"I realise that some of my criticisms may be mistaken; but to refuse to criticize judgements for fear of being mistaken is to abandon criticism altogether... If any of my criticisms are found to be correct, the cause is served; and if any are found to be incorrect the very process of finding out my mistakes must lead to the discovery of the right reasons, or better reasons than I have been able to give, and the cause is served just as well."

-Mr. HM Seervai, Preface to the 1st ed., Constitutional Law of India.

Thursday, November 13, 2008

SC Judgments

New Grounds cannot be Raised in an Appeal Under Article 136
M.Venugopal v. Dy. Commissioner,Chitradurga District & Ors. Civil Appeal No(s). 6262 of 2003. Date of Judgment 06-11-08

Petitioner cannot raise a new plea, here of adverse possession, at this stage of appeal, which has not been raised in earlier stage as also when the original petititon is not amended to that effect.

Acquital of co- Accused No Reason for Acquital of All

Munna @ Pooran Yadav v. State of Madhya Pradesh. Criminal Appeal No. 1025 of 2006. Date of Judgment 4-11-08

No such law is laid down by this court that when the two other accused persons are acquitted (by giving benefit of doubt), the third one must be given the same benefit of doubt. Principle of parity is not available when incrimiating evidence is available against on of the accused.

Appreciation of Extra-judicial Confession

Mohd. Azad @ Samin v. State of West Bengal. Criminal Appeal No. 1729 of 2008. Date of Judgment 5-11-08

"22. 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 of the evidence as to confession, like any other evidence, depends upon the veracity of the witness to whom it has been made. The value of the evidence as to the confession depends on the reliability of the witness who gives the evidence. It is not open to any court to start with a 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 of attributing an
untruthful statement to the accused, the words 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. After subjecting the evidence of the witness to a rigorous test on the touchstone of credibility, the extra-judicial confession can be accepted and can be the basis of a conviction if it passes the test of credibility."

Principles to be Followed While Interfering under Article 226 and Section 482 of Cr. P C at the Threshold of a Proceeding

State of Kerala v. Orison J Francis & Anr. Criminal Appeal No. 1723 of 2008. Date of Judgment 5-11-08

"8. The scope for interference at the threshold by exercising power under Section 482 of the Code has been succinctly stated by this Court in State of Haryana v. Bhajan Lal [1992 Supp(1)SCC 335]. In paragraph 102 it was stated as follows:
... principles of law enunciated by this Court ... in the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories ... by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised.

(1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.

(2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.

(3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.

(4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.

(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.

(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.

(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge."

Restatement of Appreciation of Circumstantial Evidence

Mula Devi & Anr. v. State of Uttarakhand. Criminal Appeal No. 1722 of 2008. Date of Judgment 4-11-08

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