Tuesday, July 21, 2009
News
High Court: bid to stifle criticism amounts to censorship
Section 377: Supreme Court declines to stay High Court judgment
Rajya Sabha passes the Right to Education Bill. The Bill as introduced is available here
Thursday, July 16, 2009
Recent Judgments
Culpable Homicide or Murder?
Raj Kumar v. State of Maharashtra. CRIMINAL APPEAL NO. 1233 OF 2009. date of Judgment 15-07-09
To decide whether an act is murder or culpable homicide, courts could take a three step approach.
Step 1
Ask the question whether the accused has done an act by doing which he has caused the death of another.
Proof of such causal connection between the act of the accused and the death leads to the second stage.
Step 2
Whether that act of the accused amounts to culpable homicide as defined in Section 299. If the answer to this question is prima facie found in the affirmative, the stage for considering the operation of Section 300 IPC is reached.
This is the stage at which the court should determine whether the facts proved by the prosecution bring the case within the ambit of any of the four clauses of the definition of murder contained in Section 300 IPC.
Step 3
If the answer to this question is in the negative, the offence would be culpable homicide not amounting to murder punishable under Part I or Part II of Section 304 IPC, depending, respectively, on whether second or third clause of Section 299 IPC is applicable.
If this question is found in the positive, but the case comes within any of the exceptions enumerated in Section 300 IPC, the offence would still be culpable homicide not amounting to murder punishable under the First Part Section 304 IPC.
The above are only broad guidelines and not cast-iron imperatives.
Raj Kumar v. State of Maharashtra. CRIMINAL APPEAL NO. 1233 OF 2009. date of Judgment 15-07-09
To decide whether an act is murder or culpable homicide, courts could take a three step approach.
Step 1
Ask the question whether the accused has done an act by doing which he has caused the death of another.
Proof of such causal connection between the act of the accused and the death leads to the second stage.
Step 2
Whether that act of the accused amounts to culpable homicide as defined in Section 299. If the answer to this question is prima facie found in the affirmative, the stage for considering the operation of Section 300 IPC is reached.
This is the stage at which the court should determine whether the facts proved by the prosecution bring the case within the ambit of any of the four clauses of the definition of murder contained in Section 300 IPC.
Step 3
If the answer to this question is in the negative, the offence would be culpable homicide not amounting to murder punishable under Part I or Part II of Section 304 IPC, depending, respectively, on whether second or third clause of Section 299 IPC is applicable.
If this question is found in the positive, but the case comes within any of the exceptions enumerated in Section 300 IPC, the offence would still be culpable homicide not amounting to murder punishable under the First Part Section 304 IPC.
The above are only broad guidelines and not cast-iron imperatives.
Tuesday, July 14, 2009
Recent Judgments
Power of the HC to transfer a case to itself from Administrative Tribunal and Decide
State of West Bengal v. Samar Kumar Sarkar. CIVIL APPEAL NO. 4350 OF 2009. Date of Judgment 14.07.09
The court held that though the power of the HC under Art. 227 is wide enough to cover Tribunals, the power of interference is limited to seeing that the Tribunal functions within the limits of its authority.
The appeal is allowed observing that "the High Court could not, under the powers conferred by this Article, withdraw a case to itself from a Tribunal and dispose of the same, or determine merely the question of law as to the interpretation of the Constitution arising before the Tribunal."
Territorial Jurisdiction of the Magistrate's Court to take congnizance of an offence
Rajiv Modi v. Sanjay Jain. CRIMINAL APPEAL NO. 1214 OF 2009. Date of Judgment 14.07.09
1. To constitute the territorial jurisdiction, the whole or a part of the "cause of action" must have arisen within the territorial jurisdiction of the court.
2. The Court on basis of the averments made in the complaint, if it is prima facie of the opinion that the whole or a part of cause of action has arisen in its jurisdiction, can certainly take cognizance of the complaint.
3. There is no need to ascertain that the allegations made are true in fact.
Monday, July 13, 2009
Recent Judgments
Legality of an Amendment Act allegedly brought to nullify a judicial decision
State of Himachal Pradesh v. Narain Singh. CIVIL APPEAL NO. 1678 OF 2002. Date of Judgment 08-07-09
"Where there is a competent legislative provision which retrospectively removes the substratum of foundation of a judgment, the said exercise is a valid legislative exercise provided it does not transgress any other constitutional limitation."
Besides this there were other issues raised but left unanswered as found unnecessary by the court;
1. Unconstitutionality of the Act for being arbitrary, malafide and being colourable legislation
2. The Amendment Act as violative of the basic structure of the prinicipal legislation
Reference No. 1/2006 U/A 317 (I) of the Constitution of India, CPSC
Date of Judgment 08-07-09
Under Clause (1) of Article 317, the President of India referred the matter to the Supreme Court of India for an inquiry and report as to whether Shri. Ashok Darbari, Chairman of the Chattisgarh Public Service Commission ought to be removed from the office of Chairman of the Commission on the grounds of misbehaviour.
Article 317 do not define 'misbehaviour'. The court construes misbehaviour in the context as "[t]he Chairman of the Public Service Commission is expected to show absolute integrity and impartiality in exercising the powers and duties as Chairman. His actions shall be transparent and he shall discharge his functions with utmost sincerity and integrity. If there is any failure on his part, or he commits any act which is not befitting the honour and prestige as a Chairman of the Public Service Commission, it would amount to misbehaviour as contemplated under the Constitution.
Four charges were levelled and the court found none. The reference is answered in the negative.
Rule of secrecy v. Purity of election in an election petition
SMT. REKHA RANA v. JAIPAL SHARMA. CIVIL APPEAL NO. 5891 OF 2008. Date of Judgment 10.07.09
The repsondent was successfull getting an order from the election tribunal to de-seal the marked electoral roll of 2005 Legislative Assembly election. The election petitioner (respondent herein) sought to prove that there has been malpractice in the line of (i) 96 voters had cast their votes twice during the process of polling; (ii) 29 votes had been cast in favour of the appellant by way of impersonation, on behalf of the persons who were not available in the constituency on the date of polling; (iii) 53 votes had been cast in favour of the appellant by way of impersonation on behalf of the persons who had died prior to the date of polling; and (iv) 10 votes had been cast in favour of the appellant by way of impersonation on behalf of two persons who were serving sentences in jail and on behalf of eight persons who were abroad on the date of polling. The election petitioner incidentally lost the election by a margin of 25 votes.
Against the order of de-sealing of the electoral roll this civil Appeal is preferred contending that de-sealing will affect the principle of secrecy
Court held that when two principles compete, the "purity of election" principle must have its way and that the "rule of secrecy", as contemplated in Section 94 of the R. P Act, cannot be pressed into service to suppress a wrong coming to light and to protect a fraud on the election process.
State of Himachal Pradesh v. Narain Singh. CIVIL APPEAL NO. 1678 OF 2002. Date of Judgment 08-07-09
"Where there is a competent legislative provision which retrospectively removes the substratum of foundation of a judgment, the said exercise is a valid legislative exercise provided it does not transgress any other constitutional limitation."
Besides this there were other issues raised but left unanswered as found unnecessary by the court;
1. Unconstitutionality of the Act for being arbitrary, malafide and being colourable legislation
2. The Amendment Act as violative of the basic structure of the prinicipal legislation
Reference No. 1/2006 U/A 317 (I) of the Constitution of India, CPSC
Date of Judgment 08-07-09
Under Clause (1) of Article 317, the President of India referred the matter to the Supreme Court of India for an inquiry and report as to whether Shri. Ashok Darbari, Chairman of the Chattisgarh Public Service Commission ought to be removed from the office of Chairman of the Commission on the grounds of misbehaviour.
Article 317 do not define 'misbehaviour'. The court construes misbehaviour in the context as "[t]he Chairman of the Public Service Commission is expected to show absolute integrity and impartiality in exercising the powers and duties as Chairman. His actions shall be transparent and he shall discharge his functions with utmost sincerity and integrity. If there is any failure on his part, or he commits any act which is not befitting the honour and prestige as a Chairman of the Public Service Commission, it would amount to misbehaviour as contemplated under the Constitution.
Four charges were levelled and the court found none. The reference is answered in the negative.
Rule of secrecy v. Purity of election in an election petition
SMT. REKHA RANA v. JAIPAL SHARMA. CIVIL APPEAL NO. 5891 OF 2008. Date of Judgment 10.07.09
The repsondent was successfull getting an order from the election tribunal to de-seal the marked electoral roll of 2005 Legislative Assembly election. The election petitioner (respondent herein) sought to prove that there has been malpractice in the line of (i) 96 voters had cast their votes twice during the process of polling; (ii) 29 votes had been cast in favour of the appellant by way of impersonation, on behalf of the persons who were not available in the constituency on the date of polling; (iii) 53 votes had been cast in favour of the appellant by way of impersonation on behalf of the persons who had died prior to the date of polling; and (iv) 10 votes had been cast in favour of the appellant by way of impersonation on behalf of two persons who were serving sentences in jail and on behalf of eight persons who were abroad on the date of polling. The election petitioner incidentally lost the election by a margin of 25 votes.
Against the order of de-sealing of the electoral roll this civil Appeal is preferred contending that de-sealing will affect the principle of secrecy
Court held that when two principles compete, the "purity of election" principle must have its way and that the "rule of secrecy", as contemplated in Section 94 of the R. P Act, cannot be pressed into service to suppress a wrong coming to light and to protect a fraud on the election process.
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