Thursday, 29 September 2016

Whether providing social security to legal profession is an essential part of legal system?

The two appellants before us in Civil Appeal No. 4453 of 2008, who are the registered dealers under the Kerala General Sales Tax Act, 1963 and/or the Kerala Value Added Tax Act, 2003 in the State of Kerala. They challenged the vires of S.R.O. No. 226 of 2002 dated April 05, 2002 issued by the Government of Kerala in exercise of powers under Section 76(1) of the Kerala Court Fees and Suits Valuation Act, 1959 (hereinafter referred to as the 'CF Act') whereby the Government authorised the tribunals and appellate authorities constituted by or under special or local law, other than civil and criminal courts, to levy additional court fee in respect of each appeal or revision at the rate of 0.5% of the amount involved in the dispute in cases where it is capable of valuation, and at the rate of ?50 in other cases.
This notification further provides that the amount so collected shall be credited to the Kerala Legal Benefit Fund constituted under sub-section (2) of Section 76 of the CF Act. The main contention of the appellants was that the aforesaid levy is in the nature of compulsory exaction/tax and the element of service/quid pro quo was absent and, therefore, such a fee cannot be charged.
As per the High Court, the administration of justice, thus, becomes a distinct topic and Article 39A calls upon the State to ensure establishment of such legal system which promotes justice and provides free legal aid. We agree with the aforesaid approach of the High Court. First of all, the argument of the appellants ignores that as per Section 76(3) of the CF Act, one of the purposes for which the Fund is to be utilised is for providing efficient legal services for the people of the State. It clearly amounts to quid pro quo.
Other purpose is also for the benefit of the public at large. When we talk of sound and stable system of administration of justice, all the stakeholders in the said legal system need to be taken care of. Legal community and advocates are inseparable and important part of robust legal system and they not only aid in seeking access to justice but also promote justice. Judges cannot perform their task of dispensing justice effectively without the able support of advocates. In that sense, advocates play an important role in the administration of justice.
It is wisely said that for any society governed by Rule of Law, effective judicial system is a necessary concomitant. The Rule of Law reflects man's sense of order and justice. There can be no Government without order; there can be no order without law; and there can be no administration of law without lawyers. It is no small service to be called upon to prosecute and enforce the rights of a litigant through the court of law and in that sense the legal profession is treated as service to the justice seekers. It is, therefore, by contributing an essential aid to the process of the administration of justice that the advocate discharges a public duty of the highest utility.
When the subject matter of the instant cases is examined in the aforesaid hue, it becomes apparent that providing social security to the legal profession becomes an essential part of any legal system which has to be effective, efficient and robust to enable it to provide necessary service to the consumers of justice.
Section 76 of the CF Act and the impugned notification vide which additional court fee is imposed have a direct nexus to the objective sought to be achieved in relation to the service available to the appellants or others who approached the courts/tribunals for redressal of their grievances. 
Cardamom Marketing Corporation & ANR. Vs State of Kerala & Ors.
[Civil Appeal No. 4453 of 2008]
[Writ Petition (Civil) No. 514 of 2009]
[Writ Petition (Civil) No. 490 of 2011]
Dated: 1 sept 2016
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When prosecution U/S 304B and S 498A of IPC is liable to be quashed on ground of territorial jurisdiction?

In the instant case, the question of territorial jurisdiction
was just one of the grounds for quashing the proceedings
along with the other grounds and, therefore, the High Court
should have examined whether the case was fit to be quashed
on other grounds or not. Nandini Sharma committed suicide
in her matrimonial home at Ambala. The information with
regard to the said incident was forwarded to the Police Station
Mulana, District Ambala. On 22.09.1999, post mortem on the
body was conducted and the case was closed by submitting a
final report before the SDM stating that there was no sign of
foul play in the occurrence. Since the appellant No. 1 was a
Flying Officer at the relevant time, a Court of Inquiry (CoI) was
also convened to investigate into the alleged role of the
appellant No. 1 herein which was finally closed on 25.07.2000.
None of the family members of the deceased raised any doubt
on the death of Nandini or named anyone in the appellant’s
family especially when the father, brother and other relatives
of the deceased were present at Ambala during the period
when the investigation was carried on. On a correct
appreciation of record, we do not find even a whisper about
the cruelty meted out to her soon before her death. In fact, it
is on record that the appellant No. 1 visited Durg several times
after the death of Nandini and stayed with in-laws.
15) The territorial jurisdiction of a court with regard to a
criminal offence would be decided on the basis of the place of
occurrence of the incident. In the instant case, the suicide
was committed at Ambala. The Ambala police closed the case
after fulfilling the requirements of Section 174 of the Code
holding that there was no foul play in the incident and also
there was no requirement of lodging FIR under Section 154 as
none of the family members of the deceased raised any
suspicion over the death even though the death was
committed within seven years of marriage. Also, there is no
evidence of it being a continuing offence. Hence, the offence
alleged cannot be said to have been committed wholly or partly
within the local jurisdiction of the Magistrate’s Court at Durg.
Prima facie, none of the ingredients constituting the offence
can be said to have occurred within the local jurisdiction of
that Court.
16) In the case on hand, as per the materials on record, in
Crime No. 194 of 2005, charge sheet has been filed and the
Judicial Magistrate First Class, Durg has taken cognizance of
the proceedings. In the present fact situation, we are of the
considered opinion that the Court at Durg has no territorial
jurisdiction to try the case and the proceedings are liable to be
quashed on the ground of lack of territorial jurisdiction since
the entire cause of action for the alleged offence had
purportedly arisen in the city of Ambala.
Manoj Kumar Sharma & Ors. 
State of Chhattisgarh & Anr. 
Dated:AUGUST 23, 2016.
Citation: AIR 2016 SC 3930
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Whether FIR lodged after closing of case on earlier inquiry conducted for unnatural death is maintainable?

 Learned senior counsel for the appellants submitted that
the earlier or the first information in regard to the commission
of a cognizable offence satisfies the requirement of Section 154
of the Code and there cannot be second FIR or fresh
investigation of any subsequent information in respect of the
same cognizable offence. Learned senior counsel further
stressed upon that when the police had conducted inquiry on
the information and closed the case there is no point in
re-opening the case by filing FIR that too on the basis of
anonymous letters received by the brother of the deceased
after a lapse of 5 (five) years. In view of the above claim of
learned senior counsel for the appellants, it is imperative to
discuss the scope of ‘Inquiry’ under Section 174 of the Code in
order to ascertain as to whether the ‘information’ received
under Section 174 of the Code satisfies the requirement of
Section 154 of the Code.
Scope of ‘Inquiry’ under Section 174 of the Code:
10) The proceedings under Section 174 have a very limited
scope. The object of the proceedings is merely to ascertain
whether a person has died under suspicious circumstances or
an unnatural death and if so what is the apparent cause of the
death. The question regarding the details as to how the
deceased was assaulted or who assaulted him or under what
circumstances he was assaulted is foreign to the ambit and
scope of the proceedings under Section 174 of the Code.
Neither in practice nor in law was it necessary for the police to
mention those details in the inquest report. It is, therefore,
10not necessary to enter all the details of the overt acts in the
inquest report. The procedure under Section 174 is for the
purpose of discovering the cause of death, and the evidence
taken was very short. When the body cannot be found or has
been buried, there can be no investigation under Section 174.
This section is intended to apply to cases in which an inquest
is necessary. The proceedings under this Section should be
kept more distinct from the proceedings taken on the
complaint. Whereas the starting point of the powers of police
was changed from the power of the officer in charge of a police
station to investigate into a cognizable offence without the
order of a Magistrate, to the reduction of the first information
regarding commission of a cognizable offence, whether
received orally or in writing, into writing. As such, the
objective of such placement of provisions was clear which was
to ensure that the recording of the first information should be
the starting point of any investigation by the police. The
purpose of registering FIR is to set the machinery of criminal
investigation into motion, which culminates with filing of the
police report and only after registration of FIR, beginning of
11investigation in a case, collection of evidence during
investigation and formation of the final opinion is the
sequence which results in filing of a report under Section 173
of the Code. In George and Others vs. State of Kerala and
Another (1998) 4 SCC 605, it has been held that the
investigating officer is not obliged to investigate, at the stage of
inquest, or to ascertain as to who were the assailants. A
similar view has been taken in Suresh Rai and Others vs.
State of Bihar (2000) 4 SCC 84.
11) In this view of the matter, Sections 174 and 175 of the
Code afford a complete Code in itself for the purpose of
“Inquiries” in cases of accidental or suspicious deaths and are
entirely distinct from the “investigation” under Section 157 of
the Code wherein if an officer in-charge of a police station has
reason to suspect the commission of an offence which he is
empowered to investigate, he shall proceed in person to the
spot to investigate the facts and circumstances of the case. In
the case on hand, an inquiry under Section 174 of the Code
was convened initially in order to ascertain whether the death
is natural or unnatural. Learned senior counsel for the
12appellants claims that the earlier information regarding
unnatural death amounted to FIR under Section 154 of the
Code which was investigated by the police and thereafter the
case was closed. On a careful scrutiny of materials on record,
the inquiry which was conducted for the purpose of
ascertaining whether the death is natural or unnatural cannot
be categorized under information relating to the commission of
a cognizable offence within the meaning and import of Section
154 of the Code. On information received by P.S. Mulana, the
police made an inquiry as contemplated under Section 174 of
the Code. After holding an inquiry, the police submitted its
report before the sub-Divisional Magistrate, Ambala stating
therein that it was a case of hanging and no cognizable offence
is found to have been committed. In the report, it was also
mentioned that the father of the deceased-R.P. Sharma (PW-1)
does not want to take any further action in the matter. In view
of the above discussion, it clearly goes to show that what was
undertaken by the police was an inquiry under Section 174 of
the Code which was limited to the extent of natural or
unnatural death and the case was closed. Whereas, the
condition precedent for recording of FIR is that there must be
an information and that information must disclose a
cognizable offence and in the case on hand, it leaves no matter
of doubt that the intimation was an information of the nature
contemplated under Section 174 of the Code and it could not
be categorized as information disclosing a cognizable offence.
Also, there is no material to show that the police after
conducting investigation submitted a report under Section 173
of the Code as contemplated, before the competent authority,
which accepted the said report and closed the case.
12) In view of the above, we are of the opinion that the
investigation on an inquiry under Section 174 of the Code is
distinct from the investigation as contemplated under Section
154 of the Code relating to commission of a cognizable offence
and in the case on hand there was no FIR registered with the
P.S. Mulana neither any investigation nor any report under
Section 173 of the Code was submitted. Therefore, challenge
to impugned FIR under Crime No. 194 of 2005 registered by
P.S. Bhilai Nagar could not be assailed on the ground that it
was second FIR in the garb of which investigation or fresh
investigation of the same incident was initiated.
Manoj Kumar Sharma & Ors. .... Appellant(s)
State of Chhattisgarh & Anr. .... Respondent(s)

Dated:AUGUST 23, 2016.
R.K. Agrawal, J.
Citation:AIR 2016 SC 3930
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What are conditions necessary for cancellation of bail?

It is quite well settled that the parameter for grant of bail
and cancellation of bail are entirely different. Bail granted
under Section 439(1) of the Cr.P.C. can be cancelled where
(i) the accused misuses his liberty by indulging in similar
criminal activity, (ii) interferes with the course of
investigation, (iii) attempts to tamper with evidence or
witnesses, (iv) threatens witnesses or indulges in similar
activities which would hamper smooth investigation, (v)
there is likelihood of his fleeing to another country, (vi)
attempts to make himself scarce by going underground or
becoming unavailable to the investigating agency, (vii)
attempts to place himself beyond the reach of his surety
etc. It is also well settled that even if two views are possible,

once the bail has been granted, it should not be cancelled
 Cr.M.P.No. 469 of 2015
 Savita Khande 
 State Of Chhattisgarh 
Hon'ble Shri Justice Sanjay K. Agrawal

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