject Page No. Remarks

(Round No.- / Start & Finish Date)
No.
1. The Constitution of India 1-10

2. The Indian Penal Code, 1860 11-30

3. The Indian Evidence Act, 1872 31-45

4. The Code of Criminal Procedure, 1973 46-62

5. The Code of Civil Procedure, 1908 63

6. The Hindu and Muslim Laws

7. The Law of Contract

8. The Specific Relief Act

9. The Limitation Act

10. The Arbitration and Conciliation Act

11. The Regaistration Act

12. The Sale of Goods Act

13. The Partnership Act

14. The Transfer of Property Act

15. The Delhi Rent Control Act

16. The Madhy Pradesh Accomodation Control Act, 1961

17. List of Reports of Law Commission

18. Important Report of Law Commission

19. Significant Judgements Of Supreme Court Of India in

2012
Significant Judgements Of Supreme Court Of India in
2013
Significant Judgements Of Supreme Court Of India in
2014
Significant Judgements Of Supreme Court Of India in
2015
Significant Judgements Of Supreme Court Of India in
2016

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 1

THE CONSTITUTION OF INDIA

LIST OF LANDMARK CASES/IMPORTANT NOTES ON IMPORTANT TOPICS

Sr. Aritcles/Topics Related Cases

No. (Definitions etc.)

PREAMBLE Constitution of India :

WE, THE PEOPLE OF INDIA, having solemnly resolved to List of Articles (1-395) and Parts (1-22)
constitute India into a SOVEREIGN, SOCIALIST,
SECULAR, DEMOCRATIC, REPUBLIC and to secure to all
its citizens: At present there are 448 Articles in 25 parts, 12 schedules, 5 appendices and 98 amendments in the Constitution of India, as compared
to when it was written it had 395 Articles in 22 parts and 8 schedules at the time of commencement.
JUSTICE, social, economic and political;

LIBERTY of thought, expression, belief, faith and Additional articles and parts are inserted later through various amendments.
worship;

EQUALITY of status and of opportunity; and to promote

among them all Easy/Shortcut Tricks to remember Parts of Constitution of India

FRATERNITY assuring the dignity of the individual and

the unity and integrity of the nation; 1. U Can Fire Directly From US Using Powerful Medium Sized Rifle
2. U Can Fly Direct From US to Uttar Pradesh to Meet Shree Ram
IN OUR CONSTITUENT ASSEMBLY this twenty sixth day
of November 1949 , do HEREBY ADOPT, ENACT AND
3. U Can Fly Delhi From US Using Prime Minister Service Receipt
GIVE TO OURSELVES THIS CONSTITUTION.

Part Articles Area Short Cut- Short Cut-

I II
I 1-4 Union U U
II Citizenship Can Can

III Fundamental Rights Fire Fly

IV D.P.S.P. Directly Directly

IV-A Fundamental Duties From From

V Union Govt. United United

VI States States States

VII (Repealed)

VIII Union Territory Using Uttar

IX Panchayats Powerful Pradesh

IX-A Municipalities Medium Meet

X Scheduled & Tribal Area Sized Shri

XI Relations b/w Union & States Rifle Ram

FTSTESO :
1. Father Takes Son To Every Single Occasion.
2. Fruits Tastes Sweet To Eat So On
3. Fairy Tales Stories Taught Easily by Some One
4. Finance To Serve The Elected Servants Officially

Part Articles Area Short Cut-I Short Cut-

II
XII Finance Father U

XIII Trade & Commerce Takes Can

XIV Service under U & S Son Fly

XIV-A Tribunals To Directly

XV Election Every From

XVI Special Provisions Single United

XVII Official Language Occassion States

EMATS :
1. Every Man Attached To his Son/Spouse
2. Eat maggi and tomato sauce

Part Articles Area Short Cut-I Short Cut-

II
XVIII Emergency Provisions Every Eat

XIX Miscellaneous Man Maggi

XX Constitutional Amendment Attached And

XXI Temporary To Tomato

XXII Short Title Son/Spouse Sauce

PART I : THE UNION AND ITS TERRITORY

1 Name and territory of the Union. 1) State of Madras Vs. Champakam Dorairajan (AIR 1951 SC 226)
{State of Madras had reserved certain seats in educational institutions for
2 Admission or establishment of new States. non-brahmin students. The Hon’ble Apex Court held that reservation of
2A [Repealed.] seats for non brabmin students is unconstitutional as it is against equality
3 Formation of new States and alteration of areas, clause provided in Ariticle 14 and 15.)
boundaries or names of existing States.

4 Laws made under articles 2 and 3 to provide for the

amendment of the First and the Fourth Schedules and Note: This judgment paved the way for the anactment of clause (4) to
supplemental, incidental and consequential matters. Article 15 which says that the State can make special provision for the
advancement of any socially and educationally backword classes of citizens
PART II: CITIZENSHIP
5 Citizenship at the commencement of the Constitution. or for the Scheduled castes and scheduled tribes.
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6 Rights of citizenship of certain persons who have

migrated to India from Pakistan.

7 Rights of citizenship of certain migrants to Pakistan.

....It has to be mentioned here that though the original reservation of the Madras Government
was in favour of all the nonbrahmin castes, the only persons who could take advantage of that
reservation were the persons belonging to the upper castes of the non-brahmin community,
8 Rights of citizenship of certain persons of Indian origin
residing outside India.
mostly the landed gentry. The lower castes continued to remain where they were. Though the
amendment was aimed at removing the setback caused by the judgment of the Hon’ble Supreme
Court striking down the reservation in favour of all the non brahmin communities what it really
9 Persons voluntarily acquiring citizenship of a foreign
State not to be citizens.
did was to go further and excluded from the reservation all the advanced communities-brahmin or
non brahmin and confined the reservation to the socially and educationally backword classes and
not to all the non-brahimin communities. (0. Chinnappa Reddy - in “The Court and the
10 Continuance of the rights of citizenship.
Constitution: Summits and Shallows”.)
11 Parliament to regulate the right of citizenship by law.

2) Ram Prasad Vs. D.K. Vijay (AIR 1999 SC 3563)

PART III : FUNDAMENTAL RIGHTS
General {It was held that a promote belonging to general non-reserved class
12 Definition.
promoted later than a Scheduled Caste candidate originally junior to him
13 Laws inconsistent with or in derogation of the
fundamental rights. but promoted earlier because of the roster point system regains his
Right to Equality
seniority over the Scheduled caste promote in the promotional post. }
Note: To remove the effect of above mention judgment the word
14 Equality before law.
“consequential seniority” was added in Article 16 (4A).
15 Prohibition of discrimination on grounds of religion,
race, caste, sex or place of birth.

16 Equality of opportunity in matters of public Article 21

employment.

17 Abolition of Untouchability.
3) AK. Gopalan Vs. State of Madras (AIR 1950 SC 27),
18 Abolition of titles.
6 Judges Bench, Consisting of M.H. Kania, C.J.I., Saiyid Fazl Ali, M. Patanjali
Right to Freedom
Sastri, Mehr Chand Mahajan, B. K. Mukherjea and S. R. Das, JJ.) {Majority
19 Protection of certain rights regarding freedom of
speech, etc.
of the Judges held that in Article 21 the word ‘law’ had been used in the
sense of state made law and not as an equivalent to law in the abstract or
20 Protection in respect of conviction for offences.
general sense embodying the pdnciples of natural justice. Therefore, the
21 Protection of life and personal liberty.
term ‘procedure established by law’ in Article 21 meant procedure
22 Protection against arrest and detention in certain
cases.
established by laws made by Parliament or State legislatures. The majority
Right against Exploitation
held that ‘procedure established by law’ in Article 21 is not equivalent to
‘Due process of law’ as provided in the U.S. Constitution.
23 Prohibition of traffic in human beings and forced
labour.

24 Prohibition of employment of children in factories, etc. Fazal Ali, J., was the only dissenting judge in this case and held that law
Right to Freedom of Religion enacted by the legislature has to comply with the principles of natural
25 Freedom of conscience and free profession, practice justice....}
and propagation of religion.

26 Freedom to manage religious affairs.

4) Indira Nehru Gandhi Vs. Raj Narain (AIR 1975 SC 2290)
27 Freedom as to payment of taxes for promotion of any
particular religion.
{A.N. Ray CJ, observed, “Our Constitution has not adopted the due process
28 Freedom as to attendance at religious instruction or
clause of the American Constitution. Reasonableness of legislative measures
religious worship in certain educational institutions. is unknown to the Constitution. The Constitution has denied due process as
Cultural and Educational Rights test of invalidity of law.}
29 Protection of interests of minorities.
30 Right of minorities to establish and administer
educational institutions.
31 [Repealed.] 5) Maneka Gandhi v Union of India (AIR 1978 SC 597)
Saving of Certain Laws
31A Saving of Laws providing for acquisition of estates, 7 Judge Bench, M H Beg CJI, Y. Vs. Chandrachud, P. N. Bhagwati, Vs. R.
etc.
31B Validation of certain Acts and Regulations.
Krishna Iyer, N. L. Untwalia, S. Murtaza Fazl Ali and PS Kailasam, JJ) {The
31C Saving of laws giving effect to certain directive court held that procedure established by law for the deprivation of life and
principles.
31D [Repealed.] personal liberty under Article 21 must be just, fair and reasonable)
Right to Constitutional Remedies
32 Remedies for enforcement of rights conferred by this
Part.
32A [Repealed.] The result of Maneka Gandhi case on the scope of Article 21
33 Power of Parliament to modify the rights conferred by
this Part in their application to Forces, etc.
34 Restriction on rights conferred by this Part while
martial law is in force in any area. 6) Sunil Batra Vs Delhi Administration (AIR 1978 SC 1675)
35 Legislation to give effect to the provisions of this Part.
{Krishna Iyer, J., “true our Constitution has no due process clause as
PART IV : DIRECTIVE PRINCIPLES OF STATE
American Constitution but after Cooper and Maneka Gandhi the
POLICY coiuibquence is the same.”)
36 Definition.
37 Application of the principles contained in this Part.
38 State to secure a social order for the promotion of
welfare of the people. 7) Bachhan Singh Vs State of Punjab (A1R 1980 SC 898)
39 Certain principles of policy to be followed by the
State. {A Constitutional Bench through Sarkaria, J stated that after Maneka
39A Equal justice and free legal aid.
40 Organisation of village panchayats. Gandhi’s case, Article 21 must read as follows: “No person shall be deprived
41 Right to work, to education and to public assistance in
certain cases.
of his life or personal liberty except according to fair, just and reasonable
42 Provision for just and humane conditions of work and
maternity relief.
procedure established by valid law.”}
43 Living wage, etc., for workers.
43A Participation of workers in management of
industries.
44 Uniform civil code for the citizens.
8) Ranjan Dwivedi Vs. Union of India (AIR 1983 SC 624) {the court
45 Provision for free and compulsory education for said that it is difficult to hold that the substance of the American doctrine of
children.
46 Promotion of educational and economic interests of due process has not been introduced in the conservative text of Article 21
Scheduled Castes, Scheduled Tribes and other weaker
sections. of the Constitution.
47 Duty of the State to raise the level of nutrition and
the standard of living and to improve public health.
48 Organisation of agriculture and animal husbandry.
48A Protection and improvement of environment and Two decisions announced by the Hon’ble Supreme Court of India in May
safeguarding of forests and wild
49 Protection of monuments and places and objects of
life.
2010 strikingly indicated that the American doctrine of ‘due process’ has
national
50 Separation of judiciary from
importance.
executive.
firmly became a part of Constitutional law despite the Constitution framers’
51 Promotion of international peace and security. contrary intentions. in the first of the two cases, decided on May 5, Selvi Vs.
State of Karnataka (AIR 2010 SC 1974), the court considered the
PART IVA : FUNDAMENTAL DUTIES
51A Fundamental duties.
constitutionality of the investigative narco-analysis technique, holding it
permissible only when the subject consents to its use. In the second case
PART V : THE UNION decided on May II, Union of India Vs. R. Gandhi, a Constitution bench
CHAPTER I : THE EXECUTIVE
unanimously held that certain provisions of the Company (Second
Amendment) Act, 2002. Establishing the National Company. Law Tribunal
The President and Vice-President
52 The President of India. and Appellate Tribunal, suffered from unconstitutional defects.
53 Executive power of the Union.
54 Election of President.
55 Manner of election of President.

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56 Term of office of President.

57 Eligibility for re-election. In Selvi case KG. Balakrishnan, Ci., held that substantive due process is
58
59
Qualifications
Conditions
for
of
election as
President’s
President.
office.
now a guarantee under the Constitution. This declaration is a remarkable
60 Oath or affirmation by the President. rejection of the framers’ decision to delete the due process clause.
61 Procedure for impeachment of the President.
62 Time of holding election to fill vacancy in the office of
President and the term of office of person elected to fill
casual vacancy. In R. Vs. Gandhi, the court held that certain provisions of the Company
63 The Vice-President of India.
64 The Vice-President to be ex officio Chairman of the (Second Amendment) Act, 2002. Establishing the National Company Law
Council of States.
65 The Vice-President to act as President or to discharge Tribunal and Appellate Tribunal, suffered from unconstitutional
his functions during casual vacancies in the office, or
during the absence, of President. defecta;jlowevet, the Indian Constitution does not strictly or teflually permit
66
67 Term
Election
of office
of
of
Vice-President.
Vice-President.
courts to stnke ciown a piece of legislation merel bbealse its provisions are
68 Time of holding election to fill vacancy in the office of unfair or arbitrary in the absence of 4yplation of one of its enumerated
Vice-President and the term of office of person elected to
fill casual vacancy. provisions To overcome this difficulty the court in this case held that
69 Oath or affirmation by the Vice-President.
70 Discharge of President’s functions in other pnnciple such as ipdependence of the judiciary are part of the essence of
contingencies.
71 Matters relating to, or connected with, the election of the nght to’ juality and consequently must be enforced Formerly
a President or
72 Power of President to grant pardons, etc., and to
Vice-President. pnnczples’such as independence of the judiciary rule of law and separation
suspend, remit or commute sentences in certain cases. of powers’ would usually be applied using the basic structure theory only to
73 Extent of executive power of the Union.
Council of Ministers constitutional amendments [ R Gandhi opinion the court has remarkably
74 Council of Ministers to aid and advise President.
75 Other provisions as to Ministers. applied loose constitutional pnnciptes rooted in its understanthng” of
The
76
Attorney-General
Attorney-General
for
for
India
India.
fairness or constitutional basic structure to ordinary law. [Abhinav
Conduct of Government
77 Conduct of business of the Government of India.
Business Chandrachud, The Hindu, May 24, 2011]
78 Duties of Prime Minister as respects the furnishing of
information to the President, etc.
Passive Euthanasia
CHAPTER II : PARLIAMENT
General
79 Constitution of Parliament. 9) Aruna Ramchandra Shanbaug Vs. Union of India [AIR 2011 SC
80 Composition of the Council of States.
81 Composition of the House of the People. 1280, (2011) 4 SCC 454] {Facts of the case: Aruna Ramchandra
82 Readjustment after each census.
83 Duration of Houses of Parliament. Shahbaigwas a staff nurse working in King Edword Memorial fltspital, Pare),
84 Qualification for membership of Parliament.
85 Sessions of Parliament, prorogation and dissolution.
Mumbai. On the evening of 27th November, 1973, she was attacked by a
86 Right of President to address and send messages to
Houses.
sweeper in the hospital who wrapped a dog chain around her neck and
87 Special address by the President. yanked her back with it. He tried to rape her but finding that she was
88 Rights of Ministers and Attorney-General as respects
Houses. menstruating, he sodomized her. To immobilize during this act he twisted
Officers of Parliament
89 The Chairman and Deputy Chairman of the Council of the chain around her neck. The next day on 2S November, 1973, at 7:45
States.
90 Vacation and resignation of, and removal from, the
AM, a cleaner found her lying on the floor with blood all over in an
office of Deputy
91 Power of the Deputy Chairman or other person to
Chairman. unconscious condition. It is alleged that due to strangulation by the dog
perform the duties of the office of, or to act as, chain the supply of oxygen to the brain stopped and brain got damaged. It
Chairman.
92 The Chairman or the Deputy Chairman not to preside is alleged that the Neurologist in the hospital found that she had planters’
while a resolution for his removal from office is under
consideration. extensor, which indicates damage to the cortex or some other part of the
93 The Speaker and Deputy Speaker of the House of the
People .
brain. She also had brain stem contusion injury with associated cervical cord
94 Vacation and resignation of, and removal from, the injury. At the time of this petition she was 60 years old. It is alleged that
offices of Speaker and Deputy Speaker.
95 Power of the Deputy Speaker or other person to she is in persistent vegetative state and virtually a dead person and has no
perform the duties of the office of, or to act as, Speaker.
96 The Speaker or the Deputy Speaker not to preside state of awareness, and her brain is virtually dead. This writ petition is flied
while a resolution for his removal from office is under
consideration. under Article 32 of the Constitution, and has been filed on behalf of the
97 Salaries and allowances of the Chairman and Deputy
Chairman and the Speaker and Deputy Speaker.
petitioner Aruna Ramchandra Shanbaug by one Ms. Pinky Virani of Mumbai,
98 Secretariat of Parliament. claiming to be a next friend.
Conduct of Business
99 Oath or affirmation by members.
100 Voting in Houses, power of Houses to act
notwithstanding vacancies and quorum. {Markanday Katju and Gyan Sudha Misbra, 11., speaking through
Disqualifications of Members
101 Vacation of seats. Markanday Katju, J., the court held that if a person is in permanent
102 Disqualifications for membership.
103 Decision on questions as to disqualifications of vegetative state (PVS) or in coma or suffering from ally other disorder which
members.
104 Penalty for sitting and voting before making oath or
is incurable then in certain cases after following prescribed steps the court
affirmation under article 99 or when not qualified or
when disqualified.
may allow withdrawal of life support system of the patient. However, it is
Powers, Privileges and Immunities of Parliament and its important to note that the court has allowed only passive euthanasia i.e.
Members
105 Powers, privileges, etc., of the Houses of Parliament withdrawal of medical facilities from the person who is incapable of giving
and of the members and committees thereof.
106 Salaries and allowances of members. consent and whose disorder is incurable. He cannot be killed by any dvert
Legislative
107 Provisions as to introduction and passing of Bills.
Procedure
act like poison injection etc. Active euthanasia is still an offence.
108 Joint sitting of both Houses in certain cases.
109 Special procedure in respect of Money Bills.
110
111
Definition
Assent
of “Money
to
Bills”.
Bills.
Procedure to be adopted by the Hon’ble High Court when such an
Procedure
112 Annual
in Financial
financial
Matters
statement.
application is filed
113 Procedure in Parliament with respect to estimates.
114 Appropriation Bills.
115 Supplementary, additional or excess grants.
116 Votes on account, votes of credit and exceptional
a) When such an application is filed, the Chief Justice of the Hon’ble High
grants. Court should forthwith constitute a bench of at least two judges who should
117 Special provisions as to financial Bills.
Procedure Generally decide to grant approval or not. Before doing so the Bench should seek the
118 Rules of procedure.
119 Regulation by law of procedure in Parliament in opinion of a committee of three reputed doctors to be nominated by the
relation
120 Language
to
to be
financial
used in
business.
Parliament.
bench after consulting such medical authorities/medical practitioners as it
121 Restriction on discussion in
122 Courts not to inquire into proceedings of Parliament.
Parliament. may deem fit. Preferably one of the three doctors should be a neurologist,
one should be psychiatrist and the third a physician.
CHAPTER III : LEGISLATIVE POWERS OF THE
PRESIDENT
123 Power of President to promulgate Ordinances during b) The committee of three doctors nominated by the bench should carefully
recess of Parliament.
examine The patient and also consult the record of the patient as well as
CHAPTER IV : THE UNION JUDICIARY
taking the views of the hospital staff and submit its report to the Hon’ble
124 Establishment and constitution of Supreme Court. High Court.
125 Salaries, etc., of Judges.
126 Appointment of acting Chief Justice.
127 Appointment of ad hoc judges.
128 Attendance of retired Judges at sittings of the c) Simultaneously with appointing the committee of doctors, the Hon’ble
Hon’ble Supreme Court.
129 Supreme Court to be a court of record. High Court bench shall also issue notice to the state and close relatives e g
130 Seat of Supreme Court.
131 Original jurisdiction of the Hon’ble Supreme Court. parents spouse brothers/sisters etc of the patient and in their absence
131A [Repealed.]
132 Appellate jurisdiction of Supreme Court in appeals
his/her next friend and supply a copy of the report of the doctor s
from High Courts in certain cases. committee to them as soon as it is available After hearing them the 1-ugh
133 Appellate jurisdiction of Supreme Court in appeals
from High Courts in regard to Civil matters. Court bench should give its verdict The above procedure should be followed
134 Appellate jurisdiction of Supreme Court in regard to
criminal matters. all over India until Parliament makes legislation on this subject.
134A Certificate for appeal to the Hon’ble Supreme
Court.
135 Jurisdiction and powers of the Federal Court under
existing law to be exercisable by the Hon’ble Supreme d) The Hon’ble High Court should give its decision speedily at the earliest,
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Court.
136 Special leave to appeal by the Hon’ble Supreme since delay in the matter may result in causing great mental agony to the
Court.
137 Review of judgments or orders by the Hon’ble
relatives and persons close to the patient.
Supreme Court.
138 Enlargement of the jurisdiction of the Hon’ble
Supreme
139 Conferment on the Hon’ble Supreme Court of
Court.
e) The Hon’ble High Court should give its verdict assigning specific reasons
powers to issue certain writs. in accordance with the principle of best interest of the patient as laid down
139A Transfer of certain cases.
140 Ancillary powers of Supreme Court. by the House of Lords in Airedale’s case. The views of the near relatives
141 Law declared by Supreme Court to be binding on all
courts. and committee of doctors should be given due weight by the Hon’ble High
142 Enforcement of decrees and orders of Supreme
Court and orders as to discovery, etc. Court before pronouncing a final verdict which shall not be summary in
143 Power of President to consult Supreme Court.
144 Civil and judicial authorities to act in aid of the
nature.
Hon’ble Supreme Court.
144A [Repealed.]
145 Rules of Court,
146 Officers and servants and the expenses of the
etc. Secularism, Articles 25, 26, 27 and 28
Hon’ble Supreme Court.
147 Interpretation.
10) All these several Articles of the Constitution bear upon the Secularist
CHAPTER V : COMPTROLLER AND AUDITOR- goal which the people of India have set for themselves. It is seen that the
GENERAL OF INDIA
148 Comptroller and Auditor-General of India. Indian Constitutional goal on secularism is much more comprehensive than
149 Duties and powers of the Comptroller and Auditor-
General.
a mere negative secularism which means not being against religion or any
150 Form of accounts of the Union and of the States.
151 Audit reports.
particular religion. it is a secularism which is not supportive of any religion
but supportive of all religions. A negative secularism, if it may be so
PART VI : THE STATES characterized, is precipitous and potentially productive of great mischief.
CHAPTER I : GENERAL
152 Definition.
CHAPTER II : THE EXECUTIVE
The Governor Constitutional secularism is not supportive of religion at all but it has
153
154
Governors
Executive power
of
of
States.
State.
adopted what may be termed as a permissive attitude towards religion out
155
156 Term
Appointment
of office
of
of
Governor.
Governor.
of respect for individual conscience and dignity. Therefore, even while
157 Qualifications for appointment as Governor. recognizing the right to profess and practice religion etc., it has excluded all
158 Conditions of Governor’s office
159 Oath or affirmation by the Governor. secular activity from the purview of religion and also practices which are
160 Discharge of the functions of the Governor in certain
contingencies. repugnant to public order, morality, and health and to human rights and
161 Power of Governor to grant pardons, etc., and to
suspend, remit or commute sentences in certain cases.
dignity as embodied in the Fundamental Rights guaranteed by the
162
Council
Extent of executive
of
power of State.
Ministers
Constitution. The subjection to public order, morality and health is repeated
163 Council of Ministers to aid and advise Governor. in Article 26. The equality clauses in the chapter on Fundamental Rights are
164 Other provisions as to Ministers.
The Advocate-General for the State mandates to the state to eliminate the inequalities mentioned in the
165 Advocate-General for the State.
Conduct of Government Business Directive Principles of State Policy. Development of scientific temper,
166 Conduct of business of the Government of a State.
167 Duties of Chief Minister as respects the furnishing of
humanism, and spirit of enquiry and promotion of harmony and spirit of
information to Governor, etc.
CHAPTER III : THE STATE LEGISLATURE
brotherhood amongst all people transcending religious or sactional
General diversities emphasize the positive and dynamic nature and character of the
168 Constitution of Legislatures in States.
169 Abolition or creation of Legislative Councils in States. Indian Constitutional secularism. [Page 156-157, The Court and the
170 Composition of the Legislative Assemblies.
171 Composition of the Legislative Councils. Constitution of India Summits and Shallow; By O. Chmnappa Reddy Oxford
172 Duration of State
173 Qualification for membership of the State
Legislatures.
University Press, 2008]
Legislature.
174 Sessions of the State Legislature, prorogation and
dissolution.
175 Right of Governor to address and send messages to
Definition of minority
the House or Houses. 11). Bal Patil Vs. Union of lndia [(2005) 6 SCC 690] {Minority as understood
176 Special address by the Governor.
177 Rights of Ministers and Advocate-General as respects from the Constitutional scheme signifies an identifiabl group of people or
the Houses.
Officers of the State Legislature community who were seen as deserving protection from likely deprivation of
178 The Speaker and Deputy Speaker of the Legislative
Assembly. their religious cultural and educational rights by other communities who
179 Vacation and resignation of, and removal from, the
offices of Speaker and Deputy Speaker.
happen to be in majority and likely to gain political power in a democratic
180 Power of the Deputy Speaker or other person to form of government based on election.}
perform the duties of the office of, or to act as, Speaker.
181 The Speaker or the Deputy Speaker not to preside
while a resolution for his removal from office is under
consideration. Amendment of the Constitution
182 The Chairman and Deputy Chairman of the
Legislative Council. 12). Sankari Prasad Vs. Union of India (AIR 1951 Sc 455) {The
183 Vacation and resignation of, and removal from, the
offices of Chairman and Deputy Chairman. Hon’ble Supreme Court held that the power to amend the Constitution
184 Power of the Deputy Chairman or other person to
perform the duties of the office of, or to act as,
including the fundamental rights is contained in the Article 368 and that the
Chairman.
185 The Chairman or the Deputy Chairman not to
word ‘law’ in Article 13 includes only an ordinary law and does not include
preside while a resolution for his removal from office is constitutional amendment which is made in exercise of constituent power.}
under consideration.
186 Salaries and allowances of the Speaker and Deputy
Speaker and the Chairman and Deputy Chairman.
187 Secretariat of State Legislature. 13). Sajjan Singh v State of Rajasthan (AIR 1965 SC 845 - 5 Judge
Conduct of Business
188 Oath or affirmation by members. Bench... B GAJENDRAGADKAR, C.J.I., K. N. WANCHOO, M. HIDAYATULLAH,
189 Voting in Houses, power of Houses to act
notwithstanding vacancies and quorum. RAGI-IUBAR DAYAL AND J. R. MUDHOLKAR, ii.) {The Court with the tune of
Disqualifications
190 Vacation
of
of
Members
seats.
the judgment in Sankari Prasad held that amendment of the Constitution
191 Disqualifications for
192 Decision on questions as to disqualifications of
membership. means amendment of any part of the Constitution including fundamental
members. rights.)
193 Penalty for sitting and voting before making oath or
affirmation under article 188 or when not qualified or
when disqualified.
Powers, privileges and immunities of State 14). L.C. Golak Nath and others Vs. State of Punjab (AIR 1967 SC
Legislatures and their Members
194 Powers, privileges, etc., of the Houses of 1643, 11 Judge Bench, K. SUBBA RAO, CJI., K. N. WANCHOO, M.
Legislatures and of the members and committees
thereof. HIDAYATULLAH, J. C. SHAH, S. M. SIKRI, R. S. BACHAWAT, Vs.
195 Salaries
Legislative
and allowances of members.
Procedure
RAMASWAMI, I. M. SHELAT, Vs. BHARGAVA, G. K. MInER AND C. A.
196 Provisions as to introduction and passing of Bills.
197 Restriction on powers of Legislative Council as to
VAIDIALINGAM, JJ.) {In this case, the Hon’ble Supreme Court by a majority
Bills other than Money Bills. of 6 to 5 overruled its earlier decisions ifl Sankari Prasad and Sajjan Singh
198 Special procedure in respect of Money Bills.
199 Definition of “Money Bills”. cases and held that Parliament cannot amend the Fundamental Rights. The
200 Assent to Bills.
201 Bills reserved for consideration. court rejected the argument that power to amend the Constitution was a
Procedure
202 Annual
in Financial
financial
Matters
statement.
sovereign poser and observed that amendment is a legislative process and
203 Procedure in Legislature with respect to estimates. Article 368 lays down merely the procedure for amendment of the
204 Appropriation Bills.
205 Supplementary, additional or excess grants. Constitution. An amendment is a ‘law’ within the meaning of Article 13(2)
206 Votes on account, votes of credit and exceptional
grants. and therefore, if it violates any of the fundamental rights it may be declared
207 Special provisions as to financial Bills.
Procedure Generally void.)
208 Rules of procedure.
209 Regulation by law of procedure in the Legislature of
the State in relation to financial business.
210 Language to be used in the Legislature. 15). Kesavanand Bharti Vs. State of Kerela (AIR 1973 SC 1461, 13
211 Restriction on discussion in the Legislature.
212 Courts not to inquire into proceedings of the
Judge Bench, S. M. SIKRI, CJI., J. M. SHELAT, K. S. HEGDE, A. N. GROVER,
Legislature. A. N. RAY, P. JAGANMOHAN RFDDY, D. G. PALEKAR, H. R.KHANNA, K. K.
CHAPTER IV : LEGISLATIVE POWER OF THE
GOVERNOR MATHEW, M. H, BEG, S. N.DWIVEDI, A. K. MUKHERJEA AND Y. Vs.
213 Power of Governor to promulgate Ordinances during
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recess of Legislature.
CHAPTER V : THE HON’BLE HIGH COURTS IN THE CHANDRACHUD, JJ.) . . . Majority View : As per S M SIKARI, CJI, J.M.
STATES
214 High Courts for States.
SHELAT, K S HEGDE, A N GROVER, P JAGANMOHAN REDDY, A K
215 High Courts to be courts of record. MUKHERJEA and H R KHANNA, JJ. The views of the majority could be
216 Constitution of High Courts.
217 Appointment and conditions of the office of a Judge summarized as follows:
of a High Court.
218 Application of certain provisions relating to Supreme * The Golak Nath case was overruled and the majority held that Article 368
Court to High Courts.
219 Oath or affirmation by Judges of High Courts. even before 24th Amendment contained the power as well as procedure of
220 Restriction on practice after being a permanent
Judge.
amendment. Hence, limitations upon the amending power must be found
221 Salaries, etc., of Judges. from Article 368 itself,.
222 Transfer of a Judge from one High Court to another.
223 Appointment of acting Chief Justice.
224 Appointment of additional and acting Judges.
224A Appointment of retired Judges at sittings of High * The Parliament has wide power to amend any part of the Contstution
Courts.
225 Jurisdiction of existing High Courts. including fundamental rights but it does not extend to amend any basic
226 Power of High Courts to issue certain writs.
226A [Repealed..] structure of the Constitution. There are implied and inherent limitations on
227 Power of superintendence over all courts by the
Hon’ble High Court. the power of amendment under Article 368.}
228 Transfer of certain cases to High Court.
228A [Repealed.]
229 Officers and servants and the expenses of High
Courts.
Basic Features of the Constitution
230 Extension of jurisdiction of High Courts to Union
territories.
231 Establishment of a common High Court for two or
more States.
16) In Kesavananda Case Chief Justice Sikri enumerated following as the
CHAPTER VI : SUBORDINATE COURTS
233 Appointment of district judges.
basic structure of the Constitution
233A Validation of appointments of, and judgments, etc., * Supremacy of the Constitution
delivered by, certain district judges.
234 Recruitment of persons other than district judges to * Republic and Democratic form of Government
the judicial service.
235 Control over subordinate courts. * Secular character of the Constitution
236
237 Application of the provisions of this Chapter to
Interpretation.
* Separation of powers between legislature, executive & judiciary
certain class or classes of magistrates.
PART VII : THE STATES IN PART B OF THE FIRST
* Federal character of the Constitution
SCHEDULE
238 [Repealed.]
PART VIII : THE UNION TERRITORIES
239 Administration of Union territories.
> Shelat and Grover, JJ., added following as following as basic structure:
239A Creation of local Legislatures or Council of Ministers *Supremacy of the Constitution
or both for certain Union territories.
239A Special provisions with respect to Delhi. *Republic & Democratic form of Govt. and sovereignty of country.
239AA Provision in case of failure of constitutional
machinery. * Secular and federal character of the Constitution
239AB Power of administrator to promulgate Ordinances
during recess of Legislature.
* Demarcation of power between legislature, executive & judiciary
240 Power of President to make regulations for certain
Union territories.
* The dignity of the individual secured by various freedoms and basic rights
241 High Courts for Union territories. in Part III and the mandate to build a welfare State contained in Part IV.
242 [Repealed.]
PART IX : THE PANCHAYATS * The unity and integrity of the nation.
243 Definitions.
243A Gram Sabha.
243B Constitution of Panchayats.
243C Composition of Panchayats. > Hegde and Mukherjee, JJ., mentioned the sovereignty of India, the
243D Reservation of seats.
243E Duration of Panchayats, etc. democratic character of out polity, the unity of the country, the essential
243F Disqualifications for
243G Powers, authority and responsibilities of
membership.
features of individual freedoms secured to the citizens, the mandate to build
Panchayats. a welfare state and egalitarian society as illustrative and not exhaustive of
243H Powers to impose taxes by, and Funds of, the
Panchayats. the basic elements of the
243-I Constitution of Finance Commission to review
financial position. Constitution.
243J Audit of accounts of Pachayats.
243K Elections to the Panchayats.
243L Application to Union territories.
243M Part not to apply to certain areas. > Illustrating the stntement that the basic structure of the Constitution
243N Continuance of existing laws and Panchayats.
243-O Bar to interference by courts in electoral matters. could not be altered, Khanna, J., said: “It would not be competent under
PART IXA : THE MUNICIPALITIES
243P Definitions.
the garb of Amendment, for instance, to change the democratic
243Q Constitution of Municipalities. government into dictatorship or hereditary monarchy nor would it be
243R Composition of Municipalities.
243S Constitution and composition of Wards permissible to abolish the Lok Sabha and Rajya Sabha. The secular
Committees, etc.
243T Reservation of seats. character of the state according to which the state shall not discriminate
243U
243V
Duration
Disqualifications
of Municipalities,
for membership.
etc.
against any citizen on the ground of religion cannot likewise be done away
243W Powers, authority and responsibilities of
Municipalities, etc.
with.
243X. Power to impose taxes by, and Funds of, the
Municipalities.
243 Finance Commission. It is worthy to note here that Chief Justice Sikri and Justices Shelat, Grover and
243Z Audit of accounts of Municipalities.
243ZA Elections to the Municipalities. Khanna had declared secularism as a basic feature of the Constitution even before
243ZB Application to
243ZC Part not to apply to certain areas.
Union territories. the forty second amendment by which the word ‘ secular’ was introduced into the
243ZD Committee for district planning. preamble of the Constitution. That the secular nature of the Constitution is one of the
243ZE Committee for Metropolitan planning.
243ZF Continuance of existing laws and Municipalities. basic features has subsequently been emphasised in innumerable cases. it is also to
243ZG Bar to interference by Courts in electoral matters. be noticed that Justices Shelat, Grover and Hegde held that the mandate to build a
PART X : THE SCHEDULED AND TRIBAL AREAS
244 Administration of Scheduled Areas and Tribal Areas. welfare state as provided in Part IV of the Constitution is also a basic feature of the
244A Formation of an autonomous State comprising
certain tribal areas in Assam and creation of local
Constitution.
Legislature or Council of Ministers or both therefor.
PART XI : RELATIONS BETWEEN THE UNION AND
THE STATES
CHAPTER I : LEGISLATIVE RELATIONS
17) Indira Nehru Gandhi v Raj Narain (AIR 1975 SC 2299) {The
Distribution of Legislative Powers Hon’ble Supreme Court struck down the constitutional amendment seeking
245 Extent of laws made by Parliament and by the
Legislatures of States. to adjudicate the election dispute of Indira Gandhi and validate her election.
246 Subject-matter of laws made by Parliament and by
the Legislatures of States. Justice Khanna said that the principle of free and fair election was an
247 Power of Parliament to provide for the establishment
of certain additional courts.
essential postulate of democracy which in turn was a part of the basic
248 Residuary powers of
249 Power of Parliament to legislate with respect to a
legislation. feature of the Constitution. Justice Mathew thought that the amendment
matter in the State List in the national interest. would damage or destroy an essential feature of democracy as established
250 Power of Parliament to legislate with respect to any
matter in the State List if a Proclamation of Emergency is by the Constitution, namely, the resolution of an election dispute in wrong
in operation.
251 Inconsistency between laws made by Parliament ascertainment of adjudicative facts and the application of relevant law by an
under articles 249 and 250 and laws made by the
Legislatures of States.
authority in the exercise of judicial power. Justice Chandrachud enumerated
252 Power of Parliament to legislate for two or more following as the basic features of the Constitution:
States by consent and adoption of such legislation by
any other State. * India is a sovereign democratic republic.
253 Legislation for giving effect to international
agreements. * Equality of status and opportunity shall be secured to all citizens.
254 Inconsistency between laws made by Parliament and
laws made by the Legislatures of States. * The state shall have no religion of its own and all persons shall be equally
255 Requirements as to recommendations and previous
sanctions to be regarded as matters of procedure only.
entitled to freedom of conscience and the right freely to profess, practice
CHAPTER II : ADMINISTRATIVE RELATIONS and propagate religion.
General
256 Obligation of States and the Union. * The nation shall be governed by a government of laws aad not of men.
257 Control of the Union over States in certain cases.
257A [Repealed.]
258 Power of the Union to confer powers, etc., on States
in certain cases. 18) In State of Rajasthan Vs. Union of India (AIR 1977 SC 1371),
258A Power of the States to entrust functions to the
Union. the court held that independence of the judiciary, judicial review, and
259
260 Jurisdiction of the Union in relation to territories
[Repealed.]
separation of powers were held to be basic features of the Constitution.
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outside
261 Public acts, records and judicial proceedings.
India.
This was reiterated in Subhash Sharma Vs. Union of India (AIR 1991 SC
Disputes relating to
262 Adjudication of disputes relating to waters of inter-
Waters
631).
State rivers or river valleys.
Co-ordination between States
263 Provisions with respect to an inter-State Council.
PART XII : FINANCE, PROPERTY, CONTRACTS
19) L. Chandra Kumar Vs. Union of india (AIR 1997 SC 1125), {A
AND SUITS Bench of seven judges presided over by Chief Justice Ahmadi held as
CHAPTER I : FINANCE
General follows: “The power of judicial review over legislative action vested in the
264 Interpretation.
265 Taxes not to be imposed save by authority of law. Hon’ble High Courts under Article 226 and in this court under Article 32 of
266 Consolidated Funds and public accounts of India and
of the States. the Constitution is an integral and essential feature of the Constitution,
267 Contingency
Distribution of Revenues between the Union and the
Fund. constituting part of its basic structure. Ordinarily therefore, the power of the
States Hon’ble High Courts and the Hon’ble Supreme Court to test the
268 Duties levied by the Union but collected and
appropriated by the State. Constitutional validity of legislation can never be ousted or excluded. We
269 Taxes levied and collected by the Union but assigned
to the States. also hold that the power vested in the Hon’ble High Courts to exercise
270 Taxes levied and distributed between the Union and
the States. judicial superintendence over the decisions of all Courts and Tribunals
271 Surcharge on certain duties and taxes for purposes
of the Union.
within their respective jurisdictions is also part of the Basic Structure of the
272 [Repealed.] Constitution.}
273 Grants in lieu of export duty on jute and jute
products.
274 Prior recommendation of President required to Bills
affecting taxation in which States are interested. 20) Minerva Mills Ltd Vs. Union of India (AIR 1973 SC 1461) {Held
275 Grants from the Union to certain States.
276 Taxes on professions, trades, callings and that limited amending power is itself a basic structure of the Constitution.)
employments.
277 Savings.
278 [Repealed.]
Important Cases in History on Constitution of India
279 Calculation of “net proceeds”, etc.
280 Finance Commission.
281 Recommendations of the Finance Commission.
Miscellaneous financial provisions A.K. Gopalan Case (1950): (Interpreted key Fundamental Rights including Article 19 and 21)
282 Expenditure defrayable by the Union or a State out This is a significant decision of the Hon’ble Supreme Court because it represented the first case where the court
of its revenues. meaningfully examined and interpreted key fundamental rights enlisted in the constitution including article 19 and
283 Custody, etc., of Consolidated Funds, Contingency
21. The contention was whether, under the writ of habeas corpus and the provisions of the preventive detention
Funds and moneys credited to the public accounts.
284 Custody of suitors’ deposits and other moneys act, there was a violation of the fundamental rights entitled in article 13, 19, 21 and 22.
received by public servants and courts.
285 Exemption of property of the Union from State The Hon’ble Supreme Court restricted the scope of fundamental rights by reading them in isolation of article 21
taxation. and 22 which provided guidelines for preventive detention. The Hon’ble Supreme Court iterated that the term ‘due
286 Restrictions as to imposition of tax on the sale or
process’ prevented the courts from engaging in substantive due process analysis in determining the
purchase of goods.
287 Exemption from taxes on electricity. reasonableness of the level of the process provided by the Legislature.
288 Exemption from taxation by States in respect of
water or electricity in certain cases. Shankari Prasad Case (1951): (Amendability of Fundamental Rights)
289 Exemption of property and income of a State from In this case, the validity of the first constitutional amendment which added Article 31-A and 31-B of the
Union taxation.
Constitution was challenged. The first time, the question whether fundamental rights can be amended under
290 Adjustment in respect of certain expenses and
pensions. Article 368 came for consideration of the Hon’ble Supreme Court.
290A Annual payment to certain Devaswom Funds. The Hon’ble Supreme Court rejected the contention that in so far as the First Amendment took away or abridged
291 [Repealed.] the fundamental rights conferred by Part III it should not be upheld in the light of the provisions of article 13(2).
CHAPTER II : BORROWING Therefore "law" in article 13 must be taken to mean rules or regulations made in the exercise of ordinary
292 Borrowing by the Government of India.
legislative power and not amendments to the Constitution made in the exercise of constituent power. Article 13
293 Borrowing by States.
CHAPTER III : PROPERTY, CONTRACTS, RIGHTS, (2) did not affect amendments made under article 368.
LIABILITIES, OBLIGATIONS AND SUITS
294 Succession to property, assets, rights, liabilities and
obligations in certain cases. Berubari Union case (1960): (Parliament's power to make amendments under Article 3 and Article
295 Succession to property, assets, rights, liabilities and 368)
obligations in other cases. In this case, conflict arose regarding the power of the parliament to transfer the territory of Berubari to Pakistan.  
296 Property accruing by escheat or laps or as bona The detailed examination of article 3 was done by the Hon’ble Supreme Court on a reference made by the
vacantia. President in 1960. The Hon’ble Supreme Court held that the Parliament of India is not competent to make a law
297 Things of value within territorial waters or
continental shelf and resources of the exclusive under article 3 for the implementation of the Nehru-Noon Agreement.
economic zone to vest in the Union. This was followed by an amendment of the constitution by parliament using the power of Article 368. The result
298 Power to carry on trade, etc. was the Constitution (9th Amendment) Act 1960. The Hon’ble Supreme Court gave a very narrow judgement that
299 Contracts. the preamble was not an integral part of the constitution and therefore it is not enforceable in a court of law.
300 Suits and proceedings.
CHAPTER IV : RIGHT TO PROPERTY
300A Persons not to be deprived of property save by I. C. Golaknath case (1967): (Validity of the First and Seventeenth Amendments and described the
authority of law. scope of Article 13)
PART XIII : TRADE, COMMERCE AND
INTERCOURSE WITHIN THE TERRITORY OF The validity of the First and Seventeenth Amendments to the Constitution in so far as they affect the fundamental
INDIA rights was again challenged is this case. The fourth amendment was also challenged.
301 Freedom of trade, commerce and intercourse. The Hon’ble Supreme Court adopted a doctrine of prospective overruling under which the three constitutional
302 Power of Parliament to impose restrictions on trade, amendments concerned would continue to be valid. Moreover, the Hon’ble Supreme Court held that article 368
commerce and intercourse. dealt only with the procedure for amendment and an amendment to the Constitution is made as part of the
303 Restrictions on the legislative powers of the Union
and of the States with regard to trade and commerce. normal legislative process. It is, therefore, a "law" for the purpose of article 13 (2).
304 Restrictions on trade, commerce and intercourse To get over the decision of the Hon’ble Supreme Court in Golaknath’s case the Constitution 24th Amendment Act
among States. was passed in 1971 in which changes to articles 13 and 368 was made.
305 Saving of existing laws and laws providing for State
monopolies.
306 [Repealed.] Kesvananda Bharti case (1973): (Defined the Basic Structure of the Indian Constitution)
307 Appointment of authority for carrying out the The Hon’ble Supreme Court reviewed the decision in Golaknath Vs. The state of Punjab and considered the
purposes of articles 301 to 304. validity of the 24th, 25th, 26th and 29th Amendments. The Court held that although no part of the constitution,
PART XIV : SERVICES UNDER THE UNION AND
THE STATES
including fundamental rights, was beyond the amending power of Parliament, the "basic structure of the
CHAPTER I : SERVICES Constitution could not be abrogated even by a constitutional amendment.
308 Interpretation. It is a landmark judgement of the Hon’ble Supreme Court of India, and is the basis in Indian law for the exercise
309 Recruitment and conditions of service of persons of the Indian judicial of the power to judicially review, and strike down amendments to the Constitution of India
serving the Union or a State. passed by the Indian Parliament which conflict with the Constitution's basic structure.
310 Tenure of office of persons serving the Union or a
State.
The judgment also defined the extent to which the Indian Parliament could restrict the right to property, in pursuit
311 Dismissal, removal or reduction in rank of persons of land reform and the redistribution of large landholdings to cultivators, overruling previous decisions that
employed in civil capacities under the Union or a State. suggested that the right to property could not be restricted.
312 All-India services.
312A Power of Parliament to vary or revoke conditions of Indira Nehru Gandhi Vs. Raj Narayan case (1975): (Disputes relating to elections involving the
service of officers of certain services.
313 Transitional provisions.
Prime Minister of India)
314 [Repeated.] The concept of basic structure was reaffirmed in Indira Nehru Gandhi Vs. Raj Narayan case. The Hon’ble Supreme
CHAPTER II : PUBLIC SERVICE COMMISSIONS Court applied the theory of basic structure and struck down Clause(4) of article 329-A, which was inserted by the
315 Public Service Commissions for the Union and for the 39th Amendment in 1975 on the ground that it was beyond the amending power of the parliament as it destroyed
States. the basic feature of the constitution.
316 Appointment and term of office of members.
317 Removal and suspension of a member of a Public
The amendment was made to the jurisdiction of all courts, including the Hon’ble Supreme Court, over disputes
Service Commission. relating to elections involving the Prime Minister of India. Some basic features of the Constitution were listed in
318 Power to make regulations as to conditions of this case which is considered as unamendable such as sovereign democratic republic status, equality of status and
service of members and staff of the Commission. opportunity of an individual, secularism and freedom of conscience and religion and rule of law.
319 Prohibition as to the holding of offices by members
of Commission on ceasing to be such members.
320 Functions of Public Service Commissions. Menaka Gandhi case (1978): (Significant towards the transformation of the judicial review on
321 Power to extend functions of Public Service Article 21)
Commissions.
322 Expenses of Public Service Commissions.
This case is a landmark judgement which played the most significant role towards the transformation of the
323 Reports of Public Service Commissions. judicial view on Article 21 of the Constitution of India so as to imply many more fundamental rights from article
PART XIVA : TRIBUNALS 21. A writ petition was filed by Maneka Gandhi under Article 32 of the Constitution in the Hon’ble Supreme Court.
323A Administrative tribunals. The main issues of this case were whether the right to go abroad is a part of the right to personal liberty under
323B Tribunals for other matters. Article 21 and whether the Passport Act prescribes a ‘procedure’ as required by Article 21 before depriving a
PART XV : ELECTIONS
324 Superintendence, direction and control of elections
person of the right guaranteed under the said article.
to be vested in an Election Commission. A new doctrine of a post-decision theory was evolved and the most significant interpretation was made on the
325 No person to be ineligible for inclusion in, or to claim interconnections between the three articles 14, 19 and 21.
to be included in a special, electoral roll on grounds of It was finally held by the court that the right to travel and go outside the country is included in the right to
religion, race, caste or sex. personal liberty guaranteed under Article 21. The Court ruled that the mere existence of an enabling law was not
326 Elections to the House of the People and to the
enough to restrain personal liberty. Such a law must also be “just, fair and reasonable”.
Legislative Assemblies of States to be on the basis of
adult suffrage.
327 Power of Parliament to make provision with respect
Minerva mills case (1980): (Basic Structure which includes Parliament's power to amend and the
to elections to Legislatures.
328 Power of Legislature of a State to make provision power of Judicial Review)
with respect to elections to such Legislature. In this case, the validity of the 42nd amendment act was challenged on the ground that they are violative of the
329 Bar to interference by courts in electoral matters. ‘basic structure’ of the Constitution. The Hon’ble Supreme Court struck down clauses (4) and (5) of the article 368
329A [Repealed.] and it was ruled by the court that a limited amending power itself is a basic feature of the Constitution. The court
PART XVI : SPECIAL PROVISIONS RELATING TO
held that the amendment made to Article 31C is invalid on the ground that they violate two basic features of the
CERTAIN CLASSES

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330 Reservation of seats for Scheduled Castes and Constitution that are the limited nature of the parliament of the power to amend and the power of judicial review.
Scheduled Tribes in the House of the People. The Judgement of the Hon’ble Supreme Court thus makes it clear that the Constitution is the Supreme, not the
331 Representation of the Anglo-Indian community in
the House of the People.
Parliament. Parliament cannot have unlimited amending power so as to damage or destroy the Constitution to
332 Reservation of seats for Scheduled Castes and which it owes its existence and also derives its power from.
Scheduled Tribes in the Legislative Assemblies of the
States.
333 Representation of the Anglo-Indian community in Waman Rao Case (1981): (Validity of 9th Schedule and demarcarting the date of 24th april 1973)
the Legislative Assemblies of the States. Supreme Court in Waman Rao case once again reiterated and applied the doctrine of the basic features of the
334 Reservation of seats and special representation to Constitution. In this case, the implications of the basic structure doctrine for Article31-B were re-examined. The
cease after sixty years. Court drew a line of demarcation on April 24th, 1973 (the date of Kesavananda Bharti’s decision) and held it
335 Claims of Scheduled Castes and Scheduled Tribes to
services and posts.
should not be applied retrospectively to reopen the validity of any amendment to the Constitution, which took
336 Special provision for Anglo-Indian community in place prior to 24-04-1973. It meant all the amendments which added to the Ninth Schedule before that date were
certain services. valid.
337 Special provision with respect to educational grants All future amendments were held to be challengeable on the grounds that the Acts and Regulations, which they
for the benefit of Anglo-Indian Community. inserted in the Ninth Schedule, damaged the basic structure. The decision of this case is a landmark one in the
338 National Commission for Scheduled Castes.
338A National Commission for Scheduled Tribes.
constitutional jurisprudence of India. This case has helped in determining a satisfactory method of preserving the
339 Control of the Union over the Administration of settled position and to address grievances pertaining to the violation of fundamental rights. 
Scheduled Areas and the welfare of Scheduled Tribes.
340 Appointment of a Commission to investigate the S. R. Bommai case (1994): (Misuse of Article 356 of the Constitution of India)
conditions of backward classes. S. R. Bommai case was a landmark judgment of the Hon’ble Supreme Court of India, where the Court discussed
341 Scheduled Castes.
342 Scheduled Tribes.
provisions of Article 356 of the Constitution of India and related issues. This case had a huge impact on Centre-
PART XVII : OFFICIAL LANGUAGE State Relations. The judgement attempted to curb blatant misuse of Article 356 of the Constitution of India, which
CHAPTER I : LANGUAGE OF THE UNION allowed President's rule to be imposed on state governments.
343 Official language of the Union. R. Bommai Vs. The Union of India raised a serious question of law relating to the Proclamation of President's Rule
344 Commission and Committee of Parliament on official and dissolution of Legislative assemblies according to Article 356 of the Constitution of India. This verdict stopped
language.
CHAPTER II : REGIONAL LANGUAGES
the misuse of Article 356 (imposition of the president rule).
345 Official language or languages of a State. Conclusion:
346 Official language for communication between one “It is emphatically the province and duty of the Judicial Department to say what the law is.” -
State and another or between a State and the Union. Marbury
347 Special provision relating to language spoken by a Judicial review is needed to uphold the principle of the supremacy of the Constitution, to maintain federal
section of the population of a State.
CHAPTER III : LANGUAGE OF THE HON’BLE
equilibrium and to protect the fundamental rights of the citizens. India is a synthesis of both, that is, the American
SUPREME COURT, HIGH COURTS, ETC. principle of judicial supremacy and the British principle of parliamentary supremacy.
348 Language to be used in the Hon’ble Supreme Court
and in the Hon’ble High Courts and for Acts, Bills, etc.
349 Special procedure for enactment of certain laws Landmark Judgments on constitution of India
relating to language. 1. State of Madras v/s Champakam Dorairajan, 1951:-
CHAPTER IV : SPECIAL DIRECTIVES
1. This judgement led to the First Amendment of the Constitution of India.
350 Language to be used in representations for redress
of grievances. 2. SC ruled that in case of any conflict between Fundamental Right & DPSP, FR superior
350A Facilities for instruction in mother-tongue at 3. It was the first major judgement regarding reservations in Republic of India
primary stage. 2. Golaknath case v/s State of Punjab,1967:-
350B Special Officer for linguistic minorities. 1. SC held that Fundamental Right cannot be amend for implementation of Directive Principles of
351 Directive for development of the Hindi language.
State Policy (DPSP).
PART XVIII : EMERGENCY PROVISIONS
352 Proclamation of Emergency. 2. Parliament can not cut any of the fundamental right of individual mentions in the constitution.
353 Effect of Proclamation of Emergency. 3. Kesavananda Bharati v/s State of Kerala, 1973: -
354 Application of provisions relating to distribution of 1. Supreme Court of India that outlined the Basic Structure doctrine of the Constitution.
revenues while a Proclamation of Emergency is in 2. SC ruled that basic structure of the constitution cannot be amended.
operation.
355 Duty of the Union to protect States against external
4. State of Uttar Pradesh (Indira Nehru Gandhi) v/s Shri Raj Narain, 1975
aggression and internal disturbance. 1. 1975, Allahabad High Court found Indira Gandhi guilty of electoral malpractices.
356 Provisions in case of failure of constitutional 2. Allahabad High Court declared the election verdict in the Rae Bareilly constituency "null and
machinery in States. void", and barred Indira from holding elected office for six year
357 Exercise of legislative powers under Proclamation 5. Minerva Mills v/s Union of India, 1980:-
issued under article 356.
1. Supreme Court of India that applied and evolved the basic structure doctrine of the Constitution
358 Suspension of provisions of article 19 during
emergencies. of India.
359 Suspension of the enforcement of the rights 2. SC strengthened doctrine of basic structure which was compounded in the Keshavnanda Barti
conferred by Part III during emergencies. Case ,two changes which were made by 42nd amendment were declared void by the SC in the
359A [Repealed.] particular case.
360 Provisions as to financial emergency.
6. Indra Sawhney v/s Union Of India & Others, 1992:-
PART XIX : MISCELLANEOUS
361 Protection of President and Governors and 1. Reservation in central govt jobs
Rajprakukhs. 2. No manner shall the reservation exceed 50% of the criterion
361A Protection of publication of proceedings of 3. SC held that in this matter the caste could be a factor for identifying the backward classes.
Parliament and State Legislatures. 7. S. R. Bommai v/s Union of India , 1994:-
361B Disqualification for appointment on remunerative
1. Supreme Court of India, where the Court discussed at length provisions of Article 356 of the
political post.
362 [Repealed.] Constitution of India and related issues.
363 Bar to interference by courts in disputes arising out 2. This case had huge impact on Centre-State Relations.
of certain treaties, agreements, etc. 8. Ayodhya Ram mandir v/s Babri masjid case, 2010
363A Recognition granted to Rulers of Indian States to 1. SC ruled that land was to be divided in three parts
cease and privy purses to be abolished.
9. National Legal Services Authority v/s Union of India, 2014:-
364 Special provisions as to major ports and
aerodromes. 1. It declared transgender people to be a 'third gender', affirmed that the fundamental rights. It
365 Effect of failure to comply with, or to give effect to, declared transgender people to be a 'third gender', affirmed that the fundamental rights
directions given by the Union. 2. So Third gender consider as citizens with rights.
366 Definitions. 10. Justice K. S. Puttaswamy (Retd.) v/s Union Of India And Ors., 2017 :-
367 Interpretation.
1. Supreme Court of India holds that the right to privacy is protected as a fundamental
PART XX : AMENDMENT OF THE CONSTITUTION
368 Power of Parliament to amend the Constitution and constitutional right.
procedure therefor. 11. The Anchorage Case (2011)
PART XXI : TEMPORARY, TRANSITIONAL Restoration of the conviction and sentence of six-year rigorous imprisonment imposed on two
AND SPECIAL PROVISIONS British nationals who were acquitted by the Bombay High Court in a pedophilia case.
369 Temporary power to Parliament to make laws with
12. Social Media (2013)
respect to certain matters in the State List as if they
were matters in the Concurrent List. In view of public outrage over people being arrested for making comments or liking posts on
370 Temporary provisions with respect to the State of Facebook, Centre had on January 9 issued advisory to all states and UTs asking them not to
Jammu and Kashmir. arrest a person in such cases without prior approval of a senior police officer.
371 Special provision with respect to the States of 14. Cheap cancer drugs (2013)
Maharashtra and Gujarat.
The Hon’ble Supreme Court rejected a patent plea by Swiss drugmaker Novartis AG for cancer
371A Special provision with respect to the State of
Nagaland. drug Glivec, boosting the case for cheaper drugs for life-threatening diseases.
371B Special provision with respect to the State of 15. Curbing the sale of Acid (2013)
Assam. The court said that acid should be sold only to people who show a valid identity card. Buyers
371C Special provision with respect to the State of will also have explain why they need the chemical and sales will have to be reported to the
Manipur.
police.
371D Special provisions with respect to the State of
Andhra Pradesh.
371E Establishment of Central University in Andhra 40 Landmark Judgments that Changed the Legal Course of India
Pradesh.
371F Special provisions with respect to the State of 1. Jury decision overturned by High Court (KM Nanavati v State of Maharashtra) - 1961
Sikkim.
371G Special provision with respect to the State of Hardly an open-and-shut case, the nature of the crime garnered media attention.
Mizoram. This case is notable for being the last case when a jury trial was held in India. KM Nanavati, a naval officer,
371H Special provision with respect to the State of murdered his wife's lover, Prem Ahuja. The jury ruled in favour of Nanavati and declared him "not guilty" which
Arunachal Pradesh. was eventually set aside by the Bombay High Court.
371-I Special provision with respect to the State of Goa.
372 Continuance in force of existing laws and their
adaptation. 2. Amendment masquerades as law (IC Golaknath v State of Punjab) - 1967
372A Power of the President to adapt laws. Parliament's prevented from taking away individual rights.
373 Power of President to make order in respect of In the highly famous case of Golaknath V State of Punjab in 1967 the Hon’ble Supreme Court ruled that
persons under preventive detention in certain cases. Parliament could not curtail any of the Fundamental Rights of individuals mentioned in the Constitution.
374 Provisions as to Judges of the Federal Court and Parliament's overarching ambitions nipped in the bud (Keshavananda Bharti vs State of Kerala) 1973.
proceedings pending in the Federal Court or before His
Majesty in Council.
375 Courts, authorities and officers to continue to 3. Elected representatives cannot be given the benefit of doubt
function subject to the provisions of the Constitution. A highly notable case which introduced the concept of "basic structure" of the constitution of India and declared
376 Provisions as to Judges of High Courts. that those points decided as basic structure could not be amended by the Parliament. The case was triggered by
377 Provisions as to Comptroller and Auditor-General of the 42nd Amendment Act.
India.
378 Provisions as to Public Service Commissions.
378A Special provision as to duration of Andhra Pradesh 4. Beginning of the fall of Indira Gandhi (Indira Gandhi v Raj Narain) - 1975
Legislative Assembly. The trigger that led to the imposition of emergency.
379-391 [Repealed.] In this landmark case regarding election disputes, the primary issue was the validity of clause 4 of the 39th
392 Power of the President to remove difficulties. Amendment Act. The Hon’ble Supreme Court held clause 4 as unconstitutional and void on the ground that it was
PART XXII : SHORT TITLE, COMMENCEMENT,
AUTHORITATIVE TEXT IN HINDI AND REPEALS
outright denial of the right to equality enshrined in Article 14. The Hon’ble Supreme Court also added the
393 Short title. following features as “basic features” laid down in Keshavananda Bharti case – democracy, judicial review, rule of
394 Commencement. law and jurisdiction of Supreme Court under Article 32.
394A Authoritative text in the Hindi language.
395 Repeals. 5. A step backward for India (ADM Jabalpur v Shivakant Shukla Case) - 1976
Widely considered a violation of Fundamental Rights.
In this landmark judgment, the Hon’ble Supreme Court declared that the rights of citizens to move the court for
violation of Articles 14, 21 and 22 would remain suspended during emergencies. Triumph of individual liberty
(Maneka Gandhi vs UOI) 1978.

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6. Overlapping zones of laws rectified thanks to a writ petition

The case caused a huge uproar over the definition of Freedom of Speech. The court ruled that the procedure
must be fair and the law must not violate other Fundamental Rights.

7. Parliament limited by itself (Minerva Mills v Union of India) - 1980

In this landmark judgment, the Hon’ble Supreme Court of India in 1980 strengthened the doctrine of the basic
structure which was propounded earlier in the Keshavananda Bharti Case. Two changes which were made earlier
by the 42nd Amendment Act were declared as null and void by the Hon’ble Supreme Court in this particular case.

8. Constitutional validity of individual rights upheld (Waman Rao v Union of India) - 1981
SC ruled that Parliament had transgressed its power of constitutional amendment.
This case was a landmark decision in the constitutional jurisprudence of India. This case has helped in
determining a satisfactory method of addressing grievances pertaining to the violation of fundamental rights by
creating a fine line of determination between the Acts prior to and after the Keshavananda Bharati case.

9. Maintenance lawsuit sets precedent (Mohd Ahmed Khan v Shah Bano Begum) - 1985
Shah Bano won the right to get alimony from her husband.
The petitioner challenged the Muslim personal law. The Hon’ble Supreme Court ruled in favour of Shah Bano and
granted her alimony. Most favoured it as a secular judgment but it also invoked a strong reaction from the Muslim
community, which felt that the judgment was an encroachment on Muslim Sharia law and hence led to the
formation of the All India Muslim Personal Law Board in 1973.

10. MC Mehta v Union Of India - 1986

Mounting environment-related concerns.
A PIL filed by MC Mehta in 1986 enlarged the scope and ambit of Article 21 and Article 32 to include the right to
healthy and pollution-free environment.

11. Reservation in central government jobs (Indra Sawhney v UOI November) - 1992
Attempt to correct historic injustices constitutionally.
The constitutional bench of the Hon’ble Supreme Court held in this matter that caste could be a factor for
identifying backward classes.

12. Wrangle over Supreme Court judge appointments (Supreme Court Advocates-on-Record -
Association and another versus Union of India) - 1993
The National Judicial Appointments Commission Act and Constitutional amendment Act passed in 2014 aimed at
replacing the collegium system of appointing Supreme Court judges. The act was struck down as
unconstitutionalby the Hon’ble Supreme Court in October 2015.

13. Power of President's Rule curtailed (SR Bommai v Union of India) - 1994
Persecution of state governments stalled.
This landmark case had major implications on Center-State relations. Post this case the Hon’ble Supreme Court
clearly detailed the limitations within which Article 356 has to function.

14. Scam-tainted politicians - 1997

The Jain Hawala case exposed bigwigs.
The Hawala scandal was an Indian political scandal involving payments allegedly received by politicians through
four hawala brokers, the Jain brothers. In 1991, an arrest linked to militants in Kashmir led to a raid on hawala
brokers, revealing evidence of large-scale payments to national politicians. The prosecution that followed was
partly prompted by a public interest litigation. Many were acquitted, partly because the hawala records (including
diaries) were judged in court to be inadequate as the main evidence. The Hon’ble High Court decreed that the CBI
had not brought on record any material which could be converted into legally admissible evidence.

15. Foundation for a female workforce (Vishaka v State of Rajasthan) - 1997

Definition of sexual harrassment and guidelines to deal with it laid down.
In this case Vishakha and other women groups filed a Public Interest Litigation (PIL) against State of Rajasthan
and Union of India to enforce fundamental rights for working women under Articles 14, 19 and 21 of the
Constitution. This resulted in the introduction of Vishaka Guidelines. The judgment of August 1997 also provided
basic definitions of sexual harassment at the workplace and provided guidelines to deal with it. Hence the
importance of the case as a landmark judgment.

16. Afzal Guru's death sentence sparked protests - 2002

Awarded death sentence for role in 2001 Parliament attacks.
Afzal Guru was sentenced to death on February 2013 for his role in the December 2001 attacks on the Indian
Parliament. The judgment faced widespread criticism on three grounds – lack of proper defense, lack of primary
evidence and judgment based on collective conscience rather than rule of law.

17. Justice deferred in Best Bakery case - 2003

Miscarriage of justice as a large number of witnesses turn hostile.
The Best Bakery was burned down, killing 14 people on March 1, 2002 as part of the 2002 Gujarat violence. The
Hon’ble Supreme Court, in a rarest of rare case, ordered a re-trial outside of Gujarat in which nine out of the
seventeen accused were convicted by a special court in Mumbai in 2006.

18. State of Tamil Nadu V Suhas Katti - November 2004

Short conviction time of seven months.
This was notable for being the first case involving conviction under the Information Technology Act, 2000. A
family friend of a divorced woman was accused of posting her number online on messenger groups which led to
her being harassed by multiple lewd messages. The accused was later convicted and sentenced.

19. Rameshwar Prasad v Union Of India - 2005

Dissolution of Bihar Assembly unwarranted.
In this case, the petitioner challenged the constitutional validity of a notification which ordered dissolution of the
legislative Assembly of the state of Bihar. The dissolution had been ordered on the ground that attempts were
being made to cobble a majority by illegal means and lay claim to form the government in the state which if
continued would lead to tampering with constitutional provisions. The Hon’ble Supreme Court held that the
aforementioned notification was unconstitutional.

20. Victims of sexual assault or not? (Om Prakash v Dil Bahar) - 2006
Controversial ruling had many opponents.
The Hon’ble Supreme Court in the above case declared that a rape accused could be convicted on the sole
evidence of the victim in spite of medical evidence not proving that it was rape.

21. Priyadarshini Mattoo case - October 2006

14-year-old fight for justice gets results.
In this matter the Hon’ble Supreme Court had commuted the death sentence awarded to prime accused Santosh
Singh (son of former IPS officer), to life imprisonment for the rape and murder of the 23-year-old law student,
Priyadarshini Mattoo.

22. Jessica Lal Murder Case - December 2006

Civil society makes big gains.
A model in New Delhi working as a bartender was shot dead and the prime accused Manu Sharma, son of
Congress MP Vinod Sharma who was initially acquitted in February 2006 was later sentenced to life imprisonment
in December 2006 by a fast track hearing by the Delhi High Court. On 19 April 2010, the Hon’ble Supreme Court
of India approved the sentence.

23. Sanjay Dutt plays prisoner in real life - 2007

Conviction under TADA changed under milder Arms Act.
Well-known actor Sanjay Dutt was sentenced to five year imprisonment by the Hon’ble Supreme Court for illegal
weapons possession in a case linked to the 1993 serial blasts in Mumbai. The Hon’ble Supreme Court also cited
that the circumstances and nature of offence were too serious for the 53-year-old actor to be released on
probation.

24. Nithari serial murders - 2009

Koli was served with multiple death sentences.
A Special Sessions Court awarded death sentence in 2009 to Surinder Koli and Moninder Singh Pandher for the
murder of a 14-year-old girl. The murders believed to have been committed through 2006 involved instances of
cannibalism. Pandher was later acquitted by the Allahabad High Court and was released on bail but Koli’s death
sentence was upheld by both the Hon’ble High Court as well as the Hon’ble Supreme Court.

25. Aarushi Talwar murder - 2008

Verdict delivered under unusual circumstances.

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A case which received heavy media attention involved the double murder of 14-year-old Aarushi Talwar and her
45-year-old domestic help in Noida. After five years a Sessions court convicted both her parents Rajesh and Nupur
Talwar and sentenced them to life imprisonment.

26. Section 377 case (Naz Foundation v Govt of NCT of Delhi) - July 2009
Cause for rejoicing for homosexuals.
In 2009 the Hon’ble Supreme Court declared Section 377 of the Indian Penal Code, 1860 as unconstitutional. The
said section earlier criminalised sexual activities “against the order of nature” which included homosexual acts.
This judgment however, was overturned by the Supreme in December, 2013.

27. Meagre closure for controversial Ayodhya (Ayodhya Ram Mandir Babri Masjid Case) - September
2010
Ruled that the land was to be divided into three parts.
The Hon’ble High Court of Allahabad had ruled that the disputed land in Ayodhya where the Babri Masjid was
situated before it was demolished in 1992 shall be divided into three parts. Two-thirds of the land was to be
awarded to the Hindu plaintiffs and one-third to the Sunni muslim Waqf board.

28. Child sexual assault not to be taken lightly - 2011

Punishment not enough for child abusers.
The Hon’ble Supreme Court restored the conviction and sentence of six-year rigorous imprisonment imposed on
two British nationals who were acquitted by the Bombay High Court in a paedophilia case. The Bench directed the
accused to serve the remaining period of sentence. In a landmark judgment the Hon’ble Supreme Court observed
“Children are the greatest gift to humanity. The sexual abuse of children is one of the most heinous crimes”.

29. Vodafone's name cleared in tax battle (Vodafone-Hutchison tax case) - January 2012
Landmark decision on taxability of offshore transactions.
The Hon’ble Supreme Court ruled in favour of Vodafone in the two-billion-dollar tax case citing that capital gains
tax is not applicable to the telecom major. The Hon’ble Apex Court also said that the Rs 2,500 crore which
Vodafone had already paid should be returned with interest.

30. Clean chit to Prime Minister Narendra Modi - 2012

Questions remains and victims of families yet to get closure.
In April 2012 the Hon’ble Supreme Court appointed Special investigation Team (SIT) gave current Prime Minister
Narendra Modi a clean chit in the post-Godhra Gulberg massacre case citing that it found no evidence against
him. Narendra Modi went on to become the Prime Minister of India with a huge mandate.

31. Mohd Ajmal Amir Kasab v State of Maharashtra - 2012

One of the most high-profile executions in the country.
The Hon’ble Supreme Court observed that the acts on November 26, 2008, had shaken the collective conscience
of Indian citizens and had confirmed the death sentence awarded to prime accused Ajmal Kasab by the trial court
and affirmed by the Bombay High Court, for waging war against India.

32. NOTA Judgment - 2013

The right to reject candidates formalised.
In 2013, the Hon’ble Supreme Court introduced negative voting as an option for the country’s electorate.
According to this judgment an individual would have the option of not voting for any candidate (None-Of-The-
Above) if they don’t find any of the candidates worthy.

33. Patent troubles of Pharma company Novartis (Novartis v Union of India & Others) - 2013
Case accused of dealing a death blow to innovation in medicine.
Novartis’ application which covered a beta crystalline form of imatinib, a medicine the company brands as
"Glivec", which is very effective against chronic myeloid leukaemia (a common form of cancer) was denied patent
protection by the Intellectual Property Appellate Board. The Hon’ble Supreme Court in its ruling upheld the board’s
decision which eventually led to the medicine being made available to the general public at a much lower cost.

34. Illegalising convicted MPs and MLAs (Lily Thomas v Union Of India) - July 2013
Effected much-needed cleansing of legislative bodies.
The Hon’ble Supreme Court of India, in this judgment, ruled that any member of Parliament (MP), member of the
legislative assembly (MLA) or member of a legislative council (MLC) who was convicted of a crime and awarded a
minimum of two-year imprisonment, would lose membership of the House with immediate effect.

35. Uphaar fire tragedy (Sushil Ansal vs State Thr Cbi) - March 2014
Split judgment couldn't reach a decision on sentencing.
August 2015: Eighteen years after 59 people were killed in a fire in Delhi’s Uphaar cinema, the Hon’ble Supreme
Court held that the prime accused did not necessarily need to go back to jail as they were fairly aged. The court
further held that “ends of justice would meet” if the accused paid Rs 30 crore each as fine.

36. Nirbhaya case shook the nation - March 2014

Judiciary spurred into action and laws were strengthened for sex offenders.
Four out of the five accused in the horrific gang-rape case of Nirbhaya were convicted and given the death
sentence. The case also resulted in the introduction of the Criminal Law (Amendment) Act, 2013 which provides
for the amendment of the definition of rape under Indian Penal Code, 1860; Code of Criminal Procedures, 1973;
the Indian Evidence Act, 1872 and the Protection of Children from Sexual Offences Act, 2012.

37. Recognising the Third gender (National Legal Services Authority v Union of India) - April 2014
Third gender acknowledged as citizens with rights.
In a landmark judgment the Hon’ble Supreme Court in April, 2014 recognised transgender persons as a third
gender and ordered the government to treat them as minorities and extend reservations in jobs, education and
other amenities.

38. Section 66A revised (Shreya Singhal v Union of India) - March 2015
Cracking down on "offensive" online content not easy.
Controversial section 66A of the Information Technology Act which allowed arrests for objectionable content
posted on the internet was struck down as unconstitutional by the Hon’ble Supreme Court in March 2015.

39. Yakub Memon sentenced to death (Yakub Abdul Razak Memon V State of Maharashtra and Anr)
- July 2015
No reprieve for the accused in 1993 Mumbai serial blasts.
Yakub Abdul Razak Memon was convicted and sentenced to execution by hanging in March 2015 for his
involvement in the 1993 Bombay serial blasts. His conviction sparked a nationwide debate on capital punishment
in India.

40. Dance bars functional again - October 2015

After a gap of two decades, dance bars open.
The Hon’ble Supreme Court in July 2013 passed a judgment directing the state government to reopen dance bars
in Maharashtra which had earlier been banned under the Maharashtra Police Act. The resultant ban by the
Bombay High Court was stayed.

Landmark Constitutional Law Judgements

1. Champakam Dorairajan State of Madras,1951
In this case caste based reservations were stuck down by the court, as against Article 16(2) of the Constitution.
With regard to admission of students to the Engineering and Medical Colleges of the State, the Province of Madras
had issued an order which, fixed number of seats for particular communities. It noticed that while Cl. (1) Art. 29
protects the language, script or culture of a section of the citizens, cl. (2) guarantees the fundamental right of an
individual citizen. This right can not to be denied to the citizen only on grounds of religion, race, caste, language
or any of them. If a citizen who seeks admission into any such educational institution has not the requisite
academic qualifications and is denied admission on that ground, he certainly cannot be heard to complain of an
infraction of his fundamental right under this Article. This case resulted in First Amendment  of the Constitution of
India.
 
2. Golaknath State of Punjab1967
The Hon’ble Apex Court held that law made by the Parliament shall not be such that infringes and takes away the
fundamental rights of the citizen which are provided by the Constitution of India. Law made by a Parliament in a
law under Article 13 of the Constitution. Further, the constitution can be amended. The judgement was overruled
by 24th amendment. The judgement was restored and its scope was extended in Keshav nand Bharti case.
 
3. Madhav Jiwaji Rao Scindia Union of India, 1970
The infamous case, Madhav Jiwaji Rao Scindia Vs. Union of India deals with Article 18 of the Constitution of India.
It abolishes all special titles. The Hon’ble Supreme Court in this case held the 1970 Presidential order as invalid,.

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This decision of the court led to abolishing titles and privileges of India’s erstwhile princely rulers. It even
abolished privy purses of India’s erstwhile princely rulers.
 
4. Kesavananda Bharati State of Kerala, 1973
The bench in the present case comprised of 13 judges. This is the largest bench till date in the Indian judicial
history. The Hon’ble Supreme Court gave Parliament power to amend any part of Constitution of India. The court
further added that such amendment shall not take away the fundamental rights of the citizen which are provided
by the Constitution of India. Such law is a law under article 13 of the constitution. This case is also referred
as Fundamental rights case.
 
5. Indira Gandhi vs. Raj Narain, 1975
The Hon’ble Supreme Court held clause 4 of 39 th amendment as unconstitutional and void as it was out rightly
denied of the right to equality enshrined in Article 14. The Hon’ble Apex Court also added basic features of the
constitution to list laid down in Keshavananda Bharti case. Further, the court added jurisdiction of Supreme Court
under Article 32, which deals with writs basically also forms basic structure of the constitution.
 
6. D.M. Jabalpur Vs. S. Shukla, 1976
The Hon’ble Apex Court in the infamous case of A.D.M. Jabalpur Vs. S. Shukla was a case during prevailing of
emergency in the country. Right to move to the court for enforcement of fundamental rights guaranteed under
constitution stands suspended. This even includes Article 14, 21 and 22. This created a havoc in the nation. In
later amendment it was held that Article 21 and 22 cannot be suspended during the time of emergency.
 
7. Maneka Gandhi vs. Union of India, 1978
The case is considered a landmark case as it gave a new and highly varied interpretation to the meaning of ‘life
and personal liberty’ under Article 21 of the Constitution. This law which prescribes a procedure for depriving a
person of “personal liberty” has to fulfill the requirements of Articles 14 and 19 also. Also, it expanded the
horizons of freedom of speech and expression. The case saw a high degree of judicial activism. One of the
significant interpretation in this case is the discovery of inter connections between the three Articles- Article 14,
19 and 21. It was finally held by the court that the right to travel and go outside the country is included in the
right to personal liberty guaranteed under Article 21.
  
8. Minerva Mills Union of India,1980
The Hon’ble Supreme Court of India, strengthened the doctrine of the basic structure which was propounded
earlier in the Keshavananda Bharti Case and held social welfare laws should not infringe fundamental rights. Few
changes made by the 42nd Amendment Act were declared as null and void. It laid foundation of judicial review of
the laws and judgements in the courts of India. Judicial review is dealt in Article 13(2) of thee Constitution of
India.
 
9. MC Mehta Vs. Union of India, 1986
MC Mehta filed a Public Interest Litigation for escape of poisonous gases by a plant in Bhopal. The court in this
case extended the scope of Article 21 and 32 of the Constitution of India. The case is also famous as Bhopal Gas
Tragedy. Finally, the court granted interim compensation of 250 crores to the victims. Though High Court asked
Union Carbide to pay compensation of 350 crores to the victim.
 
10. SR Bommai Vs. Union of India, 1993
The court in this case curtailed power of President under Article 356 of the constitution of India. It also held that
secularism is the basic structure of the Constitution. It laid the existence of Ram Temple in the disputed area. It
held the case to larger bench for demolition of Babri Masjid.
 
11. Rajagopalv. State of Tamil Nadu, 1994
The court in this case decided that the right to privacy subsisted even if a matter becomes one of public record
and hence right to be let alone is part of personal liberty. This comes under the perview of Article 21 The case is
also known as auto Shankar case. The judges held that the petitioners have a right to publish, what they allege to
be the life story/autobiography of Auto Shankar insofar as it appears from the public records, even without his
consent or authorization. There is a violation of the right to freedom of expression.
  
12. Olga Tellis Vs. Bombay Municipal Corporation, 1985
This case came before the Hon’ble Supreme Court as a writ petition. 5 judge-bench gave decision allowing
petitioners who live on pavements and in slums in the city of Bombay to stay on the pavements against their
order of eviction.
The court also held that right to livelihood is a right to life as per Article 21. Though the slum resident agreed not
to challenge the decision of Municipal Corporation. Court held that one’s fundamental right cannot be waived.
 
13. Vishaka State of Rajasthan, 1997
This case came before the Hon’ble Supreme Court as a Public Interest Litigation against State of Rajasthan and
Union of India by Vishakha and other women groups. The petitioners demanded enforcement fundamental rights
for working women under Articles 14, 19 and 21 of the Constitution. For this, Vishaka Guidelines were issued. The
judgment also provided basic definitions of sexual harassment at the workplace along with provided guidelines to
deal with the same. Employers shall initiate appropriate action in accordance with concerned criminal law by
making a complaint with the appropriate authority. Disciplinary actions should be taken. Threw light on
compliance mechanism and workers’ initiative.
 
14. D.K. Basu Vs. State of West Bengal
In this case, the Hon’ble Supreme Court laid down detailed guidelines to be followed by the central and state
investigating agencies. It related all cases dealing with arrest and detention. The court held that till legal
provisions are made in that behalf as preventive measures. Court held that any form of torture or cruel inhuman
or degrading treatment.
Even it occurs during interrogation, investigation or otherwise, falls within the ambit of Article 21.
 
15. Supreme Court Advocates-on Record Association Vs. Union of India, 1993
It overruled S P Gupta Vs. Union of India. Court held primacy of Chief justice cannot be taken away in
appointment and transfer of judges of Supreme Court and High Courts. It recommended constitution of
collegiums of judges for the same. The case is named as  Second judges transfer case. It was later overruled a
committee called NJAC was appointed for appointment and transfer of judges of Supreme Court and High Courts.
It was again over ruled and NJAC was held unconstitutional in Supreme Court Advocates-on Record Association
Vs. Union of India, 2014
 
16. PA Inamdar Vs. State of Maharashtra, 2004
The case was decided by a 2-Judge Bench of the Hon’ble Supreme Court. The dispute related to the fixation of
quota in unaided professional institutions It also dealt withholding of examinations for admission into such
colleges.
The 2 matters were hence challenged in the court. The court held no fixation of quota in unaided professional
institutions. Admissions to be conducted on merit basis.
 
17. Subramanian swamy vs. Unlon of India,2016
The Hon’ble Supreme Court upheld the Constitutional Validity of Sections 499 to 502[[Chapter XXIl] of Indian
Penal Code relating to Criminal Defamation. The Bench comprising of Justices Dipak Misra and PC.Pant held that
the right to Life under Article 21 includes right to reputation. The Bench has dismissed the Petitions filed by
Subramanian Swamy, Rahul Gandhi and Arvind Kejriwal challenging the law relating to Criminal Defamation in
India.
Criminal Defamation law not unconstitutional.

18. Viiay Kumar Mishra and Anr Vs High court of Judicature at Patna To and Ors,2016
The Hon’ble Apex Court held that Article 233(2) of the Constitution of India only prohibits the appointment of a
person as District Judge. As he is already in the service of the Union or the State, but not the selection of such a
person.
The Court set aside the Patna High Court judgment. Which held that, the aspirant to resign his membership of the
subordinate judicial service if he aspires to become a District judge. SC can transfer cases from Jammu & Kashmir
Courts to courts Persons in Govt/Judicial service need not resign to participate in District Judge Selection Process
 
19. Kazi vs. Muslim education society,2016
The Hon’ble Supreme Court held that all Tribunals are not necessary parties. This is majorly  in a Special Civil
Applications under Articles 226 and 227 of the Constitution, They are not required to defend its orders when they
are challenged before the Hon’ble High Court. All Tribunals are not necessary parties to the proceedings where
legality of its orders challenged
 
20. Anita Kushwaha vs. Pushpa Sudan,2016
The Constitution Bench of the Hon’ble Supreme Court held that Supreme Court can, by invoking Article 32, 136
and 142 of the Constitution. It is empowered to transfer a case from a Court in the State of Jammu and Kashmir

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 11

to a Court outside the State or vice versa. The Judges Bench comprised of Chief Justice of India Dr. T.S. Thakur,
Justices Fakkir Mohamed Ibrahim Kalifulla, A.K. Sikri, S.A. Bobde, and R. Banumathi. They further made an
important observation that Access to Justice is guaranteed to citizens by Article 14 and Article 21 of the
Constitution of India.

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 12

THE INDIAN PENAL CODE, 1860

List of Landmark Cases

Sr. Sections/Topics Related Cases

No. (Definitions etc.)
Barendra Kumar Ghosh Vs. King Emperor (AIR 1925 OC 1) (Lord Sumner
Joint Liability held that section 34 deals with the doing of a separate acts, similar or diverse,
Sections 34-38 by several persons; if all are done in furtherance of a common intention, each
person is liable for result of them all, as if he had done them himself;
34. Acts done by several persons
in furtherance of common
intention :- The Court also elucidated the provision contained in section 114 IPC. It has been
When a criminal act is done by several held that section 114 is not a rule of punishment rather like in case of section
persons in furtherance of the common 34, the charge will be framed under the main section only but by virtue of
intention of all, each of such persons is
liable for that act in the same manner section 114. For section 114 to apply it has to be distinctly proved that there
as if it were done by him alone. was prior abetment and thereafter when later the offence was committed, the
abettor was found to be present on spot. However, in such a case, 114 would be
35. When such an act is criminal needed as the requirement of section 34 may not be fulfilled. The court has held
by reason of its being done with a that prior abetment coupled with presence on the spot is nothing but the same
criminal knowledge or intention :-
Whenever an act, which is criminal
as if the crime was committed by the abettor himself.
only by reason of its being done with a
criminal knowledge or intention, is Mahbub Shah Vs. Emperor, known as the ‘Indus River case’ (AIR 1945 PC
done by several persons, each of such
persons who joins in the act with such 118) {In this case, the deceased Allah Dad and few others were going in a
knowledge or intention is liable for the native boat down the Indus river to cut and collect reeds growing on the bank of
act in the same manner as if the act the river. A mile from the place where they started, they were warned by Mohd.
were done by him alone with that
knowledge or intention.
Shah, father of Wali Shah (Who absconded and was never apprehended), not to
cut reeds from the land belonging to him. However, when they continued to cut
36. Effect caused partly by act and
and load reeds into their boat, they were accosted by Quasim Shah, nephew of
partly by omission :- Mohd. Shah, who tried to remove the reeds from them and prevent them from
Wherever the causing of a certain moving. At this point of time hearing hue N’ and cry of Quasim Shah, Wali Shah
effect, or an attempt to cause that and Mahbub Shah appeared on the scene with loaded guns. Wali Shah shot at
effect, by an act or by an omission, is
an offence, it is to be understood that Allah Dad killing him instantaneously. Mahbub Shah fired at Hamidullah causing
the causing of that effect partly by an him slight injuries.
act and partly by an omission is the
same offence.
The trial court sentenced Mahbub Shah to seven years rigorous imprisonment
Illustration
for attempting o commit murder. The Lahore High Court, however, convicted
A intentionally causes Z’s death, partly him also for murder under s. 302 r/w s. 34 and sentenced him to death.
by illegally omitting to give Z food, and
partly by beating Z. A has committed
murder. Very interestingly, the Privy Council set aside his conviction for murder on the
ground that there was no evidence to prove that there was a common intention
37. Co-operation by doing one of between Mahbub Shah and absconding Wali Shah. It is worth quoting the
several acts constituting an judgment Sir Madhavan Nair:-
offence :-
When an offence is committed by
means of several acts, whoever “Under section 34 of the Indian Penal Code, the essence of liability is to be
intentionally co-operates in commission found in the existence of a common intention animating the accused leading to
of that offence by doing any one of the doing of a cririnal act in furtherance of such intention. To invoketh aid
those acts, either singly or jointly with
any other person, commits that section 34 successfully, it must be shown that the criminal act complained
offence. against was done by one of the accused persons in furtherance, of common
intention of all; if this is so then liability for the crime may be imposed on any
Illustrations one of the persons in the same manner as if the act were done by him alone.
(a) A and B agree to murder Z by This being the principle, it is clear to their Lordships that common intention
severally and at different times giving
within the meaning of the section implies a pre-arranged plan, and to convict the
him small doses of poison. A and B
administer the poison according to the accused of an offence applying the section it should be proved that the criminal
agreement with intent to murder Z. Z act was done in concert pursuance of the pre arranged plan.”
dies from the effects of the several
doses of poison so administered to
him. Here A and 8 intentionally co- The court further observed that: “Evidence falls short of showing that the
operate in the commission of murder appellant and Wali Shah ever entered into a premeditated concert to bring about
and as each of them does an act by
the murder of Allah Dad in carrying out their intention of rescuing Quasim Shah.
which the death is caused, they are
both guilty of the offence though their Care must be taken not to confuse same or similar intention with common
acts are separate. intention; the partition which divides their bonds is often very thin; nevertheless,
the distinction is real and substantial and if overlooked will result in miscarriage
(b) A, a jailor-, has the charge of Z, a of justice.”
prisoner. A, intending to cause Z’s
death, illegally omits to supply Z with
food in consequence of which Z is In Suresh Vs. State of U.P. [(2001) 3 SCC 673] {the ambit of section 34
much reduced in strength, but the IPC were in issue in this case. More specifically, whether the accused who is
starvation is not sufficient to cause his
sought to be convicted with the aid of that section, should have done some act
death. A is dismissed from his office,
and B succeeds him. B, without even assuming that the said accused also shared the common intention with the
collusion or co-operation with A, other accused.
illegally omits to supply Z with food,
knowing that he is likely thereby to
cause Z’s death. Z dies of hunger. B is The court speaking through Thomas, J. observed and held as following:
guilty of murder, but, as A did not co- * As the section 34 speaks of doing “a criminal act by several persons” we have
operate with B. A is guilty only of an
to look at section 33, IPC which defines the “act”. As per it, the word act
attempt to commit murder.
denotes as well a series of acts as a single act. This means that criminal act can
be a single act or it can be the conglomeration of a series of acts, similar or
38. Persons concerned in criminal
act may be guilty of different diverse.
offences:-
Where several persons are engaged or * In this contest, a reference to section 35, 37 and 38 IPC, in juxtaposition with
concerned in the commission of a
criminal act, they may be guilty of
section 34 is of advantage. These four provisions can he said to belong to one
different offences by means of that act. cognate group wherein different positions when more than one person
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 13

participating in the commission of one criminal act are involved. Section 35 says
Illustration that when an act is done by several persons each of such persons who join in
A attacks Z under such circumstances the act with mens rea is liable for the act “in the same manner as if the act were
of grave provocation that his killing of
Z would be only culpable homicide not
done by him alone with that knowledge or intention.”The section differs from
amounting to murder B, having ill-will section 34 only regarding one postulate. In the place of common intention of all
towards Z and intending to kill him, such person as is required in section 34, it is enough that each participant who
and not having been subject to the joins others in doing the criminal act has the required mens rea.
provocation, assists A in killing Z. Here,
though A and B are both engaged in
causing Z's death, B is guilty of * Sec. 37 deals with the commission of an offence “by means of several acts”.
murder, and A is guilty only of culpable
homicide.
The section renders anyone who intentionally co-operates in the commission of
that offence “by doing any one of those acts” to be liable for that offence.
Section 38 also shows another facet of one criminal act being done by several
persons without connecting the common bond i.e. “in furtherance of the
common intention of all.” In such a case, they would be guilty of different
offence or offences but not for the same offence.

* Hence, under sec. 34, one criminal act, composed of more than one act, can
be committed by more than one person and if such commission is in furtherance
of the common intention of all of them, each would be liable for the criminal act
so committed.

* To understand section 34 better, it is useful to recast it in a different form by

way of an illustration. This would highlight the difference when several persons
do not participate in the crime committed by only one person though there was
common intention of more than one person. Suppose a section was drafted like
this: “When a criminal act is done by one person in furtherance of the common
intention of several persons, each of such several persons is liable for that act in
the same manner as if it were done by all such persons.” Obviously section 34 is
not meant to cover a situation which may fall within this fictitiously concocted
section under which the co-accused need not do anything because the act done
by the principal accused would nail the co-accused also on the ground that such
act was done by that single person in furtherance of common intention of all.
But sec. 34 is intended to meet a situation wherein all the co-accused
have also done something co-constitute the commission of criminal
act.

* Even the concept of presence of the co-accused is not a necessary

requirement to attract sec. 34 e.g. the co-accused can remain a little away and
supply weapons to the participating accused either by throwing or by catapulting
them so that they can he used to inflict injuries on targeted person: Or, one of
such persons, in furtherance of common intention overseeing the actions from a
distance through binoculars can give instructions to the other accused through
mobile phones as to how effectively the common intention can be implemented.

* Thus, to attract sec. 34, two postulates are indispensable:

(I) the criminal act (consisting of series of acts) should have been done not by
one person;
(2) Doing of every such individual act cumulatively resulting in the commission
of criminal offence should have been in furtherance of the common intention of
all.

* The act mentioned in sec. 34 need not be an overt act, even an illegal
omission to do a certain act in a certain situation can amount to an act.

* The accused who only keeps the common intention in his mind, but does not
do any act at the scene, can not be convicted with the aid of sec. 34.

* There may be other provision in IPC like Sec. 120-B or Sec. 109 which could
be invoked to catch such non participating accused. Thus participation in the
crime in furtherance of the common intention is sine quo non under sec.34.

Chapter IV : General Exceptions In Ram Bahadur Thapa Vs. State of Orissa (AIR 1960 Ori 61) {a case
related to ghost)
76. Act done by a person bound, or
by mistake of fact believing
himself bound, by law In Queen Vs. Dudley & Stephens {Lottery between A, B & C and C was eaten
Nothing is an offence which is done by up)
a person who is, or who by reason of a
mistake of fact and not by reason of a
mistake of law in good faith believes In U.S. Vs. Holmes {Captain threw some people to save the ship drowning)
himself to be, bound by law to do it.

Section 84: Act of a person of-unsound mind - (Nothing is an offence

Illustrations
(a) A, a soldier, fires on a mob by the
which is done by a person who, at the time of doing it, by reason of,
order of his superior officer, in unsoundness of mind, is incapable of knowing the nature of the act, or that he is
conformity with the commands of the doing what is either wrong or contrary to law.)
law. A has committed no offence.
(b) A, an officer of a Court of Justice,
being ordered by that Court to arrest State of Rajasthan Vs. Shera Ram [(2012) 1 SCC 602]
Y, and, after due enquiry, believing Z
to be Y, arrests Z. A has committed no
offence. Bapu Alias Gujraj Singh Vs. State of Rajasthan [(2007) 8 SCC 66]
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 14

{held that tin accused is not protected u/s 84 if he knew that what he was doing
77. Act of Judge when acting was wrong, even if he didn’t know that it was contrary to law, and also if he
judicially knew that what he was doing was contrary to law even he did not know that it
Nothing is an offence which is done by
a Judge when acting judicially in the
was wrong, He must be ignorant of both i.e. it was wrong as well as contrary to
exercise of any power which is, or law.}
which in good faith he believes to be,
given to him by law.
Seralli Wali Mohammad Vs. State of Maharashtra (1972 SC)
{the accused was charged and committed u/s 302 IPC for having caused the
78. Act done pursuant to the
judgment or order of Court death of his wife and a female child with a chopper. Rejecting the plea of
Nothing which is done in pursuance of, insanity the Hon’ble Supreme Court observed that the law presumes every
or which is warranted by the judgment person of the age of discretion to be sane unless the contrary is proved. It
or order of, a Court of Justice; if done
whilst such judgment or order remains
would be most dangerous to admit the defence of insanity upon arguments
in force, is an offence, notwithstanding derived merely from the character of the crime. The mere fact that no motive
the Court may have had no jurisdiction was proved as to why the accused murdered his wife and child, nor the fact that
to pass such judgment or order, he made no attempt to ran away when the door was broken, could not indicate
provided the person doing the act in
good faith believes that the Court had that he was insane or that he didn’t have the necessary mens rea for the
such jurisdiction. commission of the offence.)

79. Act done by a person justified, Dayabhai Chaganbhai Thakkar Vs. State of Gujarat (AIR 1964 SC 1563), 3
or by mistake of fact believing
himself justified, by law
Judge Bench, Subba Rao J.) {held that the word ‘wrong’ should be read as moral
Nothing is an offence which is done by wrong and not something which is contrary to law because contrary to law has
any person who is justified by law, or been specifically provided. The court also emphasis on unsoundness of mind at
who by reason of a mistake of fact and the time of commission of offence.
not by reason of a mistake of law in
good faith, believes himself to be
justified by law, in doing it. Brij Kishore Pandey Vs. State of Uttar Pradesh (1971 SC_____), 3 Judge
Bench, Hidaytullah J, delivered the judgment) {held that irresistible impulse is
Illustration not covered under sec. 84, therefore, an accused cannot take the defence of
A sees Z commit what appears to A to
be a murder. A, in the exercise, to the
irresistible impulse because in this there is no complete loss of cognitive
best of his judgment exerted in good faculties.)
faith, of the power which the law gives
to all persons of apprehending
murderers in the fact, seizes Z, in order R. Vs. Daniel McNaughten (1843, House of Lords) {in the cases of total
to bring Z before the proper insane delusion the accused has certain hallucination and he believes in certain
authorities. A has committed no circumstances which do not really exist and under such belief the accused does
offence, though it may turn out that Z
was acting in self-defence.
the act to commit the offence. Since the elements of unsoundness of mind are
proved in such a case, it will be a complete defence.
-----------------------------------------------------------------------------------
80. Accident in doing a lawful act:
Nothing is an offence which is done by
accident or misfortune, and without 86. Offence requiring a particular intent or knowledge committed by
any criminal intention or knowledge in
the doing of a lawful act in a lawful one who is intoxicated : In cases where an act done is not an offence unless
manner by lawful means and with done with a particular knowledge or intent, a person who does the act in a state
proper care and caution. of intoxication shall be liable to be dealt with as if he had the same knowledge
as he would have had if he had not been intoxicated, unless the thing which
Illustration intoxicated him was administered to him without his knowledge or against his
A is at work with a hatchet; the head
will.
flies off and kills a man who is standing
by.
Basdev Vs. State of Pepsu (AIR 1956 SC 488) {held that Sec. 86 basically a
Here, if there was no want of proper rule of presumption and applies in those cases where the accused under state of
caution on the part of A, his act is voluntary intoxication has committed such an offence which requires a particular
excusable and not an offence.
intent or knowledge to prove the offence and in such a case if it was a voluntary
intoxication, then even if the intent is not possible to be proved because of
81. Act likely to cause harm, but
done without criminal intent, and degree of intoxication, knowledge of the consequence will be imputed upon the
to prevent other harm: accused.
Nothing is an offence merely by reason
of its being done with the knowledge
that it is likely to cause harm, if it be It was clarified in BASDEV case that the cases where degree of intoxication is
done without any criminal intention to not very high and it is possible to prove the intent by conduct then there is no
cause harm, and in good faith for the need to raise the presumption of sec. 86. It was also held that the first part of
purpose of preventing or avoiding
other harm to person or property. sec. 86 talks about intent or knowledge whereas the latter part presumes only
knowledge. This is because intent can’t be presumed rather intent has to be
Explanation. --It is question of fact in
proved upon the specific circumstances of the case and therefore such a
such a case whether the harm to be presumption is not raised u/s 86.}
prevented or avoided was of such a -----------------------------------------------------------------------------------
nature and so imminent as to justify or
Right of Private Defence:
excuse the risk of doing the act with
the knowledge that it was likely to
cause harm. Sikandar Singh and Ors. Vs. State of Bihar [(2010) 7 SCC 477, Decided on
July 9 2010, DK Jain and RM Lodha, JJ.] {The court narrated the object of
Illustrations providing right of private defence of body as well as property as follows: “The
(a) A, in a great fire, pulls down
houses in order to prevent the
basic principle underlying the doctrine of the right to private defence is that
conflagration from spreading. He does when an individual or his property is faced with danger and immediate help from
this with the intention in good faith of the state machinery is riot possible, that individual is entitled to protect himself
saving human life or property. Here, if and his property.
it be found that the harm to be
prevented was of such a nature and so
imminent as to excuse A's act. A is not Thereafter the court observed on the quantum of force used to ward off the
guilty of the offence.
threat as follows: “Force used by a person to protect himself or his property
should not be grossly disproportionate to that needed to ward off the threat
82. Act of a child under seven
years of age:
from the aggressor.”
Nothing is an offence which is done by
a child under seven years of age. It added that it would be difficult to quantify how much force was justifiable in
exercise of the right. The Court observed: “The means and the force a
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83. Act of a child above seven and threatened person adopts at the spur of the moment to ward off danger and to
under twelve of immature
understanding
save himself or his property cannot be weighed in golden scale.
Nothing is an offence which is done by
a child above seven years of age and -----------------------------------------------------------------------------------
under twelve, who has not attained
sufficient maturity of understanding to Section 100 fifthly i.e. an assault with the intention of kidnapping or
judge of the nature and consequences abducting
of his conduct on that occasion.

Vishwanath Vs. State of UP (AiR 1960 SC 67) {held that although abduction
84. Act of a person of-unsound
mind
per se is not an offence, irrespective of this a person has right of private defence
Nothing is an offence which is done by to cause death of the aggressor against such forceful abduction u/s 100. There
a person who, at the time of doing it, is no need to prove that abduction was being committed for any illegal
by reason of, unsoundness of mind, is purposes. The court held that the moment there is an assault with intention to
incapable of knowing the nature of the
act, or that he is doing what is either abduct, the right of private defence is available. It would not be right to expect
wrong or contrary to law. from a person who is being abducted by force to pause and consider whether
the abductor has further intention or not.
86. Offence requiring a particular
intent or knowledge committed by
one who is intoxicated
-----------------------------------------------------------------------------------
In cases where an act done is not an Effect of acquittal of person committing the offence on Abettor
offence unless done with a particular
knowledge or intent, a person who
does the act in a state of intoxication Jamuna Singh Vs. State of Bihar (AIR 1967 SC 553) {held that it cannot be
shall be liable to be dealt with as if he held in law that a person cannot ever be convicted of abetting a certain offence
had the same knowledge as he would when the person alleged to have committed that offence in consequence of the
have had if he had not been
intoxicated, unless the thing which
abetment has been acquitted. The question of the abettor’s guilt depends on the
intoxicated him was administered to nature of the act abetted and the manner in which the abetment was made. The
him without his knowledge or against offence of abetment was complete when the alleged abettor has instigated
his will. another or engaged with another in a conspiracy to commit the offence. It is not
necessary for the offence of abetment by instigation and conspiracy that the act
abetted must be committed.

It is only in the case of a person abetting an offence by intentionally aiding to

commit that offence that the charge of abetment against him would be expected
to fail when the person edtohave committedthe offenceis.

-----------------------------------------------------------------------------------
Difference between Section 107(b) and 120A

State (NCT of Delhi) Vs. Navjot Sandhu (AIR 2005 SC 3820) {the court
explained the differences as follows: “Earlier to the introduction of Section 120-A
and B, conspiracy per se was not an offence under the Indian Penal Code except
in respect of the offence mentioned in Section 121-A. However, abetment by
conspiracy was and still remains to be an ingredient of abetment under clause
secondly of Section 107 of IPC. The punishment therefor is provided under
various sections viz. Section 108 to 117. Whereas under Section 120A, the
essence of the offence of criminai conspiracy is a bare agreement to commit the
offence, the abetment under Section 107 requires the commission of some act
or illegal omission pursuant to the conspiracy. A charge under Section 107/109
should therefore be in combination with a substantive offence, whereas the
charge under Section 120-Al 120-B could be an independent charge

Ingredients of criminal conspiracy

Yogesh alias Sachin Jagdish Joshi Vs. State of Maharnshtra [(2008)

105 CC 394] {The Hon’ble Apex Court laid down the essential ingredients of
section 120A and held as follows:
* The basic ingredients of the offence of criminal conspiracy are: (i) an
agreement between two or more persons; (ii) the agreement must relate to
doing or causing to be done either (a) an illegal act; or (b) an act which is not
illegal in itself but is done by illegal means. It is therefore, plain that meeting of
minds of two or more persons for doing or causing to be done an illegal act or
an act by illegal means is sine quo non of criminal conspiracy. Yet, a conspiracy
is always hated in secrecy and it is impossible to adduce direct evidence of the
common intention of the conspirators. Therefore, the meeting of minds of the
conspirators can be inferred from the circumstances provedby the prosecution, if
such inference is possible.

* Existing of the conspiracy and its objective can be inferred from the
surrounding circumstances and the conduct of the accused. But the incriminating
circumstances must form a chain of events from which a conclusion about the
guilt of the accused could be drawn.

Mere Knowledge is not sufficient:

27). State Vs. Nalini (1999 SC, Rajiv Gandhi Assassination Case) {it has
been held that in order to prove a conspirator who had participated in particular
conspiracy liable, mere knowledge is not sufficient, rather it is needed to prove
that the conspirator had also agreed to the general purpose of the conspiracy
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28). State (NCT of Delhi) Vs. Navjot Sandhu [(AIR 2005 SC 3820), (2005)
11 SCC 600, Decided on Aug 4, 2005] {2 Judge Bench, P Venkaramareddy and
P.P. Naolekar, JJ.., held that mere knowledge of the conspiracy is not sufficient
rather it is needed to prove that the conspirator had also agreed to the general
purpose of the conspiracy.

The Court in this case has held in Pam 103 (as per SCC Citation) that:”We do
not think that the theory of agency can be extended thus far, that is to say, to
find all the conspirators guilty of the actual offences committed in execution of
the common design even if such offences were ultimately committed by some of
them, without the participation of others. We are of the view that those who
committed the offences pursuant to the conspiracy by indulging in various overt
acts will be individually liable for those offences in addition to being liable fbr
criminal conspiracy; but, the non participant conspirators cannot be found guilty
of the offence or offences committed by the other conspirators. There is hardly
any scope for the application of the principle of agency in order to find the
conspirators guilty of a substantive offence not committed by them. Criminal
offences and punishments therefor are governed by statute. The offender will be
liable only if he comes within the plain terms of the penal statute. Criminal
liability for an offence cannot be fastened by way of analogy or by extension of
common law principle.”)

Can a single person be convicted under section 120B

29) Topan Das Vs. State of Bombay (AIR 1956 SC 33) (4 persons were
charged under section 120B for the offence of criminal conspiracy. 3 out of 4
accused persons were acquitted by the court. Held that if after acquittal of other
accused, only one person remains, then in the absence of a charge that the
offence was committed by the named accused person along with other unnamed
accused persons, the effect of acquittal of all but one accused person is not valid
A single person cannot be convicted under sec. 120B.)

30) Bimbadhar Pradhan Vs. State of Orissa (AIR 1956 SC 469) {the court
held that a single person can be convicted under section 120B if there is any
approver who has given the statement with substantially involving himielf and
the accused in the offence or some other persons involved in the offence have
not been charged due to some reasons. The court in this case convicted a single
person u/s 120B on the basis of approver’s evidence and other corroborating
evidences.}

Membership of Banned Organisation

State of Kerela Vs. Raneef [(2011) 1 SCC 784, 03-02-2011, Markandey Katju
and Gyan Sudha Mishra, JJ] {held that mere membership of banned organisation
is itself not an offence)

Section 141, 149 Section 141, 149

31) Roy Fernandes Vs. State of Goa, (2012) 3 SCC 221 - (01-02-2012) -
Unlawful assembly not liable for unrelated actions of individual member - Acts
done in pursuance of common object for which members of unlawful assembly
could be held liable under Part I or Part II of S. 149 IPC will depend upon
circumstances in which incident took place and conduct of members of unlawful
assembly, including weapons they carried or used on the spot. But sudden
action of one of the members of unlawful assembly does not constitute an act in
prosecution of common object of unlawful assembly and unlawful assembly is
not liable for unrelated actions of individual members. The effect of Section 149
may be different on different members of same unlawful assembly.

Latest case of Dara Singh

33) Rabindra Kumar Pal @ Dara Singh Vs. Republic of India [21-01-2011,
P. Sathasivam and B. S. Chauhan, JJ].

Culpable Homicide and Murder Secs. 299-302 Culpable Homicide and Murder.
- Secs. 299-302
34) Reg Vs. Govinda (1876 ILR 1 Bom 342) {Melvill 1., has explained murder,
Secs. 299-302 the difference between the culpable homicide and murder.)

35) Virsa Singh Vs. State of Punjab (AIR 1958 SC 465) {Facts: The appellant
Virsa Singh has been sentenced to imprisonment for life under section 302 of
the Indian Penal Code for the murder of the one Khem Singh. The appellant was
tried with five others under Sees. 302/149, 324/149 and 323/149 of the Indian
penal Code. lie was also charged individually u/s 302. The others were acquitted
of the murder charge by the first court but were convicted u/s 326, 324 and 323
r/w sec. 149 of IPC. On appeal they were all acquitted. The appellant was
convicted by the first court u/s 302 and his conviction and sentence were upheld
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by the Hon’ble High Court.

The SC (Vivian Bose J.) laid down that in order to bring a case within clause (3)
of sec. 300, the prosecution must prove the following:

* First, it must establish, quite objectively, that a bodily injury is present;

* Secondly, the nature of the injury) must be proved; these are purely objective
investigation; -

* Thirdly, it must be proved that there was an intention to inflict that particular
bodily injury that is to say, that it was not accidental or unintentional & that
some other kind of injury was intended. This is subjective investigation.

* fourthly, it must be proved that the injury of the type just described made up
of the three elements set up above, is sufficient to cause death in the ordinary
course of nature. This part of the inquiry is purely objective and inferential and
has nothing to do with the intention of the offender.

36) State of A P. Vs. Royavarapu Punnayya (AIR 1977 SC 45) {the court
held as follows:
* The difference between the second clause of section 299 and clause ‘thirdly’ of
section 300 to one of degree of probability of death resulting from the intended
bodily injury. To put it more broadly, it is the degree of probability I of death
which determines whether the culpable homicide is of the gravest, medium or
lowest degree. The word likely in section 299 conveys the sense of probable as
distinguished from a mere possibility. The worth ‘bodily injury.... sufficient in the
ordinary course of nature to cause death’, in clause ‘thirdly’ of section 300, mean
that death will be the most probable result of the injury having regard to the
ordinary course of nature.

* the expression ‘bodily injury’ in clause thirdly of sec. 300 includes also its
plum!, so that the clause would cover a case where nil the injuries intentionally
caused by the accused are cumulatively sufficient to cause the death in the
ordinary course of nature, even if none of those injuries individually measures
upto such sufficiency.}

37) Augustine Saldanha Vs. State of Karnataka (AIR 2003 SC 3843) {the
court observed that in the scheme of IPC, culpable homicide is genus and
murder its specie. All murder are culpable homicide but not vice versa. Speaking
generally culpable homicide sans special i characteristics of murder is culpable
homicide not amounting to murder. For the purpose of fixing punishment
proportionate to the gravity of generic offence, the IPC practically recognizes
three degree of culpable homicide. The first is, what may be called, “culpable
homicide of first degree”. This is the gravest form of culpable homicide which is
defined in section 300 as murder. The second may be termed as “culpable
homicide of second degree” punishable under first part of section 304. The
lowest degree of culpable homicide which may be termed as “culpable homicide
of third degree” is punishable under second part of section 304.

Even single blow is enough for conviction u/s 302 (thirdly)

38) Gudar Dusadh Vs. State of Bihar (AIR 1972 SC 952) (One lathi blow was
inflicted on the head which proved to be fatal. While upholding the conviction
under section 302 of the Penal Code, a three judge bench of the SC laid down
the law end speaking tbr the court, H.R. Khanna, J., observed following: “The
fact that the appellant gave only one blow on the head would not mitigate the
offence of the appellant and make him guilty of the offence of culpable homicide
not amounting to murder. The blow on the head of the deceased with lathi was
plainly given with some force and resulted in 3” long fracture of the left parietal
bone. The person died instantaneously and as such, there arose no occasion for
giving a second blow to him. As the injury on the head was deliberate and not
accidental and as the injury was sufficient in the ordinary course of nature to
cause death, the case against thc appellant would fall squarely within the ambit
of clause ‘3rdly’ of section 300 of IPC.)

39) Jai Prakash Vs. State (Delhi Admn.) [1991) 2 scc 32] {it is also a three
judge bench decision. A single blow was inflicted on the chest with a knife and
the same proved to be fatal. Conviction under section 302 was upheld by the
court following the judgment of Virsa Singh case and Gudar Dusadh case.

40) State of Karnataka Vs. Vedanayagam [(1995) 1 SCC 326] {the accused
inflicted a single knife blow on the chest resulting in instant death. The court
convicted the accused under section 302 while observing that: “there is no
doubt whatsoever that the accused intended to cause that particular injury on
the chest which necessarily proved fatal. Therefore, clause thirdly of section 300
IPC is clearly attracted.)

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41) Mahesh Balmiki Vs. State of M.P. [(2000) 1 SCC 319] {Adverting to the
contention of the single blow, the court held that there is no principle that in all
cases of a single blow section 302 IPC is not attracted.

42) Dhupa Chamar Vs. State of Bihar [(2002) 6 SCC 506] (the accused
inflicted a single bhala blow on the chest of the victim resulting in instantaneous
death. Intention of the accused to inflict the particular injury is proved and it
also proved that the injury is sufficient in the ordinary course of nature to cause
death. The court upheld the conviction of the appellant u/s 302.}

43) Prahlad Krishnakant Path Vs. State of Maharashtra [(2006) 9 SCC

211] {The SC applied the rationale of above mentioned cases in upholding the
conviction of the appellant u/s 302 as intention to cause the inflicted injury is
proved and it is also proved that the injury is sufficient in the ordinary course of
nature to cause death.)

Fourthly of section 300 (Knowledge)

44) Emperor Vs. Dhirajia [ILR (1940) All 647] {a village woman left her home
with her six months old baby in her arms on account of her husband’s ill
treatment; after she had gone some distance from the home, she turned around
and saw her husband pursuing her. She became panicky and jumped down into
a well nearby with the baby in her arms. The baby died but the woman survived.
The court held that there was an excuse for incurring the risk of causing death,
thus she was found guilty under section 304 and not u/s 302 for murder
(murder under clause fourthly of section 300)}

45) Gyarsibai Vs. The State (AIR 1953 MB. 61) {In this case also after the
quarrel with sister in law, the accused left the house with her three children and
jumped into a well. Children died but she survived. The court held her guilty u/s
300 clause fourthly and punished u/s 302 for murder and u/s 309 for attempt to
commit suicide. Hère the excuse was not sufficient to incurring the risk of
causing death.}

Exception I to sec. 300 i.e. Exception I to sec. 300 i.e. grave and sudden provocation
grave and sudden provocation
46) K.M. Nanawati Vs. State of Maharashtra (AIR 1962 SC 605) {speaking
through Subba Rao J., the court held that under exception I to section 300
culpable homicide is not murder if the following conditions are complied with:
a) The deceased or someone else gave provocation to the accused.
b) The provocation must be grave.
c) The provocation must be sudden.
d) The offender, by reason of the said provocation, shall have been deprived of
the power of self control.
e) He should have killed the deceased during the continuance of the deprivation
of the power of self control.
f) The offender must have caused the death of the person who gave the
provocation or that of any other person by mistake or accident)

Section 303 i.e. punishment Section 303 i.e. punishment for murder by life convict
for murder by life convict
47) Mithu Singh Vs. State of Punjab (AIR 1983 SC 473) {The Hon’ble Apex
Court has declared sec. 303 ultra vires the Constitution. A five judge Constitution
Bench, presided over by the then Chief Justice Y.V. Chandrachud unanimously
struck down section 303 IPC on the ground that it violates Article 14 as also the
right conferred in Article 21 of the Constitution, ‘no person shall be deprived of
his life and personal liberty except according to procedure established by law’.
The court held that the assumption that life convicts are a dangerous breed of
humanity as a class, is not supported by any scientific data and so cannot stand
outside Article 14 of the Constitution. The fact that the court has no option u/s
303 IPC but to impose death sentence, no matter what the motivation of the
crime or the circumstances in which it was committed, was held arbitrary and
against the canons of criminal jurisprudence. The right of the accused available
u/s 235 (2) CrPC, namely, the right to be heard on the question of sentence, is
declined to him if the count has no option but to impose death sentence. It is
meaningless to hear the accused on the question of sentence and the court to
state its special reason for imposing the sentence of death as required u/s
354(3) CrPC becomes superfluous}

Section 304 Part II Section 304 Part II and section 304A

and section 304A
48) Alister Anthony Pareira Vs. State of Maharashtra [(2012)2 SCC 648,
Judgment by R.M Lodha, J {The prosecution case against the appellant in this
case as follows: the repair and construction work of Carter Road, Bandra at the
relevant time ‘was being’ carried out by New India Construction Co. The
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 19

labourers were engaged by the construction company for executing the work.
The temporary sheds were put up for the residence of labourers in the
pavement, In the night of 11-11-2006 and 12-11-2006, the labourers were
asleep in front of their huts on the pavement. Between 3:45 am to 4 am that
night, the appellant While driving the car bearing registration no MB 01 R 580
rashly and negligently with the knowledge that people were asleep on the
footpath rammed the car over the pavement and thereby caused the death of
seven persons and injuries to eight persons.

The charges were framed under section 304 Part II, section 338, section 337,
section 336 and section 279 IPC. The second Ad-hoc Additional Sessions Judge,
Mumbai convicted the appellant for the offences punishable under 304A and 337
JPC. The Hon’ble High Court set aside the acquittal of the appellant under
section 304 Part II IPC, and convicted him for the offence under section 304
Part B, section 338 and section 337 IPC. The following question arise in this case
for consideration by The Hon’ble Apex Court:

A) Whether indictment on the two charges, namely the offences punishable

under section 304 part II IPC and offence punishable under section 338 IPC is
mutually destructive and legally permissible? In other words, whether it is
permissible to try and convict a person for the offence punishable under section
304 part B IPC and the offence punishable under section 338 IPC for the single
act of same transaction?

B) Whether by not charging the appellant of drunken condition and not putting
to him the entire incriminating evidence led in by the prosecution, particularly
the evidence relating to the appellant’s drunken condition, at the time of his
examination under section 313 CrPC, the trial and conviction of appellant got
affected?

C) Whether prosecution evidence establishes beyond reasonable doubt the

commission of the offences by the appellant under section 304 part II IPC,
section 338 IPC and section 337 IPC?

D) Whether sentence awarded to the appellant under section 304 part II IPC
requires any modification?

The court held that there is no impediment in law for an offender being charged
for the offence under section 304 part II IPC and also under section 337 and
338 IPC. The two charges under section 304 part H IPC and section 338 JPC can
legally coexist in a case of single rash or negligent act is done with the
knowlegof likelihood of its dangerous consequences.

With regard to conviction of accused under section 304 part II of IPC, the court
held that “we find no justifiable ground to take a view different from that of the
Hon’ble High Court and have no hesitation in holding that the evidence and
material on record prove beyond reasonable doubt that the appellant can be
attributed with knowledge that his act of driving the vehicle at a high speed in a
negligent manner was knew that one result would very likely be that people who
are asleep on the pavement may be hit, should the vehicle go out of control.”
Thus the court upheld the convic section 304 part II of IPC.

The Hon’ble Apex Court also refused to reduce the quantum of punishment as
awarded by the Hon’ble High Court.

Difference between Section Difference between Section 304 and section 304A
304 and section 304A 49) Shankar Narayan Bhadolkar Vs. State of Maharashtra (2004 Crl.LJ
1778) ...... it was be noted that the said provision relates to death caused by
negligence. Section 304A applies to cases where there is it no intention to cause
death and no knowledge that the act done in all probabilities will cause death.
The provision relating to offences outside the range of section 299 and 300 of
IPC, applies only to such acts which are rash and negligent and are directly the
cause of death of another person. Rashness and negligence are essential
elements under section 304A. It carves out a specific offence where death is
caused by doing a rash or negligent act and that act doesn’t not amount to
culpable homicide under section 299 or 300 IPC. Doing an act with the intent to
kill a person or with knowledge that in all probability it will cause death is
culpable homicide. When intent and knowledge is the direct motivating force
behind the death of a person then 304A has no application.”)

Section 304A i.e. causing Section 304A i.e. causing death by rashness or by negligence.
death by rashness or by
negligence. 50) Jacob Mathew Vs. State of Punjab [(2005) 6 SCC I {3 Judge Bench
consisting of R C Lahoti, CJI., GP. Mathur and P.K. Balasubramanyam, JJ) In this
case the court cited another judgment of Suresh Gupta (Dr.) Vs. Govt OF NCT of
Delhi (2004 SC, 2 Judge Bench) {the court held as follows:

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* Guilty mind i.e. mens rea required for sec. 304A is the element of reckless-
ness or the indifference in the attitude of mind towards the consequence of the
act.

* The court upheld the decision of the Suresh Gupta case that for medical
profession there is a need of freedom of action to the doctors so as to enable
them to take the necessary risk and therefore, if they are held liable for simple
lack of care, an error of judgment or an accident, then that will be a great
hindrance in their profession as if they are aware that if mere an error of
judgment etc. would result into a criminal liability, then that would curtailed to a
great degree their freedom of action.

*A professional may be held liable for negligence on one of the two findings:
either he was not possessed of the requisite skill which he professed to have
possessed, or, he did not exercise, with reasonable competence in the given
case, the skill which he did possess.

*The jurisprudential concept of negligence differs in civil and criminal law. What
may be negligence in civil law may not be necessarily be negligent in criminal
law. For negligence to amount to an offence te elements of mens rea must be
shown to exist. For an act to amount criminal negligence, the degree of
negligence should be much higher i.e. gross or of a very high degree.

* The word “gross” has not been used in Sec. 304A IPC, yet it is settled that in
criminal law negligence or recklessness, to be so held, must be of such high
degree as to be “gross”. The expression rash or negligent act” occurring in sec.
304A has to be read as qualified by the word “grossly”.

51) Cherubin Gregory Vs. State of Bihar (1964 SC) {case related to latrine
use. The voltage of the current passing through the naked wire being high
enough to be lethal, there could be no dispute that charging with it current of
that voltage was a rash act done in reckless disregard of the serious
consequences to people coming into contact with it for which the accused is
solely responsible under section 304A IPC.)

Section 304B i.e. Dowry death Meaning of the expression ‘soon before her death’

52) Kaliyaperumal Vs. State of Tamil Nadu (AIR 2003 SC 3828) {the court held
as follows:
* The expression ‘soon before her death’ used in the substantive section 304B
IPC and sec. 113B of the Evidence Ac is present with the idea of proximity test.

*No definite period has been indicated and the expression ‘soon before her
death’ is not defined.

*The determination of the period will depend upon the facts and circumstances
of the each case.

*There must be existence of a proximate and live link between the effect of
cruelty based on dowry demand and the concerned death. If alleged incident of
cruelty is remote in time and has become stale enough not to disturb mental
equilibrium of the woman concerned, it would be of no consequence.

Section 306 i.e. Abetment to 53) Netai Dutta Vs. State of West Bengal (2005 SC) { the court laid down
suicide the following ingredients of section 306:
* The actual commission of suicide
* The abetment to suicide
* Suicide being committed as a consequence of the abetment.}

54) Tej Singh Vs. State of Rajasthan (AIR 1958 Raj 169) {held that
encouraging a widow to commit Sati is abetment to suicide u/s 306 of IPC.}

Outraging the modesty of Outraging the modesty of woman, section 354 & Insulting the modesty of
woman, section 354 & woman, section 509
Insulting the modesty of
woman, section 509 55) State of Punjab v Major Singh (AIR 1967 SC 63> fThe Hon’ble Supreme
Court has held that in order to constitute the offence under sec 354 the reaction
of the woman concerned is not the test of the offence. In this case, the accused,
Major Singh, had caused injuries to the vagina of a seven and a half months old
infant girt by fingering. He walked into the room where the child was sleeping at
9.30 pm, the after having switched off the lights, he stripped himself naked
below the waist, knelt over her and performed indecent acts of unnatural lust on
her private part rupturing her hymen and causing a tear 3/4 th inch long inside
her vagina.
It was urged before him before the lower courts that since section 354 states
that the offender must have ‘outraged her modesty’ and in this case, since since
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 21

the child concerned had not developed sufficient sex instinct, it could not be said
that her modesty was violated. It was urged that a reasonable man would not
say that a female child of seven and a half months had womanly modesty. But
this contention, though accepted by the lower courts, was rejected by the
Hon’ble Supreme Court and the accused was found guilty u/s 354. Justice
Bachawat stated as follows:

“The essence of a woman’s modesty is her sex. The modesty of an adult female
is writ large on her body. Young or old, intelligent or imbecile, awake or
sleeping, the woman possesses modesty capable of being outraged. Whoever
uses criminal force to her with intent to outrage her modesty commits an
offence punishable under section 354. The culpable intention of the accused is
the crux of the matter, The reaction of the woman is veiy relevant, hut its
absence is not always decisive, as for example, when the accused with a corrupt
mind stealthily touches the flesh of a sleeping woman. She may be an idiot, she
may be under the spell of anesthesia, she may be sleeping, she may be unable
to appreciate the significunce of the act, nevertheless, the offender is punishable
under the section. A female of tender age stands on a somewhat different
footing. Here body is immature, and her sexual powers are donuant In this case,
the victim is a baby of seven and half months old. She has not yet developed a
sense of shame and has no awareness of sex. Nevertheless, from her very birth
she possesses the modesty which the attribute of her sex.”

56) Rupan Deol Bajaj Vs. Kanwar Pal Singh Gill & Anr (AIR 1996 SC 309)
{the court held as follows;
* Slapping on the posterior of a woman in public gaze, having regard to
sequence of events prima facie amounted to outraging and insulting her
modesty within the meaning of section 354 and 509 respectively.

* High ranking officer behaving indecently with a lady officer outraging and
insulting her modesty in presence of a distinguished gathering - held, offence
not saved under sec. 95. It held that when an offence relates to the modesty of
a woman, under no circumstances could it be termed trivial.

57) Apparel Export Promotion Council Vs. A.K. Chopra [(1991) 1 SCC 110]

Kidnapping and abduction, Kidnapping and abduction, secs. 359-374

Secs. 359-374
58) S. Varadarajan Vs. State of Madras (AIR 1965 SC 942)) {A girl who was
on the verge of the attaining majonty voluntarily left her father’s house,
arranged to meet the accused at a certain place and went to the sub-registrar’s
office, where the accused and the girl registered an agreement to marry. There
was no evidence whatsoever that the accused had ‘taken’ her out of the lawful
guardianship of her parents, as there was no active part played by the accused
to persuade her to leave the house. The Hon’ble Apex Court acquitted the
accused and observed as follows:

“....There is a distinction between ‘taking’ and ‘allowing a minor to accompany a

person. The two expressions are not synonymous where the minor alleged to
have been taken by the accused person left her father’s protection knowing and
having capacity to know the full import of what she was doing, voluntarily joins
the accused... cannot be said to have taken her away from the keeping of her
lawful guardian. Something more has to be shown in a case of this kind and that
is some kind of inducement held out by the accused person or an active
participation by him in the formation of the intention of the minor to leave the
house of the guardian.”

59) Thakorlal D Vadgama Vs. State of Gujarat (AIR 1973 SC 2313) {it was
held that the word ‘entice’ connotes the idea of inducement or pursuance by
offer of pleasure or some other form of allurement. This may work immediately
or it may create continuous and gradual but imperceptible impression
culminating after some time in achieving its ultimate purpose of successful
inducement.)

Rape, Secs. 375-376, 376A- Is promise to marry the victim a Misconception of fact vitiating her consent?
376D
60) Deelip Singh alias Dilip Kumar Vs. State of Bihar [(2005) 1 SCC 88]
{consent given by a woman for sexual intercourse believing the man’s promise
to marry her would fall within the expression “without her consent” only if it is
established that from very inception the man never really intended to many her
and the promise was a mere hoax.

However, the court held that if a person coa.mits the breach of promise to marry
then he will be liable to pay damages to the promisee Accordingly the accused in
this case was held to he liable to pay damage for breach of premise but held not
liable under section 376 as from the inception his intention was to many the girl
but the matter could not be finalized due to stiff opposition by his father.)

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61) Yedla Srinivasa Rao v State of A.P. (2006) 11 SCC 615) {a consent
obtained by misconception while playing a fraud is not a consent. Where a
person from the very beginning without any intention to perform it promises to
marry the girl and the girl in belief of the promise gave consent for sexual
intercourse, the consent given by the girl will not be a consent within the
meaning of section 90 of the Act and it will amount to sexual intercourse without
the consent of the girl/woman.

Penetration is necessary for the offence of rape

62) Tarkeshwar Sahu Vs. State of Bihar [(2006) 8 SCC 560) {penetration
of male organ into private parts of victim/prosecutrix, held, is necessary to
constitute the said offence. Slightest penetration, with or without any emission
of semen or even an attempt at penetration is sufficient. Rupture of hymen is
not necessary, in this case, appellant had forcibly taken prosecutrix/victim to his
gumti, but before he could ravish her, hearing alarm raised by prosecutrix, the
father of prosecutrix and other villagers assembled there and rescued the
prosecutrix. Held, in absence of any attempt to penetrate, conviction under u/s
376/511 was wholly illegal and unsustainable. However, ingredients of offence
u/s 366 and 354 IPC being present, appellant held guilty under the said
sections.}

63) Kopulla Venkat Rao Vs. State of A.P. (AIR 2004 SC 1874) {to constitute
the offence-of rape it is not at all necessary that there should be complete
penetration of the male organ with emission of semen and rupture of hymen.
Even partial or slightest penetration of the male organ within the labia majora or
the vulva or pudenda with or without any emission of semen or even an attempt
at penetration into the private part of the victim would be quite enough for the
purpose of section 375 and 376.}

Interpretation of the term ‘sexual intercourse’ and ‘penetration’

64) Smt Sudesh Jhaku Vs. KCJ & others [(1998) Crl.LJ 2428 (Del)] {the
Delhi High Court was urged to interpret the terms ‘sexual intercourse’ and
‘penetration’ used in sec. 375 in such a way as to bring within their ambit not
only penile-vaginal penetration but, also penetration of any part of his body (like
fingers) or any foreign object (like a stick or bottle) into bodily orifice of woman
(vagina, anus or mouth). The court held that ‘sexual intercourse’ and
‘penetration’ mean only the penile-vaginal penetration. It held that these terms
cannot be interpreted to bring their fold the vaginal penetration by fingers or
any other object. Dismissing the petition, the Hon’ble High Court held that it is
for the legislature and not for the judiciary to give wider interpretation to the
wotxls ‘sexual intercourse’ and ‘pcnetration’.}

Note: In 2004, Sakshi, a voluntary organization providing legal, medical and

psychological help to woman, through a public interest litigation, urged the
Hon’ble Supreme Court to issue a writ in the nature of declaration or any other
appropriate writ or direction declaring, inter alia, that ‘sexual intercourse’ as
contained in sec. 375 includes all forms of penetration (penile-vaginal, penile-
anal, penile-oral, finger- vaginal and object vaginal). With a view to avoiding
chaos and confusion in the law dealing with rape and in the interest of society at
large, The Hon’ble Apex Court also declined to alter the definition of ‘rape’
through judicial interpretation. Nevertheless, it hoped and trusted that the
parliament will give its serious consideration to the petitioner’s proposals for
reform.

172nd Law Commission Report accepted the contention of the Sakshi Foundation
and recommended amendment in the IPC to incorporate the suggestion of the
Sakshi Foundation.

Finally, the government has set up a high power committee to examine the
issues relating to review of Rape Laws, under the Chairmanship of Union Home
Secretary. The committee has formulated the draft “Criminal Law (Amendment)
Bill, 2010”, incorporating the points agreed at the High Powered Committee.
This bill has incorporated the recommendation of the 172 nd Law Commission
Report on amendment of section 375 of the Indian Penal Code.

Widely criticized judgments of Supreme Court

65) Tukaram Vs. State of Maharashtra [Mathura rape case (AIR 1979 SC
185)] {Mathura, an 18 year-old Harijan orphan girl, was living with her brother.
Both of them worked as labourers to earn a living. Mathura developed a
relationship with one Ashok and they decided to get married. Mathura’s brother
filed a complaint of kidnapping in the Desai Ganj Police Station. On his
complaint, Mathura, Ashok and two others, with whom Ashok was living, were
brought to the police station. The statements of Mathura and Ashok were
recorded and when they were about to leave, the accused asked Mathura to
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wait in the police station and told Ashok and others to move out. Immediately
thereafter, Ganpat, one of the police constables on duty, forcibly undressed the
Mathura and raped her despite protest and stiff resistance. Another constable
Tukaram also wanted to rape her, but he could not do so for the reason that he
was in a highly intoxicated condition.

The Bombay High Court convicted the accused Ganpat to rigorous imprisonment
for five years and Tukarani to rigorous imprisonment of one year. The Hon’ble
Supreme Court however, acquitted both of them and described Mathura’s story
as ‘tissue of lies’.)

An open letter to the Chief Justice of India [(1979) 4 SCC 1]

(Criticising the judgihent of the SC, Prof. Upendra Baxi and his few other
colleagues wrote an open letter protesting the judgment of Tukaram case.

Note: To nullify the effect of the Hon’ble Supreme Court judgment in the
Mathura case and other cases of that period, extensive amendments were
introduced to the Indian Penal Code 1860 and to the Evidence Act. Sees. 376A
to 376D were incorporated into the IPC and Sec. I 14A was introduced in the
Evidence Act.

Even a woman of easy virtue is entitled to privacy

66) State of Maharashtra Vs. Madhukar Narayan Mardikar (AIR 1991 SC

207) {the court held that even a woman of easy virtue is entitled to privacy and
no one can invade her privacy as and when he likes. So also it is not open to any
and every person to violate her person as and when he wishes. She is entitled to
protect her person if there is an attempt to violate it against her wish. She is
equally entitled to the protection of law. Therefore, merely because she is a
woman of easy virtue, her evidence cannot be thrown overboard).

67) State of Punjab Vs. Gurmit Singh (AIR 1996 SC 1393) {a woman, who
prior to the alleged non-consensual sexual intercourse, has lost virginity to
someone or has been promiscuous in her sexual behavior, has also a right to
refuse to submit herself to sexual intercourse with anyone and everyone. She is
not a vulnerable object or prey for being sexually assaulted by anyone and
everyone. Sexual intercourse wish a woman of loose moral character or who is
sexually immoral ‘without her consent’ or ‘against her will’, therefore, amounts to
rape.

The court in this case laid down following guidelines for trial of rape cases:
* Delay in lodging FIR is not material when properly explained.
* Testimony of prosecutrix (victim) in cases of sexual assault is vital and unless
there are compelling reasons which necessitates looking for corroboration of her
statement, the court should find no difficulty in convicting the accused on
prosecutrix testimony alone.
* Trial of sexual offences should be in camera and invariably by a lady judge
wherever available.
* Court must restrain making observation that probably the prosecutrix is a girl
of loose moral character.
* Court is under an obligation to see that prosecutrix is not unnecessarily
harassed and humiliated in cross examination in case of rape trial.

68) Recently on 26-04-2010 in Santhosh Moolya and another Vs. State of

Karnataka [(2010) 5 SCC 445]{ A Bench of P. Sathasivam and R.M. Lodha, JJ.,
held that in cases of rape, particularly if the victim is illiterate, her statement has
to be accepted in toto without further corroboration for convicting the accused.
The court observed that any statement of rape is an extremely humiliating
experience for a woman and until she is a victim of sex crime, she would not
blame anyone but the real culprit. The Court held that “while appreciating the
evidence of the prosecutrix, the court must always keep in mind that no self
respecting woman would put her honour at stake by falsely alleging commission
of rape on her, and therefore, ordinarily a look for corroboration of her
testimony is unnecessary and uncalled for.
Corroborative evidence is not an imperative component of judicial credence in
every case of rape.”

Suicide of the prosecutrix does not entitle acquittal

69) State of Karnataka Vs. Mahabaleshwar Gaurav Naik (AIR 1992 SC

2043) {Supreme Court held that merely because a victim is dead and
consequently could not be examined, could not be a ground to acquit an
accused, if there is evidence otherwise proving the guilt of the accused. Setting
aside the finding of the Hon’ble High Court, The Hon’ble Apex Court convicted
the accused under sec. 511 and 376.)

Can a woman be prosecuted for rape -

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70) Priya Patel Vs. State of M.P. and another [(2006) 6 SCC 263] {speaking
through Arijit Pasayat.J., it was held that under the definition of rape under
section 375 and 376 a woman cannot be prosecuted for gang rape even if she
facilitates the act of rape. The court held that by virtue of sec. 376(2) Expln. I a
woman cannot be convicted for rape. This is conceptually inconceivable since as
per the definition of rape in secs 375 and 376, rape can be committed only by a
man. Expression “in furtherance of their common intention” in see 376(2) Expln.
I relates to the intention to commit rape. A woman cannot be said to have an
intention to commit rape. However, question whether appellant-accused, a
woman, could be prosecuted for abetment of rape, has not been answered by
the court it has been left open for courts to decide.

71) Naz Foundation Vs. Govt of NCT of Delhi (2009 Del HC, 2 Judge Bench
Ajit Prakash Shah CJ., and Dr. S. Murlidhar J... Judgment delivered by Ajit
Prakash Shah, CJ.) {held that sec. 377 is violative of Article 14, 15 and 21 of the
Constitution insofar as it criminalizes consensual sexual acts between adult in
private. The provisions of sec. 377 will continue to govern non-consensual penile
non-vaginal sex and penile non-consensual sex involving minors.

* Violation of Article 14: It has been held violative of Article 14 as sec. 377
IPC makes no distinction between acts engaged in the public sphere and acts
engaged in private sphere. It also makes no distinction between consensual and
non consensual acts between adults. Consensual sex between adults in private
does not cause any harm to anybody. Public animus and disgust towards a
particular social group or vulnerable minority is not a valid ground for
classification under Article 14. Section 377 targets homosexual community as a
class and is motivated by an animus towards this vulnerable class of people.

* Violation of Article 15(1): It is violative of Article 15(l) of the Constitution.

Article 15(1) provides that there cannot be discrimination on the ground of sex
and the contention was that the word ‘sex’ in Article 15U) would include sexual
orientation as well. It was held that Article 15(1) includes not only sex with the
meaning of gender rather it includes sexual orientation i.e. a person with
homosexual orientation cannot be discriminated with a heterosexual oriented
person by virtue of Article 15(1).

* Violation of Article 21: It is violative of Article 21 as it violates the right of

privacy of an individual. Right to life and personal liberty under Article 21
includes the right of privacy as well and right to privacy includes freedom of
personal choice within one’s own private domain. -

* Constitutional morality: The Hon’ble Supreme Court observed that

Constitutional morality as incorporated in Article 14, 15 and 21 are more
sacrosanct than the public morality and therefore, violation of Constitutional
morality should not be allowed. The court observed that popular morality or
public disapproval of certain acts is not a valid justification for restriction of
fundamental right under Article 21. The court held that to stigmatise or to
criminalise homosexuals only on account ‘of their sexual orientation would be
against the constitutional morality}

Theft and extortion, secs. Theft

378-389
72) K.N Mehra Vs. State of Rajasthan (AIR 1957 SC 369) {the case of theft
of an aircraft. In this case the court explained the essential ingredients of the
offence of theft The court also explained the true meaning of dishonest intention
with reference to its definitions in ss. 23 and 24 of the IPC along with ‘wrongful
loss’ and ‘wrongful gain’:

“taking these two definitions together, a person can be said to have dishonest
intention if in taking the property it is his intention to cause gain by ‘unlawful
means’ of the property to which the person so losing is legally entitled. It is
further clear from the definition that the gain or loss contemplated need not be
a total acquisition or a total deprivation, but it is enough if it is temporary
retention of property by the person wrongfully gaining or a temporary ‘keeping
out’ of property from the person legally entitled.”

Temporary deprivation or dispossession is also Theft

73) Pyarelal Bhargav Vs. State of Rajasthan (AIR 1963 SC 1094) {the
accused was a superintendent in a government office. At the instance of
somebody, he got a file from the secretariat through the clerk and took the file
to his house for a day and made it available to a person to facilitate the removal
of some papers and insertion of some. Thereafter, the file was replaced. The
question before the Hon’ble Supreme Court was whether the act amounted to
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 25

theft. The Hon’ble Supreme Court held that to commit theft, one need not take
moveable property permanently out of the possession of another, with the
intention, not to return it to him. It would satisfy the definition if he took any
moveable property out of the possession of another person, though it intended
to return it later. When the file was unlawfully taken away from the department,
he deprived the department of the possession of file and caused wrongful loss to
the department.

Theft as between husband and wife

74) Pratibha Rani Vs. Suraj Kumar (AIR 1985 SC 628) {it was held that a
spouse may be guilty of theft if he/she dishonestly removes exclusive property
of the other.)

Robbery and dacoity, secs. Robbery and dacoity, secs. 390-402

390-402
Robbery
75) Harish Chandra Vs. State of Uttar Pradesh (AIR 1976 SC 1430) {If the
hurt is caused to overcome the resistance or to enable the carrying away of the
movable property, then also the offence will be robbery.} -

76) Trilok Singh Vs. Satya Deo (AIR I979 SC 850) {the complainant had
purchased a truck on a hire-purchase basis from finance corporation. The
complainant paid the first two monthly instalments and defaulted on payment of
the third instalment. According to the complainant, the accused in a high handed
manner came to his house and in spite of protests by his wife, forcibly, under
threat of anus, removed the truck and thus were said to have committed the
various offences of robbery and dacoity. The Hon’ble Supreme Court held that
the version of the complainant was very unnatural and untrustworthy. It held
that the seizure of truck was bonafide right exercised by the accused on the
failure of the complainant to pay the third instalment. Nobody was hurt on the
side of the complainant. Under these circumstances, it was held that no offence
of robbery or dacoity was made out.}

Dacoity

77) Ravi Shankar Singh Vs. State of Uttar Pradesh (AIR 1956 SC 441) {it
was held that for conviction for the offence of dacoity the minimum 5 persons
must be there, if one or more person s are acquitted by the court then rest of
the persons cannot be convicted for the offence of dacoity but they can only be
convicted for lesser offence of robbery under section 392.}

Cruelty against the woman by Cruelty against the woman by the husband or his relatives, sec. 498-A
the husband or his relatives,
sec. 498-A 78) Reema Aggarwal Vs. Anupam & Others (AIR 2004 SC 1418, the
judgment of the court was delivered by Arijit Pasayat, 3.) {it was held that
husband contracting second marriage during subsistence of earlier marriage can
be charged under sec. 304-B and 498-A. The court observed as follows:
“....There could be no impediment in law to liberally construe the words or
expressions relating to the persons committing the offence so as to rope in not
only those validly married but also any one who has undergone some or other
form of marriage and thereby assumed for himself the position of husband to
live, cohabitate and exercise authority as such husband over another woman.”)

The court further observed:

“....Legislation enacted with some policy to curb and alleviate some public
evil rampant in society and effectuate a definite public purpose or benefit
positively requires to be interpreted with a certain element of realism too and
merely pedantically or hypertechnically. The obvious objective was to prevent
harassment to a woman who enters into a marital relationship with a person and
later on, becomes a victim of the greed for money. Can a person who enters into
a marital arrangement be allowed to take shelter behind a smokescreen to
contend that since there was no valid marriage, the question of dowry does not
arise? Such legalistic niceties would destroy the purpose of the provisions. Such
hair splitting approach would encourage harassment to a woman over demand
of money.”

79) John Idiculla & Anr Vs. State of Kerela & Anr. [(2005) CrLJ 2935 (Ker)]
{the Hon’ble High Court ruled that if ‘second wife’, whose marriage is not strictly
legal but she is treated ‘as wife by the husband, relatives, friends or society,
commits matrimonial cruelty on the legally wedded wife of her alleged husband
cannot be allowed to wriggle out of the criminal liability under sec: 498-A on the
ground of invalidity of her marriage. And a ‘second wife’ can be considered to be
the ‘relative of the Husband’ for the purpose of sec 498-A and thereby she can
be held liable under sec. 498-A.

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Justifying its reasoning the Hon’ble High Court observed:

“...Non existence of a strictly legal marriage cannot be made a ground fat an

offending second wife to run away. The invalidity of the marriage can under no
circumstances be granted as a license to her to harass none other than the
legally wedded wife. She shall not be allowed to skip-out of the strong grip of
law. A court cannot remain divinely silent to forgive her or calmly shut its eyes to
this tragic situation, assert and justify that a second wife is not precisely referred
to in the section and hence she is not covered by Section 498-A, IPC.

Bigamy, secs. 494-495 Conversion of religion does not give license to commit Bigamy

80) Sarla Mudgal Vs. Union of India (AIR 1995 SC 1531) {the court has
ruled that change of religion does not permit a person to defeat the provisions
of law and give license to commit bigamy. The court held that when or the other
spouses i.e. husband or wife renounces his or her religion (e.g. Islam which
permits polygamy) in order to marry again during the life time of former accused
section 494 is attracted.
The court held as follows:

“A marriage celebrated under a particular personal law cannot be dissolved by

the application of another personal law to which one of the spouses converts
and the other refuses to do so. Where a marsiage takes place under Hindu Law
the parties acquire a status and certain rights by the marriage itself under the
law governing the Hindu marriage and if one of the parties is allowed to dissolve
the marriage by adopting or enforcing the new personal law, it would
tantamount to destroying the existing rights of the other spouse who continues
to be Hindu.”

The court further held that second marriage of an apostate husband would be in
violation of the rules of natural justice and as such it would be a void marriage
punishable under section 494 IPC for bigamy.

The court strongly advocated for enactment of a uniform civil code for all
citizens in conformity with Constitutional mandate under Article 44 of the
Constitution of India.

81) Lily Thomas Vs. Union of India (AIR 2000 SC 1650): The Hon’ble Apex
Court was approached to review Sarla Mudgal case on the ground that the
judgment in the impugned case is contrary to fundamental right to life and
liberty of freedom as enshrined in Article 20, 21, 25 and 26 of the Constitution.
Rejecting the review petition being without any substance the court affirmed its
earlier judgment of Sarla Mudgal. The court rightly said that change of religion
does not dissolve the marriage performed under Hindu Marriage Act, 1955. A
second marriage during the lifetime of the spouse would be void under sections
II and 17 of the Hindu Marriage Act, 1955 besides being an offence of bigamy
under section 494 IPC.

The Court observed “The second marriage solemnized by a Hindu during the
subsistence of first marriage is an offence punishable under the penal law.
Freedom guaranteed under Article 25 of the Constitution is such freedom which
does not encroach upon a similar freedom of the other persons. Under the
Constitutional scheme every person has a fundamental right not merely to
entertain the religious belief of his choice but also to exhibit his belief and ideas
in such manner which does not infringe the religious right and personal freedom
of others”

Regarding the plea that making a convert liable for bigamy under section 494 of
the Penal Code would be against Islam which permits polygamy, The Hon’ble
Apex Court observed that such a plea demonstrates the ignorance of the
petitioner’s about tenets of Islam and its teaching.

82) John Vallamattom Vs. Union of India (AIR 2003 SC 2902) {the court
even in this advocated for the enactment of the uniform civil code.)

Adultery Sec. 497 Constitutionality of section 497

83) Yusuf Abdul Aziz Vs. State of Bombay (AIR 1954 SC 321) {the Hon’ble
Supreme Court observed that section 497, IPC is not ultra vires under Article 14,
15 and 21 of the Constitution on the ground that it is only the man, who is held
liable for adultery and not the wife with whom adultery is committed. The wife is
saved from the purview of the section and is not punished as an abettor. Held
sex is a reasonable and sound classification accepted by the Constitution, which
provides that State can make special provisions for woman and children vide.
Article 15 clause 3 of the constitution.

84) Sowmithri Vishnu Vs. Union of India and another (AIR 1985 SC 1618)
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 27

{the petitioner challenged the validity of section 497 on the ground that it does
not confer any right on the wife to prosecute the husband or the woman with
whom her husband has done sexual intercourse. Rejected the contention the
court held that the provision does not violate Article 14 and 15 of the
Constitution. The court observed that though the erring spouses have no
remedy against each other within the confines of section 497 of the penal code,
that is to say, they cannot prosecute each other for adultery, each one has a
remedy against the other under the civil law for divorce on the ground of
adultery.

Cruelty against married 85) Preeti Gupta Vs. State of Jharkahand (AIR 2010 SC 3363) {the Hon’ble
women, Section 498A Supreme Court speaking through Dalveer Bhandari, J., exhorted the members of
the Bar to that every complaint under section 498A as a basic human problem
and to make a serious endeavour to help the parties in arriving at amicable
resolution of that human problem. The Hon’ble Supreme Court then observed
that the courts have to be extremely careful and cautious in dealing with these
complaints and must take pragmatic realities into consideration. Further it was
observed:
“Before parting with the case, we would like to observe that a serious relook of
the entire provision is warranted by the legislation. It is also a matter of
common knowledge that exaggerated versions of the incident are reflected in
large number of cases. The Hon’ble Supreme Court then made these
observations “It’s imperative for the legislature to take into consideration and
make necessary changes in the relevant provisions of law.”

86) Ramgopal Vs. State of M.P. [(2010) 7 SCALE 711] {the Court observed
that the offences under section 498A, among others can be made comnoundable
by makinw suitable amendment in CrPC.]

Setion 499 87) Jeffrey J. Diermeier and another Vs. State of West Bengal and anr
[(2010) 6 SCC 243] {ICFAI defamation case}

Section 511 Section 511

88) Satvir Singh v State of Punjab (AIR 2001 SC 2828) {the court explained
the ingredient of section 511)

89) Malkiat Singh v State of Punjab (AIR 1970 SC 713) {it was observed
that as a matter of law a preparation for committing an offence is different from
attempt to commit it. The preparation consists of devising or arranging means or
measures for the commission of offence. On the other hand, an attempt to
commit an offence is a direct movement towards the commission of offence. It
is a failure to produce the actus reas of the full offence but it reflects a direct
manifestation of the intention to commit the offence.

90) Madan Lal Vs. State of J & K (AiR 1998 SC 386) {held that “the difference
between preparation and an attempt to commit an offence consists chiefly in the
greater degree of determination and what is necessary to prove for an offence
of attempt to commit rape has been committed is that the accused has gone
beyond the stage of preparation. If an accused strips a girl naked and then
making her flat on the ground undresses himself and then forcibly nibs his
erected penis on the private part of a girl but fails to penetrate the same into
vagina and on such rubbing ejaculates himself then it cannot be said that it was
a case of merely assault under section 354 IPC and not an attempt to commit
rape under section 376 read with 511. The court upheld the conviction of the
accused for the attempt to commit rape.

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 28

Sr. Sections/Topics Related Cases

No. (Including Definitions etc.)
Difference between common intention (S. 34) and common
Important Discussion object (S. 149)

* The basis of liability under section 34 is the existence of common

intention animating the accused person. Liability under section 149
is based on the existence of common object or knowledge of the
probability of commission of offence.

* Common intention as contemplated by section 34 denotes action

in concert and necessarily postulates the existence of a pre-arrange
plan implying a prior meeting of mind while common object does
not necessarily require proof of prior meeting of mind.

* Section 34 does not create a specific offence whereas section 149

create a specific offence.

* Under S. 34 participation in the commission of the criminal offence

is must. Participation and common intention is sine quo non of the
offence whereas under S. 149 participation is not necessary. Mere
on the basis of the membership of the unlawful assembly and on
the basis of common object, liability can be imposed.

* Section 34 can be invoked even if two persons are involved in a

crime, whereas sec. 149 postulates the existence of an unlawful
assembly, which can be formed only if the members of the group
are five or more in number as provided u/s 141 IPC.

* Common intention within the meaning of sec. 34 is undefined and

unlimited. Common object is defined and limited to the five unlawful
objects stated in section 141 of IPC.

Chittarmal Vs. State of Rajasthan (AIR 2003 SC 796) {N.

Santosh Hegde and B.P. Singb JJ., the court observed “ Secti J4 a
well as section 149 deal with liability for constructive criminality i.e.
vic ‘ ty a person for acts of others. Both the section deals with
combinations of’pers ho bome punishable as sharers in the offence.

Some questions:

# Baladin, Mata Prasad, Devendra, Banwari and Brinda had been on look-out one who was out destroying their
crop at night. On that fateful night they caught Jaikaran red handed, with heavy chopper used for cutting
down standing crop and a bag containing several kilos of unprocessed crop. They five of them ties Jaikaran
to a mango tree in the village centre and began pounding him with kicks and blows. Since Jaikaran was not
willing to own responsibility for the earlier incidents of destruction, Baladin brought a burning bamboo pole
and torched him all over his body in order to compel Jaikaran to confess. Baladin thrust the burning bamboo
pole into his mouth causing extensive injuries to Jaikaran. On the intervention of Sarpanch Jaikaran was
untied, taken to hospital for treatment, where he died the next morning The doctor testified that the injuries
were cumulatively sufficient to cause death in ordinary course of nature. What offence has been committed
by the five accused. Can Baladin alone be prosecuted for murder under section 302? What clause of 300 is
applicable in this case? PUNJAB MAIN EXAM 2001

# Rahmat knew about Gopal’s resolve not to sell his bullocks and cows to a butcher. Life Trader, a modern
meat export unit had offered to pay higher price and commission to anyone who could arrange supply of
their slaughter unit. Rahmat who had procured animals for Life Trader earlier, took special aims in
convincing Gopalji to sell his animals to the firm that earned valuable foreign exchange for the country.
Gopalji sold his two bullocks and five cows to Life Trader for a good price. However till after the sale Gopalji
never knew that animals were actually meant for slaughter. Can Rahmat be prosecuted for the offence of
cheating? Would your answer be different if Rahmat had conveyed to Gopalji that Life Traders is a firm that
undertakes breeding of quality animals? PUNJAB MAIN EXAM 2001

# Why is investigation described as: “the executive stage in which there should be no judicial interference”?
PUNJAB MAIN EXAM 2001

# After his arrest X made a confessional statement to the IO about the motive of the crime and the elaborate
detail of its execution. X’s statement read as follows “I suspected his true intentions and before he could
unfold his plan I killed him. I left his body on the highway and left the dagger used in the crime somewhere
nearby”. The police team is led to the highway and takes the body under its charge, but the dagger is
handed over and active neighbours. Is the confessional statement admissible? What part of the statement
can be used by the virtue of sec 27? PUNJAB MAIN EXAM 2001

# In a warrant case the magistrate discharged the accused owing to the absence of the complainant on the
day fixed for hearing. On the next day the Magistrate entertained a second complaint on the same facts, by
the same complainant against the same accused and proceeded with the trial. Discuss the legality of the
procedure followed in the case. PUNJAB MAIN EXAM 2003

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 29

# Reena was not happy with her husband Vivek She left his house voluntarily and of her free will. She went to
Dalip who allowed her to stay in his house as his mistress. What offence if any has been committed by Dalip
and Reena? PUNJAB MAIN EXAM 2003

Latest Supreme Court Judgments on Criminal law in January 2015 . The judgments given below are
or CrPc, Indian Penal Code, Dowry Prohibition Act 1961, Immoral Traffic Offenders, Sand Offenders, Slum Grabbers
and Video Pirates Act, Drug Offenders, Forest Offenders, Criminal Law- Rehabilitation of victim

Sandeep Kumar Vs. Pooja [2015 STPL (Web) 1568 Del]

Criminal Law – Quashing of FIR- Criminal Procedure Code, 1973- Section 482, Indian Penal Code, 1860, Section
498A, 406, 34- Dowry Prohibition Act, 1961, Section 3 and 4- Matter arose out of matrimonial dispute and has been
settled between the two parties- Less likelihood is there of prosecution succeeding in this matter- Held therefore, FIR
quashed and proceedings emanating there from also quashed.

Avinash Vs. State [2015 STPL (Web) 1566 DELHI (Del)]

Criminal Law- Anticipatory Bail- Cruelty- Indian Penal Code- Sections 498-A, 406, 34, Criminal Procedure Code,
1973- Section 438- In this present case bail was granted to husband along with condition to pay Rs. 50,000 to wife
for meeting day to day expenses of the child- Question that arose was whether that this compensation to be paid as a
condition to the bail can be termed as unreasonable which can have the effect of buying the bail- Held, that the
complainant being lady, dependent on her parents- suggestion by court for making provisions for the immediate need
of the child can not be described as buying the bail- Condition imposed.

Ramki Vs. State of Tamil Nadu [2015 STPL (Web) 1565 MADRAS (MAD) ( DB)
Criminal Law- Preventive detention- non supply of copy order in translated language- T.N Prevention of
Dangerous Activities of Bootleggers, Drug Offenders, Forest Offenders, Goondas, Immoral Traffic Offenders, Sand
Offenders, Slum Grabbers and Video Pirates Act (14 of 1982), Section 3- The Detenu provided with illegible copy of
document due to which he failed to comprehend terms of detention order and could not comply with order of court –
Court failed to provide translated copy of document – Held that preventive detention order quashed due to non
supply of report in vernacular language ..

Richpal Kharra Vs. State [2015 STPL (Web) 1578 Rajasthan (RAJ)
Criminal Law- Rape- DNA Test of accused mandatory in nature- Criminal procedure code, 1973, Section 53 A-
DNA Test of accused- in this present case the complainant who alleged rape on her self told the police that she was
not interested in pursuing the matter and that no offence of rape had taken place with her- Police filed negative
report- Held that Section 53-A of CrPC is mandatory in nature. Accused was directed to provide sample for DNA
testing to be sent by investigating officer to the FSL and then FSL to bring the report to the court and court may
pursue the matter further , if necessary.

Manohar Singh vs. State of Rajhasthan and Ors. [ Criminal Appeal no. 99 of 2015 arising out of SLP
(CRL) No. 1491 or 2012]
Criminal Law- Rehabilitation of victim- Indian Penal Code, Section 323- In the present case the appeal was preferred
against the order of the Hon’ble High Court for setting aside the sentence of imprisonment of the accused- the
honorable Court has held that the accused has to pay compensation to the accused in addition to the imprisonment
and it can be said to rehabilitate the victim- Stress was laid on the reparation of Human Rights of the victim- Held the
accused to pay a compensation of Rs. 50,000 and in case of failure to pay he has to undergo rigorous imprisonment
for three months.

Mansoor Alam Vs. State of Utar Pradesh & ANR [ Criminal Appeal No. 91 of 2015 arising out of SLP
(CRL) no. 9247 or 2013] Criminal Law- Grant of Bail– Indian Penal Code Section 302, 34 and 120 B- In instant
case accused shot a bullet and killed another, the Hon’ble High Court granted bail to accused on the ground that
there were only two fatal injuries and the rest were injuries on non-vital parts of the body- Held, that order of high
curt is set aside and accused to remain in prison.- Bail refused.

Ahmed Shah & ANR. Vs. State of Rajhasthan [ Criminal Appeal no. 17/2009]
Criminal Case- Conviction under Section 302/ 34 of IPC or Section 304– In the present case the accused
being 7 in number formed an unlawful assembly armed with weapons to take possession of the fields of the claimant-
on spot due to a scuffle they caused injuries on complainant and his partners- 2 died as a result of those injuries-
Court held that the conviction would be under Section 304 instead of Section 302 because this case fell within the
fourth exception of Section 300 of murder, which states murder in case of sudden fight, which is to be without
premeditation, sudden in nature, without the offender having taken undue advantage or acted in a cruel manner, the
fight must have been with the persons killed- The accused inflicted injuries on the neck etc, knowing it would cause
death rest they fell within the fourth exception of Section 300- Held – no reason to interfere with the order of the
High of conviction only the sections were changed.

Vinod Kumar vs. State of Haryana [ Criminal appeal no. 1401 of 2008]
Criminal Law- Kidnapping of a 3 year old– Indian Penal Code , sections 363, 109, 364-A- The present case is
that Vinod Kumar (the accused) worked as a domestic help in the house of Jagbir Singh, and kidnapped their 3 years
old son, left a letter addressed to the father of Jagbir Singh for a ransom of Rs. 1 Lakh- Trial court acquitted the
accused and said the witness were not independent and were interested witnesses- High court reversed the ruling of
the trial court and said that the evidence on record and the statement of the witnesses corroborated and hence
accused was guilty- Accused also admitted face of writing the letter for ransom – Accused could not explain how the
boy reached Delhi railway station from where he was recovered – Held, no reason to interfere with the decision of the
Hon’ble High Court and appeal dismissed.

Darga Ram Vs. State of Rajhasthan [ Criminal Appeal no. 513 of 2008]
Criminal Law- Rape and murder of 7 year old child by a juvenile– In the instant case the accused who was
deaf and dumb and a juvenile at the time of the occurrence of the incident, raped one child who was attending a

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jagran and killed her brutally by crushing her head with a stone- the heinous crime attracted conviction by the trial
and High Court alike- After considering the evidence, age of the accused the accused was decided to be a juvenile at
the time of commission of offence and had been in jail for the last 14 years- the appeal succeeded in part and the
conviction under Section 302 and 376 of the Indian Penal Code and the sentence awarded to him is set aside.

Dilip Kumar vs. State of West Bengal [ Criminal Appeal no. 82 of 2015 arising out of SLP (Crl) No.
9447/2012

Criminal Law- Sentence of Life imprisonment is reduced to 10 years rigorous imprisonment– In the
instant case the accused attacked the complainant and others while they were working in the paddy field and caused
the death of one- court held in this case that it would fall under the fourth exception of Section 300 of sudden fight
without any premeditation and without taking any undue advantage of the situation- held that the accused’s
conviction under 302/34 of IPC is modified to 304 and hence the sentence reduced to 10 years of rigorous
imprisonment

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 32

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 33

The INDIAN EVIDENCE ACT, 1872

LIST OF LANDMARK CASES/IMPORTANT NOTES ON IMPORTANT TOPICS

Sr. Sections/Topics Related Cases

No. (Including Definitions etc.)
Section 6 Section 6

1) Gentela Vijayvardhan Rao Vs. State of AP. (A1R 1996 SC 2791) {it
was held that sec. 6 embodies the principle of resjudicata as is found in
English law. The essence of the doctrine is in particular in reference to sec. 6
is that the conduct or the statement should have been spontaneous, almost
immediate and almost contemporaneous. The real test should be when the
act is done or statement is made, did the concerned person act or make the
statement after second thought or any kind of fabrication.

The same point has been reiterated recently by the Division Bench of
Supreme Court headed by Arijit Pasayat J. in Javed Alam Vs. State of
Chattisgarh & Anr (2009 SC)

2) Sukhar Vs. State of U.P. (1996 SC) {it was observed as follows:
“the principle of law embodied in Section 6 of Evidence Act is usually known
as Res gestae The essence of the doctrine is that a fact which though not in
issue, is so connected with the fact in issue, as to form part of same
transaction becomes relevant itself. This rule is roughly speaking in exception
to the general rule that hearsay evidence is not admissible. Rationale in
making certain statements or facts admissible under sec. 6, is on account of
the spontaneity and immediacy of such statement or fact in relation to fact in
issue. But it is necessary that such statement or fact must form part of same
transaction.”)

Section 7 (case on “effect”) Section 7 (case on “effect”)

3) Spencer Cooper’s Trial (effect of drowning of a person)

4) Ramreddy Rajesh Khanna Reddy & others Vs. State of A.P. (2006 SC)

5) Deepak Chanderkant Patil Vs. State of Maharastra (2006 SC)

Section 8 6) Parliament attack case (AIR 2005 SC 3820) {held that purchase of
ambassador car, mobile phones, sim card and ammonium nitrate was held to
be preparation for fact in issue.)

7) K.T. Palanisamy Vs. State of Tamil Nadu [(2008) 3 SCC 100]

8) Animireddy Venkata Ramana and others Vs. Public Prosecutor, High Court
of A.P. [(2008) 5 SCC 368]

Test Identification Parade 9) Malkhan Singh Vs. State of M.P. (AIR 2003 SC 2669) {the court observed
that as a general rule substantive evidence of a witness is the statement
made in court. The evidence of mere identification of the accused persons at
the trial for the first time is from its very nature inherently of a weak
character. The purpose of prior test identification, therefore, is to test and
strengthen the trustworthiness of that evidence

10) Munna Vs. State (NCT of Delhi) (AIR 2003 SC 3805) {lt was observed
that the normal rule is that testimony of a witness, who does not know an
accused from before and identifies him for the first time in court as a person
who had participate in the commission of the crime, without holding a
previous identification parade does not can’y much weight The substantive
evidence of a witness is the statement in court but as a nile of prudence
earlier identification proceedings are held in order to corroborate the
testimony of a witness given in court as regards the identity of the accused
who is not known to him from before.)

11) State (NCT of Delhi) Vs. Navjot Sandhu (AIR 2005 SC 3820. Parliament
attack case, Decided on August 4 2005) {it was held that it is not always
necessary to conduct the TIP. The very logic which requires the conducting of
TIP also would suggest that the testimony in-the court would be directly
admissible and reliable even If TIP was not conducted. It depends upon the
circumstances i.e. what was the trust worthiness of the identification and the
memory of the witness regarding the identity i.e. for how much time did the
witness see the said person, was there sufficient light to see him, were there
any special features on the said person so as to enable the witness remember
him for a longer period. Thus the direct identification before the court will not
be declared inadmissible or unreliable only because T.I.P. was not held rather
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a case by case circumstantial examination has to be done. The court has to

apply its Judicial mind in such cases.)

12) Macchi Singh Vs. State of Punjab (1983 SC) {it was held that the identity
by the witness was sufficient or not is highly circumstantial. In this case it
was held that if a person who lives in the village has seen the accused even
in the dim light of lantern, his identity will be sufficient as he is used to see
things in such light. But in the same situation, a person of the city who is not
so used to may not be as trustworthy.

13) Munshi Singh Gautani Vs. State of M.P. (2005 SC) {if test identification
parade has not been conducted then higher level of trustworthiness of the
witness is required to identifr the accused in the court room.}

Section 10 Section 10

14) Mirza Akbar Vs. King Emperor (AIR 1940 PC 176) {the court held that any
statement or confession made after the completion of conspiracy does not
attract section of the Evidence Act and this cannot be used against other
person for proving the conspiracy. For relevancy under section 10, existence
of conspiracy at the time when the said statement was made is necessary.

15) State (NCT of Delhi) Vs. Navjot Sandhu (AIR 2005 SC 3820) {two judge
bench speaking through P. Venkatramareddy, J., cited earlier cases such as
Mirza Akbar Vs. King Emperor and also Kehar Singh Vs. Delhi Administration
(1988 SC) and held that a confessional statement made after the conspiracy
was over will not be admissible as a statement u/s 10 as for relevancy and
admissibility u/s 10, it would be essential that the conspiracy was in existence
at the time when the statement was made.)

16) State of Tamil Nadu Vs. Nalini (1999 SC) {held that in order to be
relevant u/s 10, it is essential that the person who makes the statement or
does the act was a member of the conspiracy at the time when he so made
the statement or did the act. Any statement or act by a person who was not
sharing the common intention at the time when the statement or act was
done is not admissible under sec 10.

Tape recorded evidence

17) Rama Ruddy Vs. V.V. Giri (1970 SC) (held that in the cases where the
witness has made previous-statement and that has been tape recorded, such
recording can be used for the purpose of contradicting (u/s s. 145),
corroborating (u/s s. 157, testing the veracity (u/s s. 146) or impeaching the
credit (u/s s. 155) of such witness when he gives the testimony in court.

18) R.M. Malkani Vs. State of Maharashtra (1973 SC) {the court held as
follows:
* A tape recorded evidence is a primary and direct evidence of a fact.
* It can be used as a documentary evidence of the fact-in issue or of any
relevant fact.
* Even if the recording has been done illegally, it will be admissible.
* Tape recorded evidence is admissible but it will be relied upon only if
proper identification of the voice is proved and also proved that the recording
was not tempered with. For this purpose, expert evidence has to be obtained.

Exclusion of exculpatory Exclusion of exculpatory statement

statement
19) Nishikant Jha Vs. State of Bihar (1968 SC) {the court could reject the
exculpatory portion of the statement if it is inherently improbable and is
contradicted by the other evidence, and accept the inculpatory portion in
convicting the accused.)

20) Palvinder Kaur Vs. The State of Punjab (1953 SC) -

21) Dudh Nath Pandey Vs. State of U.P. [(1981) 2 SCC 166] {speaking
through Y.V. Chandrachud, J., the SC held that the plea of alibi postulates the
physical impossibility of the presence of the accused at the scene of offence
by reason of his presence at another place. The plea can, therefore, succeed
only if it is shown that the accused was so far away at the relevant time that
he could not be present at the place where the crime was committed.

22) Akbar Sheikh and others Vs. State of west Bengal [(2009) 7 SCC 415]

Definition of confession Definition of confession

23) Pakhala Narayan Swami Vs. Emperor (1939 PC) {Privy Council defined

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the term confession as follows: “Confession is a statement which is an

admission of the guilt by the accused in as many term or which is an
admission of such incriminating facts as together constitute the offence. The
first part of the definition is called a plenary or a direct confession as it is a
direct admission of the offence by the accused that he has committed a
crime. Whereas the second part is called indirect or circumstantial confession
i.e. the accused doesn’t admit the commission of crime directly rather he as
admitting only the circumstantial facts and put together these facts will
constitute the crime.

Evidentiary value of Extra Evidentiary value of extra judicial confession

Judicial Confession
24) State of Rajasthan Vs. Rajaram (AIR 2003 SC 3601) {Confessions may be
divided into two classes, i.e. judicial and extra-judicial, judicial confessions are
those which are made before Magistrate or Court in the course of judicial
proceedings. Extra-judicial confessions are those which are made by the party
elsewhere than before a Magistrate or Court. Extra-judicial confessions are
generally those made by a party to or before a private individual which
includes even a judicial officer in his private capacity. It also includes a
Magistrate who is not especially empowered to record confessions under
Section 164 of the Codes or a Magistrate so empowered but receiving the
confession at a stage when Section 164 does not apply. An extra-judicial
confession, if voluntary and true and made in a fit state of mind, can be relied
upon by the Court. The confession will have to be proved like any other fact,
The value the evidence as to confession, like any other evidence, upon the
veracity of the witness to whom it has been made. The value of the evidence
as to the confession depends reliability of the witness who gives the
evidence, It is not to any Court to start with presumption that extra-judicial
confession is a weak type of evidence. It would depend on the nature of the
circumstances, the time when the confession was made and the credibility of
the witnesses who speak to such a confession. Such a confession can be
relied upon and conviction can be founded thereon if the evidence about the
confession comes from the mouth of witnesses who appear to be unbiased,
not even remotely inimical to the accused, and in respect of whom nothing is
brought out which may tend to indicate that he may have a motive for
attributing an untruthful statement to the accused, the worth spoken to by
the witness are clear, unambiguous and unmistakably convey that the
accused is the perpetrator of the crime and nothing is omitted by the witness
which may militate against it. If the evidence relating to extra-judicial
confession is found credible after being tested on the touchstone of
credibility and acceptability, it can solely form the basis of
conviction. The requirement of corroboration is a matter of prudence and
not an invariable rule of law. It is improbable that the accused would repose
confidence on a person who is inimically disposed towards him, and confess
his guilt.}

25). State of Punjab Vs. Gurdeep Singh (1999 SC) {held that the
evidentiary value of the extra judicial confession is depend upon the
credibility and veracity of the witness to whom the confession has been
given.

26) State of Madhya Pradesh Vs. Paltan Mallah (2005 SC) {held that
extra judicial confession is a good piece of evidence but in itself is not
sufficient to prove the fact in issue rather it needs
sçonoborationbyotherrelevtfact.)

Retracted Confession 27) NCT of Delhi Vs. Navjot Sandhu (AIR 2005 SC 3820) Once a confession is
proved to be given voluntarily, a retraction will not play any role.)

28) State of Tamil Nadu Vs. Kutty (AIR 2001 sc 2778) {it was observed that it
is not the law that once a confession was retracted, the court should presume
that the confession is tainted. Non-retracted confession is a rarity in criminal
cases. To retract from confession is the right of confessor and all the accused
against whom confessions were produced by the prosecution have invariably
adopted that right. It would be injudicious to jettison a judicial confession on
the mere premise that its maker has retracted from it. The court has a duty
to evaluate the evidence concerning the confession by looking at all aspects.
The twin test of a confession is to ascertain whether it was voluntary and
true. Once those tests are found to be positive the next endeavour is to see
whether there is any other reason which stands in the way of acting en it.
Even for that, retraction of the confession is not the round to throw the
confession overboard.

29) Pyarelal Bhargav Vs. State of Rajasthan (AIR 1963 SC 1094, 4 Judge
Bench, By Subba Rao, J.)) {held that a retracted confession may form the
legal basis of a conviction if the court is satisfied that it was true and was
voluntarily made. But it has been held that a coufrt shall not base a
conviction on such a confession without conoboration. It is not a rule of law,

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but is only a rule of prudence. It cannot even be laid down as an inflexible

rule of practice or prudence that under no circumstances such a conviction
can be made without corroboration, for a court may, in a particular case, be
convinced of the absolute truth of a confession and prepared to act upon it
without corroboration; but it may be laid down as a general rule of practice
that it is unsafe to rely upon a confession, much less on a retracted
confession, unless the court is satisfied that the retracted confession is sue
and voluntarily made and has been corroborated in material particulars.)

30) Bharat Vs. State of UP. (1974 SC) {Hidaytullah, J., speaking through a
three Judge Bench held that the mere fact that there was a retraction will not
per se affect the admissibility or evidentiary value of the confession. A court
may take into account the retracted confession, but it must look for the
Retracted confession, but it must look for the reasons for the making of the
confession as well as for its retraction, and must weigh the two to determine
whether the retraction affects the voluntary nature of the confession or not.
If the court is satisfied that it was retracted because of an afterthought or
advice, the retraction will not weigh with the court if the general facts proved
in the case and the tenor of the confession as made and the circumstances of
its making and withdrawal warrant its user. All the same, the court does not
act upon the retracted confession without finding assurance from some other
sources as to guilt of the accused.}

Admissibility and evidentiary 31) Nishikant Jha Vs. State of Bihar (AIR 1969 SC 422) {held that the court
value of the admissions which could reject the exculpatory portion of statement if negative by evidence on
have got exculpatory as well record and accept the inculpatory portion in convicting the accused)
as inculpatory statements in
the same admission

Evidentiary value of 32) Aghnoo Nageshia Vs. State of Bihar (1965 SC) {the issues in this case
confessional FIR was, can those portions of the confessional FIR which relate to admission of
the crime be separated from those portions which relates from admission of
other relevant facts and can such admission of other relevant facts be made
admissible. Also, whther the discovery statement in a confessional FIR will be
admissible.

The court held that the entire confession has to be read as a whole and the
confessional and other part are a part of the same series of declaration and
these admissional parts are made in order to provide the background to the
confessional part. They can’t be read distinctly. Thus the whole confessional
FIR, since made to the police will be hit by section 25 and cannot be proved.

However, that portion of FIR which distinctly relates to the discovery of a fact
will be admissible by virtue of sec. 27.

The conduct of the accused in lodging FIR will be admissible u/s 8.

Section 27 33) Pulukuri Kottaya (AIR 1947 PC 67) {this case has been described as locus
classicus on the interpretation of section 27 of the Indian evidence Act.
Speaking through Sir John Beaumont, the Privy Council has explained this
section in great detail and the interpretation rendered by the court is still hold
good.)

34) Mohd. lnayatullah Vs. State of Maharashtra [(1976)1 scc 828]

35) GeejagandaSomaiyav. State of Karnatake

36) H.P. Administration Vs. Om Prakash

37) Era Bhadrappa Krishnappa Vs. State of Karnataka (1983 SC) {A discovery
statement may result into an adverse presumption against the accused u/s
114 of the Evidence Act.)

38) State of Himachal Pradesh Vs. Jeet Singh (AIR 1999 SC 1293) {the court
observed that there is nothing in section 27 of The Evidence Act which
renders the statement of the accused inadmissible if recovery of the articles
was made from any place which is “open or accessible to others”, it is
fallacious notion that when recovery of any incriminating article was made
from a place which is open or accessible to others it would vitiate the
evidence under section 27 of the Evidaice Act. Any object can be concealed in
places, which are open or accessible to others. For example, if the articles
buried on the main roadside or if it is concealed, beneath dry leaves lying on
public places or kept hidden in a public office, the article would remain out of
the visibility of others in norma1 circumstances. Until such article is
disinterred its hidden state would remain unhampered. The person who hid it
alone knows where it is until he discloses that fact to any other person.
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Hence the crucial question is not that whether the place was accessible to
others or not but whether it was ordinarily visible to others. If it is not then it
is immaterial that the concealed place is accessible to others }

39) Nisar Khan @ Guddu Vs. State of Uttaranchal (2006 SC)

{Murder weapon was hidden on a bank of a river under some stones. It was
held that it is not in open place but in a hidden condition.}

40) Mohd. Abdul Hafiz Vs. State of A P (1983 SC) {Admissibihty of discovery
statement is only against the accused on whose information the object was
discovered.}

41) Parliament attack case [(2005) 11 SCC 600 AIR 2005 SC 3820 Decided on
August 4 2005 Judgment by P Venkataramnreddy Jj {the court held that
discovery on the basis of joint disclosure can be used against all the accused
provuled the disclosure was made simultaneously or almost simultaneously.

A question was also raised as to whether the mere mental fact i.e. the fact
that the accused had the knowledge of the whereabouts of the object will be
admissible u/s 27 or not? The court held that even though fact means either
the physical fact or a mental fact, for the purpose of section 27 both the facts
need to be proved conjunctively i.e. the very essence of the admissibility lies
in actual discovery of the object. And, therefore, against Abdul Gilani, who
had given the disclosure statement but the discovery was made on some
other basis, it cannot be used, as the physical fact has not proved against
him.}

Effect of threat or compulsion

42) M.P. Sharma Vs. Satish Chandra (1954 SC) {Art 20(3) relates not only to
the giving of information based upon personal knowledge rather also any fact
discovered on that basis.)

43) State of Bombay Vs. Kathukalu Aughad (1960 SC) {lt was held that if a
discovery statement is obtained under threat or compulsion then it will be hit
by Art 20(3) as it would be amount to making the accused a witness against
himself as the discovery statement is based upon his personal knowledge.

44) Mrs. Selvi and others Vs. State of Karnataka [(2010) 7 SCC 263, AIR 2010
SC 1974) {speaking through KG. Balakrishnan, CJ., the court held that if on
the basis of voluntary administration of scientific techniques such as narco
analysis polygraph test and BEAP test, any fact is discovered on the basis of
information derived then that disclosure will be admissible under sec. 27 of
the Evidence Act. However, there must be voluntary administration of these
tests.}

Section 27 and Article 14

45) State of UP. Vs. Deoman Upadhyay (1960 SC) {Sec. 27 is not violative of
Article 14 of The Constitution of India)

Section 30 46) Balbir Singh Vs. State of Punjab (AIR 1957 SC 216) {It was held by the
SC that confession of one accused can be used against the other if the
confession implicates the maker substantially to the same extent as the other
co-accused person against whom it is sought to be taken into consideration.}

Evidentiary Value of confession of co-accused

47) State (NCT of Delhi) Vs. Navjot Sandhu @ Afsan guru [(2005)11 SCC 600
AIR 2005 SC 3820, P Venkataramareddy and Prakash Prabhakar Naolekar,
JJ.] {The court observed that the crucial expression used in section 30 is “the
may take into consideration such confession.” These words imply that the
confession of a co-accused cannot be elevated to the status of substantive
evidence which can form the basis of the conviction of the accused.

48) Bhubhoni Sahu v R (AIR 1949 PC 257) {held that the court may take the
confession of co-accused into consideration but the confession is only one
element in the consideration of all the facts proved in the case, it can be put
into scale and weighed with the other evidence.

49) Hari Charan Kurmi Vs. State of Bihar (AIR 1964 SC 1184) {A Constitution
Bench of Supreme Court speaking through Gajendragadkar, J., after referring
several cases on this point held that “As a result of the provisions contained
in S. 30, Evidence Act the confession of a co-accused has to be regarded as
amounting to evidence in a general way, because whatever is considered by
the Court is evidence; circumstances which are considered by the Court as
well as probabilities do amount to evidence in that generic sense. Thus,
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though confession may be regarded as evidence in that generic sense

because of the provisions of S. 30, the fact remains that it is not evidence as
defined by S. 3 of the Act. The result therefore, is that in dealing with a case
against an accused person the Court cannot start with the confession of a co-
accused person; it must begin with other evidence adduced by the
prosecution and after it has formed its opinion with regard to the quality and
effect of the said evidence, then it is permissible to turn to the confession in
order to receive assurance to the conclusion of guilt which the judicial mind is
about to reach on the said other evidence

Thus, the confession of a co-accused person cannot be treated as substantive

evidence and can be pressed into service only when the Court is inclined to
accept other evidence and feels the necessity of seeking for an assurance in
support of its conclusion deducible from the said evidence. In criminal trials
there is no scope for applying the principle of moral conviction or grave
suspicion. In criminal cases where the other evidence adduced against an
accused person is wholly unsatisfactory and the prosecution seeks to rely on
the confession of a co-accused person, the presumption of innocence which is
the basis of criminal jurisprudence assists the accused person and compels
the Court to render the verdict that the charge is not proved against him and
so he is entitled to the benefit of doubt.

Stock witness 50) Dudh Nath Pandey v State of UP (AIR 1981 Sc 911) {In this case
Supreme Court found that the police had introduced a stock witness to prove
the recovery of the weapon of offence in a murder case. The question on
placing any reliance on the testimony of such a witness does not arise. Once
it is proved on record that a certain witness examined by the prosecution is a
stock witness of the police, the court would be justified in discarding his
testimony.

51) Hazara Singh Vs. State of Punjab [(1971) 3 SCR 647] {It was observed
that mere fact that one of the prosecution witness is a stock witness of police
in itself is not enough to falsify the entire prosecution case. In such a case it
is the duty of the court to brush aside the testimony of the stock witness and
see if the remaining prosecution evidence is enough to sustain conviction of
accused.}

Sec. 32(1) Dying declaration 52) Surinder Kumar Vs. State of Haryana (Decided on Oct 21, 2011)
{held that if after careful scrutiny the court is satisfied that the dying
declaration is free from any tutonng and it is coherent and consistent then
there shall be no legal impediment to make a basis of conviction even if there
is no corroboration.}

53) Paneerselvem Vs. State of Tamil Nadu [(2008) 17 SCC 190] {A

three Judge Bench of SC speaking through Dr. Arijit Pasayat, J., held that
dying declaration should be of such a nature as to inspire full confidence of
the court in its correctness. The court has to been guard that the statement
of the deceased was not a result of either tutoring or prompting or a product
of imagination. The court must be further satisfied that the deceased was in a
fit state of mind after a clear opportunity to observe and identi’ the assailant
Once the court is satisfied that the declaration was true and voluntarily,
undoubtedly it can base its conviction without any further corroboration. It
can’t be laid down as an absolute rule that the dying dcjnrstion cannot form
the sole basis of conviction unless it is corroborated. The rule requiring
corroboration is merely a rule of prudence.}

54) Nalapati Sivaiah Vs. Sub-Divisional Officer, Guntur, A. P. (AIR

2008 SC 19) {held, it is of a dying deel -. as regards the cases, the court
evidence by evidence.

55) Uka Ram Vs. State of Rajasthan (AIR 2001 SC 1814) (it was held
by the Hon’ble SC that the admissibility of dying declaration rests upon
principle that a sense of impending death, produces in man’s mind the same
feeling as that of conscientious and man under oath. The principle on which
the dying declaration is admitted is based upon the maxim NEMO
MORITURUS PRAE SUMITUR which means that no one will meet his maker
with lie in his mouth, It has always to be kept inmind that though dying
declamtion is entitled to a geat weight, yet it is worthwhile to note that as the
maker of the statement is not subject to cross examination, it is essential for
the court to insist that dying declaration should be of such as to inspire full
confidence of the court in its correctness. The court is obliged to rule out the
possibility of statement being either the result of tutoring, prompting or
conducive or product of imagination.

56) Pakhala Narayan Swami Case (AIR 1939 PC 47) (Pre injury
statement that related to circumstances of the transaction which resulted in
his death.}

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57) Najjam Faruqui Vs. State of West Bengal (1998 SC) {For dying
declaration it is not necessary that the person must die immidietely or after
some days of making the statement.

58) Kajal Sen Vs. State of Assam (AIR 2002 SC 617) {Evidentiary valve
of a dying declaration recorded in other language}

59) Queen Empress Vs. Abdullab (ILR 7 All 385) {Dying declaration can
made by signs also)

60) Meesala Rainakrishan Vs. State of A.P. [(1994) 4 SCC 182] {held
that dying declaration recorded on the basis of nods and gestures is not only
admissible but possesses evidentiary value, the extent of which shall depend
upon who recorded the statement, what is his educational attainment, what
gestures and nods were made, what were the questions asked - whether they
were simple or complicated-and how effective or understandable the nods
and gestures were.

61) Ram Bihari Yadav Vs. State of Bihar (1998 SC) Form of recoding
the dying declaration and whether dying declaration can be the sole basis of
conviction or not. The court held that conviction on the uncorroborated dying
declaration can be done provided it inspires full confidence of the court.)

Permission to lead secondary 62) Roman Catholic Mission Vs. State of Madras (AIR 1996 SC 1457)
evidence under sec 65 (c) {Held where the originals were not produced at any time nor was any
foundation laid for establishment of the right to give secondary evidence,
copies of the original not admissible in evidence}

Regarding execution of will 63) H. Venkatachala Iyengar Vs. B.N. Thimmajamma (AIR 1959 SC
443) {Where there are suspicious circumstances, the onus would be on the
propounder to explain them to the satisfaction of the court before the will
could be accepted as genuine.}

64) Kalyan Singh Vs. Chhoti (AIR 1990 SC3 96) {Read pg no. 300 of
shailendra Malik)

Sec. 68 i.e. Proof of execution 65) Janki Narayan Bhoir Vs. Narayan Namdeo Kadam (AIR 2003 SC
of document required by law 761) {it flows from sec. 68 that if there been an attesting witness alive
to be attested capable of giving evidence and subject to the process of the court, has to be
necessarily examined before the document required by law to be attested can
be used in evidence. On a combined reading of sec. 63 of Indian Succession
Act 1925 which provides for attestation of will by two witnesses, and sec. 68
of Evidence Act, it appears that a person propounding the will has got to
prove thnt the will was duly and validly executed. That cannet be done by
simply proving that the signature on the will was that of the testator but also
must also prove that attestations were also made properly as required by
Clause (c) of sec. 63 of the Succession Act. It is true that sec. 68 of Evidence
Act does not say that both or all the attesting witnesses must be examined.
But atleast ene attesting witness has to be called for proving due execution of
the Will as envisaged in sec. 63. But what is significant to be noted is that
one attesting witness examined should be in a position to prove the execution
of a Will. To put in other words, if one attesting witness can prove execution
of the Will in terms- of Clause (c) of sec. 63, viz., attestation by two attesting
witnesses in the manner contemplated therein, the examination of other
attesting wimess can be dispensed with. The one attesting witness, in his
evidence has to satisfy the attestation of a Will by him and other attesting
witness in order to prove the due execution of the will. Where one attesting
witness is examined and he fails to prove the attestation of the Will by the
other witness there will be deficiency in meeting the mandatory requirements
of Section 68 of the Evidence Act).

Section 73 Section 73

66) State of Haryana Vs. Jagbir Singh (AIR 2003 SC 4377)

{Doraiswami Raju and Arijit Pasayat JJ., held that in order to enable exercise
of power under section 73, the pendency of a proceeding before the court is
sine quo non.}

67) Murari Lal Vs. State of U.P. (AIR 1980 SC 531) (the court observed
that “the argument that the court is not venture to compare disputed writings
with admitted or proved wirtings to ascertain whether writing is that of a
person by whom it purports to have written)

Section 92 proviso I (sham 68) Gangubai Vs. Chhabbubai [(1982) 1 SCC 4] {It was held that in-
transaction) spite of section 92(1) of the Indian Evidence Act, it is permissible for the
party to a deed to contend that the deed was not intended to be acted upon
but was only a sham document.)
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69) Ishwar Dass Jain Vs. Sohan Lal [(2000) 1 SCC 434] (the court held
that the bar imposed by section 92(1) applies only when a party seeks to rely
upon the document embodying the terms of the transaction and not when
the case of a party is that the - transaction recorded in the document was
never intended to be acted upon at all between parties and that document is
a sham document.}

Latent and Patent defect 70) State Bank of India & Anr Vs. Mulla Sahkari Shakkar Karkhana
Ltd. (2006 SC) {in this case the question was whether a document b/w the
bank and the defendant co. was a bank guarantee or an indemnity The
document had not used the temi guarantee at all The contention was that the
document is ambiguous and thus the oral eiiderice was sought to be given to
clear that ambiguity The court in this examined the document and only upon
such examination, when it found thnt it was specifically provided in the
document that the bank will make the payment irrespective of any losses
proved on the part of the company and therefore, the court held that the
document is quite clearly as bank guarantee and not indemnity and thus oral
evidence shall not be allowed.)

71) Godhra Electricity Co. Vs. State of Gujarat (1975 SC) (it was held
that if an ambiguity is found in a document, the ambiguity can be resolved by
proving the conduct of the parties subsequent to the documentation provided
the conduct was not too remote, rather it was almost contemporaneous with
the documentation.}

Sec. 108 72) Life Insurance Corporation of India Vs. Anuradha (2004 SC) {it
was held that sec. 108 does not raise the presumption of the date of death
rather it is just a presumption that the person concern is dead today i.e. on
the day when the 7 years period lapse and thereafter until the contrary is
proved.}

Sec. 111 73) Krishna Mohan Vs. Pratima Maity (2003 SC) {held that sec. 111 is just a
rule of burden of proof requiring a party to prove that the transaction entered
into was acted under good faith. The party who seeks the burden of proof to
lies upon the opposite party has to prove that the opposite party had a
dominating capacity upon his will and also that he had an active conridence
of him i.e. he has a duty to take care of the interest of the applicant. On only
this much of the prove, the burden of - proving the good faith of the
transaction shifted upon the party who had control.}

Sec. 112 74) Gautam Kundu Vs. State of West Bengal (1993 SC) {the court held
follows:

* DNA testing shall not be conducted as a routine matter.

* Courts in India shall put a restrain upon themselves in ordering blood test
for DNA profiling.

* Whenever an application for blood testing for DNA profiling is made, the
court has to first of all examined whether a strong prima facie case is made
out in favour of the applicant or not.

* The court must carefully examine as to what would be consequence of

ordering blood test. It may give rise to basterdization of the child or declaring
the mother as unchaste.

* No one can be compelled to give sample of blood for analysis.

75) Banarasi Das Vs. Tiku Dutta (2005 SC) {the court after citing two
more case Dukhtar Jahan Vs. Mohd. Faruq (1987 SC) and Amaijeet
Kaur Vs. lrlarbhajan Singh (2003 SC), held as follows:

* The result of genuine DNA test is said to be scientifically. accuratt But even
that is not enough to escape from the conclusiveness of sec. 112 of the Act,
i.e. if a husband and wife are living together during the time of conception
but the DNA test revealed that the child was not born to the husband, the
conclusiveness in law would remain irrcflatable. This may look hard from the
point of view of the husband who would be compelled to bear fatherhood of
a child. But even in such a case the law leans in favour of the innocent child
from being basterdised if his mother and her spouse were living together at
the time of conception.

* If a conclusive proof is not raised u/s 112 then in proper cases DNA test
may be allowed in the interest of justice.

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* DNA test will normally be allowed at the request of the petitioner to prove
the paternity of the child but it will not normally be allowed for disproving
paternity.

Note: The 69th Law Commission report has also declared the purpose of sec.
112 to be social and aimed at preventing denial of paternity

Order for medical examination 76) Sharda Vs. Dharam Pal (2003 SC) {in this case the question was
by family court whether a medical examination can be imposed upon the respondent
husband in a divorce proceeding on the ground of cruelty and mental
disorder to prove mental disorder of the respondent. It was also an issue
whether the family court can pass such order or not. The court held as
follows:

* A Family court can pass such an order but under the broad supervision of
HC under CPC as well as the Article 227 of the Constitution.

* Such an order for medical examination can be given upon proving of prima
facie case.

* If the court has passed an order of medical examination which may include
blood test for DNA profiling and the person against whom such an order has
been made refuses to obey the order of the court then the court may
presume that the result of the test may be unfavorable for the person.}

* In the cases where the accused has already confessed his guilt, DNA testing
shall not be ordered.

Estoppel, secs. 115-117 77) Bansraj Laltaprasad Mishra Vs. Stanley Parker Jones (2006 SC)

78) Tej Bhan Madan Vs. II Additional District Judge and others
(1988 SC) {held that for the purpose of sec. 116 IEA, if the title of the
landlord is challenged on the ground of jus tertii i.e. illegal possession of such
landlord or on the ground of fraud committed by landlord upon the tenant
then will allowed to challenge but otherwise he can’t challenge the title as it
existed on the day when the tenancy or the license commenced)

79) J.J. Lal Pvt. Ltd Vs. Mit Murli & other (2002 SC) (it was held S that
sec. 116 Evidence Act is not exhaustive upon the principle of estoppel
between the landlord and tenant or licensor and licensee. The court further
held that the prohibition against the denial of title would apply not only till the
continuance of the tenancy or the license rather till the continuance of the
possession of the property thereafter.)

Difference between “plea of 80) Manipur Administration Vs. Thokchom Bira Singh (MR 1965 SC
issue estopple” and “plea of 87) (held that “the rule of issue estoppel in a criminal trial is that where an
autrefois acquit” issue of fact has been tried by a competent court on a fonner occasion and a
finding has been reached in favour of an accused, such a finding would
constitute an estoppel or res-judicata agaInst the prosecution, not as a bar to
the trial and conviction of the accused for a different and distinct offence, but
as precluding the of evidence to disturb that finding of fact when the accused
is trial subsequently even for a different offence which might be permitted by
the terms of section 300. The rule is not the same as double jeopardy or
autrefois acquit. The rule dos not introduce any variation Code of Criminal
Procedure either in investigation, inquiry or trial. It also does not prevent the
trial of any offence as does autrefois acquit but only precludes evidence being
led to prove a fact in issue as regards which evidence has already been led
and a specific finding recorded at an earlier criminal trial before a competent
jurisdiction)

Section 133 and Illustration 81) Madan Mohan Vs. State of Punjab (AIR 1970 SC 1006) {the court
(b) of section 114 held that “while it is not illegal to act upon the uncorroborated evidence of an
accomplice, it is a rule of prudence to be universally followed as to amounts
to a rule of:law that the courts ought not to pay any respect to the testimony
of an accomplice unless he is corroborated rn material particular.)

82) Haroon Haji Abdulla Vs. State of Mahdashtra (AIR 1975 SC 856)
{speaking through Hidaytullah, J. the court has explained the relationship
between section 133 and illustration (b) of sec. 114 as follows:

“The law as to accomplice evidence is well settled. The Evidence Act in sec.
133 ptovidcs that an accomplice is a competent witness aainct an accused
person and a conviction is not illegal - merely: because it proceeds upon the
uncorroborated tdEnony of an accomplice. The effect of this provision is that
the court trying an accused may legally convict him on thd hasjs of the sole
evidence of an accomplice. To this there is a rider in illustration (b) to sec.
114 which provides that the court may presume that an accomplice is
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unworthy of credit unless he is corroborated in material particulars. This

cautionary provision incorporates a rule of prudence because an accomplice,
who betrays his associates, is not a fair witness and is is possible that he
may, to please the prosecution, weave JHlse details into those which are true
and his whole story appearing true, there may be no means at hand to sever
the false from that which is true. It is because this reason that courts, before
they act on accomplice evidence, insist corroboration in material respects as
to the offence itself and also implicating in some satisfactory way, however
small, each accused named by the accomplice. In this way commission of an
offence is confirmed by some competent evidence other than the single or
unconfirmed testimony of the accomplice and the inclusion by the accomplice
of an innocent person is defeated. This rule of caution and prudence has
become so ingrained in the consideration of accomplice evidence as to have
almost the standing of a rule of law.” }

83) Dagdu Vs. State of Maharashtra (AIR 1977 SC 1579) {a bench of

three judges of supreme court has laid down the legal position after making
the survey of the case law by referring to Ratneshwar Vs. State of Rajasthan,
AIR 1952 SC 54 and a number of other decision of Apex court as well as of
English Courts:

“There is no antithesis between sec. 133 and illustration (b) of section 114 of
the Evidence Act, because the illustration only says that the court may
presume a certain state of affairs. It does not seek to raise a conclusive and
irrefutable presumption. Reading the two together the position which
emerges is that though an accomplice is a competent witness and though a
conviction may lawfully rest upon his uncorroborated testimony, yet the court
is entitled to presume and may indeed be justified in presuming in the
generality of the cases that no reliance can be placed on the evidence of an
accomplice unless that evidence is corroborated in material particulars, by
which is meant that there has to be some independent evidence tending to
incriminate the particular accused in the commission of the crime..... All the
same, it is necessary to understand that what has hardened into a rule of law
is pot that the conviction is illegal if it proceeds upon the uncorboratted
testimony of an accomplice but that the rule of corroboration must be present
to the mind of the judge and the corroboration may be dispensed with only if
the peculiar circumstances of a case make it safe to dispense with it.”)

Evidentiary value of an 84) Ravindra Singh Vs. State of Haryana (1975 SC) {the crux of the
approver decision is same as mentioned in above judgments.

Sec. 145 85) Binay Kumar Singh Vs. State of Bihar (AIR 1997 SC 322) {it was
observed that the credit of witness can be impeached by proof of any
statement which is inconsistent with his part of evidence in Court. This
principle is delineated in sec 155(3) of the Evidence Act and it must be borne
in mind when reading 145 which consists of two limbs. It is provided in the
first limb of sec. 145 that a witness may be cross-examined as to the previous
statement made by him without such writing being shown to him. But the
second limb provides that “if it is ritended to contradict him by the writing his
attention must, before writing can be proved, be called to those parts of its
which are to be used for the purpose of contradicting him”. There is thus a
distinction between the two vivid limbs, though subtle it may be. The first
part didn’t envisage impeaching the credit of witness, but it merely enables
the opposite party to cross examine the witness with reference to the
previous statement, made by him.

Section 154 86) S. Murugesan and others Vs. P. Pethaperumal (AIR 1999 Mad
76) {The court has explained the scope of section 154)

When permission to cross 87) State of Bihar Vs. Laloo Prasad (2002 SC) {it was observed that
examine should be seek when the witness called by the prosecution has resiled from his expected
stand even in chief examination the permission to put cross-questions should
have been sought then. The refusal of pennission to cross question the
witness sought by the public prosecutor after the cross examination of
witness was over cannot be sai4 to be a wrong exercise of discretion vested
in the trial judge liable to be interfered with in appeal.

88) Koti Lakshman Bhai Vs. State of Gujarat (2000 SC) {held that it is
settled law that evidence of hostile witness also can be relied a upon to the
extent to which it supports the prosecution version. Evidence of such witness
Reliability of hostile witness
cannot be treated as washed off the record. It remains admissible in the trial
and there is no legal bar to base conviction upon his testimony if
corroborated by other reliable evidence.

89) Salem Advocate Bar Association Vs. Union of India [(2005) 6

SCC 344] {held that the discretion to declare witness hostile has not been
conferred on the commissioner. The power delegated to a Commissioner
under Order XXVI Rules 16, l6A, 17 and 18 do not include the discretion that
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is vested in the Court under section 154 of the Evidence Act to declare a
witness hostile. If a situation as to declaring a hostile witness arises before a
Commission recording evidence the party concerned shall have to obtain
permission from the Court under section 154 and only after grant of such
permission that Commissioner can allow a party to cross examine his own
witness.)

Section 165, IEA 90) Nepal Chandra Roy Vs. Netai Chaodra Das (1971 SC) {the court
held as follows:

* The purpose of sec. 165 is to examine the truthfulness of the witness and
also the relevant fact and it is to make the evidence more clear and
intelligible.
* Though the court is free to ask questions as per Sec. 165 at any time, it
shall normally wait for the pleaders to complete their examination.

91) State of Rajasthan Vs. Annie (1997 SC) {the court observed as
follows:

* The sec. 165 uses the word ‘any question’ and thus gives a very wide
discretion to the court.

* There is nothing wrong in the judge becoming active and asking question
on his own.

* The judge can interfere even at the stage of cross examination.

92) Ram Chander Vs. State of Haryana (1981 SC) {the court held as
follows:

* The Court, the prosecution and the defence must work together as a team
and the purpose shall be to arrive at the correct decision.

* The court cannot try to intimidate the witness by threatening him of dire
consequence if he does not give the correct reply.

Sec. 311 CrPC (r/w 165 IEA) 93) Sethuraman Vs. Raja Manikam (2009 SC), (Decided on 18th March,
2009) {It was held that an application or order u/s 311 Cr.P.C. are
interlocutory orders and hence a revision is not possible. Appeal can be
made.)

94) Captain Amrendra Singh Vs. Prakash Singh Badal (2009 SC),
(Decided on 14th May, 2009) (the power of sec. 311 can be used even after
the evidences are over. In this case the question was, can the court call
witnesses on its own from the list of prosecution witnesses which was
furnished by the prosecution initially, after the prosecution evidence is over.

Section 311 provides for the power of the court to summon, recall, re-
examine any witness or to examine any person in attendance. Such power
can be exercised either suo nioto or upon an application by a party. If the
court summons a witness suo moto, it will be called a court witness and if he
is summoned upon an application, the witness will be called witness of the
party concerned.

In the case of a court witness, it is only the court which will examine the
witness and with pennission the opposite party can cross examine u/s 165
IEA. Whereas if it is a witness of a party, then party shall examine the
witness and the opposite party will get a right to cross examine. Though the
court is free in such a case also to examine the witness.}

95) Union Territory of Dadra & Nagar Haveli & Anr. Vs. Fateh Singh
Mohan Singh Chauhan (2006 SC) {the court held that the main test
under sec. 311 is not whether the party is rectifying its mistake, rather the
test is whether it is essential to take that evidence or not. If it js found to be
essential then even if it amounts t rectification of mistake, the court will allow
the application of sec. 311.)

96) Iddar & others Vs. Aabida & Anr. (2007 SC) (the second part of
see. 311 cast a duty upon the court to arrive at the truth by all lawful means
and one of such means is the examination of witnesses of its own accord if it
is essential to the just decision of the case.

Section 313 Cr.P.C. (Power of 97) Lalu Mahto & Anr Vs. State of Bihar (2008 SC) {thc court held the
the court to examine the court to examine the as follows:
accused) * The purpose of sec. 313 is only personal examination of the accused to
enable him to explain the circumstances.

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* It is essential that u/s 313 that the Court shall ask such questions as serve
the purpose of the provision, i.e.,the question shalibe effective and shall
afford a proper opportunity to the accused to explain the circumstances.

* Under 313(1) (b) it is mandatory and u/s 313 (1) (a) it is discretionary.
However if the exam of 313 was not done or not done properly, it is a curable
irregularity i u/s 465 Cr.P.C. i.e. the regularity per so will not defeat the trial
as such, rather, the court will examine whether there has been a failure of
justice due to the irregularity or not.

98) Inspector of Customs, Akhnoor, J&K Vs. Yashpal & Anr. (2009
SC), decided on 6th March, 2009) two more cases cited in this case (I)
Vibhuti Bhusan Das Gupta Vs. State of West Bengal 1969 SC and 2 Keya
Mukherjee v Magma Leasing Ltd. (2008 SC)

The court held as follows:

* The duty of the Court u/s 313 is to conduct the examination of the accused
effectively. Effectively here means, the accused should have been given a
proper explanation of charge against him and also he

* should have been informed specifically about the specific evidences against
him and., then specific questions related to such evidences shouW have been
asked. The accused may be ill malso and therefore it becomes the duty of the
burt uIs 313 to explain the questions propwk4o him.

* It is only in one case that the court can dispensed with such examination
i.e. if the court has in a summon case (u/s 205 CrPC) dispensed with the
personal appearance of the accued then then the court has the discreation to
dispense with the examination of 313(1) (b) as well.}

99) Sheikh Maqsoood Vs. State of Maharashtra (2009 SC), (Decided

on 4th May 2009)

100) Ranbir Yadav Vs. State of Bihar (2009 SC), decided on 5th may
2009

{ln both these cases the court held that sec 313 is not just exemptied
formality, rather, the court has to conduct the examination effectively to
afford earlier opportunity to the accused.)

Evidentiary value of the statement

101) Trimukh Maroti Kirkar Vs. State of Maharashtra (2006SC)

102) Gulabchand Vs. State of M.P. (1995 SC)

103) State of Tamil Nadu Vs. Rajendran (1999 SC)

{Held in these cases that evidentiary value of a statement made by the

accused u/s 313 is only to the extent of providing an additional link to the
existing evidences. It is not taken on oath and also the accused dons not
appear as a witness, therefore, it can’t be a substantive piece of evidence.
Clause 4 of the section declares it to be only something to be taken into
consideration and accordingly the court cannot base the convictioa on
statement of sec. 313. The role of see. 313 is only to the extent that when
the evidences of the prosecution are proved that the evidences are in
themselves sufficient or almost sufficient for conviction, then the court
examines whether the accused has any explanation to it or not, and if the
accused is not able to give any explanation to it, then the court gets the extra
assurance that the evidences are correct and sufficient to convict the
accused.}

Constitutionality of narco 104) Smt. Selvi and others Vs. State of Karnataka [(2010) 7 SCC
analysis test etc. 263, AIR 2010 SC 1974), decided on May 5 2010, 3 Judge Bench: K.G.
Balakrishnan, CJ., R.V. Raveendran and J.M.Panchal, JJ] {speaking through
K.G. Balakrishnan the court held as follows:

* The compulsory administration of the impugned techniques such as Narco

analysis, polygraph and Brain Electrical Activation Profile test, violates the
‘right against self incrimination’ This is because the underlying rationale of the
said right is to ensure the reliability as well as voluntariness of statements
that are admitted as evidence. This court has recognized that the protective
scope of Article 20(3) extends to the extends to the investit&o stage in
criminal cases and when read with Sec. 161(2) CtPC, it protects accused
persons, suspects as well as witnesses who are examined during

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investigation. The test results cannot be admitted in evidence if they have

been obtained through the use of compulsion. Article 20(3) protects an
individual’s choice between speaking and remaining silent, irrespective of
whether the subsequent testimony proves to be inculpatory or exculpatory.
Article 20(3) aims to prevent the forcible ‘conveyance of personal knowledge
that is relevant to the facts in issue’. The results obtained from each of the
impugned tests bear a ‘testimonial’ character and they cannot be categorized
as material evidence.

* Forcing an individual to undergo any of the impugned techniques violates

the standard of ‘substantive due process’ which is required for restraining
personal liberty. Such a violation will occur irrespective of whether these
techniques are forcibly administered during the course of an investigation or
for any other purpose since the tests results could also expose a person to
adverse consequences of a non-penal nature. The impugned techniques
cannot be read into the statutory provisions which enable medical
examination during investigation in briminal cases, i.e. the Explanation to
sections 53, 53A and 54 of the CrPC. Such an expansive interpretation is not
feasible in light of the nile of ‘ejusdem generis’ and the considerations which
govern the interpretation of statutes in relation to scientific advancements.

* Compulsory administration of any of these techniques is an unjustified

intrusion into the mental privacy of an individual. It would also amount to
‘cruel, inhuman or degrading treatment’ with regard to the language-of
evolving international human rights norms. Furthermore, placing reliance on
the results gathered from these techniques comes into conflict with the right
to fair trial’. Invocations of a compelling public interest cannot juitif’ the
dilution of constitutional rights such as the ‘right against self-incrimination.

* Even when the subject has given consent to undergo these tests, the test
results by themselves cannot be admitted as evidence because the subject
does not exercise conscious control over the responses during the
administration of the test. However, any information or material that is
subsequently discovered with the help of voluntary administered test results
can be admitted in accordance with section 27 of Ihe Evidence Act.

Recording of evidence through 105) State of Maharashtra Vs. Praful B. Desai (2003 SC) AND Kalyan
video conferencing Chandra Sarkar Vs. Rajesh Ranjan (2005 SC) {held that presence
require u/s 273 CrPC relates to physical presence in the court room as well as
a constructive prescnce i.e. the effectiveness of the examination has to be
seen and not whether the accused was actually physically present at the time
of examination or not. If the purpose of observing the demeanour can be
serve by video conferencing then such an examination shall not be deemed to
be violative of sec. 273 Cr.P.C.}

FALSUS IN UNO FALSUS 94 106) Rizan Vs. State of Chattisgarh (AIR 2003 SC 976) (held that even
OMNIBUS if major portion of evidence is found to be deficient in case residue is
sufficient to prove guilt of an accused notwithstanding ‘acquittal of number of
other co-accused persons, his conviction can be maintained. It is duty of
court to separate grain from chaff. Falsity of particular material witness or
material particular would not ruin it from the .beginning to end. The maxim
“falsus in uno falsus in omnibus” has no application in India and the witness
cannot be branded as liar.

Read in detail at pg no 303, Shailendra Malik Guide.)

Stock witness 107) Dudh Nath Pandey Vs. State of UP (AIR 1981 SC 911) {The
Hon’ble Supreme Court found that police had introduced a stock witness to
prove the recovery of the weapon of offence in a murder case. The question
of placing reliance on the testimony of such a witness does not arise. Once it
is proved on the record that a certain witness examined by the prosecution is
a stock-witness of the police, the court would be justified in discarding his
testimony.

Circamstantia1 evidence 108) Inspector of Police, Tamil Nadu Vs. John David [(2011) 5 SCC
509, Judgment by M K Sharma, J.J. {The Court held as follows: 1) In a case
based on circumstantial evidence it is well settled law that each and every
incriminating circumstance must be clearly established by reliable and
clinching evidence and the circumstances so proved must form a chain of
events from which the only irresistible conclusion that can be drawn is the I
guilt of the accused and that no other hypothesis against the guilt is possible.
2) It has been also held that in a case based on circvmstantial evidence the
court has to be watchful and avoid the danger of allowing the suspicion to
take the place of legal proof. There is long mental distance between ‘may be
true’ and must be true and the same divides conjectures from sure
conclusion. 3) Minor loopholes and irregularities in the investigation process
cannot form the Crux of the case on which the respondent can My upon to
prove his innocence when there are strong circumstantial evidence deduct
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 46

from the said investigation which logically and rationally points towards the
guilt of the accused.

109) Santosh Kumar Singh Vs. State through SBI [(2010) 9 SCC 747
decided on 06-10-2010 Harjit Singh Bedi and Chandramauh Kumar Prasad B
Judgement delivered by Harjit Singh Bedi, J.] {The conviction in this case is
based entirely on circumstantial evidence. Trial court acquitted the accused
for the offence of rape and murder charged under secs. 376/302 IPC. High
Court reversed the judgment and awarded the capital punishment. Apex
Court upheld the conviction by High Court but after considering the facts and
circumstances of the case, converted death sentence into Life Imprisonment.
Following were the circumstances on the basis of which guilt of the of the
accused has been proved beyond doubt.

1. The accused had been continuously harassing the deceased right from end
of 1994 to the end to January 1996, a few days before her death.

2. The accused had more than once given an undertaking that the accused
would not harass the deceased in future while admitting that the accused had
been doing so earlier.

3. The motive of the accused was to have the deceased or to beak her.

4. On the day of occurrence, the accused was seen in the premises of Faculty
of Law University of Delhi in the forenoon where the deceased had gone to
attend LL B class While the accused was no more a student of FacuIw of Law
at that time.

5. At the crucial time before murder i.e. about 5 pm on 23.1.96, the accused
was seen outside the door of the flat of the deceased, i.e. B-10/7098 with
helmet in his hand which had a visor.

6. On the day of occurrence after murder, the accused had reached late to
attend class at Indian Law Institute, Bhagwan Dass Road, where the accused
was a student too.

7. Immediately after the murder, the mother of the deceased had raised
suspicion that the accused had a hand in the murder of her daughter.

8. When the accused joined investigation on the night between 23/24.1.1996,

the accused had an injury on his right hand. There was swelling and fracture
on 5th metacarpal of right hand. There was no plaster or bandage on his
hand, that injury was fresh, having been caused 24 to 38 hours. The blood
pressure of the accused at that time was high which showed anxiety.

9. DNA Finger Printing Test conclusively establishes the guilt of the accused.

10. On 25.1.96, the helmet Ex.P.3 of the accused which was taken into
possession had broken visor. On 23.1.96 before murder, it was found by PW2
Shri Kuppuswani, PW Penonal Security Officer Rajinder Singh that the helmet
of the accused had a visor. Violence was detected on both sides of visor.
Helmet was besmeared with spec of blood. At the spot pieces of visor were
found near the body of the deceased besmeared with her blood.

11. The deceased had 19 injuries on her person besides three broken ribs.
These injuries were suggestive of force used for rape. A tear mark over the
area of left breast region on the T shirt of the deceased suggested that the
force was used for molestation.

12 The accused took a false defence that fracture on the hand of the accused
was sustained by the accused on 14.1.96 and it was not a fresh injury. The
accused also gave false replies against proved facts.

13.The influence of the father of the accused resulting in deliberate spoiling

of the case,

110) Dhananjay Chattetjee alias Dhanna Vs. State of West Bengal

[(1994) 2 SCC 220, A.S. Anand and N.P. Singh, JJ.] {Speaking through A.S.
Anand, J., the Court held in Para 7 of the judgment as follows: “It is settled
law that in a case based on circumstantial evidence, the circumstances from
which the conclusion of the guilt is to be drawn have not only to be fully
established but aLso that all the circumstances so established should be of a
conclusive nature and consistent only with the hypothesis of the guilt of the
accused.. Those circumstances should not be capable of being explained by
any other hypothesis, except the guilt of the accused and the chain of

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 47

evidence must be so complete as not to leave any reasonable ground for the
belief consistent with the innocence of the accused.)

111) Kalua Vs. State of UP. (AIR 1958 SC 180) (Bullet recovered from
the scene of the offence. A revolver was found from the possession of the
accused. Arms expert has given opinion that the said bullet was from the
revolver found in possession of the accused. Animosity between accused and
the victim has been proved. Court held coiiv on ground of circumstantial
evidence.

Few More Cases

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 48

THE CODE OF CRIMINAL PROCEDURE, 1973

LIST OF LANDMARK CASES/IMPORTANT NOTES ON IMPORTANT TOPICS

Sr. Sections/Topics Related Cases

No. (Including Definitions etc.)
Constitutional dimension of 1) Kesavanand Bharti Vs. Union of India (AIR 1973 SC 1473) (it
Cr.P.C. was held that certain basic features of the Constitution cannot be amended
under Art. 368 by the Parliament.

2) Maneka Gandhi v Union of india (1978 SC) {It was held in this
landmark case that any procedure providing for deprivation of life and
personal liberty has to be reasonable, fair, just and nonarbitrary. Thus, it
becomes a mandate to ensure that Cr.P.C. adheres to the above principles.
Accordingly certain amendments were made in Cr.P.C. in l978.}

3) Ajay Hasia v Khalid Mujib (1981 SC) (the principle of natural justice
as well as the concept of equality and non arbitrariness were emphasized.)

Note: All the above Constitttional developments and many other landmark
Judgments have ultimately resulted into a rigid Constitutional requirement
that the procedure in the Cr.P.C. has to be in line with the principles of
natural justice i.e. audi alterem partem and also nemo judex in causa sua.
The various provisions in the Cr.P.C. for instance the manner and method of
charge framing and requirement of reading and explaining to accused, the
requirement of handling over all the documents to accused for defence, the
provision of cross examination, the provision of 165 IEA as well as 311 and
313 of Cr.P.C., the special procedure of search and seizure as well as
special safeguards in the mafter of arrest, right to free legal aid and speedy
trial, cardinal principle of criminal jurisprudence that an accused to be
presumed to be innocent unless his guilt is proved beyond all reasonable
doubt are all a manifestation of the Constitutional mandates of fairness and
non arbitrariness in procedure.)

Specific time frame for deciding 4) P Ramchandra Rao Vs. State of Karnataka (2002 SC) (held that a
a case time frame for judicial proceeding can’t be fix by the court. It is domain of
legislature.}

Interpretation of the phrase 5) Selvi Vs. State of Karnataka [(2010) 7 SCC 263, AIR 2010 SC
‘and such other tests’ which 1974, 3 Judge Bench, Judgment delivered by K.G. Balakrishnan, CJ. On
appears in the explanation to May 5 2010] (the court held that the phrase ‘and such other tests which
secs. 53, 53A and 54 of the appears in the explanation to secs. 53, 53A and 54 of the CrPC should be
CrPC. read so as to confine its meaning to include only those tests which involve
the examination of physical evidence.

The explanation to sec. 53, 53A and 54 of the CrPC (amended in 2005)
provides that examination shall include the examination of blood, blood
stains, semen, swabs in case of sexual offences, sputum and sweat, hair
samples and finger nail clippings by the use of modern and scientific
techniques including DNA profiling and such other tests which the
registered medical practitioner thinks in a particular case. The court held
that whatever tests are provided under explanation to these sections all
pertains to examples of physical evidence. Hence the words ‘and such other
tests’ should be construed to include the examination of physical evidence
but not that of testimonial acts.

New dimension in section 125 6) Pyla Mutyalamma Vs. Pyla Suri Demudu (Date of Judgt Aug 9
Cr.P.C. 2011), (H.S. Bedi and Gyan Sudha Mishra, JJ) (The SC has held that if the
second wife was deserted by her husband, shei’ill be entitled to get
maintenance from him under section 125 Cr.P.C., notwithstanding the
validity of the marriage. The Court observed “In a ease under section 125
Cr.P.C. the Magistrate can take a prima facie view of the mattter and it is
not necessary for him to go into matrimonial disparity between the parties
in detail in order to deny maintenance to the claimant wife. Writing the
judgment Justice Sudha said : “In a case under secbon 125 CrPC proceeds
on de facto marriage and not marriage de jure. Thus ‘validity of the
marriage will not be a ground for refusal of maintenance if other
requirements of section 125 Cr.P.C. are fulfilled.”

7) Savitaben Somabhai Bhatia Vs. State of Gujarat {Held that only a

legally wedded wife can claim maintenance u/s 125 CrP.C...)

8) Mohd. Ahmad Khan Vs. Shah Bano Begum (AIR 1985 SC 945) {5
Judge bench, judgment delivered by Y.V. Chandrachud, held that a divorced
Muslim woman who has remained unmarried and is unable to maintain
Muslim divorced women’s right herself can file a petition under sec. 125 CrPC againit her Ex-husband for
of maintenance under 125 CrPC maintenance even after the period of iddat. }

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 49

Note: this judgment created huge controversy among the Muslim

community as prior to this judgment a Muslim husband was under no
obligation to maintain her divorced wife after the period of iddat, but the
judgment has extended the right of Muslim divorced women to claim
maintenance even after the period of iddat.

In order to set this controversy, the Parliament has enacted the Muslim
Women (Protection of Rights on Divorce) Act, 1986 to dilute the judgment
of the Hon’ble Supreme Court.

9) Danial Latifi and another Vs. Union of India [(2001) 7 SCC 740]
(5 judge bench, judgment delivered by S. Rajendra Babu, upholding the
validity of the Act, The Hon’ble Apex Court arrived at the following
conclusions and held as under

* The former husband of a divorced Muslim wife is liable to make a

reasonable and fair provision for the future of such divorced wife which
obviously includes her mainten’ance as well. Such a reasonable and fair
provision extending beyond the iddat period, must be made by the husband
also within the iddat period in terms of sec. 3(1) (a) of the Act.

* Liability of Muslim husband towards his divorced wife to pay maintenance

is not confined to iddat period. It would extend to the whole life of the
divorced wife unless she gets married for a second time.

* The provisions of the Act are not violative of Articles 14, 15 and 21 of the
Constitution.

Dwelling upon the decision in the Shah Bano’s case and its impact on this
Act the SC observed that ‘though it may look ironical that the enactment
intended to reverse the decision in Shah Bano case, actually codified the
very rationale contained therein [Para 29, last line]

10) Shahbana Bano v Imran Khan (2010) 1 SCC 666] {a division

bench of the SC speaking through Deepak Verma J. held that a Muslim
divorced wife can file a petition u/s 125 CrPC even in the absence of any
declaration by both the parties under sec. 5 of the Muslim Women
(Protection of Rights on divorce) Act 1986. The court further held that even
if a Muslim woman has been divorced, she would he entitled to claim
maintenance from her husband u/s 125 Cr.P.C. after the expiry of penod of
iddat also, as long as she does not remarry.}.

Interpretation of the term ‘his’ 11) Keertikant Vadodari Vs. State of Gujarat (1996 SC) {held that
appearing in section 125(I)(d) the word his used in 125(1)(d) includes her and therefore parents can claim
maintenance from daughter also.

The court further held that the mother in sec 125(1)(d) has to be a natural
mother or even an adoptive mother but not a step mother. But if the step
mother is the childless widow or if she is childless and husband is unable to
maintain her then in these two cases even a step mother is entitled to claim
maintenance from the step child. However, father cannot claim maintenante
from illegitimate or a step child.

FIR by telephone 12) Ravishwar Manjhi Vs. State of Jharand (AIR 2009 SC 1262) {a
mere information received on phone by a Police Officer without any details
as regards the identity of the accused or the nature of injuries caused by
the victims as well as the name of the culprits may not be treated as FIR.

FIR, Sec. 154 13) State of Haryana Vs. Bhajan Lal (1992 SC) (it Was held as
follows:

* It is a duty of a police officer incharge that he shall take the FIR upon
information of a cognizable offence

* Such duty shall be fulfilled promptly and if not fulfilled then the infonnant
has the remedy under 154(3) and sec. 36.

* The court drew an analogy with see. 41(1)(a) and observed that the word
reasonable and credible information has been used in sec. 41(lXa) where it
is deliberately omitted in sec. 41 . It suggests that in the cases of FIR, the
reasonableness or credibility of the information need not be examined.

14) Ramesh Kumari Vs. NCT of Delhi (2006 SC) (it was held that
registering of the FIR is must and sufficient and insufficiency of the ground
for investigation are a post FIR situation and they needn’t be examined at
the time of lodging the FIR. It was also held in this case that however the
police can conduct a preliminary investigation to find out whether a
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 50

cognizable offence has been committed or not.}

FIR against Superior officer 15) A. Nallaseewan Vs. State of Tamil Nadu & others (1995 Mad)
(held that a police officer is bound to take the FIR even if it is against his
superior police officer.}

Multiple FIR 16) T T Anthony v State of Kerala (2001 SC) Mohd Yusuf Vs Afaq
Jahan (2006 SC) & Ramesh Chandra Nandlal Parekh v State of Gujarat &
others (2006 SC) {held in these cases as follows:

* The court supported an investigation on the basis of a single FIR- If the

first FIR satisfied the requirements of sec 154 then there is no need of
subsequent FIR and the investigation can be conducted on the basis of that
single FIR.

* If for the same offence or several offences committed in the same

transaction several FIR has been lodged then HC has the power u/s 482 to
quash the subsequent FIRs

Delay in filing FIR in rape cases 17) State of Punjab Vs. Gurmit Singh (1996 SC) {held that the courts
is not material cases is not material tannot overloak the fact in sexual offences delay in the
lodging of the FIR can he due to variety of reasons particularly the
reluctance of the prosecutnx or her family members to go to the police
complain about the incident which concerns the reputation of the
prosecutrix and the honour of the family. It is only after giving a cool
thought that a complaint of sexual offences is generally lodged.}

If police officer refuses to 18) Sakiri Vasu Vs. State of U.P. [(2008) 2 SCC 409] (Speaking
regtater FIR through Markanday Katju the Court held in Para 26 that if a person has a
grievance that his FIR has not been registered by the police station, his first
remedy is to approach the Superintendent of Police u/s 154(3) CrPC or
other police officer referred to in section 36 CrPC. If despite approaching
the Superintendent of Police or the other officer referred to in section 36 his
grievance still persists, then he can approach a Magistrate u/s 156(3) CrPC
instead of rushing to the Hon’ble High Court by way of a Writ petition or
under section 482 CrPC. Moreover, he was a further remedy of filing a
criminal complaint under section 200 CrPC.

Although in Para 28 the court observed that alternative remedy is not an

absolute bar to a writ petition but it is equally well settled that if there is an
alternative remedy the Hon’ble High Court should not ordinarily interfere.

It is not necessary that FIR 19) Superintendent of Police, CBI Vs. Tapan Kumar Singh (AIR
must disclose all facts and 2003 SC 4140) (it was observed that it is well settled that a First
details relating to the offence. Information Report is not an encyclopedia, which must disclose all facts and
details relating to the offence reported. An informant may lodge a report
about the commission of an offence though he may not know the name of
the victim or his assailant. He may not even know how the occurrence took
place. A first information need not necessarily be an eye witness so as to be
able to dkclose in great details all offence of offence committed. What is of
significance is that the information given must disclose the commission of a
cognizable offence and the information so lodged must provide a basis for
the police officer to suspect the commission of a cognizabie offence.)

Widening of magisterial powers 20) AR Antulay Vs. R S Nayak (1992 SC 5 Judge Bench) & R
u/s 156(3) Ramchandra Rao Vs State of Karnataka (2002 SC, 7 Judge Bench)
{Fixation of upper limit is not possible and the court can interfere only when
it finds that the investigation is being done malafidely and unreasonably.
The court also held that judiciary and executive shall remain within their
respective domain.}

21) Mohd Yusuf Vs. Afaq Jahan (2006 SC) & Dilawar Singh v State
of Delhi (2007 SC) {the court held as follows:

* An order u/s sec. 156(3) for registration of FIR can be passed only before
the taking of cognizance.

* Though sec. 156(3) does not explicitly declare that an FIR has to be
taken, it is mandatory for the police officer incharge to take an FIR upon
such order.

* It was also held in Dilawar Singh case that even after the order of
Magistrate u/s 156(3) the police officer does not start investigation then the
aggrieved party is free to move once again to the concerned magistrate u/s
156(3)

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 51

22) Sakiri Basu v State of UP [(2008) 2 SCC 409] {the court widened
the scope of magisterial powers under sec 156(3) and held as follows:

* Power u/s 156 (3) is not limited only to the passing of an order for the
purpose of lodging FIR or initiating the investigation rather it contains in
itself all incidental and ancilliary powers to make the order of see- 156(3)
more effective. Thus even after such an order, if the investigation is not
conducted properly then a subsequent order u/s 156(3) can be passed.
Even if the investigation is being conducted but malafiedly and improperly,
the subsequent order to conduct proper investigation under sec. 156(3) can
be passed.

* Even if the FIR has been lodged on its own by the police officer and
thereupon the investigation is being conducted but improperly, the order of
156(3) can be passed.

* It is also held that as an incidental and incilliary power under see. 156(3)
the magistrate has a monitoring and supervisory power upon the
investigation proceeding.

Recall of order u/s 156(3) is 23) Dharmeshbhai Vasudevbhai & others Vs. State of Gujarat &
not within the authority of the others (2009 SC) {the question was can a magistrate stop an
Magistrate. investigation and can be recall his order of investigation u/s l56(3). The
court held that the magistrate does not have an inherent power so as to
pass distinct orders as compared with the orders that he is authorized to
pass. Interference with the statutory power of investigation by the police is
not allowed in Cr.P.C. and in particular the order to stop the investigation
can’t be pass. Once an order u/s 156(3) has been passed and complied
with, hereafter an order to withdraw the earlier order so as to stops the
investigation can’t be passed.

Difference between Difference between investigation ordered under section 156(3) and 202
investigation ordered under
section 156(3) and 202 24) Devarapalli Lakshminarayan Reddy Vs. Vs. Narayan Reddy
[1976) 3 SCC 252] {the court makes out the following difference between
investigation u/s 156(3) and 202(1)

Firstly –
Sec 156(3) occurs in Chapter XII under the caption: “information to the
police and their power to investigate”
Sec 202 is in Chapter XV which bears the heading: “Of Complaints to
magistrates”.

Secondly –
Sec 156(3) is exercisable at the pre-cognizance stage
Sec 202 is exercisable at the post-cognizance stage

* It the case of a complaint regarding the commission of a cognizable

offence, the power u/s 156(3) can be invoked by the Magistrate before he
takes cognizance of the offence u/s 190(1)(a). But If he once takes the
cognizance and embarks upon the procedure embodied in Chapter XV he is
not competent to switch back to the pre-cognizance stage and avail of sec.
156(3).

The court held that an order made under sub-section (3) of section 156 is in
nature of peremptory reminder or intimation to the police to exercise their
plenary powers of investigation u/s 156(1). Such an investigation embraces
the entire continuous process which begins with the collection of evidence
u/s 156 and ends with a report or charge sheet u/s 173. On the other hand
Section 202 comes in at a stage when some evidence has been collected by
the Magistrate in proceeding under Chapter XV, but the same is deemed
insufficient to take a decision as to the next step in the prescribed
procedure. In such a situation, the Magistrate is empowered u/s 202 to
direct within the limits circumscribed by that section an investigation for the
purpose of deciding whether or not there is sufficient ground for
proceeding’. Thus the object - of an investigation a/s 202 is not to initiate a
fresh case on police report but to assist the Magistrate in completing
proceedings already instituted upon a complaint before him.

Whether second complaint on 25) Pramatha Nath Talukdar and another v Saroj Ranjan Sarkar
same fact is maintainable after (AIR 1962 SC 876) {Apex Court held that there is no statutory bar in
the dismissal of complaint filing a second complaint on the same facts but it should fall within
under section 203? exceptional circumstances. Following can be regarded as some exceptional
circumstances:

* Where the previous order of dismissal was passed on an incomplete

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 52

record; or

* Where the previous order was the result of a misunderstanding of the

nature of the complainant; or

* Where previous order was manifestly absurd or unjust or foolish; or

* Where new facts are adduced in the second complaint which could not,
with reasonable diligence, have been brought on the record in the previous
proceedings.)

26) Mahesh Chand Vs. B. Janardan Reddy and another (2003 SC)
{The Court followed Pramatha Nath.)

27) Poonam Chand Jain and another Vs. Fazru (2005 SC) {same
thing}

28) Hira Lal and others v State of U P and others (AIR 2009 SC 2380)
{same thing has been reiterated by The Hon’ble Apex Court)

Occurrence Report, sec. 157 Occurrence Report, see. 157 and 159
and 159
29) Ravindra Mahto & others Vs. State of Jharkhand (2006 SC),
Mehraj Singh Vs State of UP (1994 SC) & Arjun Marik Vs. State of
Bihar (1997 SC) {held in these cases as follow:

* The occurrence report shall be sent promptly i e forthwith

* Sees 157 arid 159 are for the purpose of avoiding police inaction,

* Sec I59 confer the power of preliminary inquiry only and not a full fledged
inquiry parallel to the investigation proceeding.

* It is only when the police officer has chosen not to investigate that the
order of see 159 can be made

30) S. N. Sharma Vs Vipin Kumar Tiwari (1970 SC) {held that the
order of sec 159 can be made by the magistrate only upon the receipt of
the occurence Report.

Section 160 and 175 Section 160 and 175

31) Harkirat Singh Vs. State of Punjab (1997 SC) {held that power to
summon such witnesses is there u/s 160 as well as under 175 but the
examination has to be done subject to the requirement of secs 161 and
162)

32) Malkiat Singh v State of Punjab (1991 SC) (held that the
statement which are recorded under 175 shall not be signed by the witness

Comparison between 161(2) of Comparison between 161(2) of CrPC AND 132 of Indian Evidence Act
CrPC AND 132 of Indian
Evidence Act. 33) Selvi v State of Karnataka [(2010) 7 SCC 263 AIR 2010 SC
1974) (3 Judge Bench Judgment delivered by KG Balakrishnan CJ On May
5 2010.] (the court held that even though sec 161(2) of the CrPC casts a
wide protective net to protect the formally accused persons as well as
suspects and witnesses during the investigative stage section 132 of the
Evidence Act limits the applicability of this protection to witnesses during
the trial stage. The latter provision provides that witnesses cannot refuse to
answer questions during a trial on the ground that the answer could
incriminate them. Therefore the protection accorded to witnesses at the
stage of trial is not as wide as the one accorded to the accused, suspects
and witnesses during invügation.

Comparision between 20(3) of Comparision between 20(3) of the Indian Constitution AND 161(2) of CrPC.
the Indian Constitution AND
161(2) of CrPC. 34) Selvi Vs. State of Karnataka [(2010) 7 SCC 263, AIR 2010 SC
174]. 3 Judge Bench, Judgment delivered by K.G. Balakrishnan, CJI,
Decided on May 5 2020] {held that there is a requirement of formal
accusation for a person to invoke Article 20(3). On the other hand there is
no such requirement u/s 161(2) CrPC. It must be noted that the protection
contemplated by sec. 161(2) CrPC is wider than Article 20(3). Section
161(2) read with 161(1) protects ‘any person supposed to be acquainted
with the facts and circumstances of the case’ in the course of examination
by the police.

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 53

Section 162 CrPC 35) Tahsildar Singh Vs. State of UP. [(AIR 1959 SC 1012), Six Judge
Bench, B. P. SINHA, S. J. IMAM, S. L KAPUR, A. K. SARKAR, K. SUBBA RAO
AND M. HIDAYATULLAH JJ.] The Court Speaking through K. Subba Rao, J.
Held as follows: (1) A statement in wnting made by a witness before a
police officer in the course of investigation can be used only to contradict
his statement in the witness box and for no other purpose; (2) statements
not reduced to writing by the police officer cannot be used for contradiction.
(3) though a particular statement is not expressly recorded, a statement
that can be deemed to be part of that expressly recorded can be used for
contradiction not because it is an omission strictly so-called but because it is
deemed to form part of recorded statement (4) such a fiction is permissible
by construction only in the following three cases (i) when a recital is
necessarily implied from the recital or recitals found in the statement:
illustration: in the recorded statement before the police, the Withess states
that he saw A stabbing B at a particular point of time but in the witness box
he says that he saw A and C stabbing B at the same point of time; in the
statement before the police the word “only” can be implied i.e. the witness
saw A only stabbing B (ii) a negative aspect of a positive recital in a
statement: illustration: ‘In a the recorded statement before the police the
witness says that a dark man stabbed B but in the witness box he says that
a fair man stabbed B; the earlier statement must be deemed to contain the
recital not only that the culprit was a dark complexioned man but also that
he was not of fair complexion; and (iii) when the statement before the
police and that before the Court cannot stand together: illustration: the
witness says in the recorded statement before the police that A after
stabbing B ran away by a northern lane, but in the Court he says that
immediately after stabbing he ran away towards the southern lane; as he
could not have run away immediately after the stabbing i.e. at the same
point of time, towardsthe northern lane as well as towards the southern
lane, if one statement is true, the other must necessarily be false.

As to the meaning of ‘contradiction’, it has been stated thus “the statement

before the police and the statement in evidence before the court are so
inconsistant and irreconcilable with each other that both of them cannot co-
exist, it may be said that one contradicts the other.”

Section 162 enables the prosecution to re-examine the witness to explain

the matters referred to in the cross-examination. This enables the
prosecution to explain the alleged contradiction by pointing out that if a part
of the statement used to contradict be read in the context of any other part,
it would give a different meaning: and if so read, it would explain away the
alleged contradiction.)

36) State of Rajasthan Vs Teja Ram & others (1999 SC) {if any
investigating officer, ignorant of the said provision, secures the signature of
the person concerned in the statement, it does not mean that the witness’s
testimony in the court would thereby become contaminated or vitiated. The
Court will only reassures the witness that he is not bound by such
statement albeit his signature finding a place thereon.)

Effect of taking signature by the person giving the statement

37) Shakila Vs. Nausher (AIR 1375 SC 1324) (held that under section
162 CrPC., only witnesses on behalf of the prosecution could be
contradicted by reference to their statements made to the police, and not
court witnesses or defence witnesses.}

Can a person directly go the 38) Jogindar Nahak Vs. State of Orissa (2000 SC) (held that a person
Magistrate for recording u/s164 can’t go directly even in the course of an investigation to get his statement
CrPC? recorded. If this is allowed, that would result into misuse of the process and
also overburdening of the Magistrates.

39) Mahabir Singh Vs. State of Haryana (2001 SC) (it was held that if
the accused directly goes to the Magistrate for recording his confession
without the police sponsoring him then the duty of the Magistrate is to
inform the police and thereupon to record the confession as per the
proceedings taken by police. However if the Magistrate directly takes the
confession then it is not an illegal confession. The Magistrate has to insure
before taking such confession that the confession was made in the course
of an investigation.

Explanation of the term police 40) Director of Enforcement Vs. Deepak Mahjan & Another (1994
appeared in section167(1) SC) {held that the arrest and custody as required under sec. 167(1) need
not be only by a police officer rather it can be even under the statutory laws
which empowered certain officers to arrest and detain of person who violate
law.

Here, even if such authorized person doesn’t have the power of

investigation in the forma sense as under Chapter XII, they can still produce
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the arrestee before the Magistrate. Even if no formal elaborate investigation

can be done, there is to be done some investigation by such officer for the
purpose of either filing a complaint before the Magistrate or lodging the FIR
in the concerned police station.

As far as the production of case diary is concerned even if such officer don’t
record case diary, they will definitely make documentation. For instance the
arrest and the seizure memo as well as the recording of statement etc.
Instead of case diary such officers can produce these documents before the
Magistrate.

Police custody after first days 41) Buddha Singh Vs. State of Punjab {held that police custody after
as provided u/s 167 the first 15 days can’t be granted in any circumstances in the same case;
even if some new offences are discovered in the same case.}

Right of bail u/s 167(2) 42) Uday Mohan Lal Acharya Vs. State of Maharashtra [(2001) 5
SCC 453, AIR 2001 SC 1910, 3 Judge Bench, GB. Pattnaik, U.C.Baneijee
and B.N. Agrawal, JJ] Majority view: G.B. Patnaik and u.c. Baneijee, JJ.
Minority view: B.N. Agrawal, J.

{The question in this case was whether the right to bail u/s 167(2) would
get defeated even after the application forthe bail has been moved, if the
charge sheet has been filed. The.courtobserved that Personal liberty is one
of the chenshed objeLpts of the Indian Constitution and depnvation of same
can be only in acctitdance with law and in conformity with the provisiont
thereof as stipulated under Article 21 of the Constitution. When the law
provides that the Magistrate could authorize the detention of the accused in
custody up to a maximum period as indicated in the proviso to sub section
(2) of section 167, any further detention beyond the period without filling of
challan by the investigation agency would be a subterfuge and would not be
in accordance with law and in conformity with the provisions of the CrPC
and as such could be violative of Article 21 of the Constitution. The court
held as follows:

* That the right to bail after 90 or 60 days is a statutory indefeasible right

i.e. once 60 or 90 days period is over, in no circumstances can the bail be
denied if the charge sheet has not yet been filed. However the bail has to
be obtained only upon the order of Magistrate and therefore the bail
application has to be moved by the accused, i.e. the bail after 60 or 90 days
is not automatic, the accused has to avail that right.

* The right will be said to avail upon moving of bail application by accused
and if order of bail is made then upon furnishing the bail i.e. the security.

* It is the duty of the Magistrate to decide the bail application forthwith i e

promptly as if the bail application is pending and charge sheet is filed in
between then also the right to bail will not be defeated.

* If the bail application was rejected erroneously and accused has gone in
appeal against bail application, if charge sheet is filed in between then the
right to bail will not get defeated.

* If the accused is unable to furnish the bail, as directed by the Magistrate,

then the conjoint reading of Explanation I and proviso to subsection (2) of
section 167, the continued custody of the accused even beyond the
specified period will not be unauthorized, and therefore, if during that
period the investigation is complete and police has submitted the charge
sheet against the accused then the bail under 167 (2) w ould get defeated.

Period of remand or judicial 43) State of West Bengal Vs. Dinesh Dalmia (2007 SC) {held that
custody will be counted from remand period of 15 days and subsequent period of 75 or 45 days as the
the date of production case may be, will be counted only from the date of production of the
accused.)

Whether the conclusion derived 44) Nupur Talwar Vs. Central Bureau of Investigation, Delhi
by the police in Police Report is [{2012) 2 SCC 188]
binding on the Magistrate.
45) India Carat Pvt. Ltd. Vs. State of Karnataka (AIR 1989 SC 885)
{it was held that upon receipt of a police report under section 173(2) a
Magistrate is entitled to take cognizance of an offence under section 1900)
(b) of the Code even if the police report is to the effect that no case is
made out against the accused. The Magistrate can take into account the
statements of the witnesses examined by the police dunng investigation
and take cognizance of the offence complained of and order the issue of
processto the accused Section 190(1)(b) does not lay down that Magistrate
can take cognizance of an offence only if the investigating officer gives an
opinion that the investigation has made out a case against the accused. The
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 55

Magistrate can ignore the conclusion arrived at by the investigating officer

and independently apply his mind to the facts emerging from the
investigation and take cognizance of the case if he thinks fit, in exercise of
his power under section 190(1)(b) and direct the issue of process to the
accused. The Magistrate is not bound in such a situation to follow the
procedure laid down in sections 200 and 202 of CrPC for taking cognizance
of a case under section 190(1)(a) though it is open to him to act under
section 200 or section 202 also.}

Supplementary investigation... 46) Ram Lal Narang Vs. Delhi Administration (1979 SC) {the court
section173(8) held as follows

* Supplementary investigation and supplementary charge sheet is

conditional upon the filing of original police report.

* As a matter of prudence supplementary investigation, officer shall obtain

permission this is not a rule of law.

* However, if the investigation has been stopped after police report and the
inquiry or trial has commenced and now the police officer wants to start the
investigation, he shall seek the permission of the Magistrate.

47) Dinesh Dalmia Vs. CBI (2007 SC) {The court held as follows:

* The police officer concerned can continue with supplementary

investigation even after filing of charge sheet without taking permission or
even after cognizance has been taken.

* A charge sheet can be filed and cognizance van be taken even if some
documents are yet to be filed.

* Once the cognizance has been taken or charge sheet has been filed, the
magisterial capacity changes to section 309 and thereafter police custody
cannot be granted.

* If a Magistrate has taken cognizance of a case, he takes cognizance with

respect to all person in charge sheet. The court can’t revert back to pre
cognizance stage because for the purpose it will have to withdraw the
cognizance as well as Charge sheet which is not possible. Therefore the
extreme justification for that pm-pose is if after taking cognizance one of
the named accused is arrested in supplementary proceeding then his case
will not revert back to 167 and therefore if he is kept in custody in 60 or 90
days as the case may, he can’t claim default bail as section 167 is not
applicable.

48) State through CBI Vs. Dawood Ibrahim Kaskar (2000 SC) {it
was held that once cognizance of case with respect to accused has been
taken if during supplementary investigation other accused is also arrested
then the police does not have the right u/s 167(2) to obtain the remand of
such accused. The proceeding with respect of such accused at that stage
will not be the proceeding related to 309 rather it still be proceeding under
section 167.

Cases on protest petition 49) Bhagwant Singh Vs. Commisioner of Police (AIR 1985 SC
1285)

50) Institute of Medical Sciences Employee Union Registered Vs.

Union of lndia (1996 SC)

5I) Gangadhar Mhatre v State of Maharastra and others (2004 SC)

{ln these cases the SC has explained the concept of protest petition. Upon
filing the police report (either a charge sheet or closure report) the
Magistrate is not bound by the police report and therefore he may take the
cognizance even if a closure report has been filed or may refuse to take
ognizance even a charge sheet has been filed. Whenever a Magistrate
decided not to take the cognizance, it is in the interest of natural justice
that he shall serve notice of such decision to the informant. Upon such
notice the informant is free not to take any further action or to lodge a
complaint before a Magistrate or to file an application or protest against
such decision. The Magistrate is duty bound to provide a proper hearing to
the complainant upon such protest application (petition). After the hearing,
the Magiste may decide to take cognizance upon such police report or may
still refuse to take cognizance or he may instead of taking cognizance on
police report, take the protest application as complaint and take cognizance
upon complaint and continue with the complaint proceeding.}

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 56

Whether protest petition be 52) Gopal Vijay Verma Vs. Bhuneshwar Prasad Sinha [1982) 3 SCC
entertained even after 510] (Police filed final report and same was accepted by the Magistrate.
acceptance of closure report Thereafter protest petition was filed. Magistrate entertained that protest
petition and after taking evidence of complainant issued process against
accused. Said order was quashed by Rihar High Court holding that if
Magistrate takes cognizance on the basis of the complaint petition then in
that case he should not accept the final report. If once he acccpts the final
form then on the same facts constituting the offence, he is not entitled to
take cognizance on the basis of complaint petition or protest petition
because that will result in two inconsistent orders passed by the judicial
officer. When matter went in Sunreme CotJt was held that High Court was
clearly in error in thinking that the Magistrate could not take cognizance of
a case upon complaint because he had earlier refused to take cognizance of
a case on a police report. The order of the Hon’ble High Court thus was set
aside.

53) Munnilal Vs. Nawal Kishore (1985 Crl.LJ) 437) {the court
reiterated the same point.)

54) Jitendra Kumar Agarwalla Vs. State of Bihar (2000 CrLJ Pat
2730) {held that where Magistrate accepted the final report submitted by
police under 173 and discharged the accused and thereafter complainant
filed complaint corn-protest petition unfoldmg new facts magistrate can
take cognizance and frqj* enqq’q under section 202)

On section 190(1) (a) and 200 55) Tula Ram & others Vs. Kishore Singh (1977 SC) AND SREF
i.e. cognizance on complaint Finance Limited Vs. Shree Shanti Homes Pvt. Ltd. and another
(2005 SC) {held that the word ‘taking’ in sect. 200 is suggesting a
continuity of the provision of sec 190(1)(a) and sec. 200. Whenever a
Magistrate receives complaint he will either take cognizance or refuse to
take congnizance. It is only when he prefers to take cognizance that he will
pass an order u/s 200. Since such an order is a manifestation of the
cognizance taken by the Magistrate, it is provided in sec 200 that the
examination of sec 200 is in the process of taking cognizance. However the
proceeding of sec. 200 is a post cognizance proceeding, the Magistrate may
conduct the examination on the same day when he takes the cognizance or
he may fix some other day for such examination.}

Section 197 i.e. sanction for 56) P K Pradhan Vs State of Sikkim (AIR 2001 SC 2547) {it has been held
prosecution of public servant if that:
act committed in the course of * legislative mandate engrafted in section 1970) debarring a court from
official duty taking cognizance of an offence except with the previous sanction of the
Government concerned in a case where the acts complained of are alleged
to have been committed by a public servant in discharge of his official duty
or purporting to be in discharge of his official duty and such public servant
is not removable from office save by or with the sanction of the government
touches thejurisdiction of the court itself.

* The offence alleged to have been committed must have something to do,
or must be related with some manner, with the discharge of official duty.
No question of sanction can arise under 197, unless the act complained of is
an offence, the only point for determination is whether it was committed in
the discharge of official duty. There must be reasonable connection
between act complained and official duty. Even if the act complained
exceeds the statutory powers given to the public servant but related to his
official duty, a prosecution without sanction is not good.

In a case triable exclusively by 57) Shivjee Singh v Nagendra Tiwari [(20101 SCC 5780, (Judgment
court of Session, what would by G.S. Singhvi, J.] {Held, even though in terms of the proviso to section
happen if in a complaint case, 202(2), the Magistrate is required to direct the complainant to produce all
the Magistrate issue process his witnesses and examine them on oath, failure or inability of the
without examining all the complainant or omission on his part to examine one or some of the
prosecution witness? witnesses cited in the complaint or whose names are furnished in
compliance with the direction issued by the Magistrate, will not preclude the
latter from taking cognizance and issuing process or passing committal
order if he is satisfied that there exists sufficient ground for doing so. Such
an order passed by the Magistrate cannot be nullified only on the ground of
non-compliance with thç proviso to section 202(2) The court observed that
if violation of procedural provision does not result in denial of fair hearing or
does not cause prejudice to parties, such provision has to treated as
directory notwithstanding use of the word “Shall”. The Court in this case
relied upon Rosy Vs. State of Kerala.}

58) Rosy Vs. State of Kerala (AIR 200 SC 637) {heId that if there is
non compliance of proviso to sub section (2) of section 202 i.e. the
Magistrate has issued the process without examining all prosecution
witness, it does not by itself vitiate the trial unless prejudice caused to the
accused.}

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 57

Recording of evidence through 59) State of Maharashtra Vs Praful B Desai (2003 SC) AND Kalyan
video conferencing Chandra Sarkar Vs Rajesh Ranjan (2005 SC) (held that presence
require u/s 273 CrPC relates to physical presence in the court room as well
as constructive presence i.e. the effectiveness of the examination has to be
seen and not whether the accused was actually physically present at the
time of examination or not. If the purpose of observing the demeanour can
be serve by video conferencing then such an examination shall not be
deemed to be violative of sec. 273 CrPC.}

Recall of issue of process 60) Adalat Prasad Vs. Roop Lal Jindal & others [(2004) 7 SCC 338]
{held that if a Magistrate issue process under sec 204 then it cannot be
recalled on the application of the person who raised objection regarding
such issuance. Such issue of process can be quashed by High Court under
section 482 CrPC. }

Section 245(2) i.e. when Section 245(2) i.e. when accused shall be discharged In cases
accused shall be discharged In otherwise than on a police report even before examination of
cases otherwise than on a prosecution witnesses
police report even before
examination of prosecution 61) Page No: 518 of Kelkar CrPC (Fourth Edition 2001, reprinted in 2004)
witnesses {the intendment behind section 245(2) is that the complaint should not be
allowed to be proceeded with on a charge which is a groundless one in
order to prevent undue harassment of the accused persons It is open to the
Magistrate to discharged the accused without taking any evidence if he is
otherwise satisfied on matenals that the charge is groundless one It is true
that ordinarily the Magistrate should record evidence and proceed under
section 244, and thereafter to take further proceedings under section
245(l). But it is equally true that in view of the language employed by the
legislature in S. 245(2) there is no bar against the magistrate in discharging
the accused even without recording the evidence in an appropriate case.
For instance, when a person against whom a process is issued by a criminal
court feels that proces ought not to have been issued either for want of any
statutoiy sanction or on the ground that the averments made in the
complaint make out no case, or on any other such ground, it would be open
to the accused concaned to move the magistrate issuing the process to
discharge him even before the evidence is recorded.

Sub-section (2) of section 245 gives ample jurisdiction to the magistrate to

discharge an accused in the circumstances mentioned therein and the order
of discharge can be passed at any previous stage of the case. Sub-section
(1), under those circumstances will not operate as a bar to the exercise of
jurisdiction by the magistrate under sub-section (1). But this should not be
understood that the magistrate has arbitrary power to discharge the
accused person. There must be ground or material on record for coming to
the conclusion that no-offence is made out. It has been held by the Bombay
High Court that when a defendant is discharged under see 245(2) the
magistrate has to hear the complainant. Where a prima facie case is made
out against the accused person, discharge of the accused under 245(2) is
not proper.}

Section 246. lnterpretation of 62) Page 519 of Kelkar CrPC (Fourth Edition 2001 reprinted in
the term at any previous stage 2004) {the magistrate cannot decide to frame a charge before any
of the case evidence has been led by the prosecution In other words he cannot jump
over see 245 ahd frame charge inasmuch as in that case the accused s ngbt
to be discharged under sec 245 in the absent. of pnma facie case may be
infringed The phrase at any previous stage of the case contained in sec
246(1) has to be read in the context of the provisions of sec 244. It only
means that if magistrate in the process of taking evidence feels at any
particular stage that the evidence so far recorded was enough for the
purpose of framing the charge, he can at that stage frame that charge
without further taking remaining evidences)

Issue of commission to record 63) State of Maharashtra Vs Praful B Desai, [2003 Cri LJ 2033
the evidence by way of video (SC)] {held that where the attendance of a witness cannot be protured
conferencing without an amount of delay expense or inconvenience the court could
consider issuing a commission to record the evidence by iijaofvides
conferencing }

Difference between “plea of 64) Manipur Administration v Thokchom Bira Singh (AIR 1965 SC
issue estoppels” and “plea of 87) {held that the rule of issue estoppel in a criminal trial is that where an
autrefois acquit” issue of fact has been tried by a competent court on a former occasion and
a finding has been reached in favour of an I accused such a finding would
constitute an estoppel or res judicata against the prosecution not as a bar
to the trial and conviction of the accused for a different and distinct offence,
but as precluding the of evidence to disturb that finding of fact when I the
accused is trial subsequently even for a different offence I which might be
permitted by the terms of section 300. The rule is not the same as double
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 58

jeopardy or autrefois acquit. The rule dos not introduce any variation Code
of Criminal Procedure either in investigation, inquiry or trial. It also does not
prevent the trial of any offence as does autrefois acquit but only precludes
evidence being led to prove a fact in issue as regards which evidence has
already been led and a specific finding recorded at an earlier criminal trial
before a competent jurisdiction.}

Section 165, lEA 65) Nepal Chandra Roy Vs. Netai Chandra Das (1971 SC) {the court
held as follows:

* The purpose of Sec. 165 is to examine the truthfulness of the witness and
also the relevant fact and it is to make the evidence more clear and
intelligible.

* Though the court is free to ask questions as per sec. 165 at any time, it
shall normally wait for the pleaders tocomplete their examination.

66) State of Rajasthan Vs. Annie (1997 SC) {the court observed as
follows

* The sec 165 uses the word ‘any question’ and thus gives a very wide
discretion to the court.
* There is nothing wrong in the judge becoming active and asking question
on his own.
* The judge can interfere even at the stage of cross examination.

67) Ram Chander Vs. State of Hatyana (1981 SC) {the court held as
follows:

* The Court, the prosecution and the defence must work together as a
team and the purpose shall be to amve at 5tlie torrect decision

* The court cannot try to intimidate the witness by threatening him of dire
consequence if he does not give the cdnect reply.

Section 311 Cr.P.C 68) Sethuraman Vs. Raja Manikam (2009 SC decided on 18 March,
(R/W Sec. 165 IEA) 2009) {lt was held that an application or order u/s 311 CrPC are
inttrlocutory orders and hence a revision is not possible Appeal can be
made.

69) Captain Amrendra Singh Vs. Prakash Singh Badal (2009 SC,
decided on 14th May, 2009) {the power of sec. 311 can he used even
after the evidences are over. In this case the question was, can the court
call witnesses on its own from the list of prosecution witnesses which was
furnished by the prosecution initially, after the prosecution evidence is over.

Section 311 provides for the power of the court to summon, recall, re-
examine any witness or to examine any person in attendance. Such power
can be exercised either suo moto or upon an application by a party. If the
court summons a witness suo mob, it will be called a court witness and if he
is summoned upon an application, the witness will be called witness of the
party concerned.

In the case of a court witness, it is only the court which will examine the
witness and with permission the opposite party can cross examine u/s 165
lEA. Whereas if it is a witness of a party, then party shall examine the
witness and the opposite party will get a right to cross examine. Though the
court is free in such a case also to examine the witness.)

70) Union Territory of Dadra & Nagar Haveli & Anr. Vs. Fateh Singh
Mohan Singh Chauhan (2006 SC) {the court held that the main test
under sec. 31! is not whether the party is rectifying its mistake, rather the
test is whether it is essential to take that evidence or not. If it is found to be
essential then even if it amounts to rectification of mistake, the court will
allow the application of sec. 311.)

71) Iddar & others Vs. Aabida & Anr. (2007 SC) {the second part of
sec. 311 cast a duty upon the court to arrive at the truth by all lawfiul
means and one of such means is the examination of witnesses of its own
accord if it is essential to the just decision of the case.}

The Presiding judge of a 72) Ram Chander Vs. State of Haryana (AIR 1981 SC 1036) {the
criminal trial should not be a court observed that a judge must become a participant in the trial by
spectator and a mere recording evincing intelligent active interest, by putting questions to witness in order
machine to ascertain the truth.

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73) Zahira Habibullah Sheikh Vs State of Gujarat (AIR 2004 SC

3114) {The Hon’ble Apex Court observed:

In a criminal case the fate of the proceedings cannot always be left entirely
in the hands of the parties. The concept of fair trial entails familiar
triangulation of the interest of the accused, the victim and the society and it
is the community that acts through the State and prosecuting agencies.

* Due administration of justice has always been viewed as a continuous

process not confined to determination of the particular case protecting its
ability to function as a court of law in the Mitre as In the case before it

* Section 311 of the CrPC and 165 of lEA confer vast and wide powers on
Presiding officers of court to elicit all necessary materials bpjaying an active
role in the evidence collecting process.
Read in detail at pg no 504 of shailendra Malik Guide.}

74) Lalu Mahto & Anr Vs. State of Bihar (2008 SC) {the court held as
Section 313 r.P.C. (Power ol follows:
the court to examine the
accused) * The purpose of sec. 313 is only personal examination of the accused to
enable him to explain the circumstances.

* It is essential that u/s 313 that the Court shall ask such questions as
serve the purpose of the provision, i.e. the question shall be effective and
shall afford a proper opportunity to the accused to explain the
circumstances.

* Under 313(l) (b) it is mandatory and u/s 313 (I) (a) it is discretionary.
However if the exam of 313 was not done or not done properly, it is a
curable irregularity u/s 465 Cr.P.C. i.e. the regularity per e will not defeat
the trial as such, rather, the court will examine whether there has been a
failure ofjustice due to the irregularity or not.

75) Inspector of Customs, Akhnoor, J&K Vs. Yashpal & Anr. (2009
SC, decided on 6th March, 2009) two more cases cited in this case
(1) Vibhuti Bhusan Das Gupta Vs. State of West Bengal (1969 SC)
&
(2) Keya Mukherjee Vs. Magma Leasing Ltd. (2008 SC)
The court held as follows:

* The duty of the Court u/s 313 is to conduct the examination of the
accused effectively. Effectively here means, the accused should have been
given a proper explanation of charge against him and also he should have
been informed specifically about the specific evidences against him and
then specific questions related to such evidences should have been asked,
The accused may be illiterate also and therefore, it becomes the duty of the
court u/s 313 to explain the questions properly to him.

* It is only in one case that the court can dispensed with such examination
i.e. if the court has in a summon case dispensed with the personal
appearance of the accused then the court has the discretion to dispense
with the examination of 313 (1) (b) as well.}

76) Sheikh Maqsood Vs. State of Maharashtra (2009 SC decided on

4th May 2009)

77) Ranbir Yadav Vs. State of Bihar (2009 SC, decided on 5th May
2009)

(In both the cases the court held that sec 313 is not just emptied formlity
rather the court has to conduct the examination effectively to afford earlier
opportunity to the ccused)

Evidentiary value of the statement

78) Trimukh Maroti Kirkar v State of Maharashtra (2006 SC)

79) Gulabchand Vs. State of M.P. (1995 SC)
80) State of Tamil Nadu Vs. Rajendran (1999 SC) (Held in these
cases that evidentiary value of a statement made by the accused u/s 313 is
only to the extent of providing an additional link to the existing evidences.
It is not taken on oath and also the accused does not appear as a witness,
therefore, it can’t be a substantive piece of evidence. Clause 4 of the
section declares itto be only something to be taken into consideration and
accordingly the court cannot base the conviction on statement of sec. 313.
The role of sec. 313 is only to the extent that when the evidences of the
prosecution are proved that the evidences are in themselves sufficient or
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 60

almost sufficient for conviction, then the court examines whether the
accused has any explanation to it or not, and if the accused is not able to
give any explanation to it, then the court gets the extra assurance that the
evidences are correct and sufficient to convict the accused.}

Section 319 81) Brindaban Das and others Vs. State of West Bengal [(2009)3
i.e. additional prosecution SCC 329] (Speaking through Altamas Kabir, 3., the Court held that for
invoking sectiod 319, evidence that appear during the trial must be
substantive evidence in order to summon any person for trial. The evidence
must be of such a nature that it inspires good chances of conviction. The
power under section 319 is to be invoked, not as a matter of course, but in
circumstances where the invocation of such power is imperative to meet the
ends of justice. The fulcrum on which the invocation of section 319 CrPC
rests is whether the summoning of persons other than the named accused
would make such a difference to the prosecutiofl as would enable it not only
to prove its case but to also secure the conviction of the person
summoned.)

82) Lal Suraj Vs. State of Jharkhand [(2009) 2 SCC 696] (Speaking
through S.B. Sinha, J., the Court held that section 319 CrPC is a special
provision. It seeks to meet an extraordinary situation. It although confers
power of wide amplitude but is required to be exercised very sparingly.
Before an order summoning an accused is passed, the trial court must form
an opinion on the basis of the evidence brought before it that a case has
been made out that such person could be tried with other accused. There is
no dispute with the legal proposition that even if a person had not been
charge sheeted, he may come within the purview of the description of such
a person as contained in section 319.)

83) Sohan Lal Vs. State of Rajasthan (AIR 1990 SC 2158) {it was
held that an accused who was discharged cannot be brought back u/s 319.

84) Bholu Ram Vs. State of Delhi (2008 SC) {the court concurred with
the above mentioned ruling that an accused who was discharged cannot be
brought back u/s 319. The Court also held that there is no fixed time limit
provided for puffing an application for additional prosecution.

85) SWIL Ltd. Vs. State of Delhi (2001 SC) {held that at the stage of
sec. 204, the Magistrate issuing process is free to issue process against the
person who is not charge sheeted. This is not an order u/s 319 rather an
order u/s 204 itself. It is not on the basis of evidence appearing with
respect to him/them at the trial stage rather on the basis of the material
available at the stage of issue of process.

86) Rajendra Singh Vs. State of Bihar (2007 SC) {held that the word
‘appears’ in sec. 319 means a satisfaction of the court regarding the fact
that the evidence that have appeared against the additional accused shall
be such as if proved it will result into a conviction of the accused. The court
shall not issue additional prosqcution only on the basis of some
untrustworthy statement of witnesses or .pikci of bearsa evidences.

Compounding of offence 87) Hari Mohan Burman Vs. State of Assam and another (2007 SC)
{held that there can not be compounding of any offence outside section
320. The court held that the legislative mandate prohibiting compounding of
offence beyond sec. 320 as provided in clause (9) can not be sidelined.}

Quashing of FIR in the case 80) BS Joshi Vs. State of Haryana [(2004) 4 SCC 675] {the accused
where offence is non- were charged with offences under sections 498A and 406 IPC. An affidavit
compoundable was filed by the complainant wife that the disputes were finally settled and
the accused and the victim prayed for quashing of the FIR. The Hon’ble
High Court decline to exercise its inherent powers under section 482 CrPC
on the ground that the power under said section cannot be exercised to
quash the prosecution for non-compoundable offences even if the parties
have settled the disputes. In appeal the Hon’ble Supreme Court reversed
the order of the Hon’ble High Court and held that the Hon’ble High Court in
such cases can quash criminal proceedings/FlR/Complaint in exercise of its
inherent powers under section 482 CrPC. The Hon’ble Supreme Court laid
down the law after discussing the case law on the subject ‘We are therefore
of the view that if for the purpose of securing the ends of justice, quashing
of FIR becomes necessary. Section 320 CrPC would not be a bar to the
exercise of power of quashing. The Court, however, guardedly said “It is
however a different matter depending upon the facts and circumstances of
the each case whether to exercise or not such power.”

89) Nikhil Merchant Vs. CB1 [(2008) 9 SCC 677] {The Court followed
the judgmept of the B.L. Joshi case. It was a case in which charge sheet
was filed against the accused under section 120B read with sections 420,
467, 468 and 471 IPC. Whereas the offence under section 420 is
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 61

compoundable the offence of forgery was not compoundable. The filing of

charge sheet by the CBI was preceded by a suit between the delinquent
company and the Bank in which a compromise was arrived at. Pursuant to
that compromise, the appellant accused who was one of the Directors of
the company filed an application for discharge from the case. That
application was rejected by the Hon’ble High Court The Hon’ble Supreme
Court held On an overall view of the facts as indicated hereinabove and
keeping In mind the decision of this case in B S Josh’s case and the
compromise arrived at between the company and the Bank as also clause ii
of the co’isent terms filed in the suit filed by the Bank we are satisfied that
this is afit case where techntcality should not be allowed to stand in the
way in (he quashing of the criminal proceedings since in our view the
continuance of the same after compromise arrived at between - the parties
would be afutile exercise The Hon’ble Supreme Court thus quashed the
proceedings by relying on the mtio of the decision in B S Joshi’s case. The
following pertinent observations were made at Pam 29 Despite the
ingredients and the factual content of an offence of cheating punishable
under secticn 420 IPC, the same has been made compoundable under sub-
section (2) of section 320 CrPC with the leave of the court. Of course
forgery has not been included In one of the compoundable offences, built is
in such cases that the principle enunciated in B.S. Joshi’s case becomes
relevant”

90) The same course of action was adopted in Manoj Sharma Vs.
State [(2008) 14 SCALE 44]. Very recently Supreme Court in Shiji @
Pappu Vs. Radhika [(2010) 12 SCALE 588] held that simply because an
offence is not compoundable under section 320 CrPC I is by itself no reason
for the Hon’ble High Court to refuse exercise of its power under section 482
CrPC to quash prosecution.

91) However, In Gian Singh Vs. State of Punjab [(2010) 12 SCALE

461] the Court doubted the correctness of above mentioned decisions and
referred the matter for consideration by a larger Bench. According to the
referring Bench, the Court cannot indirectly permit compounding of non
compounding offences.

Section 321 i.e. withdrawal 92) Balkar Singh Vs. Jagdish Kumar and others (2005 SC) (the court
from prosecution held as follows:

* The decision to withdraw from prosecution is taken by public prosecutor

independently and he is not bound to the directives of the government,
though disobeying government may result into some evil consequences.

* The PP cannot delegate his power to withdraw from prosecution to any

other person.

* The PP can withdraw only on ground of public order, public interest and
public peace

* The court is not bound by the application of the PP rather it may

independently examine the ground to see whether withdrawal shall be
allowed or not.

* The court can examine whether the grounds for withdrawal as mentioned
by the PP in the applications are reasonable enough to withdraw the case or
not. The court has to do the balancing of the social interest. It is in the
interest of the society that an accused should be convicted and thus in
every case of withdrawal the court will examine whether the public interest
in the withdrawal of the case is greater than public interest as above stated.
The court will also look at the graveness of the offence committed by the
accused and also the chances of conviction of the accused on the basis of
material against him.

Sections 354 (3) and 435 (2) 93) State of Punjab Vs. Dalbir Singh, (2012) 3 SCC 346 (1-2-12) -
i.e. special reason for awarding Held that S. 27 (3) Arms Act unconstitutional and void - S. 27(3). Arms Act,
death sentence 1959 is ultra vires the Constitution and void as it has to obey injunction of
Art. 13 nw Arts. H and 21. Guarantee under Arts. 14 and 21 nw Art. 13
incorporates the doctrines of due process of law and just, fair and
reasonable law. Legislation not providing for judicial review of death
sentence and imposing mandatory death sentence, Like S. 27(3), Arms Act
is neither just, reasonable nor fair and falls afoul of due process test S.
27(3) deprives the judiciary power of discharging its constitutional duties of
judicial review (a basic feature of the Constitution) whereby it has power of
exercising discretion in sentencing. This sentencing power is acknowledged
in S. 302 IPC and has to be exercised as per Ss. 235(2) and 354(3) CrPC.
Any law depriving the judiciary power of exercising its discretion of not
awarding death sentence and shutting its eyes to mitigating circumstances,
is unconstitutional.
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Section 389 i.e. suspension of Power u/s 389(1) includes power to suspend the order of conviction
sentence pending the appeal;
release on appellant on bail 94) Ravikant S. Patil Vs. Sarvabhouma S. Bagali [(2001)6 SCC 584]
{held that an order granting stay of conviction or suspension of conviction is
not a rule of law rather is an exception to be resorted to in rare cases
depending upon the facts of a case. In the case of suspension of sentence
only execution of the sentence is stayed, the conviction continues to
operate But where conviction itself is stayed the effect is that the conviction
will not be opcâttve from the date of stay An order of suspenciop of
convictIcn of course, does not render the conviction n4%stent but only non
operative }

95) Navjot Singh Sidhu v State of Punjab [(2007) 2 SCC 574]

Facts of the case Appellant was charged of causing death of a person by
inflicting fist blgws on head. Trial court acquitted the appellant. He then
contested elections and was elected as MP. But in State’s appeal against
conviction, the Hon’ble High Court convicted him under S 304 Part II IPC
and sentence him to three years RI and fine of Rs I lakh. In view of the
order of the conviction and sentence passed by the Hon’ble High Court,
appellant incurred a disqualificiation under section 8(3) of the
Representation of the People Act 1951. Though he could have availed the
protection under section 8(4) of the Act of continuing to remain MP despite
the disaualificatioa by filing an appeal within three months, but he instead
resigned from membership of Lok Sabha on moral ground and then choose
to contest election again. Appellant filed appeal against High Court’s order
before SC which by an interim order suspends execution of the sentence.
Appellant then moved an application before the SC seeking suspension or
stay of High Court’s order of conviction so as to enable him to contest the
election. The SC granted the suspension/stay of conviction.
Held:

Section 389(i) CrPC confers power not only to suspend the execution of
sentence and to grant bail but also to_suspend the operation of the order
appealed against which means the order of conviction. Thus an appellate c2
zanucnd. or grant stay of order of conviction. But the person seeking tpyof
conviction should specifically draw the attention of the appellate court to
the consequence that may arise if the conviction is not stayed.

Sec. 406 i.e. Power of SC 96) Nahar Singh Yadav Vs. Union of India [(2011) 1 SCC 307,
transfer cases and appeals Decided on Nov 19 2010, 3 Judge Bench, D.K. Jain, V.S. Sirpurkar and (IS.
Singhvi, JJ.] {held that section 406 is to be used sparingly and with great
circumspection. Prayer for transfer should be allowed only when there is
well substantiated apprehension that justice will _o be dispensed
impartially, objectively and without anj bias or where it is necessary to
provide credibility to trial.}

97) Zahira Habibullah Sheikh Vs. State of Gujarat [(2004)4 SCC

158] {Speaking through Arijit Pasayat, J., the court transferred the case
from Gujarat to Maharashtra on ground that trial may be ham p!rc4
inGujarat due to various resons

Discretion to grant bail in non- 98) Sanjay Chandra Vs. Central Bureau of Investigation [(2012) 1
bailable cases SCC 40, Judgment by H.L. Dattu, J.] {ln the present case, the pointing
finger of accusation against the appellant is the seridüsness of the charge
The offences alleged are economic offences which have resulted in loss to
the State Exchequer Though, it has been contended by the prosecution that
there is possibility of the appellants tempenng with the witness Jh€ive pot
placed any material in support of the allerton Stqouinessolthe charge is no
doubt one of the relevantçonsideratons while considering bail applications
but thahis notthe onIy’teEt or the factor, the other factor that also 4ØiEj to
be taken note of is the punishment that coukibe ii?ipot&t after trial and
conviction both under the Pena4 Code, and Prevention of Corruption Act
Otherwise if th fwiner is the only test the court would not be balancing he
cons1flptionak rights but rather recalibrating the scales of justice
The”psnrshment of the offence in the present case is unisbrne for a term
which may extend to seven years Nature 6?tltechãiji’may be relevant but at
the same time, the punichment te which the party may be liable if convicted
also bears upon the issue In determining whether to grant bail both the
seriousness of the charge and the severity of the punishment shoul4 be
taken into consideration Thus court granted bail to appellants subject to
certain conditions

99) Gurucharan Singh Vs. State (Delhi Administration) [1978) 1

SCC 118, AIR 1978 SC 179] {The Court observed as follows: “Para 22:
In other non-bailable cases the court will exercise its judicial discretion in
favour of granting bail subject to sub-section (3) of section 437 CrPC if it
deems necessary to act under it. Unless exceptional circumstances are
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 63

brought to the notice of the court which may defeat proper investigation
and a fair trial, the court will not decline to grant bail to a person who is not
accused of of an offence punishable with death or ithprisonment for life. It
is also clear that when an accused is brought before the court of a
Magistrate with the allegation against him of an offence punishable with
death or imprisonment for life, he has ordinarily no option in the mailer but
to refuse bail subject, however, to the first proviso to section 437 (1) CrPC
and in a case where the Magistrate entertains a reasonable belief on the
materials that the accused has not been guilty of such an offence. This will,
however, be an extraordinary occasion since there will be some matprials at
the stage of initial arrest, for the accusation or for strong suspicion of
commission by the person of such an offence.

Para 24: Section 439 (I) CrPC, on the other hand, confers special powers on
the Hon’ble High Court the Court of Sessions in respect of Bail. Unlike under
section 437 (I) there is no ban imposed under section 439 (1) against
granting of bail by the Hon’ble High Court w Court of Sessions to person
accused of an offence punishable with death or imprisonment for life. It is
however, legitimate to suppose that the Hon’ble High Court or the Court of
Session will be approached by an accused only after he has failed before
the j Magistrate and after the investigation has progressed throwing light on
the evidence and circumstances implicating the accused. Even so the
Hon’ble High Court or Court of Session will have to exercise its judicial
discretion in considering the questi$t of gptin bail under section 439 (I)
CrPC The ovemding cpstdiiftás m granting bail to which we adverted earlier
and whicfrare common both in the case of section 437(l) and 439{)CrPC are
the nature and gravity of the offence the positioiajgati)s of the accused with
reference to victim and4Ijwitnessq the likelihood of the accused fleeing
from Justice\ qf repe*Ojig the offence of jeopardizing his own lifi
being’frced with a grim prospect of possible conviction n the ease;
otenipenng with witnesses the history of the case as well its mvestigation
and other relevant grounds which ip view of so u*ny valuable factors
cannot be exhaustivelyset oiit’.

100) State of UP v Amarmani Tripathy [(2005) 8 SCC 21, and 2005

SCCJ(Cri) 1960 (2)] The Court observed as follows It is well settled Ihat
the matters to be considered in an application for bail are

a) Where there is any prima facie or reasonable ground to

believe that the accused has committed the offence

b) Nature and gravity of the charge

c) Severity of punishment in the event of conviction

d) Danger of the accused absconding or fleeing if released on bail;

e) Character, behavior, means, position and standing of the accused;

f) Likelihood of offence being repeated;

g) Reasonable apprehension of witnesses being tempered with;

h) Danger of justice being thwarted by grant of bail.

The Court observed that while a vague allegation that the accused may
temper with the evidence or witnesses may not be a ground to refuse bail,
if the accused is of such character that his mere presence at large would
intimidate the witnesses or if there is material to show that he will use his
liberty to subvert justice or temper with the evidence, then the bail will not
be granted.

Section 438 i.e. anticipatory 101) Sidharam Satlingappa Mhetre Vs. State of Maharashtra,
bail. [(2011) I SCC 694, Before Dalveer Radhakrishnan, JJ. Judgment by
Dalveer Bhandari and K.S.P. Bhandari, J.J {ln this landmark judgment the
Hon’ble Supreme Court while following the PLc tin Bench in Guru baksh
Sin8h Sthbia Vs. State of Punjab has held that the order of anticipatory bail
under section 438 CRPC should not be -of limited duration or till the filing of
charge sheet, it should prevail till the trial of the case. However, the court in
the mean time can cancelled the anticipatory bail upon finding of new facts.
The Court has declared certain judgments of two or three judge Bench of
Supreme Court as per incuriam. Following paragraphs are important to
easily comprehend the ratio of the judgment in this landmark case: - -

Pare 122: In our considered view the Constitution Bench in Sibbia case has
comprehensively dealt with almost all the aspects of the concept of
anticipatory bail under 438 CRPC. A number of judgments have been

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 64

referred to by the learned counsel for the parties consisting of Benches of

similar strength where the courts have observed that the anticipatory bail
should be of limited duration only and ordinarily on the expiry of that
duration or standard duration, the Court granting the anticipatory bail
should leave it to the regular court to deal with the matter. This view is
clearly contrary to the view taken by the Constitution Bench in Sibbia case
In the preceeding para it is clearly spelt out that no limitation has been
envisaged by the legislature under section 438 CR.PC. The Constitution
Bench has aptly observed that:” we see no vah&esci- rmvriting section 438
with a view not to expanding Ihø scope and ambit of the discretion
conferred on the Hon’ble High Court and the Session Court but, for the
purpose of limiting it.”

Para 123: “In view of the clear declaration of the law laid down by the
Constitution Bench in Sibbia case it would not be proper ! limit the life of
anticipatory bail. When the court observed that the anticipatory bail is for
limited duration and thereafter the accused should apply regular court for
bail that means the life of stetion 438 CRPC would come to an end after
that limited Øuration. This limitation has not been envisaged by the
legislature. Therefore, in view of the clear declaration of the law by the
Constitution Bench in Sibbia case, the life of the order under section 438
granting bail cannot he curtailed.”

Para 124: “The ratio of the judgment of the Constitution Bench in Sibbia
case, perhaps was not brought to the notice of their lordships who decided
the cases of Salauddin Abdulsamad Shaikh Vs. State of Maharashtra (1996)
1 SCC 667, K.L.. Vernia Vs. State (1998) 9 SCC 348, Adri Dharan Des Vs.
State of West Bengal (2005) 4 SCC 303 and Sunita Devi Vs. State of Bihar
(2005) 1 SCC 608.”

Pan 125: “In Naresh Kumar Yadav Vs. Ravindra Kumar (2008) I SCC 632, a
two judge Bench of this Court observed: “the power exercisable under
section 438 is somewhat extraordinary in character and it should be
exercised only in exceptional cases.” This approach is contraryjo the
legislative intention and the “Constitution Bench decision in Sibbia case.”

Para 138: “ the judgments mentioned in Paras 124 and 125 of this
judgment are per incuriam.”)

102) Nirmaljeet Kaur Vs. State of M.P. (2004 SC) (the courtheld as
follows:

* The power to grant an anticipatory hail is not an unguided power.

* It is necessary that the accused shall not bern custody at the time of
applying as well as at the tune whtn the anticipatory bail was granted

* Successive anticipatory bail application shall not be allowed

* It is necessary for the accused in the case of anticipatory bail that he

shalt get into custody later and obtained aregular bail.

103) Adndharan Das v State of West Bengal (2005 SC) (the court
held as follows

* Anticipatory bail does not grant a complete immunity from arrest rather
the accused shall be released on bail only upon furnishing the bail.

• An order gnnflng anticipatory bail shall not be issued for an 9nlimite time
or until a regular bail has been obtained as the purpose of anticipatory bail
is to grant only a tenipomiy relief to the accused from custody.

Note: This decision is held as per incuriam recently in Sidharam Satlingappa

Mhetre Vs. State of Maharashtra [(2011)1 SCC 6941.

l04) Gurbaksh Singh Sibbia Vs. State of Punjab [(1980)2SCC . 5651 (the
court held as follows:

* The filing of FIR is not a condition precedent to the exercise of the power
under sec. 438. The imminence of a likely arrest founded on a reasonable
belief can le shown to exist even if an FIR is not yet filed.

* The use of the expression “reason to believe” shows that the belief that
the applicant may be so arrested must be founded on reasonable grounds.
Mere ‘fear’ is not ‘belief for which reason it is enough for the applicant to
show that he has some sort of vague apprehension that someone is going

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 65

to make an arrest against him, in pursuance of which he may be arrested.

The grounds on which the belief of the applicant is based that he may be
arrested for a non.bailable offence, must be capable of being examined by
the court objectively, because it is then alone that the court can determine
whether the applicant has reason to believe that he may be arrested.

* A ‘blanket order’ of anticipatory bail should not-genaally be pass ed and

that the court which grants anticipatory bail must take care to specify the
offence or offences in respect of which alone the order will be effective

Successive bail application 105) Rajesh Ranjan @ Pappu Yadav Vs. State of Bihar (2005 SC) {the court
held that there is no limitation upon the number of bail applications that can
be filed in a case. However, filing bail applications in a succession without
any change in material particulars shall not be allowed. Thus, once the
investigation is over and charge sheet has been filed and no supplementary
invesfigation is going on, the material paniculs of the case would not
change and therefore, without any change of such particulars if repeated
applications are tiled that will result into wastage of court’s time and also it
will be a comment upon the merits of the earlier determinatit on the same
facts.

Few More Cases

Latest Supreme Court Judgments on Criminal law in January 2015 .

The judgments given below are or CrPc, Indian Penal Code, Dowry
Prohibition Act 1961, Immoral Traffic Offenders, Sand Offenders, Slum
Grabbers and Video Pirates Act, Drug Offenders, Forest Offenders, Criminal
Law- Rehabilitation of victim

Sandeep Kumar Vs. Pooja [2015 STPL (Web) 1568 Del]

Criminal Law – Quashing of FIR- Criminal Procedure Code, 1973-
Section 482, Indian Penal Code, 1860, Section 498A, 406, 34- Dowry
Prohibition Act, 1961, Section 3 and 4- Matter arose out of matrimonial
dispute and has been settled between the two parties- Less likelihood is
there of prosecution succeeding in this matter- Held therefore, FIR quashed
and proceedings emanating there from also quashed.

Avinash Vs. State [2015 STPL (Web) 1566 DELHI (Del)]

Criminal Law- Anticipatory Bail- Cruelty- Indian Penal Code- Sections
498-A, 406, 34, Criminal Procedure Code, 1973- Section 438- In this
present case bail was granted to husband along with condition to pay Rs.
50,000 to wife for meeting day to day expenses of the child- Question that
arose was whether that this compensation to be paid as a condition to the
bail can be termed as unreasonable which can have the effect of buying the
bail- Held, that the complainant being lady, dependent on her parents-
suggestion by court for making provisions for the immediate need of the
child can not be described as buying the bail- Condition imposed.

Ramki Vs. State of Tamil Nadu [2015 STPL (Web) 1565 MADRAS
(MAD) ( DB)
Criminal Law- Preventive detention- non supply of copy order in
translated language- T.N Prevention of Dangerous Activities of
Bootleggers, Drug Offenders, Forest Offenders, Goondas, Immoral Traffic
Offenders, Sand Offenders, Slum Grabbers and Video Pirates Act (14 of
1982), Section 3- The Detenu provided with illegible copy of document due
to which he failed to comprehend terms of detention order and could not
comply with order of court – Court failed to provide translated copy of
document – Held that preventive detention order quashed due to non
supply of report in vernacular language ..

Richpal Kharra Vs. State [2015 STPL (Web) 1578 Rajasthan (RAJ)
Criminal Law- Rape- DNA Test of accused mandatory in
nature- Criminal procedure code, 1973, Section 53 A- DNA Test of
accused- in this present case the complainant who alleged rape on her self
told the police that she was not interested in pursuing the matter and that
no offence of rape had taken place with her- Police filed negative report-
Held that Section 53-A of CrPC is mandatory in nature. Accused was
directed to provide sample for DNA testing to be sent by investigating
officer to the FSL and then FSL to bring the report to the court and court
may pursue the matter further , if necessary.

Manohar Singh vs. State of Rajhasthan and Ors. [ Criminal Appeal

no. 99 of 2015 arising out of SLP (CRL) No. 1491 or 2012]
Criminal Law- Rehabilitation of victim- Indian Penal Code, Section 323- In
the present case the appeal was preferred against the order of the Hon’ble
High Court for setting aside the sentence of imprisonment of the accused-
the honorable Court has held that the accused has to pay compensation to
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 66

the accused in addition to the imprisonment and it can be said to

rehabilitate the victim- Stress was laid on the reparation of Human Rights of
the victim- Held the accused to pay a compensation of Rs. 50,000 and in
case of failure to pay he has to undergo rigorous imprisonment for three
months.

Mansoor Alam Vs. State of Utar Pradesh & ANR [ Criminal Appeal
No. 91 of 2015 arising out of SLP (CRL) no. 9247 or 2013] Criminal
Law- Grant of Bail– Indian Penal Code Section 302, 34 and 120 B- In
instant case accused shot a bullet and killed another, the Hon’ble High
Court granted bail to accused on the ground that there were only two fatal
injuries and the rest were injuries on non-vital parts of the body- Held, that
order of high curt is set aside and accused to remain in prison.- Bail
refused.

Ahmed Shah & ANR. Vs. State of Rajhasthan [ Criminal Appeal no.
17/2009]
Criminal Case- Conviction under Section 302/ 34 of IPC or Section
304– In the present case the accused being 7 in number formed an
unlawful assembly armed with weapons to take possession of the fields of
the claimant- on spot due to a scuffle they caused injuries on complainant
and his partners- 2 died as a result of those injuries- Court held that the
conviction would be under Section 304 instead of Section 302 because this
case fell within the fourth exception of Section 300 of murder, which states
murder in case of sudden fight, which is to be without premeditation,
sudden in nature, without the offender having taken undue advantage or
acted in a cruel manner, the fight must have been with the persons killed-
The accused inflicted injuries on the neck etc, knowing it would cause death
rest they fell within the fourth exception of Section 300- Held – no reason
to interfere with the order of the High of conviction only the sections were
changed.

Vinod Kumar vs. State of Haryana [ Criminal appeal no. 1401 of

2008]
Criminal Law- Kidnapping of a 3 year old– Indian Penal Code ,
sections 363, 109, 364-A- The present case is that Vinod Kumar (the
accused) worked as a domestic help in the house of Jagbir Singh, and
kidnapped their 3 years old son, left a letter addressed to the father of
Jagbir Singh for a ransom of Rs. 1 Lakh- Trial court acquitted the accused
and said the witness were not independent and were interested witnesses-
High court reversed the ruling of the trial court and said that the evidence
on record and the statement of the witnesses corroborated and hence
accused was guilty- Accused also admitted face of writing the letter for
ransom – Accused could not explain how the boy reached Delhi railway
station from where he was recovered – Held, no reason to interfere with the
decision of the Hon’ble High Court and appeal dismissed.

Darga Ram Vs. State of Rajhasthan [ Criminal Appeal no. 513 of

2008]
Criminal Law- Rape and murder of 7 year old child by a juvenile– In
the instant case the accused who was deaf and dumb and a juvenile at the
time of the occurrence of the incident, raped one child who was attending a
jagran and killed her brutally by crushing her head with a stone- the
heinous crime attracted conviction by the trial and High Court alike- After
considering the evidence, age of the accused the accused was decided to
be a juvenile at the time of commission of offence and had been in jail for
the last 14 years- the appeal succeeded in part and the conviction under
Section 302 and 376 of the Indian Penal Code and the sentence awarded to
him is set aside.

Dilip Kumar vs. State of West Bengal [ Criminal Appeal no. 82 of

2015 arising out of SLP (Crl) No. 9447/2012
Criminal Law- Sentence of Life imprisonment is reduced to 10
years rigorous imprisonment– In the instant case the accused attacked
the complainant and others while they were working in the paddy field and
caused the death of one- court held in this case that it would fall under the
fourth exception of Section 300 of sudden fight without any premeditation
and without taking any undue advantage of the situation- held that the
accused’s conviction under 302/34 of IPC is modified to 304 and hence the
sentence reduced to 10 years of rigorous imprisonment

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 67

THE CODE OF CIVIL PROCEDURE, 1908

LIST OF LANDMARK CASES/IMPORTANT NOTES ON IMPORTANT TOPICS

Sr. Sections/Topics Related Cases

No. (Definitions etc.)
Delay in civil litigation 1) Ramrameshwari Devi Vs. Nirmala Devi [(2011) 8 SCC 249, Dr.
Dalveer Bhandari and Deepak Verma, JJ.] {Speaking through Dr. Dalveer
Bhandari the Court has laid down following guidelines to curb the menace
of delay in civil litigation:

a) Pleadings are the foundation of the claims of parties Civil litigation is

largely based on do tts It is the bounden duty and obligation of the ju4v1.
to carefully scrutimse check and iffy tile jtéadthgs filed by the parties This
must be done immediately after civil suits are filed.

b) The court should resort to discovery and production of documents

aildinterroggknes at the earliest according to the objeqaf the 4t l1ttis
exercise is carefully caned out, it wot[4thcus the controversies involved in
the case and4lp thelhftt i striving at the truth of the matter and doing
ubstantiáfistice

c) TnpoltioJpf actual realistic and proper costs and/or ordcUhg prdecution

would go a long way in controlling the tWdacy of introducing false pleadings
and forged and fabricated documents by litigants Imposition of heavy costs
would also curtail unnecessary adjournments hy parties In appropnate
cases the courts may consider àrdering prosecution; otherwise it may not
be possible to maintain purity and sanctity ofjudicial proceedings

d) While imposing costs the court must take into consideration pragmatic
realities and be realistic as to what the defendants or the respondents had
to actually incur in contesting the litigation before different courts. The
court must broadly take into consideration the prevalent fee structure of
lawyers and other miscellaneous expenses which have to be incurred
towards drafting and filing of counter affidavit, miscellaneous charges
towards typing, photocopying, court fee etc.

e) The court must adopt realistic and pragmatic approach in granting mesne
profits. The court must carefully keep in view the ground realities while
granting mesne profits.

f) The Court should be extremely careful and cautious in granting ex parte

ad interim injunctions or stay orders. Ordinarily short notice should be
issued to the defçndants or respondents and only after hearing the parties
concerned appropriate orders should be passed.

g) If in a given case ex-parte injunction is granted, then the said application

for grant of injunction should be disposed of on merits, after hearing both
sides as expeditiously as may be possible on a priority basis and undue
adjournment should be avoided.

h) While awarding ex-parte injunction, the court can limit the life of ex-
parte injunction or stay order for a week or so because in such cases the
usual tendency of unnecessarily prolonging the matters by the plaintiff or
the petitioners after obtaining ex-parte injunction orders or stay orders may
not find encouragement.

i) Litigants who obtained ex-parte ad interim injunction on the strength of

false pleadings and forged documents should be adequately punished. No
oneshould be allowed to abuse the process of the court.

j) The principal of restitution be fully applied in a pragmatic manner in order

to do real and substantial just jee

k) Every case emanates from a )ttma% or a commercial problem and the

court must make sedans endeavour to resolve the problem witp the
fraiework of law and in accordance with wal secteijprincip1n of law and
justice

L) At the time of filing of the plarnt, the trial court should prepare a
complete schc4ule and fix dates for all the stages of the suit, lint from filing
of the written statement till prónoun&ment of the judgment and the
courtshouIêstrictly adhere to the said dates and the sa,dtimetabttas far as
possible If any interlocutory application is filed then the same be disposed
of in between the said dates of hearing fixed in the said suit itself so that
the date fixed for the main suit may not be disturbed.

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Meaning of “Cause of action” 2) Rajasthan High Court Advocates Association Vs. Union of India
(AIR 2001 SC 416) {while explaining the meaning of cause of it as
obseed by Apex Court that “the expression cause of action’ has acquired a
judicially settled meaning In the restricted iènse cause of action means the
circumstances forming the -infraction of the right or the immediate occasion
for the action. In the wider sense it means the necessary conditions for the
maintenance of the suit, including not only the infraction of the right, but
the infraction coupled with the right itself. Compendiously the expression
means every fact which it would be necessary for the plaintiff to prove, if
traversed, in order to support his right to the judgment of the Court. Every
fact which is necessary to be proved, as distinguished from every piece of
evidence which is necessary to prove each fact, comprises in ‘cause of
action.’ It has to be left to be determined in each individual case as tq
where ihe cause of action arises.”)

Section 2(2) i.e. decree 3) Mangluram Dewangan Vs. Surendra Singh and Ors [(2011) 12
SCC 773, RV. Raveendran and A.K. Patnaik, JJ.] Judgment by RV.
Raveendran, J {A reading of the definition of decree in section 2(2) shows
that following essential requirements should be fulfilled if an order should
be treated as a “decree”:
a) There should be an adjudication in a suit.

b) The adjudication should result in a formal expression which is conclusive

so far as regards the court apressing it.

c) The adjudication should determine the rights of the part jes with regard
to all or any matters in controversy in the suit.

d) The adjudication should be one from which an appeal does not lie as an
appeal from an order (under section 104 and Order XLIII Rule I of the
Code) nor should it be an order dismissing the suit for default.)

Section 9, i.e. Jurisdiction of 4) Abdul Gaffor Vs. State of Uttarakhand & others (2008 SC) {held
civil court that:

* Civil courts have inherent jurisdiction in all case of civil disputes unless it
is barred.

* Every person has an inherent nght to bnng civil suit

5) Gangabai Vs. Vijay Kumar (1974 SC) {“there is an inherent right in

every person to bring a suit of a civil nature and unless the suit is barred by
statute one may at one’s peril, bring a suit of one’s choice.”}

There is presumption of 6) Rajasthan State Road Transport Corporation & Anr Vs. Bal
jurisdiction of civil court Mukund Bairwa [(2009) 4 SCC 299] {held that the inherent powers of
an individual to file a civil suit is due to the maxim “ubi jus ibi remedium”
The jurisdiction of the court is plenary and there is presumptjon of
jurisdiction. It is not a burden for the plaintiff to plead the existence of the
details of the jurisdictional fact. He just needs to plead i.e. make an
averments that the court has jurisdiction. It is for the defendant to plead
lack of jurisdiction and to lead evidencs to prove the absence of the
jurisdictional facts in that particular court.}

Essentially and substantially 7) Most Revered PMA Metropolitan & others Vs. Moran Mar
there must be violation of a Marthoma (AIR 1995 SC 2001 3 Judge Bench Speaking through
civil right Sahai, J.) {held that civil nature means a suit in which essentially and
substantially the right involved is a civil right even if incidentally the suit
involves the determination of some socioreligious or political questions.

In this case the suit is only for expulsion from the caste. The court held that
the right to belong to a caste is not a civil right.)

Read in more detail about this case at page no. 384 of Chawla (HP Judicial
guide).

Implied bar to the jurisdiction 8) An implied bar may be raised when a statute provides for a special
of civil court remedy to an aggrieved party. There are certain statutes which set up or
establish tribunal for redressal of grievances arising under the statutes.
Whether such tribunals take away the jurisdiction of civil courts in absence
of an express bar contained in the statutes is a question which has
repeatedly cropped up and the extent of jurisdiction of such tribunals and
finality attached to their decisions have been subject matter of several
decisions. The leading decision on this point is Dhulabhai Vs. State of
Madhya Pradesh (AIR 1969 SC 78). It has been held that where there
is no express bar, it is necessy to examine the remedies and the scheme of
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 69

the statute as a whole, If a statute creates a new special right or liability

and provides for the determination of the right or liability, it may be held
that the jurisdiction of the civil court is impliedly barred.

The decision of a court lacking 9) Kiran Singh Vs. Chaman Paswan (AIR 1954 SC 340) {“it is
inherent jurisdiction is a nullity. fundamental principle well established that a decree passed by a court
without jurisdiction is a nullity, and that it’s invalidity could be set up
whenever and wherever it is sought to be enforced or relied upon, even at
the stage of the execution and even in collateral proceedings. A defect of
jurisdiction . . . . strikes at the very authority of the court to pass any
decree and such a defect cannot be cured even by consent of parties.”}

“The policy underlying sections 21 and section 99 of the Suits Valuation Act
is the same, namely that when a case had been tried by the court on the
merits and Judgment rendered, it should not liable to be reversed purely on
technical grounds, unless it has resulted in failure of justice. The policy of
the legislature has been to treat objectioin as to jurisdiction both territorial
and pecuniary as technical and not open to consideration by an appellate
court, unless there had been a prejudice on merits.

‘Exclusive jurisdiction clause’ is 10) Hakam Singh Vs. Gammon (India) Ltd. [(1971) 1 SCC 286 AIR
valid 1971 SC 740] {held that, “it is not open to the parties by agreement to
confer by their agreement jurisdiction on a court which it does not possess
under the Code. But where two courts or more have under the Code of Civil
Procedure Jurisdiction to by a suit or proceeding, an agreement between
the parties that the dispute between them shall be tried in one of such
courts is not contrary to pubic policy. Such an agreement does not
contravene section 28 of the Contract Act.”}

Whether jurisdiction of the 11) By the exclusive jurisdiction clause the courts do not lose jurisdiction
court will be completely ousted which they otherwise possess. They retain jurisdiction notwithstanding the
by the exclusive - jurisdiction agreement of the parties. It is always held that excluded courts do not lose
clause? jurisdiction and such freedom cannot be conceded to the parties to take
away, by consent, jurisdiction granted under the law. The courts will lean in
favGur of upholding such agreements, and will insists that the parties
adhere to the chosen forum and will not allow them to ignore the
stipulation, but they ace not bound by it. They can try suits or proceedings
notwithstanding the agreement if they are satisfied that the circumstances
justify departure from agreement or that it would be oppressive or unjust to
insist that that the suit or proceedings should be instituted at the selected
place only. The courts have the discretion and power to relieve the parties
fitm their self imposed restrictions, if rigid insistence on such selection is
likely to lead to injustice or unreasonable harassment or inconvenience in
view of the surrounding circumstances, the balance of convenience, the
nature of the claim and of the defence, the history of the case and the
stakes involved.

The courts have tended to construe such clauses or stipulation rather

strictly. There must be every clear expression of intention to restrict the
parties to a particular forum. Such clauses do not find favour with courts
and they are viewed with suspicion. It is now accepted that the freedom of
contract is quite illusory and in many cases, the parties do not have equal
bargaining strength. In such cases, the stronger party succeeds in inserting
clauses favourable to itself on account of its vastly supenor bargaining
power. In RSD Finance case explained below, such tendency is clearly
evident. [Mulla the key to Indian Practlce-9th Edition 2008, Page no
39]

The exclusion of jurisdiction of 12) RSD Finance Co. Pvt Vs. Shree Vallabh Glass Works Ltd [(1993)
a civil court must be specific 2 SCC 130] {the fixed deposit receipts issued by the defendant contained
the endorsement ‘Subject to Anand jurisdiction’. It was held that such
endorsement was insufficient to amount to ouster clause. It has been
observed as follows:

‘The endorsement subject to Anand junsdiction does not contain the ouster
clause using the words like ‘alone’, ‘only’, ‘exclude’ and the like. Thus the
maxim ‘expressio unius est exclusion altenus’ i.e. express mention of one
thing implies the exclusion of other cannot be applied under the facts and
circumstances of the case and it cannot be held that merely because the
deposit receipt contained the endorsement subject to Anand junsdiction it
excluded the jurisdiction of all other courts who were otherwise competent
to entertain the suit.”

13) New Moga Transport Co Vs. United India Insurance Co. Ltd
(AIR 2004 SC 2154) {held that an agreement confethng an exclusive
jirisdictron on one court to the exclusion of another court should be clear
unambiguous explicit and specific.’}

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 70

A court which has no 14) Harshad Chiman Lal Modi Vs. DLF Universal Ltd. [(2005) 7 SCC
jurisdiction as to the subject 791, AIR 2005 SC 4446] {Facts: A suit for specific performance of a
matter, judgment of the court contract to transfer immovable property situated at Gurgaon (Haryana) was
is nullity filed in Delhi on the ground that cause of action arises in Delhi and also that
parties have agreed to dissolve their dispute at Delhi.

A divisiohbench of SC speaking through C.K. Thaldcar, J., follows the dtiqu

of Hakam Singh case and held that parties qajg,t by their agreement confer
juflkion on a court which does not have jurisdiction to try the case. The
court further held as follows:

* The proviso to section 16 is an exception to the main part of the section

which cannot be interpreted or construed to enlarge the scope of principal
provision. It would apply only if the suits falls within one of the categories
specified in the main part of the section and the relief sought could entirely
be obtained by personal obedience of the defendant.

* Section 20 of the CPC cannot be invoked because it is a residuary clause

and it can only be used when neither of the condition provides in secs. 16-
19 applies.

The jurisdiction of a court may be classified into several categories. The

important categories are (i) territorial or local jurisdiction; (ii) pecuniary
jurisdiction; and (iii) jurisdiction over the subject matter.
So far as territorial and pecuniary jurisdictions are concerned,
objection to such jurisdiction has to be taken at the earliest
possible opportunity and in any case at or before settlement of the
issues. The law is well settled on the point that if such objection is
not at the earliest, it cannot be allowed to be taken at a
subsequent stage. Jurisdiction as to subject matter, however, is
totally distinct and stands on a different footing. Where the court
has no jurisdiction over the subject matter of the suit by reason of
any limitation imposed by statue, charter or commission, it cannot
take up the case or matter. An order passed by a court having no
jurisdiction is a nullity.

Case on explanation to Sec.20 15) Patel Roadways Ltd. Vs. Prasad Trading Co. [(1991) 4 SCC
Sec 21 i.e. objection to 270] {held that the use of the word ‘or’ in the explanation before the
jurisdiction of court words ‘in repect of any cause of action’ plays a disjunctive role and breaks
the explanatin into 2 parts. The word ‘at such place’ goes with the phrase
after the word ‘or’ in the explanation and thus a third situation arises in the
explanation i.e. the case where a company has a branch office also
and cause of action has arisen wholly or partly at one of such
branch office then the place of business will be only such branch
office and not Head office or Principal Office or other branch office.
By implication if a cause of action arises at more than one branch
office then all such branch office where cause of action has arisen
will be the place of business and not the principal office)

Sec 21 i.e. objection to 16) For section 21 to apply, the following conditions must be
jurisdiction of court strictly followed:

* The objection to jurisdiction must be taken in the court of first instance

and at the earliest possible opportunity or before the issues were framed;
and

* There has been a failure of justice consequent upon the suit having been
tried by the court for which the objection has been raised. The result is that
if no objection to jurisdiction was taken at all or if such objection was taken
at a late stage of proceedings before the court, or even if such objection
was taken at the earliest possible opportunity, but there has been no failure
of justice consequent upon the suit having been tried by the court, the
appellate court would not allow the objection, and would not interfere with
the decree passed by the court.

17) Koopilan Uneen Pathumma Vs. Koopilan Uneen Kuntalan Kutty

(AIR 1981 SC 1683) {held that all the three conditions, namely, objection
in the court of first instance; objection at the earliest possible opportunity or
before the settlement of issues; and a consequent failure of justice, must
co-exist.}

Forum convenience 18) Mayar H.K. Ltd. Vs. Owners and Parties. Vessel M.V. Fortune
Express (2006 SC) another case cited in this case i.e. ABC Lominant Pvt
Ltd. Vs. A.P. Agencies (1989 SC) {held that for a transfer of a case on the
ground of forum convenience the defendant has to prove the forum (court)
where he had applied the transfer to be made is the forum convenient to
both the parties. He has to prove the following two elements:
* That if the suit is continued at the present place then it will result into an
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 71

abuse of process against him and aiso an irreversible loss to him

* If the suit is transferred to another court then it will not amount to a

matenal inconvenience tothe plamtitf

Transfer of a civil case 19) Durgesh Sharma Vs. Jaishree (2008 SC) {The SC Struck down
sec 23(3) and held that transfer of a case from a court situated under the
jurisdiction of one High Court to Another court situated under the
jurisdiction of another High Court, can be made only by the Hon’ble
Supreme Court of India. High Courts cannot transfer such cases.)

20) Chitivalasa Jute Mills Vs. Jaypee Rewa Cement (2004 SC) {held
that SC u/s 25 has the power to transfer cases in order to consolidate cases
if several suits between the same parties on the same subject matter are
penling in differetit courts

21) Abdul Gaffor Vs. State of Uttarakhand & others (2008 SC) (the
withdrawal and trail or the transfer or trial can be done u/s 24 even the suit
is pending in the court at preliminary stage and the hearing on some
preliminary objection is pending. For example if in the trial Court defendant
has raised the objection of Res-judicata, the trial Court has framed Issue on
this and conducting the hearing on such preliminary objection. The Hon’ble
High Court or the District Court as the case may be is free to withdraw the
suit at this stage and decide upon the preliminary issue and if needed the
entire suit }

Res judicata i.e. sec. 11 22) The doctrine of res judicata is based on three maxims:

# Neino debet his vexari prauno et eadem causa (no one should be vexed
twice for the same cause)

# Interest republicae ut sit finis litium (it is in the interest of the state that
there should be an end to a litigation)

# Res judicata pro ventate occipitur (judicial decision must be accepted as

correct)

Meaning 23) Satyadhyan Ghosal Vs. Deorajin Debi (AIR 1960 SC 941) {Das
Gupta, J., has explained the meaning of res-judicata as follows:

‘The principle of resjudicata is based on the need of giving finality to judicial

decisions. What it says that once a res is judicata, it shall not be adjudged
again.)

Constructive resjudicata 24) Alka Gupta Vs. Narendra Kumar Gupta [(2010) 10 SCC 141,
R.V. Raveendran and H.L Gokhle, JJ.] {The Hon’ble Apex Court
speaking through R.V. Raveendran, J., explained the concept of
constructive resjudicata as enshrined in explanation IV to section II CPC as
follows: “Explanation III clarifies that a matter is directly and substantially in
issue, when it is alleged by one party and denied or admitted (expressly or
impliedly) by the other. Explanation IV provides that where any matter
which might and ought to have been made a ground of defence or attack in
the former suit, even if it was not actually set up as a ground of defence or
attack, shall be deemed and regarded as having been constructively in issue
directly and substantially in the earlier suit. Therefore, even though a
particular ground of defence or attack was not taken in the earlier suit, if it
was capable of being taken in the earlier suit, it became a bar in regard to
the said issue being taken in the second suit in view of the principle of its
judicata. Constructive resjudicara deals with grounds of defence or attack
which ought to have been raised, but not raised, whereas, Order II Rule 2
of the Code relates to reliefs which ought to have been claimed on the
same cause of action but not claimed.

Difference between 25) State of U.P. Vs. Nawab Hussain (AIR 1977 SC 1681) {a sub-
constructive res judicata and inspector of police was dismissed from service by DIG. He challenged the
Order II Rule 2 order of dismissal by filling writ petition in the Hon’ble High Court on the
ground that he was not afforded reasonable opportunity of being heard
before passing the order. The contention was, however, negatived and
petition was dismissed. He then filed a suit and raised an additional ground
that since he was appointed by IGP, DGP had no power to dismiss him. The
State contended that the suit was barred by constructive res judicata. The
trial court, first appellate court as well as High Court held that the suit was
not barred by res judicata. Allowing the appeal filed by the State, the
Hon’ble Supreme Court held that suit was barred by constructive resjudicata
as the plea was within the knowledge of the plaintiff and could well have
been taken in earlier writ petition. It was observed: “When any matter
which might and ought to have been made a ground of defence or attack in
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 72

a former proceeding but was not so made, then such a matter in the eye of
law, to avoid multiplicity of litigation and to bring about finality in it, is
deemed to have been constructively is issue, therefore, is taken as
decided.”

26) Workmen of Cochin Port Trust Vs. Board of Trustees of the

Cochin Port Trust (AIR 1978 SC 1283, 3 Judge Bench) {The Court
observed “It is well-known that the doctrine of Res judicata is codified in
section 11 of CPC, but it is not exhaustive. Section 11 generally comes into
play in relation to civil suits. But apart from the codified law the doctrine of
res judicata has been applied since long in various other kinds of
proceedings and situations by Courts in England, India and other countries.
The nile of constructive res judicata is engrafted in Explanation IV of section
11 and in many other situations also principles not only of direct res
judicata but of constructive res judicata are also applied.”}

27) Konda Lakshmana Bapuji Vs. Govt of A.P. (AIR 2002 SC 1012)

Few examples of constructive resjudicata:

1. A sues B for possession of property on the basis of ownership. The suit is
dismissed. A cannot thereafter claim possession of property as mortgagee
as that ground out to have been taken in the previous suit as a ground of
attack. (This example has been given in CK Thakur’s book as an example of
constructive res judicata, but here title of the plaintiff in subsequent suit is
different from the previous one, therefore, resjudicata will not be
applicable.)

2. A files a suit against B for declaration that he is entitled to certain lands

as heir of C. The suit is dismissed. The subsequent suit, claiming the same
property on the ground of adverse possession is barred by constructive
resjudicata.

3. A sues B to recover damages for a breach of contract and obtain a

decree in his favour. B cannot afterwards sue A for recession of contract on
the ground that it didn’t fully represent the agreement between the parties,
since that ground ought to have been taken by him in the previous suit as a
ground of defece.

4. A files a suit against B to recover money on a pronote. B contends that

the promissory note was obtained from him by undue influence. The
objection is overruled and suit is decreed. B can not challenge the
promissory note on the ground of coercion or fraud in subsequent suit,
inasmuch as he ought to have taken that defence in the former suit.

Applicability of res judicata on 28) Mathura Prasad Vs. Dossibai (AIR 1971 SC 2355, 3 Judge
issues of law Bench) {held that a decision on an issue of fact, however erroneous it may
be, constitute res judicata between the parties to previous suit and cannot
be reagitated in collateral proceedings. A mixed issue of law and fact also
for the same reasons operate as res judicata. However where the question
is on purely of law and it relates to the jurisdiction of the court or a decision
of the court sanctioning something which is illegal, by resort to the rule of
res judicata a party affected by the decision will not be precluded from
challenging the validity of that order, for a rule of procedure cannot
supersede the law of the land.)

However, in Avtar Singh Vs. Jagjit Singh (AIR 1979 SC 1911), a

Division Bench of Supreme Court has given a decision in contradiction with
Mathura Prasad case. (Read page No 68 of Takwani)

Res-judicata will not apply 29) Shakuntla Devi Vs. Kamla and Others [(2005) 5 SCC 390]
where the court have no {before N. Santosh Hegde, D.M. Dharmadhikari and S. B. Sinha, JJ ..... held
inherent jurisdiction or where “if a suit is based on an earlier declaratior decree and such decree is
the earlier decision was not contrary to the law prevailing at the time of it’s consideration as to it’s
based on a good law. legaliaty or is a drecree granted b a court which has no jurisdiction to grant
such decree, pricnicple of res-judicata under section 11 CPC will not be
attracted and it is open to the defendant in such suits to establish that the
declaratory decree relied upon by the plaintiff is not based on a good law or
court granting such decree didn’t have the jurisdiction to grant such
decree.)

30) Mathura Prasad Bajoo Jaiswal and Others Vs. Dossibai N.B.
Jeejeebhoy (AIR 1971 SC 2355) {Generally resjudicata will apply on
erroneous decision. However, the SC has carved out the following
exceptions where res judicata will not be applicable:

* Where cause of action are different;

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* Law has been altered since the earlier decision and such alteration of law
is applicable retrospectively so as to affect the cause of action on which the
earlier decision was given;

* If the earlier decision declared valid a transaction which is prohibited by

law i.e. a case of manifest error;

* If the issue related to an interpretation of law or relate to the jurisdiction

of the court to try the suit.

31) Sheodan Singh Vs. Daryao Kunwar (AIR 1966 SC 1332, 4

Judge Bench) {Where the trial court has decided two suits having
common issued on the merits and there are two appeals there from and
one of them is dismissed on some preliminary ground, like limitation or
default in printing, with the result that the trail court’s decision stands
confirmed, the decision of the appeal Court will be res judicata and the
appeal court must be deemed to have heard and finally decided the matter.
In such a case the result of the decision of the appeal court is to confirm
the decision of the trial court given on merits, and if that is so the decision
of the appeal court will be res-judicata.}

Competency of court and 32) Nabin Majhi Vs. Tela Majhi (AIR 1978 Cal 440) {Held that court
Explanation VIII of limited jurisdiction is courts other than ordinary civil courts such as
Revenue Courts, Land Acquisition Courts, Insolvency Courts etc. A court of
limited pecuniary jurisdiction cannot be said to be a court of limited
jurisdiction. Reading explanation VIII along with Section II, it is clear that if
the former court is unable to try the subsequent suit as beyond its
pecuniary jurisdiction, the decision of the former court will not operate as
res judicata in the subsequent suit.)

33) Devoki Amma Vs. Kanhi Raman (AIR 1980 Ker 230) {The
Hon’ble High Court of Kerela did not agree with Calcutta High Court view
and observed that a term “a court of limited jurisdiction” is wide enough to
include a court whose jurisdiction is subject to a pecuniary jurisdiction and it
will not be right to interpret the said expression as connoting only courts
other than ordinary civil courts. Such a narrow and restricted interpretation
is not warranted by the words used by Parliament.)

34) Sulechana Amma Vs. Narayanan Nayar (AIR 1994 SC 152) {The
Hon’ble Apex Court has affirmed the view of Kerela High Court in Devoki
Amma case and held that the limited jurisdiction of the court can be either
because of subject matter limited jurisdiction or because of pecuniary
limited jurisdiction. It would depend upon the nature of the suit as to what
kind of limited jurisdiction can be invoked.) Read Sulochana Amma case in
more derails at pg no 243 of

35) Church of South India Trust Association Vs. Telugu Church

Council (1996 SC) (held that the word competent in section 11 includes
pecuniary as well as subject matter jurisdiction. Territorial jurisdiction is not
included in the word competent. Thus even if the former court was having
pecuniary as well as subject matter jurisdiction to try subsequent suit but
not territorial jurisdiction, still res-judicata will apply.

Res judicata on writ petitions 36) Daryao Vs. State of UP. (AIR 1961 SC 1457) (The Hon’ble
Supreme Court has exhaustively dealt with the question of applicability of
the principle of res-judicata in writ proceedings and laid down certain
principles:

* If a petition under Article 226 is considered on merits as a contested

matter and is dismissed, the decision would continue to bind the parties,
unless it is otherwise modified or reversed in appeal or other appropriate
proceedings penmssible under the Constitution.

* It would not be open to a party to ignore the said judgment and move the
Hon’ble Suprme Court under Article 32 by an original petition made on the
same facts and for obtaining the same or similar order or writs.

* If a petition under Article 226 in a High Court is dismissed not on merits

but because of laches of the party applying for the writ or because it is held
that the party had an alternative remedy available to it, the dismissal of the
writ petition would not constitute a bar to a subsequent petition under
Article 32.

Conclusiveness of foreign 37) International Woolen Mill Vs. Standard Wool (2001 SC) {held
judgment i.e. section 13 that in ex-parte proceedings even if the defendant is not allowed to
participate due to default on the part of the defendant, evidence shall be
taken from the plaintiff. If a decree is passed without taking such evidence,
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merits of the case would be defeated. Here pleadings on the part of the
plaintiff or presentation of document would not be sufficient unless such
pleadings and documents re proved by the plaintiff.}

38) R. Vishwanathan Vs. Rukn-ul-Mulk Syed Abdul Wajid (1963

SC) {held that if the foreign judgment is passed during the pendency of
suit in India, then also it shall be conclusive.}

Sections 35 and 35-A 39) Sanjeev Kumar Jain Vs. Raghubir Saran Charitable Trust
[(2011) 1 SCC 455, decided on 21-10-2011, MANU/ SC/ 1285/ 2011]
(R.V. Raveendran, A.K. Patnaik, JJ.) (The court speaking through RV.
Raveendran, J., held as follows:

* On section 35 i.e. on awarding costs: The discretion vested in the

court for awarding costs under section 35 CPC is subject to two conditions
as evident from section 35- Firstly, the discretion of the court is subject to
such conditions and limitations as may be prescribed by law for the time
being in force, Secondly, Where the court does not direct that costs shall
follow the event, it shall state its reasons in writing. The mandate of sub-
section (2) of section 35 is that “where the court direct that costs shall not
follow the event, it shall state the reason in writing” is seldom followed in
practice by courts. Many courts either do not make any order as to costs or
direct the parties to bear their respective costs without recording or
assigning the reasons for giving such exemption from costs. Unless the
courts develop the practice of awarding costs in accordance with section 35
i.e. costs following the event and assigning reasons if costs does not follow
the event, the object for the provision of the cost would be defeated.
Prosecution and defence of cases is a costly and time consuming process,
therefore, a plaintiff/petitioner/appellant who is driven to the court by the
illegal acts of defendants/respondent, or denial of a right to which he is
entitled, if he succeeds to be reimbursed of his expepses in accordance with
law. Similarly, if a defendant/respondent who is dragged to courts
unnecessarily or vexatiously, if he succeeds, should be reimburshed of his
expenses in accordance with law. The court observed that it is well
recognised that levy of costs and compensatory costs is one of the effective
way of curbing false and vexatious litigation.

* On secion 35-A i.e. compensatory costs in respect of false or

vexatious claims or defences: At present the i&aximum costs that can
be awarded for compensatory costs in respect of false or vexatious claims
or defences is Rs. 3000. The court observed that unless the compensatory
costs is brought to a realistic level, the present provision authorizing levy of
an absurdly small sum by present day standard may instead of discouraging
such litigation, encourage false and vexatious claims. Therefore, the SC has
recommended to the government to raise the level of compensatory costs
atleast upto Rs. 1,00,000. The court further explained that description of
the costs under section 35-B as “compensatory costs” gives an indication
that it is restitutive rather punitive. The costs awarded for false or vexatious
claims or defence should be punitive and not compensatory. Infact,
compensatory costs is something that is contemplated in 35-B and 35 itself,
therefore, the legislature may consider award of punitive costs under
section 35-A.

40) Vinod Seth Vs. Devendra Bajaj and another [(2010) 8 SCC 1],
[R.V. Raveendran and RM. Lodha, JJ., Judgment by R.V Raveendran, J.]
{Following question arose for consideration before The Hon’ble Apex Court:
“Whether the court has the power to pass an order directing a plaintiff in a
suit for specific performance (or any other suit), to file an undertaking that
in the event of not succeeding in the suit, he shall pay Rs. 25 lakhs (or any
other sum) by way of damages to the defendant?”

The court held that the Code nowhere authorises or empowers the court to
issue a direction to a plaintiff to file an undertaking to pay damage to the
defendant in the event of being unsuccessful in the suit. The Code also
does not contain any provision to assess the damages payable by a plaintiff
to the defendant, when the plaintiff’s suit is still pending without any
application by the defendant and without a finding of any breach or
wrongful act and without an inquiry into the quantum of damages. There is
also no contract between the parties which requires the appellant to furnish
such undertaking. None of the provisions of either TP Act or the Specific
Relief Act or any other substantive law enables a court to issue such an
interim direction to a plaintiff to furnish an undertaking to pay damages.

The Court then make an inquiry whether such an order can be passed by
virtue of section 151 of Code and thereafter the court held that a suit or
proceeding initiated in accordance with law cannot be considered as an
abuse of the process of the court, only on the ground that such suit or
proceeding is likely to cause hardship or is likely to be rejected ultimately.

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As there are specific provisions in the code relating to code, security for
costs and damages, the court cannot invoke section 151 on the ground that
the same is necessary for the ends of justice. Therefore we are of the view
that a court trying a civil suit, cannot in exercise of inherent power under
section 151 of the Code, make an interim order directing the plaintiff to file
an undertaking that he will pay a sum directed by a court to the defendant
as damages in case he fails in the suit.

Section 35 B, Meaning of the 41) Manohar Singh Vs. D.S. Sharma [(2010) 1 SCC 53, AIR 2010 SC
term ‘further prosecution of 508, R.V. Raveendran and G.S. Singhvi, JJ.] {Section 35 B of the Code
suit” and “further prosecution of Civil Procedure provides that if costs are levied on the plaintiff for causing
of defence” used in section 35B delay, payment of such costs on the next hearing date shall be a condition
precedent to the further prosecution of the suit by the plaintiff. The
question before The Hon’ble Apex Court was whether refusal to pay such
cost to the witness be a ground to dismiss the civil suit as done by the trial
court and later affirmed by the Delhi High Court. The Court speaking
through R.V. Raveendran, J., held as follows:

A) If the legislature intended that the suit should be dismissed in the event
of non payment of costs by the plaintiff, or that the defence should be
struck off and the suit should be decreed in the event of non payment of
costs by the defendant, the legislature would have said so. On the other
hand the legislature stated in the Rule that payment of costs on the next
date shall be condition precedent for further prosecution of the suit by the
plaintiff (where plaintiff was ordered to pay such costs), andacondition
precedent to the further prosecution of the defence by the defendant
(where defendant was ordered to pay such costs). This would mean that f
the costs levied were not paid by the party on whom it is levied. such
defaulting party Li prohibited from any further participation in the suit. In
other words, he ceases to have any further right to participate in the suit
and he will not be permitted to let in any further evidence or address
arguments. The other party will of course be permitted to place his
evidence and address arguments, and the court will then decide the matter
in accordance with law.

B) However the court may enlarge the time for payment of costs by
defaulting party in exceptional cases by virtue of section 148 of the Code.

C) Quoting proviso (e) to Rule 1(2) of Order XVII, the Court observed that
where a witness is present in the court but the other side is not ready to
cross examine the witness, the court can dispense with his cross
examination. But where a genuine and bonafide request is made for
adjournment, instead of resorting to forfeiture of the right to cross examine,
the court may grant time by levying costs.

Suit by or against the Suit by or against the Government or Public officers, Sees 79-82
Government or Public officers, and Order XXVII
Sees 79-82 and Order XXVII
42) Salem Adv Bar Association Vs. Union of India [(2005) 6 SCC
344, AIR 2005 SC 3353] {it has been held that the purpose of two
months prior notice is to enable the government or public servant to make
the necessary arrangements in order to bring about out of court settlement
or to take any necessary steps to avoid litigation.

43) Bihari Chawdhary Vs. State of Bihar (AIR 1984 SC 1043) {the
purose behind the provision of 2 months notice has been highlighted by the
Hon’ble Apex Court as follows:

“The effect of the Section is clearly to impose a bar against the institution of
a suit against the Government or a public officer in respect of any act
purported to be done by him in his official capacity until the expiration of
two months nfter notice in writing has been delivered to or left at the office
of the Secretary to Goveniment or Collector of the concerned district and in
the case of a public officer delivered to him or left at his office, stating the
particulars enumerated in the last part of sub-section (I) of the Section.

When we examine the scheme of the section it becomes obvious that the
section has been enacted as a measure of public policy with the object of
ensuring that before a suit is instituted against the Government or a public
officer, the Government or the officer concerned is afforded an opportunity
to scrutinise the claim in respect of which the suit is proposed to be filed
and if it be found to be a just claim, to take immediate action and thereby
avoid utmecessary litigation and save public time and money by settling the
claim without driving the person, who has issued the notice, to institute the
suit involving considerable expenditure and delay. The 92yc..!!W4c private
parties, is expected to consider the matter covered by the notice in a most
objective manner, after obtaining such legal advice as they may think fit,
and take a decision in public interest within the period of two months
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allowed by the section as to whether the claim is just and reasonable and
the contemplated suit should, therefore, be avoided by speedy negotiations
and settlement or whether the claim should be resisted by fighting out the
suit if and when it is instituted. There is clearly a public purpose underlying
the mandatory proviion contained in the section insisting on the issuance of
a notice setting out the particulars of the proposed suit and giving two
months’ time to Government or a public officer before a suit can be
instituted against them. The object of the section is the advancement of
justice and the securing of public good by avoidance of unnecessary
litigation.

44) LAW COMMISSION’S 14th REPOT: The 14th Law Commission Report
has recommended for the deletion of section 80(1). It stated:
“The evidence disclosed that in a large majority of cases, the government or
the public officer made no use of the opportunity afforded by the section. In
most cases the notice given under section 80 remained unanswered till the
expiry of the period of two months provided by the section. It was also
clears that, in a large number of cases, government and public officer
utilized the section merely to raise technical defences contending either that
no notice had been given or that the notice actually given did not comply
with the requirements of the section. “These technical defences appeared to
have succeeded in a number of cases defeating the just claims of citizens.”

45) State of Punjab Vs Geeta Iron & Brass Works (AIR 1978 SC
1608) {Krishna lyer J stated as follows Section 80 has become a ritual
because the administration is often unresponsive and hardly lives up to
Parliament’s expectation in continuing section 80 in the Code despite the
Central Law Commission s recommendations for its deletion.)

46) Ghanshyam Dass Vs. Dominion of India (AIR 1984 SC 1004)

the provisions of the section are not intended to be used as boobytraps
against ignorant and illiterate persons.)

Section 89, new construction of 47) Afcons Infrastructure Ltd. and Anr. Vs. Cherian Varkey
section Constuction Co. (Pvt) Ltd and others [(2010) 8 SCC 24, Judgment
delivered by R.V. Raveendran on 26-07-2010] {The court made two
changes in section 89 of the Code as follows: “Firstly, it is not necessary for
the court, before referring the parties to an ADR process to formulate or re-
formulate the terms of a possible settlement. It is sufficient if the court
merely describes the nature of dispute (in a sentence or two) and makes
the reference. Secondly, the definitions of ‘judicial settlement’ and
‘mediation’ in Clauses (c) and (d) of section 89(2) shall have to be
interchanged to correct the draftsman’s error. Clauses (c) and (d) of section
89(2) of the Code will read as under when the two terms are interchanged:

(c) for “mediation”, the court shall refer the same to a suitable institution or
person and such institution or person shall be deemed to be a Lok Adalat
and all the provisions of the Legal Services Authority Act, 1987 (39 of 1987)
shall apply as if the dispute were referred to a Lok Adalat under the
provisions of that Act;

d) for ‘judicial settlement”, the court shall effect a compromise between the
parties and shall follow such procedure as may be prescribed.

The Hon’ble Supreme Court made it clear that- “above changes made by
interpretative process shall remain in force till the legislature
corrects the mistakes, so that section 89 Is not rendered
meaningless and infructuous.”

Whether reference to ADR is mandatory: In this regard the Court

observed as follows: “Section 89 starts with the words ‘where it appears to
the court that there exist elements of a settlement’ - This clearly shows that
cases whicif are not suited for AUR process should not be referred under
section of the Code. The Court has to form an opinion that a case is one
that is capable of being referred to and settled tbtough ADR process.
Having regard to the tenor of the provisions of Rule I-A of order 10 of the
Code, the civil court should invariably refer cases to ADR process. Only in
certain recognized excluded category of cases it may choose not to refer to
an ADR process. Where the case is unsuited for reference to any of the ADR
processes, the court will have to briefly record the reasons for not resorting
to any of the settlement procedure prescribed under section 89 of the Code.
Therefore, after a hearing after completion of pleadings, to consider
recourse to ADR process under section 89 of the Code is mandatory. But
actual reference to an ADR process in all cases is not mandatory. Where the
case falls under an excluded category, thereneed not be reference to ADR
process. In all other cases reference to ADR process is must.

Paragraph 43 nnd 44 of the Judgment in Afcons Infrastructure

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 77

case:

“43. We may summarize the procedure to be adopted by a court under

section 89 of the court as follows:

a) When the pleadings are complete, before framing issues,the court shall
fix a prelimary hearing for appearance of parties. The court should acquaint
itself with the facts of the case and the nature of the dispute between the
parties.

b) The court should first consider whether the case falls under any of the
category of the cases which are required to he tried by courts and not fit to
be referred to any ADR processes. If it finds the case falls under any
excluded .kc14. reco rd a brief order referring to the nature of the case and
why it is not fit for the reference to the ADR processes. It will then proceed
with the framing of issues and trial.

c) In other cases (that is, in cases which can be referred to ADR processes)
the court should explain the choice of five ADR processes to the parties to
enable them to exercise their option.

d) The Court should first ascertain whether the parties are willing for
arbitration. The Court should inform the parties that arbitration is an
adjudicatory process by a chosen private forum and reference to arbitration
will permanently take the suit outside the ambit of the court. The parties
should also be informed that the cost of the arbitration will have to be
borne by them. Only if both parties agree for arbitration, and also agree
upon the arbitrator, the matter should be referred to arbitration.

e) If the parties are not agreeable for arbitration, the court should ascertain
whether the parties are agreeable for reference to conciliation which will be
governed by the provisions of the Arbitration and Conciliation Act. If all the
parties are agreeable for reference to conciliation and agree upon the
conciliator(s), the court can refer the matter for conciliation in accordance
with section 64 of the Arbitration and Conciliation Act 1996.

f) If the parties are not agreeable for arbitration and conciliation, which is
likely to happen in most of the cases for want of consensus, the court
should, keeping in view the preferences/options of the parties, refer the
matter to any one of the other three ADR processes: (a) Lok Adalat; (b)
mediation by a neutral third party facilator or mediator; and (c) a judicial
settlement, where a judge assists the parties to arrive at a settlemeni

g) If the case is simple which may be completed in a single sifting, or cases

relating to a matter where the legal principles are clearly settled and there
is no personal animosity between the parties (as in the case of motor -
accident claims), the court may refer the matter to Lok Adalat. In case
where the questions are complicated or cases which may require several
rounds of negotiations, the court may refer the matter to mediation. Where
the facility of mediation is not available or where the parties opt for the
guidance of a judge to arrive at a settlement, the court may refer the
matter to another judge for attempting settlement.

h) If the reference to ADR process fails, on receipt of the report of the ADR
forum, the court shall proceed with hearing of the suit. If there is a
settlement, the court shall examine the settlement, and make a decree in
terms of it, keeping the principles of Order 23 Rule 3 of the Code in
mind.

i) If the settlement includes disputes which are not the subject matter of
the suit, the court may direct that the same will be governed by section 74
of the Arbitration and Conciliation Act (if it is a conciliation settlement) or
section 21 of the Lcgal Services Authorities Act, 1987 (if it is a settlement by
a Lok Adalat or by mediation which is deemed Lok Adalnt). If the settlement
is through mediation and it relates not only to disputes which are the
subject matter of the suit, but also other disputes involving persons other
than the parties to the suit, the court may adopt the principle underlying
Order 23 Rule 3 of the Code. This will be necessary as many settlement
agreements deal with not only the disputes which are the subject matter of
the suit orproceeding in which reference is made, but also other disputes
which are not the subject matter of the suit.

j) If any term of the settlement is ex facie illegal or enforceable, the court

should draw the attention of parties thereto to avoid further litigations and
disputes about executability.

44. The Court should also bear in mind the following consequential

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aspects, while giving effect to section 89 of the Code:

a) If the refaence is to arbitration and conciliation, the court has to record

that the reference is by mutual consent. Nothing further need to be stated
in the order sheet.

b) If the reference is to any other ADR process, the court should briefly
record that having regard to the nature of the dispute, the case deserve to
be referred to Lok Adalat, or mediation or judicial settlement, as the case
may be. There is no need for an elaborate order for making the reference.

c) The requirement in section 890) that the court should formulate and
reformulate the terms of settlement would only mean that the court has to
briefly refer the nature of dispute and decide upon the appropriate ADR
process.

d) If the Judge in charge of the case assists the parties and if settlement
negotiations fail, he should not deal with the adjudication of the matter, to
avoid apprehension of bias and prejudice. It is therefore advisable to refer
cases proposed for judicial settlement to another Judge.

e) If the court refer the matter to an ADR process (other than Arbitration),
it should keep track of the matter by fixing a hearing date for the ADR
report. The period allotted for the ADR process can normally vary from a
week to two months (which may be extended in exceptional cases,
depending on the availability of the alternative forum, the nature of case
etc). Under no circumstances the court should allow the ADR process to
become a tool in the hands of an unscrupulous litigant intent upon dragging
on the proceedings.

f) Normally the court should not send the original record of the case when
referring the matter for an ADR forum. It should make available only copies
of relevant papers to the ADR forum. (For this purpose, when pleadings are
filed the court may insist upon filing of an extra copy). However, if the case
is referred to a court annexed mediation centre which is under the exclusive
control and supervision of a judicial officer, the original file may be made
available whenever necessary.”

The court further held that under section 89 of the Code parties can be
refened to arbitration only when there is consent of both the parties. There
cannot be a reference to arbitration under section 89 unless there is mutual
consent of all the parties for the reference. The court cited following cases
in this regard:

1) Salem Advocate Bar Association, Tamil Nadu Vs. Union of India

(AIR 2003 SC 189)

2) Salem Advocate Bar Association, Tamil Nadu Vs. Union of India

[AIR 2005 SC 3353, (2005) 6 SCC 344]

3) Jagdish Chander Vs. Ramesh Chander [(2007)5 SCC 719]

238 Report of the Law Commission of Jndia on Amendment of

Section 89 CPC and other allied provisions: The Law Commission in its
238 Report which is presented to Law Minister on 30th December 2011 also
vindicated the stand taken by the Hon’ble Supreme Court in Afcons case
and recommended amendment to Section 89 and other allied provisions.

Recommendntions of the Commission: “Para 7 of the Report: Section

89 of the CPC which provides for settlement of disputes outside the court is
inappropriately worded, pointed out by the Hon’ble Supreme Court in
Afcons Infrastructure Limited Vs. Cherian Varkey Construction Co. Ltd. The
language adopted has created difficulty in giving effect to the provision.
Section 89 should be recast as indicated in Pan 6.2. Secondly the allied
provisions, namely Order X, Rules IA to IC need recasting. The proposed
amendment of the said Rules in Order X is set out in Paragraph 6.3. Thirdly
section 16 of the Court Fees Act 1870 is required to be recast in order to
ensure that unintended benefit does not go to the plaintiff.”

Section 92 i.e. suits relating to Section 92 i.e. suits relating to public trusts
public trusts
48) Harendra Nath v Kaliram Das (AIR 1972 SC 246) {the court
highlighted the essential ingredients for the applicability of this section:

i. The trust must have been created for public purposes of a charitable or
religious nature.

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ii. There must be a breach of trust or direction of the court which is

necessary in the administration of the trust.

iii. The relief claimed must be one or the other of the reliefs specified in the
section.

Doctrine of Cypres Doctrine of Cypres

49) Ratilal Vs. State of Bombay (1954 SC) {the Hon’ble Supreme
Court explained the doctrine as follows: -

“When the particular purpose for which a charitable trust is created fails or
by reason of certain circumstances the trust cannot be carried into effect
either in whole or in part, or where there is a surplus left after exhausting
the purposes specified by the settler, the court would not, when there is a
general charitable intention expressed by the settler, allow the trust to fail
but would execute it cypres, that is to say, in some way as nearly as
possible to that which the author of the trust intended. In such cases, it
cannot be disputed that the court can frame a schedule and give suitable
directions regarding the objects upon which the trust money can be spent.)

Order I Rule 10

50) Rajia Begum Vs. Anwar Begum (AIR 1958 SC 886) {The Hon’ble
Supreme Court has explained the applicability of O-1, R-10, as follows:

(I) That the question of addition of parties under R-10 of O-1 of the Code of
Civil Procdure, is generally not one of initial jurisdiction of the court, but of
judicial discretion which has to be exercised in view of all the facts and
circumstances of a particular case; but in some cases, it may raise
controversies as to the power of the court, in contradiction to its inherent
jurisdicton or, in other words, of jurisdiction in the limited sense in which it
is used in section 115 of the Code;

(2) That in a suit relating to property in order that a person may be added
as a party, he should have a direct interest as distinguished from a
commercial interest, in the subject-matter of the litigation;

(3) Where the subject-matter of the litigation, is a declaration as regards

status or a legal character, the rule of present or direct interest may be
relaxed in a suitable case where the court is of the opinion that by adding
that party, it would be in a better position effectually and completely to
adjudicate upon the controversy;

(4) The cases contemplated in the last proposition, have to be determined

in accordance with the statutory provisions of Ss. 42 and 43 of the Specific
Relief Act;

(5) In cases covered by those statutory provisions the court is not bound to
grant the declaration prayed for, on a mere admission of the claim by the
defendant, if the court has reasons to insist upon a clear proof apart from
the admission;

(6) The result of a declaratory decree on the question of status, such as in

controversy in the instant case, affects not only the parties actually before
the Court, but generations to come, and in view of that consideration, the
rule of ‘present interest’, as evolved by case law relating to disputes about
property does not apply with full force; and

(7) The rule laid down in S. 43 of the Specific Relief Act, is not exactly a
rule of res-judicata. it is narrower in one sense and wider in another.

Order II Rule 2 51) Alka Gupta Vs. Narendra Kumar Gupta [(2010) 10 SCC 141,
R.V. Raveendran and H.L. Gokhle, JJ.] (The court held that unless the
defendant pleads the bar under Order II Rule 2 of the Code and an issue is
framed focusing the parties on that bar to the suit, court cannot examine or
reject a suit on that ground. The pleadings in the earlier suit should be
exhibited or marked by consent or atleast admitted by both the parties. The
plaintiff shduld have an opportunity to demonstrate that the second suit wrs
based on different cause of action.

In the instant case the respondent didn’t contend that the suit was barred
by Order II Rule 2 of the code. No issue was framed as to whether the suit
was barred by Order II Rule 2 of the Code. But the Hon’ble High Court
(both trial and appellate bench) have erroneously assumed that a plea of

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res-judicate would include a plea of bar under Order-II Rule-2 of Code. Res
judicata relates to the plaintiff’s duty to put forth all the grounds of attack in
support of his claim, whereas Order II Rule 2 of the Code requires the
plaintiff to claim all reliefs flowing from the same cause of action in a single
suit. The two pleas are different and one will not include the other. The
dismissal of the suit by the Hon’ble High Court under Order II Rule 2 of the
Code, in the absence of any plea by the defendant and in the absence of an
issue in that behalf, is unsustainable

52) Ketal Singh Vs. Lajwanti (1980 SC) cited another case of Mohd
Khalil Vs. Mahbub Ali Mian (PC 1949) (the court held as follows:-

* The real test of O-II, R-2 is whether there is an identity of COA in both
the suit

* COA is a bundle of facts relating to the existence of a right and violation

of that right which will go on to prove the case of the plaintiff

* COA can be inferred from the evidences produced in the case and also
matters in issue and therefore I order to examine the matters in issue and
evidences, the court shall, examine the pleadings in both the cases and as
well as it is free to summon any of the witness for the purpose
of examining not the merit of the case rather to examine COA.

* Written statement shall not have to do anything with COA and therefore,
the court will not take into account the WS while detennining the COA.

* Therefore, it is essential that the party objecting under 0 II R 2 shall

produce the copy of plaint in both the cases and also a copy of the previous
judgment

53) Shiv Kumar Shanna Vs. Santosh Kumari (2007 SC)

54) Gurbax Singh Vs. Boora Lal (AIR 1964 SC 1810) (held that O-II R
2 is not applicable to the cases where COA are distinct and when the relief
claimed in the subsequent suit was not available at the time of filing of the
first suit either because law didn’t allow or hecauseparty didn’t know despite
due diligence.}

Order VI Rules 17-18 i.e. 55) B.K.N. Pillai Vs. P. Pillai (AIR 2000 SC 614) {held that inconsistent
amendment of pleadings and contradictory allegations in negation to the admitted position of facts or
mutually destructive allegations of facts should not be allowed tobe
incorporated by means of amendment of pleadings)

56. Usha Bala Sahib Swami & Ors Vs. Kiran Appasao & Ors (2007
SC) {if a pleading destroys the other pleadings then amendment will not
allowed to incorporate that mutually destructive pleading.)

57. Andhra Pradesh Vs. ABN Amro Bank (2007 SC) {held that if the
opposite party has already acquired a right which is irreversible even by
payment of costs, amendment of pleadings will not be allowed to take the
right.)

Related to subsequent change of law

58). Om Prakash Gupta Vs. Ranbir B. Goyal (2002 SC) {If there is
change in law during the pendency of the suit then the following
circumstances will arise:

* If the procedural law has been changed, the party concerned needn’t
raise the pleadings regarding the applicability of the changed procedural
law as either the court will itself take note of the fact or the party can bring
the facf to the notice of the court without any amendment of pleadings.

* If the substantive law has been changed and is applicable retrospectively,

it may affect the COA and in such a case an amendment corresponding to
the change of law can be made.

59. Sampat Kumar Vs. Ayya Kannu and another (2002 SC)
{whenever the court decides upon an amendment of pleadings, it is not a
determination upon a merit of the case and therefore, any observation of
the court upon such an application will not reflect upon the merits of the
case.)

60) State of A.P. and others Vs. M/s Pioneer Builders (2000 SC)
{held that an order of amendment of pleadings shall be a speaking order.}
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 81

Order VII Rules 11 i.e. On ground of non-disclosure of cause of action

Rejection of Plaint
61) Rup Lal Sathi Vs. Nalchattar Singh Gill (1982 SC)

62) Popat and Kotecha Properties Vs. SBI, Staff Association (2005
SC)

63) Mayar H.K. Ltd. Vs. Owners and Parties, Vessel M.V. Fortune
Express (2006 SC)

{ln these three cases the Hon’ble Apex Court has given direction regarding
rejection of plaint on the ground that it does not disclose cause of action.
The court held that in order to apply clause (a) of Rule II of Order VII, it
has to be seen whether in the plaint which includes amendment of
pleadings expressly declares the cause of action and if no then upon a
combined reading of all the pleadings, can the COA be inferred. ifyesthen
clause (a) will not apply. In order to examine the cause of action the court
can even examine the plaintiff only for the purpose of seeking an
explanation to some pleadings. The court shall not take a mechanical
approach in examining the pleading rather it shall examine the substance of
the pleadings as a whole. It can’t be read isolated sentences without the
context of entire pleadings and thereupon reject the plaint. COA cannot be
inferred from the Written statement, it can only be inferred by the
examination of plaint.)

Rejection of plaint on ground of On the ground of barred by law

limitation under Order VII Rule
11(d) 64) Ram Prakash Gupta Vs. Rajiv Kumar Gupta [(2007) 10 SCC 59,
Before Tarun Chatterjee and P. Sathasivam, Judgment by P. Sathasivam, J.]
(Held Order VII Rule 11(d) makes it clear that if the plaint does not contain
averments relating to limitation, the same is liable to be rejected. For the
said purpose, it is the duty of the person who files such an application to
satisfy the court that the plaint does not disclose how the same is in time.
In order to answer the said question it is incumbent on the part of the court
to verify the entire plaint. Before passing an order in an application filed for
rejection of plaint under Order VII Rule 11(d) it is obligatory on the court to
verify the entire plaint. While deciding the application under Order VII Rule
11(d), few lines or passage should not be read in isolation and pleadings
have to be read as a whole to ascertain its true import.}

65.) Smt. Mridula Singh @ Bulbul Vs. Brahm Deo Prasad Singh
(2005 Pat HC) (the defendant had rejected on the ground that the suit is
barred by law under cl (d) of Rule II of order VII on the basis that property
in question was purchased out of the joint family funds by the coparcenors
but was got registered in the wife of one of the coparcenor and therefore,
being a benami transaction, a suit for declaration of title to such property
would be bar according to Benami Transaction Prohibition Act. It was held
that in order to prove that transaction was benami, evidences will have to
be laid for that purpose and therefore, being a demurrer’s claim, plaint can‘t
be rejected.)

66) Premlal Nahata and another Vs. Chandi Prasad Sikaria (2007
SC) (for rejection of plaint on the ground that it is barred by law, the
following two condition must be satisfied:

* That there is some provision of law which expressly bars the institution of
such suit;

* That the circumstances which create the bar can be found in the
pleadings of the plaint itself.)

On the ground of ‘suppression of material facts’

67) S.J.S. Business Enterprise (Pvt) Ltd Vs. State of Bihar (2004
SC) (held that a plaint can be rejected on the ground of suppression of
material facts i.e. suppressing such facts which hits at the foundation of the
suit.)

Order VIII Rule I i.e. Filing of Cases on extension of period for filing written statement even beyond 90
Written Statement days

68) Shaikh Salim Haji Abdul Khayumsab Vs. Kumar [(2006) 1 SCC
46, AIR 2006 SC 396, Arijit Pasayat and R.V. Raveendran, JJ.] {The
Court followed the ratio of Kailash Vs. Nankhu, Salem Advocate case and
Rani Kusum case and held that although Order VIII Rule I says that written
statement has to be filed within 90 days from the date of summon to the
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 82

defendant in exceptional cases for the advancement of justice written

statemeit can be accçpted by the court even if it has been filed beyond 90
days. The Court observed that all the rules of procedure are the handmade
of justice. The language employed by the draftsman of procedural law may
be liberal or stringent, but the fact remains that the object of prescribing
procedure is to advance the cause of justice. In an adversarial system no
party should ordinarily be denied the opportunity of participating in the
process of justice dispensation. While justice delayed may amount to justice
denied, justice hurried may in some cases amount to justice buried.

69) Kailash Vs. Nankhu [(2005) 4 SCC 480, 3 Judge Bench By R C

Lahoti] {Held that though Order VIII, Rule I of the CPC is a part of
Procedural Law and hence directory, keeping in view the need for
expeditious trial of civil causes which persuaded the Parliament to enact the
provision in its present form, it is held that ordinarily the time schedule
contained in the provision is to be followed as a rule and departure
therefrom would be by way of exception. A prayer for extension of time
made by the defendant shall not be granted just as a matter of routine and
merely for asking more so then the period of 90 days has expired.
Extension of time may be àllowed hy way of an exception, for reasons to be
assigned by the defendant and also be placed on record in writing,
howsoever briefly, by the Court on its being satisfied. Extension of time may
be allowed if it was needed to be given for the circumstances which are
exceptional, occasioned by reasons beyond the control of the defendant
and grave injustice would be occasioned if the time was not extended.
Costs may be imposed and affidavit or documents in support of the grounds
pleaded by the defendant for extension of time may be demanded,
depending on the facts and circumstances of a given case.)

70) Salem Advocate Bar Association, T.N. Vs. Union of India

[(2005) 6 SCC 344, By Y.K. Sabharwal, J.] (held as follows in Para 21
and 22: (Para 21, The use of the word ‘shall’ in Order VIII Rule I by itself is
not conclusive to determine whether the provision is mandatory or
directory. We have to ascertain the object which is required to be served by
this provision and its design and context in which it is enacted. The use of
the word ‘shall’ is ordinarily indicative of mandatory nature of the provision
but having regard to the context in which it is used or having regard to the
intention of the legislation, the same can be construed as directory. The
rule in question has to advance the cause of justice and not to defeat it.
The rules of procedure are made to advance the cause of justice and not to
defeat it. Construction of the rule or procedure which promotes justice and
prevents miscathage has to be preferred. The rules or procedure are hand-
maid of justice and not its mistress. In the present context, the strict
interpretation would defeat justice.

22. In construing this provision, support can also be had from Order VIII
Rule 10 which provides that where any party from whom a written
statement is required under Rule 1 or Rule 9, fails to present the same
within the time permitted or fixed by the Court, the Court shall pronounce
judgment against him, or make such other order in relation to the suit as it
thinks fit. On failure to file written statement under this provision the Court
has been given the discretion either to pronounce judgment against the
defendant or make such other order in relation to suit as it thinks fit. In the
context of the provision, despite use of the word ‘shall’ the court has been
given the discetion to pronounce or not to pronounce the judgment against
the defandant even if written statement is not filed and instead pass such
order as it may think fit in relation to the suit. In construmg the provision of
Order VIII Rule 1 and Rule 10, the doctrine of harmonious construction is
required to be applied. The effect would be that under Rule 10 of Order
VIII, the court in its discretion would have power to allow the defendant to
file written statement even after expiry of period of 90 days provided in
Order VIII Rule 1. There is no restriction, in Order VIII Rule 10 that after
expiry of ninety days further time cannot be granted. The Court has wide
power to make such order in relation to the suit as it thinks fit.’ Clearly
therefore the provision of Order VIII Rule I providing for upper limit of 90
days to file written statement is directory. Having said so, we wish to make
it clear that the order extending time to file written statement cannot be
made in routine. The time can be extended only in exceptionally hard cases.
While extending time, it has to be borne in mind that the legislature has
fixed the upper time limit of 90 days. The discretion of the Court to extend
the time shall not be so frequently and routinely exerciscd so as to nullify
the period fixed by Order VIII Rule 1.}

71) Srimati Rani Kusum Vs. Smt Kanchan Devi (2005 SC)

72) M/s R.N. Jadi and Brothers Vs. Subhash Chandra (2007 SC)
{held in these cases that in appropriate cases where justice so demand,
written statement will be allowed to be filed even after the expily
of9OdiysprovidedbyR tofOrderVIlI
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 83

Order IX Rule 7 Order IX Rule 7

73) Arjun Singh Vs. Mohindra Kumar (I964 SC, 3 Judge Bench,
Ayyangar, J.) {held that under O-IX R-7 the order for ex-parte
proceedings can be got set aside by showing good cause. By setting the
order aside means that the entire proceedings that were conducted in the
absence of the defendant will be done away with and the proceedings will
relegate back at the stage at which the defendant was absent and now
from that stage the proceedings will proved then the court held that such
relegation will not be allowed but since the ex-parte proceedings is not in
the form of penalty upon defendant, the court will allow a defendant a
participation in the subsequent proceedings from the date of appearance.}

Order IX Rule 13 i.e. Settig Order IX Rule 13 i.e. Settig aside ex-parte decree
aside ex-parte decree
74) G. P. Srivastava Vs. R.K. Raijada & others (2000 SC) {held that
the sufficiency of the cause for non appearance has to be examined with
respect to the date on which the non appearance was done and order for
ex-parte proceedings has been passed and not for any earlier negligence on
the part of defendant.}

75) Malkiat Singh & Anr. Vs. Joginder Singh & Anr. (Read Pg.-138
of Rahul Sir’s note) {held that misleading by lawyer is sufficient cause for
setting aside the decree passed by ex-parte.}

76) Vijay Kumar Madan & Ors Vs. R. N. Gupta Technical Education
Society & Ors (2006 SC) {held that the costs upon setting aside the
decree shall be proportionate and it can’t be in the nature of penalty.

Assume traversed Assume traversed

77) M/s Anant Construction Pvt. Ltd. Vs. Shri Ram Nivas (1994 Del
HC) {held that theory of deemed admission applies in case of defendant
and not upon the plaintiff. Rather with respect to a plaintiff, the theory of
“Assumed traverse” applies according to which it is presumed that any
additional fact raised by the defendant has been denied by the plaintiff until
and unless it has been specifically admitted.}

Order VIII, Consequences of Order VIII, Consequences of not filing the written statement
not filing the written statement
78) Modula India Vs. Kamakshya Singh (AIR 1989 SC 162)
{explaining the ambit and scheme of Rules 1, 5 and 10 of order VIII the
Hon’ble Apex Court observed: “Rule I merely requires that the defendant
should present a written statement of his defence within the time permitted
by the Court Under Rule 5(2) where the defendant has not filed a pleading
it shall be lawful for the Court to pronounce judgment on the basis of the
facts contained in the plaint except against a person under disability but the
Court may in its discretion require any such fact to be proved. Again under
Rule 10 when any party from whom a written statement is required fails to
present the same within the time permitted or fixed by the Court, the Court
shall pronounce judgment against him or make such order in relation to the
suit as it thinks fit.” It will be seen that these rules are only permissive in
nature. They enable the Court in an appropriate case to pronounce a decree
straightway on the basis of the plaint and the averments contained therein.
Though the present language of Rule 10 says that the Court “shall”
pronounce judgment against him, it is obvious from the language of the
rule that there is still an option with the Court either to pronounce judgment
on the basis of the plaint against the defendant or to make such other
appropriate order as the Court may think fit. Therefore, there is nothing in
these rules, which makes it mandatory for the Court to pass a decree in
favour of the pksintiJfstraightway because a written statement has not been
filed.”

79) Balraj Taneja Vs. Sunil Madan (AIR 1999 SC 3381) {Having
regard to the provisions of O.-12, R.-6; O.-5, R.-8, specially proviso thereto;
as also section 58 of the Evidence Act, the Court has not to act blindly upon
the admission of a fact made by the defendant in his Written Statement nor
the Court should proceed to pass judgment blindly merely because a
Written Statement has not been filed by the defendant traversing the facts
set out by the plaintiff in the plaint filed in the Court. In a case, specially
where a Written Statement has not been filed by the defendant, the Court
should be a little cautious in proceeding under O.-8, R.-10, CPC. Before
passing the judgment against the defendant it must see to it that even if
the facts set out in the plaint are treated to have been admitted, a
judgment could possibly be passed in favour of the plaintiff without
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 84

requiring him to prove any fact mentioned in the plaint. It is a matter of

Court’s satisfaction and, therefore, only on being satisfied that there is no
fact which need be proved on account of deemed admission the court can
conveniently pass a judgment against the defendant who has not filed the
Written Statement. But if the plaint itself indicates that there are disputed
questions of fact involved in the case regarding which two different versions
are set out in the plaint itself, it would not be safe for the Court to pass a
judgment without requiring the plaintiff to prove the facts so as to settle the
factual controversy. Such a case would be covered by the expression “the
Court may, in its discretion, require any such fact to be proved” used in sub
rule (2) of Rule 5 of Order 8, or the expression “may make such order in
relation to the suit as it thinks fit” used in Rule 10 of Order 8.}

Set off 80) Conditions for applicability of set off: A defendant may claim set
off, if the following conditions are satisfied:
(a) The suit must be for the recovery of money.
(b) The sum of money must be ascertained.
(c) Such sum must be legally recoverable.
(d) It must be recoverable by the defendant or by all the defendants, if
more than one.
(e) It must be recoverable by the defendant from the plaintiff or from all
the plaintiffs, if more than one.
(f) It must not exceed the pecuniary jurisdiction of the court in which the
suit is brought.
(g) Both the parties must fill, in the defendant’s claim to set off, the same
character as they fill in the p1w tiff’s suit

Order XI Rule 21 i.e. striking of 81) Babbar Sewing Machine Co. Vs. Trilok Nath Mahajan (AIR 1978
defence SC 1436) {held that a drastic power is conferred under this rule and it is
quite essential that it must be sparingly used. A suit or defence cannot be
lightly thrown. The default must be willful. There must be obstinacy or
contumacy in disregarding the order of the court. Such power must
be exercised as a matter of last resort when faced with willful and
deliberate disregard of the order of the court.

82) Modula India Vs. Kamakshya Singh Deo (AIR 1989 SC 162) (it
is established proposition that if defence of defendant has been struck off
under O-Xl R-21, still he can cross examine the witness of plaintiff to
impeach the veracity of the witness. However, he cannot lead evidence to
establish his defence.)

Uncertified payment under 83) The Code prohibits the executing court from recognizing any payment
execution of decree or adjustment which has not been certified or recorded. The rule is
mandatory and prohibition is absolute. The bar applies as much to a total
discharge as to a partial discharge. Payment or adjustment not certified
under Rule 2(3) of Order XXI would not be recognised by the executing
court. (Pg.444 of C.K. Takwani.)

O-XXI R-22, i.e. notice of 84) As per rule 22 notice is required in following cases:
execution (1) Where an application is made two years after the date of the decree or
more than two years after the date of the last order made on any previous
application for execution.
(2) Where an application is made against the legal representative of the
judgment debtor.
(3) Where an application is made for the execution of a decree passed by
any superior court of reciprocating territory.
(4) Where an application for execution is made against the assignee or
receiver in insolvency, where the judgment debtor has been adjudged to be
an insolvent.
Apart from these four cases, notice also required in following
circumstances:
* Where the decree is for payment of money and the execution is sought
against the person of the judgment debtor. (R-37 of O-XXI)
* Where an application is made against a person who has furnished security
or given a guarantee for the performance of a decree or for the restitution
of property or for the payment of money, to render himself personally liable
or to sell his property. (Section 145)
* Where the application is made by the transferee or assignee of the decree
holder. (R 36 of DXXI)

Simultaneous execution, section 51

85) P.R. Sugar Works Vs. Land Reforms Commissioner (AIR 1969
SC 897)

86) Shyam Singh Vs. Collector, Hamirpur (1993 SC)

Oder XXII i.e. Abatement of suits

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 85

87) Mangluram Dewangan Vs. Surendra Singh and others [(2011)

12 SCC 773, R.V Raveendran and A.K. Patnaik, JJ., Judgment by
R.V. Raveendran]
{Facts of the case: One Pran Nath filed a suit against the respondent for
declaration, possession and damages on 4-8-1989 with regard to an
immovable property. Prannath died on 12-11-1994 during the pendency of
the suit. The appellant tiled an application under Order XXII Rule 3 of CPC
on 27-1-1995 to be added and substituted as the legal representative of
Prannath, claiming that he was the sole legatee under the registered will
dated 10-10-1994 executed by Prannath. The said application was
contested by the respondents/defendants. They denied the allegation that
deceased plaintiff Prannath executed any will in favour of the appellant.
They contended that the appellant was not legal heir nor legatee of
Prannath and therefore, not entitled to be added as a party as the legal
representative of the deceased plaintiff. In view of the contest to the
application, the appellant examined one Balwant who was an attesting
witness to the will. After considering the4ocumentary and oral evidence the
trial court made an order dated 314-1996 holding that there was no
acceptable evience to prove the will and therefore the appellant could not
be held to be legal representative of the appellant. The trial court held that
the application by the appellant under Order XXII Rule 3 of the Code could
not be entertained or accepted and consequently, in the absence of any
legal heir of the plaintiff, dismissed the suit. Feeling aggrieved the appellant
filed an appeal in the court of The Additional District Judge, Bilaspur. The
apellate court allowed the appeal by order dated 28-1-1998. It held that the
registered will was proved by examining one of the attesting witnesses, that
deceased Prannath himself had spbmitted an application in the court in the
pending suit on 25-10-1994 referring to the execution of his will dated 10-
10-1994 and praying that his evidence may be recorded without delay; and
that thereafter appellant was entitled to be impleaded as the legal
representative of the deceased plaintiff. The appellate court rejected the
contention of the respondents/defendants that the appeal was not
maintainable. It held that order of the trial court rejecting an application
under Order XXII Rule 3 would fall within the meaning of the term decree
under section 2(2) of the Code. The appellate court therefore set aside the
order of the trial court dated 31-8-1996, permitted the appellant to be
brought on record and continue the suit as legal representative of the
plaintiff and remanded the suit to the trial court under order Order XLl Rule
23 of the Code for deciding the matter on merits. Respondent 1 and 2 filed
a miscellaneous appeal before the Hon’ble High Court. A learned single
Judge of the Chhattisgarh High Court set aside the order of the appellate
court and held that order dated 31-8-1996 of the trial court did not amount
to a decree and therefore the appeal by the appellant before the appellate
court was not maintainable As the order of the trial court was not a decree
nor an appealable order as provided in section 104 and Order XLIII Rule I
of the Code, only a revision would be a remedy against such an order and
not an appeal. The Hon’ble High Court after holding that the appeal was not
maintainable also considered the matter on merits and held that the trial
court was justified in dismissing the application under Order XXII Rule 3 of
the Code by holding that the will was not proved. The said order of the
Hon’ble High Court is challenged in this appeal by special leave.

The following questions arise for consideration before the Hon’ble Apex
Court: -.

i). Whether an order of the trial court rejecting an applicationfiled under

Order XXII Rule 3 of the Code, by a person claiming to be a legatee under
the will of the plaintiff and consequently dismissing the suit in the absence
of any legal heir, is an appellable decree?
ii). Whether the Hon’ble High Court was justifying in upholding the decision
of the trial court that the will was not proved and rejecting an application
under Order XXII Rule 3 of the Code?

After combined reading of the several provisions of Order-22 of the Code

the Court held with regard to the law of abatement as follows:-

a) When the sole plaintiff dies and the right to sue survives on an
application made in that behalf, the court shall cause the legal
representative of a daceased plaintiff to be brought on record and proceed
with the suit.

b) If the court holds that the right to sue does not survive on the death of
the plaintiff, the suit will abate under Order XXII Rule-1 of the Code.

c) Even where the right to sue survives, if no application is made for making
the legal representative a party to the suit, within the time limited by law
(that is, a period of 90 days from the date of the death of the plaintiff

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 86

prescnbed for makmg an application to make the legal representative a

party under Article 120 of Schedule to the Limitation Act, 1963), the suit
abates as provided under Order XXII Rule 3(2) of the Code.

d) Abatement occurs as a legal consequence of (i) court holding that right

to sue does not survive (a) no application being made by any legal
representative of the deceased plaintiff to come on record and continue the
suit. Abatement is not dependent upon any formal order of the co that the
suit has abated.

e) Even though a formal order declaring the abatement is not necessary

when the suit abates, as the proceedings in the suit is likely to linger and
will not be closed without a formal order of the court, the court is usually to
make an order recording that the suit has abated, or dismiss the suit by
reason of abatement under Order XXII of the Code.

f) Where a suit abates or where a suit is dismissed, any person claiming to

be the legal representative of the deceased plaintiff may apply for setting
aside the abatement or dismissal of the suit under Order XXII Rule 9(2) of
the Code. If sufficient cause is shown, the court will set aside the
abatement or dismissal. If however, such application is dismissed, the order
dismissing such an application is open to challenge in an appeal under
Order XLIII Rule 1(k) of the Code.

g) A person claiming to be the legal representative cannot make an

application under Rule 9(2) of Order XXII for sefting aside the abatement or
diiss, if he had already applied under Order XXII Rule 3 for being brought
on record within time and his application had been dismissed after an
enquiry under Rule 5 of Order XXII, on the ground that he is not legal
representative.

Judgment of Court on Question 1: After enumerating essentials of

decree, the court held that an order dismissing an application under Order
XXII Rule 3 after an enquiry under Rule 5 and consequently dismissing the
suit, is not a decree. The court observed that the applicant in an application
under Order XXII Rule 3 of the Code is not a party to the suit. An
application under Order XXII Rule 3 is by a non party requesting the court
to make him party as the legal representative of the deceased plaintiff,
necessarily unless the application under Order XXII Rule-3 is allowed and
the applicant is permitted to come on record as the legal representative of
the deceased he will continue to be a noil party to the suit. When such an
application by a non-party is dismissed after a determination of a question
whether is legal representative of the deceased plaintiff, there is no
adjudication determining the rights of the parties to the suit with regard to
all or any of the matters in controversy in the suit. It is determination of a
collateral issue as to whether the applicant, who is not a party, should be
permitted to come on record as the legal resentative of the deceased.

On Question II: The court held that the decision of the Hon’ble High Court
upholding the verdict of the trial court that the appellant has failed to prove
the execution of will, after holding that order of the trial court rejecting an
application under Order XXII Rule 2 is not a decree, is not correct and
accordingly the finding of the Hon’ble High Court that the will was not
proved and therefore, the appellant was not the legal representative of the
plaintiff is set aside.

88) Mithai Lal Dal Sanghar Singh & others Vs. Anabai Devram Kini
& others (AIR 2003 SC 4244, R.C. Lahoti and Ashok Bhan, JJ.) (held
as follows:
* On the lapse of 90 days from the date of death of a party, the abatement
takes place automatically, no separate order is required.
* The moment the party dies, the suit goes in suspended animation and if a
substitution is done within 90 days, suit will revive, otherwise, on the lapse
of 90 days it abates.
* In the case of a suit which is abated there can be an application for
setting aside the abatement. Such application will have implicit in itself also
a prayer for substitution i.e. if a court sets aside the abatement, it will also
substitute the LR even if no specific prayer has been made in this regard.
* If in a suit there are several plaintiff and due to the death of all of them,
the suit has abated, then even if one of their LRs applies for setting aside
and substitution and it is allowed, the suit will revive with respt to all the
plaintiffs if there rights were joint.
* Normally if a court has rejected the application for setting aside the
application, unless there is found an error apparent, the superior court will
not interfere in the findings.
* In the matter of abatement the court shall be strict whereas in the
matters of setting aside the court shall be liberal.)

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In the case of personal wrong

89) M Veerappa Vs. Evelyn Sequire (1988 SC) (held that in the cases
of a personal wrong for instance a breach of contract related to some
personal performance or a case of tort against a person, the damages can
be claimed by the individual concerned and until the quantum of damages
has been determined by the court it does not become a debt in the hands
of a plaintiff against the defendant and therefore in such cases if the
plaintiff dies, since there is no debt which he can claim, the right to claim
damages will not survive upon the legal heirs and similarly if defendant dies
the right to claim damages will not survive against his legal representatives.
However, if the trial court has passed the decree in favour of plaintiff and
defendant goes an appeal and thereafter the respondent died (original
plaintiff) then since the trial court has adjudicated the matter therefore, the
decreetal amount will survive upon the legal representatives of the
respondent against the appellant. Therefore, the appeal will not abate per
se rather only upon the non substitution of the legal representatives.}

Order XXXIII, Whether suit is Order XXXIII, Whether suit is barred by limitation when plaintiff file an
barred by limitation when application under Order XXXIII to sue as an indigent person but during
plaintiff file an application pendency of application limitation period for filing the said suit has expired
under Order XXXIII to sue as and then plaintiff withdraw the said application under order XXXIII and
an indigent person but during want to prceed a normal suit.
pendency of application
limitation period for filing the 90) Jugal Kishore Vs. Dhanno Devi (AIR 1973 SC 2508) (Held that
said suit has expired and then where before the formal disposal of the application under Order XXXIII to
plaintiff withdraw the said sue as an indigent person, the plaintiff offers to pay the court fee treating
application under order XXXIII the application as his plaint, or, the court agreeing to treat it as a plaint and
and want to prceed a normal enlarges the time for payment of court fees the application must be
suit. regarded as a plaint instituted on the day when the application was
presented.

Order XXXVII Rule 3 i.e. when 91) Mechalaec Engineers and Manufacturers Vs. Basic Equipment
leave to defend the suit is Corporation (AIR 1977 SC 577) (3 Judge Bench of the SC followed the
granted directions given by the Kiranmoyee case) Kiranmoyee Dassi Vs.
Chatteijee (AIR 1949 Cal 479) {the High Court of Calcutta laid down
the following principles relating to suits of a summary nature:
* If the defendant satisfies the court the he has a good defence to the
claim on its merits, the plaintiff is not entitled to leave to sign judgment and
the defendant is entitled to unconditional leave to defend.

* If the defendant raises a triable issue indicating that he has a fair or

bonafide or reasonable defence although not a positively good defence, the
plaintiff is not entitled to sign judgment and the defendant is entitled to
unconditional leave to defend.

* If the defendant discloses such facts as may be deemed sufficient to

entitle him to defend, that is to say, although the affidavit does not
positively and immediately make it clear that he has a defence yet, shows
such a state of facts as leads to the inference that at the trial of the action
he may be able to establish a defence to the plaintiffs claim, the plaintiff is
not entitled to judgment and the defendant is entitled to leave to defend
but in such a case the court may in its discretion impose conditions as to
the time or mode of trial but not as to the payment into court or furnishing
security

* If the defennt has no defence or the defence set up is illusory or sham or

practically moonshine then ordinarily the plainiff is entitled to leave to sign
judgment and the defendant is not entitled to leave to defend.

* If the defendant has no defence or the defence set up is illlusory or sham

or practically moonshine then although ordinarily the plaintiff is entitled to
leave to sign judgment, the court may protect the plaintiff by only allowing
the defence to proceed if the amount claimed is paid into court or otherwise
secured and give leave to the defendant on such condition and thereby
show mercy to the defendant by enabling him to try to prove a defence

Order XXX VIII Rule 5 i.e. the 92) Sardar Govindrao Mahadik Vs. Devi Sahai (AIR 1982 SC 989)
object behind attachment of {The sole object behind the order levying attachment before judgment is to
property before judgment give an assurance to the plaintiff that his decree if made would be satisfied.
It is a sort of a guarantee against decree becoming infructuous for want of
property available from which the plaintiff ansatisfythedecree.)

Temporary injunction i.e. Otder 93) Dorab Cawasji Warden Vs. Coomi Sorab Warden (AIR 1990 SC
XXXIX, a landmark case on 867, L.M. Sharma and Vs. Ramaswami, JJ.) {it was observed: “Object
temporary mandalory injunction of making an order regarding interim relief is to evolve a workable formula
to the extent called for by demands of situation keeping in mind the pros
and cons of the matter and striking a delicate balance between two
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 88

conflicting interests i.e. injuries and prejudice likely to be caused to plaintiff

if relief is refused and injury and prejudice likely to be caused to defendant
if the relief is granted. Underlying object of granting temporary injunction is
to maintain and preserve status quo at tho time of institution of
proceedings and ‘to prevent any change in it until the final determination of
suit.”

It was also observed:

The power to grant a temporary injunction is in discretion of court and
before granting the injunction the court must be satisfied about following
aspect:-

* Applicant must make a prima facie case in support of right claimed by

him. Court must be satisfied that there is a bonafide dispute raised by
applicant and there is probability of applicant being entitled to relief claimed
by him. So existence of prima facie right and infraction of such right is
condition precedent to grant temporary injunction.

* It is necessary to prevent irreparable loss or serious injury, which

normally cannot be compensated in terms of money.

* The balance of convenience is in favour of one seeking relief.

The court has observed following for granting temporary mandatory

injunction :
* Since it is a case of doing of a positive act by the defendant which may
result into losses to the defendant, the burden will be greater upon the
plaintiff. Therefore, a very cogent proof of prima face case, irreparable loss
and balance of convenience must be proved by the plaintiff.

* Temporary mandatory injunction can be passed in very rare cases and in

extremely compelling circumstances where injury to the plaintiff is
immediately pressing and is likely to result into great hardship to him.

* The court will also see that the defendant shall not made to suffer
irreparrably. However, even if the defendant has to suffer and the court
finds that if the suit is dismissed, the defendant can be compensated by
cost, the court in light of other circumstances may still grant temporary
mandatory injunction.

* Just because the defendant argues that the grant of mandatory injunction
will result into decreeing the suit, the court will not refuse to grant the
injunction order.

94) Colgate Pamolive (India) Ltd. Vs. Hindustan Lever Ltd. (AIR
1999 SC 3105, B.N. Kirpal and U.C. Baneije, JJ.) {the court laid down
certain conditions for granting the interlocutory injunction:
(i) Extent of damages being an adequate remedy;

(ii) Protect the plaintiffs interest for violation of his rights though however
having regard to the injury that may be suffered by the defendants by
reason therefor,

(iii) The Court while dealing with the matter ought not to ignore the factum
of strength of one party’s case being stronger than the others;

(iv) No fixed rules or notions ought to be had in the matter of grant of

injunction but on the facts and circumstances of each case - the relief being
kept flexible;

(v) The issue is to be looked from the point of view as to whether on reijisal
of the injunction the plaintiff would suffer irreparable loss and injury
keeping in view the strength of the parties’ case;

(vi) Balance of convenience or inconvenience ought to be considered as an

important requirement even if there is a serious question or prima facie
case in support of the grant,

(vii) Whether the grant or refusal of injunction will adversely affect the
interest of general public which can or cannot ha compepsated otherwise.

95) Gujarat Bottling Co. Ltd Vs. Coca-Cola Co. (AIR 1995 SC 2372)
{‘Para 43. The grant of an interlocutory injunction during the pendency of
legal proceedings is a matter requiring the exercise of discretion of the
Court. While exercising the discretion the Court applies the following tests -
(i) Whether the plaintiff has a prima facie case; (ii) Whether the balance of
convenience is in favour of the plaintiff; and (iii) Whether the plaintiff would
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 89

suffer an irreparable injury if his prayer for interlocutory injunction is

disallowed. The decision whether or not to grant an interlocutory injunction
has to be taken at a time when the existence of the legal right assailed by
the plaintiff and its alleged violation are both contested and uncertain and
remain uncertain till they are established at the trial on evidence Relief by
way of interlocutory injUction is granted to mitigate the risk of injustice to
the plaintiff dunng the penod before that uncertainty could be resolved The
*jcet of the interlocutory injunction is to protect the plaintiff aghast injury
by violation of his right for which he could not be adejuately compensated
in damages recoverable in the action if the uncertainty were resolved in his
favour at the trial. The need for such protection, has, however, to be
weighed against the corresponding need of the defendant to be protected
against injury resulting from his having been prevented from exercising his
own legal rights for which he could not be adequately compensated. The
Court must weigh one need against another and determine where the
“balance of convenience” lies.

96) Cotton Corporation of India Vs. United Industrial Bank Ltd

(AIR 1982 SC 1272) {held that The Court can in appropriate cases grant
temporary injunction in exercise of its inherent power in cases not covered
by Order 39, CPC. But while exercising this inherent power, the Court
should not overlook the statutory provision which clearly indicates that
injunction to restrain initiation of proceeding cannot be granted. Section
41(b) of SRA is one such provision. And it must be remembered that
inherent power of the Court cannot be invoked to nullify or stultify a
statutory provision. Thus, an injunction preventing a party from filing a suit
cannot be passed.}

97) Agriculture Produce Market Committee, Gondal and others Vs.

Girdharbhai Ramjibhai Chhaniyara and others (AIR] 997 SC 2674)
{held that temporaiy injunction can’t be obtained against a right which may
arise in future.}

98) Seema Arshad Zaheer and other Vs. Municipal Corporation of

Greater Mumbai and others [(2006) 5 SCC 282, SB. Sinha and R.V.
Raveendran, JJ.] {in the cases of demolition of building, the tilt of the
balance of convenience will always be in favour of the applicant as it is
implicit that a demolition of building will irreparable. However, if the
applicant is not able to prove a prima facie case then no matter what be the
extent of loss, injunction order will not be passed.}

99) Skyline Education Institute Pvt. Ltd Vs. S.L. Vaswani and anr
[AIR 2010 SC 3221, (2010) 2 SCC 142, Tarun Chatterjee, G.S.
Singhvi and B.S. Chauhan, decided on 05-01.2010.]

100) Narendra Kante and Anuradha Kante and others [(2010) 2

SCC 77, decided on 15-12-2009.]

Case on ex-parte injunction

201) A. Venkatasubbiah Naidu Vs. S Chellapan (AIR 2000 SC 3032)
{it is the duty of the party in favour of which an ex parte temporary
injunction has been granted to deliver to the opposite party, or to send to
him by registered to him immediately after the order granting an injunction
has been made, a copy of application for injunction together with a copy of
affidavit filed in support of the application; a copy of the plaint; and copies
of documents on which the applicant relies, and to file on the day on which
such injunction is granted or on the day immediately following the day, an
affidavit stating that the copies aforesaid have been so delivered or sent If
he fails to comply with the duties which he has to perform as required by
the proviso, he must take the risk. Non compliance with such requisites on
his part cannot be allowed to go without any consequence and enable him
to have only the advantage of it. The consequence for non compliance may
be that he cannot be allowed to take advantage of such order if the order is
not obeyed by the other party. A disobedient beneficiary of an order cannot
be heard to complain against any disobedience alleged against another
party

102) Morgan Stanley Vs. Kartick Das (1995 SC) {in case of exparte
injunction the party applying for injunction has to prove an urgent and
overwhelming necessity warranting that order ex-parte.}

Order XLI Rule 22, i.e. Cross 103) Superintending Engineer Vs. B. Subba Reddy (AIR 1999 SC
objection 1747) {The Court speaking through Wadhwa J., narrate the principles
governing cross objections as follows: “Appeal is a substantive right. It is a
creation of the statute. Right to appeal does not exist unless it is specifically
conferred. Cross-objection is like an appeal. It has all the trappings of an
appeal. It is filed in the form of memorandum and the provisions of R-1 of
O.-41 of the Code, so far as these relate to the form and contents of the
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 90

memorandum of appeal apply to cross-objection as well. Court-fee is

payable on cross-objection like that on the memorandum of appeal.
Provisions relating to appeals by indigent person also apply to cross-
objection. Even where the appeal is withdrawn or is dismissed for default,
cross-objection may nevertheless be heard and determined. Respondent
even though he has not appealed may support the decree on any other
ground but if wants to modify it, he has to file cross-objection to the decree
which objections he could have taken eailier by filing an appeal Time for
filing objection which is in the nature of appeal is extended by one month
after service of notice on him of the day fixed for hearing the appeal. This
time could also be extended by the Court like in appeal. Cross objection is
nothing but an appeal, a cross-appeal at that. It may be that the
respondent wanted to give quietus to whole litigation by his accepting the
judgment and decree or order even if it was partly against his interest.
When, however, the other party challenged the same by filing an appeal
statute gave the respondent a second chance to file an appeal by way of
cross-objection if he still felt aggrieved by the judgment and decree or
order.”}

Section 107 (1) (d) r/w Rule 27-29 of Order XLI i.e. Power of
Appellate Court to take additional evidence.

104) Shivajirao Nilangekar Patil Vs. Dr. Mahesh Madhav Gosavi

(AIR 1987 SC 294, 3 Judge Bench) {The basic principle of admission of
additionl evidence is that the person seeking the admission of additional
evidence should be able to establish that with the best efforts such
additional evidence could not have been adduced at the first instance.
Secondly the party affected by the admission of additional evidence should
have an opportunity to rebut suth additional evidence. Thirdly, that
additional evidence was relevant for the determination of the issue.)

105) Mahavir Prasad Vs. Naresh Chandra (AIR 2001 SC 134)

{Section 107, CPC enables an appellate Court to take additional evidence or
to require such other evidence to be taken subject to such conditions and
limitations as are prescribed under Order XLI, Rule 27, CPC. The Court is
not, however, bound under the circumstances mentioned under the rule to
permit additional evidence and the parties are not entitled, as of right, 10
the admission of such evidence and the matter is entirely in the discretion
of the Court, which is, of course, to be exercised judiciously and sparingly.
Order XLI, Rule 27, CPC envisages certain circumstances when additional
evidence can be adduced.
They are:
(i) the Court from whose decree the appeal is preferred has refused to
admit evidence which ought to have been admitted, or

(ii) the party seeking to produce additional evidence, establishes that

notwithstanding the exercise of due diligence, such evidence was not within
his lcnowledge or could not, after the exercise of due diligence, be
produced by him at the time when the decree appealed against wasjassed.
or

(iii) the appellate Court requires any document to be produced any witness
to be examined to enable it to pronounce judgment, for any other
substantial cause.

* The expression “to enable it to pronounce judgment” contemplates a

situation when the appellate Court finds itself unable to pronounce
judgment owing to a lacuna or defect in the evidence as it stand& The
ability to pronounce a judgment is to be understood as the ability to
pronounce a judgment satisfactory to the mind of Court delivering it. It is
only a lacuna in the evidence that will empower the Court to admit
additioflal evidence. But a mere difficulty in coming to a decision is not
sufficient for admission of evidence under this rule. The words “or for any
other substantial cause” must be read with the word “requires’ which is set
out at the commencement of the provison, so thai it is only where for any
other substantial cause, the appellate Court requires additional evidence,
that this rule would apply.}

Landmark cases on several Landmark cases on several points

points
106) Salem Advocate Bar Association, T.N. Vs. Union of India
[(2005) 6 SCC 344, 3 Judge Bench, Y.K. Sabharwal, D.M.
Dharmadhikari and Tarun Chatterjee, JJ.] {the court held as follows:

* Regarding Costs: When sec. 25(2) provides for costs to follow the
event, it is implicit that the costs have to be those which are reasonably
incurred by a successful party except in those cases where the court in it’s
discretion may direct otherwise by recording reasons therefor.
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 91

* Regarding notice u/s 80: The two months period mentioned ifl Sec SO
has been provided for so that the government shall examine the claim put
up in the notice and has sufficient time to send a suitable reply. The
underlying object is to curtail litigation.

* Requirement of affidavit: Requirement of affidavit has the effect of

fixing additional responsibility on the deponent as to truth of facts stated in
the pleading.

* Regarding extension of 90 days time period for filing of written

statement: The rule or procedure is handmaid of justice and not its
mistress. In construing the provision of 0 VIII R I and R 2, the doctrine of
harmonious construction is required to be applied. The effect would be that
under O-VIII R-10, the court in its discretion would have the power to allow
the defendant to file written statement even after expity of the period of 90
days as given in O-VIII R-1. The time can be extended in exceptional cases
where justice required the extension of time beyond 90 days from the
service of summon.

* Regarding adjournment: Para 30 of SCC: Held, it cannot be said that if

the circumstances are beyond the control of the party, after having
obtained the third adjournment, no further adjournment would be granted.

Few More Cases

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 92

THE HINDU & MUSLIM LAWS

Hindu Marriage Act, 1955

THE HINDU & MUSLIM LAWS

Hindu Marriage Act, 1955

List of Landmark Cases

Sr. Sections/Topics Related Cases

No. (Including Definitions etc.)
Caste marriage is not prohibited 1) Lata Singh Vs. State of U.P. (2006 SC, Markandey Katju,
J.) {The court held as follows:
* Secularism is limited not only to religion rather it is a way of life.
Anything in the society which goes against the spirit of fraternity will
be anti-secular. Caste divide in the society and the prohibition
against inter-caste marraige should be removed.
* HMA nowhere prohibits inter-caste marriage.
* It is the duty of the police to provide adequate protection to every
couple who is performing inter-caste mamage and inviting threat
from from some segment of the society.

Presumption regarding live-in- 2) Tulsa and others Vs Durghatia and others (2008 SC Arijit
relationship Pasayat J.) {The court has the power u/s 114 lEA to presume that
man and woman are lawfully married if there is an evidence of their
long cohabitation and also of the fact that they have been projecting
each other as husband and wife. Law tilts in favour of legitimacy of
marriage and long cohabitation is sufficient enough to raise that
presumption. However the court also held that if either party had an
existing spouse living then presumption of marriage can’t be held.

This case doesn’t legalise live-in-relationship, rather it only provides

for a presumption of marriage if there is long cohabitation.)

Registration of marriage 3) Seema Vs. Ashwani Kumar [(2006) 2 SCC 578] {in this
case the Hon’ble Supreme Court, while emphasizing the need for
‘Registration of Marriage’ in the country, gave directions to the
Central and State Governments in this regard. The court noted with
concern that in large number of cases, some unscrupulous persons
are denying the existence of marriage taking advantage of the
situation that in most of the states there is no official record of the
marriage. All the States and Union territories indicated their stand to
the effect that registration of marriage is highly desirable. It has’
been pointed out that compulsory registration of marriage would be
a step in the right direction for the prevention of child marriage still
prevalent in many parts of the country.)

Constitutional validity of section 1) T Sareetha Vs. Venkata Subbaiah (AIR 1983 AP HC 356)
9 {A single Judge of A.P. HC held that the remedy of restitution of
conjugal rights provided for by Sections 9 of the said Act was a
savage and barbarous remedy violating the right to privacy and
human dignity guaranteed by Article 21 of the Constitution. Hence,
according to the learned Judge, Section 9 was constitutionally void.
Any statutory provision that abridged the rights guaranteed by Part
Ill of the Constitution would have to be declared void in terms of
Article 13 of the Constitution. According to the said learned Judge,
Article 21 guaranteed right to life and personal liberty against the
State action. Formulated in simple negative terms, its range of
operation positively forbidding the State from depriving any person
of his life or personal liberty except according to the procedure
established by law was of far- reaching dimensions and of
overwhelming constitutional significance Learned Judge observed
that a decree for restitution of conjugal rights constituted the
grossest form ofviolation of any individual’s right to privacy
According to the learned Judge it denied the woman her free choice
whether, when and how her body was to become the vehicle for the
procreation of another human being A decree for restiution of
conjugal rights deprived according to the learned Judge, woman of
control over her choice as and when and by whom the various parts
of her body should be allowed to be sensed. The woman loses her
control over her most intimate decisions. The learned Judge
therefore was of the view that the right to privacy guaranteed by
Article 21 was flagrantly violated by a decree for restitution of
conjugal rights.

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 93

2) Saroj Rani Vs. Sudarshan Kumar Chadha (AIR 1984 SC

1562) {Held in Para 17 as follows: “It is significant to note that
unlike a decree of specific performance of contract, for restitution of
conjugal rights the sanction is provided by court where the
disobedience to such a decree is wilful i.e is deliberate inspite of the
opportunities and there are no other impediments might be
enforced by attachment of property So the only sanction is by
attachment of property against dis- obedience of a decree for
res6tution of conjugal rights where the disobedience follows as a
result of a wilful conduct i.e. where conditions are there for a wife or
a husband to obey the decree for restitution of conjugal rights but
disobeys the me inspite of such conditions, then only financial
sanction, provided he or she has properties to be attached, is
provided for. This is so as an inducement by the court in appropriate
case when the court has decreed restitution for conjugal rights and
that the court can only decree if there is no just reason for not
passing decree for restitution of conjugal rights to offer inducement
for the husband or wife to live together in order to give them an
opportunity to settle up the matter amicably.

It serves a social purpose as an aid to the prevention of break-up of

marriage. It cannot be viewed in the I manner the learned single
Judge of Andhra Pradesh High Court has viewed it and we are
therefore unable to accept the position that S. 9 of the said Act is
violative of Art 14 or Art. 21 of the Constitution f the purpose of the
decree for restitution of conjugal rights in the said Act is understood
in its proper perspective and if the method of its execution in cases
of disobedience is kept in view.

Void Marriage 3) M.M. Malhotra Vs. Union of India (2005 SC) (Held that
section 11 is only enabling provision and the nullity of marriage is
not dependent upon the obtainment of a decree under sec. 11. Such
a marriage shall be void ab initlo.

4) Ramesh Chandra Daga Vs. Rameshwari Daga (2005 SC)

{held that u/s 25 the permanent alimony and the maintenance is
awarded in all eases i.e. in the passing of all kind of decrees and not
only a divorce decree. Thus even if the decree is decree of voidness
of marriage the maintenance can be awarded upon an application.}

Can an injunction be obtained to 5) Shankarappa v Basamma (1964 Mysore HC) {held that perpetual
stop a bigamous marriage? injunction can be passed against a bigamous marriage.}

6) Chitra v Dhruv Jyoti (1998 CaI HC) {in the case the husband has
obtained a divorce decree against the wife against which the wife
had gone on appeal. In the meantime the husband wanted to marry
someone. The court has issue an injunction till the disposal of the
appeal.)

7) Pratiksha v Praveen Dinkar Tapaswi (2002 M.P HC) {held that an

injunction to restarin a bigamous marriage would be equitable and it
can be passed even under SRA }

8) Sivanandi v Bhagvathyamma (AIR 1962 Mad 400) {it was held

that a marriage under Hindu law by a minor male is valid even
through no consent of the parents/guardians was obtained. The
marriage under the Hindu law is not a contract it is a sanskars.
9inorian t enter Into a contract but he can perform necessary *saii.
According to the doctrine of factum valet ‘a fact cannot be altered
by hundred texts’ or ‘what ought not to be done becomes valid
when done’.

9) Russel Vs. Russet (1897) {cruelty defined as “conduct of such a

character as to have cause danger to life, limb or health, bodily or
mental, or as to give rise to a reasonable apprehension of such
danger.”}

10) N.G. Dastane Vs. S. Dastane (AIR 1975 SC 1534) {the concept
of mental cruelty was propounded in this case. The court held that
Mental cruelty is very cruelty may be physical or mental. important
aspect of legal cruelty.}

11) Sirajmohmed-khan Janmohamadkhan Vs. Hafizunnisa Yasin-

khan (AIR 1981 SC 1972) {Court stated that the concept of legal
cruelty changes according to the changes and advancement of
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 94

social concept and standards of living. With the advancement of our

social conceptions, this feature has obtained legislative recognition,
that a second marriage is a sufficient ground for separate residen&
and maintenance. Moreover, to establish legal cruelty, it is not
necessary that physical violence should be used. Continuous ill-
treatment, cessation of marital intercourse, studied

12) Shoba Rani Vs. Madhukar Reddi (AIR 1988 SC 121)

{Court had an occasion to examine the concept of cruelty. The word
‘cruelty’ has not been defined in the Hindu Marriage Act. It has been
used in Section 130) (i-a) of the Act in the context conduct or
behaviour in relation to or in respect of matrimonial duties or
obligations It is a course of conduct of one Which is adverseIy
affecting the other.

The cruelty may be mental or physical intentional or unintentional. If

it is physical, it is a question of fact and degree. If it is mental, the
enquiry must begin as to the nature of the cruel treatment and then
as to the impact of such treatment on the mind of the spouse.
Whether it caused reasonable apprehension that it would be harmful
or injurious to live with the other ultimately, is a matter of inference
to be drawn by taking into account the nature of the conduct and its
effect on the complaining spouse. There may, however be cases
where the conduct complained bad enough and per se unlawful or
illegal. Then the impact or the injurious effect on the other spouse
need not to be enquired into or considered. In such cases the
cruelty will be established if the conduct itself is proved or admitted.
The absence of lntention should not make any difference In the
case by ordinary sense in human affairs the act complained of could
otherwise be regarded as cruelty. Intention is not a necessary
Element in cruelty. The relief to the part cannot be denied on the
ground that there has been no deliberate or wilful ill treatment)

13) Vs. Ehagat Vs. D. Bhagat [(1994) I SCC 337] {The SC has
explained the concept of mental cruelty as follows:
“Mental cruelty in Section 13(1) (i-a) can broadly be defined as that
conduct which inflicts upon the other party such mental pain and
suffering as would make it not possible for that party to live with the
other. In other words, mental cruelty must be of such a nature that
the parties cannot reasonably be expected to live togethen The
situation must be such that the wronged party cannot reasonably be
asked to put up with such conduct and continue to live with the
other party. It is not necessary to prove that the mental cruelty is
such as to cause injury to the health of the petitioner. While arriving
at such conclusion, regard must be had to the social status,
educational level of the parties, the society they move in, the
possibility or otherwise of the parties ever living together in case
they are already living apart and all other relevant facts and
circumstances which it is neither possible nor desirable to set out
exhaustively. What is cruelty in one case may not amount to cruelty
in another case. It is a matter to be decided in each case having
regard to the facts and circumstances of that case. If it is a case of
accusations and allegations, regard must also be had to the context
in which they made

14) Savitri Pandey Vs. Prem Chandra Pandey [(2002) 2 SCC

73] {held that mental cruelty is the conduct of other spouse which
causes mental suffering or fear to the matrimonial life of the other.
“Cruelty”, therefore, postulates a treatment of the petitioner with
such behaviour as to cause a reasonable apprehension in his or her
mind that it would be harmful or injurious for the petitioner to live
with the other party. Cruelty, however, has to be distinguished from
the ordinary wear and tear of family life. It cannot be decided on
the basis of the sensitivity of the petitioner and has to be adjudged
on the basis of the course of conduct which would, in general, be
dangerous for a spouse to live with the other.)

15) Parveen Mehta Vs. lnderjit Mehta [(2002) 5 SCC 706]

{The Court explained the concept of cruelty as follows:

‘Cruelty for the purpose of’ Section 13(1) (i-a) is to be taken as a

behaviour by one spouse towards the other, which causes
reasonable apprehension in the mind of the latter that it is not safe
for him or her to continue the matrimonial relationship with the
other. Mental cruelty is a state of mind and feeling with one of the
spouses due to the behaviour or behavioural pattern by the other.
Unlike the case of physical cruelty, mental cruelty is difficult to
establish by direct evidence. It is necessarily a matter of inference
to be drawn from the facts ann circumstances of the case. A feeling
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of anguish, disappointment and frustration in one spouse caused by

the conduct of the other can only be appreciated on assessing the
atending facts and circumstances in which the two partners of
matrimonial life have been living. The inference has to be drawn
from the attending facts and circumstances taken cumulatively. In
case of mental cruelty it will not be a correct approach to take an
instance of misbehaviour in isolation and then pose the question
whether such behaviour is sufficient by itself to cause mental
cruelty. The approach should be to take the cumulative effect of the
facts and circumstances emerging from the evidence on record and
then draw a fair inference whether the petitioner in the divorce
petition has been subject to mental cruelty due to conduct of the
other.”

16) Maya Devi Vs. Jagdish Prasad (2007 SC) {wife was quarrelsome.
The couple had 3 children. She once threatened to kill the children
and one day she kills them and thereafter she had been convicted.
Husband filed a petition for divorce on the ground of cruelty. The
court held that killing one’s own children is amounting to grave
cruelty to other spouse. Divorce was granted.)

Persistant refusal to have intercourse or Impotency of husband,

amounts to cruelty:

17) Rita Vs. Balkishan Nijhawan (AIR 1973 DeL 200) {“the law is
very settled that if either of the parties to marriage being healthy
and having physical capacity refuses to have sexual intercourse the
same would amount to cruelty entitling other to a decree. In our
view it would make no difference whther denial of intercourse is
result of sexual weakness of respondent disabling him from having
sexual union with the applicant or it is because of any wilful refusal
by respondent.”}

18) Siraj Mohd. Khan Vs. Hafizu Nissa (AIR 1981 SC 1972) {held
that a wife is entitled to decree of divorce on the round that her
husband has become impotent and is unable to have marital
intercourse with her.}

19) Vishnu Dutt Sharma Vs. Manju Sharma [(2009) 6 SCC

379, Markandey Katju and V S Sirpurkar, JJ] {this case is a
perfect example ef portraying arrogance of Judge. There are cases
decided by three judge bench that Supreme court under 142 of the
Constitution can grant divorce on the ground of irretrievable
breakdown of marriage but in this case the 2 judge bench has
refused to abided by the decision of larger bench and many other
coequal strength and observed as follows:
Para 11: Learned counsel for the appellant has stated that this court
in some cases has dissolved a marriage on the ground of
irretrievable breakdown. In our opinion those cases have not taken
into consideration the legal position which we have mentioned
above and hence they are not precedents. A mere direction of the
court without considering the legal position is not a precedent.

Para 12’ If we grant divorce on the ground of irretrievable

braekdown of marriage, then we shall by judicial verdict be adding a
clause to section 13 of the Act to the effect that irretrievable
breakdown of maniage is also a ground for divorce, In our opinion
this can only be done by Legislature and not by the court his for
Parliament to enact or amend the law and not for the courts. Hence,
we do not find force in the submission of the learned counsel for the
appellant.

Pan 13: “Had both the parties been willing we could, of course, have
granted a divorce by mutual consent as contemplated in section
138, but in this case as respondent is not willing to divorce, it can’t
be grantet”
Note: In following three cases, three judge bench of Supreme Court
ens granted divorce on the ground of irretrievable breakdown of
marriage:

+ Naveen Kohli Vs. Neelu Kohli [(2006)4 SCC 5581

+ A. Jayachandra Vs. Aneel Kaur [(2005) 2 SCC 22]
+ Samar Ghosh Vs. Jaya Ghosh [(2007)4 SCC 511]

Apart from these cases, nine two judge benches have granted
divorce on the ground of irretrievable breakdown of marriage:

+ Satish Sitole Vs. Ganga [(2008)7 SCC 734]

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+ Sanghmitra Ghosh Vs. Kajal Kumar Ghosh [(2007) 2 5CC220]

+ Sujata Uday Patil Vs. Uday Madhukar Patil [(2006) 13 SCC 272]
+ Manjula Vs. K.R. Mahesh [(2006)5 SCC 464]
+ Vinita Saxena Vs. Pankaj Pandit [(2006)3 SCC 778)
+ Durga Prasanna Tripathy Vs. Arundhati Tripathy [(2005) 7 SCC
353}
+ Parveen Mehta Vs. Indeijit Mehta[(2002) 5 SCC 706]
+ Ashok Harra Vs. Rupa Bipin Zaveri[(1997) 4 SCC 226]
+ Vs. Bhagat Vs. D. Bhagat[(l994) 1 SCC 337]

Note 71st and 217 Law Commission Report has recommended the
amendment in Hindu Marriage Act to incorporate ‘irretrievable
breakdown of marriage as a ground of divorce.

Whenever the question of inclusion of irretrievable breakdown of

marriage as a ground divorce is mooted the opponents argue that
divorce by mutual consent” inroduced in the Hindu Marriage Act in
1976 more than covers the situation. It is important to note that
mutual consent requires consent of both the parties and if one or
the other does not cooperate the said ground is not available
Irretnevable breakdown of marriage on the other hand is a ground
which the court can examine and if the court, on the facts of the
case comes to the conclusion that the marrige cannot be
repaired/saved divorce can be granted The grant of divorce is not
dependent upon the volition of the parties but on the court coming
to the conclusion on the facts pleaded that the marriage has
irretrievably broken down.
217°’ Law Commission Report (Pam I 1)

20)Naveen Kohli Vs. Neelu Kohli (AIR 2006 SC 1675) (SC has
recommended to the Union Government to seriously consider
bringing an amendment in the Hindu Marriage Act, 1955 to
incorporate irretrievable breakdown of marriage as a ground of
divorce.
Note: Law Commission of India in its 217°’ Report in 2006 stated
that Naveen Kobli Vs. Neelu Kohli is a classic case of consent being
withheld by a spousejust for harassing the other spouse.

21) Jordan Diengdeh Vs. 5.5. Chopra (AIR 1985 SC 935) {The SC in
this case also emphasizes the ‘irretrievable breakdown of marriage’
as ground of divorce.)

22) Geeta Mullick Vs. Bmjo Gopal Mullick (AIR 2003 Cal 321) (held
that in our considered opinion, the marriage between the parties
cannot be dissolved by the trial court or even by the Hon’ble High
Court on the ground of irfetrievable breakdown of marriage in the
absence of the specific provision in the Hindu Marriage Act, 1955.)

23) Kanchan Devi Vs. Pramod Kumar Mittal (AIR 1996 Sc 3192)
{The SC held that the marriage between appellant and the
respondent has irretrievably broken down and that there was no
possibility of reconciliation, we in the exercise of our power under
Article 142 of the Constitution of India direct that the marriage
between the appellant and the respondent shall stand dissolved by a
decree of divorce,

24) Krishna v.Som (1996 P&H) {There is no use of keeping two

person tied by the matrimonial relation when they cannot live
peacefully Where wedlock has become a deadlocK since parties are
living separately and after marriage theb wife has lived only few
months in the matnmonial home, wife having made allegation of
cruelty and desertion agaqt të husband and husband made the
counter aflton against her, held that the marriage between them
has irretrievably boken down beyond repair and in the interest of
justice their marriage should be dissolved by the decree of divorce.}

25) Vinita Saxena Vs. Pankaj Pandit (20006 SC) {Speaking through
AR Lakshmanan the Court vindicated irretrievable breakdown of
marriage as a ground of divorce.}

26) Samar Ghosh Vs. Jaya Ghosh [(2007)4 SCC 511) {the court
referred to the 71st Law Commission Report regarding irretrievable
brkdown of marriage.}

27 Sabamaita Ghosh v Kajal Kumar Ghosh (2007 SC) {the court in

this case also referred to the 71 ‘ Law commission Report

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 97

28) Bipinchandra Vs. Prabhavati (AIR 1957 SC 176) {where the

respondent leaves the matrimonial home with an intention to desert
but subsequently shows an inclination to return and is prevented
from doing so by the petitioner, the respondent is not guilty of
desertion. To constitute desertion it is necessary to prove that the
deserting spouse persisted in the intention to desert throughout the
statutory period of two years.

The court held five elements must be proved for obtaining divorce
on the ground of desertion:

+ The factum of separation

+ Animus dessidendi i.e. intention to desert
+ Desertion should be without any reasonable cause.
+ Desertion should be consent of other party
+ Statutory period of two years.)

29) Lachman Vs. Meena (AIR 1964 SC 40) {in its essence desertion
means the intentional permanent forsaking and abandonment of
one spouse by the other without that other’s consent, and without
reasonable cause. For the offence of desertion so far as the
deserting spouse is concerned, two essential conditions must be
there (I) the factum of separation, and (2) the intention to bring
cohabita ion permanently to an end (animusdeserendi). Sirnilarly
two elements are essential so far as the deserted spouse is
concerned: (1) the absence of consent, and (2) absence of conduct
giving reasonable cause to the spouse leaving the matrimonial home
to form the necessary intention aforesaid. For holding desertion as
proved the inference may be drawn from certain facts which may
not in another case be capable of leading to the same inference,
that is to say the facts have to be viewed as to the purpose which is
revealed by those acts or by conduct and expression of intention,
both anterior and subsequent to the actual acts of separation.}

Intention to desert not 30) Jyotish Chandra Vs. Meera (AIR 1970 C420 {it is not necessary
necessarily precede the factum that intention must precede the factum. Thus where a spouse
leaves the home with no intention to abandon it, but later on, he
forms an intention not to return consequently he failed to return,
then it will amount to desertion.}

Constitutional validity of section 31) Parayankendiyal Eravath Kenapravan Kallaini Amma Vs. K. Devi
16(3) [(1996)4 SCC 76] {The Court upheld the Constitutional validity of
section 16(3) of IIMA and observed that HMA intends to bring about
social reforms and further held that conferment of social status of
legitimacy on innocent children is the obvious purpose Section 16.}

Section 16 (3) i.e whether the 32) Jinia Keotin Vs. Kumar Sitaram Manjhi [(2003) 1 SCC 730] {Held
children born out of void or that children born out of void or voidable marriage not entitled to
voidable marriage are entitled to claim inheritance in ancestral property but only entitled to claim
ancestral property or not inheritance in self acquired property of the parents.}

33) Neelamma v Sarojamma [(2006) 9 8CC 6121 {Jinia Keotin is

followed }

34) Bharatha Matha Vs. R. Vijaya Renganathan [(2010) II 8CC 483]

{Jinia Keotin and Neelamma case is followed.

35) Revanasiddappa and Mallikaijun [(2011) II 8CC 1. G.S. Singhavi

and AK. Ganguly, iJJ{In this case the Hon’ble Supreme Court
speaking through AK. Ganguly, 3., has refused to accept the
interpretation of Section 16(3) of the Hindu Marriage Act 1955 as
laid down in Jinia Keotin and followed by Neelamma and Bharatha
Matha cases. The court observed that the legislature has used the
term “property’ in section 16(3) and is silent on whether such
property is meant to be ancestral or self acquired. The court
observed that by virtue of section 160) and (2) legitimacy has been
conferred on the children born out of void and voidable marriages
within the meaning of section 11 and 12 of the HMA. If they have
been declared legitimate, then they cannot be discriminated against,
and they will be on par with the legitimate children and be entitled
to all rights in the property of parents, both self acquired and
ancestral. The prohibition contained in section 16(3) will apply to
such children with respect to property of any person other than their
parents.}

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 98

The Hindu Succession Act, 1956

The Hindu Succession (Amendment) Bill was introduced in the

Parliament on 20 December 2004 and passed by the 4 Rajya Sabha
on 16 August 2005 and the Lok Sabha on 29 August 2005
respectively. Based on the recommendations of the 174° Report of
the law Commission on ‘Property Rights of Women-Proposed
Reforms Under Hindu Law’, its primary aim was to remove gender
inequalities under the Act, as it stood before the amendment. The
amendment I have also become necessary in view of the changes in
Hindu Succession Act 1956 in five Jndian States namely, Kerela,
Andhra Pradesh, Tamil Nadu, Kamataka and Maharashtra. The Bill
received the President’s assent on 5 September 2005 and it came
into force on 9° September 2005.

Primary changes introduced by the Act:

1) Deletion of section 4(2) i e deletion of provisions exempting
application of thp 4ct to agricultural holdings
2) Abolition of doctrine of survivorship
3) Introduction of daughters as coparcener
4) Marital status of daughter
5) Property held by daughter with incidents of coparcenery property
6) Retention of the concept of notional partition -
7) Calculation of shares while affecting a notional partition
8) Devolutlon of coparceneiy interest held by a female
9) Separation of son during life time of father
10) Abolition of pious obligation of son to pay the debts of father
11) Abolition of special rules relating to dwelling house
12) Deletion of section 24
13) Eligibility of female coparceners to make a testamentary
disposition
14) Introduction of four new heirs In Class 1 category i.e. (I) son of
a pre deceased daughter of a pre deceased daughter {daughter s
daughter s son) (2) daughter of a pre deceased daughter of a pre-
deceased daughter {daughter’s daughter’s daughter’s}, (3)
daughtérs of a pre-deceased son of a pre-deceased daughter
{daughter’s son’s daughter) and (4) daughter of pre-deceased
daughter of a pre-deceased son {son’s daughter’s daughter). All
these four heirs are still there in Class II also.

Notional partition sec 6(3) 36) Gurupad Khandappa Magdurn Vs. Hirabai Khandappa Magdum
and others [(1978) 3 SCC 383, 3 Judge Bench...Judgment delivered
by Chandrachud J.J {the husband of the plaintiff died in 1960
leaving his wife (the plaintiff), two sons and three daughters. The
plaintiff filed the suit claiming 7/24 share of the property of the
family on the basis that u/s 6 and its explanation if a partition took
place during husband’s life term she would have got a ‘4 share and
her husband’s 1/4 share, after his death would devolve on 6 shares,
that is, she would have got 1/24 share and adding her ‘/4 share to
1/24 she would be entitled to 7/24. The trial court limited her share
only to 1/24 but the Hon’ble High Court, on appeal, decreed her
claim to 7/24 share.

Dismissing the appeal by one of the sons, the SC held:

There is no justification for limiting the plaintiffs share to 1/24°

ignoring the 1/4° share she would have obtained had there been a
partition during the husband’s life time. In order to ascertain the
share of the deceased in the coparcenary property, the explanation
provides a fictional expedient namey that his share shall be deemed
to be the share in the property that would have been allotted to him
if a partition had taken place immediately before his death.

+ All the consequences which flow from a real partition have to be

logically worked out, which means that the share of the heirs must
be ascertained on the basis that they had separated from one
another and had received a share in the partition which had taken
place during the life time of the deceased. The allotment of this
share is not a processual step devised merely for thè purpose of
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 99

working out some other conclusion. It has to be treated and

accepted as a concrete reality, something that cannot be recalled
just as a share allotted to a coparcener in an actual partition cannot
generally recalled. The inevitable corollary of this position is that the
heir will get his or her share in the interest which the deceased had
in the coparcenary property at the time of his death in addition to
the share which he or she received or must be deemed to have
recived in the notional partition

37) State of Maharashtra Vs. Narayan Rao Sham Rao Desmukh and
others [(1985) 2 SCC 321, 3 Judge Bench...Judgment delivered by
Venkataramiah J] {held as follows:

The right of a female heir to the interest inherited by her in the

family property gets fixed on the death of a male member but she
cannot be treated as having ceased to be a member of the family
without her volition as otherwise it will lead to strange result.

The joint and undivided family is the normal condition of a Flmdu

society An undivided Hindu family is ordinarily joint not only in
estate but in food and worship but it is not necessary that a joint
family should own joint property. There can be ajoint family without
a joint family property.

+ A joint family may consist of female members. It may consist of a

male member, his wife, his mother and his unmarried daughters.
The property ofajoint family does not cease to belong to a family
merely because there is only a single male member in the family.

38) Anar Devi and others Vs. Paimeshwari Devi and others [(2006) 8
SCC 656] {the court followed the interpretation of notional partition
as explained in the Magdum case.

Section 14 HAS i.e.limited interst enlarged into unlimited interest

39) Vs. Tulsamma Vs. Sesha Reddy (1977 SC) {the court culled out
the following principles:
+ That the provisions of the section 14 HAS must be liberally
construed in order to advance the object of the Act which is to
enlarge the limited interest possessed by a Hindu widow which was
in consonance with the changing temper of the times

It is manifestly clear that sustion(2)of section 14 does not refer to

any transfer which merely recognizes a pre-existing right without
creating or conferring a new title on the widow.

That the Act of 1956 has made revolutionary and far reaching
changes in the Hindu society and every attempt should be made to
carry out the spirit of the Act.

That sub-section (2) of section 14 is merely a proviso to sub-section

(I) and has to be interpreted as a proviso and not in a manner so as
to destroy the effect of the main provision.

For application of 14(2), following three conditions must be

satisfied:

That the property must have been acquired by way of gift, will,
instrumcnt, decree, order of the court or by an award;

That any of these documents executed in favour of a Hindu female

must prescribe a restricted estate in such property; and

That the instrument must create or confer a new right, title or

interest on the Hindu female and not merely recognize or give effect
to a pro-existing right which the female Hindu already possessed.

Note: read more points propounded in this case,.,..

40) Sharad Subramanyam v Soum, Mazumdar [(2006) 8 SCC 91]

[Division Bench, Judgment delivered by B N Snknshna] {the court
relied on Tulsamma case.}

41) Bhagat Singh v Teja Singh FAIR 1999 SC 1944 (1999) 4 SCC 86]
{The Court held as follow On perusal of the two sub sections we
find that their spheres are very clearly marked out. So far sub-
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 100

section (I) it covers the properties of a female Hindu dying intestate.

Sub-section (2) starts with the words ‘Notwithstanding anything
contained in sub-section (I)’. In other words, what falls within the
sphere of sub-section (2), sub-section (I) will not apply. We find
that Section 15(2) (a) uses the words any property mhented by a
female Hindu from her father or mother? Thus prope inherited by a
female Hindu from her father and mother is carved out from a
female Hindu dying intestate. In other words any property of female
Hindu, if inherited by her from her father or mother would not fall
under sub-section (I) of Section 15. Thus, property of a female
Hindu can be classed under two heads’: Every property of a female
Hindu dying intestate is a general class by itself covering all the
properties but sub-section (2) erclude.s out of the aforesaid
properties th’e property inherited by her from her father or mother.)

42) Bhagat Ram Vs. Teja Singh (AIR 2001 SC I) {While interpreting
sub-section (2) of section 15 the court obsed as llows: ‘The

Intent of the Legislature is clear that the property, if originally

belonged to the parents of the deceased female, should go to the
legal heirs of the father. So also under clause (b) of sub-section (2)
of section 15, the property inherited by a female Hindu from her
husband or her father in law, shall also under similar circumstances,
devolve upon the heirs of the husband. It is the source from which
the property was inherited by the female, which is more important
for the purpose of her devoiution of her property The fact that a
female Hindu originally had a limited right and later acquired the full
right, in any way, would not alter the rules of succession given in
sub-section (2) of section 15.”)

43) Omprakash and others v Radhacharan and others [(2009) 15

SCC 66] {Facts of the case In 1955 Jarayaiqyi married Deendayal
Sharma who died within three months Soon she was driven out of
her matrimonial home After that she never stayed in her
matrimonial home At her parental home Smt Narayani was given
education. She got an employment She died on 11-07-I996 She had
various bank accounts she left huge sum also in her provident fund
account After her death her mother filed an application for
succession certificate A similar application was also filed by the
sister of her deceased husband.

The Hon’ble Supreme Court held that section 15(I) lays down the
ordinary rule of succession. Sub-section (2) only carved out an
exception to Section 15(1) It observed that a law is silent on a
Hindu’ woman’s self acquired property, and such property cannot be
considered as property inherited from her parents The court said
“This is a hard case.But then only because a case appears to be
hard would not lead us to invoke different interpretation of a
statutory provision which is otherwise impèrrnissible. It is now a well
settled principle of law i/jot sentiment or sympathy alone would not
be a guiding factor in determining the rights of parties which are
otherwise clear and unambiguous.”

Thus the court gave the judgment against the mother of Narayani
Devi and held that property shall go to the sister of her deceased
husband.

Section 25 ng27 44) Vellikannu v R. Singaperumal [(2005) 6 SCC 622] {held that
held that if murderer is disqualified to inherit the property of the
deceased then his descendents will also not eligible for inheritance
The court observed that a murderer should not be regarded as the
stock of fresh line of descendents.

45) (litha Hariharan Vs. Reserve Bank of India (AIR 1999 Sc 1149)
{held that the word ‘after’ need not necessarily mean after the
lifetime of father. In context of sec. 6(a) it means ‘in absence of’
and refers to the father’s absence from the care of the minor’s
property or peron for any reason whatsoever. Supreme court further
held that in following circumstances the father can be considered
absent and mother being a recognized natural guardian can act
validly on behalf of minor as guardian:
+ If father is wholly indifferent to the matters of the minor.
+ If the mother is put exclusively in charge of the minor by virtue of
mutual understanding of the parties.
+ If father is physically unable to take care of minor.)

46) Kumar Jahagirdar v Chetna (2001 SC) {held that while awarding
custody of a child to anyone, the only touchstone is interest and
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 101

welfare of child and nothing else, convenience and pleasure of the

parents is totally imniaterial}

47) Gaurav NagpaI v Sumedha NagpaI (2008 SC) (held that in

determining the question as to who should it given custody of a
minor child, the paramount consideraon is the welfare of the child
and not rights of the parents under a statute for the tune being in
force }

48) Smt Anhali Kapoor v Rajiv Baijal (2009 SC) {held that right of
natural guardian (father) is not absolute. Paramount consideration
for deciding the costody is welfare of child

49) Basavarjappá v Gurubasamma [(2005) 12 8CC 2901 {held that

on adoption, adaptec gets transplanted in adoptive family with the
same rights as that of natural born son. Adopted child becomes
dcener in joint Hindu Family after severing all his ties with natural
family.)

50) Simbat v Ramehandra [(1969) 2 SCC 544] (In Sftabai case the
Court held at SCC 549 550 Pam S It is clear on a reading of the
main part of section 12 and sub section (vi) of Section II that the
effect of adoption under the Act is that it brings about severance of
all ties of the child given in adoption in the family of his or her birth.
The child altogether ceases to have any ties with the family of his
birth. Conespondingly these very ties are automatically replaced by
those created by adoption in the adoptive family. The legal effect of
giving the child in adoption must therefore be to transfer the child
from the family of its birth to the family of its adoptiorn The result
is, as mention in section 140) namely where a wife is living,
adoption by the husband results in adoption of the child by both
these spouses; the child is not only the child of adoptive father but
also of the adoptive mother. In case there being two wives, the
child becomes the adoptive child of senior most wife in marriage,
the junior wife becoming the step mother of the adoptive child.
Even when a widower or bachelor adopts a child, and he gets
married subsequently to the adoption, his wife becomes the step
mother of the adopted child. When a widow or unmarried woman
adopts a child, any person she marries subsequently to adoption
becomes the step father of the adopted child. The scheme of
sections II and 12, therefore, is that in the case of adoption by a
widow the adopted child becomes absorbed in the optive family to
which the widow belonged. in other Provison (b) of section 12
“property which vested in the property”

fleeeased husband of the widow who 14is adopted will be adoptive

father word the child adopted is tied with the relationship of sonship
with the deceased husband of the widow. The other collateral
relations of the husband would be connected with the child through
the deceased husband of the widow. For instance, the husband’s
brother would necessarily be the uncle of the adopted child. The
daughter of the adoptive mother (and father) would necessarily be
the sister of the adopted son, and ia this way, the adopted son
would become the member of the widow‘s family. with the ties of
relationship with the deceased husband of the widow as his
adoptive father It is true that section 14 of the Act does not
expressly state that the child adopted—by the widow becomes the
adopted son of the widow. But it is necessary implication of sections
12 and 14 of the Act that a son adopted by the widow becomes, a
son not only of the widow but also of the deceased husband. It is of
this reason that we find in sub section (4) of section 14 a provision
that where a widow adopts a child and subsecuently marries a
husband the husband become the step father of the adopted child
The true effect and interpretation of section II and 12 of the Hindu
Adoption and Maintenance ActJ56 therefore Wthat when either of
the spouses adopts a child, all the ties of the child In the family of
his or her birth become completely served and these are all replaced
by those ateby the adoption jn the adoptive family. In other words
the result of adoption by either spouse is that the adoptive child
become the child of both the spouses

51) Devgonda Raygonda Patil v Shamgonda Raygonda Patil and

another(AIR 1992 Bombay 189) {lf there is co parcenary orjornt
fmily in existence in the fnmily of birth on date of adoption then the
adoptee cannot be said to have any vested property The property
does not vest and therefore provision of S 12 Pioviso (b) is not
attracted. In the context of S. 12, Proviso (6) vested property’

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 102

means where indefeasible right is created i.e. on no contingency it

can be defeated in respect of particular property. In other words
where full ownership is conferred in respect of a particular property.
But this is not the position in case of copareenary property. The co-
parcenary property is not owned by a coparcener and never any
particular property. All the properties vest in the joint and are held
by it.

52) Sawan Ram Vs. Kalawati (AIR 1967 SC 1761) {as per sec. 8 of
the Act a widow can adopt to herself but cannot adopt to her
deceased husband, but SC has taken the view in this case that
deceased husband of the widow is the adoptive father of the child.

53) Sitabai Vs. R.amchandra (AIR 1970 SC 343) {even in this case
the SC supported the court’s decision of Sawan Ram case and held
that “when a widow or unmarried woman adopts a child, any
husband she marries subsequent to adoption becomes the step
father of the adopted child. The scheme of secs. II and 12,
therefore, is that in the case of adoption by a widow the adopted
child becomes absorbed in the adoptive family to which the widow
belonged. In other words the child adopted is tied with the
relationship of sonship with the deceased husband of the widow and
other collateral relations of the husband”.) widow belonged. In other
words the child adopted is tied with the relationship of sonship with
the deceased husband of the widow and other collateral relations of
the husband”.)

HINDU JOINT FAMILY AND 54) Raghubanchmani Vs. Ambika Prasad (AIR 1971 SC 776) {held
COPARCENARY
that I may be taken to be a well settled law that alienation by the
karta without legal necessity or benefit of estate or in discharge of
Karta’s power of alienation
indispensable duty is not void but merely voidable at the instance of
any coparcener.

55) Rani Vs. Shanta (AIR 1971 SC 1028) held that for legal)
necessity actual compelling necessity is not the sole but pressure
upon the estate which in law may be regarded as serious and
sufficient}

56) Balmukund Vs. Kamlawati (AIR 1964 SC 1385) {held that the
karta, as ‘prudent manager ‘ can do all those things which are in
furtherance of family’s advancement or to prevent probable losses,
provided his acts ate not purely of a speculative or visionary
character.}

Rights of the coparcener 57) Sunil Kumar Vs. Ram Prakash [(1988) 2 SCC 77, AIR 1988 SC!
576) {In this case, the issue was whether a suit for permanent
injunction by a coparcener against the father for restraining him
from alienating the house property belonging to the joint Hindu
family for legal necessity was maintainable The court held that in á
suit for permanent injunction under section 38 of the Specific Relief
Act by a coparcener against the Father or Manager of the Joint
Hindu Family property, an injunction cannot be granted as The
coparcener ha got equally efficacious remedy to get the sale set
aside and recover possession of the property. Thus, a suit for
permanent injunction by a coparcener against the father for
restraining him from alienating the house property belonging to the
Joint Hindu Family for legal necessity is not maintainable.

58) Subodh Kumar and others Vs. Bhagwant Nandeo Rao Mehta &
others (2007 SC) {held as follows:
+ Coparcenars of joint family have a right to get any void alienation
of joint family property by the karta set aside.
+ Since right of coparcenar is a pre existing right, normally his right
will override the right of alienee.
+ CoparceHars have no right to get an injunction to prevent the
karta from alienating the property.

Partition and reunion 59) Raghvamma Vs. Chenchamma (AIR 1964 SC 136) {the court has explained the
doctrine of relation back. According to this doctrine, although communication regarding
partition might be received by Coparcenars on different dates, their receipt will relate
back to the date of notice i.e. severance will be effective from the date on which
communication is put into transmission; but the vested right that might accrue in the
interval, between the date of transmission and date of receipt, are preserved.

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 103

THE MUSLIM LAWS

Hindu Marriage Act, 1955

List of Landmark Cases

Sr. Sections/Topics Related Cases

No. (Including Definitions etc.)
Nature of Muslim Marriage 60) Amina Vs. Hassn Koya k2003) 6 SCC 93, MR 2004 SC 1227] {speaking through Arun
Kumar J. held in Pan 4 that Muslim Nikah is a contract unlike the Hindu marriage which
is a sacrament. However in this case the reasoning behind calling it a contract has not
been explained.

61) Abdul Kadir Vs. Salima [1886) 8 All (FB)] Justicc Mahmood held that Muslim
marriage is not a sacrament hut purely a civil contract.)

62) Anis Begum Vs. Mohd. Istafa [(1933) All] {Sulaiman C.J., has pointed out that apart
from being a contract, a Muslim marriage is also a religious sacrament.

63) Begum Subanu Vs. A. Abdul Gafoor (AIR 1987 SC 1103) {[Editor’s Note :- After the
decision of the Hon’ble Supreme (Court in Shah Bano’s case (AIR 1985 SC 945) the
question of grant of mamntenante under S. 125 of Criminal P. C. 1974 to Muslim
women has evoked much public interest. The Hon’ble Supreme Court in Shah Bane’s
case has categorically held that the right to maintenance conferred by S. 125 can be
exercised irrespective of the personal law of the parties. That was a case of claim for
maintenance made by a divorced Muslim wife. The Hon’ble Supreme Court placed
reliance on the Explanation to S. 125 (3) to li’rtify the view it has taken

In this case the question that came up for consideration before the Hon’ble Supreme
Court was whether a Muslim wife whose husband has married again is worse off under
law than a Muslim wife whose husband has taken a mistress to claim maintenance from
her husband. The main defence raised was that since the husband is permitted by
Muslim law to take more than one wife his second marriage cannot afford a legal
ground to the wife to live separately and claim maintenance. The Hon’ble Supreme
Court held that irrespective of the husband’s right under his personal law to take more
than one wife, his first wife would be entitled to claim maintenance and separate
residence if he takes a second wife.

The Hon’ble Supreme Court, it could be said has gone a step further in this case after
judgment in Shah Bano’s case in analysing the provisions of Explanation to sub-s. (3) of
S. 125. Indeed, in the decision itself, it is stated that though the Court stands benefited
by earlier decisions, the Explanation calls for a

Nature of Muslim marriage

Explanation to sub-section (3) of Section 125 Ifa Muslim husband contracted a second
marriage then first wife has a right to claim maintenance even living away from the
husband more intrinsjcal examination than has been done hitherto. It has been
observed that, the earlier decision of the Hon’ble High Courts and the Suprcme Court
has taken into consideration only the first limb of the Explanation.

Interpreting the second limb of the Explanation to S. 125 (3) which hitherto remained
unconsidered, in the context of the main defence plea that husband under Muslim law
has right to take more than one wife, the Hon’ble Supreme Court held that the
Explanation has to be construed with reference to the two classes of injury to the
matnmonial rights of the wife viz caused by (a) taking of a second wife and (b) by
taking of a mistress as contemplated by the explanation and not with reference to the
husbands right to marry again When so construed the view that the wife will be entitled
to refuse to live with the husband if he had taken a mistress but cannot refuse likewise
if he has married a second wife will lead to discnminatory treatment between wives
whose husbands have lawfully married agaiñ and wives whose husband have taken
mistresses]

Recovery of maintenance allowance granted under the Cr.P.C

64) Kuldip Kaur v Surinder Singh (AIR 1989 SC 232) {ln the recent the past the
Supreme Court had occasions to interpret Section 125 of Criminal P.C. extending its
benefit to divorced Muslim Women dependant father etc. In this judgment the problem
of recovery of maintenance allowance has been dealt with by the Supreme Court.

It is held that a person who without reasonb1e cause’ refuses to comply with the order
of the Court to maintain his neglected wife or child would not be absolved of his liability
merely because he prefers to go to jail. Sentencing a person to jail is a “mode of
enforcement” and not a “mode of satisfaction”. The liability can be satisfied only by
making actual payment of the an-ears. The Hon’ble Supreme Court in this case directed
that the defaulting husband be put in jail till he makes the payment of maintenance
allowance.}
Muslim divorced women’s right
of maintenance under 125 CrPC 65) Mohd. Ahmad Khan Vs. Shah Bano Begum (AIR 1985 SC 945) {5 Judge bench;
judgment delivered by Y.V. Chandrachud, held that a divorced Muslim woman who has
remained unmarried and unable to maintain herself can file a petition under sec. 125
CrPC against her cx husband for maintenance even after the period of iddat.)

Note: this judgment created huge controversy among the Muslim community as prior to
this judgment a Muslim husband was under no obligation to maintain her divorced wife
after the period of iddat, but the judgment has extended the right of Muslim divorced
women t6 claim maintenance even after the period of iddat.

In order to set this controversy, the Parliament has enacted the Muslim Women
(Protection of Rights on Divorce) Act, 1986 to dilute the judgment of the Hon’ble
Supreme Court.

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 104

66) Danial Latifi and another Vs. Union of India [(2001) 7 SCC 740, AIR 2001 Sc 3958]
5 judge bench, judgment delivered by S. Rajendra Babu, upholding the validity of the
Act, the Apex court arrived at the following conclusions and held as under:

+ The former husband of a divorced Muslim wife is liable to make a reasonable and fair
provision for the future of such divorced wife which obviously includes her maintenance
as well. Such a reasonable, and fair provision extending beyond the iddat peiod must be
made by the husband also :within, the iddat period in terms of sec 30) (a) of the Act

Liability of Muslim husband towards his divorced wife to pay maintenance is not
confined to iddat period. It would extend to the whole Iife of the divorced wife unless
she gets married for a second time

The provisions of the Aware not violative of Articles 14, 15 and 21 of the Constitution.

Dwelling upon the decision in the Shah Bano s case and its’s impact on this Act the SC
observed that though it may look ironical that the enactment intended to reverse the
decision In. Shah Bano case, actually codifies the very rationale contained therein [Para
29 last line]

Para 28 A careful reading of the provisions of the Act t would indicate that a divorced
woman is entitled to a reasonable and fair provision for maintenance It was stated that
Parliament seems to intend that the divorced woman gets sufficient means of livelihood
after the divorce and therefore, the word ‘provision’ indicates that something is
provided in advance for meeting some needs In other words at the time of divorce the
Muslim husband is required to contemplate the future needs and make preparatory
arrangements in advance for meeting those needs. Reasonable and fair provision may
include provision for her residence, her food, her clothes, and other articles. The
expression “within” should be read as “during” or “for” and this cannot be done because
words cannot be construed contraiy to their meaning as thc word “within” would mean
“on or hefore”, “not beyond” and, therefore, it was held that the Act would mean that
on or before the expiration of the iddat period, the husband is bound to make and pay a
maintenance to the wife and if he fails to do so then the wife is entitled to recover it by
filing an application before the Magistrate as provided in Section 3(3) but nowhere the
Parliament has provided that reasonable and fair provision and maintenance is limited
only for the iddat period and not beyond it. It would extend to the whole life of the
divorced wife unless she gets married for a second time.

Para 29: The important section in the Act is Section 3 which provides that divorced
woman is entitled to obtain from her former husband maintenance’, ‘provision and
‘mahr’, and to recover from his possession her wedding presents and dowry and
authorizes the magistrate to order payment or restoration of these sums or properties.
The crux of the matter is that the divorced woman shall be entitled to a reasonable and
fair provision and maintenance to be made and paid her within the iddat period by her
former husband The wordings of Section 3 of the Act appear to indicate that the
husband has two separate and distinct obha,on (1) to make a reasonable and fair
provision for his divorced wife and (2) to provide maintenance’ for her the emphasis of
this section is not on the nature or duration upon such ‘provision’ or ‘maintenance’, but
on the time by which an arrangement for payment of provision and maintanance should
be concluded namely within the i’daat period if the provisions are so read, the Act would
exclude from liability for post iddat period maintenance is a man who has already
discharged his obligations of lioth resonable and fair provision and ‘maintanance’ by
paying these amounts in a lump sum to his wife in addition to having paid his wife’s
mahr and restored her dowry as per Section 3(l)(c) and 3(lXd) of the Act Precis the
point that arose for consideration in Shah Banos caqp,was that the husband has not
made a reasonable and fair provision for his divorced wife even if he had paid thRa
amount agreed as mahr half a century earlier and pidvtded iddat maintenance and he
was therefore, ordered to pay a specified sum monthly to her under Section 125 Cr.P.C.
This position was available to Parliament on the date it enacted the law but even so, the
provisions enacted under the Act are ‘a reasonable and fair provision and maintenance
to be made and paid’ as provided under Section 3(l)(a) of the Act and these expressions
cover different things, firstly, by the use of two different verbs - “to be made and paid
to her within the iddat period’ it is clear that a fair and reasonable provision is to be
made while maintenance is to be paid; secondly section 4 of the Act, which empowers
the magistrate to issue an order for payment of maintenance to the divorced woman
against various of her relatives, contain no reference to ‘provision’. Obviously, the right
to have ‘a fair and reasonable provision’ in her favour is a right enforceable only against
the woman’s former husband, and in addition to what he is obliged to pay as
‘maintenance’; thirdly, the words of the Holy Qurun, as translated by Yusuf Ali of ‘mats’
as ‘maintenance’ though may be incorrect and that other translations employed the
word ‘provision’, this court in Shah Bano’s case dismissed this aspect by holding that it
is a distinction without a difference. Indeed, whether ‘mala’ was rendered ‘maintenance’
or ‘provision’, there could be no pretetkus in Shth Bds case had provided anything at all
by way of ‘mata’ to his divorced wife. The contention put forth on behalf of the other
side is that a divorced Muslim woman who is entitled to ‘mata’ is only a single or one
time transaction which does not mean payment of maintenance continuously at all. This
contention, apart from supporting the view that the word ‘provision’ in Section 3(0(a) of
the Act incorporates ‘mata’ as a right of the divorced Muslim woman distinct from and in
addition to mahr and maintenance for the iddat period, also enables ‘a reasonable and
fair provision’ and ‘a reasonable and fair provision as provided under Section 3(3) of the
Act would be with reference to the needs of the divorced woman the means of the
husband and the standard of life the woman enjoyed during the marriage and there is
no reason why such provision could not take the form of the regular payment of
alimony to the divorced woman, though it may look ironical that the enactment
intended to reverse the decision in Shah Bano ‘s case, actually codifies the very
rationale contained therein.

Para 30 A comparison of these provisions with Section 125 Cr.P.C. will make it clear that
requirements provided in Section’125 of Cr.P.C. and the purpose, object and scope
thereof being to prevent vagrancy by compelling those who can do so to support those
who are unable to support themselves and who have a normal and legitimate claim to
support is satisfied, If that is so, the argument of the petitioners that a different scheme
being provided under the Act which is equally or more beneficial on the interpretation
placed by us from the one provided under the Code of Criminal Procedure deprive them
of their right loses its significance. The object and scope of Section 125 Cr.P.C. is to
prevent vagrancy by compelling those who are under an obligation to support those
who are unable to support themselves and that object being fulfilled, we find it difficult
to accept the contention urged on behalf of the petitioners.

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 105

67) Sayed Karim Vs. Zarina Bi [(1992) 1 Crimes 1164 (Kant)] Weld either both the
divorced wife and her former husband or either of them enn give the declaration in
writing u/s 5 of the 1986 Act that they would prefer to be governed by the provision of
sections 125 to 128 CrPC. }

68) Shabana Bane Vs. lmran Khan [(2010) I SCC 666] a division bench of the SC
speaking through Deepak Verma J., held that a Muslim divorced wife can file a petition
u/s 125 CrPC even in the absence of any declaration by both the parties under s. S of
the Muslim Women (Protection of Rights on divorce) Act, 1986. The court further held
that even if a Muslim woman has been divorced, she would be entitled to claim
maintenance from her husband u/s 125 CrPC after the expiry of period of iddat also, as
long as she does not remarry.

Applicability of 125 Cr,PC on divorced Muslism wife after the éhactment ñf The Muslim
Women(Protection of Rights) on Divorce Act 1986

Right of maintenance of child of divorced parents

69) Noor Saba Khatoon Vs. Mohd Quasim [(1997) 6SCC 233, AIR 1997 SC 3280]
{Speakirig through Dr. AS. Anand, J., the SC held that right of minor children staying
with their divorced mother to claim maintenance from their Muslim father having
sufficient means till they attain majority or in case of females fill they get married is not
affected by section 3(l)(b) of Muslim Women (Protection of Rights on Divorce) Act,
1986. The court observed that section 3(1 )(b) of the said Act provides additional
maintenance to the divorced mother for maintaining her infant child for the fosterage
period of 2 years from the d4teof birth of the child and is independent of the right of
the minofchildren unable to maintain themselves to maintenance u/s 125 CrPC }

Proof of pronouncing talaq

70) Iqbal Bano v State of UP and anr [(2007) 6SCC AIR 2007 SC 2215 Dr Arijit Pasayat
and DK Jain JJ {The court speaking through Dr Arijit Pasayat J has keld as follows

The Muslim Wowen (Protection of Rights on Divorce) Act 1986 only applies to divorced
women and not to a woman who is not divorced.

A mere plea taken in a written statement of a divorce having been pronounced

sometime in the past cannot by itself be treated as effectuating talaq on the date of
delivery of the copy of the WS to the wife. Evidence needs to be adduced and the
pronouncement of talaq at the claimed earlier date has to be proved

Legitimacy and legitimation

71) Habibur Rahman Chaudhary v Altaf Ali Chaudhary (AIR 1922 W 159) {it was
observed that “legitimacy is a status which results from certain existing facts
Legitimation is a proceeding Which treates a status which didn’t exist before In the
proper sense there is no legitimation in Mohammedan law. Examples of legitimation so
called, may he found in other systems e.g. Adoption of Hindu law”.}

72) Dukhtar Jahan Vs. Mohammed Farooq (AIR 1987 SC 1049) {The husband and the
wife were close relations and not strangers before marriage. Their marriage lasted only
for about 17 months since then the husband divorced his wife. However, when the
parties were in wedlock the appellant wife delivered a female child. The child was born
in 7 months’ time from date of marriage. It was not claimed to be prematurely born.
The child birth took place in the house of the husband. The husband did not divorce the
wife immediately after the child birth or even two or three months later but he divorced
her only after 10 months. The wife filed a claim for maintenance for the child. The
husband refuted his liability to provide maintenance to the child on the ground that he
was not the father of the child and that the child had been conceived even before
marriage.

Held, that on the sole ground thaç the child had been born in about 7 months1 time
after the marriage it could not be concluded that the child should have been conceived
even before the marriage. Giving birth to a viable child after 28 weeks’ duration of
pregnancy is not biologically an improbable or impossible event, The refusal of the claim
for maintenance for the child was therefore improper. It was also against the rule of
evidence contained in S. 112 of the Evidence Act.

Moreover even the conduct of the parties and the attendant circumstances support the
case of the wife rather than that of the husband, If the wife was pregnant even at the
time of the marriage she could not have concealed that fact for long and in any event
the husband would have come to know of it within two or three months of the marriage
and thereupon he would have immediately protested and either discarded the wife or
reported the matter to the village elders On the contrary the husband had continued to
lead life with the wife ji normal manner till the birth of the child Even the confinemet
have taken place in his house, the husband had not disowned the child immidiately
after its birth or sent away the appellant to her parents house. Such would not have
been his conduct if he had any doubt about the paternity of the child lastly even if the
child had been born after a full term pregnancy it has to be borne in mind that the
possibility of the husband having had access to the wife before marriage cannot be
ruled out because they were closely related and would therefore have been moving in
close terms. All these factors negate the plea of the husband that the minor child was
not fathered byhim

73) Mohd Isnisil v flaalcur Sabir Ali (air 1962 SC 1722) {The SC accepted the doctrine of
permanent dedication of property in favour of God while creating a wakf. The SC
observed that the expression permanent dedication in the definition of wakf under
stttionn 2(l) of the Mussalman Wakf Validating Act 1913 signifies that the wakf property
is vested in God

74) Muhammad Arif Vs. State of Gujarat (AIR 1997 SC 104) (Held that where the
creation of waqf is dependent on any figure event, the waqf is void ab initio.

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 106

75) Abdul Fata Mohammed Vs. Russomay DhurChaudhary (1894 PC) (held that ‘if the
primary object of wakf is the aggrandizement of family and the gift to charity is
illusionary where from the small amount or from its uncertainty and remoteness, the
wakf is invalid and no effect can be given to it.”

Note: The above decision of Privy Council created dissatisfaction among the Muslims of
India, who made strong representation that law as laid down was a departure from the
Muslim law. Accordingly the Wakf Validating Act, 1913 was passed. Under this Act a
Muslim can create a wakf for the benefit of his descendents provided that ultimate gift
howsoever remote is reserved for charity.

Wakf-permanent dedication in favour of God

Contingent wakf
Wakf alal aulad Family wakf

76) Garib Das Vs. Munshi A. Ahmad (AIR 1970 SC 1035) (A bench of S.M. Sikri and O.K.
Miller, Ji., speaking through Mitter, J., held that A wakf inter vivos is completed by a
mere declaration of endowment by the owner. Further,the founder of a wakf may
constitute himself the first mutawalli and when the founder and the mutawalli are the
same person, no transfer of physical possession is necessary. Nor is ii necessary that
the property should be transferred from the name of the donor as owner into his name
as mutawalli. An apparent transaction must be presumed I to be real and the onus of
proving the contrary is on the persons alleging that the wakf was not intended to be
acted upon.)

77) Ghulam Abhas Vs. Razia Begum (AIR 1951 All 86) {held that transfer of an
immovable property worth more than Rs 100/ cannot be made by Muslim husband to
his wife by way of gift in lieu of dower debt without registration such transaction is
neither a gift nor combination of gifts It is a sale which can only be I effected by means
of a registered instrument.

78) Mahboob Saheb Vs. Syed ismail (AIR l995 SC 1205) {held as follows
4 Though gift by a Mohammadan is not required to be in writing and consequently need
not be registered under the registration Act; a gift to be complete, there should be
declaraiton of the gift by the donor acceptance of the gift or implied, by or on behalf of
the done and delivery of possession of the property the either of the gift by the donor
to the donee. The donee should take delivery of the possession of that property either
actually or constructively On proof of these essential conditions the gift becomes
complete and valid In case of immovable property in the possession of the donor he
should completely divest himself physically of the subject of the gift

‘Although mother is in nearest relationship of her child, she is not regarded as guardian
of her minor’s child property Therefore; she has no right to transfer the interest of her
minor’s child property.

79) Bhoop Vs. Matadin Bhardwaj (AIR 1991 SC 373) {The court observed as “It is
common knowledge that the right of preeniption is generally conferred on a co-sharer in
the property or on a person who claims some right over the property e.g., a right of
way, etc., or on the ground of vicinage i.e. being an owner of the adjoining property.
This right may be founded in statute or custom or personal law by which the parties are
governed. The sole object of conferring this right on a co-sharer or owner of an
adjacent immoveable property is to exclude strangers from acquiring interest in an
immoveable property as a co-sharer or to keep objectionable strangers away from the
neighbourhood. This right is purely personal and cannot be transferred to a third party
for the obvious reason that it would defeat the very purpose of its conferment. “}

Transferof immovable property in lieu of dower whether registration required or not9

Regarding ‘gift’ and ‘mother as guardian of minor’s property’

Pre-emption

Characteristics of widow right of retention

80) Bhau Ram Vs. Baij Nath (AIR 1962 SC 1476) 4 pre-emption only of the ground of
vicinage Wa and cannot be enforced.)

Possession of the husband’s property

right of retention
Only possessory right
Payment of dower from income of property
Property is non-transferable
Once possession is lost, it is lost forever
The right of retention is not transferable
Heritability of the right of retention

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 107

THE LAW OF CONTRACT

List of Landmark Cases

Sr. Sections/Topics Related Cases

No. (Including Definitions etc.)
Intention to create legal obligation

1) Carlill Vs. Carbolic Smoke Ball Co. {Test of contractual intention is objective and not
subjective Merely because the promisor contends that there was no intention to create
legal obligations would not exempt him from liability.)

2) McGregor Vs. McGregor {a husband and a wife withdrew their complaints under an
agreement by which the husband promised to pay her an allowance and she to refrain
from pledgipg his credit Held that there is binding contract) -

3) Balfour V Balfour (the husband promised to pay 30 pounds per month to his wife as
maintenance, but he failed to pay The husband was held not liable as there wa no
intention to create legal relanonship) -

4) Jones v Padavatton (the daughter acting on her mother’s promise left her service and
gone to annother country for education. The mother undertook to foot the expenses.
For five long years the daughter could not complete her education. Differences arose
between them and the mother stopped the payments. Held the engagement did result
tn a contract but, only for a reasonable penod }

5) Banwari Lal Vs. Sukhdarshan Dayal [1973) 1 SCC 294] {ln an action sale of plots of
land, a loudspeaker was spelling out the terms etc. of the sale one of the statements
being that a plot of certain dimensions would be reserved for Dharamshala (public inn)
Subsequently that plot was also sold for private purposes. The purchasers sought to
restrain this. Held that terms of the agreement announced by microphones are not
enforceable}

6) Kalai Haldar v Sheikh (Bombay HC) {Guest didn‘t turn up to dinner. Host filed the
suit Held that there was no intention to create legal obligation}

Basic elemtnts of a contract: Basic elemtnts of a contract:

Offer, Acceptance, Considertion and offer, acceptance, considertion and contractual capacity
Contractual Capacity
Offer

7) Upton Rural District Council Vs. Powell {a fire broke out in the defendant‘s firm.
Believing that he was entitled to the free service of Upton Fire Brigade (Which he was
not) he summoned it. Upton claim compensation for its services. Held, the services
were rendered on an implied promise to pay for them.)

Communication of offer
8) Lalman Shukla Vs. Gauri Dutt (the defendant by handbills offered to pay Rs. 501 to
anyone discoveriag the lost boy. The servant of defendant came to know of this offer
only when he had already traced the missing child and had informed the defendant. His
action to recover the reward failed.)

9) R. Vs. Clark (Australian case) (It was held that even if the acceptor had once known
of the offer but had completely forgotten about it at the time of acceptance, he would
be in no better position than a person who had not heard of the offer at all.)

General offer
10) Weeks Vs. Tybald (It was held in this case that an offer must be made to a definite
person. This decision has been overruled in Carlill Vs. Carbolic case.)

11) Carlill Vs. Carbolic Smoke Ball Co. [(1893) 1 QB 256) {A company offered by
advertisement to pay £ 100 to anyone “who contracts the increasing epidemic influenza,
colds or any disease caused by taking cold, after having used the ball according to
printed directions”. It was added that £ 1000 is deposited with the Alliance Bank
showing our sincerity in the matter.” The plaintiff used the smoke balls according to the
directions but she nevertheless subsequently suffered influenza. She was held entitled
to recover the promised reward.

It was contended by the defendent that there was no intention to enter into legal
relations as it was simply a puffing advertisement: that the offer was not made to any
one person in particular and that the plaintiff had not communicated her intention to
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accept. The court rejected all the contentions of the defendant co. and beld that an
offer can be made to world at large anyone can accept the ofter by complying with the
terms of the contract and express communication intimating the acceptance of offer is
not required in general offer.}

Cross offer
12) Tinn v Hoffman & Co {When two parties make identical offers to each other in
ignorance of each other’ s offer, the offers are ‘cross offer’ Such offers do not constitute
acceptance of one’s offer by other and as such there is no completed agreement.

Offer and invitation to treat

13) Harvey v Facey {Related to quotation of price}

14) McPherson Vs. Appanna (AIR 1951 SC 184) {In both these cases it was held that
mere statement of the lowest price at which the offeror would sell contains no implied
contract to sell at that price}

15) Pharmaceutical Society of GB. Vs. Boots Cash Chemists Ltd. {the display of goods in
a shop with price tags attached is not an offer even if there is a “self service” system in
the shop
Acceptance

16) Brodgen Vs. Metropolitan Rail Co. {a mere mental determination to accept is not
enough.}

When communication not necessary

17) Carlill Vs. Carbolic Smoke Ball Co. {in all cases of general offers, the acceptance is
usually by conduct.)

Communication to offerer himself

18) Felthouse Vs. Bindley {the nephew intended his uncle to have the horse, but had
not communicated this to the uncle, instead he told the auctioneer not to sell the horse
as it was already sold to his uncle. Held that a communication to a stranger will not do.

Communication by acceptor himself

19) Powell Vs. Lee {information received from an unauthorized person is ineffective as it
is like over-hearing from behind the door.)

Sec. 8: Acceptance by performing conditions, or receiving consideration

20) Harbhajan Lal Vs. Harcharan Lal (AIR 1925 All 539) {the principle of sec.8 was
followed by YEARS, CJ of the All HC in this case. A young boy ran away from his father’s
home. The father eventually issued a pamphlet, offering a reward in these terms:
‘Anybody who finds trace of the boy and brings him home will get Rs 500.” The plaintiff
was at the Dharamshala of a Railway station, there he saw a boy overhead part of a
conversation, realized that the boy was the missing boy and promptly took him to the
Railway police station and sent a telegram to the boy’s father that he had found his son.
It was held that handbill was an offer open to the whole world and capble of
acceptance by any person who fulfilled the conditton, and that the plaintiff substantially
performed the colidition and was entitled to the amount offered.}

When communication of acceptance is complete

21) Entorse Ltd Vs. Miles Far East Corpn.

22) Bhagwandas Kedia v Girdhanlal & Co.(AIR 1966 SC 543) {When the acceptance is
by telephone or telax, the contract is complete only when the acceptance is received
(clearly heard and understood) by the offeror. A contract is deemed to be made at the
Place where acceptance is received or heard.}

Counter proposal
23) Hyde Vs. Wrench {an acceptance with a variation is no acceptance: it is simply a
counter proposal, which must be accepted by the original promisor before a contract is
made)

Tenders
24) Bengal Coal Co. Vs. Homee Wadia & Co. {the offer of the tenderer and each
successive order of the acceptor of tender together constitute a series of contract.

25) Union of India Vs. Maddala Thathiah (AIR 1966 SC 1724) {the acceptance of a
tender may result into different types of 4 agreements depending upon the terms of the
tender notice)

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Revocation of proposal
26) Henthorne Vs. Fraser {the court observed that a person who has made an offer
must be considered as continuously making it until he has brought to the knowledge of
the person to whom it was made that it is withdrawn.)

27) The Biimmes case {a notice of revocation was sent by telax and was received by
the plaintiff’s telex machine during normal business hours, but the plaintiff read the
message the next day.)

28) Dickinson Vs. Dodds {the plaintiff was informed by a third person that the property
about which an offer was made had already been sold to another. Held that a sale to
third person, which came to the knowledge of the person to whom the offer made was
an effectual withdrawal of the offer.}
Note: Under the Indian law, it is necessary that the communication of revocation
should be from the offerer or from his duly authorized agent. However, under the
English law, it is enough if the acceptor knows reliably that the offer has been
withdrawn. Dickinson Vs. Dodds represents the English law and not the Indian law.

Consideration
At the desire of the promisor
29) Durga Prasadv Baldeo {the plaintiff built a shopping complex on the order of the
collector. The shops came to be occupied by the defendants who in the consideration of
the plaintiff having expended money in the construction promised to pay him
commission on articles sold by them. The plaintiff’s action to recover the commission
was rejected on the ground that plaintiff’s act was the result not of the promise but of
the collector’s order.)

30) Kedar Nath v Gorie Mohd. {on the faith of the promise subscription the plaintiff
entered into a contract with a contractor for the purpose, of building a town hall. Held
that the plaintiffs act in entering in to contract with the contractor was done at the
desire of the defendant)

31) Doraswami lyer v A. Ayyar (AIR 1936 Mad 135) {the temple repairs were already in
progress when the subscription was invited. Held that the action was not induced by the
promise to subscribe but was rather independent of it. Thus the subscriber (defendant)
who had promised to pay but had later refused was not held liable.)

Promisee or any other person

32) Tweedle Vs. Atkinson {consideration must move from the promisee and the
promisor and not from any third person i.e. privity of consideration.}
Note: Privity of consideration is not applicable in India. Here consideration can move
from any third person also.

33) Chinnaya Vs. Ramaya {A, a landlord, executed a gift deed of certain lands in favour
of his son B, with a direction that he should pay to his uncle C an annuity of Rs. 8,000
for a period of three years. On the same day, B also executed a separate undertaking in
favour of C agreeing to pay the annuity. B however refuses to keep his promise. C sued
B to recover the amount due under the agreement. Held that the consideration (gift of
lands) furnished by A is enough to enforce the agreement between B and C.)

34) Dutton Vs. Poole

Privily of contract
35) Tweddle Vs. Atkinson

36) Dunlop Pneumatic Tyre Co. Ltd.v. Selfridge and Co. (both these cases are on ‘privity
of contract’.

37) Jamna Das Vs. Ram Avatar {the authority for the application of rule of privity of
contract is this Privy Council judgment.)

38) M.C. Chacko Vs. State Bank of Travancore (AIR 1970 SC 504) {the SC of India has
approved the rule of privity of contract in this case.

No liability can impose on outsider

39) Fateh Chandra Vs. Maharashtra Electricity Board

40) M/s Gujarat Bottling Co. Vs. Coca-Cola Co.

Abstinence -
41) Kastoori Devi v Chiranji Lal (AIR 1960 All 446) {forbearance to sue has always been
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regarded as valuable consideration. It is a kind of abstinence. The withdrawal of a

pending suit by a wife against her husband was held to be a good consideration for his
promise to pay her maintenance.}

Past consideration “has done or abstained from doing”

42) Sindha v Abraham {Bombay HC held that past service rendered by the promisee to
the prisor is a good consideration.}

43) Kunj Brhari v Madhusudan {All HC held that past debt is good consideration for
mortgage.

Explanation 2 to sec 25
44)Bolton v Maddan {Blackburn J. ‘the sufficiency of consideration forihe parties to
consider at the time of making the agreement flot for the court when it is sought to he
enforced.

Something
45) C Iyer Vs. Ranga lyer {Subba Rao J, held that “something” means consideration
must have some value in the eye of law.)

Promise to perform public duty is no consideration

46) Collins Vs. Godfroy {held that promise to pay money to investigating officer to
investigate the case is no consideration as investigating officer is duly bound to perform
it. Be is already legally bound to do it.)

47) R.S. Chetti Vs. Ramaswami (Mad HC) {promise to pay money for appearing as
witness summoned already issued isno consideration because person is already legally
bound to appear before the court.}

Promise owed to a third person

Shadwell Vs. Shadwell {A promises to marry a girl B. Her father promised to pay him
money. Uncle of girl also promised to pay money. Held that promise to a third person is
good consideration.}

Contractual capacity
48) Khan Gul Vs. Lakha Singh (AIR 1928 Lah 609) {no estoppel against a minor}

49) Barnard Vs. Haggis {where an infant borrowed a mare for riding only, he was held
liable when he lent her to one of his friends who jumped and killed her.

Doctrine of restitution
50) Mohiribibi Vs. Dharmodas Ghose [(1903) 30 l.A. 114] {the court observed that secs.
64 and 65 of the Contract Act {‘Restoration of benefits received under voidable or void
contract’) starts from the basis of there being a contract between competent parties,
while in a minor’s case there never was and never could’ve been any contract. Thus, no
restitution against a minor.

51) Khan Gul Vs. Lakha Singh (AIR 1928 Lah 609) {the court observed that doctrine of
restitution should atso be applicable against minor.}
Note: The Law Commission of India (9th report) preferred the view enunciated in Khan
Gul case and accordingly the controversy has now been set at rest by sec 33 of Specific
Relief Act, 1963 according to which restitution can be possible even against a minor.

Factors vitiating consent, sec 15-22 Factors vitiating consent, sec 15-22

Whether threatening to commit suicide is coercion within the meaning of sec

15

52) Amiraju v sheshamma {husbànd threatened to commit suicide if his wife dint’t
signed the document containing transfer of poperty. Wife singed the document and
after normalcy prevailed filed a case agnhist the husband that her signature had been
taken by coercion. The court held that threatening to commit suicide will amount to
coercion within sec. 15 of the contract Act

Undue influence
53) Gulam Ali Vs. Naziruddin (Guahati High Court) {“The court will jealously watch all
transactions between parties placed in fiduciary relationship.”)

54) Mahbub Khan Vs. Hakim Abdul Rahim (Rajasthan High Court) {dominating position
means superior prevents expression of inferior’s true mind, overcome power of
resistance and brings about submission of the other.)
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55) Chinnamma Vs. Devenga Sangha (AIR 1973 Mys 338) {it is not necessary that the
person in a position to dominate the will of the other party must himself be benefited. It
is sufficient if the third person in whom he is interested is benefited.

Innocent misrepresentation is not fraud.

56) Derry Vs. Peek {if the person making a representation which is not true honestly
believes in its truth, he is not guilty of fraud.}

Mistake
57) Boulton v jones {Mistake as to identity occurs when one of the parties represents
himself to be some other person than he really is}

58) Cundy Vs. Lindsay

Void, voidable, illegal and Void, voidable, illegal and Unenforceable agreements, secs. 23, 25, 26, 27,
Unenforceable agreements, secs. 23, 28, 29, 30, 36, 56
25, 26, 27, 28, 29, 30, 36, 56
Public policy
59) GheruLal Parekh v, Mahadeo Das [1959) 2 SCC 3442] {Subba Rao, J. cautioned
against the evolution of new heads of public policy and said that the courts should rely
on the well-settled heads only in dear cases of hami to the public.}

60) Quotation by Burrough J.: Public policy is an unruly horse, and when once you get
astride it you never know where it will carry you.”

Restraint of trade (sec. 27)

61) Gujarat Bottling Co Ltd v Coca cola (AIR 1995 SC 2372) (an agreement by the Coca
cola company with licensee for use of certain trade marks like Thums up Limca, etc.
with a condition that the licensee/franchisee shall not deal competing goods was held to
be valid }

62) Madhub Chandra v Raj Coomar (Cal HC) {FIRST CASE ON CONTRACT ACT 1872.....
The Court held that the word absolute is not provided in both Sec. 26 and 27 while it is
provided in sec. 28. This means that under secs. 26 and 27 absolute and partial both
type of restraint is included whereas in sec. 28 absolute restrictions can only be void
and not partial.}

Uncertain agreements(sec.29)
63) Guthing Vs. Lynn {a horse was bought for a certain price coupled with a promise to
give £5 more if the horse proved lucky. The agreement was held to be void for
uncertainty.}

Wagering Agreements, Sec.30 Wagering Agreements, Sec.30

64. Gherulal Parekh v Mahadeo Das (AIR 1959 SC 781) {wagering agreement is not
illegal, it is void only. So it does not affect the collateral agreements. It does not render
its collateral agreement void.}

65. Carlill Vs. Carbolic Smoke Ball Co. ((1892) 2 QB 484 {the nature of wagering
contract has been explained by Hawkins J. in this case as follows: “A wagering contract
is one by which two persons, professing to hold opposite view touching the issue of a
future uncertain event, mutually agree that, dependant upon the determination of that
event, one shall win from the other, and that other shall pay or hand over to him a sum
of money or money’s worth as other stake, neither of the contracting parties having any
other interest in that contract than the sum or stake he will so win or lose.}

Difference between void and illegal agreement

66) Rajat Kumar Rath Vs. Government of India (AIR 2000 Orissa 32) Read pg no 314 of
Chawla himachal}

Contingent Contract 31-36 Contingent Contract 31-36

(67) Bashir Ahmed Vs. Govt. of A.P. (AIR 1970 SC 1089) {with a view to set up a
company for the manufacture and sale of Unani medicines, a State Government paid an
advance to B for the purchase of his book on Unani medicine; however, the scheme of
manufacturing medicines could not materialize. Held that the contract was not
contingent on the happening of the collateral even (setting up of the company) and
thus B can claim the remaining sum from the Government)

Section 39:- Effect of refusal of party to perform promise wholly

Note: Sec. 39 is an example of subsequent voidabilty.

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68) Delatour Vs. Hochester {contract of service between employer and employee.
Employer refused appointment to the employee before joining date. This is an example
of anticipatory breach.

69) Lamior Vs. lyer (Mad HC) {case of anticipatory breach)

Section 50
70) Commissioner of Income Tax, Bombay Vs. Ogale Glass Works Ltd (AIR 1954 SC
429) {the court observed that “there can be no doubt that as between sender and
addressee,it is the request of addressee that the cheque he sent by post that makes
post office the agent of addressee.

71) Unioa of Indian v Radha Kissen Agarwalla (AIR 1969 SC 762) (held in these eases
that when debtor has done something in manner as prescribed by the creditor, then
debtor has discharged himself of contract by the performance. If something afterwards
has happened that is not the control of debtor and thus debtor cannot be made liable
for this.

Doctrine of frustration/Sec 56

(72) Satyabrata Ghose v Mugneeram Bangur & Co (AIR 1954 SC 44) {The doctrine of
frustration comes into play in two types of situation, first where the performance is
physically cut off, and second where the object has failed. The SC held that section 56
will apply to both kinds of frustration. Referring to the section, B.K. Mukherjee J of the
Hon’ble Supreme Court observed as follows:
‘This much is clear that the word “impossible” has not been used here in the sense of
physical or literal impossibility. The performance of an act may not be literally
impossible but it may be impracticable and useless from The point of view of the object
and purpose which the parties had in, view: and if an untoward event or change of
circumstances totally upsets the very foundation upon which the parties rested their
bargain, it can very well be said that the promisor finds it impossible to do the act which
he promised to do.”

Justice BK. Mukherjee in this case observed that in India the theory of frustration has
always been as part of theory of impossibility from the very beginning)

73) Krell Vs. Henry [(1903) 2 KB 740] {A flat was hired only for viewing a coronation
procession but the procession had been cancelled due to king’s illness, it was held that
the object of the contract was frustrated by non-happening of the coronation.)

74) Taylor Vs. Coldwell {In this case a promise to let out a music ball was held to be
frustrated on the destruction of the hall.)

75) Parshotam Das Vs. Batala Municipal Committee (AIR 1949 EP 301) (The Municipal
Committee leased out certain tonga stands to the plaintiff for Rs. 5,000, but no tonga
driver used the stands throughout the year. The contemplated event not having
occurred, the doctrine of frustration applied.)

76) Tsakioglou & Co. Ltd. Vs. Noblee & Throl Gm BH {lntervention of war or warlike
conditions is generally a ground of frustration of contract. However, where a ship has to
take a longer route because of the closure of the normal route (due to war), causing
the inconvemence and loss to shipper, it was held that there was no frustration of
contract when the normal route was closed; if there are more than one ways of
performing a contract and the war cuts off only one of them, the party is still bound to
perform by the other way.)

77) Ganga Saran Vs. Ram Charan Ram Gopal (AIR 1952 SC 9) {A contract was made
for supplying certain bales of cloth manufactured by the New Victoria Mills, Kanpur. The
contract added: “We shall go on supplying goods to you of the Victona Mills as soon as
they are supplied to us by the said mills.” The mill failed to supply the goods to the
sellers and therefore the sellers pleaded frustration. But they were held liable. The court
observed as follows: “The agreement does not seem to us to convey the meaning that
the delivery of the goods was made contingent on their being supplied to the
respondents by the Victoria Mills. We find it difficult to hold that the parties ever
contemplated the possibility of the goods not being supplied at all. The word prepared
by the mills are only a description of the goods to be supplied and the expression as
soon as they are prepared and as soon as they are supplied to us by the said mills,
simply indicate the proeess of delivery.”
It was accordingly held that the contract was neither contingent under section 32, nor
did it fall within the second paragraph of section 56.}

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Quasi contract, Ss. 68-72

Section 70: obligation of person enjoying benefit of non-gratuitous act

78) State of W.B. Vs. BK. Mandal & Sons (AIR 1962 SC 779) GAJENDRAGADKAR J laid
down the conditions on which the liability under the section arises:
“It is plain that three conditions must be satisfied before this section can be invoked:(1)
a person should lawfully do something for another person or deliver something to him:
(2) in doing the said thing he must not intend to act gratuitously: and (3) the other
person for whom something is done or to whom something is delivered must enjoy the
benefit thereof.” Brief facts: The plaintiff, on the request of an officer of the State of
West Bengal, constructed a kutcha road, guard-room, office, kitchen, room for clerks
and storage sheds for the use of the Civil Supplies department of the Government. The
State accepted the works but tried to escape liability under the pretence that no
contract had been concluded in accordance with the requirements of Article 299 of the
Constitution of India. The contractor was thus forced to try his luck with the State under
section 70, and it proved to be better than that of the State but at the cost of fighting
up to the Hon’ble Supreme Court for a sum of Rs. 19,325.

GAJENDRAGADKAR J examined the conditions of liability under the section and found
that they were all satisfied by the facts and, therefore, held the State liable. There was
no doubt that the State even after having requested for the works had the right to
reject. “It could have called upon the contractor to demolish the storage sheds and take
away the material used; but if the state accepted the storage sheds and used them and
enjoyed their benefit, then different considerations come into play and section 70 can
be invoked.

”Sec. 70 applies even if there is non-compliance of constitutional requirement of

contracting with the state (Art. 299).

The court also held that quasi contract is not a contract. It adopted the theory of unjust
enrichment and rejected the implied theory.)

Section 72: Sec. 72 covers both mistake of fact and mistake of law

79) Sri Sri Shib Prasad Singh Vs. Maharaja Srichand (Privy Council) {held that section 72
covers both the situations, payment by mistake of fact and mistake of law

80) Sales Tax Officer v Kanhaiya Lal Saraf (AIR l959 SC 135) {Suprerne court affirmed
the judgment f envy council in Shib Prasad Singh case and held that money paid by
mistake of fact as well as money paid by mistake of law both to be refunded u/s 72.)

New interpretation of sec. 72 by SC

81) Ayurved Pharmacy v State of Tamil Nadu (AIR 1989 SC) {the court has done social
justice by returning the money to customers and not to businessman)

Breach of contract, Sees. 73-75

Breach of contract, Sees. 73-75

82) Hadley Vs. Baxendale {the plaintiff’s mill had been stopped due to the breakag of a crankshaft. The defendants a firm of carriers, were engaged to
carry the shaft to the manufacturers. The plaintiff’s servant told the defendants that the mill was stopped, and that the shaft must be sent
immediately. But the defendants delayed the deliyery. The action was brought for the loss of profits arising out of the delay. The defendants were held
not liable for the loss of profits, as the fact that the mill was out of action for the want of shaft was a ‘special circumstance’ affecting the plaintiff’s mill
and the same should have been pointed out to the defendants in clear terms.

The court laid down two types of damages, namely-a) General damages which arise naturally in the usual course of things from the breach itself and b)
Special damages which arise on account of the unusual circumstances affecting the plaintiff.)

83) Simpson Vs. London & North Western Co. {if the special circumstances are already within the knowledge of the party breaking the contract the
formality of communicating them to him may not be necessary.

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84) Dominion of India Vs. All India Reporter Ltd. (AIR 1952 Nag 32) {the loss by railway of three volumes of a set of books without which the set of 8
volumes became useless, recovery allowed only for the lost volumes. Since the fact that the lost of three volumes would tender the whole set useless
was not brought to the knowledge of the defendant, the value of whole set could not be claimed.

85) Govinda Vs. Railway (Mad HC) (a tailor delivered some sewing machine to the railway for transportation to a particular place where a mela was
organized. Intention of the tailor to do business in the mela by providing tailoring work. Railway delayed the delivery. Held that tailor can only claim
general damages and not

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special because the purpose was not within the contemplation of both the parties.)

86) Hobbs Vs. London & South-Western Rly. Co. {due to the negligence of the defendant railway company, the plaintiff and his family were set
down at a wrong station. Neither any nearby hotel accommodation nor any conveyance was available to them, and they had to walk several
miles in rain. The plaintiff’s wife caught cold. The plaintiff was entitled to substantial damages for inconvenience to the family. But, no
damages were awarded on account of medical expenses incurred for treatment of the plaintiff’s wife and her loss due to pay-cut in office.

Mental pain and suffering

87) Hotson & Hotson v Payne {the court allowed damages when the hotel management cancelled the contract two days before the wedding
and the plaintiff was forced to organize only a simple function for his only daugfiter’s wedding reception.

88) Dharni v Dhanni (English case) (a music band was booked for the purpose of wedding of the applicant’s daughter. Band party cancelled
the contract. An other band party had been booked in the eleventh hour which included local singers and musicians. A poor show was given.
The court awarded refund of money, damage for causing inconvenience and damages for humiliation for poor show}

89) Raj Kishor & Binod (AIR 1989 Pat III) {there was a contract to purchase an American car which the seller failed to supply. The court
allowed compensation for pain and agony.)

Duty to mitigate the loss

90) Jamal/v. Moola Dawood Sons & Co. (on the buyer’s refusal to take delivery, the seller could resell the goods at the prevailing market rate.
If the seller does not resell the goods and his loss is aggravated by the falling market, he cannot recover the enhanced loss. Similarly, where
the seller refuses to perform the contract, the buyer should buy the goods if they are available from any alternative source and cannot recover
any further loss that may be due to his own neglect.

Liquidated damages
91) Dunlop Pneumatic Tyre Co. Ltd. Vs. Selfridge and Co.

Penalty
92) Ford Motor Co. Vs. Armstrong

Forfeiture of Earnest money or Deposit

93) Maula Bux Vs. Union of India [(1969) 2 SCC 554) {the plaintiff contracted to supply to Military Headquarters with potatoes, eggs and fish
for one year and deposited Rs.18,500 for due performance of the contract. On breach of the contract, the Government forfeited the amount
deposited by the plaintiff. The Hon’ble Supreme Court in this case laid down that the forfeiture of earnest money under a contract of sale, if
the amount is reasonable does not fall within Sec.74 (as it does not amount to imposing a penalty). But if forfeiture is of the nature of the
penalty i.e. amount to be forfeited is unreasonable, sec 74 applies.}

94) Shree Hanuman cotton mills Vs. Tata Aircraft Ltd. (AIR 1970 SC 1986) {if a contract requires the buyer to deposit 25% of the total value of
the goods as earnest money while the placing the order, with a stipulation that the amount shall be forfeited in case of default in payment of
price, the term is reasonable and binding on the parties.}

Quantum meruit “in proportion to the work done” -

95) Planche v Colburn {the defendants commenced the publication of a periodical entitled juvenile Library. The plaintiff was engaged to write a
volume on Costume and Ancient Armour, and he was to be paid £ 100 on the completion of the job. After the plaintiff had already collected the
material and written a part of the book, the defendant discontinued the publicailun of the penodical. It was held that the ongrinal contract
having been discharged by the breach of contract by the defendants, the plaintiff was entitled to recover £ 50 by way of remuneration for the
part of the job he has already performed )

96) Puran Lal Vs. State of UP. (AIR 1971 SC 712, P. Jagmohan Reddy and I.D Dua, JJ.} {The court speaking through Jagmohan Reddy J.,
elaborates the concept of quantum meruit in Para 13 as follows:“The principle of quantum meruit is rooted in English law-under which there
were certain procedural advantages in framing an action for compensation for work done. In order to avail of the remedy under quantum
meruit, the original contract must have been discharged by the Defendant in such a way as to entitle the Plaintiff to regard himself as
discharged from any further performance and he must have elected to do so. The remedy it may be noticed is however, not available to the
party who breaks the contract even though he may have partially performed part of his obligation. This remedy by way of quantum meruit is
restitutory that is it is a recompense for the value of the work done by the Plaintiff in order to restore him to the position which he would have
been in if the contract had never been entered into. In this regard it is different to a claim for damages which is a compensatory remedy aimed
at placing the injured party, as near as may be in the position which he would have been in, had the other party performed the contract.”}

On section 75 (party rightfully rescinding contract, entitled to compensation)

97) Hazi Ahmad Yaar Khan Vs. Abdul Gani Khan (Rangoon HC) {Vivian Bose J., has said that- “the legislature has used the word ‘non
fulfillment’ instead of ‘recession or breach’ in order to bring the law in line with English law. He also declared that sec. 75 applies when contract
is voidable subsequently and not whencontract voidable initially.)

Surety’s liability, section 128. Surety’s liability, section 128.

98. The Bank of Bihar Ltd Vs. Dr. Damodar Prasad and Anr (AIR 1969 SC 297) [SM.
Sikri, R.S Bachawat and K.S. Hegde, JJ.] {Speaking through R.S. Bachawat the Court
held that under section 128, save as otherwise provided in the contract, the liability of
the surety is co-extensive with that of the principal debtor. The surety thus becomes
liable to pay the entire amount. His liability is immediate. It is not deferred until the

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creditor exhausts his remedies against the principal debtor, In the absence of some
special equity the surety has no right to restrain an action against him by the creditor
on the ground that the principal is solvent or that the creditor may have relief against
principal in some other proceedings. Likewise where the creditor has obtained a decree
against the surety and the principal the surety has no right to restrain execution aginst
him until the creditor has exhausted his remedies against the principal.

In this case plaintiff bank let moaey to defendant 1 on the guarantee of D2. The
guarantee was a collateral security. The demand of the payment of the liability of the
principal debtor was the only condition of the enforcement of the bond. That cotidition
was fulfilled. Neither the principal debtor nor the surety discharged the admitted liability
of the principal debtor in spite of demands. The plaintiff filed a suit and obtained a
decree against both containing a direction that plaintiff should be at liberty to enfore its
decree against the surety only after exhausting its remedies agatnst the pnncipal
debtor.

Held that direction of the court that the plaintiff should be at liberty to enforce its dues
against the surety only after exhausting its remedies against the principal debtor is not
valid as surety’s a liability is co-extensive with that of the principal debtor.

-----o-----

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Some questions:
1) X executes power of attorney in favour of his advocate Y while X was in good state
of health and mental understanding. Later on, x becomes old, infirm, weak and
incapable of apprehending due to mental incapacity. Does the power of Attorney
executed by him become worthless and redundant in the eye of law, on account of
change in the state of health an mental infinnity of X? Please discuss giving reasons.
DJS 2000

CASES AND RELATED TOPIC (Collection of match the column questions of various
examinations)

CASES & RELATED TOPICS

1. Carlill Vs. Carbolic Smoke Ball Co. - Offers at large

2. Tinn Vs. Hoffman - Cross offer do not create
3. Fishery. Bell Tin - Invitation to treat
4. Household Fire Insurance Co. Vs. Grant - Acceptance complete when letter of
acceptance posted
5. Tinn v Hoffman & Co- Cross offer
6.Fitch V Snedkar- Communication of offer cannot be waived
7. Harvey v Facey- Quotation of price
8. Dutton v Poole- Privity of consideration
9.Balfour v Balfour-Intention to create legal obligation
10. Courtuner v Hastie- Res extincta
11. Offord Vs. Davies- Revocation of offer
12. Alcard v.Skinner- Undue influence
13. Dualop Vs. Higgins- Acceptunce through post
14. Dunlop Vs. Selfridge- Privity influence
15. Hydev. Wrench- Counter offer
16. Hadley Vs. Baxendale- Measure of damages
17.Ramsgate Victoria Hotel Co Vs. Montifiore- Unreasonable delay in accepting
offer causes it to lapse.
18.Simpson Vs. London and North Wester Railway - Special damages

FEW MORE CASES

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 118

THE SPECIFIC RELIEF ACT, 1963

List of Landmark Cases

Sr. Sections/Topics Related Cases

No. (Including Definitions etc.)
Sec 5-6 Sec 5-6
1) Shashi Properties and Industries Ltd. Vs. Sunil Aakash Sinha (2004 SC)
{held that settled possession exclude the situation wherein the plaintiff was in the
process of trespass.}

2) Nair Service Society Ltd. Vs. K. C. Alexander and Others (AlR 1968 SC
1165) {three judge bench of the SC speaking through
Hidayatullah, J, held as follows

* On issue 1 i.e. can sec. 5 and 6 be clubbed together in a single suit? The court held
that clubbing of sec. 5 and 6 shall not be allowed. Under sec. 5 the issue of title can be
raised whereas u/s 6 it can’t be raised. Therefore, such clubbtng together may amount
to conflicting decisions.

* On issue no.2 i.e. if, there was no suits filed within the 6 months period u/s 6, then
can a suit be filed on the COA of possession and dispossession subsequent to six
month? The court held that even after the expiration of six months period, a suit for
claiming possession can be filed u/s 9 CPC r/w Art 64. The court held that neither sec. 6
nor Art. 64 r/w sec. 9 CPC provides any restriction upon such a suit aad therefore such
a suit shall be allowed as cause of action for both the suits are same.

* Does a suit u/s 6 bar a suit u/s 5? The court held that even after using the remedy
provided under sec. 6 of the Act, a subsequent suit based upon title can be filed u/s 5
of the Act.

Section 16 (c) Plaintiff fails to prove readiness and willingness.

3) Distinction between ‘Readiness’ and ‘Willingness’ (Page 2564 of Mulla):-

the distinction between readiness and willingness, is this that the former has reference
to financial capacity, and latter on the conduct of the plaintiff wanting specific
perfonnance. While willingness is merely mental process, readiness is something to do
with translating that will into action and is preceded by necessary preparation of being
in a position to be ready. In other words, while willingness may be something to do
mainly with a person mental process to do an act, his readiness implies close proximity
of such willingness and its ultimate physical manifestation. Readiness must, in all eases,
be backed by ‘willingness’ and its imminent physical action is demonstrated I when it is
about to be put into action.
Page 2565: The plaintiff, in a suit for specific performance, must set out the
agreement, which the defendant has refused to perform. He must plead that he has
been, and is, still ready and willing to specifically perform his part of the agreement. In
the absence of such allegation, the suit is not maintainable; and before a decree for
specific performance can be given, he must prove his readiness and willingness to
perform his part. This is so, even where the defendant has not appeared, or has not
filed any written statement or has not led any statement.

If the plaintiff fails to aver in the plaint that he was, and is, ready and willing to perform
his part of the contract, he has failed to disclose his cause of action for the relief of
specific performance, and his plaint is liable to be rejected under O VII R 11(a) of the
CPC. Lack of such avennent is fatal in a suit for specific performance of a contract for
sale of immovable property.

Amendment of plaint:
4) Gajanan Jaikishan Joshi Vs. Prabhakar Mohanlal Kalwar [(1990) I SCC 166] {the
Hon’ble Supreme Court bas observed that an application for the amendment of the
plaint, in a suit for specific performance of the contract, is made to introduce the
averment that as to the readines and willingneas of the plaintiff there is no fresh cause
of action sought to be introduced by such amendment. All that the plaintiff seeks to do
is to complete the cause of action for specific performance for which relief he had
already prayed. The court held that by allowing amendment there is no injustice caused
to the other party and thus court must allow amendment for the purpose of adding
avennent regarding readiness and willingness to perform the term of the contract.)

5) Raj Kumar Vs. Dipendra Kaur Sethi (AIR 2005 SC 1592) initiaIly, a suit was filed only
for permanent injunction restraining the defendant from alienating the suit property.
Subsequently, appropriate amendment was allowed to convert the plaint into suit for

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 119

specific performance of contract. However, due to negligence/inadvertence, necessary

pleading that plaintiff was ready and willing to perform his part of the contract could not
be incorporated in the plaint, and so a second amendment application was moved for
incorporating such missing averment. It was held that such an amendment allowed by
the trial court was justified, and did not change original controversy between the
parties, and the defendants suffered no injustice.

Sec 34-35 Sec 34-35

6) Ram Saran Vs. Ganga Devi (AIR 1972 SC 2685) {where the defendant is in
possession of some of the suit properties and the plaintiff in his suit does not seek
possession of those properties but merely claims a declaration that he is the owner of
the suit properties, the suit is not maintainable.)

7) State of MP. Vs. Mangilal Sharma (AIR 1998 SC 743) (held that it is not necessary for
the plaintiff to seek relief of arrears of salary in a suit for declaration, as he may be
satisfied with a mere relief for declaration that he continues to be in service. In the
present suit the plaintiff while seeking relief of declaration would certainly have asked
for other reliefs like the reinstatement, arrears of salary and consequential benefits. He
was however, satisfied with a relief of declaration knowing that the Goverment would
honour the decree and would reinstate him. We will therefore assume that the suit for
mere declaration filed by the respondent-plaintiff is maintainable)

Applicability of resjudicata where Applicability of resjudicata where law is altered since the previous
law is altered since the previous declaratory decree
declaratory decree
8) Shakuntla Devi v Kamla and others (2005)5 SCC 390] {before N. Santosh Hegde,
D.M. Dharmadhikari and S.B. Sinha, JJ.... held-if a suit based on a earlier declaratory
decree and such decree is countray to the law prevailing at the time of its consideration
as to its legality or is a decree granted by a court which has no jurisdiction to grant
such decree, principle of res judicata under section 11 CPC will not be attracted and it is
open to the defendant in such suits to establish that the declaratory decree relied upon
by the plaintiff is not based on a good law or court granthing such decree didn’t have
the jurisdiction to grant such decree.}

Interlocutory mandatory injunction Interlocutory mandatory injunction

9) Dorab, Cawasji Warden v Coomi Sorab Warden (AIR 1990 SC 867) {The court
prescribed the following directions for granting of temporary mandatory injunction:

Since it is a case of doing of a positive act by the defendant which may result into
losses to the defendant. The burden will be greater upon the plaintiff. Firstly he has to
prove a prima facie case in his favour. Apart from this irreparable loss must also be
proved which cannot be compensated by money. He will also has to prove that balance
of convenience highly tilted in his favour.

Temporary mandatory injunction can be passed in very rare cases and in extreme
compelling circumstances where injury to the plaintiff is immediately pressing arid is
likely to result into great hardship to him.

Just because the defendant argues that the grant of mandatory temporary injunction
will result into almost decreeing the suit, the court will not refuse to grant the
injunction.

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 120

THE LIMITATION ACT, 1963

List of Landmark Cases

Sr. Sections/Topics Related Cases

No. (Including Definitions etc.)

` Condonation of delay, section 5

1) Collector, Land Acquisition Anantnag and another Vs. Mst. Katiji and others [(1987) 2
SCC 107] (Courts should adopt a liberal and justice-oriented approach. No
discrimination should be made merely because State seeking Condonation of delay. The
court propounded following principles in this case:

* Ordinarily a litigant does not stand to benefit by lodging an appeal late.

* Refusing to condone delay can result in a meritorious matter being thrown out at the
very threshold and cause of justice being defeated. As againat this when delay is
condoned the highest that can happen is that a cause would be decided on merits after
hearing the parties.

* Everyday’s delay must he explained does not mean that a pedantic approach should
be made. Why not every hour’s delay, eyery second’s delay? The doctrine must be
applied in a rational common sense pragmatic manner.

* When substantial justice and technical considerations are pitted against each other,
cause of substantial justice deserve to be preferred for the other side cannot claim to
have vested right in injustice being done because of a non deliberate delay.

* There is no presumption that delay is occasioned deliberately, or on account of

culpable negligence, or on account of mala fides. A litigant does not stand to benefit by
resorting to delay. In fact he runs a serious risk.

* It must be grasped that judiciary is respected not on account of its power to legalize
injustice on technical grounds but because it is capable of removing injustice and is
expected to do so.

Court should be liberal in Court should be liberal in Condonation of delay

Condonation of delay 2) Ram Nath Sao Vs. Gobardhan Sao (AIR 2002 SC 1201) (It was held by the Hon’ble
Supreme Court that the expression “sufficient cause” within the meaning of secton 5
should receive a liberal construction so as to advance substantial justice when no
negligence or gross negligence or lack of bona fides is imputable to the party. What is
“sufficient cause” depends on the facts and circumstances of each case. There cannot
be a straighacket formula for accepting or rejecting explanation furnished for the delay.
But the court should not proceed with a tendency of finding fault with the cause shown
and reject the petition by a slipshod in over jubilation of disposal drive. Acceptance of
explanation furnished should be the rule and refusal an exception, more so, when no
negligence or inactive or lack of bonafide.s can be imputed to the defaulting party.

Length of delay is immaterial in Length of delay is immaterial in Condonation of delay.

Condonation of delay 3) N. Balakrishnan Vs. M.Krishnamurthy (AIR 1998 SC 3222) (the SC made the following
observations:

* Condonation of delay is a matter of discretion of the court. Section 5 does not say
that such discretion can be exercised only if delay is within a certain limit.

* Length of the delay is no matter; acceptability of the explanation is the only criterion.
* Sometimes delay of the shortest range may be uncondonable due to want of
acceptable explanation, whereas in certain cases delay of very long range can be
condoned as the explanation thereof is satisfactorily.
* If the explanation does not smack of mala fides or is not put forward as a part of
delivery strategy the court must show utmost consideration to the suitor.

Death or illness is a proper ground Death or illness is a proper ground

4) Ramlal v Rewa Coal Field Limited (1962 SC) {held that if the party was ill or met with
an accident on the last date of limitation, that may be a proper ground for Condonation
of delay even if the party is proved to have negligent on the earlier date)

Applicability of sec 5 of Limitation Applicability of sec 5 of Limitation Act on an application for setting aside
Act on an application for setting arbitral award
aside arbitral award 1) Union of India v M/s Popular construction Co. (AIR 2001 SC 4010) {Held that the
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provisions of S. 5 Limitation Act 1963 are not applicable to to an application challenging

an award, under S. 34 and as such there was no scope for assessing sufficiency of the
cause for the delay beyond the period prescribed in proviso to S.34. The crucial words
in S. 34 are ‘but not thereafter’ used in the proviso to sub-section(3). This phrase would
amount to an express exclusion with the meaning of S. 29(2) of the Limitation Act, and
would therefore bar the application of S.5 of that Act. Parliament did not need to go
further. To hold that the Court could entertain an application to set aside the Award
beyond the extended period under the proviso, would render the phrase but not
thereafter’ wholly otiose. Apart from the language express exclusion may follow from
the scheme and object of the special or local law. The history and scheme of the 1996
Act support the conclusion that the time limit prescribed under S.34 to challenge an
Award is absolute and unextendable by Court under S.5 of the Limitation Act. The
Arbitration and Conciliation Bill, 1995 which preceded the 1996 Act stated as one of its
main objectives the need ‘to minimise the supervisory role of courts in the arbitral
process. This objective has found expression in S.5 of the Act which prescribes the
extent of judicial intervention in no uncertain terms. The ‘Part referred to in S.5 is Part I
of the 1996 Act which deals with domestic arbitrations. S.34 is contained in Part I and is
therefore subject to the sweep of the prohibition contained in S.5 of the 1996 Act.

By virtue of S.34 (1), recourse to the court against an arbitral award cannot be made
beyond the period prescribed. The importance of the period fixed under S.34 is
emphasised by the provision of S.36. It is a significant departure from the provisions of
the Arbitration Act 1940. Under the 1940 Act, after the time to set aside the award
expired, the court was required to “procd to pronounce judgment according to the
award and upon the judgment so pronounced a decree shall follow”. Now the
consequence of time expiring under S.34 of the 1996 Act is that the award becomes
immediately enforceable without any further act of the Court. If there were any residual
doubt on the interpretation of the language used in S.34, the scheme of the 1996 Act
would resolve the issue in favour of curtailment of the court’s powers by the exclusion
of the operation of S.5 of the Limitation Act)

Sec. 6 and 8 Sec. 6 and 8

5) Darshan Singh and others Vs. Gurdev Singh [(1994)6 SCC 585]

6) Bailochan Karan Vs. Basant Kumari Naik [(1999) 2 SCC 310) (the combined
effect of sections 6, 7 & 8 is that law allows maximum of 3 years from statutable cause
of action or the full period from the ordinary starting point of limitation whichever is
more advantageous to the plaintiff.

Sec. 12
7) State of U.P. Vs. Maharaj Narain and others (AIR 1968 SC 960) {whenever a
person has applied for copy of the decree for more than one occasion then he is free to
file that copy of decree which has taken maximum time. It is held by the court that it is
not required under sec. 12(2) that the copy of the decree for which shortest time has
en taken by the court should be filed. Appellant can file copy of decree which has taken
longest time.)

8) Udayan chinubhai Vs. R.C. Bali [(1977) 4 SCC 309] {held that under sec.
12(2) read with Explanation a person cannot get exclusion of the period that elapsed
between the pronouncement of judgement and the signing of the decree if he made the
application only after the preparation of the decree}

Sec 14 Sec 14
9) J. Kumaradasan Nair and another Vs. Iric Sohan and others [(2009 12 SCC
175, Judgment by S.B Sinha, J] (Facts of the case: The first respondent obtained a
decree in a suit wherein it was directed was entitled for a declaration of title and
possession over the plaint scheduled property. The said decree was put in execution by
the decree holder who died on 28-3-1985. Respondents 1-5 herein, being his heirs and
legal representatives were impleaded as additional decree holders 2-6 therein. The said
execution petition was dismissed. The judgment debtor had another decree passed in
another suit and petition was filed for execution of the said decree. A sale certificate
was issued in respect of the suit property. It is said to have been charged towards the
satisfaction of the debt sought to be recovered in another suit filed by State Bank of
Travancore. The appellant purchased the said property in auction.

Respondents 1-5, however, filed a second execution petition in which the appellants
were impleaded as respondents 16 and 17 therein. They filed an objection in regard to
the maintainability of the said execution petition, inter alia, contending that the same
was barred by limitation. The objection petition was rejected. An appeal preferred there
against was held to be not maintainable by the first appellate court. However, the merit
of the matter was also considered therein The appellants preferred an execution second

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appeal before the Hon’ble High Court which opined that the first appellate court was not
corred in entering into the merit of the matter despite holding that the appeal was not
maintainable. A revision application was filled by the appellant along with the said
application; an application for condonation of delay in terms of section 5 of the Act was
also filed. However, later on the said application was withdrawn and an application
under section 14 thereof was filed. The Hon’ble High Court opined that section 14 of the
Limitation Act was not attracted in the facts and circumstances of the case and
dismissed the application as barred by limitation.

Allowing the appeal, the Supreme Ceurt held : Only because a mistake has been
committed by or on behalf of the appellants in approaching the appropriate forum for
ventilating their grievances, the same would not mean that section 14(2) of the
Limitation Act, which is otherwise available, should not he taken into consideration at
all.

The provisions contained in section 5 and 14 of the Limitation Act are meant for grant
of relief where person has committed some mistake. The provisions of section 5 and 14
of the Limitation Act alike should thus be applied in a broad based manner. When sub-
section (2) of section 14 the Limitation Act per se is not applicable, the same would not
mean that the principles akin thereto would not be apptied. Otherwise the provision of
section 5 of the Limitation Act would apply. There cannot be any doubt whatsoever that
the same would be applicable to a case of this nature.

There cannot furthermore be any doubt whatsoever that having regard to the definition
of suit as contained in section 2(1) of the Limitation Act a revision application will not
answer the said description. But, although the provisions of Section 14 of the Limitation
Act per se are not applicable, the principles thereof would be applicable for the purpose
of condonation of delay in filing an appeal or a revision application in terms of section 5
thereof.

It is also now a well-settled principle of law that mentioning of a wrong provision or non
mentioning of any provision of law would, by itself, be not sufficient to take away the
jurisdiction of a court if it is otherwise vested in it by law.

10) Consolidated Engineering Enterprise Vs. Irrigation Department ((2008) 7 SCC l69)
{the court in this case has enumerated the essential ingredient of seetion 14. The court
also held that the words any other cause of a like nature’ has to be given the meaning
‘ejusdem generis’ i.e. such other cause also shall have the same essence as the ‘lack of
jurisdiction’. Any defect which can be a ground for a technical objection on the basis of
which the court may refused to entertain the suit, appeal or revision will be come under
‘cause of a like nature’.

11) ZafarKhan Vs. Board of Revenue, UP. & others (1984 SC) {held that it is essential
for sec.14(2) to apply that the application was rejected on the ground of lack of
jurisdiction or any other similar cause. If it is rejected on the ground that particular
application does not lie, in that case then it will not be a case of sec. 14.)

12) Deena Vs. Bharat Singh (AIR 2002 SC 2768, D.P. Mohapatra and K.G. Balakrishnaa,
JJ) (Speaking through Mohapatra, J., the court enunciated the essential ingredients of
section 14 as: follows: (1) Both the prior and subsequent proceedings are civil
proceedings prosecuted by the same party (2) the prior proceeding had been
prosecuted with due diligence and good faith:, (3) the failure of the prior proceeding
was due to defect of jurisdiction or other cause of like nature: (4) the earlier proceeding
and the later proceeding must relate to the same matter in issue, and (5) both the
proceedings are in a Court.

Facts of the case: In the instat case the round on which withdrawal of the suit was
sought was that a necessary party, had not been impleaded in the suit. It is not the
case of the plaintiffs that the Court had found the suit to be not maintainable on that
ground. Non-impleadment of a necessary party, in the suit was a clear case of laches on
the part of the plaintiffs. In such circumstances it could not be said that the plaintiffs
were prosecuting the previous suit in good faith. More so, when objections regarding
non-joinder of necessary party were taken by defendant since initial stage. Despite that
plaintiffs took risk of prosecutmg the suit without impleading necessary party. Indeed
they succeeded tn the trial Court and the matter was pending before the first appellate
Court when the petition under O. 23 seeking withdrawal of the suit with permission to
file a fresh suit for the same relief was filed by them. Therefore, the trial Court and the
first appellate Court were right in holding that the plaintiff were not entitled to exclusion
of the period of pendency of first suit under S.14 of the Limitation Act as claimed and
that the suit was barred by limitation.

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Meaning of the term ‘other cause of the like nature’: The expression “defect of
jurisdiction” in S.14 on a plain reading means the Court must lack jurisdiction to
entertain the suit or proceeding. The circumstances in which or the grounds on which,
lack of jurisdiction of the Court may be found are not enumerated in the section. It is to
be kept in mind that there is a distinction between granting permission to the plaintiff to
withdraw the suit with leave to file a fresh suit for the same relief under O. 23, R. I and
exclusion of the period of pendency of that suit for the purpose of computation of
limitation in the subsequent suit under S.14 of the Limitation Act. The words “or other
cause of a like nature” are to be construed ejusdem generis with the words “defect of
jurisdiction,” that is to say, the defect must be of such a character as to make it
impossible for the Court to entertain the suit or application and to decide it on merits.
Obviously S. 14 will have no application ma case where the suit is dismissed after
adjudication on its merits and not because the Court was unable to entertain it.
Therefore, where suit was decided on merits and the plaintiff sought to withdraw the
suit with permission to file fresh suit on same cause of action in an appeal filed by
defendant against decree passed in favour of plaintiff in that suit, the provisions of S.
14 would not apply.

Sec. 18 Sec. 18
13) Shapoor Freedom Mazda Vs. Durga Prasad (AIR 1961 SC 1236) {Speaking
through Gajendragadkar J., the court held that acknowledgment as prescribed by
section 19 (presently section 18 under 1963 Act) merely renews debt, it does not create
a new right of act. It is a mere acknowledgment of the liability in respect of the right in
question, it need not accompanied by promise to pay either expressly or even by
lmplication. The statement on which a plea of acknowledgment is based must relate to
a present subsisting liability though the exact nature or the specific character of the said
liability may not be indicate in words. Words used in the acknowledgment must indicate
the existence of Jural relationship between the parties and it must appear that the
statement is made with the intention to admit such jural relationship. According to the
court for a valid acknowledgment following conditions must be fulfilled:

a) Acknowledgment must be made before the limitation period expires.

b) It must be in writing. An oral acknowledgment can’t renew the limitation period.

c) The acknowledgment must be signed by the person making it or his authorized

agent.

d) The acknowledgment must be made by the person against whom claim of any right
or property exists or by any person through whom he derives title or liability.

e) Acknowledgment must be made with respect to the particular property or right

claimed in the suit or application.

14) Tilak Ram and others Vs. Nathu and others (AIR 1967 SC 935, K. Subba
Rao, CJI and J.M. Shelat, J) (speaking through Shelat, J. court held that whenever a
statement is relied upon as expressing a jural relationship, it must show that it was
made with the intention of admitting such relationship at the time when it was made.
The real test for acknowledgement apart from the above element is the intention to
admit the relationship i.e. the liability.) -

Section 21 Section 21
15) Karuppaswamy and others Vs. C. Ramamurthy (AIR 1993 SC 2324) (Read
page no 191 of J.D Jain)

Section 27 Section 27
16) State of Haryana Vs. Mukesh Kumar and others (decided on 30-09-2011,
Dalveer Bhandari and Deepak Verma, JJ] (The court speaking through Dalveer
Bhandari observed that there is an urgent need for a fresh look of the entire law on
adverse possession. The court recommended the Union of India to immediately consider
and seriously deliberate either abolition of the law of adverse possession or in the
alternative to make suitable amendments in the law of adverse possession. The court
recommended the following amendment in the law of adverse possession as enshrined
in section 27 of the Limitation Act, 1963:

* The law of adverse possession should be changed with the effect that those ‘who
adversely possesses land to compensate title owners according to the prevalent market
rate of the land or property in question.
* Baith faith adverse possession i.e. adverse possession achieved through intentional
trespassing should be abolished.
* The period of 12 years must be enhanced to 30-50 years.

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17) Hemaji Waghaji Jat Vs. Bhikabhai Khengcrbhai Harijan ((2009) 16 SCC
517, Dalveer Bhandari and Harjit Singh Bedi, JJ] speaking through Dalveer
Bhandari, J., recommended to the Union Government that law on adverse possession
needs change as it puts premium on dishonesty by legitimizing possession of a rank
trespasser on the land at the cost of the rightful owner.

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 125

THE ARBITRATION AND CONCILIATION ACT, 1996

List of Landmark Cases

Sr. Sections/Topics Related Cases

No. (Including Definitions etc.)
Section 3 Section 3
2) Union of India Vs. Tecco Tricky Engineers and Contractors (MANU/ SC/ 0214/
2005; AlR 2005 SC 1832)

3)Kailash Rani Dang v Rakesh Bala Aneja (2009) 1 SCC 732}

Section 2(2) section 9 i.e. whether Section 2(2) section 9 i.e. whether Part I of the Act apply to International commercial
Part I of the Act apply to arbitration which takes place out of India?
International commercial arbitration
which takes place out of India? 4. Bhatia International v Bulk Trading S.A. (AIR 2002 SC 1432, 3 Judge Bench
G.B Pattanaik, S.N Phukan and S.N Variava, JJ) {held that the provisions of Part 1
would apply to all arbitrations and to all proceedings relating thereto. Where such
arbitration is held in india the provisions of Part I would compulsory apply and parties
are free to deviate only to the extent permitted by the derogable provisions of Part I. In
cases of intemational commercial arbitrations held out of India provisions of Part would
apply unless the parties by agreement express or implied exclude all or any of its
provisions. Thus even if international commercial arbitration is held out of India, the
Court in India has power to grant interm measures under section 9 of the Act.

Section 11(6) i.e whether Section 11(6) i.e whether appointment by chief Justice is administrative
appointment by chief Justice is function or Judicial function?
administrative function or Judicial
function? 5. S.B.P. and Co. v Patel Engineering Ltd (AIR 2006 SC 450 7 Judge Bench)
(Majority view:- (Per P.K Balasubramanyan J (For himself and on behalf of R.C Lahoti
C.J.I 31 B.N.Agrawal, Arun Kurnar, G.P.Mathur and A.K.Mathur, JJ.)

i) The power exercised by the Chief Justice of the Hon’ble High Court or the Chief
Justice of India under Section 11(6) of the Act is not an administrative power. It is a
judicial power.

ii) The power under Section 11(6) of the Act in its entirety, could be delegated, by the
chief Justice of the Hon’ble High Court only to another judge of that court and by the
chief justice of India to another judge of the Hon’ble Supreme Court.

(iii) In case of designation of a judge of the Hon’ble High Court or of the Hon’ble
Supreme Court, the power that is exercised by the designated, judge would be that of
the Chief Justice as conferred by the statute.

(iv) The Chief Justice or the designated judge will have the right to decide the
preliminary aspects as indicated in the earlier part of this judgment. These will be, his
own jurisdiction, to entertain the request, the existence of a valid arbitration
agreement, the existence or otherwise of a live claim, the existence of the condition for
the exercise of his power and on the qualifications of the arbitrator or arbitrators. The
Chief justice or the judge designated would be entitled to seek the opinion of an
institution in the matter of nominating anarbitor qualified in tems of Section 11(8) of the
Act if the need arises but the order appointing the arbitrator could , only be that of the
Chief Justice or the judge designate

(v) Designation of a district judge as the authority under Section 11(6) of the Act by the
Chief Justice of the Hon’ble High Court is not warranted on the scheme of the Act.

(vi) Once the matter reaches the arbitral tribunal or the sole arbitrator, the Hon’ble High
Court would not interfere with orders passed by the arbitrator or the arbitral tribunal
during the course of the arbitration proceedings and the parties could approach the
court only in terms of Section 37 of the Act or in terms of Section 34 of the Act

(vii) Since an order passed by the Chief Justice of the Hon’ble High Court or by the
desigpated judge of that court is a judicial order an appeal will lie against that order
only under Article 136 of the Constitution of india to the Hon’ble Supreme Court.

(viii) There can be no appeal against an order of the Chief Justice of lndia or a judge of
the Hon’ble Supreme Court designated by him while entertammg an application under
Section 11(6) of the act.

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(ix) In a case where an arbitral tribunal has been constituted by the parties without
having recourse to Section 11(6) of the Act, the arbitral tribunal will have the
jurisdiction to decide all matters as contemplated by Section 16 of the Act.

(x) Since all were guided by the decision of this Court in Konkan Railway Corpn. Ltd.
and Anr. Vs. Rani Construction Pvt. Ltd. [(2002)2 SCC 388] and orders under Section
11(6) of the Act have been made based on the position adopted in that decision, we
clarify that appointments of arbitrators or arbitral tribunals thus far made, are to be
treated as valid, all objections being left to be decided under Section 16 of the Act. As
and from this date, the position as adopted in this judgment will govern even pending
applications under Section 11(6) of the Act.

(xi) Where District Judges had been designated by the Chief Justice of the Hon’ble High
Court under Section 11(6) of the Act, the appointment orders thus far made by them
will be treated as valid; but applications if any pending before them as on this date will
stand transferred, to be dealt with by the Chief Justice of the concerned High Court or a
Judge of that court designated by the Chief Justice.

(xii) The decision in Konkan Railway Corpn. Ltd. and Anr. Vs. Rani Construction Pvt. Ltd.
[(2002) 2 SCC 3883 is overruled.

Minority opinion delivered by C.K. Thakkar, J. According to him:

i) The function performed by the Chief Justice of the Hon’ble High Court or the Chief
Justice of India under sub-section (6) of Section 11 of the Act (i.e. Arbitration and
Conciliation Act, 1996) is administrative, -pure and simple-, and neither judicial nor
quasi-judicial.

(ii) The function to be performed by the Chief Justice under sub-section (6) of Section
11 of the Act may be performed by him or by ‘any person or institution designated by
him’.

(iii) While performing the function under sub-section (6) of Section 11 of the Act, the
Chief Justice should he prima facie satisfied that the conditions laid down in Section 11
are satisfied.

(iv) The Arbitral Tribunal has power and jurisdiction to rule ‘on its own jurisdiction’
under sub-section (1) of Section 16 of the Act.

(v) Where the Arbitral Tribunal holds that it has jurisdiction, it shall contimic with the
arbitral proceedings and make an arbitral award.

(vi) A remedy available to the party aggrieved is to challenge the award in accordance
with Section 34 or Section 37 of the Act.

(vii) Since the order passed by the Chief Justice under subsection (6) of Section 11 of
the Act is administrative, a Writ Petition under Article 226 of the Constitution is
maintainable. A Letters Patent Appeal/Intra-Court Appeal is competent. A Special Leave
Petition under Article 136 of the Constitution also lies to this Court.

(viii) While exercising extraordinary jurisdiction under Article 226 of the Constitution,
however, the Hon’ble High Court will be conscious and mindful of the relevant
provisions of the Act, including Sections 5, 16, 34 to 37 as also the object of the
legislation and exercise its power with utmost care, caution and circumspection.

(ix) The decision of the Constitution Bench in Konkan Railway Corporation Ltd. II, to the
extent that it held the function of the Chief Justice under sub-section (6) of Section 11
of the Act as administrative is in consonance with settled legal position and lays down
conect law on the point.

(x) The decision of the Constitution Bench in Konkan Railway Corporation Ltd. II, to the
extent that it held clause 7 of “The Appointment of Arbitrators by the Chief Justice of
India Scheme, 1996’ providing for issuance of notice to affected parties as beyond the
term of Section 11” and bad on that ground is not in accordance with law and does not
state the legal position correctly.

(xi) Since the Chief Justice is performing administrative function in appointing an

Arbitral Tribunal, there is no ‘duty to act judicially’ on his part. The doctrine of ‘duty to
act fairly’, however, applies and the Chief Justice must issue notice to the person or
persons likely to be affected by the decision under sub-section (6) of Section 11 of the
Act.
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6. Konkan Railway Corporation Ltd V Rani Construction Pvt Ltd (AIR 2002 SC
778, 5 Judge Bench {ln this case the court has affirmed the Judgment of Konkan
Railway Corp v Mehul Construction Co.(AIR 2000 SC 2821, 3 Judge Bench) and held
that the order of the Chief Justice or his designate under S. II nominating an arbitrator
is not an adjudicatory order and the Chief Justice or his designate is not a
tribunal. Such an order cannot properly be made the subject petition for special leave to
appeal under Art. 136.

Section 34 Section 34
7) Oil and Natural Gas Corporation Ltd. Vs. Saw Pipes Ltd. (AIR 2003 SC
2629) {held that if the award is contrary to the subtantive provisions of law or the
provisions of the Act or against the terms of the contract, it would be patently illegal,
which could be interfered under 5.34. However, such failure of procedure should be
patent affecting the rights of the parties.

On “public policy”: the court held as follows:

The phrase ‘public policy of India’ used in S.34 in context is required to be given a wider
meaning. It can be stated that the concept of public policy connotes some matter which
concerns public good and the public interest. What is for public good or in public
interest or what would be injurious or harmful to the public good or public interest has
varied from time to time. However, the award which is, on the face of it, patently in
violation of statutory provisions cannot be said to be in public interest. Such
awar/judgment/decision is likely to adversely affect the administration of justice. Hence,
in our view in addition to narrower meaning given to the term ‘public policy in
Renusagar’s case (supra), it is required to be held that the award could be set aside if it
is patently illegal. Result would be - award could be set aside if it is contrary to:-
(a fundamental policy of Indian law; or
(b) the interest of India; or
(C) justice or morality, or
(d) in addition, if it is patently illegal.

Illegality must go to the root of the matter and if the illegality is of trivial nature it
cannot be held that award is against the public policy. Award could also be set aside if it
is so unfair and unreasonable that it shocks the conscience of the Court. Such award is
opposed to public policy and is required to be adjudged void.

8) Venture Global Engineering V Satyam Computer Services Ltd. [AIR 2008

SC 1061, (2008) 4 SCC 190] {the court after relying upon Bhatia International
(supra) held that under section 34 of the Arbitration and Conciliation Act, 1996 the
court can examine the validity of international awards.)

9) Venture Global Engineering V Satyam Computer Services Ltd AIR 2010 SC

3371, decided on 11-08-2010) {held that facts which surfaced subsequent to the
making of the award, but have a nexus with the facts constituting the award can be
made a ground of setting the aside the arbitral award. This Court also holds that the
facts concealed must have a causative link. And if the concealed facts disclosed after
the passing of the award, have a causative link with the facts constituting or inducing
the award such facts are relevant in a setting aside proceeding and award may be set
aside as affected or induced by fraud.)

Applicability of sec 5 of Limitation Applicability of sec 5 of Limitation Act on an application for setting aside
Act on an application for setting arbitral award.
aside arbitral award.
10) Union of India Vs. M/s. Popular Construction Co. (AIR 2001 SC 4010)
{Held that the provisions of S. 5 Limitation Act, 1963 are not applicable to an
application challenging an award, under S. 34 and as such there was no scope for
assessing sufficiency of the cause for the delay beyond the period prescribed in proviso
to S.34. The crucial words in S.34 are ‘but not thereafter’ used in the proviso to sub-
section (3). This phrase would amount to an express exclusion within the meaning of S.
29(2) of the Limitation Act, and would therefore bar the application of S.5 of that Act.
Parliament did not need to go further. To hold that the Court could entertain an
application to set aside the Award beyond the extended period under the proviso, would
render the phrase’ but not thereafter’ wholly otiose. Apart from the language, ‘express
exclusion’ may follow from the scheme and object of the special or local law. The
history and scheme of the 1996 Act support the conclusion that the time limit
prescribed under S.34 to challenge an Award is absolute and unextendable by Court
under S.5 of the Limitation Act. The Arbitration and Conciliation Bill, 1995 which
preceded the 1996 Act stated as one of its main objectives the need ‘to minimise the

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 128

supervisory role of courts in the arbitral process. This objective has found expression in
S.5 of the Act which prescribes the extent of judicial intervention in no uncertain tems.
The ‘Part’ referred to in S. 5 is Part I of the 1996 Act which deals with domestic
arbitrations. S.34 is contained in Part I and is therefore subject to the sweep of the
prohibition contained in S. 5 of the 1996 Act.

By virtue of S.34 (1), recourse to the court against an arbitral award cannot be made
beyond the period prescribed. The importance of the period fixed under S.34 is
emphasised by the provision of S.36, It is a significant departure from the provisions of
the Arbitration Act 1940. Under the 1940 Act after the time to set aside the award
expired, the court was required to ‘proceed to pronounce judgment according to the
award and upon the judgment so pronounced a decree shall follow”. Now the
consequence of the time expiring under S.34 of the 1996 Act is that the award becomes
immediately enforceable without any further act of the Court. If there were any residual
doubt on the interpretation of the language used in S.34, the scheme of the 1996 Act
would resolve the issue in favour of curtailment of the court’s powers by the exclusion
of the operation of S.5 of the Limition act.

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THE REGISTRATION ACT, 1908

List of Landmark Cases

Sr. Sections/Topics Related Cases

No. (Including Definitions etc.)
Meaning of “execution of document” Meaning of “execution of document”
1) Central warehousing Corporation Vs. The Registrar for registration, 1990
(1) P.L.R. 571 (It was observed that “the execution shall mean that the deed was
executed with all the formalities necessary for its completion. The execution includes a
process which is to be gone through to complete a document.)

Sec 17 Sec 17
2) United Bank of India Ltd Vs. Lakhram Sonaram & Co (AIR 1965 SC 1591) (held that a
deposit of title deeds with creditor by the debtor with the intent to create a security
implies in law a contract between the parties to create a mortgage and no registered
instrument is required under section 59 of the Transfer of Property Act as in other case
of mortgage. But if the parties choose to reduce the contract in writing, this implication
of law is excluded by their express bargain and the document will be the sole evidence
of its terms. In such a case the deposit and the document both form integral parts of
the transaction and are essential in the creation of the mortgege. In such a case the
document which constitute the bargain regarding security requires registration under
section 17 of the Act as a non testamentary instrument creating interest in immovable
property where the value is Rs 100 or upwards)

3) Siromani v Hemkumar (AIR 1968 SC 1299) (held that an instrument of partition of

immovable property requires registration as it declares an interest in immovable
property provided, however, the value of the interest so declared is Rs 100 or upwards)

4) Kale Vs. Deputy Director of Consolidation (AIR 1976 SC 807) (The Court held as
follows: ‘The family arrangement may be even oral in which case no registration is
necessary. The registration would be necessary only if the terms of the family
arrangement are reduced into writing. Here also, a distinction should be made between
a document containing the terms and recitals of a family arrangement made under the
document and a mere memorandum prepared after the family arrangement had already
been made either for the purpose of the record or for information of the Court for
making necessary mutation. In such a case the memorandum itself does, not create or
extinguish any rights in immovable properties and is, therefore, not compulsorily
registrable.”}

5) Roshan Singh Vs. Zile Singh (AIR 1998 SC 881) (It is well-settled that while an
instrument of partition which operates or is intended to operate as a declared volition
constituting or severing ownership and causes a change of legal relation to the property
divided amongst the parties to it, requires registration under S. l7(l)(b) of the Act, a
writing which merely recites that there has in time past be a partition, is not a
declaration of will, but a mere statement of fact, and it does not require registration The
essence of the matter is whether the deed is a part of the partition transaction or
contains merely an incidental recital of a previously completed transaction. The use of
the past tense does not necessarily indicate that itis merely a recital of a past
transaction. It is equally well-settled that a mere list of properties allotted at a partition
is not an instrument of partition and does not require registration. Section 17(1) (1,)
lays down (that a document for which registration is compulsory should, by its own
force, operate or purport to operate to create or declare some right in immovable
property. Therefore, mere recital of what has already taken place cannot be held to
detire any right and there would be no necessity of registering such a document. Two
propositions must therefore flow; (1) A partition may be effected orally: but if it is
subsequently reduced hito a form of a document and that document purports by itself
to effect a division and embodies all the terms of bargain, it will be necessary to register
it. If ins not registered, S.49 of the Act will prevent its being admitted in evidence.
Secondly evidence of the factum of partition will not be admissible by reason S.91 of
the Evidence Act, 1872. (2) Partition lists which are mere records of a previously
completed partition between the parties will be admitted in evidence even though they
are unregistered, to prove the fact of partition.

Partition, unlike the sale or transfer which consists in its essence of asingle act, is a
continuing state of facts. It does not require any formality, and, therefore, if parties
actually divide their estate and agree to hold in severalty, there is an end of the matter.

The true principle that emerges can be stated thus: if the arrangement of compromise
is one under which a person having an absolute title to the property transfers his title in
some of the items thereof to the others, the formalities prescribed by law have to be

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 130

complied with, since the transferces derive their respective title through the transferor.
If, on the other hand, the parties set up competing titles and the differences are
resolved by the compromise, there is no question of one deriving title from the other,
and therefore, the arrangement does not fall within the mischief of S. 17 read with S.
49 of the Registration Act as no interest in property is created or declared by the
document for the first time.}

Divesting of the right in adoption Divesting of the right in adoption

6. Dina Ji Vs. Daddi (AIR 1990 SC 1153) {While deciding on a question related with
sections 12 and 13 of the Hindu Adoption and Maintenance Act and section 170) (b) of
the Registration Act, the Court observed as: “Proviso (C) of 5.12 departs from the Hindu
General Law and makes it clear that the adopted child shall not divest any person of
any estate which has vested in him or her before the adoption. It is clear that iii the
present case, the widow who was the limited owner of the property after the death of
her husband and after Hindu Succession Act came into force, has become an absolute
owner and therefore the property of her husband vested in her and therefore merely by
adopting a child she could not be deprived of any of her rights in the property. The
adoption would come into play and the adopted child could get the rights for which he
is entitled after her death as is clear from the Scheme of S. 12 proviso (C). Section 13
enacts that when the parties intend to limit the operation of proviso (C) to S. 12, it is
open to them by an agreement and it appears that what she included in the deed of
adoption was an agreement to the contrary as contemplated in S. 13 of the Act. Section
17(1) (b) of the Registration Act clearly provides that such a document where any right
in immovable property is either assigned or etnguiahed will require registration. It could
not be duted that this part of the deed which refers to creation of an immediate right in
the adopted son and the divesting of the rigit of the adoptive mother in the property
will squarely fall within, the ambit of 5. 17(1) (b) and therefore under S 49 of the
Registration Act, this could not be admitted since it is not registered document.
Therefore the alienation of immovable property by the widow was not illegal.}

Sec. 47
7) K.J. Nathan Vs. Maurthi Rao (AIR 1965 SC 430) {held that u/s 47 a registered
document operates from the date of its execution and not from the date its registration.
The result is that if two registered documents arteeuted by the same person in respect
of the same property to dfferent persons at different times the one which was executed
‘first has priority over the other, although the former was registered subsequently to
later.

Evidence of any collateral transaction

8) K.B. Saha & Sons Pvt. Ltd Vs. M/s Development Consultant Ltd. (2008 SC,
decided on May 12, 2008 A.K. Mathur and Tarun Chatterjee, JJ) {held as
follows:
* A document required to be registered is not admissible into evidence under section 49
of the Act.
* An unregistered document can be used as an evidence of collateral purposes as
provided by proviso of sec. 49.
* A collateral transaction must be independent of or divisible from the transaction to
effect which the law requires registration.
* A collateral transaction must be a transaction not itself required to be effected by a
registered document.
* If a document is inadmissible in evidence for want of registration, none of its terms
can be admitted in evidence and that to use a document for the purpose of proving an
important clause would not be using it as a collateral purpose.

9) Hari Lal Vs. Amrik Singh (AIR 1978 All) {a partition which requires to be
effected by a registered instrument may be (if unregistered) inadmissible to prove
partition but the severance of joint status which is not required to be effected by
registration can be proved as evidence of collateral transaction. An antecedent title. the
nature and character of possession, an admission of an acknowledgment, relationship of
parties and their state of mind may be some of the instances of collateral Purpose for
which a document requiring registration may be looked into even it is not registered.

10) Roshan Singh Vs. Zile Singh (AIR 1998 SC 881) {held that the document
though unregistered can however be looked into for the limited purpose of establishing
a severance in status, though that severance would ultimately affect the nature of the
possession held by the members of the separated family as co-tenants}

Rival deeds must be antagonistic u/s 50 11) Subhag Chand Vs. Bhai Chand (Bom HC) {heId, that sec. 50 applies where the two
documents are antagonistic e both- document cannot be given effect.

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 131

Same nature of transaction not required 12) Sirish Chandra v Mungri (Cal HC) { a registered document is entitled to priority over
an unregistered document whether the both transactions should be of the same nature
or not. Thus a registered deed of sale may be entitled to priority over an unregistered
deed of mortge and gift.

Section 77 i.e. Suit in case of order Section 77 i.e. Suit in case of order of refusal to register
of refusal to register
13) Kalavakurti Venkata Subbaiah Vs. Bala Gurappagari Guruvi Reddy (AIR 1999 SC
Note: In 1999 DJS, a question was 2958) {held that Suit for specific performance of contract by way of registration of sale
asked on this case. deed, is maintainable notwithstandrng alternative remedy under S. 77 of Registration
Act to obtain registration of executed document.

The analysis of the provisions of S. 77 of the Act would indicate that it would apply only
if a matter is pertaining to régitation of a document and not for a comprehensive suit as
in the instant case where the relief prayed for is directing the defendant- to register the
sale deed in favour of the plaintiff in respect of the plaint schedule property and if he so
fails to get a registration in favour of the plaintiff for permanent injunction or in the
alternative for delivery of possession of the plaint schedule mentioned property. The
document has not been presented by the respondent to the Sub-Registrar at all for
registration although the sale deed is stated to have been executed by the appellant as
he refuses to co-operate with him in that regari Therefore, various stages contemplated
under S.77 of the Act have not arisen at all. In such a case when the vendor declines to
appear before the Sub- Registrar, the situation contemplated under S.77 of the Act
would arise. It is only on presentation of a document the other circumstances would
arise. Under S. 49 of the Act the sale deed could be received in evidence to prove the
agreement between the parties though it may not itself constitute a contract to transfer
the property. It was a comprehensive suit including areliefforspecific performance of a
contract contained in the sale deed executed, but not registered and, therefore, relief
for specific performance could be granted.}

-----O----

Questions related to Registration Act, 1908

# Whether the following types of leases of immovable property require registration?

Give reasons:
a) A lease for year to year
b) A lease for six months
c) A lease for any term exceeding one year
d) A lease which is for one year contains an option to the tenant to renew for period of
one year 1996 Haryana

# What are the documents of which registration is compulsory? 1998 Haryana

# Who can present a document for registration? 1998 Haryana

# Mention the document of which registration is optional. 1998 Haryana

# What is time limit for presenting a document for registration? 1998 Haryana

# Discuss the duties and powers of Registrat tinder the Registration Act. What is the
procedure for admitting the document to registration? 1999 Haryana

# A deposits the title deeds of his property with ‘B to secure payment of a loan made to
him by B’ A’ then executes a legal mortgage of the same property to ‘C The mortgage
deed to ‘C is duly registered. Is ‘C entitled to priority over ‘B? Decide with the help of
relevant provisions of the Registration Act and refer to decided cases. 1999 Haryana

# Discuss the effect of non registration of documents under Indian Registration Act.
Refer to decided cases 1999 Haryana

# ‘A’ a Muslim executes a deed of gift of his property to ‘B’, but the gift is not
accompanied by delivery of possession. ‘A’ subsequently executesa deed of gift of the
same property to ‘C’ and the gift is accompanied by delivery of possession Both the
deeds are registered. Is ‘B entitled to the prionty’? In this regard discuss the relevant
provisions of the Registration Act. 1999 Haryana

# Is a will required to be compulsonly registered under Indian Registration Act? Discuss

the effect of non registration of will? 2000 Haryana

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# What are the special duties and controlling powers of the Registrar under the Indian
Registration Act? 2001 Haryana

Ans. Secs 64 and 65 talks about special duties of sub registrar whereas sec. 66 provides
for special duties of registrar. Section 68 talks about controlling powers of registrar.

# What are the different documents for which registration is compulsory? Mohd. Yashin
gifted his dwelling house to his wife orally. Both were residing in the house. After one
year, he executed a deed stating the fhct of gift of the house to his wife. The deed was
not registered. Whether gift was valid? 2003 Haryana

# What are the effects of non registration? 2003 Haryana

# Discuss if a deed of dower by a Muslim husband I favour of his wife transferring to
her immovable property of the value of Rs. 10,000 in lieu of satisfaction of the dower
debt due to her requires registration under the relevant provisions of Registration Act.
2007 Haryana

# Discuss the circumstances in which registration of a document can be refined by the

Registering Authority What is the remedy agamst an unjustified refusal? 2009 Haryana

# Can a registered document be re-registered? If so, under what circumstancs? 2009

Haryana

# A document for sale of immovable property was executed by a widow, who sent her
husband’s brother for registration. Her husband’s brother had no power of attorney to
sell or present the said document for registration on behalf of the widow. What right is
available to the vendee? 2009 Haryana

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 133

THE SALE OF GOODS ACT, 1930

List of Landmark Cases

Sr. Sections/Topics Related Cases

No. (Including Definitions etc.)
Sale and Hire Purchase Agreement Sale and Hire Purchase Agreement

1) Johar and Co. Vs. Deputy Commercial Tax Officer (AIR 1965 SC 1082) (the
Hon’ble Supreme Court observed: “In the case of a sale in which the price is to be paid
by instalments,the property passes as soon as the sale is made, even though the price
has not been fully paid and may later be paid m insfalments. This follows from the
definition of sale in section 4 the Indian Sale of Goods Act (as distinguished from an
agreement to sell) which requires that the seller transfers the poperty in the goods to the
buyer for a price.Tbe essence of a sale is that the property is transferred from the seller
to the buyer for a price, whether paid at once or paid later in instalments. On the other
hand a hire-purchase agrerment, as its very name implies, has two aspects. There is first
an aspect of bailment of the goods subjected to the hire purchase, and there is next an
element of sale which fructifies when the option to purchase, which usually a term of hire
purchase agreements is exemsed by the intending purchaser. Thus, the intending
purcharser is known as the hirer so long as the option to purchas is not exercised and the
absence of a hire purchase agreement property so-called is that the property in the
goods does not pass at the time of the agreement but remain in the intending seller, and
only passes later when the option is exercised by the intending purchaser. The
distinguishing feature of a typical hire-purchase agreement is that the property does not
pass when the agreement is made but only passes when the option is finally exercised
after complying with all the terms of the agreement.”

Goods. sec. 2(7) Goods. sec. 2(7)

2) Moss Vs. Honcock {held that coins and, currency which are not legal tenders are
goods.

Two parties are necessary for sale Two parties are necessary for sale
3. Craff Vs. Evans (there was unregistered club having many members. There was a rule
in the club that for drinking wine and eating any item, customer had to pay to the
manager of the club. Sales tax officer asked the club to pay the sales tax of wine which is
served to the members of the club. The club contended that there was no parties in this
case, thus, there was no contract of sale. Here, in this case, the club was not registered.
Therefore the members of the club were the owners of the club. Thus the Court held that
club was not liable to pay sales tax.

4) State of Gujarat Vs. Ramanlal Sakaichand & Co. (P.N. Bhagwati) (a firm dissolved.
Creditors paid off. There was surplus of goods after the payment. Members of the firm
distributed the remaining goods among themselves. The court held that it was not a
contract of sale. Since all the members of the firm are owner of the goods, then an
owner cannot sell the goods to himself. But where the remaining goods are distributed
among the partners and one of them sold his share to another, then it will amount to
contract of sale.

Meaning of moveable property

5) Sukari Vs. (Gundakul moveable property means property which has capacity to change
the place)

6) Baldry Vs. Marshall [(1925)1 KB 260] {the plaintiff informed the defendants that he
wanted a comfortable car suitable for touring. The defendants sold him a Bugati 8-
Cylinder model, which didn’t suit the plaintiff’s purpose at all. Held the defendants were
liable. In this case the buyer had made it clear to the seller that he was relying on the
seller’s skill and judgment in recommending an article and as suck the car should have
been reasonably fit for that purpose.
7) Priest v Last [(1903) 2 KB 148] {the plaintiff who was a draper, and had no special
skill or knowledge with regard to hot water bottles went to a chemist who sold such
articles and asked for a hot water bottal. An article was shown to him as such. He
inquired whether it would stand boiling water. The seller explained him that it was meant
for hot water and it would not stand boiling water. He then purchased it. Some days
afterwards, the bottle while in use by plaintiff’s wife burst and she was in consequence
scalded. The court held that at the time of purchase the bottle was not fit for hot water
thus there was an implied warranty that the bottle should be fit for keeping hot water.
The plaintiff was therefore entitled to damages.}

Section 16(2)
8)Grant Vs. Australian Mills Ltd. [AIR 1936 PC 34] {the plaintiff (buyer) purchased

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underpants from a company dealing in these goods, after wearing them contracted a skin
disease on account of some defect in their manufacture. It was held that the underpants
were not merchantable under section 14(i) and (ii) of the Australian Sale of Goods Act
corresponding to section 16(2) of the Indian Act, as they could not be worn next to the
skin, and that the company which sold them was liable for damages }

Section 19
9) Appleby Vs. Myears {there was a contract for sale of machinery. Machine had some
defects. Buyer refused to purchase until it was repaired. Seller delivered the goods to the
buyer on tenns that it would be repaired by the buyer and money expended on repairing
would be reduced from the price of the machinery. Machinery destroyed during
machinery. Held that the buyer will not be liable for the loss as the property in the goods
had not been transferred to him. Section 19(i) says that where there is a contract for the
sale of specific or ascertained goods, the property in them is transferred to the buyer at
such time as the parties to the contract intend it to be transferred. Here the buyer had
already told the seller that he would not accept the goods until it is repaired. Thus
property in the goods has not been transferred to the buyer.

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 135

THE PARTNERSHIP ACT, 1930

List of Landmark Cases

Sr. Sections/Topics Related Cases

No. (Including Definitions etc.)
Determination of partnership Determination of partnership
1) Helper Girdharibhai Vs. Saiyad Mohd. Mirasaheb Kadri [1987) 3 SCC 538} {Held that
“whether (there was a partnership or not may in certain cases be a mixed question of
law and fact, in the sense that whether the ingredients of partnership as embodied in
the law of partnership were there or not in a particular case must he judged in the light
of the principles applicable to partnership. The following important elements must be
there in order to establish partnership: (I) there must be an agreement entered into by
all parties concerned, (2) the agreement must be to share profits of the business, and
(3) the business must he carried on by all or any one of them acting for all.

The court further observed that sharing of profits and contributing to losses were not
only elements in a partnership, existence of agency is essential.}

Nature of the partnership firm. Nature of the partnership firm.

2). Vs. Subramaniam Vs. Rajesh Raghuvandra Rao (2009) 5 SCC 6O8) {Held, a
partrership firm, unlike a company registered under We Companies Act, is not a distinct
legal entity and is only a coompendium of its partners. Even registration of a firm does
not convert it into a distinct legal entity like a company. Partners of a partnership are
co-owners of the property of the firm, unlike shareholders in a company who are not
co-owners of the property of the company.

Difference between HUF and Difference between HUF and Partnership

Partnership 3). Nanchan Shetji Gangaram Vs. Allappa Mahalingappa Sadalge (AIR 1976 SC 835)
{The court enumerated the differences between Hindu joint family and Partnership as
follows: “in a joint Hindu family business, no member of the family can say that he is
the owner of one-half, one-third or one-fourth. The essence of joint Hindu family
property is unity of ownership and community of interest, and the shares of the
members are not defined. Similarly, the patterns of the accounts of a joint Hindu family
business maintained by the Karta is different from those of a partnership. In the case of
the former the shares of the individual members in the profits and losses are not
worked out, while they have to be worked out in the case of partnership accounts.”)

4. Chandrakant Manilal Shah Vs. Commissioner of Income tax, Bombay (AIR 1992 SC
66) {while explaining the distinction between partnership and HUF it was observed that:
“It cannot be said that when a coparcener enters into a partnership with the Karta of
HUF and contributes only his skill and labour, no contribution of any separate asset
belonging to such partner is made to meet the requirement of a valid partnership. The
aim of business is earning of profit. When an individual contributes cash asset to
become partner of a partnership firm in consideration of a share in the profits of the
firm, such contribution helps and at any rate is calculated to help the achievement of
the purpose of the firm namely to earn profit The same purpose is, undoubtedly,
achieved also when an individual in place of cash asset contributes his skill and labour
in consideration of a share in the profits of the firm. Just like a cash asset, the mental
and physical capacity generated by the skill and labour of an individual is possessed by
or is a possession of such individual. Indeed, skill and labour are by themselves
possessions. “Any possession” is one of the dictionary meanings of the word ‘Property’.
In its wider connotation therefor the mental and physical capacity generated by skill and
labour of an individual and indeed the skill and labour by themselves would be the
property of the individual possessing them. They are certainly assets of that individual
and three seems to be no reason why they cannot be contributed as a consideration for
earning profit in the business of a partnetsip firm. They certainly are not the properties
of HUF but are the separate properties of the indivtdual concerned. It cannot be said
that an undivided member of the family can qualify for a share of profits in the family
business by offering moneys- either his own or those derived by way of partition from
the family -but not when he offers to be a working partner contributing labour and
services or much more valuable expertise skill and knowledge for making the family
business more prosperous.

Section 14 i.e. the property the Section 14 i.e. the property the partnership
partnership 5) Shreedhar Govind Kamrekar Vs. Yasvant Govind Kamrekar [(2006)13 SCC 481]

6) Arm Group Enterprise Ltd. Vs. Waldrof Restaurant (AIR 2003 SC 4106) {lt was
observed that under section 14 of the Indian Partnership Act, 1932, in the absence of
an agreement to the contrary, property exclusively belonging to a person, on his
entering into partnership with others, does not become the property of partnership
merely because it is used for business of the partnership. Such property will become
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 136

property of the partnership only if there is an agreement express or implied that the
property was, under the agreement of the partnership, to be treated as the property of
the partnership.

On retirement On retirement
7) Pamuru Vishnu Vinodh Reddy Vs. Chilnkuru Chandrashekhar Reddy (MR 2003 SC
1614) {ln the instant case the finding of fact recorded that the plaintiff had retired from
the firm on 5-4-1971 after selling his share in the partnership firm. Once he had retired
from the partnership firm, he had no right to claim any further share in the profits of
the firm. A finding of fact is also recorded that the defendants had not paid the value of
the share of the plaintiff pursuant to the agreement for retiring from the firm. If the
defendants have failed to pay the value of the share of the plaintiff as agreed to, it has
become a debt on the defendant and the plaintiff is entitled to recover the same with
interest.

After the retirement from the partnership firm and particularly when the firm was
reconstituted with new partners, there was no question of using the plaintiff’s share for
earning profit in the reconstituted firm. The Hon’ble High Court, despite specific request
by the plaintiff in earlier suit to give a direction regarding the date on which the
valuation of the plaintiff’s share shall be arrived at did not give a direcllon but directed
the trial Court to make inquiry into valuation and decide the date taking into account
that his share was not paid till then.

There is no nexus or reason to say that the relevant date for valuation of the share of
the plaintiff is the date when the Commissioner valued his share, that too after long
lapse of time and taking note of the events that the plaintiff had retired from the firm
On 5-4-1971 having sold his share and the firm had been reconstituted with new
partners. When the plaintiff retired from the partnership firm on 5-4-1971, his share
could be valued aa on that date which stands to reason. Once the valuation is made as
on that date, for any delay in payment he is be compensated by awarding interest as is
evident from S.37. The value of the share of the plaintiff on the date of his retirement
from the firm could be regarded as a pure debt with effect from the date on which he
ceased to be a partner as per the agreement entered into between the parties.
Otherwise the result would be that he was deemed to have been continued as partner
of the firm even after he retired from the firm, by selling his share, If consideration was
not paid as per the agreement, he could enforce it as per law. However, mere non-
payment of consideration does not take away the legal effect of retirement from the
partnership firm.

Thus, the court held that the relevant date for the valuation of the retiring partner is the
date when he retired and not when the commissioner made the valuation.}

Section 47 i.e. continuing authority Section 47 i.e. continuing authority of partners for purpose of winding up
of partners for purpose of winding
up 8) Saligram Ruplal Khanna Vs. Kanwar Rajnath (AIR 1974 SC 1094, 3 Judge Bench, HR.
Khanna, MH. Beg and Y.V. Chandrachud, JJ.) {Held that the word “transaction” in
Section 47 refers not merely to commercial transaction of purchase and sale but would
include also all other matters relating to the affairs of the partnership. The completion
of a transaction would cover also the taking of necessary steps in connection with the
adjudication of a dispute to which a firm before its dissolution is a party. After
dissolution, the partnership subsists merely for the purpose of completing pending
transaction, winding up the business, and adjusting the rights of the partners and for
these purposes, and these only, the authority, rights and obligation of the partners
continue.

On sec. 69
9) Haldiram Bhujiawala Vs. Anand Kumar Deepak Kumar (AIR Couft held as follows:

A) A suit by unregistered firm is not barred by S. 69(2) if a statutory right or a common

law rights is being enforced. A suit for perpetual injunction to restrain the defendant not
to pass-off the defendant’s goods as those of plaintiffs by using the plaintiffs’ trade
mark and for damages is an action at common law and is not barred by S. 69(2).
Likewise, if the reliefs of permanent injunction or damages are being claimed on the
basis of a registered trade mark and its infringement, the suit is to be treated as one
based on a statutory right under the Trade Marks Act and is not barred by S. 69(2).

B) The contract by the unregistered firm referred to in S.69(2) must not only be one
entered into by the firm with the third party-defendant but must also be one entered
into by the plaintiff firm in the course ttthe business dealings of the plaintiff’s firm with
such third party-defendant. Thus the legislature when it used the words “arising out of
a contract” In S.69 (2) it is referring to a contract entered into in course of business

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transctions by the unregistered plaintiff firm with its customers-defendants and the idea
is to protect those in commercee who deal such a partnership firm in business.Such
third parties who deal with the partners ought to be enabled to know what the names
of the partners of the firm are before they deal with them in business.

Further S.69(2) is not attracted to any and every contract referred to in the plaint as the
source of title to an asset owned by the firm. If the plaint referred to such a contract it
could only be as a histoncal fact. In fact the Act has not prescribed that the transactions
or contracts entered into by a firm with a third party are bad in law if the firm is an
unregistered firm. On the other hand, if the firm is not registered on date of suit and
the suit is to enforce a right arising out of a contract with the third party defendant in
the course of its business, then it will be open to the plaintiff to seek withdrawal of the
plaint with leave and file a fresh suit after registration of the firm subject of course to
the law of limitation and subject to the provisions of the Limitation Act. This is so even if
the suit is dismissed for a formal defect. S.14 of the Limitation Act will be available
inasmuch as the suit has failed because the defect of non- registration falls within the
words “other cause of like nature” in S.14 of the Limitation Act, 1963.

Registered firm-Death of one Registered firm-Death of one partner-New partner inducted in his place-
partner-New partner inducted in his Existing firm could only be said to be reconstituted-Obtaining fresh
place-Existing firm could only be registration not necessary
said to be reconstituted-Obtaining 10) Sharad Vasant Kotak and others Vs. Ramniklal Mohanlal Chawla and another (AIR
fresh registration not necessary 1998 SC 877) {Held that the existing firm could be said to be only reconstituted on
induction of new partner on death of partner in earlier firm and, therefore, there is no
necessity to get a fresh registration. If by virtue of non-compliance of certain mandatory
provisions in not informing the Registrar of firms about the change the constitution of
the firm, certain penalties provided in the Act alone are attracted and that will not lead
to the conclusion that the registration of the firm ceased. The changes in the
constitution of the firm will not effect the registration once made. In other words, it is
not required that every time a new partner is inducted, fresh registration has to be
applied and obtained. However, information about changes have to be given. Failure to
comply attracts penalties u/S 69A of the Act. (In Maharashtra sec. 69A has been
inserted which provides penalty for not giving information regarding changes in the
registered firm.)

If unregistered firm get itself If unregistered firm get itself registered during the pendency of suit
registered during the pendency of 11.Raptakos Brett and Co. Ltd. Vs. Ganesh Property (AIR 1998 SC 3085) {lt has been
suit observed by the Hon’ble Apex Court that even if the suit is filed by unregistered
partnership firm against a third party and is treated to be incompetent as per section 69
(2), if pending the suit, before a decree is obtained, the plaintiff puts its house in order
and gets itself registered the defect in the earlier filing which even though may result in
treating the onginal suit as still born, would no longer survive if the suit is treated to
beemed to be instituted on the date on which registration is obtained. If such an
approach is adopted, no real harm would be caused to either side.

The court held that order 7, Rule 13 of the CPC would permit the filing of a fresh suit on
the same cause of Aclion and if the earlier suit is permitted to be continued it would
continue in the old number and the parties to the litigation would be able to get their
claim adjudicated on merits earlier while on the other hand if such subsequent
registration is not held to be of any avail all that would happen is that a fresh suit can
be filed immediately after such registration and then it will bear a new number of a
subsequent year. That would further delay the adjudicatory process of the court as such
a new suit would take years before it gets ready for trial and the parties will be further
deprived of an opportunity to get their disputes adjudicated on merits at the earliest
and the arrears of cases pending in the Court would go on mounting)

On section 69(3) i.e. explanation of On section 69(3) i.e. explanation of term “other proceedin used in opening Para of 6(3)
term “other proceedin used in
opening Para of 6(3) 12) Jagdish Chandra Gupta Vs. Kajaria Traders (India) Ltd. (MR 1964 SC
1882, 4 Judge Bench, K.N. Wanchoo, M. Hidaytullah, K.C Das Gupta and N.
Rajagopala Ayyangar, JJ) The Court held that the expression ‘claim of set off ‘in
Section 69 (3) of the Partnership Act does not disclose a category or genus. The words
‘other proceeding’ which follow must, therefore, receive their full meaning untrammelled
by the words a claim of set off. The latter words neither intend nor can be construed to
cut down the generality of the words other proceeding’. The sub-section provides for
the application of the provisions of sub-sees. (I) and (2) to claim of set off and also to
other proceedings of any kind which can properly be said to be for enforcement of any
right arising from contract except those expressly mentioned as exceptions in sub-s.(3)
and sub-s.(4).
Where, therefore a partner of an unregistered partnership applies under S. 8 (2) of the
Arbitration Act to enforce a right arising from a contract between the partners the,
proceedings are barred by S. 69 (3) of the Partnership Act.
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 139

THE TRANSFER OF PROPERTY ACT, 1882

List of Landmark Cases

Sr. Sections/Topics Related Cases

No. (Including Definitions etc.)
Section 40 Section 40
1) Tulk v Moxhay (1848) {provisions of section 40 are based on the principles laid
down in Tulk Vs. Moxhay.}

2) Haywood Vs. Brunswick Permanent Benefit Building Society (1881) {held

that principle of Tulk Vs. Moxhay was confined to negative covenants and was
inapplicable to afiirwative covenants )

Sections 41 and 43 and doctrine of Sections 41 and 43 and doctrine of “feeding the estoppels.”
“feeding the estoppels.” 3) Hardev Singh v Gurmail Singh (AIR 2007 SC 1058 S.B Sinha and Markandey Katju JJ)
While explaining the doctrine of feeding the estoppels, the Court observed as follows
“The doctrine of feeding the etoppel envisages that “where a grantor ha Purpoted to
grant an interest in land which he did not at the time possess, but subsequently
acquires the benefit of his subsequent acquisition, goes automatically to the earlier
grantee, or as it is usually expresscd, feeds the estoppel. The principle is based on an
equitable doctrine that a person who promised to perform more then can perform must
make good his contract when he acquries the power of performance. The difference
between the ambit of Ss. 41 and 43 of the Act is apparent. Whereas S. 41 provides that
a transfer by an ostensible owner cannot be avoided on the ground that the transferor
was not authorised therefor subject to the condition that the transferee should take
reasonable care to ascertain that the transferor had power to make the transfer and to
act in good faith before a benefit thereof is claimed by him. 5 43, on the other hand,
enables the transferee to whom a transferor has made a fraudulent or erroneous
representation to lay hold, at his option, of any interest which the transferor may
subsequently acquire in the property, unless the right of any subsequent purchaser for
value without notice is in effect.

Thus, where husband transferred property which he had given to wife in lieu of
maintenance, in order to frustrate claim of wife and wife challenged said transfer but
during pendency of suit wife died, the husband being legal heir would be owner of
property and hence S. 43 would apply. Plea that S. 41 would apply was not tenable as
there was nothing to show that transfer was void or transferee had knowledge of
litigation.}

Section 52 Section 52
4) Bellamy Vs. Sabine {the principle on which doctrine of lis pendens is based was
explained by L.J. Turner)

5) Essential elements: For the applicability of Section following conditions need to be

fulfilled:
* Pendency of a suit or proceeding;
* Suit or proceeding must be pending in a competent court;
* Such suit or proceeding must not be of collusive character.
* A right to immovable property must be directly and specifically in question;
* The property in dispute must be transferred or otherwise dealt with by any party to
the litigation; and
* The transfer must affect to the right of other party to the litigation.

6) Rajendra Singh Vs. Santa Singh (AIR 1973 SC 2537) {held that The act of
taking illegal possession of immovable property or continuance of wrongful possession,
even if the wrong doer be a party to the pending suit, cannot be viewed as a ‘dealing
with” the properly otherwise than by its transfer so as to be covered by Section 52 of
the Transfer of Property Act. The prohibition which prevents the immovable property
being “transferred or otherwise dealt with” by a party is apparently directed against
some action which would have an immediate effect, similar to or comparable with that
of transfer but for the principle of lis pendens. Taking of ill legal possession or its
continuance neither resemble nor are comparableib a transfer. They are one sided
wrongflul acts and not bilateral transactions of a kind which ordiianly constitute deals’ or
dealings with property)

Section 53A Section 53A

7) Mddison Vs. Alderson (Section 53A is based on this decision.}

8) Prabodh Kumar Das v Dantmara Tea Co. (AIR 1940 PC 1) (it is leading case
on the nature of the right of transferee.)

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9). Essential requirements: Before a person can invoke the provisions of Section 53-
A and take benefit under it, following indispensable requirements must be complied
with:
* There must be contract to transfer immovable property for consideration;
* The contract must be in writing and registered signed by the transferor or someone
on his behalf;
* The writing should be such so that the terms necessary to constitute transfer may be
ascertained with certainty;
* The transferee has in part performance of the contract taken possession of the
property or if already in possession continue to be in possession of the property;
* The transferee must have done something in furtherance of the contract; and
* The transferee must have performed or is willing to perform his part of the contract.

On 54, 58(c) and 8 On 54, 58(c) and 8

10) Vimal Chand Ghevarchand Jain Vs. Ramakant Eknath Jadav (2009) 5 SCC
713, S.B. Sinha and M.K. Sharma, JJ] {Held that a registered deed of sale carries
presumption that transaction was a genuine one. If execution of sale deed is proved,
onus is on defendant to prove that the deed was not executed and it was a sham
transaction.)

Clog on redemption Clog on redemption

11) Shivdev Singh Vs. Sucha Singh (AIR 2000 SC 1935) (Held that any provision
incorporated in the mortgage deed to prevent or hamper the redemption would be void.
A mortgage cannot be made irredeemable and right ot redemption not an illusory.

12) Pomal Kanji Govindji Vs. Vrajlal Karsandas Purohit (AIR 1989 SC 436)

13) Gangadhar Vs. Shankar Lal (AIR 1958 SC 770, 3 Judge Bench, N.H.
Bhagwati, J.L. Kapoor and A.K. Sarkar, JJ.) {Speaking through A. K. Sarkar, j., the
Court held that “The rule against clog on the equity of redemption is that a mortgage
shall always be redeemable and a mortgagor’s right to redeem shall neither be taken
away nor be limited by any contract between the parties. The Court will ignore any
contract the effect of which is to deprive the mortgagor of his right to redeem the
mortgage. One thing, therefore, is clear namely, that the term in the mortgage
contract, that on the failure of the mortgagor to redeem the mortgage within the
specified period of six months the mortgagor will have no claim over the mortgaged
property, and the mortgage deed will be deemed to be a deed of sale in favour of the
mortgagee, cannot be sustained. It plainly takes away altogether the mortgago’s right
to redeem the mortgage after the specified period. This is nol permissible, for “once a
mortgage always a mortgage” and therefore always redeemable.”}

Facts of the case and decision of the Court in brief: A executed in 1899 a usufructuary
mortgage of a shop in favour of B for a consideration of Rs. 6,300 of which Rs. 5,750
had been left with the mortgagee to redeem a prior mortgage on the same and another
property. It also provided that on redemption of the prior mortgage, the possession of
the shop would be taken over and retained by the mortgagee, B, who would
appropriate its rent in lieu of interest on the money advanced by him and the
possession of the other property covered by the prior mortgage, being a share in a
Kacheri, would be made over to the mortgagor A. The redemption clause in the
mortgage was in the following terms: “I or my heirs will not be entitled to redeem the
property for a period of 85 years. After the expiry of 85 years we shall redeem it within
a period of six months. In case we do not redeem within a period of six months, then
after the expiry of the stipulated period, I, my heirs, and legal representative shall have
no claim over the mortgaged property, and the mortgagee shall have no claim to get
the mortgage money and the lagat (i.e., repairs) expenses that may be due at the time
of default. In such a case this very deed will be deemed to be a sale deed. There will be
no need of executing a fresh sale deed. The expenses spent in repairs and new
constructions will be paid along with the mortgage money at the time of redemption
according to account produced by the mortgagee. The successors of A brought a suit
for redemption in 1947. The defendant contended that the suit was not-maintainable as
being premature.

Held (i) that the term in the mortgage instrument providing that the mortgage can be
redeemed only within the period of six months and not thereafter must be held to be
invalid as a clog and ignored.

(ii) that in the circumstances the term in the mortgage that it will not be redeemable
until the expiry of 85 years was not a clog on the equity of redemption. The bargain
was a reasonable one and the mortgagee had not taken any unfair advantage of his
position as the lender. Nor was the mortgagor under any financial embarrassment. The

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term could therefore be enforced with the result that the suit was premature and must
fail.

Difference between License and Lease

14) Associated Hotels of india Ltd. Vs. R.N. Kapoor (AIR 1959 1262, judge
Bench, S.K. Das, A.K. Sarkar and K. Subba Rao, JJ.) {There is a marked
distinction between a lease and a licence. S 105 of the Transfer of Property Act defines
a lease of immoveable property as a transfer of a right to enjoy such property made for
a certain time in consideration for a price paid or promised. Under S. 108 of the said
Act, the lessee is entitled to be put in possession of the properiy. A lease is therefore a
transfer of an interest in land. The interest transferred is called the leasehold interest.
The lessor parts with his right to enjoy the property during the term of the lease, and it
follows from it that the lessee gets that right to the exclusion of the lessor. Whereas S.
52 of the Indian Easements Act defines a licence thus:
“Where one person grants to another, or to a definite number of other
persons, a right to do or continue to do, in or upon the immoveable property of the
grantor, something which would, in the absence of such right, be unlawful, and such
right does not amount to an easement or an interest in the property, the right is called
a licence.”

Under the aforesaid section, if a document gives only a right to use the property in a
particular way or under certain terms while it remains in possession and control of the
owner thereof, it will be a licence. The legal possession, therefore, continues to be with
the owner of the property, but the licensee is permitted to make use of the premises for
a particular purpose. But for the permission, his occupation would be unlawful. It does
not create in his favour any estate or interest in the property. There is, therefore, clear
distinction between the two concepts. The dividing line is clear though sometimes it
becomes very thin or even blurred. At one time it was thought that the test of exclusive
possession was infallible and if a person was given exclusive possession of premises, it
would conclusively establish that he was a lessee. But there was a change and the
recent trend of judicial opinion is reflected in Errington Vs. Errington, 1952-1 All ER 149,
wherein Lord Denning reviewing the case law on the subject summarizes the result of
his discussion thus at p. 155:

“The result of all these cases is that, althuoght a person who is let into exclusive
possession is, ‘prima facia’, to he considered to be tenant, nevertheless he will not be
held to be so if the circumstances negative any intention to create a tenancy.”

The Court of Appeal again in Cobb Vs. Lane, 1952-1 All ER 1199, considered the legal
position and laid down that the intention of the parties was the real test for ascertaining
the character of a document. At p.1201, somervell L.J., stated:

“..............the solution that would seem to have been found is, as one would expect
that it must depend on the intention of the parties.”

Denning L. J. said much to the same effect at Pg. 1202: “The question in all these cases
is one of intention: Did the circumstances and the conduct of the parties show that all
that was intended was that the occupier should have a personal privilege with no
interest in the land?”

The following propositions may. therefore, be taken as well-established: (I) To ascertain

whether a. document creates a licence or lease, the substance of the document must be
preferred to the form; (2) the real test is the intention of the parties- whether they
intended to create a lease or a licence; (3) if the document creates an interest in the
property, it is a lease; but, if it only permits another to make use of the property, of
which the legal possession continues with the owner, it is a licence; and (4) if under the
document a party gets exclusive possession of the property, ‘prima facie’, he is
considered to be a tenant; but circumstances may be established which negative the
intention to create a lease.

---o---

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THE DELHI RENT CONTROL ACT, 1958

List of Landmark Cases

Sr. Sections/Topics Related Cases

No. (Including Definitions etc.)
Concept of “Bonafide requirement”
1). Ram Dass Vs. Ishwar Chander [1988 (3) SCC 131] M.N. Venkatachaliah J. (as
His Lordship then was) speaking for the three-Judge Bench, said (SCC pp. 134-35, para
11):
“Statutes enacted to afford protection to tenants from eviction on the basis
of contractual rights of the parties make the resumption of possession by the landlord
subject to the satisfaction of certain statutory conditions One of them is the bona fide
requirement of the landlord, variously described in the statutes as ‘bona fide
requirement’ reasonable requirement’, ‘bona fide and reasonable requirement’ or, as in
the case of the present statute merely referred to as ‘landlord requires for his own use’.
But the essential idea basic to all such cases is that the need of the landlord should be
genuine and honest conceived in good faith: and that further the Court must also
consider it reasonable to gratify that need. Landlord’s desire for possession, however
honest it might otherwise be, ‘requirement’ in law must have the objective element of a
‘need’. It must also be such that the Court considers it reasonable and therefore,
eligible to be gratified. In doing so the Court must take all relevant circumstances into
consideration so that the protection afforded by law to the tenant is not rendered
merely illusory or whittled down”

2) Gulabbai Vs. Nalin Narsi Vohra (1991 (3) SCC 483) reiterating the view taken
in Bega Begum Vs. Abdul Ahad Khan (1979 (1) 5CC 273) it was held that the words
“reasonable requirement’ undoubtedly postulate that there must be an element of need
as opposed to a mere desire or wish. The distinction between desire and need should
doubtless be kept in mind but not so as to make even the genuine need as nothing but
a desire.

3) Shiv Sarup Gupta Vs. Dr. Mahesh Chand Gupta (1999 (6) SCC 222) the
Hon’ble Supreme Court in a detailed judgment, dealing with this aspect, analysed the
concept of bona fide requirement and said that the requirement in the sense of felt
need which is an outcome of a sincere, honest desire, in contradistinction with a mere
pretence or pretext to evict a tenant refers to a state of mind prevailing with the
landlord. The only way of peeping into the mind of the landlord is an exercise
undertaken by the Judge of facts by placing himself in the armchair of the landlord and
then posing a question to himself - whether in the given facts, substantiated by the
landlord, the need to occupy the premises can be said to be natural, real, sincere,
honest. If the answer be in positive, the need is bona fide.

Proviso to section 14(1) Proviso (a) to section 14(1)

10) Prakash Mehra Vs. K.L. Malhotra (AIR 1989 SC 1652) {it was observed that
the arrears of rent envisaged by section 14(l) (a) of the Act are the arrears demanded
by the notice for payment of arrears of rent. The arrears due cannot extend to rent
which has fallen due after service of the notice of demand. Thus where the notice for
payment of arrears of rent called for payment of the arrears due for two months and
the tenant had tendered the sum within two months of the date of service of the notice
of demand he cannot be said to have committed a default on ground that rent that had
become due during the notice period of two months was not paid by the tenant) -

Proviso (e) to section 14(1)

11) Ram Narain Arora v Asha Rani (AIR. 1998 SC 3012) {read pg no 342 of
Shailendra Malik}

12) M.L Prabhalcar v Rajiv Singal (AIR 2001 SC 522) {it was observed that the
suitability of alternative accommodation has to be seen from the convenience of the
landlord and his family members and on the basis of the totality of the circumstances
including their profession, vocation, style of living, habits and background. Where any
accommodation has been used by the servant of the landlord then it cannot b expected
that the landlord will reside in that house and thus requirement of suitable residential
accommodation has not been fulfilled and therefore eviction of tenant on ground of
bona fide requirement of landlord was valid.}

13) Phiroxe Bamanji Desai v Chandrakant M Patel (AIR 1974 SC 1059) {held
that if a person is in occupation of the other premises on leave and licence, they are
obviously not available to the landlord for occupation and cannot be taken into account
for negating the need of the landlord for the premises in question)

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 144

Proviso (h) to section 14(1)

14) B. R. Mehta Vs. Atma Devi (AIR 1987 SC 2220) {held that the tenant
husband cannot be made to lose his tenancy in respect of demised premises because of
his wife acquiring possession of a flat or allotment of a flat because of her official duties
over which the husband has no right or domain or occupation.

15) Prem Chand Vs. Sher Singh (1981 Delhi Rent Judgment) {the tenant’s wife
had purchased a flat in Saket and the flat was available for residence to the tenant.
Consequently, it was held that the acquisition of the flat by the wife was acquisition by
the tenant, and the tenant was liable to eviction.

16) Indian Cable Company Vs. Prem Chandra Sharma [1989) 39 DLT 89) {it
has been held by the Delhi High Court that it is indeed essential to include a company
which is generally more resourceful than a natural person within clause (h) to
effectively restrict protection under this clause to possession of only one residential
premises and that too till the tenant has acquired vacant possession of or has been
allotted another residential accommodation in Delhi. It was observed that otherwise the
object and purpose of this clause would be defeated as a company could otherwise
easily afford to take on rent any number of residential premises and thus deprive the
really needy persons of a residence in Delhi.)

17) Ganpat Ram Vs. Gayatri Devi {1981) 2 RLR 653] {held that there is no
mention in the Rent Control Act that the Act must be applicable to the allotted
residence. Intention of clause (h) is that if a tenant has been allotted a residence he is
not entitled to be protected under the Rent Act

Section 15(7) whether controller has Section 15(7) whether controller has discretion to extend the time for
discretion to extend the time for deposit
deposit
18) Jain Motor Car Co., Delhi Vs. Swayam Prabha Jain (AIR 1996 SC 2951)
{held that section 15(7) gives a discretion to the rent Controller and does not contain a
mandatory provision for striking out the defence of the tenant against eviction. The
Rent Controller may or may not pass an order striking out the defence. The exercise of
this discretion depends upon the facts and circumstances of each case. The court
further observed that the power to strike out defence against eviction is discretionary
and must not be mechanically exercised without any application of mind to the facts of
the case.

19) Miss Santosh Mehta v Om Parkash (AIR 1980 SC 1664)

Section 16(3)
Delhi Vanaspati Syndicate Delhi v M/s Bhagwan Das Faqir Chand (AIR 1972 Del 17)
{the court observed as follows:
“Section 16 of the Act of 1958 holds the key to the interpretation of
provisions of clause (b) of proviso of sub section (1) of section 14 of this Act as well as
of clause (b) of sub-section (I) of section 13 of the 1952 Act. It deals with restriction of
sub- letting. Section 16(1) makes the sub-letting lawful though it was without the
consent of the landlord provided that the cub letting has taken place before 9 day of
June, 1952 and the sub-tenant is in occupation of the premises - at the time when the
Act of 195K came into force Section 16(2) reiterates the provision of section l3(I)(b) of
1952 Act and lays down that the sub-letting after9th Day of June, 1952 without
obtaining the consent in writing of the landlord shall not be deemed to be lawful. It
does not say that the requisite consent should be obtained before sub-letting the
premises and the consent obtained after sub-letting will not ensure for the benefit of
the tenant. However, section 16(3) prohibits sub-letting of the premises after the
commencement of 1958 Act without the ‘previous’ consent in writing of the landlord.
The use of word previous’ in this sub-section shows that where it was intention of the
legislature that the consent in writing should be obtained before sub-letting, it said so
specifically. The absence of the word ‘previous’ in sub-section (2) shows that it was not
the intention of the., legislature that the consent in writing could be obtained before
sub-letting. Since the absence of writing in consent by a landlord for sub-letting gave
rise to unnecessary litigation between a landlord and a tenant, the Act of 1958 required
the consent of the landlord in writing after its commencement. The purpose seemed to
be that the consent of the landlord evidenced by a writing would cut out litigation on
this ground.;}

21) Shalimar Tar Products ltd v H.C Sharma (AIR 1988 SC 145) (it was observed that it
is necessary for the tenant to obtain the consent of the landlord in writing before sub
letting the premises. The mere permission or acquiescence will not do. The consent
must be to the specific sub-letting and must be in writing The requirement that consent

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 145

should be in writing cannot be regarded as directory as requirement of consent to be in

writing is intended to serve a public purpose to avoid dispute as to whether there was
consent or not )

Section 21 i.e recovery of possession Section 21 i.e recovery of possession in case tenancies for limited period
in case tenancies for limited period
22) S.B Naronah v Prem Kumar Khanna (AIR 1980 SC 193) V.R. Krishna lyer
and P.N Shinghal JJ.) {Krishna lyer J. after elaborating the social purpose behind the
purpose of section 21, has explained the essential ingredient of section 21 as follows
(Para 16)
The first condition is that the landlord does not require the demised premises for a
particular period only. This means that he must indicate to the authority before which
sanction is I sought for letting what is the particular period for which he can spare the
accommodation. The Controller must be satisfied that the landlord means what he says
and it is not a case of his not requiring the property indefinitely as distinguished from a
specific or particular limited period of say one year, two years or five years. If a man
has a house available for letting for an indefinite period and he so lets it, even if he
specifies as a pretense, a period or term in the lease, Section 21 cannot be attracted.
On the other hand, if he gives a special reason why he can let out only for a limited
period and requires the building at the end of that period, such as that he expects to
retire by then or that he is going on a short assignment or on deputation and needs the
house when he returns home it is good compliance.

The second condition is that the letting must be made for a residential purpose. The
house must be made over “as a residence”. If it is let out for a commercial purpose,
Section 21 will not apply, whether the ritual of a sanction under that provision has been
gone through or not.

Thirdly, the Controller’s permission is obligatory where he specifies the particular

period for which he gives permission and further qualifies the permission for use as a
residence. The Controller exercises an important regulatory function on behalf of the
community. The fact that a landlord and a potential tenant together apply, setting out
the formal ingredients of Section 21, does not relieve the Controller from being vigilant
to inquire and satisfy himself about the requisites of the landlord’s non-requirement “for
a particular period” and the letting itself being “as a residence”. A fraud on the statute
cannot be permitted especially because of the grave mischief that may be perpetrated
in such event.

Limited scope of section 21: The learned Judge further restricted the applicability of
section 21 and held in Pam 17: “It is easy to envisage the terrible blow to-the rent
control law if Sec. 21 were freely permitted to subvert the scheme of Section 14. Every
landlord will insist on a tenant going through the formal exercise of Section 21, making
ideal averments in terms of that section. The consequence will be that both the Civil
Procedure code which prescribes suits for recovery of possession and the Delhi Rent
Control Act which prescribes grounds for eviction will be eclipsed by the pervasive
operation of section 21. Neither grounds for eviction nor suits for eviction will thereafter
be needed, and if the landlord moves the court for a mere warrant to place the landlord
moves the court process in vacant possession of the premises, he gets it. No court-fee,
no decree no execution petition, no termination of tenancy wish for possession and the
court i at your command Such a horrendous situation will be the negation of the rule of
law in this area So it is that we deem it necessary to lay down the law as implied in
Section 21.”
For the first time in this case the court held that the control can
examine whether sanction under section 21 was granted under fraud or
collusion etc.

23) Shrisht Dhawan Vs. Shaw Brothers (AIR 1992 SC 1555, Dr. D.K.
Thommen and R.K. Sahai, JJ.) {the court held that the law on procedural aspect
under section 21 should be taken as settled as follows:
* Any objection to the validity of the sanction should be raised prior to expiry of the
lease

* The objection should be made immediately on becoming aware of fraud, collusion etc.

* A tenant may be permitted to raise objection after expiry of lease in exceptional

circumstances only.

* Burden to prove fraud or collusion is on the person alleging it.

Similarly, on the substantive safeguards, the law that is settled and should
be followed by the authorities may be stated thus:

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* Permission granted under section 21 of the Act can be-assailed by the tenant only if it
can be established that it was vitiated by fraud occlusion or Jurisdictional.

* Fraud or collusion must relate to the date when permission was granted.

* Permission carries a presumption or correctness which can be permitted to be

challenged not only by raising objection but proving it prima facie to the satisfaction of
Controller before landlord is called upon to file reply or enter into evidence.

* No fishing or roving inquiry should he permitted the stage of execution.

* A permission does not suffer from any of these errors merely because no reason was
disclosed in the application at the time of creation of short term tenancy.

* Availability of sufficient accommodation either at the time of grant of permission or at

the stage of execution is not a relevant factor of deciding validity of permission.

24) Subhash Kumar Lata Vs. R.C. Chhiba (AIR 1989 SC 458) {held that the
sanction obtained by the landlord from the Rent Controller permitting her to grant
limited tenancy rights in the disputed premises, without disclosing to the Rent Controller
the fact that the disputed premises was already let out under an oral agreement is
defective and infirm.

25) Veena Goel Vs. Pawan Kumar [1988) 1 RCR 181] {it was held by the Delhi
High Court that it is duty of applicant to disclose material fact of having created earlier,
a limited tenancy at the time of seeking permission from controller for creating an
another limited tenancy. Having not done so applicant is guilty of suppressing the
material facts which amounts to playing fraud. Therefore, permission so obtained in this
manner has to be treated as nullity.)

26) Natha Singh Vs. HV. Nayar [(1983) 1 RCD 1581] {it was held: “if a landlord
has not taken steps to obtain possession after the expiry of fixed term tenancy granted
with the permission of the Controller, it does not mean that for all times in future he is
debarred from seeking eviction under section 14.”}

Whether issue of notice to tenant is necessary before issuing warrant of

possession of tenanted premises under section 21 of the Act?
27) JR. Vohra Vs. India Export House Pvt. Ltd (AIR 1985 SC 475) {held that in
view of non-obstante clause no notice to the tenant is contemplated before issuing the
warrant of possession for putting the landlord in possession.

28) Shiv Chander Kapoor Vs. Amar Bose (AIR 1990 SC 325, M. N.
Venkatachaliah, N. D. Ojha and J. S. Verma, JJ.) {held that no notice to the tenant
before issuing the warrant of possession in favour of the landlord on his application for
recovery of possession on expiry of the limited tenancy is necessary. No notice is either
contemplated or expedient. This is the reasonable view which is in accord with the
scheme of S.21.Obviously notice is to be given of a fact which may otherwise be not
known to the notice. The period of limited tenancy and the date of its expiry are known
to the tenant from the very inception. The tenant is equally aware of his own default in
restoring vacant possession of such premises to the landlord on expiry of that period. It
is only these facts, well known to the tenant, which compel the landlord to apply for
recovery of possession pursuant to the tenant’s default. The plea of invalidity if any of
Controllers earlier permission must equally be known to the tenant at least by then
coupled with his knowledge that unless A declaration is made at his instance that the
Controller’s permission is invalid he must vacate the limited tenancy having expired.
Why then should a notice to him at that stage be necessary and for what useful
purpose. There no good reason to require a notice to the tenant at that stage. The
object of enquiring into the validity of Controller’s permission under S.21 is only to
ensure that essentials of a limited tenancy existed and that the same was genuine and
it is not meant to permit raising of frivolous pleas which would frustrate the very object
of its enactment This view protects the honest tenant and only curbs the frivolous and
vexatious pleas. There is another aspect of the matter. The Controller’s permission
when granted to create a limited tenancy under S 21 is resumed to be valid unless
declared otherwise It is therefore for the person assailing its validity to get such a
declaration from a proper forum in a proper proceeding. Unless this is done the order
remains enforceable. The duty is clearly on the tenant himself to raise the plea of
invalidity and unless the order is declared invalid at his instance its enforceability cannot
be doubted.}

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THE MADHYA PARDESH ACCOMODATION CONTROL ACT 1961

List of Landmark Cases

Sr. Sections/Topics Related Cases

No. (Including Definitions etc.)
Section 2(1) i.e. definition of Section 2(1) i.e. definition of “tenant”
“tenant”
4) Smt. Chander Kali Bail and others, Appellants Vs. Jagdish Singh Thakur and another,
Respondents. (AIR 1977 2262) (Held that a tenant even after the termination of his
contractual tenancy does not become an unauthorised occupant of the accommodation
but remains a tenant Such a tenant is conveniently called a statutory tenant Whether
the expression aforesaid borrowed from the English Law is quite apposite or not but
what is certain is that person continuing in possession of the accommodation even after
the termination of his contractual tenancy a tenant within the meaning of the Act and
on such termination his possession does not become wrongful, until and unless a
decree for eviction is made If he continues to be in possession even after the passing of
the decree, he does so as a wrongful occupant of the accommodation}

Section 11-A
5) Ashok Kumar Gupta Vs. Vijay Kumar Agrawal (AIR 2002 SC 1310 S.S. M
Quadri and Doraiswamy Raju JJ) (The jurisdiction to pass order of eviction on the
ground mentioned in S 23-A was conferred on the Rent Controlling Authority and the
Civil Courts jurisdiction was ousted impliedly in that behalf But that position remained
in existence only for a short period till Jan 16, 1985 when by Act 7 of 1985 S. 11-A was
inserted in Chapter III and S 23-J was inserted in Chapter III A. S. 11-A says that the
provisions of Chapter III so far as they relate to the matter specially provided in
Chapter III-A shall not apply to the landlord defined in S. 23-J. S. 23-J enumerates five
categories of landlords They are i) a retired servant of any Government or a retired
member of defence services,. ii) a retired servant of a company owned by any Govt.; iii)
a widow or a divorced wife; iv) Physically handicapped person; and v) A Govt servant
etc. not entitled to Govt accommodation. The position after Jan 16, 1985 is that only in
respect of the aforementioned categories of the landlords the Rent Controlling Authority
has jurisdiction to order eviction of a tenant on grounds of bona fide requirement under
S. 23-A. A conjoint reading of Ss. 1!_A, 12, 23-A, 23-J and S. 45 would show that in
regard to the bona fide personal requirement of the landlord who does not fall within
the specified categories in S. 23-J, the Civil Court has jurisdiction to entertain a suit and
pass eviction decree under clause (e) of sub-section (1) of S.12 of the Act.}

Section 23-J of the M.P. Accommodation Control Act 1961 AND Section 9 of
the C.P.C
6) Smt Sulochan Vs. Rajendra Singh (AIR 2008 SC 2611, S. B. Sinha and Lokeshwar
Singh Panta, JJ) (Chapter III-A provides for special provisions It is confined to eviction
of tenants on grounds of bona fide requirement of different classes of landlords
specified therein. A summary procedure is provided for. Recourse thereto can be taken
only by the specified landlord within the meaning of the provision of Section 23-J of the
Act which means a ‘landlord who is a widow or divorced wife amongst others. Only a
landlord who comes within the purview of the said definition is entitled to file suit on
the ground of his or her bona fide requirement. Moreover, the definition of ‘specified
landlord’ as contained in Section 23-J of the Act is not as broad as the definition of the
same term as contained in Section 2(b) thereof. A statute must be read, keeping in
view the Constitution scheme of equality as adumbrated in Article 14 of the Constitution
of India. Once a special benefit has been conferred on a special category of landlord Ike
same must receive strict construction. Even otherwise, it is well settled that an exclusion
provision must be construed strictly. A statute ousting jurisdiction of the civil Court
should also be strictly construed.

Concept of “Bonafide requirement” Concept of “Bonafide requirement”

7) Ram Dass Vs. Ishwar Chander [1988 (3) SCC 131} MN Venkatachaliah, J (as
His Lordship then was) speaking for the three-Judge Bench said (SCC pp 134-35 para
11):
‘Statutes enacted to afford protection to tenants from eviction on the basis of
contractual rights of the parties mike the resumption of possession by the landlord
subject to the satisfaction of certain statutory conditions. One of them is the bona fide
requirement of the landlord variously described in the statutes as ‘bona fide
requirement’, ‘reasonable requirement’, ‘bona fide and reasonable requirement’ or, as in
the case of the present statute, merely referred to as ‘landlord requires for his own use’.
But the essential idea basic to all such cases is that the need of the landlord should be
genuine and honest, conceived in good faith: and that, further, the Court must also
consider it reasonable to gratify that need. Landlord’s desire for possession, however
honest it might otherwise be, ‘requirement’ in law must have the objective element of a
‘need It must also be such that the Court considers it reasonable and therefore, eligible
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 149

to be gratified. In doing so, the Court must take all relevant circumstances into
consideration so that the protection afforded by law to the tenant is not rendered
merely illusory or whittled down.”

8) Gulabbai Vs. Nalin Narsi Vohra (1991 (3) SCC 483) reiterating the view taken
in Bega Begum Vs. Abdul Ahad Khan (1979 (I) SCC 273) it was held that the words
“reasonable requirement” undoubtedly postulate that there must be an element of need
as opposed to a mere desire or wish. The distinction between desire and need should
doubtless be kept in mind but not so as to make even the genuine need as nothing but
a desire.

9) Shiv Sarup Gupta Vs. Dr. Mahesh Chand Gupta (1999 (6) SCC 222) the
Hon’ble Supreme Court in a detailed judgment, dealing with this aspect, analysed the
concept of bona fide requirement and said that the requirement in the sense of felt
need which is an outcome of a sincere, honest desire, in contradistinction with a mere
pretence or pretext to evict a tenant refers to a state of mind prevailing with the
landlord. The only way of peeping into the mind of the landlord is an exercise
undertaken by the Judge of facts by placing himself in the armchair of the landlord and
then posing a question to himself - whether in the given facts substantiated by the
landlord, the need to occupy the premises can be said to be natural real, sincere honest
If the answer be in the positive, the need is bona fide.

Section 12(1) Section 12(1) (c)

10) Sheela and Ors Vs. Firm Prahlad Rai Prem Prakash (AIR 2002 SC 1264
R.C Lahoti and Mrs. Ruma Pal, JJ.) It is pertinent to note that denial of title of the
landlord or disclaimed of tenancy is not as such set out as a ground on which tenant
may be evicted under S. 12 of the Act. Section 12 (1) (c) provides inter alia that a
tenant incurs liability for eviction if the tenant or any person residing with him has done
any act which is likely to affect adversely and substantially the interest of the landlord
therein. A tenant’s denial of the landlord’s title and/or disclaimer tenancy has been held
to be an act which is likely to affect adversely and substantially the interest of the
landlord. It has to be seen how and in what manner a denial of title or disclaimer by
tenant would attract applicability of S. 12( c) of the Act.
The denial or disclaimer to be relevant for the purpose of S.12(1)(c) should
take colour from S. 116 of the Evidence Act and S. 111(g) of the Transfer of Property
Act, S.116 of the Evidence Act embodies therein rule of estoppel. The rule of estoppel
applies so long as tenancy is not terminated and rule estops tenant from laying
challenge to ownership of landlord at the commencement of tenancy. Clause (g) of S.
111 of T.P. Act provides that lease of immoveable property determines by forfeiture in
case the lessee renounces his character as such by setting up a title in a third person or
by claiming title in himself (Para 12)
Denial of landlord’s title or disclaimer of tenancy by tenant is an act which is
likely to affect adversely and substantially the interest of the landlord and hence is a
ground for eviction of tenant within the meaning of C!. (c) of sub-section (1) of S.12 of
M.P. Accommodation Control Act, 1961. To amount to such denial or disclaimer, as
would entail forfeiture of tenancy rights and incur the liability to be evicted, the tenant
should have renounced his character as tenant and in clear and unequivocal terms set
up title of the landlord in himself or in a third party. A tenant bona fide calling upon the
landlord to prove his ownership or putting the landlord to proof of his title so as Protect
himself (i.e. the tenant) or to earn a protection made available to him by Rent Control
Law but without disowning his character of possession over the tenancy premises as
tenant cannot be said to have denied the title of landlord or disclaimed the tenancy.
Such an act of the tenant does not attract applicability of S. 12(1 )(c) above said. It is
the intention of the tenant, as culled out from the nature of the plea raised by him,
which is determinative of its vulnerability. (Para 17 and 18)

Section 12(1) (a) Section 13(3), (5) Section 12(1) (a) Section 13(3), (5) and (6)
and (6)
11) Sobhagyamal and Anr. Vs. Gopal Das Nikhra (AIR 2008 SC 1519, Prakash
Prabhakar Naolekar and Lokeshwar Singh Panta, JJ) {S. 12(3) of the Act
provides for an exception to the general rule contained In S. 12(1) (a) that in the event
tenant becomes a defaulter he is liable to be evicted. From the proviso to S.12(3) it is
clear that the protection given to the tenant is only one time protection. Proviso
appended to S.12(3), controls the main provisions. The exemption contained in S 12(3),
thus is not extended to the tenant who becomes a defaulter for more than once.
In the present case suit for eviction on ground of default, sub-letting and
bona fide requirement was filed against the tenant. On institution of the suit, the tenant
deposited the rent within one month of the service of writ of summon of the Court on
him The tenant was therefore granted benefit of S.12(3) and eviction on ground of
default was refused. The suit was however decreed by Trial Court on ground of bona
fide need. Appeal was flied against the decree. During the pendency of appeal before
Supreme Court the tenant neither deposited nor paid rent for three consecutive months
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Landlord therefore filed second suit for eviction on ground of default The dismissal of
second suit on ground that non-deposit of rent in Court in the previous proceedings or
tendering rent to the landlord could not be considered as arrears of rent: and that at
best his defence against eviction could have been struck out under S 13(6) of the Act is
improper. By S. 13(5) the tenant is protected from eviction on ground of default if he
makes and continues to make deposit or pay month by month by 15th of each
succeeding month a sum equivalent to the rent at that rate till the decision of the suit,
appeal or proceeding, as the case may be. If (here is a default for three consecutive
months in the Payment of rent and the rent has not been tendered within two months
of the service of notice by the landlord for payment of arrears, a cause of action
accrued in favour of the landlord to initiate proceedings for ejectment of the tenant by
filing a suit under S.12(1) (a) of the Act and thereafter S.12(3) or S.13(5) would not be
attracted. (Para 10))

Section 12(1) (f)

12) Sheela and others Vs. Firm Prahlad Rai Prem Prakash (AIR 2002 SC 1264, R. C.
Lahoti and Mrs. Ruma Pal, JJ) {While seeking an ejectment on the ground of bona fide
requirement under Cl. (f) the landlord is required to allege and prove not only that he is
a ‘landlord’ but also that he is the ‘owner’ of the premises. The definition of ‘landlord’
and ‘tenant’ as given in CIs. (b) and (i) of S.2 of the Act make it clear that under the Act
the concept of landlordship is different from that of ownership. A person may be a
‘landlord’ though not an ‘owner’ of the premises. The factor determinative of
landlordships is the factum of his receiving or his entitlement to receive the rent of any
accommodation. Such receiving or right to receive the rent may be on the own account
of the landlord or on account of or for the benefit of any other person. A trustee, a
guardian and a receiver are also included in the definition of landlord. Such landlord
would be entitled to seek an eviction of the tenant on one or more of such grounds
falling within the ambit of S .I2 (1) of the Act which do not require the landlord be an
owner also so as to be entitled to successfully maintain a claim for eviction Cl. (f)
contemplates a claim for eviction being maintained by an owner landlord and not a
landlord merely. Though of course that the concept of ownership in a landlord tenant
litigation governed by Rent Control Law has to be distinguished from the one in a title
suit Ownership is a relative term the import where of depends on the context in which it
is used In Rent Control Legislation the landlord can be said to be owner if he is entitled
in his own legal right as distinguished from for and on behalf of someone else to evict
the tenant and then to retain, control, hold and use the premises tor himself What may
suffice and hold goods as proof of ownership in landlord tenant litigation probably may
or may not be enough to successfully sustain a claim for ownership in a title suit.
(Para 10)

Although these cases pertain to section 13) SB. Naronah Vs. Prem Kumar Khanna (AIR 1980 SC 193, V.R. Krishna
21 of the Delhi Rent Control Act, 1959, lyer and P.N. Shinghal, JJ) (Krishna lyer, J. after elaborating the social purpose
the judgment mainly emphasizes on the behind the purpose of section 21, has explained the essential ingredient of section 21 as
concept of tenancy for limited period”. follows (Para 16):
Thus the cases are equally relevant for
Section 19 of the M.P Accommodation The first condition is that the landlord does not require the demised premises “for a
Control Act, 1961 particular period” only. This means that he must indicate to the authority before which
sanction is sought for letting what is the particular period for which he can spare the
accommodation. The Controller must be satisfied that the landlord means what he says
and it is not a case of his not requiring the property indefinitely as distinguished from a
specific or particular limited period of say one year, two years or five years. If a man
has a house available for letting for an indefinite period and he so lets it, even if he
specifies as a pretense, a period or term in the lease, Section 21 cannot be attracted.
On the other hand, if he gives a special reason why he can let out only for a limited
period and requires the building at the end of that period, such as that he expects to
retire by then or that he is going on a short assignment or on deputation and needs the
house when he returns home it is good compliance.

The second condition is that the letting must he made for a residential purpose. The
house must be made over “as a residence’. If it is let out for a commercial purpose,
Section 21 will not apply, whether the ritual of a sanction under that provision has been
gone through or not.

Thirdly, the Controller’s permission is obligatory where he specifies the particular

period for which h gives permission and further qualifies the permission for use as a
residence. The Controller exercises an important regulatory function on behalf of the
community The a landlord and a potential tenant together apply, setting out the formal
ingredients of Section 21, does not relieve the Controller from being vigilant to inquire
and satisfy himself about the requisites of the landlord ’s non-requirement “for a
particular period” and the letting itself being as a residence”. A fraud on the statute
cannot be permitted especially because of the grave mischief that may be perpetrated
in such event.
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 151

Limited scope section 21: The learned Judge further restricted the applicability of
section 21 and held in Prima 17: it is easy to envisage the terrible blow to the rent
control law if Section 14. Every landlord will permitted to subvert the scheme of Section
14. Every landlord will insist on a tenant going through the formal exercise of Section
21, making ideal averments in terms of that section. The consequence will be that both
the Civil Procedure Code which prescribes suits for recovery of possession and the Delhi
Rent Control Act which prescribes grounds for eviction will be eclipsed by the pervasive
operation of Section 21. Neither grounds for eviction nor suits for eviction will thereafter
be needed, and if the landlord moves the court for a mere warrant to place the
landlord, through the court process, in vacant possession of the premises, he gets it. No
court-fee, no decree, no execution petition, no termination of tenancy - wish for
possession and the court is at your command. Such a horrendous situation will be the
negation of the rule of law in this area. So it is that we deem it necessary to lay down
the law as implied in Section 21.”

For the first time in this case the court held that the control can examine
whether sanction under section 21 was granted under fraud or collusion etc.

14) Shrisht Dhawan Vs. Shaw Brothers (AIR 1992 SC 1555, Dr. D.K.
Thommen and R.K. Sahai, JJ) {the court held that the law on procedural aspect
under section 21 should be taken as settled as follows:
* Any objection to the validity of the sanction should be raised prior to expiry of the
lease.

* The objection should be made immediately on becoming aware of fraud, collusion etc.

* A tenant may be permitted to raise objection after expiry of lease in exceptional

circumstances only.

* Burden to prove fraud or collusion is on the person alleging it.

Similarly, on the substantive safeguards, the law that is settled and should
be followed by the authorities may be stated thus:

* Permission granted under section, 2) of the Act can be assailed by the tenant only if it
can be established that it was vitiated by fraud or collusion or Jurisdictional

* Fraud or collusion must relate to the date when permission was granted.

* Permission carries a presumption or correctness which can be permitted to challenged

not only by raising objection but proving it prima facie to the satisfaction of controller
before landlord is called upon to file reply or enter into evidence.

* No fishing or roving inquiry should be permitted at the stage of execution.

* A permission does not suffer from any of these errors merely because no reason was
disclosed in the application at the time of creation of short term tenancy

* Availability of sufficient accommodation either at the time of grant of permission or at

the stage of execution is not a relevant factor of deciding validity of permission.

15. Subhash Kumar Lata Vs. R. C. Chhiba (AIR 1989 SC 458) {held that the
sanction obtained by the landlord from the Rent Controller permitting her to grant
limited tenancy rights in the disputed premises, without disclosing to the Rent Controller
the fact that the disputed premises was already let out under an oral agreement is
defective and infirm.

16) Veena Goel Vs. Pawan Kumar [(1988) I RCR 181] (it was held by the Delhi
High Court that it is duty of applicant to disclose material fact of having created earlier,
a limited tenancy at the time of seeking permission from controller for creating an
another limited tenancy. Having not done so applicant is guilty of suppressing the
material facts which amounts to playing fraud. Therefore, permission so obtained in this
manner has to be treated as nullity.)

17) Natha Singh Vs. H.V. Nayar [(1983) 1 RCJ 158] (it was held:“if a landlord has
not taken steps to obtain possession after the expiry of fixed term tenancy granted with
the permission of the Controller, it does not mean that for all times in future he is
debarred from seeking eviction under section 14.”)

Whether issue of notice to tenant is Whether issue of notice to tenant is necessary before issuing warrant of
necessary before issuing warrant of possession of tenanted premises under section 21 of the Act?
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 152

possession of tenanted premises 18) J.R. Vohra Vs. India Export House Pvt. Ltd (AIR 1985 SC 475) {held that in view of
under section 21 of the Act? non-obstante clause no notice to the tenant is contemplated before issuing the warrant
of possession for putting the landlord in possession.

Equally relevant u/s 19 of the M.P. Equally relevant u/s 19 of the M.P. Accommodation Control Act, 1961
Accommodation Control Act, 1961 19) Shiv Chander Kapoor Vs. Amar Bose (AIR 1990 SC 325, M.N. Venkatachaliah, N. D.
Ojha and & J.S. Verma, JJ) {held that no notice to the tenant before issuing the
warrant of possession in favour of the landlord on his application for recovery of
possession on expiry of the limited tenancy is necessary. No notice is either
contemplated or expedient. This is the reasonable view which is in accord with the
scheme of S.21. Obviously notice is to be given of a fact which may otherwise be not
known to the noticee. The period of limited tenancy and the date of its expiry are
known to the tenant from the very inception The tenant is equally aware of his own
default in restoring vacant possession of such premises to the landlord on expiry of that
period It is only these facts well known to the tenant, which compel the landlord to
apply for recovery of possession pursuant to the tenant’s default The plea of invalidity if
any of Controllers earlier permission must equally be known to the tenant at least by
then coupled with4qs knowledge that unless a declaration is made at his instance that
the Controller’s permission is invalid; he must vacate, the limited tenancy having
expired. Why then should a notice to him at that stage be necessary and for what
useful purpose’ There is no good reason to require a notice to the tenant at that stage.
The object of enquiring into the validity of the Controller’s permission under S.21 is only
to ensure that essentials of a limited tenancy existed and that the same was genuine;
and it is not meant to permit raising of frivolous pleas which would frustrate the very
object of its enactment This view protects the honest tenants and only curbs the
frivolous and vexatious pleas. There is another aspect of the matter. The Controller’s
permission when granted to create a limited tenancy under 5.21 is presumed 10 be
valid unless declared otherwise. It is, therefore, for the person assailing its validity to
get such a declaration from a proper forum in a proper proceeding. Unless this is done,
the order remains enforceable. The duty is clearly on the tenant himself CO raise the
plea of invalidity and unless the order is declared invalid at his instance, its
enforceability cannot be doubted.

FEW MORE CASES

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 153

LAW COMISSION OF INDIA

After independence, the Constitution of India with its Fundamental Rights and Directive Principles of State Policy gave a new direction to
law reform geared to the needs of a democratic legal order in a plural society. Though the Constitution stipulated the continuation of pre-Constitution
Laws (Article 372) till they are amended or repealed, there had been demands in Parliament and outside for establishing a Central Law Commission to
recommend revision and updating of the inherited laws to serve the changing needs of the country. The Government of India reacted favourably and
established the First Law Commission of Independent India in 1955 with the then Attorney- General of India, Mr. M.C. Setalvad, as its Chairman.

Since then nineteen more Law Commissions have been appointed each with three-year term and with different terms of reference The
names of Chairman who presided over these Commissions are given below -
First Law Commission 1956-1958 (1-14 Reports) Mr. M.C. Setalwad
Second Law Commission 1958-61 (15-22 Reports) Mr. Justice T.V. Venkatrama Aiyar.
Third Law Commission 1961- 64 (23-28 Reports) Mr Justice J.L Kapur .
Fourth Law Commission 1964-68 (29-38 Reports) Mr Justice J.L Kapur
Fifth Law Commission 1968-71 (39-44 Reports) Mr.K.V.K Sundaram, I.C.S.
Sixth Law Commission 1971-74 (45-61 reports) Mr. Justice Dr. P.B. Gajendragadkar
Seventh Law Commission 1974-77 (62-70 Reports) Mr.Justice Dr. P.B. Gajendragadkar
Eighth Law Commission 1977-79 (71-80 Reports) Mr. Justice H.R. Khanna
Ninth Law Commission 1979-80 (81-87 Reports) Mr. Justice P.V. Dixit
Tenth Law Commission 1981-85(88-113 Reports) Mr. Justice K.K. Mahthew
Eleventh Law Commission 1985-88 (114-131Reports) Mr. Justice D.A Desai
Twelfth Law Commission 1988-91 (132-143Reports) Mr. Justice M.P Thakkar
Thirteenth Law Commission 1991-94 (144-153Repots) Mr. Justice K. N. Singh
Fourteenth Law Commission 1995- 97 (154-156Reports) Mr. Justice K Jayachandra Reddy
Fifteenth Law Commission 1997-2000(157-174 Reports) Mr. Justice B.P.Jeevan Reddy
Sixteenth Law Commission 2000-2001; 2002-2003 (175-185 Reports) Mr. Justice B.P. Jeevan Reddy
Seventeenth Law Commission 2003- 2006(186-201 Reports) Mr. Justice M Jagannadha Rao
Eighteenth Law Commission -2006-2009 (202-234 Reports) Dr. Justice AR Lakshmanan
Nineteenth Law Commission- 2009-2012 (235-236) Shri Justice P. Vs. Reddi

First Law Commission

(Chairman Mr. M.C Setalvad 1955-1958)
1. Liability of the State in Torts. 1956
2. Parliamentary Legislation relating to Sales Tax. 1956
3. Limitation Act, 1908, 1956
4. On the proposal that High Courts should sit in Benches at different places in a State. 1956
5. British Statutes applicable to India. 1957
6. Registration Act, 1908 1957
7. Partnership Act, 1932 1957
8. Sale of Goods Act, 1930 1958
9. Specific Relief Act, 1877 1958
10. Law of Acquisition and Requisitioning of Land. 1958
11. Negotiable Instruments Act, 1881 1958
12 Income Tax Act, 1958
13. Contract Act, 1958
14. Reform of Judicial Administration. 1958

Second Law Commission

(Chairman Mr. Justice T.L Venkatrama Aiyar 1958-1961)

15. Law relating to Marriage and Divorce amongst Christians in India. 1960
16. Official Trustees Act. 1913. 1960
17. Report on Trusts Act, 1882. 1961
18. Converts’ Marriage Dissolution Act, 1866. 1961
19. The Administrator-General’s Act 1913. 1961
20. The Law of Hire-Purchase 1961
21. Marine Insurance 1961
22. Christian Marriage and Matrimonial Causes Bill, 1961 1961

Third Law Commission

(Chairman Mr. Justice J.L. Kapur 1961-1964)
23. Law of Foreign Marriages. 1962
24. The Commission of Inquiry Act, 1952 1962
25. Evidence of Officers about forged stamps, currency notes, etc. Section 509-A 1963
Cr. P.C. as proposed.
26. Insolvency Laws 1964
27. The Code of Civil Procedure, 1908. 1964
28. The Indian Oaths Act, 1873. 1964

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 154

Fourth Law Commission

(Chairman Mr Justice J.L. Kapur 1964-1968)
29. Proposal to include certain Social & Economic Offences in the Indian Penal Code 1966
30. Section of the Central Sales Tax Act, 1956 taxation by the States of Seles in the course of 1967
import.
31. Section 30(2) of the Indian Registration Act, I908-Extension to Delhi 1967
32. Section 9 of the Code of Criminal Procedure, 1898-Appointment of, Session Judges 1967
Additional Session judges Assistant Session judges.
33. Section 44, Code of Criminal Procedure, 1898. 1967
34. Indian Registration Act, 1908. 1967
35. Capital Punishment. 1967
36. Sections 497 498 and 499 of the Code of Criminal Procedure 1892-Grant of bail with 1967
condition.
37. The Code of Criminal Procedure 1898 (Sections 1 to 176). 1967
38. Indian Post Office Act, 1898 1968

Fifth Law Commission

(Chairman Mr. K. Vs. K. Sundaram 1968-1971)
39. Punishment of imprisonment for life under the Indian Penal Code 1968

40. Law relating to attendance of Prisoners in Courts. 1969

41. The Code of Criminal Procedure, 1898. 1969

42. Indian Penal Code. 1971

43. Offences against the National Security. 1971

44. The Appellate jurisdiction of the Hon’ble Supreme Court in Civil Matters. 1971

Sixth Law Commission

Chairman Mr. Justice Dr. P. B. Gajendragadkar 1971-1974)
45. Civil Appeals to the Hon’ble Supreme Court on a Certificate of Fitness 1971
46. The Constitution (Twenty-fifth Amendment) Bill, 1971. 1971
47. The Trial and Punishment of Social and Economic Offences. 1972
48. Some questions under the Code of Criminal Procedure Bill, 1970. 1972
49. The Proposal for inclusion of agricultural income in the total income for the purpose 1972
of determining the rate of tax under the Income-tax Act, 1961
50. The Proposal to include persons connected with Public examination within definition 1972
of Public Servant” in the Indian Penal Code
51. Compensation for injuries caused by automobiles in hit-and-run cases 1972

52. Estate Duty on Property acquired after death. 1972

53. Effect of the Pensions Act 1871 on the right to sue for pensions of retired members 1972
of the public services.
54. The Code of Civil Procedure 1908 1973
55. Rate of interest after decree and interest on costs under sections 34 and 35 of the 1973
Cede of Civil Procedure, 1908
56. Statutory Provisions as to Notice of suit other than section 80 Civil 1973
Procedure Code.
57. Benami Transactions. 1973
58. Structure and Jurisdiction of the Higher Judiciary 1974
59. Hindu Marriage Act, 1955 and Special Marriage Act, 1954. 1974
60. The General Clauses Act, 1897 1974
61. Certain problems connected with power of the States to levy a tax on the sale of 1974
goods and with the Central Sales Tax Act, 1956.

Seventh Law Commission

(Chairman Mr. Justice Dr. P. B. Gajendragadkar 1974-1977)
62. Workmen’s Compensation Act, 1923. 1974
63. The Interest Act, 1839. 1975
64. The Suppression of Immoral Traffic in Women and Girls Act, 1956. 1975
65. Recognition of Foreign Divorces 1976
66. Married Women’s Property Act, 1874. 1976
67. The Indian Stamp Act, 1899. 1977
68. The Powers of Attorney Act 1882 1977
69. The Indian Evidence Act 1872 1977
70. The Transfer of Property Act 1882 1977 1977

Eighth Law Commission

(Chairman Mr. Justice H. R. Khanna, 19774979)
71. The Hindu Marriage Act 1955- irretrievable break & down of marriage as a gourd of 1978
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 155

divorce.
72. Restriction on practice after being a permanent Judge Article 220 of the Constitution. 1978
73. Criminal liability for failure by Husband to pay maintenance or permanent alimony 1978
granted to the wife By the court under certain enactments or rules of law.
74. Proposal to amend the Indian Evidence Act 1872 so as to render Admissible certain 1978
statements made By witnesses before Commission of inquiry and other statutory
authorities.
75. Disciplinary under the Advocates Act 1961 1978
76. Arbitration Act, 1940. 1978
77. Delay and arrears in trial courts. 1979
78. Congestion of under trial prisoners in jails. 1979
79. Delay and Arrears in High Courts and other Appellate Court. 1979
80. Method of Appointment of Judges. 1979

Ninth Law Commission

(Chairman Mr. Justice P. Vs. DLit 1979-1980)

81. Hindu Widows Re-marriage Act, 1856. 1979

82. Effect of nomination under section 39, Insurance Act, 1938. 1980
83. The Guardians and Wards Act, 1890 and certain provisions of the Hindu Minority and 1980
Guardianship Act, 1956.
84. Rape and allied offences-some questions of substantive law, procedure and evidence. 1980
85. Claims for compensation under Chapter 8 of the Motor Vehicles Act, 1939. 1480

86. The Partition Act, 1893. 1980

87. Identification of Prisoners Act 1920. 1980

Tenth Low Commission

(Chairman Mr Justice K K.Mathew 1981-1985)
88. Governmental Privilege in Evidence Section; 123-124 and 162 Indian Evidence Act 1872 and 1983
Articles 74 and 163 of the Constitution
89. The Limitation Act 1963. 1983
90. The Grounds of Divorce amongst Christians in India section 10, of the Indian Divorce Act 1869 1983

91 . Dowry deaths and law reform Amending the Hindu Marriage Act 1955 the Indian Penal Cede, 1983
1860 and the Indian Evidence Act, 1872
92. Damages in applications for Judicial Review Recommendations for legislation. 1983

93. Disclosure of sources of information by mass media. 1983

94. Evidence obtained illegally or improperly proposed section 166A Indian Evidence Act, 1872. 1983
95. Constitutional Division within the Hon’ble Supreme Court- A proposal for. 1984
96. Repeal of certain obsolete Central Acts. 1984
97. Section 28, Indian Contract Act, 1872: prescriptive clauses in contracts 1984
98. Sections 24 to 26, Hindu Marriage Act, 1955: Orders for interim maintenance and orders for 1984
the maintenance of children in matrimonial proceedings.
99. Oral and written arguments in the Higher courts. 1984
100. Litigation by and against the Government: some recommendations for reform. 1984
101. Freedom of Speech and Expression under Article 19 of the Constitution recommendation to 1984
extend it to Indian Corporations.
102. Section 122(I) of the Code of Criminal Procedure 1973 imprisonment for breach of bond for 1984
keeping the peace with sureties.
103. Unfair Terms in Contract. 1984
104. The judicial Officers Protection Act 1850. 1984
105. Quality Control and Inspection of Costumer goods. 1984
106. Section 103A Motor Vehicles Act, 1939 effect of Transfer of a motor Vehicle on Insurance. 1984
107. Law of Citizenship 1984
108. Promissory Estoppel. 1984
109. Obscene and Indecent advertisements and Displays sections 292 293 Indecent Indian Penal 1985
Code.

110. The Indian Succession Act, 1925. 1985

111. The Fatal Accidents Act, 1855. 1985
112. Section 45 of the Insurance Act, 1938. 1985
113. Injuries in Police Custody Suggested section 1 14B Evidence Act. 1985

Eleventh Law Commission

(Chairman Mr. Justice D. A. Desai 1985-1988)
114. Gram Nyayalaya. 1986
115. Tax Courts. 1986
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 156

116. Formation of an All India Judicial Service. 1986

117. Training of Judicial Officers. 1986
118. Method of appointment to subordinate courts subordinate Judiciary. 1986
119. Access to Exclusive Forum for Victims of Motor Accidents under Motor Vehicles Act, 1939. 1987
120 Manpower Planning in Judiciary: A Blueprint 1987
121. A New Forum for Judicial Appointments. 1987
122. Forum for National Uniformity in Labour Adjudication. 1987
123. Decentralisation of Administration of Justice: Disputes Involving Centres of Higher Education. 1988
124. The Hon’ble High Court Arrears- A Fresh Look. 1988
125. The Hon’ble Supreme Court- A Fresh Look. 1988
126. Government and Public Sector Undertaking Litigation Policy and Strategies. 1988
127. Resource Allocation for Infra structural Services In Judicial Administration (A continuum of the
Report on Manpower Planning Judiciary A Blueprint).
128. Cost of Litigation. 1988
129. Urban Litigation - Mediation as alternative to Adjudication 1988
130. Benami Transactions A Continuum 1988
131 Role of legal profession in Administration of Justice. 1988

Twelfth Law Commission

(Chairman Mr. Justice M P Thakkar 1988- 1991)
132. Need for Amendment of the Provisions of the Chapter IX of the Code of Criminal Procedure, in 1989
order to ameliorate the hardship and mitigate the distress of Neglected Women, Children and
Parents.
133. Removal of Discrimination against Women in matters relating to Guardian hip and Custody of 1989
Minor Children and Elaboration of the Welfare principle.
134. Removing Deficiencies in certain Provisions of the Workmen’s Compensation Act, 1923. 1989

135. Women in Custody. 1989

136. Conflicts in High Court Decisions on Central Laws- How to foreclose and how to resolve. 1990

137. Need for creating office of Ombudsman and for evolving legislative administrative measures 1990
inter-alia to relieve hardships caused by inordinate delays in settling Provident Fund claims of
beneficiaries.
138. Legislative Protection for Slum and Pavement Dwellers. 1990
139. Urgent need to amend Order XXI, Rule 92(2), Code of Civil Procedure to remove an anomaly 1991
which nullifies the benevolent intention of the legislature and occasions injustice to judgement-
debtors sought to benefited.
140. Need to amend Order V, Rule 19A of the Code of Civil Procedure, 1908,relating to service of 1991
summons by registered post with a view to foreclose likely injustice.
141. Need for amending the law as regards power of courts to restore criminal revisional 1991
applications and criminal cases dismissed for default in appearance.
142. Concessional treatment for offenders who on their own initiative choose plead guilty without 1991
any bargaining.
143. Legislative safeguards for protecting the small depositors from exploitation. - 1991

Thirteenth Law Commission

(Chairman Mr. Justice K. N. Singh 1991-1994)
144. Conflicting Judicial decisions peitain4ng to the Cede of Civil Procedure,1908 1992
145. Article 12 of the Constitution and Public Sector Undertakings. 1992
146. Sale of Women and Children Proposed Section 373 A Indian Penal Code. 1993

147. The Specific Relief Act, 1963. 1993

148. Repeal of Certain pre 1947 Central Acts. 1993
149 Removal of certain deficiencies in the Motor Vehicles Act, 1988 (Act No .v 59 of 1988). 1994

150. Suggesting seine Amendments to the Code of Civil Procedure (Act No. V of 1908). 1994

151. Admiralty Jurisdiction. 1994

152. Custodial Crimes. 1994
153. Enter-Country Adoption. 1994

Fourteenth Law Commission

(Chairman Mr. Justice K.J. Reddy 1995-1997)
154. The Code of Criminal Procedure, 1973 (Act No. 2 of 1974). 1996
155. The Narcotics Drugs and Psychotropic Substances Act, I 985(Act No. 61 of 1985). 1997

156. The Indian Penal Code. 1997

Fifteenth Law Commission

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(Chairman Mr Justice B.P. Jeevan Reddy 1997-2000)

157. Section 52 Transfer of Property Act 1882 and its Amendment. 1998

158. The Amendment of the Industries (Development and Regulation) Act,1951 1998
159. Repeal and Amendment of Laws Part I. 1998
160. Amendment to the All India Council for Technical Education Act, 1987 (Act No.52 of 1987) 1998
161. Central Vigilance Commission and Allied Bodies. 1998
162. Review of functioning of Central Administrative Tribunal, Customs, Excise and Gold (Control) 1998
Appellate Tribunal and Income Tax Appellate Tribunal.
163. The Code of Civil procedure (Amendment) Bill 1997. 1998
164. The Indian Divorce Act, 1869 (Act IV of 1869) 1998
165. Free-and Compulsory Education for Children. 1998
166. The Corrupt Public Servants (forfeiture of property) Bill. 1999
167. The Patents (Amendment) Bill, 1998. 1999
168. The Hire-Purchase Act, 1972 1999
169. Amendment of Army, Navy and Air Force Act. 1999
170. Reform of the Electoral Laws. 1999
171. The Biodiversity Bill, 2000. 2000
172. Review of Rape Laws. 2000
173. Prevention of Terrorism Bill, 2000. 2000
174. Property Rights of Women: Proposed Reforms Under the Hindu Law 2000

Sixteenth Law Commission

(Chairman Mr Justice B.P. Jeevan Reddy 2000-2001)
(Chairman Mr Justice M Jagannadhn Rao 2002-2003)
175. The Foreigners (Amendment) Bill 2000. 2000
176. The Arbitration and conciliation (Amendment) Bill 2002. 2001
177. Law Relating to Arrest. 2001
178. Recommendations for amending various enactments, both civil and criminal 2001
179. Public Interest Disclosure and Protection of lnformers 2001
180. Article 20(3) of the Constitution of India and Right to Silence. 2002
181. Amendment to Section 106 of the Transfer of Property Act 1882 2002
182. Amendment of Section 6 of the Land Acquisition Act, 1894 2002
183. A Continuum on the General Clauses Act, 1897 with special reference to the admissibility and 2002
codification of external aids to interpretation of statutes.
184. Legal Education & Professional Training and Proposals for amendments to 2002 the Advocates 2002
Act, 1961 and the University Grants Commission Act, 1956.
185. Review of the Indian Evidence Act, 1872. 2003

SEVENTEENTH LAW COMMISSION

(Chairman Mr Justice M Jagannadha Rao 2003-2006)
186. Proposal to Constitute Environment Courts 2003
187. Mode of Execution of Death Sentence and Incidental Matters 2003
188. The Proposals for Constitution of Hi-Tech Fast - Track Commercial Divisions in High Courts 2003
189. Revision of Court Fees Structure 2004
190. The Revision of the Insurance M, 1938 and the Insurance Regulatory and Development Authority 2004
Ach I999’
191. Regulation of Funds collected for Calamity Relief. 2004
192. Prevention of vexatious Litigation 2005
193. Transnational Litigation Conflict of Laws Law of Limitation 2005
194. Verification of Stamp Duties and Registration of Arbitral Awards. 2005
195. The Judges (inquiry) Bill 2005 2006
196. Medical Treatment to Terminally Ill Patients (Protection of Patients and Medical Practitioners) 2006
197. Public Prosecutor’s Appointments. 2006
198. Witness Identity Protection and Witness Protection Programmes. 2006
199. Unfair (Procedural and Substancive) Terms in Contracts 2006
200. Trial by Media: Free Speech Vs. Fair Trial Under Criminal Procedure (Amendments to the 2006
Contempt of Court Act, 1971)
201. Medical Treatment after Accidents and During Emergency Medical Condition and Women in 2006
Labour

EIGHTEENTH LAW COMMISSION

(Chairman Dr. Justice AR. Lakshmanan 2007-2009)
202. Proposal to Amend Section 304-B of the Indian Penal Code 2007
203. Section 438 of the Code of Criminal Procedure 1973 as Amended by the ode of Criminal 2007
Procedure (Amendment) Act, 2005 (Anticipatory Bail)
204. Proposal to Amend the Hindu Succession Act 1956 as amended by Act 39 of 2005. 2008
205. Proposal to Amend the Prohibition of Child Marriage Act, 2006 and other allied Laws. 2008
206. Proposal for enactment of new Coroners Act applicable to the whole of India 2008

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207. Proposal to amend Section 15 of the Hindu Succession Act. 1956 in case a female dies intestate 2008
leaving herself acquired property with no heirs.
208. Proposal for amendment of Explanation to Section 6 of the Hindu Act. 1956 to include oral 2008
partition and family arrangement on the definition of ‘partition”
209. Proposal for omission of Section 213 from the Indian Succession Act, 1925 2008
210. Humanization and Decriminalization of Attempt to suicide 2008
211. Laws on Registration of Marriage and Divorce —A Proposal for Consolidation and Reform 2008
212. Laws of Civil Marriages in India A proposal to Resolve Certain Conflicts 2008
213. Fast Track Magisterial Courts for Dishonored Cheque Cases 2008
214. Proposal for reconsideration of Judges cases 1, II and III- SP GUPTA Vs. UOI 2008

215. L. Chandra Kumar be revisited by Larger bench of Supreme Court of India 2008

216. Non Feasibility of Introduction of Hindi as Compulsory Language in the Hon’ble Supreme Court of 2008
India

217. Irretrievable Breakdown of Marriage- Another Ground for Divorce. 2009

218. Need to accede to the Hague Convention on the Civil Aspects of International Child Abduction 2009
(1980).
219. Need for Family Law Legislations for Non-resident Indians. 2009

220. Need to fix Maximum Chargeable Court-fees in Subordinate Civil Courts. 2009

221. Need for Speedy Justice— Some Suggestions. 2009

222. Need for Justice-dispensation through ADR etc. 2009
223. Need for Ameliorating the lot of the Have-nots - Supreme Court’s Judgments. 2009

224. Amendment of Section 2 of the Divorce Act 1869 Enabling Non-domiciled Estranged Christian 2009
Wives to seek Divorce.
225 .Amendment of Sections 7, 7A, and 78 of Industrial Disputes Act 1947 Making Advocates Eligible 2009
to man Labour Courts and Industrial Tribunals 2009
226 The inclusion of Acid Attacks as Specific Offences in the Indian Penal code and a Law for 2009
Compensation for Victims of Crime.
227. Preventing Bigamy via Conversion to Islam A Proposal for giving Statutory Effect to Supreme 2009
Court Rulings
228. Need For Legislation to Regulate Assisted Reproductive Technology Clinic’ is Well as Rights and 2009
Obligations of Parties to a Surrogacy
229. Need for division of the Hon’ble Supreme Court into Constitution Bench at Delhi and Cassation 2009
Benches in four regions at Delhi, Chennai, Hyderabad, Kolkata & Mumbai.
230. Reforms in the Judiciary- Some suggestions 2009
231. Amendments in Indian Stamp Act 1841 And Court-Fees Act 1870 Permitting Different Modes of 2009
Payment
232. Retirement Age of Chairpersons and Members of Tribunals-Need for uniformity 2009
233. Amendment of Code of Criminal Procedure Enabling Restoration of complaints 2009
234 . legal Reforms to Combat Road Accidents 2009

Nineteenth Law Commission

(Chairman Mr. Justice P. Vs. Reddi, 2009-2012)
235. Conversion/reconversion to another religion - mode of proof 2010
236. Court-fees in Supreme Court vis-a-vis Corporate Litigation 2010
237. Compounding of IPC Offence 2011
238. Amendment of section 89 CPC and other allied provisions 2011

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 159

IMPORTANT REPORTS OF LAW COMMISSION OF INDIA

REPORT NO CHAIRMANSHIP IMPORTANT RECOMMENDATIONS

/
PRESENTATION
DATE

153 K.N. Singh, The Law Commission has quoted Laxmi Kant Pandey Vs. Union of India (1984) 2 SCR
(Inter Country August 26 1994 795 in which SC laid down guidelines for inter country adoption. These guidelines are
Adoptio) further elucidated in Laxmi Kant Pandey Vs. Union of India (AIR1987 SC 232).

The commission has drafted a bill on Inter Country Adoption.

154 The Law Commission has recommended various changes in Cr.PC including the
(The Code of incorporation of plea bargaining in Criminal administration of justice.
Criminal
Procedure Note: The government has accepted the recommendation of the Commission and
1973 Vol. I) through Criminal Law Amendment Act 2005 a new chapter XXIA (containing secs.
265A-265L) has been inserted in Cr.PC.

172 B P Jeevan CHANGES RECOMMENDED IN THE INDIAN PENAL CODE, 1860

(Review of Reddy
Rape laws) March 25, 2000 The existing section 375 be substituted by the following:
375 SEXUAL ASSAUL : Sexual assault means
a) Penetrating the vagina (which term shall include the labia majora), the anus or
urethra of any person with:
1. Any part of the body of another person or
2. An object manipulated by another person
Except where such penetration is carried out for proper hygienic or medical purposes.
b) Manipulating any part of the body of another person so as to cause penetration of
the vagina which term shall include labia majora), the anus or the urethra of the
offender by any part of the others person’s body.
c). Introducing any part of the penis of a person into the mouth of another person.
d) Engaging in cunnilingus or fellatio; or
e) Continuing sexual assault as defined in clauses (a) to (d)

In circumstances falling under any of the six following descriptions: against her will,
against her consent etc.
# Recasting of section 376 recommended.
# Modification in section 376A IPC recommended.
# Amendment of section 376B, 376C and 376D- enhancement of punishment with a
minimum punishment of not less than five years.
# Insertion of new section 376E i.e. UNLAWFUL SEXUAL CONTACT
# Deletion of section 377
# Amendment of section 509 for enhancement of punishment
# Insertion of new section 166A

CHANGES RECOMMENDED IN THE CR.PC.

Insertion of 164A regarding medical examination of victim of rape (Inserted by Act

25 of 2005)

Insertion off new section 53A regarding examination of person accused of offences u/s
376, 376A-376D (inserted by Act 25 of 2005)
174 (Property B.P. Jeevan Social justice demands that a woman should be treated equally both in the economic
rights of Reddy and the social sphere. The exclusion of daughters from participating in coparcenery
women: May 5 2000 property ownership merely by reason of their sex is unjust. The Commission has also
Proposed taken into consideration the changes carried out by way of State enactments in the
Reforms under concept of Mitakshara coparcenery property in the five States in India, namely, Kerala,
the Hindu Andhra Pradesh, Tamil Nadu, Maharashtra and Karnataka. The Commission feels that
Law) further reform of the Mitakshara Law of Coparcenery is needed to provide equal
distribution of property both to men and women. Thus, the Commission recommended
the government to make an amendment in the Hindu Succession Act 1956 to give
daughters equal rights as given to a son in coparcenery property.

Note: the Commission’s recommendations have been accepted through the Hindu
Succession (Amendment) Act 2005 (w.e.f. 09-09-2005) and daughter are made
coparceners and provided with equal rights with that of son. Few more amendments
have been made in the Act to establish the absolute equality between son and daughter
with respect to inheritance coparcenery property.

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 160

I87 (Mode of M. Jagannadha The Commission has recommended that section 354(5) of the Cr.PC 1973 be amended
execution of Rao by providing an alternative mode of execution of death sentence by lethal injection until
Death October 17 2003 the convict is dead.
sentence and
incidental
matters

195 [the M. Jagannadha The Commission has given its recommendation on the judges (Inquiry) Bill, 2005.
Judes Rao, January31 Following are few important recommendations:
(Inquiry) Bill, 2006
2005] Judicial independence is not absolute. Judicial independence and accountability are two
sides of the same coin. The present proposal in the 2005 Bill together with our
recommendations for enabling the Judicial Council to impose ‘minor measures’ including
stoppage of assignment of judicial work is constitutional valid. They ought not to be
viewed as encroachment of the independence of the judiciary.

Sec. 3(1) of the 2005 Bill which provides for establishment of National judicial Council
consisting only of judges is constitutionally valid and is consistent with the concept of
independence of judiciary, judicial accountability and doctrine of separation of powers.

Commission is of the opinion that the Bill takes the correct stand that the Chief Justice
of India should not be subject to complaint procedure. Provision in this behalf is neither
discriminatory nor arbitrary.

196 [Medical M. Jagannadha There is need to have a law to protect patients who are terminally ill, when they take
treatment to Rao April 28 decisions to refuse medical treatment, including artificial hydration, so that they may
terminally ill 2006 not be considered guilty of the offence of ‘attempt to commit suicide’ under sec. 309 of
patients the Indian penal Code, 1860.
(Protection of
Patients and It is also necessary to protect doctors (and those who act under their directions) who
Medical obey the competent patient’s informed decision or who, in the case of (1) incompetent
Practitioners person or (2) competent patients whose decisions are not informed decisions, and
decide that in the best interest of such patients, the medical treatment need to be
withheld or withdrawn as it is not likely to serve any purpose. Such action of doctors
must be declared by statute to be lawful in order to protect doctors and those who act
under their directions if they are hauled up for the offence of; abetment of suicide’
under sets. 305 and 306 of the Indian penal Code or for the offence of culpable
homicide not amounting to murder under sec 299 read with sec 304 IPC or in actions
under civil law.

205 (Proposal Dr. AR Child marriage below a certain age i.e. 16 years of age be made void.
to amend the Lakshmanan,
Prohibition of February 5 2008 All the marriages between 16 to 18 years should be made voidable at the option of
Child Marriage either party.
Act, 2006 and
other allied The exception to the rape u/s 375 IPC be deleted. This would ensure that the age of
laws) consent for sexual intercourse for all girls, whether married or not would have been 16
years.

Registration of marriage with in a stipulated period of all the communities should he

made mandatory.

The age of marriage for both boys and girls should be made 18 years as there is no
scientific reason why there should be, difference in their age.

207 Dr AR In section 15 of the Hindu Succession Act 1956 section 15(2) I be added as follows:
(Proposal to Lakshmanan Section 15 (2) I : if a female Hindu leaves any self acquired property, in The absence of
amend section June 10 2008 husband and any son or daughter of the deceased (including children of any
15 of Hindu predeceased son or daughter), the said property would devolve not upon heirs as
Succession Act mentioned in sub-section (I) in the chronology, but the heirs in category (b)+(c) would
1956) inherit simultaneously. If she has no heir in category (c), then heirs I category (b)+(d)
would inherit simultaneously.

210 Dr AR Section 309 IPC needs to be effaced from the statute book because the provision is
(Humanization Lakshmanan inhuman irrespective of whether it is constitutional or unconstitutional The repeal of the
and October 17 2008 anachronistic law contained in section 3091PC would save many lives and relived the
decriminalizati distress of his suffering.
on of attempt
to commit
suicide)
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214 Dr AR Four important judgments on the basis of which present system of appointment of
(Proposal for Lakshmanan judges by collegiums has been created:
Reconsideratio November 21
n of Judges 2008 S.P. Gupta Vs. Union of India (AIR 1982 SC 149) (Seven Judge Bench) (Majority
cases 1, II Judgment delivered by P. N Bhagwati J.)
and III-S.P.
Gupta Vs UOI Subhash Sharma v Union of India [(1991) I Supp. SCC 594] (Three judge Bench,
reported in Rangnath Mishra, CJ. MN. Venkatachaliah and M.M. Punchi, JJ.) {The Court had
AIR 1982 SC expressed doubts about the correctness of the interpretation of the word “consultation”
149, Supreme in regard to the appointment of judges in S.P. Gupta Vs. Union of India (AIR 1982 SC
Court-- 149). The Court observed in para 45 as follows:
Advocates on-
Record
“The view which the four learned judges shared in Gupta’s case, in our opinion, does
Association Vs
not recognize the special and pivotal position of the Institution of the Chief Justice of
UOI reported
India. The correctness of the opinion of the majority in S.P. Gupta case relating to the
in 1993
status and importance of consultation, the primacy of the position of the Chief Justice
(4)SCC 441
of India and the view that the fixation of judge strength is not justiciable should be
and Special
reconsidered by a larger Bench.”
Reference 1 of
Therefore, only two questions were referred to the Bench of nine Judges namely (I)
1998 reported
The position of Chief Justice of India with reference to primacy and (2) the justiciability
in 1998 (7)
of the fixation of the judge strength Apart from these two no other question was
5CC 739
referred to the larger bench
Supreme Court Advocate on Record
Association Vs. Union of India [(1993) 4 SCC
441,AIR 1994 SC 268] (Nine Judge Bench)
(Majority Judgment delivered by J.S Verma J)

Special Reference 1 of 1998 [(1998)7 SCC 739] (Nine Judge Bench)

The Law Commission in this report after narrating the history of rewriting the
Constitutional provision in regard to appointment of Sc and HC judges through the
above cases recommended the scrapping of the collegiums system which according to
the Law Commission is against Constitutional scheme.

215 Dr. AR A radical change was brought about in the Constitutional law through section 46 of the
(L. Chandra Lakshmanan Constitution (Forty Second Amendment) Act, 1976, which inserted new part XIVA on
Kumar be December 17 Tribunals in the Constitution. Article 323A empowers Parliament to provide, by law, for
revisited by 2008 the adjudication or trial by administrative tribunals of disputes and complaints with
larger bench respect to recruitment and conditions of service of persons appointed to public services
of Supreme and posts in connection with the affairs of the Union or of any State. The law may
Court) provide for the establishment of an administrative tribunal for the Union and a separate
administrative tribunal for the Union and a separate administrative tribunal for each
State or for two or more States. The law may take out adjudication of disputes relating
to service matters from the hands of Civil Courts and the Hon’ble High Courts.

Pursuant to the provision of Article 323A, Parliament enacted the Administrative

Tribunals Act, 1985, to establish an Administrative Tribunal for the Union, viz., the
Central Administrative Tribunal and a separate Administrative Tribunal for a State or a
Joint Administrative Tribunal for two or more States. The establishment of
Administrative Tribunals became necessary since a large number of cases were pending
before various Courts. It was expected that the setting up of the Administrative
Tribunal would not only reduce the burden of courts, but would also provide speedy
relief to the, aggrieved public servants.

In P. Sampath Kumar [1985) 4 SCC 458] the Hon’ble Supreme Court directed the
carrying out certain measures with a view to ensuring the functioning of the
Administrative Tribunals along Constitutional sound principles The changes were
brought about in the Act by an Amending Act of-1986. Jurisdiction of the Hon’ble
Supreme Court was restored under Article 32 of the Constitution. Constitutional validity
of the Act was finally upheld in S.P. Sampath Kumar [(1987) 1 SCC-124} subject of
course, to certain amendments relating to the form and contents of the Administrative
Tribunals. The suggested amendments were carried out by another amending Act (51
of 1987). Thus Administrative Tribunals became the real and effective substitutes for
the Hon’ble High Courts.

In 1987, a seven Judge Bench of the Hon’ble Supreme Court (A. M. Ahmadi, C.J.I., M.
M, Punchhi, K. Ramaswamy, S. P. Bharucha, S. Saghir Ahmad, K. Venkataswami and K.
T. Thomas, JJ.) in L. Chandra Kumar Vs. Union of India (AIR 1987 SC 1125) speaking
through a unanimous judgment by A.M. Ahmadi, C.J.I., held that Clause 2(d) of Article
323A and Clause 3(d) of Article 323B, to the extent they empower Parliament to
exclude the jurisdiction of High Courts and the Hon’ble Supreme Court under Article

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 162

226/227 and 32 of the Constitution, are unconstitutional. Section 28 of the 1985 Act
and “exclusion of jurisdiction” clauses in all other legislations enacted under the aegis of
Article 323A and 323B would, to the same extent, be unconstitutional. The Court held
that the jurisdiction conferred upon the Hon’ble High Courts under Article 226/227 and
the Hon’ble Supreme Court under Article 32 is part of inviolable Basic structure of the
Constitution. All decisions of the Administrative Tribunals are subject to scrutiny before
a division bench of the Hon’ble High Court within whose jurisdiction the concerned
Tribunal falls.

As a result, orders of the Administrative Tribunals are being routinely appealed against
in High Courts, whereas this was not the position prior to the L. Chandra Kumar’s case.

On 18 March, 2006, the Administrative Tribunals (Amendment) Bill 2006 was introduced
in Rajya Sabha to amend the Act by incorporating therein inter alia provisions
empowering the Central Government to abolish Administrative Tribunals, AND FOR
APPEAL To high Court to bring the Act in line with L. Chandra Kumar. The Deportment
related, Parliament Standing Committee on Personnel Public Grievance Law and justice
in its 17th Report on the said Bill didn’t subscribe to the same and as for the provision
for appeal to High Court expressed the -view that the original conception of the
Administrative Tribunals be restored and appeal to High Court is unnecessary, and that
if a statutory appeal is provided it should lie to the Hon’ble Supreme Court only.

In the above backdrop, the Law Commission took up the study on the subject suo
moto. The Administrative Tribunals were conceived as and constitute as real and
effective substitute for the Hon’ble High Courts as regards service matters. Moreover,
the power of judicial review of the Hon’ble High Courts cannot be called as inviolable as
that of the Hon’ble Supreme Court The very objective of the establishment of
Administrative Tribunal is defeated if all the cases adjudicated by them have to go
before the concerned High Courts. If one appeal is considered to be a must, an intra
tribunal appeal would be the best option, and then the matter can be taken to Supreme
Court by way of special leave petition under Article 136. Thus, the Commission
recommended that the L, Chandra Kumar case should be revisited by a larger bench of
the Hon’ble Supreme Court or necessary and appropriate amendments may be effected
in the Act in accordance with law.

217 Dr. A.R. Prior to this the Law Commission of India in its 71st Report titled “The Hindu Marriage
(Irretrievable Lakshmanan, Act, 1955-Irretrievable breakdown of marriage as ground of divorce” recommended
breakdown of March 30 2009 amendments in the Hindu Marriage Act to make irretrievable breakdown of marriage as
marriage- a new ground for granting divorce among the Hindus.
Another
ground Immediate action be taken to introduce an amendment in the Hindu Marriage Act 1955
for divorce) and the Special Marriage Act 1954 for inclusion of irretrievable breakdown of marriage
as another
ground of divorce.

The amendment may also provide that the court before granting a decree for divorce
on the ground that the marriage has irretrievably broken down should also examine
whether adequate financial arrangements have been made for the parties and children.

221 Dr. A.R. The Law Commission has given following recommendation for reducing the delay in civil
(Speedy Lakshmanan, and criminal cases:
justice) April 30 2009
Amendment of Section 80 and order V of CPC and also the concerned court’s Rules In
order to shorten delay, it is necessary that the provisions parallel to sec. 80 CPC be
introduced for all kinds of civil suits and cases proposed to be filed by litigant The
Commission is of the view that this will encourage pie-litigation mediation and
settlement of disputes.

The Law Commission has recommended the amendment of sec. 378, 397 and 401 CrPC
for incorporating the following changes:

In complaint cases also, appeal against an order of acquittal passed by a Magistrate

should be made to the Sessions Court instead of High Court, of course, subject to the
grant of special leave by it. Where the District Magistrate or the State does not direct
the Public Prosecutor to prefer appeal against an order of acquittal, the aggrieved
person or the informant should have the right to prefer appeal, though with the leave
of the Appellate Court.

There should only one forum for filing revisions against orders passed by Magistrate,
that is, the Sessions Court, instead of two alternative forums as now provided.

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 163

The legislature should specifically categorize revisable orders, instead leaving the
matter to confusion caused by various interpretations of the expression “interlocutory
orders”.
222 Dr. AR. There is an urgent need for justice dispensation through ADR mechanism. The ADR
(Importance Lakshmanan, movement needs to be carried forward with greater speed.
of ADR in April 30 2009
Adjudication)

226 Dr. AR. If a person has thrown or administered the acid on another person, a presumption
(The inclusion Lakshmanan, should be raised against the person who has thrown or administered the acid that he
of Acid Attacks Report has done so deliberately.
as specific submitted to the
offence in IPC Hon’ble Supreme Distribution and sale of acid should be banned except for commercial and scientific
and law for Court of India purposes.
compensation for its
for victims of consideration in A new section 326A should be added to the Indian penal code 1860 326A (1) Hurt by
crime.) the pending acid attack:- punishment not be less than 10 years but which may extend to life and
proceedings filed with fine which may extend to Rs 10 lakhs.
by one Laxmi in 326A (2) lntentional throwing or administering acid
W.P. (Cri) No
129 of 2006.
A presumption should be incorporated in the Indian Evidence Act.
114B Presumption as to acid attack presumption of intention.
227 In the Hindu Marriage Act 1955 a new section 17A be inserted after section 17 to the
Preventing effect that a married person whose marriage is governed by fins Act cannot many again
bigamy via even after changing religion unless the first marriage is dissolved or declared null and
conversion to void in accordance with law and if such marriage is contracted it will be null and void
Islam-A and shall attract application of secs. 494-495 of the Indian Penal Code 1860.
proposal for
giving Similar changes also be made in Christian Marriage Act 1872, Parsi Marriage Act and
statutory Divorce Act 1936 and Dissolution of Muslim Marriage Act 1939.
effect to
Supreme In the Special Marriage Act 1954 a provision be inserted to the effect that if an existing
Court rulings) marriage, by whatever law it is governed, becomes inter religious due to change of
religion by either party, it will thenceforth be governed by the provision of the Special
Marriage Act including its anti bigamy provisions.
229 (Need for Dr. AR. A Constitution Bench he set up at Delhi to deal with Constitutional and other allied
creation of Lakshmanan, issues.
Constitutional August 5 2009
Courts and Four Cassation Benches be set up in the Northern region/zone at Delhi, the Southern
four Cassation region/zone at Chennai/Hyderabad, the Eastern zone at Kolkata and Western zone at
benches) Mumbai to deal with all appellate work arising out of orders/judgments of the Hon’ble
High Court of the particular region.

With a view to reducing the heavy backlog of cases in the higher courts and meet the
problem of finding suitable persons for appointment of judges in these courts, the
retirement age for the Hon’ble Supreme Court and High Court judges should be raised
to 70 and 65 years respectively.

230 (Reforms Dr. AR The Commission has suggested various reforms in legal system so that the legal system
in the Lakshmanan, of the country will become more speedy and litigant friendly.
Judiciary- August 5 2009
Some The Commission has recommended that the collegiums system of appointment of
suggestions) judges of SC and HC should be replaced with the more balanced, effective and
transparent system.
233 Dr. AR The law Commission has recommended that there shall be provision for restoration of
(Amendment Lakshmanan, complaint in the CRPC also in line with Order ix of CPC. Rules 4 and 9 of Order IX of
of Code of August 22. 2009 CPC provides for restoration by setting aside the dismissal order In CRPC sees 249 and
Criminal 256 provides that an accused could be discharged or acquitted depending upon the
Procedure nature of the case whether the case is warrant or summons. There is no power to
enabling subordinate court to restore the dismissed complaint on sufficient cause shown by the
restoration of party in default for his absence. It can only be restored through 482 CRPC by the
complaints) Hon’ble High Court. Thus, the Commission recommended suitable amendment in the
CRPC for incorporation of provision of restoration of dismissed complaint by the
subordinate court.
Note: 141st Law Commission Report also recommended similar amendment along with a
recommendation to give inherent powers to subordinate court also.

234 (Legal Dr. AR Maximum term of imprisonment in section 304A IPC should be increased to 10 years
reform to Lakshmanan, and also it should be non-bailable.
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combat road August 22.2009

accidents) Sub-section (2) should be added in section 304A namely:
304A (2)-Causing death or injury by rash and negligent driving, punishable with
imprisonment up to 10 years.

Causing death of any person through driving under the influence of drink or drugs
should be punishable with the minimum term of two years.
235 Dr. P.V. Reddy, The Commission has recommended following measures in case of
(Conversion December 27 conversion/reconversion to provide mode of proof:
/reconversion 2010 1) Within a month after the date of conversion, the converted person, if she/he
to another chooses, can send a declaration to the officer in charge of registration of marriage in
religion-mode concerned area.
of proof. 2) The registering official shall exhibit a copy of the declaration on the notice board of
the office till the date of confirmation.
3) The said declaration shall contain the requisite details viz., the particulars of the
convert such as date of birth, permanent address, and the present place of residence,
father’s/husband’s name, the religion to which convert originally belonged and the
religion to which he or she converted, the date and place of conversion and nature of
process gone through for conversion.

4) Within 21 days from the date of sending/filing the declaration, the convened
individual can appear before registering officer, establish his or her identity and confirm
the contents of the declaration.
5) The Registering officer record the factum of declaration and confirmation in a
register maintain for this purpose. If any objections are notified, he may simply record
them i.e the name and particulars of objectors and the nature of objection.
6) Certified copies of declaration confirmation and extracts from the register shall be
furnished to the Party who gave the declaration or the authorized legal representative,
on request.

237 Dr. P.V. Reddy, In sub-section (3) of section 320 CrPC after the “bracketed words and before the words
(Compounding December or where
of Offences) 30, 2011 the accused is liable”, the following words shall be added: “or a criminal conspiracy
to commit such offence”

Section 498 A IPC should be made under section 320 (2) of CrPC so that it may be
compounded with the permission of the court. However, in order to ensure that the
offer of composition is voluntary and free from pressures, it is proposed to introduce
sub-section (2A) in section 320 laying down procedure for dealing with an application
for compounding of an offence under section 498A.

Section 324 IPC should be made compoundable subject to the permission of court.
Accordingly, it shall be brought within the ambit of section 320(2) CrPC.

Section 326 IPC (causing grievous hurt by dangerous weapons) should not be made
compoundable.

The offence of rioting under section 147 IPC should be made compoundable by
including the same in the table appended to section 320(2) CrPC subject to the addition
of proviso: “provided that the accused is not charged with other offence which is not
compoundable.”
The following six offences in IPC may be made compoundable:
1. Section 380 (theft in dwelling house) subject to the proviso that the value of
property is not more than Rs. 50, 000/-
2. Section 384 (extortion)
3. Section 385 (extortion by putting the
person in fear of injury)
4. Section 461 (dishonestly breaking open
receptacle containing property)
5. Section 489 (tampering with property mark with intent to cause injury)
6. Section 507 (criminal intimidation with an anonymous communication) subject to the
rider that compounding shall be confined to criminal intimidation falling with the first
part
Section 506.

238 Dr. P.V. Reddy, in Afcons Infrastructure Vs. Cherian Varkey Construction Co. Ltd [(2010) 8 SCC 241, a
(Amendment December Division Bench of Supreme Court speaking through R.V. Raveendran, J, held that
of section 89 30.2011 Section 89 of the CPC needs amendment as it is wrongly worded. The Hon’ble Apex
CPC and other Court made two changes in section 89 of the Code as follows: “Firstly, it is not
allied necessary for the court, before referring the parties to an ADR process to formulate or

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provisions) reformulate the terms of a possible settlement, It is sufficient if the court merely
describes the nature of dispute (in a sentence or two) and makes the reference.
Secondly, the definitions of ‘judicial settlement’ and ‘mediation’ in Clauses (c) and (d) of
section 89(2) shall have to be interchanged to correct the draftsman’s error. Clauses (c)
and (d) of section 89(2) of the Code will read as under when the two terms are
interchanged:

(c) for ‘mediation”, the court shall refer the same to a suitable institution or person and
such institution or person shall be deemed to be a Lok Adalat and all the provisions of
the Legal Services Authority Act, 1987 (39 of 1987) shall apply as if the dispute were
referred to a Lok Adalat under the provisions of that Act;

d) for “judicial settlement”, the court shall effect a compromise between the parties and
shall follow such procedure as may be prescribed.

The Hon’ble Supreme Court made it clear that- “above changes made by
interpretative process shall remain in force till the legislature corrects the
mistakes, so that section 89 is not rendered meaningless and infructuons.”

In Its 238 Report the Law Commission has supported the

view of Supreme Court in Afcons case and recommended following amendments in
Section 89 CPC and other allied provisions:

1)The following shall be substituted in the place of existing section 89 of the Code of
Civil Procedure, 1908:
Section 89: Settlement of disputes outside the court
1) Where it appears to the court, having regard to the nature of the dispute involved In
the suit or other proceeding that she dispute is fit to be settled by one of the non
adjudicatory processes namely, conciliation, judicial settlement through Lok Adalat or
mediation, the court shall, preferably before framing the issues record its opinion and
direct the parties to attempt the resolution dispute through one of the said processea4
which the parties prefer or the court determines.

2) Where the parties prefer conciliation they shall furnish the court the name or names
of the conciliators and on obtaining his or their consent, the court may specify a time
limit for the completion of conciliation. Thereupon, the provisions of sections 65-81 of
the Arbitration and Conciliation Act, 1996, as far as may be, shall apply and to this
effect, the court shall inform the parties. A copy of the settlement agreement reached
between the parties shall be sent to the court concerned. In the absence of a
settlement, the conciliator shall send a brief report on the process of conciliation and
the outcome thereof.

3) Where the dispute has been referred:-

a) For judicial- settlement, the judicial officer shall endeavour to effect a compromise
between the parties and shall follow such procedure as may be
prescribed:
b) To Lok Adalat, the provisions of subsections (3) to (7) of section 20, sections 21 and
22 of the Legal Services Authorities Act, 1987 shall apply in respect of the dispute so
referred and the Lok Adalat shall send a copy of the award to the court and in case no
award is passed, send a brief report on the proceedings held and the outcome
thereof;
c) For mediation, the court shall refer the same to a suitable institution or person or
persons with appropriate directions such as time limit for completion of mediation and
reporting to the court.

4) On receipt of copy of the settlement agreement or the award of the Lok Adalat, the
court, if it finds any inadvertent mistakes or obvious errors, it shall draw the attention
of the conciliator or the Lok Adalat who shall take necessary steps to rectify the
agreement or award suitably with the consent of parties.

5) Without prejudice to section 8 and other allied provisions of the arbitration and
Conciliation Act 1996 the court may refer the parties to arbitration both party enter into
an admiration agreement of file applications seeking reference to arbitration during the
pendency of a suit or other civil proceeding and in such an event the arbitration shall be
governed, as far as may be, by the provision of the Arbitration and Conciliation Act
1996. The suit or other proceeding shall be deemed to have been disposed of
accordingly.

II) The existing Rule 1-B of Order X of the Code of Civil Procedure should be deleted. In
the place of existing Rules I-A and I-C, the following rules shall be substituted:

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“I-A: Direction of the court to opt for any one mode of alternative dispute
resolution-At the stage of framing issues or the first hearing of the suit, the court
shall direct the parties to opt either mode of settlement outside the court as specified in
sub-section (I) of section 89 and for this purpose may require the parties to be
personally present and in case of non attendance without substantial cause, follow the
procedure for compelling the attendance of witness. The court shall fix the date of
appearance before such forum or authority or persons as may be opted by the parties
or chosen by the court.”

“I-B: Appearance before the court consequent upon the failure of efforts of
conciliation- Where a suit is referred under Rule i-A and presiding officer of the
conciliation forum or authority or the person to whom matter has been referred is
satisfied that it would not be proper in the interest of justice to proceed with the mailer
further, in view of the stand taken by respective parties, it shall refer the case back to
the court who shall direct the parties to appear before it on the date fixed and proceed
with the suit.”

III) In the place of existing section 16 of the Court Fees Act 1870, the following shall be
substituted:

“Where the court refers to parties to the suit or other proceedings to any one of the
mode of settlement of dispute referred to in section 89of the Code of Civil Procedure
and as a result thereof a compromise or settlement has been arrived at between the
parties, the court-fees paid in such a case shall be refunded.”

Few More Reports

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 167

Significant Judgements Of Supreme Court Of India In 2016

(Taken from Net by Surender Deswal, Advocate - 9416131300)

1. Youth Bar Association Of India Vs. Union Upload FIRs in police’s website.
Of India (The Supreme Court directed that copies of FIRs unless the offenses sensitive in nature
like sexual of offenses, offenses pertaining to insurgency, terrorism and of that category,
offense under pocso Act and such other offenses, should be uploaded on Police’s
website if there is no such website on the official website of State Government within
the 24 hours of Registration of first information Report so that he accused any person
connected with the same can download the FIR and file the appropriate application
before report as per the law for the redressal of the grievance. The bench clarified that
in case there is connectivity problem due to geographical location there is some other
unavoidable difficulty the time can be extended upto 48 hours. The said 48 hours can be
extended maximum upto 72 hours and it is only relatable to connectivity problems due
to geographical location

2. Subramanyam Swami Vs. Union Of India Criminal defamation law not unconstitutional
The Supreme Court upheld the constitutional validity of Section 4992502 (Chapter 21) of
india penal code related to the criminal defamation. The bench comprising of Justice
Deepak Mishra and P.C. Pant held that right to life on the Article 21 include Right to
Reputation. The bench has dismissed the petition filed by the Subramanyam Swami,
Rahul Gandhi, and Arvind Kejriwal challenging the law related to the criminal
defamation in India.

3. Muthuramalingam Vs. State Multiple life sentences will run concurrently, remission of one will not affect
the other.
The Constitution bench of India held that while multiple sentences of imprisonment for
life can be avoided for multiple murders or other offenses punishable with imprisonment
for life, The life sentences so awarded cannot be directed to run consecutively. The
bench further clarified that such sentences would, however, be super imposed or each
other so that any remission or commutation granted by the competent authority in one
does not if so IPSO Facto result in remission of sentence awarded to the prisoner for the
other. The bench also corrected the wrong interpretation given to Section 31 (2) of the
Court of Civil procedure by holding that cap of 14 years rule on Aggregate punishment is
not applicable to session Court.

4. Jindal Stainless Ltd. Vs State Of Haryana Entry tax on goods Constitutional

Nine judges constitutional bench upheld the constitutional validity of Entry Tax imposed
by States on goods coming in from other states. The bench also directed the three
judge Bench to decide whether the State’s Entry Tax Law on the basis of Guidelines
issued by this Bench.

5. Anita Kushwaha Vs. Pushpa Sudan SC can transfer cases from Jammu & Kashmir Courts to Courts outside it and
vice versa
The Constitution Bench of the supreme court held that Supreme Court can, by invoking
Article 32, 136 and 142 of the Constitution is empowered to transfer a case from a Court
of outside the State or vice versa. The five Judges Bench comprising Chief Justice of
India Dr. T.S. Thakur, Justices Fakkir Mohamed Ibrahim Kalifulla, A.K.Sikri, S.A. Bobde,
and R. Banumathi further made an important observation that Access to Justice is
guaranteed to citizens by Article 14 and Article 21 of the Constitution of India

6. Hiral P Harsora And Ors Vs. Kusum DV Act: Relief possible against minors, women
Narottamdas Harsora Supreme Court struck down the words adult male “before the word “person”in Section
2(q) of Domestic Violence Act holding that these words discriminate between persons
similiary situated, and is contrary to the object sought to be achieved by Domestic
Violence Act

7. Narendra Vs. K. Meena Forcing husband to get separated from his parents, amounts to ‘cruelty’
The Supreme Court of India held that persistent effort of the ‘Wife to constrain her
husband to be separated from the family constitutes an act of’ Cruelty ‘to grant divorce

8. Voluntary Health Association Vs. State Of Directions to curb female feoticde

Punjab Supreme Court issued Additional Direction to Curb female foeticide by effected
implementation of the pre-conception and Pre-natal Diagnostic Techniques (Prohibition
of Sex Selection) Act, 1994

9. (Vijay Kumar Mishra & Anr Vs. High Person in Govt/Judicial Service need not to resign to participate in District
Court Of Judicature At Patna To And Ors Judge selection process
The apex Court held that the Article 233(2) of the Constitution of the India only prohibits
the appointment of a person as District Judge, who is already in the service of the Union
of the State, but not the selection of such a person. The Court set aside the Patna High
Court judgement which had required the aspirant to resign his membership of the
subordinate judicial service if he aspires to become a District Judge.

10. S. Kazi Vs. Muslim Education Society All tribunals are not necessary parties to the proceedings where legality of its
orders challenged
The Supreme held that all Tribunals are not necessary parties in a Special Civil
Applications under Articles 226 and 227 of the Constitution, when they are not required
to defend its order when they are challenged before the High Court.

11. Kerala Public Service Commission Vs. Public Service Commission shall provide information about answer sheets and
State Information Commission marks under RTI
The Supreme Court observed that the request of the information seeker about the
information of his answer sheets and details of the interview marks can be and should
be provided to him by Public Service Commission under right to information Act. It is
also observed that since there is a fiduciary relationship between the PSC and the
Examiners, any information about the examiners, is not liable to be disclosed

12. Cardamom Marketing Corporation & Anr. Social secrity to the legal profession becomes an essential part of legal
Vs. State Of Kerala & Ors system
The Supreme Court observed that providing social security to the legal profession
becomes an essential part of any legal system which has to be effective, efficient and
robust to enable it to provide necessary service to the consumers of justice. The Court
upheld levy of additional Court fee in respect of each appeal or revision before the
tribunals and appellate authorities by or under special or local law, at the rate of 0.5%
of the amount involved in the dispute in cases, where it is capable of valuation, and at
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 168

the rate of 50 in other

13. Swaraj Abhiyan Vs. Uol Landmark guidelines for Disaster/Drought Management
A two judge bench of Supreme Court of India issued landmark guidelines for disaster /
drought management. The writ petition was filed by Swaraj Abhiyan in the backdrop of
a declaration of drought in some districts or parts thereof in nine States that in Uttar
Pradesh, Madhya Pradesh, Karnataka, Andhra Pradesh, Telengana, Maharashtra,
Odisha, Jharkhand and Chhattisgarh.

14. Jeeja Ghosh Vs. Uoi People with disabilities also have the right to live with dignity
Supreme Court asked the SpiceJet Ltd to pay Rupees Ten Lakhs to Jeeja Ghosh, an
ancient activist involved in disability rights, for forcibly de-boarding her by the flight
crew, because of her disability. Apex Court bench comprising of Justice A.K. Sikri and
R.K. Agrawal also issued the guidelines with regard to ’carriage’ by person with
disabilities and/or persons with reduced mobility and observed that People with
disabilities also have the Right to Live with dignity

15. State Of Tamil Nadu Vs. K. Balu No liquor shops near National Highway
Supreme Court ordered closure of all liquor shops along National and state highways
stressing on the need to improve road safety and curb menace of drunken driving. A
bench headed by Chief Justice T S Thakur also ruled that there should not be any liquor
shops within 500 metres of such highways and they should also be not visible from such
roads
16. Mahipal Singh Rana Vs. State Of Uttar Urgent need to review regulatory mechanism for the legal profession.
Pradesh The Supreme Court observed that there is an urgent need to review the provisions of
the Advocates Act dealing with regulatory mechanism for the legal profession. Three
Judge Bench comprising of Justices Anil R. Dave, Kurian Joseph and Adarsh Kumar Goel
requested the Law commission and Government of India to take appropriate steps in
this regard

17. State Bank Of India Vs. Santosh Gupta Jammu & Kashmir has no Vestige Of Sovereignty outside The Constitution Of
And Anr Etc India
The Supreme Court set aside the Jammu & Kashmir high Court’s judgement which had
held that various key provisions of the securitisation and Reconstruction of Financial
Assets and Enforcement of Security Interest Act, 2002 were outside the legislative
competence of Parliament as they collided with Section 140 of the Transfer of Property
Act of Jammu & Kashmir, 1920. The bench also rejected the J&K High Court’s view that
the J&K Constitution was equal to the Constitution of India

18. Union Of India Vs. Rajasthan High Court High Court Judges not exempt from Airport frisking
And Ors The Supreme Court set aside a Rajasthan High Court order which had directed the
Union Government to exempt judges of high court from pre-embarkation security
checks. Observing that the order of high court transgressed the ‘wise and self-imposed”
restraints on the power of judicial review the court said the view of the Union
government to exempt certain dignitaries from security checks is based on a considered
assessment of security perceptions and does not depend only on the warrant of
procedure

19. Govindaswamy Vs. State Of Kerala Soumya case: Govindaswami acquitted of murder charges; life term awarded
for rape
The Supreme Court acquitted Govindachami alias Govindaswamy, the accused in
Soumya Rape and Murder Case, of Murder charges while upholding the conviction and
sentence under Section 376 IPC for Rape and other offences

20. State Of Punjab Vs. Brijeshwar Singh SC issues guidelines on appointment of Govt. Lawyers
Chahal Two Judge Bench of the Supreme Court issued Guidelines relating to the Appointment of
Government Law Officers. The Bench comprising of Chief Justice T.S. Thakur and Justice
Kurian Joseph was primarily examining the question ‘Whether appointment of law
officers by the State Government can be questioned or the process by which such
appointments are made, can be assailed on the ground that the same are arbitrary,
hence, violative of the provisions of Article 14 of the Constitution of India? Answering
the question is the affirmative the Court has issued following Guidelines

21. Justice Markandey Katju Vs. Lok Sabha Resolution against Justice Katju can’t be quashed
SC refused to quash the March 2015 resolution by both houses of parliament against
him for describing Gandhi as a British agent and Netaji as a Japanese agent in a blog

22. Union Of India Vs. Harish Rawat SC orders floor test in Uttarakhand.
The Supreme Court today ordered a floor test monitored by it in Uttarakhand assembly
to end the constitutional impasse

23. State Of Karnataka Vs. State Of Tamil Cauvery dispute and SC.
Nadu SC ordered Karnataka to release 15000 cusecs. SC also held that t had the jurisdiction to
hear appeals filed by the Karnataka, Tamil Nadu and Kerela against the 2007 award of
the Cauvery Water Dispute Tribunal (CWDT)

24. Sankalp Charitable Trust Vs. Uoi Sc orders on NEET

Supreme Court ordered to conduct the National Eligibility Cum Entrance Test (NEET) in
terms of Regulation of Medical Council of India (MCI) for academic year 2016-17 for
admission to MBBS, BDS and like Courses of medical colleges throughout the country.

25. Common Cause Vs. Union Of India Seditions : Directions to Authorities

Supreme Court of India issued a direction to all the concerned authorities to follow the
Constitutional bench judgement in Kedar Nath Vs. State of Bihar (1962) with limited the
scope of Sedition Law Section (124A) in India. The Supreme Court has said that all
authorities would be bound by Kedar Nath judgement when dealing with case of
sedition Supreme Court made the observation in petition filed by NGO ‘Common Cause ‘
and Dr.S.P.Uday Kumar

26. Shyam Narayan Chouski Vs. Union Of National Anthem must in theatres
India The Supreme Court made it mandatory for all cinema theatre to play the national
anthem before a movie begins during which the national flag is to be shown on the
screen. A bench of justice Dipak Misra and Justice Amitava Roy also said that everyone
present in cinema half should rise up and pay respect to the anthem when it is played

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