85. Remand of accused on change of investigating agency

Whether with the change of an investigating authority, police custody of the accused on remand can be sought for, although cognizance of theoffence had already been taken ?

In Mithabhai pashabhai patel v. State of Gujrat (Crl. Appeal no 941 of 2009) decided by supreme court on 06/05/2009, the accused were remanded to police custody in terms of sub-section (2) of Section 167 of the Code of Criminal Procedure, 1973. Upon completion of investigation, a charge sheet was submitted. The matter was committed to the Sessions Court and cognizance of the offence was taken by the Sessions Judge. They

were granted bail by the HighCourt .

The matter had came up before the supreme Court and the supreme court appointed a Special Investigation Team. Pursuant to or in furtherance of the said direction the State of Gujarat issued a Notification on 1st April, 2008 constituting a Special Investigation Team to investigate into cases arising out of Godhra incident and communal riots erupted thereafter in the year 2002.

Thereafter An application was filed sessions judge by Assistant Superintendent of Police, seeking remand of the

accused for a period of 14 days. The reasons assigned therefor were that that offences under some provisions were added and investigation with respect to the said offences from the accused could not be carried out therefor in respect of certain points mentioned therein.

By reason of a judgment and order dated 23rd May, 2008 the said application was rejected by the learned Sessions Judge, on the ground that Police remand can be granted only by the committal court. Therefore, after getting cancellation of bail order, applicant member of Special Investigation Team is also directed to first of all approach the learned Judicial Magistrate First Class Prantij-committal court for Police custody in the present case because this court is a Sessions Court not competent to grant remand order unless and until that prayer is

rejected by Magistrate.

Against the order of sessions judge, the State preferred a revision application before the High Court and the High Court reversed the decision of the Sessions Judge and directed that the appellants be remanded to custody. The High Court in support of its order opined :

a) Having regard to the constitution of the Special InvestigatingTeam, further investigation is required to be made and Section 167(2) of the Code gives ample power for further investigation.

b) Further investigation is required to be made in the facts and circumstances of the case as earlier investigation was carried out in a most perfunctory manner.

c) Since new sections are added, further enquiry/investigation would be required to be conducted in the matter and the investigating agency cannot be denied such a right and to have the custody of the appellants. For the said purpose, the fact that the appellants had been granted bail would be of no relevance.

d) Section 167 (2) and not the proviso appended to Section 309 (2) of the Code would be applicable in a case of this nature.

e) As the Special Investigating Team has the power to reinvestigate, it is not necessary to seek for cancellation of bail.

f) The committal order having been passed, the Sessions Judge should have exercised its jurisdiction under Section 397 of the Code.

On appeal the supreme court held that : Indisputably the investigating agency in terms of sub-section (8) of Section 173 of the Code can pray before the Court and may be granted permission to investigate into the matter further. There are, however, certain situations, where such a formal request may not be insisted upon. It is, however, beyond any cavil that `further investigation' and `re- investigation' stand on different footing. It may be that in a given situation a superior court in exercise of its constitutional power, namely under Articles 226 and 32 of the Constitution of India could direct a `State' to get an offence investigated and/or further investigated by a different agency.Direction of a re-investigation, however, being forbidden in law, no superior could would ordinarily issue such a direction. Besides discussing the case law elaborately, the supreme court cited in Ramachandran v. R. Udhayakumar, [(2008) 5 SCC 413] wherein Pasayat, J opined as under :-

"7. At this juncture it would be necessary to take note of Section 173 of the Code. From a plain reading of the above section it is evident that even after completion of investigation under sub-sectio (2) of Section 173 of the Code, the police has rightto further investigate under sub-section (8), but not fresh investigation or reinvestigation..."

The supreme court held that “a distinction, therefore, exists between a re-investigation and further investigation.

The pre- cognizance jurisdiction to remand vested in the subordinate courts, therefore, must be exercised within the four-corners of the Code.The power to remand, indisputably, is vested in a Magistrate in terms of sub-section (2) of Section 167 of the Code of criminal procedure."

The power of remand in terms of the aforementioned provision is to be exercised when investigation is not complete. Once charge-sheet is filed and cognizance of the offence is taken, the court cannot exercise its power

under sub-section (2) of Section 167 of the Code. Its power of remand can then be exercised in terms of sub-section (2) of Section 309 Appellants had been granted bail. They are not in custody of the court. They could not be taken in custody ordinarily unless their bail was not cancelled. The High Court, in our opinion, was not correct in holding that as further investigation was required, sub-section (2) of Section 167 of the Code gives ample power for grant of police remand.

84. Conditional legislation and delegated legislation

In the case of conditional legislation, the legislation is complete in itself but its operation is made to depend on fulfillment of certain conditions and what is delegated to an outside authority, is the power to determine according to its own judgment whether or not those conditions are fulfilled. In case of delegated legislation proper, some portion of the legislative power of the Legislature is delegated to the outside authority in that, the Legislature, though competent to perform both the essential and ancillary legislative functions, performs only the former and parts with the latter, i.e., the ancillary function of laying down details in favour of another for executing the policy of the statute enacted. The distinction between the two exists in this that whereas conditional legislation contains no element of delegation of legislative power and is, therefore, not open to attack on the ground of excessive delegation, delegated legislation does confer some legislative power on some outside authority and is therefore open to attack on the ground of excessive delegation.

In Sardar Inder Singh v. State of Rajasthan, AIR 1957 SC 510 it was laid down that when an appropriate Legislature enacts a law and authorizes an outside authority to bring it into force in such area or at such time as it may decide, that is conditional and not delegated legislation. Following this decision in State of T.N. v. K Sabanayagam, AIR 1998 SC 344 the Supreme Court held:

“The distinction between conditional legislation and delegated legislation is this that :

in the former the delegate's power is that of determining when a legislative declared rule of conduct shall become effective : Hampton and Co. v. U.S., (1927) 276 US 394, and the latter involves delegation of rule-making power which constitutionally may be exercised by the administrative agent. This means that the legislature having laid down the broad principles of its policy in the legislation can then leave the details to be supplied by the administrative authority. In other words by delegated legislation the delegate completes the legislation by supplying details within the limits prescribed by the statute and in the case of conditional legislation the power of legislation is exercised by the legislature conditionally, leaving to the discretion of an external authority the time and manner of carrying its legislation into effect as also the determination of the area to which it is to extend; [The Queen v. Burah, (1978) 3 App Cas 889; Russel v. The Queen, (1882) 7 App Cas 829, 835; King Emperor v. Benoarilal Sarma, (1944) 72 Ind App 57 : (AIR 1945 PC 48); Sardar Inder Singh v. State of Rajasthan, (1957) SCR 605 : (AIR 1957 SC 510)]. Thus when the delegate is given the power of making rules and regulations in order to fill in the details to carry out and subserve the purposes of the legislation the manner in which the requirements of the statute are to be met and the rights therein created to be enjoyed it is an exercise of delegated legislation. But when the legislation is complete in itself and the legislature has itself made the law and the only function left to the delegate is to apply the law to an area or to determine the time and manner of carrying it into effect, it is conditional legislation."

The supreme court said that conditional legislation can be broadly classified into three categories :-

In the first category when the Legislature has completed the task of enacting a Statute, the entire superstructure of the legislation is ready but its future applicability to a given area is left to the subjective satisfaction of the delegate who being satisfied about the conditions indicating the ripe time for applying the machinery of the said Act to a given area exercises that power as a delegate of the parent legislative body. When the Act itself is complete and is enacted to be uniformly applied in future to all those who are to be covered by the sweep of the Act, the Legislature can be said to have complied its task. All that it leaves to the delegate is to apply the same uniformly to a given area indicated by the parent Legislature itself but at an appropriate time. This would be an act of pure and simple conditional legislation depending upon the subjective satisfaction of the delegate as to when the said Act enacted and completed by the parent Legislature is to be made effective. As the parent Legislature itself has laid down a binding course of conduct to be followed by all and sundry to be covered by the sweep of the legislation and as it has to act as a binding rule of conduct within that sweep and on the basis of which all their future actions are to be controlled and guided, it can easily be visualised that if the parent Legislature while it enacted such law was not required to hear the parties likely to be affected by the operation of the Act, its delegate exercising an extremely limited and almost ministerial function as an agent of the principal Legislature applying the Act to the area at an appropriate time is also not supposed and required to hear all those who are likely to be affected in future by the binding code of conduct uniformly laid down to be followed by all within the sweep of the Act as enacted by the parent Legislature. However, there may be second category of conditional legislations wherein the delegate has to decide whether and under what circumstances a completed Act of the parent legislation which has already come into force is to be partially withdrawn from operation in a given area or in given cases so as not to be applicable to a given class of persons who are otherwise admittedly governed by the Act. When such a power by way of conditional legislation is to be exercised by the delegate a question may arise as to how the said power can be exercised. In such an eventuality if the satisfaction regarding the existence of condition precedent to the exercise of such power depends upon pure subjective satisfaction of the delegate and if such an exercise is not required to be based on the prima facie proof of factual data for and against such an exercise and if such an exercise is to uniformly apply in future to a given common class of subjects to be governed by such an exercise and when such an exercise is not to be confined to individual cases only, then even in such category of cases while exercising conditional legislative powers the delegate may not be required to have an objective assessment after considering rival versions on the data placed before it for being taken into consideration by it in exercise of such power of conditional legislation.

Where the delegate proceeds to fill up the details of the legislation for the future which is part of the integrated action of policy-making for the future, it is part of the future policy and is legislative. But where he merely determines either subjectively or objectively - depending upon the "conditions" imposed in the Statute permitting exercise of power by the delegate - there is no legislation involved in the real sense and therefore, applicability of principles of fair play, consultation or natural justice to the extent necessary cannot be said to be foreclosed. The fact that in such cases of 'conditional legislation' these principles are not foreclosed does not necessarily mean that they are always mandated. In a case of purely ministerial function or in a case where no objective conditions are prescribed and the matter is left to the subjective satisfaction of the delegate no such principles of fair play, consultation or natural justice could be attracted. That is because the very nature of the administrative determination does not attract these formalities and not because the determination is legislative in character. But there may be a third category of cases wherein the exercise of conditional legislation would depend upon satisfaction of the delegate on objective facts placed by one class of persons seeking benefit of such an exercise with a view to deprive the rival class of persons who otherwise might have already got statutory benefits under the Act and who are likely to lose the existing benefit because of exercise of such a power by the delegate. In such type of cases the satisfaction of the delegate has necessarily to be based on objective consideration of the relevant data for and against the exercise of such power. May be such an exercise may not amount to any judicial or quasi-judicial function, still it has to be treated to be one which requires objective consideration of relevant factual data pressed in service by one side and which could be tried to be rebutted by the other side who would be adversely affected if such exercise of power is undertaken by the delegate. In such a third category of cases of conditional legislation the Legislature fixes up objective conditions for the exercise of power by the delegate to be applied to past or existing facts and for deciding whether the rights or liabilities created by the Act are to be denied or extended to particular areas, persons or groups. This exercise is not left to his subjective satisfaction nor it is a mere ministerial exercise

83. Blood test in paternity dispute

In matters where paternity is disputed, the court must have regard to Section 112 of the Evidence Act. This section is based on the well known maxim pater est quem nuptioe demonstrant (he is the father whom the marriage indicates). The presumption of legitimacy is this, that a child born of a married woman is deemed to be legitimate, it throws on the person who is interested in making out the illegitimacy, the whole burden of proving it. The law presumes both that a marriage ceremony is valid and that every person is legitimate. Marriage or affiliation (parentage) may be presumed, the law in general presuming against vice and immorality."

This section requires the party disputing the paternity to prove non-access in order to dispel the presumption. "Access" and "non-access" mean the existence or nonexistence of opportunities for sexual intercourse; it does not mean actual cohabitation".'

It is a rebuttable presumption of law that a child born during the lawful wedlock is legitimate, and that access occurred between the parents. This presumption can only be displaced by a strong preponderance of evidence, and not by a mere balance of probabilities.

In Smt. Dukhtar Jahan v. Mohammed Farooq, AIR 1987 SC 1049 the supreme court court held :

“Section 112 lays down that if a person was born during the continuance of a valid marriage between his mother and any man or within two hundred and eighty days after its dissolution and the mother remains unmarried, it shall be taken as conclusive proof that he is the legitimate son of that man, unless it can be shown that the parties to the marriage had no access to each other at anytime when he could have been begotten. This rule of law based on the dictates of justice has always made the courts incline towards upholding the legitimacy of a child unless the facts are so compulsive and clinching as to necessarily warrant a finding that the child could not at all have been begotten to the father and as such a legitimating of the child would result in rank injustice to the father. Courts have always desisted from lightly or hastily rendering a verdict and that too, on the basis of slender materials, which will have the effect of branding a child as a bastard and its mother an unchaste woman."

Following the decision in Dukhtar Jahan, the supreme court in Gautam Kundu v. West Bengal(AIR 1993 SC 2295) held that:

The effect of this section is this: there is a presumption and a very strong one though a rebuttable one. Conclusive proof means as laid down under Section 4 of the Evidence Act and upheld the orders of CJM and High Court rejecting the application for blood test with an observation that “We find the purpose of the application is nothing more than to avoid payment of maintenance, without making any ground whatever to have recourse to the test. Accordingly the Special Leave Petition will stand dismissed.”

The supreme court sumarised the position as under:

(1) Courts in India cannot order blood test as a matter of course;

(2) Wherever applications are made for such prayers in order to have roving inquiry, the prayer for blood test cannot be entertained.

(3) There must be a strong prima facie case in that the husband must establish non-access in order to dispel the presumption arising under section 112 of the Evidence Act.

(4) The Court must carefully examine as to what would be the consequence of ordering the blood test; whether it will have the effect of branding a child as a bastard and the mother as an unchaste woman.

(5) No one can be compelled to give sample of blood for analysis

82. Fraud/cheating - simultanious civil and criminal case

We are frequently consulted for quashment of criminal proceedings on the ground that a civil proceeding for same cause of action is already pending. This hapens often in matters relating to transfer of property and money transactions. the question arises as to whether a pure civil dispute can be a subject matter of a criminal proceeding under Sections 420, 467, 468 and 469 of the Indian Penal Code?

In P. Swaroopa Rani v. M. Hari Narayana @ Hari Babu [AIR 2008 SC 1884 : (2008) 5 SCC 765], it was held that “-- it is well-settled that in a given case, civil proceedings and criminal proceedings can proceed simultaneously. Whether civil proceedings or criminal proceedings shall be stayed depends upon the fact and circumstances of each case."

In Criminal appeal no. 940 of 2009 (Devendra v. state of UP) decided on 6/5/9 the apex court held that:

“There cannot, however, be any doubt or dispute whatsoever that in a given case a civil suit as also a criminal proceeding would be maintainable.They can run simultaneously. Result in one proceeding would not be

binding on the court determining the issue before it in another proceeding.”

In this case the court further held : “It is, therefore, evident that a misrepresentation from the very beginning is a sine qua non for constitution of an offence of cheating,although in some cases, an intention to cheat may develop at a later stage of formation of the contract.”

Thus as the supreme court held in Devendra’s case, a distinction must be made between a civil wrong and a

criminal wrong. When dispute between the parties constitute only a civil wrong and not a criminal wrong, the courts would not permit a person to be harassed although no case for taking cognizance of the offence has been made out.

81. 304 B, IPC - cruelty soon before death

Section 304B of the Penal Code has the following ingredients:

(i) The death of a woman must have been caused by burns or bodily injury or otherwise than under normal circumstances;

(ii) Such death must have occurred within seven years from the date of the marriage'

(iii) Soon before her death, the woman must have been subjected to cruelty or harassment by her husband or any relative of herhusband; and

(iv) Such cruelty or harassment must be in connection with the demand of dowry.

In order to attract the said provision, it is imperative on the part of the prosecution to establish that the cruelty or harassment has been meted out to the deceased `soon before her death'. There cannot be any doubt or dispute that it is a flexible term. Its application would depend upon the factual matrix obtaining in a particular case. No fix period can be indicated therefor. It, however, must undergo the test known as `proximity test'. What, however, is necessary for the prosecution is to bring on record that the dowry demand was not too late and not too stale before the death of the victim. In Satvir Singh and Ors. vs. State of Punjab and Anr. [(2001) 8 SCC 633], the Supreme Court held:

"22. It is not enough that harassment or cruelty was caused to the woman with a demand for dowry at some time, if Section 304B is to be invoked. But it should have happened "soon before

her death". The said phrase, no doubt, is an elastic expression and can refer to a period either immediately before her death or within a few days or even a few weeks before it. But the proximity to her death is the pivot indicated by that expression.The legislative object in providing such a radius of time by employing the words "soon before her death" is to emphasis the idea that her death should, in all probabilities, have been the aftermath

of such cruelty or harassment.”

Same view was teken in Thakkan Jha & Ors.v. State of Bihar [(2004) 13 SCC 348] and in Kamesh Panjiyar Alias Kamlesh Panjiyar vs. State of Bihar [(2005) 2 SCC 388].

Discussing above noted cases as well as other decisions and 91st report of the Law commission, the apex court in Crl appeal no 939 of 2009 , suresh kumar singh v. State of UP decided on 6/5/9 held that : “Some harassment which had taken place one year prior to the death without something more, in our opinion, could not have been considered to be a cruelty which had been inflicted soon before the death of the deceased.

It does not satisfy the proximity test.” In this case since unnatural death was occurred after 7 yrs of marriage the supreme court set aside the conviction u/s 304 B but upheld the conviction u/s 498 A of IPC.

80. MV Act- Compensation amount on death of children

On 15/05/2009 the supreme court in civil appeal no 3608/2009 had occasion to consider ''whether status of parents should be considered while awarding compensation on account of accidental death of minor children ?''

In this case, children of claimants were studying in school. when these children were proceeding to the school in a bus the bus after overrunning the road and breaking the railing got drowned in Yamuna river at Wazirabad Yamuna Bridge. Consequent to the accident, 29 children died. the tribunal calculated the compensation applying the multiplier provided under schedule but did not award any compensation on account of non pecuniary loss. the high court enhanced the compensation by 75000/ on account of non pecuniary loss. the supreme court further enhanced this amount by 75000/. The supreme court took in consideration the performance of children in school but not the financial status of their parents.

The supreme court held that:

"no amount of compensation can restore the lost limb or the experience of pain and suffering due to loss of life. Loss of a child, life or a limb can never be eliminated or ameliorated completely. To put it simply-pecuniary damages cannot replace a human life or limb lost. Therefore, in addition to the pecuniary losses, the law recognises that payment should also be made for non pecuniary losses on account of, loss of happiness, pain, suffering and expectancy of life etc. The Act provides for payment of "just compensation" vide section 166 and 168. It is left to the courts to decide what would be "just compensation" in facts of a case."

The real problem that arises in the cases of death of children is that they are not earning at the time of the accident. In most of the cases they were still studying and not working. However, under no stretch of imagination it can be said that the parents, who are appellants herein, have not suffered any pecuniary loss. In fact, Loss of dependency by its very nature is awarded for prospective or future loss.

It is extremely difficult to quantify the non pecuniary compensation as it is to a great extent based upon the sentiments and emotions. But, the same could not be a ground for non-payment of any amount whatsoever by stating that it is difficult to quantify and pinpoint the exact amount payable with mathematical accuracy.

Human life cannot be measured only in terms of loss of earning or monetary losses alone. There are emotional attachments involved and loss of a child can have a devastating effect on the family which can be easily visualized and understood. Perhaps, the only mechanism known to law in this kind of situation is to compensate a person who has suffered non-pecuniary loss or damage as a consequence of thewrong done to himby way of damages/monetary compensation. Undoubtedly, when a victim of a wrong suffers injuries he is entitled to compensation including compensation for the prospective life, pain and suffering, happiness etc., which is sometimes described as compensation paid for "loss of expectation of life".This head of compensation need not be restricted to a case where the injured person himself initiates action but is equally admissible if his dependant brings about the action.

This pain and suffering does not depend upon the financial position of the victim or the claimant but rather on the capacity and the ability of the deceased to provide happiness to the claimant. This compensation is paid for loss of prospective happiness which the claimant/victim would have enjoyed had the child not been died at the tender age.

The supreme court held that the claim with regard to future prospect should have been be addressed by thecourts below.While considering such claims,child's performance in school, the reputation of the school etc. might be taken into consideration. In the present case, the court found that the children were good in studies and studying in a reasonably good school. Naturally, their future prospect would be presumed to be good and bright. Since they were children, there is no yardstick to measure the loss of future prospects of these children. But they were performing well in studies, natural consequence supposed to be a bright future. In the case of Lata Wadhwa v. State of bihar (2001)8 scc 197 and M. S. Grewal v. Deep chand (2001)8 scc 151, the Supreme Court recognised such future prospect as basis and factor to be considered. Therefore,denying compensationtowards future prospects was held unjustified. Keeping this in background, facts and circumstances of the present case, and following the decision in Lata Wadhwa (supra) and M. S. Grewal (supra), the supreme court granted compensation of Rs. 75,000/- (which was roughly half of the amount given on account of pecuniary damages) as compensation for the future prospects of the children, to be paid to each claimant.

79. Transplantation of human organs

Transplantation of human organs is governed by Transplantation of Human Organs Act, 1994 (herein after referred as 'Act') read with Transplantation of Human Organs Rules, 1995 (herein after referred as 'Rules').The Act was promulgated to provide for the regulation of removal, storage and transplantation of human organs for therapeutic purposes and for the prevention of commercial dealings in human organs and for matters connected therewith or incidental thereto.

The Act has came into force w.e.f. 4-2-1995 in certain States and in all Union Territories. It is provided in Section 1 of the Act that it shall apply to such other States which adopt the Act by resolution passed in that behalf under clause (1) of Article 252 of the Constitution.

Section 9 deals with "Restriction on removal and transplantation of human organs". The same reads as follows :

"Restrictions on removal and transplantation of human organs-

(1) Save as otherwise provided in sub-section (3), no human organ removed from the body of a donor before his death shall be transplanted into a recipient unless the donor is a near relative of the recipient.

(2) Where any donor authorizes the removal of any of his human organs after his death under sub-section (2) of Section 3 or any person competent or empowered to give

authority for the removal of any human organ from the body of any deceased person authorizes such removal, the human organ may be removed and transplanted into the body of any recipient who may be in need of such human organ.

(3) If any donor authorizes the removal of any of his human organs before his death under sub-section (1) of Section 3 for transplantation into the body of such recipient not being a near relative as is specified by the donor by reason of affection or attachment towards the recipient or for any other special reasons, such human organ shall not be removed and transplanted without the prior approval of the Authorisation Committee.

(4) (a) The central Government shall constitute, by notification, one or more Authorisation Committees consisting of such members as may by nominated by the Central Government on such terms and conditions as may be specified in the notification for each of the Union Territories for the purposes of this section.

(b) The State Government shall constitute, by notification, one or more Authorisation Committees consisting of such members as may be nominated by the State Government on such terms and conditions as may be specified in the notification for the purposes of this section.

On an application jointly made in such form and in such manner as may be prescribed, by the donor and the recipient, the Authorisation Committee shall, after holding an inquiry and after satisfying itself that the applicants have complied with all the requirements of this Act and the Rules made thereunder, grant to the applicants approval for the removal and transplantation of the human organ.

If, after the inquiry and after giving an opportunity to the applicants of being heard, the Authorisation Committee is satisfied that the applicants have not complied with the requirements of this Act and the Rules made thereunder, it shall, for reasons to be recorded in writing, reject the application for approval."

The provision refers to donors who are not "near relatives" of the recipient. The expression 'near relatives' is defined in Section 2(i) to mean 'spouse, son, daughter, father, mother, brother or sister'. Chapter II deals with "Authority for the removal of human organs". Sub-section (2) of Section 3 deals with removal of the organs after death for thereapeutic purposes. Sub-section (1), however, deals with authorization by any donor for removal of any human organ before his death for therapeutic purposes. Sub-section (4) of Section 9 deals with constitution of Authorisation Committee consisting of such members as may be notified by the Central Government or the State Government, as the case may be. Under sub-section (5) of Section 9 application is required to be jointly made by the donor and the recipient in the prescribed manner. The Authorisation Committee is required to hold an enquiry and if after such an enquiry it is certified that the applicants have complied with the requirements of the Act and the Rules, it can grant the applicant's approval for the removal and transplantation of the concerned human organs. If on the contrary, after enquiry and after giving an opportunity to the applicants of being heard, the Authorisation Committee is of the view that the applicants have not complied with the rquirements of the Act and the Rules, the application for approval may be rejected for reasons to be recorded in writing. Section 11 prohibits removal or transplantation of human organs for any purpose other than therapeutic purposes. Chapter VI deals with "Offences and Penalties". Section 18 provides for removal of human organ without authority. Section 19 provides for punishment for commercial dealings in human organs. The shocking exploitation of abject poverty of many donors for even small sums of money, appears to have provided the foundation for enacting the Act. The Authorisation Committee has to be satisfied that the authorization for removal is not for commercial consideration. Since some amount of urgency has to be exhibited because of the need for transplantation, expeditious disposal of the application would be appropriate. But the matter should not be dealt with in a casual manner as otherwise the intent and purpose of the Act shall be frustrated.

Rule 3 deals with "Authority for Removal of Human Organ". The conditions for removal before death are incorporated in the Form I. The same reads as follows :

"Authority for Removal of Human Organ-

Any donor may authorize the removal, before his death, of any human organ of his body for therapeutic purposes in the manner and on such conditions as specified in Form I."

Form I reads as follows :

"I, --- aged -----s/o, d/o, w/o, Mr. ---------- resident of ------- hereby authorize to remove for therapeutic purposes/ consent to donate my organ, namely, ----------- to:

(i) Mr./Mrs. --------- s/o, d/o, w/o Mr.---------- aged ---- resident of ----- who happens to be my near relative as defined in clause (i) of Section 2 of the Act.

(ii) Mr. /Mrs. --------s/o, d/o, w/o Mr.------------- aged ---- resident of -------- towards whom I possess special affection or attachment, or for any special reason (to be specified)

I certify that the above authority/consent has been given by me out of my own free will without any undue pressure, inducement, influence or allurement and that the purposes of the above authority/donation and of all possible complications, side-effects, consequences and options have been explained to me before giving this authority or consent or both.

Signature of the Donor"

Where the donor is not "near relative" as defined under the Act, the situation is covered by sub-section (3) of Section 9. As the Form I in terms of Rule 3 itself shows the same has to be filed in both the cases where the donor is a near relative and where he is not, so far as the recipient is concerned. In case the donor is not a near relative the requirement is that he must establish that removal of the organ was being authorized for transplantation into the body of the recipient because of affection or attachment or for any special reasons to make donation of his organ. As the purpose of enactment of the Statute itself shows, there cannot be any commercial element involved in the donation. The object of the Statute is crystal clear that it intends to prevent commercial dealings in human organs. The Authorization Committee is, therefore, required to satisfy that the real purpose of the donor authorizing removal of the organ is by reason of affection or attachment towards the recipient or for any other special reason. Such special reasons can by no stretch of imagination encompass commercial elements. Above being the intent, the inevitable conclusion is that the Authorization Committees of the State to which the donor and the donee belong have to take the exercise to find out whether approval is to be accorded. Such Committee shall be in a better position to ascertain the true intent and the purpose for the authorization to remove the organ and whether any commercial element is involved or not. They would be in a better position to lift the veil of projected affection or attachment and the so-called special reasons and focus on the true intent. The burden is on the applicants to establish the real intent by placing relevant materials for consideration of the Authorization Committee. Whether there exists any affection or attachment or special reason is within the special knowledge of the applicants, and a heavy burden lies on them to establish it. Several relevant factors like relationship if any (need not be near relationship for which different considerations have been provided for), period of acquaintance, degree of association, reciprocity of feelings, gratitude and similar human factors and bonds can throw light on the issue. It is always open to the Authorization Committee considering the application to seek information/materials from Authorization Committees of other States/State Governments, as the case may be, for effective decision in the matter. In case any State is not covered by the operation of the Act or the Rules, the operative executive instructions/Government orders will hold the field. As the object is to find out the true intent behind the donor's willingness to donate the organ, it would not be in line with the legislative intent to require the Authorization Committee of the State where the recipient is undergoing medical treatment to decide the issue whether approval is to be accorded. Form I in terms requires the applicants to indicate the residential details. This indication is required to prima facie determine as to which is the appropriate Authorization Committee. In the instant case, therefore, it was the Authorization Committee of the State of Punjab which is required to examine the claim of the petitioners.

It is notable here that there is a provision for appeal in terms of Section 17 of the Act in case of refusal by the Authorization Committee. But taking into account the urgency involved and the grey area projected by the two States regarding the proper Authorization Committee, we have entertained the Writ Petition and decided the issues involved. In the normal course, it would be for the Appellate Authority constituted in terms of Section 17 who has to consider the appeal to be preferred by the aggrieved party.

With aforesaid discussions the supreme court in Kuldeep singh v. State of T.N., AIR 2005 SC 2106 directed for certain amendments in following terms:

“Since the object of the Statute is to rule out commercial dealings, it would be desirable to require the donor and recipient to give details of their financial positions and vocations. It would be appropriate for the Legislature to accordingly amend the Rules and the Form I, so that requirement for disclosing incomes and vocations for some previous financial years (say 3 years) gets statutorily incorporated. This would help the Authorization Committees to assess whether any commercial dealing is involved or not. Until legislative steps are taken, all Authorization Committees shall, in terms of this judgment require the applicants to furnish their income particulars for the previous three financial years and the vocations.”

78. Investigation by unauthorised officer

In Crl Appeal no 943/2003 State of MP v. Chunni lal decided on 15th April 2009 FIR was lodged under s. 376, IPC and s. 3, Section 3(1)(xii) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. since Post of Dy.SP was vacent (who was authorised to investigate under SC ST Act), the ASP authorised a SI to investigate . In revision, the High court quashed the charges . The supreme court passed following order: “ The High Court was therefore not justified in quashing the entire proceedings. The order shall be restricted to the offence under Section 3 of the Act and not in respect of offences punishable under the IPC. The appeal is allowed to the aforesaid extent.”

Section 9 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 and Rule 7 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995 read as follows:

"Section 9-Conferment of powers.-- (1) Notwithstanding anything contained in the code or in any other provision of this

Act, the State Government may, if it considers it necessary or expedient so to so,-

(a) for the prevention of coping with any offence under this act,

or

(b) for any case of class of group of cases under this Act, in any district or part thereof, confer, by notification in the Official Gazette, on any officer of the State Government the powers exercisable by a police officer under the Code in such district or part thereof or, as the case may be, for such case or class or group of cases, and in particulars, the powers of arrest, investigation and prosecution of persons before any Special Court.

(2) All officers of police and all other officers of Government shall assist the officer referred to in Sub-section (1) in the

execution of the provisions of this Act or any rule, scheme or order made thereunder.

(3) The provisions of the Code shall, so far as may be, apply to the exercise of the powers by an officer under Sub-section (1).

Rule 7-Investigating Officer,-- (1) An offence committed under the Act shall be investigated by a Police Officer not below the rank of a Deputy Superintendent of Police. The Investigating Officer shall be appointed by the State Government/Director-General of Police Superintendent of Police after taking into account his post experience sense of ability and justice to perceive the implications: of the case and investigate it along with right lines within the shortest possible time.

(2) The Investigating Officer so appointed under Sub-rule (1) shall complete the investigation on top priority within thirty days and submit the report to the Superintendent of Police who in turn will immediately forward the report to the Director General of Police of the State Government.

(3) The Home Secretary and the Social Welfare Secretary to the State Government, Director of Prosecution, the Officer-in-

charge of Prosecution and the Director-General of Police shall review by the end of every quarter the position of all investigation done by the Investigating Officer."

The supreme court held that “By virtue of its enabling power it is the duty and responsibility of the State Government to issue notification conferring power of investigation of cases by notified police officer not below the rank of Deputy Superintendent of

Police for different areas in the police districts. Rule 7 of the Rules provided rank of investigation officer to be not below the rank of Deputy Superintendent of Police. An officer below that rank cannot act as investigating officer. The provisions in Section 9 of the Act, Rule 7 of the Rules and Section 4 of the Code when jointly read lead to an irresistible conclusion that the investigation to an offence under Section 3 of the Act by an officer not appointed in terms of Rule 7 is illegal and invalid. But when the offence complained are both under the IPC and any of the offence enumerated in Section 3 of the Act the investigation which is being made by a competent police officer in accordance with the provisions of the Code cannot be quashed for non investigation of the offence under Section 3 of the Act by a competent police officer. In such a situation the proceedings shall proceed in appropriate Court for the offences punishable under the IPC notwithstanding investigation and the charge sheet being not liable to be accepted only in respect of offence under Section 3 of the Act for taking cognizance of that offence.”

Now, the question arises, shall there be a fresh investigation and separate prosecution under Section 3(1)(xii) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 only, subjecting the accused to double prosecution ? if not, is it permissible to take no action on that part of FIR/offence ?

76. Supreme court's jurisdiction - general information

JURISDICTION OF THE SUPREME COURT
The Supreme Court has original, appellate and advisory jurisdiction. Its exclusive original jurisdiction extends to any dispute between the Government of India and one or more States or between the Government of India and any State or States on one side and one or more States on the other or between two or more States, if and insofar as the dispute involves any question (whether of law or of fact) on which the existence or extent of a legal right depends. In addition, Article 32 of the Constitution gives an extensive original jurisdiction to the Supreme Court in regard to enforcement of Fundamental Rights. It is empowered to issue directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari to enforce them. The Supreme Court has been conferred with power to direct transfer of any civil or criminal case from one State High Court to another State High Court or from a Court subordinate to another State High Court. The Supreme Court, if satisfied that cases involving the same or substantially the same questions of law are pending before it and one or more High Courts or before two or more High Courts and that such questions are substantial questions of general importance, may withdraw a case or cases pending before the High Court or High Courts and dispose of all such cases itself. Under the Arbitration and Conciliation Act, 1996, International Commercial Arbitration can also be initiated in the Supreme Court.

The appellate jurisdiction of the Supreme Court can be invoked by a certificate granted by the High Court concerned under Article 132(1), 133(1) or 134 of the Constitution in respect of any judgement, decree or final order of a High Court in both civil and criminal cases, involving substantial questions of law as to the interpretation of the Constitution. Appeals also lie to the Supreme Court in civil matters if the High Court concerned certifies : (a) that the case involves a substantial question of law of general importance, and (b) that, in the opinion of the High Court, the said question needs to be decided by the Supreme Court. In criminal cases, an appeal lies to the Supreme Court if the High Court (a) has on appeal reversed an order of acquittal of an accused person and sentenced him to death or to imprisonment for life or for a period of not less than 10 years, or (b) has withdrawn for trial before itself any case from any Court subordinate to its authority and has in such trial convicted the accused and sentenced him to death or to imprisonment for life or for a period of not less than 10 years, or (c) certified that the case is a fit one for appeal to the Supreme Court. Parliament is authorised to confer on the Supreme Court any further powers to entertain and hear appeals from any judgement, final order or sentence in a criminal proceeding of a High Court.

The Supreme Court has also a very wide appellate jurisdiction over all Courts and Tribunals in India in as much as it may, in its discretion, grant special leave to appeal under Article 136 of the Constitution from any judgment, decree, determination, sentence or order in any cause or matter passed or made by any Court or Tribunal in the territory of India.

The Supreme Court has special advisory jurisdiction in matters which may specifically be referred to it by the President of India under Article 143 of the Constitution. There are provisions for reference or appeal to this Court under Article 317(1) of the Constitution, Section 257 of the Income Tax Act, 1961, Section 7(2) of the Monopolies and Restrictive Trade Practices Act, 1969, Section 130-A of the Customs Act, 1962, Section 35-H of the Central Excises and Salt Act, 1944 and Section 82C of the Gold (Control) Act, 1968. Appeals also lie to the Supreme Court under the Representation of the People Act, 1951, Monopolies and Restrictive Trade Practices Act, 1969, Advocates Act, 1961, Contempt of Courts Act, 1971, Customs Act, 1962, Central Excises and Salt Act, 1944, Enlargement of Criminal Appellate Jurisdiction Act, 1970, Trial of Offences Relating to Transactions in Securities Act, 1992, Terrorist and Disruptive Activities (Prevention) Act, 1987 and Consumer Protection Act, 1986. Election Petitions under Part III of the Presidential and Vice Presidential Elections Act, 1952 are also filed directly in the Supreme Court.

Under Articles 129 and 142 of the Constitution the Supreme Court has been vested with power to punish for contempt of Court including the power to punish for contempt of itself. In case of contempt other than the contempt referred to in Rule 2, Part-I of the Rules to Regulate Proceedings for Contempt of the Supreme Court, 1975, the Court may take action (a) Suo motu, or (b) on a petition made by Attorney General, or Solicitor General, or (c) on a petition made by any person, and in the case of a criminal contempt with the consent in writing of the Attorney General or the Solicitor General.

Under Order XL of the Supreme Court Rules the Supreme Court may review its judgment or order but no application for review is to be entertained in a civil proceeding except on the grounds mentioned in Order XLVII, Rule 1 of the Code of Civil Procedure and in a criminal proceeding except on the ground of an error apparent on the face of the record.

PUBLIC INTEREST LITIGATION
Although the proceedings in the Supreme Court arise out of the judgments or orders made by the Subordinate Courts including the High Courts, but of late the Supreme Court has started entertaining matters in which interest of the public at large is involved and the Court can be moved by any individual or group of persons either by filing a Writ Petition at the Filing Counter of the Court or by addressing a letter to Hon'ble the Chief Justice of India highlighting the question of public importance for invoking this jurisdiction. Such concept is popularly known as 'Public Interest Litigation' and several matters of public importance have become landmark cases. This concept is unique to the Supreme Court of India only and perhaps no other Court in the world has been exercising this extraordinary jurisdiction. A Writ Petition filed at the Filing Counter is dealt with like any other Writ Petition and processed as such. In case of a letter addressed to Hon'ble the Chief Justice of India the same is dealt with in accordance with the guidelines framed for the purpose.

PROVISION OF LEGAL AID
If a person belongs to the poor section of the society having annual income of less than Rs. 18,000/- or belongs to Scheduled Caste or Scheduled Tribe, a victim of natural calamity, is a woman or a child or a mentally ill or otherwise disabled person or an industrial workman, or is in custody including custody in protective home, he/she is entitled to get free legal aid from the Supreme Court Legal Aid Committee. The aid so granted by the Committee includes cost of preparation of the matter and all applications connected therewith, in addition to providing an Advocate for preparing and arguing the case. Any person desirous of availing legal service through the Committee has to make an application to the Secretary and hand over all necessary documents concerning his case to it. The Committee after ascertaining the eligibility of the person provides necessary legal aid to him/her.

Persons belonging to middle income group i.e. with income above Rs. 18,000/- but under Rs. 1,20,000/- per annum are eligible to get legal aid from the Supreme Court Middle Income Group Society, on nominal payments.

AMICUS CURIAE
If a petition is received from the jail or in any other criminal matter if the accused is unrepresented then an Advocate is appointed as amicus curiae by the Court to defend and argue the case of the accused. In civil matters also the Court can appoint an Advocate as amicus curiae if it thinks it necessary in case of an unrepresented party; the Court can also appoint amicus curiae in any matter of general public importance or in which the interest of the public at large is involved.

75. Final report and charge sheet

In Abhinandan Jha and Another v. Dinesh Mishra (AIR 1968 SC

117), the Supreme Court while considering the provisions of Sections 156(3), 169,178 and 190 of the Code held that there is no power, expressly or impliedly

conferred, under the Code, on a Magistrate to call upon the police to submit

a charge sheet, when they have sent a report under Section 169 of the Code,

that there is no case made out for sending up an accused for trial. The

functions of the Magistrate and the police are entirely different, and the

Magistrate cannot impinge upon the jurisdiction of the police, by

compelling them to change their opinion so as to accord with his view.

However, he is not deprived of the power to proceed with the matter. There

is no obligation on the Magistrate to accept the report if he does not agree

with the opinion formed by the police. The power to take cognizance


notwithstanding formation of the opinion by the police which is the final

stage in the investigation has been provided for in Section 190(1)(c).

When a report forwarded by the police to the Magistrate under

Section 173(2)(i) is placed before him several situations arise. The report

may conclude that an offence appears to have been committed by a

particular person or persons and in such a case, the Magistrate may either

(1) accept the report and take cognizance of the offence and issue process,

or (2) may disagree with the report and drop the proceeding, or (3) may

direct further investigation under Section 156(3) and require the police to

make a further report. The report may on the other hand state that according

to the police, no offence appears to have been committed. When such a

report is placed before the Magistrate, he has again the option of adopting

one of the three courses open i.e., (1) he may accept the report and drop the

proceeding; or (2) he may disagree with the report and take the view that

there is sufficient ground for further proceeding, take cognizance of the

offence and issue process; or (3) he may direct further investigation to be

made by the police under Section 156(3). The position is, therefore, now

well-settled that upon receipt of a police report under Section 173(2) a

Magistrate is entitled to take cognizance of an offence under Section


190(1)(b) of the Code even if the police report is to the effect that no case is

made out against the accused. The Magistrate can take into account the

statements of the witnesses examined by the police during the investigation

and take cognizance of the offence complained of and order the issue of

process to the accused. Section 190(1)(b) does not lay down that a

Magistrate can take cognizance of an offence only if the Investigating

Officer gives an opinion that the investigation has made out a case against

the accused. The Magistrate can ignore the conclusion arrived at by the

Investigating Officer and independently apply his mind to the facts

emerging from the investigation and take cognizance of the case, if he

thinks fit, exercise of his powers under Section 190(1)(b) and direct the

issue of process to the accused. The Magistrate is not bound in such a

situation to follow the procedure laid down in Sections 200 and 202 of the

Code for taking cognizance of a case under Section 190(1)(a) though it is

open to him to act under Section 200 or Section 202 also. [See M/s. India

Sarat Pvt. Ltd. v. State of Karnataka and another (AIR 1989 SC 885)]. The

informant is not prejudicially affected when the Magistrate decides to take

cognizance and to proceed with the case. But where the Magistrate decides

that sufficient ground does not subsist for proceeding further and drops the

proceeding or takes the view that there is material for proceeding against

some and there are insufficient grounds in respect of others, the informant

would certainly be prejudiced as the First Information Report lodged

becomes wholly or partially ineffective. Therefore,

where the Magistrate decides not to take

cognizance and to drop the proceeding or takes a view that there is no

sufficient ground for proceeding against some of the persons mentioned in

the First Information Report, notice to the informant and grant of

opportunity of being heard in the matter becomes mandatory. As indicated

above, there is no provision in the Code for issue of a notice in that regard.

It may be added here that the expressions `charge-sheet' or `final report'

are not used in the Code, but it is understood in Police Manuals of several

States containing the Rules and the Regulations to be a report by the police

filed under Section 170 of the Code, described as a "charge-sheet". In case

of reports sent under Section 169, i.e., where there is no sufficiency of

evidence to justify forwarding of a case to a Magistrate, it is termed

variously i.e., referred charge, final report or summary. Section 173 in terms

does not refer to any notice to be given to raise any protest to the report

submitted by the police. Though the notice issued under some of the Police

Manuals states it to be a notice under Section 173 of the Code, though there

is nothing in Section 173 specifically providing for such a notice.

As decided by the Supreme Court in Bhagwant Singh v. commissioner of police (AIR 1985 SC 1285), the

Magistrate has to give the notice to the informant and provide an

opportunity to be heard at the time of consideration of the report. It was

noted as follows:-

"....the Magistrate must give notice to the
informant and provide him an opportunity to be heard at
the time of consideration of the report..."

Therefore, the stress is on the issue of notice by the Magistrate at the

time of consideration of the report. If the informant is not aware as to when

the matter is to be considered, obviously, he cannot be faulted, even if

protest petition in reply to the notice issued by the police has been filed

belatedly. But as indicated in Bhagwant Singh's case (supra) the right is

conferred on the informant and none else.

(See, Criminal Appeal no 964/2007, Chitaranjan mirdha v. dulal Ghosh decided by supreme court on may 8, 2009)

74. High Courts in India

The High Court stands at the head of a State's judicial administration. There are 18 High Courts in the country, three having jurisdiction over more than one State. Among the Union Territories Delhi alone has a High Court of its own. Other six Union Territories come under the jurisdiction of different State High Courts. Each High Court comprises of a Chief Justice and such other Judges as the President may, from time to time, appoint. The Chief Justice of a High Court is appointed by the President in consultation with the Chief Justice of India and the Governor of the State. The procedure for appointing puisne Judges is the same except that the Chief Justice of the High Court concerned is also consulted. They hold office until the age of 62 years and are removable in the same manner as a Judge of the Supreme Court. To be eligible for appointment as a Judge one must be a citizen of India and have held a judicial office in India for ten years or must have practised as an Adovcate of a High Court or two or more such Courts in succession for a similar period.

Each High Court has power to issue to any person within its jurisdiction directions, orders, or writs including writs which are in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari for enforcement of Fundamental Rights and for any other purpose. This power may also be exercised by any High Court exercising jurisdiction in relation to territories within which the cause of action, wholly or in part, arises for exercise of such power, notwithstanding that the seat of such Government or authority or residence of such person is not within those territories.

Each High Court has powers of superintendence over all Courts within its jurisdiction. It can call for returns from such Courts, make and issue general rules and prescribe forms to regulate their practice and proceedings and determine the manner and form in which book entries and accounts shall be kept. The following Table (*Ann.A) gives the seat and territorial jurisdiction of the High Courts.

ADVOCATE GENERAL
There is an Advocate General for each State, appointed by the Governor, who holds office during the pleasure of the Governor. He must be a person qualified to be appointed as a Judge of High Court. His duty is to give advice to State Governments upon such legal matters and to perform such other duties of legal character, as may be referred or assigned to him by the Governor. The Advocate General has the right to speak and take part in the proceedings of the State Legislature without the right to vote.

LOK ADALATS
Lok Adalats which are voluntary agencies are monitored by the State Legal Aid and Advice Boards. They have proved to be a successful alternative forum for resolving of disputes through the conciliatory method.

The Legal Services Authorities Act, 1987 provides statutory status to the legal aid movement and it also provides for setting up of Legal Services Authorities at the Central, State and District levels. These authorities will have their own funds. Further, Lok Adalats which are at present informal agencies will acquire statutory status. Every award of Lok Adalats shall be deemed to be a decree of a civil court or order of a Tribunal and shall be final and binding on the parties to the dispute. It also provides that in respect of cases decided at a Lok Adalat, the court fee paid by the parties will be refunded.

JURISDICTION AND SEAT OF HIGH COURTS

Name	Year	Territorial establishment jurisdiction	Seat
Allahabad	1866	Uttar Pradesh	Allahabad (Bench at Lucknow)
Andhra Pradesh	1956	Andhra Pradesh	Hyderabad
Bombay	1862	Maharashtra, Goa, Dadra and Nagar Haveli and Daman and Diu	Bombay (Benches at Nagpur, Panaji and Aurangabad)
Calcutta	1862	West Bengal	Calcutta (Circuit Bench at Port Blair)
Delhi	1966	Delhi	Delhi
Guwahati(2)	1948	Assam, Manipur, Meghalaya, Nagaland,Tripura, Mizoram and Arunachal Pradesh	Guwahati (Benches at Kohima, Aizwal & Imphal. Circuit Bench at Agartala & Shillong)
Gujarat	1960	Gujarat	Ahmedabad
Himachal Pradesh	1971	Himachal Pradesh	Shimla
Jammu & Kashmir	1928	Jammu & Kashmir	Srinagar & Jammu
Karnataka(3)	1884	Karnataka	Bangalore
Kerala	1958	Kerala & Lakshadweep	Ernakulam
Madhya Pradesh	1956	Madhya Pradesh	Jabalpur (Benches at Gwalior and Indore)
Madras	1862	Tamil Nadu & Pondicherry	Madras
Orissa	1948	Orissa	Cuttack
Patna	1916	Bihar	Patna (Bench at Ranchi)
Punjab & Haryana(4)	1975	Punjab, Haryana & Chandigarh	Chandigarh
Rajasthan	1949	Rajasthan	Jodhpur (Bench at Jaipur)
Sikkim	1975	Sikkim	Gangtok