May 2018 – advocatemmmohan

sec.498A IPC – no complaint was made by Malathi or her parents regarding any dowry related harassment – no conviction under sec.498 A IPC= Charges were framed against A-1, A-2 and A-3 for offences punishable under Sections 498A, 302 read with Section 34 IPC and also under Section 4-A(1)(2)(i) of the Tamil Nadu Prohibition of Harassment of Women Act, 1998 (1998 Act, for short). Court of Sessions at Cuddalore by its judgment and order dated 11.09.2006 in Sessions Case No.82/2006 found A-1 guilty of offences punishable under Section 302, 498A IPC and under Section 4-A(1)(2)(i) of 1998 Act. The appellants were acquitted of the 5 charges under Section 302 IPC and Section 4-A(1)(2)(i) of 1998 Act but were convicted for the offences under Section 498A IPC = The evidence in the present case shows that after the letter was sent by Malathi to the office of Chief Minister, inquiries were conducted by the police. The evidence further indicates that at that juncture, no complaint was made by Malathi or her parents regarding any dowry related harassment. Further, she was brought to Cuddalore on 08.12.2003 where the couple used to live separately and the incident in question occurred on the intervening night between 8th and 9th December, 2003. In the circumstances, 7 the evidence on record is completely inadequate to bring home the charge against the appellants. We have gone through the entirety of the matter and in our considered view, both the appellants are entitled to acquittal.

1 Non-Reportable IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.1340 OF 2013 Manoharan & Anr. ….Appellants Versus State Rep. by Inspector of Police …. Respondent J…

justifiability of the action taken by the Drugs Controller General of India and the Indian Council of Medical 5 Research (ICMR) pertaining to the approval of a vaccine, namely, Human Papilloma Virus (HPV) = When issues, facts come before a Court of law for adjudication, the Court is to decide the issues on the basis of evidence and materials brought before it and in which adjudication Parliamentary Committee Report may only be one of the materials, what weight has to be given to one or other evidence is the adjudicatory function of the Court which may differ from case to case. The Parliamentary Committee Reports cannot be treated as conclusive or binding of what has been concluded in the Report – OUR CONCLUSIONS (i) According to subclause (2) of Article 105 of Constitution of India no Member of Parliament can be held liable for anything said by him in Parliament or in any committee. The reports submitted by Members of Parliament is also fully covered by protection extended under subclause (2) of Article 105 of the Constitution of India. (ii) The publication of the reports not being only permitted, but also are being encouraged by the Parliament. The general public are keenly interested in knowing about the parliamentary proceedings including parliamentary reports 134 which are steps towards the governance of the country. The right to know about the reports only arises when they have been published for use of the public in general. (iii) Section 57(4) of the Indian Evidence Act, 1872 makes it clear that the course of proceedings of Parliament and the Legislature, established under any law are facts of which judicial notice shall be taken by the Court. (iv) Parliament has already adopted a report of “privilege committee”, that for those documents which are public documents within the meaning of Indian Evidence Act, there is no requirement of any permission of Speaker of Lok Sabha for producing such documents as evidence in Court. (v) That mere fact that document is admissible in evidence whether a public or private document does not lead to draw any presumption that the contents of the documents are also true and correct. (vi) When a party relies on any fact stated in the 135 Parliamentary Committee Report as the matter of noticing an event or history no exception can be taken on such reliance of the report. However, no party can be allowed to ‘question’ or ‘impeach’ report of Parliamentary Committee. The Parliamentary privilege, that it shall not be impeached or questioned outside the Parliament shall equally apply both to a party who files claim in the court and other who objects to it. Any observation in the report or inference of the Committee cannot be held to be binding between the parties. The parties are at liberty to lead evidence independently to prove their stand in a court of law. (vii) Both the Parties have not disputed that Parliamentary Reports can be used for the purposes of legislative history of a Statute as well as for considering the statement made by a minister. When there is no breach of privilege in considering the Parliamentary materials and reports of the Committee by the Court for the 136 above two purposes, we fail to see any valid reason for not accepting the submission of the petitioner that Courts are not debarred from accepting the Parliamentary materials and reports, on record, before it, provided the Court does not proceed to permit the parties to question and impeach the reports. (viii) The Constitution does not envisage supremacy of any of the three organs of the State. But, functioning of all the three organs is controlled by the Constitution. Wherever, interaction and deliberations among the three organs have been envisaged, a delicate balance and mutual respect are contemplated. All the three organs have to strive to achieve the constitutional goal set out for ‘We the People’. Mutual harmony and respect have to be maintained by all the three organs to serve the Constitution under which we all live. (ix) We are of the view that fair comments on report of the Parliamentary Committee are fully 137 protected under the rights guaranteed under Article 19(1)(a). However, the comments when turns into personal attack on the individual member of Parliament or House or made in vulgar or abusive language tarnishing the image of member or House, the said comments amount to contempt of the House and breach of privilege. (x) The function of adjudicating rights of the parties has been entrusted to the constituted courts as per Constitutional Scheme, which adjudication has to be made after observing the procedural safeguards which include right to be heard and right to produce evidence. Parliament, however, is not vested with any adjudicatory jurisdiction which belong to judicature under the Constitutional scheme. (xi) Admissibility of a Parliamentary Committee Report in evidence does not mean that facts stated in the Report stand proved. When issues of facts come before a Court of law for adjudication, the Court is to decide the issues 138 on the basis of evidence and materials brought before it. 152. The questions having been answered as above, let these writ petitions be listed before the appropriate Bench for hearing.

1 REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL ORIGINAL JURISDICTION WRIT PETITION (CIVIL) NO. 558 OF 2012 Kalpana Mehta and others …Petitioner(s) Versus Union of India and others …Respondent(s)…

we hold that the rights under the amendment are applicable to living daughters of living coparceners as on 9th September, 2005 irrespective of when such daughters are born……” (emphasis supplied by us) It is pertinent to note here that recently, this Court in Danamma @ Suman Surpur & Anr. Vs. Amar & Ors, 2018 (1) Scale 657 dealt, inter-alia, with the dispute of daughter’s right in the ancestral property. In the above case, father of the daughter died in 2001, yet court permitted the daughter to claim the right in ancestral property in view of the amendment in 2005. On a perusal of the judgment and after having regard to the peculiar facts of the Danamma (supra), it is evident that the Division Bench of this Court primarily did not deal with the issue of death of the father rather it was mainly related to the question of law whether daughter who born prior to 2005 amendment would be entitled to claim a share in ancestral property or not? In such circumstances, in our view, Prakash & Ors. (supra), would still hold precedent on the issue of death of coparcener for the purpose of right of daughter in ancestral property. Shortly put, only living daughters of living 9 coparceners would be entitled to claim a share in the ancestral property. 11) Hence, without touching any other aspect in the present case, we are of the view that the appellants were not the coparceners in the Hindu Joint Family Property in view of the 1989 amendment, hence, they had not been entitled to claim partition and separate possession at the very first instance. At the most, they could claim maintenance and marriage expenses if situation warranted.

REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 1933 OF 2009 Mangammal @ Thulasi and Anr. ….Appellant(s) Versus T.B. Raju and Ors. …. Respondent(s) J…

“The prosecution for perjury should be sanctioned by courts only in those cases where the perjury appears to be deliberate and conscious and the conviction is reasonably probable or likely. =The mere fact that a person has made a contradictory statement in a judicial proceeding is not by itself always sufficient to justify a prosecution under Sections 199 and 200 of the Penal Code, 1860 (45 of 1860) (hereinafter referred to as “IPC”); but it must be shown that the defendant has intentionally given a false statement at any stage of the judicial proceedings or fabricated false evidence for the purpose of using the same at any stage of the judicial proceedings. Even after the above position has emerged also, still the court has to form an opinion that it is expedient in the interests of justice to initiate an inquiry into the offences of false evidence and offences against public justice and more specifically referred to in Section 340(1) CrPC, having regard to the overall factual matrix as well as the probable consequences of such a prosecution. (See K.T.M.S. Mohd. v. Union of India). The 4 (2017) 1 SCC 113 8 court must be satisfied that such an inquiry is required in the interests of justice and appropriate in the facts of the case.” 14. We are of the considered view that initiation of proceedings in the present case was not consistent with the parameters laid down by this Court. The election petition itself has been dismissed and considering the entirety of the matter, it would not be expedient to initiate proceedings under Section 340 Cr.P.C. read with Section 195(1)(b)(i) of Cr.P.C. We, therefore, accept the appeal and close the proceedings. The appeal stands allowed and the judgment and order under appeal is set aside.

1 Non-Reportable IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 649 OF 2018 (Arising out of S.L.P. (Crl.) No.545 of 2016) Prof. Chintamani Malviya ……Appellant Versus…

truck was running ahead of the maruti car and at the time of accident, the distance between the truck and maruti car was only 10 15 feet. = Regulation 23 of the Rules of the Road Regulations, 1989 – “23. Distance from vehicles in front. The driver of a motor vehicle moving behind another vehicle shall keep at a sufficient distance from that other vehicle to avoid collision if the vehicle in front should suddenly slow down or stop.” The expression ‘sufficient distance’ has not been defined in the Regulations or elsewhere. The thumb rule of sufficient distance is at least a safe distance of two to three seconds gap in ideal conditions to avert collision and to allow the following driver time to respond. The distance of 10–15 feet between the truck and maruti car was certainly not a safe distance for which the driver of the maruti car must take the blame=whether the Tribunal should have at least answered the issue of contributory negligence of the truck driver in favour of the appellants (claimants). The question of contributory negligence would arise when both parties are involved in the accident due to rash and negligent driving. In a case such as the present one, when the maruti car was following the truck and no fault can be attributed to 13 the truck driver, the blame must rest on the driver of the maruti car for having driven his vehicle rashly and negligently= It is a well settled position that fastening liability under Section 140 of the Act on the owner of the vehicle is regardless of the fact that the subject vehicle was not driven rashly and negligently. We may usefully refer to the decisions in Indra Devi and others Vs. Bagada Ram and another1 and 1 (2010) 13 SCC 249 14 Eshwarappa alias Maheshwarappa and Another Vs. C.S. Gurushanthappa and Another2 , which are directly on the point. Accordingly, even though the appeal fails insofar as claim petition under Section 166 of the Act, for the appellants having failed to substantiate the factum of rash and negligent driving by the driver of the subject truck, the appellants must succeed in this appeal to the limited extent of relief under Section 140 of the Act. We have no hesitation in moulding the relief on that basis. For the reasons mentioned above, this appeal is partly allowed. The appellants are granted limited relief under Section 140 of the Act. The respondent Nos.2 and 3 are made jointly and severally liable to pay a sum of Rs.50,000/ (Rupees Fifty Thousand Only) to the appellants towards compensation under Section 140 of the Act, on account of the death of Balvinder Kaur in the accident

1 REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 10145 OF 2016 NISHAN SINGH & ORS. …..Appellant(s) :Versus: ORIENTAL INSURANCE COMPANY LTD. THROUGH REGIONAL MANAGER & ORS. ....Respondent(s) J U D G M E N T A.M. Khanwilkar, J. 1. This appeal, by special leave, filed by the claimants…

where the accident occurs without any fault of the owner of the vehicle or the fault of the other vehicle, the liability to pay compensation, at best, must be determined in terms of Section 140 of the Act as has been held in A. Sridhar (supra). It is true that the High Court in the present case has overturned the finding recorded by the Tribunal that the motorcycle was driven by appellant No.2 at the relevant time when the accident occurred and, instead, concluded that the motorcycle was, in fact, driven by deceased Krishna Kumar. In that sense, the accident occurred neither due to the fault of the owner of the vehicle (appellant No.1) who, admittedly, was not present 9 or travelling on the motorcycle at the relevant time nor due to the fault of any other vehicle. However, on a deeper scrutiny of the materials on record, we are of the opinion that the High Court committed manifest error, an error apparent on the face of the record, in reversing the finding recorded by the Tribunal that the motorcycle was being driven by appellant No.2 (son of appellant No.1 – owner of the motorcycle) and had caused accident due to rash and negligent driving

1 REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 8411 OF 2015 MOHAR SAI AND ANR. …..Appellant(s) :Versus: GAYATRI DEVI AND ORS. …

the offence has committed by the Advocates, this Court considers it necessary to issue certain directions because the offence in this case was committed in a court room while Presiding Officer was sitting and that too by Advocates, who are also the part of the system. No one can be permitted to pollute the pious stream of justice delivery system. = “(i) It is prayed to include section 307 of IPC on the charge sheet submitted in Crime No. 419 of 2010, police station Wazirganj, Lucknow. (ii) It is prayed to impose other relevant sections of IPC or other Acts against accuseds in crime no. 419/2010, police station Wazirganj, LKO that Lordship deems fit, just and proper for assaulting in Judicial Custody even after Hon’ble High Court Security Instructions. (iii) It is prayed to frame proper charges against Jameeruddin Siddiqui (exADJ). (iv) It is prayed to take cognizance against the concerned Emergency Medical Officer of Adarsh Karavas on 24/06/2010. (v) It is prayed to regard para 8 of Counter Affidavit as a key to discover all the accused. (vi) It is prayed to grant reasonable time for the completion of Investigation as Lordship deems, just, fit and proper. (vii) It is prayed to pass any other order in favour of the petitioners.”

1 NONREPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 648 OF 2018 (Arising out of SLP (Crl.) No.2082 of 2016) OSAMA AZIZ AND ANR. …

declaration that he was entitled to undivided half share in the suit property which was described in schedule to the plaint. Relying on two sale deeds effected by Defendant Nos.1 and 2 it was contended that the appellant was entitled to one half share in the suit property. It may be noted here that Defendant No.2, S. 3 Krishnamoorthy did not have a son but Defendant No.1, S. Venkateswaran had four sons. However, said four sons were not made parties in Original Suit No.64 of 1985 = The lower appellate court held that since four sons of Defendant No.1 were not parties to the suit for declaration and partition, insofar as branch of said Defendant No.1 was concerned the sale deed in favour of the appellant would be valid only in respect of share of said Defendant No.1. The lower appellate court held that the appellant would thus be entitled to the share of Defendant No.1 in his branch, namely 1/4 x 1/6 = 1/24 and the share of Defendant No.2. The 4 resultant share that the appellant was entitled to was, however, computed to be 5/24.= apex court held – However, there is a small error which needs to be corrected. The addition of 1/24 share of Defendant No.1 and 1/4th share of Defendant No.2 would aggregate to 7/24 and not 5/24. Except for this correction, the judgments under appeal do not call for any interference by this Court.

1 Non-Reportable IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NOs.5534-5535 of 2007 A. Dharmalingam (Dead) by LRs. ……Appellants VERSUS V. Lalithambal & Ors. etc. etc. ..….…

Section 50 of the NDPS Act. It is, therefore, mandatory for the prosecution to prove that the search and recovery was made from the appellant in the presence of a Magistrate or a Gazetted Officer. 29. Though, the prosecution examined as many as five police officials (PW-1 to PW-5) of the raiding police party but none of them deposed that the search/recovery was made in presence of any Magistrate or a Gazetted Officer.- the prosecution was not able to prove that the search and recovery of the contraband (Charas) made from the appellant was in accordance with the procedure prescribed under Section 50 of the NDPS Act. Since the non-compliance of the mandatory procedure prescribed under Section 50 of the NDPS Act is fatal 16 to the prosecution case and, in this case, we have found that the prosecution has failed to prove the compliance as required in law, the appellant is entitled to claim its benefit to seek his acquittal.

1 REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 273 OF 2007 Arif Khan @ Agha Khan ... Appellant(s) Versus State of Uttarakhand ... Respondent(s)…

Direct the appellant to treat the employees working in the Canteen to be the regular employees of the Chennai Port Trust and accordingly pay them all attendant and monetary 4 benefits at par with the regular employees of the Chennai Port Trust. = when the Management of the Port Trust has control over the functioning of the canteen- all the workers employed in the canteen are entitled for the relief what they claimed =If we see the Indian Petrochemical’s case, the similarity of the factual issues is quite startling. In that case – (a) The canteen has been there since the inception of the appellant’s factory. (b) The workmen have been employed for long years and despite a change of contractors, the workers have continued to be employed in the canteen. (c) The premises, furniture, fixture, fuel, electricity, utensils etc. have been provided for by the appellant. (d) The wages of the canteen workers have to be reimbursed by the appellant. (e) The supervision and control on the canteen is exercised by the appellant through its authorised officer, as can be seen from the various clauses of the 11 contract between the appellant and the contractor. (f) The contractor is nothing but an agent or a manager of the appellant, who works completely under the supervision, control and directions of the appellant. (g) The workmen have the protection of continuous employment in the establishment. On the basis of the above facts, the Supreme Court arrived at the opinion that the workmen were the workmen of the management and by the same process of reasoning, the learned single Judge also came to the conclusion that the canteen workmen were the workmen of the Port Trust.

1 REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL No.1381 OF 2010 Chennai Port Trust ….Appellant(s) VERSUS The Chennai Port Trust Industrial Employees Canteen Workers Welfare…