6th index LHSC
TABLE OF CASES REPORTED
Party Name Decided on P.No.
Bhagyalakshmi v. United Insurance Co. Ltd. 06/05/2009  513
Jaswant Singh v. State of Punjab 05/11/2009 538
Kaka @ Tilak Raj (Minor) Tr. Father v. State of H.P. 15/01/2010 576
Mithabhai Pashabhai Patel and Ors. v. State of Gujarat   06/05/2009  521
Mohd. Laiquiddin v. Kamala Devi Misra (Dead) by L.Rs. 05/01/2010  548
Musheer Khan @ Badshah Khan v. State of Madhya Pradesh 28/01/2010 528
P. Vijayan v. State of Kerala 27/01/2010 578
Poonam Chand Jain v. Fazru 28/01/2010 585
Ramesh Kumar v. State of Haryana 13/01/2010 592
Sasikumar v. State of Tamil Nadu 08/05/2009 545
Snehadeep Structures Private Limited v.
Maharashtra Small Scale Industrial Development Corporation Ltd.
05/01/2010 596
State of Karnataka v. Ganapathi Chaya Naik 22/01/2010 589
State of Madhya Pradesh v. Sheikh Shahid 15/04/2009 541
State of Rajasthan v. Shanti 21/04/2009 557
Union of India, etc v. Rakesh Kumar 12/01/2010 558
  
IMPORTANT POINTS
Accident--Liability of insurance company--Death of a person travelling in a private car--Whether the insurance policy covered the risk of the passenger travelling in the car--Such person indisputably would come within the purview of the liability to third party--There being no limitation with regard to coverage, in terms of the provisions of the Act, no upper limit is fixed--Liability of the insurer, thus unlike the old Act, may not be limited--Matter requires consideration by a Larger Bench.  
513
Discharge--Section 227 in the new Code confers special power on the Judge to discharge an accused at the threshold if upon consideration of the records and documents, he find that “there is not sufficient ground” for proceeding against the accused.
579
Discovery of  Fact--Proceedings based on compulsion cannot be read into discovery on the basis of facts voluntarily deposed.  
528
Discovery of Material--Non-compliance with the provision of S. 100(4) or S.100(5), CrPC--Reliability of the materials discovered pursuant to the facts deposed by the accused in police custody--If the discovery is otherwise reliable, its evidentiary value is not diluted just by reason of non-compliance with the provision of Section 100(4) or Section 100(5) of the Code.  
528
Dying declaration--Once the court is satisfied that the declaration was true and voluntary undoubtedly, it can base its conviction without any further corroboration--It cannot be laid down as an absolute rule of law that the dying declaration cannot form the sole basis of conviction unless it is corroborated.
545
Interest--The expression ‘appeal’ used in Section 7 of the Interest Act includes an application to set aside the arbitral award filed under Section 34 of the Arbitration Act, 1996. 
597
Murder--Circumstantial evidence--Murder by hired criminals--When a murder charge is to be proved solely on circumstantial evidence, presumption of innocence of the accused must have a dominant role--All the links in the chain of evidence must be proved beyond reasonable doubt and they must exclude the evidence of guilt of any other person than the accused
528
Narcotics--Non-compliance of S. 42(2) of N.D.P.S. Act--Acquittal upheld.
557
Partnership--Dissolution of--When there are only two partners constituting the partnership firm, on the death of one of them, the firm is deemed to be dissolved despite the existence of a clause which says otherwise
548
Rape on a minor girl--Defence that they were falsely implicated due to enmity--Alleged dispute over a common wall was not of such a grave nature compeling the entire family of the prosecutrix to go to the extent of the putting at stake its reputation and fair name of a young girl child to settle the scores with the accused.
538
Rape--Sentence of 7years reduced to 6 months by High Court as accused belonged to rural areas--Order set aside--This is not special reason to reduce sentence. 
541
Regularization of services--Daily wagers--Merely because a temporary employee or a casual wage worker is continued for a time beyond the term of his appointment, he would not be entitled to be absorbed in regular service or made permanent, merely on the strength of such continuance, if the original appointment was not made by following a due process of selection as envisaged by the relevant rules.                                                                                      
589
Reservation in Panchayats--Panchayats located in Scheduled Areas, the exclusive representation of Scheduled Tribes in the Chairperson positions of the same bodies at all three tiers is constitutionally permissible--Sections 17(B)(2), 36(B)(2) and 51(B)(2) of the Jharkhand Panchayat Reservation Act, 2001 are constitutionally valid provisions.
559
Retrenchment--Appellant worked for 3 years without break during his service tenure--No reason given of his termination--Termination in contravention of the provisions of Section 25F.
592
Second Complaint--Maintainability of--Second complaint was on almost identical facts which was raised in the first complaint and which was dismissed on merits--So the second complaint was not maintainable.
585
Test Identification Parade--Evidence in identification parade does not constitute substantive evidence.
528

STATUTORY INDEX
Arbitration and Conciliation Act, 1996
S.34--Interest Act, 1993, S.7--Interest--Delayed payment--Corporation issued a supply order in favour of appellant--Delay on the part of the Corporation in paying the bills--No reasonable reason given--Demanded interest on delayed payment--Matter referred to Arbitration--Arbitrator directed the Corporation to pay a sum of Rs.78,19,540.73 to the Appellant company--Pending proceedings for setting aside the Arbitral Award, appellant company pointed out for deposition of 75% of the Arbitral Award by the Corporation u/s 7 of the Interest Act--High Court allowed the appeal of corporation--Appeal--Whether the expression ‘appeal’ used in Section 7 of the Interest Act includes an application to set aside the arbitral award filed under Section 34 of the Arbitration Act, 1996?--Held; Yes--Term “appeal” appearing in Section 7 of the Interest Act should include an application under Section 34 as well--Impugned order of the High Court, set aside--Respondent directed to deposit 75% of the amount awarded by the Arbitrator in Court where the application for setting aside the award is now pending decision.; Snehadeep Structures Private Limited v. Maharashtra Small Scale Industrial Development Corporation Ltd. : 2010(1) Law Herald (SC) 596
Constitution of India, 1950
Art.14 and 243-M(4)(b)--Panchayats (Extension to the Scheduled Areas) Act, 1996, S. 5.4(g) Proviso--Jharkhand Panchayat Reservation Act, 2001, S. 21(B), 40(B) and 55(B)--Reservation--Panchayats--Reservation of chair persons--Writ petitions were filed to challenge the constitutional validity of the PESA Act, 1996 and certain other provisions of the Jharkhand Panchayati Raj Act, 2001--With regard to the PESA, the main challenge was directed against the second proviso to Section 4(g) whereby all the seats of Chairpersons of Panchayats at all three tiers in Scheduled Areas are to be reserved in favour of Scheduled Tribes--The petitioners before the High Court had contended that since every eligible individual has a right to vote and the right to contest elections for the seats and Chairperson positions in panchayats, the cent per cent reservation of Chairperson positions in favour of STs would curtail the rights of candidates other than those belonging to the ST category--Argued that the cent per cent reservation of Chairperson positions was excessive and hence violative of Article 14 of the Constitution--High Court did not state any specific reason for striking down the second proviso to Section 4(g) of the PESA Act, 1996 as well as Sections 21 (B), 40 (B) and 55 (B) of the JPRA Act, 2001 by holding these provisions to be unconstitutional--Held, that in Panchayats located in Scheduled Areas, the exclusive representation of Scheduled Tribes in the Chairperson positions of the same bodies is constitutionally permissible--This is so because Article 243-M(4)(b) expressly empowers Parliament to provide for ‘exceptions and modifications’ in the application of Part IX to Scheduled Areas--The provisos to Section 4(g) of the PESA contemplate certain exceptions to the norm of ‘proportionate representation’ and the same exceptional treatment was incorporated in the impugned provisions of the JPRA--Proviso to Section 4(g) of PESA Act and Sections 21(B), 40(B) and 55(B) of Jharkhand Panchayat Reservation Act, 2001 held to be constitutionally valid--Held; that Sections 17(B)(2), 36(B)(2) and 51(B)(2) of the Jharkhand Panchayat Reservation Act, 2001 are constitutionally valid provisions.; Union of India, etc v. Rakesh Kumar : 2010(1) Law Herald (SC) 558
Art. 32--Writ Petition--Custodial violation--Petitioner and his father had beaten some persons--Petitioner has referred to certain illegal acts committed by the respondents in violation of the directions of Supreme Court in D.K. Basu Vs. State and submitted that proceedings pending against the petitioner in various criminal courts be quashed, a fresh enquiry be ordered by the CBI or the District Judge, that compensation be awarded to the petitioner and that an FIR be lodged against respondent Nos. 2 and 4 as an attempt had been made by all the respondents collectively to extort money from the petitioner--Allegations that the petitioners had been beaten or an attempt had been made to extort money from them or anyone else has been denied--These prayers cannot be permitted to be raised in a writ petition directly in the Supreme Court under Article 32 of the Constitution--No violation of basic requirement as laid down in case D.K. Basu supra were infringed--Show cause notices issued to the respondents dropped.; Kaka @ Tilak Raj (Minor) Tr. Father v. State of H.P. : 2010(1) Law Herald (SC) 576
Art.243-M(4)(b)--Reservation in Panchayats--Limitation placed on the choices available to voters is an incidental consequence of the reservation policy--Compelling state interest in safeguarding the interests of weaker sections by ensuring their representation in local self-government clearly outweighs the competing interest in not curtailing the choices available to voters.; Union of India, etc v. Rakesh Kumar : 2010(1) Law Herald (SC) 558
Criminal Procedure Code, 1973
S.100(4) (5)--Non-compliance with the provision of S.100(4) or S.100(5), Cr.P.C.--Reliability of the materials discovered pursuant to the facts deposed by the accused in police custody depends on the facts of each case--If the discovery is otherwise reliable, its evidentiary value is not diluted just by reason of non-compliance with the provision of Section 100(4) or Section 100(5) of the Code--Safeguards in search--Proceedings based on compulsion cannot be read into discovery on the basis of facts voluntarily deposed.; Musheer Khan @ Badshah Khan v. State of Madhya Pradesh : 2010(1) Law Herald (SC) 528
S.162--Test Identification Parade--Evidence in test identification parade does not constitute substantive evidence and these parades are governed by Section 162 of Code of Criminal Procedure and the weight to be attached to such identification is a matter for the courts--Murder by hired criminals--As per the prosecution, A-1, A2, A3 & A-6 had paid money to A-4 and A-5 for killing the deceased and pursuant thereto A-4 and A-5 had shot the deceased from a close range--A-4 & A- 5 were arrested--A-4 was apprehended on 05.12.2000 and was arrested on 06.12.2000 and the identification parade was held on 10.12.2000--A-4 was kept in open police custody for all these days from 6th December to 10th December, 2000 prior to his identification--About the identification by him PW-3 deposed that he recognized all the three persons in Court even though the fact remains that out of the three accused persons A-7 absconded and never faced trial--Clear discrepancy in the evidence of PW-3 about identification--Contradiction between the versions of witnesses identifying and the person conducting the TI Parade--Acquittal on benefit of doubt.; Musheer Khan @ Badshah Khan v. State of Madhya Pradesh : 2010(1) Law Herald (SC) 528
S.167(2)--Criminal Procedure Code, 1973, S. 309--Criminal Procedure Code, 1973, S. 173(8)--Investigation--Investigation and re-investigation stand on different footing--Investigation into an offence completed by Police Challan submitted--Superior can order further investigation and not re-investigation--Court cannot give custody of accused to new agent for custodial interrogation.; Mithabhai Pashabhai Patel and Ors. v. State of Gujarat : 2010(1) Law Herald (SC) 521
S.173(8)--Criminal Procedure Code, 1973, S. 167(2)--Criminal Procedure Code, 1973, S. 309--Investigation--Investigation and re-investigation stand on different footing--Investigation into an offence completed by Police Challan submitted--Superior can order further investigation and not re-investigation--Court cannot give custody of accused to new agent for custodial interrogation.; Mithabhai Pashabhai Patel and Ors. v. State of Gujarat : 2010(1) Law Herald (SC) 521
S.203--Indian Penal Code, 1860, S. 420, 120-B and 426--Fraud--Second Complaint--Complaint that appellants who own and possess his own house came into contact with the respondent and ultimately won the confidence of the respondent--It was alleged that the respondent an illiterate, innocent person with a poor village background and he was induced to purchase some land for and on behalf of the appellants--Thus the respondent entered into an agreement to sell different plots of land of about 60 acres--Various sale deeds were executed and registered and respondent was given the impression that those deeds were registered in the names of appellants and the respondent jointly--Fraud was thus played on the respondent by the appellants and when the respondent realized the same he filed a complaint--Police failed to take any step, the complaint was filed before the Magistrate--Challenging the order of the Magistrate, a revision petition was filed in the High Court--Revision petition was also dismissed--Whether after an order of dismissal of complaint has attains finality, the complainant can file another complaint on almost identical facts without disclosing in the second complaint the fact of either filing of the first complaint or its dismissal--Held; No--Second complaint was on almost identical facts which was raised in the first complaint and which was dismissed on merits--So the second complaint was not maintainable--Second complaint not covered within exceptional circumstances--High Court fell into an error in not appreciating the legal position in its correct perspective while allowing the revision petition of the respondent--Appeal allowed.; Poonam Chand Jain v. Fazru : 2010(1) Law Herald (SC) 585
S.203--Indian Penal Code, 1860, S. 420, 120-B and 426--Fraud--Second Complaint--Maintainability of--Second complaint was on almost identical facts which was raised in the first complaint and which was dismissed on merits--So the second complaint was not maintainable.; Poonam Chand Jain v. Fazru : 2010(1) Law Herald (SC) 585
S.227--Discharge--If two views are possible and one of them gives rise to suspicion only, as distinguished from grave suspicion, the Trial Judge will be empowered to discharge the accused and at this stage he is not to see whether the trial will end in conviction or acquittal.; P. Vijayan v. State of Kerala : 2010(1) Law Herald (SC) 578
S.227--Discharge--Scope--Whereas strong suspicion may not take the place of the proof at the trial stage, yet it may be sufficient for the satisfaction of the Trial Judge in order to frame a charge against the accused.; P. Vijayan v. State of Kerala : 2010(1) Law Herald (SC) 578
S.227--Indian Penal Code, 1860, S.302 and 34--Discharge--Fake Encounter case--Appellant, he is a retired IPS officer aged about 85 years--He enjoyed a considerable reputation as an IPS officer and had retired as the Director General of Police--Whether the appellant established sufficient ground for discharge under Section 227 of the CrPC, and (ii) whether the Trial Judge as well as the High Court committed any error in rejecting the claim of the appellant--Trial Court dismissed appeal for discharge and framed charge u/s 302 r/w S. 34 I.P.C.--Revision dismissed--Appeal--From 1970 till 1998, there was no allegation that the encounter was a fake encounter--In the year 1998, reports appeared in various newspapers in Kerala that the killing of Varghese in the year 1970 was in a fake encounter and that senior police officers were involved--Section 227 in the new Code confers special power on the Judge to discharge an accused at the threshold if upon consideration of the records and documents, he find that “there is not sufficient ground” for proceeding against the accused--After considering the probability of the case, the Judge being satisfied by the existence of sufficient grounds against the appellant and another accused framed a charge--High Court rightly affirmed order of trial judge dismissing discharge petition.; P. Vijayan v. State of Kerala : 2010(1) Law Herald (SC) 578
S.309--Criminal Procedure Code, 1973, S. 167(2)--Criminal Procedure Code, 1973, S. 173(8)--Investigation--Investigation and re-investigation stand on different footing--Investigation into an offence completed by Police Challan submitted--Superior can order further investigation and not re-investigation--Court cannot give custody of accused to new agent for custodial interrogation.; Mithabhai Pashabhai Patel and Ors. v. State of Gujarat : 2010(1) Law Herald (SC) 521
S.354--Indian Penal Code, 1860, S. 376--Indian Penal Code, 1860, S. 53--Rape--Reduction in sentence--Court can reduce the sentence for adequate and special reasons--Sentence of 7years reduced to 6 months by High Court as accused belonged to rural areas--Order set aside--This is not special reason to reduce sentence--Undue sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy of law and society could not long endure under such serious threats--What is applicable to trial Courts regarding recording reasons for a departure for minimum sentence is equally applicable to the High Court--The only reason indicated by the High Court is that the accused belonged to rural areas--The same can by no stretch of imagination be considered either adequate or special.; State of Madhya Pradesh v. Sheikh Shahid : 2010(1) Law Herald (SC) 541
Evidence Act, 1872
S.27--Murder--Circumstantial evidence--Finger print expert--Murder by hired criminals--As per the prosecution, A-1, A2, A3 & A-6 had paid money to A-4 and A-5 for killing the deceased and pursuant thereto A-4 and A-5 had shot the deceased from a close range--A-4 & A- 5 were arrested--Evidence is only of hearing shots of fire arm and the further evidence is that the deceased was fired from a point blank range and he immediately fell down and in such a way as his body was half inside the car and half outside the same--No evidence to the effect that A-4 and A-5 had any occasion to touch the car and that too with the ring finger--Deceased had been shot from the point blank range and immediately the deceased fell down--No evidence of the deceased running away from his assailants or offering any resistance--Evidence of finger print on the car ceases to have any relevance--PW-23 (Finger print expert) has not given any evidence of finger print on the alleged weapon of offence which was discovered pursuant to the statement of accused persons under Section 27 of the Evidence Act--Evidence of finger print expert does help the prosecution.; Musheer Khan @ Badshah Khan v. State of Madhya Pradesh : 2010(1) Law Herald (SC) 528
S.30--Confession cannot be admitted in evidence against the coaccused under Section 30 since, the accused who made the confession was not tried along with the other accused.; P. Vijayan v. State of Kerala : 2010(1) Law Herald (SC) 578
S.32--Dying declaration--A dying declaration which suffers from infirmity cannot form the basis of conviction.; Sasikumar v. State of Tamil Nadu : 2010(1) Law Herald (SC) 545
Indian Penal Code, 1860
S.53--Indian Penal Code, 1860, S. 376--Criminal Procedure Code, 1973, S. 354--Rape--Reduction in sentence--Court can reduce the sentence for adequate and special reasons--Sentence of 7years reduced to 6 months by High Court as accused belonged to rural areas--Order set aside--This is not special reason to reduce sentence--Undue sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy of law and society could not long endure under such serious threats--What is applicable to trial Courts regarding recording reasons for a departure for minimum sentence is equally applicable to the High Court--The only reason indicated by the High Court is that the accused belonged to rural areas--The same can by no stretch of imagination be considered either adequate or special.; State of Madhya Pradesh v. Sheikh Shahid : 2010(1) Law Herald (SC) 541
S.302--Evidence Act, 1872, Section 32--Murder--Dying declaration--Accused poured kerosene oil on her wife and set her on fire--Conviction of accused on basis of dying declaration upheld despite the fact that mother of deceased did not support the prosecution version--Once the court is satisfied that the declaration was true and voluntary undoubtedly, it can base its conviction without any further corroboration--It cannot be laid down as an absolute rule of law that the dying declaration cannot form the sole basis of conviction unless it is corroborated.; Sasikumar v. State of Tamil Nadu : 2010(1) Law Herald (SC) 545
S.302--Evidence Act, S. 27--Murder--Circumstantial evidence--Finger print expert--Murder by hired criminals--As per the prosecution, A-1, A2, A3 & A-6 had paid money to A-4 and A-5 for killing the deceased and pursuant thereto A-4 and A-5 had shot the deceased from a close range--A-4 & A- 5 were arrested--Evidence is only of hearing shots of fire arm and the further evidence is that the deceased was fired from a point blank range and he immediately fell down and in such a way as his body was half inside the car and half outside the same--No evidence to the effect that A-4 and A-5 had any occasion to touch the car and that too with the ring finger--Deceased had been shot from the point blank range and immediately the deceased fell down--No evidence of the deceased running away from his assailants or offering any resistance--Evidence of finger print on the car ceases to have any relevance--PW-23 (Finger print expert) has not given any evidence of finger print on the alleged weapon of offence which was discovered pursuant to the statement of accused persons under Section 27 of the Evidence Act--Evidence of finger print expert does help the prosecution.; Musheer Khan @ Badshah Khan v. State of Madhya Pradesh : 2010(1) Law Herald (SC) 528
S.302, 201 & 34--Criminal Procedure Code, 1973, S. 100(4) and 100(5)--Arms Act, 1959, S. 25(1)(b) and 27--Murder--Acquittal--Circumstantial evidence--Conspiracy--Death penalty--Murder by hired criminals--As per the prosecution, A-1, A2, A3 & A-6 had paid money to A-4 and A-5 for killing the deceased and pursuant thereto A-4 and A-5 shot the deceased from a close range--A-4 & A- 5 were arrested--Charge sheet was filed against A-1 to A-7--Trial Court acquitted A-3 and convicted A-4 and A-5 u/s. 302 r/w S. 120B, IPC and Ss. 25(1)(b) and 27 of the Arms Act and awarded death penalty - A-1, A-2 and A-6 were convicted u/Ss. 302 r/w S. 120B and were awarded life sentence--HC confirmed the death sentence against A-4 and A-5, but acquitted the other three accused--Appeal--Case based on circumstantial evidence and it rests on the evidence of PW- 3 and PW-4--Circumstantial evidence against A-4 and A-5 do not constitute a complete chain consistent with the guilt of A-4 and A-5 and incompatible with their innocence--Assessing evidence of identification of the accused persons by PW-3 and PW-4--Identification by PW-4 cannot be relied upon as grave doubts about the presence of PW-4 at the place of occurrence--Contradiction between the versions of witnesses identifying and the person conducting the TI Parade--Evidence of finger print expert is not substantive evidence--Finger print expert has not given any evidence of finger print on the alleged weapon of offence--Non-compliance with the provision of s.100(4) or s.100(5), CrPC--Safeguards in search proceedings based on compulsion cannot be read into discovery on the basis of facts voluntarily deposed--Held, acquittal of A-1, A-2, A-3 and A-6 which was upheld by Supreme Court casts a serious doubt--Benefit of doubt to be given to A-4 and A-5--Order of conviction of A-4 and A-5 set aside--Acquittal on benefit of doubt.; Musheer Khan @ Badshah Khan v. State of Madhya Pradesh : 2010(1) Law Herald (SC) 528
S.302 and 34--Criminal Procedure Code, 1973, S. 227--Murder--Discharge--Fake Encounter case--Appellant, he is a retired IPS officer aged about 85 years--He enjoyed a considerable reputation as an IPS officer and had retired as the Director General of Police--Whether the appellant established sufficient ground for discharge under Section 227 of the CrPC, and (ii) whether the Trial Judge as well as the High Court committed any error in rejecting the claim of the appellant--Trial Court dismissed appeal for discharge and framed charge u/s 302 r/w S. 34 I.P.C.--Revision dismissed--Appeal--From 1970 till 1998, there was no allegation that the encounter was a fake encounter--In the year 1998, reports appeared in various newspapers in Kerala that the killing of Varghese in the year 1970 was in a fake encounter and that senior police officers were involved--Section 227 in the new Code confers special power on the Judge to discharge an accused at the threshold if upon consideration of the records and documents, he find that “there is not sufficient ground” for proceeding against the accused--After considering the probability of the case, the Judge being satisfied by the existence of sufficient grounds against the appellant and another accused framed a charge--High Court rightly affirmed order of trial judge dismissing discharge petition.; P. Vijayan v. State of Kerala : 2010(1) Law Herald (SC) 578
Ss.302, 201 and 34--Murder--Circumstantial evidence--In case of circumstantial evidence, one must look for complete chain of circumstances and not on snapped and scattered links which do not make a complete sequence--If conviction rests solely on circumstantial evidence, it must create a network from which there is no escape for the accused--Second principle is that all the links in the chain of evidence must be proved beyond reasonable doubt and they must exclude the evidence of guilt of any other person than accused--When a murder charge is to be proved solely on circumstantial evidence, presumption of innocence of the accused must have a dominant role.; Musheer Khan @ Badshah Khan v. State of Madhya Pradesh : 2010(1) Law Herald (SC) 528
S.376--Indian Penal Code, 1860, S. 53--Criminal Procedure Code, 1973, S. 354--Rape--Reduction in sentence--Court can reduce the sentence for adequate and special reasons--Sentence of 7years reduced to 6 months by High Court as accused belonged to rural areas--Order set aside--This is not special reason to reduce sentence--Undue sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy of law and society could not long endure under such serious threats--What is applicable to trial Courts regarding recording reasons for a departure for minimum sentence is equally applicable to the High Court--The only reason indicated by the High Court is that the accused belonged to rural areas--The same can by no stretch of imagination be considered either adequate or special.; State of Madhya Pradesh v. Sheikh Shahid : 2010(1) Law Herald (SC) 541
S.376--Rape--Rape on a minor girl--Defence of accused was that they were falsely implicated due to enmity--Parents will not go the extent lodging false report at the stake of reputation of the girl--Alleged dispute over a common wall was not of such a grave nature compeling the entire family of the prosecutrix to go to the extent of the putting at stake its reputation and fair name of a young girl child to settle the scores with the accused--Accused convicted and sentenced to 10 years imprisonment.; Jaswant Singh v. State of Punjab : 2010(1) Law Herald (SC) 538
S.376--Rape--When a woman is ravished what is inflicted is not merely physical injury but the deep sense of some deathless shame--Undue sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy of law.; State of Madhya Pradesh v. Sheikh Shahid : 2010(1) Law Herald (SC) 541
S.420, 120-B and 426--Criminal Procedure Code, 1973, S. 203--Fraud--Second Complaint--Complaint that appellants who own and possess his own house came into contact with the respondent and ultimately won the confidence of the respondent--It was alleged that the respondent an illiterate, innocent person with a poor village background and he was induced to purchase some land for and on behalf of the appellants--Thus the respondent entered into an agreement to sell different plots of land of about 60 acres--Various sale deeds were executed and registered and respondent was given the impression that those deeds were registered in the names of appellants and the respondent jointly--Fraud was thus played on the respondent by the appellants and when the respondent realized the same he filed a complaint--Police failed to take any step, the complaint was filed before the Magistrate--Challenging the order of the Magistrate, a revision petition was filed in the High Court--Revision petition was also dismissed--Whether after an order of dismissal of complaint has attains finality, the complainant can file another complaint on almost identical facts without disclosing in the second complaint the fact of either filing of the first complaint or its dismissal--Held; No--Second complaint was on almost identical facts which was raised in the first complaint and which was dismissed on merits--So the second complaint was not maintainable--Second complaint not covered within exceptional circumstances--High Court fell into an error in not appreciating the legal position in its correct perspective while allowing the revision petition of the respondent--Appeal allowed.; Poonam Chand Jain v. Fazru : 2010(1) Law Herald (SC) 585
S.420, 120-B and 426--Criminal Procedure Code, 1973, S. 203--Fraud--Second Complaint--Maintainability of--Second complaint was on almost identical facts which was raised in the first complaint and which was dismissed on merits--So the second complaint was not maintainable.; Poonam Chand Jain v. Fazru : 2010(1) Law Herald (SC) 585
Industrial Disputes Act, 1947
S.25-F--Retrenchment--Workman had worked with the Department for a period of more than 240 days within 12 calendar months preceding the date of termination i.e. 31.01.1993, and in view of non-compliance of Section 25F of the Act, he was entitled to reinstatement--Instead of regularization of services, the appellant’s services as Mali terminated without notice or retrenchment compensation--Appellant made reference before Labour Court--Labour Court concluded that the workman worked with the Department for a period of more than 240 days preceding the date of termination, thus directed reinstatement--High Court set aside the award of the Labour Court--Appeal--Appellant worked for 3 years without break during his service tenure--No reason given of his termination--Termination in contravention of the provisions of Section 25-F--High Court ought not to have interfered with the factual finding rendered by the Labour Court--Impugned order of the High Court set aside and that of the Labour Court restored.; Ramesh Kumar v. State of Haryana : 2010(1) Law Herald (SC) 592
Interest Act, 1993
S.7--Arbitration and Conciliation Act, 1996, S. 34--Interest--Delayed payment--Corporation issued a supply order in favour of appellant--Delay on the part of the Corporation in paying the bills--No reasonable reason given--Demanded interest on delayed payment--Matter referred to Arbitration--Arbitrator directed the Corporation to pay a sum of Rs. 78,19,540.73 to the Appellant company--Pending proceedings for setting aside the Arbitral Award, appellant company pointed out for deposition of 75% of the Arbitral Award by the Corporation u/s 7 of the Interest Act--High Court allowed the appeal of corporation--Appeal--Whether the expression ‘appeal’ used in Section 7 of the Interest Act includes an application to set aside the arbitral award filed under Section 34 of the Arbitration Act, 1996?--Held; Yes--Term “appeal” appearing in Section 7 of the Interest Act should include an application under Section 34 as well--Impugned order of the High Court, set aside--Respondent directed to deposit 75% of the amount awarded by the Arbitrator in Court where the application for setting aside the award is now pending decision.; Snehadeep Structures Private Limited v. Maharashtra Small Scale Industrial Development Corporation Ltd. : 2010(1) Law Herald (SC) 596
Jharkhand Panchayat Reservation Act, 2001
S.21(B), 40(B) and 55(B)--Constitution of India, 1950, Art. 14 and 243-M(4)(b)--Panchayats (Extension to the Scheduled Areas) Act, 1996, S. 5.4(g) Proviso--Reservation--Panchayats--Reservation of chair persons--Writ petitions were filed to challenge the constitutional validity of the PESA Act, 1996 and certain other provisions of the Jharkhand Panchayati Raj Act, 2001--With regard to the PESA, the main challenge was directed against the second proviso to Section 4(g) whereby all the seats of Chairpersons of Panchayats at all three tiers in Scheduled Areas are to be reserved in favour of Scheduled Tribes--The petitioners before the High Court had contended that since every eligible individual has a right to vote and the right to contest elections for the seats and Chairperson positions in panchayats, the cent per cent reservation of Chairperson positions in favour of STs would curtail the rights of candidates other than those belonging to the ST category--Argued that the cent per cent reservation of Chairperson positions was excessive and hence violative of Article 14 of the Constitution--High Court did not state any specific reason for striking down the second proviso to Section 4(g) of the PESA Act, 1996 as well as Sections 21 (B), 40 (B) and 55 (B) of the JPRA Act, 2001 by holding these provisions to be unconstitutional--Held, that in Panchayats located in Scheduled Areas, the exclusive representation of Scheduled Tribes in the Chairperson positions of the same bodies is constitutionally permissible--This is so because Article 243-M(4)(b) expressly empowers Parliament to provide for ‘exceptions and modifications’ in the application of Part IX to Scheduled Areas--The provisos to Section 4(g) of the PESA contemplate certain exceptions to the norm of ‘proportionate representation’ and the same exceptional treatment was incorporated in the impugned provisions of the JPRA--Proviso to Section 4(g) of PESA Act and Sections 21(B), 40(B) and 55(B) of Jharkhand Panchayat Reservation Act, 2001 held to be constitutionally valid--Held; that Sections 17(B)(2), 36(B)(2) and 51(B)(2) of the Jharkhand Panchayat Reservation Act, 2001 are constitutionally valid provisions.; Union of India, etc v. Rakesh Kumar : 2010(1) Law Herald (SC) 558
Motor Vehicles Act, 1988
S.166--Liability of insurance company--Death of a person travelling in a private car--While travelling in a private car owned by one K, respondent No.7 met with an accident and succumbed to the resulting injuries--Appellants are his heirs and legal representatives--Question before the High Court was as to whether the insurance policy covered the risk of the passenger travelling in the car--High Court by its impugned judgment answered the said question in favour of the 1st respondent--Liability of the insurer may not be limited--Contention that insurance policy being a comprehensive one, the High Court committed a serious error in opining that the risk of a passenger travelling in the car was not covered there under--Also contended that second proviso appended to Section 95(1)(b) of the Motor Vehicles Act, 1939 was deleted by the Parliament in the 1988 Act, the liability of a passenger in a private vehicle must also be included in the policy in terms of the provisions of the 1988 Act--Policy in question was in respect of a private car--Policy in question is a package policy--Contract of insurance if given its face value covers the risk not only of a third party but also of persons travelling in the car including the owner thereof--Schedule of the policy does not indicate the limits of liability--It does not indicate exclusion of any person--It takes any person including ‘insured’--Such person indisputably would come within the purview of the liability to third party--There being no limitation with regard to coverage, in terms of the provisions of the Act, no upper limit is fixed--Liability of the insurer, thus unlike the old Act, may not be limited--Matter requires consideration by a Larger Bench.; Bhagyalakshmi v. United Insurance Co. Ltd. : 2010(1) Law Herald (SC) 513
S.166--Liability of insurance company--In a case where third party is involved, the liability of the insurance company would be unlimited--Where, however, compensation is claimed for the death of the owner or another passenger of the vehicle, the contract of insurance being governed by the contract qua contract, the claim of the insurance company would depend upon the terms thereof.; Bhagyalakshmi v. United Insurance Co. Ltd. : 2010(1) Law Herald (SC) 513
S.166--Liability of insurance company--Policy in question is a package policy--Contract of insurance if given its face value covers the risk not only of a third party but also of persons traveling in the car including the owner thereof--Question as to whether the policy in question is a comprehensive policy or only an Act policy--Where the policy is a statutory policy or an act only policy, a gratuitous passenger in a private vehicle would not be covered for a bodily injury or death under the policy of insurance--Nothing prevents the insurance company from issuing a wider coverage i.e. assuming a greater risk liability--Where the policy is a Package Policy for Private Cars, terms of the policy and the applicable conditions as notified by the Tariff Advisory Committee would apply.; Bhagyalakshmi v. United Insurance Co. Ltd. : 2010(1) Law Herald (SC) 513
S.166--Liability of insurance company--Whether gratuitous passengers traveling in a private car or pillion riders carried on two-wheelers are automatically covered under a package policy/comprehensive policy--Matter requires consideration by a Larger Bench.; Bhagyalakshmi v. United Insurance Co. Ltd. : 2010(1) Law Herald (SC) 513
Narcotic Drugs & Psychotropic Substances Act, 1985
S.8, 18 and 42--Acquittal--Sale and purchase of opium--Secret information--Police officer reached the place and found that the respondent was carrying a bag in her hand--She was stopped and searched--The bag was found to carry about 10 kgs. of opium--On the information given by her, another 20 kgs. were seized from near her residential house--Violation of the provisions of Section 42 (2)--Trial Court and the High Court have found that there was non- compliance with the requirement of Sec.42(2)--Accused rightly acquitted.; State of Rajasthan v. Shanti : 2010(1) Law Herald (SC) 557
Panchayats (Extension to the Scheduled Areas) Act, 1996
S.5.4(g)--Proviso--Jharkhand Panchayat Reservation Act, 2001, S. 21(B), 40(B) and 55(B)--Constitution of India, 1950, Art. 14 and 243-M(4)(b)--Reservation--Panchayats--Reservation of chair persons--Writ petitions were filed to challenge the constitutional validity of the PESA Act, 1996 and certain other provisions of the Jharkhand Panchayati Raj Act, 2001--With regard to the PESA, the main challenge was directed against the second proviso to Section 4(g) whereby all the seats of Chairpersons of Panchayats at all three tiers in Scheduled Areas are to be reserved in favour of Scheduled Tribes--The petitioners before the High Court had contended that since every eligible individual has a right to vote and the right to contest elections for the seats and Chairperson positions in panchayats, the cent per cent reservation of Chairperson positions in favour of STs would curtail the rights of candidates other than those belonging to the ST category--Argued that the cent per cent reservation of Chairperson positions was excessive and hence violative of Article 14 of the Constitution--High Court did not state any specific reason for striking down the second proviso to Section 4(g) of the PESA Act, 1996 as well as Sections 21 (B), 40 (B) and 55 (B) of the JPRA Act, 2001 by holding these provisions to be unconstitutional--Held, that in Panchayats located in Scheduled Areas, the exclusive representation of Scheduled Tribes in the Chairperson positions of the same bodies is constitutionally permissible--This is so because Article 243-M(4)(b) expressly empowers Parliament to provide for ‘exceptions and modifications’ in the application of Part IX to Scheduled Areas--The provisos to Section 4(g) of the PESA contemplate certain exceptions to the norm of ‘proportionate representation’ and the same exceptional treatment was incorporated in the impugned provisions of the JPRA--Proviso to Section 4(g) of PESA Act and Sections 21(B), 40(B) and 55(B) of Jharkhand Panchayat Reservation Act, 2001 held to be constitutionally valid--Held; that Sections 17(B)(2), 36(B)(2) and 51(B)(2) of the Jharkhand Panchayat Reservation Act, 2001 are constitutionally valid provisions.; Union of India, etc v. Rakesh Kumar : 2010(1) Law Herald (SC) 558
Partnership Act, 1923
S.42(C)--Partnership--Dissolution of partnership firm--Dissolution of the partnership firm on account of death of a partner--When there are only two partners constituting the partnership firm, on the death of one of them, the firm is deemed to be dissolved despite the existence of a clause which says otherwise--A partnership is a contract between the partners--There cannot be any contract unilaterally without the acceptance by the other partner.; Mohd. Laiquiddin v. Kamala Devi Misra (Dead) by L.Rs. : 2010(1) Law Herald (SC) 548
S.42(C)--Partnership--Whether the High Court was justified in permitting the Respondents to remove the movables from the disputed property, contrary to the deed of partnership entered into between the original plaintiff and the original defendant?--Held; Yes--One of the partner died--Partnership firm stood dissolved on account of death of one of the partners--Appellants are entitled to the exclusive possession of the land and the Respondents are entitled to take away the movables from the property and recover the value of the buildings and structure embedded to the land--It has to be assessed by the technically qualified person--Appellants are liable to pay the value of the remaining structures after adjusting the amount if any due to the Appellants--No infirmity in the reasoning given by the learned Judge of the High Court--It is true that there was no intention from either of the parties to treat these properties as the properties of the firm--Land as well as the building with the fixtures etc., to be vested with the original plaintiff (since deceased), after the expiry of term of 42 years--It is also true that directing the delivery of the entire property to the appellant would cause prejudice to the rights of the Respondents and would put him to loss.; Mohd. Laiquiddin v. Kamala Devi Misra (Dead) by L.Rs.: 2010(1) Law Herald (SC) 548
Service Law
Service Law--Regularization of services--Daily wagers--Respondents were working on daily wages either as plantation watchmen or wireless operators or helpers--They claimed regularization of their services in light of the fact that they had been in continuous service for more than ten years since the day of their initial appointment--Appellants, however, refuted their claim on the ground that the scheme of regularization pertained to only those persons who had been working prior to 01.07.1984--Tribunal allowed the claim of the respondents--High Court upheld the directions given by the Tribunal to the appellants to consider the cases of the respondents for regularization of their service--Appeal--Respondents had not been recruited as per the Recruitment Rules and also because the respondents had been recruited after 01.07.1984 whereas the scheme of regularization pertained to only those who had been working prior to the aforesaid date supreme Court held that merely because a temporary employee or a casual wage worker is continued for a time beyond the term of his appointment, he would not be entitled to be absorbed in regular service or made permanent, merely on the strength of such continuance, if the original appointment was not made by following a due process of selection as envisaged by the relevant rules--Orders of the High Court as also of the Tribunal set aside.; State of Karnataka v. Ganapathi Chaya Naik : 2010(1) Law Herald (SC) 589

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