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Vol-III
Part-4
April, 2008
SUPREME COURT CITATIONS
2008 CRI. L.J. 1599
Suresh Nanda Vs. C.B.I.
Criminal P.C. (2 of 1974), Ss.102, 104, 165 – Passports Act (15 of 1967),
S.10 – Power of Police to seize property – Does not extend to impounding of passport –
Even Court cannot impound passport – Provisions of Passports Act prevail over Criminal
P.C. – ‘Seize’ and ‘impounding’ – Convey different meaning.
There is a difference between seizing of a document and impounding a document.
A seizure is made at a particular moment when a person or authority takes into his
possession some of property which was earlier not in his possession. Thus, seizure is
done at a particular moment of time. However, if after seizing of a property or document
the said property or document is retained for some period of time, then such retention
amounts to impounding of the property/or document.
2008 CRI.L.J. 1604
Sudesh Kumar Vs. State of Uttarakhand
(A) *****
(B) Probation of Offenders Act (20 of 1958), S.6 – Benefit of probation –
Availability – Relevant date to determine age of accused – Is date of imposition of
punishment by Trial Court – Not date of offence.
AIR 1983 SC 654, Held per incuriam
Juvenile Justice Act (1986), S.22
Juvenile Justice (Care and Protection of Children) Act (2000), S.2(i)
48
Section 6 of the Act would apply to the accused who is under 21 years of
age on the date of imposition of punishment by the trial Court and not on the date of
commission of the offence. If on the date of the order of conviction and sentence by the
trial Court the accused is below 21 years of age the provisions of Section 6 of the Act
applies in full force.
AIR 1983 SC 654, Held per incuriam.
(Para 22)
The object and purpose of the Probation of Offenders Act, 1958 for applying the
relevant provisions to the accused are different and cannot be said in pari materia with
the Juvenile Justice Act, 1986 and the Juvenile Justice ( Care and Protection of Children)
Act, 2000 . The Court would not construe a Section of a statute with reference to that of
another statute unless the latter is in pari materia with the former. Therefore, a decision
made on a provision of a different statute will be of no relevance unless underlying
objects of the two statutes are in pari materia. The decision interpreting various
provisions of one statute will not have the binding force while interpreting the provisions
of another statute.
(Para 22)
2008 CRI.L.J. 1603
Om Prakash Vs. State of U.P.
Railway property (Unlawful Possession) Act (29 of 1966) S.3 – Theft of
railway property – Unlawful possession – Truck found to be loaded with cast iron Grade
I – Accused described as contractor was present near truck – On being asked to unload
stolen iron he got it unloaded through his labourers – Plea of accused that he was only a
labourer – Not tenable - Accused can be said to be in unlawful possession of cast iron
Grade I – Conviction under S.3, proper.
49
(2008)3 Supreme Court Cases 686
Pogula Komuraiah Vs. State of Andhra Pradesh Represented by the Public
Prosecutor
Criminal Trial – Parity between co-accused – Appellant seeking parity with
appellants in another appeal which was partly allowed, on grounds of similar footing,
being their co-accused in the case before trial court, praying for disposed of present
appeal on similar terms – Held, on facts, the findings recorded in the other appeal are
applicable to the present appeal – Accordingly, appellant’s conviction altered to S. 304
Part I r/w S. 149 IPC, as was done in the case of appellants in the other appeal – Penal
Code, 1860, Ss. 302 /149 or Ss. 304 Part I/149.
(2008) 3 Supreme Court Cases 709
Babu Ram and Others Vs. State of Punjab
(A) *******
(B)Criminal Trial - prosecution – Omission on part of prosecution to explain
injuries on accused – Held, omission assumes much greater important where the evidence
consists of interested or inimical witnesses or where the defence gives a version which
competes in probability with that of the prosecution version.
(C) *******
(2008) 3 Supreme Court Cases 748
T.O. Anthony Vs. Karvarnan and Others
(A) Motor Vehicles Act, 1988 – Ss. 166 and 173 - Negligence – Contributory
or composite – Appellant, a driver working with Kerala SRTC had a head-on collision
with a private bus driven by first respondent resulting in fracture of right femur of
appellant – Tribunal held that as the accident occurred due to contributory and composite
negligence of drivers of both the vehicles, liability should be fifty-fifty (that is 50%
each) and from the total award it deducted 50% therefrom for the appellant’s negligence
– High Court did not disturb the finding regarding negligence but increased the
compensation – Held, Tribunal, fell into a common error committed by several tribunals,
that composite negligence and contributory negligence are one and same – In an accident
involving two or more vehicles, where a third party(other than the drivers and/or owners
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of the vehicles involved) claims damages for loss or injuries, it is said that compensation
is payable in respect of the composite negligence of the drivers of those vehicles – In
case of contributory negligence when a person suffers injury partly due to negligence on
part of another person or person and partly as a result of his own negligence, then
negligence on the part of injured which contributed to the accident is referred to as his
contributory negligence – Words and Phrases – “Composite negligence”. “contributory
negligence”.
(B) *******
(2008) 3 MLJ 287 (SC)
Usha Devi Vs. Rijwan Ahamd and Others
Code of Civil Procedure ( 5 of 1908), Order 6, Rule 17 - Amendment of
pleadings – Proposed amendment related to correction of description of suit property in
plaint – Petition rejected by trial Court invoking due diligence clause in proviso to Order
6 rule 17 of C.P.C. – Writ petition also dismissed affirming order of trial Court – Appeal
– Appeal closer on facts to decision in Sajjan Kumar V. Ram Kishan (2005) 13 SCC 89 –
Following said decision in Sajjan Kumar case (supra), prayer for amendment in present
appeal should also be allowed – Appeal allowed.
RATIONES DECIDENDI
I. “Though there was lack of due diligence on the part of the
plaintiff inasmuch as the wrong description of the suit property
was pointedly brought up by the defendants not only in the
written statement but also in course of the proceedings of the
Case, the prayer for amendment related to correction of
description of suit property in plaint deserves to be allowed, in
view of the decision in Sajjan Kumar V. Ram Kishan (2005) 13
SCC 89 which is closer on facts wherein it was held that when
the proposed amendment was necessary for the purpose of
bringing to the fore the real question in controversy between the
parties and the refusal to permit amendment would create
needless complications at the stage of execution the amendment
should be allowed”.
II. “In order to allow the prayer for amendment, the merit of the
amendment is hardly a relevant consideration and it will be
open to the defendants to raise their objection in regard to the
amended plaint by making any corresponding amendments in
their written statement”.
51
(2008) 1 MLJ (Crl) 1353 (SC)
Ramesh Dass Vs. Raghu Nath and Others
Code of Criminal Procedure, 1973 (2 of 1974), Sections 360 and 361 –
Probation of offenders Act (20 of 1958), Sections 3, 4 and 12 - General Clauses Act
(120 of 1867), Section 8(1) – Applicability of Sections 3 and 4 of Probation of Offenders
Act or Sections 360 and 361 Code of Criminal Procedure, 1973 – Question as to –
Enforcement of Probation of Offenders Act in some particular area excludes the
applicability of Section 350 Code of Criminal Procedure, 1973 in that area – Where the
provisions of Probation of Offenders Act have brought into force, the provisions of
Section 360 of Code of Criminal Procedure, 1973 are wholly inapplicable – Provisions
under Probation of Offenders Act have paramountancy of their own in the respective
areas where they are applicable – Accused was convicted for offence under Section 326
Indian Penal Code (45 of 1860), which carries life imprisonment, hence Section 360 of
Code of Criminal Procedure, 1973 has no application – High Court directed release of
accused persons on probation under Section 360 of Code of Criminal Procedure, 1973 –
Cannot be maintained – Matter remitted back to High Court to consider about the non-
applicability of Section 360 Code of Criminal Procedure, 1973 and application of
Probation of Offenders Act both.
(2008) 1 MLJ (Crl) 1450 (SC)
Kulwant Singh @ Kalbansh Singh Vs. State of Bihar
(A) Indian Penal Code (45 of 1860), Section 109 - Abetment Criminal liability
– What is principal of second degree – Extent of liability of Crime – Scope of Abetment
by instigation, inducement – Essential elements – Explained of.
(B) ****
(C) *****
52
RATIONES DECIDENDI
I. “ One who aids abets perpetrator of a crime at very time crime is
committed, is a principal of second degree and Section 100 Indian
Penal Code, 1860 applies”.
II. “Section 109 Indian Penal Code, 1860 applies even if the abettor
is not present at the scene of crime”.
III. “Active abetment at the time of committing the offence is covered
by Section 109 and Section 114 Indian Penal Code, 1860 is clearly
intended for an abetment previous to the actual commission of the
crime, that is before the first steps have been to commit it”.
IV. “There is no proposition is law that relatives are to be treated as
untruthful witnesses. On the contrary, reason has to be shown
when a plea of partiality is raised to show that the witnesses had
reason to shield the actual culprit and falsely implicate the accused”.
2008-2-L.W. 321
State of Punjab & another Vs. Jalour Singh & Others
Legal Services Authorities Act (1987), Section 19,20,22/Duty of Lok Adalats,
Motor Vehicles Act (1988), Sections 164,
Constitution of India, Article 226/227 - It is evident from the Act that Lok
Adalats have no adjudicatory or judicial functions – Their functions relate purely to
conciliation – Lok Adalat determines a reference on the basis of a compromise or
settlement between the parties at its instance, and put its seal of confirmation by making
an award in terms of the compromise or settlement.
When the Lok Adlat is not able to arrive at a settlement or compromise, no award
is made and the case record is returned to the court from which the reference was
received, for disposal in accordance with law.
No Lok Adalat has the power to “hear” parties to adjudicate cases as a court does
– ‘Award’ of the Lok Adalat does not mean any independent verdict or opinion arrived at
by any decision making process – Making of the award is merely an administrative act of
incorporating the terms of settlement or compromise agreed by parties in the presence of
the Lok Adalat, in the form of an executable order under the signature and seal of the Lok
Adalat.
53
Observation made by Supreme Court that they are “rather dismayed at the manner
in which the entire matter has been dealt with, undermining the very prupose and object
of Lok Adalats – At every stage the Lok Adalat and the High Court have acted in a
manner contrary to law in this case”.
It is noticed by the Supreme Court that many sitting or retired Judges, while
participating in Lok Adalats as members, tend to conduct Lok Adalats like Courts, by
hearing parties, and imposing their views as to what is just and equitable, on the parties –
Sometimes they get carried away and proceed to pass orders on merits, as in this case,
even though there is no consensus or settlement – Endeavour and effort of the Lok
Adalats should be to guide and persuade the parties, with reference to principles of
justice, equity and fair play to compromise and settle the dispute by explaining the pros
and cons, strength and weaknesses, advantages and disadvantages of their respective
claims.
2008-2-L.W. 336
Samira Kohli Vs. Dr. Prabha Manchanda & another
There was no consent by the appellant for performing hysterectomy and salpingo-
oo-pherectomy, and performance of such surgery was an unauthorized invasion and
interference with appellant’s body which amounted to a tortuous act of assault and
battery and therefore a deficiency in service – But, there are several mitigating
circumstances – Respondent did it in the interest of the appellant – Appellant was already
44 years old and was having serious menstrual problems, and the respondent thought that
by surgical removal of uterus and ovaries, she was providing permanent relief.
It is also possible that the respondent thought that the appellant may approve the
additional surgical procedure when she regained consciousness and the consent by
appellant’s mother gave her authority.
This is a case of respondent acting in excess of consent but in good faith and for
the benefit of the appellant.
54
On the facts and circumstances, interests of justice would be served if the
respondent is denied the entire free charged for the surgery and in addition, directed to
pay Rs.25,000 as compensation for the unauthorized AH-BSO surgery to the appellant,
Plus costs and interest.
HIGH COURT CITATIONS
(2008) 3 MLJ 194
P.V. Arumugam Vs. Gurusamy and Others
Code of Civil Procedure (5 of 1908), Sections 24 and 151 - Transfer of Suit –
Question of Joint Trial or simultaneous Trial – Relevant factors – One suit filed for
declaring a sale deed as null and void – Other suit filed for recovery of money – Both
suits filed on the basis of the same promissory note – It cannot be said that the cause of
action for both the suits are different – Transfer of suit ordered – Joint trial is not
necessary – Both suits can be simultaneously tried – Revision Allowed.
(2008) 3 MLJ 1
Wipro Limited rep. by its Legal Manager Vishal Mittal and Another Vs.
Oushadha Chandrika Ayurvedic India (P) Limited, rep. by its Managing
Director K.S. Kochumon, Irinjalakuda and Others
(A) ******
(B) Words and Phrases – “ Carries on business” – The term “ Carries on business”
is not confined to only principal place of business. Wherever there is a business activity
be it the principal place or branch or branches the party is said to carry on business in all
such places.
55
(2008) 3 MLJ 371
C.E. Sulochana and Others Vs. E.C. Sathyanarayana Reddy
(A)Code of the Civil Procedure ( 5 of 1908) – Order 7, Rule ,
Section 11 – Suit for partition and separate possession – Question whether the suit
property is joint family property or not, was already decided in the earlier suit – Plaintiff
having raised the said plea in the earlier suit, cannot re-agitate the issue – If the same
issue is sought to be re-agitated, it would amount to abuse of process of Court – Court has
the power to stop such proceedings summarily and prevent the fine of the public and the
Court from being wasted – Such discretionary power has to be exercised with
circumspection – Present suit is misconceived – Plaint is liable to be rejected –
Application allowed.
(B)*****
(C)******
(2008) 3 MLJ 320
M. Venkatachalam and Others Vs. N. Palanisamy Thevar
Tamil Nadu Buildings (Lease and Rent Control) Act (18 of 1960), Sections
10(2)(i), 10(1) and 25 – Eviction petition on the grounds of willful default and denial of
title – Eviction petition allowed by Rent Controller and order confirmed by Appellate
Authority – Revisions by tenant – Purchaser of property, is the landlord – Tenant pleaded
he had entered into an agreement of sale with original landlord and had obtained a decree
for specific performance – Decree for specific performance set aside in appeal and no
document produced to show that any appeal against the same was pending – Tenant is
obliged to pay the rent – Such obligation is not merely contractual but also statutory –
Tenant has deliberately failed to pay the rent – He has set up a false plea that the landlord
has no title – No perversity in the concurrent findings – Revisions dismissed.
56
(2008) 3 MLJ 649
K.R. Abirami Vs. Kumbakonam Municipality, rep. by its Executive
Authority, Commissioner, Kumbakonam Town
(A)********
(B) Code of Civil Procedure ( 5 of 1908), Section 9 – Tamil Nadu District
Municipalities Act (5 of 1920) – Jurisdiction of Civil Court – Municipality – Property
tax – Assessment – Non-compliance in substance and effect with Act – Suit challenging
assessment maintainable.
(2008) 3 MLJ 638
P. Retnaswamy Vs. A. Raja and Another
(A)*****
(B)Transfer of Property Act (4 of 1882), Section 54 – “Sale” – Ingredients of
Sale is a transfer of property for consideration –Merely became a property worth several
thousands of rupees was sold away for a few hundred rupees, the same cannot be
challenged on the premise, that the same consideration is inadequate – OSA dismissed.
RATIONES DECIDENDI
I. “As per Section 19(b) of the Specific Relief Act, 1963, a specific
performance of contract can be enforced not only against either
party thereto but also against any other person claiming under
him by a title arising subsequently to the contract, except a
transferee for value who has paid his money in good faith and
without notice of original contract”.
II. “The subsequent purchaser is entitled to impeach the validity
between his vendor and the alleged prior agreement holder”.
III. “Merely because a property worth several thousand of rupees
was sold away for a few hundred rupees by a person for his
own reasons, the same cannot be challenged on the premise
that the sale consideration is inadequate or on the ground
of under valuation. Inadequate or low sale consideration,
does not render the contract of sale, void or illegal”.
57
(2008) 3 MLJ 695
Shobana Vs. Sundararaj and Others
Indian Evidence Act (1 of 1872) – Adoption – Factum of – Contention that
plaintiff was adopted by Chellammal – Both were not relatives – Chellammal remained
as a Christian till her last breath – Concept of adoption is alien to Christian law – Factum
of adoption, not proved – Second appeal dismissed.
By no stretch of imagination, the letters could be relied upon to prove the
fact of adoption. The plaintiff examined P.W.4 on her side, to say about the fact that she
was with Chellammal during her life time. But, in his cross-examination, he crucifies the
contention of the plaintiff by stating that Chellammal remained as a Christian till her last
breath and that her funeral ceremonies were conducted by salvation army priest of
Ganagarammam Village and that the plaintiff was also a Christian. The concept of
adoption is alien to Christian Law.
Even though the third defendant claims that she was adopted by Chellammal and
in case if she does not prove the said allegation that will not clothe the plaintiff with any
rights to get reliefs as prayed for.
(2008) 3 MLJ 796
P. Sampoornam and Others Vs. L.T. Somasundaram and Others
(A) Specific Relief Act (47 of 1963), Section 20 – Specific performance
Discretion of Court – The relief of specific performance discretionary relief and the
Courts have to exercise their discretion on sound and reasonable reasons – Even if a
doubt arises whether it is probable or possible that an agreement of sale would have been
executed at all the discretionary relief shall not be granted.
(B)*******
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RATIONES DECIDENDI
I. “The relief of specific performance is a discretionary relief. The
Courts have to exercise the discretion on sound and justifiable
reasons”.
II. “In a suit for specific performance, the discretionary relief
could be granted only if the plaintiff makes out a case, that too a
strong case for exercising the discretion by the Courts. Even if a
doubt arises whether it is probable or possible that an agreement
of sale would have been executed at all, the discretionary relief
shall not be granted”.
(2008) 3 MLJ 657
J. Parthiban and Others Vs. State of Tamil Nadu, rep. by its Secretary to
Government, Transport Deparment, Chennai and Others.
(A) ****
(B) ****
(C) Words and Phrases – “ Laws for the time being in force” - The
phraseology “ laws for the time being in force” would necessarily mean laws in force
from time-to-time and not laws in force only at a fixed point of time. The expression “for
the time being” denotes time indefinite and refers to indefinite state of facts which will
arise in future and which may vary from time-to-time.
(2008) 3 MLJ 8211
M.Somasundaram and Another Vs. District Collector-cum-Accommodation
Controller, Chennai and Others
(A) Code of Civil Procedure (5 of 1908), Order7 Rule 11 – Rejection of
plaint – Doctrine of re-litigation and abuse of process of Court - One of the most abuse
of process of Court is re-litigation – Re-litigation may or may not be barred by
resjudicata, but when the same issue is sought to be again re agitated, it amounts to
abuse of process of Court – The present case is demonstrably a case where machinery of
the Court is being used by the plaintiffs to squat on the property by litigating the matter
again and again – Different suits and other proceedings were instituted by the plaintiffs
and they were withdrawn one after another even without leave of the Court – Records
reveal that those proceedings are vexatious – Held, the present suit is hit by Doctrine of
re-litigation and abuse of process of Court – Plaint ordered to be rejected.
59
(B) Code of Civil Procedure (5 of 1908), Order 2 Rule 2 - In Order to
attract the bar under Order 2 Rule 2 the earlier suit should be founded on same cause of
action on which the subsequent suit is based, and if in the earlier suit, the plaintiff has
omitted to sue in respect of or intentionally relinquished any portion of his claim, he will
not subsequently be entitled to sue in respect of the portion of his claim be omitted or
relinquished.
In order to make Order2, Rule 2 applicable the defendant must satisfy the
following three conditions:
(a) The previous and second suit must arise out of the same cause of action.
(b) Both the suits must be between the same parties; and
(c) The earlier suit must have been decided on merits.
In order to attract the bar of Order 2, Rule 2 the earlier suit should be founded on
the same cause of action on which the subsequent suit is based, and if in the earlier suit,
the plaintiff has omitted to sue in respect of or intentionally re linquished any portion of
his claim, he will not subsequently be entitled to sue in respect of the portion of his claim
so omitted or relinquished.
(A) Code of Civil Procedure ( 5 of 1908), Order 2 Rule 2 –
Plaintiff can seek leave of the Court under Order 2, Rule 2, Sub Rule(3) Civil procedure
Code at any time before the date of decree in the first suit – Permission relinquishing the
relief and reserving right to file another suit should be obtained in the earlier suit and not
in the subsequent suit on same allegation and for same relief is barred.
60
The plaintiff can seek of the Court under Order 2, Rule 2, Sub-Rule (3) C.P.C. at
any time before the date of decree in the first suit and the Court would grant leave
provided the plaintiff is seeking any relief omitted and not in respect of any portion of the
claim which was deliberately omitted or intentionally relinquished at the time of
institution of the first suit. Permission relinquishing the relief and reserving right to file
another suit ought to have obtained in the earlier suit and not in the subsequent suit.
(B) Code of Civil Procedure (5 of 1908), Order 23, Rule 1(3) –
Withdrawal of Suits – Permission to withdraw the suit ought to have been obtained in
earlier suit by filing application under Order 23 Rule 1(3) C.P.C. – When a suit is
withdrawn without leave to file a fresh suit, filing of second suit on the same allegations
and for same relief is barred – The consequence of not obtaining permission to bring a
fresh suit at the time of withdrawal of the suit is that it takes away the right of the
plaintiff to bring a fresh suit.
Permission to withdraw the suit ought to have been obtained in the earlier suit by
filing application under Order 23, Rule 1(3) C.P.C . When a suit is withdraw without
leave to file a fresh suit, filing of second suit on the same allegations and for same relief
is barred. The consequence of not obtaining permission to bring a fresh suit at the time of
withdrawal of the suit is that it takes away the right of the plaintiff to bring a fresh suit.
(2008) 3 MLJ 855
M. Palani Vs. Meenashi
Protection of Women from Domestic Violence Act, 2005, Sections,
2,20,25 and 26 - Suit before the family Court to declare that the parties are not married
to each other – Claim for maintenance by the defendant – Maintenance awarded – Order
61
challenged in revision – Pleadings show that there was domestic relationship between the
parties – Application seeking maintenance, is sustainable – No report from the Protection
Officer, is required – Civil revision petition dismissed.
The referred provision makes it clear that any woman who is or has been in a
domestic relationship with the respondent can make a complaint under the provisions of
the said Act. Further the “domestic relationship” thus defined as a relationship between
two persons, who live or have, at any point of time, lived together. The provision does
not say that they should have lived together for a particular period. Even as per the case
of the petitioner, he had consensual sex with her, but there was no promise to marry her.
Thus, the averments made in the plaint as well as in the counter affidavit will make it
very clear that the petitioner and the respondent had a close relationship and had sex. As
stated already, the Act does not contemplate that the petitioner and the respondent should
live or have lived together for a particular period or for few days. From the averments
made by the petitioner in his plaint and in his counter affidavit, one can infer that both of
them seem to have shared household and lived together at least at the time having sex by
them. From the discussions made above, the Court is unable to accept the contention of
the learned counsel appearing for the petitioner that the application filed by the
respondent under the provisions of the said Act is not maintainable.
Section 12 contemplates the application to Magistrate and the proviso
contemplates an order passed by Magistrate under the provisions after he receives a
report from the Protection Officer. The proviso to Section 12 reads that the Magistrate
shall take in to consideration any domestic incident report received by him from the
Protection Officer or the service provider. Such proviso has not been incorporated in
Section 26 of the Act. Thus, a conjoint reading of both Sections 12 and 26 will make it
clear that when a Magistrate passes an order, he shall receive the report from the
62
Protection Officer but whereas such a report is not contemplated, when an order is
passed by the Civil Court or by the Family Court. Hence, Court is unable to accept the
contention of the learned counsel appearing for the petitioner that since the learned judge
of the Family Court has not obtained report of the Protection Officer, the order passed by
him is not maintainable.
(2008) 3 MLJ 221
Vimala Vs. State of Tamil Nadu
Constitution of India (1950), Articles 21, 2(5) - Personal Liberty –
compensation for illegal custody – Detenu had undergone the entire sentence pending
appeal against conviction – Released from the prison – Ultimately, criminal appeals filed
by the detenu and other co-accused dismissed - Fresh Warrant issued to re-arrest the
detenu even though he had undergone the sentence – No justification to issue fresh
warrant to arrest the detenu, who had undergone the sentence – Custody of the detenu is
illegal – Token compensation of Rs. 5,000/- awarded.
(2008) 3 MLJ (Crl) 1236
Dharumiah @ Dharumaiyan Vs. State rep. by Inspector of Police
Kariyapattinam Police Station, Tiruvarur District
Indian Penal Code (45 of 1860), Section 302 - Murder case – Accused
murdered his two wives – Motive – Accused wanted to dispose of his lands He
approached the Village Administrative Officer for chitt – Knowing that both the deceased
requested the Village Administrative Officer not to give chitta as they had objected to the
sale of the land - Accused inflicted indiscriminate cut injuries to both the deceased –
P.W. 3 is the daughter of the first wife and P.W.4 is the son of the second wife witnesses
the occurrence – Case registered – Trial Court convicted and imposed the imprisonment
for two counts – Appeal filed – Statement of the accused recorded under Section 164
Code of Criminal Procedure, 1973 (2 of 1974) – Mandatory procedure of certifying the
statement under Section 164(4) – Failure on the part of the Judicial Magistrate to certify
it – Effect of – Accused was in judicial custody, therefore, investigating officer had no
occasion to ascertain the willingness of the accused to give a voluntary statement as
shown in his affidavit – Cannot vitiate – Requisition for recording the statement under
Section 164 Code of Criminal Procedure, 1973 is not mandatory in all cases – It is not a
pre-requisite condition under Section 164(1) Code of Criminal Procedure, 1973 when the
accused is in judicial custody – Line of distinction drawn to record the confession
statement from an accused who is in police custody or in judicial custody – Obligation to
verity whether to confession statement is voluntarily made or not and certifying the
statement as per Section 164(4) Code of Criminal Procedure, 1973 will apply when the
request for recording the statement of an accused who is in police custody – Object is to
ensure that the accused should not be pressurized or forced – In the present case, the
accused was produced from police custody for recording the statement under Section 164
Code of Criminal Procedure, 1973 – Procedural defect of non-compliance of Section
164(4) Code of Criminal Procedure, 1973 may not affect the evidentiary value –
Statement made voluntarily – Conviction upheld – Appeal dismissed.
********
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Print Page
Vol-III
Part-4
April, 2008
SUPREME COURT CITATIONS
2008 CRI. L.J. 1599
Suresh Nanda Vs. C.B.I.
Criminal P.C. (2 of 1974), Ss.102, 104, 165 – Passports Act (15 of 1967),
S.10 – Power of Police to seize property – Does not extend to impounding of passport –
Even Court cannot impound passport – Provisions of Passports Act prevail over Criminal
P.C. – ‘Seize’ and ‘impounding’ – Convey different meaning.
There is a difference between seizing of a document and impounding a document.
A seizure is made at a particular moment when a person or authority takes into his
possession some of property which was earlier not in his possession. Thus, seizure is
done at a particular moment of time. However, if after seizing of a property or document
the said property or document is retained for some period of time, then such retention
amounts to impounding of the property/or document.
2008 CRI.L.J. 1604
Sudesh Kumar Vs. State of Uttarakhand
(A) *****
(B) Probation of Offenders Act (20 of 1958), S.6 – Benefit of probation –
Availability – Relevant date to determine age of accused – Is date of imposition of
punishment by Trial Court – Not date of offence.
AIR 1983 SC 654, Held per incuriam
Juvenile Justice Act (1986), S.22
Juvenile Justice (Care and Protection of Children) Act (2000), S.2(i)
48
Section 6 of the Act would apply to the accused who is under 21 years of
age on the date of imposition of punishment by the trial Court and not on the date of
commission of the offence. If on the date of the order of conviction and sentence by the
trial Court the accused is below 21 years of age the provisions of Section 6 of the Act
applies in full force.
AIR 1983 SC 654, Held per incuriam.
(Para 22)
The object and purpose of the Probation of Offenders Act, 1958 for applying the
relevant provisions to the accused are different and cannot be said in pari materia with
the Juvenile Justice Act, 1986 and the Juvenile Justice ( Care and Protection of Children)
Act, 2000 . The Court would not construe a Section of a statute with reference to that of
another statute unless the latter is in pari materia with the former. Therefore, a decision
made on a provision of a different statute will be of no relevance unless underlying
objects of the two statutes are in pari materia. The decision interpreting various
provisions of one statute will not have the binding force while interpreting the provisions
of another statute.
(Para 22)
2008 CRI.L.J. 1603
Om Prakash Vs. State of U.P.
Railway property (Unlawful Possession) Act (29 of 1966) S.3 – Theft of
railway property – Unlawful possession – Truck found to be loaded with cast iron Grade
I – Accused described as contractor was present near truck – On being asked to unload
stolen iron he got it unloaded through his labourers – Plea of accused that he was only a
labourer – Not tenable - Accused can be said to be in unlawful possession of cast iron
Grade I – Conviction under S.3, proper.
49
(2008)3 Supreme Court Cases 686
Pogula Komuraiah Vs. State of Andhra Pradesh Represented by the Public
Prosecutor
Criminal Trial – Parity between co-accused – Appellant seeking parity with
appellants in another appeal which was partly allowed, on grounds of similar footing,
being their co-accused in the case before trial court, praying for disposed of present
appeal on similar terms – Held, on facts, the findings recorded in the other appeal are
applicable to the present appeal – Accordingly, appellant’s conviction altered to S. 304
Part I r/w S. 149 IPC, as was done in the case of appellants in the other appeal – Penal
Code, 1860, Ss. 302 /149 or Ss. 304 Part I/149.
(2008) 3 Supreme Court Cases 709
Babu Ram and Others Vs. State of Punjab
(A) *******
(B)Criminal Trial - prosecution – Omission on part of prosecution to explain
injuries on accused – Held, omission assumes much greater important where the evidence
consists of interested or inimical witnesses or where the defence gives a version which
competes in probability with that of the prosecution version.
(C) *******
(2008) 3 Supreme Court Cases 748
T.O. Anthony Vs. Karvarnan and Others
(A) Motor Vehicles Act, 1988 – Ss. 166 and 173 - Negligence – Contributory
or composite – Appellant, a driver working with Kerala SRTC had a head-on collision
with a private bus driven by first respondent resulting in fracture of right femur of
appellant – Tribunal held that as the accident occurred due to contributory and composite
negligence of drivers of both the vehicles, liability should be fifty-fifty (that is 50%
each) and from the total award it deducted 50% therefrom for the appellant’s negligence
– High Court did not disturb the finding regarding negligence but increased the
compensation – Held, Tribunal, fell into a common error committed by several tribunals,
that composite negligence and contributory negligence are one and same – In an accident
involving two or more vehicles, where a third party(other than the drivers and/or owners
50
of the vehicles involved) claims damages for loss or injuries, it is said that compensation
is payable in respect of the composite negligence of the drivers of those vehicles – In
case of contributory negligence when a person suffers injury partly due to negligence on
part of another person or person and partly as a result of his own negligence, then
negligence on the part of injured which contributed to the accident is referred to as his
contributory negligence – Words and Phrases – “Composite negligence”. “contributory
negligence”.
(B) *******
(2008) 3 MLJ 287 (SC)
Usha Devi Vs. Rijwan Ahamd and Others
Code of Civil Procedure ( 5 of 1908), Order 6, Rule 17 - Amendment of
pleadings – Proposed amendment related to correction of description of suit property in
plaint – Petition rejected by trial Court invoking due diligence clause in proviso to Order
6 rule 17 of C.P.C. – Writ petition also dismissed affirming order of trial Court – Appeal
– Appeal closer on facts to decision in Sajjan Kumar V. Ram Kishan (2005) 13 SCC 89 –
Following said decision in Sajjan Kumar case (supra), prayer for amendment in present
appeal should also be allowed – Appeal allowed.
RATIONES DECIDENDI
I. “Though there was lack of due diligence on the part of the
plaintiff inasmuch as the wrong description of the suit property
was pointedly brought up by the defendants not only in the
written statement but also in course of the proceedings of the
Case, the prayer for amendment related to correction of
description of suit property in plaint deserves to be allowed, in
view of the decision in Sajjan Kumar V. Ram Kishan (2005) 13
SCC 89 which is closer on facts wherein it was held that when
the proposed amendment was necessary for the purpose of
bringing to the fore the real question in controversy between the
parties and the refusal to permit amendment would create
needless complications at the stage of execution the amendment
should be allowed”.
II. “In order to allow the prayer for amendment, the merit of the
amendment is hardly a relevant consideration and it will be
open to the defendants to raise their objection in regard to the
amended plaint by making any corresponding amendments in
their written statement”.
51
(2008) 1 MLJ (Crl) 1353 (SC)
Ramesh Dass Vs. Raghu Nath and Others
Code of Criminal Procedure, 1973 (2 of 1974), Sections 360 and 361 –
Probation of offenders Act (20 of 1958), Sections 3, 4 and 12 - General Clauses Act
(120 of 1867), Section 8(1) – Applicability of Sections 3 and 4 of Probation of Offenders
Act or Sections 360 and 361 Code of Criminal Procedure, 1973 – Question as to –
Enforcement of Probation of Offenders Act in some particular area excludes the
applicability of Section 350 Code of Criminal Procedure, 1973 in that area – Where the
provisions of Probation of Offenders Act have brought into force, the provisions of
Section 360 of Code of Criminal Procedure, 1973 are wholly inapplicable – Provisions
under Probation of Offenders Act have paramountancy of their own in the respective
areas where they are applicable – Accused was convicted for offence under Section 326
Indian Penal Code (45 of 1860), which carries life imprisonment, hence Section 360 of
Code of Criminal Procedure, 1973 has no application – High Court directed release of
accused persons on probation under Section 360 of Code of Criminal Procedure, 1973 –
Cannot be maintained – Matter remitted back to High Court to consider about the non-
applicability of Section 360 Code of Criminal Procedure, 1973 and application of
Probation of Offenders Act both.
(2008) 1 MLJ (Crl) 1450 (SC)
Kulwant Singh @ Kalbansh Singh Vs. State of Bihar
(A) Indian Penal Code (45 of 1860), Section 109 - Abetment Criminal liability
– What is principal of second degree – Extent of liability of Crime – Scope of Abetment
by instigation, inducement – Essential elements – Explained of.
(B) ****
(C) *****
52
RATIONES DECIDENDI
I. “ One who aids abets perpetrator of a crime at very time crime is
committed, is a principal of second degree and Section 100 Indian
Penal Code, 1860 applies”.
II. “Section 109 Indian Penal Code, 1860 applies even if the abettor
is not present at the scene of crime”.
III. “Active abetment at the time of committing the offence is covered
by Section 109 and Section 114 Indian Penal Code, 1860 is clearly
intended for an abetment previous to the actual commission of the
crime, that is before the first steps have been to commit it”.
IV. “There is no proposition is law that relatives are to be treated as
untruthful witnesses. On the contrary, reason has to be shown
when a plea of partiality is raised to show that the witnesses had
reason to shield the actual culprit and falsely implicate the accused”.
2008-2-L.W. 321
State of Punjab & another Vs. Jalour Singh & Others
Legal Services Authorities Act (1987), Section 19,20,22/Duty of Lok Adalats,
Motor Vehicles Act (1988), Sections 164,
Constitution of India, Article 226/227 - It is evident from the Act that Lok
Adalats have no adjudicatory or judicial functions – Their functions relate purely to
conciliation – Lok Adalat determines a reference on the basis of a compromise or
settlement between the parties at its instance, and put its seal of confirmation by making
an award in terms of the compromise or settlement.
When the Lok Adlat is not able to arrive at a settlement or compromise, no award
is made and the case record is returned to the court from which the reference was
received, for disposal in accordance with law.
No Lok Adalat has the power to “hear” parties to adjudicate cases as a court does
– ‘Award’ of the Lok Adalat does not mean any independent verdict or opinion arrived at
by any decision making process – Making of the award is merely an administrative act of
incorporating the terms of settlement or compromise agreed by parties in the presence of
the Lok Adalat, in the form of an executable order under the signature and seal of the Lok
Adalat.
53
Observation made by Supreme Court that they are “rather dismayed at the manner
in which the entire matter has been dealt with, undermining the very prupose and object
of Lok Adalats – At every stage the Lok Adalat and the High Court have acted in a
manner contrary to law in this case”.
It is noticed by the Supreme Court that many sitting or retired Judges, while
participating in Lok Adalats as members, tend to conduct Lok Adalats like Courts, by
hearing parties, and imposing their views as to what is just and equitable, on the parties –
Sometimes they get carried away and proceed to pass orders on merits, as in this case,
even though there is no consensus or settlement – Endeavour and effort of the Lok
Adalats should be to guide and persuade the parties, with reference to principles of
justice, equity and fair play to compromise and settle the dispute by explaining the pros
and cons, strength and weaknesses, advantages and disadvantages of their respective
claims.
2008-2-L.W. 336
Samira Kohli Vs. Dr. Prabha Manchanda & another
There was no consent by the appellant for performing hysterectomy and salpingo-
oo-pherectomy, and performance of such surgery was an unauthorized invasion and
interference with appellant’s body which amounted to a tortuous act of assault and
battery and therefore a deficiency in service – But, there are several mitigating
circumstances – Respondent did it in the interest of the appellant – Appellant was already
44 years old and was having serious menstrual problems, and the respondent thought that
by surgical removal of uterus and ovaries, she was providing permanent relief.
It is also possible that the respondent thought that the appellant may approve the
additional surgical procedure when she regained consciousness and the consent by
appellant’s mother gave her authority.
This is a case of respondent acting in excess of consent but in good faith and for
the benefit of the appellant.
54
On the facts and circumstances, interests of justice would be served if the
respondent is denied the entire free charged for the surgery and in addition, directed to
pay Rs.25,000 as compensation for the unauthorized AH-BSO surgery to the appellant,
Plus costs and interest.
HIGH COURT CITATIONS
(2008) 3 MLJ 194
P.V. Arumugam Vs. Gurusamy and Others
Code of Civil Procedure (5 of 1908), Sections 24 and 151 - Transfer of Suit –
Question of Joint Trial or simultaneous Trial – Relevant factors – One suit filed for
declaring a sale deed as null and void – Other suit filed for recovery of money – Both
suits filed on the basis of the same promissory note – It cannot be said that the cause of
action for both the suits are different – Transfer of suit ordered – Joint trial is not
necessary – Both suits can be simultaneously tried – Revision Allowed.
(2008) 3 MLJ 1
Wipro Limited rep. by its Legal Manager Vishal Mittal and Another Vs.
Oushadha Chandrika Ayurvedic India (P) Limited, rep. by its Managing
Director K.S. Kochumon, Irinjalakuda and Others
(A) ******
(B) Words and Phrases – “ Carries on business” – The term “ Carries on business”
is not confined to only principal place of business. Wherever there is a business activity
be it the principal place or branch or branches the party is said to carry on business in all
such places.
55
(2008) 3 MLJ 371
C.E. Sulochana and Others Vs. E.C. Sathyanarayana Reddy
(A)Code of the Civil Procedure ( 5 of 1908) – Order 7, Rule ,
Section 11 – Suit for partition and separate possession – Question whether the suit
property is joint family property or not, was already decided in the earlier suit – Plaintiff
having raised the said plea in the earlier suit, cannot re-agitate the issue – If the same
issue is sought to be re-agitated, it would amount to abuse of process of Court – Court has
the power to stop such proceedings summarily and prevent the fine of the public and the
Court from being wasted – Such discretionary power has to be exercised with
circumspection – Present suit is misconceived – Plaint is liable to be rejected –
Application allowed.
(B)*****
(C)******
(2008) 3 MLJ 320
M. Venkatachalam and Others Vs. N. Palanisamy Thevar
Tamil Nadu Buildings (Lease and Rent Control) Act (18 of 1960), Sections
10(2)(i), 10(1) and 25 – Eviction petition on the grounds of willful default and denial of
title – Eviction petition allowed by Rent Controller and order confirmed by Appellate
Authority – Revisions by tenant – Purchaser of property, is the landlord – Tenant pleaded
he had entered into an agreement of sale with original landlord and had obtained a decree
for specific performance – Decree for specific performance set aside in appeal and no
document produced to show that any appeal against the same was pending – Tenant is
obliged to pay the rent – Such obligation is not merely contractual but also statutory –
Tenant has deliberately failed to pay the rent – He has set up a false plea that the landlord
has no title – No perversity in the concurrent findings – Revisions dismissed.
56
(2008) 3 MLJ 649
K.R. Abirami Vs. Kumbakonam Municipality, rep. by its Executive
Authority, Commissioner, Kumbakonam Town
(A)********
(B) Code of Civil Procedure ( 5 of 1908), Section 9 – Tamil Nadu District
Municipalities Act (5 of 1920) – Jurisdiction of Civil Court – Municipality – Property
tax – Assessment – Non-compliance in substance and effect with Act – Suit challenging
assessment maintainable.
(2008) 3 MLJ 638
P. Retnaswamy Vs. A. Raja and Another
(A)*****
(B)Transfer of Property Act (4 of 1882), Section 54 – “Sale” – Ingredients of
Sale is a transfer of property for consideration –Merely became a property worth several
thousands of rupees was sold away for a few hundred rupees, the same cannot be
challenged on the premise, that the same consideration is inadequate – OSA dismissed.
RATIONES DECIDENDI
I. “As per Section 19(b) of the Specific Relief Act, 1963, a specific
performance of contract can be enforced not only against either
party thereto but also against any other person claiming under
him by a title arising subsequently to the contract, except a
transferee for value who has paid his money in good faith and
without notice of original contract”.
II. “The subsequent purchaser is entitled to impeach the validity
between his vendor and the alleged prior agreement holder”.
III. “Merely because a property worth several thousand of rupees
was sold away for a few hundred rupees by a person for his
own reasons, the same cannot be challenged on the premise
that the sale consideration is inadequate or on the ground
of under valuation. Inadequate or low sale consideration,
does not render the contract of sale, void or illegal”.
57
(2008) 3 MLJ 695
Shobana Vs. Sundararaj and Others
Indian Evidence Act (1 of 1872) – Adoption – Factum of – Contention that
plaintiff was adopted by Chellammal – Both were not relatives – Chellammal remained
as a Christian till her last breath – Concept of adoption is alien to Christian law – Factum
of adoption, not proved – Second appeal dismissed.
By no stretch of imagination, the letters could be relied upon to prove the
fact of adoption. The plaintiff examined P.W.4 on her side, to say about the fact that she
was with Chellammal during her life time. But, in his cross-examination, he crucifies the
contention of the plaintiff by stating that Chellammal remained as a Christian till her last
breath and that her funeral ceremonies were conducted by salvation army priest of
Ganagarammam Village and that the plaintiff was also a Christian. The concept of
adoption is alien to Christian Law.
Even though the third defendant claims that she was adopted by Chellammal and
in case if she does not prove the said allegation that will not clothe the plaintiff with any
rights to get reliefs as prayed for.
(2008) 3 MLJ 796
P. Sampoornam and Others Vs. L.T. Somasundaram and Others
(A) Specific Relief Act (47 of 1963), Section 20 – Specific performance
Discretion of Court – The relief of specific performance discretionary relief and the
Courts have to exercise their discretion on sound and reasonable reasons – Even if a
doubt arises whether it is probable or possible that an agreement of sale would have been
executed at all the discretionary relief shall not be granted.
(B)*******
58
RATIONES DECIDENDI
I. “The relief of specific performance is a discretionary relief. The
Courts have to exercise the discretion on sound and justifiable
reasons”.
II. “In a suit for specific performance, the discretionary relief
could be granted only if the plaintiff makes out a case, that too a
strong case for exercising the discretion by the Courts. Even if a
doubt arises whether it is probable or possible that an agreement
of sale would have been executed at all, the discretionary relief
shall not be granted”.
(2008) 3 MLJ 657
J. Parthiban and Others Vs. State of Tamil Nadu, rep. by its Secretary to
Government, Transport Deparment, Chennai and Others.
(A) ****
(B) ****
(C) Words and Phrases – “ Laws for the time being in force” - The
phraseology “ laws for the time being in force” would necessarily mean laws in force
from time-to-time and not laws in force only at a fixed point of time. The expression “for
the time being” denotes time indefinite and refers to indefinite state of facts which will
arise in future and which may vary from time-to-time.
(2008) 3 MLJ 8211
M.Somasundaram and Another Vs. District Collector-cum-Accommodation
Controller, Chennai and Others
(A) Code of Civil Procedure (5 of 1908), Order7 Rule 11 – Rejection of
plaint – Doctrine of re-litigation and abuse of process of Court - One of the most abuse
of process of Court is re-litigation – Re-litigation may or may not be barred by
resjudicata, but when the same issue is sought to be again re agitated, it amounts to
abuse of process of Court – The present case is demonstrably a case where machinery of
the Court is being used by the plaintiffs to squat on the property by litigating the matter
again and again – Different suits and other proceedings were instituted by the plaintiffs
and they were withdrawn one after another even without leave of the Court – Records
reveal that those proceedings are vexatious – Held, the present suit is hit by Doctrine of
re-litigation and abuse of process of Court – Plaint ordered to be rejected.
59
(B) Code of Civil Procedure (5 of 1908), Order 2 Rule 2 - In Order to
attract the bar under Order 2 Rule 2 the earlier suit should be founded on same cause of
action on which the subsequent suit is based, and if in the earlier suit, the plaintiff has
omitted to sue in respect of or intentionally relinquished any portion of his claim, he will
not subsequently be entitled to sue in respect of the portion of his claim be omitted or
relinquished.
In order to make Order2, Rule 2 applicable the defendant must satisfy the
following three conditions:
(a) The previous and second suit must arise out of the same cause of action.
(b) Both the suits must be between the same parties; and
(c) The earlier suit must have been decided on merits.
In order to attract the bar of Order 2, Rule 2 the earlier suit should be founded on
the same cause of action on which the subsequent suit is based, and if in the earlier suit,
the plaintiff has omitted to sue in respect of or intentionally re linquished any portion of
his claim, he will not subsequently be entitled to sue in respect of the portion of his claim
so omitted or relinquished.
(A) Code of Civil Procedure ( 5 of 1908), Order 2 Rule 2 –
Plaintiff can seek leave of the Court under Order 2, Rule 2, Sub Rule(3) Civil procedure
Code at any time before the date of decree in the first suit – Permission relinquishing the
relief and reserving right to file another suit should be obtained in the earlier suit and not
in the subsequent suit on same allegation and for same relief is barred.
60
The plaintiff can seek of the Court under Order 2, Rule 2, Sub-Rule (3) C.P.C. at
any time before the date of decree in the first suit and the Court would grant leave
provided the plaintiff is seeking any relief omitted and not in respect of any portion of the
claim which was deliberately omitted or intentionally relinquished at the time of
institution of the first suit. Permission relinquishing the relief and reserving right to file
another suit ought to have obtained in the earlier suit and not in the subsequent suit.
(B) Code of Civil Procedure (5 of 1908), Order 23, Rule 1(3) –
Withdrawal of Suits – Permission to withdraw the suit ought to have been obtained in
earlier suit by filing application under Order 23 Rule 1(3) C.P.C. – When a suit is
withdrawn without leave to file a fresh suit, filing of second suit on the same allegations
and for same relief is barred – The consequence of not obtaining permission to bring a
fresh suit at the time of withdrawal of the suit is that it takes away the right of the
plaintiff to bring a fresh suit.
Permission to withdraw the suit ought to have been obtained in the earlier suit by
filing application under Order 23, Rule 1(3) C.P.C . When a suit is withdraw without
leave to file a fresh suit, filing of second suit on the same allegations and for same relief
is barred. The consequence of not obtaining permission to bring a fresh suit at the time of
withdrawal of the suit is that it takes away the right of the plaintiff to bring a fresh suit.
(2008) 3 MLJ 855
M. Palani Vs. Meenashi
Protection of Women from Domestic Violence Act, 2005, Sections,
2,20,25 and 26 - Suit before the family Court to declare that the parties are not married
to each other – Claim for maintenance by the defendant – Maintenance awarded – Order
61
challenged in revision – Pleadings show that there was domestic relationship between the
parties – Application seeking maintenance, is sustainable – No report from the Protection
Officer, is required – Civil revision petition dismissed.
The referred provision makes it clear that any woman who is or has been in a
domestic relationship with the respondent can make a complaint under the provisions of
the said Act. Further the “domestic relationship” thus defined as a relationship between
two persons, who live or have, at any point of time, lived together. The provision does
not say that they should have lived together for a particular period. Even as per the case
of the petitioner, he had consensual sex with her, but there was no promise to marry her.
Thus, the averments made in the plaint as well as in the counter affidavit will make it
very clear that the petitioner and the respondent had a close relationship and had sex. As
stated already, the Act does not contemplate that the petitioner and the respondent should
live or have lived together for a particular period or for few days. From the averments
made by the petitioner in his plaint and in his counter affidavit, one can infer that both of
them seem to have shared household and lived together at least at the time having sex by
them. From the discussions made above, the Court is unable to accept the contention of
the learned counsel appearing for the petitioner that the application filed by the
respondent under the provisions of the said Act is not maintainable.
Section 12 contemplates the application to Magistrate and the proviso
contemplates an order passed by Magistrate under the provisions after he receives a
report from the Protection Officer. The proviso to Section 12 reads that the Magistrate
shall take in to consideration any domestic incident report received by him from the
Protection Officer or the service provider. Such proviso has not been incorporated in
Section 26 of the Act. Thus, a conjoint reading of both Sections 12 and 26 will make it
clear that when a Magistrate passes an order, he shall receive the report from the
62
Protection Officer but whereas such a report is not contemplated, when an order is
passed by the Civil Court or by the Family Court. Hence, Court is unable to accept the
contention of the learned counsel appearing for the petitioner that since the learned judge
of the Family Court has not obtained report of the Protection Officer, the order passed by
him is not maintainable.
(2008) 3 MLJ 221
Vimala Vs. State of Tamil Nadu
Constitution of India (1950), Articles 21, 2(5) - Personal Liberty –
compensation for illegal custody – Detenu had undergone the entire sentence pending
appeal against conviction – Released from the prison – Ultimately, criminal appeals filed
by the detenu and other co-accused dismissed - Fresh Warrant issued to re-arrest the
detenu even though he had undergone the sentence – No justification to issue fresh
warrant to arrest the detenu, who had undergone the sentence – Custody of the detenu is
illegal – Token compensation of Rs. 5,000/- awarded.
(2008) 3 MLJ (Crl) 1236
Dharumiah @ Dharumaiyan Vs. State rep. by Inspector of Police
Kariyapattinam Police Station, Tiruvarur District
Indian Penal Code (45 of 1860), Section 302 - Murder case – Accused
murdered his two wives – Motive – Accused wanted to dispose of his lands He
approached the Village Administrative Officer for chitt – Knowing that both the deceased
requested the Village Administrative Officer not to give chitta as they had objected to the
sale of the land - Accused inflicted indiscriminate cut injuries to both the deceased –
P.W. 3 is the daughter of the first wife and P.W.4 is the son of the second wife witnesses
the occurrence – Case registered – Trial Court convicted and imposed the imprisonment
for two counts – Appeal filed – Statement of the accused recorded under Section 164
Code of Criminal Procedure, 1973 (2 of 1974) – Mandatory procedure of certifying the
statement under Section 164(4) – Failure on the part of the Judicial Magistrate to certify
it – Effect of – Accused was in judicial custody, therefore, investigating officer had no
occasion to ascertain the willingness of the accused to give a voluntary statement as
shown in his affidavit – Cannot vitiate – Requisition for recording the statement under
Section 164 Code of Criminal Procedure, 1973 is not mandatory in all cases – It is not a
pre-requisite condition under Section 164(1) Code of Criminal Procedure, 1973 when the
accused is in judicial custody – Line of distinction drawn to record the confession
statement from an accused who is in police custody or in judicial custody – Obligation to
verity whether to confession statement is voluntarily made or not and certifying the
statement as per Section 164(4) Code of Criminal Procedure, 1973 will apply when the
request for recording the statement of an accused who is in police custody – Object is to
ensure that the accused should not be pressurized or forced – In the present case, the
accused was produced from police custody for recording the statement under Section 164
Code of Criminal Procedure, 1973 – Procedural defect of non-compliance of Section
164(4) Code of Criminal Procedure, 1973 may not affect the evidentiary value –
Statement made voluntarily – Conviction upheld – Appeal dismissed.
********
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