Pleading and Proof:
Plea of being tenant raised for the first time in second appeal:
First, the respondent (defendant) had not raised such plea in his written statement. In other words, the respondent did not set up such defense in the written statement.
Second, the Trial Court, therefore, had no occasion to frame any issue on such plea for want of any factual foundation in the written statement.
Third, the Trial Court and First Appellate Court, in these circumstances, had no occasion to record any finding on this plea either way.
Fourth, in the light of these three reasonings, the High Court ought to have seen that such plea really did not arise for consideration because in order that any question is involved in the case, the party concerned should lay its factual foundation in the pleading and invite finding on such plea. Continue reading “Contradictory defence of tenancy and adverse possession in a suit for possession”
Power to summon material witness, or examine person present.
Section 311 of Criminal Procedure Code provides as under:
Any Court may, at any stage of any inquiry, trial or other proceeding under this Code, summon any person as a witness, or examine any person in attendance, though not summoned as a witness, or. recall and re- examine any person already examined; and the Court shall summon and examine or recall and re- examine any such person if his evidence appears to it to be essential to the just decision of the case.
Continue reading “Summon of witnesses in Criminal Trial: Powers of Court”
Professional Ethics in Legal Profession in India
This book on Professional Ethics in Legal Profession in India can also be called as Model Code of Conduct for lawyers. It is an attempt too reconcile the various precedents and various sources including personal views and rules framed by various bodies. Continue reading “An ebook on professional ethics for Lawyers”
Considerations for sentence:
Conviction under Prevention of Corruption Act:
On thorough examination of the entire evidence on record and after considering the submissions made by the prosecution and the defence, the trial court convicted the Appellant and the other two accused under Sections 420, 465, 467, 468 and 471 of the IPC and Sections 13 (1)(c) and (d) of the PC Act. The Appellant was sentenced to undergo three years rigorous imprisonment for the offences punishable under the IPC and two years imprisonment for the offences punishable under the PC Act to run concurrently by taking note of the fact that the Appellant had already retired from service. The trial court further took notice of the age of the Petitioner and his ill-health while imposing the sentence. The Appellant along with the other two accused filed an Appeal in the High Court. The High Court scrutinised the entire evidence on record. After examining the submissions made by the counsel of both sides, the High Court found no fault with the judgment of the trial court and affirmed the same.
We have examined the judgments of the courts below and we are of the opinion that there is no error committed in holding the Appellant guilty of the offences alleged. Both the courts below have thoroughly examined the oral as well as documentary evidence on record and dealt with the submissions made on behalf of the defence in a detailed manner. It is settled law that this Court need not re-appreciate evidence while affirming the judgments of the courts below in criminal cases.
Continue reading “Reduced sentence due to ill health and advance age”
What constituted Mistrial of suit?
In our considered opinion, the need to remand the aforementioned two LGCs to the Special Court is considered necessary due to the following reasons:
Non-consolidation of identical suits:
First, we find that the trial of the two cases before the Special Court was not satisfactory inasmuch as when admittedly two LGCs (41/1994 and 50/2004) arising between the same parties and in relation to the same piece of suit land were filed for grant of identical reliefs under the Act then, in our view, both the cases should have been clubbed together for their disposal on merits in accordance with law to avoid any conflicting decision in both the cases.
It was more so when both the cases were capable of being clubbed together because both were pending though filed one after the other, neither the parties nor the Courts below took note of this with the result, the same resulted in passing two conflicting orders – one was decreed and the other suffered dismissal. This recourse adopted by the Court below caused prejudice to the parties and, especially, to the party who lost the case. Continue reading “Remand of suit for retrial due to mistrial”
Refund of education cess where service tax or excise duty is nil:
Circular is dated April 08, 2011 issued by the Central Board of Excise and Customs, New Delhi on the subject “education cess and secondary and higher education cess-reg. is as under:
“Education Cess and Secondary and Higher Education Cess also exempted when notifications exempt whole of Service tax Circular No. 134/3/2011-S.T., dated 8-4-2011 F.No. 354/42/2011-Tru Government of India Ministry of Finance (Department of Revenue) Central Board of Excise & Customs, New Delhi Subject : Education Cess and Secondary and Higher Education Cess – Reg.
Representations have been received from the field formations, seeking clarification regarding the applicability of service tax exemption to Education Cess (refers to both Education Cess leviable under Finance (No.2) Act, 2004 and Secondary and Higher Education Cess leviable under Finance Act, 2007), under notifications where ‘whole of service tax’ stands.exempted. Apparently the doubt arises in the context of Tribunal’s Order in the matter of MIs.
Continue reading “Levy of Education cess where Excise Duty is exempt.”
Effect of non-supply of Enquiry Report to dismissed employee:
Test of prejudice:
When the employee is dismissed or removed from service and the inquiry is set aside because the report is not furnished to him, in some cases the non-furnishing of the report may have prejudiced him gravely while in other cases it may have made no difference to the ultimate punishment awarded to him. Hence to direct reinstatement of the employee with back-wages in all cases is to reduce the rules of justice to a mechanical ritual.
Continue reading “Non supply of Enquiry Report does not vitiate order of dismissal”
Demolition of unauthorised construction
The High Court has directed dismantling of the whole project and for restoration of the park to its original condition. This Court in numerous decisions has held that no consideration should be shown to the builder or any other person where construction is unauthorised. This dicta is now almost bordering the rule of law. Stress was laid by the appellant and the prospective allottees of the shops to exercise judicial discretion in moulding the relief. Such discretion cannot be exercised which encourages illegality or perpetuates an illegality. Unauthorised construction, if it is illegal and cannot be compounded, has to be demolished. There is no way out. Judicial discretion cannot be guided by expediency. Courts are not free from statutory fetters. Justice is to be rendered in accordance with law. Judges are not entitled to exercise discretion wearing the robes of judicial discretion and pass orders based solely on their personal predilections and peculiar dispositions. Judicial discretion the wherever it is required to be exercised has to be in accordance with law and set legal principles.
Continue reading “Unauthorised Construction and Rule of Law”
Benefit of reasonable doubt
In a criminal trial suspicion however grave cannot take the place of proof and the prosecution to succeed has to prove its case and establish the charge by adducing convincing evidence to ward off any reasonable doubt about the complicity of the accused. For this, the prosecution case has to be in the category of “must be true” and not “may be true”.
A criminal trial is not like a fairy tale wherein one in free to give flight to one’s imagination and phantasm.
Continue reading “Suspicion cannot replace proof in a criminal trial”
Conditions for bail under PMLA
Section 45 of PMLA is as under:
45. Offences to be cognizable and nonbailable.—(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), no person accused of an offence punishable for a term of imprisonment of more than three years under Part A of the Schedule shall be released on bail or on his own bond unless
(i) the Public Prosecutor has been given an opportunity to oppose the application for such release; and
(ii) where the Public Prosecutor opposes the application, the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail:
Provided that a person who is under the age of sixteen years or is a woman or is sick or infirm, may be released on bail, if the Special Court so directs:
Provided further that the Special Court shall not take cognizance of any offence punishable under section 4 except upon a complaint in writing made by—
(i) the Director; or
(ii) any officer of the Central Government or a State Government authorised in writing in this behalf by the Central Government by a general or a special order made in this behalf by that Government.
(1A) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), or any other provision of this Act, no police officer shall investigate into an offence under this Act unless specifically authorised, by the Central Government by a general or special order, and, subject to such conditions as may be prescribed.
(2) The limitation on granting of bail specified in subsection (1) is in addition to the limitations under the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in force on granting of bail.”
Provision if binding on High Court
Continue reading “Bail under Prevention of Money Laundering Act”