Sanction for prosecution of Govt Servant in India

Sanction NOT required to Prosecute Police / Govt. or Public Servants for Criminal Offences:

(See Code of Criminal Procedure, 1973; Section 197)

The principles for granting sanction for prosecution of Government Servants are summarized hereunder :

I. Protection of sanction is an assurance to an honest and sincere officer to perform his duty honestly and to the best of his ability to further public duty. However, authority cannot be camouflaged to commit crime.

II. Once act or omission has been found to have been committed by public servant in discharging his duty it must be given liberal and wide construction so far its official nature is concerned. Public servant is not entitled to indulge in criminal activities. To that extent Section 197 CrPC has to be construed narrowly and in a restricted manner.

III. Even in facts of a case when public servant has exceeded in his duty, if there is reasonable connection it will not deprive him of protection under section 197 Cr.P.C. There cannot be a universal rule to determine whether there is reasonable nexus between the act done and official duty nor it is possible to lay down such rule.

IV. In case the assault made is intrinsically connected with or related to performance of official duties sanction would be necessary under Section 197 CrPC, but such relation to duty should not be pretended or fanciful claim. The offence must be directly and reasonably connected with official duty to require sanction. It is no part of official duty to commit offence. In case offence was incomplete without proving, the official act, ordinarily the provisions of Section 197 CrPC would apply.

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Pleading by an agent

Without pleadings, a party can not claim to be a mere agent of somebody.

Civil Procedure Code, 1908, Order 8 Rule 2.

Appellant cannot be permitted to say that though all the rights vested in it but it merely remained the agent of the Central Government. Acceptance of such a submission would require interpreting the expression `vesting’ as holding on behalf of some other person. Such a meaning cannot be given to the expression `vesting’.

It is a settled legal proposition that an agent cannot be sued where the principal is known. In the instant case, the appellant has not taken plea before either of the courts below. In view of the provisions of Order VIII Rule 2 CPC, the appellant was under an obligation to take a specific plea to show that the suit was not maintainable which it failed to do so. The vague plea to the extent that the suit was bad for non-joinder and, thus, was not maintainable, did not meet the requirement of law. The appellant ought to have taken a plea in the written statement that it was merely an `agent’ of the Central Government, thus the suit against it was not maintainable. More so, whether A is an agent of B is a question of fact and has to be properly pleaded and proved by adducing evidence.

[Source: National Textile Corp.Ltd vs Nareshkumar Badrikumar Jagad, decided by Sup Ct. on 5 September, 2011]

Doctrine of lis pendens in India

Definition of lis pendens:

Lis pendens literally means a pending suit, and the doctrine of lis pendens has been defined as the jurisdiction, power, or control which a court acquires over property involved in a suit pending the continuance of the action, and until final judgment therein”. It was observed there “Expositions of the doctrine indicate that the need for it arises from the very nature of the jurisdiction of Courts and their control over the subject-matter of litigation so that par- ties litigating before it may not remove any part of the subject matter outside the power of the Court to deal with it and thus make the proceedings infructuous.

Doctrine of lis pendens is statutorily incorporated in Section 52 of Transfer of Property Act, 1882 of India, which is as under: Continue reading

Medical examination of rape victim

DNA Test in Rape cases

Police directed to invariably resort to DNA test which is most important investigative tool to prove the offence or innocence

It has been seen that in number of cases relating to rape, the most powerful investigative tool which is available to the police is the DNA test which is seldom being resorted to.

The DNA report can either confirm or exclude the involvement of the accused. The police is directed that in every case under Section 376 of I.P.C.:-

(a) under which the doctor preparing the MLC of the prosecutrix prepares vaginal slides and clothing of the prosecutrix, which upon test by the FSL confirms the presence of human sperm then such slides must then be sent for DNA verification with the blood sample of the suspect.
(b) where the prosecutrix is rendered pregnant on account of the rape and if birth takes place, then a DNA verification be sought to ascertain paternity of the child which will again either confirm or exclude the suspect. If the foetus is aborted, then the tissue sample of the foetus be tested along with the sample of the suspect to see if they match, and
(c) in the event of the death of the prosecutrix during pregnancy, then also procedure enunciated in (b) to be followed.

[Source: Raja Burman @ Rahu vs The State Of Madhya Pradesh, MP High Court on 4 May, 2016]

Obligation of lessee to hand over possession

Duty of lessee to hand over possession:

Transfer of Property Act, 1882; Section 108(q):

“on the determination of the lease, the lessee is bound to put the lessor into possession of the property”

Law in general prescribes and insists upon a specified conduct in human relationship or even otherwise. Within the limits of the law, courts strive to take note of the moral fabric of the law. In the instant case, under the terms of the lease, the property had to be handed over to the lessor. Besides under Section 108(q) of the Transfer of Property Act, on the determination of the lease, the lessee is bound to put the lessor into possession of the property. Since the landlord has not assented to the lessee’s continuance in possession of the property, the lessee will be liable to mesne profits which can again be recovered only in term of his wrongful possession. Continue reading

Women criminals not entitled to special mercy.

Women if exempt from imprisonment?

Facts:

The prosecution succeeded in proving, beyond reasonable doubt, that respondent in furtherance of common intention with her co-accused had administered stupefying intoxicating substance to the complainant with intent to commission of offence, that is, theft of currency notes of the complainant and in the process attempted to kill the complainant as well. Continue reading

Legislative intent is presumed to be reasonable.

Principles of Interpretation

Presumption is that legislature acts by reason and justice.

It is proper to assume that the lawmakers who are the representatives of the people enact laws which the society considers as honest, fair and equitable. The object of every legislation is to advance public welfare. In other words as observed by Crawford in his book on Statutory Constructions the entire legislative process is influenced by considerations of justice and reason. Justice and reason constitute the great general legislative intent in every piece of legislation. Consequently where the suggested construction operates harshly, ridiculously or in any other manner contrary to prevailing conceptions of justice and reason, in most instances, it would seem that the apparent or suggested meaning of the statute, was not the one intended by the law-makers. In the absence of some other indication that the harsh or ridiculous effect was actually intended by the legislature, there is little reason to believe that it represents the legislative intent.

“We are unable to persuade ourselves to believe that the legislature intended to ignore the rights of persons having legal title to possession and wanted to make a gift of any building to a trespasser howsoever recent the trespass might have been if only he happened to be in physical possession of the building on the date of vesting. We are also unable to discern any legislative policy in support of that construction.”

Bhudan Singh vs Nabi Bux, AIR 1970 SC 1880, (1969) 2 SCC 481, 1970 2 SCR 10

Examination of a witness at any stage u/s 311 of Cr.P.C.

Power to summon material witness, or examine person present:

Section 311 of Criminal Procedure Code of 1973 is 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.

Exercise of power to recall any or to summon any person:

In Jamatraj Kewalji Govani Vs The State Of Maharashtra Air 1968 Sc 178: 1968 Cri LJ 231 was a case arising out of Section 540 of old Cr. P. C. and in respect of prosecution under Section 135 of Customs Act. A custom inspector searched the shop of accused and seized certain watches from the accused which were alleged to be smuggled. Continue reading

Appeal against acquittal under Negotiable Instruments Act.

Dismissal of complaint of dishonour of cheque.

What is the remedy for complainant in case of dismissal of complaint filed under section 138 of Negotiable Instruments Act?

To file an appeal under section 372 of Criminal Procedure Code, 1973 or to seek leave to appeal under section 378 of Cr.P.C.?
If the victim also happens to be the complainant and the appeal is against acquittal, he is required to take leave as provided in Section 378 of the Criminal Procedure Code but if he is not the complainant, he is not required to apply for or obtain any leave. For the appeal against inadequacy of compensation or punishment on a lesser offence, no leave is necessary at the instance of avictim, whether he is the complainantor not.
[Source: Bhavuben Dineshbhai Makwana vs. State of Gujarat, 2013Crl.L.J. 4225 (Guj)(FB)]
The complainant in a case under Section 138 of the Negotiable Instruments Act cannot challenge the order of acquittal before the Sessions Court under the proviso to Section 372 of the Cr.P.C. and his remedy is only to file an appeal to the High Court with special leave under Section 378 (4) Cr.P.C.
(Source: Shibu Joseph vs. Tomy K.J, ILR 2013 (4) Ker.866)
Thus the remedy available to the complainants under Section 138 N.I. Act against order of acquittal is only to seek special leave before filing an appeal under Section 378 (4) Cr.P.C. before the High Court. In the instant case, the appellant has not sought any such leave. Consequentially the appeals filed by the appellant are dismissed as not maintainable.
[Source: THE BHAJANPURA COOPERATIVE URBAN VS. SUSHIL KUMAR, (Delhi High Court)]