"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.

Wednesday, March 4, 2009

Recent Judgments

Award of (Shylockian) interest under Section 34 of CPC

C.K. Sasankan v. The Dhanalakshmi Bank Ltd. CIVIL APPEAL No. 1317 OF 2009. Date of Judgment 27-02-09

Debtor dead and gone, but the legal heirs are visited with the judgment of court to pay off the debt with an interest at rate of ‘25% from the date of filing of the suit till the date of judgment and at 19.4%, thereafter till its realisation.’ Is it court or shylock in business, one may wonder.

Section 34 CPC mandates the court to award interest at reasonable rate. The Debt Recovery Tribunal found the above interest rate to be reasonable. The SC reversed the order reminding the lower court that there are certain principles to be followed while awarding interest, though section34 have the expression ‘may’.

1. Interest can be awarded in terms of an agreement or statutory provisions and it can also be awarded by reason of usage or trade having the force of law or on equitable considerations but the same cannot be awarded by way of damages except in cases where money due is wrongfully withheld and there are equitable grounds therefore, for which a written demand is mandatory.
2. In absence of any agreement or statutory provision or a mercantile usage, interest payable can be only at the market rate and such interest is payable upon establishment of totality of circumstances justifying exercise of such equitable jurisdiction.
3. In ascertaining the rate of interest the courts of law can take judicial notice of inflation and rely on bank rate of interest.

The SC slashed down the rate of interest to 9%.

SC on sentencing policy in the background of death sentence
State of U.P. v. Sattan @ Satyendra & Ors. CRIMINAL APPEAL NOS. 314-315 OF 2001. Date of Judgment 27-02-09

Criminal law has a role to play in securing the life and property of the people. The court has to mould its sentence to meet the challenges and conflicting ideologies existing in the society. Awarding appropriate sentence is crucial. A lopsided sentencing policy can lead to a lawless society.

Court has the option of corrective or deterrence approaches and it need to balance in the facts of the case, to be “a decisive reflection of social consciousness of society" as said by Freidman in ‘Law in Changing Society.’ The sentencing policy also has to be tempered with mercy, when it is required.

The considerations could be on:

1. the facts and given circumstances in each case

2. the nature of the crime

3. the manner in which it was planned and committed

4. the motive for commission of the crime

5. the conduct of the accused

6. the nature of weapons used

7. all other attending circumstances

8. proportion between crime and punishment

“Undue sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy of law and society could not long endure under such serious threats. It is, therefore, the duty of every court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed.”

The object of sentence is to protect the society and deter the criminal. While sentencing the court should take into consideration its impact on social order. “Any liberal attitude by imposing meagre sentences or taking too sympathetic view merely on account of lapse of time in respect of such offences will be result-wise counter productive in the long run and against societal interest which needs to be cared for and strengthened by string of deterrence inbuilt in the sentencing system.”

While sentencing, the court needs to bear in mind not only the rights of the accused but the rights of the victims also. Sentence is a response to the society’s demand for justice.

The court relied on Bachan Singh v. State of Punjab 1980 (2) SCC 684, Machhi Singh v. State of Punjab 1983 (3) SCC 470 and Devender Pal Singh v. State of NCT of Delhi 2002 (5) SCC 234 to come to the conclusion that “the circumstances of the case are such that death sentence is warranted, the court would proceed to do so.”

Circumstantial Evidence – principles to be followed

Vithal Eknath Adlinge v. State of Maharashtra. CRIMINAL APPEAL NO. 662 OF 2007. Date of Judgment 27-02-09

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