"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.

Friday, January 9, 2009

SC Judgments

Interpretation of "soon before death" in S. 304 IPC

Deen Dayal & Ors. v. State of U.P. Criminal Appeal No. 67 of 2006. Date of Judgment 07-01-09
The argument of the appellants inter alia was that the ingredient 'soon before her death' in S.304 is not met in this case as the evidence of last demand of dowry was on July 1998 and she died on September 6, 1998. Therefore presumption under S. 113-A of the Evidence Act cannot also be raised against the appellant. The SC rejected the contention and held as follows:
"The words `soon before her death' occurring in section 304 B of the Penal Code are to be understood in a relative and flexible sense. Those words cannot be construed as laying down a rigid period of time to be mechanically applied in each case. Whether or not the cruelty or harassment meted out to the victim for or in connection with the demand of dowry was soon before her death and the proximate cause of her death, under abnormal circumstances, would depend upon the facts of each case. There can be no fixed period of time in this regard."

For reiteration of the position, see another judgement of the same day by a different bench.

Prem Kanwar v. State of Rajasthan. Criminal Appeal No. 58 of 2002. Date of Judgment 07-01-09

"The determination of the period which can come within the term `soon before' is left to be determined by the Courts, depending upon facts and circumstances of each case. Suffice, however, to indicate that the expression `soon before' would normally imply that the interval should not be much between the concerned cruelty or harassment and the death in question. 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."

Protection of public servant under S.197 C. P.C .

Choudhury Parveen Sultana v. West Bengal and Another. Criminal Appeal No. 8 of 2009. Date of Judgment 07-01-09

1. All acts done by a public servant in the purported discharge of his official duties cannot as a matter of course be brought under the protective umbrella of Section 197 Cr.P.C.

2. There can be cases of misuse and/or abuse of powers vested in a public servant which can never be said to be a part of the official duties required to be performed by him.

3. The underlying object of Section 197 Cr.P.C is to enable the authorities to scrutinize the allegations made against a public servant to shield him/her against frivolous, vexatious or false prosecution initiated with the main object of causing embarrassment and harassment o the said official.

4. However, if the authority vested in a public servant is misused for doing things which are not otherwise permitted under the law, such acts cannot claim the protection of Section 197 Cr.P.C. and have to be considered de hors the duties which a public servant is required to discharge or perform.

5. Whether there is a misuse of authority is a question of fact

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