39. Motive alone is not sufficient to convict

In criminal trial, the motive alone is not sufficient to convict any person for committing the offence, unless there is presumption of law for convicting the accused on the basis of motive. In the entire Evidence Act or any other statute, there is no such presumption that merely on the basis of motive an accused can be convicted for committing a criminal offence. Therefore, the learned trial judge was wholly unjustified to apply Section 114 Evidence Act for convicting the appellant for the murder of his wife and daughter merely on the basis of motive. As we have stated above, there is no presumption in Section 114 Evidence Act or any other section of this Act or any other statute that a person who has motive to commit a particular crime is guilty for the commission of that crime. Therefore this part of the impugned judgment cannot be sustained and the appellant cannot be held guilty for committing the murder of his wife and daughter with the aid of section 114 Evidence Act on the basis of presumption.

(see, Criminal Appeal No. 136 of 2001 Bhoora
Vs. State of U.P. Allahabad High Court 17/02/2009)

38. Interim bail

In a recent decision of the Supreme Court dated 23.3.09 in Criminal Appeal No. 538 of 2009, Lal Kamlendra Pratap Singh v. State of U.P., which has been directed to be circulated in the High Court and in subordinate Courts in U.P. it has been observed that in appropriate cases the Court concerned may consider releasing an accused on interim bail, pending consideration of his regular bail, and that arrest was not a must in each case when an FIR of a cognizable offence was lodged.

The Full Bench of the Allahabad High Court in Amarawati v. State of U.P., 2005 Cri.L.J. 755 has been specifically approved in this decision. In this regard the Full Bench has held in Amarawati :
i) Even if a cognizable offence is disclosed in the FIR or complaint the arrest of the accused is not a must, rather the police officer should be guided by the decision of the Supreme Court in Joginder Kumar v. State of U.P., 1994 Cr LJ 1981, before deciding whether to make an arrest or not.
ii) The High Court should ordinarily not direct any Subordinate Court to decide the bail application the same day, as that would be interfering with the judicial discretion of the Court hearing the bail application. However, as stated above, when the bail application is under Section 437, CrPC ordinarily the Magistrate should himself decide the bail application the same day, and if he decides in a rare and exceptional case not to decide it on the same day, he must record his reasons in writing. As regards the application under Section 439, CrPC it is in the discretion of the learned Sessions Judge considering the facts and circumstances whether to decide the bail application the same day or not, and it is also in his discretion to grant interim bail the same day subject to the final decision on the bail application later.

In the light of the aforesaid observations of the Apex Court in Lal Kamlendra Pratap Singh v. State of U.P. and the observations of the Full Bench of this Court in Amarawati, a division bench of Allahabad High Court (Hon .Amar Saran and Hon. R.N. Misra , J.J.) on 30/03/2009 in criminal Writ Petition NO. 4983 of 2009 Pradeep Tyagi Vs. State of U.P. and others directed that :

”if an application is moved before the competent Magistrate within 3 weeks, a date may be fixed for appearance of the petitioner in about a week thereafter. The petitioner may not be arrested without permission of the Magistrate between the date of moving of the application for surrender and the date fixed for his appearance in the Court. The concerned Court may direct the Public Prosecutor to obtain instructions from the investigating officer by the date fixed and thereafter dispose of the bail application at the earliest in accordance with the decision in Amarawati's case. It will also be open for the Court concerned to release the petitioner on interim bail in an appropriate case on such terms and conditions that the concerned Court deems fit and proper till the next date of hearing of the bail application, if the hearing of the case is adjourned or the Court for any reason is not in a position to finally dispose of the bail application on that day, or some further instructions are needed.

It is made clear that the order granting interim bail pending hearing of a regular bail application may be passed in appropriate cases, but it ought not to be passed where:

(i) The case involves a grave offence like murder, dacoity, robbery, rape etc., and it is necessary to arrest the accused and bring his movements under restraint to infuse confidence among the terror stricken victims and society at large and for protecting witnesses.
(ii)The case involves an offence under the U.P. Gangsters Act and in similar statutory provisions
(iii) The accused is likely to abscond and evade the processes of law.
(iv) The accused is given to violent behaviour and is likely to commit further offences unless his movements are brought under restraint.
(v) The accused is a habitual offender and unless kept in custody he is likely to commit similar offences again.
(vi) The offence is in the nature of a scam, or there is an apprehension that there may be interference with the investigation or for any other reason the Magistrate / Competent Court feels that it is not a fit case for releasing the appellant on interim bail pending the hearing of the regular bail.
(vii) An order of interim bail can also not be passed by a Magistrate who is not empowered to grant regular bail in offences punishable with death or imprisonment for life or under the other circumstances enumerated in section 437 Cr.P.C.
(viii) If the Public Prosecutor/ investigating officer can satisfy the Magistrate/ Court concerned that there is a bona fide need for custodial interrogation of the accused regarding various facets of motive, preparation, commission and aftermath of the crime and the connection of other persons, if any, in the crime, or for obtaining information leading to discovery of material facts, it may constitute a valid ground for not granting interim bail, and the Court in such circumstances may pass orders for custodial interrogation, or any other appropriate order.

These directions are necessary as the need to grant plenary powers to the police to investigate and unravel the circumstances of a crime are as important as the need to protect a respectable person from being unnecessarily sent to jail or for restraining the police from taking persons in custody for minor isolated offences where it may strictly not be necessary for the police to arrest an accused at the stage of investigation.
It is expected that in all cases where the Magistrate is not restrained from granting bail under section 437 Cr.P.C, where an accused moves an application for consideration of his prayer for bail through his counsel, even without orders of the High Court, the Magistrate may fix a convenient date for the appearance of the accused, and direct the Public Prosecutor to seek instructions from the investigating officer in the meanwhile. Between the date of moving of the surrender application and the date fixed for appearance of the accused by the Magistrate, the accused may not be arrested without permission of the Court concerned. In case the Magistrate is not in a position to finally dispose of the bail on the date fixed, he may consider releasing the appellant on interim bail till the date of final hearing of the bail application in the light of the observations hereinabove. This direction is needed to prevent all accused persons whose cases do not fall within the interdict of section 437 Cr.P.C. rushing to this Court seeking protection, and for this Court having to pass orders in each individual case, creating a huge back log of criminal writ petitions, which then engage the attention of a number of benches, and come in the way of disposal of the large number of pending division bench murder and other appeals.
With these observations the petition is disposed of.
Copy of this order may be circulated to all District Judges for communication to all subordinate Courts, so that the directions given by the Apex Court in Lal Kamlendra Pratap Singh v. State of U.P., the Full Bench in Amarawati and hereinabove may be followed by all subordinate Courts in letter and spirit.”

37. Grinding and mixing of spices - whether manufacturing ?

In the case of M/s A.P.Products v. State ofAndhra Pradesh and others, JT 2007 (9) SC 58. the Apex Court after considering various decisions on the issue as to what is processing and what is manufacturing, has held that the ingredients which are used in preparation of masala after grinding and mixing, lose their own identity and character and a new product separately known to the commerical world comes into existence. Since separate commercial commodities emerges into existence, they become separaely taxable goods or entities for the purpose of sales tax.
In the case of Deputy Commissioner of Sales Tax (Law), Board of Revenue (Taxes), Ernakulam v. M/s PIO Food Packers, 1980 Supp (1) SCC 174, the Apex Court held that "Manufacture implies a change, but every change is not manufacture, and yet every change in an article is the result of treatment, labour and manipulation. But something more is necessary. There must be transformation; a new and different article must emerge, having a distinctive name, character or use.

In Deputy Commercial Tax Officer and another v. Mvelmurugan, STI 2000 Supreme Court 175, the Apex Court found that the assessee had merely mixed the ingredients for the facility of the consumers and such mixture of ingredients did not bring into existence any new commodity.

Before Allahabad High Court, in WRIT TAX No. 1166 of 2003., M/S Ashoka Food & De-Hydred Sansthan Vs. State Of U.P. & Others,
the petitioner apart from being engaged in the activities of trading various spices, such as Ajwain, Kalauji, Jeera, Raee, is also engaged in purchase of naturally grown spices and after grinding the same, was mixing with other spices and selling them. Such spices which are being sold by the petitioner, were Garam Masala, Chat Masala, Sabji Masala, Meat Masala etc. The question was whether these spices which the petitioner was obtainning as a result of mixing and grinding of various spices in different proportion, can be said to be a process of manufacture or simply processing. Applying the test laid down by the Apex Court in the aforesaid case, the Division Bench (Hon. R.K.Agrawal and Hon. Vikram Nath, JJ.) held that as a result of the process undertaken by the petitioner, a new and different article has emerged, which is entirely different from the natural grown spices. Thus, the petitioner is a manufacturer of such spices, namely, Garam Masala, Chat Masala, Sabji Masala, Meat Masala etc. and it cannot be said that the activities undertaken by the petitioner amounts to simply processing of spices.

Their lordships held observed that the petitioner not only mixes various spices but also uses the process of grinding them and making an entirely new commercial commodity, for example, Garam Masala, Chat Masala, Sabji Masala, Meat Masala etc. It is not for the facility of the customers. The Court held that the view adopted by Allahabad High Court in Commissioner, Sales Tax v. Ashok Grah Udyog Kendra (P) Ltd., 2004 NTN (25) 702 (Allahabad) that grinding spices and condiment and mixing them would not amount to manufacture as no new commodity in common parlance has come into existence, cannot be said to be a good law as it is contrary to the view taken in the latest decision of the Apex Court in the case of M/s A.P.Products (supra).

36. Further cross examination - only on specified question

In Criminal Misc. Application no. 4214 of 2007
Khalid Ahmad Khan v. State of U.P. and another an application was moved by new counsel for recalling P.W.1 Khalid Ahmad Khan for further cross examination on the ground that on the date when the statement of Khalid Ahmad Khan was recorded, some other counsel had cross examined Khalid Ahmad and he has now been engaged by Naushad as his counsel, and after perusal of the statement of Khalid Ahmad Khan he was of the view that it was necessary to put some questions to Khalid Ahmad Khan and so Khalid Ahmad Khan should be recalled for cross examination. This application was allowed by the learned Judge. Aggrieved with that order P.W.1 Khalid Ahmad Khan filed an application under section 482 Cr.P.C.

Quashing the order of sessions Judge, the High Court held that “The application for further cross examination of the applicant was moved by his new counsel on 21.2.2007 in which he stated that some important questions could not be asked from P.W.1 and so he ( P.W. 1 ) should be recalled for further cross examination. I am of the view that when the accused had sufficient opportunity to cross examine the witness and they had availed that opportunity the witness could not be recalled for further cross examination. At the most the learned counsel for the accused, if he was of the view that certain important questions had not been put to P.W.1 during the course of cross examination, could have sought permission from the court to put those questions to the witness after specifying those questions in his application, but he did not do so. Under these circumstances, the prayer made by him for further cross examination of the witness who had already been sufficiently cross examined was not maintainable and the learned trial Court has legally erred by allowing that application.”

In Criminal Misc. Application No. 11728 of 2007
Awinesh Vs. State of U..P. and another, application for further cross examination was rejected by the trial court. The first question specified in the application was that he has to put some questions regarding the site plan and the second question is that he has to ask some questions regarding Rifle of the deceased which was allegedly carried by the informant with him. Dismissing the application under s 482 CrPC, the High Court held that both these questions are vague. When a witness has been examined and cross examined, then if any question could not be put to him during the course of cross examination , the only remedy open under law is to clearly specify the question which is to be put and seek permission of the court concerned for putting that question to the witness, and if the court is of the view that the question is relevant and had not been put at the previous stage in the course of cross examination, he may permit the party to ask the question. In the present case the questions to be asked have not been specified and there is a vague prayer that some questions are to be put in regard to the site plan and the Rifle . Such an application was rightly rejected by the learned Special Judge .
However, the court directed that if the applicant makes a fresh application clearly specifying the actual questions in verbatim which are to be put to the witness , then that application may be considered by the trial court, and if the court is of the view that those questions had not been put to the witness earlier and that they are relevant for just decision of the case, suitable orders may be passed on that application .

35. Court Management and good administration

This article is reproduction of views of Hon. Yatindra Singh,J (Allahabad High Court) while passing interim order in WRIT - A No. 16879 of 1999, Net Singh Vs. Labour Secy., U.P. Shasan Lko. & Others. Where his lordship observed that:

“ The pressure upon the modern judges----at first instance and on appeal--is, in most instance much grater than it was in case of their forebears. And we have one of the lowest number of judges per million of population in the world. And many of our vacancies are not filled up. We are at present working at half of our sanctioned strength. The court management and good administration are more relevant today than ever.

Court Management:

Here the service of more than 1000 employees were terminated in terms of the GO dated 12.2.1999 and the decision of the Parishad dated 9.3.1999. While terminating their services, the procedure indicated in the GO dated 12.2.1999 was followed. The basic questions in all the writ petitions are same. This was argued at different time before different judges with different results. Was it not better that these cases were consolidated and heard by one judge. Many object to it: this takes away variety of views; difference in opinion. But we have to consider the time constraint; lakhs of cases are pending; there are no judges to hear them. They ought to have been consolidated and dealt by one Judge. If there was any mistake it can always be corrected by the appellate court.

Apart from it, if these cases were consolidated and heard together, this would have led to--better understanding of the problem; saving time, efforts, and finance. This would have saved some embarrassment and anxiety--among the lawyers, as well as the litigants. Many appointed subsequently are working but those appointed earlier so to speak are still on the road. We should evolve a procedure to track these cases and decide them together.
Classification of cases was started in this court in 1978-79. It was done manually and now is being done through computer. A code is allotted and fed at the time when cases are filed. Old cases have been codified to a large extent, though it is not complete. We can find out cases in one category that is cases of Ad hoc employees who were in service of a local body, or Corporation, or the State Government. But this kind of grouping to find out the writ petitions of the terminated employees in view of the GO (as in these seven writ petitions) is not possible; at least not with the computerisation that we have today. We have classification Section with few judicial officers. They look into each file and categorise old cases. They perhaps could do it, but they have their limitations. And finding a few hundred cases from lakhs of cases perhaps may not be worthwhile. We should have better methods to track them.

One method is to seek more information in a pro-forma from lawyers to be fed in the computers. This additional information may help us in clubbing cases of similar nature. But lawyers have to co-operate too. I have no reason to doubt that they will not. They are as much part of this court as we are. They are equally keen to solve arrears and other problems of this court. We have to solve them together. There are few other options.

The terminated employees have engaged different counsels. It is difficult for them or their counsels to give details of these cases but contesting respondent in all these cases is the Director of the Parishad. He has knowledge about these cases. Notices have been issued and reply has to be filed in these cases. His office could have sorted out all these cases and given a list to its counsel for information to the court. Then these cases could have been decided together.

The State Government or its Departments or its agencies or the Corporations (like the Parishad) are the biggest litigants in this court. This kind of sorting could be better managed at their level. The State Government or the different departments already have legal officers. If they don't, then they may have a litigation in-charge to look after these matters. They can easily supply such lists to the court through their counsels so that cases may be decided together. This will not only save the time of the court but the time and finances of the State Government and its departments. This court and the State Government, its departments and agencies may consider improving communication between classification and Computer section of the High Court and legal cell of the State government and its departments to track these cases.

We have work force. We have judicial officers; well trained for judicial work but not for court management. It is still dormant and does not appeal to many. We still think that our job is to decide cases and not to manage them. But if we wish to reduce arrears then this attitude has to change. If one has to cut a tree in eight hours one does not have to chop it constantly for eight hours. One has to spend time to sharpen ones axe. It is equally important. But where one can find material for it.

We have good material available. There are reports of different committees for reducing the arrears. The report of the arrears committee 1989-1990 constituted by the Government of India on the recommendation of the Chief Justices' Conference is a good 'source material'. This is to be implemented and staff to be trained. We do have Judicial Training Institute; Court management may be compulsory part of judicial officer training. No one may be appointed, or promoted unless he has gone through training in court management. Merely training is not sufficient. It is to be constantly practised.

Good Administration:

While we are discussing about court management and talking about appointing law officers or litigation in-charge, I would like to point out on few other things. Many of the writ petitions are entertained because of mal-administration; and many others can be easily avoided with some effort.
There are few fundamentals for good administration.
(i)Decision may be taken only after affording opportunity to the concerned parties.
(ii)If controversy is similar or affects many persons then the claims may be decided together rather than separately.
(iii)The officer passing the order should have authority to pass the order.
(iv)There should be reasons for taking the decision. It restricts arbitrariness.
(v)Decision be taken within reasonable time and communicated to the party concerned.

It is not only important that previously mentioned points are practised but also they should appear from the order that they were followed in any particular case. These points may have been followed--yet, writ petitions are entertained as at the time of exparte motions the court has an order that does not indicate it. And the State machinery is too slow in getting instructions--for various reasons. It would be better if every order indicates at least following things:

(i)How effected parties were afforded opportunity?

(ii)The source of power (details of Sections or rules or regulations if it is taken under any such provision).

(iii)Brief reasons for taking the decision. In case only brief reasons are given and there are detailed reasons elsewhere then it may also be indicated in the order that they can be provided on request on payment of reasonable fee.

(iv)The details of statutory remedy, if any, available against the decision. “

34. Remedy in absence of review power

Criminal courts have no inherent powers as compared to civil courts which has been conferred to set aside ex parte judgment or order and to review its own order under the provisions of C.P.C. There is no such corresponding provision in the Cr.P.C. On the other hand, section 362 Cr. P.C. clearly bars the court to alter or review its judgment or final order except to correct a clerical or arithmetical error. What is clerical or arithmetical error has been explained by Hon'ble Apex Court in the case of 'Master Constructions Company Pvt. Ltd. Vs. State of Orissa' AIR 1966 SC 1047 and it has been held that arithmetical error is a mistake of calculation and a clerical error is mistake in writing or typing. In the present case, the impugned order does not suffer from any arithmetical error or clerical error. On the other hand, case of the applicant is that her counsel could not appear to argue the case on the date fixed because his name was wrongly printed in the cause list as Vinod Kumar Srivastava in place of Vinod Kumar Sharma. It may, however, be mentioned that the revision was not dismissed in default as there is no provision for dismissal of the criminal revision in default and it was decided on merits holding that the order passed by the Addl. Sessions Judge for treating the application under section 156(3) Cr.P.C. as a complaint was justified. Now the question is whether this Court can recall or review its above judgment in view of the clear bar under section 362 Cr.P.C.

In the case of 'Sankatha Singh and others Vs. State of Uttar Pradesh' A.I.R. 1962 S.C. 1208 the facts were that the accused had filed an appeal before the Sessions Judge against the conviction order, and on the date fixed for hearing of that appeal, none appeared for the accused appellants. Then the learned Sessions Judge dismissed the appeal on merits. Thereafter the accused moved an application for setting aside that order on the ground that their counsel could not appear to argue the case and so the order dismissing the appeal should be set aside and an opportunity should be provided to the appellant to argue the appeal. This application was allowed by the Sessions Judge who had earlier dismissed the appeal. However, before the appeal could be taken up for hearing, that Sessions Judge was transferred, and in his place another Sessions Judge took over charge. When the appeal came up before him for hearing, he was of the view that his predecessor had no right under the provisions of the Cr.P.C. to set aside the earlier order of dismissal of the appeal, and so the order passed by him for rehearing of the appeal was without jurisdiction. He, therefore, maintained the earlier order of dismissal of the appeal passed by his predecessor, and refused to re-hear the appeal. Aggrieved with that order, the accused challenged it before the High Court but the High Court approved the view taken by the Sessions Judge that the earlier order of dismissal of the appeal could not be reviewed. Then the accused went to the Hon'ble Supreme Court and the Supreme Court dismissing the appeal observed that the appellate court has no power to review or restore an appeal which has been disposed of and so the Sessions Judge could not set aside his earlier order dismissing the appeal when neither the appellants nor their counsel had appeared, and could not order for rehearing of the appeal. It was further held that section 369 read with section 424 of the Code (old Cr.P.C.) make it clear that the appellate Court is not to alter or review the judgment once signed, except for the purpose of correcting a clerical error. It was also held that even assuming that the Sessions Judge can exercise inherent powers, he cannot pass the order for re-hearing of the appeal in exercise of such powers when Section 369 read with section 424 of the Code (old Cr.P.C. ) specifically prohibit the altering or reviewing of its order by the Court and that inherent powers cannot be exercised to do what the Code specifically prohibits the Court from doing.

Minu Kumari and Anr. v. State of Bihar and Ors. AIR 1986 SC 1937

Cognizance of offence was taken by Magistrate against applicant-accused though charge-sheet was not filed against accused and police did not find any material against them. No indication that Magistrate disagreed with opinion of investigating agency and, therefore, ordered issuance of summons . The Magistrate had issued process against applicants without following procedure and order also passed against them. Application for recall of order on ground that it was clerical mistake was allowed and order striking names of applicants was passed. Appeal against that order was allowed on the ground that Magistrate had no power to review its order. Application under S. 482 before High Court against appellate order was also rejected on ground that Subordinate Court could not recall its own order under S. 362. Setting aside the order of High Court, the Supreme Court held that :

“Section 362 of the Code, as noted above, permits correctness of clerical or arithmetical errors. There is no quarrel with that proposition. But the High Court seems to have completely lost sight of the scope and ambit of Section 482 of the Code.

18. The Section does not confer any new power on the High Court. It only saves the inherent power which the Court possessed before the enactment of the Code. It envisages three circumstances under which the inherent jurisdiction may be exercised, namely, (i) to give effect to an order under the Code, (ii) to prevent abuse of the process of court, and (iii) to otherwise secure the ends of justice. It is neither possible nor desirable to lay down any inflexible rule which would govern the exercise of inherent jurisdiction. No legislative enactment dealing with procedure can provide for all cases that may possibly arise. Courts, therefore, have inherent powers apart from express provisions of law which are necessary for proper discharge of functions and duties imposed upon them by law. That is the doctrine which finds expression in the section which merely recognizes and preserves inherent powers of the High Courts. All courts, whether civil or criminal possess, in the absence of any express provision, as inherent in their constitution, all such powers as are necessary to do the right and to undo a wrong in course of administration of justice on the principle "quando lex aliquid alicui concedit, concedere videtur et id sine quo res ipsae esse non potest" (when the law gives a person anything it gives him that without which it cannot exist). While exercising powers under the section, the court does not function as a court of appeal or revision. Inherent jurisdiction under the section though wide has to be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid down in the section itself. It is to be exercised ex debito justitiae to do real and substantial justice for the administration of which alone courts exist. Authority of the court exists for advancement of justice and if any attempt is made to abuse that authority so as to produce injustice, the court has power to prevent abuse. It would be an abuse of process of the court to allow any action which would result in injustice and prevent promotion of justice. In exercise of the powers court would be justified to quash any proceeding if it finds that initiation/continuance of it amounts to abuse of the process of court or quashing of these proceedings would otherwise serve the ends of justice.”

The Full Bench of Supreme Court held in Adalat Prasad v. Rooplal Jindal AIR 2004 SC 4674 : 2004 AIR SCW 5174 , and reaffirmed in Subramanium Sethuraman, v. State of Maharashtra and another, AIR 2004 SC 4711, that the only remedy available to an aggrieved person (in these cases accused against summoning order) to challenge an order in an interlocutory stage is the extraordinary remedy under Section 482 of the Code and not by way of an application to recall of orders, where impugned order is not covered by s. 362.

(see also, Criminal Revision no. 966 of 2003 Smt. Gayatri Misra v.
State of U.P. and others).

33. clerical and arithmetical error

Section 362 Cr. P.C. clearly bars the court to alter or review its judgment or final order except to correct a clerical or arithmetical error. What is clerical or arithmetical error has been explained by Hon'ble Apex Court in the case of 'Master Constructions Company Pvt. Ltd. Vs. State of Orissa' AIR 1966 SC 1047 and it has been held that arithmetical error is a mistake of calculation and a clerical error is mistake in writing or typing. In the present case, the impugned order does not suffer from any arithmetical error or clerical error. On the other hand, case of the applicant is that her counsel could not appear to argue the case on the date fixed because his name was wrongly printed in the cause list as Vinod Kumar Srivastava in place of Vinod Kumar Sharma. It may, however, be mentioned that the revision was not dismissed in default as there is no provision for dismissal of the criminal revision in default and it was decided on merits holding that the order passed by the Addl. Sessions Judge for treating the application under section 156(3) Cr.P.C. as a complaint was justified. Now the question is whether this Court can recall or review its above judgment in view of the clear bar under section 362 Cr.P.C.

In the case of 'Sankatha Singh and others Vs. State of Uttar Pradesh' A.I.R. 1962 S.C. 1208 the facts were that the accused had filed an appeal before the Sessions Judge against the conviction order, and on the date fixed for hearing of that appeal, none appeared for the accused appellants. Then the learned Sessions Judge dismissed the appeal on merits. Thereafter the accused moved an application for setting aside that order on the ground that their counsel could not appear to argue the case and so the order dismissing the appeal should be set aside and an opportunity should be provided to the appellant to argue the appeal. This application was allowed by the Sessions Judge who had earlier dismissed the appeal. However, before the appeal could be taken up for hearing, that Sessions Judge was transferred, and in his place another Sessions Judge took over charge. When the appeal came up before him for hearing, he was of the view that his predecessor had no right under the provisions of the Cr.P.C. to set aside the earlier order of dismissal of the appeal, and so the order passed by him for rehearing of the appeal was without jurisdiction. He, therefore, maintained the earlier order of dismissal of the appeal passed by his predecessor, and refused to re-hear the appeal. Aggrieved with that order, the accused challenged it before the High Court but the High Court approved the view taken by the Sessions Judge that the earlier order of dismissal of the appeal could not be reviewed. Then the accused went to the Hon'ble Supreme Court and the Supreme Court dismissing the appeal observed that the appellate court has no power to review or restore an appeal which has been disposed of and so the Sessions Judge could not set aside his earlier order dismissing the appeal when neither the appellants nor their counsel had appeared, and could not order for rehearing of the appeal. It was further held that section 369 read with section 424 of the Code (old Cr.P.C.) make it clear that the appellate Court is not to alter or review the judgment once signed, except for the purpose of correcting a clerical error. It was also held that even assuming that the Sessions Judge can exercise inherent powers, he cannot pass the order for re-hearing of the appeal in exercise of such powers when Section 369 read with section 424 of the Code (old Cr.P.C. ) specifically prohibit the altering or reviewing of its order by the Court and that inherent powers cannot be exercised to do what the Code specifically prohibits the Court from doing.

32. Inclusion in select list - No right to appointment

In Shankarasan Dash v. Union of India, (1991) 2 SCR 567 : (1991 AIR SCW 1583), a Constitution Bench had held that mere inclusion of the name in the list of selected candidates does not confer any right upon any candidate to be selected unless the relevant rules so indicate. In Babita Prasad v. State of Bihar, 1993 Supp (3) SCC 268, though the life of the panel was not prescribed, it was directed to be confined to a reasonable time. A long waiting list cannot be kept in infinitum in view of the principle "infinitum in jure reprobatur". A distinction can be made for the purpose of appointment between those who have already been appointed and those who are in the waiting list or had undergone training and waiting for appointment. It cannot be treated as arbitrary. It was held that the panel was too long and was intended to last indefinitely barring the future generations for decades for being considered for the vacancies arising much later. In fact, the future generations would have been kept out for a very long period, if the panel would have been permitted to remain effective till it got exhausted. A panel of that type cannot be equated with a panel which is prepared having correlation to the existing vacancies or anticipated vacancies arising in the near future.

In Union Territory of Chandigarh v. Dilbagh Singh, (1993) 1 SCC 154 : (1992 AIR SCW 3263), it was held that a candidate whose name finds place in the select list for appointment to a civil post does not acquire an indefeasible right to be appointed in such post in the absence of any specific rule entitling him for such appointment and he could be aggrieved by his non-appointment only when the Administration does so either arbitrarily or for no bona fide or valid reason.

In Nagar Mahapalika, Kanpur v. Vinod Kumar Srivastava, AIR 1987 SC 847, it was observed that the reason underlying the limitation of the period of life of waiting list for one year is obviously to ensure that other qualified persons are not deprived of their chances of applying for the posts in the succeeding years and being selected for appointment.

In State of Haryana v. Subash Chander Narwaha, (1974) 1 SCR 165 : (AIR 1973 SC 2216), this Court had held that though vacancies were existing selected candidates had no right to the appointment. It would be open to the Government not to appoint the candidates from the list for valid reasons.

In State of Bihar v. Secretariat Assistant Successful Examinees Union 1986, (1994) 1 SCC 126 : (1994 Lab IC 573), the Supreme Court had held that a person having been selected, does not, on account of being empanelled alone, acquire any indefeasible right to appointment. Empanelment is, at the best, a condition of eligibility for purposes of appointment and by itself does not amount to selection or creating right to be appointed unless relevant rules state to the contrary. In that case, select list was prepared on the basis of merit in the examination without any qualifying marks. All the persons who wrote the examination were ranked in the merit list. They claimed the right to get appointment contending that till the list was exhausted, no fresh list could be prepared and that they were entitled to the appointment. The conteition was negatived and it was held that there is no provision in the relevant rules giving indefeasible right to the persons whose names appeared in the list to get appointed. There is no provision under the Rules prohibiting authorities to fix the time limit.

In Dr. M. A. Haque v. Union ofIndia, (1993) 2 SCC 213, the Supreme Court held that recruitment rules made under Article 309 of the Constitution have to be followed strictly and not in its breach. If disregard of the rules and the by passing of the Public Service Commissions are permitted, it will be open a backdoor for illegal recruitment without limit. Recruitment rules should be strictly followed and the Public Service Commission cannot keep the rules in cold storage. It was, therefore, held relying on the above ratio that since existing list was closed and recruitment was made through Public Service Commission, the petitioner has no right to that post.

All above decisions were considered and followed in N. Mohanan v. State of Kerala AIR 1997 SC1896 and it was held that mere inclusion of name in list of selected candidates does not confer any right on candidate to be appointed. The Supreme court rejected the plea of petitioner that existing vacancies should be filed up from the select list .

31. Approbate and Reprobate

Ordinarily, a court would not interfere with the findings of the Enquiry Officer. He is entitled to draw his own inference and so long as the inference drawn by him is supported by some materials on record, it is well settled that a Court of judicial review would not interfere therewith.

Despite limited jurisdiction, a Civil Court is entitled to interfere in a case where the report of the Enquiry Officer is based on no evidence. In a suit filed by a delinquent employee in a civil Court as also a writ Court, in the event the findings arrived at in the departmental proceedings are questioned, it, should keep in mind the following :

(1) The Enquiry Officer is not permitted to collect any material from outside sources during the conduct of the enquiry.

(2) In a domestic enquiry fairness in the procedure is a part of the principles of natural justice.

(3) Exercise of discretionary power involve two elements - (i) Objective and (ii) subjective and existence of the exercise of an objective element is a condition precedent for exercise of the subjective element.

(4) It is not possible to lay down any rigid rules of the principles of natural justice which depends on the facts and circumstances of each case but the concept of fair play in action is the basis.

(5) The Enquiry Officer is not permitted to travel beyond the charges and any punishment imposed on the basis of a finding which was not the subject-matter of the charges is wholly illegal.

(6) Suspicion or presumption cannot take the place of proof even in a domestic enquiry. The writ Court is entitled to interfere with the findings of the fact of any tribunal or authority in certain circumstances.

(see, Narinder Mohan Arya v. United India Insurance Co. Ltd. and Ors AIR 2006 SC1448, S.B. Sinha and Dalveer Bhandari, JJ. )

30. Judicial review of departmental proceedings

Ordinarily, a court would not interfere with the findings of the Enquiry Officer. He is entitled to draw his own inference and so long as the inference drawn by him is supported by some materials on record, it is well settled that a Court of judicial review would not interfere therewith.

Despite limited jurisdiction, a Civil Court is entitled to interfere in a case where the report of the Enquiry Officer is based on no evidence. In a suit filed by a delinquent employee in a civil Court as also a writ Court, in the event the findings arrived at in the departmental proceedings are questioned, it, should keep in mind the following :

(1) The Enquiry Officer is not permitted to collect any material from outside sources during the conduct of the enquiry.

(2) In a domestic enquiry fairness in the procedure is a part of the principles of natural justice.

(3) Exercise of discretionary power involve two elements - (i) Objective and (ii) subjective and existence of the exercise of an objective element is a condition precedent for exercise of the subjective element.

(4) It is not possible to lay down any rigid rules of the principles of natural justice which depends on the facts and circumstances of each case but the concept of fair play in action is the basis.

(5) The Enquiry Officer is not permitted to travel beyond the charges and any punishment imposed on the basis of a finding which was not the subject-matter of the charges is wholly illegal.

(6) Suspicion or presumption cannot take the place of proof even in a domestic enquiry. The writ Court is entitled to interfere with the findings of the fact of any tribunal or authority in certain circumstances.

(see, Narinder Mohan Arya v. United India Insurance Co. Ltd. and Ors AIR 2006 SC1448, S.B. Sinha and Dalveer Bhandari, JJ. )

29. Tolerance is foundation of marriage but...

In Naveen Kohli v. Neelu Kohli[1] His Lordship Hon. Dalveer Bhandari, J said : The foundation of a sound marriage is tolerance, adjustment and respecting one another. Tolerance to each other's fault to a certain bearable extent has to be inherent in every marriage. Petty quibbles, trifling differences should not be exaggerated and magnified to destroy what is said to have been made in heaven. All quarrels must be weighed from that point of view in determining what constitutes cruelty in each particular case and as noted above, always keeping in view the physical and mental conditions of the parties, their character and social status. A too technical and hypersensitive approach would be counter productive to the institution of marriage. The Courts do not have to deal with ideal husbands and ideal wives. It has to deal with particular man and woman before it.

His lordship held that to constitute cruelty under s 13 of the Hindu Marriage Act, the conduct complained of should be 'grave and weighty' so as to come to the conclusion that the petitioner spouse cannot be reasonably expected to live with the other spouse. It must be something more serious than 'ordinary wear and tear of married life.' The conduct taking into consideration the circumstances and background has to be examined to reach the conclusion whether the conduct complained of amounts to cruelty in the matrimonial law. Conduct has to be considered, in the background of several factors such as social status of parties, their education, physical and mental conditions, customs and traditions. It is difficult to lay down a precise definition or to give exhaustive description of the circumstances, which would constitute cruelty. It must be of the type as to satisfy the conscience of the Court that the relationship between the parties had deteriorated to such extent due to the conduct of the other spouse that it would be impossible for them to live together without mental agony, torture or distress, to entitle the complaining spouse to secure divorce. Physical violence is not absolutely essential to constitute cruelty and a consistent course of conduct inflicting immeasurable mental agony and torture may well constitute cruelty. The Court dealing with the petition for divorce on the ground of cruelty has to bear in mind that the problems before it are those of human beings and the psychological changes in a spouse's conduct have to be borne in mind before disposing of the petition for divorce. However, insignificant or trifling, such conduct may cause pain in the mind of another. But before the conduct can be called cruelty, it must touch a certain pitch of severity. It is for the Court to weigh the gravity. It has to be seen whether the conduct was such that no reasonable person would tolerate it. It has to be considered whether the complainant should be called upon to endure as a part of normal human life. Every matrimonial conduct, which may cause annoyance to the other, may not amount to cruelty.

Recommending to Union of India to seriously consider bringing an amendment in Hindu Marriage Act to incorporate irretrievable break down of marriage as a ground for grant of divorce, his Lordship said that a law of divorce based mainly on fault is inadequate to deal with a broken marriage. Under the fault theory, guilt has to be proved; divorce Courts are presented concrete instances of human behaviour as bring the institution of marriage into disrepute. Once the marriage has broken down beyond repair, it would be unrealistic for the law not to take notice of that fact, and it would be harmful to society and injurious to the interest of the parties. Where there has been a long period of continuous separation, it may fairly be surmised that the matrimonial bond is beyond repair. The marriage becomes a fiction, though supported by a legal tie. By refusing to sever that tie the law in such cases does not serve the sanctity of marriage; on the contrary, it shows scant regard for the feelings and emotions of the parties. Public interest demands not only

The married status should, as far as possible, as long as possible, and whenever possible, be maintained, but where a marriage has been wrecked beyond the hope of salvage, public interest lies in the recognition of that fact. Since there is no acceptable way in which a spouse can be compelled to resume life with the consort, nothing is gained by trying to keep the parties tied for ever to a marriage that in fact has ceased to exist. Human life has a short span and situations causing misery cannot be allowed to continue indefinitely. A halt has to be called at some stage. Law cannot turn a blind eye to such situations, nor can it decline to give adequate response to the necessities arising there from.

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[1] AIR 2006 SC 1675

28. Standard of proof u/s 304B vis a vis 306, IPC

Relevant provisions of the Evidence Act are as under:

"113-A. Presumption as to abetment of suicide by a married woman.- When the question is whether the commission of suicide by a woman had been abetment by her husband or any relative of her husband and it is shown that she had committed suicide within a period of seven years from the date of her marriage and that her husband or such relative of her husband had subjected her to cruelty, the Court may presume, having regard to all the other circumstances of the case, that such suicide had been abetted by her husband or by such relative of her husband.

113-B. Presumption as to dowry death.- When the question is whether a person has committed the dowry death of a woman and it is shown that soon before her death such woman has been subjected by such person to cruelty or harassment for, or in connection with, any demand for dowry, the Court shall presume that such person had caused the dowry death. "

In CRIMINAL APPEAL NO...337/2009 ANAND KUMAR v. STATE OF M.P, decided by apex court (Hon. Dalveer Bhandari and Hon. H.S. Bedi, JJ) on 20/02/2009, a newly married woman, within 45 days of her Gauna consumed had sulphas and died. A case under Section 498 A and 306 of the IPC and Section 4 of the Dowry Prohibition Act was registered. The Naib Tehsildar-cum-Executive Magistrate concerned was called by the doctor who recorded her dying declaration. Other accused except her husband/appellant were acquitted and appellant was convicted on the basis of a letter allegedly written by him to his father in law. His father in law stated in his examination in chief that:

"I had received letter of threat from accused Anand Kumar on 27.02.86 through Peon Achchhe Lal and that letter is exhibit P20. He had raised the demand for radio, watch, cycle and fan through that letter, at the time of gauna, I had given him watch, radio, cycle and fan as demanded in the letter."

The Supreme Court observed that: “We are of the opinion that this excerpt from his evidence cannot be said to be proof of the document as no statement was made that he recognized the handwriting or the signature of the appellant. Moreover, this letter had not been produced before the police during the course of the initial investigation and had been handed over to the police after several months. This fact, as also a reading of the letter, indicates that this was a concocted piece of evidence and the work of a legal mind, as no person would write such a letter meeting all legal requirements for implicating himself and his near relatives, in a claim for Dowry.”

Allowing the appeal the Court held that, the different terminology of Sections 113-A and 113-B itself brings out the real purpose behind the two provisions and whereas Section 113-B places a heavier onus on an accused, the onus placed under Section 113-A is far lighter. A comparative reading of the two provisions would highlight that under Section 113-A the Court `may presume', having regard to all the other circumstances of the case, an abetment of suicide as visualized by Section 306 of the IPC but in Section 113-B which is relatable to Section 304-B the word `may' has been substituted by `shall' and there is no reference to the circumstances of the case. Admittedly, the conviction of the appellant has been recorded under Section 306 which is relatable to Section 113-A and though the presumption against an accused has to be raised therein as well, the onus is not as heavy as in the case of a dowry death.

27. Market value for acquired land

In CIVIL APPEAL NO.3332 OF 2001 T.S. Ramachandra Shetty v. Chairman, Karnataka Housing Board& Another[i], the appellant had purchased only an year ago, the that very piece of land for Rs.45,000/- and after an year, the State had given compensation of Rs.1,30,680/-. Speaking for the bench his Lordship Hon. Dalveer Bhandari, J held that the compensation amount cannot be said to be inadequate by any stretch of imagination. After making elaborate discussion of case Law, the court emphasized that a recent sale deed is the best evidence of market value of the acquired land.

In Bangaru Narasingha Rao Naidu & Ors.v. Revenue Divisional Officer, Vizianagaram[ii] the Supreme Court observed that the best evidence of the market value of the acquired land is afforded by transactions of sale in respect of the very acquired land.

In Special Tehsildar Land Acquisition, Vishakapatnam v. A. Mangala Gowri[iii], the Supreme Court observed as under: “The market value postulated in Section 23(1) of the Act designed to award just and fair compensation for the lands acquired. The word “market value” would postulate price of the land prevailing on the date of the publication of the notification under Section 4(1).The acid test that for determining the market value of the land, the price which a willing vendor might reasonably expect to obtain from a willing purchaser would form the basis to fix the market value. For ascertaining the market rate, the Court can rely upon such transactions which would offer a reasonable basis to fix the price. The price paid in sale or purchase of the land acquired within a reasonable time from the date of the acquisition of the land in question would be the best piece of evidence. In its absence the price paid for a land possessing similar advantages to the land in the neighbourhood of the land acquired in or about the time of the notification would supply the data to assess the market value. But exclusion of bona fide and genuine sale transactions in respect of the same land under acquisition and to place reliance on the award of some other land is obviously illegal.

In Periyar and Pareekanni Rubbers Ltd. v. State of Kerala[iv],the Supreme Court observed as under: “..When the Courts are called upon to fix the market value of the land in compulsory acquisition, the best evidence of the value of property is the sale of the acquired land to which the claimant himself is a party, in its absence the sales of the neighbouring lands. In proof of the sale transaction, the relationship of the parties to the transaction, the market conditions, the terms of the sale and the date of the sale are to be looked into. These features would be established by examining either the vendor or vendee and if they are not available, the attesting witnesses who have personal knowledge of the transaction etc. The original sale deed or certified copy thereof should be tendered as evidence. The underlying principle to fix a fair market value with reference to comparable sales is to reduce the element of speculation. In a comparable sale the features are: (1) it must be within a reasonable time of the date of the notification; (2) it should be a bona fide transaction; (3) it should be a sale of the land acquired or land adjacent to the land acquired and (4) it should possess similar advantages. These should be established by adduction of material evidence by examining as stated above the parties to the sale or persons having personal knowledge of the sale transactions. The proof also would focus on the fact whether the transactions are genuine and bona fide transactions.”

In Printers House Pvt. Ltd. v. Cold Storage and Food Products and Ors,[v] the Supreme Court dealt with the similar proposition that the sale price of the acquired land is an important factor for determining the compensation.

In Ranvir Singh and Another v. Union of India[vi] the Supreme Court reiterated the well settled principle that the sale deeds pertaining to the portion of lands which are subject to acquisition would be the most relevant piece of evidence for assessing the market value of the acquired lands.

In the Dollar Company, Madras v. Collector of Madras [vii] the Supreme court held that: “In determining the market value the main criterion is what a willing purchaser would pay a willing vendor. Ordinarily a party will be entitled to get the amount that he actually and willingly paid for a particular property, provided the transaction be bona fide and entered into with due regard to the prevalent market conditions and is proximate in time to the relevant date under Section 23. The best evidence of the value of property is the sale of the very property to which the claimant is a party. If the sale is of a recent date, then all that need normally be proved is that the sale was between a willing purchaser and a willing seller, that there has not been any appreciable rise or fall since and that nothing has been done on the land during the short interval to raise its value. But if the sale was long ago, may be the Court would examine more recent sales of comparable lands as throwing better light on current land value. Such lands should be close by and not a mile-and-half away as one of the examples pressed here was. So, an actual transaction with respect to the specific land of recent date is a guide-book that courts may notneglect when called upon to pin the precise compensation.”

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[i] decided on 22/01/2009

[ii] (1980) 1SCC 575

[iii] (1991) 4 SCC 218

[iv] (1991) 4 SCC 195, Para 10

[v] (1994) 2 SCC 133

[vi] (2005) 12 SCC 59

[vii] (1975) 2 SCC 730