Distinction between Murder and Homicide not amounting to murder:
It is important to have a look at the evidence of PW 5-Dr. Arvind Kanwar who has conducted Post mortem and according to him there was an incised wound on the right parietal region of size 4” and 10” above right ear and another incised wound of 1” in size on the right index finger. He has deposed that “the brain was found congested, yet no fracture was seen on the scalp”. Though in the cross examination he has stated at one place that the injury No 2 on the scalp might be ‘grievous’ that caused brain hemorrhage. This particular fact is not noted in the postmortem report. Regarding the cause of such injury, PW5 stated that it can be caused by striking with sharp edged object and the depth of the scalp injury depends upon the force and speed. He maintains the stand that it was a ‘scalp injury’ and not ‘skull injury’. Moreover, he did not measure the depth of the head injury which was necessary for classification of injury. Continue reading “Death due to brain hemorrhage”
Framing of question of law:
High Court framed 6 questions of law at the time of admission of appeal but delivered no judgement on those questions. However it framed two other questions in the judgement and decided the appeal. Procedure if legal?
First, though it rightly framed six substantial questions of law at the time of admission of the appeal on 30.11.2002 as arising in the case but erred in not answering these questions.
The High Court had the jurisdiction to decide the second appeal only on the six substantial questions of law framed at the time of admitting the appeal. In other words, the jurisdiction of the High Court to decide the second appeal was confined only to six questions framed and not beyond it. Continue reading “Procedure for disposal of Second Appeal by High Court.”
Effect of Re-grant of Land.
Whatever so-called rights, title and interest which the original holders derived from the orders of re-grant in 1973 in the suit property in their favour, the same stood extinguished by efflux of time.
The reason was that in order to keep such new rights intact and enforceable, the original holders (three PATIL) were under a legal obligation to have filed a suit for claiming a declaration and possession of the suit land and this ought to have been done by them within 12 years from the date of re-grant, i.e., 1973.
They, however, failed to do so within 12 years and when they actually tried to exercise their rights by filing the suit in 2004 (after 31 years from 1973), by then it was too late to exercise such rights in law. By that time, their rights in the suit land stood extinguished. Continue reading “Extinguishment of right, title and interest in property”
Applicability of Arbitration Act, 1996.
What is material for the purposes of the applicability of 1996 Act is the agreement between the parties to refer the disputes to arbitration. If there be such an arbitration agreement which satisfies the requirements of Section 7 of 1996 Act, and if no arbitral proceeding had commenced before 1996 Act came into force, the matter would be completely governed by the provisions of 1996 Act. Any reference to 1940 Act in the arbitration agreement would be of no consequence and the matter would be referred to arbitration only in terms of 1996 Act consistent with the basic intent of the parties as discernible from the arbitration agreement to refer the disputes to arbitration. Continue reading “Arbitration Clause referring to 1940 Act”
Scheme of Section 195 read with sec. 340 of Cr. P.C.
The prosecution for perjury should be sanctioned by courts only in those cases where the perjury appears to be deliberate and conscious and the conviction is reasonably probable or likely.
No doubt giving of false evidence and filing false affidavits is an evil which must be effectively curbed with a strong hand but to start prosecution for perjury too readily and too frequently without due care and caution and on inconclusive and doubtful material defeats its very purpose. Prosecution should be ordered when it is considered expedient in the interests of justice to punish the delinquent and not merely because there is some inaccuracy in the statement which may be innocent or immaterial. There must be prima facie case of deliberate falsehood on a matter of substance and the court should be satisfied that there is reasonable foundation for the charge.
In view of the language used in Section 340 CrPC the court is not bound to make a complaint regarding commission of an offence referred to in Section 195(1)(b), as the section is conditioned by the words “court is of opinion that it is expedient in the interests of justice”.
Continue reading “Prosecution for perjury”
How to value human life?
Human life is most precious. It is extremely difficult to decide on the quantum of compensation in medical negligence case as the same is highly subjective in nature.
In case of Sarla Verma (2009) 6 SCC 121, Supreme Court discussed “just compensation.
In Kunal Saha case (2014) 1 SCC 384, Supreme Court rejected the multiplier method and held that a “no-fault” motor vehicle accident should not be compared with the case of death from medical negligence under any condition. It was held that there were problems in using a “strait-jacket formula” for determining the quantum of compensation. The multiplier method used in motor accident cases thus is not conclusive for just, fair and adequate compensation. I
n Halsbury Laws of England 4thEdition page 446, it has been stated with regard to non-pecuniary loss that pattern of compensation awarded is for pain and suffering and loss of amenity constitutes a conventional sum which is taken to be a sum which society deems fair, fairness being interpreted in the light of previous decisions”.
In Nizam’s case (2009) 6 SCC 1 the Supreme Court did not apply the multiplier method and awarded compensation based on the nature of injury, expenditure incurred and expenditure likely in future. Thus there is no restriction upon courts while awarding compensation it has to be confined to what is demanded by the complainant.
In V. Krishna Kumar (2015) 9 SCC 388, Supreme Court while relying on the principle of “restitutio in integrum” as recognized in Malay Kumar Ganguly case (2009) 9 SCC 221 and Kunal Saha (2014) 1 SCC 384 has further weighed the “apportioning of inflation” based on the RBI data of average inflationary rate between 1990-1991 and 2014-2015 and formulated standard future value; (FV) formula as below:
FV = PV (Present Value) x (1+r)n ( r= rate of return; n = time period)
Recently, the Constitution Bench of Supreme Court in the case of National Insurance Co Ltd (2017) Scale 12 determined just compensation in fatal accident cases has inter alia concluded that while determining the income, an addition of 50% of actual salary to the income of the deceased towards future prospective, where the deceased had a permanent job and was below the age of 40 years, should be made. The addition should be 30%, if the age was between 40-50 years. In case the deceased is was between the age of 50-60 years the addition should be 15%. Actual salary should be read as actual salary less tax. In case the deceased was self employed of on a fixed salary, an addition of 40% of the established income when the deceased was less than 40 years of age, 25% when the deceased was 40 to 50 years and 10% for the age group between 50-60 years. The established income means the income minus the tax component.
Cancellation of sale due to non utilization:
In the first instance, it needs to be emphasised that there is no such condition of completion of construction within a period of two years in the sale deed. Such a condition was only in the allotment letter. However, after the said allotment, the appellant- Corporation not only received entire consideration but executed the sale deeds as well. In the sale deeds no such condition was stipulated. Therefore, the High Court is right in holding that after the sale of the property by the appellant-Corporation to the respondents, whereby the respondents acquired absolute marketable title to the property, the appellant-Corporation had no right to insist on the conditions mentioned in the allotment letter, which cease to have any effect after the execution of the sale deed.
Rights and duties of buyers and sellers:
Section 55 of the Transfer of Property Act deals with rights and liabilities of buyer and seller. As per this provision, when the buyer discharges obligations and seller passes/conveys the ownership of the property, the contract is concluded. Thereafter, the liabilities, obligations and rights, if any, between the buyer and seller would be governed by other provisions of the Contract Act and the Specific Relief Act, on the execution of the sale deed. The seller cannot unilaterally cancel the conveyance or sale. Continue reading “Demand of additional consideration after execution of Sale Deed”
Effect of stay of trial:
It is well accepted that delay in a criminal trial, particularly in the PC Act cases, has deleterious effect on the administration of justice in which the society has a vital interest. Delay in trials affects the faith in Rule of Law and efficacy of the legal system. It affects social welfare and development. Even in civil or tax cases it has been laid down that power to grant stay has to be exercised with restraint. Mere prima facie case is not enough. Party seeking stay must be put to terms and stay should not be incentive to delay. The order granting stay must show application of mind. The power to grant stay is coupled with accountability.
Stay of trial in Corruption case:
Continue reading “Conditions for stay of trial in Civil and Criminal matters”
Enforcement of Building and Other Construction Workers (Regulation of Employment and Conditions of Service) Act, 1996 (the BOCW Act) and the Building and Other Construction Workers‘ Welfare Cess Act, 1996 (the Cess Act)
Under the Cess Act, more than Rs. 37,400 crores have been collected for the benefit of construction workers, but only about Rs. 9500 crores have been utilized ostensibly for their benefit. What is being done with the remaining about Rs. 28,000 crores? Why is it that construction workers across the country are being denied the benefit of this enormous amount?
Duty to implement laws:
The sanctity of laws enacted by Parliament must be acknowledged – laws are enacted for being adhered to and not for being flouted. The rule of law must be respected and along with it the human rights and dignity of building and construction workers must also be respected and acknowledged, to avoid a complete breakdown of the BOCW Act compounded by serious violations of Part III of the Constitution guaranteeing fundamental rights. Continue reading “Right of construction workers to live with dignity.”
Sale with symbolic possession:
In this case, the creditor did not have actual possession of the secured asset but only a constructive or symbolic possession. The transfer of the secured asset by the creditor therefore cannot be construed to be a complete transfer as contemplated by Section 8 of the Transfer of Property Act. The creditor nevertheless had a right to take actual possession of the secured assets and must therefore be held to be a secured creditor even after the limited transfer to the auction purchaser under the agreement
Thus, the entire interest in the property not having been passed on to the creditor in the first place, the creditor in turn could not pass on the entire interest to the auction purchaser and thus remained a secured creditor in the Act.
Fraud and collusion with SARFAESI purchaser:
Continue reading “Sale under Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002”